Permissible Upward Variance for Unaccounted Firearm Characteristics Under §924(c)(1)(A)(i) and U.S.S.G. §2K2.4(b)

Introduction

United States v. Marrero-Burgos, 22‐1387 (1st Cir. Apr. 2, 2025), addresses the scope of a district court’s discretion to impose an upward variance when the Sentencing Guidelines and the underlying statutory framework do not account for the specific danger posed by a fully automatic (machine-gun–style) pistol in a §924(c)(1)(A)(i) conviction. The Court of Appeals for the First Circuit affirmed a 108-month sentence—24 months above the Guidelines range—emphasizing that neither 18 U.S.C. §924(c)(1)(A)(i) nor U.S.S.G. §2K2.4(b) takes into account the special risks of a modified, automatic-fire pistol.

Defendant-Appellant Jean Marrero-Burgos pleaded guilty to: (1) possession of a firearm in furtherance of drug trafficking, 18 U.S.C. §924(c)(1)(A)(i); and (2) possession with intent to distribute crack cocaine, 21 U.S.C. §841(a)(1). The parties jointly recommended a 90-month sentence; the district court imposed 108 months, citing the weapon’s dangerousness, the large quantity of ammunition, community crime trends in Puerto Rico, and recidivism data. Marrero appealed, contending (1) that the court erred in finding he possessed nearly 600 rounds of ammunition, and (2) that it unduly relied on community factors.

Summary of the Judgment

The First Circuit unanimously affirmed. It held:

• Possession of Ammunition: The district court’s finding—by a preponderance of the evidence—that Marrero “constructively possessed” a red bag containing 572 rounds of 5.56 calibre and nine rounds of 9 mm ammunition was not clearly erroneous. The court reasonably relied on (i) investigative evidence, (ii) a video of the ammunition on Marrero’s phone, and (iii) his license found in the same room.
• Upward Variance: Neither §924(c)(1)(A)(i) nor U.S.S.G. §2K2.4(b) addresses the specific danger of machine-gun–style pistols. In light of congressional intent—manifest in §924(c)(1)(B)(ii), which carries a 30-year minimum for machine guns—the district court properly varied upward based on the weapon’s enhanced lethality, the quantity of ammunition, dismissed charges under §924(c)(1)(B)(ii), and community-based considerations.
• Procedural & Substantive Reasonableness: The district court thoroughly explained its reasoning and balanced individual record facts against community crime data. The variance was procedurally sound and substantively reasonable.

Analysis

Precedents Cited

• Factual Finding Standard:
  • United States v. Munyenyezi, 781 F.3d 532 (1st Cir. 2015) – facts affecting neither statutory minimum nor maximum require only a preponderance of reliable evidence.
  • Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New Jersey, 530 U.S. 466 (2000) – facts increasing mandatory minimums must be submitted to a jury, but do not constrain sentencing‐court findings that do not affect the statutory floor or ceiling.
  • United States v. Morgan, 384 F.3d 1 (1st Cir. 2004) – reliability requirement for sentencing‐court factfinding.
  • United States v. Rogers, 17 F.4th 229 (1st Cir. 2021) – district courts may draw commonsense inferences from circumstantial evidence.
• Sentencing Discretion & Variance:
  • United States v. Rivera-Berríos, 968 F.3d 130 (1st Cir. 2020) – upward variances are unreasonable if based on factors already “fully accounted for” by the Guidelines.
  • United States v. Morales-Vélez, 100 F.4th 334 (1st Cir. 2024) & United States v. Aponte-Colón, 104 F.4th 402 (1st Cir. 2024) – §924(c)(1)(A)(i) and U.S.S.G. §2K2.4(b) do not account for the danger of machine guns; district courts may therefore vary upward on that ground.
  • United States v. Carrero-Hernández, 643 F.3d 344 (1st Cir. 2011) – clear‐error review when there are two plausible inferences from the record.
  • United States v. Flores-Machicote, 706 F.3d 16 (1st Cir. 2013) – sentencing courts may rely on community characteristics so long as they also engage case-specific facts and personal history.

Legal Reasoning

The panel’s analysis proceeded in three steps:

1. Factfinding on Ammunition Possession: Applying clear-error review, the court observed that sentencing facts need only be proved by a preponderance of reliable evidence. The video of the bag of ammunition on Marrero’s phone and his identification within the same room supported a commonsense inference of constructive possession.
2. Permissibility of Upward Variance: The court distinguished Rivera-Berríos, which invalidated variances based on factors accounted for in U.S.S.G. §2K2.1. Here, neither §924(c)(1)(A)(i) nor Guideline §2K2.4(b) contemplates machine-gun–style pistols. Congress’s separate 30-year minimum for machine guns under §924(c)(1)(B)(ii) confirms that enhanced risk. Therefore, the district court legitimately used the weapon’s special danger as an individualized basis to exceed the Guidelines range.
3. Reasonableness Review:
   • Procedural Reasonableness: The district court explained its “reasoned basis” by listing both case‐specific (weapon modification, ammunition quantity, dismissed charges) and community‐based factors (Puerto Rico’s violent crime rate, recidivism data). This mix adheres to the requirement that a variance must rest on “sufficiently compelling” reasons.
   • Substantive Reasonableness: A 24-month upward variance (108 vs. 84 months) fell “within the broad universe of reasonable outcomes,” especially in light of similar or larger variances approved in Morales-Vélez and Aponte-Colón.

Impact

United States v. Marrero-Burgos clarifies that, when neither the statutory minimum nor the applicable guideline accounts for a particular weapon’s enhanced lethality, district courts may impose an upward variance based on that weapon’s danger:

• Sentencing judges retain broad discretion under 18 U.S.C. §3553(a) to consider the unique hazards of fully automatic firearms when Guidelines are silent.
• Sentences under §924(c)(1)(A)(i) and U.S.S.G. §2K2.4(b) will no longer be presumed to capture the full spectrum of risk posed by machine-gun–style weapons.
• Defendants in similar circumstances should anticipate that district courts may impose significant upward variances based on weapon modification and ammunition stockpiles, even if those factors do not affect the statutory floor.

Complex Concepts Simplified

• Constructive Possession: When you don’t literally hold an object in your hand, you can still “possess” it if you have the power and intent to control it—e.g., owning the room where it is stored or having the keys.
• Preponderance of the Evidence: A standard meaning “more likely than not.” In sentencing, judges can rely on facts proven by a 51% likelihood, as long as they don’t increase statutory minimums/maximums.
• Upward Variance vs. Departure: A departure changes a Guidelines category under the Commission’s rules; a variance is an exercise of discretionary judgment under 18 U.S.C. §3553(a), independent of the Guidelines.
• Advisory Guidelines: Since United States v. Booker (2005), the Sentencing Guidelines are no longer mandatory. Courts must calculate the Guidelines range but may vary based on statutory sentencing factors.
• §3553(a) Factors: Courts must consider: the nature and circumstances of the offense; the defendant’s history; the need for deterrence, protection, and rehabilitation; the kinds of sentences available; Sentencing Commission policy statements; and unwarranted sentencing disparities.

Conclusion

United States v. Marrero-Burgos establishes a clear principle: when Congress and the Sentencing Commission do not account for the special danger of a weapon—here, a fully automatic pistol—district courts may properly impose upward variances under §3553(a). This decision refines the boundary between “accounted‐for” factors and those that remain open to judicial discretion, ensuring that the advisory Guidelines do not artificially constrain a court’s ability to protect the public from unusually lethal firearms.

By affirming the 108-month term, the First Circuit underscores the continuing vitality of individualized sentencing and confirms that district courts remain the primary arbiters of how best to calibrate punishment to both the defendant’s conduct and broader community safety concerns.