# United States v. Fernando Nino, Gabriel Nino, Najah Dawood Konja, Issam Hermiz, Hector Alvarez, Basil Mezy > Court of Appeals for the Eleventh Circuit · August 6, 1992 · 967 F.2d 1508 URL: https://www.frixlaw.com/law-library/cases/9483092 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Fernando NINO, Gabriel Nino, Najah Dawood Konja, Issam Hermiz, Hector Alvarez, Basil Mezy, Defendants-Appellants - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** August 6, 1992 - **Citations:** 967 F.2d 1508; 1992 U.S. App. LEXIS 17779; 1992 WL 168236 - **Precedential status:** Published - **Opinion:** Dissent by Atkins - **Judges:** Fay, Edmondson, Atkins - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9483092 ## How later opinions describe it (automated extraction) - holding that possessing co-conspirators were unavailable because one died and one was granted immunity - applying the enhancement even though the weapons were possessed by co-conspirators who are not charged because one died before the conspiracy ended and the other cooperated with the government in exchange for immunity - clarifying that “nowhere in the Otero opinion is it said that enhancement is allowable only if the three conditions set out in the opinion are met” - noting that “nowhere in the Otero opinion is it said that enhancement is allowable only if the three conditions set out in the opinion are met.” ## Opinion text ATKINS, District Judge, dissenting: While I concur in the balance of the majority opinion, I respectfully dissent from the majority’s conclusion that the district court correctly enhanced defendant Konja’s base offense level for firearm possession. Under the Sentencing Guidelines, “[i]f a firearm or other dangerous weapon was possessed during the commission of the offense, increase [the offense level] by 2 levels.” U.S.S.G. § 2Dl.l(b). In this Circuit, sentence enhancement for a co-conspirator’s possession of firearms is proper if three conditions are met: first, the possessor must be charged as a co-conspirator; second, the co-conspirator must be found to have been possessing the firearm in furtherance of the conspiracy; and third, the defendant who is to receive the enhanced sentence must have been a member of the conspiracy at the time of the firearms possession. United, States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (per curiam) (citing United States v. Missick, 875 F.2d 1294, 1301-02 (7th Cir.1989)); see also United States v. Martinez, 924 F.2d 209, 210 (11th Cir.1991) (reiterating Otero test), cert, denied, Duarte v. United States, — U.S.-, 112 S.Ct. 203 , 116 L.Ed.2d 163 (1991). In this case, the actual possessors of the firearms, Kalasho and Askar, were not charged as co-conspirators. Arguably, they could qualify as “those persons known and unknown to the Grand Jury” who participated in the conspiracy. However, this argument was rejected in United States v. Missick, a Seventh Circuit case cited favorably in Otero , where the court held that a firearm sentence enhancement may not be based on possession by a person who has not been named in the indictment. Mis-sick, 875 F.2d at 1301-02 . This is so even if the indictment charges “persons known and unknown” in the conspiracy. Id. Because Kalasho and Askar were not charged in the indictment, I believe that the district court erred in departing from the sentencing guidelines. The majority’s broad reading of Otero in the present case is contrary to the Sentencing Commission’s intent that courts impose sentences based on charged conduct as opposed to actual conduct. In explaining why it chose a “charged offense” system, the Sentencing Commission stated that it found “no practical way to reconcile the need for a fair adjudicatory procedure with the need for a speedy sentencing process given the potential existence of hosts of adjudicated ‘real harm’ facts in many typical cases.” U.S.S.G., Ch. 1, Part A, § 4(a). The Mis-sick court explained that the Sentencing Commission sought to devise a “charge offense” system, where defendants are sentenced on the basis of conduct charged and convicted, rather than a “real offense” system where the defendant may be sentenced on the actual conduct independently of whether the conduct constituted elements of the charged offense. Sentencing Guidelines, Chap. One, Part A, § 4(a), at 1.5 (1987). However, the Guidelines retain some real offense attributes, including the specific offense characteristics which allow the district court to reduce or elevate the offense level based on individual characteristics of the defendant, such as possession of a dangerous weapon. Here, the specific offense characteristic of possession of a firearm by Missick was not present to justify elevating the offense level ... and Missick was not charged as a co-conspirator with the individuals who were charged with possession of firearms. Therefore, sentencing the defendant for firearm possession is clearly inconsistent with the Sentencing Commission’s intent to impose sentence based on the charged offense only. 875 F.2d at 1302 . Similarly, sentencing Konja for firearm possession is inconsist *1516 ent with the Sentencing Commission’s intent to impose a sentence based on the charged offense. Like Missick, Konja did not possess a firearm nor was he charged as a co-conspirator with the individuals who possessed the firearms. In light of the Sentencing Commission’s intent that sentences be based on charged conduct, I do not believe that the language of Otero , that “the possessor [of the firearm] must be charged as a co-conspirator,” should be dismissed as mere dicta. Otero, 890 F.2d at 367 (emphasis added). Therefore, I respectfully DISSENT. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9483092. Public record. Not legal advice.