United States v. D'Amario ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1466
UNITED STATES,
Appellee,
v.
ARTHUR D’AMARIO, III,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]*
Before
Lipez, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Arthur D’Amario, III on brief pro se.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Stephanie S. Browne, Assistant United States
Attorneys, on brief for appellee.
February 12, 2001
_________________
*Of the District of New Hampshire, sitting by designation.
Per Curiam. Arthur D'Amario, III, appeals his
conviction and sentence for being a felon-in-possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). We
affirm.
I.
Debra Sellers (who dated D'Amario once or twice)
obtained an abuse prevention order against D'Amario from a
Massachusetts state court, on the ground that D'Amario was
harassing her. Thereafter, she received two printed
anonymous cards which she believed were sent by D'Amario.
In February 1999, Attleboro, Massachusetts police obtained
a search warrant for evidence that D'Amario had produced the
cards, i.e., "any typewriter, computer, word processor,
printer, typewriter ribbons, computer ribbons, computer
discs, computer software, hard drive computer components or
any other component or part of any instrument or machine
capable of producing a printed document."
D'Amario lived in Smithfield, Rhode Island and the
search was conducted by both Attleboro, Massachusetts and
Smithfield, Rhode Island police. The police seized a
typewriter and ribbons and, thereafter, while searching in
a dresser drawer, found a firearm and ammunition. One of
the officers knew at that time that D'Amario had previous
convictions in Rhode Island and Massachusetts and that at
least one of those convictions resulted in a sentence longer
than one year. The officers seized the firearm and
ammunition.
At the time of this search, D'Amario was on
probation from both the Massachusetts and Rhode Island
convictions and he was arrested a few days after the search
and held on Rhode Island state charges of violating his
probation. Eventually, he was charged in federal court with
being a felon-in-possession, in violation of 18 U.S.C. §
922(g)(1). D'Amario and the government stipulated that (1)
he had a prior felony conviction; (2) the weapon met the
definition of a firearm; and (3) the gun had traveled in
interstate commerce prior to his possession. Nonetheless,
D'Amario went to trial before a jury. In essence, he
apparently hoped for jury nullification. Although the
element of "knowing possession" of the firearm meant that
the government only had to prove that D'Amario knew that the
weapon was a firearm and voluntarily and intentionally
possessed it -- something that D'Amario did not contest --
D'Amario sought to show that the firearm was legally
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purchased in 1987, i.e., before his felony conviction, and
that he thereafter simply failed to dispose of it.
D'Amario was convicted and sentenced to 18 months.
The sentence reflected a downward departure of one level,
giving consideration to the fact that D'Amario's possession
of a weapon, unloaded, in a drawer for twelve years appeared
to have been passive, i.e., there was no indication that
D'Amario had ever used or brandished the gun.
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II.
We discuss D'Amario's appellate issues in the same
order in which he has presented them.
1. Entitlement to judgment of acquittal
Whether or not, for purposes of precluding the
possession of firearms, Rhode Island law makes a distinction
between felons convicted of violent versus nonviolent
felonies is irrelevant. Section 922(g)(1), which prohibits
previously convicted felons from possessing a firearm, makes
no such distinction between defendants convicted of violent
versus nonviolent felonies. See United States v.
Chamberlain, 159 F.3d 656, 660 (1st Cir. 1998); United
States v. Tavares, 21 F.3d 1, 4 (1st Cir. 1994) (en banc).
The government did not need to prove that D'Amario knowingly
violated the law; it only needed to prove that D'Amario
knowingly possessed the firearm, which D'Amario effectively
conceded in his testimony. See United States v. Smith, 940
F.2d 710, 713 (1st Cir. 1991). Moreover, we have previously
rejected a theory of defense in a § 922(g)(1) prosecution
based on a defendant's claim that he had not been advised
that he could not possess firearms under federal law and
believed that a state's issuance of a Firearms
Identification card, allowing the possession of a firearm
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under state law, gave him the right to possess firearms.
See United States v. Caron, 64 F.3d 713, 714-17 (1st Cir.
1995), cert. denied, 518 U.S. 1027 (1996).
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2. Request for a continuance
There was no abuse of discretion, much less "a
manifest abuse of discretion," in the district court's
denial of D'Amario's request for a continuance. See United
States v. Orlando-Figueroa, 229 F.3d 33, 39 (1st Cir. 2000)
(reciting standard). The request was tardily filed and no
issue regarding a continuance was even mentioned when
D'Amario had the opportunity to do so at a telephonic
conference held the week before trial.
3. The competency examination
D'Amario's complaints regarding the competency
examination appear baseless as well as moot. Moreover, this
court has already reviewed and rejected these complaints.
See In re D'Amario, No. 99-1724 (1st Cir. July 23, 1999).
4. Jury instructions
By failing to reassert his objection after the
instructions were given, D'Amario has waived consideration
of it. See United States v. Mendoza-Acevedo, 950 F.2d 1, 4
(1st Cir. 1991). And, there was no plain error in the
court's refusal to instruct the jury as requested. Contrary
to his contention, the Ninth Circuit, in fact, has rejected
the assertions proffered by D'Amario with respect to the
interstate transportation of firearms, both as to the
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requirement that the movement have "recently" occurred and
the subsumed assertion that the issue of time is a jury
question. See United States v. Casterline, 103 F.3d 76, 77
(9th Cir. 1996), cert. denied, 522 U.S. 835 (1997).
5. The motion to suppress
D'Amario reasserts his contentions that the
evidence of the gun should have been suppressed because the
search warrant lacked probable cause and the gun was outside
the scope of the warrant. We review, de novo, a district
court's determination that a given set of facts constituted
probable cause, but defer to the court's findings of fact,
unless clearly erroneous. See United States v. Charles, 213
F.3d 10, 18 (1st Cir.), cert. denied, 121 S. Ct. 272 (2000).
Upon our review, we find no error in the district court's
denial of D'Amario's motion to suppress. We need say little
beyond that said by the district court in its order of
November 3, 1999. The so-called "Catlow report" does not
contradict Sergeant Collins's statements of what he knew at
the time of the search and does not warrant overturning the
district court's refusal to reopen the suppression matter on
the basis of that report.
6. Sentencing
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A district court is not authorized to award credit
at sentencing; it is the Attorney General who computes the
amount of credit after a defendant begins his federal
sentence. See United States v. Wilson, 503 U.S. 329 (1992).
D'Amario's course of relief is to exhaust administrative
remedies with the Bureau of Prisons and, if dissatisfied, to
seek judicial review pursuant to 28 U.S.C. § 2241. See id.
at 335; Rogers v. United States, 180 F.3d 349, 357-58 (1st
Cir. 1999), cert. denied, 120 S. Ct. 958 (2000). Contrary
to D'Amario's assertion, United States v. Benefield, 942
F.2d 60 (1st Cir. 1991), is not a "virtually identical
situation," and, in any event, the Sixth Circuit opinion,
upon which we relied, was subsequently reversed in Wilson.
D'Amario's suggestion that his counsel was ineffective in
not getting his state sentence imposed prior to the federal
sentencing is no more than a passing reference, was not
presented below, and would require further factual
exposition. As such, it is not sufficiently developed for
consideration on this direct appeal. See United States v.
Martinez-Martinez, 69 F.3d 1215, 1225 (1st Cir. 1995), cert.
denied, 517 U.S. 1115 (1996).
D'Amario argues error by the district court in
denying his request for a two level downward adjustment for
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acceptance of responsibility. Contrary to D'Amario's
contention, however, the district court did not erroneously
believe that D'Amario was ineligible for such a reduction
because he elected to go to trial. Rather, it is evident
that the court did not find this to be one of the "'rare
situations' [in which] a defendant may elect to exercise his
right to trial and still be eligible for a reduction" for
acceptance of responsibility. United States v. Ellis, 168
F.3d 558, 564 (1st Cir. 1999) (quoting U.S.S.G. § 3E1.1,
application (n.2)). We review the district court's refusal
to award a downward adjustment for acceptance of
responsibility for clear error. See United States v.
Carrington, 96 F.3d 1, 9 (1st Cir. 1996), cert. denied, 520
U.S. 1150 (1997). D'Amario has not met that burden.
7. Allegedly "newly available" evidence
This claim, presented in cursory fashion, in any
event, is not properly before this court. See United States
v. Graciani, 61 F.3d 70, 77 (1st Cir. 1995).
III.
While this appeal has been pending, D'Amario has
filed several miscellaneous motions. In light of our
disposition of this appeal, we deny the motions for release
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pending appeal and for summary reversal. We also deny, as
moot, the motion to expedite this appeal.
The conviction and the sentence are affirmed.
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