United States v. D'Amario ( 2001 )


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  •       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]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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