United States v. Jones ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1764
UNITED STATES,
Appellee,
v.
ANTHONY JONES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Ripple,* and Selya, Circuit Judges.
Stuart W. Tisdale, Jr. for appellant.
Renee M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty, II, United States Attorney, was on brief for
appellee.
December 5, 2012
*
Of the Seventh Circuit, sitting by designation.
RIPPLE, Circuit Judge. Anthony Jones was indicted on one
count of possessing five or more grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1). After his motion to suppress
evidence was denied, he entered a conditional plea of guilty. See
Fed. R. Crim. P. 11(a)(2). Mr. Jones was sentenced to 180 months’
imprisonment.1 He now timely appeals the denial of his suppression
motion as well as the use of certain prior convictions in
calculating his sentence guideline range.2
I
BACKGROUND
On May 29, 2008, Agent Ernest MacVane, assigned to a Drug
Enforcement Administration (“DEA”) task force, received an
anonymous call from an individual who claimed to have used cocaine
and to have purchased it recently at a house located at 31 Saugus
Street in Portland, Maine. In the course of the call, the
individual supplied the following details. A red and black Saab or
Audi located at that address was associated with drug sales. Five
individuals were at the address: Maria Strong and four
African-American males from Massachusetts. Two of the males were
armed with handguns. The four men used the house to store drugs
1
The district court’s jurisdiction was predicated on
18 U.S.C. § 3231.
2
Our jurisdiction is predicated on 28 U.S.C. § 1291. See
United States v. Dubose, 579 F.3d 117, 119 (1st Cir. 2009); United
States v. Jackson, 544 F.3d 351, 356 (1st Cir. 2008).
-2-
and money, and the caller had seen about one ounce of crack cocaine
while in the house. A silver car parked on an adjacent street
contained a large quantity of cocaine base.3
On the same day, Agent MacVane went to the address to
corroborate the information. The car in the driveway matched the
caller’s description and a silver Toyota with Massachusetts plates
was parked on a cross street within view of the back of the house.
By conducting a records search, Agent MacVane learned that the
silver Toyota belonged to Lemmie Nunes. Agent MacVane knew that,
two weeks before receiving the caller’s tip, agents had arrested
Kamaludin Odowa for distributing drugs out of a motel room which
had been rented by Nunes. Officers recovered cocaine and money
from Odowa, but Nunes had not been arrested.4 A records check
further confirmed that Maria Strong lived at 31 Saugus Street. Two
years earlier, Strong had been arrested in a case in which
Agent MacVane had seized four to five ounces of crack cocaine from
her companion. Strong herself never was charged in connection with
that incident.5
A drug-sniffing dog and its handler were dispatched to
the scene. The handler, posing as a resident walking his dog,
3
R.87 at 3-4.
4
R.87 at 4; R.93 at 210-11.
5
R.87 at 4; R.93 at 249-50.
-3-
walked past the Toyota two times but did not circle it. The dog
did not alert on the car.
While agents observed the location, an African-American
male left the house, went to the silver Toyota and drove the short
distance back to 31 Saugus Street where three other males, two
African-American and one Caucasian, got into the car and the
vehicle drove off. When the vehicle pulled into a gas station, it
was surrounded quickly by four law enforcement vehicles. Five
agents participated in the stop. All wore civilian clothes with
their badges displayed. Two agents, wearing vests that said
“police,” approached the Toyota with guns drawn. The agents
testified that they considered the operation to be “high risk”
because the caller had indicated that at least two of the
individuals were armed. Each agent was tasked with detaining one
of the Toyota’s occupants. Agent MacVane was assigned to detain
Mr. Jones who was sitting in the front passenger seat. He
approached Mr. Jones with his gun drawn, shouted “police” and
ordered Mr. Jones to put his hands up. When Mr. Jones did not
raise his hands, Agent MacVane opened the car door and repeated the
instructions. Mr. Jones did not comply and instead moved his right
hand behind his back and towards his waist.6 Fearing Mr. Jones had
a weapon, Agent MacVane kicked Mr. Jones in the chest and grabbed
his arm to pull him out of the vehicle. Because Mr. Jones was
6
R.87 at 6.
-4-
still not compliant, Agent MacVane called for help. He got
Mr. Jones out of the car and put him face down on the pavement.
Agents David Bruni and Paul Wolf came to assist. Agent MacVane
struck Mr. Jones’s shoulder at least twice in an attempt to get his
cooperation. With the help of the other agents, Mr. Jones
eventually was restrained by linking two sets of handcuffs. The
agents testified that they did not hear Mr. Jones complain of
breathing difficulties, but Mr. Jones testified that he repeatedly
yelled that he was unable to breathe. Only twenty to thirty
seconds elapsed from the time Mr. Jones saw Agent MacVane to when
Mr. Jones was handcuffed.
Once Mr. Jones was secured, Agent Bruni conducted a
visual search for weapons and noticed that Mr. Jones’s pants had
slid down around his buttocks and the corner of a plastic bag was
sticking out of the waistband of his underwear. Agent Bruni had
seen other suspects hide drugs in this manner, and, based on his
experience, he believed the plastic bag in Mr. Jones’s underwear
contained drugs. Agent Bruni pointed out the bag to Agent MacVane
and removed it. The bag, weighing 46.8 grams, contained thirty-six
smaller bags of cocaine base. An ambulance was called for
Mr. Jones because he was having difficulty breathing.7
Agent MacVane accompanied Mr. Jones to the hospital and testified
that, at one point, Mr. Jones’s pants slipped down again and
7
R.87 at 8.
-5-
Agent MacVane had to pull them up because Mr. Jones was still
handcuffed. No other drugs were found at the scene, and the
vehicle’s other occupants were released.
In contrast to the agents’ testimony, Mr. Jones testified
that his pants did not slip down during the incident and that he
felt someone pull at the top of his pants, reach into his
underwear, and pull out the package of crack cocaine from “really
down deep between [his] buttocks.”8 He and his girlfriend, Melissa
Roman, testified that Mr. Jones’s pants fit well and could not slip
down because he wore a belt.9 Mr. Jones also testified, however,
that he could retrieve the cocaine by reaching his own arm down his
pants without loosening his belt.10
II
DISCUSSION
A.
We turn first to Mr. Jones’s contention that the district
court erred in denying the motion to suppress. He presents several
arguments to support this contention. First, he maintains that the
agents did not have reasonable suspicion to stop the silver Toyota.
Second, he contends that, even if there were reasonable suspicion
8
R.94 at 148.
9
R.87 at 12-14.
10
R.87 at 15.
-6-
to conduct the stop, the seizure was a de facto arrest because the
agents’ conduct exceeded the scope necessary to conduct an
investigatory stop and therefore had to be based on probable cause,
not reasonable suspicion. Third, Mr. Jones asserts that the
district court’s factual finding, that agents saw a corner of the
plastic bag and did not reach into Mr. Jones’s pants, was clearly
erroneous. We shall address each of these contentions.
1.
In the district court and now before this court, the
Government justifies the initial stop of the vehicle on the ground
that, at the time the stop was made, the agents had an adequate
basis to conduct such an investigative stop. We therefore begin by
setting forth the established principles that govern investigative
stops.
The stop of an automobile and the detention of its
occupants constitutes a seizure under the Fourth Amendment. Whren
v. United States, 517 U.S. 806, 809-10 (1996); Delaware v. Prouse,
440 U.S. 648, 653 (1979). To satisfy the requirement of the Fourth
Amendment that all such seizures be “reasonable,” U.S. Const.
Amend. IV, police officers conducting an investigatory stop must
have “reasonable suspicion.” They “must be able to point to
specific and articulable facts which, taken together with rational
inferences from those facts,” justify an intrusion on a private
person. Terry v. Ohio, 392 U.S. 1, 21 (1968). Officers’ “hunches”
-7-
are insufficient for reasonable suspicion. Id. at 22. In
determining whether an officer had reasonable suspicion, we look to
the facts “available to the officer at the moment of the seizure or
the search.” Id. We must assess the “totality of the
circumstances.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(internal quotation marks omitted). See also United States v.
Monteiro, 447 F.3d 39, 43 (1st Cir. 2006). Although reasonable
suspicion requires a “lesser showing” than probable cause, we focus
on the same factors. Alabama v. White, 496 U.S. 325, 328-29
(1990). As the district court recognized, we summarized these
principles in United States v. Chhien, 266 F.3d 1, 6 (1st Cir.
2001):
Reasonable suspicion, as the term implies, requires
more than a naked hunch that a particular person
may be engaged in some illicit activity. By the
same token, however, reasonable suspicion does not
require either probable cause or evidence of a
direct connection linking the suspect to the
suspected crime. Reasonable suspicion, then, is an
intermediate standard--and one that defies precise
definition. Its existence must be determined case
by case, and that determination entails broad-based
consideration of all the attendant circumstances.
In mulling those circumstances, an inquiring court
must balance “the nature and quality of the
intrusion on personal security against the
importance of the governmental interests alleged to
justify the intrusion.” To keep this balance true,
the court must make a practical, commonsense
judgment based on the idiosyncracies of the case at
hand.
(citations omitted).
-8-
Assessing information provided by third parties has long
been a subject of litigation, and the basic principles governing
this particular inquiry also are well established. Information
provided to police by third parties may create reasonable suspicion
if the information contains sufficient “‘indicia of reliability.’”
White, 496 U.S. at 328. The past reliability of an informant is a
significant factor permitting reliance on information that would
not otherwise be sufficiently corroborated. See United States v.
Taylor, 985 F.2d 3, 5-6 (1st Cir. 1993) (noting that an informant’s
detailed, first-hand description of the area and a statement as to
the informant’s past reliability was sufficient to support a
warrant). Anonymous tips, such as the one at issue here, present
special problems and require particular caution on the part of both
law enforcement agents and reviewing courts. In Florida v. J.L.,
529 U.S. 266 (2000), the Supreme Court stated succinctly the reason
for this caution:
Unlike a tip from a known informant whose
reputation can be assessed and who can be held
responsible if her allegations turn out to be
fabricated, an anonymous tip alone seldom
demonstrates the informant's basis of
knowledge or veracity.
Id. at 270 (citations omitted) (internal quotation marks omitted).
Therefore, when, as here, the information comes from an anonymous
informant, law enforcement authorities must take steps to
-9-
corroborate the information.11 In this context, courts have long
recognized that a tip predicting future behavior, not known to the
general public, may be worthy of significant weight to the extent
that it demonstrates that the informant has some inside information
or familiarity with the defendant’s affairs. White, 496 U.S. at
332. Ascertaining by investigation that the person implicated by
the tip has a relevant criminal history is helpful, although not
sufficient in itself, to create reasonable suspicion. Monteiro,
447 F.3d at 47 (noting that corroboration may “come[] in part from
an individual’s gang affiliation and/or recent arrests for conduct
related to the activity referred to in a tip”).
“Corroboration of apparently innocent activity can
establish the reliability of the informant because the activity
might come to appear suspicious in light of the initial tip.”
United States v. Greenburg, 410 F.3d 63, 69 (1st Cir. 2005) (citing
Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). However,
because a determination of reasonable suspicion must be based on
the totality of the circumstances, both law enforcement and
reviewing courts must take into consideration the facts that
suggest the tip was reliable and those that indicate a lack of
11
Alabama v. White, 496 U.S. 325, 331–32 (1990) (justifying
a Terry stop with an anonymous tip that was corroborated by
specific details and predictive information); United States v.
Monteiro, 447 F.3d 39, 44-46 (1st Cir. 2006) (discussing the legal
requirements and need to corroborate information from anonymous
callers).
-10-
reliability. Monteiro, 447 F.3d at 46.12 The reliability of an
anonymous source may be undermined when police attempts to
corroborate instead disprove information provided by the anonymous
source.13
With these basic principles in mind, we turn to the case
before us today. As we already have noted, the tip in this case
was from an anonymous informant. Much of the information conveyed
in the tip was easily ascertainable by a third party with no
particular information about the concealed criminal activity of the
persons implicated by the tip. This information, standing alone,
cannot support a determination of reasonable suspicion. As the
Supreme Court noted in J.L., to support a determination of
reasonable suspicion, the tip must “be reliable in its assertion of
illegality, not just in its tendency to identify a determinate
person.” 529 U.S. at 272. Some of the information supplied by the
informant did provide information responsive to this requirement.
First, it provided information about the illegal activity that was
12
The court in Monteiro did note that the situation may be
different when there is an imminent threat to public safety, but in
that case, a week had passed since the alleged shooting, police had
discredited the information, and police did not have any reason to
suspect that the vehicle posed a current threat to the public.
447 F.3d at 49.
13
For instance, the anonymous source in Monteiro, 447 F.3d
at 43-44, told police investigating a shooting on Eastman Street
that a vehicle with a particular license plate had been involved in
a shooting on Shirley Street, but police attempts to investigate a
shooting on Shirley Street suggested that no such shooting had
occurred.
-11-
taking place at the house in question and further stated the basis
for that knowledge. Specifically, the informant reported that he
had purchased contraband drugs at the home. Second, the informant
stated a specific connection between the occupants of the house and
the silver Toyota parked in the area. The informant stated that
the vehicle was owned by an occupant of the house and was used to
store drugs. This information would not be available to the casual
third-party observer.
The agents correctly did not act immediately on this
information, but first set out to corroborate it. They met with
mixed success. They independently verified, through motor vehicle
records, the location of the home and that Maria Strong lived at
that address. They also verified that the silver Toyota was parked
at a location, in the words of the district court, “unusually far
from 31 Saugus Street, but not unusually so if it was being used by
drug traffickers who would want to keep the car from being
associated with 31 Saugus Street while keeping it visible from that
house.”14 On the other hand, a dog trained to alert in the presence
of drugs did not do so when walked by the silver Toyota during an
atypical canine search.15
14
R.87 at 4.
15
Agent MacVane’s original affidavit did not indicate that
the canine search was limited, R.93 at 253-54, but during the
suppression hearing he testified that the sniff in this case was
unusual because the handler was not in uniform and the dog did not
circle the car. R.93 at 214-15. We also note that, in any event,
-12-
The agents independently ascertained that the occupant of
the house, Maria Strong, had been connected to drug activity
(although never charged) two years earlier. They also ascertained
that the owner of the silver Toyota was Nunes, who rented a motel
room used in another drug trafficking case two weeks before
Agent MacVane received the informant’s tip. Both cocaine and money
had been discovered in the course of that arrest. Continued
surveillance permitted the agents to observe an African-American
male leave the house on Saugus Street, get into the silver Toyota
around the corner and drive around the block to the Saugus Street
address. This observation provided independent corroboration of
the connection of the silver Toyota to the house. Notably,
however, the later observation of three men entering the car
demonstrated that the informant’s report that all four men were
African-American was not entirely correct since one of them was
Caucasian.
In the end, by the time the agents stopped the silver
Toyota and its occupants, they had established that a person
connected to a drug transaction in the past had within her house
four individuals, one of whom had rented a room occupied by a
the failure of the dog to alert does not vitiate reasonable
suspicion. It was simply a factor for the district court to
consider. See United States v. Jodoin, 672 F.2d 232, 236 (1st Cir.
1982), abrogated on other grounds, Bloate v. United States,
130 S. Ct. 1345 (2010); see also United States v. Ramirez, 342 F.3d
1210, 1213 (10th Cir. 2003).
-13-
person recently arrested in a drug transaction. They also had
observed the silver Toyota parked in a manner that was compatible
with the drug storage reported by the informant. That use had not
been confirmed, however, during a walk-by examination by a
drug-sniffing dog. They also knew that the informer had been wrong
with respect to the race of one of the men.
We must now assess whether, at the moment that the silver
Toyota was stopped, all these circumstances would warrant a person
of “reasonable caution in the belief that the action taken was
appropriate.” Terry, 392 U.S. at 22 (internal quotation marks
omitted). Although the case is admittedly a close one, we believe
that the district court correctly determined that the agents acted
within the confines of existing law. As a threshold matter, we
point out that the district court correctly understood and
articulated the governing principles of law. Most importantly, the
court understood the importance of the agents obtaining sufficient
corroboration of the anonymous tip and specifically pointed out
that, unlike the tip in J.L., the information described here
included the basis of the informant’s information and permitted at
least a partial corroboration of the informant’s account. The
agents were able to verify that a connection existed between the
house at 31 Saugus Street and the silver Toyota, and that the house
and the car were occupied and owned by individuals earlier
implicated in the very illegal activity that the informant had
-14-
described, to his own potential detriment, as taking place in the
house. We believe that this information would permit a reasonable
drug enforcement agent to suspect, in light of his experience, that
criminal activity was underway and that further inquiry of those
suspected was required. Under these circumstances, the agents were
permitted to stop the silver Toyota.
2.
Having determined that there was reasonable suspicion to
stop the vehicle in which Mr. Jones was a passenger, we must now
examine whether the agents’ actions exceeded the scope of a
permissible Terry stop. Like the determination of whether
reasonable suspicion exists, assessment of whether the agents
exceeded the permissible scope of intrusion is a difficult,
fact-intensive inquiry. United States v. Young, 105 F.3d 1, 7 (1st
Cir. 1997) (“Parsing whether any given seizure constitutes an
arrest or a lesser seizure, however, proves a difficult task.”);
United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994) (“There
is no scientifically precise formula that enables courts to
distinguish between investigatory stops, which can be justified by
reasonable suspicion, and other detentions that the law deems
sufficiently coercive to require probable cause--detentions that
are sometimes called ‘de facto arrests.’”).
At the outset, we have held that a de facto arrest occurs
when “‘a reasonable man in the suspect’s position would have
-15-
understood his situation,’ in the circumstances then obtaining, to
be tantamount to being under arrest.” Zapata, 18 F.3d at 975.
However, in making this assessment, we also must keep in mind that
police conducting a Terry stop are entitled to take reasonable
measures to protect their own safety and taking such measures does
not transform a Terry stop into an arrest. See United States v.
Chaney, 647 F.3d 401, 409-10 (1st Cir. 2011) (noting circumstances
that may justify officer action); United States v. Walker, 924 F.2d
1, 4 (1st Cir. 1991) (stating that “[an officer’s] concerns for his
own safety [are] of paramount importance in assessing the
appropriateness of the action taken”). We must take an objective
look at the totality of the circumstances and assess “the
reasonableness of the detaining officer or officers’ actions in
response to developing conditions.” Chaney, 647 F.3d at 409.
Thus, measures such as the use of handcuffs,16 drawn weapons,17
placing suspects face down on the ground,18 the presence of multiple
16
United States v. Chaney, 647 F.3d 401, 409 (1st Cir. 2011)
(noting that while handcuffs and drawn weapons suggest de facto
arrest, neither factor alone is determinative).
17
Id.; United States v. Taylor, 162 F.3d 12, 21 (1st Cir.
1998) (holding that no de facto arrest occurred when at least one
officer had a drawn weapon).
18
Taylor, 162 F.3d at 21-22 (determining that no de facto
arrest occurred even though occupants of the car claimed that they
“were placed face-down on the ground and pat-frisked”).
-16-
officers,19 and police cruisers positioned to block exits,20 do not
necessarily turn a stop into a de facto arrest.
The situation that confronted us in United States v.
Taylor, 162 F.3d 12 (1st Cir. 1998), is fairly analogous to the
stop involving Mr. Jones and, consequently, it provides us with
significant guidance in resolving this case. In Taylor, police
learned from an informant that two individuals, armed with
handguns, were delivering drugs in a brown Acura. Id. at 15.
Based on the tip, three police cruisers converged on the suspects’
car while it was stopped at a red light. One officer drew his
weapon and ordered the driver to turn off the engine while other
officers removed the vehicle’s three occupants, placing them
face-down on the ground and frisking them for weapons. Ten to
twelve officers and an unknown number of police vehicles eventually
reported to the scene. Id. at 16, 21. Noting that the police
reasonably believed the suspects were potentially very dangerous,
we held that no de facto arrest had occurred. The officers “were
entitled ‘to take swift measures to discover the true facts and
19
Id. (holding that no de facto arrest occurred when there
were ten to twelve officers on the scene and the egress was blocked
by police cruisers); United States v. Quinn, 815 F.2d 153, 156–58
(1st Cir. 1987) (holding that no de facto arrest occurred where
police cruisers blocked suspect’s egress, five officers were
present, and interrogation took twenty to twenty-five minutes).
20
See supra note 19.
-17-
neutralize the threat of harm if it materialized.’” Id. at 21
(quoting Terry, 392 U.S. at 30).
Here, as in Taylor, it was reasonable for the DEA agents
to believe that the stop was a “high risk” operation involving
armed drug traffickers. As we have noted earlier, our cases make
clear that officer safety is paramount and, when reasonably
necessary based on information available to law enforcement, police
officers may use multiple vehicles, multiple officers, handcuffs
and drawn weapons without turning a Terry stop into a de facto
arrest.21 The district court correctly determined that the stop was
not a de facto arrest.
3.
We next turn to the district court’s finding that the
agents saw the drugs in plain view. On a motion to suppress,
“[t]he district court’s credibility findings should be accorded
deference and overturned only if [we have] a definite and firm
conviction that a mistake has been committed.” United States v.
Marshall, 348 F.3d 281, 284 (1st Cir. 2003).
Here, the district court found that the testimony of
Agents MacVane and Bruni was more credible than the testimony of
Mr. Jones and his girlfriend, Ms. Roman. The agents testified that
Mr. Jones’s pants had slid down below his buttocks and a portion of
a knotted plastic bag could be seen sticking out of his underwear.
21
See supra notes 16-19.
-18-
In contrast, Mr. Jones testified that he felt an agent reach down
his pants and pull the bag of cocaine from between his buttocks.
In deciding that the agents were more credible, the district court
doubted the testimony of Mr. Jones and Roman that Mr. Jones’s pants
fit firmly around his waist because Mr. Jones testified that he
retrieved the cocaine by reaching his own arm into his pants
without loosening his belt.22
Mr. Jones argues that the district court’s finding was
clearly erroneous because Agent Wolf, the supervising agent who
also assisted in securing Mr. Jones, testified that he did not see
the bag, and thus the bag must not have been visible to the other
two agents. This testimony does not necessarily contradict the
other agents’ testimony because Agent Wolf left as soon as
Mr. Jones was secure and Agent Bruni spotted the bag only after
conducting a visual search for weapons.
22
R.87 at 12-14, 25-26. The district court additionally
noted some conflict between what Mr. Jones told Officer Duff on
May 30, 2008, and Mr. Jones’s and Roman’s testimony at the
suppression hearing on November 13, 2008, including whether
Mr. Jones and Roman were still together and where Mr. Jones was
during the three days prior to May 29. Roman testified that she
and Mr. Jones were together at the time and that he was with her
during the three nights before May 29. She later testified that he
was not with her on May 28. Mr. Jones initially told Officer Duff
that he was staying at 31 Saugus Street because he and Roman
recently had separated. R.87 at 12, 14-15.
-19-
4.
In summary, we hold that the police had reasonable
suspicion to stop the vehicle in which Mr. Jones was riding. We
further hold that the manner in which the agents conducted the stop
was reasonable in light of their legitimate safety concerns and,
therefore, the stop did not escalate into a de facto arrest. The
district court’s finding that the drugs on Mr. Jones’s person were
in plain sight is not clearly erroneous. The motion to suppress
the evidence was correctly denied.
B.
Mr. Jones also challenges three decisions related to his
sentence. First, Mr. Jones asserts that the district court erred
in determining that his 1997 conviction for assault and battery of
a police officer (“ABPO”) under Massachusetts General Laws chapter
265, § 13D was a “crime of violence” for purposes of a career
offender determination. Next, Mr. Jones maintains that his 1997
felony drug conviction is too old to be counted as a career
offender predicate. Finally, Mr. Jones argues that his sentence
should not have been enhanced under 21 U.S.C. § 841(b)(1)(B)(iii)
because the existence of the 1997 drug conviction was not proven
“beyond a reasonable doubt.” We address each of these arguments in
turn.
-20-
1.
Mr. Jones first argues that his conviction for ABPO
should not have been used in determining his career offender status
because it is not a “crime of violence.” U.S.S.G. § 4B1.1.
“Whether a prior conviction qualifies as a predicate offense under
U.S.S.G. § 4B1.1 is a question of law that we review de novo.”
United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).
Mr. Jones asserts that his conviction for ABPO cannot be
counted because the statute of conviction is a general prohibition
on assault and battery of any public employee. As a general
prohibition, the statute includes offenses which are no more than
offensive touching in addition to those which involve a “serious
potential risk of physical injury to another” as required by
U.S.S.G. § 4B1.2(a). In the alternative, Mr. Jones argues that the
charging document was deficient because, although it alleges that
Mr. Jones “did assault and beat Ptl. K. Lavita, a police officer,”
it does not allege that Mr. Jones knew that Officer Lavita was a
police officer.
We have rejected both arguments in previous opinions. In
United States v. Sumrall, 690 F.3d 42, 43 (1st Cir. 2012), we
emphasized that it is settled law that “all of the branches of the
statute,” including recklessness, qualify as a crime of violence
under U.S.S.G. § 4B1.2(a). We relied upon United States v. Dancy,
which noted that the additional elements required for
-21-
Massachusetts’ ABPO statute “ensure that the conduct criminalized
by the ABPO statute is ‘purposeful.’” 640 F.3d 455, 468 (1st Cir.
2011) (citing Mass. Gen. Laws ch. 277, § 79).
As to the knowledge requirement, although the indictment
does not allege that Mr. Jones knew that the victim was a police
officer, we previously have stated that, in Massachusetts,
conviction for APBO does require knowledge of the victim’s status
as a police officer. See Sumrall, 690 F.3d at 44; Dancy, 640 F.3d
at 468 n.13 (citing Commonwealth v. Francis, 511 N.E.2d 38, 41–42
(Mass. App. Ct. 1987); Commonwealth v. Rosario, 430 N.E.2d 866, 866
(Mass. App. Ct. 1982)); see also Commonwealth v. Deschaine, 932
N.E.2d 854, 860-61 (Mass. App. Ct. 2010), rev. denied, 936 N.E.2d
434 (Mass. 2010). Thus, the fact of conviction establishes both
that Mr. Jones assaulted a police officer and that he knew the
victim was a police officer. “Because knowledge is an element of
ABPO, any professed lack of knowledge is, therefore, at most, the
basis for a collateral claim that must be raised in a state, not a
federal, court.” Sumrall, 690 F.3d at 44. The district court
correctly included Mr. Jones’s conviction of ABPO in determining
his status as a career offender.
2.
Mr. Jones next submits that his 1997 state drug
conviction is too old to be considered in determining his status as
a career offender. The applicable time period is a legal
-22-
determination of the Guidelines’ meaning and scope that we review
de novo. See United States v. Bryant, 571 F.3d 147, 153 (1st Cir.
2009).
Mr. Jones was convicted and sentenced for a felony drug
offense on December 17, 1997, approximately ten years and five
months before the “commencement of the instant offense.” U.S.S.G.
§ 4A1.2(e). Initially, all but three months of the sentence were
suspended, but Mr. Jones violated probation and, in April 1998, he
was ordered to serve the remaining fifteen months. Mr. Jones
argues that, because he initially only served three months of his
eighteen-month sentence, the underlying conviction cannot be
counted because it was more than ten years before the commencement
of the current offense. He argues that § 4A1.2(k)(1) (requiring
the sentencing court to combine the original sentence to any
sentence imposed after a probation violation) applies only to
computing the criminal history points and not for determining
whether a conviction should be included in a career offender
calculation. We cannot accept this argument.
Under U.S.S.G. § 4A1.2(e), a conviction that occurred
more than ten years before the instant offense is not counted if
the resulting sentence was thirteen months or less. If the
sentence was over thirteen months, the conviction is counted if it
was imposed or resulted in the defendant’s being incarcerated
within fifteen years of the instant offense. Id. Under
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§ 4A1.2(k)(1), if the defendant violated probation and received an
additional sentence, the length of the sentence is determined by
“add[ing] the original term of imprisonment to any term of
imprisonment imposed” as a result of the probation violation. “The
resulting total is used to compute the criminal history points,”
U.S.S.G. § 4A1.2(k)(1), but, like other definitions in § 4A1.2, it
is also used in making career offender determinations. See
U.S.S.G. § 4B1.2 cmt. 3 (“The provisions of § 4A1.2 (Definitions
and Instructions for Computing Criminal History) are applicable to
the counting of [career offender] convictions under § 4B1.1.”);
United States v. Van Anh, 523 F.3d 43, 61 (1st Cir. 2008) (“[T]he
career offender guidelines treat sentences imposed pursuant to a
revocation of parole as part of the original sentence.” (citing
U.S.S.G. § 4A1.2(k)(1))).
Applying these rules to Mr. Jones’s case, we determine
the appropriate application period by combining the portion of
Mr. Jones’s sentence that was not suspended (three months) with the
sentence that was imposed after he violated probation (fifteen
months) for a total of eighteen months. Because the total sentence
for the 1997 drug conviction was over thirteen months, the
fifteen-year application period applies and the district court
properly considered the conviction in determining Mr. Jones’s
career offender status.
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3.
Mr. Jones’s final argument is that his sentence should
not have been enhanced under 21 U.S.C. § 841(b)(1)(B)(iii) because
the evidence was insufficient to prove the existence of the 1997
felony drug conviction beyond a reasonable doubt, as required by
§ 851(c).
A defendant convicted of possessing twenty-eight or more
grams of a substance containing cocaine base under 21 U.S.C.
§ 841(a)(1) is subject to a statutory minimum sentence of ten years
if he has a prior felony drug conviction.23 See 21 U.S.C.
§ 841(b)(1)(B). The Government is required to file an information
giving notice of the prior convictions to be relied on, and if the
defendant denies the prior conviction, the sentencing court must
hold a hearing. Id. § 851(a)-(c). During the hearing, the
Government has the burden of proving any factual disputes related
23
Mr. Jones committed the offense in 2008. The district
court ruled on the issue of enhancement under § 841(b)(1)(B) in
November 2009, prior to enactment of the Fair Sentencing Act of
2010, which increased the amount of cocaine needed to trigger the
ten-year minimum for prior offenders from five grams to
twenty-eight grams. The parties apparently did not revisit the
issue when Mr. Jones was sentenced in June 2011; however, the
change applies to defendants whose crimes preceded the effective
date of the Act. See Dorsey v. United States, 132 S. Ct. 2321,
2335 (2012). Although the indictment alleged only that Mr. Jones
possessed “five grams or more,” he agreed in his sentencing
memorandum and briefs that the drug quantity is 46.8 grams of
cocaine, thus he still qualifies for the enhancement.
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to the prior conviction “beyond a reasonable doubt.” 21 U.S.C.
§ 851(c).24
Here, the Government timely filed an information listing
the 1997 felony drug conviction. During a pre-sentencing hearing,
the Government presented certified records from Massachusetts state
court, which included an indictment and computer docket sheet
showing Mr. Jones’s guilty plea, sentence and revocation of
probation. There were two sets of certified records, presumably
because the Government sent two separate requests. Each set of
records was in a blue folder with Mr. Jones’s name and the case
number on the outside, but one folder listed the date as December
1997 with Associate Justice James D. McDaniel presiding, while the
other folder had an April 1998 date with Regional Administrative
Justice Elizabeth B. Donovan presiding. Mr. Jones agreed that the
documents were a true copy of Massachusetts court records, he
agreed that he was the person listed in the court documents as
being convicted in 1997, and he presented no evidence contradicting
the records. Mr. Jones initially stated that he did not deny the
fact of the conviction, but after conferring with counsel, stated
24
The statute does not require proof beyond a reasonable
doubt unless there is a factual dispute, and it is not at all
certain that a factual dispute actually exists here. During a
colloquy with the court, Mr. Jones agreed that he had been
convicted in 1997, but, after a discussion with counsel he stated
that he denied the conviction “on a legal basis,” not on a factual
basis. R.209 at 5-6.
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that he denied his conviction “on a legal basis.”25 Mr. Jones’s
counsel argued that, although the records were true copies, the
Government’s evidence was insufficient because there were few
records from the court, the folders contained different dates, and
there was no certification that the records were correct. Defense
counsel did not dispute that they were true copies, but suggested
that there could have been a mistake in the court’s records or that
the records could have been affected by a computer virus.26
The district court held that the discrepancy did not
undermine the accuracy of the records because the blue cover
folders were not part of the certified documents and it was
apparent that in one case the person preparing the folder used the
date of Mr. Jones’s original guilty plea while the person preparing
the folder to respond to the second request used the date on which
Mr. Jones was resentenced after he violated probation.27
Mr. Jones now argues that the records were insufficient
to prove the conviction beyond a reasonable doubt because: (1) the
documents were not certified by one having personal knowledge of
the conviction; (2) the certification does not individually list
every document in the file; and (3) there are discrepancies in the
documents. Appellant’s Br. 55-57. These arguments fail.
25
R.209 at 5-6.
26
R.209 at 30, 32-34.
27
R.153 at 5-6.
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A prior conviction can be proved through a variety of
documents, including “certified convictions or other comparable
judicial records that detail the fact of conviction,” Bryant, 571
F.3d at 155, or even a printout of an electronic docket, United
States v. McKenzie, 539 F.3d 15, 19 (1st Cir. 2008). Although most
cases addressing this issue involve sentencing where the standard
of proof is a preponderance of the evidence, such records also can
be used to prove the existence of a conviction beyond a reasonable
doubt, as required by the statute at issue here. Courts regularly
rely on other courts’ records, and we know of no case requiring the
record to be certified by one with personal knowledge of the actual
proceedings. Such a requirement would require federal courts to
subpoena the prosecutors, defense counsel, judges or court clerks
that were actually present in the prior proceeding–-an undue and
unnecessary burden.
Nor do the cases require that the certification
individually list every document in the file. The cases cited by
Mr. Jones do not suggest otherwise. Bryant, 571 F.3d at 153,
involved a situation where the Government failed to provide any
judicial record showing the fact of conviction, and United States
v. Kellam, 568 F.3d 125, 144-45 (4th Cir. 2009), involved court
records that did not clearly identify the defendant. Neither
situation is present here.
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Mr. Jones’s third challenge to the certified records has
more potential, but it also fails. Discrepancies in certified
documents could raise doubts as to the defendant’s identity, see
id. (noting discrepancies and missing information in the conviction
records, such as different name spellings and redacted personal
information), and conceivably, under certain circumstances, could
raise doubts as to the type of crime in the prior conviction.
Here, however, the district court was correct that the
“discrepancy” in the cover folders did not create a reasonable
doubt as to the fact of Mr. Jones’s conviction. The cover folder
is not part of the certified record and, even if it were, the
different dates on the cover folders correspond to the dates of
Mr. Jones’s initial conviction and resentencing.
Mr. Jones argues for the first time on appeal that the
records cannot be believed because the indictment charges a
violation of chapter 94C § 32A(c) while the docket reflects a
violation of chapter 94C § 32A(a). Failure to raise an argument to
the district court may constitute waiver, precluding our review; it
also may result in forfeiture, where review is only for plain
error. See United States v. Morgan, 384 F.3d 1, 7-8 (1st Cir.
2004). In the latter situation, Mr. Jones bears the burden of
proving “(1) that an error occurred (2) which was clear or obvious
and which not only (3) affected the defendant’s substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
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reputation of judicial proceedings.” United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). See also United States v. Ahrendt,
560 F.3d 69, 76 (1st Cir. 2009). Mr. Jones has not addressed these
requirements, but even if he had, we would not conclude that the
district court committed plain error. The “discrepancy” does not
necessarily make the documents unreliable, cf. United States v.
Sanders, 470 F.3d 616, 623-24 (6th Cir. 2006) (holding that
discrepancies in court documents, listing the charge as robbery,
aggravated robbery, and burglary, did not make the documents
unreliable), nor does it cast doubt on whether Mr. Jones has a
prior felony drug conviction. Section 32A(a) prohibits
“manufactur[ing], distribut[ing], dispens[ing], or possess[ing]
with intent to manufacture, distribute or dispense a controlled
substance in Class B of section thirty-one.” Mass. Gen. Laws ch.
94C § 32A(a). Section 32A(c) prohibits identical conduct related
to phencyclidine and a subgroup of controlled substances listed in
the same “Class B of section thirty-one.” Id. § 32A(c). Thus,
depending on the substance involved, Mr. Jones could have been
charged under either or both statutes, and a conviction under
either statute would qualify him for an enhancement under 21 U.S.C.
§ 841(b)(1)(B)(iii). Cf. Sanders, 470 F.3d at 624 (“[R]egardless
of whether Sanders was convicted of ‘robbery’ or ‘burglary’ in
80CR421, the conviction would have counted as a predicate violent
felony under the ACCA.”).
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Thus, the district court properly considered the 1997
felony drug conviction in enhancing Mr. Jones’s sentence under
21 U.S.C. § 841(a)(1)(B)(iii).
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
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