United States v. Francois , 715 F.3d 21 ( 2013 )


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  •              United States Court of Appeals
    For the First Circuit
    No. 11-2195
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ROLDY FRANCOIS,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. William E. Smith, U.S. District Judge]
    Before
    Howard, Ripple,* and Lipez,
    Circuit Judges.
    Michelle Menken, with whom Kerry Haberlin was on brief, for
    appellant.
    Donald C. Lockhart, Assistant United States Attorney, with
    whom Peter F. Neronha, United States Attorney, was on brief for
    appellee.
    April 22, 2013
    *
    Of the Seventh Circuit, sitting by designation.
    LIPEZ, Circuit Judge.       Following a three-day trial, a
    jury convicted defendant-appellant Roldy Francois ("Francois") on
    four counts of possessing firearms as a convicted felon, one count
    of possessing a firearm with an obliterated serial number, and
    twelve     counts stemming from his use of a stolen identity to
    purchase those firearms.       Following his conviction, the district
    court sentenced Francois to a term of 164 months.                 Francois
    appeals,    asserting   that    the    district   court   (1)   abused   its
    discretion when it denied his motion for a third court-appointed
    attorney; (2) failed to adequately warn him about the consequences
    of proceeding pro se; (3) erred in instructing the jury on the use
    of flight evidence; (4) abused its discretion in failing to conduct
    an evidentiary hearing on his motion to suppress. Francois also
    claims that his sentences on counts 10-13 exceed the statutory
    maximum.
    For the reasons explained below, we affirm Francois's
    conviction.    The government agrees, correctly, that the sentences
    on counts 10-13 do exceed the statutory maximum.          Hence, we remand
    for resentencing.
    I.   Background
    In reviewing Francois's conviction, we consider the facts
    established at trial in the light most favorable to the jury's
    verdict. United States v. Gómez-Rosario, 
    418 F.3d 90
    , 93 (1st Cir.
    2005).
    -2-
    A. Facts
    On March 27, 2009, a young government employee named
    Efrain    Baez    reported      that   a   briefcase     containing    his   social
    security card and birth certificate had been stolen. For more than
    a year, Baez knew nothing about the fate of his stolen documents.
    Unbeknownst to Baez, less than a month after his documents were
    stolen, his identity would be appropriated by Roldy Francois, a
    convicted felon living in Rhode Island.
    On April 23, 2009, the state of Florida issued Francois
    a   driver's     license   in    Baez's     name   but   bearing   a   picture   of
    Francois.      Francois proceeded to use Baez's identity on at least
    four occasions to purchase guns from Dave's Guns, a firearms dealer
    in Rhode Island.      When purchasing each of these firearms, Francois
    identified himself as "Efrain Baez" on ATF Form 4473 and certified
    that he had never been convicted of a felony.1                  Evidence in the
    record indicates that Francois also identified himself as Efrain
    Baez when he was cited for speeding, that he used Baez's identity
    1
    ATF Form 4473, or a "Firearms Transfer Record," is a form
    filled out in the course of an over-the-counter purchase of a
    firearm. The form requires the purchaser to provide identity
    information and allows the dealer to initiate a National Instant
    Criminal Background Check System search. The Gun Control Act of
    1968, 18 U.S.C. §§ 921-930, requires gun dealers to keep records of
    the information collected by means of ATF Form 4473 for 20 years
    and make them available for inspection to ATF agents upon request.
    See United States v. Lewis, 
    517 F.3d 20
    , 22 n.1 (1st Cir. 2008);
    Borchart Rifle Corp. v. Cook, 
    684 F.3d 1037
    , 1039 (10th Cir. 2012).
    -3-
    at a firing range, and that he assumed Baez's identity in some
    social situations.
    Francois continued to use Baez's identity with impunity
    until early 2010, when an ill-fated attempt to dupe the police put
    an end to his charade.      In February 2010, two of the guns Francois
    had illegally purchased at Dave's Guns were stolen from his car.
    On February 16, 2010, Francois went to the Providence Police
    Department accompanied by his girlfriend and his private attorney
    to report the theft.        When he arrived at the station, Francois
    identified himself as "Efrain Baez."
    Unfortunately for Francois, the detective assigned to
    take   his   report   had   encountered     Francois   in   the   course   of
    Francois's previous criminal activities.         Detective Maurice Green
    ("Detective Green") testified at trial that he recognized Francois
    "as soon as he walked in the door," but could not immediately place
    him.   Green also thought it was "odd" that someone would bring an
    attorney with him to the station to report a crime, and his
    suspicions were further aroused because "there was something very
    wrong with [Francois's] entire story."          Nevertheless, Green took
    Francois's report, and Francois left the station without incident.
    Convinced   that   he   had   encountered   Francois   before,
    Detective Green reviewed his old case files and discovered that the
    man who had identified himself as Efrain Baez was, in fact, Roldy
    Francois.      With this information, Detective Green immediately
    -4-
    contacted Immigration and Customs Enforcement ("ICE") and the
    Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF").
    Law enforcement agents initially attempted to apprehend
    Francois at 148 Hudson Street in Providence, the address Francois
    had given Detective Green during their February 16 interview. Upon
    arrival    at   that   address,      however,     the   police    were     told   by
    Francois's girlfriend that he had moved and left no forwarding
    address. After this initial setback, law enforcement officers were
    unable to locate Francois for several weeks until they received a
    tip that Francois was residing at 44 Taylor Street in Providence.
    Early in the morning of March 16, 2010, a team of fully
    armed and uniformed Providence police officers, ATF agents, and
    United     States   Marshals       approached     the   three-story      apartment
    building at 44 Taylor Street. The Marshals knocked on the exterior
    door, identified themselves as law enforcement officers, and told
    the residents who answered that they were there to arrest Francois.
    When Deputy Officer Brian McDonald ("Officer McDonald") showed the
    residents a photograph of Francois, one resident pointed his finger
    toward the ceiling and mouthed the word "up."
    Taking    this   to    mean   Francois     was   upstairs,    Officer
    McDonald proceeded to the third floor, where he observed an opening
    in   the    ceiling,    which      revealed   a   small,      unfinished    attic.
    Suspecting that Francois was hiding in the attic, Officer McDonald
    identified himself as a U.S. Marshal and announced that he had a
    -5-
    warrant for the arrest of Roldy Francois, also known as Efrain
    Baez.   In response, Francois moved toward the opening, allowing
    Officer McDonald to confirm visually that the man in the attic was
    indeed Francois. Officer McDonald observed Francois lying prone in
    the attic clutching a dark, semi-automatic handgun to his chest.
    At that point, Francois announced "that he was not going to jail,
    that he was in possession of a gun and no attempts should be made
    to remove him from the attic."
    Officer      McDonald     quickly       alerted       his   fellow   law
    enforcement agents that Francios was armed, and called for a back-
    up Special Weapons and Tactics ("SWAT") team.                    A tense, six-hour
    stand-off between Francois and law enforcement ensued.                     Several
    times during the stand-off, Francois threatened to shoot either one
    of the officers or himself.              Finally, late in the afternoon,
    Francois surrendered peacefully and was taken into custody.
    B.   Pre-Trial Proceedings
    A    federal     grand    jury      returned      a     seventeen-count
    indictment, charging Francois with four counts of being a felon in
    possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
    924(a)(2), one count of being in possession of a firearm with an
    obliterated serial number in violation of 18 U.S.C. §§ 922(k) and
    924(a)(1)(B),    four     counts    of    making   false     statements    in   the
    purchase of firearms in violation of 18 U.S.C. §§ 922(a)(6) and
    924(a)(2), four counts of possession of an identity document with
    -6-
    intent to defraud the United States in violation of 18 U.S.C. §§
    1028(a)(4) and (b)(1), and four counts of using an identification
    document with intent to defraud the United States in violation of
    18 U.S.C. §§ 1028A(a)(1).
    From the outset, Francois's relationships with his court
    appointed      attorneys    were    acrimonious.        The    court      initially
    appointed      Attorney    Mary    June    Ciresi   ("Ciresi")       to    represent
    Francois, but relations between the two deteriorated quickly.
    After   only    a   few    weeks   of     representation,     Francois      filed   a
    complaint against Ciresi with the disciplinary committee of the
    Rhode Island bar, and Ciresi moved to withdraw.                After a hearing,
    the district court granted the motion to withdraw, and appointed
    Francois a second attorney, William Dimitri ("Dimitri").
    Equally unimpressed with Dimitri, Francois asked the
    court in August to appoint him yet a third attorney.                         At the
    hearing on his motion for new appointed counsel, Francois stated
    that he and Dimitri were having "a problem of communication."
    Francois explained further that "[t]his is my first time in the
    federal system.       I'm not quite understanding properly the whole
    scenario of the sentencing guidelines." Francois also accused
    Dimitri of focusing exclusively on "the worst case scenario."
    The     district       court        disagreed     with        Francois's
    characterization of his relationship with Dimitri.                   In rejecting
    -7-
    Francois's    motion    for    a    third        appointed   counsel,    the   court
    reasoned:
    I don't see any substantive disagreement here. It just
    seems to me like he's giving you advice, it's been pretty
    good advice, and you haven't really liked the advice . .
    . I get the sense you think somebody else is going to
    give you different advice or file different things for
    you. I just don't think that's going to happen.
    Two months later, Francois again moved to terminate his
    relationship with Dimitri.            In support of this motion, Francois
    sent the court a letter addressed to Dimitri in which Francois
    stated:
    I [] feel like you are losing faith in this case perhaps
    because you can't win this case. . . . You are proceeding
    to handle my case as one that will end up as a guilty
    plea. . . . You refuse to put in motions for anything. .
    . . You refuse to accept my calls. . . . [Y]ou are taking
    me as another body to be delivered to the federal system.
    . . . [A]s of now you are fired.
    At the October hearing on this second motion, Dimitri
    told the court that Francois "want[ed] to kill the messenger"
    rather than    accept    the       truth    of    his   circumstances.     Dimitri
    asserted that he had met with Francois at least four times, taken
    many phone calls from Francois and his wife, and conducted research
    on the motions that Francois had asked him to file to confirm his
    initial suspicion that they had no merit. The district court again
    concluded that Francois was not entitled to a third court-appointed
    attorney, explaining that "Mr. Dimitri is one of the most able
    -8-
    criminal defense attorneys in the State of Rhode Island . . . You
    don't like what [Dimitri's] opinion indicates.       But that's not a
    compelling reason for me to grant your motion to change counsel."
    Nevertheless,      Francois   continued    to   voice       his
    dissatisfaction with Dimitri and continued his attempts to file pro
    se motions with the court.        Shortly before jury impanelment,
    Francois urged the court to allow him to proceed pro se.            After
    informing Francois that he had a right to represent himself, the
    court told Francois that:
    I have an obligation to tell you that I think that is a
    terrible idea, and I think you would be making a
    catastrophic mistake to -- by representing yourself in
    this trial. But I can't stop you from doing it. All I
    can do is tell you that I think it would be a very bad
    idea, and it would be very detrimental to your interests
    in receiving a fair trial in this case. . . . One way or
    the other we're going to impanel the jury here this
    afternoon.
    After reiterating that it would be a "very bad decision" for
    Francois to represent himself, the court acquiesced to Francois
    proceeding pro se and appointed Dimitri to act as standby counsel.
    The court advised Francois that he could inform the court at any
    moment of his wish to revoke his waiver, and Dimitri would step in
    as his attorney.   The court also cautioned Francois that he would
    receive no extensions of time, and that he would need to be
    prepared for trial 20 days hence.
    Francois   filed    several   pre-trial   motions   pro     se,
    including a motion to suppress the statements he made to Detective
    -9-
    Green during their interview at the Providence Police Station on
    February 16, 2010, in which Francois had identified himself falsely
    as Efrain Baez.       Francois argued that the statements he made to
    Detective Green should be suppressed on a theory that the interview
    was a custodial interrogation requiring a Miranda warning.                  After
    a hearing, the district court denied both Francois's motion to
    suppress     these    statements    and     his    further    request     for   an
    evidentiary hearing to determine whether or not he was objectively
    reasonable in feeling he was not free to leave the interview.
    C.   Trial
    At trial, Francois initially appeared pro se, delivering
    his own opening statement and making objections to the government's
    direct   examination     of   its   first    witness.        In   fact,   one   of
    Francois's    three    objections    to     this   witness's      testimony     was
    sustained.     After beginning his cross-examination of the witness,
    however, Francois decided that he could no longer continue to
    represent himself and accepted representation by Dimitri.                 Dimitri
    then stepped in and represented Francois for the rest of the
    proceeding.     At a later point in the trial, Francois asked the
    court if he could once again proceed pro se, but the court denied
    that motion.
    Before the jury began its deliberations, and over the
    objection of Francois, the district court provided the jury with
    the following instruction on how to use evidence of flight:
    -10-
    Now, intentional flight by a defendant after he is
    accused of a crime for which he is now on trial may be
    considered by you in light of all the other evidence in
    the case. The burden is upon the Government to prove
    intentional flight.      Intentional flight after the
    defendant is accused of a crime is not alone sufficient
    to conclude that he is guilty. Flight does not create a
    presumption of guilt. At most, it may provide the basis
    for an inference of consciousness of guilt. But flight
    may not always reflect feelings of guilt.      Moreover,
    feelings of guilt, which are present in many innocent
    people, do not necessarily reflect actual guilt. In your
    consideration of the evidence of flight, you should
    consider that there may be reasons for the Defendant's
    actions that are fully consistent with innocence. It is
    up to you as members of the jury to determine whether or
    not evidence of the intentional flight shows a
    consciousness of guilt and the weight or significance to
    be attached to any such evidence.
    The jury returned a verdict convicting Francois on all
    seventeen counts of the indictment.               Following his conviction, the
    district   court        sentenced   Francois      to   a   total    of     164   months
    imprisonment.
    II.     Francois's Sixth Amendment Claims
    Francois    advances   two     interrelated         Sixth     Amendment
    claims.    First, Francois argues that his Sixth Amendment right to
    effective assistance of counsel was violated when the court denied
    his motion for new appointed counsel and thereby forced Francois
    into    what     he   characterizes    as     a    "Hobson's       Choice"       between
    proceeding with ineffective counsel or proceeding pro se.                        Second,
    Francois argues that his decision to waive his right to counsel was
    not intelligent because the court failed to warn him about the
    -11-
    consequences of proceeding pro se as required by the Supreme
    Court's opinion in Faretta v. California, 
    422 U.S. 806
    (1975).
    A. Francois's Motion for New Appointed Counsel
    Though the right to counsel is fundamental, the right of
    an indigent criminal defendant to demand new appointed counsel is
    not unlimited.   "[I]n appropriate circumstances, a trial court may
    force a defendant to choose between proceeding to trial with an
    unwanted attorney and representing himself." United States v.
    Proctor, 
    166 F.3d 396
    , 402 (1st Cir. 1999).    In reviewing whether
    it was appropriate for the trial court to impose that choice, we
    rely on the three factors laid out in United States v. Allen, 
    789 F.2d 90
    , 92 (1st Cir. 1986): "(1) the timeliness of the motion; (2)
    the adequacy of the court's inquiry into the defendant's complaint;
    and (3) whether the conflict between the defendant and his counsel
    was so great that it resulted in a total lack of communication
    preventing an adequate defense." United States v. Hicks, 
    531 F.3d 49
    , 54-55 (1st Cir. 2008).   Our review is for abuse of discretion.
    United States v. Meyers, 
    294 F.3d 203
    , 207 (1st Cir. 2002).
    Because Francois's motions for new appointed counsel were
    all timely, we begin with the second prong of the Allen analysis --
    the adequacy of the inquiry into Francois's complaints about
    Dimitri.   The court conducted two pre-trial hearings on Francois's
    motions for new appointed counsel and issued a separate written
    -12-
    ruling following each hearing2.    In each hearing and in each order,
    the district court carefully examined Francois's complaints and
    concluded that the source of Francois's disappointment with Dimitri
    was not any lack of competence on Dimitri's part, but rather was
    Francois's refusal to accept Dimitri's accurate assessment of
    Francois's predicament. The district court's inquiry was more than
    adequate.    Indeed, the district court endured Francois's repeated
    complaints with commendable patience.
    Moving to the third prong of the Allen inquiry, we assess
    whether there is evidence on the record that the attorney-client
    relationship had so deteriorated that there existed a "total lack
    of communication preventing an adequate defense." 
    Allen, 789 F.2d at 92
    .   The pre-trial hearing transcripts leave little doubt that
    Francois did not like Dimitri's legal opinions or tactics.     There
    is no evidence, however, that the parties were not communicating
    with each other or that Dimitri was in any way neglecting his
    responsibilities.     In fact, at the January 2011 hearing, both
    parties made it clear that they had been communicating regularly.
    Dimitri told the court that he had already met with Francois in
    person "a minimum of nine to ten times" in addition to many phone
    conversations.    Francois estimated that they had met "four times"
    in person and described several phone conversations.         Indeed,
    2
    The court also conducted a hearing on Francois's motion to
    replace his first appointed counsel, Ciresi.
    -13-
    Francois's litany of complaints about Dimitri all belie the fact
    that the pair were in frequent communication during the pre-trial
    period.
    Francois simply did not like what he was hearing during
    those communications.        Specifically, he did not like hearing that
    the motions he wanted Dimitri to file were frivolous; that he would
    almost certainly be convicted and should accept a plea bargain; and
    that the    "worst    case   scenario"   sentence    he   could   receive    if
    convicted would be severe.       In other words, Francois's complaints
    reflect his disdain for Dimitri's advice, but none of Francois's
    complaints indicate that the two were so unable to communicate that
    Dimitri could not present an "adequate defense" on Francois's
    behalf.    See United States v. Pierce, 
    60 F.3d 886
    , 891 (1st Cir.
    1995)   (finding     no   irreversible   breakdown   where   defendant      and
    attorney had "some appreciation for the other's opinions and
    sensibilities"); United States v. Machor, 
    879 F.2d 945
    , 952 (1st
    Cir. 1989) (noting that in reviewing the third prong of the Allen
    analysis, "one should bear in mind that the right to counsel does
    not involve the right to a 'meaningful relationship' between an
    accused and his counsel") (quoting Morris v. Slappy, 
    461 U.S. 1
    , 14
    (1983)).
    For these reasons, we conclude that the district court
    did not abuse its discretion in denying Francois's motions to
    replace Dimitri with new appointed counsel.
    -14-
    B.   Francois's Waiver Of His Right to Counsel
    "Because of the disadvantages to a defendant that inure
    from   pro   se   representation,     a   defendant     must    'knowingly       and
    intelligently'      waive   his   right   to   counsel    before      he   may   be
    permitted to proceed pro se." United States v. Kneeland, 
    148 F.3d 6
    , 11 (1st Cir. 1998) (quoting Johnson v. Zerbst, 
    304 U.S. 458
    ,
    464-65 (1938)). As such, when a defendant seeks to proceed pro se,
    the trial judge must determine whether the defendant's waiver is
    "intelligent      and   competent."   
    Proctor, 166 F.3d at 402
    .       In
    discharging this responsibility, the trial judge must keep in mind
    the strong presumption against waiver and "'investigate as long and
    as thoroughly as the circumstances of the case before him demand.'"
    
    Id. (quoting Von Moltke
    v. Gillies, 
    332 U.S. 708
    , 723-24 (1948)).
    As part of the inquiry into whether the defendant's waiver is
    intelligent, the trial judge must warn the defendant "of the
    dangers and disadvantages of self-representation, so that the
    record will establish that '[the defendant] knows what he is doing
    and his choice is made with eyes open.'"Id. at 401 (quoting
    
    Faretta, 422 U.S. at 835
    ); see also Maynard v. Meachum, 
    545 F.2d 273
    , 279 (1st Cir. 1976) ("[T]he accused should have a general
    appreciation of the seriousness of the charge and of the penalties
    -15-
    he may be exposed to before deciding to take a chance on his own
    skill.").3
    Francois alleges that his decision to proceed pro se was
    not made "intelligently" because the court failed to adequately
    warn him of the dangers of proceeding pro se.                   Indeed, the
    government conceded at oral argument that "ideally" the court would
    have been more detailed in its warning.          Although the court did
    tell Francois that self-representation would be a "terrible idea"
    and a "catastrophic mistake," the court did not go beyond these
    dire generalizations to give a specific example of the consequences
    of self-representation that might enhance a layman's understanding
    of the significance of the decision to proceed without counsel.
    For example, the court did not explain that the defendant might
    have defenses that only a lawyer would appreciate.          Phrases like
    "catastrophic    mistake"   do   not   convey   in   concrete    terms   the
    sentencing range Francois would likely face if he were convicted,
    and the judge did not explain that he could not give advice or
    guidance during the trial.
    Francois's argument fails to appreciate, however, that
    even where the court's Faretta warning is less thorough than it
    might be, we may nevertheless affirm a district court's decision to
    allow a defendant to proceed pro se if "the record amply supports
    3
    This warning is sometimes called a "Faretta warning" or a
    "Faretta inquiry" after the Supreme Court's opinion in Faretta v.
    California, 
    422 U.S. 806
    (1975).
    -16-
    the lower court's conclusion that [the defendant] was fully aware
    of   the   disadvantages   he    would   face   as   a   pro    se   defendant."
    
    Kneeland, 148 F.3d at 12
    (considering defendant's background as a
    disbarred attorney and his conduct at trial in affirming that
    defendant's waiver of his right to counsel was intelligently made);
    see also United States v. LaBare, 
    191 F.3d 60
    , 68 (1st Cir. 1999)
    (considering defendant's experience as a defendant in previous
    criminal trials as a factor indicating his decision to proceed pro
    se was intelligently made); 
    Maynard, 545 F.2d at 277
    (determining
    that "the absence of explicit bench warnings or a colloquy on the
    record" does not compel a conclusion that defendant's waiver was
    invalid).
    We are satisfied on this record that Francois understood
    the trial process and was fully aware of the gravity of the charges
    facing him. Throughout the lengthy pre-trial proceedings, Francois
    was actively involved in preparing for his own defense.                   At the
    various hearings on his many pre-trial motions, the court engaged
    in several lengthy discussions with Francois. During each of these
    discussions,    Francois   was    lucid,   articulate,         and   engaged.
    Moreover, the arguments Francois made on his own behalf demonstrate
    that he had conducted extensive legal research of his own accord
    and was fully aware of the nature of the charges against him.
    Furthermore, while the court did not explicitly advise
    Francois of the consequences he would face if convicted, Francois
    -17-
    cannot claim that he was ignorant of the potential punishment he
    faced.   The record of the pre-trial proceedings clearly shows that
    Francois   received   advice      regarding    potential    sentences    from
    Dimitri.   Indeed, Francois's distress at Dimitri's assessment of
    the "worst case scenario" seems to have been a significant source
    of his dissatisfaction with Dimitri.               Moreover, the court did
    explain to Francois that the federal sentencing calculations were
    complicated and reiterated several times to Francois that it was
    critical that he give careful consideration to his attorney's
    assessment of the possible sentences he could face, rather than
    merely attacking his attorney for being the messenger of bad news.
    For these reasons, we conclude that Francois's waiver of
    his right to counsel was "intelligent and knowing" and the district
    court did not err in allowing him to proceed pro se.
    III.   Francois's Additional Challenges to His Conviction
    Francois advances two additional arguments: that the
    district   court   abused   its    discretion      in   giving   the   jury    a
    consciousness-of-flight instruction, and that the district court
    abused   its   discretion   in    denying     an   evidentiary   hearing      on
    Francois's pro se motion to suppress the statements he made to
    Detective Green in their initial encounter at the police station.
    We consider these arguments in turn.
    -18-
    A. Flight Instruction
    "Given an adequate factual predicate . . . evidence of a
    criminal defendant's flight is generally thought to be probative of
    his or her consciousness of guilt." United States v. Benedetti, 
    433 F.3d 111
    , 116 (1st Cir. 2005).       Where such an "adequate factual
    predicate exists," the district court may instruct the jury that
    evidence of flight may indicate a defendant's consciousness of
    guilt. See United States v. Camilo Montoya, 
    917 F.2d 680
    , 683 (1st
    Cir. 1990); United States v. Hyson, 
    721 F.2d 856
    , 864-65 (1st Cir.
    1983).    Our review of the trial court's decision to do so is
    deferential, and "[a] district court is afforded considerable
    leeway when determining whether evidence of a defendant's flight is
    accompanied by a sufficient factual predicate." 
    Bendetti, 433 F.3d at 116
    .
    Francois's claim that there was an inadequate factual
    predicate for the flight instruction borders on the frivolous. The
    government   presented   an   abundance   of   evidence   supporting   the
    inference that Francois fled to the attic because he was conscious
    of his own guilt.   On the day of his arrest, Francois knew that the
    police were looking for him because -- by his own admission -– he
    knew that Detective Green had recognized him when he used a stolen
    identity to report the theft of his illegally purchased guns.
    Within days of his interview with Detective Green, Francois had
    packed his belongings and left the apartment where he had been
    -19-
    living with no forwarding address.           When a fully uniformed and
    armed team of officers finally found Francois at 44 Park Street and
    announced their intent to arrest him, the Marshals discovered him
    lying prone with a semi-automatic handgun in a small, unfinished
    attic that was accessible only by standing on a chair and hoisting
    oneself through a hole in the ceiling. Such efforts at concealment
    and   evasion    are   tantamount   to     flight   for   the    purpose    of
    consciousness-of-guilt instructions. See United States v. Meadows,
    
    571 F.3d 131
    ,   146   (1st   Cir.   2009)   (upholding      admission   of
    defendant's flight attempt during a traffic stop because "the fact
    that [defendant]'s flight was neither successful nor lengthy is
    immaterial to the fact that he chose to flee"); see also United
    States v. Wright, 
    392 F.3d 1269
    , 1277 (11th Cir. 2004) ("[E]vidence
    of resisting arrest is probative of [the defendant]'s consciousness
    of guilt."); United States v. Pallais, 
    921 F.2d 684
    , 689-90 (7th
    Cir. 1990) (finding testimony indicating that when police sought to
    arrest defendant in his home he hid from them in a crawlspace was
    admissible to show consciousness of guilt).
    B.   The Court's Denial of an Evidentiary Hearing on Francois's
    Motion to Suppress
    Francois's argument that the court should have conducted
    an evidentiary hearing on his motion to suppress is similarly
    hopeless.    "A criminal defendant does not have a presumptive right
    to an evidentiary hearing on a motion to suppress." United States
    v. D'Andrea, 
    648 F.3d 1
    , 5 (1st Cir. 2011).          Rather, "[a] hearing
    -20-
    is required only if the movant makes a sufficient threshold showing
    that material facts are in doubt or dispute, and that such facts
    cannot reliably be resolved on a paper record.                Most importantly,
    the defendant must show that there are factual disputes which, if
    resolved in his favor, would entitle him to the requested relief."
    United   States    v.     Staula,   
    80 F.3d 596
    ,   603   (1st   Cir.   1996)
    (citations omitted).         Our review is for abuse of discretion.
    United States v. Farlow, 
    681 F.3d 15
    , 18 (1st Cir. 2012).
    Arguing that he should have been granted an evidentiary
    hearing on his motion to suppress the statements he made to
    Detective Green during their February 16 interview, Francois claims
    that there was a factual dispute over whether Detective Green
    separated Francois and his girlfriend at some point during their
    interview.4       Under    Francois's      theory,   resolving    this   factual
    dispute in his favor would compel the court to conclude that he was
    objectively reasonable in believing he was not free to end his
    interview with Detective Green and thus was in custody for Miranda
    purposes.     See Stansbury v. California, 
    511 U.S. 318
    , 323 (1994)
    (whether or not custody exists for Miranda purposes "depends on the
    objective circumstances of the interrogation, not on the subjective
    4
    In his brief, Francois claims that the government also
    disputes the fact that Detective Green spoke to his attorney in the
    hallway while Francois remained in the interview room. As the
    government assented to this fact during the suppression hearing and
    assents to it again on appeal, it is not actually in dispute. Even
    if it were it is not material on the facts of this case.
    -21-
    views harbored by either the interrogating officers or the person
    being questioned").
    Unfortunately   for   Francois,   his   argument   is   a   non-
    starter.    Even if this factual dispute were resolved in his favor,
    he would still have been objectively unreasonable in believing he
    was in custody.   Francois came to the police station on February 16
    of his own volition to report that he was the victim of a crime.
    He was not physically restrained nor told that he was not free to
    leave.   See United States v. Infante, 
    701 F.3d 386
    , 396 (1st Cir.
    2012) ("[W]hether an individual is in Miranda custody depends on
    whether there is a 'restraint on freedom of movement of the degree
    associated with a formal arrest.'" (quoting Maryland v. Shatzer,
    
    130 S. Ct. 1213
    , 1224 (2010))).     He was never questioned without
    his attorney present, and he was never yelled at, threatened, or
    badgered.    See United States v. Guerrier, 
    669 F.3d 1
    , 6 (1st Cir.
    2004) (noting that the fact that "[n]o one screamed at [defendant],
    badgered him for answers, or menaced him in any way" indicated that
    interaction was not a custodial interrogation).        At the conclusion
    of the interview, Francois casually left the police station a free
    man.   In sum, this scenario does not even come close to the type of
    custodial interrogation that we have found to require a Miranda
    warning.    Adding a private interview between Detective Green and
    Francois's girlfriend to the mix does not change that outcome.
    -22-
    The district court did not abuse its discretion in
    declining   to   grant   an   evidentiary   hearing   on   his   motion   to
    suppress.
    IV.   Sentencing
    Francois argues and the government concedes that his
    sentence on Counts 10-13 of the indictment was plainly erroneous
    because the court used facts not found by the jury to impose a
    sentence greater than the one-year statutory maximum provided in 18
    U.S.C.   § 1028(b)(6).     See Cunningham v. California, 
    549 U.S. 270
    ,
    274-75 (2007) ("[T]he Federal Constitution's jury-trial guarantee
    proscribes a sentencing scheme that allows a judge to impose a
    sentence above the statutory maximum based on a fact . . . not
    found by a jury or admitted by the defendant.").
    For his convictions on Counts 10-13, the court sentenced
    Francois to 140 months under 18 U.S.C. § 1028(b)(1), which requires
    both a conviction under 18 U.S.C. § 1028(a) and a jury finding that
    the violation involved the "production or transfer" of a false
    identity document.5      But in this case, both the indictment and the
    jury instructions asked the jury to determine only whether Francois
    had "possessed" a false identity document with intent to defraud,
    5
    Counts 10-13 of the indictment charged Francois with
    violating 18 U.S.C. § 1028(a)(4), which provides that anyone
    "knowingly possess[ing] an identification document . . . or a false
    identification document, with the intent such document or feature
    be used to defraud the United States . . . shall be punished as
    provided in subsection b of this section."
    -23-
    not whether he had produced or transferred that identity document.
    As such, we agree with the parties that imposing an enhanced
    sentence under Section 1028(b)(1) was error. The statutory maximum
    for these counts should have been the one-year statutory maximum
    provided   in    Section       1028(b)(6),     a   catchall    which   applies    to
    violations of 18 U.S.C. § 1028(a)(4) where the jury makes no
    additional findings that special circumstances were present.
    The consequences of this error are significant.             A brief
    review of the "sentencing architecture" of Francois's sentence
    demonstrates     why     vacating     the   sentence   on     Counts   10-13   will
    undermine the entire sentencing structure crafted by the district
    court.     Francois was sentenced to concurrent sentences of 140
    months each on Counts 10-13, 120 months each on Counts 1-4 and 6-9,
    and 60 months on Count 5.          He was also sentenced to 24 months each
    on   Counts     14-17,    to    run   concurrently      with    each   other     but
    consecutively with his sentences on Counts 1-13.                 In other words,
    his sentence on Counts 14-17 required him to serve 24 months on top
    of the longest term imposed for Counts 1-13 -- which was the 140
    months for Counts 10-13 at issue here –- for a total of 164 months.
    Francois's 140-month sentence on Counts 10-13 was thus
    central to the district court's calculation of Francois's overall
    sentencing package.         As such, we conclude that correcting this
    error requires us to vacate his entire sentence and remand for
    complete re-sentencing.           See United States v. García-Ortiz, 657
    -24-
    F.3d 25,     31    (1st Cir.     2011)      ("When       a   defendant    successfully
    challenges one of several interdependent sentences, the proper
    course often is to remand for resentencing on the other (non-
    vacated) counts."); United States v. Pimienta-Redondo, 
    874 F.2d 9
    ,
    14 (1st Cir. 1989) (en banc) ("[W]hen a defendant is found guilty
    on a multicount indictment .            .    .    [, and] the conviction on one
    or more of the component counts is vacated, common sense dictates
    that the judge should be free to review the efficacy of what
    remains in light of the original plan, and to reconstruct the
    sentencing architecture upon remand."); see also United States v.
    Melvin, 
    27 F.3d 710
    , 712 (1st Cir. 1994) (noting that the precedent
    in this Circuit establishes that "an appellate ruling invalidating
    a sentence, or reversing on some, but not all, counts of an
    indictment        may    implicate     the       trial       judge's   comprehensive,
    interdependent          imposition     of    a     penalty       and     thus   require
    resentencing       on    all   counts").         We   make     no   judgment    on   the
    appropriate outcome of the re-sentencing.
    V.   Conclusion
    For the reasons explained above, we affirm Francois's
    conviction, but vacate his original sentence and remand to the
    district court for re-sentencing on all seventeen counts.
    So ordered.
    -25-