DocketNumber： 96-2132
Filed Date： 9/9/1997
Status： Precedential
Modified Date： 9/21/2015
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2132
UNITED STATES,
Appellee,
v.
EDWIN COLON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Valeriano Diviacchi and Diviacchi Law Office on brief for ____________________ _______________________
appellant.
Donald K. Stern, United States Attorney, and Robert E. __________________ __________
Richardson, Assistant United States Attorney, on brief for appellee. __________
____________________
September 8, 1997
____________________
Per Curiam. Appellant Edwin Colon was convicted in the ___________
District of Massachusetts of being a felon in possession of a
firearm and of possession of an unregistered silencer. We
address his two challenges.
1. Jury selection __________________
Appellant argues the district court committed reversible
error when it allowed the government to exercise a seventh
peremptory challenge in violation of Rule 24(b) of the
Federal Rules of Criminal Procedure.
Rule 24(b) prohibits granting additional peremptory
challenges to the government. New England Enterprises, Inc. _____________________________
v. United States, 400 F.2d 58, 68 (1st Cir. 1968). Thus, it ________________
was error for the district judge to grant an additional
challenge to the government. Yet a reversal is not in order
unless the issue was preserved for appeal. Id. ___
In United States v. Projansky, 465 F.2d 123 (2d Cir. ___________________________
1972), the court explained what was required in order to
preserve the issue for appeal. In that case, the defendants'
counsel did object to the government's receipt of additional
challenges, yet counsel did not state the grounds for the
objection or mention Rule 24(b). Id. at 140. The court held ___
that since counsel had not alerted the district court to the
restrictions of Rule 24(b), counsel had not preserved the
issue for appeal. Id. ___
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Similarly, defendant's counsel here did not alert the
judge to the reason for her objection. She did not cite Rule
24(b) or argue that the court lacked authority to grant the
additional challenge. Instead, she only argued that it was
"unfair." This is not sufficient under New England ____________
Enterprises and Projansky. The judgment of conviction will ___________ _________
be affirmed.
2. Sentencing ______________
Secondly, appellant argues the district court erred in
finding he "used or possessed" a firearm in connection with
another felony (possession of cocaine with intent to sell),
and so the court should not have enhanced his base offense
level under U.S.S.G. 2K2.1(b)(5).
The firearm in question--a loaded, .22 caliber revolver-
-was located in defendant's nightstand in the master bedroom.
The district court's conclusion that the loaded revolver was
kept to protect the cocaine stored in the house is reviewed
for clear error. United States v. Thompson, 32 F.3d 1, 4 __________________________
(1st Cir. 1994). We find none. It is reasonable to conclude
that the defendant kept the revolver in his nightstand to
protect his valuables, including his cocaine, should someone
break into his home.
This court must also determine whether the keeping of a
revolver to protect a supply of drugs meets the requirement
of U.S.S.G. 2K2.1(b)(5) that the firearm be used or
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possessed "in connection with" a felony. Review of an
interpretation of a Sentencing Guideline is de novo. _________
Thompson, 32 F.3d at 4. ________
In United States v. Brewster, 1 F.3d 51 (1st Cir. 1993), _________________________
we examined when a firearm is possessed "in connection with"
drug trafficking under U.S.S.G. 2K2.1(b)(5). We held that
some nexus between the firearm and the other felony is
required, but that the language of the Guideline should be
interpreted broadly. Brewster, 1 F.3d at 54-55. "The ________
combination of firearms and drugs is common, and the
guideline encompasses the many logical links which exist
between the use of firearms and drugs." Thompson, 32 F.3d at ________
8.
Here, a logical link exists between the storing of a
large amount of cocaine for purposes of sale and the keeping
of a loaded revolver to protect those drugs from theft. The
district court did not commit error when it enhanced Colon's
base offense level pursuant to U.S.S.G. 2K2.1(b)(5).
AFFIRMED. _________
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