United States v. Powell

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-1487

UNITED STATES,

Appellee,

v.

CHARLES POWELL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Cyr, Circuit Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Elizabeth A. Lunt, with whom Zalkind, Rodriguez, Lunt & Duncan

were on brief for appellant.
Ralph F. Boyd, Jr., Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, and Kevin J. Cloherty,

Assistant United States Attorney, were on brief for appellee.

March 29, 1995

BOWNES, Senior Circuit Judge. Following a five-day
BOWNES, Senior Circuit Judge.

jury trial, defendant-appellant Charles Powell was convicted

of being a felon in possession of a firearm. 18 U.S.C.

922(g)(1). He was then sentenced to the statutory maximum of

120 months' imprisonment. Powell challenges his conviction

and sentence on a variety of grounds. After carefully

reading the record and considering Powell's arguments, we

affirm.

I.
I.

A. General Background
A. General Background

At shortly after 2:00 p.m. on October 7, 1992,

Powell was standing outside of his truck. He was holding

food and conversing with Arvetta Boykins -- his girlfriend --

and Boykins' mother as the two women sat in the truck. The

truck was parked on Boston's Humboldt Avenue near its

intersection with Ruthven Street and across from Humboldt

Liquors. As this conversation was taking place, a grayish-

silver Subaru drove slowly down Ruthven and turned onto

Humboldt. There were four young men in the Subaru, each of

whom was wearing a hooded sweatshirt with the hood pulled up.

As the Subaru proceeded down Humboldt, the men in

the car yelled something to a couple of young men -- Chris

Cheney and Ernest Rhodes -- who were standing out on

Humboldt. Either Rhodes or Cheney yelled back. After this

exchange, the driver of the Subaru put the car in reverse and

-2-
2

accelerated quickly, making a loud screeching sound.

Observing this, Powell handed his food to his girlfriend's

mother and told the two women to "get out of here." Knowing

that trouble was brewing, they quickly complied by driving

off. Powell then ran up Ruthven.

By about 2:30 p.m., Powell had returned to Humboldt

Avenue and was talking with Cheney and Rhodes in front of

Humboldt Liquors. Around this same time, Stanley Owens came

around the corner of Ruthven and Humboldt on a mountain bike.

He had his hand in his jacket pocket and was leaning to his

left. At least one other youth also came on the scene

simultaneously. At some point, gunfire erupted. The

gunfire, which came from at least three guns, was continuous

and lasted six or more seconds. Three persons, including

Powell, were wounded in the shoot-out; Owens was killed.

Cheney and Rhodes escaped injury by taking cover inside of

Humboldt Liquors. Within an hour of the shooting, Powell was

arrested. At the time of his arrest, Powell was standing in

an alley not far from the intersection of Ruthven and

Humboldt, and was holding a .44 Charter Arms Bulldog handgun.

He also had a walking cane with him. It was subsequently

determined that a bullet from the .44 had killed Owens.

Powell does not dispute that he fired two shots with the .44

during the shoot-out.

B. The Necessity Defense
B. The Necessity Defense

-3-
3

At trial, the government argued that Powell shot

Owens with a gun he had brought to the crime scene. Powell

consistently denied this, asserting as an affirmative defense

that he took possession of the .44 only out of necessity in

the midst of the shoot-out. When he was in an ambulance

after the shooting, Powell told an arresting officer that the

youths in the gray Subaru had started shooting from the car,

that a light-skinned black male had alighted and continued

the shooting, that he (Powell) ran towards this shooter, and

that the shooter then lost control of the weapon, dropped it

to the ground, and jumped back into the Subaru, which sped

off. Powell stated that he picked up the gun and ran to the

alley in which he was arrested. He did not mention firing

the weapon at anyone.

To clarify how the shooter lost control of the

weapon, the officer asked Powell to repeat his story. At

this point, Powell told the officer that the light-skinned

male got out of the Subaru, began the shooting, and fled on

foot. He did not mention the shooter dropping or losing

control of his weapon. When the officer asked how the weapon

ended up on the ground, Powell did not answer.

At trial, Powell had a third account of what had

happened. Powell testified that he heard shots ring out as

he stood in front of Humboldt Liquors talking with Cheney and

Rhodes. While Cheney and Rhodes sought refuge inside the

-4-
4

store, Powell began running up the street towards the

intersection of Humboldt and Ruthven. Just then, a man who

was pulling a gun out of his pocket came running around the

corner. The man pointed the gun at him, but was unable to

fire it before Powell was upon him. The two scuffled, and

the gun fell to the ground. The man fled around the corner

and Powell picked up the gun. Powell began to run across

Ruthven and was shot in the leg. He turned around and fired

two shots at his assailant. He then ran up Humboldt to

Homestead Street, turned left on Homestead, and headed into

an alley, where he found a walking cane. He stayed in the

alley until he was arrested.

C. Other Guns
C. Other Guns

After the shooting, an arresting officer retrieved

a set of keys from Powell. The keys were to a two-bedroom

apartment at Fairlawn Estates in the Mattapan section of

Boston. The police obtained a search warrant for the

apartment, and executed the warrant the same night as the

shooting. The search turned up two additional weapons: a

fully-loaded black Taurus 9 mm. semi-automatic pistol with an

obliterated serial number; and a .38 caliber derringer loaded

with two rounds of ammunition. The Taurus was hidden in a

laundry basket located in the apartment's master bedroom.

The derringer was hidden on a closet shelf in the second

bedroom. Although Powell claimed to be nothing more

-5-
5

than a sporadic visitor to the Fairlawn Estates apartment,

the evidence, taken in a light most favorable to the

government, established that Powell and Boykins (Powell's

girlfriend) were living there at the time of the shooting.

Powell and Boykins had signed a rental application, lease,

lease addendum, and rules and regulations acknowledgment for

the apartment in August, 1992. Moreover, Boykins told the

grand jury that she and Powell (along with their two

children) were living in the apartment, and that she and

Powell shared the master bedroom. This testimony was

introduced at trial. Finally, the evidence showed that

Powell's name was on the mailbox for the apartment; that only

Powell and Boykins had keys to the apartment; that Powell had

personally visited the Fairlawn Estates apartment manager's

office on at least two occasions in the months prior to the

shooting; and that Powell had once telephoned the apartment

manager and made an oral request that repairs be made to the

apartment. Boykins testified that Powell's cousin and her

children also were staying at the apartment around the time

of the shooting. Powell testified that his cousin's husband

was staying there as well.

D. Proceedings Below
D. Proceedings Below

On December 18, 1992, the grand jury returned a

three-count indictment against Powell. Count I charged him

with being a felon unlawfully in possession of the .44 used

-6-
6

in the shooting. See 18 U.S.C. 922(g)(1). Count II charged

him with being a felon unlawfully in possession of the Taurus

pistol, the derringer, and the ammunition found in the

Fairlawn Estates apartment. See id. Count III charged him

with unlawfully possessing a firearm -- the Taurus -- with an

obliterated serial number. See 18 U.S.C. 922(k). Prior to

trial, the district court severed Counts II and III from the

trial of Count I. The court also granted Powell's motion in

limine requesting that the government not be allowed to refer

to the firearms and ammunition which were the subjects of

Counts II and III during its opening statement or case-in-

chief. The court did, however, reserve judgment as to

whether evidence relating to Counts II and III might become

admissible after the defense put on its case. The government

complied with the court's order and did not allude to this

evidence at any point during its case-in-chief.

The defense called Arvetta Boykins as a witness.

She testified, in response to a question by defense counsel,

that numerous random police searches of Powell in the months

preceding the shoot-out had failed to turn up a weapon on his

person or in his car. The government then asked the court to

revisit its ruling in limine. At this point, the court

allowed the government to cross-examine Boykins about whether

she or Powell had stored in the Fairlawn Estates apartment

the firearms described in Counts II and III of the

-7-
7

indictment. The court ruled that defense counsel had "opened

the door" to this inquiry by asking Boykins whether "she's

seen him with a weapon on occasion." Defense counsel, who

had asked only about police searches of Powell in the months

preceding the shoot-out, denied having asked such a question.

Boykins denied that the firearms were hers or Powell's.

After Boykins completed her testimony, Powell himself took

the stand and asserted, inter alia, that he had never had a

firearm on him in the summer of 1992.

Subsequently, the court permitted the government to

introduce the evidence underlying Counts II and III as part

of its rebuttal case. The court informed the jury that it

should not consider the firearms found in the Fairlawn

Estates apartment at all unless it first found that Powell

possessed them. The court also told the jury that, if it

found that Powell did possess these firearms, it should not

consider this evidence "to show that the defendant was the

kind of person who possessed firearms, but rather to show

that the defendant had an opportunity to obtain firearms,

that the defendant had knowledge of the availability of

firearms, that [his possession of the .44] was not a question

of mere necessity." See Fed. R. Evid. 404(b). The jury

convicted Powell of the crime alleged in Count I of the

indictment. The government thereafter dismissed the severed

Counts, II and III.

-8-
8

On March 29, 1994, the district court sentenced

Powell. The court first assigned him a base offense level of

20 pursuant to U.S.S.G. 2K2.1(a)(4) (1993). The court then

added the following nine offense-level increases: four

levels because the possession of the .44 took place in

connection with another felony offense, i.e., the

unjustifiable killing of Stanley Owens, see 2K2.1(b)(5);

one level because Powell's offense and relevant conduct

involved the possession of three firearms, see id. at

2K2.1(b)(1); two levels because one of the firearms had an

obliterated serial number, see id. at 2K2.1(b)(4); and two

levels because Powell obstructed justice by giving

"perjurious" testimony, see 3C1.1, comment. (n.3(b)).

These increases led to a final offense level of 29. Because

Powell had a criminal history category of V, his guideline

sentencing range was 140 to 175 months. In view of the ten-

year statutory maximum applicable to the offense of

conviction, see 18 U.S.C. 924(a)(2), the court sentenced

Powell to a 120-month term of imprisonment. In so doing, the

court rejected Powell's request for a downward departure from

the applicable sentencing range because Powell purported to

have committed the offense of conviction "in order to avoid a

perceived greater harm." See 5K2.11 (allowing downward

departures in some such situations).

II.
II.

-9-
9

Powell makes six arguments on appeal: (1) the

district court committed reversible error in admitting

evidence of the guns and ammunition found in the Fairlawn

Estates apartment; (2) the court committed reversible error

in permitting the government to impeach Powell with his prior

felony convictions; (3) the court erred in increasing

Powell's offense level by four on the grounds that Powell

possessed the .44 in connection with another felony offense;

(4) the court erred in increasing Powell's offense level by

three for "relevant conduct" that included the possession of

the guns found in the Fairlawn Estates apartment; (5) the

court erred in increasing Powell's offense level by two for

obstruction of justice; and (6) the court erred in declining

to depart downward. We address each argument in turn.

A. Admission of the Evidence from the Fairlawn Estates
A. Admission of the Evidence from the Fairlawn Estates

Apartment
Apartment

Powell's argument relating to the evidence from the

Fairlawn Estates apartment is tripartite. First, Powell

contends that the evidence is not relevant because the jury

could not reasonably have concluded that he possessed the

guns and ammunition discovered during the search. Second,

Powell asserts that the court erred in admitting the evidence

under Rule 404(b), even if the jury could have found that he

possessed the guns and ammunition. Third, Powell insists

that the court erred in deciding that the probative value of

this evidence was not "substantially outweighed by the danger

-10-
10

of unfair prejudice, confusion of the issues, or misleading

the jury," see Fed. R. Evid. 403, even if the evidence was

otherwise admissible. In light of the deference we give to

the challenged district court rulings, we discern no

reversible error.

Because the court conditioned the jury's

consideration of the evidence found in the Fairlawn Estates

apartment upon its initially finding possession of this

evidence by Powell, the first part of Powell's argument

implicates Fed. R. Evid. 104(b). Rule 104(b) provides:

"When the relevancy of evidence depends upon the fulfillment

of a condition of fact, the court shall admit it upon, or

subject to, the introduction of evidence sufficient to

support a finding of the fulfillment of the condition." Like

other admissibility rulings, the decision whether there is

sufficient evidence to support a finding of the fulfillment

of the condition is committed to the trial judge's "wide

discretion." See Veranda Beach Club Ltd. Partnership v.

Western Sur. Co., 936 F.2d 1364, 1371 (1st Cir. 1991).

The Supreme Court has set forth the process by

which the trial court should make this decision:

In determining whether the Government has
introduced sufficient evidence to meet
Rule 104(b), the trial court neither
weighs credibility nor makes a finding
that the Government has proved the
conditional fact by a preponderance of
the evidence. The court simply examines
all the evidence in the case and decides

-11-
11

whether the jury could reasonably find
the conditional fact . . . by a
preponderance of the evidence.

Huddleston v. United States, 485 U.S. 681, 690 (1988). We

therefore ask only whether the district court abused its

discretion in deciding that the jury could reasonably find,

by a preponderance of the evidence, that Powell possessed the

Taurus and derringer.

Possession of firearms can be either actual or

constructive. See, e.g., United States v. Rogers, 41 F.3d

25, 29 (1st Cir. 1994). In Rogers, we approved a jury

instruction which explained:

"A person who, although not in actual
possession, knowingly has both the power
and the intention at a given time to
exercise dominion or control over a
thing, or to exercise dominion or control
over the area in which that thing is
found, whether directly or through
another person, is then in constructive
possession of the thing."

Id. at 30 (emphases omitted). Thus, so long as one's

dominion/control over the area containing the thing at the

relevant time is established, "one can possess an object

while it is hidden at home in a bureau drawer, or while held

by an agent, or even while it is secured in a safe deposit

box at the bank and can be retrieved only when a bank

official opens the vault." United States v. Zavala

Maldonado, 23 F.3d 4, 7 (1st Cir.) (interpreting scope of a

-12-
12

drug possession statute), cert. denied, 115 S. Ct. 451

(1994).

In view of this broad understanding of "possession"

and the applicable preponderance standard, see Huddleston,

485 U.S. at 690, we have little difficulty concluding that

there was no abuse of discretion here. There was evidence

that Powell was sharing the master bedroom of the Fairlawn

Estates apartment at the time of the shooting; that he had

signed a variety of forms relating to the apartment; that he

had made a request for repairs to the apartment; that his

name was on the mailbox; that he was one of only two persons

with keys; and that the guns found there did not belong to

the apartment's other primary adult resident -- Boykins.

This evidence was more than adequate for the court to have

allowed the jury to consider whether Powell constructively

possessed the Taurus and derringer that were hidden within

the apartment. All the evidence tended to show Powell's

dominion over the apartment in which the guns were found, and

some of it -- Boykins' testimony that the guns were not hers

-- tended to show that the guns were Powell's (although we

acknowledge Boykins' further testimony that the guns were not

Powell's). We therefore reject Powell's relevancy argument.

The second and third parts of Powell's argument

against the admissibility of the evidence from the Fairlawn

Estates apartment do not fare any better. In admitting this

-13-
13

evidence, the district court employed the correct legal

analysis. The court first determined that the evidence had

"special relevance" to material issues raised by Powell's

case -- whether Powell possessed firearms in the months

preceding the shoot-out, whether Powell had an opportunity to

obtain firearms, whether Powell had knowledge of the

availability of firearms, and whether Powell's possession of

the .44 was a question of mere necessity -- and that it was

not being offered to show Powell's character or propensity

for criminal conduct. See, e.g., United States v. Tuesta-

Toro, 29 F.3d 771, 775 (1st Cir. 1994) (explaining Rule

404(b) inquiry), cert. denied, 115 S. Ct. 947 (1995).

The court then decided that the probative value of

the evidence was not substantially outweighed by the danger

of unfair prejudice. See id. (citing Rule 403). Because

legal error did not infect the trial court's analysis, we

afford the court's conclusions considerable deference. See

id.; see also United States v. Guyon, 27 F.3d 723, 729 (1st

Cir. 1994) (trial court's Rule 404(b) ruling reversible only

if the court abused its discretion); Veranda Beach Club, 936

F.2d at 1372 (trial court's construction of Rule 403's

probative value/unfair prejudice balance subject to

substantial deference on appeal); United States v. Wood, 982

F.2d 1, 4 (1st Cir. 1992) (decision whether to permit the

-14-
14

introduction of rebuttal evidence is within sound discretion

of the trial judge).

Again, we see no abuse of discretion. Although the

court may have oversimplified a bit in asserting that defense

counsel had asked Boykins whether she'd seen Powell with a

weapon on occasion, we think the court permissibly admitted

the challenged evidence to rebut the implication plainly

inhering in Boykins's testimony regarding the futile police

searches of Powell in the months preceding the shoot-out:

that Powell was not a possessor of firearms at the time of

the shooting. We think that the challenged evidence bore

special relevance to whether Powell only came into the

possession of the .44 as a matter of necessity, or whether he

was armed at the time the shooting began.

As we have just stated, Powell attempted to bolster

his necessity defense by introducing evidence -- his and

Boykins' testimony -- suggesting that he was not a possessor

of firearms at the time of the shoot-out. In other words,

Powell introduced evidence that he did not commit other

similar acts at the relevant point in time. While other-acts

evidence is not generally admissible "to prove the character

of a person in order to show action in conformity therewith,"

see Rule 404(b), it is admissible to rebut a defendant's

affirmative claim that s/he did not commit other similar acts

at the relevant point in time. See, e.g., Wood, 982 F.2d at

-15-
15

4 ("rebuttal evidence may be introduced to explain, repel,

contradict or disprove an adversary's proof") (citation

omitted); see also United States v. Zarnes, 33 F.3d 1454,

1470 (7th Cir. 1994) (evidence of marijuana plants growing in

defendant's vegetable garden admissible to rebut defendant's

mother's testimony that there were no marijuana plants in the

garden). The court therefore did not err in allowing the

jury to consider whether Powell's contemporaneous

constructive possession of the weapons in the Fairlawn

Estates apartment tended to show that his possession of the

.44 "was not a question of mere necessity."

Finally, the court's careful and well-crafted

limiting instruction -- which told the jury that the evidence

was not admissible to show that Powell was the kind of person

who possessed firearms -- largely dissipates any concern we

might have had about the danger of unfair prejudice to

Powell. Simply put, we see no reason why the jury could not

have followed the court's instruction in this case.

We therefore reject Powell's argument that the

admission of the evidence from the Fairlawn Estates apartment

ran afoul of Rules 404(b) and 403.

B. Impeachment of Powell with his Prior Felony Convictions
B. Impeachment of Powell with his Prior Felony Convictions

Powell next complains that the government's use of

the number of his prior felony convictions for impeachment

purposes (including its reference to the fact that, in one of

-16-
16

these cases, Powell was convicted under a different name in

another session of the district court) amounts to reversible

error. Citing United States v. Tavares, 21 F.3d 1 (1st Cir.

1994) (en banc), Powell claims that his willingness to

stipulate to the fact that he had been convicted of a felony

should have precluded the government from pursuing this line

of questioning. Powell misreads Tavares and overlooks Fed.

R. Evid. 609(a)(1).

A conviction under 922(g)(1) requires proof of

three elements: (1) that the defendant knowingly possessed a

firearm; (2) that the defendant had "been convicted in any

court of a crime punishable by imprisonment for a term

exceeding one year" at the time of the possession; and (3)

that the possession was in or affecting interstate or foreign

commerce. United States v. Tracy, 36 F.3d 187, 191 (1st Cir.

1994). In Tavares, we held that if a defendant wishes to

stipulate to the second of these three elements, "evidence

beyond the fact of the prior conviction is inadmissible

absent adequate trial court findings that its noncumulative

relevance is sufficiently compelling to survive the balancing

test of Fed. R. Evid. 403." 21 F.3d at 5. Thus, if there is

such a stipulation in a 922(g)(1) prosecution, the

government ordinarily may not introduce evidence of the

nature or number of prior convictions as part of its case-in-

chief. See id. at 5-6. We were careful to point out in

-17-
17

Tavares, however, that "in some cases evidence concerning the

nature of the prior conviction will be admissible for

impeachment or other reasons, despite its lack of probative

value on the prior element of the crime." Id. at 6.

Here, the government did not introduce evidence of

the number of Powell's prior felony convictions in order to

prove an element of its case; it introduced this evidence to

impeach Powell after he took the stand in his own defense.

We recently have made clear what we implied in Tavares: that

Tavares does not control in the impeachment context. See

Tracy, 36 F.3d at 191-92. Rather, the admissibility of the

impeachment evidence must be evaluated under Rule 609(a)(1).

This Rule provides:

General Rule. For the purpose of
General Rule.
attacking the credibility of a witness,
. . . evidence that a witness other than
an accused has been convicted of a crime
shall be admitted, subject to Rule 403,
if the crime was punishable by death or
imprisonment in excess of one year under
the law under which the witness was
convicted, and evidence that an accused
has been convicted of such a crime shall
be admitted if the court determines that
the probative value of admitting this
evidence outweighs its prejudicial effect
to the accused.

The upshot is that the evidence at issue was

properly admitted absent a showing that the trial court

abused its discretion in determining that its probative value

outweighed its prejudicial effect to Powell. See Tracy, 36

F.3d at 193 ("We review a district court's probative

-18-
18

value/prejudicial effect decision under Fed. R. Evid.

609(a)(1) for abuse of discretion."). Powell has not argued

that there was an abuse of discretion here; he has asserted

only that Tavares is controlling. Our own independent review

of the record reveals no abuse of discretion by the district

court. Indeed, allowing the government only to inquire into

the number, and not the nature, of Powell's prior felony

convictions strikes us as an eminently fair way to balance

the government's interest in impeaching Powell with Powell's

interest in avoiding the "unique risk of prejudice" present

whenever a testifying defendant is impeached with evidence of

his/her prior convictions: "the danger that convictions that

would be excluded under Fed. R. Evid. 404 will be misused by

a jury as propensity evidence despite their introduction

solely for impeachment purposes." Fed. R. Evid. 609

advisory committee's note, 1990 amendment; see also Tracy, 36

F.3d at 192.

We therefore reject Powell's claim of reversible

error in the introduction of this evidence.

C. Four-Level Increase for Possession in Connection with
C. Four-Level Increase for Possession in Connection with

Another Felony Offense
Another Felony Offense

The district court found at sentencing that

Powell's possession of the .44 was committed in connection

with another felony offense -- the unjustified killing of

Stanley Owens. The court explained its finding as follows:

-19-
19

I find, first, that the defendant
was engaged in activity which involved
him in an unjustified homicide. I do not
credit the defendant's testimony --
indeed, I find it to have been perjurious
-- as to the manner in which he found
himself in possession of the firearm
here. Accordingly, I find that the
defendant was in possession of the
firearm in connection with another felony
offense, an unjustifiable homicide under
state law. I will not get into the
particulars of how that may have been
charged under state law, what degree of
murder or manslaughter, simply that there
was no defense of self-defense. There
was no defense of necessity. There was
no defense for the defense of other
persons, but rather that the defendant
chose to place himself in the middle of a
shootout in which he chose not to
withdraw, but to engage.

The court therefore increased Powell's offense level by four.

See 2K2.1(b)(5). Powell takes issue with the court's

finding, arguing that there was no evidence to support it.

We do not agree with Powell's argument.

The standard by which we review a district court's

application of a sentencing guideline depends upon the nature

of the challenge before us. If a party claims error in the

court's interpretation of a guideline's meaning or scope, our

review is plenary. E.g., United States v. Thompson, 32 F.3d

1, 4 (1st Cir. 1994). If a party assigns error to a factual

finding made at sentencing, we review the finding for clear

error. See id. at 4-5. In so doing, we ask only whether the

court clearly erred in finding that the government proved the

-20-
20

disputed fact by a preponderance of the evidence. See United

States v. Mocciola, 891 F.2d 13, 17 (1st Cir. 1989).

It is important to note that Powell does not

challenge the trial court's apparent legal conclusion that

the killing of Stanley Owens was necessarily unjustified if,

as the court found, Powell placed himself into the middle of

the shoot-out instead of withdrawing. Cf. Commonwealth v.

Kendrick, 218 N.E.2d 408, 414 (Mass. 1966) ("The right of

self-defence does not accrue to a person until he has availed

all proper means to avoid physical combat."). In his brief,

Powell questions only the factual finding itself (along with

the statement that "there was no defense of self-defense,"

which he treats as a separate finding), asserting that there

was no evidentiary basis to support the court's upward

adjustment. We therefore will not review the trial court's

legal conclusion, and will look only to whether the outcome-

determinative finding -- that Powell chose to place himself

in the middle of the shoot-out instead of withdrawing -- was

clearly erroneous. We think that it was not.

Central to our decision is the court's tacit

determination that Powell knew of the possibility of a shoot-

out prior to its taking place. Especially given the

applicable preponderance-of-the-evidence standard, this

determination is sustainable. Immediately after seeing the

hooded men in the Subaru and hearing the car rapidly

-21-
21

accelerate in reverse, Powell insisted that Boykins and her

mother get out of the area as quickly as possible. This

gives rise to an inference that Powell knew serious trouble

might ensue. Moreover, Powell conceded on cross-examination

that he thought the men in the Subaru were gang members, and

that he knew there had been at least one shooting in the area

in the previous week.

Also important to our conclusion is the court's

finding that Powell possessed the .44 prior to the inception

of the shoot-out (a finding which is implicit in the court's

stated disbelief of Powell's testimony "as to the manner in

which he found himself in possession of the firearm here").

This finding, too, is sustainable. Powell's trial testimony

as to how he came to possess the .44 not only contradicted

the accounts he gave to an arresting officer shortly after

the shoot-out, but it also was inherently improbable. Powell

testified that, instead of taking cover inside Humboldt

Liquors with Cheney and Rhodes when shots unexpectedly began

to ring out (as one might have expected him to do), he began

running and (1) continued to run up the street towards a man

who had come around the corner and was pointing a gun at him;

(2) closed the distance between the man and himself before

the man could fire a shot; (3) disarmed the man, seized his

gun, and chased him off; and (4) turned on the run and shot

and twice hit an assailant who allegedly was shooting at him

-22-
22

from behind. The implausibility of this testimony alone is

sufficient to ground the court's contrary finding. Cf.

United States v. Hadfield, 918 F.2d 987, 999 (1st Cir. 1990)

(implausibility of a defendant's testimony can be affirmative

evidence of guilt), cert. denied, 500 U.S. 936 (1991).

Furthermore, there was hearsay evidence in the Pre-Sentence

Report indicating that a confidential informant had seen

Powell with the .44 prior to the shooting. Though not

introduced at trial, this evidence was available to the

district court at sentencing. See United States v. Tardiff,

969 F.2d 1283, 1287 (1st Cir. 1992) (court may rely on

hearsay evidence at sentencing).

What we have, then, is an armed Powell not only

remaining at a location where he knows a shoot-out is

possible, but also seeking out the two young men (Cheney and

Rhodes) who were involved in the initial confrontation -- a

confrontation that prompted Powell to insist that Boykins and

her mother leave the area immediately. In view of this

factual scenario, we cannot say that the court clearly erred

in finding that "defendant chose to place himself in the

middle of a shootout in which he chose not to withdraw, but

to engage." For the reasons stated above, this ends our

inquiry.

-23-
23

We therefore reject Powell's challenge to the

district court's finding that the .44 was possessed in

connection with another felony offense.

D. Three-Level Increase for Possession of the Guns Found in
D. Three-Level Increase for Possession of the Guns Found in

the Fairlawn Estates Apartment
the Fairlawn Estates Apartment

The district court found at sentencing that Powell

possessed the guns found in the Fairlawn Estates apartment.

It therefore increased Powell's offense level by one for

possession of the guns, see 2K2.1(b)(1), and by two because

one of the guns had an obliterated serial number, see

2K2.1(b)(4). Powell challenges this finding on two grounds.

First, he contends that there was insufficient evidence to

support the finding. Second, he asserts that his possession

of these guns was not "part of the same course of conduct or

common scheme or plan as the offense of conviction," as is

required by 1B1.3(a)(2). We are not persuaded by Powell's

arguments.

As we already have explained, the district court

did not abuse its discretion in deciding that the jury could

find, by a preponderance of the evidence, that the guns in

the Fairlawn Estates apartment were possessed by Powell. See

supra Section II-A. While fine semantic distinctions may

make it theoretically possible for a court to have acted

within the bounds of its discretion in deciding that a jury

could make a preponderant finding, and then to have committed

clear error in making the same preponderant finding itself,

-24-
24

we are confident that this is not such a case. We therefore

rely on our earlier explanation in rejecting Powell's

sufficiency argument.

Although Powell's "same course of conduct" argument

has some superficial appeal -- after all, the guns in the

Fairlawn Estates apartment did not play any role in the

Powell's possession of the .44 on Humboldt Avenue -- it is

foreclosed by circuit precedent. In United States v.

Sanders, 982 F.2d 4 (1st Cir. 1992), we analyzed whether a

defendant who had pleaded guilty to being a felon in

possession of a firearm and to using or carrying a firearm

during and in relation to a drug trafficking crime could be

subjected to an upward departure for possessing a weapon

(used to shoot his girlfriend in the head) which was not

named in the indictment. See 982 F.2d at 9-10. Answering

this question required us to consider the scope of the "same

course of conduct provision" in 1B1.3(a)(2), because the

possession of the gun used in the shooting could only be

taken into account at sentencing if it constituted relevant

conduct under 1B1.3. Id. at 9. In answering the question

in the affirmative, we said:

The "same course of conduct" concept
looks to whether the defendant repeats
the same type of criminal activity over
time. It does not require that acts be
connected together by common participants
or by an overall scheme. Here, defendant
did repeat the same type of criminal
activity -- he illegally possessed three

-25-
25

or four separate firearms when the victim
was shot. We have no difficulty viewing
the illegal possession of the four
weapons as all part of the same course of
conduct.

Id. at 9-10 (citation, ellipses, and internal quotation marks

omitted). In other words, the contemporaneous, or nearly

contemporaneous, possession of uncharged firearms is, in this

circuit, relevant conduct in the context of a felon-in-

possession prosecution. See id.

In this case, Powell clearly possessed the guns in

the Fairlawn Estates apartment at the same time that he

possessed the .44 used in the shooting. Accordingly, the

district court did not err in finding that the possession of

these weapons was part of the same course of conduct as the

offense of conviction.

We therefore reject Powell's challenge to the

court's three-level increase for the guns found in the

Fairlawn Estates apartment.

E. Two-Level Increase for Obstruction of Justice
E. Two-Level Increase for Obstruction of Justice

The district court found at sentencing that Powell

gave perjurious testimony as to how he came into possession

of the .44. The court therefore increased Powell's offense

level by two for obstruction of justice. See 3C1.1.

Powell challenges this finding on two grounds. First, he

contends that it was not accompanied by necessary subsidiary

findings that the false testimony was "concerning a material

-26-
26

matter" and given "with the willful intent to provide false

testimony, rather than as a result of confusion, mistake, or

faulty memory." See United States v. Dunnigan, 113 S. Ct.

1111, 1116 (1993). Second, he asserts that it was not

supported by the evidence. We need not and do not reach the

merits of Powell's arguments (though we observe that we

already have found there to be sufficient evidence to support

the district court's implicit finding that Powell possessed

the .44 prior to the shoot-out. See supra Section II-C.).

Because we have affirmed each of the other upward

adjustments imposed by the sentencing court, see supra

Sections II-C and II-D), Powell's 120-month sentence would

remain unchanged even if we were to find error in the court's

two-level obstruction enhancement. Reducing Powell's base

offense level by two would still give him a guideline range

of 120-150 months. Thus, the sentencing court would be

without the power to give him a lower sentence than the 120-

month term of imprisonment he actually received.

We therefore decline to address Powell's challenge

to the district court's finding that he obstructed justice by

giving perjurious testimony.

F. Refusal to Depart Downward
F. Refusal to Depart Downward

The district court declined Powell's request for a

downward departure because he allegedly committed the offense

of conviction "in order to avoid a perceived greater harm" --

-27-
27

injury to himself or others. See 5K2.11. The court

explained its decision as follows:

And with respect to objection number
31, I understand that to be the argument
made by the defendant here for downward
departure in this case. I must indicate
that the defendant's actions here were
not those of a good samaritan seeking to
protect the community and the lives of
other persons and it strikes me as not a
grounds [sic] for downward departure in
this setting.

While acknowledging that we have no jurisdiction to review

discretionary refusals to depart downward, see, e.g., United

States v. Lewis, 40 F.3d 1325, 1345 (1st Cir. 1994) (court of

appeals lacks jurisdiction to review district court's refusal

to depart downward so long as court was aware of its

authority to do so), Powell seizes on the court's use of the

term "good samaritan" and asserts that the court failed to

understand that it could depart if it found that Powell's

possession of the firearm was prompted by the need for self-

preservation. Powell's argument is unconvincing.

As we have already explained, the district court

clearly believed that Powell possessed the .44 prior to the

inception of the shoot-out. See supra Section II-C. This

necessarily means that Powell possessed the .44 prior to the

time when any need for self-defense would have arisen.

Accordingly, the court could not have found that Powell's

illegal possession was prompted by the need to protect

himself. This leads us to conclude beyond any doubt

-28-
28

whatsoever that the court did not misunderstand its departure

authority under 5K2.11; it merely decided that the facts

did not warrant a departure in this instance, and used the

term "good samaritan" a bit loosely in explaining its

decision.

We therefore lack jurisdiction over Powell's

challenge to the court's decision not to depart downward.

III.
III.

For the reasons stated, we affirm the conviction

and sentence of defendant Charles Powell.

-29-
29