United States v. McCarthy

March 27, 1996 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1105

UNITED STATES,
Appellee,

v.

AEDAN C. MCCARTHY,
Defendant, Appellant.

No. 95-1106

UNITED STATES,
Appellee,

v.

JEFFREY SCOTT HUNTER,
Defendant, Appellant.

ERRATA SHEET

It is ordered that pages 6-7 of the opinion, released on
February 26, 1996, are modified to include the following
underlined language and the footnotes shall be renumbered as
indicated:

Following his release, Hunter remained the
focus of the Franklin robbery investigation.
The investigation involved a cooperative
effort between the Connecticut State Police,
the Federal Bureau of Investigation ("FBI"),
and, ultimately, law enforcement officials in
Alabama and Maine. During the course of the

investigation, James Hall2
revealed to

investigators that Hunter's friend "John" had

recently replaced his Alabama driver's

license with a Connecticut license in the

name of John E. Perry. Investigators

2Investigators also learned that James Hall is the brother
of Lance Hall, the person who rented the Sunbird for Hunter.
Neither James nor Lance Hall were involved, in any way, in the
Franklin robbery.

subsequently learned that the real John E.

Perry had lost his Alabama license prior to
the Franklin bank robbery and that McCarthy
had used the alias John Perry in Florida
following an arrest there.3 The real John
E. Perry, who lived in Alabama, identified

McCarthy as James Hardiman, an individual who

had been involved with his former wife.

Investigators also learned that, in 1991,
Hunter and McCarthy had spent time together
as cellmates in a Connecticut state prison.

3James Hall initially told investigators that a photograph

of the real John Perry resembled the individual he knew as

Hunter's friend "John." Following McCarthy's arrest, however,

James Hall identified McCarthy as Hunter's friend "John."

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1105

UNITED STATES,
Appellee,

v.

AEDAN C. MCCARTHY,
Defendant, Appellant,

No. 95-1106

UNITED STATES,
Appellee,

v.

JEFFREY SCOTT HUNTER,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]

Before

Stahl, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Brian L. Champion with whom Friedman & Babcock was on brief for

appellant Aedan C. McCarthy.
Henry W. Griffin for appellant Jeffrey Scott Hunter.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and Jonathan R.

Chapman, Assistant United States Attorney, were on brief for appellee.

February 26, 1996

STAHL, Circuit Judge. Following a three-day trial,
STAHL, Circuit Judge.

a jury convicted defendants Aedan McCarthy and Jeffrey Scott

Hunter of various charges stemming from a series of bank

robberies in Alabama, Connecticut and Maine. On appeal,

McCarthy and Hunter challenge the district court's refusal to

grant their respective suppression motions. In particular,

Hunter challenges the district court's failure to suppress

evidence produced as the result of an investigatory stop

following the Connecticut robbery. McCarthy and Hunter also

raise several challenges to their sentences. After careful

review, we affirm.

I.
I.

Background
Background

In reviewing a district court's denial of motions

to suppress, we recite the facts as found by the district

court to the extent that they derive support from the record

and are not clearly erroneous. See, e.g., United States v.

Sealey, 30 F.3d 7, 8 (1st Cir. 1994). Where specific

findings are lacking, we view the record in the light most

favorable to the ruling, making all reasonably supported

inferences. See United States v. Kimball, 25 F.3d 1, 3 (1st

Cir. 1994); United States v. Sanchez, 943 F.2d 110, 112 (1st

Cir. 1991).

A. Hunter's Connecticut Detention

On July 6, 1992, around 1:45 p.m., two men robbed a

bank in Franklin, Connecticut. Each man wore a plastic,

Halloween-type mask, covering his entire face, and each was

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armed, one with a pump-action shotgun and the other with a

semi-automatic pistol. The man carrying the shotgun stood in

the bank's lobby, issuing commands, while the other vaulted

the teller's counter and collected the money. They fled the

bank in a light-blue GMC Jimmy truck.

A short time later, the Connecticut State Police

located the truck, abandoned in an industrial park less than

a mile from the bank. Witnesses reported that a red Pontiac

Sunbird bearing Rhode Island license plates recently had been

parked near the spot where the abandoned GMC Jimmy was found.

Subsequently, the police issued an updated radio bulletin,

indicating that the two suspects were now believed to be

travelling in the red Pontiac Sunbird.

About 2:30 p.m., Officer Arthur Richard of the

Norwich Police Department spotted a red Pontiac Sunbird

bearing Rhode Island license plates at a gas station, not far

from Franklin. Officer Richard reported the sighting, and,

after the car left the station, stopped the vehicle as it

prepared to enter an interstate highway. Officer Richard

ordered the driver out of the Sunbird, patted him down for

weapons and directed him to take a seat in the back of his

police cruiser. The police cruiser's internal rear door

handles were not functional and a plastic spit guard and a

wire cage separated its rear and front seats. Officer

Richard did not handcuff the driver.

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In response to Officer Richard's questioning, the

driver identified himself as Hunter. Officer Richard ran a

registration check on the Sunbird and learned that it was

registered to a rental agency at a Rhode Island airport.

Hunter told Richard that a friend had rented the automobile

for him because his own car was under repair. Hunter,

however, refused to identify the friend.

Within minutes, several other police officers,

including Connecticut State Troopers Jerry Hall and Louis

Heller, arrived on the scene. Trooper Hall spoke to Hunter

through the open rear door of Richard's cruiser and detected

alcohol on Hunter's breath. Hunter admitted drinking a few

beers with a friend, but declined to identify the friend. At

Hall's request, Hunter took a field sobriety test, which he

passed.

About 2:43 p.m., Trooper Hall advised Hunter of his

Miranda rights and informed him that, although he was not

under arrest, he was being detained for investigative

purposes. Hunter stated that he understood his rights and

waived them, but nonetheless declined to say where he had

been since 1:00 p.m., stating only that he had been with a

"Born-Again-Christian" friend. At some point, Trooper Hall

explained that the officers were detaining him because his

Pontiac Sunbird matched identically the description of a

vehicle involved in a bank robbery that had occurred earlier

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that day. Trooper Hall continued to question Hunter

intermittently for about forty-five minutes. During that

time, other officers drove a teller from the bank by the

cruiser in an unsuccessful attempt to identify Hunter as one

of the robbers. In addition, Trooper Hall took three

Polaroid photographs of Hunter.

Meanwhile, Trooper Heller learned that the agency

registered as the owner of the Pontiac Sunbird had rented the

vehicle to Lance Hall, a black male, who had listed Hunter,

who is white, on the rental agreement as a co-driver.1

After receiving this information, Heller went to a nearby bar

and questioned patrons in an attempt to determine whether

Hunter and another individual had stopped there earlier.

Upon returning to the police cruiser in which Hunter was

still being detained, Trooper Heller asked Hunter where he

had been prior to the stop. Hunter replied that he had not

been anywhere near Franklin, but instead had spent the day at

a friend's place in the woods. Hunter, however, claimed not

to remember his friend's name nor where the place was

located. On the basis of the information he had obtained

from the rental car agency, Trooper Heller then asked Hunter

if his friend was black. With this question, Hunter became

1. Trooper Heller obtained Lance Hall's driver's license
number from the rental agency. He obtained a physical
description of Hall after requesting a check on the license
with the Connecticut State Police.

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agitated, swore at Heller, and, while gesturing in one

general direction, told him to find out for himself. This

occurred about 3:45 p.m., approximately seventy-five minutes

after Officer Richard initially stopped Hunter.

Trooper Heller knew the area well and could think

of only one black male living in the general direction in

which Hunter had gestured. Consequently, Trooper Heller

drove to that person's house and inquired whether Hunter had

visited earlier that day. The black male living at the house

identified himself as James Hall and stated that Hunter had

been there with another man named John. According to James

Hall, Hunter and John had borrowed James Hall's truck earlier

in the day and had later returned to Hall's house to change

their clothes. After interviewing James Hall, Heller

returned to where Hunter was being detained and, at 4:43

p.m., Hunter was released.

B. The Ensuing Investigation

Following his release, Hunter remained the focus of

the Franklin robbery investigation. The investigation

involved a cooperative effort between the Connecticut State

Police, the Federal Bureau of Investigation ("FBI"), and,

ultimately, law enforcement officials in Alabama and Maine.

During the course of the investigation, James Hall2 revealed

2. Investigators also learned that James Hall is the brother
of Lance Hall, the person who rented the Sunbird for Hunter.
Neither James nor Lance Hall were involved, in any way, in

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to investigators that Hunter's friend "John" had recently

replaced his Alabama driver's license with a Connecticut

license in the name of John E. Perry. Investigators

subsequently learned that the real John E. Perry had lost his

Alabama license prior to the Franklin bank robbery and that

McCarthy had used the alias John Perry in Florida following

an arrest there.3 The real John E. Perry, who lived in

Alabama, identified McCarthy as James Hardiman, an individual

who had been involved with his former wife. Investigators

also learned that, in 1991, Hunter and McCarthy had spent

time together as cellmates in a Connecticut state prison.

As the investigation progressed, Connecticut

authorities apprised FBI agents in Alabama, who were

investigating a series of similar Alabama bank robberies, of

the events surrounding the Franklin robbery. Accordingly,

McCarthy and Hunter became suspects in the Alabama robberies.

In early 1993, Alabama FBI Agent Marshall Ridlehoover learned

that McCarthy and Hunter might be living in Chilton County,

Alabama. Agent Ridlehoover alerted the Chilton County

Sheriff's Department that the two men were suspects in a

series of bank robberies in Alabama and Connecticut and sent

the Franklin robbery.

3. James Hall initially told investigators that a photograph
of the real John Perry resembled the individual he knew as
Hunter's friend "John". Following McCarthy's arrest,
however, James Hall identified McCarthy as Hunter's friend
"John".

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the department photographs of McCarthy and Hunter.

Initially, Ridlehoover told the Chilton County Sheriff's

Department that the FBI wanted to have the two men kept under

surveillance. Subsequently, Ridlehoover informed the

Sheriff's Department that a federal arrest warrant for

unlawful flight from prosecution had been issued for Hunter.

C. Alabama Arrests of Hunter and McCarthy

While driving to work on the morning of April 23,

1993, Deputy Wayne Fulmer, assistant chief deputy of the

Chilton County Sheriff's Department, noticed a pickup truck

bearing Maine license plates. Because the presence of Maine

plates in Chilton County struck Fulmer as rather unusual, he

ran a registration check on the truck and discovered that the

truck was registered to a John E. Perry. Fulmer knew at this

time that FBI investigators were looking for an individual

using the alias John E. Perry in connection with a series of

bank robberies in Connecticut and Alabama.

Later that morning, a woman at the local power

company, who had been shown a photograph of Hunter, reported

that a person resembling Hunter had requested that power be

turned on at his trailer. After receiving this report,

Fulmer brought a copy of Hunter's photograph to the woman and

asked her to notify the Sheriff's Department if the man

returned. A short time later that day, the woman reported

that Hunter had returned. Upon learning this, Fulmer left

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for the power company and requested several back-up units to

meet him there. On the way, Fulmer alerted by radio the

other officers responding to the scene that an outstanding

federal warrant existed for Hunter's arrest. The first

officer to arrive at the power company identified himself to

Hunter and asked to speak to him. In response, Hunter turned

and ran. The officer radioed that the suspect was fleeing on

foot and then gave chase.

Several officers eventually caught and arrested

Hunter. A search incident to the arrest disclosed an

envelope containing $6039 in cash on Hunter's person. Over

two weeks later, on May 11, 1993, Agent Ridlehoover matched

the serial numbers of twenty bills taken from the envelope to

bills stolen from the Casco Northern Bank in Falmouth, Maine,

on April 12, 1993.

While Hunter was fleeing on foot, Deputy Fulmer,

who had yet to reach the power company, spotted the same

pickup truck, which he had seen earlier in the day, heading

away from the power company. Fulmer directed an Alabama

state trooper who was following him to turn around and stop

the truck. At this point, Fulmer did not know the identity

of either the person driving the truck or the person who had

fled on foot. After stopping the truck, the state trooper

asked the driver for identification. The driver of the

truck, McCarthy, falsely identified himself as John E. Perry

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and gave the trooper a Maine driver's license bearing that

name.

Subsequently about 12:15 p.m., McCarthy was taken

into custody and transported to the Chilton County

Courthouse. McCarthy was searched and approximately $2000 in

cash was found on his person. Shortly after stopping

McCarthy, an official from the Chilton County Sheriff's

Department notified Connecticut officials that McCarthy was

in custody. The Connecticut officials requested that the

Chilton County Sheriff's Department continue to hold McCarthy

while they attempted to secure an arrest warrant based on

McCarthy's alleged participation in the Franklin robbery.

Sometime after midnight, a Connecticut Superior Judge signed

an arrest warrant for McCarthy for his participation in the

Franklin robbery.4

D. Search and Seizure of McCarthy's Suitcases, Truck and

Storage Unit

On the evening of April 23, 1993, the day of

McCarthy's arrest in Alabama, Deputy Fulmer received a

telephone call from Chilton County resident Gene Ellison.

Ellison told Fulmer that McCarthy and Hunter had been staying

4. Several months later, the Connecticut prosecution against
McCarthy was dismissed without prejudice following the
discovery that the affidavit on which the Connecticut arrest
warrant was based included an incorrect factual statement.
Because the disposition of this appeal does not depend on the
validity of the Connecticut arrest warrant, we do not discuss
it further.

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with his neighbor, Joe Henderson, and that McCarthy and

Hunter had left some items in Henderson's trailer that Fulmer

should see. Deputy Fulmer agreed to come by Henderson's

trailer. When he arrived, Fulmer found a maroon suitcase

laying open on Henderson's kitchen table. An AK-47 assault

rifle, a pistol, extra clips and a bullet-proof vest sat atop

the suitcase in plain view. Henderson told Fulmer that the

suitcase and its contents belonged to McCarthy and asked him

to take possession of them.

Henderson further explained that he had permitted

McCarthy and Hunter to stay with him for the past six days in

return for $40 rent. Henderson knew McCarthy and Hunter

because the two men had previously rented a trailer from

Henderson's landlord, J.B. Ellison. While staying with

Henderson, McCarthy and Hunter had slept on a couch and an

easy chair in Henderson's living room and had kept their

belongings in a back bedroom that Henderson used for storage.

On Thursday, April 22, the day before the arrests, Henderson

had told the two men that he was expecting company for the

upcoming weekend and that they would have to leave. When

Henderson left for work on the morning of the arrests,

McCarthy and Hunter were preparing to move out of the

trailer.

When Henderson returned home that afternoon, Gene

Ellison told him that the police had arrested McCarthy and

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Hunter. Henderson then decided to check his trailer to see

if McCarthy and Hunter had left anything behind. In the

storage room, he found two suitcases, the maroon suitcase

that was closed and locked, and an American Tourister

suitcase that was laying open with clothes piled on top of

it. Henderson attempted to move the maroon suitcase out of

the room to a storage shed behind his trailer but was unable

to do so because the suitcase was too heavy. He asked Gene

Ellison to help him. Ellison moved the suitcase into the

other room and cut the lock off of it in order to find out

why it weighed so much. After Ellison cut off the lock,

Henderson opened the suitcase and discovered the weapons, the

bullet-proof vest and other items. Some time later,

Henderson decided he should turn the suitcase and its

contents over to the police so he asked Ellison to call the

sheriff's department.

During Deputy Fulmer's visit on the evening of

April 23, Henderson failed to tell him about the additional

American Tourister suitcase Henderson had discovered.

Several days later, however, Henderson told an FBI agent

about it during an interview. Later, at Henderson's request,

Fulmer and FBI agent Rich Schott took possession of the

suitcase. Agent Ridlehoover inventoried the American

Tourister on May 1, 1993, pursuant to standard FBI practice.

No warrant was obtained for the suitcase.

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Following McCarthy's Alabama arrest, a warrant was

obtained on April 28, 1993, to search his pickup truck.

Accordingly, investigators searched the truck, finding a

receipt for a storage unit located in Scarborough, Maine.

Subsequently, on May 12, 1993, FBI investigators obtained a

warrant to search the storage unit and its contents. The

ensuing search revealed a footlocker containing numerous

incriminating items with possible connections to the robbery

of the Casco Northern Bank. The footlocker belonged to

McCarthy, and McCarthy, using the alias John Perry, had

rented the storage unit.

E. Prior Proceedings

Prior to trial, Hunter moved to suppress evidence

arising from the Connecticut stop and the Alabama arrests.

With respect to the Connecticut stop, Hunter sought to

suppress the statements and gesture he made during the first

seventy-five minutes of the stop that ultimately led the

police to James Hall. McCarthy moved to suppress evidence

arising from his Alabama arrest and the searches of the two

suitcases, his pickup truck and the Maine storage unit. A

magistrate judge held a two-day evidentiary hearing on the

motions and, subsequently, issued a recommended decision

denying them both. After a de novo review, the district

court denied the motions, adopting substantially all of the

magistrate judge's recommended findings.

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At the ensuing trial, McCarthy and Hunter were

tried together before a jury on a five-count indictment

alleging various charges arising from a series of three bank

robberies in Connecticut, Alabama and Maine.5 The jury

found McCarthy and Hunter guilty of all charges, convicting

the two men on Count One of conspiring to commit bank

robberies in Connecticut, Alabama and Maine in violation of

18 U.S.C. 371, on Count Two of committing the Maine robbery

of the Casco Northern bank in violation of 18 U.S.C.

2113(a), 2113(d) and 18 U.S.C. 2, and on Count Three of

knowingly using and carrying firearms during the Casco

robbery in violation of 18 U.S.C. 924(c). The jury also

convicted McCarthy on Count Four of being an armed career

criminal in violation of 18 U.S.C. 922(g)(1), 924(e)(1),

and Hunter on Count Five of being a felon-in-possession in

violation of 18 U.S.C. 922(g)(1), 924(a)(2) and 18 U.S.C.

2. Following trial, the district court sentenced McCarthy

to 387 months imprisonment.6 The court sentenced Hunter to

5. Specifically, Count One of indictment charged McCarthy
and Hunter with conspiring to rob the Franklin bank on July
6, 1992, the Peoples Bank in Woodstock, Alabama, on November
13, 1992, and the Casco Northern bank in Falmouth, Maine, on
April 12, 1993.

6. McCarthy was sentenced to 327 months on Count Two for
committing the Casco Northern bank robbery, to be served
concurrently to a 60-month sentence on Count One for
conspiracy, and a 180-month sentence on Count Four for being
an armed career criminal. On Count Three, the court
sentenced McCarthy to the mandatory 60-month consecutive
sentence on the 924(c) firearm violation.

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270 months imprisonment to be served consecutively to his

Connecticut state sentence for violation of probation.7

II.
II.

Discussion
Discussion

On appeal, Hunter challenges the district court's

denial of his suppression motion, contending that his

Connecticut detention following the Franklin robbery and his

later Alabama arrest violated the Fourth Amendment.

Similarly, McCarthy challenges the denial of his suppression

motion, taking issue with the district court's refusal to

find error in his Alabama arrest and the subsequent search of

his two suitcases, pickup truck and storage unit. Both

defendants also raise several issues relating to their

respective sentences. We address each argument in turn.

A. The Suppression Motions

Our review of a district court's decision to grant

or deny a suppression motion is plenary. United States v.

DeMasi, 40 F.3d 1306, 1311 (1st Cir. 1994), cert. denied, 115

S. Ct. 947 (1995). "We defer, however, to a district court's

factual findings if, on a reasonable view of the evidence,

they are not clearly erroneous." Id.; see also United States

7. The court sentenced Hunter to 210 months on Count Two for
committing the Maine robbery, to be served concurrently to a
60 month sentence on Count One for conspiracy, and a 120
month sentence on Count Five for being a felon in possession.
On Count Three, the district court sentenced Hunter to the
mandatory 60-month consecutive sentence on the 924(c)
firearm charge.

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v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). A clear error

exists only if, after considering all the evidence, we are

left with a definite and firm conviction that a mistake has

been made. United States v. McLaughlin, 957 F.2d 12, 17 (1st

Cir. 1992). Moreover, we will uphold a district court's

decision to deny a suppression motion provided that any

reasonable view of the evidence supports the decision.

United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993).

1. Hunter's Connecticut Detention

Hunter initially challenges the legality of the

Connecticut stop. Hunter contends that the stop constituted

a de facto arrest unsupported by probable cause, and,

therefore, the comments and gesture he made during the first

seventy-five minutes of the stop -- leading eventually to the

discovery of James Hall -- should have been suppressed.

Furthermore, Hunter contends that the testimony of James Hall

should have been suppressed as the fruit of an illegal

arrest. We disagree.

The Fourth Amendment does not demand that probable

cause exist prior to all police action. See generally Terry

v. Ohio, 392 U.S. 1 (1968). Indeed, it is well-settled that,

based merely on a reasonable and articulable suspicion, a

police officer may make a brief stop or "seizure" of an

individual to investigate suspected past or present criminal

activity. See United States v. Hensley, 469 U.S. 221, 226-

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229 (1985) (extending Terry stops to past criminal conduct);

United States v. Quinn, 815 F.2d 153, 156 (1st Cir. 1987).

The relevant question in these cases is not whether the

police had probable cause to act, but instead whether the

actions taken were reasonable under the circumstances. See

United States v. Sharpe, 470 U.S. 675, 682 (1985).

In determining whether a challenged action is

reasonable, and, thus, falls within the range of permissible

investigatory stops or detentions, a court should engage a

two-step inquiry, asking (1) whether the officer's action was

justified at its inception; and (2) whether the action taken

was reasonably related in scope to the circumstances

justifying the interference in the first place. Terry, 392

U.S. at 19-20; United States v. Stanley, 915 F.2d 54, 55 (1st

Cir. 1990). Moreover, the Supreme Court has explained that,

in such circumstances, the question of reasonableness

requires a court to "balance[] the nature and quality of the

intrusion on personal security against the importance of the

governmental interests alleged to justify the intrusion."

Hensley, 469 U.S. at 228 (emphasis added). The inquiry is

fact specific and a court should consider the totality of the

circumstances confronting the police at the time of the stop.

Kimball, 25 F.3d at 6; see also United States v.

Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir. 1991), cert.

denied, 502 U.S. 1030 (1992).

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At the outset, we note that Hunter essentially

concedes that Officer Richard had sufficient reasonable

suspicion to make the initial stop.8 Hunter's principal

complaint, instead, focuses on the second step of the

inquiry, arguing that the length of his detention was simply

too long. He contends that the length of the Connecticut

stop exceeded the permissible durational limits of an

investigative stop not supported by probable cause, and,

thus, made the entire scope of police conduct unreasonable

per se.

As we have noted before, however, "`there is no

talismanic time beyond which any stop initially justified on

the basis of Terry becomes an unreasonable seizure under the

[F]ourth [A]mendment.'" Quinn, 815 F.2d at 157 (quoting

United States v. Davies, 768 F.2d 893, 901 (7th Cir.), cert.

denied, 474 U.S. 1008 (1985)); see also United States v.

Place, 462 U.S. 696, 709-10 (1983) (declining to adopt any

8. In his reply brief, Hunter denies conceding that the
police had sufficient reasonable suspicion to make the
initial stop. To the contrary, we think a fair reading of
his opening argument to this court and the arguments he made
in his briefs to the district court below belies this
contention. In any event, the district court's finding that
Officer Richard properly acted in initially detaining Hunter
after spotting him shortly after the robbery, driving a red
Pontiac Sunbird, is eminently supportable. The close
proximity in both distance and time to the Franklin robbery
combined with the fact that Hunter's car identically matched
the description of the vehicle the suspects were reported to
be driving are articulable and specific facts that clearly
gave rise to the reasonable suspicion needed to justify the
initial stop.

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outside time limitation on a permissible Terry stop, but

holding ninety-minute detention of luggage unreasonable on

specific facts of case); United States v. Vega, 72 F.3d 507,

514-16 (7th Cir. 1995 (upholding sixty-two minute stop; "the

crux of our inquiry is whether the nature of the restraint

meets the Fourth Amendment's standard of objective

reasonableness"). "[C]ommon sense and ordinary human

experience must govern over rigid criteria." Quinn, 815 F.2d

at 157 (quoting Sharpe, 470 U.S. at 685). Indeed, whether a

particular investigatory stop is too long turns on a

consideration of all relevant factors, including "the law

enforcement purposes to be served by the stop as well as the

time reasonably needed to effectuate those purposes."

Sharpe, 470 U.S. at 685. Moreover, a court should ask

"whether the police diligently pursued a means of

investigation that was likely to confirm or dispel their

suspicions quickly, during which time it was necessary to

detain the defendant." Id. at 686.

Furthermore, time of detention cannot be the sole

criteria for measuring the intrusiveness of the detention.

Clearly, from the perspective of the detainee, other factors,

including the force used to detain the individual, the

restrictions placed on his or her personal movement, and the

information conveyed to the detainee concerning the reasons

for the stop and its impact on his or her rights, affect the

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nature and extent of the intrusion and, thus, should factor

into the analysis. Cf. Zapata, 18 F.3d at 975 (distinction

between investigatory stop and de facto arrest turns in part

on what "a reasonable [person] in the suspect's position

would have understood his [or her] situation" to be).

Finally, the Supreme Court has admonished that, in all

events, "[a] court making this assessment should take care to

consider whether the police are acting in a swiftly

developing situation, and in such cases the court should not

indulge in unrealistic second-guessing." Sharpe, 470 U.S. at

686.

Though the issue is exceedingly close, we believe

that, on the circumstances that obtain here, the district

court did not err in refusing to suppress Hunter's statements

and gesture leading to the discovery of James Hall.

Initially we note that, although Hunter challenges the length

of the Connecticut detention in its entirety, the statements

and gestures that he seeks to suppress occurred within the

first seventy-five minutes of the stop. Thus, we limit the

scope of our analysis accordingly and do not address whether

the district court would have erred in failing to suppress

any statements or evidence obtained later in the stop.

More importantly, when limited to this time frame,

we do not find the scope of the stop particularly

unreasonable. There is no evidence or even an allegation of

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less than diligent behavior on the part of the police. The

officers on location used a number of different investigative

techniques in their efforts to pursue quickly any information

that might have dispelled the reasonable suspicion that

initially triggered the stop. Officer Richard ran the

registration check of the Sunbird immediately after stopping

Hunter. Trooper Hall promptly informed Hunter of his rights

and questioned him about where he had been since the time of

the robbery. Other officers brought a teller from the bank

to the scene in an attempt to establish definitively whether

or not Hunter had participated in the robbery. Trooper

Heller, once on the scene, promptly telephoned the rental

agency in an effort to learn more about the individuals who

had rented the automobile. In short, we think that the

record clearly belies any contention that the police officers

involved neglected to employ any reasonably available

alternative methods that could have significantly shortened

their inquiry. See Quinn, 815 F.2d at 158. The excessive

length of Hunter's detention arose not because the officers

engaged in dilatory tactics, but, instead, because their

investigative efforts, though reasonable under the

circumstances, failed to dispel the suspicion that gave rise

to the stop.9

9. In Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981),

the Court noted that "[i]f the purpose underlying a Terry

stop -- investigating possible criminal activity -- is to be

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Moreover, while it is clear that Hunter had a

constitutional right not to answer any questions, the fact

that his responses were evasive and, at times, defiant is

relevant in evaluating the scope of the officers' conduct.

See, e.g., id. (detention of forty-five to sixty minutes;

noting that it would have been unreasonable to release

defendants when their answers to initial questions raised

rather than lowered suspicion); United States v. Richards,

500 F.2d 1025, 1029 (9th Cir. 1974) (detention over an hour;

"implausible and evasive responses . . . indicated that

something was awry and created even more reason for the

investigation being pursued further"), cert. denied, 420 U.S.

924 (1975). Not only did Hunter's incomplete and vague

responses reasonably heighten the officers' suspicion that

Hunter had participated in the robbery, they also made the

attempt to dispel that suspicion more difficult. Indeed, had

Hunter cooperated initially and told Officer Richard that he

had been at James Hall's house, the length of the stop would

have been much shorter. Cf. Sharpe, 470 U.S. at 687-88

served, the police must under certain circumstances be able
to detain the individual for longer than the brief time
period involved in Terry." See also Sharpe, 470 U.S. at 685-

86. The Court then listed, with apparent approval, a variety
of different investigative techniques, including those used
here, that police might appropriately use during the course
of an investigative stop to dispel their reasonable
suspicion. Summers, 452 U.S. at 700 n.12 (quoting 3 W.

LaFave, Search and Seizure 9.2, at 36-37 (1978)).

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23

(upholding detention where delay attributable in large part

to defendant's evasive attempts to avoid stop).

Next, in attempting to strike the proper balance,

we note that the governmental purposes served by the

detention in this case are substantial. Indeed, several

factors, specific to this case, reasonably enhanced the

government's interest in detaining Hunter. First, the nature

of the suspected criminal conduct, a daylight armed robbery

of a bank involving physical threats to both customers and

bank personnel, was severe. Second, the detention took place

shortly after the robbery in a nearby town not far from the

bank. As a noted commentator has explained, that "the

suspected crime is serious enough to prompt flight if the

suspect is freed, or . . . recent enough that if probable

cause soon develops it would be desirable to arrest the

suspect and subject him [or her] to a search" are both

legitimate reasons for continuing custody that must be

considered in the total balance. 3 Wayne R. LaFave, Search

and Seizure 9.2(f), at 386 (2d ed. 1987). Finally, the

fact that at the time of the stop Hunter was preparing to

enter an interstate highway in a rented vehicle bearing out-

of-state plates weighs on the government's side of the scale.

Objectively, from the perspective of the officers on the

scene, if they had not detained Hunter at that point, he

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24

could easily have left the jurisdiction and evaded the

dragnet of the Connecticut State Police.

Finally, we do not believe, on the facts of this

case, that the stop was needlessly intrusive. Although the

police detained Hunter in the back of Officer Richard's

vehicle, he was never handcuffed, see, e.g., State v. Reid,

605 A.2d 1050, 1053-54 (N.H. 1992) (placing defendant in

cruiser does not make Terry stop unreasonable); cf. Quinn,

815 F.2d at 157 n.2 (use of handcuffs does not make Terry

stop de facto arrest), nor did the officers keep the rear

door to the police cruiser continuously closed. Moreover,

there is no evidence in the record to suggest that any

officer ever drew a gun on Hunter. Cf. United States v.

Trullo, 809 F.2d 108, 113 (1st Cir.) (use of weapons without

more does not elevate stop to de facto arrest), cert. denied,

482 U.S. 916 (1987).

Furthermore, the officers informed Hunter that,

although he was not free to leave, he was not under arrest,

and that they were detaining him only for investigative

purposes because a car identical to his Pontiac Sunbird had

been involved in a bank robbery earlier that day.

Additionally, only fifteen minutes after Officer Richard

first stopped Hunter, Trooper Hall read Hunter his Miranda

rights. Clearly, timely disclosure of such information

(e.g., the reasons for the detention, and an explanation of

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25

the detainee's rights) has the potential to reduce the stress

of such a detention and, thus, minimize its intrusiveness.

See Place, 462 U.S. at 710 (noting that incorrect information

given to defendant by law enforcement officials during

detention militated against finding scope of stop

reasonable); United States v. LaFrance, 879 F.2d 1, 7 (1st

Cir. 1989) (similar); cf. Brown v. Illinois, 422 U.S. 590,

603 (1975) (fact that Miranda warnings given is relevant in

determining whether statement given following illegal arrest

can be considered voluntary).

In sum, although as we have said the issue is

exceptionally close, we think that, on the record before us,

the balance tips in favor of the government. Admittedly,

Hunter's detention following the Franklin robbery was hardly

what one would normally consider "brief," and, under

circumstances different from those found here, we have no

doubt that an investigative detention of similar length would

unacceptably offend the Constitution. Nonetheless, we are

not persuaded, on the facts of this case (i.e. evidence

sought to be suppressed was obtained during the first

seventy-five minutes of the stop, diligent efforts by the

police to dispel reasonable suspicion, defendant's evasive

responses significantly contributing to delay, substantial

government interests in the detention, and prompt disclosure

to the defendant of his rights and the reasons for the

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26

detention), that the district court erred in refusing to

suppress Hunter's statements and gesture.10

2. Hunter's Alabama Arrest

Hunter also challenges the legality of his arrest

in Alabama. Hunter contends that, at the moment of his

arrest, the arresting officer did not have probable cause to

take Hunter into custody. This challenge is without merit.

The district court found that, at the time Hunter

was taken into custody, Deputy Fulmer and the other officers

involved in Hunter's arrest were aware of an outstanding

federal arrest warrant for Hunter. Such a finding, if

10. Furthermore, we also have substantial doubt concerning
the scope of the evidence Hunter seeks to suppress
(specifically, the testimony of James Hall). Though we
question, but need not decide, whether the government has
sufficiently developed the record below to support such a
finding, see United States v. Infante-Ruiz, 13 F.3d 498, 503

(1st Cir. 1994) ("[G]overnment bears burden of showing, by
reference to `demonstrated historical facts' and by a
preponderance of the evidence, that the information or item
would inevitably have been discovered by lawful means."), we
think it likely that, in the normal course of the
investigation, the government would have inevitably
discovered James Hall. Indeed, James Hall's brother, Lance,
rented the Pontiac Sunbird. Trooper Heller obtained this
information and the fact that Hunter was listed as a driver
on the rental agreement solely on the basis of the car's
license plate number. It is true that the record lacks any
evidence clearly establishing that the police would have
possessed the license plate number absent the stop, or that,
during the normal course of the investigation, officers would
have spoken to Lance Hall and necessarily have made the
connection to his brother James. Nonetheless, we do not
think it is unduly speculative to infer that such events
would have occurred. Had the police spoken to Lance Hall, it
is at least arguably reasonable that he would have directed
them to his brother James, who also knew Hunter and lived in
the vicinity of the Franklin robbery.

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27

supported by the record, is a sufficient basis to support the

arrest. See Whiteley v. Warden, Wyo. State Penitentiary, 401

U.S. 560, 568 (1971) ("police officers called upon to aid

other officers in executing arrest warrants are entitled to

assume that the officers requesting aid offered the

magistrate the information requisite to support an

independent judicial assessment of probable cause"); cf.

Hensley, 469 U.S. at 229-32 (extending Whiteley to cover

reliance on a flyer or bulletin to establish reasonable

suspicion justifying investigatory stops). Fulmer's

testimony at the suppression hearing, stating that, prior to

Hunter's arrest, he knew about the warrant and had alerted

the other officers involved to this fact, amply supports the

finding. The fact that Fulmer's report made subsequent to

the arrest fails to mention the warrant is of little moment.

Deputy Fulmer explained at the suppression hearing that his

report was incomplete, and the district court was fully

entitled to credit that testimony.

3. McCarthy's Alabama Arrest

McCarthy's challenges to his stop and arrest in

Chilton County, Alabama, on April 23, 1993, are equally

unavailing. McCarthy contends that no reasonable basis or

probable cause existed to stop his pickup truck as it drove

away from the power station. Moreover, he contends that,

even if the police had sufficient reasonable suspicion to

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28

detain him briefly for investigative purposes, the detention

became an illegal de facto arrest because he was taken into

custody and held without probable cause until 1:00 a.m. the

next day when a warrant finally issued.

First, we disagree that the district court clearly

erred in finding that Deputy Fulmer had sufficient reasonable

suspicion to have McCarthy's truck pulled over. Fulmer

testified that, at the time of the stop, he was generally

aware of the details of the ongoing Franklin investigation.

See Hensley, 469 U.S. at 229-32 (police without specific

knowledge of facts supporting flyer or bulletin issued

concerning suspects may nonetheless rely on the flyer or

bulletin to supply reasonable suspicion justifying an

investigatory stop). He stated that he specifically knew

that McCarthy and Hunter were suspects in a series of bank

robberies, that the two men were suspected to be living

together in the area, that McCarthy was falsely using the

name John E. Perry, and that an arrest warrant existed for

Hunter. Moreover, Fulmer testified that he knew that the

Isuzu truck was registered to a "John E. Perry," and that he

believed that person to be the John E. Perry under suspicion

by the FBI. These facts alone arguably give rise to a

reasonable suspicion sufficient to justify a brief

investigatory stop of McCarthy. More importantly, adding to

this collection McCarthy's presence at the scene following

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29

Hunter's flight significantly heightened the suspicion

concerning McCarthy's involvement. Thus, we find no error in

the district court's finding.

Furthermore, we note that Deputy Fulmer testified

that, at the time he ordered the stop, he did not definitely

know whether McCarthy or Hunter was driving the truck or

whether Hunter was a passenger. Clearly, it was conceivable

that Hunter, after initially fleeing on foot, could have run

to, and continued his escape in, McCarthy's Isuzu pickup

truck. Thus, independent of his suspicion about McCarthy's

involvement in the robberies, Fulmer could justifiably have

ordered the stop simply to determine whether or not Hunter

was inside the truck.

Second, we find no error in the finding that

probable cause to hold McCarthy arose shortly after the

initial stop. Under Alabama state law it is an offense to

provide illegal identification to a police officer. Ala.

Code 13A-9-18.1 ("Giving of false name or address to a law

enforcement officer."); cf. Ala. Code 13A-9-18 ("Criminal

impersonation."). Fulmer testified that, at the time of the

arrest, he knew McCarthy's identification of himself as Perry

was false and that such identification violated Alabama state

law. Thus, once McCarthy provided his driver's license to

the trooper who stopped him, sufficient probable cause arose

to take him into custody. We find no clear error in the

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30

district court's crediting this testimony or in holding that

it provided a sufficient basis for detaining McCarthy.

4. Seizure of McCarthy's Two Suitcases

McCarthy also challenges the seizure of his two

suitcases. McCarthy contends that the district court

erroneously found that the seizure of the weapons and the

other items discovered in his maroon suitcase properly came

within the "plain view" exception to the warrant requirement.

He argues that the incriminating nature of the evidence was

not immediately apparent to Deputy Fulmer. McCarthy also

contends that no credible evidence established that he owned

the seized weapons or that they were actually found in his

suitcase. With respect to his second suitcase, McCarthy

argues that the district court erred in finding that he had

no expectation of privacy in the American Tourister suitcase.

McCarthy maintains that, though he left the suitcase in

Henderson's trailer, he left it closed and locked. Moreover,

he contends that he had not abandoned the suitcase because he

intended to retrieve it later in the evening on the day of

his arrest. We find these arguments unpersuasive.

To satisfy the "plain view" exception to the

warrant requirement, the government must show that (1) the

law enforcement agent was legally in a position to observe

the seized evidence, and (2) the incriminating nature of the

evidence was "immediately apparent" to the officer. See

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31

United States v. Giannetta, 909 F.2d 571, 578 (1st Cir.

1990). The incriminating nature of the evidence is

"immediately apparent," if the officer, upon observing the

evidence, has probable cause to believe the item is

contraband or evidence of a crime. Id. "A practical

nontechnical probability that incriminating evidence is

involved is all that is required." Texas v. Brown, 460 U.S.

730, 742 (1983) (quotations omitted).

While it is true that the district court failed to

make an explicit finding on the "immediately apparent" prong,

the oversight matters little in the context of this case.

Deputy Fulmer knew that McCarthy, along with Hunter, was a

suspect in a series of armed bank robberies. Without

question, the automatic weapons, ammunition and bullet-proof

vest were all potential instrumentalities of such crimes. We

think a finding that the incriminating nature of the evidence

was immediately apparent to Fulmer, implicit in the district

court's refusal to suppress the weapons and other items

seized from the suitcase, is clearly supported by the record.

We also find little merit in McCarthy's contention

that no credible evidence established that he owned the

weapons and other items seized or that they were actually in

his suitcase prior to its being opened. As an initial

matter, we note that McCarthy's contention is more

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32

appropriately considered as an attack on the relevancy of the

seized weapons rather than a fourth amendment issue. If, as

McCarthy contends, he did not own the weapons and did not

store them in his suitcase, then the seizure does not violate

his fourth amendment rights because it did not intrude on his

privacy. See Sanchez, 943 F.2d at 112-13 (Fourth Amendment

rights are personal). On the other hand, if McCarthy's

allegation that he did not own or possess the weapons and

other items is true, then they would not have been relevant

as evidence in his criminal trial. See Fed R. Evid. 401

(evidence is relevant if it tends to make a disputed fact

more or less probable). When, as here, the relevancy of

specific evidence turns on a condition of fact -- whether the

suitcase actually contained the seized weapons and other

items -- a court shall admit it subject to the introduction

of evidence sufficient to fulfill that condition. Fed. R.

Evid. 104(b); United States v. Trenkler, 61 F.3d 45, 53 (1st

Cir. 1995).

While Gene Ellison, the person who purportedly cut

the lock off the maroon suitcase, did not testify at the

suppression hearing, we think the evidence adequately

supports the conclusion that the items seized were in the

suitcase prior to its opening. Henderson testified that,

although Ellison took the padlock off the suitcase while he

was in the other room, he, not Ellison, rummaged through the

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33

suitcase and found the weapons and the bulletproof vest.

Moreover, Henderson testified that the suitcase was extremely

heavy and that he needed Ellison's assistance to move it from

the back room of his trailer. These facts reasonably support

the inference that the weapons and other items were in the

suitcase prior to Ellison's removal of the lock.

Furthermore, that the items were in the suitcase, reasonably

supports the inference that they belonged to McCarthy.

Finally, we find no clear error in the court's

finding that McCarthy had no legitimate expectation of

privacy in the contents of the American Tourister suitcase.

Based on Henderson's testimony, the district court

supportably found that McCarthy left the suitcase unlocked

and open in the back room of Henderson's trailer, a room to

which McCarthy did not have exclusive access. Thus, McCarthy

clearly had assumed the risk that Henderson might consent to

a search of the room (and that the search would extend to any

items, like the suitcase, sitting open in plain view). See,

e.g., United States v. Hall, 979 F.2d 77, 79 (6th Cir. 1992),

cert. denied, 113 S. Ct. 1357 (1993). Moreover, McCarthy's

legitimate expectation argument is further undercut by the

fact that he left the open suitcase in Henderson's trailer

after Henderson told McCarthy that he and Hunter had to

leave. Cf. United States v. Rahme, 813 F.2d 31, 34-35 (2d

Cir. 1987) (hotel guest had no expectation of privacy in

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34

luggage left in room when, because of his arrest, he

defaulted on rent due).11

B. Sentencing Issues

We now turn to the issues Hunter and McCarthy raise

concerning their respective sentences. Hunter complains that

the district court unfairly sentenced him to a mandatory

five-year sentence under 18 U.S.C. 924(c) while

simultaneously enhancing his total offense level for

brandishing a firearm during and in relation to the

Connecticut and Alabama robberies. Hunter also contends that

the district court erroneously ordered his entire federal

sentence to run consecutively to his unexpired state

sentence. McCarthy contends that the district court

incorrectly sentenced him as an armed career criminal under

18 U.S.C. 924(e). We discuss each argument below.

1. Standard of Review

In the sentencing context, we review factbound

matters for clear error, and such facts need only be

supported by a preponderance of the evidence. United States

v. Andujar, 49 F.3d 16, 25 (1st Cir. 1995). When the

11. McCarthy also challenges the search of his Isuzu pickup
truck, arguing that it was the fruit of his illegal arrest
and the illegal search of his maroon suitcase. Because we
find no error in either his initial arrest or the search of
the suitcase, we find no error in the search of the truck.
Furthermore, we also reject McCarthy's final challenge
concerning the search of his storage shed in Maine because it
is likewise substantially predicated on the assumption that
the earlier arrest and seizures were illegal.

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35

sentencing issues involve questions of law, including the

applicability of a relevant guideline, our review is de novo.

United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).

Within certain limits, decisions to impose concurrent or

consecutive sentences are committed to the judgment of the

sentencing court, and such decisions are reviewed only for an

abuse of discretion. See United States v. Whiting, 28 F.3d

1296, 1210 (1st Cir.), cert. denied, 115 S. Ct. 378, 498,

499, 532 (1994).

2. Hunter's Sentencing Issues

a. Brandishing Enhancement

Section 2K2.4 of the Sentencing Guidelines

provides, inter alia, that a person convicted under 18 U.S.C.

924(c) shall be sentenced to a term of imprisonment as

required by the statute. U.S.S.G. 2K2.4(a).12 In turn,

18 U.S.C. 924(c) specifies that any individual convicted of

using a firearm during and in relation to a crime of violence

or a drug trafficking crime shall be sentenced to a mandatory

term of at least five years in prison to be served

consecutively to any other punishment. 18 U.S.C. 924(c).

Application Note 2 to U.S.S.G. 2K2.4 adds that:

Where a sentence under [ 2K2.4] is
imposed in conjunction with a sentence
for an underlying offense, any specific

12. All guidelines' citations, unless otherwise indicated,
are to the November 1994 Guidelines Manual, the manual in
effect on the date of sentencing. See U.S.S.G. 1B1.11.

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36

offense characteristic for the
possession, use, or discharge of an
explosive or firearm . . . is not to be
applied in respect to the guideline for
the underlying offense.

U.S.S.G. 2K2.4, comment. (n.2). Thus, where a defendant

receives a mandatory consecutive sentence for use of a

firearm during a crime of violence, pursuant to 18 U.S.C.

924(c), a court should not also enhance the defendant's base

offense level for the underlying crime of violence to account

for the use of the firearm. Id.; see also U.S.S.G. 3D1.1,

comment. (n.1).

In this case, the district court treated, for

sentencing purposes, the conspiracy to commit the Alabama,

Connecticut and Maine bank robberies in Count One as three

separate counts of conspiracy to commit the three separate

bank robberies. See U.S.S.G. 1B1.2(d) ("A conviction on a

count charging a conspiracy to commit more than one offense

shall be treated as if the defendant had been convicted on a

separate count of conspiracy for each offense that the

defendant conspired to commit."). Accordingly, the court

calculated a separate base offense level for each conspiracy

and then combined these levels together to produce a single

total offense level. See U.S.S.G. 3D1.4. In calculating

the separate base offense levels for the conspiracies to

commit the Alabama and the Connecticut robberies, the

district court -- in both instances -- applied a five-level

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37

enhancement for brandishing a firearm. U.S.S.G.

2B3.1(b)(2)(C). Because the 924(c) charge related to the

Maine bank robbery, however, the district court did not apply

the brandishing enhancement when calculating the base offense

level for that conspiracy. See U.S.S.G. 2K2.4, comment.

(n.2).

Hunter contends that the district court erred in

its calculation, contending that it should not have separated

the Alabama and Connecticut robberies from the Maine robbery

in determining whether to apply the brandishing enhancement.

Hunter argues that Application Note 2 to 2K2.4 clearly

states that where the 924(c) sentence is imposed "in

conjunction with a sentence for the underlying offense" no

enhancement may be applied, and, in this case, the underlying

offense was collectively the entire conspiracy to commit the

three bank robberies. Therefore, Hunter concludes, the

district court should not have applied the brandishing

enhancement to the conspiracies to commit the Alabama and

Connecticut robberies because they were part of the

"underlying offense." We do not agree.

We decline Hunter's invitation to read the phrase

"the underlying offense" in Application Note 2 to preclude

the application of the brandishing enhancements to the

conspiracies to commit the Alabama and Connecticut robberies.

First, 1B1.2(d) clearly instructs the sentencing court to

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38

treat a count charging a conspiracy to commit multiple

offenses as separate counts of conspiracy for each offense

the defendant conspired to commit. U.S.S.G. 1B1.2(d); see

also U.S.S.G. 3D1.2, comment. (n.8). Thus, it is clear

that the Sentencing Commission does not consider, for the

purposes of applying the guidelines, a conspiracy to commit

multiple offenses as constituting one single integrated

offense.

Moreover, the district court's application of the

brandishing enhancement does not undercut the purposes of

Note 2. Application Note 2 is intended to prevent double

counting. See U.S.S.G. 2K2.4, comment. (backg'd) ("To

avoid double counting, when a sentence under this section is

imposed in conjunction with a sentence for an underlying

offense, any specific offense characteristic for explosive or

firearm discharge, use, or possession is not applied in

respect to such underlying offense."). In this case, no

double counting occurred. Hunter's conviction under 924(c)

was for using or carrying the firearm during and in relation

to the Maine robbery, and the district court carefully

eschewed applying the brandishing enhancement when

calculating the offense level for Hunter's conspiracy to

commit that offense. The court applied the brandishing

enhancement only when calculating the offense levels relating

to the Alabama and Connecticut robberies. Thus, the same

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39

conduct did not unfairly give rise to both a sentencing

enhancement and a separate mandatory sentence under 18 U.S.C.

924(c).

b. Consecutive or Concurrent Sentences

In 1988, Hunter pled guilty in Connecticut state

court to possession of cocaine with intent to sell. As a

result, he was sentenced to a term of ten years in state

prison. After serving three years, the balance of Hunter's

sentence was suspended and he was released on three years

probation. Hunter was still on probation at the time of the

Franklin robbery. Shortly after the Franklin robbery

occurred, an order charging Hunter with violation of

probation was issued, and, ultimately, on November 16, 1993,

a Connecticut state court revoked Hunter's probation and

sentenced him to seven-years imprisonment (apparently the

unexpired portion of his suspended ten-year sentence for

cocaine possession). At the time of sentencing in this case,

Hunter was serving the remainder of his Connecticut prison

term.

At Hunter's federal sentencing, the district court

ruled that his entire federal sentence should run

consecutively to his state sentence. In so ruling, the court

relied on U.S.S.G. 5G1.3(c), which provides that

the sentence for the instant offense
shall be imposed to run consecutively to
the prior undischarged term of
imprisonment to the extent necessary to

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40

achieve a reasonable incremental
punishment for the instant offense.13

The court effectively held that, because the state sentence

stemmed not just from the underlying cocaine offense but also

from the separate probation violation, the federal sentence

should run consecutively to the state sentence in order to

insure the necessary incremental punishment.

13. The district court correctly ruled that neither
5G1.3(a) or (b) governed Hunter's sentencing. In relevant
part, U.S.S.G. 5G1.3 provides:
5G1.3 Imposition of a Sentence on a Defendant

Subject to an Undischarged Term of Imprisonment

(a) If the instant offense was committed
while the defendant was serving a term of
imprisonment (including work release,
furlough, or escape status) or after
sentencing for, but before commencing
service of, such term of imprisonment,
the sentence for the instant offense
shall be imposed to run consecutively to
the undischarged term of imprisonment.

(b) If subsection (a) does not apply, and
the undischarged term of imprisonment
resulted from offense(s) that have been
fully taken into account in the
determination of the offense level for
the instant offense, the sentence for the
instant offense shall be imposed to run
concurrently to the undischarged term of
imprisonment.

(c) (Policy Statement) In any other case,
the sentence for the instant offense
shall be imposed to run consecutively to
the prior undischarged term of
imprisonment to the extent necessary to
achieve a reasonable incremental
punishment for the instant offense.

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41

On appeal, Hunter contends that, in applying

subsection (c) and sentencing Hunter to a wholly consecutive

federal sentence, the district court erred because it failed

to follow the method outlined in Application Note 3 to

5G1.3 for calculating the appropriate incremental punishment.

Note 3 provides that:

[t]o the extent practicable, the court
should consider a reasonable incremental
penalty to be a sentence for the instant
offense that results in a combined

sentence of imprisonment that

approximates the total punishment that

would have been imposed under 5G1.2

(Sentencing on Multiple Counts of
Conviction) had all of the offenses been

federal offenses for which sentences were

being imposed at the same time.

U.S.S.G. 5G1.3, comment. (n.3) (emphasis added); see also

United States v. Whiting, 28 F.3d 1296, 1210-11 (1st Cir.

1994) (plain error for sentencing court to impose federal

sentence wholly consecutive to state sentence without

attempting to compute the proper equivalent total punishment

called for by Note 3). Thus, Hunter contends that, before

sentencing him to a wholly consecutive sentence, the district

court should have calculated the sentence he would have

received if the revocation of probation and the instant bank

robbery offenses had all been federal offenses for which he

was sentenced at the same time. We disagree.

First, as noted, 5G1.3(c) instructs the district

court, in cases where it applies, to sentence defendants to

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42

consecutive sentences "to the extent necessary to achieve a

reasonable incremental punishment." Then, Application Note 3

prescribes a method for calculating the "reasonable

incremental punishment" that we have recognized applies in "a

good many of the cases likely to arise under subsection (c)."

United States v. Gondek, 65 F.3d 1, 3 (1st Cir. 1995).

Implicit in this recognition, however, is the fact that,

although the method applies in a "good many cases," it does

not cover every case. Indeed, as Application Note 3 itself

explains, the methodology it prescribes is intended only "to

assist the court in determining the appropriate sentence."

U.S.S.G. 5G1.3, comment. (n.3); cf. id. (cautioning that

method should be followed only "[t]o the extent

practicable"). Therefore, while it is evident that a

sentencing court should initially look to Note 3 for guidance

in calculating an appropriate incremental punishment, it

nonetheless has discretion to follow a different course in a

small number of cases where adherence to Note 3 would be

impracticable and result in an inappropriate incremental

punishment. See, e.g., United States v. Brassell, 49 F.3d

274, 278 (7th Cir. 1995) (court has discretion in appropriate

circumstances to disregard methodology outlined in Note 3),

United States v. Torrez 40 F.3d 84, 87 (5th Cir. 1994)(same).

In this case, the district court did not err by

following a different course. First, it is far from clear

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43

how, and if, Application Note 3 applies to the facts of this

case. None of the four detailed examples outlined in Note 3

explain how to sentence a defendant who is serving out a term

following the revocation of probation. See U.S.S.G. 5G1.3,

comment. (n.3). Moreover, the text of Note 3 instructs that

the incremental punishment should be calculated according to

the grouping rules set forth in 5G1.2. Section 5G1.2 (and

the other sections to which it refers), however, does not

discuss how to handle a sentenced imposed following a

probation revocation. The guidelines do discuss sentences

imposed for probation violations separately under U.S.S.G.

Ch. 7. Significantly, Application Note 5 to U.S.S.G. 7B1.3

instructs that

it is the Commission's recommendation
that any sentence of imprisonment for a
criminal offense that is imposed after
revocation of probation or supervised
released be run consecutively to any term

of imprisonment imposed upon revocation.

U.S.S.G. 7B1.3, comment. (n.5) (emphasis added). If

anything, Note 5 suggests that the course followed by the

district court, imposing a wholly consecutive sentence, was

correct. See Torrez, 40 F.3d at 87-88 (Section 7B1.3

suggests that -- as in this case -- notwithstanding Note 3 to

5G1.3, imposition of wholly consecutive sentence would be

appropriate in case involving a probation revocation).

Furthermore, Application Note 3 fails to explain

whether, in a situation like the present, a court should

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consider the underlying state drug conviction in calculating

the equivalent federal sentence. In his argument, Hunter

ignores the underlying drug possession and contends that Note

3 requires the court to combine only the guideline sentence

for federal probation revocation with the guideline sentence

for the instant bank robbery charges. Such an approach,

however, fails to account for the fact that, in sentencing

Hunter to the unexpired portion of his suspended ten-year

drug sentence, the state court arguably aimed to punish

Hunter for both the probation violation and the underlying

cocaine possession. Cf. United States v. Gullickson, 981

F.2d 344, 346-47 (8th Cir. 1992) (instructing sentencing

court to calculate appropriate incremental punishment by

estimating equivalent federal sentence for state forgery and

other offenses and combining that with the sentence for

instant federal offense where defendant, at the time of

sentencing, was serving state prison term following

revocation of probation imposed for state forgery conviction;

court notably did not instruct sentencing court to estimate

federal penalty for probation violation).

Finally, we note that Hunter's case is unlike the

usual situation governed by 5G1.3(c), in which the offenses

supporting the separate sentences arise from related conduct.

See Gondek, 65 F.3d at 3. In such cases (e.g., a state drug

charge and a related federal firearms charge), sentencing

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according to the grouping rules as suggested by Application

Note 3 makes much sense. In other words, when the federal

sentence arises from conduct or acts directly related to that

on which the state sentence is based, application of the

guidelines' grouping rules accords with fairness principles

inherent in the guidelines by "limit[ing] the significance of

the formal charging decision and . . . prevent[ing] multiple

punishment for substantially identical offense conduct."

U.S.S.G. Ch.3 Pt.D, intro. comment. Hunter's situation,

however, is different. The federal bank robbery convictions

arise from conduct completely unrelated to the cocaine

possession that lies at the heart of the state sentence. In

cases like Hunter's, where the acts or conduct giving rise to

the different sentences are not closely related, the

rationale of the guidelines' grouping rules does not apply.

Indeed, Hunter's situation is more "closely akin to the case

of the defendant who commits a new offense while still in

prison, the very situation in which [U.S.S.G. 5G1.3(a)]

instructs that the new sentence is to be served

consecutively." Gondek, 65 F.3d at 3.

Accordingly, we do not believe that the method for

calculating a "reasonable incremental punishment" prescribed

in Application Note 3 clearly addresses Hunter's situation.

In short, it would not have been "practicable" in light of

the inconsistencies outlined above for the district court to

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have attempted to follow Note 3, and, thus, it did not err in

failing to do so. Moreover, we do not think the court

otherwise abused its discretion in sentencing Hunter to a

wholly consecutive federal sentence. The court carefully

considered the circumstances of this case and determined that

such a sentence was necessary in order to insure a reasonable

incremental punishment for the federal bank robbery charges.

Furthermore, we believe the Sentencing Commission's

adoption in 1993 of Application Note 4 to U.S.S.G. 5G1.3

implicitly supports this conclusion. In cases where a

defendant has committed a federal offense while on probation,

Note 4 expressly limits a district court's discretion in

determining a reasonable incremental punishment by providing

that the court must order the entire federal sentence to run

consecutively to any sentence imposed upon revocation of

probation. See U.S.S.G. 5G1.3, comment. (n.4).14

14. In order to avoid any ex post facto concerns, the

district court expressly declined to rely on Application Note
4, enacted November 1, 1993 (prior to sentencing but after
the underlying criminal acts), which provides:

4. If the defendant was on federal or
state probation, parole, or supervised
release at the time of the instant
offense, and has had such probation,
parole, or supervised release revoked,
the sentence for the instant offense
should be imposed to be served
consecutively to the term imposed for the
violation of probation, parole, or
supervised release in order to provide an
incremental penalty for the violation of
probation, parole, or supervised release

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Significantly, the Sentencing Commission added Note 4 to

5G1.3 without altering in any way the language of Application

Note 3. Thus, in doing so, the Commission implicitly

recognized that, prior to the adoption of Note 4, a

sentencing court at the very least had the discretion in

cases like Hunter's (e.g., probation revocation cases) to

ignore the methodology set forth in Note 3 and order a wholly

consecutive sentence.

3. McCarthy's Sentencing Issue

Finally, McCarthy challenges the district court's

use of his seven prior state attempted-murder convictions as

a single predicate offense in determining whether he was

subject to sentencing as an armed career criminal under 18

U.S.C. 924(e). McCarthy contends that the district court

should not have considered the attempted-murder convictions

because they arose out of the same incident that gave rise to

(in accord with the policy expressed in
7B1.3 and 7B1.4).

U.S.S.G. 5G1.3, comment. (n.4). We also find it
unnecessary to rely on Note 4, and, thus, do not consider
whether it poses any significant ex post facto concerns.

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a "non-qualifying" bank larceny conviction.15 We do not

agree.

As the government explains, the sentencing court

did not count the larceny conviction as a separate predicate

offense, but instead counted only the state attempted-murder

convictions (and the court counted those only as a single

predicate offense). Thus, the district court did not

consider an arguably non-qualifying predicate offense (i.e.,

the bank larceny conviction) in determining whether it should

sentence McCarthy as an armed career criminal. McCarthy's

implicit contention that, whenever the same conduct gives

rise to both qualifying and non-qualifying convictions, a

sentencing court may consider neither in determining whether

defendant qualifies as an armed career criminal is completely

without logic or support. Accordingly, McCarthy's complaint

lacks merit.

III.
III.

Conclusion
Conclusion

For the foregoing reasons, we affirm.
affirm

15. 18 U.S.C. 924(e) provides, inter alia, that an

individual shall be sentenced as an armed career criminal if
he or she has violated 18 U.S.C. 922(g) (unlawful
possession of a firearm) and has three previous convictions
by any court for a violent felony, serious drug offense or
both, committed on occasions different from one another. In
this case, the district court held that McCarthy's federal
bank larceny conviction did not qualify as a violent felony.
We have no need to review that decision.

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