United States v. Richardson

United States Court of Appeals
For the First Circuit

No. 06-2506

UNITED STATES OF AMERICA,

Appellee,

v.

MELVIN RICHARDSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,
and Gelpí,* District Judge.

Matthew V. Soares, with whom Melvin Richardson, pro se, was on
brief, for appellant.
Vijay Shanker, Attorney, United States Department of Justice,
with whom Paul Hart Smyth, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.

February 8, 2008

*
Of the District of Puerto Rico, sitting by designation.
 GELPÍ, District Judge. On August 11, 2005, a federal

grand jury in the District of Massachusetts returned a superseding

indictment charging Melvin Richardson with four counts. The first

three counts charge Richardson with possession with the intent to

distribute cocaine base (Counts One and Three) or cocaine (Count

Two) in violation of 21 U.S.C. § 841(a)(1). Count Four charges

Richardson with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Counts One and Two arose out

of a September 25, 2003 traffic stop. Counts Three and Four arose

out of an October 30, 2003 firearms-for-drugs deal in which

Richardson provided the drugs in exchange for the firearms. On

March 31, 2006, a jury convicted Richardson on all four counts.

The district court sentenced him to a 216-month term of

imprisonment on each count, all terms to be served concurrently.

Richardson now appeals his conviction and sentence. He

argues that the district court erred in refusing to sever Counts

One and Two from Counts Three and Four and in admitting extrinsic

evidence of an alleged prior inconsistent statement. In a pro se

brief, Richardson raises three additional arguments: (1) that the

district court erroneously denied his motion to suppress the drugs

seized during the September 25th inventory search of his vehicle;

(2) that the district court erred in sentencing him as a career

offender and as an armed career criminal; and (3) that the district

court erroneously failed to determine whether sentencing entrapment

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or sentencing factor manipulation had occurred. After carefully

reviewing the record, we affirm Richardson’s conviction and

sentence.

I. Background

We summarize here the relevant facts evidenced in the

record, saving additional details for our analysis. Throughout

this opinion, we state the facts in the light most favorable to the

verdict. United States v. Fenton, 367 F.3d 14, 17 (1st Cir. 2004).

A. September 25, 2003 Arrest

On September 25, 2003, State Police Trooper Sean Maher

observed a gray Nissan automobile rapidly accelerate while changing

from the right to the left travel lane of northbound Route 91 in

Northhampton, Massachusetts. He followed the car for over half a

mile and clocked its speed at between eighty and eighty-two miles

per hour.

Maher pulled the vehicle over and asked Richardson, the

vehicle’s sole occupant, to produce his license and registration.

Richardson could not produce a valid license because it had been

revoked in April 2003. Without a valid license, Richardson could

not legally operate his vehicle, and his vehicle could not remain

on the highway. Maher, therefore, radioed for a tow truck to

remove the vehicle. He also radioed for assistance.

State Police Trooper David Nims arrived to assist. After

informing Richardson that his license had been revoked, which

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Richardson acknowledged, the troopers ordered him to exit the

vehicle. Richardson complied and waited on the highway guardrail.

Nims then began an inventory search of the vehicle.

Upon entering the vehicle, Nims told Maher that it smelled of burnt

marijuana. Richardson informed the troopers that he had smoked

marijuana in the vehicle earlier that day and on other occasions.

The troopers found several marijuana roaches in the ashtray. Nims

discovered a plastic bag containing what appeared to be cocaine

powder in smaller plastic baggies under the driver’s side rear

floor mat. Maher then lifted the passenger’s side rear floor mat

and located another plastic bag. That bag held several tied-off

baggies containing what appeared to be cocaine base. Nims also

found under the driver’s side front floor mat a glass receptacle

containing marijuana. The troopers found no other drug

paraphernalia in the vehicle. Based on their training and

experience, the troopers determined that the apparent cocaine and

cocaine base were packaged for distribution.

The troopers placed Richardson under arrest and

transported him to the police barracks. At the barracks,

Richardson waived his Miranda rights. He volunteered that the

substances were cocaine and cocaine base but denied that he was a

drug dealer. He told the troopers that he was transporting the

drugs to the Northampton Wal-Mart where he was supposed to meet a

person from Vermont who would give him money for the drugs.

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Richardson also stated that he transported drugs in this manner

every other day.

Crime lab testing confirmed that one bag contained 5.02

grams of cocaine powder in nine twist-tied plastic bags and that

the other bag contained 12.84 grams of cocaine base in twenty-nine

twist-tied plastic bags. Expert witness John Baron, a Drug

Enforcement Administration (“DEA”) Special Agent, testified that,

based on the quantity and packaging of the drugs, both the cocaine

and cocaine base removed from Richardson’s vehicle were consistent

with retail distribution rather than personal use.

Richardson was charged with drug offenses in

Massachusetts state court and released on bail.

B. October 30, 2003 Arrest

In September 2003, Rashiid Mapp, a cooperating witness

and paid confidential informant for the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (“ATF”), told ATF Special Agent James

Martin that he knew Richardson. Mapp described Richardson as a

multi-ounce cocaine base dealer who frequently used a residence on

Oak Grove Avenue in Springfield, Massachusetts to conduct his

business. Mapp also told Martin that Richardson, in furtherance of

his drug dealing, carried an older firearm that he wanted to

replace. Based on Mapp’s information, Martin began investigating

Richardson. Martin learned that Richardson was a convicted felon

and, consequently, was prohibited from carrying a firearm. On

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October 14, 2003, Martin surveilled Richardson and saw him enter

the Oak Grove Avenue residence.

Martin arranged for Mapp to present Richardson with the

opportunity to exchange cocaine for two firearms supplied by a

fictitious person from Vermont. On October 15, 2003, Mapp

telephoned Martin; Mapp was with Richardson at the time he placed

the call. During the conversation, the three men arranged a

firearms-for-drugs deal between Martin and Richardson. Through

Mapp, Richardson stated he was looking for two nine-millimeter

handguns in exchange for an ounce of cocaine base. The tape

recording of the October 15th phone call reflects that Richardson

said: “Nines, get a couple of nines;” “He can get me the baby nine

and a regular nine;” “I’m ready right now;” and “Tell him, listen,

tell him to bring two nines. I’m gonna take both of them.”

Richardson then agreed with Martin to trade one ounce of cocaine

base for two nine-millimeter handguns.

Martin arranged a meeting between Mapp, Richardson, and

Special Agent Malcolm Van Alstyne of the ATF. Van Alstyne would

play the role of the Vermont firearms supplier. The meeting,

originally scheduled for October 23, 2003, eventually took place on

October 30, 2003. During the meeting, Richardson gave Van Alstyne

the cocaine base. Van Alstyne passed the two firearms to

Richardson and then handed him a shirt in which to wrap them. Van

Alstyne then exited the vehicle, ostensibly to put the cocaine base

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in the trunk and to get bullets for Richardson. Richardson and

Mapp also exited the vehicle. At that point, Van Alstyne gave the

arrest signal, and agents arrested Richardson as he stood outside

the vehicle holding the firearms. Agents also staged a mock arrest

of Mapp in order to conceal his identity as a confidential

informant. Crime lab testing later revealed that the narcotics

Richardson gave to Van Alstyne contained 26.4 grams of cocaine

base.

After the arrest, Martin and DEA Agent John Barron

interviewed Richardson, who waived his Miranda rights and agreed to

speak with the agents. Richardson told the agents that the

firearms were for Mapp, not for him; he admitted that the cocaine

base belonged to him. Richardson expressed a desire to cooperate

with the government but stated that he could not reveal his drug

supplier at that time. When asked again about the firearms,

Richardson stated, “[T]hose guns were for ATF. They weren’t for

me.”1 Agents expressed disbelief in his statements and confronted

him with the telephone recordings in which he talked about wanting

the firearms.

At that point, Richardson became upset and evasive. The

agents, therefore, decided to wait until a later time to do the

interview and terminated the interrogation. The next day, Martin

1
At the time, Richardson did not know Mapp’s name. He knew
him by his nickname, “ATF.”

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and DEA task force detective Norman Shink of the Springfield Police

Department advised Richardson of his Miranda rights and resumed the

interview. In an effort to cooperate with law enforcement,

Richardson named four or five people involved in the drug trade in

the area.

C. Pretrial

Prior to trial, Richardson moved to suppress the drug

evidence seized during the September 25th traffic stop and to sever

Counts One and Two from Counts Three and Four for trial purposes.

Richardson contended that the September 25th search of his vehicle

violated his Fourth Amendment rights. Regarding severance, he

argued that joinder was improper and prejudicial. He stated that

a joint trial would force him to cede his Fifth Amendment right

against self-incrimination with respect to Counts One and Two in

order to exercise his Sixth Amendment right to testify as to Counts

Three and Four. Richardson offered an affidavit summarizing the

testimony he had to give regarding his entrapment defense to Counts

Three and Four. Following a hearing, the district court denied the

motion to sever, concluding that “everything is going to come in at

the trial in any event” and “severance of these charges wouldn’t

really accomplish anything.” The district court also denied the

motion to suppress, holding that the search Troopers Nims and Maher

performed comported with the Massachusetts State Police inventory

search policy and the Fourth Amendment.

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D. Trial

Trial on all four counts commenced on March 23, 2006.

During the trial, the district court admitted two certified prior

convictions into evidence as part of the government’s case. The

district court admitted these convictions to satisfy the predicate

offense requirement for Count Four—the felon in possession of a

firearm charge. DEA Agent Barron testified that one conviction was

for assault and battery, which carries a potential penalty of more

than one year of imprisonment in Massachusetts. The other

conviction was for assault with a dangerous weapon (a knife), which

also carries a potential penalty of more than one year of

imprisonment in Massachusetts.2

Richardson presented his case through cross-examining the

government’s witnesses, presenting his own testimony, and producing

his medical records. While on the stand, Richardson explained the

factual details of his entrapment defense. He testified regarding

his history of substance abuse, his relationship with Mapp, the

specifics of the firearms-for-drugs deal, and how Mapp allegedly

trapped him into participating in the deal. He testified that he

just went along with Mapp’s plan and that he had no need for the

2
A review of the records reveals no evidence that Richardson
offered to stipulate to the existence of an earlier felony
conviction. Cf. Old Chief v. United States, 519 U.S. 172, 190-91
(1997) (limiting government’s ability to present proof regarding
nature of prior conviction when defendant stipulates to fact of
prior conviction).

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firearms. He explained that he had only pretended to be a “Big

Willie,” a high-level drug dealer, and insisted that the firearms

were actually for Mapp.

The government permissibly sought to impeach Richardson’s

credibility by revealing three of his prior convictions. The

district court admitted the following three convictions for

impeachment purposes: (1) a 1996 conviction for larceny from a

building; (2) a 2001 conviction for possessing a dangerous weapon

(a knife); and (3) a 1999 conviction for giving a false name. The

judge immediately provided a limiting instruction indicating that

the jury should only consider these prior convictions for purposes

of assessing Richardson’s credibility.

The government also sought to impeach Richardson’s

testimony that he did not want the two firearms for himself. The

prosecutor offered a tape recording and written transcript of an

October 22, 2003 telephone conversation. Richardson’s counsel

objected because the judge had previously excluded this evidence.3

The judge eventually admitted the tape and transcript for

impeachment purposes. The judge admitted the evidence because:

(1) the jury could interpret the vast majority of the conversation

as inconsistent with Richardson’s testimony; (2) admission of only

3
Prior to trial, Richardson filed a motion in limine seeking
to exclude evidence of the October 22nd phone call. The district
granted the motion, reasoning that the government failed to
presented sufficient evidence of Mapp’s consent to the recording.

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part of the tape would confuse the jury; and (3) parts of the tape

included potentially exculpatory information. Immediately, the

judge instructed the jury regarding the limited purpose for which

it could consider the telephone call.

After the close of evidence, the judge instructed the

jury. He once again explained to the jurors the limited purposes

for which they could consider Richardson’s predicate felonies, his

other prior convictions, and the recording and transcript of the

October 22nd telephone conversation. He repeatedly reminded the

jury to consider each count separately. His presentation also

included an instruction on the entrapment defense applicable to

Counts Three and Four. The jury rejected Richardson’s entrapment

defense and returned a guilty verdict on each of the four counts.

II. Analysis

We shall address Richardson’s arguments seriatim.

A. Severance

Richardson contends that the district court abused its

discretion in denying his motion to sever Counts One and Two (the

September 25th drug-related offenses) from Counts Three and Four

(the October 30th drug and firearm-related offenses). Richardson

asserts that the joint trial of the September 25th counts with the

October 30th counts caused him substantial prejudice with regard to

the earlier counts. He argues that joinder of the offenses

prejudiced him because he was forced to testify to his detriment

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regarding the September 25th charges. He also asserts that the

joinder prejudiced him because the court admitted prior crime

evidence that was admissible for some counts but inadmissible for

others. He seeks a new trial on Counts One and Two only; he does

not argue that the joinder prejudiced him with respect to Counts

Three and Four. The government responds that Richardson suffered

no prejudice because substantially the same evidence would have

been admitted in both trials and severance would have contravened

the interest in judicial economy and the conservation of

prosecutorial resources.

Richardson does not contest the propriety of the initial

joinder of all the offenses. See Fed. R. Crim. P. 8(a) (permitting

joinder of offenses of same or similar character). Rather, he

argues that Rule 14 of the Federal Rules of Criminal Procedure,

which permits relief from prejudicial joinder, entitled him to

severance of the joined counts. See Fed. R. Crim. P. 14(a). On

appeal, we consider whether the denial of severance unduly

prejudiced him.

The question of whether joinder of offenses unduly

prejudices a defendant is addressed to the district court’s sound

discretion. United States v. Casas, 425 F.3d 23, 36 (1st Cir.

2005), cert. denied, 547 U.S. 1061 (2006); United States v. Alosa,

14 F.3d 693, 694-95 (1st Cir. 1994); see also United States v.

Fenton, 367 F.3d 14, 22 (1st Cir. 2004) (“Severance on the ground

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of undue prejudice is a judgment call and, thus, is a matter

committed to the trier’s informed discretion.”) We reverse a

refusal to sever only upon a showing of manifest abuse of

discretion. United States v. Burgos, 254 F.3d 8, 13 (1st Cir.

2001); Alosa, 14 F.3d at 694-95. Rarely has this Court found an

abuse of discretion sufficient to warrant reversal. See United

States v. Diallo, 29 F.3d 23, 27 (1st Cir. 1994); United States v.

Scivola, 766 F.2d 37, 41 (1st Cir. 1985). But see United States v.

Jordan, 112 F.3d 14, 17 (1st Cir. 1997) (granting severance where

joinder likely eviscerated defendant’s planned defense).

Rule 14 provides: “If the joinder of offenses . . . for

trial appears to prejudice a defendant . . ., the court may order

separate trials of counts . . . .” Fed. R. Crim. P. 14(a)

(emphasis added). We must affirm the district court’s denial of a

motion to sever unless the defendant makes a strong, see United

Sates v. Edgar, 82 F.3d 499, 503 (1st Cir. 1996), and convincing,

United States v. Vega Molina, 407 F.3d 511, 531 (1st Cir. 2005),

showing of prejudice. Some prejudice results in almost every trial

in which the court tries more than one offense together. Burgos,

254 F.3d at 13-14. Garden variety prejudice, however, will not, in

and of itself, warrant severance. Id. at 14. The defendant must

demonstrate that the prejudicial joinder likely deprived him of a

fair trial. Id.; see also United States v. Baltas, 236 F.3d 27, 33

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(1st Cir. 2001) (noting reversal only appropriate where defendant

makes “strong showing of evident prejudice”).

Three types of prejudice may result from trying a

defendant for several offenses during the same trial:

(1) the defendant may become
embarrassed or confounded in presenting
separate defenses; (2) proof that defendant is
guilty of one offense may be used to convict
him of a second offense, even though such
proof would be inadmissable in a second trial
for the second offense; and (3) a defendant
may wish to testify in his own behalf on one
of the offenses but not another, forcing him
to choose the unwanted alternative of
testifying as to both or testifying as to
neither.

Jordan, 112 F.3d at 16.

With regards to the third type of prejudice, this Court

has held that “a defendant may deserve a severance of counts where

[he] makes ‘a convincing showing that he has both important

testimony to give concerning one count and strong need to refrain

from testifying on the other.’” Alosa, 14 F.3d at 695 (emphasis

added) (quoting Scivola, 766 F.2d at 43). The defendant must offer

sufficient information so that the court can weigh “‘the

considerations of judicial economy’ against the defendant’s

‘freedom to choose whether to testify’ as to a particular charge.”

Id. (quoting Scivola, 766 F.2d at 43).

In this case, we conclude that Richardson has failed to

make the strong showing of prejudice required to justify severance.

Before the district court, Richardson attempted to frame his

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severance argument in terms of the third type of prejudice. He

highlighted the “important testimony” he had to give regarding his

entrapment defense, which applied only to Counts Three and Four.

He explained that he could not present his entrapment defense

without testifying regarding the details of the trap. Richardson

did not, however, adequately explain his “strong need” to refrain

from testifying on Counts One and Two. Before the district court,

he did not articulate how his testimony might aid the government in

obtaining a conviction on those charges. Moreover, even with the

benefit of hindsight, he does not argue on appeal that any of the

testimony actually elicited from him at trial aided the government

in obtaining convictions on Counts One and Two.

Instead, Richardson’s argument before the district court,

and renewed on appeal, was that he would be severely prejudiced by

the admission of incriminating evidence that would not have

otherwise been admissible in a severed trial at which he did not

testify as to Counts One and Two. Specifically, he argued that the

evidence of the October 30th events, which form the basis for

Counts Three and Four, would not have been admitted in such a

severed trial on Counts One and Two. This argument is based on a

theory of evidentiary spillover, the second type of prejudice

outlined in Jordan. When such spillover serves as the ground for

a defendant’s severance motion, this Court has repeatedly refused

to overrule a denial of severance if substantially the same

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evidence would have been admitted in separate trials. See Burgos,

254 F.3d at 14; United States v. Stackpole, 811 F.2d 689, 693-94

(1st Cir. 1987); United States v. O’Connell, 703 F.2d 645, 649 (1st

Cir. 1983); accord United States v. Freeman, 6 F.3d 586, 598 (9th

Cir. 1993).

Here, the district court correctly concluded that,

irrespective of whether Richardson testified, the conduct

underlying the October 30th firearms-for-drugs deal would have been

admissible to demonstrate, at a minimum, Richardson’s knowledge of

and intent to distribute drugs on September 25th. See Fed. R.

Evid. 404(b) (allowing admission of other bad acts evidence to

prove motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident). Counts One and Two

charged Richardson with possessing cocaine base and cocaine,

respectively, with the intent to distribute on September 25th. He

defended Counts One and Two by claiming that he lacked the

requisite intent to distribute; he testified that he was merely

driving somewhere with the drugs to get high with friends.

Evidence that, fewer than five weeks after his September 25th

arrest, Richardson provided the cocaine base for and received the

weapons in the firearms-for-drugs deal rebuts his lack of intent

defense. See United States v. Landrau-Lopez, 444 F.3d 19, 24 (1st

Cir. 2006) (holding testimony regarding prior drug-related

activities probative of knowledge and intent); United States v.

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Nickens, 955 F.2d 112, 124-25 (1st Cir. 1992) (deeming evidence of

prior drug convictions admissible to show knowledge and intent);

see also United States v. Acosta, 67 F.3d 334, 339 (1st Cir. 1995)

(noting drug dealing often associated with access to weapons); cf.

United States v. White, 356 F.3d 865, 870 (8th Cir. 2004)

(recognizing correlation between drug dealing and weapons); United

States v. Hopkins, 310 F.3d 145, 151 (4th Cir. 2002) (accepting

expert testimony describing possession of small caliber weapon as

indicia of drug dealing); United States v. Ward, 171 F.3d 188, 195

(4th Cir. 1999) (noting admission of handguns into evidence in drug

cases consistently upheld as relevant to issues raised by such

cases). To defend himself against Count One, Richardson denied

that the twenty-nine baggies found under his rear floor mat on

September 25th contained cocaine base. He testified that he

believed the substance to be rock cocaine. The fact that

Richardson knowingly provided cocaine base for the October 30th

transaction is probative of his knowledge that the twenty-nine

baggies seized on September 25th contained cocaine base.4 See

Landrau-Lopez, 444 F.3d at 24; Nickens, 955 F.2d at 124-25.

Rule 404(b) would also have permitted admission of the

conduct underlying the September 25th drug counts in a separate

trial on Counts Three and Four to prove Richardson’s knowledge of

4
Laboratory testing revealed that the twenty-nine baggies, in
fact, contained cocaine base.

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and intent to distribute drugs and to rebut his entrapment defense.

See Fed. R. Evid. 404(b); see also United States v. Smith, 292 F.3d

90, 99-100 (1st Cir. 2002) (deeming evidence of drug dealing

relevant to show motive or knowing possession of a firearm);

Acosta, 67 F.3d at 339 (recognizing probative value of prior drug-

related offenses to prove predisposition to possess firearm).

Additionally, we note that the district judge limited any

prejudice that might result from admission of other crime evidence

by instructing the jury to consider the evidence separately as to

each count. See United States v. Baltas, 236 F.3d 27, 34 (1st Cir.

2001) (noting appropriate limiting instruction provides adequate

safeguard against evidentiary spillover prejudice).

On appeal, Richardson raises an additional prejudice

argument, which he failed to articulate before the district court.

He avers that he suffered prejudice because the jury heard evidence

regarding his prior criminal convictions. Richardson specifically

argues that this evidence, used to prove the “felon” element of

Count Four and to impeach his credibility, would have been

inadmissible against him in a separate trial on Counts One and Two

in which he chose not to testify.5

5
We note that the government presented two felony convictions
as a basis for Count Four when only one was necessary. Richardson,
however, did not argue in the district court, nor before us, that
this aggravated any prejudice towards him. We will not address
issues not properly raised. Esso Standard Oil Co. v. Rodriguez-
Perez, 455 F.3d 1, 6 (1st Cir. 2006), cert. denied, 127 S. Ct. 960
(2007); United States v. Marshall, 109 F.3d 94, 99 (1st Cir. 1997).

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 Because Richardson failed to articulate this argument

before the district court, he has not properly preserved it. See

Scivola, 766 F.2d at 43 (holding that defendant has burden of

presenting district court with “enough information” to demonstrate

prejudice); Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.

1988) (“[A] litigant has an obligation to spell out its arguments

squarely and distinctly, or else forever hold its peace.” (internal

quotation marks and citation omitted)). Accordingly, we review

only for plain error the district court’s failure to order

severance on this ground sua sponte. See Fed. R. Crim. P. 52(b);

see also United States v. Thomann, 609 F.2d 560, 564 (1st Cir.

1979). We find no such error for two reasons.

First, the district court took appropriate measures to

limit any prejudice by giving thorough and accurate limiting

instructions. See Burgos, 254 F.3d at 15 n.4 (noting flexibility

Rule 14 grants district court to minimize prejudice); see also

Baltas, 236 F.3d at 34 (acknowledging jury instructions as

appropriate method of minimizing prejudice). During the

presentation of evidence and during the closing charge, the judge

repeatedly instructed the jury regarding the limited purposes for

which it could consider all the prior convictions.

Second, the government presented an exceedingly strong

case with respect to Counts One and Two. We doubt that the

admission of the prior conviction evidence influenced the verdicts

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on those counts. See United States v. Adams, 375 F.3d 108, 113

(1st Cir. 2004) (affirming conviction notwithstanding evidentiary

error where government presented overpowering and untainted

evidence of guilt); United States v. Collins, 60 F.3d 4, 7-8 (1st

Cir. 1995) (deeming error non-prejudicial where court gave

appropriate limiting instructions and government presented

overwhelming evidence of guilt).

Richardson has not made the strong showing of unfair

prejudice required to warrant severance. Having thoroughly

reviewed the record in this case and the applicable case law, we

are satisfied that the district court did not manifestly abuse its

discretion in denying Richardson’s motion for severance.

B. Prior Inconsistent Statement

Richardson contends that the district court erroneously

admitted for impeachment purposes a suppressed tape recording and

transcript of a telephone conversation between Richardson and Mapp.

The court erred in admitting the telephone conversation, he argues,

because the government failed to make a sufficient showing that

Richardson’s trial testimony actually conflicted with statements he

made during the telephone conversation. The government responds

that Richardson’s testimony directly conflicted with his phone

statements and that even if error occurred, it was harmless.

In an October 22, 2003 telephone conversation with Mapp,

Richardson stated, “I want it” and “I’ll take it,” in reference to

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a firearm. During trial, Richardson repeatedly testified that he

took possession of the firearms temporarily as a middleman before

handing them over to Mapp. He denied taking possession of the

firearms for his personal use. The government sought to cross-

examine Richardson about the inconsistencies between his trial

testimony and his statements during the October 22nd telephone

conversation. The district court agreed that Richardson’s

telephone statements and trial testimony were inconsistent and

permitted the government to impeach him with his prior statements.

On redirect, Richardson had the opportunity to clarify the meaning

of his October 22nd statements to Mapp.

We review the district court’s admission of Richardson’s

prior statement for abuse of discretion. United States v. Garcia,

452 F.3d 36, 38 (1st Cir. 2006) (noting appeals court typically

reviews evidentiary rulings for abuse of discretion).

The government generally may use otherwise inadmissible

evidence in order to impeach a testifying criminal defendant. See

United States v. Morla-Trinidad, 100 F.3d 1, 4 (1st Cir. 1996);

Williams v. Poulos, 11 F.3d 271, 287 (1st Cir. 1993); see also

Walder v. United States, 347 U.S. 62, 64-65 (1954) (holding

illegally obtained evidence admissible for impeachment purposes).

One method of impeachment is through the use of a prior

inconsistent statement. See Fed. R. Evid. 613; United States v.

Meserve, 271 F.3d 314, 320 (1st Cir. 2001). Rule 613 “applies

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when two statements, one made at trial and one made previously, are

irreconcilably at odds.” United States v. Winchenbach, 197 F.3d

548, 558 (1st Cir. 1999). Statements, however, need not be

directly contradictory in order to be deemed inconsistent. Udemba

v. Nicoli, 237 F.3d 8, 18 (1st Cir. 2001); see also United States

v. Winter, 663 F.2d 1120, 1154 (1st Cir. 1981) (admitting statement

despite finding it “ambiguous at best”); United States v. Barrett,

539 F.2d 244, 254 (1st Cir. 1976) (noting contradiction need not be

“in plain terms” and requiring “some indication” that statement

differed from trial testimony). It lies within the sound

discretion of the district court to determine whether an

inconsistency exists. United States v. DeSimone, 488 F.3d 561, 572

(1st Cir. 2007); Udemba, 237 F.3d at 18.

Richardson posits that the judge should not have admitted

the telephone conversation because his trial testimony does not

“unambiguously” conflict with his statements in the telephone

conversation. We can find no case holding that a prior statement

must “unambiguously” conflict with the trial testimony. Moreover,

First Circuit precedent makes clear that statements need not be

directly contradictory to qualify as inconsistent. See, e.g.,

Udemba, 237 F.3d at 18. The statements at issue in this case,

fairly read, are sufficiently at odds to be deemed inconsistent.

Accordingly, the district court did not abuse its sound discretion

in admitting the telephone conversation.

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C. Pro Se Arguments

In his pro se brief, Richardson raises three additional

and unpersuasive arguments. First, he challenges the district

court’s denial of his motion to suppress the drugs seized during

the September 25, 2003 inventory search of his vehicle. Richardson

contends that police impermissibly searched under the floor mats

during their vehicle inventory search. The Fourth Amendment

permits a warrantless inventory search if the search is carried out

pursuant to a standardized policy. See Florida v. Wells, 495 U.S.

1, 3-4 (1990); see also United States v. Hawkins, 279 F.3d 83, 85-

86 (1st Cir. 2002) (noting written policy not required and

accepting officers’ testimony as proof of contours of policy).

Troopers Maher and Nims testified that the Massachusetts State

Police written inventory policy requires a search of all interior

areas of a vehicle, including floor areas and all unlocked

containers; that the floor area includes the area under floor mats;

and that officers usually look under floor mats during an inventory

search. Richardson offered no evidence to rebut Nims’s and Maher’s

testimony. We conclude, therefore, that the district court did not

commit clear error in finding that the relevant inventory search

policy permitted the troopers to search under the floor mats. See

Hawkins, 279 F.3d at 85-86 (reviewing for clear error district

court’s determination regarding whether law enforcement officials

conducted inventory search pursuant to standardized procedures).

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 Second, Richardson argues that the district court

violated his Sixth Amendment right to trial by jury by applying

career offender and armed career criminal enhancements to his

sentence without requiring the government to prove his prior

convictions to a jury beyond a reasonable doubt. Supreme Court

precedent forecloses Richardson’s argument. The Supreme Court has

held that, for sentencing enhancement purposes, the government need

not prove to a jury beyond a reasonable doubt the fact of a prior

conviction. See Almendarez-Torres v. United States, 523 U.S. 224,

248 (1998); see also United States v. Duval, 496 F.3d 64, 80 (1st

Cir. 2007) (holding failure to plead and prove prior convictions to

jury does not invalidate, on statutory or constitutional grounds,

armed career criminal sentences), cert. denied, 76 U.S.L.W. 3347

(U.S. Jan. 7, 2008) (No. 07-7968). This court remains committed to

follow Almendarez-Torres unless it is expressly overruled. See,

e.g., United States v. Palacios, 492 F.3d 39, 44 (1st Cir. 2007),

cert. denied, 128 S. Ct. 547 (2007); United States v. Godin, 489

F.3d 431, 434 & n.3 (1st Cir. 2007); United States v. Roberson, 459

F.3d 39, 55 n.11 (1st Cir. 2006), cert. denied, 127 S. Ct. 1261

(2007); United States v. Jimenez-Beltre, 440 F.3d 514, 520 (1st

Cir. 2006) (en banc), overruled on other grounds by United States

v. Rita, 127 S. Ct. 2456 (2007); see also Shepard v. United States,

544 U.S. 13, 24-26 (2005) (acknowledging continuing validity of

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Almendarez-Torres holding). Richardson presents no basis on which

to disturb his sentence.

Finally, Richardson claims that the government committed

sentencing entrapment or sentencing factor manipulation by ensuring

the firearms he attempted to acquire had traveled in interstate

commerce, thereby exposing him to federal prosecution. He asserts

that this alleged entrapment or manipulation entitled him to a

downward departure under the federal sentencing guidelines. See

U.S.S.G. § 2D1.1 cmt. nn. 12 & 14.6

Richardson waived his downward departure argument by

failing to raise it before the district court. See United States

v. Delgado, 288 F.3d 49, 57 (1st Cir. 2002) (declining to consider

departure claim not raised in district court); see also United

States v. Piper, 35 F.3d 611, 620 n.6 (1st Cir. 1994) (“[A]rguments

not squarely presented to the sentencing court cannot debut as of

right in an appellate venue.”). Even if he properly raised his

downward departure argument, the district court’s discretionary

refusal to depart is “[generally] unreviewable” unless based on an

erroneous understanding that it lacks legal authority to consider

a departure or some other error of law. Godin, 489 F.3d at 437

(noting appeals court lacks jurisdiction to review discretionary

6
We assume without deciding that application notes 12 and 14,
which pertain to drug offenses, apply to analogous firearms-related
offenses. See United States v. Montoya, 62 F.3d 1, 5 (1st Cir.
1995) (acknowledging potential applicability of application note 14
in analogous circumstance not explicitly mentioned in note).

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decision not to depart unless district court committed legal

error); United States v. Sanchez, 354 F.3d 70, 76 (1st Cir. 2004)

(recognizing limited exceptions to rule prohibiting review of

sentencing court’s departure decisions); United States v. Mejia,

309 F.3d 67, 70 (1st Cir. 2002) (“[W]e review de novo a district

court’s determination of its authority to depart, but lack

jurisdiction to review a discretionary decision not to depart from

the Sentencing Guidelines.”). Richardson does not and cannot argue

that the district court based its decision on a belief that it

lacked legal authority to depart or otherwise committed an error of

law. The district court’s refusal to downwardly depart, therefore,

is unreviewable.7

Richardson’s more general sentencing manipulation claim,

which we may review, fails. See Montoya, 62 F.3d at 4 (“[W]here a

defendant wants to argue that there has occurred a sentencing

manipulation amounting to ‘extraordinary misconduct,’ we think that

the claim need not be limited to a request for a discretionary

departure, that it applies to statutory mandatory minimums as well

as to guideline ranges, and that it is subject to appellate

review.”) Sentencing factor manipulation occurs when authorities

7
The Supreme Court’s decision in United States v. Booker, 543
U.S. 220, 261 (2005), also forecloses Richardson’s challenge to his
sentence. We review a sentence under the now advisory sentencing
guidelines for reasonableness. See Jimenez-Beltre, 440 F.3d at
519. We cannot conclude that Richardson’s already below guidelines
sentence is unreasonable.

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“venture outside the scope of legitimate investigation and engage

in extraordinary misconduct that improperly enlarges the scope or

scale of the crime.”8 United States v. Sanchez-Berrios, 424 F.3d

65, 78-79 (1st Cir. 2005) (quoting United States v. Barbour, 393

F.3d 82, 86 (1st Cir. 2004)), cert. denied, 546 U.S. 1125 (2006).

The record contains no evidence that the parties agreed upon the

source of the firearms as part of the deal. The record is also

devoid of evidence that the government overbore Richardson’s will

to purchase only local firearms and forced him to purchase firearms

that had traveled in interstate commerce. Accordingly, Richardson

has failed to show that the government engaged in extreme

misconduct constituting sentencing manipulation.

III. Conclusion

For the reasons explained above, we affirm Richardson’s

conviction and sentence.

Affirmed.

8
The “extraordinary misconduct” standard is very high “because
we are talking about a reduction at sentencing, in the teeth of a
statute or guideline approved by Congress, for a defendant who did
not raise or did not prevail upon an entrapment defense at trial.”
Montoya, 62 F.3d at 4. Sentencing factor manipulation is present
only in an “extreme and unusual case,” for example a case involving
“outrageous or intolerable pressure” or “illegitimate motive on the
part of the agents.” Id.

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