United States v. Brame

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 07-1833

UNITED STATES,

Appellee,

v.

STEVEN G. BRAME,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Howard and Selya, Circuit Judges
and Stafford,* Senior District Judge.

Mark Diamond on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.

July 11, 2008

*
Of the Northern District of Florida, sitting by designation.
 Stafford, Senior District Judge. The appellant, Steven

G. Brame ("Brame"), appeals from his conviction and sentence in

this drug and firearms case. We affirm.

I. BACKGROUND

On the evening of May 6, 2006, the shift manager at a

McDonald's restaurant in Portland, Maine, called 911 to report that

he had just witnessed what he believed was a drug transaction in

the men's bathroom at the restaurant. He described one of the men

as white, with a handlebar mustache and wearing a jean jacket; the

other he described as black, wearing a blue T-shirt, baggy jeans,

and a gold chain.

Responding quickly to the shift manager's call to law

enforcement, two police officers approached the restaurant as a

black man matching the shift manager's description was seen leaving

the premises. After speaking briefly with the shift manager, the

officers located the suspect as he emerged from a nearby

convenience store. Introducing themselves, the officers explained

that they were investigating a drug transaction that had been

observed minutes earlier in the restaurant. Acting "very nervous

and fidgety," looking all around but never making eye-contact with

the officers, the suspect admitted that he had been in the bathroom

at McDonald's. He explained that he was there with his boss and

that the two had exchanged money for some work that one of them had

done for the other. When the officers asked about the nature of

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the work, the suspect "clammed up."

The suspect pulled a wallet from his pocket after the

officers asked for identification. As he did so, one of the

officers saw and grabbed a pocket knife that was also in the

suspect's pocket. Fearing that the suspect might try to run, the

officers asked the suspect to sit down on the steps leading into

the convenience store. Seated, the suspect continued to fumble

through his wallet looking for identification, ultimately producing

an identification card in the name of Steven Brame.

Asked by the officers if he had any contraband, drugs,

weapons, needles, or similar items in his possession, Brame

responded in the negative. Continuing to appear nervous and

animated, Brame repeatedly put his hands in the pockets of his

baggy jeans despite instructions to the contrary. Concerned that

Brame might have a weapon, the officers asked Brame to turn his

pockets inside out. Brame responded by pulling a small portion of

his pockets out. He did not, however, empty his pockets.

At some point, Brame stood up. As he did so, the

officers could see by the sway of his pants that Brame had a heavy

object in one of his pockets. The officers immediately told Brame

to put his hands behind his back. Brame refused to comply and

instead became "semi-aggressive." Each officer then grabbed one of

Brame's arms and pushed Brame against the wall of the building.

Brame resisted the entire time. As he was being placed in

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handcuffs, Brame said: "It's in my pocket." One of the officers

then looked down and saw the butt end of a handgun in Brame's

pocket. The officers then frisked Brame, seizing a loaded handgun,

the serial number of which had been obliterated, and a small

plastic baggie of crack cocaine that was located in the waistband

of Brame's boxer shorts. Brame was then placed under arrest. At

no time during the stop was Brame advised of his Miranda rights.

Brame was later charged in a four-count indictment with

(1) possession of five grams or more of cocaine base in violation

of 21 U.S.C. § 844(a) (Count One); (2) possession of a handgun

during and in relation to the felony described in Count One, in

violation of 18 U.S.C. § 924 (Count Two); (3) possession of a

firearm as a convicted felon, in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2) (Count Three); and (4) possession of a

firearm that had an obliterated manufacturer's serial number in

violation of 18 U.S.C. §§ 922(k) and 924(a)(2) (Count Four).

Brame filed multiple motions to suppress after he was

arraigned. The district court denied Brame's motions, finding that

the officers lawfully stopped Brame for investigative questioning,

lawfully arrested him on suspicion of having committed a crime, and

lawfully seized the physical evidence taken from Brame's person.

The district court also determined that, with respect to any

statements made by Brame during his encounter with the officers,

Miranda warnings were not required until Brame was arrested or "in

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custody." Because the government agreed not to use, as evidence

against Brame, any statements made by Brame after his arrest, the

district court found no basis for suppression of any of Brame's

statements.

Brame appeared before the district court on January 3,

2007, to enter a conditional plea of guilty to all four counts of

the indictment. The court explained that, as to Count One, Brame

faced at least five years in prison but could be sentenced up to 20

years. As to Count Two, the court advised Brame that he was

"subject to a term of imprisonment that must be at least five years

and can be as much as life and has to be consecutive to the

sentence on Count One." On each of Counts Three and Four, Brame

was advised that the maximum penalty was ten years. Asked if he

understood these penalties, Brame replied: "Yes, sir." After

finding that there was a factual basis for the plea, that Brame

understood and voluntarily waived the rights he was surrendering by

pleading guilty, that Brame understood the penalties he was facing,

and that Brame was entering his plea voluntarily, the district

court accepted Brame's plea, conditioned on his right to appeal the

suppression rulings.

Brame was sentenced on May 23, 2007, to 144 months in

prison, the bottom of the Guidelines range of 144 to 165 months.

This sentence consisted of 84 months on Counts One, Three and Four,

to run concurrently, plus 60 months on Count Two, to run

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consecutively.

II. SUPPRESSION ISSUES

Brame contends that the district court erred when it

denied his motions to suppress. According to Brame, and contrary

to the district court's findings, the police had neither reasonable

suspicion to stop and question him nor probable cause to search and

arrest him. Brame also contends, again contrary to the district

court's findings, that he was subjected to unlawful custodial

interrogation throughout his encounter with the officers.

We review a district court's findings of fact on a

suppression motion for clear error and its conclusions of law de

novo. United States v. Vilches-Navarrete, 523 F.3d 1, 12 (1st Cir.

2008). Applying that mixed standard of review, we find no error in

the district court's denial of Brame's motions to suppress.

The record amply reveals that the officers' initial stop

of Brame was appropriate under Terry v. Ohio, 392 U.S. 1, 20 (1968)

(holding that a brief, investigative stop of a suspect requires

only a reasonable suspicion of wrongdoing). The shift manager at

McDonald's called 911 to report that he saw two men—whom the

manager well described—engaged in a drug transaction in the

restaurant's bathroom. When officers arrived at the restaurant

moments later, they saw a man who fit the manager's description

leaving the restaurant. After briefly talking with the manager,

the officers stopped the man for questioning. At that time, the

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officers clearly had reasonable suspicion that the man had just

taken part in a drug trafficking offense in the McDonald's

bathroom.

During the course of the investigatory stop, the

suspect—ultimately identified as Brame—acted in a nervous and

fidgety manner, avoided eye contact with the officers, "clammed up"

when asked to explain his story about what happened in the

bathroom, kept returning his hands to his pockets despite

instructions to the contrary, and failed fully to comply when the

officers directed him to turn his pockets inside out. Aware that

a heavy object was in one of Brame's pockets, the officers asked

Brame to put his hands behind his back. Brame refused and,

instead, became increasingly angry and aggressive. Given Brame's

behavior, the officers placed Brame in handcuffs and frisked him.

That the officers placed Brame in handcuffs did not

elevate the Terry stop into a full-blown arrest. The use of

handcuffs during the course of a stop is appropriate if officers

reasonably believe that handcuffs are necessary to protect the

officers, the public, or the suspect during the stop. United

States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998). As noted

in Acosta-Colon, "[p]olice officers engaged in an otherwise lawful

stop must be permitted to take measures—including the use of

handcuffs—they believe reasonably necessary to protect themselves

from harm, or to safeguard the security of others." Id. Here, in

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light of Brame's belligerent behavior and the officers' objectively

reasonable fears that Brame might be armed, the use of handcuffs

was entirely appropriate.

That the officers frisked Brame was also not inconsistent

with a Terry stop. As the Supreme Court held in Terry, when an

individual is subject to a lawful investigative stop, an officer

may conduct a limited frisk of that individual for weapons. Terry,

392 U.S. at 26-27. Given the circumstances in this case, a

precautionary frisk was clearly warranted.

Not until the frisk resulted in the discovery of both a

loaded weapon as well as drugs did the officers place Brame under

arrest. Then, if not before, the officers had probable cause to

believe that Brame had committed a drug trafficking offense. His

arrest and the concomitant seizure of the items found on his person

were accordingly lawful. Brame's argument to the contrary—that he

was subjected, much earlier, to a de facto arrest without probable

cause—is without merit.

Once Brame was arrested, the officers should have advised

Brame of his Miranda rights. The government, however,

appropriately addressed the officers' Miranda violation by

agreeing not to introduce any statements made by Brame subsequent

to his arrest. With respect to the statements made by Brame before

his arrest, relief under Miranda is not warranted.

In sum, like the district court, we find no merit to

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Brame's suppression arguments. We will accordingly affirm the

district court's denial of Brame's motions to suppress.

III. CONSECUTIVE SENTENCE

Brame contends that he was improperly sentenced to a

consecutive sentence for carrying a firearm during a drug

trafficking crime. Specifically, he contends that there was

insufficient evidence to establish that he possessed the firearm in

furtherance of a drug trafficking offense. Because Brame did not

raise this issue before the district court, we review for plain

error. To vacate Brame's sentence for plain error, we must find

that (1) there was error; (2) the error was plain and obvious; (3)

the error affected Brame's substantial rights; and (4) the error

impaired the fairness, integrity, or public reputation of the

judicial proceedings. United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001).

We note initially that Brame entered a conditional plea

of guilty to all four counts of the indictment. Before Brame

entered his plea, the government described the evidence that it

planned to introduce at trial. Defense counsel assured the court

that he had discussed the government's proffer with Brame. After

hearing that defense counsel was satisfied that the government's

evidence was sufficient to convict Brame on all four counts, the

court asked Brame whether he disagreed with the government's

proffer. Brame said that he did not disagree with any part of the

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proffer. Indeed, Brame said that, to the best of his knowledge,

the information proffered by the government was true. The district

court thereafter announced that it found a factual basis for

Brame's plea.

Contrary to what he professed at the plea hearing, Brame

now contends that the government's evidence was not sufficient to

establish that he possessed a firearm in furtherance of a drug

trafficking offense as charged in Count Two. We are unpersuaded.

The government's evidence, which Brame did not dispute, revealed

that (1) soon after a witness observed Brame in what appeared to be

a drug trafficking transaction, Brame was found with both a baggie

of crack cocaine and a loaded, operable handgun concealed on his

person; (2) Brame was, at the time, a convicted felon who could not

lawfully possess a handgun; and (3) the serial number on the

handgun had been unlawfully obliterated. Such evidence provided

ample basis for Brame's guilty plea. The district court's decision

to impose a consecutive five-year sentence for carrying a firearm

in furtherance of a drug trafficking felony was not erroneous, much

less plainly erroneous.**

IV. PRIOR CONVICTIONS

Brame challenges the district court's use of two prior

convictions for purposes of enhancing his sentence. According to

**
Because we find no error, we need not consider whether
Brame has waived the right to assert this ground of appeal.

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Brame, there was insufficient evidence to establish that he was the

individual convicted of those two crimes. We review the district

court's findings of fact with respect to prior convictions for

clear error. United States v. Santos, 363 F.3d 19, 22 (1st Cir.

2004).

Brame filed written objections to his probation officer's

Presentence Report, challenging, among other things, the inclusion

in his criminal history of two prior convictions involving an

individual named "Frank Lollis." Brame contends that those

convictions should not have been attributed to him. In his

presentence interview, however, Brame admitted that he used the

alias "Frank Lollis." Moreover, according to Brame's probation

officer, the court documents in each of the two cases revealed that

"Steven Brame" was either the name of the defendant or an alias

used by the defendant. The same address, including apartment

number, was listed for the individual charged in those two cases;

and, when the district court asked defense counsel whether Brame

disputed the statement that he purportedly made to the presentence

investigator, namely, that he used the alias "Frank Lollis,"

counsel replied in the negative. Based on the evidence presented

to it, the district court overruled Brame's objection to the

addition of criminal history points for the two prior convictions,

finding, as a matter of fact, that the two convictions were

properly attributed to Brame. We find no clear error in the

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district court's factual finding.

V. AMENDMENT 706

Months after Brame was sentenced, Congress amended the

Sentencing Guidelines to lower by two levels the base offense level

for many crack cocaine offenders. U.S.S.G § Amend. 706. Brame was

sentenced in May of 2007, more than five months before Amendment

706 became effective on November 1, 2007. Brame mistakenly asserts

that Amendment 706 became effective before his May sentencing.

Based on his mistaken assertion, Brame contends that he should have

received the benefit of Amendment 706 at the time of his

sentencing. His contention is without merit. He may be entitled

to the benefit of Amendment 706, but he must seek relief initially

in the district court through 18 U.S.C. § 3582(c)(2). Because his

challenge here is premature, we take no view as to whether or not

Brame is entitled to the benefit of Amendment 706.

VI. CONCLUSION

For the reasons explained above, we AFFIRM the judgment

of the district court. We REMAND the case to the district court

where Brame may file, if he wishes, a motion for reduction in

sentence pursuant to the recent Guidelines amendment that lowers

the Guidelines sentencing range for certain categories of offenses

involving crack cocaine. U.S.S.G. Amend. 706.

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