United States v. Lipscomb

United States Court of Appeals
For the First Circuit

No. 07-1293

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY LIPSCOMB,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Chief Judge,
O'Connor,* Associate Justice (Ret.),
and Torruella, Circuit Judge.

George J. West, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Stephen G.
Dambruch, Assistant United States Attorney, were on brief for
appellee.

August 21, 2008

*
The Hon. Sandra Day O'Connor, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 TORRUELLA, Circuit Judge. Anthony Lipscomb was indicted

by a federal grand jury on three counts: possession with the intent

to distribute five or more grams of cocaine base, possession of a

gun in furtherance of a drug trafficking crime, and possession of

a gun as a convicted felon. After a three-day jury trial, he was

convicted on all counts and sentenced to 195 months' imprisonment.

Lipscomb now appeals his conviction and sentence on various

grounds. After careful consideration of each of his arguments, we

affirm his conviction, but remand for resentencing.

I. Background

Because Lipscomb questions the sufficiency of the

evidence supporting his conviction, we recite the facts in the

light most favorable to the jury's guilty verdict. See United

States v. Colón-Díaz, 521 F.3d 29, 32 (1st Cir. 2008). We begin by

recounting the basic underlying facts and leave further

elaboration, as necessary, for the analysis of Lipscomb's several

other claims.

On December 30, 2004, Lipscomb was talking on his cell

phone outside an auto repair shop when he was approached by

Providence Police Detectives Scott A. Partridge and Joseph

Colanduono. Lipscomb took several steps away from them and began

to run; the detectives chased after him. As he fled, Lipscomb

reached into his jacket and retrieved a clear plastic bag, which he

threw to the ground. The bag was later found to contain thirty-

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five grams of crack cocaine. While continuing to run, Lipscomb

also removed a fully-loaded 9 mm gun from his waistband and tossed

it under a nearby car. The gun was found to have one round in the

chamber ready to fire. As the police closed in, Detective

Colanduono grabbed Lipscomb's jacket, but Lipscomb was able to slip

out of it and continue fleeing.

Lipscomb was eventually tackled by Detective Partridge

and arrested. He was taken to the hospital to treat the cuts and

bruises on his face that resulted from the struggle. On his

person, he was found to be carrying a cell phone, $1,471 in cash,

and a quantity of marijuana.

Lipscomb was indicted by a grand jury on three counts:

(1) possession with intent to distribute five or more grams of

crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B); (2) possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and

(3) felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1).

Lipscomb moved to suppress the gun and crack cocaine

found by the police. On April 13, 2005, the district court held a

hearing on the motion to suppress and heard testimony from

Detectives Colanduono and Partridge, as well as from Lipscomb.

Lipscomb identified Colanduono and Partridge and testified that

they tackled and beat him without provocation or warning. When

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asked about the crack cocaine and the gun, he testified that

neither was his. Upon further cross-examination, he reiterated

that he did not possess a gun and denied any knowledge regarding

the bag of crack cocaine that the Government claimed he had

discarded during the pursuit. He denied wearing a jacket that day

and repeated his assertion that the police "did not seize the items

from me." He testified that he was carrying $1,471 in cash, which

he claimed was from his landscaping and handyman businesses.

The district court denied the motion to suppress and

admitted the evidence. In its written order, the court concluded

that because Lipscomb had testified that he had never possessed

either the gun or the crack cocaine at issue, he lacked standing to

assert a Fourth Amendment violation. The court went on to provide

two other grounds for its decision, concluding that even if it were

to accept the Government's version of the facts, Lipscomb's motion

to suppress would still fail because he had abandoned his property

prior to the seizure and the officers had reasonable suspicion to

approach Lipscomb in the first instance.

On October 5, 2005, following a three-day trial, a jury

convicted Lipscomb on all counts. Lipscomb moved for a new trial,

asserting that his counsel had been ineffective. The court denied

the motion. One month later, in December 2005, Lipscomb filed a

motion to reconsider, in which he argued that the court had failed

to rule on his pro se request for substitute counsel; the request

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had been communicated to Lipscomb's counsel and the Government by

letter several months before trial. He also asserted that his

Sixth Amendment right to a public trial had been violated because

the courtroom had been locked for a portion of closing arguments.

The court denied the motion to reconsider and the case was set for

sentencing.

The Government filed an information pursuant to 21 U.S.C.

§ 851 requesting the imposition of an enhanced mandatory minimum

sentence under 21 U.S.C. § 841(b)(1)(B), based on Lipscomb's prior

state felony drug convictions. After hearing argument from

counsel, calculating the appropriate sentencing guidelines range,

and considering the 18 U.S.C. § 3553(a) factors, the court

sentenced Lipscomb to 135 months for Count One, to run concurrently

with 120 months for Count Three, and sixty months for Count Two, to

run consecutively to the 135 months' sentence; Lipscomb was

sentenced to a total of 195 months' incarceration. Lipscomb timely

appeals, alleging numerous errors by the district court.

II. Discussion

A. Motion to Suppress

Before reaching the merits of a suppression challenge,

the defendant carries the burden of establishing that he had a

reasonable expectation of privacy with respect to the area searched

or, as in this case, the items seized. See United States v.

Salvucci, 448 U.S. 83, 91-92 (1980); accord United States v. Lewis,

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40 F.3d 1325, 1333 (1st Cir. 1994) ("Such an expectation of privacy

is a threshold standing requirement that a defendant must establish

before a court can proceed with any Fourth Amendment analysis.").

While the Supreme Court noted that this threshold analysis is "more

properly placed within the purview of substantive Fourth Amendment

law than within that of standing," Minnesota v. Carter, 525 U.S.

83, 88 (1998) (citing Rakas v. Illinois, 439 U.S. 128, 140 (1978)),

courts continue to refer to it as an issue of "standing," see,

e.g., United States v. Romain, 393 F.3d 63, 68 (1st Cir. 2004).

During the hearing on the motion to suppress, Lipscomb

repeatedly asserted that neither the crack cocaine nor the gun was

his. He claimed no interest in the items and denied that the

government seized them from him. In cases involving defendants who

fail to establish or claim ownership of an item, we have concluded

that they lack a sufficient privacy interest to assert a Fourth

Amendment violation. See, e.g., United States v. García-Rosa, 876

F.2d 209, 219-20 (1st Cir. 1989) (no standing because the defendant

failed to claim that he possessed the box at issue), vacated on

different grounds sub nom. Rivera-Feliciano v. United States, 498

U.S. 954 (1990); United States v. Aguirre, 839 F.2d 854, 857 (1st

Cir. 1988) (no standing because there was no evidence that the

defendant owned or leased the car at issue). In the instant case,

Lipscomb actively disowned any interest in any of the seized

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items;1 thus, according to his own testimony, he lacks the

expectation of privacy required to challenge the seizure of the

crack cocaine and gun. We therefore affirm the district court's

motion to suppress on this basis, and we need not reach any of the

alternate grounds identified by the court.

B. Trial Challenges

Lipscomb argues that the district court made several

errors leading up to and during trial. We address each in turn.

1. Disclosure of Confidential Informant

Lipscomb challenges the court's decision to deny his

request for disclosure of the identity of a confidential informant.

We need not tarry long on this argument, because Lipscomb failed to

raise the issue before the district court.

After a hearing on the motion, the magistrate judge

issued a written opinion denying the request for disclosure of the

informant's identity. Lipscomb failed to timely appeal the

magistrate judge's ruling to the district court.2 Lipscomb cannot

1
We note that any fear that Lipscomb may have felt that claiming
ownership of the crack cocaine or the firearm would have been used
against him at trial is without support in our case law. See
García-Rosa, 876 F.2d at 219 (noting the well-settled case law
establishing that "testimony given to meet the standing
requirements cannot be used as direct evidence against the
defendant at trial on the question of guilt or innocence"); see
also Lewis, 40 F.3d at 1333.
2
Rhode Island District Court Local Rule 57.2(c)(1) allows parties
ten days to seek review with the district court of a magistrate
judge's order.

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bypass the district court and bring this appeal to us directly.

See, e.g., United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir.

2008); Teamsters Union, Local No. 59 v. Superline Transp. Co.,

Inc., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is settled

in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal."); United

States v. Akinola, 985 F.2d 1105, 1108-09) (1st Cir. 1993); cf.

Rule 3(b), Rules for U.S. Magistrate Judges in the U.S. District

Court for the District of Massachusetts ("[F]ailure to file timely

and appropriate objections to that report and recommendation . . .

will result in preclusion of the right to appeal the district

court's order to the United States Court of Appeals.").

2. Rule 16 Notice Requirement

Lipscomb next argues that Detectives Colanduono and

Partridge testified as experts without providing the necessary

notice and disclosures prior to trial. Specifically, Lipscomb

contests their testimony as to the connection between firearms and

drug trafficking and the amount of crack cocaine that is consistent

with an intent to distribute. We review the admission of witness

testimony for abuse of discretion. See United States v. Hatch, 514

F.3d 145, 163 (1st Cir. 2008) (citing United States v. Cormier, 468

F.3d 63, 72 (1st Cir. 2006)).

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 Federal Rule of Criminal Procedure 16(a)(1)(G) requires

that "[a]t the defendant's request, the government must give to the

defendant a written summary of any testimony that the government

intends to use under Rules 702, 703, or 705 of the Federal Rules of

Evidence during its case-in-chief at trial."3 Such a request was

made by defense counsel in this case. The Government avers that

two months prior to trial, it informed defense counsel of its

intention to call Detectives Partridge and Colanduono to testify

to:

the street value of the crack cocaine and
that, based on their training and experience,
the quantity of crack cocaine seized in this
case is consistent with possession for
distribution to others and not for personal
use . . . [and] the methods of operation of
narcotics distributors, including . . . the
utilization of firearms as part of the drug
trade.

After receiving the information from the Government, defense

counsel neither made additional requests for information nor sought

any clarification. It was not until Detective Partridge took the

stand at trial that Lipscomb's counsel objected to the testimony

and raised the Rule 16 notice issue at sidebar.

The rule requires that the Government's written summary

include "the witness's opinions, the bases and reasons for those

opinions, and the witness's qualifications." Fed. R. Crim. P.

3
Prior to 2002, the rule was found in Federal Rule of Criminal
Procedure 16(a)(1)(E).

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16(a)(1)(G). At sidebar, Lipscomb's counsel conceded that the

Government's notice was adequate with respect to the witnesses'

opinions. Thus, there is no dispute that Lipscomb was on notice

with respect to the particular conclusions drawn by the witnesses

regarding the role of firearms and the quantity of crack cocaine at

issue. Cf. United States v. Duvall, 272 F.3d 825, 828-29 (7th Cir.

2001) (finding insufficient a general list of topics that lacked

the witness's actual opinion).

Lipscomb's Rule 16 objection is instead based on an

alleged failure to provide notice regarding the "bases for [the

witnesses'] ultimate opinion[s]." The district court overruled the

objection and concluded that there was no Rule 16 violation,

stating that "the Government could [have] be[en] more precise in

setting forth the basis of the officer's opinion, but I don't

believe it rises to the level of [a] violation of Rule 16. Even if

it did, I think the case law . . . makes clear that suppression of

the evidence, or exclusion of the evidence, is clearly not the

sanction that is called for." Lipscomb disagrees and renews his

argument on appeal.

In response, the Government makes two separate arguments:

(1) neither the testimony regarding the connection between drug

trafficking and firearms, nor the testimony regarding the quantity

of drugs typically involved in distribution crimes, constitutes

expert testimony and therefore the notice requirement was not

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triggered; and (2) in any event, the notice provided was adequate.

We need not address the first argument, as it is clear in this case

that irrespective of whether it was expert testimony, the

Government provided sufficient notice to comply with Rule 16.4

The Government's notice, while by no means detailed, was

enough to satisfy the requirements. The Government informed

defense counsel that the officers would be testifying on the basis

of their "training and experience." The notice clearly stated that

the officers' testimony would make conclusions regarding the

presence of firearms and the connection between the quantity of

crack cocaine seized from the defendant and drug distribution, and

that those conclusions were based on the officers' experience

working in the police department. The inferential step necessary

to go from the notice provided by the Government to the actual

testimony given at trial is not one requiring more notice. Given

that the defense had full notice of the actual opinions to which

the detectives intended to testify, we are unpersuaded by the

defendant's criticism of the lack of detail regarding the bases for

those opinions. In the factual context of this case, we conclude

4
With respect to the connection between firearms and drug
trafficking, we have held that such testimony is not expert
testimony. See United States v. Ayala-Pizarro, 407 F.3d 25, 29
(1st Cir. 2005) ("It required no special expertise for Officer
Mulero to conclude, based on his observations, that places which
sell drugs are often protected by people with weapons."). We have
not made such a ruling regarding the amount of drugs consistent
with personal use versus distribution, and we have no occasion to
do so now.

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that the proffered notification -- that the testimony would be

based on knowledge gained from formal training and years of

experience as police officers -- is sufficient.

Had the testimony involved a more complex subject matter,

as found in cases involving technical or scientific evidence, more

detailed notice may have been required. See Fed. R. Crim. P. 16

1993 amend. advisory committee's note (observing that in more novel

and complicated areas, greater disclosure may be required,

including "written and oral reports, tests, reports, and

investigations, [and] any information that might be recognized as

a legitimate basis for an opinion under Federal Rule of Evidence

703"). This is not such a case. Moreover, the bases for the

detectives' conclusions were adequately probed by defense counsel

on cross-examination with no particular difficulty. See id.

(stating that the goal of Rule 16 is "to provide the opponent with

a fair opportunity to test the merit of the expert's testimony

through focused cross-examination"). Accordingly, we conclude that

the district court did not abuse its discretion in overruling the

defendant's objection.

3. Limitations on Cross-Examination

Lipscomb's next assignment of error concerns the limits

placed on his ability to impeach the detectives' testimony. We

review a district court's imposition of "reasonable limits on

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cross-examination" for abuse of discretion.5 United States v.

Byrne, 435 F.3d 16, 21 (1st Cir. 2006) (quoting United States v.

González-Vázquez, 219 F.3d 37, 45 (1st Cir. 2000)) (internal

quotation marks omitted).

The district court rejected the defendant's request to

call witnesses and offer exhibits to establish inconsistencies

regarding Lipscomb's license plate. The two detectives testified

that they observed Lipscomb driving a green Jaguar with the license

plate "XM-82" on the day of his arrest.6 Defense counsel sought to

call three witnesses who would testify that on the day of his

arrest, Lipscomb's green Jaguar was registered under a vanity

license plate, "SOVRN." The court concluded that because the

license plate identification is not material to Lipscomb's guilt or

innocence, it is a collateral issue on which extrinsic evidence is

inadmissible. We agree and find no abuse of discretion here.

5
Normally, a preserved challenge to a defendant's Sixth Amendment
right to confront adverse witnesses is evaluated in two steps.
First, we review de novo a district court's decision to limit
cross-examination to determine whether the defendant was given
"sufficient leeway to establish a reasonably complete picture of
the witness' veracity, bias, and motivation." United States v.
González-Vázquez, 219 F.3d 37, 45 (1st Cir. 2000). If satisfied
that this constitutional threshold was met, we then review the
district court's limitations for abuse of discretion. In this
case, no argument is made that the district court's actions were
constitutionally infirm, nor indeed is there basis on the record
for such an allegation.
6
There is no dispute that Lipscomb's green Jaguar had previously
been registered under the license plate "XM-82."

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 The thrust of Lipscomb's argument is that the detectives'

testimony is key to the Government's case and evidence of

inconsistency regarding the license plate undermines the

detectives' credibility. Lipscomb thus argues that the district

court abused its discretion by invading the jury's role in making

credibility determinations. The testimony regarding the license

plate is, however, a collateral issue; a party is barred from

impeaching a witness on a collateral matter through the use of

extrinsic evidence. See United States v. Beauchamp, 986 F.2d 1, 3

(1st Cir. 1993) ("[W]hen a witness testifies to a collateral

matter, the examiner 'must take [the] answer,' i.e., the examiner

may not disprove it by extrinsic evidence."). The determination of

whether an issue is collateral or not turns on whether it is

"relevant for a purpose other than mere contradiction of the in-

court testimony of the witness." 1 McCormack on Evidence § 45, at

169; see also United States v. Mulinelli-Navas, 111 F.3d 983, 988

(1st Cir. 1997) ("The evidence must have an independent purpose and

an independent ground for admission." (quoting United States v.

Payne, 102 F.3d 289, 294 (7th Cir. 1996))). Specifically, the

"offered testimony must not only contradict a statement of [the

witness], but must also be material to [the defendant's] guilt or

innocence." Mulinelli-Navas, 111 F.3d at 988.

Here, Lipscomb failed to establish any independent and

material ground for admitting the testimony and evidence regarding

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the license plate; the evidence of the license plate did not relate

to Lipscomb's guilt on either the drug or firearm charge. The

district court did not abuse its discretion in limiting the

defendant's ability to present testimony and evidence on the issue,

which was only relevant to impeaching the detectives' credibility

on a topic immaterial to Lipscomb's guilt.

4. Motion for Acquittal

At the end of the Government's case-in-chief, Lipscomb

moved for a judgment of acquittal on Counts One and Two; the

district court denied the motion. We review a district court's

denial of a Rule 29 motion for a judgment of acquittal de novo.

United States v. O'Shea, 426 F.3d 475, 479 (1st Cir. 2005).

Viewing the evidence in the light most flattering to the jury's

guilty verdict, we assess whether a reasonable factfinder could

have concluded that the defendant was guilty beyond a reasonable

doubt. We have described this standard of review as "formidable,"

id. (quoting United States v. Loder, 23 F.3d 586, 589 (1st Cir.

1994)) (internal quotation marks omitted), and "[d]efendants

challenging convictions for insufficiency of evidence face an

uphill battle on appeal." Id. (quoting United States v. Hernández,

218 F.3d 58, 64 (1st Cir. 2000)) (internal quotation marks

omitted).

Lipscomb argues that the Government failed to present

sufficient evidence to convict him under 21 U.S.C. §§ 841(a)(1) and

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(b)(1)(B). He contends that the Government presented no evidence

that someone was coming to pick up drugs from Lipscomb and that

there were no witnesses who testified to observing Lipscomb

involved in any drug transactions. Furthermore, Lipscomb argues

that the Government's case hinges on the testimony of Detectives

Partridge and Colanduono, who testified that thirty-five grams of

crack cocaine was an amount consistent with an intent to

distribute; on cross-examination, however, they admitted that it

was possible for that quantity to be consistent with personal use.

Lipscomb thus argues that no reasonable jury could have found him

guilty. The Government challenges Lipscomb's myopic view of the

trial evidence.

First, with respect to the thirty-five grams of crack

cocaine, both Detectives Partridge and Colanduono testified that

the amount was consistent with distribution. Whether the jury

found the detectives credible is a decision we leave to the jury.

Credibility determinations are squarely within the jury's province,

and we will not disturb them unless there is no reasonable way a

jury could have found the witnesses believable. See Hernández, 218

F.3d at 64; see also United States v. Gómez-Pabón, 911 F.2d 847,

853 (1st Cir. 1990) (holding that a jury's assessment of a

witness's credibility will not be disturbed unless the testimony is

"incredible or insubstantial on its face" (quoting United States v.

Aponte-Suárez, 905 F.2d 483, 489 (1st Cir. 1990))) (internal

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quotation marks omitted). Indeed, the jury heard during cross-

examination that this quantity of crack cocaine could have been for

personal use. The jury could have discounted the detectives'

testimony, but it chose not to do so.

Second, the detectives testified that at the time of the

arrest, Lipscomb exhibited no signs of having ingested or being

under the influence of crack cocaine. Furthermore, the detectives

did not find any crack pipes or any other implements used to smoke

crack cocaine on Lipscomb's person. The Government thus argues

that the jury could have made the reasonable inference that the

quantity of crack cocaine attributed to Lipscomb was for

distribution, not personal use.

Third, the Government presented evidence that Lipscomb

was carrying a loaded handgun with one round in the chamber, ready

to fire, and over $1,400 in cash. The Government argued that the

loaded handgun demonstrated that he was in the process of

transacting drug deals and carried the gun for protection; the cash

was the apparent proceeds from those drug deals.

Based on this evidence, we conclude that a reasonable

jury could have found Lipscomb guilty beyond a reasonable doubt.

Accordingly, we affirm the district court's denial of defendant's

Rule 29 motion.

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 C. Motion for a New Trial

The jury returned a guilty verdict on October 5, 2005.

On October 17, Lipscomb filed a pro se motion for a new trial in

which he asserted that his trial counsel was ineffective because he

neglected to call certain witnesses, declined to challenge a

particular juror, was ineffective in conducting cross-examination,

and handled two motions poorly. The district court denied the

motion. Lipscomb then filed a second pro se motion for a new

trial, captioned as a motion for reconsideration, on December 5,

2005. In this motion, Lipscomb made two claims: (1) the district

court failed to rule on his pre-trial motion for substitute

appointed counsel; and (2) he was denied his Sixth Amendment right

to a public trial because the courtroom doors were allegedly locked

during a portion of the closing arguments. We review the denial of

a motion for a new trial for abuse of discretion. See United

States v. Connolly, 504 F.3d 206, 211 (1st Cir. 2007), cert.

denied, 128 S. Ct. 1689 (2008).

1. Ineffective Counsel

Seven months before trial, Lipscomb crafted a pro se

motion to remove his counsel due to a "conflict of interest and

ineffective counsel." A copy of the motion was mailed on March 3,

2005, to the United States Attorney's Office and to Lipscomb's

counsel. No mention was made of the motion to the court; although

Lipscomb filed other written requests to and appeared before the

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court, he did not ask about the March 3 letter and made no other

mention of a desire to terminate his relationship with counsel.

Lipscomb continued to trial with his same counsel. It was not

until December 5, 2005, (when Lipscomb filed his motion for

reconsideration) that the motion first appeared in the district

court's file.

On appeal, Lipscomb appears to frame the discussion of

his pro se motion for substitute counsel as further support for his

argument that a new trial should have been granted because trial

counsel was ineffective. Lipscomb contends that the filing of the

March pro se motion is further evidence of his counsel's

ineffectiveness, as well as their broken relationship. To the

extent that ineffective assistance is the basis for the new trial

motion, we conclude that the district court properly denied the

motion, observing that an ineffective assistance claim is typically

raised in a collateral proceeding with the benefit of a more fully

developed record. See, e.g., United States v. Wilkerson, 251 F.3d

273, 278-79 (1st Cir. 2001); see also generally Massaro v. United

States, 538 U.S. 500 (2003).

With respect to the suggestion that Lipscomb's new trial

motion should have been granted because of the district court's

failure to rule on his pro se motion for substitute counsel, we

find the argument unavailing. Given the undisputed facts regarding

the means by which the district court was made aware of the motion

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-- two months after the end of trial -- we cannot hold the court

responsible for "fail[ing] to rule on" the motion. Thus, the court

did not abuse its discretion in denying the motion for a new trial

on the basis of this unfiled motion.

2. Sixth Amendment

In his motion to reconsider, Lipscomb asserts that he

should be granted a new trial because the district court violated

his Sixth Amendment right to a public trial. See Owens v. United

States, 483 F.3d 48, 61 (1st Cir. 2007) ("The guarantee of a public

trial is for the benefit for the defendant; a trial is far more

likely to be fair when the watchful eye of the public is

present."). Specifically, he avers that the courtroom was closed

for a period of time during closing arguments. In support of his

claim, Lipscomb submits an affidavit from an individual who states

that he had sought to attend closing arguments, but was unable to

enter the courtroom because the doors were locked.

The Government raises several arguments in response.

First, it argues that the claim is time-barred and, therefore, we

lack jurisdiction. Rule 33 provides two separate time limits for

the filing of a new trial motion: (1) a defendant has three years

to file a motion based on "newly discovered evidence," and (2) a

defendant has only seven days if the motion is "grounded on any

reason other than newly discovered evidence." Fed. R. Crim. P.

33(b). Lipscomb's motion to reconsider, which advances the Sixth

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Amendment argument for the first time, was submitted on December 5,

2005 -- nearly two months after the jury's guilty verdict.

The Government argues further that Lipscomb's Sixth

Amendment argument is not based on "newly discovered evidence,"

because it is not "evidence" in the context of Rule 33(b)(1). The

Government urges us to adopt a narrow definition of "evidence" that

is limited to evidence pertaining to guilt or innocence, as opposed

to evidence relating to collateral issues. See, e.g., United

States v. Hall, 324 F.3d 720, 722-23 (D.C. Cir. 2003) (citing cases

on both sides of a circuit split). The Government thus contends

that the information upon which Lipscomb's Sixth Amendment argument

is based is "only information" and not evidence for purposes of

Rule 33(b)(1) because it does not bear on guilt or innocence; thus,

his claim is time-barred. The Government argues that while such

collateral information constitutes evidence for purposes of Rule

33(b)(2), it does not constitute evidence for purposes of Rule

33(b)(1). We are unpersuaded and decline to give the term

"evidence" two different meanings within the same evidentiary rule.

The Government next contends that Lipscomb's argument is

meritless, lacking any competent evidence that the door was in fact

locked. In support of his argument, Lipscomb presented only a two-

sentence, unsworn, handwritten letter from an individual.7 The

7
The magistrate judge was unable to read the last name of the
declarant. She surmised that the name was "Emmanuel Antonio."

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letter stated: "On the date of 10-5-05 I went to the federal court

building to attend the closing arguments for Anthony Lipscomb.

Arriving alittle [sic] late, when I got to the court room the door

was locked and I wasn't able to enter." The letter was dated

December 5, 2005, and was received by the court on January 9, 2006.

Other than this two-sentence letter, Lipscomb provides no

other support for his Sixth Amendment claim. At a hearing on his

motion, Lipscomb offered no further proof: he did not produce the

declarant as a witness; he proffered no explanation for his

inability to do so; and he provided no affidavits or testimony from

court personnel to corroborate the declarant's statement. On the

basis of this letter alone, Lipscomb urges us to find that he

satisfies his burden to establish a constitutional violation. See

Owens, 483 F.3d at 63 (observing that the party asserting the claim

carries the burden of demonstrating the Sixth Amendment violation);

cf. Borges Colón v. Román-Abreu, 438 F.3d 1, 14-15 (1st Cir. 2006)

(party claiming First Amendment violation has the burden of proof).

We refuse to do so.

This unsworn and unsubstantiated declaration, alone, is

not sufficient competent evidence to demonstrate that Lipscomb's

Sixth Amendment right to a public trial was violated. Indeed,

Lipscomb does not purport to show that the alleged closure was

intentional or that it occurred during the evidentiary phase of his

trial. The letter offered by Lipscomb states that the declarant

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was seeking to "attend closing arguments"; at most, the closure

occurred after the end of witness testimony and the submission of

trial evidence. For all of these reasons, we conclude that the

district court properly denied Lipscomb's motion for a new trial.

D. Sentencing8

A sentencing hearing was held over the course of two days

in January and February 2007. At the hearing, Lipscomb challenged

the Sentencing Guidelines' disparate treatment of crack and powder

cocaine. Lipscomb was sentenced prior to the Supreme Court's

decision in Kimbrough v. United States, 128 S. Ct. 558 (2007), in

which the Court held that "it would not be an abuse of discretion

for a district court to conclude when sentencing a particular

defendant that the crack/powder disparity yields a sentence

'greater than necessary' to achieve § 3553(a)'s purposes, even in

a mine-run case." Id. at 575.

Because the district court sentenced Lipscomb before

Kimbrough was announced, the court had no reason to express any

disagreement with the Sentencing Guidelines' 100:1 crack/powder

sentencing ratio. See United States v. Pho, 433 F.3d 53 (1st Cir.

2006). The district court sentenced Lipscomb to 135 months'

8
In his brief, Lipscomb argues that the court's use of the 21
U.S.C. § 851 information as a sentencing enhancement was
unconstitutional. At oral argument, defense counsel conceded that
the argument is clearly foreclosed. See Almendárez-Torres v.
United States, 523 U.S. 224 (1998); United States v. Fink, 499 F.3d
81, 85-87 & n.3 (1st Cir. 2007).

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imprisonment, a sentence at the low end of the applicable

guidelines, but fifteen months above the mandatory minimum. The

court might have imposed a lesser sentence had it known that it was

permissible to deviate from the 100:1 crack/powder ratio based on

a disagreement with policy. Lipscomb preserved the issue, and the

Government is not opposed to a limited remand on this basis. Thus,

we shall remand to permit the district court to reconsider the

sentence in light of Kimbrough.9

III. Conclusion

For the foregoing reasons, we affirm Lipscomb's

conviction, but remand to the district court for the limited

purpose of resentencing in light of Kimbrough.

Affirmed and Remanded.

9
Lipscomb also makes reference to the recent amendment to the
Sentencing Guidelines that reduces the base offense level for crack
cocaine offenses. See U.S.S.G. § 2D1.1. To the extent that
Lipscomb urges us to simply impose the new base offense level, we
decline. Lipscomb may file the appropriate motions in district
court under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10.

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