United States Court of Appeals
For the First Circuit
No. 17-1362
UNITED STATES OF AMERICA,
Appellee,
v.
MARCEL HENDERSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
David A. F. Lewis on brief for appellant.
Andrew E. Lelling, United States Attorney, and Michael J.
Crowley, Assistant U.S. Attorney, on brief for appellee.
December 19, 2018
BARRON, Circuit Judge. Marcel Henderson ("Henderson")
was indicted in the United States District Court for the District
of Massachusetts in April 2011 on one count of being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1). He was convicted of that offense after trial in
October 2016, following intermittent pre-trial proceedings, and,
in February 2017, he was sentenced to time served plus three weeks
of imprisonment and three years of supervised release. Henderson
now challenges his conviction and his sentence. For the reasons
that follow, we affirm.
I.
Henderson was arrested in Boston, Massachusetts on
January 2, 2011 after law enforcement found a firearm on his person
pursuant to a traffic stop and pat-down frisk. Henderson filed a
motion to suppress evidence of the firearm, for which the District
Court held a three-day evidentiary hearing. Based on testimony,
call transcripts, and other evidence adduced at the hearing, the
District Court made the following findings of fact.
During an investigation of the Academy Homes Street
Gang, law enforcement officials, including a detective with the
Boston Police Department ("BPD"), intercepted a string of phone
calls -- from December 30, 2010 to January 1, 2011 -- that
suggested that Henderson was armed and committing violent crimes
targeting members of that gang. The intercepts also revealed that
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the gang may also have been targeting Henderson, who had earlier
been shot by the gang. The detective briefed other officers on
the morning of January 2, 2011 about the information gleaned from
the phone calls and the potential danger that Henderson posed.
The detective specifically alerted team members that he expected
Henderson to be armed. Officers soon thereafter "established
surveillance" near Henderson's fiancée's residence in Boston,
where Henderson often stayed.
That same afternoon, the detective and a special agent
with the Federal Bureau of Investigation ("FBI") observed
Henderson exit his fiancée's residence and engage in an "animated
conversation" with another man on the public street in front of
the residence. They saw Henderson reach toward his waist with his
right hand, at which point the other man threw his hands up and
backed away.
The detective broadcast his observations of the
altercation, and his belief that Henderson possessed a firearm, by
radio to a BPD police officer and a lieutenant with the
Massachusetts State Police ("MSP"). They were each stationed
nearby and had taken part in the detective's earlier briefing.
Immediately after the altercation, the BPD officer and MSP
lieutenant saw Henderson, his fiancée, and their child enter a
car. The BPD officer and MSP lieutenant followed the car until it
made an illegal U-turn and pulled over to the side of the road.
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When Henderson exited the vehicle, the officers activated their
emergency lights and pulled up behind the car.
After the MSP lieutenant informed Henderson of the
traffic violation, the BPD officer conducted a pat-down frisk.
The FBI special agent exited his own vehicle to assist the two
officers, and the three of them pulled a firearm away from
Henderson and arrested him on the scene.
II.
Henderson challenges his conviction on two grounds. The
first concerns the District Court's denial of his motion to
suppress evidence of the firearm. The second concerns the District
Court's grant of the government's motion to bar him from asserting
a necessity defense.
A.
Henderson argues that, contrary to the District Court's
ruling denying his motion to suppress, the stop and frisk violated
the Fourth Amendment to the United States Constitution. The
Supreme Court has held that, under the Fourth Amendment, a law
enforcement officer may conduct a brief, investigatory stop of a
person, as well as a protective frisk, when the officer effecting
the stop has reasonable suspicion to believe that "criminal
activity may be afoot and that the persons with whom [the law
enforcement officer] is dealing may be armed and presently
dangerous[.]" Terry v. Ohio, 392 U.S. 1, 30 (1968). The Court
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has further explained that reasonable suspicion entails a "level
of suspicion [that] . . . is 'considerably less than proof of
wrongdoing by a preponderance of the evidence,' and 'obviously
less' than is necessary for probable cause." Navarette v.
California, 572 U.S. 393, 397 (2014) (quoting United States v.
Sokolow, 490 U.S. 1, 7 (1989)). We review the District Court's
legal conclusion that there was the requisite reasonable suspicion
de novo and its factual findings and credibility assessments
underlying that conclusion for clear error. See United States v.
Flores, 888 F.3d 537, 543 (1st Cir. 2018).
Henderson does not dispute that, if we accept the
District Court's factual findings, there was reasonable suspicion.
After all, the District Court found that the law enforcement
officials who conducted the stop and frisk -- and subsequently
effected the arrest -- had been briefed on the contents of a
wiretap that indicated that Henderson was involved in dangerous
criminal activity. And, the District Court found, the officials
also had knowledge of -- and direct observation of, in the FBI
agent's case -- Henderson's altercation with another man, in which
Henderson's actions implied that he was armed.
But, Henderson does contend that the factual findings
were clearly erroneous in key respects and thus that the District
Court's denial of the motion to suppress must be reversed. He
does so first by making much of the fact that the District Court
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refused to credit the testimony by law enforcement officers that
they had witnessed Henderson driving the vehicle on the day of his
arrest. The District Court instead credited Henderson's and his
fiancée's testimony that Henderson was physically incapable of
driving.
Henderson contends that, by finding that the officers
were not credible in this one way, the District Court clearly erred
in finding that they were credible in other key ways. And,
Henderson contends, if that key testimony was not credible, then
the District Court lacked any basis for concluding that the
officers had the requisite reasonable suspicion to effect the stop
and perform the pat down.
The District Court gave cogent reasons, however, for its
decision not to credit the testimony about whether Henderson drove
the car that do not in any way cast doubt on its reasons for
finding the officers' testimony otherwise credible.1 And, as we
have explained before, "[t]he fact that the district court
disbelieved one part of the officers' testimony but credited other
parts does not render suspect the district court's credibility
finding." United States v. Ivery, 427 F.3d 69, 72 (1st Cir. 2005).
1
Four months after the District Court's denial of his motion
to suppress, Henderson filed a motion for reconsideration. The
District Court denied that motion for reconsideration, but
Henderson does not challenge that ruling on appeal.
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Henderson separately challenges the District Court's
factual findings on a number of specific grounds. In particular,
he argues that the officers lied when they testified that Henderson
was "waving his arms around before he got into the car," that there
existed an affidavit that confirmed Henderson's version of events
and thus undermined the account given by the officers, that the
officers' vantage point would not have allowed them to observe
Henderson having a conversation or getting into the car, that the
officers' notes from the arrest did not reflect a belief that
Henderson was armed, and that the government allegedly conceded
that there was no traffic violation even though the officers had
testified that there was. But, Henderson's assertions either
mischaracterize the record or provide one of "two competing
interpretations of the evidence, [such that] the district court's
choice of one of them cannot be clearly erroneous." United States
v. Cruz-Jiménez, 894 F.2d 1, 7 (1st Cir. 1990). Accordingly, we
reject his challenge to the denial of his motion to suppress.
B.
We turn next to Henderson's challenge to the District
Court's grant of the government's motion in limine to preclude him
from raising a justification defense. Henderson opposed the
government's motion on the ground that he had made a sufficient
showing to raise a necessity defense at trial because members of
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the Academy Homes Street Gang had threatened to kill him
imminently.
The District Court granted the government's motion. In
doing so, it concluded that Henderson had failed to offer
sufficient evidence "to establish that [he] was under an 'unlawful
and imminent threat of such a nature as to induce a well-grounded
apprehension of death or serious bodily injury' at the time he was
found in possession of a firearm on January 2, 2011." See Dixon
v. United States, 548 U.S. 1, 4 n.2 (2006); United States v. Leahy,
473 F.3d 401, 409 (1st Cir. 2007). In reaching this conclusion,
the District Court noted that "imminence" requires a real emergency
giving rise to immediate danger to oneself or to a third party.
See United States v. Maxwell, 254 F.3d 21, 27 (1st Cir. 2001).
Reviewing de novo, see United States v. Lebreault-Feliz,
807 F.3d 1, 4 (1st Cir. 2015), we agree with the District Court.
The record simply does not support Henderson's assertion that he
faced an imminent threat to his life.
III.
Finally, we turn to Henderson's sentence. He contends
that the District Court erred in concluding that either of his
prior Massachusetts convictions, for, respectively, armed robbery
and armed assault, qualified as a conviction for a "crime of
violence" for purposes of U.S.S.G. § 2K2.1(a)(4)(A). See U.S.S.G.
§ 2K2.1(a)(4)(A) (applying a base level offense of 20 for
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"[u]nlawful receipt, possession, or transportation of firearms or
ammunition," if "the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of . . . a
crime of violence" as defined by § 4B1.2(a), see U.S.S.G. § 2K2.1
cmt. 1). Henderson preserved this challenge below, and thus our
review is de novo. See United States v. Benítez-Beltrán, 892 F.3d
462, 465-66 (1st Cir. 2018).2
The District Court did conclude that his prior
Massachusetts armed robbery conviction qualified as a "crime of
violence" for purposes of § 2K2.1(a)(4)(A). And, on that basis,
the District Court assigned Henderson a base offense level ("BOL")
of 20. See U.S.S.G. § 2K2.1(a)(4)(A).
The government concedes on appeal that Henderson's armed
robbery conviction does not qualify as a "crime of violence" for
purposes of that guideline. The government also makes no argument
that his armed assault conviction does so qualify. Thus, the
government does not dispute that the District Court committed a
2 We note that, below, Henderson objected to the Probation
Office's determination, in its presentence report, that he was an
armed career criminal based on three prior convictions that the
Probation Office classified as predicate offenses for purposes of
the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The
District Court agreed with Henderson, finding that at least one of
his three convictions did not qualify as an ACCA predicate, and
thus did not sentence Henderson as an armed career criminal under
ACCA. Therefore, although Henderson presses in his briefing to us
that his other two convictions also did not qualify as ACCA
predicates, we may bypass that question. See United States v.
Starks, 861 F.3d 306, 315 n.10 (1st Cir. 2017).
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"significant procedural error" by calculating Henderson's
Guidelines sentencing range ("GSR") based on the BOL of 20 that it
assigned him pursuant to § 2K2.1(a)(4)(A). See Gall v. United
States, 552 U.S. 38, 51 (2007) (stating that improper calculation
of the Guidelines range constitutes "significant procedural
error").
Nevertheless, the government argues, the District
Court's GSR calculation error was harmless. In pressing this
contention, the government proceeds on the understanding that,
absent the District Court's application of § 2K2.1(a)(4)(A),
Henderson's BOL would have been as low as 12. And, it would appear
that -- assuming Henderson's criminal history category remained
the same -- the lower BOL would have resulted in Henderson's GSR
being less than half of the GSR that the District Court assigned
to him. U.S.S.G. ch. 5, pt. A (sentencing table). Moreover, the
government does not disagree that remand is often appropriate when
the District Court incorrectly calculates the GSR. See Williams
v. United States, 503 U.S. 193, 203 (1992).
Still, the government is right that remand is not
appropriate when there are sufficient indications in the record
that, "despite application of an erroneous Guidelines range,"
there is no "reasonable probability of a different outcome." See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016).
And, the government argues, that is the case here because the
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District Court's sentencing rationale was expressly based on its
concerns about permitting Henderson's immediate release from
prison and thus would not have changed even if the GSR had been
lower.
The government emphasizes in this regard that the
District Court explained at sentencing that, because Henderson had
just spent six years in prison, it was "not appropriate" for him
to leave prison immediately and that instead, his sentence would
provide a "structured transition." And, the government notes, the
District Court expressly found that this "structured transition"
required keeping Henderson in prison for three additional weeks in
order to "allow probation to find a bed for [Henderson] in a
halfway house in a residential re-entry," where Henderson would
then serve the first three months of his three-year supervised
release period.
To be sure, the District Court never expressly stated
that it would have imposed the same sentence even if the GSR were
the lower one that would have applied but for the application of
§ 2K2.1(a)(4)(A). Cf., e.g., United States v. Acevedo-Hernández,
898 F.3d 150, 172 (1st Cir. 2018) ("In light of this clear
indication in the record that the court would have imposed the
same sentence even without any of the alleged errors, we find that
any errors in calculating [the defendant's] GSR would have been
harmless."). But, the District Court's clearly stated sentencing
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rationale -- that the sentence of time served and supervised
release of three years was necessary for Henderson's "structured
transition" from prison and that the additional three weeks'
imprisonment was necessary so that the Probation Office could find
Henderson space at a halfway house -- could equally apply to
sentencing under a lower BOL of 12. Henderson has failed to show
prejudice or to rebut the government's argument that any error was
harmless.
IV.
For the foregoing reasons, Henderson's conviction and
sentence are affirmed.
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