United States v. Jones

United States Court of Appeals
For the First Circuit

No. 11-1764

UNITED STATES,

Appellee,

v.

ANTHONY JONES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Howard, Ripple,* and Selya, Circuit Judges.

Stuart W. Tisdale, Jr. for appellant.
Renee M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty, II, United States Attorney, was on brief for
appellee.

December 5, 2012

*
Of the Seventh Circuit, sitting by designation.
 RIPPLE, Circuit Judge. Anthony Jones was indicted on one

count of possessing five or more grams of cocaine base, in

violation of 21 U.S.C. § 841(a)(1). After his motion to suppress

evidence was denied, he entered a conditional plea of guilty. See

Fed. R. Crim. P. 11(a)(2). Mr. Jones was sentenced to 180 months’

imprisonment.1 He now timely appeals the denial of his suppression

motion as well as the use of certain prior convictions in

calculating his sentence guideline range.2

I

BACKGROUND

On May 29, 2008, Agent Ernest MacVane, assigned to a Drug

Enforcement Administration (“DEA”) task force, received an

anonymous call from an individual who claimed to have used cocaine

and to have purchased it recently at a house located at 31 Saugus

Street in Portland, Maine. In the course of the call, the

individual supplied the following details. A red and black Saab or

Audi located at that address was associated with drug sales. Five

individuals were at the address: Maria Strong and four

African-American males from Massachusetts. Two of the males were

armed with handguns. The four men used the house to store drugs

1
The district court’s jurisdiction was predicated on
18 U.S.C. § 3231.
2
Our jurisdiction is predicated on 28 U.S.C. § 1291. See
United States v. Dubose, 579 F.3d 117, 119 (1st Cir. 2009); United
States v. Jackson, 544 F.3d 351, 356 (1st Cir. 2008).

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and money, and the caller had seen about one ounce of crack cocaine

while in the house. A silver car parked on an adjacent street

contained a large quantity of cocaine base.3

On the same day, Agent MacVane went to the address to

corroborate the information. The car in the driveway matched the

caller’s description and a silver Toyota with Massachusetts plates

was parked on a cross street within view of the back of the house.

By conducting a records search, Agent MacVane learned that the

silver Toyota belonged to Lemmie Nunes. Agent MacVane knew that,

two weeks before receiving the caller’s tip, agents had arrested

Kamaludin Odowa for distributing drugs out of a motel room which

had been rented by Nunes. Officers recovered cocaine and money

from Odowa, but Nunes had not been arrested.4 A records check

further confirmed that Maria Strong lived at 31 Saugus Street. Two

years earlier, Strong had been arrested in a case in which

Agent MacVane had seized four to five ounces of crack cocaine from

her companion. Strong herself never was charged in connection with

that incident.5

A drug-sniffing dog and its handler were dispatched to

the scene. The handler, posing as a resident walking his dog,

3
R.87 at 3-4.
4
R.87 at 4; R.93 at 210-11.
5
R.87 at 4; R.93 at 249-50.

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walked past the Toyota two times but did not circle it. The dog

did not alert on the car.

While agents observed the location, an African-American

male left the house, went to the silver Toyota and drove the short

distance back to 31 Saugus Street where three other males, two

African-American and one Caucasian, got into the car and the

vehicle drove off. When the vehicle pulled into a gas station, it

was surrounded quickly by four law enforcement vehicles. Five

agents participated in the stop. All wore civilian clothes with

their badges displayed. Two agents, wearing vests that said

“police,” approached the Toyota with guns drawn. The agents

testified that they considered the operation to be “high risk”

because the caller had indicated that at least two of the

individuals were armed. Each agent was tasked with detaining one

of the Toyota’s occupants. Agent MacVane was assigned to detain

Mr. Jones who was sitting in the front passenger seat. He

approached Mr. Jones with his gun drawn, shouted “police” and

ordered Mr. Jones to put his hands up. When Mr. Jones did not

raise his hands, Agent MacVane opened the car door and repeated the

instructions. Mr. Jones did not comply and instead moved his right

hand behind his back and towards his waist.6 Fearing Mr. Jones had

a weapon, Agent MacVane kicked Mr. Jones in the chest and grabbed

his arm to pull him out of the vehicle. Because Mr. Jones was

6
R.87 at 6.

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still not compliant, Agent MacVane called for help. He got

Mr. Jones out of the car and put him face down on the pavement.

Agents David Bruni and Paul Wolf came to assist. Agent MacVane

struck Mr. Jones’s shoulder at least twice in an attempt to get his

cooperation. With the help of the other agents, Mr. Jones

eventually was restrained by linking two sets of handcuffs. The

agents testified that they did not hear Mr. Jones complain of

breathing difficulties, but Mr. Jones testified that he repeatedly

yelled that he was unable to breathe. Only twenty to thirty

seconds elapsed from the time Mr. Jones saw Agent MacVane to when

Mr. Jones was handcuffed.

Once Mr. Jones was secured, Agent Bruni conducted a

visual search for weapons and noticed that Mr. Jones’s pants had

slid down around his buttocks and the corner of a plastic bag was

sticking out of the waistband of his underwear. Agent Bruni had

seen other suspects hide drugs in this manner, and, based on his

experience, he believed the plastic bag in Mr. Jones’s underwear

contained drugs. Agent Bruni pointed out the bag to Agent MacVane

and removed it. The bag, weighing 46.8 grams, contained thirty-six

smaller bags of cocaine base. An ambulance was called for

Mr. Jones because he was having difficulty breathing.7

Agent MacVane accompanied Mr. Jones to the hospital and testified

that, at one point, Mr. Jones’s pants slipped down again and

7
R.87 at 8.

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Agent MacVane had to pull them up because Mr. Jones was still

handcuffed. No other drugs were found at the scene, and the

vehicle’s other occupants were released.

In contrast to the agents’ testimony, Mr. Jones testified

that his pants did not slip down during the incident and that he

felt someone pull at the top of his pants, reach into his

underwear, and pull out the package of crack cocaine from “really

down deep between [his] buttocks.”8 He and his girlfriend, Melissa

Roman, testified that Mr. Jones’s pants fit well and could not slip

down because he wore a belt.9 Mr. Jones also testified, however,

that he could retrieve the cocaine by reaching his own arm down his

pants without loosening his belt.10

II

DISCUSSION

A.

We turn first to Mr. Jones’s contention that the district

court erred in denying the motion to suppress. He presents several

arguments to support this contention. First, he maintains that the

agents did not have reasonable suspicion to stop the silver Toyota.

Second, he contends that, even if there were reasonable suspicion

8
R.94 at 148.
9
R.87 at 12-14.
10
R.87 at 15.

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to conduct the stop, the seizure was a de facto arrest because the

agents’ conduct exceeded the scope necessary to conduct an

investigatory stop and therefore had to be based on probable cause,

not reasonable suspicion. Third, Mr. Jones asserts that the

district court’s factual finding, that agents saw a corner of the

plastic bag and did not reach into Mr. Jones’s pants, was clearly

erroneous. We shall address each of these contentions.

1.

In the district court and now before this court, the

Government justifies the initial stop of the vehicle on the ground

that, at the time the stop was made, the agents had an adequate

basis to conduct such an investigative stop. We therefore begin by

setting forth the established principles that govern investigative

stops.

The stop of an automobile and the detention of its

occupants constitutes a seizure under the Fourth Amendment. Whren

v. United States, 517 U.S. 806, 809-10 (1996); Delaware v. Prouse,

440 U.S. 648, 653 (1979). To satisfy the requirement of the Fourth

Amendment that all such seizures be “reasonable,” U.S. Const.

Amend. IV, police officers conducting an investigatory stop must

have “reasonable suspicion.” They “must be able to point to

specific and articulable facts which, taken together with rational

inferences from those facts,” justify an intrusion on a private

person. Terry v. Ohio, 392 U.S. 1, 21 (1968). Officers’ “hunches”

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are insufficient for reasonable suspicion. Id. at 22. In

determining whether an officer had reasonable suspicion, we look to

the facts “available to the officer at the moment of the seizure or

the search.” Id. We must assess the “totality of the

circumstances.” United States v. Arvizu, 534 U.S. 266, 273 (2002)

(internal quotation marks omitted). See also United States v.

Monteiro, 447 F.3d 39, 43 (1st Cir. 2006). Although reasonable

suspicion requires a “lesser showing” than probable cause, we focus

on the same factors. Alabama v. White, 496 U.S. 325, 328-29

(1990). As the district court recognized, we summarized these

principles in United States v. Chhien, 266 F.3d 1, 6 (1st Cir.

2001):

Reasonable suspicion, as the term implies, requires
more than a naked hunch that a particular person
may be engaged in some illicit activity. By the
same token, however, reasonable suspicion does not
require either probable cause or evidence of a
direct connection linking the suspect to the
suspected crime. Reasonable suspicion, then, is an
intermediate standard--and one that defies precise
definition. Its existence must be determined case
by case, and that determination entails broad-based
consideration of all the attendant circumstances.
In mulling those circumstances, an inquiring court
must balance “the nature and quality of the
intrusion on personal security against the
importance of the governmental interests alleged to
justify the intrusion.” To keep this balance true,
the court must make a practical, commonsense
judgment based on the idiosyncracies of the case at
hand.

(citations omitted).

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 Assessing information provided by third parties has long

been a subject of litigation, and the basic principles governing

this particular inquiry also are well established. Information

provided to police by third parties may create reasonable suspicion

if the information contains sufficient “‘indicia of reliability.’”

White, 496 U.S. at 328. The past reliability of an informant is a

significant factor permitting reliance on information that would

not otherwise be sufficiently corroborated. See United States v.

Taylor, 985 F.2d 3, 5-6 (1st Cir. 1993) (noting that an informant’s

detailed, first-hand description of the area and a statement as to

the informant’s past reliability was sufficient to support a

warrant). Anonymous tips, such as the one at issue here, present

special problems and require particular caution on the part of both

law enforcement agents and reviewing courts. In Florida v. J.L.,

529 U.S. 266 (2000), the Supreme Court stated succinctly the reason

for this caution:

Unlike a tip from a known informant whose
reputation can be assessed and who can be held
responsible if her allegations turn out to be
fabricated, an anonymous tip alone seldom
demonstrates the informant's basis of
knowledge or veracity.

Id. at 270 (citations omitted) (internal quotation marks omitted).

Therefore, when, as here, the information comes from an anonymous

informant, law enforcement authorities must take steps to

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corroborate the information.11 In this context, courts have long

recognized that a tip predicting future behavior, not known to the

general public, may be worthy of significant weight to the extent

that it demonstrates that the informant has some inside information

or familiarity with the defendant’s affairs. White, 496 U.S. at

332. Ascertaining by investigation that the person implicated by

the tip has a relevant criminal history is helpful, although not

sufficient in itself, to create reasonable suspicion. Monteiro,

447 F.3d at 47 (noting that corroboration may “come[] in part from

an individual’s gang affiliation and/or recent arrests for conduct

related to the activity referred to in a tip”).

“Corroboration of apparently innocent activity can

establish the reliability of the informant because the activity

might come to appear suspicious in light of the initial tip.”

United States v. Greenburg, 410 F.3d 63, 69 (1st Cir. 2005) (citing

Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). However,

because a determination of reasonable suspicion must be based on

the totality of the circumstances, both law enforcement and

reviewing courts must take into consideration the facts that

suggest the tip was reliable and those that indicate a lack of

11
Alabama v. White, 496 U.S. 325, 331–32 (1990) (justifying
a Terry stop with an anonymous tip that was corroborated by
specific details and predictive information); United States v.
Monteiro, 447 F.3d 39, 44-46 (1st Cir. 2006) (discussing the legal
requirements and need to corroborate information from anonymous
callers).

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reliability. Monteiro, 447 F.3d at 46.12 The reliability of an

anonymous source may be undermined when police attempts to

corroborate instead disprove information provided by the anonymous

source.13

With these basic principles in mind, we turn to the case

before us today. As we already have noted, the tip in this case

was from an anonymous informant. Much of the information conveyed

in the tip was easily ascertainable by a third party with no

particular information about the concealed criminal activity of the

persons implicated by the tip. This information, standing alone,

cannot support a determination of reasonable suspicion. As the

Supreme Court noted in J.L., to support a determination of

reasonable suspicion, the tip must “be reliable in its assertion of

illegality, not just in its tendency to identify a determinate

person.” 529 U.S. at 272. Some of the information supplied by the

informant did provide information responsive to this requirement.

First, it provided information about the illegal activity that was

12
The court in Monteiro did note that the situation may be
different when there is an imminent threat to public safety, but in
that case, a week had passed since the alleged shooting, police had
discredited the information, and police did not have any reason to
suspect that the vehicle posed a current threat to the public.
447 F.3d at 49.
13
For instance, the anonymous source in Monteiro, 447 F.3d
at 43-44, told police investigating a shooting on Eastman Street
that a vehicle with a particular license plate had been involved in
a shooting on Shirley Street, but police attempts to investigate a
shooting on Shirley Street suggested that no such shooting had
occurred.

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taking place at the house in question and further stated the basis

for that knowledge. Specifically, the informant reported that he

had purchased contraband drugs at the home. Second, the informant

stated a specific connection between the occupants of the house and

the silver Toyota parked in the area. The informant stated that

the vehicle was owned by an occupant of the house and was used to

store drugs. This information would not be available to the casual

third-party observer.

The agents correctly did not act immediately on this

information, but first set out to corroborate it. They met with

mixed success. They independently verified, through motor vehicle

records, the location of the home and that Maria Strong lived at

that address. They also verified that the silver Toyota was parked

at a location, in the words of the district court, “unusually far

from 31 Saugus Street, but not unusually so if it was being used by

drug traffickers who would want to keep the car from being

associated with 31 Saugus Street while keeping it visible from that

house.”14 On the other hand, a dog trained to alert in the presence

of drugs did not do so when walked by the silver Toyota during an

atypical canine search.15

14
R.87 at 4.
15
Agent MacVane’s original affidavit did not indicate that
the canine search was limited, R.93 at 253-54, but during the
suppression hearing he testified that the sniff in this case was
unusual because the handler was not in uniform and the dog did not
circle the car. R.93 at 214-15. We also note that, in any event,

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 The agents independently ascertained that the occupant of

the house, Maria Strong, had been connected to drug activity

(although never charged) two years earlier. They also ascertained

that the owner of the silver Toyota was Nunes, who rented a motel

room used in another drug trafficking case two weeks before

Agent MacVane received the informant’s tip. Both cocaine and money

had been discovered in the course of that arrest. Continued

surveillance permitted the agents to observe an African-American

male leave the house on Saugus Street, get into the silver Toyota

around the corner and drive around the block to the Saugus Street

address. This observation provided independent corroboration of

the connection of the silver Toyota to the house. Notably,

however, the later observation of three men entering the car

demonstrated that the informant’s report that all four men were

African-American was not entirely correct since one of them was

Caucasian.

In the end, by the time the agents stopped the silver

Toyota and its occupants, they had established that a person

connected to a drug transaction in the past had within her house

four individuals, one of whom had rented a room occupied by a

the failure of the dog to alert does not vitiate reasonable
suspicion. It was simply a factor for the district court to
consider. See United States v. Jodoin, 672 F.2d 232, 236 (1st Cir.
1982), abrogated on other grounds, Bloate v. United States,
130 S. Ct. 1345 (2010); see also United States v. Ramirez, 342 F.3d
1210, 1213 (10th Cir. 2003).

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person recently arrested in a drug transaction. They also had

observed the silver Toyota parked in a manner that was compatible

with the drug storage reported by the informant. That use had not

been confirmed, however, during a walk-by examination by a

drug-sniffing dog. They also knew that the informer had been wrong

with respect to the race of one of the men.

We must now assess whether, at the moment that the silver

Toyota was stopped, all these circumstances would warrant a person

of “reasonable caution in the belief that the action taken was

appropriate.” Terry, 392 U.S. at 22 (internal quotation marks

omitted). Although the case is admittedly a close one, we believe

that the district court correctly determined that the agents acted

within the confines of existing law. As a threshold matter, we

point out that the district court correctly understood and

articulated the governing principles of law. Most importantly, the

court understood the importance of the agents obtaining sufficient

corroboration of the anonymous tip and specifically pointed out

that, unlike the tip in J.L., the information described here

included the basis of the informant’s information and permitted at

least a partial corroboration of the informant’s account. The

agents were able to verify that a connection existed between the

house at 31 Saugus Street and the silver Toyota, and that the house

and the car were occupied and owned by individuals earlier

implicated in the very illegal activity that the informant had

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described, to his own potential detriment, as taking place in the

house. We believe that this information would permit a reasonable

drug enforcement agent to suspect, in light of his experience, that

criminal activity was underway and that further inquiry of those

suspected was required. Under these circumstances, the agents were

permitted to stop the silver Toyota.

2.

Having determined that there was reasonable suspicion to

stop the vehicle in which Mr. Jones was a passenger, we must now

examine whether the agents’ actions exceeded the scope of a

permissible Terry stop. Like the determination of whether

reasonable suspicion exists, assessment of whether the agents

exceeded the permissible scope of intrusion is a difficult,

fact-intensive inquiry. United States v. Young, 105 F.3d 1, 7 (1st

Cir. 1997) (“Parsing whether any given seizure constitutes an

arrest or a lesser seizure, however, proves a difficult task.”);

United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994) (“There

is no scientifically precise formula that enables courts to

distinguish between investigatory stops, which can be justified by

reasonable suspicion, and other detentions that the law deems

sufficiently coercive to require probable cause--detentions that

are sometimes called ‘de facto arrests.’”).

At the outset, we have held that a de facto arrest occurs

when “‘a reasonable man in the suspect’s position would have

-15-
understood his situation,’ in the circumstances then obtaining, to

be tantamount to being under arrest.” Zapata, 18 F.3d at 975.

However, in making this assessment, we also must keep in mind that

police conducting a Terry stop are entitled to take reasonable

measures to protect their own safety and taking such measures does

not transform a Terry stop into an arrest. See United States v.

Chaney, 647 F.3d 401, 409-10 (1st Cir. 2011) (noting circumstances

that may justify officer action); United States v. Walker, 924 F.2d

1, 4 (1st Cir. 1991) (stating that “[an officer’s] concerns for his

own safety [are] of paramount importance in assessing the

appropriateness of the action taken”). We must take an objective

look at the totality of the circumstances and assess “the

reasonableness of the detaining officer or officers’ actions in

response to developing conditions.” Chaney, 647 F.3d at 409.

Thus, measures such as the use of handcuffs,16 drawn weapons,17

placing suspects face down on the ground,18 the presence of multiple

16
United States v. Chaney, 647 F.3d 401, 409 (1st Cir. 2011)
(noting that while handcuffs and drawn weapons suggest de facto
arrest, neither factor alone is determinative).
17
Id.; United States v. Taylor, 162 F.3d 12, 21 (1st Cir.
1998) (holding that no de facto arrest occurred when at least one
officer had a drawn weapon).
18
Taylor, 162 F.3d at 21-22 (determining that no de facto
arrest occurred even though occupants of the car claimed that they
“were placed face-down on the ground and pat-frisked”).

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officers,19 and police cruisers positioned to block exits,20 do not

necessarily turn a stop into a de facto arrest.

The situation that confronted us in United States v.

Taylor, 162 F.3d 12 (1st Cir. 1998), is fairly analogous to the

stop involving Mr. Jones and, consequently, it provides us with

significant guidance in resolving this case. In Taylor, police

learned from an informant that two individuals, armed with

handguns, were delivering drugs in a brown Acura. Id. at 15.

Based on the tip, three police cruisers converged on the suspects’

car while it was stopped at a red light. One officer drew his

weapon and ordered the driver to turn off the engine while other

officers removed the vehicle’s three occupants, placing them

face-down on the ground and frisking them for weapons. Ten to

twelve officers and an unknown number of police vehicles eventually

reported to the scene. Id. at 16, 21. Noting that the police

reasonably believed the suspects were potentially very dangerous,

we held that no de facto arrest had occurred. The officers “were

entitled ‘to take swift measures to discover the true facts and

19
Id. (holding that no de facto arrest occurred when there
were ten to twelve officers on the scene and the egress was blocked
by police cruisers); United States v. Quinn, 815 F.2d 153, 156–58
(1st Cir. 1987) (holding that no de facto arrest occurred where
police cruisers blocked suspect’s egress, five officers were
present, and interrogation took twenty to twenty-five minutes).
20
See supra note 19.

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neutralize the threat of harm if it materialized.’” Id. at 21

(quoting Terry, 392 U.S. at 30).

Here, as in Taylor, it was reasonable for the DEA agents

to believe that the stop was a “high risk” operation involving

armed drug traffickers. As we have noted earlier, our cases make

clear that officer safety is paramount and, when reasonably

necessary based on information available to law enforcement, police

officers may use multiple vehicles, multiple officers, handcuffs

and drawn weapons without turning a Terry stop into a de facto

arrest.21 The district court correctly determined that the stop was

not a de facto arrest.

3.

We next turn to the district court’s finding that the

agents saw the drugs in plain view. On a motion to suppress,

“[t]he district court’s credibility findings should be accorded

deference and overturned only if [we have] a definite and firm

conviction that a mistake has been committed.” United States v.

Marshall, 348 F.3d 281, 284 (1st Cir. 2003).

Here, the district court found that the testimony of

Agents MacVane and Bruni was more credible than the testimony of

Mr. Jones and his girlfriend, Ms. Roman. The agents testified that

Mr. Jones’s pants had slid down below his buttocks and a portion of

a knotted plastic bag could be seen sticking out of his underwear.

21
See supra notes 16-19.

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In contrast, Mr. Jones testified that he felt an agent reach down

his pants and pull the bag of cocaine from between his buttocks.

In deciding that the agents were more credible, the district court

doubted the testimony of Mr. Jones and Roman that Mr. Jones’s pants

fit firmly around his waist because Mr. Jones testified that he

retrieved the cocaine by reaching his own arm into his pants

without loosening his belt.22

Mr. Jones argues that the district court’s finding was

clearly erroneous because Agent Wolf, the supervising agent who

also assisted in securing Mr. Jones, testified that he did not see

the bag, and thus the bag must not have been visible to the other

two agents. This testimony does not necessarily contradict the

other agents’ testimony because Agent Wolf left as soon as

Mr. Jones was secure and Agent Bruni spotted the bag only after

conducting a visual search for weapons.

22
R.87 at 12-14, 25-26. The district court additionally
noted some conflict between what Mr. Jones told Officer Duff on
May 30, 2008, and Mr. Jones’s and Roman’s testimony at the
suppression hearing on November 13, 2008, including whether
Mr. Jones and Roman were still together and where Mr. Jones was
during the three days prior to May 29. Roman testified that she
and Mr. Jones were together at the time and that he was with her
during the three nights before May 29. She later testified that he
was not with her on May 28. Mr. Jones initially told Officer Duff
that he was staying at 31 Saugus Street because he and Roman
recently had separated. R.87 at 12, 14-15.

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 4.

In summary, we hold that the police had reasonable

suspicion to stop the vehicle in which Mr. Jones was riding. We

further hold that the manner in which the agents conducted the stop

was reasonable in light of their legitimate safety concerns and,

therefore, the stop did not escalate into a de facto arrest. The

district court’s finding that the drugs on Mr. Jones’s person were

in plain sight is not clearly erroneous. The motion to suppress

the evidence was correctly denied.

B.

Mr. Jones also challenges three decisions related to his

sentence. First, Mr. Jones asserts that the district court erred

in determining that his 1997 conviction for assault and battery of

a police officer (“ABPO”) under Massachusetts General Laws chapter

265, § 13D was a “crime of violence” for purposes of a career

offender determination. Next, Mr. Jones maintains that his 1997

felony drug conviction is too old to be counted as a career

offender predicate. Finally, Mr. Jones argues that his sentence

should not have been enhanced under 21 U.S.C. § 841(b)(1)(B)(iii)

because the existence of the 1997 drug conviction was not proven

“beyond a reasonable doubt.” We address each of these arguments in

turn.

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 1.

Mr. Jones first argues that his conviction for ABPO

should not have been used in determining his career offender status

because it is not a “crime of violence.” U.S.S.G. § 4B1.1.

“Whether a prior conviction qualifies as a predicate offense under

U.S.S.G. § 4B1.1 is a question of law that we review de novo.”

United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).

Mr. Jones asserts that his conviction for ABPO cannot be

counted because the statute of conviction is a general prohibition

on assault and battery of any public employee. As a general

prohibition, the statute includes offenses which are no more than

offensive touching in addition to those which involve a “serious

potential risk of physical injury to another” as required by

U.S.S.G. § 4B1.2(a). In the alternative, Mr. Jones argues that the

charging document was deficient because, although it alleges that

Mr. Jones “did assault and beat Ptl. K. Lavita, a police officer,”

it does not allege that Mr. Jones knew that Officer Lavita was a

police officer.

We have rejected both arguments in previous opinions. In

United States v. Sumrall, 690 F.3d 42, 43 (1st Cir. 2012), we

emphasized that it is settled law that “all of the branches of the

statute,” including recklessness, qualify as a crime of violence

under U.S.S.G. § 4B1.2(a). We relied upon United States v. Dancy,

which noted that the additional elements required for

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Massachusetts’ ABPO statute “ensure that the conduct criminalized

by the ABPO statute is ‘purposeful.’” 640 F.3d 455, 468 (1st Cir.

2011) (citing Mass. Gen. Laws ch. 277, § 79).

As to the knowledge requirement, although the indictment

does not allege that Mr. Jones knew that the victim was a police

officer, we previously have stated that, in Massachusetts,

conviction for APBO does require knowledge of the victim’s status

as a police officer. See Sumrall, 690 F.3d at 44; Dancy, 640 F.3d

at 468 n.13 (citing Commonwealth v. Francis, 511 N.E.2d 38, 41–42

(Mass. App. Ct. 1987); Commonwealth v. Rosario, 430 N.E.2d 866, 866

(Mass. App. Ct. 1982)); see also Commonwealth v. Deschaine, 932

N.E.2d 854, 860-61 (Mass. App. Ct. 2010), rev. denied, 936 N.E.2d

434 (Mass. 2010). Thus, the fact of conviction establishes both

that Mr. Jones assaulted a police officer and that he knew the

victim was a police officer. “Because knowledge is an element of

ABPO, any professed lack of knowledge is, therefore, at most, the

basis for a collateral claim that must be raised in a state, not a

federal, court.” Sumrall, 690 F.3d at 44. The district court

correctly included Mr. Jones’s conviction of ABPO in determining

his status as a career offender.

2.

Mr. Jones next submits that his 1997 state drug

conviction is too old to be considered in determining his status as

a career offender. The applicable time period is a legal

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determination of the Guidelines’ meaning and scope that we review

de novo. See United States v. Bryant, 571 F.3d 147, 153 (1st Cir.

2009).

Mr. Jones was convicted and sentenced for a felony drug

offense on December 17, 1997, approximately ten years and five

months before the “commencement of the instant offense.” U.S.S.G.

§ 4A1.2(e). Initially, all but three months of the sentence were

suspended, but Mr. Jones violated probation and, in April 1998, he

was ordered to serve the remaining fifteen months. Mr. Jones

argues that, because he initially only served three months of his

eighteen-month sentence, the underlying conviction cannot be

counted because it was more than ten years before the commencement

of the current offense. He argues that § 4A1.2(k)(1) (requiring

the sentencing court to combine the original sentence to any

sentence imposed after a probation violation) applies only to

computing the criminal history points and not for determining

whether a conviction should be included in a career offender

calculation. We cannot accept this argument.

Under U.S.S.G. § 4A1.2(e), a conviction that occurred

more than ten years before the instant offense is not counted if

the resulting sentence was thirteen months or less. If the

sentence was over thirteen months, the conviction is counted if it

was imposed or resulted in the defendant’s being incarcerated

within fifteen years of the instant offense. Id. Under

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§ 4A1.2(k)(1), if the defendant violated probation and received an

additional sentence, the length of the sentence is determined by

“add[ing] the original term of imprisonment to any term of

imprisonment imposed” as a result of the probation violation. “The

resulting total is used to compute the criminal history points,”

U.S.S.G. § 4A1.2(k)(1), but, like other definitions in § 4A1.2, it

is also used in making career offender determinations. See

U.S.S.G. § 4B1.2 cmt. 3 (“The provisions of § 4A1.2 (Definitions

and Instructions for Computing Criminal History) are applicable to

the counting of [career offender] convictions under § 4B1.1.”);

United States v. Van Anh, 523 F.3d 43, 61 (1st Cir. 2008) (“[T]he

career offender guidelines treat sentences imposed pursuant to a

revocation of parole as part of the original sentence.” (citing

U.S.S.G. § 4A1.2(k)(1))).

Applying these rules to Mr. Jones’s case, we determine

the appropriate application period by combining the portion of

Mr. Jones’s sentence that was not suspended (three months) with the

sentence that was imposed after he violated probation (fifteen

months) for a total of eighteen months. Because the total sentence

for the 1997 drug conviction was over thirteen months, the

fifteen-year application period applies and the district court

properly considered the conviction in determining Mr. Jones’s

career offender status.

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 3.

Mr. Jones’s final argument is that his sentence should

not have been enhanced under 21 U.S.C. § 841(b)(1)(B)(iii) because

the evidence was insufficient to prove the existence of the 1997

felony drug conviction beyond a reasonable doubt, as required by

§ 851(c).

A defendant convicted of possessing twenty-eight or more

grams of a substance containing cocaine base under 21 U.S.C.

§ 841(a)(1) is subject to a statutory minimum sentence of ten years

if he has a prior felony drug conviction.23 See 21 U.S.C.

§ 841(b)(1)(B). The Government is required to file an information

giving notice of the prior convictions to be relied on, and if the

defendant denies the prior conviction, the sentencing court must

hold a hearing. Id. § 851(a)-(c). During the hearing, the

Government has the burden of proving any factual disputes related

23
Mr. Jones committed the offense in 2008. The district
court ruled on the issue of enhancement under § 841(b)(1)(B) in
November 2009, prior to enactment of the Fair Sentencing Act of
2010, which increased the amount of cocaine needed to trigger the
ten-year minimum for prior offenders from five grams to
twenty-eight grams. The parties apparently did not revisit the
issue when Mr. Jones was sentenced in June 2011; however, the
change applies to defendants whose crimes preceded the effective
date of the Act. See Dorsey v. United States, 132 S. Ct. 2321,
2335 (2012). Although the indictment alleged only that Mr. Jones
possessed “five grams or more,” he agreed in his sentencing
memorandum and briefs that the drug quantity is 46.8 grams of
cocaine, thus he still qualifies for the enhancement.

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to the prior conviction “beyond a reasonable doubt.” 21 U.S.C.

§ 851(c).24

Here, the Government timely filed an information listing

the 1997 felony drug conviction. During a pre-sentencing hearing,

the Government presented certified records from Massachusetts state

court, which included an indictment and computer docket sheet

showing Mr. Jones’s guilty plea, sentence and revocation of

probation. There were two sets of certified records, presumably

because the Government sent two separate requests. Each set of

records was in a blue folder with Mr. Jones’s name and the case

number on the outside, but one folder listed the date as December

1997 with Associate Justice James D. McDaniel presiding, while the

other folder had an April 1998 date with Regional Administrative

Justice Elizabeth B. Donovan presiding. Mr. Jones agreed that the

documents were a true copy of Massachusetts court records, he

agreed that he was the person listed in the court documents as

being convicted in 1997, and he presented no evidence contradicting

the records. Mr. Jones initially stated that he did not deny the

fact of the conviction, but after conferring with counsel, stated

24
The statute does not require proof beyond a reasonable
doubt unless there is a factual dispute, and it is not at all
certain that a factual dispute actually exists here. During a
colloquy with the court, Mr. Jones agreed that he had been
convicted in 1997, but, after a discussion with counsel he stated
that he denied the conviction “on a legal basis,” not on a factual
basis. R.209 at 5-6.

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that he denied his conviction “on a legal basis.”25 Mr. Jones’s

counsel argued that, although the records were true copies, the

Government’s evidence was insufficient because there were few

records from the court, the folders contained different dates, and

there was no certification that the records were correct. Defense

counsel did not dispute that they were true copies, but suggested

that there could have been a mistake in the court’s records or that

the records could have been affected by a computer virus.26

The district court held that the discrepancy did not

undermine the accuracy of the records because the blue cover

folders were not part of the certified documents and it was

apparent that in one case the person preparing the folder used the

date of Mr. Jones’s original guilty plea while the person preparing

the folder to respond to the second request used the date on which

Mr. Jones was resentenced after he violated probation.27

Mr. Jones now argues that the records were insufficient

to prove the conviction beyond a reasonable doubt because: (1) the

documents were not certified by one having personal knowledge of

the conviction; (2) the certification does not individually list

every document in the file; and (3) there are discrepancies in the

documents. Appellant’s Br. 55-57. These arguments fail.

25
R.209 at 5-6.
26
R.209 at 30, 32-34.
27
R.153 at 5-6.

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 A prior conviction can be proved through a variety of

documents, including “certified convictions or other comparable

judicial records that detail the fact of conviction,” Bryant, 571

F.3d at 155, or even a printout of an electronic docket, United

States v. McKenzie, 539 F.3d 15, 19 (1st Cir. 2008). Although most

cases addressing this issue involve sentencing where the standard

of proof is a preponderance of the evidence, such records also can

be used to prove the existence of a conviction beyond a reasonable

doubt, as required by the statute at issue here. Courts regularly

rely on other courts’ records, and we know of no case requiring the

record to be certified by one with personal knowledge of the actual

proceedings. Such a requirement would require federal courts to

subpoena the prosecutors, defense counsel, judges or court clerks

that were actually present in the prior proceeding–-an undue and

unnecessary burden.

Nor do the cases require that the certification

individually list every document in the file. The cases cited by

Mr. Jones do not suggest otherwise. Bryant, 571 F.3d at 153,

involved a situation where the Government failed to provide any

judicial record showing the fact of conviction, and United States

v. Kellam, 568 F.3d 125, 144-45 (4th Cir. 2009), involved court

records that did not clearly identify the defendant. Neither

situation is present here.

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 Mr. Jones’s third challenge to the certified records has

more potential, but it also fails. Discrepancies in certified

documents could raise doubts as to the defendant’s identity, see

id. (noting discrepancies and missing information in the conviction

records, such as different name spellings and redacted personal

information), and conceivably, under certain circumstances, could

raise doubts as to the type of crime in the prior conviction.

Here, however, the district court was correct that the

“discrepancy” in the cover folders did not create a reasonable

doubt as to the fact of Mr. Jones’s conviction. The cover folder

is not part of the certified record and, even if it were, the

different dates on the cover folders correspond to the dates of

Mr. Jones’s initial conviction and resentencing.

Mr. Jones argues for the first time on appeal that the

records cannot be believed because the indictment charges a

violation of chapter 94C § 32A(c) while the docket reflects a

violation of chapter 94C § 32A(a). Failure to raise an argument to

the district court may constitute waiver, precluding our review; it

also may result in forfeiture, where review is only for plain

error. See United States v. Morgan, 384 F.3d 1, 7-8 (1st Cir.

2004). In the latter situation, Mr. Jones bears the burden of

proving “(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected the defendant’s substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

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reputation of judicial proceedings.” United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). See also United States v. Ahrendt,

560 F.3d 69, 76 (1st Cir. 2009). Mr. Jones has not addressed these

requirements, but even if he had, we would not conclude that the

district court committed plain error. The “discrepancy” does not

necessarily make the documents unreliable, cf. United States v.

Sanders, 470 F.3d 616, 623-24 (6th Cir. 2006) (holding that

discrepancies in court documents, listing the charge as robbery,

aggravated robbery, and burglary, did not make the documents

unreliable), nor does it cast doubt on whether Mr. Jones has a

prior felony drug conviction. Section 32A(a) prohibits

“manufactur[ing], distribut[ing], dispens[ing], or possess[ing]

with intent to manufacture, distribute or dispense a controlled

substance in Class B of section thirty-one.” Mass. Gen. Laws ch.

94C § 32A(a). Section 32A(c) prohibits identical conduct related

to phencyclidine and a subgroup of controlled substances listed in

the same “Class B of section thirty-one.” Id. § 32A(c). Thus,

depending on the substance involved, Mr. Jones could have been

charged under either or both statutes, and a conviction under

either statute would qualify him for an enhancement under 21 U.S.C.

§ 841(b)(1)(B)(iii). Cf. Sanders, 470 F.3d at 624 (“[R]egardless

of whether Sanders was convicted of ‘robbery’ or ‘burglary’ in

80CR421, the conviction would have counted as a predicate violent

felony under the ACCA.”).

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 Thus, the district court properly considered the 1997

felony drug conviction in enhancing Mr. Jones’s sentence under

21 U.S.C. § 841(a)(1)(B)(iii).

Conclusion

The judgment of the district court is affirmed.

AFFIRMED

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