United States v. Bezanson-Perkins

United States Court of Appeals
For the First Circuit

No. 04-1293

UNITED STATES OF AMERICA,

Appellee,

v.

JOSHUA BEZANSON-PERKINS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Paul Garrity for appellant.
Donald A. Feith, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief for
appellee.

November 23, 2004
 LYNCH, Circuit Judge. Joshua Bezanson-Perkins pled

guilty to one count of aiding and abetting a bank robbery in

violation of 18 U.S.C. §§ 2 and 2113(a). He entered his plea after

the district court denied his motion to suppress his confession.

His plea bargain expressly reserved the right to appeal the court's

suppression order, which he does here.

The theory presented is an unusual one: that a defendant

who has given a valid Miranda waiver may seek to suppress his later

voluntary and uncoerced statements to the police on the grounds

that (arguably) misleading statements by the police invalidated his

Miranda waiver. On the facts, we reject this theory and affirm.

I.

On the afternoon of September 5, 2002, a man armed with

what appeared to be a handgun robbed the Citizen's Bank in

Hooksett, New Hampshire. After the robber left the bank, he was

seen by two customers as he ran toward a car, a white Geo Storm,

leaned into the vehicle to speak with the driver, and then ran off.

One customer wrote down the car's license plate number and then

watched the Geo Storm drive across the street and park at a Dunkin'

Donuts. The driver got out and went into the Dunkin' Donuts.

Police arrested the driver of the car, who was the defendant

Bezanson-Perkins.

Bezanson-Perkins was taken to the Hooksett Police

Station. He was interviewed by two police officers, Detective Owen

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Gaskell and Bow Police Chief Rod Forey. Bezanson-Perkins consented

to having the interview recorded, after which he was read his

Miranda rights and given a form which he initialed and signed

indicating he understood those rights. See Miranda v. Arizona, 384

U.S. 436 (1966) (holding that certain warnings must be given before

a suspect's statements made during custodial interrogation may be

admitted in evidence).

After being told of his right to a lawyer, and that if he

could not afford a lawyer one would be appointed for him, but

before signing his waiver form, Bezanson-Perkins asked: "It's not

going to happen right now[?]" Gaskell replied:

No, we don't have [a lawyer] right now. We
don't have one sitting there. If you, you can
refuse to answer any questions or stop giving
this statement at any time you wish, which
means that if you decide that at some point
you want to stop, you stop and we won't do it
any further.

Bezanson-Perkins then replied: "Okay." He then stated that he

understood his rights and agreed to waive them and talk to the

officers. Bezanson-Perkins concedes that his waiver at this time

was valid.

After executing his waiver form, Bezanson-Perkins then

had the following exchange with the officers:

JBP: So if I requested a lawyer, there would
be one that would come right now?

OG: No.

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 RF: Well what we'd do is if you didn't want
to answer a question, you don't answer
the question.

OG: Ah go ahead and explain it to him if
you want, whatever um,

RF: Yeah I mean, the bottom-line Josh, you
already told me you know the system.
You've been through the system. You
have a right to an attorney if you
want. You'd have to hire your own
lawyer. We'd like to ask you some
questions. And actually we just want
to get your version of what happened.
Your involvement, you, you're telling
me, you mentioned something before
Detective Gaskell got in here that you
know, you['re] a convicted felon and
you['re] in a white car and you're at
the wrong place at the wrong time, well
that's what we want to talk about. We
want to get your version. If we have a
question that you don't want to answer,
say I don't want to answer that. It's
as simple as that.

JBP: Okay.

The statement "You'd have to hire your own lawyer" is grist for his

later argument.

After this exchange, the officers began to question

Bezanson-Perkins about the bank robbery. At the beginning of the

interrogation, Bezanson-Perkins maintained that he did not know

anything about the bank robbery. The police then told Bezanson-

Perkins some of the evidence they were going to examine to see if

that was true, such as checking his car to see if the actual

robber's prints were on it, and viewing videos from the bank.

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Bezanson-Perkins responded by saying that regardless of whether he

was involved or not, he was going to get convicted:

I'm gonna have to go to trial, because I know
you're not gonna let me go. I'm not . . .
stupid. You know. I know I'm not going home.
[I'm] gonna have to take the trial or take a
plea bargain. A plea bargain says oh, well if
you just say you did it, then you can go home
a little bit earlier. So I'll only do . . .
five more years, but if I don't say I did it,
then I'll probably go to trial, all the . . .
jurors are just gonna sit there, twiddle their
thumbs, not listen to anything I said and
. . . give me seven and a half to fifteen.
You think I am a . . . retard? I know I ain't
going home for a long . . . time!

Detective Forey, in turn, then asked: "[I]f you know

that, why you telling me the story?" He told Bezanson-Perkins that

there was a difference in culpability between someone who is merely

the driver in a robbery, and someone who actually commits the

robbery. He also told Bezanson-Perkins that they had a lot of

evidence against him that led to his arrest. When Bezanson-Perkins

asked how that happened, Forey said: "How about a plate number.

How about witnesses. How about driving around the bank. How about

going the other way. How about you pick the bank that there

happen[ed] to be a state trooper sitting having a coffee behind in

the field."

Defendant also objects to certain police statements about

the truth helping him, which were made in the context described

above. Forey next told Bezanson-Perkins the situation as the

police saw it:

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 If you're the wheel man and the guy that went
in and pointed the gun at all those people
with all those cameras going on. Drop[ped]
the clip and did everything you shouldn't do
in a bank robbery. If you're that guy, you
may be [in serious trouble]. So do you think
you[r] buddy that's all muddy now from running
through and getting tracked down by the dogs,
that you know is sitting down there, do you
think he's gonna tell us what happened?
Because that was like, well my daughter gets
caught with her hand in the . . . cookie jar.
I mean his is a done deal. Do you want to
help yourself out? That's entirely up to you.
We're not, the old days when we used to beat
people up and take their lunch money is long
over, but . . . it's up to you. You know what
happened. We know what happened, but you need
to either come to the plate and say you know
what Rob, I was the wheelman and I didn't go
in the bank. That puts you in a whole
different situation and when we talk to your
PPO, and when we talk to the dist, the county
attorney, there is a different scenario here
and you know it. You know it. You know the
guys that go into state prison and do short
time, easy time and you['re] right, two, two
and a half years. You could do, you could do
that standing on your freaking head.

About an hour into the interrogation, Officer Gaskell

again explained the situation to Bezanson-Perkins:

If I had the powers to work things and [make]
deals I would believe me. I wish I [could]
cuz it would make my job so much easier. To
sit there and you've already said it, you can
help yourself or attempt to help yourself by
whatever you say and you give us to at
whatever level. I can't tell you how much
that will help you but there's the bottom
line.

Also near the end of the first round of questioning, Forey told

Bezanson-Perkins that "[t]he truth opens doors," and that "the

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truth from you is what I need. And if I have that then I can run

and then do what I can to help you." Later on, Forey stated:

You know and I know whether you like it or not
or whether you agree with it or not, the truth
does help and it is going to help you in the
long run and if your ultimate goal is to get
back –- as soon as possible, the only thing
that's going to help you is the truth.

These statements form the last prong of defendant's argument.

Bezanson-Perkins continued to say that he could not tell the

officers anything about the robbery, and they ended the first round

of questioning.

After the first round of questioning, Bezanson-Perkins

was booked and made a telephone call to his mother. About two and

a half hours after the previous interrogation ended, the officers

began interviewing Bezanson-Perkins again. They did not reread him

his Miranda warnings, although they did advise him that he

continued to have his constitutional rights. Bezanson-Perkins

stated he understood, then confessed to the crime. That confession

is the subject of the motion to suppress.

II.

On November 7, 2002, Bezanson-Perkins was indicted on one

count of aiding and abetting a bank robbery in violation of 18

U.S.C. §§ 2 and 2113(a). Bezanson-Perkins subsequently moved to

suppress his confession. The parties agreed not to have a hearing

on the issue, as the entire interrogation had been tape recorded

and the tape was admitted into evidence. Bezanson-Perkins first

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argued that the officers undermined his Miranda waiver of his right

to counsel by falsely telling him, in the first interrogation

session after he had signed the waiver form, "You'd have to hire

your own lawyer." Further, he argued that the police undermined

his Miranda waiver of his right not to incriminate himself by

repeatedly telling him that the truth would help him. Finally, he

argued to the district court that these deceptive statements

rendered his confession involuntarily coerced.

On September 26, 2003, the district court denied the

motion to suppress the confession. The district court held that

defendant was properly read his Miranda rights and executed a

knowing, intelligent, and voluntary waiver of those rights prior to

any custodial interrogation. Further, the court held that Forey's

post-waiver statement that "[y]ou'd have to hire your own lawyer,"

was not erroneous but incomplete. The court stated that it was

true that if the defendant wanted the lawyer of his choice (his

"own lawyer"), he would have to hire that lawyer. The court held

that Bezanson-Perkins was told, and understood, that if he could

not hire his own lawyer, one would be provided for him. The court

also found that Bezanson-Perkins never invoked his right to counsel

during the interrogation. Finally, the court held that the

interviewing tactics employed by the officers did not rise to the

level of coercion.

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 Bezanson-Perkins appeals only the first ruling of the

district court. He argues that his earlier valid Miranda waiver

was retroactively invalidated by the officers' subsequent

statements that Bezanson-Perkins would need to "hire [his] own

lawyer" and that the truth would help him. Further, he raised for

the first time on this appeal the claim that certain enhancements

to his sentence based on findings by the district judge violated

his right to a jury trial as stated in Blakely v. Washington, 124

S. Ct. 2531 (2004).

III.

Bezanson-Perkins frames his argument in terms of Miranda

rights. Miranda established a baseline rule, now determined to be

of constitutional dimension, as to certain warnings1 which must be

given before a suspect's custodial statements may be admitted into

evidence. Dickerson v. United States, 530 U.S. 428, 439-40 (2000).

The issue before us is a narrow one. Bezanson-Perkins

does not appeal the district court's ruling that his confession was

not coerced by the officers. Further, Bezanson-Perkins does not

contend that, after waiving his right to remain silent and right to

counsel, he subsequently attempted to invoke those rights and was

1
"These warnings (which have come to be known colloquially
as 'Miranda rights') are: a suspect 'has the right to remain
silent, that anything he says can be used against him in a court of
law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.'" Dickerson v. United States,
530 U.S. 428, 435 (2000) (quoting Miranda, 384 U.S. at 479).

-9-
prevented from doing so by the officers. He does not claim that he

later asked to be provided counsel and was denied counsel. And

Bezanson-Perkins concedes that his initial waiver of his Miranda

rights was a valid waiver. Thus, the question before us, as

posed, is whether the officers' later statements to Bezanson-

Perkins's question about the timing of his access to a lawyer, as

well as their repeated statements that the truth would help him,

served to invalidate his previously knowing, intelligent, and

voluntary waiver of his Miranda rights so as to warrant suppression

of the confession.

We review factual findings by the district court for

clear error. United States v. Downs-Moses, 329 F.3d 253, 267 (1st

Cir. 2003). We review the determination of whether a waiver of

rights was voluntary de novo. Id.

Determining the validity of a Miranda waiver usually

entails two separate inquiries. The waiver must be both voluntary,

and knowing and intelligent. Moran v. Burbine, 475 U.S. 412, 421

(1986). A waiver is voluntary when "it [is] the product of a free

and deliberate choice rather than intimidation, coercion, or

deception." Id. A waiver is knowing and intelligent when "made

with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it." Id.

Both inquiries are judged based on the "totality of the

circumstances surrounding the interrogation." Id. (internal

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quotation omitted). Assuming there has been no Miranda violation,

then the standard shifts: "[O]nly confessions procured by coercive

official tactics should be excluded as involuntary [under Colorado

v. Connelly, 597 U.S. 157, 167 (1986)]. 'Free choice' is no longer

a touchstone . . . ." United States v. Byram, 145 F.3d 405, 407

(1st Cir. 1998) (citations omitted).

There are surely situations in which statements made

after a valid Miranda waiver are subject to suppression, for a

number of reasons. For example, police may not get a Miranda

waiver and then beat a confession out of a suspect and hope to have

the confession admitted into evidence. Such a confession would be

procured by coercive tactics. See Mincey v. Arizona, 437 U.S. 385,

401 (1978). Nor may police, against the suspect's wishes, induce

intoxication or a drugged state such that any further statement by

the suspect is coerced. See id.

Nor may police after a valid Miranda waiver disregard a

suspect's later clear request for a lawyer and deny him counsel, or

an assertion of the right to remain silent and continue to question

him. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also

Davis v. United States, 512 U.S. 452, 459 (1994). To the extent

Bezanson-Perkins attempts to imply his later colloquy was a request

for counsel, he does not meet the Davis standard that the request

be clear and unequivocal. Davis, 512 U.S. at 459.

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 None of these situations is our situation here, and

Bezanson-Perkins makes no real claim that the statements fall into

any of these categories.

Rather, his complaint is that, after a valid Miranda

waiver, during the interrogation the police misled or tricked him.

He attempts to tie this allegation to the Miranda doctrine,

implicitly arguing that if he had a lawyer, he would not have

confessed, and was misled into confessing by the police statements.

This is a categorically different type of argument than the types

described above, and its relationship to Miranda is attenuated. We

stress that there is no claim that he was misled or tricked into

waiving his Miranda rights initially or that he later attempted to

assert those rights and was forced to continue with the

interrogation.

That makes this case different in kind from cases on

which he relies. In Hart v. Attorney Gen. of the State of Florida,

323 F.3d 844 (11th Cir. 2003), the court held that the confession

of a 17 year old should be suppressed when the suspect, despite

having signed a Miranda waiver form, later evidenced confusion

about his rights and seemed to want an attorney, and then was lied

to by the police about the effects of not having counsel. The

court held that this later interlude meant that by the time the

confession was given, it could not say that the defendant had

voluntarily, knowingly, and intelligently waived his Miranda

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rights, and that police deception concerning those rights rendered

his confession obtained in violation of Miranda. Id. at 895. Even

more afield is United States v. Beale, 921 F.2d 1412 (11th Cir.

1991), which found that police deception prior to defendant's

signing of a Miranda waiver rendered that waiver invalid. Id. at

1435.

Indeed, we doubt the argument, on the particular facts

here, has much to do with Miranda at all. Instead, it seems to be

an argument that a defendant, particularly one who, having

knowingly waived his Miranda rights, and who has not asked for a

lawyer thereafter, should not be subjected to duplicitous

statements by police because of the risk he will make incriminating

statements. See Hart, 323 F.3d at 894 ("The reason for requiring

a lawyer during custodial interrogation is to protect a suspect's

privilege against self-incrimination."). There is an obvious

tension in the argument: defendant voluntarily and validly waived

the presence of counsel and right to remain silent, thus subjecting

himself to the risk of his self-incriminating responses to police

misstatements not corrected by counsel; but he nonetheless seeks to

immunize himself from that risk afterward by saying that because

the police made misstatements, he can invalidate the waiver. It is

doubtful, under Moran, that any such rule exists. 475 U.S. at 421;

see also Hart, 323 F.3d at 898 (Vinson, J., dissenting).

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 Even assuming some limited protection is available for

statements made by suspects in response to untrue statements by

police, that doctrine does not help Bezanson-Perkins here. As

Byram noted, some types of trickery could amount to coercion --

such as where police falsely say they will take a suspect's child

away unless the suspect cooperated. See Lynumn v. Illinois, 372

U.S. 528, 534 (1963); Byram, 145 F.3d at 408. That is far from

this case. And "trickery is not automatically coercion." Byram,

145 F.3d at 408. The Supreme Court has rejected challenges to

confessions on the basis that they were procured by deceits.

Frazier v. Cupp, 394 U.S. 731 (1969). Here, the premise that the

police used deception itself fails. The district court held that

the police statements, when understood in context, were not untrue

and that determination was not erroneous.

We turn to the particulars.

A. Right to Counsel

Bezanson-Perkins first argues that by telling him: "You'd

have to hire your own lawyer," Officer Forey invalidated his

previous waiver by misleading him as to the scope of his right to

counsel.

The law about police statements made before a Miranda

waiver is obtained does not help Bezanson-Perkins. His own claim,

concerning statements made after a valid waiver, is that much

harder to make. In Duckworth v. Eagan, 492 U.S. 195 (1989), an

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officer read the defendant the following Miranda warnings from a

waiver form:

Before we ask you any questions, you must
understand your rights. You have the right to
remain silent. Anything you say can be used
against you in court. You have a right to
talk to a lawyer for advice before we ask you
any questions, and to have him with you during
questioning. You have this right to the
advice and presence of a lawyer even if you
cannot afford to hire one. We have no way of
giving you a lawyer, but one will be appointed
for you, if you wish, if and when you go to
court. If you wish to answer questions now
without a lawyer present, you have the right
to stop answering questions at any time. You
also have the right to stop answering at any
time until you've talked to a lawyer.

Id. at 198. The defendant signed this waiver form, and then

confessed to the crime. The Court held that these instructions did

not mislead the defendant as to his Miranda rights. Id. at 200-01.

It disagreed with the Court of Appeals' conclusion that the phrase

"if and when you go to court" implied that the defendant could not

have a lawyer present during questioning unless he hired his own.

Id. at 203. Rather, this language accurately described the

procedure for appointment of counsel in Indiana, which occurs at

defendant's initial appearance in court. Id. at 204. Further, the

Court held that this statement merely answers in advance the

frequent inquiry of a defendant as to the timing of receipt of

court-appointed counsel. Id.

The district court here correctly concluded that the

statement "You'd have to hire your own lawyer" did not mislead

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Bezanson-Perkins as to the scope of his right to counsel or the

consequences of having waived that right. This statement occurred

after Bezanson-Perkins had been accurately read his Miranda rights,

signed the waiver form, and asked a clarifying question about the

timing of court-appointed counsel and was told no lawyer was

immediately available. The officers told Bezanson-Perkins that he

had the right to an attorney, including the right to an attorney

during questioning. Further, they told him that one would be

provided for him if he could not afford one. Given this context,

as the district court held, the police statement was not false or

misleading. The statement was made in response to a second

question about whether a lawyer, if Bezanson-Perkins wanted one,

"would come right now." He had just been told there was not one

"right now," yet he asked again. The statement "You'd have to hire

your own lawyer" was true in that, if Bezanson-Perkins wanted a

lawyer immediately, a lawyer of his own choosing, he would need to

hire one. The officer then promptly told Bezanson-Perkins that if

he did not want to answer any question absent a lawyer, he did not

have to do so. In context, Bezanson-Perkins's claim is without

force.

B. Right to Remain Silent

Bezanson-Perkins further argues that the officers, by

continually telling him to be truthful and to help himself,

invalidated his waiver of his right to remain silent, by misleading

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him as to the consequences of having waived that right. In

essence, Bezanson-Perkins's claim is that the officers' constant

pleas to him to be truthful so deceived him about whether the truth

could hurt him that he was rendered unaware that if he did confess,

that confession would be used against him in court.

Bezanson-Perkins's claim clearly lacks merit. It also

defies common sense. At the beginning of the interrogation,

Bezanson-Perkins, independently of the officers questioning him,

stated that he understood the sentencing consequences of confessing

and signing a plea bargain as opposed to maintaining his innocence

and going to trial. The officers merely confirmed this situation

by laying out the strong evidence they had, and then asking him

why, given his understanding of things, he did not take the path

that was likely to lead to a lower sentence. Cf. United States v.

Pelton, 835 F.2d 1067, 1073 (4th Cir. 1987) (detailing evidence

against suspect and telling suspect that police would inform

prosecutor that suspect cooperated does not render confession

involuntary). There is no evidence that this manner of questioning

led Bezanson-Perkins to believe that his confession would somehow

not be used against him.

Bezanson-Perkins maintains that the most problematic

statements by the officers came at the end of his first round of

interrogation. Here, Forey told Bezanson-Perkins that "[t]he truth

opens doors," and that "the truth from you is what I need. And if

-17-
I have that then I can run and then I do what I can to help you."

Later on, Forey stated:

You know and I know whether you like it or not
or whether you agree with it or not, the truth
does help and it is going to help you in the
long run and if you[r] ultimate goal is to get
back –- as soon as possible, the only thing
that's going to help you is the truth.

Again, the context in which these statements were made

shows that the officers were telling Bezanson-Perkins that

cooperating with them would be better for Bezanson-Perkins in terms

of a lower sentence. In fact, the government ultimately agreed not

to oppose Bezanson-Perkins's motion for downward departure based on

his prompt acceptance of responsibility and recommended a sentence

at the low end of the guidelines which was accepted by the district

court at sentencing. His confession led to his plea, which led to

his lower sentence. Given the strong evidence against him, it is

unclear why Bezanson-Perkins is now trying to vacate his favorable

sentence in favor of the risks of a much larger sentence.

IV.

Bezanson-Perkins also challenges certain enhancements to

his sentence based on factual findings by the district judge at

sentencing as a violation of his right to have all elements of his

crime found by a jury beyond a reasonable doubt. See Blakely v.

Washington, 124 S.Ct. 2531 (2004). The base offense level for

aiding and abetting a bank robbery is 20. U.S.S.G. § 2B3.1(a).

The district court found a two-level enhancement because the crime

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involved taking the property of a financial institution, id.

§ 2B3.1(b)(1), and a three-level enhancement because the crime

involved the possession and/or brandishing of a dangerous weapon,

id. § 2B3.1(b)(2)(E). Thus, after Bezanson-Perkins's three-level

reduction for acceptance of responsibility, id. § 3E1.1(a)-(b),

Bezanson-Perkins's offense level was 22.

Bezanson-Perkins's criminal history score based solely on

his prior convictions was four. The district court enhanced this

level by two points because Bezanson-Perkins was on parole at the

time he committed his crime, id. § 4A1.1(d), and enhanced by one

point because the offense was committed within two years of his

release for a felonious sexual assault, id. § 4A1.1(e). His

ultimate criminal history score was thus seven, placing him in

criminal history category IV. Bezanson-Perkins contends that he

should be sentenced based on an offense score of 17 (base offense

level of 20 minus his departure for acceptance of responsibility)

and criminal history category III (based on his base criminal

history score of four).

Because Bezanson-Perkins did not challenge the

constitutionality of his sentencing enhancements below, our review

is for plain error. See United States v. Cordoza-Estrada, 385 F.3d

56, 59 (1st Cir. 2004). Under plain error review, the challenging

party has the burden of showing (1) an error, (2) that is plain,

(3) that affects substantial rights (i.e. the error was not

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harmless), and (4) that seriously undermines the fairness,

integrity, or public reputation of judicial proceedings. United

States v. Olano, 507 U.S. 725, 732 (1993). Bezanson-Perkins's

claim fails at least to satisfy the second element of plain error

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

2004).

The conviction and sentence are affirmed.

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