United States v. Browning

F I L E D
United States Court of Appeals
Tenth Circuit

JUN 14 2001
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 00-8055

MICHAEL SEAN BROWNING,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 99-CR-140-B)

Michael Reese, Wiederspahn & Reese, P.C., Cheyenne, Wyoming, for Defendant-
Appellant.

Lisa E. Leschuck, Assistant United States Attorney (David D. Freudenthal, United
States Attorney, with her on the brief), Cheyenne, Wyoming, for Plaintiff-
Appellee.

Before BRISCOE, PORFILIO, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Defendant-appellant Michael Browning entered a conditional guilty plea to

a charge of being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). On appeal, Browning challenges the denial of his

two pretrial motions and several aspects of his sentence. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

I

On August 9, 1999, a 911 dispatcher in Wyoming received a phone call

from a woman claiming to have just been assaulted and to have just exited the

vehicle in which the assault took place. The caller gave her name (Deanna Pine),

specified her location (a pay phone at Mule Creek Junction), described the vehicle

(a tan Blazer with Arizona license plates), and identified her alleged assailant

(Michael Browning). The dispatcher obtained the number of the pay phone and

called back two or three times to speak further with Pine. From the subsequent

calls, the dispatcher learned the caller’s date of birth, details of the alleged

assault, and that Browning had driven off with the caller’s property.

Based on that information Deputy Darrell Frye was dispatched to find

Browning’s vehicle. Frye located the vehicle and began a pursuit with his police

lights on. During the pursuit, the officer lost sight of Browning’s vehicle for a

few seconds. Eventually, the officer forced Browning to stop.

While stopped, Browning confirmed that he had been in an altercation with

Pine and that he had some of her “stuff” in his car. (III R. at 25–26.) On his own

initiative, Browning unloaded Pine’s belongings, including an open binoculars

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case that contained a vial with drug residue. After receiving Browning’s consent

to a search of his vehicle, officers discovered a set of triple-beam scales, which,

according to the government, are frequently used to weigh drugs. Browning was

then arrested and advised of his Miranda rights. The total time from the initial

stop to Browning’s arrest was approximately twenty minutes.

Based on statements Browning made the day after his arrest, Wyoming

police officers walked along the shoulder of the highway near where Browning

was pulled over and found a gun. Browning’s fingerprints were found on the gun.

At his request, Browning met with DEA agents on August 18, 1999.

Before the start of the meeting, Browning again was advised of his Miranda

rights. The DEA agents clearly stated that they were promising nothing to

Browning. (See, e.g., I R. Doc. 31 Ex. 1 at 4 (“I’m telling you right now there is

absolutely no promise from us what so ever [sic] to do anything for you.”).)

During the interview, Browning stated that the gun found by police was his and

that he had possession of it as a result of an altercation in Phoenix. He also

indicated that he left Arizona and went to South Dakota with Pine to protect her

while she “cooked” methamphetamine. (Id. at 28–29.)

Browning pleaded guilty to Wyoming state charges for possession of

methamphetamine and aiding and abetting an unlawful clandestine laboratory

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operation. 1 He also was charged in federal court with being a felon in possession

of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Browning filed

two motions to dismiss the federal charges, arguing: (1) that the indictment

should be dismissed because the phone call from Pine did not provide probable

cause to stop his car and (2) that use of the statements he made to the DEA agents

violated Fed. R. Crim. P. 11(e)(6), which renders inadmissible statements made

during plea negotiations. The district court denied both of these motions.

Browning then entered into a conditional plea agreement, preserving the issues

raised in his motions for appellate review.

At sentencing, the district court determined that Browning’s base offense

level should be twenty because he had a prior controlled substance conviction.

See U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2 (defining terms). The district judge

increased Browning’s base offense level by two levels because the firearm

Browning possessed was stolen, see id. § 2K2.1(b)(4), and by four levels because

Browning possessed the firearm in connection with another felony offense (i.e.,

providing protection to Pine while she was manufacturing methamphetamine), see

id. § 2K2.1(b)(5).

Browning’s Wyoming convictions are currently being appealed to the
1

Wyoming Supreme Court.

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 II

We review the denial of a motion to dismiss the indictment for an abuse of

discretion. See United States v. Giles, 213 F.3d 1247, 1248–49 (10th Cir. 2000).

In addressing the threshold issue of evidence suppression, the trial court’s factual

findings are reviewed for clear error, viewing the evidence in the light most

favorable to the government. United States v. Long, 176 F.3d 1304, 1307 (10th

Cir. 1999). “The credibility of witnesses, the weight to be given evidence, and

the reasonable inferences drawn from the evidence fall within the province of the

district court.” Id. However, the ultimate determination of Fourth Amendment

reasonableness is reviewed de novo. Id.

A. Legality of Browning’s Arrest

Relying on Florida v. J. L., 529 U.S. 266 (2000), Browning argues that the

911 call from Pine did not provide an adequate basis for stopping him. In J. L.,

police received an anonymous call reporting that a young black male standing at a

particular bus stop and wearing a plaid shirt was carrying a gun. Id. at 268.

Police went to the bus stop and saw three black males, one of whom, the

defendant, was wearing a plaid shirt. Id. Apart from the tip, the officers had no

reason to suspect J. L. of illegal conduct. The police did not see a firearm or

observe any unusual movements. Id. One of the officers frisked J. L. and seized

a gun from his pocket. Id. The Court held that the defendant’s Fourth

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Amendment rights were violated because he was stopped based solely on

information from “a call made from an unknown location by an unknown caller.”

Id. at 270. The anonymous tip leading to the arrest of J. L. lacked the necessary

indicia of reliability. Id. at 274.

The circumstances of Browning’s arrest are vastly different. Pine

identified herself by giving her name, birth date, and location; gave a telephone

number that allowed the dispatcher to call her back; indicated that she had been in

the car with Browning; and stated that she had been the victim of the alleged

crimes leading to the stop. In J. L., “[a]ll the police had to go on . . . was the bare

report of an unknown, unaccountable informant who neither explained how he

knew about the gun nor supplied any basis for believing he had inside information

about J. L.” Id. at 271. Here, by contrast, the police had a caller who explained

how she knew about the wrongdoing and provided a basis showing she had

“inside information.” That information supplied the police with reasonable

suspicion justifying Browning’s initial stop pursuant to Terry v. Ohio, 392 U.S. 1,

30 (1968).

Browning also complains about the length of the stop. However, viewing

the facts in the light most favorable to the government, we do not see any

excessiveness in the duration of the stop. During the twenty- to thirty-minute

stop, Browning moved his car to a safer location, voluntarily pulled out Pine’s

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belongings, consented to a search of his car, and presumably answered questions

throughout. Given that Browning had been accused of assault and theft, the

twenty- to thirty-minute stop, including unpacking and searching a vehicle, was

neither unreasonable nor beyond the scope of the stop. Consequently, the district

court properly denied Browning’s motion to dismiss the indictment.

B. Admissibility of Browning’s Statements to DEA Agents

Browning claims that his statements to DEA agents are inadmissible under

Fed. R. Crim. P. 11(e)(6)(D), which prohibits admission of “any statement made

in the course of plea discussions with an attorney for the government which do

not result in a plea of guilty.” We have not previously reviewed a similar claim.

Other courts of appeal analyze alleged Fed. R. Crim. P. 11(e)(6) violations

somewhat inconsistently. Compare United States v. Young, 223 F.3d 905, 908

(8th Cir. 2000), cert. denied, 121 S. Ct. 1133 (2001) (“As a mixed question of law

and fact, we ordinarily review de novo a district court’s determination that a

statement was given in the course of plea negotiations.” (emphasis added)), with

United States v. Sitton, 968 F.2d 947, 956 (9th Cir. 1992) (“The district court’s

determination of whether the parties were engaged in plea discussions is a factual

finding reviewed for clear error.” (emphasis added)). We need not decide the

precise standard of review for this claim because Browning’s argument would fail

regardless of the standard employed.

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 To begin with, Browning does not fall within the plain language of the rule

because he was not speaking with “an attorney for the government.” Fed. R.

Crim. P. 11(e)(6)(D). Seeking to avoid the rule’s plain language, Browning cites

a Ninth Circuit case for the proposition that the rule applies where a “‘defendant

exhibits a subjective belief that he is negotiating a plea.’” (Appellant’s Br. at 17

(citing Sitton, 968 F.2d at 957).) Browning misreads Sitton, which holds that

Rule 11(e)(6) extends “only to discussions with a prosecutor rather than with law

enforcement agents.” Id. Sitton’s discussion about reasonable subjective belief is

an additional requirement for invoking Rule 11(e)(6). See id. (“In addition,

conversations with government agents do not constitute plea discussions unless

the defendant exhibits a subjective belief that he is negotiating a plea, and that

belief is reasonable under the circumstances.” (emphasis added) (citation

omitted)).

The Eighth Circuit has extended the literal language of Rule 11(e)(6) to

cover plea discussions with law enforcement officials “with express authority

from a government attorney” to conduct plea negotiations. United States v.

Lawrence, 952 F.2d 1034, 1037 (8th Cir. 1992). That construction does not help

Browning because he points to no evidence that the DEA agents with whom he

spoke had express authority to conduct plea negotiations or that they represented

they had such authority.

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 III

Browning claims the district court made several errors in sentencing. “We

review for clear error the district court’s factual findings regarding sentencing

and review de novo its legal interpretation of the Guidelines.” United States v.

Maldonado-Acosta, 210 F.3d 1182, 1183 (10th Cir. 2000).

A. Prior Felony Conviction

U.S.S.G. § 2K2.1(a)(4)(A) provides for a base offense level of twenty if

“the defendant had one prior felony conviction of either a crime of violence or a

controlled substance offense.” The district court utilized Browning’s Wyoming

state conviction for aiding and abetting an unlawful clandestine laboratory

operation to arrive at this offense level. Browning argues that “the state

conviction arose out of the same offense/conduct” (Appellant’s Br. at 21) as his

federal charge for felon in possession; thus the state charge was not a prior

conviction as required by § 2K2.1(a)(4)(A).

Browning’s argument has some appeal because the firearm was found the

day after he was arrested on the state charges and was obviously dropped from his

car just before he was arrested. It would thus seem that Browning’s possession of

the firearm was included in the conduct forming the basis for his state charges.

However, Browning’s admissions during his meeting with DEA agents undercut

his argument. At that meeting, he admitted to getting the gun in Arizona before

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he entered Wyoming and before he began protecting Pine while she manufactured

methamphetamine.

These facts are analogous to those in United States v. Banashefski, 928

F.2d 349, 350–52 (10th Cir. 1991). In that case the defendant was convicted in

state court of possession of a stolen vehicle and then charged in federal court as a

felon in possession of a firearm. Because there was evidence that the defendant

possessed the firearm before being seen in possession of the stolen car, we held

the violation of the federal weapons possession statute “involved separate conduct

within the meaning of [U.S.S.G.] § 4A1.2—conduct which was not part of the

‘instant offense.’” Id. at 352. Browning’s admission that he possessed a firearm

prior to entering Wyoming demonstrates this was a “separable instance of

conduct” from the criminal acts leading to his Wyoming charges. Id. at 349; cf.

United States v. Butler, 966 F.2d 559, 564 (10th Cir. 1992) (“Neither offense is

dependent upon conduct associated with the other and neither shares a common

element of proof, thus the relevant conduct underlying those convictions is

severable . . . .”).

B. Enhancement for Controlled Substance Violation

The district court determined that Browning’s Wyoming conviction

constituted a “controlled substance offense” pursuant to U.S.S.G.

§ 2K2.1(a)(4)(A). “Controlled substance offense” is defined as “an offense under

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federal or state law . . . that prohibits the manufacture, import, export,

distribution, or dispensing of a controlled substance . . . or the possession of a

controlled substance . . . with intent to manufacture, import, export, distribute, or

dispense.” U.S.S.G. § 4B1.2(b). The application notes to § 4B1.2(b) further

clarify that “controlled substance offense” includes “[u]nlawfully possessing a

listed chemical with intent to manufacture a controlled substance,” “[u]nlawfully

possessing a prohibited flask or equipment with intent to manufacture a controlled

substance,” and “[m]aintaining any place for the purpose of facilitating a drug

offense.” U.S.S.G. § 4B1.2(b), cmt. n.1. With this guidance, we have no doubt

that Browning’s Wyoming conviction for aiding and abetting a lab manufacturing

methamphetamine constitutes a “controlled substance offense.”

C. Use of a Firearm in Connection with Another Offense

U.S.S.G. § 2K2.1(b)(5) provides for a four-level increase in offense level if

“the defendant used or possessed any firearm . . . in connection with another

felony offense.” Browning challenges the application of U.S.S.G. § 2K2.1(b)(5)

on two bases: (1) he did not possess the firearm “in connection with” another

felony offense and (2) application of that section constitutes double counting of

the Wyoming state conviction because it was used to enhance his sentence under

both U.S.S.G. § 2K2.1(a)(4)(A), as discussed above, and under U.S.S.G.

§ 2K2.1(b)(5).

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 As to Browning’s first point, “we have generally held that if the weapon

facilitated or had the potential to facilitate the underlying felony, then

enhancement under § 2K2.1(b)(5) is appropriate.” United States v. Bunner, 134

F.3d 1000, 1006 (10th Cir. 1998). Further “[a] weapon’s proximity to narcotics

may be sufficient to provide the nexus necessary to enhance a defendant’s

sentence under § 2K2.1(b)(5).” Id. The evidence cited by the government

indicates that the firearm was used in connection with another felony offense:

Browning admitted that he provided security for Pine while she manufactured

methamphetamine. This admission is sufficient to support an enhancement under

§ 2K2.1(b)(5).

This Circuit has not considered whether using the same felony under both

U.S.S.G. §§ 2K2.1(a)(4)(A) and 2K2.1(b)(5) to enhance a sentence constitutes

double counting. However, under our established jurisprudence for evaluating

double counting claims under the Sentencing Guidelines, Browning’s claim must

fail.

We summarized the general standard governing an allegation of double

counting in United States v. Rucker, 178 F.3d 1369, 1371 (10th Cir. 1999):

This court has held that “[i]mpermissible double counting or
impermissible cumulative sentencing [under the Guidelines] occurs
when the same conduct on the part of the defendant is used to
support separate increases under separate enhancement provisions
which necessarily overlap, are indistinct, and serve identical
purposes.” United States v. Flinn, 18 F.3d 826, 829 (10th Cir. 1994).

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 Importantly, the last three conditions are stated as a conjunctive
requirement; that is, all three must be met for the use of separate
enhancements to constitute impermissible double counting.

A successful double counting claim must demonstrate that the two enhancements

necessarily overlap in every conceivable instance, not just that they overlap often.

See id. at 1373 (rejecting a double counting claim where the challenged

enhancements overlap “nearly every time,” but where such overlap was “not

always the case”). Looking at the enhancements at issue, the § 2K2.1(b)(5)

enhancement for use of a weapon in connection with another felony offense does

not necessarily overlap with the § 2K2.1(a)(4) enhancement for a prior conviction

of a controlled substance offense: the § 2K2.1(b)(5) felony need not be a prior

“controlled substance offense” as is required under § 2K2.1(a)(4).

D. Downward Departure

The district court denied Browning’s request for a downward departure

based on Browning’s difficult childhood. As a general matter, U.S.S.G. § 5H1.12

prohibits downward departures for “[l]ack of guidance as a youth and similar

circumstances indicating a disadvantaged upbringing.” Browning seeks to avoid

application of § 5H1.12 by citing a case granting a downward departure to a

defendant who had suffered extreme psychological and physical abuse as a child.

See United States v. Ayers, 971 F. Supp. 1197 (N.D. Ill. 1997). Ayers

persuasively distinguishes “exceptionally cruel . . . psychological and emotional

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abuse” constituting “a form of sadistic torture” from the generalized lack of

guidance or neglect that § 5H1.12 prohibits as a basis for departure. Id. at

1200–01; see also United States v. Rivera, 192 F.3d 81, 84–85 (2d Cir. 1999)

(noting that several circuits have “held that a downward departure may be

appropriate in cases of extreme childhood abuse” and citing cases).

Despite the analytical soundness of Ayers, Rivera, and other similar cases,

we do not have jurisdiction to apply them to Browning’s claim. Our review of a

sentencing court’s refusal to grant a downward departure is narrow.

[C]ourts of appeals cannot exercise jurisdiction to review a
sentencing court’s refusal to depart from the sentencing guidelines
except in the very rare circumstance that the district court states that
it does not have any authority to depart from the sentencing guideline
range for the entire class of circumstances proffered by the
defendant. . . . This exception does not apply when a sentencing
court concludes under the defendant’s particular circumstances that it
does not have the authority to depart.

United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998) (citations omitted).

The district court’s statement that it lacks authority to grant the requested

downward departure must be unambiguous. See United States v. Fortier, 180

F.3d 1217, 1231 (10th Cir. 1999). When review is proper, we examine the

sentencing decision de novo. See Castillo, 140 F.3d at 887.

Browning’s counsel failed to address the threshold question of whether this

Court has jurisdiction to review the refusal to depart. The government points to

the crucial portion of the district judge’s comments during Browning’s

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sentencing: “It’s really a long record and pretty serious. On that account, there’s

no way I could lawfully depart downward in this case. The Tenth Circuit

opinions plain just don’t permit it, and I don’t think there’s any—any way that

would hold up by which I could . . . .” (V R. at 52.) The district judge’s use of

the word “lawfully” and his reference to “Tenth Circuit opinions” seem to

indicate that he made “a legal decision that [he] had no authority to depart,”

which is the type of decision over which we have jurisdiction. Fortier, 180 F.3d

at 1231. Nevertheless, our prior precedent forecloses review. In Castillo, we

held the following statement unreviewable: “If there’s any way that the folks up

above can say I can depart, I will depart, but I don’t see how I can do it.” 140

F.3d at 888. We see no principled way to distinguish the statement in Castillo

from the one at issue here. Additionally, the district judge’s reference to

Browning’s “long record” implies that the refusal to depart was based on “the

defendant’s particular circumstances.” Id. at 887. At the very least, the statement

is ambiguous, which leaves us without jurisdiction to review it.

IV

The judgment of the district court is AFFIRMED.

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