United States v. Burhoe

United States Court of Appeals
For the First Circuit

No. 04-1787

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH BURHOE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.

Syrie D. Fried, Federal Defender Office, for appellant.
Paul R. Moore, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

May 23, 2005
 LYNCH, Circuit Judge. Joseph Burhoe was arrested for and

confessed to armed bank robbery. After the district court found

probable cause justifying Burhoe's arrest and denied Burhoe's

motion to suppress evidence found on his person at the time of his

arrest and his post-arrest statements, Burhoe entered a conditional

plea of guilty to the robbery. The court then sentenced him to a

term of 151 months' imprisonment, 3 years of supervised release,

and $20,023.68 in restitution under the then-mandatory Sentencing

Guidelines.

Burhoe appeals. We affirm the denial of the motion to

suppress but remand for resentencing in light of United States v.

Booker, 125 S. Ct. 738 (2005). See United States v.

Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).

I.

On September 7, 2001, two men robbed a Citizens Bank

branch located in a Shaw's Supermarket in Medford, Massachusetts.

At approximately 10:19 AM the Medford Police Department's (MPD)

radio dispatcher broadcast information about the robbery. The

dispatcher described the two robbers as males who had committed the

robbery with a knife and fled in a stolen black car. MPD Officer

Sheila Quinn reported over the radio that she was behind the stolen

car (the license plate number had also been broadcast) and chasing

it down Riverside Avenue towards the Fellsway. Officer Quinn

reported over the radio that the robbers were two white males, and

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one wore a black baseball cap. As she gave chase, she continued to

give updates over the police radio as to the location of the

robbers.

MPD Detective Michael Fahey was on duty at the Medford

Police Headquarters at the time of the initial dispatches about the

robbery and heard the radio report. He was in plainclothes and

displayed his official badge on his belt. After he heard about the

robbery, he drove an unmarked police car to the area of Riverside

Avenue and the Fellsway to help in the chase, continuing to follow

Officer Quinn's updates over the police radio. Detective Fahey

heard that the black car had crashed near the Osgood School on

Fourth Street, a cross street, and the suspects escaped on foot.

Detective Fahey drove to the Fellsway and turned onto St. James

Road, parallel and next to Fourth Street. Fahey parked his car,

and got out to search on foot.

Fahey saw a white male (whom he later identified to the

court as the defendant) emerge from a private yard on the north

side of St. James Road -- i.e., from the direction of Fourth

Street, where the getaway car was abandoned -- diagonally across

from where Fahey was parked. It was about 10:30 in the morning.

The area was a predominantly white residential neighborhood.

Fahey testified that Burhoe "came out of the yard, and he

was moving slowly towards the sidewalk, towards the road. He was

looking around side to side, ducking, crouching a little bit."

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Burhoe "slow jog[ged], fast shuffle[d]" across St. James Road to

the side of the road where Fahey was parked and went behind a

garage next to Fahey's car. Fahey followed Burhoe behind the

garage. Fahey saw Burhoe crouching in the private yard and looking

out at the intersection of Riverside and the Fellsway, then filled

with police sirens and other activity. Fahey testified that Burhoe

"was sneaking along the side of the house, basically, like someone

playing hide-and-seek." Fahey continued to follow Burhoe as Burhoe

jumped off a short wall into the intersection of Riverside and

Fellsway.

Fahey followed and also jumped off the wall. At this

point Burhoe turned around and made eye contact with Fahey. Burhoe

was wearing a light-colored shirt and sweat pants, and his clothing

was a bit dirty. Burhoe looked "disheveled" and "very unshaven,"

and according to Fahey, like "someone who's been on a long cocaine

binge." Fahey thought Burhoe appeared to be under the influence of

alcohol or drugs. Fahey saw a large bulge across the front of

Burhoe's sweat pants, like a small towel rolled up and tucked into

the waist area. Fahey walked towards Burhoe, saying, "Come here.

I want to talk to you." Burhoe walked backwards away from Fahey,

holding his arms out, saying, "What do you want with me? What do

you want with me?" Fahey closed in on Burhoe until they were face

to face, when Burhoe "took a quick turn to the right to move away

from [Fahey] and to run away from [Fahey]." Detective Fahey then

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forced Burhoe to the ground, with his body on top of one of

Burhoe's arms. Burhoe said, "You'll have no problem with me,

Officer. You'll have no problem with me. You know me." Fahey

asked, "Who are you?" Burhoe replied, "It's me, Jojo." Fahey, who

did not personally know Burhoe but did know of his reputation for

being involved in bank robberies, said, "Jojo Burhoe. I would

shake your hand, but we are kind of tied up right now."

Other officers then arrived, and Burhoe was handcuffed.

As Burhoe was being brought to his feet to be patted down, Fahey

saw that one of Burhoe's pockets had some money and surgical gloves

hanging out of it. Another officer reached into Burhoe's waist

band and retrieved a white plastic shopping bag, which was filled

with approximately $1,700 in cash. Burhoe was then taken to the

police station and booked.

After Burhoe's arrest, FBI Special Agent Laurence

Travaglia, who knew Burhoe, went to MPD headquarters. After having

been advised of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), Burhoe waived them and confessed to the robbery.1

II.

After indictment for bank robbery in violation of 18

U.S.C. § 2113(a), Burhoe moved to suppress the physical evidence

the police obtained at the time of his arrest (including the

1
The factual circumstances surrounding the arrest of Burhoe's
co-defendant, Lawrence Maguire, are discussed in United States v.
Maguire, 359 F.3d 71 (1st Cir. 2004).

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plastic bag, the cash, and other items) as well as his statements

to the police afterwards. He primarily argued that his seizure by

Detective Fahey was a warrantless arrest without probable cause and

that he had not offered a knowing and intelligent waiver of his

Miranda rights before making his post-arrest statements.

The district court held a two-day evidentiary hearing and

oral argument on the motion to suppress, and denied the motion.

The court ruled that Burhoe's statements were made after a knowing,

intelligent and voluntary waiver of his Miranda rights. Burhoe

does not challenge this aspect on appeal. The district court also

found that at the time Detective Fahey "took hold of Burhoe and

forced him to the ground," that constituted an arrest of Burhoe (as

opposed to an investigatory stop under Terry v. Ohio, 392 U.S. 1

(1968), which the government had argued in the alternative). Given

the totality of the circumstances and the knowledge Fahey had at

the time concerning the robbery, the district court found the

arrest was justified by probable cause.

After the denial of his motion to suppress, Burhoe

entered a conditional guilty plea to the indictment, reserving the

right to appeal the denial of the motion to suppress.

In Burhoe's Presentence Report (PSR), his base offense

level was computed to be 32 based on his career offender status and

the 20-year statutory maximum term of imprisonment for bank

robbery. See U.S.S.G. § 4B1.1; 18 U.S.C. § 2113(a). After a

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three-level reduction for acceptance of responsibility, Burhoe's

total offense level was 29. That, combined with his criminal

history category of VI, gave him a Guidelines range of 151 to 188

months' imprisonment. U.S.S.G. Ch. 5 Pt. A.

Burhoe moved the court to depart downwards to a sentence

of 84 months, arguing that he suffered from a diminished mental

capacity at the time of the bank robbery. See U.S.S.G. § 5K2.13.

Burhoe presented psychological reports that he suffered from "post-

traumatic stress disorder and major depressive disorder, . . . with

an overlay of polysubstance abuse." The sentencing court explained

that under its reading of U.S.S.G. § 5K2.13, a defendant cannot

have the benefit of the departure if a disqualifying factor such as

a crime of violence is present. See U.S.S.G. § 5K2.13.2 The

2
Section 5K2.13 provides:

A sentence below the applicable guideline
range may be warranted if (1) the defendant
committed the offense while suffering from a
significantly reduced mental capacity; and (2)
the significantly reduced mental capacity
contributed substantially to the commission of
the offense. Similarly, if a departure is
warranted under this policy statement, the
extent of the departure should reflect the
extent to which the reduced mental capacity
contributed to the commission of the offense.

However, the court may not depart below the
applicable guideline range if (1) the
significantly reduced mental capacity was
caused by the voluntary use of drugs or other
intoxicants; (2) the facts and circumstances
of the defendant's offense indicate a need to
protect the public because the offense

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sentencing court denied the downward departure on the ground that

Burhoe's offense of conviction "involved actual violence or serious

threat of violence and indicates a need to protect the public."

The court then sentenced Burhoe at the bottom of the Guidelines

range to 151 months' imprisonment and 3 years of supervised

release, and ordered him to pay $20,023.68 in restitution.3

Burhoe timely appealed to this court.

III.

Denial of the Motion to Suppress

We review de novo the district court's probable cause

determination; subsidiary factual findings are reviewed for clear

error, "giv[ing] due weight to inferences drawn from those facts by

resident judges and local law enforcement officers." Ornelas v.

United States, 517 U.S. 690, 699 (1996); see also United States v.

involved actual violence or a serious threat
of violence; (3) the defendant's criminal
history indicates a need to incarcerate the
defendant to protect the public; or (4) the
defendant has been convicted of an offense
under chapter 71, 109A, 110, or 117, of title
18, United States Code.

U.S.S.G. § 5K2.13 (2003 ed.). Section 5K2.13 was amended slightly
in November of 2004, after the sentencing hearing in this case,
without significant change in meaning.
3
The defendant also argued that a departure is justified under
U.S.S.G. § 5H1.3 because Burhoe "committed this offense while
suffering from extremely deleterious mental conditions." The
sentencing court denied that ground as well, finding that Burhoe's
case did not take it out of the heartland of § 5H1.3. Burhoe does
not base his arguments on appeal on § 5H1.3.

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Capelton, 350 F.3d 231, 240 (1st Cir. 2003). "Probable cause

exists when police officers, relying on reasonably trustworthy

facts and circumstances, have information upon which a reasonably

prudent person would believe the suspect had committed or was

committing a crime." United States v. Young, 105 F.3d 1, 6 (1st

Cir. 1997). Probable cause is also a "commonsense, nontechnical

conception[] that deal[s] with the factual and practical

considerations of everyday life on which reasonable and prudent

men, not legal technicians, act." Ornelas, 517 U.S. at 695

(internal quotations marks and citations omitted).

Burhoe does not seriously challenge any of the district

court's factual findings, only the conclusion drawn. Burhoe's

argument is that there was nothing suspicious about where he was or

how he was behaving. We disagree. There was ample evidence of

probable cause for his arrest.

When Detective Fahey saw Burhoe on St. James Road, he

knew: (1) a bank robbery had just taken place minutes earlier by

two white males; (2) the suspects' getaway car had been abandoned

on Fourth Street, the next street north of St. James Road; (3) the

suspects were escaping on foot in the immediate vicinity; (4)

Burhoe, a white male, emerged from a private yard, consistent with

the route of a fugitive escaping from the abandoned car on Fourth

Street one block to the north; (5) Burhoe did not look like he

belonged there -- at 10:30 on a workday morning, Burhoe was

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disheveled, dirty, and possibly intoxicated, not the usual sight in

a residential neighborhood; (6) Burhoe behaved strangely: his

furtive, "hide-and-seek" movements, quick dash across the road, and

his attempt to remain hidden; (7) Fahey noticed an abnormal bulge

in Burhoe's waist; and (8) to boot, Burhoe attempted to run away

from Fahey. A "reasonably prudent person would believe [Burhoe]

had committed or was committing a crime." Young, 105 F.3d at 6.

Burhoe cites United States v. Kithcart, 134 F.3d 529 (3d

Cir. 1998), for his argument that there was no probable cause at

the time of his arrest. This comparison is unavailing. Kithcart

concluded that the arresting officer had no probable cause to make

an arrest under very different circumstances: the make and model of

the defendants' car did not match the radio reports of robberies

from earlier in the night; there was no indication that the last

reported robbery occurred near where the arrest took place because

the robbery was in an unspecified location in a neighboring town;

and the number of suspects in the radio reports of the robberies

(two black males in one car) did not match the arresting officer's

initial observation of the defendant (a single black male in one

car). 134 F.3d at 531-32. These facts are easily distinguished

from the present case.

IV.

Burhoe also brings a challenge to his sentence under

United States v. Booker, 125 S. Ct. 738 (2005). Burhoe concedes

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that he did not preserve the error below, and we review his claim

of Booker error under the plain error standard. United States v.

Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).

Because Burhoe did not preserve his objection, he must

show a reasonable probability of a more lenient sentence under

advisory Guidelines. See id. at 75. Burhoe relies on statements

by the trial judge that the mandatory Guidelines scheme meant that

the judge believed he could not grant the downward departure Burhoe

sought. During sentencing, the following exchange took place

between counsel for the defendant and the sentencing court:

Defendant counsel: My recommendation was for a
departure down to a sentence not to exceed 84
months. That's a seven-year sentence.

The court: I think I understand your position
. . . and your position is one I started with
yesterday, that a sentence less than what the
guidelines call for here can be imposed even
with a departure. But I -- I reviewed
[U.S.S.G. § 5K2.13], the language, the plain
language of the guideline, and it says to me
that you just don't get the departure if you
have these disqualifying factors, like a
criminal history, suggest the need to protect
the public if the offense of conviction is a
crime of violence involving an actual crime of
violence or a serious threat of violence, you
don't get this departure.
In other words, I don't believe the
language of the guidelines permit me to tailor
this -- in other words, we compared this
yesterday with contributory to comparative
negligence. In the old days when there was
contributory negligence, one bit of evidence
prevents you from getting -- now I read this
guideline that way.
. . .

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 I read it that you don't get the
departure if I find there's a need to protect
the public.

(emphasis added). Given this exchange and others in the transcript

similar in tenor, it is clear that the district court felt

compelled by the language of the Guideline not to consider Burhoe

for a downward departure. And there is some indication that absent

this compulsion, it may have considered the question of departure

differently. "[W]e are not inclined to be overly demanding as to

proof of probability where, either in the existing record or by

plausible proffer, there is reasonable indication that the district

judge might well have reached a different result under advisory

guidelines." United States v. Heldeman, 402 F.3d 220, 224 (1st

Cir. 2005).4

The government's primary argument is that there is no

possibility of a different outcome because "Burhoe's sentence was

dictated by a congressional directive that career offenders receive

a sentence at or near the statutory maximum." This argument is

premised upon 28 U.S.C. § 994(h), which directs the Sentencing

Commission to "assure that the guidelines specify a sentence to a

term of imprisonment at or near the maximum term authorized for

4
Burhoe also makes other arguments against his sentence such
as an alleged unfairness due to the disparity between his sentence
and that of his co-defendant (who Burhoe argues was not sentenced
as a career offender). Since we are remanding based on the
district court's statements during the sentencing hearing, we do
not need to address these other arguments.

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categories of defendants" including career offenders like Burhoe.

28 U.S.C. § 994(h). We have consistently refused to speculate on

what the district court will do, if anything, on remand. Of course

we intimate no view either as to the merits of the government's

statutory arguments or to whether the court should visit a new

sentence upon Burhoe. See United States v. Bourgeois, No. 04-2203,

2005 U.S. App. LEXIS 6599, at *5 (1st Cir. Apr. 18, 2005); United

States v. Mercado Irizarry, No. 02-1105, 2005 U.S. App. LEXIS 5892,

at *14 (1st Cir. Apr. 11, 2005).

V.

We affirm the district court's denial of Burhoe's motion

to suppress and remand under Booker for resentencing consistent

with this opinion. So ordered.

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