United States v. Sturtevant

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1018

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN D. STURTEVANT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin and Stahl, Circuit Judges.

Peter B. Krupp, Federal Defender Office, for appellant.

Sheila W. Sawyer, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the United

States.

August 10, 1995

Per Curiam. On February 7, 1992, four Boston police

officers patrolling the Cathedral Housing Projects, observed

appellant Brian Sturtevant striking Eric Randolph about the

head. After separating the two individuals, the officers

searched Sturtevant and discovered a loaded sawed-off shotgun

concealed inside one leg of his pants. They also found two

shotgun shells in Sturtevant's right coat pocket and one

"hit" of crack cocaine inside his glove.

Sturtevant was indicted on federal charges of being a

felon in possession of a firearm, 18 U.S.C. 922(g)(1), and

possessing an unregistered firearm, 26 U.S.C. 5861(d). He

was also charged in state court with assault and battery and

possession of a controlled substance. On September 28, 1994,

Sturtevant pled guilty to the federal charges and was

subsequently sentenced to 72 months' imprisonment.

The presentence report recommended that Sturtevant

receive a four-level increase in his base offense level

pursuant to U.S.S.G. 2K2.1(b)(5), which requires a four-

level enhancement "[i]f the defendant used or possessed any

firearm or ammunition in connection with another felony

offense . . . ." The probation officer concluded that the

enhancement was warranted because Sturtevant had possessed

the sawed-off shotgun during his altercation with Randolph

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and--according to Randolph's initial statement to the

police1--had threatened to shoot Randolph prior to the

fight.

At sentencing, Sturtevant opposed the recommended

enhancement, and submitted an affidavit from Randolph, dated

November 22, 1994, in which he said that Sturtevant had never

threatened him or mentioned a gun. The government countered

with an affidavit from Randolph, dated November 28, 1994,

saying that he (Randolph) did not recall making the precise

statements recounted in the police report, but he did

remember telling the arresting officer that (1) he thought

that Sturtevant must have been carrying a gun to risk coming

into his drug territory and punching him in the face, and (2)

Sturtevant said that he was now going to be "pumping," i.e.,

selling drugs, in Randolph's area.

At Sturtevant's request, the district judge granted a

continuance until December 16, 1994, but indicated that an

evidentiary hearing, also requested by Sturtevant, was

probably unnecessary. On December 16, 1994, the district

court applied the four-level enhancement, finding that the

possession of the shotgun played a role in emboldening

Sturtevant's actions towards Randolph. The court said that

1The officer, who is now deceased, reported (in the
police report and before the grand jury) that Randolph said
that Sturtevant approached him prior to the fight and
declared, "get the fuck out of here, I'm taking over the drug
trade now, and if you fuck with me, I'm going to shoot you."

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it gave little weight to Randolph's statements, but explained

to Sturtevant that he made these findings "because you were

out there on the street with a deadly weapon; it might have

been in your pocket, but it was there in reserve."

The only issue on appeal is whether the district court

abused its discretion in failing to hold an evidentiary

hearing before levying the four-level enhancement. Although

Sturtevant says that an evidentiary hearing was needed to

test Randolph's credibility, he has never directly disputed

Randolph's claim--twice repeated and never repudiated by

Randolph--that Sturtevant started the fight. There was also

unrefuted evidence, independent of Randolph, that Sturtevant

actually possessed a loaded sawed-off shotgun during his

assault. The assault was a felony offense under the

guidelines. U.S.S.G. 2K2.1 comment. (n.7); M.G.L.A. ch.

265, 13A.

Given the broad reach of the "in connection with"

requirement, United States v. Thompson, 32 F.3d 1, 3 (1st

Cir. 1994), we think that the carriage of the gun during the

assault satisfied the requirement of section 2K2.1(b)(5) that

a firearm be "used or possessed . . . in connection with

another felony offense . . . ." The courts have held

repeatedly that the presence of a readily available weapon in

a location containing drugs is enough. E.g., United States

v. McFadden, 13 F.3d 463, 465-66 (1st Cir. 1994). Here,

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there might be enough undisputed evidence for the district

court to conclude that this assault was associated with

drugs. Still, if the enhancement turned on Sturtevant's

purpose or alleged threats, perhaps a hearing might have been

required.

But we think that on the present facts the motive for

the assault does not matter. Sturtevant carried the shotgun

on his person during his assault. The connection between

that crime (the assault) and the gun seems to us no less

close than the connection between a drug hideout and gun. In

each instance, the weapon provides an added sense of security

and has a substantial potential for use in the course of the

particular crime in question.2 This is not the case of an

accountant who, while forging checks, happens to have a gun

in the desk drawer.

In short, a hearing would have served no purpose.

Sturtevant was free to testify but made no request to do so,

and Randolph's testimony would not have altered the result

even if he had said that no threats were made and the reason

for the assault was a mystery.

Affirmed.

2Compare United States v. Eaton, 890 F.2d 511, 512 (1st

Cir. 1989), cert. denied, 495 U.S. 906 (1990) (drug case),

with United States v. Routon, 25 F.3d 815, 819 (9th Cir.

1994) (car theft). This court cited Routon with approval in

United States v. Thompson, 32 F.3d 1, 6 (1st Cir. 1994).

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