UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1697
UNITED STATES,
Appellee,
v.
JONATHAN A. GRANT, II,
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 Lynch, Circuit Judges.
Miriam Conrad, Federal Defender Office, for appellant.
Sheila W. Sawyer, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
May 30, 1997
TORRUELLA, Chief Judge. On February 28, 1996,
TORRUELLA, Chief Judge.
Defendant-Appellant Jonathan Grant ("Grant") entered an
unconditional plea of guilty to four counts of being a felon in
possession of eleven different firearms in violation of 18 U.S.C.
922(g). Each count stated a different location or a different
time of possession of the relevant firearms. Count One charged
Grant with possessing three firearms "[o]n or about April 22,
1995, at Fairhaven, . . . Massachusetts." Count Two charged him
with possessing two firearms "[o]n or about April 26, 1995, at
Fairhaven, . . . Massachusetts." Count Three charged him with
possessing two firearms "[o]n or about April 26, 1995, at
Westport, . . . Massachusetts." Count Four charged him with
possessing four firearms "[o]n or about May 1, 1995, at Westport,
. . . Massachusetts."
At the May 31, 1996, sentencing hearing, the district
court determined that Grant was an Armed Career Criminal ("ACC")
under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 924(e),
and accordingly imposed a minimum mandatory sentence of 15 years.
In the event that this court determined on appeal that the ACC
finding was erroneous, the district court imposed an alternative
sentence of a total of fifteen years, ten years for Counts One,
Two, and Three, to run concurrently, and five years for Count
Four, to run consecutively. As to the district court's first
ground, Grant contends that the district court erroneously held
that Grant's earlier Massachusetts conviction for carrying a
dangerous weapon constituted a violent felony under the ACCA.
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This allegedly erroneous finding provided the third conviction
necessary to deem Grant an ACC. Grant next contends that the
district court erred, on its alternative grounds, in enhancing
his offense level four levels under U.S.S.G. 2K2.1(b)(5) and
abused its discretion when it denied his request to conduct an
evidentiary hearing on disputed facts in the Pre-Sentencing
Report ("PSR"). Finally, Grant argues that the district court
violated his Double Jeopardy rights by imposing a consecutive
sentence on Count Four. Because we find that Grant's second and
third claims lack merit, and therefore affirm the district
court's alternative sentence, we need not reach Grant's ACC
argument.
BACKGROUND
BACKGROUND
In presenting the facts, we consult the uncontested
portions of the PSR, as well as the sentencing hearing
transcript. United States v. Lagasse, 87 F.3d 18, 20 (1st Cir.
1996).
Michael Rivera ("Rivera") agreed to buy guns for Grant,
in return for $50 for each gun purchased. Rivera purchased, on
Grant's behalf, a total of thirteen guns from licensed gun
dealers in Massachusetts. Rivera turned over all thirteen guns
to Grant, who paid over $6,400 in cash for the guns. Grant paid
Rivera $650 in cash for making the purchases.
A federal Alcohol, Tobacco, and Firearms ("ATF") agent,
who had received a tip about the purchases from a licensed
dealer, interviewed Rivera on May 11, 1995. Rivera agreed to
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cooperate with federal agents and, on June 2, 1995, introduced
Grant to an undercover agent. Grant indicated in a tape recorded
conversation with Rivera that he was interested in purchasing
five fully automatic Tec-9 firearms with attached silencers,
bulletproof vests, and a silencer for a .40-caliber Smith and
Wesson pistol that Rivera had purchased for him earlier. As part
of the sting operation, Rivera made arrangements with the
government agent to purchase these items for Grant. When Grant
was arrested by ATF agents at the sham sale, he was carrying the
.40-caliber firearm and $3,000 in cash.
DISCUSSION
DISCUSSION
I. Sentence enhancement
I. Sentence enhancement
Under U.S.S.G. 2K2.1(b)(5), the district court is to
impose a four-level enhancement
[i]f the defendant used or possessed any
firearm or ammunition in connection with
another felony offense; or possessed or
transferred any firearm or ammunition with
knowledge, intent, or reason to believe that
it would be used or possessed in connection
with another felony.
The district court found that this enhancement was warranted.
Grant contends that the district court abused its discretion when
it failed to hold an evidentiary hearing regarding contested
portions of the PSR, and that the Section 2K2.1(b)(5) enhancement
was unsupported by the remaining uncontested evidence.
A. Failure to hold an evidentiary hearing
A. Failure to hold an evidentiary hearing
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We review the district court's failure to hold an
evidentiary hearing for abuse of discretion. United States v.
Jim nez Mart nez, 83 F.3d 488, 498 (1st Cir. 1996).
Grant contested some of the facts contained in the PSR,
specifically facts derived from an ATF agent's grand jury
testimony regarding statements allegedly made by Rivera but that
were not contained in Rivera's grand jury testimony or in his
written statement to the ATF. These statements assert that the
purpose of Grant's firearms purchases was to "arm persons who
sold drugs for defendant in the greater New Bedford area." PSR
at 25. In the proceedings below, Grant sought an evidentiary
hearing into the factual basis for the agent's statements that
were not supported by Rivera's own testimony. Grant proffered to
the probation department and the sentencing court copies of
Rivera's written statement and cited to Rivera's grand jury
testimony;1 neither source, Grant argued, indicates Grant's
purpose in purchasing the weapons. Grant argued that the
1 Part of Rivera's testimony consisted of the following:
Q. Did he tell you what he intended to do
with the guns?
A. Yes. I think he was -- at one point, he
mentioned he was going to get rid of them to
his family members and to some friends.
Q. Were these individuals who sold drugs
with and for Grant?
A. Yes, the ones that I know of that he
mentioned.
Grand Jury Testimony of Michael Rivera at 9.
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"inconsistency" between the agent's testimony regarding Rivera's
statements and Rivera's own statements warranted resolution in an
evidentiary hearing.
Grant further contends on appeal that neither the
statements of Rivera nor those of the ATF agent were sufficiently
reliable for the district court to credit them in determining
Grant's knowledge or intent regarding the future use of the
firearms. Grant asserts that neither Rivera's statement nor
Rivera's testimony displayed sufficient knowledge of Grant's
state of mind to make the statements reliable for the purposes of
this enhancement.
He further asserts that the ATF agent's statements are
unreliable because they are nothing more than claims regarding an
informant's uncorroborated statements. Grant claims that the
rationale of this court's decision in United States v. Jim nez
Mart nez applies to his case. See Jim nez Mart nez, 83 F.3d at
494-95 (finding reliability concerns after the defendant made a
proffer contesting the reliability of an informant's statements
regarding the defendant's statements because the defendant and
the informant did not share a common language). Grant argues
that, just as the defendant's uncontested proffer in Jim nez
Mart nez sufficiently called into question the reliability of the
informant's statements, the ATF agent's statements were
sufficiently called into question by Rivera's statements and
testimony. The argument fails. There is no "inconsistency"
between the ATF agent's statements and Rivera's written statement
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and grand jury testimony -- the ATF agent's testimony regarding
statements made by Rivera in the context of the investigation is
consistent with the testimony provided by Rivera. Moreover, at
the end of his grand jury testimony, Rivera stated that he was
engaged in ongoing discussions with the ATF that encompassed
subjects beyond those to which he had testified.
More fundamentally, Grant made no proffer regarding any
possible, let alone relevant or material, evidence that would be
brought forward at an evidentiary hearing. Without a reason to
believe that any benefit would derive from convening an
evidentiary hearing, the district court surely did not abuse its
discretion in refusing Grant's request.
B. Failure to resolve factual disputes
B. Failure to resolve factual disputes
Prior to sentencing, Grant objected to various facts in
the PSR. Grant argues that the district court failed to comply
with Federal Rule of Criminal Procedure 32(c)(1), which requires
a sentencing court that is presented with a factual dispute to
make either a finding on the allegation or a
determination that no finding is necessary
because the controverted matter will not be
taken into account in, or will not affect,
sentencing. A written record of these
findings and determinations must be appended
to any copy of the presentence report made
available to the Bureau of Prisons.
Fed. R. Crim. P. 32(c)(1). We have held that the strictures of
Rule 32(c)(1) bind the sentencing court to compliance. See
United States v. Bruckman, 874 F.2d 57, 64 (1st Cir. 1989)
(finding a violation of Rule 32[(c)(1)] when the district court
fails to make or append such findings); United States v. Hanono-
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Surujun, 914 F.2d 15, 18 (1st Cir. 1990) (collecting cases). The
purposes of this rule are two-fold: (1) to protect "a
defendant's due process rights to be sentenced on the basis of
accurate information"; and (2) to provide "a clear record of the
disposition of controverted facts in the presentence report,
which, in turn, reduces the likelihood that subsequent appellate
or administrative decisions will be made based on improper or
incomplete information." Bruckman, 874 F.2d at 63-64.
With regard to the first concern, we have held,
however, that "a court may make implicit findings with regard to
sentencing matters." United States v. Ovalle-M rquez, 36 F.3d
212, 227 (1st Cir. 1994); accord United States v. Cruz, 981 F.2d
613, 619 (1st Cir. 1992) ("A court may make implicit findings on
disputed factual questions by accepting the government's
recommendations at the sentencing hearing." (internal quotations
omitted)). During the sentencing hearing, the court gave each
party the opportunity to discuss the basis for relying on the ATF
agent's testimony regarding what Rivera had told him when
Rivera's own words did not include the same statements. The
contested statements concerned Grant's alleged knowledge that he
was giving the firearms to individuals who would use them in
connection with a felony. After both parties were heard on the
statements of the ATF agent and the informant, the district court
ruled that Grant "had reason to believe that the weapons would be
used or possessed in connection with another felony offense."
Transcript of Sentencing Hearing at 26. The court indicated in
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writing, as part of the judgment, that it "adopt[ed] the factual
findings . . . in the presentence report." We find this case
virtually indistinguishable from United States v. Savoie, 985
F.2d 612, 621 (1st Cir. 1993), which found, on similar, if not
identical, facts, that the sentencing court had implicitly ruled
that the contested statements were sufficiently reliable. Under
Savoie, the district court's ruling and written adoption of the
PSR amounts "necessarily [to a] finding against [Grant] on all
disputed matters of fact," id., that are the subject of this
appeal.
Moreover, although Grant objected to certain facts in
the PSR that stated he had the requisite knowledge, Grant did not
provide the sentencing court with evidence to rebut the factual
assertions that he was in charge of a drug operation in the New
Bedford area and that he intended to provide the firearms to
friends and family members in furtherance of their work in that
operation. Consequently, the court was justified in relying on
the contested facts. See United States v. Mir, 919 F.2d 940, 943
(5th Cir. 1990) (explaining that, although defendant objected to
facts contained in the PSR, his failure to present rebuttal
evidence to refute those facts left the district court free to
adopt the facts contained in the PSR without further inquiry),
cited in United States v. Morillo, 8 F.3d 864, 873 (1st Cir.
1993); United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
Having concluded that the court implicitly resolved
these factual disputes, we turn to the second concern implicated
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by Rule 32(c)(1), namely that a court's determination be appended
to the PSR. Although the district court implicitly resolved the
factual disputes, it failed to comply with Rule 32(c)(1)'s
mandate that the sentencing court append to the PSR either a
determination regarding the contested facts or a statement that
the contested facts were not considered in reaching the sentence.
Consequently, we remand to the sentencing court to allow it to
append its determination. Cruz, 981 F.2d at 619 (explaining
that, where the sentencing court merely fails to append its
findings, remanding without resentencing is appropriate); United
States v. Santana-Camacho, 931 F.2d 966, 969 (1st Cir. 1991)
(finding "technical" failure to append findings to PSR did not
entitle appellant to resentencing).
C. Support for the enhancement
C. Support for the enhancement
We review the sentencing court's interpretation of the
sentencing guidelines de novo and its factual conclusions, which
must be supported by a preponderance of the evidence, for clear
error. United States v. Ruiz, 105 F.3d 1492, 1504 (1st Cir.
1997). Having concluded that the district court was entitled to
rely on all of the facts provided in the PSR, we review its
imposition of the four-level enhancement under U.S.S.G.
2K2.1(b)(5) in light of the facts contained in the PSR.
The findings on which the sentencing court relied for
the four-level enhancement were supported by the factual
statements in the PSR and amply justify the enhancement. See
United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996) ("In the
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absence of legal error, the district court's ruling will be
sustained so long as the information upon which it relied is
sufficient to support the findings under a clearly erroneous
standard."). According to the PSR, Grant was a drug dealer who
used friends and family members to distribute drugs. He
indicated to his "gopher" in the firearms transactions, Rivera,
that he needed the firearms to protect him and his associates in
connection with the drug operation. These facts alone support
the sentencing court's finding that Grant possessed or
transferred the firearms "with knowledge, intent, or reason to
believe that [they] would be used or possessed in connection with
another felony." U.S.S.G. 2K2.1(b)(5). We find no error here.
II. Double Jeopardy challenge
II. Double Jeopardy challenge
The Double Jeopardy Clause states: "[N]or shall any
person for the same offense be twice put in jeopardy of life or
limb." U.S. Const. amend. V. In the context of sentencing, the
Double Jeopardy Clause bars a sentencing court from imposing
multiple punishments for the same offense. See Rutledge v.
United States, 116 S. Ct. 1241, 1245 (1996). Grant contends that
the imposition of consecutive sentences for four counts that
amounted to the same offense violates this principle. The
government responds that Grant waived any challenge to the
indictment on Double Jeopardy grounds by his plea agreement and
unconditional plea of guilty to all four counts in the
indictment. It argues in the alternative that if Grant is
permitted to pursue a Double Jeopardy challenge to his sentence,
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to prevail he must establish that the felon-in-possession charges
in the indictment were facially multiplicitous.
We reject the government's initial argument. The
caselaw establishes that a defendant may under certain
circumstances mount a Double Jeopardy challenge to a sentence
arising out of a conviction to which he pled guilty. United
States v. Broce, 488 U.S. 563, 576 (1989); Menna v. New York, 423
U.S. 61, 63 n.2 (1975) (per curiam); Blackledge v. Perry, 417
U.S. 21 (1974). The government's focus here on the plea
agreement in addition to the plea itself does not advance the
argument or provide an exception to the general principle.
The government's alternative argument is correct.
Grant must show that the indictment was facially multiplicitous
to prevail on his Double Jeopardy challenge.
When a criminal defendant pleads guilty, he admits not
only that he committed the factual predicate underlying his
conviction, but also "'that he committed the crime charged
against him.'" Broce, 488 U.S. at 569 (quoting North Carolina v.
Alford, 400 U.S. 25, 32 (1970)). "Just as a defendant who pleads
guilty to a single count admits guilt to the specified offense,
so too does a defendant who pleads guilty to two counts with
facial allegations of distinct offenses concede that he has
committed two separate offenses." Id. at 570.
At the plea hearing, the district court repeatedly
directed Grant's attention to the fact that he had been charged
with four different crimes. See Transcript of Change of Plea
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Hearing, Feb. 28, 1996, at 6, 11. After being so apprised, Grant
entered an unconditional plea on each count. Having conceded the
facts in the indictment, he cannot now contend that the counts
constitute the same offense unless they are facially
multiplicitous.
Here, the facial allegations of the four counts
consisted of distinct offenses, charging Grant with the
possession of eleven different weapons in two separate cities on
three different dates. While it is true that Counts Two and
Three charge Grant with possession of certain weapons on the same
day, the two counts allege possession of different weapons in
different cities. Count Two alleges possession in Fairhaven of
two Glock semi-automatic pistols, and Count Three alleges
possession in Westport of another Glock semi-automatic pistol
(with a different serial number from either of the two other
Glocks) and a Ruger semi-automatic pistol. Grant's guilty plea
constituted an admission to each of the distinct factual
predicates underlying the separate counts and, consequently, the
plea "conceded guilt to [four] separate offenses." Broce, 488
U.S. at 571. The four counts being distinct from one another in
time, place, or both, and weapon possessed, they are not facially
multiplicitous.
Grant's efforts to dodge this conclusion are two-fold.
First, he contends that, because neither the PSR nor the plea
colloquy establish where Rivera turned the firearms over to
Grant, we must disregard the distinction between the reference in
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Counts One and Two to possession of different firearms in
Fairhaven and the reference in Counts Three and Four to
possession of other firearms in Westport. Because Grant's guilty
plea to all four counts conceded that his possession of the
different firearms took place in the locations alleged in each
count, however, no such showing was required.
Grant's second argument is that the sentencing court
found that the possession of these weapons amounted to a single
course of conduct. Accordingly, Grant reasons, the acts alleged
in the four separate counts constitute this single course of
conduct, making them the same offense for Double Jeopardy
purposes. Again, Grant's argument fails. First, Grant's claim
that the district court made a finding that his possession of
these firearms constituted a single scheme or course of conduct
is belied by the record. Second, the four separate counts simply
do not allege simultaneous possession.
The two multiple possession cases on which Grant
relies, United States v. Mullins, 698 F.2d 686, 687 (4th Cir.
1983), and United States v. Frankenberry, 696 F.2d 239, 245 (3d
Cir. 1982), are different from his situation in one dispositive
way. In those two cases, the defendants were tried on and
convicted of the multiple possession counts. Here, in contrast,
Grant pled guilty to each separate offense and thereby admitted
the factual predicates underlying the offense. He cannot now
argue that a factual issue remains regarding the location or time
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of his possession of these different firearms. See Broce, 488
U.S. at 569-71.
Based on the foregoing, we reject Grant's Double
Jeopardy challenge and affirm the district court's imposition of
a five year sentence on Count Four to run consecutively to the
concurrent ten year sentences imposed on Counts One, Two, and
Three.
CONCLUSION
CONCLUSION
For the foregoing reasons, we affirm Grant's sentence
affirm
and remand to the district court to append to the PSR its
remand
findings regarding contested facts.
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