United States v. Stokes

United States Court of Appeals
For the First Circuit

No. 00-2397

UNITED STATES OF AMERICA,

Appellee,

v.

RONALD A. X. STOKES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Dyk,* and Howard,
Circuit Judges.

Judith H. Mizner, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

November 5, 2004

*
Of the Federal Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. A jury convicted defendant-

appellant Ronald Stokes of being a felon in possession of a

firearm. See 18 U.S.C. § 922(g). The district court sentenced him

to 360 months imprisonment -- of which 283 months were to be served

concurrently with a state sentence he had already begun serving --

and 60 months of supervised release. Stokes argues three issues on

appeal: (1) the district court erred by excluding proffered expert

testimony regarding eyewitness identification; (2) the district

court erred by imposing a sentence in excess of 25 years; and (3)

pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004), his

sentence violated the Sixth Amendment of the United States

Constitution.

After careful review, we affirm the conviction and

sentence.

I. Background

A. Facts

The factual foundation of this case has been thoroughly

explained elsewhere. See United States v. Stokes, 124 F.3d 39, 41-

43 (1st Cir. 1997); United States v. Stokes, 947 F. Supp. 546, 548-

50 (D. Mass. 1996); Commonwealth v. Stokes, 653 N.E.2d 180, 181-85

(Mass. App. Ct. 1995), rev. denied, 655 N.E.2d 1277 (Mass. 1995).

The facts, as they pertain to this appeal, are briefly described

below.

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 In the early morning of December 6, 1990, an altercation

occurred at 7 Don Street. The altercation began when José

Candelaria a/k/a Miguelín, a resident of 318 Fuller Street, began

smashing the windows of the cars in front of 7 Don Street.

Candelaria also broke the front window of the 7 Don Street home.

Candelaria ultimately pushed his way into the 7 Don Street house

after Linda Stokes, one of the house's occupants, went to speak

with Candelaria. According to Linda Stokes, Candelaria had a long

gun. Eventually, Candelaria left 7 Don Street, firing several

shots as he drove away. The Boston police arrived at 3:25 a.m. to

investigate the disturbance. After the police left, Ronald Stokes,

who also lived at 7 Don Street, arrived home and was informed of

the altercation.

Around 4:00 a.m. an incident occurred on Fuller Street,

the street where Candelaria lived. Kenneth Pounds, a Fuller Street

resident, was leaving his house at 323 Fuller Street on his way to

work. While walking to his car, Mr. Pounds noticed two men in

front of a vacant house. Suspicious, Mr. Pounds turned to go back

inside his home at which point he heard: "Let's get him." Before

Pounds could close the door he heard gunshots. Both Pounds, and

his wife Bettie, who had been standing in the doorway, were shot.

Another individual, Kenneth Wiggins, was shot in the back and died

in his automobile in Fuller Street.

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 At the time of this shooting, Boston Police Department

Detective Michael Cox and Officer Craig Jones were traveling in the

area of Fuller Street in an unmarked police car. Cox and Jones

drove down Fuller Street, with their lights off, after being

informed of the gunshots. They noticed two black men, one shorter

than the other, leaning on a car near 310 Fuller Street. The two

men looked as though they were fiddling with something. Upon

seeing the cruiser, the two men ran. Officer Cox jumped out of the

cruiser and broadcasted that he was in pursuit of a suspect with a

gun.

The chase proceeded down an alleyway where the shorter

man slipped on a patch of ice, fell to one knee, and dropped what

Cox claimed was a firearm. The shorter man reached back to

retrieve the item as Officer Cox, who was still in pursuit, came to

within five to eight feet of the shorter man. At some point, Cox

lost the shorter man in a dark alley. Cox did, however, hear a

fence rattling.

Armed with a flashlight, Jones continued looking for the

two men. Hearing a fence rattle, Jones shined his flashlight in

the direction of 310 Fuller Street. Upon doing so, Jones saw the

shorter man pulling his foot out of a fence. While pursuing the

shorter man, Jones noticed an AK-47 five feet from the fence where

the shorter man's foot had been stuck.

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 In the meantime, Cox met another police cruiser being

driven by Officer Painten. Cox told Painten that the suspect was

"a black male, short, bald-headed." A few minutes later, Painten

saw and detained a man fitting that description. The man was

sweating profusely. Cox and Jones drove to where the suspect was

being detained. Cox and Jones confirmed that the detained

individual was the shorter man who possessed a gun while trying to

run away from them. The shorter man was identified as defendant-

appellant Ronald Stokes. The slug found in Wiggins's body, the

slugs found inside the Pounds's home, and an empty shell casing

found outside the Pounds's home, were all fired from the AK-47 that

Officer Jones had found five feet from where he had seen Stokes

stuck in the fence.

II. Analysis

A. Excluding expert testimony

The central issue at trial was whether Ronald Stokes was

the person who possessed the firearm. The bulk of the testimony on

whether Stokes possessed the gun came from eyewitness

identification by Officers Cox and Jones. To counter the testimony

of Cox and Jones, Stokes indicated that Dr. Alexander Daniel Yarmey

would testify as an expert regarding the validity of eyewitness

testimony. On January 13, 1999, the district court instructed

Stokes to file a memorandum of law explaining why Dr. Yarmey's

testimony should be admitted. On February 25, 1999, four days

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before trial and without having received Stokes's memorandum

regarding expert testimony, the district court issued a memorandum

excluding Dr. Yarmey's testimony.

The district court excluded the proposed expert testimony

because, "[a]s a general proposition, the psychological factors

that affect the reliability of eyewitness identification are a

matter of common experience," and the admission of such testimony

invades the province of the jury. Memorandum and Order Regarding

Expert Eyewitness Identification Testimony 1 (Feb. 25, 1999). The

district court recognized that such testimony is helpful in

"special" circumstances, but failed to find that such circumstances

existed in this case. Thus, the district court ruled that the

testimony was inadmissable "both for its tendency to encroach on

the jury's function and because of its lack of bearing on any

material issue." Id. at 3.

The following day, Stokes filed a summary of Dr. Yarmey's

testimony. The summary indicated that Dr. Yarmey would testify

concerning "the scientific evidence regarding psychological factors

which are involved in acquisition, retention and retrieval of

information in situations similar to the circumstances in this

case." The only other information the summary contained was that

Dr. Yarmey sought to testify specifically regarding:

[t]he effect of "weapon focus" with respect to
an eyewitness's ability to perceive; [t]he
effect of feeling afraid or upset at the time
an eyewitness perceives a perpetrator; [t]he

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 distortions of time perception common to
eyewitnesses; [t]he influence of expectations
on the ability to identify a perpetrator;
[t]he effect of suggestiveness post incident;
[t]ransference of innocent encounters; [and]
the relationship between an eyewitness's
confidence and his/her identification and its
accuracy.

Stokes did not request reconsideration of the district court's

order excluding Dr. Yarmey's testimony.

"[W]e review a trial court's decision to admit or exclude

expert testimony under an abuse of discretion standard." United

States v. Díaz, 300 F.3d 66, 74 (1st Cir. 2002). Under this

standard, we have given a district court's decision to admit or

exclude evidence great deference. See United States v. Corey, 207

F.3d 84, 88 (1st Cir. 2000); United States v. Shay, 57 F.3d 126,

132 (1st Cir. 1995). For the reasons stated below, we believe that

the district court did not abuse its discretion by excluding the

testimony of Dr. Yarmey.

Rule 702 of the Federal Rules of Evidence governs the

admissibility of expert testimony and "provides that a proposed

expert witness must be sufficiently qualified to assist the trier

of fact, and that his or her expert testimony must be relevant to

the task at hand and rest on a reliable basis." Díaz, 300 F.3d at

73. The rule states:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or

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 education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2)
the testimony is the product of reliable
principles and methods, and (3) the witness
has applied the principles and methods
reliably to the facts of the case.

Fed. R. Evid. 702. By screening proffered expert testimony for

both reliability and relevance, the district court performs an

important gatekeeping role. See Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 592-95 (1993). In this case, the district

court exercised its gatekeeping role by excluding Dr. Yarmey's

testimony.

Expert testimony "must be relevant not only in the sense

that all evidence must be relevant . . . but also in the

incremental sense that the expert's proposed opinion, if admitted,

likely would assist the trier of fact to understand or determine a

fact in issue." Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling

Co., 161 F.3d 77, 81 (1st Cir. 1998) (citations omitted). Expert

testimony on eyewitness identification presents an interesting

question for admissibility purposes because eyewitness

identification involves a "credibility determination within the ken

of the ordinary judge and juror -- unlike, say, DNA

identification." United States v. Brien, 59 F.3d 274, 276 (1st

Cir. 1995). Fed. R. Evid. 702 permits expert testimony that

"assist[s] the trier of fact," and it is possible that "an expert

such as a psychologist familiar with identification problems could

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give the jury background information about the mechanism of memory,

types of errors, error rates, and other information not commonly

possessed by the jury -- information that may even be at odds with

what a judge or juror might expect." Id. at 276-77.

As we have previously stated, "[w]e are unwilling to

adopt a blanket rule that qualified expert testimony on eyewitness

identification must routinely be admitted or excluded." Id. at

277. Rather, we, and the district courts, should examine each case

one by one, taking into account such concerns as "the reliability

and helpfulness of the proposed expert testimony, the importance

and the quality of the eyewitness evidence it addresses, and any

threat of confusion, misleading of the jury, or unnecessary delay."

Id.

When the district court ruled to exclude Dr. Yarmey's

testimony, the record did not address the foundation for his

testimony or how his testimony would aid a jury.1 See,

e.g., Brien, 59 F.3d at 277 (finding no abuse of discretion when

defense failed to adequately respond to request for data or

literature underlying an expert's testimony on eyewitness

identification). Providing the district court with information

underlying the expert's assumptions and conclusions allows the

court to "gauge whether the testimony would be helpful to the jury

1
The Defendant's Summary of Expert Testimony also did not contain
this information.

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or would confuse or mislead instead." Id. Without such guidance,

the district court turned to the caselaw and concluded that expert

testimony regarding eyewitness identification aids a jury where

special circumstances exist, such as

where an identification is made after a long
delay or under conditions of extreme stress,
see, e.g., United States v. Harris, 995 F.2d
532, 535 (4th Cir. 1993), or where a witness's
faculties were impaired at the time of the
identification, see, e.g., State v. Whaley,
406 S.E.2d 369, 372 (S.C. 1991), or where no
independent evidence corroborates the
defendant's guilt. . . .

Memorandum and Order Regarding Eyewitness Identification Testimony,

at 2.

Without any information regarding the reliability and

helpfulness of the proposed expert testimony and without any

indication of the existence of a special circumstance, the district

court could not conclude that the proposed expert testimony would

"assist the trier of fact to understand the evidence." Fed. R.

Evid. 702. Thus, the district court did not abuse its discretion

when it excluded the expert's testimony.

B. Sentencing

Stokes was convicted of being a felon in possession of a

firearm and ammunition in violation of 18 U.S.C. § 922(g). The

penalty for violating § 922(g) is a fine, a term of imprisonment

not to exceed ten years, or both. 18 U.S.C. § 924(a)(2). Stokes,

however, was sentenced to thirty years imprisonment pursuant to the

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Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Stokes

claims the district court committed plain error by concluding that

the maximum penalty for violating the ACCA was life imprisonment

because, he claims, the correct maximum penalty is supplied by 18

U.S.C. § 3559, which lists a Class C felony as having a maximum

penalty of twenty-five years imprisonment. We disagree.

Before proceeding into the analysis, it is prudent to

clarify Stokes's argument by analyzing the four statutory

provisions involved. The first provision, 18 U.S.C. § 922(g),

makes it unlawful for a felon to possess a firearm. The second

provision, 18 U.S.C. § 924(a)(2), provides that a knowing violation

of § 922(g) shall result in imprisonment for not more than ten

years. The third provision, the ACCA, 18 U.S.C. § 924(e)(1),

provides that a person convicted of violating § 922(g) who has

three previous convictions referred to in the statute shall be

sentenced to a term of imprisonment of not less than fifteen years.

The ACCA does not supply a maximum term of imprisonment. The

fourth provision, 18 U.S.C. § 3559(a)(3), classifies an offense as

a Class C felony if the maximum term of imprisonment is "less than

twenty-five years but ten or more years."

Stokes claims that since the ACCA is a sentencing

enhancement statute, it does not create a new offense to be

categorized under § 3559. Thus, applying § 922(g) -- the statute

under which Stokes was convicted -- to § 3559, results in Stokes's

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conviction being labeled a Class C felony, which has a maximum term

of imprisonment of less than twenty-five years. Stokes therefore

argues that the district court plainly erred in sentencing him to

thirty years.

Stokes's argument fails for two reasons. First, this

court has previously stated that the maximum penalty for those who

fall within the ACCA is life imprisonment. See United States v.

Weems, 322 F.3d 18, 26 (1st Cir. 2003) (stating that the maximum

sentence under the ACCA is life imprisonment); see also Custis v.

United States, 511 U.S. 485, 487 (1994) (stating that the ACCA

"raises the penalty for possession of a firearm by a felon . . . to

a mandatory minimum sentence of 15 years and a maximum of life in

prison without parole"); United States v. Mack, 229 F.3d 226, 229

n.4 (3d Cir. 2000) (stating that the ACCA "specifies no maximum

term of imprisonment [but] has been construed to authorize a life

term"); United States v. Brame, 997 F.2d 1426, 1428 (11th Cir.

1993) (same); United States v. Guerrero, 5 F.3d 868, 874 n.12 (5th

Cir. 1993) (same); United States v. Wolack, 923 F.2d 1193, 1199

(6th Cir. 1991) (same); United States v. Carey, 898 F.2d 642, 644

(8th Cir. 1990) (same); United States v. Blannon, 836 F.2d 843, 845

(4th Cir. 1988) (same). Stokes urges us to overturn this well-

established precedent, but we decline to do so.

Second, Stokes's argument suffers from a misreading of

§ 3559(a). Section 3559(a) classifies "[a]n offense that is not

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specifically classified by a letter grade in the section defining

it." 18 U.S.C. § 3559(a). The statute does not purport to limit

the maximum term of imprisonment based upon how an offense is

classified. We therefore conclude that the district court did not

plainly err in sentencing Stokes to thirty years imprisonment since

such a sentence is between the statutory minimum of fifteen years

and the maximum of life imprisonment.

C. Blakely

After sentencing and opening brief on appeal, Stokes

filed a supplemental brief seeking additional review of his

sentencing in light of the Supreme Court's recent decision in

Blakely, 124 S. Ct. 2531 (2004). Our precedent forecloses this

issue.

In Blakely, the Supreme Court held that a state judge’s

sentence enhancement beyond the prescribed statutory maximum, based

on the judge's own finding that the defendant acted with

"deliberate cruelty," violated the defendant's Sixth Amendment

right to a jury trial. Id. at 2536-43. This is because the facts

supporting the sentence were neither admitted by the defendant nor

found by a jury. Id. at 2537.

Although Blakely expressed no opinion on the Federal

Sentencing Guidelines, see id. at 2538, n.9 ("[t]he Federal

Guidelines are not before us, and we express no opinion on them"),

Stokes argues that his sentencing implicates Blakely in two ways.

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First, the district court determined Stokes's base level to be 34,

rather than 33, because the "evidence is overwhelming that he used

an AK-47 during the commission of a crime of violence." United

States v. Stokes, No. CRIM. 95-10379-RGS, 2000 WL 246478, at *4 (D.

Mass. Feb. 28, 2000). The jury, however, never found that Stokes

used the weapon during a crime of violence. The difference in base

level between 33 and 34 changes the applicable guideline range from

235-293 months to 262-327 months imprisonment. Second, the

district court granted an upward departure from 34 to 35 --

changing the applicable guideline range from 262-327 months to 292-

365 months imprisonment -- because of the extraordinarily dangerous

nature of the particular weapon and ammunition. The gun was an AK-

47, with 7.62 x 39mm caliber ammunition. The jury did not find

that the gun used was an AK-47, nor did it find that such a gun is

extraordinarily dangerous. Stokes argues that pursuant to Blakely,

these factual findings are impermissible because they were not

determined by a jury or admitted by Stokes.

Stokes, however, never raised the Blakely issue in the

district court or in his opening brief on appeal. Thus, we review

the district court's enhancement of Stokes's sentence for plain

error. United States v. Savarese, __ F.3d __, 2004 WL 2106341, at

*5 (1st Cir. Sept. 22, 2004). See also United States v. Morgan, __

F.3d __, 2004 WL 1949061, at *5 (1st Cir. Sept. 2, 2004)

(questioning whether plain error was even available, or whether the

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issue was waived entirely, when a Blakely issue was neither raised

below nor initially in this court).

Plain error is an extremely deferential standard; errors

will be corrected only if "(1) . . . an error occurred (2) which

was clear or obvious and which not only (3) affected [his]

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." Id.

(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

In applying the plain error standard after Blakely, we have held

that no plain error occurs where the facts underlying the

enhancement were undisputed. Savarese, 2004 WL 2106341 at *6

(holding that a defendant who did not dispute the factual basis

underlying the sentence enhancement forecloses a finding of plain

error).

We have also noted, and now emphasize, that any "error in

sentencing should be held harmless so long as the evidence for the

trial judge's factual findings is overwhelming and no reasonable

jury could have disagreed with them." Morgan, 2004 WL 1949061 at

*5 (citing Sustache-Rivera v. United States, 221 F.3d 8, 18-19 (1st

Cir. 2000)). That is, if the evidence overwhelmingly proves the

factual basis underlying the sentence enhancement, we will find no

plain error for the judge's failure to submit the facts to a jury.

We simply fail to see how a judicial finding for sentence

enhancement, explicitly sanctioned by the Sentencing Guidelines,

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and overwhelmingly proved at trial, would seriously affect the

fairness, integrity, or public reputation of judicial proceedings.

See Johnson v. United States, 520 U.S. 461, 470 (1997)(holding that

the district court's failure to submit the issue of materiality to

the jury was not an error that seriously affected the fairness,

integrity or public reputation of judicial proceedings because the

evidence supporting materiality was overwhelming and essentially

uncontroverted at trial).

Here, the judge's findings -- that Stokes used an AK-47

during a crime of violence, and that such a gun is extraordinarily

dangerous -- were "overwhelmingly" proven, and therefore not

plainly erroneous. Evidence establish that during hot pursuit,

Officer Jones noticed an AK-47 five feet from where the "shorter

man's" foot had been stuck, that the shorter man was Stokes, and

that the pursuit stemmed from the shooting of three individuals,

one of whom died,2 with slugs from the AK-47. Moreover, the jury

-- in convicting Stokes -- necessarily had to find that Stokes

possessed the same AK-47 charged in the indictment,3 discussed in

2
Stokes had disputed the "facts of [Wiggins's] murder" for
sentence enhancement. Stokes was acquitted for the first-degree
murder of Wiggins in state court. The district court explicitly
stated that it would not consider Wiggins's murder for sentence
enhancement: "a finding of responsibility for second degree murder
would have no impact on Stokes's ultimate sentence." Stokes, 2000
WL 246478, at * 4.
3
The indictment charged Stokes with possessing a "firearm, to
wit: a Polytechnologies, AK-47, Model 47/S, 7/62 x 39 mm. caliber,
semi-automatic rifle, bearing serial number P4705703, and

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the testimony, and offered into evidence. Since the evidence

overwhelmingly proved that Stokes possessed and used a weapon (an

AK-47) and ammunition (7.62 caliber) in connection with a crime of

violence (the shooting of Kenneth and Bettie Pounds), the court's

failure to submit this issue to the jury was not plainly erroneous;

it did not seriously affect the fairness, integrity or public

reputation of judicial proceedings.

Likewise, the district court did not plainly err in

finding that the particular AK-47 and ammunition were

"extraordinarily dangerous." In determining the extent of an

upward departure for a "weapon or dangerous instrumentality," the

Sentencing Guidelines state that a court may consider the

dangerousness of the weapon, the manner in which it is used (such

as whether it was discharged), and the extent to which its use

endangered others. U.S.S.G. § 5K2.6. Here, evidence establish

that the weapon was a semiautomatic AK-47 with a high capacity,

that the bullets fired at the Pounds's home and into the street

came from this particular AK-47, and that the AK-47 was discharged

at least thirteen times that evening. The government also

presented testimony -- considered by the jury in convicting Stokes

-- that the AK-47 is a high-powered rifle used by the military and

terrorists, and that the armor-piercing bullets were large and

powerful. Given the overwhelming evidence supporting the AK-47's

ammunition, to wit: rounds of 7.62 x 39 mm. caliber ammunition."

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dangerousness, we simply fail to see how the court plainly erred in

finding this fact to enhance Stokes's sentence.

Although the future of the Federal Sentencing Guidelines

remains uncertain, see United States v. Booker, 375 F.3d 508 (7th

Cir. 2004), cert. granted, 73 U.S.L.W. 3073, 3074, 542 U.S. ___

(Aug. 2, 2004)(No. 04-104); United States v. Fanfan, 2004 WL

1723114, cert. granted before judgment, 73 U.S.L.W. 3073, 3074, 542

U.S. ___ (Aug. 2, 2004)(No. 04-105), they are not plainly invalid

at present. Moreover, even if Blakely is held to apply to the

Federal Guidelines, we find no basis for reversal for the reasons

stated above. We therefore hold that the court did not plainly err

in enhancing Stokes's sentence.

Affirmed.

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