United States v. Lewis

United States Court of Appeals
For the First Circuit

No. 03-2097

UNITED STATES,

Appellee,

v.

SHELTON LEWIS,

Defendant, Appellant.

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

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Lynch, Circuit Judge,
Leval,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Leo T. Sorokin, with whom the Federal Defender Office was on
brief, for appellant.
Donald L. Cabell, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

April 19, 2005

__________________________
*Of the Second Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Police investigating a robbery

obtained a recorded phone conversation between two suspects,

Shelton Lewis and Robert Correa, that took place while Correa was

in pre-trial detention at the Plymouth County House of Correction.

Before trial, Lewis moved to suppress the recording on the ground

that it had been intercepted in violation of Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

§§ 2510-2522. The district court denied Lewis's motion, and a jury

subsequently convicted him of being a felon in possession of a

firearm, 18 U.S.C. § 922(g)(1), interference with commerce by

robbery, 18 U.S.C. § 1951(a), and use of a firearm during a crime

of violence, 18 U.S.C. § 924(c). Following the conviction, the

court sentenced Lewis to 319 months in prison and 36 months of

supervised release. Lewis now appeals both the denial of his

suppression motion and his sentence. For the reasons set forth

below, we affirm Lewis's conviction but remand for resentencing.

I.

During the early morning of September 7, 1999, three men

robbed the Abington Ale House & Grill in Abington, Massachusetts,

at gunpoint. The following day, the police arrested Robert Correa

in connection with the robbery and detained him at the Plymouth

County House of Correction (Plymouth). On September 9, 1999, while

still at Plymouth, Correa spoke to Lewis by telephone. That call,

like almost all calls made by Plymouth inmates, was recorded.

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 The Massachusetts Department of Corrections has

authorized superintendents of its correction facilities to monitor

and record inmate phone calls. Mass. Regs. Code tit. 103,

§ 482.07(3)(d). Under this regulation, superintendents must

develop procedures to ensure that inmates have access to telephones

in a way that is both orderly and safe. Id. § 482.07(1).

Plymouth's procedure is known as the Plymouth Inmate Telephone

System policy (PCCF-482). PCCF-482 provides for the recording of

all inmate phone calls, except those to pre-specified clergy and

attorneys.

Inmates are informed in at least two ways that their

calls are monitored. First, in order to place outgoing calls,

inmates must obtain an Inmate Personal Identification Number

(IPIN). Doing so requires that they complete a form which includes

the following notice: "Your acceptance of the IPIN and use of the

inmate telephones will be deemed as consent to the conditions and

restrictions placed upon inmate telephone calls, including call

monitoring, recording, and call detail." Inmates and the

recipients of their calls are also informed that their calls are

monitored at the beginning of every call, when they hear the

following recorded message: "Nynex has a collect call from [name],

an inmate at the Plymouth County House of Correction. To refuse

this call, hang up. . . . All call detail and conversation,

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excluding approved attorney calls, will be recorded. To accept

this call, dial one now."1

The Department of Corrections regulations do not specify

whether outside law enforcement officials may listen to recorded

inmate phone calls without first obtaining a court order. However,

Plymouth policy states that "[c]riminal justice agencies outside

the Plymouth County Sheriff's Department are allowed access to

recorded tapes within the scope of their legally authorized request

(i.e. court orders). Random or general access to monitored

telephone conversations are [sic] strictly prohibited."

At some point after September 9, 1999, Massachusetts

police officer John Brooks and Brockton police detective Joseph

Cummings contacted Plymouth Telephone System Administrator George

Pyne, asking to listen to Correa's outgoing calls. Pyne

acquiesced, listening to the calls for the first time as he played

them for the officers. The parties have stipulated that the

officers subsequently subpoenaed cassette copies of the calls based

1
Correa placed the call in question to an acquaintance, who
passed the phone to Lewis at some point in the conversation.
Because Lewis was not the original recipient of the call, he did
not hear the prerecorded message informing him that the call was
being monitored. This distinction is not relevant to our decision,
which does not rest on whether Lewis consented to the recording.
We express no view as to whether the lawfulness of the interception
could be established under the consent exception, 18 U.S.C. §
2511(2)(c), as a result of the consent of the person who answered
the phone at Lewis's end. The district court did not rely on that
reasoning.

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on that session with Pyne. The government then sought to use one

of the recorded calls at Lewis's trial.

On May 25, 2000, Lewis moved to suppress the recorded

call. He asserted that by allowing Brooks and Cummings to listen

to the recording, Pyne violated Title III of the Omnibus Crime

Control and Safe Streets Act of 1968 (Title III), 18 U.S.C.

§§ 2510-2522.2 Relevant to this case, Title III prohibits the

interception of telephone conversations, subject to certain

exceptions, without a court order. 18 U.S.C. §§ 2511, 2518. Wire

or oral communications intercepted in violation of Title III are

inadmissible as evidence in court. 18 U.S.C. § 2515. The district

court denied Lewis's motion, concluding that the recorded call fell

within two of Title III's exceptions, the consent exception, 18

U.S.C. § 2511(2)(c), and the law enforcement exception, 18 U.S.C.

§§ 2510(5)(a)(ii), 2517(1). See United States v. Correa, 220 F.

Supp. 2d 61 (D. Mass. 2002).

Section 2511(2)(c) provides that, "It shall not be

unlawful . . . for a person acting under color of law to intercept

a wire, oral, or electronic communication, where . . . one of the

parties to the communication has given prior consent to such

interception." Lewis conceded that Correa had given such consent,

but argued that the exception was nonetheless inapplicable because

2
Lewis did not challenge the legality of the recording or
monitoring per se under either Title III or the Fourth Amendment.

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the scope of Correa's consent was limited by the terms set forth in

PCCF-482 and the interception here violated those terms in two

ways. First, Lewis emphasized that PCCF-482 authorizes call

monitoring for internal security purposes, while here the

monitoring was used for other investigative purposes. The court

rejected this reasoning, noting that inmates are "told merely that

all calls will be monitored and/or recorded. No indication of why

the calls are recorded is given . . . ." Correa, 220 F. Supp. 2d

at 64. Lewis also stressed that Pyne violated the terms of PCCF-

482 by allowing outside law enforcement officers to listen to the

tapes without first obtaining a court order. The court rejected

this contention as well. Although the court agreed that Pyne had

violated PCCF-482, it found that

suppression does not necessarily follow. PCCF-482 was
established, as noted earlier, under the power given
correction facility superintendents by 103 C.M.R. 482.
That regulation . . . does not confer any procedural or
substantive rights or any private cause of action not
otherwise granted by state or federal law. 103 C.M.R.
482.01. In effect, this provision of the regulation
tells defendants they must look elsewhere for a
limitation on the scope of Correa's consent.

Id. at 64-65. The court thus concluded that "Correa consented to

a monitoring and recording system that was unqualified in all

relevant aspects" and that the recording was "permissible under the

consent exception." Id. at 65.

The court then turned to Title III's law enforcement

exceptions, one related to interceptions and one to disclosure.

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For Title III purposes, 18 U.S.C. § 2510(5)(a)(ii) exempts from the

definition of "intercept" a communication acquired by a device

"being used . . . by an investigative or law enforcement officer in

the ordinary course of his duties." A different exception, 18

U.S.C. § 2517(1), provides that:

Any investigative or law enforcement officer who, by any
means authorized by this chapter, has obtained knowledge
of the contents of any wire, oral, or electronic
communication, . . . may disclose such contents to
another investigative or law enforcement officer to the
extent that such disclosure is appropriate to the proper
performance of the official duties of the officer making
or receiving the disclosure.

The statute defines "[i]nvestigative or law enforcement officer" to

include "any officer . . . of a State or political subdivision

thereof, who is empowered by law to conduct investigations of or to

make arrests for offenses enumerated in this chapter." 18 U.S.C.

§ 2510(7).

The court analyzed the applicability of these exceptions

under a three-part test. First, it found that Pyne was an

investigative or law enforcement officer for purposes of the

statute because "prison officials must be deemed, at the least, to

have authority to investigate potential criminal violations in the

interest of prison security." Correa, 220 F. Supp. 2d at 66.

Second, the court reasoned that Pyne's recording was properly made

in the "ordinary course of his duties" under § 2510(5)(a)(ii)

"because it was done pursuant to 103 C.M.R. 482 and PCCF-482, and

because Correa was not personally targeted by the recording

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program." Correa, 220 F. Supp. 2d at 66. Finally, the court

concluded that "having lawfully intercepted Correa's calls, Pyne

did not violate Title III by playing the tapes for Brooks and

Cummings." Id. The court opined that "disclosure absent a court

order was not appropriate to Pyne's official duties." Id. at 67.

But it emphasized that disclosure is also permissible under § 2517

when it is appropriate to the duties of the receiving officer.

Here, "it is beyond dispute that it was proper for Brooks and

Cummings . . . to obtain evidence against the two men by any lawful

means." Id. The court thus concluded that Title III did not

prohibit use of the recorded conversation at trial, a ruling that

Lewis now challenges on appeal.

Following a five-day trial at which the prosecution

played excerpts of the recorded conversation, a jury convicted

Lewis of all three counts on which he was indicted: being a felon

in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count I),

interference with commerce by robbery, 18 U.S.C. § 1951(a) (Count

II), and use of a firearm during a crime of violence, 18 U.S.C.

§ 924(c) (Count III). The court then sentenced Lewis to 319 months

in prison -- 235 months for Counts I and II, followed by seven

years for Count III -- and 36 months of supervised release.

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 II.

We review the district court's conclusions of law de novo

and its factual findings for clear error. United States v.

Footman, 215 F.3d 145, 154 (1st Cir. 2000).

A. Recording

Title III "generally forbids 'interceptions' of wire

communications absent prior judicial authorization." Gilday v.

Dubois, 124 F.3d 277, 296 (1st Cir. 1997). The statute defines an

"intercept" as "the aural or other acquisition of the contents of

any wire, electronic, or oral communication through the use of any

electronic, mechanical, or other device." 18 U.S.C. § 2510(4).

However, § 2510(5)(a)(ii) creates a law enforcement exception to

what constitutes an intercept. Specifically, it defines the phrase

"electronic, mechanical, or other device" to exclude "equipment

. . . being used . . . by an investigative or law enforcement

officer in the ordinary course of his duties." 18 U.S.C.

§ 2510(5)(a). In other words, the acquisition of the contents of

a communication by an investigative or law enforcement officer in

the ordinary course of his duties is not an interception for Title

III purposes. See Smith v. Dep't of Justice, 251 F.3d 1047, 1049

(D.C. Cir. 2001); United States v. Van Poyck, 77 F.3d 285, 292

(9th Cir. 1996); United States v. Feekes, 879 F.2d 1562, 1565-66

(7th Cir. 1989); United States v. Paul, 614 F.2d 115, 117 (6th Cir.

1980).

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 Our first question, then, is whether Pyne is an

"investigative or law enforcement officer," which the statute

defines as an officer "empowered by law to conduct investigations

of or to make arrests for offenses enumerated in this chapter." 18

U.S.C. § 2510(7).3 The district court found that Pyne, as the

telephone systems administrator and a prison employee, "must be

deemed, at the least, to have authority to investigate potential

criminal violations in the interest of prison security." Id. at

66. Lewis challenges this conclusion, asserting that, under

Massachusetts law, corrections officers are not empowered to

conduct investigations.

It is well-settled that federal corrections officers are

"investigative or law enforcement officers" under Title III. See

United States v. Hammond, 286 F.3d 189 (4th Cir. 2002); United

States v. Sababu, 891 F.2d 1308, 1328-29 (7th Cir. 1989); Paul, 614

F.2d at 117; Crooker v. United States Dep't of Justice, 497 F.

Supp. 500, 503 (D. Conn. 1980). Plymouth, however, is not a

federal facility, but rather part of the Massachusetts correctional

system. Thus, Lewis correctly urges us to look to local law to

3
As the district court noted, "'The relevant enumeration would
appear to be in § 2516(2), which seems to include any state felony,
i.e., offense with a potential punishment of more than one year.'"
Correa, 220 F. Supp. 2d at 66 n.3 (quoting United States v. Cheely,
814 F. Supp. 1430, 1440 n.8 (D. Alaska 1992), aff'd, 21 F.3d 914
(9th Cir. 1994), opinion amended and superseded, 36 F.3d 1439 (9th
Cir. 1994)).

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determine whether Pyne has the authority to conduct investigations

or make arrests.

Although there does not appear to be a statutory

provision expressly endowing Pyne with investigative authority, the

Plymouth phone monitoring policy, together with the laws and

regulations that dictated its adoption, indicate that Pyne has such

authority. Massachusetts law empowers the Commissioner of

Correction to "promulgate necessary rules and regulations incident

to the . . . performance of his duties," Mass. Gen. Laws ch. 124,

§ 1(q), which include "maintain[ing] safety, security and order at

all state correctional facilities." Id. § 1(b). Pursuant to this

mandate, the Commissioner promulgated regulations instructing

prison superintendents to develop a policy for inmate telephone

access whereby all calls are subject to monitoring. Mass. Regs.

Code tit. 103, § 482.07. Plymouth's phone monitoring policy, PCCF-

482, was adopted in accordance with those regulations. PCCF-482

provides, in part, that "Whenever a significant incident/event

occurs at [Plymouth] (e.g., assault, disorder, etc.), employees

authorized to utilize the [inmate telephone system] may review tape

recordings of all telephone calls made from the incident site to

determine applicable intelligence information." In other words,

Pyne, as an employee authorized to use the inmate telephone system,

is empowered to assist with investigations into events occurring at

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Plymouth. He is therefore an "investigative or law enforcement

officer."

Lewis's argument to the contrary rests on Mass. Gen. Laws

ch. 127, § 38c, which provides that "[w]henever the superintendent

of a correctional institution . . . determines that a felony has

been committed therein, he shall forthwith notify the district

attorney for the county." Lewis reasons that this district

attorney notification provision means that corrections officers do

not have the power to conduct investigations of felonies occurring

within the prison. This logic is flawed. While § 38c requires the

superintendent to notify the district attorney of a felony, it does

not preclude prison officials from investigating those felonies.

Indeed, common sense dictates otherwise. As another court aptly

noted, "[i]t is beyond question that as a part of managing and

regulating the day-to-day activities of a correctional institution,

prison officials must be empowered to investigate potential

criminal violations in order to preserve the security and orderly

management of the institution." Crooker, 497 F. Supp. at 503; see

also Gilday, 124 F.3d at 282 n.7 (noting without comment that the

United States District Court for the District of Massachusetts

determined that Massachusetts Department of Corrections officials

fall within the Title III law enforcement exception); Breest v.

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DuBois, 7 Mass. L. Rptr. 246, 1997 Mass. Super. LEXIS 288, *11-12

(Mass. Super. Ct. 1997) (similar).4

Our inquiry does not, however, end here. The law

enforcement interception exception only applies to contents of a

communication acquired "in the ordinary course of [an officer's]

duties." 18 U.S.C. § 2510(5)(a)(ii). Pyne acquired the contents

of Correa's conversation when he recorded it.5 Whether monitoring

4
It is true that at least two courts have found that detention
center employees were not law enforcement officers for purposes of
Title III. See United States v. Faulkner, 323 F. Supp. 2d 1111,
1114-16 (D. Kan. 2004); Huguenin v. Ponte, 29 F. Supp. 2d 57, 66
(D.R.I. 1998). However, those cases both involved facilities run
by private corporations under a contract with the government, and
the courts focused on the fact that employees of those private
corporations were not state officers. This reasoning is inapposite
to the present case, which involves a government-run facility, and
thus does not conflict with our conclusion that Pyne is an
"investigative or law enforcement officer" under § 2510(7).
5
Lewis disputes this point, contending that Pyne's
"acquisition of the contents" of the call did not occur until he
actually listened to the recording with Brooks and Cummings. In
support of his position, he emphasizes our statement in United
States v. Lanoue that "[t]he conversation was intercepted [i.e.,
its contents were acquired] when it was heard by someone other than
[its participants], whether by listening as the conversation took
place or by tape recording and listening thereafter." 71 F.3d 966,
981 (1st Cir. 1995), abrogated on other grounds by United States v.
Watts, 519 U.S. 148 (1997). That dictum, however, does not
foreclose the possibility that a conversation is intercepted when
it is recorded. Indeed, one of the cases we cited in Lanoue
specifically held that recording conversations constituted an
interception, "irrespective of whether defendants actually replayed
the taped conversations and heard them." George v. Carusone, 849
F. Supp. 159, 163 (D. Conn. 1994). Several of our more recent
cases further undermine Lewis's position, in that we have treated
prison recording systems as acquiring the contents of inmates'
calls without reference to whether any prison employee actually
listened to the recordings. See Footman, 215 F.3d at 154
(describing a system under which all inmate calls "are recorded and

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or recording calls "pursuant to an established prison policy" could

qualify as within "the ordinary course of correctional officers'

business within the purview of 18 U.S.C. § 2510(5)(a)" is a

question which we had previously reserved for decision. Campiti v.

Walonis, 611 F.2d 387, 392 n.4 (1st Cir. 1979); see also Footman,

215 F.3d at 154 n.11. We now join our sister circuits in answering

this question in the affirmative in the circumstances of this case.

See, e.g., Smith, 251 F.3d at 1050; Van Poyck, 77 F.3d at 292; but

see United States v. Amen, 831 F.2d 373, 378 n.1 (2d Cir. 1987)

(questioning, without deciding, whether monitoring inmate calls was

within the ordinary course of prison officials' duties).

This case thus differs markedly from the monitoring that

we held was not part of the ordinary course of prison officials'

duties in Campiti. See 611 F.2d at 390, 392. There, prison

officials allowed an inmate to place a call specifically because

they hoped to catch him making incriminating statements. Rather

subject to monitoring" as intercepting inmate calls); Gilday, 124
F.3d at 297 (advisory at the beginning of all inmate calls that
"[a]ll call detail and conversation . . . will be recorded"
notifies the call recipient that the call "will be intercepted");
see also Sanders v. Robert Bosch Corp., 38 F.3d 736, 740 (4th Cir.
1994) ("The recording of a telephone conversation alone constitutes
an 'aural . . . acquisition' of that conversation."); Pascale v.
Carolina Freight Carriers Corp., 898 F. Supp. 276, 279 (D.N.J.
1995) (same).
We need not decide whether activities by a law enforcement
officer in disclosing the recording to non-law enforcement officers
contrary to his duties could ever result in the interception being
outside the ordinary course of the officer's duties. The question
is not presented here.

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than posting an official near the telephone to monitor the inmate's

end of the conversation, as was the normal practice, prison

officials had an officer eavesdrop on the conversation by means of

a phone extension. We concluded that this monitoring was not in

the "ordinary course of [the officer's] duties," but rather "an

exceptional course of conduct for both [the monitoring officer] and

the [prison] administration." Id. at 392. Here, by contrast,

Correa's call to Lewis was recorded in accordance with regulations

set forth by the Massachusetts Department of Corrections and

Plymouth's internal policy, PCCF-482. The recording therefore fits

squarely within the case law applying the § 2510(5)(a)(ii) law

enforcement exception to "recordings made by prison authorities who

routinely monitor inmates' conversations." Smith, 251 F.3d at

1050. We agree with the district court that Pyne recorded the

calls in the ordinary course of his duties.

We emphasize the limits of this ruling. That an

individual is an investigative or law enforcement officer does not

mean that all investigative activity is in the ordinary course of

his duties. Indeed, the premise of Title III is that there is

nothing "ordinary" about the use of a device to capture

communications for investigative purposes. As one of our sister

circuits has explained:

Investigation is within the ordinary course of law
enforcement, so if "ordinary" were read literally
warrants would rarely if ever be required for electronic
eavesdropping, which was surely not Congress's intent.

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 Since the purpose of [Title III] was primarily to
regulate the use of wiretapping and other electronic
surveillance for investigatory purposes, "ordinary"
should not be read so broadly; it is more reasonably
interpreted to refer to routine noninvestigative
recording of telephone conversations.

Amati v. City of Woodstock, 176 F.3d 952, 955 (7th Cir. 1999). The

Seventh Circuit found that the routine police practice of recording

all calls to and from the police department was within the ordinary

course of law enforcement duties.6 See id. Our ruling today is

similarly circumscribed: We hold that a recording made pursuant to

a routine prison practice of monitoring all outgoing inmate calls

under a documented policy of which inmates are informed does not

constitute an interception for Title III purposes.7

B. Disclosure

After determining that Pyne's recording of the

conversation was permissible under the statute, the district court

6
Amati concludes that proof of notice is not required for a
routine practice of noninvestigatory recording to come under the
law enforcement exception. 176 F.3d at 955. Because the practice
of recording inmate calls at Plymouth was upon notice and consent
of the participants in the telephone conversations, this case does
not require us to decide whether routine recording of inmate calls
would come under the § 2510(5)(a)(ii) law enforcement exception if
notice of the practice were not provided.
7
We recognize that we have, in other contexts, referred to
recordings made under circumstances nearly identical to those in
this case as "interceptions." E.g., Footman, 215 F.3d at 154.
Those cases, however, were not decided on § 2510(5)(a)(ii) grounds
and do not reflect any judgment as to whether a recording
authorized by that section is a "lawful interception" or not an
interception at all. Our ruling today in no way disturbs the
reasoning or holdings in those cases.

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ruled that the subsequent disclosure was authorized by 18 U.S.C.

§ 2517(1), which provides that:

[a]ny investigative or law enforcement officer who, by
any means authorized in this chapter, has obtained
knowledge of the contents of any wire, oral, or
electronic communication . . . may disclose such contents
to another investigative or law enforcement officer to
the extent that such disclosure is appropriate to the
proper performance of the official duties of the officer
making or receiving the disclosure.

The court concluded that Pyne had acquired knowledge of the

contents of Lewis's conversation with Correa as authorized by both

§ 2510(5)(a)(ii) and § 2511(2)(c) and that his disclosure to Brooks

and Cummings was proper to the performance of their official duty

to obtain evidence against Correa and Lewis by any lawful means.

Although Lewis challenges several aspects of the court's

§ 2517 analysis, we need not address the merits of those challenges

here. The district court itself recognized that "Title III does

not apply to communications intercepted by any device operated 'by

an investigative or law enforcement officer in the ordinary course

of his duties.'" 220 F. Supp. 2d at 65 (emphasis added). Although

the district court then proceeded to analyze Pyne's subsequent

disclosure under § 2517, it need not have done so. Recordings

authorized by § 2510(5)(a)(ii) are "not the product of an

'interception,' consensual or otherwise, governed by Title III;

therefore, they are not subject to whatever limitations Title III

places upon the disclosure of information that does result from a

covered interception." Smith, 251 F.3d at 1049.

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 That a recording authorized by § 2510(5)(a)(ii) falls

outside of Title III is apparent from the plain language of the

statute.8 Section 2510, Title III's definition section, excludes

from the meaning of "intercept" the acquisition of the contents of

a communication via a device used by an investigative or law

enforcement officer in the ordinary course of his duties. 18

U.S.C. §§ 2510(4), (5)(a)(ii). Because Pyne's recording falls

within that definition, he did not intercept the call. Because he

did not intercept the call, Title III's restrictions on the use of

intercepted communications are inapposite. See 18 U.S.C. § 2515

(prohibiting "intercepted" communications from being "received into

8
Two of our sister circuits have reached the same conclusion
(that contents of communications acquired pursuant to § 2510(5)(a)
are exempt from Title III's restrictions) based on grounds that
would also exempt communications acquired pursuant to the §
2511(2)(c) consent exception. See In re High Fructose Corn Syrup
Antitrust Litig., 216 F.3d 621, 624-25 (7th Cir. 2000) (reasoning
from Title III's statutory structure that "if . . . the
interception does not require a warrant to be lawful, Title III
does not restrict its use"); Hammond, 286 F.3d at 193 (relying on
High Fructose Corn Syrup to conclude that "the FBI was free to use
the intercepted conversations once they were excepted under
§ 2510(5)(a)(1) or § 2511(2)(c)"). The reasoning we adopt today
does not dictate this conclusion, nor does the case require us to
decide whether the consent exception, like the law enforcement
exception, places the acquired communications outside of Title III.
But see Lanoue, 71 F.3d at 981 (noting in dictum, without
explanation, that Title III's prohibitions "would not apply in this
case if a party to the conversation gave prior consent to the
interception, 18 U.S.C. § 2511(2)(c), or if the conversation was
intercepted 'by an investigative or law enforcement officer in the
ordinary course of his duties.'").

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evidence in any trial"). Pyne's disclosure to Brooks and Cummings

was therefore not unlawful.9

III.

In two supplemental briefs, Lewis asserts that he is

entitled to resentencing in light of Blakely v. Washington, 124 S.

Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005).

Because Lewis raises this claim for the first time on appeal, we

review it for plain error. United States v. Antonakopolous, 399

F.3d 68, 76 (1st Cir. 2005). To prevail under the plain error

standard, the appellant must show: "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

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

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

Lewis's sentence of 319 months in prison was dictated in

part by the federal sentencing Guidelines and in part by statute.

For Counts I (felon in possession) and II (interference with

commerce by robbery), the court imposed a Guidelines sentence of

235 months based on Lewis's criminal history and his status as an

armed career criminal (ACC).10 For Count III, the court imposed a

9
Because we hold that the recorded conversation is admissible
on this ground, we do not address the applicability of the
§ 2511(2)(c) consent exception.
10
The armed career criminal statute provides that
In the case of a person who violates [18 U.S.C. § 922(g)]
and has three previous convictions . . . for a violent

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seven-year consecutive sentence, as mandated by statute based on

the court's finding that Lewis "brandished" (rather than merely

"carrie[d]") a firearm during a crime of violence. See 18 U.S.C.

§ 924(c)(1)(A)(ii). On appeal, Lewis attributes Booker error to

the judicial factfinding underlying his sentence, with respect both

to the ACC and brandishing determinations.

Although there is a Booker error in this case, Lewis's

argument misses the mark. The Booker error is not judicial

factfinding. Rather, the error is that "the defendant's Guidelines

sentence was imposed under a mandatory system."11 Antonakopoulos,

felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall
be . . . imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant a
probationary sentence to, such person with respect to the
conviction under section 922(g).
18 U.S.C. § 924(e)(1); see also U.S.S.G. § 4B1.4(b) (setting forth
the Guidelines offense level for an armed career criminal).
11
Lewis's argument would be unpersuasive even if we defined the
Booker error to include judicial factfinding. The ACC finding does
not implicate the Booker line of cases because prior criminal
convictions are not facts that a jury must find beyond a reasonable
doubt. See Booker, 125 S. Ct. at 756. The "brandishing"
determination did not affect Lewis's sentence under the Guidelines,
but rather under 18 U.S.C. § 924(c) itself. It was overwhelmingly
supported by the record and therefore not plainly erroneous. See
United States v. Morgan, 384 F.3d 1, 8 (1st Cir. 2004) (explaining
that improper judicial factfinding 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"). A determination that Lewis brandished the
firearm is consistent with the jury's determination that Lewis used
a gun during the robbery at the Abington Ale House and undisputed
testimony at trial that the robbers held guns to the victims' heads
and backs. This use of a gun clearly fell within the statutory

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399 F.3d at 75. In other words, Lewis's sentence is erroneous

because the sentencing court treated the Guidelines as mandatory.

Our inquiry does not end with the presence of a clear

error, however. A defendant must also demonstrate that he was

prejudiced by the error. To do so, he must "point to circumstances

creating a reasonable probability that the district court would

impose a different sentence more favorable to [him] under the new

'advisory Guidelines' Booker regime." Id. We will remand for

resentencing 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, F.3d , No. 04-1915

2005 WL 708397, at *3 (1st Cir. Mar. 29, 2005).

Lewis's sentencing colloquy indicates that he might well

fare better under the advisory Guidelines. The district court

described Lewis's sentence of 319 months as "a virtual life

sentence" given his age, 38. While acknowledging that Lewis's

extensive criminal history played a role in his sentence, the

district court also expressed concern that Lewis's Guidelines range

was significantly higher than that of his co-defendant, despite

being sentenced on the same charges. Lewis urged the court to

definition of "brandish," which means "to display all or part of
the firearm, or otherwise make the presence of the firearm known to
another person, in order to intimidate that person." 18 U.S.C. §
924(c)(4).

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adjust his sentence downward to the mandatory statutory minimum of

22 years (15 years for Counts I and II, followed by a consecutive

seven-year sentence for Count III). The following exchange between

the court and the government ensued:

Q: What do you think, do you think 22 is enough?

A: Your Honor, I just don't think there is a principled
way to get there and we have to oppose it and we do.

Q: Would you really oppose it?

A: Your Honor, if the Guidelines brought us to 22, that's
what I would be recommending, but they don't. . . . . I
have no discretion to do what law prohibits me from
doing. Again, there is no principled basis to get to
where [the defendant] is asking the Court to go. The
defendant's age, we have all talked about, it makes this
perhaps a more difficult exercise, but it's not a basis
for departing downward. The amount of pretrial
detention, it's longer in this case than it's been in
other cases, but there are a lot of reasons for
that. . . . So yes, the defendant has spent time in
pretrial detention, but I'm not aware of any cases that
say that's a basis for departing downward. . . . [T]here
is just simply no basis in the law, that I'm aware of,
for the Court to [depart from the Guidelines range to the
mandatory minimum]. . . . [T]he sentence we'd ask the
Court to impose is the lowest sentence that the Court can
impose under the law and [we] ask the Court to do so.

The court complied with the government's request, imposing the

lowest sentence it could under the mandatory Guidelines.

This sequence of events suggests that the district court

may have denied Lewis's request for an adjustment to 22 years

solely because it believed that it was bound by the Guidelines.

Under the circumstances, "we are satisfied that the district judge

might well have given a different sentence if the advisory

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guideline regime had been in force." Heldeman, 2005 WL 708397, at

*4. We therefore vacate the sentence and remand for resentencing.

This remand, however, "should not be taken as either a suggestion

or a prediction that the sentence will necessarily be altered."

Id.

Lewis's conviction is affirmed. His sentence is vacated

and remanded for further proceedings consistent with this opinion.

So ordered.

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