United States v. Brown

United States Court of Appeals

For the First Circuit

No. 98-1707

UNITED STATES,

Appellee,

v.

ADAM BROWN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

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

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge.

Paul F. Markham, by appointment of the Court, for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom

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

appellee.

March 3, 1999

TORRUELLA, Chief Judge. Before the Court is Defendant-

appellant Adam Brown's appeal of: (1) the denial of his motion to

suppress evidence found during his arrest, and (2) his sentence of

100 months imprisonment for possession of a stolen firearm. We

affirm the judgment of the district court in both respects.

BACKGROUND

On May 3, 1996, plainclothes Boston police officers Brian

Black, Joseph Freeman, and Susan Antonucci were on patrol in an

unmarked police car in the Roxbury area of Boston, Massachusetts.

As they approached the apartment building located at 150 Walnut

Avenue, they observed Brown and another male leaving the building.

The officers decided to speak with the two individuals, so they

stopped the car. Officer Black claims that he said to them,

"Boston Police. May I have a word with you?" When the men turned

around and began to walk back toward the apartment building,

Officer Black got out of the car and again said, "Boston Police.

May I speak with you?" Brown then walked back inside the apartment

building, and the other individual walked around the side of the

building. Officer Black followed Brown into the building and saw

Brown walking up a stairwell. Officer Black started up the stairs

and again said, "Boston Police. May I have a word with you?" At

this point, Brown pushed Officer Black and tried to flee up the

stairs. Officer Black then tackled Brown, and Officers Antonucci,

Freeman, and William O'Hara, who was already in the building lobby

on an unrelated matter, assisted in arresting Brown. During

Brown's arrest, the officers found a .357 caliber revolver -- later

found to be stolen -- on Brown's person.

On July 17, 1996, Brown was charged with possession of a

firearm by a felon in violation of 18 U.S.C. 922(g)(1). Brown

moved to suppress the firearm and other evidence recovered at his

arrest. He denied pushing Officer Black and argued that the

officers possessed neither probable cause to arrest nor reasonable

suspicion to warrant an investigative stop. After hearing

testimony from Officers Black, Antonucci, and O'Hara, the district

court denied Brown's motion to suppress. The court found that,

while the events that occurred prior to the altercation on the

stairwell would not have been sufficient to justify an arrest or

investigative stop, once Brown pushed Officer Black on the

stairwell, Officer Black had probable cause to arrest Brown for

assault and battery on a police officer.

After the government filed a superseding information,

Brown waived indictment and entered a conditional guilty plea to

one count of possession of a stolen firearm in violation of 18

U.S.C. 922(j), reserving the right to appeal the denial of his

motion to suppress and his sentence. At sentencing, Brown's base

offense level was set at 24, pursuant to U.S.S.G. 2K2.1(a)(2),

because Brown had at least two prior felony convictions of either

a crime of violence or a drug offense. Over Brown's objection, the

district court also applied a two-level enhancement under

2K2.1(b)(4) because the firearm was stolen. After applying a

two-level reduction for acceptance of responsibility and

determining that Brown qualified for Criminal History Category VI,

the court found the applicable sentencing range to be 100-125

months. Brown was sentenced to 100 months imprisonment. On

June 10, 1998, Brown filed a timely notice of appeal.

DISCUSSION

I. The District Court's Denial of Brown's Motion to Suppress

Brown first argues that his arrest was made in violation

of the Fourth Amendment, requiring suppression of the firearm

seized from him at the time of his arrest. In his motion to

suppress below, Brown argued that he did not push Officer Black and

that the officers did not have probable cause or reasonable

suspicion to stop him based solely on the fact that he walked away

from officers in plain clothes. On appeal, Brown does not dispute

that he pushed Officer Black. Rather, he now argues that he acted

reasonably in pushing Officer Black and therefore that there was

not probable cause to arrest him even after he did so. This is the

first time Brown has advanced this argument.

We review the denial of a motion to suppress under a

bifurcated standard. See United States v. Cardoza, 129 F.3d 6, 13

(1st Cir. 1997). We review the district court's findings of fact

for clear error and review the district court's conclusions of law

de novo. See id. However, where a defendant has not first raised

an issue below, we review for plain error only. See United Statesv. Shea, 150 F.3d 44, 48 (1st Cir.), cert. denied, 119 S. Ct. 568

(1998).

Brown claims that he reasonably feared for his safety and

had the right to defend himself when Officer Black followed him

into the building. From this, he argues that Officer Black had no

probable cause to arrest him for assault and battery on a police

officer. This argument fails because Brown's alleged fear for his

safety does not negate the probable cause perceived by Officer

Black. The inquiry into probable cause to arrest focuses on what

the officer knew at the time of arrest. See United States v.

Bizier, 111 F.3d 214, 216 (1st Cir. 1997). The fact that Brown may

not have known that Officer Black was a police officer may serve as

a defense to a subsequent charge of assault and battery on a police

officer, see Commonwealth v. Francis, 511 N.E.2d 38, 40 (Mass. App.

1987), but it does not invalidate the arrest because it has no

impact on the information possessed by Officer Black at the time of

the arrest. See Michigan v. DeFillipo, 443 U.S. 31, 36 (1979)

("The validity of the arrest does not depend on whether the suspect

actually committed a crime; the mere fact that the suspect is later

acquitted of the offense for which he is arrested is irrelevant to

the validity of the arrest."). Officer Black was pushed by Brown

after having identified himself as a police officer. This clearly

provided him with probable cause to believe that Brown had

committed an assault and battery on a police officer.

Brown also notes that the district court found that there

was no valid basis to stop him at any time prior to the incident on

the stairwell. The government concedes as much, but this is of no

assistance to Brown. There is no claim that Brown was seized until

after he pushed Officer Black, nor could there be. See Californiav. Hodari D., 499 U.S. 621, 626 (1991) (rejecting contention that

a pursuit qualifies as a "seizure" and stating that a seizure

requires either physical force or submission to the assertion of

authority); United States v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994)

(stating that a seizure occurs when a citizen's liberty has been

restrained by means of physical force or a show of authority and

holding that no seizure occurred when officers shouted, "Hey,

Steven, what's up?" from a police cruiser). Because the probable

cause inquiry focuses on what the officer knew at the time of the

arrest, see Bizier, 111 F.3d at 216, it is immaterial whether

probable cause to arrest existed prior to the altercation on the

stairwell.

Brown apparently attempts to argue that Officer Black

needed probable cause or reasonable suspicion in order to enter the

lobby of the apartment building. However, "[i]t is now beyond

cavil in this circuit that a tenant lacks a reasonable expectation

of privacy in the common areas of an apartment building." United

States v. Hawkins, 139 F.3d 29, 32 (1st Cir.) (internal footnote

added) (citations omitted), cert. denied, 119 S. Ct. 566 (1998).

Therefore, Officer Black's entry into the lobby of the apartment

building did not violate the Fourth Amendment. See United Statesv. Cruz Pagn, 537 F.2d 554, 557-58 (1st Cir. 1976) (holding that

a person cannot have a reasonable expectation in a common parking

garage of an apartment building and therefore that the officers'

entry into that garage did not violate the Fourth Amendment).

Finally, Brown's counsel argued at oral argument, without

any supporting authority, that an officer should not be allowed to

manufacture probable cause by "accosting" a suspect in order to

provoke a reaction, which then conveniently provides probable cause

to arrest the suspect. While this argument might provide an

intriguing question in some contexts, this is clearly not one of

those contexts. Officer Black did not violate the Fourth Amendment

or otherwise provoke Brown prior to being pushed on the stairwell

by Brown; he merely followed Brown into the common area of a

building and requested to speak with him. We cannot agree with

Brown that his assault on Officer Black was a "natural consequence"

of Officer Black's actions or that Brown had the "right to defend

himself with impunity" once Officer Black asked to speak to him.

Nor can we find that an officer has provoked a suspect in order to

manufacture probable cause merely by asking to speak with him. As

a result, we find no error in the district court's denial of

Brown's motion to suppress.

II. The District Court's Enhancement of Brown's Offense Level

Under U.S.S.G. 2K2.1(b)(4)

Brown's second argument is that the district court should

not have applied a two-level increase in his offense level under

U.S.S.G. 2K2.1(b)(4). We review interpretations of the

sentencing guidelines de novo. See United States v. Nez-

Rodrguez, 92 F.3d 14, 19 (1st Cir. 1996).

Subsection (b)(4) provides for a two-level enhancement

if the firearm involved was stolen or had an altered or obliterated

serial number. Commentary Note 12 to 2K2.1 instructs that the

subsection (b)(4) enhancement should not be applied for a stolen

firearm if: (1) the only offense to which 2K2.1 applies for a

given defendant is 18 U.S.C. 922(j), and (2) the defendant's base

offense level is determined under subsection (a)(7). Commentary

Note 12 goes on to state that the (b)(4) enhancement is not applied

in such a situation because the base offense level has already

taken into account that the firearm was stolen. Because the

district court calculated Brown's base offense level under

subsection (a)(2), not (a)(7), the court found that Commentary Note

12 was not applicable. Therefore, the district court enhanced

Brown's offense level by two levels under subsection (b)(4).

Brown claims that the district court "double-counted" the

stolen nature of the firearm by calculating his base offense level

under 2K2.1 because he pled guilty to possession of a stolen

firearm in violation of 18 U.S.C. 922(j), and then enhancing that

offense level with 2K2.1(b)(4) because the firearm was stolen.

The Ninth Circuit recently rejected this exact "double-counting"

argument in United States v. Turnipseed, 159 F.3d 383, 385-86 (9th

Cir. 1998). In that case, the court denied the "double-counting"

claim by finding that the district court properly applied 2K2.1,

including subsection (b)(4) and Commentary Note 12. See id. at

386. The court did not specifically discuss whether the possession

of a stolen weapon was "double-counted" in calculating the

defendant's sentence.

We agree with the Ninth Circuit's implicit holding that

applying the subsection (b)(4) enhancement to an individual in

Brown's position does not constitute "double-counting." Sentencing

Guideline 2K2.1 encompasses offenses involving: (1) the unlawful

receipt, possession, or transportation of firearms or ammunition,

and (2) prohibited transactions involving firearms or ammunition.

It is not necessary that the firearms involved were stolen for the

defendant to be sentenced under 2K2.1. Thus, it cannot be said

that the district court considered the stolen nature of the firearm

by sentencing Brown under the broad 2K2.1 sentencing guideline.

It is clear that a sentencing court takes into account

whether the firearm was stolen when a defendant is convicted of

possession of a stolen firearm under 922(j) and the court

calculates the defendant's base offense level under subsection

(a)(7). See Commentary 12, U.S.S.G. 2K2.1. Subsection (a)

provides eight categories for calculating the base offense level

applicable to offenses covered under 2K2.1. Subsections (a)(1)-

(a)(6) provide six different base offense levels for different

combinations of three aggravating factors: (1) whether a type of

particularly dangerous firearm was involved; (2) the defendant's

criminal history; and (3) whether the defendant is a "prohibited

person." If none of those factors is present, the defendant is

given a base offense level under either subsection (a)(7) or

(a)(8). The lower base offense level of the two is prescribed

under subsection (a)(8), which is applicable for certain

transportation or record-keeping violations which need not involve

stolen firearms. Subsection (a)(7) provides a higher base offense

level for all other offenses, including possession of a stolen

firearm in violation of 922(j). Therefore, for an individual

convicted under 922(j), if none of the aggravating factors

applies, the sentencing court's application of the higher base

offense level of subsection (a)(7) takes into account the stolen

nature of the firearm.

Brown's base offense level, however, was not calculated

under subsection (a)(7). Brown's base offense level was calculated

under subsection (a)(2) because Brown had at least two prior felony

convictions of either violent crimes or drug crimes. Subsection

(a)(2) is applicable for all crimes to which 2K2.1 applies --

whether the firearm was stolen or not -- so long as the proper

aggravating factors are present. Therefore, the stolen nature of

the firearm was not considered in calculating Brown's base offense

level, meaning that subsequently considering the stolen nature of

the firearm in applying subsection (b)(4) was not "double-

counting." Therefore, the district court properly enhanced Brown's

offense level under subsection (b)(4).

CONCLUSION

Based on the foregoing, the district court's denial of

Brown's motion to suppress and application of the sentencing

guidelines are AFFIRMED.