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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1046
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH BREWSTER, a/k/a PATRICK BREWSTER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
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Before
Selya, Cyr and Stahl, Circuit Judges.
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Richard K. Corley on brief for appellant.
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Edwin J. Gale, United States Attorney, and Gerard B.
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Sullivan, Assistant United States Attorney, on brief for the
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United States.
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July 28, 1993
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SELYA, Circuit Judge. After selling drugs and a gun to
SELYA, Circuit Judge.
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an undercover federal agent, defendant-appellant Joseph Patrick
Brewster pled guilty to a two-count indictment charging him with
distribution of cocaine, see 21 U.S.C. 841(a)(1) (1988), and
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with being a convicted felon in possession of a firearm, see 18
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U.S.C. 922(g) (1988). Brewster appeals from the imposition of
sentence, claiming that the district court impermissibly inflated
the offense level applicable to the crimes of conviction, and,
further, that the government violated his rights by manipulating
a crucial sentencing factor. We affirm.
I. BACKGROUND
I. BACKGROUND
We take the relevant facts from the pre-sentence
investigation report (PSI Report) and the transcript of the
sentencing hearing. See, e.g., United States v. Connell, 960
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F.2d 191, 192-93 (1st Cir. 1992).
Over the course of a month, Special Agent Matthew
Horace of the federal Bureau of Alcohol, Tobacco and Firearms,
acting in an undercover capacity, met with appellant several
times to discuss the possibility of buying drugs and guns. On
June 3, 1992, their discussions came to fruition: Brewster sold
Agent Horace a small amount of crack cocaine (for $20), and,
within an hour of that transaction, also sold him an automatic
weapon (for $100). Soon thereafter, a grand jury returned the
indictment that undergirds this appeal.
On October 27, 1992, appellant entered a plea of guilty
to both counts of the indictment. The government agreed to
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recommend a prison term at the low end of the guideline
sentencing range (GSR), but without representing what the
applicable range might be. In accepting Brewster's plea, the
district court (prophetically, as matters turned out) warned
appellant that it would be impossible to predict the severity of
his sentence until the court examined the PSI Report and computed
the GSR.
In mid-December, the PSI Report emerged. Based on
Agent Horace's assertion that Brewster sold him the gun with
reason to believe that it would be used to protect a drug
operation, the probation officer recommended a four-level
increase in appellant's offense level pursuant to U.S.S.G.
2K2.1(b)(5).1 Seeking to forfend application of the
enhancement, appellant propounded a written objection challenging
the recommendation's factual basis. He also requested an
evidentiary hearing.
The district court granted the latter request, and
convened a hearing on January 7, 1993. Appellant claimed that he
had been blindsided because the government had not informed him,
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1The guideline provides:
If 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 offense, increase by four
levels.
U.S.S.G. 2K2.1(b)(5) (Nov. 1992).
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prior to his entry of a guilty plea, that facts existed
sufficient to ground an enhancement under section 2K2.1(b)(5).
The judge thereupon offered appellant the opportunity to withdraw
his plea.2 After consulting with counsel, appellant declined
the judge's invitation. The hearing proceeded.
Agent Horace testified along the lines adumbrated in
the PSI Report. He stated, in essence, that he told appellant
from the outset both of his aspiration to become a drug dealer
and of his need for a weapon to facilitate that nefarious plan.
After cross-examining Horace, appellant renewed his objection to
the use of Horace's testimony. The court again proposed that he
retract his plea. When appellant demurred, the court overruled
his objection. Appellant then testified to his own behoof,
denying that he knew of any link between the weapon and Horace's
planned drug trafficking at any time prior to the sale.
Upon completion of the hearing, the district court made
an explicit finding that appellant sold the firearm with
knowledge of the buyer's intended (narcotics-related) use of the
weapon. The court applied U.S.S.G. 2K2.1(b)(5) and sentenced
Brewster to a prison term of fifty-one months (the high end of
the resultant GSR). This appeal followed.
II. PROPRIETY OF THE ENHANCEMENT
II. PROPRIETY OF THE ENHANCEMENT
Appellant challenges the district court's deployment of
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2To its credit, the government forthrightly conceded that it
had not specifically informed appellant of Agent Horace's
detailed version of the relevant events at any time prior to, or
during, the change-of-plea hearing.
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U.S.S.G. 2K2.1(b)(5) on two principal bases. We find both
facets of the challenge to be unpersuasive.
A. Reliance on Undisclosed Information.
A. Reliance on Undisclosed Information.
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Appellant argues that a sentencing court cannot rely on
evidence not known to a defendant at the time he tenders his
plea. We disagree. Absent bad faith and the district court
found no bad faith in this instance the critical time for
disclosure of sentence-related information is not prior to the
taking of a plea, but prior to sentencing. See, e.g., Burns v.
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United States, 111 S. Ct. 2182, 2186 (1991) (discussing the need
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for "full adversary testing" of facts relevant to a defendant's
sentence); United States v. Berzon, 941 F.2d 8, 18 (1st Cir.
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1991) (explaining that a sentencing court may only rely on
information in determining a defendant's sentence if the
defendant has been given notice of the information and a fair
opportunity to meet it); United States v. Curran, 926 F.2d 59, 63
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(1st Cir. 1991) (holding that a defendant should be given advance
warning of, and an opportunity to challenge, information used to
influence severity of sentence); United States v. Picard, 464
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F.2d 215, 220 & n.9 (1st Cir. 1972) (requiring that defendant and
counsel receive some indication of the information which may
influence the sentencing decision to ensure that the right to
speak "in mitigation of punishment" is meaningful); see also Fed.
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R. Crim. P. 32.
The district court scrupulously honored this principle
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in the case at hand. The PSI Report discussed all the pertinent
information in satisfactory detail. Through that medium,
appellant received ample advance warning of Agent Horace's
allegations (the PSI Report was made available to him on December
18, 1992, approximately three weeks before sentencing took
place). He had an opportunity to challenge the allegations at an
evidentiary hearing.3 He exercised the opportunity. No more is
exigible.
Relatedly, appellant argues that it was fundamentally
unfair to "spring" the information on him only after he had
entered a guilty plea. But, although sandbagging is never to be
condoned, we see no unfairness here. Appellant was a percipient
participant in the negotiations with Horace and, therefore,
chargeable with knowledge of what was said. Moreover, the
district court repeatedly offered him the opportunity to withdraw
his plea after he had read the PSI Report and fully acquainted
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himself with the adverse information. Having freely elected not
to rescind his plea, appellant can scarcely be heard to complain
that the timing of the prosecution's disclosure placed him at an
unfair disadvantage.
B. Sufficiency of the Evidence.
B. Sufficiency of the Evidence.
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3We note that, in convening an evidentiary hearing, the
district court, solicitous of appellant's rights and sensitive to
his predicament, went the extra mile. Cf., e.g., United States
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v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992) (holding that a
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defendant is not automatically, or even usually, entitled to a
full-blown evidentiary hearing at the time of sentencing); United
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States v. Shattuck, 961 F.2d 1012, 1014-15 (1st Cir. 1992)
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(similar).
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The next question concerns the sufficiency of the
evidence relied upon by the lower court in applying section
2K2.1(b)(5). Examining a district court's application of a
sentencing guideline calls a bifurcated process into play: the
court of appeals reviews the guideline's legal meaning and scope
de novo, see United States v. St. Cyr, 977 F.2d 698, 701 (1st
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Cir. 1992), but reviews the sentencing court's factbound
determinations only to screen out manifestations of clear error.
See id.
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As to meaning and scope, the guideline in question
demands a four-level upward adjustment when the sentencing court
finds that a defendant transferred a firearm with "knowledge,
intent, or reason to believe" that it "would be used or possessed
in connection with another felony." U.S.S.G. 2K2.1(b)(5). In
United States v. Sanders, 990 F.2d 582, 585 (10th Cir. 1993), the
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court, observing the dearth of expository comment anent this
guideline, concluded that the Sentencing Commission promulgated
section 2K2.1(b)(5) in an "explanatory vacuum" and, therefore,
adopted a plain-meaning approach to its interpretation. We
follow the Tenth Circuit's lead. The settled rule that courts
should strive to apply the guidelines as written, see Stinson v.
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United States, 113 S. Ct. 1913, 1915 (1993); United States v.
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Jones, ___ F.2d ___, ___ (1st Cir. 1993) [No. 93-1189, slip op.
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at 6], has a necessary corollary: in deciphering the guidelines,
words in common usage, not specially defined, should be accorded
their ordinary meaning.
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Giving the phrase "in connection with" its ordinary
meaning leaves no doubt but that the dispositive issue in this
case turns on credibility. If Agent Horace's recital of the
relevant events is accurate, then appellant sold the gun with
reason to believe that his customer planned to use it in
connection with drug trafficking, and a sufficient nexus exists
between the weapon and the drug trafficking to warrant imposition
of the enhancement. If, however, Brewster's account is true,
then the existence of an adequate nexus becomes a much more
dubious proposition. Since appellant's sufficiency challenge
reduces to the bald assertion that Agent Horace's inculpatory
testimony was not worthy of credence a question of fact we
limit appellate review to the search for clear error.4 We
discern none.
The conflict in the evidence could scarcely be clearer.
On one hand, Brewster implored the court below to credit his
version of the events that the only time he heard Agent Horace
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4To be sure, appellant also argues that, as a matter of law,
section 2K2.1(b)(5) does not contemplate enhancing a defendant's
sentence based only on the uncorroborated testimony of one
person. However, he cites no meaningful authority for this
proposition, and it runs counter to all the usual rules that
apply in the sentencing phase of a criminal trial. See, e.g.,
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McMillan v. Pennsylvania, 477 U.S. 79, 91-92 & n.8 (acknowledging
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that "[s]entencing courts have always operated without
constitutionally imposed burdens of proof" when considering the
level of a defendant's sentence); United States v. Tardiff, 969
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F.2d 1283, 1287 (1st Cir. 1992) (stating that "the sentencing
court has broad discretion to determine what data is, or is not,
sufficiently dependable to be used in imposing sentence");
U.S.S.G. 6A1.3 (explaining that, in sentencing, courts may
consider any relevant piece of information that possesses
"sufficient indicia of reliability to support its probable
accuracy").
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discuss his intended use for the weapon was in court, and,
court to believe Agent Horace who testified that Brewster knew
of his intentions, no reasonable person would believe the self-
furthermore, he adds on appeal that even if the agent had boasted
aggrandizing pipe-dreams of a person who bought a mere $20 worth
of crack cocaine. On the other hand, the prosecution urged the
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from the deal. The government placed this layer of frosting on
the cake, appellant says, for the sole purpose of bringing
the fact. The district judge heard and saw the two protagonists.
who buttressed this testimony with notes he had made soon after
lie primarily within the realm of the district court. See St.
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judgment.
prerogative indeed, his duty to make this sort of evaluative
He chose to credit Agent Horace's version. It was his
sentencing proceedings, as elsewhere, credibility determinations
For all intents and purposes, that ends the matter. In
his plans for the weapon from the start of the negotiations, and
basis on which we can overturn the district court's credibility-
based finding of fact. After all, "when there are two plausible
and then, at the time of sale, when it was too late to retreat
III. SENTENCING FACTOR MANIPULATION
III. SENTENCING FACTOR MANIPULATION
view cannot be clearly erroneous." Id.
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views of the record, the sentencing court's adoption of one such
his intended use for the firearm at all, he did so only once
Appellant also contends that, if Agent Horace spoke of
Cyr, 977 F.2d at 706. So it is here. There is no principled
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section 2K2.1(b)(5) into play and, thus, increasing his likely
sentence. This boils down to a claim of sentencing factor
manipulation.5 See Connell, 969 F.2d at 194-97 (discussing
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criteria for potential claims of sentencing factor manipulation).
We have previously expressed our concern that,
particularly in sting operations, "exploitative manipulation of
sentencing factors by government agents [may sometimes] overbear
the will of a person predisposed only to committing a lesser
crime." Id. at 196. That is an abiding concern but it is of
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only marginal relevance here. The facts, as the district court
supportably found them, see supra Part II(B), belie appellant's
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thesis. They do not so much as portray a case where, late in the
day, an undercover agent deliberately raised the sentencing
stakes in order to obtain a stiffer sentence for a criminal he
was poised to arrest. Rather, Agent Horace's testimony
credited, as we have said, by the district court makes it
abundantly clear that appellant knew of his customer's proposed
use for a weapon from the outset of their negotiations. When, as
now, an offense-level enhancement results from a matter that
formed part and parcel of the original negotiations between a
government agent and his target, and the criminal venture
proceeds on that basis, a claim of sentencing factor manipulation
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5Appellant describes the government's alleged activity as
sentence entrapment. As we have pointed out, however, such
phraseology tends to be misleading. We prefer the term
"sentencing factor manipulation," which places the focus of
judicial inquiry where it belongs on the government's activity
not on whether the defendant would have committed the crime but
for the government's influence. See Connell, 969 F.2d at 194.
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will not lie. Accordingly, we reject this prong of Brewster's
appeal.
IV. CONCLUSION
IV. CONCLUSION
We need go no further. Because it clearly appears that
the district court imposed a lawful sentence in a fair, unflawed
proceeding, based on findings of fact that derive adequate
support from the record, we summarily affirm the judgment below.
Affirmed. See 1st Cir. Loc. R. 27.1.
Affirmed.
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Document Info
Docket Number： 93-1046
Filed Date： 7/28/1993
Precedential Status： Precedential
Modified Date： 9/21/2015