United States v. Brown ( 1999 )

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    <pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1707 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                           ADAM BROWN, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>         [Hon. Reginald C. Lindsay, U.S. District Judge] <br>         [Hon. Edward F. Harrington, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Coffin, Senior Circuit Judge, <br> <br>                    and Boudin, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Paul F. Markham, by appointment of the Court, for appellant. <br>    Donald L. Cabell, Assistant United States Attorney, with whom <br>Donald K. Stern, United States Attorney, was on brief, for <br>appellee. <br> <br> <br>                       ____________________ <br> <br>                         March 3, 1999 <br>                       ____________________

             TORRUELLA, Chief Judge.  Before the Court is Defendant- <br>appellant Adam Brown's appeal of: (1) the denial of his motion to <br>suppress evidence found during his arrest, and (2) his sentence of <br>100 months imprisonment for possession of a stolen firearm.  We <br>affirm the judgment of the district court in both respects. <br>                            BACKGROUND <br>          On May 3, 1996, plainclothes Boston police officers Brian <br>Black, Joseph Freeman, and Susan Antonucci were on patrol in an <br>unmarked police car in the Roxbury area of Boston, Massachusetts.  <br>As they approached the apartment building located at 150 Walnut <br>Avenue, they observed Brown and another male leaving the building.  <br>The officers decided to speak with the two individuals, so they <br>stopped the car.  Officer Black claims that he said to them, <br>"Boston Police.  May I have a word with you?"  When the men turned <br>around and began to walk back toward the apartment building, <br>Officer Black got out of the car and again said, "Boston Police.  <br>May I speak with you?"  Brown then walked back inside the apartment <br>building, and the other individual walked around the side of the <br>building.  Officer Black followed Brown into the building and saw <br>Brown walking up a stairwell.  Officer Black started up the stairs <br>and again said, "Boston Police.  May I have a word with you?"  At <br>this point, Brown pushed Officer Black and tried to flee up the <br>stairs.  Officer Black then tackled Brown, and Officers Antonucci, <br>Freeman, and William O'Hara, who was already in the building lobby <br>on an unrelated matter, assisted in arresting Brown.  During <br>Brown's arrest, the officers found a .357 caliber revolver -- later <br>found to be stolen -- on Brown's person. <br>          On July 17, 1996, Brown was charged with possession of a <br>firearm by a felon in violation of 18 U.S.C.  922(g)(1).  Brown <br>moved to suppress the firearm and other evidence recovered at his <br>arrest.  He denied pushing Officer Black and argued that the <br>officers possessed neither probable cause to arrest nor reasonable <br>suspicion to warrant an investigative stop.  After hearing <br>testimony from Officers Black, Antonucci, and O'Hara, the district <br>court denied Brown's motion to suppress.  The court found that, <br>while the events that occurred prior to the altercation on the <br>stairwell would not have been sufficient to justify an arrest or <br>investigative stop, once Brown pushed Officer Black on the <br>stairwell, Officer Black had probable cause to arrest Brown for <br>assault and battery on a police officer. <br>     After the government filed a superseding information, <br>Brown waived indictment and entered a conditional guilty plea to <br>one count of possession of a stolen firearm in violation of 18 <br>U.S.C.  922(j), reserving the right to appeal the denial of his <br>motion to suppress and his sentence.  At sentencing, Brown's base <br>offense level was set at 24, pursuant to U.S.S.G.  2K2.1(a)(2), <br>because Brown had at least two prior felony convictions of either <br>a crime of violence or a drug offense.  Over Brown's objection, the <br>district court also applied a two-level enhancement under <br> 2K2.1(b)(4) because the firearm was stolen.  After applying a <br>two-level reduction for acceptance of responsibility and <br>determining that Brown qualified for Criminal History Category VI, <br>the court found the applicable sentencing range to be 100-125 <br>months.  Brown was sentenced to 100 months imprisonment.  On <br>June 10, 1998, Brown filed a timely notice of appeal. <br>                            DISCUSSION <br>I.  The District Court's Denial of Brown's Motion to Suppress <br>     Brown first argues that his arrest was made in violation <br>of the Fourth Amendment, requiring suppression of the firearm <br>seized from him at the time of his arrest.  In his motion to <br>suppress below, Brown argued that he did not push Officer Black and <br>that the officers did not have probable cause or reasonable <br>suspicion to stop him based solely on the fact that he walked away <br>from officers in plain clothes.  On appeal, Brown does not dispute <br>that he pushed Officer Black.  Rather, he now argues that he acted <br>reasonably in pushing Officer Black and therefore that there was <br>not probable cause to arrest him even after he did so.  This is the <br>first time Brown has advanced this argument. <br>     We review the denial of a motion to suppress under a <br>bifurcated standard.  See United States v. Cardoza, 129 F.3d 6, 13 <br>(1st Cir. 1997).  We review the district court's findings of fact <br>for clear error and review the district court's conclusions of law <br>de novo.  See id.  However, where a defendant has not first raised <br>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 <br>(1998). <br>     Brown claims that he reasonably feared for his safety and <br>had the right to defend himself when Officer Black followed him <br>into the building.  From this, he argues that Officer Black had no <br>probable cause to arrest him for assault and battery on a police <br>officer.  This argument fails because Brown's alleged fear for his <br>safety does not negate the probable cause perceived by Officer <br>Black.  The inquiry into probable cause to arrest focuses on what <br>the officer knew at the time of arrest.  See United States v. <br>Bizier, 111 F.3d 214, 216 (1st Cir. 1997).  The fact that Brown may <br>not have known that Officer Black was a police officer may serve as <br>a defense to a subsequent charge of assault and battery on a police <br>officer, see Commonwealth v. Francis, 511 N.E.2d 38, 40 (Mass. App. <br>1987), but it does not invalidate the arrest because it has no <br>impact on the information possessed by Officer Black at the time of <br>the arrest.  See Michigan v. DeFillipo, 443 U.S. 31, 36 (1979) <br>("The validity of the arrest does not depend on whether the suspect <br>actually committed a crime; the mere fact that the suspect is later <br>acquitted of the offense for which he is arrested is irrelevant to <br>the validity of the arrest."). Officer Black was pushed by Brown <br>after having identified himself as a police officer.  This clearly <br>provided him with probable cause to believe that Brown had <br>committed an assault and battery on a police officer. <br>     Brown also notes that the district court found that there <br>was no valid basis to stop him at any time prior to the incident on <br>the stairwell.  The government concedes as much, but this is of no <br>assistance to Brown.  There is no claim that Brown was seized until <br>after he pushed Officer Black, nor could there be.  See Californiav. Hodari D., 499 U.S. 621, 626 (1991) (rejecting contention that <br>a pursuit qualifies as a "seizure" and stating that a seizure <br>requires either physical force or submission to the assertion of <br>authority); United States v. Sealey, 30 F.3d 7, 9 (1st Cir. 1994) <br>(stating that a seizure occurs when a citizen's liberty has been <br>restrained by means of physical force or a show of authority and <br>holding that no seizure occurred when officers shouted, "Hey, <br>Steven, what's up?" from a police cruiser).  Because the probable <br>cause inquiry focuses on what the officer knew at the time of the <br>arrest, see Bizier, 111 F.3d at 216, it is immaterial whether <br>probable cause to arrest existed prior to the altercation on the <br>stairwell.   <br>     Brown apparently attempts to argue that Officer Black <br>needed probable cause or reasonable suspicion in order to enter the <br>lobby of the apartment building.  However, "[i]t is now beyond <br>cavil in this circuit that a tenant lacks a reasonable expectation <br>of privacy in the common areas of an apartment building."  United <br>States v. Hawkins, 139 F.3d 29, 32 (1st Cir.) (internal footnote <br>added) (citations omitted), cert. denied, 119 S. Ct. 566 (1998).  <br>Therefore, Officer Black's entry into the lobby of the apartment <br>building did not violate the Fourth Amendment.  See United Statesv. Cruz Pagn, 537 F.2d 554, 557-58 (1st Cir. 1976) (holding that <br>a person cannot have a reasonable expectation in a common parking <br>garage of an apartment building and therefore that the officers' <br>entry into that garage did not violate the Fourth Amendment).  <br>     Finally, Brown's counsel argued at oral argument, without <br>any supporting authority, that an officer should not be allowed to <br>manufacture probable cause by "accosting" a suspect in order to <br>provoke a reaction, which then conveniently provides probable cause <br>to arrest the suspect.  While this argument might provide an <br>intriguing question in some contexts, this is clearly not one of <br>those contexts.  Officer Black did not violate the Fourth Amendment <br>or otherwise provoke Brown prior to being pushed on the stairwell <br>by Brown; he merely followed Brown into the common area of a <br>building and requested to speak with him.  We cannot agree with <br>Brown that his assault on Officer Black was a "natural consequence" <br>of Officer Black's actions or that Brown had the "right to defend <br>himself with impunity" once Officer Black asked to speak to him.  <br>Nor can we find that an officer has provoked a suspect in order to <br>manufacture probable cause merely by asking to speak with him.  As <br>a result, we find no error in the district court's denial of <br>Brown's motion to suppress. <br> <br>II.  The District Court's Enhancement of Brown's Offense Level <br>     Under U.S.S.G.  2K2.1(b)(4) <br>     Brown's second argument is that the district court should <br>not have applied a two-level increase in his offense level under <br>U.S.S.G.  2K2.1(b)(4).  We review interpretations of the <br>sentencing guidelines de novo.  See United States v. Nez- <br>Rodrguez, 92 F.3d 14, 19 (1st Cir. 1996). <br>      Subsection (b)(4) provides for a two-level enhancement <br>if the firearm involved was stolen or had an altered or obliterated <br>serial number.  Commentary Note 12 to  2K2.1 instructs that the <br>subsection (b)(4) enhancement should not be applied for a stolen <br>firearm if: (1) the only offense to which  2K2.1 applies for a <br>given defendant is 18 U.S.C.  922(j), and (2) the defendant's base <br>offense level is determined under subsection (a)(7).  Commentary <br>Note 12 goes on to state that the (b)(4) enhancement is not applied <br>in such a situation because the base offense level has already <br>taken into account that the firearm was stolen.  Because the <br>district court calculated Brown's base offense level under <br>subsection (a)(2), not (a)(7), the court found that Commentary Note <br>12 was not applicable.  Therefore, the district court enhanced <br>Brown's offense level by two levels under subsection (b)(4). <br>     Brown claims that the district court "double-counted" the <br>stolen nature of the firearm by calculating his base offense level <br>under  2K2.1 because he pled guilty to possession of a stolen <br>firearm in violation of 18 U.S.C.  922(j), and then enhancing that <br>offense level with  2K2.1(b)(4) because the firearm was stolen. <br>The Ninth Circuit recently rejected this exact "double-counting" <br>argument in United States v. Turnipseed, 159 F.3d 383, 385-86 (9th <br>Cir. 1998).  In that case, the court denied the "double-counting" <br>claim by finding that the district court properly applied  2K2.1, <br>including subsection (b)(4) and Commentary Note 12.  See id. at <br>386.  The court did not specifically discuss whether the possession <br>of a stolen weapon was "double-counted" in calculating the <br>defendant's sentence. <br>     We agree with the Ninth Circuit's implicit holding that <br>applying the subsection (b)(4) enhancement to an individual in <br>Brown's position does not constitute "double-counting."  Sentencing <br>Guideline  2K2.1 encompasses offenses involving: (1) the unlawful <br>receipt, possession, or transportation of firearms or ammunition, <br>and (2) prohibited transactions involving firearms or ammunition. <br>It is not necessary that the firearms involved were stolen for the <br>defendant to be sentenced under  2K2.1.  Thus, it cannot be said <br>that the district court considered the stolen nature of the firearm <br>by sentencing Brown under the broad  2K2.1 sentencing guideline.  <br>     It is clear that a sentencing court takes into account <br>whether the firearm was stolen when a defendant is convicted of <br>possession of a stolen firearm under  922(j) and the court <br>calculates the defendant's base offense level under subsection <br>(a)(7).  See Commentary 12, U.S.S.G.  2K2.1.  Subsection (a) <br>provides eight categories for calculating the base offense level <br>applicable to offenses covered under  2K2.1.  Subsections (a)(1)- <br>(a)(6) provide six different base offense levels for different <br>combinations of three aggravating factors: (1) whether a type of <br>particularly dangerous firearm was involved; (2) the defendant's <br>criminal history; and (3) whether the defendant is a "prohibited <br>person."   If none of those factors is present, the defendant is <br>given a base offense level under either subsection (a)(7) or <br>(a)(8).  The lower base offense level of the two is prescribed <br>under subsection (a)(8), which is applicable for certain <br>transportation or record-keeping violations which need not involve <br>stolen firearms.  Subsection (a)(7) provides a higher base offense <br>level for all other offenses, including possession of a stolen <br>firearm in violation of  922(j). Therefore, for an individual <br>convicted under  922(j), if none of the aggravating factors <br>applies, the sentencing court's application of the higher base <br>offense level of subsection (a)(7) takes into account the stolen <br>nature of the firearm. <br>     Brown's base offense level, however, was not calculated <br>under subsection (a)(7).  Brown's base offense level was calculated <br>under subsection (a)(2) because Brown had at least two prior felony <br>convictions of either violent crimes or drug crimes.  Subsection <br>(a)(2) is applicable for all crimes to which  2K2.1 applies -- <br>whether the firearm was stolen or not -- so long as the proper <br>aggravating factors are present.  Therefore, the stolen nature of <br>the firearm was not considered in calculating Brown's base offense <br>level, meaning that subsequently considering the stolen nature of <br>the firearm in applying subsection (b)(4) was not "double- <br>counting."  Therefore, the district court properly enhanced Brown's <br>offense level under subsection (b)(4). <br>                            CONCLUSION <br>     Based on the foregoing, the district court's denial of <br>Brown's motion to suppress and application of the sentencing <br>guidelines are AFFIRMED.</pre>