United States v. Brame , 284 F. App'x 815 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1833
UNITED STATES,
Appellee,
v.
STEVEN G. BRAME,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard and Selya, Circuit Judges
and Stafford,* Senior District Judge.
Mark Diamond on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
July 11, 2008
*
Of the Northern District of Florida, sitting by designation.
Stafford, Senior District Judge. The appellant, Steven
G. Brame ("Brame"), appeals from his conviction and sentence in
this drug and firearms case. We affirm.
I. BACKGROUND
On the evening of May 6, 2006, the shift manager at a
McDonald's restaurant in Portland, Maine, called 911 to report that
he had just witnessed what he believed was a drug transaction in
the men's bathroom at the restaurant. He described one of the men
as white, with a handlebar mustache and wearing a jean jacket; the
other he described as black, wearing a blue T-shirt, baggy jeans,
and a gold chain.
Responding quickly to the shift manager's call to law
enforcement, two police officers approached the restaurant as a
black man matching the shift manager's description was seen leaving
the premises. After speaking briefly with the shift manager, the
officers located the suspect as he emerged from a nearby
convenience store. Introducing themselves, the officers explained
that they were investigating a drug transaction that had been
observed minutes earlier in the restaurant. Acting "very nervous
and fidgety," looking all around but never making eye-contact with
the officers, the suspect admitted that he had been in the bathroom
at McDonald's. He explained that he was there with his boss and
that the two had exchanged money for some work that one of them had
done for the other. When the officers asked about the nature of
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the work, the suspect "clammed up."
The suspect pulled a wallet from his pocket after the
officers asked for identification. As he did so, one of the
officers saw and grabbed a pocket knife that was also in the
suspect's pocket. Fearing that the suspect might try to run, the
officers asked the suspect to sit down on the steps leading into
the convenience store. Seated, the suspect continued to fumble
through his wallet looking for identification, ultimately producing
an identification card in the name of Steven Brame.
Asked by the officers if he had any contraband, drugs,
weapons, needles, or similar items in his possession, Brame
responded in the negative. Continuing to appear nervous and
animated, Brame repeatedly put his hands in the pockets of his
baggy jeans despite instructions to the contrary. Concerned that
Brame might have a weapon, the officers asked Brame to turn his
pockets inside out. Brame responded by pulling a small portion of
his pockets out. He did not, however, empty his pockets.
At some point, Brame stood up. As he did so, the
officers could see by the sway of his pants that Brame had a heavy
object in one of his pockets. The officers immediately told Brame
to put his hands behind his back. Brame refused to comply and
instead became "semi-aggressive." Each officer then grabbed one of
Brame's arms and pushed Brame against the wall of the building.
Brame resisted the entire time. As he was being placed in
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handcuffs, Brame said: "It's in my pocket." One of the officers
then looked down and saw the butt end of a handgun in Brame's
pocket. The officers then frisked Brame, seizing a loaded handgun,
the serial number of which had been obliterated, and a small
plastic baggie of crack cocaine that was located in the waistband
of Brame's boxer shorts. Brame was then placed under arrest. At
no time during the stop was Brame advised of his Miranda rights.
Brame was later charged in a four-count indictment with
(1) possession of five grams or more of cocaine base in violation
of 21 U.S.C. § 844(a) (Count One); (2) possession of a handgun
during and in relation to the felony described in Count One, in
violation of 18 U.S.C. § 924 (Count Two); (3) possession of a
firearm as a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2) (Count Three); and (4) possession of a
firearm that had an obliterated manufacturer's serial number in
violation of 18 U.S.C. §§ 922(k) and 924(a)(2) (Count Four).
Brame filed multiple motions to suppress after he was
arraigned. The district court denied Brame's motions, finding that
the officers lawfully stopped Brame for investigative questioning,
lawfully arrested him on suspicion of having committed a crime, and
lawfully seized the physical evidence taken from Brame's person.
The district court also determined that, with respect to any
statements made by Brame during his encounter with the officers,
Miranda warnings were not required until Brame was arrested or "in
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custody." Because the government agreed not to use, as evidence
against Brame, any statements made by Brame after his arrest, the
district court found no basis for suppression of any of Brame's
statements.
Brame appeared before the district court on January 3,
2007, to enter a conditional plea of guilty to all four counts of
the indictment. The court explained that, as to Count One, Brame
faced at least five years in prison but could be sentenced up to 20
years. As to Count Two, the court advised Brame that he was
"subject to a term of imprisonment that must be at least five years
and can be as much as life and has to be consecutive to the
sentence on Count One." On each of Counts Three and Four, Brame
was advised that the maximum penalty was ten years. Asked if he
understood these penalties, Brame replied: "Yes, sir." After
finding that there was a factual basis for the plea, that Brame
understood and voluntarily waived the rights he was surrendering by
pleading guilty, that Brame understood the penalties he was facing,
and that Brame was entering his plea voluntarily, the district
court accepted Brame's plea, conditioned on his right to appeal the
suppression rulings.
Brame was sentenced on May 23, 2007, to 144 months in
prison, the bottom of the Guidelines range of 144 to 165 months.
This sentence consisted of 84 months on Counts One, Three and Four,
to run concurrently, plus 60 months on Count Two, to run
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consecutively.
II. SUPPRESSION ISSUES
Brame contends that the district court erred when it
denied his motions to suppress. According to Brame, and contrary
to the district court's findings, the police had neither reasonable
suspicion to stop and question him nor probable cause to search and
arrest him. Brame also contends, again contrary to the district
court's findings, that he was subjected to unlawful custodial
interrogation throughout his encounter with the officers.
We review a district court's findings of fact on a
suppression motion for clear error and its conclusions of law de
novo. United States v. Vilches-Navarrete, 523 F.3d 1, 12 (1st Cir.
2008). Applying that mixed standard of review, we find no error in
the district court's denial of Brame's motions to suppress.
The record amply reveals that the officers' initial stop
of Brame was appropriate under Terry v. Ohio, 392 U.S. 1, 20 (1968)
(holding that a brief, investigative stop of a suspect requires
only a reasonable suspicion of wrongdoing). The shift manager at
McDonald's called 911 to report that he saw two men—whom the
manager well described—engaged in a drug transaction in the
restaurant's bathroom. When officers arrived at the restaurant
moments later, they saw a man who fit the manager's description
leaving the restaurant. After briefly talking with the manager,
the officers stopped the man for questioning. At that time, the
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officers clearly had reasonable suspicion that the man had just
taken part in a drug trafficking offense in the McDonald's
bathroom.
During the course of the investigatory stop, the
suspect—ultimately identified as Brame—acted in a nervous and
fidgety manner, avoided eye contact with the officers, "clammed up"
when asked to explain his story about what happened in the
bathroom, kept returning his hands to his pockets despite
instructions to the contrary, and failed fully to comply when the
officers directed him to turn his pockets inside out. Aware that
a heavy object was in one of Brame's pockets, the officers asked
Brame to put his hands behind his back. Brame refused and,
instead, became increasingly angry and aggressive. Given Brame's
behavior, the officers placed Brame in handcuffs and frisked him.
That the officers placed Brame in handcuffs did not
elevate the Terry stop into a full-blown arrest. The use of
handcuffs during the course of a stop is appropriate if officers
reasonably believe that handcuffs are necessary to protect the
officers, the public, or the suspect during the stop. United
States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998). As noted
in Acosta-Colon, "[p]olice officers engaged in an otherwise lawful
stop must be permitted to take measures—including the use of
handcuffs—they believe reasonably necessary to protect themselves
from harm, or to safeguard the security of others." Id. Here, in
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light of Brame's belligerent behavior and the officers' objectively
reasonable fears that Brame might be armed, the use of handcuffs
was entirely appropriate.
That the officers frisked Brame was also not inconsistent
with a Terry stop. As the Supreme Court held in Terry, when an
individual is subject to a lawful investigative stop, an officer
may conduct a limited frisk of that individual for weapons. Terry,
392 U.S. at 26-27. Given the circumstances in this case, a
precautionary frisk was clearly warranted.
Not until the frisk resulted in the discovery of both a
loaded weapon as well as drugs did the officers place Brame under
arrest. Then, if not before, the officers had probable cause to
believe that Brame had committed a drug trafficking offense. His
arrest and the concomitant seizure of the items found on his person
were accordingly lawful. Brame's argument to the contrary—that he
was subjected, much earlier, to a de facto arrest without probable
cause—is without merit.
Once Brame was arrested, the officers should have advised
Brame of his Miranda rights. The government, however,
appropriately addressed the officers' Miranda violation by
agreeing not to introduce any statements made by Brame subsequent
to his arrest. With respect to the statements made by Brame before
his arrest, relief under Miranda is not warranted.
In sum, like the district court, we find no merit to
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Brame's suppression arguments. We will accordingly affirm the
district court's denial of Brame's motions to suppress.
III. CONSECUTIVE SENTENCE
Brame contends that he was improperly sentenced to a
consecutive sentence for carrying a firearm during a drug
trafficking crime. Specifically, he contends that there was
insufficient evidence to establish that he possessed the firearm in
furtherance of a drug trafficking offense. Because Brame did not
raise this issue before the district court, we review for plain
error. To vacate Brame's sentence for plain error, we must find
that (1) there was error; (2) the error was plain and obvious; (3)
the error affected Brame's substantial rights; and (4) the error
impaired the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001).
We note initially that Brame entered a conditional plea
of guilty to all four counts of the indictment. Before Brame
entered his plea, the government described the evidence that it
planned to introduce at trial. Defense counsel assured the court
that he had discussed the government's proffer with Brame. After
hearing that defense counsel was satisfied that the government's
evidence was sufficient to convict Brame on all four counts, the
court asked Brame whether he disagreed with the government's
proffer. Brame said that he did not disagree with any part of the
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proffer. Indeed, Brame said that, to the best of his knowledge,
the information proffered by the government was true. The district
court thereafter announced that it found a factual basis for
Brame's plea.
Contrary to what he professed at the plea hearing, Brame
now contends that the government's evidence was not sufficient to
establish that he possessed a firearm in furtherance of a drug
trafficking offense as charged in Count Two. We are unpersuaded.
The government's evidence, which Brame did not dispute, revealed
that (1) soon after a witness observed Brame in what appeared to be
a drug trafficking transaction, Brame was found with both a baggie
of crack cocaine and a loaded, operable handgun concealed on his
person; (2) Brame was, at the time, a convicted felon who could not
lawfully possess a handgun; and (3) the serial number on the
handgun had been unlawfully obliterated. Such evidence provided
ample basis for Brame's guilty plea. The district court's decision
to impose a consecutive five-year sentence for carrying a firearm
in furtherance of a drug trafficking felony was not erroneous, much
less plainly erroneous.**
IV. PRIOR CONVICTIONS
Brame challenges the district court's use of two prior
convictions for purposes of enhancing his sentence. According to
**
Because we find no error, we need not consider whether
Brame has waived the right to assert this ground of appeal.
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Brame, there was insufficient evidence to establish that he was the
individual convicted of those two crimes. We review the district
court's findings of fact with respect to prior convictions for
clear error. United States v. Santos, 363 F.3d 19, 22 (1st Cir.
2004).
Brame filed written objections to his probation officer's
Presentence Report, challenging, among other things, the inclusion
in his criminal history of two prior convictions involving an
individual named "Frank Lollis." Brame contends that those
convictions should not have been attributed to him. In his
presentence interview, however, Brame admitted that he used the
alias "Frank Lollis." Moreover, according to Brame's probation
officer, the court documents in each of the two cases revealed that
"Steven Brame" was either the name of the defendant or an alias
used by the defendant. The same address, including apartment
number, was listed for the individual charged in those two cases;
and, when the district court asked defense counsel whether Brame
disputed the statement that he purportedly made to the presentence
investigator, namely, that he used the alias "Frank Lollis,"
counsel replied in the negative. Based on the evidence presented
to it, the district court overruled Brame's objection to the
addition of criminal history points for the two prior convictions,
finding, as a matter of fact, that the two convictions were
properly attributed to Brame. We find no clear error in the
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district court's factual finding.
V. AMENDMENT 706
Months after Brame was sentenced, Congress amended the
Sentencing Guidelines to lower by two levels the base offense level
for many crack cocaine offenders. U.S.S.G § Amend. 706. Brame was
sentenced in May of 2007, more than five months before Amendment
706 became effective on November 1, 2007. Brame mistakenly asserts
that Amendment 706 became effective before his May sentencing.
Based on his mistaken assertion, Brame contends that he should have
received the benefit of Amendment 706 at the time of his
sentencing. His contention is without merit. He may be entitled
to the benefit of Amendment 706, but he must seek relief initially
in the district court through 18 U.S.C. § 3582(c)(2). Because his
challenge here is premature, we take no view as to whether or not
Brame is entitled to the benefit of Amendment 706.
VI. CONCLUSION
For the reasons explained above, we AFFIRM the judgment
of the district court. We REMAND the case to the district court
where Brame may file, if he wishes, a motion for reduction in
sentence pursuant to the recent Guidelines amendment that lowers
the Guidelines sentencing range for certain categories of offenses
involving crack cocaine. U.S.S.G. Amend. 706.
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