USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1018
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN D. STURTEVANT,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Peter B. Krupp, Federal Defender Office, for appellant.
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Sheila W. Sawyer, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for the United
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States.
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August 10, 1995
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Per Curiam. On February 7, 1992, four Boston police
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officers patrolling the Cathedral Housing Projects, observed
appellant Brian Sturtevant striking Eric Randolph about the
head. After separating the two individuals, the officers
searched Sturtevant and discovered a loaded sawed-off shotgun
concealed inside one leg of his pants. They also found two
shotgun shells in Sturtevant's right coat pocket and one
"hit" of crack cocaine inside his glove.
Sturtevant was indicted on federal charges of being a
felon in possession of a firearm, 18 U.S.C. 922(g)(1), and
possessing an unregistered firearm, 26 U.S.C. 5861(d). He
was also charged in state court with assault and battery and
possession of a controlled substance. On September 28, 1994,
Sturtevant pled guilty to the federal charges and was
subsequently sentenced to 72 months' imprisonment.
The presentence report recommended that Sturtevant
receive a four-level increase in his base offense level
pursuant to U.S.S.G. 2K2.1(b)(5), which requires a four-
level enhancement "[i]f the defendant used or possessed any
firearm or ammunition in connection with another felony
offense . . . ." The probation officer concluded that the
enhancement was warranted because Sturtevant had possessed
the sawed-off shotgun during his altercation with Randolph
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and--according to Randolph's initial statement to the
police1--had threatened to shoot Randolph prior to the
fight.
At sentencing, Sturtevant opposed the recommended
enhancement, and submitted an affidavit from Randolph, dated
November 22, 1994, in which he said that Sturtevant had never
threatened him or mentioned a gun. The government countered
with an affidavit from Randolph, dated November 28, 1994,
saying that he (Randolph) did not recall making the precise
statements recounted in the police report, but he did
remember telling the arresting officer that (1) he thought
that Sturtevant must have been carrying a gun to risk coming
into his drug territory and punching him in the face, and (2)
Sturtevant said that he was now going to be "pumping," i.e.,
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selling drugs, in Randolph's area.
At Sturtevant's request, the district judge granted a
continuance until December 16, 1994, but indicated that an
evidentiary hearing, also requested by Sturtevant, was
probably unnecessary. On December 16, 1994, the district
court applied the four-level enhancement, finding that the
possession of the shotgun played a role in emboldening
Sturtevant's actions towards Randolph. The court said that
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1The officer, who is now deceased, reported (in the
police report and before the grand jury) that Randolph said
that Sturtevant approached him prior to the fight and
declared, "get the fuck out of here, I'm taking over the drug
trade now, and if you fuck with me, I'm going to shoot you."
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it gave little weight to Randolph's statements, but explained
to Sturtevant that he made these findings "because you were
out there on the street with a deadly weapon; it might have
been in your pocket, but it was there in reserve."
The only issue on appeal is whether the district court
abused its discretion in failing to hold an evidentiary
hearing before levying the four-level enhancement. Although
Sturtevant says that an evidentiary hearing was needed to
test Randolph's credibility, he has never directly disputed
Randolph's claim--twice repeated and never repudiated by
Randolph--that Sturtevant started the fight. There was also
unrefuted evidence, independent of Randolph, that Sturtevant
actually possessed a loaded sawed-off shotgun during his
assault. The assault was a felony offense under the
guidelines. U.S.S.G. 2K2.1 comment. (n.7); M.G.L.A. ch.
265, 13A.
Given the broad reach of the "in connection with"
requirement, United States v. Thompson, 32 F.3d 1, 3 (1st
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Cir. 1994), we think that the carriage of the gun during the
assault satisfied the requirement of section 2K2.1(b)(5) that
a firearm be "used or possessed . . . in connection with
another felony offense . . . ." The courts have held
repeatedly that the presence of a readily available weapon in
a location containing drugs is enough. E.g., United States
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v. McFadden, 13 F.3d 463, 465-66 (1st Cir. 1994). Here,
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there might be enough undisputed evidence for the district
court to conclude that this assault was associated with
drugs. Still, if the enhancement turned on Sturtevant's
purpose or alleged threats, perhaps a hearing might have been
required.
But we think that on the present facts the motive for
the assault does not matter. Sturtevant carried the shotgun
on his person during his assault. The connection between
that crime (the assault) and the gun seems to us no less
close than the connection between a drug hideout and gun. In
each instance, the weapon provides an added sense of security
and has a substantial potential for use in the course of the
particular crime in question.2 This is not the case of an
accountant who, while forging checks, happens to have a gun
in the desk drawer.
In short, a hearing would have served no purpose.
Sturtevant was free to testify but made no request to do so,
and Randolph's testimony would not have altered the result
even if he had said that no threats were made and the reason
for the assault was a mystery.
Affirmed.
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2Compare United States v. Eaton, 890 F.2d 511, 512 (1st
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Cir. 1989), cert. denied, 495 U.S. 906 (1990) (drug case),
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with United States v. Routon, 25 F.3d 815, 819 (9th Cir.
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1994) (car theft). This court cited Routon with approval in
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United States v. Thompson, 32 F.3d 1, 6 (1st Cir. 1994).
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