USCA1 Opinion
March 27, 1996 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_____________
_____________
No. 95-1105
UNITED STATES,
Appellee,
v.
AEDAN C. MCCARTHY,
Defendant, Appellant.
No. 95-1106
UNITED STATES,
Appellee,
v.
JEFFREY SCOTT HUNTER,
Defendant, Appellant.
________
ERRATA SHEET
It is ordered that pages 6-7 of the opinion, released on
February 26, 1996, are modified to include the following
underlined language and the footnotes shall be renumbered as
indicated:
Following his release, Hunter remained the
focus of the Franklin robbery investigation.
The investigation involved a cooperative
effort between the Connecticut State Police,
the Federal Bureau of Investigation ("FBI"),
and, ultimately, law enforcement officials in
Alabama and Maine. During the course of the
________________________
investigation, James Hall2
revealed to
_____________________________________________
investigators that Hunter's friend "John" had
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recently replaced his Alabama driver's
_____________________________________________
license with a Connecticut license in the
_____________________________________________
name of John E. Perry. Investigators
____________________________
____________________
2Investigators also learned that James Hall is the brother
of Lance Hall, the person who rented the Sunbird for Hunter.
Neither James nor Lance Hall were involved, in any way, in the
Franklin robbery.
subsequently learned that the real John E.
____________
Perry had lost his Alabama license prior to
the Franklin bank robbery and that McCarthy
had used the alias John Perry in Florida
following an arrest there.3 The real John
E. Perry, who lived in Alabama, identified
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McCarthy as James Hardiman, an individual who
_____________________________________________
had been involved with his former wife.
_____________________________________________
Investigators also learned that, in 1991,
Hunter and McCarthy had spent time together
as cellmates in a Connecticut state prison.
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3James Hall initially told investigators that a photograph
___________________________________________________________
of the real John Perry resembled the individual he knew as
_________________________________________________________________
Hunter's friend "John." Following McCarthy's arrest, however,
_________________________________________________________________
James Hall identified McCarthy as Hunter's friend "John."
_________________________________________________________
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 95-1105
UNITED STATES,
Appellee,
v.
AEDAN C. MCCARTHY,
Defendant, Appellant,
No. 95-1106
UNITED STATES,
Appellee,
v.
JEFFREY SCOTT HUNTER,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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____________________
Before
Stahl, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Brian L. Champion with whom Friedman & Babcock was on brief for
__________________ ___________________
appellant Aedan C. McCarthy.
Henry W. Griffin for appellant Jeffrey Scott Hunter.
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Margaret D. McGaughey, Assistant United States Attorney, with
______________________
whom Jay P. McCloskey, United States Attorney, and Jonathan R.
__________________ ____________
Chapman, Assistant United States Attorney, were on brief for appellee.
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____________________
February 26, 1996
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STAHL, Circuit Judge. Following a three-day trial,
STAHL, Circuit Judge.
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a jury convicted defendants Aedan McCarthy and Jeffrey Scott
Hunter of various charges stemming from a series of bank
robberies in Alabama, Connecticut and Maine. On appeal,
McCarthy and Hunter challenge the district court's refusal to
grant their respective suppression motions. In particular,
Hunter challenges the district court's failure to suppress
evidence produced as the result of an investigatory stop
following the Connecticut robbery. McCarthy and Hunter also
raise several challenges to their sentences. After careful
review, we affirm.
I.
I.
__
Background
Background
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In reviewing a district court's denial of motions
to suppress, we recite the facts as found by the district
court to the extent that they derive support from the record
and are not clearly erroneous. See, e.g., United States v.
___ ____ ______________
Sealey, 30 F.3d 7, 8 (1st Cir. 1994). Where specific
______
findings are lacking, we view the record in the light most
favorable to the ruling, making all reasonably supported
inferences. See United States v. Kimball, 25 F.3d 1, 3 (1st
___ ______________ _______
Cir. 1994); United States v. Sanchez, 943 F.2d 110, 112 (1st
_____________ _______
Cir. 1991).
A. Hunter's Connecticut Detention
__________________________________
On July 6, 1992, around 1:45 p.m., two men robbed a
bank in Franklin, Connecticut. Each man wore a plastic,
Halloween-type mask, covering his entire face, and each was
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armed, one with a pump-action shotgun and the other with a
semi-automatic pistol. The man carrying the shotgun stood in
the bank's lobby, issuing commands, while the other vaulted
the teller's counter and collected the money. They fled the
bank in a light-blue GMC Jimmy truck.
A short time later, the Connecticut State Police
located the truck, abandoned in an industrial park less than
a mile from the bank. Witnesses reported that a red Pontiac
Sunbird bearing Rhode Island license plates recently had been
parked near the spot where the abandoned GMC Jimmy was found.
Subsequently, the police issued an updated radio bulletin,
indicating that the two suspects were now believed to be
travelling in the red Pontiac Sunbird.
About 2:30 p.m., Officer Arthur Richard of the
Norwich Police Department spotted a red Pontiac Sunbird
bearing Rhode Island license plates at a gas station, not far
from Franklin. Officer Richard reported the sighting, and,
after the car left the station, stopped the vehicle as it
prepared to enter an interstate highway. Officer Richard
ordered the driver out of the Sunbird, patted him down for
weapons and directed him to take a seat in the back of his
police cruiser. The police cruiser's internal rear door
handles were not functional and a plastic spit guard and a
wire cage separated its rear and front seats. Officer
Richard did not handcuff the driver.
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4
In response to Officer Richard's questioning, the
driver identified himself as Hunter. Officer Richard ran a
registration check on the Sunbird and learned that it was
registered to a rental agency at a Rhode Island airport.
Hunter told Richard that a friend had rented the automobile
for him because his own car was under repair. Hunter,
however, refused to identify the friend.
Within minutes, several other police officers,
including Connecticut State Troopers Jerry Hall and Louis
Heller, arrived on the scene. Trooper Hall spoke to Hunter
through the open rear door of Richard's cruiser and detected
alcohol on Hunter's breath. Hunter admitted drinking a few
beers with a friend, but declined to identify the friend. At
Hall's request, Hunter took a field sobriety test, which he
passed.
About 2:43 p.m., Trooper Hall advised Hunter of his
Miranda rights and informed him that, although he was not
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under arrest, he was being detained for investigative
purposes. Hunter stated that he understood his rights and
waived them, but nonetheless declined to say where he had
been since 1:00 p.m., stating only that he had been with a
"Born-Again-Christian" friend. At some point, Trooper Hall
explained that the officers were detaining him because his
Pontiac Sunbird matched identically the description of a
vehicle involved in a bank robbery that had occurred earlier
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5
that day. Trooper Hall continued to question Hunter
intermittently for about forty-five minutes. During that
time, other officers drove a teller from the bank by the
cruiser in an unsuccessful attempt to identify Hunter as one
of the robbers. In addition, Trooper Hall took three
Polaroid photographs of Hunter.
Meanwhile, Trooper Heller learned that the agency
registered as the owner of the Pontiac Sunbird had rented the
vehicle to Lance Hall, a black male, who had listed Hunter,
who is white, on the rental agreement as a co-driver.1
After receiving this information, Heller went to a nearby bar
and questioned patrons in an attempt to determine whether
Hunter and another individual had stopped there earlier.
Upon returning to the police cruiser in which Hunter was
still being detained, Trooper Heller asked Hunter where he
had been prior to the stop. Hunter replied that he had not
been anywhere near Franklin, but instead had spent the day at
a friend's place in the woods. Hunter, however, claimed not
to remember his friend's name nor where the place was
located. On the basis of the information he had obtained
from the rental car agency, Trooper Heller then asked Hunter
if his friend was black. With this question, Hunter became
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1. Trooper Heller obtained Lance Hall's driver's license
number from the rental agency. He obtained a physical
description of Hall after requesting a check on the license
with the Connecticut State Police.
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agitated, swore at Heller, and, while gesturing in one
general direction, told him to find out for himself. This
occurred about 3:45 p.m., approximately seventy-five minutes
after Officer Richard initially stopped Hunter.
Trooper Heller knew the area well and could think
of only one black male living in the general direction in
which Hunter had gestured. Consequently, Trooper Heller
drove to that person's house and inquired whether Hunter had
visited earlier that day. The black male living at the house
identified himself as James Hall and stated that Hunter had
been there with another man named John. According to James
Hall, Hunter and John had borrowed James Hall's truck earlier
in the day and had later returned to Hall's house to change
their clothes. After interviewing James Hall, Heller
returned to where Hunter was being detained and, at 4:43
p.m., Hunter was released.
B. The Ensuing Investigation
_____________________________
Following his release, Hunter remained the focus of
the Franklin robbery investigation. The investigation
involved a cooperative effort between the Connecticut State
Police, the Federal Bureau of Investigation ("FBI"), and,
ultimately, law enforcement officials in Alabama and Maine.
During the course of the investigation, James Hall2 revealed
____________________
2. Investigators also learned that James Hall is the brother
of Lance Hall, the person who rented the Sunbird for Hunter.
Neither James nor Lance Hall were involved, in any way, in
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7
to investigators that Hunter's friend "John" had recently
replaced his Alabama driver's license with a Connecticut
license in the name of John E. Perry. Investigators
subsequently learned that the real John E. Perry had lost his
Alabama license prior to the Franklin bank robbery and that
McCarthy had used the alias John Perry in Florida following
an arrest there.3 The real John E. Perry, who lived in
Alabama, identified McCarthy as James Hardiman, an individual
who had been involved with his former wife. Investigators
also learned that, in 1991, Hunter and McCarthy had spent
time together as cellmates in a Connecticut state prison.
As the investigation progressed, Connecticut
authorities apprised FBI agents in Alabama, who were
investigating a series of similar Alabama bank robberies, of
the events surrounding the Franklin robbery. Accordingly,
McCarthy and Hunter became suspects in the Alabama robberies.
In early 1993, Alabama FBI Agent Marshall Ridlehoover learned
that McCarthy and Hunter might be living in Chilton County,
Alabama. Agent Ridlehoover alerted the Chilton County
Sheriff's Department that the two men were suspects in a
series of bank robberies in Alabama and Connecticut and sent
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the Franklin robbery.
3. James Hall initially told investigators that a photograph
of the real John Perry resembled the individual he knew as
Hunter's friend "John". Following McCarthy's arrest,
however, James Hall identified McCarthy as Hunter's friend
"John".
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8
the department photographs of McCarthy and Hunter.
Initially, Ridlehoover told the Chilton County Sheriff's
Department that the FBI wanted to have the two men kept under
surveillance. Subsequently, Ridlehoover informed the
Sheriff's Department that a federal arrest warrant for
unlawful flight from prosecution had been issued for Hunter.
C. Alabama Arrests of Hunter and McCarthy
__________________________________________
While driving to work on the morning of April 23,
1993, Deputy Wayne Fulmer, assistant chief deputy of the
Chilton County Sheriff's Department, noticed a pickup truck
bearing Maine license plates. Because the presence of Maine
plates in Chilton County struck Fulmer as rather unusual, he
ran a registration check on the truck and discovered that the
truck was registered to a John E. Perry. Fulmer knew at this
time that FBI investigators were looking for an individual
using the alias John E. Perry in connection with a series of
bank robberies in Connecticut and Alabama.
Later that morning, a woman at the local power
company, who had been shown a photograph of Hunter, reported
that a person resembling Hunter had requested that power be
turned on at his trailer. After receiving this report,
Fulmer brought a copy of Hunter's photograph to the woman and
asked her to notify the Sheriff's Department if the man
returned. A short time later that day, the woman reported
that Hunter had returned. Upon learning this, Fulmer left
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for the power company and requested several back-up units to
meet him there. On the way, Fulmer alerted by radio the
other officers responding to the scene that an outstanding
federal warrant existed for Hunter's arrest. The first
officer to arrive at the power company identified himself to
Hunter and asked to speak to him. In response, Hunter turned
and ran. The officer radioed that the suspect was fleeing on
foot and then gave chase.
Several officers eventually caught and arrested
Hunter. A search incident to the arrest disclosed an
envelope containing $6039 in cash on Hunter's person. Over
two weeks later, on May 11, 1993, Agent Ridlehoover matched
the serial numbers of twenty bills taken from the envelope to
bills stolen from the Casco Northern Bank in Falmouth, Maine,
on April 12, 1993.
While Hunter was fleeing on foot, Deputy Fulmer,
who had yet to reach the power company, spotted the same
pickup truck, which he had seen earlier in the day, heading
away from the power company. Fulmer directed an Alabama
state trooper who was following him to turn around and stop
the truck. At this point, Fulmer did not know the identity
of either the person driving the truck or the person who had
fled on foot. After stopping the truck, the state trooper
asked the driver for identification. The driver of the
truck, McCarthy, falsely identified himself as John E. Perry
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10
and gave the trooper a Maine driver's license bearing that
name.
Subsequently about 12:15 p.m., McCarthy was taken
into custody and transported to the Chilton County
Courthouse. McCarthy was searched and approximately $2000 in
cash was found on his person. Shortly after stopping
McCarthy, an official from the Chilton County Sheriff's
Department notified Connecticut officials that McCarthy was
in custody. The Connecticut officials requested that the
Chilton County Sheriff's Department continue to hold McCarthy
while they attempted to secure an arrest warrant based on
McCarthy's alleged participation in the Franklin robbery.
Sometime after midnight, a Connecticut Superior Judge signed
an arrest warrant for McCarthy for his participation in the
Franklin robbery.4
D. Search and Seizure of McCarthy's Suitcases, Truck and
_____________________________________________________________
Storage Unit
____________
On the evening of April 23, 1993, the day of
McCarthy's arrest in Alabama, Deputy Fulmer received a
telephone call from Chilton County resident Gene Ellison.
Ellison told Fulmer that McCarthy and Hunter had been staying
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4. Several months later, the Connecticut prosecution against
McCarthy was dismissed without prejudice following the
discovery that the affidavit on which the Connecticut arrest
warrant was based included an incorrect factual statement.
Because the disposition of this appeal does not depend on the
validity of the Connecticut arrest warrant, we do not discuss
it further.
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with his neighbor, Joe Henderson, and that McCarthy and
Hunter had left some items in Henderson's trailer that Fulmer
should see. Deputy Fulmer agreed to come by Henderson's
trailer. When he arrived, Fulmer found a maroon suitcase
laying open on Henderson's kitchen table. An AK-47 assault
rifle, a pistol, extra clips and a bullet-proof vest sat atop
the suitcase in plain view. Henderson told Fulmer that the
suitcase and its contents belonged to McCarthy and asked him
to take possession of them.
Henderson further explained that he had permitted
McCarthy and Hunter to stay with him for the past six days in
return for $40 rent. Henderson knew McCarthy and Hunter
because the two men had previously rented a trailer from
Henderson's landlord, J.B. Ellison. While staying with
Henderson, McCarthy and Hunter had slept on a couch and an
easy chair in Henderson's living room and had kept their
belongings in a back bedroom that Henderson used for storage.
On Thursday, April 22, the day before the arrests, Henderson
had told the two men that he was expecting company for the
upcoming weekend and that they would have to leave. When
Henderson left for work on the morning of the arrests,
McCarthy and Hunter were preparing to move out of the
trailer.
When Henderson returned home that afternoon, Gene
Ellison told him that the police had arrested McCarthy and
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Hunter. Henderson then decided to check his trailer to see
if McCarthy and Hunter had left anything behind. In the
storage room, he found two suitcases, the maroon suitcase
that was closed and locked, and an American Tourister
suitcase that was laying open with clothes piled on top of
it. Henderson attempted to move the maroon suitcase out of
the room to a storage shed behind his trailer but was unable
to do so because the suitcase was too heavy. He asked Gene
Ellison to help him. Ellison moved the suitcase into the
other room and cut the lock off of it in order to find out
why it weighed so much. After Ellison cut off the lock,
Henderson opened the suitcase and discovered the weapons, the
bullet-proof vest and other items. Some time later,
Henderson decided he should turn the suitcase and its
contents over to the police so he asked Ellison to call the
sheriff's department.
During Deputy Fulmer's visit on the evening of
April 23, Henderson failed to tell him about the additional
American Tourister suitcase Henderson had discovered.
Several days later, however, Henderson told an FBI agent
about it during an interview. Later, at Henderson's request,
Fulmer and FBI agent Rich Schott took possession of the
suitcase. Agent Ridlehoover inventoried the American
Tourister on May 1, 1993, pursuant to standard FBI practice.
No warrant was obtained for the suitcase.
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Following McCarthy's Alabama arrest, a warrant was
obtained on April 28, 1993, to search his pickup truck.
Accordingly, investigators searched the truck, finding a
receipt for a storage unit located in Scarborough, Maine.
Subsequently, on May 12, 1993, FBI investigators obtained a
warrant to search the storage unit and its contents. The
ensuing search revealed a footlocker containing numerous
incriminating items with possible connections to the robbery
of the Casco Northern Bank. The footlocker belonged to
McCarthy, and McCarthy, using the alias John Perry, had
rented the storage unit.
E. Prior Proceedings
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Prior to trial, Hunter moved to suppress evidence
arising from the Connecticut stop and the Alabama arrests.
With respect to the Connecticut stop, Hunter sought to
suppress the statements and gesture he made during the first
seventy-five minutes of the stop that ultimately led the
police to James Hall. McCarthy moved to suppress evidence
arising from his Alabama arrest and the searches of the two
suitcases, his pickup truck and the Maine storage unit. A
magistrate judge held a two-day evidentiary hearing on the
motions and, subsequently, issued a recommended decision
denying them both. After a de novo review, the district
__ ____
court denied the motions, adopting substantially all of the
magistrate judge's recommended findings.
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At the ensuing trial, McCarthy and Hunter were
tried together before a jury on a five-count indictment
alleging various charges arising from a series of three bank
robberies in Connecticut, Alabama and Maine.5 The jury
found McCarthy and Hunter guilty of all charges, convicting
the two men on Count One of conspiring to commit bank
robberies in Connecticut, Alabama and Maine in violation of
18 U.S.C. 371, on Count Two of committing the Maine robbery
of the Casco Northern bank in violation of 18 U.S.C.
2113(a), 2113(d) and 18 U.S.C. 2, and on Count Three of
knowingly using and carrying firearms during the Casco
robbery in violation of 18 U.S.C. 924(c). The jury also
convicted McCarthy on Count Four of being an armed career
criminal in violation of 18 U.S.C. 922(g)(1), 924(e)(1),
and Hunter on Count Five of being a felon-in-possession in
violation of 18 U.S.C. 922(g)(1), 924(a)(2) and 18 U.S.C.
2. Following trial, the district court sentenced McCarthy
to 387 months imprisonment.6 The court sentenced Hunter to
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5. Specifically, Count One of indictment charged McCarthy
and Hunter with conspiring to rob the Franklin bank on July
6, 1992, the Peoples Bank in Woodstock, Alabama, on November
13, 1992, and the Casco Northern bank in Falmouth, Maine, on
April 12, 1993.
6. McCarthy was sentenced to 327 months on Count Two for
committing the Casco Northern bank robbery, to be served
concurrently to a 60-month sentence on Count One for
conspiracy, and a 180-month sentence on Count Four for being
an armed career criminal. On Count Three, the court
sentenced McCarthy to the mandatory 60-month consecutive
sentence on the 924(c) firearm violation.
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270 months imprisonment to be served consecutively to his
Connecticut state sentence for violation of probation.7
II.
II.
___
Discussion
Discussion
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On appeal, Hunter challenges the district court's
denial of his suppression motion, contending that his
Connecticut detention following the Franklin robbery and his
later Alabama arrest violated the Fourth Amendment.
Similarly, McCarthy challenges the denial of his suppression
motion, taking issue with the district court's refusal to
find error in his Alabama arrest and the subsequent search of
his two suitcases, pickup truck and storage unit. Both
defendants also raise several issues relating to their
respective sentences. We address each argument in turn.
A. The Suppression Motions
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Our review of a district court's decision to grant
or deny a suppression motion is plenary. United States v.
_____________
DeMasi, 40 F.3d 1306, 1311 (1st Cir. 1994), cert. denied, 115
______ _____ ______
S. Ct. 947 (1995). "We defer, however, to a district court's
factual findings if, on a reasonable view of the evidence,
they are not clearly erroneous." Id.; see also United States
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____________________
7. The court sentenced Hunter to 210 months on Count Two for
committing the Maine robbery, to be served concurrently to a
60 month sentence on Count One for conspiracy, and a 120
month sentence on Count Five for being a felon in possession.
On Count Three, the district court sentenced Hunter to the
mandatory 60-month consecutive sentence on the 924(c)
firearm charge.
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v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). A clear error
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exists only if, after considering all the evidence, we are
left with a definite and firm conviction that a mistake has
been made. United States v. McLaughlin, 957 F.2d 12, 17 (1st
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Cir. 1992). Moreover, we will uphold a district court's
decision to deny a suppression motion provided that any
reasonable view of the evidence supports the decision.
United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993).
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1. Hunter's Connecticut Detention
__________________________________
Hunter initially challenges the legality of the
Connecticut stop. Hunter contends that the stop constituted
a de facto arrest unsupported by probable cause, and,
__ _____
therefore, the comments and gesture he made during the first
seventy-five minutes of the stop -- leading eventually to the
discovery of James Hall -- should have been suppressed.
Furthermore, Hunter contends that the testimony of James Hall
should have been suppressed as the fruit of an illegal
arrest. We disagree.
The Fourth Amendment does not demand that probable
cause exist prior to all police action. See generally Terry
___ _________ _____
v. Ohio, 392 U.S. 1 (1968). Indeed, it is well-settled that,
____
based merely on a reasonable and articulable suspicion, a
police officer may make a brief stop or "seizure" of an
individual to investigate suspected past or present criminal
activity. See United States v. Hensley, 469 U.S. 221, 226-
___ ______________ _______
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229 (1985) (extending Terry stops to past criminal conduct);
_____
United States v. Quinn, 815 F.2d 153, 156 (1st Cir. 1987).
______________ _____
The relevant question in these cases is not whether the
police had probable cause to act, but instead whether the
actions taken were reasonable under the circumstances. See
___
United States v. Sharpe, 470 U.S. 675, 682 (1985).
_____________ ______
In determining whether a challenged action is
reasonable, and, thus, falls within the range of permissible
investigatory stops or detentions, a court should engage a
two-step inquiry, asking (1) whether the officer's action was
justified at its inception; and (2) whether the action taken
was reasonably related in scope to the circumstances
justifying the interference in the first place. Terry, 392
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U.S. at 19-20; United States v. Stanley, 915 F.2d 54, 55 (1st
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Cir. 1990). Moreover, the Supreme Court has explained that,
in such circumstances, the question of reasonableness
requires a court to "balance[] the nature and quality of the
______ _______
intrusion on personal security against the importance of the
governmental interests alleged to justify the intrusion."
Hensley, 469 U.S. at 228 (emphasis added). The inquiry is
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fact specific and a court should consider the totality of the
circumstances confronting the police at the time of the stop.
Kimball, 25 F.3d at 6; see also United States v.
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Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir. 1991), cert.
_________________ _____
denied, 502 U.S. 1030 (1992).
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At the outset, we note that Hunter essentially
concedes that Officer Richard had sufficient reasonable
suspicion to make the initial stop.8 Hunter's principal
complaint, instead, focuses on the second step of the
inquiry, arguing that the length of his detention was simply
too long. He contends that the length of the Connecticut
stop exceeded the permissible durational limits of an
investigative stop not supported by probable cause, and,
thus, made the entire scope of police conduct unreasonable
per se.
___ __
As we have noted before, however, "`there is no
talismanic time beyond which any stop initially justified on
the basis of Terry becomes an unreasonable seizure under the
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[F]ourth [A]mendment.'" Quinn, 815 F.2d at 157 (quoting
_____
United States v. Davies, 768 F.2d 893, 901 (7th Cir.), cert.
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denied, 474 U.S. 1008 (1985)); see also United States v.
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Place, 462 U.S. 696, 709-10 (1983) (declining to adopt any
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8. In his reply brief, Hunter denies conceding that the
police had sufficient reasonable suspicion to make the
initial stop. To the contrary, we think a fair reading of
his opening argument to this court and the arguments he made
in his briefs to the district court below belies this
contention. In any event, the district court's finding that
Officer Richard properly acted in initially detaining Hunter
after spotting him shortly after the robbery, driving a red
Pontiac Sunbird, is eminently supportable. The close
proximity in both distance and time to the Franklin robbery
combined with the fact that Hunter's car identically matched
the description of the vehicle the suspects were reported to
be driving are articulable and specific facts that clearly
gave rise to the reasonable suspicion needed to justify the
initial stop.
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outside time limitation on a permissible Terry stop, but
_____
holding ninety-minute detention of luggage unreasonable on
specific facts of case); United States v. Vega, 72 F.3d 507,
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514-16 (7th Cir. 1995 (upholding sixty-two minute stop; "the
crux of our inquiry is whether the nature of the restraint
meets the Fourth Amendment's standard of objective
reasonableness"). "[C]ommon sense and ordinary human
experience must govern over rigid criteria." Quinn, 815 F.2d
_____
at 157 (quoting Sharpe, 470 U.S. at 685). Indeed, whether a
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particular investigatory stop is too long turns on a
consideration of all relevant factors, including "the law
enforcement purposes to be served by the stop as well as the
time reasonably needed to effectuate those purposes."
Sharpe, 470 U.S. at 685. Moreover, a court should ask
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"whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to
detain the defendant." Id. at 686.
___
Furthermore, time of detention cannot be the sole
criteria for measuring the intrusiveness of the detention.
Clearly, from the perspective of the detainee, other factors,
including the force used to detain the individual, the
restrictions placed on his or her personal movement, and the
information conveyed to the detainee concerning the reasons
for the stop and its impact on his or her rights, affect the
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nature and extent of the intrusion and, thus, should factor
into the analysis. Cf. Zapata, 18 F.3d at 975 (distinction
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between investigatory stop and de facto arrest turns in part
__ _____
on what "a reasonable [person] in the suspect's position
would have understood his [or her] situation" to be).
Finally, the Supreme Court has admonished that, in all
events, "[a] court making this assessment should take care to
consider whether the police are acting in a swiftly
developing situation, and in such cases the court should not
indulge in unrealistic second-guessing." Sharpe, 470 U.S. at
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686.
Though the issue is exceedingly close, we believe
that, on the circumstances that obtain here, the district
court did not err in refusing to suppress Hunter's statements
and gesture leading to the discovery of James Hall.
Initially we note that, although Hunter challenges the length
of the Connecticut detention in its entirety, the statements
and gestures that he seeks to suppress occurred within the
first seventy-five minutes of the stop. Thus, we limit the
scope of our analysis accordingly and do not address whether
the district court would have erred in failing to suppress
any statements or evidence obtained later in the stop.
More importantly, when limited to this time frame,
we do not find the scope of the stop particularly
unreasonable. There is no evidence or even an allegation of
-21-
21
less than diligent behavior on the part of the police. The
officers on location used a number of different investigative
techniques in their efforts to pursue quickly any information
that might have dispelled the reasonable suspicion that
initially triggered the stop. Officer Richard ran the
registration check of the Sunbird immediately after stopping
Hunter. Trooper Hall promptly informed Hunter of his rights
and questioned him about where he had been since the time of
the robbery. Other officers brought a teller from the bank
to the scene in an attempt to establish definitively whether
or not Hunter had participated in the robbery. Trooper
Heller, once on the scene, promptly telephoned the rental
agency in an effort to learn more about the individuals who
had rented the automobile. In short, we think that the
record clearly belies any contention that the police officers
involved neglected to employ any reasonably available
alternative methods that could have significantly shortened
their inquiry. See Quinn, 815 F.2d at 158. The excessive
___ _____
length of Hunter's detention arose not because the officers
engaged in dilatory tactics, but, instead, because their
investigative efforts, though reasonable under the
circumstances, failed to dispel the suspicion that gave rise
to the stop.9
____________________
9. In Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981),
________ _______
the Court noted that "[i]f the purpose underlying a Terry
_____
stop -- investigating possible criminal activity -- is to be
-22-
22
Moreover, while it is clear that Hunter had a
constitutional right not to answer any questions, the fact
that his responses were evasive and, at times, defiant is
relevant in evaluating the scope of the officers' conduct.
See, e.g., id. (detention of forty-five to sixty minutes;
___ ____ ___
noting that it would have been unreasonable to release
defendants when their answers to initial questions raised
rather than lowered suspicion); United States v. Richards,
______________ ________
500 F.2d 1025, 1029 (9th Cir. 1974) (detention over an hour;
"implausible and evasive responses . . . indicated that
something was awry and created even more reason for the
investigation being pursued further"), cert. denied, 420 U.S.
_____ ______
924 (1975). Not only did Hunter's incomplete and vague
responses reasonably heighten the officers' suspicion that
Hunter had participated in the robbery, they also made the
attempt to dispel that suspicion more difficult. Indeed, had
Hunter cooperated initially and told Officer Richard that he
had been at James Hall's house, the length of the stop would
have been much shorter. Cf. Sharpe, 470 U.S. at 687-88
___ ______
____________________
served, the police must under certain circumstances be able
to detain the individual for longer than the brief time
period involved in Terry." See also Sharpe, 470 U.S. at 685-
_____ ___ ____ ______
86. The Court then listed, with apparent approval, a variety
of different investigative techniques, including those used
here, that police might appropriately use during the course
of an investigative stop to dispel their reasonable
suspicion. Summers, 452 U.S. at 700 n.12 (quoting 3 W.
_______
LaFave, Search and Seizure 9.2, at 36-37 (1978)).
__________________
-23-
23
(upholding detention where delay attributable in large part
to defendant's evasive attempts to avoid stop).
Next, in attempting to strike the proper balance,
we note that the governmental purposes served by the
detention in this case are substantial. Indeed, several
factors, specific to this case, reasonably enhanced the
government's interest in detaining Hunter. First, the nature
of the suspected criminal conduct, a daylight armed robbery
of a bank involving physical threats to both customers and
bank personnel, was severe. Second, the detention took place
shortly after the robbery in a nearby town not far from the
bank. As a noted commentator has explained, that "the
suspected crime is serious enough to prompt flight if the
suspect is freed, or . . . recent enough that if probable
cause soon develops it would be desirable to arrest the
suspect and subject him [or her] to a search" are both
legitimate reasons for continuing custody that must be
considered in the total balance. 3 Wayne R. LaFave, Search
______
and Seizure 9.2(f), at 386 (2d ed. 1987). Finally, the
___________
fact that at the time of the stop Hunter was preparing to
enter an interstate highway in a rented vehicle bearing out-
of-state plates weighs on the government's side of the scale.
Objectively, from the perspective of the officers on the
scene, if they had not detained Hunter at that point, he
-24-
24
could easily have left the jurisdiction and evaded the
dragnet of the Connecticut State Police.
Finally, we do not believe, on the facts of this
case, that the stop was needlessly intrusive. Although the
police detained Hunter in the back of Officer Richard's
vehicle, he was never handcuffed, see, e.g., State v. Reid,
___ ____ _____ ____
605 A.2d 1050, 1053-54 (N.H. 1992) (placing defendant in
cruiser does not make Terry stop unreasonable); cf. Quinn,
_____ ___ _____
815 F.2d at 157 n.2 (use of handcuffs does not make Terry
_____
stop de facto arrest), nor did the officers keep the rear
door to the police cruiser continuously closed. Moreover,
there is no evidence in the record to suggest that any
officer ever drew a gun on Hunter. Cf. United States v.
___ _____________
Trullo, 809 F.2d 108, 113 (1st Cir.) (use of weapons without
______
more does not elevate stop to de facto arrest), cert. denied,
_____ ______
482 U.S. 916 (1987).
Furthermore, the officers informed Hunter that,
although he was not free to leave, he was not under arrest,
and that they were detaining him only for investigative
purposes because a car identical to his Pontiac Sunbird had
been involved in a bank robbery earlier that day.
Additionally, only fifteen minutes after Officer Richard
first stopped Hunter, Trooper Hall read Hunter his Miranda
_______
rights. Clearly, timely disclosure of such information
(e.g., the reasons for the detention, and an explanation of
____
-25-
25
the detainee's rights) has the potential to reduce the stress
of such a detention and, thus, minimize its intrusiveness.
See Place, 462 U.S. at 710 (noting that incorrect information
___ _____
given to defendant by law enforcement officials during
detention militated against finding scope of stop
reasonable); United States v. LaFrance, 879 F.2d 1, 7 (1st
______________ ________
Cir. 1989) (similar); cf. Brown v. Illinois, 422 U.S. 590,
___ _____ ________
603 (1975) (fact that Miranda warnings given is relevant in
_______
determining whether statement given following illegal arrest
can be considered voluntary).
In sum, although as we have said the issue is
exceptionally close, we think that, on the record before us,
the balance tips in favor of the government. Admittedly,
Hunter's detention following the Franklin robbery was hardly
what one would normally consider "brief," and, under
circumstances different from those found here, we have no
doubt that an investigative detention of similar length would
unacceptably offend the Constitution. Nonetheless, we are
not persuaded, on the facts of this case (i.e. evidence
____
sought to be suppressed was obtained during the first
seventy-five minutes of the stop, diligent efforts by the
police to dispel reasonable suspicion, defendant's evasive
responses significantly contributing to delay, substantial
government interests in the detention, and prompt disclosure
to the defendant of his rights and the reasons for the
-26-
26
detention), that the district court erred in refusing to
suppress Hunter's statements and gesture.10
2. Hunter's Alabama Arrest
___________________________
Hunter also challenges the legality of his arrest
in Alabama. Hunter contends that, at the moment of his
arrest, the arresting officer did not have probable cause to
take Hunter into custody. This challenge is without merit.
The district court found that, at the time Hunter
was taken into custody, Deputy Fulmer and the other officers
involved in Hunter's arrest were aware of an outstanding
federal arrest warrant for Hunter. Such a finding, if
____________________
10. Furthermore, we also have substantial doubt concerning
the scope of the evidence Hunter seeks to suppress
(specifically, the testimony of James Hall). Though we
question, but need not decide, whether the government has
sufficiently developed the record below to support such a
finding, see United States v. Infante-Ruiz, 13 F.3d 498, 503
___ _____________ ____________
(1st Cir. 1994) ("[G]overnment bears burden of showing, by
reference to `demonstrated historical facts' and by a
preponderance of the evidence, that the information or item
would inevitably have been discovered by lawful means."), we
think it likely that, in the normal course of the
investigation, the government would have inevitably
discovered James Hall. Indeed, James Hall's brother, Lance,
rented the Pontiac Sunbird. Trooper Heller obtained this
information and the fact that Hunter was listed as a driver
on the rental agreement solely on the basis of the car's
license plate number. It is true that the record lacks any
evidence clearly establishing that the police would have
possessed the license plate number absent the stop, or that,
during the normal course of the investigation, officers would
have spoken to Lance Hall and necessarily have made the
connection to his brother James. Nonetheless, we do not
think it is unduly speculative to infer that such events
would have occurred. Had the police spoken to Lance Hall, it
is at least arguably reasonable that he would have directed
them to his brother James, who also knew Hunter and lived in
the vicinity of the Franklin robbery.
-27-
27
supported by the record, is a sufficient basis to support the
arrest. See Whiteley v. Warden, Wyo. State Penitentiary, 401
___ ________ _______________________________
U.S. 560, 568 (1971) ("police officers called upon to aid
other officers in executing arrest warrants are entitled to
assume that the officers requesting aid offered the
magistrate the information requisite to support an
independent judicial assessment of probable cause"); cf.
___
Hensley, 469 U.S. at 229-32 (extending Whiteley to cover
_______ ________
reliance on a flyer or bulletin to establish reasonable
suspicion justifying investigatory stops). Fulmer's
testimony at the suppression hearing, stating that, prior to
Hunter's arrest, he knew about the warrant and had alerted
the other officers involved to this fact, amply supports the
finding. The fact that Fulmer's report made subsequent to
the arrest fails to mention the warrant is of little moment.
Deputy Fulmer explained at the suppression hearing that his
report was incomplete, and the district court was fully
entitled to credit that testimony.
3. McCarthy's Alabama Arrest
_____________________________
McCarthy's challenges to his stop and arrest in
Chilton County, Alabama, on April 23, 1993, are equally
unavailing. McCarthy contends that no reasonable basis or
probable cause existed to stop his pickup truck as it drove
away from the power station. Moreover, he contends that,
even if the police had sufficient reasonable suspicion to
-28-
28
detain him briefly for investigative purposes, the detention
became an illegal de facto arrest because he was taken into
__ _____
custody and held without probable cause until 1:00 a.m. the
next day when a warrant finally issued.
First, we disagree that the district court clearly
erred in finding that Deputy Fulmer had sufficient reasonable
suspicion to have McCarthy's truck pulled over. Fulmer
testified that, at the time of the stop, he was generally
aware of the details of the ongoing Franklin investigation.
See Hensley, 469 U.S. at 229-32 (police without specific
___ _______
knowledge of facts supporting flyer or bulletin issued
concerning suspects may nonetheless rely on the flyer or
bulletin to supply reasonable suspicion justifying an
investigatory stop). He stated that he specifically knew
that McCarthy and Hunter were suspects in a series of bank
robberies, that the two men were suspected to be living
together in the area, that McCarthy was falsely using the
name John E. Perry, and that an arrest warrant existed for
Hunter. Moreover, Fulmer testified that he knew that the
Isuzu truck was registered to a "John E. Perry," and that he
believed that person to be the John E. Perry under suspicion
by the FBI. These facts alone arguably give rise to a
reasonable suspicion sufficient to justify a brief
investigatory stop of McCarthy. More importantly, adding to
this collection McCarthy's presence at the scene following
-29-
29
Hunter's flight significantly heightened the suspicion
concerning McCarthy's involvement. Thus, we find no error in
the district court's finding.
Furthermore, we note that Deputy Fulmer testified
that, at the time he ordered the stop, he did not definitely
know whether McCarthy or Hunter was driving the truck or
whether Hunter was a passenger. Clearly, it was conceivable
that Hunter, after initially fleeing on foot, could have run
to, and continued his escape in, McCarthy's Isuzu pickup
truck. Thus, independent of his suspicion about McCarthy's
involvement in the robberies, Fulmer could justifiably have
ordered the stop simply to determine whether or not Hunter
was inside the truck.
Second, we find no error in the finding that
probable cause to hold McCarthy arose shortly after the
initial stop. Under Alabama state law it is an offense to
provide illegal identification to a police officer. Ala.
Code 13A-9-18.1 ("Giving of false name or address to a law
enforcement officer."); cf. Ala. Code 13A-9-18 ("Criminal
___
impersonation."). Fulmer testified that, at the time of the
arrest, he knew McCarthy's identification of himself as Perry
was false and that such identification violated Alabama state
law. Thus, once McCarthy provided his driver's license to
the trooper who stopped him, sufficient probable cause arose
to take him into custody. We find no clear error in the
-30-
30
district court's crediting this testimony or in holding that
it provided a sufficient basis for detaining McCarthy.
4. Seizure of McCarthy's Two Suitcases
_______________________________________
McCarthy also challenges the seizure of his two
suitcases. McCarthy contends that the district court
erroneously found that the seizure of the weapons and the
other items discovered in his maroon suitcase properly came
within the "plain view" exception to the warrant requirement.
He argues that the incriminating nature of the evidence was
not immediately apparent to Deputy Fulmer. McCarthy also
contends that no credible evidence established that he owned
the seized weapons or that they were actually found in his
suitcase. With respect to his second suitcase, McCarthy
argues that the district court erred in finding that he had
no expectation of privacy in the American Tourister suitcase.
McCarthy maintains that, though he left the suitcase in
Henderson's trailer, he left it closed and locked. Moreover,
he contends that he had not abandoned the suitcase because he
intended to retrieve it later in the evening on the day of
his arrest. We find these arguments unpersuasive.
To satisfy the "plain view" exception to the
warrant requirement, the government must show that (1) the
law enforcement agent was legally in a position to observe
the seized evidence, and (2) the incriminating nature of the
evidence was "immediately apparent" to the officer. See
___
-31-
31
United States v. Giannetta, 909 F.2d 571, 578 (1st Cir.
______________ _________
1990). The incriminating nature of the evidence is
"immediately apparent," if the officer, upon observing the
evidence, has probable cause to believe the item is
contraband or evidence of a crime. Id. "A practical
___
nontechnical probability that incriminating evidence is
involved is all that is required." Texas v. Brown, 460 U.S.
_____ _____
730, 742 (1983) (quotations omitted).
While it is true that the district court failed to
make an explicit finding on the "immediately apparent" prong,
the oversight matters little in the context of this case.
Deputy Fulmer knew that McCarthy, along with Hunter, was a
suspect in a series of armed bank robberies. Without
question, the automatic weapons, ammunition and bullet-proof
vest were all potential instrumentalities of such crimes. We
think a finding that the incriminating nature of the evidence
was immediately apparent to Fulmer, implicit in the district
court's refusal to suppress the weapons and other items
seized from the suitcase, is clearly supported by the record.
We also find little merit in McCarthy's contention
that no credible evidence established that he owned the
weapons and other items seized or that they were actually in
his suitcase prior to its being opened. As an initial
matter, we note that McCarthy's contention is more
-32-
32
appropriately considered as an attack on the relevancy of the
seized weapons rather than a fourth amendment issue. If, as
McCarthy contends, he did not own the weapons and did not
store them in his suitcase, then the seizure does not violate
his fourth amendment rights because it did not intrude on his
privacy. See Sanchez, 943 F.2d at 112-13 (Fourth Amendment
___ _______
rights are personal). On the other hand, if McCarthy's
allegation that he did not own or possess the weapons and
other items is true, then they would not have been relevant
as evidence in his criminal trial. See Fed R. Evid. 401
___
(evidence is relevant if it tends to make a disputed fact
more or less probable). When, as here, the relevancy of
specific evidence turns on a condition of fact -- whether the
suitcase actually contained the seized weapons and other
items -- a court shall admit it subject to the introduction
of evidence sufficient to fulfill that condition. Fed. R.
Evid. 104(b); United States v. Trenkler, 61 F.3d 45, 53 (1st
_____________ ________
Cir. 1995).
While Gene Ellison, the person who purportedly cut
the lock off the maroon suitcase, did not testify at the
suppression hearing, we think the evidence adequately
supports the conclusion that the items seized were in the
suitcase prior to its opening. Henderson testified that,
although Ellison took the padlock off the suitcase while he
was in the other room, he, not Ellison, rummaged through the
-33-
33
suitcase and found the weapons and the bulletproof vest.
Moreover, Henderson testified that the suitcase was extremely
heavy and that he needed Ellison's assistance to move it from
the back room of his trailer. These facts reasonably support
the inference that the weapons and other items were in the
suitcase prior to Ellison's removal of the lock.
Furthermore, that the items were in the suitcase, reasonably
supports the inference that they belonged to McCarthy.
Finally, we find no clear error in the court's
finding that McCarthy had no legitimate expectation of
privacy in the contents of the American Tourister suitcase.
Based on Henderson's testimony, the district court
supportably found that McCarthy left the suitcase unlocked
and open in the back room of Henderson's trailer, a room to
which McCarthy did not have exclusive access. Thus, McCarthy
clearly had assumed the risk that Henderson might consent to
a search of the room (and that the search would extend to any
items, like the suitcase, sitting open in plain view). See,
___
e.g., United States v. Hall, 979 F.2d 77, 79 (6th Cir. 1992),
____ _____________ ____
cert. denied, 113 S. Ct. 1357 (1993). Moreover, McCarthy's
_____ ______
legitimate expectation argument is further undercut by the
fact that he left the open suitcase in Henderson's trailer
after Henderson told McCarthy that he and Hunter had to
leave. Cf. United States v. Rahme, 813 F.2d 31, 34-35 (2d
___ _____________ _____
Cir. 1987) (hotel guest had no expectation of privacy in
-34-
34
luggage left in room when, because of his arrest, he
defaulted on rent due).11
B. Sentencing Issues
_____________________
We now turn to the issues Hunter and McCarthy raise
concerning their respective sentences. Hunter complains that
the district court unfairly sentenced him to a mandatory
five-year sentence under 18 U.S.C. 924(c) while
simultaneously enhancing his total offense level for
brandishing a firearm during and in relation to the
Connecticut and Alabama robberies. Hunter also contends that
the district court erroneously ordered his entire federal
sentence to run consecutively to his unexpired state
sentence. McCarthy contends that the district court
incorrectly sentenced him as an armed career criminal under
18 U.S.C. 924(e). We discuss each argument below.
1. Standard of Review
______________________
In the sentencing context, we review factbound
matters for clear error, and such facts need only be
supported by a preponderance of the evidence. United States
_____________
v. Andujar, 49 F.3d 16, 25 (1st Cir. 1995). When the
_______
____________________
11. McCarthy also challenges the search of his Isuzu pickup
truck, arguing that it was the fruit of his illegal arrest
and the illegal search of his maroon suitcase. Because we
find no error in either his initial arrest or the search of
the suitcase, we find no error in the search of the truck.
Furthermore, we also reject McCarthy's final challenge
concerning the search of his storage shed in Maine because it
is likewise substantially predicated on the assumption that
the earlier arrest and seizures were illegal.
-35-
35
sentencing issues involve questions of law, including the
applicability of a relevant guideline, our review is de novo.
__ ____
United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).
_____________ _______
Within certain limits, decisions to impose concurrent or
consecutive sentences are committed to the judgment of the
sentencing court, and such decisions are reviewed only for an
abuse of discretion. See United States v. Whiting, 28 F.3d
___ _____________ _______
1296, 1210 (1st Cir.), cert. denied, 115 S. Ct. 378, 498,
_____ ______
499, 532 (1994).
2. Hunter's Sentencing Issues
______________________________
a. Brandishing Enhancement
___________________________
Section 2K2.4 of the Sentencing Guidelines
provides, inter alia, that a person convicted under 18 U.S.C.
_____ ____
924(c) shall be sentenced to a term of imprisonment as
required by the statute. U.S.S.G. 2K2.4(a).12 In turn,
18 U.S.C. 924(c) specifies that any individual convicted of
using a firearm during and in relation to a crime of violence
or a drug trafficking crime shall be sentenced to a mandatory
term of at least five years in prison to be served
consecutively to any other punishment. 18 U.S.C. 924(c).
Application Note 2 to U.S.S.G. 2K2.4 adds that:
Where a sentence under [ 2K2.4] is
imposed in conjunction with a sentence
for an underlying offense, any specific
____________________
12. All guidelines' citations, unless otherwise indicated,
are to the November 1994 Guidelines Manual, the manual in
effect on the date of sentencing. See U.S.S.G. 1B1.11.
___
-36-
36
offense characteristic for the
possession, use, or discharge of an
explosive or firearm . . . is not to be
applied in respect to the guideline for
the underlying offense.
U.S.S.G. 2K2.4, comment. (n.2). Thus, where a defendant
receives a mandatory consecutive sentence for use of a
firearm during a crime of violence, pursuant to 18 U.S.C.
924(c), a court should not also enhance the defendant's base
offense level for the underlying crime of violence to account
for the use of the firearm. Id.; see also U.S.S.G. 3D1.1,
___ ___ ____
comment. (n.1).
In this case, the district court treated, for
sentencing purposes, the conspiracy to commit the Alabama,
Connecticut and Maine bank robberies in Count One as three
separate counts of conspiracy to commit the three separate
bank robberies. See U.S.S.G. 1B1.2(d) ("A conviction on a
___
count charging a conspiracy to commit more than one offense
shall be treated as if the defendant had been convicted on a
separate count of conspiracy for each offense that the
defendant conspired to commit."). Accordingly, the court
calculated a separate base offense level for each conspiracy
and then combined these levels together to produce a single
total offense level. See U.S.S.G. 3D1.4. In calculating
___
the separate base offense levels for the conspiracies to
commit the Alabama and the Connecticut robberies, the
district court -- in both instances -- applied a five-level
-37-
37
enhancement for brandishing a firearm. U.S.S.G.
2B3.1(b)(2)(C). Because the 924(c) charge related to the
Maine bank robbery, however, the district court did not apply
the brandishing enhancement when calculating the base offense
level for that conspiracy. See U.S.S.G. 2K2.4, comment.
___
(n.2).
Hunter contends that the district court erred in
its calculation, contending that it should not have separated
the Alabama and Connecticut robberies from the Maine robbery
in determining whether to apply the brandishing enhancement.
Hunter argues that Application Note 2 to 2K2.4 clearly
states that where the 924(c) sentence is imposed "in
conjunction with a sentence for the underlying offense" no
enhancement may be applied, and, in this case, the underlying
offense was collectively the entire conspiracy to commit the
three bank robberies. Therefore, Hunter concludes, the
district court should not have applied the brandishing
enhancement to the conspiracies to commit the Alabama and
Connecticut robberies because they were part of the
"underlying offense." We do not agree.
We decline Hunter's invitation to read the phrase
"the underlying offense" in Application Note 2 to preclude
the application of the brandishing enhancements to the
conspiracies to commit the Alabama and Connecticut robberies.
First, 1B1.2(d) clearly instructs the sentencing court to
-38-
38
treat a count charging a conspiracy to commit multiple
offenses as separate counts of conspiracy for each offense
the defendant conspired to commit. U.S.S.G. 1B1.2(d); see
___
also U.S.S.G. 3D1.2, comment. (n.8). Thus, it is clear
____
that the Sentencing Commission does not consider, for the
purposes of applying the guidelines, a conspiracy to commit
multiple offenses as constituting one single integrated
offense.
Moreover, the district court's application of the
brandishing enhancement does not undercut the purposes of
Note 2. Application Note 2 is intended to prevent double
counting. See U.S.S.G. 2K2.4, comment. (backg'd) ("To
___
avoid double counting, when a sentence under this section is
imposed in conjunction with a sentence for an underlying
offense, any specific offense characteristic for explosive or
firearm discharge, use, or possession is not applied in
respect to such underlying offense."). In this case, no
double counting occurred. Hunter's conviction under 924(c)
was for using or carrying the firearm during and in relation
to the Maine robbery, and the district court carefully
eschewed applying the brandishing enhancement when
calculating the offense level for Hunter's conspiracy to
commit that offense. The court applied the brandishing
enhancement only when calculating the offense levels relating
to the Alabama and Connecticut robberies. Thus, the same
-39-
39
conduct did not unfairly give rise to both a sentencing
enhancement and a separate mandatory sentence under 18 U.S.C.
924(c).
b. Consecutive or Concurrent Sentences
_______________________________________
In 1988, Hunter pled guilty in Connecticut state
court to possession of cocaine with intent to sell. As a
result, he was sentenced to a term of ten years in state
prison. After serving three years, the balance of Hunter's
sentence was suspended and he was released on three years
probation. Hunter was still on probation at the time of the
Franklin robbery. Shortly after the Franklin robbery
occurred, an order charging Hunter with violation of
probation was issued, and, ultimately, on November 16, 1993,
a Connecticut state court revoked Hunter's probation and
sentenced him to seven-years imprisonment (apparently the
unexpired portion of his suspended ten-year sentence for
cocaine possession). At the time of sentencing in this case,
Hunter was serving the remainder of his Connecticut prison
term.
At Hunter's federal sentencing, the district court
ruled that his entire federal sentence should run
consecutively to his state sentence. In so ruling, the court
relied on U.S.S.G. 5G1.3(c), which provides that
the sentence for the instant offense
shall be imposed to run consecutively to
the prior undischarged term of
imprisonment to the extent necessary to
-40-
40
achieve a reasonable incremental
punishment for the instant offense.13
The court effectively held that, because the state sentence
stemmed not just from the underlying cocaine offense but also
from the separate probation violation, the federal sentence
should run consecutively to the state sentence in order to
insure the necessary incremental punishment.
____________________
13. The district court correctly ruled that neither
5G1.3(a) or (b) governed Hunter's sentencing. In relevant
part, U.S.S.G. 5G1.3 provides:
5G1.3 Imposition of a Sentence on a Defendant
__________________________________________
Subject to an Undischarged Term of Imprisonment
_______________________________________________
(a) If the instant offense was committed
while the defendant was serving a term of
imprisonment (including work release,
furlough, or escape status) or after
sentencing for, but before commencing
service of, such term of imprisonment,
the sentence for the instant offense
shall be imposed to run consecutively to
the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and
the undischarged term of imprisonment
resulted from offense(s) that have been
fully taken into account in the
determination of the offense level for
the instant offense, the sentence for the
instant offense shall be imposed to run
concurrently to the undischarged term of
imprisonment.
(c) (Policy Statement) In any other case,
the sentence for the instant offense
shall be imposed to run consecutively to
the prior undischarged term of
imprisonment to the extent necessary to
achieve a reasonable incremental
punishment for the instant offense.
-41-
41
On appeal, Hunter contends that, in applying
subsection (c) and sentencing Hunter to a wholly consecutive
federal sentence, the district court erred because it failed
to follow the method outlined in Application Note 3 to
5G1.3 for calculating the appropriate incremental punishment.
Note 3 provides that:
[t]o the extent practicable, the court
should consider a reasonable incremental
penalty to be a sentence for the instant
offense that results in a combined
_______ __ _ ________
sentence of imprisonment that
________ __ ____________ ____
approximates the total punishment that
____________ ___ _____ __________ ____
would have been imposed under 5G1.2
_____ ____ ____ _______ _____ ______
(Sentencing on Multiple Counts of
Conviction) had all of the offenses been
___ ___ __ ___ ________ ____
federal offenses for which sentences were
_______ ________
being imposed at the same time.
U.S.S.G. 5G1.3, comment. (n.3) (emphasis added); see also
___ ____
United States v. Whiting, 28 F.3d 1296, 1210-11 (1st Cir.
_____________ _______
1994) (plain error for sentencing court to impose federal
sentence wholly consecutive to state sentence without
attempting to compute the proper equivalent total punishment
called for by Note 3). Thus, Hunter contends that, before
sentencing him to a wholly consecutive sentence, the district
court should have calculated the sentence he would have
received if the revocation of probation and the instant bank
robbery offenses had all been federal offenses for which he
was sentenced at the same time. We disagree.
First, as noted, 5G1.3(c) instructs the district
court, in cases where it applies, to sentence defendants to
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consecutive sentences "to the extent necessary to achieve a
reasonable incremental punishment." Then, Application Note 3
prescribes a method for calculating the "reasonable
incremental punishment" that we have recognized applies in "a
good many of the cases likely to arise under subsection (c)."
United States v. Gondek, 65 F.3d 1, 3 (1st Cir. 1995).
______________ ______
Implicit in this recognition, however, is the fact that,
although the method applies in a "good many cases," it does
not cover every case. Indeed, as Application Note 3 itself
explains, the methodology it prescribes is intended only "to
assist the court in determining the appropriate sentence."
U.S.S.G. 5G1.3, comment. (n.3); cf. id. (cautioning that
___ ___
method should be followed only "[t]o the extent
practicable"). Therefore, while it is evident that a
sentencing court should initially look to Note 3 for guidance
in calculating an appropriate incremental punishment, it
nonetheless has discretion to follow a different course in a
small number of cases where adherence to Note 3 would be
impracticable and result in an inappropriate incremental
punishment. See, e.g., United States v. Brassell, 49 F.3d
___ ____ _____________ ________
274, 278 (7th Cir. 1995) (court has discretion in appropriate
circumstances to disregard methodology outlined in Note 3),
United States v. Torrez 40 F.3d 84, 87 (5th Cir. 1994)(same).
_____________ ______
In this case, the district court did not err by
following a different course. First, it is far from clear
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how, and if, Application Note 3 applies to the facts of this
case. None of the four detailed examples outlined in Note 3
explain how to sentence a defendant who is serving out a term
following the revocation of probation. See U.S.S.G. 5G1.3,
___
comment. (n.3). Moreover, the text of Note 3 instructs that
the incremental punishment should be calculated according to
the grouping rules set forth in 5G1.2. Section 5G1.2 (and
the other sections to which it refers), however, does not
discuss how to handle a sentenced imposed following a
probation revocation. The guidelines do discuss sentences
imposed for probation violations separately under U.S.S.G.
Ch. 7. Significantly, Application Note 5 to U.S.S.G. 7B1.3
instructs that
it is the Commission's recommendation
that any sentence of imprisonment for a
criminal offense that is imposed after
revocation of probation or supervised
released be run consecutively to any term
___ ____
of imprisonment imposed upon revocation.
__ ____________
U.S.S.G. 7B1.3, comment. (n.5) (emphasis added). If
anything, Note 5 suggests that the course followed by the
district court, imposing a wholly consecutive sentence, was
correct. See Torrez, 40 F.3d at 87-88 (Section 7B1.3
___ ______
suggests that -- as in this case -- notwithstanding Note 3 to
5G1.3, imposition of wholly consecutive sentence would be
appropriate in case involving a probation revocation).
Furthermore, Application Note 3 fails to explain
whether, in a situation like the present, a court should
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consider the underlying state drug conviction in calculating
the equivalent federal sentence. In his argument, Hunter
ignores the underlying drug possession and contends that Note
3 requires the court to combine only the guideline sentence
for federal probation revocation with the guideline sentence
for the instant bank robbery charges. Such an approach,
however, fails to account for the fact that, in sentencing
Hunter to the unexpired portion of his suspended ten-year
drug sentence, the state court arguably aimed to punish
Hunter for both the probation violation and the underlying
cocaine possession. Cf. United States v. Gullickson, 981
___ ______________ __________
F.2d 344, 346-47 (8th Cir. 1992) (instructing sentencing
court to calculate appropriate incremental punishment by
estimating equivalent federal sentence for state forgery and
other offenses and combining that with the sentence for
instant federal offense where defendant, at the time of
sentencing, was serving state prison term following
revocation of probation imposed for state forgery conviction;
court notably did not instruct sentencing court to estimate
federal penalty for probation violation).
Finally, we note that Hunter's case is unlike the
usual situation governed by 5G1.3(c), in which the offenses
supporting the separate sentences arise from related conduct.
See Gondek, 65 F.3d at 3. In such cases (e.g., a state drug
___ ______ ____
charge and a related federal firearms charge), sentencing
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according to the grouping rules as suggested by Application
Note 3 makes much sense. In other words, when the federal
sentence arises from conduct or acts directly related to that
on which the state sentence is based, application of the
guidelines' grouping rules accords with fairness principles
inherent in the guidelines by "limit[ing] the significance of
the formal charging decision and . . . prevent[ing] multiple
punishment for substantially identical offense conduct."
U.S.S.G. Ch.3 Pt.D, intro. comment. Hunter's situation,
however, is different. The federal bank robbery convictions
arise from conduct completely unrelated to the cocaine
possession that lies at the heart of the state sentence. In
cases like Hunter's, where the acts or conduct giving rise to
the different sentences are not closely related, the
rationale of the guidelines' grouping rules does not apply.
Indeed, Hunter's situation is more "closely akin to the case
of the defendant who commits a new offense while still in
prison, the very situation in which [U.S.S.G. 5G1.3(a)]
instructs that the new sentence is to be served
consecutively." Gondek, 65 F.3d at 3.
______
Accordingly, we do not believe that the method for
calculating a "reasonable incremental punishment" prescribed
in Application Note 3 clearly addresses Hunter's situation.
In short, it would not have been "practicable" in light of
the inconsistencies outlined above for the district court to
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have attempted to follow Note 3, and, thus, it did not err in
failing to do so. Moreover, we do not think the court
otherwise abused its discretion in sentencing Hunter to a
wholly consecutive federal sentence. The court carefully
considered the circumstances of this case and determined that
such a sentence was necessary in order to insure a reasonable
incremental punishment for the federal bank robbery charges.
Furthermore, we believe the Sentencing Commission's
adoption in 1993 of Application Note 4 to U.S.S.G. 5G1.3
implicitly supports this conclusion. In cases where a
defendant has committed a federal offense while on probation,
Note 4 expressly limits a district court's discretion in
determining a reasonable incremental punishment by providing
that the court must order the entire federal sentence to run
consecutively to any sentence imposed upon revocation of
probation. See U.S.S.G. 5G1.3, comment. (n.4).14
___
____________________
14. In order to avoid any ex post facto concerns, the
__ ____ _____
district court expressly declined to rely on Application Note
4, enacted November 1, 1993 (prior to sentencing but after
the underlying criminal acts), which provides:
4. If the defendant was on federal or
state probation, parole, or supervised
release at the time of the instant
offense, and has had such probation,
parole, or supervised release revoked,
the sentence for the instant offense
should be imposed to be served
consecutively to the term imposed for the
violation of probation, parole, or
supervised release in order to provide an
incremental penalty for the violation of
probation, parole, or supervised release
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Significantly, the Sentencing Commission added Note 4 to
5G1.3 without altering in any way the language of Application
Note 3. Thus, in doing so, the Commission implicitly
recognized that, prior to the adoption of Note 4, a
sentencing court at the very least had the discretion in
cases like Hunter's (e.g., probation revocation cases) to
____
ignore the methodology set forth in Note 3 and order a wholly
consecutive sentence.
3. McCarthy's Sentencing Issue
_______________________________
Finally, McCarthy challenges the district court's
use of his seven prior state attempted-murder convictions as
a single predicate offense in determining whether he was
subject to sentencing as an armed career criminal under 18
U.S.C. 924(e). McCarthy contends that the district court
should not have considered the attempted-murder convictions
because they arose out of the same incident that gave rise to
____________________
(in accord with the policy expressed in
7B1.3 and 7B1.4).
U.S.S.G. 5G1.3, comment. (n.4). We also find it
unnecessary to rely on Note 4, and, thus, do not consider
whether it poses any significant ex post facto concerns.
__ ____ _____
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a "non-qualifying" bank larceny conviction.15 We do not
agree.
As the government explains, the sentencing court
did not count the larceny conviction as a separate predicate
offense, but instead counted only the state attempted-murder
convictions (and the court counted those only as a single
predicate offense). Thus, the district court did not
consider an arguably non-qualifying predicate offense (i.e.,
the bank larceny conviction) in determining whether it should
sentence McCarthy as an armed career criminal. McCarthy's
implicit contention that, whenever the same conduct gives
rise to both qualifying and non-qualifying convictions, a
sentencing court may consider neither in determining whether
defendant qualifies as an armed career criminal is completely
without logic or support. Accordingly, McCarthy's complaint
lacks merit.
III.
III.
____
Conclusion
Conclusion
__________
For the foregoing reasons, we affirm.
affirm
____________________
15. 18 U.S.C. 924(e) provides, inter alia, that an
_____ ____
individual shall be sentenced as an armed career criminal if
he or she has violated 18 U.S.C. 922(g) (unlawful
possession of a firearm) and has three previous convictions
by any court for a violent felony, serious drug offense or
both, committed on occasions different from one another. In
this case, the district court held that McCarthy's federal
bank larceny conviction did not qualify as a violent felony.
We have no need to review that decision.
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