United States Court of Appeals For the First Circuit
No. 23-1939
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN ELLIOTT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya B. McCafferty, U.S. District Judge]
Before
Kayatta, Selya, and Gelpí, Circuit Judges.
Michael B. Skinner and Law Office of Michael B. Skinner on brief for appellant. Jane E. Young, United States Attorney, and Aaron Gingrande, Assistant United States Attorney, on brief for appellee.
August 27, 2024 SELYA, Circuit Judge. Defendant-appellant Brian Elliott
challenges his within-the-range incarcerative sentence of 120
months, which followed his guilty plea to drug and firearm
violations. See Fed. R. Crim. P. 11(c)(1)(A)-(B). For the reasons
elucidated below, we conclude that the district court did not abuse
its discretion in applying a six-level enhancement for assaulting
a police officer during either the offense of conviction or the
offender's flight therefrom. See USSG §3A1.2(c)(1). We further
conclude that the court appropriately weighed the sentencing
factors made relevant by 18 U.S.C. § 3553(a). Given these
conclusions, we affirm the challenged sentence.
I
We briefly rehearse the relevant facts and travel of the
case. "Where, as here, a sentencing appeal follows a guilty plea,
we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Rivera-Gerena, __ F.4th __, __ (1st Cir. 2024) [No. 23-1066,
slip op. at 2] (quoting United States v. Vargas, 560 F.3d 45, 47
(1st Cir. 2009)).
A
On an evening in May of 2021, a police officer in
Goffstown, New Hampshire, observed a vehicle being driven on a
public highway without the use of headlights. The officer
- 2 - activated the emergency lights on his patrol car and attempted to
compel the offending vehicle to pull over to the side of the road.
The vehicle did not oblige but, rather, maintained its speed.
After the officer activated the patrol car's siren, the
vehicle's speed increased, and it crossed the center line,
traveling on the wrong side of the road. The officer continued
the chase, but he could not maintain a close tail due to the
vehicle's erratic path. In a subsequent police interview, the
appellant admitted that he was the driver of the errant vehicle
that the officer was pursuing.
The chase eventually proved fruitful, and the pursued
vehicle came to a halt. When the officer caught up and parked
behind the stopped vehicle, the appellant exited the driver's side
door and started to flee. The officer chased the appellant on
foot through a mercantile parking lot and up a chain link fence.
From his perch on the fence, the officer warned the appellant that
— if he did not stand down — the officer would deploy his taser.
The officer testified that the appellant — in response to this
warning — aimed a .45 caliber semiautomatic handgun at him and
exclaimed, "I have a gun." According to the officer, this
exclamation was followed by the appellant's admonition that "I'm
gonna shoot," "I'm gonna shoot you," or something to that effect.
The officer scrambled to take cover, while the appellant
beat a hasty retreat. Other officers arrived shortly thereafter,
- 3 - but they could not locate the appellant anywhere in the area.
Withal, the officer who had initiated the pursuit came across a
backpack that he had seen the appellant wearing during the chase.
The backpack contained over 100 rounds of .45 caliber ammunition,
several rounds of twelve-gauge ammunition, and approximately 120
grams of fentanyl. A local business owner later informed the
authorities that he had discovered a revolver near the scene.
The appellant's freedom was short-lived: two days
later, the authorities located him at a hotel in Manchester, New
Hampshire. They arrested the appellant and recovered a .45 caliber
pistol, one round of .45 caliber ammunition, and a small amount of
fentanyl. In a subsequent interview, the appellant admitted to
possessing both the revolver that had been found near the fence
and the pistol recovered from the hotel room. And even though the
appellant contests to possessing the fentanyl in the backpack, he
asserted that he had "found" it.
B
In due course, a federal grand jury sitting in the
District of New Hampshire returned an indictment against the
appellant, which embodied four counts: count 1 charged him with
possession with intent to distribute at least forty grams of
fentanyl, see 21 U.S.C. § 841(b)(1)(B); counts 2 and 4 charged him
with possession of firearms and ammunition after having been
convicted of a felony, see 18 U.S.C. § 922(g)(1); and count 3
- 4 - charged him with possession of a firearm in furtherance of a drug
trafficking crime, see id. § 924(c)(1)(A). After some preliminary
skirmishing, the appellant agreed to plead guilty to counts 1, 2,
and 4 in exchange, inter alia, for the government's agreement to
abandon count 3 and to recommend a sentence within the guideline
sentencing range. See Fed. R. Crim. P. 11(c)(1)(A)-(B). At the
change-of-plea hearing, the district court accepted the plea
agreement.
The PSI Report recommended a base offense level of
twenty-four based on the drug quantity (forty-plus grams of
fentanyl) stipulated in the plea agreement. See USSG §2D1.1(c)(8).
The parties, however, remained at odds over the applicability vel
non of a six-level enhancement for assaulting a law enforcement
officer during the offense of conviction or flight therefrom. See
id. §3A1.2(c)(1).
At the disposition hearing, the court heard testimony
from the pursuing officer who described the encounter in which the
appellant allegedly pointed a firearm at him. The court found
this testimony credible and applied the enhancement. With other
adjustments, not controverted here, the court calculated a total
offense level of twenty-nine. Combined with the appellant's
criminal history category (III), this total offense level yielded
a guideline sentencing range of 108 to 135 months.
- 5 - In considering the statutory sentencing factors, see 18
U.S.C. § 3553(a), the court recognized several mitigating items,
such as the appellant's childhood struggles and his untreated drug
addiction. It proceeded to weigh these items against the
seriousness of the offense conduct and the appellant's extensive
criminal record (which included several probation violations).
The court emphasized the extreme risks posed by both fentanyl and
firearms. It added that the appellant's decision to point a gun
at a police officer was especially troubling. With these
considerations in mind, the court concluded that a 120-month
incarcerative term "adequately reflect[ed] the seriousness of this
offense, promot[ed] respect for the law, provid[ed] just
punishment, afford[ed] adequate deterrence, general and specific,
and provid[ed] protection to the public for further crimes" that
the appellant might commit. The court proceeded to impose
concurrent 120-month sentences on the counts of conviction —
sentences that were in the bottom half of the guideline sentencing
range.
This timely appeal followed.
II
In this venue, the appellant presses two assignments of
error. First, he asserts that the district court erred by applying
the enhancement for assaulting a police officer during the
commission of an offense or flight therefrom. See USSG
- 6 - §3A1.2(c)(1). Second, he asserts that the district court imposed
a substantively unreasonable sentence. Neither assertion is
persuasive.
When confronted with a defendant's appeal of his
sentence, "[w]e first determine whether the sentence imposed is
procedurally reasonable (that is, free from reversible error in its
procedural aspects) and then determine whether it is substantively
reasonable." United States v. Demers, 842 F.3d 8, 12 (1st Cir.
2016). Within this bifurcated structure, "we review the
[sentencing] court's interpretation and application of the
sentencing guidelines de novo and assay any subsidiary findings of
fact for clear error." United States v. Walker, 665 F.3d 212, 232
(1st Cir. 2011). The clear error standard is demanding. See United
States v. Matos, 328 F.3d 34, 39-40 (1st Cir. 2003). Under its
auspices, we will not "disturb either findings of fact or
conclusions drawn therefrom unless the whole of the record compels
a strong, unyielding belief that a mistake has been made." Id. at
40.
We start with the appellant's claim of procedural error.
For a sentence to pass procedural muster, the sentencing court must
have correctly calculated the guideline sentencing range. See
Demers, 842 F.3d at 12. Here, the appellant contends that his
- 7 - guideline sentencing range was impermissibly inflated because the
court erroneously applied the section 3A1.2(c)(1) enhancement for
assaulting a police officer during the offense or flight therefrom.
In particular, he challenges the officer's testimony that he (the
appellant) drew and pointed his firearm and, thus, assaulted the
officer while fleeing. As we explain below, this challenge lacks
force.
Of course, the government must prove the applicability
of a sentencing enhancement by a preponderance of the evidence.
See Walker, 665 F.3d at 232. For the section 3A1.2(c)(1)
enhancement to apply, the defendant must have known that his actions
would likely cause an officer to fear that he would face the
prospect of substantial bodily injury. See United States v. Lee,
199 F.3d 16, 17-19 (1st Cir. 1999). Where, as here, the sentencing
court relied on witness testimony to invoke the enhancement, our
review of the court's appraisal of that testimony is for clear
error. See Walker, 665 F.3d at 232. Without "objective evidence
that contradicts a witness's story or a situation where the story
itself is so internally inconsistent or implausible that no
reasonable factfinder would credit it, . . . 'the ball game is
virtually over' once a district court determines that a key witness
is credible." United States v. Guzmán-Batista, 783 F.3d 930, 937
(1st Cir. 2015) (quoting Rivera-Gómez v. de Castro, 900 F.2d 1, 4
(1st Cir. 1990)).
- 8 - So it is in this case. The sentencing court supportably
determined that the officer's testimony recounting the appellant's
actions while fleeing was credible. The appellant neither presents
countervailing evidence nor calls to our attention any internal
inconsistency or implausibility that suffices to undermine the
challenged testimony.
To fill this void, the appellant offers several reasons
as to why we should discredit the officer's testimony and set aside
the district court's assessment. For one thing, the appellant
points out that the pursuing officer did not claim to see him
carrying a firearm during the chase. For another thing, the
appellant points out that the security footage did not capture the
alleged assault. Moreover, the officer failed to turn on his body
camera until after the alleged assault. Then, too, the officer
claimed to have informed his supervisor and his dispatcher about
the assault, but neither of those officers reported this detail.
Finally, the police department to which the officer belonged
sanctioned him for dishonesty in a 2018 report unrelated to the
offenses at issue here.
With these facts as a predicate, the appellant suggests
that no evidence directly affirms the pursuing officer's account
of the assault. And in addition, the circumstances suggest a
mistaken or fabricated account of the events. Consequently — the
- 9 - appellant insists — the sentencing court could not have rested its
decision to apply the enhancement on such a porous foundation.
The appellant's challenge is unconvincing. That the
officer did not see a firearm during the chase until the appellant
pointed it at him does not render it unlikely that the appellant
was carrying one. So, too, the absence of security footage
recording the assault does not, in and of itself, disprove the
officer's account. At most, it amounts to the absence of
corroborating evidence.
In any event, the security footage was not simply a blank
slate. It did show the appellant leaving his vehicle to continue
his flight on foot — and there appeared to be a firearm in his
hand. What is more, officers recovered firearms and ammunition
near the route of the chase and in the appellant's hotel room (when
they arrested him). These facts strongly suggest that the appellant
possessed a firearm similar to the one that the pursuing officer
described.
Nor does the officer's failure to activate his body
camera carry sufficient weight to bolster the appellant's position.
After all, that omission is subject to competing inferences. On
the one hand, it may have been an intentional act designed to cover
up ensuing misconduct; on the other hand, it may have been an
understandable oversight in the heat of the moment. There was no
clear error in the district court's decision to draw the latter
- 10 - inference. See Valentín v. Hosp. Bella Vista, 254 F.3d 358, 367
(1st Cir. 2001) ("[T]he case law makes clear that a district court's
choice between two plausible, but conflicting, interpretations of
a factual scenario cannot amount to clear error."); see also Guzmán-
Batista, 783 F.3d at 937-38 (explaining that, when defendant
presented "compelling evidence" of his version of events that
"create[d] two possible alternative versions of the events,"
sentencing court's choice between those alternatives could not have
been clearly erroneous). Much the same can be said for the absence
of any mention of the assault in some of the police reports.
The short of it is that some of the circumstances
surrounding the alleged assault may be thought to point in different
directions. But because these circumstances leave room for
differential factfinding, it was the sentencing court's prerogative
to draw such reasonable inferences as it deemed appropriate from
the facts.
To be sure, the fact that the officer had lied in the
past may raise credibility concerns. But such concerns are
predominantly the province of the sentencing court. See United
States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992) ("In the
sentencing phase, credibility determinations lie within the domain
of the district court."). As such, they are largely beyond our
purview on appeal. See Guzmán-Batista, 783 F.3d at 937 ("[A]
challenge based on a district court's credibility determination
- 11 - 'can virtually never be clear error.'" (quoting Anderson v. City
of Bessemer, 470 U.S. 564, 575 (1985))).
To say more about this claim of error would be
supererogatory. The appellant has identified certain weaknesses
in the government's evidentiary presentation, but in the last
analysis, he simply does not provide any compelling basis in law
or fact such as would justify disturbing the district court's
application of the challenged enhancement. Clear error is clearly
absent.
C
This leaves the appellant's claim that his sentence was
substantively unreasonable. In support, he argues that the
sentencing court ignored several mitigating factors that counseled
in favor of a briefer term of incarceration. Our review of this
claim of error is for abuse of discretion. See Gall v. United
States, 552 U.S. 38, 56 (2007).
A sentence is substantively reasonable if it "reflects
'a plausible sentencing rationale and a defensible result.'"
United States v. Soto-Soto, 855 F.3d 445, 450 (1st Cir. 2017)
(quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).
There is not one reasonable sentence in any given case but, rather,
a wide universe of reasonable sentences. See United States v.
Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017). A sentence
that falls within the guideline sentencing range for a given offense
- 12 - is rarely outside the universe of reasonable sentences for that
offense. See United States v. Carrasquillo-Vilches, 33 F.4th 36,
45 (1st Cir. 2022) ("[A] sentence — like this one — that falls
'within a properly calculated guideline sentencing range is
entitled to significant weight.'" (quoting United States v.
Angiolillo, 864 F.3d 30, 35 (1st Cir. 2017))). It follows that a
defendant who challenges a within-the-range sentence must bear a
heavy burden. See United States v. Pelletier, 469 F.3d 194, 204
(1st Cir. 2006). In the case at hand, the appellant has failed to
shoulder that burden.
To begin, the district court explained that it had
considered many of the mitigating factors to which the appellant
now adverts. For instance, the court acknowledged the appellant's
childhood struggles and his untreated drug addiction.
To be sure, the sentencing court did not address each and
every mitigating factor — but it was not obliged to do so. See
Rivera-Gerena, __ F.4th at __ [No. 23-1066, slip op. at 9-10].
When a sentencing court imposes a within-the-range sentence and the
record shows that the court listened to the defendant's arguments
and supporting evidence, a reviewing court may infer that "[t]he
judge then simply found the[] circumstances insufficient to warrant
a sentence lower than the Guidelines range." Rita v. United States,
551 U.S. 338, 358 (2007); see Rivera-Gerena, __ F.4th at __ [No.
23-1066, slip op. at 11]. This is such a case: the mere fact
- 13 - "[t]hat the sentencing court chose not to attach to certain of the
mitigating factors the significance that the appellant thinks they
deserved does not make the sentence unreasonable." United States
v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).
Here, moreover, the court identified two specific
considerations that provided ample support for the sentence
imposed. First, it emphasized the danger that the appellant had
created for himself and the community by distributing fentanyl and
possessing firearms with a large supply of ammunition. The
lethality of this conduct hardly can be doubted.
We hasten to add that these dangers were not merely
theoretical. As the district court observed, one of these dangers
became a stark reality when the appellant decided to pull a gun on
the pursuing officer. In the court's view, reasonably held, this
conduct "was dangerous[,] could have gotten [the appellant]
killed[,] and certainly threatened a police officer."
Second, the court emphasized the "concerning and
persistent" nature of the appellant's "rather lengthy criminal
history and history of probation violations." This was a reasonable
viewpoint, and we give it weight. See Rivera-Gerena, __ F.4th at
__ [No. 23-1066, slip op. at 10].
To sum up, we conclude that the stated reasons
constituted sufficient justification for the sentence imposed
because they reflect the seriousness of the offense and the need
- 14 - to afford adequate deterrence, to protect the public from further
crimes, and to promote respect for the law. See 18 U.S.C.
§ 3553(a)(2)(A)-(C). Put another way, the district court's
sentencing rationale was plausible. The appellant has failed to
show how the court abused its discretion by weighing the aggravating
circumstances heavily while correspondingly discounting the
mitigating evidence. See United States v. Madera-Ortiz, 637 F.3d
26, 30 (1st Cir. 2011) (holding that defendant who challenges
within-range sentence needs to "adduce fairly powerful mitigating
reasons and persuade us that the district judge was unreasonable
in balancing pros and cons despite the latitude implicit in saying
that a sentence must be 'reasonable'" (quoting United States v.
Navedo-Concepción, 450 F.3d 54, 59 (1st Cir. 2006))). To cinch the
matter, the end result of the sentencing process — a sentence in
the bottom half of the guideline sentencing range — was well within
the wide universe of reasonable sentences and, thus, was readily
defensible. Viewed against this backdrop, the appellant's claim
of error founders.
III
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
- 15 -