United States v. Grant

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 96-1697



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                JONATHAN A. GRANT, II,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                          Boudin and Lynch, Circuit Judges.
                                            ______________



                                _____________________



               Miriam Conrad, Federal Defender Office, for appellant.
               _____________

               Sheila  W. Sawyer,  Assistant United  States Attorney,  with
               _________________

          whom  Donald K. Stern, United  States Attorney, was  on brief for
                _______________

          appellee.


____________________



                                     May 30, 1997

                                 ____________________



TORRUELLA,  Chief   Judge.    On  February   28,  1996,
                    TORRUELLA,  Chief   Judge.
                                _____________



          Defendant-Appellant   Jonathan   Grant   ("Grant")   entered   an



          unconditional plea of guilty to  four counts of being a felon  in



          possession of eleven different firearms in violation of 18 U.S.C.



            922(g).  Each count stated  a different location or a different



          time of possession of  the relevant firearms.  Count  One charged



          Grant with possessing  three firearms  "[o]n or  about April  22,



          1995, at Fairhaven, . . .  Massachusetts."  Count Two charged him



          with possessing  two firearms "[o]n  or about April 26,  1995, at



          Fairhaven,  . . . Massachusetts."   Count Three  charged him with



          possessing  two  firearms  "[o]n  or about  April  26,  1995,  at



          Westport,  . .  . Massachusetts."   Count  Four charged  him with



          possessing four firearms "[o]n or about May 1, 1995, at Westport,



          . . . Massachusetts."  



                    At the  May 31, 1996, sentencing  hearing, the district



          court determined that Grant was an  Armed Career Criminal ("ACC")



          under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.   924(e),



          and accordingly imposed a minimum mandatory sentence of 15 years.



          In the  event that this court  determined on appeal that  the ACC



          finding was erroneous, the  district court imposed an alternative



          sentence of a total of fifteen  years, ten years for Counts  One,



          Two, and Three,  to run  concurrently, and five  years for  Count



          Four, to run  consecutively.   As to the  district court's  first



          ground, Grant  contends that the district  court erroneously held



          that Grant's  earlier  Massachusetts conviction  for  carrying  a



          dangerous  weapon constituted  a violent  felony under  the ACCA.


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This allegedly  erroneous finding  provided the  third conviction



          necessary to deem  Grant an  ACC.  Grant  next contends that  the



          district court  erred, on  its alternative grounds,  in enhancing



          his offense level  four levels under  U.S.S.G.   2K2.1(b)(5)  and



          abused  its discretion when it  denied his request  to conduct an



          evidentiary hearing  on  disputed  facts  in  the  Pre-Sentencing



          Report ("PSR").   Finally, Grant argues  that the district  court



          violated  his Double  Jeopardy rights  by imposing  a consecutive



          sentence on Count Four.  Because we find that Grant's  second and



          third  claims  lack  merit,  and therefore  affirm  the  district



          court's  alternative  sentence, we  need  not  reach Grant's  ACC



          argument.



                                      BACKGROUND
                                      BACKGROUND



                    In  presenting the  facts, we  consult  the uncontested



          portions  of  the  PSR,   as  well  as  the  sentencing   hearing



          transcript.  United  States v. Lagasse, 87 F.3d 18,  20 (1st Cir.
                       ______________    _______



          1996).



                    Michael Rivera ("Rivera") agreed to buy guns for Grant,



          in return for  $50 for each gun purchased.   Rivera purchased, on



          Grant's  behalf,  a total  of  thirteen  guns from  licensed  gun



          dealers  in Massachusetts.  Rivera turned  over all thirteen guns



          to Grant, who paid over $6,400 in  cash for the guns.  Grant paid



          Rivera $650 in cash for making the purchases.



                    A federal Alcohol, Tobacco, and Firearms ("ATF") agent,



          who  had received  a  tip about  the  purchases from  a  licensed



          dealer, interviewed Rivera  on May  11, 1995.   Rivera agreed  to


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cooperate with federal  agents and, on  June 2, 1995,  introduced



          Grant to an undercover agent.  Grant indicated in a tape recorded



          conversation  with Rivera  that he  was interested  in purchasing



          five fully  automatic  Tec-9 firearms  with  attached  silencers,



          bulletproof  vests, and a  silencer for  a .40-caliber  Smith and



          Wesson pistol that Rivera had purchased for him earlier.  As part



          of  the  sting  operation,  Rivera  made  arrangements  with  the



          government agent to purchase  these items for Grant.   When Grant



          was arrested by ATF agents at  the sham sale, he was carrying the



          .40-caliber firearm and $3,000 in cash.



                                      DISCUSSION
                                      DISCUSSION



          I.        Sentence enhancement
          I.        Sentence enhancement



                    Under U.S.S.G.   2K2.1(b)(5),  the district court is to



          impose a four-level enhancement



                    [i]f  the  defendant  used or  possessed  any

                    firearm  or  ammunition  in  connection  with

                    another  felony  offense;  or   possessed  or

                    transferred  any  firearm or  ammunition with

                    knowledge, intent, or reason to  believe that

                    it would be used  or possessed in  connection

                    with another felony.



          The  district court  found that  this enhancement  was warranted.



          Grant contends that the district court abused its discretion when



          it  failed to  hold  an evidentiary  hearing regarding  contested



          portions of the PSR, and that the Section 2K2.1(b)(5) enhancement



          was unsupported by the remaining uncontested evidence.



                    A.   Failure to hold an evidentiary hearing
                    A.   Failure to hold an evidentiary hearing


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We  review  the district  court's  failure  to hold  an



          evidentiary hearing  for abuse of  discretion.  United  States v.
                                                          ______________



          Jim nez Mart nez, 83 F.3d 488, 498 (1st Cir. 1996).
          ________________



                    Grant contested some of the facts contained in the PSR,



          specifically  facts  derived  from  an  ATF  agent's  grand  jury



          testimony regarding statements allegedly  made by Rivera but that



          were not contained  in Rivera's  grand jury testimony  or in  his



          written statement to the  ATF.  These statements assert  that the



          purpose of  Grant's firearms  purchases was  to "arm  persons who



          sold drugs for defendant in the  greater New Bedford area."   PSR



          at 25.   In the  proceedings below, Grant  sought an  evidentiary



          hearing into  the factual basis  for the agent's  statements that



          were not supported by Rivera's own testimony.  Grant proffered to



          the  probation  department and  the  sentencing  court copies  of



          Rivera's  written  statement and  cited  to  Rivera's grand  jury



          testimony;1  neither  source,  Grant  argued,  indicates  Grant's



          purpose in  purchasing  the  weapons.    Grant  argued  that  the



                              
          ____________________



          1  Part of Rivera's testimony consisted of the following:



                    Q.   Did he  tell you what he  intended to do

                    with the guns?



                    A.   Yes.  I think he was -- at one point, he

                    mentioned he was  going to get rid of them to

                    his family members and to some friends.



                    Q.   Were  these  individuals who  sold drugs

                    with and for Grant?



                    A.   Yes,  the ones  that I  know of  that he

                    mentioned.



          Grand Jury Testimony of Michael Rivera at 9.



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"inconsistency"  between the agent's testimony regarding Rivera's



          statements and Rivera's own statements warranted resolution in an



          evidentiary hearing.



                    Grant  further  contends  on  appeal  that neither  the



          statements of Rivera nor those of the ATF agent were sufficiently



          reliable  for the  district court  to credit them  in determining



          Grant's  knowledge  or intent  regarding  the future  use  of the



          firearms.   Grant  asserts  that neither  Rivera's statement  nor



          Rivera's  testimony  displayed  sufficient knowledge  of  Grant's



          state of mind to make the statements reliable for the purposes of



          this enhancement.



                    He further asserts that  the ATF agent's statements are



          unreliable because they are nothing more than claims regarding an



          informant's  uncorroborated statements.   Grant  claims  that the



          rationale of  this court's decision  in United States  v. Jim nez
                                                  _____________     _______



          Mart nez applies to  his case.  See Jim nez Mart nez,  83 F.3d at
          ________                        ___ ________________



          494-95 (finding  reliability concerns after the  defendant made a



          proffer  contesting the reliability  of an informant's statements



          regarding the  defendant's statements because  the defendant  and



          the informant did  not share  a common language).   Grant  argues



          that,  just as  the  defendant's uncontested  proffer in  Jim nez
                                                                    _______



          Mart nez sufficiently called into question the reliability of the
          ________



          informant's  statements,   the   ATF  agent's   statements   were



          sufficiently  called  into question  by  Rivera's  statements and



          testimony.    The argument  fails.   There is  no "inconsistency"



          between the ATF agent's statements and Rivera's written statement


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and grand  jury testimony -- the ATF  agent's testimony regarding



          statements  made by Rivera in the context of the investigation is



          consistent  with the testimony provided by  Rivera.  Moreover, at



          the  end of his grand  jury testimony, Rivera  stated that he was



          engaged  in ongoing  discussions  with the  ATF that  encompassed



          subjects beyond those to which he had testified.



                    More fundamentally, Grant made no proffer regarding any



          possible,  let alone relevant or material, evidence that would be



          brought forward at an  evidentiary hearing.  Without a  reason to



          believe  that   any  benefit  would  derive   from  convening  an



          evidentiary hearing, the district court  surely did not abuse its



          discretion in refusing Grant's request.



                    B.   Failure to resolve factual disputes
                    B.   Failure to resolve factual disputes



                    Prior to sentencing, Grant objected to various facts in



          the PSR.  Grant  argues that the district court  failed to comply



          with Federal Rule of  Criminal Procedure 32(c)(1), which requires



          a sentencing court that is presented with a factual dispute to



                    make either a finding  on the allegation or a

                    determination  that  no finding  is necessary

                    because the controverted  matter will not  be

                    taken into  account in,  or will  not affect,

                    sentencing.    A  written  record   of  these

                    findings and determinations must  be appended

                    to any  copy of  the presentence report  made

                    available to the Bureau of Prisons.



          Fed. R. Crim.  P. 32(c)(1).  We have held  that the strictures of



          Rule  32(c)(1)  bind the  sentencing  court to  compliance.   See
                                                                        ___



          United  States v.  Bruckman,  874 F.2d  57,  64 (1st  Cir.  1989)
          ______________     ________



          (finding  a violation of Rule 32[(c)(1)]  when the district court



          fails  to make or append such findings); United States v. Hanono-
                                                   _____________    _______



                                         -7-



Surujun, 914 F.2d 15, 18 (1st Cir. 1990) (collecting cases).  The
          _______



          purposes   of  this  rule  are  two-fold:    (1)  to  protect  "a



          defendant's  due process rights to  be sentenced on  the basis of



          accurate  information"; and (2) to provide "a clear record of the



          disposition  of controverted  facts  in the  presentence  report,



          which, in turn, reduces  the likelihood that subsequent appellate



          or administrative decisions  will be  made based  on improper  or



          incomplete information."  Bruckman, 874 F.2d at 63-64.
                                    ________



                    With  regard  to  the  first  concern,  we  have  held,



          however,  that "a court may make implicit findings with regard to



          sentencing matters."   United  States v. Ovalle-M rquez,  36 F.3d
                                 ______________    ______________



          212, 227 (1st Cir. 1994); accord United States v. Cruz, 981  F.2d
                                    ______ _____________    ____



          613, 619 (1st Cir.  1992) ("A court may make implicit findings on



          disputed   factual  questions   by  accepting   the  government's



          recommendations at the  sentencing hearing." (internal quotations



          omitted)).     During the sentencing hearing, the court gave each



          party the opportunity to discuss the basis for relying on the ATF



          agent's  testimony  regarding  what  Rivera  had  told  him  when



          Rivera's  own words  did not  include the  same statements.   The



          contested  statements concerned Grant's alleged knowledge that he



          was  giving the  firearms to  individuals who  would use  them in



          connection with a felony.   After both parties were heard  on the



          statements of the ATF agent and the informant, the district court



          ruled that Grant "had reason to believe that the weapons would be



          used  or possessed  in connection  with another  felony offense."



          Transcript of Sentencing Hearing  at 26.  The court  indicated in


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writing,  as part of the judgment, that it "adopt[ed] the factual



          findings  . . .  in the presentence  report."  We  find this case



          virtually  indistinguishable  from United  States v.  Savoie, 985
                                             ______________     ______



          F.2d  612, 621 (1st Cir.  1993), which found,  on similar, if not



          identical, facts, that the  sentencing court had implicitly ruled



          that the contested statements  were sufficiently reliable.  Under



          Savoie, the district court's  ruling and written adoption  of the
          ______



          PSR  amounts "necessarily [to  a] finding against  [Grant] on all



          disputed  matters of  fact," id.,  that are  the subject  of this
                                       ___



          appeal.



                    Moreover,  although Grant objected  to certain facts in



          the PSR that stated he had the requisite knowledge, Grant did not



          provide  the sentencing court with  evidence to rebut the factual



          assertions that he was in  charge of a drug operation in  the New



          Bedford  area and  that he  intended to  provide the  firearms to



          friends and family members  in furtherance of their work  in that



          operation.  Consequently,  the court was justified in  relying on



          the contested facts.  See United States v. Mir, 919 F.2d 940, 943
                                ___ _____________    ___



          (5th Cir. 1990) (explaining  that, although defendant objected to



          facts  contained in  the  PSR, his  failure  to present  rebuttal



          evidence  to refute those facts  left the district  court free to



          adopt the facts  contained in the  PSR without further  inquiry),



          cited in  United States  v. Morillo, 8  F.3d 864,  873 (1st  Cir.
          ________  _____________     _______



          1993); United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
                 _____________    ____



                    Having  concluded  that the  court  implicitly resolved



          these  factual disputes, we turn to the second concern implicated


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by Rule 32(c)(1), namely that a court's determination be appended



          to  the PSR.  Although the district court implicitly resolved the



          factual  disputes,  it  failed  to comply  with  Rule  32(c)(1)'s



          mandate  that the  sentencing court  append to  the PSR  either a



          determination regarding  the contested facts or  a statement that



          the contested facts were not considered in reaching the sentence.



          Consequently,  we remand to the  sentencing court to  allow it to



          append  its determination.   Cruz,  981  F.2d at  619 (explaining
                                       ____



          that,  where the  sentencing  court merely  fails  to append  its



          findings,  remanding without resentencing is appropriate); United
                                                                     ______



          States  v. Santana-Camacho,  931 F.2d  966, 969  (1st Cir.  1991)
          ______     _______________



          (finding "technical"  failure to append  findings to PSR  did not



          entitle appellant to resentencing).



                    C.   Support for the enhancement
                    C.   Support for the enhancement



                    We review the sentencing  court's interpretation of the



          sentencing guidelines de novo  and its factual conclusions, which
                                _______



          must be supported by  a preponderance of the evidence,  for clear



          error.   United States  v. Ruiz,  105 F.3d 1492,  1504 (1st  Cir.
                   _____________     ____



          1997).   Having concluded that the district court was entitled to



          rely  on all  of the  facts provided  in the  PSR, we  review its



          imposition  of   the  four-level  enhancement  under  U.S.S.G.   



          2K2.1(b)(5) in light of the facts contained in the PSR.



                    The findings  on which the sentencing  court relied for



          the  four-level  enhancement   were  supported  by  the   factual



          statements in the  PSR and  amply justify the  enhancement.   See
                                                                        ___



          United  States v.  Van, 87  F.3d 1,  3 (1st  Cir. 1996)  ("In the
          ______________     ___


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absence  of  legal error,  the  district court's  ruling  will be



          sustained  so long  as the  information upon  which it  relied is



          sufficient  to support  the  findings under  a clearly  erroneous



          standard.").  According to  the PSR, Grant was a  drug dealer who



          used  friends  and  family  members  to  distribute  drugs.    He



          indicated to  his "gopher" in the  firearms transactions, Rivera,



          that he  needed the firearms to protect him and his associates in



          connection  with the drug  operation.  These  facts alone support



          the   sentencing  court's   finding  that   Grant  possessed   or



          transferred the  firearms "with  knowledge, intent, or  reason to



          believe that [they] would be used or possessed in connection with



          another felony."  U.S.S.G.   2K2.1(b)(5).  We find no error here.



          II.       Double Jeopardy challenge
          II.       Double Jeopardy challenge



                    The Double  Jeopardy Clause  states:  "[N]or  shall any



          person for the  same offense be twice put in  jeopardy of life or



          limb."  U.S. Const. amend. V.  In the context  of sentencing, the



          Double  Jeopardy Clause  bars  a sentencing  court from  imposing



          multiple  punishments for  the  same offense.    See Rutledge  v.
                                                           ___ ________



          United States, 116 S. Ct. 1241, 1245 (1996).  Grant contends that
          _____________



          the  imposition of  consecutive  sentences for  four counts  that



          amounted to  the  same  offense  violates this  principle.    The



          government  responds  that  Grant  waived any  challenge  to  the



          indictment on Double Jeopardy grounds  by his plea agreement  and



          unconditional  plea  of  guilty   to  all  four  counts  in   the



          indictment.   It  argues  in the  alternative  that if  Grant  is



          permitted  to pursue a Double Jeopardy challenge to his sentence,


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to prevail he must establish that the felon-in-possession charges



          in the indictment were facially multiplicitous.



                    We  reject  the  government's  initial argument.    The



          caselaw  establishes   that   a  defendant   may  under   certain



          circumstances  mount a  Double Jeopardy  challenge to  a sentence



          arising out  of a conviction  to which  he pled  guilty.   United
                                                                     ______



          States v. Broce, 488 U.S. 563, 576 (1989); Menna v. New York, 423
          ______    _____                            _____    ________



          U.S. 61, 63  n.2 (1975)  (per curiam); Blackledge  v. Perry,  417
                                                 __________     _____



          U.S.  21 (1974).    The  government's  focus  here  on  the  plea



          agreement in addition  to the  plea itself does  not advance  the



          argument or provide an exception to the general principle.



                    The  government's  alternative  argument   is  correct.



          Grant must  show that the indictment  was facially multiplicitous



          to prevail on his Double Jeopardy challenge.



                    When a criminal defendant  pleads guilty, he admits not



          only  that  he committed  the  factual  predicate underlying  his



          conviction,  but  also  "'that  he committed  the  crime  charged



          against him.'"  Broce, 488 U.S. at 569 (quoting North Carolina v.
                          _____                           ______________



          Alford, 400 U.S. 25, 32 (1970)).  "Just as a defendant who pleads
          ______



          guilty to a single  count admits guilt to the  specified offense,



          so  too does  a defendant  who pleads  guilty to two  counts with



          facial  allegations  of distinct  offenses  concede  that he  has



          committed two separate offenses."  Id. at 570.
                                             ___



                    At  the  plea hearing,  the  district  court repeatedly



          directed Grant's attention to  the fact that he had  been charged



          with four different  crimes.   See Transcript of  Change of  Plea
                                         ___


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Hearing, Feb. 28, 1996, at 6, 11.  After being so apprised, Grant



          entered an unconditional plea on each count.  Having conceded the



          facts  in the indictment, he  cannot now contend  that the counts



          constitute   the   same   offense   unless   they  are   facially



          multiplicitous.



                    Here,   the  facial  allegations  of  the  four  counts



          consisted  of   distinct  offenses,   charging  Grant  with   the



          possession  of eleven different weapons in two separate cities on



          three  different dates.   While it  is true  that Counts  Two and



          Three charge Grant with possession of certain weapons on the same



          day, the  two counts  allege possession  of different  weapons in



          different  cities.  Count Two alleges  possession in Fairhaven of



          two   Glock  semi-automatic  pistols,  and  Count  Three  alleges



          possession  in Westport  of another  Glock  semi-automatic pistol



          (with  a different  serial number  from either  of the  two other



          Glocks) and a Ruger  semi-automatic pistol.  Grant's  guilty plea



          constituted  an  admission  to   each  of  the  distinct  factual



          predicates underlying the separate counts and,  consequently, the



          plea "conceded guilt  to [four] separate  offenses."  Broce,  488
                                                                _____



          U.S. at  571.  The four counts being distinct from one another in



          time, place, or both, and weapon possessed, they are not facially



          multiplicitous.



                    Grant's efforts to dodge  this conclusion are two-fold.



          First, he contends  that, because  neither the PSR  nor the  plea



          colloquy  establish  where Rivera  turned  the  firearms over  to



          Grant, we must disregard the distinction between the reference in


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Counts  One  and  Two  to  possession  of  different  firearms in



          Fairhaven  and  the  reference  in   Counts  Three  and  Four  to



          possession of other firearms in Westport.  Because Grant's guilty



          plea  to  all four  counts conceded  that  his possession  of the



          different  firearms took place  in the locations  alleged in each



          count, however, no such showing was required.



                    Grant's second  argument is  that the sentencing  court



          found that the possession  of these weapons amounted to  a single



          course of conduct.  Accordingly,  Grant reasons, the acts alleged



          in the  four separate  counts  constitute this  single course  of



          conduct,  making  them  the  same  offense  for  Double  Jeopardy



          purposes.   Again, Grant's argument fails.   First, Grant's claim



          that the district  court made  a finding that  his possession  of



          these firearms constituted a single  scheme or course of  conduct



          is belied by the record.  Second, the four separate counts simply



          do not allege simultaneous possession.



                    The  two  multiple  possession  cases  on  which  Grant



          relies, United States  v. Mullins,  698 F.2d 686,  687 (4th  Cir.
                  _____________     _______



          1983), and United States  v. Frankenberry, 696 F.2d 239,  245 (3d
                     _____________     ____________



          Cir. 1982), are  different from his situation  in one dispositive



          way.   In  those two  cases,  the defendants  were  tried on  and



          convicted of the  multiple possession counts.  Here, in contrast,



          Grant pled guilty to each  separate offense and thereby  admitted



          the  factual predicates  underlying the  offense.  He  cannot now



          argue that a factual issue remains regarding the location or time


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of  his possession of these  different firearms.   See Broce, 488
                                                             ___ _____



          U.S. at 569-71.



                    Based  on  the  foregoing,  we  reject  Grant's  Double



          Jeopardy challenge and affirm  the district court's imposition of



          a five  year sentence on Count  Four to run consecutively  to the



          concurrent  ten year  sentences imposed  on Counts One,  Two, and



          Three.



                                      CONCLUSION
                                      CONCLUSION



                    For the  foregoing reasons, we affirm  Grant's sentence
                                                   affirm
                                                   ______



          and  remand  to the  district  court  to append  to  the PSR  its
               remand
               ______



          findings regarding contested facts.


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