United States Court of Appeals For the First Circuit
No. 23-1337
UNITED STATES OF AMERICA,
Appellee,
v.
CARL LANGSTON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Montecalvo, Lynch, and Rikelman, Circuit Judges.
Robert Herrick for appellant.
Benjamin M. Block, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
August 2, 2024 RIKELMAN, Circuit Judge. Carl Langston appeals his
conviction for possessing a gun in violation of 18 U.S.C.
§ 922(g)(1), the felon-in-possession statute. Langston's primary
argument is that this statute is unconstitutional under the Second
Amendment as applied to him. In particular, he claims that the
government cannot, consistent with the Second Amendment, bar him
from ever possessing a gun again based on his previous convictions
under Maine law for theft and drug trafficking. Because Langston
challenges the constitutionality of § 922(g)(1) for the first time
on appeal, we must review his claim under the plain-error standard,
which requires that any error be "clear" or "obvious." And,
because it is not "clear" or "obvious" that § 922(g)(1) is
unconstitutional under the Second Amendment as applied to someone
with Langston's criminal history, he cannot prevail under this
standard. Langston also challenges the district court's denial of
his motion to suppress evidence (including the gun) uncovered
during a police stop, as well as several of the district court's
sentencing decisions. We agree with the district court's ruling
that the police stop was based on reasonable suspicion and find no
errors in the court's sentencing decisions. Thus, we affirm
Langston's conviction and sentence.
I. BACKGROUND
Because this appeal follows Langston's guilty plea, we
draw the facts relevant to Langston's sentencing from "the probation office's presentence investigation report (PSR), the
plea agreement, . . . the transcript of the sentencing hearing,"
and the sentencing exhibits. United States v. Colón-Cordero, 91
F.4th 41, 45 (1st Cir. 2024); see also United States v.
Ruperto-Rivera, 16 F.4th 1, 3 (1st Cir. 2021). As for the facts
relevant to Langston's suppression argument, "[w]e recite [them]
as found by the district court," United States v. Werra, 638 F.3d
326, 328 (1st Cir. 2011), and view them "in the light most
favorable to the district court's ruling," United States v. Soares,
521 F.3d 117, 118 (1st Cir. 2008) (quoting United States v.
Kimball, 25 F.3d 1, 3 (1st Cir. 1994)).
A. Langston's Arrest at The Bar on February 7, 2021
Two incidents are critical to this appeal. The first,
which gave rise to Langston's conviction, took place at The Bar in
Portland, Maine.
Shortly before midnight on February 6, 2021, the
Portland Police Department (PPD) received a 911 call about a
disturbance at The Bar. An anonymous tipster reported that "a
black male wearing a black hat with horns . . . [was] yelling and
had punched a white male that had a beard." The injured man
reportedly had left, while "the black male was still outside
yelling."
The PPD dispatched two officers, Garrick Rogers and Ryan
Cannell, to investigate. When they arrived, The Bar was quiet, and no one matching the description provided by the tipster was
present. Rogers and Cannell spoke with a bouncer, who confirmed
that a fight had occurred but stated that a "recurrence was
unlikely unless the participants encountered each other again
somewhere else that night." Satisfied that all was well for the
moment, Rogers and Cannell left The Bar.
Soon after, the anonymous tipster placed another 911
call. This time, he identified himself as "Shawn" and gave his
address and telephone number. Shawn reported that the man who had
"started the fight" was "still in the bar." A few minutes after
Shawn's call, The Bar's off-site manager called 911 to convey a
report he had received from an on-site security guard. The PPD
dispatch then relayed these latest tips over the radio:
One of the males involved in the fight went to his car and grabbed a 1032 gun. He's now looking for another male that he was fighting with. They said he had a pistol in his coat. Black male, 5'10", maroon jacket with a grey hood. He's currently outside the bar with his hand in his pocket.
Rogers and Cannell, along with a third officer, Zachary Theriault,
returned to the scene to investigate.
When Rogers arrived back at The Bar, he saw an individual
outside who matched the description from the 911 calls, down to
the maroon jacket, grey hood, and black hat decorated with a horns
design. That individual turned out to be Carl Langston, although
Rogers did not know his name at the time. Langston appeared to be arguing with another man outside The Bar; from Rogers's
perspective, the man appeared to be blocking Langston's entrance
into The Bar, and Langston appeared to be pushing against the man,
trying to get in.
Rogers approached and told Langston to put his hands on
his head. Langston first replied, "Who?" After Rogers repeated
his command, Langston retreated slightly and said, "Nah." As he
backed away from Rogers, Langston held his right arm close against
his right jacket pocket, in a manner that led Rogers to believe
that a gun could be located there.
Meanwhile, Theriault approached The Bar from the
opposite side, moving in from behind Langston, out of Langston's
sight. He observed Langston refusing to comply with Rogers's
commands and, because he could not see Langston's hands from
behind, worried that Langston might pull a gun out of his jacket,
given the information relayed by the PPD that Langston "had a
pistol in his coat." After Langston turned around and saw
Theriault behind him, Theriault grabbed Langston's right wrist and
shoulder to stop him from reaching for a weapon. Langston tried
to break the hold and pull away, at which point Rogers entered the
fray. Theriault intentionally dropped to the ground, with Langston
on top of him, where the three men struggled.
Cannell then arrived on the scene and began assisting
Theriault and Rogers in subduing Langston. After about a minute, the three men successfully gained control of Langston, and Rogers
handcuffed him. Theriault sustained a knee abrasion during the
struggle.
Shortly after handcuffing Langston, Theriault and Rogers
noticed the grip of a pistol in Langston's right pocket. They
secured the pistol and, after searching Langston, found a loaded
magazine. They then arrested Langston for refusing to submit to
arrest or detention in violation of Maine law. Other state charges
against Langston were later added, including felony assault on an
officer. The state eventually dropped those charges in favor of
federal prosecution.
B. Langston's Indictment and Motion to Suppress
In October 2021, a grand jury indicted Langston with one
count of violating the federal felon-in-possession statute, 18
U.S.C. § 922(g)(1), based on his prior felony convictions under
Maine law for theft and drug trafficking. Although the indictment
and Langston's PSR contain limited information about the theft
offense, it appears that Langston was convicted of violating title
17-A, section 353 of the Maine Criminal Code, which criminalizes
theft by unauthorized taking or transfer. As for the drug offense,
Langston was convicted of heroin trafficking in violation of
section 1103(1-A)(A) of the Code.
After his indictment, Langston moved to suppress the
evidence that the PPD officers had obtained when they tried to stop him outside The Bar. He argued that the Fourth Amendment to
the U.S. Constitution required the suppression of the gun and
ammunition because the officers lacked "reasonable suspicion" to
perform their investigatory stop of him that night. The district
court held an evidentiary hearing, at which Rogers and Theriault
testified. It then determined that the totality of the
circumstances gave rise to reasonable suspicion that criminal
activity was afoot and denied Langston's motion.
Langston then entered into a conditional plea agreement
with the government in November 2022. Under that agreement, he
retained the right to appeal the court's suppression order.
Before Langston's sentencing, the probation officer
submitted a PSR to the district court. In the PSR, the officer
calculated Langston's base offense level as fourteen; he then added
four levels for possessing a firearm during felony assault on an
officer and subtracted three levels for Langston's acceptance of
responsibility, for a total offense level of fifteen. Combined
with a criminal history category of VI, this yielded a guideline
sentencing range (GSR) of forty-one to fifty-one months.
C. Incident at The Brook Casino During Langston's Pretrial Release
The second incident critical to this appeal took place
at The Brook casino in Seabrook, New Hampshire, four months after
Langston pleaded guilty and while he was on release pending sentencing. Langston was playing poker at The Brook when the
dealer at his table accidentally exposed a card during the hand.
The dealer called over a floor manager, who "followed the correct
procedures to fix the mistake." Langston remained upset, however,
and the floor manager asked Jason Gigliello, the casino manager,
to speak with him.
To address Langston's concerns, Gigliello called the
casino's surveillance team, who reviewed the hand and confirmed
that the dealer had properly fixed the error. After Gigliello
told Langston that "surveillance was conclusive," Langston became
"combative and agitated." Gigliello then summoned security, at
which point Langston "turned aggressive" and told Gigliello that
he would "get[ his] $200 back one way or another." After Langston
refused to leave on his own, Gigliello called the police and asked
them to remove Langston from the casino. According to Gigliello's
report, Langston "appeared intoxicated" and was "unsteady on his
feet."
One of the Seabrook police officers who responded to
Gigliello's call noted that Langston smelled like alcohol, and "it
was clear that he just had too much to drink." After Langston
refused to give the officers his full name or hand over his
license, they took him into protective custody. They then
transported him to the police station, where they found Langston's
license and determined that he was on federal probation. The Seabrook police sent a report on the incident to
Langston's probation officer. Based on the police report, the
probation officer concluded that Langston had violated his
pretrial release conditions, which required him to refrain from
drinking and to inform his probation officer about any contact
with law enforcement. The probation officer then submitted several
revisions to the PSR, suggesting that Langston be denied credit
for acceptance of responsibility.
D. Langston's Sentencing
Shortly after the casino incident, in late March 2023,
the district court held Langston's sentencing hearing. At the
hearing, Langston told the court that he had no objection to the
PSR, which included a recommendation for a four-level offense
enhancement based on the state charge that he possessed a gun
during an assault on an officer outside The Bar. Langston did
object, however, to three exhibits that the government sought to
introduce to prove that he violated his pretrial release conditions
by drinking at the casino. Specifically, Langston objected to
(1) the protective custody report from the Seabrook police, (2) an
email from the Director of Casino Operations, indicating that
casino staff had served Langston ten drinks (nine alcoholic) and
identifying the staff who did so and when, and (3) an email from
the casino's Surveillance Director, which included screenshots of
staff serving Langston drinks. Langston insisted that these exhibits were unreliable, claiming that the police report
incorrectly recounted the poker-hand incident and the casino
emails came from individuals with no personal knowledge of his
alleged drinking. The court overruled these objections and
concluded that, after reviewing all the evidence, which included
surveillance footage of Langston in the police vehicle that night,
"there[] [was] no question . . . that [Langston] was inebriated"
at the casino.
The district court then addressed whether Langston had
accepted responsibility for his offense. After hearing from both
sides, the court concluded that Langston was not entitled to the
acceptance-of-responsibility credit because of his conduct at the
casino while he was on pretrial release (as well as because of an
interim incident not at issue in this appeal). The court explained
the similarities between Langston's behavior at The Bar and The
Brook:
The initial offense [at The Bar] involved drinking at a bar, not cooperating with police, resisting the police. We had a later event where he was at a different bar, The Lodge, where he got into an argument with a customer and he was restrained by his companion. And then we have this event. I find he was intoxicated at the casino. He was drinking in violation of his bail provisions. He was asked to leave multiple times and refused. I base this on the exhibits. The security guard, I note, felt he was drinking; the police smelled alcohol. When the police came he refused to give his full name multiple times, in spite of the fact that he was on probation and subject to bail conditions. Multiple times he gave his name as Carl, refused to give his name, acting like a -- he was toying with the police. When the police attempted to take him out, the police described him as aggressively jerking his arm. He continued to refuse to cooperate with the police, and I'm referring back again to the analogy to the earlier offense. He made comments to the casino manager, I believe it was the manager, saying I'm going to get my two dollars back -- $[]200 back one way or another, which to me is a threat. And he didn't report this incident to the probation officer until March 21st. I understand that his position is that the policeman could have reported it, but that was not the -- the bail obligation. It was his obligation to report it, making light of his obligations. I think coupled with the original offense, it appears to me he hasn't learned much. And I find there's no acceptance of responsibility.
Without the acceptance-of-responsibility credit, the
district court calculated Langston's total offense level as
eighteen. Combined with a criminal history category of VI, this
yielded a GSR of fifty-seven to seventy-one months. The court
sentenced Langston to fifty-seven months in prison -- the lowest
end of this range.
II. DISCUSSION
As we previewed above, this appeal raises three main
issues. First, Langston brings an as-applied Second Amendment
challenge to his statute of conviction. Second, Langston claims
that the police officers did not have reasonable suspicion to stop
him at The Bar. Third, Langston contends that the district court made several errors at sentencing. We address each argument in
turn and ultimately conclude that none has merit.
A. Second Amendment Challenge to 18 U.S.C. § 922(g)(1)
Langston's primary argument on appeal is that the
felon-in-possession statute, 18 U.S.C. § 922(g)(1), is
unconstitutional under the Second Amendment as applied to him.
See U.S. Const. amend. II. In particular, he claims that
§ 922(g)(1) cannot, consistent with the Second Amendment, prohibit
someone with previous convictions under Maine law for theft and
drug trafficking from ever owning a firearm again. In Langston's
view, this conclusion should have been clear and obvious to the
district court after the government failed to provide any evidence
that such a prohibition conforms to our historical tradition of
firearm regulation. In making this argument, Langston relies on
New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022),
which was decided about nine months before his sentencing, as well
as the Supreme Court's recent decision in United States v. Rahimi,
144 S. Ct. 1889 (2024).
We begin by reviewing the key legal principles that apply
to Langston's constitutional challenge. The Second Amendment
provides that "[a] well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear
Arms, shall not be infringed." U.S. Const. amend. II. In a series
of decisions, the Supreme Court has determined that this provision protects the right of an ordinary, law-abiding individual to keep
and bear arms. See Rahimi, 144 S. Ct. at 1897; Bruen, 597 U.S. at
8-9; McDonald v. Chicago, 561 U.S. 742, 750 (2010); District of
Columbia v. Heller, 554 U.S. 570, 595 (2008). And, when the
government restricts this right, it bears the burden of justifying
the restriction by showing that it is consistent with our history
and tradition. See Rahimi, 144 S. Ct. at 1897; Bruen, 597 U.S. at
24.
The Supreme Court clarified the scope of the history and
tradition test under the Second Amendment in Rahimi, which both
parties agree provides the governing legal standard that we must
apply here.1 See Henderson v. United States, 568 U.S. 266, 268-69
(2013) (holding that an error that was not plain at the time the
trial court acted may be plain at the time of appellate review
based on subsequent legal developments). In Rahimi, the Court
1 Indeed, in the wake of Rahimi, the Supreme Court granted several pending petitions for certiorari involving Second Amendment challenges to § 922(g)(1) post-Bruen, vacated the decisions below, and remanded to the appellate courts to reanalyze the challenges under Rahimi. The Court vacated the decisions regardless of whether the decision had upheld or rejected a Second Amendment challenge to § 922(g)(1). See, e.g., Range v. Att'y Gen. U.S., 69 F.4th 96, 106 (3d. Cir. 2023) (en banc) (finding § 922(g)(1) unconstitutional under Bruen as applied to an individual with a prior felony conviction for food stamp fraud), vacated sub nom. Garland v. Range, No. 23-374, 2024 WL 3259661 (July 2, 2024); United States v. Jackson, 69 F.4th 495, 505-06 (8th Cir. 2023) (reaching the opposite conclusion for individual with prior felony convictions for selling drugs), vacated, No. 23-6170, 2024 WL 3259675 (July 2, 2024). noted that "some courts ha[d] misunderstood the methodology of
[its] recent Second Amendment cases" and explained that "[t]hese
precedents were not meant to suggest a law trapped in amber." 144
S. Ct. at 1897. It then held that the Second Amendment "permits
more than just those regulations identical to ones that could be
found in 1791" and thus does not require a "historical twin" to
justify a modern firearm restriction. Id. at 1897-98 (quoting
Bruen, 597 U.S. at 30). Instead, the correct constitutional
inquiry is whether the restriction is "consistent with the
principles that underpin our regulatory tradition," meaning
whether it is "'relevantly similar' to laws that our tradition is
understood to permit." Id. at 1898 (quoting Bruen, 597 U.S. at
29). "Why and how the regulation burdens the [Second Amendment]
right are central to this inquiry." Id.
Applying this framework, the Supreme Court rejected
Rahimi's facial constitutional challenge to § 922(g)(8). See id.
This statute prohibits an individual from possessing a gun while
subject to a domestic violence restraining order if the order
includes a finding that the individual poses a "credible threat to
the physical safety" of a protected person. 18 U.S.C.
§ 922(g)(8)(C)(i).
As the Supreme Court explained, Rahimi's facial attack
had to fail because the provision was constitutional as applied to
his own case. See Rahimi, 144 S. Ct. at 1898. A state court had issued a restraining order against Rahimi after finding that he
posed "a credible threat" to the "physical safety" of his
girlfriend and their child. Id. at 1895. The government argued
that disarming Rahimi was therefore justified because
§ 922(g)(8)(C)(i) was consistent with the principles behind the
surety and going-armed laws of the 1700s and early 1800s, which it
identified as relevant analogues. See id. at 1899-1902. The
Supreme Court agreed. "Taken together, the surety and
going[-]armed laws confirm what common sense suggests," the Court
concluded, that "[o]ur tradition of firearm regulation allows the
Government to disarm individuals who present a credible threat to
the physical safety of others." Id. at 1901-02.
Turning back to this case, Langston contends that
§ 922(g)(1) is unconstitutional under the Second Amendment as
applied to him. Our decision here, however, is not on the merits.
Instead, because Langston concedes that he never made his Second
Amendment claim to the district court, both parties agree that we
must review Langston's claim only for plain error. See United
States v. Sansone, 90 F.4th 1, 6 (1st Cir. 2024) ("Unpreserved
claims of error, if not deemed waived, are reviewed only for plain
error.").
To prevail under the plain-error standard, Langston must
show that (1) the district court committed an error; (2) that error
was "plain -- that is to say, clear or obvious," (3) the error affected his substantial rights, and (4) leaving the error
uncorrected would "seriously affect[] the fairness, integrity or
public reputation of judicial proceedings." United States v.
Ortíz-Mercado, 919 F.3d 686, 689 (1st Cir. 2019) (citations
omitted). We need not address the prongs of the plain-error
standard in any particular order. See Dimanche v. Mass. Bay
Transp. Auth., 893 F.3d 1, 10, 12 (1st Cir. 2018).
We start with the second prong, which requires us to
decide whether the error -- if there was one -- was "plain." As
we have explained, a plain error must be "indisputable." United
States v. Correa-Osorio, 784 F.3d 11, 22 (1st Cir. 2015) (quoting
United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014)). Thus,
"[t]o obtain relief from his conviction, . . . [Langston] must
show not only that [§ 922(g)(1)'s application to him was
unconstitutional] but also that it was obviously so." United
States v. Diaz, 285 F.3d 92, 96 (1st Cir. 2002). To demonstrate
that the statute was obviously unconstitutional, Langston can
point either to binding on-point precedent or show "that [his]
theory 'is compelled' by constitutional law, statute, regulation,
or other legal mandate." United States v. Grullon, 996 F.3d 21,
33 (1st Cir. 2021) (quoting United States v. Romero, 906 F.3d 196,
207 (1st Cir. 2018)). In the plain-error context, binding on-point
precedent means a decision that adopts Langston's argument that
§ 922(g)(1) is unconstitutional as applied to an individual with underlying convictions under title 17-A, sections 353 and
1103(1-A)(A) of the Maine Criminal Code. See Romero, 906 F.3d at
207.
We conclude that Langston fails under the plain-error
standard for at least two reasons. First, there is no binding
on-point precedent: No case from the Supreme Court or our court
holds that § 922(g)(1) is unconstitutional in any of its
applications, much less as applied to an individual with previous
convictions under these sections of the Maine Criminal Code.
Second, the legal test from Rahimi does not "compel" the
conclusion that § 922(g)(1) is unconstitutional under the Second
Amendment as applied to defendants with Langston's criminal
history, as charged in his indictment. To be sure, an error can
be plain if an outcome contrary to the district court's decision
is "compelled" by "legal mandate." See Grullon, 996 F.3d at 33
(quoting Romero, 906 F.3d at 207). Our precedent therefore allows
for the possibility that a statute that restricts a constitutional
right could be plainly unconstitutional under a newly articulated
legal test. But that is not the case here.
Rather than compelling the conclusion that § 922(g)(1)
is unconstitutional, the Supreme Court's Second Amendment cases
consistently reiterate, albeit in dicta, the presumptive
lawfulness of the felon-in-possession statute. The Court noted in
both Heller and McDonald that "nothing in [its decisions] should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons." Heller, 554 U.S. at 626-27;
see also McDonald, 561 U.S. at 786 (repeating Heller's assurances).
Heller referred to felon-in-possession laws as "presumptively
lawful regulatory measures." 554 U.S. at 627 n.26. And Bruen
incorporated and expanded upon the Court's statements in Heller
and McDonald. See Bruen, 597 U.S. at 26, 29; see also id. at 80-81
(Kavanaugh, J., concurring) ("[N]othing in our opinion should be
taken to cast doubt on longstanding prohibitions on the possession
of firearms by felons . . . ." (alteration in original) (quoting
Heller, 554 U.S. at 626-27)).
Most importantly, the Supreme Court's majority opinion
in Rahimi, joined by eight justices, once again identified
prohibitions on the possession of firearms by felons as
"presumptively lawful." 144 S. Ct. at 1902 (quoting Heller, 554
U.S. at 627 n.26). Thus, Langston's argument that the legal test
laid out in Rahimi compels the conclusion that certain applications
of § 922(g)(1) violate the Second Amendment is contradicted by the
text of Rahimi itself.
To be sure, Langston presents a serious constitutional
claim that the Supreme Court has not yet resolved. As Langston
points out, Rahimi held only that an individual may be temporarily
disarmed, consistent with the Second Amendment, if a court has
found that the individual poses a credible threat to the physical safety of another. See id. at 1903. Still, the Supreme Court has
stated repeatedly over sixteen years, from Heller to Rahimi, that
felon-in-possession laws are presumptively lawful. Thus, on
plain-error review, we cannot agree with Langston that the mere
fact that the government did not introduce historical evidence to
support the constitutionality of § 922(g)(1) makes it clear and
obvious that Langston's conviction violates the Second Amendment.
At times, Langston has framed his Second Amendment claim
as a challenge to § 922(g)(1) as applied to all individuals with
nonviolent underlying convictions. To the extent that Langston is
bringing this alternative claim, we conclude that his challenge
fails under plain-error review for another reason: It would not
have been clear and obvious to the district court that Langston
fell within this category of individuals, given his prior
conviction for heroin trafficking.2 See United States v.
Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011) (suggesting that
drug dealing was likely to be considered a violent felony).
We note, too, that Langston has prior convictions for 2
violent criminal conduct. For example, Langston's criminal history report shows that he was convicted of domestic violence assault in 2008 after punching his girlfriend in the face and grabbing her by her throat. Although the government did not include this conviction as an underlying offense in the indictment, it indicated at oral argument that it would have sought to file a superseding indictment relying on this conviction had Langston raised his Second Amendment argument at the district court. In sum, Langston fails to show that § 922(g)(1) clearly
and obviously violates the Second Amendment as applied to him,
given his previous convictions under Maine law for theft and drug
trafficking. We therefore reject his Second Amendment challenge.3
B. Fourth Amendment Challenge to the Investigatory Stop
When Langston pleaded guilty, he retained the right to
appeal the district court's denial of his suppression motion. We
turn to that challenge now.
Langston argues that the PPD officers violated the
Fourth Amendment by stopping him outside The Bar. See U.S. Const.
amend. IV; United States v. Tiru-Plaza, 766 F.3d 111, 115 (1st
Cir. 2014) (explaining that the Fourth Amendment's protections
3 Although we always conduct our own independent analysis of Supreme Court precedent, the parties could not cite to any case from another circuit court that has held the felon-in-possession statute to violate the Second Amendment, in any of its applications, under the plain-error standard. The only circuit to reach the merits of an unpreserved constitutional challenge to § 922(g)(1) did so under distinguishable circumstances, and the opinion has been vacated in the wake of Rahimi. See United States v. Duarte, 101 F.4th 657, 663 (9th Cir.), reh'g en banc granted, opinion vacated, No. 22-50048, 2024 WL 3443151 (9th Cir. July 17, 2024). In Duarte, the United States Court of Appeals for the Ninth Circuit reviewed de novo the statute's constitutionality under Bruen, even though the defendant had not raised his Second Amendment argument to the district court. See id. at 663. The court concluded that the defendant had "good cause" under Federal Rule of Criminal Procedure 12(b)(4)(B)(c)(1) for failing to raise the issue in the district court because circuit precedent foreclosed the argument and Bruen had not yet been decided. See id. By contrast, as we noted above, Bruen was decided nine months before Langston's sentencing, so he had the opportunity to raise his argument to the district court. against unreasonable search and seizure extend to "brief
investigatory stops" that fall "short of traditional arrest"
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002))). For
a stop like this to be constitutional under the Fourth Amendment,
officers must have "a reasonable suspicion supported by
articulable facts that criminal activity 'may be afoot.'"
Tiru-Plaza, 766 F.3d at 115 (quoting United States v. Sokolow, 490
U.S. 1, 7 (1989)). Langston claims that the district court erred
by determining that the officers had that reasonable suspicion
here.
The district court's reasonable suspicion determination
is a legal conclusion that we review de novo. Id. But in doing
so, we "give appropriate weight to the inferences drawn by the
district court and the on-scene officers, recognizing that they
possess the advantage of immediacy and familiarity with the
witnesses and events." Id.
After holding an evidentiary hearing, the district court
rejected Langston's Fourth Amendment challenge in a carefully
reasoned opinion. It determined that the officers acted with
reasonable suspicion based on three sources of information: "(1)
the various accounts received from the three informants; (2) [the
officers'] own observations of [Langston's] appearance and
behavior immediately preceding the stop; and (3) their law enforcement training and experience, which included their
experience policing" this neighborhood.
On appeal, Langston focuses on this first category: the
accounts from the various informants. He argues that the district
court erred by considering both 911 calls by Shawn, as well as the
information conveyed by the bar bouncer and the bar manager, in
its reasonable suspicion analysis. Instead, Langston argues, only
two accounts are relevant here: Shawn's second 911 call, and the
off-site bar manager's "third-hand" report from his on-site
security guard that a patron had a concealed gun. That's because,
in Langston's view, there were two separate incidents at The Bar
that night, and the police officers and the court should not have
considered information related to the earlier incident (the fight)
in evaluating whether Langston's stop was reasonable.
Viewing the record in this piecemeal fashion would
violate our precedent. When evaluating whether reasonable
suspicion exists, "our task is not to perform a divide-and-conquer
analysis but to look at the totality of the circumstances." United
States v. Harrington, 56 F.4th 195, 202 (1st Cir. 2022) (internal
quotation marks omitted) (quoting United States v. Cruz-Rivera, 14
F.4th 32, 45 (1st Cir. 2021)). "[T]he relevant inquiry is an
objective one based on all 'the cumulative information available
to [the officers]' at the time of the search [or stop]." United
States v. Qin, 57 F.4th 343, 349 n.7 (1st Cir. 2023) (quoting Arvizu, 534 U.S. at 273). Indeed, Langston admits that the
totality-of-the-circumstances standard applies. And he could not
point to any case law suggesting that, in conducting a
totality-of-the-circumstances analysis, we should disregard
relevant information known to the officers simply because they
already conducted some initial investigation of that information.
Langston also argues that the bar manager's 911 call,
which conveyed "third-hand" information from an unknown source,
cannot on its own give rise to a reasonable suspicion of criminal
activity. In fact, Langston argues, that tip did not even indicate
that he was engaged in any criminal behavior, given that carrying
a concealed gun is not a crime in Maine. This argument, however,
again misstates the legal standard. True, an anonymous,
uncorroborated hearsay tip, on its own, may lack "sufficient
indicia of reliability to provide reasonable suspicion to make
[an] investigatory stop." Florida v. J.L., 529 U.S. 266, 270
(2000) (quoting Alabama v. White, 496 U.S. 325, 327 (1990)); see
United States v. Monteiro, 447 F.3d 39, 44-45 (1st Cir. 2006).
But the police did not act on the bar manager's tip alone. The
full picture here included Shawn's two 911 calls, the officers'
conversation with the bar bouncer (which validated the details
from Shawn's first 911 call), the bar manager's call, and the
officers' observations at the scene. Considering these informational sources together, we
conclude that the totality of the circumstances gave rise to a
reasonable suspicion that Langston was about to engage in criminal
activity -- public fighting, potentially with a gun on hand.
Shawn's first 911 call, combined with the officers' conversation
with the bar bouncer, suggested that a fight had occurred, and
further trouble was likely if the parties encountered each other
again that night. Shawn's second call, combined with the bar
manager's account, suggested that a second fight was imminent
because one of those parties had returned to The Bar with a weapon.
And when the police arrived on the scene, their observations of
Langston's interactions with another person outside The Bar and
Langston's appearance, which matched the informants' descriptions,
corroborated these accounts. Based on these circumstances, we
agree with the district court that that the officers had reasonable
suspicion to stop Langston outside The Bar that night.
C. Sentencing Challenges
Langston's remaining challenges concern the district
court's sentencing decisions. To begin, he argues that the
district court erred by enhancing his base offense level on the
ground that he possessed a firearm during a felony assault on a
police officer. Next, he contends that the district court
considered unreliable hearsay evidence in concluding that he
violated the conditions of his pretrial release by drinking. Finally, and by extension, Langston argues that the district court
clearly erred by finding that he had not accepted responsibility
for his offense. We disagree on each of these points.
1. The Felony Assault Enhancement
We begin with Langston's challenge to the district
court's four-level sentencing enhancement under section
2K2.1(b)(6)(B) of the U.S. Sentencing Guidelines. This provision
allows a district court to increase a defendant's base offense
level "[i]f the defendant . . . used or possessed any firearm or
ammunition in connection with another felony offense." U.S.S.G.
§ 2K2.1(b)(6)(B). The district court applied the enhancement
based on Langston's possession of the firearm during an assault on
a police officer -- a felony under Maine law. See Me. Rev. Stat.
Ann. tit. 17-A, § 752-A.
Ordinarily, "[when] a defendant challenges the factual
predicate supporting the district court's application of a
sentencing enhancement, 'we ask only whether the court clearly
erred in finding that the government proved the disputed fact by
a preponderance of the evidence.'" United States v. Cannon, 589
F.3d 514, 517 (1st Cir. 2009) (quoting United States v. Luciano,
414 F.3d 174, 180 (1st Cir. 2005)). Langston concedes, however,
that he did not object to the enhancement before the district court
and thus forfeited this claim. Still, he urges us to find that
the district court plainly erred by applying this enhancement. The government, for its part, argues that we should forgo review
of this argument altogether because Langston affirmatively waived
it when he told the district court that he had no objection to the
PSR, which recommended the four-level increase.
We need not resolve the parties' forfeiture versus
waiver disagreement. "Where a defendant's claim would fail even
if reviewed for plain error, we have often declined to decide
whether the defendant's failure to raise the issue below
constituted waiver or mere forfeiture." United States v.
Acevedo-Sueros, 826 F.3d 21, 24 (1st Cir. 2016). And here,
Langston has failed to show that the district court's application
of the enhancement amounted to plain error.
Langston contends that the district court erred by
applying the enhancement because his conduct at The Bar could
support only a misdemeanor charge for refusing to submit to arrest
or detention under Maine law. In support of this argument,
Langston points to two facts: Initially, he was arrested only for
refusing to submit to arrest or detention, and the altercation
with the officers occurred because he tried to get away from,
rather than fight with, them.
Even assuming Langston is correct on both these facts,
the district court's application of the enhancement still would
not be clearly and obviously wrong. See Ortíz-Mercado, 919 F.3d
at 689. Under Maine law, an individual can be liable for assault on an officer regardless of whether they are trying to engage or
disengage with the officer. See Me. Rev. Stat. Ann. tit. 17-A,
§ 752-A(1)(A) ("A person is guilty of assault on an officer
if . . . [h]e intentionally, knowingly or recklessly causes bodily
injury to a law enforcement officer while the officer is in the
performance of his official duties."). And whatever the basis for
his initial arrest at The Bar, Langston's PSR shows that the state
did charge him with assault on an officer in connection with this
incident. Accordingly, we reject Langston's argument that the
district court plainly erred by applying the enhancement.
2. Reliability of Hearsay Evidence
We turn next to Langston's challenge to the district
court's reliance on several government exhibits in concluding that
Langston violated his pretrial release conditions by drinking at
The Brook casino. Langston contends that the district court erred
by admitting three hearsay exhibits: the protective custody report
from the Seabrook police and two emails from casino managers
forwarding information from casino records about what drinks
Langston was served that night. Langston argues that these
exhibits lacked sufficient indicia of trustworthiness to support
their probable accuracy and thus the district court abused its
discretion by relying on them to conclude that Langston consumed
alcohol at the casino. See United States v. Rosa-Borges, 101 F.4th
66, 80 (1st Cir. 2024) (explaining that district courts may rely on hearsay evidence in making factual findings at sentencing, so
long as the evidence is supported by "sufficient indicia of
reliability"); United States v. Castillo-Torres, 8 F.4th 68, 71
(1st Cir. 2021) ("Determinations of reliability are reviewed for
abuse of discretion.").
Langston's arguments boil down to two claims: (1) the
police report got the facts wrong about the poker-hand dispute,
which undermines everything in the report, including the officer's
personal observation that Langston was intoxicated,4 and (2) the
emails from the casino managers are unreliable because the managers
had no personal knowledge of whether the drinks served to Langston
contained alcohol. We find neither claim convincing.
First, we see no reason why the officer's allegedly
erroneous description of the poker-hand dispute would undermine
the reliability of other statements in his report, including that
the officer could "smell the alcohol coming from [Langston's]
person" and that "it was clear that he just had too much to drink."
4 Langston also argues that the report is unreliable because it "depicts a patent misuse of the New Hampshire protective custody [statute]." He contends that the officer's observation that Langston smelled like alcohol was insufficient to take him into custody. But the relevant statute allows an officer to take into protective custody any person "who, in the judgment of the officer, is intoxicated." N.H. Rev. Stat. Ann. § 172-B:3(I). We see nothing in the statute, nor does Langston direct us to any authority, that suggests that an officer must observe certain other indicia of intoxication before taking a person into protective custody. Nor do we see the connection between this argument and the reliability of the officer's observations in the report. The officer's understanding of the poker-hand dispute does not
bear on his ability to make these routine observations. Second,
the casino's business records -- documenting that Langston
consumed alcohol -- are "entirely compatible" with and
corroborated by other admissible evidence in the record. See
United States v. Green, 426 F.3d 64, 67 (1st Cir. 2005). That
other evidence includes Gigliello's email, which recounted that
Langston "appeared intoxicated" and was "unsteady on his feet,"
and surveillance footage from the police cruiser, in which Langston
can be seen singing and slurring his speech.
Indeed, as the district court explained at sentencing,
it had reviewed the surveillance footage of Langston's behavior in
the back of the police cruiser and compared that behavior to its
own observations of Langston during his previous court
appearances. Langston "acted so different [in the back of the
cruiser] than he ha[d] any other time," the court noted, adding:
"He was singing to himself, he was groggy, his voice sounded
inebriated." Based on this video, the court concluded, "there's
no question . . . that he was inebriated."
Under these circumstances, we find that the district
court did not abuse its discretion by admitting the police report
and casino records as more evidence that Langston had consumed
alcohol at The Brook. 3. Acceptance-of-Responsibility Credit
In his last argument on appeal, Langston challenges the
district court's decision to deny him a three-level reduction for
accepting responsibility for his offense. Langston argues that,
even if he did violate his bail conditions, the violations were
too "attenuated" from his underlying offense to justify denial of
the acceptance-of-responsibility credit.
Under the Sentencing Guidelines, a defendant who
"clearly demonstrates acceptance of responsibility" is entitled to
a two-level decrease in their offense level. U.S.S.G. § 3E1.1(a).
A defendant who qualifies for this two-level decrease may also
obtain another one-level decrease if they "timely notify[]
authorities of [their] intention to enter a plea of guilty," among
other requirements. Id. § 3E1.1(b).
Whether a defendant has accepted responsibility for
their offense is a "factbound determination" that we review for
clear error. United States v. McCarthy, 32 F.4th 59, 62-63 (1st
Cir. 2022) (quoting United States v. Jordan, 549 F.3d 57, 60 (1st
Cir. 2008)). Because "[t]he sentencing court is steeped in the
nuances of the case, . . . we accord substantial deference to its
determination that acceptance of responsibility has not been
shown." Id. at 63. For this reason, "[w]e will not reverse
unless -- after a careful review of all the relevant facts -- we
are 'left with a definite and firm conviction that a mistake has been committed.'" Id. (quoting Brown v. Plata, 563 U.S. 493, 513
(2011)).
The district court denied Langston the
acceptance-of-responsibility credit based in part on his violation
of his pretrial release conditions. Under our precedent, "a
defendant's failure to comply with conditions of a bond [can] be
highly relevant to assessing the sincerity of the defendant's
contrition." United States v. McLaughlin, 378 F.3d 35, 40 (1st
Cir. 2004) (alteration in original) (quoting United States v.
Hooten, 942 F.2d 878, 883 (5th Cir. 1991)). Langston tries to
distinguish this precedent by arguing that the defendant in Hooten
breached the "core conditions" of his pretrial release while
Langston's "putative violation was isolated and technical in
nature." But the court did not deny Langston the credit simply
because he consumed alcohol or failed to notify his probation
officer about the incident at the casino.
Instead, the district court based its decision on the
overall similarities between the incidents at The Bar and The
Brook. As the court explained, both times, Langston became
disruptive and then non-cooperative with police after drinking.
At The Bar, he engaged in a fight, and at The Brook, he became
verbally combative and "was asked to leave multiple times and
refused." Each time, when police officers arrived on the scene,
Langston refused to comply with their instructions. At The Bar, Langston did "not cooperat[e] with" and "resist[ed]" the police
officers when they told him to put his hands on his head.
Similarly, at The Brook, Langston "refuse[d] to cooperate with the
police" by declining to identify himself. We cannot say that the
court clearly erred by finding that these similarities
demonstrated that Langston had not "accepted responsibility in any
authentic sense" for his conduct at The Bar. Jordan, 549 F.3d at
61.
We also reject Langston's argument that the district
court "struck the wrong balance," id. at 62, by finding that the
casino incident outweighed Langston's evidence of acceptance of
responsibility, i.e., his guilty plea, see McLaughlin, 378 F.3d at
40. Whether a "single adverse incident" outweighs a defendant's
"rehabilitative efforts" is a "quintessential judgment call" for
the sentencing court. Jordan, 549 F.3d at 62. Nothing in the
record suggests that the court clearly erred in balancing the
scales here, especially given that it cited an additional adverse
incident (not at issue in the appeal) in reaching its conclusion.
III. CONCLUSION
For all these reasons, we affirm Langston's conviction
and sentence.