United States v. Sturtevant

• Court: Court of Appeals for the First Circuit
• Decided: August 10, 1995
• Docket: 95-1018
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

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        No. 95-1018



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                 BRIAN D. STURTEVANT,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



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



                                Torruella, Chief Judge,
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                          Boudin and Stahl, Circuit Judges.
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            Peter B. Krupp, Federal Defender Office, for appellant.
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            Sheila W.  Sawyer, Assistant  United  States  Attorney, with  whom
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        Donald K. Stern, United  States Attorney, was on brief  for the United
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        States.


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                                   August 10, 1995

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Per Curiam.   On  February 7, 1992,  four Boston  police
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            officers patrolling the Cathedral Housing Projects,  observed



            appellant  Brian Sturtevant striking  Eric Randolph about the



            head.   After separating  the two  individuals, the  officers



            searched Sturtevant and discovered a loaded sawed-off shotgun



            concealed  inside one leg of his  pants.  They also found two



            shotgun  shells in  Sturtevant's right  coat  pocket and  one



            "hit" of crack cocaine inside his glove.  



                 Sturtevant  was indicted on  federal charges of  being a



            felon in possession of a  firearm, 18 U.S.C.   922(g)(1), and



            possessing an unregistered firearm, 26  U.S.C.   5861(d).  He



            was also charged in state  court with assault and battery and



            possession of a controlled substance.  On September 28, 1994,



            Sturtevant  pled  guilty  to  the  federal  charges  and  was



            subsequently sentenced to 72 months' imprisonment. 



                 The  presentence  report   recommended  that  Sturtevant



            receive  a  four-level  increase in  his  base  offense level



            pursuant to  U.S.S.G.   2K2.1(b)(5), which  requires a  four-



            level enhancement "[i]f  the defendant used or  possessed any



            firearm  or ammunition  in  connection  with  another  felony



            offense . .  . ."  The  probation officer concluded  that the



            enhancement  was warranted  because Sturtevant  had possessed



            the sawed-off shotgun  during his  altercation with  Randolph


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and--according  to   Randolph's  initial  statement   to  the



            police1--had  threatened  to  shoot  Randolph  prior  to  the



            fight.  



                 At  sentencing,   Sturtevant  opposed   the  recommended



            enhancement,  and submitted an affidavit from Randolph, dated



            November 22, 1994, in which he said that Sturtevant had never



            threatened him or mentioned a gun.   The government countered



            with an  affidavit from  Randolph, dated  November 28,  1994,



            saying that he (Randolph)  did not recall making  the precise



            statements  recounted  in  the  police  report,  but  he  did



            remember  telling the arresting  officer that (1)  he thought



            that Sturtevant must have been  carrying a gun to risk coming



            into his drug territory and punching him in the face, and (2)



            Sturtevant said that he was  now going to be "pumping," i.e.,
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            selling drugs, in Randolph's area.



                 At Sturtevant's request,  the district  judge granted  a



            continuance  until December 16,  1994, but indicated  that an



            evidentiary  hearing,  also  requested   by  Sturtevant,  was



            probably unnecessary.   On  December 16,  1994, the  district



            court applied  the four-level  enhancement, finding that  the



            possession  of the  shotgun  played  a  role  in  emboldening



            Sturtevant's actions towards  Randolph.  The court  said that



                                
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                 1The  officer, who  is now  deceased,  reported (in  the

            police report and  before the grand jury) that  Randolph said

            that  Sturtevant  approached  him  prior  to  the  fight  and

            declared, "get the fuck out of here, I'm taking over the drug

            trade now, and if you fuck with me, I'm going to shoot you."



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it gave little weight to Randolph's statements, but explained



            to Sturtevant that  he made these findings  "because you were



            out there on the street  with a deadly weapon; it might  have



            been in your pocket, but it was there in reserve."



                 The  only issue on appeal is  whether the district court



            abused  its  discretion  in failing  to  hold  an evidentiary



            hearing before levying the  four-level enhancement.  Although



            Sturtevant says  that an  evidentiary hearing  was needed  to



            test Randolph's credibility,  he has never directly  disputed



            Randolph's  claim--twice  repeated  and never  repudiated  by



            Randolph--that  Sturtevant started the fight.  There was also



            unrefuted evidence, independent of  Randolph, that Sturtevant



            actually  possessed  a  loaded sawed-off  shotgun  during his



            assault.    The  assault  was  a  felony  offense  under  the



            guidelines.   U.S.S.G.   2K2.1  comment. (n.7);  M.G.L.A. ch.



            265,   13A.



                 Given  the broad  reach  of  the  "in  connection  with"



            requirement, United States  v. Thompson,  32 F.3d  1, 3  (1st
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            Cir. 1994), we think that the  carriage of the gun during the



            assault satisfied the requirement of section 2K2.1(b)(5) that



            a firearm be  "used or possessed  . . .   in connection  with



            another  felony  offense .  .  .  ."   The  courts  have held



            repeatedly that the presence of a readily available weapon in



            a  location containing drugs is  enough.  E.g., United States
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            v.  McFadden, 13  F.3d 463,  465-66 (1st  Cir. 1994).   Here,
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there  might be enough  undisputed evidence for  the district



            court  to  conclude  that this  assault  was  associated with



            drugs.   Still,  if the  enhancement  turned on  Sturtevant's



            purpose or alleged threats, perhaps a hearing might have been



            required. 



                 But we  think that on  the present facts the  motive for



            the assault does not matter.  Sturtevant  carried the shotgun



            on  his person  during his  assault.  The  connection between



            that  crime (the  assault) and the  gun seems  to us  no less



            close than the connection between a drug hideout and gun.  In



            each instance, the weapon provides an added sense of security



            and has a substantial potential for use in the course of  the



            particular crime in question.2   This is not  the case of  an



            accountant  who, while forging checks, happens  to have a gun



            in the desk drawer.



                 In  short, a  hearing  would  have  served  no  purpose.



            Sturtevant was free to testify but made no request  to do so,



            and  Randolph's testimony would  not have altered  the result



            even if he had said that no threats were made and  the reason



            for the assault was a mystery.  



                 Affirmed.
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                 2Compare United States v. Eaton, 890 F.2d 511,  512 (1st
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            Cir.  1989), cert. denied,  495 U.S. 906  (1990) (drug case),
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            with  United States  v. Routon,  25 F.3d  815, 819  (9th Cir.
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            1994) (car theft).  This  court cited Routon with approval in
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            United States v. Thompson, 32 F.3d 1, 6 (1st Cir. 1994).
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