169 F.3d 89 (1st Cir. 1999), 98-1707, United States v. Brown

Docket Nº:98-1707.
Citation:169 F.3d 89
Party Name:UNITED STATES, Appellee, v. Adam BROWN, Defendant, Appellant.
Case Date:March 03, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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169 F.3d 89 (1st Cir. 1999)

UNITED STATES, Appellee,

v.

Adam BROWN, Defendant, Appellant.

No. 98-1707.

United States Court of Appeals, First Circuit

March 3, 1999

Heard Jan. 5, 1999.

Page 90

Paul F. Markham, by appointment of the Court, for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

TORRUELLA, Chief Judge.

Before the Court is Defendant-appellant Adam Brown's appeal of: (1) the denial of his motion to suppress evidence found during his arrest, and (2) his sentence of 100 months imprisonment for possession of a stolen firearm. We affirm the judgment of the district court in both respects.

BACKGROUND

On May 3, 1996, plainclothes Boston police officers Brian Black, Joseph Freeman, and Susan Antonucci were on patrol in an unmarked police car in the Roxbury area of Boston, Massachusetts. As they approached the apartment building located at 150 Walnut Avenue, they observed Brown and another male leaving the building. The officers decided to speak with the two individuals, so they stopped the car. Officer Black claims that he said to them, "Boston Police. May I have a word with you?" When the men turned around and began to walk back toward the apartment building, Officer Black got out of the car and again said, "Boston Police. May I speak with you?" Brown then walked back inside the apartment building, and the other individual walked around the side of the building. Officer Black followed Brown into the building and saw Brown walking up a stairwell. Officer Black started up the stairs and again said, "Boston Police. May I have a word with you?" At this point, Brown pushed Officer Black and tried to flee up the stairs. Officer Black then tackled Brown, and Officers Antonucci, Freeman, and William O'Hara, who was already in the building lobby on an unrelated matter, assisted in arresting Brown. During Brown's arrest, the officers found a .357 caliber

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revolver--later found to be stolen--on Brown's person.

On July 17, 1996, Brown was charged with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Brown moved to suppress the firearm and other evidence recovered at his arrest. He denied pushing Officer Black and argued that the officers possessed neither probable cause to arrest nor reasonable suspicion to warrant an investigative stop. After hearing testimony from Officers Black, Antonucci, and O'Hara, 1 the district court denied Brown's motion to suppress. The court found that, while the events that occurred prior to the altercation on the stairwell would not have been sufficient to justify an arrest or investigative stop, once Brown pushed Officer Black on the stairwell, Officer Black had probable cause to arrest Brown for assault and battery on a police officer.

After the government filed a superseding information, Brown waived indictment and entered a conditional guilty plea to one count of possession of a stolen firearm in violation of 18 U.S.C. § 922(j), reserving the right to appeal the denial of his motion to suppress and his sentence. At sentencing, Brown's base offense level was set at 24, pursuant to U.S.S.G. § 2K2.1(a)(2), because Brown had at least two prior felony convictions of either a crime of violence or a drug offense. Over Brown's objection, the district court also applied a two-level enhancement under § 2K2.1(b)(4) because the firearm was stolen. After applying a two-level reduction for acceptance of responsibility and determining that Brown qualified for Criminal History Category VI, the court found the applicable sentencing range to be 100-125 months. Brown was sentenced...

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