U.S. v. Aitoro, 04-1742.
| Decision Date | 12 May 2006 |
| Docket Number | No. 04-1742.,04-1742. |
| Citation | 446 F.3d 246 |
| Parties | UNITED STATES, Appellee, v. Joseph AITORO, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Judith H. Mizner, for appellant.
David H. Koysza, with whom Michael J. Sullivan, United States Attorney, and Kimberly P. West, Assistant U.S. Attorney, were on brief, for appellee.
Before BOUDIN, Chief Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.
This appeal challenges the denial of defendant Joseph Aitoro's motion to suppress evidence and the validity of the sentence imposed after the defendant's entry of a guilty plea and subsequent conviction. We find no error in the court's denial of the motion to suppress or the court's factual findings at sentencing, but vacate the sentence imposed and remand the case for resentencing in light of United States v Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
On the evening of July 10, 2001, several officers with the Boston Police Department (BPD) were conducting a field investigation in the area on the border between Roxbury and Dorchester known as Grove Hall.1 The officers were stationed in the area around the intersection of Maple and Cheney Streets, a location described by the district court as "a high crime area with frequent street-level drug selling activity." On the night in question the weather was clear and the streets and intersection were well lit by street and building lights. Two officers, James Rattigan and John Conroy, were positioned on the roof of a four-story building overlooking the intersection, equipped with binoculars for surveilling the street below and with a walkie-talkie for communicating with the officers on the street. Three more officers were positioned on Cheney Street, watching two teenagers sitting on a stoop down the block. Other officers had distributed themselves around the area.
Just after ten o'clock, appellant Joseph Aitoro and one Deshawn Williams walked down Maple Street in the direction of Cheney Street. The two men spotted the three officers on Cheney Street, who had gotten out of their car in order to interview the teenagers they had been observing.2 Aitoro and his companion appeared quickly to recognize the three men as police officers. Officer Conroy, from up on the roof, heard one of the two men exclaim "Oh shit," and the pair then "did an abrupt about-face and sprinted in the reverse direction up Maple Street."
Both men were wearing loose Hawaiianstyle shirts that partially obscured the officers' view of their waists from the roof, but as they turned to run, Officer Rattigan saw Aitoro grab at the waist of his pants, where Rattigan saw a bulge that he thought was a gun. Although Williams had his hands in front of him and Rattigan could not see his precise movements, Rattigan perceived Williams also grabbing at his waist, and suspected that he, too, was reaching for a gun. Rattigan radioed supporting officers with instructions to stop the fleeing men, warning that they might be armed. Officer Martin Conley and other officers in a van nearby saw Aitoro and Williams, who by then had slowed to a walk, and stopped them. Conley frisked Aitoro and felt a pistol jammed into his pants at the waist. A second officer frisked Williams and found he too was carrying a gun. The officers arrested Aitoro and Williams.
Aitoro was held in a Suffolk County jail until October 27, 2001, when he was released on bail. The record reveals little about Aitoro's activities or whereabouts over the course of the next several months, but on May 10, 2002, a team of officers from the BPD, along with agents from the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), executed a search warrant at an apartment in Dorchester. There they found Aitoro asleep in bed, along with two loaded firearms, additional ammunition, three bags of cocaine base, six bags of heroin, and a bag of marijuana. They again arrested Aitoro.
On June 26, 2002, Aitoro was charged in an indictment with one count of possessing a firearm and ammunition as a convicted felon under 18 U.S.C. § 922(g)(1) (2000) stemming from the seizure of the gun from Aitoro's person in July 2001; a second count of the same stemming from the seizure of the two firearms from the room in which Aitoro was found in May 2002; two counts of possession with intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1) (2000), one each for the cocaine base and the heroin seized from the Dorchester apartment; and one count of possession of a firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c). A superceding indictment handed down by a grand jury on July 24, 2002, reiterated the charges against Aitoro and added Deshawn Williams as a codefendant under another felon-in-possession charge.3
Aitoro moved to suppress the pistol found on his person in July 2001 as the fruit of an unconstitutional search.4 He argued that the officers who stopped him on that July night lacked grounds to suspect him of wrongdoing, or, if they had rightfully stopped him, lacked grounds to frisk him. The district judge denied the motion, finding that Aitoro's exclamation at the sight of the police, his subsequent flight, his grabbing at his waist, and the fact that the incident took place in an area known for a high incidence of crime gave the police reason to stop Aitoro and sufficient concern for their safety to justify the frisk.
Under a plea agreement, Aitoro pled guilty to the felon-in-possession and narcotics charges, reserving his right to appeal the denial of his suppression motions and change his plea if successful. His trial on the charge of possessing a firearm in furtherance of a drug trafficking offense resulted in an acquittal by a petit jury in January 2004.5
At sentencing, the court determined that Aitoro merited a criminal history category of V. The court calculated Aitoro's base offense level under the drug quantity guideline, USSG § 2D1.1, and found that Aitoro had possessed 5.85 grams of cocaine. Aitoro challenged the drug quantity finding, highlighting an apparent disparity between earlier and later recorded weights of the drugs the police had seized. The record contained three documents indicating the weight of the drugs as measured at various times after Aitoro's arrest. The first was an inventory taken of Aitoro's possessions at the time of his arrest in May 2002. That inventory was produced by the ATF, and documented the seizure, among other items, of:
According to the ATF documents, after being stored for six weeks by the ATF, the drugs were sent to a Massachusetts drug laboratory for analysis. A second document, a receipt given by the state lab to the ATF when the lab received the drugs, listed:
• Six (6) Glassine Bags of Powder — 4.91 grams6
• Three (3) P/Bs White Rock Substance — 12.96 grams
• One (1) P/B Green Leaf Substance — 18.02 grams
These weights were identified as "Gross Weight[s]" on the receipt, indicating that they were the combined weights of the drugs themselves and the bags holding those drugs. The lab analyst who processed the heroin weighed the contents of only one of the six glassine bags of heroin but did not weigh the marijuana. He did calculate the precise net weight of the cocaine seized. His worksheet describing his analysis of the cocaine base listed a gross weight of 12.9182 grams and a net weight of 5.8543 grams.
Aitoro contended that the lower weights indicated on the ATF inventory cast too much doubt on either the reliability of the later weights or the identity of the earlier-and later-weighed drugs to support a finding that the later figures were accurate measures of the drugs with which Aitoro had been found. The district court disagreed, finding that the drugs weighed in the state lab were the drugs seized from Aitoro's room, and that the state lab weights were accurate. The state lab's 5.8543-gram figure for the cocaine base became the basis for a base offense level of 26 under USSG § 2D1.1.
The district court then imposed a two-level upward adjustment for possessing a firearm in close proximity to controlled substances under USSG § 2D1.1(b)(1) and a three-level downward adjustment for acceptance of responsibility under USSG § 3E1.1(a) & (b). These adjustments produced a total offense level of 25. The guidelines sentencing range that resulted was for a sentence of between 100 and 125 months. The court, sentencing before the decision in Booker, took the Guidelines as binding and imposed a sentence of 100 months, the low end of the guidelines range. It did so despite noting that Aitoro had a long arrest record and after giving him a warning that he needed to reform. It observed that Aitoro was obviously intelligent, was an engaged participant in his own defense, accepted responsibility for his crime, and had a grandmother who loved him and a daughter for whose upbringing he was responsible. Aitoro raised no constitutional objection to his sentence. He now appeals the denial of his motion to suppress and challenges his sentence.
Aitoro presses five questions on appeal. He argues: 1) that the July 2001 stop-and-frisk was unconstitutional and that the gun found on his person should have been suppressed;7 2) that the case should be remanded for resentencing under Booker, as interpreted by United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2005) and United States v. Heldeman, 402 F.3d 220 (1st Cir.2005); 3) that the government presented insufficient evidence to support a finding by a preponderance that Aitoro...
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