U.S. v. Grant

• Decision Date: 08 April 1997
• Docket Number: No. 96-1697,96-1697
• Citation: 114 F.3d 323
• Parties: UNITED STATES, Appellee, v. Jonathan A. GRANT, II, Defendant--Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 323

114 F.3d 323

UNITED STATES, Appellee, v. Jonathan A. GRANT, II, Defendant--Appellant.

No. 96-1697.

United States Court of Appeals, First Circuit.

Heard April 8, 1997.

Decided May 30, 1997.

Miriam Conrad, Federal Defender Office, Boston, MA, for appellant.

Sheila W. Sawyer, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

Before TORRUELLA, Chief Judge, BOUDIN and LYNCH, Circuit Judges.

TORRUELLA, Chief Judge.

On February 28, 1996, 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. 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

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 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 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.

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.

DISCUSSION

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

We review the district court's failure to hold an evidentiary hearing for abuse of discretion. United States v. Jimenez Martnez, 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 "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 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.

claims that the rationale of this court's decision in United States v. Jimenez Martnez applies to his case. See Jimenez Martnez, 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 Jimenez Martnez 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 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.

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-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-Marquez, 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...