U.S. v. Matthews

• Decision Date: 07 August 2007
• Docket Number: No. 05-1925.,No. 05-1655.,05-1655.,05-1925.
• Citation: 498 F.3d 25
• Parties: UNITED STATES of America, Appellee, v. Larry MATTHEWS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

498 F.3d 25

UNITED STATES of America, Appellee, v. Larry MATTHEWS, Defendant, Appellant.

No. 05-1655.

No. 05-1925.

United States Court of Appeals, First Circuit.

Heard December 4, 2006.

Decided August 7, 2007.

William A. Hahn, with whom Hahn & Matkov was on brief, for appellant.

Sandra S. Bower, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Appellant Larry Matthews was convicted of being a felon in possession of a firearm and sentenced under the Armed Career Criminal Act ("ACCA") to the statutory minimum fifteen-year term of imprisonment. See 18 U.S.C. § 924(e)(1). His sentencing challenge requires us to consider an issue on which other circuits have split and ours has not yet explicitly spoken: whether juvenile adjudications constitutionally may be used as predicate convictions to support an ACCA enhancement. After a careful review of the relevant law in the context of this case, we find no due process barrier to the use of appellant's juvenile proceeding. His other sentencing arguments are equally unavailing, as are his trial-based claims of insufficient evidence and instructional error. We therefore affirm both his conviction and sentence.¹

I.

The facts as the jury could have found them are as follows. During the evening of August 11, 2003, four Boston police officers assigned to the Youth Violence Strike Force were driving through the city's Roxbury section in an unmarked police car when they observed a small group of men drinking alcohol outside the Lenox Street housing development. After appellant saw the police vehicle, he was observed making what appeared to be a "security adjustment" to an object at his waist. As the officers pulled up beside the men and Officer Bresnahan called out to appellant by name, appellant made a second adjustment and began to walk quickly away from the scene; he subsequently accelerated into a run. Appellant, who was known to three of the officers, had never run from them during previous encounters.

Two of the officers, Sullivan and Bresnahan, got out of the car and gave chase, following the defendant into the courtyard of the housing development and then into the building at 10 Lattimore Court.² As Sullivan entered the building, he saw appellant rise from a crouched position near an apartment door, and then run out of the building. After Sullivan moved to the spot where he had seen appellant, he discovered a .22-caliber pistol under the doormat in front of Apartment 87. Sullivan then yelled "gun" as Bresnahan, still chasing appellant, ran past Sullivan and back out to the courtyard.

Meanwhile, the other two officers, Brown and Freire, had driven into the parking lot of the complex and then into the courtyard from another direction. They saw appellant coming from the direction of 10 Lattimore Court and, after repeatedly ordering appellant to get to the ground, Freire forced him down, handcuffed him, and placed him under arrest. No fingerprints were found on the gun or the ammunition in it. Appellant subsequently was charged with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

At trial, the government sought to prove circumstantially that appellant had put the gun under the doormat while fleeing from the officers. In addition to presenting testimony from the officers, the government called as a witness Kelly Gonzales, a tenant of Apartment 87. She reported that she left the apartment between noon and 1 p.m. on the day of the incident, that she stood on the mat to lock the door, and that the gun was not there at that time. She also testified that neither she nor her mother, with whom she lived, owned a gun.

In seeking to discredit the officers' account of what occurred, the defendant presented the testimony of an architect, John Cunningham, who had prepared several diagrams depicting the layout of the first floor of 10 Lattimore Court. Cunningham testified about the field of view from various points in the lobby between the front entrance and the back exit. By means of shading in different colors, one of his illustrations showed which parts of the floor could be seen fully by someone standing just inside the entry door and which areas had restricted visibility because of a stairwell located directly in front of the entrance.³ Appellant's girlfriend, Marissa Wallace, also testified, and stated that she had never seen appellant with a gun.

A jury found appellant guilty, and the district court sentenced him to a term of 180 months under the ACCA, finding that he had the requisite three prior convictions for violent felonies or serious drug offenses. See 18 U.S.C. § 924(e)(1). On appeal, he claims that the evidence presented at trial was insufficient to support the jury's finding of guilt and that the district court gave an erroneous instruction on intent. He also challenges his sentencing as a career offender, raising a number of arguments about the district court's use of his prior convictions. Foremost among those claims is the contention that the court violated his due process and fair trial rights by considering a 1992 juvenile adjudication. He also claims that the court erred by: (1) failing to submit any of his qualifying convictions to a jury for proof beyond a reasonable doubt; (2) double-counting one of his prior convictions by using it both as the prerequisite offense for the felon-in-possession charge and as one of the three ACCA predicates; and (3) classifying a 1995 drug conviction as a "serious drug offense" within the meaning of the ACCA.

We begin with the sufficiency and instructional challenges, and then turn to appellant's claims of sentencing error.

II.

Appellant argues that the jury's verdict must be vacated because the evidence presented at trial failed to connect him to the gun and ammunition. He points out that no one saw him with the firearm, which was found in a public place, and there were no fingerprints or other evidence tying him to the weapon. The case, he asserts, is "entirely circumstantial."

We review a defendant's challenge to the sufficiency of the evidence de novo. United States v. Gobbi, 471 F.3d 302, 308 (1st Cir.2006). In examining the record, we consider whether the "`total evidence, with all reasonable inferences made in the light most favorable to the government, [is] such that a rational trier of fact could have found guilt beyond a reasonable doubt.'" Id. at 308-09 (quoting United States v. Loder, 23 F.3d 586, 590 (1st Cir.1994)) (alteration in original). Circumstantial, as well as direct evidence, is properly taken into account, and we must uphold the jury's verdict "when it is `supported by a plausible rendition of the record.'" Id. at 309 (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992)).

The evidence here, although "entirely circumstantial," amply supported the jury's conclusion that appellant possessed and then placed the firearm under the mat in front of Apartment 87. Officer Sullivan testified that he followed appellant into the apartment building after the officers saw appellant twice make movements toward his waist and then run from the officers — conduct that was unusual for him. The jurors reasonably could credit the officer's testimony that he could see appellant rise from a crouched position near where the gun was found, notwithstanding the architect's testimony that some locations within the lobby had obstructed views. The architect also testified that the visibility was clear, from floor to ceiling, in other locations. From the facts before them, the jurors reasonably could conclude that appellant fled from the officers because he was carrying the gun and that, when Sullivan saw him in the apartment hallway, appellant was just standing up after hiding the gun under the mat.

Appellant attempts to discredit the prosecution's version of the facts by pointing to the lack of fingerprints on the gun and by suggesting that Sullivan's testimony should not have been credited. If, as Sullivan testified, the officer had been close in pursuit when appellant entered the apartment building, appellant argues that he would not have had time to put anything under the mat. Alternatively, appellant asserts, if the officer's testimony about being close is believed, a question arises as to why Sullivan did not see him put the gun under the mat. Appellant further attempts to bolster his claim by distinguishing the circumstances here from cases in which defendants were found either in actual possession of, or near, a gun or illegal drugs.

While direct evidence of possession unquestionably would be more potent, the jury was entitled to rely on plausible inferences. See, e.g., United States v. Berrios, 132 F.3d 834, 843 (1st Cir.1998) ("The fact that the entire case against [the defendant] is based on circumstantial, rather than direct, evidence has no bearing on sufficiency; both types of evidence provide an adequate basis for conviction."); United States v. Spinney, 65 F.3d 231, 234 (1st Cir.1995) ("Reliance on indirect, as opposed to direct, evidence in a criminal case is both permissible and commonplace. . . . [W]hen a jury draws inferences from circumstantial evidence, a reviewing court should refrain from second-guessing the ensuing conclusions as long as (1) the inferences derive support from a plausible rendition of the record, and (2) the conclusions flow rationally from those inferences."). The absence of any fingerprints on the gun is not inconsistent with a finding of guilt, and Sullivan's testimony about his timing and location was fully consistent with both the architect's testimony and the physical evidence.⁴ Given appellant's movements, his flight, his proximity to the weapon's location, the testimony that the gun was not under the mat earlier in the day, and the...