United States v. Austin

• Decision Date: 12 March 2021
• Docket Number: No. 19-2257,19-2257
• Citation: 991 F.3d 51
• Parties: UNITED STATES, Appellee, v. Damon AUSTIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

991 F.3d 51

UNITED STATES, Appellee,

v.Damon AUSTIN, Defendant, Appellant.

No. 19-2257

United States Court of Appeals, First Circuit.

March 12, 2021

Andrew Levchuk, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

Before Lynch and Selya, Circuit Judges, and Katzmann,^* Judge.

KATZMANN, Judge.

Defendant-appellant Damon Austin pleaded guilty to two counts of unlawful firearm possession by a prohibited person in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and was sentenced to imprisonment. Following Austin's plea, the Supreme Court issued a decision in Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which held that a conviction for unlawful possession of a firearm requires the government to prove that the defendant knew he had the relevant status prohibiting possession. Austin alleges on appeal that, under Rehaif, the district court committed plain error by failing to inform him at his plea colloquy that conviction for violation of 18 U.S.C. §§ 922(g) and 924(a)(2) required the government to prove that he knew he was prohibited from possessing firearms. Separately, Austin alleges that the search warrant issued for his residence was unsupported by probable cause, and that the district court erred in denying without an evidentiary hearing his motion to suppress evidence resulting from the execution of that warrant.

We determine that the search warrant issued for Austin's residence was supported by probable cause and affirm the district court's denial of Austin's motion to suppress. We also conclude, in accord with our recent decisions in United States v. Patrone, 985 F.3d 81 (1st Cir. 2021), and United States v. Farmer, 988 F.3d 55 (1st Cir. 2021), that the district court did not plainly err by accepting Austin's guilty plea.

I.

Because this appeal follows a guilty plea, we draw the facts "from the change-of-plea colloquy, the Presentence Report (PSR), and the transcript of the sentencing hearing." United States v. Rossignol, 780 F.3d 475, 476 (1st Cir. 2015) (citing United States v. Cintrón–Echautegui, 604 F.3d 1, 2 (1st Cir. 2010) ). Below, Austin stipulated as part of his plea agreement that if the case proceeded to trial, the government would introduce evidence of specified facts that would prove the elements of the offenses beyond a reasonable doubt.

On April 14, 2018, Somersworth, New Hampshire law enforcement officials were notified of an altercation involving a firearm. Responding officers, among them Officer Anthony DeFrancesco, were informed that Austin had threatened Christopher Brown with a handgun outside Brown's residence. Brown informed law enforcement that Austin was his cocaine supplier and had recently been staying at Brown's home. Brown's wife had, on the morning of April 14, 2018, requested that Austin leave the residence. Austin initially refused, but at some point left Brown's home. He later returned in a vehicle driven by Tanya Phillips and engaged in an argument with Brown, during which Austin threatened Brown with a loaded firearm before driving away. Brown informed the responding officers that he recognized the firearm as a Glock which Austin had previously acquired in exchange for crack cocaine.

Officers Joseph Geary and Alexander Mulcahey located Phillips' vehicle, and conducted a felony traffic stop. Austin and Phillips were removed from the vehicle, and Officer Geary located a loaded magazine on Austin's person. Austin advised the officers that there was a firearm in the front seat of the vehicle, which Officer DeFrancesco, who had arrived during the arrest process, observed in plain view and retrieved. A search of Austin's person incident to arrest located two plastic containers of hash butane oil. Prior to being removed from the scene, Austin revealed in a post-Miranda statement that he was a convicted felon. During booking, Austin further stated that he was a member of the Mattapan Avenue Crips street gang.

After the arrests of Phillips and Austin, Officer DeFrancesco prepared and submitted an affidavit in support of a search warrant application for Phillips' and Austin's shared residence. He swore to the foregoing facts, as well as to the fact that the firearm located in Phillips' vehicle was determined to be stolen. Officer DeFrancesco further stated that Brown had informed him that Austin (1) sold crack, cocaine and marijuana; (2) made crack at the residence he shared with Phillips; (3) recently sold Brown cocaine at the residence; (4) within the prior two days had possessed two ounces of cocaine and two ounces of crack at the residence; and (5) had multiple firearms stored at the residence. In particular, Officer DeFrancesco affirmed that Brown described two black safes located at the residence, one in the dining room and one in the bedroom, which Brown claimed Austin used to store guns, cocaine, and money.

Officer DeFrancesco's affidavit also recounted statements made by Phillips after she knowingly waived her Miranda rights. Among them, Officer DeFrancesco testified that Phillips confirmed the existence of two safes in the residence she shared with Austin: one in the living room which belonged to Austin, and one in the bedroom in which she stored paperwork. Finally, the affidavit recounted Austin's stated membership in the Mattapan Avenue Crips gang, and his previous felony conviction for assault and battery.

On the strength of Officer DeFrancesco's affidavit, the search warrant was granted. The search took place on April 14, 2018, the same day as Austin's arrest, and resulted in the seizure of seven additional firearms, six of which had traveled in interstate or foreign commerce. Austin was subsequently indicted for two counts of possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) : the first for possession of the firearm retrieved from the front seat of Phillips' vehicle, and the second for possession of six firearms retrieved during the execution of the April 14 search warrant.

On December 31, 2018, Austin moved to suppress the evidence obtained during the execution of the April 14 search warrant, alleging that the affidavit was not supported by probable cause. Austin specifically argued that Officer DeFrancesco failed to "demonstrate that Brown was a reliable informant" and to "corroborate his basis of knowledge for drugs and firearms being at the ... residence." In so arguing, Austin relied on case law regarding the verification of tips from confidential informants. See, e.g., United States v. Ramírez-Rivera, 800 F.3d 1, 27 (1st Cir. 2015), cert denied, 577 U.S. 1108, 136 S. Ct. 917, 193 L.Ed.2d 800 (2016), abrogated on other grounds by United States v. Leoner-Aguirre, 939 F.3d 310 (1st Cir. 2019). Austin further contended that Officer DeFrancesco omitted contradictory information from his affidavit.

The district court declined to hold an evidentiary hearing on the alleged omissions in Officer DeFrancesco's affidavit and denied Austin's motion to suppress, finding that the warrant was supported by probable cause. On January 31, 2019, Austin pleaded guilty to both counts of the indictment. The Supreme Court issued its decision in Rehaif on June 21, 2019. On November 19, 2019 (with judgment entering on November 25, 2019), the district court sentenced Austin to a term of imprisonment of eighty-four months, to be served concurrently on both counts, and to be followed by three years on supervised release. Austin appealed.¹

II.

On appeal, Austin contends that the district court erred in denying his motion to suppress because the search warrant was not supported by probable cause. As noted above, Austin argues that Brown was in essence a confidential informant, and that the information he provided was therefore insufficient basis for a search warrant without further corroboration. In so doing, Austin rejects the characterization of Brown as a victim or percipient witness and disputes the corroborative sufficiency of Phillips' admissions in custody.

We review de novo the district court's conclusion that the facts of the search warrant affidavit constitute probable cause. United States v. Greenburg, 410 F.3d 63, 66 (1st Cir. 2005) (quoting United States v. Barnard, 299 F.3d 90, 92–93 (1st Cir. 2002) ). Our review is limited to the "facts and supported opinions" set out within the four corners of the affidavit. United States v. Joubert, 778 F.3d 247, 252 (1st Cir. 2015) ; United States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999).

A search warrant must be supported by "probable cause to believe that (1) a crime has been committed, and (2) that enumerated evidence of the [crime] will be found at the place to be searched [.]’ " Joubert, 778 F.3d at 251 (quoting United States v. Hicks, 575 F.2d 130, 136 (1st Cir. 2009) ). Probable cause exists where there is a "fair probability that ... evidence of a crime will be found in a particular place." United States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014) (quoting Hicks, 575 F.3d at 136 ). The fair probability required is only that "on which ‘reasonable and prudent [people,] not legal technicians, act.’ " United States v. Adams, 971 F.3d 22, 32 (1st Cir. 2020) (quoting Florida v. Harris, 568 U.S. 237, 244, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (alteration in original)).

We determine, as did the district court, that Officer DeFrancesco's affidavit was sufficient support for the search warrant issued. Contrary to Austin's argument, Brown was not a confidential informant whose statements to the police demanded additional "information from which a magistrate can credit [his] credibility." United States v. Gifford, 727 F.3d 92, 99 (1st Cir. 2013) (citing Barnard, 299 F.3d at 93 (1st Cir. 2002) ). Rather, Brown was the victim of Austin's reported threat, and a percipient witness to Austin's possession of contraband at the residence he shared with Phillips. As such, Brown's ...