United States v. Martinez

• Decision Date: 06 August 2014
• Docket Number: No. 12–2219.,12–2219.
• Citation: 762 F.3d 127
• Parties: UNITED STATES of America, Appellee, v. Raymond MARTINEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

762 F.3d 127

UNITED STATES of America, Appellee,

v.Raymond MARTINEZ, Defendant, Appellant.

No. 12–2219.

United States Court of Appeals,First Circuit.

Aug. 6, 2014.

William W. Fick, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before HOWARD and KAYATTA, Circuit Judges, and McCAFFERTY,^* District Judge.

KAYATTA, Circuit Judge.

After the district court denied his motion to suppress evidence of a firearm found on his person, appellant Raymond Martinez entered a conditional guilty plea on one count of possessing a firearm as a convicted felon, see18 U.S.C. § 922(g)(1), reserving the right to appeal the suppression ruling. SeeFed.R.Crim.P. 11(a)(2). He now appeals that ruling, as well as the district court's application of a six-level sentence enhancement based on a finding that his prior Massachusetts conviction for assault and battery constituted a “crime of violence” under the Sentencing Guidelines. Though we affirm the denial of the suppression motion, we vacate Martinez's sentence and remand for further proceedings.

I. Background

After holding two evidentiary hearings on Martinez's motion to suppress, the district court issued the following findings of fact, which remain largely unchallenged on appeal. On April 10, 2011, two members of the “Latin Kings” street gang were shot to death as they sat in a car in Worcester, Massachusetts. The wake for one of the victims was scheduled to take place at a church in Framingham, Massachusetts, at 4:00 PM on April 14, 2011. Framingham police officer Robert Lewis informed other officers of the wake at roll call before their 4:00 PM shift on April 14 and advised them that there was a heightened risk for gang violence in the area. The Framingham Police Department assigned Lewis, along with Detective Matthew Gutwill and other Framingham law enforcement officers, to monitor the area around the church where the wake was held.

Soon after the wake concluded, Gutwill drove by nearby Roosevelt Park and observed a number of cars and people gathering there. The park was located close to an address where police believed that people who had attended the wake would congregate. Gutwill did not recognize as gang members any of the people he saw there. He did, however, relay his observation of the gathering to a dispatcher over the police radio, expressing concern that “something wasn't right.”

Upon hearing of Gutwill's message to the dispatcher, Lewis drove to the park. There, he saw two marked police cars approach the park and a third, silver car leave abruptly, with its tires screeching. After the car ran a red light, ¹ Lewis pulled it over, notified dispatch that he was conducting a traffic stop, and requested backup.

When he approached the car, Lewis observed four people inside. He recognized the front-seat passenger as Raymond Martinez, the appellant, whom he had met before and knew to be a member of the “Bloods” street gang. Lewis also knew that Martinez had previously been charged with assault and battery and dangerous weapons offenses. Consequently, through the open, driver's-side window, Lewis instructed the car's occupants to keep their hands where he could see them. The backseat passengers put their hands on the backs of the headrests of the seats in front of them, and Martinez put his hands on the dashboard.

Lewis asked the driver for his license and registration. The driver said he had neither, but identified himself as Michael Tisme. Lewis recognized that name as belonging to a member of the “Bloods” gang. After being told Tisme's name, Lewis told Tisme that he smelled marijuana in the car. He then ordered Tisme to exit the vehicle to be placed under arrest.

At that time, Lewis saw Martinez pull his hands off the dashboard and reach toward his waist. Lewis yelled at Martinez to put his hands back on the dashboard, which he did. Lewis then conducted a pat search of Tisme and found a bag of marijuana in his pocket.

At this point, Gutwill arrived on the scene. Lewis warned Gutwill that Martinez appeared nervous and had been pulling his hands toward his waist, and asked Gutwill to watch Martinez. In the course of doing so, Gutwill observed Martinez again moving his hands off the dashboard toward his waist. All parties now agree that Martinez was moving his hands to his waist to reach a phone, and that, at some point during the stop, he managed to place a twelve-second call while in the car with the other two passengers. The evidence is conflicting as to whether any officer actually saw the phone. The district court found that they did not.

Shortly thereafter, a third law enforcement officer, Sergeant Kathryn Esposito, arrived and heard Gutwill repeatedly ordering Martinez to keep his hands on the dashboard. Gutwill instructed Esposito to remove Martinez from the car because Martinez was reaching for his waistband. Esposito removed Martinez from the car, walked him to Gutwill's nearby vehicle, and ordered him to place his hands on the vehicle and spread his feet. She then asked if he had any weapons on him. When an answer was not forthcoming, she conducted a pat-frisk of him. As she started to search his waistband, Esposito noticed a hard object that felt like the butt of a gun. She asked Martinez, “What's this?,” and when he again failed to respond, she told him not to move and then pulled the object—a loaded firearm—from his waistband. The officers then placed Tisme and Martinez in handcuffs.

Martinez was subsequently indicted for being a felon in possession of a firearm that had traveled in interstate commerce. See18 U.S.C. § 922(g)(1). He moved to suppress the firearm on the ground that the officers had no reasonable suspicion that he was armed and dangerous when they frisked him. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When the district court denied that motion, Martinez entered a guilty plea conditioned on the right to appeal that ruling.

After Martinez's guilty plea, the Probation Office prepared a pre-sentence report (“PSR”) in which it recommended a base offense level of 20. The recommendation rested on the conclusion that Martinez's 2010 Massachusetts conviction for assault and battery, seeMass. Gen. Laws ch. 265, § 13A, qualified as a “crime of violence” under the Sentencing Guidelines, see U.S.S.G. §§ 2K2.1(a)(4), 4B1.2(a). After Martinez timely objected to that conclusion, the district court held a hearing at which it found that, in the process of pleading guilty to the assault and battery charge in state court, Martinez had admitted facts that made clear that his conviction was for intentional, harmful assault and battery. The district court therefore concluded that the offense constituted a crime of violence, adopted the PSR's suggested base offense level of 20, and found that Martinez's Guidelines Sentencing Range was 70–87 months, rather than the 37–46 month range that would have governed had the “crime of violence” determination gone the other way. The district court then sentenced Martinez to 70 months in prison.

Martinez appeals both the denial of his suppression motion and his 70–month sentence. We have jurisdiction under 28 U.S.C. § 1291.

II. Analysis

We address the suppression motion first. Finding that it was properly denied, we then discuss Martinez's sentence.

A. The district court did not err in concluding that the search of Martinez was supported by reasonable suspicion.

Martinez attacks the district court's denial of his motion to suppress on both factual and legal grounds. First, he argues that the district court clearly erred by crediting the officers' testimony that they genuinely believed that Martinez's hand movements were furtive and suspicious. Second, he contends that even if the district court did not clearly err in its fact finding, the totality of the circumstances simply did not give rise to the sort of particularized suspicion necessary to support a pat-frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

1. The district court's finding that the officers believed that Martinez had reached for a gun was not clearly erroneous.

We begin with Martinez's fact-based challenge. On review of a motion to suppress, we review the district court's findings of fact and credibility determinations only for clear error. United States v. Brake, 666 F.3d 800, 804 (1st Cir.2011). This deference “reflects our awareness that the trial judge, who hears the testimony, observes the witnesses' demeanor [,] and evaluates the facts first hand, sits in the best position to determine what actually happened.” United States v. Young, 105 F.3d 1, 5 (1st Cir.1997); see also United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994). Reversal is appropriate “only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made.” Brake, 666 F.3d at 804 (internal quotation marks omitted).

The record is uncontested that, contrary to instructions from the officers, Martinez repeatedly moved his hands to his waist. It is also clear that Martinez managed to place a twelve-second telephone call during the arrest. Beyond that, the record presents a classic swearing contest: Martinez and another individual who was in the car, Trinity Font, swear that the officers noticed that it was a phone for which Martinez was reaching; the officers swear they did not. Given the tense circumstance, which we discuss in more detail below, either story is plausible. And that is certainly enough to accept the district court's finding under the applicable standard of review. See, e.g., Zapata, 18 F.3d at 975. We therefore proceed on the basis of the facts as the district court found them.

2. The search of Martinez was supported by reasonable suspicion of criminal activity.

Martinez also contends that, even taking as given the district court's factual findings, the search was...