USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1697

UNITED STATES,

Appellee,

v.

JONATHAN A. GRANT, II,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Boudin and Lynch, Circuit Judges.

______________

_____________________

Miriam Conrad, Federal Defender Office, for appellant.

_____________
Sheila W. Sawyer,
_________________
whom

Assistant United

Donald K. Stern, United

_______________

appellee.

States Attorney,

States Attorney, was

with

on brief for

____________________

May 30, 1997

____________________

TORRUELLA,
TORRUELLA,

Chief
Judge.
Chief
Judge.
_____________

On

February

28,

1996,

Defendant-Appellant

Jonathan

Grant

unconditional plea of guilty to

("Grant")

entered

four counts of being a felon

an

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.

Grant with possessing

three firearms

1995, at Fairhaven, . . .

with possessing

Fairhaven,

. . . Massachusetts."

possessing

two

Westport,

. .

firearms

"[o]n or

Massachusetts."

two firearms "[o]n

"[o]n

. Massachusetts."

Count

One charged

about April

Count Two charged him

or about April 26,

Count Three

or about

Count

22,

April

1995, at

charged him with

26,

Four charged

1995,

at

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

finding was erroneous, the

Four, to run

ground, Grant

that Grant's

dangerous

to run

years, ten years for Counts

concurrently, and five

consecutively.

As to the

contends that the district

earlier

the ACC

district court imposed an alternative

sentence of a total of fifteen

Two, and Three,

determined on appeal that

years for

Count

district court's

first

court erroneously held

Massachusetts conviction

weapon constituted

a violent

-2-

One,

for

felony under

carrying

the ACCA.

This allegedly

erroneous finding

necessary to deem

district court

Grant an

erred, on

his offense level

abused

on

next contends that

U.S.S.G.

disputed

facts

Jeopardy rights

in

the

and

to conduct an

Pre-Sentencing

that the district

by imposing

the

in enhancing

2K2.1(b)(5)

denied his request

Finally, Grant argues

his Double

third conviction

its alternative grounds,

its discretion when it

Report ("PSR").

Grant

four levels under

evidentiary hearing

violated

ACC.

provided the

court

a consecutive

sentence on Count Four.

third

claims

court's

lack

Because we find that Grant's

merit,

alternative

and therefore

sentence, we

need

affirm

not

second and

the

district

reach Grant's

ACC

argument.

BACKGROUND
BACKGROUND

portions

In

presenting the

facts, we

of

the

well

transcript.

PSR,

as

as

consult

the

the uncontested

sentencing

United States v. Lagasse, 87 F.3d 18,

______________
_______

hearing

20 (1st Cir.

1996).

Michael Rivera ("Rivera") agreed to buy guns for Grant,

in return for

$50 for each gun purchased.

Grant's

behalf,

a total

dealers

in Massachusetts.

of

thirteen

Rivera turned

Rivera purchased, on

guns from

licensed

gun

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.

A federal Alcohol, Tobacco, and Firearms ("ATF") agent,

who

had received

tip about

dealer, interviewed Rivera

the

on May

purchases from

11, 1995.

licensed

Rivera agreed

to

-3-

cooperate with federal

agents and, on

June 2, 1995,

introduced

Grant to an undercover agent.

conversation

five fully

with Rivera

automatic

bulletproof

Grant indicated in a tape recorded

that he

was interested

Tec-9 firearms

vests, and a

with

silencer for

in purchasing

attached

silencers,

a .40-caliber

Smith and

Wesson pistol that Rivera had purchased for him earlier.

of

the

sting

operation,

Rivera

government agent to purchase

made

arrangements

these items for Grant.

was arrested by ATF agents at

As part

with

the

When Grant

the sham sale, he was carrying the

.40-caliber firearm and $3,000 in cash.

DISCUSSION
DISCUSSION

I.
I.

Sentence enhancement
Sentence enhancement

Under U.S.S.G.

2K2.1(b)(5),

impose a four-level enhancement

the district court is to

[i]f

the

defendant

firearm

or

another

felony

transferred

used or

ammunition

any

in

offense;

possessed
connection

or

firearm or

with

possessed

or

ammunition with

knowledge, intent, or reason to

it would be used

any

or possessed in

believe that
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.
A.

Failure to hold an evidentiary hearing

Failure to hold an evidentiary hearing

-4-

We

review

evidentiary hearing

the district

for abuse of

court's

failure

discretion.

to hold

an

United States v.
______________

Jim nez Mart nez, 83 F.3d 488, 498 (1st Cir. 1996).
________________

Grant contested some of the facts contained in the PSR,

specifically

facts

derived

from

an

testimony regarding statements allegedly

were not contained

in Rivera's

ATF

agent's

grand

jury

made by Rivera but that

grand jury testimony

or in

his

written statement to the

purpose of

ATF.

Grant's firearms

These statements assert

purchases was

sold drugs for defendant in the

at 25.

In the

hearing into

to "arm

proceedings below, Grant

the factual basis

probation

Rivera's

sought an

for the agent's

department and

written

persons who

greater New Bedford area."

were not supported by Rivera's own testimony.

the

that the

the

statement and

testimony;1

neither

source,

Grant

purpose in

purchasing

the

weapons.

evidentiary

statements that

Grant proffered to

sentencing

cited

court copies

to

Rivera's grand

argued,

indicates

Grant

argued

that

Part of Rivera's testimony consisted of the following:

Q.

Did he

tell you what he

with the guns?

intended to do

of

jury

Grant's

____________________

PSR

the

A.

Yes.

I think he was -- at one point, he

mentioned he was

going to get rid of them to

his family members and to some friends.

Q.

Were

these

individuals who

sold drugs

with and for Grant?

A.

Yes,

the ones

that I

know of

mentioned.

Grand Jury Testimony of Michael Rivera at 9.

-5-

that he

"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

Grant's

knowledge

firearms.

Grant

Rivera's

testimony

district court

or intent

asserts

to credit them

regarding

that neither

displayed

in determining

the future

use

of the

Rivera's statement

sufficient knowledge

of

nor

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

claims

that the

rationale of

this court's decision

Mart nez applies to

________

494-95 (finding

proffer

v. Jim nez
_______

See Jim nez Mart nez,

___ ________________

83 F.3d at

reliability concerns after the

contesting the reliability

regarding the

just as

not share

the

defendant made a

of an informant's statements

defendant's statements because

the informant did

that,

his case.

in United States
_____________

the defendant

a common language).

defendant's uncontested

Grant

proffer in

and

argues

Jim nez
_______

Mart nez sufficiently called into question the reliability of the

________

informant's

statements,

sufficiently

called

testimony.

The argument

the

ATF

into question

fails.

agent's

by

statements

Rivera's

There is

were

statements and

no "inconsistency"

between the ATF agent's statements and Rivera's written statement

-6-

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

the

end of his grand

engaged

in ongoing

Rivera.

jury testimony, Rivera

discussions

with the

Moreover, at

stated that he was

ATF that

subjects beyond those to which he had testified.

encompassed

More fundamentally, Grant made no proffer regarding any

possible,

let alone relevant or material, evidence that would be

brought forward at an

believe

that

any

evidentiary hearing.

benefit

would

derive

evidentiary hearing, the district court

Without a

from

reason to

convening

an

surely did not abuse its

discretion in refusing Grant's request.

B.
B.

Failure to resolve factual disputes

Failure to resolve factual disputes

Prior to sentencing, Grant objected to various facts in

the PSR.

Grant

argues that the district court

with Federal Rule of

failed to comply

Criminal Procedure 32(c)(1), which requires

a sentencing court that is presented with a factual dispute to

make either a finding

determination

that

on the allegation or a
no finding

because the controverted

taken into
sentencing.

account in,
A

written

is necessary

matter will not

or will
record

be

not affect,
of

these

findings and determinations must

to any

copy of

be appended

the presentence report

made

available to the Bureau of Prisons.

Fed. R. Crim.

Rule

32(c)(1)

P. 32(c)(1).

bind the

United States v.
______________

(finding

fails

We have held

sentencing

Bruckman,
________

that the strictures of

court to

874 F.2d

a violation of Rule 32[(c)(1)]

57,

compliance.

64 (1st

Cir.

See
___

1989)

when the district court

to make or append such findings); United States v. Hanono_____________

_______

-7-

Surujun, 914 F.2d 15, 18 (1st Cir. 1990) (collecting cases).

_______

purposes

of

defendant's

accurate

this

rule

are

due process rights to

(1)

to

be sentenced on

protect

"a

the basis of

information"; and (2) to provide "a clear record of the

disposition

of controverted

which, in turn, reduces

incomplete information."

With

regard

facts

in the

presentence

report,

the likelihood that subsequent appellate

or administrative decisions

however,

two-fold:

The

will be

made based

on improper

or

Bruckman, 874 F.2d at 63-64.

________

to

the

first

concern,

we

have

held,

that "a court may make implicit findings with regard to

sentencing matters."

United States v. Ovalle-M rquez,

______________
______________

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

questions

factual

recommendations at the

omitted)).

by

accepting

the

government's

sentencing hearing." (internal quotations

During the sentencing hearing, the court gave each

party the opportunity to discuss the basis for relying on the ATF

agent's

Rivera's

contested

was

testimony

own words

regarding

did not

what

Rivera

include the

had

told

him

when

same statements.

The

statements concerned Grant's alleged knowledge that he

giving the

firearms to

connection with a felony.

individuals who

would use

After both parties were heard

them in

on the

statements of the ATF agent and the informant, the district court

ruled that Grant "had reason to believe that the weapons would be

used

or possessed

in connection

with another

felony offense."

Transcript of Sentencing Hearing

at 26.

The court

indicated in

-8-

writing,

as part of the judgment, that it "adopt[ed] the factual

findings

. . .

virtually

F.2d

in the presentence

indistinguishable

612, 621 (1st Cir.

identical, facts, that the

report."

We

find this case

from United States v.

______________

1993), which found,

Savoie, 985
______

on similar, if not

sentencing court had implicitly ruled

that the contested statements

Savoie, the district court's

______

PSR

ruling and written adoption

amounts "necessarily [to

disputed

matters of

were sufficiently reliable.

a] finding against

fact," id.,
___

that are

Under

of the

[Grant] on all

the subject

of this

appeal.

Moreover,

although Grant objected

to certain facts in

the PSR that stated he had the requisite knowledge, Grant did not

provide

the sentencing court with

assertions that he was in

Bedford

area and

that he

friends and family members

operation.

Consequently,

the contested facts.

evidence to rebut the factual

charge of a drug operation in

intended to

provide the

firearms to

in furtherance of their work

the court was justified in

the New

in that

relying on

See United States v. Mir, 919 F.2d 940, 943

___ _____________

(5th Cir. 1990) (explaining

facts

contained in

evidence

that, although defendant objected to

PSR, his

to refute those facts

adopt the facts

cited in
________

the

failure

to present

left the district

contained in the

United States
_____________

___

court free to

PSR without further

v. Morillo, 8
_______

F.3d 864,

rebuttal

inquiry),

873 (1st

Cir.

1993); United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
_____________
____

Having

these

concluded

that the

court

implicitly resolved

factual disputes, we turn to the second concern implicated

-9-

by Rule 32(c)(1), namely that a court's determination be appended

to

the PSR.

Although the district court implicitly resolved the

factual

disputes,

mandate

that the

it

failed

to comply

sentencing court

determination regarding

with

append to

Rule

32(c)(1)'s

the PSR

the contested facts or

either a

a statement that

the contested facts were not considered in reaching the sentence.

Consequently,

append

that,

we remand to the

its determination.

where the

findings,

sentencing

sentencing court to

Cruz,
____

981

F.2d at

court merely

fails

allow it to

619 (explaining

to append

its

remanding without resentencing is appropriate); United

______

States
______

v. Santana-Camacho,
_______________

(finding "technical"

931 F.2d

966, 969

failure to append

(1st Cir.

findings to PSR

1991)

did not

entitle appellant to resentencing).

C.
C.

Support for the enhancement

Support for the enhancement

We review the sentencing

sentencing guidelines de novo

_______

must be supported by

court's interpretation of the

and its factual conclusions, which

a preponderance of the evidence,

error.

United States
_____________

1997).

Having concluded that the district court was entitled to

rely

on all

imposition

of the

of

the

v. Ruiz,
____

105 F.3d 1492,

for clear

facts provided

four-level

in the

enhancement

1504 (1st

PSR, we

under

Cir.

review its

U.S.S.G.

2K2.1(b)(5) in light of the facts contained in the PSR.

The findings

the

four-level

on which the sentencing

enhancement

were

court relied for

supported

statements in the

PSR and

amply justify the

United States v.
______________

Van, 87
___

F.3d 1,

3 (1st

by

the

factual

enhancement.

Cir. 1996)

See
___

("In the

-10-

absence

sustained

of

legal error,

so long

as the

the

district court's

information upon

ruling

which it

will be

relied is

sufficient

to support

standard.").

used

According to

friends

indicated to

that he

and

family

findings under

a clearly

the PSR, Grant was a

members

his "gopher" in the

to

erroneous

drug dealer who

distribute

drugs.

He

firearms transactions, Rivera,

needed the firearms to protect him and his associates in

connection

the

the

with the drug

sentencing

transferred the

court's

operation.

finding

firearms "with

These

that

facts alone support

Grant

possessed

knowledge, intent, or

or

reason to

believe that [they] would be used or possessed in connection with

another felony."

II.
II.

U.S.S.G.

2K2.1(b)(5).

We find no error here.

Double Jeopardy challenge

Double Jeopardy challenge

The Double

person for the

Jeopardy Clause

states:

same offense be twice put in

"[N]or

shall any

jeopardy of life or

limb."

U.S. Const. amend. V.

In the context

Double

Jeopardy Clause

a sentencing

multiple

bars

punishments for

the

of sentencing, the

court from

same offense.

United States, 116 S. Ct. 1241, 1245 (1996).

_____________

the

imposition of

amounted to

government

the

consecutive

same

responds

offense

that

indictment.

permitted

plea

It

of

argues

Grant contends that

that

violates this

principle.

The

waived any

to

in the

v.

four counts

Grant

guilty

See Rutledge
___ ________

sentences for

indictment on Double Jeopardy grounds

unconditional

imposing

to

the

by his plea agreement

and

all

four

alternative

challenge

counts

that if

in

the

Grant

is

to pursue a Double Jeopardy challenge to his sentence,

-11-

to prevail he must establish that the felon-in-possession charges

in the indictment were facially multiplicitous.

We

caselaw

reject

the

establishes

circumstances

arising out

mount a

government's

that

defendant

Double Jeopardy

of a conviction

initial argument.

to which

may

under

challenge to

he pled

The

certain

a sentence

guilty.

United
______

States v. Broce, 488 U.S. 563, 576 (1989); Menna v. New York, 423
______
_____
_____
________

U.S. 61, 63

n.2 (1975)

(per curiam); Blackledge

v. Perry,

417

__________

U.S.

21 (1974).

The

agreement in addition

government's

to the

focus

_____

here

plea itself does

on

the

not advance

plea

the

argument or provide an exception to the general principle.

The

Grant must

government's

alternative

show that the indictment

argument

is

correct.

was facially multiplicitous

to prevail on his Double Jeopardy challenge.

When a criminal defendant

only

that

conviction,

he committed

but

against him.'"

also

the

pleads guilty, he admits not

factual

"'that

predicate underlying

he committed

the

crime

his

charged

Broce, 488 U.S. at 569 (quoting North Carolina v.

_____
______________

Alford, 400 U.S. 25, 32 (1970)).

______

guilty to a single

"Just as a defendant who pleads

count admits guilt to the

specified offense,

so

too does

facial

a defendant

allegations

who pleads

of distinct

offenses

committed two separate offenses."

At

the

plea hearing,

guilty to two

concede

that he

has

Id. at 570.
___

the

district

court repeatedly

directed Grant's attention to

the fact that he had

with four different

See Transcript of
___

crimes.

counts with

-12-

been charged

Change of

Plea

Hearing, Feb. 28, 1996, at 6, 11.

After being so apprised, Grant

entered an unconditional plea on each count.

facts

in the indictment, he

constitute

the

same

Having conceded the

cannot now contend

offense

unless

that the counts

they

are

facially

multiplicitous.

Here,

the

of

distinct

consisted

possession

three

facial

allegations

offenses,

of

charging

the

four

Grant

counts

with

the

of eleven different weapons in two separate cities on

different dates.

While it

is true

that Counts

Two and

Three charge Grant with possession of certain weapons on the same

day, the

two counts

different

cities.

two

Glock

allege possession

Count Two alleges

semi-automatic

pistols,

of different

weapons in

possession in Fairhaven of

and

Count

Three

alleges

possession

(with

in Westport

a different

Glocks) and a Ruger

constituted

an

of another

serial number

Glock

semi-automatic pistol

from either

semi-automatic pistol.

admission

to

each

of

Grant's

the

predicates underlying the separate counts and,

plea "conceded guilt

U.S. at

571.

to [four] separate

of the

two other

guilty plea

distinct

factual

consequently, the

offenses."

Broce,
_____

488

The four counts being distinct from one another in

time, place, or both, and weapon possessed, they are not facially

multiplicitous.

Grant's efforts to dodge

First, he contends

colloquy

establish

that, because

where Rivera

this conclusion are two-fold.

neither the PSR

turned

the

nor the

firearms over

plea

to

Grant, we must disregard the distinction between the reference in

-13-

Counts

One

Fairhaven

and

and

Two

the

to

possession

reference

in

of

different

Counts

Three

firearms in

and

Four

to

possession of other firearms in Westport.

Because Grant's guilty

plea

his possession

to

different

all four

counts conceded

firearms took place

that

in the locations

of the

alleged in each

count, however, no such showing was required.

Grant's second

argument is

that the sentencing

court

found that the possession

course of conduct.

in the

Accordingly,

four separate

conduct,

purposes.

making

of these weapons amounted to

counts

them

the

Grant reasons, the acts alleged

constitute this

same

offense

court made

is belied by the record.

Double

of

Jeopardy

First, Grant's claim

a finding that

these firearms constituted a single

single course

for

Again, Grant's argument fails.

that the district

a single

his possession

scheme or course of

of

conduct

Second, the four separate counts simply

do not allege simultaneous possession.

The

two

multiple

relies, United States

_____________

v. Mullins,
_______

1983), and United States

_____________

Cir. 1982), are

possession

cases

on

698 F.2d 686,

which

Grant

687 (4th

Cir.

v. Frankenberry, 696 F.2d 239,

____________

different from his situation

245 (3d

in one dispositive

way.

In

those two

convicted of the

cases,

multiple possession counts.

Grant pled guilty to each

the

the defendants

factual predicates

were

tried on

Here, in contrast,

separate offense and thereby

underlying the

and

offense.

He

admitted

cannot now

argue that a factual issue remains regarding the location or time

-14-

of

his possession of these

different firearms.

See Broce, 488

___ _____

U.S. at 569-71.

Based

on

the

foregoing,

Jeopardy challenge and affirm

a five

year sentence on Count

concurrent

ten year

we

reject

Grant's

Double

the district court's imposition of

Four to run consecutively

sentences imposed

on Counts One,

to the

Two, and

Three.

CONCLUSION
CONCLUSION

For the

and

remand
remand
______

to the

foregoing reasons, we affirm

affirm
______

district

court

findings regarding contested facts.

to append

Grant's sentence

to

the PSR

its

-15-