
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1113                                    UNITED STATES,                                      Appellee,                                          v.                                   RAYMOND J. GARY,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                             and Saris,* District Judge.                                         ______________                                _____________________               Marie T. Roebuck for appellant.               ________________               Sheldon  Whitehouse,  United   States  Attorney,  with  whom               ___________________          Gerard B.  Sullivan  and  Margaret E.  Curran,  Assistant  United          ___________________       ___________________          States Attorneys, were on brief for appellee.                                 ____________________                                   January 5, 1996                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    SARIS,  District Judge.    After his  first jury  trial                    SARIS,  District Judge.                            ______________          ended  in  deadlock,  defendant  Raymond  J.  Gary  ("Gary")  was          convicted by a second jury of possession of a firearm by a felon,          in violation of  18 U.S.C.    922(g).  He  was sentenced to  over          twenty-four  years  incarceration  as  an  armed  career criminal          pursuant to 18 U.S.C.   924(e).                    Gary  raises  six issues  on appeal:   (1)  whether the          district court  violated his Sixth Amendment  right to compulsory          process  by precluding  him from  calling a  defense witness  who          would provide exculpatory  information on direct examination  but          would assert  the Fifth Amendment with  respect to non-collateral          issues on cross-examination; (2) whether the district court erred          in finding that  this defense  witness had not  waived his  Fifth          Amendment privilege against self-incrimination  by virtue of  his          testimony at the first trial; (3) whether the government properly          sought  authorization   to  prosecute  under  the   U.S.  Justice          Department guidelines regarding  dual federal-state  prosecutions          (i.e.,  the "Petite  policy"); (4)  whether Gary  was selectively          prosecuted  on account of his  race; (5) whether  Gary received a          fair  trial  in light  of the  government's  reliance on  what he          contends was "perjured testimony  by a law enforcement official";          and (6) whether the district court misapplied U.S.S.G.   4B1.4 in                                         -2-          determining  Gary's   total  offense  level.1     We  affirm  the          conviction and sentence.                              I.  STATEMENT OF THE CASE                              I.  STATEMENT OF THE CASE                                  _____________________                    A.  FACTS                    A.  FACTS                    We set forth the evidence  in the light most  favorable          to  the verdict.  United States  v. Tuesta-Toro, 29 F.3d 771, 773                            _____________     ___________          (1st Cir. 1994), cert. denied, __ U.S. __, 115 S. Ct. 947 (1995).                           ____________                    On May 14, 1994, Gary and a friend, Eric Hopkins, spent          part  of  the  evening  going to  nightclubs.    After  midnight,          Patrolman  James  Joseph Corry  of  the  North Providence  Police          Department encountered Gary and Hopkins when they were attempting          to break into  Rhode Island  Auto Radio.   Earlier that  evening,          they  had stolen some vases  from a furniture  store elsewhere in          North  Providence.  Upon seeing  Corry, Hopkins fled  on foot and          Gary attempted to escape by car at high speed.  Gary lost control          of the vehicle, which left the  road and struck the foundation of          an adjacent  building.    Corry  caught up  to  Gary  as  he  was          attempting to exit the wrecked automobile.  Gary resisted arrest,          and the efforts of several officers were necessary to subdue him.          Once the officers successfully apprehended Gary, they conducted a          "pat-down" search for weapons.  At that time, a loaded and fully-          operable  Colt .25  caliber handgun  fell from  Gary's waistband.          Hopkins  also  was   arrested, and  a  Dickson .25  caliber semi-                                        ____________________          1  Gary also contends he did not receive a fair trial in light of          the  totality and cumulative effect of  the trial court's errors.          Since we do not find error with  respect to any of the issues, we          do not address this claim separately.                                         -3-          automatic  pistol was seized from him.  Hopkins later admitted to          possessing the firearm.                                         -4-                    B.  PROCEEDINGS BELOW                    B.  PROCEEDINGS BELOW                    Gary and  Hopkins each were initially  charged in state          court  with violations  of the  Rhode Island  General Laws.2   On          June 9,  1994,  a  federal  grand  jury  returned  an  indictment          charging  both with  possession  of  a  firearm  by  a  felon  in          violation  of 18  U.S.C.    922(g).    On  August 31,  1994,  the          government filed a notice  that, if Gary was convicted,  it would          seek  a penalty enhancement pursuant to the Armed Career Criminal          Act ("ACCA"),  18 U.S.C.    924(e)(1).   Hopkins pled  guilty, on          September 8, 1994.                    From October 13 to  17, 1994, Gary was tried by  a jury          before Judge Raymond J. Pettine.  Hopkins, who was represented by          counsel, testified on Gary's behalf and was cross-examined by the          government  concerning the  break-ins, the  circumstances  of the          arrest,  and the firearms.   The proceedings ended  in a mistrial          when the jury announced that it was unable to reach a verdict.                    Gary's case then was transferred to Judge Mary M. Lisi,          before  whom the second jury trial commenced on October 25, 1994.          When  Gary attempted to call  Hopkins to the  stand, however, the          government objected on the grounds  that Hopkins would invoke his          Fifth  Amendment right  against self-incrimination  during cross-          examination.  At  a conference and  subsequent voir dire  outside          the presence  of  the jury,  Gary  proffered that  Hopkins  would          testify that, while they were together at nightclubs on the night                                        ____________________          2  Gary  was charged with  possession of a firearm,  breaking and          entering,  conspiracy,  assault  with  a  dangerous  weapon,  and          reckless driving.                                           -5-          of  May 14, 1994, he  never saw Gary  possess a firearm  and that          they were together until  approximately ten minutes preceding the          automobile  wreck after  which Gary  was arrested.   In  the voir          dire, Hopkins asserted  his privilege against  self-incrimination          in response to questioning about the breaking and entering, which          immediately preceded his arrest.  Hopkins was then facing pending          state  breaking  and entering  charges  and  a parole  revocation          proceeding and had not yet been sentenced on the federal charge.                    Although  Hopkins  had  testified in  the  first  trial          regarding the  breaking and  entering  and had  been assisted  by          counsel at that time, the court held that his prior testimony was          not a  voluntary, knowing, and  intelligent waiver  of his  Fifth          Amendment  privilege,  particularly  because   Hopkins'  separate          counsel for  the  state proceedings  had not  been informed  that          Hopkins would  be appearing  in federal  court.3   Moreover,  the          court  held  that  the  government's  intended  cross-examination          regarding   the   breaking  and   entering   was   "germane"  and          "permissible" and thus refused to restrict its scope.                    After  excusing  Hopkins  from  testifying,  the  court          permitted Gary  to introduce  Hopkins'  prior recorded  testimony          from the  first trial by having  it read to the  jury by Hopkins'          state counsel.  Notwithstanding this ruling, Gary argued that his                                        ____________________          3   Hopkins was represented  by three different  attorneys in the          various  federal and  state  proceedings who  apparently did  not          communicate in advance of Hopkins'  testimony in the first trial.          In addition,  when Gary's counsel interviewed  Hopkins to solicit          information  upon which  his  testimony in  the  first trial  was          based,  she asked  permission only  of the  attorney representing          Hopkins on the federal charges.                                           -6-          Sixth  Amendment right  to  compulsory process  was violated  and          moved for a mistrial on that ground.  This motion was denied.                    The jury  returned a verdict  of guilty on  October 28,          1995.   Gary was sentenced as an armed career criminal to twenty-          four years and two months imprisonment, five  years of supervised          release, and a $50  special assessment.  Judgment was  entered on          January 19, 1995, and Gary filed a timely notice of appeal.                                      II.  ANALYSIS                                    II.  ANALYSIS                                         ________                    A.  Sixth Amendment Compulsory Process                    A.  Sixth Amendment Compulsory Process                    This case requires us to harmonize a conflict between a          defendant's Sixth Amendment right "to have compulsory process for          obtaining witnesses in his favor," U.S. Const. amend. VI, and the          government's  interest in  cross-examining a defense  witness who          has invoked his Fifth Amendment right against self-incrimination.                    Gary contends that his  right to compulsory process was          denied  when the trial court refused to permit Hopkins to testify          and  instead only  permitted  Hopkins' testimony  from the  first          trial to be read to  the jury.  Gary argues that the  trial court          should have  required Hopkins to  invoke his right  against self-          incrimination during cross-examination in the jury's presence.                     "The right to  offer the testimony of witnesses, and to          compel their  attendance,  if necessary,  is in  plain terms  the          right to present a defense  . . . .  This right  is a fundamental          element  of due process  of law."  Washington  v. Texas, 388 U.S.                                             __________     _____          14,  19 (1967); see also  Chambers v. Mississippi,  410 U.S. 284,                          ________  ________    ___________                                         -7-          302 (1973).  The  Sixth Amendment, however, does not  provide "an          unfettered  right   to  offer  testimony  that   is  incompetent,          privileged,  or  otherwise inadmissible  under standard  rules of          evidence."  Taylor v. Illinois, 484 U.S. 400, 410 (1988).  As the                      ______    ________          Supreme Court  noted  in an  opinion  upholding a  trial  judge's          decision to preclude a defense witness's testimony on evidentiary          grounds,  "[t]he  Sixth Amendment  does not  confer the  right to          present  testimony  free  from  the  legitimate  demands  of  the          adversary  system; one  cannot invoke  the Sixth  Amendment as  a          justification for presenting what  might have been a half-truth."          United States v. Nobles, 422 U.S. 225, 241 (1975).          _____________    ______                    While  the  government's  interest  in  cross-examining          defense  witnesses is not rooted  in the Constitution, see United                                                                 ___ ______          States  v. Pardo, 636  F.2d 535, 542 n.21  (D.C. Cir. 1980) ("The          ______     _____          government   of  course   has   no  Sixth   Amendment  or   other          constitutional right to  cross-examine defense witnesses."),  one          of the legitimate demands of the adversary system is the right of          cross-examination.   See Fed. R. Evid.  611(b) (permitting cross-                               ___          examination "limited to subject  matter of the direct examination          and  matters affecting  the  credibility of  witness").   "Cross-          examination is the principal means by which the  believability of          a  witness and the truth of his  testimony are tested."  Davis v.                                                                   _____          Alaska, 415 U.S. 308, 316 (1974).  As Professor Wigmore stated:          ______                      The   main   and  essential   purpose  of                      confrontation  is  to   secure  for   the                                         ______________________                      opponent   the   opportunity  of   cross-                      _________________________________________                      examination.      The  opponent   demands                      ___________                      confrontation, not for  the idle  purpose                      of gazing  upon the witness, or  of being                                         -8-                      gazed upon by him, but for the purpose of                      cross-examination,  which  cannot be  had                      except by the direct and personal putting                      of  questions   and  obtaining  immediate                      answers.          5  J. Wigmore,  Evidence    1395, at  150 (Chadbourne  rev. 1974)                          ________          (emphasis  in original), quoted in Davis, 415 U.S. at 315-16; see                                   _________ _____                      ___          also United States v. Stubbert, 655 F.2d 453, 457 (1st Cir. 1981)          ____ _____________    ________          (quoting same).                    Courts have not permitted  defendants to call witnesses          to the  stand who have indicated that  they will refuse to answer          the government's questions  on cross-examination with respect  to          non-collateral matters.  In United States v. De La Cruz, 996 F.2d                                      _____________    __________          1307 (1st Cir.), cert. denied, __ U.S. __, 114 S. Ct. 356 (1993),                           ____________          the  defendant called  his friend  and former  co-defendant  as a          witness, but in a voir dire examination, he refused to answer any          questions other  than his name and  address on self-incrimination          grounds.  In  response to  the suggestion  that the  government's          cross-examination should be limited so that the defense witness's          privilege need  not be  invoked, we  held that  "effective cross-          examination would have been  seriously impaired if the prosecutor          were denied latitude  to explore the joint  criminal history" and          affirmed  the trial judge's decision not to permit the witness to          testify.   Id. at 1312-14.  See  also United States v. Parcels of                     ___              _________ _____________    __________          Land, 903 F.2d 36, 43 (1st Cir. 1990) ("It is well-accepted  that          ____          a witness's direct testimony  can be stricken if she  invokes the          fifth amendment  on  cross-examination to  shield that  testimony          from scrutiny.")  (citing cases);  United States v.  Zirpolo, 704                                             _____________     _______                                         -9-          F.2d  23,  25-26  (1st  Cir.) (when  defense  witness  rightfully          refuses to answer questions based  on the privilege against self-          incrimination, trial  court need not limit  scope of government's          cross-examination    on    conversations   relating    to   other          contemporaneous  drug  offenses),  cert.  denied,  464  U.S.  822                                             _____________          (1983);  accord Denham v. Deeds, 954 F.2d 1501, 1503-04 (9th Cir.                   ______ ______    _____          1992) ("We . . . join with those circuits that have permitted the          exclusion of a  defense witness's testimony when the  witness has          refused  on cross-examination  to  respond to  questions on  non-          collateral matters."); United States  v. Esparsen, 930 F.2d 1461,                                 _____________     ________          1469-70  (10th Cir.  1991) (same),  cert. denied,  502 U.S.  1036                                              ____________          (1992);  United States v. Doddington, 822 F.2d 818, 822 (8th Cir.                   _____________    __________          1987) (trial  court properly  struck direct testimony  of defense          witness who invoked Fifth Amendment during cross-examination).                    Attempting to  combat this solid phalanx  of precedent,          Gary cites  cases in which courts  permitted government witnesses          to   invoke  the  privilege   against  self-incrimination  during          defendant's cross-examination without violating the Confrontation          Clause  of the  Sixth Amendment.   See  United States  v. Berr o-                                             ___  _____________     _______          Londo o,  946 F.2d 158, 160-61 (1st Cir. 1991), cert. denied, 502          _______                                         ____________          U.S. 1114 (1992);  Stubbert, 655 F.2d at  457-58.  Each  of these                             ________          cases  rely on the Second  Circuit's much-cited holding in United                                                                     ______          States  v. Cardillo, 316 F.2d  606, 611 (2d  Cir.), cert. denied,          ______     ________                                 ____________          375 U.S. 822 (1963) that:                      In determining whether the testimony of a                      witness who invokes the privilege against                      self-incrimination      during     cross-                      examination  may  be  used   against  the                                         -10-                      defendant,  a  distinction must  be drawn                      between cases  in which the  assertion of                      the  privilege  merely precludes  inquiry                      into collateral matters  which bear  only                      on  the credibility  of  the witness  and                      those cases in which the assertion of the                      privilege  prevents inquiry  into matters                      about  which  the  witness  testified  on                      direct examination.          When  cross-examination  is   precluded  only  with   respect  to          collateral issues, the Sixth Amendment does not require the court          to  strike the witness's testimony.  See Berr o-Londo o, 946 F.2d                                               ___ ______________          at  161   (refusing  to  strike  direct   testimony  when  cross-          examination limited to  issues "not relevant to  Berr o-Londo o's          guilt or innocence"); Stubbert, 655 F.2d at 457-58.                                ________                    When  cross-examination on  material  issues raised  on          direct  examination is  curtailed  because of  a witness's  valid          claim of privilege, however, the trial court,  in its discretion,          may refuse to permit  that witness's testimony.  See  De La Cruz,                                                           ___  __________          996 F.2d at 1313-14.  Just as the trial court must be vigilant in          ensuring  that a defendant has a full and fair cross-examination,          see  Cardillo, 316 F.2d at  611, it must  similarly safeguard the          ___  ________          government's  cross-examination  "to prevent  coconspirators from          'whitewashing'  each   other  through   the   use  of   testimony          unchallengeable for one reason or another."  Zirpolo, 704 F.2d at                                                       _______          26 (quoting United States  v. Lowell, 649 F.2d 950, 962  (3d Cir.                      _____________     ______          1981)).                    We have  recognized that it "may  sometimes be feasible          for  a  district  court to  reconcile  the  defendant's right  to          present  witnesses  with  a  witness's  privilege  against  self-                                         -11-          incrimination by  limiting the scope of  the latter's testimony."          Id.  at  26.   In  striking  the  appropriate  balance between  a          ___          defendant's Sixth Amendment rights and  the government's interest          in cross-examination, a "trial  judge may or even must  limit the          government's cross-examination on collateral matters if this  can          be  done without unduly limiting  the government and  if doing so          will preserve the defendant's ability to  call a material witness          who would otherwise  claim the privilege."  De La  Cruz, 996 F.2d                                                      ___________          at 1313; see also Pardo, 636  F.2d at 544 ("[W]here the rights of                   ________ _____          the  defendant   and  the  government  can   be  reconciled,  the          defendant's constitutional  right  to procure  testimony  in  his          favor must prevail.").                    Where, as here, a  defense witness's claim of privilege          shields material testimony from cross-examination,  however, this          balance weighs against  the defendant.   The trial  court held  a          voir  dire  hearing  to  determine  whether  the  subject  matter          concerning  which  the  witness  intended  to  assert  the  Fifth          Amendment  was collateral.  She fairly concluded that it was not.          See Fed.  R. Evid.  611(b)  (giving court  authority to  exercise          ___          reasonable  control over  examination of  witnesses to  "make the          interrogation and presentation effective for the ascertainment of          the truth").                    In  considering  similar  types  of  challenges brought          under the  Confrontation Clause of  the Sixth Amendment,  we have          applied an abuse of discretion standard.  See Berr o-Londo o, 946                                                    ___ ______________          F.2d  at  160  (holding  that  trial  court  did  not  abuse  its                                         -12-          discretion by  refusing to  strike witness's testimony  on direct          examination when  witness asserted Fifth Amendment  on collateral          matters  on  cross-examination,  particularly  when  witness  was          required  to invoke privilege in presence of jury).  We apply the          same  abuse   of  discretion  standard   in  determining  kindred          challenges  under  the Compulsory  Process  Clause  of the  Sixth          Amendment.   See United States v.  Blum, 62 F.3d 63,  67 (2d Cir.                       ___ _____________     ____          1995)   (applying  abuse   of  discretion   standard  to   review          evidentiary  decision  challenged  on Compulsory  Process  Clause          ground).  We find no abuse of discretion here.                    According  to  Gary's  proffer,  "Hopkins   would  have          testified that during  the course of the evening,  he was able to          observe  [Gary] and never visually  saw a firearm  on his person,          nor  was one detected  by the metal detectors,  or doorman at the          nightclubs."   Hopkins' testimony  certainly was material  to the          defense  as  it  showed  that,  after  a  significant  period  of          observation, he did not see Gary possess a firearm.   However, at          the  first  trial,  Hopkins  testified that  the  pair  had  been          involved in two instances of breaking and entering after  leaving          the clubs and that he did not know whether Gary had hidden  a gun          in his car before going to the clubs.  Had Hopkins been permitted          to testify  and  to  refuse to  answer  questions  regarding  the          breaking  and  entering,  as he  told  the  court  he would,  the          government's  cross-examination   of  Hopkins  would   have  been          rendered ineffective.                                           -13-                    Thus  the trial  court found,  "[t]he matters  that Mr.          Hopkins  would have testified to and, in  fact, did testify to at          the previous trial were closely related in time  and space to the          matter  that is before the Court in which the jury must consider.          And  therefore,  all  of  the information  that  would  have been          elicited  or attempted  to have  been elicited by  the Government          would have been  germane and  would have been  permissible."   We          discern no abuse of discretion in the trial court's determination          that  the subject  matter of  the cross-examination  as to  which          Hopkins  would  have  asserted  his privilege  was  material  and          relevant.   Any limitation  on cross-examination would  have been          unduly prejudicial to the government.                    Furthermore, in striking  the appropriate balance,  the          trial court took into consideration that Gary was not deprived of          an opportunity  to present Hopkins' testimony.   Although Hopkins          did not appear personally in the second trial, his testimony from          the first trial was read  in full to the jury.  It  was read with          counsel  for  the government  and  for  Gary each  reading  their          respective parts  and a third person  reading Hopkins' responses.          Indeed,  at  oral argument  Gary's  counsel  engaged in  a  brief          thespian demonstration intended to  convey the desiccated  manner          in which Hopkins' testimony was read at  Gary's second trial.  We          noted  then,  and  reiterate   today,  that  whenever  transcript          testimony  is admitted in a trial, the fact-finder is deprived of          a full-fledged opportunity to assess directly the credibility and          demeanor of  the  declarant.   The  rules of  evidence,  however,                                         -14-          permit such evidence to be admitted at trial.  See  Fed. R. Evid.                                                         ___          804(b)(1) (former testimony exception to hearsay rule).                    Gary suggests that, rather than  prohibit Hopkins' live          testimony  altogether,  the  trial  court  should have  permitted          Hopkins to testify on direct examination and forced him to invoke          the   Fifth  Amendment  privilege  on  cross-examination  in  the          presence of the jury.  That solution, Gary argues, strikes a more          appropriate balance between the  government's and the defendant's          interests because "the government  could have used the transcript          to impeach this testimony  or could have relied upon  the adverse          inference  of  the witness's  invocation  of  the Fifth."    This          approach  finds some support in United States v. Kaplan, 832 F.2d                                          _____________    ______          676 (1st Cir. 1987),  cert. denied, 485 U.S. 907 (1988), where we                                ____________          held that when "a non-party government witness  invokes the Fifth          Amendment on cross-examination at  trial, the court should permit          the assertion of the privilege in the presence of the  jury.  The          invocation of the privilege acts as a form of  impeachment."  Id.                                                                        ___          at 684.                      In Kaplan,  we distinguished United  States v. Johnson,                       ______                    ______________    _______          488 F.2d 1206 (1st Cir. 1973), in which we held that a  court did          not abuse its discretion  in refusing to allow a  defense witness          to  take the stand when,  after direct examination was completed,          that witness would assert the Fifth Amendment  as to "essentially          all" questions on cross-examination.  Id. at 1211.  The basis for                                                ___          the distinction follows:                      A  different case is  presented where, as                      here, the defense seeks  to cross-examine                                         -15-                      a  government witness within the scope of                      his direct  and then the  witness asserts                      the privilege.  We  note, first, that the                      impact on the  jury's deliberations  from                      asserting  the privilege  has to  be less                      here than in Johnson  from the fact  that                                   _______                      Brown   did   not  claim   the  privilege                      comprehensively.  Instead, Brown answered                      most questions put to him by the  defense                      and could have refused to answer at trial                      only those bearing on the alleged cocaine                      abuse.   And whatever  danger exists that                      the jury may give too much weight to this                      line   of   questioning   is   small   in                      comparison to its impeachment value.          Kaplan, 832 F.2d at 684.          ______                    Unlike  Kaplan,  where  the  invocation  of  the  Fifth                            ______          Amendment  pertained to  a  collateral matter  --  the effect  of          alleged  cocaine  abuse  on  the  witness's  power  of memory  or          observation --  here the  assertion of  the privilege would  have          shielded the witness from testifying on a core issue addressed on          direct  examination.   Hopkins'  claim  of  privilege would  have          precluded government inquiry into  the intervening events between          the  time Hopkins observed the  defendant to have  no firearm and          the time the police officer testified he saw a gun in defendant's          possession.  Such testimony would have been directly relevant  to          Gary's guilt  or innocence.   Accordingly, while the  trial judge          may have had the discretion to  strike a balance along the  lines                                         -16-          proposed by the defendant,4  there was no abuse of  discretion in          striking the balance a different way.5                    B.  Waiver of Fifth Amendment Privilege                    B.  Waiver of Fifth Amendment Privilege                        Against Self-Incrimination                        Against Self-Incrimination                    Gary asserts that Hopkins  waived his privilege against          self-incrimination by virtue of his testimony in the first  trial          regarding the breaking and entering.  Therefore, he contends, the          trial court wrongly sustained Hopkins' claim of privilege  in the          second trial.                    The  Fifth Amendment  privilege is "fundamental  to our          system  of constitutional  rule."   Miranda v. Arizona,  384 U.S.                                              _______    _______          436,  469   (1966).    However,  "the   privilege  against  self-          incrimination  presupposes  a  real  danger  of  legal  detriment          arising  from the disclosure."  Rogers v. United States, 340 U.S.                                          ______    _____________          367, 372-73 (1951).  Thus the privilege may be waived, see id. at                                                                 ___ ___          370-71,  or obviated by a  prosecutorial grant of  immunity.  See                                                                        ___          Kastigar  v. United  States,  406 U.S.  441,  461-62 (1972);  cf.          ________     ______________                                   ___          United States v. Angiulo,  897 F.2d 1169, 1191 (1st  Cir.) (court          _____________    _______          ordinarily  cannot grant  immunity), cert.  denied, 498  U.S. 845                                               _____________          (1990).                                          ____________________          4  There is no evidence in the record that the defendant proposed          this particular solution to the trial judge.           5   We also note that if Gary  had opted to testify as to whether          he possessed a  gun at the time of his arrest,  he would not have          been  permitted to take the  Fifth Amendment with  respect to the          breaking and  entering offenses which immediately  preceded.  See                                                                        ___          Brown v. United States, 356 U.S. 148, 155-57 (1958) (holding that          _____    _____________          defendant's exercise of right to testify in own behalf waives his          Fifth Amendment privilege against self-incrimination).                                         -17-                    Once    a   witness   voluntarily   has   revealed   an          incriminating  fact, "the  privilege cannot  be invoked  to avoid          disclosure of the details."   Rogers, 340 U.S. at 373.   However,                                        ______          "[i]t  is  hornbook  law  that  the  waiver  is  limited  to  the          particular  proceeding in  which  the witness  appears."   United                                                                     ______          States  v. Cain,  544  F.2d  1113,  1117  (1st  Cir.  1976)  (co-          ______     ____          defendant's   submission  to  deposition  in  unrelated  criminal          proceeding not waiver  of Fifth Amendment in proceeding  in which          co-defendant called  as witness); see  also Johnson, 488  F.2d at                                            _________ _______          1210-11 (witness's disclosures in entering guilty plea at Rule 11          hearing do  not constitute waiver of  privilege at co-defendant's          trial); Kirane v. City of Lowell, 622 F. Supp. 262, 265 (D. Mass.                  ______    ______________          1985)  ("[A] person who waives his privilege  as to the one trial          [is not] estopped  from asserting  the privilege as  to the  same          matter in  a subsequent  trial or  proceeding.");  8 J.  Wigmore,          Evidence   2276,  at 470-72 (McNaughton  rev. 1961) ("The  waiver          ________          involved is  limited to  the particular proceeding  in which  the                       _____________________________________          witness volunteers the testimony or the accused takes the stand .          . . .  Nor is his testimony at a first trial a waiver for a later                                                                      _____          trial.")  (emphasis in  original).  Therefore,  Gary's contention          _____          that  Hopkins  waived  his  privilege  in  the  second  trial  by          testifying in the first trial is misplaced.6                                        ____________________          6  The trial court arrived at the same conclusion  by a different          path, namely,  that Hopkins'  decision to  testify  at the  first          trial was not a voluntary, knowing, and intelligent waiver of his          Fifth Amendment privilege because he had  not been fully apprised          of  the consequences of his  testimony with respect  to the state          proceedings.    In light  of the  above  discussion, we  need not          address  the propriety of this  decision.  See  In re Morganroth,                                                     ___  ________________                                         -18-                    C.  The "Petite Policy"                    C.  The "Petite Policy"                    Gary contends that his federal prosecution violated the          Justice Department's  policy guarding against  dual federal-state          prosecutions.  See Petite  v. United States, 361 U.S.  529 (1960)                         ___ ______     _____________          (per curiam) (vacating conviction at government's request because          prosecution  contravened  internal   Justice  Department   policy          forbidding  multiple prosecutions  for  same  criminal  conduct).          "The  Petite  policy is  an  internal  Justice Department  policy          forbidding   federal  prosecution   of  a   person  for   alleged          criminality  which  was  'an   ingredient  of  a  previous  state          prosecution against that person'; exceptions are made only if the          prosecution  will  serve  'compelling  interests  of  federal law          enforcement.'"   United States v.  McCoy, 977 F.2d  706, 712 (1st                           _____________     _____          Cir.  1992) (quoting Thompson v. United States, 444 U.S. 248, 248                               _________________________          (1980)) (citation omitted).   See also Rinaldi v. United  States,                                        ________ _______    ______________          434  U.S.  22,  24 n.5  (1977)  (per  curiam)  (policy bars  dual          federal-state  prosecution).   We have  repeatedly held  that the          Petite  policy does  not  confer substantive  rights on  criminal          defendants.  See McCoy, 977 F.2d  at 712; United States v. Booth,                       ___ _____                    _____________    _____          673 F.2d 27, 30 (1st Cir.), cert. denied, 456 U.S. 978 (1982).                                        ____________                    D.  Selective Prosecution                    D.  Selective Prosecution                    Gary's   contention  that   he  was   entitled  to   an          evidentiary  hearing on  the ground  of selective  prosecution is          similarly without merit.   Although the exercise of prosecutorial                                        ____________________          718  F.2d  161,  165 (6th  Cir.  1983)  (holding  that waiver  of          privilege against self-incrimination is "proceeding specific").                                          -19-          discretion is  subject to  the constitutional guarantee  of equal          protection   and  "may   not  be   deliberately  based   upon  an          unjustifiable standard such as race, religion, or other arbitrary          classification,"    Wayte v.  United  States, 470  U.S.  598, 608                              _____     ______________          (1985)  (internal quotation  marks  and citations  omitted),  the          prosecutor  is entitled  to  "a threshold  presumption that  [he]          acted 'in good faith for reasons  of sound governmental policy.'"          United  States v. Pe agar cano-Soler, 911 F.2d 833, 837 (1st Cir.          ______________    __________________          1990) (quoting United States  v. Saade, 652 F.2d 1126,  1135 (1st                         _____________     _____          Cir. 1981)).                    As  an initial matter, we note that Gary did not timely          raise this issue before the district court.  In a brief  colloquy          on the morning of trial, Gary's counsel first raised the issue of          selective  prosecution to the  trial judge but  admitted that she          had  not filed  a  motion for  an  evidentiary hearing.    In the          absence of  exceptional circumstances  -- and none  are presented          here -- a claim of selective prosecution that is not raised prior          to  trial is  deemed waived.   Tracey v. United  States, 739 F.2d                                         ______    ______________          679, 682 (1st Cir. 1984), cert. denied, 469 U.S. 1109 (1985).                                    ____________                    Even if the motion had been timely filed, the burden is          upon the defendant to make an initial showing that an evidentiary          hearing  is warranted.    "A selective  prosecution claim  merits          evidentiary hearing if it alleges sufficient 'facts a) tending to          show  that [defendant]  has  been selectively  prosecuted and  b)          raising   a  reasonable   doubt  about   the  propriety   of  the          prosecution's  purpose' . .  . unless the  government can present                                         -20-          countervailing  reasons."   Pe agar cano-Soler, 911  F.2d at  838                                      __________________          (quoting Saade, 652 F.2d  at 1135).  A trial judge's decision not                   _____          to  hold  an  evidentiary  hearing  is  reviewed  for   abuse  of          discretion.  See id.                         ___ ___                    Here,  Gary did not  make any threshold  showing to the          trial court  tending to  show selective prosecution,  i.e., "that          [he] was  prosecuted while  others similarly situated  were not."          United  States v.  Bassford, 812  F.2d 16,  20 (1st  Cir.), cert.          ______________     ________                                 _____          denied, 481 U.S. 1022 (1987).  Gary attempts to make the required          ______          showing  to this  Court by  appending "statistics"  purporting to          demonstrate evidence  of  systemic selective  prosecution in  the          District  of Rhode Island.  Gary did not present this information          to   the  trial  court,  and  we  will  not  consider  on  appeal          evidentiary submissions  that were  not presented below.   United                                                                     ______          States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983).7          ______    ________              E.  Reliance on Perjured Testimony              E.  Reliance on Perjured Testimony                    Gary  contends that his  conviction was somehow tainted          by allegedly perjurious testimony that was elicited in his  first                                                                      _____          trial.   Specifically, he contends that  Officer John Arzoomanian                                        ____________________          7    These so-called  statistics,  compiled  by  hand by  defense          counsel based  on "information and belief,"  are comprised solely          of a list of prosecutions brought in the District of Rhode Island          under 18 U.S.C.    922 and 924 from 1990-1994 purporting to  show          that 70% of those prosecuted were members of a minority racial or          ethnic group.   The statistics  do not address  whether similarly          situated  whites  were  not  prosecuted.   Given  the  procedural          posture  of this case, we need not resolve the difficult question          as  to   when  raw  data  demonstrate   a  statistical  disparity          sufficient  to trigger the need for a hearing.  See Pe agar cano-                                                          ___ _____________          Soler, 911 F.2d at 837-38.           _____                                         -21-          of the  North Providence  Police Department committed  perjury at          the first trial when  testifying as to why he did not fingerprint          the firearm that was seized from Gary.  In Gary's first trial, in          response  to a question on re-direct examination as to why he did          not attempt to recover fingerprints, he answered:  "As far as the          size of  the gun --  the surface of  the weapon, also  the people          involved in the case both had gloves on."  (emphasis  added).  On                               __________________          re-cross, Arzoomanian hedged:                      Q.  And you  didn't bother to  attempt to                          lift a  print  in this  case  because                          this man had gloves on;  is that your                          testimony?                      A.  Well,  there were gloves found at the                          scene and gloves found in the vehicle                          also.          At the  second trial,  however, Arzoomanian testified  that after          the  arrest,  but before  the first  trial,  he learned  that the          gloves  actually belonged  to  rescue personnel.   He  explained:          "You asked  the reason  why I  didn't print the  weapon.   I said          because he had gloves on.   And I found out later, he didn't.  At          that point, the  evidence was  handled by too  many people."   As          Gary's   counsel   ably   emphasized  during   cross-examination,          Arzoomanian's testimony in the two  proceedings was inconsistent.          Gary asserts that Arzoomanian therefore committed perjury.                    Arzoomanian's testimony in the second trial did  differ          in  a troubling  way from  that given  in the  first trial.   His          explanation of  the inconsistency  is weak  because at  the first          trial he testified that Gary actually had worn gloves at the time          of arrest  -- not  that he  mistakenly believed  at  the time  of                                         -22-          arrest  that Gary was wearing  gloves.  However,  it is axiomatic          that inconsistent testimony is not per se perjurious.  See United                                             ______              ___ ______          States v. Dunnigan, __ U.S. __,  113 S. Ct. 1111, 1116 (1993) ("A          ______    ________          witness  testifying under oath  or affirmation  [commits criminal          perjury]  if  she gives  false  testimony  concerning a  material          matter with the willful intent to provide false testimony, rather                          ______________          than  as  a  result of  confusion,  mistake  or faulty  memory.")          (emphasis added).  The defendant neither asked the trial court to          make any findings  of perjury, nor  moved for a mistrial  on that          basis.   We decline defendant's  invitation to make  a finding of          willful  intent to  provide false  testimony based  solely on  an          inconsistency.                      Moreover, because Gary's first  trial did not result in          a conviction, he was not prejudiced even if Arzoomanian testified          falsely.  Cf. Kyles v. Whitley, __ U.S. __, 115 S. Ct. 1555, 1565                    ___ _____    _______          n.7  (1995)  ("[A]  conviction obtained  by  the  knowing use  of          perjured testimony is fundamentally unfair, and must be set aside          if there  is any reasonable  likelihood that the  false testimony          could have  affected the judgment of the  jury.") (quoting United                                                                     ______          States  v.  Agurs, 427  U.S.  97, 103  (1976)).   Here,  there is          ______      _____          neither a  conviction nor any  evidence that  indicates that  the          prosecution  intentionally used  perjured testimony.   The  first          trial ended with a hung jury, and Gary received a second trial at          which  he   was  fully  able  to  impeach  Arzoomanian  with  his          inconsistent testimony at the first trial.  In order to bootstrap          an allegation of prejudice stemming from Arzoomanian's testimony,                                         -23-          Gary  argues that  his  second trial  was  barred by  the  Double          Jeopardy Clause.  This  suggestion that double jeopardy prohibits          a  second   trial  because  of  the   unknowing  presentation  of          purportedly   perjured  testimony  by   a  prosecutor  is  wholly          unsupported by case law.                    Indeed, courts have  held that prosecutorial misconduct          must rise  to an  egregious level  for double jeopardy  to bar  a          retrial.     A  defendant  cannot  be  retried  only  "where  the          misconduct of the  prosecutor is undertaken  . . . to  prevent an          acquittal that [he] believed at the  time was likely to occur  in          the  absence of his misconduct."   United States  v. Wallach, 979                                             _____________     _______          F.2d  912,  916  (2d   Cir.  1992)  (holding  that  prosecutorial          misconduct  bars retrial  after conviction overturned  because of          perjured testimony only where this stringent standard met), cert.                                                                      _____          denied, __  U.S. __, 113 S.  Ct. 2414 (1993); see  also Oregon v.          ______                                        _________ ______          Kennedy, 456 U.S.  667, 679 (1982)  (retrial after defense  moves          _______          for  mistrial barred by  double jeopardy only  where "the conduct          giving rise  to the  successful  motion .  .  . was  intended  to          provoke the defendant into moving for a mistrial"); United States                                                              _____________          v. Cartagena-Carrasquillo,  No. 94-1235,  slip op. at  17-19 (1st             ______________________          Cir. Dec. 1, 1995) (when no evidence of prosecutorial misconduct,          defendant's  successful  motion  for mistrial  does  not  trigger          double  jeopardy).  In this case, there is absolutely no evidence          to  buttress  a finding  of deliberate  prosecutorial misconduct,          and,  at  worst,  Arzoomanian's  alleged  perjury  related  to  a                                         -24-          collateral matter.  Therefore, the Double Jeopardy Clause did not          prohibit Gary's second trial and subsequent conviction.                    F.  Application of Sentencing Guidelines                     F.  Application of Sentencing Guidelines                     Gary asserts that the  trial judge erred in calculating          his sentence under U.S.S.G.    4B1.4.  This provision  determines          the offense  level and criminal  history category of  persons who          are subject to an enhanced  sentence under the ACCA, 18  U.S.C.            924(e).   Gary  does  not  contest that  he  is  an armed  career          criminal.   Rather, he  argues that  the trial  judge incorrectly          applied U.S.S.G.    4B1.4(b)(3)(A) to arrive at  an offense level          of 34  when she should  have used    4B1.4(b)(1) to  arrive at  a          lower level.8   We review  questions of interpretation  under the                                        ____________________          8  U.S.S.G. 4B1.4 provides in pertinent part:                      (a) A  defendant who  is  subject  to  an                          enhanced    sentence     under    the                          provisions  of 18 U.S.C.    924(e) is                          an armed career criminal.                      (b) The offense level for an armed career                          criminal is the greatest of:                          (1)  the  offense   level  applicable                               from Chapters Two and Three; or                          (2)  the  offense level  from   4B1.1                               (Career Offender) if applicable;                               or                          (3)(A)  34, if the defendant  used or                                  34                                  possessed   the  firearm   or                                  ammunition in connection with                                  a   crime   of  violence   or                                  controlled substance offense,                                  as defined  in   4B1.2(1), or                                  if  the firearm  possessed by                                  the defendant was  of a  type                                  described   in    26   U.S.C.                                    5845(a)[]; or                             (B)  33, otherwise.[ ]                                  33                                         -25-          guidelines de  novo.  See United  States v. Fiore, 983  F.2d 1, 2                     ________   ___ ______________    _____          (1st  Cir.  1992), cert.  denied, __  U.S.  __, 113  S.  Ct. 1830                             _____________          (1993).                    U.S.S.G.    4B1.4  instructs the  sentencing  judge  to          select  the  offense  level  that  is  the  "greatest"  of  three          categories.   First, there is  the offense level  applicable from          the underlying offense,  which here is  U.S.S.G.   2K2.1  dealing          with unlawful  possession of a firearm.  As Gary had at least two          prior  felony  convictions of  either a  crime  of violence  or a          controlled substance offense, he  would receive a minimum offense          level  of 24  under  this  provision.    Because  Gary  "used  or          possessed"  the  firearm  "in  connection  with"  another  felony          offense  (i.e.,  breaking  and  entering), which  results  in  an          increase  of four  levels  under U.S.S.G.    2K2.1(b)(5),  Gary's          presentence  report calculated his base offense level at 28.  PSR             14-15.   The  report then  added a  three-level victim-related          adjustment for assaulting a police officer pursuant to U.S.S.G.            3A1.2(b) to reach an adjusted offense level of 31.  PSR   20.                    Gary  disputes this  interpretation of  the guidelines.          This Court  recently held that use of a firearm in an assault and          battery  warranted  the  four-level  enhancement  under  U.S.S.G.            2K2.1(b)(5).   United States v. Sturtevant, 62 F.3d 33, 34 (1st                           _____________    __________          Cir. 1995) (per curiam).   Gary's possession of a  firearm during          the breaking  and entering  similarly qualifies as  possession in          connection with  another felony and would  require enhancement to          level 28  were we to find that   2K2.1 controls.  Thus, including                                         -26-          the  victim-related  adjustment, the  correct  underlying offense          level "from Chapters  Two and  Three" of the  guidelines was  31.          U.S.S.G.   4B1.4(b)(1).                    The second  category,  which would  adopt  the  offense          level from U.S.S.G.   4B1.1, is  not applicable here.  U.S.S.G.            4B1.1 does  not apply because the "instant offense" (i.e., felon-          in-possession of  a firearm)  is not  a crime of  violence.   See                                                                        ___          U.S.S.G.   4B1.2 comment n.2; United States v. Doe, 960 F.2d 221,                                        _____________    ___          226 (1st Cir. 1992).                    The  third  category  directs  the court  to  adopt  an          offense  level  of 34  if the  "defendant  used or  possessed the          firearm  or ammunition in connection with a crime of violence" or          33  in  all  other cases.    Because  the judge  must  select the          greatest  of the three  categories, 33  is the  minimum "default"                                                          _______          offense level  available under this provision  without a downward          adjustment for  acceptance of responsibility.   See United States                                                          ___ _____________          v.  George, 56 F.3d 1078, 1086  (9th Cir.), cert. denied, __ U.S.              ______                                  ____________          __, 116 S. Ct. 351 (1995).  Gary's arguments for an offense level          any lower than 33 are misplaced.                    Finding that Gary  possessed the firearm  in connection          with a  violent crime (i.e.,  breaking and  entering), the  trial          judge   adopted  34   as  the   offense  level   pursuant   to             4B1.4(b)(3)(A).9  The court  calculated the guidelines sentencing                                        ____________________          9    At  Gary's  sentencing,  the  trial  court  held  that  "the          possession of a gun must be found to have either  been used or to          have  facilitated   the  commission   of  another   offense"  and          determined that  Gary's possession  of a firearm  facilitated the          commission of the breaking and enterings.                                          -27-          range to be  262-327 months (offense  level 34, criminal  history          category VI) and imposed a sentence of 290 months.  Gary contests          the trial court's  interpretation of  U.S.S.G.    4B1.4(b)(3)(A).          Because  a felon-in-possession  charge  is not  itself a  violent          crime,  see Doe,  960 F.2d  at 226,  Gary argues  that the  court                  ___ ___          should not have imposed an offense level of 34.  He also contends          that  the  breaking and  entering charge  cannot  be used  as the          predicate violent crime because  there is an insufficient "nexus"          between the firearm and the alleged state offense.                    Making  a determination under U.S.S.G.   4B1.4(b)(3)(A)          involves  a  two-step inquiry.    First,  the court  must  decide          whether the predicate offense  is a violent felony.   Second, the          court must  consider whether  the defendant  used or possessed  a          firearm in connection with that violent predicate offense.                    In  making the first inquiry, the court is to employ "a          formal categorical  approach" irrespective of the  actual factual          circumstances  of  the  underlying  offense.   Taylor  v.  United                                                         ______      ______          States, 495 U.S. 575, 600 (1990) (holding that court must look to          ______          statutory definition  of ACCA predicate offenses).   To determine          what constitutes a violent crime under U.S.S.G.   4B1.4(b)(3)(A),          the court must  turn to  the definition provided  in    4B1.2(1).          "[That] guideline proceeds to  define as a crime of  violence any          offense which 'otherwise involves conduct that presents a serious          potential  risk of physical injury to another.'"  Fiore, 983 F.2d                                                            _____          at  4 (quoting U.S.S.G.    4B1.2(1)(ii)).  In  that case, we held          that a prior  conspiracy conviction for burglary of  a commercial                                         -28-          premise was a violent  crime for purposes of the  career offender          guideline,  U.S.S.G.     4B1.2.10     Fiore,  983  F.2d  at  4-5.                                                _____          Breaking and entering similarly is a violent crime under U.S.S.G.            4B1.4.  Cf. United States v. Patterson, 882 F.2d  595, 602 (1st                    ___ _____________    _________          Cir. 1989)  (holding  that breaking  and entering  as defined  in          Massachusetts  is  violent crime  because  unauthorized entry  of          premises  of  another  is   a  "crucial  factor"  in  determining          applicability of catch-all provision  of ACCA), cert. denied, 493                                                          ____________          U.S. 1027 (1990).                      With regard  to the  second  part of  the inquiry,  the          trial  court found  that  the defendant  possessed  a firearm  in          connection with the breaking and entering.  Here, the court is to          consider the  facts to  determine whether  there is a  sufficient          nexus  between possession of  the firearm  and commission  of the          underlying offense.  See United States v. Samuels, 970 F.2d 1312,                               ___ _____________    _______          1316 (4th Cir.  1992) (determining whether  firearm was used  "in          connection with" crime of violence "requires the sentencing court          to consider the factual circumstances surrounding the [18 U.S.C.]            922(g) offense.").                      In construing a similar guidelines  provision, U.S.S.G.            2K2.1(b)(5), we have held that "the phrase 'in connection with'          should  be  interpreted broadly  and  [  ]  where  a  defendant's                                        ____________________          10  We also note that  in Fiore, as here, the commercial burglary                                    _____          occurred in  Rhode Island,  which defines  burglary, in  part, as          breaking and entering a shop with the intent to commit robbery or          larceny.  983 F.2d  at 4 n.6;  see also R.I.  Gen. Laws    11-8-4                                         ________          (1994).    This  offense is  a  felony  punishable  by ten  years          imprisonment.  R.I. Gen. Laws   11-8-4.                                          -29-          possession  of a  firearm aids or  facilitates the  commission of          another offense, the  requisite link is present."   United States                                                              _____________          v. Thompson,  32 F.3d 1,  7 (1st Cir.  1994).  In  Sturtevant, 62             ________                                        __________          F.3d at 33-34, we found that a felon who assaulted  a victim with          his  hands but carried a  concealed shotgun used  the firearm "in          connection with" the  offense of  assault and battery.   This  is          because "the weapon provides an added sense of security and has a          substantial potential  for use  in the course  of the  particular          crime in question."  Id. at 34; United States v. Brewster, 1 F.3d                               ___        _____________    ________          51,  54-55 (1st Cir. 1993) (selling drugs and automatic weapon to          undercover  agent satisfied "in  connection with"  requirement of          U.S.S.G.   2K2.1(b)(5)).  We see no reason to treat the identical          "in  connection  with"  language  in  U.S.S.G.     4B1.4(b)(3)(A)          differently from that of   2K2.1(b)(5).                    We  therefore have  no difficulty  upholding the  trial          court's findings  that Gary possessed the  firearm "in connection          with" the breaking and entering.  Gary and Hopkins  broke into at          least  two commercial  establishments.   When arrested,  both men          were in possession of  firearms, and merchandise from one  of the          stores was  found in Gary's car.  The trial court found that Gary          and  Hopkins armed  themselves  when they  decided to  commit the          breaking and entering for the purpose of facilitating that crime.          "[W]e review the court's factfinding for clear  error, giving due          deference  to the  court's application  of the guidelines  to the          facts."   Thompson, 32  F.3d at 4  (citing 18  U.S.C.   3742(e)).                    ________                                         -30-          There was ample support  for the trial judge's findings  of fact,          and we affirm Gary's sentence under U.S.S.G.   4B1.4.11                                   III.  CONCLUSION                                   III.  CONCLUSION                                         __________                    For  the  reasons  stated  herein,  the conviction  and          sentence of Raymond J. Gary are AFFIRMED.                                          AFFIRMED                                          ________                                        ____________________          11  Subsequent  to oral argument in this case,  the Supreme Court          issued  an opinion in  Bailey v.  United States,  __ U.S.  __, 64                                 ______     _____________          U.S.L.W.  4039 (Dec. 6, 1995),  which defined the  word "use" for          purposes  of 18  U.S.C.    924(c)(1) (imposing  five-year minimum          term of imprisonment upon  person who "during and in  relation to          any  crime of violence  or drug trafficking  crime . .  . uses or          carries a firearm.").   The Court held that a conviction  under            924(c) requires the government to prove more than mere possession          but rather to show  "active employment of the firearm."   Bailey,                                                                    ______          64  U.S.L.W. at 4041 (emphasis omitted).  This decision does not,          however,  affect  Gary's  sentence.   Bailey  does  not  apply to                                                ______          U.S.S.G.    4B1.4(b)(3)(A), which  reaches offenses in  which the          defendant  either "used or possessed"  a firearm.   Id.; see also                                                              ___  ________          Bailey,  64   U.S.L.W.  at  4043  (recognizing   that  sentencing          ______          guidelines  may  provide  enhancements  for  mere  possession  of          firearm during other offense).                                         -31-
