
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1487                                    UNITED STATES,                                      Appellee,                                          v.                                   CHARLES POWELL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Elizabeth  A. Lunt,  with whom  Zalkind, Rodriguez, Lunt  & Duncan            __________________              __________________________________        were on brief for appellant.            Ralph F.  Boyd, Jr., Assistant  United States  Attorney, with whom            ___________________        Donald K.  Stern,  United  States Attorney,  and  Kevin  J.  Cloherty,        ________________                                  ___________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                    March 29, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.  Following a five-day                      BOWNES, Senior Circuit Judge.                              ____________________            jury trial, defendant-appellant Charles Powell  was convicted            of being  a felon in  possession of a  firearm.  18  U.S.C.              922(g)(1).  He was then sentenced to the statutory maximum of            120 months' imprisonment.   Powell challenges his  conviction            and sentence  on  a  variety  of grounds.    After  carefully            reading  the record  and considering  Powell's arguments,  we            affirm.                                          I.                                          I.                                          __            A.  General Background            A.  General Background            ______________________                      At  shortly after  2:00  p.m. on  October 7,  1992,            Powell was standing  outside of  his truck.   He was  holding            food and conversing with Arvetta Boykins -- his girlfriend --            and Boykins' mother as the  two women sat in the truck.   The            truck  was  parked  on  Boston's  Humboldt  Avenue  near  its            intersection with  Ruthven  Street and  across from  Humboldt            Liquors.  As this conversation  was taking place, a  grayish-            silver  Subaru  drove slowly  down  Ruthven  and turned  onto            Humboldt.   There were four young men  in the Subaru, each of            whom was wearing a hooded sweatshirt with the hood pulled up.                      As the  Subaru proceeded down Humboldt,  the men in            the car  yelled something to a  couple of young men  -- Chris            Cheney  and  Ernest  Rhodes  --  who  were  standing  out  on            Humboldt.  Either Rhodes  or Cheney yelled back.   After this            exchange, the driver of the Subaru put the car in reverse and                                         -2-                                          2            accelerated   quickly,  making   a  loud   screeching  sound.            Observing this,  Powell handed  his food to  his girlfriend's            mother and told the two women  to "get out of here."  Knowing            that trouble  was brewing,  they quickly complied  by driving            off.  Powell then ran up Ruthven.                      By about 2:30 p.m., Powell had returned to Humboldt            Avenue and was  talking with  Cheney and Rhodes  in front  of            Humboldt Liquors.  Around this same time,  Stanley Owens came            around the corner of Ruthven and Humboldt on a mountain bike.            He  had his hand in his jacket  pocket and was leaning to his            left.   At  least  one other  youth also  came  on the  scene            simultaneously.    At  some  point,  gunfire  erupted.    The            gunfire, which came from at least three guns, was  continuous            and lasted  six or  more seconds.   Three  persons, including            Powell,  were wounded  in  the shoot-out;  Owens was  killed.            Cheney and Rhodes  escaped injury by  taking cover inside  of            Humboldt Liquors.  Within an hour of the shooting, Powell was            arrested.  At the time of his arrest, Powell was standing  in            an  alley  not  far  from  the intersection  of  Ruthven  and            Humboldt, and was holding a .44 Charter Arms Bulldog handgun.            He also  had a walking  cane with him.   It was  subsequently            determined  that  a bullet  from  the .44  had  killed Owens.            Powell does not dispute that he fired two shots  with the .44            during the shoot-out.            B.  The Necessity Defense            B.  The Necessity Defense            _________________________                                         -3-                                          3                      At trial, the  government argued  that Powell  shot            Owens with a gun he  had brought to the crime scene.   Powell            consistently denied this, asserting as an affirmative defense            that he  took possession of the .44  only out of necessity in            the  midst of  the shoot-out.   When  he was in  an ambulance            after the shooting, Powell told an arresting officer that the            youths  in the gray Subaru had started shooting from the car,            that a  light-skinned black  male had alighted  and continued            the shooting,  that he (Powell) ran towards this shooter, and            that  the shooter then lost control of the weapon, dropped it            to  the ground, and jumped  back into the  Subaru, which sped            off.  Powell  stated that he picked up the gun and ran to the            alley in  which he was arrested.   He did  not mention firing            the weapon at anyone.                      To  clarify how  the  shooter lost  control of  the            weapon, the officer  asked Powell  to repeat his  story.   At            this point,  Powell told  the officer that  the light-skinned            male got out  of the Subaru, began the  shooting, and fled on            foot.   He  did not  mention the  shooter dropping  or losing            control of his weapon.  When the officer asked how the weapon            ended up on the ground, Powell did not answer.                      At trial, Powell  had a third  account of what  had            happened.  Powell testified  that he heard shots ring  out as            he stood in front of Humboldt Liquors talking with Cheney and            Rhodes.   While Cheney  and Rhodes  sought refuge inside  the                                         -4-                                          4            store,  Powell  began  running  up  the  street  towards  the            intersection of Humboldt and  Ruthven.  Just then, a  man who            was pulling a  gun out of his pocket came  running around the            corner.   The man pointed the  gun at him, but  was unable to            fire it before  Powell was upon him.   The two  scuffled, and            the gun fell  to the ground.  The man  fled around the corner            and  Powell picked up  the gun.   Powell began to  run across            Ruthven and  was shot in the leg.  He turned around and fired            two shots  at  his assailant.   He  then ran  up Humboldt  to            Homestead Street,  turned left on Homestead,  and headed into            an alley,  where he found a  walking cane.  He  stayed in the            alley until he was arrested.            C.  Other Guns            C.  Other Guns            ______________                      After the shooting, an arresting  officer retrieved            a set  of keys from Powell.   The keys were  to a two-bedroom            apartment  at Fairlawn  Estates  in the  Mattapan section  of            Boston.    The  police  obtained  a  search warrant  for  the            apartment,  and executed  the warrant  the same night  as the            shooting.   The search turned  up two additional  weapons:  a            fully-loaded black Taurus 9 mm. semi-automatic pistol with an            obliterated serial number; and a .38 caliber derringer loaded            with two  rounds of ammunition.   The Taurus was hidden  in a            laundry basket  located  in the  apartment's master  bedroom.            The  derringer was  hidden on  a closet  shelf in  the second            bedroom.       Although  Powell  claimed to  be  nothing more                                         -5-                                          5            than a  sporadic visitor  to the Fairlawn  Estates apartment,            the  evidence,  taken  in  a  light  most  favorable  to  the            government,  established that  Powell  and Boykins  (Powell's            girlfriend) were living  there at the  time of the  shooting.            Powell and  Boykins had  signed a rental  application, lease,            lease addendum, and rules  and regulations acknowledgment for            the apartment in  August, 1992.   Moreover, Boykins told  the            grand  jury  that  she  and  Powell  (along  with  their  two            children) were  living in  the apartment,  and  that she  and            Powell  shared  the  master  bedroom.    This  testimony  was            introduced  at  trial.   Finally,  the  evidence showed  that            Powell's name was on the mailbox for the apartment; that only            Powell and Boykins had keys to the apartment; that Powell had            personally  visited the Fairlawn  Estates apartment manager's            office on  at least two occasions in  the months prior to the            shooting; and  that Powell had once  telephoned the apartment            manager and made an oral request that  repairs be made to the            apartment.   Boykins testified  that Powell's cousin  and her            children also were staying  at the apartment around  the time            of  the shooting.  Powell testified that his cousin's husband            was staying there as well.            D.  Proceedings Below            D.  Proceedings Below            _____________________                      On  December 18,  1992, the  grand jury  returned a            three-count indictment  against Powell.  Count  I charged him            with being a felon  unlawfully in possession of the  .44 used                                         -6-                                          6            in the shooting. See 18 U.S.C.   922(g)(1).  Count II charged                             ___            him with being a felon unlawfully in possession of the Taurus            pistol,  the  derringer,  and  the ammunition  found  in  the            Fairlawn Estates apartment.   See id.  Count III  charged him                                          ___ ___            with unlawfully possessing a firearm -- the Taurus -- with an            obliterated serial number.  See 18 U.S.C.   922(k).  Prior to                                        ___            trial,  the district court severed Counts II and III from the            trial of Count I.   The court also granted Powell's motion in                                                                       __            limine requesting that the government not be allowed to refer            ______            to the firearms  and ammunition  which were  the subjects  of            Counts  II and III  during its opening  statement or case-in-            chief.    The court  did,  however,  reserve judgment  as  to            whether evidence  relating to Counts II and  III might become            admissible after the defense put on its case.  The government            complied  with the court's order  and did not  allude to this            evidence at any point during its case-in-chief.                      The defense  called Arvetta Boykins  as a  witness.            She testified,  in response to a question by defense counsel,            that numerous random police searches of  Powell in the months            preceding the shoot-out had failed to turn up a weapon on his            person or in his car.  The government then asked the court to            revisit  its  ruling in  limine.   At  this point,  the court                                 __  ______            allowed the government to cross-examine Boykins about whether            she or  Powell had stored  in the Fairlawn  Estates apartment            the   firearms  described  in  Counts   II  and  III  of  the                                         -7-                                          7            indictment.  The court ruled that defense counsel had "opened            the  door" to this  inquiry by asking  Boykins whether "she's            seen  him with a weapon  on occasion."   Defense counsel, who            had  asked only about police searches of Powell in the months            preceding the shoot-out, denied having asked such a question.            Boykins  denied  that the  firearms  were  hers or  Powell's.            After Boykins  completed her  testimony, Powell  himself took            the  stand and asserted, inter alia, that  he had never had a                                     _____ ____            firearm on him in the summer of 1992.                       Subsequently, the court permitted the government to            introduce the evidence  underlying Counts II and III  as part            of its  rebuttal case.   The court informed the  jury that it            should  not  consider  the  firearms found  in  the  Fairlawn            Estates apartment  at all unless  it first found  that Powell            possessed them.   The court also  told the jury  that, if  it            found  that Powell did possess  these firearms, it should not            consider  this evidence "to  show that the  defendant was the            kind  of person  who possessed  firearms, but rather  to show            that  the defendant  had an  opportunity to  obtain firearms,            that  the  defendant had  knowledge  of  the availability  of            firearms, that [his possession of the .44] was not a question            of mere  necessity."   See Fed.  R. Evid.  404(b).   The jury                                   ___            convicted  Powell  of the  crime alleged  in  Count I  of the            indictment.  The government thereafter dismissed the  severed            Counts, II and III.                                         -8-                                          8                      On  March  29, 1994,  the district  court sentenced            Powell.  The court first assigned him a base offense level of            20 pursuant to U.S.S.G.   2K2.1(a)(4) (1993).  The court then            added the  following  nine  offense-level  increases:    four            levels  because  the possession  of  the  .44 took  place  in            connection   with   another   felony   offense,   i.e.,   the            unjustifiable killing  of Stanley  Owens, see    2K2.1(b)(5);                                                      ___            one  level  because  Powell's  offense and  relevant  conduct            involved  the possession  of  three firearms,  see  id. at                                                              ___  ___            2K2.1(b)(1); two levels  because one of  the firearms had  an            obliterated  serial number, see id. at   2K2.1(b)(4); and two                                        ___ ___            levels   because   Powell   obstructed  justice   by   giving            "perjurious"  testimony,  see     3C1.1,  comment.  (n.3(b)).                                      ___            These increases led to a final  offense level of 29.  Because            Powell had  a criminal history  category of V,  his guideline            sentencing range was 140 to 175 months.  In view  of the ten-            year  statutory   maximum  applicable  to   the  offense   of            conviction, see  18 U.S.C.    924(a)(2), the  court sentenced                        ___            Powell to a 120-month term of imprisonment.  In so doing, the            court rejected Powell's request for a downward departure from            the applicable  sentencing range because Powell  purported to            have committed the offense of conviction "in order to avoid a            perceived  greater harm."   See    5K2.11  (allowing downward                                        ___            departures in some such situations).                                         II.                                         II.                                         ___                                         -9-                                          9                      Powell  makes six  arguments  on appeal:   (1)  the            district  court  committed  reversible  error   in  admitting            evidence of  the guns  and ammunition  found in  the Fairlawn            Estates apartment; (2)  the court committed  reversible error            in permitting the government to impeach Powell with his prior            felony  convictions;  (3)  the   court  erred  in  increasing            Powell's offense  level by  four on  the grounds that  Powell            possessed the .44 in  connection with another felony offense;            (4) the court erred  in increasing Powell's offense level  by            three for "relevant conduct"  that included the possession of            the guns  found in  the Fairlawn Estates  apartment; (5)  the            court erred in  increasing Powell's offense level  by two for            obstruction of justice; and (6) the court erred in  declining            to depart downward.  We address each argument in turn.            A.  Admission of the Evidence from the Fairlawn Estates                  A.  Admission of the Evidence from the Fairlawn Estates            _______________________________________________________            Apartment            Apartment            _________                      Powell's argument relating to the evidence from the            Fairlawn  Estates apartment  is  tripartite.   First,  Powell            contends that the  evidence is not relevant  because the jury            could  not reasonably  have concluded  that he  possessed the            guns and  ammunition discovered  during the search.   Second,            Powell asserts that the court erred in admitting the evidence            under Rule 404(b), even if the jury  could have found that he            possessed  the guns  and ammunition.   Third,  Powell insists            that  the court erred in deciding that the probative value of            this evidence was not "substantially outweighed by the danger                                         -10-                                          10            of unfair  prejudice, confusion of the  issues, or misleading            the jury,"  see Fed. R. Evid.  403, even if  the evidence was                        ___            otherwise admissible.  In  light of the deference we  give to            the  challenged  district   court  rulings,  we   discern  no            reversible error.                      Because   the   court   conditioned    the   jury's            consideration of  the evidence found in  the Fairlawn Estates            apartment  upon  its  initially  finding possession  of  this            evidence  by  Powell, the  first  part  of Powell's  argument            implicates  Fed.  R. Evid.  104(b).    Rule 104(b)  provides:            "When the relevancy of  evidence depends upon the fulfillment            of a  condition of fact,  the court shall  admit it  upon, or            subject  to,  the  introduction  of  evidence  sufficient  to            support a finding of the fulfillment of the condition."  Like            other admissibility rulings,  the decision  whether there  is            sufficient evidence  to support a finding  of the fulfillment            of the  condition  is committed  to the  trial judge's  "wide            discretion."   See  Veranda  Beach Club  Ltd. Partnership  v.                           ___  _____________________________________            Western Sur. Co., 936 F.2d 1364, 1371 (1st Cir. 1991).            ________________                      The  Supreme Court  has  set forth  the process  by            which the trial court should make this decision:                      In determining whether the Government has                      introduced  sufficient  evidence to  meet                      Rule  104(b),  the  trial  court  neither                      weighs  credibility  nor makes  a finding                      that  the  Government   has  proved   the                      conditional  fact  by a  preponderance of                      the  evidence.  The court simply examines                      all the evidence in the  case and decides                                         -11-                                          11                      whether  the  jury could  reasonably find                      the  conditional   fact  .   .  .  by   a                      preponderance of the evidence.            Huddleston  v. United States, 485  U.S. 681, 690  (1988).  We            __________     _____________            therefore  ask only  whether  the district  court abused  its            discretion in  deciding that the jury  could reasonably find,            by a preponderance of the evidence, that Powell possessed the            Taurus and derringer.                      Possession  of  firearms can  be  either  actual or            constructive.   See, e.g., United  States v. Rogers,  41 F.3d                            ___  ____  ______________    ______            25,  29 (1st  Cir.  1994).   In  Rogers, we  approved  a jury                                             ______            instruction which explained:                        "A  person who,  although  not in  actual                      possession, knowingly has both  the power                      and  the intention  at  a  given time  to                      exercise  dominion  or  control   over  a                      thing, or to exercise dominion or control                      over  the  area in  which  that thing  is                      found,   whether   directly  or   through                      another person, is  then in  constructive                      possession of the thing."            Id.  at  30  (emphases omitted).    Thus,  so  long as  one's            ___            dominion/control over  the area  containing the thing  at the            relevant  time is  established,  "one can  possess an  object            while it  is hidden at home in a bureau drawer, or while held            by an  agent, or even while  it is secured in  a safe deposit            box  at the  bank  and  can be  retrieved  only  when a  bank            official  opens   the  vault."    United   States  v.  Zavala                                              _______________      ______            Maldonado, 23 F.3d 4,  7 (1st Cir.) (interpreting scope  of a            _________                                         -12-                                          12            drug  possession  statute),  cert.  denied, 115  S.  Ct.  451                                         _____  ______            (1994).                      In view of this broad understanding of "possession"            and  the applicable  preponderance standard,  see Huddleston,                                                          ___ __________            485 U.S.  at 690, we  have little difficulty  concluding that            there  was no abuse of  discretion here.   There was evidence            that Powell was  sharing the master  bedroom of the  Fairlawn            Estates  apartment at the time  of the shooting;  that he had            signed  a variety of forms relating to the apartment; that he            had made a  request for  repairs to the  apartment; that  his            name was  on the mailbox; that he was one of only two persons            with keys;  and that the  guns found there did  not belong to            the  apartment's other  primary  adult  resident --  Boykins.            This  evidence was more than  adequate for the  court to have            allowed the jury  to consider  whether Powell  constructively            possessed the  Taurus and  derringer that were  hidden within            the apartment.    All the  evidence tended  to show  Powell's            dominion over the apartment in which the guns were found, and            some of it --  Boykins' testimony that the guns were not hers            --  tended to show that  the guns were  Powell's (although we            acknowledge Boykins' further testimony that the guns were not            Powell's).  We therefore reject Powell's relevancy argument.                      The second  and  third parts  of Powell's  argument            against the  admissibility of the evidence  from the Fairlawn            Estates  apartment do not fare any better.  In admitting this                                         -13-                                          13            evidence,  the  district  court  employed the  correct  legal            analysis.  The  court first determined that the  evidence had            "special  relevance" to  material  issues raised  by Powell's            case  --  whether Powell  possessed  firearms  in the  months            preceding the shoot-out, whether Powell had an opportunity to            obtain  firearms,   whether  Powell  had  knowledge   of  the            availability of firearms, and  whether Powell's possession of            the .44 was a question  of mere necessity -- and that  it was            not being  offered to  show Powell's character  or propensity            for criminal conduct.   See, e.g.,  United States v.  Tuesta-                                    ___  ____   _____________     _______            Toro, 29  F.3d  771, 775  (1st  Cir. 1994)  (explaining  Rule            ____            404(b) inquiry), cert. denied, 115 S. Ct. 947 (1995).                               _____ ______                      The court then decided  that the probative value of            the evidence  was not substantially outweighed  by the danger            of unfair prejudice.   See id.   (citing Rule 403).   Because                                   ___ ___            legal error  did not  infect the  trial court's analysis,  we            afford the  court's conclusions considerable  deference.  See                                                                      ___            id.; see also  United States v. Guyon, 27  F.3d 723, 729 (1st            ___  ___ ____  _____________    _____            Cir. 1994) (trial court's  Rule 404(b) ruling reversible only            if  the court abused its discretion); Veranda Beach Club, 936                                                  __________________            F.2d  at  1372  (trial  court's construction  of  Rule  403's            probative   value/unfair   prejudice   balance   subject   to            substantial deference on appeal);  United States v. Wood, 982                                               _____________    ____            F.2d 1, 4  (1st Cir.  1992) (decision whether  to permit  the                                         -14-                                          14            introduction of rebuttal evidence is  within sound discretion            of the trial judge).                      Again, we see no abuse of discretion.  Although the            court may have oversimplified a bit in asserting that defense            counsel had  asked Boykins whether  she'd seen Powell  with a            weapon on  occasion, we think the  court permissibly admitted            the  challenged evidence  to  rebut  the implication  plainly            inhering in Boykins's  testimony regarding the futile  police            searches  of Powell  in the  months preceding  the shoot-out:            that  Powell was not a  possessor of firearms  at the time of            the shooting.   We  think that the  challenged evidence  bore            special  relevance  to  whether  Powell only  came  into  the            possession of the .44 as a matter of necessity, or whether he            was armed at the time the shooting began.                        As we have just stated, Powell attempted to bolster            his  necessity defense  by  introducing evidence  -- his  and            Boykins' testimony -- suggesting that he was  not a possessor            of firearms at the  time of the  shoot-out.  In other  words,            Powell  introduced  evidence that  he  did  not commit  other                                                        ___            similar acts at the relevant point in time.  While other-acts            evidence is not generally  admissible "to prove the character            of a person in order to show action in conformity therewith,"            see  Rule 404(b),  it is  admissible to  rebut a  defendant's            ___                                               _________            affirmative claim that s/he did not commit other similar acts            at the relevant point in time.  See, e.g., Wood,  982 F.2d at                                            ___  ____  ____                                         -15-                                          15            4 ("rebuttal  evidence may  be introduced to  explain, repel,            contradict  or  disprove  an  adversary's  proof")  (citation            omitted); see  also United  States v.  Zarnes, 33  F.3d 1454,                      ___  ____ ______________     ______            1470 (7th Cir. 1994) (evidence of marijuana plants growing in            defendant's vegetable garden admissible to  rebut defendant's            mother's testimony that there were no marijuana plants in the            garden).  The  court therefore  did not err  in allowing  the            jury   to   consider    whether   Powell's    contemporaneous            constructive  possession  of  the  weapons  in  the  Fairlawn            Estates apartment tended to  show that his possession  of the            .44 "was not a question of mere necessity."                        Finally,  the  court's  careful   and  well-crafted            limiting instruction -- which told the jury that the evidence            was not admissible to show that Powell was the kind of person            who possessed  firearms -- largely dissipates  any concern we            might have  had  about  the danger  of  unfair  prejudice  to                                                    ______            Powell.   Simply put, we see no reason why the jury could not            have followed the court's instruction in this case.                        We  therefore reject  Powell's  argument  that  the            admission of the evidence from the Fairlawn Estates apartment            ran afoul of Rules 404(b) and 403.            B.  Impeachment of Powell with his Prior Felony Convictions            B.  Impeachment of Powell with his Prior Felony Convictions            ___________________________________________________________                      Powell next complains that the government's  use of            the number  of his  prior felony convictions  for impeachment            purposes (including its reference to the fact that, in one of                                         -16-                                          16            these cases, Powell was  convicted under a different  name in            another session of the  district court) amounts to reversible            error.  Citing United States v.  Tavares, 21 F.3d 1 (1st Cir.                           _____________     _______            1994)  (en  banc),  Powell  claims that  his  willingness  to            stipulate to the  fact that he had been convicted of a felony            should have precluded the  government from pursuing this line            of questioning.   Powell misreads Tavares  and overlooks Fed.                                              _______            R. Evid. 609(a)(1).                      A  conviction under    922(g)(1) requires  proof of            three elements:  (1) that the defendant knowingly possessed a            firearm;  (2) that the  defendant had "been  convicted in any            court  of  a crime  punishable  by  imprisonment for  a  term            exceeding  one year" at the  time of the  possession; and (3)            that the possession was in or affecting interstate or foreign            commerce.  United States v. Tracy, 36 F.3d 187, 191 (1st Cir.                       _____________    _____            1994).   In Tavares,  we held that  if a defendant  wishes to                        _______            stipulate to  the second  of these three  elements, "evidence            beyond  the  fact of  the  prior  conviction is  inadmissible            absent adequate trial court  findings that its  noncumulative            relevance is sufficiently compelling to survive the balancing            test of Fed. R. Evid. 403."  21 F.3d at 5.  Thus, if there is            such  a  stipulation  in   a     922(g)(1)  prosecution,  the            government  ordinarily  may  not  introduce  evidence of  the            nature or number of prior convictions as part of its case-in-                                                  __ ____ __ ___ ________            chief.  See  id. at 5-6.   We  were careful to  point out  in            _____   ___  ___                                         -17-                                          17            Tavares, however, that "in some cases evidence concerning the            _______            nature  of  the  prior  conviction  will  be  admissible  for            impeachment or  other reasons, despite its  lack of probative            value on the prior element of the crime."  Id. at 6.                                                       ___                      Here, the  government did not introduce evidence of            the  number of Powell's prior felony  convictions in order to            prove  an element of its case; it introduced this evidence to            impeach  Powell after he took  the stand in  his own defense.            _______            We recently have made clear what we implied in Tavares:  that                                                           _______            Tavares does not  control in  the impeachment  context.   See            _______                                                   ___            Tracy, 36 F.3d at  191-92.  Rather, the admissibility  of the            _____            impeachment evidence  must be evaluated under Rule 609(a)(1).            This Rule provides:                           General  Rule.   For the  purpose of                           General  Rule.                      attacking the credibility  of a  witness,                      . . . evidence that a  witness other than                      an accused  has been convicted of a crime                      shall be admitted,  subject to Rule  403,                      if the  crime was punishable by  death or                      imprisonment in excess of one  year under                      the  law  under  which  the  witness  was                      convicted, and evidence  that an  accused                      has been convicted of such  a crime shall                      be  admitted if the court determines that                      the  probative  value  of admitting  this                      evidence outweighs its prejudicial effect                      to the accused.                      The  upshot  is  that  the evidence  at  issue  was            properly  admitted  absent a  showing  that  the trial  court            abused its discretion in determining that its probative value            outweighed its prejudicial  effect to Powell.  See  Tracy, 36                                                           ___  _____            F.3d  at  193  ("We   review  a  district  court's  probative                                         -18-                                          18            value/prejudicial  effect  decision   under  Fed.  R.   Evid.            609(a)(1)  for abuse of discretion.").  Powell has not argued            that there was an  abuse of discretion here; he  has asserted            only that Tavares is controlling.  Our own independent review                      _______            of  the record reveals no abuse of discretion by the district            court.  Indeed, allowing the government only to  inquire into            the  number, and  not the  nature, of  Powell's  prior felony                                       ______            convictions  strikes us as  an eminently fair  way to balance            the government's interest in impeaching Powell  with Powell's            interest in  avoiding the "unique risk  of prejudice" present            whenever a testifying defendant is impeached with evidence of            his/her prior convictions:  "the danger that convictions that            would be  excluded under Fed. R. Evid. 404 will be misused by            a  jury as  propensity  evidence  despite their  introduction            solely  for  impeachment  purposes."      Fed.  R. Evid.  609            advisory committee's note, 1990 amendment; see also Tracy, 36                                                       ___ ____ _____            F.3d at 192.                        We  therefore reject  Powell's claim  of reversible            error in the introduction of this evidence.               C.   Four-Level  Increase for  Possession in  Connection with            C.   Four-Level  Increase for  Possession in  Connection with            _____________________________________________________________            Another Felony Offense            Another Felony Offense            ______________________                      The   district  court  found   at  sentencing  that            Powell's possession  of the  .44 was committed  in connection            with  another felony  offense --  the unjustified  killing of            Stanley Owens.  The court explained its finding as follows:                                         -19-                                          19                           I  find,  first, that  the defendant                      was  engaged  in activity  which involved                      him in an unjustified homicide.  I do not                      credit   the  defendant's   testimony  --                      indeed, I find it to have been perjurious                      --  as to  the manner  in which  he found                      himself  in  possession  of  the  firearm                      here.    Accordingly,  I  find  that  the                      defendant  was  in   possession  of   the                      firearm in connection with another felony                      offense, an  unjustifiable homicide under                      state  law.   I  will  not  get into  the                      particulars  of  how that  may  have been                      charged under  state law, what  degree of                      murder or manslaughter, simply that there                      was  no defense  of self-defense.   There                      was  no defense of  necessity.  There was                      no  defense  for  the  defense  of  other                      persons,  but  rather that  the defendant                      chose to place himself in the middle of a                      shootout   in  which  he   chose  not  to                      withdraw, but to engage.            The court therefore increased Powell's offense level by four.            See    2K2.1(b)(5).    Powell takes  issue  with the  court's            ___            finding, arguing that  there was no  evidence to support  it.            We do not agree with Powell's argument.                      The standard by which  we review a district court's            application of a sentencing guideline depends upon the nature            of the challenge before us.   If a party claims error  in the            court's interpretation of a guideline's meaning or scope, our            review  is plenary.  E.g., United States v. Thompson, 32 F.3d                                 ____  _____________    ________            1, 4 (1st Cir. 1994).  If  a party assigns error to a factual            finding made at sentencing,  we review the finding for  clear            error.  See id. at 4-5.  In so doing, we ask only whether the                    ___ ___            court clearly erred in finding that the government proved the                                         -20-                                          20            disputed fact by a preponderance of the evidence.  See United                                                               ___ ______            States v. Mocciola, 891 F.2d 13, 17 (1st Cir. 1989).            ______    ________                      It  is  important  to  note that  Powell  does  not            challenge  the trial  court's apparent legal  conclusion that            the killing of Stanley  Owens was necessarily unjustified if,                                              ___________            as  the court found, Powell placed himself into the middle of            the shoot-out  instead of  withdrawing.  Cf.  Commonwealth v.                                                     ___  ____________            Kendrick,  218 N.E.2d 408,  414 (Mass.  1966) ("The  right of            ________            self-defence does not accrue to a person until he has availed            all  proper means to avoid physical combat.").  In his brief,            Powell questions only the  factual finding itself (along with            the statement  that "there  was no defense  of self-defense,"            which he treats as a separate finding), asserting that  there            was  no  evidentiary  basis  to support  the  court's  upward            adjustment.   We therefore will not  review the trial court's            legal conclusion, and  will look only to whether the outcome-            determinative finding  -- that Powell chose  to place himself            in  the middle of the shoot-out instead of withdrawing -- was            clearly erroneous.  We think that it was not.                      Central  to  our  decision  is  the  court's  tacit            determination that Powell knew of the possibility of a shoot-            out  prior  to  its  taking  place.    Especially  given  the            applicable   preponderance-of-the-evidence   standard,   this            determination is  sustainable.  Immediately  after seeing the            hooded  men  in  the  Subaru  and  hearing  the  car  rapidly                                         -21-                                          21            accelerate in  reverse, Powell insisted that  Boykins and her            mother get  out of  the area  as quickly as  possible.   This            gives rise to  an inference that Powell  knew serious trouble            might  ensue.  Moreover, Powell conceded on cross-examination            that he thought  the men in the Subaru were gang members, and            that he knew there had been at least one shooting in the area            in the previous week.                       Also  important  to our  conclusion is  the court's            finding that  Powell possessed the .44 prior to the inception            of  the shoot-out (a finding which is implicit in the court's            stated disbelief of  Powell's testimony "as to the  manner in            which he found  himself in possession of  the firearm here").            This finding, too, is  sustainable.  Powell's trial testimony            as to  how he came to  possess the .44 not  only contradicted            the accounts  he gave to  an arresting officer  shortly after            the shoot-out, but it also was inherently improbable.  Powell            testified  that,  instead  of  taking  cover  inside Humboldt            Liquors with Cheney and  Rhodes when shots unexpectedly began            to ring out (as one might have expected him to  do), he began            running and (1) continued to run up the  street towards a man            who had come around the corner and was pointing a gun at him;            (2) closed the  distance between the  man and himself  before            the  man could fire a shot;  (3) disarmed the man, seized his            gun, and chased  him off; and (4) turned on  the run and shot            and  twice hit an assailant who allegedly was shooting at him                                         -22-                                          22            from behind.  The  implausibility of this testimony  alone is            sufficient  to  ground the  court's  contrary  finding.   Cf.                                                                      ___            United  States v. Hadfield, 918 F.2d 987, 999 (1st Cir. 1990)            ______________    ________            (implausibility of a defendant's testimony can be affirmative            evidence  of  guilt),  cert.  denied, 500  U.S.  936  (1991).                                   _____  ______            Furthermore, there  was hearsay evidence in  the Pre-Sentence            Report  indicating that  a  confidential  informant had  seen            Powell  with the  .44  prior to  the  shooting.   Though  not            introduced  at  trial, this  evidence  was  available to  the            district court at sentencing.  See  United States v. Tardiff,                                           ___  _____________    _______            969  F.2d 1283,  1287  (1st Cir.  1992)  (court may  rely  on            hearsay evidence at sentencing).                       What  we have,  then, is an  armed Powell  not only            remaining  at  a  location  where he  knows  a  shoot-out  is            possible,  but also seeking out the two young men (Cheney and            Rhodes)  who were involved in  the initial confrontation -- a            confrontation that prompted Powell to insist that Boykins and            her  mother  leave the  area immediately.    In view  of this            factual scenario, we cannot say that  the court clearly erred            in  finding that  "defendant chose  to  place himself  in the            middle of a shootout  in which he chose not  to withdraw, but            to  engage."   For the  reasons stated  above, this  ends our            inquiry.                                         -23-                                          23                      We  therefore  reject  Powell's  challenge  to  the            district  court's  finding  that  the .44  was  possessed  in            connection with another felony offense.            D.   Three-Level Increase for Possession of the Guns Found in            D.   Three-Level Increase for Possession of the Guns Found in            _____________________________________________________________            the Fairlawn Estates Apartment            the Fairlawn Estates Apartment            ______________________________                      The district court found at sentencing  that Powell            possessed the  guns found in the  Fairlawn Estates apartment.            It  therefore increased  Powell's  offense level  by one  for            possession of the guns, see   2K2.1(b)(1), and by two because                                    ___            one  of  the guns  had an  obliterated  serial number,  see                                                                      ___            2K2.1(b)(4).  Powell challenges  this finding on two grounds.            First, he  contends that  there was insufficient  evidence to            support the finding.  Second, he asserts  that his possession            of these guns was not "part  of the same course of conduct or            common  scheme or plan as  the offense of  conviction," as is            required  by   1B1.3(a)(2).  We are not persuaded by Powell's            arguments.                      As we  already have  explained, the  district court            did  not abuse its discretion in deciding that the jury could            find,  by a preponderance of  the evidence, that  the guns in            the Fairlawn Estates apartment were possessed by Powell.  See                                                                      ___            supra  Section II-A.   While  fine semantic  distinctions may            _____            make it  theoretically possible  for a  court  to have  acted            within the bounds of  its discretion in deciding that  a jury            could make a preponderant finding, and then to have committed            clear error  in making the same  preponderant finding itself,                                         -24-                                          24            we are confident that this is not such a case.   We therefore            rely  on  our  earlier  explanation  in   rejecting  Powell's            sufficiency argument.                      Although Powell's "same course of conduct" argument            has some superficial  appeal --  after all, the  guns in  the            Fairlawn  Estates apartment  did  not play  any  role in  the            Powell's  possession of the .44  on Humboldt Avenue  -- it is            foreclosed  by  circuit  precedent.    In  United  States  v.                                                       ______________            Sanders,  982 F.2d 4 (1st  Cir. 1992), we  analyzed whether a            _______            defendant  who  had  pleaded  guilty  to  being  a  felon  in            possession  of a firearm and  to using or  carrying a firearm            during and in relation  to a drug trafficking crime  could be            subjected  to an  upward  departure for  possessing a  weapon            (used  to shoot  his girlfriend  in the  head) which  was not            named in the  indictment.  See  982 F.2d at 9-10.   Answering                                       ___            this  question required us to consider the scope of the "same            course of  conduct provision"  in   1B1.3(a)(2),  because the            possession  of the  gun used  in the  shooting could  only be            taken into  account at sentencing if  it constituted relevant            conduct under    1B1.3.  Id. at 9.  In answering the question                                     ___            in the affirmative, we said:                             The "same course of conduct" concept                      looks  to  whether the  defendant repeats                      the  same type of  criminal activity over                      time.   It does not require  that acts be                      connected together by common participants                      or by an overall scheme.  Here, defendant                      did  repeat the  same  type  of  criminal                      activity -- he illegally  possessed three                                         -25-                                          25                      or four separate firearms when the victim                      was shot.   We have no difficulty viewing                      the  illegal  possession   of  the   four                      weapons as all part of the same course of                      conduct.            Id. at 9-10 (citation, ellipses, and internal quotation marks            ___            omitted).   In  other words,  the contemporaneous,  or nearly            contemporaneous, possession of uncharged firearms is, in this            circuit,  relevant  conduct in  the  context  of a  felon-in-            possession prosecution.  See id.                                     ___ ___                      In this case, Powell  clearly possessed the guns in            the  Fairlawn  Estates apartment  at  the same  time  that he            possessed the  .44 used  in the shooting.   Accordingly,  the            district  court did not err in finding that the possession of            these weapons was part of  the same course of conduct  as the            offense of conviction.                      We  therefore  reject  Powell's  challenge  to  the            court's  three-level  increase  for  the guns  found  in  the            Fairlawn Estates apartment.                  E.  Two-Level Increase for Obstruction of Justice            E.  Two-Level Increase for Obstruction of Justice            _________________________________________________                      The district  court found at sentencing that Powell            gave perjurious testimony  as to how he came  into possession            of the .44.   The court therefore  increased Powell's offense            level  by two  for  obstruction of  justice.   See     3C1.1.                                                           ___            Powell challenges  this finding  on two  grounds.   First, he            contends that it was  not accompanied by necessary subsidiary            findings that the false  testimony was "concerning a material                                         -26-                                          26            matter" and given "with  the willful intent to  provide false            testimony,  rather than as a result of confusion, mistake, or            faulty  memory."  See United  States v. Dunnigan,  113 S. Ct.                              ___ ______________    ________            1111,  1116 (1993).    Second, he  asserts  that it  was  not            supported by  the evidence.  We need not and do not reach the            merits  of  Powell's arguments  (though  we  observe that  we            already have found there to be sufficient evidence to support            the district court's  implicit finding that Powell  possessed            the .44 prior to the shoot-out.  See supra Section II-C.).                                              ___ _____                      Because we  have affirmed each of  the other upward            adjustments  imposed  by  the  sentencing  court,  see  supra                                                               ___  _____            Sections II-C  and II-D),  Powell's 120-month sentence  would            remain unchanged even if we were to find error in the court's            two-level  obstruction enhancement.   Reducing  Powell's base            offense level by two  would still give him a  guideline range            of  120-150  months.   Thus,  the sentencing  court  would be            without the power to give him a  lower sentence than the 120-            month term of imprisonment he actually received.                      We  therefore decline to address Powell's challenge            to the district court's finding that he obstructed justice by            giving perjurious testimony.            F.  Refusal to Depart Downward            F.  Refusal to Depart Downward            ______________________________                      The district court declined Powell's request  for a            downward departure because he allegedly committed the offense            of conviction "in order to avoid a perceived greater harm" --                                         -27-                                          27            injury  to himself  or  others.   See    5K2.11.   The  court                                              ___            explained its decision as follows:                           And with respect to objection number                      31, I understand that  to be the argument                      made by the  defendant here for  downward                      departure in this case.   I must indicate                      that  the  defendant's actions  here were                      not those of a good samaritan  seeking to                      protect  the community  and the  lives of                      other persons and it  strikes me as not a                      grounds [sic] for  downward departure  in                      this setting.            While acknowledging  that we  have no jurisdiction  to review            discretionary refusals to depart  downward, see, e.g., United                                                        ___  ____  ______            States v. Lewis, 40 F.3d 1325, 1345 (1st Cir. 1994) (court of            ______    _____            appeals lacks jurisdiction to review district court's refusal            to  depart downward  so  long  as  court  was  aware  of  its            authority to do so),  Powell seizes on the court's use of the            term "good samaritan"  and asserts that  the court failed  to            understand that  it could  depart if it  found that  Powell's            possession  of the firearm was prompted by the need for self-                                                                    ____            preservation.  Powell's argument is unconvincing.                      As we have  already explained,  the district  court            clearly  believed that Powell possessed the  .44 prior to the            inception  of the shoot-out.   See supra Section  II-C.  This                                           ___ _____            necessarily means that Powell possessed the .44  prior to the            time  when  any  need  for self-defense  would  have  arisen.            Accordingly,  the court  could not  have found  that Powell's            illegal  possession  was  prompted  by the  need  to  protect            himself.    This  leads  us  to  conclude  beyond  any  doubt                                         -28-                                          28            whatsoever that the court did not misunderstand its departure            authority  under   5K2.11;  it merely decided  that the facts            did  not warrant a departure  in this instance,  and used the            term  "good  samaritan"  a  bit  loosely  in  explaining  its            decision.                      We  therefore  lack   jurisdiction  over   Powell's            challenge to the court's decision not to depart downward.                                         III.                                         III.                                         ____                      For  the reasons stated,  we affirm  the conviction                                                   ______            and sentence of defendant Charles Powell.                                         -29-                                          29
