
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1018                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 BRIAN D. STURTEVANT,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Peter B. Krupp, Federal Defender Office, for appellant.            ______________            Sheila W.  Sawyer, Assistant  United  States  Attorney, with  whom            _________________        Donald K. Stern, United  States Attorney, was on brief  for the United        _______________        States.                                 ____________________                                   August 10, 1995                                 ____________________                 Per Curiam.   On  February 7, 1992,  four Boston  police                 __________            officers patrolling the Cathedral Housing Projects,  observed            appellant  Brian Sturtevant striking  Eric Randolph about the            head.   After separating  the two  individuals, the  officers            searched Sturtevant and discovered a loaded sawed-off shotgun            concealed  inside one leg of his  pants.  They also found two            shotgun  shells in  Sturtevant's right  coat  pocket and  one            "hit" of crack cocaine inside his glove.                   Sturtevant  was indicted on  federal charges of  being a            felon in possession of a  firearm, 18 U.S.C.   922(g)(1), and            possessing an unregistered firearm, 26  U.S.C.   5861(d).  He            was also charged in state  court with assault and battery and            possession of a controlled substance.  On September 28, 1994,            Sturtevant  pled  guilty  to  the  federal  charges  and  was            subsequently sentenced to 72 months' imprisonment.                  The  presentence  report   recommended  that  Sturtevant            receive  a  four-level  increase in  his  base  offense level            pursuant to  U.S.S.G.   2K2.1(b)(5), which  requires a  four-            level enhancement "[i]f  the defendant used or  possessed any            firearm  or ammunition  in  connection  with  another  felony            offense . .  . ."  The  probation officer concluded  that the            enhancement  was warranted  because Sturtevant  had possessed            the sawed-off shotgun  during his  altercation with  Randolph                                         -2-                                         -2-            and--according  to   Randolph's  initial  statement   to  the            police1--had  threatened  to  shoot  Randolph  prior  to  the            fight.                   At  sentencing,   Sturtevant  opposed   the  recommended            enhancement,  and submitted an affidavit from Randolph, dated            November 22, 1994, in which he said that Sturtevant had never            threatened him or mentioned a gun.   The government countered            with an  affidavit from  Randolph, dated  November 28,  1994,            saying that he (Randolph)  did not recall making  the precise            statements  recounted  in  the  police  report,  but  he  did            remember  telling the arresting  officer that (1)  he thought            that Sturtevant must have been  carrying a gun to risk coming            into his drug territory and punching him in the face, and (2)            Sturtevant said that he was  now going to be "pumping," i.e.,                                                                    ____            selling drugs, in Randolph's area.                 At Sturtevant's request,  the district  judge granted  a            continuance  until December 16,  1994, but indicated  that an            evidentiary  hearing,  also  requested   by  Sturtevant,  was            probably unnecessary.   On  December 16,  1994, the  district            court applied  the four-level  enhancement, finding that  the            possession  of the  shotgun  played  a  role  in  emboldening            Sturtevant's actions towards  Randolph.  The court  said that                                            ____________________                 1The  officer, who  is now  deceased,  reported (in  the            police report and  before the grand jury) that  Randolph said            that  Sturtevant  approached  him  prior  to  the  fight  and            declared, "get the fuck out of here, I'm taking over the drug            trade now, and if you fuck with me, I'm going to shoot you."                                         -3-                                         -3-            it gave little weight to Randolph's statements, but explained            to Sturtevant that  he made these findings  "because you were            out there on the street  with a deadly weapon; it might  have            been in your pocket, but it was there in reserve."                 The  only issue on appeal is  whether the district court            abused  its  discretion  in failing  to  hold  an evidentiary            hearing before levying the  four-level enhancement.  Although            Sturtevant says  that an  evidentiary hearing  was needed  to            test Randolph's credibility,  he has never directly  disputed            Randolph's  claim--twice  repeated  and never  repudiated  by            Randolph--that  Sturtevant started the fight.  There was also            unrefuted evidence, independent of  Randolph, that Sturtevant            actually  possessed  a  loaded sawed-off  shotgun  during his            assault.    The  assault  was  a  felony  offense  under  the            guidelines.   U.S.S.G.   2K2.1  comment. (n.7);  M.G.L.A. ch.            265,   13A.                 Given  the broad  reach  of  the  "in  connection  with"            requirement, United States  v. Thompson,  32 F.3d  1, 3  (1st                         _____________     ________            Cir. 1994), we think that the  carriage of the gun during the            assault satisfied the requirement of section 2K2.1(b)(5) that            a firearm be  "used or possessed  . . .   in connection  with            another  felony  offense .  .  .  ."   The  courts  have held            repeatedly that the presence of a readily available weapon in            a  location containing drugs is  enough.  E.g., United States                                                      ____  _____________            v.  McFadden, 13  F.3d 463,  465-66 (1st  Cir. 1994).   Here,                ________                                         -4-                                         -4-            there  might be enough  undisputed evidence for  the district            court  to  conclude  that this  assault  was  associated with            drugs.   Still,  if the  enhancement  turned on  Sturtevant's            purpose or alleged threats, perhaps a hearing might have been            required.                  But we  think that on  the present facts the  motive for            the assault does not matter.  Sturtevant  carried the shotgun            on  his person  during his  assault.  The  connection between            that  crime (the  assault) and the  gun seems  to us  no less            close than the connection between a drug hideout and gun.  In            each instance, the weapon provides an added sense of security            and has a substantial potential for use in the course of  the            particular crime in question.2   This is not  the case of  an            accountant  who, while forging checks, happens  to have a gun            in the desk drawer.                 In  short, a  hearing  would  have  served  no  purpose.            Sturtevant was free to testify but made no request  to do so,            and  Randolph's testimony would  not have altered  the result            even if he had said that no threats were made and  the reason            for the assault was a mystery.                   Affirmed.                 ________                                            ____________________                 2Compare United States v. Eaton, 890 F.2d 511,  512 (1st                  _______ _____________    _____            Cir.  1989), cert. denied,  495 U.S. 906  (1990) (drug case),                         _____ ______            with  United States  v. Routon,  25 F.3d  815, 819  (9th Cir.            ____  _____________     ______            1994) (car theft).  This  court cited Routon with approval in                                                  ______            United States v. Thompson, 32 F.3d 1, 6 (1st Cir. 1994).            _____________    ________                                         -5-                                         -5-
