
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1046                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                       JOSEPH BREWSTER, a/k/a PATRICK BREWSTER,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                              _________________________                                        Before                        Selya, Cyr and Stahl, Circuit Judges.                                              ______________                              _________________________               Richard K. Corley on brief for appellant.               _________________               Edwin  J.  Gale,  United  States  Attorney,  and  Gerard  B.               _______________                                   __________          Sullivan,  Assistant United  States  Attorney, on  brief for  the          ________          United States.                              _________________________                                    July 28, 1993                              _________________________                    SELYA, Circuit Judge.  After selling drugs and a gun to                    SELYA, Circuit Judge.                           _____________          an  undercover federal agent,  defendant-appellant Joseph Patrick          Brewster pled guilty to a two-count indictment charging  him with          distribution of cocaine,  see 21 U.S.C.    841(a)(1) (1988),  and                                    ___          with being a  convicted felon in possession of a  firearm, see 18                                                                     ___          U.S.C.    922(g) (1988).  Brewster appeals from the imposition of          sentence, claiming that the district court impermissibly inflated          the  offense level applicable  to the crimes  of conviction, and,          further, that the government  violated his rights by manipulating          a crucial sentencing factor.  We affirm.          I.  BACKGROUND          I.  BACKGROUND                    We  take  the  relevant  facts  from  the  pre-sentence          investigation  report  (PSI Report)  and  the  transcript of  the          sentencing  hearing.  See,  e.g., United  States v.  Connell, 960                                ___   ____  ______________     _______          F.2d 191, 192-93 (1st Cir. 1992).                    Over  the  course of  a  month,  Special Agent  Matthew          Horace  of the federal  Bureau of Alcohol,  Tobacco and Firearms,          acting  in an  undercover  capacity, met  with appellant  several          times to  discuss the possibility of  buying drugs and guns.   On          June  3, 1992, their discussions came to fruition:  Brewster sold          Agent  Horace a  small amount  of crack  cocaine (for  $20), and,          within  an hour of that  transaction, also sold  him an automatic          weapon  (for $100).  Soon  thereafter, a grand  jury returned the          indictment that undergirds this appeal.                    On October 27, 1992, appellant entered a plea of guilty          to  both  counts of  the indictment.    The government  agreed to                                          2          recommend  a  prison  term  at  the  low  end  of  the  guideline          sentencing  range  (GSR),  but   without  representing  what  the          applicable range  might be.   In accepting  Brewster's plea,  the          district court  (prophetically,  as matters  turned  out)  warned          appellant  that it would be impossible to predict the severity of          his sentence until the court examined the PSI Report and computed          the GSR.                    In  mid-December, the  PSI  Report emerged.   Based  on          Agent  Horace's assertion  that Brewster  sold him  the gun  with          reason  to  believe that  it  would  be used  to  protect a  drug          operation,   the  probation  officer   recommended  a  four-level          increase  in appellant's  offense  level pursuant  to U.S.S.G.             2K2.1(b)(5).1     Seeking   to   forfend   application   of   the          enhancement, appellant propounded a written objection challenging          the  recommendation's  factual  basis.    He  also  requested  an          evidentiary hearing.                    The  district  court granted  the  latter  request, and          convened a hearing on January 7, 1993.  Appellant claimed that he          had been blindsided because the government had not informed  him,                                        ____________________               1The guideline provides:                    If   the  defendant  used  or  possessed  any                    firearm  or  ammunition  in  connection  with                    another  felony  offense;  or   possessed  or                    transferred  any  firearm or  ammunition with                    knowledge, intent, or  reason to believe that                    it would be used  or possessed in  connection                    with another felony offense, increase by four                    levels.          U.S.S.G.   2K2.1(b)(5) (Nov. 1992).                                          3          prior  to  his  entry  of  a  guilty  plea,  that  facts  existed          sufficient to  ground an  enhancement under  section 2K2.1(b)(5).          The judge thereupon offered appellant the opportunity to withdraw          his  plea.2   After consulting  with counsel,  appellant declined          the judge's invitation.  The hearing proceeded.                    Agent  Horace testified  along the lines  adumbrated in          the PSI  Report.  He stated,  in essence, that  he told appellant          from the  outset both of his  aspiration to become a  drug dealer          and of  his need for a weapon  to facilitate that nefarious plan.          After cross-examining Horace, appellant renewed  his objection to          the use of Horace's testimony.  The  court again proposed that he          retract  his plea.  When appellant  demurred, the court overruled          his  objection.   Appellant  then  testified to  his  own behoof,          denying that he knew of any link between  the weapon and Horace's          planned drug trafficking at any time prior to the sale.                    Upon completion of the hearing, the district court made          an  explicit  finding  that   appellant  sold  the  firearm  with          knowledge of the buyer's  intended (narcotics-related) use of the          weapon.   The court applied U.S.S.G.    2K2.1(b)(5) and sentenced          Brewster to a  prison term of  fifty-one months (the high  end of          the resultant GSR).  This appeal followed.          II.  PROPRIETY OF THE ENHANCEMENT          II.  PROPRIETY OF THE ENHANCEMENT                    Appellant challenges the district court's deployment of                                        ____________________               2To its credit, the government forthrightly conceded that it          had  not  specifically  informed   appellant  of  Agent  Horace's          detailed  version of the relevant events at any time prior to, or          during, the change-of-plea hearing.                                          4          U.S.S.G.    2K2.1(b)(5)  on two  principal bases.   We  find both          facets of the challenge to be unpersuasive.                       A.  Reliance on Undisclosed Information.                       A.  Reliance on Undisclosed Information.                           ___________________________________                    Appellant argues that a sentencing court cannot rely on          evidence not  known to a  defendant at  the time  he tenders  his          plea.   We disagree.  Absent  bad faith   and  the district court          found  no bad  faith in  this instance    the  critical time  for          disclosure of  sentence-related information  is not prior  to the          taking  of a plea, but prior to  sentencing.  See, e.g., Burns v.                                                        ___  ____  _____          United  States, 111 S. Ct. 2182, 2186 (1991) (discussing the need          ______________          for  "full adversary testing" of facts  relevant to a defendant's          sentence);  United States  v. Berzon,  941 F.2d  8, 18  (1st Cir.                      _____________     ______          1991)  (explaining  that  a  sentencing court  may  only  rely on          information  in   determining  a  defendant's  sentence   if  the          defendant has been  given notice  of the information  and a  fair          opportunity to meet it); United States v. Curran, 926 F.2d 59, 63                                   _____________    ______          (1st Cir. 1991) (holding that a defendant should be given advance          warning of, and an opportunity to challenge, information used  to          influence  severity of  sentence); United  States v.  Picard, 464                                             ______________     ______          F.2d 215, 220 & n.9 (1st Cir. 1972) (requiring that defendant and          counsel  receive some  indication  of the  information which  may          influence  the sentencing decision  to ensure  that the  right to          speak "in mitigation of punishment" is meaningful); see also Fed.                                                              ___ ____          R. Crim. P. 32.                    The district court scrupulously honored  this principle                                          5          in the case at hand.  The PSI Report discussed  all the pertinent          information  in  satisfactory  detail.     Through  that  medium,          appellant  received  ample  advance  warning  of  Agent  Horace's          allegations (the PSI Report was made available to him on December          18,  1992,  approximately  three  weeks  before  sentencing  took          place).  He had an opportunity to challenge the allegations at an          evidentiary  hearing.3  He exercised the opportunity.  No more is          exigible.                    Relatedly, appellant  argues that it  was fundamentally          unfair  to  "spring" the  information on  him  only after  he had          entered a guilty plea.  But, although  sandbagging is never to be          condoned,  we see no unfairness here.  Appellant was a percipient          participant in  the  negotiations  with  Horace  and,  therefore,          chargeable  with  knowledge  of  what was  said.    Moreover, the          district court repeatedly offered him the opportunity to withdraw          his plea  after he had read  the PSI Report and  fully acquainted                    _____          himself  with the adverse information.  Having freely elected not          to  rescind his plea, appellant can scarcely be heard to complain          that  the timing of the prosecution's disclosure placed him at an          unfair disadvantage.                           B.  Sufficiency of the Evidence.                           B.  Sufficiency of the Evidence.                               ___________________________                                        ____________________               3We  note that,  in  convening an  evidentiary hearing,  the          district court, solicitous of appellant's rights and sensitive to          his predicament, went the  extra mile.  Cf., e.g.,  United States                                                  ___  ____   _____________          v. Tardiff, 969  F.2d 1283, 1286 (1st Cir. 1992)  (holding that a             _______          defendant is not  automatically, or even  usually, entitled to  a          full-blown evidentiary hearing at the time of sentencing); United                                                                     ______          States  v.  Shattuck, 961  F.2d  1012,  1014-15  (1st Cir.  1992)          ______      ________          (similar).                                          6                    The  next  question  concerns the  sufficiency  of  the          evidence  relied upon  by  the lower  court  in applying  section          2K2.1(b)(5).    Examining a  district  court's  application of  a          sentencing  guideline calls a bifurcated  process into play:  the          court of appeals reviews the guideline's legal  meaning and scope          de novo,  see United States  v. St. Cyr,  977 F.2d 698,  701 (1st          __ ____   ___ _____________     _______          Cir.  1992),  but  reviews   the  sentencing  court's   factbound          determinations only to screen  out manifestations of clear error.          See id.          ___ ___                    As  to meaning  and  scope, the  guideline in  question          demands a four-level upward  adjustment when the sentencing court          finds  that a  defendant transferred  a firearm  with "knowledge,          intent, or reason to believe" that it "would be used or possessed          in  connection with another felony."  U.S.S.G.   2K2.1(b)(5).  In          United States v. Sanders, 990 F.2d 582, 585 (10th Cir. 1993), the          _____________    _______          court,  observing the  dearth  of expository  comment anent  this          guideline,  concluded that the  Sentencing Commission promulgated          section  2K2.1(b)(5) in an  "explanatory vacuum"  and, therefore,          adopted  a  plain-meaning approach  to  its  interpretation.   We          follow  the Tenth Circuit's lead.   The settled  rule that courts          should  strive to apply the guidelines as written, see Stinson v.                                                             ___ _______          United States, 113  S. Ct.  1913, 1915 (1993);  United States  v.          _____________                                   _____________          Jones, ___ F.2d  ___, ___ (1st Cir. 1993)  [No. 93-1189, slip op.          _____          at 6], has a necessary corollary:  in deciphering the guidelines,          words in common usage, not specially  defined, should be accorded          their ordinary meaning.                                          7                    Giving  the phrase  "in connection  with" its  ordinary          meaning  leaves no doubt but  that the dispositive  issue in this          case  turns on  credibility.   If Agent  Horace's recital  of the          relevant events  is accurate,  then appellant  sold the gun  with          reason  to believe  that  his  customer  planned  to  use  it  in          connection with  drug trafficking, and a  sufficient nexus exists          between the weapon and the drug trafficking to warrant imposition          of the  enhancement.   If, however, Brewster's  account is  true,          then  the  existence of  an adequate  nexus  becomes a  much more          dubious  proposition.   Since  appellant's  sufficiency challenge          reduces  to the  bald assertion  that Agent  Horace's inculpatory          testimony was  not worthy of credence    a question of  fact   we          limit  appellate review  to  the search  for  clear error.4    We          discern none.                    The conflict in the evidence could scarcely be clearer.          On  one hand,  Brewster implored  the court  below to  credit his          version of  the events   that the only time he heard Agent Horace                                        ____________________               4To be sure, appellant also argues that, as a matter of law,          section 2K2.1(b)(5) does not contemplate enhancing a  defendant's          sentence  based  only  on  the uncorroborated  testimony  of  one          person.   However,  he  cites no  meaningful  authority for  this          proposition,  and it  runs counter  to all  the usual  rules that          apply in the  sentencing phase of a  criminal trial.   See, e.g.,                                                                 ___  ____          McMillan v. Pennsylvania, 477 U.S. 79, 91-92 & n.8 (acknowledging          ________    ____________          that   "[s]entencing  courts   have   always   operated   without          constitutionally imposed  burdens of proof"  when considering the          level of a defendant's sentence);  United States v. Tardiff,  969                                             _____________    _______          F.2d  1283, 1287  (1st Cir. 1992)  (stating that  "the sentencing          court has broad discretion  to determine what data is, or is not,          sufficiently  dependable  to  be  used  in  imposing  sentence");          U.S.S.G.    6A1.3  (explaining  that, in  sentencing, courts  may          consider  any  relevant  piece   of  information  that  possesses          "sufficient  indicia  of  reliability  to  support  its  probable          accuracy").                                           8          discuss  his intended  use  for the  weapon  was in  court,  and,          court  to believe Agent Horace   who testified that Brewster knew          of  his intentions, no reasonable person  would believe the self-          furthermore, he adds on appeal that even if the agent had boasted          aggrandizing  pipe-dreams of a person who bought a mere $20 worth          of crack cocaine.   On the other hand, the  prosecution urged the                                          9          from the deal.  The  government placed this layer of frosting  on          the  cake,  appellant says,  for  the  sole  purpose of  bringing          the fact.  The district judge heard and saw the two protagonists.          who buttressed this testimony  with notes he had made  soon after          lie  primarily within the realm  of the district  court.  See St.                                                                    ___ ___          judgment.          prerogative   indeed, his duty   to  make this sort of evaluative          He   chose  to  credit  Agent  Horace's  version.    It  was  his          sentencing proceedings, as elsewhere,  credibility determinations                    For all intents and purposes, that ends the matter.  In          his plans  for the weapon from the start of the negotiations, and          basis  on which we can overturn the district court's credibility-          based finding  of fact.  After all, "when there are two plausible          and then, at the  time of sale, when it  was too late to  retreat          III.  SENTENCING FACTOR MANIPULATION          III.  SENTENCING FACTOR MANIPULATION          view cannot be clearly erroneous."  Id.                                               ___          views  of the record, the sentencing court's adoption of one such          his intended use  for the firearm at  all, he did so only  once                      Appellant also contends that,  if Agent Horace spoke of          Cyr, 977  F.2d at 706.   So it is  here.  There is  no principled          ___          section 2K2.1(b)(5)  into play  and, thus, increasing  his likely          sentence.   This  boils  down to  a  claim of  sentencing  factor          manipulation.5    See Connell,  969  F.2d  at 194-97  (discussing                            ___ _______          criteria for potential claims of sentencing factor manipulation).                    We   have  previously   expressed  our   concern  that,          particularly in  sting operations, "exploitative  manipulation of          sentencing factors  by government agents [may sometimes] overbear          the  will of  a person  predisposed only  to committing  a lesser          crime."  Id.  at 196.  That is an abiding  concern   but it is of                   ___          only marginal relevance here.   The facts, as the  district court          supportably found  them, see supra Part  II(B), belie appellant's                                   ___ _____          thesis.  They do not so much as portray a case where, late in the          day, an  undercover  agent  deliberately  raised  the  sentencing          stakes  in order to  obtain a stiffer sentence  for a criminal he          was  poised to  arrest.    Rather,  Agent  Horace's  testimony             credited,  as we  have said,  by the  district court    makes  it          abundantly clear  that appellant knew of  his customer's proposed          use for a weapon from the outset of their negotiations.  When, as          now,  an offense-level  enhancement  results from  a matter  that          formed part  and parcel  of the  original negotiations  between a          government  agent  and  his  target,  and  the  criminal  venture          proceeds on that basis, a claim of sentencing factor manipulation                                        ____________________               5Appellant  describes the  government's alleged  activity as          sentence  entrapment.   As  we have  pointed  out, however,  such          phraseology  tends  to  be  misleading.     We  prefer  the  term          "sentencing  factor  manipulation,"  which  places  the focus  of          judicial inquiry where it belongs   on the  government's activity            not on whether the defendant would have committed the crime but          for the government's influence.  See Connell, 969 F.2d at 194.                                           ___ _______                                          10          will  not lie.  Accordingly,  we reject this  prong of Brewster's          appeal.          IV.  CONCLUSION          IV.  CONCLUSION                    We need go no further.  Because it clearly appears that          the  district court imposed a lawful sentence in a fair, unflawed          proceeding,  based  on  findings  of fact  that  derive  adequate          support from the record, we summarily affirm the judgment below.                    Affirmed.  See 1st Cir. Loc. R. 27.1.                    Affirmed.                    ________   ___                                          11
