           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0183P (6th Cir.)
                    File Name: 00a0183p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                 ;
                                  
 UNITED STATES OF AMERICA,
                                  
           Plaintiff-Appellee,
                                  
                                  
                                     No. 98-6522
           v.
                                  
                                   >
 CHESTER L. ADAMS,                
         Defendant-Appellant. 
                                 1
       Appeal from the United States District Court
   for the Western District of Tennessee at Memphis.
  No. 97-20267—Julia S. Gibbons, Chief District Judge.
                    Argued: March 6, 2000
                Decided and Filed: June 1, 2000
         Before: SILER and GILMAN, Circuit* Judges;
                 O’MALLEY, District Judge.
                      _________________
                           COUNSEL
ARGUED: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for

    *
      The Honorable Kathleen M. O’Malley, United States District Judge
for the Northern District of Ohio, sitting by designation.

                                  1
2    United States v. Adams                       No. 98-6522      No. 98-6522                     United States v. Adams     11

Appellant. Tony R. Arvin, ASSISTANT UNITED STATES                  payment would be impossible. Id. at 982. Chester, on the
ATTORNEY, Memphis, Tennessee, for Appellee.                        other hand, was only twenty-nine years old at the time of his
ON BRIEF: Stephen B. Shankman, OFFICE OF THE                       sentencing and has a life sentence during which to pay off his
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                            $23,890 restitution obligation through the Federal Bureau of
DISTRICT OF TENNESSEE, Memphis, Tennessee, for                     Prisons’ Inmate Financial Responsibility Program. Under
Appellant. Tony R. Arvin, ASSISTANT UNITED STATES                  these circumstances, the amount of the restitution order does
ATTORNEY, Memphis, Tennessee, for Appellee.                        not constitute an abuse of the district court’s discretion.
                    _________________                                                 III. CONCLUSION
                        OPINION                                      For all of the reasons set forth above, we REVERSE the
                    _________________                              district court’s sentencing as to count twenty-six and
                                                                   AFFIRM as to the remainder of the judgment, sentence, and
   RONALD LEE GILMAN, Circuit Judge. Chester Adams                 restitution order.
and his brother, Terry Adams, committed a series of
carjackings and armed robberies in Memphis, Tennessee
during August and September of 1996. (For the sake of
simplicity, this opinion will refer to the two brothers by their
first names.) On June 25, 1998, a federal grand jury in the
Western District of Tennessee returned a twenty-six count
indictment against Chester, charging him with carjacking,
robbery, attempted robbery, and possessing firearms and
ammunition as a convicted felon. Chester was tried and
convicted on all counts. The district court sentenced him to
a term of life plus 205 years, and he was ordered to pay
$23,890 in restitution. In this appeal, Chester raises four
challenges to his conviction, sentence, and restitution order.
For the reasons set forth below, we REVERSE the district
court’s sentencing on one of the four counts of firearms
possession and AFFIRM as to the remainder of the judgment,
sentence, and restitution order.
                    I. BACKGROUND
A. Factual background
  The first known crime committed by the Adams brothers
was a carjacking on August 15, 1996, during which they held
up the driver of a black 1996 Lexus at a self-serve carwash in
midtown Memphis. The brothers next attempted to rob a
Kroger grocery store. Early in the morning of August 26,
10   United States v. Adams                      No. 98-6522      No. 98-6522                     United States v. Adams      3

finding, we affirm Chester’s three-level sentencing               1996, with the store still closed, they climbed atop the
enhancement.                                                      building and began cutting a hole through the roof. They
                                                                  were armed with 9-millimeter handguns and were carrying
D. Restitution order                                              police radio scanners. As they were cutting the hole,
                                                                  however, it began to rain, and the water leaking through the
  Chester finally argues that, pursuant to the recent case of     hole set off the store’s alarm. At that point, the Adams
United States v. Dunigan, 163 F.3d 979 (6th Cir. 1999), the       brothers abandoned their plan.
district court erred in ordering him to pay $23,890 in
restitution. This court in Dunigan held that a district court        On August 29, 1996, the brothers successfully carried out
must consider “the amount of the loss sustained by any victim     a similar plan at the nearby Walgreens drugstore. They cut a
as a result of the offense, the financial resources of the        hole in the store’s roof before the store opened and Terry
defendant, the financial needs and earning ability of the         descended into the store. Chester waited across the street and
defendant and the defendant’s dependents, and such other          served as a look-out. When the manager and bookkeeper
factors as the court deems appropriate” when ordering             arrived, Terry forced them to open the store’s safe at
restitution. Id. at 981. Chester contends that “[t]he district    gunpoint. He then tied up the employees and fled with the
court made no finding that the defendant had even a minimal       money.
chance to pay almost $24,000 in restitution.”
                                                                    The Adams brothers’ next crime was another carjacking on
   We review de novo whether a restitution order is legally       the night of August 31, 1996, during which they held up a
permissible. See Dunigan, 163 F.3d at 981. If a restitution       woman and stole her Nissan Pathfinder. Then, on
order is appropriate, the amount of restitution will not be       September 3, 1996, the brothers robbed an employee of
disturbed unless the district court abuses its discretion. See    Simply Six Fashions as she was attempting to deposit the
id. We conclude that the district court in the present case did   store’s receipts at a bank in midtown Memphis.
not abuse its discretion in fixing the amount of restitution.
First, the burden is on the defendant to demonstrate that a         Two days later, the brothers entered the EZ Pawn Shop in
restitution order far exceeds his resources and earning           Memphis wearing masks and carrying handguns. They
potential. See id. at 982; see also United States v. Frost, 914   sprayed the shop’s employees and customers with pepper
F.2d 756, 774 (6th Cir. 1994) (holding that a district court      spray and stole twelve handguns from the store.
need not make specific findings concerning a defendant’s
financial condition). Chester has not made such a showing in         At approximately 2 a.m. on the morning of September 12,
this case. Second, a restitution order is permissible even if     1996, Memphis Police Officer Donna Roach spotted the
the defendant lacks the present ability to pay. See United        stolen black Lexus in the parking lot of an Exxon Tigermart.
States v. Blanchard, 9 F.3d 322 (6th Cir. 1993).                  Officer Roach saw Terry get into the Lexus with Chester. She
                                                                  then pulled up beside the vehicle to get a better look at the
  The fact situation presented in Dunigan was unusual and is      two individuals in the front seat. At the time, Officer Roach
distinguishable from that of the present case. In Dunigan the     was in plainclothes and was driving an unmarked car. When
district court ordered the indigent defendant, whose prior        the brothers drove off, Officer Roach followed them. At first,
income had been under $2,000 a month, to pay the relatively       the brothers drove slowly, making numerous turns onto side
enormous sum of $311,605 within the three-year period of his      streets. They then picked up speed, while still making many
supervised release. See Dunigan, 163 F.3d at 980. On              turns. Officer Roach followed throughout. Finally, the
appeal, this court found that, “absent a miracle,” such a         brothers pulled into the driveway of a house and stopped.
4    United States v. Adams                     No. 98-6522      No. 98-6522                      United States v. Adams        9

Officer Roach parked her car a block away. Chester and           three counts of firearms possession because there was no
Terry then opened fire on Officer Roach’s car from inside the    showing that the guns were stored or acquired separately).
Lexus, firing ten to fifteen shots. Officer Roach ducked         This will not affect Chester’s overall sentence, however,
beneath her dashboard, quickly backed away, and called for       because Chester was sentenced to concurrent life terms on
assistance.                                                      these four counts.
  Police officers found the Lexus about a half hour later. It    C. Sentencing as to count fourteen—enhancement for
had been set on fire in an abandoned lot. The officers              assaulting a police officer
discovered a Ruger 9-millimeter handgun at the right rear tire
of the car. Later in the day on September 12, 1996, the            Chester received a three-level enhancement on count
Adams brothers carjacked a Ford Taurus at a convenience          fourteen (one of the firearm possession counts) for assaulting
store in midtown Memphis. The next day, they robbed the          Officer Roach by firing at her car on the night of September
manager of a Fox Photo store as he was entering a midtown        12, 1996. The Sentencing Guidelines provide for an
Memphis bank to make a deposit. Then, on September 20,           enhancement if the defendant, “knowing or having reasonable
they committed two more armed carjackings, stealing a            cause to believe that a person was a law enforcement or
Honda Civic and a Toyota Camry.                                  corrections officer, assaulted such officer in a manner creating
                                                                 a substantial risk of serious bodily injury.” U.S.S.G.
  On the following morning, September 21, the brothers           § 3A1.2(b). Chester argues on appeal that he did not know or
robbed an Ace America Cash Express store. As the store’s         have reasonable cause to believe that Officer Roach, who was
clerk was unlocking the door, Chester grabbed her and pulled     not in uniform and was driving an unmarked car on the night
her inside the store. He then forced her, at gunpoint, to open   of September 12, was a law enforcement officer.
the store’s safe.
                                                                    The district court found that Chester did know or have
  On the night of September 25, police officers observed the     reasonable cause to believe that Officer Roach was a police
Adams brothers in midtown Memphis. When approached by            officer. This finding was based on a “whole sequence of
the officers, the two split up and ran. Chester was caught       events,” during which Officer Roach first pulled up alongside
shortly thereafter by two of the officers. As he ran, he         the Adams brothers’ car and watched them, then pursued
discarded a maroon shaving kit bag that was found to contain     them along a circuitous route for an extended time, and came
the keys to two of the carjacked vehicles and approximately      to a stop a block away when the brothers turned into a
three thousand dollars in cash wrapped in an Ace America         driveway. Finally, the district court noted that the brothers
Cash Express wrapper. Officers also found a Jennings Bryco       fired ten to fifteen shots at Officer Roach’s car.
9-millimeter handgun and a police scanner in a weeded area
that Chester had run through moments before being captured.         A district court’s finding at a sentencing proceeding that the
The handgun was later determined to be one of the guns taken     defendant knew or had cause to believe that he was assaulting
in the EZ Pawn Shop robbery.                                     a law enforcement officer will not be disturbed unless it is
                                                                 clearly erroneous. See United States v. Farrow, 198 F.3d 179,
  Other officers chased after Terry. When Terry turned and       196 (6th Cir. 1999). After observing Officer Roach’s
pointed a gun at a pursuing officer, the officer shot and        investigative behavior and then opening fire on her vehicle,
wounded him. Terry was found to have a 9-millimeter              Chester cannot plausibly maintain that he reasonably believed
handgun, a police scanner, and the driver’s license of one of    Officer Roach to simply be an inquisitive civilian. Because
the carjacking victims in his possession. The next day, on       the totality of the circumstances supports the district court’s
8     United States v. Adams                        No. 98-6522      No. 98-6522                      United States v. Adams       5

review this omission under the “plain error” standard. See           September 26, 1996, police detectives questioned Chester
United States v. Christian, 786 F.2d 203, 213 (6th Cir. 1986)        after reading him his Miranda rights. Chester admitted that
(holding that “[a]ny objection to lack of instruction was            he had participated in the carjackings and robberies detailed
waived by defendant’s failure to make timely request for a           above. He also admitted to shooting at Officer Roach.
limiting instruction” and proceeding to review the omission
for “plain error affecting substantial rights”). “Plain error           Chester and Terry escaped from custody several months
requires a finding that, taken as a whole, the jury instructions     later. In the early morning hours of September 7, 1997, police
were so clearly erroneous as to likely produce a grave               officers spotted two men in downtown Memphis driving a
miscarriage of justice.” See United States v. Piccolo, 723           GMC pickup truck that had been reported stolen in a
F.2d 1234, 1238 (6th Cir.1983).                                      carjacking a few days earlier. A high speed chase ensued. At
                                                                     one point, the pickup truck slowed down momentarily and
   In light of the fact that both the indictment and the evidence    Chester jumped out from the passenger side of the vehicle.
demonstrated incontestably that the firearms charged in              The pickup then sped off, eluding the police. The police
counts thirteen, fourteen, and twenty-five were possessed in         apprehended Chester after a brief chase. When he was
separate places and at separate times, we do not believe that        caught, Chester was wearing a high quality bullet-proof vest
the district court’s failure to instruct as to separate possession   and a handgun holster that held a loaded handgun clip
constituted a grave miscarriage of justice. See United States        containing .380 caliber ammunition. Officers found a .380-
v. Bonavia, 927 F.2d 565, 570-71 (11th Cir. 1991) (holding           caliber Smith & Wesson handgun on the ground at the spot
that a district court’s failure to instruct the jury regarding       where Chester had jumped out of the pickup truck.
separate possession was not plain error where there was
sufficient evidence adduced to find that the defendant               B. Procedural background
possessed the two weapons on separate occasions).
                                                                        On July 24, 1998, a jury convicted Chester on all twenty-six
   Chester does raise a valid objection, however, to the             counts of the indictment. The district court sentenced him to
appropriateness of count twenty-six of the indictment as a           a total term of life plus 205 years, to be served consecutively.
separate charge. Chester dropped or discarded the Smith &            Chester was also ordered to pay restitution of $23,890 to the
Wesson .380-caliber handgun—charged in count twenty-                 various victims of his crimes.
five—when he jumped out of the moving pickup truck on
September 7, 1997. When the police caught up with him a                                     II. ANALYSIS
few minutes later, they discovered a .380-caliber ammunition
clip on his person, for which Chester was charged separately         A. Conviction as to counts three and four—attempted
in count twenty-six. Aside from this brief gap in the time of           robbery
possession, the government introduced no evidence
demonstrating that Chester stored or acquired the ammunition            Count three of the indictment charged Chester with
clip separately from the gun.                                        attempting to rob the Kroger grocery store on August 26,
                                                                     1996 in violation of the Hobbs Act, 18 U.S.C. § 1951. Count
   Because there was no showing that Chester separately              four charged Chester with carrying and using a firearm during
stored or acquired these items, we reverse Chester’s                 and in relation to this attempted robbery. Chester claims that
conviction on count twenty-six. See Rosenbarger, 536 F.2d            there was insufficient proof to support his convictions on
at 721 (reversing the defendant’s conviction on two of his           these two counts because the evidence, at most, supports a
6     United States v. Adams                      No. 98-6522      No. 98-6522                      United States v. Adams        7

finding that he intended to burglarize the Kroger store, not rob   Walgreens drugstore. A reasonable trier of fact could
it.                                                                conclude from this circumstantial evidence that the Adams
                                                                   brothers intended to rob the Kroger store.
   A conviction must be sustained if “any rational trier of fact
could have found the essential elements of the crime beyond        B. Sentencing as to counts thirteen, fourteen, twenty-
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319           five, and twenty-six—felony possession of a firearm
(1979) (emphasis in original). In reviewing sufficiency of the        or ammunition
evidence claims, a court must view the evidence in the light
most favorable to the prosecution. See United States v.               Chester next challenges the district court’s imposition of
Talley, 164 F.3d 989, 996 (6th Cir.), cert. denied, 526 U.S.       separate sentences for four counts of being a felon in
1137 (1999) . Robbery is defined as “the unlawful taking or        possession of a firearm or ammunition. These counts are
obtaining of personal property from the person or in the           based upon his possession of three handguns and one
presence of another, against his will, by means of actual or       ammunition clip. The appropriate test when multiple
threatened force, or violence, or fear of injury . . . .” 18       weapons are confiscated is set forth in United States v.
U.S.C. § 1951(b). Burglary, in contrast, does not require the      Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976): “[O]nly one
use or threat of force, and consists simply of the unlawful or     offense is charged under the terms of § 1202(a)(1) regardless
unprivileged entry into a building or structure with the intent    of the number of firearms involved, absent a showing that the
to commit a crime. See Taylor v. United States, 495 U.S. 575,      firearms were stored or acquired at different times or places.”
599 (1990).                                                        It is the government’s burden to establish separate offenses
                                                                   under the statute. See id.
   Conviction for attempting to commit a crime requires “[t]he
intent to finish the crime, coupled with affirmative acts            The government met its burden in this case as to three of
toward that end.” United States v. Calloway, 116 F.3d 1129,        the four counts. It is clear from the face of the indictment that
1136 (6th Cir. 1997). Once a defendant takes a “substantial        the Bryco 9-millimeter handgun charged in count thirteen, the
step” towards the completion of the crime, however,                Ruger 9-millimeter handgun charged in count fourteen, and
abandonment of the crime is not a defense. United States v.        the Smith & Wesson .380-caliber handgun charged in count
Shelton, 30 F.3d 702, 705-06 (6th Cir. 1994).                      twenty-five were each discovered by the police on separate
                                                                   occasions and in different places. Each gun therefore
  Chester admitted that he and his brother began to drill a        properly served as the basis for a separate violation of 18
hole in the Kroger store’s roof with the intent to enter and       U.S.C. § 922(g). See United States v. Killebrew, 560 F.2d
commit a crime. The relevant question, then, is whether their      729, 734 (6th Cir. 1977) (stating, for the guidance of the
intent was to steal from the store and leave before it opened,     district court on remand, that a conviction on two separate
or to wait inside for an employee to arrive and commit a           counts of firearms possession was appropriate where the
robbery.                                                           evidence indicated that the defendant had acquired the two
                                                                   weapons on separate occasions).
  When viewed in the light most favorable to the
government, the facts support a finding that the Adams               Chester nevertheless argues that the district court erred by
brothers intended to rob the Kroger store. Both men were           failing to explicitly instruct the jury to determine whether
carrying guns that morning and, until they were interrupted by     these weapons were separately stored or acquired. Because
the store’s alarm, they were following the identical plan that     Chester failed to contemporaneously object to the court’s
they successfully executed three days later in robbing the         failure to give an instruction on separate possession, we
