
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1697                                    UNITED STATES,                                      Appellee,                                          v.                                JONATHAN A. GRANT, II,                                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 Lynch, Circuit Judges.                                            ______________                                _____________________               Miriam Conrad, Federal Defender Office, for appellant.               _____________               Sheila  W. Sawyer,  Assistant United  States Attorney,  with               _________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                     May 30, 1997                                 ____________________                    TORRUELLA,  Chief   Judge.    On  February   28,  1996,                    TORRUELLA,  Chief   Judge.                                _____________          Defendant-Appellant   Jonathan   Grant   ("Grant")   entered   an          unconditional plea of guilty to  four counts of being a felon  in          possession of eleven different firearms in violation of 18 U.S.C.            922(g).  Each count stated  a different location or a different          time of possession of  the relevant firearms.  Count  One charged          Grant with possessing  three firearms  "[o]n or  about April  22,          1995, at Fairhaven, . . .  Massachusetts."  Count Two charged him          with possessing  two firearms "[o]n  or about April 26,  1995, at          Fairhaven,  . . . Massachusetts."   Count Three  charged him with          possessing  two  firearms  "[o]n  or about  April  26,  1995,  at          Westport,  . .  . Massachusetts."   Count  Four charged  him with          possessing four firearms "[o]n or about May 1, 1995, at Westport,          . . . Massachusetts."                      At the  May 31, 1996, sentencing  hearing, the district          court determined that Grant was an  Armed Career Criminal ("ACC")          under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.   924(e),          and accordingly imposed a minimum mandatory sentence of 15 years.          In the  event that this court  determined on appeal that  the ACC          finding was erroneous, the  district court imposed an alternative          sentence of a total of fifteen  years, ten years for Counts  One,          Two, and Three,  to run  concurrently, and five  years for  Count          Four, to run  consecutively.   As to the  district court's  first          ground, Grant  contends that the district  court erroneously held          that Grant's  earlier  Massachusetts conviction  for  carrying  a          dangerous  weapon constituted  a violent  felony under  the ACCA.                                         -2-          This allegedly  erroneous finding  provided the  third conviction          necessary to deem  Grant an  ACC.  Grant  next contends that  the          district court  erred, on  its alternative grounds,  in enhancing          his offense level  four levels under  U.S.S.G.   2K2.1(b)(5)  and          abused  its discretion when it  denied his request  to conduct an          evidentiary hearing  on  disputed  facts  in  the  Pre-Sentencing          Report ("PSR").   Finally, Grant argues  that the district  court          violated  his Double  Jeopardy rights  by imposing  a consecutive          sentence on Count Four.  Because we find that Grant's  second and          third  claims  lack  merit,  and therefore  affirm  the  district          court's  alternative  sentence, we  need  not  reach Grant's  ACC          argument.                                      BACKGROUND                                      BACKGROUND                    In  presenting the  facts, we  consult  the uncontested          portions  of  the  PSR,   as  well  as  the  sentencing   hearing          transcript.  United  States v. Lagasse, 87 F.3d 18,  20 (1st Cir.                       ______________    _______          1996).                    Michael Rivera ("Rivera") agreed to buy guns for Grant,          in return for  $50 for each gun purchased.   Rivera purchased, on          Grant's  behalf,  a total  of  thirteen  guns from  licensed  gun          dealers  in Massachusetts.  Rivera turned  over all thirteen guns          to Grant, who paid over $6,400 in  cash for the guns.  Grant paid          Rivera $650 in cash for making the purchases.                    A federal Alcohol, Tobacco, and Firearms ("ATF") agent,          who  had received  a  tip about  the  purchases from  a  licensed          dealer, interviewed Rivera  on May  11, 1995.   Rivera agreed  to                                         -3-          cooperate with federal  agents and, on  June 2, 1995,  introduced          Grant to an undercover agent.  Grant indicated in a tape recorded          conversation  with Rivera  that he  was interested  in purchasing          five fully  automatic  Tec-9 firearms  with  attached  silencers,          bulletproof  vests, and a  silencer for  a .40-caliber  Smith and          Wesson pistol that Rivera had purchased for him earlier.  As part          of  the  sting  operation,  Rivera  made  arrangements  with  the          government agent to purchase  these items for Grant.   When Grant          was arrested by ATF agents at  the sham sale, he was carrying the          .40-caliber firearm and $3,000 in cash.                                      DISCUSSION                                      DISCUSSION          I.        Sentence enhancement          I.        Sentence enhancement                    Under U.S.S.G.   2K2.1(b)(5),  the district court is to          impose a four-level enhancement                    [i]f  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.          The  district court  found that  this enhancement  was warranted.          Grant contends that the district court abused its discretion when          it  failed to  hold  an evidentiary  hearing regarding  contested          portions of the PSR, and that the Section 2K2.1(b)(5) enhancement          was unsupported by the remaining uncontested evidence.                    A.   Failure to hold an evidentiary hearing                    A.   Failure to hold an evidentiary hearing                                         -4-                    We  review  the district  court's  failure  to hold  an          evidentiary hearing  for abuse of  discretion.  United  States v.                                                          ______________          Jim nez Mart nez, 83 F.3d 488, 498 (1st Cir. 1996).          ________________                    Grant contested some of the facts contained in the PSR,          specifically  facts  derived  from  an  ATF  agent's  grand  jury          testimony regarding statements allegedly  made by Rivera but that          were not contained  in Rivera's  grand jury testimony  or in  his          written statement to the  ATF.  These statements assert  that the          purpose of  Grant's firearms  purchases was  to "arm  persons who          sold drugs for defendant in the  greater New Bedford area."   PSR          at 25.   In the  proceedings below, Grant  sought an  evidentiary          hearing into  the factual basis  for the agent's  statements that          were not supported by Rivera's own testimony.  Grant proffered to          the  probation  department and  the  sentencing  court copies  of          Rivera's  written  statement and  cited  to  Rivera's grand  jury          testimony;1  neither  source,  Grant  argued,  indicates  Grant's          purpose in  purchasing  the  weapons.    Grant  argued  that  the                                        ____________________          1  Part of Rivera's testimony consisted of the following:                    Q.   Did he  tell you what he  intended to do                    with the guns?                    A.   Yes.  I think he was -- at one point, he                    mentioned he was  going to get rid of them to                    his family members and to some friends.                    Q.   Were  these  individuals who  sold drugs                    with and for Grant?                    A.   Yes,  the ones  that I  know of  that he                    mentioned.          Grand Jury Testimony of Michael Rivera at 9.                                         -5-          "inconsistency"  between the agent's testimony regarding Rivera's          statements and Rivera's own statements warranted resolution in an          evidentiary hearing.                    Grant  further  contends  on  appeal  that neither  the          statements of Rivera nor those of the ATF agent were sufficiently          reliable  for the  district court  to credit them  in determining          Grant's  knowledge  or intent  regarding  the future  use  of the          firearms.   Grant  asserts  that neither  Rivera's statement  nor          Rivera's  testimony  displayed  sufficient knowledge  of  Grant's          state of mind to make the statements reliable for the purposes of          this enhancement.                    He further asserts that  the ATF agent's statements are          unreliable because they are nothing more than claims regarding an          informant's  uncorroborated statements.   Grant  claims  that the          rationale of  this court's decision  in United States  v. Jim nez                                                  _____________     _______          Mart nez applies to  his case.  See Jim nez Mart nez,  83 F.3d at          ________                        ___ ________________          494-95 (finding  reliability concerns after the  defendant made a          proffer  contesting the reliability  of an informant's statements          regarding the  defendant's statements because  the defendant  and          the informant did  not share  a common language).   Grant  argues          that,  just as  the  defendant's uncontested  proffer in  Jim nez                                                                    _______          Mart nez sufficiently called into question the reliability of the          ________          informant's  statements,   the   ATF  agent's   statements   were          sufficiently  called  into question  by  Rivera's  statements and          testimony.    The argument  fails.   There is  no "inconsistency"          between the ATF agent's statements and Rivera's written statement                                         -6-          and grand  jury testimony -- the ATF  agent's testimony regarding          statements  made by Rivera in the context of the investigation is          consistent  with the testimony provided by  Rivera.  Moreover, at          the  end of his grand  jury testimony, Rivera  stated that he was          engaged  in ongoing  discussions  with the  ATF that  encompassed          subjects beyond those to which he had testified.                    More fundamentally, Grant made no proffer regarding any          possible,  let alone relevant or material, evidence that would be          brought forward at an  evidentiary hearing.  Without a  reason to          believe  that   any  benefit  would  derive   from  convening  an          evidentiary hearing, the district court  surely did not abuse its          discretion in refusing Grant's request.                    B.   Failure to resolve factual disputes                    B.   Failure to resolve factual disputes                    Prior to sentencing, Grant objected to various facts in          the PSR.  Grant  argues that the district court  failed to comply          with Federal Rule of  Criminal Procedure 32(c)(1), which requires          a sentencing court that is presented with a factual dispute to                    make either a finding  on the allegation or a                    determination  that  no finding  is necessary                    because the controverted  matter will not  be                    taken into  account in,  or will  not affect,                    sentencing.    A  written  record   of  these                    findings and determinations must  be appended                    to any  copy of  the presentence report  made                    available to the Bureau of Prisons.          Fed. R. Crim.  P. 32(c)(1).  We have held  that the strictures of          Rule  32(c)(1)  bind the  sentencing  court to  compliance.   See                                                                        ___          United  States v.  Bruckman,  874 F.2d  57,  64 (1st  Cir.  1989)          ______________     ________          (finding  a violation of Rule 32[(c)(1)]  when the district court          fails  to make or append such findings); United States v. Hanono-                                                   _____________    _______                                         -7-          Surujun, 914 F.2d 15, 18 (1st Cir. 1990) (collecting cases).  The          _______          purposes   of  this  rule  are  two-fold:    (1)  to  protect  "a          defendant's  due process rights to  be sentenced on  the basis of          accurate  information"; and (2) to provide "a clear record of the          disposition  of controverted  facts  in the  presentence  report,          which, in turn, reduces  the likelihood that subsequent appellate          or administrative decisions  will be  made based  on improper  or          incomplete information."  Bruckman, 874 F.2d at 63-64.                                    ________                    With  regard  to  the  first  concern,  we  have  held,          however,  that "a court may make implicit findings with regard to          sentencing matters."   United  States v. Ovalle-M rquez,  36 F.3d                                 ______________    ______________          212, 227 (1st Cir. 1994); accord United States v. Cruz, 981  F.2d                                    ______ _____________    ____          613, 619 (1st Cir.  1992) ("A court may make implicit findings on          disputed   factual  questions   by  accepting   the  government's          recommendations at the  sentencing hearing." (internal quotations          omitted)).     During the sentencing hearing, the court gave each          party the opportunity to discuss the basis for relying on the ATF          agent's  testimony  regarding  what  Rivera  had  told  him  when          Rivera's  own words  did not  include the  same statements.   The          contested  statements concerned Grant's alleged knowledge that he          was  giving the  firearms to  individuals who  would use  them in          connection with a felony.   After both parties were heard  on the          statements of the ATF agent and the informant, the district court          ruled that Grant "had reason to believe that the weapons would be          used  or possessed  in connection  with another  felony offense."          Transcript of Sentencing Hearing  at 26.  The court  indicated in                                         -8-          writing,  as part of the judgment, that it "adopt[ed] the factual          findings  . . .  in the presentence  report."  We  find this case          virtually  indistinguishable  from United  States v.  Savoie, 985                                             ______________     ______          F.2d  612, 621 (1st Cir.  1993), which found,  on similar, if not          identical, facts, that the  sentencing court had implicitly ruled          that the contested statements  were sufficiently reliable.  Under          Savoie, the district court's  ruling and written adoption  of the          ______          PSR  amounts "necessarily [to  a] finding against  [Grant] on all          disputed  matters of  fact," id.,  that are  the subject  of this                                       ___          appeal.                    Moreover,  although Grant objected  to certain facts in          the PSR that stated he had the requisite knowledge, Grant did not          provide  the sentencing court with  evidence to rebut the factual          assertions that he was in  charge of a drug operation in  the New          Bedford  area and  that he  intended to  provide the  firearms to          friends and family members  in furtherance of their work  in that          operation.  Consequently,  the court was justified in  relying on          the contested facts.  See United States v. Mir, 919 F.2d 940, 943                                ___ _____________    ___          (5th Cir. 1990) (explaining  that, although defendant objected to          facts  contained in  the  PSR, his  failure  to present  rebuttal          evidence  to refute those facts  left the district  court free to          adopt the facts  contained in the  PSR without further  inquiry),          cited in  United States  v. Morillo, 8  F.3d 864,  873 (1st  Cir.          ________  _____________     _______          1993); United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).                 _____________    ____                    Having  concluded  that the  court  implicitly resolved          these  factual disputes, we turn to the second concern implicated                                         -9-          by Rule 32(c)(1), namely that a court's determination be appended          to  the PSR.  Although the district court implicitly resolved the          factual  disputes,  it  failed  to comply  with  Rule  32(c)(1)'s          mandate  that the  sentencing court  append to  the PSR  either a          determination regarding  the contested facts or  a statement that          the contested facts were not considered in reaching the sentence.          Consequently,  we remand to the  sentencing court to  allow it to          append  its determination.   Cruz,  981  F.2d at  619 (explaining                                       ____          that,  where the  sentencing  court merely  fails  to append  its          findings,  remanding without resentencing is appropriate); United                                                                     ______          States  v. Santana-Camacho,  931 F.2d  966, 969  (1st Cir.  1991)          ______     _______________          (finding "technical"  failure to append  findings to PSR  did not          entitle appellant to resentencing).                    C.   Support for the enhancement                    C.   Support for the enhancement                    We review the sentencing  court's interpretation of the          sentencing guidelines de novo  and its factual conclusions, which                                _______          must be supported by  a preponderance of the evidence,  for clear          error.   United States  v. Ruiz,  105 F.3d 1492,  1504 (1st  Cir.                   _____________     ____          1997).   Having concluded that the district court was entitled to          rely  on all  of the  facts provided  in the  PSR, we  review its          imposition  of   the  four-level  enhancement  under  U.S.S.G.             2K2.1(b)(5) in light of the facts contained in the PSR.                    The findings  on which the sentencing  court relied for          the  four-level  enhancement   were  supported  by  the   factual          statements in the  PSR and  amply justify the  enhancement.   See                                                                        ___          United  States v.  Van, 87  F.3d 1,  3 (1st  Cir. 1996)  ("In the          ______________     ___                                         -10-          absence  of  legal error,  the  district court's  ruling  will be          sustained  so long  as the  information upon  which it  relied is          sufficient  to support  the  findings under  a clearly  erroneous          standard.").  According to  the PSR, Grant was a  drug dealer who          used  friends  and  family  members  to  distribute  drugs.    He          indicated to  his "gopher" in the  firearms transactions, Rivera,          that he  needed the firearms to protect him and his associates in          connection  with the drug  operation.  These  facts alone support          the   sentencing  court's   finding  that   Grant  possessed   or          transferred the  firearms "with  knowledge, intent, or  reason to          believe that [they] would be used or possessed in connection with          another felony."  U.S.S.G.   2K2.1(b)(5).  We find no error here.          II.       Double Jeopardy challenge          II.       Double Jeopardy challenge                    The Double  Jeopardy Clause  states:  "[N]or  shall any          person for the  same offense be twice put in  jeopardy of life or          limb."  U.S. Const. amend. V.  In the context  of sentencing, the          Double  Jeopardy Clause  bars  a sentencing  court from  imposing          multiple  punishments for  the  same offense.    See Rutledge  v.                                                           ___ ________          United States, 116 S. Ct. 1241, 1245 (1996).  Grant contends that          _____________          the  imposition of  consecutive  sentences for  four counts  that          amounted to  the  same  offense  violates this  principle.    The          government  responds  that  Grant  waived any  challenge  to  the          indictment on Double Jeopardy grounds  by his plea agreement  and          unconditional  plea  of  guilty   to  all  four  counts  in   the          indictment.   It  argues  in the  alternative  that if  Grant  is          permitted  to pursue a Double Jeopardy challenge to his sentence,                                         -11-          to prevail he must establish that the felon-in-possession charges          in the indictment were facially multiplicitous.                    We  reject  the  government's  initial argument.    The          caselaw  establishes   that   a  defendant   may  under   certain          circumstances  mount a  Double Jeopardy  challenge to  a sentence          arising out  of a conviction  to which  he pled  guilty.   United                                                                     ______          States v. Broce, 488 U.S. 563, 576 (1989); Menna v. New York, 423          ______    _____                            _____    ________          U.S. 61, 63  n.2 (1975)  (per curiam); Blackledge  v. Perry,  417                                                 __________     _____          U.S.  21 (1974).    The  government's  focus  here  on  the  plea          agreement in addition  to the  plea itself does  not advance  the          argument or provide an exception to the general principle.                    The  government's  alternative  argument   is  correct.          Grant must  show that the indictment  was facially multiplicitous          to prevail on his Double Jeopardy challenge.                    When a criminal defendant  pleads guilty, he admits not          only  that  he committed  the  factual  predicate underlying  his          conviction,  but  also  "'that  he committed  the  crime  charged          against him.'"  Broce, 488 U.S. at 569 (quoting North Carolina v.                          _____                           ______________          Alford, 400 U.S. 25, 32 (1970)).  "Just as a defendant who pleads          ______          guilty to a single  count admits guilt to the  specified offense,          so  too does  a defendant  who pleads  guilty to two  counts with          facial  allegations  of distinct  offenses  concede  that he  has          committed two separate offenses."  Id. at 570.                                             ___                    At  the  plea hearing,  the  district  court repeatedly          directed Grant's attention to  the fact that he had  been charged          with four different  crimes.   See Transcript of  Change of  Plea                                         ___                                         -12-          Hearing, Feb. 28, 1996, at 6, 11.  After being so apprised, Grant          entered an unconditional plea on each count.  Having conceded the          facts  in the indictment, he  cannot now contend  that the counts          constitute   the   same   offense   unless   they  are   facially          multiplicitous.                    Here,   the  facial  allegations  of  the  four  counts          consisted  of   distinct  offenses,   charging  Grant  with   the          possession  of eleven different weapons in two separate cities on          three  different dates.   While it  is true  that Counts  Two and          Three charge Grant with possession of certain weapons on the same          day, the  two counts  allege possession  of different  weapons in          different  cities.  Count Two alleges  possession in Fairhaven of          two   Glock  semi-automatic  pistols,  and  Count  Three  alleges          possession  in Westport  of another  Glock  semi-automatic pistol          (with  a different  serial number  from either  of the  two other          Glocks) and a Ruger  semi-automatic pistol.  Grant's  guilty plea          constituted  an  admission  to   each  of  the  distinct  factual          predicates underlying the separate counts and,  consequently, the          plea "conceded guilt  to [four] separate  offenses."  Broce,  488                                                                _____          U.S. at  571.  The four counts being distinct from one another in          time, place, or both, and weapon possessed, they are not facially          multiplicitous.                    Grant's efforts to dodge  this conclusion are two-fold.          First, he contends  that, because  neither the PSR  nor the  plea          colloquy  establish  where Rivera  turned  the  firearms over  to          Grant, we must disregard the distinction between the reference in                                         -13-          Counts  One  and  Two  to  possession  of  different  firearms in          Fairhaven  and  the  reference  in   Counts  Three  and  Four  to          possession of other firearms in Westport.  Because Grant's guilty          plea  to  all four  counts conceded  that  his possession  of the          different  firearms took place  in the locations  alleged in each          count, however, no such showing was required.                    Grant's second  argument is  that the sentencing  court          found that the possession  of these weapons amounted to  a single          course of conduct.  Accordingly,  Grant reasons, the acts alleged          in the  four separate  counts  constitute this  single course  of          conduct,  making  them  the  same  offense  for  Double  Jeopardy          purposes.   Again, Grant's argument fails.   First, Grant's claim          that the district  court made  a finding that  his possession  of          these firearms constituted a single  scheme or course of  conduct          is belied by the record.  Second, the four separate counts simply          do not allege simultaneous possession.                    The  two  multiple  possession  cases  on  which  Grant          relies, United States  v. Mullins,  698 F.2d 686,  687 (4th  Cir.                  _____________     _______          1983), and United States  v. Frankenberry, 696 F.2d 239,  245 (3d                     _____________     ____________          Cir. 1982), are  different from his situation  in one dispositive          way.   In  those two  cases,  the defendants  were  tried on  and          convicted of the  multiple possession counts.  Here, in contrast,          Grant pled guilty to each  separate offense and thereby  admitted          the  factual predicates  underlying the  offense.  He  cannot now          argue that a factual issue remains regarding the location or time                                         -14-          of  his possession of these  different firearms.   See Broce, 488                                                             ___ _____          U.S. at 569-71.                    Based  on  the  foregoing,  we  reject  Grant's  Double          Jeopardy challenge and affirm  the district court's imposition of          a five  year sentence on Count  Four to run consecutively  to the          concurrent  ten year  sentences imposed  on Counts One,  Two, and          Three.                                      CONCLUSION                                      CONCLUSION                    For the  foregoing reasons, we affirm  Grant's sentence                                                   affirm                                                   ______          and  remand  to the  district  court  to append  to  the PSR  its               remand               ______          findings regarding contested facts.                                         -15-
