          United States Court of Appeals
                        For the First Circuit


No. 17-1362

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                           MARCEL HENDERSON,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

                [Hon. Rya W. Zobel, U.S. District Judge]
              [Hon. Joseph L. Tauro, U.S. District Judge]



                                Before

                       Lynch, Stahl, and Barron,
                            Circuit Judges.


     David A. F. Lewis on brief for appellant.
     Andrew E. Lelling, United States Attorney, and Michael J.
Crowley, Assistant U.S. Attorney, on brief for appellee.


                           December 19, 2018
          BARRON, Circuit Judge.       Marcel Henderson ("Henderson")

was indicted in the United States District Court for the District

of Massachusetts in April 2011 on one count of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C.

§ 922(g)(1).   He was convicted of that offense after trial in

October 2016, following intermittent pre-trial proceedings, and,

in February 2017, he was sentenced to time served plus three weeks

of imprisonment and three years of supervised release.        Henderson

now challenges his conviction and his sentence.         For the reasons

that follow, we affirm.

                                  I.

          Henderson   was   arrested    in   Boston,   Massachusetts   on

January 2, 2011 after law enforcement found a firearm on his person

pursuant to a traffic stop and pat-down frisk.         Henderson filed a

motion to suppress evidence of the firearm, for which the District

Court held a three-day evidentiary hearing.        Based on testimony,

call transcripts, and other evidence adduced at the hearing, the

District Court made the following findings of fact.

          During an investigation of the Academy Homes Street

Gang, law enforcement officials, including a detective with the

Boston Police Department ("BPD"), intercepted a string of phone

calls -- from December 30, 2010 to January 1, 2011 -- that

suggested that Henderson was armed and committing violent crimes

targeting members of that gang.    The intercepts also revealed that


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the gang may also have been targeting Henderson, who had earlier

been shot by the gang.             The detective briefed other officers on

the morning of January 2, 2011 about the information gleaned from

the phone calls and the potential danger that Henderson posed.

The detective specifically alerted team members that he expected

Henderson to be armed.              Officers soon thereafter "established

surveillance" near Henderson's fiancée's residence in Boston,

where Henderson often stayed.

              That same afternoon, the detective and a special agent

with    the    Federal     Bureau     of   Investigation         ("FBI")   observed

Henderson exit his fiancée's residence and engage in an "animated

conversation" with another man on the public street in front of

the residence.       They saw Henderson reach toward his waist with his

right hand, at which point the other man threw his hands up and

backed away.

              The    detective      broadcast     his      observations     of    the

altercation, and his belief that Henderson possessed a firearm, by

radio    to   a     BPD   police    officer     and    a   lieutenant      with   the

Massachusetts State Police ("MSP").                   They were each stationed

nearby and had taken part in the detective's earlier briefing.

Immediately       after   the    altercation,     the      BPD   officer    and   MSP

lieutenant saw Henderson, his fiancée, and their child enter a

car.    The BPD officer and MSP lieutenant followed the car until it

made an illegal U-turn and pulled over to the side of the road.


                                       - 3 -
When Henderson exited the vehicle, the officers activated their

emergency lights and pulled up behind the car.

             After    the    MSP    lieutenant     informed      Henderson    of    the

traffic violation, the BPD officer conducted a pat-down frisk.

The FBI special agent exited his own vehicle to assist the two

officers,    and     the    three   of   them    pulled      a   firearm    away   from

Henderson and arrested him on the scene.

                                          II.

             Henderson challenges his conviction on two grounds.                   The

first concerns the District Court's denial of his motion to

suppress evidence of the firearm. The second concerns the District

Court's grant of the government's motion to bar him from asserting

a necessity defense.

                                          A.

             Henderson argues that, contrary to the District Court's

ruling denying his motion to suppress, the stop and frisk violated

the Fourth Amendment to the United States Constitution.                             The

Supreme Court has held that, under the Fourth Amendment, a law

enforcement officer may conduct a brief, investigatory stop of a

person, as well as a protective frisk, when the officer effecting

the   stop   has     reasonable     suspicion      to    believe     that   "criminal

activity may be afoot and that the persons with whom [the law

enforcement    officer]       is    dealing      may    be   armed   and    presently

dangerous[.]"        Terry v. Ohio, 392 U.S. 1, 30 (1968).                  The Court


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has further explained that reasonable suspicion entails a "level

of suspicion [that] . . . is 'considerably less than proof of

wrongdoing by a preponderance of the evidence,' and 'obviously

less'   than   is   necessary   for    probable    cause."      Navarette     v.

California, 572 U.S. 393, 397 (2014) (quoting United States v.

Sokolow, 490 U.S. 1, 7 (1989)).           We review the District Court's

legal conclusion that there was the requisite reasonable suspicion

de novo and its factual findings and credibility assessments

underlying that conclusion for clear error.           See United States v.

Flores, 888 F.3d 537, 543 (1st Cir. 2018).

           Henderson    does    not    dispute    that,   if   we   accept   the

District Court's factual findings, there was reasonable suspicion.

After all, the District Court found that the law enforcement

officials who conducted the stop and frisk -- and subsequently

effected the arrest -- had been briefed on the contents of a

wiretap that indicated that Henderson was involved in dangerous

criminal activity.     And, the District Court found, the officials

also had knowledge of -- and direct observation of, in the FBI

agent's case -- Henderson's altercation with another man, in which

Henderson's actions implied that he was armed.

           But, Henderson does contend that the factual findings

were clearly erroneous in key respects and thus that the District

Court's denial of the motion to suppress must be reversed.                   He

does so first by making much of the fact that the District Court


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refused to credit the testimony by law enforcement officers that

they had witnessed Henderson driving the vehicle on the day of his

arrest.       The District Court instead credited Henderson's and his

fiancée's testimony that Henderson was physically incapable of

driving.

               Henderson contends that, by finding that the officers

were not credible in this one way, the District Court clearly erred

in finding that they were credible in other key ways.                    And,

Henderson contends, if that key testimony was not credible, then

the District Court lacked any basis for concluding that the

officers had the requisite reasonable suspicion to effect the stop

and perform the pat down.

               The District Court gave cogent reasons, however, for its

decision not to credit the testimony about whether Henderson drove

the car that do not in any way cast doubt on its reasons for

finding the officers' testimony otherwise credible.1              And, as we

have       explained   before,   "[t]he   fact   that   the   district   court

disbelieved one part of the officers' testimony but credited other

parts does not render suspect the district court's credibility

finding." United States v. Ivery, 427 F.3d 69, 72 (1st Cir. 2005).




       1
       Four months after the District Court's denial of his motion
to suppress, Henderson filed a motion for reconsideration. The
District Court denied that motion for reconsideration, but
Henderson does not challenge that ruling on appeal.


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          Henderson separately challenges the District Court's

factual findings on a number of specific grounds.            In particular,

he argues that the officers lied when they testified that Henderson

was "waving his arms around before he got into the car," that there

existed an affidavit that confirmed Henderson's version of events

and thus undermined the account given by the officers, that the

officers' vantage point would not have allowed them to observe

Henderson having a conversation or getting into the car, that the

officers' notes from the arrest did not reflect a belief that

Henderson was armed, and that the government allegedly conceded

that there was no traffic violation even though the officers had

testified that there was.        But, Henderson's assertions either

mischaracterize   the   record   or    provide   one   of   "two   competing

interpretations of the evidence, [such that] the district court's

choice of one of them cannot be clearly erroneous."           United States

v. Cruz-Jiménez, 894 F.2d 1, 7 (1st Cir. 1990).             Accordingly, we

reject his challenge to the denial of his motion to suppress.

                                      B.

          We turn next to Henderson's challenge to the District

Court's grant of the government's motion in limine to preclude him

from raising a justification defense.             Henderson opposed the

government's motion on the ground that he had made a sufficient

showing to raise a necessity defense at trial because members of




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the     Academy      Homes   Street   Gang    had    threatened   to    kill     him

imminently.

               The District Court granted the government's motion.                In

doing    so,    it    concluded   that    Henderson     had   failed     to    offer

sufficient evidence "to establish that [he] was under an 'unlawful

and imminent threat of such a nature as to induce a well-grounded

apprehension of death or serious bodily injury' at the time he was

found in possession of a firearm on January 2, 2011."                   See Dixon

v. United States, 548 U.S. 1, 4 n.2 (2006); United States v. Leahy,

473 F.3d 401, 409 (1st Cir. 2007).               In reaching this conclusion,

the District Court noted that "imminence" requires a real emergency

giving rise to immediate danger to oneself or to a third party.

See United States v. Maxwell, 254 F.3d 21, 27 (1st Cir. 2001).

               Reviewing de novo, see United States v. Lebreault-Feliz,

807 F.3d 1, 4 (1st Cir. 2015), we agree with the District Court.

The record simply does not support Henderson's assertion that he

faced an imminent threat to his life.

                                       III.

               Finally, we turn to Henderson's sentence.              He contends

that the District Court erred in concluding that either of his

prior Massachusetts convictions, for, respectively, armed robbery

and armed assault, qualified as a conviction for a "crime of

violence" for purposes of U.S.S.G. § 2K2.1(a)(4)(A).                  See U.S.S.G.

§   2K2.1(a)(4)(A)       (applying    a   base      level   offense    of   20   for


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"[u]nlawful receipt, possession, or transportation of firearms or

ammunition," if "the defendant committed any part of the instant

offense subsequent to sustaining one felony conviction of . . . a

crime of violence" as defined by § 4B1.2(a), see U.S.S.G. § 2K2.1

cmt. 1).   Henderson preserved this challenge below, and thus our

review is de novo.   See United States v. Benítez-Beltrán, 892 F.3d

462, 465-66 (1st Cir. 2018).2

           The   District   Court   did   conclude   that   his   prior

Massachusetts armed robbery conviction qualified as a "crime of

violence" for purposes of § 2K2.1(a)(4)(A).      And, on that basis,

the District Court assigned Henderson a base offense level ("BOL")

of 20.   See U.S.S.G. § 2K2.1(a)(4)(A).

           The government concedes on appeal that Henderson's armed

robbery conviction does not qualify as a "crime of violence" for

purposes of that guideline.   The government also makes no argument

that his armed assault conviction does so qualify.          Thus, the

government does not dispute that the District Court committed a


     2 We note that, below, Henderson objected to the Probation
Office's determination, in its presentence report, that he was an
armed career criminal based on three prior convictions that the
Probation Office classified as predicate offenses for purposes of
the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The
District Court agreed with Henderson, finding that at least one of
his three convictions did not qualify as an ACCA predicate, and
thus did not sentence Henderson as an armed career criminal under
ACCA. Therefore, although Henderson presses in his briefing to us
that his other two convictions also did not qualify as ACCA
predicates, we may bypass that question.     See United States v.
Starks, 861 F.3d 306, 315 n.10 (1st Cir. 2017).


                                - 9 -
"significant       procedural       error"      by     calculating         Henderson's

Guidelines sentencing range ("GSR") based on the BOL of 20 that it

assigned him pursuant to § 2K2.1(a)(4)(A).                        See Gall v. United

States, 552 U.S. 38, 51 (2007) (stating that improper calculation

of   the    Guidelines      range   constitutes        "significant           procedural

error").

             Nevertheless,      the    government        argues,        the     District

Court's GSR calculation error was harmless.                        In pressing this

contention, the government proceeds on the understanding that,

absent     the   District    Court's    application          of    §   2K2.1(a)(4)(A),

Henderson's BOL would have been as low as 12.                 And, it would appear

that -- assuming Henderson's criminal history category remained

the same -- the lower BOL would have resulted in Henderson's GSR

being less than half of the GSR that the District Court assigned

to him.     U.S.S.G. ch. 5, pt. A (sentencing table).                   Moreover, the

government does not disagree that remand is often appropriate when

the District Court incorrectly calculates the GSR.                       See Williams

v. United States, 503 U.S. 193, 203 (1992).

             Still,   the    government      is      right    that     remand    is   not

appropriate when there are sufficient indications in the record

that, "despite application of an erroneous Guidelines range,"

there is no "reasonable probability of a different outcome."                          See

Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016).

And, the government argues, that is the case here because the


                                       - 10 -
District Court's sentencing rationale was expressly based on its

concerns   about    permitting    Henderson's      immediate   release     from

prison and thus would not have changed even if the GSR had been

lower.

           The     government    emphasizes   in    this   regard   that    the

District Court explained at sentencing that, because Henderson had

just spent six years in prison, it was "not appropriate" for him

to leave prison immediately and that instead, his sentence would

provide a "structured transition."       And, the government notes, the

District Court expressly found that this "structured transition"

required keeping Henderson in prison for three additional weeks in

order to "allow probation to find a bed for [Henderson] in a

halfway house in a residential re-entry," where Henderson would

then serve the first three months of his three-year supervised

release period.

           To be sure, the District Court never expressly stated

that it would have imposed the same sentence even if the GSR were

the lower one that would have applied but for the application of

§ 2K2.1(a)(4)(A).      Cf., e.g., United States v. Acevedo-Hernández,

898 F.3d 150, 172 (1st Cir. 2018) ("In light of this clear

indication in the record that the court would have imposed the

same sentence even without any of the alleged errors, we find that

any errors in calculating [the defendant's] GSR would have been

harmless.").     But, the District Court's clearly stated sentencing


                                   - 11 -
rationale -- that the sentence of time served and supervised

release of three years was necessary for Henderson's "structured

transition" from prison and that the additional three weeks'

imprisonment was necessary so that the Probation Office could find

Henderson space at a halfway house -- could equally apply to

sentencing under a lower BOL of 12.    Henderson has failed to show

prejudice or to rebut the government's argument that any error was

harmless.

                                IV.

            For the foregoing reasons, Henderson's conviction and

sentence are affirmed.




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