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United States v. Fields

United States Court of Appeals, First Circuit

May 13, 2016

ERNEST FIELDS, Defendant, Appellant

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[Copyrighted Material Omitted]

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         Judith H. Mizner, Assistant Federal Public Defender, with whom the Federal Public Defender Office was on brief, for appellant.

         Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

         Before Torruella, Lynch, and Barron, Circuit Judges.


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          BARRON, Circuit Judge.

          Ernest Fields (" Fields" ) pleaded guilty to being a felon in possession of a firearm and ammunition. On appeal he contends that his conviction must be overturned because the police obtained the firearm and ammunition in consequence of a violation of the Fourth Amendment. Fields also appeals his sentence. He contends that it must be vacated because the District Court mistakenly concluded that a United States Sentencing Guidelines (the " Guidelines" ) enhancement for career offenders applied to him. We affirm the conviction but vacate and remand the sentence.


         On April 10, 2013, Fields was indicted under 18 U.S.C. § 922(g)(1) on one count of being a felon in possession of a firearm and ammunition. The indictment arose out of an encounter between Fields and the Boston police in the early morning hours of September 12, 2012. The encounter occurred near Madison Park High School in the Roxbury neighborhood of Boston. It lasted several minutes.

         At first, the encounter involved only Fields and one Boston police officer. But that officer eventually called for backup, and four additional officers arrived on the scene. At some point after those officers arrived, the police conducted a pat-frisk of Fields. The police acquired the firearm and ammunition during that frisk.

         Following the indictment, Fields sought to suppress the firearm and ammunition on the ground that the police had acquired that evidence only because they had seized Fields without a legally sufficient basis for doing so. The District Court, after holding a hearing, denied Fields's motion. United States v. Fields, No. 13-10097--DJC, 2014 WL 2616636 (D. Mass. June 11, 2014).

         The District Court ruled that Fields was seized neither when the officer that he initially encountered spoke with him nor when the four officers later arrived as backup. The District Court did hold that the police seized Fields later on in the encounter, when the police physically subdued Fields in order to conduct a pat-frisk of him. At that time, the District Court concluded, the police had a lawful basis to seize and search Fields because the police had probable cause to arrest him for assault and battery on a police officer.[1]

         On June 12, 2014, Fields pleaded guilty to the felon-in-possession count. In doing so, he reserved his right to challenge on appeal the District Court's denial of his motion to suppress.

         On October 22, 2014, the District Court sentenced Fields to a term of imprisonment of 60 months, to be followed by three years of supervised release. In selecting

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the sentence, the District Court referenced the Guidelines sentencing range that had been set forth in Fields's pre-sentence report (" PSR" ).

         The PSR calculated that range as follows. The PSR assigned Fields a base offense level (" BOL" ) under the Guidelines of 24. In calculating Fields's BOL, the PSR applied U.S.S.G. § 2K2.1(a)(2). That guideline provides for an enhancement to the defendant's BOL if the defendant satisfies certain career offender requirements. Under that enhancement, " if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of . . . a crime of violence," the defendant shall be assigned a BOL of 24.[2] U.S.S.G. § 2K2.1(a)(2) (emphases added).

         The PSR identified the following two prior felony convictions of Fields as convictions of a " crime of violence" : his conviction for resisting arrest for which he was sentenced in September 2010, and at least one of a set of convictions that arose out of a single incident and for which Fields had received a single sentence in July 2010.[3] Those July 2010 convictions included convictions under Massachusetts law for assault with a dangerous weapon (" ADW" ), assault and battery with a dangerous weapon (" ABDW" ), assault and battery on a police officer (" ABPO" ), and resisting arrest.[4]

         The District Court concluded that the Guidelines range reflected in the PSR was properly calculated at 70-87 months, which was consistent with Fields's having a BOL of 24 and a criminal history category of V. But the District Court also concluded that a downward departure in Fields's criminal history category was warranted because that category, although properly calculated, substantially overrepresented the seriousness of Fields's criminal history. See U.S.S.G. § 4A1.3(b). That departure translated to a Guidelines range of 60-71 months, which was consistent with applying a BOL of 24 and a criminal history category of IV to Fields. The District Court then sentenced Fields to a term of imprisonment -- 60 months -- that was at the low end of that lower range.

         On appeal, Fields challenges both his conviction and his sentence. He challenges his conviction on the ground that the District Court erred in denying his motion to suppress the firearm and ammunition. Fields challenges his sentence on the ground that the District Court erred in classifying his prior convictions as convictions of a crime of violence for purposes of calculating his BOL under the Guidelines.

         We first consider Fields's challenge to his conviction. We then turn to his challenge to his sentence.


         Fields argues that his conviction must be vacated because the District Court erred in denying his motion to suppress

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the firearm and ammunition. " When reviewing a challenge to the district court's denial of a motion to suppress, we view the facts in the light most favorable to the district court's ruling on the motion, and we review the district court's findings of fact and credibility determinations for clear error." United States v. Fermin, 771 F.3d 71, 76 (1st Cir. 2014) (quoting United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011)). We review conclusions of law, including the ultimate conclusion whether a seizure occurred, de novo. Camacho, 661 F.3d at 724. Fields bears the burden of establishing that he was seized. Id.


          The Fourth Amendment prohibits " unreasonable searches and seizures." U.S. Const. amend. IV. " The protections of the Fourth Amendment apply not only to traditional arrests, but also to those brief investigatory stops generally known as Terry stops." Camacho, 661 F.3d at 724. An officer may ordinarily execute a Terry stop without running afoul of the Fourth Amendment if the officer " reasonably suspects that the person apprehended is committing or has committed a crime." Id. at 726 (quoting Arizona v. Johnson, 555 U.S. 323, 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)).

          The police need not have taken physical custody of a person in order to be deemed to have effected a Terry stop for which at least reasonable suspicion is required. Such a stop instead may occur merely upon law enforcement making what the Supreme Court has termed a " show of authority." See United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Such a " show of authority" occurs, however, only when " in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 554. And, further, the show of authority effects a seizure only when the defendant actually yields or submits to the show of authority. See California v. Hodari D., 499 U.S. 621, 628-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

         We appreciate " that few people . . . would ever feel free to walk away from any police question." United States v. Cardoza, 129 F.3d 6, 16 (1st Cir. 1997). But that reality obviously does not mean that every police-citizen encounter results in a show of authority for Fourth Amendment purposes. See id. The " free to leave" test thus focuses on whether the conduct of law enforcement " objectively communicate[s] that [law enforcement] is exercising [its] official authority to restrain the individual's liberty of movement." Id. (emphasis added).

          The Supreme Court has identified several characteristics of an encounter with law enforcement that might indicate that there was a show of authority. These characteristics include: " [1] the threatening presence of several officers, [2] the display of a weapon by an officer, [3] some physical touching of the person of the citizen, or [4] the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554.


         Fields's challenge to the District Court's ruling on his suppression motion rests on his contention that he was not " free to leave" -- and thus that a seizure occurred due to a " show of authority" -- when the four officers arrived at the scene in response to a call for backup from the officer Fields initially encountered. According to

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Fields, the five officers at that point made the requisite show of authority even though they lacked a lawful ...

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