[Copyrighted Material Omitted]
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. Hon. Denise J. Casper, U.S. District Judge.
H. Mizner, Assistant Federal Public Defender, with whom the
Federal Public Defender Office was on brief, for appellant.
Quinlivan, Assistant United States Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.
Torruella, Lynch, and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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.
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.
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).
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
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
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
the sentence, the District Court referenced the Guidelines
sentencing range that had been set forth in Fields's
pre-sentence report (" 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. U.S.S.G. §
2K2.1(a)(2) (emphases added).
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. 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
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
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.
first consider Fields's challenge to his conviction. We
then turn to his challenge to his sentence.
argues that his conviction must be vacated because the
District Court erred in denying his motion to suppress
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
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)).
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).
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).
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:
"  the threatening presence of several officers, 
the display of a weapon by an officer,  some physical
touching of the person of the citizen, or  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.
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.
Fields, the five officers at that point made the requisite
show of authority even though they lacked a lawful ...