169 F.

3d 89

UNITED STATES, Appellee,

v.
Adam BROWN, Defendant, Appellant.
No. 98-1707.

United States Court of Appeals,

First Circuit.
Heard Jan. 5, 1999.
Decided March 3, 1999.

Paul F. Markham, by appointment of the Court, for appellant.

Donald L. Cabell, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, was on brief, for appellee.
Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and
BOUDIN, Circuit Judge.
TORRUELLA, Chief Judge.

Before the Court is Defendant-appellant Adam Brown's appeal of: (1) the
denial of his motion to suppress evidence found during his arrest, and (2) his
sentence of 100 months imprisonment for possession of a stolen firearm. We
affirm the judgment of the district court in both respects.

BACKGROUND
2

On May 3, 1996, plainclothes Boston police officers Brian Black, Joseph

Freeman, and Susan Antonucci were on patrol in an unmarked police car in the
Roxbury area of Boston, Massachusetts. As they approached the apartment
building located at 150 Walnut Avenue, they observed Brown and another male
leaving the building. The officers decided to speak with the two individuals, so
they stopped the car. Officer Black claims that he said to them, "Boston Police.
May I have a word with you?" When the men turned around and began to walk
back toward the apartment building, Officer Black got out of the car and again
said, "Boston Police. May I speak with you?" Brown then walked back inside

the apartment building, and the other individual walked around the side of the
building. Officer Black followed Brown into the building and saw Brown
walking up a stairwell. Officer Black started up the stairs and again said,
"Boston Police. May I have a word with you?" At this point, Brown pushed
Officer Black and tried to flee up the stairs. Officer Black then tackled Brown,
and Officers Antonucci, Freeman, and William O'Hara, who was already in the
building lobby on an unrelated matter, assisted in arresting Brown. During
Brown's arrest, the officers found a .357 caliber revolver--later found to be
stolen--on Brown's person.
3

On July 17, 1996, Brown was charged with possession of a firearm by a felon
in violation of 18 U.S.C. 922(g)(1). Brown moved to suppress the firearm and
other evidence recovered at his arrest. He denied pushing Officer Black and
argued that the officers possessed neither probable cause to arrest nor
reasonable suspicion to warrant an investigative stop. After hearing testimony
from Officers Black, Antonucci, and O'Hara,1 the district court denied Brown's
motion to suppress. The court found that, while the events that occurred prior to
the altercation on the stairwell would not have been sufficient to justify an
arrest or investigative stop, once Brown pushed Officer Black on the stairwell,
Officer Black had probable cause to arrest Brown for assault and battery on a
police officer.

After the government filed a superseding information, Brown waived

indictment and entered a conditional guilty plea to one count of possession of a
stolen firearm in violation of 18 U.S.C. 922(j), reserving the right to appeal
the denial of his motion to suppress and his sentence. At sentencing, Brown's
base offense level was set at 24, pursuant to U.S.S.G. 2K2.1(a)(2), because
Brown had at least two prior felony convictions of either a crime of violence or
a drug offense. Over Brown's objection, the district court also applied a twolevel enhancement under 2K2.1(b)(4) because the firearm was stolen. After
applying a two-level reduction for acceptance of responsibility and determining
that Brown qualified for Criminal History Category VI, the court found the
applicable sentencing range to be 100-125 months. Brown was sentenced to
100 months imprisonment. On June 10, 1998, Brown filed a timely notice of
appeal.

DISCUSSION
5I. The District Court's Denial of Brown's Motion to Suppress
6

Brown first argues that his arrest was made in violation of the Fourth
Amendment, requiring suppression of the firearm seized from him at the time

of his arrest. In his motion to suppress below, Brown argued that he did not
push Officer Black and that the officers did not have probable cause or
reasonable suspicion to stop him based solely on the fact that he walked away
from officers in plain clothes. On appeal, Brown does not dispute that he
pushed Officer Black. Rather, he now argues that he acted reasonably in
pushing Officer Black and therefore that there was not probable cause to arrest
him even after he did so. This is the first time Brown has advanced this
argument.
7

We review the denial of a motion to suppress under a bifurcated standard. See

United States v. Cardoza, 129 F.3d 6, 13 (1st Cir.1997). We review the district
court's findings of fact for clear error and review the district court's conclusions
of law de novo. See id. However, where a defendant has not first raised an issue
below, we review for plain error only. See United States v. Shea, 150 F.3d 44,
48 (1st Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 568, 142 L.Ed.2d 473 (1998).

Brown claims that he reasonably feared for his safety and had the right to
defend himself when Officer Black followed him into the building. From this,
he argues that Officer Black had no probable cause to arrest him for assault and
battery on a police officer. This argument fails because Brown's alleged fear for
his safety does not negate the probable cause perceived by Officer Black. The
inquiry into probable cause to arrest focuses on what the officer knew at the
time of arrest. See United States v. Bizier, 111 F.3d 214, 216 (1st Cir.1997).
The fact that Brown may not have known that Officer Black was a police
officer may serve as a defense to a subsequent charge of assault and battery on
a police officer, see Commonwealth v. Francis, 24 Mass.App.Ct. 576, 511
N.E.2d 38, 40 (1987), but it does not invalidate the arrest because it has no
impact on the information possessed by Officer Black at the time of the arrest.
See Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343
(1979) ("The validity of the arrest does not depend on whether the suspect
actually committed a crime; the mere fact that the suspect is later acquitted of
the offense for which he is arrested is irrelevant to the validity of the arrest.").
Officer Black was pushed by Brown after having identified himself as a police
officer.2 This clearly provided him with probable cause to believe that Brown
had committed an assault and battery on a police officer.

Brown also notes that the district court found that there was no valid basis to
stop him at any time prior to the incident on the stairwell. The government
concedes as much, but this is of no assistance to Brown. There is no claim that
Brown was seized until after he pushed Officer Black, nor could there be. See
California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690
(1991) (rejecting contention that a pursuit qualifies as a "seizure" and stating

that a seizure requires either physical force or submission to the assertion of

authority); United States v. Sealey, 30 F.3d 7, 9 (1st Cir.1994) (stating that a
seizure occurs when a citizen's liberty has been restrained by means of physical
force or a show of authority and holding that no seizure occurred when officers
shouted, "Hey, Steven, what's up?" from a police cruiser). Because the probable
cause inquiry focuses on what the officer knew at the time of the arrest, see
Bizier, 111 F.3d at 216, it is immaterial whether probable cause to arrest
existed prior to the altercation on the stairwell.
10

Brown apparently attempts to argue that Officer Black needed probable cause
or reasonable suspicion in order to enter the lobby of the apartment building.
However, "[i]t is now beyond cavil in this circuit that a tenant 3 lacks a
reasonable expectation of privacy in the common areas of an apartment
building." United States v. Hawkins, 139 F.3d 29, 32 (1st Cir.) (internal
footnote added) (citations omitted), cert. denied, --- U.S. ----, 119 S.Ct. 566, 142
L.Ed.2d 472 (1998). Therefore, Officer Black's entry into the lobby of the
apartment building did not violate the Fourth Amendment. See United States v.
Cruz Pagan, 537 F.2d 554, 557-58 (1st Cir.1976) (holding that a person cannot
have a reasonable expectation in a common parking garage of an apartment
building and therefore that the officers' entry into that garage did not violate the
Fourth Amendment).

11

Finally, Brown's counsel argued at oral argument, without any supporting

authority, that an officer should not be allowed to manufacture probable cause
by "accosting" a suspect in order to provoke a reaction, which then
conveniently provides probable cause to arrest the suspect. While this argument
might provide an intriguing question in some contexts, this is clearly not one of
those contexts. Officer Black did not violate the Fourth Amendment or
otherwise provoke Brown prior to being pushed on the stairwell by Brown; he
merely followed Brown into the common area of a building and requested to
speak with him. We cannot agree with Brown that his assault on Officer Black
was a "natural consequence" of Officer Black's actions or that Brown had the
"right to defend himself with impunity" once Officer Black asked to speak to
him. Nor can we find that an officer has provoked a suspect in order to
manufacture probable cause merely by asking to speak with him. As a result,
we find no error in the district court's denial of Brown's motion to suppress.

12 The District Court's Enhancement of Brown's Offense Level Under U.S.S.G.

II.
2K2.1(b)(4)
13

Brown's second argument is that the district court should not have applied a
two-level increase in his offense level under U.S.S.G. 2K2.1(b)(4). We

review interpretations of the sentencing guidelines de novo. See United States

v. Nunez-Rodriguez, 92 F.3d 14, 19 (1st Cir.1996).
14

Subsection (b)(4) provides for a two-level enhancement if the firearm involved

was stolen or had an altered or obliterated serial number. Commentary Note 12
to 2K2.1 instructs that the subsection (b)(4) enhancement should not be
applied for a stolen firearm if: (1) the only offense to which 2K2.1 applies for
a given defendant is 18 U.S.C. 922(j), and (2) the defendant's base offense
level is determined under subsection (a)(7). Commentary Note 12 goes on to
state that the (b)(4) enhancement is not applied in such a situation because the
base offense level has already taken into account that the firearm was stolen.
Because the district court calculated Brown's base offense level under
subsection (a)(2), not (a)(7), the court found that Commentary Note 12 was not
applicable. Therefore, the district court enhanced Brown's offense level by two
levels under subsection (b)(4).

15

Brown claims that the district court "double-counted" the stolen nature of the
firearm by calculating his base offense level under 2K2.1 because he pled
guilty to possession of a stolen firearm in violation of 18 U.S.C. 922(j), and
then enhancing that offense level with 2K2.1(b)(4) because the firearm was
stolen. The Ninth Circuit recently rejected this exact "double-counting"
argument in United States v. Turnipseed, 159 F.3d 383, 385-86 (9th Cir.1998).
In that case, the court denied the "double-counting" claim by finding that the
district court properly applied 2K2.1, including subsection (b)(4) and
Commentary Note 12. See id. at 386. The court did not specifically discuss
whether the possession of a stolen weapon was "double-counted" in calculating
the defendant's sentence.

16

We agree with the Ninth Circuit's implicit holding that applying the subsection
(b)(4) enhancement to an individual in Brown's position does not constitute
"double-counting." Sentencing Guideline 2K2.1 encompasses offenses
involving: (1) the unlawful receipt, possession, or transportation of firearms or
ammunition, and (2) prohibited transactions involving firearms or ammunition.
It is not necessary that the firearms involved were stolen for the defendant to be
sentenced under 2K2.1. Thus, it cannot be said that the district court
considered the stolen nature of the firearm by sentencing Brown under the
broad 2K2.1 sentencing guideline.

17

It is clear that a sentencing court takes into account whether the firearm was
stolen when a defendant is convicted of possession of a stolen firearm under
922(j) and the court calculates the defendant's base offense level under
subsection (a)(7). See Commentary 12, U.S.S.G. 2K2.1. Subsection (a)

provides eight categories for calculating the base offense level applicable to
offenses covered under 2K2.1. Subsections (a)(1)-(a)(6) provide six different
base offense levels for different combinations of three aggravating factors: (1)
whether a type of particularly dangerous firearm was involved; (2) the
defendant's criminal history; and (3) whether the defendant is a "prohibited
person." If none of those factors is present, the defendant is given a base
offense level under either subsection (a)(7) or (a)(8). The lower base offense
level of the two is prescribed under subsection (a)(8), which is applicable for
certain transportation or record-keeping violations which need not involve
stolen firearms. Subsection (a)(7) provides a higher base offense level for all
other offenses, including possession of a stolen firearm in violation of 922(j).
Therefore, for an individual convicted under 922(j), if none of the aggravating
factors applies, the sentencing court's application of the higher base offense
level of subsection (a)(7) takes into account the stolen nature of the firearm.
18

Brown's base offense level, however, was not calculated under subsection (a)
(7). Brown's base offense level was calculated under subsection (a)(2) because
Brown had at least two prior felony convictions of either violent crimes or drug
crimes. Subsection (a)(2) is applicable for all crimes to which 2K2.1 applies-whether the firearm was stolen or not--so long as the proper aggravating factors
are present. Therefore, the stolen nature of the firearm was not considered in
calculating Brown's base offense level, meaning that subsequently considering
the stolen nature of the firearm in applying subsection (b)(4) was not "doublecounting." Therefore, the district court properly enhanced Brown's offense level
under subsection (b)(4).

CONCLUSION
19

Based on the foregoing, the district court's denial of Brown's motion to suppress
and application of the sentencing guidelines are AFFIRMED.

O'Hara's partner, Officer Louis Coleman also testified, but the district court
"largely discounted" his testimony because he remembered little and it was
unclear whether he saw what happened

The district court appeared to accept the testimony of the "three witnesses for
the government [who] testified consistently that at least on one occasion, inside
the building, Mr. Black identified himself as a police officer and asked to speak
to Mr. Brown." This factual finding is not clearly erroneous

We note that Brown was not even a tenant of the building; he was a guest