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United States v. Barbosa

United States Court of Appeals, First Circuit

July 16, 2018

UNITED STATES OF AMERICA, Appellee,
v.
JOHN A. BARBOSA, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]

          Anthony E. Fuller, with whom Alexandra G. Watson and Hogan Lovells U.S. LLP were on brief, for appellant.

          Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

          Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

          SELYA, Circuit Judge.

         This appeal resembles a play in two acts. The first act deals with whether the district court erred in refusing to order a pretrial hearing to test the sufficiency of the probable cause allegations undergirding an arrest warrant. The second act deals with whether the district court erred in classifying the defendant as an armed career criminal and sentencing him under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). As the final curtain descends, we find it manifest that the district court erred in neither respect. Accordingly, we affirm the defendant's conviction and sentence.

         I. BACKGROUND

         We rehearse the relevant facts, which are largely undisputed (even though the parties fiercely contest the inferences to be drawn from those facts). In the early afternoon of Saturday, August 8, 2015, Jillian Poeira and her mother Ana Poeira walked into a police station in New Bedford, Massachusetts, to file a report implicating defendant-appellant John A. Barbosa. Jillian and the defendant had lived together (with Jillian's two children from a previous relationship) before parting ways in January of 2015. Following the break-up, Jillian and her children moved in with Jillian's parents.

         When Jillian and Ana arrived at the police station on August 8, they spoke to a New Bedford police officer, Gregory Sirois, and described certain events that had transpired earlier that morning. According to the application for a criminal complaint (the Application), completed and signed that afternoon by Officer Sirois, [1] the two women reported that, around 7:00 a.m., the defendant appeared unexpectedly at their home. Ana answered the door, and the defendant pushed his way inside and demanded to speak to Jillian. Officer Sirois wrote in the Application that "Ana Poeira pushed [the defendant] against the wall and held him there and as she did he raised a black firearm into the air and pointed it [at] both females," threatening to kill everyone in the house. The Application went on to relate that the altercation ended after Ana "managed to push [the defendant] back out the door." The defendant then departed.

         Officer Sirois asked the women why they had waited nearly six hours to report the incident. Jillian responded that she was scared, and Ana added that she had a doctor's appointment that morning. The officer then checked for any outstanding warrants concerning either Jillian or the defendant but found none. He did, however, find an extensive Board of Probation record for the defendant, which revealed a number of "firearms charges and other violent crimes."

          Officer Sirois proceeded to assist Jillian in preparing a complaint for an emergency restraining order against the defendant. In support, Jillian wrote and signed an affidavit (the text of which was not included verbatim in the Application), in which she described the August 8 incident in her own words. The affidavit stated that the defendant had arrived at the house between 8:00 a.m. and 9:00 a.m. When the defendant knocked and asked to speak with Jillian, Ana opened the door only a crack and told the defendant that Jillian had nothing to say to him. According to Jillian's affidavit, the defendant pushed his way into the house as Ana tried to hold him back; Jillian's four-year-old son yelled that the defendant had a gun; and Jillian - who had been about to call 911 - dropped the phone and ran to help her mother push the defendant out the door. As the defendant left, he told Jillian that if she called the police, he would kill everyone in the house.

         Jillian told Officer Sirois that the defendant drove a gray Volvo and frequented the New Bedford public library. The officer confirmed that a gray Volvo was registered in the defendant's name and put out a "be on the look out" notice for the car.

         Two days later, detectives from the New Bedford Police Department followed up on the complaint against the defendant.

          They confirmed that an arrest warrant had been issued on a charge of armed home invasion - a warrant premised on the Application. See Mass. Gen. Laws ch. 265, § 18C. That afternoon, the police executed the arrest warrant at the public library and took the defendant into custody. During the arrest, they seized a bag containing a firearm and ammunition.

         On November 12, 2015, a federal grand jury sitting in the District of Massachusetts returned a single-count indictment charging the defendant with being a felon in possession of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). In due season, the defendant moved to suppress the firearm and ammunition found in his possession. He alleged, inter alia, that the arrest warrant had been issued without a sufficient showing of probable cause and that the firearm and ammunition were fruits of the allegedly unconstitutional warrant. The government opposed the motion, and the district court denied it. See United States v. Barbosa, 2016 WL 3976559, at *1 (D. Mass. July 22, 2016). Undaunted, the defendant moved for a Franks hearing, see Franks v. Delaware, 438 U.S. 154, 155-56 (1978), seeking an opportunity to challenge the underpinnings of the arrest warrant in a pretrial proceeding. The district court denied this motion as well. See United States v. Barbosa, 2016 WL 6609174, at *1 (D. Mass. Nov. 7, 2016).

         On December 19, 2016, the defendant entered a conditional guilty plea, see Fed. R. Crim. P. 11(a)(2), reserving his right to appeal both the district court's denial of his motion to suppress and its denial of his motion for a Franks hearing. Following the defendant's guilty plea, the probation department prepared a presentence investigation report recommending that the defendant be sentenced as an armed career criminal under the ACCA. In support, the probation department represented that the defendant, in the idiom of the ACCA, had at least three prior convictions for "violent felon[ies]" and/or "serious drug offense[s]." 18 U.S.C. § 924(e). The probation department identified four Massachusetts convictions - a 1993 conviction for possession with intent to distribute a controlled substance; a 1995 conviction for assault with a dangerous weapon (ADW); a 2000 conviction for possession with intent to distribute a controlled substance; and a 2007 conviction for armed assault with intent to murder (AAIM) - as potential predicate offenses. Classification as an armed career criminal had potentially unattractive consequences for the defendant: the ACCA requires a mandatory minimum fifteen-year term of incarceration for persons who have at least three qualifying convictions for predicate offenses. See id. § 924(e)(1).

         At sentencing, the district court determined that the defendant's 1993, 1995, and 2000 convictions comprised convictions for ACCA predicate offenses.[2] Classifying the defendant, over his objection, as an armed career criminal, the court sentenced him to a fifteen-year term of immurement. This timely appeal followed.

         II. ANALYSIS

         In this venue, the defendant, ably represented, does not directly challenge the district court's denial of his motion to suppress. He does challenge, though, the court's denial of his motion for a Franks hearing. In addition, he challenges his classification as an armed career criminal and, thus, his sentence. We bifurcate our analysis, first addressing the defendant's Franks claim and then addressing his claim of sentencing error.

         A. Franks Hearing.

         We start with the defendant's challenge to the denial of his motion for a Franks hearing. In reviewing such an order, we appraise the district court's factual findings for clear error and evaluate its legal conclusions de novo. See United States v. Patterson, 877 F.3d 419, 424 (1st Cir. 2017); United States v. Arias, 848 F.3d 504, 511 (1st Cir. 2017). The district court's findings of fact will be deemed clearly erroneous if - and only if - a reviewing court, after considering all of the evidence, "is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessmer, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

         The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. amend. IV. In Massachusetts, police officers need not submit an affidavit in support of an arrest warrant. See Burke v. Town of Walpole, 405 F.3d 66, 78 (1st Cir. 2005) (describing procedure). Instead, they may submit an application for a criminal complaint, which must reduce to writing the facts supporting probable cause. See Mass. Gen. Laws ch. 276, § 22. The ensuing arrest warrant must nonetheless be signed by the official issuing it, see Mass. R. Crim. P. 6(b), and that signature satisfies the Fourth Amendment's oath or affirmation requirement, see Burke, 405 F.3d at 78-79. Here, the arrest warrant was initialed by a judge of the New Bedford District Court, and the defendant has not challenged the sufficiency of the oath or affirmation on appeal.

         Beyond the oath or affirmation, the Fourth Amendment demands that an application for an arrest warrant contain sufficient information to allow the issuing official - whom, for ease in exposition, we shall call "the magistrate" - to "make a practical, common-sense decision whether, given all the circumstances set forth in the [application] before him . . . there is a fair probability" that a crime has been committed. Illinois v. Gates, 462 U.S. 213, 238 (1983). An application "supporting a . . . warrant is presumptively valid." United States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013). Under certain circumstances, however, a defendant may be able "to rebut this presumption and challenge the veracity" of the warrant application at a pretrial hearing. United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). Such a hearing is eponymously called a Franks hearing. See, e.g., id.; United States v. Hicks, 575 F.3d 130, 135-36 (1st Cir. 2009).

         The Franks Court held that if a defendant can show, by a preponderance of the evidence, that there were false statements included in the warrant affidavit and that, with the "false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the . . . warrant must be voided and the fruits . . . excluded to the same extent as if probable cause was lacking on the face of ...


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