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United States v. Brake

United States Court of Appeals, First Circuit

September 14, 2018

United States of America, Appellee,
v.
Adam Brake, Defendant, Appellant.

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE Hon. George Z. Singal, U.S. District Judge.

          Jane Elizabeth Lee, on brief for Appellant.

          Halsey B. Frank, United States Attorney, with whom Benjamin M. Block, Assistant United States Attorney, was on brief for Appellee.

          Before Lynch, Stahl, and Thompson, Circuit Judges.

          STAHL, CIRCUIT JUDGE.

         Defendant Adam Brake pleaded guilty to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). In calculating Brake's sentence, the district court applied, inter alia, a two-level enhancement for possession of a stolen firearm and a four-level enhancement for using a firearm in connection with another felony. On appeal, Brake challenges the district court's application of these two enhancements. After careful consideration, we affirm.

         I. Factual Background and Prior Proceedings

         We briefly summarize the essential facts of the case. "Because this appeal follows a guilty plea, we draw the relevant facts from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report ('PSR'), and the transcript of the disposition hearing." United States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).

         In May 2016, in response to a reported burglary, officers from the Berwick (Maine) Police Department stopped a car matching a bulletin for a separate burglary. Brake was inside the car and consented to a search of the vehicle.[1] Police discovered a crowbar and multiple laptop computers in the trunk of the car. At that point, Brake confessed to multiple burglaries in the area.

         In a subsequent interview following Miranda warnings, Brake reaffirmed his earlier confession and informed police that some of the stolen property remained stashed at a Berwick residence. After a search of the premises (presumably conducted pursuant to a search warrant), police recovered numerous items from multiple burglaries, including currency, electronics, jewelry, and (most notably for purposes of this appeal) nine firearms. On June 5, 2017, Brake pleaded guilty to an information charging possession of a firearm by a felon, and separately admitted to four violations of the terms of his supervised release on an earlier conviction.

         Using the 2016 Sentencing Guidelines, the United States Probation Office ("Probation") issued its first PSR for the felon in possession count in July 2017. Based on Brake's criminal history, the PSR calculated a base offense level of 20, see U.S.S.G. § 2K2.1(a)(4)(A), and applied enhancements for specific offense characteristics: (a) a four-level increase based on the number of firearms involved in the offense, id. § 2K2.1(b)(1)(B); and (b) a two-level increase because the offense involved stolen firearms, id. § 2K2.1(b)(4)(A).[2] Following Brake's objections to the first PSR, Probation issued a second PSR which included in its calculation an additional enhancement of four levels because Brake "used or possessed [] firearm[s] . . . in connection with another felony offense," id. § 2K2.1(b)(6)(B), namely the felony burglaries during which Brake stole the firearms.

         Brake objected to both PSRs on a number of grounds, none of which are claimed to be relevant here.[3] The district court overruled all of Brake's objections to the guidelines calculation. On September 25, 2017, the court sentenced Brake to a term of 84 months' incarceration for possession of a firearm by a felon and a concurrent term of 24 months' incarceration for violating the terms of his supervised release.[4] Brake timely appealed.

         II. Discussion

         Brake's sole argument in this appeal is that the district court erred in imposing both the two-level enhancement under Section 2K2.1(b)(4)(A) and the four-level enhancement under Section 2K2.1(b)(6)(B). The government both contests this argument and counters that, in any event, Brake's claim has been waived because he did not object to the Section 2K2.1(b)(4)(A) stolen gun enhancement when he was before the district court. In response, Brake argues that ...


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