United States Court of Appeals For the First Circuit

No. 23-1337

UNITED STATES OF AMERICA,

Appellee,

v.

CARL LANGSTON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Montecalvo, Lynch, and Rikelman, Circuit Judges.

Robert Herrick for appellant.

Benjamin M. Block, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.

August 2, 2024 RIKELMAN, Circuit Judge. Carl Langston appeals his

conviction for possessing a gun in violation of

(g)(1), the felon-in-possession statute. Langston's primary

argument is that this statute is unconstitutional under the Second

Amendment as applied to him. In particular, he claims that the

government cannot, consistent with the Second Amendment, bar him

from ever possessing a gun again based on his previous convictions

under Maine law for theft and drug trafficking. Because Langston

challenges the constitutionality of § 922(g)(1) for the first time

on appeal, we must review his claim under the plain-error standard,

which requires that any error be "clear" or "obvious." And,

because it is not "clear" or "obvious" that § 922(g)(1) is

unconstitutional under the Second Amendment as applied to someone

with Langston's criminal history, he cannot prevail under this

standard. Langston also challenges the district court's denial of

his motion to suppress evidence (including the gun) uncovered

during a police stop, as well as several of the district court's

sentencing decisions. We agree with the district court's ruling

that the police stop was based on reasonable suspicion and find no

errors in the court's sentencing decisions. Thus, we affirm

Langston's conviction and sentence.

I. BACKGROUND

Because this appeal follows Langston's guilty plea, we

draw the facts relevant to Langston's sentencing from "the probation office's presentence investigation report (PSR), the

plea agreement, . . . the transcript of the sentencing hearing,"

and the sentencing exhibits. United States v. Colón-Cordero,

(1st Cir. 2024); see also United States v.

Ruperto-Rivera,

(1st Cir. 2021). As for the facts

relevant to Langston's suppression argument, "[w]e recite [them]

as found by the district court," United States v. Werra,

(1st Cir. 2011), and view them "in the light most

favorable to the district court's ruling," United States v. Soares,

(1st Cir. 2008) (quoting United States v.

Kimball,

(1st Cir. 1994)).

A. Langston's Arrest at The Bar on February 7, 2021

Two incidents are critical to this appeal. The first,

which gave rise to Langston's conviction, took place at The Bar in

Portland, Maine.

Shortly before midnight on February 6, 2021, the

Portland Police Department (PPD) received a 911 call about a

disturbance at The Bar. An anonymous tipster reported that "a

black male wearing a black hat with horns . . . [was] yelling and

had punched a white male that had a beard." The injured man

reportedly had left, while "the black male was still outside

yelling."

The PPD dispatched two officers, Garrick Rogers and Ryan

Cannell, to investigate. When they arrived, The Bar was quiet, and no one matching the description provided by the tipster was

present. Rogers and Cannell spoke with a bouncer, who confirmed

that a fight had occurred but stated that a "recurrence was

unlikely unless the participants encountered each other again

somewhere else that night." Satisfied that all was well for the

moment, Rogers and Cannell left The Bar.

Soon after, the anonymous tipster placed another 911

call. This time, he identified himself as "Shawn" and gave his

address and telephone number. Shawn reported that the man who had

"started the fight" was "still in the bar." A few minutes after

Shawn's call, The Bar's off-site manager called 911 to convey a

report he had received from an on-site security guard. The PPD

dispatch then relayed these latest tips over the radio:

One of the males involved in the fight went to his car and grabbed a 1032 gun. He's now looking for another male that he was fighting with. They said he had a pistol in his coat. Black male, 5'10", maroon jacket with a grey hood. He's currently outside the bar with his hand in his pocket.

Rogers and Cannell, along with a third officer, Zachary Theriault,

returned to the scene to investigate.

When Rogers arrived back at The Bar, he saw an individual

outside who matched the description from the 911 calls, down to

the maroon jacket, grey hood, and black hat decorated with a horns

design. That individual turned out to be Carl Langston, although

Rogers did not know his name at the time. Langston appeared to be arguing with another man outside The Bar; from Rogers's

perspective, the man appeared to be blocking Langston's entrance

into The Bar, and Langston appeared to be pushing against the man,

trying to get in.

Rogers approached and told Langston to put his hands on

his head. Langston first replied, "Who?" After Rogers repeated

his command, Langston retreated slightly and said, "Nah." As he

backed away from Rogers, Langston held his right arm close against

his right jacket pocket, in a manner that led Rogers to believe

that a gun could be located there.

Meanwhile, Theriault approached The Bar from the

opposite side, moving in from behind Langston, out of Langston's

sight. He observed Langston refusing to comply with Rogers's

commands and, because he could not see Langston's hands from

behind, worried that Langston might pull a gun out of his jacket,

given the information relayed by the PPD that Langston "had a

pistol in his coat." After Langston turned around and saw

Theriault behind him, Theriault grabbed Langston's right wrist and

shoulder to stop him from reaching for a weapon. Langston tried

to break the hold and pull away, at which point Rogers entered the

fray. Theriault intentionally dropped to the ground, with Langston

on top of him, where the three men struggled.

Cannell then arrived on the scene and began assisting

Theriault and Rogers in subduing Langston. After about a minute, the three men successfully gained control of Langston, and Rogers

handcuffed him. Theriault sustained a knee abrasion during the

struggle.

Shortly after handcuffing Langston, Theriault and Rogers

noticed the grip of a pistol in Langston's right pocket. They

secured the pistol and, after searching Langston, found a loaded

magazine. They then arrested Langston for refusing to submit to

arrest or detention in violation of Maine law. Other state charges

against Langston were later added, including felony assault on an

officer. The state eventually dropped those charges in favor of

federal prosecution.

B. Langston's Indictment and Motion to Suppress

In October 2021, a grand jury indicted Langston with one

count of violating the federal felon-in-possession statute,

(g)(1), based on his prior felony convictions under

Maine law for theft and drug trafficking. Although the indictment

and Langston's PSR contain limited information about the theft

offense, it appears that Langston was convicted of violating title

17-A, section 353 of the Maine Criminal Code, which criminalizes

theft by unauthorized taking or transfer. As for the drug offense,

Langston was convicted of heroin trafficking in violation of

section 1103(1-A)(A) of the Code.

After his indictment, Langston moved to suppress the

evidence that the PPD officers had obtained when they tried to stop him outside The Bar. He argued that the Fourth Amendment to

the U.S. Constitution required the suppression of the gun and

ammunition because the officers lacked "reasonable suspicion" to

perform their investigatory stop of him that night. The district

court held an evidentiary hearing, at which Rogers and Theriault

testified. It then determined that the totality of the

circumstances gave rise to reasonable suspicion that criminal

activity was afoot and denied Langston's motion.

Langston then entered into a conditional plea agreement

with the government in November 2022. Under that agreement, he

retained the right to appeal the court's suppression order.

Before Langston's sentencing, the probation officer

submitted a PSR to the district court. In the PSR, the officer

calculated Langston's base offense level as fourteen; he then added

four levels for possessing a firearm during felony assault on an

officer and subtracted three levels for Langston's acceptance of

responsibility, for a total offense level of fifteen. Combined

with a criminal history category of VI, this yielded a guideline

sentencing range (GSR) of forty-one to fifty-one months.

C. Incident at The Brook Casino During Langston's Pretrial Release

The second incident critical to this appeal took place

at The Brook casino in Seabrook, New Hampshire, four months after

Langston pleaded guilty and while he was on release pending sentencing. Langston was playing poker at The Brook when the

dealer at his table accidentally exposed a card during the hand.

The dealer called over a floor manager, who "followed the correct

procedures to fix the mistake." Langston remained upset, however,

and the floor manager asked Jason Gigliello, the casino manager,

to speak with him.

To address Langston's concerns, Gigliello called the

casino's surveillance team, who reviewed the hand and confirmed

that the dealer had properly fixed the error. After Gigliello

told Langston that "surveillance was conclusive," Langston became

"combative and agitated." Gigliello then summoned security, at

which point Langston "turned aggressive" and told Gigliello that

he would "get[ his] $200 back one way or another." After Langston

refused to leave on his own, Gigliello called the police and asked

them to remove Langston from the casino. According to Gigliello's

report, Langston "appeared intoxicated" and was "unsteady on his

feet."

One of the Seabrook police officers who responded to

Gigliello's call noted that Langston smelled like alcohol, and "it

was clear that he just had too much to drink." After Langston

refused to give the officers his full name or hand over his

license, they took him into protective custody. They then

transported him to the police station, where they found Langston's

license and determined that he was on federal probation. The Seabrook police sent a report on the incident to

Langston's probation officer. Based on the police report, the

probation officer concluded that Langston had violated his

pretrial release conditions, which required him to refrain from

drinking and to inform his probation officer about any contact

with law enforcement. The probation officer then submitted several

revisions to the PSR, suggesting that Langston be denied credit

for acceptance of responsibility.

D. Langston's Sentencing

Shortly after the casino incident, in late March 2023,

the district court held Langston's sentencing hearing. At the

hearing, Langston told the court that he had no objection to the

PSR, which included a recommendation for a four-level offense

enhancement based on the state charge that he possessed a gun

during an assault on an officer outside The Bar. Langston did

object, however, to three exhibits that the government sought to

introduce to prove that he violated his pretrial release conditions

by drinking at the casino. Specifically, Langston objected to

(1) the protective custody report from the Seabrook police, (2) an

email from the Director of Casino Operations, indicating that

casino staff had served Langston ten drinks (nine alcoholic) and

identifying the staff who did so and when, and (3) an email from

the casino's Surveillance Director, which included screenshots of

staff serving Langston drinks. Langston insisted that these exhibits were unreliable, claiming that the police report

incorrectly recounted the poker-hand incident and the casino

emails came from individuals with no personal knowledge of his

alleged drinking. The court overruled these objections and

concluded that, after reviewing all the evidence, which included

surveillance footage of Langston in the police vehicle that night,

"there[] [was] no question . . . that [Langston] was inebriated"

at the casino.

The district court then addressed whether Langston had

accepted responsibility for his offense. After hearing from both

sides, the court concluded that Langston was not entitled to the

acceptance-of-responsibility credit because of his conduct at the

casino while he was on pretrial release (as well as because of an

interim incident not at issue in this appeal). The court explained

the similarities between Langston's behavior at The Bar and The

Brook:

The initial offense [at The Bar] involved drinking at a bar, not cooperating with police, resisting the police. We had a later event where he was at a different bar, The Lodge, where he got into an argument with a customer and he was restrained by his companion. And then we have this event. I find he was intoxicated at the casino. He was drinking in violation of his bail provisions. He was asked to leave multiple times and refused. I base this on the exhibits. The security guard, I note, felt he was drinking; the police smelled alcohol. When the police came he refused to give his full name multiple times, in spite of the fact that he was on probation and subject to bail conditions. Multiple times he gave his name as Carl, refused to give his name, acting like a -- he was toying with the police. When the police attempted to take him out, the police described him as aggressively jerking his arm. He continued to refuse to cooperate with the police, and I'm referring back again to the analogy to the earlier offense. He made comments to the casino manager, I believe it was the manager, saying I'm going to get my two dollars back -- $[]200 back one way or another, which to me is a threat. And he didn't report this incident to the probation officer until March 21st. I understand that his position is that the policeman could have reported it, but that was not the -- the bail obligation. It was his obligation to report it, making light of his obligations. I think coupled with the original offense, it appears to me he hasn't learned much. And I find there's no acceptance of responsibility.

Without the acceptance-of-responsibility credit, the

district court calculated Langston's total offense level as

eighteen. Combined with a criminal history category of VI, this

yielded a GSR of fifty-seven to seventy-one months. The court

sentenced Langston to fifty-seven months in prison -- the lowest

end of this range.

II. DISCUSSION

As we previewed above, this appeal raises three main

issues. First, Langston brings an as-applied Second Amendment

challenge to his statute of conviction. Second, Langston claims

that the police officers did not have reasonable suspicion to stop

him at The Bar. Third, Langston contends that the district court made several errors at sentencing. We address each argument in

turn and ultimately conclude that none has merit.

A. Second Amendment Challenge to

(g)(1)

Langston's primary argument on appeal is that the

felon-in-possession statute,

(g)(1), is

unconstitutional under the Second Amendment as applied to him.

See U.S. Const. amend. II. In particular, he claims that

§ 922(g)(1) cannot, consistent with the Second Amendment, prohibit

someone with previous convictions under Maine law for theft and

drug trafficking from ever owning a firearm again. In Langston's

view, this conclusion should have been clear and obvious to the

district court after the government failed to provide any evidence

that such a prohibition conforms to our historical tradition of

firearm regulation. In making this argument, Langston relies on

New York State Rifle & Pistol Ass'n v. Bruen,

(2022),

which was decided about nine months before his sentencing, as well

as the Supreme Court's recent decision in United States v. Rahimi,

(2024).

We begin by reviewing the key legal principles that apply

to Langston's constitutional challenge. The Second Amendment

provides that "[a] well regulated Militia, being necessary to the

security of a free State, the right of the people to keep and bear

Arms, shall not be infringed." U.S. Const. amend. II. In a series

of decisions, the Supreme Court has determined that this provision protects the right of an ordinary, law-abiding individual to keep

and bear arms. See Rahimi, 144 S. Ct. at 1897; Bruen,

; McDonald v. Chicago,

(2010); District of

Columbia v. Heller,

(2008). And, when the

government restricts this right, it bears the burden of justifying

the restriction by showing that it is consistent with our history

and tradition. See Rahimi, 144 S. Ct. at 1897; Bruen,

.

The Supreme Court clarified the scope of the history and

tradition test under the Second Amendment in Rahimi, which both

parties agree provides the governing legal standard that we must

apply here.1 See Henderson v. United States,

(2013) (holding that an error that was not plain at the time the

trial court acted may be plain at the time of appellate review

based on subsequent legal developments). In Rahimi, the Court

1 Indeed, in the wake of Rahimi, the Supreme Court granted several pending petitions for certiorari involving Second Amendment challenges to § 922(g)(1) post-Bruen, vacated the decisions below, and remanded to the appellate courts to reanalyze the challenges under Rahimi. The Court vacated the decisions regardless of whether the decision had upheld or rejected a Second Amendment challenge to § 922(g)(1). See, e.g., Range v. Att'y Gen. U.S.,

(3d. Cir. 2023) (en banc) (finding § 922(g)(1) unconstitutional under Bruen as applied to an individual with a prior felony conviction for food stamp fraud), vacated sub nom. Garland v. Range, No. 23-374,

(July 2, 2024); United States v. Jackson,

(8th Cir. 2023) (reaching the opposite conclusion for individual with prior felony convictions for selling drugs), vacated, No. 23-6170,

(July 2, 2024). noted that "some courts ha[d] misunderstood the methodology of

[its] recent Second Amendment cases" and explained that "[t]hese

precedents were not meant to suggest a law trapped in amber." 144

S. Ct. at 1897. It then held that the Second Amendment "permits

more than just those regulations identical to ones that could be

found in 1791" and thus does not require a "historical twin" to

justify a modern firearm restriction. Id. at 1897-98 (quoting

Bruen,

). Instead, the correct constitutional

inquiry is whether the restriction is "consistent with the

principles that underpin our regulatory tradition," meaning

whether it is "'relevantly similar' to laws that our tradition is

understood to permit."

at 1898 (quoting Bruen,

). "Why and how the regulation burdens the [Second Amendment]

right are central to this inquiry."

Applying this framework, the Supreme Court rejected

Rahimi's facial constitutional challenge to § 922(g)(8). See id.

This statute prohibits an individual from possessing a gun while

subject to a domestic violence restraining order if the order

includes a finding that the individual poses a "credible threat to

the physical safety" of a protected person.

(g)(8)(C)(i).

As the Supreme Court explained, Rahimi's facial attack

had to fail because the provision was constitutional as applied to

his own case. See Rahimi, 144 S. Ct. at 1898. A state court had issued a restraining order against Rahimi after finding that he

posed "a credible threat" to the "physical safety" of his

girlfriend and their child. Id. at 1895. The government argued

that disarming Rahimi was therefore justified because

§ 922(g)(8)(C)(i) was consistent with the principles behind the

surety and going-armed laws of the 1700s and early 1800s, which it

identified as relevant analogues. See id. at 1899-1902. The

Supreme Court agreed. "Taken together, the surety and

going[-]armed laws confirm what common sense suggests," the Court

concluded, that "[o]ur tradition of firearm regulation allows the

Government to disarm individuals who present a credible threat to

the physical safety of others." Id. at 1901-02.

Turning back to this case, Langston contends that

§ 922(g)(1) is unconstitutional under the Second Amendment as

applied to him. Our decision here, however, is not on the merits.

Instead, because Langston concedes that he never made his Second

Amendment claim to the district court, both parties agree that we

must review Langston's claim only for plain error. See United

States v. Sansone,

(1st Cir. 2024) ("Unpreserved

claims of error, if not deemed waived, are reviewed only for plain

error.").

To prevail under the plain-error standard, Langston must

show that (1) the district court committed an error; (2) that error

was "plain -- that is to say, clear or obvious," (3) the error affected his substantial rights, and (4) leaving the error

uncorrected would "seriously affect[] the fairness, integrity or

public reputation of judicial proceedings." United States v.

Ortíz-Mercado,

(1st Cir. 2019) (citations

omitted). We need not address the prongs of the plain-error

standard in any particular order. See Dimanche v. Mass. Bay

Transp. Auth.,

(1st Cir. 2018).

We start with the second prong, which requires us to

decide whether the error -- if there was one -- was "plain." As

we have explained, a plain error must be "indisputable." United

States v. Correa-Osorio,

(1st Cir. 2015) (quoting

United States v. Jones,

(1st Cir. 2014)). Thus,

"[t]o obtain relief from his conviction, . . . [Langston] must

show not only that [§ 922(g)(1)'s application to him was

unconstitutional] but also that it was obviously so." United

States v. Diaz,

(1st Cir. 2002). To demonstrate

that the statute was obviously unconstitutional, Langston can

point either to binding on-point precedent or show "that [his]

theory 'is compelled' by constitutional law, statute, regulation,

or other legal mandate." United States v. Grullon,

,

33 (1st Cir. 2021) (quoting United States v. Romero,

(1st Cir. 2018)). In the plain-error context, binding on-point

precedent means a decision that adopts Langston's argument that

§ 922(g)(1) is unconstitutional as applied to an individual with underlying convictions under title 17-A, sections 353 and

1103(1-A)(A) of the Maine Criminal Code. See Romero,

.

We conclude that Langston fails under the plain-error

standard for at least two reasons. First, there is no binding

on-point precedent: No case from the Supreme Court or our court

holds that § 922(g)(1) is unconstitutional in any of its

applications, much less as applied to an individual with previous

convictions under these sections of the Maine Criminal Code.

Second, the legal test from Rahimi does not "compel" the

conclusion that § 922(g)(1) is unconstitutional under the Second

Amendment as applied to defendants with Langston's criminal

history, as charged in his indictment. To be sure, an error can

be plain if an outcome contrary to the district court's decision

is "compelled" by "legal mandate." See Grullon, 996 F.3d at 33

(quoting Romero,

). Our precedent therefore allows

for the possibility that a statute that restricts a constitutional

right could be plainly unconstitutional under a newly articulated

legal test. But that is not the case here.

Rather than compelling the conclusion that § 922(g)(1)

is unconstitutional, the Supreme Court's Second Amendment cases

consistently reiterate, albeit in dicta, the presumptive

lawfulness of the felon-in-possession statute. The Court noted in

both Heller and McDonald that "nothing in [its decisions] should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons." Heller,

;

see also McDonald,

(repeating Heller's assurances).

Heller referred to felon-in-possession laws as "presumptively

lawful regulatory measures."

n.26. And Bruen

incorporated and expanded upon the Court's statements in Heller

and McDonald. See Bruen,

; see also

(Kavanaugh, J., concurring) ("[N]othing in our opinion should be

taken to cast doubt on longstanding prohibitions on the possession

of firearms by felons . . . ." (alteration in original) (quoting

Heller,

)).

Most importantly, the Supreme Court's majority opinion

in Rahimi, joined by eight justices, once again identified

prohibitions on the possession of firearms by felons as

"presumptively lawful." 144 S. Ct. at 1902 (quoting Heller,

n.26). Thus, Langston's argument that the legal test

laid out in Rahimi compels the conclusion that certain applications

of § 922(g)(1) violate the Second Amendment is contradicted by the

text of Rahimi itself.

To be sure, Langston presents a serious constitutional

claim that the Supreme Court has not yet resolved. As Langston

points out, Rahimi held only that an individual may be temporarily

disarmed, consistent with the Second Amendment, if a court has

found that the individual poses a credible threat to the physical safety of another. See id. at 1903. Still, the Supreme Court has

stated repeatedly over sixteen years, from Heller to Rahimi, that

felon-in-possession laws are presumptively lawful. Thus, on

plain-error review, we cannot agree with Langston that the mere

fact that the government did not introduce historical evidence to

support the constitutionality of § 922(g)(1) makes it clear and

obvious that Langston's conviction violates the Second Amendment.

At times, Langston has framed his Second Amendment claim

as a challenge to § 922(g)(1) as applied to all individuals with

nonviolent underlying convictions. To the extent that Langston is

bringing this alternative claim, we conclude that his challenge

fails under plain-error review for another reason: It would not

have been clear and obvious to the district court that Langston

fell within this category of individuals, given his prior

conviction for heroin trafficking.2 See United States v.

Torres-Rosario,

(1st Cir. 2011) (suggesting that

drug dealing was likely to be considered a violent felony).

We note, too, that Langston has prior convictions for 2

violent criminal conduct. For example, Langston's criminal history report shows that he was convicted of domestic violence assault in 2008 after punching his girlfriend in the face and grabbing her by her throat. Although the government did not include this conviction as an underlying offense in the indictment, it indicated at oral argument that it would have sought to file a superseding indictment relying on this conviction had Langston raised his Second Amendment argument at the district court. In sum, Langston fails to show that § 922(g)(1) clearly

and obviously violates the Second Amendment as applied to him,

given his previous convictions under Maine law for theft and drug

trafficking. We therefore reject his Second Amendment challenge.3

B. Fourth Amendment Challenge to the Investigatory Stop

When Langston pleaded guilty, he retained the right to

appeal the district court's denial of his suppression motion. We

turn to that challenge now.

Langston argues that the PPD officers violated the

Fourth Amendment by stopping him outside The Bar. See U.S. Const.

amend. IV; United States v. Tiru-Plaza,

(1st

Cir. 2014) (explaining that the Fourth Amendment's protections

3 Although we always conduct our own independent analysis of Supreme Court precedent, the parties could not cite to any case from another circuit court that has held the felon-in-possession statute to violate the Second Amendment, in any of its applications, under the plain-error standard. The only circuit to reach the merits of an unpreserved constitutional challenge to § 922(g)(1) did so under distinguishable circumstances, and the opinion has been vacated in the wake of Rahimi. See United States v. Duarte,

(9th Cir.), reh'g en banc granted, opinion vacated, No. 22-50048,

(9th Cir. July 17, 2024). In Duarte, the United States Court of Appeals for the Ninth Circuit reviewed de novo the statute's constitutionality under Bruen, even though the defendant had not raised his Second Amendment argument to the district court. See

. The court concluded that the defendant had "good cause" under Federal Rule of Criminal Procedure 12(b)(4)(B)(c)(1) for failing to raise the issue in the district court because circuit precedent foreclosed the argument and Bruen had not yet been decided. See

By contrast, as we noted above, Bruen was decided nine months before Langston's sentencing, so he had the opportunity to raise his argument to the district court. against unreasonable search and seizure extend to "brief

investigatory stops" that fall "short of traditional arrest"

(quoting United States v. Arvizu,

(2002))). For

a stop like this to be constitutional under the Fourth Amendment,

officers must have "a reasonable suspicion supported by

articulable facts that criminal activity 'may be afoot.'"

Tiru-Plaza,

(quoting United States v. Sokolow,

(1989)). Langston claims that the district court erred

by determining that the officers had that reasonable suspicion

here.

The district court's reasonable suspicion determination

is a legal conclusion that we review de novo.

But in doing

so, we "give appropriate weight to the inferences drawn by the

district court and the on-scene officers, recognizing that they

possess the advantage of immediacy and familiarity with the

witnesses and events."

After holding an evidentiary hearing, the district court

rejected Langston's Fourth Amendment challenge in a carefully

reasoned opinion. It determined that the officers acted with

reasonable suspicion based on three sources of information: "(1)

the various accounts received from the three informants; (2) [the

officers'] own observations of [Langston's] appearance and

behavior immediately preceding the stop; and (3) their law enforcement training and experience, which included their

experience policing" this neighborhood.

On appeal, Langston focuses on this first category: the

accounts from the various informants. He argues that the district

court erred by considering both 911 calls by Shawn, as well as the

information conveyed by the bar bouncer and the bar manager, in

its reasonable suspicion analysis. Instead, Langston argues, only

two accounts are relevant here: Shawn's second 911 call, and the

off-site bar manager's "third-hand" report from his on-site

security guard that a patron had a concealed gun. That's because,

in Langston's view, there were two separate incidents at The Bar

that night, and the police officers and the court should not have

considered information related to the earlier incident (the fight)

in evaluating whether Langston's stop was reasonable.

Viewing the record in this piecemeal fashion would

violate our precedent. When evaluating whether reasonable

suspicion exists, "our task is not to perform a divide-and-conquer

analysis but to look at the totality of the circumstances." United

States v. Harrington,

(1st Cir. 2022) (internal

quotation marks omitted) (quoting United States v. Cruz-Rivera,

(1st Cir. 2021)). "[T]he relevant inquiry is an

objective one based on all 'the cumulative information available

to [the officers]' at the time of the search [or stop]." United

States v. Qin,

, 349 n.7 (1st Cir. 2023) (quoting Arvizu,

). Indeed, Langston admits that the

totality-of-the-circumstances standard applies. And he could not

point to any case law suggesting that, in conducting a

totality-of-the-circumstances analysis, we should disregard

relevant information known to the officers simply because they

already conducted some initial investigation of that information.

Langston also argues that the bar manager's 911 call,

which conveyed "third-hand" information from an unknown source,

cannot on its own give rise to a reasonable suspicion of criminal

activity. In fact, Langston argues, that tip did not even indicate

that he was engaged in any criminal behavior, given that carrying

a concealed gun is not a crime in Maine. This argument, however,

again misstates the legal standard. True, an anonymous,

uncorroborated hearsay tip, on its own, may lack "sufficient

indicia of reliability to provide reasonable suspicion to make

[an] investigatory stop." Florida v. J.L.,

, 270

(2000) (quoting Alabama v. White,

(1990)); see

United States v. Monteiro,

(1st Cir. 2006).

But the police did not act on the bar manager's tip alone. The

full picture here included Shawn's two 911 calls, the officers'

conversation with the bar bouncer (which validated the details

from Shawn's first 911 call), the bar manager's call, and the

officers' observations at the scene. Considering these informational sources together, we

conclude that the totality of the circumstances gave rise to a

reasonable suspicion that Langston was about to engage in criminal

activity -- public fighting, potentially with a gun on hand.

Shawn's first 911 call, combined with the officers' conversation

with the bar bouncer, suggested that a fight had occurred, and

further trouble was likely if the parties encountered each other

again that night. Shawn's second call, combined with the bar

manager's account, suggested that a second fight was imminent

because one of those parties had returned to The Bar with a weapon.

And when the police arrived on the scene, their observations of

Langston's interactions with another person outside The Bar and

Langston's appearance, which matched the informants' descriptions,

corroborated these accounts. Based on these circumstances, we

agree with the district court that that the officers had reasonable

suspicion to stop Langston outside The Bar that night.

C. Sentencing Challenges

Langston's remaining challenges concern the district

court's sentencing decisions. To begin, he argues that the

district court erred by enhancing his base offense level on the

ground that he possessed a firearm during a felony assault on a

police officer. Next, he contends that the district court

considered unreliable hearsay evidence in concluding that he

violated the conditions of his pretrial release by drinking. Finally, and by extension, Langston argues that the district court

clearly erred by finding that he had not accepted responsibility

for his offense. We disagree on each of these points.

1. The Felony Assault Enhancement

We begin with Langston's challenge to the district

court's four-level sentencing enhancement under section

2K2.1(b)(6)(B) of the U.S. Sentencing Guidelines. This provision

allows a district court to increase a defendant's base offense

level "[i]f the defendant . . . used or possessed any firearm or

ammunition in connection with another felony offense." U.S.S.G.

§ 2K2.1(b)(6)(B). The district court applied the enhancement

based on Langston's possession of the firearm during an assault on

a police officer -- a felony under Maine law. See Me. Rev. Stat.

Ann. tit. 17-A, § 752-A.

Ordinarily, "[when] a defendant challenges the factual

predicate supporting the district court's application of a

sentencing enhancement, 'we ask only whether the court clearly

erred in finding that the government proved the disputed fact by

a preponderance of the evidence.'" United States v. Cannon,

(1st Cir. 2009) (quoting United States v. Luciano,

(1st Cir. 2005)). Langston concedes, however,

that he did not object to the enhancement before the district court

and thus forfeited this claim. Still, he urges us to find that

the district court plainly erred by applying this enhancement. The government, for its part, argues that we should forgo review

of this argument altogether because Langston affirmatively waived

it when he told the district court that he had no objection to the

PSR, which recommended the four-level increase.

We need not resolve the parties' forfeiture versus

waiver disagreement. "Where a defendant's claim would fail even

if reviewed for plain error, we have often declined to decide

whether the defendant's failure to raise the issue below

constituted waiver or mere forfeiture." United States v.

Acevedo-Sueros,

(1st Cir. 2016). And here,

Langston has failed to show that the district court's application

of the enhancement amounted to plain error.

Langston contends that the district court erred by

applying the enhancement because his conduct at The Bar could

support only a misdemeanor charge for refusing to submit to arrest

or detention under Maine law. In support of this argument,

Langston points to two facts: Initially, he was arrested only for

refusing to submit to arrest or detention, and the altercation

with the officers occurred because he tried to get away from,

rather than fight with, them.

Even assuming Langston is correct on both these facts,

the district court's application of the enhancement still would

not be clearly and obviously wrong. See Ortíz-Mercado,

. Under Maine law, an individual can be liable for assault on an officer regardless of whether they are trying to engage or

disengage with the officer. See Me. Rev. Stat. Ann. tit. 17-A,

§ 752-A(1)(A) ("A person is guilty of assault on an officer

if . . . [h]e intentionally, knowingly or recklessly causes bodily

injury to a law enforcement officer while the officer is in the

performance of his official duties."). And whatever the basis for

his initial arrest at The Bar, Langston's PSR shows that the state

did charge him with assault on an officer in connection with this

incident. Accordingly, we reject Langston's argument that the

district court plainly erred by applying the enhancement.

2. Reliability of Hearsay Evidence

We turn next to Langston's challenge to the district

court's reliance on several government exhibits in concluding that

Langston violated his pretrial release conditions by drinking at

The Brook casino. Langston contends that the district court erred

by admitting three hearsay exhibits: the protective custody report

from the Seabrook police and two emails from casino managers

forwarding information from casino records about what drinks

Langston was served that night. Langston argues that these

exhibits lacked sufficient indicia of trustworthiness to support

their probable accuracy and thus the district court abused its

discretion by relying on them to conclude that Langston consumed

alcohol at the casino. See United States v. Rosa-Borges,

(1st Cir. 2024) (explaining that district courts may rely on hearsay evidence in making factual findings at sentencing, so

long as the evidence is supported by "sufficient indicia of

reliability"); United States v. Castillo-Torres,

(1st Cir. 2021) ("Determinations of reliability are reviewed for

abuse of discretion.").

Langston's arguments boil down to two claims: (1) the

police report got the facts wrong about the poker-hand dispute,

which undermines everything in the report, including the officer's

personal observation that Langston was intoxicated,4 and (2) the

emails from the casino managers are unreliable because the managers

had no personal knowledge of whether the drinks served to Langston

contained alcohol. We find neither claim convincing.

First, we see no reason why the officer's allegedly

erroneous description of the poker-hand dispute would undermine

the reliability of other statements in his report, including that

the officer could "smell the alcohol coming from [Langston's]

person" and that "it was clear that he just had too much to drink."

4 Langston also argues that the report is unreliable because it "depicts a patent misuse of the New Hampshire protective custody [statute]." He contends that the officer's observation that Langston smelled like alcohol was insufficient to take him into custody. But the relevant statute allows an officer to take into protective custody any person "who, in the judgment of the officer, is intoxicated."

-B:3(I). We see nothing in the statute, nor does Langston direct us to any authority, that suggests that an officer must observe certain other indicia of intoxication before taking a person into protective custody. Nor do we see the connection between this argument and the reliability of the officer's observations in the report. The officer's understanding of the poker-hand dispute does not

bear on his ability to make these routine observations. Second,

the casino's business records -- documenting that Langston

consumed alcohol -- are "entirely compatible" with and

corroborated by other admissible evidence in the record. See

United States v. Green,

(1st Cir. 2005). That

other evidence includes Gigliello's email, which recounted that

Langston "appeared intoxicated" and was "unsteady on his feet,"

and surveillance footage from the police cruiser, in which Langston

can be seen singing and slurring his speech.

Indeed, as the district court explained at sentencing,

it had reviewed the surveillance footage of Langston's behavior in

the back of the police cruiser and compared that behavior to its

own observations of Langston during his previous court

appearances. Langston "acted so different [in the back of the

cruiser] than he ha[d] any other time," the court noted, adding:

"He was singing to himself, he was groggy, his voice sounded

inebriated." Based on this video, the court concluded, "there's

no question . . . that he was inebriated."

Under these circumstances, we find that the district

court did not abuse its discretion by admitting the police report

and casino records as more evidence that Langston had consumed

alcohol at The Brook. 3. Acceptance-of-Responsibility Credit

In his last argument on appeal, Langston challenges the

district court's decision to deny him a three-level reduction for

accepting responsibility for his offense. Langston argues that,

even if he did violate his bail conditions, the violations were

too "attenuated" from his underlying offense to justify denial of

the acceptance-of-responsibility credit.

Under the Sentencing Guidelines, a defendant who

"clearly demonstrates acceptance of responsibility" is entitled to

a two-level decrease in their offense level. U.S.S.G. § 3E1.1(a).

A defendant who qualifies for this two-level decrease may also

obtain another one-level decrease if they "timely notify[]

authorities of [their] intention to enter a plea of guilty," among

other requirements. Id. § 3E1.1(b).

Whether a defendant has accepted responsibility for

their offense is a "factbound determination" that we review for

clear error. United States v. McCarthy,

, 62-63 (1st

Cir. 2022) (quoting United States v. Jordan,

(1st

Cir. 2008)). Because "[t]he sentencing court is steeped in the

nuances of the case, . . . we accord substantial deference to its

determination that acceptance of responsibility has not been

shown."

. For this reason, "[w]e will not reverse

unless -- after a careful review of all the relevant facts -- we

are 'left with a definite and firm conviction that a mistake has been committed.'"

(quoting Brown v. Plata,

(2011)).

The district court denied Langston the

acceptance-of-responsibility credit based in part on his violation

of his pretrial release conditions. Under our precedent, "a

defendant's failure to comply with conditions of a bond [can] be

highly relevant to assessing the sincerity of the defendant's

contrition." United States v. McLaughlin,

(1st

Cir. 2004) (alteration in original) (quoting United States v.

Hooten,

(5th Cir. 1991)). Langston tries to

distinguish this precedent by arguing that the defendant in Hooten

breached the "core conditions" of his pretrial release while

Langston's "putative violation was isolated and technical in

nature." But the court did not deny Langston the credit simply

because he consumed alcohol or failed to notify his probation

officer about the incident at the casino.

Instead, the district court based its decision on the

overall similarities between the incidents at The Bar and The

Brook. As the court explained, both times, Langston became

disruptive and then non-cooperative with police after drinking.

At The Bar, he engaged in a fight, and at The Brook, he became

verbally combative and "was asked to leave multiple times and

refused." Each time, when police officers arrived on the scene,

Langston refused to comply with their instructions. At The Bar, Langston did "not cooperat[e] with" and "resist[ed]" the police

officers when they told him to put his hands on his head.

Similarly, at The Brook, Langston "refuse[d] to cooperate with the

police" by declining to identify himself. We cannot say that the

court clearly erred by finding that these similarities

demonstrated that Langston had not "accepted responsibility in any

authentic sense" for his conduct at The Bar. Jordan,

.

We also reject Langston's argument that the district

court "struck the wrong balance,"

, by finding that the

casino incident outweighed Langston's evidence of acceptance of

responsibility, i.e., his guilty plea, see McLaughlin,

. Whether a "single adverse incident" outweighs a defendant's

"rehabilitative efforts" is a "quintessential judgment call" for

the sentencing court. Jordan,

. Nothing in the

record suggests that the court clearly erred in balancing the

scales here, especially given that it cited an additional adverse

incident (not at issue in the appeal) in reaching its conclusion.

III. CONCLUSION

For all these reasons, we affirm Langston's conviction

and sentence.