United States Court of Appeals For the First Circuit

No. 23-1939

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN ELLIOTT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Kayatta, Selya, and Gelpí, Circuit Judges.

Michael B. Skinner and Law Office of Michael B. Skinner on brief for appellant. Jane E. Young, United States Attorney, and Aaron Gingrande, Assistant United States Attorney, on brief for appellee.

August 27, 2024 SELYA, Circuit Judge. Defendant-appellant Brian Elliott

challenges his within-the-range incarcerative sentence of 120

months, which followed his guilty plea to drug and firearm

violations. See Fed. R. Crim. P. 11(c)(1)(A)-(B). For the reasons

elucidated below, we conclude that the district court did not abuse

its discretion in applying a six-level enhancement for assaulting

a police officer during either the offense of conviction or the

offender's flight therefrom. See USSG §3A1.2(c)(1). We further

conclude that the court appropriately weighed the sentencing

factors made relevant by

(a). Given these

conclusions, we affirm the challenged sentence.

I

We briefly rehearse the relevant facts and travel of the

case. "Where, as here, a sentencing appeal follows a guilty plea,

we glean the relevant facts from the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report (PSI

Report), and the record of the disposition hearing." United States

v. Rivera-Gerena, __ F.4th __, __ (1st Cir. 2024) [No. 23-1066,

slip op. at 2] (quoting United States v. Vargas,

(1st Cir. 2009)).

A

On an evening in May of 2021, a police officer in

Goffstown, New Hampshire, observed a vehicle being driven on a

public highway without the use of headlights. The officer

- 2 - activated the emergency lights on his patrol car and attempted to

compel the offending vehicle to pull over to the side of the road.

The vehicle did not oblige but, rather, maintained its speed.

After the officer activated the patrol car's siren, the

vehicle's speed increased, and it crossed the center line,

traveling on the wrong side of the road. The officer continued

the chase, but he could not maintain a close tail due to the

vehicle's erratic path. In a subsequent police interview, the

appellant admitted that he was the driver of the errant vehicle

that the officer was pursuing.

The chase eventually proved fruitful, and the pursued

vehicle came to a halt. When the officer caught up and parked

behind the stopped vehicle, the appellant exited the driver's side

door and started to flee. The officer chased the appellant on

foot through a mercantile parking lot and up a chain link fence.

From his perch on the fence, the officer warned the appellant that

— if he did not stand down — the officer would deploy his taser.

The officer testified that the appellant — in response to this

warning — aimed a .45 caliber semiautomatic handgun at him and

exclaimed, "I have a gun." According to the officer, this

exclamation was followed by the appellant's admonition that "I'm

gonna shoot," "I'm gonna shoot you," or something to that effect.

The officer scrambled to take cover, while the appellant

beat a hasty retreat. Other officers arrived shortly thereafter,

- 3 - but they could not locate the appellant anywhere in the area.

Withal, the officer who had initiated the pursuit came across a

backpack that he had seen the appellant wearing during the chase.

The backpack contained over 100 rounds of .45 caliber ammunition,

several rounds of twelve-gauge ammunition, and approximately 120

grams of fentanyl. A local business owner later informed the

authorities that he had discovered a revolver near the scene.

The appellant's freedom was short-lived: two days

later, the authorities located him at a hotel in Manchester, New

Hampshire. They arrested the appellant and recovered a .45 caliber

pistol, one round of .45 caliber ammunition, and a small amount of

fentanyl. In a subsequent interview, the appellant admitted to

possessing both the revolver that had been found near the fence

and the pistol recovered from the hotel room. And even though the

appellant contests to possessing the fentanyl in the backpack, he

asserted that he had "found" it.

B

In due course, a federal grand jury sitting in the

District of New Hampshire returned an indictment against the

appellant, which embodied four counts: count 1 charged him with

possession with intent to distribute at least forty grams of

fentanyl, see

(b)(1)(B); counts 2 and 4 charged him

with possession of firearms and ammunition after having been

convicted of a felony, see

(g)(1); and count 3

- 4 - charged him with possession of a firearm in furtherance of a drug

trafficking crime, see

§ 924(c)(1)(A). After some preliminary

skirmishing, the appellant agreed to plead guilty to counts 1, 2,

and 4 in exchange, inter alia, for the government's agreement to

abandon count 3 and to recommend a sentence within the guideline

sentencing range. See Fed. R. Crim. P. 11(c)(1)(A)-(B). At the

change-of-plea hearing, the district court accepted the plea

agreement.

The PSI Report recommended a base offense level of

twenty-four based on the drug quantity (forty-plus grams of

fentanyl) stipulated in the plea agreement. See USSG §2D1.1(c)(8).

The parties, however, remained at odds over the applicability vel

non of a six-level enhancement for assaulting a law enforcement

officer during the offense of conviction or flight therefrom. See

id. §3A1.2(c)(1).

At the disposition hearing, the court heard testimony

from the pursuing officer who described the encounter in which the

appellant allegedly pointed a firearm at him. The court found

this testimony credible and applied the enhancement. With other

adjustments, not controverted here, the court calculated a total

offense level of twenty-nine. Combined with the appellant's

criminal history category (III), this total offense level yielded

a guideline sentencing range of 108 to 135 months.

- 5 - In considering the statutory sentencing factors, see

(a), the court recognized several mitigating items,

such as the appellant's childhood struggles and his untreated drug

addiction. It proceeded to weigh these items against the

seriousness of the offense conduct and the appellant's extensive

criminal record (which included several probation violations).

The court emphasized the extreme risks posed by both fentanyl and

firearms. It added that the appellant's decision to point a gun

at a police officer was especially troubling. With these

considerations in mind, the court concluded that a 120-month

incarcerative term "adequately reflect[ed] the seriousness of this

offense, promot[ed] respect for the law, provid[ed] just

punishment, afford[ed] adequate deterrence, general and specific,

and provid[ed] protection to the public for further crimes" that

the appellant might commit. The court proceeded to impose

concurrent 120-month sentences on the counts of conviction —

sentences that were in the bottom half of the guideline sentencing

range.

This timely appeal followed.

II

In this venue, the appellant presses two assignments of

error. First, he asserts that the district court erred by applying

the enhancement for assaulting a police officer during the

commission of an offense or flight therefrom. See USSG

- 6 - §3A1.2(c)(1). Second, he asserts that the district court imposed

a substantively unreasonable sentence. Neither assertion is

persuasive.

A

When confronted with a defendant's appeal of his

sentence, "[w]e first determine whether the sentence imposed is

procedurally reasonable (that is, free from reversible error in its

procedural aspects) and then determine whether it is substantively

reasonable." United States v. Demers,

(1st Cir.

2016). Within this bifurcated structure, "we review the

[sentencing] court's interpretation and application of the

sentencing guidelines de novo and assay any subsidiary findings of

fact for clear error." United States v. Walker,

(1st Cir. 2011). The clear error standard is demanding. See United

States v. Matos,

(1st Cir. 2003). Under its

auspices, we will not "disturb either findings of fact or

conclusions drawn therefrom unless the whole of the record compels

a strong, unyielding belief that a mistake has been made."

.

B

We start with the appellant's claim of procedural error.

For a sentence to pass procedural muster, the sentencing court must

have correctly calculated the guideline sentencing range. See

Demers,

. Here, the appellant contends that his

- 7 - guideline sentencing range was impermissibly inflated because the

court erroneously applied the section 3A1.2(c)(1) enhancement for

assaulting a police officer during the offense or flight therefrom.

In particular, he challenges the officer's testimony that he (the

appellant) drew and pointed his firearm and, thus, assaulted the

officer while fleeing. As we explain below, this challenge lacks

force.

Of course, the government must prove the applicability

of a sentencing enhancement by a preponderance of the evidence.

See Walker,

. For the section 3A1.2(c)(1)

enhancement to apply, the defendant must have known that his actions

would likely cause an officer to fear that he would face the

prospect of substantial bodily injury. See United States v. Lee,

(1st Cir. 1999). Where, as here, the sentencing

court relied on witness testimony to invoke the enhancement, our

review of the court's appraisal of that testimony is for clear

error. See Walker,

. Without "objective evidence

that contradicts a witness's story or a situation where the story

itself is so internally inconsistent or implausible that no

reasonable factfinder would credit it, . . . 'the ball game is

virtually over' once a district court determines that a key witness

is credible." United States v. Guzmán-Batista,

(1st Cir. 2015) (quoting Rivera-Gómez v. de Castro,

(1st Cir. 1990)).

- 8 - So it is in this case. The sentencing court supportably

determined that the officer's testimony recounting the appellant's

actions while fleeing was credible. The appellant neither presents

countervailing evidence nor calls to our attention any internal

inconsistency or implausibility that suffices to undermine the

challenged testimony.

To fill this void, the appellant offers several reasons

as to why we should discredit the officer's testimony and set aside

the district court's assessment. For one thing, the appellant

points out that the pursuing officer did not claim to see him

carrying a firearm during the chase. For another thing, the

appellant points out that the security footage did not capture the

alleged assault. Moreover, the officer failed to turn on his body

camera until after the alleged assault. Then, too, the officer

claimed to have informed his supervisor and his dispatcher about

the assault, but neither of those officers reported this detail.

Finally, the police department to which the officer belonged

sanctioned him for dishonesty in a 2018 report unrelated to the

offenses at issue here.

With these facts as a predicate, the appellant suggests

that no evidence directly affirms the pursuing officer's account

of the assault. And in addition, the circumstances suggest a

mistaken or fabricated account of the events. Consequently — the

- 9 - appellant insists — the sentencing court could not have rested its

decision to apply the enhancement on such a porous foundation.

The appellant's challenge is unconvincing. That the

officer did not see a firearm during the chase until the appellant

pointed it at him does not render it unlikely that the appellant

was carrying one. So, too, the absence of security footage

recording the assault does not, in and of itself, disprove the

officer's account. At most, it amounts to the absence of

corroborating evidence.

In any event, the security footage was not simply a blank

slate. It did show the appellant leaving his vehicle to continue

his flight on foot — and there appeared to be a firearm in his

hand. What is more, officers recovered firearms and ammunition

near the route of the chase and in the appellant's hotel room (when

they arrested him). These facts strongly suggest that the appellant

possessed a firearm similar to the one that the pursuing officer

described.

Nor does the officer's failure to activate his body

camera carry sufficient weight to bolster the appellant's position.

After all, that omission is subject to competing inferences. On

the one hand, it may have been an intentional act designed to cover

up ensuing misconduct; on the other hand, it may have been an

understandable oversight in the heat of the moment. There was no

clear error in the district court's decision to draw the latter

- 10 - inference. See Valentín v. Hosp. Bella Vista,

(1st Cir. 2001) ("[T]he case law makes clear that a district court's

choice between two plausible, but conflicting, interpretations of

a factual scenario cannot amount to clear error."); see also Guzmán-

Batista,

(explaining that, when defendant

presented "compelling evidence" of his version of events that

"create[d] two possible alternative versions of the events,"

sentencing court's choice between those alternatives could not have

been clearly erroneous). Much the same can be said for the absence

of any mention of the assault in some of the police reports.

The short of it is that some of the circumstances

surrounding the alleged assault may be thought to point in different

directions. But because these circumstances leave room for

differential factfinding, it was the sentencing court's prerogative

to draw such reasonable inferences as it deemed appropriate from

the facts.

To be sure, the fact that the officer had lied in the

past may raise credibility concerns. But such concerns are

predominantly the province of the sentencing court. See United

States v. St. Cyr,

(1st Cir. 1992) ("In the

sentencing phase, credibility determinations lie within the domain

of the district court."). As such, they are largely beyond our

purview on appeal. See Guzmán-Batista,

("[A]

challenge based on a district court's credibility determination

- 11 - 'can virtually never be clear error.'" (quoting Anderson v. City

of Bessemer,

(1985))).

To say more about this claim of error would be

supererogatory. The appellant has identified certain weaknesses

in the government's evidentiary presentation, but in the last

analysis, he simply does not provide any compelling basis in law

or fact such as would justify disturbing the district court's

application of the challenged enhancement. Clear error is clearly

absent.

C

This leaves the appellant's claim that his sentence was

substantively unreasonable. In support, he argues that the

sentencing court ignored several mitigating factors that counseled

in favor of a briefer term of incarceration. Our review of this

claim of error is for abuse of discretion. See Gall v. United

States,

(2007).

A sentence is substantively reasonable if it "reflects

'a plausible sentencing rationale and a defensible result.'"

United States v. Soto-Soto,

(1st Cir. 2017)

(quoting United States v. Martin,

(1st Cir. 2008)).

There is not one reasonable sentence in any given case but, rather,

a wide universe of reasonable sentences. See United States v.

Rodríguez-Adorno,

(1st Cir. 2017). A sentence

that falls within the guideline sentencing range for a given offense

- 12 - is rarely outside the universe of reasonable sentences for that

offense. See United States v. Carrasquillo-Vilches,

(1st Cir. 2022) ("[A] sentence — like this one — that falls

'within a properly calculated guideline sentencing range is

entitled to significant weight.'" (quoting United States v.

Angiolillo,

(1st Cir. 2017))). It follows that a

defendant who challenges a within-the-range sentence must bear a

heavy burden. See United States v. Pelletier,

(1st Cir. 2006). In the case at hand, the appellant has failed to

shoulder that burden.

To begin, the district court explained that it had

considered many of the mitigating factors to which the appellant

now adverts. For instance, the court acknowledged the appellant's

childhood struggles and his untreated drug addiction.

To be sure, the sentencing court did not address each and

every mitigating factor — but it was not obliged to do so. See

Rivera-Gerena, __ F.4th at __ [No. 23-1066, slip op. at 9-10].

When a sentencing court imposes a within-the-range sentence and the

record shows that the court listened to the defendant's arguments

and supporting evidence, a reviewing court may infer that "[t]he

judge then simply found the[] circumstances insufficient to warrant

a sentence lower than the Guidelines range." Rita v. United States,

(2007); see Rivera-Gerena, __ F.4th at __ [No.

23-1066, slip op. at 11]. This is such a case: the mere fact

- 13 - "[t]hat the sentencing court chose not to attach to certain of the

mitigating factors the significance that the appellant thinks they

deserved does not make the sentence unreasonable." United States

v. Clogston,

(1st Cir. 2011).

Here, moreover, the court identified two specific

considerations that provided ample support for the sentence

imposed. First, it emphasized the danger that the appellant had

created for himself and the community by distributing fentanyl and

possessing firearms with a large supply of ammunition. The

lethality of this conduct hardly can be doubted.

We hasten to add that these dangers were not merely

theoretical. As the district court observed, one of these dangers

became a stark reality when the appellant decided to pull a gun on

the pursuing officer. In the court's view, reasonably held, this

conduct "was dangerous[,] could have gotten [the appellant]

killed[,] and certainly threatened a police officer."

Second, the court emphasized the "concerning and

persistent" nature of the appellant's "rather lengthy criminal

history and history of probation violations." This was a reasonable

viewpoint, and we give it weight. See Rivera-Gerena, __ F.4th at

__ [No. 23-1066, slip op. at 10].

To sum up, we conclude that the stated reasons

constituted sufficient justification for the sentence imposed

because they reflect the seriousness of the offense and the need

- 14 - to afford adequate deterrence, to protect the public from further

crimes, and to promote respect for the law. See

(a)(2)(A)-(C). Put another way, the district court's

sentencing rationale was plausible. The appellant has failed to

show how the court abused its discretion by weighing the aggravating

circumstances heavily while correspondingly discounting the

mitigating evidence. See United States v. Madera-Ortiz,

(1st Cir. 2011) (holding that defendant who challenges

within-range sentence needs to "adduce fairly powerful mitigating

reasons and persuade us that the district judge was unreasonable

in balancing pros and cons despite the latitude implicit in saying

that a sentence must be 'reasonable'" (quoting United States v.

Navedo-Concepción,

(1st Cir. 2006))). To cinch the

matter, the end result of the sentencing process — a sentence in

the bottom half of the guideline sentencing range — was well within

the wide universe of reasonable sentences and, thus, was readily

defensible. Viewed against this backdrop, the appellant's claim

of error founders.

III

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 15 -