RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0183P (6th Cir.) File Name: 00a0183p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 98-6522 v.  > CHESTER L. ADAMS,  Defendant-Appellant.  1 Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 97-20267—Julia S. Gibbons, Chief District Judge. Argued: March 6, 2000 Decided and Filed: June 1, 2000 Before: SILER and GILMAN, Circuit* Judges; O’MALLEY, District Judge. _________________ COUNSEL ARGUED: Stephen B. Shankman, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for

* The Honorable Kathleen M. O’Malley, United States District Judge for the Northern District of Ohio, sitting by designation.

1 2 United States v. Adams No. 98-6522 No. 98-6522 United States v. Adams 11

Appellant. Tony R. Arvin, ASSISTANT UNITED STATES payment would be impossible. Id. at 982. Chester, on the ATTORNEY, Memphis, Tennessee, for Appellee. other hand, was only twenty-nine years old at the time of his ON BRIEF: Stephen B. Shankman, OFFICE OF THE sentencing and has a life sentence during which to pay off his FEDERAL PUBLIC DEFENDER FOR THE WESTERN $23,890 restitution obligation through the Federal Bureau of DISTRICT OF TENNESSEE, Memphis, Tennessee, for Prisons’ Inmate Financial Responsibility Program. Under Appellant. Tony R. Arvin, ASSISTANT UNITED STATES these circumstances, the amount of the restitution order does ATTORNEY, Memphis, Tennessee, for Appellee. not constitute an abuse of the district court’s discretion. _________________ III. CONCLUSION OPINION For all of the reasons set forth above, we REVERSE the _________________ district court’s sentencing as to count twenty-six and AFFIRM as to the remainder of the judgment, sentence, and RONALD LEE GILMAN, Circuit Judge. Chester Adams restitution order. and his brother, Terry Adams, committed a series of carjackings and armed robberies in Memphis, Tennessee during August and September of 1996. (For the sake of simplicity, this opinion will refer to the two brothers by their first names.) On June 25, 1998, a federal grand jury in the Western District of Tennessee returned a twenty-six count indictment against Chester, charging him with carjacking, robbery, attempted robbery, and possessing firearms and ammunition as a convicted felon. Chester was tried and convicted on all counts. The district court sentenced him to a term of life plus 205 years, and he was ordered to pay $23,890 in restitution. In this appeal, Chester raises four challenges to his conviction, sentence, and restitution order. For the reasons set forth below, we REVERSE the district court’s sentencing on one of the four counts of firearms possession and AFFIRM as to the remainder of the judgment, sentence, and restitution order. I. BACKGROUND A. Factual background The first known crime committed by the Adams brothers was a carjacking on August 15, 1996, during which they held up the driver of a black 1996 Lexus at a self-serve carwash in midtown Memphis. The brothers next attempted to rob a Kroger grocery store. Early in the morning of August 26, 10 United States v. Adams No. 98-6522 No. 98-6522 United States v. Adams 3

finding, we affirm Chester’s three-level sentencing 1996, with the store still closed, they climbed atop the enhancement. building and began cutting a hole through the roof. They were armed with 9-millimeter handguns and were carrying D. Restitution order police radio scanners. As they were cutting the hole, however, it began to rain, and the water leaking through the Chester finally argues that, pursuant to the recent case of hole set off the store’s alarm. At that point, the Adams United States v. Dunigan, 163 F.3d 979 (6th Cir. 1999), the brothers abandoned their plan. district court erred in ordering him to pay $23,890 in restitution. This court in Dunigan held that a district court On August 29, 1996, the brothers successfully carried out must consider “the amount of the loss sustained by any victim a similar plan at the nearby Walgreens drugstore. They cut a as a result of the offense, the financial resources of the hole in the store’s roof before the store opened and Terry defendant, the financial needs and earning ability of the descended into the store. Chester waited across the street and defendant and the defendant’s dependents, and such other served as a look-out. When the manager and bookkeeper factors as the court deems appropriate” when ordering arrived, Terry forced them to open the store’s safe at restitution. Id. at 981. Chester contends that “[t]he district gunpoint. He then tied up the employees and fled with the court made no finding that the defendant had even a minimal money. chance to pay almost $24,000 in restitution.” The Adams brothers’ next crime was another carjacking on We review de novo whether a restitution order is legally the night of August 31, 1996, during which they held up a permissible. See Dunigan, 163 F.3d at 981. If a restitution woman and stole her Nissan Pathfinder. Then, on order is appropriate, the amount of restitution will not be September 3, 1996, the brothers robbed an employee of disturbed unless the district court abuses its discretion. See Simply Six Fashions as she was attempting to deposit the id. We conclude that the district court in the present case did store’s receipts at a bank in midtown Memphis. not abuse its discretion in fixing the amount of restitution. First, the burden is on the defendant to demonstrate that a Two days later, the brothers entered the EZ Pawn Shop in restitution order far exceeds his resources and earning Memphis wearing masks and carrying handguns. They potential. See id. at 982; see also United States v. Frost, 914 sprayed the shop’s employees and customers with pepper F.2d 756, 774 (6th Cir. 1994) (holding that a district court spray and stole twelve handguns from the store. need not make specific findings concerning a defendant’s financial condition). Chester has not made such a showing in At approximately 2 a.m. on the morning of September 12, this case. Second, a restitution order is permissible even if 1996, Memphis Police Officer Donna Roach spotted the the defendant lacks the present ability to pay. See United stolen black Lexus in the parking lot of an Exxon Tigermart. States v. Blanchard, 9 F.3d 322 (6th Cir. 1993). Officer Roach saw Terry get into the Lexus with Chester. She then pulled up beside the vehicle to get a better look at the The fact situation presented in Dunigan was unusual and is two individuals in the front seat. At the time, Officer Roach distinguishable from that of the present case. In Dunigan the was in plainclothes and was driving an unmarked car. When district court ordered the indigent defendant, whose prior the brothers drove off, Officer Roach followed them. At first, income had been under $2,000 a month, to pay the relatively the brothers drove slowly, making numerous turns onto side enormous sum of $311,605 within the three-year period of his streets. They then picked up speed, while still making many supervised release. See Dunigan, 163 F.3d at 980. On turns. Officer Roach followed throughout. Finally, the appeal, this court found that, “absent a miracle,” such a brothers pulled into the driveway of a house and stopped. 4 United States v. Adams No. 98-6522 No. 98-6522 United States v. Adams 9

Officer Roach parked her car a block away. Chester and three counts of firearms possession because there was no Terry then opened fire on Officer Roach’s car from inside the showing that the guns were stored or acquired separately). Lexus, firing ten to fifteen shots. Officer Roach ducked This will not affect Chester’s overall sentence, however, beneath her dashboard, quickly backed away, and called for because Chester was sentenced to concurrent life terms on assistance. these four counts. Police officers found the Lexus about a half hour later. It C. Sentencing as to count fourteen—enhancement for had been set on fire in an abandoned lot. The officers assaulting a police officer discovered a Ruger 9-millimeter handgun at the right rear tire of the car. Later in the day on September 12, 1996, the Chester received a three-level enhancement on count Adams brothers carjacked a Ford Taurus at a convenience fourteen (one of the firearm possession counts) for assaulting store in midtown Memphis. The next day, they robbed the Officer Roach by firing at her car on the night of September manager of a Fox Photo store as he was entering a midtown 12, 1996. The Sentencing Guidelines provide for an Memphis bank to make a deposit. Then, on September 20, enhancement if the defendant, “knowing or having reasonable they committed two more armed carjackings, stealing a cause to believe that a person was a law enforcement or Honda Civic and a Toyota Camry. corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury.” U.S.S.G. On the following morning, September 21, the brothers § 3A1.2(b). Chester argues on appeal that he did not know or robbed an Ace America Cash Express store. As the store’s have reasonable cause to believe that Officer Roach, who was clerk was unlocking the door, Chester grabbed her and pulled not in uniform and was driving an unmarked car on the night her inside the store. He then forced her, at gunpoint, to open of September 12, was a law enforcement officer. the store’s safe. The district court found that Chester did know or have On the night of September 25, police officers observed the reasonable cause to believe that Officer Roach was a police Adams brothers in midtown Memphis. When approached by officer. This finding was based on a “whole sequence of the officers, the two split up and ran. Chester was caught events,” during which Officer Roach first pulled up alongside shortly thereafter by two of the officers. As he ran, he the Adams brothers’ car and watched them, then pursued discarded a maroon shaving kit bag that was found to contain them along a circuitous route for an extended time, and came the keys to two of the carjacked vehicles and approximately to a stop a block away when the brothers turned into a three thousand dollars in cash wrapped in an Ace America driveway. Finally, the district court noted that the brothers Cash Express wrapper. Officers also found a Jennings Bryco fired ten to fifteen shots at Officer Roach’s car. 9-millimeter handgun and a police scanner in a weeded area that Chester had run through moments before being captured. A district court’s finding at a sentencing proceeding that the The handgun was later determined to be one of the guns taken defendant knew or had cause to believe that he was assaulting in the EZ Pawn Shop robbery. a law enforcement officer will not be disturbed unless it is clearly erroneous. See United States v. Farrow, 198 F.3d 179, Other officers chased after Terry. When Terry turned and 196 (6th Cir. 1999). After observing Officer Roach’s pointed a gun at a pursuing officer, the officer shot and investigative behavior and then opening fire on her vehicle, wounded him. Terry was found to have a 9-millimeter Chester cannot plausibly maintain that he reasonably believed handgun, a police scanner, and the driver’s license of one of Officer Roach to simply be an inquisitive civilian. Because the carjacking victims in his possession. The next day, on the totality of the circumstances supports the district court’s 8 United States v. Adams No. 98-6522 No. 98-6522 United States v. Adams 5

review this omission under the “plain error” standard. See September 26, 1996, police detectives questioned Chester United States v. Christian, 786 F.2d 203, 213 (6th Cir. 1986) after reading him his Miranda rights. Chester admitted that (holding that “[a]ny objection to lack of instruction was he had participated in the carjackings and robberies detailed waived by defendant’s failure to make timely request for a above. He also admitted to shooting at Officer Roach. limiting instruction” and proceeding to review the omission for “plain error affecting substantial rights”). “Plain error Chester and Terry escaped from custody several months requires a finding that, taken as a whole, the jury instructions later. In the early morning hours of September 7, 1997, police were so clearly erroneous as to likely produce a grave officers spotted two men in downtown Memphis driving a miscarriage of justice.” See United States v. Piccolo, 723 GMC pickup truck that had been reported stolen in a F.2d 1234, 1238 (6th Cir. 1983). carjacking a few days earlier. A high speed chase ensued. At one point, the pickup truck slowed down momentarily and In light of the fact that both the indictment and the evidence Chester jumped out from the passenger side of the vehicle. demonstrated incontestably that the firearms charged in The pickup then sped off, eluding the police. The police counts thirteen, fourteen, and twenty-five were possessed in apprehended Chester after a brief chase. When he was separate places and at separate times, we do not believe that caught, Chester was wearing a high quality bullet-proof vest the district court’s failure to instruct as to separate possession and a handgun holster that held a loaded handgun clip constituted a grave miscarriage of justice. See United States containing .380 caliber ammunition. Officers found a .380- v. Bonavia, 927 F.2d 565, 570-71 (11th Cir. 1991) (holding caliber Smith & Wesson handgun on the ground at the spot that a district court’s failure to instruct the jury regarding where Chester had jumped out of the pickup truck. separate possession was not plain error where there was sufficient evidence adduced to find that the defendant B. Procedural background possessed the two weapons on separate occasions). On July 24, 1998, a jury convicted Chester on all twenty-six Chester does raise a valid objection, however, to the counts of the indictment. The district court sentenced him to appropriateness of count twenty-six of the indictment as a a total term of life plus 205 years, to be served consecutively. separate charge. Chester dropped or discarded the Smith & Chester was also ordered to pay restitution of $23,890 to the Wesson .380-caliber handgun—charged in count twenty- various victims of his crimes. five—when he jumped out of the moving pickup truck on September 7, 1997. When the police caught up with him a II. ANALYSIS few minutes later, they discovered a .380-caliber ammunition clip on his person, for which Chester was charged separately A. Conviction as to counts three and four—attempted in count twenty-six. Aside from this brief gap in the time of robbery possession, the government introduced no evidence demonstrating that Chester stored or acquired the ammunition Count three of the indictment charged Chester with clip separately from the gun. attempting to rob the Kroger grocery store on August 26, 1996 in violation of the Hobbs Act, 18 U.S.C. § 1951. Count Because there was no showing that Chester separately four charged Chester with carrying and using a firearm during stored or acquired these items, we reverse Chester’s and in relation to this attempted robbery. Chester claims that conviction on count twenty-six. See Rosenbarger, 536 F.2d there was insufficient proof to support his convictions on at 721 (reversing the defendant’s conviction on two of his these two counts because the evidence, at most, supports a 6 United States v. Adams No. 98-6522 No. 98-6522 United States v. Adams 7

finding that he intended to burglarize the Kroger store, not rob Walgreens drugstore. A reasonable trier of fact could it. conclude from this circumstantial evidence that the Adams brothers intended to rob the Kroger store. A conviction must be sustained if “any rational trier of fact could have found the essential elements of the crime beyond B. Sentencing as to counts thirteen, fourteen, twenty- a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 five, and twenty-six—felony possession of a firearm (1979) (emphasis in original). In reviewing sufficiency of the or ammunition evidence claims, a court must view the evidence in the light most favorable to the prosecution. See United States v. Chester next challenges the district court’s imposition of Talley, 164 F.3d 989, 996 (6th Cir.), cert. denied, 526 U.S. separate sentences for four counts of being a felon in 1137 (1999) . Robbery is defined as “the unlawful taking or possession of a firearm or ammunition. These counts are obtaining of personal property from the person or in the based upon his possession of three handguns and one presence of another, against his will, by means of actual or ammunition clip. The appropriate test when multiple threatened force, or violence, or fear of injury . . . .” 18 weapons are confiscated is set forth in United States v. U.S.C. § 1951(b). Burglary, in contrast, does not require the Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976): “[O]nly one use or threat of force, and consists simply of the unlawful or offense is charged under the terms of § 1202(a)(1) regardless unprivileged entry into a building or structure with the intent of the number of firearms involved, absent a showing that the to commit a crime. See Taylor v. United States, 495 U.S. 575, firearms were stored or acquired at different times or places.” 599 (1990). It is the government’s burden to establish separate offenses under the statute. See id. Conviction for attempting to commit a crime requires “[t]he intent to finish the crime, coupled with affirmative acts The government met its burden in this case as to three of toward that end.” United States v. Calloway, 116 F.3d 1129, the four counts. It is clear from the face of the indictment that 1136 (6th Cir. 1997). Once a defendant takes a “substantial the Bryco 9-millimeter handgun charged in count thirteen, the step” towards the completion of the crime, however, Ruger 9-millimeter handgun charged in count fourteen, and abandonment of the crime is not a defense. United States v. the Smith & Wesson .380-caliber handgun charged in count Shelton, 30 F.3d 702, 705-06 (6th Cir. 1994). twenty-five were each discovered by the police on separate occasions and in different places. Each gun therefore Chester admitted that he and his brother began to drill a properly served as the basis for a separate violation of 18 hole in the Kroger store’s roof with the intent to enter and U.S.C. § 922(g). See United States v. Killebrew, 560 F.2d commit a crime. The relevant question, then, is whether their 729, 734 (6th Cir. 1977) (stating, for the guidance of the intent was to steal from the store and leave before it opened, district court on remand, that a conviction on two separate or to wait inside for an employee to arrive and commit a counts of firearms possession was appropriate where the robbery. evidence indicated that the defendant had acquired the two weapons on separate occasions). When viewed in the light most favorable to the government, the facts support a finding that the Adams Chester nevertheless argues that the district court erred by brothers intended to rob the Kroger store. Both men were failing to explicitly instruct the jury to determine whether carrying guns that morning and, until they were interrupted by these weapons were separately stored or acquired. Because the store’s alarm, they were following the identical plan that Chester failed to contemporaneously object to the court’s they successfully executed three days later in robbing the failure to give an instruction on separate possession, we