UNITED STATES OF AMERICA, Appellee, v. CARL LANGSTON, Defendant, Appellant.
No. 23-1337
United States Court of Appeals For the First Circuit
August 2, 2024
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.
RIKELMAN, Circuit Judge. Carl Langston appeals his conviction for possessing a gun in violation of
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. Colon-Cordero, 91 F.4th 41, 45 (1st Cir. 2024); see also United States v. Ruperto-Rivera, 16 F.4th 1, 3 (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, 638 F.3d 326, 328 (1st Cir. 2011), and view them “in the light most favorable to the district court‘s ruling,” United States v. Soares, 521 F.3d 117, 118 (1st Cir. 2008) (quoting United States v. Kimball, 25 F.3d 1, 3 (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.
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.
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,
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
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 18 U.S.C. § 922(g)(1)
Langston‘s primary argument on appeal is that the felon-in-possession statute,
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.”
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, 568 U.S. 266, 268-69 (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
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.” Rahimi, 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, 597 U.S. at 30). 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.” Id. at 1898 (quoting Bruen, 597 U.S. at 29). “Why and how the regulation burdens the [Second Amendment] right are central to this inquiry.” Id.
Applying this framework, the Supreme Court rejected Rahimi‘s facial constitutional challenge to
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
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. Ortiz-Mercado, 919 F.3d 686, 689 (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., 893 F.3d 1, 10, 12 (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, 784 F.3d 11, 22 (1st Cir. 2015) (quoting United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014)). Thus, “[t]o obtain relief from his conviction, . . . [Langston] must show not only that [
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
Second, the legal test from Rahimi does not “compel” the conclusion that
Rather than compelling the conclusion that
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, 554 U.S. at 627 n.26). Thus, Langston‘s argument that the legal test laid out in Rahimi compels the conclusion that certain applications of
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
At times, Langston has framed his Second Amendment claim as a challenge to
In sum, Langston fails to show that
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
The district court‘s reasonable suspicion determination is a legal conclusion that we review de novo. Id. 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.” Id.
After holding an evidentiary hearing, the district court rejected Langston‘s
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
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., 529 U.S. 266, 270 (2000) (quoting Alabama v. White, 496 U.S. 325, 327 (1990)); see United States v. Monteiro, 447 F.3d 39, 44-45 (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.
We begin with Langston‘s challenge to the district court‘s four-level sentencing enhancement under
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, 589 F.3d 514, 517 (1st Cir. 2009) (quoting United States v. Luciano, 414 F.3d 174, 180 (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, 826 F.3d 21, 24 (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 Ortiz-Mercado, 919 F.3d at 689. 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
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
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.”
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, 426 F.3d 64, 67 (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.
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.
Whether a defendant has accepted responsibility for their offense is a “factbound determination” that we review for clear error. United States v. McCarthy, 32 F.4th 59, 62-63 (1st Cir. 2022) (quoting United States v. Jordan, 549 F.3d 57, 60 (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.” Id. at 63. 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.‘” Id. (quoting Brown v. Plata, 563 U.S. 493, 513 (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, 378 F.3d 35, 40 (1st Cir. 2004) (alteration in original) (quoting United States v. Hooten, 942 F.2d 878, 883 (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, 549 F.3d at 61.
We also reject Langston‘s argument that the district court “struck the wrong balance,” id. at 62, by finding that the casino incident outweighed Langston‘s evidence of acceptance of responsibility, i.e., his guilty plea, see McLaughlin, 378 F.3d at 40. Whether a “single adverse incident” outweighs a defendant‘s “rehabilitative efforts” is a “quintessential judgment
III. CONCLUSION
For all these reasons, we affirm Langston‘s conviction and sentence.