FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
Hayne Barnwell for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on
brief, for appellee.
Torruella, Lynch, and Barron, Circuit Judges.
BARRON, Circuit Judge.
Mercer challenges his conviction and sentence for possession
of cocaine with intent to distribute. Mercer raises a number
of issues on appeal. They relate to the District Court's
denial of a pre-trial motion to suppress, the conduct of the
trial proceedings, and the District Court's sentencing
determinations. Finding no errors, we affirm.
September 20, 2013, police pulled over the gold Saturn that
Mercer was driving, arrested Mercer on the basis of
outstanding warrants, and recovered, among other things, two
ounces of cocaine from a search of the car. Authorities then
charged Mercer with one count of possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§
to trial, Mercer filed a motion to suppress the cocaine
evidence on the ground that it was the fruit of an
unconstitutional seizure of the Saturn. The District Court
denied the motion to suppress on May 29, 2014. A jury trial
was then held, resulting in Mercer's conviction.
District Court sentenced Mercer to a term of imprisonment of
41 months. The District Court's sentence was at the top
end of the range that the pre-sentence report
("PSR") calculated under the United States
Sentencing Guidelines (the "Guidelines" or
"U.S.S.G"). The PSR based that range on a total
offense level of 18, which included enhancements for
obstruction of justice, U.S.S.G. §3C1.1, and possession
of a dangerous weapon during the offense, U.S.S.G.
§2B1.1(b)(1). The District Court also sentenced Mercer
to a term of supervised release of five years and assessed
monetary penalties. This appeal followed.
start with Mercer's challenge to the District Court's
denial of his motion to suppress. Mercer contends that the
District Court erred in ruling that the stop of the Saturn
was lawful. On a suppression motion, we review findings of
fact for clear error and legal conclusions, including the
ultimate reasonable suspicion determination, de novo. See
United States v. Chhien, 266 F.3d 1, 5
(1st Cir. 2001). We conclude that the District Court did not
concedes, as he must, that the stop was lawful if law
enforcement had reasonable grounds to suspect that Mercer was
in possession of drugs at the time that police made the stop.
See United States v. Arvizu, 534
U.S. 266, 273 (2002) ("[I]n brief investigatory stops of
persons or vehicles, the Fourth Amendment is satisfied if the
officer's action is supported by reasonable suspicion to
believe that criminal activity 'may be afoot.'"
(quoting United States v. Sokolow,
490 U.S. 1, 7 (1989))). But Mercer contends that the only
basis law enforcement had for suspecting that Mercer would be
in possession of such contraband was his association with one
man -- Richard Magee -- who law enforcement had reason to
suspect was engaged in drug trafficking. And Mercer further
contends that his mere association with Magee was not enough
to justify the stop of the Saturn. See Ybarra
v. Illinois, 444 U.S. 85, 90-91 (1979)
(holding that officers "had no reason to believe"
that patron of tavern "had committed, was committing, or
was about to commit" any crime, where officers
"knew nothing in particular about [patron], except that
he was present, along with several other customers, in a
public tavern at a time when the police had reason to believe
that the bartender would have heroin for sale"); cf.
Sibron v. New York, 392 U.S. 40, 62
(1968) ("The inference that persons who talk to
narcotics addicts are engaged in the criminal traffic in
narcotics is simply not the sort of reasonable inference
required to support an intrusion by the police upon an
individual's personal security.").
record shows, however, that the officers knew, at the time of
the stop, that:
• Magee supplied cocaine to a person by the name of
• Magee and Jones would sometimes consummate drug deals
at Ruski's, a restaurant in Portland, Maine;
• Magee planned to supply cocaine to Jones at
Ruski's on September 20, 2013;
• Magee told Jones, in the course of an intercepted
phone conversation that occurred on September 20, that he was
running late to Ruski's, that Jones might want to come to
Magee's house to consummate the drug deal, and that Jones
should tell "Craig" to wait at Ruski's because
he was still planning to go there;
• Magee at some point left his house and went to
Ruski's, where agents observed a man -- whom we now know
to be Mercer -- who "appeared to be waiting for
someone" and who was "kind of pacing up and down
• Magee, upon arriving at Ruski's, approached
Mercer's Saturn, conversed with Mercer, and at one point
"leaned inside the driver's window [of the Saturn],
which was down, just for a moment";
• Magee then went inside Ruski's, gave a package to
a female bartender, exited Ruski's, and conversed with
Mercer yet again, at one point "leaning on the passenger
door window" of the Saturn;
• Mercer shortly thereafter departed in his Saturn,
without ever having entered Ruski's or interacted with