## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 14 2001 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL SEAN BROWNING, Defendant - Appellant. No. 00-8055

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 99-CR-140-B)
Michael Reese, Wiederspahn & Reese, P.C., Cheyenne, Wyoming, for DefendantAppellant. Lisa E. Leschuck, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with her on the brief), Cheyenne, Wyoming, for PlaintiffAppellee.

Before BRISCOE , PORFILIO , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

Defendant-appellant Michael Browning entered a cond itional guilty plea to a charge of being a felon in possession of a firearm in violation of 18 U.S.C.-2-

§§ 922(g)(1) and 924(a)(2). On appeal, Browning ch allenges the denial of his two pretrial motions and several aspects of his sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
I On August 9, 1999, a 911 dispatcher in Wyoming rece ived a phone call from a woman claiming to have just been assaulted and to have just exited the vehicle in which the assault took place. The calle r gave her name (Deanna Pine), specified her location (a pay phone at Mule Creek J unction), described the vehicle (a tan Blazer with Arizona license plates), and ide ntified her alleged assailant (Michael Browning). The dispatcher obtained the nu mber of the pay phone and called back two or three times to speak further wit h Pine. From the subsequent calls, the dispatcher learned the caller’s date of birth, details of the alleged assault, and that Browning had driven off with the caller’s property. Based on that information Deputy Darrell Frye was d ispatched to find Browning’s vehicle. Frye located the vehicle and b egan a pursuit with his police lights on. During the pursuit, the officer lost si ght of Browning’s vehicle for a few seconds. Eventually, the officer forced Browni ng to stop. While stopped, Browning confirmed that he had been in an altercation with Pine and that he had some of her “stuff” in his car . (III R. at 25–26.) On his own initiative, Browning unloaded Pine’s belongings, in cluding an open binoculars-3-

case that contained a vial with drug residue. Afte r receiving Browning’s consent to a search of his vehicle, officers discovered a s et of triple-beam scales, which, according to the government, are frequently used to weigh drugs. Browning was then arrested and advised of his Mirandarights. The total time from the initial stop to Browning’s arrest was approximately twenty minutes. Based on statements Browning made the day after his arrest, Wyoming police officers walked along the shoulder of the hi ghway near where Browning was pulled over and found a gun. Browning’s fingerprints were found on the gun. At his request, Browning met with DEA agents on Aug ust 18, 1999. Before the start of the meeting, Browning again was advised of his Miranda rights. The DEA agents clearly stated that they we re promising nothing to Browning. (See, e.g. , I R. Doc. 31 Ex. 1 at 4 (“I’m telling you right n ow there is absolutely no promise from us what so ever [sic] to do anything for you.”).) During the interview, Browning stated that the gun found by police was his and that he had possession of it as a result of an alte rcation in Phoenix. He also indicated that he left Arizona and went to South Da kota with Pine to protect her while she “cooked” methamphetamine. (Id. at 28–29.) Browning pleaded guilty to Wyoming state charges fo r possession of methamphetamine and aiding and abetting an unlawful clandestine laboratory1 Browning’s Wyoming convictions are currently bein g appealed to the

Wyoming Supreme Court. -4- operation. 1 He also was charged in federal court with being afelon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Browning filed two motions to dismiss the federal charges, arguing : (1) that the indictment should be dismissed because the phone call from Pin e did not provide probable cause to stop his car and (2) that use of the state ments he made to the DEA agents violated Fed. R. Crim. P. 11(e)(6), which renders i nadmissible statements made during plea negotiations. The district court denie d both of these motions. Browning then entered into a conditional plea agree ment, preserving the issues raised in his motions for appellate review. At sentencing, the district court determined that B rowning’s base offense level should be twenty because he had a prior contr olled substance conviction.
See U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2 (defining terms) . The district judge increased Browning’s base offense level by two leve ls because the firearm Browning possessed was stolen, see id. § 2K2.1(b)(4), and by four levels because Browning possessed the firearm in connection with another felony offense (i.e., providing protection to Pine while she was manufacturing methamphetamine), see id. § 2K2.1(b)(5).-5- II We review the denial of a motion to dismiss the ind ictment for an abuse of discretion. See United States v. Giles , 213 F.3d 1247, 1248–49 (10th Cir. 2000). In addressing the threshold issue of evidence suppr ession, the trial court’s factual findings are reviewed for clear error, viewing the evidence in the light most favorable to the government. United States v. Long , 176 F.3d 1304, 1307 (10th Cir. 1999). “The credibility of witnesses, the wei ght to be given evidence, and the reasonable inferences drawn from the evidence f all within the province of the district court.” Id. However, the ultimate determination of Fourth Ame ndment reasonableness is reviewed de novo. Id. A. Legality of Browning’s Arrest Relying on Florida v. J. L. , 529 U.S. 266 (2000), Browning argues that the 911 call from Pine did not provide an adequate basi s for stopping him. In J. L. , police received an anonymous call reporting that a young black male standing at a particular bus stop and wearing a plaid shirt was c arrying a gun. Id. at 268. Police went to the bus stop and saw three black mal es, one of whom, the defendant, was wearing a plaid shirt. Id. Apart from the tip, the officers had no reason to suspect J. L. of illegal conduct. The po lice did not see a firearm or observe any unusual movements. Id. One of the officers frisked J. L. and seized a gun from his pocket. Id. The Court held that the defendant’s Fourth-6-

Amendment rights were violated because he was stopp ed based solely on information from “a call made from an unknown locat ion by an unknown caller.” Id. at 270. The anonymous tip leading to the arrest o f J. L. lacked the necessary indicia of reliability. Id. at 274. The circumstances of Browning’s arrest are vastly d ifferent. Pine identified herself by giving her name, birth date, and location; gave a telephone number that allowed the dispatcher to call her back ; indicated that she had been in the car with Browning; and stated that she had beenthe victim of the alleged crimes leading to the stop. In J. L. , “[a]ll the police had to go on . . . was the bare report of an unknown, unaccountable informant who n either explained how he knew about the gun nor supplied any basis for belie ving he had inside information about J. L.” Id. at 271. Here, by contrast, the police had a calle r who explained how she knew about the wrongdoing and provided a ba sis showing she had “inside information.” That information supplied th e police with reasonable suspicion justifying Browning’s initial stop pursuant to Terry v. Ohio , 392 U.S. 1, 30 (1968). Browning also complains about the length of the sto p. However, viewing the facts in the light most favorable to the govern ment, we do not see any excessiveness in the duration of the stop. During the twenty- to thirty-minute stop, Browning moved his car to a safer location, v oluntarily pulled out Pine’s-7-

belongings, consented to a search of his car, and p resumably answered questions throughout. Given that Browning had been accused o f assault and theft, the twenty- to thirty-minute stop, including unpacking and searching a vehicle, was neither unreasonable nor beyond the scope of the st op. Consequently, the district court properly denied Browning’s motion to dismiss the indictment.

B. Admissibility of Browning’s Statements to DEA Agents Browning claims that his statements to DEA agents are inadmissible under Fed. R. Crim. P. 11(e)(6)(D), which prohibits admis sion of “any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty.” We have not previ ously reviewed a similar claim. Other courts of appeal analyze alleged Fed. R. Crim . P. 11(e)(6) violations somewhat inconsistently. Compare United States v. Young , 223 F.3d 905, 908 (8th Cir. 2000), cert. denied , 121 S. Ct. 1133 (2001) (“As a mixed question of l aw and fact, we ordinarily review de novo a district court’s determination that a statement was given in the course of plea negotiati ons.” (emphasis added)), with United States v. Sitton , 968 F.2d 947, 956 (9th Cir. 1992) (“The district court’s determination of whether the parties were engaged i n plea discussions is a factual finding reviewed for clear error .” (emphasis added)). We need not decide the precise standard of review for this claim because B rowning’s argument would fail regardless of the standard employed.-8-

To begin with, Browning does not fall within the pl ain language of the rule because he was not speaking with “an attorney for the government.” Fed. R. Crim. P. 11(e)(6)(D). Seeking to avoid the rule’s plain language, Browning cites a Ninth Circuit case for the proposition that the rule applies where a “‘defendant exhibits a subjective belief that he is negotiating a plea.’” (Appellant’s Br. at 17 (citing Sitton , 968 F.2d at 957).) Browning misreads Sitton , which holds that Rule 11(e)(6) extends “only to discussions with a p rosecutor rather than with law enforcement agents.” Id. Sitton ’s discussion about reasonable subjective belief is an additional requirement for invoking Rule 11(e)(6 ). See id. (“In addition , conversations with government agents do not constitute plea discussions unless the defendant exhibits a subjective belief that he is negotiating a plea, and that belief is reasonable under the circumstances.” (emp hasis added) (citation omitted)). The Eighth Circuit has extended the literal languag e of Rule 11(e)(6) to cover plea discussions with law enforcement officia ls “with express authority from a government attorney” to conduct plea negotiations. United States v.
Lawrence , 952 F.2d 1034, 1037 (8th Cir. 1992). That construction does not help Browning because he points to no evidence that the DEA agents with whom he spoke had express authority to conduct plea negotiations or that they represented they had such authority.-9- III Browning claims the district court made several err ors in sentencing. “We review for clear error the district court’s factual findings regarding sentencing and review de novo its legal interpretation of the Guidelines.” United States v. Maldonado-Acosta , 210 F.3d 1182, 1183 (10th Cir. 2000). A. Prior Felony Conviction U.S.S.G. § 2K2.1(a)(4)(A) provides for a base offen se level of twenty if “the defendant had one prior felony conviction of e ither a crime of violence or a controlled substance offense.” The district court utilized Browning’s Wyoming state conviction for aiding and abetting an unlawfu l clandestine laboratory operation to arrive at this offense level. Brownin g argues that “the state conviction arose out of the same offense/conduct” ( Appellant’s Br. at 21) as his federal charge for felon in possession; thus the st ate charge was not a prior conviction as required by § 2K2.1(a)(4)(A). Browning’s argument has some appeal because the fir earm was found the day after he was arrested on the state charges and was obviously dropped from his car just before he was arrested. It would thus see m that Browning’s possession of the firearm was included in the conduct forming the basis for his state charges. However, Browning’s admissions during his meeting w ith DEA agents undercut his argument. At that meeting, he admitted to gett ing the gun in Arizona before-10-

he entered Wyoming and before he began protecting P ine while she manufactured methamphetamine. These facts are analogous to those in United States v. Banashefski , 928 F.2d 349, 350–52 (10th Cir. 1991). In that case th e defendant was convicted in state court of possession of a stolen vehicle and then charged in federal court as a felon in possession of a firearm. Because there wa s evidence that the defendant possessed the firearm before being seen in possessi on of the stolen car, we held the violation of the federal weapons possession statute “involved separate conduct within the meaning of [U.S.S.G.] § 4A1.2—conduct wh ich was not part of the ‘instant offense.’” Id. at 352. Browning’s admission that he possessed a firearm prior to entering Wyoming demonstrates this was a “ separable instance of conduct” from the criminal acts leading to his Wyom ing charges. Id. at 349; cf. United States v. Butler , 966 F.2d 559, 564 (10th Cir. 1992) (“Neither offe nse is dependent upon conduct associated with the other an d neither shares a common element of proof, thus the relevant conduct underly ing those convictions is severable . . . .”).

B. Enhancement for Controlled Substance Violation The district court determined that Browning’s Wyomi ng conviction constituted a “controlled substance offense” pursuant to U.S.S.G. § 2K2.1(a)(4)(A). “Controlled substance offense” i s defined as “an offense under-11-

federal or state law . . . that prohibits the manuf acture, import, export, distribution, or dispensing of a controlled substan ce . . . or the possession of a controlled substance . . . with intent to manufactu re, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). The application n otes to § 4B1.2(b) further clarify that “controlled substance offense” include s “[u]nlawfully possessing a listed chemical with intent to manufacture a contro lled substance,” “[u]nlawfully possessing a prohibited flask or equipment with int ent to manufacture a controlled substance,” and “[m]aintaining any place for the pu rpose of facilitating a drug offense.” U.S.S.G. § 4B1.2(b), cmt. n.1. With thi s guidance, we have no doubt that Browning’s Wyoming conviction for aiding and abetting a lab manufacturing methamphetamine constitutes a “controlled substance offense.”

C. Use of a Firearm in Connection with Another Offense U.S.S.G. § 2K2.1(b)(5) provides for a four-level in crease in offense level if “the defendant used or possessed any firearm . . . in connection with another felony offense.” Browning challenges the applicati on of U.S.S.G. § 2K2.1(b)(5) on two bases: (1) he did not possess the firearm “ in connection with” another felony offense and (2) application of that section constitutes double counting of the Wyoming state conviction because it was used to enhance his sentence under both U.S.S.G. § 2K2.1(a)(4)(A), as discussed above, and under U.S.S.G. § 2K2.1(b)(5).-12-

As to Browning’s first point, “we have generally he ld that if the weapon facilitated or had the potential to facilitate the underlying felony, then enhancement under § 2K2.1(b)(5) is appropriate.” U nited States v. Bunner , 134 F.3d 1000, 1006 (10th Cir. 1998). Further “[a] weapon’s proximity to narcotics may be sufficient to provide the nexus necessary to enhance a defendant’s sentence under § 2K2.1(b)(5).” Id. The evidence cited by the government indicates that the firearm was used in connection w ith another felony offense: Browning admitted that he provided security for Pin e while she manufactured methamphetamine. This admission is sufficient to s upport an enhancement under § 2K2.1(b)(5). This Circuit has not considered whether using the s ame felony under both U.S.S.G. §§ 2K2.1(a)(4)(A) and 2K2.1(b)(5) to enhan ce a sentence constitutes double counting. However, under our established ju risprudence for evaluating double counting claims under the Sentencing Guideli nes, Browning’s claim must fail. We summarized the general standard governing an all egation of double counting in United States v. Rucker , 178 F.3d 1369, 1371 (10th Cir. 1999): This court has held that “[i]mpermissible double co unting or impermissible cumulative sentencing [under the Guid elines] occurs when the same conduct on the part of the defendant is used to support separate increases under separate enhanceme nt provisions which necessarily overlap, are indistinct, and serv e identical purposes.” United States v. Flinn , 18 F.3d 826, 829 (10th Cir. 1994).-13-

Importantly, the last three conditions are stated a s a conjunctive requirement; that is, all three must be met for the use of separate enhancements to constitute impermissible double cou nting. A successful double counting claim must demonstrate that the two enhancements necessarilyoverlap in every conceivable instance, not just th at they overlap often.
See id. at 1373 (rejecting a double counting claim where t he challenged enhancements overlap “nearly every time,” but where such overlap was “not always the case”). Looking at the enhancements at issue, the § 2K2.1(b)(5) enhancement for use of a weapon in connection with another felony offense does not necessarily overlap with the § 2K2.1(a)(4) enhancement for a prior conviction of a controlled substance offense: the § 2K2.1(b)( 5) felony need not be a prior “controlled substance offense” as is required under§ 2K2.1(a)(4). D. Downward Departure The district court denied Browning’s request for a downward departure based on Browning’s difficult childhood. As a gene ral matter, U.S.S.G. § 5H1.12 prohibits downward departures for “[l]ack of guidan ce as a youth and similar circumstances indicating a disadvantaged upbringing .” Browning seeks to avoid application of § 5H1.12 by citing a case granting adownward departure to a defendant who had suffered extreme psychological an d physical abuse as a child.
See United States v. Ayers , 971 F. Supp. 1197 (N.D. Ill. 1997). Ayers persuasively distinguishes “exceptionally cruel . . . psychological and emotional-14-

abuse” constituting “a form of sadistic torture” fr om the generalized lack of guidance or neglect that § 5H1.12 prohibits as a ba sis for departure. Id. at 1200–01; see also United States v. Rivera , 192 F.3d 81, 84–85 (2d Cir. 1999) (noting that several circuits have “held that a dow nward departure may be appropriate in cases of extreme childhood abuse” an d citing cases). Despite the analytical soundness of Ayers , Rivera , and other similar cases, we do not have jurisdiction to apply them to Browni ng’s claim. Our review of a sentencing court’s refusal to grant a downward departure is narrow. [C]ourts of appeals cannot exercise jurisdiction to review a sentencing court’s refusal to depart from the sente ncing guidelines except in the very rare circumstance that the distr ict court states that it does not have any authority to depart from the s entencing guideline range for the entire class of circumstances proffer ed by the defendant. . . . This exception does not apply when a sentencing court concludes under the defendant’s particular ci rcumstances that it does not have the authority to depart. United States v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998) (citations omi tted). The district court’s statement that it lacks author ity to grant the requested downward departure must be unambiguous. See United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999). When review is p roper, we examine the sentencing decision de novo. See Castillo , 140 F.3d at 887. Browning’s counsel failed to address the threshold question of whether this Court has jurisdiction to review the refusal to dep art. The government points to the crucial portion of the district judge’s comment s during Browning’s-15-

sentencing: “It’s really a long record and pretty serious. On that account, there’s no way I could lawfully depart downward in this cas e. The Tenth Circuit opinions plain just don’t permit it, and I don’t th ink there’s any—any way that would hold up by which I could . . . .” (V R. at 5 2.) The district judge’s use of the word “lawfully” and his reference to “Tenth Cir cuit opinions” seem to indicate that he made “a legal decision that [he] h ad no authority to depart,” which is the type of decision over which we have ju risdiction. Fortier , 180 F.3d at 1231. Nevertheless, our prior precedent foreclo ses review. In Castillo , we held the following statement unreviewable: “If the re’s any way that the folks up above can say I can depart, I will depart, but I do n’t see how I can do it.” 140 F.3d at 888. We see no principled way to distingui sh the statement in Castillo from the one at issue here. Additionally, the dist rict judge’s reference to Browning’s “long record” implies that the refusal t o depart was based on “the defendant’s particular circumstances.” Id. at 887. At the very least, the statement is ambiguous, which leaves us without jurisdiction to review it.
IV The judgment of the district court is AFFIRMED

.