*

The Honorable Kathleen M. O’Mall

for the Northern District of Ohio, sitting 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHESTER L. ADAMS,

Defendant-Appellant.

Appeal from the United St

for the Western District of Te

No. 97-20267—Julia S. Gibbon

Argued: March 

Decided and Filed: 

Before: SILER and GILMA

O’MALLEY, Distr

____________

COUNSE

ARGUED: Stephen B. ShankFEDERAL PUBLIC DEFENDER DISTRICT OF TENNESSEE, M
2 United States v. Adams No. 98-6522

Appellant. Tony R. Arvin, ASSISTANT UNITED STATESATTORNEY, Memphis, Tennessee, for Appellee.ON BRIEF: Stephen B. Shankman, OFFICE OF THEFEDERAL PUBLIC DEFENDER FOR THE WESTERNDISTRICT OF TENNESSEE, Memphis, Tennessee, forAppellant. Tony R. Arvin, ASSISTANT UNITED STATESATTORNEY, Memphis, Tennessee, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Chester Adams

and his brother, Terry Adams, committed a series ofcarjackings and armed robberies in Memphis, Tennesseeduring August and September of 1996. (For the sake ofsimplicity, this opinion will refer to the two brothers by theirfirst names.) On June 25, 1998, a federal grand jury in theWestern District of Tennessee returned a twenty-six countindictment against Chester, charging him with carjacking,robbery, attempted robbery, and possessing firearms andammunition as a convicted felon. Chester was tried andconvicted on all counts. The district court sentenced him toa term of life plus 205 years, and he was ordered to pay$23,890 in restitution. In this appeal, Chester raises fourchallenges to his conviction, sentence, and restitution order.For the reasons set forth below, we REVERSE the districtcourt’s sentencing on one of the four counts of firearmspossession 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 heldup the driver of a black 1996 Lexus at a self-serve carwash inmidtown Memphis. The brothers next attempted to rob aKroger grocery store. Early in the morning of August 26,

No. 98-6522 Unpayment would be impossible. Idother hand, was only twenty-nine ysentencing and has a life sentence d$23,890 restitution obligation throPrisons’ Inmate Financial Responthese circumstances, the amount onot constitute an abuse of the distr

III. CONCLU

For all of the reasons set forth a

district court’s sentencing as tAFFIRM as to the remainder of threstitution order. 
10 United States v. Adams No. 98-6522

finding, we affirm Chester’s three-level sentencingenhancement.D. Restitution order

Chester finally argues that, pursuant to the recent case of

United States v. Dunigan, 163 F.3d 979 (6th Cir. 1999), thedistrict court erred in ordering him to pay $23,890 inrestitution. This court in Dunigan held that a district courtmust consider “the amount of the loss sustained by any victimas a result of the offense, the financial resources of thedefendant, the financial needs and earning ability of thedefendant and the defendant’s dependents, and such otherfactors as the court deems appropriate” when orderingrestitution. Id. at 981. Chester contends that “[t]he district

court made no finding that the defendant had even a minimalchance to pay almost $24,000 in restitution.” 

We review de novo whether a restitution order is legally

permissible. See Dunigan, 163 F.3d at 981. If a restitution

order is appropriate, the amount of restitution will not bedisturbed unless the district court abuses its discretion. Seeid. We conclude that the district court in the present case didnot abuse its discretion in fixing the amount of restitution.First, the burden is on the defendant to demonstrate that arestitution order far exceeds his resources and earningpotential. See id. at 982; see also United States v. Frost, 914F.2d 756, 774 (6th Cir. 1994) (holding that a district courtneed not make specific findings concerning a defendant’sfinancial condition). Chester has not made such a showing inthis case. Second, a restitution order is permissible even ifthe defendant lacks the present ability to pay. See UnitedStates v. Blanchard, 9 F.3d 322 (6th Cir. 1993).

The fact situation presented in Dunigan was unusual and is

distinguishable from that of the present case. In Dunigan thedistrict court ordered the indigent defendant, whose priorincome had been under $2,000 a month, to pay the relativelyenormous sum of $311,605 within the three-year period of hissupervised release. See Dunigan, 163 F.3d at 980. Onappeal, this court found that, “absent a miracle,” such a

No. 98-6522 Un1996, with the store still closedbuilding and began cutting a hole were armed with 9-millimeter hanpolice radio scanners. As they however, it began to rain, and the hole set off the store’s alarm. Abrothers abandoned their plan. 

On August 29, 1996, the brothe

a similar plan at the nearby Walgrehole in the store’s roof before thdescended into the store. Chester wserved as a look-out. When the arrived, Terry forced them to gunpoint. He then tied up the emmoney. 

The Adams brothers’ next crime 

the night of August 31, 1996, durwoman and stole her Nissan September 3, 1996, the brothers Simply Six Fashions as she was store’s receipts at a bank in midto

Two days later, the brothers ent

Memphis wearing masks and csprayed the shop’s employees anspray and stole twelve handguns f

At approximately 2 a.m. on the 

1996, Memphis Police Officer Dstolen black Lexus in the parking lOfficer Roach saw Terry get into ththen pulled up beside the vehicle two individuals in the front seat. Awas in plainclothes and was drivinthe brothers drove off, Officer Roathe brothers drove slowly, making streets. They then picked up speedturns. Officer Roach followed brothers pulled into the driveway 
4 United States v. Adams No. 98-6522

Officer Roach parked her car a block away. Chester andTerry then opened fire on Officer Roach’s car from inside theLexus, firing ten to fifteen shots. Officer Roach duckedbeneath her dashboard, quickly backed away, and called forassistance. 

Police officers found the Lexus about a half hour later. It

had been set on fire in an abandoned lot. The officersdiscovered a Ruger 9-millimeter handgun at the right rear tireof the car. Later in the day on September 12, 1996, theAdams brothers carjacked a Ford Taurus at a conveniencestore in midtown Memphis. The next day, they robbed themanager of a Fox Photo store as he was entering a midtownMemphis bank to make a deposit. Then, on September 20,they committed two more armed carjackings, stealing aHonda Civic and a Toyota Camry. 

On the following morning, September 21, the brothers

robbed an Ace America Cash Express store. As the store’sclerk was unlocking the door, Chester grabbed her and pulledher inside the store. He then forced her, at gunpoint, to openthe store’s safe. 

On the night of September 25, police officers observed the

Adams brothers in midtown Memphis. When approached bythe officers, the two split up and ran. Chester was caughtshortly thereafter by two of the officers. As he ran, hediscarded a maroon shaving kit bag that was found to containthe keys to two of the carjacked vehicles and approximatelythree thousand dollars in cash wrapped in an Ace AmericaCash Express wrapper. Officers also found a Jennings Bryco9-millimeter handgun and a police scanner in a weeded areathat Chester had run through moments before being captured.The handgun was later determined to be one of the guns takenin the EZ Pawn Shop robbery. 

Other officers chased after Terry. When Terry turned and

pointed a gun at a pursuing officer, the officer shot andwounded him. Terry was found to have a 9-millimeterhandgun, a police scanner, and the driver’s license of one ofthe carjacking victims in his possession. The next day, on

No. 98-6522 Unthree counts of firearms possessishowing that the guns were storeThis will not affect Chester’s ovbecause Chester was sentenced to these four counts. C. Sentencing as to count fou

assaulting a police officer

Chester received a three-leve

fourteen (one of the firearm possesOfficer Roach by firing at her car 12, 1996. The Sentencing Guenhancement if the defendant, “knocause to believe that a person wcorrections officer, assaulted such oa substantial risk of serious b§ 3A1.2(b). Chester argues on apphave reasonable cause to believe thnot in uniform and was driving an of September 12, was a law enforc

The district court found that C

reasonable cause to believe that Oofficer. This finding was based events,” during which Officer Roacthe Adams brothers’ car and watthem along a circuitous route for ato a stop a block away when thdriveway. Finally, the district coufired ten to fifteen shots at Officer 

A district court’s finding at a sent

defendant knew or had cause to bela law enforcement officer will noclearly erroneous. See United State196 (6th Cir. 1999). After obinvestigative behavior and then opChester cannot plausibly maintain tOfficer Roach to simply be an inqthe totality of the circumstances su
8 United States v. Adams No. 98-6522

review this omission under the “plain error” standard. SeeUnited States v. Christian, 786 F.2d 203, 213 (6th Cir. 1986)(holding that “[a]ny objection to lack of instruction waswaived by defendant’s failure to make timely request for alimiting instruction” and proceeding to review the omissionfor “plain error affecting substantial rights”). “Plain errorrequires a finding that, taken as a whole, the jury instructionswere so clearly erroneous as to likely produce a gravemiscarriage of justice.” See United States v. Piccolo, 723

F.2d 1234, 1238 (6th Cir.1983). 

In light of the fact that both the indictment and the evidence

demonstrated incontestably that the firearms charged incounts thirteen, fourteen, and twenty-five were possessed inseparate places and at separate times, we do not believe thatthe district court’s failure to instruct as to separate possessionconstituted a grave miscarriage of justice. See United Statesv. Bonavia, 927 F.2d 565, 570-71 (11th Cir. 1991) (holdingthat a district court’s failure to instruct the jury regardingseparate possession was not plain error where there wassufficient evidence adduced to find that the defendantpossessed the two weapons on separate occasions). 

Chester does raise a valid objection, however, to the

appropriateness of count twenty-six of the indictment as aseparate charge. Chester dropped or discarded the Smith &Wesson .380-caliber handgun—charged in count twentyfive—when he jumped out of the moving pickup truck onSeptember 7, 1997. When the police caught up with him afew minutes later, they discovered a .380-caliber ammunitionclip on his person, for which Chester was charged separatelyin count twenty-six. Aside from this brief gap in the time ofpossession, the government introduced no evidencedemonstrating that Chester stored or acquired the ammunitionclip separately from the gun.

Because there was no showing that Chester separately

stored or acquired these items, we reverse Chester’sconviction on count twenty-six. See Rosenbarger, 536 F.2dat 721 (reversing the defendant’s conviction on two of his

No. 98-6522 UnSeptember 26, 1996, police deteafter reading him his Miranda righ

he had participated in the carjackiabove. He also admitted to shooti

Chester and Terry escaped from 

later. In the early morning hours of officers spotted two men in downGMC pickup truck that had becarjacking a few days earlier. A hione point, the pickup truck sloweChester jumped out from the passThe pickup then sped off, eludinapprehended Chester after a briecaught, Chester was wearing a higand a handgun holster that held containing .380 caliber ammunitiocaliber Smith & Wesson handgun where Chester had jumped out of B. Procedural background

On July 24, 1998, a jury convicte

counts of the indictment. The distra total term of life plus 205 years, tChester was also ordered to pay revarious victims of his crimes. 

II. ANALY

A. Conviction as to counts thr

robbery

Count three of the indictmen

attempting to rob the Kroger gro1996 in violation of the Hobbs Actfour charged Chester with carrying and in relation to this attempted rothere was insufficient proof to suthese two counts because the evid
6 United States v. Adams No. 98-6522

finding that he intended to burglarize the Kroger store, not robit. 

A conviction must be sustained if “any rational trier of fact

could have found the essential elements of the crime beyonda reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319(1979) (emphasis in original). In reviewing sufficiency of theevidence claims, a court must view the evidence in the lightmost favorable to the prosecution. See United States v.Talley, 164 F.3d 989, 996 (6th Cir.), cert. denied, 526 U.S.

1137 (1999) . Robbery is defined as “the unlawful taking orobtaining of personal property from the person or in thepresence of another, against his will, by means of actual orthreatened force, or violence, or fear of injury . . . .” 18U.S.C. § 1951(b). Burglary, in contrast, does not require theuse or threat of force, and consists simply of the unlawful orunprivileged entry into a building or structure with the intentto commit a crime. See Taylor v. United States, 495 U.S. 575,599 (1990). 

Conviction for attempting to commit a crime requires “[t]he

intent to finish the crime, coupled with affirmative actstoward that end.” United States v. Calloway, 116 F.3d 1129,1136 (6th Cir. 1997). Once a defendant takes a “substantialstep” towards the completion of the crime, however,abandonment of the crime is not a defense. United States v.Shelton, 30 F.3d 702, 705-06 (6th Cir. 1994). 

Chester admitted that he and his brother began to drill a

hole in the Kroger store’s roof with the intent to enter andcommit a crime. The relevant question, then, is whether theirintent was to steal from the store and leave before it opened,or to wait inside for an employee to arrive and commit arobbery. 

When viewed in the light most favorable to the

government, the facts support a finding that the Adamsbrothers intended to rob the Kroger store. Both men werecarrying guns that morning and, until they were interrupted bythe store’s alarm, they were following the identical plan thatthey successfully executed three days later in robbing the

No. 98-6522 UnWalgreens drugstore. A reasonconclude from this circumstantial brothers intended to rob the KrogeB. Sentencing as to counts thi

five, and twenty-six—felony or ammunition

Chester next challenges the dis

separate sentences for four coupossession of a firearm or ammubased upon his possession of ammunition clip. The approprweapons are confiscated is set f

Rosenbarger, 536 F.2d 715, 721 (6offense is charged under the terms of the number of firearms involvedfirearms were stored or acquired at It is the government’s burden to eunder the statute. See id. 

The government met its burden 

the four counts. It is clear from the the Bryco 9-millimeter handgun chRuger 9-millimeter handgun chargthe Smith & Wesson .380-caliber twenty-five were each discovered occasions and in different placproperly served as the basis for a U.S.C. § 922(g). See United Stat729, 734 (6th Cir. 1977) (statingdistrict court on remand, that a ccounts of firearms possession wevidence indicated that the defendweapons on separate occasions). 

Chester nevertheless argues that 

failing to explicitly instruct the jthese weapons were separately stoChester failed to contemporaneofailure to give an instruction on