United States v. Langston

110 F.4th 408

UNITED STATES of America, Appellee, v. Carl LANGSTON, Defendant, Appellant.

No. 23-1337

United States Court of Appeals, First Circuit

August 2, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

Robert Herrick for appellant.

Benjamin M. Block, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.

Before Montecalvo, Lynch, and Rikelman, Circuit Judges.

RIKELMAN, Circuit Judge.

Carl Langston appeals his conviction for possessing a gun in violation of 18 U.S.C. § 922(g)(1), the felon-in-possession statute. Langston's primary argument is that this statute is unconstitutional under the Second Amendment as applied to him. In particular, he claims that the government cannot, consistent with the Second Amendment, bar him from ever possessing a gun again based on his previous convictions under Maine law for theft and drug trafficking. Because Langston challenges the constitutionality of § 922(g)(1) for the first time on appeal, we must review his claim under the plain-error standard, which requires that any error be "clear" or "obvious." And, because it is not "clear" or "obvious" that § 922(g)(1) is unconstitutional under the Second Amendment as applied to someone with Langston's criminal history, he cannot prevail under this standard. Langston also challenges the district court's denial of his motion to suppress evidence (including the gun) uncovered during a police stop, as well as several of the district court's sentencing decisions. We agree with the district court's ruling that the police stop was based on reasonable suspicion and find no errors in the court's sentencing decisions. Thus, we affirm Langston's conviction and sentence.

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. Colón-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.

Shortly before midnight on February 6, 2021, the Portland Police Department (PPD) received a 911 call about a disturbance at The Bar. An anonymous tipster reported that "a black male wearing a black hat with horns ... [was] yelling and had punched a white male that had a beard." The injured man reportedly had left, while "the black male was still outside yelling."

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.

Shortly after handcuffing Langston, Theriault and Rogers noticed the grip of a pistol in Langston's right pocket. They secured the pistol and, after searching Langston, found a loaded magazine. They then arrested Langston for refusing to submit to arrest or detention in violation of Maine law. Other state charges against Langston were later added, including felony assault on an officer. The state eventually dropped those charges in favor of federal prosecution.

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, 18 U.S.C. § 922(g)(1), based on his prior felony convictions under Maine law for theft and drug trafficking. Although the indictment and Langston's PSR contain limited information about the theft offense, it appears that Langston was convicted of violating title 17-A, section 353 of the Maine Criminal Code, which criminalizes theft by unauthorized taking or transfer. As for the drug offense, Langston was convicted of heroin trafficking in violation of section 1103(1-A)(A) of the Code.

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 leave on his own, Gigliello called the police and asked them to remove Langston from the casino. According to Gigliello's report, Langston "appeared intoxicated" and was "unsteady on his feet."

One of the Seabrook police officers...