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Date: 02-22-2018

Case Style:

United States of America v. DAniel Colby, Jr.

Case Number: 17-1031

Judge: Stahl

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Benjamin N. Block, Halsey B. Frank Julia M. Lipez

Defendant's Attorney: John L. Calcgni, III

Description: Following a two-day jury trial,
Defendant Daniel Colby, Jr. was convicted of a single count of
possession of a firearm by a prohibited person in violation of 18
U.S.C. § 922(g)(1). In calculating Colby's sentence, the district
court applied a two-level enhancement for possession of a stolen
gun, a four-level enhancement for using a gun in connection with
another felony, and a two-level enhancement for obstructing
justice by committing perjury at trial, which resulted in a
guideline range of 84 to 105 months. The district court sentenced
Colby to 95 months in prison. On appeal, Colby challenges the
district court's application of these three enhancements. After
careful consideration, we affirm.
In March 2015, Colby was living in a camper in Wiscasset,
Maine on property owned by his father. Forrest J. Smith was a
friend of Colby's father who lived nearby on Mountain Road in
Woolwich, Maine. Smith had occasionally worked for Colby's father
prior to Colby taking up residence on his father's land. A few
days before March 17, 2015, Smith was walking home from Colby's
father's house when he encountered Colby on the road. Colby threw
an M-80 firecracker at Smith and said "if you turn around right
now I'll shoot ya." Smith continued walking back to his trailer.
On March 17, 2015, at approximately 3:00 PM, Smith heard
someone knocking on the door to his trailer claiming to be from
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the power company. According to Smith's later testimony, Colby
burst into the trailer, breaking the lock on the door. In
response, Smith told Colby that he had called the cops about the
firecracker incident. Colby stuck a gun in Smith's face and said
"I ought to shoot you right now for calling the f-ing cops on me."
Smith told Colby that he should leave, and Colby left the trailer
still carrying the gun. Shortly thereafter, Smith called the
police and reported that Colby had threatened him with a gun.
Smith later described the gun as having "a short barrel" with "a
brown, wooden handle."
Joey Rogers, who also lived on Mountain Road, testified
at trial to the following. On March 17, 2015, he saw Colby walking
up the road towards Smith's trailer at around 3:00 PM and, thirty
to forty minutes later, he heard someone in his driveway trying to
open the door to his truck. Looking over, Rogers saw Colby
standing by his truck. According to Rogers, when he asked Colby
what he was doing, Colby mumbled and started "pulling something
from his sweatshirt pocket." Rogers could not see exactly what
the object in Colby's pocket was, but he did see that it had a
handle. As Colby walked towards Rogers, Rogers' dog ran at Colby.
Colby took off running across the road, through a ditch, and into
the woods.
Three days earlier, on March 14, 2015, Colby had
visited Gregory Doray at his mother Stacey Doray's house. Jyllian
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York, Gregory's sister who was nine months pregnant and on bedrest
at the time, also lived with Stacey. At some point that day,
Jyllian took Stacey's gun from Stacey's bedroom closet and hid it
in her own bedroom closet. According to Jyllian's later testimony,
she took the gun to give it to Gregory because she thought Gregory
was in trouble with "bad people" and might need it. Colby,
Gregory, and Gregory's girlfriend all ended up sleeping in the
living room at Stacey's house that night.
The next morning, on March 15, 2015, Jyllian's boyfriend
Cody Wyman discovered that the gun was missing from Jyllian's
closet. Jyllian was scared that her mother would find out that
she had taken the gun and did not, at that point, tell her mother
that the gun was missing. After searching her room for about two
hours, Jyllian asked everyone who had spent the night, including
Colby, if they had the gun or knew where it was. No one would
admit they had it.
On the evening of March 17, 2015, Jyllian texted and
called Colby to ask him again if he had the gun or knew where it
was. According to Jyllian, Colby told her that he had taken the
gun and left it in a snowbank in the woods near Mountain Road.
Jyllian and Wyman went out that night to look for the gun in the
woods. In a series of text messages and phone calls, Colby tried
to explain where he had put the gun, telling them that it was
"stashed in snow . . . [a]t the end of the tracks." When Jyllian
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and Wyman still could not find the gun, Colby texted that he would
"run in the woods with Cody and get it" in the morning.
The next day, Jyllian and her younger sister returned to
the woods to look for the gun. While they were searching, Officer
James Read of the Wiscasset Police Department, who was out on
patrol, saw their car parked on the side of the road and stopped.
When Officer Read asked them what they were doing, Jyllian told
him they were looking for a gun. At that point, the police took
over the search for the gun. Some time later, after the snow had
melted, the police recovered the gun at that location in the woods.
At trial, Colby testified in his own defense. He
admitted that he had thrown the firecracker at Smith, but that he
"thought it was kind of a joke" and he "wasn't intending to hurt
him or nothing." He denied being at Smith's trailer on March 17,
2015, and claimed that he did not recall encountering Rogers that
Colby also denied ever touching Stacey's gun. Colby
claimed that Gregory had taken the gun and brought it to his
girlfriend's home in Gardiner. According to Colby, he and Gregory
then arranged to have a mutual friend place the gun in the woods
so that they could return it to Stacey. Colby explained that he
1 Colby admitted that he might have been walking back and forth
near Rogers' house to get cell phone reception.
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texted Jyllian directions to where he thought the mutual friend
had left the gun.
On June 2, 2016, the jury found Colby guilty. On
December 27, 2016, the district court sentenced him to 95 months
in prison. The court imposed a two-level enhancement pursuant to
U.S.S.G. § 2K2.1(b)(4)(A) for possessing a stolen firearm, a fourlevel
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for
possessing a firearm in connection with another felony offense,
and a two-level enhancement pursuant to U.S.S.G. § 3C1.1 for
willfully obstructing, impeding, or attempting to impede the
administration of justice. In applying the final enhancement, the
court found that Colby "perjured himself during trial by denying
possession of the gun and denying his activities vis-a-vis Forrest
Smith." The court found "all of those lies to be material" and
found "that those lies, perjury, constitute obstruction."
We review the district court's legal interpretations of
the sentencing guidelines de novo, and review its subsidiary
factual findings for clear error. United States v. Corbett, 870
F.3d 21, 31 (1st Cir. 2017). 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
- 7 -
F.3d 514, 517 (1st Cir. 2009) (quoting United States v. Luciano,
414 F.3d 174, 180 (1st Cir. 2005)). We address each of Colby's
challenges to the sentencing enhancements in turn.
A. Possession of a Stolen Firearm
Colby claims the district court's finding that Stacey's
gun was stolen was clearly erroneous. Before we can evaluate the
district court's factual findings, we must determine the meaning
of "stolen" as used in this provision of the guidelines. U.S.S.G.
§ 2K2.1(b)(4)(A) calls for a two-level enhancement "[i]f any
firearm . . . was stolen." The comment to this provision states
that "[s]ubsection (b)(4) applies regardless of whether the
defendant knew or had reason to believe that the firearm was
Because the events of this case occurred in Maine, Colby
argues that we should define "stolen" in accordance with Maine's
theft statute. See Me. Rev. Stat. Ann. tit. 17-A § 353(1)(A).
This we will not do. Guideline terms are "federal in character"
and must have "a single, invariant meaning, rather than a meaning
that changes from state to state." United States v. DeLuca, 17
F.3d 6, 8 (1st Cir. 1994). Guideline terms that are "not
specifically defined therein generally should be given their
common usage." Id. at 9. To ascertain a term's common usage, we
may look to the laws of the various states, see, e.g., United
States v. Cruz-Santiago, 12 F.3d 1, 2-3 (1st Cir. 1993), as well
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as relevant federal law and other sources, DeLuca, 17 F.3d at 9.
However, we are not bound to any particular state's definition of
a legal term when construing terms used in the sentencing
We turn then to our task of divining the common usage of
"stolen." In United States v. Turley, the Supreme Court addressed
the term "stolen" as it was used in the National Motor Vehicle
Theft Act. 352 U.S. 407, 408 (1957). Finding that the term "has
no accepted common-law meaning," the Court looked to the
legislative purpose behind the act. Id. at 411, 413. The Court
concluded that because Congress sought to prevent "innumerable
forms of theft," the term should be read broadly to include "all
felonious takings of motor vehicles with intent to deprive the
owner of the rights and benefits of ownership, regardless of
whether or not the theft constitutes common-law larceny." Id. at
We agree with the Eighth Circuit that "the context of
§ 2K2.1(b)(4) . . . likewise requires a broad interpretation of
'stolen.'" United States v. Bates, 584 F.3d 1105, 1109 (8th Cir.
2009); see also United States v. Jackson, 401 F.3d 747, 749-50
(6th Cir. 2005). As mentioned above, § 2K2.1(b)(4) has no scienter
requirement, and "[t]he history of the Guideline itself confirms
that the omission was intentional." United States v. González,
857 F.3d 46, 56 (1st Cir. 2017). In González, we upheld the
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provision against a due process challenge, recognizing that
"stolen firearms present special dangers, especially in the hands
of convicted felons . . . who cannot legally own any gun." Id. at
57. Because a broader reading "is consistent with the guideline's
purpose to punish and deter the trade in stolen and altered
firearms," we define "stolen" to encompass "all felonious or
wrongful takings with the intent to deprive the owner of the rights
and benefits of ownership, regardless of whether or not the theft
constitutes common-law larceny." Bates, 584 F.3d at 1109; accord.
Turley, 352 U.S. at 417.
Turning to the facts of this case, the district court
explicitly found that the gun was stolen and that the defendant
knew it was stolen, even though such knowledge is irrelevant to
whether the enhancement applies. The sentencing record supports
these findings. Jyllian took the gun from her mother's bedroom
without permission with the intent to give the gun to her brother
Gregory. Therefore, the gun could already be classified as
"stolen" when she hid it in her closet. Of course, someone then
took the gun from Jyllian's closet. It was the government's
position that Gregory took the gun from Jyllian's closet. Gregory
slept at the house the night the gun disappeared from Jyllian's
closet and Jyllian testified that Gregory was involved with "bad
people" and may have needed the gun. Moreover, Colby himself
testified that Gregory had stolen the gun.
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Finally, the district court explicitly found that "the
gun was hidden in the snow by the defendant and he did that to
hide the gun." This finding, which the record amply supports,
provides another basis for concluding that the gun was stolen.
Colby himself at some point took the gun and hid it in the woods,
thereby evincing an intent to deprive Stacey of the benefits of
As to whether Colby possessed Stacey's gun, Smith
testified that Colby threatened him with a gun that was similar in
appearance, Rogers saw Colby holding something with a handle in
his sweatshirt pocket, and Colby admitted that he had put the gun
in the snow bank in the text messages and phone calls he had with
Jyllian and Wyman.
Based on the evidence before it, the district court did
not clearly err in finding that Colby possessed a stolen gun and
therefore did not err in imposing the enhancement.
2 We note that, even if we were to apply the law of Maine to define
"stolen," which we will not do, these acts would likely qualify as
theft under Maine law. See Me. Rev. Stat. Ann. tit. 17-A
§ 352(3)(C) ("intent to deprive" necessary for theft occurs where
one "use[s] or dispose[s] of the property under circumstances that
make it unlikely that the owner will recover it or that manifest
an indifference as to whether the owner will recover it"); see
also State v. Burns, 26 A.3d 817, 821 (Me. 2011) ("Although a
person charged with theft may have intended to repay or otherwise
restore the stolen property, that person may 'nonetheless
consciously use . . . the money in a way which the jury could find
made it unlikely that the [rightful owner] would recover it, in
violation of section 352(3)(C).'" (quoting State v. Moon, 755 A.2d
527, 531 (Me. 2000))).
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B. Possession of a Firearm in Connection With Another Felony
Colby claims the district court should not have imposed
the four-level enhancement for possession of a firearm in
connection with another felony offense because its finding that
Colby had threatened Smith with Stacey's gun was clearly erroneous.
U.S.S.G. § 2K2.1(b)(6)(B) provides for a four-level enhancement if
a defendant "used or possessed any firearm or ammunition in
connection with another felony offense." The presentence report
identified the other felony offense as criminal threatening with
a dangerous weapon.
We see no clear error. First, there was more than
sufficient evidence for the district court to find that Colby had
come to possess Stacey's gun before March 17, 2015. Second, the
district court found Smith's account of the incident at his trailer
largely credible. Although the district court acknowledged that
there were some gaps in Smith's memory, it concluded that "someone
who is -- has a gun pointed at his face may well disregard a memory
of which way the door went in or out or even whether the gun had
a wide barrel or a somewhat narrower barrel." Having found Smith's
testimony credible, the district court concluded that Colby used
Stacey's gun to threaten Smith. We see no reason to disturb the
district court's credibility determination, and therefore find the
district court did not err in imposing the enhancement.
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C. Obstruction of Justice
Finally, we consider Colby's challenge to the district
court's application of the enhancement for obstruction of justice.
U.S.S.G. § 3C1.1 calls for a two-level enhancement "[i]f (1) the
defendant willfully obstructed or impeded . . . the administration
of justice with respect to the investigation, prosecution, or
sentencing of the instance offense of conviction, and (2) the
obstructive conduct related to . . . the defendant's offense of
conviction and any relevant conduct." "[C]ommitting perjury is an
example of the type of conduct to which this enhancement applies."
United States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994). In order
to impose the enhancement, the district court must make factual
findings that "encompass all the elements of perjury -- falsity,
materiality, and willfulness." Id.
Colby focuses on the willfulness element, arguing that
the district court failed to make a particular finding as to
whether Colby made false statements "with the willful intent to
provide false testimony, rather than as a result of confusion,
mistake, or faulty memory." United States v. Dunnigan, 507 U.S.
87, 94 (1993). We generally do not require the district court to
"address each element of perjury in a separate and clear finding."
Matiz, 14 F.3d at 84. Rather, we examine whether "a sentencing
court's findings encompass all of the factual predicates for a
finding of perjury." Id. Here, the district court found that
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Colby "perjured himself during trial by denying possession of the
gun and denying his activities vis-a-vis Forrest Smith" and further
found "all of those lies to be material" and "that those lies,
perjury, constitute obstruction."
In these circumstances, "[t]he nature of the material
falsehood[s] . . . is not one in which the willfulness of the
falsehood[s] could reasonably be questioned." United States v.
Mercer, 834 F.3d 39, 49 (1st Cir. 2016). Colby flatly denied that
he went to Smith's trailer on March 17, 2015 and threatened him.
He testified that he never touched Stacey's gun and that he only
saw the gun when Gregory had it. The district court permissibly
concluded that Colby's completely contradictory accounts of these
key facts in his case were not the result of "confusion, mistake,
or faulty memory." Dunnigan, 507 U.S. at 94. We find no error in
the district court's imposition of the obstruction of justice

Outcome: For the foregoing reasons, we affirm.

Plaintiff's Experts:

Defendant's Experts:


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