United States of America v. Chester L. Adams

*The Honorable Kathleen M. O’Malley, United States District Judge
for the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0183P (6th Cir.)
File Name: 00a0183p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
C HESTER L. ADAMS,
Defendant-Appellant.
;>

1
No. 98-6522
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 97-20267—Julia S. Gibbons, Chief District Judge.
Argued: March 6, 2000
Decided and Filed: June 1, 2000
Before: SILER and GILMAN, Circuit Judges;
O’MALLEY, District Judge.*
_________________
COUNSEL
ARGUED: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for

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Appellant. Tony R. Arvin, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Tony R. Arvin, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Chester Adams
and his brother, Terry Adams, committed a series of
carjackings and armed robberies in Memphis, Tennessee
during August and September of 1996. (For the sake of
simplicity, this opinion will refer to the two brothers by their
first names.) On June 25, 1998, a federal grand jury in the
Western District of Tennessee returned a twenty-six count
indictment against Chester, charging him with carjacking,
robbery, attempted robbery, and possessing firearms and
ammunition as a convicted felon. Chester was tried and
convicted on all counts. The district court sentenced him to
a term of life plus 205 years, and he was ordered to pay
$23,890 in restitution. In this appeal, Chester raises four
challenges to his conviction, sentence, and restitution order.
For the reasons set forth below, we REVERSE the district
court’s sentencing on one of the four counts of firearms
possession 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 held
up the driver of a black 1996 Lexus at a self-serve carwash in
midtown Memphis. The brothers next attempted to rob a
Kroger grocery store. Early in the morning of August 26,
No. 98-6522 United States v. Adams 11
payment would be impossible. Id. at 982. Chester, on the
other hand, was only twenty-nine years old at the time of his
sentencing and has a life sentence during which to pay off his
$23,890 restitution obligation through the Federal Bureau of
Prisons’ Inmate Financial Responsibility Program. Under
these circumstances, the amount of the restitution order does
not constitute an abuse of the district court’s discretion.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
district court’s sentencing as to count twenty-six and
AFFIRM as to the remainder of the judgment, sentence, and
restitution order.

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10 United States v. Adams No. 98-6522
finding, we affirm Chester’s three-level sentencing
enhancement.
D. Restitution order
Chester finally argues that, pursuant to the recent case of
United States v. Dunigan, 163 F.3d 979 (6th Cir. 1999), the
district court erred in ordering him to pay $23,890 in
restitution. This court in Dunigan held that a district court
must consider “the amount of the loss sustained by any victim
as a result of the offense, the financial resources of the
defendant, the financial needs and earning ability of the
defendant and the defendant’s dependents, and such other
factors as the court deems appropriate” when ordering
restitution. Id. at 981. Chester contends that “[t]he district
court made no finding that the defendant had even a minimal
chance 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 be
disturbed unless the district court abuses its discretion. See
id. We conclude that the district court in the present case did
not abuse its discretion in fixing the amount of restitution.
First, the burden is on the defendant to demonstrate that a
restitution order far exceeds his resources and earning
potential. See id. at 982; see also United States v. Frost, 914
F.2d 756, 774 (6th Cir. 1994) (holding that a district court
need not make specific findings concerning a defendant’s
financial condition). Chester has not made such a showing in
this case. Second, a restitution order is permissible even if
the defendant lacks the present ability to pay. See United
States 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 the
district court ordered the indigent defendant, whose prior
income had been under $2,000 a month, to pay the relatively
enormous sum of $311,605 within the three-year period of his
supervised release. See Dunigan, 163 F.3d at 980. On
appeal, this court found that, “absent a miracle,” such a
No. 98-6522 United States v. Adams 3
1996, with the store still closed, they climbed atop the
building and began cutting a hole through the roof. They
were armed with 9-millimeter handguns and were carrying
police radio scanners. As they were cutting the hole,
however, it began to rain, and the water leaking through the
hole set off the store’s alarm. At that point, the Adams
brothers abandoned their plan.
On August 29, 1996, the brothers successfully carried out
a similar plan at the nearby Walgreens drugstore. They cut a
hole in the store’s roof before the store opened and Terry
descended into the store. Chester waited across the street and
served as a look-out. When the manager and bookkeeper
arrived, Terry forced them to open the store’s safe at
gunpoint. He then tied up the employees and fled with the
money.
The Adams brothers’ next crime was another carjacking on
the night of August 31, 1996, during which they held up a
woman and stole her Nissan Pathfinder. Then, on
September 3, 1996, the brothers robbed an employee of
Simply Six Fashions as she was attempting to deposit the
store’s receipts at a bank in midtown Memphis.
Two days later, the brothers entered the EZ Pawn Shop in
Memphis wearing masks and carrying handguns. They
sprayed the shop’s employees and customers with pepper
spray and stole twelve handguns from the store.
At approximately 2 a.m. on the morning of September 12,
1996, Memphis Police Officer Donna Roach spotted the
stolen black Lexus in the parking lot of an Exxon Tigermart.
Officer Roach saw Terry get into the Lexus with Chester. She
then pulled up beside the vehicle to get a better look at the
two individuals in the front seat. At the time, Officer Roach
was in plainclothes and was driving an unmarked car. When
the brothers drove off, Officer Roach followed them. At first,
the brothers drove slowly, making numerous turns onto side
streets. They then picked up speed, while still making many
turns. Officer Roach followed throughout. Finally, the
brothers pulled into the driveway of a house and stopped.

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4 United States v. Adams No. 98-6522
Officer Roach parked her car a block away. Chester and
Terry then opened fire on Officer Roach’s car from inside the
Lexus, firing ten to fifteen shots. Officer Roach ducked
beneath her dashboard, quickly backed away, and called for
assistance.
Police officers found the Lexus about a half hour later. It
had been set on fire in an abandoned lot. The officers
discovered a Ruger 9-millimeter handgun at the right rear tire
of the car. Later in the day on September 12, 1996, the
Adams brothers carjacked a Ford Taurus at a convenience
store in midtown Memphis. The next day, they robbed the
manager of a Fox Photo store as he was entering a midtown
Memphis bank to make a deposit. Then, on September 20,
they committed two more armed carjackings, stealing a
Honda Civic and a Toyota Camry.
On the following morning, September 21, the brothers
robbed an Ace America Cash Express store. As the store’s
clerk was unlocking the door, Chester grabbed her and pulled
her inside the store. He then forced her, at gunpoint, to open
the store’s safe.
On the night of September 25, police officers observed the
Adams brothers in midtown Memphis. When approached by
the officers, the two split up and ran. Chester was caught
shortly thereafter by two of the officers. As he ran, he
discarded a maroon shaving kit bag that was found to contain
the keys to two of the carjacked vehicles and approximately
three thousand dollars in cash wrapped in an Ace America
Cash Express wrapper. Officers also found a Jennings Bryco
9-millimeter handgun and a police scanner in a weeded area
that Chester had run through moments before being captured.
The handgun was later determined to be one of the guns taken
in the EZ Pawn Shop robbery.
Other officers chased after Terry. When Terry turned and
pointed a gun at a pursuing officer, the officer shot and
wounded him. Terry was found to have a 9-millimeter
handgun, a police scanner, and the driver’s license of one of
the carjacking victims in his possession. The next day, on
No. 98-6522 United States v. Adams 9
three counts of firearms possession because there was no
showing that the guns were stored or acquired separately).
This will not affect Chester’s overall sentence, however,
because Chester was sentenced to concurrent life terms on
these four counts.
C. Sentencing as to count fourteen—enhancement for
assaulting a police officer
Chester received a three-level enhancement on count
fourteen (one of the firearm possession counts) for assaulting
Officer Roach by firing at her car on the night of September
12, 1996. The Sentencing Guidelines provide for an
enhancement if the defendant, “knowing or having reasonable
cause to believe that a person was a law enforcement or
corrections officer, assaulted such officer in a manner creating
a substantial risk of serious bodily injury.” U.S.S.G.
§ 3A1.2(b). Chester argues on appeal that he did not know or
have reasonable cause to believe that Officer Roach, who was
not in uniform and was driving an unmarked car on the night
of September 12, was a law enforcement officer.
The district court found that Chester did know or have
reasonable cause to believe that Officer Roach was a police
officer. This finding was based on a “whole sequence of
events,” during which Officer Roach first pulled up alongside
the Adams brothers’ car and watched them, then pursued
them along a circuitous route for an extended time, and came
to a stop a block away when the brothers turned into a
driveway. Finally, the district court noted that the brothers
fired ten to fifteen shots at Officer Roach’s car.
A district court’s finding at a sentencing proceeding that the
defendant knew or had cause to believe that he was assaulting
a law enforcement officer will not be disturbed unless it is
clearly erroneous. See United States v. Farrow, 198 F.3d 179,
196 (6th Cir. 1999). After observing Officer Roach’s
investigative behavior and then opening fire on her vehicle,
Chester cannot plausibly maintain that he reasonably believed
Officer Roach to simply be an inquisitive civilian. Because
the totality of the circumstances supports the district court’s

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8 United States v. Adams No. 98-6522
review this omission under the “plain error” standard. See
United States v. Christian, 786 F.2d 203, 213 (6th Cir. 1986)
(holding that “[a]ny objection to lack of instruction was
waived by defendant’s failure to make timely request for a
limiting instruction” and proceeding to review the omission
for “plain error affecting substantial rights”). “Plain error
requires a finding that, taken as a whole, the jury instructions
were so clearly erroneous as to likely produce a grave
miscarriage 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 in
counts thirteen, fourteen, and twenty-five were possessed in
separate places and at separate times, we do not believe that
the district court’s failure to instruct as to separate possession
constituted a grave miscarriage of justice. See United States
v. Bonavia, 927 F.2d 565, 570-71 (11th Cir. 1991) (holding
that a district court’s failure to instruct the jury regarding
separate possession was not plain error where there was
sufficient evidence adduced to find that the defendant
possessed the two weapons on separate occasions).
Chester does raise a valid objection, however, to the
appropriateness of count twenty-six of the indictment as a
separate charge. Chester dropped or discarded the Smith &
Wesson .380-caliber handgun—charged in count twenty-
five—when he jumped out of the moving pickup truck on
September 7, 1997. When the police caught up with him a
few minutes later, they discovered a .380-caliber ammunition
clip on his person, for which Chester was charged separately
in count twenty-six. Aside from this brief gap in the time of
possession, the government introduced no evidence
demonstrating that Chester stored or acquired the ammunition
clip separately from the gun.
Because there was no showing that Chester separately
stored or acquired these items, we reverse Chester’s
conviction on count twenty-six. See Rosenbarger, 536 F.2d
at 721 (reversing the defendant’s conviction on two of his
No. 98-6522 United States v. Adams 5
September 26, 1996, police detectives questioned Chester
after reading him his Miranda rights. Chester admitted that
he had participated in the carjackings and robberies detailed
above. He also admitted to shooting at Officer Roach.
Chester and Terry escaped from custody several months
later. In the early morning hours of September 7, 1997, police
officers spotted two men in downtown Memphis driving a
GMC pickup truck that had been reported stolen in a
carjacking a few days earlier. A high speed chase ensued. At
one point, the pickup truck slowed down momentarily and
Chester jumped out from the passenger side of the vehicle.
The pickup then sped off, eluding the police. The police
apprehended Chester after a brief chase. When he was
caught, Chester was wearing a high quality bullet-proof vest
and a handgun holster that held a loaded handgun clip
containing .380 caliber ammunition. Officers found a .380-
caliber Smith & Wesson handgun on the ground at the spot
where Chester had jumped out of the pickup truck.
B. Procedural background
On July 24, 1998, a jury convicted Chester on all twenty-six
counts of the indictment. The district court sentenced him to
a total term of life plus 205 years, to be served consecutively.
Chester was also ordered to pay restitution of $23,890 to the
various victims of his crimes.
II. ANALYSIS
A. Conviction as to counts three and four—attempted
robbery
Count three of the indictment charged Chester with
attempting to rob the Kroger grocery store on August 26,
1996 in violation of the Hobbs Act, 18 U.S.C. § 1951. Count
four charged Chester with carrying and using a firearm during
and in relation to this attempted robbery. Chester claims that
there was insufficient proof to support his convictions on
these two counts because the evidence, at most, supports a

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6 United States v. Adams No. 98-6522
finding that he intended to burglarize the Kroger store, not rob
it.
A conviction must be sustained if “any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original). In reviewing sufficiency of the
evidence claims, a court must view the evidence in the light
most 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 or
obtaining of personal property from the person or in the
presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury . . . .” 18
U.S.C. § 1951(b). Burglary, in contrast, does not require the
use or threat of force, and consists simply of the unlawful or
unprivileged entry into a building or structure with the intent
to 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 acts
toward that end.” United States v. Calloway, 116 F.3d 1129,
1136 (6th Cir. 1997). Once a defendant takes a “substantial
step” 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 and
commit a crime. The relevant question, then, is whether their
intent was to steal from the store and leave before it opened,
or to wait inside for an employee to arrive and commit a
robbery.
When viewed in the light most favorable to the
government, the facts support a finding that the Adams
brothers intended to rob the Kroger store. Both men were
carrying guns that morning and, until they were interrupted by
the store’s alarm, they were following the identical plan that
they successfully executed three days later in robbing the
No. 98-6522 United States v. Adams 7
Walgreens drugstore. A reasonable trier of fact could
conclude from this circumstantial evidence that the Adams
brothers intended to rob the Kroger store.
B. Sentencing as to counts thirteen, fourteen, twenty-
five, and twenty-six—felony possession of a firearm
or ammunition
Chester next challenges the district court’s imposition of
separate sentences for four counts of being a felon in
possession of a firearm or ammunition. These counts are
based upon his possession of three handguns and one
ammunition clip. The appropriate test when multiple
weapons are confiscated is set forth in United States v.
Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976): “[O]nly one
offense is charged under the terms of § 1202(a)(1) regardless
of the number of firearms involved, absent a showing that the
firearms were stored or acquired at different times or places.”
It is the government’s burden to establish separate offenses
under the statute. See id.
The government met its burden in this case as to three of
the four counts. It is clear from the face of the indictment that
the Bryco 9-millimeter handgun charged in count thirteen, the
Ruger 9-millimeter handgun charged in count fourteen, and
the Smith & Wesson .380-caliber handgun charged in count
twenty-five were each discovered by the police on separate
occasions and in different places. Each gun therefore
properly served as the basis for a separate violation of 18
U.S.C. § 922(g). See United States v. Killebrew, 560 F.2d
729, 734 (6th Cir. 1977) (stating, for the guidance of the
district court on remand, that a conviction on two separate
counts of firearms possession was appropriate where the
evidence indicated that the defendant had acquired the two
weapons on separate occasions).
Chester nevertheless argues that the district court erred by
failing to explicitly instruct the jury to determine whether
these weapons were separately stored or acquired. Because
Chester failed to contemporaneously object to the court’s
failure to give an instruction on separate possession, we

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