United States Court of Appeals
For the First Circuit
_________________________________
No. 04-1615
UNITED STATES OF AMERICA,
Appellee,
v.
ALSENIO SAMBOY,
Defendant, Appellant.
________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
_________________________________
Before
Selya and Lynch, Circuit Judges,
Restani, Judge.*
_____________________
December 29, 2005
_____________________
Bruce Green for appellant.
Virginia M. Vander Jagt with whom Michael J. Sullivan,
United States Attorney, was on brief, for appellee.
*
Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
RESTANI, Judge. Appellant, Alsenio Samboy, was convicted
of conspiracy to distribute at least 50 grams of cocaine base and
possession with intent to distribute and distribution of at least
50 grams of cocaine base. See 21 U.S.C. §§ 841(a)(1), 846. Samboy
moved to exclude evidence resulting from a warrantless search of
his dwelling, and a warrantless search of the apartment below his.
The district court denied Samboy’s motion, and following a jury
finding of guilt sentenced him to two concurrent terms of 175
months in prison and five years of supervised release. On appeal,
Samboy argues that the district court erred in denying his motion
to suppress. He also contends that his sentencing was improper
under United States v. Booker, 125 S. Ct. 738 (2005). Because
exigent circumstances justified the warrantless entry into Samboy’s
home, and because the record demonstrates no plain error in his
sentence, we affirm the judgment of the court below.
BACKGROUND
On September 14, 2000, Jose Miguel Padin was arrested for
conspiring to distribute and distributing cocaine base (“crack”).
Padin agreed to cooperate with authorities following his arrest,
and identified his supplier of cocaine as the Appellant, Alsenio
Samboy. Padin stated that Samboy stored drugs in his apartment at
82 Pleasant Street, Worcester, Massachusetts. Padin also mentioned
to the police that the apartment below Samboy’s residence was being
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used as part of Samboy’s drug operation.1
That day, the government proceeded to use this
information to set up a “controlled buy.” Padin was instructed to
contact Samboy via telephone and request 125 grams of crack.
Samboy agreed to the sale over the course of several telephone
calls. Four of the calls merit particular attention. During the
first call, placed at 2:30 P.M., Padin informed Samboy that he had
an interested buyer, but the call ended without any agreement by
Samboy to actually furnish Padin with narcotics. Samboy stated
that he was “afraid of doing it,” and that he would “let you
[Padin] know later on when you call me back if we can get that or
not.” At about 4:30 P.M., Padin called Samboy again and confirmed
that his buyer was ready. Samboy stated he would “send for that”
and requested that Padin call back again in fifteen or twenty
minutes. Padin called again at 5:25 P.M., stating that he was
about to leave for an auto-parts store where he would wait for
delivery. Samboy refused to send his courier to meet Padin until
he was certain Padin had arrived, and instructed Padin to call once
he arrived at his destination. Finally, at 5:32 P.M., Padin called
Samboy after arriving at the arranged location and received
confirmation that Samboy’s courier, Claudin Mar Dellossantos
(a.k.a. “Marcos”), was leaving.
1
At the time of his arrest, Padin erroneously stated that
Samboy lived on the third floor and stored drugs on the second
floor.
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During the course of these calls, police officers
positioned themselves around Samboy’s apartment complex. Prior to
the 5:32 call, officers witnessed Dellossantos leave 82 Pleasant
Street, drive away, and return a few minutes later. After the 5:32
call, officers again observed Dellossantos leave Samboy’s building.
They followed him to his meeting place with Padin, arrested him,
and recovered 125 grams of crack and a set of keys to Samboy’s
apartment. After Dellossantos’s arrest, several agents proceeded
to Samboy’s apartment on the fourth floor, while one agent went to
obtain a search warrant.
The police arrived at Samboy’s apartment at approximately
6:00 that evening to arrest him. Agents knocked and announced
themselves when they arrived. When they heard no response, they
used the keys found on Dellossantos to open Samboy’s door and enter
the apartment. When they entered, the police found Samboy on a
sofa with his cellular phone. They immediately put him under
arrest and conducted a search of Samboy and a “protective sweep” of
the apartment incident to that arrest. They found $440 in cash and
13.4 grams of cocaine in a bulge in Samboy’s pants pockets. Only
after arresting Samboy and securing the apartment did the officers
obtain a warrant to complete the search of the third and fourth
floors.
Officers also gave Samboy a printed Miranda warning,
written in Spanish, Samboy’s native language, and informed him in
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Spanish that he was under no obligation to sign the form, and that
he could make such alternations to the form as he saw fit. Samboy
signed the form, which gave the officers written permission to
conduct a full search of Samboy’s residence. Despite this, the
police waited until a warrant arrived at approximately 8:07 P.M. to
conduct a full search.
Between the time of Samboy’s arrest and the arrival of
the search warrant, the police conducted an investigation of the
common areas of the apartment building, during which they found a
key to the apartment on the third floor of the building. The
officers knocked on the door, announced themselves, and then
entered with the key after they received no response. Crack was
immediately found lying on a table, but the police refrained from
completing their search until the search warrants arrived.
Afterwards, the police conducted a full investigation of the
apartments on the third and fourth floors. The police found $3,600
in cash in the fourth-floor apartment. The police also discovered
a variety of drugs and drug paraphernalia in the third-floor
apartment, including 50.9 grams of crack, 633.9 grams of powder
cocaine, 158.8 grams of heroin, scales, cutting agents, and a pan
with crack residue.
On September 24, 2001, Samboy filed a motion to suppress
the evidence collected as a result of the warrantless search of his
apartment. The motion was denied without prejudice on January 29,
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2002. On February 13, 2003, Samboy filed a motion to reconsider
the court’s 2002 ruling. This motion requested that the court
suppress evidence related to the 13.4 grams of cocaine and $440
found on Samboy’s person, any evidence obtained from the search of
the third and fourth floor apartments, and statements of admission
by him resulting from his arrest. The motion was denied on August
18, 2003, and evidence found in the third and fourth floor
apartments was presented to the jury.
DISCUSSION
I.
The district court’s conclusions of fact are reviewed for
clear error, but we afford plenary review to the district court’s
ultimate conclusion regarding exigent circumstances. United States
v. Curzi, 867 F.2d 36, 42 (1st Cir. 1989).
It is a well-established principle of Fourth Amendment
law that warrantless searches inside a home are presumptively
unreasonable. See Payton v. New York, 445 U.S. 573, 586 (1980).
Even with probable cause to believe that evidence of a crime will
be found within a private dwelling, the constitutional protections
afforded to an individual’s privacy interest in his own home
outweighs the government’s interest in crime prevention. Id. at
588–89.
Nevertheless, a warrantless entry into a person’s
dwelling may be permitted if “exigent circumstances” arise. The
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government bears the burden of proving exigent circumstances.
United States v. Baldacchino, 762 F.2d 170, 176 (1st Cir. 1985).
To show exigent circumstances, the police must reasonably believe
that “there is such a compelling necessity for immediate action as
will not brook the delay of obtaining a warrant.” Fletcher v. Town
of Clinton, 196 F.3d 41, 49 (1st Cir. 1999) (quoting United States
v. Almonte, 952 F.2d 20, 22 (1st Cir. 1991)). Proof of exigent
circumstances “should be supported by particularized, case-specific
facts, not simply generalized suppositions about the behavior of a
particular class of criminal suspects.” United States v. Hidalgo,
747 F. Supp. 818, 828 (D. Mass. 1990). We have recognized a number
of situations giving rise to exigent circumstances, including when
delay would risk the destruction of evidence. See United States v.
Wihbey, 75 F.3d 761, 768 (1st Cir. 1996); see also United States v.
Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir. 1988) (finding
exigent circumstances “when there is an urgent need to prevent
evidence from being lost or destroyed,” particularly in drug cases
where “‘narcotics can be easily and quickly destroyed while a
search is progressing’”) (quoting United States v. Socey, 846 F.2d
1439, 1444–45 (D.C. Cir. 1988)). Officers are justified in relying
on this exception only if they show an objectively reasonable basis
for concluding that the loss or destruction of evidence is likely
to occur. Wihbey, 75 F.3d at 768.
At the time the police entered Samboy’s apartment, the
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police knew that Samboy was present, that he had recently sent
Dellossantos to deliver drugs, and that Dellossantos had been
arrested and therefore had not returned or contacted Samboy. The
district court thus arrived at the conclusion that, when the police
received no response after knocking and announcing their presence,
there arose a “reasonable belief that Samboy was alerted to their
presence and might try to destroy evidence in the apartment.
Consequently, there were sufficient exigent circumstances to
justify entry into the fourth floor apartment without obtaining a
warrant . . . .”
We see no clear error in the district court’s factual
findings. As a matter of law, we agree with the district court
that these facts gave rise to a reasonable belief that Samboy
probably would have realized the police were closing in and begun
disposing of evidence had the police waited to obtain a search
warrant at the time of Dellossantos’s arrest. Courts have found
exigent circumstances in similar cases where a courier’s failure
promptly to return to a suspected dealer served as a likely
indication of his arrest. See, e.g., Sangineto-Miranda, 859 F.2d
at 1513 (absence of courier while dealer was reasonably believed to
remain in suspect apartment led to reasonable belief that the
courier’s “continued absence . . . would alert [the dealer] that
the police were on [his] trail, thereby prompting him to destroy
narcotics”); United States v. Moore, 790 F.2d 13, 16 (1st Cir.
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1986) (failure of courier “to return . . . promptly . . . could
create a substantial risk that appellant would flee or destroy
evidence”).
A. Delay In Seeking A Warrant
Samboy argues that there could not have been exigent
circumstances because the police improperly waited to request a
search warrant after obtaining probable cause by corroborating
Padin’s statements with telephone calls to Samboy. Appellant cites
United States v. Beltran, 917 F.2d 641 (1st Cir. 1990), for the
proposition that no exigent circumstances exist when “the police
fully expect that they may have to enter a home to make an arrest
in the near future, and . . . they have more than enough time and
knowledge to secure a warrant.” Id. at 643. In Beltran, police
acted on information provided by a confidential informant who
indicated that Beltran had sold him cocaine in the past. Id. at
642. The information was used to arrange two closely monitored
cocaine sales on two consecutive days. Id. After the first sale
of two ounces of cocaine was completed, investigators instructed
their informant to arrange for a second purchase of one pound of
cocaine the following day. Id. At 4:20 P.M. on the second day,
Beltran instructed the informant to come to her apartment at 7:30
that evening. Id. Instead of seeking a warrant, the police
arrested Beltran after their informant entered Beltran’s apartment
and returned with confirmation that he had seen the cocaine. Id.
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The court reasoned that no exigent circumstances existed because
“in this case, three or four hours before the police arrested Ms.
Beltran, they knew that they were likely to do so, they had an
adequate basis for obtaining a warrant, and they could have
obtained one.” Id. at 643.
Beltran raises two distinct questions regarding the
police’s conduct in this case. First, at what time did the police
finally have probable cause to search Samboy’s apartment? Second,
were the police justified in waiting as long as they did in
obtaining a warrant after obtaining probable cause? We address
each issue in turn.
Probable cause cannot be based on conclusory statements,
or mere “suspicion, rumor, or strong reason to suspect
[wrongdoing].” United States v. Vigeant, 176 F.3d 565, 569 (1st
Cir. 1999) (quoting United States v. Han, 74 F.3d 537, 541 (4th
Cir. 1996) (internal quotations omitted, alterations in original)).
Uncorroborated tips are often insufficient to provide a reasonable
basis to enter a person’s home, and the police are often justified
in waiting for corroboration before making an application to a
magistrate for a warrant. See United States v. Capozzi, 347 F.3d
327, 333 (1st Cir. 2003) (reliance on an anonymous source requires
police to “attempt to corroborate the informant’s story under the
totality of the circumstances”). The officers were reasonable in
determining that Padin’s statements alone might not be sufficient
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to support probable cause. Thus, the police acted reasonably in
deciding to seek additional corroboration for Padin’s story before
seeking a warrant.
The question then becomes which of the telephone
conversations between Padin and Samboy, if any, established
probable cause to arrest Samboy. Transcripts of the 2:30 telephone
call provide some corroboration, but ended without any agreement by
Samboy to actually furnish Padin with narcotics. Instead, Samboy
stated that he was afraid of “doing it,” that he would see “if we
can get that or not,” and that Padin should wait until his buyer
called to get back in touch with him. During the 4:30 call, Samboy
asked for another twenty minutes to obtain “it” and requested that
Padin call back again. When Padin called at 5:25, Samboy still
refused to dispatch a courier to Padin until he arrived at the
prearranged location. It was not until 5:32 that the police heard
Samboy say that Dellossantos had been sent to complete the
transaction.
It may be that the police had probable cause to seek a
warrant for Samboy’s arrest and to search his apartment at 5:32.
It is also likely that probable cause existed after the 5:25 call,
which finalized preparations for the transaction. An argument may
be made that the police had probable cause at 4:30, when Samboy was
alerted to Padin’s desire to complete the transaction and Samboy
indicated that he would get the product ready. Samboy argues,
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however, that the government should have sought a warrant after
Padin’s 2:30 P.M. call with Samboy. The police could reasonably
conclude it was doubtful that the 2:30 call established probable
cause. At that time, Samboy had not agreed to the transaction, and
had indicated that he didn’t have the drugs with him. See United
States v. Moore, 790 F.2d at 15 (“Probable cause exists when ‘given
all the circumstances, there is a fair probability that contraband
or evidence will be found in the place described.’”) (quoting
United States v. White, 766 F.2d 22, 25 (1st Cir. 1985)).
Assuming that the police had probable cause to seek a
warrant as early as 4:30, this led to about an hour-and-forty-five
minute delay between the time probable cause arose and the time
Samboy was arrested.2 There is no legal rule requiring the police
to seek a warrant as soon as probable cause likely exists to seek
a warrant. Beltran, 917 F.2d at 643. Nor does the fact that in
setting up a controlled buy the police might have foreseen the
eventual entry into Samboy’s apartment, standing alone, prevent
application of the exigent circumstances doctrine. See United
States v. Cresta, 825 F.2d 538, 553 (1st Cir. 1987)
(“Unforeseeability has never been recognized as an element of the
exigent circumstances exception . . . .”). Instead, we have
refused to find exigent circumstances where the “circumstances
2
In this case, it took about two hours (approximately from
6:00 to 8:07 P.M.) to obtain a search warrant after arresting
Samboy.
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[were] created by government officials who unreasonably and
deliberately delay[ed] or avoid[ed] obtaining the warrant.” United
States v. Rengifo, 858 F.2d 800, 804 (1st Cir. 1988). Three facts
indicate that a deliberate and unreasonable delay did not occur in
this case.
First, unlike Beltran, the police had observed no prior
consummated sale between Padin and Samboy. Second, when first
attempting to arrange such a sale, Samboy expressed doubt as to
whether the sale would occur. These facts indicate that the police
were probably less certain of the veracity of their informant than
the police in Beltran. Third, this case involves the arrest of a
courier, Dellossantos, shortly before the arrest of a dealer,
Samboy. Since Samboy had hesitated to send Dellossantos until the
last minute, Samboy’s actions gave the police a limited amount of
time in which to act. Under these circumstances, the record
reasonably supports a conclusion that the police reasonably delayed
not from a desire to avoid seeking a warrant, but because the
circumstances of the investigation demanded first caution and then
an immediate response.
B. Manufactured Exigency
Samboy made no mention of a manufactured exigency in the
court below. To raise an argument on appeal, a party must “‘spell
out its arguments squarely and distinctly’ . . . or else forever
hold its peace.” Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
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Cir. 1988) (quoting Paterson-Leitch Co., Inc. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988)). Rather,
“[t]o preserve a point for appeal, some developed argumentation
must be put forward in the nisi prius court – and a veiled
reference to a legal theory is not enough to satisfy this
requirement.” B & T Masonry Const. Co., Inc. v. Pub. Serv. Mut.
Ins. Co., 382 F.3d 36, 40 (1st Cir. 2004). Samboy did object to
the warrantless search in the court below, arguing that the police
“could have secured an anticipatory search warrant,” but did not
suggest at any point that the police deliberately created an
exigent circumstance requiring immediate intervention. In fact,
Samboy maintained just the opposite, arguing that no exigent
circumstances arose at all. Such an argument does not raise the
question of manufactured exigency for review on appeal. United
States v. Martins, 413 F.3d 139, 149 (1st Cir. 2005). In any case,
as discussed in the previous section, there is no evidence that the
police were simply manufacturing the exigency.
II.
Samboy briefly contends on appeal that the search of the
third-floor apartment independently violated the Fourth Amendment.
To raise such an argument,
a defendant must demonstrate that he
personally has an expectation of privacy in
the place searched, and that his expectation
is reasonable; i.e., one that has “a source
outside of the Fourth Amendment, either by
reference to concepts of real or personal
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property law or to understandings that are
recognized and permitted by society.”
Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas v.
Illinois, 439 U.S. 128, 143 n.12 (1978)). An expectation of
privacy is the “threshold standing requirement that a defendant
must establish before a court can proceed with any Fourth Amendment
analysis.” United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir.
1994). We find that Samboy failed to argue his subjective privacy
interest in the third-floor apartment in the court below.
Moreover, Samboy has not pointed to any evidence to show that his
interest in the apartment was one society would recognize as
reasonable.
Prior to trial, Samboy mentioned neither his subjective
nor objective interest in the third-floor apartment. Samboy’s
original Motion to Suppress and his Motion for Reconsideration
state only that, subsequent to entering Samboy’s fourth-floor
residence and arresting him, the officers proceeded to search areas
outside Samboy’s immediate control, including “a search of all the
rooms, the hallways, and the 3rd floor apartment.” This argument
simply assumes the prerequisite question of whether Samboy had a
reasonable privacy interest in the third-floor apartment. As we
held in Lewis, a failure to present evidence with respect to such
an expectation prevents a defendant from making a claim for
suppression under the Fourth Amendment. 40 F.3d at 1333.
Samboy argues in his appellate brief that he “manifested
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a subjective expectation of privacy in the place searched,” but has
failed even to allege that his asserted interest would be viewed by
society as reasonable. This is a fatal flaw, since a subjective
belief in one’s privacy is meaningless unless one can show that
society would consider the belief reasonable. Lewis, 40 F.3d at
1333; see also Carter, 525 U.S. at 91 (upholding use of evidence
obtained from apartment where temporary guests present for the sole
purpose of distributing drugs had no recognized expectation of
privacy).
Indeed, Samboy’s strategy throughout the proceedings was
to distance himself from any possible interest in the third-floor
apartment. Though he may have argued that he lacked an interest at
trial while arguing that he did in fact have a recognized interest
in the apartment in his motion to suppress, he did not do so.
See Lewis, 40 F.3d at 1333 (evidence used to establish “standing”
to raise Fourth Amendment claim cannot be used as direct evidence
at trial to establish guilt or innocence). Samboy did not suggest
at any time that he rented or owned the apartment in question, nor
did he suggest that he had a right to exclude others or even that
he maintained a regular presence there. Evidence that somebody had
locked the door and hidden the key is insufficient to establish a
legitimate privacy interest. See United States v. Lopez, 380 F.3d
538, 545 (1st Cir. 2004) (“[E]fforts to restrict access to an area
do not generate a reasonable expectation of privacy where none
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would otherwise exist.” quoting New York v. Class, 475 U.S. 106,
114 (1986)).
III.
Samboy objects to his sentencing under the mandatory
United States Sentencing Guidelines (“Guidelines”). At the time of
his sentencing, the Supreme Court’s opinion in Booker had not yet
been issued, although oral arguments in Blakely v. Washington, 542
U.S. 296 (2004), had taken place. Samboy concedes that he failed
to object to the application of the mandatory Guidelines at his
sentencing. Thus, his objection is forfeited and we review for
plain error. United States v. Antonakopoulos, 399 F.3d 68, 76 (1st
Cir. 2005).
To succeed in establishing plain error, Samboy must
demonstrate four elements. First, he must show that there was
error. See United States v. Olano, 507 U.S. 725, 732 (1993).
Second, he must show that the error was plain. Id. Third, he must
show that the error affected substantial rights. Id. Fourth, he
must show that the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. Id. The
first two prongs of the Olano test are satisfied because Samboy’s
sentence was imposed under a mandatory Guidelines system. See
Antonakopoulos, 399 F.3d at 77 (1st Cir. 2005). As to the third
and fourth prongs, “ordinarily the defendant must point to
circumstances creating a reasonable probability that the district
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court would impose a different sentence more favorable to the
defendant under the new ‘advisory Guidelines’ Booker regime.” Id.
at 75. Samboy fails to make such a showing.
To show a reasonable probability that a different
sentence would have been imposed in a non-mandatory guidelines
system, Samboy must provide, at a bare minimum, a “reasonable
indication that the district judge might well have reached a
different result under advisory guidelines.” United States v.
Heldeman, 402 F.3d 220, 224 (1st Cir. 2005). Samboy has not shown
that he would have received a lighter sentence under the advisory
Guidelines. To the contrary, Judge Gorton emphasized that he was
inclined to impose a higher sentence, and that Samboy “would be
going to jail for a longer period of time but for some of the
extenuating arguments by [defense counsel].” He declared that
Samboy committed a “horrendous” crime and that it was a “close
call” not to add two sentence levels for leadership in the
conspiracy. There is no indication that under an advisory system
Samboy’s sentence would have been any lower.
Samboy asks this court to abandon its interpretation of
the third element of plain-error review in the context of Booker
challenges in favor of a standard of presumed prejudice. We have
already rejected a per-se rule that would presume prejudice or
miscarriage of justice under Booker. See Antonakopoulos 399 F.3d
at 79. We also decline to alter the burdens of proof established
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for plain-error review by creating a rebuttable presumption of
prejudice in a case where the district judge explicitly stated that
he considered only a higher, not lower, sentence. See Booker, 125
S. Ct. at 745 (“[W]e expect reviewing courts to apply ordinary
prudential doctrines, [including] whether the issue was raised
below and whether it fails the ‘plain-error’ test.”).
Samboy also fails to raise a viable argument on the
fourth prong of plain-error review. We have held that “one cannot
possibly say that all sentences imposed before Booker threatened
the fairness, integrity, or public reputation of judicial
proceedings, or undermined our confidence in the outcome of the
sentence, simply because the Guidelines were mandatory.”
Antonakopoulos, 399 F.3d at 80 (emphasis removed).
IV.
Because the police’s warrantless search of Samboy’s
apartment was precipitated by exigent circumstances and Samboy has
failed to demonstrate a reasonable expectation of privacy in the
third-floor apartment, we find the police’s seizures proper under
the Fourth Amendment. Moreover, Samboy has failed to demonstrate
that use of mandatory Guidelines resulted in plain error at his
sentencing.
We therefore Affirm the judgment of the district court.
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