United States Court of Appeals
For the First Circuit
No. 06-1683
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN McCARTY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Jeffrey M. Silverstein, with whom Russell, Silver &
Silverstein was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
February 2, 2007
TORRUELLA, Circuit Judge. Steven McCarty ("McCarty") was
charged in an indictment with possessing an unregistered firearm in
violation of 26 U.S.C. §§ 5861(d) and 5871, and with possessing a
firearm after having previously been committed to a mental
institution in violation of 18 U.S.C. § 922(g)(4). McCarty moved
to suppress certain statements and evidence he claimed were
obtained in violation of the Fourth and Fifth Amendments. The
court denied the motion. McCarty then entered a guilty plea
conditioned on his right to appeal the denial of the motion to
suppress. The court sentenced McCarty to thirty-six months in
prison, to be followed by three years of supervised release.
McCarty now appeals the denial of the motion to suppress and his
sentence. After careful consideration, we affirm.
I. Background
On July 10, 2004, at 4:18 P.M., Police Officer1 Brame
("Brame") received a complaint from a woman identifying herself as
McCarty's ex-girlfriend. She told Brame that she had recently been
to McCarty's apartment to retrieve her possessions, that McCarty
was in possession of marijuana plants, and that McCarty had
"vaguely" threatened her with a sawed-off shotgun. Brame told
Detective Goss ("Goss") about the matter; Goss called the woman
back, and asked her to come into the police station. After
1
Unless otherwise noted, all police officers and detectives
referred to in this opinion are from the City of Waterville Police
Department.
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interviewing the woman and her sister and learning that McCarty had
been recently institutionalized for mental illness, Goss drafted a
warrant application to search McCarty's apartment. Goss brought
the warrant application to a state district attorney for approval,
and then presented the application to a state complaint justice.
While Goss was seeking approval of the warrant, Police Officer
Rumsey ("Rumsey") contacted Bureau of Alcohol, Tobacco, and
Firearms ("BATF") Agent McSweyn ("McSweyn"), and informed him that
they would be executing a search warrant on an apartment thought to
contain firearms. The state complaint justice issued the warrant
at approximately 8:30 P.M.2 A box on the warrant stated, "This
warrant shall be executed between the hours of 7:00 AM and 9:00
PM."
Brame, Goss, Rumsey, and three other police officers
proceeded to McCarty's apartment, arriving at 8:56 P.M. At 8:57
P.M., Brame knocked on McCarty's door, announced his identity, and
stated that he had a search warrant. After gaining entry, the
officers encountered McCarty, handcuffed him, and led him to a
couch in his living room. The officers began to search the
apartment at 8:58 P.M. The officers found marijuana and marijuana
2
The warrant authorized the police to search for drugs, drug
paraphernalia, and evidence of ownership, distribution, or
cultivation of drugs. Police Officer Goss stated that he did not
address the sawed-off shotgun in the warrant application because it
was not prohibited by Maine law. Neither party challenges the
scope of the warrant.
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paraphernalia in the apartment. While searching behind the couch
in McCarty's living room, Goss found a duffle bag containing a 12-
gauge sawed-off shotgun. When McCarty saw Goss uncover the gun, he
stated that it was an antique known as "the old peacemaker," and
that it was in the same condition as when it was manufactured.
McCarty then asked the police officers for permission to smoke a
cigarette, which he was allowed to do. Upon returning to the
apartment, McCarty complained that his handcuffs were too tight,
and Goss removed them. Goss then seated McCarty at a table
approximately four to five feet away from the duffle bag containing
the gun.
McSweyn arrived and conferred with Goss. Goss told
McSweyn that he had found a gun, and showed him the shotgun. When
Goss showed McSweyn the shotgun, McCarty stated, "That's mine.
It's an old peacemaker." McSweyn measured the gun, and determined
that the barrel length was eleven inches.
McSweyn then began to question McCarty. At this time, a
member of the search team, Police Officer Burbank, was standing
next to McCarty. Before asking him any questions, McSweyn did not
read McCarty any Miranda warnings, but instead told McCarty that he
was not under arrest, that he was free to leave whenever he wanted,
and that he did not have to answer questions. McCarty nevertheless
told McSweyn that he had received the gun from his grandfather,
that he had altered it to make it easier to fire and that he had in
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fact fired the weapon, and that he had not registered the gun with
the BATF. McCarty also repeated his assertion that the gun was an
antique. The search concluded at 10:35 P.M., when all law
enforcement officers left the apartment.
On February 9, 2005, a grand jury indicted McCarty on one
count of possession of an unregistered firearm in violation of 26
U.S.C. §§ 5861(d) and 5871, and one count of possession of a
firearm after having previously been committed to a mental
institution in violation of 18 U.S.C. § 922(g)(4). McCarty was
arrested on April 14, 2005. On May 9, 2005, McCarty filed a motion
to suppress all evidence collected at his apartment because the
search warrant was defectively executed when officers remained past
9:00 P.M., and to suppress all statements McCarty made to Goss and
McSweyn because McCarty was not informed of his Miranda rights.3
The motion was referred to a magistrate judge, who recommended that
it be denied. The district court accepted the recommendation of
the magistrate judge and issued an order denying the motion to
suppress. On October 12, 2005, McCarty pled guilty pursuant to a
conditional plea reserving his rights to appeal the denial of the
motion to suppress.
3
McCarty also moved to suppress evidence collected at his
apartment because he alleged that officers failed to knock and
announce themselves before executing the warrant. The court denied
this motion, and McCarty does not raise it on appeal.
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McCarty's amended pre-sentence report ("PSR") calculated
his base offense level at 20, U.S.S.G. § 2K2.1(a)(4)(B) (2003).4
The PSR applied a two-level enhancement under U.S.S.G. § 2K2.1
(b)(3) (2003) because the offense involved a "destructive device,"
resulting in a total offense level of 22. The PSR also determined
that McCarty had a criminal history category of I.
McCarty raised seven objections to the PSR, among them
that the application of the § 2K2.1(b)(3) enhancement constituted
impermissible double counting, and that in any case, he did not
qualify for the enhancement because he did not possess a
"destructive device." The court denied the objections and applied
the § 2K2.1(b)(3) enhancement. The court then applied a three-
level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1
(2003), resulting in a total offense level of 19, which translates
to a recommended Sentencing Guidelines range of thirty to thirty-
seven months in prison. The court sentenced McCarty to thirty-six
months in prison on each count, to be served concurrently, followed
by three years of supervised release.
4
The district court chose to apply the Sentencing Guidelines as
they existed prior to the November 1, 2004 amendments because they
would result in a more lenient sentence for McCarty and because of
ex post facto concerns. Neither McCarty nor the Government appeals
this decision, and we do not disturb it on appeal.
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II. Discussion
A. Motion to Suppress Evidence Collected at McCarty's Apartment
McCarty contends that the district court should have
suppressed the evidence collected by the police at his apartment on
July 10, 2004, because the search warrant obtained by police stated
that it could only be executed between 7:00 A.M. and 9:00 P.M., and
police remained at his apartment until 10:35 P.M. We review a
district court's decision to deny a motion to suppress de novo as
to legal conclusions and for clear error as to factual findings.
United States v. Vongkaysone, 434 F.3d 68, 73 (1st Cir. 2006).
The Fourth Amendment prohibits "unreasonable searches and
seizures." Even a search conducted pursuant to a warrant may be
"unreasonable" given the manner in which the search has been
conducted. See, e.g., United States v. Ramírez, 523 U.S. 65, 71
(1998) ("Excessive or unnecessary destruction of property in the
course of a search may violate the Fourth Amendment, even though
the entry itself is lawful."); cf. United States v. Young, 877 F.2d
1099, 1105 (1st Cir. 1989) ("[Nothing] forbids continuing a search
at night, at least when doing so is reasonable.").
McCarty complains that the search of his apartment was
unreasonable because it was conducted, in part, at night, whereas
the warrant authorizing the search stated that the search could
only be executed during the daytime. McCarty's concern about
nighttime searches is not unprecedented, see, e.g., Jones v. United
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States, 357 U.S. 493, 498-99 (1958) ("[I]t is difficult to imagine
a more severe invasion of privacy than the nighttime intrusion into
a private home that occurred in this instance."), but nighttime
searches are not per se unreasonable; rather, we apply a
traditional reasonableness test to the search. Young, 877 F.2d at
1105.
In this case, the search warrant provided that nighttime
began at 9:00 P.M. See also Me. R. Crim. P. 41(h) ("[A] warrant
shall direct that it be executed between the hours of 7 a.m. and 9
p.m. unless the judge or justice of the peace . . . authorizes its
execution at another time.").5 The search warrant team gained
entry to the apartment at 8:57 P.M. and began its search at 8:58
P.M. Thus, even though they were cutting it very close, the police
did in fact commence the search during "daytime" as defined by the
warrant. The search continued until 10:35 P.M., but we have held
that a search which began during the daytime but which continued
through the nighttime is not necessarily unreasonable. Young, 877
F.2d at 1104-05; see also State v. Sargent, 875 A.2d 125, 127-28
(Me. 2005) (finding no grounds for suppression where a search began
5
The Government argues that federal law should govern the
question of whether a search warrant has been executed during the
nighttime, and points out that Fed. R. Crim. P. 41(a)(2)(B) defines
nighttime as beginning at 10:00 P.M. Because we find that the
search was reasonable if nighttime begins at 9:00 (as defined by
Maine law), the search must also be reasonable if nighttime begins
at 10:00 (as defined by federal law), and thus we need not reach
this issue. We express no opinion as to whether state law or
federal law would control in these circumstances.
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before 9:00 P.M. but concluded at 11:00 P.M.). In fact, the search
of McCarty's apartment was significantly less intrusive than the
valid search conducted in Young, which began in the morning, and
continued throughout the night and for two additional days. 877
F.2d at 1104.
Furthermore, we have stated that:
[i]n considering the question of
reasonableness [of a search], a court must
assess the totality of the circumstances,
including "the scope of the particular
intrusion, the manner in which it is
conducted, the justification for initiating
it, and the place in which it is conducted."
United States v. Cofield, 391 F.3d 334, 336 (1st Cir. 2004). Here,
there is no evidence that McCarty was roused from his sleep, or
that the search was particularly intrusive. To the contrary, when
the search team knocked on the door, McCarty's roommate opened it,
and the police found McCarty standing awake in his living room.
McCarty was allowed a considerable degree of freedom during the
search, which by all accounts was conducted in a very professional
manner. Finally, there is no dispute that the search was well-
justified given the report of weapons and drugs by McCarty's ex-
girlfriend.
Thus, we conclude that the search of McCarty's apartment
was reasonable, and that the district court was correct to have
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denied McCarty's motion to suppress the evidence collected from his
apartment.6
B. Motion To Suppress McCarty's Statements
McCarty argues that his statements to the police and the
BATF should be suppressed because they were obtained in violation
of Miranda v. Arizona, 384 U.S. 436 (1966). We review the district
court's denial of McCarty's motion to suppress de novo as to legal
conclusions and for clear error as to factual findings. United
States v. Rojas-Tapia, 446 F.3d 1, 3 (1st Cir. 2006).
In Miranda, the Court held that prior to interrogating a
suspect who is in custody, that suspect must be advised of certain
rights in order to protect his or her Fifth Amendment right against
self-incrimination. 384 U.S. at 467-68. Thus, in order to claim
a Miranda violation, a suspect must be in custody, Pasdon v. City
of Peabody, 417 F.3d 225, 227 (1st Cir. 2005), and the suspect must
have been interrogated, Caputo v. Nelson, 455 F.3d 45, 49-50 (1st
Cir. 2006).
McCarty made the first set of statements that he claims
should be suppressed while he was handcuffed. As such, there can
be no question that McCarty made those statements while he was in
custody. See New York v. Quarles, 467 U.S. 649, 655 (1984)
6
Because we conclude that the search was reasonable, we see no
need to reach the constitutional issue of what remedy we might
apply to an unreasonable search in the wake of Hudson v. Michigan,
126 S. Ct. 2159 (2006) (declining to apply the exclusionary rule to
a violation of the knock-and-announce requirement).
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(finding that a suspect was in custody because he "was surrounded
by at least four police officers and was handcuffed when the
questioning at issue took place"). Thus, we must determine whether
an "interrogation" occurred. An interrogation occurs when there is
"express questioning, . . . [or] any words or actions on the part
of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response." Rhode Island v. Innis, 446 U.S.
291, 301 (1980). The facts of this case are similar to those in
United States v. Genao, where we found that no interrogation
occurred when an officer showed a suspect drugs and guns seized
from the suspect's house and the suspect blurted out an inculpatory
statement. 281 F.3d 305, 308, 310 (1st Cir. 2002). Likewise, in
the present case, Officer Goss "revealed and inspected the shotgun
in [McCarty's] immediate presence."7 Appellant's Br. at 23. After
seeing the shotgun, McCarty blurted out that the gun was a
"peacemaker" and began to tell Goss about its origins. We find
that Goss' removal of the gun from behind the couch was not
interrogation, and accordingly, there can be no Miranda violation.
Similarly, the second set of statements that McCarty
claims should be suppressed were not the product of interrogation.
Like the first set of statements, the police did not direct any
7
Revealing the shotgun in McCarty's presence does not appear to
have been Goss' plan; rather, the shotgun happened to be discovered
behind the couch on which McCarty was seated.
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questions to McCarty; rather, Goss simply showed the gun to Agent
McSweyn, who proceeded to measure the gun in McCarty's presence.
McCarty then told the officers, unprompted, that the gun was his.
Given Goss' uncontradicted testimony that neither he nor McSweyn
cast so much as an inquiring glance at McCarty, we find that
McCarty's unsolicited statement was not the product of
interrogation, and thus there was no Miranda violation.
The third set of statements presents a different
question. While police were concluding the search, Agent McSweyn
asked McCarty questions about the origins and ownership of the
shotgun. There is little debate that these questions were designed
to elicit a response, and as such, they constitute interrogation.
Innis, 446 U.S. at 301. However, before finding a Miranda
violation, we must determine whether McCarty was "in custody."
Pasdon, 417 F.3d at 227. In order to determine whether McCarty was
in custody, we look to see if "there is a 'formal arrest or
restraint on freedom of movement' of the degree associated with a
formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983).
When McSweyn began to question McCarty, McCarty was no longer
handcuffed. Although Agent McSweyn and one additional police
officer remained in McCarty's presence, McSweyn explained to
McCarty that he was not under arrest, that he was free to leave at
any time, and that he did not have to answer any questions. It is
clear that there was no arrest here and we conclude that this does
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not constitute a "restraint on freedom of movement" that would
normally be associated with an arrest. See Podlaski v.
Butterworth, 677 F.2d 8, 9 (1st Cir. 1982) (finding that a suspect
was not in custody where "the defendant [was not] told he was under
arrest; . . . was in a home familiar to him; . . . [and] police
activity was consistent with investigatory questioning").
Accordingly, because McCarty was not in custody while being
questioned by McSweyn, there was no violation of Miranda. Because
we have found no Miranda violations, the district court did not err
in denying McCarty's motion to suppress.
C. Application of U.S.S.G. § 2K2.1(b)(3)
McCarty's final salvo is that the district court
incorrectly calculated his total offense level under the Sentencing
Guidelines when it included the § 2K2.1(b)(3) enhancement for a
"destructive device." Although the Sentencing Guidelines are now
advisory rather than mandatory, see United States v. Booker, 543
U.S. 220, 245-46 (2005), we continue to emphasize their importance
in sentencing decisions and require courts to correctly perform
Guidelines calculations. United States v. Jiménez-Beltre, 440 F.3d
514, 518 (1st Cir. 2006) ("In most cases, this will mean that the
district court will have to calculate the applicable guidelines
range including the resolution of any factual or legal disputes
necessary to that calculation . . . ."). We review Guidelines
calculations de novo as to legal conclusions, and for clear error
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as to the sentencing court's factual findings. United States v.
Robinson, 433 F.3d 31, 35, 38 (1st Cir. 2005).
McCarty first argues that the application of the § 2K2.1
(b)(3) enhancement is impermissible because it constitutes double
counting, inasmuch as both the enhancement and the calculation of
the base offense level, § 2K2.1(a)(4)(B), are based on his
possession of a sawed-off shotgun. We have often said that double
counting is "less sinister than the name implies." See, e.g.,
United States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994) (quoting
United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993)). This is
because two (or more) guidelines will often rely on the same
underlying facts, although accounting for different sentencing
concerns. See, e.g., United States v. Wallace, 461 F.3d 15, 36
(1st Cir. 2006) (applying § 2K2.1(a)(4)(B) to account for unlawful
possession of a weapon and § 5K2.6 to account for the way in which
the weapon was used). Thus, when
neither an explicit prohibition against double
counting nor a compelling basis for implying
such a prohibition exists, clearly indicated
adjustments for seriousness of the offense and
for offender conduct can both be imposed,
notwithstanding that the adjustments derive in
some measure from a common nucleus of
operative facts.
Lilly, 13 F.3d at 20.
Here, there is no explicit prohibition against double
counting; to the contrary, U.S.S.G. § 2K2.1 cmt. n.11 (2003)
explicitly states: "A defendant whose offense involves a
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destructive device receives both the base offense level from the
subsection applicable to a firearm listed in 26 U.S.C. § 5845(a)
(e.g., subsection . . . (a)(4)(B)), and a two level enhancement
under subsection (b)(3)." Nor is there a compelling basis for
implying such a prohibition. Whereas the sentencing guideline for
the base offense, § 2K2.1(a)(4)(B), covers the wide range of
weapons found in 26 U.S.C. § 5845(a), the § 2K2.1(b)(3) enhancement
is intended to provide harsher punishment for destructive devices,
a narrower set of more dangerous weapons. See § 2K2.1 cmt. n. 11
("Such [destructive] devices pose a considerably greater risk to
the public welfare than other National Firearms Act weapons.").
For example, possession of a silencer might qualify a defendant for
the § 2K2.1(a)(4)(B) base offense level because a silencer is
listed as a firearm in 26 U.S.C. § 5845(a), but would not qualify
the defendant for the § 2K2.1(b)(3) enhancement because a silencer
is not a "destructive device." See 26 U.S.C. § 5845(f) (defining
destructive devices). Thus, because the guidelines for the base
offense and the enhancement account for different sentencing
concerns, we see no double-counting problem with using both
guidelines to calculate McCarty's total offense level.
McCarty also argues that the weapon he possessed did not
qualify as a destructive device. McCarty was found to possess a
shotgun with a barrel length of eleven inches, a barrel diameter of
over one-half inch, and an overall length of twenty-four inches.
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26 U.S.C. § 5845(f) includes in the definition of a destructive
device:
any type of weapon by whatever name known
which will, or which may be readily converted
to, expel a projectile by the action of an
explosive or other propellant, the barrel or
barrels of which have a bore of more than
one-half inch in diameter, except a shotgun or
shotgun shell which the Secretary finds is
generally recognized as particularly suitable
for sporting purposes.
McCarty suggests that this subsection excludes all shotguns from
the definition of a destructive device. McCarty is clearly wrong,
as § 5845(f) specifically defines a destructive device as a device
with a barrel in excess of one half inch and which expels
projectiles, which is an accurate description of the sawed-off
shotgun he possessed. Furthermore, § 5845(f) specifically
excludes from the definition of a destructive device a "shotgun or
shotgun shell which the Secretary [of the Treasury] finds is
generally recognized as particularly suitable for sporting
purposes." (emphasis added). The phrase "which the Secretary
finds" logically modifies "shotgun or shotgun shell." Thus,
§ 5845(f) excludes from the definition of destructive device only
those shotguns the Secretary finds suitable for sporting purposes,
and implies that other shotguns are considered destructive devices.
McCarty also contends that his shotgun is suitable for
sporting purposes, and thus cannot be a destructive device.
However, the relevant question here, according to § 5845(f), is
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whether the Secretary of the Treasury has found that a shotgun is
suitable for sporting purposes. The Government avers that the
Secretary of the Treasury has not recognized sawed-off shotguns as
"useful for sporting purposes," and McCarty has offered no evidence
to the contrary.8 The Secretary's decision to not recognize sawed-
off shotguns as suitable for sporting purposes has ample support;
courts have found that sawed-off shotguns, such as the one
possessed by McCarty, "lack usefulness except for violent and
criminal purposes," United States v. Fortes, 141 F.3d 1, 8 n.3 (1st
Cir. 1998), and that they "hinder[] rather than aid[], the
precision involved in sport shooting," United States v. Linson, 276
F.3d 1017, 1019 (8th Cir. 2002).
Finally, McCarty notes that § 5845(f) excludes from the
definition of a destructive device a firearm "which is . . . an
antique." McCarty claims that his gun was an antique, and that the
Government has failed to rebut this assertion. However, McCarty
pled guilty to a violation of 26 U.S.C. § 5861(d), which required
8
We see no merit to McCarty's claim that "to make a judicial
determination in the place of the Secretary regarding the
suitability of a shotgun for sporting purposes would violate the
separation of powers doctrine." Appellant's Br. at 26. We note
that § 5845(f) does not state that it allows all shotguns for
sporting purposes except for those prohibited by the Secretary.
Rather, § 5845(f) prohibits any destructive device except for those
shotguns allowed by the Secretary for sporting purposes. Thus, in
the present case, we are not substituting our judgment for that of
the Secretary, we are merely noting that he has not acted pursuant
to his authority to deem the type of shotgun possessed by McCarty
as suitable for sporting purposes.
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him to have possessed a firearm, as defined by 26 U.S.C. § 5845(a).
Section 5845(a) defines a firearm as including a "shotgun having a
barrel or barrels of less than 18 inches in length," but excludes
an "antique firearm." Thus, by pleading guilty to possessing a
firearm as defined in § 5845(a), McCarty pled guilty to possessing
a weapon which was, by definition, not an "antique firearm."
Accordingly, the district court properly concluded that for
sentencing purposes, the weapon that McCarty possessed was not an
antique firearm. We conclude that because the weapon that McCarty
possessed was a destructive device as defined in § 5845(f), the
court properly applied the two-level enhancement under U.S.S.G.
§ 2K2.1(b)(3) (2003).
III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
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