United States v. Battle

United States Court of Appeals
For the First Circuit

No. 10-1058

UNITED STATES OF AMERICA,

Appellee,

v.

MALDEN O. BATTLE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

Jon R. Maddox, by Appointment of the Court, for appellant.
Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief for appellee.

March 3, 2011

*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 STAHL, Circuit Judge. Defendant-appellant Malden O.

Battle was charged with two counts of being a felon in possession

of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1)

and one count of possession of cocaine with intent to distribute in

violation of 21 U.S.C. § 841(a)(1). Battle moved to suppress the

evidence supporting the charges, which was seized pursuant to a

warrantless entry into the apartment of his ex-girlfriend and a

subsequent search occurring after a warrant was obtained. After a

two-day evidentiary hearing, the district court denied the motion.

Thereafter, Battle entered a guilty plea, reserving his right to

appeal the denial of his motion to suppress. He was then sentenced

to a seventy-six month term of imprisonment followed by three

years' supervised release. Battle instituted the instant appeal

based on his reserved challenge and the sentence imposed by the

district court. We affirm.

I. Background

In reviewing the denial of a motion to suppress, we

recount the facts "'as the trial court found them, consistent with

record support.'" United States v. Andrade, 551 F.3d 103, 106 (1st

Cir. 2008) (quoting United States v. Lee, 317 F.3d 26, 30 (1st Cir.

2003)).

On August 21, 2004, Odemira Rosa visited the Dorchester,

Massachusetts apartment of his sometime girlfriend, Helena Fonseca.

Rosa is the father of Fonseca's son, and although he lived

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elsewhere, he paid the rent for Fonseca's apartment, had his own

key, enjoyed unlimited access to the unit, and spent significant

time there. In the summer of 2004, Rosa and Fonseca were on a

break in their relationship, and Fonseca and Battle briefly became

involved romantically. Battle would occasionally stay with

Fonseca, which was the case on August 21, when Rosa visited the

apartment and discovered Battle and Fonseca together inside. Upon

Rosa's entry, Battle confronted Rosa with a gun, and Rosa quickly

left the apartment.

This armed encounter precipitated the end of the one-

month relationship between Battle and Fonseca, and Fonseca told

Battle to leave her house and not come back. Battle, however,

continued to call Fonseca, which frightened her, and so Fonseca and

her children temporarily moved in with Rosa.

On September 1, 2004, Rosa visited Fonseca's apartment to

ensure that Battle had vacated the premises. Although Rosa did not

find Battle at the apartment, he did discover various items

belonging to Battle, including a gun in a black bag in the closet.

The following morning, on September 2, 2004, Rosa went to

the Dorchester police station and told Police Officer John Teixeira

and Sergeant Detective Paul Donovan about the August 21 incident

and the discovery of the gun in the closet. Rosa explained to the

officers that although the apartment was in Fonseca's name, Rosa

paid the rent and had a key and unlimited access to it.

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 The police accepted Rosa's invitation to visit the

apartment, and at approximately 10:30 a.m., Rosa brought Donovan,

Teixeira, and six other officers to Fonseca's building. He used

his key to usher them inside and waited one floor below Fonseca's

unit while the police knocked on the apartment door. Battle opened

the door and stepped out into the hallway, claiming that he had his

girlfriend's permission to be present. Some officers entered the

apartment and conducted a "protective sweep," but they found

nothing. Battle called Fonseca, and when he told her that the

police were in her apartment she asked, "What are you doing at my

house? I don't want you at my house . . . . I didn't tell you you

could go to my house." The officers instructed Fonseca to return

home.

The officers and Battle then entered the apartment. One

officer read Battle his Miranda rights while Battle sat on the

living room couch. Battle identified himself and told the officers

that he was in the process of moving out. After he called his

attorney, he stated that he did not want to answer any more

questions. The officers ceased questioning Battle, but they asked

him to leave the apartment so that they could "freeze" it while

they obtained a search warrant.

As Battle stood up from the couch to leave, an officer

noticed and retrieved a gun located on the floor beneath the couch.

When Fonseca arrived back at the apartment, she identified the gun

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as belonging to Battle, having seen him with the weapon on prior

occasions. The police then arrested Battle and brought him to the

station.

Later that day, the officers obtained a search warrant

using an affidavit that referenced the gun found underneath the

couch. After searching the apartment and Battle's car, the

officers discovered another gun, ballistics vests, boxes of

ammunition, a bag containing three small bags of cocaine, $2982 in

U.S. currency, various clothes, Battle's personal papers and

photographs, and receipts in both Battle's and Fonseca's names.

Battle moved to suppress all of the items seized from the

apartment and car, and the district court denied the motion. It

held that Battle did not have a legitimate expectation of privacy

in Fonseca's apartment and therefore lacked standing1 to invoke the

Fourth Amendment's protections. It also held that even if Battle

could assert his claim, the claim failed because the police

obtained valid third-party consent from Rosa to enter the

apartment, and the discovery of the gun, which led to the discovery

1
"'It is well-settled that a defendant who fails to
demonstrate a legitimate expectation of privacy in the area
searched or the item seized will not have 'standing' to claim that
an illegal search or seizure occurred.'" United States v. Rheault,
561 F.3d 55, 58 n.8 (1st Cir. 2009) (quoting United States v.
Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008)). We
acknowledge, however, that this threshold inquiry is "more properly
placed within the purview of substantive Fourth Amendment law than
within that of standing." Rakas v. Illinois, 439 U.S. 128, 140
(1978); Rheault, 561 F.3d at 58 n.8; see also United States v.
Rodriguez-Lozada, 558 F.3d 29, 37 (1st Cir. 2009).

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of the other items seized, was justified by the "plain view"

doctrine.

Battle pled guilty to the indictment and was sentenced to

seventy-six months' imprisonment followed by three years'

supervised release. The district court calculated the sentence

based on a total offense level of twenty-one and a criminal history

category of V, which under the United States Sentencing Guidelines

("Guidelines" or "U.S.S.G.") provided for a seventy to eighty-seven

month prison term.

II. Analysis

A. Motion to Suppress

In reviewing a motion to suppress, we review legal

determinations de novo and findings of fact and credibility

determinations for clear error. United States v. Dubose, 579 F.3d

117, 120 (1st Cir. 2009) (citing Andrade, 551 F.3d at 109). We

will uphold the denial of a motion to suppress as long as any

reasonable view of the evidence supports it. United States v.

Gonzalez, 609 F.3d 13, 18 (1st Cir. 2010).

Battle contends that he had a legitimate expectation of

privacy in Fonseca's apartment enabling him to assert his Fourth

Amendment challenge, and that his rights were violated as a result

of the warrantless entry that led to the seizure of evidence. He

claims that his expectation of privacy was reasonable because of

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his prior relationship with Fonseca.2 As to the warrantless entry,

he argues that Rosa did not have actual or implied authority to

consent to the police entry, that any implied consent was trumped

by Battle's actual refusal to consent, and that the gun found

underneath the couch was not in plain view. He claims, therefore,

that the seizure of the gun was unlawful and that the subsequent

items found were inadmissible.

We dispose of Battle's Fourth Amendment challenge because

we find he lacked a legitimate expectation of privacy to assert it.

The Fourth Amendment provides that "[t]he right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated." U.S.

Const. amend. IV. To prevail on a claim that a search or seizure

violated the Fourth Amendment, a defendant must show as a threshold

matter that he had a legitimate expectation of privacy in the place

or item searched. Minnesota v. Olson, 495 U.S. 91, 95 (1990). The

inquiry involves a two-part test: first, whether the defendant had

2
In his appellate brief, Battle also asserted that he has
standing to challenge the evidence seized pursuant to Article 14 of
the Massachusetts Declaration of Rights, the Commonwealth's analog
to the Fourth Amendment. Massachusetts has interpreted this
provision to provide a defendant with automatic standing to contest
the legality of a search and seizure when a defendant is charged
with a crime in which possession of the seized evidence at the time
of the search is an essential element of guilt. Commonwealth v.
Frazier, 571 N.E.2d 1356, 1360-61 (Mass. 1991). Although the
Massachusetts state constitution grants automatic standing, the
Supreme Court abandoned the principle for Fourth Amendment
purposes. United States v. Salvucci, 448 U.S. 83 (1980). Battle
withdrew his automatic standing claim at oral argument.

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an actual, subjective, expectation of privacy; and second, whether

that expectation "is one that society is prepared to recognize as

objectively reasonable." United States v. Rheault, 561 F.3d 55, 59

(1st Cir. 2009) (citing Smith v. Maryland, 442 U.S. 735, 740-41

(1979)).

A defendant may have a legally sufficient interest in a

place other than his own home, such as in the home of a host who

welcomes the defendant as an overnight guest. Olson, 495 U.S. at

98-100. A defendant lacks a legitimate expectation of privacy in

a place, however, when he does not have permission to be present.

See United States v. McCarthy, 77 F.3d 522, 535 (1st Cir. 1996)

(finding no legitimate expectation of privacy because defendant

left items in a trailer after the trailer's owner told defendant to

leave); United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987)

(finding no legitimate expectation of privacy in hotel room after

hotel guest failed to pay room bill), cited with approval in

McCarthy, 77 F.3d at 535; see also United States v. Lnu, 544 F.3d

361, 366 (1st Cir. 2008) (finding no legitimate expectation of

privacy in storage locker because defendant failed to pay rent and

facility operator had removed lock and imposed a lien on contents);

United States v. Melucci, 888 F.2d 200, 202 (1st Cir. 1989)

(finding no legitimate expectation of privacy in storage locker

because defendant failed to pay rent and facility operator removed

lock); cf. Olson, 495 U.S. at 99 (commenting that an overnight

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guest may have a legitimate expectation of privacy because "[t]he

houseguest is there with the permission of his host, who is willing

to share his house and his privacy with his guest").

Here, although Battle may have exhibited a subjective

expectation of privacy in Fonseca's apartment, that expectation was

objectively unreasonable because Battle did not have permission to

be present. The district court found that on August 21, 2004,

after the armed encounter with Rosa, Fonseca told Battle to leave

her apartment and not come back. On September 2, 2004, when Battle

called Fonseca and told her that the police were in her apartment,

she asked Battle what he was doing at her house since he did not

have permission to be there. On the day of the search, Battle was

no longer a welcomed guest in Fonseca's apartment, but instead was

a trespasser who stayed beyond his permitted visit. As such, he no

longer had a legally sufficient interest in the apartment to mount

a Fourth Amendment challenge.

Battle does not contest that Fonseca revoked his

permission to be present, but he urges that "a lover sent packing

is entitled to a somewhat longer checkout time." He claims that

because he still had personal items in the unit and was in the

process of moving out, Fonseca's revocation twelve days prior to

the search was not immediately effective. We do not understand

this to be a reasonable expectation of privacy that society is

prepared to recognize. The facts demonstrate that Battle had been

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at most an occasional overnight guest during his one-month

relationship with Fonseca, Fonseca clearly told Battle to vacate

her home, and Fonseca feared Battle's return to the point where she

temporarily moved out of her apartment. Such circumstances

demonstrate that any subjective expectation of privacy that Battle

believed he had was objectively unreasonable. Cf. Rheault, 561

F.3d at 61 (affirming denial of motion to suppress because

defendant's subjective expectation was unreasonable).

Battle also highlights that during his month-long

relationship with Fonseca he had a key and at times stayed at her

apartment, he kept personal items at her place, and he contributed

to her subsidized rent. Such facts were not found by the district

court and are unsupported by the record, which demonstrates that

Battle was lent a key once, never moved into the apartment, was to

take his belongings with him each time he left, and was repaid the

$100 borrowed for rent. Further, to the extent that Battle enjoyed

certain privileges while he dated Fonseca, those privileges were

revoked on August 21, 2004, twelve days prior to the search, when

Fonseca ordered Battle out of her home. Without a legitimate

expectation of privacy in the apartment, Battle's Fourth Amendment

claim fails.

B. Sentencing

Battle argues next that his sentence of seventy-six

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months' imprisonment is unreasonable.3 The pre-sentence report, to

which neither side objected, calculated Battle's Guidelines range

to be seventy to eighty-seven months based on a total offense level

of twenty-one and a criminal history category of V. Criminal

history category V embraces defendants with ten to twelve criminal

history points, and Battle scored an eleven. Battle's points were

based on prior convictions for: (1) possession of marijuana (one

point), (2) possession of crack cocaine (two points), (3) domestic

assault and battery (two points), and (4) felon in possession of a

firearm (three points). The pre-sentence report added two points

because the instant offenses were committed while Battle was on

supervised release for the prior firearm offense, and one more

point because the offenses were committed less than two years after

Battle's release from imprisonment. See U.S.S.G. § 4A1.1(d), (e).

On appeal, Battle argues that the district court should

have departed downward from the Guidelines range pursuant to

U.S.S.G. § 4A1.3(b)(1), which allows for a downward departure if a

defendant's criminal history category significantly over-represents

3
At Battle's sentencing, the district court sentenced Battle
both on his instant offenses and for the derivative offense of
violating the terms of his supervised release; he had been
subsequently charged with the supervised release violation. Battle
stipulated that he violated the terms of his supervised release by
committing the instant offenses and agreed to an aggregate sentence
for both matters. The district court sentenced Battle to seventy-
six months' imprisonment for each of the instant offenses, to run
concurrently, and time served on the supervised release violation.
The supervised release violation is not at issue on appeal.

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the seriousness of his criminal history.4 He states that the one

point assigned to his marijuana offense was in error, and that the

district court should have found excessive the two points for his

cocaine conviction because it occurred over twelve years earlier.

The subtraction of these three criminal history points would

position Battle in criminal history category IV, providing a range

of fifty-seven to seventy-one months. Battle also attacks the

substantive reasonableness of his sentence, arguing that the

sentence failed to adequately account for his troubled personal

circumstances and his overstated criminal history, and that had the

one point for the marijuana offense been omitted, the district

court would have been more sympathetic to his claim for leniency.

This court reviews the reasonableness of a sentence

"under a deferential abuse-of-discretion standard." Gall v. United

States, 552 U.S. 38, 41 (2007). We determine first whether the

district court made any procedural errors, "'such as failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the 18

U.S.C. § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

4
United States Sentencing Guideline § 4A1.3(b)(1) reads: "If
reliable information indicates that the defendant's criminal
history category substantially over-represents the seriousness of
the defendant's criminal history or the likelihood that the
defendant will commit other crimes, a downward departure may be
warranted."

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sentence - including an explanation for any deviation from the

Guidelines range.'" United States v. Politano, 522 F.3d 69, 72

(1st Cir. 2008) (internal marks omitted) (quoting Gall, 552 U.S. at

51). Next we evaluate the substantive reasonableness of the

sentence imposed. Id. We consider the totality of the

circumstances and give due deference to the district court. See

Gall, 552 U.S. at 51; United States v. Wallace, 573 F.3d 82, 97

(1st Cir. 2009). Although we evaluate the reasonableness of a

sentence even when it falls within the Guidelines, "a defendant who

attempts to brand a within-the-range sentence as unreasonable must

carry a heavy burden." United States v. Pelletier, 469 F.3d 194,

204 (1st Cir. 2006). A sentence will stand so long as there is "a

plausible sentencing rationale and a defensible result." United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

Here, the sentence is both procedurally and substantively

sound. First, Battle's argument concerning the criminal history

point for the marijuana offense is a dead end. The government

posits that the court should review this claim for plain error

because it was not presented to the district court.5 No matter

5
At the district court level, Battle admitted to the
correctness of the pre-sentence report and argued only that he
should be granted a downward departure and placed in criminal
history category IV on equitable grounds. On appeal, Battle makes
a different argument, asserting that the point inclusion for the
marijuana offense was a calculation error under
U.S.S.G. § 4A1.2(c)(2), which states that sentences for specified
prior offenses "and offenses similar to them . . . are never
counted" for purposes of criminal history. Listed noncountable

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what level of review we accord this claim, however, it fails.

Battle scored eleven criminal history points, and the subtraction

of the one point would not have altered his criminal history

category, which applies to defendants with ten to twelve criminal

history points. Accordingly, Battle's Guidelines range would be

unchanged, and any potential error was harmless. See United States

v. Gerhard, 615 F.3d 7, 34 (1st Cir. 2010) (bypassing merits of

sentencing calculation claim because any error would not impact the

Guidelines range); United States v. Caldwell, 358 F.3d 138, 143

(1st Cir. 2004) (rejecting defendant's claim that he was improperly

scored an extra criminal history point because "any error in the

district court's calculation . . . was harmless"); see also United

States v. Matos, 611 F.3d 31, 40 (1st Cir. 2010) (applying plain

error review to claim that district court erred in calculating

criminal history points because defendant argued to the district

court only that the criminal history category generally overstated

the seriousness of his past); United States v. Rivera, 448 F.3d 82,

86 n.1 (1st Cir. 2006) (applying plain error review to unpreserved

calculation error claim and finding error harmless because any

error would not affect the sentencing range).

As to Battle's broader challenge that the district court

prior offenses include local ordinance violations and public
intoxication. U.S.S.G. § 4A1.2(c)(2). Battle argues that his
marijuana offense is similar to these two noncountable offenses
because Massachusetts has since decriminalized possession of small
amounts of marijuana.

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should have granted a downward departure in view of the marijuana

and cocaine offenses, we reject it. A district court's

discretionary decision not to depart from the Guidelines is

reviewed for reasonableness. United States v. Anonymous, 629 F.3d

68, 73-75 (1st Cir. 2010).6 Here, the district court met the

standard. It considered Battle's arguments but explained that a

departure was unwarranted because of Battle's criminal history, the

seriousness of his offenses, and the timing of their occurrence,

having been committed shortly after Battle was released from

custody. We find no abuse of discretion.

Lastly, the seventy-six-month sentence is substantively

reasonable. Although Battle argues that the district court did not

adequately account for his troubled childhood or overstated

criminal history, the record belies his claim. The district court

specifically acknowledged Battle's personal circumstances. It

noted his difficult past, applauded his current support system, and

6
Citing United States v. Meléndez-Torres, 420 F.3d 45, 50 (1st
Cir. 2005), the government argues that a district court's
discretionary refusal to depart is unreviewable unless the district
court based its decision on an error of law or a determination that
it lacked authority to depart. We recently clarified, however,
that our decision in Meléndez-Torres did not give full effect to
United States v. Booker, 543 U.S. 220 (2005), which obligates
federal appellate courts to review sentences for reasonableness.
Anonymous, 629 F.3d at 73-75. In United States v. Anonymous, we
held that virtually "all sentences imposed under the advisory
guidelines . . . are open to reasonableness review, including those
that entail either a discretionary refusal to depart or a departure
whose extent is contested." Id. at 74. We therefore review for
reasonableness the district court's decision not to depart from the
Guidelines.

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recognized his promise to learn from his mistakes. It found the

sentence a way "to push the reset button and start again," which it

believed Battle would be able to do. The district court stated

that since Battle had already served sixty-three months and would

be credited several additional months for good behavior, a shorter

sentence would not provide him with the time he needed to prepare

for release. With this in mind, it explained that Battle would

serve the first six months of his supervised release at a re-entry

center that would help him gain employment, find a place to live,

and receive any necessary treatment.

As to Battle's urge for leniency due to his allegedly

overstated criminal history, the court considered this possibility

and rejected it. It specifically commented that Battle may have

scored one point too high due to the marijuana offense, but

remarked that "really the criminal history is for all inten[ts]

and purposes the same if I took that out." It also explained that

the points assigned to Battle's prior gun offense, including the

points added because Battle had recently been in custody and was on

supervised release for that crime when the instant offenses

occurred, were not excessive in view of Battle's history with the

criminal justice system and the similarity of the prior offense to

the current ones. Overall, the court clearly articulated a

plausible explanation for its within-the-Guidelines sentence and

provided a defensible result.

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 III. Conclusion

For the foregoing reasons, we affirm the district court's

denial of Battle's motion to suppress and its sentencing decision.

So ordered.

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