United States v. Dorsey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30152
Plaintiff-Appellee,
v.  D.C. No.
CR-A03-0139-JKS
NIKOS DELANO DORSEY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief Judge, Presiding

Argued and Submitted
April 5, 2005—Seattle, Washington

Filed August 10, 2005

Before: William C. Canby, Jr., Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge Rawlinson

10297
 UNITED STATES v. DORSEY 10301
COUNSEL

Kevin F. McCoy, Assistant Federal Defender, Anchorage,
Alaska, for the defendant-appellant.

Jo Ann Farrington, Assistant United States Attorney, Anchor-
age, Alaska, for the plaintiff-appellee.

OPINION

TALLMAN, Circuit Judge:

Following a conditional guilty plea, Nikos Delano Dorsey
was convicted of possession of cocaine base with intent to
distribute, possession of a firearm during and in relation to a
drug trafficking offense, and possession of a firearm in a
school zone. He challenges his conviction and sentence. We
affirm his conviction and remand his sentence for consider-
ation in light of United States v. Booker, 125 S. Ct. 728
(2005), and United States v. Ameline, 409 F.3d 1073 (9th Cir.
2005).

I

The following description of the facts is drawn from the
record of the prior proceedings, particularly the magistrate
judge’s findings of fact which were adopted by the district
court.

A

The facts relevant to this appeal primarily took place on the
grounds of Bartlett High School in Anchorage, Alaska. On
September 2, 2003, while patrolling the school pursuant to a
Memorandum of Understanding between the Anchorage
Police Department and the school district, Officer Jason
Schmidt encountered Dorsey on school grounds.
10302 UNITED STATES v. DORSEY
Officer Schmidt approached Dorsey, who was wearing a
bandana and hat in violation of the school’s posted dress pol-
icy, and asked him to remove his headgear. Dorsey refused,
and a verbal confrontation between Dorsey and Officer
Schmidt ensued. Although Dorsey eventually complied with
Officer Schmidt’s direction regarding his headgear, during the
course of the dispute Dorsey told Officer Schmidt that he was
not a student. Officer Schmidt then instructed Dorsey to leave
the school campus. Dorsey initially refused to comply, but did
eventually leave the building.

Officer Schmidt followed Dorsey to his car, which was
parked in the fire lane outside of the school doors. Officer
Clinton Peck, who had overheard much of the foregoing,
joined him. They asked Dorsey to explain why he was at Bart-
lett. Dorsey replied that he wanted to pick up a student named
Staphon Livingood, but was unable to identify Livingood’s
age, grade, or anything else about him. Subsequent investiga-
tion confirmed that no student named Staphon Livingood
attended Bartlett High.

Officer Schmidt told Dorsey that he was not allowed on
school property if he had no legitimate business there, and
that if he did have legitimate business he needed to make
arrangements through the school ahead of time. The officers
warned Dorsey that if he returned to the property, he would
be arrested for trespass. The officers then alerted the school
staff to this incident. Assistant Principal Tina Johnson-Harris
approved the officers’ decision to ask Dorsey to leave, and
agreed that if Dorsey returned he should be treated as a tres-
passer.

B

Detective Nancy Potter reported to Officers Schmidt and
Peck that she had seen a car being driven recklessly around
the parking lot at the high school at the end of the school day
that same afternoon. Detective Potter’s description of the car
 UNITED STATES v. DORSEY 10303
and driver matched Dorsey. From Detective Potter’s descrip-
tion Officer Schmidt concluded that Dorsey had returned to
campus in violation of his prior warning.

At the end of the school day the next afternoon, Officers
Schmidt and Peck saw a car speeding erratically through one
of the school’s parking lots; the car looked similar to the car
Dorsey had driven the previous day. The officers pulled the
car over; Dorsey was the driver. Officer Schmidt asked Dor-
sey to step out of the car and, as Dorsey did so, Officer
Schmidt noticed the smell of marijuana and that Dorsey’s
eyes appeared bloodshot and watery. Officer Schmidt told
Dorsey that he was under arrest and conducted a protective
pat-down search. During the search, Dorsey pulled away from
Officer Schmidt, so Schmidt handcuffed Dorsey and put him
in the back of Officer Peck’s patrol car.

Meanwhile, Officer Peck told Dorsey that he was going to
move Dorsey’s car, which was blocking traffic. As he did so,
he noticed a strong marijuana smell inside Dorsey’s car when
moving it. After Dorsey had been placed in the back of Offi-
cer Peck’s car, Peck returned to Dorsey’s car and briefly
searched it. Officer Peck found money and cocaine base rocks
in the console and a Glock pistol between the console and the
seat. The officers then secured the car and transported Dorsey
to a police substation, where Drug Unit detectives interviewed
him.

C

Following the interview, the officers took Dorsey before a
state court magistrate where Dorsey was arraigned. At the
same time, the officers applied for a search warrant. The par-
ties dispute whether the officers were ever placed under oath.
The magistrate found that probable cause existed, and issued
the warrant.

Dorsey’s car was searched under the warrant. In between
the seat and the console officers found a 9-mm Glock semiau-
10304 UNITED STATES v. DORSEY
tomatic pistol with a loaded extended magazine and a jack-
eted hollow-point round in the chamber. Inside the console
they found a baggie with eight individually wrapped bindles
of crack cocaine, two more magazines, and about $400 in
cash.

D

A federal grand jury indicted Dorsey on three counts.
Count One charged him with possession of cocaine base with
intent to distribute. See 21 U.S.C. §§ 841(a)(1) and (b)(1)(C),
860. Count Two alleged possession of a firearm during and in
relation to and in furtherance of a federal drug trafficking
crime. See 18 U.S.C. § 924(c)(1)(A). Count Three charged
possession of a firearm in a school zone. See 18 U.S.C.
§§ 922(q)(2)(A), 924(a)(4).

Dorsey moved to suppress the evidence derived from his
arrest but the district court, relying on the magistrate judge’s
recommendation, found that the arrest was supported by prob-
able cause, that the initial search was incident to a lawful
arrest, and that the second search was either a lawful inven-
tory search or saved by the inevitable discovery doctrine. Dor-
sey also moved to dismiss the charge under the Gun-Free
School Zones Act, 18 U.S.C. § 922(q), arguing that the statute
exceeds the scope of Congress’s Commerce Clause power.
The district court denied Dorsey’s motion to dismiss.

Dorsey pled guilty to the indictment, preserving his right to
appeal. The district court determined the quantity of cocaine
in Dorsey’s possession. Dorsey was sentenced to a total of
ninety-eight months imprisonment — thirty-seven months for
Count One, sixty months for Count Two, and one month for
Count Three. This appeal followed.

II

Dorsey challenges his arrest, the search of his car, and the
admission of Detective Potter’s statement at his pretrial sup-
 UNITED STATES v. DORSEY 10305
pression hearing. Whether Dorsey’s arrest was supported by
probable cause is a mixed question of law and fact that we
review de novo. United States v. Nava, 363 F.3d 942, 944 (9th
Cir. 2004). We review the validity of a warrantless search de
novo, and the underlying factual findings for clear error.
United States v. Depew, 210 F.3d 1061, 1066 (9th Cir. 2000).
Alleged violations of the Confrontation Clause and the district
court’s interpretation of the hearsay rule are reviewed de
novo. United States v. Orellana-Blanco, 294 F.3d 1143, 1148
(9th Cir. 2002).

A

[1] An arrest is constitutionally valid if the arresting offi-
cers had probable cause to make the arrest. Beck v. Ohio, 379
U.S. 89, 91 (1964). Officers have probable cause to make an
arrest when:

at that moment the facts and circumstances within
their knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a
prudent man in believing that the petitioner had com-
mitted or was committing an offense.

Id. At the time that Dorsey was arrested for trespass, the offi-
cers knew that Dorsey had been warned not to come back to
campus without a legitimate purpose, that Dorsey’s previous
explanation of his purpose had been a lie, that Detective Pot-
ter had reported seeing Dorsey the previous afternoon after he
had been asked to leave, and that Dorsey was once again on
campus.

[2] These facts are sufficient to cause a prudent person to
believe that Dorsey had committed or was committing the
crime of trespass. In Alaska, a person commits trespass if he
“enters or remains unlawfully [ ] in or upon premises[.]”
Alaska Stat. § 11.46.330(a)(1). A person has entered or
remained unlawfully if he “fail[s] to leave premises . . . that
10306 UNITED STATES v. DORSEY
[are] open to the public after being lawfully directed to
do so personally by the person in charge[.]” Alaska Stat.
§ 11.46.350(a)(2). The Alaska Court of Appeals has inter-
preted this statute in the context of public property:

A person can not be convicted under AS
11.46.350(a)(2) of “fail[ing] to leave” a public facil-
ity “after being lawfully directed to do so” unless the
person fails to heed a reasonably contemporaneous
directive to leave, or . . . the person heeds the direc-
tive to leave but then returns to the public facility
after only a short while.

Turney v. State, 922 P.2d 283, 288 (Alaska Ct. App. 1996).1

[3] Officers Schmidt and Peck had probable cause to
believe that Dorsey had returned to Bartlett after receiving a
reasonably contemporaneous directive to leave. The officers
had personally directed Dorsey off of the property on Septem-
ber 2, 2003, so they knew that he had been told to leave.2
1
The events in Turney took place in a courthouse, which was clearly
open to the public. Bartlett welcomes the public in a more limited manner.
For example, it posts signs indicating that the grounds are closed at night
and directing daytime visitors to stop first at the school office. The school
district also has a policy denying access to those who do not have “a valid
reason for their presence” and warns that “[i]ndividuals who proceed on
the District property without proper authorization shall be treated as tres-
passers and shall be subject to prosecution under relevant state statutes
and/or municipal ordinances.” If trespass charges had been brought against
Dorsey, it is not clear that the court’s analysis would have mimicked that
in Turney, where the public’s access to the property at issue was less
restricted. However, because the officers had probable cause to arrest Dor-
sey even under the Turney analysis, we do not reach this potential distinc-
tion.
2
Dorsey argues that the officers were not “person[s] in charge” who
could direct him to leave under Alaska’s trespass statute. However, Offi-
cers Schmidt and Peck were at Bartlett as part of a Memorandum of
Understanding (MOU) between the school district and the police depart-
ment. The superintendent of the school district testified that at the time of
 UNITED STATES v. DORSEY 10307
They had reason to believe that he had returned within a time
period “reasonably contemporaneous” to the time they asked
Dorsey to leave because Detective Potter reported seeing
someone matching Dorsey’s description in the school parking
lot later in the day on September 2, 2003. For purposes of
establishing probable cause, the officers were justified in rely-
ing on Detective Potter’s report. See United States v. Matlock,
415 U.S. 164, 172-73 (1974). Furthermore, Officers Schmidt
and Peck personally observed Dorsey at Bartlett the day after
they had told him to leave.3

Although the state would need to prove that Dorsey had no
legitimate purpose on campus to convict Dorsey of trespass,
less is required to establish probable cause for his arrest. After

the events giving rise to this case, the police officers working in the dis-
trict’s schools under the MOU had the authority to arrest for trespass peo-
ple who did not have a legitimate purpose for being on school property.
This authority was clarified, but not altered, by subsequent amendments
to the MOU. These facts support the district court’s conclusion that Offi-
cers Schmidt and Peck were authorized to remove Dorsey from Bartlett as
a trespasser.
3
Alaska law is unclear as to whether a direction to leave the day prior
to an arrest is “reasonably contemporaneous.” Turney quotes a Louisiana
case which “deem[s] a request to be reasonably contemporaneous if given
a few hours prior to the arrest, the same day as the arrest[,] or such other
pre-arrest interval [as is] reasonable under the . . . circumstances of each
particular case.” 922 P.2d at 287 (quoting State v. Johnson, 381 So. 2d
498, 500 (La. 1980)). This reasonable “pre-arrest interval” probably does
not include a warning given several weeks prior to the arrest, as this was
the fact situation that the Turney opinion finds not to be trespass. Id. at
288. However, it is not clear where the line of what is “reasonably con-
temporaneous” falls between the same-day warning described in the quote
from the Louisiana case and the several-week interval rejected in Turney.
Because Detective Potter observed someone matching Dorsey’s descrip-
tion at Bartlett on the same day as Officer Schmidt and Peck asked Dorsey
to leave, we need not decide whether returning the day after a warning is
given creates probable cause to suspect trespass. There was probable cause
to believe he had violated the law on the same day he was told to leave.
When he came back again the next day, an arrest was surely justified.
10308 UNITED STATES v. DORSEY
Dorsey lied to the officers about his reason for being on cam-
pus (claiming to be picking up a fictitious student) the day
before his arrest, even if Dorsey had expressed a seemingly
legitimate purpose for once again being at Bartlett, the offi-
cers could have reasonably suspected him of trespass.

[4] Reasonably prudent officers in the arresting officers’
position could have concluded that Dorsey had previously
engaged in and was again committing trespass; the officers
had probable cause for Dorsey’s arrest. The district court cor-
rectly found that Dorsey’s warrantless arrest was supported by
probable cause.

B

[5] Because Dorsey’s arrest was supported by probable
cause, the search of Dorsey’s car was a lawful search incident
to arrest. New York v. Belton, 453 U.S. 454, 460-61 (1981)
(holding that an officer’s search of a vehicle pursuant to arrest
may lawfully include the entire vehicle, including containers
within the vehicle); Thorton v. United States, 541 U.S. 615,
124 S.Ct. 2127, 2131-32 (2004) (holding that even when a
defendant is not in the car when he is arrested, “it is reason-
able to allow officers to ensure their safety and to preserve
evidence by searching the entire passenger compartment”).
The district court properly ruled that Dorsey’s car was
searched lawfully incident to arrest.4

C

Dorsey contends that the admission of Detective Potter’s
reported sighting of him violated the Confrontation Clause
4
Dorsey argues that the search warrant pursuant to which his car was
searched was based on the unsworn statements of Officers Schmidt and
Peck and was therefore invalid. We do not reach this issue, because, as is
discussed above, the warrantless search of Dorsey’s car was lawful, thus
the search warrant was unnecessary.
 UNITED STATES v. DORSEY 10309
and the Federal Rules of Evidence (FRE) by allowing this
“hearsay” testimony at the suppression hearing.

[6] Detective Potter’s statement was not hearsay in this
context. Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” FRE
801(c). Potter’s statement was not hearsay here because it was
not offered to prove that Dorsey had returned to Bartlett on
September 2, 2003. If the testimony regarding Detective Pot-
ter’s statement had been offered for this purpose, perhaps in
a criminal trial charging Dorsey with trespass, it would have
been hearsay and most likely excluded. FRE 802.

[7] Instead, at the suppression hearing, Potter’s statement
was offered as evidence that Officers Schmidt and Peck had
probable cause to arrest Dorsey. The magistrate correctly
observed that Potter’s statement “was not received or consid-
ered for the truth of the matter as to whether Dorsey had in
fact trespassed since that ultimate issue would be decided by
a different forum.” Potter’s statement was offered to demon-
strate that the officers were reasonable in believing that a
crime had occurred; in that context, the statement was not
hearsay because it was not offered for the truth of the matter
asserted. Advisory Committee Notes to FRE 801 (“If the sig-
nificance of an offered statement lies solely in the fact that it
was made, no issue is raised as to the truth of anything
asserted, and the statement is not hearsay.”).

[8] No goal would have been served by requiring Detective
Potter to testify personally at the suppression hearing. There
was no contention that Potter had not made the statement, and
her credibility was not at issue because whether Dorsey had
actually returned to Bartlett when Potter said he did was
immaterial to the inquiry at issue in the suppression hearing.
Thus, because the truth of Detective Potter’s report was not
at issue, her statement was not hearsay. See Swirsky v. Carey,
376 F.3d 841, 852 (9th Cir. 2004) (holding that evidence was
10310 UNITED STATES v. DORSEY
not hearsay because it was not proffered for the truth of the
content of the evidence); Calmat Co. v. U.S. Dep’t of Labor,
364 F.3d 1117, 1124 (9th Cir. 2004) (same). We uphold the
ruling permitting testimony in the suppression hearing about
Detective Potter’s statement.

III

[9] We next consider the district court’s ruling on Dorsey’s
motion to dismiss Count Three of the indictment on the
ground that the Gun-Free School Zone statute on which it is
based, 18 U.S.C. § 922(q)(2)(A), is unconstitutional. It is now
a federal crime “knowingly to possess a firearm that has
moved in or that otherwise affects interstate or foreign com-
merce at a place the individual knows, or has reasonable
cause to believe, is a school zone.” 18 U.S.C. § 922(q)(2)(A).
Dorsey argues that this statute exceeds Congress’s power
under Art. I, § 8, cl. 3 of the United States Constitution (“the
Commerce Clause”). We review this constitutional question
de novo. United States v. McCoy, 323 F.3d 1114, 1117 (9th
Cir. 2003).

[10] In 1995, the Supreme Court found a prior version of
§ 922(q), also known as the “Gun-Free School Zones Act,”
unconstitutional. United States v. Lopez, 514 U.S. 549 (1995);
see Pub. L. No. 101-647, Title XVII, § 1702(b)(1), 104 Stat.
4789, 4844 (1990). The version of the statute at issue in Lopez
made it a federal offense “knowingly to possess a firearm at
a place that the individual knows, or has reason to believe, is
a school zone.” 514 U.S. at 551. The question is whether the
addition of the jurisdictional element, which requires that the
firearm “has moved in or [ ] otherwise affects interstate or
foreign commerce” repairs the constitutional shortfalls
announced in Lopez. See Pub. L. No. 104-208, Div. A, Title
I, § 101(f), 110 Stat. 3009-369, 3009-372 (1996) (amending
the Gun-Free School Zones Act of 1990).

[11] Incorporating a jurisdictional element into the offense
has traditionally saved statutes from Commerce Clause chal-
 UNITED STATES v. DORSEY 10311
lenges. See e.g., United States v. Bass, 404 U.S. 336 (1971).
In Bass, the Supreme Court considered whether the statutory
phrase “in commerce or affecting commerce” in a federal stat-
ute that imposed a penalty on any felon “who receives, pos-
sesses, or transports in commerce or affecting commerce . . .
any firearm” applied to “possesses” and “receives” as well as
“transports.” Id. at 337, 339. In large part to avoid the federal-
ism problems that would result from a broader construction,
the Court interpreted the “in commerce or affecting com-
merce” language to be part of the offense that the government
had to prove in each individual case. Id. at 349-50. Several
years later, the Court revisited the same statute and clarified
that the required nexus could be proven by demonstrating that
the firearm had previously traveled in interstate commerce;
the nexus did not need to be contemporaneous with the
offense. Scarborough v. United States, 431 U.S. 563, 575-77
(1977).

The Lopez decision did not alter this rule that a jurisdic-
tional element will bring a federal criminal statute within
Congress’s power under the Commerce Clause. In fact, Lopez
rejected § 922(q) in part because it did not follow Bass:

Unlike the statute in Bass, § 922(q) has no express
jurisdictional element which might limit its reach to
a discrete set of firearm possessions that additionally
have an explicit connection with or effect on inter-
state commerce.

Lopez, 514 U.S. at 562; see also United States v. Morrison,
529 U.S. 598, 613 (2000) (holding that the civil remedies in
42 U.S.C. § 13981 were beyond Congress’s power under the
Commerce Clause because, inter alia, “[l]ike the Gun-Free
School Zones Act at issue in Lopez, § 13981 contains no juris-
dictional element establishing that the federal cause of action
is in pursuance of Congress’[s] power to regulate interstate
commerce”).
10312 UNITED STATES v. DORSEY
[12] Contrary to the prior version of § 922(q) discussed in
Lopez, the current version includes a “requirement that [the
defendant’s] possession of the firearm have a[ ] concrete tie
to interstate commerce.” Lopez, 514 U.S. at 567. This new
version of § 922(q) resolves the shortcomings that the Lopez
Court found in the prior version of this statute because it
incorporates a “jurisdictional element which would ensure,
through case-by-case inquiry, that the firearm possession in
question affects interstate commerce.” Id. at 561. This juris-
dictional element saves § 922(q) from the infirmity that
defeated it in Lopez. See Morrison, 529 U.S. at 612 (“Such a
jurisdictional element may establish that the enactment is in
pursuance of Congress’ regulation of interstate commerce.”);
Scarborough, 431 U.S. at 575 (finding, with regard to an
unrelated statute, that Congress need only require “the mini-
mal nexus that the firearm have been, at some time, in inter-
state commerce” for the statute to be within Congress’s
Commerce Clause power).

[13] This holding follows circuit precedent on a closely
related statute, 18 U.S.C. § 922(g). See United States v. Davis,
242 F.3d 1162 (9th Cir. 2001) (per curiam); United States v.
Jones, 231 F.3d 508 (9th Cir. 2000); United States v. Polanco,
93 F.3d 555 (9th Cir. 1996); United States v. Hanna, 55 F.3d
1456 (9th Cir. 1995). Section 922(g) prohibits several catego-
ries of persons from possessing a firearm “in or affecting
interstate commerce” and from receiving a firearm that has
been “shipped or transported in interstate or foreign com-
merce.” 18 U.S.C. § 922(g). In each of the cases to consider
the issue, we have found that the jurisdictional element saves
§ 922 because it “insures, on a case-by-case basis, that a
defendant’s actions implicate interstate commerce to a consti-
tutionally adequate degree.” Polanco, 93 F.3d at 563; see also
Davis, 242 F.3d at 1162-63; Jones, 231 F.3d at 514-15;
Hanna, 55 F.3d at 1462.

[14] The Eighth Circuit reached the same conclusion
regarding § 922(g), and relied upon it to uphold the constitu-
 UNITED STATES v. DORSEY 10313
tionality of the amended § 922(q). United States v. Danks,
221 F.3d 1037, 1038-39 (8th Cir. 1999) (per curiam) (citing
United States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (per
curiam)). The Eighth Circuit concluded that because “section
922(q) contains language that ensures, on a case-by-case
basis, that the firearm in question affects interstate commerce
. . . the amended Act is a constitutional exercise of Congress’s
Commerce Clause power.” Danks, 221 F.3d at 1039.

[15] We agree with the Eighth Circuit’s decision in Danks,
and follow our own precedent regarding § 922(g), in similarly
resolving this issue. Dorsey’s motion to dismiss Count Three
of the indictment on the ground that 18 U.S.C. § 922(q) is not
a valid exercise of congressional power under the Commerce
Clause was properly denied.

IV

Dorsey finally challenges the sentencing court’s finding
that he had more than three grams of cocaine base in his pos-
session. Dorsey claims that this sentence violated his Sixth
Amendment rights under Blakely v. Washington, 124 S. Ct.
2531 (2004), because the weight of the cocaine base was
determined by the judge by preponderance of the evidence;
the weight was neither charged in the indictment or admitted
by the defendant in his plea. See id at 2537-38.

In an initial test of the crack cocaine seized from Dorsey’s
car, the cocaine weighed 3.088 grams. A subsequent measure-
ment indicated that the weight was 2.988 grams. At sentenc-
ing, the government presented testimony explaining that the
difference in weight was due to small amounts of cocaine
consumed in laboratory testing, small amounts clinging to the
packaging when drugs are removed, and water evaporating
from the suspect sample. Dorsey presented no contrary testi-
mony. The district court accepted the government’s explana-
tion, and sentenced Dorsey for possession of three or more
grams of crack cocaine.
10314 UNITED STATES v. DORSEY
[16] Dorsey concedes that he is raising this Sixth Amend-
ment challenge for the first time on appeal. Consequently, we
must review his sentence for plain error. See United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738, 769 (2005); United
States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005). He is
not entitled to relief unless his sentence amounts to plain
error, meaning that there is 1) error, 2) that is plain, and 3)
that affects substantial rights. Ameline, 408 F.3d at 1078.
Because it was given “in reliance upon judge-made findings
under the then-mandatory guidelines,” Dorsey’s sentence was
constitutional error and he satisfies the first two prongs of the
plain error test. Ameline, 409 F.3d at 1078.

[17] The next question is whether the error affected Dor-
sey’s substantial rights, i.e. “whether the outcome of [Dor-
sey’s] sentencing was affected by erroneous enhancement of
[Dorsey’s] sentence on the basis of judge-made findings in
the mandatory guidelines regime.” Id. Dorsey “must demon-
strate a reasonable probability that he would have received a
different sentence had the district judge known that the sen-
tencing guidelines were advisory.” Id. In cases, like this one,
where “the record does not provide an inkling of how the dis-
trict court would have proceeded had it known that the Guide-
lines were advisory rather than mandatory” the proper course
of action is to “remand to the district court to answer the ques-
tion whether the sentence would have been different had the
court known that the Guidelines were advisory.” Id. at 1078-
79. Accordingly, we remand Dorsey’s challenge to his sen-
tence to the district court for consideration in light of Booker
and Ameline.

CONVICTION AFFIRMED; SENTENCE
REMANDED.
 UNITED STATES v. DORSEY 10315
RAWLINSON, Circuit Judge, concurring in the result, dis-
senting in part:

I concur in the result in this case because, and only
because, of the Supreme Court’s recent ruling in Devenpeck
v. Alford, 125 S. Ct. 588 (2004). In Devenpeck, the Court
rejected our decision that probable cause to arrest must be
predicated upon an offense that is “closely related” to the
offense invoked by the arresting officer as the basis for arrest.
See id. at 593. The Supreme Court reiterated its prior holdings
that “a warrantless arrest by a law officer is reasonable under
the Fourth Amendment where there is probable cause to
believe that a criminal offense has been or is being commit-
ted.” Id. (citations omitted) (emphasis added).

In this case, the magistrate judge specifically found that
there was probable cause to arrest Dorsey for reckless driving.
Because of that fact, the arrest was lawful, and evidence dis-
covered during the search incident to Dorsey’s arrest was
admissible. See id., see also United States v. Smith, 389 F.3d
944, 952 (2004) (holding “that as long as there is probable
cause to make an arrest, and the search is conducted roughly
contemporaneously with the arrest, the search-incident-to-
arrest doctrine applies and no warrant is required.”).

I respectfully disagree that there was probable cause to
arrest Dorsey for the crime of trespassing. Alaska Stat.
11.46.330(a)(1) defines trespass as “enter[ing] or remain[ing]
unlawfully . . . upon premises.” A person has entered or
remained unlawfully on public property if he “fail[s] to leave
premises . . . that [are] open to the public after being lawfully
directed to do so personally by the person in charge.” Alaska
Stat. 11.45.350(a)(2) (emphasis added). The Alaska Court of
Appeals has interpreted Alaska Stat. 11.45.350(a)(2) in the
context of public property, as follows:

A person cannot be convicted under
AS 11.46.350(a)(2) of “failing to leave” a public
10316 UNITED STATES v. DORSEY
facility “after being lawfully directed to do so”
unless the person fails to heed a reasonably contem-
poraneous directive to leave, or . . . the person heeds
the directive to leave but then returns to the public
facility after only a short while.

Turney v. State, 922 P.2d 283, 288 (Alaska App. 1996)
(emphasis added).

Turney involved a courthouse protester who was given a
letter by the court administrator informing Turney that he was
“prohibited from entering or remaining on court property to
engage in protest activities, picketing or pamphleteering.” Id.
at 285. Approximately two months later, Turney returned to
the courthouse, again engaging in protest activities. Id. A
court employee called the Alaska State Troopers, who
responded. Id. One of the troopers asked Turney to leave, and
Turney complied. Id. Turney was subsequently charged with
and convicted of trespass. Id. “[T]he State’s theory of prose-
cution was that Turney had committed trespass by returning
to the courthouse to renew his protect activities after receiving
[the court administrator’s] letter.” Id. at 286.

In reaching its decision to reverse Turney’s conviction, id.
at 290, the Alaska Court of Appeals started with the premise
that

a criminal trespass statute which applies to public
property in general, and which proscribes refusing or
failing to leave a public building or public grounds
upon being requested to do so by an authorized
employee, limits the power of public officials to noti-
fying people, in specified circumstances, that they
may not remain on the property and does not permit
them to bar entry.

Id. at 287 (citation and alterations omitted) (emphasis
added).
 UNITED STATES v. DORSEY 10317
The Turney decision discussed a Maryland case that is
remarkably similar to the case before us. In that case, In re
Appeal No. 631, 383 A.2d 684 (Md. 1978), the defendant vis-
ited a school after being previously told not to return. When
discovered, the defendant was taken to the vice-principal to
explain his return to the premises. Having failed to give a sat-
isfactory explanation, the defendant was arrested and con-
victed of trespassing. Id. at 685.

In reversing the conviction, the Maryland Court of Appeals
noted that the defendant was never asked to leave the school
premises on the day of the arrest. Id. at 687. “No request hav-
ing been given [on that day], there was none to disobey.” Id.
The Maryland Court emphasized that the previous requests to
leave could not serve as the predicate for the trespass charge.
Id.

State v. Johnson, 381 So. 2d 498 (La. 1980), is also a simi-
lar case cited in the Alaska Court of Appeals’ decision. In
Johnson, the Louisiana Supreme Court, like the Maryland
Court of Appeals, focused on the lack of a request to leave on
the day of the alleged trespass. Id. at 500. The Louisiana
Supreme Court construed the trespass statute as incorporating
“a reasonably contemporaneous” request to leave. Id. The
Louisiana Supreme Court defined reasonably contemporane-
ous as “a few hours prior to the arrest, the same day as the
arrest, or such other pre-arrest interval reasonable under the
. . . circumstances.” Id.

Finally, the Alaska Court of Appeals turned to New York
cases interpreting that state’s trespass statute. The Alaska
court summarized the New York approach as consistent with
that of Maryland and Louisiana. See Turney, 922 P.2d at 288.
“[U]nder New York’s general trespass statutes, the supervisor
of a public facility has no such power to bar an individual
from ever returning to the facility. Even though a person has
previously been ordered to leave and not return, this person
10318 UNITED STATES v. DORSEY
may not be prosecuted for trespass merely for returning on
another occasion.” Id. (citations omitted).

As informed by case precedent from three other states, the
Alaska Court of Appeals’ interpretation of the trespass statute
poses two major impediments to finding probable cause for a
trespass arrest in this case. The first is that Dorsey was not
“lawfully directed” to leave the school. The second is that the
record does not support the finding that he failed to leave the
premises or was directed to leave on the day he was arrested.

Alaska Stat. 11.46.330(a)(1) provides that a direction to
leave public premises must be done “personally by the person
in charge.” The Anchorage School District developed a writ-
ten warning to be given to potential trespassers. The warning
specifies that it is to be given by an Alaska School District
representative, not an Alaska Police Department representa-
tive. This distinction was known to the Alaska School District
and Alaska Police Department, as evidenced by the Memo-
randum of Understanding (MOU) between those two entities,
where representatives of each were designated as signees.1

As the Maryland Court of Appeals recognized, if the tres-
pass warning is not given as specified in the statute, no tres-
pass occurs upon re-entry onto the premises. See In Re Appeal
No. 631, 383 A.2d at 687. In this case, no authorized repre-
sentative of the Anchorage School District directed Dorsey to
vacate the premises. Consequently, the provisions of the tres-
pass statute were never triggered.

There is also no evidence in the record that Dorsey failed
to leave the school premises when directed to do so. The only
evidence in the record is that Dorsey was seen on campus
later that day, which in no way indicates that he never left.
1
The MOU was subsequently amended to specifically provide that
Alaska Police Department officers were authorized to provide the trespass
warning.
 UNITED STATES v. DORSEY 10319
Further complicating the trespass charges is that, as in Turney,
Dorsey was not directed to leave the campus on the day he
was arrested for trespass. The Alaska Court of Appeals con-
cluded that under these circumstances, no trespass occurred.
Turney, 922 P.2d at 286. The Alaska Court of Appeals noted
that the Alaska statute “does not authorize a government offi-
cial to bar a person from returning to a public building and its
surrounding property in perpetuity.” Id. Yet that is exactly
what the government officials attempted with Dorsey. I can-
not agree that the arrest for trespass was supported by proba-
ble cause, and dissent from that portion of the opinion
concluding otherwise.