United States v. Bey

United States Court of Appeals
For the First Circuit

No. 15-1655

UNITED STATES OF AMERICA,

Appellee,

v.

PAUL BEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch, Kayatta, and Barron,
Circuit Judges.

Vivianne Jeruchim, with whom Jeruchim & Davenport, LLP, was
on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

June 9, 2016
 KAYATTA, Circuit Judge. Paul Bey pleaded guilty to a

variety of drug and firearm offenses. Pursuant to Federal Rule of

Criminal Procedure 11(a)(2), Bey's plea agreement reserved his

right to have this court review the district court's denial of his

motion to suppress the results of a search following an evidentiary

hearing. Otherwise, the plea agreement expressly waived Bey's

right to appeal his conviction, or to appeal any sentence that did

not exceed seventy months. Bey now appeals not only the denial of

the suppression motion, but also his sixty-month sentence, arguing

that enforcing his waiver of any right to challenge his sentence

would be a miscarriage of justice because the trial court

incorrectly calculated the sentencing range under the United

States Sentencing Guidelines (the "Guidelines"). For the reasons

that follow, we affirm the denial of the suppression motion and

reject the challenge to the sentence as waived.

I. Background

Because this appeal follows a guilty plea, we derive the

facts from the plea agreement, the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report, and

the sentencing hearing transcript. See United States v. Ocasio-

Cancel, 727 F.3d 85, 88 (1st Cir. 2013). Further, "we recite the

[additional] facts as found by the district court [in the

evidentiary hearing] to the extent they are not clearly

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erroneous."1 United States v. Beras, 183 F.3d 22, 24 (1st Cir.

1999).

On July 19, 2013, five police officers with the Everett,

Massachusetts, Police Department sought to execute a warrant for

Bey's arrest that stemmed from a domestic violence dispute

involving a firearm. Based on information offered by the victim

of that earlier offense, the officers determined that Bey was

likely staying at the home of Clarissa Summons in Everett. Bey

was barred from being within 100 yards of Summons's residence by

an abuse prevention order.

Sergeant Stallbaum was one of the five officers who

arrived at Summons's apartment and later testified at the

evidentiary hearing. Stallbaum, in testimony credited by the

district court, stated that Summons responded to the officers'

knocks on her front door.2 Asked whether Bey was inside, Summons

repeated aloud, "Is Paul Bey here?", and stated that she was not

sure whether Bey was in the residence. According to Stallbaum,

Summons then looked to her left and put her finger to her lips in

1
Bey asserts that several of the district court's credibility
determinations were clearly erroneous. We address these arguments
at greater length later in this opinion.
2
Three officers approached the front door, while two went to
the back of the house in case someone tried to run out the back
door. Of the three at the front door, two were in plain clothes
and one was in uniform. All three front-door officers were armed,
but their firearms were holstered.

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a hushing gesture. She then backed into the apartment while

opening the door to the home. The officers took this as both an

acknowledgment of Bey's presence in the residence and an invitation

to enter.

At this point, the officers entered the home, drew their

weapons, and quickly found Bey in a bedroom. Concerned for his

own safety, Stallbaum moved a black backpack on a nearby bed away

from Bey's reach, later testifying that he noticed that the bag

felt heavy and the objects inside were distributed unevenly. The

officers handcuffed Bey and asked him, before issuing Miranda

warnings, whether the backpack was his. Bey told the officers the

bag belonged to Summons. The officers removed Bey from the

apartment.

After Bey's departure, several officers stayed behind

and "look[ed] around" Summons's apartment. While Stallbaum left

to obtain a standard-issue consent to search form, another officer

on the scene, Officer McCabe, asked Summons for detailed

information regarding her four-year-old son who lived in the home

and was present at the time of the arrest. At some point in this

conversation, McCabe mentioned contacting the Massachusetts

Department of Children and Families ("DCF"). The district court

found that McCabe did not, however, refer directly to the

possibility of removing Summons's son from the home.

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 Following that interaction, Stallbaum returned and asked

Summons to sign the consent to search form, seeking her permission

to search the premises for evidence of the gun used by Bey in the

domestic violence offense that had prompted the arrest. Stallbaum

told Summons that she was free to withhold her consent, but, if

she did, she and her son would have to leave the house for several

hours while the police secured the apartment and applied for a

search warrant. Stallbaum, at this point, had no knowledge of the

earlier conversation between McCabe and Summons regarding the DCF.

Summons signed the consent to search form. She told the

officers that the black backpack belonged to her but that she was

lending it to Bey. A search of the backpack yielded a loaded 9

millimeter semi-automatic pistol with two magazines of ammunition,

a plastic bag containing 15.31 grams of marijuana, a medication

container containing 22.5 15-milligram oxycodone pills, and a

small electronic scale determined to have cocaine and marijuana

residue on it.

On September 24, 2013, on the basis of the evidence found

in the backpack, a grand jury issued an indictment accusing Bey of

committing six drug and firearm-related offenses. Bey moved to

suppress the evidence found in the bag as the fruits of illegal

searches of both Summons's residence and the backpack itself.

After an evidentiary hearing, the district court denied Bey's

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motion. See United States v. Bey, 52 F. Supp. 3d 299, 300 (D.

Mass. 2014).

Bey thereafter entered into a plea agreement whereby he

agreed to plead guilty to the indictment's six charges.3 Pursuant

to this agreement, the government recommended, inter alia, a

sentence of seventy months' incarceration and agreed to refrain

from seeking an appeal of any sentence imposed below that

recommendation. The agreement explicitly preserved Bey's right to

mount a later challenge to the district court's denial of his

motion to suppress. Otherwise, Bey waived his right to appeal his

conviction or the sentence he received, unless it exceeded seventy

months. The district court ultimately sentenced Bey to sixty

months' incarceration.

II. Analysis

A. Motion to Suppress

Bey argues that the officers' entrance into Summons's

residence and subsequent search of the black backpack were

"unreasonable searches and seizures" prohibited by the Fourth

Amendment. U.S. Const. amend. IV. The government concedes that

the officers entered and searched the residence without a search

warrant, but argues that the searches in question fell within

several of the recognized exceptions to the Fourth Amendment's

3
Count Six was later withdrawn by the government and
dismissed at Bey's sentencing hearing.

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warrant requirement. In weighing Bey's challenge to the denial of

his motion to suppress, we review the district court's legal

conclusions de novo and its findings of fact for clear error.

United States v. Vázquez, 724 F.3d 15, 19 (1st Cir. 2013).

1. The Search of Summons's Apartment

It is not entirely clear that Bey has any right to

challenge the entry into Summons's apartment. To assert such a

right, Bey needs to show that he had a "reasonable expectation of

privacy" in Summons's residence, such that he could later challenge

the lawfulness of its search and seek to suppress the evidence

found within. See United States v. Symonevich, 688 F.3d 12, 18

n.3 (1st Cir. 2012). While Bey was likely, at the time of the

arrest, a regular "overnight guest[]" staying at Summons's

residence with her consent and therefore normally would have been

entitled to some measure of privacy, Minnesota v. Olson, 495 U.S.

91, 99 (1990), his presence in the home was also in clear violation

of an abuse protection order, see Bey, 52 F. Supp. 3d at 300-01.

Generally, one cannot form a legally recognizable

expectation of privacy in a place where one is not legally allowed

to be. See generally United States v. Battle, 637 F.3d 44, 49

(1st Cir. 2011) (collecting cases). Several other courts have

specifically held that a defendant cannot claim a reasonable

expectation of privacy to the interior of a home where the

defendant's very presence is unlawful due to a restraining order.

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See, e.g., United States v. Cortez-Dutrieville, 743 F.3d 881, 884-

85 (3d Cir. 2014); Commonwealth v. Morrison, 710 N.E.2d 584, 586

(Mass. 1999). Nevertheless, because the merits of Bey's challenge

are easily resolved and because the district court did not consider

the issue of Bey's expectation, we assume the reasonableness of

that expectation and proceed to consider whether it was honored.

See United States v. Weems, 322 F.3d 18, 23 (1st Cir. 2003).

The Fourth Amendment forbids law enforcement from

searching a home without a warrant unless the search falls under

"one of the 'few specifically established and well-delineated

exceptions' to the warrant requirement." United States v. Forbes,

181 F.3d 1, 5 (1st Cir. 1999) (quoting Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973)). While the government points to several

possibly applicable exceptions, we need consider only the argument

that the warrantless entry and search was justified by Summons's

consent.

For consent to a search to be valid, the government must

prove by a preponderance of the evidence that the consent was

uncoerced. See United States v. Vanvliet, 542 F.3d 259, 264 (1st

Cir. 2008). The presence of coercion is a question of fact based

on the totality of the circumstances, including "the consenting

party's knowledge of the right to refuse consent; the consenting

party's possibly vulnerable subjective state; and evidence of

inherently coercive tactics, either in the nature of police

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questioning or in the environment in which the questioning took

place." United States v. Twomey, 884 F.2d 46, 51 (1st Cir. 1989)

(citing Schneckloth, 412 U.S. at 227, 229, 247)). "Appellate

challenges to the district court's factual findings relating to

the validity of the consent normally are reviewed only for clear

error." Vanvliet, 542 F.3d at 264.

Bey makes no argument that the officers procured

Summons's acquiescence to the search of her apartment through

"fraud, deceit, trickery or misrepresentation." Id. (citing Moran

v. Burbine, 475 U.S. 412, 421 (1986)). Rather, he asserts that

the police "engaged in coercive tactics" that overpowered

Summons's will by "communicat[ing] the absolute need for

compliance by Summons." Such tactics, Bey argues, led to Summons

becoming "nervous and extremely anxious [because of] the

substantial law enforcement presence" and feeling "forced to

comply." Essentially, Bey argues, the district court mis-weighed

the totality of circumstances in the officers' favor, giving short

shrift to Summons's subjective experience of fear and anxiety

produced by the presence of the officers.

While "the consenting party's possibly vulnerable

subjective state" is a factor in our balancing approach, Twomey,

884 F.2d at 51, it is but one. The district court's finding that

there was nothing in "Summons's demeanor that would suggest that

her ability to voluntarily consent was diminished," Bey, 52 F.

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Supp. 3d at 303, is well supported by the record as developed at

the evidentiary hearing. In crediting Stallbaum's account of the

front-door interaction and discounting Summons's subsequent

testimony as to the overbearing, fear-inducing impression that the

officers' presence provoked, we see no clear error in the district

court's "careful sifting of the unique facts and circumstances" of

the case. Schneckloth, 412 U.S. at 233.

Nor can we deem the officers' behavior so "inherently

coercive," United States v. Jones, 523 F.3d 31, 38 (1st Cir. 2008),

that Summons's "capacity for self-determination [was] critically

impaired," Schneckloth, 412 U.S. at 225. The "tactics" the three

police officers engaged in here--appearing at a doorstep and doing

no more than informing a resident that they were in possession of

an arrest warrant for an individual believed to be inside--do not

approach the far more robust police activity that we have

previously deemed to fall short of being "inherently coercive."

See, e.g., Jones, 523 F.3d at 38 (consent provided after "some ten

to fifteen government agents, guns drawn, entered [the

defendant's] hotel suite without knocking, handcuffed him, placed

him in a separate room, and proceeded to interrogate him" not

coerced); United States v. Barnett, 989 F.2d 546, 555 (1st Cir.

1993) (consent provided after defendant "was met at the door of

his home by seven or eight law enforcement officers, with guns

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drawn," was "arrested and handcuffed," and was "advised . . . of

his Miranda rights" not coerced).

Summons was not in custody when she provided consent.

During the exchange at the front door, the officers' guns were not

drawn and the officers did not attempt to apply any pressure beyond

appearing ready and eager to enter. "There was no overt act or

threat of force against [Summons]," nor were there "promises made

to [her]," nor are there any "indication[s] of more subtle forms

of coercion that might flaw [her] judgment." United States v.

Watson, 423 U.S. 411, 424 (1976). Indeed, the officers did not

even directly ask to be admitted before Summons opened the door to

them and (perhaps because she was fearful not of the police but of

Bey) signaled that they should enter. Our examination of the

totality of the circumstances accords with that of the district

court: Summons's decision to admit the officers into her home for

the purpose of searching for Bey was knowing and intelligent.

2. The Search and Seizure of Bey's Backpack

The district court further found that, by signing the

consent to search form, Summons acceded to the government's search

of the black backpack found near Bey.4 Bey, 52 F. Supp. 3d at 303–

4 Because we see no Fourth Amendment violation in the
officers' entrance into, and search of, Summons's residence, we
need not address Bey's argument that the backpack evidence must be
excluded as the "fruit of [a] poisonous tree." See Wong Sun v.
United States, 371 U.S. 471, 488 (1963).

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06. This additional grant of consent, Bey argues, was obtained

through official coercion.

Bey conceded in district court "that Summons possessed

common authority to consent to a search based on her ownership and

shared use of the backpack." Bey, 52 F. Supp. 3d at 304. Thus,

the government's search of the backpack was legal, and the evidence

found within it will not be suppressed, if we find that Summons's

acquiescence to that search was voluntary. Cf. United States v.

Matlock, 415 U.S. 164, 170 (1974) ("[T]he consent of one who

possesses common authority over premises or effects is valid as

against the absent, nonconsenting person with whom that authority

is shared.").

Bey argues that Summons's consent to the search of the

bag was procured by the officers' threat to call the state's child

welfare agency and the invocation of the possibility that her young

son would be removed from her home. In Bey's telling, the officers

repeatedly threatened Summons with a DCF visit and the removal of

her child for a period of "well over 15–20 minutes," during which

time the officers had already begun to search the backpack. The

officers' later procurement of Summons's signature on the consent

form, Bey says, was a post-hoc "cover up" attempt. Given this

allegedly overbearing pressure and exploitation of the

relationship between a mother and her young son, Bey asserts that

Summons could not have consented voluntarily. See, e.g., Lynumn

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v. Illinois, 372 U.S. 528, 534 (1963) (confession to police

involuntary when made "after the police had told [the suspect]

that state financial aid for her infant children would be cut off,

and her children taken from her, if she did not 'cooperate'").

This re-creation of what occurred after Bey was arrested

and removed from Summons's home differs dramatically from the

account provided by the officers and found more credible by the

district court. "In the absence of a reason not to do so, this

court defers to the district court's personal observations and

evaluation of the witnesses' credibility." United States v.

Marshall, 348 F.3d 281, 286 (1st Cir. 2003). The district court

found that while Officer McCabe did mention contacting the DCF in

conversation with Summons, this exchange occurred during a one-

on-one conversation between McCabe and Summons. Bey, 52 F. Supp.

3d at 301. While recognizing that Summons "became concerned" about

the potential consequences of any DCF intervention, the district

court determined that McCabe never made any reference to the

possibility that Summons's son could be removed from the home.5

Id.

5McCabe's reference to the DCF and questions regarding the
safety of Summons's child appear to have been, in any event,
pursuant to official police obligations since McCabe was likely a
mandated reporter of potential child neglect under state law. See
Mass. Gen. Laws ch. 119, § 51A(a). And, sensibly, there is no
penalty in our Fourth Amendment framework for attempts by law
enforcement to "secur[e] convenient and prompt consensual access

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 "Shortly after" this exchange, the court found,

Stallbaum returned inside with the consent form and sat down with

Summons to review the document, informing her of her right to

withhold consent and refraining from making "any . . . threats or

promises in an attempt to persuade Summons to sign the form." Id.

at 301–02. The court found that Stallbaum had no knowledge of the

earlier discussion between Summons and McCabe that touched on the

DCF. Id. at 301. The evidence also indicated that the officers

did tell Summons what would happen if she did not sign the consent

and, in doing so, made no suggestion that the child would be taken.

All in all, the district court did not clearly err in ruling that

Summons's consent to search the apartment was voluntary.

B. Sentencing Calculation

Finally, we turn to Bey's challenge to his sentence. In

ascertaining the proper Guidelines sentencing range, the district

court relied, in part, on the Guidelines' armed career offender

enhancement, U.S.S.G. § 2K2.1(a)(3), to classify a prior 2004

conviction as a "crime of violence," see id. § 4B1.2(a). The

effect of this classification was to increase the lower and upper

ends of the sentencing range by sixteen and twenty months,

respectively. The parties agree that, in light of the Supreme

Court's subsequent decision in Johnson v. United States, 135 S.

[to premises] by conveying accurate information to a recipient."
Vázquez, 724 F.3d at 22.

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Ct. 2551 (2015) ("Johnson II"), that the "residual clause" of the

Armed Career Criminal Act, 18 U.S.C. § 924(e), is

unconstitutionally vague and thus void, id. at 2557, the district

court erred. The government nevertheless argues that the waiver

of appellate rights contained in the plea agreement stops Bey's

appeal in its tracks.

Bey's plea agreement contained a detailed estimation of

his sentencing exposure. The agreement's Guidelines calculation

materially tracked that adopted by the district court,

contemplating a base offense level ("BOL") of 22 based on the

career offender enhancement. Elsewhere in the agreement, both Bey

and the government forfeited certain appellate rights. With

respect to Bey's ability to appeal the sentence he received, the

agreement stated:

Defendant agrees not to file a direct appeal
or challenge in a future proceeding
(collateral or otherwise) any sentence of
imprisonment of 70 months or less or any
orders relating to supervised release, fines,
forfeiture, and restitution. This provision
is binding even if the Court's Guidelines
analysis is different from that set forth in
this Agreement.

"A defendant who waives his right to appeal and

thereafter attempts to avoid the effect of the waiver must confront

the waiver head-on." United States v. Miliano, 480 F.3d 605, 608

(1st Cir. 2007). Under our case law, appellate waivers in plea

agreements are "presumptively valid," United States v. Teeter, 257

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F.3d 14, 25 (1st Cir. 2001), subject to three "stringent criteria,"

id. at 23. First, the plea agreement must "elucidat[e] the waiver

and delineat[e] its scope." Id. at 24. Second, the change-of-

plea colloquy must "suffice[ ] to ensure that the defendant freely

and intelligently agreed to waive [his] right to appeal." Id.

Finally, "if denying a right of appeal would work a miscarriage of

justice, the appellate court, in its sound discretion, may refuse

to honor the waiver." Id. at 25.

While not tackling these requirements "head-on," Bey's

appeal can only be understood as arguing that enforcement of the

waiver would work a "miscarriage of justice." We have previously

instructed that the miscarriage of justice exception is meant only

"to grant relief . . . in egregious cases," id. at 25, and is to

"be applied sparingly and without undue generosity," id. at 26.

To assess the appropriateness of invoking the exception, we

consider "the clarity of the [alleged] error, its gravity, its

character (e.g., whether it concerns a fact issue, a sentencing

guideline, or a statutory maximum), the impact of the error on the

defendant, the impact of correcting the error on the government,

and the extent to which the defendant acquiesced in the result."

Id.

Taking the disputed enhancement out of the equation, the

lower end of the sentencing range would still have exceeded the

actual sentence. Furthermore, Bey's appellate waiver provision

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included not just belt, but also suspenders, expressly stating

that it was "binding even if the Court's Guidelines analysis is

different from that set forth in this Agreement."

While an unobjected-to Guidelines calculation that the

parties agree is overstated in view of Johnson II may in some

circumstances be plain error, see, e.g., United States v. Hudson,

No. 14-2124, 2016 WL 2621093, at *5–7 (1st Cir. May 9, 2016) (one-

level increase in defendant's criminal history category presumably

voided by Johnson II vacated and remanded on plain error review),

it is not, in this case, a miscarriage of justice so "egregious"

that we would decline to enforce the strong appellate waiver clause

to which Bey agreed. See Sotirion v. United States, 617 F.3d 27,

38 (1st Cir. 2010) (no miscarriage of justice to overcome appellate

waiver when plea agreement misapplied "two-level increase [of

defendant's total offense level] for abuse of trust in its

calculation of his advisory sentencing guidelines range").

III. Conclusion

Bey's conviction and sentence are affirmed.

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