United States Court of Appeals
For the First Circuit
No. 04-1474
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER MARTINS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.
Wendy Sibbison, by appointment of the court, for appellant.
Virginia M. Vander Jagt, Assistant United States Attorney,
with whom Michael J. Sullivan, United States Attorney, was on
brief, for appellee.
June 27, 3005
__________
*Of the Tenth Circuit, sitting by designation.
SELYA, Circuit Judge. In this case, defendant-appellant
Christopher Martins challenges the district court's denial of his
motion to suppress the critical evidence used to convict him. His
appeal raises novel questions related to (i) the contours of the
"emergency aid" branch of the exigent circumstances doctrine and
(ii) the authority of law enforcement officers to conduct a
protective sweep following a warrantless but lawful entry into a
private residence. After answering these and other questions, we
affirm the defendant's conviction and sentence.
I. BACKGROUND
Given the principal focus of this appeal, we glean the
facts, as supportably found by the district court, from the record
of the suppression hearing. We supplement those facts, as
necessary, with other facts contained in the record. Once the
stage is set, we map the travel of the case.
A. The Facts.
On the evening of February 10, 2002, Sergeant Detective
Daniel Linskey responded to a radio call from an anti-gang unit
about a shooting at the corner of Wendover and Dudley Streets in
Boston's Roxbury section. Upon his arrival, he discovered a victim
nursing a gunshot wound. The wounded man could not provide any
useful information about the shooting.
A bystander informed Linskey that there was a second
victim up the street. Linskey proceeded north on Wendover Street
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for about 100 yards. Another bystander directed him to an
apartment building. Linskey entered the structure's first-floor
common area and saw a man he knew as "Fats" sitting in a kitchen
chair outside Apartment No. 1. The area was otherwise devoid of
furniture. Linskey asked Fats, who was bleeding from a gunshot
wound to the leg, where he had gotten the chair. Fats replied that
he had received it from "his boy" inside Apartment No. 1.
At that juncture, Linskey approached the exterior door of
the apartment. He immediately noticed a strong odor of marijuana
wafting from within. He knocked on the door and an adult male
voice asked him to identify himself. Linskey replied that he was
a police officer and asked to speak with the occupant. He next
heard voices and the sound of movement coming from within the
apartment. This was followed by utter silence.
After ninety seconds or so, Linskey knocked again and
asked to speak with the occupant. A young boy (perhaps eleven or
twelve years old) opened the door and stepped back into the foyer
of the apartment. The interior was poorly lit, but Linskey noticed
marijuana smoke drifting through the air. He asked the youth
whether his parents were home or whether anyone else was in the
unit. The boy responded in the negative. His voice was markedly
different from the voice that had originally spoken to Linskey from
behind the closed door.
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Linskey then stepped into the apartment and spied an even
younger girl watching television in a bedroom. When he was three
or four feet inside the threshold, he heard yelling from outside.
This proved to be the defendant, who entered the apartment by way
of the common hallway. The defendant asked what Linskey was doing
there and Linskey replied that he was investigating a shooting.
Adverting to the marijuana smoke, Linskey asked whether anyone was
in the apartment with the children. The defendant said that he was
in charge and that nobody else was present.
By that time, several other officers had arrived at the
scene and gathered in the common hallway. Linskey ordered them to
undertake a protective sweep of the premises to ascertain whether
the adult who originally had answered Linskey's knock was still
there. During the suppression hearing, Linskey testified that he
ordered the sweep for a variety of reasons, including the location
of one of the shooting victims immediately outside the apartment,
the marijuana smoke within, and the presence of young, apparently
unsupervised children. The principal impetus for his decision,
however, was that he had heard an older man speak from within the
apartment, yet both the youngster who answered the door and the
defendant insisted that no one else was there. Linskey indicated
that he was not sure who this other man was, what involvement he
may have had with the shootings, or even whether the defendant was
aware that someone might have entered the apartment. Given these
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manifold uncertainties, Linskey was concerned for the safety of
everyone involved.
The sweep quickly bore fruit. In a bedroom, Linskey
discovered José DeVeiga sitting on a bed, wrapped in a cloud of
marijuana smoke. DeVeiga seemed to be under the influence of
drugs. Linskey patted DeVeiga down, found no weapons, and asked
where the marijuana was stashed. When DeVeiga denied having any
marijuana, an incredulous Linskey remarked the thick marijuana
smoke filling the room.
At that point, the defendant volunteered that he had been
smoking marijuana and called Linskey's attention to two marijuana
roaches in an ashtray on the floor. Linskey told the defendant
that the cold roaches could not have been the source of the
billowing smoke. He then announced that he would obtain a search
warrant in an effort to locate the marijuana and instructed other
officers to "freeze" the apartment. He thereupon arrested both
DeVeiga and the defendant for possession of marijuana and placed
the two children in a relative's care.
The police rapidly obtained and executed a search warrant
for the premises. The ensuing search retrieved, inter alia,
handgun and rifle ammunition, as well as a Pyrex dish containing
crack cocaine residue.
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B. Travel of the Case.
On June 11, 2003, a federal grand jury in the District of
Massachusetts indicted the defendant on charges of (i) being a
felon in possession of ammunition in violation of 18 U.S.C. §
922(g)(1) and (ii) possessing cocaine base with intent to
distribute in violation of 21 U.S.C. § 841(a)(1). The defendant
moved to suppress the evidence found in the apartment on Fourth
Amendment grounds. He contended that the warrantless entry was
neither consensual nor justified by exigent circumstances and that
the protective sweep was unlawful.
The government opposed the motion and, on October 27,
2003, the district court convened a suppression hearing. Only
Linskey testified. The court deemed his account credible in all
relevant respects. It then made a series of findings. We
summarize them.
C The child's actions at the threshold
did not indicate either explicit or
implicit consent to enter.
C Exigent circumstances authorized
Linskey to enter; he had reasonable
cause to fear for the safety of the
boy, given the ongoing drug crime and
the possibility that he was unattended
or that one or more adults who were
participating in that crime were
present in the apartment.
C The totality of the circumstances
afforded Linskey a basis for reasonable
suspicion that someone in the apartment
posed a danger to him or to others and,
thus, justified a protective sweep.
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The apartment was in a high-crime area;
there had been a recent shooting nearby
and it was reasonable to infer that the
shooting was gang-related; and Fats
might well have been allied with a
gang, so that his retreat to Apartment
No. 1 might have represented a retreat
to a place where his confederates
resided.
On the basis of these findings, the court denied the motion to
suppress.
The case culminated in a four-day trial. The jury
convicted on both counts. The district court held the disposition
hearing on March 25, 2004. At that session, the court, relying on
the presentence investigation report (PSI Report), found that the
defendant was a career offender. See USSG §4B1.1. The defendant
unsuccessfully objected to this designation. The court calculated
the guideline sentencing range to be 210-262 months.
The prosecution sought a sentence at the midpoint of that
range, whereas the defendant sought a downward departure on the
ground that his criminal history category substantially
overrepresented the seriousness of his prior criminality. The
court agreed with the overrepresentation claim, but weighed the
overrepresentation against a number of aggravating factors present
in the crimes of conviction and refused to depart downward. When
all was said and done, the court imposed a 210-month incarcerative
term. This appeal followed.
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II. DISCUSSION
The defendant's asseverational array includes Fourth
Amendment challenges to both the initial entry into his apartment
and the subsequent protective sweep; objections to his sentence;
and a complaint anent ineffective assistance of counsel. We
address these three categories of claims sequentially.
A. The Fourth Amendment Claims.
Both aspects of the defendant's Fourth Amendment
challenge involve mixed questions of fact and law. Consequently,
we assay the district court's factual findings for clear error and
then review de novo its ultimate conclusion that the discerned
facts constitute a sufficient legal basis to justify the conduct
about which the defendant complains. See United States v.
Schaefer, 87 F.3d 562, 565 & n.2 (1st Cir. 1996); United States v.
Tibolt, 72 F.3d 965, 969 (1st Cir. 1995).
1. Warrantless Entry. It is a bedrock principle that
the prophylaxis of the Fourth Amendment is at its zenith with
respect to an individual's home. See Kyllo v. United States, 533
U.S. 27, 31 (2001). Thus, a "warrantless police entry into a
residence is presumptively unreasonable unless it falls within the
compass of one of a few well-delineated exceptions." United States
v. Romain, 393 F.3d 63, 68 (1st Cir. 2004). Some of these
exceptions are bundled together under the heading of "exigent
circumstances" — a heading that encompasses those situations in
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which some compelling reason for immediate action excuses law
enforcement officers from pausing to obtain a warrant. See Tibolt,
72 F.3d at 969. Common examples of exigent circumstances include
"(1) 'hot pursuit' of a fleeing felon; (2) threatened destruction
of evidence inside a residence before a warrant can be obtained;
(3) a risk that the suspect may escape from the residence
undetected; or (4) a threat, posed by a suspect, to the lives or
safety of the public, the police officers, or to herself." Hegarty
v. Somerset County, 53 F.3d 1367, 1374 (1st Cir. 1995).
The Hegarty list is not an exclusive compendium, and the
government's principal argument here invokes another species of
exigent circumstances: the emergency aid doctrine. See Mincey v.
Arizona, 437 U.S. 385, 392 (1978) (noting, in dictum, that "the
Fourth Amendment does not bar police officers from making
warrantless entries and searches when they reasonably believe that
a person within [a private residence] is in need of immediate
aid"). The Mincey dictum has prompted several courts to designate
a general "emergency aid" category as a genre of exigent
circumstances sufficient to justify a warrantless entry into a
home. See, e.g., United States v. Holloway, 290 F.3d 1331, 1337
(11th Cir. 2002); United States v. Richardson, 208 F.3d 626, 630
(7th Cir. 2000); Wayne v. United States, 318 F.2d 205, 212 (D.C.
Cir. 1963) (Burger, J.). We joined this parade in United States v.
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Beaudoin, 362 F.3d 60, 66 (1st Cir.), cert. denied, 125 S. Ct. 484
(2004).1
Under this doctrine the police, in an emergency
situation, may enter a residence without a warrant if they
reasonably believe that swift action is required to safeguard life
or prevent serious harm. See id. To rely upon the doctrine, the
government must show a reasonable basis, approximating probable
cause, both for the officers' belief that an emergency exists and
for linking the perceived emergency with the area or place into
which they propose to intrude. Id. The requisite inquiry must be
undertaken in light of the totality of the circumstances
confronting the officers, including, in many cases, a need for an
on-the-spot judgment based on incomplete information and sometimes
ambiguous facts bearing upon the potential for serious
consequences. See id.
In applying this yardstick in the case at hand, we survey
the objective facts known to Linskey in the time frame leading up
to his entry. See Tibolt, 72 F.3d at 969. Upon knocking on the
door, Linskey heard an adult male voice, followed by conversation,
1
Our opinion in Beaudoin disposed of the appeals of two
defendants. The Supreme Court denied certiorari in Beaudoin's
case, but vacated his codefendant's sentence in light of its
decision in United States v. Booker, 125 S. Ct. 738 (2005). See
Champagne v. United States, 125 S. Ct. 1025 (2005). The vacation
of the judgment vis-à-vis Champagne in no way undercuts our
affirmance of the conviction and, thus, Beaudoin's Fourth Amendment
holding remains binding circuit precedent.
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movement, and then silence. Upon a second knock, the door opened
to reveal a young boy in an apartment filled with thick marijuana
smoke. The child indicated that he was home alone — a dubious
proposition in light of Linskey's knowledge that an adult male had
been inside the dwelling moments earlier.2 It seemed implausible
that the boy was unaware of the man's presence; indeed, the two
most likely inferences were that the boy was dissembling or that
the man had fled. Thus, the officer could have been reasonably
certain either that a man seeking to conceal himself from the
police was using the boy as a pawn in a dicey game of hide-and-seek
or that the man had bolted and left the boy unsupervised.
Either way, the child was present in the midst of an
ongoing crime (marijuana use) and was exposed to toxic smoke,
placing his welfare at risk. The officer would have been remiss
had he eschewed any attempt to ameliorate the boy's plight.
Because this parlous state of affairs gave Linskey ample cause to
believe that the boy needed emergency assistance, it justified his
entry. See 3 Wayne R. LaFave, Search and Seizure § 6.6(a) (4th ed.
2
The defendant argues that Linskey entered the apartment
before the boy stated that he was home alone. To bolster this
argument, he points to inconclusive and ambiguous snippets culled
from Linskey's testimony. But the district court found otherwise,
and that finding was not clearly erroneous. See Cumpiano v. Banco
Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990) (explaining that
"[w]here there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous")
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985)).
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2004) (stating that warrantless "entry for the purpose of rendering
aid is reasonable . . . [in order] to assist unattended small
children") (collecting cases).
This holding is within the mainstream of Fourth Amendment
jurisprudence. Other courts have found exigent circumstances in
similar situations. In United States v. Bradley, 321 F.3d 1212
(9th Cir. 2003), the police became aware that a nine-year-old boy
was potentially home alone after his mother's arrest. Id. at 1213.
After receiving no response to repeated knocking, the police
announced their presence, entered the home through an unlocked back
door, and discovered the child. Id. at 1214. The Ninth Circuit
emphasized that the officers were aware that a child was home alone
but were not aware of conditions inside the house. Id. at 1215.
Based primarily on those facts, the court reasoned that the
"possibility of a nine-year-old child in a house in the middle of
the night without the supervision of any responsible adult is a
situation requiring immediate police assistance." Id.
Consequently, the court found the officers' warrantless entry
justified under the emergency aid doctrine. Id.
So too United States v. Hughes, 993 F.2d 1313 (7th Cir.
1993), in which the police learned that an adolescent — a thirteen-
year-old girl — was inside a house occupied by persons smoking
crack cocaine. Id. at 1314. A police officer entered without a
warrant, explaining that he had done so because he "did not know if
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[the girl] was being held against her will, or if she was there
using drugs." Id. at 1315. Predicated on the officer's reasonable
belief that the child might be in danger, the Seventh Circuit found
that exigent circumstances justified the entry. See id.
The defendant seeks to debunk the reasonableness of
Linskey's belief that the boy was in need of emergency assistance.
He points to several cases in which risk to children was found not
to amount to exigent circumstances. See, e.g., Roska ex rel. Roska
v. Peterson, 328 F.3d 1230, 1240-41 (10th Cir. 2003); Calabretta v.
Floyd, 189 F.3d 808, 813 (9th Cir. 1999); Good v. Dauphin County
Social Servs. for Children & Youth, 891 F.2d 1087, 1095 (3d Cir.
1989). But without exception, these cases involve much less
ominous fact patterns. Far from helping the defendant, they put
the situation here into clearer focus. Unlike, say, the officer in
Calabretta, 189 F.3d at 813, Linskey did not enter the home based
on some unsubstantiated report of possible danger; rather, he
personally witnessed a child at the center of illicit drug activity
and had reasonable cause to believe that the child either had been
abandoned or else forced to help conceal an adult's presence. The
moment cried out for an immediate entry.
The defendant makes a last-ditch effort to blunt the
force of this conclusion: he suggests that the exigency was
manufactured by the police and, thus, cannot justify their
warrantless entry. While we agree that law enforcement officers
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may not manipulate events to create an emergency and bootstrap that
invented emergency into a justification for a warrantless entry of
a person's home, see United States v. Curzi, 867 F.2d 36, 43 n.6
(1st Cir. 1989), that principle is unavailing here.
We rest this holding on two grounds. In the first place,
the defendant's "manufactured evidence" argument is made for the
first time on appeal. It is, therefore, forfeited. See B & T
Masonry Constr. Co. v. Pub. Serv. Mutual Ins. Co., 382 F.3d 36, 40
(1st Cir. 2004) (explaining that "legal theories not raised
squarely in the lower court cannot be broached for the first time
on appeal") (internal quotation marks omitted). In the second
place, given the district court's supportable credibility
determination, the record cannot sustain a claim that Linskey
manipulated events to conjure up an emergency. For aught that
appears, he was simply doing a difficult job under difficult
circumstances.
That ends this aspect of the matter. We hold that
notwithstanding the absence of a warrant, the officer's entry into
the defendant's apartment was justified by exigent circumstances.3
2. The Protective Sweep. The defendant's remaining
Fourth Amendment plaint focuses on the legality vel non of the
protective sweep that the officers conducted after entering the
3
This holding makes it unnecessary to consider the
government's argument that the district court clearly erred in
finding that the child did not consent to Linskey's entry.
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apartment. The baseline rule is that police officers, in
conjunction with an arrest on residential premises, may undertake
a protective sweep so long as they can point to "articulable facts
which, taken together with the rational inferences from those
facts," would warrant a reasonably prudent officer in believing
"that the area harbor[s] an individual posing a danger." Maryland
v. Buie, 494 U.S. 325, 327 (1990) (internal quotation marks
omitted). This standard is an extension of the doctrine that
permits a police officer to pat down an individual for concealed
weapons upon a reasonable suspicion that the individual might be
armed, provided that the officer's belief is grounded in "specific
and articulable facts." Id. at 331-32 (quoting Terry v. Ohio, 392
U.S. 1, 21 (1968)). The reasonable suspicion needed to justify a
protective sweep is "no more and no less than was required in
Terry." Id. at 334.
Reasonable suspicion is an objective standard; its
existence "centers upon the objective significance of the
particular facts under all the circumstances." United States v.
Woodrum, 202 F.3d 1, 7 (1st Cir. 2000). That standard is
considerably less demanding than the level of proof required to
support a finding of probable cause. Romain, 393 F.3d at 71.
The scope of a protective sweep is limited: the doctrine
allows only a "cursory inspection of those spaces where a person
may be found." Buie, 494 U.S. at 335. The sweep may last "no
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longer than is necessary to dispel the reasonable suspicion of
danger and in any event no longer than it takes to complete the
arrest and depart the premises." Id. at 335-36.
Although Buie itself speaks of protective sweeps incident
to arrest, this court has employed the doctrine to allow protective
sweeps in conjunction with the execution of search warrants. See
Drohan v. Vaughn, 176 F.3d 17, 22 (1st Cir. 1999); United States v.
Daoust, 916 F.2d 757, 759 (1st Cir. 1990). Since police officers
lawfully may enter a home either with a warrant or upon probable
cause plus exigent circumstances, see Kirk v. Louisiana, 536 U.S.
635, 638 (2002) (per curiam), it would make no sense to hold that
the police may conduct a protective sweep when lawfully entering
with a warrant but must refrain from doing so when lawfully
entering on the basis of exigent circumstances. In either event,
the key is the reasonableness of the belief that the officers'
safety or the safety of others may be at risk. We hold, therefore,
that police who have lawfully entered a residence possess the same
right to conduct a protective sweep whether an arrest warrant, a
search warrant, or the existence of exigent circumstances prompts
their entry. See United States v. Gould, 364 F.3d 578, 584-87 (5th
Cir. 2004) (en banc) (stating that a protective sweep may be
justified so long as police did not enter illegally); United States
v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001) (holding that because
officers can constitutionally secure an area while awaiting a
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search warrant to ensure that evidence will not be destroyed, "it
follows logically that . . . the police may conduct a limited
protective sweep [of that area] to ensure the safety of those
officers"); cf. United States v. Garcia, 997 F.2d 1273, 1282 (9th
Cir. 1993) (permitting protective sweep when police were lawfully
present in a home by consent); United States v. Patrick, 959 F.2d
991, 996 (D.C. Cir. 1992) (declaring, in the context of a
consensual entry, that "[o]nce the police were lawfully on the
premises, they were authorized to conduct a protective sweep").
Beyond his general objection to the availability of the
protective sweep doctrine in the case of entries premised on
exigent circumstances, the defendant also asserts that the
protective sweep undertaken in this case transgressed the Fourth
Amendment because the police did not have reasonable suspicion to
believe that someone in the apartment posed a danger. In this
regard, he contends that the only real basis for suspecting danger
was the apartment's location in a high-crime plagued by gang
activity.
If this were so, the defendant's point would be well-
taken; mere presence in a high-crime area, without more, is
insufficient to meet the reasonable suspicion benchmark. See
Illinois v. Wardlow, 528 U.S. 119, 124 (2000); United States v.
Quinn, 815 F.2d 153, 162 (1st Cir. 1987). Here, however, the
defendant reads the record much too myopically. There were other
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factors in addition to the location of the apartment in a high-
crime neighborhood that contributed to the formation of reasonable
suspicion. We explain briefly.
The shootings, in which two men were wounded, had
occurred within 100 yards of the apartment complex. Moreover, the
apartment was tied to the shootings because one of the victims, not
a resident of the apartment, had retreated there. The police knew
from experience that victims in gang-area shootings often were gang
members themselves and tended to congregate with other gang
members.4 Cf. William Turner, Rescuing of the Romish Fox (1545)
("Birds of a feather flock together."). Given these facts, the
inference of danger was much more real and immediate than a generic
fear of what might happen in a high-crime area.
Then, too, the officer knew that there was a distinct
possibility that a man was hiding inside the apartment. That
possibility, in itself, elevated the level of suspicion. Cf.
Wardlow, 528 U.S. at 124 (holding evasive behavior and flight to be
pertinent factors in the reasonable suspicion calculus). To cinch
matters, immediately before the sweep the defendant claimed that he
was in charge and that no one else was on the premises. Linskey
4
In conducting a reasonable suspicion inquiry, courts should
recognize that veteran law enforcement officers, like Sergeant
Linskey, are entitled to rely on their experience. See Terry, 392
U.S. at 27; see also Woodrum, 202 F.3d at 6 (explaining that some
"[d]eference is due to the experienced perceptions of the
officers").
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had good cause to disbelieve the second half of that statement and
reasonably could have suspected that the mysterious possessor of
the adult voice posed a threat. See United States v. Cavely, 318
F.3d 987, 996 (10th Cir. 2003) (holding protective sweep justified
where homeowner arrested outside his home told officers that he had
a "friend" inside, but friend did not appear after police announced
their presence); United States v. Talley, 275 F.3d 560, 564 (6th
Cir. 2001) (holding protective sweep justified when police were
aware of two additional persons inside a home and were "misinformed
about their presence" by the owner).
Taking these facts in the ensemble — the high-crime area,
the shootings, their connection with the apartment, the officer's
experience and knowledge anent gang behavior, the evasive action of
the adult known to be present behind the door, and the seeming
attempt to misinform — we find them sufficient to ground a
reasonable suspicion that the unknown adult posed a threat to the
officers on the scene. That suspicion justified the protective
sweep.
B. The Sentencing Claims.
The defendant launches a two-pronged attack on his
sentence. He argues both that his classification as a career
offender was erroneous and that his sentence, viewed in light of
the Supreme Court's recent decision in United States v. Booker, 125
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S. Ct. 738 (2005), was infected by reversible error. We consider
each claim separately.
1. Career Offender Status. In order to qualify as a
career offender, a defendant must have "at least two prior felony
convictions of either a crime of violence or a controlled substance
offense." USSG §4B1.1(a). Even when a defendant has two prior
felony convictions, however, the sentencing court must count them
as a single prior felony if they are "related." Id. §§
4A1.2(a)(2), 4B1.2(c)(2). Prior convictions are considered related
if they "were consolidated for trial or sentencing." Id. § 4A1.2,
cmt. n.3(C).
At the time of his conviction in this case, the defendant
had prior felony convictions for assault and battery on a police
officer and assault with a dangerous weapon (both violent crimes).
The underlying offenses occurred several months apart (one on
November 2, 2000 and the other on May 29, 2001). The defendant
nonetheless strives to convince us that they are related because
the same state court judge disposed of both charges on the same day
during the same hearing. We are not persuaded.
We need not tarry. This question is controlled by our
decision in United States v. Correa, 114 F.3d 314 (1st Cir. 1997).
There, we held that when dealing with
offenses that are temporally and factually
distinct (that is, offenses which occurred on
different dates and which did not arise out of
the same course of conduct), charges based
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thereon should not be regarded as having been
consolidated (and, therefore, 'related')
unless the original sentencing court entered
an actual order of consolidation or there is
some other persuasive indicium of formal
consolidation apparent on the face of the
record which is sufficient to indicate that
the offenses have some relationship to one
another beyond the sheer fortuity that
sentence was imposed by the same judge at the
same time.
Id. at 317.
In the district court's view, the defendant's two prior
offenses were temporally and factually distinct and the record
contained no evidence of formal consolidation. Consequently, the
court followed Correa and ruled that the offenses were not related.
The defendant assigns error, insisting that the state court record
indicates that a "functional consolidation" had occurred.
This harangue is flatly inconsistent with our holding in
Correa. There, we held that, for guideline purposes,
"consolidation" requires more than common disposition. Id. at 317.
The critical datum, we said, is whether the record of the earlier
sentencing(s) shows any indicia of formal consolidation, the
existence of which would establish the necessary nexus between the
charges. Id. at 317-18. Because the defendant does not identify
either a formal order of consolidation or any other persuasive
indicium of formal consolidation (such as a docket entry), his
attempt to treat these two distinct offenses as one necessarily
fails.
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2. Booker Error. We turn next to the defendant's claim
that Booker error tainted his sentence. This claim is cast in two
forms.
The first iteration need not detain us. The defendant
asseverates that the Sixth Amendment, as interpreted by Booker, was
violated when a judge and not a jury determined the "fact" that his
prior convictions were not related. Assuming arguendo that
relatedness might be a fact that a judge could not determine
pursuant to a mandatory guidelines system — a dubious proposition
at best — the defendant's asseveration nonetheless must fail. Our
holding in United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.
2005), is pellucid that the Sixth Amendment is not violated simply
because a judge finds sentencing facts under the guidelines;
rather, the error is only that the judge did so pursuant to a
mandatory guidelines system. Id. at 75 (interpreting Booker).
The second iteration of the defendant's sentencing
argument embodies a conventional Booker claim. That such an error
occurred cannot be gainsaid; the district court, acting before the
Supreme Court decided Booker, understandably treated the guidelines
as mandatory. In reviewing this error, the threshold question is
whether it was preserved below.
The defendant proffers two reasons why we should deem the
error preserved: (i) he argued in the lower court that the
guideline provision permitting a downward adjustment for acceptance
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of responsibility, USSG §3E1.1, constituted an unconstitutional
burden on his Sixth Amendment right to a jury trial; and (ii) the
district court mused, sua sponte, that there were no Apprendi
issues involved in the sentencing. See Apprendi v. New Jersey, 530
U.S. 466 (2000). We explore these proffers.
In light of the unexpected nature of Booker's holding
that the sentencing guidelines must be treated as advisory, we have
been fairly liberal in determining what sorts of arguments sufficed
to preserve claims of Booker error in pre-Booker cases. See, e.g.,
United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005);
Antonakopoulos, 399 F.3d at 76. We have stated that we typically
will regard Booker error as preserved if the defendant below argued
that a guideline application transgressed either Apprendi or
Blakely v. Washington, 124 S. Ct. 2531 (2004), "or that the
Guidelines were unconstitutional." Antonakopoulos, 399 F.3d at 76.
The defendant seizes on the quoted language and asserts that his
argument that the acceptance of responsibility guideline was
unconstitutional suffices to preserve his present (much different)
claim of Booker error. We do not agree.
Although the language in Antonakopoulos is broad, it
cannot be dislodged from its contextual moorings. The cases
leading up to Booker dealt with the notion that the Sixth Amendment
required jurors to determine facts that were necessary to the
imposition of a certain sentence. See Booker, 125 S. Ct. at 748-50
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(discussing Apprendi and Blakely). The sentencing guidelines
suffered from this flaw, but the Booker Court opted to cure it by
invalidating those provisions of the Sentencing Reform Act that
made the guidelines mandatory. See id. at 764-65.
The Antonakopoulos formulation for the preservation of
claims of Booker error must be read against this background. See
Antonakopoulos, 399 F.3d at 75-76. It follows that the sort of
constitutional challenges sufficient to preserve claims of Booker
error in pre-Booker cases must fall at least arguably within the
encincture of the constitutional concerns raised in Apprendi,
Blakely, and Booker. The defendant's challenge below, which
posited that the acceptance of responsibility guideline
impermissibly "punished" him for going to trial and, thus, was an
unconstitutional infringement of his Sixth Amendment rights, bears
no relation to the concerns raised by Apprendi, Blakely, and
Booker. It follows inexorably that this challenge did not preserve
the defendant's nascent Booker claim.
The defendant's alternate proffer fares no better. He
cites United States v. Paradis, 351 F.3d 21 (1st Cir. 2003), for
the proposition that a party's failure to advance an issue in the
district court may be excused (and, thus, the error may be deemed
preserved) if the district court raises the issue on its own. See
id. at 28-29. The Paradis opinion will not bear the weight that
the defendant loads upon it.
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In that case, the government failed to argue explicitly
that a police officer's warrantless search was justified by the
protective sweep doctrine. Id. at 28. The government had,
however, cited a case in its brief that discussed the doctrine.
Id. at 28 n.6. We explained that, ordinarily, a bare citation
would be insufficient to preserve an issue for appellate review but
deemed the error preserved nonetheless because the district court
had pounced on the citation and incorporated the cited case's
discussion of the protective sweep doctrine into its ruling. Id.
at 28-29 & n.6. Paradis thus stands for the proposition that an
issue suggested by a party but insufficiently developed is
nonetheless preserved for appeal when the trial court, on its own
initiative, seizes the issue and makes an express ruling on its
merits.
Paradis is plainly inapposite here. During the
sentencing hearing, the district judge made a prescient observation
about the applicability of Apprendi to determinate sentencing
schemes, but noted that his concern had no application to the case
at hand. That rumination formed no part of the court's rulings or
holdings, and it would blink reality were we to allow the defendant
to piggyback upon the court's off-hand comment, promoted by neither
party, and use it as a means of "preserving" his claim of Booker
error. We conclude, therefore, that the defendant's claim of
Booker error was not preserved.
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Forfeited Booker errors engender plain-error review. See
United States v. Vega Molina, 407 F.3d 511, 533 (1st Cir. 2005);
United States v. González-Mercado, 402 F.3d 294, 302 (1st Cir.
2005). Consequently, the defendant must show "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). Here, the defendant has successfully negotiated the first
two steps of this pavane. See Antonakopoulos, 399 F.3d at 77
(holding that the court commits a clear and obvious error whenever
it sentences a defendant pursuant to a mandatory guidelines
regime). He stumbles, however, at the third step.
In order to prove that a Booker error affected a
defendant's substantial rights, the defendant must show a
reasonable probability that he would have received a more lenient
sentence under an advisory guidelines regime. González-Mercado,
402 F.3d at 303; Antonakopoulos, 399 F.3d at 78-79. To clear this
hurdle, the defendant in this case relies upon the fact that the
sentencing court, pursuant to the mandatory guidelines, was either
forbidden or discouraged from taking into account several
characteristics (e.g., his age and family circumstances).
We find the defendant's reliance misplaced. Nearly all
the factors to which he alludes were limned in the PSI Report, yet
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the district court chose not to speak to them at sentencing. The
inference is that the court was unimpressed. See United States v.
Figuereo, 404 F.3d 537, 542 (1st Cir. 2005).
The only new information proffered at the appellate level
— an affidavit recounting the alleged sexual abuse of two of the
defendant's siblings by another family member — seems to be in
direct contradiction of his statement to the probation officer that
there was no history of abuse in the family. Even in the roiled
wake of Booker, we are reluctant to allow a party to profit by a
calculated repudiation of a prior version of events solemnly given
to a probation officer and submitted to the district court.
By way of explanation, the defendant's able appellate
counsel makes a plausible argument that this chapter in the
defendant's past was shameful to him and, thus, he did not express
it given the apparent uselessness of such information for
sentencing purposes. But even were we to assume arguendo that this
new information is properly before us, other circumstances would
stymie the defendant's efforts to justify resentencing on this
basis. The district court found the defendant eligible for a
downward departure based on the fact that his criminal history
score substantially overstated the seriousness of his prior
criminality. Yet the court declined to depart, stating:
[T]he record . . . is that of a young man who
is deeply, deeply engaged both in dealing
illicit drugs, in a variety of thefts, which
it appears have a significant relationship to
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gaining, possessing, or the threat of using
firearms. And so I think you're very
dangerous. And for that reason, though your
prior convictions . . . would allow me to
depart downward, the most that I think is just
is to go [to the bottom of the guideline
sentencing range].
This passage makes clear that, despite its grave concern about the
fairness of the sentencing guidelines in general — a concern that
pops up repeatedly throughout the transcript of the disposition
hearing — the court deemed a 210-month sentence just. Given this
frank evaluation of the sentence, we do not believe there is a
reasonable probability that the court would have imposed a lesser
sentence had it been operating under an advisory guideline system.
Cf. Antonakopoulos, 399 F.3d at 81 (stating that "if the district
judge has said at sentencing that he would have reached the same
result regardless of the mandatory nature of the Guidelines, that
is a powerful argument against remand"). Accordingly, we reject
the defendant's importuning that the Booker error in this case
requires resentencing.
C. The Ineffective Assistance of Counsel Claim.
Last — and, as it turns out, least — the defendant posits
that he was denied the effective assistance of counsel, implying
that his trial attorney erred in not arguing manufactured exigency
at the suppression hearing and flatly stating that his lawyer
-28-
blundered in failing to explore the possibility of a conditional
guilty plea under Fed. R. Crim. P. 11(a)(2).5
Establishing ineffective assistance of counsel "requires
a showing that the [defense] attorney turned in a constitutionally
deficient performance that prejudiced the defendant's substantial
rights." United States v. Moran, 393 F.3d 1, 10 (1st Cir. 2004)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In
all but extraordinary circumstances, however, a claim of
ineffective assistance that is raised for the first time in this
court will not be entertained. See United States v. Mala, 7 F.3d
1058, 1063 (1st Cir. 1993) ("We have held with a regularity
bordering on the monotonous that fact-specific claims of
ineffective assistance cannot make their debut on direct review of
criminal convictions, but, rather, must originally be presented to,
and acted upon by, the trial court.") (collecting cases).
The defendant cannot elude the grasp of this line of
authority. It would serve no useful purpose to rehash the precise
details of his theory. Suffice it to say that the theory
presupposes that an accused with little chance of acquittal and a
weak but colorable argument for suppression is invariably better
served by a conditional guilty plea. That is a fallacious premise.
5
If such a plea could have been negotiated, it would have
preserved the defendant's right to appeal the denial of his
suppression motion while positioning him to secure a credit for
acceptance of responsibility (which presumably would have resulted
in a lower sentence).
-29-
Every case is different, and every lawyer knows (or ought to know)
the dangers of broad generalization. Without a fact-specific
inquiry into defense counsel's thinking (strategic and tactical)
and a knowledge of what exchanges occurred between counsel and
client, any decision we might make on the performance prong of the
ineffective assistance test would be inherently speculative. We
therefore decline to pass upon the defendant's ineffective
assistance of counsel claim without the benefit of a fully
developed record. Hence, that claim is premature, and we deny it
without prejudice to its subsequent reincarnation, should the
defendant so elect, in a post-conviction proceeding brought
pursuant to 28 U.S.C. § 2255.
III. CONCLUSION
We need go no further. To recapitulate, we conclude that
the police lawfully entered the defendant's abode pursuant to the
emergency aid branch of the exigent circumstances doctrine; that
they lawfully undertook a protective sweep of the premises
following their entry; and that, therefore, the district court did
not err in refusing to suppress the evidence seized from within the
apartment. We also conclude that the district court appropriately
classified the defendant as a career offender and committed no
reversible error in the course of sentencing him. Finally, we
conclude that the defendant's ineffective assistance of counsel
-30-
claim is premature and must be dismissed, without prejudice, on
that ground.
The defendant's conviction and sentence are affirmed.
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United States v. Martins
Court: Court of Appeals for the First Circuit
Date filed: 2005-06-27
Citations: 413 F.3d 139
Copy CitationsCombined Opinion