United States v. Meada

United States Court of Appeals
For the First Circuit

No. 03-2410

UNITED STATES,

Appellee,

v.

JOHN MEADA, III,

Defendant, Appellant.

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

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Circuit Judge,
Leval,* Senior Circut Judge,
and Lipez, Circuit Judge.

Alison M. Adams, with whom The Chase Law Group and David R.
Yannetti were on brief, for appellant.
Donald L. Cabell, Assistant U.S. Attorney, with whom Michael
J. Sullivan, U.S. Attorney, was on brief, for appellee.

May 23, 2005

*
Of the Second Circuit, sitting by designation.
 LIPEZ, Circuit Judge. John Meada was arrested and

indicted on weapons possession charges after police discovered

firearms and ammunition in his home during a warrantless search.

Before trial, Meada moved to suppress all of the evidence that

police had discovered in his apartment. After several evidentiary

hearings, the trial court granted Meada's motion with regard to

grenades found in an ammunition can but ruled that other firearms

and ammunition were admissible because they were either in a

location Meada’s girlfriend consented to be searched or were in a

container in plain sight that betrayed its contents. Meada entered

a conditional guilty plea but preserved the right to challenge the

suppression ruling on appeal, which he now does. He also

challenges his sentence. We affirm the denial of Meada's motion to

suppress but vacate his sentence in light of United States v.

Booker, 125 S. Ct. 738 (2005), and remand for the limited purpose

of resentencing.

I.

We take the following facts from the district court's

findings, drawing on the record for additional facts as necessary.

On January 2, 2002, Carol Bowering went to the Hanover,

Massachusetts Police Department to inquire about obtaining a

restraining order against John Meada, her boyfriend, who she

claimed had recently been violent toward her. Bowering sought to

collect personal belongings that she brought to Meada's apartment

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while living there with him since November 2001. A police officer

instructed her to apply for a restraining order at the Hingham

District Court, and she did so.

Bowering returned to the Hanover Police Department with

her restraining order later that afternoon. She told the officer

on duty, Stephen Moar, that she had lived with Meada for

approximately two months and that she kept clothing and a cat at

his apartment. Moar inquired for officer-safety purposes whether

there were any weapons in the apartment. Bowering answered that

Meada had two long guns and one handgun, specifying their locations

in the apartment. Upon running a criminal history check on Meada,

Moar discovered that he had a criminal record and did not have a

license to carry a firearm. Moar and another officer, Gregg Nihan,

then accompanied Bowering to Meada's apartment to collect her

belongings.

Meada was not home when Bowering and the officers reached

the apartment. Bowering led the officers into the two-family unit

that Meada shared with his relative, Barbara Valentonis, and

through the unlocked door to Meada's apartment. She indicated a

BB gun and pellet rifle in plain view in the entryway and living

room, and then pointed to a kitchen cabinet where she said Meada

kept another gun. Upon opening the cabinet, Nihan found a .25

caliber wooden handled handgun, several boxes of ammunition, and

what he and Moar recognized as an "ammunition can," a metal

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container commonly used to store ammunition. Nihan opened the can

without asking Bowering's permission to do so. He discovered two

grenades inside.

Moar then accompanied Bowering into the bedroom where her

personal belongings were stored. A case labeled "GUN GUARD" stood

upright in the bedroom in plain view; it was fastened but not

locked. Without asking Bowering for permission, Moar placed the

case on the bed and opened it. He discovered three guns inside:

one sawed-off shotgun, one .40 caliber handgun and one .32 caliber

Winchester rifle. Meada returned home soon thereafter. Moar

served him with the restraining order outside the apartment, placed

him under arrest for weapons violations, and instructed him to wait

in a police car while the officers finished their search and

Bowering collected the rest of her possessions.

Meada was subsequently indicted on three weapons charges.

Count One of the indictment charged him with being a felon in

possession of firearms and ammunition, 18 U.S.C. § 922(g)(1).

Counts Two and Three charged him with possession of an unregistered

firearm, 26 U.S.C. § 5861(d), with Count Two based on the sawed-off

shotgun, and Count Three based on the grenades.1 In response,

Meada moved to suppress all of the evidence seized from his

1
None of the charges involved the pellet rifle and BB gun
discovered in the entryway and living room.

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apartment, contending that the warrantless search violated his

Fourth Amendment rights.

At a suppression hearing on February 28, 2003, the

government presented several witnesses including Bowering, Moar,

and Nihan. Bowering testified about her relationship with Meada

and her activities on the day of the search. Moar and Nihan

testified about the search itself, including the basis for their

belief that Bowering lived in the apartment and had authority to

consent to a search of it. First, Bowering appeared to be more

than a casual visitor because she kept clothing and her cat at the

apartment and because she asserted that she would be able to enter

the apartment in Meada's absence (without a key). Moar also

testified that he had driven by Meada's apartment numerous times

between 4 p.m. and midnight during November and December 2001

because Meada was a suspect in an unrelated investigation, and that

Bowering's red Firebird was regularly parked there. Meada then

presented Valentonis, his sole witness. She testified that

Bowering visited the apartment several times a week but that she

had never seen Bowering there without Meada.

Following the testimony, the court denied Meada's motion

with regard to the handgun and ammunition discovered in the kitchen

cabinet, finding that the officers reasonably believed Bowering had

authority to consent, and that she had actual authority to consent,

to a search of the apartment that included the cabinet. The court

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reserved judgment on items found in the ammunition can and gun

case, allowing additional briefing on the admissibility of items

seized from closed containers.

On June 19, 2003, the court held another hearing at which

Meada and his friend Daniel Marshalsea testified pursuant to a

Motion to Reopen. Meada claimed that Bowering had never lived with

him, that he always locked his apartment door but that the lock had

been jimmied open on the day of the search, that the weapons were

not his but rather belonged to another man who had briefly stayed

in his apartment, and that he did not store the guns or the GUN

GUARD case in plain sight. Marshalsea testified that Bowering had

come to Meada's apartment only once or twice a week and that her

relationship with Meada was not sexual. The court rejected both

Meada and Marshalsea's testimony, which conflicted with that

offered by Bowering, the police, and even Meada's own witness,

Valentonis, and found that Meada had "taken this occasion to commit

perjury." The court then repeated its earlier ruling that the

handgun and ammunition discovered in the kitchen cabinet were

admissible.

At a third hearing on June 24, 2003, the court granted in

part and denied in part Meada's motion to suppress the weapons

found in the ammunition can and the gun case; that ruling was

reflected in a written order issued on August 29, 2003.

Distinguishing between the areas of the apartment to which Bowering

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had access, and these containers, to which she did not, the court

noted that "[c]onsent to search a dwelling is not necessarily

coterminous with consent to search closed containers within it."

Nonetheless, the court concluded that the firearms found in the gun

case were admissible. It reasoned that "the GUN GUARD case

constructively constituted at least one gun in plain view in the

bedroom" because the label betrayed the container's contents.

Meada thus had no reasonable expectation of privacy in the case and

could not challenge that aspect of the search.

By contrast, the court concluded that Meada did have a

privacy expectation in the ammunition can because its outward

appearance did not reveal that it contained grenades. The court

found that Bowering did not consent to a search of the can, nor

could the police reasonably have believed she had authority to

consent to such a search in light of her initial indication that

she did not own any of the weapons in the apartment. Because the

court also found that the inevitable discovery doctrine did not

apply, it granted Meada's motion to suppress the grenades.2

Following the court's evidentiary rulings, Meada entered

a conditional guilty plea to Counts One and Two of the indictment.

Count Three of the indictment, involving the grenades, was

dismissed. The court then sentenced Meada to 108 months'

2
The government has not appealed from the suppression of the
grenade evidence.

-7-
imprisonment. This sentence reflected a guidelines calculation

that included a two-level enhancement for obstruction of justice,

U.S.S.G. § 3C1.1 (2002), because of the court's finding that Meada

committed perjury at the June 2003 suppression hearing. The court

rejected Meada's argument that a reduction for acceptance of

responsibility was appropriate under U.S.S.G. § 3E1.1 (2002),

concluding that in light of Meada's ongoing insistence that the

weapons found in the apartment were not his, "[t]his is not a case

where Mr. Meada attempted to obstruct justice and has reformed.

This is a case in which he's continuing the misconduct that caused

me to find in June that he had committed perjury."

Meada now appeals, exercising the right he preserved

below to challenge the court's evidentiary rulings. First, he

argues that Bowering did not have actual authority to consent to a

search of the apartment, nor was it reasonable for the police to

believe that she had such authority. He further asserts that the

court should have suppressed the three firearms found in the gun

case for the same reasons that it suppressed the grenades

discovered in the ammunition can. Meada also appeals his sentence,

challenging both the two-level obstruction of justice enhancement

and the court's refusal to adjust the sentence downward for

acceptance of responsibility. Finally, he contends that he is

entitled to be resentenced in light of United States v. Booker, 125

S. Ct. 738 (2005).

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 II.

A. The Fourth Amendment

"This court reviews a district court's legal conclusions

involved in denying a motion to suppress the evidence de novo and

its findings of fact for clear error." United States v. Marshall,

348 F.3d 281, 284 (1st Cir. 2003). Our deferential review of the

court's factual findings "'reflects our awareness that the trial

judge, who hears the testimony, observes the witnesses' demeanor

and evaluates the facts first hand, sits in the best position to

determine what actually happened.'" United States v. Charles, 213

F.3d 10, 18 (1st Cir. 2000) (quoting United States v. Young, 105

F.3d 1, 5 (1st Cir. 1997)).

The Fourth Amendment generally requires the police to

obtain a warrant before entering and searching a person's home.

See United States v. Beaudoin, 362 F.3d 60, 65 (1st Cir. 2004),

cert. denied, 125 S. Ct. 484 (2004) ("A warrantless search

involving an intrusion into someone's home is presumptively

unreasonable under the Fourth Amendment."). However, this rule is

not absolute; the Supreme Court has recognized that warrantless

searches do not offend the Fourth Amendment under certain

circumstances. For example, police need not seek a warrant where

"voluntary consent has been obtained, either from the individual

whose property is searched, or from a third party who possesses

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common authority over the premises." Illinois v. Rodriguez, 497

U.S. 177, 181 (1990) (internal citations omitted).

1. Bowering's consent to search the apartment

The district court held that the search of Meada's

apartment was constitutional under the consent exception to the

Fourth Amendment's warrant requirement. Specifically, the court

found that Bowering consented to the search and that she had

authority to do so by virtue of having lived with Meada for two

months. Although Meada disputes whether any actual authority

Bowering had extended to admitting third parties to the apartment,

we need not address that question here.3 Rather, we affirm solely

on the alternate basis offered by the district court: "[e]ven if

Bowering did not actually have the authority to consent to the

search, . . . it was objectively reasonable for the law

enforcement officials to believe that she did." This apparent

authority rationale is sufficient to immunize the search from

constitutional attack regardless of whether Bowering had actual

authority to consent. Rodriguez, 497 U.S. at 186 ("The

Constitution is no more violated when officers enter without a

warrant because they reasonably (though erroneously) believe that

the person who has consented to their entry is a resident of the

3
Meada also contests the district court's finding that
Bowering consented to the search. Given Bowering's undisputed
testimony at the suppression hearing that she voluntarily led the
officers into the apartment and pointed the weapons out to them,
this challenge must fail.

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premises, than it is violated when they enter without a warrant

because they reasonably (though erroneously) believe they are in

pursuit of a violent felon who is about to escape.").

As the Supreme Court has explained, "the 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." United States v. Matlock, 415 U.S. 164, 170 (1974).

Common authority rests “on mutual use of the property by persons

generally having joint access or control for most purposes . . . ."

Id. at 171 n.7. Even if a person does not in fact have such

authority, police may rely on her consent if they reasonably

believe that she has such authority. The Court set forth the

standard for this reasonable belief in Illinois v. Rodriguez:

[L]aw enforcement officers may [not] always accept a
person's invitation to enter premises. Even when the
invitation is accompanied by an explicit assertion that
the person lives there, the surrounding circumstances
could conceivably be such that a reasonable person would
doubt its truth and not act upon it without further
inquiry. As with other factual determinations bearing
upon search and seizure, determination of consent to
enter must be judged against an objective standard: would
the facts available to the officer at the moment . . .
warrant a man of reasonable caution in the belief that
the consenting party had authority over the premises?

497 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)

(internal quotation marks omitted)).

Here, the district court pointed to numerous

circumstances supporting a reasonable belief by the officers that

Bowering had joint access to the apartment such that she could

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consent to a search. Bowering told the officers that she kept

personal possessions, including several changes of clothing, a

photograph of her daughter, and her cat, at the apartment. She

asserted that she could enter the apartment in Meada's absence.

Her claim to have lived with Meada was also consistent with Moar's

independent knowledge that her car had been parked in front of the

apartment several evenings a week during the relevant time frame.

Thus, the officers were not merely acting on an unsubstantiated

assertion that Bowering had joint access to the apartment, but

rather on the totality of the circumstances that supported such an

assertion.

Meada contends that, to the contrary, the circumstances

did not support the officer's belief that Bowering had common

authority over the apartment. He analogizes this case to

Rodriguez, in which the Supreme Court found that a woman who had

previously lived with the defendant but later moved out did not

have the authority to consent to a search of his apartment. 497

U.S. at 181-82. There, the Court noted that Gail Fischer, the

consenting party, no longer lived in the apartment at the time of

the search, that her name was not on the lease, and that she did

not pay rent. Although Fischer had a key to the apartment, she had

obtained it without the defendant's permission. Meada stresses

that Bowering, like Fischer, had another residence and had not been

given a key by the apartment owner.

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 In rejecting Meada's argument, we note that Rodriguez’s

factual inquiry was limited to the issue of actual authority. The

lower court in Rodriguez did not reach the question of whether the

officers had an objectively reasonable belief that the person

granting access to the premises had authority over those premises

because it erroneously ruled that, as a matter of law, “reasonable

belief could not validate entry.” 497 U.S. at 189. The Supreme

Court remanded so that the lower court could determine whether the

officers had such a reasonable belief. Id. Because we affirm the

district court’s denial of the suppression motion on the grounds

that, in the officers’ perception, Bowering had apparent authority

to invite them into the apartment, it makes no difference whether

in fact she possessed any more legitimate claim of authority than

Fischer in the Rodriguez case. What matters is whether, based on

the information in the officers’ possession, they reasonably

believed that Bowering had authority to invite them into the

apartment.

Focusing on Bowering’s authority as it appeared to the

officers, Meada contends that because they knew she was seeking a

restraining order against Meada and intended to move out, the

officers could not have reasonably believed she still had authority

to invite them into the apartment. We disagree. So far as the

officers knew, Bowering had not told Meada of the restraining

order. She told them she had been living at the apartment for two

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months and still had her personal belongings including her cat

there. Under the totality of the circumstances, it was objectively

reasonable for the police to believe that Bowering retained "mutual

use of the property" and thus could consent to a search. Matlock,

415 U.S. at 171 n.7; see also United States v. Trzaska, 859 F.2d

1118, 1120 (2d Cir. 1988) (estranged wife had authority to consent

to a search of her former husband's apartment two weeks after she

moved out, where she still had a key and collected personal

belongings during the search).

2. The GUN GUARD case

The district court also denied Meada's motion to suppress

the contents of the gun case found in his bedroom. The court found

that Meada did not have a reasonable expectation of privacy in the

contents of the gun case because the case's GUN GUARD label

"clearly revealed its contents. It was specifically made to carry

guns and was stamped accordingly." Thus, because the gun case was

in plain view in the bedroom, which the police entered with

Bowering's consent, the court treated the firearms inside the case

as if they were also in plain view. Meada contends that this

finding was erroneous. We agree with the district court.

The district court recognized that Bowering's consent to

search the apartment did not necessarily authorize the officers to

search closed containers within the apartment. See United States

v. Karo, 468 U.S. 705, 725 (1984) (O'Connor, J., concurring)

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("Consent to search a container or a place is effective only when

given by one with 'common authority over or other sufficient

relationship to the premises or effects sought to be inspected.'")

(quoting Matlock, 415 U.S. at 171). Specifically, because Bowering

had disclaimed any ownership interest in the weapons in the

apartment, the court noted that she could not have consented to a

search of any closed container that "suggested the presence of

ammunition or firearms." The gun case, like the ammunition can,

appears at first blush to fall into this closed container category.

Upon closer inspection, however, the two are distinguishable.

Although a person generally has an expectation of privacy

in items he places in a closed container, some containers so betray

their contents as to abrogate any such expectation. See United

States v. Huffhines, 967 F.2d 314, 319 (9th Cir. 1992). The

contents of such containers are treated as being in plain view.

United States v. Donnes, 947 F.2d 1430, 1437-38 (10th Cir. 1991).

Even if Bowering did not have the authority to consent to a search

of the gun case, then, the search did not violate Meada's Fourth

Amendment rights if the GUN GUARD label caused the firearms inside

to be in plain view of the officers. See Harris v. United States,

390 U.S. 234, 236 (1968) ("It has long been settled that objects

falling in the plain view of an officer who has a right to be in

the position to have that view are subject to seizure and may be

introduced in evidence.").

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 In Arkansas v. Sanders, 442 U.S. 753 (1979), the Supreme

Court specifically cited a gun case as an example of a container in

which the owner has no expectation of privacy:

Not all containers and packages found by police during
the course of a search will deserve the full protection
of the Fourth Amendment. Thus, some containers (for
example a kit of burglar tools or a gun case) by their
very nature cannot support any reasonable expectation of
privacy because their contents can be inferred from their
outward appearance. Similarly, in some cases the
contents of a package will be open to "plain view,"
thereby obviating the need for a warrant.

442 U.S. at 765 n.13. Although the Court later overruled Sanders,

it did so on an unrelated ground involving an application of the

warrant requirement's automobile exception. See California v.

Acevedo, 500 U.S. 565, 569 (1991). Our sister circuits who have

considered the question have concluded that "the plain view

container exception to the warrant requirement of the [F]ourth

[A]mendment remains valid." Donnes, 947 F.2d at 1437 (10th Cir.);

accord United States v. Williams, 41 F.3d 192, 196-97 (4th Cir.

1994) (acknowledging the plain view exception); United States v.

Knoll, 16 F.3d 1313, 1320-21 (2d Cir. 1994) (acknowledging the

exception without citing either Acevedo or Sanders); Huffhines, 967

F.2d at 319 n.5 (9th Cir.) (Acevedo "does not alter the principle

set forth in Sanders that there is no reasonable expectation of

privacy in a container that discloses its contents"); United States

v. Villarreal, 963 F.2d 770, 776 n.2 (5th Cir. 1992) ("the logic of

the Sanders footnote has survived").

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 Here, the container at issue was readily identifiable as

a gun case. Particularly in light of the GUN GUARD label, the

container's contents were unambiguous. Cf. United States v. Bonitz,

826 F.2d 954, 956 (10th Cir. 1987) (Sanders exception did not apply

to a hard plastic case that experts identified as a gun case but

that the trial court thought "could equally be suspected of carrying

a violin"). Under Sanders, then, Meada had no reasonable

expectation of privacy in the container's contents and thus the

police search of the case did not violate the Fourth Amendment.

Meada challenges this conclusion, arguing that the

district court should have suppressed the gun case's contents for

the same reason that it suppressed the grenades found in the

ammunition can. The court reasoned that the ammunition can "could

have been used to store something other than weapons or ammunition,"

citing a case in which a search revealed gold currency inside such

a can. See United States v. Gianquitto, No. 96-1408, 1996 WL 383909

(1st Cir. July 10, 1996) (unpublished). The court also noted that

the officer here had expected the can to contain ammunition when,

in fact, it contained grenades. Therefore, the court found, the can

"did not clearly reveal its contents." Meada argues that,

similarly, the gun case could have held something other than guns.

We are not persuaded. If that possibility, in and of

itself, were enough to escape the reach of the Sanders exception,

the exception would have virtually no application. We need not rule

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on the correctness of the district court’s suppression of the

grenades found in the ammunition can. What justified the search of

the gun case was that it reasonably appeared to contain a gun and

that, as a convicted felon, Meada was prohibited from possessing

one. Given that reasonable appearance, the fact that, upon opening

and careful inspection, the gun case might turn out to contain

something other than a gun was irrelevant. Because the officer was

lawfully on the premises and had within his sight an object that

reasonably appeared to be an item of contraband, he was authorized

to seize it.4

B. Guidelines calculation

At his sentencing hearing, Meada challenged the court's

imposition of an obstruction of justice enhancement and its refusal

to grant a downward departure for acceptance of responsibility. He

renews these objections on appeal. We review the district court's

interpretation of the sentencing guidelines de novo and the factual

findings underlying the sentence for clear error. United States v.

4
Meada also argues that the weapons in the gun case, like the
grenades in the ammunition can, should be suppressed because they
were not subject to inevitable discovery and the officers did not
obtain a search warrant. The inevitable discovery doctrine permits
the introduction of evidence obtained in an illegal search if such
evidence would inevitably have been discovered through an
independent legal search. United States v. Silvestri, 787 F.2d
736, 744-45 (1st Cir. 1986). In light of our conclusion that the
gun case search was legal, we need not conduct an inevitable
discovery analysis.

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Caldwell, 358 F.3d 138, 142 (1st Cir. 2004). Meada has not

demonstrated that his sentence was erroneous under this test.

1. Obstruction of justice

An obstruction of justice sentencing enhancement is

appropriate where the district court finds that "the defendant

willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the course of the

investigation, prosecution, or sentencing of the instant offense of

conviction." U.S.S.G. § 3C1.1 (2002). Here, the district court

imposed an obstruction of justice enhancement because it was

"firmly convinced" that Meada committed perjury when he testified

at the June suppression hearing. See id. cmt. n.4(b) (identifying

perjury as conduct to which the enhancement applies). The court

cited two specific subjects on which it believed Meada had given

false testimony: his repeated insistence that Bowering did not live

with him and his claim that he did not own any of the weapons in

the apartment. The court concluded that "Mr. Meada knowingly made

false statements which were material, and he did that in an effort

to defeat or to advance his motion to suppress."

Meada asserts that he did not commit perjury. He

essentially argues that his testimony was not false because there

is no evidence to establish either that Bowering lived at his

apartment or that he did not own the weapons. We disagree. The

court's conclusion that Meada willfully lied in his testimony about

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Bowering was not clearly erroneous. His testimony conflicted with

several other witnesses, including one of his own, who the court

considered to be more credible. The court also did not clearly err

in finding that Meada had lied about the weapons. As we have said:

Even if the record, read generously to appellant, might
conceivably support some less damning scenario -- and we
do not suggest that it can -- we would not meddle. Our
review is only for clear error -- and "where there is
more than one plausible view of the circumstances, the
sentencing court's choice among supportable alternatives
cannot be clearly erroneous."

United States v. Tejada-Beltrán, 50 F.3d 105, 110 (1st Cir. 1995)

(quoting United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

2. Acceptance of responsibility

Meada also argues that the district court erred in

denying him a three-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1. He acknowledges that

"[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing

or Impeding the Administration of Justice) ordinarily indicates

that the defendant has not accepted responsibility for his criminal

conduct." Id. cmt. n.4. However, he asserts that this is one of

the "extraordinary cases in which adjustments under both §§ 3C1.1

and 3E1.1 may apply." U.S.S.G. § 3E1.1.

The district court, presented with the same arguments now

before us, was unpersuaded. Citing Meada's false testimony at the

suppression hearing and his ongoing insistence that he did not own

the weapons in his apartment, the court concluded that "[t]his is

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not a case where Mr. Meada attempted to obstruct justice and has

reformed. This is a case in which he's continuing the misconduct

that caused me to find in June that he had committed perjury." See

§ 3E1.1 cmt. n.3 (although pleading guilty before trial is

"significant evidence of acceptance of responsibility," that

evidence "may be outweighed by conduct . . . inconsistent with such

acceptance").

We agree that Meada has not demonstrated that this case

is "extraordinary" enough to merit an adjustment for acceptance of

responsibility despite his obstructive conduct, nor has he pointed

to any factor that the district court failed to consider.

Therefore, the district court's refusal to grant an adjustment

under § 3E1.1 was proper.

C. Booker sentencing claim

The district court sentenced Meada to 108 months in

prison under the mandatory guidelines in accordance with then-

prevailing law.5 The Supreme Court's subsequent decision in

Booker, applicable to all cases on direct review, rendered the

guidelines advisory rather than mandatory. Meada now asserts that

he should be resentenced in light of this development. Because

Meada failed to preserve this claim by arguing in the district

5
Meada had a total offense level of 30 and a Category II
criminal history. His guidelines sentencing range was 108-135
months.

-21-
court that the guidelines were unconstitutional, our review is for

plain error. See United States v. Antonakopoulos, 399 F.3d 68, 76

(1st Cir. 2005). Under the plain error standard, we may vacate a

sentence imposed pursuant to the mandatory guidelines "where,

either in the existing record or by plausible proffer, there is

reasonable indication that the district judge might well have

reached a different result under advisory guidelines." United

States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005).

There are such indications in this case. While we have

little doubt that the district court, had it recognized the

guidelines were advisory, would have found the pertinent sentencing

facts much as it did, see Antonakopoulos, 399 F.3d at 80, the

further question arises whether the court would have attached the

same sentencing consequences to those facts. Under the dictates of

the guidelines, Meada's perjury had a substantial impact on his

sentence. It resulted in the addition of two levels for

obstruction of justice. Furthermore, his subsequent failure to

correct the perjury when given the opportunity to do so may well

have caused the related denial of a three-level adjustment for

acceptance of responsibility. The addition of five levels exposed

Meada to an increased minimum sentencing range of nearly four

years. While the district court made clear that for other reasons

Meada should receive a "long" sentence, the court did not indicate

that nine years, the lowest sentence permitted under his sentencing

-22-
range, was the appropriate sentence. Taking all this into account,

we think there is a reasonable probability that the district court

would have sentenced Meada to less time if it had known that the

guidelines were advisory, rather than compulsory. We therefore

vacate and remand for resentencing. However, this remand "should

not be taken as either a suggestion or a prediction that the

sentence will necessarily be altered." Heldeman, 402 F.3d at 224.

III.

The denial of Meada's suppression motion is affirmed.

Meada's sentence is vacated and remanded for further proceedings

consistent with this opinion.

So ordered.

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