United States v. Martins

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)).

-11-
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

-19-
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

-23-
(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.

-25-
 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

-26-
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

-27-
 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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