United States Court of Appeals
For the First Circuit
No. 03-1695
UNITED STATES OF AMERICA,
Appellee,
v.
LEONARD BASKIN, a/k/a ROCKY, a/k/a ROCK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, Chief Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Stephen Hrones, with whom Hrones & Garrity was on brief for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
September 7, 2005
CYR, Senior Circuit Judge. Leonard Baskin appeals from
the judgment of conviction and sentence entered against him for (i)
possessing cocaine base with intent to distribute, 21 U.S.C. §
841(a)(1), and (ii) being a felon in possession of a firearm, 18
U.S.C. § 922(g)(1). We affirm.
I
BACKGROUND
The record facts are recited in the light most favorable
to the district court ruling denying Baskin’s motion to suppress
the evidence seized pursuant to a warrantless search. See United
States v. Antrim, 389 F.3d 276, 278 (1st Cir. 2004), cert. denied,
125 S. Ct. 1692 (2005). On April 20, 2001, Baskin and an associate
kidnapped two underage girls, who had run away from a group home in
Berkley, Massachusetts, then brought them to a motel room in
Swansea, Massachusetts, where both girls were detained at gunpoint
and one girl was raped.
En route to the motel, Baskin had stopped to sell drugs
from his car. He also kept cocaine in the motel room. One of the
girls, identified in the record as “TP,” escaped from the motel
room on April 21, and went to the local police. The first reports
to the police were received at 12:30 a.m. on April 23.
The police, who had reason to believe that TP had
contrived the story, and who were not specially trained to deal
with hostage situations, decided to conduct further investigation
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of TP’s story before attempting a forced entry of the motel room to
rescue the other girl, identified in the record as “AC.” Upon
placing the motel room under surveillance, the police decided that
it would be prudent to interview TP in person to assess her
credibility. The interview produced sufficient details to persuade
the police that TP was telling the truth. These investigations
were not concluded until 4:30 a.m. After determining that probable
cause and exigent circumstances existed to enable a warrantless
forced entry to the motel room, the police broke down the door at
5:00 a.m., whereupon they discovered Baskin and two females. While
placing Baskin under arrest, an officer flipped over a mattress and
box spring on a bed, disclosing a handgun and drugs.
On September 5, 2001, Baskin was indicted for possessing
cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1),
being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1),
and possessing a firearm in furtherance of a drug crime, id. §
924(c)(1). Baskin subsequently moved to suppress evidence seized
in the warrantless search of the motel room. Following an
evidentiary hearing, the district court denied the suppression
motion. After a five-day jury trial, Baskin was acquitted on the
§ 924(c)(1) count, but convicted on the § 841(a)(1) and § 922(g)(1)
counts. The district court ultimately sentenced Baskin to 180
months' imprisonment and 96 months' supervised release. Baskin now
appeals the conviction, as well as the sentence.
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II
DISCUSSION
A. The Motion to Suppress
Baskin contests the rejection of his pretrial motion to
suppress evidence seized from the motel room during the warrantless
search, especially the evidence discovered beneath the mattress and
box spring. Although the district court relied upon several
independent grounds, we affirm on its threshold determination that
Baskin failed to establish that he had both a subjective and an
objectively reasonable expectation of privacy in the motel room and
its contents, such as would afford sufficient support for his
personal exercise of the rights guaranteed under the Fourth
Amendment. See United States v. Romain, 393 F.3d 63, 68 (1st Cir.
2004), cert. denied, 125 S. Ct. 2924 (2005).
The evidence proffered to substantiate Baskin's privacy
expectations was contained in the Baskin affidavit, where he
contended that one "John Marshall" had rented the motel room for
him, that Marshall did not use the room but allowed Baskin to live
there for the week, that Marshall had provided Baskin with the only
room key, thus Baskin exercised control over the use of the
premises. See United States v. Sanchez, 943 F.2d 110, 114 (1st
Cir. 1991) (noting that defendant may establish Fourth Amendment
“standing” through evidence that premises’ owner gave him
permission to use the premises). Yet, when the government
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attempted at the motion hearing to cross-examine Baskin regarding
the evidence contained in his affidavit, he invoked the Fifth
Amendment right against self-incrimination, and refused to respond
to the questions put to him. Whereupon, the district court struck
the Baskin affidavit.
The district court did not abuse its discretion. See
United States v. Bartelho, 129 F.3d 633, 673 (1st Cir. 1997). “A
trial judge may strike a witness’s direct testimony if he flatly
refuses to answer cross-examination questions related to ‘the
details of his direct testimony,’ thereby undermining the
prosecution’s ability ‘to test the truth of his direct testimony.’”
Id. (citation omitted).
Although Baskin responds that the district court could
have fashioned a less harsh remedy, the trial court’s choice of
remedy is not grounds for reversal unless it constituted a manifest
abuse of its discretion, see id. at 674, whereas this trial record
amply supported the district court’s discretionary selection of
remedy. The details pertaining to John Marshall and his alleged
rental arrangement with Baskin were unquestionably a proper subject
for government cross-examination. As Baskin offered no other
evidence of either a subjective or an objectively reasonable
expectation of privacy in the motel room, other than his affidavit,
he has failed to establish any ground for asserting a Fourth
Amendment right. See Romain, 393 F.3d at 68; United States v.
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Starks, 40 F.3d 1325, 1333 (1st Cir. 1994).
B. The Guidelines Sentence
Following this appeal, the United States Supreme Court
held that the federal sentencing guidelines were advisory, rather
than mandatory. United States v. Booker, 125 S. Ct. 738 (2005).
As Baskin raised no constitutional challenge below to the
Sentencing Guidelines themselves, we review these Booker claims for
plain error only. See United States v. Antonakopolous, 399 F.3d
68, 75 (1st Cir. 2005).1
In instances of unpreserved Booker error, the defendant
“must point to circumstances creating a reasonable probability that
the district court would impose a different sentence more favorable
to the defendant under the new ‘advisory Guidelines’ Booker
regime.” Id.2 Baskin has not met that threshold burden.
The district court sentenced Baskin at the middle (viz.,
1
Following oral argument, we requested that the parties submit
supplemental briefs regarding the import of the Booker decision on
the Baskin sentencing. See Antonakopolous, 399 F.3d at 83.
2
On March 24, 2005, Baskin submitted a petition for rehearing
en banc, requesting that the court revisit its decision in
Antonakopoulos. See Fed. R. App. P. 35. As the petition
technically was premature because no panel decision had yet issued,
we denied the petition, without prejudice to refile a petition for
rehearing and/or rehearing en banc in due course. As this panel is
bound by Antonakopoulos unless and until it is vacated by the en
banc court, see Eulitt v. Me. Dep’t of Educ., 386 F.3d 344, 349
(1st Cir. 2004), we would deny a petition for panel rehearing which
is based solely upon the ground that we should refuse to apply
Antonakopoulos. Of course, Baskin remains free to submit a
petition for panel rehearing on other grounds, and to renew his
petition for rehearing en banc.
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180 months) of the applicable guidelines sentencing range (168-210
months). “When, under a mandatory guidelines regime, a sentencing
court has elected to sentence the defendant substantially above the
bottom of the range, that is a telling indication that the court,
if acting under an advisory guidelines regime, would in all
likelihood have imposed the same sentence.” United States v.
Gonzalez-Mercado, 402 F.3d 294, 304 (1st Cir. 2005); see United
States v. McLean, 409 F.3d 492, 505 (1st Cir. 2005). Here, the
district court, acting well within the limits of its discretion
under the mandatory guidelines, could have reduced the Baskin
sentence by one full year. Instead, however, the court explicitly
characterized the sentence as “appropriate,” adding that it was
designed to “protect society from danger.” See United States v.
Carpenter, 403 F.3d 9, 13-14 (1st Cir.), cert. denied, 125 S. Ct.
2284 (2005); see also United States v. Mercado, 412 F.3d 243, 253
(1st Cir. 2005).3
3
The Baskin attempt to demonstrate that the district court
felt constrained by the guidelines lacks merit. Baskin contends
that the district court’s statement that a two-level enhancement
under U.S.S.G. § 2D1.1(b)(1) “should be applied if a weapon is
present” indicates that the court would not have imposed the
enhancement unless it were mandatory. Instead, viewed in context,
the statement relates to Baskin’s unsuccessful contention that his
acquittal on the charge of possession of a firearm in furtherance
of a drug crime, 18 U.S.C. § 924(c)(1), foreclosed the court from
imposing a § 2D1.1(b)(1) enhancement. See United States v. De Leon
Ruiz, 47 F.3d 452, 454 (1st Cir. 1995) (rejecting that argument).
Further, Baskin points to the district court’s comment – that he
had “a good chance of getting the message [that he is not a
hopeless person] in less than 15 years” – as evidence that the
court would have imposed less than 15 years if it had the
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Additionally, Baskin contends that the district court
might have considered mitigating factors, such as family ties and
responsibilities, which constitute discouraged grounds for
departure under the Guidelines. See U.S.S.G. § 5H1.6. Although
the district court permitted Baskin to recite the details of his
family background and responsibilities during the sentencing
proceedings, the district court nevertheless sentenced him at the
middle of the guideline sentencing range. See United States v.
Martins, 413 F.3d 139, 154 (1st Cir. 2005) (rejecting same
argument, and noting that “[n]early all the [family circumstances]
factors to which [defendant] alludes were limned in the PSI Report,
yet the district court chose not to speak to them at sentencing”);
McLean, 409 F.3d at 505 (affirming sentence at middle of guideline
range despite evidence of mitigating circumstances not cognizable
under mandatory guidelines regime); United States v. Brennick, 405
F.3d 96, 102 (1st Cir. 2005). Similarly, on appeal Baskin proffers
discretionary power to do so. But he ignores the district court’s
comment that this promise of rehabilitation depended entirely upon
whether Baskin decided to “work on it.” The district court never
stated that this potentiality should affect the length of his
sentence. Indeed, as we have noted, the district court elsewhere
noted that the 15-year sentence was “appropriate.” Finally, Baskin
contends that the district court might consider, at a resentencing,
the disparity in the Guidelines between the penalties for
distribution of crack-cocaine and cocaine. See, e.g., Simon v.
United States, 361 F. Supp. 2d 35, 49 (E.D.N.Y. 2005). However,
the record contains no indication that any such differential would
have affected the court’s sentencing decision, and if it had any
such concern, the court could have reduced the disparity by
sentencing Baskin at the lower end of his sentencing range. Yet,
it did not.
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no pertinent information regarding his family circumstances which
had not been before the district court at sentencing. See Martins,
413 F.3d at 154 (considering proffer of new mitigating evidence on
appeal).
For these reasons, we discern no reasonable prospect that
the sentence imposed upon Baskin would be reduced were we to remand
for resentencing. Accordingly, the district court judgment is
affirmed.
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