United States v. Raposa

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________



          No. 95-2088



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    ROBERT RAPOSA,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
                                         __________________________



                                 ____________________



                                        Before



                                Lynch, Circuit Judge,
                                       _____________



                      Aldrich and Bownes, Senior Circuit Judges.
                                          _____________________



                                 ____________________



               Robert B. Mann, with  whom Mann & Mitchell was on brief, for
               ______________             _______________

          appellant.



               Margaret Curran, with whom Sheldon Whitehouse, United States
               _______________            __________________

          Attorney, and Zechariah Chafee, Assistant United States Attorney,
                        ________________

          were on brief, for the United States.



                                 ____________________



                                     May 29, 1996

                                 ____________________



LYNCH, Circuit Judge.  Following a plea of guilty to one
                          _____________



            count of  possessing heroin  with intent to  distribute, Robert



            Raposa was sentenced to a  term of 30 months imprisonment.   He



            appeals   that  sentence,  arguing   that  the  district  court



            erroneously  included  as  "relevant  conduct,"   see  U.S.S.G.
                                                              ___



              1B1.3 (Nov. 1994), his possession, with intent to distribute,



            of a substantial quantity of cocaine that the court had earlier



            ordered  suppressed as the product  of an illegal  search.  The



            consideration,  inter  alia,  of   the  suppressed  cocaine  as



            "relevant   conduct"   increased  the   defendant's  Guidelines



            sentencing range from 10-16 months to 30-37 months.  The latter



            was  the same  as the  range  that would  have obtained  if the



            defendant  had been convicted on  the cocaine count  as well as
                                _________



            the heroin count.



                   We  are asked  to  decide whether  the Fourth  Amendment



            exclusionary  rule   applies  in  the  context   of  Sentencing



            Guidelines proceedings, at least on the facts of this case.  On



            the record before us, however,  the resolution of that question



            is not necessary  to the decision of this appeal.   We decline,



            therefore, to reach that important question here, preferring to



            leave it for a future case.  Instead, we affirm the defendant's



            sentence on the  ground that the district court's findings were



            amply supported  by statements concerning the  cocaine provided



            by   the   defendant  and   incorporated  in   the  Presentence



            Investigation Report ("PSR"), and on which  he relied to obtain



            a reduction in his sentence for acceptance of responsibility.


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I



                   On  February   10,   1995,  two   narcotics   detectives



            interrupted a drug  deal in  progress in an  alley in  downtown



            Providence.   The defendant, Robert  Raposa, was sitting in the



            driver's seat of a parked  white Mercury Sable, doing  business



            with several  men standing at  his window, when  the detectives



            approached   and  identified  themselves  as  police  officers.



            Raposa bolted  out of  the car  and ran,  dropping a  bundle of



            heroin  packets labelled  "Die Hard" as  he fled.   One  of the



            officers picked up the  heroin packets and gave chase.   Raposa



            was apprehended.  The officers brought him back to the scene of



            the drug deal, where they found another bundle of heroin marked



            "Die Hard" and  $140 in  cash on the  ground near the  Mercury.



            Two  beepers  were  found  on  the  defendant, and  a  cellular



            telephone in  the car.   Raposa was arrested  and taken to  the



            central police station.



                   After  a  short investigation,  the  detectives  went to



            Raposa's apartment, while the  defendant remained in custody at



            the station.  A woman answered the door.  The officers told her



            that  Raposa had been arrested.   The woman  stated that Raposa



            was her boyfriend and lived with her in the apartment.



                   What happened  next was disputed.   The government would



            later  assert that  the  woman consented  to  a search  of  the



            apartment, and  that no search  was undertaken until  a consent



            form  had been  signed.   The defendant  would contend  that no



            valid  consent  was  ever  given,  and  that  his  girlfriend's


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signature on  the form  had been coerced.   In  any event,  the



            officers conducted a warrantless search of the apartment.  They



            seized  three  large  bags  containing over  $13,000  worth  of



            cocaine lying in a closet in one of  the bedrooms.  Back at the



            police  station, Raposa was  informed of the  seizures.  Having



            been  read his Miranda rights, he agreed to talk, and confessed
                           _______



            that the cocaine was his.



                   Raposa was  charged with  possession of  cocaine (375.21



            grams)  and  heroin  (less  than   5  grams),  with  intent  to



            distribute. After initially pleading not guilty to both counts,



            he moved to  suppress all of  the cocaine  that the police  had



            found  in his apartment,  arguing that it  was the fruit  of an



            illegal  search.   After an  evidentiary hearing,  the district



            court  granted  the motion,  finding  that  the government  had



            failed to prove that  Raposa's girlfriend had consented to  the



            search.    The defendant  subsequently  pleaded  guilty to  the



            heroin  charge  (Count  II),  and  the  government  voluntarily



            dismissed the cocaine charge (Count I).


II



                   Raposa's sentence for his heroin conviction was governed



            by U.S.S.G.    2D1.1.   Under  that  guideline, the  amount  of



            heroin  possessed   by  the  defendant  (less   than  5  grams)



            corresponds  to  a base  offense  level of  12,  which, charted



            against  a  criminal  history  category of  I,  would  yield  a



            Guidelines  sentencing range  of  10-16 months.   However,  the



            district court found, over  the defendant's objection, that the



                                          -4-



defendant's possession  of the  cocaine found at  his apartment



            constituted  "part of the same  course of conduct  . . . as the



            offense of conviction" under the Guidelines' "relevant conduct"



            provision.  U.S.S.G.   1B1.3(a)(2).



                   After expressing serious reservations about the fairness



            of considering  illegally seized  evidence for purposes  of the



            Guidelines'  relevant  conduct provisions,  the  district court



            concluded,  relying  on cases  from  other  circuits, that  the



            exclusionary  rule did not apply at sentencing.  The court thus



            incorporated the cocaine into the total drug quantity for which



            defendant  was to be sentenced, pushing the offense level up to



            22.     After  subtracting  three  levels   for  acceptance  of



            responsibility,  the court arrived at  a total offense level of



            19, yielding a  final sentencing  range of 30-37  months.   The



            court  imposed a sentence of 30 months, and the defendant filed



            this appeal.1


III



                   To date,  five circuit  courts of appeal  have addressed



            the  issue of  whether the  Fourth Amendment  exclusionary rule



            prohibits a sentencing court from  considering illegally seized



            evidence for purposes of determining or enhancing a defendant's


____________________



            1.  After acknowledging that defendant had raised a substantial

            issue for  appeal, the  district court granted  the defendant's

            request that he be permitted to remain released on bail pending

            appeal of the sentence.



                                          -5-



Guidelines sentence.2  Each  of these courts has held  that the



            exclusionary rule  does not  generally apply in  the sentencing



            context  and  that  there  is  no  blanket  prohibition on  the



            consideration of  illegally  seized evidence  for  purposes  of



            making the findings required under the Guidelines.   See United
                                                                 ___ ______



            States  v.  Jenkins,  4   F.3d  1338,  1345  (6th  Cir.   1993)
            ______      _______



            (rejecting, as  dicta, contrary statements in  United States v.
                                                           _____________



            Nichols, 979 F.2d 402,  410-11 (6th Cir. 1993), aff'd  on other
            _______                                         _______________



            grounds, 114 S. Ct. 1921 (1994)), cert. denied, 114 S. Ct. 1547
            _______                           _____ ______



            (1994); United States v. Tejada, 956 F.2d 1256, 1262 (2d Cir.),
                    _____________    ______



            cert.  denied, 506 U.S. 841 (1992); United States v. Lynch, 934
            _____  ______                       _____________    _____



            F.2d 1226,  1236-37 (11th Cir.  1991), cert.  denied, 502  U.S.
                                                   _____  ______



            1037  (1992); United States v.  McCrory, 930 F.2d  63, 69 (D.C.
                          _____________     _______



            Cir. 1991), cert. denied, 502  U.S. 1037 (1992); United  States
                        _____ ______                         ______________



            v. Torres, 926 F.2d 321, 325  (3d Cir. 1991).  The rule adopted
               ______



            in these cases  has not been met with universal  acclaim.  See,
                                                                       ___



            e.g.,  United States v. Jewel,  947 F.2d 224,  238-40 (7th Cir.
            ____   _____________    _____



            1991) (Easterbrook, J., concurring);  McCrory, 930 F.2d at 185-
                                                  _______



            87 (Silberman,  J., concurring); Wayne R. LaFave,  1 Search and
                                                                 __________


____________________



            2.  There  are also  several  reported cases  that address  the

            issue in the pre-Guidelines context.  See United States v. Lee,
                                                  ___ _____________    ___

            540 F.2d 1205, 1210-12  (4th Cir.), cert. denied, 429  U.S. 894
                                                _____ ______

            (1976); United States v. Vandemark, 522 F.2d 1019, 1021-25 (9th
                    _____________    _________

            Cir. 1975); United States  v. Schipani, 435 F.2d 26,  27-28 (2d
                        _____________     ________

            Cir.  1970), cert.  denied,  401 U.S.  983  (1971); Verdugo  v.
                         _____  ______                          _______

            United  States, 402  F.2d 599,  610-13  (9th Cir.  1968), cert.
            ______________                                            _____

            denied, 397 U.S. 925 (1970).
            ______



                                          -6-



Seizure   1.6, at  40-41 (2d ed. Supp. 1995).3   This court has
            _______



            not yet decided the issue.



                   Although  the parties have ably argued  to us the merits



            of each side of the debate, a review of the record requires the



            conclusion  that this case  does not present  a proper occasion



            for us to decide this important question.



                   After the defendant agreed to plead guilty to the charge



            of possessing  heroin with  intent to distribute,  the district



            court ordered that  a PSR be  prepared.  In  setting forth  his



            version  of the facts for  inclusion in the  PSR, the defendant



            (through  his counsel) provided  the federal  probation officer



            with  a signed statement in which  he voluntarily admitted that
                                                  ___________ ________



            he  owned  the  cocaine that  was  found  in  his apartment  on



            February  10, 1995.   The  statement was  incorporated verbatim



            into the PSR.  It declared, in relevant part:



                   I understand the  police recovered two bundles of

                   heroin  near  my car  [on  February  10].   Those

                   bundles  of  heroin were  my  heroin.   I  accept

                   complete responsibility for  my actions.  I  also

                   accept  responsibility for  the cocaine  found at

                   [my  apartment] . . . .  I have  always  accepted

                   responsibility  for this cocaine.   At the police

                   station, on the day of my arrest I made a  signed

                   statement.  In that statement I clearly  accepted


____________________



            3.  See also Todd Flaming, Comment, Laundering Illegally Seized
                ________                        ___________________________

            Evidence Through the Federal  Sentencing Guidelines, 59 U. Chi.
            ___________________________________________________

            L. Rev.  1209 (1992); Victor J. Miller, Note, An End Run Around
                                                          _________________

            the  Exclusionary Rule:  The Use  of Illegally  Seized Evidence
            _______________________________________________________________

            Under  the Federal Sentencing Guidelines, 34 Wm. & Mary L. Rev.
            ________________________________________

            241  (1992);  Clinton  R.  Pinyan,  Comment,  Illegally  Seized
                                                          _________________

            Evidence at Sentencing: How to Satisfy the Constitution and the
            _______________________________________________________________

            Guidelines With an "Evidentiary" Limitation, 1994 U. Chi. Legal
            ___________________________________________

            F. 523 (1994).



                                          -7-



responsibility for  the cocaine.[4]  The  cocaine

                   was found  in a  spare bedroom closet.   I accept

                   complete responsibility for my  actions with  the

                   cocaine[5]  as I  did with the  heroin [footnotes

                   added].



            The defendant lodged  no objection nor attempted to reserve any



            Fourth  Amendment argument  specifically  with respect  to  the



            PSR's recounting of these  admissions.6  Indeed, based in  part



            on  these statements,  the  defendant  successfully  argued  at



            sentencing  for  a  three-level  reduction  in  his  Guidelines



            offense level under U.S.S.G.   3E1.1.



                   Whatever  force  the  exclusionary  rule  might have  at



            sentencing, it clearly could not have barred the district court



            from considering  the defendant's voluntary  statements as  set



            forth  in the PSR.  Cf. United  States v. Patino, 862 F.2d 128,
                                ___ ______________    ______



            132-34 (7th Cir. 1988) (holding  second confession not to  have



            been obtained in violation of Fourth Amendment where sufficient



            time had passed since illegal search and initial confession and



            where intervening circumstances were benign), cert. denied, 490
                                                          _____ ______


____________________



            4.  It  appears, although  the  record is  not clear,  that the

            statement given by Raposa to the police on February 10 was also

            covered by the district court's suppression order.



            5.  The  defendant further  admitted,  elsewhere  in this  same

            statement,  that the  quantity of cocaine  he possessed  was at

            least  equal to  the amount  charged in the  indictment (375.21

            grams).



            6.  Defendant's PSR statement was not made under any promise of

            immunity.   Cf. United States  v. Conway, 81  F.3d 15 (1st Cir.
                        ___ _____________     ______

            1996).



                                          -8-



U.S. 1069 (1989).7   The  portion of the  PSR containing  those



            statements, to  which defendant  declined to  object (and  as a



            result of which he received acceptance-of-responsibility credit



            under  the  Guidelines), provides  an  independently sufficient



            ground for the district court's finding at  sentencing that the



            defendant possessed the cocaine  at issue.8  See United  States
                                                         ___ ______________



            v. Blanco, 888  F.2d 907,  908-09 (1st  Cir. 1989)  (permitting
               ______



            proof at  sentencing of  uncharged quantities of  drugs through



            statements in PSR to which defendant failed to object).



                   Thus,  on  the record  before  us, the  question  of the



            exclusionary rule's applicability at sentencing has  no bearing



            on the outcome of this appeal.  Cf. New England Legal Found. v.
                                            ___ ________________________



            Massachusetts Port  Auth., 883  F.2d 157,  176 (1st Cir.  1989)
            _________________________



            ("longstanding precedent" requires courts  to "avoid ruling  on



            constitutional  issues  when  non-constitutional   grounds  are



            dispositive").   Wholly  apart  from any  consideration of  the



            suppressed  cocaine  evidence, the  portions  of  the PSR  that

                                
            ____________________



            7.  Defendant  does not and  could not credibly  argue that the

            statements recounted  in the  PSR  constituted a  fruit of  the

            illegal  search  conducted  on the  day  of  his  arrest.   The

            statement provided  by defendant  to the probation  officer was

            voluntarily submitted, presumably  with the advice of  counsel.

            Furthermore,  the  statement  was provided  after  the district
                                                        _____

            court  had ruled on the defendant's suppression motion, so that

            defendant  could make  no  claim that  he  was unaware  of  his

            rights.    The provision  of  the  statement to  the  probation

            officer  was "sufficiently  an act  of free  will to  purge the

            primary  taint"  of the  illegal search.    Wong Sun  v. United
                                                        ________     ______

            States,  371 U.S. 471, 486  (1963); cf. Brown  v. Illinois, 422
            ______                              ___ _____     ________

            U.S. 590,  608-09 (1975)  (Powell, J., concurring)  (discussing

            attenuation doctrine).



            8.  Defendant  does   not  argue  that   the  relevant  conduct

            guideline itself is unconstitutional.



                                          -9-



recounted defendant's  admissions as to cocaine  possession, to



            which  no  objection  was  recorded, provide  clear  and  ample



            support for  the findings that  resulted in  the assignment  to



            defendant  of a total offense level of 19 under the Guidelines.



            Cf.  Murray  v.  United  States, 487  U.S.  533,  538-41 (1988)
            ___  ______      ______________



            (exclusionary  rule  does   not  affect  information  "cleanly"



            obtained through "independent source" (quoting United States v.
                                                           _____________



            Silvestri, 787 F.2d 736, 739 (1st Cir. 1986), cert. denied, 487
            _________                                     _____ ______



            U.S.  1233  (1988))).   Because this  aspect  of the  record is



            dispositive in favor of affirmance, we need not decide  whether



            the exclusionary rule applies at sentencing.


IV



                   For  the  foregoing reasons,  we  decline  to reach  the



            question of  whether  the Fourth  Amendment  exclusionary  rule



            applies in  the context of  Guidelines sentencing proceedings,9



            and  we uphold the sentence imposed by the district court based



            solely on our  conclusion that it  was adequately supported  by



            the facts established in the unobjected-to portions of the PSR.

                                
            ____________________



            9.  We  therefore  need  not  comment  on  the  merits  of  the

            government's contention at  oral argument  that any  unfairness

            that might  result from not  applying the exclusionary  rule at

            sentencing could  be alleviated by invoking,  as warranted, the

            due    process    prohibition   against    "sentencing   factor

            manipulation."  See United States v. Egemonye, 62 F.3d 425 (1st
                            ___ _____________    ________

            Cir.  1995);  United States  v. Montoya,  62  F.3d 1  (1st Cir.
                          _____________     _______

            1995);  cf. Jenkins, 4 F.3d  at 1345 (exclusionary  rule may be
                    ___ _______

            applied  at sentencing,  as  exception to  general rule,  where

            defendant shows that illegal  search was conducted for specific

            purpose of obtaining sentence enhancement); Tejada, 956 F.2d at
                                                        ______

            1263  (same); McCrory, 930 F.2d  at 69 (same);  cf. also Lynch,
                          _______                           ________ _____

            934 F.2d  at 1237  n.15 (reserving the  question); Torres,  926
                                                               ______

            F.2d at 325 (same).



                                          -10-



Affirmed.
                   _________


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