United States v. Raposa ( 1996 )


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    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

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    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.

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    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). ______

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    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).

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    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).

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    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.

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    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).

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    Affirmed. _________




















































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