US v. McCarty (02/02/07 - No. 06-1683)
Conviction and sentence for firearms charges is affirmed where: 1)
evidence obtained during a search of defendant's apartment was properly
admitted since the search adhered to the terms of the warrant; 2)
statements defendant made to police did not violate his Miranda rights;
and 3) the sentencing judge correctly calculated defendant's offense
level with an enhancement for a "destructive device."
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United States Court of Appeals
For the First Circuit
UNITED STATES OF AMERICA,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Jeffrey M. Silverstein, with whom Russell, Silver & Silverstein was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.
February 2, 2007
TORRUELLA, Circuit Judge. Steven McCarty ("McCarty") was charged in an
indictment with possessing an unregistered firearm in violation of 26
U.S.C. §§ 5861(d) and 5871, and with possessing a firearm
after having previously been committed to a mental institution in
violation of 18 U.S.C. § 922(g)(4). McCarty moved to suppress
certain statements and evidence he claimed were obtained in violation
of the Fourth and Fifth Amendments. The court denied the motion.
McCarty then entered a guilty plea conditioned on his right to appeal
the denial of the motion to suppress. The court sentenced McCarty to
thirty-six months in prison, to be followed by three years of
supervised release. McCarty now appeals the denial of the motion to
suppress and his sentence. After careful consideration, we affirm.
On July 10, 2004, at 4:18 P.M., Police Officer Brame ("Brame") received
a complaint from a woman identifying herself as McCarty's
ex-girlfriend. She told Brame that she had recently been to McCarty's
apartment to retrieve her possessions, that McCarty was in possession
of marijuana plants, and that McCarty had "vaguely" threatened her with
a sawed-off shotgun. Brame told Detective Goss ("Goss") about the
matter; Goss called the woman back, and asked her to come into the
police station. After interviewing the woman and her sister and
learning that McCarty had been recently institutionalized for mental
illness, Goss drafted a warrant application to search McCarty's
apartment. Goss brought the warrant application to a state district
attorney for approval, and then presented the application to a state
complaint justice. While Goss was seeking approval of the warrant,
Police Officer Rumsey ("Rumsey") contacted Bureau of Alcohol, Tobacco,
and Firearms ("BATF") Agent McSweyn ("McSweyn"), and informed him that
they would be executing a search warrant on an apartment thought to
contain firearms. The state complaint justice issued the warrant at
approximately 8:30 P.M. A box on the warrant stated, "This warrant
shall be executed between the hours of 7:00 AM and 9:00 PM."
Brame, Goss, Rumsey, and three other police officers proceeded to
McCarty's apartment, arriving at 8:56 P.M. At 8:57 P.M., Brame knocked
on McCarty's door, announced his identity, and stated that he had a
search warrant. After gaining entry, the officers encountered McCarty,
handcuffed him, and led him to a couch in his living room. The officers
began to search the apartment at 8:58 P.M. The officers found marijuana
and marijuana paraphernalia in the apartment. While searching behind
the couch in McCarty's living room, Goss found a duffle bag containing
a 12-gauge sawed-off shotgun. When McCarty saw Goss uncover the gun, he
stated that it was an antique known as "the old peacemaker," and that
it was in the same condition as when it was manufactured. McCarty then
asked the police officers for permission to smoke a cigarette, which he
was allowed to do. Upon returning to the apartment, McCarty complained
that his handcuffs were too tight, and Goss removed them. Goss then
seated McCarty at a table approximately four to five feet away from the
duffle bag containing the gun.
McSweyn arrived and conferred with Goss. Goss told McSweyn that he had
found a gun, and showed him the shotgun. When Goss showed McSweyn the
shotgun, McCarty stated, "That's mine. It's an old peacemaker." McSweyn
measured the gun, and determined that the barrel length was eleven
McSweyn then began to
question McCarty. At this time, a member of the search team, Police
Officer Burbank, was standing next to McCarty. Before asking him any
questions, McSweyn did not read McCarty any Miranda warnings, but
instead told McCarty that he was not under arrest, that he was free to
leave whenever he wanted, and that he did not have to answer questions.
McCarty nevertheless told McSweyn that he had received the gun from his
grandfather, that he had altered it to make it easier to fire and that
he had in fact fired the weapon, and that he had not registered the gun
with the BATF. McCarty also repeated his assertion that the gun was an
antique. The search concluded at 10:35 P.M., when all law enforcement
officers left the apartment.
On February 9, 2005, a
grand jury indicted McCarty on one count of possession of an
unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and
5871, and one count of possession of a firearm after having previously
been committed to a mental institution in violation of 18 U.S.C. §
922(g)(4). McCarty was arrested on April 14, 2005. On May 9, 2005,
McCarty filed a motion to suppress all evidence collected at his
apartment because the search warrant was defectively executed when
officers remained past 9:00 P.M., and to suppress all statements
McCarty made to Goss and McSweyn because McCarty was not informed of
his Miranda rights. The motion was referred to a magistrate judge, who
recommended that it be denied. The district court accepted the
recommendation of the magistrate judge and issued an order denying the
motion to suppress. On October 12, 2005, McCarty pled guilty pursuant
to a conditional plea reserving his rights to appeal the denial of the
motion to suppress.
pre-sentence report ("PSR") calculated his base offense level at 20,
U.S.S.G. § 2K2.1(a)(4)(B) (2003). The PSR applied a two-level
enhancement under U.S.S.G. § 2K2.1 (b)(3) (2003) because the
offense involved a "destructive device," resulting in a total offense
level of 22. The PSR also determined that McCarty had a criminal
history category of I.
McCarty raised seven
objections to the PSR, among them that the application of the §
2K2.1(b)(3) enhancement constituted impermissible double counting, and
that in any case, he did not qualify for the enhancement because he did
not possess a "destructive device." The court denied the objections and
applied the § 2K2.1(b)(3) enhancement. The court then applied a
three-level reduction for acceptance of responsibility, U.S.S.G. §
3E1.1 (2003), resulting in a total offense level of 19, which
translates to a recommended Sentencing Guidelines range of thirty to
thirty-seven months in prison. The court sentenced McCarty to
thirty-six months in prison on each count, to be served concurrently,
followed by three years of supervised release.
A. Motion to Suppress Evidence Collected at McCarty's Apartment
McCarty contends that
the district court should have suppressed the evidence collected by the
police at his apartment on July 10, 2004, because the search warrant
obtained by police stated that it could only be executed between 7:00
A.M. and 9:00 P.M., and police remained at his apartment until 10:35
P.M. We review a district court's decision to deny a motion to suppress
de novo as to legal conclusions and for clear error as to factual
findings. United States v. Vongkaysone, 434 F.3d 68, 73 (1st Cir. 2006).
The Fourth Amendment
prohibits "unreasonable searches and seizures." Even a search conducted
pursuant to a warrant may be "unreasonable" given the manner in which
the search has been conducted. See, e.g., United States v.
Ramírez, 523 U.S. 65, 71 (1998) ("Excessive or unnecessary
destruction of property in the course of a search may violate the
Fourth Amendment, even though the entry itself is lawful."); cf. United
States v. Young, 877 F.2d 1099, 1105 (1st Cir. 1989) ("[Nothing]
forbids continuing a search at night, at least when doing so is
McCarty complains that
the search of his apartment was unreasonable because it was conducted,
in part, at night, whereas the warrant authorizing the search stated
that the search could only be executed during the daytime. McCarty's
concern about nighttime searches is not unprecedented, see, e.g., Jones
v. United States, 357 U.S. 493, 498-99 (1958) ("[I]t is difficult to
imagine a more severe invasion of privacy than the nighttime intrusion
into a private home that occurred in this instance."), but nighttime
searches are not per se unreasonable; rather, we apply a traditional
reasonableness test to the search. Young, 877 F.2d at 1105.
In this case, the
search warrant provided that nighttime began at 9:00 P.M. See also Me.
R. Crim. P. 41(h) ("[A] warrant shall direct that it be executed
between the hours of 7 a.m. and 9 p.m. unless the judge or justice of
the peace . . . authorizes its execution at another time."). The search
warrant team gained entry to the apartment at 8:57 P.M. and began its
search at 8:58 P.M. Thus, even though they were cutting it very close,
the police did in fact commence the search during "daytime" as defined
by the warrant. The search continued until 10:35 P.M., but we have held
that a search which began during the daytime but which continued
through the nighttime is not necessarily unreasonable. Young, 877 F.2d
at 1104-05; see also State v. Sargent, 875 A.2d 125, 127-28 (Me. 2005)
(finding no grounds for suppression where a search began before 9:00
P.M. but concluded at 11:00 P.M.). In fact, the search of McCarty's
apartment was significantly less intrusive than the valid search
conducted in Young, which began in the morning, and continued
throughout the night and for two additional days. 877 F.2d at 1104.
Furthermore, we have stated that:
[i]n considering the question of reasonableness [of a search], a court
must assess the totality of the circumstances, including "the scope of
the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
United States v. Cofield, 391 F.3d 334, 336 (1st Cir. 2004). Here,
there is no evidence that McCarty was roused from his sleep, or that
the search was particularly intrusive. To the contrary, when the search
team knocked on the door, McCarty's roommate opened it, and the police
found McCarty standing awake in his living room. McCarty was allowed a
considerable degree of freedom during the search, which by all accounts
was conducted in a very professional manner. Finally, there is no
dispute that the search was well-justified given the report of weapons
and drugs by McCarty's ex-girlfriend.
Thus, we conclude that
the search of McCarty's apartment was reasonable, and that the district
court was correct to have denied McCarty's motion to suppress the
evidence collected from his apartment.
B. Motion To Suppress McCarty's Statements
McCarty argues that
his statements to the police and the BATF should be suppressed because
they were obtained in violation of Miranda v. Arizona, 384 U.S. 436
(1966). We review the district court's denial of McCarty's motion to
suppress de novo as to legal conclusions and for clear error as to
factual findings. United States v. Rojas-Tapia, 446 F.3d 1, 3 (1st Cir.
In Miranda, the Court
held that prior to interrogating a suspect who is in custody, that
suspect must be advised of certain rights in order to protect his or
her Fifth Amendment right against self-incrimination. 384 U.S. at
467-68. Thus, in order to claim a Miranda violation, a suspect must be
in custody, Pasdon v. City of Peabody, 417 F.3d 225, 227 (1st Cir.
2005), and the suspect must have been interrogated, Caputo v. Nelson,
455 F.3d 45, 49-50 (1st Cir. 2006).
McCarty made the first
set of statements that he claims should be suppressed while he was
handcuffed. As such, there can be no question that McCarty made those
statements while he was in custody. See New York v. Quarles, 467 U.S.
649, 655 (1984) (finding that a suspect was in custody because he "was
surrounded by at least four police officers and was handcuffed when the
questioning at issue took place"). Thus, we must determine whether an
"interrogation" occurred. An interrogation occurs when there is
"express questioning, . . . [or] any words or actions on the part of
the police (other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an
incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301
(1980). The facts of this case are similar to those in United States v.
Genao, where we found that no interrogation occurred when an officer
showed a suspect drugs and guns seized from the suspect's house and the
suspect blurted out an inculpatory statement. 281 F.3d 305, 308, 310
(1st Cir. 2002). Likewise, in the present case, Officer Goss "revealed
and inspected the shotgun in [McCarty's] immediate presence."
Appellant's Br. at 23. After seeing the shotgun, McCarty blurted out
that the gun was a "peacemaker" and began to tell Goss about its
origins. We find that Goss' removal of the gun from behind the couch
was not interrogation, and accordingly, there can be no Miranda
Similarly, the second
set of statements that McCarty claims should be suppressed were not the
product of interrogation. Like the first set of statements, the police
did not direct any questions to McCarty; rather, Goss simply showed the
gun to Agent McSweyn, who proceeded to measure the gun in McCarty's
presence. McCarty then told the officers, unprompted, that the gun was
his. Given Goss' uncontradicted testimony that neither he nor McSweyn
cast so much as an inquiring glance at McCarty, we find that McCarty's
unsolicited statement was not the product of interrogation, and thus
there was no Miranda violation.
The third set of
statements presents a different question. While police were concluding
the search, Agent McSweyn asked McCarty questions about the origins and
ownership of the shotgun. There is little debate that these questions
were designed to elicit a response, and as such, they constitute
interrogation. Innis, 446 U.S. at 301. However, before finding a
Miranda violation, we must determine whether McCarty was "in custody."
Pasdon, 417 F.3d at 227. In order to determine whether McCarty was in
custody, we look to see if "there is a 'formal arrest or restraint on
freedom of movement' of the degree associated with a formal arrest."
California v. Beheler, 463 U.S. 1121, 1125 (1983). When McSweyn began
to question McCarty, McCarty was no longer handcuffed. Although Agent
McSweyn and one additional police officer remained in McCarty's
presence, McSweyn explained to McCarty that he was not under arrest,
that he was free to leave at any time, and that he did not have to
answer any questions. It is clear that there was no arrest here and we
conclude that this does not constitute a "restraint on freedom of
movement" that would normally be associated with an arrest. See
Podlaski v. Butterworth, 677 F.2d 8, 9 (1st Cir. 1982) (finding that a
suspect was not in custody where "the defendant [was not] told he was
under arrest; . . . was in a home familiar to him; . . . [and] police
activity was consistent with investigatory questioning"). Accordingly,
because McCarty was not in custody while being questioned by McSweyn,
there was no violation of Miranda. Because we have found no Miranda
violations, the district court did not err in denying McCarty's motion
C. Application of U.S.S.G. § 2K2.1(b)(3)
McCarty's final salvo
is that the district court incorrectly calculated his total offense
level under the Sentencing Guidelines when it included the §
2K2.1(b)(3) enhancement for a "destructive device." Although the
Sentencing Guidelines are now advisory rather than mandatory, see
United States v. Booker, 543 U.S. 220, 245-46 (2005), we continue to
emphasize their importance in sentencing decisions and require courts
to correctly perform Guidelines calculations. United States v.
Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) ("In most
cases, this will mean that the district court will have to calculate
the applicable guidelines range including the resolution of any factual
or legal disputes necessary to that calculation . . . ."). We review
Guidelines calculations de novo as to legal conclusions, and for clear
error as to the sentencing court's factual findings. United States v.
Robinson, 433 F.3d 31, 35, 38 (1st Cir. 2005).
McCarty first argues
that the application of the § 2K2.1 (b)(3) enhancement is
impermissible because it constitutes double counting, inasmuch as both
the enhancement and the calculation of the base offense level, §
2K2.1(a)(4)(B), are based on his possession of a sawed-off shotgun. We
have often said that double counting is "less sinister than the name
implies." See, e.g., United States v. Lilly, 13 F.3d 15, 19 (1st Cir.
1994) (quoting United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993)).
This is because two (or more) guidelines will often rely on the same
underlying facts, although accounting for different sentencing
concerns. See, e.g., United States v. Wallace, 461 F.3d 15, 36 (1st
Cir. 2006) (applying § 2K2.1(a)(4)(B) to account for unlawful
possession of a weapon and § 5K2.6 to account for the way in which
the weapon was used). Thus, when
neither an explicit prohibition against double counting nor a
compelling basis for implying such a prohibition exists, clearly
indicated adjustments for seriousness of the offense and for offender
conduct can both be imposed, notwithstanding that the adjustments
derive in some measure from a common nucleus of operative facts.
Lilly, 13 F.3d at 20.
Here, there is no
explicit prohibition against double counting; to the contrary, U.S.S.G.
§ 2K2.1 cmt. n.11 (2003) explicitly states: "A defendant whose
offense involves a destructive device receives both the base offense
level from the subsection applicable to a firearm listed in 26 U.S.C.
§ 5845(a) (e.g., subsection . . . (a)(4)(B)), and a two level
enhancement under subsection (b)(3)." Nor is there a compelling basis
for implying such a prohibition. Whereas the sentencing guideline for
the base offense, § 2K2.1(a)(4)(B), covers the wide range of
weapons found in 26 U.S.C. § 5845(a), the § 2K2.1(b)(3)
enhancement is intended to provide harsher punishment for destructive
devices, a narrower set of more dangerous weapons. See § 2K2.1
cmt. n. 11 ("Such [destructive] devices pose a considerably greater
risk to the public welfare than other National Firearms Act weapons.").
For example, possession of a silencer might qualify a defendant for the
§ 2K2.1(a)(4)(B) base offense level because a silencer is listed
as a firearm in 26 U.S.C. § 5845(a), but would not qualify the
defendant for the § 2K2.1(b)(3) enhancement because a silencer is
not a "destructive device." See 26 U.S.C. § 5845(f) (defining
destructive devices). Thus, because the guidelines for the base offense
and the enhancement account for different sentencing concerns, we see
no double-counting problem with using both guidelines to calculate
McCarty's total offense level.
McCarty also argues
that the weapon he possessed did not qualify as a destructive device.
McCarty was found to possess a shotgun with a barrel length of eleven
inches, a barrel diameter of over one-half inch, and an overall length
of twenty-four inches. 26 U.S.C. § 5845(f) includes in the
definition of a destructive device:
any type of weapon by whatever name known which will, or which may be
readily converted to, expel a projectile by the action of an explosive
or other propellant, the barrel or barrels of which have a bore of more
than one-half inch in diameter, except a shotgun or shotgun shell which
the Secretary finds is generally recognized as particularly suitable
for sporting purposes.
McCarty suggests that this subsection excludes all shotguns from the
definition of a destructive device. McCarty is clearly wrong, as §
5845(f) specifically defines a destructive device as a device with a
barrel in excess of one half inch and which expels projectiles, which
is an accurate description of the sawed-off shotgun he possessed.
Furthermore, § 5845(f) specifically excludes from the definition
of a destructive device a "shotgun or shotgun shell which the Secretary
[of the Treasury] finds is generally recognized as particularly
suitable for sporting purposes." (emphasis added). The phrase "which
the Secretary finds" logically modifies "shotgun or shotgun shell."
Thus, § 5845(f) excludes from the definition of destructive device
only those shotguns the Secretary finds suitable for sporting purposes,
and implies that other shotguns are considered destructive devices.
McCarty also contends
that his shotgun is suitable for sporting purposes, and thus cannot be
a destructive device. However, the relevant question here, according to
§ 5845(f), is whether the Secretary of the Treasury has found that
a shotgun is suitable for sporting purposes. The Government avers that
the Secretary of the Treasury has not recognized sawed-off shotguns as
"useful for sportingMd purposes," and McCarty has offered no evidence
to the contrary. The Secretary's decision to not recognize sawed-off
shotguns as suitable for sporting purposes has ample support; courts
have found that sawed-off shotguns, such as the one possessed by
McCarty, "lack usefulness except for violent and criminal purposes,"
United States v. Fortes, 141 F.3d 1, 8 n.3 (1st Cir. 1998), and that
they "hinder rather than aid, the precision involved in sport
shooting," United States v. Linson, 276 F.3d 1017, 1019 (8th Cir. 2002).
Finally, McCarty notes
that § 5845(f) excludes from the definition of a destructive
device a firearm "which is . . . an antique." McCarty claims that his
gun was an antique, and that the Government has failed to rebut this
assertion. However, McCarty pled guilty to a violation of 26 U.S.C.
§ 5861(d), which required him to have possessed a firearm, as
defined by 26 U.S.C. § 5845(a). Section 5845(a) defines a firearm
as including a "shotgun having a barrel or barrels of less than 18
inches in length," but excludes an "antique firearm." Thus, by pleading
guilty to possessing a firearm as defined in § 5845(a), McCarty
pled guilty to possessing a weapon which was, by definition, not an
"antique firearm." Accordingly, the district court properly concluded
that for sentencing purposes, the weapon that McCarty possessed was not
an antique firearm. We conclude that because the weapon that McCarty
possessed was a destructive device as defined in § 5845(f), the
court properly applied the two-level enhancement under U.S.S.G. §
For the foregoing reasons, we affirm the judgment of the district court.