USA v. Glen Lewis

Filing 511139115

USA v. Glen Lewis

Doc. 511139115

Case: 09-50324

Document: 00511139115

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Date Filed: 06/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 11, 2010 N o . 09-50324 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. G L E N LEWIS, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 5:07-CR-503

B e fo r e REAVLEY, WIENER, and SOUTHWICK, Circuit Judges. W I E N E R , Circuit Judge:* P la in t iff-a p p e lla n t Glen Lewis appeals his conviction for being a felon in p o s s e s s io n of a firearm. Lewis contends, inter alia, that the district court erred in denying his motion to suppress evidence. Agreeing with the government that t h e officer's warrantless entry into Lewis's residence was justified by exigent c ir c u m s t a n c e s , we affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-50324 I . FACTS AND PROCEEDINGS A. F a cts J u s t before midnight on October 9, 2006, the San Antonio police received b o th a 911 hangup call and a disturbance call related to the same San Antonio a p a r t m e n t . Officer James Phelan was sent to investigate the calls. When O ffic e r Phelan arrived at the apartment, which was on the second floor of the a p a r t m e n t building, he knocked on the door. Although it was his usual practice t o do so, Officer Phelan could not recall whether he had announced himself as a San Antonio police officer when he knocked. A woman later identified as D a r le n e Solid answered the door. W h ile standing outside the apartment at the door, Officer Phelan asked t h e woman if everything was all right and if there was anyone else present in t h e residence. The woman, who appeared calm, said her boyfriend, Glen Lewis ( " L e w i s " ), was in the apartment, at which time Lewis moved into view behind h e r . As Lewis was standing behind both her and the door, he was only partly v is ib le to Officer Phelan. O ffic e r Phelan then asked the woman and Lewis for identification so that h e could include their names on his incident report for the 911 calls. While O ffic e r Phelan was waiting for them to produce identification, he watched t h r o u g h a crack in the door as Lewis extended his arm and dropped a handgun o n a chair located behind the door. Officer Phelan immediately asked Lewis " W h a t 's the deal with the gun?" Lewis flatly denied having a gun, responding " W h a t gun?" According to Officer Phelan, Lewis's denial caused him to worry a b o u t his safety, so he grabbed Lewis by the arm and pulled him out of the a p a r t m e n t to handcuff him for safety reasons.

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No. 09-50324 Out on the front balcony, the woman interfered with Officer Phelan's a t t e m p t to handcuff Lewis by yelling that the gun was hers and that it was not l o a d e d . When the woman then grabbed onto Officer Phelan's arm, he hit the e m e r g e n c y button on his radio to summon backup officers. Officer Phelan

e v e n t u a lly handcuffed Lewis and held both him and the woman against the b a lc o n y railing while waiting for the backup officers to arrive. Although the r e c o r d is admittedly unclear on this point, it appears that Officer Phelan c o n d u c t e d a partial pat down of Lewis at this time and discovered three grams o f marijuana in his pocket. After the backup officers arrived within only a few minutes and secured b o th Lewis and the woman, Officer Phelan entered the apartment and retrieved t h e firearm, which was loaded. The woman then provided Officer Phelan with s o m e identification, including Lewis's Louisiana prisoner card. After discovering t h a t Lewis had previously been convicted in Louisiana for "simple robbery," a fe lo n y , Officer Phelan arrested Lewis for being a felon in possession of a firearm. As Officer Phelan was putting Lewis into the police car, he also discovered on L e w is 's person a loaded magazine, which fit the gun that Officer Phelan had r e c o v e r e d from the apartment. B. P r o c e e d in g s S e v e r a l months later, Lewis was charged with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Lewis filed a motion to s u p p r e s s the gun, the marijuana, and his post-detention statements, contending t h a t (1) there was no probable cause for Officer Phelan to enter the apartment, s e iz e the firearm, and arrest Lewis, and (2) there were no exigent circumstances

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No. 09-50324 ju s tify in g the warrantless search of the apartment. The government opposed the m o tio n . T h e district court held a hearing on the motion and Officer Phelan testified fo r the government. According to Officer Phelan, he had initially handcuffed L e w is because he felt concern for his safety after Lewis lied about the gun. Officer Phelan testified that he had retrieved the gun for safety purposes and t h a t he would have arrested Lewis for the marijuana regardless of his prior fe lo n y conviction. The defense did not call any witnesses. A t the close of the hearing, the government contended that Officer P h e la n 's warrantless search had been justified by exigent circumstances. In s u p p o r t of its argument, the government relied primarily on our holding in U n ite d States v. Jones.1 When the district court asked defense counsel if he had a n y response to the government's argument, counsel responded that he had h o p e d to call a witness, but that he had failed to procure her appearance so he " [d id n 't ] really have [any response]." T h e district court denied Lewis's motion to suppress, concluding that O ffic e r Phelan's warrantless search was justified by exigent circumstances. As t h e district court explained I do find that, given the facts that were testified to by Officer P h e la n , I do find that when he saw the gun dropped and when the d e fe n d a n t denied that there was a gun at all, I think it created a p r o b le m of officer safety. Officer Phelan took appropriate action to c u ff both the defendant and I understand the woman there at the s c e n e and who I understand would have been the witness and in d o in g that he acted appropriately to secure officer's safety. That g a v e him exigent circumstances to obtain the gun, that he

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239 F.3d 716 (5th Cir. 2001).

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No. 09-50324 d e t e r m in e d that the defendant had a felony conviction and that gave h im probable cause for the arrest. So, I overrule the Motion to S u p p r e s s based upon the facts presented by Officer Phelan. T h e case then proceeded to trial, at the conclusion of which the jury returned a g u ilt y verdict. At sentencing, the government argued for an upward departure, c o n t e n d in g that Lewis's criminal history was "extensive, lengthy and violent." Defense counsel opposed any upward departure, citing Lewis's compliance with a ll of Officer Phelan's instructions during the arrest and Lewis's "closed head in ju r y " resulting from a 2003 motorcycle accident, which counsel claimed " e x p la in [e d ] a lot of [Lewis's] behavior." When Lewis was given an opportunity t o speak, he implied that Officer Phelan had lied on the stand and that he was in n o c e n t of the offense of conviction. T h e district court sentenced Lewis to 78 months in prison, which was at t h e high end of the guidelines range. The district court explained that, in its ju d g m e n t and in light of the factors set forth in 18 U.S.C. § 3553(a), the advisory g u id e lin e s range was appropriate. Lewis timely filed an appeal, contending that (1 ) the warrantless search was unjustified, (2) his sentence is substantively u n r e a s o n a b le , as it is greater than necessary to satisfy the goals of 18 U.S.C. § 3 5 5 3 (a ), and (3) the firearm statute, 18 U.S.C. § 922(g)(1), unconstitutionally e x t e n d s federal power to reach the non-commercial possession of firearms. I I . LAW AND ANALYSIS A. W h e t h e r the district court erred when it denied Lewis's motion to s u p p r e s s the evidence " W e review a district court's denial of a motion to suppress by viewing the fa c t s in the light most favorable to the prevailing party (here, the government),

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No. 09-50324 a c c e p t in g the district court's factual findings unless clearly erroneous, and c o n s i d e r in g all questions of law de novo."2 "The presence of exigent

c ir c u m s t a n c e s is a finding of fact, which is reviewed for clear error." 3 "A finding is clearly erroneous only if the court is left with a definite and firm conviction t h a t a mistake has been committed."4 "Where a district court's denial of a s u p p r e s s io n motion is based on live oral testimony, the clearly erroneous s t a n d a r d is particularly strong because the judge had the opportunity to observe t h e demeanor of the witness."5 The district court's ruling should be upheld "if t h e r e is any reasonable view of the evidence to support it." 6 A warrantless entry into a residence is presumed unreasonable unless the o ffic e r s obtain consent or the entry is justified by both probable cause and e x ig e n t circumstances.7 "The possibility that evidence will be removed or

d e s t r o y e d , the pursuit of a suspect, and immediate safety risks to officers and ot h e r s are exigent circumstances that may excuse an otherwise unconstitutional in t r u s io n into a residence."8 "Because it is essentially a factual determination, t h e r e is no set formula for determining when exigent circumstances may justify

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United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995). Jones, 239 F.3d at 719. United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010). United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005). United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999). Jones, 239 F.3d at 719. Id. at 720.

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No. 09-50324 a warrantless entry."9 To assess whether an exigency justifies a warrantless s e a r c h , we have in the past looked to the following non-exhaustive list of factors: (1 ) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the reasonable belief that contraband will be removed; (3) the p o s s i b ilit y of danger to the police officers guarding the site while a search w a r r a n t is sought; (4) information indicating that the possessors of the c o n t r a b a n d are aware that the police are on their trail; and (5) the ready d e s t r u c t ib ility of the contraband.1 0 L e w is contends that Officer Phelan's entry into his apartment to secure t h e handgun was not justified by either probable cause or exigent c ir c u m s t a n c e s .1 1 In response, the government contends that the warrantless s e a r c h was justified pursuant to our holding in United States v. Jones.1 2 In that c a s e , several officers acting on a drug trafficking tip approached a residence to c o n d u c t a knock and talk.1 3 After a man opened the door and began speaking w it h the officers, one of the officers saw through the window that there was a h a n d g u n on the kitchen table within reach of another occupant.1 4 Out of concern

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United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997). Id.

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We note that Lewis does not challenge Officer Phelan's decision to pull him out of the apartment and handcuff him after he denied the presence of the gun. In Lewis's initial brief, he expressly concedes that "[w]hen [Officer Phelan] saw Lewis drop a gun and heard him deny having a gun, [Officer Phelan] was justified in pulling Lewis out of the apartment and handcuffing him for officer safety." Therefore, we need not consider this issue on appeal.
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239 F.3d 716, 720 (5th Cir. 2001). Id. Id.

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No. 09-50324 fo r his own safety and that of the other officers, he immediately walked into the r e s id e n c e and secured the handgun.1 5 When it later became clear that the o c c u p a n t was a convicted felon, the officer arrested him for being a felon in p o s s e s s io n of a firearm.1 6 In concluding that exigent circumstances justified the o ffic e r 's warrantless entry into the apartment, the court in Jones explained that " [a ] firearm that is located a short distance from an occupant in a residence lik e ly containing illegal narcotics presents an obvious safety risk to law e n fo r c e m e n t officers."1 7 Thus, particularly given the "highly deferential

s t a n d a r d of review," we held that the district court had not clearly erred in d e n y in g the motion to suppress.1 8 L ik e the officers in Jones, Officer Phelan approached a potentially highly v o la t ile situation. Unlike the officers in that case, however, Officer Phelan was, a t least initially, proceeding alone. Although he did not have any reason to b e lie v e that the apartment contained illegal narcotics, he was there to in v e s t ig a t e two separate 911 calls -- one made from within the apartment and a n o t h e r made from a neighboring apartment. Shortly thereafter, when Lewis lie d to Officer Phelan about having a handgun, Officer Phelan became justifiably c o n c e r n e d for his safety. And, as we have previously explained, "domestic

d is p u t e s often involve high emotions and can quickly escalate to violence." 19

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Id. Id. Id. at 720. Id. United States v. Rodriguez, 601 F.3d 402, 408 (5th Cir. 2010).

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No. 09-50324 O ffic e r s responding to reports of such disputes often make it their first priority " t o secure the scene and create a safe environment in which to investigate the r e p o r t ."2 0 In these situations, "[c]ommon sense dictates that a firearm that could b e accessed by someone at the scene and used against officers or others should b e unloaded, and at least temporarily, kept in a safe place." 2 1 H e r e , Officer Phelan reasonably began securing the scene by taking both L e w is and his girlfriend outside the apartment and waiting for backup. It is of n o moment that Officer Phelan decided, based on his experience, that it would b e safer for him to take Lewis and his girlfriend outside the apartment before g o in g in to secure the handgun only minutes later. As we have previously e x p la in e d , "[i]n evaluating exigency, it must be borne in mind that [courts] s h o u ld consider the appearance of the scene of the search in the circumstances p r e s e n t e d as it would appear to reasonable and prudent men standing in the s h o e s of the officers."2 2 "If reasonable minds may differ, [we will] not second g u e s s the judgment of experienced law enforcement offices concerning the risks o f a particular situation."2 3 Had Officer Phelan entered the apartment to secure t h e handgun at the first available moment, he might have subjected both himself a n d the occupants to considerably greater danger in an already volatile s itu a tio n . In fact, the situation did escalate quickly after Lewis and his

g ir lfr ie n d were both outside the apartment: Lewis's girlfriend grabbed Officer

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Id. Id. Blount, 123 F.3d at 838. Id. (internal citations and quotation marks omitted).

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No. 09-50324 P h e la n 's arm at about the same time that he discovered marijuana in Lewis's p ock et. F u r t h e r , we have previously held that officers responding to a similar d o m e s t ic disturbance report were justified in temporarily seizing a firearm in p la in view, even though the officers did not have probable cause to do so at the t im e of the seizure.2 4 In Rodriguez, we found persuasive that the officers had a r r iv e d at the scene of a domestic disturbance report, had quickly been alerted t o the presence of a shotgun in the residence, and had discovered that the 911 c a lle r had not reported the presence of children on the premises.2 5 In the instant c a s e , Officer Phelan arrived at the scene of a 911 hangup call that had been c o r r o b o r a t e d by a separate and independent disturbance call. Officer Phelan k n e w that Lewis had lied to him about the handgun, and, justifiably concerned fo r his safety, he could not be certain whether the occupants might also have lied a b o u t something else, such as whether there was someone else in the residence. Officer Phelan was therefore justified in temporarily securing the firearm in the in t e r e s t of officer safety until he could complete his investigation of the domestic d is t u r b a n c e report.2 6 Under these particular circumstances, and in light of the

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Rodriguez, 601 F.3d at 408. Id.

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A close review of the record raises considerable doubt as to whether Lewis preserved this issue for appeal by raising it before the district court. There, Lewis apparently contended only that Officer Phelan lacked probable cause to arrest him, not to enter the residence and secure the handgun. Regardless of Lewis's status as a felon, Officer Phelan doubtless had probable cause to arrest him based on the marijuana found in his pocket. In any event, the government has failed to address this point, and, for purposes of this appeal, we will assume that the issue of probable cause to enter and seize the gun is properly before us.

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No. 09-50324 h ig h ly deferential standard of review, we conclude that the district court did not e r r in denying Lewis's motion to suppress. B. W h e t h e r Lewis's sentence is substantively reasonable L e w is argues that his within-guidelines sentence of 78 months is s u b s t a n t iv e ly unreasonable because it is greater than necessary to satisfy the g o a ls of § 3553(a). Specifically, he suggests that the circumstances of his case w e r e "less serious than the typical felon-in-possession offense" and that it was e n tir e ly reasonable for him to pick up a gun before he opened the door given the la t e n e s s of the hour and the possibility that "robbers or some other threat" were waiting outside. Lewis also contends that his personal history and

c h a r a c t e r is t ic s as a hurricane evacuee and a person who had suffered a closed h e a d injury demonstrate that his 78-month sentence is substantively u n r e a s o n a b le . In response, the government urges that Lewis's sentence is p r e s u m p t iv e ly reasonable and that it is supported by his lengthy and violent c r im in a l history. I n determining a sentence, the district court is required to make an in d iv id u a liz e d assessment of the case based on the facts presented to it after fir s t calculating the advisory guidelines range of imprisonment.2 7 After doing t h a t and hearing arguments from the parties regarding the appropriate s e n te n c e , a district court must consider all of the § 3553(a) factors to determine w h e t h e r they support the requested sentences.2 8 We ultimately review a

s e n te n c e for reasonableness in light of the 3553(a) factors.2 9

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Gall v. United States, 552 U.S. 38, 49-51 (2007). Id. at 49-50. United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).

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No. 09-50324 T o conduct the reasonableness review, we must engage in a bifurcated a n a ly s is , first determining whether the district court committed any significant p r o c e d u r a l error with regard to the sentence.3 0 Then, if there is no procedural e r r o r , we review the substantive reasonableness of the sentence under a d e fe r e n t ia l abuse-of-discretion standard.3 1 If the district court imposes a

s e n te n c e within a properly calculated guidelines range, we shall apply a p r e s u m p t io n of reasonableness to the sentence, inferring that the district court c o n s id e r e d the relevant sentencing factors.3 2 A lt h o u g h the parties cite the abuse of discretion standard, we conclude t h a t here plain error review applies.3 3 Although defense counsel asked the court t o impose a below-guidelines sentence, he did not object when the court imposed it s within-guidelines sentence. As Lewis failed to object in the district court to h is within-guidelines sentence for the reason he raises on appeal, plain error r e v ie w applies.3 4 To show plain error, Lewis must show a forfeited error that is c le a r or obvious and that affects his substantial rights.3 5 T h e record in the instant case reflects that the district court made an in d iv id u a liz e d sentencing decision. The court correctly calculated the advisory g u id e lin e s range, listened to the parties' arguments and Lewis's statement, and

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Id. at 360. Id. Rita v. United States, 551 U.S. 338, 347 (2007). See United States v. Vonsteen, 950 F.2d 1086, 1091 (5th Cir. 1992). United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

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No. 09-50324 c o n s id e r e d the § 3553(a) factors. The district court then specifically recounted L e w is 's lengthy criminal history and noted his personal circumstances, including h is hurricane evacuation and his closed head injury. In formulating the

s e n te n c e , the district court cited the need for the sentence to promote respect for t h e law, provide just punishment for the offense, and to deter Lewis from e n g a g in g in future criminal conduct. Thus, Lewis has not provided an adequate r e a s o n to disturb the sentence selected by the district court.3 6 C. W h e t h e r 18 U.S.C. § 922(g)(1) unconstitutionally extends federal p o w e r to reach the non-commercial possession of firearms T o preserve the argument for further review, Lewis contends that § 9 2 2 (g )(1 ) is unconstitutional under United States v. Lopez because it regulates a c t iv it y that does not have a substantial effect on interstate commerce.3 7 As L e w is concedes, though, his argument is foreclosed by our precedent.3 8 I I I . CONCLUSION F o r the foregoing reasons, the judgment of the district court is, in all resp ects, A F F IR M E D .

Gall, 552 U.S. at 51 (explaining that even an appellate court's reasonable conclusion "that a different sentence [would be] appropriate is insufficient to justify reversal of the district court").
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514 U.S. 549 (1995).

See United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996) (holding that the reasoning in Lopez does not render § 922(g)(1) unconstitutional).

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