225 F.3d 254 (2nd Cir. 2000), 00-1152, United States v Grimes

Docket Nº:Docket No. 00-1152
Citation:225 F.3d 254
Party Name:UNITED STATES OF AMERICA, Appellee, v. CHARLES GRIMES, Defendant-Appellant.
Case Date:August 21, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 254

225 F.3d 254 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee,

v.

CHARLES GRIMES, Defendant-Appellant.

Docket No. 00-1152

United States Court of Appeals, Second Circuit

August 21, 2000

Argued: August 9, 2000

In this appeal, appellant Charles Grimes asks that we reverse the decision of the United States District Court for the Western District of New York (Siragusa, Judge) denying his motion to suppress evidence, denying his motion to withdraw his guilty plea, applying a four-level sentence enhancement under U.S.S.G. § 2K2.1(b)(5), and applying a two-level sentence enhancement under U.S.S.G. § 3C1.1.

Affirmed.

Page 255

BRADLEY E. TYLER, Assistant United States Attorney (DENISE E. O'DONNELL, United States Attorney for the Western District of New York) Rochester NY, for Appellee.

WILLIAM CLAUSS, Federal Public Defender's Office (JAY S. OVSIOVITCH, research and writing specialist) Rochester, NY, for Defendant-Appellant.

Before: CALABRESI, CABRANES, and POOLER, Circuit Judges.

PER CURIAM:

Defendant-appellant Charles Grimes appeals from a judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge), upon Grimes's plea of guilty to charges of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). Grimes asks that we reverse the district court's finding that searches of his residence at 37 Linnet Street in Rochester, New York on the day of his arrest did not violate his Fourth Amendment rights. He also asks that we reverse the district court's denial of his motion to withdraw

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his guilty plea and that we find the district court's application of sentence enhancements under United States Sentencing Guidelines § 2K2.1(b)(5) and § 3C1.1 erroneous.

BACKGROUND

On May 23, 1991, defendant Charles Grimes was convicted of robbery in the first degree in Monroe County Court in Rochester, New York. After serving his sentence for this crime, Mr. Grimes was released from the Oneida Correctional Facility in May 1996 and was assigned to the supervision of Parole Officer Cynthia Mooney in January 1998. On January 11, 1999, Grimes got in touch with Mooney and informed her that he had had contact with the police on January 7 and January 9.1 Grimes explained to Mooney that on both occasions he was ticketed for operating a motor vehicle without a license but that he had not been taken into custody. On January 12, 1999, Mooney was called by a Rochester Police officer who provided more information about Grimes's run-in with the police. Mooney was told that Grimes fled from the police when they attempted to pull over his vehicle, that he was later taken into custody, and that he was suspected of being involved in numerous robberies and of possessing a gun. She was told that a ski mask was discovered in Grimes's car after he was pulled over and that he had been arrested and released on January 11, 1998.

Mooney then discussed Charles Grimes's parole status with her superior, Parole Officer Phillip Overfield, and noted that Grimes was not in compliance with the conditions of his parole due to positive drug tests, failure to comply with the conditions of a drug treatment program, failure to attend a required education program, and lying to his parole officer about his contact with the police. The parole officers issued a Violation of Parole Warrant and decided to execute it "as soon as possible."

On January 12, 1999, at approximately 2:30 p.m., Parole Officer Mooney and five other parole officers went to Charles Grimes's residence at 37 Linnet Street in Rochester in order to execute the warrant. Upon arriving at the Grimes residence, the officers encountered LaTonya Grimes, the defendant's sister, on the front lawn. Ms. Grimes immediately entered the house, slammed the door shut, and locked it. She told the officers that she would get Charles for them and that they "could have him." Over the next five to eight minutes, the parole officers "heard a great deal of walking around upstairs, loud thumping, [and] music . . . turned up very loud." Ms. Grimes yelled to the officers that her brother would be coming out, but that the officers would not be permitted to enter the house. She warned the officers that she had a Rottweiler and that she would set the dog on them if they tried to come in. The parole...

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