322 F.3d 18 (1st Cir. 2003), 02-1338, United States v. Weems

Docket Nº:02-1338.
Citation:322 F.3d 18
Party Name:UNITED STATES, Appellee, v. Ike WEEMS, Defendant, Appellant.
Case Date:March 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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322 F.3d 18 (1st Cir. 2003)

UNITED STATES, Appellee,

v.

Ike WEEMS, Defendant, Appellant.

No. 02-1338.

United States Court of Appeals, First Circuit.

March 6, 2003

Heard Feb. 5, 2003.

Rehearing Denied April 7, 2003.

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[Copyrighted Material Omitted]

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Robert B. Mann, with whom Mann & Mitchell was on the brief for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Dulce Donovan, Assistant United States Attorney, were on brief for appellee.

Before TORRUELLA, LYNCH, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

Ike "True" Weems was convicted of being a felon in possession of a firearm, a revolver which fired shotgun shells. See 18 U.S.C. § 922(g)(1) (2000). He was sentenced to 282 months of imprisonment. On appeal, Weems argues that the district court erred in denying his motion for judgment of acquittal and his motion to suppress. He also appeals various aspects of evidentiary rulings, the jury instructions, and the sentencing. We affirm.

We reject the argument that Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), overruled prior law and now requires that the interstate commerce nexus of § 922(g) be met by proof that it was the defendant who transported the weapon beyond state lines. We also reject the argument that the phrase "not less than fifteen years" for sentences under the Armed Career Criminal Act (ACCA), see 18 U.S.C. § 924(e)(1), sets a maximum as well as a minimum sentence.

I.

A brief summary of the facts sets the stage. On December 11, 2000, the date

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Weems was arrested, the police had information that he was wanted on two state arrest warrants; that he had been seen by an informant carrying the firearm at issue here earlier that day; that he was suspected of armed robbery; and that he was believed to be dealing drugs from a house at 11 Padelford Street in Providence, Rhode Island, where he had been seen regularly. After receiving a report from a confidential informant that Weems was at the address, the police went quickly to the house without obtaining a separate search warrant. There, they saw Weems through a window and entered the house. Weems hid in the attic but his feet went through the attic floor to the bedroom below, and the police assisted his delivery into the room by pulling on his legs while he clung to the rafters. Weems fell on a bed and there was a tussle. Within seconds the police spotted a gun on the bed where Weems had fallen--the same unusual gun, a "Thunder Five" revolver that could fire shotgun shells, with which he had been seen earlier that day. He was arrested.

II.

We start with the appeal from the denial of the motion to suppress, because its outcome affects the appeal from the motion for judgment of acquittal.

A. The Motion to Suppress

We describe the facts found by the district court judge, which were established at a two-day evidentiary hearing.

Weems moved to suppress the evidence seized at 11 Padelford Street, including the gun. The basis for the motion was that the initial entry into the residence, which was rented by Katisha Smith, was not justified by the state arrest warrant for Weems; that the police had used the arrest warrant as a pretext to enter the house and did not have a search warrant as was needed; and that, in any event, the seized gun should be suppressed because it was not in plain view and it was found pursuant to an unauthorized search after a protective sweep had already taken place.

The district court assumed that the entry into the house was valid and held it was irrelevant whether the house was Weems's dwelling or only Smith's dwelling. The court stated, "The only issue here is whether the outstanding arrest warrant was used by the agents as a pretext for conducting a warrantless search and whether the items seized were the fruits of such a warrantless search" as opposed to a protective sweep. The court found that the gun was in plain view and was lawfully seized pursuant to a protective sweep. 1 See Maryland v. Buie, 494 U.S. 325, 334-36, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Indeed, in discussing the seizure of the gun, the court referred to concerns for the officer's safety "because Mr. Weems had a lengthy criminal record for violent crimes, armed robbery." The district court did suppress other evidence taken from the house, which the court found was not seized pursuant either to Weems's arrest or to a protective sweep.

When the officers arrived at the address, they knew that Weems had a lengthy criminal record, that there were two state arrest warrants for him, and that Weems had been seen carrying the gun earlier that day. One warrant was on a suspended sentence violation related to a prior sentence for felony assault with a dangerous weapon. They also had information that "True" Weems and "Understanding"

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Yates had conducted armed robberies in the Providence area; the armed robbers were known as the "Five Percenter Group." In late October, a reliable informant told Agent Edward Troiano of the federal Bureau of Alcohol, Tobacco, and Firearms that Weems had been staying off and on at 11 Padelford Street for the past few weeks or months and was dealing drugs from that address. In early November the police arrested Yates, but his companions, including Weems, escaped.

On December 11, an informant told Troiano that Weems was then inside the Padelford Street home and that he was armed with his shotgun revolver. Troiano contacted Providence police, and went with police officers to the address about half an hour later. They did not try to obtain a search warrant for the residence.

Outside the building, Troiano encountered Smith, who lived there, and told...

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