429 F.3d 282 (D.C. Cir. 2005), 04-3068, United States v. Thomas

Docket Nº:04-3068.
Citation:429 F.3d 282
Party Name:UNITED STATES of America, Appellee, v. Anthony THOMAS, Appellant.
Case Date:November 18, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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429 F.3d 282 (D.C. Cir. 2005)

UNITED STATES of America, Appellee,


Anthony THOMAS, Appellant.

No. 04-3068.

United States Court of Appeals, District of Columbia Circuit.

November 18, 2005

Argued Sept. 12, 2005.

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[Copyrighted Material Omitted]

Argued September 12, 2005.

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Appeal from the United States District Court for the District of Columbia, No. 03cr00458-01.

A. J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant. Michelle M. Peterson, Assistant Federal Public Defender, entered an appearance.

John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and John R. Fisher, Roy W. McLeese, III, and George P. Eliopoulos, Assistant U.S. Attorneys.

Before: Ginsburg, Chief Judge, and Sentelle and Rogers, Circuit Judges.


GINSBURG, Chief Judge.

Anthony Thomas challenges his conviction for unlawful possession of a firearm by a convicted felon, arguing the district court erred in failing to suppress guns and ammunition found during a "protective sweep" of his apartment. See Maryland v. Buie, 494 U.S. 325 (1990). In the alternative he challenges the mandatory application of the United States Sentencing Guidelines to determine his sentence. We affirm the order of the district court denying the motion to suppress but, in accordance with United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005), we remand the record for that court "to determine whether it would have imposed a different sentence, materially more favorable to the defendant, had it been fully aware of the post-Booker sentencing regime." Id. at 771.

I. Background

Between 6:00 and 6:30 one morning, five Deputy U.S. Marshals arrived at an apartment in Washington, D.C. to execute a warrant for the arrest of Anthony Thomas in connection with a parole violation. The marshals, with weapons drawn, knocked and announced their purpose and the door was opened.

The front door to Thomas' one-bedroom apartment opens immediately into a hallway. A foot or two to the left is the entrance to the living room and to the right are doorways off the hallway leading to the kitchen, bathroom, and bedroom. The bedroom door at the far end of the

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hall is 15 feet from the entrance to the apartment.

The first officers to enter the apartment followed Thomas from the hallway into the living room, where they found two other individuals. Meanwhile, Deputy Marshal William Martin and a colleague searched the kitchen, the bathroom, and the bedroom in order "[to make] sure there was nobody else in the immediate area." Upon entering the bedroom, the officers first looked under the bed to see if anyone was hiding there, then turned their attention to an open closet. In plain view on the top closet shelf they saw a shotgun shell and a handgun atop a stack of clothes. At the bottom of the closet, they saw a "big bulked up blanket or comforter," which was "dome shaped" and approximately three feet high. Deputy Martin testified that "a person could have easily fit underneath the comforter." Upon removing the comforter, the officers discovered an assault rifle and a shotgun. From the time the officers entered the apartment until they found the firearms, "not more than a minute" had passed.

Thomas was indicted on a single count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). He moved to suppress as the fruits of an unlawful search both the weapons and ammunition seized from his bedroom and the subsequent statement he made admitting possession of the firearms. After the close of evidence at the suppression hearing, Thomas raised an alternative ground for...

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