661 F.3d 1299 (10th Cir. 2011), 10-1461, United States v. Bass

Docket Nº:10-1461.
Citation:661 F.3d 1299
Opinion Judge:HARTZ, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Christopher Michael BASS, Defendant-Appellant.
Attorney:John F. Sullivan, III, The Law Office of John F. Sullivan, III, P.C., Denver, CO, for Defendant-Appellant. Andrew A. Vogt, Assistant United States Attorney, (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.
Judge Panel:Before KELLY, MURPHY, and HARTZ, Circuit Judges.
Case Date:November 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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661 F.3d 1299 (10th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Christopher Michael BASS, Defendant-Appellant.

No. 10-1461.

United States Court of Appeals, Tenth Circuit.

November 23, 2011

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[Copyrighted Material Omitted]

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John F. Sullivan, III, The Law Office of John F. Sullivan, III, P.C., Denver, CO, for Defendant-Appellant.

Andrew A. Vogt, Assistant United States Attorney, (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.

Before KELLY, MURPHY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

A jury of the United States District Court for the District of Colorado convicted Defendant Christopher Bass on one count of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He was sentenced to 94 months in prison and 3 years of supervised release. On appeal he contends (1) that the search that discovered the firearm was unlawful because (a) the government failed to show that his girlfriend's consent to search his trailer was voluntary and (b) his girlfriend lacked authority to consent to the search of a zipper bag in the trailer; (2) that his sentence violates the Sixth Amendment because he received Sentencing Guidelines offense-level enhancements for alleged misconduct that he was acquitted of by the jury; and (3) that the evidence was insufficient to sustain the conviction. We have jurisdiction under 28 U.S.C. § 1291 and affirm.1

I. BACKGROUND

A. The Investigation

We take our factual summary from the evidence at the pretrial hearing on Defendant's motion to suppress.

Upon receiving a tip, Colorado Springs Police Officers Jessica Kundert and Shane Alvarez set up surveillance of Defendant's residence shortly after 1:00 p.m. on February 25, 2009. During their surveillance they observed a male, later identified as Defendant, leaving the area in a vehicle. They also observed a woman exiting the residence with what appeared to be personal belongings and putting them in a car trunk, although she did not leave the area. The officers followed Defendant. After events not relevant on appeal, officers arrested Defendant for possessing drug paraphernalia, searched his vehicle incident to the arrest, found methamphetamine inside the vehicle, and took Defendant to the police station.

Officers Kundert and Alvarez returned to the trailer at 3:00 p.m. to investigate further. When they knocked on the door, Jessica Ramsey (the woman whom they had observed earlier) answered, stepping outside to talk to them on the front porch.

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She told the officers that she lived in the trailer with her boyfriend, Christopher. She had used methamphetamine the previous evening and earlier that day, but she did not appear to be under the influence. Although she testified that she sometimes had difficulty deciding whether she was high or " normal," she said that she was not high when the officers were there. R., Vol. 1 pt. 3 at 149.

Ms. Ramsey was initially hesitant to talk with the officers. She said that she needed to speak with the homeowner, and tried to call Defendant. The officers informed her that he was in custody. She became upset and began crying. But she told the officers that she was relieved because Defendant had been verbally abusing her, and she referred to the officers as angels.

The officers told her that they had found Defendant with drugs and a weapon (which was untrue— no weapon had actually been discovered) and that they wanted to search the residence for anything illegal. Officer Alvarez asked Ms. Ramsey if there was anything illegal in the residence. She said that she did not know, but that Defendant sometimes hid things.

At various times before the hearing, Ms. Ramsey had given conflicting statements about what happened next, but the district court ultimately credited her testimony (1) that she initially refused consent to a search, but when she learned that Defendant was in custody, she started to cooperate with the officers; and (2) that while she and the officers were still talking on the porch, she orally consented to their request to search the entire trailer for illegal items. The officers did not immediately give Ms. Ramsey the written consent form because it was in the officers' vehicle and because she was upset. After the officers started searching, they explained the written consent form to her and she signed it. Based on his initial observations inside the trailer, Officer Alvarez asked for assistance, and several other officers arrived to join the search. During the search Ms. Ramsey provided information about firearms and drugs that she had seen in the trailer, and she told the officers that Defendant stored firearms in black bags, satchels, or backpacks. Officer Alvarez found a black leather zipper bag in the living room. Upon opening it, he found a revolver, a computer, a digital scale, an adult magazine, and CDs. He did not ask Ms. Ramsey who owned the bag before opening it.

Ms. Ramsey also told officers that Defendant stored firearms in a neighbor's shed. The neighbor took the officers to the shed and unlocked it for them. Inside the shed was a long plastic rifle case, which contained two rifles.

B. Judicial Proceedings

Defendant was charged with two counts of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1)— one count for the revolver found in the bag, and one count for the two rifles found in the shed. Defendant moved to suppress much of the evidence, including the revolver found in the black bag. The district court denied the motion. With regard to the revolver, it ruled that Ms. Ramsey's consent to search was voluntary and that she had actual and apparent authority to consent.

The jury found Defendant guilty on Count One (the revolver) but not guilty on Count Two (the two rifles). In computing Defendant's offense level under the Sentencing Guidelines, the district court began with a base offense level of 14, see USSG § 2K2.1(a)(6), and added a 2-level enhancement for possession of three or more firearms, see id. § 2K2.1(b)(1)(A), a 2-level enhancement because a firearm was stolen, see id. § 2K2.1(b)(4)(A) and a 4-level enhancement for use or possession of a

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firearm in connection with another felony offense, see id. §...

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