661 F.3d 709 (1st Cir. 2011), 10-2412, United States v. Paneto

Docket Nº:10-2412.
Citation:661 F.3d 709
Opinion Judge:SELYA, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Dwight PANETO, Defendant, Appellant.
Attorney:Mary S. McElroy, Assistant Federal Defender, for appellant. Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.
Judge Panel:Before LIPEZ, SELYA and HOWARD, Circuit Judges.
Case Date:November 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 709

661 F.3d 709 (1st Cir. 2011)

UNITED STATES of America, Appellee,


Dwight PANETO, Defendant, Appellant.

No. 10-2412.

United States Court of Appeals, First Circuit.

November 22, 2011

Heard Nov. 8, 2011.

Page 710

[Copyrighted Material Omitted]

Page 711

Mary S. McElroy, Assistant Federal Defender, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before LIPEZ, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

Having been found guilty of knowingly and intentionally possessing a firearm as a convicted felon, defendant-appellant Dwight Paneto complains that the lower court erred both in refusing to suppress certain evidence and in calculating his guideline sentencing range (GSR). His merits claim raises a knife-edge question concerning the scope of the plain view exception to the warrant requirement of the Fourth Amendment, and his sentencing claim requires us to clarify the reach of USSG § 2K2.1(b)(6). Concluding, as we do, that no reversible error occurred, we affirm the judgment below.


We sketch the origins and travel of the case, reserving more exegetic factual detail for our later discussion of the assignments of error.

On August 19, 2009, the narcotics unit of the Providence, Rhode Island, Police Department mounted an operation designed to probe street-level drug trafficking in a crime-riddled neighborhood of the city. Events that took place in the course of the operation (to which we shortly shall return) led to a plainclothes officer's purchase of drugs through a third party and a subsequent confrontation at the defendant's home. After seizing drugs, a gun, and ammunition, they took the defendant into custody.

As matters turned out, the defendant had a number of prior felony convictions. With this information in hand, a federal grand jury returned a two-count indictment charging the defendant with being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), and possessing with intent to distribute cocaine base (crack cocaine), see 21 U.S.C. § 841(a)(1). The defendant moved unsuccessfully to suppress the evidence recovered during the search of his home. A trial jury rendered a split decision; it convicted the defendant on the gun charge but acquitted him on the drug-trafficking charge. The district court imposed an 84-month incarcerative sentence. This timely appeal followed.


We bifurcate our ensuing discussion, turning first to the defendant's claim that the district court erred in denying his suppression motion and then proceeding to address his claim of sentencing error.

A. Suppression.

In reviewing the denial of a motion to suppress, " we accept the [trial] court's findings of fact unless clearly erroneous and evaluate its legal conclusions de novo." United States v. Chhien, 266 F.3d 1, 5 (1st Cir.2001). This is a standard that counsels respect for both the trial court's factual findings and the inferences drawn by the court from the discerned facts. See United States v. Hughes, 640 F.3d 428, 434 (1st Cir.2011).

For purposes of this appeal, the events leading up to the defendant's arrest are of paramount importance. We rehearse the relevant facts as supportably found by the

Page 712

district court. See United States v. Lee, 317 F.3d 26, 30 (1st Cir.2003).

The central figure in the police action was Detective Nicholas Ludovici. During the run-up to the arrest, Ludovici— dressed in civilian garb— was cruising the neighborhood in an unmarked car. He intended to drive around, aimlessly and at a slow rate of speed, in anticipation that someone would think him to be looking for a " fix" and offer to sell him drugs. Other officers, supporting Ludovici's mission, were lurking nearby.

In the early afternoon, a stranger (later identified as Deshawn Owens) hailed Ludovici from the sidewalk. Ludovici pulled over to the curb, Owens got into the car, and Ludovici told him that he was looking for a " straight 20" (street slang for a $20 bag of crack cocaine). Owens replied that he would take Ludovici to his " boy's house" and identified his " boy" as " D." Owens then directed Ludovici to a house at 103 Laura Street. Since Ludovici, unbeknownst to Owens, had activated his cellular telephone's two-way function, the conversation between the two men was overheard by three other officers, all of whom proceeded to the designated destination.

Once Ludovici had pulled to the curb on Laura Street, Owens asked him for the purchase money. Ludovici gave Owens a $20 bill that he had pre-marked with a small ink slash through the zero in the figure " 20" appearing in the upper right corner. Owens exited the car, entered the building, left briefly to visit a nearby shop, reentered the house, and eventually returned to the car. Once inside, he handed Ludovici a clear plastic bag containing crack cocaine.

Ludovici started to drive Owens back toward their original meeting place. En route, he covertly signaled his support crew. The other officers joined him and took Owens into custody. Thereafter, three of them (including Ludovici) repaired to Laura Street. They walked to the front door of the multi-family dwelling at 103 Laura Street. When they entered the structure, they observed the landlord painting in the stairwell. Ludovici, displaying his badge, inquired whether anyone had recently gone in and out. The landlord pointed to the third-floor apartment.

The officers decided to conduct a " knock and talk," a maneuver in which officers who have not yet secured a warrant go to investigate a suspected crime and determine whether the suspect will cooperate. See Hughes, 640 F.3d at 431. They knocked on the door of what proved to be the defendant's apartment. The defendant opened the portal, the officers identified themselves, and the defendant invited them in. The defendant was not alone; his girlfriend, two of his children, and a teenage family friend were also inside the residence. A menagerie of reptiles and other animals completed the ensemble.

The front door of the apartment opened into what appeared to be the living room. Once the defendant ushered the officers into a side room, Ludovici noticed a $20 bill on a coffee table. He immediately believed this to be the marked bill that he had given Owens to fund the drug buy and said as much. He bent to pick it up, confirmed the presence of the mark, and seized it. He proceeded to administer Miranda warnings to the defendant. See Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The defendant protested that the money was not his and told the officers that they were free to search the apartment. He signed both a waiver of his Miranda rights and a consent-to-search form.

Page 713

As the search progressed, Ludovici picked up and opened a small canister perched on the coffee table. He found two more bags of cocaine (similar to the one that he had just purchased). With this contraband in hand, he asked the defendant if he had anything else hidden in the apartment. The defendant replied that there was a gun in a safe. The safe, located in a...

To continue reading