U.S. v. Baskin, 03-1695.

• Decision Date: 07 September 2005
• Docket Number: No. 03-1695.,03-1695.
• Citation: 424 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Leonard BASKIN, a/k/a Rocky, a/k/a Rock, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

424 F.3d 1

UNITED STATES of America, Appellee, v. Leonard BASKIN, a/k/a Rocky, a/k/a Rock, Defendant, Appellant.

No. 03-1695.

United States Court of Appeals, First Circuit.

Heard March 9, 2005.

Decided September 7, 2005.

Stephen Hrones, with whom Hrones & Garrity was on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before BOUDIN, Chief Circuit Judge, CAMPBELL and CYR, Senior Circuit Judges.

CYR, Senior Circuit Judge.

Leonard Baskin appeals from the judgment of conviction and sentence entered against him for (i) possessing cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1), and (ii) being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). We affirm.

I BACKGROUND

The record facts are recited in the light most favorable to the district court ruling denying Baskin's motion to suppress the evidence seized pursuant to a warrantless search. See United States v. Antrim, 389 F.3d 276, 278 (1st Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1692, 161 L.Ed.2d 506 (2005). On April 20, 2001, Baskin and an associate kidnapped two underage girls, who had run away from a group home in Berkley, Massachusetts, then brought them to a motel room in Swansea, Massachusetts, where both girls were detained at gunpoint and one girl was raped.

En route to the motel, Baskin had stopped to sell drugs from his car. He also kept cocaine in the motel room. One of the girls, identified in the record as "TP," escaped from the motel room on April 21, and went to the local police. The first reports to the police were received at 12:30 a.m. on April 23.

The police, who had reason to believe that TP had contrived the story, and who were not specially trained to deal with hostage situations, decided to conduct further investigation of TP's story before attempting a forced entry of the motel room to rescue the other girl, identified in the record as "AC." Upon placing the motel room under surveillance, the police decided that it would be prudent to interview TP in person to assess her credibility. The interview produced sufficient details to persuade the police that TP was telling the truth. These investigations were not concluded until 4:30 a.m. After determining that probable cause and exigent circumstances existed to enable a warrantless forced entry to the motel room, the police broke down the door at 5:00 a.m., whereupon they discovered Baskin and two females. While placing Baskin under arrest, an officer flipped over a mattress and box spring on a bed, disclosing a handgun and drugs.

On September 5, 2001, Baskin was indicted for possessing cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and possessing a firearm in furtherance of a drug crime, id. § 924(c)(1). Baskin subsequently moved to suppress evidence seized in the warrantless search of the motel room. Following an evidentiary hearing, the district court denied the suppression motion. After a five-day jury trial, Baskin was acquitted on the § 924(c)(1) count, but convicted on the § 841(a)(1) and § 922(g)(1) counts. The district court ultimately sentenced Baskin to 180 months' imprisonment and 96 months' supervised release. Baskin now appeals the conviction, as well as the sentence.

II DISCUSSION

A. The Motion to Suppress

Baskin contests the rejection of his pretrial motion to suppress evidence seized from the motel room during the warrantless search, especially the evidence discovered beneath the mattress and box spring. Although the district court relied upon several independent grounds, we affirm on its threshold determination that Baskin failed to establish that he had both a subjective and an objectively reasonable expectation of privacy in the motel room and its contents, such as would afford sufficient support for his personal exercise of the rights guaranteed under the Fourth Amendment. See United States v. Romain, 393 F.3d 63, 68 (1st Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 2924, 162 L.Ed.2d 308 (2005).

The evidence proffered to substantiate Baskin's privacy expectations was contained in the Baskin affidavit, where he contended that one "John Marshall" had rented the motel room for him, that Marshall did not use the room but allowed Baskin to live there for the week, that Marshall had provided Baskin with the only room key, thus Baskin exercised control over the use of the premises. See United States v. Sanchez, 943 F.2d 110, 114 (1st Cir.1991) (noting that defendant may establish Fourth Amendment "standing" through evidence that premises' owner gave him permission to use the premises). Yet, when the government attempted at the motion hearing to cross-examine Baskin regarding the evidence contained in his affidavit, he invoked the Fifth Amendment right against self-incrimination, and refused to respond to the questions put to him. Whereupon, the district court struck the Baskin affidavit.

The district court did not abuse its discretion. See United States v. Bartelho, 129 F.3d 663, 673 (1st Cir.1997). "A trial judge may strike a witness's direct testimony if he flatly refuses to answer cross-examination questions related to `the details of his direct testimony,' thereby undermining the prosecution's ability `to test the truth of his direct testimony.'" Id. (citation omitted).

Although Baskin responds that the district court could have fashioned a less harsh remedy, the trial court's choice of remedy is not grounds for reversal unless it constituted a manifest abuse of its discretion, see id. at 674, whereas this trial record amply supported the district court's discretionary selection of remedy. The details pertaining to John Marshall and his alleged rental arrangement with Baskin were unquestionably a proper subject for government cross-examination. As Baskin offered no other evidence of either a subjective or an objectively reasonable expectation of privacy in the motel room, other than his affidavit, he has failed to establish any ground for asserting a Fourth Amendment right. See Romain, 393 F.3d at 68; United States v. Starks, 40 F.3d 1325, 1333 (1st Cir.1994).

B. The Guidelines Sentence

Following this appeal, the United States Supreme Court held that the federal sentencing guidelines were advisory, rather than mandatory. United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). As Baskin raised no constitutional challenge below to the Sentencing Guidelines themselves, we review these Booker claims for plain error only. See United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005).¹

In instances of unpreserved Booker error, the defendant "must point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to the defendant under the new `advisory Guidelines' Booker regime." Id.² Baskin has not met that threshold burden.

The district court sentenced Baskin at the middle (viz., 180 months) of the applicable guidelines sentencing range (168-210 months). "When, under a mandatory guidelines regime, a sentencing court has elected to sentence the defendant substantially above the bottom of the range, that is a telling indication that the court, if acting under an advisory guidelines regime, would in all likelihood have imposed the same sentence." United States v. Gonzalez-Mercado, 402 F.3d 294, 304 (1st Cir.2005); see United States v. McLean, 409 F.3d 492, 505 (1st Cir.2005). Here, the district court, acting well within the limits of its discretion under the mandatory guidelines, could have reduced the Baskin sentence by one full year. Instead, however, the court explicitly characterized the sentence as "appropriate," adding that it was designed to "protect society from danger." See United States v. Carpenter, 403 F.3d 9, 13-14 (1st Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 2284, 161 L.Ed.2d 1076 (2005); see also United States v. Mercado, 412 F.3d 243, 253 (1st Cir.2005).³

Additionally, Baskin contends that the district court might have considered mitigating factors, such as family ties and responsibilities, which constitute discouraged grounds for departure under the Guidelines. See U.S.S.G. § 5H1.6. Although the district court permitted Baskin to recite the details of his family background and responsibilities during the sentencing proceedings, the district court nevertheless sentenced him at the middle of the guideline sentencing range. See United States v. Martins, 413 F.3d 139, 154 (1st Cir.2005) (rejecting same argument, and noting that "[n]early all the [family circumstances] factors to which [defendant] alludes were limned in the PSI Report, yet the district court chose not to speak to them at sentencing"); McLean, 409 F.3d at 505 (affirming sentence at middle of guideline range despite evidence of mitigating circumstances not cognizable under mandatory guidelines regime); United States v. Brennick, 405 F.3d 96, 102 (1st Cir.2005). Similarly, on appeal Baskin proffers no pertinent information regarding his family circumstances which had not been before the district court at sentencing. See Martins, 413 F.3d at 154 (considering proffer of new mitigating evidence on...