U.S. v. Brown, 05-2830.

• Decision Date: 07 December 2007
• Docket Number: No. 05-2830.,No. 06-1306.,05-2830.,06-1306.
• Citation: 510 F.3d 57
• Parties: UNITED STATES of America, Appellee, Cross-Appellant, v. Dennis W. BROWN, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — First Circuit

510 F.3d 57

UNITED STATES of America, Appellee, Cross-Appellant, v. Dennis W. BROWN, Defendant-Appellant, Cross-Appellee.

No. 05-2830.

No. 06-1306.

United States Court of Appeals, First Circuit.

Heard September 14, 2007.

Decided December 7, 2007.

Joan M. Griffin, with whom Benjamin A. Goldberger and McDermott Will & Emery LLP, were on brief, for defendant-appellant/cross-appellee.

Donald L. Cabell, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee/cross-appellant.

Before TORRUELLA and HOWARD, Circuit Judges, and DELGADO-COLÓN,^* District Judge.

TORRUELLA, Circuit Judge.

On July 15, 2004, a jury found Dennis W. Brown ("Brown") guilty of being a felon in possession of four firearms and 200 rounds of ammunition in violation of 18 U.S.C. § 922(g)(1). Before trial, the district court had denied Brown's motions to suppress certain evidence and exclude certain testimony. Brown claims error in these denials, and in the manner in which the district court empaneled the jury.

On February 24, 2005, the district court found Brown subject to sentencing under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and handed down a sentence of 180 months' imprisonment. On Brown's motion, the district court resentenced him on July 7, 2005 to take account of the Supreme Court's March 2005 holding in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The district court found that, in light of Shepard, Brown did not now qualify as an armed career criminal, and handed down a new sentence of sixty-three months. The Government cross-appeals.

After careful consideration, we affirm Brown's conviction. We also affirm his new sentence, but for a reason other than that given by the district court.

I. Background¹

On June 18, 2002, Scott DeVlaminck was arrested when he attempted to sell four firearms with ammunition to a cooperating witness. As police officers converged upon DeVlaminck, he immediately identified Dennis Brown as the source of the guns. He stated that Brown had offered to pay him half the proceeds of the sale, and that Brown expected him to return immediately with the money. DeVlaminck told the officers that Brown had retrieved the guns from his garage at 88 Forest Street in Salisbury, Massachusetts.

Lt. Thomas Coffey and Cpl. David L'Esperance had participated in a major drug investigation involving Brown in the early 1990s, and knew him and his voice from personal debriefings and from listening to hundreds of hours of intercepted communications. Coffey instructed DeVlaminck, who had been placed under arrest, to call Brown on DeVlaminck's cell phone and pretend the buyer had demanded a lower price. As Coffey and L'Esperance huddled close to DeVlaminck and listened in, Brown instructed DeVlaminck to return with as much money as he could get from the buyer. Shortly thereafter, five police cruisers converged upon the Brown family compound, which contained several buildings including a house owned by Brown's brother, and a garage with a workshop Brown used as a motor-repair business. Brown resided permanently in a trailer near the garage. The complex of buildings was obscured by vegetation and was thus not visible from the road; the only access to it was an unobstructed 400-foot gravel driveway leading to the rear of the home. No signs directed visitors to the home or the motor-repair shop. As the officers reached the complex of buildings, Brown emerged from the garage carrying a cell phone. Coffey placed Brown under arrest and seized the phone. The officers did not have an arrest warrant.² There is conflicting and contested evidence that, at some point that evening, Coffey called Brown's cell phone from his own with the number DeVlaminck had provided, and that Brown's cell phone rang.

The Government filed a one-count indictment charging Brown with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Brown claimed that his arrest was illegal, and moved to suppress the cell phone, any information on the cell phone, and any statements made by him at the scene or at booking. The district court held a hearing at which Coffey, L'Esperance, and another officer testified. In their testimony, Coffey and L'Esperance stated that, during the controlled cell phone conversation, they recognized Brown's voice as the one they had heard hundreds of times over the course of the drug investigation involving him in the early 1990s; L'Esperance had also had many face-to-face conversations with Brown. The district court denied the motion to suppress in a written decision, finding that (1) there was probable cause to arrest Brown; (2) the officers did not need a warrant to arrest Brown because he was not in his home or the curtilage thereof; and (3) even if he were in the curtilage, the officers' reasonable fear that he would conceal evidence if DeVlaminck did not return quickly provided exigent circumstances and dispensed with the need for an arrest warrant.

Brown made a number of motions in limine, two of which are at issue in this appeal. In the first motion, Brown sought to exclude the anticipated testimony of Coffey and L'Esperance that they recognized him as the person speaking with DeVlaminck during the controlled cell phone conversation. Brown claimed that evidence of these officers' identification of his voice would be unreliable and unfairly prejudicial, particularly considering that he had, in the interim, undergone cancer surgery resulting in the removal of parts of his tongue. The district court denied the motion. In the second motion in limine, Brown sought to exclude Coffey's anticipated testimony that he called Brown's cell phone and that it rang. The district court also denied this motion.

On July 15, 2004, the jury found Brown guilty of possessing the guns and ammunition seized from DeVlaminck. In the Presentence Report ("PSR"), the probation officer calculated that Brown's Guidelines Sentencing Range ("GSR") was fifty-one to sixty-three months. The PSR also took into account what the probation officer determined were three prior convictions: (1) a 1980 conviction for intimidation of a witness, in violation of Mass. Gen. Laws ch. 268, § 13B; (2) a 1982 conviction for assault and battery on a police officer ("ABPO"), in violation of Mass. Gen. Laws ch. 265, § 13D; and (3) a 1992 federal conviction for distributing cocaine. As a result of these three predicate convictions — one for a "serious drug offense"³ and two for "violent felonies," see 18 U.S.C. § 924(e)(1) — the PSR concluded that Brown qualified as an armed career criminal ("ACC") under the ACCA. Brown was accordingly subject to a fifteen-year mandatory minimum sentence. Id. Brown vigorously challenged his status as an ACC before the district court, arguing on both legal and factual grounds that neither the witness-intimidation conviction nor the ABPO conviction could be considered as ACCA predicates; among Brown's arguments was that the Government had failed to prove the fact of his 1982 ABPO conviction.⁴

On February 24, 2005, the district court adopted the PSR's recommendations and sentenced Brown as an ACC to fifteen years. On March 1, 2005, the Supreme Court handed down Shepard, and on April 1, 2005, Brown moved for resentencing. He argued that, in determining that he committed the violent varieties of witness intimidation and ABPO, the district court had engaged in judicial factfinding of the type now prohibited by Shepard. The district court agreed, quashed Brown's sentence, and ordered that a resentencing hearing be scheduled.

At the ensuing November 10, 2005 resentencing hearing, the parties debated whether Brown could still be considered an ACC, and the focus was on whether Brown's ABPO conviction qualified as an ACCA predicate.⁵ The Government argued that Brown could be sentenced as an ACC because, according to United States v. Fernández, 121 F.3d 777, 779 (1st Cir. 1997), Massachusetts ABPO is categorically a violent felony for ACCA purposes, and Shepard had not rendered Fernández obsolete. The district court rejected this argument and held that, since it could not determine whether Brown's crime was violent or nonviolent, it could not count it as an ACCA predicate. The court consequently sentenced Brown to the original GSR maximum of sixty-three months.

II. The Motion to Suppress

Brown appeals the denial of his motion to suppress. He does not now claim that the police lacked probable cause to arrest him, but maintains that he was in the curtilage of his home and that the police lacked exigent circumstances to arrest him without a warrant. We affirm the denial of the motion.

A. Standard of Review

When considering whether a certain location qualifies as curtilage for Fourth Amendment purposes, we review the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Diehl, 276 F.3d 32, 37 (1st Cir.2002). "We will uphold a denial of a motion to suppress if any reasonable view of the evidence supports it." United States v. St. Pierre, 488 F.3d 76, 79 (1st Cir.2007) (quoting United States v. Kornegay, 410 F.3d 89, 93 (1st Cir.2005)) (internal quotation marks omitted).

B. Discussion

With one apparent exception discussed below, Brown does not challenge the district court's factual findings with respect to the motion to suppress, and our examination of the record reveals no error in these findings, much less clear error. We thus turn immediately to whether, in light of these facts along with those adduced at trial,⁶ the district court erred in determining that Brown was not in the curtilage of his home.

The Fourth Amendment protects persons from warrantless arrest inside their homes or other places where they have a reasonable expectation of privacy. See Payton v. New York, 445 U.S. 573, 586-87, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Cruz Jiménez, 894 F.2d 1, 6 (...