U.S. v. Grap, 04-2033.

• Decision Date: 25 March 2005
• Docket Number: No. 04-2033.,04-2033.
• Citation: 403 F.3d 439
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel D. GRAP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 439

403 F.3d 439

UNITED STATES of America, Plaintiff-Appellee, v. Daniel D. GRAP, Defendant-Appellant.

No. 04-2033.

United States Court of Appeals, Seventh Circuit.

Argued February 23, 2005.

Decided March 25, 2005.

Michael Iasparro (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Peter Nolte (argued), Sreenan & Cain, Rockford, IL, for Defendant-Appellant.

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges.

CUDAHY, Circuit Judge.

Defendant Daniel Grap was indicted for one count of stealing firearms, in violation of 18 U.S.C. § 924(1), and for one count of possessing stolen firearms, in violation of 18 U.S.C. § 922(j). Grap pleaded guilty to the possession of stolen firearms count, but conditioned his plea on the right to appeal the denial of his motion to suppress physical evidence in the form of firearms recovered by a police officer in a warrantless search of his parents' premises. In addition, things did not proceed smoothly for Grap at sentencing, where the district court applied two enhancements to his sentence based upon its findings that he was a "prohibited person" under the applicable statute and that he had possessed a firearm in conjunction with a felony other than the offense to which he had pleaded guilty. On appeal, Grap contends that the district court erred in denying his motion to suppress physical evidence since his mother lacked the requisite mental capacity to consent to a warrantless search. He also asserts that the enhancements to his sentence violate the Constitution under United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), since they were predicated on factual findings made only by the sentencing judge based only on a preponderance of the evidence. We affirm the denial of Grap's motion to suppress, but order a limited remand for the purpose of allowing the sentencing judge to consider whether to reimpose his original sentence.

I.

On the morning of March 17, 2002, Daniel Grap and his friend, Nathan Bruner, drove to 5701 Montague Road in Rockford, Illinois in Grap's pickup truck. There, Bruner broke into a building on the premises, took six firearms from a bedroom, and carried them out to Grap's vehicle. The two then departed, later divvying up the stolen firearms. Detective James Gallagher of the Winnebago County Sheriff Department was assigned to investigate the stolen firearms and received a tip from Grap's ex-girlfriend, Courtney Hamilton, who claimed to have helped Grap relocate guns from his home and vehicle to a detached garage at his parents' residence in Rockford. Based on this tip, Detective Gallagher visited the Graps' residence at approximately 10:00 a.m. on May 22, 2002, and knocked on the front door, which was opened by the defendant's mother, Mrs. Lila Grap. Detective Gallagher informed Mrs. Grap that his visit concerned stolen property that he believed to be in her garage and asked for her permission to search that building. Mrs. Grap then asked Detective Gallagher if he was looking for guns, and explained that she had recently spoken with Courtney Hamilton about some firearms. Detective Gallagher had not yet disclosed to Mrs. Grap the nature of the stolen property for which he was searching. Detective Gallagher then produced a written consent form, read it aloud to Mrs. Grap, and handed it to her, but did not inform Mrs. Grap that she could refuse to consent to the warrantless search. After Mrs. Grap reviewed and signed the form, Detective Gallagher also signed it. Mrs. Grap asked no further questions about the form and appeared to understand it.

After both parties had signed the consent form, Mrs. Grap opened the detached garage door with a garage door opener, and Detective Gallagher entered and found three rifles in plain view where Hamilton said they would be. He then carried these rifles out to his police vehicle and placed them on the hood of his car. At this point, Mrs. Grap came back outside and asked Detective Gallagher what he was going to do with the guns. When Detective Gallagher informed her that he believed the guns were stolen, and that he would be taking them with him, Mrs. Grap stated that the guns might belong to her husband. Detective Gallagher asked Mrs. Grap if her husband kept his guns in the garage; she replied that he usually kept them in a closet in the house, prompting Detective Gallagher to request that she check to make sure her husband's guns were still there. Mrs. Grap reentered her house and emerged a moment later to inform Detective Gallagher that her husband's guns were still in the closet. Detective Gallagher then told Mrs. Grap that he would take the guns found in the garage and provided her with a handwritten receipt listing the descriptions of the guns and their serial numbers. Mrs. Grap did not ask any questions about the receipt, and both she and Detective Gallagher signed it. According to Detective Gallagher, Mrs. Grap appeared to understand everything he had said that day and did not seem confused; thus, at no time did he believe that she lacked the capacity to consent to the warrantless search of her garage.

In July of 2003, Grap was indicted on one count of stealing firearms, in violation of 18 U.S.C. § 924(1), and one count of possession of stolen firearms, in violation of 18 U.S.C. § 922(j). In November, Grap filed a motion to suppress physical evidence. The district court conducted an evidentiary hearing on this motion in December of 2003. At the hearing, Grap argued that Detective Gallagher did not obtain Mrs. Grap's voluntary consent to search the garage, and presented the testimony of her husband and psychiatrist to prove that she was mentally ill and therefore lacked the requisite mental capacity for voluntary consent. Richard Grap testified that his wife had suffered from mental illness for at least ten years, and had refused to take her medication in the time period between January 2002 and May 2002. Dr. Jack Rodriguez, Mrs. Grap's psychiatrist, testified that she had been hospitalized for a delusional disorder that impaired her ability to make rational decisions, and that she refused to take her medication when she was not in the hospital, causing her to become increasingly delusional and out of touch. According to Dr. Rodriguez, at times Mrs. Grap could appear to be fairly lucid, but might nonetheless be in a delusional state. After hearing this testimony, the district court found that Mrs. Grap possessed the mental capacity to make a rational decision as to whether to give or withhold her consent to the warrantless search, and denied Grap's motion to suppress physical evidence.

As indicated, in February 2004, Grap entered a conditional plea of guilty to the possession charge. Thereafter, a presentence investigation report (PSR) was prepared. The probation officer who prepared the PSR concluded that Grap was a "prohibited person," essentially a drug user, as defined by the statute, and recommended upward adjustments to his base offense level under U.S.S.G. §§ 2K2.1(a)(6) and 2K2.1(b)(4). At sentencing, Grap objected to these enhancements. During the hearing, the probation officer testified that she had conducted a presentence interview with Grap in the presence of his attorney. In this interview, she reported, Grap had admitted to using marijuana since the age of 19, and to using cocaine and crack for one year from the age of 21 or 22, but had claimed to have stopped using cocaine when he was arrested and placed on bond in Winnebago County. The probation officer admitted that she never asked Grap whether he used controlled substances up to and including March or May of 2002, and that she never asked him after which of his three arrests he had stopped using cocaine. The sentencing judge also heard testimony concerning Grap's drug use from Courtney Hamilton, Grap's ex-girlfriend, who testified that she had used marijuana and cocaine on a regular basis with Grap in March of 2002. Hamilton also testified that, while at Grap's apartment in March of 2002, she had observed him with a gun and a file, and that Grap had told her that he was going to file the serial numbers off the gun. Hamilton conceded, however, that she could not see what Grap was filing, and also acknowledged that her recollections of the events of March 2002 were hazy since she had had a substance abuse problem at that time.

Based upon this testimony and the PSR, the district court found that Grap was a "prohibited person" and set his base offense level under U.S.S.G. § 2K2.1(a)(6), increasing it by two levels under U.S.S.G. § 2K2.1(b)(4) since the offense involved stolen firearms. It also applied an additional 2-level enhancement under U.S.S.G. § 2K2.1(b)(4), finding that the firearms involved in the offense were stolen. Finally, based on Hamilton's testimony, the district court imposed an additional 4-level enhancement under U.S.S.G. § 2K2.1(b)(5), finding that Grap had possessed a firearm in connection with the offense of obliterating its serial number, a felony under Illinois law. Grap also received a 3-level downward adjustment for acceptance of responsibility. Based on these calculations, which produced an offense level of 19, and a finding that Grap's criminal history category was III, the district court determined Grap's sentencing guideline range to be 37 to 46 months, and sentenced him to 40 months' imprisonment.

II.

On appeal, Grap contends that the district court erred in denying his motion to suppress physical evidence since his mother lacked the requisite mental capacity to consent to a warrantless search, and that the enhancements to his sentence violate Booker.

A.

Grap's first argument is that the district court incorrectly found that his mother had voluntarily consented to Detective Gallagher's warrantless search of the garage. He contends that the government's only evidence of voluntary consent was the subjective impressions of the officer who...