U.S. v. Melendez

• Decision Date: 23 August 2002
• Docket Number: No. 01-1733.,01-1733.
• Parties: UNITED STATES of America, Appellee, v. Junito "Junior" MELENDEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

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301 F.3d 27

UNITED STATES of America, Appellee, v. Junito "Junior" MELENDEZ, Defendant, Appellant.

No. 01-1733.

United States Court of Appeals, First Circuit.

Argued May 9, 2002.

Decided August 23, 2002.

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John H. LaChance for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

BOWNES, Senior Circuit Judge.

A jury convicted Junito "Junior" Melendez of aiding and abetting the distribution of cocaine base, being a juvenile in possession of a firearm, and possession of cocaine base with the intent to distribute. Melendez was sentenced to 135 months of imprisonment. He now contends that the district court erred in denying his motions to suppress and to sever the first two counts of the indictment from the third.¹ He also alleges error in sentencing: specifically, that the district court should have departed downward from the sentencing guidelines due to his minimal or minor role in the crime, and that a prior conviction was improperly double-counted.

We affirm Melendez's conviction. We vacate his sentence, however, due to the district court's error in calculating his criminal history, and remand for resentencing.

I. BACKGROUND

The district court found the following facts: During the spring and summer of 1997, law enforcement agents conducted an undercover operation into drug dealing in the Worcester, Massachusetts, area. On July 16, 1997, Webster Police Officer Stephanie Healy, acting in an undercover capacity, paged Juan (also known as "John") Melendez to arrange the purchase of one ounce of cocaine base. Juan Melendez is the older brother of the defendant. Healy had obtained Juan's pager number during an earlier purchase of crack cocaine at Merrifield Street in Worcester. Juan returned Healy's call, and the two arranged for Healy to purchase one ounce of crack cocaine from him the next day at his home in Worcester.

On July 16, 1997, Healy paged Juan to confirm that the drug transaction would take place that day. This time, it was the defendant who returned the page in a telephone call recorded by Healy. Healy had never spoken to Junito Melendez before, but after Healy explained that she was confirming that her friend was going to meet "John" to buy one ounce at 2 p.m. that day, Junito Melendez identified himself as John's brother. He told Healy that he could get "it," and that either he or his brother would be at Merrifield Street to consummate the drug deal.

Following the telephone call between Healy and Melendez, Special Agent Michael Boyle of the Drug Enforcement Administration (DEA) and Trooper Denise Farrell of the Massachusetts State Police, both acting in an undercover capacity and wearing concealed monitoring devices, went to 53 Merrifield Street in Worcester. Farrell bought one ounce of crack cocaine in a plastic baggie from Juan Melendez for $800. The police did not observe Junito Melendez at Merrifield Street either at that time or during any additional purchases made from Juan Melendez's group.

On September 23, 1997, following the return of an indictment, Juan Melendez was arrested pursuant to a warrant. The same day, DEA and other law enforcement agents executed a federal search warrant at the third floor of 53 Merrifield Street in Worcester, looking for controlled substances or contraband. Inside a bedroom in the apartment at 53 Merrifield Street they found Junito Melendez, who said he lived there. Melendez was searched, and the agents seized a pager and $685 in cash from him.

The agents also searched the bedroom in which Melendez was standing when they entered. In the ceiling of the bedroom, they found marijuana and two firearms. After the search, law enforcement officers arrested Melendez, who was a juvenile at the time.

Two years later, on April 14, 1999, the United States filed an information against Junito Melendez as a juvenile, charging him in connection with the 1997 drug transaction and the resulting search. The next day, law enforcement agents arrested Melendez, pursuant to a warrant, on the porch at 96 Southgate Street in Worcester. The agents had information that Melendez had been living at that address with his mother, Geraldine Melendez.

Within approximately two hours of Melendez's arrest, DEA Special Agent Jean Drouin, Worcester Police Officer Miguel Lopez and Detective Brian Green returned to 96 Southgate Street. The officers asked Ms. Melendez if they could "look around" the bedroom used by Melendez.²

After telling the officers that she did not want her house "torn up," Ms. Melendez allowed them into her son's bedroom. As Ms. Melendez was leaving for work, one of the officers asked her if it was okay if they looked through the room after she left. She responded in the affirmative. Ms. Melendez called her brother and asked him to come over to her apartment. Ms. Melendez's neighbor and baby-sitter, Paulita Toney, was also present during the search.

In the closet of the bedroom, Agent Drouin found and seized a firearm, which was wrapped in a white towel and sitting on top of a plastic container. Officer Lopez searched the center area of the bedroom, where he saw a speaker with a detached cover and a woofer held in place with a screw. Officer Lopez removed the woofer from the speaker. Inside the wooden frame of the speaker, he found a white packet containing crack cocaine.

After finding the crack cocaine and the handgun, the officers spoke with Ms. Melendez by telephone at her work and told her what they had found. The officers asked for and received her permission to search the remainder of the apartment. After a more thorough search, no additional contraband was found.

On August 5, 1999, a federal grand jury returned a two-count indictment against Junito Melendez charging him (1) as a juvenile with delinquency by virtue of having committed a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, aiding and abetting the distribution of cocaine base on July 19, 1997, and (2) as a juvenile in possession of a firearm.

On January 12, 2000, a superseding indictment was returned, adding a count of possession of cocaine base with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). This count charged Melendez, as an adult, with regard to the events of April 15, 1999. On May 17, 2000, Melendez filed a motion to suppress evidence of the cocaine base and firearm that was the basis for the newly added count. After an evidentiary hearing, the court denied the motion. It held that Ms. Melendez's consent to the search of the bedroom was voluntary, that she had the authority to consent to the search of the speaker, and that the search did not exceed the scope of her consent. The court found that Ms. Melendez stated, in response to the officers' request to look through her son's bedroom, "Go ahead, fine, just do it," and called her brother to come over to the apartment while she left for work.

On November 27, 2000, Melendez filed a motion to sever the first and second counts from the third on the ground that they were improperly joined under Fed. R.Crim.P. Rule 8 and that the joinder was unfairly prejudicial to Melendez under Fed.R.Crim.P. 14. The court denied this motion.

A three-day jury trial began on December 18, 2000. Melendez was convicted of each count of the superseding indictment. On April 19, 2001, Melendez was sentenced to 135 months of imprisonment, five years of supervised release, and a $225 special assessment.³ This appeal followed.

II. DISCUSSION

A. Motion to Suppress

Melendez contends that the district court erred in determining that his mother consented to the search that yielded the crack cocaine in the speaker. He points to the district court's findings that the officers asked his mother to allow them to "look around" his room, and that Ms. Melendez told the officers that she did not want her apartment "torn up." He contends that the phrase "look around" suggests a mere visual inspection of the bedroom, precluding disassembling items to search for hidden contents, and that the officers exceeded the scope of Ms. Melendez's consent when they unscrewed and removed the woofer of the speaker and looked inside.

As a general matter, we review the district court's denial of Melendez's suppression motion de novo, and its factual findings for clear error. United States v. Hawkins, 279 F.3d 83, 85 (1st Cir.2002). As this court noted in United States v. Turner, 169 F.3d 84, 87 n. 4 (1st Cir.1999), circuits are divided on the question of the appropriate standard of review with respect to scope of consent. Id. (Fifth Circuit reviews the scope of consent de novo, Eighth Circuit reviews for clear error). This circuit has not conclusively weighed in on the issue. Id. As in Turner, however, we need not resolve it today, because the result in this case is the same regardless of the standard of review applied. See id.

"[O]ne of the specifically established exceptions to the [Fourth Amendment] requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "A consensual search may not exceed the scope of the consent given." Turner, 169 F.3d at 87. Because a consensual search falls within an established exception to the warrant requirement of the Fourth Amendment, the government bears the burden of proving that the search was within the scope of the consent. Id. at 87 n. 3.

We measure the scope of a subject's consent by a test of objective reasonableness: "what would the typical reasonable person have understood by the exchange between the officer and the subject?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). "We therefore look beyond the language of the consent itself, to the overall context, which...