U.S. v. Paulette
| Decision Date | 10 August 2006 |
| Docket Number | No. 05-5549.,05-5549. |
| Citation | 457 F.3d 601 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Altonio PAULETTE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Marty B. McAfee, McAfee & McAfee, Memphis, Tennessee, for Appellant. Camille R. McMullen, Assistant United States Attorney, Memphis, Tennessee, for Appellee.
ON BRIEF:
Marty B. McAfee, McAfee & McAfee, Memphis, Tennessee, for Appellant. Camille R. McMullen, Assistant United States Attorney, Memphis, Tennessee, for Appellee.
Before: GIBBONS and COOK, Circuit Judges; SCHWARZER, Senior District Judge.*
Defendant-appellant Altonio Paulette, having been convicted of being a felon in possession of a firearm, appeals his conviction and sentence. 18 U.S.C. § 922(g). Paulette contends (I) that the denial of his motion to suppress evidence was error; (II) that the evidence was insufficient to support his conviction for possession of a firearm; (III) that the district court erred in its Guidelines calculation by applying a two-level enhancement for obstruction of justice; and (IV) that the court's denial of a reduction for acceptance of responsibility was error. For the reasons that follow, we vacate Paulette's sentence to the extent it rests on the obstruction of justice enhancement and remand for resentencing. In all other respects, we affirm.
On November 1, 2002, two Memphis police officers observed Paulette and another individual engage in a hand-to-hand transaction. The officers, based on their knowledge of the area and experience with drug crimes, believed the transaction to be related to drugs. When Paulette noticed the officers approaching in their marked squad car, he quickly moved his hand to his pocket and began to walk away from the officers. The officers pursued Paulette and eventually detained him. Believing that Paulette had a weapon, they conducted a pat down search and discovered two plastic bags of marijuana on his person. The officers examined Paulette's driver's license, which listed his address as the Memphis-suburb Cordova. When asked by the officers what he was doing in Memphis, Paulette stated that he was currently staying with his aunt nearby. One of the officers later testified that he suspected Paulette was dealing drugs out of the home of a female relative, a practice he considered to be common in the area.
The officers accompanied Paulette to his aunt's home. His aunt answered the door and gave the officers permission to search her residence. She directed the officers to the room where Paulette "generally slept," in which they discovered more drugs, firearm ammunition, and a loaded 9 mm assault rifle. The officers found the drugs and ammunition in drawers exclusively used by Paulette and the firearm under one of the beds in the room. Paulette's aunt testified that he was the only person living in the room at the time and that she had not seen the firearm under the bed when cleaning the room roughly a month before the search.
The officers confronted Paulette with the evidence. Specifically, they questioned Paulette as to why the room contained ammunition for a .40 caliber weapon but not the weapon itself. Paulette volunteered that he had sold the .40 caliber weapon and purchased the assault weapon found by the officers. Overhearing the officers discussing whether to question his aunt about the marijuana found in the house, Paulette also volunteered that
Paulette was indicted on two counts of drug possession with intent to distribute, 21 U.S.C. § 841(a)(1), and three counts of being a felon in possession of a firearm, 18 U.S.C. § 922(g). Paulette moved to suppress the evidence obtained in the officers' search of his person and his aunt's house and his statements upon being confronted with the evidence. Following an evidentiary hearing, a magistrate judge recommended that the motion be denied except with respect to Paulette's statement that he was currently staying at his Aunt's house. The district court adopted the magistrate judge's recommendations.
On the day the district court impaneled a jury, Paulette pleaded guilty to both drug counts, but maintained his not guilty plea to the three weapons counts. At trial, Paulette stipulated to the prior felony conviction and admitted that he was working as a drug dealer at the time of his arrest and that the drugs found in his aunt's house belonged to him. Paulette also testified that he lived with his mother at the time of his arrest but also spent nights at his aunt's house. The following exchange occurred at the start of his direct examination:
Q. [Defense Counsel] Where do you live?
A. [Paulette] Currently I stay at 201 Poplar, but I've been a resident of Memphis all my life.
Q. Before you were arrested where did you live when you were out in the community?
A. Recently — well, at the same time I stayed with mother in Cordova, but I could spend the night over at my aunt's house when I was out there in the area.
. . . .
Q. And how long would you say that you had been staying at her house?
A. I would say about a month.
Q. Okay. Did you stay there every single night?
A. No, sir.
Q. Were you paying rent to stay there?
A. No, sir, but if she asked me for anything, I would give it to her.
Q. Okay. She took you in when you needed a place to stay?
A. Yes, sir.
On cross-examination, Paulette added the following:
Q. [Prosecution] Mr. Paulette, you indicated that you, prior to this incident and you being incarcerated pursuant to this arrest, you're a life-long Memphian, correct?
A. Yes, ma'am.
Q. And you — you gave some sort of double answer, you said at the time of this arrest on November 1st of 2002 you lived with your mother in Cordova?
A. Ma'am, I could go to either residence. It was like I could go to my sister's residence, also. So I could pretty much spend the night either — either where I was in the area.
. . . .
Q. Okay. And just so I'm clear, you're saying that you could have stayed with your mother, right?
A. If I was in the area.
Q. And you could have stayed with your sister?
A. If I was in her area.
Q. Okay. And because you were in your aunt's area, you're telling this jury that's the only reason you were staying with her?
A. Not exactly.
Q. Okay. You didn't really have any other place to go, correct?
A. No, no, ma'am.
Q. I'm sorry?
A. I could go to my sister's house or my mother's house, but since I didn't have transportation and this [Memphis] was where I did my business, that's where I was most of the time, that's where I chose to be. But I could go to any residence that I have and spend the night there and it won't be a problem.
When the trial resumed the next day, the government resumed the cross-examination:
Q. Mr. Paulette, on yesterday we discussed where you stayed or we — we discussed that at the top of your cross-examination, correct?
A. Yes, ma'am.
Q. And you were permitted to make jail phone calls while incarcerated, correct?
A. Yes, ma'am.
[. . .]
Q. And you spoke to your mother regarding where you stayed, correct?
A. Yes, ma'am.
Q. And on yesterday you told members of the jury that you had many places to stay, including your mother's house in Cordova, correct?
A. Right.
Q. And your sister's house, correct?
A. Yes, ma'am.
Q. As well as Tammy's [Paulette's aunt] house, correct?
A. Yes, ma'am.
Q. And you indicated that it just depended on what area of the neighborhood that you were in, correct?
A. Yes, ma'am.
The government then sought to impeach his prior testimony about his residence at the time of the crime by playing a tape of Paulette's jail house telephone conversation with his mother. The cross-examination continued after the playing of the tape:
Q. Mr. Paulette, in that conversation you clearly indicated that you had nowhere else to go [but to his aunt's house], correct?
A. I had somewhere else to go, I just preferred not to go to my mother's house, that's way [sic] I said in that way, I could have but I chose not to.
Q. That's not what you told the member's of the jury yesterday, right?
A. I could go to her house, I chose not to go to her house, just like I said on that phone call that she had, which her boyfriend, which is now her husband there, and me and him don't get along, so that's why I chose not to go there. I am welcome in my mother's house just as well at my sister's house, but I don't have transportation. So I wasn't free to go places that I would have went to if I did have transportation, I had a key to my sister's house at the time.
The jury returned a guilty verdict on all three firearms counts. At sentencing, the government sought a two-level enhancement based on what it characterized as Paulette's perjury regarding his residence at the time of the crime. Paulette objected to the enhancement. The district court imposed the enhancement, stating:
In this case I do recall that conversation and it appears to me that the defendant persisted in a certain statement regarding his address and did that with a view of trying to persuade the finder of fact to a particular position or finding. The government gave him an opportunity on a couple of occasions to correct the statement and he persisted, they then brought in the tapes and brought in the defendant's mother as I said before, the mother said and did in fact impeach him.
Because of what the defendant was attempting to do in that statement that made it a material statement and the court finds that based on that he was impeached, it was clearly from the evidence a false statement, and so I find under 3C1.1 that the enhancement is appropriate and I will deny the defendant's objection.
The district court made no further findings. It also denied Paulette's request for a two-level reduction for acceptance of responsibility under USSG § 3E1.1,...
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