U.S. v. Washington
| Decision Date | 24 July 2003 |
| Docket Number | No. 02-20972.,02-20972. |
| Citation | 340 F.3d 222 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tony Ray WASHINGTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jeffery Alan Babcock, James Lee Turner, Asst. U.S. Atty., Houston, TX, Tony
Ray Roberts (argued), McAllen, TX, for Plaintiff-Appellee.
Roland E. Dahlin, II, Federal Public Defender, Margaret Christina Ling, Asst. Federal Public Defender (argued), Raquel Kathy Wilson, Asst. Federal Public Defender, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before WIENER and CLEMENT, Circuit Judges, and LITTLE*, District Judge.
Tony Washington was convicted at a bench trial on stipulated facts of being a felon in possession of a firearm. Washington claims the district court erred with respect to the following issues: (1) holding that exigent circumstances justified the police officers' no-knock entry; (2) denying a sentence reduction for acceptance of responsibility; (3) enhancing Washington's sentence for possessing a firearm in connection with a felony offense; (4) and concluding that the evidence sufficiently proved that the weapons traveled in or affected interstate commerce as necessary for a conviction. For the following reasons, we AFFIRM in part and REVERSE and REMAND in part.
On 7 November 2001, the government charged appellant Tony Ray Washington with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Washington proceeded to a bench trial on stipulated evidence after losing his motion to dismiss and motion to suppress the evidence. The district judge found him guilty of the one count indictment. On 22 August 2003, the district court sentenced Washington to sixty-three months in prison, three years supervised release, a fine of $1000 and a special assessment of $100. Washington timely appealed.
On 20 March 2001, Officer Goines of the Houston Police Department and an informant conducted an undercover drug purchase at 2420-½ Pierce in Houston, Texas. The informant told Goines that Darnell Johnson sold codeine from a room at a halfway house located at that address. The officers were told that the rooms measured approximately twenty feet by twenty feet with windows but no kitchen or bathroom. Washington contends that the rooms lack bathrooms, sinks or any other kind of plumbing. In addition, Washington states that all the windows in the room at issue face the front of the building.
The informant purchased codeine from room number 9 at the halfway house. The codeine was in liquid form packed in a baby food jar. The informant told Goines that he observed multiple drugs and at least one firearm in the room. The informant also noted that Johnson always carried a firearm on his person. Based on this information, on 21 March 2001, Goines, along with four other Houston Police officers, executed a search warrant for the room and an arrest warrant for Johnson. At approximately 3:00 p.m., the officers forced open the main door to the building. After climbing the stairs, Goines yelled "Houston Police" and opened the door to the room with a battering ram. The officers did not knock on the door prior to using the battering ram. Upon entry into the room, the officers found Washington lying in bed with two firearms within his reach. The police arrested Washington without incident. A subsequent search of the room revealed five firearms and a substance later determined to be cocaine. Upon arrest, Washington admitted he owned the firearms. All the firearms were manufactured outside of Texas and one was reported stolen. During the search, the officers did not recover any codeine or apprehend Johnson.
Washington was subsequently charged with being a felon in possession of a firearm.1 Washington moved to dismiss the indictment arguing that a conviction constitutionally required more proof than merely showing that at some point the firearm traveled across state lines. Washington also moved to suppress the evidence arguing that the "no-knock" entry violated the Fourth Amendment. Washington was unsuccessful in both motions. Washington waived his right to a jury and proceeded to a bench trial based on written stipulation. On 13 May 2002, the district court convicted Washington for knowingly and unlawfully possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The United States Probation Office ("Probation Office") prepared a pre-sentence report ("PSR") which applied the United States Sentencing Guidelines ("USSG" or "Guidelines"). The amended PSR showed a base offense level of fourteen.2 The Probation Office raised the base two levels because of the number of firearms [USSG § 2K2.1(b)(1)(A)] and raised it two more levels because one of the firearms was reported stolen [USSG § 2K2.1(b)(4)]. Four more levels were added as the weapons were used in connection with possession of a controlled substance [USSG § 2K2.1(b)(5)]. Finally, the Probation Office suggested a three level reduction for acceptance of responsibility. The PSR calculated Washington's total offense level as nineteen and his criminal history category as IV. The PSR reflected a guideline range of imprisonment of forty-six to fifty-seven months.
The government objected to the PSR arguing that Washington deserved only a two point reduction for acceptance of responsibility since he did not notify his intention to plead guilty in a timely manner. Conversely, Washington claimed that he was entitled to a three point reduction for acceptance of responsibility. In addition, Washington objected to the four point increase under § 2K2.1(b)(5). The district court denied sua sponte any credit for acceptance of responsibility. The court determined the offense level to be twenty-two with a criminal history category of IV. The court calculated Washington's sentencing range as between sixty-three to seventy-eight months. The court sentenced Washington to a term of sixty-three months. Washington subsequently filed the appeal presently before this court.
This appeal involves the following four issues: (1) whether the district court erred in concluding that exigent circumstances justified the police officers' no-knock entry and thereby denying Washington's motion to suppress; (2) whether the district court erred by denying a sentencing reduction for acceptance of responsibility; (3) whether the district court erred by enhancing Washington's offense level pursuant to § 2K2.1(b)(5) for possessing a firearm in connection with another felony offense; and (4) whether the evidence that the recovered firearms were manufactured in another state sufficiently proved that the weapons traveled in or affected interstate commerce as necessary for Washington's conviction. We discuss each issue in turn.
This court reviews findings of fact on a motion to suppress under a clearly erroneous standard and reviews the district court's conclusions of law de novo. See United States v. Singh, 261 F.3d 530, 535 (5th Cir.2001). The presence of exigent circumstances is a finding of fact reviewed for clear error. United States v. Jones, 239 F.3d 716, 719 (5th Cir.2001). Additionally, this court views the facts in the light most favorable to the prevailing party. United States v. Howard, 106 F.3d 70, 73 (5th Cir.1997) (citations omitted).
The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," U.S. Const. amend. IV. The Supreme Court has stated that the "Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry." Richards v. Wisconsin, 520 U.S. 385, 387, 117 S.Ct. 1416, 1417, 137 L.Ed.2d 615 (1997) (citing Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)).3 This requirement is tempered by "countervailing law enforcement interests." Id. The Court recognized that the "knock-and-announce requirement could give way `under circumstances presenting a threat of physical violence,' or `where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.'" Id. at 391, 117 S.Ct. 1416, 117 S.Ct. at 1420 (quoting Wilson, 514 U.S. at 936, 115 S.Ct. at 1919).
The Supreme Court established the following standard for evaluating a no-knock entry: "the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards, 520 U.S. at 394, 117 S.Ct. at 1421. The Court rejected the contention that all drug investigations inherently have risks of officer safety or destruction of evidence. Id. at 393, 117 S.Ct. at 1421. Although the Court refused to adopt a blanket rule that police are never required to knock-and-announce when executing a warrant for a drug investigation, the Court admitted that the showing of reasonableness "is not high." Id. at 394, 117 S.Ct. at 1422. In order to justify the no-knock entry in this case, the police officers must have had a reasonable suspicion that the drugs could be readily destroyed or that announcing their presence would endanger their safety.
Washington contends that the physical aspects of the drugs and halfway house eliminate any risk that the drugs could be easily destroyed. The police had information that the drugs were in liquid form stored in small containers. The room only had windows facing the street and lacked plumbing. The...
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