                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-2033
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.
DANIEL D. GRAP,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Western Division.
          No. 03-CR-50038—Philip G. Reinhard, Judge.
                          ____________
   ARGUED FEBRUARY 23, 2005—DECIDED MARCH 25, 2005
                    ____________




 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 con-
ditioned 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
2                                               No. 04-2033

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 ap-
plicable 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 phy-
sical 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 Constitu-
tion under United States v. Booker, 543 U.S. ___, 125 S.Ct.
738 (2005), since they were predicated on factual findings
made only by the sentencing judge based only on a prepon-
derance 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   ’s
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
No. 04-2033                                                 3

concerned stolen property that he believed to be in her
garage and asked for her permission to search that build-
ing. 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 car-
ried 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 de-
scriptions of the guns and their serial numbers. Mrs. Grap
did not ask any questions about the receipt, and both she
4                                                No. 04-2033

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 steal-
ing 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 phy-
sical 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 dis-
trict 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 condi-
tional 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
No. 04-2033                                                5

defined by the statute, and recommended upward adjust-
ments 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 acknowl-
edged 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
6                                                No. 04-2033

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 Detec-
tive 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
conducted the warrantless search, and claims that such
subjective impressions are not determinative. United States
v. Elrod, 441 F.2d 353, 355 (5th Cir. 1971). Grap contends
that the evidence as a whole shows that Mrs. Grap’s psy-
chosis rendered her unable to grant consent to a search. We
disagree.
  On the appeal of a district court’s denial of a motion to
suppress, we review legal conclusions de novo and findings
of fact for clear error. United States v. Robeles-Ortega, 348
F.3d 679, 681 (7th Cir. 2003). While the Fourth Amendment
protects against unreasonable searches and seizures, war-
rantless searches are not per se unreasonable and are con-
No. 04-2033                                                  7

stitutional under the Fourth Amendment if “an authorized
individual voluntarily consents to the search.” United States
v. Duran, 957 F.2d 499, 501 (7th Cir. 1992) (citing Florida
v. Jimero, 500 U.S. 248 (1991)). It is well-settled that a
third party who has “actual or apparent authority over the
defendant’s property” has the authority to consent to a search.
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); United States
v. Basinki, 226 F.3d 829, 833 (7th Cir. 2000). The govern-
ment bears the burden of proving by a preponderance of the
evidence that consent was freely and voluntarily given.
Basinki, 226 F.3d at 833.
  Whether a consent is voluntary is dependent upon the
totality of circumstances. Schneckloth v. Bustamonte, 412
U.S. 218, 248 (1973). Among the factors that aid in deter-
mining whether consent was freely given are the age, educa-
tion, and intelligence and (applicable here) mental health
and capability of the person giving consent; whether the per-
son giving consent did so immediately or only after repeated
requests by the police; whether physical coercion was used
to obtain consent; and whether the person giving consent
was in custody. United States v. Strache, 202 F.3d 980, 985
(7th Cir. 2000) (internal citations omitted). We also consider
whether the officer advised the person asked to give consent
of her right to refuse, although the absence of this factor is
not fatal to the government’s proof of voluntary consent.
Schneckloth, 412 U.S. at 249.
  Applying these principles to the facts of this case, we find
that Detective Gallagher properly obtained Mrs. Grap’s
voluntary consent to search the Grap premises. While he
did not possess a warrant to search the Grap residence, he
informed Mrs. Grap that he believed that there was stolen
property in her garage, asked her permission to search and
then produced a consent form and read it aloud to Mrs. Grap.
The facts on the record show that Detective Gallagher’s
failure to advise Mrs. Grap of her right to refuse to consent
to the search does not undermine the voluntary nature of her
consent.
8                                               No. 04-2033

   The evidence also persuades us that, despite her mental
infirmities, Mrs. Grap freely and voluntarily consented to
Detective Gallagher’s search, and that she was aware of all
the relevant circumstances of the search and seizure of the
stolen firearms. There is no allegation that Mrs. Grap lacked
the authority to give consent to the warrantless search. And
however potentially serious the effects of her psychosis,
Mrs. Grap’s behavior did not indicate that she lacked the
requisite mental capacity to consent. When Detective
Gallagher informed her of his belief that stolen property
was in her garage without disclosing the nature of the
property, Mrs. Grap asked him whether he was searching
for guns. Mrs. Grap also signed both the consent form and
the receipt, and opened the door of the garage with a garage
door opener. Once Detective Gallagher had recovered the
rifles, Mrs. Grap mentioned that the guns might belong to
her husband, and had the good sense to inform
Detective Gallagher that her husband kept his guns in their
bedroom and, after checking, to confirm that her husband’s
guns were indeed in this location. This behavior would
clearly indicate to a reasonable observer that Mrs. Grap suf-
ficiently understood the consequences of her consent. And
reasonableness is the touchstone of validity of third-party
consent to a search. See Rodriguez, 497 U.S. at 182.
  Grap’s contention that Detective Gallagher’s “subjective”
impressions are irrelevant under United States v. Elrod,
supra, is unpersuasive. In Elrod, the Fifth Circuit sup-
pressed physical evidence of a bank robbery that police
officers had uncovered in a warrantless search of a hotel
room that was occupied by the defendant and codefendant,
finding that the codefendant, who suffered from schizophre-
nia, lacked mental capacity when he consented to the
warrantless search. The Fifth Circuit explained its holding
by asserting that, “[n]o matter how genuine the belief of the
officers is that the consentor is apparently of sound mind,
and deliberately acting, the search depending on his
No. 04-2033                                                 9

consent fails if it is judicially determined that he lacked
mental capacity.” 441 F.2d at 355. However, the Fifth
Circuit also noted that the “question was one of mental
awareness so that the act of consent was the consensual act
of one who knew what he was doing and had a reasonable
appreciation of the nature and significance of his actions.”
Id. at 355.
  Apparently not following some of the language of Elrod,
however, the Seventh Circuit views the relevance of the
officer’s observations in a different light. Thus, in United
States v. Strache, supra, the defendant, who was allegedly
mentally ill and suicidal at the time of the search, sought to
suppress evidence of explosives that police had uncovered in
a warrantless search of his bedroom by claiming that his
mental condition rendered him incapable of giving free and
voluntary consent. We disagreed, finding that the defen-
dant’s consent was voluntary based on police officers’
testimony that the defendant was clear and lucid and had
behaved in a relaxed and cooperative manner. In Strache,
the impressions presented to the officers were undeniably
relevant and, in fact, determinative in our analysis of
whether the consent was voluntary under the totality of the
circumstances. We determined that the officers’ conclusions
of voluntariness were reasonable in light of the defendant’s
behavior, as presented to the officers.
  Crucially, the apparent difference between the approaches
to voluntary consent in Strache and Elrod stems from the
weight to be accorded the evidence presented to a reasonable
officer asking for consent as opposed to some other facts,
unknown to the officer, but later argued to the reviewing
court. There may be an inference in Elrod that this after-
presented evidence is strongly relevant, but in the Strache
approach, it would be relevant only to impeach the credibil-
ity of the officer or to shed any light on what was reasonably
apparent to him when he obtained the consent. The stand-
ard of what is reasonably apparent to a reasonable inquiring
10                                                No. 04-2033

officer, with its emphasis on the deterrence rationale of the
exclusionary rule, is the correct approach. The purpose of
suppression of evidence obtained in an unreasonable search
is to deter violations by officers of the Fourth Amendment.
Obviously, they cannot be deterred by circumstances that
are unknown to them, like the psychiatric history of the
person consenting to a search. See United States v. Merritt,
361 F.3d 1005, 1009 (7th Cir. 2004) (reversed on other
grounds) (quoting United States v. Calandra, 414 U.S. 338,
348 (1974)). Thus, the exclusionary rule should not be ap-
plied when its application will not result in “appreciable
deterrence.” Id. (quoting United States v. Leon, 468 U.S.
897, 909 (1984)).
  Here, an Elrod-type judicial finding that Mrs. Grap’s
mental condition, as determined by psychiatric testimony,
prevented her from having the requisite mental capacity to
voluntarily consent to a warrantless search might be of
academic interest, but it has little to do with regulating pol-
ice conduct. The proper inquiry here focuses upon the
objective facts, as presented to a reasonable inquirer, that
would reasonably put him or her on notice that a voluntary
consent could not be given.
  Of course, in addition, the mental capacity of the person
giving consent is only one factor in evaluating his capacity
to give voluntary consent. And “[i]t should not be assumed . . .
that anyone suffering from some type of mental disease or
defect is inevitably incapable of giving a voluntary consent
to a search.” 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE
§ 8.2(e), at 93 (4th ed. 2004). Modern medicine allows those
suffering from even severe forms of mental illness, including,
apparently, Mrs. Grap, to control their conditions through
medication. Though Mrs. Grap has a history of refusing to
take prescribed medication, her behavior provides no indi-
cation that she was suffering from delusional symptoms, or
that she was “out of touch” with reality. On the contrary, she
acted as if she were profoundly aware of events as they
unfolded.
No. 04-2033                                                 11

   Our approach to the question of mental capacity to con-
sent to a search may be analogized to the issue of apparent
authority addressed in Illinois v. Rodriguez, supra. That
case holds that a person with apparent authority (that is, a
person having the indicia of agency as opposed to one ac-
tually authorized) may validly consent to a search. “[E]ven
if [the purported agent] did not in fact have authority to
give consent, it suffices to validate the entry that the law
enforcement officers reasonably believed she did.” Rodriguez,
497 U.S. at 182.
  For these reasons, we cannot say that the district court
erred in finding that Mrs. Grap voluntarily consented to
Detective Gallagher’s warrantless search of the garage, and
therefore affirm its denial of Grap’s motion to suppress.


                             B.
  Grap’s second argument on appeal is that the district
court committed constitutional error in finding by a pre-
ponderance of the evidence that he was a “prohibited per-
son” and that he possessed a firearm in connection with
another felony, and in applying two enhancements based on
these findings. We conclude that, under United States v.
Booker, the district court committed plain error when it
increased Grap’s sentence on the basis of these findings,
and so order a limited remand to the district court under
United States v. Paladino to permit the sentencing judge to
reconsider this determination. No. 03-2296, 2005
WL 435430, at *10 (7th Cir. Feb. 25, 2005).
  In resolving this claim, we first review the district court’s
factual findings in support of the obstruction of justice en-
hancement for clear error. United States v. Girardi, 62 F.3d
543, 547 (7th Cir. 1995). We then address whether Grap’s
sentence violates the Sixth Amendment right to trial by jury
in federal criminal cases, as interpreted in Booker, supra.
12                                               No. 04-2033

  For purposes of U.S.S.G. § 2K2.1(a)(6), a “prohibited per-
son” denotes any person prohibited from possessing a fire-
arm under 18 U.S.C. § 922(g). See U.S.S.G. § 2K2.1(a)(6),
comment n.6. As 18 U.S.C. § 922(g)(3) provides, unlawful
users of controlled substances are prohibited from posses-
sing firearms, and thus qualify as “prohibited persons” under
U.S.S.G. § 2K2.1(a)(6). Though we have not had occasion to
address this issue, other circuits have determined that an
individual’s status as a prohibited person is ascertained as
of the time he committed the instant offense, necessitating
that Grap’s drug use be “contemporaneous with his firearm
possession.” United States v. Bennett, 329 F.3d 769, 776-77,
(10th Cir. 2003); United States v. Nevarez, 251 F.3d 28, 30
(2d Cir. 2001).
  The district court imposed both the “prohibited person”
enhancement and the 4-level enhancement for possessing
a firearm in connection with another offense (here, attempt-
ing to deface a firearm) based on the facts in the PSR as
well as the testimony of the probation officer and Hamilton,
Grap’s ex-girlfriend. But Grap never admitted to the rele-
vant factual details of this testimony, nor were they found
by a jury beyond a reasonable doubt. Thus, the district
court was not authorized to make these findings. United
States v. Booker, 543 U.S. at ___, 125 S. Ct. at 756 (affirming
Apprendi v. New Jersey, 530 U.S. 466 (2000)).
  Continuing the analysis under Booker, we review Grap’s
claim for plain error since he made no objection in the dis-
trict court. 543 U.S. at ___, 125 S.Ct. at 769. As we held in
United States v. Nance, in conducting a plain error analysis,
“we must decide (1) whether there is error at all, (2)
whether it was plain, (3) whether it affected the defendant’s
substantial rights, and (4) whether (if the first three factors
are present) it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” 236 F.3d 920,
824 (7th Cir. 2000) (citing Johnson v. United States, 520
U.S. 461, 466-67 (1997)).
No. 04-2033                                                  13

  The government concedes in its supplemental brief that
the district court committed an error which was plain by
adjusting Grap’s sentence upward under mandatory guide-
lines based upon its own findings under the preponderance
of the evidence standard. However, it argues, Grap cannot
show that his substantial rights were violated since he
cannot prove that the district court would have imposed a
lesser sentence had it been free to do so.
  We find, however, that it is impossible to determine the
effect of this error upon Miller’s sentence without consulting
the sentencing judge, who “might well have decided to
impose a lighter sentence than dictated by the guidelines
had he not thought himself bound by them, [and so] his
error in having thought himself bound may have precipi-
tated a miscarriage of justice.” Paladino, 2005 WL 435430,
at *9. Thus, under Paladino, we order a limited remand to
the district court “to permit the sentencing judge to deter-
mine whether he would (if required to resentence) reimpose
his original sentence.” Id. at *10. If the sentencing judge
determines that Miller’s sentence should be reimposed, “we
will affirm the original sentence against a plain-error
challenge provided that the sentence is reasonable.” Id. If,
however, the sentencing judge determines that he would
have imposed a different sentence under an advisory scheme,
“we will vacate the original sentence and remand for re-
sentencing.” Id.


                              III.
  Having found that Grap’s mother freely and voluntarily
consented to a warrantless search of her premises, we
AFFIRM the district court’s denial of Grap’s motion to
suppress. However, because the district court committed
plain error by adjusting Grap’s sentence upward based on
facts found by the sentencing judge under the preponder-
ance of the evidence, in violation of Booker, we order a limited
REMAND to the district court under Paladino to permit the
14                                          No. 04-2033

sentencing judge to determine whether to reimpose his
original sentence.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—3-25-05
