                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1497
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                              Kenneth Lamont Sanders

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Dubuque
                                   ____________

                             Submitted: March 13, 2020
                               Filed: April 14, 2020
                                  ____________

Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
                           ____________

ERICKSON, Circuit Judge.

       Kenneth Lamont Sanders entered a conditional guilty plea to possession of a
firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(9), and
924(a)(2). Sanders appeals the district court’s1 denial of his motion to suppress. On
appeal, he argues that law enforcement officers’ initial warrantless entry into the
house was not supported by the community caretaker exception and, once inside, their
search for a firearm was not supported by exigent circumstances. He also challenges
the court’s application of an obstruction of justice enhancement and denial of
acceptance of responsibility at sentencing. We affirm.

I.    Background

      On February 16, 2018, just before 10:00 a.m., N.R. contacted her grandmother
and said that her mother, Karina LaFrancois, and her mother’s boyfriend, “Kenny”
Sanders, were “fighting really bad” and that “they need[ed] someone to come.” N.R.
is LaFrancois’ daughter, who was eleven years old at the time. N.R.’s grandmother
called 911 and relayed to the operator that she had been told an altercation was
occurring at LaFrancois’ house. N.R.’s grandmother also told the 911 operator that
she had trouble understanding N.R. and that she did not know if any weapons were
involved or whether the fight was verbal or physical. Additionally, N.R.’s
grandmother informed the operator that two additional minor children were inside the
residence, ages seven and one.

      The Dubuque Police Department dispatched officers to the LaFrancois
residence on a report of a domestic disturbance. Officer Joel Cross arrived first on
scene with Officer Tom Pregler close behind. Additional officers subsequently
arrived as well. When Officer Cross arrived at the residence, he saw N.R. “acting
excited” and gesturing through an upstairs window. After reporting his observations
to Officer Pregler, the two officers knocked on the front door. LaFrancois came

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, adopting the Report and Recommendation from the Honorable C.J.
Williams, then Chief United States Magistrate Judge for the Northern District of
Iowa.

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outside to talk to the officers. LaFrancois was visibly upset and unstable. The
officers observed red marks on LaFrancois’ face and neck. Despite her obvious
emotional state and the visible injuries, LaFrancois told the officers that everything
was okay. Officer Cross told LaFrancois that he understood that N.R. had heard the
disturbance and contacted law enforcement. LaFrancois became concerned and
responded, “Do not tell him that she called you guys.”

      Officer Pregler told LaFrancois that the officers needed to talk to Sanders.
LaFrancois made clear that she did not want the officers to go inside the house. She
offered to have Sanders speak with the officers outside. The officers initially
assented to allowing LaFrancois to go inside and get Sanders. However, when
LaFrancois opened the door to the residence, the officers heard crying inside. After
hearing the crying, the officers decided to enter the house to make sure that everyone
was safe. They opened the door and saw Sanders and LaFrancois standing just inside
the door and a crying infant located in a nearby playpen.

      As soon as the officers entered the home, Sanders became noncompliant,
uncooperative, and argumentative with the officers. When Officer Cross began to go
upstairs to check on N.R. and N.R.’s brother, who was also upstairs, Sanders
attempted to block him from going upstairs. The officers directed Sanders to sit on
the couch. Officer Cross found N.R. distressed and crying. She told Officer Cross
that Sanders “had a gun out,” that it “was downstairs,” and that she thought it was
located in one of the drawers below the “big mirror.” Officer Cross went back
downstairs and looked through the drawers where N.R. indicated the gun might be.
When he did not find a gun, Officer Cross returned upstairs to talk to N.R. again.
N.R. admitted that she did not see Sanders with a gun, but during the fight with
Sanders, she had heard her mother yelling, “Put the gun down! Put the gun down!”
N.R. said that it sounded like LaFrancois was being choked during the fight.




                                         -3-
        During these events, LaFrancois and Sanders had been separated, with
LaFrancois outside and Sanders on the couch. Officer Cross then went outside to
speak to LaFrancois. LaFrancois had been texting Sanders informing him that she
was telling the officers that nothing happened. Officer Cross pointedly asked
LaFrancois where the gun was located. LaFrancois initially denied there was a gun,
but quickly expressed concern that Sanders would find out that she had been talking
to the officers. LaFrancois asked if she could be arrested instead of Sanders. After
further questioning, LaFrancois admitted that she believed Sanders had a gun while
the couple were arguing and that it could be in the couch. Officer Cross went back
inside the residence, asked Sanders to get off the couch where he had been directed
to sit, and discovered a Smith & Wesson .380 caliber pistol in the couch cushions.

       Sanders was arrested on state domestic assault charges and a no-contact order
was issued. That order was modified to allow phone and written contact with
LaFrancois. When an officer went to execute the federal warrant on May 30, 2018,
for the instant case, he found Sanders and LaFrancois together. Sanders was arrested
for violating the no-contact order, and on May 31, 2018, the order was modified again
to prohibit all contact with LaFrancois. Despite the no-contact order, Sanders called
LaFrancois from the jail numerous times. He has asserted that he did not know the
no-contact order had been modified to once again prohibit all contact with
LaFrancois. During one recorded call, Sanders told LaFrancois that her statements
from the domestic “need to go away.” Sanders arranged for LaFrancois to get a new
phone and he called her on a new telephone number 71 times over a six-day period.

       Sanders entered a conditional guilty plea to being a prohibited person in
possession of a firearm. The court determined Sanders’ advisory Guidelines range
was 77–96 months. The court varied upward from the Guidelines range based on
Sanders’ violent criminal history and risk to the public, and sentenced him to the
statutory maximum term of 120 months’ imprisonment.



                                         -4-
II.   Discussion

      A.     Suppression Motion

      A mixed standard of review applies to the denial of a motion to suppress
evidence. We review the factual determinations underlying the district court’s
decision for clear error and the district court’s denial of the suppression motion de
novo. United States v. Harris, 747 F.3d 1013, 1016 (8th Cir. 2014).

       At the “very core” of the Fourth Amendment “stands ‘the right of a man to
retreat into his own home and there be free from unreasonable government
intrusion.’” Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United
States, 365 U.S. 505, 511 (1961)). The Fourth Amendment’s warrant requirement,
however, is subject to certain exceptions. One such exception applies to law
enforcement officers engaging in a community caretaking function. United States v.
Smith, 820 F.3d 356, 360 (8th Cir. 2016) (citing Cady v. Dombrowski, 413 U.S. 433,
441 (1973)). This exception allows a police officer to “enter a residence without a
warrant as a community caretaker where the officer has a reasonable belief that an
emergency exists requiring his or her attention.” Id. (quoting United States v.
Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006)). This court has determined that “[a]
search or seizure under the community caretaking function is reasonable if the
government interest in law enforcement’s exercise of that function, based on specific
and articulable facts, outweighs the individual’s interest in freedom from government
intrusion.” Id. (citing Harris, 747 F.3d at 1017).

       When examining whether the officers had a reasonable belief such that their
entry into LaFrancois’ home2 was a justifiable exercise of their community caretaking


      2
       For purposes of this opinion, we will assume, without deciding, that Sanders
has standing to challenge the search of the residence and decline to resolve the

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function, we look to the facts known to the officers at the time they made the decision
to enter. Smith, 820 F.3d at 360. The specific, articulable facts known to the officers
at the time they entered the residence include the information received from dispatch,
observations of the officers, and information obtained by talking to LaFrancois. The
officers were dispatched to the scene of a domestic disturbance. The first responding
officer observed a child in an upstairs window acting excited and gesturing at him.
LaFrancois exited the residence and closed the door behind her to speak to the
officers. Although LaFrancois said everything was okay, the officers observed
LaFrancois had visible injuries in the form of red marks on her face and neck and she
was acting emotionally and unstable. LaFrancois directed the officers to not tell
Sanders that her daughter had called for help. LaFrancois was so adamant about
keeping the officers outside and away from any other witnesses or evidence that
might be inside the house that she volunteered to get Sanders and bring him outside.
When the officers heard crying coming from inside the house, they decided to enter
to make sure everyone was safe.

       We are satisfied that the officers acted in their community caretaking function
when they entered LaFrancois’ house. The officers were dispatched to the scene of
a domestic disturbance. Once at the scene, the officers learned further details
indicating a serious concern for the safety of LaFrancois and the children who were
inside the house. LaFrancois had visible injuries consistent with a physical
altercation. LaFrancois expressed concern for her daughter and directed the officers
not to tell Sanders that her daughter was the one that reported the disturbance. A
child was seen in an upstairs window acting excited and gesturing at the first
responding officer. The record establishes that the officers had reason to believe that
a domestic violence suspect was inside the home with children. When LaFrancois



government’s standing argument. See United States v. Long, 906 F.3d 720, 724 (8th
Cir. 2018) (assuming, without deciding, the defendant has standing to challenge the
search of a rental vehicle).

                                         -6-
opened the door to get that suspect, the officers heard crying coming from inside.
The justification for the officers’ warrantless entry arises from their obligation to help
a child or children that could be injured inside or to ensure the safety of the children.
We conclude that the officers reasonably believed an emergency situation existed that
required their immediate attention in the form of entering LaFrancois’ home to ensure
that no one inside was injured or in danger. The officers’ warrantless entry was
permissible under the community caretaker exception.

       We further conclude that the scope of the encounter was carefully tailored to
satisfy the officers’ purpose for entry. Once they entered, the officers separated
Sanders and LaFrancois, with LaFrancois stepping outside. Officer Cross located
N.R., who told him that during the altercation she could hear her mother yelling “Put
the gun down! Put the gun down!” A warrant is not needed to search areas that may
conceal a threat if officers have an objectively reasonable basis to believe an
immediate act is required to preserve the safety of others or themselves. United
States v. Quarterman, 877 F.3d 794, 800 (8th Cir. 2017).

       Here, Officer Cross had an objectively reasonable belief that a gun was inside
the house. The search was conducted out of the officers’ legitimate concern for safety
and was limited to two places in the house: (1) where N.R. thought the gun might
have been placed, and (2) where LaFrancois believed the gun could be located.
Officer Cross found the gun in the second place. Exigent circumstances justified the
officers’ efforts to locate and secure the gun. United States v. Henderson, 553 F.3d
1163, 1165 (8th Cir. 2009) (“[B]ecause domestic disturbances are highly volatile and
involve large risks and because the police officers had reason to believe that a loaded
gun was in the bedroom, we think it is plain that exigent circumstances justified their
effort to secure the weapon.”).




                                           -7-
      B.     Obstruction of Justice

       Sanders argues the district court erred in applying a two-level enhancement for
obstruction of justice, which led to the denial of acceptance of responsibility. We
review a district court’s findings underlying an obstruction of justice enhancement
and acceptance of responsibility reduction for clear error. United States v. Jones, 612
F.3d 1040, 1046 (8th Cir. 2010) (quoting United States v. Calderon-Avila, 322 F.3d
505, 507 (8th Cir. 2003)). We review the court’s construction and application of the
Guidelines de novo. United States v. Belfrey, 928 F.3d 746, 750 (8th Cir. 2019)
(citation omitted).

       At sentencing, Sanders argued that his comment to LaFrancois that her
statements from the domestic “need to go away” was neither an attempt to influence
her testimony, nor was it related to the instant offense of conviction. He contends on
appeal that the comment was “a minuscule portion of a nearly ten-minute
conversation” and was “far too ambiguous to warrant” an obstruction of justice
enhancement under U.S.S.G. § 3C1.1. We give “great deference” to a district court
when it applies an enhancement for obstruction of justice or denies a reduction for
acceptance of responsibility. Calderon-Avila, 322 F.3d at 507 (per curiam).

      The district court found that Sanders intended to influence a witness or
attempted to do so when he told LaFrancois that her statements from the domestic
“need to go away.” The court has “broad discretion to apply section 3C1.1 to a wide
range of conduct.” United States v. Jensen, 834 F.3d 895, 900 (8th Cir. 2016)
(quoting United States v. Collins, 754 F.3d 626, 629 (8th Cir. 2014)). “[T]hreatening,
intimidating, or otherwise unlawfully influencing a . . . witness . . . directly or
indirectly, or attempting to do so” is an example of conduct covered under § 3C1.1.
U.S.S.G. § 3C1.1, cmt. n. 4.




                                         -8-
       Having reviewed the record, we conclude the district court did not clearly err
in its factual finding that Sanders’ statement was, at a minimum, an attempt to
influence a witness. Section 3C1.1 applies to conduct involving “cases closely
related to the defendant’s case.” Jensen, 834 F.3d at 900. The firearm in question
was alleged to have been used during a domestic assault, which was the event that
brought law enforcement officers to the residence. We affirm the district court’s
decision to increase Sanders’ offense level pursuant to U.S.S.G. § 3C1.1.


       An obstruction of justice enhancement under § 3C1.1 “ordinarily indicates that
the defendant has not accepted responsibility for his criminal conduct” as required for
a § 3E1.1 reduction. U.S.S.G. § 3E1.1 cmt. n. 4; United States v. Brown, 539 F.3d
835, 841 (8th Cir. 2008). Although there are “extraordinary” cases in which
adjustments under both §§ 3C1.1 and 3E1.1 may apply, United States v. Adejumo,
772 F.3d 513, 537 (8th Cir. 2014), we do not find this particular case to be
extraordinary. See United States v. Honken, 184 F.3d 961, 970 (8th Cir. 1999)
(noting that an obstructive defendant must “do more than merely cease obstructive
conduct and plead guilty to the underlying offense to earn a downward adjustment for
acceptance of responsibility”). The district court did not err in refusing to reduce
Sanders’ applicable Guidelines range to account for acceptance of responsibility.


III.   Decision


       We affirm the judgment of the district court.
                       ______________________________




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