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

No. 04-2489
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

ELI SANTIAGO,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 02 CR 384—Robert W. Gettleman, Judge.
                          ____________
   ARGUED APRIL 11, 2005—DECIDED NOVEMBER 3, 2005
                     ____________


  Before POSNER, RIPPLE, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. Eli Santiago was convicted by
a jury of cocaine and firearms offenses. He claims on appeal
that the prosecutor impermissibly commented on his
postarrest silence in violation of the rule of Doyle v. Ohio,
426 U.S. 610 (1976). He also argues that his written consent
to the search of his home was involuntary because it was
based on an express or implied threat that his fiancée and
their children would be taken into custody if contraband
were found there. Finally, he challenges his sentence under
United States v. Booker, 125 S.Ct. 738 (2005). Santiago’s
Booker claim will gain him a limited remand in accordance
with United States v. Paladino, 401 F.3d 471, 483 (7th Cir.
2                                                No. 04-2489

2005), but we reject his other arguments and affirm the
convictions.


                      I. Background
  Santiago was arrested following a controlled drug buy
orchestrated by the Drug Enforcement Administration
(“DEA”), Chicago police, and a confidential informant. On
April 22, 2002, the informant attempted to purchase a
kilogram of cocaine from a drug dealer named Eric Fritz.
Because Fritz did not have a full kilogram immediately
available, he told the informant he would have to “call this
dude.” Fritz then called Santiago’s cell phone. After the call
Fritz contacted the informant and said he “talked to the
guy” and the price for the kilogram of cocaine would be
$24,000.
  The buy was then arranged, and Chicago police observed
Santiago drive up to Fritz’s house. The two men met on
the sidewalk, and Santiago handed Fritz a green canvas
bag. The two then went inside Fritz’s home. A few minutes
later, they emerged from the home, drove away in sepa-
rate vehicles, and were stopped by police. Fritz took off on
foot and discarded a black plastic bag during his flight.
Police apprehended him and recovered the bag, which
contained a kilogram of cocaine. Santiago was arrested
without incident.
  Police then searched Fritz’s house and located the
green canvas bag but no additional drugs. After issuing
Miranda warnings to Santiago, DEA agents attempted to
secure his consent to search his home. Santiago was not
immediately forthcoming about where he lived, first
directing the officers to his mother’s home. Santiago’s
stepfather, Israel Figueroa, was present at Santiago’s
mother’s home when agents arrived with Santiago.
Figueroa denied that Santiago lived there but allowed the
agents to search a bedroom. Figueroa testified that he
No. 04-2489                                               3

heard the agents threaten to arrest Santiago’s fiancée and
send their children to the Department of Children and
Family Services if Santiago did not cooperate. Santiago
himself testified the agents were exhorting him to “be a
man,” identify his residence, and consent to a search. DEA
Agent James Loring denied any threats were made.
  After about fifteen minutes Santiago was taken outside
and agents searched the green bag, retrieving a health club
contract with Santiago’s fiancée’s name and address on it.
Confronted with this information, Santiago expressed
concern that his fiancée would be implicated if contraband
were found at their apartment. Santiago then consented to
a search of their apartment but sought assurances that his
fiancée and children would not be taken into custody. An
agent agreed, writing the following on a consent-to-search
form: “Any contraband found in the house does not belong
to Celia Matos or the Two Children.” Santiago then signed
the consent; the search of Santiago’s home turned up
cocaine, a cocaine press and other drug paraphernalia, and
two guns. After Miranda warnings Santiago gave a state-
ment to Agent Loring, admitting that the drugs, drug
paraphernalia, and guns belonged to him.
  The district judge denied Santiago’s motion to sup-
press the evidence obtained in the search, holding that
the consent was voluntary. The judge found that Santiago
had previous experience with the criminal justice system
and his consent was not the result of many hours of “badger-
ing” but, rather, was obtained within a short “15 or 20-
minute time frame” and without any physical or psychologi-
cal pressure. The judge found Figueroa to be “a highly
credible witness” and was “prepared to believe that there
was more said [to Santiago] than the [DEA] agent recalled,”
including something that “may have indeed made the
defendant think about the consequences to his family.” But
the judge held that the police had handled the matter “very
professionally” and that Santiago had freely negotiated with
4                                               No. 04-2489

them for an assurance “that his family would be kept out of
this.” The judge concluded that once the agents found the
health club contract with Santiago’s fiancée’s address on it,
Santiago knew “that there was contraband at that address,
became concerned, and rightfully so, about the conse-
quences that could result to his family,” and obtained a
commitment that his family would not be held responsible
for any contraband found during the search. The judge
found that although Santiago may have felt he had “no
choice” but to consent to the search, “it wasn’t because it
was involuntary; it was because of the facts he created by
having drugs and guns in his house.”
  At trial Santiago asserted a coercion defense. He testified
that Fritz forced him to store the cocaine and guns for him
because he defaulted on a loan. Santiago testified that he
borrowed $10,000 from Fritz, at interest of $2,500 per
month, but was unable to repay the money. When he asked
Fritz for an extension of time, Fritz became angry, slapped
him, and made him “hold” some things, including the drugs
and guns. Santiago testified that Fritz also warned him
that his family would get hurt if anything happened to
Fritz’s things.
  On cross-examination the prosecutor questioned Santiago
about the fact that he had not mentioned Fritz’s threats in
his custodial statement:
    Q: And you didn’t take that opportunity to tell Agent
       Loring “I’ve been threatened by Eric Fritz,” correct?
    A: No. . . .
    ....
    Q: And you did not tell him—
    A: No, I didn’t.
    Q: —that Eric Fritz was threatening you, correct?
    A: Correct.
No. 04-2489                                                 5

    ....
    Q: And when you had this moment where you were not
       afraid of Fritz, you didn’t say anything to the
       agents about being threatened, right?
    A: No, I did not.
    Q: So in this interview, you say you talked about Fritz.
       You said it was Fritz’s, right?
    A: I told him it was Fritz’s.
    Q: You didn’t say “Fritz threatened me”?
    A: Well, I never got asked that question.
    ....
    Q: But you did not tell Agent Loring that Fritz was
       threatening you, right?
    A: No, I did not.
During closing argument, the prosecutor referred to Santi-
ago’s failure to mention the alleged coercion in his state-
ment to police: “There were plenty of opportunities
to tell . . . law enforcement that he was being coerced.
But the coercion never happened.” This point was reiterated
several times during the government’s closing argument.
  The jury convicted Santiago of the five counts charged
in the indictment: conspiracy to possess cocaine with intent
to distribute, two counts of possession of cocaine with intent
to distribute, possession of a firearm in relation to drug
trafficking, and possession of a firearm by a felon. At
sentencing the district judge applied the Sentencing
Guidelines under the mandatory pre-Booker framework,
imposing a sentence of 110 months on each of the drug
offenses and one of the firearm offenses, to run concur-
rently, and a mandatory five-year consecutive sentence for
possession of a firearm in furtherance of a drug trafficking
offense pursuant to 18 U.S.C. § 924(c)(1)(A).
6                                               No. 04-2489

                      II. Discussion
    A. Due Process
  Santiago first argues that the prosecutor impermissi-
bly commented on his postarrest silence when cross-exam-
ining him and during closing argument, in violation of the
rule of Doyle. Because Santiago did not object below, our
review is for plain error. United States v. Chavez, 193 F.3d
375, 376 (5th Cir. 1999); Lieberman v. Washington, 128 F.3d
1085, 1095 (7th Cir. 1997).
  The Supreme Court held in Doyle that due process
prohibits the government’s use of a defendant’s postarrest,
post-Miranda silence for impeachment purposes. Doyle, 426
U.S. at 619. The defendants in Doyle did not make
any statements to police following Miranda warnings;
they then testified at trial that they were framed, and
the prosecutor cross-examined them on their failure to
mention the frame-up to the police after they were arrested.
This line of questioning, the Court concluded, was constitu-
tionally impermissible because a defendant who invokes his
right to remain silent following Miranda warnings has been
implicitly assured that his silence will not be used against
him. “In such circumstances, it would be fundamentally
unfair and a deprivation of due process to allow the ar-
rested person’s silence to be used to impeach an explanation
subsequently offered at trial.” Id. at 618.
  The Court revisited this issue in Anderson v. Charles, 447
U.S. 404 (1980). There, after receiving Miranda warnings,
the defendant told the arresting officer he had stolen a car
from a particular location, but at trial changed his story
and said the car was stolen from another spot. On cross-
examination the prosecutor asked the defendant whether he
thought it was “rather odd that if it were the truth that you
didn’t come forward and tell anybody at the time you were
arrested, where you got that car?” Id. at 406. The Supreme
Court distinguished Doyle, holding that its rationale “does
No. 04-2489                                                  7

not apply to cross-examination that merely inquires into
prior inconsistent statements” because “[s]uch questioning
makes no unfair use of silence because a defendant who
voluntarily speaks after receiving Miranda warnings has
not been induced to remain silent.” Id. at 408.
  This circuit has interpreted Doyle and Anderson to
allow prosecutors to demonstrate an “arguable inconsis-
tency” between a defendant’s postarrest statements and his
testimony. Smith v. Cadagin, 902 F.2d 553, 558-59 (7th Cir.
1990). Determining whether such an inconsistency exists
requires drawing “a fine line between impeachment by
showing a curious incompleteness in a suspect’s story and
impeachment from silence.” Smith, 902 F.2d at 557 (quoting
Phelps v. Duckworth, 772 F.2d 1410, 1421 (7th Cir. 1985)
(en banc) (Easterbrook, J., concurring)).
  Smith involved a state conviction in which the defen-
dant testified that his actions against the victim were just a
“practical joke.” Id. at 554-55. During cross-examination,
the prosecutor twice noted the defendant had never before
described his actions as a “practical joke”; instead, following
arrest, the defendant told the police things had gotten “out
of hand.” Id. at 554. Although saying a situation has gotten
“out of hand” is not always inconsistent with saying it was
a practical joke, we held the prosecutor’s line of questioning
was permissible because it was “an attempt to demonstrate
an ‘arguable inconsistency’ in the defendant’s account”
rather than a forbidden “attempt to exploit the defendant’s
silence.” Id. at 559.
  As in Smith, we find no Doyle due process violation here.
Santiago did not invoke his right to remain silent follow-
ing Miranda warnings, but gave a full inculpatory state-
ment to the police and then testified differently at trial. The
prosecutor was not exploiting Santiago’s silence but, rather,
was probing the arguable inconsistency between the story
Santiago initially told to the police and the testimony he
8                                                No. 04-2489

gave at trial. “Such questioning makes no unfair use of
silence because a defendant who voluntarily speaks after
receiving Miranda warnings has not been induced to
remain silent. As to the subject matter of his statements,
the defendant has not remained silent at all.” Anderson,
447 U.S. at 408.


    B. Consent to Search
  Santiago also attacks the district court’s denial of his
suppression motion. He argues he was under duress
when he consented to the search of his home because the
police threatened to arrest his fiancée and have his children
sent to protective custody.
  The voluntariness of a defendant’s consent to a search is a
factual finding reviewed for clear error. United States v.
Raibley, 243 F.3d 1069, 1076 (7th Cir. 2001). The voluntari-
ness inquiry turns on several factors, including: “(1) the
person’s age, intelligence, and education[;] (2) whether he
was advised of his constitutional rights[;] (3) how long he
was detained before he gave his consent[;] (4) whether his
consent was immediate, or was prompted by repeated
requests by the authorities[;] (5) whether any physical
coercion was used[;] and (6) whether the individual was in
police custody when he gave his consent.” Id. at 1075-76.
  Santiago attempts to analogize his case to United States
v. Ivy, 165 F.3d 397, 402-04 (6th Cir. 1998), but the facts of
that case, while superficially similar in some respects,
reveal egregious police conduct not in evidence here. In Ivy,
the police arrived at the defendant’s home looking for a
fugitive; the suspect they sought was not there, but one of
the occupants of the home fled, was chased, and was found
to be in possession of cocaine. The police then requested
Ivy’s consent to search the home, which was refused. Ivy’s
girlfriend and their infant child were also present, and the
girlfriend also refused consent to search. The police
No. 04-2489                                                  9

handcuffed her leg to a table and periodically took the baby
away from her, while telling Ivy to “be a man” and consent
to the search or they would arrest her and take the baby
into protective custody. This went on for an hour and a half
before Ivy relented and consented to the search. Id. at 402.
The Sixth Circuit concluded:
    After an hour and a half of this situation—of police
    threats to arrest [the girlfriend] and take the child, of
    [the girlfriend] being shackled to a table, of the child
    being taken from his mother’s arms, of repeated police
    solicitations for consent—Ivy finally acquiesced and
    signed the consent to search form. . . . One thing is
    certain: Ivy’s consent was not voluntarily imparted; his
    will was indeed overcome.
Id. at 404.
  This case differs from Ivy in several crucial respects, not
the least of which is the absence of any explicit finding
of a threat by the police. Contrary to Santiago’s char-
acterization of the record, the district judge did not actually
find that the agents had threatened to arrest Santiago’s
fiancée and have their children taken into protective
custody. At most, the judge found that “more was said than
the agent recalled,” which “may have indeed made the
defendant think about the consequences to his family.” But
the judge also stated what he thought “really . . . happened
here”: the agents, by searching Santiago’s gym bag, finally
learned his true address, and at that point Santiago
realized a search of his home likely would occur with or
without his consent. He then “became concerned, and
rightfully so, about the consequences that could result to his
family,” including, the judge found, that the police “could in
fact draw a conclusion that his girlfriend had something to
do with” the contraband Santiago knew they would find
when they went to his home. So he negotiated a commit-
ment that “his family [would] be kept out of this” in ex-
change for his consent to search.
10                                               No. 04-2489

  The district court concluded that Santiago’s “rightful
concern” for his family did not amount to “psychological
pressure.” The district court also found that the police
behaved “very professionally” and that the entire incident
took no more than fifteen or twenty minutes and was devoid
of any badgering or harassment. Under these circumstances
any analogy to Ivy is inapt. The district court’s voluntari-
ness finding was not clearly erroneous.


  C. Sentencing
  In imposing Santiago’s sentence, the district court treated
the Sentencing Guidelines as mandatory, in violation of
what by now is the well-known holding in Booker that the
Guidelines are to be deemed advisory. Booker, 125 S.Ct. at
764. Santiago did not object below, so our review is for plain
error. Following the procedure established in Paladino, 401
F.3d at 483, a limited remand is in order so the district
judge may tell us whether Santiago’s sentence would have
been different had the Guidelines been applied as advisory
rather than mandatory.
  Accordingly, the convictions are AFFIRMED; we retain
jurisdiction and order a limited REMAND pursuant to
Paladino.

A true Copy:
       Teste:

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



                   USCA-02-C-0072—11-03-05
