
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-2088                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ROBERT RAPOSA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Lynch, Circuit Judge,                                       _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________               Robert B. Mann, with  whom Mann & Mitchell was on brief, for               ______________             _______________          appellant.               Margaret Curran, with whom Sheldon Whitehouse, United States               _______________            __________________          Attorney, and Zechariah Chafee, Assistant United States Attorney,                        ________________          were on brief, for the United States.                                 ____________________                                     May 29, 1996                                 ____________________                   LYNCH, Circuit Judge.  Following a plea of guilty to one                          _____________            count of  possessing heroin  with intent to  distribute, Robert            Raposa was sentenced to a  term of 30 months imprisonment.   He            appeals   that  sentence,  arguing   that  the  district  court            erroneously  included  as  "relevant  conduct,"   see  U.S.S.G.                                                              ___              1B1.3 (Nov. 1994), his possession, with intent to distribute,            of a substantial quantity of cocaine that the court had earlier            ordered  suppressed as the product  of an illegal  search.  The            consideration,  inter  alia,  of   the  suppressed  cocaine  as            "relevant   conduct"   increased  the   defendant's  Guidelines            sentencing range from 10-16 months to 30-37 months.  The latter            was  the same  as the  range  that would  have obtained  if the            defendant  had been convicted on  the cocaine count  as well as                                _________            the heroin count.                   We  are asked  to  decide whether  the Fourth  Amendment            exclusionary  rule   applies  in  the  context   of  Sentencing            Guidelines proceedings, at least on the facts of this case.  On            the record before us, however,  the resolution of that question            is not necessary  to the decision of this appeal.   We decline,            therefore, to reach that important question here, preferring to            leave it for a future case.  Instead, we affirm the defendant's            sentence on the  ground that the district court's findings were            amply supported  by statements concerning the  cocaine provided            by   the   defendant  and   incorporated  in   the  Presentence            Investigation Report ("PSR"), and on which  he relied to obtain            a reduction in his sentence for acceptance of responsibility.                                          -2-                                           I                   On  February   10,   1995,  two   narcotics   detectives            interrupted a drug  deal in  progress in an  alley in  downtown            Providence.   The defendant, Robert  Raposa, was sitting in the            driver's seat of a parked  white Mercury Sable, doing  business            with several  men standing at  his window, when  the detectives            approached   and  identified  themselves  as  police  officers.            Raposa bolted  out of  the car  and ran,  dropping a  bundle of            heroin  packets labelled  "Die Hard" as  he fled.   One  of the            officers picked up the  heroin packets and gave chase.   Raposa            was apprehended.  The officers brought him back to the scene of            the drug deal, where they found another bundle of heroin marked            "Die Hard" and  $140 in  cash on the  ground near the  Mercury.            Two  beepers  were  found  on  the  defendant, and  a  cellular            telephone in  the car.   Raposa was arrested  and taken to  the            central police station.                   After  a  short investigation,  the  detectives  went to            Raposa's apartment, while the  defendant remained in custody at            the station.  A woman answered the door.  The officers told her            that  Raposa had been arrested.   The woman  stated that Raposa            was her boyfriend and lived with her in the apartment.                   What happened  next was disputed.   The government would            later  assert that  the  woman consented  to  a search  of  the            apartment, and  that no search  was undertaken until  a consent            form  had been  signed.   The defendant  would contend  that no            valid  consent  was  ever  given,  and  that  his  girlfriend's                                          -3-            signature on  the form  had been coerced.   In  any event,  the            officers conducted a warrantless search of the apartment.  They            seized  three  large  bags  containing over  $13,000  worth  of            cocaine lying in a closet in one of  the bedrooms.  Back at the            police  station, Raposa was  informed of the  seizures.  Having            been  read his Miranda rights, he agreed to talk, and confessed                           _______            that the cocaine was his.                   Raposa was  charged with  possession of  cocaine (375.21            grams)  and  heroin  (less  than   5  grams),  with  intent  to            distribute. After initially pleading not guilty to both counts,            he moved to  suppress all of  the cocaine  that the police  had            found  in his apartment,  arguing that it  was the fruit  of an            illegal  search.   After an  evidentiary hearing,  the district            court  granted  the motion,  finding  that  the government  had            failed to prove that  Raposa's girlfriend had consented to  the            search.    The defendant  subsequently  pleaded  guilty to  the            heroin  charge  (Count  II),  and  the  government  voluntarily            dismissed the cocaine charge (Count I).                                           II                   Raposa's sentence for his heroin conviction was governed            by U.S.S.G.    2D1.1.   Under  that  guideline, the  amount  of            heroin  possessed   by  the  defendant  (less   than  5  grams)            corresponds  to  a base  offense  level of  12,  which, charted            against  a  criminal  history  category of  I,  would  yield  a            Guidelines  sentencing range  of  10-16 months.   However,  the            district court found, over  the defendant's objection, that the                                          -4-            defendant's possession  of the  cocaine found at  his apartment            constituted  "part of the same  course of conduct  . . . as the            offense of conviction" under the Guidelines' "relevant conduct"            provision.  U.S.S.G.   1B1.3(a)(2).                   After expressing serious reservations about the fairness            of considering  illegally seized  evidence for purposes  of the            Guidelines'  relevant  conduct provisions,  the  district court            concluded,  relying  on cases  from  other  circuits, that  the            exclusionary  rule did not apply at sentencing.  The court thus            incorporated the cocaine into the total drug quantity for which            defendant  was to be sentenced, pushing the offense level up to            22.     After  subtracting  three  levels   for  acceptance  of            responsibility,  the court arrived at  a total offense level of            19, yielding a  final sentencing  range of 30-37  months.   The            court  imposed a sentence of 30 months, and the defendant filed            this appeal.1                                          III                   To date,  five circuit  courts of appeal  have addressed            the  issue of  whether the  Fourth Amendment  exclusionary rule            prohibits a sentencing court from  considering illegally seized            evidence for purposes of determining or enhancing a defendant's                                            ____________________            1.  After acknowledging that defendant had raised a substantial            issue for  appeal, the  district court granted  the defendant's            request that he be permitted to remain released on bail pending            appeal of the sentence.                                          -5-            Guidelines sentence.2  Each  of these courts has held  that the            exclusionary rule  does not  generally apply in  the sentencing            context  and  that  there  is  no  blanket  prohibition on  the            consideration of  illegally  seized evidence  for  purposes  of            making the findings required under the Guidelines.   See United                                                                 ___ ______            States  v.  Jenkins,  4   F.3d  1338,  1345  (6th  Cir.   1993)            ______      _______            (rejecting, as  dicta, contrary statements in  United States v.                                                           _____________            Nichols, 979 F.2d 402,  410-11 (6th Cir. 1993), aff'd  on other            _______                                         _______________            grounds, 114 S. Ct. 1921 (1994)), cert. denied, 114 S. Ct. 1547            _______                           _____ ______            (1994); United States v. Tejada, 956 F.2d 1256, 1262 (2d Cir.),                    _____________    ______            cert.  denied, 506 U.S. 841 (1992); United States v. Lynch, 934            _____  ______                       _____________    _____            F.2d 1226,  1236-37 (11th Cir.  1991), cert.  denied, 502  U.S.                                                   _____  ______            1037  (1992); United States v.  McCrory, 930 F.2d  63, 69 (D.C.                          _____________     _______            Cir. 1991), cert. denied, 502  U.S. 1037 (1992); United  States                        _____ ______                         ______________            v. Torres, 926 F.2d 321, 325  (3d Cir. 1991).  The rule adopted               ______            in these cases  has not been met with universal  acclaim.  See,                                                                       ___            e.g.,  United States v. Jewel,  947 F.2d 224,  238-40 (7th Cir.            ____   _____________    _____            1991) (Easterbrook, J., concurring);  McCrory, 930 F.2d at 185-                                                  _______            87 (Silberman,  J., concurring); Wayne R. LaFave,  1 Search and                                                                 __________                                            ____________________            2.  There  are also  several  reported cases  that address  the            issue in the pre-Guidelines context.  See United States v. Lee,                                                  ___ _____________    ___            540 F.2d 1205, 1210-12  (4th Cir.), cert. denied, 429  U.S. 894                                                _____ ______            (1976); United States v. Vandemark, 522 F.2d 1019, 1021-25 (9th                    _____________    _________            Cir. 1975); United States  v. Schipani, 435 F.2d 26,  27-28 (2d                        _____________     ________            Cir.  1970), cert.  denied,  401 U.S.  983  (1971); Verdugo  v.                         _____  ______                          _______            United  States, 402  F.2d 599,  610-13  (9th Cir.  1968), cert.            ______________                                            _____            denied, 397 U.S. 925 (1970).            ______                                          -6-            Seizure   1.6, at  40-41 (2d ed. Supp. 1995).3   This court has            _______            not yet decided the issue.                   Although  the parties have ably argued  to us the merits            of each side of the debate, a review of the record requires the            conclusion  that this case  does not present  a proper occasion            for us to decide this important question.                   After the defendant agreed to plead guilty to the charge            of possessing  heroin with  intent to distribute,  the district            court ordered that  a PSR be  prepared.  In  setting forth  his            version  of the facts for  inclusion in the  PSR, the defendant            (through  his counsel) provided  the federal  probation officer            with  a signed statement in which  he voluntarily admitted that                                                  ___________ ________            he  owned  the  cocaine that  was  found  in  his apartment  on            February  10, 1995.   The  statement was  incorporated verbatim            into the PSR.  It declared, in relevant part:                   I understand the  police recovered two bundles of                   heroin  near  my car  [on  February  10].   Those                   bundles  of  heroin were  my  heroin.   I  accept                   complete responsibility for  my actions.  I  also                   accept  responsibility for  the cocaine  found at                   [my  apartment] . . . .  I have  always  accepted                   responsibility  for this cocaine.   At the police                   station, on the day of my arrest I made a  signed                   statement.  In that statement I clearly  accepted                                            ____________________            3.  See also Todd Flaming, Comment, Laundering Illegally Seized                ________                        ___________________________            Evidence Through the Federal  Sentencing Guidelines, 59 U. Chi.            ___________________________________________________            L. Rev.  1209 (1992); Victor J. Miller, Note, An End Run Around                                                          _________________            the  Exclusionary Rule:  The Use  of Illegally  Seized Evidence            _______________________________________________________________            Under  the Federal Sentencing Guidelines, 34 Wm. & Mary L. Rev.            ________________________________________            241  (1992);  Clinton  R.  Pinyan,  Comment,  Illegally  Seized                                                          _________________            Evidence at Sentencing: How to Satisfy the Constitution and the            _______________________________________________________________            Guidelines With an "Evidentiary" Limitation, 1994 U. Chi. Legal            ___________________________________________            F. 523 (1994).                                          -7-                   responsibility for  the cocaine.[4]  The  cocaine                   was found  in a  spare bedroom closet.   I accept                   complete responsibility for my  actions with  the                   cocaine[5]  as I  did with the  heroin [footnotes                   added].            The defendant lodged  no objection nor attempted to reserve any            Fourth  Amendment argument  specifically  with respect  to  the            PSR's recounting of these  admissions.6  Indeed, based in  part            on  these statements,  the  defendant  successfully  argued  at            sentencing  for  a  three-level  reduction  in  his  Guidelines            offense level under U.S.S.G.   3E1.1.                   Whatever  force  the  exclusionary  rule  might have  at            sentencing, it clearly could not have barred the district court            from considering  the defendant's voluntary  statements as  set            forth  in the PSR.  Cf. United  States v. Patino, 862 F.2d 128,                                ___ ______________    ______            132-34 (7th Cir. 1988) (holding  second confession not to  have            been obtained in violation of Fourth Amendment where sufficient            time had passed since illegal search and initial confession and            where intervening circumstances were benign), cert. denied, 490                                                          _____ ______                                            ____________________            4.  It  appears, although  the  record is  not clear,  that the            statement given by Raposa to the police on February 10 was also            covered by the district court's suppression order.            5.  The  defendant further  admitted,  elsewhere  in this  same            statement,  that the  quantity of cocaine  he possessed  was at            least  equal to  the amount  charged in the  indictment (375.21            grams).            6.  Defendant's PSR statement was not made under any promise of            immunity.   Cf. United States  v. Conway, 81  F.3d 15 (1st Cir.                        ___ _____________     ______            1996).                                          -8-            U.S. 1069 (1989).7   The  portion of the  PSR containing  those            statements, to  which defendant  declined to  object (and  as a            result of which he received acceptance-of-responsibility credit            under  the  Guidelines), provides  an  independently sufficient            ground for the district court's finding at  sentencing that the            defendant possessed the cocaine  at issue.8  See United  States                                                         ___ ______________            v. Blanco, 888  F.2d 907,  908-09 (1st  Cir. 1989)  (permitting               ______            proof at  sentencing of  uncharged quantities of  drugs through            statements in PSR to which defendant failed to object).                   Thus,  on  the record  before  us, the  question  of the            exclusionary rule's applicability at sentencing has  no bearing            on the outcome of this appeal.  Cf. New England Legal Found. v.                                            ___ ________________________            Massachusetts Port  Auth., 883  F.2d 157,  176 (1st Cir.  1989)            _________________________            ("longstanding precedent" requires courts  to "avoid ruling  on            constitutional  issues  when  non-constitutional   grounds  are            dispositive").   Wholly  apart  from any  consideration of  the            suppressed  cocaine  evidence, the  portions  of  the PSR  that                                            ____________________            7.  Defendant  does not and  could not credibly  argue that the            statements recounted  in the  PSR  constituted a  fruit of  the            illegal  search  conducted  on the  day  of  his  arrest.   The            statement provided  by defendant  to the probation  officer was            voluntarily submitted, presumably  with the advice of  counsel.            Furthermore,  the  statement  was provided  after  the district                                                        _____            court  had ruled on the defendant's suppression motion, so that            defendant  could make  no  claim that  he  was unaware  of  his            rights.    The provision  of  the  statement to  the  probation            officer  was "sufficiently  an act  of free  will to  purge the            primary  taint"  of the  illegal search.    Wong Sun  v. United                                                        ________     ______            States,  371 U.S. 471, 486  (1963); cf. Brown  v. Illinois, 422            ______                              ___ _____     ________            U.S. 590,  608-09 (1975)  (Powell, J., concurring)  (discussing            attenuation doctrine).            8.  Defendant  does   not  argue  that   the  relevant  conduct            guideline itself is unconstitutional.                                          -9-            recounted defendant's  admissions as to cocaine  possession, to            which  no  objection  was  recorded, provide  clear  and  ample            support for  the findings that  resulted in  the assignment  to            defendant  of a total offense level of 19 under the Guidelines.            Cf.  Murray  v.  United  States, 487  U.S.  533,  538-41 (1988)            ___  ______      ______________            (exclusionary  rule  does   not  affect  information  "cleanly"            obtained through "independent source" (quoting United States v.                                                           _____________            Silvestri, 787 F.2d 736, 739 (1st Cir. 1986), cert. denied, 487            _________                                     _____ ______            U.S.  1233  (1988))).   Because this  aspect  of the  record is            dispositive in favor of affirmance, we need not decide  whether            the exclusionary rule applies at sentencing.                                           IV                   For  the  foregoing reasons,  we  decline  to reach  the            question of  whether  the Fourth  Amendment  exclusionary  rule            applies in  the context of  Guidelines sentencing proceedings,9            and  we uphold the sentence imposed by the district court based            solely on our  conclusion that it  was adequately supported  by            the facts established in the unobjected-to portions of the PSR.                                            ____________________            9.  We  therefore  need  not  comment  on  the  merits  of  the            government's contention at  oral argument  that any  unfairness            that might  result from not  applying the exclusionary  rule at            sentencing could  be alleviated by invoking,  as warranted, the            due    process    prohibition   against    "sentencing   factor            manipulation."  See United States v. Egemonye, 62 F.3d 425 (1st                            ___ _____________    ________            Cir.  1995);  United States  v. Montoya,  62  F.3d 1  (1st Cir.                          _____________     _______            1995);  cf. Jenkins, 4 F.3d  at 1345 (exclusionary  rule may be                    ___ _______            applied  at sentencing,  as  exception to  general rule,  where            defendant shows that illegal  search was conducted for specific            purpose of obtaining sentence enhancement); Tejada, 956 F.2d at                                                        ______            1263  (same); McCrory, 930 F.2d  at 69 (same);  cf. also Lynch,                          _______                           ________ _____            934 F.2d  at 1237  n.15 (reserving the  question); Torres,  926                                                               ______            F.2d at 325 (same).                                          -10-                   Affirmed.                   _________                                          -11-
