                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-3725
                                     ___________

United States of America,                 *
                                          *
              Appellee,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Nebraska.
Dale Gaver,                               *
                                          *
              Appellant.                  *
                                     ___________

                              Submitted: March 14, 2006
                                 Filed: June 27, 2006
                                  ___________

Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

      Dale Gaver conditionally pled guilty to unlawful possession of a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 29
months’ imprisonment. Gaver appeals the denial of his motion to suppress evidence
and his sentence. We affirm.

       On July 29, 2004, a judge in Nebraska issued a warrant to search Gaver’s
residence for controlled substances. Pursuant to the request of investigating officers,
who cited information giving reason to believe that there were rifles and handguns in
the residence, the issuing judge specified that the officers were authorized to enter the
residence without knocking and announcing their presence. See Neb. Rev. Stat. § 29-
411. Upon executing the warrant, the officers seized methamphetamine and five
firearms.

        After he was indicted, Gaver filed a motion to suppress the evidence seized
from his home, arguing that the no-knock entry was inconsistent with the Fourth
Amendment. A magistrate judge1 recommended denial of the motion, finding that the
officers had reasonable suspicion that knocking and announcing their presence would
threaten their safety, inhibit their investigation, or be futile, and that, in any event, the
officers had acted in good-faith reliance on the warrant. The district court2 disagreed
that a no-knock entry was reasonable, but concluded that the officers reasonably relied
on the warrant, and denied the motion to suppress.

       Gaver then entered a conditional plea of guilty pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), reserving his right to appeal the denial of his motion
to suppress. Gaver stipulated to applicable sentencing guideline provisions that
resulted in an advisory guideline range of 37 to 46 months’ imprisonment. At
sentencing, the court chose a sentence at the low end of the advisory range, and then
subtracted eight months as credit for time already served in state custody in
connection with a prosecution of state offenses arising from the same operative facts
that led to the federal conviction. Gaver’s ultimate sentence, therefore, was 29
months’ imprisonment.

      On appeal, Gaver argues that the evidence gained from the search of his home
should have been suppressed. According to Gaver, the search was not reasonable


       1
      The Honorable F. A. Gossett, United States Magistrate Judge for the District
of Nebraska.
       2
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.

                                            -2-
under the Fourth Amendment, because the officers entered the residence without
knocking and announcing their presence. See Wilson v. Arkansas, 514 U.S. 927, 931-
36 (1995). He further disputes the district court’s conclusion that the evidence should
be admitted because the officers acted in a good-faith reliance on a “no-knock” search
warrant issued by a neutral magistrate.

       Since the district court’s ruling, the Supreme Court has held that the
exclusionary rule does not apply to violations of the knock-and-announce requirement
of the Fourth Amendment. Hudson v. Michigan, No. 04-1360, 2006 WL 1640577, at
*6 (U.S. June 15, 2006). Gaver’s motion to suppress was premised entirely on his
contention that officers violated the Fourth Amendment by failing to knock and
announce their presence, and Hudson disposes of his claim. We need not consider
whether the officers acted reasonably by entering without knocking and announcing,
because even if there were a violation of the Fourth Amendment, the exclusionary rule
would be inapplicable.

       Gaver also argues that his sentence was unreasonable. He asserts that the
district court gave the sentencing guidelines controlling weight and did not consider
the other factors identified in 18 U.S.C. § 3553(a). It is evident, however, that the
court did consider Gaver’s request for a “downward departure or a deviation” based
on his post-offense rehabilitation and other circumstances, (S. Tr. at 12), and that the
court understood its authority to vary from the advisory guidelines, but simply
declined to do so. Gaver also contends that the seriousness of his offense and his
personal problems with controlled substances and alcohol compelled a more lenient
sentence. But Gaver stipulated to the advisory guideline range in his plea agreement,
and a properly calculated guideline sentence is presumptively reasonable. United
States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005). That Gaver has struggled
with substance abuse does not necessarily require a non-guidelines sentence, cf.
United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006), and the district court
found nothing “extraordinary” about his acceptance of responsibility or his

                                          -3-
participation in substance abuse treatment while on pre-trial release. (S. Tr. at 17-18).
Gaver benefitted, moreover, from the district court’s decision to reduce his sentence
by eight months as a credit for his time already served in state custody, and we
conclude that the sentence of 29 months’ imprisonment was not unreasonable.

      The judgment of the district court is affirmed.
                     ______________________________




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