          United States Court of Appeals
                     For the First Circuit


No. 02-1338

                         UNITED STATES,

                            Appellee,

                               v.

                           IKE WEEMS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF RHODE ISLAND

       [Hon. Ernest C. Torres, Chief U.S. District Judge]


                             Before

          Torruella, Lynch, and Howard, Circuit Judges.


          Robert B. Mann, with whom Mann & Mitchell was on the
brief for appellant.

          Donald C. Lockhart, Assistant United States Attorney,
with whom Margaret E. Curran, United States Attorney, and Dulce
Donovan, Assistant United States Attorney, were on brief for
appellee.



                          March 6, 2003
            LYNCH, Circuit Judge.    Ike "True" Weems was convicted of

being a felon in possession of a firearm, a revolver which fired

shotgun shells.      See 18 U.S.C. § 922(g)(1) (2000).         He was

sentenced to 282 months of imprisonment.      On appeal, Weems argues

that the district court erred in denying his motion for judgment of

acquittal and his motion to suppress.        He also appeals various

aspects of evidentiary rulings, the jury instructions, and the

sentencing.    We affirm.

            We reject the argument that Jones v. United States, 529

U.S. 848 (2000), overruled prior law and now requires that the

interstate commerce nexus of § 922(g) be met by proof that it was

the defendant who transported the weapon beyond state lines.       We

also reject the argument that the phrase "not less than fifteen

years" for sentences under the Armed Career Criminal Act (ACCA),

see 18 U.S.C. § 924(e)(1), sets a maximum as well as a minimum

sentence.

                                    I.

            A brief summary of the facts sets the stage. On December

11, 2000, the date Weems was arrested, the police had information

that he was wanted on two state arrest warrants; that he had been

seen by an informant carrying the firearm at issue here earlier

that day; that he was suspected of armed robbery; and that he was

believed to be dealing drugs from a house at 11 Padelford Street in

Providence, Rhode Island, where he had been seen regularly.     After


                                    -2-
receiving a report from a confidential informant that Weems was at

the address, the police went quickly to the house without obtaining

a separate search warrant.       There, they saw Weems through a window

and entered the house.       Weems hid in the attic but his feet went

through the attic floor to the bedroom below, and the police

assisted his delivery into the room by pulling on his legs while he

clung to the rafters.       Weems fell on a bed and there was a tussle.

Within seconds the police spotted a gun on the bed where Weems had

fallen -- the same unusual gun, a "Thunder Five" revolver that

could fire shotgun shells, with which he had been seen earlier that

day.    He was arrested.

                                    II.

            We start with the appeal from the denial of the motion to

suppress, because its outcome affects the appeal from the motion

for judgment of acquittal.

A.     The Motion to Suppress

            We describe the facts found by the district court judge,

which were established at a two-day evidentiary hearing.

            Weems   moved   to   suppress   the   evidence   seized   at   11

Padelford Street, including the gun.        The basis for the motion was

that the initial entry into the residence, which was rented by

Katisha Smith, was not justified by the state arrest warrant for

Weems; that the police had used the arrest warrant as a pretext to

enter the house and did not have a search warrant as was needed;


                                    -3-
and that, in any event, the seized gun should be suppressed because

it   was   not   in   plain   view   and    it   was    found   pursuant   to   an

unauthorized search after a protective sweep had already taken

place.

            The district court assumed that the entry into the house

was valid and held it was irrelevant whether the house was Weems's

dwelling or only Smith's dwelling.               The court stated, "The only

issue here is whether the outstanding arrest warrant was used by

the agents as a pretext for conducting a warrantless search and

whether the items seized were the fruits of such a warrantless

search" as opposed to a protective sweep.              The court found that the

gun was in plain view and was lawfully seized pursuant to a

protective sweep.1       See Maryland v. Buie, 494 U.S. 325, 334-36

(1990).    Indeed, in discussing the seizure of the gun, the court

referred to concerns for the officer's safety "because Mr. Weems

had a lengthy criminal record for violent crimes, armed robbery."

The district court did suppress other evidence taken from the

house, which the court found was not seized pursuant either to

Weems's arrest or to a protective sweep.

            When the officers arrived at the address, they knew that

Weems had a lengthy criminal record, that there were two state



      1
          "A 'protective sweep' is a quick and limited search of
premises, incident to an arrest and conducted to protect the safety
of police officers or others." Maryland v. Buie, 494 U.S. 325, 327
(1990).

                                      -4-
arrest warrants for him, and that Weems had been seen carrying the

gun earlier that day.          One warrant was on a suspended sentence

violation related to a prior sentence for felony assault with a

dangerous weapon.      They also had information that "True" Weems and

"Understanding"       Yates   had     conducted    armed   robberies    in    the

Providence    area;    the    armed    robbers    were   known   as   the    "Five

Percenter Group." In late October, a reliable informant told Agent

Edward Troiano of the federal Bureau of Alcohol, Tobacco, and

Firearms that Weems had been staying off and on at 11 Padelford

Street for the past few weeks or months and was dealing drugs from

that address. In early November the police arrested Yates, but his

companions, including Weems, escaped.

             On December 11, an informant told Troiano that Weems was

then inside the Padelford Street home and that he was armed with

his shotgun revolver.         Troiano contacted Providence police, and

went with police officers to the address about half an hour later.

They did not try to obtain a search warrant for the residence.

             Outside the building, Troiano encountered Smith, who

lived there, and told her they had an arrest warrant for Weems.

She said that no one lived with her, that no one was in the house,

and that she did not know Weems.              A picture is worth a thousand

words: while he was talking to Smith out front, other officers saw

Weems stick his head and torso out of a rear window of the house.




                                        -5-
They called up to Weems but he disappeared inside.   He was told to

come outside; he did not.

            Troiano testified that, had the officers not seen Weems,

they would have left.     Because they did see Weems, it became a

different matter.   They told Smith they had seen Weems in the house

and asked for the key.   She declined, but when told the alternative

was that the police would break down the door, she handed over the

key.   The police opened the door to the house and yelled that they

were police and had a warrant for Weems's arrest.       There was no

response.

            The officers started a protective sweep of the house,

including the two bedrooms; this routinely involves looking to be

sure no one is hiding under beds or behind furniture.   The officers

did not find Weems, but they noticed a small opening to the attic

in a closet and yelled for Weems to come down.           They heard

footsteps above and sprayed pepper spray into the attic.     Weems's

feet broke through the ceiling once and he pulled himself back up

into the attic; when it happened again the officers pulled him

through into the room below.     Understandably, the officers paid

attention to his hands, which were still in the attic.    No officer

saw Weems hold a gun or saw a gun on his way down.       On the bed,

Weems landed face down and kept his hands underneath himself.     He

was subdued by the police and made to stand up; as he was being




                                 -6-
arrested and moved from the room, an officer looked down at the bed

and saw the shotgun revolver on the box spring.

              Weems argues that the entry into the house violated the

Fourth Amendment, as did the seizure of the gun.                  If Weems

effectively lived at 11 Padelford, the arrest warrant itself would

be enough to authorize entry into his residence to effectuate his

arrest.    Payton v. New York, 445 U.S. 573, 603 (1980); see also

United States v. Gay, 240 F.3d 1222, 1226-27 (10th Cir. 2001)

(Payton allows entry because officers had reasonable belief that

subject of arrest warrant lived at the house they entered).          There

is some evidence to support that view of the facts, but the

district court made no findings on this point, so we bypass it.2

              As this court stated, sitting en banc in Joyce v. Town of

Tewksbury, 112 F.3d 19, 21-22 (1st Cir. 1997) (en banc) (per

curiam), "even when armed with an arrest warrant, police must

generally have a search warrant to enter lawfully a third person's

home."    Accord Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st

Cir. 1999).      In each of these cases, the resident of the house

pursued the Fourth Amendment claim.          Our rule is based on Steagald

v.   United    States,   451   U.S.   204   (1981).   Steagald   considered

"whether, under the Fourth Amendment, a law enforcement officer may



      2
          In her testimony at the suppression hearing, Smith was
explicit that Weems did not live there and had no authority to
invite people in, although he had a key and paid her to rent a
closet.

                                      -7-
legally search for the subject of an arrest warrant in the home of

a third party without first obtaining a search warrant."         Id. at

205.       The Court concluded that "a search warrant must be obtained

absent exigent circumstances or consent."      Id. at 205-06.3   No one

seriously contends that Smith voluntarily consented, when presented

with the choice of giving over the keys or having her door broken

down.       Assuming Weems may raise the Fourth Amendment claim, the

question is whether exigent circumstances were present. See Joyce,

112 F.3d at 22.




       3
           The government argues that the Steagald rule does not
apply when it is the arrestee rather than the resident who raises
the Fourth Amendment issue. There is authority from some circuits
to support the government's view. See United States v. Gorman, 314
F.3d 1105, 1110-11 (9th Cir. 2002); United States v. Kaylor, 877
F.2d 658, 663 (8th Cir. 1989); United States v. Buckner, 717 F.2d
297, 299-300 (6th Cir. 1983).
           There are also, however, arguments against this narrow
view of the claim's availability to the arrestee. Steagald itself
says that "most modern commentators agree that a search warrant is
necessary to fully protect the privacy interests of third parties
when their home is searched for the subject of an arrest warrant."
421 U.S. at 208 n.3 (citing commentators). The leading treatise
describes analyses that would not apply Steagald to the arrestee's
claim as "bizarre reasoning [which] would render the Steagald rule
a virtual nullity." 5 W.R. LaFave, Search and Seizure, § 11.3(b),
at 143 (3d ed. 1996). "If individuals are precluded from objecting
to warrantless entries and searches of homes by their lack of
standing, little incentive remains for law enforcement officers to
comply with the warrant rules announced in Payton and Steagald."
J.D. Harbaugh & N.L. Faust, "Knock on Any Door" -- Home Arrests
After Payton and Steagald, 86 Dick. L. Rev. 191 (1982).
           Here, since we assume that Smith and not Weems is the
resident, the government's view might bar Weems from raising the
claim.    For purposes of this appeal, we will assume without
deciding, in Weems's favor, that he may bring the claim.

                                    -8-
          The government argued to the trial court that the initial

entry was justified by exigent circumstances and we agree.    Weems

was known to be armed with a dangerous weapon and to have a history

of assault; he was seen at the premises and was evidently trying to

escape; he had the opportunity to destroy or hide drugs or the gun,

both illegal in his hands.   There was a need to act quickly, and

Weems had been given ample opportunity to surrender. See generally

Fletcher, 196 F.3d at 49-51 (discussing exigent circumstances).

The initial entry did not violate the Fourth Amendment.

          The focus of Weems's argument to the district court was

that the arrest warrant was a "pretext" used by the Providence

police to raid a house for which they had no search warrant.    The

entire premise of the attack is misplaced.   The question is not one

of pretext, and the subjective intent of the police plays no role

in the analysis of a motion to suppress under the Fourth Amendment.

See Whren v. United States, 517 U.S. 806, 813 (1996).   Rather, the

question is whether the entry and later activities were objectively

reasonable under the Fourth Amendment.

          The district court was also quite correct to conclude

that the gun was found in plain view in the course of the arrest,

so we need not reach the other grounds for affirmance offered by

the government.




                               -9-
B.   Arguments Based on the First Trial

           The first trial on these charges ended in a mistrial, to

which Weems consented.         See United States v. Weems, No. 01-2080

(1st Cir. August 23, 2001) (order).

           Weems attempts to use the first trial in several ways.

He argues that the court erred in not granting a judgment of

acquittal at the end of the first trial.             Our recent decision in

United States v. Julien, 318 F.3d 316, 320-22 (1st Cir. 2003),

forecloses this claim, as Weems's counsel correctly acknowledged at

oral argument.

           Weems also argues that the prosecutor may not present a

theory at the second trial inconsistent with the theory argued at

the first trial.   We do not see why not.         Weems says his argument

follows from an emerging doctrine that a prosecutor may not argue

inconsistent theories to a jury.        In support he cites K. Miller,

Feature,   Combating    the     Prosecutor's    Improper    Utilization      of

Inconsistent Theories, 26 Champion 16, 18 (June 2002).                 See also

Smith v. Groose, 205 F.3d 1045, 1051-52 (8th Cir. 2000).               We see no

risk to defendants' rights when two different juries are involved.

In any event, we think the logic of Julien also forecloses this

attack.

           Finally,    Weems    attempts   to   go   back   to   the    initial

declaration of mistrial in order to undo it and raise a double

jeopardy argument now. This is another attempt to argue that there


                                    -10-
is insufficient basis to show that Weems consented to the mistrial.

We have already disposed of this claim in our order of August 23,

2001, in response to his earlier appeal, which stated, "the record

in   this   case       makes   clear   that    defendant    consented    to     the

declaration of a mistrial."

C.   Sufficiency of the Evidence at the Second Trial

            The facts which follow are described in the terms most

favorable to the verdict of guilt, as to the denial of the motion

for judgment on the pleadings.           United States v. Morillo, 158 F.3d

18, 22 (1st Cir. 1998).

            The crime of conviction requires that the government have

shown beyond a reasonable doubt that Weems was a "felon" and was

"in possession of a firearm."           That Weems was a felon there is no

dispute.    This aspect of his appeal questions whether he was "in

possession" of the firearm.

            Weems argues that there was insufficient evidence of

either actual possession or constructive possession.               The jury was

instructed on both theories.                 Weems correctly says that mere

proximity   to     a    weapon   is    not   sufficient    to   show   actual    or

constructive possession.         See United States v. Smith, 292 F.3d 90,

99 (1st Cir. 2002).        The defense theory was that Weems had only an

attenuated connection with 11 Padelford Street, that people went in

and out of the apartment (including some troubled youth who had met




                                        -11-
there that day in a program), and that the gun was left there by

someone else.

           The evidence was adequate; much more than mere proximity

was shown here.   The gun was found on the bed just after Weems fell

there and was made to stand up.        One of the officers who had

conducted the security sweep testified that, in doing so, he had

lifted the mattress and box spring and slid them apart somewhat,

and had noticed no gun.    Smith said she did not have any firearms

in the apartment.

           The gun came from somewhere.    Defense counsel did not

argue that the gun was planted by the police; in light of the

testimony by an informant that had seen Weems with this very gun

earlier, such a hypothesis for the sudden presence of the gun would

fail.   The fact that the police did not see the gun in Weems's hand

and failed to see it fall with him onto the bed hardly helps him.

A gun tucked in Weems's waistband or inside his shirt would be

easily dislodged in the scuffle.   The jury had sufficient evidence

to conclude that there was actual possession.

D.   Evidentiary Rulings

           A trial court's determination of the scope of cross-

examination is reviewed for abuse of discretion. See United States

v. Morla-Trinidad, 100 F.3d 1, 4 (1st Cir. 1996).          The same

standard applies to challenges to evidentiary rulings made by the




                                -12-
trial court, other than of legal interpretations of the rules. See

Smith, 292 F.3d at 98.

            Weems first objects to the government's cross-examination

of his witness, Sandra Hurt, a neighbor and relation of Smith who

was in front of 11 Padelford during some of the police activity.

The government was permitted to ask about what Hurt had observed at

the house on previous occasions, but not about what she had been

told by others.    She testified as to "activity" at 11 Padelford but

did not specify what it was.           Weems objects on appeal that the

witness left the clear and prejudicial impression that this was a

drug house.      At trial the objections were intermittent but, in

Weems's favor, we will take them as preserved.                 As in Smith, 292

F.3d at 97-98, the evidence of drug dealing at the house was

relevant.   It certainly gave Weems a motive to have the gun on him.

See Fed. R. Evid. 404(b).             Indeed, given the defense theory,

Smith's testimony could be viewed as helpful to Weems, which may

explain the intermittent nature of the objections.                In any event,

the   district   court    did   not   abuse   its   discretion      in   finding

prejudice outweighed by the probative value of this evidence.

            Potentially    more   significant       is   the    restriction   of

Weems's cross-examination of a Providence detective concerning

certain details of the lenience granted to the informant on other

charges.    That informant's crucial statements both tied the weapon

to Weems and supported the exigent circumstances entry.                  However,


                                      -13-
no proper foundation was laid for the particular questions at

issue.   Moreover, the informant's credibility was roundly attacked

in other portions of cross-examination, which elicited both the

existence of a cooperation agreement and the informant's prior

criminal record.     The additional examination that was denied could

have elicited no more than a feather's weight on top of what was

before the jury about his credibility.           There was no error.

              Finally, Weems appeals from restrictions on his cross-

examination of Troiano about the failure to get a search warrant

and   about    controlled   weapons    buys.      Our   disposition   of   the

suppression issue renders these lines of questioning immaterial.

E.    Jury Instructions

              The jury was instructed that the government had to show

that the gun had "previously traveled in interstate commerce or it

previously [had] been transported across State lines, even though

it wasn't in the Defendant's possession at the time."             The court

also instructed that the government did not have to show that

defendant transported the gun across state lines.           Weems belatedly

requested an instruction that the jury had to find that Weems

himself caused the gun to be transported across state lines.

              Putting aside the issue of possible waiver, we reject the

argument.      The proposed instruction was an incorrect statement of

the law.       The instruction given followed Scarborough v. United

States, 431 U.S. 563, 575 (1977).              We do not view the Supreme


                                      -14-
Court's decision in Jones, 529 U.S. at 848, as altering this

precedent to require that the felon be the one who transported the

firearm in interstate commerce.    Nor do the other circuits which

have addressed the question. See United States v. Lemons, 302 F.3d

769, 771-73 (7th Cir.), cert. denied, 123 S. Ct. 642 (2002); United

States v. Singletary 268 F.3d 196, 199-205 (3d Cir. 2001), cert.

denied, 535 U.S. 976 (2002); United States v. Santiago, 238 F.3d

213, 215-17 (2d Cir.), cert. denied, 532 U.S. 1046 (2001);   United

States v. Dorris, 236 F.3d 582, 584-86 (10th Cir. 2000), cert.

denied, 532 U.S. 986 (2001).

           Weems raises other objections to the jury instructions on

appeal, but concedes that he failed to preserve them before the

district court.   The standard of review is therefore plain error,

United States v. Crochiere, 129 F.3d 233, 237 (1st Cir. 1997), and

his arguments are without merit.

F.   Sentence

           Playing off Apprendi v. New Jersey, 530 U.S. 466 (2000),

Weems makes two arguments to challenge his sentence, one of which

we have already rejected and the other of which we reject now.

           In United States v. Moore, 286 F.3d 47, 50-51 (1st Cir.),

cert. denied, 123 S. Ct 242 (2002), we rejected the argument that

the government must prove beyond a reasonable doubt at trial the

predicate convictions underlying an ACCA sentence.




                                -15-
           We now reject the argument that the phrase "not less than

fifteen years" in the ACCA is a statutory maximum as well as a

minimum.    See 18 U.S.C. § 924(e)(1).      As the district court

correctly stated, the "not less than" language does not establish

a statutory maximum. In fact, the maximum is life imprisonment and

Weems was sentenced below that, so no Apprendi problem is raised.

See United States v. Mack, 229 F.3d 226, 229 n.4 (3d Cir. 2000),

cert. denied, 532 U.S. 1045 (2001).

G. Conclusion

           The conviction and sentence are affirmed.




                                -16-
