                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               MAR 4 2003
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                        Nos. 02-4013
                                                    (D.C. No. 2:00-CR-41-01-K)
 DANIEL LEE LARSON, also known as                            (D. Utah)
 Daniel Lee Larson, Jr.,

              Defendant - Appellant.


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee /
              Cross-Appellant,
                                                      Nos. 02-4016 & 02-4034
 v.                                                 (D.C. No. 2:00-CR-41-02-K)
                                                             (D. Utah)
 PAULINE K. BLAKE, also known as
 Patricia A. Christensen,

              Defendant - Appellant /
              Cross-Appellee.


                             ORDER AND JUDGMENT*




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE,
Circuit Judge.


       Defendants Daniel Larson and Pauline Blake, convicted of several drug-related

crimes and sentenced to lengthy terms of imprisonment, appeal from the district court’s

final judgment, asserting the district court erred in denying their motions to suppress

evidence. The United States has filed a cross-appeal challenging the district court’s

decision to depart downward from the guideline range in sentencing defendant Blake.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm the district court’s denial of

defendants’ motions to suppress, and reverse defendant Blake’s sentence and remand to

the district court for resentencing.

                                             I.

       On December 13, 1999, Detective Shaun Bufton, a deputy with the Utah County

Sheriff’s Office assigned to the Utah County Major Crimes Task Force, received a phone

call from a confidential informant indicating that a methamphetamine laboratory was

being stored in Unit 395 of the Beehive Storage Units in Draper, Utah. The informant

mentioned the names of defendants Larson and Blake (identified as “Patty Christensen”),

and Thomas K. Jones. The following day, Bufton and another task force member,

Detective Gary Powell of the Provo City Police Department, went to the Beehive Storage

Units to investigate. After a positive canine “alert” on Unit 395, Powell used a laptop

computer to draft an affidavit in support of a search warrant. Powell telephoned a state


                                             -2-
court judge and read the contents of the affidavit to the judge, who verbally authorized

Powell to sign a search warrant on the judge’s behalf. The warrant stated in pertinent

part:

        [Y]our affiant expects to locate items associated with the production of
        methamphetamine to include, glassware, chemicals associated with the
        production of methamphetamine, buy-owe sheets, cash, packaging material,
        scales, items used for the ingestion of the above-mentioned controlled
        substances and other items associated with the production/cooking of
        methamphetamine, other controlled substances, paraphernalia, buy-owe
        sheets, pipes, correspondence, and other items indicative of
        methamphetamine use/distribution.

ROA, Vol. IX, Exh. 2, at 2.

        Powell and Burton executed the search warrant for Unit 395. Upon entering the

storage unit, the officers encountered “a very strong and over powering chemical odor”

that they “associated with a methamphetamine lab.” Id., Vol. II at 14. Based upon the

odor, the officers concluded “there was some type of chemicals being stored in the

storage unit.” Id. Inside the unit, the officers found a Ford van, a seat from the van, and a

box containing some wires. The officers saw condenser columns and glass items often

associated with clandestine methamphetamine labs inside the van. They contacted their

supervisor and asked permission to move the van to a secure facility where they could

disassemble what they believed to be a meth lab inside the van. The officers cited the

extremely cold and windy weather, the confined area of the storage unit, and the fact that

processing the suspected lab would significantly impact the business of the storage units

(i.e., preventing the storage unit owner or renters from accessing their units). They

                                             -3-
received permission to move the van. The van was loaded onto a flat-bed truck and

moved to the Utah County Sheriff’s Office, where it was placed in a fenced-off impound

yard and processed by the officers.

       On January 2, 2000, Detective Bufton received another call from the informant.

The informant told Bufton that Jones, who had an outstanding board of pardons felony

warrant, and who allegedly was “a big player in the drug world,” was at a particular

building in the area of 700 South 500 West in Salt Lake City and was operating a

methamphetamine lab at the location. Id. at 67. Later that same day, another confidential

informant called Detective David Knowles, also a task force member, and gave him

similar information regarding Jones’ whereabouts. After conferring and comparing

information, Bufton, Knowles, and Powell located the building described. The officers

contacted the Salt Lake City Police Department and asked for the assistance of uniformed

officers in conducting a “knock and talk” at the building.

       After the uniformed officers arrived, Knowles and Powell knocked on the front

door of the building. A woman inside the building asked “who [they] were.” Id. at 19.

Knowles asked, “[I]s TK [Thomas Jones] here?” Id. at 98. The woman, responding from

inside, said, “[T]here’s no one here by that name.” Id. Knowles stated, “[W]e’re police

officers” and “we need to talk to you for a minute.” Id. The woman responded: “[H]ow

do I know you’re police officers?” Id. There was a spot on the painted window of the

door where the paint had chipped and Knowles “put [his] necklace badge out.” Id. At the


                                            -4-
same time, one of the uniformed officers stepped forward and told the woman she could

contact dispatch to confirm they were police officers. The woman opened the door and

the officers smelled an “overwhelming odor” normally associated with a

methamphetamine lab, coming from inside. Id. at 99. In addition, the officers heard “a

lot of movement inside, shuffling, . . . people moving around, people talking, male

voices,” and “saw people looking out . . . the front window.” Id. at 98. After observing

the officers, the woman closed the door. Knowles continued to ask if “TK” was there and

if they could talk to him, but the woman insisted he was not there. She proposed that

everyone in the building could come outside so that the officers could “see that TK

[wasn’t] there.” Id.

       Three people came out of the building: the woman, who was identified as

defendant Blake, defendant Larson, and Cory Matthews. Blake was carrying a large

butane torch and “some ph strips” (both of which are commonly associated with

methamphetamine production). Id. at 100. Bufton spoke to defendant Larson and

Knowles spoke to defendant Blake. Larson informed Bufton that he lived in the building

and that Jones had been there earlier. Bufton asked if he could go inside the building to

make sure Jones was not in the shop area in the back of the building, and Larson said,

“[Y]es, you can go in.” Id. At that same approximate time, defendant Blake, who was

also identified as living in the building, gave Knowles permission to go inside and

“look[,] but just for TK.” Id. at 100.


                                            -5-
       Blake unlocked the front door and entered the building ahead of Knowles, Bufton,

and two uniformed officers. As Knowles entered the building, he again smelled an

“overpowering” odor normally associated with a methamphetamine lab. Id. at 101. Both

Knowles and Bufton observed various items commonly associated with

methamphetamine production and use, including torches, glass pipe, and a Pyrex dish

containing a white substance that appeared to be methamphetamine. At that point,

Knowles told Blake he was “freezing the environment,” indicating he believed there was

illegal activity inside the building and that he had probable cause to obtain a search

warrant. Id. at 101. Because the officers had not swept the entire building, Knowles

went to the back of the building where he encountered a locked door that led to a shop

area. Knowles asked Blake if the keys she was holding would open the locked door and

Blake held up the keys and said, “[Y]es.” Id. Knowles took the keys, opened the door,

and entered the shop. According to Knowles, the instant he opened the door to the shop,

he smelled an overpowering odor normally associated with a methamphetamine lab and

observed a haze inside the area. Knowles also saw various items inside the shop that he

associated with a methamphetamine lab, including a “death bag” (used to vent fumes

resulting from the reaction of ephedrine reduction) in the rafters and various chemicals.

Bufton, who entered the shop area after Knowles, also observed tubing, chemicals,

bottles, and assorted lab equipment typically associated with a methamphetamine lab.

Based upon their observations, the officers cleared the building, placed the occupants


                                             -6-
under arrest, and obtained a search warrant for the building.

       Defendants Blake and Larson were indicted by a federal grand jury. They were

each charged with possession of methamphetamine with intent to distribute in violation of

21 U.S.C. § 841(a)(1); conspiracy to manufacture methamphetamine in violation of 21

U.S.C. § 846; establishing a place for the purpose of manufacturing, distributing, and

using methamphetamine in violation of 21 U.S.C. § 856(a)(1); possession of

pseudoephedrine in violation of 21 U.S.C. § 841(d)(2); possession of iodine in violation

of 21 U.S.C. § 841(d)(2); and attempting to manufacture methamphetamine in violation

of 21 U.S.C. § 846. In addition, Larson was charged with possession of a firearm in

furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Blake

and Larson moved to suppress evidence seized during the December 1999 search of the

storage unit and the January 2000 search of the building. After conducting an evidentiary

hearing, the district court denied defendants’ motions. Blake and Larson were convicted

on all counts charged in the indictment, Blake was sentenced to a term of imprisonment

of 210 months, and Larson was sentenced to a term of imprisonment of 384 months.

                                             II.

       In their respective appeals, defendants challenge the district court’s denial of their

motions to suppress. “On appeal from the denial of a motion to suppress, we view the

evidence in the light most favorable to the government and accept the district court’s

findings of fact unless clearly erroneous.” United States v. Neff, 300 F.3d 1217, 1219


                                             -7-
(10th Cir. 2002). The ultimate determination of reasonableness under the Fourth

Amendment is a question of law we review de novo. Id. at 1220.

                                   Search of storage unit

       Larson and Blake contend the law enforcement officers involved in the search of

the storage unit failed to record the telephonic application for the search warrant as

required by Utah law.1 The district court rejected defendants’ arguments, concluding

failure to record the telephone application was the result of a “technical problem” and, in

any event, there was no violation of defendants’ constitutional rights. ROA, Vol. I, Doc.

135 at 4. Utah law allows a law enforcement officer to obtain a search warrant by

telephonically contacting a state magistrate. Utah Code Ann. § 77-23-204(2). When

doing so, the officer is required to provide the magistrate with “sworn oral testimony”

describing the evidence upon which the officer is proceeding. Id. The officer’s sworn

testimony must “be recorded and transcribed,” and the transcribed testimony is “deemed

to be an affidavit.” Id.

       Here, it was uncontroverted that Detective Powell obtained a search warrant for

the storage unit by telephonically contacting a state court judge and reading to the judge


       1
          In its response, the government asserts that Blake lacks standing to challenge the
search of the unit. The district court reached no conclusion on this issue, and Blake has
not filed a reply brief. While the government may be correct, we are persuaded that Blake
nevertheless has standing to challenge the seizure and search of the van since she was its
registered owner. See United States v. Edwards, 242 F.3d 928, 937 (10th Cir. 2001)
(holding defendant had standing to object to search of personal luggage contained within
trunk of rental car).

                                             -8-
an affidavit he had drafted on his laptop computer at the storage unit site (and, in

addition, orally describing to the judge the proposed search warrant he had drafted on his

laptop computer). At the evidentiary hearing on the defendants’ motions to suppress,

Powell testified that he was aware of the statutory requirement that his conversation with

the judge be taped and transcribed, and that he attempted to comply with the requirement.

In particular, Powell testified he believed the Utah County dispatch center (which

apparently connected him to the judge) was taping the conversation. Powell and another

officer testified that they could not find the tape recording. Powell attributed the problem

to the fact that the dispatch center had moved to a new facility prior to his conversation

and “the lines weren’t marked.” ROA, Vol. II at 58.

       In United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 1999), we rejected the

assertion “that state law standards, rather than federal constitutional standards, . . . govern

the admissibility of evidence seized pursuant to [a] state warrant.” In doing so, we

emphasized “that ‘in federal prosecutions the test of reasonableness in relation to the

Fourth Amendment protected rights must be determined by Federal law even though the

police actions are those of state police officers.’” Id. (quoting United States v. Miller,

452 F.2d 731, 733 (10th Cir. 1971)). “The basis for this principle is that ‘the exclusionary

rule is only concerned with deterring [federal] Constitutional violations.’” Id. at 1265

(quoting United States v. Wright, 16 F.3d 1429, 1437 (6th Cir. 1994)). “Therefore ‘[t]he

fact that the arrest, search, or seizure may have violated state law is irrelevant as long as


                                              -9-
the standards developed under the Federal Constitution were not offended.’” Id. Le

disposes of defendants’ arguments. The fact that Powell and the state court judge may

have violated Utah law by failing to record their conversation does not render the warrant

improper under federal constitutional standards, and defendants do not assert otherwise.

       Defendants also suggest in passing that the search warrant violated Federal Rule of

Criminal Procedure 41(c)(2) which, similar to Utah law, requires a federal magistrate

issuing a telephonic search warrant to record and transcribe his or her conversation with

the officer seeking the warrant. The initial problem with this argument is that Rule

41(c)(2) is inapplicable since the search warrant was requested by a state law enforcement

officer and issued by a state court judge. See Fed. R. Crim. P. 41(a) (noting rule applies

where warrant is sought by federal law enforcement officer and granted by federal

magistrate judge). In any event, Rule 41(c)(2) provides no relief to defendants. The rule

in this circuit is that technical violations of Rule 41(c)(2) require suppression of evidence

only if (a) there has been a clear constitutional violation, (b) there was “prejudice” in the

sense that the search might not have occurred or would not have been so abrasive if the

technical requirements of Rule 41(c)(2) had been followed, or (c) there is evidence of

intentional and deliberate disregard of a provision in the rule. See United States v. Rome,

809 F.2d 665, 669 (10th Cir. 1987); see also United States v. Chaar, 137 F.3d 359, 362

(6th Cir. 1998). We are unable to discern any constitutional violation under the facts

presented here. Indeed, we conclude that the information set forth in Powell’s affidavit


                                             -10-
was sufficient to provide probable cause for the issuance of a search warrant. Further,

there was no “prejudice” in the sense that the search might not have occurred or would

have been different in scope had the conversation between the officer and the state court

judge been recorded. Finally, there was no evidence of intentional and deliberate

disregard of the technical recording requirements.

                                       Seizure of van

       In rejecting Larson’s motion to suppress, the district court concluded that the

“search warrant covered all items inside the storage unit, including the van and therefore,

the evidence found inside the van was legitimately seized.” ROA, Vol. I, Doc. 135 at 4.

Larson asserts seizure of the van from Unit 395 was improper because neither the

affidavit nor the search warrant mentioned the van or its owner (the van was actually

registered in the name of Pauline Christensen, an alias used by defendant Blake).

According to Larson, “[t]he fact that the van was registered to someone other than the

person who rented the storage shed [Larson] should have led the police to seek a second

warrant” for the van. Larson’s Br. at 31-32.

       “The scope of a warrant is a question of law which we review de novo.” United

States v. Ortega-Jiminez, 232 F.3d 1325, 1328 (10th Cir. 2000). “When interpreting

warrants, this court has adopted a standard of practical accuracy rather than technical

precision.” Id. (internal quotations omitted).

       The search warrant at issue here stated in pertinent part:


                                            -11-
              NOW, THEREFORE, YOU AND EACH OF YOU, are hereby
       directed to conduct a search of the storage shed #395 at Beehive Storage
       Units located [in] . . . . Draper, Utah. . . .
              That your affiant expects to locate items associated with the
       production of methamphetamine to include, glassware, chemicals associated
       with the production of methamphetamine, buy-owe sheets, cash, packaging
       material, scales, items used for the ingestion of the above mentioned
       controlled substances and other items associated with the
       production/cooking of methamphetamine, other controlled substances,
       paraphernalia, buy-owe sheets, pipes, correspondence, and other items
       indicative of methamphetamine use/distribution.
              IF YOU FIND THE DESCRIBED PROPERTY, you are directed to
       bring the property forthwith before me at the above Court or to hold the
       same in your possession pending further order of this court.

ROA, Vol. IX, Exh. 2 at 2.

       We agree with the district court that the van parked inside the unit was clearly

within the scope of the search warrant. The scope of a “premises” search warrant

“include[s] those automobiles either actually owned or under the control and dominion of

the premises owner or, alternatively, those vehicles which appear, based on objectively

reasonable indicia present at the time of the search, to be so controlled.” United States v.

Gottschalk, 915 F.2d 1459, 1461 (10th Cir. 1990). Although the van was not actually

owned by Larson, it was clearly under his control and dominion since it was located

inside the locked storage unit that he rented and controlled. Moreover, the officers

observed, in plain view through the windshield of the van, the various types of items

specifically listed in the search warrant and typically associated with a methamphetamine

lab. That fact, combined with the strong odor of methamphetamine, gave the officers a

reasonable basis for concluding that a methamphetamine lab, or at least the makings of

                                            -12-
one, was located inside the van. Thus, the seizure and search of the van did not violate

Larson’s Fourth Amendment rights.

                                     Search of building

       Larson and Blake assert numerous challenges to the district court’s refusal to

suppress evidence seized during the January 2000 search of the building in Salt Lake

City. Larson asserts that (1) the front porch of the building was part of its curtilage and

the officers were restricted from invading it without a warrant, (2) the officers “violated

the sanctity of the home” and effectively seized the building “by remaining on the porch

and continuing to knock and harass . . . Blake after she told them once that the person

they wanted [i.e., Jones] was not there,” Larson’s Br. at 21, (3) the consent to enter the

building was involuntary and the product of coercion, and (4) the officers took the keys to

the locked shop area without Blake’s consent. Blake asserts that (1) the search was

unlawful because it was made without a warrant and under a false pretext manufactured

by the officers (i.e., they were looking for Jones), (2) any consent she may have given for

the officers to enter the building was involuntary and the result of coercive police tactics,

and (3) any consent she may have given did not extend to the locked shop area and the

officers took the keys to the locked shop area without her consent.



Front porch - curtilage

       Larson’s curtilage argument (i.e., the officers were required to have a warrant to


                                             -13-
stand on the front porch of the building) hinges on the fact that the property was

surrounded by a tall chain-link fence, and the window on the front door had been

painted.2 Larson asserts these factors created an expectation of privacy that the

government was required to respect.

       The “touchstone” of Fourth Amendment analysis is whether an individual has a

reasonable expectation of privacy in the area searched or intruded upon by law

enforcement officers. Oliver v. United States, 466 U.S. 170, 177 (1984). The curtilage of

a home, which has been defined as “the area to which extends the intimate activity

associated with the ‘sanctity of a man’s home and the privacies of life,’” id. at 180

(quoting Boyd v. United States, 116 U.S. 616, 630 (1886)), is typically “afforded the most

stringent Fourth Amendment protection.” United States v. Martinez-Fuerte, 428 U.S.

543, 561 (1976). The question here is whether the front porch of the building reasonably

falls within the definition of “curtilage.”

       Contrary to Larson’s assertions, we conclude the front porch did not constitute part

of the building’s curtilage. More specifically, neither the presence of the chain-link

fence, through which the officers could see, nor the fact that the front door window had

been painted was sufficient to create any reasonable expectation of privacy with regard to

the front porch area. E.g., United States v. Santana, 427 U.S. 38, 42 (1976) (concluding



       2
         Larson asserted this argument in district court, but the court did not specifically
address it in denying Larson’s motion to suppress.

                                              -14-
defendant who was standing in doorway of her house was in a “public place” for purposes

of Fourth Amendment); United States v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982)

(concluding officer who photographed tire tracks around front porch of a rural home did

not invade the home’s curtilage). The officers’ entry onto the porch, for the purpose of

knocking on the front door, did not violate Larson’s Fourth Amendment rights.



Seizure of building

       Larson asserts the officers effectively seized the building, within the meaning of

the Fourth Amendment, when they remained on the front porch after Blake initially told

them Jones was not inside. In support of his argument, Larson cites United States v.

Jacobsen, 466 U.S. 109, 113 (1984), where the Court held that a “seizure” of property

occurs when there is some meaningful interference with an individual’s possessory

interests in that property.

       Larson’s argument finds no evidentiary support in the record. Although it is true

that Knowles and Powell remained on the front porch of the building after Blake initially

told them Jones was not inside, there is no indication that the detectives or the uniformed

officers supporting them took dominion and control of the building. Indeed, the contrary

is true, since Knowles and Powell made no attempt to enter the building, but instead

continued to knock in an attempt to persuade Blake to either step outside or allow them

inside. Further, Larson fails to explain why Blake and the other occupants of the building


                                            -15-
could not have ignored the officers and gone about their own affairs after Blake initially

told the officers that Jones was not there. Stated differently, Larson fails to establish that

the officers’ conduct outside the building “would have communicated to a reasonable

person that the person was not free to decline the officers’ requests or otherwise terminate

the encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991); cf. United States v. Jerez,

108 F.3d 684, 691-92 (7th Cir. 1997) (recognizing that a “knock and talk” is ordinarily

consensual unless coercive circumstances such as unreasonable persistence by the officers

turn it into an investigatory stop).



Voluntariness of consent

       Although Larson asserts that consent to enter the building was not voluntarily

given, it is unclear from his appellate brief whether he is focusing on the consent he gave

to Detective Bufton, the consent that Blake gave to Detective Knowles, or both.

Government witnesses testified at the evidentiary hearing that both Larson and Blake

gave consent to enter the building, but the district court made factual findings only with

regard to the consent given by Blake. Accordingly, we assume that Larson’s argument

focuses solely on Blake’s consent.

       The district court found that the officers individually questioned the three

occupants after they initially came out of the building, and that none of the occupants

were “handcuffed or placed under arrest” during the questioning. ROA, Vol. I, Doc. 135


                                             -16-
at 3. The court further found that “Blake gave permission for the officers to enter the

[building] for the purpose of searching for T.K. Jones.” Id. Based upon these findings,

the court concluded that Blake’s “consent . . . was given voluntarily.” Id. at 4.

         “Whether voluntary consent was given is a question of fact, determined by the

totality of the circumstances and reviewed for clear error.” United States v. Zubia-

Melendez, 263 F.3d 1155, 1162 (10th Cir. 2001). “The government bears the burden of

proving the consent was voluntary,” and “must show there was no duress or coercion,

express or implied, that the consent was unequivocal and specific, and that it was freely

and intelligently given.” United States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir.

1996).

         After reviewing the transcript of the evidentiary hearing, we conclude the district

court’s finding of voluntariness was not clearly erroneous. As the district court found,

none of the occupants of the building were arrested or handcuffed after they voluntarily

came out of the building. Instead, law enforcement officers spoke to them individually.

During the course of her conversation with Knowles, Blake gave Knowles permission to

enter the building to “look . . . just for TK.” ROA, Vol. II at 100. Detective Powell

overheard Blake’s grant of consent to Knowles. Notably, Blake did not testify at the

evidentiary hearing, and thus there is no testimony contradicting the officers’ testimony

regarding Blake’s grant of consent.




                                              -17-
Keys to shop area

       Both Larson and Blake assert that the search of the shop was improper because it

occurred only after Detective Knowles took the keys to the shop door from Blake and

opened the door. Since there is no evidence, however, that Blake attempted to prevent

Knowles from unlocking the shop door or otherwise attempted to revoke the consent she

initially gave to Knowles to enter the building and search for Jones, the real issue is

whether Knowles’ entry into the shop exceeded the scope of Blake’s consent.

       “The standard for measuring the scope of a suspect’s consent under the Fourth

Amendment is that of ‘objective’ reasonableness--what would the typical reasonable

person have understood by the exchange between the officer and the suspect?” Florida v.

Jimeno, 500 U.S. 248, 251 (1991). The scope of consent to search is a question of fact

subject to review only for clear error. See United States v. Pena, 920 F.2d 1509, 1514

(10th Cir. 1990).

       The district court found that Blake’s consent to search “extend[ed] to any area of

the dwelling that T.K. Jones could have possibly . . . been located,” including “the locked

room where the methamphetamine laboratory was located.” ROA, Vol. I, Doc. 135 at 5.

After reviewing the record on appeal, we are unable to conclude this finding was clearly

erroneous. As previously discussed, Blake agreed to let Knowles and the other officers

enter the building for the purpose of looking for Jones. Obviously, this consent extended

to any area in the building where a person could hide. Thus, it was reasonable for


                                             -18-
Knowles and the other officers to conclude they were free to look in any room in the

building, including the locked shop area. Blake was close to Knowles when he

encountered the locked door and responded “yes” when Knowles asked her if her keys

would unlock the shop door. Further, Blake did not object when Knowles took the keys,

opened the door, and entered the shop. In light of all these circumstances, we conclude

the district court was correct in finding that the search of the shop was within the scope of

Blake’s consent.



Lack of warrant/false pretenses

       Blake asserts that the search of the building was improper because the officers did

not have a search warrant and used false pretenses, i.e., a supposed interest in locating

Jones, for approaching and ultimately entering the building. We disagree. The “knock

and talk” strategy utilized by the officers in this case has been described as a “reasonable

investigative tool” for purposes of “seek[ing] to gain an occupant’s consent to search.”

United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). The fact that the officers

approached the building without a search warrant was not constitutionally problematic.

Further, the district court found that “[t]he purpose of the ‘knock and talk’ was to

ascertain whether or not T.K. Jones was at the [building].” ROA, Vol. I, Doc. 135 at 2.

Although Blake suggests this purpose was false, she points to no evidence that would

render the court’s factual finding clearly erroneous.


                                            -19-
                                             III.

       In its cross-appeal, the government challenges the district court’s decision to

depart downward from the guideline range in sentencing Blake.3 The validity of a district

court’s sentencing departure depends upon four inquiries: (1) whether the factual

circumstances supporting a departure are permissible departure factors; (2) whether the

departure factors relied upon by the district court remove the defendant from the

applicable guideline heartland thus warranting a departure; (3) whether the record

sufficiently supports the factual basis underlying the departure; and (4) whether the

degree of departure is reasonable. United States v. Goldberg, 295 F.3d 1133, 1137 (10th

Cir. 2002). We review these factors under a unitary abuse-of-discretion standard. Id. In

applying this standard, we “‘need not defer to the district court’s determination of an

issue of law.’” Id. (quoting United States v. Bennally, 215 F.3d 1068, 1073 (10th Cir.

2000)). Substantial deference must be granted to the district court, however, when

reviewing determinations that are “primarily . . . factual.” Id.

       The government asserts the district court’s departure was improper because Blake

did not receive credit for acceptance of responsibility, which the government asserts is a

prerequisite to a downward departure based on post-offense rehabilitation, because

Blake’s post-offense rehabilitation was not present to such an exceptional degree that it


       3
          The district court departed from the recommended guideline range of 360
months to life down to 210 months, a sentence that would be comparable to an offense
level of 36, rather than the offense level of 42 that applied to Blake.

                                             -20-
went beyond the contemplation of the guidelines or otherwise removed her from the

heartland of the guideline range, and because the district court failed to articulate any

reasoned justification for the degree of the departure. We reject the first two arguments,

but agree with the last one.

                    Lack of downward adjustment pursuant to § 3E1.1

       The government concedes that post-offense rehabilitation “may provide a basis for

departure.” United States v. Whitaker, 152 F.3d 1238, 1240 (10th Cir. 1998). The

government notes, however, that § 3E1.1 of the guidelines allows a sentencing court to

consider a defendant’s “post-offense rehabilitative efforts” in deciding whether a

defendant is entitled to a downward adjustment for acceptance of responsibility. See

U.S.S.G. § 3E1.1 cmt. n.1(g). In light of § 3E1.1, the government asserts that a defendant

must first establish entitlement to a downward adjustment for acceptance of responsibility

in order to be entitled to a downward departure based upon post-offense rehabilitative

efforts. Only then, asserts the government, can a defendant argue that post-offense

rehabilitative efforts are so extraordinary as to justify a downward departure. Because the

government did not assert this argument in the district court, it has been waived for

purposes of appeal. E.g., United States v. DeLuca, 269 F.3d 1128, 1135 (10th Cir. 2001).

                    Extent of Blake’s post-offense rehabilitative efforts

       The government next argues that, even assuming a departure was permissible in

the absence of a § 3E1.1 adjustment, Blake’s post-offense rehabilitative efforts were not


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so extraordinary as to justify a departure. Generally speaking, the circuits are in

agreement that, to warrant departure, post-offense rehabilitative efforts must be

“extraordinary or exceptional when compared to the rehabilitation of other defendants.”

United States v. Rudolph, 190 F.3d 720, 728 (6th Cir. 1999). As one court has indicated,

“[t]he touchstone of extraordinary rehabilitation is a fundamental change in attitude.”

United States v. Craven, 239 F.3d 91, 100 (1st Cir. 2001).

       Here, Blake asserted, and the district court agreed, that her efforts were

extraordinary. Those efforts, recounted in Blake’s “Position with Respect to Sentencing,”

include completion of a Coffee Klatch series (allegedly involving women’s health issues)

and a Cocaine Anonymous program, attendance at the Uplift Self Image Program, active

participation in the Alcoholics Anonymous program and the Cornerstone program, and

enrollment in Bible study classes and LDS volunteer associations. At sentencing, the

district court stated it “ha[d] not seen this much” effort “ever[] before” on the part of a

criminal defendant. Id., Vol. VIII at 17-18.

       Although the evidence presented by Blake in support of the requested departure

seems relatively sparse, we are unable to conclude the district court abused its discretion

in characterizing Blake’s rehabilitation efforts as “extraordinary.” See Koon, 518 U.S. at

98 (“A district court’s decision to depart from the Guidelines . . . will in most cases be

due substantial deference, for it embodies the traditional exercise of discretion by a

sentencing court.”); U.S.S.G. § 3E1.1 cmt. n.5 (noting that, because “[t]he sentencing


                                             -22-
judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” “the

determination of the sentencing judge is entitled to great deference on review”). In

particular, there is at least some evidence in the record indicating that Blake participated

in a variety of post-offense rehabilitation programs and made a concerted effort to change

her attitude and circumstances. Further, the district court obviously drew comparisons

between Blake and other criminal defendants.

                                     Degree of departure

       The government asserts that the degree of the departure was unreasonable. We

“afford the trial court some discretion” in determining the appropriate degree of

departure, and do “not lightly overturn determinations of the appropriate degree of

departure.” Goldberg, 295 F.3d at 1138 (internal quotations omitted). “Nevertheless, we

have consistently required” a sentencing court to “specifically articulate reasons for the

degree of departure using any reasonable methodology hitched to the Sentencing

Guidelines, including extrapolation from or analogy to the Guidelines.” Id. (italics and

internal quotations omitted).

       Here, the district court offered little rationale for its degree of departure, stating:

              Some of the arguments of relatives and friends, of course, are – such
       as “Give her a second chance,” I mean if that’s a plea that she go on
       probation or something, that’s well beyond my discretion in this kind of a
       case where a jury convicted her and suggest that I have really more power
       than I do.
              But the presentence report has her at a 2 and a 42. I’m going [to]
       depart downward to a 36 for extraordinary post-offense rehabilitation. I
       have not seen this much, I don’t know, [ever] before, and that would give

                                              -23-
       her a guideline range of 210 to 262, but I have to tell you that – and for the
       reasons you’ve stated in your brief and orally – but it may be slightly
       beyond my discretion. If the government appeals, that may be overturned.
       You understand that risk, of course.

ROA, Vol. VIII at 17-18.

       We conclude the district court’s rationale was insufficient to satisfy our

“reasonable methodology” requirement. In particular, there is no indication that the

district court extrapolated from or drew analogies to any other portions of the Guidelines,

or offered any principled justification for its departure determination. Instead, it appears

the court picked a sentence it believed was less severe and reduced Blake’s offense level

by six levels to achieve that result. Accordingly, the district court abused its discretion in

determining the degree of departure. See Goldberg, 295 F.3d at 1140 (citing with

approval cases from other circuits rejecting similar departure decisions); see also id. at

1142 (noting “that a departure of eight levels is remarkable and must be reserved for truly

extraordinary cases”). In her answer brief on cross-appeal, Blake agrees “that a remand is

appropriate in order for the court to state its reasons explaining the degree of the

departure.” Br. at 5.

       With respect to cases No. 02-4013 and No. 02-4016, we AFFIRM the judgment of

the district court. With respect to case No. 02-4034, we REVERSE Blake’s sentence and

REMAND to the district court for resentencing.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge

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