                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3747
                                  ___________

United States of America,              *
                                       *
                   Appellee,           *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of Nebraska.
Todd J. DeBuse,                        *
                                       *
                   Appellant.          *
                                  ___________

                             Submitted: May 14, 2002

                                 Filed: May 20, 2002
                                  ___________

Before McMILLIAN, FAGG, and MELLOY, Circuit Judges.
                            ___________

FAGG, Circuit Judge.

       Todd J. DeBuse violated a domestic abuse protection order by contacting his
former wife. On August 9, 2000, officers received notice of a warrant to arrest
DeBuse for violating the order. Along with the warrant, the officers received a
facsimile stating DeBuse had a history of assault on a police officer and resisting
arrest, was a possible suspect in an armed robbery, and might have about “twelve
shotguns and two rifles and a semiautomatic rifle with magazine and bayonet,
possibly an AK-47,” in his house. Four officers went to DeBuse’s home to arrest
him. After DeBuse answered the door and identified himself, one of the officers
informed him of the arrest warrant and handcuffed him outside. DeBuse, who was
barefoot, asked to reenter his house to get his shoes, socks, keys, and wallet. As three
of the officers escorted DeBuse inside, they saw a rifle hanging on the wall in plain
view. In less than five minutes, the officers conducted a protective sweep of the first
level of the house and saw many other rifles in plain sight. After leaving the
premises, the officers checked with the Bureau of Alcohol, Tobacco, and Firearms
(ATF) and learned DeBuse is a felon who cannot legally possess guns. About four
hours after DeBuse’s arrest, the officers obtained a warrant to search DeBuse’s house
and returned to execute it. Although the officers knew DeBuse was not home, they
knocked and announced their presence before entering DeBuse’s unoccupied house
and seizing the weapons.

      The Government later charged DeBuse with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). After the district court* denied
DeBuse’s motion to suppress, DeBuse conditionally pleaded guilty. At sentencing,
DeBuse sought downward departures from the otherwise applicable guidelines range
under U.S.S.G. § 5K2.0 (permitting departure for mitigating circumstance of kind or
degree not adequately taken into consideration by guidelines) and § 5K2.11
(permitting departure for conduct that does not cause or threaten the harm or evil
sought to be prevented by the law proscribing the offense). Because DeBuse had
possessed the firearms for hunting and target practice, the district court departed
downward from the otherwise applicable guidelines range of 57-71 months and
sentenced DeBuse to thirty-seven months in prison. On appeal, DeBuse does not
challenge his arrest, but contests the searches of his home and his sentence.

      DeBuse argues the first search of his residence violated the Fourth
Amendment. Ordinarily, the arrest of a person outside of a residence does not justify
a warrantless search of the residence itself. See Chimel v. California, 395 U.S. 752,


      *
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.

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763 (1969). One of the exceptions to this rule, however, is when an officer
accompanies the arrestee into his residence to obtain clothing or identification.
Washington v. Chrisman, 455 U.S. 1, 7 (1982); United States v. Apker, 705 F.2d 293,
306 (8th Cir. 1983); see also United States v. Gwinn, 219 F.3d 326, 333 (4th Cir. 2000)
(without arrestee’s request, arrestee’s partially clothed status may constitute exigency
justifying officer’s temporary reentry into arrestee’s home to retrieve clothes). Even
absent an affirmative indication that the arrestee might have a weapon available or
might attempt to escape, the arresting officer has authority to maintain custody over
the arrestee and to “remain literally at [the arrestee’s] elbow at all times.” Chrisman,
455 U.S. at 6. Thus, contraband seen by an officer in plain view while accompanying
the arrestee in his home may be lawfully used against the arrestee. Id. at 7-9.

       Here, DeBuse chose to reenter his house simply for his own convenience.
Allowing reentry on the condition that the officers accompany him was reasonable.
Illinois v. McArthur, 531 U.S. 326, 335 (2001). Because the officers were legally
entitled to accompany DeBuse as he reentered his home, they were legally in the
position to see the rifle hanging on the wall as they entered. Given DeBuse’s
background as a felon, he could not legally possess that rifle, and that rifle’s presence
alone constituted probable cause for the second search, without considering the other
weapons found in the protective sweep. See United States v. Ford, 22 F.3d 374, 378-
79 (1st Cir. 1994). We thus need not evaluate the Government’s contention that the
protective sweep was lawful. See Maryland v. Buie, 494 U.S. 325, 334 (1990) (to
justify protective sweep, there must be articulable facts that would warrant a
reasonably prudent officer in believing the area to be swept harbors an individual
posing a danger to those on the arrest scene).

       DeBuse next argues the second search was illegal because the officers
deliberately misled the issuing judge by omitting facts that would have caused the
judge to deny the warrant application. Specifically, DeBuse contends if the judge had
known the officers knew of the information in the facsimile and had known the first

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search was illegal, the judge would not have found sufficient probable cause to issue
the search warrant. To be entitled to an evidentiary hearing to attack the veracity of
the warrant affidavit, the defendant must allege deliberate falsehood or reckless
disregard for the truth, and support the allegations with an offer of proof. Franks v.
Delaware, 438 U.S. 154, 171-72 (1978). The district court found DeBuse was not
entitled to a hearing because he merely made conclusory allegations and did not carry
his burden to show the affidavit contained material or deliberately false statements.
We conclude the district court did not abuse its discretion in denying DeBuse a
Franks hearing. The affidavit explained the circumstances under which the officers
had seen the weapons and, as we stated earlier, the officers were legally in a position
to see the first rifle, which alone supports issuance of the search warrant. As for the
information contained in the facsimile, we do not see how its inclusion would have
detracted from probable cause.

       DeBuse also argues the second search was illegal because the officers failed
to obtain a “no knock” warrant or give DeBuse notice of the warrant before entering
his house. DeBuse failed to show the officers failed to knock and announce their
presence before executing the search warrant, however, see United States v. Schenk,
983 F.2d 876, 879 (8th Cir. 1993), and the Fourth Amendment does not require notice
to an absent homeowner before execution of a search for which a warrant has issued,
United States v. Stefonek, 179 F.3d 1030, 1034 (7th Cir. 1999).

       Last, DeBuse argues the district court should have made more of a departure
under U.S.S.G. § 5K2.0 and mistakenly believed it could not depart downward under
§ 5K2.11. In DeBuse’s case, we lack authority to review the extent of the district
court’s departure from the applicable guidelines range, regardless of the district
court’s reasons for declining to depart further. United States v. McCarthy, 97 F.3d
1562, 1577 (8th Cir. 1996). DeBuse does not assert his sentence violated federal
constitutional or statutory law, or was based on an unconstitutional motive or bad



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faith, and the sentencing transcript makes clear the district court understood its
authority to depart further, but chose not to do so.

        At sentencing, DeBuse testified that when he was paroled in 1993 for
assaulting a police officer, his probation officer told him his civil rights were restored
under Nebraska law. DeBuse believed this meant he could possess rifles and did not
know his possession of them was illegal. According to DeBuse, the rifles were used
for deer hunting and target practice, and most of the rifles, including the
semiautomatic, belonged to hunting buddies. The owner of the semiautomatic
testified that rifle and another belonged to him, and he left them at DeBuse’s home
because the men shot targets and hunted on DeBuse’s land and DeBuse cleaned the
guns for him because he was physically handicapped. The district court found that
although a probation officer may have told DeBuse his civil rights were restored, the
probation officer probably did not tell DeBuse he could possess any gun he wanted,
and DeBuse probably knew he could not possess a handgun. After expressing
concern that DeBuse possessed “all these guns” while he was under a protection
order, the district court nevertheless stated he would grant the downward departure
“on the basis that this is outside the heartland . . . and to an extent the case with
respect to the use of these firearms. It seems to me that many of these firearms were
used for hunting and target practicing . . . .” The district court granted a four-level
departure to a sentencing range of 37-46 months, and declined to depart all the way
to a sentence of probation because of DeBuse’s possession of the semiautomatic
weapon.

     We thus affirm the denial of DeBuse’s motion to suppress, and affirm
DeBuse’s sentence.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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