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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                       ____________________ <br> <br>Nos. 96-2091 <br>    97-1720 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                         MICHAEL HAWKINS, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. William G. Young, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                Boudin and Lynch, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Bernard Grossberg, by appointment of the Court, for appellant. <br>    Christopher F. Bator, Assistant United States Attorney, with <br>whom Donald K. Stern, United States Attorney, was on brief for <br>appellee. <br> <br> <br> <br>                       ____________________ <br> <br>                         March 18, 1998 <br>                      ____________________

          TORRUELLA, Chief Judge.  On January 12, 1995, the Melrose, <br>Massachusetts Police Department received a telephone call <br>regarding the fraudulent purchase of video tapes from a store in <br>Clearwater, Florida. An extensive investigation ensued, producing <br>sufficient evidence to allow the authorities to seek and obtain a <br>search warrant of Appellant's business and residence.  The <br>warrant included a "no-knock" provision for the search of <br>Appellant's apartment. <br>          This provision was requested after police discovered that <br>Appellant had an extensive criminal record involving acts of <br>violence.  These included convictions for armed robbery, armed <br>robbery while masked, assault with a dangerous weapon, threats, <br>assault and battery, possession of a dangerous weapon, using a <br>firearm with intent to commit a crime, assault with a dangerous <br>weapon, and a firearms violation (possession of a shotgun).  <br>Furthermore, the investigating police officer also had recently <br>learned that Appellant had threatened a neighbor with a gun.  <br>Thus, believing that Appellant was armed and dangerous, and that <br>the investigation by the police may have alerted him to the <br>situation that was developing, the state sought, and a state <br>judge granted, a "no-knock" warrant for the apartment in <br>question.  <br>          On January 20, 1995 the police executed the warrant on <br>Appellant's apartment seeking to obtain evidence of the <br>fraudulent purchase of the videotapes.  The door was broken down <br>with a sledge hammer, the officers entered with drawn weapons, <br>and Appellant was ordered to the ground with a gun held to his <br>head.  The search produced several items, including several of <br>the tapes sought, but more relevant to this appeal, the executing <br>officers found one box of Winchester .22 caliber hollow-point <br>cartridges, as well as a .22 caliber rifle cleaning kit.  Small <br>amounts of illegal controlled substances, and stolen computer <br>equipment were also discovered. <br>          One of the officers also discovered a ring of keys on the kitchen <br>countertop.  A resident of the apartment building indicated that <br>there were storage compartments assigned to each apartment in the <br>common basement of the building, whereupon the search party <br>proceeded to that area.  There they found twelve open storage <br>areas, enclosed within a framing covered with chicken wire, the <br>interiors of which were visible from outside the enclosures.  All <br>but two of the enclosures were marked with numbers corresponding <br>to apartment numbers located in the building. <br>          Apartment 5, Appellant's premises, was one of the two numbers <br>that was not marked on any locker.  Upon testing by a police <br>officer of several of the keys recovered from Appellant's <br>apartment on the locks of the two unnumbered storage spaces, he <br>was able to unlock one of the locks.  The officers did not <br>proceed further and again locked the premise in question.  They <br>were able to observe through the chicken wire, however, several <br>boxes located inside. <br>           With this information, the police sought and received an <br>additional warrant to search the storage area that was assigned <br>to Appellant's apartment.  Upon execution of this warrant, the <br>police discovered the firearms enumerated in Count One of the <br>indictment, namely, a Colt .45 caliber semi-automatic pistol, a <br>Colt .357 caliber magnum revolver, a Charter Arms .22 caliber <br>rifle, and an Astra .22 caliber semi-automatic pistol with an <br>obliterated serial number. <br>          The fruits of this investigation were turned over to the federal <br>authorities, whereupon Appellant was charged in a two count <br>indictment alleging violations of 18 U.S.C.  922(g)(1), because <br>he was a convicted felon in possession of firearms and of <br>ammunition. Appellant sought to suppress the evidence obtained <br>from his apartment, including the keys, as well as the items <br>seized from his storage compartment in the basement of the <br>apartment house. The motion was denied by the district court and <br>thereafter Appellant entered a conditional guilty plea. After <br>being sentenced by the district court to a term of 180 months' <br>incarceration and five years' supervised release, Appellant <br>sought to withdraw his plea. This request was denied by the <br>district court and this appeal followed. <br>          Three errors are claimed on appeal: (1) the failure to grant the <br>suppression of the evidence seized at Appellant's apartment and <br>locker, (2) the denial of the motion to withdraw the conditional <br>guilty plea, and (3) the inclusion of state charges for <br>conspiracy to commit a violent felony and possession of a firearm <br>during the commission of a felony as convictions under 18 U.S.C. <br> 924(e) and Section 4B1.4 of the Sentencing Guidelines.  Finding <br>that the district court committed no error in its rulings, we <br>affirm Appellant's conviction. <br>I.  The Motion to Suppress <br>          Appellant challenges the district court's finding that the "no- <br>knock" provisions of the search warrant to his apartment were <br>lawful, and questions the court's validation of the police entry <br>into the basement area and the discovery of the evidence located <br>there. <br>            A.  "No-Knock" Warrants <br>           Although there is a presumption in favor of announcement, i.e., <br>knocking or some similar gesture, this postulate "yield[s] under <br>circumstances presenting a threat of physical violence."  Wilsonv. Arkansas, 514 U.S. 927, 936 (1995). The burden that must be <br>met by the police to validate a "no-knock" entry "is not high."  <br>Richards v. Wisconsin, ___ U.S. ___, ___, 117 S. Ct. 1416, 1422 <br>(1997).  "Under Richards, a no-knock entry is justified if police <br>have a 'reasonable suspicion' that knocking and announcing would <br>be dangerous . . . to the purposes of the investigation."  United <br>States v. Ramrez, ___ U.S. ___, ___, 1998 WL 88055, at *3 (U.S. <br>March 4, 1998).  In this case, Appellant's copious record of <br>violent convictions, coupled with the attesting police officer's <br>personal knowledge of a recent armed action by him, and the <br>officer's suspicion that Hawkins was aware of the police interest <br>in him more than sufficiently justified a "reasonable suspicion" <br>that knocking and announcing their presence would be dangerous to <br>the officers executing the search warrant. <br>          Furthermore, this was not a spur of the moment decision by the <br>executing officers.  The matter was submitted to the judgment of <br>a judicial officer who passed upon facts submitted, the existence <br>of which has not been questioned. Under these circumstances the <br>executing officers were clearly entitled to rely on the validity <br>of the warrant.  See United States v. Leon, 468 U.S. 897 (1984). <br>          Thus the evidence discovered in the apartment, including the <br>ammunition and the basement locker keys, was legally obtained and <br>could have been used by the government against Appellant at <br>trial, had one taken place. <br>               B.  The Basement <br>          It is now beyond cavil in this circuit that a tenant lacks a <br>reasonable expectation of privacy in the common areas of an <br>apartment building.  See United States v. Cruz Pagn, 537 F.2d <br>554, 557-58 (1st Cir. 1976). The unenclosed areas of the basement <br>of this apartment building were such common areas.  See id.  <br>Appellant thus had no reasonable expectation of privacy in the <br>basement common area.  See United States v. Thornley, 707 F.2d <br>622, 625 (1st Cir. 1983). <br>          Once legally inside this area, the police had a right to perceive <br>whatever was available to them through the use of their senses, <br>including their common sense. Cf. Carroll v. United States, 267 <br>U.S. 132, 162 (1925) (probable cause is a flexible "common sense" <br>standard).  This exercise revealed, (1) that all the lockers were <br>numbered, except two; (2) that one of the two numbers missing <br>corresponded to Appellant's apartment number; (3) that the keys <br>legally obtained in Appellant's apartment fitted one of the <br>unnumbered lockers, and thus that area was most likely  subject <br>to his control; and (4) that the boxes that could be observed <br>through the chicken wire most likely belonged to Appellant and <br>could contain additional evidence relevant to the subject of the <br>criminal investigation. <br>          Proceeding with this information to seek a search warrant to <br>inquire into the contents of the boxes was exactly what was <br>appropriate under the circumstances of this case. The evidence <br>uncovered as a result of this procedure was thus legally <br>admissible against Appellant. <br>II.  Appellant's Attempted Withdrawal of Conditional Plea <br>          Four criteria have been established as determinative in <br>considering motions to withdraw guilty pleas: (1) the <br>plausibility of the reasons prompting the requested change of <br>plea; (2) the existence or not of an assertion of innocence; (3) <br>the timing of the motion; and (4) whether, when viewed in the <br>light of emergent circumstances, the plea was knowing, voluntary, <br>and intelligent, within what is mandated by Rule 11 of the <br>Federal Rules of Criminal Procedure. United States v. Muriel, 111 <br>F.3d 975, 977 (1st Cir. 1997). <br>          Appellant does not claim any defect in the Rule 11 proceeding.  <br>The colloquy shows that there was none.  Appellant was thoroughly <br>questioned by the trial judge without any coercion being apparent <br>from the record or being claimed thereafter.  It further shows <br>that he clearly understood the charges against him, that he <br>voluntarily and intelligently admitted his guilt and the facts <br>sufficient to support these charges, and that he understood the <br>consequences of these actions. <br>           Against this scenario, we have Appellant's claim, made 16 months <br>after he entered his plea and 9 months after he was sentenced, <br>that he was unaware of the firearms contained in one of the boxes <br>found in the basement, which according to this latest version, <br>were brought into his house by his former wife in 1993, and then <br>stored in the basement.  To this, Appellant adds the insinuation <br>that the firearms were "planted" in these boxes by his former <br>wife's police officer boyfriend.    <br>          Fortunately, although perhaps less so for Appellant, we need not <br>enter this potential morass.  Appellant seems to overlook that he <br>was charged and convicted under Count Two of the indictment for <br>being a felon in possession of ammunition, in itself a violation <br>of  922(g), independent of the charges contained in Count One.  <br>None of his contentions affect his conviction on the second <br>count, because that count stemmed from the evidence seized in <br>Appellant's apartment, and was not based upon evidence taken from <br>his storage locker.  Appellant's conviction on Count Two alone <br>would have been sufficient to support the sentence he received.  <br>For this reason, all of the arguments raised as to Count One are, <br>in fact, irrelevant.                <br>          The district court did not exceed its discretion in denying <br>Appellant's request to withdraw his conditional guilty plea. <br>III.  The Sentencing Non-Issues <br>          Appellant's main contention regarding his sentencing is his claim <br>of improper inclusion of two state convictions as predicate <br>offenses to establish that he qualified as a career armed <br>criminal subject to mandatory sentencing under the Armed Career <br>Criminal Act ("ACCA"). 18 U.S.C.  924 et seq. <br>          It is settled law in this circuit that authority interpreting the <br>Sentencing Guidelines' definition of "crime of violence", <br>U.S.S.G.  4B1.2(1), is persuasive in interpreting the ACCA's <br>definition of what constitutes a violent felony pursuant to  <br>924(e)(2)(B) of that statute, and vice versa.  See United Statesv. Meader, 118 F.3d 876, 882-83 (1st Cir. 1997); United States v. <br>Fiore, 983 F.2d 1, 3 (1st Cir. 1992).  We have also unequivocally <br>held that conspiracy to commit a crime of violence, as defined in <br>the career offender guidelines, is itself a crime of violence for <br>purposes of its treatment under the Guidelines.  Fiore, 983 F.2d <br>at 3.  Considering that armed robbery is defined as a "crime of <br>violence" under ACCA, 18 U.S.C.  924(e)(2)(B), it is clear that <br>the district court committed no error in concluding that <br>Appellant's conviction for conspiracy to commit armed robbery was <br>a qualifying predicate to his being sentenced under the mandatory <br>minimum sentencing requirements of that statute. 18 U.S.C.  924 <br>(e)(1). <br>          Because this conviction, in conjunction with Appellant's other <br>convictions for predicate offenses, is sufficient to qualify him <br>as a career armed criminal under  924(e), "we need go no <br>further." <br>          The district court committed no reversible error and Appellant's <br>conviction is therefore affirmed. <br></pre>

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