                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1423
                        ___________________________

                             United States of America,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

                                   Arthur Waters,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 16, 2017
                             Filed: February 28, 2018
                                   [Published]
                                  ____________

Before COLLOTON and GRUENDER, Circuit Judges, and READE,1 District Judge.
                         ____________

PER CURIAM.

      Arthur Waters entered a conditional plea of guilty to one count of unlawful
possession of a firearm as a previously convicted felon, in violation of 18 U.S.C.

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, sitting by designation.
§§ 922(g)(1) and 924(a)(2). The district court2 sentenced Waters to 87 months’
imprisonment, followed by three years of supervised release. On appeal, Waters
challenges the district court’s order denying his motion to suppress evidence seized
during a search of his residence while executing an arrest warrant. Waters also
challenges his subsequent sentence as substantively unreasonable. We affirm.

                                          I.

       On September 3, 2015, officers from the Kansas City, Missouri Police
Department obtained information that Waters was residing with his fiancée, Dannaica
James, and two children at 2202 Monroe, Kansas City, Missouri. Waters had
outstanding warrants for his arrest. Officers surveilled the residence. That same day,
officers stopped the vehicle of an individual known to associate with Waters. The
individual identified a photo of Waters and stated that Waters was his source for
illegal drugs. The individual made a controlled call to Waters, during which Waters
stated that he was at the residence, he would be there for awhile and had what the
individual was requesting.

       Several hours after the controlled call, officers observed James leaving the
residence. James left the residence, walked a short distance, stopped and went back
to the residence. James knocked on the door and someone inside opened the door.
James then entered the residence and left again approximately thirty seconds later.
After James entered her vehicle, which was located twenty to thirty yards from the
residence, officers detained her at that location. She informed officers that Waters
was inside the residence and that no one else was present.


      2
       The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri, adopting the report and recommendation of the
Honorable Robert E. Larsen, United States Magistrate Judge for the Western District
of Missouri, with respect to the motion to suppress.

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      Officers subsequently surrounded the residence, prepared to forcibly enter if
necessary. James called Waters to inform him that officers were outside waiting for
him and asked him to come to the door. Waters told James to “hold on.” As officers
approached, they observed window blinds move on the second floor of the south side
of the residence. Approximately thirty seconds later, officers observed window
blinds move on the first floor near the west side of the residence. Specifically, it
appeared that someone had pulled down a blind to look outside.

       Detective Michael Miller knocked, announced the officers’ presence and
instructed Waters to come outside. Officers announced their presence several times.
They did not receive a response. Ultimately, a sergeant authorized entry into the
residence. Officers forcibly breached the back door, which opened into a utility
room. Officers moved through the utility room into the kitchen and heard Waters
state that he was “coming down,” presumably from the second floor. The stairway
was not visible from the kitchen. Officers encountered Waters in the living room,
which was adjacent to the kitchen, and directed him into the kitchen. Officers took
Waters into custody. He was handcuffed, searched for weapons and eventually
removed from the residence.

       Officers conducted a protective sweep of the first floor to check for individuals
who might pose a threat to their safety. Officers observed marijuana and related
paraphernalia in plain view in the living room. Officers observed a large couch
situated against a wall in the living room. The couch was flanked by two end tables
approximately a foot away. The bottom of the couch was about half the width of a
dollar bill off the floor.

        In the living room, Deputy United States Marshal Jason Roberts bumped the
couch with his hip to determine the weight of the couch. The force slid the couch on
the tile floor. Deputy Roberts then pushed one side of the couch away from the wall
to see if anyone was hiding behind or inside it. He observed part of a firearm on the

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floor underneath the couch. The firearm was lying just over one tile square away
from the wall.

       A grand jury charged Waters with one count of possession of a firearm as a
previously convicted felon. Waters moved to suppress all evidence obtained as a
result of the protective sweep of the residence. The district court ruled that the sweep
was lawful pursuant to Maryland v. Buie, 494 U.S. 325 (1990). Waters entered a
conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2),
reserving the right to appeal the denial of his motion to suppress.

      At sentencing, Waters’s total adjusted offense level was 17 and he had a
criminal history category of IV, resulting in a Guidelines range of 37 to 46 months’
imprisonment. After considering the factors at 18 U.S.C. § 3553(a), the district court
varied upward to a sentence of 87 months’ imprisonment.

      Waters raises two issues on appeal. First, he challenges the district court’s
denial of his motion to suppress evidence and argues that the scope of the protective
sweep was unconstitutional. Second, he contends that his sentence was substantively
unreasonable.

                                           II.

      When reviewing a district court’s denial of a motion to suppress evidence, we
review the district court’s factual findings for clear error and its legal conclusions de
novo. See United States v. Wright, 844 F.3d 759, 762 (8th Cir. 2016).

      Under the Fourth Amendment, the search of a residence is generally
unreasonable “without a warrant issued on probable cause.” Buie, 494 U.S. at 331.
An exception to the general warrant requirement of the Fourth Amendment is the
protective sweep. “A ‘protective sweep’ is a quick and limited search of premises,

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incident to an arrest and conducted to protect the safety of police officers or others.
It is narrowly confined to a cursory visual inspection of those places in which a
person might be hiding.” Id. at 327. A protective sweep must be supported by “a
reasonable belief based on specific and articulable facts that the area to be swept
harbors an individual posing a danger to those on the arrest scene.” Id. at 337.

       We have recognized the importance of officers’ safety when conducting a home
arrest. See United States v. Alatorre, 863 F.3d 810, 814 (8th Cir. 2017). “Protective
sweeps in these circumstances are justified because officers are vulnerable during an
arrest at a home, even when the arrestee and other occupants have been secured . . . .”
Id.; see also United States v. Davis, 471 F.3d 938, 944 (8th Cir. 2006) (“A protective
sweep is justified by the threat of accomplices launching a surprise attack during an
arrest and is particularly important during an in-home arrest, due to the heightened
potential for an ambush in unfamiliar surroundings.”).

       The district court properly found that the protective sweep was permissible
under the Fourth Amendment. Waters contends that the protective sweep was
unconstitutional because he was immediately arrested and removed from the premises
before officers conducted the sweep. Although the exact timing is unclear, the record
establishes that officers began the protective sweep either contemporaneously with,
or immediately following, Waters’s arrest. The sweep is not invalid merely because
Waters may have been removed from the immediate area during, or preceding, the
sweep. Indeed, we have found protective sweeps to be permissible where the
defendant was apprehended and removed from the immediate area of arrest before the
sweep occurred. See United States v. Boyd, 180 F.3d 967, 975-76 (8th Cir. 1999); see
also Alatorre, 863 F.3d at 814-15.

       Waters also challenges the district court’s conclusion that officers could have
reasonably believed that the residence contained another person who posed a threat
to their safety. The district court supported its finding with specific and articulable

                                         -5-
facts from which a reasonable officer could have concluded that another person was
in the residence. In particular, officers observed window blinds move in both an
upstairs and downstairs window within a short period. Because Waters was
descending the stairs when officers entered the residence, it was reasonable for
officers to conclude that Waters was not the person who moved the downstairs blind.
Additionally, James called Waters as the officers approached the residence and
informed him that officers were waiting outside for him. The officers also announced
their presence multiple times before breaching the door. These circumstances
provided anyone in the residence ample time to hide before officers entered the
residence. Accordingly, it was reasonable for officers to believe that the residence
could contain another person.

       Further, we have recognized the association between drug offenses and
violence in upholding protective sweeps of residences of known drug traffickers. See
United States v. Cash, 378 F.3d 745, 748-49 (8th Cir. 2004). Here, officers were
aware that Waters had distributed illegal drugs in the past and, based on the
controlled call, could ostensibly supply the informant with drugs that day. The
presence of drugs was also immediately ascertainable to officers upon entering the
living room, where marijuana and drug paraphernalia were found in plain view. That
officers did not have exact details on the extent of Waters’s distribution of illegal
drugs does not render the district court’s finding erroneous. It was reasonable for
officers to believe that any other person in the residence was dangerous.

       We further find no error in the district court’s ruling that the couch could have
harbored a dangerous individual. Waters contends that no officer could have
reasonably believed that the couch concealed an individual. However, Deputy
Roberts testified that he had been involved in hundreds of arrests and received formal
training on performing protective sweeps. He noted that he had learned to check any
place that a person could hide, including closets, behind doors and inside and behind
furniture. Similarly, Detective Miller testified that he had been involved in hundreds

                                          -6-
of arrests and was familiar with protective sweeps. He testified that police had found
individuals in refrigerators, stairwells, under beds, between mattresses and, in one
instance, inside a couch where a fold-up mattress should be. Deputy Roberts testified
that, when he performed his “hip check” of the couch, it moved easily on the tile
floor, suggesting that someone could have moved the couch to hide. The district
court found that the couch was large enough that an individual could hide behind or
inside it. Based on these facts, it was not clearly erroneous for the district court to
conclude that the couch could conceal a person. Our sister circuits have similarly
recognized the reasonableness of an officer’s belief that a couch could conceal an
individual. See, e.g., United States v. Paopao, 469 F.3d 760, 767 (9th Cir. 2006). We
conclude that there was no error in the district court’s determination that the
protective sweep was constitutional under Buie.

       Because we affirm on the above-articulated grounds, we do not address the
government’s alternative argument that a search behind the couch was justified as an
area immediately adjoining the place of arrest and from which an attack could be
immediately launched. See Buie, 494 U.S. at 334 (“[A]s an incident to the arrest the
officers could, as a precautionary matter and without probable cause or reasonable
suspicion, look in closets or other spaces immediately adjoining the place of arrest
from which an attack could be immediately launched.”). The district court properly
denied the motion to suppress evidence.

                                         III.

       We engage in a two-part review of a district court’s sentence: first, we review
for significant procedural error; and second, absent significant procedural error, we
review for substantive reasonableness. See United States v. Hairy Chin, 850 F.3d
398, 402 (8th Cir. 2017). Waters does not contend that the district court committed
procedural error. His sole contention on appeal is that his sentence was substantively
unreasonable.

                                         -7-
       We review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard. See United States v. Chavarria-Ortiz, 828 F.3d 668,
672 (8th Cir. 2016). District courts enjoy wide latitude when applying the sentencing
factors in 18 U.S.C. § 3553(a) and are free to “assign some factors greater weight than
others.” Id. It will be an “unusual case” that we find a sentence substantively
unreasonable, regardless of whether the sentence is within, above or below the
Guidelines range. United States v. Kelley, 652 F.3d 915, 918 (8th Cir. 2011). If a
district court varies beyond the Guidelines range, we consider the extent of the
variance but “give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Ferguson v. United States,
623 F.3d 627, 631 (8th Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)).

       Waters contends that the district court gave undue weight to his criminal
history. He further argues that the district court relied on considerations that are
already accounted for in the Guidelines. Finally, he contends that his conviction for
robbery in 1999, which received no criminal history points, was properly accounted
for because his conviction for robbery in 2000 scored additional points since the 1999
robbery was unscored. He notes that, even if the 1999 robbery had received full
criminal history points, the sentence imposed was still substantially higher than the
resulting Guidelines range would have been.

        None of these arguments alone or collectively persuade us that the district court
abused its considerable discretion. The district court stated that it considered all of
the factors at 18 U.S.C. § 3553(a) in reaching its decision to vary upward from the
Guidelines. The district court discussed several of the factors in detail and concluded
that a sentence within the Guidelines range would not result in adequate punishment,
would not be an adequate deterrent and would not protect the public. The district
court cited Waters’s lengthy history of serious and violent criminal behavior,
including multiple convictions for robberies and assaults. That Waters’s criminal

                                          -8-
history is a factor already considered in the computation of the Guidelines range does
not render the district court’s consideration of it under § 3553(a) erroneous. See
United States v. Bacon, 848 F.3d 1150, 1152-53 (8th Cir. 2017) (per curiam); see also
United States v. Barrett, 552 F.3d 724, 726 (8th Cir. 2009) (recognizing the district
court’s authority to vary upward for underrepresented criminal history under
§ 3553(a)). The district court’s careful consideration of the § 3553(a) factors
supported the sentence imposed and provided ample justification for the same. See
United States v. Feemster, 572 F.3d 455, 462 (8th Cir. 2009) (en banc) (“We may not
require ‘‘‘extraordinary” circumstances to justify a sentence outside the Guidelines’
. . . .” (quoting Gall, 552 U.S. at 47)). We conclude that there was no abuse of
discretion.

                                         IV.

      The judgment of the district court is affirmed.

                       ______________________________




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