               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0036n.06


                                       Case No. 16-5171

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

                                                                                   FILED
                                                                             Jan 17, 2017
UNITED STATES OF AMERICA,                            )
                                                                         DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )        ON APPEAL FROM THE
v.                                                   )        UNITED STATES DISTRICT
                                                     )        COURT FOR THE WESTERN
JARVIS LEWIS,                                        )        DISTRICT OF TENNESSEE
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )                             OPINION


BEFORE:       COLE, Chief Judge; BOGGS and SILER, Circuit Judges.

       COLE, Chief Judge. Police officers arrested Jarvis Lewis under an arrest warrant after

they entered his girlfriend’s apartment without a search warrant. During the arrest, officers

discovered ammunition and a firearm in the apartment. A jury subsequently found Lewis guilty

of being a felon in possession of a firearm and a federal district court sentenced him to

120 months of imprisonment. Lewis appeals on several grounds, arguing that the district court

erred by applying the wrong standard for a warrantless entry and by finding that the firearm was

discovered during a valid protective sweep. Lewis further argues that the district court erred in

admitting into evidence statements by witnesses who did not appear at trial and an audio

recording and matching transcript from a call between Lewis and another individual. Lewis also
Case No. 16-5171, United States v. Lewis


argues that there was insufficient evidence to show constructive possession of the firearm and

that the district court violated his rights by refusing to grant him credit for acceptance of

responsibility in his sentencing. Finding no reversible error, we affirm the district court’s

conviction and sentence.

                                      I. BACKGROUND

       In 2014, Lewis had outstanding arrest warrants. In mid-October of that year, officers

with the Memphis Police Department received a call reporting that Lewis was at an apartment in

the Ridgecrest Apartments complex. The officers visited the apartment, where Kenya Baskin,

Lewis’s girlfriend and the leaseholder of the apartment, answered the door. Baskin told the

officers that she was Lewis’s girlfriend and that Lewis was not in the apartment. After receiving

Baskin’s consent to look around the apartment, officers entered a bedroom and saw Lewis

exiting through a window. The officers chased Lewis on foot, but were unable to apprehend

him.

       On October 27, 2014, the police received a call reporting shots fired at the same

apartment complex.     The caller did not identify any particular persons as involved in the

shooting. However, by their admission at trial, officers involved with the search for Lewis

recognized the address reported in the call and responded with the aim of apprehending him.

After arriving at the address, the officers surrounded the apartment building and questioned

witnesses standing outside. The witnesses reported seeing two males with guns fleeing from the

scene of the shooting into Baskin’s apartment.       After officers showed witnesses a police

photograph of Lewis from a county warrant website, a witness confirmed that Lewis was one of

the two individuals that he or she had seen running into the apartment.




                                               -2-
Case No. 16-5171, United States v. Lewis


       Without obtaining any names or identification from the witnesses, the officers

approached the apartment. After knocking on the apartment door for some time without a

response, the officers requested a fugitive-arrest team to assist with the entry and arrest. While

waiting for the arrest team to arrive, officers witnessed someone looking out of the window of

the apartment but were unable to identify the person. Once the arrest team arrived, the officers

entered the apartment and quickly arrested Lewis and his friend, Reginald Perkins, in a rear

bedroom.

       At approximately the same time that officers discovered Lewis and Perkins in the

bedroom, an officer searching the kitchen for hidden individuals found a firearm sticking out of

the top of a sugar bag stored in a double-doored cabinet under the sink. Once the arrests were

complete, the arresting officers rejoined other officers in the apartment still searching for others

who may have been hiding.         During the secondary search, officers found two types of

ammunition on the floor of the bedroom closet. One was of the type used for the firearm

discovered in the kitchen.

       Before trial, Lewis moved to suppress evidence resulting from the warrantless entry. To

show standing for his motion, Lewis argued that he had a reasonable expectation of privacy as he

was a regular overnight guest with a key to the apartment, the assistant manager of the apartment

complex and a neighbor believed Lewis was living in the apartment, and several photographs of

Lewis and Baskin were in the apartment. Based on this alleged standing, Lewis argued that the

officers were prohibited from entering the residence because they lacked the exigent

circumstances necessary to do so. In addition, he asserted that the search of the kitchen was

impermissible because it was not an area immediately adjacent to the arrest and there was no

reason to believe individuals posing a threat to officers were elsewhere in the apartment.



                                               -3-
Case No. 16-5171, United States v. Lewis


       At the suppression hearing, Lewis retreated from his earlier arguments regarding

standing, maintaining that he was only a regular visitor, as opposed to a resident, and therefore

the officers did not have a reasonable belief that he was in the apartment. When the prosecution

questioned one of the officers regarding their conversations with unidentified neighbors, Lewis

objected on the ground that the neighbor statements were hearsay.          After considering the

testimony of other witnesses and oral argument, the district court found that both the entry into

the apartment and the search of the kitchen were valid.

       At trial, Lewis challenged whether there was sufficient evidence that he possessed the

firearm discovered by police. He argued that the officers had failed to identify any fingerprints,

DNA, or other evidence that showed the firearm belonged to or was ever possessed by him.

Perkins and Baskin testified that neither of them owned the firearm or knew of its existence, and

admitted upon questioning that there were several individuals who would visit the apartment on a

regular basis. Baskin testified that Lewis’s address was another residence, but stated that Lewis

was the only other person with access to the closet where the ammunition was discovered and

that others would not have been able to place the firearm in the kitchen without Lewis letting

them into the apartment.

       The prosecution then sought to play a recorded jail call between Lewis and Perkins

during which Perkins discussed how police failed to find a gun after he hid it and Lewis

responded that he should have done the same. Initially, Lewis objected to the admission of the

audio, arguing that the recording was incomprehensible. The district judge stated that he could

not understand the recording, despite hearing it several times. The prosecution offered to

provide a transcript of the recording and the district court approved, noting that it would be

useful in determining whether the recording was admissible. After some debate regarding the



                                              -4-
Case No. 16-5171, United States v. Lewis


basis for admitting the audio, Lewis withdrew his objection, arguing that the recording showed

the firearm could have belonged to Perkins. The prosecution then presented the transcript with

the audio to one of the officers during questioning. Lewis consented to admitting the transcript

after the district court noted that the transcript would be admitted only for assistance in

identifying the speakers in the recording.

       The jury found Lewis guilty of being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). After the trial, Lewis’s presentence report (“PSR”) calculated his base

offense level as 24, under U.S.S.G. § 2K2.1. The PSR then added two offense levels, under

U.S.S.G. § 2K2.1(b)(4)(A), because the firearm was stolen. The PSR also noted that Lewis had

made no effort to show acceptance of responsibility for the charged offense, and therefore denied

a two-point reduction in his offense level, under U.S.S.G. § 3E1.1(a). As a result, the Guidelines

range was a term of 120–150 months of imprisonment, based on Lewis’s offense level of 26 and

a criminal history category of VI.

       Lewis objected, arguing that the PSR improperly denied him credit for acceptance of

responsibility under U.S.S.G. § 3E1.1(a). After hearing oral argument during the sentencing

hearing, the district court overruled Lewis’s objection. The district court then adopted the PSR

recommendations and sentenced Lewis to the statutory maximum of 120 months of

imprisonment.

                                         II. ANALYSIS

       A. Standard of Review

       In reviewing the denial of a motion to suppress, we review the district court’s findings of

fact for clear error and its conclusions of law de novo. United States v. Hurst, 228 F.3d 751, 756

(6th Cir. 2000). We view the evidence in the light most likely to support the district court’s



                                              -5-
Case No. 16-5171, United States v. Lewis


decision, and may consider evidence beyond that reviewed during the motion to suppress

hearing. Id.; United States v. McKinney, 379 F.2d 259, 264 (6th Cir. 1967), overruled on other

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

       B. The Validity of the Warrantless Entry

           1. The Witness Statements Were Not Hearsay

       Before we turn to whether the entry into the apartment was permissible, we must address

Lewis’s argument that the statements by unidentified neighbors about Lewis entering the

apartment were hearsay. We review the determination of whether a statement is hearsay de

novo. Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378 (6th Cir. 2009).

       Because the witness statements were not offered as evidence that Lewis was in fact in the

apartment, but rather as support for the officers’ belief that he was there, the statements fall

outside the definition of hearsay. See Fed. R. Evid. 801(c).

           2. The Officers’ Entry Was Valid

       In determining whether entry into a third party’s residence without a search warrant is

proper to arrest the subject of an arrest warrant, we must consider the framework set forth for

warrantless entries in Payton v. New York, 445 U.S. 573 (1980). Payton established a two-part

test requiring that officers have a reasonable belief that the subject of the warrant lives at the

place of entry and a reason to believe that the subject of the warrant is inside. El Bey v. Roop,

530 F.3d 407, 416 (6th Cir. 2008). Accordingly, officers must take steps “to reasonably ensure”

that the residence is that of the wanted person and must determine through independent

investigation whether the person is inside the premises before entering. See id. at 417.

       Lewis has not argued that it was unreasonable for officers to believe that he lived at

Baskin’s apartment. He argues only that the officers lacked a reason to believe that he was

present in the apartment at the time of entry. Therefore, the only question is what standard

                                               -6-
Case No. 16-5171, United States v. Lewis


applies in assessing whether the officers had sufficient reason to believe that Lewis was in the

apartment. On this question, we have remained undecided, stating that it is “an open question”

whether reasonable belief or probable cause is required. See United States v. Block, 378 F.

App’x 547, 549–50 (6th Cir. 2010) (quoting United States v. Hardin, 539 F.3d 404, 426 (6th Cir.

2008)) (concluding that it was unnecessary to decide which standard applies because there was

sufficient evidence to meet either standard).

       Like previous courts faced with this question, it is unnecessary for us to determine which

standard applies as both standards are met by the facts of this case. In United States v. Pruitt,

police received an anonymous call, which they believed to be from the suspect’s ex-girlfriend,

informing them that the suspect was recently seen at a home where he resided. 458 F.3d 477,

478 (6th Cir. 2006). Officers conducted surveillance and witnessed an individual enter and exit

the home before stopping that person for questioning a few blocks away. Id. at 479. Upon

seeing a photograph presented by police, the individual referred to the suspect by his street name

and said that he had just seen the suspect inside the residence. Id. at 479. We found that the

facts supported a reasonable belief that the suspect was inside at the time of entry. Id. at 483. In

Hardin, we noted that the facts in Pruitt were also sufficient to meet the higher standard,

probable cause. Hardin, 539 F.3d at 413–14.

       The facts in this case also give rise to probable cause. Indeed, this court emphasized in

Hardin that “[a] common feature of [cases finding sufficient reason to believe] is recent,

eyewitness evidence connecting the suspect to the residence, and often even conduct by the

suspect that demonstrates a tie to the residence.” Id. at 421. Officers previously received a tip

that Lewis was at the apartment, knew that it was his girlfriend’s apartment, and saw Lewis

fleeing from the apartment only a week prior to his eventual arrest. Although the officers did not



                                                -7-
Case No. 16-5171, United States v. Lewis


identify the person they saw looking out of the window as Lewis, there was a witness, as in

Pruitt, who identified the suspect from a photograph and told police that he or she had witnessed

the suspect enter the apartment shortly after the reported shooting. Given these facts, the record

evidence was sufficient for a finding that the officers had both a reasonable belief and probable

cause in believing that Lewis was inside of the apartment when the officers entered.

       Whether the officers had sufficient reason to believe Lewis was in the apartment when

they responded to the reported shooting is irrelevant. The officers were required only to have

sufficient reason to believe he was present at the time of entry. See El Bey, 530 F.3d at 416.

       C. The Validity of the Protective Sweep

       Police officers may conduct a search of areas “immediately adjoining the place of arrest

from which an attack could be immediately launched” without probable cause or reasonable

suspicion of such an attack. Maryland v. Buie, 494 U.S. 325, 334 (1990). Further, officers may

extend the protective sweep beyond the immediately adjoining area where there exist “articulable

facts” that, when considered with the rational inferences resulting from them, would lead a

reasonably prudent officer to believe that area harbors a dangerous person. Id. Such an extended

protective sweep is limited to those areas where a person may be found, and the search must last

no longer than necessary to remove the sense of danger or to complete the arrest and depart the

premises, whichever is shorter. Id. at 335–36.

       Contrary to Lewis’s contention that the trial testimony lacked any facts suggesting that a

danger existed for officers outside of the room where Lewis and Perkins were arrested, the

prosecution notes several facts in support of the officers conducting an extended protective

sweep, including that (1) officers believed two individuals in the apartment were involved in a

recent shooting incident outside of the apartment involving other individuals; (2) officers were



                                                 -8-
Case No. 16-5171, United States v. Lewis


unaware if other individuals were in the apartment; (3) Lewis and Perkins refused to exit the

apartment despite officers repeatedly announcing themselves at the door for over thirty minutes;

(4) the officers felt it necessary to wait for the Fugitive Apprehension Team to assist with

entering the apartment; (5) officers entered the apartment and searched their assigned areas at

nearly simultaneous times; and (6) officers believed the cabinet in the kitchen to be a space in

which a person could be hiding based on their prior training and experience. Lewis does not

contest any of these assertions. Therefore, there is no reason to believe the district court

committed an error in finding that these circumstances supported a valid protective sweep.

         D. The Sufficiency of the Evidence for Constructive Possession

         Lewis argues that there was insufficient evidence to sustain a conviction for actual or

constructive possession of the firearm, noting that there was no direct physical evidence

connecting him to the firearm. However, we have previously held that possession may be

proved by direct or circumstantial evidence. United States v. Bailey, 553 F.3d 940, 944 (6th Cir.

2009).    We must review such evidence in the light most favorable to the prosecution in

considering whether any rational trier of fact could have found possession, and we draw all

available inferences and issues of credibility in favor of the jury’s verdict. See United States v.

Caseer, 399 F.3d 828, 840, 844–45 (6th Cir. 2005) (Boggs, C.J., concurring in part and

dissenting in part) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); United States v. Avery,

128 F.3d 966, 971 (6th Cir. 1997).

         Since there is no assertion that Lewis had actual possession of the firearm, we consider

only whether there was sufficient evidence to support the finding that Lewis had constructive

possession by “knowingly ha[ving] the power and the intention at a given time to exercise

dominion and control over [the firearm], either directly or through others.” United States v.



                                               -9-
Case No. 16-5171, United States v. Lewis


Kelsor, 665 F.3d 684, 692 (6th Cir. 2011) (citation omitted). Evidence that the defendant “‘ha[d]

dominion over the premises where the firearm [wa]s located’ is sufficient to establish

constructive possession.” United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998) (citation

omitted).   Mere presence is not enough, but “other incriminating evidence, coupled with

presence . . . will serve to tip the scale in favor of sufficiency.” United States v. Birmley,

529 F.2d 103, 107–08 (6th Cir. 1976).

       The totality of the evidence sufficiently supports a finding of constructive possession.

Lewis’s regular presence in the apartment and the testimony from Baskin confirming that Lewis

was the only one with control and access to the apartment on the day of the arrest creates a

strong inference of dominion over the apartment, including the area where the firearm was

discovered. In addition, a recording and transcript showed Perkins discussing how police failed

to find his gun after he hid it and Lewis responding that he should have done the same.

       While Lewis disputes the admission of the recording and transcript as evidence because

of difficulties in understanding the recording, Lewis’s withdrawal of his objection at trial

constitutes a waiver of his argument that it was an abuse of discretion. See United States v.

Denkins, 367 F.3d 537, 544 (6th Cir. 2004) (“[W]e have held that this sort of abandonment of an

issue . . . waives any right of appeal on that issue.”). Indeed, in addition to withdrawing his

objection, Lewis affirmatively argued that the recording supported his case that the firearm

belonged to Perkins and not him. Under such circumstances, we find it within the discretion of

the district court to have admitted as evidence the recording. Because Lewis waived (rather than

forfeited) his objection to the admission of the transcript, we do not even review its admission

for plain error, and the issue is resolved as accepted by him below. See Denkins, 367 F.3d at

542–43.



                                              - 10 -
Case No. 16-5171, United States v. Lewis


       The prosecution’s argument that the recording showed Lewis admitting that he possessed

the discovered gun, coupled with the other evidence showing Lewis’s dominion and control over

the apartment, provides enough evidence for a rational trier of fact to find beyond a reasonable

doubt that Lewis constructively possessed the firearm.

       E. Sentencing Credit for Acceptance of Responsibility

       Lewis’s argument that the district court violated his rights by refusing to grant him a

reduction in sentencing for acceptance of responsibility under U.S.S.G. § 3E1.1 is meritless. We

review sentencing decisions under a deferential abuse-of-discretion standard and will not

overturn unless the district court has committed a clear error. United States v. Coppenger, 775

F.3d 799, 802–03 (6th Cir. 2015). Lewis does not argue that he pleaded guilty or that he made

any other effort to claim responsibility for the offenses charged.     Furthermore, it is well

established that the government “may encourage a guilty plea by offering substantial benefits in

return for the plea.” Corbitt v. New Jersey, 439 U.S. 212, 219 (1978); see also United States v.

Davis, 170 F.3d 617, 628 (6th Cir. 1999). Therefore, we find the refusal of sentencing credit

under U.S.S.G. § 3E1.1 proper.

                                     III. CONCLUSION

       For the foregoing reasons, we affirm Lewis’s conviction and sentence.




                                             - 11 -
