     Case: 09-50324     Document: 00511139115          Page: 1    Date Filed: 06/11/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 11, 2010

                                       No. 09-50324                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

GLEN LEWIS,

                                           Defendant-Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:07-CR-503


Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
WIENER, Circuit Judge:*
        Plaintiff-appellant Glen Lewis appeals his conviction for being a felon in
possession of a firearm. Lewis contends, inter alia, that the district court erred
in denying his motion to suppress evidence. Agreeing with the government that
the officer’s warrantless entry into Lewis’s residence was justified by exigent
circumstances, we affirm.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-50324

                       I. FACTS AND PROCEEDINGS
A.      Facts
        Just before midnight on October 9, 2006, the San Antonio police received
both a 911 hangup call and a disturbance call related to the same San Antonio
apartment. Officer James Phelan was sent to investigate the calls. When
Officer Phelan arrived at the apartment, which was on the second floor of the
apartment building, he knocked on the door. Although it was his usual practice
to do so, Officer Phelan could not recall whether he had announced himself as
a San Antonio police officer when he knocked. A woman later identified as
Darlene Solid answered the door.
        While standing outside the apartment at the door, Officer Phelan asked
the woman if everything was all right and if there was anyone else present in
the residence. The woman, who appeared calm, said her boyfriend, Glen Lewis
(“Lewis”), was in the apartment, at which time Lewis moved into view behind
her. As Lewis was standing behind both her and the door, he was only partly
visible to Officer Phelan.
        Officer Phelan then asked the woman and Lewis for identification so that
he could include their names on his incident report for the 911 calls. While
Officer Phelan was waiting for them to produce identification, he watched
through a crack in the door as Lewis extended his arm and dropped a handgun
on a chair located behind the door. Officer Phelan immediately asked Lewis
“What’s the deal with the gun?” Lewis flatly denied having a gun, responding
“What gun?” According to Officer Phelan, Lewis’s denial caused him to worry
about his safety, so he grabbed Lewis by the arm and pulled him out of the
apartment to handcuff him for safety reasons.


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        Out on the front balcony, the woman interfered with Officer Phelan’s
attempt to handcuff Lewis by yelling that the gun was hers and that it was not
loaded. When the woman then grabbed onto Officer Phelan’s arm, he hit the
emergency button on his radio to summon backup officers.           Officer Phelan
eventually handcuffed Lewis and held both him and the woman against the
balcony railing while waiting for the backup officers to arrive. Although the
record is admittedly unclear on this point, it appears that Officer Phelan
conducted a partial pat down of Lewis at this time and discovered three grams
of marijuana in his pocket.
        After the backup officers arrived within only a few minutes and secured
both Lewis and the woman, Officer Phelan entered the apartment and retrieved
the firearm, which was loaded. The woman then provided Officer Phelan with
some identification, including Lewis’s Louisiana prisoner card. After discovering
that Lewis had previously been convicted in Louisiana for “simple robbery,” a
felony, Officer Phelan arrested Lewis for being a felon in possession of a firearm.
As Officer Phelan was putting Lewis into the police car, he also discovered on
Lewis’s person a loaded magazine, which fit the gun that Officer Phelan had
recovered from the apartment.
B.      Proceedings
        Several months later, Lewis was charged with possession of a firearm by
a convicted felon in violation of 18 U.S.C. § 922(g)(1). Lewis filed a motion to
suppress the gun, the marijuana, and his post-detention statements, contending
that (1) there was no probable cause for Officer Phelan to enter the apartment,
seize the firearm, and arrest Lewis, and (2) there were no exigent circumstances




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justifying the warrantless search of the apartment. The government opposed the
motion.
      The district court held a hearing on the motion and Officer Phelan testified
for the government. According to Officer Phelan, he had initially handcuffed
Lewis because he felt concern for his safety after Lewis lied about the gun.
Officer Phelan testified that he had retrieved the gun for safety purposes and
that he would have arrested Lewis for the marijuana regardless of his prior
felony conviction. The defense did not call any witnesses.
      At the close of the hearing, the government contended that Officer
Phelan’s warrantless search had been justified by exigent circumstances. In
support of its argument, the government relied primarily on our holding in
United States v. Jones.1 When the district court asked defense counsel if he had
any response to the government’s argument, counsel responded that he had
hoped to call a witness, but that he had failed to procure her appearance so he
“[didn’t] really have [any response].”
      The district court denied Lewis’s motion to suppress, concluding that
Officer Phelan’s warrantless search was justified by exigent circumstances. As
the district court explained
      I do find that, given the facts that were testified to by Officer
      Phelan, I do find that when he saw the gun dropped and when the
      defendant denied that there was a gun at all, I think it created a
      problem of officer safety. Officer Phelan took appropriate action to
      cuff both the defendant and I understand the woman there at the
      scene and who I understand would have been the witness and in
      doing that he acted appropriately to secure officer’s safety. That
      gave him exigent circumstances to obtain the gun, that he


      1
          239 F.3d 716 (5th Cir. 2001).

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                                   No. 09-50324

        determined that the defendant had a felony conviction and that gave
        him probable cause for the arrest. So, I overrule the Motion to
        Suppress based upon the facts presented by Officer Phelan.

The case then proceeded to trial, at the conclusion of which the jury returned a
guilty verdict.
        At sentencing, the government argued for an upward departure,
contending that Lewis’s criminal history was “extensive, lengthy and violent.”
Defense counsel opposed any upward departure, citing Lewis’s compliance with
all of Officer Phelan’s instructions during the arrest and Lewis’s “closed head
injury” resulting from a 2003 motorcycle accident, which counsel claimed
“explain[ed] a lot of [Lewis’s] behavior.” When Lewis was given an opportunity
to speak, he implied that Officer Phelan had lied on the stand and that he was
innocent of the offense of conviction.
        The district court sentenced Lewis to 78 months in prison, which was at
the high end of the guidelines range. The district court explained that, in its
judgment and in light of the factors set forth in 18 U.S.C. § 3553(a), the advisory
guidelines range was appropriate. Lewis timely filed an appeal, contending that
(1) the warrantless search was unjustified, (2) his sentence is substantively
unreasonable, as it is greater than necessary to satisfy the goals of 18 U.S.C. §
3553(a), and (3) the firearm statute, 18 U.S.C. § 922(g)(1), unconstitutionally
extends federal power to reach the non-commercial possession of firearms.
                            II. LAW AND ANALYSIS
A.      Whether the district court erred when it denied Lewis’s motion to
        suppress the evidence
        “We review a district court’s denial of a motion to suppress by viewing the
facts in the light most favorable to the prevailing party (here, the government),


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                                       No. 09-50324

accepting the district court’s factual findings unless clearly erroneous, and
considering all questions of law de novo.”2                   “The presence of exigent
circumstances is a finding of fact, which is reviewed for clear error.” 3 “A finding
is clearly erroneous only if the court is left with a definite and firm conviction
that a mistake has been committed.”4 “Where a district court’s denial of a
suppression motion is based on live oral testimony, the clearly erroneous
standard is particularly strong because the judge had the opportunity to observe
the demeanor of the witness.”5 The district court’s ruling should be upheld “if
there is any reasonable view of the evidence to support it.” 6
      A warrantless entry into a residence is presumed unreasonable unless the
officers obtain consent or the entry is justified by both probable cause and
exigent circumstances.7         “The possibility that evidence will be removed or
destroyed, the pursuit of a suspect, and immediate safety risks to officers and
others are exigent circumstances that may excuse an otherwise unconstitutional
intrusion into a residence.”8 “Because it is essentially a factual determination,
there is no set formula for determining when exigent circumstances may justify




      2
          United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995).
      3
          Jones, 239 F.3d at 719.
      4
          United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).
      5
          United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).
      6
          United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999).
      7
          Jones, 239 F.3d at 719.
      8
          Id. at 720.

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a warrantless entry.”9 To assess whether an exigency justifies a warrantless
search, we have in the past looked to the following non-exhaustive list of factors:
(1) the degree of urgency involved and the amount of time necessary to obtain
a warrant; (2) the reasonable belief that contraband will be removed; (3) the
possibility of danger to the police officers guarding the site while a search
warrant is sought; (4) information indicating that the possessors of the
contraband are aware that the police are on their trail; and (5) the ready
destructibility of the contraband.10
       Lewis contends that Officer Phelan’s entry into his apartment to secure
the handgun was not justified by either probable cause or exigent
circumstances.11 In response, the government contends that the warrantless
search was justified pursuant to our holding in United States v. Jones.12 In that
case, several officers acting on a drug trafficking tip approached a residence to
conduct a knock and talk.13 After a man opened the door and began speaking
with the officers, one of the officers saw through the window that there was a
handgun on the kitchen table within reach of another occupant.14 Out of concern


       9
            United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997).
       10
            Id.
       11
           We note that Lewis does not challenge Officer Phelan’s decision to pull him out of
the apartment and handcuff him after he denied the presence of the gun. In Lewis’s initial
brief, he expressly concedes that “[w]hen [Officer Phelan] saw Lewis drop a gun and heard him
deny having a gun, [Officer Phelan] was justified in pulling Lewis out of the apartment and
handcuffing him for officer safety.” Therefore, we need not consider this issue on appeal.
       12
            239 F.3d 716, 720 (5th Cir. 2001).
       13
            Id.
       14
            Id.

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                                       No. 09-50324

for his own safety and that of the other officers, he immediately walked into the
residence and secured the handgun.15 When it later became clear that the
occupant was a convicted felon, the officer arrested him for being a felon in
possession of a firearm.16 In concluding that exigent circumstances justified the
officer’s warrantless entry into the apartment, the court in Jones explained that
“[a] firearm that is located a short distance from an occupant in a residence
likely containing illegal narcotics presents an obvious safety risk to law
enforcement officers.”17        Thus, particularly given the “highly deferential
standard of review,” we held that the district court had not clearly erred in
denying the motion to suppress.18
      Like the officers in Jones, Officer Phelan approached a potentially highly
volatile situation. Unlike the officers in that case, however, Officer Phelan was,
at least initially, proceeding alone. Although he did not have any reason to
believe that the apartment contained illegal narcotics, he was there to
investigate two separate 911 calls — one made from within the apartment and
another made from a neighboring apartment. Shortly thereafter, when Lewis
lied to Officer Phelan about having a handgun, Officer Phelan became justifiably
concerned for his safety.        And, as we have previously explained, “domestic
disputes often involve high emotions and can quickly escalate to violence.” 19



      15
           Id.
      16
           Id.
      17
           Id. at 720.
      18
           Id.
      19
           United States v. Rodriguez, 601 F.3d 402, 408 (5th Cir. 2010).

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Officers responding to reports of such disputes often make it their first priority
“to secure the scene and create a safe environment in which to investigate the
report.”20 In these situations, “[c]ommon sense dictates that a firearm that could
be accessed by someone at the scene and used against officers or others should
be unloaded, and at least temporarily, kept in a safe place.” 21
      Here, Officer Phelan reasonably began securing the scene by taking both
Lewis and his girlfriend outside the apartment and waiting for backup. It is of
no moment that Officer Phelan decided, based on his experience, that it would
be safer for him to take Lewis and his girlfriend outside the apartment before
going in to secure the handgun only minutes later. As we have previously
explained, “[i]n evaluating exigency, it must be borne in mind that [courts]
should consider the appearance of the scene of the search in the circumstances
presented as it would appear to reasonable and prudent men standing in the
shoes of the officers.”22 “If reasonable minds may differ, [we will] not second
guess the judgment of experienced law enforcement offices concerning the risks
of a particular situation.”23 Had Officer Phelan entered the apartment to secure
the handgun at the first available moment, he might have subjected both himself
and the occupants to considerably greater danger in an already volatile
situation.       In fact, the situation did escalate quickly after Lewis and his
girlfriend were both outside the apartment: Lewis’s girlfriend grabbed Officer



      20
           Id.
      21
           Id.
      22
           Blount, 123 F.3d at 838.
      23
           Id. (internal citations and quotation marks omitted).

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Phelan’s arm at about the same time that he discovered marijuana in Lewis’s
pocket.
       Further, we have previously held that officers responding to a similar
domestic disturbance report were justified in temporarily seizing a firearm in
plain view, even though the officers did not have probable cause to do so at the
time of the seizure.24 In Rodriguez, we found persuasive that the officers had
arrived at the scene of a domestic disturbance report, had quickly been alerted
to the presence of a shotgun in the residence, and had discovered that the 911
caller had not reported the presence of children on the premises.25 In the instant
case, Officer Phelan arrived at the scene of a 911 hangup call that had been
corroborated by a separate and independent disturbance call. Officer Phelan
knew that Lewis had lied to him about the handgun, and, justifiably concerned
for his safety, he could not be certain whether the occupants might also have lied
about something else, such as whether there was someone else in the residence.
Officer Phelan was therefore justified in temporarily securing the firearm in the
interest of officer safety until he could complete his investigation of the domestic
disturbance report.26 Under these particular circumstances, and in light of the




       24
            Rodriguez, 601 F.3d at 408.
       25
            Id.
       26
          A close review of the record raises considerable doubt as to whether Lewis preserved
this issue for appeal by raising it before the district court. There, Lewis apparently contended
only that Officer Phelan lacked probable cause to arrest him, not to enter the residence and
secure the handgun. Regardless of Lewis’s status as a felon, Officer Phelan doubtless had
probable cause to arrest him based on the marijuana found in his pocket. In any event, the
government has failed to address this point, and, for purposes of this appeal, we will assume
that the issue of probable cause to enter and seize the gun is properly before us.

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highly deferential standard of review, we conclude that the district court did not
err in denying Lewis’s motion to suppress.
B.      Whether Lewis’s sentence is substantively reasonable
        Lewis argues that his within-guidelines sentence of 78 months is
substantively unreasonable because it is greater than necessary to satisfy the
goals of § 3553(a). Specifically, he suggests that the circumstances of his case
were “less serious than the typical felon-in-possession offense” and that it was
entirely reasonable for him to pick up a gun before he opened the door given the
lateness of the hour and the possibility that “robbers or some other threat” were
waiting outside.              Lewis also contends that his personal history and
characteristics as a hurricane evacuee and a person who had suffered a closed
head injury demonstrate that his 78-month sentence is substantively
unreasonable. In response, the government urges that Lewis’s sentence is
presumptively reasonable and that it is supported by his lengthy and violent
criminal history.
        In determining a sentence, the district court is required to make an
individualized assessment of the case based on the facts presented to it after
first calculating the advisory guidelines range of imprisonment.27 After doing
that and hearing arguments from the parties regarding the appropriate
sentence, a district court must consider all of the § 3553(a) factors to determine
whether they support the requested sentences.28                    We ultimately review a
sentence for reasonableness in light of the 3553(a) factors.29


        27
             Gall v. United States, 552 U.S. 38, 49-51 (2007).
        28
             Id. at 49-50.
        29
             United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).

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      To conduct the reasonableness review, we must engage in a bifurcated
analysis, first determining whether the district court committed any significant
procedural error with regard to the sentence.30 Then, if there is no procedural
error, we review the substantive reasonableness of the sentence under a
deferential abuse-of-discretion standard.31            If the district court imposes a
sentence within a properly calculated guidelines range, we shall apply a
presumption of reasonableness to the sentence, inferring that the district court
considered the relevant sentencing factors.32
      Although the parties cite the abuse of discretion standard, we conclude
that here plain error review applies.33 Although defense counsel asked the court
to impose a below-guidelines sentence, he did not object when the court imposed
its within-guidelines sentence. As Lewis failed to object in the district court to
his within-guidelines sentence for the reason he raises on appeal, plain error
review applies.34 To show plain error, Lewis must show a forfeited error that is
clear or obvious and that affects his substantial rights.35
      The record in the instant case reflects that the district court made an
individualized sentencing decision. The court correctly calculated the advisory
guidelines range, listened to the parties’ arguments and Lewis’s statement, and



      30
           Id. at 360.
      31
           Id.
      32
           Rita v. United States, 551 U.S. 338, 347 (2007).
      33
           See United States v. Vonsteen, 950 F.2d 1086, 1091 (5th Cir. 1992).
      34
           United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      35
           Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

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considered the § 3553(a) factors. The district court then specifically recounted
Lewis’s lengthy criminal history and noted his personal circumstances, including
his hurricane evacuation and his closed head injury.                   In formulating the
sentence, the district court cited the need for the sentence to promote respect for
the law, provide just punishment for the offense, and to deter Lewis from
engaging in future criminal conduct. Thus, Lewis has not provided an adequate
reason to disturb the sentence selected by the district court.36
C.      Whether 18 U.S.C. § 922(g)(1) unconstitutionally extends federal
        power to reach the non-commercial possession of firearms
        To preserve the argument for further review, Lewis contends that §
922(g)(1) is unconstitutional under United States v. Lopez because it regulates
activity that does not have a substantial effect on interstate commerce.37 As
Lewis concedes, though, his argument is foreclosed by our precedent.38
                                    III. CONCLUSION
        For the foregoing reasons, the judgment of the district court is, in all
respects,
AFFIRMED.




        36
           Gall, 552 U.S. at 51 (explaining that even an appellate court’s reasonable conclusion
“that a different sentence [would be] appropriate is insufficient to justify reversal of the
district court”).
        37
             514 U.S. 549 (1995).
        38
          See United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996) (holding that the
reasoning in Lopez does not render § 922(g)(1) unconstitutional).

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