FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]
Vivianne Jeruchim, with whom Jeruchim & Davenport, LLP,
was on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
Lynch, Kayatta, and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
Bey pleaded guilty to a variety of drug and firearm offenses.
Pursuant to Federal Rule of Criminal Procedure 11(a)(2),
Bey's plea agreement reserved his right to have this
court review the district court's denial of his motion to
suppress the results of a search following an evidentiary
hearing. Otherwise, the plea agreement expressly waived
Bey's right to appeal his conviction, or to appeal any
sentence that did not exceed seventy months. Bey now appeals
not only the denial of the suppression motion, but also his
sixty-month sentence, arguing that enforcing his waiver of
any right to challenge his sentence would be a miscarriage of
justice because the trial court incorrectly calculated the
sentencing range under the United States Sentencing
Guidelines (the "Guidelines"). For the reasons that
follow, we affirm the denial of the suppression motion and
reject the challenge to the sentence as waived.
this appeal follows a guilty plea, we derive the facts from
the plea agreement, the change-of-plea colloquy, the
unchallenged portions of the presentence investigation
report, and the sentencing hearing transcript. See United
States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir.
2013). Further, "we recite the [additional] facts as
found by the district court [in the evidentiary hearing] to
the extent they are not clearly
erroneous." United States v. Beras, 183 F.3d
22, 24 (1st Cir. 1999).
19, 2013, five police officers with the Everett,
Massachusetts, Police Department sought to execute a warrant
for Bey's arrest that stemmed from a domestic violence
dispute involving a firearm. Based on information offered by
the victim of that earlier offense, the officers determined
that Bey was likely staying at the home of Clarissa Summons
in Everett. Bey was barred from being within 100 yards of
Summons's residence by an abuse prevention order.
Stallbaum was one of the five officers who arrived at
Summons's apartment and later testified at the
evidentiary hearing. Stallbaum, in testimony credited by the
district court, stated that Summons responded to the
officers' knocks on her front door. Asked whether Bey
was inside, Summons repeated aloud, "Is Paul Bey
here?", and stated that she was not sure whether Bey was
in the residence. According to Stallbaum, Summons then looked
to her left and put her finger to her lips in a hushing
gesture. She then backed into the apartment while opening the
door to the home. The officers took this as both an
acknowledgment of Bey's presence in the residence and an
invitation to enter.
point, the officers entered the home, drew their weapons, and
quickly found Bey in a bedroom. Concerned for his own safety,
Stallbaum moved a black backpack on a nearby bed away from
Bey's reach, later testifying that he noticed that the
bag felt heavy and the objects inside were distributed
unevenly. The officers handcuffed Bey and asked him, before
issuing Miranda warnings, whether the backpack was
his. Bey told the officers the bag belonged to Summons. The
officers removed Bey from the apartment.
Bey's departure, several officers stayed behind and
"look[ed] around" Summons's apartment. While
Stallbaum left to obtain a standard-issue consent to search
form, another officer on the scene, Officer McCabe, asked
Summons for detailed information regarding her four-year-old
son who lived in the home and was present at the time of the
arrest. At some point in this conversation, McCabe mentioned
contacting the Massachusetts Department of Children and
Families ("DCF"). The district court found that
McCabe did not, however, refer directly to the possibility of
removing Summons's son from the home.
that interaction, Stallbaum returned and asked Summons to
sign the consent to search form, seeking her permission to
search the premises for evidence of the gun used by Bey in
the domestic violence offense that had prompted the arrest.
Stallbaum told Summons that she was free to withhold her
consent, but, if she did, she and her son would have to leave
the house for several hours while the police secured the
apartment and applied for a search warrant. Stallbaum, at
this point, had no knowledge of the earlier conversation
between McCabe and Summons regarding the DCF.
signed the consent to search form. She told the officers that
the black backpack belonged to her but that she was lending
it to Bey. A search of the backpack yielded a loaded 9
millimeter semi-automatic pistol with two magazines of
ammunition, a plastic bag containing 15.31 grams of
marijuana, a medication container containing 22.5
15-milligram oxycodone pills, and a small electronic scale
determined to have cocaine and marijuana residue on it.
September 24, 2013, on the basis of the evidence found in the
backpack, a grand jury issued an indictment accusing Bey of
committing six drug and firearm-related offenses. Bey moved
to suppress the evidence found in the bag as the fruits of
illegal searches of both Summons's residence and the
backpack itself. After an evidentiary hearing, the ...