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United States v. Bey

United States Court of Appeals, First Circuit

June 9, 2016

PAUL BEY, Defendant, Appellee.


          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 appellee.

          Before Lynch, Kayatta, and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         Paul 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.

         I. Background

         Because 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."[1] United States v. Beras, 183 F.3d 22, 24 (1st Cir. 1999).

         On July 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.

         Sergeant 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.[2] 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.

         At this 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.

         After 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.

         Following 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.

         Summons 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.

         On 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 ...

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