United States Court of Appeals For the First Circuit

No. 06-1287

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH PELLETIER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge] [Hon. David M. Cohen, U.S. Magistrate Judge]

Before

Selya and Howard, Circuit Judges, and Smith,* District Judge.

Michael B. Whipple, with whom Thomas F. Hallett Law Offices was on brief, for appellant. Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

November 28, 2006

* Of the District of Rhode Island, sitting by designation. SELYA, Circuit Judge. During its last term, the Supreme

Court held that a violation of the "knock and announce" rule in the

course of executing a search warrant did not justify the

suppression of evidence subsequently discovered. See Hudson v.

Michigan,

(2006). This appeal requires us to

determine whether Hudson should be extended to a knock and announce

violation committed in the course of executing an arrest warrant.

We conclude that the Hudson Court's reasoning mandates such an

extension. That conclusion, coupled with our conclusion that the

defendant's other arguments are unavailing, prompts us to affirm

the judgment below.

I. BACKGROUND

The relevant facts are assembled in the magistrate

judge's recommended decision, see United States v. Pelletier, No.

CRIM. 05-09,

, at *1 (D. Me. July 27, 2005), which

the district court adopted in denying the motion to suppress. We

assume the reader's familiarity with this exegetic account and

rehearse here only those facts that are needed to place the appeal

in perspective.

On December 30, 2004, the United States Parole Commission

issued an arrest warrant for multiple parole violations (all

involving the use of controlled substances) directed at defendant-

appellant Joseph Pelletier. Around the same time, the Maine Drug

Enforcement Agency and the Topsham police department, having come

-2- to suspect that the defendant was dealing drugs, obtained a state

"no-knock" warrant authorizing the search of the defendant's home

on Augusta Road in Bowdoin, Maine. Deputy United States Marshals

charged with executing the federal arrest warrant coordinated their

efforts with the officers assigned to execute the state search

warrant.

At around 7:00 a.m. on the morning of January 21, 2005,

a team of law enforcement agents arrived at the Augusta Road

residence. The agents effected an entry by main force. Once

inside, they encountered the defendant's girlfriend, Cheryl

Sprague. As the search progressed, some of the officers questioned

Sprague and her sister, Jennifer Sewall (who arrived at the house

shortly after the entry). Both women disclaimed any knowledge of

the defendant's whereabouts.

Officers then repaired to the Sewall residence and

interviewed Jennifer's husband. He ruminated that the defendant

might be at a motel in Augusta, Maine. Jennifer Sewall

subsequently confirmed that the defendant was staying in room 151

at the Econo Lodge Motel.

The officers reached the motel at about 9:00 a.m. They

learned that room 151 was registered in Jennifer Sewall's name.

When shown a photograph, however, a maintenance man identified the

defendant as the occupant. At that juncture, about six to eight

officers lined up outside the room. An officer knocked loudly four

-3- or five times in rapid succession, eliciting no response.

Approximately ten to fifteen seconds after the first knock, the

officer used a passkey obtained from the maintenance man to open

the door. He yelled "Police!" while his comrades fanned out into

the room. They found the defendant face-down on the bed.

The defendant offered no resistance as the officers

handcuffed him. The room contained drug paraphernalia in plain

view, including a glass crack pipe, a propane torch, steel wool,

glassine baggies, and hypodermic needles. In a partially open

drawer, the officers observed a thick wad of cash (later determined

to aggregate $4,740) and a plastic container of an unknown

substance (later determined to be heroin). The Marshals arrested

the defendant for parole violations and, according to prosecution

witnesses, the defendant was informed of his Miranda rights. See

Miranda v. Arizona,

(1966).

In due course, a federal grand jury charged the defendant

with a single count of possession of heroin with intent to

distribute. See

(a)(1). In a pretrial motion to

suppress, the defendant argued that the officers' failure to comply

with the knock and announce rule demanded exclusion of all

subsequently gathered evidence and statements. See Wong Sun v.

United States,

(1963) (outlawing prosecutorial

use of "fruits of the poisonous tree"). As part of this argument,

he asserted that the arrest warrant did not justify an entry into

-4- his motel room; that the authorities needed to have a search

warrant before seizing any items; and that his statements should be

suppressed because they had been obtained involuntarily.

The district court referred the suppression motion to a

magistrate judge. Following an evidentiary hearing, the magistrate

judge determined that the only preserved issues were (i) the effect

of the officers' noncompliance with the knock and announce rule and

(ii) the alleged involuntariness of the defendant's statements.1

He resolved both issues in the government's favor. Although the

government conceded the knock and announce violation, the

magistrate judge, ruling before the Supreme Court decided Hudson,

found that exigent circumstances justified the failure properly to

knock and announce. As to the second issue, the magistrate judge

found that the police had administered appropriate Miranda warnings

and that no impermissible promises or threats had been made.

Based on these findings, the magistrate judge recommended

wholesale denial of the motion to suppress. The defendant

objected, but the district court nonetheless embraced the

recommendation and denied the motion. See United States v.

Pelletier, No. CRIM. 05-09,

, at *1 (D. Me. Aug. 23,

2005). The defendant thereafter entered a conditional guilty plea,

reserving the right to appeal the suppression rulings. See Fed. R.

1 In deciding what issues were live, the magistrate judge determined, among other things, that the defendant had waived any challenge to the sufficiency of the administrative warrant. This determination has not been challenged on appeal.

-5- Crim. P. 11(a)(2). The district court sentenced the defendant as

a career offender to a 151-month incarcerative term. This appeal

ensued.

II. DISCUSSION

On appeal, the defendant advances three arguments. His

flagship claim is that the officers' admitted failure to comply

with the knock and announce rule rendered their entry into the

motel room unconstitutional (and, thus, required suppression of all

the evidence that the illegal entry yielded). Second, the

defendant asseverates that his statements should be suppressed

because they were obtained involuntarily. Third, and finally, he

complains of sentencing error. We consider these contentions

sequentially.

A. Knock and Announce.

We begin with the government's conceded violation of the

knock and announce rule. That rule, extant at common law, has been

codified in a federal statute that provides:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

. The rule is not a freestanding expression of

policy but, rather, is "a command of the Fourth Amendment."

Hudson,

. It applies equally to officers

-6- wielding arrest warrants and officers wielding search warrants.

See United States v. Alejandro,

(2d Cir. 2004).

In terms, the rule requires law enforcement officers to

knock and announce their presence and authority prior to effecting

a non-consensual entry into a dwelling. See Richards v. Wisconsin,

(1997); Wilson v. Arkansas,

(1995). It is well-settled, however, that in exigent circumstances

law enforcement officers may eschew compliance with the rule. See

United States v. Ramirez,

(1998); Richards,

.

During the pendency of this appeal, the Hudson Court

added a further refinement. In that case, the police had obtained

a warrant to search for drugs and guns at Hudson's abode. While

executing the warrant, the officers announced their presence, but

tarried only three to five seconds before turning the doorknob and

entering. See Hudson,

.

Hudson sought suppression of evidence subsequently

gleaned on the ground that the premature entry violated his Fourth

Amendment rights. The Court reiterated the interests protected by

the knock and announce rule, including the preemption of violent

self-defense measures, the safeguarding of property, and the

respecting of human dignity.

. It proceeded to

distinguish those interests from the interests protected by, for

example, the requirement of a valid search warrant, the core

-7- purpose of which is to shield "persons, houses, papers, and

effects" from desultory government scrutiny.

(quoting U.S.

Const. amend. IV). As compared to the latter, exclusion of

evidence obtained in the case of a knock and announce violation

simpliciter would not serve to vindicate the interests at stake.

. Weighing the potential deterrent value of applying

the exclusionary rule against the potential social costs, the Court

concluded that the balance did not favor exclusion.

at 2165-

68.

In the case at hand, the defendant's opening brief, filed

prior to the Hudson Court's decision, argued that no exigent

circumstance justified the officers' noncompliance with the knock

and announce rule (and that, therefore, the entry was illegal).

The opinion in Hudson makes clear, however, that an inquiring court

should undertake an exigent circumstances analysis only to

determine whether there has been a knock and announce violation in

the first instance, not to determine if, in the face of an

acknowledged violation, evidence should be suppressed. See

. Recognizing the import of this clarification, the defendant

shifted gears in his reply brief and attempted to distinguish

Hudson by arguing that here, unlike in Hudson, there was no

underlying authority to enter the premises. Although the

government maintains that the defendant paid insufficient attention

to this argument below, the timing of the Hudson decision and the

-8- ambiguities in the record prompt us to meet the argument head-on.

We proceed to that task.

It is black-letter law that an arrest warrant carries

with it, by implication, a limited grant of authority to enter the

target's residence so long as there is reason to believe that the

target is inside. See Payton v. New York,

(1980). Generally speaking, this principle extends to the target's

hotel or motel room, since such an accommodation is akin to a

temporary residence. See Stoner v. California,

(1964); United States v. Beaudoin,

(1st Cir.

2004);2 see also United States v. Weems,

(1st Cir.

2003) (noting in dictum that if the defendant "effectively lived"

where he was found, "the arrest warrant itself would be enough to

authorize entry . . . to effectuate his arrest"). Here, however,

there are two possible barriers that prevent us from summarily

resolving the authority-to-enter issue on the basis of these

precedents.

First, the defendant suggests that the motel room was not

his because it was registered to Jennifer Sewall. The suggestion

is that, at least in the absence of consent or exigent

circumstances, "even when armed with an arrest warrant, police must

2 The Supreme Court vacated the judgment in Beaudoin, albeit as to a codefendant, on a sentence-related ground. See Champagne v. United States,

(2005). The validity of the Beaudoin court's Fourth Amendment analysis is unaffected by that development.

-9- generally have a search warrant to enter lawfully a third person's

home." Joyce v. Town of Tewksbury,

(1st Cir.

1997) (en banc) (per curiam). This potential barrier is easily

surmounted.

Leaving aside an obvious concern about the defendant's

standing to raise this point at all, cf. Minnesota v. Carter,

(1998) (holding that non-resident defendants had no

legitimate expectation of privacy in apartment in which they

briefly conducted drug-dealing activities), the Joyce pronouncement

does not help the defendant. The reason behind the pronouncement

is clear: "[a]rmed solely with an arrest warrant for a single

person, the police could search all the homes of that individual's

friends and acquaintances." Steagald v. United States,

(1981).

It is readily evident that this reasoning finds no

traction in the soil of this case. The record makes manifest that

regardless of the name in which the motel room was registered, the

defendant — and only the defendant — was occupying it. After all,

at the suppression hearing the defendant admitted that he had been

"staying" at the motel for "[a]pproximately three weeks."

Moreover, throughout his appellate briefs the defendant refers to

the room as "his room" or "his hotel room." See, e.g., Appellant's

Br. at 30, 35. There is no evidence that either Jennifer Sewall

(who informed the officers that she lived with her husband, not at

-10- the motel) or any other individual occupied the room during the

relevant time frame.

That gets the grease from the goose. Because the

defendant was the sole resident of room 151, the officers' entry on

the basis of a warrant for the defendant's arrest did not

jeopardize any cognizable third-party interest. Joyce is,

therefore, inapposite.

The second potential barrier arises out of the fact that

Payton authorized an entry of a dwelling pursuant to an arrest

warrant founded on probable cause. See Payton,

.

In this instance, the arresting officers wielded a parole violation

warrant, see

, which by its terms was issued on the

basis of "reliable information" that the defendant had breached the

conditions of his parole. In some cases, such a distinction might

make a dispositive difference. Cf. Skinner v. Ry. Labor

Executives' Ass'n,

(1989) ("Except in certain

well-defined circumstances, a search or seizure . . . is not

reasonable unless it is accomplished pursuant to a judicial warrant

issued upon probable cause."). Here, however, that is not the

case.

Although the nature of the instant warrant might appear

at first blush to cut against the government, it in fact cuts the

other way. It is settled beyond hope of contradiction that

parolees are not entitled to the same panoply of Fourth Amendment

-11- protections as are ordinary citizens. See Samson v. California,

(2006); see also United States v.

Winchenbach,

(1st Cir. 1999) (explaining that an

exception to Payton's arrest warrant requirement applies in cases

of parolees and probationers). Thus, a valid parole violation

warrant, issued on the basis of reasonable grounds to believe that

a parolee has violated the conditions of his parole, is adequate to

support an entry into the parolee's domicile for the purpose of

executing the warrant. See United States v. Cardona,

(1st Cir. 1990). It is immaterial to this Fourth Amendment

analysis that no parole or probation officer is present when law

enforcement agents enter the parolee's premises to execute the

warrant. See

Here, the magistrate judge supportably found that the

defendant had waived any challenge to the validity of the parole

violation warrant. See supra note 1. On appeal the defendant has

not attempted to argue that the warrant was issued on the basis of

a constitutionally infirm predicate. We must, therefore, treat the

parole violation warrant as valid and enforceable. Doing so, we

conclude that the warrant provided the officers with lawful

authority to enter the motel room for the purpose of arresting the

defendant.

That ends this aspect of the appeal. Because Hudson

applies with equal force in the context of an arrest warrant, the

-12- district court did not err in refusing to order suppression based

upon the officers' conceded violation of the knock and announce

rule.

B. Voluntariness.

Next, the defendant maintains that his statements to the

authorities should be suppressed because they were obtained in

violation of his constitutional rights. He claims that, after

administering Miranda warnings,3 the officers dangled improper

incentives to secure his cooperation, such as offering to ditch

certain incriminating evidence — he says that one of the officers

went so far as to stomp on a glass crack pipe, shattering it while

promising that, in return for cooperation, "[w]e can forget about

this stuff" — and assuring him that cooperation would make it less

likely that he would be classified as a career offender.

The magistrate judge, who saw and heard the witnesses at

the suppression hearing, credited the officers' testimony that,

from the outset, the defendant was cooperative, responsive, and

keenly interested in what they might be able to do to make his lot

easier. The judge found that no untoward threats or promises had

been voiced; the officers merely conveyed to the defendant that

they "would discuss with the prosecution the extent to which he had

3 The defendant questioned below whether Miranda warnings were administered. The magistrate judge found as a fact that such warnings had been given in a timely manner. See Pelletier,

, at *14. The defendant does not contest that finding on appeal.

-13- cooperated." Pelletier,

, at *15. Relatedly, the

magistrate judge found that the defendant's version of the

encounter, including his hyperbolic account of the crack pipe

incident, was not credible.

at *6 n.11, *15.

On appeal, the defendant faces a steep uphill climb. We

must accept the lower court's findings of fact as long as they are

not clearly erroneous and subject its conclusions of law to de novo

review. See Ornelas v. United States,

(1996);

United States v. Coplin,

(1st Cir. 2006).

In this instance, the challenged determination is

factbound and, thus, subject to clear error review. See United

States v. Pagán-Santini,

(1st Cir. 2006).

Moreover, that determination was largely the product of credibility

calls — and the trier's assessments of witness credibility are

treated on appeal with great respect. See, e.g., United States v.

Laine,

(1st Cir. 2001); United States v. Charles,

(1st Cir. 2000). Scouring the record, we discern

no error, clear or otherwise, in the magistrate judge's findings.

To say more on this subject would be to paint the lily.

A determination about whether police coercion has taken place

inevitably hinges on the totality of the circumstances. United

States v. Byram,

(1st Cir. 1998). Given the

facts as supportably found by the magistrate judge, there is no

-14- principled basis for concluding that the defendant's statements

were involuntary.

C. Sentencing.

The defendant's sentencing challenge has two facets.

First, he argues that the district court incorrectly classified him

as a career offender under USSG §4B1.1 (2004). Second, he argues

that the court gave undue weight to the guidelines and failed to

consider factors warranting a more lenient sentence. We address

these arguments separately.

1. Career Offender Status. The sentencing guidelines

provide in pertinent part that a defendant will be designated a

career offender if he "has at least two prior felony convictions of

either a crime of violence or a controlled substance offense."

USSG §4B1.1(a)(3). Here, the defendant insists that the record

contains no competent proof of his career offender status. The

government counters that the defendant did not preserve any

challenge to the adequacy of proof and that, in any event, the

challenge fails on the merits. Because the record below reflects

that the defendant objected on several occasions to his designation

as a career offender, we assume, for argument's sake, that his

adequacy of proof challenge has been preserved for appeal.

The essential facts are as follows. At the disposition

hearing, the prosecutor, referring to the presentence investigation

report (PSI Report), argued that the defendant should be considered

-15- a career offender because he had twice been convicted of predicate

offenses (and, thus, had crossed the career offender threshold).

The prosecutor based this argument on two predicate convictions: a

1986 federal conviction and a 1995 Maine state conviction.

According to the PSI Report, the federal conviction, which yielded

a 10-year prison term, was for possession with intent to distribute

cocaine and conspiracy to commit that offense. The state

conviction, which resulted in a sentence of nine years (five

suspended), was for drug trafficking. The prosecutor, without

objection, introduced a certified copy of the state conviction. As

to the federal conviction (which had occurred in the District of

Maine), the prosecutor indicated that, if the court deemed it

necessary, she could "go downstairs and get a certified copy." No

one made such a request.

On appeal, the defendant strives to convince us that the

government's proof of the federal conviction was inadequate under

Shepard v. United States,

(2005), and that, therefore,

the "two predicate convictions" requirement was not satisfied. We

are not persuaded.

The short of it is that Shepard and its progenitor,

Taylor v. United States,

(1990), address the

appropriate sources for ascertaining the elements of a putative

predicate offense when the statute of conviction encompasses both

conduct that would constitute a predicate offense and conduct that

-16- would not. See Shepard,

; Taylor,

;

see generally United States v. Turbides-Leonardo, ___ F.3d ___, ___

(1st Cir. 2006) [No. 05-2374, slip op. at 8-9]; Conteh v. Gonzales,

(1st Cir. 2006).

Here, however, the defendant has offered no coherent

attack on the match between the elements of his prior federal

conviction and the description of "a controlled substance offense"

within the purview of USSG §4B1.1(a)(3). Instead, he seems to

concede, as he must, that possession with intent to distribute

cocaine is unarguably a predicate offense under the career offender

guideline; he argues only that the government failed to produce

evidence of the fact of his federal conviction.

That argument is jejune. For one thing, the defendant

did not object to the recital of the federal conviction in the PSI

Report — and in the absence of any objection, a statement in a

presentence report is sufficient to prove the fact proposed. See,

e.g., United States v. Arrieta-Buendia,

(8th

Cir. 2004) (explaining that, absent an objection, a PSI Report may

be a permissible source of information about a prior conviction for

sentence-enhancement purposes). For another thing, the sentencing

court had the capacity to take judicial notice of its own records,

see St. Louis Baptist Temple, Inc. v. FDIC,

, 1172

(10th Cir. 1979); Fed. R. Evid. 201, which in this instance would

-17- have cemented the existence of the earlier federal conviction. No

more was exigible.

2. Reasonableness. The defendant's last remaining

plaint is that the district court viewed the available sentencing

options too grudgingly. He excerpts the following passage from the

district judge's comments at the disposition hearing:

Mr. Pelletier, when I looked at your file earlier . . . I was tempted to give you the maximum sentence. The reason I'm not going to give you 188 months is because you don't have any history of violence.

According to the defendant, the description of 188 months as "the

maximum sentence" shows that the district court viewed the

guidelines as establishing a mandatory sentencing range.

Relatedly, the defendant charges that the district court gave

insufficient consideration to the factors made relevant by

(a), mulling those factors only with respect to fixing

a possible sentence somewhere within the guideline range. Neither

argument withstands scrutiny.

The Supreme Court's landmark decision in United States v.

Booker,

(2005), rendered the guidelines advisory.

In the aftermath of Booker, we review a district court's sentence

for reasonableness.

. That standard of review applies

whether the actual sentence falls inside or outside the guideline

sentencing range. See Turbides-Leonardo, ___ F.3d at ___ [slip op.

-18- at 12-13]; United States v. Jiménez-Beltre,

, 517 (1st

Cir. 2006) (en banc).

In constructing a sentence under an advisory guidelines

regime, a sentencing court ordinarily should begin by calculating

the applicable guideline sentencing range; then determine whether

or not any departures are in order; then mull the factors

delineated in

(a) as well as any other relevant

considerations; and, finally, determine what sentence, whether

within, above, or below the guideline sentencing range, appears

appropriate. See United States v. Dixon,

(1st

Cir. 2006); Jiménez-Beltre, 440 F.3d at 518-19.

In this instance, the district court, called upon to

sentence the defendant without the benefit of our clarifying

opinion in Jiménez-Beltre, correctly anticipated this approach.

Except for his abortive challenge to the court's use of the career

offender provision, previously rejected, the defendant effectively

concedes the correctness of the calculated guideline sentencing

range (151-188 months). By the same token, he raises no question

about the sentencing court's eschewal of any and all departures.

His attack, rather, strikes at the third and fourth steps of the

sentencing pavane. He posits that the sentencing court overvalued

the impact of the guideline sentencing range and, relatedly, failed

to attach due weight to his advanced age (55), his long struggle

-19- with drug addiction, his poor health, his cooperation with the

authorities, and the sexual abuse that he endured as a child.

To begin, the defendant's reliance on the above-quoted

excerpt from the sentencing transcript is misplaced. Looking at

the disposition hearing as a whole, it is perfectly clear that the

district court appreciated the advisory nature of the guidelines

and acted accordingly. The court's use of the word "maximum" was,

at worst, an awkward locution — even that is a stretch — and we

will not read more into it than the context fairly suggests. Cf.

Lenn v. Portland Sch. Comm.,

(1st Cir. 1993)

(disregarding "infelicitous choice of phrase" where record as a

whole made manifest that district court had undertaken proper

analysis). There is simply no indication that the sentencing court

overvalued the guidelines.

Moving to the allegedly mitigating factors, the defendant

raised each of these considerations at sentencing. The district

court, without rehashing the defendant's importunings, explained

that it had "taken into account [the section 3553(a)] factors,"

"carefully considered the Sentencing Guideline Range set forth in

the advisory Sentencing Guidelines," and determined that a 151-

month sentence was appropriate. In arriving at this determination,

the court gave significant weight to the defendant's recidivism,

his repeated parole violations, his unexcused flight from

supervision, and the fact that he had committed the offense of

-20- conviction while on parole. The court concluded that, in its view,

the defendant was not "capable or willing to follow the rules of

society, and after having numerous chances . . . a sentence of 151

months is entirely appropriate."

In our view, the overall sentence is unimpugnable. The

district court took into account the mitigating circumstances

raised by the defendant and the factors delineated in section

3553(a), determined that the defendant's persistent reversion to

criminal activity was inexcusable, and sentenced him at the nadir

of the applicable guideline sentencing range. Even if the court

were terse in rejecting the defendant's argument for mitigation,

that terseness would not have undermined the reasonableness of the

sentence. See, e.g., Turbides-Leonardo, ___ F.3d at ___ [slip op.

at 16] (noting that brevity in sentencing "is not to be confused

with inattention").

We add an eschatocol of sorts. Post-Booker, the

sentencing guidelines, though advisory, remain an important datum

in constructing a reasonable sentence. See United States v.

Navedo-Concepción,

(1st Cir. 2006); Jiménez-

Beltre, 440 F.3d at 518. Consequently, a defendant who attempts to

brand a within-the-range sentence as unreasonable must carry a

heavy burden. See Turbides-Leonardo, ___ F.3d at ___ [slip op. at

15]; United States v. Smith,

(1st Cir. 2006). Here,

the sentencing court, which gave a sensible set of reasons for its

-21- choice of sentence, was not required to dwell on why some more

lenient sentence would have been inadequate. See, e.g., Jiménez-

Beltre, 440 F.3d at 519 (stating that, ordinarily, the

reasonableness requirement is satisfied when the court offers a

"plausible explanation" for the chosen sentence and reaches a

"defensible overall result").

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the judgment below in all particulars.

Affirmed.

-22-