United States Court of Appeals

For the First Circuit

No. 06-1683

UNITED STATES OF AMERICA,

Appellee,

v.

STEVEN McCARTY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Lynch, Circuit Judges.

Jeffrey M. Silverstein, with whom Russell, Silver &

Silverstein was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief, for appellee.

February 2, 2007
 Unless otherwise noted, all police officers and detectives 1

referred to in this opinion are from the City of Waterville Police

Department.

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TORRUELLA, Circuit Judge. Steven McCarty ("McCarty") was

charged in an indictment with possessing an unregistered firearm in

violation of 26 U.S.C. §§ 5861(d) and 5871, and with possessing a

firearm after having previously been committed to a mental

institution in violation of 18 U.S.C. § 922(g)(4). McCarty moved

to suppress certain statements and evidence he claimed were

obtained in violation of the Fourth and Fifth Amendments. The

court denied the motion. McCarty then entered a guilty plea

conditioned on his right to appeal the denial of the motion to

suppress. The court sentenced McCarty to thirty-six months in

prison, to be followed by three years of supervised release.

McCarty now appeals the denial of the motion to suppress and his

sentence. After careful consideration, we affirm.

I. Background

On July 10, 2004, at 4:18 P.M., Police Officer Brame 1

("Brame") received a complaint from a woman identifying herself as

McCarty's ex-girlfriend. She told Brame that she had recently been

to McCarty's apartment to retrieve her possessions, that McCarty

was in possession of marijuana plants, and that McCarty had

"vaguely" threatened her with a sawed-off shotgun. Brame told

Detective Goss ("Goss") about the matter; Goss called the woman

back, and asked her to come into the police station. After
 The warrant authorized the police to search for drugs, drug 2

paraphernalia, and evidence of ownership, distribution, or

cultivation of drugs. Police Officer Goss stated that he did not

address the sawed-off shotgun in the warrant application because it

was not prohibited by Maine law. Neither party challenges the

scope of the warrant.

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interviewing the woman and her sister and learning that McCarty had

been recently institutionalized for mental illness, Goss drafted a

warrant application to search McCarty's apartment. Goss brought

the warrant application to a state district attorney for approval,

and then presented the application to a state complaint justice.

While Goss was seeking approval of the warrant, Police Officer

Rumsey ("Rumsey") contacted Bureau of Alcohol, Tobacco, and

Firearms ("BATF") Agent McSweyn ("McSweyn"), and informed him that

they would be executing a search warrant on an apartment thought to

contain firearms. The state complaint justice issued the warrant

at approximately 8:30 P.M. A box on the warrant stated, "This 2

warrant shall be executed between the hours of 7:00 AM and 9:00

PM."

Brame, Goss, Rumsey, and three other police officers

proceeded to McCarty's apartment, arriving at 8:56 P.M. At 8:57

P.M., Brame knocked on McCarty's door, announced his identity, and

stated that he had a search warrant. After gaining entry, the

officers encountered McCarty, handcuffed him, and led him to a

couch in his living room. The officers began to search the

apartment at 8:58 P.M. The officers found marijuana and marijuana
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paraphernalia in the apartment. While searching behind the couch

in McCarty's living room, Goss found a duffle bag containing a 12-

gauge sawed-off shotgun. When McCarty saw Goss uncover the gun, he

stated that it was an antique known as "the old peacemaker," and

that it was in the same condition as when it was manufactured.

McCarty then asked the police officers for permission to smoke a

cigarette, which he was allowed to do. Upon returning to the

apartment, McCarty complained that his handcuffs were too tight,

and Goss removed them. Goss then seated McCarty at a table

approximately four to five feet away from the duffle bag containing

the gun.

McSweyn arrived and conferred with Goss. Goss told

McSweyn that he had found a gun, and showed him the shotgun. When

Goss showed McSweyn the shotgun, McCarty stated, "That's mine.

It's an old peacemaker." McSweyn measured the gun, and determined

that the barrel length was eleven inches.

McSweyn then began to question McCarty. At this time, a

member of the search team, Police Officer Burbank, was standing

next to McCarty. Before asking him any questions, McSweyn did not

read McCarty any Miranda warnings, but instead told McCarty that he

was not under arrest, that he was free to leave whenever he wanted,

and that he did not have to answer questions. McCarty nevertheless

told McSweyn that he had received the gun from his grandfather,

that he had altered it to make it easier to fire and that he had in
 McCarty also moved to suppress evidence collected at his 3

apartment because he alleged that officers failed to knock and

announce themselves before executing the warrant. The court denied

this motion, and McCarty does not raise it on appeal.

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fact fired the weapon, and that he had not registered the gun with

the BATF. McCarty also repeated his assertion that the gun was an

antique. The search concluded at 10:35 P.M., when all law

enforcement officers left the apartment.

On February 9, 2005, a grand jury indicted McCarty on one

count of possession of an unregistered firearm in violation of 26

U.S.C. §§ 5861(d) and 5871, and one count of possession of a

firearm after having previously been committed to a mental

institution in violation of 18 U.S.C. § 922(g)(4). McCarty was

arrested on April 14, 2005. On May 9, 2005, McCarty filed a motion

to suppress all evidence collected at his apartment because the

search warrant was defectively executed when officers remained past

9:00 P.M., and to suppress all statements McCarty made to Goss and

McSweyn because McCarty was not informed of his Miranda rights.3

The motion was referred to a magistrate judge, who recommended that

it be denied. The district court accepted the recommendation of

the magistrate judge and issued an order denying the motion to

suppress. On October 12, 2005, McCarty pled guilty pursuant to a

conditional plea reserving his rights to appeal the denial of the

motion to suppress.
 The district court chose to apply the Sentencing Guidelines as 4

they existed prior to the November 1, 2004 amendments because they

would result in a more lenient sentence for McCarty and because of

ex post facto concerns. Neither McCarty nor the Government appeals

this decision, and we do not disturb it on appeal.

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McCarty's amended pre-sentence report ("PSR") calculated

his base offense level at 20, U.S.S.G. § 2K2.1(a)(4)(B) (2003).4

The PSR applied a two-level enhancement under U.S.S.G. § 2K2.1

(b)(3) (2003) because the offense involved a "destructive device,"

resulting in a total offense level of 22. The PSR also determined

that McCarty had a criminal history category of I.

McCarty raised seven objections to the PSR, among them

that the application of the § 2K2.1(b)(3) enhancement constituted

impermissible double counting, and that in any case, he did not

qualify for the enhancement because he did not possess a

"destructive device." The court denied the objections and applied

the § 2K2.1(b)(3) enhancement. The court then applied a threelevel reduction for acceptance of responsibility, U.S.S.G. § 3E1.1

(2003), resulting in a total offense level of 19, which translates

to a recommended Sentencing Guidelines range of thirty to thirtyseven months in prison. The court sentenced McCarty to thirty-six

months in prison on each count, to be served concurrently, followed

by three years of supervised release.
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II. Discussion

A. Motion to Suppress Evidence Collected at McCarty's Apartment

McCarty contends that the district court should have

suppressed the evidence collected by the police at his apartment on

July 10, 2004, because the search warrant obtained by police stated

that it could only be executed between 7:00 A.M. and 9:00 P.M., and

police remained at his apartment until 10:35 P.M. We review a

district court's decision to deny a motion to suppress de novo as

to legal conclusions and for clear error as to factual findings.

United States v. Vongkaysone, 434 F.3d 68, 73 (1st Cir. 2006).

The Fourth Amendment prohibits "unreasonable searches and

seizures." Even a search conducted pursuant to a warrant may be

"unreasonable" given the manner in which the search has been

conducted. See, e.g., United States v. Ramírez, 523 U.S. 65, 71

(1998) ("Excessive or unnecessary destruction of property in the

course of a search may violate the Fourth Amendment, even though

the entry itself is lawful."); cf. United States v. Young, 877 F.2d

1099, 1105 (1st Cir. 1989) ("[Nothing] forbids continuing a search

at night, at least when doing so is reasonable.").

McCarty complains that the search of his apartment was

unreasonable because it was conducted, in part, at night, whereas

the warrant authorizing the search stated that the search could

only be executed during the daytime. McCarty's concern about

nighttime searches is not unprecedented, see, e.g., Jones v. United
 The Government argues that federal law should govern the 5

question of whether a search warrant has been executed during the

nighttime, and points out that Fed. R. Crim. P. 41(a)(2)(B) defines

nighttime as beginning at 10:00 P.M. Because we find that the

search was reasonable if nighttime begins at 9:00 (as defined by

Maine law), the search must also be reasonable if nighttime begins

at 10:00 (as defined by federal law), and thus we need not reach

this issue. We express no opinion as to whether state law or

federal law would control in these circumstances.

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States, 357 U.S. 493, 498-99 (1958) ("[I]t is difficult to imagine

a more severe invasion of privacy than the nighttime intrusion into

a private home that occurred in this instance."), but nighttime

searches are not per se unreasonable; rather, we apply a

traditional reasonableness test to the search. Young, 877 F.2d at

1105.

In this case, the search warrant provided that nighttime

began at 9:00 P.M. See also Me. R. Crim. P. 41(h) ("[A] warrant

shall direct that it be executed between the hours of 7 a.m. and 9

p.m. unless the judge or justice of the peace . . . authorizes its

execution at another time."). The search warrant team gained 5

entry to the apartment at 8:57 P.M. and began its search at 8:58

P.M. Thus, even though they were cutting it very close, the police

did in fact commence the search during "daytime" as defined by the

warrant. The search continued until 10:35 P.M., but we have held

that a search which began during the daytime but which continued

through the nighttime is not necessarily unreasonable. Young, 877

F.2d at 1104-05; see also State v. Sargent, 875 A.2d 125, 127-28

(Me. 2005) (finding no grounds for suppression where a search began
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before 9:00 P.M. but concluded at 11:00 P.M.). In fact, the search

of McCarty's apartment was significantly less intrusive than the

valid search conducted in Young, which began in the morning, and

continued throughout the night and for two additional days. 877

F.2d at 1104.

Furthermore, we have stated that:

[i]n considering the question of

reasonableness [of a search], a court must

assess the totality of the circumstances,

including "the scope of the particular

intrusion, the manner in which it is

conducted, the justification for initiating

it, and the place in which it is conducted."

United States v. Cofield, 391 F.3d 334, 336 (1st Cir. 2004). Here,

there is no evidence that McCarty was roused from his sleep, or

that the search was particularly intrusive. To the contrary, when

the search team knocked on the door, McCarty's roommate opened it,

and the police found McCarty standing awake in his living room.

McCarty was allowed a considerable degree of freedom during the

search, which by all accounts was conducted in a very professional

manner. Finally, there is no dispute that the search was welljustified given the report of weapons and drugs by McCarty's exgirlfriend.

Thus, we conclude that the search of McCarty's apartment

was reasonable, and that the district court was correct to have
 Because we conclude that the search was reasonable, we see no 6

need to reach the constitutional issue of what remedy we might

apply to an unreasonable search in the wake of Hudson v. Michigan,

126 S. Ct. 2159 (2006) (declining to apply the exclusionary rule to

a violation of the knock-and-announce requirement).

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denied McCarty's motion to suppress the evidence collected from his

apartment.6

B. Motion To Suppress McCarty's Statements

McCarty argues that his statements to the police and the

BATF should be suppressed because they were obtained in violation

of Miranda v. Arizona, 384 U.S. 436 (1966). We review the district

court's denial of McCarty's motion to suppress de novo as to legal

conclusions and for clear error as to factual findings. United

States v. Rojas-Tapia, 446 F.3d 1, 3 (1st Cir. 2006).

In Miranda, the Court held that prior to interrogating a

suspect who is in custody, that suspect must be advised of certain

rights in order to protect his or her Fifth Amendment right against

self-incrimination. 384 U.S. at 467-68. Thus, in order to claim

a Miranda violation, a suspect must be in custody, Pasdon v. City

of Peabody, 417 F.3d 225, 227 (1st Cir. 2005), and the suspect must

have been interrogated, Caputo v. Nelson, 455 F.3d 45, 49-50 (1st

Cir. 2006).

McCarty made the first set of statements that he claims

should be suppressed while he was handcuffed. As such, there can

be no question that McCarty made those statements while he was in

custody. See New York v. Quarles, 467 U.S. 649, 655 (1984)
 Revealing the shotgun in McCarty's presence does not appear to 7

have been Goss' plan; rather, the shotgun happened to be discovered

behind the couch on which McCarty was seated.

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(finding that a suspect was in custody because he "was surrounded

by at least four police officers and was handcuffed when the

questioning at issue took place"). Thus, we must determine whether

an "interrogation" occurred. An interrogation occurs when there is

"express questioning, . . . [or] any words or actions on the part

of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to

elicit an incriminating response." Rhode Island v. Innis, 446 U.S.

291, 301 (1980). The facts of this case are similar to those in

United States v. Genao, where we found that no interrogation

occurred when an officer showed a suspect drugs and guns seized

from the suspect's house and the suspect blurted out an inculpatory

statement. 281 F.3d 305, 308, 310 (1st Cir. 2002). Likewise, in

the present case, Officer Goss "revealed and inspected the shotgun

in [McCarty's] immediate presence." Appellant's Br. at 23. After 7

seeing the shotgun, McCarty blurted out that the gun was a

"peacemaker" and began to tell Goss about its origins. We find

that Goss' removal of the gun from behind the couch was not

interrogation, and accordingly, there can be no Miranda violation.

Similarly, the second set of statements that McCarty

claims should be suppressed were not the product of interrogation.

Like the first set of statements, the police did not direct any
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questions to McCarty; rather, Goss simply showed the gun to Agent

McSweyn, who proceeded to measure the gun in McCarty's presence.

McCarty then told the officers, unprompted, that the gun was his.

Given Goss' uncontradicted testimony that neither he nor McSweyn

cast so much as an inquiring glance at McCarty, we find that

McCarty's unsolicited statement was not the product of

interrogation, and thus there was no Miranda violation.

The third set of statements presents a different

question. While police were concluding the search, Agent McSweyn

asked McCarty questions about the origins and ownership of the

shotgun. There is little debate that these questions were designed

to elicit a response, and as such, they constitute interrogation.

Innis, 446 U.S. at 301. However, before finding a Miranda

violation, we must determine whether McCarty was "in custody."

Pasdon, 417 F.3d at 227. In order to determine whether McCarty was

in custody, we look to see if "there is a 'formal arrest or

restraint on freedom of movement' of the degree associated with a

formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983).

When McSweyn began to question McCarty, McCarty was no longer

handcuffed. Although Agent McSweyn and one additional police

officer remained in McCarty's presence, McSweyn explained to

McCarty that he was not under arrest, that he was free to leave at

any time, and that he did not have to answer any questions. It is

clear that there was no arrest here and we conclude that this does
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not constitute a "restraint on freedom of movement" that would

normally be associated with an arrest. See Podlaski v.

Butterworth, 677 F.2d 8, 9 (1st Cir. 1982) (finding that a suspect

was not in custody where "the defendant [was not] told he was under

arrest; . . . was in a home familiar to him; . . . [and] police

activity was consistent with investigatory questioning").

Accordingly, because McCarty was not in custody while being

questioned by McSweyn, there was no violation of Miranda. Because

we have found no Miranda violations, the district court did not err

in denying McCarty's motion to suppress.

C. Application of U.S.S.G. § 2K2.1(b)(3)

McCarty's final salvo is that the district court

incorrectly calculated his total offense level under the Sentencing

Guidelines when it included the § 2K2.1(b)(3) enhancement for a

"destructive device." Although the Sentencing Guidelines are now

advisory rather than mandatory, see United States v. Booker, 543

U.S. 220, 245-46 (2005), we continue to emphasize their importance

in sentencing decisions and require courts to correctly perform

Guidelines calculations. United States v. Jiménez-Beltre, 440 F.3d

514, 518 (1st Cir. 2006) ("In most cases, this will mean that the

district court will have to calculate the applicable guidelines

range including the resolution of any factual or legal disputes

necessary to that calculation . . . ."). We review Guidelines

calculations de novo as to legal conclusions, and for clear error
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as to the sentencing court's factual findings. United States v.

Robinson, 433 F.3d 31, 35, 38 (1st Cir. 2005).

McCarty first argues that the application of the § 2K2.1

(b)(3) enhancement is impermissible because it constitutes double

counting, inasmuch as both the enhancement and the calculation of

the base offense level, § 2K2.1(a)(4)(B), are based on his

possession of a sawed-off shotgun. We have often said that double

counting is "less sinister than the name implies." See, e.g.,

United States v. Lilly, 13 F.3d 15, 19 (1st Cir. 1994) (quoting

United States v. Zapata, 1 F.3d 46, 47 (1st Cir. 1993)). This is

because two (or more) guidelines will often rely on the same

underlying facts, although accounting for different sentencing

concerns. See, e.g., United States v. Wallace, 461 F.3d 15, 36

(1st Cir. 2006) (applying § 2K2.1(a)(4)(B) to account for unlawful

possession of a weapon and § 5K2.6 to account for the way in which

the weapon was used). Thus, when

neither an explicit prohibition against double

counting nor a compelling basis for implying

such a prohibition exists, clearly indicated

adjustments for seriousness of the offense and

for offender conduct can both be imposed,

notwithstanding that the adjustments derive in

some measure from a common nucleus of

operative facts.

Lilly, 13 F.3d at 20.

Here, there is no explicit prohibition against double

counting; to the contrary, U.S.S.G. § 2K2.1 cmt. n.11 (2003)

explicitly states: "A defendant whose offense involves a
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destructive device receives both the base offense level from the

subsection applicable to a firearm listed in 26 U.S.C. § 5845(a)

(e.g., subsection . . . (a)(4)(B)), and a two level enhancement

under subsection (b)(3)." Nor is there a compelling basis for

implying such a prohibition. Whereas the sentencing guideline for

the base offense, § 2K2.1(a)(4)(B), covers the wide range of

weapons found in 26 U.S.C. § 5845(a), the § 2K2.1(b)(3) enhancement

is intended to provide harsher punishment for destructive devices,

a narrower set of more dangerous weapons. See § 2K2.1 cmt. n. 11

("Such [destructive] devices pose a considerably greater risk to

the public welfare than other National Firearms Act weapons.").

For example, possession of a silencer might qualify a defendant for

the § 2K2.1(a)(4)(B) base offense level because a silencer is

listed as a firearm in 26 U.S.C. § 5845(a), but would not qualify

the defendant for the § 2K2.1(b)(3) enhancement because a silencer

is not a "destructive device." See 26 U.S.C. § 5845(f) (defining

destructive devices). Thus, because the guidelines for the base

offense and the enhancement account for different sentencing

concerns, we see no double-counting problem with using both

guidelines to calculate McCarty's total offense level.

McCarty also argues that the weapon he possessed did not

qualify as a destructive device. McCarty was found to possess a

shotgun with a barrel length of eleven inches, a barrel diameter of

over one-half inch, and an overall length of twenty-four inches.
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26 U.S.C. § 5845(f) includes in the definition of a destructive

device:

any type of weapon by whatever name known

which will, or which may be readily converted

to, expel a projectile by the action of an

explosive or other propellant, the barrel or

barrels of which have a bore of more than

one-half inch in diameter, except a shotgun or

shotgun shell which the Secretary finds is

generally recognized as particularly suitable

for sporting purposes. 

McCarty suggests that this subsection excludes all shotguns from

the definition of a destructive device. McCarty is clearly wrong,

as § 5845(f) specifically defines a destructive device as a device

with a barrel in excess of one half inch and which expels

projectiles, which is an accurate description of the sawed-off

shotgun he possessed. Furthermore, § 5845(f) specifically

excludes from the definition of a destructive device a "shotgun or

shotgun shell which the Secretary [of the Treasury] finds is

generally recognized as particularly suitable for sporting

purposes." (emphasis added). The phrase "which the Secretary

finds" logically modifies "shotgun or shotgun shell." Thus,

§ 5845(f) excludes from the definition of destructive device only

those shotguns the Secretary finds suitable for sporting purposes,

and implies that other shotguns are considered destructive devices.

McCarty also contends that his shotgun is suitable for

sporting purposes, and thus cannot be a destructive device.

However, the relevant question here, according to § 5845(f), is
 We see no merit to McCarty's claim that "to make a judicial 8

determination in the place of the Secretary regarding the

suitability of a shotgun for sporting purposes would violate the

separation of powers doctrine." Appellant's Br. at 26. We note

that § 5845(f) does not state that it allows all shotguns for

sporting purposes except for those prohibited by the Secretary.

Rather, § 5845(f) prohibits any destructive device except for those

shotguns allowed by the Secretary for sporting purposes. Thus, in

the present case, we are not substituting our judgment for that of

the Secretary, we are merely noting that he has not acted pursuant

to his authority to deem the type of shotgun possessed by McCarty

as suitable for sporting purposes.

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whether the Secretary of the Treasury has found that a shotgun is

suitable for sporting purposes. The Government avers that the

Secretary of the Treasury has not recognized sawed-off shotguns as

"useful for sporting purposes," and McCarty has offered no evidence

to the contrary. The Secretary's decision to not recognize sawed- 8

off shotguns as suitable for sporting purposes has ample support;

courts have found that sawed-off shotguns, such as the one

possessed by McCarty, "lack usefulness except for violent and

criminal purposes," United States v. Fortes, 141 F.3d 1, 8 n.3 (1st

Cir. 1998), and that they "hinder[] rather than aid[], the

precision involved in sport shooting," United States v. Linson, 276

F.3d 1017, 1019 (8th Cir. 2002).

Finally, McCarty notes that § 5845(f) excludes from the

definition of a destructive device a firearm "which is . . . an

antique." McCarty claims that his gun was an antique, and that the

Government has failed to rebut this assertion. However, McCarty

pled guilty to a violation of 26 U.S.C. § 5861(d), which required
-18-

him to have possessed a firearm, as defined by 26 U.S.C. § 5845(a).

Section 5845(a) defines a firearm as including a "shotgun having a

barrel or barrels of less than 18 inches in length," but excludes

an "antique firearm." Thus, by pleading guilty to possessing a

firearm as defined in § 5845(a), McCarty pled guilty to possessing

a weapon which was, by definition, not an "antique firearm."

Accordingly, the district court properly concluded that for

sentencing purposes, the weapon that McCarty possessed was not an

antique firearm. We conclude that because the weapon that McCarty

possessed was a destructive device as defined in § 5845(f), the

court properly applied the two-level enhancement under U.S.S.G.

§ 2K2.1(b)(3) (2003).

III. Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

Affirmed.