United States Court of Appeals

For the First Circuit

No. 10-2412

UNITED STATES OF AMERICA,

Appellee,

v.

DWIGHT PANETO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

 Lipez, Selya and Howard, Circuit Judges.

Mary S. McElroy, Assistant Federal Defender, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Peter F. Neronha, United States Attorney, was on brief, for

appellee.

November 22, 2011
SELYA, Circuit Judge. Having been found guilty of

knowingly and intentionally possessing a firearm as a convicted

felon, defendant-appellant Dwight Paneto complains that the lower

court erred both in refusing to suppress certain evidence and in

calculating his guideline sentencing range (GSR). His merits claim

raises a knife-edge question concerning the scope of the plain view

exception to the warrant requirement of the Fourth Amendment, and

his sentencing claim requires us to clarify the reach of USSG

§2K2.1(b)(6). Concluding, as we do, that no reversible error

occurred, we affirm the judgment below.

I. BACKGROUND

We sketch the origins and travel of the case, reserving

more exegetic factual detail for our later discussion of the

assignments of error.

On August 19, 2009, the narcotics unit of the Providence,

Rhode Island, Police Department mounted an operation designed to

probe street-level drug trafficking in a crime-riddled neighborhood

of the city. Events that took place in the course of the operation

(to which we shortly shall return) led to a plainclothes officer's

purchase of drugs through a third party and a subsequent

confrontation at the defendant's home. After seizing drugs, a gun,

and ammunition, they took the defendant into custody.

As matters turned out, the defendant had a number of

prior felony convictions. With this information in hand, a federal

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grand jury returned a two-count indictment charging the defendant

with being a felon in possession of a firearm, see 18 U.S.C.

§ 922(g)(1), and possessing with intent to distribute cocaine base

(crack cocaine), see 21 U.S.C. § 841(a)(1). The defendant moved

unsuccessfully to suppress the evidence recovered during the search

of his home. A trial jury rendered a split decision; it convicted

the defendant on the gun charge but acquitted him on the drugtrafficking charge. The district court imposed an 84-month

incarcerative sentence. This timely appeal followed.

II. ANALYSIS

We bifurcate our ensuing discussion, turning first to the

defendant's claim that the district court erred in denying his

suppression motion and then proceeding to address his claim of

sentencing error.

A. Suppression.

In reviewing the denial of a motion to suppress, "we

accept the [trial] court's findings of fact unless clearly

erroneous and evaluate its legal conclusions de novo." United

States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2001). This is a

standard that counsels respect for both the trial court's factual

findings and the inferences drawn by the court from the discerned

facts. See United States v. Hughes, 640 F.3d 428, 434 (1st Cir.

2011).

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For purposes of this appeal, the events leading up to the

defendant's arrest are of paramount importance. We rehearse the

relevant facts as supportably found by the district court. See

United States v. Lee, 317 F.3d 26, 30 (1st Cir. 2003).

The central figure in the police action was Detective

Nicholas Ludovici. During the run-up to the arrest, Ludovici —

dressed in civilian garb — was cruising the neighborhood in an

unmarked car. He intended to drive around, aimlessly and at a slow

rate of speed, in anticipation that someone would think him to be

looking for a "fix" and offer to sell him drugs. Other officers,

supporting Ludovici's mission, were lurking nearby.

In the early afternoon, a stranger (later identified as

Deshawn Owens) hailed Ludovici from the sidewalk. Ludovici pulled

over to the curb, Owens got into the car, and Ludovici told him

that he was looking for a "straight 20" (street slang for a $20 bag

of crack cocaine). Owens replied that he would take Ludovici to

his "boy's house" and identified his "boy" as "D." Owens then

directed Ludovici to a house at 103 Laura Street. Since Ludovici,

unbeknownst to Owens, had activated his cellular telephone's twoway function, the conversation between the two men was overheard by

three other officers, all of whom proceeded to the designated

destination.

Once Ludovici had pulled to the curb on Laura Street,

Owens asked him for the purchase money. Ludovici gave Owens a $20

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bill that he had pre-marked with a small ink slash through the zero

in the figure "20" appearing in the upper right corner. Owens

exited the car, entered the building, left briefly to visit a

nearby shop, reentered the house, and eventually returned to the

car. Once inside, he handed Ludovici a clear plastic bag

containing crack cocaine.

Ludovici started to drive Owens back toward their

original meeting place. En route, he covertly signaled his support

crew. The other officers joined him and took Owens into custody. 

Thereafter, three of them (including Ludovici) repaired to Laura

Street. They walked to the front door of the multi-family dwelling

at 103 Laura Street. When they entered the structure, they

observed the landlord painting in the stairwell. Ludovici,

displaying his badge, inquired whether anyone had recently gone in

and out. The landlord pointed to the third-floor apartment.

The officers decided to conduct a "knock and talk," a

maneuver in which officers who have not yet secured a warrant go to

investigate a suspected crime and determine whether the suspect

will cooperate. See Hughes, 640 F.3d at 431. They knocked on the

door of what proved to be the defendant's apartment. The defendant

opened the portal, the officers identified themselves, and the

defendant invited them in. The defendant was not alone; his

girlfriend, two of his children, and a teenage family friend were

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also inside the residence. A menagerie of reptiles and other

animals completed the ensemble.

The front door of the apartment opened into what appeared

to be the living room. Once the defendant ushered the officers

into a side room, Ludovici noticed a $20 bill on a coffee table. 

He immediately believed this to be the marked bill that he had

given Owens to fund the drug buy and said as much. He bent to pick

it up, confirmed the presence of the mark, and seized it. He

proceeded to administer Miranda warnings to the defendant. See

Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).

The defendant protested that the money was not his and

told the officers that they were free to search the apartment. He

signed both a waiver of his Miranda rights and a consent-to-search

form.

As the search progressed, Ludovici picked up and opened

a small canister perched on the coffee table. He found two more

bags of cocaine (similar to the one that he had just purchased). 

With this contraband in hand, he asked the defendant if he had

anything else hidden in the apartment. The defendant replied that

there was a gun in a safe. The safe, located in a bedroom, proved

difficult to open. Finally, with help from the defendant's

girlfriend, the officers opened it and seized an unloaded 9mm

Beretta. In that same bedroom, the officers found under a mattress

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a magazine containing six rounds of compatible ammunition. The 1

arrest and indictment followed apace.

This brings us to the defendant's motion to suppress the

evidence recovered from his home. Pertinently, he argued that both

the consent to search and the fruits of the search itself were

tainted by Ludovici's earlier manipulation of the $20 bill. The

government countered that the evidence had been lawfully seized.

After a three-day evidentiary hearing, the district

court, ruling ore tenus, denied the motion to suppress. The court

avoided the plain view issue, instead holding that the inevitable

discovery doctrine, see Nix v. Williams, 467 U.S. 431, 446-47

(1984), validated the prosecution's use of the evidence seized.

While we respect the views of the able district judge, we

are mindful that the inevitable discovery doctrine is a doctrine of

last resort. Ideally, it should be invoked only when evidence is

otherwise unlawfully obtained. See Lee, 317 F.3d at 34 & n.3. 

Here, the district court's application of the inevitable discovery

doctrine is problematic and, in any event, the plain view issue is

sufficiently clear that there is no good reason to bypass it. 

Consequently, we exercise our authority to choose a ground of

decision different from that chosen by the court below, see United

For present purposes, we take the facts as recounted above. 1

Although the defendant offered a much different version at the

suppression hearing, the district court rejected his account. On

appeal, the defendant does not challenge this factual finding.

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States v. Sowers, 136 F.3d 24, 28 (1st Cir. 1998), and go directly

to the plain view question.

The defendant's claim of error is grounded in the Fourth

Amendment proscription against "unreasonable searches and

seizures." U.S. Const. amend. IV. He asseverates that Ludovici's

handling of the bill, which antedated any consent, amounted to an

unconstitutional search.

The Fourth Amendment ordinarily requires police officers

to secure a warrant prior to effecting a search or seizure. In the

absence of a warrant, the officers' acts must fall within one of

the exceptions to the warrant requirement. One such exception is

for items in plain view. A police officer, even though he does not

have a search warrant, may seize an object in plain view as long as

he has lawfully reached the vantage point from which he sees the

object, has probable cause to support his seizure of that object,

and has a right of access to the object itself. United States v. 2

Sanchez, 612 F.3d 1, 4-5 (1st Cir. 2010). A challenge to a search

of an object in plain view calls for a slightly different analytic

rubric. When an officer seeks to manipulate an object in plain

sight, the relevant inquiry becomes whether "the 'plain view'

The plain view exception also applies in situations in which 2

officers have a warrant, but the area searched is outside the scope

of the warrant. See Horton v. California, 496 U.S. 128, 140-42

(1990). That branch of the doctrine is not at issue here.

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doctrine would have sustained a seizure of the [object itself]." 

Arizona v. Hicks, 480 U.S. 321, 326 (1987).

In this case, the object in question — the $20 bill — was

visible to the naked eye during a lawful entry into the premises. 

Thus, Ludovici's handling of the bill satisfies the first prong of

the plain view test. His actions also satisfy the third prong of

the test; the bill was out in the open, and his access to it was

unrestricted. The decisive requirement, then, is the second prong:

whether he had probable cause to manipulate the object. See id.

In general terms, probable cause exists when police have

sufficient reason to believe that they have come across evidence of

a crime. Texas v. Brown, 460 U.S. 730, 742 (1983); United States

v. Curzi, 867 F.2d 36, 45 (1st Cir. 1989). "In the 'plain view'

context, this means that probable cause exists when the

incriminating character of [the] object is immediately apparent to

the police." Sanchez, 612 F.3d at 5. The officer need not be

certain of the incriminating character of an object, but, rather,

must have a belief based on a "practical, nontechnical probability"

that the object is evidence of a crime. United States v.

Giannetta, 909 F.2d 571, 579 (1st Cir. 1990) (internal quotation

marks omitted).

The probable cause standard was satisfied here. Even if

we assume, favorably to the defendant, that Ludovici's lifting of

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the bill to eye level constituted a search, he had probable cause 3

to handle the bill. We explain briefly. 

Ludovici immediately identified the bill as his marked

money before lifting it up. This was confirmed by another officer

on the scene, a defense witness, and the defendant himself. In

addition, Ludovici knew that Owens had gone into the apartment and

returned with drugs; that Owens had identified his source by an

initial — "D" — which corresponded to the defendant's first name;

that the defendant, when opening the door, had referred to himself

as "D"; and that the clearly visible denomination of the bill

matched the denomination of the "bait" bill that he had given to

Owens. Moreover, the $20 bill spied by Ludovici stood out; there

is no evidence that any other currency was in sight. The fact that

people usually keep bills of large denominations — such as a $20

bill — in wallets or purses, not simply lying around, adds to the

reasonableness of Ludovici's belief. These facts, taken in the

aggregate, gave rise to a reasonable degree of probability that the

$20 bill, which Ludovici spied on the coffee table, was evidence of

The act of picking up the bill and peering at it may not 3

have constituted a "search" at all. Under Hicks, it is clear that

the Fourth Amendment forbids handling an item to expose something

hidden, but it is far from clear that the Fourth Amendment

prohibits moving an item merely to magnify or confirm something

already visible. See Hicks, 480 U.S. at 325 (stating that "taking

action . . . which exposed to view concealed portions of the

apartment or its contents" constituted a search). Here, neither

party disputes that had Ludovici merely bent over to get a closer

look at the bill without picking it up, there would be no

constitutional infirmity.

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the crime to which Ludovici had just been privy. Its seizure was 4

therefore lawful; the defendant's consent to the ensuing search was

untainted; and the fruits of that search were not subject to

suppression.

B. Sentencing.

The defendant's second claim of error relates to

sentencing. Cognizant that the defendant had one prior felony

conviction for a crime of violence and another for a controlled

substance offense, the district court set his base offense level at

24. See USSG §2K2.1(a)(2). The court then adjusted upward by two

levels for obstruction of justice (premised on a finding that the

defendant had testified falsely during the suppression hearing),

see id. §3C1.1, and by four levels for possession of a firearm in

connection with another felony, see id. §2K2.1(b)(6). Paired with

a criminal history category of VI, the total offense level yielded

a GSR of 168 to 210 months, which exceeded the ten-year statutory

maximum for the offense of conviction. See 18 U.S.C. § 924(a)(2). 

The court proceeded to impose an 84-month incarcerative sentence.

The federal sentencing guidelines are advisory, not

mandatory. See United States v. Booker, 543 U.S. 220, 245 (2005). 

Nevertheless, the GSR remains the conventional starting point for

The defendant points out that there is no evidence that the 4

marked side of the bill was face up when Ludovici first spotted it. 

That is true, but it does not undermine our conclusion that, in the

totality of the circumstances, Ludovici had probable cause to

believe that the bill was his.

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constructing a federal sentence. See United States v. Martin, 520

F.3d 87, 91 (1st Cir. 2008). A sentencing court is obligated to

calculate the GSR correctly, and a defendant may challenge an

incorrect guideline calculation even if the court imposes a

sentence that is below the bottom of the range. See United States

v. Gobbi, 471 F.3d 302, 313 & n.7 (1st Cir. 2006). In evaluating

the correctness of guideline calculations, we review factual

findings for clear error and legal rulings interpreting or applying

the sentencing guidelines de novo. United States v. Pacheco, 489

F.3d 40, 44 (1st Cir. 2007).

In the case at hand, the defendant challenges only a

single aspect of the district court's guideline calculations: the

four-level enhancement under section 2K2.1(b)(6). To warrant such

an adjustment, the sentencing court must supportably find that the

defendant "used or possessed any firearm or ammunition in

connection with another felony offense." USSG §2K2.1(b)(6).

Where, as here, the defendant has been convicted of

unlawfully possessing a firearm, this guideline requires two

subsidiary findings. First, the court must find that the defendant

possessed the firearm "in connection with" another offense. Id.

§2K2.1, comment. (n.14(A)). Second, it must supportably find that

the additional offense is a felony qualifying for the enhancement. 

Id. §2K2.1, comment. (n.14(C)).

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The government has the burden of proving these two

elements by a preponderance of the evidence. United States v.

Damon, 595 F.3d 395, 399 (1st Cir. 2010). The district court

concluded that the government had carried its burden of proving

both that the defendant had committed a qualifying second felony

(possessing and dealing drugs) and that he possessed the seized

firearm "in connection with" that second felony. The defendant

challenges each of these findings.

a. The Other Felony. To begin, the defendant protests

that he was not selling drugs and hails his acquittal on the drug

trafficking charge as the proof of the pudding. This is whistling

past the graveyard. In a criminal case guilt must be proven beyond

a reasonable doubt, but sentencing factors need only be proven by

a preponderance of the evidence. See United States v. Watts, 519

U.S. 148, 156 (1997). Given this dichotomy, a sentencing court may

consider acquitted conduct in determining the applicability vel non

of a sentencing enhancement. See Gobbi, 471 F.3d at 313-14.

Here, moreover, there was sufficient evidence in the

record to support the sentencing court's determination that the

defendant was engaged in felonious drug trafficking. The police

found other drugs in a container near the $20 bill that had just

been used in a drug transaction. Owens testified at trial that he

purchased the crack cocaine from the defendant. The defendant, who

had no verifiable income or assets, routinely paid his expenses,

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presumably including the cost of the drugs that he admitted to

using on a regular basis, in cash. Last, but far from least, the

court was entitled to take into account that the defendant had a

prior felony conviction for distributing crack cocaine. See United

States v. Cannon, 589 F.3d 514, 518-19 (1st Cir. 2009).

We have written before, and today reaffirm, that "[a]

sentencing court is entitled to rely on circumstantial evidence and

draw plausible inferences therefrom." United States v. Marceau,

554 F.3d 24, 32 (1st Cir. 2009) (citations omitted). The court

below had before it both direct and circumstantial evidence of the

defendant's drug dealing. On this record, we cannot say that the

court's determination that the defendant was engaged in drug

dealing was clearly erroneous.5

b. The Connection. The next question is whether the

evidence supports the sentencing court's finding that the defendant

possessed the firearm "in connection with" the discerned drug

trafficking felony. The defendant points out that the gun was not

loaded; that it was locked inside a safe that could not be opened

Although the district court found that the defendant was 5

engaged in both felony drug possession and felony drug trafficking,

we think it advisable to focus on the latter. If the "second

felony" was for drug possession alone, that might affect our

interpretation of the relevant guideline because the critical part

of the application note, by its terms, applies only to "drug

trafficking offense[s]." USSG §2K2.1, comment. (n.14(B)). We

previously have left open the question of whether having a firearm

in connection with a simple drug possession offense is sufficient

to trigger an enhancement under USSG §2K2.1(b)(6), Cannon, 589 F.3d

at 520 n.4, and we have no need to answer that question today.

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without both a key and a combination (and then, only with some

difficulty); that the ammunition was kept separately from the gun;

and that the gun and ammunition were found in a room other than the

room in which the drugs were hidden. Further, he labors to draw an

analogy between this case and the earlier case of United States v.

Ellis, 168 F.3d 558 (1st Cir. 1999). These arguments are

unavailing.

We previously have considered the application of section

2K2.1(b)(6). We first addressed the current language of this

provision in United States v. Brewster, 1 F.3d 51 (1st Cir. 1993).6

Both then and thereafter, we typically have given the phrase "in

connection with" its plain and broad meaning. See id. at 54; see

also United States v. Thompson, 32 F.3d 1, 7 (1st Cir. 1994). We

have stated, for example, that application of the enhancement does

not require either actual use of the weapon during commission of

the felony or physical proximity between the weapon and the

contraband. Thompson, 32 F.3d at 8. Withal, we have recognized

that the coincidental presence of a gun near a crime scene

ordinarily will not suffice to ground the enhancement. See, e.g.,

United States v. Sturtevant, 62 F.3d 33, 34-35 (1st Cir. 1995) (per

curiam) (noting that the guideline would not apply to "an

Prior to 2006, section 2K2.1(b)(6) was part of section

6

2K2.1(b)(5), as reflected in some of our earlier decisions. See,

e.g., Brewster, 1 F.3d at 52 & n.1. For ease of exposition, we

refer to the guideline in its current form.

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accountant who, while forging checks, happens to have a gun in the

desk drawer"). The key question is whether a "sufficient nexus

exists between the weapon and the [additional felony]." Brewster,

1 F.3d at 54. If a firearm "somehow aids or facilitates, or has

the potential to aid or facilitate, the commission of another

offense," application of the guideline is warranted. Thompson, 32

F.3d at 6.

In Brewster, 1 F.3d at 54, we noted the "dearth of

expository comment" illuminating the meaning of "in connection

with." The passage of time has filled this void. In 2006, the

Sentencing Commission provided much-needed guidance about the

meaning of section 2K2.1(b)(6). 

The Commission adopted what is now Application Note 14. 

See USSG §2K2.1, comment. (n.14); Amendments to the Sentencing

Guidelines Effective Nov. 1, 2006, 71 Fed. Reg. 28,063, 28,069-71

(submitted May 15, 2006). The new application note sheds a bright

light on the scope of the phrase "in connection with" and confirms

that the guideline applies when the firearm "facilitate[s], or

ha[s] the potential of facilitating, another felony offense." USSG

§2K2.1, comment. (n.14(A)). Pertinently, the application note adds

a second clarification, explicitly stating that, "in the case of a

drug trafficking offense," there is a sufficient nexus between the

gun and the offense when the "firearm is found in close proximity"

to the drugs. Id. §2K2.1, comment. (n.14(B)) (emphasis supplied).

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The adoption of this application note places a

particularly helpful gloss on section 2K2.1(b)(6) in cases

involving drug trafficking felonies. The application note is

neither inconsistent with, nor an obviously erroneous reading of,

the guideline. We must, therefore, take it fully into account. 

See Stinson v. United States, 508 U.S. 36, 38 (1993); United States

v. Piper, 35 F.3d 611, 617 (1st Cir. 1994).

We read the guideline through the prism of Application

Note 14. We hold that, in a situation in which the additional

felony is drug trafficking, the guideline means that the

enhancement is appropriate whenever the firearm is in close

proximity to the drugs. The commentary explains that this is the 7

proper test because the mere presence of a firearm during a drug

transaction has the potential of facilitating that felony offense. 

See USSG §2K2.1, comment. (n.14(B)).

That ends this aspect of the matter. In this case, the

government established that the defendant had the gun in the same

small single-floor apartment as the bagged cocaine. That is enough

to support a finding of "close proximity." See United States v.

Peterson, 233 F.3d 101, 111 (1st Cir. 2000) (finding "close

Ellis does not alter this conclusion. See 168 F.3d at 563- 7

64. That case involved a different though similar guideline

provision affecting armed career criminals. See USSG

§4B1.4(b)(3)(A). Moreover, the decision predates the Sentencing

Commission's clarification of section 2K2.1(b)(6) and is therefore

inapropos.

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proximity" between drugs and guns located in the same apartment). 

Such a finding makes especially good sense here because the gun was

in the defendant's home in a room near the drug stash and the home

served as the defendant's place of business for carrying out what

the district court supportably found to be drug trafficking

activities. The gun, therefore, had the potential to facilitate

the drug distribution offense "by emboldening the enterprise,

aiding the collection of a drug debt, or in any number of

foreseeable ways." Cannon, 589 F.3d at 519.

In an effort to blunt the force of this reasoning, the

defendant notes that the gun was neither loaded nor readily

accessible. This is true as far as it goes, but it does not take

the defendant very far.

Simply put, the guideline, as clarified by Application

Note 14, dictates that where, as here, the second felony is a drug

trafficking offense, close proximity is all that is required. See,

e.g., United States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009);

United States v. Blankenship, 552 F.3d 703, 704-05 (8th Cir. 2009). 

This makes eminently good sense. An unloaded gun can easily be

loaded and, thus, has the potential to facilitate a drug

trafficking operation. And in all events, a gun need not be loaded

in order to facilitate drug trafficking. See United States v. 8

We hasten to add that in cases other than those involving 8

drug trafficking, facts such as whether a firearm is operable,

whether it is loaded, and whether it is accessible deserve due

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Rhind, 289 F.3d 690, 695 (11th Cir. 2002) (suggesting that

"criminals frequently use unloaded guns to execute crimes").

The short of it is that the defendant kept a gun in close

proximity to a stash of drugs, and the district court supportably

found that he possessed the gun in connection with his activities

as a drug trafficker. That finding was not clearly erroneous and,

for that reason, the application of the four-level enhancement

under section 2K2.1(b)(6) was appropriate.

III. CONCLUSION

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

we affirm the defendant's conviction and sentence.

Affirmed.

consideration in deciding whether a gun is possessed "in connection

with" a crime. See, e.g., United States v. Guiheen, 594 F.3d 589,

591-92 (8th Cir. 2010). But even then, such factors, by

themselves, are not dispositive.

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