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United States v. Waters

United States Court of Appeals, Eighth Circuit

February 28, 2018

United States of America, Plaintiff- Appellee,
Arthur Waters, Defendant-Appellant.

          Submitted: November 16, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before COLLOTON and GRUENDER, Circuit Judges, and READE, [1] District Judge.

          PER CURIAM.

         Arthur Waters entered a conditional plea of guilty to one count of unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court[2] sentenced Waters to 87 months' imprisonment, followed by three years of supervised release. On appeal, Waters challenges the district court's order denying his motion to suppress evidence seized during a search of his residence while executing an arrest warrant. Waters also challenges his subsequent sentence as substantively unreasonable. We affirm.


         On September 3, 2015, officers from the Kansas City, Missouri Police Department obtained information that Waters was residing with his fiancée, Dannaica James, and two children at 2202 Monroe, Kansas City, Missouri. Waters had outstanding warrants for his arrest. Officers surveilled the residence. That same day, officers stopped the vehicle of an individual known to associate with Waters. The individual identified a photo of Waters and stated that Waters was his source for illegal drugs. The individual made a controlled call to Waters, during which Waters stated that he was at the residence, he would be there for awhile and had what the individual was requesting.

         Several hours after the controlled call, officers observed James leaving the residence. James left the residence, walked a short distance, stopped and went back to the residence. James knocked on the door and someone inside opened the door. James then entered the residence and left again approximately thirty seconds later. After James entered her vehicle, which was located twenty to thirty yards from the residence, officers detained her at that location. She informed officers that Waters was inside the residence and that no one else was present.

         Officers subsequently surrounded the residence, prepared to forcibly enter if necessary. James called Waters to inform him that officers were outside waiting for him and asked him to come to the door. Waters told James to "hold on." As officers approached, they observed window blinds move on the second floor of the south side of the residence. Approximately thirty seconds later, officers observed window blinds move on the first floor near the west side of the residence. Specifically, it appeared that someone had pulled down a blind to look outside.

         Detective Michael Miller knocked, announced the officers' presence and instructed Waters to come outside. Officers announced their presence several times. They did not receive a response. Ultimately, a sergeant authorized entry into the residence. Officers forcibly breached the back door, which opened into a utility room. Officers moved through the utility room into the kitchen and heard Waters state that he was "coming down, " presumably from the second floor. The stairway was not visible from the kitchen. Officers encountered Waters in the living room, which was adjacent to the kitchen, and directed him into the kitchen. Officers took Waters into custody. He was handcuffed, searched for weapons and eventually removed from the residence.

         Officers conducted a protective sweep of the first floor to check for individuals who might pose a threat to their safety. Officers observed marijuana and related paraphernalia in plain view in the living room. Officers observed a large couch situated against a wall in the living room. The couch was flanked by two end tables approximately a foot away. The bottom of the couch was about half the width of a dollar bill off the floor.

         In the living room, Deputy United States Marshal Jason Roberts bumped the couch with his hip to determine the weight of the couch. The force slid the couch on the tile floor. Deputy Roberts then pushed one side of the couch away from the wall to see if anyone was hiding behind or inside it. He observed part of a firearm on the floor underneath the couch. The firearm was lying just over one tile square away from the wall.

         A grand jury charged Waters with one count of possession of a firearm as a previously convicted felon. Waters moved to suppress all evidence obtained as a result of the protective sweep of the residence. The district court ruled that the sweep was lawful pursuant to Maryland v. Buie, 494 U.S. 325 (1990). Waters entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2), reserving the right to appeal the denial of his motion to suppress.

         At sentencing, Waters's total adjusted offense level was 17 and he had a criminal history category of IV, resulting in a Guidelines range of 37 to 46 months' imprisonment. After considering the factors at 18 U.S.C. § 3553(a), the ...

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