This is an appeal from a judgment of the United States District Court for the Southern District of New York, Inzer B. Wyatt, J, denying appellant’s motion to suppress evidence seized pursuant to a warrantless search, and revoking appellant’s probation and sentencing him to a total of twenty-five years’ imprisonment. For the reasons stated below, we affirm the denial of appellant’s motion to suppress and the district court’s revocation of appellant’s probation. However, because we believe that in imposing sentence the district court may have based its sentence upon improper considerations, we vacate the sentence imposed and remand for resentencing.
BACKGROUND
On June 22, 1983, appellant Edward Trzaska was convicted on seven counts of illegal receipt of firearms, in violation of 18 U.S.C. § 922(h)(1). On September 7, 1983, the district judge sentenced Trzaska to concurrent three-year terms of imprisonment on Counts One and Two. The court suspended imposition of sentence on Counts Three through Seven and imposed concurrent five-year terms of probation on each count. The judgment of conviction subsequently was affirmed by this Court in a memorandum order dated February 17, 1984.
See United States v. Trzaska,
The district judge thereafter reduced the term оf imprisonment to two years, pursuant to a Rule 35 motion, but did not alter the terms of probation. At the original sentencing and again when the sentence was reduced, the court specifically made it a special condition of probation thаt appellant not “possess or obtain, in any way, firearms” during the probationary period.
On October 12,1987, acting on a tip from appellant’s estranged wife, Nassau county police officers conducted a warrantless search of appellant’s apartment and seized nineteen weapons. Just prior to the search, the police had obtained the consent of appellant’s wife to search the apartment. Although Mrs. Trzaska and her children had moved out of the apartment two weeks earlier, she still possessed an entrance key. She agreed to accompany the police to the apartment and she allowed them to enter. While Mrs. Trzaska collected a few of her children’s bеlongings, the police conducted a search of the apartment. Based on the fruits of this search, a violation of probation charge was filed.
On November 24, 1987, the district court held a hearing on the violation of probation charge. At thаt hearing, counsel for appellant moved to suppress the weapons seized at appellant’s home on October 12th. At the conclusion of the hearing, the court revoked Trzaska’s probation, finding that Trzaska had possessed weapons in violation of the special condition of probation which had been imposed concerning firearms. With respect to the suppression motion, the court found that there had been a “valid consent to [the] search,” and thus denied the motion.
At appellant’s sentencing hearing on December 10, 1987, the district judge noted that appellant had “blighted” the lives of several women, and that he had fathered numerous children over the years. The judge commented: “I raise these matters because it seems to me, with all the leniency that has been shown to Mr. Trzaska over these last several years, he has to be removed from society to eliminate the danger that he poses to women and the danger to society he poses in fathering numerous children.” The judge then vacated the suspension of the imposition of appellant’s sentence on Counts Three through Seven, and *1120 ordered that appellant serve five consecutive terms of five years’ imprisonmеnt on each count.
On appeal, Trzaska contends that the district court erred in denying his motion to suppress the nineteen firearms found in the apartment on October 12, 1987, and also that the court relied on a constitutionally impermissible factor in sentencing him-. Appellant also contends that the court violated Fed.R.Crim.P. 32(a)(1) by failing to determine whether he and his defense counsel had an opportunity to read and discuss the presentence investigation report prior to sentencing. Fоr the reasons stated below, we affirm the denial of appellant’s suppression motion and the revocation of Trzaska’s probation. However, because we believe that appellant has raised valid objections with respеct to his sentencing by the district court, we vacate the sentence imposed and remand for resen-tencing.
DISCUSSION
A. The Suppression Motion
On appeal, Trzaska urges two reasons why the firearms seized from his apartment should have been suppressed. First, appellant сontends that the third party consent to search given by his estranged wife was not voluntary on her part, and that it was the product of a coercive interrogation by Nassau County Police. In the alternative, appellant argues that his wife did not have the authority to consent to the search of his apartment because she was no longer living with him, and had ceased to have “mutual use” or “common authority” over the premises searched. We first consider whether the third party consent to sеarch was valid in this case.
In
Matlock v. United States,
Appellant argues in this case that although the third party who consented to the search was his wife, she did not have adequate authority to consent because she was no longer living with him, and because her desire to pick up a few personal belongings while at the apartment was insufficient evidence of “mutual use.” While it is true that the burden is on the prosecution to prove adequate authority by a preponderance of the evidence in third party consent cases,
see Matlock,
We next consider appellant’s contention that Mrs. Trzaska’s consent was involuntary because Nassau County Pоlice ob
*1121
tained her signature on a consent-to-search form by interrogating her in a coercive environment and by suggesting to her that she could be prosecuted if she did not sign the consent form. While it is true that consent obtained under such circumstances could be considered involuntary as a matter of law, the threshold determination as to whether such circumstances existed at the time of consent is a question of fact for the district court.
See United States v. Ramirez-Cifuentes,
Finding himself confronted with two different versions of how Mrs. Trzaska’s consent was obtained, the district judge had to base his determination as to the voluntariness of her consent primarily upon his in-court assessment of the credibility of the witnesses, which in turn depended substantially upon his judgment of the witnesses’ demeаnor. Since there was clearly sufficient evidence to support the district judge’s finding, we may not conclude that his assessments regarding credibility were clearly erroneous.
See United States v. Zapata-Tamallo,
B. Propriety of Sentencing
With respect to the sentencing issues raised herein, the government favors remand of the case for clarification of sentencing; the appellant urges us to vacate the sentence and to remand for plenary resentencing. The government has appropriately conceded that it would be constitutional error for a court to consider the number of children fathered by a criminal defеndant in imposing sentence. The government has also largely conceded that the record is ambiguous with respect to whether the district court ascertained that appellant and his counsel examined the pre-sentence investigation report prior to Trzaska’s sentencing. Although the government argues that neither of these possible errors mandates resentencing, we agree with appellant that there is enough room for doubt as to the propriety of the sentencе to justify vacating the sentence and remanding for resentencing. Accordingly, in light of the court’s inappropriate consideration of appellant’s fertile proclivities, and in light of the ambiguity in the record as to whether the district court complied with the requirements of Fed.R. Crim.P. 32(a)(1), we vacate Trzaska’s sentence, and remand to the district court for plenary resentencing.
We do not believe, however, as appellant argues, that the case should be remanded to a different judgе. A review of the minutes of the December 10, 1987 hearing in which the district judge sentenced appellant reveals that the judge had sufficient legitimate reasons to impose the sentence that he did. Moreover, prior to appellant’s violation of the special condition of his probation relating to firearms, the district judge had shown considerable leniency towards the defendant. Therefore, because we believe that there has been no showing that the sentencing judge’s “fairness or the appearance of the judge’s fairness is seriously in doubt,”
United States v. Bradley,
CONCLUSION
The judgment of the district court denying appellant’s motion to suppress and rеvoking appellant’s probation is affirmed. However, in light of the concerns expressed by both parties as to the propriety of the district court’s sentencing, we vacate the sentence as imposed, and remand for plenary resentencing in accordance with this opinion.