In this case, defendant-appellant Christopher Martins challenges the district court’s denial of his motion to suppress the critical evidence used to convict him. His appeal raises novel questions related to (i) the contours of the “emergency aid” branch of the exigent circumstances doctrine and (ii) the authority of law enforcement officers to conduct a protective sweep following a warrantless but lawful entry into a private residence. After answering these and other questions, we affirm the defendant’s conviction and sentence.
I. BACKGROUND
Given the principal focus of this appeal, we glean the facts, as supportably found by the district court, from the record of the suppression hearing. We supplement those facts, as necessary, with other facts contained in the record. Once the stage is set, we map the travel of the case.
A. The Facts.
On the evening of February 10, 2002, Sergeant Detective Daniel Linskey responded to a radio call from an anti-gang unit about a shooting at the corner of Wendover and Dudley Streets in Boston’s Roxbury section. Upon his arrival, he discovered a victim nursing a gunshot wound. The wounded man could not provide any useful information about the shooting.
A bystander informed Linskey that there was a second victim up the street. Linskey proceeded north on Wendover Street for about 100 yards. Another bystander directed him to an apartment building. Linskey entered the structure’s first-floor common area and saw a man he knew as “Fats” sitting in a kitchen chair outside Apartment No. 1. The area was otherwise devoid of furniture. Linskey asked Fats, who was bleeding from a gunshot wound to the leg, where he had gotten the chair. Fats replied that he had received it from “his boy” inside Apartment No. 1.
At that juncture, Linskey approached the exterior door of the apartment. He immediately noticed a strong odor of marijuana wafting from within. He knocked on the door and an adult male voice asked him to identify himself. Linskey replied that he was a police officer and asked to speak with the occupant. He next heard voices and the sound of movement coming from within the apartment. This was followed by utter silence.
After ninety seconds or so, Linskey knocked again and asked to speak with the occupant. A young boy (perhaps eleven or twelve years old) opened the door and stepped back into the foyer of the apartment. The interior was poorly lit, but Linskey noticed marijuana smoke drifting through the air. He asked the youth whether his parents were home or whether anyone else was in the unit. The boy responded in the negative. His voice was markedly different from the voice that had originally spoken to Linskey from behind the closed door.
Linskey then stepped into the apartment and spied an even younger girl watching television in a bedroom. When he was three or four feet inside the threshold, he heard yelling from outside. This proved to be the defendant, who entered the apartment by way of the common hallway. The defendant asked what Linskey was doing there and Linskey replied that he was investigating a shooting. Adverting to the marijuana smoke, Linskey asked whether anyone was in the apartment with the children. The defendant said that he was in charge and that nobody else was present.
*145 By that time, several other officers had arrived at the scene and gathered in the common hallway. Linskey ordered them to undertake a protective sweep of the premises to ascertain whether the adult who originally had answered Linskey’s knock was still there. During the suppression hearing, Linskey testified that he ordered the sweep for a variety of reasons, including the location of one of the shooting victims immediately outside the apartment, the marijuana smoke within, and the presence of young, apparently unsupervised children. The principal impetus for his decision, however, was that he had heard an older man speak from within the apartment, yet both the youngster who answered the door and the defendant insisted that no one else was there. Linskey indicated that he was not sure who this other man was, what involvement he may have had with the shootings, or even whether the defendant was aware that someone might have entered the apartment. Given these manifold uncertainties, Linskey was concerned for the safety of everyone involved.
The sweep quickly bore fruit. In a bedroom, Linskey discovered José DeVeiga sitting on a bed, wrapped in a cloud of marijuana smoke. DeVeiga seemed to be under the influence of drugs. Linskey patted DeVeiga down, found no weapons, and asked where the marijuana was stashed. When DeVeiga denied having any marijuana, an incredulous Linskey remarked the thick marijuana smoke filling the room.
At that point, the defendant volunteered that he had been smoking marijuana and called Linskey’s attention to two marijuana roaches in an ashtray on the floor. Lins-key told the defendant that the cold roaches could not have been the source of the billowing smoke. He then announced that he would obtain a search warrant in an effort to locate the marijuana and instructed other officers to “freeze” the apartment. He thereupon arrested both DeVei-ga and the defendant for possession of marijuana and placed the two children in a relative’s care.
The police rapidly obtained and executed a search warrant for the premises. The ensuing search retrieved, inter alia, handgun and rifle ammunition, as well as a Pyrex dish containing crack cocaine residue.
B. Travel of the Case.
On June 11, 2003, a federal grand jury in the District of Massachusetts indicted the defendant on charges of (i) being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) and (ii) possessing cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The defendant moved to suppress the evidence found in the apartment on Fourth Amendment grounds. He contended that the warrantless entry was neither consensual nor justified by exigent circumstances and that the protective sweep was unlawful.
The government opposed the motion and, on October 27, 2003, the district court convened a suppression hearing. Only Linskey testified. The court deemed his account credible in all relevant respects. It then made a series of findings. We summarize them.
• The child’s actions at the threshold did not indicate either explicit or implicit consent to enter.
• Exigent circumstances authorized Linskey to enter; he had reasonable cause to fear for the safety of the boy, given the ongoing drug crime and the possibility that he was unattended or that one or more adults who were participating in that crime were present in the apartment.
*146 • The totality of the circumstances afforded Linskey a basis for reasonable suspicion that someone in the apartment posed a danger to him or to others and, thus, justified a protective sweep. The apartment was in a high-crime area; there had been a recent shooting nearby and it was reasonable to infer that the shooting was gang-related; and Fats might well have been allied with a gang, so that his retreat to Apartment No. 1 might have represented a retreat to a place where his confederates resided.
On the basis of these findings, the court denied the motion to suppress.
The case culminated in a four-day trial. The jury convicted on both counts. The district court held the disposition hearing on March 25, 2004. At that session, the court, relying on the presentence investigation report (PSI Report), found that the defendant was a career offender. See USSG § 4B1.1. The defendant unsuccessfully objected to this designation. The court calculated the guideline sentencing range to be 210-262 months.
The prosecution sought a sentence at the midpoint of that range, whereas the defendant sought a downward departure on the ground that his criminal history category substantially overrepresented the seriousness of his prior criminality. The court agreed with the overrepresentation claim, but weighed the overrepresentation against a number of aggravating factors present in the crimes of conviction and refused to depart downward. When all was said and done, the court imposed a 210-month incarcerative term. This appeal followed.
II. DISCUSSION
The defendant’s asseverational array includes Fourth Amendment challenges to both the initial entry into his apartment and the subsequent protective sweep; objections to his sentence; and a complaint anent ineffective assistance of counsel. We address these three categories of claims sequentially.
A. The Fourth Amendment Claims.
Both aspects of the defendant’s Fourth Amendment challenge involve mixed questions of fact and law. Consequently, we assay the district court’s factual findings for clear error and then review de novo its ultimate conclusion that the discerned facts constitute a sufficient legal basis to justify the conduct about which the defendant complains.
See United States v. Schaefer,
1.
Warrantless Entry.
It is a bedrock principle that the prophylaxis of the Fourth Amendment is at its zenith with respect to an individual’s home.
See Kyllo v. United States,
The
Hegarty
list is not an exclusive compendium, and the government’s principal argument here invokes another species of exigent circumstances: the emergency aid doctrine.
See Mincey v. Arizona,
Under this doctrine the police, in an emergency situation, may enter a residence without a warrant if they reasonably believe that swift action is required to safeguard life or prevent serious harm. See id. To rely upon the doctrine, the government must show a reasonable basis, approximating probable cause, both for the officers’ belief that an emergency exists and for linking the perceived emergency with the area or place into which they propose to intrude. Id. The requisite inquiry must be undertaken in light of the totality of the circumstances confronting the officers, including, in many cases, a need for an on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences. See id.
In applying this yardstick in the case at hand, we survey the objective facts known to Linskey in the time frame leading up to his entry.
See Tibolt,
Either way, the child was present in the midst of an ongoing crime (marijuana use) and was exposed to toxic smoke, placing his welfare at risk. The officer would have been remiss had he eschewed any attempt to ameliorate the boy’s plight. Because this parlous state of affairs gave Linskey ample cause to believe that the boy needed emergency assistance, it justified his entry. See 3 Wayne R. LaFave, Search and Seizure § 6.6(a) (4th ed.2004) (stating that warrantless “entry for the purpose of rendering aid is reasonable ... [in order] to assist unattended small children”) (collecting cases).
This holding is within the mainstream of Fourth Amendment jurisprudence. Other courts have found exigent circumstances in similar situations. In
United States v. Bradley,
So too
United States v. Hughes,
The defendant seeks to debunk the reasonableness of Linskey’s belief that the boy was in need of emergency assistance. He points to several cases in which risk to children was found not to amount to exigent circumstances.
See, e.g., Roska ex rel. Roska v. Peterson,
The defendant makes a last-ditch effort to blunt the force of this conclusion: he suggests that the exigency was manufactured by the police and, thus, cannot justify their warrantless entry. While we agree that law enforcement officers may not manipulate events to create an emergency and bootstrap that invented emergency into a justification for a warrantless entry of a person’s home,
see United
*149
States v. Curzi
We rest this holding on two grounds. In the first place, the defendant’s “manufactured evidence” argument is made for the first time on appeal. It is, therefore, forfeited.
See B & T Masonry Constr. Co. v. Pub. Serv. Mutual Ins. Co.,
That ends this aspect of the matter. We hold that notwithstanding the absence of a warrant, the officer’s entry into the defendant’s apartment was justified by exigent circumstances. 3
2.
The Protective Sweep.
The defendant’s remaining Fourth Amendment plaint focuses on the legality vel non of the protective sweep that the officers conducted after entering the apartment. The baseline rule is that police officers, in conjunction with an arrest on residential premises, may undertake a protective sweep so long as they can point to “articu-lable facts which, taken together with the rational inferences from those facts,” would warrant a reasonably prudent officer in believing “that the area harbor[s] an individual posing a danger.”
Maryland v. Buie,
Reasonable suspicion is an objective standard; its existence “centers upon the objective significance of the particular facts under all the circumstances.”
United States v. Woodrum,
The scope of a protective sweep is limited: the doctrine allows only a “cursory inspection of those spaces where a person may be found.”
Buie,
Although
Buie
itself speaks of protective sweeps incident to arrest, this court has employed the doctrine to allow protective sweeps in conjunction with the execution of search warrants.
See Drohan v. Vaughn,
Beyond his general objection to the availability of the protective sweep doctrine in the case of entries premised on exigent circumstances, the defendant also asserts that the protective sweep undertaken in this case transgressed the Fourth Amendment because the police did not have reasonable suspicion to believe that someone in the apartment posed a danger. In this regard, he contends that the only real basis for suspecting danger was the apartment’s location in a high-crime plagued by gang activity.
If this were so, the defendant’s point would be well-taken; mere presence in a high-crime area, without more, is insufficient to meet the reasonable suspicion benchmark.
See Illinois v. Wardlow,
The shootings, in which two men were wounded, had occurred within 100 yards of the apartment complex. Moreover, the apartment was tied to the shootings because one of the victims, not a resident of the apartment, had retreated there. The police knew from experience that victims in gang-area shootings often were gang members themselves and tended to congregate with other gang members. 4 Cf. William Turner, Rescuing of the Romish Fox (1545) (“Birds of a feather flock together.”). Given these facts, the inference of danger was much more real and immediate than a generic fear of what might happen in a high-crime area.
Then, too, the officer knew that there was a distinct possibility that a man was hiding inside the apartment. That possibility, in itself, elevated the level of suspicion.
Cf. Wardlow,
Taking these facts in the ensemble — the high-crime area, the shootings, their connection with the apartment, the officer’s experience and knowledge anent gang behavior, the evasive action of the adult known to be present behind the door, and the seeming attempt to misinform — we find them sufficient to ground a reasonable suspicion that the unknown adult posed a threat to the officers on the scene. That suspicion justified the protective sweep.
B. The Sentencing Claims.
The defendant launches a two-pronged attack on his sentence. He argues both that his classification as a career offender was erroneous and that his sentence, viewed in light of the Supreme Court’s recent decision in
United States v. Booker,
— U.S. —,
1. Career Offender Status. In order to qualify as a career offender, a defendant must have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG § 4Bl.l(a). Even when a defendant has two prior felony convictions, however, the sentencing court must count them as a single prior felony if they are “related.” Id. §§ 4A1.2(a)(2), 4B1.2(c)(2). Prior convictions are considered related if they “were consolidated for trial or sentencing.” Id. § 4A1.2, cmt. n. 3(C).
At the time of his conviction in this case, the defendant had prior felony convictions for assault and battery on a police officer and assault with a dangerous weapon (both violent crimes). The underlying offenses occurred several months apart (one on November 2, 2000 and the other on May 29, 2001). The defendant nonetheless strives to convince us that they are related because the same state court judge disposed of both charges on the same day during the same hearing. We are not persuaded.
We need not tarry. This question is controlled by our decision in
United States v. Correa,
offenses that are temporally and factually distinct (that is, offenses which occurred on different dates and which did not arise out of the same course of conduct), charges based thereon should not be regarded as having been consolidated (and, therefore, ‘related’) unless the original sentencing court entered an actual order of consolidation or there is some other persuasive indicium of formal consolidation apparent on the face of the record which is sufficient to indicate that the offenses have some relationship to one another beyond the sheer fortuity that sentence was imposed by the same judge at the same time.
Id. at 317.
In the district court’s view, the defendant’s two prior offenses were temporally *152 and factually distinct and the record contained no evidence of formal consolidation. Consequently, the court followed Correa and ruled that the offenses were not related. The defendant assigns error, insisting that the state court record indicates that a “functional consolidation” had occurred.
This harangue is flatly inconsistent with our holding in Correa. There, we held that, for guideline purposes, “consolidation” requires more than common disposition. Id. at 317. The critical datum, we said, is whether the record of the earlier sentencing^) shows any indicia of formal consolidation, the existence of which would establish the necessary nexus between the charges. Id. at 317-18. Because the defendant does not identify either a formal order of consolidation or any other persuasive indicium of formal consolidation (such as a docket entry), his attempt to treat these two distinct offenses as one necessarily fails.
2. Booker Error. We turn next to the defendant’s claim that Booker error tainted his sentence. This claim is cast in two forms.
The first iteration need not detain us. The defendant asseverates that the Sixth Amendment, as interpreted by
Booker,
was violated when a judge and not a jury determined the ‘Tact” that his prior convictions were not related. Assuming arguendo that relatedness might be a fact that a judge could not determine pursuant to a mandatory guidelines system — a dubious proposition at best — the defendant’s asseveration nonetheless must fail. Our holding in
United States v. Antonakopoulos,
The second iteration of the defendant’s sentencing argument embodies a conventional Booker claim. That such an error occurred cannot be gainsaid; the district court, acting before the Supreme Court decided Booker, understandably treated the guidelines as mandatory. In reviewing this error, the threshold question is whether it was preserved below.
The defendant proffers two reasons why we should deem the error preserved: (i) he argued in the lower court that the guideline provision permitting a downward adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1, constituted an unconstitutional burden on his Sixth Amendment right to a jury trial; and (ii) the district court mused, sua sponte, that there were no
Apprendi
issues involved in the sentencing.
See Apprendi v. New Jersey,
In light of the unexpected nature of
Booker’s
holding that the sentencing guidelines must be treated as advisory, we have been fairly liberal in determining what sorts of arguments sufficed to preserve claims of
Booker
error in
pre-Booker
cases.
See, e.g., United States v. Heldeman,
*153
Although the language in
Antonakopou-los
is broad, it cannot be dislodged from its contextual moorings. The cases leading up to
Booker
dealt with the notion that the Sixth Amendment required jurors to determine facts that were necessary to the imposition of a certain sentence.
See Booker,
The
Antonakopoulos
formulation for the preservation of claims of
Booker
error must be read against this background.
See Antonakopoulos,
The defendant’s alternate proffer fares no better. He cites
United States v. Paradis,
In that case, the government failed to argue explicitly that a police officer’s war-rantless search was justified by the protective sweep doctrine. Id. at 28. The government had, however, cited a case in its brief that discussed the doctrine. Id. at 28 n. 6. We explained that, ordinarily, a bare citation would be insufficient to preserve an issue for appellate review but deemed the error preserved nonetheless because the district court had pounced on the citation and incorporated the cited case’s discussion of the protective sweep doctrine into its ruling. Id. at 28-29 & n. 6. Parad-is thus stands for the proposition that an issue suggested by a party but insufficiently developed is nonetheless preserved for appeal when the trial court, on its own initiative, seizes the issue and makes an express ruling on its merits.
Paradis is plainly inapposite here. During the sentencing hearing, the district judge made a prescient observation about the applicability of Apprendi to determinate sentencing schemes, but noted that his concern had no application to the case at hand. That rumination formed no part of the court’s rulings or holdings, and it would blink reality were we to allow the defendant to piggyback upon the court’s off-hand comment, promoted by neither party, and use it as a means of “preserving” his claim of Booker error. We conclude, therefore, that the defendant’s claim of Booker error was not preserved.
Forfeited
Booker
errors engender plain-error review.
See United States v. Vega Molina,
In order to prove that a
Booker
error affected a defendant’s substantial rights, the defendant must show a reasonable probability that he would have received a more lenient sentence under an advisory guidelines regime.
González-Mercado,
We find the defendant’s reliance misplaced. Nearly all the factors to which he alludes were limned in the PSI Report, yet the district court chose not to speak to them at sentencing. The inference is that the court was unimpressed.
See United States v. Figuereo,
The only new information proffered at the appellate level — an affidavit recounting the alleged sexual abuse of two of the defendant’s siblings by another family member — seems to be in direct contradiction of his statement to the probation officer that there was no history of abuse in the family. Even in the roiled wake of Booker, we are reluctant to allow a party to profit by a calculated repudiation of a prior version of events solemnly given to a probation officer and submitted to the district court.
By way of explanation, the defendant’s able appellate counsel makes a plausible argument that this chapter in the defendant’s past was shameful to him and, thus, he did not express it given the apparent uselessness of such information for sentencing purposes. But even were we to assume arguendo that this new information is properly before us, other circumstances would stymie the defendant’s efforts to justify resentencing on this basis. The district court found the defendant eligible for a downward departure based on the fact that his criminal history score substantially overstated the seriousness of his prior criminality. Yet the court declined to depart, stating:
[T]he record ... is that of a young man who is deeply, deeply engaged both in dealing illicit drugs, in a variety of thefts, which it appears have a significant relationship to gaining, possessing, or the threat of using firearms. And so I think you’re very dangerous. And for that reason, though your prior convictions ... would allow me to depart downward, the most that I think is just is to go [to the bottom of the guideline sentencing range].
This passage makes clear that, despite its grave concern about the fairness of the sentencing guidelines in general — a concern that pops up repeatedly throughout the transcript of the disposition hearing— the court deemed a 210-month sentence just. Given this frank evaluation of the sentence, we do not believe there is a reasonable probability that the court would have imposed a lesser sentence had it been operating under an advisory guideline system.
Cf. Antonakopoulos,
*155 C. The Ineffective Assistance of Counsel Claim.
Last — and, as it turns out, least— the defendant posits that he was denied the effective assistance of counsel, implying that his trial attorney erred in not arguing manufactured exigency at the suppression hearing and flatly stating that his lawyer blundered in failing to explore the possibility of a conditional guilty plea under Fed.R.Crim.P. 11(a)(2). 5
Establishing ineffective assistance of counsel “requires a showing that the [defense] attorney turned in a constitutionally deficient performance that prejudiced the defendant’s substantial rights.”
United States v. Moran,
The defendant cannot elude the grasp of this line of authority. It would serve no useful purpose to rehash the precise details of his theory. Suffice it to say that the theory presupposes that an accused with little chance of acquittal and a weak but colorable argument for suppression is invariably better served by a conditional guilty plea. That is a fallacious premise. Every case is different, and every lawyer knows (or ought to know) the dangers of broad generalization. Without a fact-specific inquiry into defense counsel’s thinking (strategic and tactical) and a knowledge of what exchanges occurred between counsel and client, any decision we might make on the performance prong of the ineffective assistance test would be inherently speculative. We therefore decline to pass upon the defendant’s ineffective assistance of counsel claim without the benefit of a fully developed record. Hence, that claim is premature, and we deny it without prejudice to its subsequent reincarnation, should the defendant so elect, in a post-conviction proceeding brought pursuant to 28 U.S.C. § 2255.
III. CONCLUSION
We need go no further. To recapitulate, we conclude that the police lawfully entered the defendant’s abode pursuant to the emergency aid branch of the exigent circumstances doctrine; that they lawfully undertook a protective sweep of the premises following their entry; and that, therefore, the district court did not err in refusing to suppress the evidence seized from within the apartment. We also conclude that the district court appropriately classified the defendant as a career offender and committed no reversible error in the course of sentencing him. Finally, we conclude that the defendant’s ineffective assistance of counsel claim is premature and must be dismissed, without prejudice, on that ground.
The defendant’s conviction and sentence are affirmed.
Notes
. Our opinion in
Beaudoin
disposed of the appeals of two defendants. The Supreme Court denied certiorari in Beaudoin's case, but vacated his codefendant’s sentence in light of its decision in
United States v. Booker,
— U.S. —,
. The defendant argues that Linskey entered the apartment before the boy stated that he was home alone. To bolster this argument, he points to inconclusive and ambiguous snippets culled from Linskey's testimony. But the district court found otherwise, and that finding was not clearly erroneous.
See Cumpiano v. Banco Santander P.R.,
. This holding makes it unnecessary to consider the government’s argument that the district court clearly erred in finding that the child did not consent to Linskey’s entry.
. In conducting a reasonable suspicion inquiry, courts should recognize that veteran law enforcement officers, like Sergeant Linskey, are entitled to rely on their experience.
See Terry,
. If such, a plea could have been negotiated, it would have preserved the defendant's right to appeal the denial of his suppression motion while positioning him to secure a credit for acceptance of responsibility (which presumably would have resulted in a lower sentence).