Escalante

MEMORANDUM *

Appellant Danny Noe Escalante appeals his conviction and sentence for possession of an unregistered firearm in violation of 26 U.S.C. § 5861 (d). He argues that (i) the district court erroneously denied his . motion to suppress evidence obtained dur *636 ing an illegal protective sweep; (ii) the district court erroneously granted the Government’s motion in limine to preclude his affirmative defense of justification; and (iii) the Government breached the plea agreement. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand for resentenc-ing.

1. Escalante fails to establish that the protective sweep was unlawful under Maryland v. Buie, 494 U.S. 325, 327 , 110 S.Ct. 1093 , 108 L.Ed.2d 276 (1990). After reviewing the record in its entirety, we cannot say that the district court clearly erred when it concluded that the circumstances presented to the officers constituted an emergency situation in which the officers possessed a reasonable belief based on articulable facts that the residence posed a danger to those on the arrest scene, thus justifying a warrantless entry to conduct a protective sweep. See United States v.…

concurring.

I concur in the disposition, except that I do not believe the circumstances permitted a lawful “protective sweep.” There was no basis whatever for believing that any confederate of Escalante’s was in the house. Had there been no actual gunshot, only the threat of one, there would have been no valid basis for police entry into the house. Under the emergency doctrine, however, the gunshot in the vicinity of the house provided sufficient basis to go inside the house to investigate the possible emergency created by the shot.