Beruflich Dokumente
Kultur Dokumente
No. 06-4922
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:06-cr-00042-REP)
Argued:
November 2, 2007
Decided:
Before NIEMEYER and KING, Circuit Judges, and James A. BEATY, Jr.,
Chief United States District Judge for the Middle District of North
Carolina, sitting by designation.
On appeal,
enhancing
his
sentence
for
possession
of
firearm
in
Finding no error, we
affirm.
I.
On December 8, 2005, law enforcement officers with the Central
Virginia
Narcotics
Task
Force
obtained
warrant
to
search
in
Richmond,
Virginia.
Pursuant
to
the
search,
officers
located
in
Defendants
dresser
drawer,
additional
on
another
dresser
in
the
bedroom
and
contained
numbers
as
being
money
used
earlier
that
day
by
law
The
to
the
affidavit,
after
meeting
with
Mr.
Partin,
After the
stopped by police, at which time he had only $100 of the prerecorded bills remaining in his possession. The affidavit detailed
all of this information in seven single-spaced paragraphs, and
noted that each of the controlled purchases with Mr. Partin was
completed under direct police control and supervision.
Based on
the district court concluded that the events of May 18, July 13
and
December
all
corroborate
and
reinforce
each
other
and
Defendant also argued that the affidavit falsely stated that after
the controlled buy on December 8, Mr. Partin proceeded directly
to 5600 Petoskey Avenue, when in fact Mr. Partin reentered the fast
food restaurant where he had been eating in order to get his female
companion before proceeding to 5600 Petoskey Avenue. However, with
respect to this contention, the district court concluded that no
hearing was warranted on this issue because Defendant had not made
a preliminary showing that any information (or omission) in the
affidavit
was
false,
or
that
any
information
was
included
sentence
should
be
enhanced
pursuant
to
section
II.
We consider first Defendants challenge to the denial of his
pretrial Motion to Suppress.
his
residence.
Defendant
further
contends
that
the
Each of these
A.
Defendant contends first that the search of his apartment was
unconstitutional because the search warrant was not supported by
probable cause.
United States v.
Blackwood, 913 F.2d 139 (4th Cir. 1990). Thus, although our review
of legal questions is de novo, we are not to conduct a de novo
determination of probable cause, but only to determine whether
there
is
substantial
evidence
in
the
record
supporting
the
Massachusetts v.
Upton, 466 U.S. 727, 728 (1984); see also Illinois v. Gates, 462
U.S. 213 (1983). This already deferential review is further guided
by the recognition that the probable cause standard is a fluid
concept - turning on the assessment of probabilities in particular
factual contexts - not readily, or even usefully, reduced to a neat
set of legal rules.
Moreover, [b]ecause
invalidate
warrant[s]
by
interpreting
affidavit[s]
F.2d
at
142
(quoting
Gates,
462
U.S.
at
236
in
Blackwood,
(internal
quotations omitted)).
The magistrate reviewing the warrant application is required
simply to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.
Id.
This nexus
See id.
marijuana from Mr. Partin on May 18, 2005, Mr. Partin told a police
operative that he could obtain ecstasy and that his source was
outside. Officers then observed a blue Chevrolet minivan outside
Mr. Partins residence at that time and checked the license plate
with Department of Motor Vehicle records, which listed the van as
being registered to Defendant at 5600 Petoskey Avenue Apartment E.
Mr.
Partin
did
in
fact
obtain
ecstasy
shortly
thereafter,
10
July 13, 2005, officers followed Mr. Partin to 5600 Petoskey Avenue
and observed him meeting with Defendant in the blue minivan, thus
confirming the link between Mr. Partin, the Defendant, and the
minivan that was outside on May 18, 2005 when Mr. Partin referred
to his source.
Finally,
After
was stopped, and had in his possession only $100 of the $500 given
to him during the controlled buy.
11
fact
that
the
affidavit
regarding
Defendants
contends
that
did
there
criminal
was
not
include
history.
insufficient
any
information
Finally,
Defendant
information
linking
cause,
and
our
inquiry
is
simply
whether
there
is
Moreover,
Finely-tuned standards
decision.
[I]t
is
clear
that
only
the
B.
Defendant also contends that the warrant was invalid because
the affidavit contained false or misleading information.
In order
13
In addition, under
if
the
offending
information
is
excluded
and
in
reckless
disregard
of
whether
they
thereby
made,
the
and
then
left
with
his
female
companion
before
controlled purchase, Mr. Partin was followed from the buy location
to 5600 Petoskey Avenue, but Defendant contends that Mr. Partin
entered the fast food restaurant and ate with other individuals
before proceeding to 5600 Petoskey Avenue. Defendant contends that
by omitting this information, the affidavit misled the magistrate
into inferring that Mr. Partin was taking the proceeds from the
sale
and
immediately
apartment.
delivering
them
to
Mr.
Randolph
at
his
the
controlled
buys
were
made
15
under
police
control
and
supervision.
July 13, Mr. Partin went straight to 5600 Petoskey Avenue after he
left the restaurant where the controlled purchase had occurred.
The fact that he entered the restaurants to eat or to retrieve his
companion before leaving is a minor, immaterial omission in the
circumstances, and does not render the information in the affidavit
false
or
otherwise
create
false
or
misleading
impression.
III.
Finally, Defendant challenges the calculation of his advisory
sentencing
range
under
the
U.S.
16
Sentencing
Guidelines.
In
Guidelines
the
district
court
included
4-point
Defendant contends
was
possessed
in
connection
with
another
felony,
as
evidenced by the jury verdict finding him not guilty on the charge
of possession of a firearm in furtherance of a drug trafficking
crime.
United States v.
Nale, 101 F.3d 1000 (4th Cir. 1996); United States v. Garnett, 243
F.3d 824 (4th Cir. 2001).
purpose or effect with respect to the felony, that is, that the
firearm facilitated or had the potential to facilitate the offense.
United States v. Blount, 337 F.3d 404 (4th Cir. 2003) (adopting
standard set out in Smith v. United States, 508 U.S. 223 (1993),
involving use of a firearm in relation to a drug trafficking
crime under 18 U.S.C. 924(c)).
17
203
F.3d
259,
266
(4th
Cir.
2000).
The
section
making
the
Guideline
calculations
in
this
case,
the
district court had before it evidence that the loaded pistol was
located in Defendants bedroom in his dresser drawer, near the
ecstasy pills, marijuana, and currency from Defendants drug sales.
The district court also had before it evidence that Defendant
engaged in drug sales from his residence where the firearm was
located.
dealer for some time and kept his drug supply at his residence
where the loaded pistol was found. The district court specifically
concluded that Defendant possessed the firearm for the purpose of
protecting his drugs and his drug trafficking assets.
findings
of
fact
are
not
clearly
erroneous
and
These
support
the
18
this
respect
is
the
standard
that
applies
with
to
section
1004
(contrasting
standards).
section
2D1.1(b)(1)
section
2K2.1
acquittal
on
the
charge
of
possession
of
firearm
in
it
is
well
established
that
sentencing
court
may
19
(1997)
that
(holding
Double
Jeopardy
Clause
did
not
bar
In
the present case, the district court engaged in the requisite factfinding by a preponderance of the evidence, computed the advisory
guideline
range,
and
then
considered
the
resulting
advisory
We find no
IV.
For all of the reasons discussed above, we conclude that
Defendants
Motion
to
Suppress
was
properly
denied,
and
his
v. United States, 508 U.S. 223 (1993), requiring that the firearm
have facilitated or had the potential of facilitating another
felony offense, which is the same standard previously adopted in
this Circuit, and the new Application Note would not affect the
application of the enhancement in the present case.
21