United States v. Thomas , 77 F. App'x 673 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4728
KENNETH EDMOND THOMAS, a/k/a
Peanut,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-02-4-A)
Submitted: August 19, 2003
Decided: October 14, 2003
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Matthew W. Greene, SMITH & GREENE, P.L.L.C., Fairfax, Vir-
ginia, for Appellant. Paul J. McNulty, United States Attorney, Morris
R. Parker, Jr., Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
2 UNITED STATES v. THOMAS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a jury trial, Kenneth Edmond Thomas was convicted of
conspiracy to distribute fifty grams or more of crack cocaine, in viola-
tion of 21 U.S.C. § 846 (2000), and distribution of fifty grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000).
The district court sentenced Thomas to concurrent 360-month prison
terms. Thomas appeals, raising several grounds of error. Finding no
merit to his claims, we affirm.
Thomas argues on appeal that the district court’s voir dire concern-
ing whether prospective jurors or members of their immediate fami-
lies had any previous involvement with illegal drugs or illegal
firearms improperly intimidated the jury. Without finding that an
error in fact occurred, we conclude that Thomas invited any error
when defense counsel asked the court to question the prospective
jurors about whether their immediate families "ever had . . . drug or
gun impact." Having invited such a line of questioning, Thomas can-
not object because the court complied with his request. United States
v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997) ("invited error doctrine
recognizes that a court cannot be asked by counsel to take a step in
a case and later be convicted of error, because it has complied with
such request") (internal quotation marks omitted).
Next, Thomas argues that the district court erred by denying his
motion to suppress items seized in violation of his Miranda* rights.
When executing an arrest warrant for Thomas and a search warrant
for documentary evidence of drug trafficking at his apartment, police
questioned him about whether he had any drugs or weapons. Thomas
directed the officers to a gun in a jacket pocket and 740 grams of
cocaine in a bag on a high chair in the living room. It is undisputed
*Miranda v. Arizona, 384 U.S. 436 (1966).
UNITED STATES v. THOMAS 3
that the officers failed to advise Thomas of his Miranda rights before
asking about the drugs and weapons. We find, however, that the dis-
trict court properly held that the firearm found in the jacket was
admissible under the public safety exception. New York v. Quarles,
467 U.S. 649, 659 n.8 (1984). We further find that the district court
properly admitted the drugs on the high chair; we conclude that these
drugs were admissible pursuant to the inevitable discovery doctrine
because they would have been discovered by lawful means, namely
during the course of the officers’ search, pursuant to the search war-
rant, for documentary evidence of drug trafficking. Nix v. Williams,
467 U.S. 431, 444 (1984).
Thomas also challenges his sentence, asserting that the district
court clearly erred by relying on the testimony of his co-conspirators
in determining the drug quantities and types attributable to him. He
argues that the co-conspirators’ testimony was not credible and that
the drugs about which they testified were not reasonably foreseeable
to him. Both claims are without merit.
In reviewing sentences imposed under the United States Sentencing
Guidelines, we must give due regard to the credibility determinations
made by the district court and shall accept the findings of fact of the
district court unless they are clearly erroneous. United States v. Dean,
140 F.3d 585, 591 (4th Cir. 1998). Based upon our review of the
record, we conclude that the district court’s determination of drug
quantities was not clearly erroneous. The drug quantities for which
the court held Thomas responsible were amounts of crack and powder
cocaine his co-conspirators testified they bought from or sold to
Thomas himself. Thus, these quantities were not just reasonably fore-
seeable to Thomas, they were actually known to him. United States
v. Williams, 986 F.2d 86, 90 (4th Cir. 1993).
Finally, Thomas asserts that the district court erred in applying a
two-level obstruction of justice enhancement, pursuant to U.S. Sen-
tencing Guidelines Manual § 3C1.1 (2001). The district court’s deter-
mination that a § 3C1.1 obstruction of justice enhancement applies is
a factual finding that we review for clear error. United States v. Dove,
247 F.3d 152, 155 (4th Cir. 2001); United States v. Castner, 50 F.3d
1267, 1279 (4th Cir. 1995).
4 UNITED STATES v. THOMAS
During the trial, one of Thomas’ co-conspirators, Je Bradford, testi-
fied that while he and Thomas were in a holding cell together in the
courthouse, Thomas expressed disbelief that Bradford would testify
against him and remarked that Bradford’s parents could "cancel
Christmas." Bradford testified that he interpreted these remarks as a
threat against his parents. Thomas asserts that the district court erred
because Bradford’s testimony was incredible and, in any event, even
if he had threatened Bradford, Bradford was not intimidated because
he in fact testified against Thomas. As previously stated, we give due
regard to credibility determinations made by the district court. In
addition, even though Thomas did not successfully obstruct justice,
the import of his statement was clearly a threat and the guidelines
expressly provide for the two-level adjustment if the defendant
attempts to obstruct justice. USSG § 3C1.1 comment. (n. 4(a)).
Accordingly, we find that the district court did not clearly err in
applying the adjustment.
For these reasons, we affirm Thomas’ conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED