United States v. Shaw , 343 F. App'x 936 ( 2009 )


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  •                                 UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4642
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JOBARD MARK SHAW, a/k/a Boo,
    Defendant - Appellant.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Beckley.    Thomas E. Johnston,
    District Judge. (5:07-cr-00086-1)
    Submitted:    August 28, 2009              Decided:   September 10, 2009
    Before MICHAEL, KING, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston, West
    Virginia, for Appellant.      Charles T. Miller, United States
    Attorney, Miller Bushong, Assistant United States Attorney,
    Beckley, West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Following a jury trial, Jobard Mark Shaw was convicted on
    two counts of distribution of cocaine base (“crack”) and one
    count of possession with intent to distribute five grams or more
    of crack, all in violation of 
    21 U.S.C. § 841
    (a)(1) (2006).                      The
    district court sentenced Shaw to 120 months in prison.                          Shaw
    appeals.
    The    district     court   adopted       the       magistrate        judge’s
    recommendation to deny Shaw’s motion to suppress evidence.                     Shaw
    asserts on appeal that the district court erred by denying his
    motion to suppress.       We first note that, by failing to object to
    the magistrate judge’s report and recommendation, Shaw waived
    appellate review of this issue.            United States v. Midgette, 
    478 F.3d 616
    ,    621-22    (4th   Cir.   2007).         In    any    event,    Shaw’s
    challenge to the motion to suppress is meritless.
    Shaw asserts that the district court erred in denying his
    motion to suppress, citing State v. Mullens, 
    650 S.E.2d 169
    , 190
    (W.    Va.    2007),    which   held   that     the     West      Virginia    State
    Constitution prohibits the police from sending an informant into
    the home of another person to surreptitiously use an electronic
    surveillance device without a warrant.                However, whether or not
    a seizure violates state law is irrelevant to the determination
    of a motion to suppress in federal court.                  United States v. Van
    Metre, 
    150 F.3d 339
    , 347 (4th Cir. 1998).                    Moreover, federal
    2
    statutory and constitutional law permits officials to place an
    electronic surveillance device on a consenting informant for the
    purpose of recording communications with a third-party suspect,
    even   in   the   absence    of   a   warrant.       
    18 U.S.C. § 2511
    (2)(c)
    (2006);     see   also   United   States     v.   White,      
    401 U.S. 745
    ,   749
    (1971) (plurality opinion) (holding that no warrant is required
    when    “secret     agent”    working       for   the     Government        purchases
    narcotics from the accused and records the exchange).
    Based on the foregoing, we affirm Shaw’s convictions.                       We
    dispense     with    oral    argument      because      the    facts       and   legal
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    AFFIRMED
    3
    

Document Info

Docket Number: 08-4642

Citation Numbers: 343 F. App'x 936

Judges: Michael, King, Gregory

Filed Date: 9/10/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024