United States v. Devon Marion , 547 F. App'x 283 ( 2013 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4103
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    DEVON LAMAR MARION,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.   James C. Dever III,
    Chief District Judge. (5:11-cr-00338-D-1)
    Submitted:   August 2, 2013              Decided:   December 4, 2013
    Before GREGORY and FLOYD, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Terry F. Rose, Smithfield, North Carolina, for Appellant.
    Thomas G. Walker, United States Attorney, Jennifer P. May-
    Parker, Kristine L. Fritz, Assistant United States Attorneys,
    Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    On November 1, 2011, a federal grand jury sitting in the
    Eastern District of North Carolina charged Devon Lamar Marion
    (Marion) with: (1) possession with intent to distribute more
    than twenty-eight grams of cocaine base (crack), a quantity of
    cocaine, and a quantity of marijuana, 21 U.S.C. § 841(a)(1); (2)
    possession of a firearm in furtherance of a drug trafficking
    crime, 18 U.S.C. § 924(c)(1)(A); and (3) possession of a firearm
    by a convicted felon, 
    id. § 922(g)(1).
                  Marion pleaded guilty to
    these   offenses,     and    the   district         court    sentenced    him   to
    concurrent 108 month terms of imprisonment for the § 841(a)(1)
    and § 922(g)(1) offenses, and a consecutive sixty month term of
    imprisonment for the § 924(c)(1)(A) offense.                  On appeal, Marion
    challenges: (1) the district court’s denial of his motion to
    suppress evidence recovered pursuant to a search warrant; (2)
    the   district   court’s     denial    of     his    request    for   a   hearing
    pursuant to Franks v. Delaware, 
    438 U.S. 154
    (1978); and (3) the
    sentence imposed by the district court.              We affirm.
    I
    Legal   determinations        underlying         a     district     court’s
    suppression rulings, including the denial of a Franks hearing,
    are   reviewed   by   this    court    de     novo,    and     factual    findings
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    relating to such rulings are reviewed for clear error.                               United
    States v. Allen, 
    631 F.3d 164
    , 171 (4th Cir. 2011).
    In     June    2011,     a    confidential         informant          (CI)   provided
    information to law enforcement authorities in Cumberland County,
    North Carolina concerning a drug dealer known as “Fat Rat.”                              The
    information provided by the CI included, among other things, the
    following     about     “Fat       Rat”:    (1)     he   used    rental       vehicles   to
    distribute drugs in Fayetteville, North Carolina; (2) he had a
    blue car with blue wheels; and (3) he had a house in Hope Mills,
    North Carolina.
    A search of a police database revealed that Marion was also
    known as “Fat Rat.”            When presented with a photograph of Marion
    by law enforcement authorities, the CI confirmed that “Fat Rat”
    and Marion were the same person.
    “Using        investigative          techniques,”       the      law     enforcement
    authorities discovered a rental agreement in which Marion was
    listed as the renter of a 2011 Dodge Ram truck (the Dodge Ram).
    On the rental agreement, Marion listed his contact phone number
    as   (910)    354-9476.         A    “reverse       check”      on    the    phone   number
    revealed that the phone number (910) 354-9476 was a land line to
    a residence located at 612 Connors Cove (the Residence) in Hope
    Mills.
    While     under     the       surveillance         of     the    law     enforcement
    authorities, Marion, using the Dodge Ram, made several short
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    trips from the Residence in Hope Mills to known drug areas in
    Fayetteville.          Each time Marion arrived at a known drug area, he
    stayed      there      only    a    short      time    before        returning      to     the
    Residence.
    On two separate occasions, the law enforcement authorities
    examined      the      trash   at     the    Residence.         Each      time,     the    law
    enforcement         authorities       found    multiple       plastic        baggies      with
    ripped      off      corners.          According       to     the      law       enforcement
    authorities, this evidence was consistent with the packaging and
    repackaging of controlled substances.
    On   July       6,   2011,      Detective       Joseph    Herring          (Detective
    Herring) of the Fayetteville Police Department observed the name
    “Fat   Rat”    stitched        onto    the    head    rests     of    a   blue     Chevrolet
    Caprice with blue rims parked in the driveway of the Residence.
    A DMV search revealed that the car was registered to Marion.
    Based      on    this    information,          and   information          concerning
    Marion’s       previous         conviction       involving           drugs,       the      law
    enforcement       authorities         prepared   an     affidavit         (the   Affidavit)
    and applied for a search warrant for the Residence, and the
    warrant was granted by a Cumberland County Magistrate (Issuing
    Magistrate) on July 17, 2011.                  The search warrant was executed
    the following day.             During the search of the Residence, the law
    enforcement       authorities         recovered,      among     other      things,       110.3
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    grams of crack; .9 grams of cocaine; 2.5 grams of marijuana; a
    Ruger .357 handgun; and $8,526 in United States currency.
    Following       his    indictment,           Marion    moved   to     suppress     the
    evidence recovered at the Residence on the basis that the search
    was not supported by probable cause.                     In the alternative, Marion
    sought     a    hearing    pursuant         to     Franks,      contending     that     the
    Affidavit included false and misleading statements and that the
    affiants       purposefully      omitted      certain      information.         A   United
    States   Magistrate        Judge      recommended        that    both    the   motion    to
    suppress and the request for a Franks hearing be denied.                                The
    district court adopted the magistrate judge’s recommendation.
    A
    Marion contends that the search of the Residence was not
    supported by probable cause.                  In particular, he contends that
    the information contained in the Affidavit did not provide the
    Issuing Magistrate with a proper basis to conclude that evidence
    of a crime would be found at the Residence.
    Subject to certain exceptions that are not applicable in
    this case, police officers must obtain a warrant to conduct a
    search or seizure at a residence.                   U.S. Const. amend IV; United
    States   v.      Kelly,    
    592 F.3d 586
    ,    589     (4th    Cir.    2010).       An
    affidavit       supporting       a   warrant      that     authorizes      a   search    or
    seizure “must provide the magistrate with a substantial basis
    for determining the existence of probable cause” in light of the
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    totality of the circumstances.                   Illinois v. Gates, 
    462 U.S. 213
    ,
    239 (1983).       “[T]o establish probable cause, the facts presented
    to   the    magistrate            need    only   ‘warrant         a    man       of   reasonable
    caution’ to believe that evidence of a crime will be found.”
    United States v. Williams, 
    974 F.2d 480
    , 481 (4th Cir. 1992)
    (per curiam)          (quoting Texas v. Brown, 
    460 U.S. 730
    , 742 (1983)
    (plurality opinion)).               On appeal, we give “[g]reat deference . .
    . [to] a magistrate’s assessment of the facts when making a
    determination of probable cause.”                     
    Williams, 974 F.2d at 481
    .
    The Affidavit presented to the Issuing Magistrate supported
    the finding of probable cause.                    The law enforcement authorities
    sought     to   search        the        Residence     for   evidence            of   controlled
    substances      and        drug    trafficking         activity.            In     support,    the
    Affidavit       described          a     previous      conviction           involving        drugs.
    Moreover,       the    CI     provided         information         concerning          the     drug
    trafficking activities of “Fat Rat,” and he identified Marion as
    “Fat    Rat”    in     a    photograph         provided      by       the    law      enforcement
    authorities.          The CI’s information was corroborated by, among
    other things, Marion’s pattern of traveling from the Residence
    in a rented vehicle to known drug areas, staying for a short
    period     of   time       before        returning     to    the       Residence,        and   the
    stitching of “Fat Rat” on the head rests of the Caprice Classic.
    Under    the    circumstances             of   this    case,      it     is      reasonable     to
    suspect that a drug dealer would store drugs and items used in
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    the sale of drugs at a residence: (1) where he stays; (2) where
    he appears to maintain two automobiles, including one that is
    rented; (3) where law enforcement authorities recovered evidence
    of drug trafficking activity in the trash; and (4) where law
    enforcement authorities saw him on several occasions traveling
    from such residence to known drug areas, and then returning to
    such    residence       after     a    brief       stay.       Cf.     United         States    v.
    Anderson, 
    851 F.2d 727
    , 729 (4th Cir. 1988) (agreeing with other
    circuits “that the nexus between the place to be searched and
    the items to be seized may be established by the nature of the
    item and the normal inferences of where one would likely keep
    such     evidence”).         In       short,       the     district        court      correctly
    determined       that      there      was      probable        cause       to     search       the
    Residence.
    B
    Alternatively, Marion contends that the Affidavit could not
    establish probable cause because: (1) the Affidavit was based on
    false     and     misleading          information;          and      (2)        the    affiants
    purposefully omitted certain information.                         According to Marion,
    the     Affidavit    recklessly          and       materially        misrepresented            his
    criminal        history,     the       phone       number      associated             with     the
    Residence, and the timing of the DMV search on the Chevrolet
    Caprice.        Marion     also    posits      that      the   Affidavit         omitted       the
    location of the trash or the manner in which it was collected by
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    the law enforcement authorities, and that the Issuing Magistrate
    likely was misled by a statement in the Affidavit regarding the
    procedure      followed       in       searching     the      trash.        Taken    together,
    Marion argues these misstatements and omissions violate Franks
    and require invalidation of the search warrant and suppression
    of   all     evidence       seized      during     the       search    of    the    Residence.
    Marion also argues that he was, at a minimum, entitled to a
    Franks hearing.
    In Franks, the Supreme Court held that a “search warrant
    must be voided and the fruits of the search excluded” if a
    defendant establishes, by a preponderance of the evidence, that
    the affidavit supporting that warrant included false statements
    made “knowingly and intentionally, or with reckless disregard
    for the truth” and that those false statements were “necessary
    to     the    finding       of     probable        cause”      such     that,       “with     the
    affidavit’s         false    material        set   to    one    side,       the    affidavit’s
    remaining content is insufficient to establish probable 
    cause.” 438 U.S. at 155-56
    .                A defendant is entitled to a hearing to
    pursue       this    relief       if    he   makes       a    “substantial         preliminary
    showing”       that     the        affiant         intentionally            included        false
    statements necessary to the finding of probable cause.                                 
    Id. at 155.
    A defendant bears a heavy burden to establish the need for
    a Franks hearing.                United States v. Jeffus, 
    22 F.3d 554
    , 558
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    (4th   Cir.   1994).         With    a   claim      that      the    affiant       made    the
    affidavit deceptive by omitting facts, the defendant’s “burden
    increases yet more.”           United States v. Tate, 
    524 F.3d 449
    , 454
    (4th Cir. 2008).        In such a case, the defendant must show “that
    facts were omitted ‘with the intent to make, or in reckless
    disregard     of      whether       they     thereby          made,        the     affidavit
    misleading.’”        
    Id. at 455
    (quoting United States v. Colkley, 
    899 F.2d 297
    , 300 (4th Cir. 1990)).                    A claim that the affiant was
    negligent or made an innocent mistake is inadequate to obtain a
    Franks hearing.        United States v. McKenzie-Gude, 
    671 F.3d 452
    ,
    462 (4th Cir. 2011).          The preliminary showing “must be more than
    conclusory     and    must    be    accompanied          by    a    detailed       offer    of
    proof.”       
    Colkley, 899 F.2d at 300
        (citation        and    internal
    quotation     marks     omitted).            Consideration            of     the     omitted
    information must “be such that its inclusion in the affidavit
    would defeat probable cause.”               
    Id. at 301.
               Thus, a defendant is
    not entitled to a Franks hearing if, once the false statements
    are excised and the omitted information is inserted, probable
    cause still exists.          
    Franks, 438 U.S. at 171-72
    .
    In this case, even excluding all controverted statements
    from   the    Affidavit      and    including       the       omissions      that    Marion
    alleges, the Affidavit would support the Issuing Magistrate’s
    finding of probable cause.                 Accepting Marion’s arguments, the
    Affidavit would still have included the following: (1) Marion
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    had    a    previous        conviction        (albeit      not    a     felony      conviction)
    involving       drugs;       (2)       the    CI    provided       the      law     enforcement
    authorities with information regarding an alleged drug dealer
    known as “Fat Rat”; (3) the CI said that “Fat Rat” usually
    rented vehicles in which to deliver drugs in the Fayetteville
    area; (4) the CI indicated that “Fat Rat” has a home in Hope
    Mills; (5) the CI said that “Fat Rat” had a blue car with blue
    wheels; (6) a search of a police database revealed that Marion
    was known as “Fat Rat”; (7) the CI identified Marion as “Fat
    Rat”       in   a     photograph             provided      by     the       law     enforcement
    authorities;          (8)    Marion      rented      the    Dodge       Ram;      (9)     the    law
    enforcement         authorities          saw       the    Dodge       Ram    parked       at     the
    Residence;       (10)       the    law       enforcement        authorities         saw    a    blue
    Chevrolet       Caprice       with       blue      rims    and    the       words    “Fat       Rat”
    stitched in the head rests at the Residence; (11) on several
    occasions, Marion exited the Residence, got into the Dodge Ram,
    and    drove     to    parts       of    Fayetteville           known    for      illegal       drug
    activity;       and    (12)       on    these   occasions,        Marion       stopped         for   a
    short period of time in the known drug areas before returning to
    the Residence.              Unquestionably, even including the additional
    information Marion claims was omitted, the Issuing Magistrate
    still would have had a substantial basis for finding probable
    cause that Marion was using the Residence as a drug storehouse.
    Thus, Franks does not require invalidation of the search warrant
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    or suppression of the fruits of the search of the Residence.
    Nor is Marion entitled to a Franks hearing.
    II
    We     review     sentences         for       procedural      and     substantive
    reasonableness under an abuse of discretion standard.                         Gall v.
    United States, 
    552 U.S. 38
    , 51 (2007).                      Miscalculation of the
    Guidelines range is a significant procedural error.                           
    Id. In assessing
    whether the district court has properly applied the
    Guidelines, we review factual findings for clear error and legal
    conclusions de novo.            United States v. Osborne, 
    514 F.3d 377
    ,
    387 (4th Cir. 2008).           We will “find clear error only if, on the
    entire     evidence,     we     are     left      with   the    definite     and    firm
    conviction that a mistake has been committed.”                        United States v.
    Manigan,     
    592 F.3d 621
    ,     631       (4th   Cir.     2010)     (citation,
    alteration, and internal quotation marks omitted).
    In preparation for sentencing, a United States Probation
    Officer (the Probation Officer) prepared a presentence report.
    Using a Cumberland County street price of crack of $1,200 per
    ounce, the Probation Officer converted the $8,526 recovered at
    the Residence into 201.43 grams of crack.                       In arriving at this
    figure, the Probation Officer divided 8,526 (the amount of cash
    seized) by 1,200 (the street price of an ounce of crack in
    Cumberland     County)        and     then     multiplied      that     amount,     7.105
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    (ounces), by 28.35 (the number of grams in an ounce).                        When this
    201.43 grams was added to the other drugs recovered from the
    Residence, the resulting drug quantity placed Marion in a Base
    Offense     Level    of   32.        With    a    three-level         reduction       for
    acceptance of responsibility, Marion’s Total Offense Level was
    29, which, when coupled with a Criminal History Category of III,
    produced    an    advisory    sentencing     range      of    108    to   135   months’
    imprisonment for the § 841(a)(1) offense.
    Marion argues that the district court erred in calculating
    the advisory sentencing range for his § 841(a)(1) offense by
    incorrectly calculating the amount of drugs attributable to him.
    In particular, he challenges the manner in which the district
    court converted the $8,526 in United States currency recovered
    at the Residence into a crack equivalent.                    The gist of Marion’s
    argument is that the conversion of the $8,526 should have been
    to grams, not ounces, at a rate of $100 per gram, because there
    was   no    evidence      presented     at       sentencing         indicating       what
    quantities and at what prices Marion sold crack.                          According to
    Marion, using 85.26 grams instead of 7.105 ounces would have
    reduced his base offense level by four levels.
    At   sentencing,       the   government         need    only    establish       the
    amount of drugs involved in an offense by a preponderance of the
    evidence.        United States v. Cook, 
    76 F.3d 596
    , 604 (4th Cir.
    1996).      Moreover,     “[w]here    there      is    no    drug    seizure    or    the
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    amount seized does not reflect the scale of the offense, the
    court     shall        approximate         the    quantity     of     the       controlled
    substance”;          “[i]n   making       this    determination,       the      court      may
    consider,    for       example,     the     price    generally      obtained         for   the
    controlled      substance.”              United   States     Sentencing       Commission,
    Guidelines Manual, § 2D1.1, cmt. (n.12) (2011).
    Cash is properly converted to drug equivalents when it is
    part of the same course of conduct, either because it is the
    proceeds of drug sales or would be used to purchase more drugs
    in the future.           United States v. Hicks, 
    948 F.2d 877
    , 882-83
    (4th Cir. 1991).             “A district court may properly convert cash
    amounts linked credibly to the defendant’s purchase or sale of
    narcotics       so    long    as    the     court    does    not    engage      in    double
    counting of both the proceeds and the narcotics themselves.”
    United States v. Sampson, 
    140 F.3d 585
    , 592 (4th Cir. 1998).
    In     this        case,      the     government       presented       evidence        at
    sentencing suggesting that Marion sold crack in large quantities
    instead    of     the    small     quantities        typically      sold   by    a    street
    dealer.      The       packaging      and    other    evidence      recovered        at    the
    Residence       also     suggested        that    Marion     sold     crack     in     large
    quantities instead of small quantities.                     Based on this evidence,
    the district court did not clearly err when it converted the
    $8,526 to ounces of crack instead of grams.                         See United States
    v. Kiulin, 
    360 F.3d 456
    , 461 (4th Cir. 2004) (“Thus, we hold
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    that a district court need not ‘err,’ on the side of caution or
    otherwise; it must only determine that it was more likely than
    not that the defendant was responsible for at least the drug
    quantity attributed to him.”); United States v. Uwaeme, 
    975 F.2d 1016
    ,   1019    (4th    Cir.   1992)   (“Neither     the   Guidelines    nor   the
    courts have required precise calculations of drug quantity.”).
    III
    For the reasons stated herein, the judgment of the district
    court is affirmed.         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
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