United States v. Brooks , 7 F. App'x 248 ( 2001 )


Menu:
  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                              No. 00-4492
    SAMUEL BROOKS, JR.,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Newport News.
    Henry C. Morgan, Jr., District Judge.
    (CR-00-3)
    Submitted: March 20, 2001
    Decided: April 16, 2001
    Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    Thomas W. Carpenter, THOMAS W. CARPENTER, P.C., Newport
    News, Virginia, for Appellant. Helen F. Fahey, United States Attor-
    ney, Robert E. Bradenham II, Assistant United States Attorney, Nor-
    folk, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    2                       UNITED STATES v. BROOKS
    OPINION
    PER CURIAM:
    Samuel Brooks, Jr., was convicted by a jury of possessing more
    than five grams of cocaine base (crack), in violation of 
    21 U.S.C.A. § 844
    (a) (West 1999). The district court imposed a sentence of sixty-
    three months imprisonment. Brooks contests the district court’s denial
    of his motion to suppress evidence seized from him pursuant to his
    arrest on suspicion of assault. He also appeals his sentence, contend-
    ing, first, that the district court’s application of the cross reference in
    U.S. Sentencing Guidelines Manual § 2D2.1(b)(1) (1998), denied him
    due process, and, second, that the district court erred in sentencing
    him to more than one year imprisonment because the jury did not
    determine that he possessed more than five grams of crack. We
    affirm.
    Brooks was arrested on July 21, 1999, in the apartment of his girl-
    friend, Monique Pyatt, after Pyatt called 911 and reported that she had
    been assaulted by him. In a search of Brooks’ person incident to the
    arrest, police seized 13.11 grams of crack, a loaded 9mm semiauto-
    matic handgun, $2375 in cash, and a pager. Brooks was later charged
    in federal court with possession of crack with intent to distribute, 
    21 U.S.C.A. § 841
    (a) (West 1999), and carrying a firearm during and in
    relation to a drug trafficking crime.* 
    18 U.S.C.A. § 924
    (c) (West
    2000).
    Brooks moved to suppress the evidence obtained in the search on
    the ground that the warrantless arrest was made without probable
    cause and the resulting search was unlawful. At the suppression hear-
    ing, the arresting officer testified that Pyatt invited the officers who
    answered her 911 call into her apartment, stated that her boyfriend
    had assaulted her, and indicated that Brooks was her boyfriend and
    the father of her child although he did not live in the apartment. The
    officer could see bleeding scratches on Pyatt’s face and neck. The
    officer testified that he believed he had probable cause to believe that
    Brooks had assaulted Pyatt, and that under the circumstances he had
    *Brooks was never charged with assault because Pyatt subsequently
    refused to cooperate with authorities.
    UNITED STATES v. BROOKS                          3
    authority to arrest Brooks. Both Pyatt and Brooks testified that
    Brooks had not assaulted Pyatt and that Pyatt neither told police that
    he had nor invited them into her apartment. The district court found
    that the officer’s account was credible, that the arrest was therefore
    lawful, and that the evidence seized incident to the arrest was admissi-
    ble. On appeal, Brooks claims that the evidence seized from his per-
    son was inadmissible because the officers had neither a search
    warrant nor an arrest warrant, nor probable cause to arrest him. For
    the reasons explained below, we find no error in the district court’s
    ruling.
    While evidence seized in violation of the Fourth Amendment is
    generally inadmissible, United States v. Seidman, 
    156 F.3d 542
    , 548
    (4th Cir. 1998) (citing Wong Sun v. United States, 
    371 U.S. 471
    , 484-
    85 (1963)), a lawful custodial arrest for any offense gives the police
    authority to conduct a full search of the arrestee’s person. United
    States v. Robinson, 
    414 U.S. 218
    , 235 (1973). The lawfulness of
    arrests by state officers for state offenses is determined by state law,
    as long as there is no violation of the federal constitution. Ker v. Cali-
    fornia, 
    374 U.S. 23
    , 37 (1963). Probable cause for a warrantless arrest
    is defined as "facts and circumstances within the officer’s knowledge
    that are sufficient to warrant a prudent person, or one of reasonable
    caution, in believing, in the circumstances shown, that the suspect has
    committed, is committing, or is about to commit an offense." United
    States v. Gray, 
    137 F.3d 765
    , 769 (4th Cir. 1998) (citation omitted).
    The determination that particular facts gave rise to probable cause for
    an arrest is a legal question reviewed de novo. 
    Id. at 770
    . The district
    court’s factual determinations are reviewed for clear error, 
    id.,
     and its
    credibility determinations are not subject to review. United States v.
    Wilson, 
    118 F.3d 228
    , 234 (4th Cir. 1997).
    In Brooks’ case, the district court determined that the officer
    believed he had authority to arrest Brooks after Pyatt told him Brooks
    was the father of her child and that he had assaulted her, because the
    officer could see physical evidence of an attack. Virginia law autho-
    rizes an arrest under such conditions. A person alleged to have com-
    mitted assault and battery against a family or household member may
    be arrested without a warrant if the arrest is based on probable cause,
    personal observation, or the reasonable complaint of a person who
    witnessed the offense. 
    Va. Code Ann. § 19.2-81.3
    (A) (Michie 2000).
    4                      UNITED STATES v. BROOKS
    A "family or household member" may be a person who has a child
    in common with the person making the complaint, whether or not
    they are married or have ever resided together. 
    Va. Code Ann. § 16.1
    -
    228(v) (Michie 1999). Therefore, the district court did not err in find-
    ing that the officers reasonably believed that they had probable cause
    to arrest Brooks. Because Virginia state law authorized an arrest
    based on probable cause under these circumstances, the district court
    did not abuse its discretion in finding that Brooks’ arrest was lawful
    and that the evidence seized in the search incident to the arrest was
    admissible.
    At trial, Brooks was acquitted of the two charged offenses—
    possession of crack with intent to distribute and a violation of
    § 924(c). He was convicted of the lesser included drug offense of
    knowingly possessing a controlled substance in violation of 
    21 U.S.C.A. § 844
    (a). For a first drug offense involving simple posses-
    sion, § 844(a) prescribes a sentence of not more than one year impris-
    onment unless the drug possessed is more than five grams of crack,
    in which case the sentence is five to twenty years imprisonment. The
    guideline applicable to a conviction under § 844(a) is USSG § 2D2.1.
    However, a cross reference in USSG § 2D2.1(b)(1) directs that, if the
    offense involves more than five grams of crack, USSG § 2D1.1
    should be applied as though the defendant had been convicted of pos-
    session of crack with intent to distribute. Over Brooks’ objections, the
    district court applied the cross reference in calculating Brooks’ sen-
    tence, thus increasing his base offense level from eight to twenty-six.
    The court also made a two-level enhancement under § 2D1.1(b)(1) for
    possession of a dangerous weapon during the offense. With an
    offense level of twenty-eight and criminal history category I, Brooks’
    guideline range was 63-78 months.
    Brooks maintains that the combined operation of § 844(a) and
    § 2D2.1 denied him due process and a fair trial because application
    of the cross reference in § 2D2.1(b)(1) negated the jury’s finding that
    he was not guilty of possessing crack with intent to distribute, and not
    guilty of possessing a firearm in connection with a drug offense. We
    disagree. Due process is not violated when the severity of a sentence
    is determined by the amount or type of drug possessed. See Chapman
    v. United States, 
    500 U.S. 453
    , 464-65 (1991). Congress has ratio-
    nally decided that possession of five grams or more of crack is a seri-
    UNITED STATES v. BROOKS                           5
    ous offense warranting a more severe sentence than possession of an
    equal quantity of other drugs. The cross reference in § 2D2.1(b)
    merely implements the requirement of § 844(a) that possession of
    more than five grams of crack be severely punished.
    Brooks also asserts that the cross reference is inconsistent with the
    statutory scheme and the rest of the guidelines because Congress
    intended simple possession of drugs in general to be punished less
    severely than possession for distribution. This assertion is belied by
    the five-to-twenty-year sentence prescribed in § 844(a) for a first
    offense involving simple possession of five or more grams of crack.
    With respect to the firearm enhancement under § 2D1.1(b)(1) that
    resulted from application of the cross reference, Brooks acknowl-
    edges that this Court has upheld the enhancement where it is based
    on conduct for which the defendant has been acquitted. See United
    States v. Romulus, 
    949 F.2d 713
    , 716-17 (4th Cir. 1991). Although
    the defendant in Romulus was convicted of possessing crack with
    intent to distribute, this distinction is not significant unless application
    of the cross reference was error. Because the cross reference was
    properly applied, as discussed above, the firearm enhancement was
    also correct.
    Last, we find nothing in the jury instruction on the lesser included
    offense that could affect Brooks’ sentence in light of Apprendi v. New
    Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
     (2000) (holding that any factor
    that increases the statutory maximum sentence, other than a prior con-
    viction, must be submitted to a jury and proved beyond a reasonable
    doubt). Because Brooks failed to challenge the jury instructions at
    trial, this issue is reviewed for plain error. Fed. R. Crim. P. 52(b);
    United States v. Olano, 
    507 U.S. 725
    , 731-32 (1993). Brooks must
    show that an error occurred, that the error was plain, and that the error
    affected his substantial rights. Olano, 
    507 U.S. at 732
    .
    The indictment charged that Brooks possessed five or more grams
    of crack with intent to distribute. In Instruction 11, the jurors were
    instructed that before they could convict Brooks, the government had
    to prove three elements beyond a reasonable doubt: (1) that Brooks
    "possessed the controlled substance described in the indictment;" (2)
    that Brooks knew the substance was a controlled substance; and (3)
    6                      UNITED STATES v. BROOKS
    that Brooks intended to distribute the controlled substance. The jury
    was further instructed in Instruction 12 that, "[I]f the government has
    proved elements 1 and 2 beyond a reasonable doubt, but did not prove
    the 3rd element that the defendant had the intent to distribute the con-
    trolled substance, then you may find the defendant guilty of the lesser
    offense." Thus, to convict Brooks of the lesser included offense of
    simple possession, the jurors were instructed that they had to find
    beyond a reasonable doubt that he had "possessed the controlled sub-
    stance described in the indictment." In United States v. Richardson,
    
    233 F.3d 223
    , 230-31 (4th Cir. 2000), this Court found that an instruc-
    tion worded in this way complied with Apprendi and with Jones v.
    United States, 
    526 U.S. 227
     (1999).
    Brooks attempts to distinguish Richardson by arguing that it did
    not address a lesser included offense instruction. However, Instruc-
    tions 11 and 12 must be read together and, taken together, they
    require the jurors to find beyond a reasonable doubt that Brooks pos-
    sessed more than five grams of crack as charged in the indictment
    before they could convict him of simple possession. Because the jury
    found that Brooks possessed more than five grams of crack, the dis-
    trict court did not err in sentencing him to a term of more than one
    year imprisonment.
    We therefore affirm the conviction and sentence. 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