United States v. Carlton May , 446 F. App'x 652 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLTON BRONTA MAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00331-FL-1)
Submitted: June 27, 2011 Decided: September 21, 2011
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. James Payne, Shallotte, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Jennifer E. Wells, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlton Bronta May appeals his conviction and 300-
month sentence for one count of conspiracy to distribute and
possess with intent to distribute 50 grams or more of cocaine
base in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006) (“Count
One”); one count of distribution of five grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1) (“Count
Two”); one count of possession with intent to distribute five
grams or more of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (“Count Three”); one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2006) (“Count Four”); and one count of
possession of a firearm in furtherance of a drug trafficking
offense in violation of 18 U.S.C. § 924(c) (“Count Five”). He
argues that the district court erred in denying his motion to
suppress certain evidence, that insufficient evidence supported
his conviction, and that the court erred in its drug quantity
finding for sentencing. We affirm.
May was indicted after police executed a search
warrant on his home, catching him in the act of trying to
dispose of cocaine base in the toilet, and discovering firearms,
currency, more cocaine base, digital scales and drug packaging
materials. Prior to executing the warrant, police arranged a
controlled purchase wherein an informant, Tyrone Kenney,
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purchased fourteen grams of cocaine base from May for $400.
After he was arrested and read his Miranda * warnings, May made
inculpatory statements to police indicating that he owned the
firearms despite his prior felony conviction and had distributed
significant quantities of cocaine and cocaine base.
May moved prior to trial to suppress the evidence
seized during the search. He argued that the address listed on
the affidavit for his home is actually shared by three trailer
homes and the warrant was thus not sufficiently particularized.
The magistrate judge recommended denying the motion and the
district court adopted that recommendation.
At trial, the Government adduced evidence from the
police who arranged the controlled purchase and executed the
warrant, as well as Kenney and another witness, George
Jefferson, who testified that they frequently purchased cocaine
and cocaine base from May. May’s witnesses testified that May
was not a drug dealer and that they did not observe May sell
Kenney cocaine base on the day of the controlled purchase. May
was convicted of each count of the indictment.
Prior to sentencing, the Probation Office issued a
presentence investigation report (“PSR”) indicating that based
on the amount of cocaine base sold to Kenney, the amount
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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recovered from the home, and the amount May stated in his
interview with police, for sentencing purposes, May was
accountable for 3304 grams of cocaine base. May objected, but
the district court indicated that because it was contemplating
sentencing May to the statutory mandatory minimum, disputing the
drug quantity would be an academic exercise. May ultimately was
sentenced to 300 months’ imprisonment, the statutory mandatory
minimum pursuant to 21 U.S.C. § 841(b)(1)(A) (2006) and 18
U.S.C. § 924(c) (2006). He noted a timely appeal.
I. Motion to Suppress
May argues that the district court erred in denying
his motion to suppress. He claims error in four respects:
(1) that the warrant was facially defective; (2) that the good
faith exception should not apply; (3) that the seizure of the
firearms was not authorized by the warrant or the plain view
exception; and (4) that his statements were fruits of the
illegal arrest. We review the factual findings underlying a
district court’s ruling on a motion to suppress for clear error
and the court’s legal conclusions de novo. United States v.
Kelly, 592 F.3d 586, 589 (4th Cir.), cert. denied, 130 S. Ct.
3374 (2010). When evaluating the denial of a suppression
motion, we construe the evidence in the light most favorable to
the Government, the prevailing party below. Id.4
a. Validity of the Warrant
May first claims that the warrant was invalid on its
face because it was not sufficiently particular in describing
the place to be searched. The validity of a search warrant is
reviewed under the totality of the circumstances, determining
whether the issuing judge had a substantial basis for finding
there was probable cause to issue the warrant. Illinois v.
Gates, 462 U.S. 213, 238-39 (1983); United States v. Grossman,
400 F.3d 212, 217 (4th Cir. 2005). We afford great deference to
the probable cause determination of the issuing judge. United
States v. Allen, 631 F.3d 164, 173 (4th Cir. 2011). We avoid
applying “‘hypertechnical’ scrutiny of affidavits lest police
officers be encouraged to forgo the warrant application process
altogether.” United States v. Robinson, 275 F.3d 371, 380
(4th Cir. 2001) (quoting Gates, 462 U.S. at 236).
The requirement for particularity in warrants “ensures
that the search will be carefully tailored to its
justifications, and will not take on the character of the wide-
ranging exploratory searches the Framers intended to prohibit.”
Maryland v. Garrison, 480 U.S. 79, 84 (1987). The particularity
requirement is satisfied when an officer in possession of a
search warrant describing a particular place to be searched can
reasonably ascertain and identify the intended place to be
searched. Steele v. United States, 267 U.S. 498, 503 (1925).
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The gravamen of May’s objection to the warrant is that
there are three trailer homes, located near one another, that
share the same address. We are not persuaded by his argument.
The application for the warrant described May and his vehicle,
and the police involved were familiar with May and his home.
Other courts of appeal have upheld the validity of a warrant
where, as here, a potential ambiguity is remedied by the
warrant’s reference to the owner of the property or the subject
of the search. See, e.g., United States v. Durk, 149 F.3d 464,
466 (6th Cir. 1998) (warrant not invalid when one part of the
description of the premises to be searched is inaccurate, but
the description has other parts that identify the place with
particularity); United States v. Bedford, 519 F.2d 650, 655
(3d Cir. 1975) (noting that warrant lacking any physical
description of particular apartment is valid if it specifies the
name of the occupant of the apartment against which it is
directed); United States v. Gitcho, 601 F.2d 369, 371
(8th Cir. 1979) (stating that personal knowledge of agents
executing the warrant of particular premises intended to be
searched validated a search pursuant to a warrant providing the
incorrect address). Here, it is clear that the officers
executing the warrant knew which trailer home was to be searched
and there was minimal risk of mistake. We accordingly conclude
that May’s argument is without merit.
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Because we conclude that the warrant was not
overbroad, we need not address whether the officers’ conduct was
reasonable for the purposes of the United States v. Leon, 468
U.S. 897, 922-26 (1987) good faith exception.
b. Firearms Seizure
May next argues that the firearms were improperly
seized. He argues that because the warrant application only
listed specific drugs, and items indicating the possession and
sale of controlled substances, and did not specifically list
firearms, the seizure of the firearms was outside the warrant’s
scope. We do not agree.
In United States v. Ward, 171 F.3d 188, 195
(4th Cir. 1999), we stated that “guns are tools of the drug
trade and are commonly recognized articles of drug
paraphernalia.” Thus, under the plan language of the warrant
application, the seizure of firearms was authorized. Moreover,
because the officers were lawfully present in the home and the
firearms were discovered in the open, they were properly seized
under the plain view doctrine. See United States v. Williams,
592 F.3d 511, 521 (4th Cir. 2010) (describing the scope of the
plain view doctrine).
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c. May’s Statements to Police
May next argues that his statements to police were
invalid as fruits of the illegal search. The Fourth Amendment
requires the suppression of evidence that is the fruit of
unlawful police conduct. Wong Sun v. United States, 371 U.S.
471, 484 (1963). Because the search was valid, May’s claim that
the statements must be suppressed fails.
II. Sufficiency of the Evidence
May next argues that the evidence was insufficient to
support any of his five convictions. We review de novo
challenges to the sufficiency of the evidence supporting a jury
verdict. United States v. Kelly, 510 F.3d 433, 440
(4th Cir. 2007). “A defendant challenging the sufficiency of
the evidence faces a heavy burden.” United States v. Foster,
507 F.3d 233, 245 (4th Cir. 2007). We review a sufficiency of
the evidence challenge by determining whether, viewing the
evidence in the light most favorable to the government, any
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. United States v. Collins, 412
F.3d 515, 519 (4th Cir. 2005). We review both direct and
circumstantial evidence, and accord the government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333
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(4th Cir. 2008). In reviewing for sufficiency of the evidence,
we do not review the credibility of the witnesses, and assume
that the jury resolved all contradictions in the testimony in
favor of the government. Kelly, 510 F.3d at 440. We will
uphold the jury’s verdict if substantial evidence supports it,
and will reverse only in those rare cases of clear failure by
the prosecution. Foster, 507 F.3d at 244-45.
May challenges each count for which he was convicted,
and we address each in turn.
a. Count One
Because this count involved a conspiracy charge under
21 U.S.C. § 846, the Government was required to prove (1) an
agreement between May and another person to engage in conduct
that violated a federal drug law; (2) May’s knowledge of the
conspiracy; and (3) May’s knowing and voluntary participation in
the conspiracy. See United States v. Strickland, 245 F.3d 368,
384-85 (4th Cir. 2001). Since a conspiracy is by its nature
clandestine and covert, it is generally proved by circumstantial
evidence. United States v. Burgos, 94 F.3d 849, 857
(4th Cir. 1996) (en banc). Evidence tending to prove a
conspiracy may include a defendant’s relationship with other
members of the conspiracy, and the existence of a conspiracy may
be inferred from a development and collocation of circumstances.
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Id. at 858. “Circumstantial evidence sufficient to support a
conspiracy conviction need not exclude every reasonable
hypothesis of innocence, provided the summation of the evidence
permits a conclusion of guilt beyond a reasonable doubt.” Id.(citation omitted).
May argues that, at best, the Government’s evidence
shows that he had a buyer-seller relationship with Kenney and
Jefferson. Such a relationship is not, in and of itself,
evidence of a conspiracy. United States v. Mills, 995 F.2d 480,
485 (4th Cir. 1993).
After review of the record, we are unpersuaded by
May’s claims. First, evidence of a buyer-seller relationship is
relevant to “the issue of whether a conspiratorial relationship
exists,” United States v. Yearwood, 518 F.3d 220, 226
(4th Cir. 2008) (internal quotation marks omitted). Further,
“[e]vidence of a buy-sell transaction coupled with a substantial
quantity of drugs . . . support[s] a reasonable inference that
the parties [are] co-conspirators.” United States v. Reid, 523
F.3d 310, 317 (4th Cir. 2008) (internal quotation marks and
ellipsis omitted). Similarly, continued relationships and
repeated drug transactions between parties are indicative of a
conspiracy, particularly when the transactions involve
substantial amounts of drugs. Id.10
Here, May’s statements to police, coupled with
Kenney’s and Jefferson’s testimony, indicate that May was
involved in a longstanding relationship with both men that
centered around the purchase, processing, and distribution of
cocaine and cocaine base. May frequently “fronted” Jefferson
cocaine base to distribute to others. Jefferson “cooked”
cocaine into cocaine base for May. Kenney frequently purchased
large quantities of cocaine base from May. In light of these
facts, the jury was permitted to convict May of the conspiracy
charge, and we will not disturb that conviction.
b. Count Two
May next argues that the evidence was insufficient to
convict him of distribution of five grams or more of cocaine
base. The Government sought to prove this charge through
evidence that on April 21, 2008, Kenney conducted a controlled
purchase of cocaine base from May wherein he purchased fourteen
grams of cocaine base for $400. The elements of distribution
are “(1) distribution of [a] narcotic controlled substance,
(2) knowledge of the distribution, and (3) intent to distribute
the narcotic controlled substance.” United States v. Randall,
171 F.3d 195, 209 (4th Cir. 1999).
May argues that while witnesses agreed that Kenney was
present in May’s home on the day of the alleged controlled
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transaction, several of his witnesses disputed Kenney’s account.
At bottom, May’s challenge is based on a dispute over the
credibility of the witnesses. The jury was entitled to believe
Kenney’s account over those of May’s witnesses. It is, of
course, axiomatic that we do not review the credibility of the
witnesses. See Kelly, 510 F.3d at 440.
c. Count Three
May next argues that there was insufficient evidence
for the jury to convict him of possession with intent to
distribute. In order to establish a violation of § 841(a)(1),
the government must prove beyond a reasonable doubt:
“(1) possession of the controlled substance; (2) knowledge of
the possession; and (3) intent to distribute.” United States v.
Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009). Possession may be
actual or constructive. United States v. Rusher, 966 F.2d 868,
878 (4th Cir. 1992). “A person may have constructive possession
of contraband if he has ownership, dominion, or control over the
contraband or the premises or vehicle in which the contraband
was concealed.” United States v. Herder, 594 F.3d 352, 358
(4th Cir.), cert. denied, 130 S. Ct. 3440 (2010). Intent to
distribute may be inferred if the amount of drugs found exceeds
an amount normally associated with personal consumption. United
States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993).
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On appeal, May argues that the only basis for his
conviction for possession with intent to distribute was his
statements made to police at the time of his arrest. He further
claims that his statements cannot form the basis for his
conviction because his wife testified that he was intoxicated at
the time he was released from jail.
Again, we are unpersuaded. First, May’s statements
are sufficient on their own to form the basis of this
conviction. Moreover, in executing the warrant, police
discovered cocaine base and digital scales, packaging material,
large amounts of currency, and firearms – all indicia of
distribution. Finally, the Government offered rebuttal evidence
attacking May’s claim that he was intoxicated when he made
statements to police, and we will not second-guess the jury’s
decision to credit the Government’s witnesses over May’s. In
sum, this evidence is more than enough to form the basis of a
conviction.
d. Count Four
May next argues that his conviction for possession of
a firearm by a convicted felon was not supported by sufficient
evidence. To support a conviction for being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1), the
government must prove the following elements: “(1) the
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defendant previously had been convicted of a [felony]; (2) the
defendant knowingly possessed . . . the firearm; and (3) the
possession was in or affecting commerce, because the firearm had
traveled in interstate or foreign commerce at some point during
its existence.” United States v. Moye, 454 F.3d 390, 394-95
(4th Cir. 2006) (en banc).
Here, three firearms were found in May’s home. He
conceded that he was a convicted felon and admitted that he
possessed the firearms, and as we have already concluded that
his statements were admissible, the evidence supports this
conviction.
e. Count Five
May argues that the Government did not adduce
sufficient evidence to convict him of Count Five, possession of
a firearm in furtherance of a drug trafficking offense. In
order to prove a 18 U.S.C. § 924(c) violation, the Government
must prove two elements: “(1) the defendant used or carried a
firearm, and (2) the defendant did so during and in relation to
a drug trafficking offense or crime of violence.” United
States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).
The Government adduced evidence that May possessed the
firearms, two of which were located in the room where police
discovered the strong evidence of drug distribution activities.
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The Government also adduced uncontroverted expert witness
testimony that drug dealers rely on firearms to protect
themselves because they cannot avail themselves of traditional
law enforcement services for protection. May claims that
because not all of the guns were loaded, they were not used in
furtherance of a drug crime. The presence of ammunition,
however, is only one factor weighing in favor of concluding that
the firearms were used in furtherance of a drug trafficking
crime. Based on the location of the firearms, the presence of
ammunition in the handgun seized, and May’s statements, the jury
could properly have convicted him of a violation of 18 U.S.C.
§ 924(c). We will therefore affirm May’s convictions.
III. Drug Quantity Calculation
Finally, May argues that the district court erred in
calculating the amount of drugs attributable to him. The court
concluded that May was accountable for 3304 grams of cocaine
base. We review a sentence for reasonableness under an abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). A preserved objection to a sentence is reviewed for
harmless error. See Puckett v. United States, 129 S. Ct. 1423,
1432 (2009) (noting that procedural errors at sentencing are
“routinely subject to harmlessness review”); see also United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (preserved
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claims are reviewed for abuse of discretion, and if the court
finds abuse, reversal is required unless the court concludes the
error was harmless).
Here, the only claim of sentencing error raised by May
is that the drug quantity was incorrect. However, as May was
sentenced to the statutory mandatory minimum, any error in drug
quantity calculation is clearly harmless. We therefore affirm
his sentence.
Accordingly, we affirm the district court’s judgment.
Counsel’s motion to withdraw/substitute counsel is denied. 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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