United States v. White ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4770
MARVIN WHITE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4771
DEBORAH L. WHITE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4784
FLOYD J. WHITE,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-97-194-5)
Submitted: August 31, 1999
Decided: September 20, 1999
Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Brian J. Kornbrath, Assistant Federal Public Defender, Charleston,
West Virginia; G. Ernest Skaggs, Fayetteville, West Virginia; Mat-
thew A. Victor, Charleston, West Virginia, for Appellants. Rebecca
A. Betts, United States Attorney, Steven I. Loew, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants appeal their convictions for aiding and abetting the theft
of government property, in violation of 18 U.S.C.A.§ 641 (West
1976 & Supp. 1999), aiding and abetting the possession with intent
to distribute marijuana, in violation of 21 U.S.C.§ 841(a)(1) (1994),
aiding and abetting the manufacture by growing and cultivating 100
or more marijuana plants, in violation of 21 U.S.C.§ 841(a)(1), and
being a felon in possession of a firearm, in violation of 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1999). Marvin White also challenges his sen-
tence. Finding no error, we affirm the judgments.
Floyd and Deborah White allege that the search warrant for the
search of their farm was not supported by substantial evidence for the
search for burglary tools, tractor serial number plate, and National
Park Service identification stickers. We find that probable cause
existed to support the warrant. See Illinois v. Gates, 462 U.S. 213, 238
(1983); United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993);
United States v. Torch, 609 F.2d 1088, 1089 (4th Cir. 1979). Floyd
and Deborah White assign error to the district court's order granting
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the Government's motion in limine to prevent them from presenting
evidence relevant to an entrapment by estoppel defense. Specifically,
the Government sought to exclude any evidence that would support
the Whites' claim that a federally-licensed firearms dealer told them
that they could legally possess firearms despite their having a prior
felony conviction. We find that the court did not err in granting the
motion. See United States v. Etheridge, 932 F.2d 318, 320 (4th Cir.
1991); see also United States v. Howell, 37 F.3d 1197, 1205-06 (7th
Cir. 1994); United States v. Billue, 994 F.2d 1562, 1568-69 (11th Cir.
1993); United States v. Austin, 915 F.2d 363, 366-67 (8th Cir. 1990)
(all holding that federally licensed firearms dealers are not public offi-
cials for purposes of the entrapment by estoppel defense).
All three Appellants allege that sufficient evidence was not pre-
sented at trial to support their convictions on each count. Taking the
view most favorable to the Government, we find that sufficient evi-
dence existed to support each count of conviction for each Appellant.
See Glasser v. United States, 315 U.S. 60, 80 (1942). All three Appel-
lants also argue that the district court erroneously abdicated its role
as an independent fact finder when it relied upon the testimony at trial
and the jury's verdict in determining the amount of marijuana plants
cultivated.
The court held an evidentiary hearing at sentencing and heard testi-
mony from opposing witnesses on the issue of number of marijuana
plants. The court found that competent evidence supported the jury's
finding that over 100 plants were cultivated. The Appellants rely upon
Edwards v. United States, 523 U.S. 511 (1998). We find that Edwards
is not applicable to this case because there was no doubt as to the
jury's finding regarding the type and amount of drugs involved in the
offense. We find that the court did not clearly err and sufficiently
found that a preponderance of the evidence supported the amount of
cultivated marijuana plants attributed to the Appellants. See United
States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994).
Marvin White argues that the district court erred in denying his
motion to sever the trial because there was no basis for a joint trial
under Rule 8 of the Federal Rules of Criminal Procedure. We find
that the court did not abuse its discretion in denying the motion. See
United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir. 1992). See
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also Zafiro v. United States, 506 U.S. 534, 537-40 (1993); United
States v. Spitler, 800 F.2d 1267, 1271-72 (4th Cir. 1986). Finally,
Marvin White argues that the court erred in increasing his offense
level under U.S. Sentencing Guidelines Manual , § 3C1.1 (Nov. 1998),
for obstruction of justice, based upon his perjury at trial. We find the
court's finding on the enhancement for perjury to be sufficient. See
United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995) (quoting
United States v. Dunnigan, 507 U.S. 87, 94-95 (1993)).
We therefore affirm the judgments. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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