United States v. Craig , 14 F. App'x 260 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4789
JOSHUA WAYNE CRAIG,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-00-57)
Submitted: June 29, 2001
Decided: July 31, 2001
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, George H.
Lancaster, Jr., Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States Attorney,
John H. Tinney, Jr., Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
2 UNITED STATES v. CRAIG
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joshua Wayne Craig appeals his conviction for possession of an
unregistered sawed off rifle and the resulting sentence. We affirm.
Craig’s mother contacted the Putnam County, West Virginia sher-
iff’s department on August 24, 1999, to report that she had seen her
son and another person, Shane Eades, with marijuana at Joshua’s
house. The responding officer, Detective J.W. Luikart, went to Mrs.
Craig’s place of employment and interviewed her about the activity
she witnessed, and she provided him with a written statement. The
statement named Joshua Craig, Shane Eades and "Ernie" and claimed
that they were investing in pot as a profit making venture. The state-
ment also described the marijuana she saw on August 21, 1999, and
the packaging containing the drug.
Detective Luikart prepared an affidavit to obtain a search warrant
on August 24th and presented it to a magistrate. The portion of the
affidavit that propounded to establish probable cause stated "On 8-24-
99, this officer obtained a statement from an informant that on 8-21-
99 they saw Shane Eades and Joshua Craig in possession of a large
plastic bag containing numerous small plastic bags of marijuana. This
occurred at Joshua Craig’s residence." Detective Luikart supple-
mented the affidavit with oral statements identifying the informant as
Craig’s mother and explaining her concern that her son was involved
with dangerous people. These oral statements were not made under
oath. Magistrate Wood issued the warrant. Luikart and members of
the drug unit executed the search warrant the same day. At Craig’s
house, the officers recovered marijuana and also found a sawed-off
rifle in plain view. Craig volunteered that both the marijuana and the
rifle belonged to him. Craig further admitted that he knew the rifle
was fourteen inches long.
UNITED STATES v. CRAIG 3
A pretrial hearing was held in response to Craig’s motion to sup-
press the rifle as the fruit of an illegal search based on a warrant not
supported by probable cause. Detective Luikart testified to the cir-
cumstances surrounding the request for the warrant and stated that he
believed the warrant was issued on the basis of probable cause that
evidence of a crime was present at Craig’s house. The court consid-
ered the information provided in the affidavit in conjunction with the
information provided orally to the magistrate. The court also found
that the officers executing the search warrant had a good faith belief
in the validity of the warrant and an objectively reasonable basis for
relying on it and denied the motion to suppress. Craig challenges
these determinations on appeal.
A district court’s determination of probable cause under the Fourth
Amendment is an issue of law and is, therefore, reviewed de novo.
United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991). "The valid-
ity of a search warrant obtained by state officers is to be tested by the
requirements of the Fourth Amendment . . ., not by state law stan-
dards, when the admissibility of evidence in federal court is at issue."
United States v. Clyburn, 24 F.3d 613, 614 (4th Cir. 1994). Craig
avers that under Fourth Amendment standards, there was insufficient
basis for finding probable cause to support a warrant because Detec-
tive Luikart’s affidavit was too scant to provide probable cause and
his supplementary statements to the magistrate were not made under
oath.
The court, however, alternatively found that even if probable cause
was lacking, the officers executing the search warrant had a good
faith belief that the search warrant was based on probable cause and
had an objectively reasonable basis to rely on the warrant in conduct-
ing the search. This court, under similar circumstances, has found evi-
dence admissible under the good faith exception to the probable cause
requirement. United States v. Edwards, 798 F.2d 686, 690 (4th Cir.
1986) (citing United States v. Leon, 469 U.S. 213 (1983). As in
Edwards, there is no evidence in this case that the magistrate aban-
doned his neutral and detached judicial role, no evidence that the offi-
cer was dishonest or reckless in preparing the affidavit, and the
information presented to the magistrate in this case reasonably satis-
fied both the officer and the magistrate that probable cause existed to
4 UNITED STATES v. CRAIG
sustain the validity of the warrant. We therefore hold that the court
properly denied the motion to suppress.
Craig next challenges his twenty-four month sentence. He was con-
victed, after a bench trial on stipulated facts, of possession of an
unregistered sawed-off rifle in violation of 26 U.S.C. §§ 5861(d) &
5871 (1994). At sentencing, Craig requested a one-level adjustment
for acceptance of responsibility pursuant to United States Sentencing
Guidelines Manual § 3E1.1(b), despite the fact that he did not plead
guilty or cooperate with the Government. He contends on appeal that
denial of the adjustment violated the Equal Protection Clause of the
Fifth Amendment because he did not put the Government to the
expense of a jury trial but instead agreed to a bench trial on stipulated
facts on a timely basis. The district court accepted the Government’s
position that there was a rational basis for granting the adjustment
only to those who plead guilty and cooperate with the government.
An allegation that the Sentencing Guidelines violate the equal pro-
tection component of the Fifth Amendment is generally subject to
rational basis review. United States v. D’Anjou, 16 F.3d 604 (4th Cir.
1994). We have explicitly held, however, that selection of a bench
rather than a jury trial should not be factored into the acceptance of
responsibility determination. United States v. Dickerson, 114 F.3d
464, 469 (4th Cir. 1997). We also agree with the Government’s posi-
tion that there is a rational basis for excluding Craig from the benefit
of § 3E1.1(b), and accordingly hold that the district court properly
found no equal protection violation.
As a final matter, Craig requested a downward departure in recog-
nition that the sawed-off twenty-two rifle was not as dangerous as
other weapons listed in § 5861(d). The court considered this ground
for departure and determined that the rifle was a dangerous weapon,
both death-dealing and easily hidden. The court’s consideration of the
request for a downward departure establishes that it clearly under-
stood that it had the authority to depart. A district court’s refusal to
depart where it was clearly aware that it had the authority to make a
downward departure is not subject to appellate review. United States
v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990). We, therefore, decline to
review the district court’s denial of the downward departure.
UNITED STATES v. CRAIG 5
For the foregoing reasons, we affirm the district court’s denial of
Craig’s motion to suppress and his conviction and sentence. We dis-
pense 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