United States v. Barlow ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5528
CHARLES TERRENCE BARLOW,
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-94-74)
Submitted: May 7, 1996
Decided: May 28, 1996
Before HALL and WILKINS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Sa'ad El-Amin, EL-AMIN & CRAWFORD, P.C., Richmond, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, Janet S.
Reincke, Assistant United States Attorney, Terence P. Malloy, Third
Year Law Student, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Pursuant to his guilty plea, Charles Barlow was convicted of pos-
sessing with intent to distribute "crack" cocaine, in violation of 21
U.S.C. § 841(a)(1) (1988), and 21 U.S.C. § 841(b)(1)(A)(iii) (1988),
and of carrying a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1) (West 1976 & Supp.
1996). In this appeal, Barlow exercises the right which he preserved
in his plea agreement to challenge the district court's denial of his
motion to suppress evidence obtained by police during a search of his
apartment. He also challenges the district court's decision to deny his
motion for a downward departure under USSG § 5K2.0.*
Barlow contends that the search of his apartment was improper
because police entered the apartment through use of a battering ram,
without first knocking and announcing their authority and purpose.
We have recognized that an exception to the knock and announce
requirement arises where officers encounter exigent circumstances
such as the imminent threat of danger to police or that evidence will
be destroyed. See United States v. Kennedy, 32 F.3d 876, 882 (4th
Cir. 1994). We find that there is ample evidence in this case that
police reasonably believed that they would have seriously endangered
themselves by complying with the knock and announce requirement.
Prior to their execution of a warrant to search Barlow's apartment,
police learned from an undisputedly reliable informant that he had
seen a quantity of drugs for sale in Barlow's apartment, and that Bar-
low kept several handguns close to his person for the purpose of pro-
tecting himself and the drugs. We have recognized the commonality
with which drug distribution involves the presence of firearms. Id._________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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Moreover, although Barlow was not in the apartment at the time the
police entered, they reasonably believed that he would be there based
on information they received from the informant, including the infor-
mant's description of a vehicle which matched the characteristics of
a vehicle parked in front of Barlow's apartment at the time of the
search. We note that Barlow in fact arrived at the apartment shortly
after the search began. Accordingly, we affirm the district court's
decision to deny Barlow's motion to suppress.
Barlow also contends that the district court erred by finding that it
lacked authority to grant his motion for a downward departure. Bar-
low's motion was based on the position that the United States Sen-
tencing Commission's recommendation to Congress that it dispense
with the 100-to-1 ratio for crack and powder constituted an aggravat-
ing or mitigating circumstance not adequately taken into consider-
ation by the Commission in formulating the guidelines, thereby
justifying a departure under § 5K2.0. The district court, however, cor-
rectly found that it lacked authority to depart based merely on a
potential change to the guidelines. See 18 U.S.C.A. § 3553(a)(4)
(West Supp. 1995).
Accordingly, the district court's judgment is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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