United States v. Perdue ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4147
PAUL E. PERDUE, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 00-4238
PAUL E. PERDUE, JR.,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-99-314)
Submitted: August 18, 2000
Decided: September 14, 2000
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Christopher F. Cowan, COWAN, NORTH & LAFRATTA, L.L.P.,
Richmond, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, Rebeca Hidalgo Bellows, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Paul E. Perdue appeals from his conviction for possession with
intent to distribute cocaine in violation of 21 U.S.C.A. § 841(a)(1)
(West 1999), contending that the district court erred in denying his
motion to suppress post-arrest statements and in admitting into evi-
dence a 1998 calendar which contained "owe sheets." He also argues
that the evidence was insufficient to support his conviction. The
United States has filed a cross-appeal, arguing that the district court
erred in refusing to assess sentencing enhancements for possession of
a dangerous weapon under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (1998), and for obstruction of justice under USSG
§ 3C1.1. We affirm Perdue's conviction,1 but vacate his sentence and
remand for resentencing applying the enhancement under USSG
§ 2D1.1.
Perdue contends that because he had just been released from the
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1 We have considered the effect of Apprendi v. New Jersey, 120 S. Ct.
2348, 2000 WL 807189 (2000), and find that, because Perdue received
a sentence that did not exceed the statutory maximum set out in 21
U.S.C.A. § 841(b)(1)(C), no plain error occurred. See United States v.
Aguayo-Delgado, ___ F.3d ___, 2000 WL 988128, at *6-*7 (8th Cir.
July 18, 2000).
2
hospital following a drug overdose, he could not have knowingly and
voluntarily waived his Miranda2 rights, and, therefore his statements
to the officers on June 23, 1999, should have been suppressed. The
evidence presented during the suppression hearing established that on
June 23, 1999, Perdue was lucid, and he expressed a willingness to
talk to the officers. He signed a waiver of rights form, admitted details
about his drug dealing activities, and inquired about cooperating with
the officers. Given Perdue's responses to the inquiries, we conclude
that the district court properly found that, despite his drug overdose
eight hours earlier and his fatigue as the interview progressed, Perdue
understood the nature of his rights and the consequences of the
waiver. See United States v. Korn, 138 F.3d 1239, 1240 (8th Cir.)
(upholding waiver where defendant asserted he was under influence
of drugs and exhausted), cert. denied, 525 U.S. 947 (1998); United
States v. Andrews, 22 F.3d 1328, 1340-41 (5th Cir. 1994); United
States v. Lincoln, 992 F.2d 356, 359 (D.C. Cir. 1993). We therefore
affirm the district court's finding that the waiver of rights--and thus
the statements--were knowing and voluntary. See United States v.
Rusher, 966 F.2d 868, 873 (4th Cir. 1992); see also North Carolina
v. Butler, 441 U.S. 369, 373 (1979) (written waiver of rights is "usu-
ally strong proof of the validity of that waiver").
Perdue also challenges the denial of his motion to suppress his July
2, 1999, statement, contending that it was given without the benefit
of the Miranda warnings. Because he did not raise this challenge in
his motion to suppress or at the hearing on the motion, he has waived
his right to bring this claim on appeal. See Fed. R. Crim. P. 12(f);
United States v. DeWitt, 946 F.2d 1497, 1502 (10th Cir. 1991);
Indiviglio v. United States, 612 F.2d 624, 630 (2d Cir. 1979). Not-
withstanding the waiver of this issue, we find that Perdue was not in
custody when he made the July 2, 1999, statement, and therefore there
was no Miranda violation to warrant suppression of the statement.
We find that the evidence, viewed in the light most favorable to the
government, see Glasser v. United States, 315 U.S. 60, 80 (1942),
was sufficient to support Perdue's conviction. On June 23, 1999, 56.2
grams of cocaine were discovered inside a black pant suit. Also found
in the pant suit were a number of empty baggies, which, the detective
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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testified, are commonly used to package drugs for sale. On July 2,
1999, Perdue wore that same pant suit to his arraignment. In a duffle
bag found near the clothes, officers found Perdue's calendar and
address book, which contained "owe sheets" reflecting money paid or
owed for various drugs. A scale, more baggies, additional drugs and
drug paraphernalia were also found in the duffle bag. Even without
Perdue's incriminating statements, the evidence, construed in the light
most favorable to the government, was sufficient to support his con-
viction.
Perdue's post-arrest incriminating statements to the officers pro-
vided additional evidence of his possession with intent to distribute
the cocaine. Although Perdue argues that the statements should not be
given much weight due to the circumstances under which they were
given, in reviewing sufficiency of the evidence, this court does not
consider the weight of the evidence. See Glasser , 315 U.S. at 80. We
find that the evidence was clearly sufficient to support Perdue's con-
viction. See id.The last issue raised by Perdue is that the district court abused its
discretion in admitting into evidence the 1998 calendar and address
book, which contained the "owe sheets." The information in the cal-
endar was admissible as relevant to show Perdue's intent to distribute
the drugs. See United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.
1988). The fact that the calendar was for 1998--when the offense
charged occurred in June 1999--affects the weight of the evidence,
not its admissibility. Examining the evidence in the light most favor-
able to the government, we find no abuse of discretion in the admis-
sion of the calendar. See United States v. Love , 134 F.3d 595, 603 (4th
Cir. 1998) (quoting United States v. Simpson, 910 F.2d 154, 157 (4th
Cir. 1990)); Rawle, 845 F.2d at 1247.
In its cross-appeal, the government challenges the district court's
refusal to enhance Perdue's sentence for obstruction of justice. A two-
level enhancement is warranted if the defendant willfully obstructed
or impeded the investigation or prosecution of his case. See USSG
§ 3C1.1. The enhancement applies when a defendant commits perjury
during his trial. Id., comment. (n.3(b)); United States v. Dunnigan,
507 U.S. 87, 96 (1993). Because the district court, in declining to
impose the enhancement for obstruction of justice, noted the testi-
4
mony concerning Perdue's condition at the time of his incriminating
statements, the court apparently gave some credence to Perdue's
claim that he was not fully aware at the time of the post-arrest state-
ments. The district court's credibility determination that the inconsis-
tencies between Perdue's statements to the officers and his trial
testimony were the result of confusion, mistake or faulty memory,
rather than due to his willful attempt to obstruct justice, see USSG
§ 3C1.1, comment. (n.2), is not subject to review here. See United
States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995). In light of the
court's determination on this issue, the denial of the obstruction of
justice enhancement was not clearly erroneous. See United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Lastly, the government appeals the district court's refusal to
enhance Perdue's sentence for possession of a dangerous weapon
under USSG § 2D1.1(b)(1), which provides, in connection with sen-
tencing for a drug trafficking offense, "If a dangerous weapon
(including a firearm) was possessed, increase by 2 levels." USSG
2D1.1(b)(1). The enhancement "should be applied if the weapon was
present, unless it is clearly improbable that the weapon was connected
to the offense." Id., comment. (n.3). The proximity of guns to illegal
drugs is enough to support the enhancement. See United States v.
Harris, 128 F.3d 850, 852 (4th Cir. 1997).
In this case, a loaded handgun was found next to the duffle bag and
clothing on the floor in the bedroom. In the duffle bag and in and on
the clothing were numerous types and amounts of drugs, including the
cocaine that Perdue was convicted of possessing with the intent to
distribute. This is not a case where "it is clearly improbably that the
weapon was connected with the offense." See USSG § 2D1.1(b)(1),
comment. (n.3); Harris, 128 F.3d at 852-53 (upholding enhancement
where unloaded gun found in the same dresser as some of the drugs).
We therefore find that the district court clearly erred in refusing to
apply the two-level enhancement of USSG § 2D1.1(b)(1). See Love,
134 F.3d at 607. Accordingly we vacate Perdue's sentence and
remanding for resentencing applying the enhancement for possession
of a dangerous weapon.
In conclusion, we affirm Perdue's conviction, vacate his sentence,
and remand for resentencing applying the enhancement for possession
5
of a dangerous weapon under USSG § 2D1.1. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED IN PART; VACATED IN PART;
AND REMANDED
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