United States v. Terry , 276 F. App'x 303 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4933
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER T. TERRY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, District
Judge. (2:06-cr-00228)
Submitted: April 22, 2008 Decided: May 7, 2008
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Matthew A. Victor, VICTOR VICTOR & HELGOE, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Kristina D. Raynes, Special Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger T. Terry, Jr., was convicted after a jury trial of
two counts of possession with intent to distribute five or more
grams of cocaine base (“crack”), in violation of 21 U.S.C.
§ 841(a)(1) (2000). The district court sentenced him to 151 months
imprisonment.* He appeals, challenging the district court’s denial
of his motion to suppress evidence discovered during two searches
and also challenging his sentence. We affirm his convictions, but
vacate his sentence and remand for resentencing.
Terry contends that the district court erred in denying
his motion to suppress crack cocaine that was discovered on his
person following his arrest on January 11, 2006, asserting that the
police officer lacked justification for approaching him and
ultimately arresting him, that the strip search of him was
unreasonable, and that the prompt presentation rule was violated.
He also sought to suppress evidence of the money discovered in a
safe in his apartment, contending that he did not freely and
voluntarily consent to the officers’ search of his apartment.
We have carefully considered the arguments of counsel and
the evidence presented to the district court, and we conclude that
the district court did not clearly err in denying Terry’s motion to
suppress. See United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
*
After Terry noted this appeal, the district court granted the
government’s Fed. R. Crim. P. 35(b) motion and reduced Terry’s
sentence to 78 months.
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1992) (providing standard of review). Thus, we affirm the denial
of the motion to suppress for the reasons stated by the district
court.
Terry also challenges his sentence, contending that the
district court erred in converting to crack cocaine all of the
currency located in the safe found in his bedroom. He argues that
this finding disregarded the testimony of his mother that Terry,
his mother, and his girlfriend were saving their money for a down
payment on a house. The district court’s finding that this
testimony was incredible is not clearly erroneous. See United
States v. Fisher, 58 F.3d 96, 100 (4th Cir. 1995) (providing that
credibility determinations are within province of sentencing court
and will not be overturned unless clearly erroneous).
Terry contends that the court erred in concluding that
the money was proceeds from the sale of drugs. Citing to United
States v. Rhynes, 196 F.3d 207, 238 (4th Cir. 1999), vacated in
part on other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc),
Terry also argues that, because there was evidence that he
possessed some powder cocaine, the currency should have been
converted to powder, rather than to crack cocaine. We have
reviewed the evidence and the arguments presented here and find
that the district court’s ruling that the entire amount of the cash
was proceeds from the sale of crack cocaine is supported by a
preponderance of the evidence and was not clearly erroneous. See
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United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006); United States v. Crump, 120 F.3d 462, 468
(4th Cir. 1997). We therefore affirm this ruling.
Terry also challenges his sentence as unreasonable,
citing to the November 1, 2007 amendment to the crack cocaine
guideline and the Supreme Court’s consideration of whether the
crack to powder cocaine disparity may be considered in sentencing.
See Kimbrough v. United States, 128 S. Ct. 558 (2007).
In Kimbrough, the Supreme Court held that “it would not
be an abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder disparity
yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s
purposes, even in a mine-run case.” Kimbrough, 128 S. Ct. at 575.
Here, the district court did not have the benefit of Kimbrough when
it determined Terry’s sentence. To give the district court the
opportunity to reconsider the sentence in light of Kimbrough, we
conclude that resentencing is necessary.
We therefore vacate the sentence imposed by the district
court and remand for resentencing. On remand, Terry will be
resentenced under the revised guidelines for crack offenses that
took effect on November 1, 2007. We dispense with oral argument
because the facts and legal contentions are adequately presented in
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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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