United States v. Hill ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4684
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO NICHOLAS HILL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:05-cr-01276-HFF)
Submitted: May 16, 2007 Decided: July 9, 2007
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Isaac
Louis Johnson, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Nicholas Hill was convicted by a jury of one
count of possession with intent to distribute fifty grams or more
of cocaine base, in violation of 21 U.S.C. § 841 (a)(1) and
(b)(1)(B)(2000). He was sentenced to 240 months’ imprisonment.
Hill’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), concluding there are no
meritorious issues for appeal but questioning whether the district
court erred in denying Hill’s motion to suppress evidence seized
pursuant to a search warrant. Hill has filed a pro se supplemental
brief alleging there was insufficient evidence to support his
conviction and the Government’s 21 U.S.C. § 851 (2000) notice was
inadequate because it did not identify his prior conviction.
Finding no reversible error, we affirm.
I. Motion to Suppress
Counsel contends the district court erred in denying
Hill’s motion to suppress drug evidence because the search warrant
was not supported by probable cause. This court reviews the
factual findings underlying the denial of a motion to suppress for
clear error and its legal conclusions de novo. United States v.
Johnson, 400 F.3d 187, 193 (4th Cir.), cert. denied, 126 S. Ct. 134(2005). The evidence is construed in the light most favorable to
the prevailing party below. United States v. Seidman, 156 F.3d
542, 547 (4th Cir. 1998).
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Probable cause is judged by an analysis of the totality
of the circumstances, weighed “not in terms of library analysis by
scholars, but as understood by those versed in the field of law
enforcement.” Illinois v. Gates, 462 U.S. 213, 230, 232 (1983).
Probable cause means that there is a “fair probability that
contraband or evidence of a crime will be found in a particular
place.” Id. at 238. The facts presented to the issuing judge need
only convince a person of reasonable caution that contraband or
evidence of a crime will be found at the place to be searched.
Texas v. Brown, 460 U.S. 730, 742 (1983). Appellate courts pay
great deference to the district court’s findings of probable cause
in relation to warrants. Gates, 462 U.S. at 236.
While executing an arrest warrant on March 16, 2005,
arising from a prior drug buy from Hill’s residence, Sheriff’s
officers saw Hill look out the front window of his mobile home and
quickly move back into the mobile home. As the officers knocked on
Hill’s front door and announced themselves several times, the
officers heard footsteps moving quickly through the mobile home and
a toilet flushing. Because Hill did not come to the door and based
on the narcotics officers’ experience with drugs being disposed of
through toilets, the officers entered the mobile home, detained
Hill on the ground, and conducted a protective sweep to secure the
remainder of the mobile home. No other individuals were located
during the sweep, but the officers saw in plain view that the
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toilet tank lid in the bathroom was ajar, there was water on the
bathroom floor, and there was a set of digital scales in the
kitchen.
An application for a search warrant was prepared with
that information, including a recitation of Hill’s prior drug
related offenses and convictions. A search warrant issued and was
executed that day. During the search, the officers seized two
Crown Royal bags in the toilet tank containing fourteen plastic
bags of cocaine base, the digital scales from the kitchen counter,
sandwich bags consistent with those in which the cocaine was
packaged, and approximately $500 cash. We find there was a
substantial basis to conclude that there was probable cause to
issue the search warrant for Hill’s mobile home on March 16, 2005.
II. Adequacy of § 851 Notice
Hill argues in his pro se supplemental brief that the
Government’s 21 U.S.C. § 851 (2000) notice was inadequate because
it did not identify any prior convictions. To seek enhanced
penalties under 21 U.S.C. § 841(b)(1)(A) (2000), the Government
must file an information giving its notice to seek such penalties
prior to trial or the entry of a plea. See 21 U.S.C. § 851 (2000).
The Government filed an § 851 notice of potential increased
penalties listing Hill’s prior conviction as: “[o]n July 9, 1998,
the defendant pleaded guilty to seven (7) counts of
manufacture/distribution of crack cocaine and received a term of
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imprisonment of seven (7) years and a fine of $25,000.00.” We find
the Government gave Hill adequate notice by fully describing his
prior 1998 guilty plea conviction.
III. Sufficiency of Evidence
Hill argues in his pro se brief that there was
insufficient evidence to sustain his conviction. To determine if
there was sufficient evidence to support a conviction, this court
considers whether, taking the evidence in the light most favorable
to the Government, substantial evidence supports the jury’s
verdict. Glasser v. United States, 315 U.S. 60, 80 (1942).
Substantial evidence is “evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt.” United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). This court
reviews both direct and circumstantial evidence, and permits the
“government the benefit of all reasonable inferences from the facts
proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In resolving issues
of substantial evidence, this court does not weigh evidence or
reassess the factfinder’s assessment of witness credibility. See
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
In order to prove Hill violated 21 U.S.C. § 841(a)(1),
the Government must establish that he knowingly possessed a
controlled substance with the intent to distribute it. United
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States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). Intent to
distribute may be inferred from quantities too large for personal
consumption, Burgos, 94 F.3d at 873, or “from possession of
drug-packaging paraphernalia,” United States v. Fisher, 912 F.2d
728, 730 (4th Cir. 1990).
Hill was the only person at the mobile home where the
cocaine was found in the commode after officers had heard the
commode flush when attempting to execute an arrest warrant on Hill
for a previous drug offense. Fourteen plastic sandwich bags of
cocaine base were found in the bathroom commode. Plastic sandwich
bags of the same type used to package the cocaine were found in the
kitchen, along with digital scales. We thus find there was
sufficient evidence for a jury to find beyond a reasonable doubt
that Hill was guilty of possession with intent to distribute
cocaine base.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Hill’s conviction and sentence. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. We dispense
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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
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