United States v. Dwayne A. Etheridge ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1977
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the District
Dwayne Anthony Etheridge, * of Minnesota.
*
Appellant. * [UNPUBLISHED]
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Submitted: October 23, 1998
Filed: November 17, 1998
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Before RICHARD S. ARNOLD, WOLLMAN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Dwayne Etheridge appeals from his conviction on various charges involving
cocaine. See 21 U.S.C. § 841(a)(1), § 841(b)(1)(B)(ii)(II), § 846. He asserts that the
trial court erred in failing to suppress evidence, in not ensuring that he had had a proper
opportunity to review his presentence report, and in assessing a two-level enhancement
of his sentence pursuant to U.S.S.G. § 3B1.1(c). He also maintains that the evidence
produced at trial was insufficient to support his conviction. We reject these arguments
and affirm the judgment of the trial court1 in all respects.
Mr. Etheridge argues that the warrant that authorized the search of his residence
should not have issued because the evidence produced in support of the application for
it was insufficient for a finding of probable cause. He maintains that much of that
evidence was stale and that the evidence did not in any case establish a likelihood that
evidence of criminal activity would be found in his residence. We disagree. The
affidavit submitted in support of the warrant application, even if the allegedly stale
information is omitted, contains allegations more than sufficient to sustain the warrant's
issuance. It states, among other things, that an officer overheard Mr. Etheridge
inquiring about the whereabouts of a package of his that the officer knew contained
cocaine, and that an accomplice of Mr. Etheridge identified him as the person who had
asked her to receive the package. These facts are themselves enough to make it
probable that Mr. Etheridge was engaged in illicit drug trafficking. Since it is well
known that drug traffickers routinely keep packaging equipment, ledgers, and other
incriminating items in their living quarters, the affidavit provided sufficient reason to
believe that Mr. Etheridge's residence would contain evidence of criminal activity. See
United States v. Hulett, 22 F.3d 779, 781 (8th Cir.), cert. denied, 513 U.S. 882 (1994).
There is no error here.
Nor did the trial court err in assessing a two-level enhancement against
Mr. Etheridge because he was an organizer of a criminal activity under U.S.S.G.
§ 3B1.1(c). The evidence that was produced at trial tended to show that Mr. Etheridge
recruited people to mail drugs to other people whom he had recruited to receive them
and that he instructed his accomplices on how and where to deliver the drugs. These
1
The Honorable Paul A. Magnuson, Chief United States District Judge for the
District of Minnesota.
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facts clearly mark Mr. Etheridge as an organizer. See, e.g., United States v. Horne, 4
F.3d 579, 590 (8th Cir. 1993), cert. denied, 510 U.S. 1138 (1994).
Mr. Etheridge complains that the trial court did not ensure at the sentencing
hearing that he and his counsel had had a proper opportunity to read and discuss the
presentence report, as Fed. R. Crim. P. 32(c)(3)(A) requires. But Mr. Etheridge does
not indicate how that failure prejudiced him. Indeed, he does not even allege that he did
not in fact discuss the presentence report with his counsel. In these circumstances, we
can find no error.
Finally, we have reviewed the trial record in response to Mr. Etheridge's assertion
that the evidence was not sufficient to support his conviction. That record, in fact, is
replete with evidence that he was guilty of the charges against him.
For the reasons indicated, we affirm the trial court's judgment in all respects.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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