United States v. Ward

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4226
LANCELOT WARD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4247
BERNARD GIBSON, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4248
KEVIN COX,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-94-454-PJM)
Argued: December 4, 1998
Decided: March 22, 1999
Before HAMILTON and LUTTIG, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Senior Judge Michael wrote the opin-
ion, in which Judge Hamilton and Judge Luttig joined.
_________________________________________________________________
COUNSEL
ARGUED: Fred Warren Bennett, Greenbelt, Maryland, for Appellant
Ward; Deborah Naomi Abramson, Baltimore, Maryland, for Appel-
lant Gibson; Joseph Edmond Beshouri, Washington, D.C., for Appel-
lant Cox. Sandra Wilkinson, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,
United States Attorney, Stuart A. Berman, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
OPINION
MICHAEL, Senior District Judge:
I.
On October 4, 1996 a jury found Lancelot Ward, Bernard Gibson,
and Kevin Cox guilty of conspiring to distribute and to possess with
an intent to distribute heroin and cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Ward, Gibson, and Cox were indicted follow-
ing a lengthy investigation by the FBI into a drug distribution enter-
prise headed by appellant Gibson's father. The appellants in this case
raise a litany of issues which we address in turn. Because we find no
error in the proceedings below, we affirm.
II.
We turn first to Ward's assertion that the district court erred in sen-
tencing him as a career offender. As a threshold issue, Ward argues
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that the district court lacked authority to correct the sentence it first
imposed on Ward. At Mr. Ward's first sentencing hearing the court
declined to find that Ward was a career offender pursuant to § 4B1.2
of the United States Sentencing Guidelines ("U.S.S.G."). At this first
hearing, the court ruled that Ward's plea of guilty to conspiracy to
commit robbery in Virginia Circuit Court could not serve as a predi-
cate offense. The court found that the conviction was not a "crime of
violence" because Virginia's conspiracy statute does not have as one
of its elements proof of a violent crime. The government, arguing that
the court's determination was wrong as a matter of law, filed a timely
motion pursuant to Fed.R.Crim.P 35(c) to correct the sentence. After
considering the government's motion, the court indicated that at the
time of the first sentence it had not been aware of this court's decision
in United States v. Cook, 26 F.3d 507 (4th Cir.), cert. denied, 513
U.S. 953 (1994). We held in Cook that under narrow circumstances,
a sentencing court may look beyond the elements of the predicate
offense to charging papers and jury instructions to determine whether
the offense is a "violent felony." 26 F.3d at 508-509.
Rule 35(c) of the Federal Rules of Criminal Procedure provides for
correction of a sentence by the sentencing court:"The court, acting
within 7 days after the imposition of sentence, may correct a sentence
that was imposed as a result of arithmetical, technical, or other clear
error." A district court's authority to correct a sentence imposed as a
result of "clear error" is limited to "cases in which an obvious error
or mistake has occurred in the sentence, that is, errors which would
almost certainly result in a remand of the case to the trial court for
further action under Rule 35(a)." United States v. Waters, 84 F.3d 86
(2d Cir. 1996) (quoting United States v. Abreu-Cabrera, 64 F.3d 67,
72 (2d Cir. 1995)). Because the district court's first imposition of sen-
tence was based on a misperception of the governing law in this Cir-
cuit, we find that the district court was authorized to correct the
sentence previously given.
In resentencing Ward, the district court ruled that Ward's convic-
tion for conspiracy to commit robbery was a "crime of violence." This
conspiracy conviction coupled with the appellant's 1982 conviction
for armed bank robbery brought the career offender guideline into
play. To merit a sentence as a career offender, a defendant must be
(1) at least eighteen years old at the time of the offense, (2) guilty,
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presently, of a "felony that is either a crime of violence or a controlled
substance offense," and (3) guilty, historically, of "at least two prior
felony convictions of either a crime of violence or a controlled sub-
stance offense." U.S.S.G. § 4B1.1. Ward takes issue only with the
sentencing court's determination that his conspiracy conviction was
a "crime of violence".
The guidelines define "a crime of violence" as a felony that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another or (ii) is
burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(1). The application notes indicate that a "`crime of
violence' includes ... robbery." U.S. SENTENCING GUIDELINES MANUAL
§ 4B1.2 application note 1. The appellant argues that the district court
impermissibly found that the conspiracy conviction was a crime of
violence because to make this determination, the court had to look
beyond the elements of Virginia's conspiracy statute.1 Ward pled
guilty to § 18.2-22 of the Code of Virginia which provides:
If any person shall conspire, confederate or combine with
another, either within or without this Commonwealth, to
commit a felony within this Commonwealth, or if he shall
so conspire, confederate or combine with another within this
Commonwealth to commit a felony either within or without
this Commonwealth, he shall be guilty of a felony....
No explicit element of this statutory provision includes the use,
attempted use, or threatened use of physical force against the person
of another. In ruling that appellant's conspiracy conviction was a
crime of violence, the district court looked to the object of the con-
spiracy, robbery. The object of the conspiracy was distilled from the
indictment which charged that Ward "did conspire, confederate, and
_________________________________________________________________
1 Ward does not argue that a robbery conviction does not constitute a
crime of violence.
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combine with another person to commit a felony in this State, to-wit:
Robbery."
To determine whether a prior felony conviction meets the Sentenc-
ing Guideline's definition of a crime of violence, a court must deter-
mine whether the elements of the prior offense involved conduct that
presented a serious risk of physical injury to another. United States
v. Kirksey, 138 F.3d 120, 124 (4th Cir.), cert. denied, 513 U.S. 953
(1994). This determination must be made using a categorical
approach. Taylor v. United States, 495 U.S. 575, 600, 602 (1990). The
categorical approach generally limits the court's inquiry to the fact of
conviction and the statutory elements of the prior offense. Id. This
prevents district courts from having to conduct complex mini-trials in
an attempt to unearth relevant facts.
This court has unambiguously acknowledged that in keeping with
the categorical approach, a sentencing court may look beyond the ele-
ments of the charged offense in a limited class of cases to determine
whether that offense is a "crime of violence." United States v.
Coleman, 158 F.3d 199 (4th Cir. 1998); United States v. Kirksey, 138
F.3d 120 (4th Cir.), cert. denied, 119 S. Ct. 122 (1998); United States
v. Cook, 26 F.3d 507 (4th Cir.), cert. denied, 513 U.S. 953 (1994).
Though this court has not had occasion to decide whether a sentenc-
ing court may look to the object of a conspiracy to determine if the
conspiracy is a crime of violence, our decision in Kirksey is instruc-
tive. In Kirksey the court addressed the question of whether convic-
tions in Maryland state courts for common law assault and battery
qualify as predicate crimes of violence. 138 F.3d at 120. Because
Maryland recognizes common law crimes, no statute defines their ele-
ments and it is not possible to determine whether an assault and bat-
tery conviction is a crime of violence by referring solely to the
elements of the offense.2 Id . We reasoned that the categorical
approach mandated by Taylor is accommodated where the defen-
dant's violent conduct was revealed by consulting the charging docu-
_________________________________________________________________
2 Common law assault and battery permit a defendant to be convicted
for behavior that does not necessarily constitute a"crime of violence."
For example, one could be convicted of assault and battery in Maryland
for offensively touching the person of another.
5
ments. This common sense approach also applies to a conspiracy
conviction.
As with the crimes addressed by this court in Coleman, Kirksey,
and Cook, the Virginia conspiracy statute does not fully define the
criminal act. Before one may be convicted of a conspiracy charge, it
must always be asked: "conspiracy to do what?" United States v.
Fiore, 983 F.2d 1, 3 (1st Cir. 1992), cert. denied, 507 U.S. 1024
(1993). Though Virginia's conspiracy statute does not explicitly
include as an element "the use, attempted use, or threatened use of
physical force against the person of another," that element logically
must be proven to support a conviction for conspiracy to commit a
violent felony. United States v. Preston, 910 F.2d 81, 86 (3d Cir.
1990), cert. denied, 498 U.S. 1103 (1991). Simply because some con-
spiracy convictions will not be predicate offenses, Taylor's categori-
cal approach does not require a finding that all conspiracy convictions
are exempt from serving as predicate offenses. Such a rule would
ignore the policy underlying Taylor's categorical approach as one
meant "to capture all offenses of a certain level of seriousness that
involve violence or an inherent risk thereof, and that are likely to be
committed by career offenders." Taylor, 495 U.S. at 590; see also
United States v. Fiore, 983 F.2d 1 (1st Cir. 1992). To give full effect
to this policy, it is critical to determine the object of the conspiracy.
We hold, therefore, that a sentencing court can go beyond the gen-
eral elements of a criminal conspiracy statute to determine whether a
violent felony was the object of the conspiracy. When presented with
a prior conviction for conspiracy, a sentencing court can determine
the object of the conspiracy from the record of conviction, the charg-
ing document, and the jury instructions. Together with the 1982 con-
viction for armed bank robbery, Ward's conviction of conspiracy to
commit robbery provides the district court with a proper basis to sen-
tence Ward as a career offender.
III.
Ward also contends that the district court erred in denying his
motion to suppress evidence seized pursuant to a search warrant and
erred in attributing 472 grams of heroin to him for sentencing pur-
poses. We affirm the district court on both issues.
6
A.
Ward contends that federal agents violated the knock and announce
rule by waiting 60 seconds and then forcibly entering his home.
Absent clear error, this court will not disturb a district court's factual
findings when made on a motion to suppress. United States v. Rusher,
966 F.2d 868, 873 (4th Cir. 1992). We review de novo the ultimate
suppression decision. Id. On the morning of December 7, 1994, law
enforcement agents arrived at Ward's home and executed a search
warrant based on probable cause that documentary evidence relating
to Ward's involvement in the drug conspiracy under investigation
would be found. Agent Louis Luciano, the agent who made entry, tes-
tified at the suppression hearing that he knocked on the door with his
foot at intervals of 10 to 15 seconds while yelling"FBI search war-
rant" after each knock. Agent Luciano stated that he waited 60 sec-
onds before entering forcibly. The district court also heard from agent
Lisa Nielsen who corroborated Luciano's account.
The knock and announce requirement is found in 18 U.S.C. § 3109.
Under § 3109, a law enforcement officer may forcibly enter a house
in order to execute a search warrant only "if, after notice of his
authority and purpose, he is refused admittance." Based on the testi-
mony of agents Luciano and Nielsen, the district court found that the
60 second waiting period was reasonable and there is nothing in the
record to indicate that this determination was clearly erroneous.
Appellant Ward has a fall back position. Ward contends that the
agents waited 60 seconds in compliance with a "policy" whereby
agents uniformly knock, announce, and enter after 60 seconds. It is
Ward's position that such a "policy" is not in accord with caselaw
requiring a case-by-case determination as to whether the length of
time agents wait before entering is sufficient to establish that the
agents were refused admittance. It is the rule in this circuit that "the
time which must elapse after knocking and announcing their identity
and purpose ... before breaking and entering varies with the exigen-
cies of each case." United States v. Jackson , 585 F.2d 635 (4th Cir.
1978) (quoting United States v. Phelps, 490 F.2d 644, 647 (9th Cir.
1974), cert. denied, 419 U.S. 836 (1974)). Any purported "policy"
that does not account for this rule would be troublesome. To support
the existence of a uniform 60 second wait policy, appellant points
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only to the testimony of agent Luciano stating "...we were told at
around that time that we had to wait 60 seconds, and it was becoming
a policy at that point...." There is no other evidence indicating that the
FBI had developed such a policy. We, however, need not reach this
potentially troubling issue because it is evident from the record that
the court below independently examined the circumstances and found
the 60 second waiting period reasonable. This judgment is not clearly
erroneous.
B.
In imposing Ward's sentence, the district court found that the
appellant was responsible for 555 grams of heroin. The court specifi-
cally found that Ward personally possessed a total of 155 grams and
attributed an additional 400 grams to Ward as reasonably foreseeable.
It is this attribution of 400 grams of heroin that Ward now challenges.
Section 1B1.3(a)(1) of the U.S.S.G. permits courts to attribute to a
defendant the amount of drugs that a co-conspirator manufactured or
distributed where such amount is reasonably foreseeable by the defen-
dant. United States v. Moore, 29 F.3d 175, 178 (4th Cir. 1994);
United States v. Irvin, 2 F.3d 72, 77-78 (4th Cir. 1993), cert. denied,
510 U.S. 1125 (1994). One of Ward's co-conspirators, Michael Lan-
caster, testified at trial that he transported from New York at least a
half a kilogram of heroin as a part of the drug operation run by appel-
lant Gibson's father, Bernard Gibson, Sr. Ward played an active role
in this criminal enterprise. Mr. Lancaster also testified that he and
Ward sold heroin together in Washington, D.C. There is no doubt that
Mr. Lancaster was a co-conspirator of Ward's and there is likewise
no doubt that a conspirator is responsible for the acts of others in fur-
therance of the conspiracy which acts are known or reasonably fore-
seeable to him. Based on Lancaster's testimony at trial, the district
court found that at least 400 grams of the half a kilogram transported
by Lancaster were reasonably foreseeable to Ward. After a review of
the trial transcript, we are not able to say that the district court's fac-
tual determination is clearly erroneous. United States v. Goff, 907
F.2d 1441, 1444 (4th Cir. 1990).
IV.
Appellant Gibson argues that the district court erred in admitting
evidence of his purchase of marijuana, admitting a gun found in his
8
apartment at the time of his arrest, in sentencing him as a manager or
supervisor, and attributing 8 kilograms of cocaine to him as reason-
ably foreseeable. Because we find no merit in Gibson's contentions
of error, we affirm the district court's rulings.
At trial the government sought the introduction of testimony by a
cooperating witness, Lancaster, indicating that Gibson bought mari-
juana from him. Gibson contends that the court's decision to admit
this evidence was error because any probative value is outweighed by
undue prejudice. The government sought introduction of this testi-
mony to shed light on the relationship between Gibson and his co-
conspirator, Lancaster. At trial, the court permitted defense counsel
the opportunity to engage in voir dire of Lancaster. Lancaster stated
that he sold marijuana to Gibson for personal use during the time
frame of the cocaine and heroin conspiracy for which Gibson was on
trial. Because of this overlap in time and because the evidence estab-
lished the nature of the relationship between Gibson and Lancaster,
the court admitted the testimony. We review a district court's eviden-
tiary rulings under an abuse of discretion standard. United States v.
Grimmond, 137 F.3d 823 (4th Cir. 1998). We cannot find that this
decision was an abuse of discretion.
Gibson next asserts that evidence of his gun ownership should not
have been admitted. This court has held that the"admission of hand-
guns into evidence in drug cases has been consistently upheld as rele-
vant to the issues raised by such cases." United States v. Collazo, 732
F.2d 1200 (4th Cir. 1984). Guns are tools of the drug trade and are
commonly recognized articles of narcotics paraphernalia. United
States v. Ricks, 882 F.2d 885 (4th Cir. 1989); United States v. Soto,
959 F.2d 1181, 1187 (2d Cir. 1992). When government agents entered
Gibson's apartment, a Rolex watch, a wad of $1,055, and a hand gun
were located. These items are all indicia of drug dealing and as such
the district court's ruling that the probative value of the gun evidence
outweighed any undue prejudice is not an abuse of discretion. Gibson,
however, argues that there was no evidence at trial linking the hand
gun to the drug conspiracy and states that the evidence should have
been excluded because without a link, the gun evidence is at best mar-
ginally probative. The appellant suggests that the sole basis for the
admission of the gun was that gun evidence is per se admissible in
drug cases. There is no per se rule in this circuit requiring district
9
courts to admit gun evidence in drug conspiracies. The Federal Rules
of Evidence, however, evince a strong preference for the admission
of all relevant evidence. Evidence of gun possession and ownership
is logically relevant in many drug conspiracies. We leave it to the dis-
trict courts to determine on a case by case basis whether the potential
relevance of the gun evidence is outweighed by unfair prejudice or is
barred by any other rule of evidence.
V.
We have reviewed carefully the issues raised by appellant Gibson
relating to the district court's imposition of sentence and the issues
raised by appellant Cox and find them to be without merit.
For the foregoing reasons, the judgement of the district court is
affirmed.
AFFIRMED
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