United States v. Marcus Gibbs

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4743
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS GIBBS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:10-cr-01104-RMG-11)
Argued: October 31, 2013 Decided: November 21, 2013
Before DAVIS and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion. Judge Davis wrote a
separate opinion concurring in part and concurring in the
judgment.
ARGUED: J. Joseph Condon, Jr., North Charleston, South Carolina,
for Appellant. Nathan S. Williams, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF:
William N. Nettles, United States Attorney, Columbia, South
Carolina, Peter T. Phillips, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On May 11, 2011, a federal grand jury sitting in the
District of South Carolina returned a ten-count superseding
indictment against thirteen people, including appellant, Marcus
Gibbs (Gibbs). Gibbs was charged with: conspiracy to possess
with intent to distribute five kilograms or more of cocaine, 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count One);
conspiracy to commit money laundering, 18 U.S.C.
§§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(h), and 1957 (Count
Three); possession with intent to distribute 500 grams or more
of cocaine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count
Four); possession with intent to distribute five kilograms or
more of cocaine, id. §§ 841(a)(1) and 841(b)(1)(A) (Count Five);
being a felon in possession of a firearm, 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e) (Count Six); and possession
of a firearm during and in relation to a drug trafficking crime,
id. § 924(c)(1)(A)(i) (Count Seven).
Following a jury trial, Gibbs was found guilty of Count One
and Counts Three through Six, but found not guilty of Count
Seven. He was sentenced to a total of 360 months’ imprisonment.
On appeal, Gibbs challenges: (1) the district court’s denial of
his motions to suppress; (2) the admission of certain evidence
at trial; and (3) the sentence imposed by the district court.
We affirm.
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I
Legal determinations underlying a district court’s
suppression rulings are reviewed by this court de novo, and
factual findings relating to such rulings are reviewed for clear
error. United States v. Allen, 631 F.3d 164, 171 (4th Cir.
2011). Because the district court denied Gibbs’ motions to
suppress below, we construe the evidence in the light most
favorable to the government. United States v. Branch, 537 F.3d
328, 337 (4th Cir. 2008).
The district court held a suppression hearing for Gibbs on
October 11, 2011. The credible evidence introduced at that
hearing demonstrated as follows.
Beginning in 2010, the Drug Enforcement Administration
(DEA) began an investigation into a multi-kilogram cocaine
trafficking organization that operated out of Charleston, South
Carolina and involved the alleged transporting of cocaine from
Mexico and Atlanta to Charleston. DEA agents initiated a number
of court-authorized wiretaps of several individuals involved in
the organization and intercepted numerous phone calls indicating
the transportation of cocaine from Mexico and Atlanta to
Charleston and the transportation of cash proceeds from
Charleston to Atlanta and Mexico.
On July 12, 2010, DEA agents intercepted a series of cell
phone calls from targets in the cocaine trafficking organization
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indicating a plan to deliver $5,000. In the course of these
intercepted cell phone calls, an unidentified male, later
identified as Gibbs, agreed to bring the $5,000 to the home of
one of the major players in the organization, Pedro Ochoa
(Ochoa). Based on these intercepted cell phone calls, a DEA
agent prepared an affidavit (the Affidavit) and requested a
search warrant from a United States Magistrate Judge authorizing
the DEA agents to utilize Global Positioning System (GPS)
monitoring on the cell phone used by Gibbs.
The GPS data on Gibbs’ cell phone revealed that, on July
21, 2010, Gibbs traveled by car from Charleston to Conyers,
Georgia, a town located outside of Atlanta. The GPS data also
revealed that, approximately one hour after arriving in Conyers,
Gibbs began to head in a direction toward Charleston. In light
of the known role of Atlanta as a key location for the cocaine
trafficking organization, Gibbs’ recent delivery of $5,000 to
Ochoa, and Gibbs’ one-day trip to the Atlanta area and apparent
rapid return toward Charleston, the DEA agents suspected Gibbs
was transporting drugs. To keep its investigation of the
organization a secret, the DEA agents contacted the City of
Charleston police department and requested that a stop of Gibbs’
vehicle be effected if the opportunity arose when Gibbs arrived
back in Charleston.
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At approximately 9:50 p.m. on July 21, 2010, Officer Thomas
Bailey (Officer Bailey) of the Charleston Police Department
observed Gibbs’ vehicle make a “wide turn” off of Highway 17
onto Main Road. The turn was “wide enough” to “grab[]” Officer
Bailey’s attention. At this point, Officer Bailey began to
follow Gibbs’ vehicle in his patrol car. Officer Bailey saw
Gibbs’ vehicle “slowly drift toward the double yellow lines.”
Before Gibbs’ vehicle crossed the yellow lines, he “quickly
recorrected towards the center of the lane.” These
circumstances led Officer Bailey to believe that Gibbs may be
driving while impaired. Consequently, a traffic stop was
initiated.
Officer Bailey approached Gibbs’ vehicle and asked Gibbs
for his license and registration. While Gibbs was looking for
these items, Officer Bailey detected the smell of burnt
marijuana. Gibbs was asked if he had been smoking marijuana and
he responded in the affirmative. After initially refusing to
give consent, Gibbs consented to a search of the vehicle.
During an initial search of the vehicle, approximately one gram
of marijuana was recovered. At that point, Gibbs was placed
under arrest. During a subsequent search of the vehicle
pursuant to a search warrant, four cell phones, including the
one Gibbs used to help arrange the delivery of the $5,000 to
Ochoa, were recovered. A search of this cell phone revealed
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cell phone calls and text messages between Gibbs and Ochoa and
Gibbs and another major player in the organization, Augustine
Pineda (Nene). Further investigation of Gibbs revealed that he
was a major cocaine distributor in Charleston.
A
Gibbs argues that the DEA agents lacked probable cause to
seek the issuance of a search warrant authorizing the GPS
monitoring of his cell phone.
Subject to certain exceptions that are not applicable in
this case, police officers must obtain a warrant to conduct a
search or seizure. U.S. Const. amend IV; United States v.
Kelly, 592 F.3d 586, 589 (4th Cir. 2010). An affidavit
supporting a warrant that authorizes a search or seizure “must
provide the magistrate with a substantial basis for determining
the existence of probable cause” in light of the totality of the
circumstances. Illinois v. Gates, 462 U.S. 213, 239 (1983).
“[T]o establish probable cause, the facts presented to the
magistrate need only ‘warrant a man of reasonable caution’ to
believe that evidence of a crime will be found.” United States
v. Williams, 974 F.2d 480, 481 (4th Cir. 1992) (per curiam)
(quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality
opinion)). On appeal, we give “[g]reat deference . . . [to] a
magistrate’s assessment of the facts when making a determination
of probable cause.” Williams, 974 F.2d at 481.
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In this case, probable cause supported the issuance of a
search warrant authorizing the GPS monitoring of Gibbs’ cell
phone. The Affidavit sets forth with sufficient particularity
the evidence uncovered by the DEA agents concerning the
extensive drug dealing activities of Ochoa and Nene, among
others. The Affidavit also recounted Gibbs’ role concerning the
delivery of $5,000 to Ochoa. The Affidavit established that the
use of GPS monitoring would likely reveal information about the
nature and extent of the cocaine trafficking organization,
including the location of drugs and/or drug proceeds. We hold
that the Affidavit provided the necessary probable cause to
allow for GPS monitoring of Gibbs’ cell phone. See Gates, 462
U.S. at 238-39 (“And the duty of a reviewing court is simply to
ensure that the magistrate had a substantial basis for . . .
conclud[ing] that probable cause existed.”) (citation and
internal quotation marks omitted) (alteration in original). In
so holding, we note that the DEA agents were not seeking to go
on a fishing expedition, because the search warrant itself
contained a thirty-day time limitation, the place searched was a
cell phone, and the item to be seized was the location
information emitted from that cell phone.
B
Gibbs next argues that the traffic stop was improper
because there was no reasonable suspicion to support the stop.
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A traffic stop, whether based on probable cause or
reasonable suspicion, must be reviewed under the standard set
forth in Terry v. Ohio, 392 U.S. 1 (1968). United States v.
Digiovanni, 650 F.3d 498, 506 (4th Cir. 2011). Under this
standard, a police officer’s decision to stop a vehicle must be
“justified at its inception,” and “the police officer’s
subsequent actions [must be] reasonably related in scope to the
circumstances that justified the stop.” Id.
“[T]he decision to stop an automobile is reasonable where
the police have probable cause to believe that a traffic
violation has occurred.” Whren v. United States, 517 U.S. 806,
810 (1996). A traffic stop also is constitutionally permissible
when the police officer has a reasonable suspicion, based on
specific and articulable facts, to believe that “criminal
activity may be afoot.” Terry, 392 U.S. at 30. Thus, a Fourth
Amendment violation occurs where “there is neither probable
cause to believe nor reasonable suspicion that the car is being
driven contrary to the laws governing the operation of motor
vehicles or that either the car or any of its occupants is
subject to seizure or detention in connection with the violation
of any other applicable law.” Delaware v. Prouse, 440 U.S. 648,
650 (1979). Whether probable cause or reasonable suspicion
exists to justify a traffic stop is determined by examining the
evidence under the totality of the circumstances. United States
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v. Sowards, 690 F.3d 583, 588 (4th Cir. 2012) (probable cause);
United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011)
(reasonable suspicion).
In this case, the stop of Gibbs’ vehicle was supported by
reasonable suspicion that Gibbs was driving while impaired.
Gibbs made a wide turn onto Main Road and then proceeded to
drift slowly toward the double yellow lines before quickly
“recorrecting” the vehicle to the center of the lane. Such
erratic driving could not be excused on account of either poor
road or poor weather conditions. Under such circumstances, a
stop of the vehicle for further investigation was justified.
Cf. Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 771
(6th Cir. 2004) (finding reasonable suspicion where defendant
“weaved twice to the left to touch the dividing line in a fairly
short span” and “was leaning over to the right inside his car”);
United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir. 1999)
(finding reasonable suspicion when defendant’s motor home
“drift[ed] onto the shoulder twice within a quarter mile without
any adverse circumstances like road or weather conditions to
excuse or explain the deviation”).
In any event, Officer Bailey also had reasonable suspicion
that Gibbs was involved in the transportation of drugs. Such
reasonable suspicion was supported by the following facts: (1)
Officer Bailey had been made aware of the extensive cocaine
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trafficking organization and Gibbs’ role in it (as known at that
time); (2) Officer Bailey knew the significance of Atlanta to
the organization; and (3) on the day of the stop, Gibbs had just
driven to the Atlanta area from Charleston, stayed in the
Atlanta area for less than an hour, and was returning to
Charleston. Under these circumstances, a traffic stop for
further investigation into the distribution of drugs was
justified. See United States v. Arvizu, 534 U.S. 266, 273
(2002) (noting that reasonable suspicion requires a police
officer to have a “particularized and objective basis for
suspecting legal wrongdoing” based on the totality of the
circumstances and that police officers may “draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them
that might well elude an untrained person”) (citation and
internal quotation marks omitted). Accordingly, Gibbs’
challenge to the traffic stop must be rejected. 1
1
Once Officer Bailey smelled marijuana, he was permitted to
arrest Gibbs. See Maryland v. Pringle, 540 U.S. 366, 370 (2003)
(noting that, under the Fourth Amendment, if supported by
probable cause, an officer may make a warrantless arrest of an
individual in a public place). Because Gibbs’ arrest was
lawful, the seizure and search of his cell phones was lawful as
well. See United States v. Murphy, 552 F.3d 405, 411 (4th Cir.
2009) (holding that officers may seize cell phones incident to
an arrest and retrieve text messages and other information
without a search warrant). We note, however, the DEA agents
prudently obtained a search warrant to search the cell phones.
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II
We review the district court’s decision to admit a
particular item of evidence for an abuse of discretion. United
States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010); United
States v. Young, 248 F.3d 260, 266 (4th Cir. 2001).
Gibbs argues that the district court abused its discretion
by admitting prejudicial “other crimes” evidence. The facts
surrounding this argument are as follows.
During the trial, several individuals who were not charged
in the superseding indictment testified concerning Gibbs’
extensive drug dealing activities. In particular, Nene’s
nephew, Timothy Maldonado (Maldonado), testified that, in late
2005 or early 2006, he started working for Nene as a translator.
His responsibilities increased some time in 2006 when he began
to receive money from Gibbs as part of Gibbs’ cocaine purchases
from Nene. At Nene’s direction, Gibbs delivered the money to
Maldonado at an apartment in Atlanta, and, once the money was
counted, Gibbs would travel to another location in Atlanta to
pick up the cocaine. Maldonado testified that, during an
eighteen-month stretch between 2006 and 2008, Gibbs purchased
twenty-eight kilograms per month. Maldonado also testified
that, some time in 2007, he sold Gibbs a gun that was seized
from Gibbs’ residence at 3555 Woodbridge Drive in Charleston on
September 1, 2010, pursuant to a search warrant.
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Benjamin Jenkins (Jenkins) testified concerning how he and
Gibbs secured Nene as a source of cocaine some time in 2003.
Jenkins also testified concerning particular instances in which
he and Gibbs purchased cocaine from Nene.
Anthony Gordon (Gordon) testified that he met Gibbs in late
2005 or early 2006. A few days after meeting Gibbs, Gordon
purchased five kilograms of cocaine from him. In early 2006,
Gordon sold Gibbs five to seven kilograms of cocaine. Finally,
Gordon testified that he purchased three kilograms of cocaine
from Gibbs in 2007.
Gibbs contends that the district court erred when it
admitted portions of the testimony of Maldonado, Jenkins, and
Gordon. In particular, he challenges the admission of any
evidence related to events that occurred prior to January 1,
2007, the date the government alleged the cocaine conspiracy
began. 2
Rule 404(b) excludes evidence of prior bad acts offered “to
prove the character of a person in order to show action in
conformity therewith.” Fed. R. Evid. 404(b) (2011). The pre-
2007 evidence of dealings between Gibbs and Maldonado, Gibbs,
Jenkins, and Nene, and Gibbs and Gordon was evidence of
uncharged conduct that arose out of the same course of dealing
2
The indictment awkwardly alleges that the cocaine
conspiracy began “at least in or around January 2007.”
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as the charged conspiracy. United States v. Kennedy, 32 F.3d
876, 885 (4th Cir. 1994). We noted in Kennedy that evidence of
activities “occurring before the charged time frame of the
conspiracy does not automatically transform that evidence into
‘other crimes’ evidence.” Id. Rather, evidence of prior
dealings may be admissible to put the drug distribution scheme
in context or to complete the story of the crime charged. Id.
at 885-86. The challenged evidence here simply allowed the jury
to understand the background of the conspiracy and the extent of
the relationship and dealings between Gibbs and other relevant
players in the conspiracy. Further, the evidence was not
unfairly prejudicial to Gibbs’ case. See United States v.
Williams, 445 F.3d 724, 730 (4th Cir. 2006) (holding that
evidence should be excluded under Rule 403 as unfairly
prejudicial “when there is a genuine risk that the emotions of a
jury will be excited to irrational behavior” and the risk is
“disproportionate to the probative value of the offered
evidence”) (citation and internal quotation marks omitted).
Thus, the district court did not err in admitting the challenged
pre-2007 evidence.
III
We review sentences for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
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United States, 552 U.S. 38, 51 (2007). Miscalculation of the
Guidelines range is a significant procedural error. Id. In
assessing whether the district court has properly applied the
Guidelines, we review factual findings for clear error and legal
conclusions de novo. United States v. Osborne, 514 F.3d 377,
387 (4th Cir. 2008). We will “find clear error only if, on the
entire evidence, we are left with the definite and firm
conviction that a mistake has been committed.” United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (citation,
alteration, and internal quotation marks omitted).
In preparation for sentencing, a United States Probation
Officer (the Probation Officer) prepared a presentence report.
The Probation Officer found that Gibbs was accountable for 334
grams of crack and 511 kilograms of cocaine. This finding meant
that Gibbs’ Base Offense Level for sentencing purposes on the
drug counts was 38. United States Sentencing Commission,
Guidelines Manual (USSG), § 2D1.1(c)(1) (2010). Gibbs received:
(1) a two-level enhancement pursuant to USSG § 2D1.1(b)(1) for
possession of a dangerous weapon; (2) a four-level enhancement
pursuant to USSG § 3B1.1(a) for being an organizer or leader of
a criminal activity involving five or more participants or was
otherwise extensive; and (3) a two-level enhancement for
obstruction of justice pursuant to USSG § 3C1.1. As such, his
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Total Offense Level on the drug counts was 46. 3 Coupled with a
Criminal History Category of V, the Sentencing Guidelines called
for an advisory sentence of life imprisonment.
At sentencing, the district court agreed with the Probation
Officer’s methodology in calculating Gibbs’ Total Offense Level
of 46 and Criminal History Category of V. After considering the
factors in 18 U.S.C. § 3553, the district court sentenced Gibbs
to concurrent terms of 360 months’ imprisonment on the drug
counts, a concurrent term of 240 months’ imprisonment on the
money laundering count, and a concurrent term of 120 months’
imprisonment on the gun count, for a total sentence of 360
months’ imprisonment.
A
Gibbs argues that the district court clearly erred in
determining his base offense level by incorrectly calculating
the amount of drugs attributable to him. The Probation
Officer’s finding that Gibbs was accountable for 334 grams of
crack and 511 kilograms of cocaine was based on the following
evidence.
On August 31, 2010, DEA agents, along with members of the
City of Charleston Police Department, conducted a buy/bust
operation using a confidential source (CS) who ordered cocaine
3
Under USSG § 3D1.2(c), the drug counts were grouped with
the money laundering and gun counts for sentencing purposes.
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from Sydney Waiters (Waiters). During the course of the
operation, Waiters got into a black Ford F-350 driven by Gibbs.
Tremayne Ford (Ford) was a passenger. Waiters then called the
CS and told him/her to meet at an Applebee’s to conduct a
transaction at Gibbs’ direction. At the Applebee’s, Gibbs,
Waiters, and Ford were arrested. At the scene, the law
enforcement authorities recovered 499 grams of cocaine and a .45
caliber handgun.
As a result of the buy/bust operation, later that day, the
DEA agents set up surveillance at Gibbs’ home at 3555 Woodbridge
Drive in Charleston. At approximately 11:00 p.m., a white Jeep
Liberty arrived at the home. Richard and Leslie Ann Gaillard
got out of the vehicle and went into the residence. Shortly
thereafter, they left the residence pulling a wheeled cooler.
After the Gaillards left the residence in the vehicle, the DEA
agents effectuated a traffic stop. After consent to search was
given, the DEA agents recovered approximately 459 grams of
cocaine and approximately 334 grams of crack in the cooler.
The following day, the DEA agents executed a search warrant
at Gibbs’ residence. There, they found approximately twelve
kilograms of cocaine and a firearm registered to Maldonado.
As noted earlier, during Gibbs’ trial, numerous individuals
testified concerning their drug dealings with Gibbs. Of note
here, Maldonado testified that, during an eighteen-month stretch
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between 2006 and 2008, Gibbs purchased twenty-eight kilograms
per month, for a total of 504 kilograms of cocaine.
At sentencing, the government need only establish the
amount of drugs involved in an offense by a preponderance of the
evidence. United States v. Cook, 76 F.3d 596, 604 (4th Cir.
1996). “In determining the amount of drugs attributable to a
defendant convicted of drug conspiracy, the district court may
consider relevant information that is prohibited from being
introduced at trial . . . . Further, the district court may
attribute to the defendant the total amount of drugs involved in
the conspiracy.” United States v. Randall, 171 F.3d 195, 210
(4th Cir. 1999); see also United States v. Wilkinson, 590 F.3d
259, 269 (4th Cir. 2010) (“[A] sentencing court may give weight
to any relevant information before it, including uncorroborated
hearsay, provided that the information has sufficient indicia of
reliability to support its accuracy.”).
In this case, the district court did not clearly err when
it determined that Gibbs was accountable for 511 kilograms of
cocaine and 334 grams of crack. The drug amounts found by the
district court were on the conservative side, given the evidence
that numerous individuals had drug dealings with Gibbs involving
amounts that, when totaled, far exceeded the total drug amount
found by the district court. The district court cautiously took
a conservative view of the evidence to avoid any issue
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concerning double counting. Nevertheless, Gibbs argues that
Maldonado’s testimony was not credible. The district court
found Maldonado’s testimony to be “very credible,” and such a
credibility determination is entitled to “great deference,”
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009)
(citation and internal quotation marks omitted). There is
nothing in the record that undermines this determination.
Gibbs also argues that some of Maldonado’s testimony
concerning cocaine amounts related to pre-2007 conduct.
However, the Sentencing Guidelines make clear that the acts and
omissions for which Gibbs was accountable included all those
that were “part of the same course of conduct or common scheme
or plan as the offense of conviction.” USSG § 1B1.3(a)(2).
That phrase has been interpreted to be “broader than, rather
than coterminous with, the definition of a ‘conspiracy’ as that
term of art is used in the overall criminal law.” David v.
United States, 134 F.3d 470, 476 (1st Cir. 1998). Accordingly,
“conduct can still be relevant, though it may be outside the
time frame of the charged conspiracy.” United States v.
Barbour, 393 F.3d 82, 92 (1st Cir. 2004). There is nothing in
the record to undermine the district court’s relevant conduct
determination. Maldonado’s testimony concerning Gibbs’ pre-2007
cocaine purchases related to conduct that was clearly part of
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the same course of conduct as Gibbs’ cocaine conspiracy
conviction.
B
Gibbs argues that the district court clearly erred in
enhancing his offense level four levels under USSG § 3B1.1(a)
for his role in the offense. The Probation Officer’s finding
that Gibbs was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive was based on the following evidence.
Gibbs was responsible for coordinating the transportation
of money and cocaine between Charleston, Atlanta, and Mexico.
In furtherance of these responsibilities, Gibbs directly
contacted Nene, his cocaine source in Mexico. Once the cocaine
was transported to the Charleston area, Gibbs contacted local
dealers and distributed the cocaine to them for distribution.
Based on a ledger found in Gibbs’ home, Gibbs fronted cocaine to
numerous dealers, who in turn paid Gibbs once the cocaine was
sold. At least ten dealers were listed on the ledger as owing
Gibbs money.
Section 3B1.1(a) of the Sentencing Guidelines directs a
district court to enhance a defendant’s offense level four
levels “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.” USSG § 3B1.1(a). In assessing whether a
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defendant played an aggravating role in the offense of
conviction, “the key inquiry is whether the defendant’s role was
that of an organizer or leader of people, as opposed to that of
a manager over the property, assets, or activities of a criminal
organization.” United States v. Llamas, 599 F.3d 381, 390 (4th
Cir. 2010) (citation and internal quotation marks omitted).
In this case, the district court did not clearly err when
it determined that Gibbs was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive. The evidence in the record demonstrates
that the cocaine conspiracy involved five or more participants
and that Gibbs exercised a leadership role in it by arranging
the purchase of cocaine from Nene, fronting cocaine to dealers,
and controlling the flow of money. Such evidence belies Gibbs’
argument that he did not control the actions of others and amply
supports the application of the USSG § 3B1.1(a) enhancement.
See United States v. Jones, 356 F.3d 529, 538 (4th Cir. 2004)
(affirming application of USSG § 3B1.1(a) enhancement where
defendant recruited dealers, controlled allocation of drugs to
dealers, determined how profits were divided, and handled the
logistics and arrangements for the transactions); United States
v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997) (affirming
application of USSG § 3B1.1(a) enhancement where defendant
“directed the activities of other members of the drug ring and
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facilitated the criminal enterprise by renting apartments,
acquiring pagers, hiring a lawyer for a codefendant, and paying
for the bond of another codefendant”).
C
Finally, Gibbs argues that the district court clearly erred
in enhancing his offense level two levels for obstruction of
justice under USSG § 3C1.1. The Probation Officer’s finding
that Gibbs obstructed justice was based on the following
evidence.
Following their August 31, 2010 arrests, Gibbs asked
Waiters if he would claim ownership of the cocaine found in the
Ford F-350 if Gibbs agreed to claim ownership of the gun found
in the truck. As part of the deal, Gibbs would pay Waiters
$10,000 and pay the cost of Waiters’ attorney.
An enhancement for obstruction of justice is proper if:
(1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense.
USSG § 3C1.1. The enhancement applies in a variety of
situations including where the defendant threatens, intimidates,
or otherwise unlawfully influences “a co-defendant, witness, or
juror, directly or indirectly, or attempt[s] to do so.” USSG
§ 3C1.1 comment. (n.4(A)).
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In this case, the district court did not clearly err when
it determined that Gibbs obstructed justice. Gibbs attempted to
obstruct justice by trying to convince Waiters to accept
responsibility for all of the cocaine recovered in the Ford F-
350 in exchange for a payment of $10,000 and for agreeing to pay
for Waiters’ attorney. The gist of Gibbs’ argument on appeal is
that Gibbs’ scheme to convince Waiters to take responsibility
for all of the cocaine in the truck was not obstruction of
justice because the cocaine, in fact, belonged to Waiters.
Obviously, the district court was free to reject Gibbs’ view of
the evidence and find that the cocaine belonged to Gibbs.
Layton, 564 F.3d at 334. 4
4
Gibbs has also filed a Rule 28(j) letter with this court
citing the Supreme Court’s recent decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013), where the Court held that any
fact that increases the statutory mandatory minimum is an
element of the offense and must be submitted to the jury and
found beyond a reasonable doubt. Id. at 2155. Alleyne is of no
help to Gibbs because, here, the drug weights were charged in
the indictment, submitted to the jury, and found by the jury
beyond a reasonable doubt, and no other sentencing factors
(including any sentencing enhancements) had an impact on the
statutory sentencing range applicable to Gibbs’ drug offenses.
See id. at 2163 (“Our ruling today does not mean that any fact
that influences judicial discretion must be found by a jury. We
have long recognized that broad sentencing discretion, informed
by judicial factfinding, does not violate the Sixth
Amendment.”).
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IV
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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DAVIS, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in most of the majority opinion affirming the
judgment of the district court.
I write separately to note that this Circuit’s precedent is
not conclusive as to whether a search of Gibbs’ cell phone would
exceed the scope of a permissible warrantless search on the
instant facts. The majority opinion cites United States v.
Murphy, 552 F.3d 405 (4th Cir. 2009), for this proposition, but
Murphy presented a substantially different case than the one
presented here. See ante, at 11 n.1. In Murphy, after giving
police officers conflicting information about his identity while
being questioned during a traffic stop, Murphy gave the police
his cell phone (which was on his person), and told them about
particular information on the phone that could be used to verify
his identity. Id. at 408. On plain error review, we affirmed the
district court’s ruling, in part because the initial search of
the cell phone occurred “in Murphy’s presence and at his
direction.” Id. at 412.
Murphy is factually and legally inapposite. The question of
a warrantless cell phone search is not presented here, as the
investigating officers secured a valid warrant before conducting
the search. 1 Thus, it remains an open question whether the
wholesale download of the contents of Gibbs’ phone, including
his contacts, text messages, and call history, could be effected
without a warrant as a search conducted pursuant to a lawful
arrest. 2
1
In addition to reciting the events of Gibbs’ arrest for
possession of marijuana, Officer Grill included in the warrant
application the suspicious nature of having four cell phones
from four different cell phone providers, with numbers in four
different area codes. Cf. United States v. Vaughan, 700 F.3d
705, 712 (4th Cir. 2012) (acknowledging reasonableness of
officer’s suspicions arising from the presence of four cellular
phones in a vehicle containing two persons).
Officer Grill stated that in his experience, drug dealers
“use multiple cellular telephones with different service
providers and area codes in an attempt to disguise their
identity from being tracked by law enforcement officials.” J.A.
99. Officer Grill also outlined the specific types of evidence
that might be found on these cell phones, again based on his
training and experience: communications involving illegal
narcotics, including photographs, emails, text messages, address
book information, call history information and financial
records. This information addressing the particular suspicion
around multiple cell phones, in combination with the discovery
of drugs and Gibbs’ admission to being in possession of
marijuana, all permissibly lead to a finding of probable cause
that there would be evidence of criminal activity in the cell
phones.
2
Indeed, we have acknowledged that a search of a cell
phone’s contents could be beyond the scope of a search incident
to a lawful arrest, albeit by unpublished opinion. See United
States v. Arellano, 410 F. App’x 603, 606-07 (4th Cir. 2011)
(agreeing with the district court’s ruling that while seizure of
a phone was permissible pursuant to the defendant’s arrest,
turning on and using the cell phone unlawfully exceeded the
scope of a permissible search). There is a split among the
circuits that have confronted this issue. Compare Finley v.
United States, 477 F.3d 250, 259-60 (5th Cir. 2007) (upholding
search of cell phone found on defendant’s person as a search
(Continued)
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incident to a lawful arrest), and United States v. Flores-Lopez,
670 F.3d 803, 810 (7th Cir. 2012) (same), with United States v.
Wurie, 728 F.3d 1, 13 (1st Cir. 2013) (holding that “the search-
incident-to-arrest exception does not authorize the warrantless
search of data on a cell phone seized from an arrestee’s
person”).
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