United States v. Devon Marion

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVON LAMAR MARION,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cr-00338-D-1)
Submitted: August 2, 2013 Decided: December 4, 2013
Before GREGORY and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On November 1, 2011, a federal grand jury sitting in the
Eastern District of North Carolina charged Devon Lamar Marion
(Marion) with: (1) possession with intent to distribute more
than twenty-eight grams of cocaine base (crack), a quantity of
cocaine, and a quantity of marijuana, 21 U.S.C. § 841(a)(1); (2)
possession of a firearm in furtherance of a drug trafficking
crime, 18 U.S.C. § 924(c)(1)(A); and (3) possession of a firearm
by a convicted felon, id. § 922(g)(1). Marion pleaded guilty to
these offenses, and the district court sentenced him to
concurrent 108 month terms of imprisonment for the § 841(a)(1)
and § 922(g)(1) offenses, and a consecutive sixty month term of
imprisonment for the § 924(c)(1)(A) offense. On appeal, Marion
challenges: (1) the district court’s denial of his motion to
suppress evidence recovered pursuant to a search warrant; (2)
the district court’s denial of his request for a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978); and (3) the
sentence imposed by the district court. We affirm.
I
Legal determinations underlying a district court’s
suppression rulings, including the denial of a Franks hearing,
are reviewed by this court de novo, and factual findings
- 2 -
relating to such rulings are reviewed for clear error. United
States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011).
In June 2011, a confidential informant (CI) provided
information to law enforcement authorities in Cumberland County,
North Carolina concerning a drug dealer known as “Fat Rat.” The
information provided by the CI included, among other things, the
following about “Fat Rat”: (1) he used rental vehicles to
distribute drugs in Fayetteville, North Carolina; (2) he had a
blue car with blue wheels; and (3) he had a house in Hope Mills,
North Carolina.
A search of a police database revealed that Marion was also
known as “Fat Rat.” When presented with a photograph of Marion
by law enforcement authorities, the CI confirmed that “Fat Rat”
and Marion were the same person.
“Using investigative techniques,” the law enforcement
authorities discovered a rental agreement in which Marion was
listed as the renter of a 2011 Dodge Ram truck (the Dodge Ram).
On the rental agreement, Marion listed his contact phone number
as (910) 354-9476. A “reverse check” on the phone number
revealed that the phone number (910) 354-9476 was a land line to
a residence located at 612 Connors Cove (the Residence) in Hope
Mills.
While under the surveillance of the law enforcement
authorities, Marion, using the Dodge Ram, made several short
- 3 -
trips from the Residence in Hope Mills to known drug areas in
Fayetteville. Each time Marion arrived at a known drug area, he
stayed there only a short time before returning to the
Residence.
On two separate occasions, the law enforcement authorities
examined the trash at the Residence. Each time, the law
enforcement authorities found multiple plastic baggies with
ripped off corners. According to the law enforcement
authorities, this evidence was consistent with the packaging and
repackaging of controlled substances.
On July 6, 2011, Detective Joseph Herring (Detective
Herring) of the Fayetteville Police Department observed the name
“Fat Rat” stitched onto the head rests of a blue Chevrolet
Caprice with blue rims parked in the driveway of the Residence.
A DMV search revealed that the car was registered to Marion.
Based on this information, and information concerning
Marion’s previous conviction involving drugs, the law
enforcement authorities prepared an affidavit (the Affidavit)
and applied for a search warrant for the Residence, and the
warrant was granted by a Cumberland County Magistrate (Issuing
Magistrate) on July 17, 2011. The search warrant was executed
the following day. During the search of the Residence, the law
enforcement authorities recovered, among other things, 110.3
- 4 -
grams of crack; .9 grams of cocaine; 2.5 grams of marijuana; a
Ruger .357 handgun; and $8,526 in United States currency.
Following his indictment, Marion moved to suppress the
evidence recovered at the Residence on the basis that the search
was not supported by probable cause. In the alternative, Marion
sought a hearing pursuant to Franks, contending that the
Affidavit included false and misleading statements and that the
affiants purposefully omitted certain information. A United
States Magistrate Judge recommended that both the motion to
suppress and the request for a Franks hearing be denied. The
district court adopted the magistrate judge’s recommendation.
A
Marion contends that the search of the Residence was not
supported by probable cause. In particular, he contends that
the information contained in the Affidavit did not provide the
Issuing Magistrate with a proper basis to conclude that evidence
of a crime would be found at the Residence.
Subject to certain exceptions that are not applicable in
this case, police officers must obtain a warrant to conduct a
search or seizure at a residence. 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
- 5 -
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.
The Affidavit presented to the Issuing Magistrate supported
the finding of probable cause. The law enforcement authorities
sought to search the Residence for evidence of controlled
substances and drug trafficking activity. In support, the
Affidavit described a previous conviction involving drugs.
Moreover, the CI provided information concerning the drug
trafficking activities of “Fat Rat,” and he identified Marion as
“Fat Rat” in a photograph provided by the law enforcement
authorities. The CI’s information was corroborated by, among
other things, Marion’s pattern of traveling from the Residence
in a rented vehicle to known drug areas, staying for a short
period of time before returning to the Residence, and the
stitching of “Fat Rat” on the head rests of the Caprice Classic.
Under the circumstances of this case, it is reasonable to
suspect that a drug dealer would store drugs and items used in
- 6 -
the sale of drugs at a residence: (1) where he stays; (2) where
he appears to maintain two automobiles, including one that is
rented; (3) where law enforcement authorities recovered evidence
of drug trafficking activity in the trash; and (4) where law
enforcement authorities saw him on several occasions traveling
from such residence to known drug areas, and then returning to
such residence after a brief stay. Cf. United States v.
Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (agreeing with other
circuits “that the nexus between the place to be searched and
the items to be seized may be established by the nature of the
item and the normal inferences of where one would likely keep
such evidence”). In short, the district court correctly
determined that there was probable cause to search the
Residence.
B
Alternatively, Marion contends that the Affidavit could not
establish probable cause because: (1) the Affidavit was based on
false and misleading information; and (2) the affiants
purposefully omitted certain information. According to Marion,
the Affidavit recklessly and materially misrepresented his
criminal history, the phone number associated with the
Residence, and the timing of the DMV search on the Chevrolet
Caprice. Marion also posits that the Affidavit omitted the
location of the trash or the manner in which it was collected by
- 7 -
the law enforcement authorities, and that the Issuing Magistrate
likely was misled by a statement in the Affidavit regarding the
procedure followed in searching the trash. Taken together,
Marion argues these misstatements and omissions violate Franks
and require invalidation of the search warrant and suppression
of all evidence seized during the search of the Residence.
Marion also argues that he was, at a minimum, entitled to a
Franks hearing.
In Franks, the Supreme Court held that a “search warrant
must be voided and the fruits of the search excluded” if a
defendant establishes, by a preponderance of the evidence, that
the affidavit supporting that warrant included false statements
made “knowingly and intentionally, or with reckless disregard
for the truth” and that those false statements were “necessary
to the finding of probable cause” such that, “with the
affidavit’s false material set to one side, the affidavit’s
remaining content is insufficient to establish probable cause.”
438 U.S. at 155-56. A defendant is entitled to a hearing to
pursue this relief if he makes a “substantial preliminary
showing” that the affiant intentionally included false
statements necessary to the finding of probable cause. Id. at
155.
A defendant bears a heavy burden to establish the need for
a Franks hearing. United States v. Jeffus, 22 F.3d 554, 558
- 8 -
(4th Cir. 1994). With a claim that the affiant made the
affidavit deceptive by omitting facts, the defendant’s “burden
increases yet more.” United States v. Tate, 524 F.3d 449, 454
(4th Cir. 2008). In such a case, the defendant must show “that
facts were omitted ‘with the intent to make, or in reckless
disregard of whether they thereby made, the affidavit
misleading.’” Id. at 455 (quoting United States v. Colkley, 899
F.2d 297, 300 (4th Cir. 1990)). A claim that the affiant was
negligent or made an innocent mistake is inadequate to obtain a
Franks hearing. United States v. McKenzie-Gude, 671 F.3d 452,
462 (4th Cir. 2011). The preliminary showing “must be more than
conclusory and must be accompanied by a detailed offer of
proof.” Colkley, 899 F.2d at 300 (citation and internal
quotation marks omitted). Consideration of the omitted
information must “be such that its inclusion in the affidavit
would defeat probable cause.” Id. at 301. Thus, a defendant is
not entitled to a Franks hearing if, once the false statements
are excised and the omitted information is inserted, probable
cause still exists. Franks, 438 U.S. at 171-72.
In this case, even excluding all controverted statements
from the Affidavit and including the omissions that Marion
alleges, the Affidavit would support the Issuing Magistrate’s
finding of probable cause. Accepting Marion’s arguments, the
Affidavit would still have included the following: (1) Marion
- 9 -
had a previous conviction (albeit not a felony conviction)
involving drugs; (2) the CI provided the law enforcement
authorities with information regarding an alleged drug dealer
known as “Fat Rat”; (3) the CI said that “Fat Rat” usually
rented vehicles in which to deliver drugs in the Fayetteville
area; (4) the CI indicated that “Fat Rat” has a home in Hope
Mills; (5) the CI said that “Fat Rat” had a blue car with blue
wheels; (6) a search of a police database revealed that Marion
was known as “Fat Rat”; (7) the CI identified Marion as “Fat
Rat” in a photograph provided by the law enforcement
authorities; (8) Marion rented the Dodge Ram; (9) the law
enforcement authorities saw the Dodge Ram parked at the
Residence; (10) the law enforcement authorities saw a blue
Chevrolet Caprice with blue rims and the words “Fat Rat”
stitched in the head rests at the Residence; (11) on several
occasions, Marion exited the Residence, got into the Dodge Ram,
and drove to parts of Fayetteville known for illegal drug
activity; and (12) on these occasions, Marion stopped for a
short period of time in the known drug areas before returning to
the Residence. Unquestionably, even including the additional
information Marion claims was omitted, the Issuing Magistrate
still would have had a substantial basis for finding probable
cause that Marion was using the Residence as a drug storehouse.
Thus, Franks does not require invalidation of the search warrant
- 10 -
or suppression of the fruits of the search of the Residence.
Nor is Marion entitled to a Franks hearing.
II
We review sentences for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
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.
Using a Cumberland County street price of crack of $1,200 per
ounce, the Probation Officer converted the $8,526 recovered at
the Residence into 201.43 grams of crack. In arriving at this
figure, the Probation Officer divided 8,526 (the amount of cash
seized) by 1,200 (the street price of an ounce of crack in
Cumberland County) and then multiplied that amount, 7.105
- 11 -
(ounces), by 28.35 (the number of grams in an ounce). When this
201.43 grams was added to the other drugs recovered from the
Residence, the resulting drug quantity placed Marion in a Base
Offense Level of 32. With a three-level reduction for
acceptance of responsibility, Marion’s Total Offense Level was
29, which, when coupled with a Criminal History Category of III,
produced an advisory sentencing range of 108 to 135 months’
imprisonment for the § 841(a)(1) offense.
Marion argues that the district court erred in calculating
the advisory sentencing range for his § 841(a)(1) offense by
incorrectly calculating the amount of drugs attributable to him.
In particular, he challenges the manner in which the district
court converted the $8,526 in United States currency recovered
at the Residence into a crack equivalent. The gist of Marion’s
argument is that the conversion of the $8,526 should have been
to grams, not ounces, at a rate of $100 per gram, because there
was no evidence presented at sentencing indicating what
quantities and at what prices Marion sold crack. According to
Marion, using 85.26 grams instead of 7.105 ounces would have
reduced his base offense level by four levels.
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). Moreover, “[w]here there is no drug seizure or the
- 12 -
amount seized does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled
substance”; “[i]n making this determination, the court may
consider, for example, the price generally obtained for the
controlled substance.” United States Sentencing Commission,
Guidelines Manual, § 2D1.1, cmt. (n.12) (2011).
Cash is properly converted to drug equivalents when it is
part of the same course of conduct, either because it is the
proceeds of drug sales or would be used to purchase more drugs
in the future. United States v. Hicks, 948 F.2d 877, 882-83
(4th Cir. 1991). “A district court may properly convert cash
amounts linked credibly to the defendant’s purchase or sale of
narcotics so long as the court does not engage in double
counting of both the proceeds and the narcotics themselves.”
United States v. Sampson, 140 F.3d 585, 592 (4th Cir. 1998).
In this case, the government presented evidence at
sentencing suggesting that Marion sold crack in large quantities
instead of the small quantities typically sold by a street
dealer. The packaging and other evidence recovered at the
Residence also suggested that Marion sold crack in large
quantities instead of small quantities. Based on this evidence,
the district court did not clearly err when it converted the
$8,526 to ounces of crack instead of grams. See United States
v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (“Thus, we hold
- 13 -
that a district court need not ‘err,’ on the side of caution or
otherwise; it must only determine that it was more likely than
not that the defendant was responsible for at least the drug
quantity attributed to him.”); United States v. Uwaeme, 975 F.2d
1016, 1019 (4th Cir. 1992) (“Neither the Guidelines nor the
courts have required precise calculations of drug quantity.”).
III
For the reasons stated herein, the judgment of the district
court is affirmed. We dispense 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
- 14 -