United States v. Artemas Roberts

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4622
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTEMAS TYRELL ROBERTS, a/k/a Artimus Tyrell Roberts,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00173-NCT-1)
Submitted: February 17, 2012 Decided: February 24, 2012
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark E. Edwards, EDWARDS & TRENKLE, PLLC, Durham, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Artemas Tyrell Roberts appeals his 294-month sentence
and convictions following a guilty plea to possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) (2006), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i) (2006). On appeal, Roberts argues that
the district court erroneously denied his motion to suppress
evidence following an alleged illegal search of his residence.
Roberts has also filed a motion to remand the case for
resentencing in light of the Fair Sentencing Act (“FSA”) of
2010. We affirm Roberts’s convictions and deny his motion to
remand.
Following the denial of a motion to suppress, we
review the district court’s legal conclusions de novo and its
factual findings for clear error. United States v. Foster, 634
F.3d 243, 246 (4th Cir. 2011). A factual finding is clearly
erroneous if this court “on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008)
(internal quotation marks omitted). In conducting our review,
we give particular deference “to a district court’s credibility
determinations, for it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
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motion to suppress.” United States v. Abu Ali, 528 F.3d 210,
232 (4th Cir. 2008) (internal quotation marks and citation
omitted). “Because the district court denied the motion to
suppress, we construe the evidence in the light most favorable
to the government.” United States v. Black, 525 F.3d 359, 364
(4th Cir. 2008) (internal quotation marks and citation omitted).
On appeal, Roberts does not challenge the district
court’s finding that exigent circumstances justified the
officers’ entry into his residence to conduct a protective
sweep. Instead, Roberts asserts for the first time that the
officers impermissibly entered the “curtilage” surrounding his
residence when they approached the rear door, rather than the
front door, to conduct their “knock and talk,” thereby violating
the Fourth Amendment. Because Roberts failed to raise this
argument in his motion to suppress before the district court,
our review is for plain error. Fed. R. Crim. P. 52(b). Plain
error occurs when: (1) there was an error; (2) the error is
plain; (3) the error affects substantial rights; and (4) the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. United States v. Wilkinson,
137 F.3d 214, 223 (4th Cir. 1998) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)).
The Fourth Amendment’s protection against unreasonable
searches extends to the curtilage of a home. Oliver v. United
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States, 466 U.S. 170, 180 (1984); Rogers v. Pendleton, 249 F.3d
279, 287 (4th Cir. 2001). However, “just as private citizens
may approach a home, absent contrary instructions from the
owner, to knock on a door, so may the police approach without
probable cause, a warrant, or exigency.” Pendleton, 249 F.3d at
289. Officers may enter an individual’s backyard without a
warrant “when they have a legitimate law enforcement purpose for
doing so.” Alvarez v. Montgomery Cnty., 147 F.3d 354, 358 (4th
Cir. 1998). Once on a private individual’s property, however,
the officers may not “exceed their legitimate purpose for being
there.” Id.In this case, the officers had a legitimate reason to
approach Roberts’s townhouse — to apprehend a wanted fugitive
believed to be residing there. Based upon their previous
observations during the course of surveillance, the officers saw
that all guests approached and entered the townhouse through the
rear entrance. As the rear patio connected to an adjoining
parking lot along a paved sidewalk, it would be reasonable for
members of the public to approach the townhouse through the rear
entryway as well. Moreover, although a dog was chained in the
backyard, the patio was not fenced and contained no signs
forbidding trespassers. Accordingly, the officers reasonably
approached the rear door to conduct a “knock and talk.”
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Therefore, the district court did not err in denying Roberts’s
motion to suppress evidence obtained as a result.
In his motion to remand, Roberts asserts that the case
should be remanded for resentencing in light of the FSA. The
FSA increased the threshold quantities of cocaine base needed to
trigger certain mandatory minimum sentences under 21 U.S.C.A.
§ 841(b) (West 1999 & Supp. 2011). This court has not yet ruled
on whether the FSA is retroactively applicable to a defendant,
like Roberts, who committed the offense prior to August 3, 2010,
the effective date of the FSA, but was sentenced after that
date. See United States v. Bullard, 645 F.3d 237, 248 n.5 (4th
Cir. 2011) (reserving judgment on “whether the FSA could be
found to apply to defendants whose offenses were committed
before August 3, 2010, but who have not yet been sentenced”).
However, the district court determined Roberts’s
advisory Guidelines range based upon his status as a career
offender, not his drug quantities. Although 21 U.S.C.
§ 841(b)(1)(B) imposed a mandatory minimum sentence of five
years’ imprisonment for possession with intent to distribute
12.8 grams of cocaine base, Roberts’s status as a career
offender governed his subsequent advisory Guidelines range of
262 to 327 months’ imprisonment pursuant to the U.S. Sentencing
Guidelines Manual § 4B1.1(c)(3) (2010). Accordingly, any change
in the minimum mandatory sentence for possession with intent to
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distribute 12.8 grams of cocaine base would not affect Roberts’s
sentence.
Accordingly, we affirm the district court’s judgment
and deny Roberts’s motion to remand. 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
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