United States v. David

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4204
EON DAVID,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-95-206)
Submitted: December 31, 1996
Decided: February 10, 1997
Before WILLIAMS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, FLOYD, ALLEN & JACOBS, L.L.P., Greens-
boro, North Carolina, for Appellant. Walter C. Holton, Jr., United
States Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Eon David appeals from the district court's orders 1) denying his
motion to suppress evidence, 2) denying his motion to strike an 18
U.S.C.A. § 924(c)(1) (West Supp. 1996) charge from his indictment
following the Supreme Court's decision in Bailey v. United States,
116 S. Ct. 501 (1995), and 3) refusing to grant him a three-point
reduction for acceptance of responsibility under the Sentencing
Guidelines, see United States Sentencing Commission, Guidelines
Manual, § 3E1.1 (Nov. 1995). We affirm.
David first claims that the district court improperly applied the
good-faith exception to the exclusionary rule to a warrant found to be
unsupported by probable cause. We disagree. The warrant at issue
was supported by an affidavit which stated that a tested and reliable
confidential informant personally observed someone in the targeted
apartment in possession of crack cocaine. The source further stated
that he was aware that drugs were being sold from this apartment. We
have not been called upon to revisit the district court's determination
of probable cause and therefore decline to give any opinion on this
matter. We do, however, find that this affidavit was sufficient to jus-
tify an objective officer's reasonable reliance in the validity of the
warrant. See United States v. Leon, 468 U.S. 897, 922-23 (1984).
Accordingly, we affirm the district court's application of the good-
faith exception and its subsequent denial of David's motion to sup-
press.
Next, David claims that the district court erred in refusing to strike
a § 924(c)(1) charge from his indictment following his plea of guilty
and the Supreme Court's decision in Bailey v. United States, 116 S.
Ct. 501 (1995). We agree with David that the circumstances surround-
ing his arrest do not give rise to a charge that he"used" a firearm dur-
ing and in relation to the commission of a drug trafficking offense.
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See Bailey, 116 S. Ct. at 505 (stating that a conviction for "use" of
a firearm under § 924(c)(1) requires "evidence sufficient to show an
active employment of the firearm by the defendant"). David, how-
ever, was charged with, and pled guilty to, using or carrying a firearm
during and in relation to the commission of a drug trafficking offense.
Although the Bailey court did not expressly address the interpretation
of "carry" under § 924(c)(1), we have recently clarified in light
of Bailey what it means to carry a firearm under the statute. See
United States v. Mitchell, No. 95-5792, slip. op. at 7 (4th Cir. Jan. 15,
1997) (concluding that "the meaning of the term``carry' as used in
§ 924(c)(1) requires knowing possession and bearing, movement,
conveyance, or transportation of the firearm in some manner"). Under
this statutory definition of "carry," it is clear that David carried a fire-
arm in the post-Bailey sense of that term during and in relation to the
underlying drug offense.* David's assertion to the contrary is without
merit. Accordingly, we affirm the district court's refusal to strike the
§ 924(c)(1) charge from the indictment.
Finally, David challenges the district court's refusal to grant him
a three-point reduction for acceptance of responsibility. We review
the district court's application of the Sentencing Guidelines to the
facts under a "due deference" standard, examining factual determina-
tions for clear error and legal conclusions de novo. See 18 U.S.C.A.
§ 3742(e) (West Supp. 1996); United States v. Daughtrey, 874 F.2d
213, 217-18 (4th Cir. 1989). The district court's statements essentially
suggest its disbelief in David's assertion that he was minimally
involved in the charged offense. Based on our review of the record,
we cannot say that the district court clearly erred. Therefore, we
affirm the district court's refusal to grant the requested reduction.
Accordingly, we affirm all of the contested orders at issue in this
appeal. 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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*David pled guilty to drug conspiracy under 21 U.S.C.A. § 841(a)(1)
(West 1981). There is sufficient evidence to support his plea on this
charge.
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