United States v. Drew

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4832
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DION RENE DREW,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (3:05-cr-00070-WCB)
Submitted: October 31, 2007 Decided: November 15, 2007
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Andrew Arnold, Christopher P. Stroech, ARNOLD, CESARE & BAILEY,
PLLC, Shepherdstown, West Virginia, for Appellant. Sharon L.
Potter, United States Attorney, Paul T. Camilletti, Assistant
United States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dion Rene Drew appeals his conviction and 211-month
sentence following his conviction on one count of possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2000); one count of possession of a firearm in
furtherance of drug trafficking, in violation of 18 U.S.C.
§ 924(c)(1) (2000); and one count of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 924(a)(2) (2000). Drew’s
counsel filed a brief pursuant to Anders v. California, 286 U.S.
738, 744 (1967), stating that there were no meritorious issues for
appeal, but suggested that the district court erred in denying
Drew’s motion to dismiss the indictment, erred in denying Drew’s
motion to challenge the validity of the search warrant, and erred
in sentencing Drew. Drew filed a pro se supplemental brief
questioning whether the district court erred in determining the
drug quantities attributable to him, whether the district court
erred in failing to differentiate between crack cocaine and cocaine
base, and whether the district court erred in refusing Drew’s
request for additional voir dire. Finding no error, we affirm.
First, the district court did not err in denying Drew’s
motion to dismiss the indictment because he was never personally
served with the initial arrest warrant. Notably, Drew was properly
arrested without a warrant upon the discovery of a weapon by agents
of the Bureau of Alcohol, Tobacco, and Firearms, and Drew’s
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admission that he is a convicted felon. A warrant was only issued
later as Drew was being processed by the United States Marshals
Service. Moreover, the record makes clear that Drew received all
the process he was due. Accordingly, the district court properly
found that Drew’s rights were not violated when he was not
personally served with the initial arrest warrant, and the court
correctly denied his motion to dismiss the indictment.
Second, the district court properly denied Drew’s motion
to test the validity of the search warrant. Drew appears to
question whether it is appropriate for federal officials to rely on
a state-issued warrant. However, this argument is without merit,
as this court has previously approved of the use of evidence seized
pursuant to a state search warrant in a federal prosecution. See
United States v. Clyburn, 24 F.3d 613, 614 (4th Cir. 1994).
Moreover, the state search warrant complied with the Fourth
Amendment because the evidence plainly established a “fair
probability” that illegal narcotics would be found in Drew’s motel
room, and accordingly supported the magistrate’s finding of
probable cause. Illinois v. Gates, 462 U.S. 213, 238. Therefore,
the district court properly dismissed Drew’s motion.
Drew also challenges his sentence. This court reviews
the imposition of a sentence for reasonableness. United States v.
Booker, 543 U.S. 220, 260-61 (2005); United States v. Hughes, 401
F.3d 540, 546-47 (4th Cir. 2005). After Booker, a district court
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is no longer bound by the range prescribed by the Sentencing
Guidelines. Hughes, 401 F.3d at 546. However, in imposing a
sentence post-Booker, courts still must calculate the applicable
Guidelines range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the Guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). This court will affirm a
post-Booker sentence if it “is within the statutorily prescribed
range and is reasonable.” Id. at 433 (internal quotation marks and
citation omitted). “[A] sentence within the proper advisory
Guidelines range is presumptively reasonable.” United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
Here, the district court did not clearly err in making
its factual findings regarding the amount of drugs attributable to
Drew, and thereby properly determined Drew’s guideline range.
Moreover, the district court treated the Guidelines as advisory,
and sentenced Drew only after considering the § 3553(a) factors and
counsel’s arguments. Drew’s 211-month sentence is presumptively
reasonable, as it is within the appropriate guideline range and
below the statutory maximum sentence. As neither Drew nor the
record suggests any information to rebut the presumption, we find
that Drew’s sentence is reasonable.
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Next, Drew’s argument that the district court should have
distinguished between crack cocaine and cocaine base is without
merit because “cocaine base” and “crack cocaine” are
interchangeable terms. United States v. Ramos, 462 F.3d 329, 334
(4th Cir.), cert. denied, 127 S. Ct. 697 (2006). Although Drew
asks that the court reexamine its holding in Ramos, a panel of this
court may not overrule a prior published decision of the court.
See United States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999).
Finally, the district court did not err by failing to ask
additional questions regarding racial prejudice during voir dire.
During voir dire, the district court informed the jury panel that
Drew is African-American, and asked if this would affect anyone’s
ability to reach a fair and impartial judgment. Although Drew is
a black male, race was not an element of the offense or defense and
was not in any way connected with the resolution of relevant facts;
thus, racial issues were not “inextricably bound up with the
conduct of the trial,” and no specific inquiry into potential
racial bias was required. See United States v. Barber, 80 F.3d
964, 968 (4th Cir. 1996). Moreover, Drew fails to show that there
was a “reasonable possibility” that racial prejudice might have
influenced the jury in his trial. See id. at 969-70.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Drew’s convictions and sentence. This court requires that
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counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on the client. 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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