United States v. Acosta

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4201
RAMON ACOSTA, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CR-95-247)
Submitted: April 17, 1997
Decided: May 1, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
David B. Freedman, WHITE & CRUMPLER, Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Timika Shafeek, 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Unpublished opinions are not binding precedent in this circuit.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:
Ramon Acosta, Jr. was found guilty by jury of possession with
intent to distribute "cocaine base ``crack,'" in violation of 21 U.S.C.
§ 841(a)(1) (1994). On appeal, Acosta alleges that: (1) the district
court erred by denying his motion to suppress approximately one kilo-
gram of crack cocaine found in his suitcase; (2) the district court sen-
tenced him for possession of crack cocaine without competent
evidence of the cocaine's precise chemical formula; and (3) his sen-
tence for crack cocaine is unconstitutional because the punishment for
crack cocaine is significantly harsher than for powder cocaine. For the
reasons that follow, we affirm.
The district court held a hearing on Acosta's motion to suppress.
The following facts were uncontested. As Acosta walked from his
train at an Amtrak station across a parking lot and toward a van, two
plain clothes officers approached him and identified themselves. After
Acosta agreed to speak with the officers, they learned he was travel-
ing from New York and verified that information by checking
Acosta's train ticket. One officer then told Acosta they were looking
for guns and drugs and asked if he could search his bags. Acosta
responded, "I understand; go ahead," and handed his bags to the offi-
cers. As the officer was untying a knot on the second bag, Acosta
offered to untie the knot. Because the knot had begun to loosen and
because the officer was concerned for his own safety the officer
replied, "No, I've got it." The second bag contained over one kilo-
gram of crack cocaine.
Courts look to the totality of the circumstances to determine
whether consent to a warrantless search was voluntary. See United
States v. Mendenhall, 446 U.S. 544, 557 (1980); United States v.
Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). Courts "consider the
characteristics of the accused (such as age, maturity, education, intel-
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ligence, and experience) as well as the conditions under which the
consent to search was given (such as the officer's conduct; the num-
ber of officers present; and the duration, location, and time of the
encounter)." Lattimore, 87 F.3d at 650. Because "the voluntariness of
consent to search is a factual question, we must affirm the determina-
tion of the district court unless its finding is clearly erroneous." Id.We find no error in the district's determination. Acosta was
approached by two plain clothes officers in a public area, answered
a few questions, and then offered his bags in response to their request
for a search. The detention was brief, no weapons were visible, and
the officers did not make physical contact with him, threaten or other-
wise intimidate him.1 Thus, we do not find the district court clearly
erred by denying his motion to suppress.
Acosta's claims regarding his sentence for crack cocaine also fail.
First, Acosta was indicted for and convicted of possession with intent
to distribute "cocaine base crack." At trial Acosta stipulated to the fact
that the Government's "qualified forensic chemist" concluded that the
substance found in his bag was "a white rock substance that was
determined to be 1.029 kilograms net weight of cocaine base crack."
His claim for the first time on appeal that the substance was not crack
is simply without merit. Accordingly, we do not find that the district
court committed plain error by sentencing Acosta under the crack
cocaine guidelines.2 See United States v. Olano, 507 U.S. 725, 734
(1993) (claim raised for the first time on appeal cannot justify reversal
unless the error is "clear under current law"). Second, this court has
consistently upheld the greatly enhanced penalties for crack cocaine.
See United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (en
banc) (court refused to reconsider equal protection attack on disparity
of punishment between cocaine powder and cocaine base because
Congress specifically rejected the Sentencing Commission's proposed
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1 Although the record of the hearing on the suppression motion does
not reveal Acosta's age, experience, intelligence and maturity, Acosta
does not allege on appeal that the district erred by failing to make these
factual findings.
2 The sentencing guidelines specifically state that the Sentencing Com-
mission used the term "cocaine base" to refer to "crack." United States
Sentencing Commission, Guidelines Manual,§ 2D1.1(c), note (D) (Nov.
1995).
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amendment to reduce the disparity); United States v. Fisher, 58 F.3d
96, 99-100 (4th Cir.), cert. denied, #6D 6D6D# U.S. ___, 64 U.S.L.W. 3270(U.S. Oct. 10, 1995) (No. 95-5923) (rejecting litigant's equal protec-
tion argument with regard to the 100-to-1 sentencing ratio between
crack and powder cocaine); United States v. D'Anjou, 16 F.3d 604,
612 (4th Cir. 1994) (holding that sentencing guidelines equating one
unit of cocaine base with 100 units of cocaine powder did not violate
equal protection based on racial disparity). Thus, we affirm Acosta's
conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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