United States v. Saunders

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HENRY ANTOINE SAUNDERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
03-484-DKC)
Submitted: March 8, 2006 Decided: May 2, 2006
Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barry J. Pollack, COLLIER, SHANNON & SCOTT, P.L.L.C., Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Mythili Raman, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Henry Antoine Saunders was convicted by a jury of
conspiracy to distribute and to possess with intent to distribute
cocaine, and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §§ 846,
924(c)(1)(A)(I) (2000), respectively. On the first count, the
district court sentenced Saunders to 121 months’ imprisonment, a
sentence at the bottom of the sentencing guidelines range and one
month above the statutory mandatory minimum sentence. On the
second count, the district court sentenced Saunders to five years’
imprisonment consecutively, as required by statute. Saunders
appeals.
First, Saunders challenges the district court’s denial of
his pretrial motion to suppress evidence collected at a search of
his residence. The affidavit supporting the warrant contained
facts alleging that Saunders conducted coded conversations with a
known drug dealer, that Saunders met with the drug dealer at
intersections in and around the District of Columbia, and that
Saunders resided at one of the investigation’s target locations
cited in the affidavit. However, aside from a statement reflecting
the affiant’s observation, based on training and experience, that
drug dealers often store the fruits and instrumentalities of their
crimes at their residences, the affidavit contained no information
linking the residence to alleged drug activity. The district court
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agreed with Saunders that the affidavit for the search warrant did
not provide information alleging a nexus between Saunders’
residence and suspected drug activity sufficient to establish
probable cause. However, the district court upheld the legality of
the search under the good faith exception to the exclusionary rule.
See United States v. Lalor, 996 F.2d 1578 (4th Cir. 1993)
(upholding the denial of a motion to suppress items seized pursuant
to a search warrant for the defendant’s residence under the good
faith exception despite the failure of the warrant application to
set forth information alleging a connection between the defendant’s
drug activity and his residence).
If a warrant is found to be defective, the evidence
obtained from the defective warrant may nevertheless be admitted
under the good faith exception to the exclusionary rule. United
States v. Leon, 468 U.S. 897, 922-23 (1984). Evidence seized
pursuant to a defective warrant will not be suppressed unless: (1)
the affidavit contains knowing or reckless falsity; (2) the
magistrate acts as a rubber stamp for the police; (3) the affidavit
does not provide the magistrate with a substantial basis for
determining the existence of probable cause; and (4) the warrant is
so facially deficient that an officer could not reasonably rely on
it. United States v. Wilhelm, 80 F.3d 116, 121-22 (4th Cir. 1996);
United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995).
Having reviewed the materials submitted in the joint appendix and
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supplemental appendix, we conclude that the district court did not
err in applying the good faith exception in this case.
Next, Saunders argues that the district court should have
issued a multiple conspiracy instruction to the jury, or, in the
alternative, the court erred in denying his motions for a new trial
and for a judgment of acquittal. A multiple conspiracy jury charge
is required only when “the proof at trial demonstrates that [the
defendant was] involved only in separate conspiracies unrelated to
the overall conspiracy charged in the indictment.” United
States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000).
A trial court commits reversible error by not giving such
an instruction only when the defendant can establish that he or she
was “prejudiced by the variance between the single conspiracy
charged in the indictment and the multiple conspiracies proven at
trial.” Id. at 575 (citation and internal quotation marks
omitted). To establish prejudice, the defendant must show that
“there are so many defendants and so many separate conspiracies
before the jury that the jury was likely to transfer evidence from
one conspiracy to a defendant involved in an unrelated conspiracy.”
Id. As the district court properly found on several occasions
throughout the proceedings, a multiple jury instruction would not
have been appropriate, Saunders suffered no prejudice from the
refusal of a multiple conspiracy instruction, and there is no
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material variance between the indictment and the Government’s
evidence at trial requiring reversal.
Finally, Saunders argues for the first time on appeal
that the district court erred by sentencing him under the then-
mandatory sentencing guidelines, and that he was prejudiced by this
error because there is a nonspeculative reason to conclude he would
have been sentenced to a term of imprisonment one month shorter had
the district court applied the guidelines in an advisory manner.
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court concluded that even in the absence of a Sixth
Amendment violation, the imposition of a sentence under the
mandatory guidelines scheme was error. Id. at 267-68 (Breyer, J.,
opinion of the Court); see also United States v. White, 405 F.3d
208, 216-17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005). As we
explained in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),
sentencing under a mandatory scheme is “a separate class of error
. . . distinct from the Sixth Amendment claim that gave rise to the
decision in Booker.” Id. at 553. We recognized that “[t]his error
. . . may be asserted even by defendants whose sentences do not
violate the Sixth Amendment.” Id.In White, 405 F.3d at 215, we reviewed for plain error
where the mandatory application of the guidelines was not raised in
the district court, and held that treating the guidelines as
mandatory was plain error in light of Booker. Id. at 216-17. We
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declined to presume prejudice, id. at 217-22, holding that the
“prejudice inquiry, therefore, is . . . whether after pondering all
that happened without stripping the erroneous action from the
whole, . . . the judgment was . . . substantially swayed by the
error.” Id. at 223 (internal quotation marks and citations
omitted). To make this showing, a defendant must “demonstrate,
based on the record, that the treatment of the guidelines as
mandatory caused the district court to impose a longer sentence
than it otherwise would have imposed.” Id. at 224. Because “the
record as whole provide[d] no nonspeculative basis for concluding
that the treatment of the guidelines as mandatory ‘affect[ed] the
district court’s selection of the sentence imposed,’” id. at 223(quoting Williams v. United States, 503 U.S. 193, 203 (1992)), we
concluded in White that the error did not affect the defendant’s
substantial rights, and thus affirmed the sentence. Id. at 225.
Here, Saunders asserts that a statement by the district
court at the sentencing hearing provides a nonspeculative basis for
concluding that the application of the guidelines as mandatory
affected the sentence imposed. Specifically, he points to the
district court’s comment that “I do believe that in the facts as I
see them now concerning Mr. Saunders, the mandatory minimums do set
a sentencing range that is more than sufficiently high with regard
to Mr. Saunders.” However, the district court noted Saunders’
disruptive behavior immediately thereafter and commented that:
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I am sorry that he has taken that tact that he has taken
here today, but I am not going to use that as a
justification for sentencing him above the bottom of the
guidelines. He is facing 1 month over 15 years at the
bottom of these guidelines, and I think, under the
circumstances, that is sufficient.
On this record, we conclude that Saunders has not
presented a nonspeculative basis to conclude that the mandatory
nature of the guidelines affected the sentence that the district
court imposed.
Accordingly, we affirm the judgment of the district
court. 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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