UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4620
RICKY PAGE REYNOLDS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-00-6)
Submitted: March 9, 2001
Decided: March 26, 2001
Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Lance M. Hale, LANCE M. HALE & ASSOCIATES, Roanoke, Vir-
ginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Craig J. Jacobsen, Assistant United States Attorney, Roanoke, Vir-
ginia, for Appellee.
2 UNITED STATES v. REYNOLDS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ricky Page Reynolds appeals his conviction after a jury trial for
possession with intent to distribute cocaine base and his resulting sen-
tence of 360 months imprisonment. Finding no error, we affirm.
I.
Reynolds first argues that 21 U.S.C. § 841(a)(1) (1994) is unconsti-
tutional, because it lacks a jurisdictional element, prohibits the act of
possession which is not "economic," and contains insufficient Con-
gressional findings on the link to interstate commerce. In addition,
Reynolds contends that the statute was unconstitutionally applied to
his case, because there were no jury findings as to whether his crime
had a substantial effect on interstate commerce.
This court has held that the Title 21 provisions prohibiting posses-
sion of controlled substances are not unconstitutional. Specifically,
we noted that the Drug Act was "clearly tied" to interstate commerce
and that Congress had made detailed findings that intrastate manufac-
ture, distribution, and possession of controlled substances directly
affected interstate drug trafficking. United States v. Leshuk, 65 F.3d
1105, 1112 (4th Cir. 1995). In addition, in Leshuk, we noted that the
Drug Act was not unconstitutional as applied to the defendant’s man-
ufacturing conviction because, although the defendant’s individual
crime had only a de minimis effect on interstate commerce and
although the statute did not contain a jurisdictional element, the fact
that the regulatory drug statute itself did bear a substantial relation to
commerce was sufficient. Id. Because Reynolds’ arguments are iden-
tical to those raised in Leshuk, his claim must fail.
II.
Next, Reynolds argues that the police lacked the reasonable suspi-
cion necessary to detain him and that the execution of the investiga-
UNITED STATES v. REYNOLDS 3
tory stop exceeded permissible constitutional limits. On November
12, 1999, Roanoke City police officers executed a search warrant for
drugs and child pornography at Wade’s Paint and Auto Body Shop.
At the time the search warrant was executed, the business was closed.
While officers were conducting the search, the telephone rang several
times, and Officer Clingenpeel answered the phone. During one of the
calls, a male voice asked for "Dave"; Clingenpeel told the caller that
Dave was busy. The caller then told Clingenpeel to tell Dave that he
had "28 grams for $1,000.00 and it’s good s***." Clingenpeel pre-
tended to ask "Dave" if he was interested and then advised the caller
to bring the item over. The caller identified himself as "Lightning,"
stated that he would be over in "[j]ust a minute," and informed Clin-
genpeel that he would be arriving in a "green Tempo."
Less than five minutes later, Reynolds was dropped off in front of
the store by a vehicle which appeared to be a green Ford Tempo, but
was actually a Mercury Topaz, a car with the identical body as a Ford
Tempo. Reynolds knocked on the door, and Clingenpeel told him to
come in. Before Reynolds could open the door, the police dog inside
barked, and the officers opened the door and yelled "Police, stop."
Reynolds fled. The officers loosed the canine, pursued Reynolds, and
apprehended him. A search of Reynolds revealed twenty grams of
cocaine base packaged in three plastic baggies.
Reynolds contends that, in light of Florida v. J.L., 529 U.S. 266
(2000), the anonymous phone call in his case did not provide reason-
able suspicion for his detention and pat down. In J.L., the police
received an anonymous telephone tip that a young black male stand-
ing at a particular bus stop and wearing a plaid shirt was carrying a
gun. The police did not know the informant’s name nor could they
verify the informant’s credibility. Apart from the tip, the police had
no reason to suspect the man of illegal conduct. The Supreme Court
held that the tip, without more, was insufficient to justify an investi-
gatory stop and frisk. Id. at 270-72.
The situation in this case did not pose the same credibility prob-
lems as in J.L. First, the tip was not an anonymous call to the police.
Instead, while the identity of the caller was unknown, the caller had
no reason to believe he was talking to the police. Thus, the concern
in J.L. regarding discouraging false accusations is not present. Sec-
4 UNITED STATES v. REYNOLDS
ond, unlike in J.L., the tip described future conduct which actually
occurred, thereby demonstrating a certain degree of credibility not
present in J.L. Specifically, the caller said he would be arriving at a
closed business within a short time period in a green car, and within
five minutes, he was in fact dropped off by a green car. Third, Reyn-
olds fled when the police identified themselves, which can also be
considered in determining whether reasonable suspicion existed. See
Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Based on the forego-
ing, the officers had reasonable suspicion to stop Reynolds.
Reynolds next argues that, even if the officers had the necessary
reasonable suspicion, their conduct transformed what began as an
investigatory stop into a de facto arrest. Further, Reynolds argues that
the police lacked probable cause to make an arrest and hence could
not lawfully seize the cocaine base pursuant to a search incident to
arrest.
The Supreme Court has stated that, when police officers make an
investigative stop, they may take such steps as are "reasonably neces-
sary to protect their personal safety and to maintain the status quo
during the course of the stop." United States v. Hensley, 469 U.S. 221,
235 (1985). During the course of the stop, police officers may con-
duct a reasonable search for weapons. Terry v. Ohio, 392 U.S. 1, 27
(1968). Moreover, it is not unreasonable for officers to employ drawn
weapons to stop and frisk suspected drug traffickers. United States v.
Sinclair, 983 F.2d 598, 603 (4th Cir. 1993).
Based on this authority, the stop of Reynolds was not unreasonable.
The mere fact that officers were brandishing weapons did not trans-
form a stop into an arrest. In addition, frisking suspected drug traf-
fickers for weapons without engaging in an initial verbal inquiry is
likely necessary to ensure the officers’ safety. Finally, regarding the
use of the dog, Reynolds has failed to show that this strategy was
unreasonable. The dog was used to run down Reynolds while he was
fleeing. Reynolds does not allege that the dog injured him or that the
dog remained involved after Reynolds was apprehended. Accord-
ingly, this too was reasonable. Because the officers possessed reason-
able suspicion to stop Reynolds and because the stop was not
converted into an arrest until the officers had recovered crack cocaine
UNITED STATES v. REYNOLDS 5
from Reynolds during a protective pat down, the drug evidence was
properly admitted.
III.
Reynolds next argues that the trial court abused its discretion in
admitting the results of tests showing that the substance found on
Reynolds was crack cocaine and in denying Reynolds’ motion for an
acquittal, when the Government failed to establish a complete chain
of custody. Proving chain of custody as a threshold requirement to the
admission of evidence establishes that the item to be introduced is
what it purports to be. United States v. Howard-Arias, 679 F.2d 363,
366 (4th Cir. 1982). However, admission of evidence is not prevented
just because there may be a missing link in its chain of custody "so
long as there is sufficient proof that the evidence is what it purports
to be and has not been altered in any material aspect." Id. Resolution
of a chain of custody question rests with the sound discretion of the
trial judge. United States v. Ricco, 52 F.3d 58, 61 (4th Cir. 1995).
Here, the only two people within the chain of custody who did not
testify at trial had only minor involvement with the evidence limited
to retrieving the evidence and placing it back in the vault. In addition,
other officers testified that the normal procedures had been followed
and that the chain of custody was properly documented. Moreover,
there was no evidence or indication that the crack cocaine had been
tampered with, and an officer testified at trial that the evidence
appeared substantially the same as when he seized it from Reynolds.
Accordingly, the Government satisfied the requirements for establish-
ing a chain of custody, and the district court did not err either in
admitting the crack cocaine and the certificate of analysis or in deny-
ing Reynolds’ motion for acquittal.
IV.
Next, Reynolds asserts that the district court erred in not awarding
a reduction for acceptance of responsibility under U.S. Sentencing
Guidelines Manual § 3E1.1 (1998). The district court’s decision
whether to grant a reduction for acceptance of responsibility is a fac-
tual determination that we review for clear error. United States v. Mil-
ler, 77 F.3d 71, 74 (4th Cir. 1996). The adjustment is not meant to
6 UNITED STATES v. REYNOLDS
apply where the defendant has put the Government to its burden of
proof at trial. USSG § 3E1.1, comment. (n.2). However, a defendant
who goes to trial may nonetheless demonstrate acceptance of respon-
sibility for his criminal conduct, if he went to trial to assert and pre-
serve issues that do not relate to factual guilt, such as the
constitutionality of a statute or the applicability of a statute to defen-
dant’s conduct. Id.
Reynolds argues that he accepted responsibility for his conduct, as
exemplified by his confession, and that he only went to trial to pre-
serve his appellate issues regarding the sufficiency of his indictment
and the constitutionality of the search. However, Reynolds’ actions
did not show personal responsibility for his actions. First, in his
motion to suppress his confession, counsel alleged that Reynolds "had
no recollection of making any statement." Second, Reynolds twice
moved to have his counsel removed because he allegedly was not put-
ting sufficient effort into the case. When his motions were denied,
Reynolds accused the judge of being "part of the group" and of run-
ning a "kangaroo courtroom," and stated that it was his intention to
disrupt the courtroom and that the court would have to "cuff and gag"
him. The district court ultimately removed Reynolds and tried him in
his absence. Based on the foregoing, we find that the district court did
not abuse its discretion in denying Reynolds an offense level reduc-
tion.
V.
Reynolds next argues that his sentence of 360 months for possess-
ing a "minimal" amount of drugs violated the Eighth Amendment’s
prohibition of cruel and unusual punishment because it was dispro-
portionate to other drug sentences. However, we have held that the
proportionality review is inappropriate for any sentence less than life
without parole. United States v. Lockhart, 58 F.3d 86, 89 (4th Cir.
1995). Thus, we decline to review this claim.
VI.
Finally, Reynolds challenges the denial of his motion to suppress
his confession. We affirm the district court’s decision on this claim
based on the district court’s reasoning. United States v. Reynolds, No.
UNITED STATES v. REYNOLDS 7
CR-00-6 (W.D. Va. May 15, 2000). Based on the foregoing, we
affirm Reynolds’ conviction and sentence. We dispense with oral
argument, because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED