IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60524
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL DEWAYNE BARNES,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Mississippi
(3:94CR131LN)
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August 9, 1996
Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit
Judges.
E. Grady Jolly, Circuit Judge:*
Paul Dewayne Barnes entered a conditional plea of guilty to a
charge of possession with intent to distribute crack cocaine in
violation of 21 U.S.C. § 841. As part of his plea, he reserved the
right to appeal the question whether the district court properly
denied his motion to suppress evidence that led to his guilty plea.
We hold that the district court properly refused to suppress
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
evidence found in Barnes' home, and therefore affirm the sentence
imposed by the district court based on the guilty plea.
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I
In September 1994, employees of Federal Express in Memphis,
Tennessee, opened a package addressed to Henry Smith, 116
Neatherwood Drive, Jackson, Mississippi. No objection has been
made in this appeal to this conduct. Inside, they found a large
amount of crack cocaine. The Memphis police contacted the Hinds
County Sheriff's Office, and that office obtained a warrant from a
Hinds County justice court judge to search the package. When the
package arrived in Jackson, the sheriff's office opened the package
in accordance with the warrant and found over 400 grams of crack
cocaine, packaged in plastic bags inside an anti-freeze container.
They repackaged the substance and attempted a "controlled delivery"
by an investigator posing as a FedEx deliveryman. According to the
affidavit supporting a subsequent search warrant for the search of
the residence, however, "When he arrived at the residence he found
a note fastened to the front door bearing [Henry Smith's] name
directing the Federal Express delivery person to leave the package
behind a wooden fence along the west end of the house." The
officers, however, did not leave the package. About fifteen
minutes later, officers returned to the house to retrieve the note
they had seen, but the note was gone. The officers then left a
note requesting the addressee to call for the package at the FedEx
office. A short time later, officers at FedEx received a call from
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a male, supposedly black, who identified himself as Henry Smith and
demanded that the package be re-delivered and left in the yard by
the front door of the house. The caller referenced the correct air
bill number of the package.
The officers obtained a second search warrant to reopen the
package to place a motion detector inside. Almost simultaneously
with this warrant, they obtained a third search warrant to search
the residence for "ledgers, records, or other documents indicating
narcotics trafficking; proceeds from narcotics trafficking, and any
other controlled substance--particularly cocaine." Only this third
warrant is the subject of this appeal. After obtaining the
warrants, they implanted the motion detector, left the package on
the doorstep, and began surveillance of the residence.
Approximately thirty minutes after they left the package,
surveilling officers reported to the other officers that a black
female had moved the package and had entered the house. The
package, however, was not carried into the house. The officers
then executed the search warrant. Inside the house they found two
firearms, various amounts of marijuana and cocaine, $12,730 cash in
the ceiling, and drug-trafficking paraphernalia. They also found
a second FedEx package shipped from Los Angeles, almost identical
to the one that they delivered. The police arrested the black
female, Tracy Wimberly. She lived at this house--116 Neatherwood
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Drive--with Paul Barnes. Barnes was arrested approximately two
weeks later.
At the suppression hearing, Barnes argued that the evidence
discovered at his residence pursuant to the third search warrant
should be suppressed. He had at first argued in his motion to
suppress that the warrant supporting the search was an anticipatory
warrant, see, e.g., United States v. Wylie, 919 F.2d 969, 974 (5th
Cir. 1990) (holding that search of premise may be authorized "when
it is known that contraband is on a sure course to its destination
there" and approving use of anticipatory search warrants in
appropriate circumstances), and that the contingent circumstance--
actual entry of the FedEx package into the house--never occurred.
He has changed his argument, however, and he now asserts that the
warrant, although not anticipatory in nature, was issued without
probable cause because it was not supported by any evidence of
criminal activity within the residence.
The government responds that the warrant clearly was not
anticipatory, and in no way was conditioned on delivery of the
package (a point now conceded by the defendant). It further argues
that there was a sufficient nexus between the package and the house
to provide the requisite probable cause for the search warrant,
because (1) the package--unquestionably containing contraband--was
addressed to that house, (2) a note signed by the addressee was
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left on the door of the house, and (3) a man identifying himself as
the addressee called demanding re-delivery of the package to that
address. This evidence, the government argues, clearly establishes
reasonable grounds to conclude that this house, which plainly was
a focal point of this drug transaction, contained evidence relevant
to the crime under investigation. The district court agreed with
the government. It therefore denied Barnes' motion to suppress the
evidence gathered pursuant to the search.
Barnes then conditionally pleaded guilty to Count II of the
indictment charging him with possession with intent to distribute
cocaine base, reserving his right to appeal the denial of his
motion to suppress. He was sentenced to 20 months imprisonment and
five years' supervised release. In addition to the denial of his
motion to suppress, Barnes appeals three findings in the
presentence report: that he was responsible for the crack cocaine
found in the house and in the package, that he was denied
sentencing credit for acceptance of responsibility for any acts
outside the specific count of his plea, and the sentencing
guidelines for crack cocaine are disproportionate to that for
powder cocaine. The district court resolved all three objections
in favor of the government. Barnes now appeals.
II
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To determine whether probable cause exists for the issuance of
a search warrant, the district court is to make a common sense
decision whether, given all the circumstances set forth in the
affidavit, there is a fair probability that contraband or evidence
of a crime will be found in a particular place. United States v.
Wylie, 919 F.2d 969, 974 (5th Cir. 1990). In the present case, the
district court found that there was evidence of drug trafficking
related to the residence because the FedEx package was addressed to
the house, someone left a note (bearing the name of the addressee)
on the house, and someone identifying himself as Henry Smith, the
addressee identified by the package as located at the residence,
made a phone call demanding that the package be left at the house.
There is hardly more for us to say, except that we hold that this
evidence provides a sufficient nexus between the criminal activity
associated with the package and the address to which the package
was destined, reasonably to believe that the residence probably
contained evidence relevant to the crime under investigation.
On the other hand, we cannot agree with Barnes that the
failure of the FedEx package actually to cross the threshold into
Barnes' residence is somehow fatal to probable cause. The nexus
between the package and the residence to which it was destined for
delivery, as detailed above, remains. We further reject Barnes'
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argument that the nexus leading to probable cause fails because of
the theoretical possibility of a scheme seeking to deceive the
authorities into erroneously concluding that the actual destination
of the package was 116 Neatherwood Drive. Even if such a ruse took
place, it was insufficient to defeat the probable cause underlying
the valid search warrant, based on the issuing judge's conclusion,
well supported by the good faith affidavits before him, that there
was a "fair probability that contraband or evidence of a crime"
would be found at 116 Neatherwood Drive.1
III
We find that Barnes' assignments of error are without merit,
and therefore affirm his conviction and sentence.
A F F I R M E D.
1We hold that Barnes' other three assignments of error, all
relating to sentencing, lack in merit. First, his contention that
he should not have been charged, for sentencing purposes, with the
controlled substance that never entered his house, is resolved by
the determinations underlying the suppression issue, and we
consequently hold that the district court did not err in its
calculation of the amount of crack cocaine for sentencing. Second,
in the light of our previous rulings that disparate sentences for
crack versus powder cocaine violate neither the Eight nor the
Fourteenth Amendments, the district court did not err in denying
Barnes' motion to depart and/or utilize the Rule of Lenity in
calculating Barnes' sentence. Finally, the district court did not
err in refusing to decrease Barnes' offense level for his failure
to demonstrate acceptance of responsibility for his offense.
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