UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4365
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REGGIE WALDO CANADY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-02-127)
Submitted: May 27, 2005 Decided: July 11, 2005
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Samuel J. Randall, IV, THE LAW OFFICE OF SAMUEL J. RANDALL, IV, PC,
Wilmington, North Carolina, for Appellant. Frank D. Whitney,
United States Attorney, Anne M. Hayes, Christine Witcover Dean,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Reggie Waldo Canady appeals from his conviction and
sentence for conspiracy to distribute more than fifty grams of
cocaine base in violation of 21 U.S.C. § 846 (2000), possession
with the intent to distribute more than five grams of cocaine base
in violation of 21 U.S.C. § 841(a)(1) (2000), and using and
carrying a firearm during the drug conspiracy in violation of 18
U.S.C. § 924(c) (2000). We affirm Canady’s conviction, but we
vacate his sentence and remand for resentencing in light of United
States v. Booker, 125 S. Ct. 738 (2005), and United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005).
Canady claims the district court erred in declaring a
mistrial without first holding a hearing under Fed. R. Crim. P.
26.3. Canady did not object to the declaration of a mistrial, and
we review errors not objected to at trial for plain error. United
States v. Jarvis, 7 F.3d 404, 409-10 (4th Cir. 1993). The district
court did not specifically ask the parties to state their positions
concerning the declaration of a mistrial in accordance with Rule
26.3. However, the court repeatedly asked the parties for
suggestions about how to handle the jury’s problems and considered
every suggestion made by both sides. The purpose of a Rule 26.3
hearing was accomplished because each side had ample opportunity to
comment on the jury’s deadlock, suggest alternatives, and object to
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the mistrial. The district court met the requirements of Rule 26.3
and did not err.
Canady also claims the district court erred in declaring
a mistrial rather than taking the less drastic step of dismissing
a problem juror. During questioning by the district court, the
juror said he could deliberate, had not made his mind up before
hearing the evidence, and could participate in jury conversations
with an open mind. Fed. R. Crim. P. 23(b)(3) only allows the
district court to dismiss a juror “if the court finds good cause.”
The district court did not find any cause to dismiss the juror and
the evidence fails to persuade us that the district court’s
determination was erroneous.
Canady next claims the district court erred by denying
his motion to suppress because the search warrant affidavit was
insufficient to establish probable cause. This court reviews the
district court’s factual findings underlying a motion to suppress
for clear error and the district court’s legal determinations de
novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). When a
suppression motion has been denied, this court reviews the evidence
in the light most favorable to the government. United States v.
Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
The affidavit stated that a confidential informant told
police he had been to Canady’s residence in the previous forty-
eight hours and had seen cocaine base. The affidavit established
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the informant’s reliability by stating the informant had made
controlled purchases of drugs for the police before and had given
police reliable tips about stolen property and probation
absconders. When an informant has proven to be reliable in the
past and has firsthand knowledge of the criminal activity in
question, probable cause exists for issuing a search warrant.
United States v. Chavez, 902 F.2d 259, 264 (4th Cir. 1990).
Furthermore, probable cause did not become stale in the forty-eight
hours between the informant’s observation and issuance of the
warrant; the informant’s observation was “so closely related to the
time of the issue of the warrant as to justify a finding of
probable cause at that time.” United States v. McCall, 740 F.2d
1331, 1335-36 (4th Cir. 1984) (internal quotation marks and
citation omitted).
Even if the warrant was 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). The detective knew the
informant was reliable from earlier tips and could reasonably rely
on the informant to determine whether there was probable cause.
The fact that both the magistrate issuing the warrant and the
district court reviewing the sufficiency of the warrant concluded
that there was probable cause to search is further evidence of the
objective good faith of the officers in executing the warrant. See
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United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993). The
district court correctly denied Canady’s motion to suppress because
the police had probable cause to search his house, and even if a
defect in probable cause existed, the good faith exception applied.
Finally, Canady claims that the district court improperly
sentenced him when it imposed a sentence greater than the maximum
authorized by the facts found by the jury alone. Because Canady
failed to raise this claim below, we must review it for plain
error. Hughes, 401 F.3d at 547. The jury convicted Canady of
conspiracy to distribute more than fifty grams of cocaine base. At
sentencing, the district court found Canady responsible for 79.8
kilograms of cocaine base. Given Canady’s criminal history
category of I, the facts found by the jury on the drug conspiracy
charge authorized an offense level of thirty-two, with a resulting
sentencing range of 121 to 151 months. In contrast, the range
associated with the judicially enhanced offense level of
thirty-eight was 235 to 293 months. The district court erred in
basing Canady’s sentence on judge-found facts under a mandatory
guidelines regime, and the error was plain.* Id. at 547-48.
Because Canady’s sentence was longer than what could have been
*
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Canady’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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imposed based on the jury’s verdict, the error affected Canady’s
substantial rights, id. at 548, and we will notice the error, id.
at 555. Therefore, Canady must be resentenced.
Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court must still
“consult [the] Guidelines and take them into account when
sentencing.” 125 S. Ct. at 767. On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all the factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
We affirm Canady’s conviction. In light of Booker and
Hughes, we vacate Canady’s sentence and remand for resentencing.
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 IN PART; VACATED
AND REMANDED IN PART
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