UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4455
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM JUSTIN MARSHALL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:06-cr-00562-CMC)
Submitted: December 14, 2007 Decided: January 8, 2008
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Aileen P.
Care, Research & Writing Specialist, Columbia, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Leesa
Washington, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Marshall pled guilty to conspiracy to possess
with intent to distribute five grams or more of cocaine base
(“crack”), in violation of 21 U.S.C. § 846 (2000), and possession
with intent to distribute five grams or more of crack, in violation
of 21 U.S.C. § 841(a)(1) (2000). The district court sentenced
Marshall to concurrent 168-month terms on both counts. Marshall
appealed, challenging only his sentence. We affirm.
Marshall first contends 6.68 grams of crack he sold
during a controlled buy should have been calculated as powder
cocaine for sentencing purposes; he asserts the substance
transacted during the controlled buy had been reduced to a powder
form and was therefore not “lumpy” and “rocklike,” as the
Sentencing Commission has described crack. Because Marshall did
not raise this contention in district court, we review for plain
error. See United States v. Olano, 507 U.S. 725, 731-32 (1993).
Under the plain error standard, Marshall must show: (1) there was
error; (2) the error was plain; and (3) the error affected his
substantial rights. Id. at 732-34. When these conditions are
satisfied, we may exercise discretion to notice the error only if
the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted).
- 2 -
The sentencing guidelines define crack as “a form of cocaine
base, usually prepared by processing cocaine hydrochloride and
sodium bicarbonate, and usually appearing in a lumpy, rocklike
form.” U.S. Sentencing Guidelines Manual § 2D1.1(c) (Drug Quantity
Table), note (D) (2006) (emphasis added). Here, a Government
chemist determined the substance Marshall sold was “crushed crack
cocaine,” and Marshall fails to demonstrate the substance was not
crack. We therefore find no plain error in the treatment of this
substance as crack for sentencing purposes.
Marshall also challenges the sentencing calculation’s
inclusion of crack found pursuant to a warrantless search of a
vehicle. At the sentencing hearing, the Government conceded the
vehicle was not located on the property for which a warrant
authorized a search nor on the curtilage of the property described
in the search warrant. Nevertheless, the district court found
Marshall lacked standing to challenge the search of the vehicle, as
Marshall disavowed ownership, a possessory interest, or even
knowledge of the vehicle on the evening of the search. See
Rakas v. Illinois, 439 U.S. 128, 148-49 (1978) (holding defendant
must establish legitimate expectation of privacy in vehicle to
challenge use of evidence found during search under Fourth
Amendment). Furthermore, in a pre-sentencing guidelines case, we
held “the disadvantages of applying the exclusionary rule at
sentencing are large, the benefits small or non-existent, and . . .
- 3 -
the rule should therefore not be extended” to the sentencing
context. United States v. Lee, 540 F.2d 1205, 1212 (4th Cir.
1976); see also United States v. Nichols, 438 F.3d 437, 441 (4th
Cir. 2006) (noting other circuit courts “relied largely on the same
reasoning we articulated in Lee” in post-guidelines context). We
therefore find no error in the use of this evidence in calculating
Marshall’s sentencing guidelines range.
Accordingly, we affirm Marshall’s sentence. 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
- 4 -