UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES T. TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:04-cr-00009)
Submitted: November 30, 2007 Decided: February 14, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Melissa W. Friedman, Anthony F. Anderson, ANDERSON & FRIEDMAN,
Roanoke, Virginia, for Appellant. John L. Brownlee, United States
Attorney, R. Andrew Bassford, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Tyrone Turner appeals his jury convictions and
322-month sentence for possession with intent to distribute cocaine
base in violation of 21 U.S.C.A. § 841 (West 2000 & Supp. 2007)
(Count Two); possession of a firearm during and in relation to a
drug trafficking crime in violation of 18 U.S.C.A. § 924(c) (West
2000 & Supp. 2007)(Count Three); and being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1)(2000) (Count
Four).1 He challenges the district court’s denial of his motion to
suppress evidence, his designation as an armed career criminal, and
his sentence. We find no error in the court’s denial of Turner’s
motion to suppress or in his designation as an armed career
criminal, and we affirm Turner’s convictions. However, because we
conclude the erroneous calculation of Turner’s guideline range
under the U.S. Sentencing Guidelines Manual (“USSG”) (2005)
constitutes plain error, we vacate Turner’s sentence and remand for
resentencing.
(1) Motion to Suppress
During the investigation of the drug distribution
activities of Turner and his neighbor, Hugo Bibbs, Investigator
Tony McFadden requested a search warrant to search Turner’s home.
In requesting the warrant, McFadden provided the following
1
Turner was also convicted of conspiracy to distribute cocaine
base, but the court granted the Government’s motion at sentencing
and dismissed the conspiracy count.
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information. Within the prior seventy-two hours a reliable
confidential informant went to Bibbs’ residence. The informant
observed a person give Bibbs money and ask for cocaine. Bibbs took
the money, went across the street to Turner’s house, and returned
with cocaine. Other confidential informants (CIs) had gone to
Bibbs’ house to purchase drugs in the recent past. The CIs
reported that Bibbs went across the street, but returned saying he
could not obtain any drugs because Turner was not home. On the
occasions of the CIs’ attempted purchases, McFadden personally
observed Bibbs leave his house, go to Turner’s residence, and
return as described by the CIs.
McFadden’s affidavit additionally provided information
about the reliable confidential informant, stating that the
informant had provided information regarding drug involvement
against his or her own penal interests, was familiar with the
appearance of cocaine, and had provided information during the past
two years that had directly led to the arrests and convictions of
drug offenders. McFadden stated that the CIs also gave statements
against their penal interests and were working independently of the
reliable confidential informant.
At the hearing on the motion to suppress, McFadden
testified that approximately two hours after obtaining the warrant,
police officers conducted a controlled buy from Bibbs. A CI gave
Bibbs marked bills. Bibbs took the money, went across the street
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to Turner’s house and returned with cocaine. The officers executed
the search warrant after the completion of the controlled buy and
found a large amount of currency, including the marked bills used
in the controlled buy, digital scales, firearms, and approximately
thirty-five grams of cocaine base. The district court denied the
motion to suppress, concluding that the search warrant was
supported by probable cause and the police officers relied on it in
good faith.
Turner argues that the warrant was not supported by
probable cause nor was the evidence admissible under the good faith
exception to the exclusionary rule. When a party challenges both
the probable cause determination and the conclusion that the good
faith rule applies, a reviewing court will ordinarily address the
good faith determination first, unless the case involves the
resolution of a novel question of law necessary to provide guidance
to police officers and magistrate judges. See United States v.
Legg, 18 F.3d 240, 243 (4th Cir. 1994).
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;
or (4) the warrant is so facially deficient that an officer could
not reasonably rely on it. United States v. Wilhelm, 80 F.3d 116,
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121 (4th Cir. 1996). The crucial element determining probable
cause is “whether it is reasonable to believe that the items to be
seized will be found in the place to be searched.” United
States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993). Information
must link criminal activity to the place to be searched. Id. at
1583.
Turner contends the police officers could not have reasonably
relied on the warrant because it was facially lacking probable
cause. However, McFadden’s affidavit connected both Turner and his
residence to drug trafficking. 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 Lalor, 996 F.2d at 1583
(finding significant to a determination of good faith that two
judicial officers had concluded that the affidavit provided
probable cause to search). We conclude that the warrant was not
facially deficient so as to render Investigator McFadden’s reliance
upon it unreasonable, the affidavit provided a substantial basis
for a finding of probable cause, and the district court did not err
in denying Turner’s motion to suppress.
(2) Armed Career Criminal Designation
Turner contends that the predicate convictions used for
armed career criminal enhancement purposes must be alleged in the
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indictment and found by a jury beyond a reasonable doubt. This
argument, however, is foreclosed by controlling circuit precedent.
In United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir.), cert.
denied, 546 U.S. 1010 (2005), this court determined that prior
convictions used as a basis for armed career criminal enhancement
need not be charged in the indictment nor proven beyond a
reasonable doubt. Moreover, Turner was properly notified in the
Presentence Report (“PSR”) of the probation officer’s determination
that he qualified as an armed career criminal. See United
States v. Foster, 68 F.3d 86, 89 (4th Cir. 1995)(there is no
pretrial notice requirement attendant to guidelines enhancements,
such as the armed career criminal enhancement, USSG § 4B1.4, under
which Turner’s sentence was enhanced).2
(3) Sentencing
For the first time on appeal, Turner contends the
district court improperly calculated his guidelines range. In
imposing sentence after Booker,3 sentencing courts must calculate
the appropriate advisory guidelines range by making any necessary
2
We reject Turner’s argument that because he was informed at
his arraignment that he was subject to a maximum penalty of ten
years’ imprisonment on the felon in possession count, notification
in the PSR that he was subject to enhanced sentencing as an armed
career criminal was inadequate. At the arraignment, Turner pleaded
not guilty and availed himself of all of his constitutional trial
rights. He was timely informed of the probation officer’s
assessment that the armed career criminal enhancement applied
before he was sentenced, and had the opportunity to object.
3
United States v. Booker, 543 U.S. 220 (2005).
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factual findings. United States v. Moreland, 437 F.3d 424, 432
(4th Cir. 2006), cert. denied, 126 S. Ct. 2054 (2006). The court
should then consider the resulting advisory guidelines range in
conjunction with the factors set out in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007) and determine an appropriate sentence. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). Issues not
raised in the district court are reviewed for plain error. United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, an appellant must establish that an error
occurred, that it was plain, and that it affected his substantial
rights. Hughes, 401 F.3d at 547-48.
Turner was sentenced under the provisions of USSG
§ 4B1.4, which gives effect to 18 U.S.C. § 924(e) and provides
enhanced penalties for those convicted of being a felon in
possession under certain circumstances. The probation officer
applied sections 4B1.4(b)(3)(A) and (c)(2), which provide harsher
penalties to those who possess a firearm in connection with a drug
trafficking offense. Under these sections, Turner’s offense level
was thirty-four, his criminal history category was VI, and the
resulting guidelines range for Counts Two and Four was 262 to 327
months. He was sentenced to 262 months plus a consecutive sixty
month sentence for the § 924(c) violation (Count Three).
However, Application Note 2 to USSG § 4B1.4 states that
“if a sentence under this guideline is imposed in conjunction with
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a sentence for conviction under . . . 18 U.S.C. § 924(c), do not
apply either subsection (b)(3)(A) or (c)(2).” Because a sentence
under § 924(c) was imposed, Turner should have had an offense level
of 33, a criminal history category of IV, and a guidelines range of
188 to 235 months on Counts Two and Four. See USSG
§§ 4B1.4(b)(3)(B), (c)(3).
Turner contends, and the Government concedes, that the
improper calculation of his guidelines range was plain error. We
agree. Accordingly, we vacate Turner’s sentence on this basis and
remand for resentencing.4 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
4
Turner also contends the district court improperly applied a
presumption of reasonableness to a sentence within the guidelines
range. We find no such error.
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