FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 20, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-5175
v. (D.C. No. 07-CR-00088-001-CVE)
RICHARD DALE MORGAN, N.D. Okla.
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Richard Dale Morgan was convicted after a jury trial of being a felon in
possession of a firearm and ammunition. He was sentenced to 84 months
imprisonment. Counsel has filed a brief pursuant to Anders v. California, stating
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
there are no meritorious issues for appeal. 1 386 U.S. 738, 744 (1967). He also
requests permission to withdraw. Despite being given two opportunities to
respond to counsel's Anders brief, Morgan has not filed a response. The
government filed an answer brief raising two possible issues: (1) whether the
district court erred in denying Morgan's motion to suppress evidence and (2)
whether the district court abused its discretion by admitting other act evidence
under Rule 404(b) of the Federal Rules of Evidence. The government concludes,
however, neither issue is meritorious.
In addition to the issues raised by the government, we considered two more
potential issues: (1) whether the government's evidence at trial was sufficient to
support Morgan's conviction and (2) whether Morgan's sentence was reasonable.
We agree with the government the potential issues it raised and discussed are
without merit. The additional issues we independently considered are, likewise,
meritless.
Motion to Suppress
1
Anders holds “if counsel finds his [client’s] case to be wholly frivolous,
after a conscientious examination of it, he should so advise the court and request
permission to withdraw.” 386 U.S. at 744. Counsel must submit to both the court
and his client a “brief referring to anything in the record that might arguably
support the appeal.” Id. The client may then “raise any points that he chooses.”
Id. Thereafter, the court must completely examine all the proceedings to
determine the frivolity of the appeal. Id. “If it so finds it may grant counsel’s
request to withdraw and dismiss the appeal . . . . [I]f it finds any of the legal
points arguable on their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the appeal.” Id.
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"In reviewing the denial of a motion to suppress, we accept the factual
findings of the district court unless they are clearly erroneous." United States v.
West, 219 F.3d 1171, 1176 (10th Cir. 2000). We consider the evidence in the
light most favorable to the district court's determination. Id. "However, we
review de novo the ultimate determination of the reasonableness of the search
under the Fourth Amendment." United States v. Bustillos-Munoz, 235 F.3d 505,
511 (10th Cir. 2000). The applicability of the good-faith exception to the
exclusionary rule is also reviewed de novo. United States v. Nolan, 199 F.3d
1180, 1184 (10th Cir. 1999).
The district court properly denied Morgan's motion to suppress evidence.
The affidavit in support of the warrant established a sufficient nexus between the
residence to be searched and illegal activity, namely: a known and past reliable
confidential informant had observed a quantity of cocaine for sale and additional
quantities of cocaine packaged for sale at the residence and the affiant officer
observed short-term vehicular/pedestrian traffic coming and going from the
residence, which is a common observation at houses where drugs are being sold.
See United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir. 1990)
("Probable cause . . . requires a nexus between suspected criminal activity and the
place to be searched."); see also United States v. Corral, 970 F.2d 719, 727 (10th
Cir. 1992) (finding probable cause to search residence where affidavit stated
reliable confidential informant had received information that cocaine was being
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stored and distributed at residence and police surveillance revealed an unusually
high volume of visitors briefing entering and leaving residence which is
consistent with drug-trafficking). Even assuming, arguendo, the affidavit failed
to establish probable cause, the district court correctly concluded the Leon good
faith exception to the exclusionary rule applied because the officer's reliance on
the warrant was objectively reasonable. See United States v. Leon, 468 U.S. 897,
922-23 (1984). The court did not err in denying Morgan's motion to suppress
without an evidentiary hearing because Morgan had not claimed any of the
information in the affidavit was deliberately false or made in reckless disregard
for the truth. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding
Fourth Amendment only requires a hearing "where the defendant makes a
substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and . . . the allegedly false statement is necessary to the
finding of probable cause").
Rule 404(b) Evidence
Where a timely objection is made, we review for an abuse of discretion the
district court's admission of evidence under Rule 404(b) of the Federal Rules of
Evidence. United States v. Wilson, 107 F.3d 774, 782 (10th Cir. 1997). The
district court did not abuse its discretion in admitting, over Morgan's objection,
evidence of a set of digital scales containing white residue (which field-tested
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positive for cocaine) found in the residence where the firearm was discovered.
The court correctly concluded each of the four requirements for admissibility
under Rule 404(b) were satisfied: (1) the evidence was offered for a proper
purpose, i.e., to show Morgan's motive and intent to possess the firearm given the
close and well-known connection between firearms and drugs; (2) the evidence
was relevant under Rule 401 of the Federal Rules of Evidence because Morgan
admitted the scales belonged to him, they were found in the residence where the
firearm was discovered and therefore the evidence was probative of Morgan's
knowledge of the concealment of the firearm within the residence; (3) the
probative value of the evidence was not substantially outweighed by the potential
for unfair prejudice under Rule 403 of the Federal Rules of Evidence; and (4) an
appropriate limiting instruction on was given. See Huddleston v. United States,
485 U.S. 681, 691-92 (1988).
Sufficiency of the Evidence
"We review de novo whether the prosecution presented sufficient evidence
to support a conviction." United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.
2002). "In conducting this review . . . we ask whether, taking the evidence--both
direct and circumstantial, together with the reasonable inferences to be drawn
therefrom--in the light most favorable to the government, a reasonable jury could
find the defendant guilty beyond a reasonable doubt." Id. (quotations omitted).
The government presented sufficient evidence establishing Morgan's guilt beyond
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a reasonable doubt. "The essential elements of a § 922(g)(1) violation are: (1)
the defendant was a convicted of a felony; (2) the defendant thereafter knowingly
possessed a firearm; and (3) the possession was in or affecting interstate
commerce." United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004). The
parties stipulated to the first and third elements. As to the second, the
government presented evidence that when officers discovered the firearm, Morgan
admitted he had it for protection and would take it to prison if he could. The
evidence also showed the utilities to the residence where the firearm was found
were in Morgan's name, there were business cards in Morgan's name and men's
clothing in the bedroom where the firearm was found, and paperwork mailed to
Morgan at the residence was discovered in the residence. While Morgan
attempted to show he did not live at the residence and the firearm belonged to his
wife, the jury was free to disregard this evidence especially in light of the
government's rebuttal evidence which suggested his wife was lying and
demonstrated that upon his arrest Morgan stated he lived at the residence with his
wife.
Reasonable Sentence
We review sentences for procedural and substantive reasonableness, giving
deference to the district court under the abuse of discretion standard. Gall v.
United States, 128 S. Ct. 586, 597 (2007). Morgan's sentence is both
procedurally and substantively reasonable. The district court correctly calculated
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the advisory guideline range as 77 to 96 months. The court considered the 18
U.S.C. § 3553(a) factors, including Morgan's extensive criminal history, which
included eight felony convictions in addition to three separate periods of
incarceration in the Oklahoma Department of Corrections, and his history of drug
abuse. The court concluded a sentence within the advisory guideline range would
protect the public and serve as a deterrent to Morgan and others. It determined a
sentence just below the middle of the guideline range was appropriate based on
Morgan's age and health problems. It sentenced Morgan to 84 months
imprisonment. When, as here, the district court's individualized determination
overlaps with the guideline recommendation, we presume the sentence is
reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United
States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). The record discloses no
facts rebutting that presumption. Kristl, 437 F.3d at 1055. The district court's
sentence was within "the bounds of permissible choice, given the facts and the
applicable law" and therefore a proper exercise of its discretion. United States v.
McComb, 518 F.3d 1049, 1053 (10th Cir. 2007) (quotations omitted)
After thoroughly reviewing the record, we see no meritorious appellate
issues, GRANT counsel's motion to withdraw and DISMISS the appeal.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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