UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4804
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILFORD ANTONIO DRUMMOND,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:09-cr-00030-GRA-2)
Submitted: February 8, 2011 Decided: March 16, 2011
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant. Leesa Washington, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial on a superseding indictment,
Wilford Antonio Drummond was found guilty of conspiracy to
possess with intent to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West
1999 & Supp. 2010) and 21 U.S.C. § 846 (2006) (“Count One”);
possession with intent to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A)
(“Count Two”); being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2006) and 18 U.S.C.
§ 924(a)(2), (e) (2006) (“Count Five”); and using and carrying a
firearm during and in relation to, and possessing a firearm in
furtherance of, a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1) (2006) (“Count Six”). Drummond was sentenced
to 300 months’ imprisonment, which consisted of the statutory
mandatory minimum of 240 months on Counts One and Two
(concurrent) and a consecutive sixty-month sentence on Count
Six. The district court later amended the criminal judgment to
correct an error in the special assessment.
Counsel has filed this appeal pursuant to Anders v.
California, 386 U.S. 738 (1967), averring that there are no
meritorious issues for appeal, but asking this court to review
the district court’s: (1) denial of Drummond’s motion to
suppress; (2) denial of trial counsel’s request to present the
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jury with evidence pertaining to Drummond’s theory of vindictive
prosecution; and (3) use of a prior conviction that arose from
criminal conduct perpetrated when Drummond was a juvenile to
support the enhanced statutory mandatory minimum. Although
advised of his right to do so, Drummond did not file a pro se
supplemental brief, and the Government has similarly declined to
file a brief. For the reasons that follow, we affirm the
district court’s amended criminal judgment.
I.
Taken in the light most favorable to the Government,
United States v. Lewis, 606 F.3d 193, 195 n.1 (4th Cir. 2010),
the evidence adduced at the suppression hearing established the
following facts. On June 17, 2008, Sergeant Joseph Pharis of
the Spartanburg County Sheriff’s Office swore an affidavit in
support of a search warrant for the residence located at 321
Irby Road (“Irby Road residence”). Pharis based his warrant
application on information he received from a confidential
informant employed by the Sheriff’s Office, whom Pharis
testified was consistently reliable. A local magistrate judge
approved the warrant.
The warrant was executed on June 26, 2008, nine days
after it was issued. Five men were at the Irby Road residence
that day, including Drummond and his co-defendant, Donald
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Williams, Jr. The search of the Irby Road residence yielded
several firearms and approximately sixty-eight grams of cocaine
base. After reading the men their Miranda 1 rights, Pharis asked
if anyone would claim responsibility for the contraband.
Drummond admitted possession of the firearm that had been found
in his bedroom and provided a handwritten statement to that
effect. Drummond also executed a written Miranda waiver.
Pharis testified that, shortly after Drummond executed
this statement, Drummond’s mother (Judith Boswell) arrived on
the scene. Pharis unequivocally denied threatening to arrest
Boswell or telling Drummond that the police would charge Boswell
if he did not claim possession of the firearm. In denying
Drummond’s motion to suppress, the district court credited this
testimony and thus rejected Drummond’s contention that Pharis
coerced him to give an inculpating statement by threatening to
charge or arrest his mother.
On appeal, counsel concedes that whether Pharis
coerced Drummond into providing a statement is an issue of fact,
which this court reviews for clear error. United States v. Day,
591 F.3d 679, 682 (4th Cir. 2010). We find no error in the
district court’s ruling. The court was well within its province
to credit Pharis’ testimony on this point. See United States v.
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Miranda v. Arizona, 384 U.S. 436 (1966).
4
Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (explaining the
deference this court affords the district court’s credibility
determinations, because “it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
motion to suppress” (internal quotation marks omitted)).
Accordingly, we affirm the denial of Drummond’s motion to
suppress. 2
II.
We next consider whether the district court erred in
prohibiting Drummond from presenting evidence to the jury
pertaining to his theory of vindictive prosecution. Outside the
presence of the jury, the district court permitted Drummond to
question the case agent in charge, ATF Agent Heather Cox-
McClain, regarding a meeting at which she, defense counsel, the
Assistant United States Attorney (“AUSA”), and Drummond were
present. Cox-McClain disavowed telling Drummond that he would
not be prosecuted for the narcotics offenses if he pled guilty
to the § 922(g) charge. In response to allegations by defense
counsel, AUSA Leesa Washington also denied promising Drummond
that no superseding indictment would be filed if he pled guilty.
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We also conclude that the record establishes that the
search warrant was valid and supported by probable cause.
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The district court thus denied Drummond’s request to present
this evidence to the jury.
We discern no error in the district court’s ruling.
This court has held that “[a] prosecutor’s threat to bring a
more severe indictment if the defendant refuses to cooperate
does not amount to vindictiveness as long as the defendant,
should he refuse to cooperate, is not treated worse than he
would have been if no plea bargain had been offered.” United
States v. Williams, 47 F.3d 658, 662 (4th Cir. 1995); see also
United States v. Wilson, 262 F.3d 305, 315 (4th Cir. 2001)
(opining that a prosecutor’s pretrial decisions “will rarely, if
ever,” give rise to a presumption of vindictiveness based on
timing). Thus, as a matter of law, there was no basis from
which to infer a vindictive motive for the prosecutor’s decision
to pursue a superseding indictment. Accordingly, the district
court’s denial of Drummond’s request to pursue this line of
questioning was more than proper.
III.
Finally, we review the basis for the twenty-year
mandatory minimum sentences (concurrent) imposed on Counts One
and Two. In the 21 U.S.C. § 851 (2006) information filed prior
to trial, the Government identified that Drummond was convicted
in 2001 of a felony drug offense. Thus, Drummond was on notice
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of the Government’s intent to pursue the enhanced statutory
mandatory minimum authorized by 21 U.S.C.A. § 841(b)(1)(A).
According to his presentence report, Drummond was
sixteen years old when he engaged in the criminal conduct
underlying that conviction, but he pled guilty, two years later,
in the General Sessions Court for Spartanburg County. Drummond
argued that, because he was a juvenile at the time of the
criminal conduct, this conviction could not be used to support
the enhanced penalty. The district court disagreed, finding the
fact that Drummond pled guilty in General Sessions Court
established that he was convicted as an adult.
Counsel points to no authority to support the
proposition that the district court erred in relying on this
conviction, and we have found none. The Sixth Circuit, however,
recently rejected this very argument, concluding that “[n]othing
in § 841(b)(1)(A) indicates that a defendant’s age at the time
of his or her prior conviction is relevant to the application of
§ 841, but to the extent that it is, age would appear to matter
if it was related to the process in which a defendant’s prior
conviction was obtained.” United States v. Graham, 622 F.3d
445, 457 (6th Cir. 2010). The defendant in that case, like
Drummond, was convicted and sentenced as an adult, although he
was arrested as a juvenile. Id. Thus, the court ruled that the
prior conviction was properly utilized to enhance the statutory
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mandatory minimum. Id. at 459. We are persuaded by the
rationale expressed in Graham and therefore conclude the
district court properly relied on this conviction to impose the
enhanced mandatory minimum sentence.
IV.
In accordance with Anders, we have thoroughly reviewed
the entire record in this case and found no non-frivolous
issues. Accordingly, we affirm the district court’s amended
criminal judgment. This court requires that counsel inform the
client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy was served on the client. 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
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