UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4954
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID MICHAEL PERSONS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:11-cr-00011-1)
Submitted: August 21, 2013 Decided: December 6, 2013
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jane Moran, JANE MORAN LAW OFFICE, Williamson, West Virginia,
for Appellant. R. Booth Goodwin II, United States Attorney,
Joshua C. Hanks, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
I.
David Michael Persons began using heroin to manage the pain
from a past motorcycle accident, and he sold heroin and cocaine
in order to support his addiction. After an unsuccessful
attempt on March 1, 2010, West Virginia law enforcement
successfully used two informants to make three “controlled buys”
of heroin from Persons at his home in West Columbia, West
Virginia in March 2010. On April 15, 2010, the police obtained
an anticipatory search warrant for Persons’ home based on their
assertion that one of the informants had arranged a fourth
controlled buy wherein Persons would meet with his heroin source
in Huntington, West Virginia and call the informant when he
returned home with the drugs that evening. The execution of the
search warrant was thus to be triggered by Persons’ phone call
to the informant stating that the heroin was available.
When Persons did not call as expected on April 15, 2010,
the informant called Persons, who advised that “he was having
trouble with his source and would not likely have any heroin
available that night.” J.A. 59. On April 20, 2010, the
informant called Persons again, and Persons stated that “he
would have heroin available later in the day after he could
secure enough buyers to justify a trip to his source.” Id. The
informant paid Persons $200 in advance for the heroin, and
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Persons called the informant later that evening and stated that
the heroin was ready to be picked up at his home. Upon
receiving this information, West Virginia State Police and a
special agent from the Drug Enforcement Administration executed
the search warrant, seizing heroin, digital scales, and two
firearms, inter alia, from Persons’ home.
Persons was indicted on February 4, 2011 on two counts of
distribution of heroin, one count of distribution of cocaine,
and one count of possession with intent to distribute heroin,
all in violation of 21 U.S.C. § 841(a)(1). On March 11, 2011,
Persons filed a motion to suppress the evidence seized from his
home, arguing that the search warrant was not executed forthwith
as required by state law since it was executed more than four
days after the date the police anticipated receiving Persons’
phone call stating that the heroin was available. After a
hearing, the district court denied the motion to suppress.
On June 2, 2011, Persons signed a written plea agreement
and agreed to plead guilty to violating 18 U.S.C. § 924(c)(1),
possession of a firearm in furtherance of possession with intent
to distribute heroin, in exchange for the dismissal of the
indictment. Persons also signed a stipulation of facts
incorporated into the plea agreement that admitted the
underlying facts of the conduct charged in the indictment. The
plea agreement contained a provision allowing the United States
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to use and introduce the stipulation of facts in its case-in-
chief, cross-examination, or rebuttal if Persons withdrew from
or breached the plea agreement. By signing the plea agreement,
Persons also represented that he knowingly and voluntarily
waived any right he has pursuant to Fed. R. Evid. 410 that would
otherwise prohibit such use of the stipulation of facts.
Persons’ guilty plea hearing was to take place on June 13,
2011. Persons initially appeared in court, but the start of the
hearing was delayed for thirty minutes, and when it resumed,
Persons was not present in the courtroom. J.A. 69. At that
time, defense counsel advised the court that Persons no longer
wished to plead guilty based on a misunderstanding between
counsel and Persons, though counsel had not yet had time to
discuss the implications of this decision with Persons “in view
of the provisions in the plea agreement about the stipulation
. . .” Id. On June 15, 2011, a superseding indictment was
filed against Persons charging him with the original four counts
in addition to one count for being a felon in possession of
firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and one count for possession of firearms in furtherance of a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1).
On July 18, 2011, Persons filed a motion to exclude the
stipulation of facts, explaining that defense counsel did not
carefully read the indictment until the morning of the guilty
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plea and had previously estimated that Persons would be subject
to a recommended sentence of 60 months based on his belief that
Persons’ prior conviction for failure to comply did not render
him a Career Offender. However, in light of the recently
decided Sykes v. United States, 131 S.Ct. 2267 (2011), counsel
concluded that Persons was indeed probably subject as a Career
Offender to a sentencing guideline range of at least 262 to 327
months. On August 1, 2011, the district court granted counsel’s
subsequent motion to withdraw based on counsel’s asserted
potential conflict of interest in the event that Persons pursued
an ineffective assistance of counsel claim based on counsel’s
advice. After appointment of new counsel and a subsequent
motions hearing, the court denied Persons’ motion to exclude the
stipulation of facts without prejudice on November 22, 2011.
A two-day trial began on July 31, 2012. Persons informed
the court that he did not intend to further challenge the
government’s use of the stipulation of facts for cross-
examination, but that he reserved his right to later object.
The United States referenced the stipulations when cross-
examining a defense witness on the first day of trial, over
defense counsel’s objection. J.A. 313. On the second day,
Persons decided to testify after the district court advised him
that the government obviously intended to use the stipulations
to question him. Persons testified that he signed the plea
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agreement and stipulation of facts believing he would receive a
sentence of 5 years. During cross-examination, defense counsel
objected to the government’s attempt to have Persons
authenticate an edited version of the stipulations, but did not
object when the government successfully sought to admit the
stipulation of facts as an exhibit. J.A. 385.
A jury convicted Persons of the first five counts,
acquitting him of possession of firearms in furtherance of a
drug trafficking offense. In determining his relevant conduct
for sentencing purposes, the district court decreased Persons’
base offense level by two levels after finding that because he
consumed some of the heroin, Persons “actually sold a bit less
than half of the heroin that he told the police he was buying
when he was questioned [following arrest].” J.A. 488. The
court also applied a two-level enhancement for possession of
firearms in connection with drug trafficking based on the
presence of firearms in close proximity to Persons’ bed, where
he sat while conducting his drug deals. Notably, Persons was
not sentenced as a Career Offender. Based on a total offense
level of 26 and criminal history category of V, the district
court calculated Persons’ guideline range as 110 to 137 months.
The court sentenced Persons to 120 months on each count
concurrently on November 19, 2012. Persons timely appealed and
this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
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II.
Persons makes five arguments on appeal: (1) the district
court erred by allowing the stipulation of facts to be read into
the record and admitted; (2) the government’s evidence of the
drug quantity involved and the possession of firearms in
connection with drug trafficking was confusing, inconsistent,
and insufficient to support the judgment; (3) the district court
erred by refusing to allow Persons to withdraw from his plea
bargain; (4) Persons received ineffective assistance of counsel
at the time he signed the plea agreement; and (5) the district
court erred by denying his motion to suppress.
We hold that any error in admitting the stipulation of
facts was harmless, and that the district court did not err with
respect to the withdrawal of Persons’ plea agreement. We also
hold that the district court did not err in sentencing Persons,
nor in denying his motion to suppress. We are further unable to
conclusively find that Persons received ineffective assistance
of counsel. We therefore affirm the conviction and sentence.
A.
Persons first argues that the district court erred by
admitting the stipulations into evidence because (1) the court
never held a Rule 11 hearing to ensure that Persons knowingly,
intelligently, and voluntarily signed the plea agreement, and
(2) the government improperly used the stipulations for a
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purpose other than to impeach or rebut by asking Persons to
authenticate the stipulations. “We review evidentiary rulings
for abuse of discretion, and such rulings are subject to
harmless error review. . . .” United States v. Brooks, 111
F.3d 365, 371 (4th Cir. 1997). To find an error harmless, this
Court “need only be able to say ‘with fair assurance, after
pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.’” Id. (internal citations omitted).
Even assuming, without deciding, that the court erred in
admitting the stipulation of facts, any such error was harmless
because the evidence of Persons’ guilt was overwhelming.
Persons testified at trial that he distributed heroin and
cocaine to the informants on all three controlled buys in March
2010, each of which was recorded on video. J.A. 350, 363-64.
Further, law enforcement found heroin and two firearms in
Persons’ home on April 20, 2010, and he admitted on cross-
examination that he knew that it was unlawful for him to possess
a firearm due to a prior conviction. See J.A. 381. It is
further doubtful that the jury seriously considered the
stipulations as probative evidence of Persons’ guilt since it
acquitted him of possession of firearms in furtherance of a drug
trafficking offense despite his stipulation that he kept the two
firearms seized “in his bedroom in part to protect himself, his
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drugs, and his cash proceeds of drug trafficking from
individuals who may seek to steal the drugs or drug proceeds
. . .” J.A. 413-14. Any error was therefore harmless because
this Court cannot conclude that the judgment was substantially
swayed by the alleged error.
B.
Persons also argues that the government’s evidence of the
relevant conduct — the drug quantity and the connection between
the drug trafficking and the firearms found in his home — was
insufficiently reliable. We review a district court’s findings
regarding drug quantity for clear error. United States v.
Carter, 300 F.3d 415, 425 (4th Cir. 2002). “A district court’s
approximation of the amount of drugs is not clearly erroneous if
supported by competent evidence in the record.” United States
v. Randall, 171 F.3d 195, 210 (4th Cir. 1999) (internal
citations omitted). Further, “[w]e review findings of fact
relating to sentencing enhancements for clear error.” United
States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011).
Firstly, the government must prove the amount of drugs
attributable to a defendant by a preponderance of the evidence.
Carter, 300 F.3d at 425. “[A] sentencing court is entitled to
find individualized drug quantities by a preponderance of the
evidence, as part of its calculation of an advisory Guidelines
range . . . so long as its resulting sentence is within the
9
relevant statutory range.” United States v. Brooks, 524 F.3d
549, 562 (4th Cir. 2008) (internal citations omitted). “If the
district court relies on information in the presentence report
(PSR) in making findings, the defendant bears the burden of
establishing that the information relied on by the district
court in making its findings is incorrect; mere objections are
insufficient.” Randall, 171 F.3d at 210-11 (internal citations
omitted) (emphasis added).
In this case, the district court accepted the amount of
cocaine estimated in the PSR but found that Persons sold less
than half of the estimated heroin based on his statement to the
probation officer that he consumed two to three grams of heroin
daily, despite finding this statement to be an exaggeration.
Persons suggests that the court should have assigned more weight
to his claims of personal heroin use, and further argues that
the post-arrest statement considered in the PSR as a basis for
the heroin and cocaine estimates is unreliable because it was
not recorded. However, Persons does not point to any factual
finding that is actually incorrect, nor does he give any reason
why this Court should disregard the district court’s finding
that his claims of daily heroin use were not entirely credible.
This Court cannot conclude from Persons’ mere objections that
the district court erred in finding the relevant drug quantity.
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Secondly, a two-level sentencing enhancement applies when a
defendant possesses a firearm during a drug trafficking offense
“unless it is clearly improbable that the weapon was connected
with the offense.” U.S.S.G. § 2D1.1(b)(1) cmt. n.11(A). The
district court applied this enhancement based on witness
testimony that a firearm was visible upon entering Persons’ home
to conduct the drug transactions, as well as the court’s own
observation of the video recording of at least one of the
controlled buys showing a gun present in close proximity to
Persons as he conducted a drug deal. J.A. 480-81. Persons has
not identified any clear error by the district court in making
these factual findings, and upon review of the video evidence,
at least one firearm is present during the March 31, 2010
transaction in a corner next to Persons’ bed, where he sat
weighing the heroin. Accordingly, the district court did not
clearly err in finding Persons’ relevant conduct at sentencing.
C.
Persons thirdly argues that the district court erred by
refusing to allow him to withdraw from his plea bargain with the
government. We review the denial of a motion to withdraw a
guilty plea for abuse of discretion, United States v. Battle,
499 F.3d 315, 319 (4th Cir. 2007), but this standard is
inapposite here because Persons never entered a guilty plea nor
moved to withdraw a guilty plea. See J.A. 69, 73. To the
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extent that Persons seeks to have his signed plea agreement set
aside, he never made any such motion in the district court,
instead arguing only that the stipulation of facts should be
excluded. J.A. 81-83. This Court generally considers an issue
that was not raised before the district court only if refusal to
consider the issue would be plain error or a miscarriage of
justice. Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993). Neither circumstance is evident here, thus Persons’
third claim on appeal is unavailing.
D.
Persons’ fourth argument is that he received ineffective
assistance of counsel when his attorney advised him that he was
not eligible to be sentenced as a Career Offender. Persons
argues that without this erroneous advice, he never would have
signed the plea agreement or the stipulation of facts, the
latter of which was used against him during cross-examination. ∗
“A claim of ineffective assistance of counsel should be raised
by [a habeas corpus] motion under 28 U.S.C. § 2255 in the
district court and not on direct appeal, unless it conclusively
∗
Persons also suggests that the district court relied on the
stipulation of facts in determining the relevant drug quantity.
This argument is plainly belied by the record, as the district
court considered Persons’ statements to the police and probation
officer, as well as evidence of Persons’ conduct adduced at
trial, in determining the drug quantity. J.A. 486-89.
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appears from the record that defense counsel did not provide
effective representation.” United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999) (internal quotation marks and
citations omitted) (alterations in original). Under Strickland
v. Washington, 466 U.S. 668 (1984), a defendant must satisfy two
prongs in order to prove an ineffective assistance of counsel
claim: (1) that his counsel’s performance fellow below an
objective standard of reasonableness, and (2) that there is a
reasonable probability that the result of the proceeding would
have been different but for counsel’s deficient performance.
In this case, the evidence of Persons’ guilt was
overwhelming even without the stipulation of facts, see supra p.
7, and he was ultimately not sentenced as a Career Offender.
Therefore, we cannot find that it conclusively appears from this
record that Persons was prejudiced under Strickland, even if his
counsel’s performance was deficient, which we do not decide
here. This finding does not affect Persons’ right to pursue
relief under § 2255 should he choose to do so.
E.
Finally, Persons challenges the district court’s denial of
his motion to suppress. In reviewing the denial of a motion to
suppress, we review questions of law de novo and findings of
fact for clear error. See Ornelas v. United States, 517 U.S.
690, 699 (1996); United States v. Hill, 322 F.3d 301, 304 (4th
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Cir. 2003). Persons argues that the anticipatory search warrant
issued on April 15, 2010 went stale once the triggering event
cited as grounds for the warrant – the phone call from Persons
stating that heroin was available — did not occur. Persons
contends that his statement that he was having problems getting
the heroin coupled with the passage of time minimized the
probable cause underlying the warrant such that the police were
required to obtain a new search warrant. We disagree.
The execution of most anticipatory warrants is based upon
“some condition precedent other than the mere passage of time –
a so-called ‘triggering condition.’” United States v. Grubbs,
547 U.S. 90, 94 (2006). In such cases, “the probable cause
determination is two-fold: It must be true not only that if the
triggering condition occurs there is a fair probability that
contraband or evidence of a crime will be found in a particular
place, but also that there is probable cause to believe the
triggering condition will occur.” United States v. Andrews, 577
F.3d 231, 237 (4th Cir. 2009) (internal quotation marks omitted)
(citing Grubbs) (emphasis in original). When deciding whether a
warrant has become stale, the Court’s fundamental concern is
whether “the facts alleged in the warrant furnish[ed] probable
cause to believe, at the time the search was actually conducted,
that evidence of criminal activity was located at the premises
searched[.]” United States v. McCall, 740 F.2d 1331, 1336 (4th
14
Cir. 1984). In West Virginia, the police must execute a search
warrant “forthwith,” and specifically, within ten days after it
is issued. W. Va. Code Ann. §§ 62-1A-3, 62-1A-4.
The triggering event in this case was as follows: “This
search warrant, if issued[,] will be executed pursuant to [the
informant] receiving a phone call from [Persons] advising that
he has drugs for sale at his residence at that time.” J.A. 61.
In light of the ongoing investigation in which the informants
successfully bought heroin from Persons at his home three times,
there was sufficient probable cause to believe that heroin would
be found in the home upon receiving a call from Persons that he
had heroin available. There was also probable cause to believe
that the triggering phone call would occur on or shortly after
April 15, 2010 given Persons’ pattern of supplying heroin to the
informant once he obtained the drug from his supplier. For
instance, the informant successfully purchased heroin from
Persons on March 3, 2010, despite the fact that Persons had run
out of his supply when the informant attempted to buy heroin on
March 1, 2010. J.A. 349-50. Accordingly, the police were aware
at the time that Persons did not always have heroin immediately
at hand, but that when his source was depleted, Persons was able
to obtain additional heroin shortly thereafter.
Further, the delay caused by Persons’ difficulties getting
heroin from his source did not render the warrant stale.
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Persons told the informant on April 15, 2010 only that the
heroin had not yet arrived, and since he had previously provided
heroin within two days of it being unavailable, there remained
probable cause to believe that Persons would obtain heroin
within short order. Further, West Virginia allows a warrant to
be executed up to ten days after its issuance, undermining
Persons’ argument that a warrant necessarily has not been
executed “forthwith” if it is not executed on the exact date
anticipated. To the contrary, the record establishes that the
police acted promptly in executing the search on April 20, 2010,
the day that the triggering event occurred, and well within the
time allowed under West Virginia law. Because there was
probable cause underlying the anticipatory warrant, and because
this probable cause did not dissipate in the four days after the
triggering phone call was expected to take place, the district
court did not err in denying the motion to suppress.
III.
For the reasons discussed above, we affirm the district
court’s decision. 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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