United States v. David Persons

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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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