Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-28-2008
USA v. Evans
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2650
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2650
____________
UNITED STATES OF AMERICA
v.
STEVEN EVANS,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 04-cr-00584 and 04-cr-00586)
District Judge: Honorable Timothy J. Savage
____________
Submitted Under Third Circuit LAR 34.1(a)
March 6, 2008
Before: FISHER, GREENBERG and ROTH, Circuit Judges.
(Filed: March 28, 2008)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Two issues are raised in this criminal appeal: the validity of a search warrant
precedent to a vehicle search and the validity of a sentence that did not distinguish
between crack and cocaine base for purposes of the criminalizing statute. For the reasons
that follow, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On September 22, 2004, the Government filed a four-count indictment against
Steven Evans on drug (Counts I and II) and firearm (Counts III and IV) charges.
An evidentiary hearing on Evans’ motion to suppress was conducted on April 14
and 19, 2005. There, Officer Timothy Riley testified to his activities on January 8, 2003,
from approximately 8:20 to 9:15 in the evening. He and another officer had established a
surveillance on the 4400 block of Colorado Street in Philadelphia, following complaints
of drug sales and drug-related shootings in the area. Officer Riley noticed that Evans was
standing on the west side of Colorado Street in front of a black 1998 Chevrolet Tahoe
parked in front of 4450 North Colorado Street.
Within five minutes, Officer Riley, with the aid of binoculars, saw an individual
approach Evans and exchange money for “something” that Evans took out from the
Tahoe. Shortly thereafter, Officer Riley observed a similar engagement between Evans
and another individual. After driving away from the block, Evans returned approximately
30 minutes later and encountered Izell Stewart, who gave Evans money in exchange for
an object, again removed from the Tahoe. Police stopped Stewart as he walked away
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from the area, and found on his person a small green packet and a small clear packet, both
containing cocaine base. Shortly thereafter, at approximately 9:15, Evans walked away
from the Tahoe to 1708 Wingohocking Avenue, where officers arrested him.
Officers then opened the Tahoe (still parked on Colorado Street) and determined
that no one else was inside. They then transported the car to police headquarters using a
key they recovered from Evans. Officer Riley then applied for and obtained Search
Warrant Control No. 107057 to search the Tahoe. The affidavit accompanying the
warrant detailed the above facts of January 8, 2003. Upon executing the warrant, officers
seized thirty-three green plastic packets of cocaine base, six clear baggies of cocaine base,
$200 cash, a loaded Glock 9 mm semiautomatic pistol, and fifteen live rounds. After
concluding the hearing, the District Court denied the motion to suppress.
On September 19, 2005, the matter proceeded to trial. The jury found Evans guilty
on all four counts. On May 4, 2006, the District Court sentenced Evans to 6 months on
Counts I and IV concurrently, 60 months on Count II consecutively, and 60 months on
Count III consecutively, for an aggregate sentence of 126 months, which is below the
applicable Guidelines range of 157 to 181 months. Evans filed a timely notice of appeal.
II.
We have jurisdiction under 28 U.S.C. § 1291. United States v. Perez, 280 F.3d
318, 327 (3d Cir. 2002). We review “the District Court’s denial of a motion to suppress
for clear error as to the underlying factual findings and exercise[] plenary review of the
District Court’s application of the law to those facts.” Id. at 336. We also exercise
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plenary review over sentencing claims raising purely legal issues of statutory
interpretation. See United States v. Singletary, 268 F.3d 196, 199 (3d Cir. 2001).
A.
Evans argues first that the District Court should have granted his motion to
suppress because the warrant underlying the search of his Tahoe was not supported by
probable cause. In considering this argument we must determine “whether, given all the
circumstances set forth in the affidavit . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” United States v. Williams, 124
F.3d 411, 420 (3d Cir. 1997) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Here, there was ample information set forth in the affidavit to support the
determination that evidence of crime would be found in the Tahoe. Officer Riley
observed three transactions with different individuals in which Evans reached into the
Tahoe to procure objects upon receipt of cash. The third transaction (involving Stewart)
yielded the seizure of cocaine base on Stewart’s person just moments after his encounter
with Evans. There was thus a fair probability that more such contraband would be found
in the Tahoe. Based on this information and other circumstances pertinent to an
experienced narcotics officer, Officer Riley applied for a warrant to search the Tahoe.
We previously have found probable cause under similar circumstances. In United
States v. Burton, 288 F.3d 91 (3d Cir. 2002), we approved a vehicle search because the
officers observed the defendant “leave what they thought to be a drug deal and place the
results of that transaction in his trunk.” Id. at 100. Further, that case dealt with a
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warrantless search, so in this case we are even more constrained – as was the District
Court – to disturb the independent approval of probable cause signified by a warrant. See
United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (“The issuing judge or
magistrate may give considerable weight to the conclusions of experienced law
enforcement officers regarding where evidence of a crime is likely to be found and is
entitled to draw reasonable inferences about where evidence is likely to be kept, based on
the nature of the evidence and the type of offense.”). Accordingly, there was probable
cause to support the search warrant that Evans challenges, and the District Court correctly
denied his motion to suppress the fruits of the search conducted pursuant to that warrant.
B.
As to his sentence, Evans challenges only the 60 months (five years) he received
on Count II: possession of cocaine base with intent to distribute. He argues that we
should overrule United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001), which held that
“‘cocaine base’ encompasses all forms of cocaine base with the same chemical formula
when the mandatory minimum sentences under 21 U.S.C. § 841(b)(1) are implicated.”
Id. at 467. Section 841(b)(1) imposes a five-year mandatory minimum for offenses
involving five grams or more of cocaine base. Evans concedes that the jury found him
guilty of possession with intent to distribute more than five grams of cocaine base, but
argues that § 841(b)(1)’s definition of “cocaine base” means crack only and not the form
of cocaine base that the record showed he possessed. Evans acknowledges that Barbosa
squarely forecloses that argument.
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Other than citing cases from other courts of appeals predating and thoroughly
analyzed in Barbosa, Evans does not cite any authority that overrules or abrogates
Barbosa. Our cases “loosening” the 100:1 crack/powder cocaine ratio are inapposite
because they deal with the Sentencing Guidelines, not the statutory mandatory minimum.
See, e.g., United States v. Gunter, 462 F.3d 237, 248-49 (3d Cir. 2006) (distinguishing
between Sentencing Guidelines and the minima and maxima of § 841(b)). The same can
be said for Kimbrough v. United States, 128 S. Ct. 558 (2007), in which the Supreme
Court held that a district court should be free to consider the disparity inherent in the
Guidelines ratio when considering a sentence’s reasonableness. Id. at 573. Neither
Kimbrough nor our cases authorize a district court to exempt non-crack forms of cocaine
base from the definition of cocaine base for purposes of § 841(b)(1), so we have no
occasion here to reconsider Barbosa.
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
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