United States v. Handberry

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5076

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARRYL HANDBERRY,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (4:08-cr-00009-FL-1)

Submitted: February 26, 2010 Decided: March 19, 2010

Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Darryl Handberry pled guilty to making false

statements, in violation of 18 U.S.C. § 924(a)(1)(A) (2006), and

possession and receipt of an unregistered firearm, in violation

of 26 U.S.C. §§ 5841, 5861(d), and 5871 (2006), while reserving

the right to appeal the denial of his motion to suppress

evidence seized from his residence. On appeal, Handberry argues

that the district court erred in denying his motion to suppress

and also contends that the district court clearly erred in

imposing a four-level enhancement for use and possession of a

weapon during another felony under U.S. Sentencing Guidelines

Manual (“USSG”) § 2K2.1(b)(6) (2007) of the Sentencing

Guidelines. For the following reasons, we affirm.

I.

In spring 2007, the Beaufort County Sheriff’s

Department was contacted by a cooperating witness (“CW”), who

informed the Department that he was able to buy cocaine and

marijuana from a black male known as “D.” On March 27, CW

contacted “D,” who was later identified as David Pierre, and

agreed to purchase cocaine from him at the Clifton Park

Apartments. Later that day, CW purchased marijuana and cocaine

from Pierre and another, unidentified black male driving a green

Jeep. Two days later, CW again contacted Pierre and ordered an

2
“eight ball” of powder cocaine; Pierre told CW to meet him on

Bonner Street near 11th Street, and the transaction occurred

without incident. Next, on April 2, 2007, CW ordered half of an

ounce of powder cocaine from Pierre, who again instructed CW to

meet him on Bonner Street near 11th Street.

Finally, on April 9, CW called Pierre around 4:30 p.m.

to order three-quarters of an ounce of powder cocaine. Pierre

instructed CW to meet him at the Clifton Park Apartments. By

this time, the Sheriff’s Department was operating surveillance

at 1124 Bonner Street, where they believed Pierre was residing.

On that day, deputies witnessed Pierre exit the residence and

enter a car driven by a white female, identified later as Megan

Midyette. Pierre arrived at the Clifton Park Apartments at 5:05

p.m. and completed the transaction with CW, at which point both

Pierre and Midyette were detained by deputies. Pierre was

arrested and charged with several drug offenses, and Midyette

was transported back to the Sheriff’s Department after she

offered to cooperate with the investigators. At the Department,

Midyette told one of the arresting officers that she was at 1124

Bonner Street to purchase marijuana from Pierre and did not know

that Pierre was selling cocaine.

While Midyette and Pierre were in transit, other

deputies, led by Lieutenant Russell Davenport, returned to 1124

Bonner Street, arriving there at 5:10 p.m. When Davenport

3
approached the house, he heard loud music and knocked on the

door without announcing his identity. Receiving no response,

Davenport turned an unlocked doorknob and entered the house.

Upon entering, Davenport noticed a strong smell of marijuana.

Davenport and the other deputies moved into the house, guns

raised, and shouted that any individuals in the home should lie

down on the floor. The deputies detained two residents, Darryl

Handberry, the home’s owner, and another individual, Randall

Dentley. When deputies pulled Handberry up to handcuff him,

they discovered he was lying on a Hi-Point pistol. Once inside

the home, deputies also viewed cocaine and marijuana lying on a

table in plain view. The deputies performed a sweep of the

house to ensure there were no other occupants, and placed

Handberry and Dentley in patrol cars.

While deputies remained at the house, Lt. Davenport

returned to the Sheriff’s Department to apply for a search

warrant for the house. The search warrant affidavit described

the surveillance of 1124 Bonner Street and identified it as the

residence of Pierre, and noted the presence of the green Jeep

used in one of CW’s buys. The affidavit also stated that

deputies watched Pierre leave the residence that day with Megan

Midyette to travel to Clifton Park Apartments to complete a drug

transaction with CW. The affidavit referenced Midyette’s post-

detention statement that she went to 1124 Bonner Street to

4
purchase marijuana but that Pierre first asked her to drive him

to the Clifton Park Apartments. Finally, the affidavit

described the deputies’ securing of the residence under “exigent

circumstances.” The affidavit stated that while securing the

premises Davenport witnessed cocaine, marijuana, digital scales,

and a Hi-Point pistol in plain view in the living room.

The search warrant was approved at 7:00 p.m. and was

executed by Investigator Boyd. The search eventually produced

several items of evidentiary value, including a sawed-off

shotgun hidden under the couch and several handguns. During the

search, Handberry motioned Investigator Boyd over to the patrol

car where he was being detained and asked what was happening.

Investigator Boyd informed Handberry that the deputies were

trying to ascertain what the guns were doing in the house, and

Handberry replied that he purchased the shotgun for protection

“off the street” and that the handguns recovered from the house

were not his. At the time of this conversation, Handberry had

not been read his Miranda * rights.

Based upon these events, a federal grand jury sitting

in the Eastern District of North Carolina returned an eight-

count indictment against Handberry and Pierre. The indictment

charged Handberry and Pierre with conspiracy to make false

*
Miranda v. Arizona, 384 U.S. 436 (1966).

5
statements in connection with a firearms transaction, in

violation of 18 U.S.C. § 371 (2006) (Count One), and making

false statements, in violation of 18 U.S.C. § 924(a)(1)(A)

(Count Two), and charged Handberry with possession and receipt

of an unregistered firearm—the sawed-off shotgun recovered from

the search—in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871

(Count Three). The five remaining charges referred only to

Pierre.

Handberry filed a motion to suppress the evidence

seized from his home, contesting the warrantless nature of the

initial search. During the suppression hearing, Lt. Davenport

testified that it was a common practice for drug dealers in high

crime neighborhoods to communicate with each other regarding

recent drug arrests in the area. Davenport testified that as a

result, the target of a search is often able to destroy or move

evidence before a search warrant is obtained. Davenport

explained that the arrests of Midyette and Pierre occurred in

the parking lot of an apartment complex roughly one-half mile

from 1124 Bonner Street, and for that reason, the deputies

secured the house before obtaining a search warrant. Davenport

also testified that he witnessed another individual under

investigation for drug dealing in the parking lot at the time

Midyette and Pierre were arrested.

6
 Following this hearing, a magistrate judge issued a

written Memorandum recommending denial of the motion. Handberry

filed an objection to the magistrate judge’s report, but the

district court denied the motion to suppress. Thereafter,

pursuant to a written plea agreement, Handberry pled guilty to

Count Two and Count Three, conditioned on his right to appeal

the denial of his motion to suppress the evidence. The district

court sentenced Handberry to forty-six months imprisonment and

three years of supervised release and Handberry noted a timely

appeal.

II.

On appeal, Handberry raises three issues: (1) whether

the district court erred in denying his motion to suppress the

firearms discovered during the search at 1124 Bonner Street; (2)

whether the district court erred in denying his motion to

suppress the statements given to Investigator Boyd; and (3)

whether the district court clearly erred in adding a four-point

enhancement for use and possession of a weapon during another

felony under USSG § 2K2.1(b)(6) in sentencing Handberry.

A.

Handberry first argues that the district court erred

in denying his motion to suppress. In addressing the denial of

such a motion, we review the district court’s findings of

7
historical fact for clear error, giving “due weight to

inferences drawn from those facts by resident judges and local

law enforcement officers,” and review de novo the ultimate legal

conclusion. Ornelas v. United States, 517 U.S. 690, 699 (1996).

And, “[b]ecause the district court denied the motion to

suppress, we construe the evidence in the light most favorable

to the Government.” United States v. Perkins, 363 F.3d 317, 320

(4th Cir. 2004).

In denying Handberry’s motion to suppress the firearms

seized from 1124 Bonner Street, the district court found that

the deputies possessed probable cause to search the residence

and that exigent circumstances excused their failure to obtain a

warrant prior to entry. In the alternative, the district court

found that the independent source doctrine applied because “a

sufficient amount of genuinely independent evidence . . .

supported the [search warrant] affidavit.” Because we agree

with the district court that the independent source doctrine

applies, we need not address whether exigent circumstances

permitted the warrantless entry.

Under the Fourth Amendment, “even when officers have

probable cause to believe that contraband is present in a home,

a warrantless search of the home is unlawful unless exigent

circumstances exist at the time of entry.” United States v.

Mowatt, 513 F.3d 395, 399 (4th Cir. 2008).

8
 In Murray v. United States, the Supreme Court

recognized that “a later, lawful seizure is genuinely

independent of an earlier, tainted one”—and the independent

source doctrine applies—unless “the agents’ decision to seek the

warrant was prompted by what they had seen during the initial

entry, or if information obtained during that entry was

presented to the Magistrate and affected his decision to issue

the warrant.” 487 U.S. 533, 542 (1988) (footnote omitted). The

Murray Court specifically applied the independent source

doctrine to a case in which execution of a search warrant was

preceded by an illegal search of the same premises. In such

cases, the Court held, the evidence recovered in the later

search is not admissible unless the government establishes that

“no information gained from the illegal [search] affected either

the law enforcement officers’ decision to seek a warrant or the

magistrate’s decision to grant it.” Id. at 540; see United

States v. Dessesaure, 429 F.3d 359, 369 (1st Cir. 2005)

(similar); United States v. Herrold, 962 F.2d 1131, 1140 (3d

Cir. 1992) (similar).

In this case, the magistrate judge and district court

both concluded that, even assuming the original warrantless

search was improper, the independent source doctrine applied

because a “sufficient amount of genuinely independent evidence”

supported the search warrant affidavit. On appeal, Handberry

9
argues that, absent the information gleaned from the original

search—i.e., the marijuana, cocaine, digital scale and Hi-Point

pistol—there was insufficient evidence to support a finding of

probable cause.

The determination of whether probable cause exists

depends on the totality of the circumstances and involves a

“practical, common-sense decision whether . . . there is a fair

probability that contraband or evidence of a crime will be found

in a particular place.” Illinois v. Gates, 462 U.S. 213, 238

(1983). Because “probable cause is a fluid concept—turning on

the assessment of probabilities in particular factual contexts—

not readily, or even usefully, reduced to a neat set of legal

rules,” id. at 232 we “give due weight to inferences drawn from

[the] facts by . . . local law enforcement officers,” Ornelas,

517 U.S. at 699; see also United States v. Dickey-Bey, 393 F.3d

449, 453 (4th Cir. 2004) (“Under this pragmatic, common sense

approach, we defer to the expertise and experience of law

enforcement officers at the scene.”). “[T]he crucial element is

not whether the target of the search is suspected of a crime,

but whether it is reasonable to believe that the items to be

seized will be found in the place to be searched.” United

States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993).

On balance, we agree with the district court that

sufficient independent evidence supported the search warrant

10
affidavit. The Sheriff’s Department had identified 1124 Bonner

Street as Pierre’s residence and had engaged in three undercover

cocaine purchases from Pierre. The green Jeep used to transport

Pierre to one of the purchases was located at the residence. On

the day in question, Pierre left the residence and drove

directly to the Clifton Park apartments, where he completed the

sale of cocaine to CW, suggesting that his cocaine supply was

located at 1124 Bonner Street. In addition, Midyette told

Investigator Boyd that she went to the residence to purchase

marijuana. These facts, all of which were obtained independent

of the initial entry and search, support a finding of probable

cause.

In addition, ample evidence suggests that the original

search did not play a role in Lt. Davenport’s decision to seek a

warrant. Davenport testified that he believed the 1124 Bonner

Street residence needed to be secured because of his concern

that another drug dealer would notify the residents of Pierre’s

arrest. The original search reflected that understanding, as

Davenport and the deputies detained Handberry and the other

resident, swept the remainder of the house for individuals, and

then exited. Other than spotting the items in plain view, no

search for contraband occurred. Indeed, the sawed-off shotgun

was found during the execution of the warrant and not during the

initial search. The scope of this initial search supports the

11
inference that Lt. Davenport would have applied for the search

warrant absent the evidence found in plain view. Therefore, the

district court did not err in denying the motion to suppress.

B.

Handberry next argues that the district court erred in

admitting his statement to Investigator Boyd that he purchased

the sawed-off shotgun recovered from the residence. The

Government argues that Handberry may not challenge this ruling

on appeal by virtue of his conditional guilty plea.

“A voluntary and intelligent plea of guilty is an

admission of all the elements of a formal criminal charge, and

constitutes an admission of all material facts alleged in the

charge.” United States v. Willis, 992 F.2d 489, 490 (4th Cir.

1993) (internal quotation marks and citations omitted). “When a

defendant pleads guilty, he waives all nonjurisdictional defects

in the proceedings conducted prior to entry of the plea.”

United States v. Bundy, 392 F.3d 641, 644 (4th Cir. 2004).

Thus, “when the judgment of conviction upon a guilty plea has

become final and the offender seeks to reopen the proceeding,

the inquiry is ordinarily confined to whether the underlying

plea was both counseled and voluntary.” Id.

Based upon these considerations, “direct review of an

adverse ruling on a pretrial motion is available only if the

defendant expressly preserves that right by entering a

12
conditional guilty plea” pursuant to Rule 11(a)(2). United

States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990). “This

approach comports with the general rule that conditions to a

plea are not to be implied.” Bundy, 392 F.3d at 645 (internal

quotation marks omitted).

Handberry unconditionally pled guilty to Count Two and

conditionally pled guilty to Count Three. The written plea

agreement contains the following language:

The parties agree:

a. Pursuant to the defendant’s conditional plea of
guilty to [] Count Three of the Indictment herein and
pursuant to Fed. R. Crim. P. 11(a)(2), that the
defendant reserves the right to appeal from the
portion of the Court’s adverse decision on Defendant’s
Motion to Suppress Evidence, filed July 7, 2008,
denying the defendant’s motion to suppress the sawed-
off shotgun obtained during the April 9, 2007, search
of the defendant’s residence.

(J.A. at 206).

During the Rule 11 colloquy, Handberry stated that he

understood the conditional guilty plea he was entering, and the

plea agreement specifically conditions the plea to Count Three

on Handberry’s right to appeal only “from the portion of the

Court’s adverse decision . . . denying the defendant’s motion to

suppress the sawed-off shotgun.” Nothing during the Rule 11

colloquy suggests that Handberry understood the provision

differently or believed that he would be able to appeal the

admission of his statement. Accordingly, we agree with the

13
Government that Handberry failed to preserve this issue for

appeal.

C.

Finally, Handberry challenges the four-level

enhancement for use and possession of a weapon during another

felony under USSG § 2K2.1(b)(6). The district court added this

enhancement after accepting the probation officer’s finding that

Handberry permitted Pierre to use one of the handguns during his

drug trafficking operation. On appeal, Handberry challenges

this finding while the Government contends that the appeal

waiver contained in the plea agreement bars consideration of the

issue.

A defendant may waive the right to appeal if that

waiver is knowing and intelligent. United States v. Blick, 408

F.3d 162, 169 (4th Cir. 2005). Generally, if the district court

fully questions a defendant regarding the waiver of his right to

appeal during the Rule 11 colloquy, the waiver is both valid and

enforceable. See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68

(4th Cir. 1991). Whether a defendant validly waived his right

to appeal is a question of law that this court reviews de novo.

Blick, 408 F.3d at 168. An appeal waiver does not, however, bar

the appeal of a sentence imposed in excess of the statutory

maximum or a challenge to the validity of a guilty plea. United

14
States v. General, 278 F.3d 389, 399 n.4 (4th Cir. 2002); United

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

The plea agreement contained the following appellate

waiver:

The Defendant agrees:

c. To waive knowingly and expressly all rights,
conferred by 18 U.S.C. § 3742, to appeal whatever
sentence is imposed, including any issues that relate
to the establishment of the advisory Guideline range,
reserving only the right to appeal from a sentence in
excess of the applicable advisory Guideline range that
is established at sentencing, and further to waive all
right to contest the conviction or sentence in any
post-conviction proceeding . . . excepting an appeal
or motion based upon grounds of ineffective assistance
of counsel or prosecutorial misconduct not known to
the Defendant at the time of the Defendant’s guilty
plea.

(J.A. at 204).

During the Rule 11 colloquy, the magistrate judge

specifically referenced the appeal waiver with Handberry,

ensuring that he understood its ramifications. Handberry

stated, under oath, that he understood the appeal waiver, and

there is no suggestion that he was under the influence of drugs

or alcohol at the time of the Rule 11 colloquy. In addition,

Handberry had three years of college education, and his attorney

indicated that he had no difficulty communicating with him.

On appeal, Handberry does not contest any of these

facts, and, accordingly, we agree with the Government that this

issue, which relates to Handberry’s guideline sentence and does

15
not involve any of the exceptions discussed in General or Marin,

is clearly covered by the appellate waiver.

III.

For the foregoing reasons, we affirm Handberry’s

conviction and sentence. 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

16