UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4577
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID SCOTT BROWDER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00347-CMC-1)
Submitted: January 24, 2012 Decided: February 2, 2012
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tracey C. Green, WILLOUGHBY & HOEFER, P.A., Columbia, South
Carolina, for Appellant. Nancy Chastain Wicker, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Scott Browder was found guilty of one count of
possession with intent to distribute and distribution of 500 or
more grams of cocaine in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2006), one count of possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (2006), and one count of knowingly
failing to appear before a court in violation of 18 U.S.C.
§ 3146(a)(1), (b)(1)(A)(i) (2006). He was sentenced to a
cumulative custodial sentence of 151 months. We affirm.
On appeal, Browder’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he states
that he can find no meritorious issues for appeal. Counsel
seeks our review of various suppression and evidentiary rulings
by the district court, the district court’s advisement to
Browder regarding his right to testify, the district court’s
response to a question from the jury, and the district court’s
rulings on Browder’s sentencing objections.
We first review the district court’s denial of
Browder’s motion to suppress evidentiary items found in a mobile
home. The district court found that exclusion of the evidence
was not necessary because exigent circumstances permitted the
officers to enter the mobile home without a warrant and, even if
the entry was unconstitutional, the officers later procured a
2
search warrant and the evidence was admissible under the
independent source doctrine. We review the factual findings
underlying a district court’s ruling on a motion to suppress for
clear error and its legal conclusions de novo. United States v.
Foster, 634 F.3d 243, 246 (4th Cir. 2011). When evaluating the
denial of a suppression motion, we construe the evidence in the
light most favorable to the Government. Id.
We find that the evidence is admissible under the
independent source doctrine and thus make no comment on the
propriety of the officers’ initial entry into the mobile home.
The independent source doctrine “provides for the admissibility
of evidence if it would have been obtained even absent an
illegal search.” United States v. Bullard, 645 F.3d 237, 244
(4th Cir.), cert. denied, 132 S. Ct. 356 (2011); see also Murray
v. United States, 487 U.S. 533, 537-43 (1988). Two findings
must be made to establish that a later search was independent of
an earlier unlawful search: “first, that officers did not
include in their application for a warrant any recitation of
their earlier unlawful observations; and second, that they would
have sought a warrant even if they had not conducted the
unlawful search.” Bullard, 645 F.3d at 244 (internal quotation
marks and brackets omitted). Officers testified to the
satisfaction of both elements here. Thus, we find no error in
3
the district court’s denial of Browder’s motion to suppress the
contents of the mobile home.
Browder also objected to the admission of certain
evidence based on the items’ chains of custody. We review a
district court’s determination that an evidentiary item’s chain
of custody has been sufficiently established for abuse of
discretion. United States v. Summers, __ F.3d __, 2011 WL
6276085, at *3 (4th Cir. Dec. 16, 2011). “Establishing a strict
chain of custody ‘is not an iron-clad requirement, and the fact
of a missing link does not prevent the admission of real
evidence, so long as there is sufficient proof that the evidence
is what it purports to be and has not been altered in any
material respect.’” Id. at *7, quoting United States v. Ricco,
52 F.3d 58, 61-62 (4th Cir. 1995). Upon review of the record,
we are satisfied that the district court did not abuse its
discretion in admitting the challenged evidence.
We also review the district court’s denials of
Browder’s objections to the admissibility of testimony regarding
the marijuana found at the mobile home and Browder’s motion for
a mistrial based on the testimony. We review a district court’s
rulings on the admissibility of evidence for abuse of
discretion, and we will only overturn an evidentiary ruling that
is arbitrary and irrational. United States v. Cole, 631 F.3d
146, 153 (4th Cir. 2011). Similarly, we review the denial of a
4
motion for mistrial for abuse of discretion. United States v.
Wallace, 515 F.3d 327, 330 (4th Cir. 2008). In order to show
such an abuse of discretion, a defendant must show prejudice; no
prejudice exists if the jury could make individual guilt
determinations by following the court’s cautionary instructions.
Id. To determine whether prejudice is present, we “evaluate
whether there is a reasonable probability that the jury’s
verdict was influenced by the material that improperly came
before it.” United States v. Seeright, 978 F.2d 842, 849 (4th
Cir. 1992) (internal quotation marks omitted). We find no error
with the district court’s admissibility ruling and thus no
prejudice. The marijuana evidence here was relevant to the
prosecution for cocaine trafficking and not unfairly
prejudicial. See United States v. Strickland, 245 F.3d 368, 386
(4th Cir. 2001). Thus, we find no abuse of discretion.
Likewise, we find no error with the district court’s
advisement to Browder concerning his right to testify on his own
behalf or with the district court’s response to a question from
the jury. The district court’s statements accurately recounted
the law and did not exert any inappropriate influence.
We review Browder’s sentence under a deferential abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). We first inspect for procedural reasonableness by
ensuring that the district court committed no significant
5
procedural errors, such as failing to calculate or improperly
calculating the Guidelines range, failing to consider the 18
U.S.C. § 3553(a) (2006) factors, or failing to adequately
explain the sentence. United States v. Boulware, 604 F.3d 832,
837-38 (4th Cir. 2010). We then consider the substantive
reasonableness of the sentence under the totality of the
circumstances. Gall, 552 U.S. at 51. In doing so, we presume
that a sentence within a properly-calculated Guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007). Our review of the record uncovers no error warranting
resentencing.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Browder, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Browder 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 thereof
was served on Browder.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
6
before the court and argument would not aid the decisional
process.
AFFIRMED
7