United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1999 Decided October 26, 1999
No. 98-3083
United States of America,
Appellee
v.
Kevin C. Williams,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00145-01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender.
Thomas S. Rees, Assistant U.S. Attorney, argued the cause
for appellee. With him on the briefs were Wilma A. Lewis,
U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assis-
tant U.S. Attorneys.
Before: Wald, Silberman and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: In Jones v. United States, 119 S. Ct.
1215 (1999), the Supreme Court held that a factor that
increases a defendant's sentence under the federal carjacking
statute is an element of the crime that the jury must find
beyond a reasonable doubt, rather than a sentencing factor to
be decided by the sentencing judge. In this case, a jury
convicted Appellant of possessing a detectable amount of
cocaine base with intent to distribute in violation of 21 U.S.C.
s 841. Appellant argues that Jones requires us to reverse
the district court's ruling that the quantity of drugs he
possessed is a sentencing factor, not an element of the
offense. Concluding that Jones' effect on section 841 is not
sufficiently clear to permit a panel of this court to reconsider
our precedent holding that quantity is a sentencing factor, not
an element of the offense, and finding Appellant's other
claims without merit, we affirm.
I
Section 841(a) makes it unlawful for any person to possess
with intent to distribute a controlled substance. 21 U.S.C.
s 841(a)(1). Subsection (b)(1) of section 841 specifies differ-
ent penalties depending on the amount and type of controlled
substance at issue: ten years to life for fifty grams or more of
crack; five to forty years for five grams or more of crack;
and up to twenty years for less than five grams of crack.
The difference in the amount of drugs attributed to Appel-
lant, Kevin Williams, at different stages of his prosecution
forms the basis of his Jones argument. The grand jury
indicted him for possessing with intent to distribute fifty
grams or more of cocaine base. The jury was instructed that
it could convict if it found he possessed with intent to
distribute a detectable or measurable amount. The district
court found that he possessed sixty-six grams and imposed a
sentence of ten years under the Sentencing Guidelines. Rely-
ing on Jones, Williams argues that quantity is an element of a
section 841 offense and that because the jury was instructed
that it could convict him if it found that he possessed a
"detectable" or "measurable" amount of cocaine base, the
district court erred by imposing a penalty for possessing
more than fifty grams.
Before considering Williams' Jones argument, we must first
address the Government's contention that we need not reach
the issue at all. Specifically, the Government claims that
Williams failed to preserve the issue for appeal because he
never presented it to the district court. We disagree. Fol-
lowing the close of evidence, Williams moved for judgment of
acquittal, expressly arguing that quantity is an element of the
offense and that the Government had failed to prove that the
quantity of drugs at issue exceeded fifty grams. Denying the
motion, the district court ruled that quantity "is not an
essential element ... of the offense charged under our case
law." After addressing several other issues, the district court
reiterated that quantity is not an element of a section 841
offense. To be sure, defense counsel lodged no objection to
the district court's "detectable amount" jury instructions.
But having had his argument that quantity is an element of
the offense twice rejected by the district court, Williams had
no obligation to go through the futile exercise of interposing
the same objection to the jury instructions.
The Government urges us not to reach Williams' argument
for a second reason. It claims that even if Williams were
correct that quantity is an element of a section 841 offense,
his sentence would not be affected because, as calculated by
the district court under the Sentencing Guidelines, it fell well
below section 841's twenty-year maximum for defendants who
(like Williams) are convicted of possessing a detectable or
measurable amount of crack. See 21 U.S.C. s 841(b)(1)(C).
Under these circumstances, the Government argues, the Su-
preme Court's recent decision in Edwards v. United States,
523 U.S. 511 (1998), bars us from addressing Williams' argu-
ment. Again, we disagree.
In Edwards, the defendants were convicted of conspiring to
possess with intent to distribute cocaine or crack. 523 U.S. at
513. Applying the Sentencing Guidelines, the district judge
calculated defendants' sentences based on his finding that the
illegal conduct involved both cocaine and crack. Defendants
argued that because the jury had convicted them of partici-
pating in a cocaine or crack conspiracy, the district judge
erred by sentencing them for crack-related conduct rather
than for a cocaine-only conspiracy. The Court declined to
reach the merits of this argument since, even were it correct,
their sentences would not have been affected. This was so
because the Sentencing Guidelines permitted the district
judge to consider crack-related conduct in calculating defen-
dants' sentences regardless of whether the jury found a
cocaine-only conspiracy or a crack and cocaine conspiracy,
and defendants' sentences were shorter than the statutory
maximum for cocaine-only conspiracies. Id. at 514-15.
In this case, the Government's entire Edwards argument is
set forth in two rather cryptic sentences: "[A]ppellant could
have received a maximum sentence of 20 years even if no
specific quantity of crack had been proven. His ten year
sentence was well below that maximum, and, here, as in
Edwards, the constitutional issue is not even presented."
The Government apparently is arguing that regardless of
whether Williams is correct that quantity is an element of a
section 841 offense, the district judge would retain authority
to determine quantity under the Sentencing Guidelines, and
since Williams' Guidelines sentence was less than the statuto-
ry maximum for possession with intent to distribute a detect-
able or measurable amount of crack, we have no reason to
reach the merits of his argument.
The Government's argument rests on the assumption that
under Edwards a defendant can show he was harmed only if
his sentence exceeds the statutory maximum that would have
been applicable absent the alleged error. But Edwards itself
recognized another way defendants could establish harm: by
showing that the crack-related conduct was not part of the
same course of conduct as the cocaine-only conspiracy found
by the jury. 523 U.S. at 515-16. Identifying still a third
type of harm, the defendants in Edwards argued that "the
judge might have made different factual findings" if he had
accepted their argument as correct. The Court never
reached this latter argument, however, because defendants
"seem to have raised their entire [cocaine-only conspiracy]
argument for the first time in the Court of Appeals." Id.
Not so here. Williams expressly argued in the district court
that quantity is an element of the offense to be decided by the
jury. See supra at 3. If Williams turns out to be correct, the
jury's finding that he possessed a "detectable" amount might
very well have influenced the district court's quantity deter-
mination under the Guidelines, possibly resulting in a shorter
sentence. Because Edwards never addressed this situation,
we do not think it bars our consideration of Williams' argu-
ment. We thus save for another day (when the matter is
fully briefed) consideration of Edwards' precise scope and
turn to the merits of Williams' argument.
II
Announced in the final days of the Supreme Court's most
recent term, Jones considered whether a factor that substan-
tially increases a defendant's sentence under the federal
carjacking statute is an element of the offense or a matter to
be decided by the district court at sentencing. As the Court
pointed out, this seemingly semantic distinction has enormous
practical significance. "[E]lements must be charged in the
indictment, submitted to a jury, and proven by the Govern-
ment beyond a reasonable doubt." 119 S. Ct. at 1219. Sen-
tencing factors may be determined by the district court.
The statute at issue in Jones provided:
Whoever ... takes a motor vehicle that has been trans-
ported, shipped, or received in interstate or foreign
commerce from the person or presence of another by
force and violence or by intimidation, or attempts to do
so, shall--
(1) be fined under this title or imprisoned not more
than 15 years, or both,
(2) if serious bodily injury ... results, be fined under
this title or imprisoned not more than 25 years, or
both, and
(3) if death results, be fined under this title or impris-
oned for any number of years up to life, or both.
18 U.S.C. s 2119 (1992). After a jury convicted Jones of
carjacking, the district court found that serious bodily injury
had occurred and imposed a longer sentence based on that
finding. On appeal, Jones argued that "serious bodily injury"
was an element of the crime that had to be submitted to the
jury. According to the Government, the statute created a
single offense--carjacking--and "serious bodily injury" was a
sentencing factor for the judge, not the jury.
The Supreme Court agreed with Jones. Analyzing the
structure of the statute and considering that serious bodily
injury has historically been considered an element of a crime,
the Court read the statute to create three separate offenses:
carjacking with no aggravating factors (maximum penalty of
fifteen years); carjacking resulting in serious bodily injury
(maximum penalty of twenty-five years); and carjacking re-
sulting in death (maximum penalty of life imprisonment).
Serious bodily injury, the Court ruled, is an element of the
offense, meaning that the higher penalty for a carjacking
offense involving serious bodily injury may be imposed only if
the indictment alleges such injury and the jury finds it
beyond a reasonable doubt.
Characterizing its interpretation as the "fairest" reading of
the statute, the Court nonetheless "recognize[d] the possibili-
ty of the other view"--i.e., interpreting the statute to make
serious bodily injury a sentencing factor. 119 S. Ct. at 1222.
But adopting that "other view," the Court said, would have
required it to address a "serious constitutional question[ ] on
which precedent is not dispositive," a question the Court
described as follows: "when a jury determination has not
been waived, may judicial factfinding by a preponderance
support the application of a provision that increases the
potential severity of the penalty for a variant of a given
crime?" Id. at 1228, 1224. Faced with interpreting a statute
"susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of
which such questions are avoided," the Court found that it
had a "duty" to adopt the latter construction. Id. at 1222
(internal quotation marks and citation omitted).
Jones has thus far been applied by two of our sister
circuits. In United States v. Davis, the Fourth Circuit faced
a Jones challenge to a South Carolina law that increased the
maximum penalty for failing to stop when signaled by a police
officer if serious bodily injury occurred. 184 F.3d 366 (4th
Cir. 1999). The court held that serious bodily injury is an
element of the offense because any other interpretation of the
statute would present the constitutional question posed in
Jones. Id. at 368-72. In United States v. NuNez, the Fifth
Circuit held that Jones "foreclose[d]" the Government's argu-
ment that use of a deadly or dangerous weapon, which raised
the maximum penalty for the offense of forcibly resisting a
federal officer from three to ten years, was a mere penalty
provision. 180 F.3d 227, 233-34 (5th Cir. 1999).
Like the penalty provisions at issue in Jones, Davis, and
NuNez, section 841 penalties vary depending upon the circum-
stances of the offense. Subsection (a)(1) provides that "it
shall be unlawful for any person knowingly or intentionally
... [to] possess with intent to manufacture, distribute, or
dispense, a controlled substance." Subsection (b) provides
that "any person who violates subsection (a) of this section
shall be sentenced ..." and goes on to set forth a wide range
of penalties depending on the quantity and type of drug
involved as well as other aggravating factors, such as serious
bodily injury and recidivism. Quantity significantly affects
the severity of the penalty. Defendants convicted of possess-
ing with intent to distribute fifty grams or more of crack face
ten years to life, while those convicted of possessing fewer
than five grams face a maximum of twenty years.
Williams argues that because quantity so dramatically af-
fects the severity of section 841 penalties, allowing the judge
to determine quantity implicates the unsettled constitutional
issue identified in Jones. Therefore, he argues, we must
consider whether the statute is susceptible to an alternative
construction that would make quantity an element of the
offense. The Government responds that, unlike the carjack-
ing statute, section 841 unambiguously makes quantity a
sentencing factor and that, so read, the statute presents no
serious constitutional concerns.
Were we writing on a clean slate, Jones would require us to
resolve this issue by asking whether treating quantity as a
sentencing factor raises "grave and doubtful constitutional
questions," and if so, whether section 841 can be interpreted
to make quantity an element of the crime. But our slate is
not clean. Unlike the Fourth and Fifth Circuits, which had
never interpreted the statutes challenged in those cases, this
circuit did construe section 841 prior to Jones and squarely
held that it makes quantity a sentencing factor, not an
element of the offense. In United States v. Patrick, we noted
"that the quantity of drug possessed is not a constituent
element of the offense of possession with intent to distribute
under 21 U.S.C. s 841(a). Quantity is relevant only to pun-
ishment; the district judge, and not the jury, makes this
determination." 959 F.2d 991, 995-96 n.5 (D.C. Cir. 1992)
(citations omitted). In United States v. Lam Kwong-Wah,
we reiterated that we had "recently joined the majority of
other circuits holding that the quantity of drugs involved in a
conspiracy or distribution charge is not a basic element of the
offense, but is rather a sentencing factor to be determined by
the judge." 966 F.2d 682, 685 (D.C. Cir. 1992) (citations
omitted). The question, then, is whether Jones effectively
overrules, i.e., "eviscerate[s]," Patrick and Lam Kwong-Wah.
See Dellums v. United States Nuclear Regulatory Comm'n,
863 F.2d 968, 978 n.11 (D.C. Cir. 1988) (Silberman, J.). We
think it does not.
To begin with, Jones never squarely held that the carjack-
ing statute would have been unconstitutional had the Court
been unable to interpret serious bodily injury as an element
of the crime. Jones held only that the opposite reading--
treating serious bodily injury as a sentencing factor--raised
sufficient constitutional doubt to require the Court, if possi-
ble, to interpret the statute as it did. That the Supreme
Court had doubts about the constitutionality of the carjacking
statute, doubts that it never had to resolve, is simply too thin
a reed to permit a panel of this court to find similar doubts in
a different statute and, based on those doubts, to depart from
circuit precedent expressly interpreting the statute as making
quantity a sentencing factor.
We are also reluctant to reexamine our precedent because
it is not at all clear whether Jones applies broadly to all
criminal statutes or is limited to the unique facts of that case.
Jones represents only the latest in a series of seemingly
conflicting cases addressing the sentencing factor versus ele-
ment issue, and its attempt to distinguish, explain, and recon-
cile earlier cases leaves unresolved several questions that lead
us to wonder about the precise scope of its holding.
The story begins with two cases that set forth the princi-
ples underpinning Jones. In re Winship, 397 U.S. 358 (1970),
held that criminal defendants have a right to have the Gov-
ernment prove each element of a crime beyond a reasonable
doubt. Mullaney v. Wilbur, 421 U.S. 684 (1975), held that
there are limitations on the state's power to circumvent
Winship by redefining elements as sentencing factors. "[I]f
Winship were limited to those facts that constitute a crime as
defined by state law," the Court reasoned, "a State could
undermine many of the interests that decision sought to
protect.... It would only be necessary to redefine the
elements that constitute different crimes, characterizing them
as factors that bear solely on the extent of punishment....
Winship is concerned with substance rather than this kind of
formalism." Id. at 698-99.
Later cases retreated from the principle set forth in Mulla-
ney. In McMillan v. Pennsylvania, 477 U.S. 79 (1986), for
instance, the Court held that a state could constitutionally
define visible possession of a firearm, a fact that triggered a
mandatory minimum sentence for certain enumerated of-
fenses, as a sentencing factor to be determined by the sen-
tencing judge, rather than as an element of the offense. The
Court noted that defendants' argument "would have at least
more superficial appeal if [the judge's finding] exposed them
to greater or additional punishment." Id. at 88. But on the
basis of the facts presented, the Court concluded that because
the statute "gives no impression of having been tailored to
permit the [sentencing factor] finding to be a tail which wags
the dog of the substantive offense," it raised no constitutional
issue. Id.
Building on McMillan, the Court held in Almendarez-
Torres v. United States, 523 U.S. 224 (1998), that an immigra-
tion statute that enhances the maximum penalty on the basis
of a judicial finding of recidivism raised no constitutional
issues. This was especially so, the Court reasoned, because
of the long tradition of treating recidivism as a sentencing
factor. Id. at 243-44. According to the Court, the only
difference between the case before it and McMillan was that
the finding of recidivism under the immigration statute al-
tered the statutory maximum, while the finding of visible
possession of a firearm affected the mandatory minimum.
Id. at 243. Observing that mandatory minimums often affect
sentences more significantly than statutory maximums, the
Court found this not to be a "determinative difference"
between the two cases. Id. at 244-45.
While Jones draws on the principles set forth in Winship
and Mullaney, it does not question the Court's later conclu-
sion in cases like McMillan and Almendarez-Torres that not
"every fact with a bearing on sentencing must be found by a
jury...." Jones, 119 S. Ct. at 1226. Jones even declares
that it "does not announce any new principle of constitutional
law, but merely interprets a particular federal statute in light
of a set of constitutional concerns that have emerged through
a series of our decisions over the past quarter century." Id.
at 1228 n.11. By framing the unresolved constitutional issue
as whether "any fact (other than prior conviction) that in-
creases the maximum penalty for a crime must be charged in
an indictment, submitted to a jury, and proven beyond a
reasonable doubt," Jones leaves undisturbed the Court's pre-
vious holdings as to mandatory minimums (McMillan) and
recidivism (Almendarez-Torres). Id. at 1224 n.6 (emphasis
added).
Yet we are not at all sure that federal courts should treat
as "unresolved" the potential constitutional issue lurking in
every sentence-enhancing statute except those involving in-
creased mandatory minimums and recidivism. For example,
if quantity (like recidivism) has historically been treated as a
sentencing factor, is the unresolved constitutional issue identi-
fied in Jones still implicated? Is it constitutionally significant
that in section 841, quantity affects both mandatory mini-
mums and maximums? Do section 841's penalty provisions,
which extend for pages, cover topics ranging from death and
serious bodily injury to water pollution on federal lands to
date rape, and significantly affect sentence severity, suggest
that the sentencing tail may be wagging the section 841 dog?
See McMillan, 477 U.S. at 88. And, if so, is examining the
relationship between a dog and its tail any longer relevant in
view of the fact that Jones mentions neither?
These unanswered questions, together with the fact that
Jones never ultimately resolved the constitutional doubts it
raised, convince us that Jones falls far short of "eviscerating"
Patrick and Lam Kwong-Wah. We therefore remain bound
by their holding that under section 841 quantity is a sentenc-
ing factor, not an element of the offense.
This leaves one remaining issue. Williams argues that if
Patrick and Lam Kwong-Wah are binding, then Jones ren-
ders section 841 unconstitutional because the question of
quantity is left to the sentencing judge. Since Williams failed
to challenge the constitutionality of section 841 before the
district court, we review for plain error. See Fed. R. Crim.
P. 52(b); Johnson v. United States, 520 U.S. 461, 466 (1997).
Williams must therefore establish (1) that there is "error," (2)
that the error is "plain," and (3) that the error "affect[s]
substantial rights." Johnson v. United States, 520 U.S. at
467 (internal quotation marks omitted). Only if Williams can
establish all three may we exercise our discretion to "notice a
forfeited error, but only if ... the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceed-
ings." Id. (internal quotation marks omitted).
Williams falls far short of satisfying this very heavy bur-
den. Even with the benefit of Jones, it is hardly "plain" that
section 841 is unconstitutional. As we indicated above, not
only does Jones expressly declare that it "does not announce
any new principle of constitutional law," but it is not at all
clear whether Jones even applies to section 841. See supra
at 10-11. Under these circumstances, we find no plain error.
III
Having concluded that in this circuit quantity remains a
sentencing factor in a section 841 offense, we turn to
Williams' alternative argument. He claims that the district
court never made a factual determination that the amount of
drugs at issue was sixty-six grams but instead erroneously
assumed that the jury had found that amount.
Williams was arrested after police officers discovered him
with his hand in a gym bag that turned out to contain crack
cocaine. The investigator who field-tested the drugs, Officer
Ramadhan, testified at trial that he tested a total of sixty-six
grams: twenty-two grams in nine small clear plastic bags and
forty-four grams in two larger bags. The two arresting
officers testified that when they arrested Williams they found
two large chunks of crack cocaine. Neither mentioned seeing
an additional nine plastic bags of drugs, although one of the
arresting officers identified the contents of an envelope that
contained the items tested by Officer Ramadhan, including
the nine small bags, as the same items that had been seized
when Williams was arrested.
Arguing that the arresting officers' testimony conflicted
with Officer Ramadhan's, that this inconsistency fatally un-
dermined the Government's case, and that in any event there
was insufficient evidence of possession to convict, Williams
moved for judgment of acquittal at the close of the Govern-
ment's case. Although the district court acknowledged that
the testimony was potentially conflicting, it found that "there
is certainly sufficient evidence as to the chain of custody and
the type and quantity of drugs that were seized," and, while
characterizing the Government's evidence of possession as
"thin," it found sufficient evidence to submit the issue to the
jury.
At sentencing, defense counsel again pointed out the incon-
sistency in the testimony with respect to the twenty-two
grams, arguing that the gym bag contained only forty-four
grams. The district court rejected Williams' argument:
I am going to deny you any relief under the Sentencing
Guidelines as to the issues about the difference in testi-
mony of the police officers.... And whether or not they
were in the possession of Mr. Williams, that was an issue
for the jury as to their differences in testimony and
whether they were convinced beyond a reasonable doubt
that Mr. Williams was in actual possession or construc-
tive possession of those drugs and the jury made that
determination.
Based upon all of the testimony after hearing, argu-
ment of counsel on each side, and experienced counsel
tried the case for Mr. Williams in a good fashion trying
to point out these inconsistencies and the failure of the
evidence. But that was a jury issue I believe and it
doesn't affect the Court now under the Guidelines be-
cause I will accept the jury's finding he was in posses-
sion knowingly of all of those drugs, which adds up to
the 66 grams, instead of a lesser amount.
Formally entering judgment against Williams, the district
court adopted the factual findings in the presentence report.
According to that report, a laboratory analysis of "the drugs
recovered from defendant Williams determined same to be
66.49 grams of cocaine base.... [T]he total amount of drugs
accountable to defendant Williams is 66.49 grams of cocaine
base."
From this sequence of events, we think that the district
judge did determine that Williams possessed sixty-six grams.
He said as much at the sentencing hearing. He adopted the
factual findings of the presentence report, which stated that
Williams was accountable for sixty-six grams. And he sen-
tenced Williams based on sixty-six grams.
Williams interprets the district court's oral ruling, particu-
larly the last sentence, to mean that the court mistakenly
believed that the jury had found that sixty-six grams of
cocaine base were seized from the bag and that the court
based its finding on that mistaken assumption. We disagree.
To begin with, it defies logic that an experienced district
judge, having ruled that quantity is not a matter for the jury
but is instead a question for the court at sentencing, see
supra at 3, would then turn around and impose sentence on
the basis of an assumption that the jury had determined
quantity. Moreover, we read the district court's words quite
differently than does Williams. From the district court's
comments in ruling on the motion for judgment of acquittal
and at sentencing, it is clear that he thought the evidence that
Williams possessed any drugs at all was thin. But once the
jury found that Williams in fact possessed the drugs, the
district court concluded that there was sufficient evidence to
attribute to Williams the entire amount, "which adds up to
the 66 grams, instead of a lesser amount." Read in this
context, the phrase "that was a jury issue I believe and it
doesn't affect the Court now under the Guidelines" refers to
possession, not quantity.
IV
This brings us to Williams' final argument. He challenges
the district court's denial of his motion to suppress the drugs
seized when he was arrested.
Seven officers of the Metropolitan Police Department, exe-
cuting a search warrant obtained on the basis of an infor-
mant's tip that guns and crack were present in an apartment
at 1209 Valley Avenue in Southeast Washington, entered the
apartment and found ammunition, handgun magazines, mari-
juana, and items often used in connection with drug distribu-
tion, including plastic bags, razor blades, and scales. Finding
neither guns nor crack, they left. Speculating that they may
have executed the warrant too early, five officers returned.
When the door of the apartment was opened, they saw
Williams moving away from them toward a back bedroom
with his right arm "tucked ... close to his side.... like he
was carrying something." Although the officers testified that
they could not see what Williams was carrying, they said they
suspected he might have had a gun. The two officers chased
Williams into a back bedroom. Seeing Williams with his hand
in a gym bag, the officers secured him and dumped the
contents of the bag. Out fell two large chunks of crack.
Williams was arrested.
Denying Williams' motion to suppress, the district court
held that he lacked standing to challenge the seizure because
he had no legitimate expectation of privacy in either the
apartment or the bag and because he had voluntarily aban-
doned the drugs. Although Williams correctly points out that
whether a defendant has a legitimate expectation of privacy
"is more properly placed within the purview of substantive
Fourth Amendment law than within that of standing," Minne-
sota v. Carter, 119 S. Ct. 469, 472 (1998) (internal quotation
marks and citation omitted), he cannot escape the well-
accepted rule that in order to demonstrate that the search
violated his Fourth Amendment rights he must establish that
he had a legitimate expectation of privacy in the area
searched. See id. Moreover, an individual who abandons
property forfeits any reasonable expectation of privacy in the
property. See United States v. Thomas, 864 F.2d 843, 845-46
(D.C. Cir. 1989).
Williams neither challenges the district court's determina-
tion that he had no legitimate expectation of privacy in the
area searched nor argues that the district court erred in
finding that he abandoned the drugs. Instead, he claims that
the "police discovered the bag only as a result of the illegal
seizure of Mr. Williams' person." Because Williams failed to
argue either that the allegedly illegal seizure invalidated the
abandonment or that he had some sort of privacy interest in
the bag and therefore did not abandon the drugs by putting
them in the bag, however, his claim that the police illegally
"seized his person" is irrelevant. We therefore find no basis
for questioning the district court's denial of the motion to
suppress.
V
Williams' conviction and sentence are affirmed.
So ordered.