United States v. Judge ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5780
THOMASINA JUDGE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-95-107-6-1)
Submitted: September 10, 1996
Decided: September 23, 1996
Before HALL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Timika Shafeek, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Thomasina Judge pleaded guilty to possession with intent to dis-
tribute crack cocaine, 21 U.S.C.A. § 841(a)(1) (1988). Judge now
challenges her conviction, arguing that the district court should have
granted her motion to suppress both the crack and the incriminating
statements she made to police following her arrest. Judge also con-
tests her 120-month sentence, claiming that she should have received
a reduction in her offense level because she played a mitigating role
in the offense, USSG § 3B1.2.* Finally, Judge contends that under
USSG § 5C1.2 she should have received a sentence within her guide-
line range, rather than the statutory minimum. Finding no merit to any
of these contentions, we affirm.
I
Officers in Winston-Salem, North Carolina, were conducting bus
interdiction at the Greyhound bus station on April 22, 1995. At the
hearing on Judge's suppression motion, Detective Kent Sherrill testi-
fied that he noticed two men who had been waiting outside the station
enter the station and greet Judge when she got off a bus from New
York. Sherrill followed the three as they left the station, then called
out to them. He identified himself as a police officer and asked if he
could speak with them. Judge stopped; her companions continued
walking.
Sherrill showed Judge his badge and explained that the police were
conducting bus interdiction, checking for illegal drugs and weapons
coming into Winston-Salem. He asked if he could talk to Judge, and
she agreed. Sherrill then asked her a standard set of questions. In
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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response, Judge told him that she was travelling alone from New
York and that she had only a purse and a small carry-on bag.
Sergeant Marble joined Sherrill and Judge. Sherrill asked if he
could search for contraband. Judge replied, "Go ahead," and handed
him the carry-on bag. The officers found no contraband in the bag.
Sherrill then asked whether Judge had any contraband on her person.
Judge replied that she did not. Detective Sherrill testified that he, like
all the officers involved in the incident, was wearing casual clothing,
was not carrying or did not display a weapon, and spoke to Judge in
a conversational tone.
Detective Sharon Mitchell approached the group and asked Judge
if she could speak to her. The two women stepped aside. Sherrill
never told Judge that she could not leave, and he never insisted that
she speak to him. Mitchell testified that she asked Judge for consent
to search her person. Judge consented. Mitchell, Judge, and another
female officer went to the ladies' room. Mitchell testified that she
noticed a bulge around Judge's stomach area. Mitchell asked Judge
to unzip her pants. Judge replied, "I'll get it," and retrieved a brown
paper bag. Inside the bag were plastic bags containing what appeared
to be crack. The other officer found a small amount of marijuana
inside Judge's clothing. Judge was arrested.
Officers transported her to the police station, where she signed a
waiver-of-rights form and a consent-to-search form. Mitchell then
interviewed Judge. Judge said that someone in New York had given
her the crack and told her to deliver it to John Williams in Winston-
Salem. Judge stated that she had hidden the drugs in her underwear.
Mitchell testified that Judge never requested an attorney, and that
Judge acknowledged verbally and in writing that she understood what
rights--including the right to an attorney--she had waived.
Judge, who was twenty-nine, also testified at the suppression hear-
ing. She denied giving consent, claimed that she requested an attor-
ney, and told officers that she was confused. The district court denied
the motion to suppress. The court found that Judge had voluntarily
consented to having Mitchell search her person. Further, the court
found that Judge's statements to Mitchell were voluntary. The court
noted that Judge appeared to be intelligent, alert, and mature, and that
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there was no credible evidence to indicate that her will had been over-
borne or that she was intimidated or confused.
Courts look to the totality of the circumstances to determine
whether consent to a warrantless search was voluntary. United States
v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). Courts "consider the
characteristics of the accused (such as age, maturity, education, intel-
ligence, and experience) as well as the conditions under which the
consent to search was given (such as the officer's conduct; the num-
ber of officers present; and the duration, location, and time of the
encounter)." Id. A finding that an accused's consent was voluntary is
reviewed for clear error. Id.The district court's finding was not clearly erroneous. Judge was
twenty-nine years old and appeared to the court to be intelligent. The
officers who initially approached her were dressed in plain clothes
and displayed no weapons. She was not told that she was not free to
leave. Officers questioned her politely and asked for her consent to
search her bag. Detective Mitchell, who also was dressed casually and
displayed no weapon, inquired in a normal tone of voice whether she
could search Judge's person. Testimony at the hearing, in short, fully
supports the district court's finding that Judge gave her consent vol-
untarily, free of threats, force, or intimidation.
Similarly, the record fully supports the finding that Judge's state-
ments to police were voluntarily made after a knowing waiver of her
rights. Mitchell testified that she advised Judge of her Miranda rights,
see Miranda v. Arizona, 384 U.S. 436 (1966), and Judge signed a
form waiving those rights and stating that she understood the meaning
of the waiver. Although the district court made no explicit finding on
this point, we note that Mitchell testified that Judge did not request
an attorney. Additionally, Judge responded on the signed waiver form
that she did not want to have a lawyer and, specifically, did not wish
to have a lawyer present during questioning. The district court's con-
clusion that there was a voluntary waiver of rights contains an
implicit finding that Judge did not request an attorney. On these facts,
we conclude that there was no violation of Miranda or Edwards v.
Arizona, 451 U.S. 477 (1981).
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II
Judge contends that she was entitled to a reduction in her offense
level because she played a mitigating role in the offense. USSG
§ 3B1.2. Judge gave authorities conflicting stories about her involve-
ment in the offense. She told the probation officer that she was
approached while at the bus station by a man whom she did not know,
who then gave her the bag and asked her to deliver it to someone in
Winston-Salem. Judge claimed not to know what the bag contained
until she boarded the bus. In contrast, Judge told the police that some-
one named "Kuba" beeped her and arranged to meet her in New York.
Kuba gave her the drugs and instructed her to deliver them to John
Williams in Winston-Salem. Judge then bought her bus ticket to
Winston-Salem.
A drug courier is not entitled to an automatic reduction under
§ 3B1.2 without a showing that she has less culpability than other
members of the organization. United States v. Gordon, 895 F.2d 932,
935 (4th Cir.), cert. denied, 498 U.S. 846 (1990). The burden rests
with the defendant to show by a preponderance of the evidence that
she is entitled to the adjustment. Id.Judge gave different stories about her involvement in the crime.
Under these circumstances, it was impossible for the district court to
tell exactly what her role was. Judge therefore did not meet her bur-
den of establishing entitlement to the adjustment.
III
Finally, Judge asserts that she was entitled to be sentenced within
her guideline range, rather than to the statutory minimum of ten years.
See 21 U.S.C.A. § 841(b) (West Supp. 1996); USSG § 5G1.1. Under
the "safety valve" provision of 18 U.S.C.A.§ 3553(f) (West Supp.
1996) and USSG § 5C1.2, for certain offenses, a district court shall
impose a sentence in accordance with the guidelines, without regard
to the statutory minimum, if the court determines that the defendant
meets five criteria.
One criterion is that the defendant, by the time of sentencing, truth-
fully provides the Government with all information about the instant
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offense. 18 U.S.C.A. § 3553(f)(5); USSG § 5C1.2(5). The district
court did not clearly err in finding that Judge had not met her burden
of proving by a preponderance of the evidence that she truthfully pro-
vided the Government with all information and evidence she had
regarding her crime. See United States v. Ivester, 75 F.3d 182, 185
(4th Cir. 1996). She told the police one story, and told the probation
officer another. She also informed the probation officer, and the court
at sentencing, that the story she gave to the police was false. Given
the conflicting stories which Judge told, and her stating that she lied
to the police, there was no clear error in denying her the protection
of the safety valve.
IV
We accordingly affirm Judge's conviction and sentence. We dis-
pense with oral argument because the materials before us reveal that
argument would not significantly aid the decisional process.
AFFIRMED
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