United States v. Hawkins ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                                      No. 95-5773
    WILLIE RAY HAWKINS, JR.,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Middle District of North Carolina, at Salisbury.
    N. Carlton Tilley, Jr., District Judge.
    (CR-94-264)
    Submitted: September 30, 1996
    Decided: October 25, 1996
    Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    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, Harry L. Hobgood,
    Assistant United States Attorney, Greensboro, North Carolina, for
    Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Willie Ray Hawkins, Jr., appeals his convictions for possession of
    crack cocaine with intent to distribute, 21 U.S.C.A.§ 841 (West 1981
    & Supp. 1996), and possession of a firearm by a convicted felon, 
    18 U.S.C.A. § 924
    (c) (West Supp. 1996), arguing that a forced entry by
    police into his home to execute a search warrant violated the Fourth
    Amendment and that evidence seized during the search should have
    been suppressed. He further contends that the district court erred in
    finding that testimony concerning his distributions of crack during the
    month preceding his arrest was not excludable as evidence of other
    crimes under Fed. R. Evid. 404(b). Hawkins also appeals his 420-
    month sentence on the grounds that the district court clearly erred in
    finding that he was a leader in the offense, USSG§ 3B1.1,1 and erred
    in applying the penalties for crack offenses. Finding no error, we
    affirm the convictions and the sentences.
    On February 23, 1993, Willie Ray Hawkins' car was stopped for
    speeding on the New Jersey Turnpike. Riding in the car were Haw-
    kins and his girlfriend, Felicia Gunthrope, as well as Randy Hawkins
    and Claymore Jones. During a consensual search of the car, 1128
    grams of crack and 50.9 grams of marijuana were found inside the
    rim of a spare tire. All were arrested, and Randy Hawkins subse-
    quently informed the police that Willie Ray Hawkins regularly trav-
    eled to New York to obtain crack for distribution and that Claymore
    Jones was one of his distributors.
    This led to an investigation in Hawkins' home town of Salisbury,
    North Carolina. On September 29, 1993, Claymore Jones was arrested
    for shooting into Hawkins' house. Interviewed after his arrest, he con-
    _________________________________________________________________
    1 United States Sentencing Commission, Guidelines Manual (Nov.
    1994).
    2
    firmed that he and others had been selling crack for Hawkins for two
    years, but had become disenchanted with Hawkins. On October 5,
    1993, Jones was shot in the head and hospitalized for some time.2
    A search warrant was executed at Hawkins' house at 10:00 a.m. on
    October 14, 1993. The police officers knew that Hawkins was in the
    house. They also had information that Hawkins possessed a variety
    of firearms and had engaged in violence against a former girlfriend
    and associates in his drug business. They knocked on the door for
    between seven and thirty seconds and yelled, "Police. Search war-
    rant." Hearing no answer after about seven or eight seconds, they
    forced open the door. Hawkins and Gunthrope were in a bedroom,
    where a loaded 9 mm pistol was found on the floor. A small amount
    of crack and marijuana was recovered from the house, as were a shot-
    gun, a rifle, and an assault rifle, all loaded. The officers also discov-
    ered 171.4 grams of crack in a plastic bag hidden in the fork of a tree
    at the rear of the back yard.
    Before his first trial, which ended with a hung jury, Hawkins
    sought unsuccessfully to suppress the crack and firearms seized from
    his house. The district court found that the officers had complied with
    the "knock and announce" rule, 
    18 U.S.C. § 3109
     (1994), and that exi-
    gent circumstances were present (danger to the officers and possible
    destruction of evidence) which would have justified an immediate
    entry in any case. On appeal, Hawkins argues that the search violated
    the Fourth Amendment because the officers executing the search war-
    rant failed to comply with the knock and announce rule in that they
    entered the house forcibly before they were refused entry. He con-
    tends that no exigent circumstances were present which would justify
    dispensing with the requirement.
    One element of the reasonableness inquiry governing the lawful-
    ness of searches under the Fourth Amendment is that police officers
    must knock and announce their presence before entering the premises
    to be searched. Wilson v. Arkansas, ___ U.S. ___, 
    115 S. Ct. 1914
    (1995). However, the principle permits unannounced entry when there
    are important countervailing law enforcement interests such as the
    _________________________________________________________________
    2 Gunthrope testified at Hawkins' sentencing that Hawkins paid some-
    one to shoot Jones to prevent him from giving information to the police.
    3
    safety of the officers or prevention of the destruction of evidence. 
    Id.
    Although Wilson was decided after Hawkins' conviction, the Fourth
    Circuit previously employed essentially the same reasonableness test.
    See United States v. Kennedy, 
    32 F.3d 876
    , 881-83 (4th Cir. 1994),
    cert. denied, ___ U.S. ___, 
    115 S. Ct. 939
     (1995). Under both Wilson
    and Kennedy, the presence of exigent circumstances is a factual deter-
    mination dependent on the circumstances of the particular case.
    Wilson, 63 U.S.L.W. at 4459; Kennedy, 
    32 F.3d at 882
    . In Kennedy,
    this Court held that entry without waiting for a response to the knock
    and announcement was reasonable when the police officers had rea-
    son to believe drugs would be destroyed if they delayed entry.
    Hawkins concedes that the search was reasonable under Kennedy,
    but argues that Kennedy permits a blanket assumption that any search
    for narcotics involves exigent circumstances, while Wilson announced
    a more stringent standard of reasonableness. He maintains that the
    search of his house was illegal because the officers waited only a few
    seconds after they knocked and announced their presence and forced
    open the door before being refused admittance, and because there
    were no exigent circumstances to justify dispensing with the knock
    and announce rule. We disagree. Kennedy does not endorse a blanket
    rule that exigent circumstances may be found in all drug cases. More-
    over, in this case, the district court found that exigent circumstances
    were present. Its finding was supported by evidence in the officers'
    possession at the time of the search that Hawkins both possessed
    weapons and had previously used violence. Consequently, his argu-
    ment is without merit.
    Next, Hawkins contends that the district court erred in finding that
    Jones' testimony about drug transactions during the month before the
    search was not evidence of prior bad acts. He argues that because he
    was not charged with conspiracy, all his drug transactions with Jones
    were "other crimes" and should have been excluded under Rule
    404(b).
    Evidence of uncharged conduct is not considered"other crimes"
    evidence if it arises from the same transaction or series of transactions
    as the charged conduct, is "inextricably intertwined" with the charged
    conduct, or is necessary to explain the charged conduct. United States
    v. Towne, 
    870 F.2d 880
    , 886 (4th Cir.) (internal quotation marks omit-
    4
    ted), cert. denied, 
    490 U.S. 1101
     (1989). Hawkins argues that his dis-
    tributions to Jones in September and early October were not
    inextricably linked with his possession of the crack found during the
    search because the crack found during the search may not have been
    the same crack stash from which he made distributions to Jones.
    However, Jones' information about his ongoing dealings with Haw-
    kins in September and early October 1993 provided a significant part
    of the evidence supporting the search warrant. Those dealings were
    interrupted only by Jones' hospitalization. Consequently, we find that
    the district court did not err in finding that Jones' testimony did not
    involve other crimes or in refusing to give a limiting instruction.
    Hawkins maintains both that the district court failed to make ade-
    quate findings to support its determination that he was a leader, and
    that the court's finding is unsupported by the evidence. We disagree.
    The probation officer recommended the adjustment because there was
    information from co-conspirators that Hawkins directed his own drug
    operation by personally obtaining crack in New York, bringing it to
    North Carolina, and distributing it to others for sale, and that more
    than five people were involved. Participants named in the presentence
    report included Hawkins, Randy Hawkins, Claymore Jones, Henry
    Lewis Hall, James K. Miller, and Derrick Pruitt. Hawkins offered no
    evidence at the sentencing hearing to show that this information was
    inaccurate or unreliable, as was his burden. United States v. Terry,
    
    916 F.2d 157
    , 162 (4th Cir. 1990). The court's ruling was properly
    based on the information in the presentence report and was not clearly
    erroneous.
    Last, Hawkins argues that the statutory and guideline penalties for
    crack offenses are ambiguous because crack and powder cocaine are
    the same substance and require application of the rule of lenity. He
    recognizes that this court considered and rejected the same argument
    in United States v. Fisher, 
    58 F.3d 96
    , 99 (4th Cir.), cert. denied, ___
    U.S. ___, 
    116 S. Ct. 329
     (1995), but asks the court to reconsider
    Fisher. However, a panel cannot overrule the decision of a prior panel
    in this circuit. Brubaker v. City of Richmond , 
    943 F.2d 1363
    , 1381-82
    (4th Cir. 1991).
    Accordingly, we affirm the convictions and the sentences. We dis-
    pense with oral argument because the facts and legal contentions are
    5
    adequately presented in the materials before the court and argument
    would not aid the decisional process.
    AFFIRMED
    6