United States v. Blevins , 315 F. App'x 478 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY BLEVINS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00017-1)
Submitted: February 4, 2009 Decided: March 6, 2009
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Mason Preston, PRESTON & WEESE, L.C., Lewisburg, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Blevins pled guilty pursuant to a written plea
agreement to distribution of oxycodone, in violation of 21
U.S.C. § 841(a)(1) (2006). Blevins was sentenced to seventy
months’ imprisonment. Finding no error, we affirm.
On appeal, Blevins contends the district court erred
in calculating the quantity of drugs attributable to him. When
determining a sentence, district courts must initially calculate
the appropriate advisory Guidelines range. Gall v. United
States, 128 S. Ct. 586, 596 (2007). The court may consider any
relevant and reliable evidence before it, including hearsay, in
establishing relevant conduct. United States v. Bowman, 926
F.2d 380, 381 (4th Cir. 1991). Indeed, hearsay alone can
provide sufficiently reliable evidence of drug quantity. United
States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992). The
Government has the burden of establishing the quantity of drugs
used for sentencing calculations by a preponderance of the
evidence. United States v. Milam, 443 F.3d 382, 386 (4th Cir.
2006).
We review the district court’s drug quantity
determination for clear error. United States v. Kiulin, 360
F.3d 456, 461 (4th Cir. 2004). The district court is not
required to precisely calculate attributable drug weights, but
may instead approximate drug quantity. U.S. Sentencing
2
Guidelines Manual (“USSG”) § 2D1.1, comment. (n.12) (2006)
(permitting courts to approximate the quantity of drugs where
there has not been a seizure or the amount seized does not
properly reflect the scale of the offense). “A district court’s
approximation of the amount of drugs is not clearly erroneous if
supported by competent evidence in the record.” United States
v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). If the district
court relies on the drug quantity included in the presentence
report, the defendant bears the burden of establishing that the
information is incorrect. Id. at 210-11. “[M]ere objections
[to the presentence report] are insufficient.” Id. at 211.
The presentence report recommended a drug weight the
marijuana equivalent of 1523.15 kilograms, based on seven
controlled purchases, substances seized during a search of
Blevins’s residence, and Blevins’s statement. Also included in
the report were five additional controlled purchases,
information obtained from the confidential informant during a
debriefing interview, and the statement of Clifford Roy
Johnston--an individual named as an aider and abetter in the
offense.
At sentencing, counsel argued that the drug weights
contained in Blevins’s statement were unreliable as a
psychological analysis indicated that Blevins was “easily led”
and not competent to waive his rights pursuant to Miranda v.
3
Arizona, 384 U.S. 436 (1966). Counsel likewise argued that the
drug weights contained in Johnston’s statement were unreliable
as Johnston suffered memory loss due to a mining accident.
The district court reviewed the statements of Blevins
and Johnston, and determined that they were “generally
consistent.” While the court acknowledged that Blevins might
suffer from mental health issues, it nevertheless concluded that
such issues were insufficient to cause the reliability of his
statement to be questioned. Accordingly, the court found
credible evidence to support the relevant conduct, overruled
Blevins’s objections, and adopted the presentence report as
written.
Counsel continues to assert on appeal that the
statements made by Blevins and Johnston are unreliable. The
statements conservatively establish that Blevins dealt half an
ounce of cocaine base a week for four months, or a total of
eight ounces. Controlled purchases confirm that Blevins sold
cocaine base from July 2006 to October 2006. Moreover, a
confidential informant observed approximately 7.5 grams, or a
little more than one-quarter ounce, of cocaine base at
Johnston’s residence that was said to belong to Blevins.
Johnston confirmed that he on occasion held cocaine base for
Blevins. Based on these facts, the district court cannot be
said to have clearly erred in its calculation of drug quantity.
4
Blevins also contends that the district court erred in
denying his motion to suppress the search of his residence under
State v. Mullens, 650 S.E.2d 169, 190 (W. Va. 2007) (holding
West Virginia State Constitution prohibits police from sending
informant into another’s home to secretly use an electronic
surveillance device without a warrant). ∗ In his motion, raised
for the first time during the sentencing hearing conducted on
February 6, 2008, Blevins argued that the search warrant issued
in his case was improperly based on surveillance prohibited by
Mullens. The district court denied Blevins’s motion to suppress
as both untimely and without merit.
“When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with which
he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea.” Tollett v.
Henderson, 411 U.S. 258, 267 (1973). Thus, “direct review of an
adverse ruling on a [motion to suppress] is available only if
the defendant expressly preserves that right by entering a
conditional guilty plea.” United States v. Wiggins, 905 F.2d
51, 52 (4th Cir. 1990). As Blevins’s guilty plea was not
∗
Mullens issued on February 28, 2007, more than two months
prior to Blevins’s guilty plea on May 7, 2007.
5
conditionally entered, and he does not challenge the voluntary
and intelligent nature of his plea, he has waived review of the
denial of his motion to suppress.
In any event, the district court did not err in
denying Blevins’s motion. A motion to suppress must be made
prior to the commencement of trial. Fed. R. Crim. P.
12(b)(3)(C). Failure to timely raise a motion to suppress will
generally constitute forfeiture of the issue unless the district
court determines relief from the forfeiture is warranted. Fed.
R. Crim. P. 12(e); United States v. Ruhe, 191 F.3d 376, 386 (4th
Cir. 1999) (referencing Rule 12(f), amended to 12(e) in 2002).
A district court’s decision on whether or not to permit an
untimely suppression motion under Rule 12(e) is reviewed for
clear error. Ruhe, 191 F.3d at 385. Since Blevins failed to
offer any explanation for his untimeliness, the district court
cannot be said to have clearly erred in denying the motion to
suppress.
Even on the merits, the district court correctly
concluded that whether or not a seizure violates state law is
irrelevant to the determination of a motion to suppress in
federal court. See United States v. Van Metre, 150 F.3d 339,
347 (4th Cir. 1998) (stating relevant inquiry is not whether
state law enforcement officer violated state law in securing
evidence, but whether Fourth Amendment was violated). Moreover,
6
federal statutory and constitutional law permits officials to
place an electronic surveillance device on a consenting
informant for the purpose of recording communications with a
third-party suspect, even in the absence of a warrant. 18
U.S.C. § 2511(2)(c) (2006); see also United States v. White, 401
U.S. 745, 751-54 (1971) (plurality opinion) (determining
warrantless use of electronic equipment by undercover government
agent in recording conversation with defendant did not violate
Fourth Amendment).
Accordingly, we affirm the judgment of the district
court. 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
7