United States v. Glenn ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4402
JOSEPH ANTHONY GLENN, a/k/a
Jamaica Joe,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Chief District Judge.
(CR-94-127)
Submitted: February 27, 1997
Decided: March 13, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Jerry N. Theos, URICCHIO, HOWE, KRELL, JACOBSON,
TOPOREK, & THEOS, P.A., Charleston, South Carolina, for Appel-
lant. J. Rene Josey, United States Attorney, Mary Gordon Baker,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Joseph Anthony Glenn pled guilty to conspiracy to distribute crack
cocaine, 21 U.S.C. § 846 (1994), and received the statutory minimum
sentence of ten years. He appeals his sentence, alleging that the dis-
trict court erred in finding that the search of a co-defendant's resi-
dence was lawful and considering crack and powder cocaine found
during the search. Glenn also contends that the court clearly erred in
attributing those drugs to him as relevant conduct, USSG § 1B1.3,*
and further erred in upholding the sentencing ratio for crack and pow-
der cocaine offenses and refusing to depart because of the disparity
in sentences. We affirm in part and dismiss in part.
Glenn headed a group of Jamaicans who sold crack in North
Charleston, South Carolina, in 1993. The group included Glenn's two
brothers, Everett and Clinton Donaldson, as well as Francis March
and Lionel Gordon. March and his girlfriend lived in a duplex town-
house which was leased in her name. However, Glenn gave March
money to pay the rent and other bills and the residence was used to
store crack. Between December of 1993 and the end of March 1994,
the defendants sold crack on numerous occasions to a confidential
informant and an undercover officer. Video surveillance of March's
residence disclosed that the crack sold usually was retrieved from
there.
On April 16, 1994, Glenn was arrested; his residence was searched
under a federal warrant. Officers found $22,000 in cash and three fire-
arms. On the same day, March's townhouse was searched; no drugs
were recovered. The residence was secured. On April 20, 1994, drug
task force officers returned with a state search warrant authorizing
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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them to seize household items assumed to have been purchased with
drug proceeds. One of the officers moved a pile of linens which had
been pulled out of the linen closet at the top of the stairs during the
first search. Underneath the linens was a paper bag; when the officer
picked it up, crack and powder cocaine fell out of the bag.
Glenn entered a guilty plea to conspiracy. The probation officer
recommended that he be held responsible for all the crack distributed
and for the additional crack and cocaine found in March's residence.
Glenn argued that the latter amounts should not be considered
because their seizure was illegal in that the second search warrant did
not authorize a search for drugs. He also contended that he had no
connection with the drugs found in March's residence on April 20.
The district court properly held against Glenn on each point raised.
First, while the court found the search and seizure lawful, we note that
the exclusionary rule is not applicable in sentencing proceedings, and
thus the drugs in March's residence could have been considered even
if they were unlawfully obtained. See United States v. Lee, 540 F.2d
1205, 1211 (4th Cir. 1976). Second, the district court did not clearly
err in finding that the drugs found on April 20 had simply been
missed in the first search and that Glenn was accountable for them.
The evidence supported the court's finding that there was "a nexus"
between Glenn and the drugs stored in March's residence, that is, that
he was either directly involved with them or that their presence was
reasonably foreseeable to him. See USSG§ 1B1.3(a)(1)(B).
Glenn's contention that the sentencing ratio between crack and
powder cocaine offenses violates equal protection, due process, or the
Eighth Amendment is without merit. See United States v. Fisher, 58
F.3d 96, 99-100 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3270 (U.S. Oct. 10, 1995) (No. 95-5923); United States v. D'Anjou,
16 F.3d 604, 612-13 (4th Cir. 1994); United States v. Pinto, 905 F.2d
47 (4th Cir. 1990); United States v. Thomas, 900 F.2d 37 (4th Cir.
1990). The court's decision not to depart on this basis is not review-
able. See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
The sentence is therefore affirmed. We dismiss that portion of the
appeal which contests the district court's decision not to depart. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED IN PART AND DISMISSED IN PART
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