United States v. Avery ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4547
PERREN O. AVERY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-97-21)
Submitted: March 17, 1998
Decided: March 30, 1998
Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William D. Turner, III, CRANDALL, PYLES & HAVILAND,
L.L.P., Lewisburg, West Virginia, for Appellant. Rebecca A. Betts,
United States Attorney, John L. File, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Perren Avery appeals his conviction and sentence for distributing
cocaine base in violation of 21 U.S.C. § 841(a)(1) (1994). We affirm.
On December 31, 1996, an agent with the Regional Unified Drug
Enforcement Task Force received an anonymous tip that a white preg-
nant female and two black males were selling drugs from a blue
Camaro in the vicinity of Barber Avenue, Beckley, West Virginia. On
January 6, 1997, a reliable confidential informant ("CI") met with
Task Force agents and informed them that she had recently accompa-
nied two black males known to her as Pete and Frank in a blue
Camaro, and that these men possessed four ounces of cocaine. The CI
described the man she knew as Pete as a tall black male with a very
large build and long bushy hair. The agents then gave the confidential
informant two-hundred dollars and a body-recording device for the
purpose of making a controlled buy from these two males. Shortly
thereafter the CI located the blue Camaro and approached Pete and
Frank who were standing with other persons outside the vehicle. Via
the body wire, the agents heard the CI inquire about purchasing vari-
ous quantities of cocaine, heard two men get in the CI's car and travel
to a nearby intersection, and then heard the CI purchase two-hundred
dollars worth of cocaine. The agents also heard the two men tell the
CI that they could sell her additional cocaine if she met them at
Vanessa Brooks' residence later that day. Because they were parked
out of view of the Camaro, the agents never saw Pete, Frank, or any
of the persons standing outside the blue Camaro. They did, however,
see the blue Camaro pull away shortly after the CI had finished mak-
ing her purchase.
The agents and the CI then returned to the Beckley police range
where the CI informed the agents that she had purchased the cocaine
from Pete. She also provided a description of Pete, and stated that
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Pete and Frank had approximately half a kilogram of cocaine between
them. Approximately thirty-five minutes later the agents located the
blue Camaro parked with no persons in or around the vehicle. After
momentarily losing sight of the Camaro, the agents saw the car drive
off. They then followed it for a few blocks and pulled it over.
Approaching the Camaro with their guns drawn, the agents ordered
the driver and two passengers out of the vehicle. As Avery exited the
Camaro, the agents recognized him as matching the description that
the CI had provided of the man named Pete. A search incident to
Avery's arrest uncovered $1860 in currency from his inside jacket
pocket. Subsequent analysis revealed that the $1860 seized from
Avery included the two-hundred dollars from the controlled transac-
tion.
Following Avery's arrest Task Force agents searched Vanessa
Brooks' apartment but found no cocaine. Shortly thereafter, the CI
called the agents from Brooks' apartment and informed the officers
that Brooks had the cocaine that they were looking for. Upon return-
ing to the apartment, Brooks gave the agents 23.5 grams of cocaine
which she had hidden in her vagina, and told the officers that Avery
had put the cocaine in her freezer earlier that day.
Avery contends that he was arrested without probable cause and
therefore the district court erred in denying his motion to suppress the
$1860 found in his possession at the time of his arrest. This court
reviews de novo a district court's determination of probable cause
under the Fourth Amendment. See United States v. Wilhelm, 80 F.3d
116, 118 (4th Cir. 1996). An officer has probable cause to make a
warrantless arrest when the "facts and circumstances within the offi-
cer's knowledge . . . are sufficient to warrant a prudent person, or one
of reasonable caution, in believing, in the circumstances shown, that
the suspect has committed, is committing, or is about to commit an
offense." Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). Because
probable cause is a practical, nontechnical concept based on probabil-
ities and common sense, see Illinois v. Gates , 462 U.S. 213, 231
(1983), this court applies a totality of the circumstances test in deter-
mining whether an officer had probable cause to make a warrantless
arrest. See United States v. McCraw, 920 F.2d 224, 227 (4th Cir.
1990). In making this determination, however, this court may only
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consider the facts and circumstances known at the time of the arrest.
Id.
We find that the district court properly denied Avery's suppression
motion because the agents searched Avery pursuant to a lawful arrest.
Prior to Avery's arrest, a Task Force agent had received an anony-
mous tip that three individuals were selling drugs from a blue
Camaro. The following week a confidential informant who had pro-
vided reliable information in the past corroborated the anonymous tip
and provided a description of Avery as one of the persons. Agents
then heard the CI approach the blue Camaro, travel with two men to
a different location to buy cocaine, and then return the men to the area
of the blue Camaro. They then witnessed the Camaro drive away.
Immediately after the controlled buy, the CI again provided a descrip-
tion of Avery as the person who sold her cocaine and told the agents
that Avery and the other man in the Camaro possessed additional
cocaine. Approximately thirty-five minutes later the agents spotted
the blue Camaro in the vicinity of where the earlier controlled buy
transpired. We find that under these circumstances, the agents had
reasonable suspicion to stop the Camaro and probable cause to arrest
Avery. See United States v. Williams, 10 F.3d 1070, 1076 (4th Cir.
1993) (noting that a police officer is not required to know a suspect's
name or to have a particularized description of his person in order to
have probable cause to arrest the suspect). Because the agents had
probable cause to arrest Avery, the agents lawfully searched Avery
incident to that arrest. The fact that the search occurred immediately
prior to the agent telling Avery that he was under arrest does not
affect the legality of the search. See United States v. Miller, 925 F.2d
695, 698-99 (4th Cir. 1991). Accordingly, the district court properly
denied Avery's motion to suppress evidence found on his person at
the time of his arrest.
Avery next claims that the district court erred in determining the
amount of cocaine attributed to him for sentencing purposes. The
government has the burden of proving by a preponderance of the evi-
dence sentencing factors, including the quantity of drugs for which a
defendant should be held accountable. See United States v. Estrada,
42 F.3d 228, 231 (4th Cir. 1994). In proving these factors, the govern-
ment may rely upon information found in a defendant's presentence
report unless the defendant affirmatively shows that such information
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is inaccurate or unreliable. See United States v. Gilliam, 987 F.2d
1009, 1014 (4th Cir. 1993). The district court may rely on hearsay
evidence and can use large sums of money seized from a defendant
to determine drug quantities at sentencing. See United States v.
Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992). We review the district
court's findings on sentencing factors for clear error. United States v.
McDonald, 61 F.3d 248, 255 (4th Cir. 1995).
Avery's presentence report and testimony from his suppression
hearing show that Avery gave Brooks the 23.5 grams of cocaine that
she turned over to the police. In addition, the presentence report deter-
mined that because Avery was not working and had no other means
of support at the time of his arrest, the money seized from Avery was
proceeds from illegal drug transactions. Pursuant to United States
Sentencing Guidelines Manual ("U.S.S.G.")§ 1B1.3 (1996) (relevant
conduct), the district court thus calculated the money to be proceeds
from the sale of 23.5 grams of cocaine and attributed that amount of
cocaine to Avery. At sentencing, the district court expressly discred-
ited Avery's testimony that the 23.5 grams of cocaine obtained from
Brooks was not his, and that the money seized at the time of his arrest
was not obtained from drug sales. The district court also found incred-
ible the testimony of Donnetta Kyle that the cocaine hidden in
Brooks' freezer did not belong to Avery. On this record, we can not
say that the district court clearly erred in holding Avery accountable
for 51.85 grams of cocaine. We further find that the district court
made adequate factual findings at sentencing in response to Avery's
objections.
Avery's final argument is that the district court erred in denying
him a three-level reduction in his base offense level for acceptance of
responsibility. See U.S.S.G. § 3E1.1. At sentencing Avery denied
responsibility for his drug dealing activities. Finding Avery's testi-
mony dishonest, the district court then denied Avery an acceptance of
responsibility adjustment. Considering that Avery denied responsibil-
ity for the instant offense and that the district court found that his tes-
timony lacked candor, we find that the district court properly denied
a downward adjustment for acceptance of responsibility. See
Uwaeme, 975 F.2d at 1018 (noting that this court must give substan-
tial deference to a district court's credibility determinations).
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We therefore affirm Avery's conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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