United States v. Price , 150 F. App'x 243 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4008
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RENNIE OTIS PRICE, a/k/a Ronnie Otis Price,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(CR-03-56)
Submitted: September 21, 2005 Decided: October 12, 2005
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Gerald C. Ruter, THE LAW OFFICES OF GERALD C. RUTER, P.C.,
Baltimore, Maryland, for Appellant. Allen F. Loucks, United States
Attorney, Christopher J. Romano, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rennie Otis Price appeals his conviction for conspiracy
to distribute and to possess with intent to distribute 50 grams or
more of cocaine base and less than 500 grams of powder cocaine and
his corresponding 151-month sentence. After thorough
consideration, we affirm Price’s conviction. However, we vacate
his sentence and remand for further consideration.
I.
Price first asserts that police officers violated his
Fourth Amendment rights by executing a search warrant without first
knocking and announcing their presence. In Richards v. Wisconsin,
520 U.S. 385, 394 (1997), the Supreme Court held that “no-knock”
entries are justified when police officers have a “reasonable
suspicion” that knocking and announcing their presence before
entering would “be dangerous or futile, or . . . inhibit the
effective investigation of the crime.” The officers in this case
justified their failure to knock and announce based on the violent
criminal backgrounds of the two suspects (Dexter Tyson and Kevin
Pariag) and the fact that the drug evidence could be quickly
destroyed.
Price contends that the “no-knock” entry was
unreasonable, because the officers should have known that neither
suspect was in Apt. F at the time. Price further contends that, in
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the absence of any danger from the suspects, the fear of
destruction of drug evidence was insufficient to warrant entry
without knocking and announcing.
Prior to execution of the search warrant, Tyson was
observed leaving the apartment. While a detective testified that
he did not know whether Pariag was in the apartment at the time of
the search, Price contends that the officers knew that Pariag did
not live there and that they should have done further investigation
to determine Pariag’s whereabouts. However, the officers observed
Pariag, who was related to Tyson, at Tyson’s apartment building on
at least two occasions. They had information that he drove a car
parked at Tyson’s apartment building. In addition, Pariag had not
been spotted at his own home. Pariag’s criminal history included
convictions for escape, burglary with a handgun, and assault with
intent to murder. In addition, a canine officer alerted on the car
that Pariag was driving, and the officers’ surveillance strongly
supported the inference that there was drug evidence in the
apartment. Finally, the magistrate judge issued the warrant as a
“no-knock,” providing the officers another reason to believe that
their entry was reasonable. See United States v. Tisdale, 195 F.3d
70, 73 (2d Cir. 1999) (regardless of exigent circumstance, officers
entitled to rely on the no-knock provision of the warrant in good
faith).
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Thus, a reliable confidential informant and the officers’
own observations supported the conclusion that Pariag might be in
the apartment. Pariag was a suspected drug dealer with a violent
past and a history of handgun use. In addition, the officers
reasonably believed that they were dealing with experienced drug
distributors who would have reason to attempt to destroy evidence
unless the officers acted quickly. Thus, we find that the
officers’ “no-knock” entry was justified. See United States v.
Ramirez, 523 U.S. 65, 71 (1998) (finding police had a reasonable
suspicion that knocking and announcing would be dangerous based
upon reliable information that suspect with violent background and
access to weapons “might” be in respondent’s home); United
States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994) (holding that
it is reasonable for police officers to assume that experienced
drug dealers selling small quantities from a residence will attempt
to destroy the evidence if police announce their presence).1
1
Price argues that the police could have done further
investigation as to Pariag’s whereabouts. However, he offers no
support for the proposition that officers, armed with a warrant and
a reasonable suspicion that a potentially dangerous drug dealer is
in the subject apartment, are required to delay and do additional
investigation that may shed further light on the suspect’s
location. The Richardson rule requires only that officers possess
a “reasonable suspicion” that knocking before entry would be
dangerous. Officers need not possess the knowledge to an absolute
certainty or even by a preponderance of the evidence. Terry v.
Ohio, 392 U.S. 1, 27 (1968) (holding that reasonable suspicion
requires more than a hunch but less than probable cause).
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II.
Price contends that the district court erred in denying
his motion for a hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1978). In Franks, the Supreme Court ruled that a defendant is
entitled to a hearing on the validity of the search warrant
affidavit if he makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless
disregard for the truth, was included in the warrant affidavit, and
the allegedly false statement was necessary to the finding of
probable cause. Id. at 155-56. Price challenged the affiant
detective’s assertions that he observed Tyson conducting what
appeared to be a drug deal outside of the subject apartment on
December 2, 2002, because Tyson was apparently in jail at the time.
However, Price failed to make any showing that the error
in the date (or the identification) provided in the affidavit was
anything more than negligence, which does not justify a Franks
hearing. Id. at 170. Moreover, Price still needs to show that the
alleged misrepresentations were essential to the probable cause
determination. On this point, Price contends that the abridged
affidavit would not provide probable cause to believe that Tyson
was involved in criminal activity or that Apt. F was involved.
If all references to December 2 are excised, the
affidavit would still allege that (1) a confidential informant
advised that Tyson and Pariag were distributing cocaine from Apt.
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F; (2) detectives saw Pariag exit the building and retrieve a bag
from a minivan that a canine officer alerted on; (3) detectives saw
Tyson pick up a white plastic bag from the apartment building and
drive away with it, while making “counter-surveillance moves” in
his vehicle; (4) a trash bag deposited in the dumpster by a
companion of Pariag’s contained cocaine residue; (5) Tyson lived in
Apt. F, while Pariag did not live in the apartment building; and
(6) Tyson and Pariag were related. We find that there was
sufficient information from which probable cause could be found.
See United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992)
(explaining that probable cause exists if “‘a man of reasonable
caution’ [would] believe that evidence of a crime will be found”).
Thus, the district court properly denied the motion for a Franks
hearing.
III.
Price next contends that the district court erred in
denying his motion to suppress his statement. Specifically, Price
alleges that his confession was coerced by the officers’ attempts
to gain his confidence while he was in an agitated state. A
confession is invalidated by threats or implied promises only when
the defendant’s will is overborne and his capacity for
self-determination is critically impaired. United States v.
Braxton, 112 F.3d 777, 783 (4th Cir. 1997).
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The record contains no evidence that Price’s will was
overborne. Price testified at the motions hearing and at trial
that he was not advised of his rights and he did not make the
statements attributed to him by the officers. He did not assert
that he was threatened, coerced, or intimidated. Moreover, even
accepting Price’s current story that his confession was induced by
the surprise arrest of him and his girlfriend and the officers’
assertions that he was not the person the police were after, the
statement was still a voluntary choice. See id. (holding that
“voluntariness of confession ‘is not . . . to be equated with the
absolute absence of intimidation’”); see also Schneckloth v.
Bustamonte, 412 U.S. 218, 224 (1973) (recognizing that very few
people give incriminating statements in the absence of some sort of
official action). Thus, the district court properly denied Price’s
motion to suppress.
IV.
Price next challenges the sufficiency of the evidence to
support his conviction for conspiracy. In reviewing the
sufficiency of the evidence, we construe the evidence in the light
most favorable to the United States and draw all reasonable
inferences in its favor, sustaining the verdict if any rational
trier of fact could have found the necessary elements of the crime
proven beyond a reasonable doubt. United States v. Romer, 148 F.3d
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359, 364 (4th Cir. 1998). If the evidence supports different,
reasonable interpretations, the fact finder, not the reviewing
court, decides which interpretation to believe. United States v.
Murphy, 35 F.3d 143, 148 (4th Cir. 1994). A defendant challenging
the sufficiency of the evidence to support his conviction faces a
heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997).
Price claims the jury’s refusal to convict him of
possession of crack cocaine proves that there is insufficient
evidence to support his conviction for a crack cocaine conspiracy,
because the only mention of crack cocaine at trial was the crack
found during the search of Apt. F, which the jury clearly did not
attribute to him. However, a jury verdict is not reviewable for
internal inconsistencies. United States v. Powell, 469 U.S. 57,
68-69 (1984). Therefore, even if the jury found facts to support
one crime, but not the other, its verdict is granted broad
deference. United States v. Love, 134 F.3d 595, 606 (4th Cir.
1998).
Further, the jury’s verdict is not inconsistent.
Conspiracy and possession with intent to distribute each have very
different elements, so Price’s inference is not the only
interpretation of the verdict. Moreover, Price ignores his
statement to the police that he was present when Tyson cooked
cocaine into crack. Thus, not only was the evidence sufficient to
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convict Price of a powder cocaine conspiracy (which is undisputed
by Price), but his own statement provides sufficient evidence that
the scope of his agreement with other conspirators involved crack
cocaine, as well.
V.
Price next claims that the district court erred by
refusing to grant a mistrial after a bullet not in evidence was
inadvertently sent into the jury room. The decision of whether to
grant a mistrial is left to the broad discretion of the trial
court. United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.
1997) (stating that “denial of a defendant’s motion for a mistrial
is within the sound discretion of the district court and will be
disturbed only under the most extraordinary of circumstances”). We
have held that, in order to show an abuse of discretion, a
defendant must show prejudice, and no prejudice exists if the jury
could make individual guilt determinations by following the court’s
cautionary instructions. United States v. West, 877 F.2d 281, 288
(4th Cir. 1989). Reversal is required only if there is a clear
abuse of discretion and a “reasonable probability that the jury’s
verdict was influenced by the material that improperly came before
it.” United States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992).
Price fails to meet his burden of demonstrating that the
district court abused its discretion. Following discovery of the
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bullet, the jury brought the matter to the court’s attention,
demonstrating that the jury itself was aware of the evidence
mistake. The court informed the jury that the bullet was in the
box by mistake, that it was not in evidence, and that it could not
be considered in any way. See Luchenburg v. Smith, 79 F.3d 388,
393 (4th Cir. 1996) (holding that jurors are presumed to follow the
court’s instructions). Finally, it is unclear how the bullet could
have prejudiced Price. The caliber of the bullet did not match any
of the firearms or ammunition discussed at trial. Moreover, Price
was not convicted of a firearm offense. Thus, because there is no
reasonable probability that the jury was influenced by the presence
of the bullet in the evidence box, the district court properly
denied the motion for a mistrial.
VI.
Price contends that he was improperly sentenced under the
mandatory guidelines scheme, and he seeks imposition of the court’s
alternative sentence. The Government does not object.
Although Price did not specifically object in the
district court to being sentenced under a mandatory guidelines
scheme, counsel did raise “overall Blakely issues,” and requested
an alternative sentence in light of Blakely v. Washington, 542 U.S.
296 (2004). In United States v. White, 405 F.3d 208, 216-17 (4th
Cir. 2005), we considered whether treating the guidelines as
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mandatory was plain error in light of United States v. Booker, 125
S. Ct. 738 (2005), and held that it was. However, we declined to
presume prejudice, finding that a defendant must “demonstrate,
based on the record, that the treatment of the guidelines as
mandatory caused the district court to impose a longer sentence
than it otherwise would have imposed.” White, 405 F.3d at 224.
Because “the record as a whole provide[d] no nonspeculative basis
for concluding that the treatment of the guidelines as mandatory
‘affect[ed] the district court’s selection of the sentence
imposed,’” id. at 223, we concluded that the error did not affect
the defendant’s substantial rights and affirmed the sentence. Id.
at 225.
Here, the district court imposed Price’s sentence under
a mandatory guidelines scheme, which is error. See id. at 216-17.
In addition, the district court announced an alternate, lower
sentence that it would impose were it not constrained by the
guidelines. We hold that the district court’s statement at
sentencing conclusively indicates that the court would have
sentenced Price to a lower sentence had the court proceeded under
an advisory guideline scheme. Thus, the error affected Price’s
substantial rights, and we vacate Price’s sentence and remand for
further proceedings.2
2
We offer no criticism of the district court, who followed the
law and procedure in effect when Price was sentenced. See
generally Johnson v. United States, 520 U.S. 461, 468 (1997).
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VII.
Based on the foregoing, we affirm Price’s conviction,
vacate his sentence, and remand for further proceedings.3 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 IN PART,
VACATED IN PART,
AND REMANDED
3
Although the sentencing guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the guidelines,
making all factual findings appropriate for that determination.
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). The
court should consider this sentencing range, along with other
factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2005), and then impose a sentence. Hughes, 401 F.3d at 546. If
that sentence falls outside the guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.
§ 3553(c)(2) (2000). Hughes, 401 F.3d at 546. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
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