United States v. Woods ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4597
HONDRE MANDEL WOODS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-97-49)
Submitted: April 30, 1998
Decided: May 27, 1998
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Anthony J. Vegh, Cleveland, Ohio, 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Unpublished opinions are not binding precedent in this circuit.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:
Hondre Mandel Woods appeals his conviction and sentence for
possession with the intent to distribute crack cocaine, in violation of
21 U.S.C. § 841(a)(1) (1994). We affirm.
In September 1996, detectives of the Graham, North Carolina,
Police Department conducted surveillance of Woods. As part of this
surveillance, detectives collected and examined Woods' trash on three
separate occasions. On the first occasion, the detectives found various
papers with Woods' name on them and a plastic grocery bag contain-
ing one wrapper from a kilogram of cocaine, two empty one-pound
boxes of baking soda, a pair of rubber gloves, and an empty box of
sandwich bags. The kilogram wrapper tested positive for cocaine. On
the second occasion, the detectives did not find anything suspicious.
On the third occasion, the detectives found two wrappers from two
kilograms of cocaine and various papers bearing Woods' name. Both
wrappers tested positive for cocaine.
Following the search of Woods' trash, the detectives attempted to
install a video camera in the woods behind Woods' home. While
installing the camera, the detectives observed Woods leave his home,
retrieve a flashlight from his truck, and enter the woods where the
detectives were installing the camera. Woods rummaged in the under-
brush, left the woods, and then drove away. After searching the area
where Woods was observed, the detectives found two grocery bags
containing one-ounce packages of crack cocaine. The detectives
obtained an arrest warrant for Woods and a search warrant for
Woods' home. That same night, the detectives arrested Woods and,
upon searching Woods' home, found several guns, a knife with
cocaine residue on it, and a large sum of cash. Upon this evidence,
Woods was convicted; he was sentenced to 235 months imprisonment
and five years of supervised release.
On appeal, Woods asserts that the sentencing court failed to com-
ply with Fed. R. Crim. P. 32(c)(1), which requires the court to rule
on any unresolved objections to the presentence report (PSR). At the
sentencing hearing, the court asked Woods if he had any objections
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to the court's adopting the PSR as its own findings, and Woods'
counsel replied that there were no objections. The court then
addressed Woods to determine if he wanted to make a statement or
present any information in mitigation of the sentence. Woods asked
the court about the possibility of applying the safety valve provision
pursuant to 18 U.S.C. § 3553(f) (1994). The court urged Woods to
talk about anything that he felt would affect his sentence including the
safety valve provision. Woods replied that he had nothing to say.
Because no objections were raised at sentencing, the court was not
required to make additional findings and thus did not violate Fed. R.
Crim. P. 32(c)(1).
Woods next asserts that the sentencing court erred by imposing a
two-point enhancement under U.S. Sentencing Guidelines Manual,
§ 2D1.1 (1997) ("USSG"). The enhancement was recommended in
the PSR, to which Woods did not object. Absent plain error, appellate
review of a sentence is waived when the defendant fails to object to
the sentence calculation in the district court. See United States v.
Grubb, 11 F.3d 426, 440-41 (4th Cir. 1993). Because we find no plain
error, we conclude this claim is waived.
Woods next asserts that the district court erred in denying his
motion to suppress. Woods claims that the detectives knowingly pro-
vided false information in the warrant affidavit when they stated that
they saw Woods retrieve an unknown object from the woods. During
the suppression hearing, the detectives admitted that they did not see
Woods actually remove anything from the area. The district court
found no evidence of bad faith.
While warrant affidavits are presumed valid, the affiant may be
impeached by a showing of deliberate falsity or reckless disregard for
the truth. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978);
United States v. Jones, 913 F.2d 174, 176 (4th Cir. 1990). However,
the showing of even a deliberate falsehood in a search warrant does
not necessarily render the warrant void. See United States v. Privette,
947 F.2d 1259, 1262 (5th Cir. 1991). A warrant will be upheld as
valid if the untainted portions of the affidavit supporting the warrant
were sufficient to demonstrate probable cause, exclusive of the
invalid parts. See Franks, 438 U.S. at 156; United States v. Taylor,
857 F.2d 210, 215 (4th Cir. 1988). Probable cause has been defined
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as reasonably trustworthy facts which, given the totality of the cir-
cumstances, are sufficient to lead a prudent person to believe that the
items sought constitute evidence of a crime and will be present at the
time and place of the search. See Illinois v. Gates, 462 U.S. 213, 238
(1983); United States v. Suarez, 906 F.2d 977, 984 (4th Cir. 1990).
This court must uphold the trial court's findings of fact unless those
findings are clearly erroneous. See Jones, 913 F.2d at 176.
Woods fails to establish that the statement complained of was made
knowingly and intentionally and that the statement was essential to a
determination of probable cause. See United States v. Colkley, 899
F.2d 297, 300 (4th Cir. 1990). The warrant affidavit included infor-
mation concerning the seizure of three kilogram wrappers and other
suspicious items from Woods' trash, as well as a recitation of Woods'
visit to the woods and the subsequent discovery of crack cocaine in
that same area. Thus, Woods fails to establish that the arrest and
search warrants were not supported by probable cause, and we find
that the district court did not err in denying Woods' motion for sup-
pression.
Finally, Woods asserts that he was denied a fair trial because of
prosecutorial misconduct. Woods claims that the prosecutor's state-
ment during closing argument about the elements of§ 841(a)(1) that
the Government needed to prove, prejudiced him because it removed
the Government's burden of proof as to one of the elements. Woods
also asserts that the prosecutor's remarks concerning the evidence at
trial were prejudicial. Because Woods did not object to the state-
ments, this court reviews for plain error. See United States v. Olano,
507 U.S. 725, 732 (1993).
Reversal based on improper remarks by the prosecutor is merited
when the remarks were actually improper and when they prejudicially
affected the defendant's substantial rights so as to deprive him of a
fair trial. See United States v. Brockington, 849 F.2d 872, 875 (4th
Cir. 1988). Reading the prosecutor's remarks in context, Woods fails
to establish that the prosecutor's remarks were improper or that they
denied him a fair trial. The Government did not state to the jury that
it did not have to prove all of the elements of the crime beyond a rea-
sonable doubt. Also, the remarks concerning the evidence at trial were
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fair inferences from the evidence. See United States v. Francisco, 35
F.3d 116, 120 (4th Cir. 1994). Thus, this claim is without merit.
Accordingly, we affirm Woods' conviction and sentence. We dis-
pense 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
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