United States v. Patterson , 406 F. App'x 773 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5129
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHON TERRELL PATTERSON, a/k/a Joe-Joe,
Defendant - Appellant.
No. 09-4374
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THOMAS JOSEPH ISBELL,
Defendant – Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00022-RLV-CH-12; 5:06-cr-
00022-RLV-DSC-18)
Argued: October 29, 2010 Decided: January 4, 2011
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
ARGUED: Elizabeth A. Brandenburg, LAW OFFICE OF MARCIA G. SHEIN,
PC, Decatur, Georgia, for Appellants. Amy Elizabeth Ray, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee. ON BRIEF: Marcia G. Shein, LAW OFFICE OF MARCIA G.
SHEIN, PC, Decatur, Georgia, for Appellants. Anne M. Tompkins,
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Jonathon Patterson and Thomas Isbell appeal their
convictions for conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846. In
addition to challenging the sufficiency of the evidence to
establish a single conspiracy, Patterson and Isbell allege
multiple errors at trial, and Patterson challenges the
procedural reasonableness of his sentence. 1 For the reasons set
forth below, we affirm Patterson and Isbell’s convictions, but
vacate Patterson’s sentence and remand his case for
resentencing.
I.
Patterson and Isbell (collectively “Defendants”) were two
of twenty-three individuals named in a thirty-count indictment
alleging a multi-year conspiracy between dozens of indicted and
unindicted co-conspirators to possess with the intent to
distribute cocaine powder and cocaine base within the Western
District of North Carolina.
The Defendants each pled not guilty, and the Government
proceeded to try them jointly. The jury found both of them
guilty. The district court then sentenced Patterson to 324
1
Isbell does not raise any issues regarding his sentence.
3
months’ imprisonment and Isbell to 262 months’ imprisonment.
Additional facts relating to each of the issues raised on appeal
will be discussed in context. The Defendants noted timely
appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1291and 18 U.S.C. § 3742.
II.
A.
The Defendants first assert the evidence was insufficient
to convict them of a single, organized conspiracy. They argue
the evidence shows – at most – multiple conspiracies involving
individuals who “[got] their drugs wherever they were available”
rather than intentionally engaging in a common criminal scheme.
(Appellants’ Opening Br. 40.)
In assessing whether a guilty verdict is sufficiently
supported by the evidence, we are mindful that “[t]he jury, not
the reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented.” United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)
(quotation marks omitted). The jury’s verdict must be sustained
as long as “any rational trier of fact could have found the
essential elements of the [conspiracy charged in the indictment]
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis omitted). In conducting such a review, we
4
view the evidence and all reasonable inferences to be drawn
therefrom in the light most favorable to the Government. United
States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003).
To prove the existence of a conspiracy, the Government was
required to show: (1) two or more persons agreed to possess an
illegal substance with the intent to distribute it; (2) the
defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of this conspiracy.
Burgos, 94 F.3d at 857. Because conspiracies are by nature
“clandestine and covert,” there is “frequently . . . little
direct evidence of such an agreement.” Id. Circumstantial
evidence can be used to prove the existence of a conspiracy, and
it can be the only proof of the conspiracy. Id. at 857-58.
Under this Court’s precedent, “trial evidence is sufficient
to establish a single conspiracy where the conspirators are
shown to share the same objectives, the same methods, the same
geographic spread, and the same results.” United States v.
Smith, 451 F.3d 209, 218 (4th Cir. 2006). A member of a
conspiracy may not know its full scope or partake in its full
range of activities; moreover, the conspiracy need not “have a
discrete, identifiable organizational structure.” United States
v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). “[O]nce it has
been shown that a conspiracy exists, the evidence need only
establish a slight connection between the defendant and the
5
conspiracy to support conviction.” Burgos, 94 F.3d at 861(quotation marks and citation omitted). “The term ‘slight’ does
not describe the quantum of evidence that the Government must
elicit in order to establish the conspiracy, but rather the
connection that the defendant maintains with the conspiracy.”
Id.The evidence of Patterson and Isbell’s participation in the
charged conspiracy was significant. Numerous co-conspirators
testified that the Defendants regularly purchased cocaine and
cocaine base from and sold it to the same network of individuals
in and around the same localities in western North Carolina.
They also testified that the Defendants referred buyers to other
members of the conspiracy, transacted exchanges on behalf of
other conspirators, as well as sometimes asking others to do the
same for them.
In addition to the testimony of co-conspirators, the
Government proved its case based on the testimony of law
enforcement officers who had interacted with and investigated
the Defendants. Both Patterson and Isbell had previously been
found in possession of cocaine or cocaine base during searches
of their vehicle or residence. In addition, telephone records
connected numbers associated with the Defendants to each other
and also to numbers associated with other members of the charged
conspiracy. Lastly, expert testimony described the Defendants’
6
failure to file federal tax returns and that the failure to file
regular returns was consistent with common practices among
individuals who earned their living by distributing narcotics.
Our review of the evidence in the record as summarized
above leads us to conclude that a rational trier of fact could
have found the essential elements of the charged single
conspiracy beyond a reasonable doubt. Accordingly, the evidence
is sufficient to support the Defendants’ convictions. Cf.
Jackson, 443 U.S. at 319.
B.
Patterson and Isbell raise two challenges related to the
district court’s limitations on cross-examination of witnesses.
First, they contend the district court abused its discretion by
preventing them from cross-examining witnesses about the
disposition of state charges that had been brought against them
but which were ultimately dismissed. Second, they contend the
district court abused its discretion by refusing to allow them
to inquire about possible racial bias during the course of the
investigation into the drug conspiracy. They assert that in
each instance, the district court violated their constitutional
right to confront the witnesses against them.
7
1.
As part of its case against Patterson, the Government
called a former Lenoir Police Department officer to testify
about a March 1998 traffic stop during which he discovered crack
cocaine in Patterson’s possession. On cross-examination,
Patterson attempted to introduce evidence that state charges
brought as a result of this incident had been dismissed. The
district court sustained the Government’s objection.
The Government later called a state bureau of investigation
agent who, in describing the sort of evidence relevant to his
investigation into the charged conspiracy, referred to his
discovering the fact that drugs were seized during an October
2000 search of Isbell’s residence. On cross-examination, Isbell
attempted to elicit testimony that the state charges brought
against him as a result of the 2000 search were ultimately
dismissed. The district court once again disagreed, stating
that such questioning would
invite a mini trial on what happened and why . . .
[i]t would be more likely to invite confusion or
misunderstanding by the jury to go into the fact that
the state for whatever reason didn’t pursue [the
charges]. And you know well yourself that there are
zillions of reasons why cases get dismissed and none
of them . . . concern this jury.
(J.A. 1770-71.)
Throughout both of these exchanges, the Defendants raised
evidentiary arguments as to why they should be permitted to
8
introduce evidence that the state charges were dismissed. At no
time did they refer to their constitutional right to confront
the witnesses against them. Because the Defendants raise a
Confrontation Clause argument for the first time on appeal, we
review it for plain error. See United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005) (reviewing for plain error an
issue the party failed to raise below); see also United States
v. Gibbs, 739 F.2d 838, 846-50 & n.25 (3d Cir. 1984) (reviewing
for plain error a Confrontation Clause argument raised for the
first time on appeal even where the defendant raised an
admissibility argument below because separate rules govern each
issue, and preserving the latter does not preserve the former).
Under plain error review, the Defendants must show: (1) there is
an error; (2) the error is plain; (3) the error affects their
substantial rights; and (4) failure to correct the error “would
result in a miscarriage of justice, such as when the defendant
is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Hughes, 401 F.3d at 547, 548, 555 (quotation
marks and citations omitted).
The Confrontation Clause of the Sixth Amendment guarantees
criminal defendants the opportunity for effective cross-
examination. See Davis v. Alaska, 415 U.S. 308, 315-16 (1974).
It does not, however, confer the right to cross-examine “in
9
whatever way, and to whatever extent, the defense might wish.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quoting
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).
District courts thus “retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
. . . cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Id.Having reviewed the record, we find no error – let alone
plain error – in the district court’s refusal to allow the
Defendants to cross-examine the witnesses on this issue.
Evidence that state charges against Patterson and Isbell were
dismissed was simply not relevant to the issue before the jury:
whether Patterson and Isbell conspired to distribute narcotics,
in violation of federal law. Moreover, as the district court
observed, the reason why the state charges were dismissed could
be entirely unrelated to whether the Defendants committed the
acts described. The admission of such evidence would have been
only marginally relevant and confused the issues before the
10
jury. As such, the district court’s ruling did not plainly
violate the Defendants’ Confrontation Clause rights. 2
2.
The same principles guide our review of the other
Confrontation Clause-based issue the Defendants raise, the
district court’s refusal to allow them to inquire into possible
racial bias in the investigation. During their cross-
examination of an agent who investigated the conspiracy, the
Defendants sought to elicit testimony about the race of the
individuals investigated and indicted for their participation in
the conspiracy. The district court prohibited the Defendants
2
The Defendants do not raise a separate evidentiary-based
argument on appeal, but to the extent such an argument overlaps
with the Confrontation Clause argument, it also fails. Although
this Court has not previously examined this issue directly,
every other circuit that has done so has uniformly upheld the
district court’s exercise of discretion to exclude evidence of
the disposition of a prior criminal proceeding. E.g., United
States v. Lyons, 403 F.3d 1248, 1255-56 (11th Cir. 2005); United
States v. Smith, 145 F.3d 458, 462-63 (1st Cir. 1998); United
States v. Tirrell, 120 F.3d 670, 677-78 (7th Cir. 1997); United
States v. Riley, 684 F.2d 542, 546 (8th Cir. 1982); United
States v. Kerley, 643 F.2d 299, 300-01 (5th Cir. 1981). As
discussed previously, such evidence had minimal to no probative
value, and was likely to confuse or mislead the jury. Thus,
under Federal Rules of Evidence 401 and 403, the district court
did not abuse its discretion in prohibiting the Defendants from
introducing evidence on this point. See United States v. Moore,
27 F.3d 969, 974 (4th Cir. 1994) (reviewing for abuse of
discretion a district court’s ruling on the admissibility of
evidence under the Federal Rules of Evidence).
11
from pursuing this line of questioning because it would lead to
a “rabbit trail [of] immaterial[ity]” as to whether Patterson
and Isbell participated in the conspiracy. (J.A. 1780.)
Once again, the Defendants’ arguments at trial focused on
the admissibility of this evidence rather than whether their
Confrontation Clause rights were being violated. Accordingly,
we review their argument for plain error. Cf. Hughes, 401 F.3d
at 547. We conclude the district court did not plainly err in
prohibiting the Defendants from cross-examining the agent about
possible racial bias in the investigation. Nothing the
Defendants sought to present at trial tended to show that any
investigator acted with racial bias. While they sought to
introduce evidence of the race of individuals indicted for the
conspiracy, they offered no evidence connecting that information
to any evidence suggesting that either the investigation or the
decision of whom to indict was racially motivated.
Consequently, this line of inquiry would unnecessarily have led
the jury astray from the issue before them, whether Patterson
and Isbell were members of the charged conspiracy. As such, the
district court’s decision to prohibit such questioning did not
constitute error.
12
C.
Patterson and Isbell next claim they were denied a fair
trial due to the district court’s decision not to exclude the
testimony of witnesses who had violated the court’s
sequestration order. 3 During the trial, a witness testified that
he and several other witnesses had been locked up together at
the courthouse for several days as they waited to testify. The
witness claimed that during that time, another witness told the
others questions he had been asked such as “questions about your
school history[,] . . . did you use drugs or anything of that
nature.” (J.A. 1330-31.) The witness claimed that they had not
talked about the answers to any of the questions or conferred to
get their stories straight. The Defendants requested a
mistrial, or in the alternative that the witnesses’ testimony be
stricken, or for a limiting instruction.
Noting the availability of several remedies in cases where
a sequestration order is violated, the district court concluded
“there has been significant cross examination of all the
witnesses subsequent to the very first day of trial . . . [and]
[g]oing forward . . . counsel is encouraged to undertake what
3
Prior to trial, the district court issued a sequestration
order prohibiting “any person who will be or may become a
witness in this case (except those excluded by Rule 615)” from,
inter alia, “talk[ing] with anyone who will be or may become a
witness about any subject related to this trial.” (J.A. 214.)
13
it’s been doing all along and that is cross examining on the
potential cross fertilization of testimony that may have
occurred.” (J.A. 1338.) The court denied the motion for a
mistrial, but did instruct the jury about the violation of the
sequestration order. 4
On appeal, the Defendants claim that the limiting
instruction was insufficient to cure the breach of the violation
of the sequestration order. This is so, they contend, because
the Government’s case against them consisted almost entirely of
the testimony of co-conspirators, and the violation of the
sequestration order significantly undermined the credibility of
4
The instruction given stated:
You’ve heard testimony that several government
witnesses are housed together either at the county – a
county jail or in this courthouse. You’ve heard
testimony earlier today from government witness . . .
Corpening that while in the holding cell of this
courthouse, he heard a prior witness or witnesses who
had already testified describe certain questions that
had been posed in this trial. You may consider this
information and like information as you determine the
credibility of the testimony that you have heard. In
other words, if you find any witness may have been
exposed to conversations about this case or that any
witness may have participated in such conversation,
you should receive the testimony of such a witness
with great caution and you may give it such weight, if
any, as you deem appropriate in the light of these
alleged conversations or other similar evidence.
(J.A. 1407.)
14
that testimony, which in turn undermines confidence in the
jury’s verdict.
This Court reviews the district court’s selection of a
remedy for the violation of a sequestration order for abuse of
discretion. See United States v. Leggett, 326 F.2d 613, 613-14
(4th Cir. 1964) (per curiam) (stating the court’s choice of
remedy “depends upon the particular circumstances and lies
within the sound discretion of the trial court”).
In United States v. Cropp, 127 F.3d 354 (4th Cir. 1997),
the Court observed that the Supreme Court has identified three
remedies that are appropriate when a sequestration order has
been violated: (1) sanctioning the witness; (2) instructing the
jury that it may consider the violation with regard to the issue
of credibility; or (3) excluding the witness’ testimony. Id. at
363. “The remedy of exclusion is so severe that it is generally
employed only when there has been a showing that a party or a
party’s counsel caused the violation.” Id.Here, the district court, after reviewing the available
options and the nature of the violation in this case, chose the
second remedy of issuing a jury instruction. In so doing, it
did not abuse its discretion. There is no suggestion in this
case that the Government caused the violation of the
sequestration order. In addition to giving a limiting
instruction, the district court also permitted Patterson and
15
Isbell to extensively cross-examine witnesses about the
sequestration order violation as well as other occasions where
the witnesses were housed together and able to communicate with
one another prior to trial. The jury thus considered – and
rejected – the Defendants’ contention that the witnesses’
testimony was unreliable or incredible due to opportunities
where the witnesses communicated with one another. Accordingly,
we conclude the district court did not abuse its discretion in
deciding to issue a limiting instruction rather than excluding
the witnesses’ testimony.
D.
Isbell challenges the district court’s denial of his
pretrial motion to suppress evidence seized during an October
2000 search of his residence. Specifically, Isbell asserts that
the basis for the warrant – an affidavit signed by Caldwell
County Sheriff’s Department Detective J.K. Coleman – did not
allege facts sufficient to support a probable cause finding.
Accordingly, Isbell contends that the subsequent search violated
his Fourth Amendment rights, and required suppression of all
evidence obtained during the search.
The Fourth Amendment guarantees “the right of the people to
be secure in their . . . houses . . . against unreasonable
searches and seizures.” The Supreme Court adopted the
16
prophylactic exclusionary rule to deter future police conduct
that violates the Fourth Amendment. As such, evidence obtained
in violation of the Fourth Amendment – e.g., based on a search
warrant that is not supported by probable cause – cannot be used
in a criminal proceeding against the victim of the illegal
search and seizure. United States v. Calandra, 414 U.S. 338,
347 (1974). 5
This Court reviews the legal conclusions underpinning a
denial of a motion to suppress de novo and we review the
district court’s factual findings for clear error. United
States v. Richardson, 607 F.3d 357, 369 (4th Cir. 2010). An
appellate court’s duty is “to ensure that the magistrate had a
substantial basis for concluding that probable cause existed.”
Id. (quotation marks omitted). “When reviewing the probable
cause supporting a warrant, a reviewing court must consider only
the information presented to the magistrate who issued the
warrant.” United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir.
1996) (citing United States v. Blackwood, 913 F.2d 139, 142 (4th
Cir. 1990)). But the Court reviews that evidence in the light
5
In United States v. Leon, 468 U.S. 897 (1984), the Supreme
Court established a good-faith exception to this rule, which
permits, under certain circumstances, the use of evidence
obtained through a subsequently-invalidated search warrant. In
this case, we decline to exercise our discretion to proceed
directly to considering whether the Leon exception applies. See
United States v. DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004).
17
most favorable to the Government. United States v. Matthews,
591 F.3d 230, 234 (4th Cir. 2009).
Whether probable cause exists is a case-by-case inquiry
that depends on the totality of the circumstances. United
States v. DeQuasie, 373 F.3d 509, 518 (4th Cir. 2004). The
judge reviewing the application for a search warrant must
“simply . . . make a practical, common-sense decision whether,
given all the circumstances set forth . . . there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983); see also Ornelas v. United States, 517 U.S. 690, 696
(1996). Thus, the known facts and circumstances of a case at
the time a warrant is sought will not – and need not – be an
airtight case against the defendant. Instead, the concern is
whether a reasonable person would conclude the “fair
probability” that such evidence exists. See Gates, 462 U.S. at
238.
Here, the magistrate judge based the probable cause
determination on an affidavit provided by Detective Coleman.
That affidavit provides the following information: Within 96
hours of the affidavit being signed, Detective Coleman had
spoken with a “confidential and reliable source of information”
(“CI”) who had on at least four prior occasions provided
information that resulted in the seizure of controlled
18
substances and arrests of suspects. (J.A. 182.) The CI told
Coleman that Isbell sold “quantities of alleged crack cocaine”
to the CI “in the past.” (J.A. 182.) Based on this
information, Detective Coleman arranged for the CI to make a
controlled purchase of crack cocaine from Isbell at his
residence on Prospect Street. The CI was equipped with wireless
transmitters that were monitored but not recorded; in addition,
prior to the purchase, the CI and her vehicle were searched for
contraband. Law enforcement officers monitored – both visually
and via the CI’s wire – the transaction where the CI purchased
“a quantity of off-white rock-like substance,” which Isbell
represented to be crack cocaine. (J.A. 183.) After making the
purchase, the CI traveled directly to an arranged spot and
delivered the substance to law enforcement officers. In
addition, the affidavit stated that Coleman’s investigation of
Isbell revealed that in October 1999, two anonymous telephone
callers reported that Isbell was selling drugs from his parents’
home. Based on the totality of these facts, as well as his
experience and education, 6 Detective Coleman believed there was
6
Detective Coleman averred that he had received over 1,000
hours of law enforcement training, had completed over 90
semester hours towards a bachelor’s degree majoring in criminal
justice, and had been involved in numerous narcotics
investigations. He further stated that he had worked closely
with agencies at every level of government concerning drug
trafficking in North Carolina and was familiar with distribution
(Continued)
19
probable cause to authorize a search for controlled substances
at Isbell’s residence on Prospect Street.
Isbell characterizes the affidavit as “bare bones,” failing
to provide sufficient detail of timely events occurring at
Isbell’s Prospect Street residence to support a probable cause
determination. Much of Isbell’s argument focuses on the
inadequacy of specific components of the affidavit and ignores
the Supreme Court’s directive that a probable cause
determination is made based on the “totality of the
circumstances.” See Gates, 462 U.S. at 238-39 (adopting a
“totality of the circumstances” test in evaluating probable
cause rather than requiring independent scrutiny of each piece
of evidence cited in an affidavit). Thus, information that may
not be independently sufficient can, when combined with other
factors, support the court’s overall analysis.
Isbell also contends the CI’s statements about past
purchases of narcotics from Isbell were insufficiently detailed
or reliable to form the basis of probable cause. This argument,
too, lacks merit. “[P]robable cause may be founded upon hearsay
and information received from informants.” DeQuasie, 373 F.3d
at 518. As a general principle, it is not necessary for all
methods of drug trafficking within the state, and specifically
within Caldwell County.
20
tips to be corroborated in order to be considered credible, and
whether corroboration is necessary in a given case depends on
the particular circumstances of that case. Id. at 518-19.
Here, the CI was not an anonymous source, but someone known to
Detective Coleman who had previously provided reliable
information that assisted in arrests on four prior occasions.
Nor were the CI’s statements simply generalized comments casting
suspicion on Isbell; they were comments admitting to
participating in the alleged illegal conduct – the CI claimed to
have personally purchased cocaine from Isbell. 7 “The Supreme
Court has repeatedly recognized that a proven, reliable
informant is entitled to far more credence than an unknown,
anonymous tipster.” See United States v. Bynum, 293 F.3d 192,
197 (4th Cir. 2002).
Detective Coleman’s affidavit also contained detailed
information about the CI’s controlled purchase of cocaine from
Isbell at his Prospect Street resident within 96 hours of
signing the affidavit. The controlled purchase not only
7
These circumstances sharply distinguish this case from the
“bare bones” affidavit in United States v. Wilhelm, 80 F.3d 116,
121 (4th Cir. 1996), which the Court concluded could not support
a probable cause finding. The affidavit in Wilhelm was based on
a single telephone call from an anonymous “concerned citizen”
who the affiant swore, without any basis for doing so, was “a
mature person with personal connections with the suspects and
[who] has projected a truthfull [sic] demeanor . . . .” Id. at
117-18, 121.
21
corroborated the CI’s statements regarding her past purchases,
but also provided independent grounds on which to base the
finding of probable cause. See United States v. Clyburn, 24
F.3d 613, 618 (4th Cir. 1994) (holding the controlled purchase
of crack cocaine at the suspect’s residence verified an
informant’s reliability as to prior purchases and also
constituted probable cause for issuance of a search warrant).
Relying on United States v. Wagner, 989 F.2d 69 (2d Cir.
1993), Isbell asserts that the controlled purchase was too
remote in time from the issuance of the warrant to support a
finding of probable cause. This Court has repeatedly said “the
vitality of probable cause cannot be quantified by simply
counting the number of days between the occurrence of the facts
supplied and the issuance of the affidavit.” United States v.
Farmer, 370 F.3d 435, 439 (4th Cir. 2004) (quotation omitted).
“Rather, [the Court] must look to all the facts and
circumstances of the case, including the nature of the unlawful
activity alleged, the length of the activity, and the nature of
the property to be seized.” Id. (quotation omitted).
Furthermore, the period of 96 hours at issue here is a much
shorter time frame than the six weeks that lapsed between the
drug purchase and acquisition of a search warrant in Wagner.
Cf. Wagner, 989 F.2d at 74-75.
22
For these reasons, the totality of the circumstances set
forth in Detective Coleman’s affidavit supports the magistrate
judge’s finding of probable cause to issue the search warrant of
Isbell’s residence. The district court thus did not err in
denying Isbell’s motion to suppress the evidence uncovered
during the subsequent search.
E.
Lastly, Patterson challenges two components of the
procedural reasonableness of his sentence: whether the district
court erred in applying a two-level offense level enhancement
for possession of a firearm and whether the district court erred
in failing to adequately articulate the basis for its sentence. 8
1.
Over Patterson’s objection, the district court applied a
two-level enhancement to his offense level pursuant to U.S.S.G.
§ 2D1.1(b)(1). This section requires the district court to
increase a defendant’s offense level two levels “[i]f a
dangerous weapon (including a firearm) was possessed” during a
drug offense. U.S.S.G. § 2D1.1(b)(1). The evidence adduced at
8
As noted above, Isbell does not raise any issues on appeal
related to his sentence.
23
trial shows that at least three witnesses testified that
Patterson possessed a firearm as part of the conspiracy to
distribute drugs. Carlos Gibbs, a co-conspirator, testified
that Patterson had a firearm in his vehicle during drug
transactions. Former Lenoir Police Department Officer Michael
Rawls testified that Patterson was carrying a firearm during a
1998 traffic stop during which narcotics were seized from
Patterson’s vehicle. 9 And Samuel Davis, another co-conspirator,
testified that he gave Patterson a gun in 1995 because Patterson
“was in some trouble, [and] needed one” for protection during a
conflict Patterson had with some other drug dealers. (J.A.
1584-85.)
Based on this evidence, the district court did not clearly
err in applying the enhancement to Patterson’s offense level
calculation. United States v. Layton, 564 F.3d 330, 334 (4th
Cir. 2009) (stating that an appellate court reviews the district
court’s legal conclusions de novo and its factual findings for
clear error); United States v. Harvey, 532 F.3d 326, 336-37 (4th
Cir. 2008) (stating that a court will reverse for clear error
9
Although Rawls mistakenly misidentified Isbell, rather
than Patterson, as the individual involved in the 1998 traffic
stop, Patterson did not object to this misidentification.
Moreover, Rawls’ testimony and the accompanying paperwork
surrounding the arrest clearly identified Patterson as the
individual in possession of both a firearm and narcotics.
24
only if it is “left with the definite and firm conviction that a
mistake has been committed”) (internal quotation marks omitted).
2.
After calculating Patterson’s advisory Guidelines range and
hearing the parties’ arguments as to an appropriate sentence,
the district court stated: “Pursuant to the Sentencing Reform
Act of 1984, U.S. against Booker, and [18 U.S.C. § 3553(a),]
[Patterson] will be committed to custody for a period of 324
months. That being the low end of the guidelines.” (J.A.
2430.) Patterson contends that this explanation fails to
adequately explain the basis for the sentence imposed, based on
this Court’s precedent. The Government, noting that Patterson’s
sentencing hearing took place prior to this Court’s decisions in
United States v. Carter, 564 F.3d 325 (4th Cir. 2009), and
United States v. Lynn, 592 F.3d 572 (4th Cir. 2010), concedes
that the court’s explanation was inadequate and that the
sentence should be vacated and the matter remanded for
resentencing.
We agree. Although Patterson’s sentence was at the low end
of the Guidelines range, the district court failed to provide
any explanation in support of the sentence it ultimately
imposed. As such, it did not allow for meaningful adequate
review of the sentence, as set out in Carter. 564 F.3d at 328
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(“When rendering a sentence, the district court must make an
individualized assessment based on the facts presented [and]
state in open court the particular reasons supporting its chosen
sentence.” (internal quotation marks and citations omitted)).
We cannot say that this error was harmless. Lynn, 592 F.3d at
585 (finding reversible error where the district court’s brief
comments did not show that it had “considered the defendant’s
nonfrivolous arguments prior to sentencing him” and the
Government could not show that the district court’s “explicit
consideration of those arguments would not have affected the
sentence imposed” (internal quotation marks omitted)).
Accordingly, we vacate Patterson’s sentence and remand for
resentencing.
III.
For the aforementioned reasons, we affirm the district
court’s judgments of conviction as to both Patterson and Isbell.
However, we vacate Patterson’s sentence and remand for
resentencing.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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