United States v. Donavon Crawford , 552 F. App'x 240 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4937
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONAVON DEWAYNE CRAWFORD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cr-00039-WO-1)
Argued: December 12, 2013 Decided: January 24, 2014
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: John David Bryson, WYATT, EARLY, HARRIS & WHEELER, LLP,
High Point, North Carolina, for Appellant. Clifton Thomas
Barrett, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Ripley Rand, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The instant case requires us to consider two issues:
whether the district court erred by either (1) denying Appellant
Donavon Dewayne Crawford’s (“Appellant”) motion to suppress; or
(2) determining Appellant was a career offender at sentencing.
Because there was a substantial basis for determining
the existence of probable cause under the circumstances
described in the search warrant application affidavit, we
conclude there was a sufficient showing of probable case. And,
per the plain language of section 4A1.2(a)(2) of the 2011 United
States Sentencing Guidelines (“U.S.S.G.” or “Sentencing
Guidelines”), it is readily apparent that Appellant was arrested
for the acts underlying his first felony conviction before he
was arrested for the acts underlying his second felony
conviction. Hence, due to this intervening arrest, both
offenses are appropriately counted toward his career offender
status. 1 Therefore, we conclude the district court properly
denied Appellant’s motion to suppress and properly determined
Appellant qualified for a career offender sentence enhancement.
Accordingly, we affirm.
1
Because Crawford received separate sentences for these two
offenses under North Carolina law, the distinction we recently
made in United States v. Davis, 720 F.3d 215 (4th Cir. 2013),
does not apply.
2
I.
A.
On August 10, 2011, Investigator J.C. Husketh
(“Investigator Husketh”), an officer with the Durham Police
Department in Durham, North Carolina, applied for a warrant to
search for controlled substances and items related to the
distribution of controlled substances at Appellant’s residence
on Davinci Street in Durham, North Carolina. In the warrant
application affidavit, Investigator Husketh averred that he had,
at some earlier point in time, received a complaint from Sgt. M.
Massey, an officer with the Person County Sheriff’s Department
in neighboring Person County, North Carolina, that Appellant
“was selling large amounts of cocaine and marijuana, and had in
his possession several firearms.” J.A. 20, Aff. ¶ 5. 2 The
affidavit further stated,
[Appellant] was at his residence when
members of the Durham Police Department
conducted a Knock and Talk at his residence
at 1023 Davinci Street, Durham NC 27704.
Sgt. M. Massey advised that [Appellant]
proceeded to stash a large amount of crack
cocaine and marijuana inside the air vents
inside the residence. [Appellant] also
stored at least two firearms inside the same
vents. Members of the Durham Police
Department conducted the Knock and Talk at
the residence but were unaware of the
information from Sgt. M. Massey. The
2
Citations to the Joint Appendix (“J.A.”) refer to the
Joint Appendix filed by the parties in this appeal.
3
officers left the residence without locating
the controlled substance [sic] or illegal
firearms.
J.A. 20, Aff. ¶ 5. Investigator Husketh’s affidavit also
asserted,
On August 9, 2011[,] Investigators from the
Special Operation Division attempted to
conduct a Knock and Talk at the residence at
1023 Davinci Street, Durham NC 27704. When
Investigator Husketh approached the front
door[,] he noticed bullet holes in the front
side of the residence. The damage appeared
to be old but Officers know these signs to
be common in gang and drug areas.
J.A. 20, Aff. ¶ 8. Investigator Husketh next averred,
While at the residence[,] Investigator
Husketh noticed the trash to the residence
was sitting at the curb waiting for City
Trash Pickup. Investigator Husketh
conducted a trash pull and located multiple
torn plastic baggies. These items are known
to officers as drug paraphernalia and are
commonly found at drug houses. One of the
plastic baggies that Investigator Husketh
located inside the trashcan of 1023 Davinci
Street contained crack cocaine.
Investigator Husketh also located U.S. Mail
that was addressed to . . . [Appellant’s]
mother, according to his arrest report. The
same arrest report identified 1023 Davinci
Street as his address. 3
J.A. 20, Aff. ¶ 9.
Based on Investigator Husketh’s warrant application
affidavit, a state magistrate judge authorized the search
3
There was no date given for the trash pull.
4
warrant. When officers searched Appellant’s Davinci Street
residence pursuant to the warrant, they found crack cocaine,
marijuana, three prescription pills, $632 total in cash, two
firearms, ammunition, and drug paraphernalia. Some of the
contraband was located in the air vents.
Based on the results of this search, officers with the
Durham Police Department obtained and executed a second search
warrant on October 13, 2011, this time at an apartment that
Appellant maintained with his girlfriend on North Maple Street,
Durham, North Carolina. As officers made entry into a bedroom
of the residence, they identified Appellant in a bed with his
girlfriend and their two-year-old son. A sheet was covering all
three individuals. As officers removed the sheet, they
immediately seized a firearm from Appellant, which he had
concealed under the sheet.
B.
On February 27, 2012, a federal grand jury in the
Middle District of North Carolina indicted Appellant on eight
drug and firearm offenses. Appellant moved the district court
to suppress the drugs and firearms obtained during the August
10, 2011 search of his Davinci Street residence, contending the
affidavit supporting the search warrant did not establish the
requisite probable cause. Specifically, Appellant argued that
the affidavit, which contained undated descriptions of several
5
events, did not support a finding of probable cause because it
was subject to multiple interpretations regarding the timing of
events leading the officers to seek a search warrant. Appellant
also challenged the basis of the information contained in the
affidavit because it relied on statements made by another law
enforcement officer (Sgt. Massey) who did not reveal his source.
The district court acknowledged that the chain of
events detailed in the Davinci Street affidavit could be
interpreted in different ways, but ultimately denied Appellant’s
motion to suppress. Based on the totality of the circumstances,
the district court concluded the affidavit established probable
cause. The district court found that the contents of the trash,
which included drug paraphernalia, cocaine base, and mail
addressed to Appellant’s mother, corroborated Sgt. Massey’s tip.
Additionally, the district court determined that, even if the
affidavit did not establish probable cause, the good faith
exception to the warrant requirement applied.
Subsequently, Appellant entered a conditional guilty
plea pursuant to Fed. R. Crim. P. 11(a)(2), reserving his right
to appeal the district court’s denial of his motion to suppress.
Appellant pled guilty to one count of possession with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C); one count of possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
6
U.S.C. § 924(c)(1)(A)(i); and two counts of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
C.
Before sentencing, the United States Probation Office
completed a Presentence Investigation Report (“PSR”). The PSR
determined that Appellant had two prior state felony convictions
for assault inflicting serious bodily injury and second degree
kidnapping. As such, it recommended that Appellant be
designated as a career offender pursuant to U.S.S.G. § 4B1.1
(2011). A career offender designation has three requirements:
“(1) the defendant was at least eighteen years old at the time”
the instant offense was committed; (2) the instant felony
offense “is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). Pursuant to U.S.S.G.
§ 4B1.2(c), a defendant has “two prior felony convictions” if
the convictions were sustained before committing the instant
offense and “the sentences for at least two of the
aforementioned felony convictions are counted separately.” Id.
§ 4B1.2(c). “Prior sentences always are counted separately if
the sentences were imposed for offenses that were separated by
an intervening arrest . . . .” Id. § 4A1.2(a)(2). But see
7
Davis, 720 F.3d at 219 (holding that if the defendant received a
consolidated sentence for two prior offenses, “the existence of
an intervening arrest is irrelevant”). Appellant objected to
his designation as a career offender because, according to
Appellant, there was no intervening arrest between his two prior
felony offenses.
The underlying events of Appellant’s predicate
convictions, which the parties do not dispute, are as follows:
• On January 20, 2009, Appellant was arrested for
misdemeanor assault on a female for striking his
girlfriend in the face and breaking her jaw on January
13, 2009. Appellant posted bond the day after his
arrest.
• On February 9, 2009, Appellant kidnapped his
girlfriend, struck her in the face, and slammed her to
the ground. As a result, on February 10, 2009,
Appellant was again arrested and charged with felony
assault inflicting serious bodily injury, felony
assault with a deadly weapon with intent to kill,
felony assault with a deadly weapon, misdemeanor
assault on a female, and felony first degree
kidnapping.
• On April 6, 2009, Appellant was indicted on a charge
of felony assault inflicting serious bodily injury
based on the conduct underlying his January 20, 2009,
arrest. Appellant was not rearrested after the
indictment was returned.
• On April 15, 2010, Appellant pled guilty to two counts
of felony assault inflicting bodily injury and one
count of felonious second degree kidnapping as a
result of the January 20, 2009, and February 10, 2009,
arrests. 4
4
On the same day, Appellant also pled guilty to misdemeanor
assault on a female for conduct underlying his February 10, 2009
(Continued)
8
Although Appellant’s separate cases from January 20, 2009, and
February 10, 2009, were consolidated for sentencing on the same
day, April 15, 2010, he did not receive a consolidated sentence
or consolidated judgment. Appellant’s convictions remained
separate cases with separate case numbers, and he received
separate sentences for each conviction to run concurrently. 5
Appellant based his objection to his designation as a
career offender on the fact that his arrest on January 20, 2009,
was for a misdemeanor assault, and he was not indicted for
arrest. Additionally, Appellant pled guilty to felony
obstructing justice and felony intimidating a witness. On
February 10, 2009, through March 23, 2009, Appellant intimidated
his girlfriend, a witness against him, telling her to provide
fictitious information to the prosecutor assigned to his case.
He was charged with this conduct on April 17, 2009.
5
For his felony conviction of assault inflicting serious
bodily injury stemming from the conduct underlying his January
20, 2009 arrest, Appellant was sentenced to 19 to 23 months
imprisonment, suspended, and 36 months supervised probation,
with the first six months served in incarceration. Following
the revocation of his probation, this judgment was modified to
six months house arrest and six months intensive supervision.
For the conduct underlying his February 10, 2009 arrest,
Appellant was convicted of (1) both felony assault inflicting
serious bodily injury and misdemeanor assault, for which he
received a combined sentence of 24 to 29 months imprisonment,
suspended, and 36 months supervised probation; as well as (2)
felony second degree kidnapping, for which he received a
sentence of 36 to 53 months imprisonment, suspended, and 36
months probation. Again, following the revocation of his
probation, this judgment was modified to six months house arrest
and six months intensive supervision.
9
felony assault until April 6, 2009 -- after his February 2009
arrest for felony offenses. Thus, Appellant argued, there was
no intervening arrest and the offenses could not be counted
separately because the sentences were imposed on the same day.
The district court overruled Appellant’s objection, determining
that the offenses upon which the designation was based were, in
fact, separated by an intervening arrest under the plain
language of the Sentencing Guidelines.
Applying the career offender Sentencing Guidelines,
the district court determined that Appellant’s sentencing range
was 262 to 327 months imprisonment and sentenced Appellant to
262 months imprisonment.
II.
We initially consider the applicable standards of
review. First, when reviewing the district court’s denial of
Appellant’s motion to suppress, we review factual findings for
clear error and legal conclusions de novo. See United States v.
McGee, 736 F.3d 263, 269 (4th Cir. 2013) (citations omitted).
When, as here, “the district court denies a motion to suppress,
we view the evidence in the light most favorable to the
government.” Id.
Likewise, in assessing whether the district court has
properly classified Appellant as a career offender, “we review
the district court’s legal conclusions de novo and its factual
10
findings for clear error.” United States v. Manigan, 592 F.3d
621, 626 (4th Cir. 2010) (internal quotations omitted).
III.
A.
Appellant argues the search warrant application
affidavit filed by Investigator Husketh was insufficient to
supply probable cause to search because it relied on conclusory
assertions and was written in such a manner as to be open to
several different interpretations. We disagree.
While there are exceptions, “in the ordinary case,
seizures of personal property are unreasonable within the
meaning of the Fourth Amendment, without more, unless . . .
accomplished pursuant to a judicial warrant, issued by a neutral
magistrate after finding probable cause.” Illinois v. McArthur,
531 U.S. 326, 330 (2001) (internal quotations omitted). As
recognized by the Supreme Court, “probable cause is a fluid
concept -- turning on the assessment of probabilities in
particular factual contexts.” Illinois v. Gates, 462 U.S. 213,
232 (1983). The standard of probable cause requires “only the
probability, and not a prima facie showing, of criminal
activity” under the totality of the circumstances. Id. at 235
(internal quotations omitted).
The task of the issuing magistrate is simply
to make a practical, common-sense decision
whether, given all the circumstances set
11
forth in the affidavit before him, including
the veracity and basis of knowledge of
persons supplying hearsay information, there
is a fair probability that contraband or
evidence of a crime will be found in a
particular place.
Id. at 238 (internal quotations omitted).
Appellant’s argument disregards our deferential
approach to the magistrate’s assessment of the facts presented
in the affidavit. As the reviewing court, “we must accord
‘great deference’ to the magistrate’s assessment of the facts
presented to him.” United States v. Montieth, 662 F.3d 660, 664
(4th Cir. 2011) (quoting United States v. Blackwood, 913 F.2d
139, 142 (4th Cir. 1990)). Our inquiry is therefore limited “to
whether there was a ‘substantial basis for determining the
existence of probable cause.’” Id. (quoting Gates, 462 U.S. at
239).
As a practical matter, “affidavits are normally
drafted by nonlawyers in the midst and haste of a criminal
investigation. Technical requirements of elaborate specificity
once exacted under common law pleading have no proper place in
this area.” Gates, 462 U.S. at 235 (internal quotations
omitted). Probable cause to justify a warrant may be
established from any reliable source. “But to require that the
affiant amass every piece of conceivable evidence before seeking
a warrant is to misunderstand the burden of probable cause.”
12
Montieth, 662 F.3d at 665 (citations omitted). Further,
“[o]bservations of fellow officers of the Government engaged in
a common investigation are plainly a reliable basis for a
warrant applied for by one of their number.” United States v.
Ventresca, 380 U.S. 102, 111 (1965); see also United States v.
Hodge, 354 F.3d 305, 311 n.1 (4th Cir. 2004) (stating, in
reviewing a search warrant application affidavit, “statements of
other law enforcement officers ‘are plainly . . . reliable’ even
without any special showing.” (quoting Ventresca, 380 U.S. at
111)).
When viewed through the requisite deferential lens, we
conclude there was a substantial basis for determining the
existence of probable cause under the circumstances described in
the affidavit here. A common-sense reading of the affidavit
leads to a determination that, based on the totality of the
circumstances, the magistrate fairly concluded there was a
reasonable probability that contraband would be found in
Appellant’s Davinci Street residence. First, the affidavit
contained information from Sgt. Massey that Appellant was
“selling large amounts of cocaine and marijuana, and had in his
possession several firearms.” J.A. 19, Aff. ¶ 5. Second, the
affidavit indicated that investigators attempted to corroborate
this information by conducting at least one knock and talk on
August 9, 2011, where Investigator Husketh discovered “bullet
13
holes on the front side of the residence” commonly seen in “gang
and drug areas.” J.A. 20, Aff. ¶ 8. Third, the affidavit
described a trash pull conducted by Investigator Husketh where
he found “multiple torn plastic baggies,” one of which
“contained crack cocaine.” J.A. 20, Aff. ¶ 9. Finally, the
mail found in the trash, i.e., the mail addressed to Appellant’s
mother, established a nexus with the location to be searched.
Therefore, the affidavit was constitutionally sufficient and
provided substantial support for the common-sense conclusion
drawn by the magistrate. 6
B.
Appellant next contends the district court erred in
designating him as a career offender because the two offenses
upon which the court relied for the designation should not have
been counted as two separate prior felony convictions. Again,
we disagree.
Under the Sentencing Guidelines, a defendant is
designated a career offender if:
(1) the defendant was at least eighteen
years old at the time the defendant
committed the instant offense of conviction;
(2) the instant offense of conviction is a
6
Because we conclude that probable cause existed based on
the totality of the circumstances in this instance, it is
unnecessary to address the applicability of the good faith
exception. See United States v. Leon, 468 U.S. 897 (1984).
14
felony that is either a crime of violence or
a controlled substance offense; and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. § 4B1.1(a) (emphasis supplied). The Sentencing
Guidelines further illuminate the phrase “two prior felony
convictions” as “(1) the defendant committed the instant offense
of conviction subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled
substance offense . . ., and (2) the sentences for at least two
of the aforementioned felony convictions are counted separately”
in the defendant’s Criminal History Category. Id. § 4B1.2(c)
(emphasis supplied).
With regard to determining whether prior sentences are
treated separately in calculating the defendant’s criminal
history category, the Sentencing Guidelines instruct as follows:
Prior sentences always are counted
separately if the sentences were imposed for
offenses that were separated by an
intervening arrest (i.e., the defendant is
arrested for the first offense prior to
committing the second offense). If there is
no intervening arrest, prior sentences are
counted separately unless (A) the sentences
resulted from offenses contained in the same
charging instrument; or (B) the sentences
were imposed on the same day. Count any
prior sentence covered by (A) or (B) as a
single sentence.
U.S.S.G. § 4A1.2(a)(2). Therefore, when a court has imposed
sentences for multiple offenses on the same day, in order to
15
count as separate qualifying offenses, they must have been
“separated by an intervening arrest,” meaning that “the
defendant [was] arrested for the first offense prior to
committing the second offense.” Id. § 4A1.2(a)(2).
Appellant argues there was no intervening arrest
between the two qualifying offenses in this case because, while
he was ultimately convicted of felony assault based on his
January 20, 2009 misdemeanor arrest, he was not charged with a
felony for that offense until April 6, 2009, which was after his
February 10, 2009 arrest, and he was not rearrested following
the April 6, 2009 felony indictment. Appellant’s argument is
basically one of semantics. He urges that even though he was
ultimately charged and convicted of a felony, because his
initial arrest was based on a misdemeanor charge at the time of
arrest, it should not count for the purpose of the career
offender calculus.
Although we have not addressed this precise issue, 7 our
analysis need go no further than the plain language of the
7
Appellant points this court to United States v. Dean, 604
F.3d 169 (4th Cir. 2010); however, that case is not instructive
on the precise issue before us. While the defendant in Dean
also challenged his career offender designation on the basis
that he sustained no intervening arrest between his predicate
offenses, our focus in Dean was instead directed toward the
propriety of the district court’s reliance on certain documents
in determining the dates of the arrests. See id. at 171.
16
Sentencing Guidelines provision itself. Under a plain reading
of U.S.S.G. § 4A1.2(a)(2), whether or not an intervening arrest
has occurred is solely a matter of timing; offenses are
separated by an intervening arrest occur when “the defendant is
arrested for the first offense prior to committing the second
offense.” (emphasis supplied). Nothing in the plain language
of the Sentencing Guidelines gives any weight to the nature of
the crime with which the defendant is initially charged. This
comports with a common-sense interpretation of the definition of
an “intervening arrest” because, as a practical matter, the
nature and scope of charges often change between the time an
individual is initially arrested and the point at which a full
investigation is conducted and the individual is formally
charged. See United States v. Coleman, 38 F.3d 856, 860 (7th
Cir. 1994) (“Once arrested, the defendant was ‘arrested’ for all
charges that might have been filed relating to his conduct.
When looking for an intervening arrest [under the Guidelines],
we concentrate on the defendant’s conduct.”).
Here, it is readily apparent that Appellant committed
the acts underlying the felony assault conviction (January 20,
2009) before he committed the acts underlying the second degree
kidnapping conviction (February 10, 2009). Appellant received
separate sentences for these convictions. Hence, both offenses
17
should be separately counted as prior sentences under U.S.S.G.
§ 4A1.2(a)(2) and qualifying offenses under U.S.S.G. § 4B1.1(a).
IV.
Pursuant to the foregoing, the district court’s denial
of Appellant’s motion to suppress and designation of Appellant
as a career offender are
AFFIRMED.
18