United States v. White ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                        No. 98-4770
    MARVIN WHITE,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                        No. 98-4771
    DEBORAH L. WHITE,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                        No. 98-4784
    FLOYD J. WHITE,
    Defendant-Appellant.
    Appeals from the United States District Court
    for the Southern District of West Virginia, at Beckley.
    Charles H. Haden II, Chief District Judge.
    (CR-97-194-5)
    Submitted: August 31, 1999
    Decided: September 20, 1999
    Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Brian J. Kornbrath, Assistant Federal Public Defender, Charleston,
    West Virginia; G. Ernest Skaggs, Fayetteville, West Virginia; Mat-
    thew A. Victor, Charleston, West Virginia, for Appellants. Rebecca
    A. Betts, United States Attorney, Steven I. Loew, Assistant United
    States Attorney, Charleston, West Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Appellants appeal their convictions for aiding and abetting the theft
    of government property, in violation of 18 U.S.C.A.§ 641 (West
    1976 & Supp. 1999), aiding and abetting the possession with intent
    to distribute marijuana, in violation of 21 U.S.C.§ 841(a)(1) (1994),
    aiding and abetting the manufacture by growing and cultivating 100
    or more marijuana plants, in violation of 21 U.S.C.§ 841(a)(1), and
    being a felon in possession of a firearm, in violation of 
    18 U.S.C.A. § 922
    (g)(1) (West Supp. 1999). Marvin White also challenges his sen-
    tence. Finding no error, we affirm the judgments.
    Floyd and Deborah White allege that the search warrant for the
    search of their farm was not supported by substantial evidence for the
    search for burglary tools, tractor serial number plate, and National
    Park Service identification stickers. We find that probable cause
    existed to support the warrant. See Illinois v. Gates, 
    462 U.S. 213
    , 238
    (1983); United States v. Lalor, 
    996 F.2d 1578
    , 1581 (4th Cir. 1993);
    United States v. Torch, 
    609 F.2d 1088
    , 1089 (4th Cir. 1979). Floyd
    and Deborah White assign error to the district court's order granting
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    the Government's motion in limine to prevent them from presenting
    evidence relevant to an entrapment by estoppel defense. Specifically,
    the Government sought to exclude any evidence that would support
    the Whites' claim that a federally-licensed firearms dealer told them
    that they could legally possess firearms despite their having a prior
    felony conviction. We find that the court did not err in granting the
    motion. See United States v. Etheridge, 
    932 F.2d 318
    , 320 (4th Cir.
    1991); see also United States v. Howell, 
    37 F.3d 1197
    , 1205-06 (7th
    Cir. 1994); United States v. Billue, 
    994 F.2d 1562
    , 1568-69 (11th Cir.
    1993); United States v. Austin, 
    915 F.2d 363
    , 366-67 (8th Cir. 1990)
    (all holding that federally licensed firearms dealers are not public offi-
    cials for purposes of the entrapment by estoppel defense).
    All three Appellants allege that sufficient evidence was not pre-
    sented at trial to support their convictions on each count. Taking the
    view most favorable to the Government, we find that sufficient evi-
    dence existed to support each count of conviction for each Appellant.
    See Glasser v. United States, 
    315 U.S. 60
    , 80 (1942). All three Appel-
    lants also argue that the district court erroneously abdicated its role
    as an independent fact finder when it relied upon the testimony at trial
    and the jury's verdict in determining the amount of marijuana plants
    cultivated.
    The court held an evidentiary hearing at sentencing and heard testi-
    mony from opposing witnesses on the issue of number of marijuana
    plants. The court found that competent evidence supported the jury's
    finding that over 100 plants were cultivated. The Appellants rely upon
    Edwards v. United States, 
    523 U.S. 511
     (1998). We find that Edwards
    is not applicable to this case because there was no doubt as to the
    jury's finding regarding the type and amount of drugs involved in the
    offense. We find that the court did not clearly err and sufficiently
    found that a preponderance of the evidence supported the amount of
    cultivated marijuana plants attributed to the Appellants. See United
    States v. D'Anjou, 
    16 F.3d 604
    , 614 (4th Cir. 1994).
    Marvin White argues that the district court erred in denying his
    motion to sever the trial because there was no basis for a joint trial
    under Rule 8 of the Federal Rules of Criminal Procedure. We find
    that the court did not abuse its discretion in denying the motion. See
    United States v. Brooks, 
    957 F.2d 1138
    , 1145 (4th Cir. 1992). See
    3
    also Zafiro v. United States, 
    506 U.S. 534
    , 537-40 (1993); United
    States v. Spitler, 
    800 F.2d 1267
    , 1271-72 (4th Cir. 1986). Finally,
    Marvin White argues that the court erred in increasing his offense
    level under U.S. Sentencing Guidelines Manual , § 3C1.1 (Nov. 1998),
    for obstruction of justice, based upon his perjury at trial. We find the
    court's finding on the enhancement for perjury to be sufficient. See
    United States v. Castner, 
    50 F.3d 1267
    , 1279 (4th Cir. 1995) (quoting
    United States v. Dunnigan, 
    507 U.S. 87
    , 94-95 (1993)).
    We therefore affirm the judgments. We dispense with oral argu-
    ment because the facts and legal contentions are adequately presented
    in the materials before the court and argument would not aid the deci-
    sional process.
    AFFIRMED
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