US v. Darryl Handberry

Filing 920100319

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5076

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRYL HANDBERRY, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, Chief District Judge. (4:08-cr-00009-FL-1)

Submitted:

February 26, 2010

Decided:

March 19, 2010

Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Darryl Handberry pled guilty to making false

statements, in violation of 18 U.S.C. § 924(a)(1)(A) (2006), and possession and receipt of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (2006), while reserving the right to appeal the denial of his motion to suppress

evidence seized from his residence.

On appeal, Handberry argues

that the district court erred in denying his motion to suppress and also contends that the district court clearly erred in

imposing a four-level enhancement for use and possession of a weapon during another felony under U.S. Sentencing Guidelines Manual ("USSG") § 2K2.1(b)(6) (2007) of the Sentencing

Guidelines.

For the following reasons, we affirm.

I. In spring 2007, the Beaufort County Sheriff's

Department was contacted by a cooperating witness ("CW"), who informed the Department that he was able to buy cocaine and marijuana from a black male known as "D." On March 27, CW

contacted "D," who was later identified as David Pierre, and agreed to purchase cocaine from him at the Clifton Park

Apartments.

Later that day, CW purchased marijuana and cocaine

from Pierre and another, unidentified black male driving a green Jeep. Two days later, CW again contacted Pierre and ordered an 2

"eight ball" of powder cocaine; Pierre told CW to meet him on Bonner Street near 11th Street, and the transaction occurred without incident. Next, on April 2, 2007, CW ordered half of an

ounce of powder cocaine from Pierre, who again instructed CW to meet him on Bonner Street near 11th Street. Finally, on April 9, CW called Pierre around 4:30 p.m. to order three-quarters of an ounce of powder cocaine. Pierre By

instructed CW to meet him at the Clifton Park Apartments.

this time, the Sheriff's Department was operating surveillance at 1124 Bonner Street, where they believed Pierre was residing. On that day, deputies witnessed Pierre exit the residence and enter a car driven by a white female, identified later as Megan Midyette. Pierre arrived at the Clifton Park Apartments at 5:05

p.m. and completed the transaction with CW, at which point both Pierre and Midyette were detained by deputies. Pierre was

arrested and charged with several drug offenses, and Midyette was transported back to the Sheriff's Department after she

offered to cooperate with the investigators.

At the Department,

Midyette told one of the arresting officers that she was at 1124 Bonner Street to purchase marijuana from Pierre and did not know that Pierre was selling cocaine. While Midyette and Pierre were in transit, other

deputies, led by Lieutenant Russell Davenport, returned to 1124 Bonner Street, arriving there 3 at 5:10 p.m. When Davenport

approached the house, he heard loud music and knocked on the door without announcing his identity. Receiving no response,

Davenport turned an unlocked doorknob and entered the house. Upon entering, Davenport noticed a strong smell of marijuana. Davenport and the other deputies moved into the house, guns

raised, and shouted that any individuals in the home should lie down on the floor. Handberry, Dentley. the The deputies detained two residents, Darryl owner, and another individual, Randall

home's

When deputies pulled Handberry up to handcuff him, Once inside

they discovered he was lying on a Hi-Point pistol.

the home, deputies also viewed cocaine and marijuana lying on a table in plain view. house to ensure there The deputies performed a sweep of the were no other occupants, and placed

Handberry and Dentley in patrol cars. While deputies remained at the house, Lt. Davenport returned to the Sheriff's Department to apply for a search

warrant for the house.

The search warrant affidavit described

the surveillance of 1124 Bonner Street and identified it as the residence of Pierre, and noted the presence of the green Jeep used in one of CW's buys. The affidavit also stated that

deputies watched Pierre leave the residence that day with Megan Midyette to travel to Clifton Park Apartments to complete a drug transaction with CW. detention statement The affidavit referenced Midyette's postthat she went 4 to 1124 Bonner Street to

purchase marijuana but that Pierre first asked her to drive him to the Clifton Park Apartments. Finally, the affidavit

described the deputies' securing of the residence under "exigent circumstances." The affidavit stated that while securing the

premises Davenport witnessed cocaine, marijuana, digital scales, and a Hi-Point pistol in plain view in the living room. The search warrant was approved at 7:00 p.m. and was executed by Investigator Boyd. several items of evidentiary The search eventually produced value, including a sawed-off During the

shotgun hidden under the couch and several handguns.

search, Handberry motioned Investigator Boyd over to the patrol car where he was being detained and asked what was happening. Investigator Boyd informed Handberry that the deputies were

trying to ascertain what the guns were doing in the house, and Handberry replied that he purchased the shotgun for protection "off the street" and that the handguns recovered from the house were not his. At the time of this conversation, Handberry had

not been read his Miranda * rights. Based upon these events, a federal grand jury sitting in the Eastern District of North Carolina returned an eightcount indictment against Handberry and Pierre. charged Handberry and Pierre with conspiracy The indictment to make false

*

Miranda v. Arizona, 384 U.S. 436 (1966). 5

statements violation false

in of 18

connection

with

a

firearms (Count 18

transaction, One), and

in

U.S.C. § 371 in

(2006) of

making

statements,

violation

U.S.C.

§ 924(a)(1)(A)

(Count Two), and charged Handberry with possession and receipt of an unregistered firearm--the sawed-off shotgun recovered from the search--in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count Pierre. Handberry filed a motion to suppress the evidence Three). The five remaining charges referred only to

seized from his home, contesting the warrantless nature of the initial search. During the suppression hearing, Lt. Davenport

testified that it was a common practice for drug dealers in high crime neighborhoods to communicate with each other regarding

recent drug arrests in the area.

Davenport testified that as a

result, the target of a search is often able to destroy or move evidence before a search warrant is obtained. Davenport

explained that the arrests of Midyette and Pierre occurred in the parking lot of an apartment complex roughly one-half mile from 1124 Bonner Street, and for that reason, the deputies Davenport under

secured the house before obtaining a search warrant. also testified that he witnessed another

individual

investigation for drug dealing in the parking lot at the time Midyette and Pierre were arrested.

6

Following this hearing, a magistrate judge issued a written Memorandum recommending denial of the motion. Handberry

filed an objection to the magistrate judge's report, but the district court denied the motion to suppress. Thereafter,

pursuant to a written plea agreement, Handberry pled guilty to Count Two and Count Three, conditioned on his right to appeal the denial of his motion to suppress the evidence. The district

court sentenced Handberry to forty-six months imprisonment and three years of supervised release and Handberry noted a timely appeal.

II. On appeal, Handberry raises three issues: (1) whether

the district court erred in denying his motion to suppress the firearms discovered during the search at 1124 Bonner Street; (2) whether suppress the the district court erred to in denying his motion and to (3)

statements

given

Investigator

Boyd;

whether the district court clearly erred in adding a four-point enhancement for use and possession of a weapon during another felony under USSG § 2K2.1(b)(6) in sentencing Handberry. A. Handberry first argues that the district court erred in denying his motion to suppress. such a motion, we review the 7 In addressing the denial of court's findings of

district

historical

fact

for

clear

error,

giving

"due

weight

to

inferences drawn from those facts by resident judges and local law enforcement officers," and review de novo the ultimate legal conclusion. And, Ornelas v. United States, 517 U.S. 690, 699 (1996). the district court denied the motion to

"[b]ecause

suppress, we construe the evidence in the light most favorable to the Government." (4th Cir. 2004). In denying Handberry's motion to suppress the firearms seized from 1124 Bonner Street, the district court found that the deputies possessed probable cause to search the residence and that exigent circumstances excused their failure to obtain a warrant prior to entry. In the alternative, the district court United States v. Perkins, 363 F.3d 317, 320

found that the independent source doctrine applied because "a sufficient amount of genuinely independent evidence . . .

supported the [search warrant] affidavit."

Because we agree

with the district court that the independent source doctrine applies, we need not address whether exigent circumstances

permitted the warrantless entry. Under the Fourth Amendment, "even when officers have probable cause to believe that contraband is present in a home, a warrantless search of the home is unlawful unless exigent

circumstances exist at the time of entry." Mowatt, 513 F.3d 395, 399 (4th Cir. 2008). 8

United States v.

In recognized independent

Murray that of an "a

v.

United

States,

the

Supreme is the

Court

later,

lawful tainted

seizure one"--and

genuinely independent

earlier,

source doctrine applies--unless "the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was

presented to the Magistrate and affected his decision to issue the warrant." Murray Court 487 U.S. 533, 542 (1988) (footnote omitted). specifically applied the independent The

source

doctrine to a case in which execution of a search warrant was preceded by an illegal search of the same premises. cases, the Court held, the evidence recovered in In such the later

search is not admissible unless the government establishes that "no information gained from the illegal [search] affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it." States v. Dessesaure, 429 F.3d 359, Id. at 540; see United 369 (1st Cir. 2005)

(similar); United States v. Herrold, 962 F.2d 1131, 1140 (3d Cir. 1992) (similar). In this case, the magistrate judge and district court both concluded was that, even the assuming independent the original warrantless applied

search

improper,

source

doctrine

because a "sufficient amount of genuinely independent evidence" supported the search warrant affidavit. 9 On appeal, Handberry

argues that, absent the information gleaned from the original search--i.e., the marijuana, cocaine, digital scale and Hi-Point pistol--there was insufficient evidence to support a finding of probable cause. The depends on determination totality of of the whether probable cause exists a

the

circumstances

and

involves

"practical, common-sense decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." (1983). Illinois v. Gates, 462 U.S. 213, 238

Because "probable cause is a fluid concept--turning on

the assessment of probabilities in particular factual contexts-- not readily, or even usefully, reduced to a neat set of legal rules," id. at 232 we "give due weight to inferences drawn from [the] facts by . . . local law enforcement officers," Ornelas, 517 U.S. at 699; see also United States v. Dickey-Bey, 393 F.3d 449, 453 (4th Cir. 2004) ("Under this pragmatic, common sense approach, we defer to the expertise and experience of law

enforcement officers at the scene.").

"[T]he crucial element is

not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched." States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993). On sufficient balance, we agree with the district the court that United

independent

evidence 10

supported

search

warrant

affidavit.

The Sheriff's Department had identified 1124 Bonner

Street as Pierre's residence and had engaged in three undercover cocaine purchases from Pierre. The green Jeep used to transport On

Pierre to one of the purchases was located at the residence. the day in question, Pierre left the residence and

drove

directly to the Clifton Park apartments, where he completed the sale of cocaine to CW, suggesting that his cocaine supply was located at 1124 Bonner Street. In addition, Midyette told

Investigator Boyd that she went to the residence to purchase marijuana. These facts, all of which were obtained independent

of the initial entry and search, support a finding of probable cause. In addition, ample evidence suggests that the original search did not play a role in Lt. Davenport's decision to seek a warrant. Davenport testified that he believed the 1124 Bonner

Street residence needed to be secured because of his concern that another drug dealer would notify the residents of Pierre's arrest. Davenport The original search reflected that understanding, as and the deputies detained Handberry and the other

resident, swept the remainder of the house for individuals, and then exited. Other than spotting the items in plain view, no Indeed, the sawed-off shotgun

search for contraband occurred.

was found during the execution of the warrant and not during the initial search. The scope of this initial search supports the 11

inference that Lt. Davenport would have applied for the search warrant absent the evidence found in plain view. Therefore, the

district court did not err in denying the motion to suppress. B. Handberry next argues that the district court erred in admitting his statement to Investigator Boyd that he purchased the sawed-off shotgun recovered from the residence. The

Government argues that Handberry may not challenge this ruling on appeal by virtue of his conditional guilty plea. "A voluntary and intelligent plea of guilty is an

admission of all the elements of a formal criminal charge, and constitutes an admission of all material facts alleged in the charge." United States v. Willis, 992 F.2d 489, 490 (4th Cir. "When a

1993) (internal quotation marks and citations omitted).

defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings States v. conducted 392 prior F.3d to entry 644 of the Cir. plea." 2004).

United

Bundy,

641,

(4th

Thus, "when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." Id.

Based upon these considerations, "direct review of an adverse ruling on a pretrial motion is available only if the defendant expressly preserves 12 that right by entering a

conditional

guilty

plea"

pursuant

to

Rule

11(a)(2).

United "This

States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990).

approach comports with the general rule that conditions to a plea are not to be implied." quotation marks omitted). Handberry unconditionally pled guilty to Count Two and conditionally pled guilty to Count Three. The written plea Bundy, 392 F.3d at 645 (internal

agreement contains the following language: The parties agree: a. Pursuant to the defendant's conditional plea of guilty to [] Count Three of the Indictment herein and pursuant to Fed. R. Crim. P. 11(a)(2), that the defendant reserves the right to appeal from the portion of the Court's adverse decision on Defendant's Motion to Suppress Evidence, filed July 7, 2008, denying the defendant's motion to suppress the sawedoff shotgun obtained during the April 9, 2007, search of the defendant's residence. (J.A. at 206). During the Rule 11 colloquy, Handberry stated that he understood the conditional guilty plea he was entering, and the plea agreement specifically conditions the plea to Count Three on Handberry's right to appeal only "from the portion of the Court's adverse decision . . . denying the defendant's motion to suppress the sawed-off shotgun." colloquy suggests that Handberry Nothing during the Rule 11 understood the provision

differently or believed that he would be able to appeal the admission of his statement. Accordingly, 13 we agree with the

Government appeal.

that

Handberry

failed

to

preserve

this

issue

for

C. Finally, Handberry challenges the four-level

enhancement for use and possession of a weapon during another felony under USSG § 2K2.1(b)(6). The district court added this

enhancement after accepting the probation officer's finding that Handberry permitted Pierre to use one of the handguns during his drug this trafficking finding operation. the On appeal, Handberry that challenges the appeal

while

Government

contends

waiver contained in the plea agreement bars consideration of the issue. A defendant may waive the right to appeal if that

waiver is knowing and intelligent. F.3d 162, 169 (4th Cir. 2005).

United States v. Blick, 408

Generally, if the district court

fully questions a defendant regarding the waiver of his right to appeal during the Rule 11 colloquy, the waiver is both valid and enforceable. See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). Whether a defendant validly waived his right

to appeal is a question of law that this court reviews de novo. Blick, 408 F.3d at 168. An appeal waiver does not, however, bar

the appeal of a sentence imposed in excess of the statutory maximum or a challenge to the validity of a guilty plea. 14 United

States v. General, 278 F.3d 389, 399 n.4 (4th Cir. 2002); United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). The plea agreement contained the following appellate waiver: The Defendant agrees: c. To waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the advisory Guideline range, reserving only the right to appeal from a sentence in excess of the applicable advisory Guideline range that is established at sentencing, and further to waive all right to contest the conviction or sentence in any post-conviction proceeding . . . excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea. (J.A. at 204). During specifically ensuring that the Rule 11 colloquy, appeal its the magistrate with judge

referenced he

the

waiver

Handberry, Handberry

understood

ramifications.

stated, under oath, that he understood the appeal waiver, and there is no suggestion that he was under the influence of drugs or alcohol at the time of the Rule 11 colloquy. In addition,

Handberry had three years of college education, and his attorney indicated that he had no difficulty communicating with him. On appeal, Handberry does not contest any of these facts, and, accordingly, we agree with the Government that this issue, which relates to Handberry's guideline sentence and does 15

not involve any of the exceptions discussed in General or Marin, is clearly covered by the appellate waiver.

III. For the foregoing reasons, we affirm Handberry's

conviction and sentence.

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

16