US v. Sheik Trice

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:13-cr-00034-GEC-1 Copies to all parties and the district court/agency. [999633530].. [14-4789]

Appeal: 14-4789

Doc: 54

Filed: 08/04/2015

Pg: 1 of 7

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4789

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHEIK NAIEEM TRICE,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Glen E. Conrad, Chief
District Judge. (7:13-cr-00034-GEC-1)

Submitted:

June 29, 2015

Decided:

August 4, 2015

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Wayne D. Inge, LAW OFFICE OF WAYNE D. INGE, Roanoke, Virginia,
for Appellant. Anthony P. Giorno, Acting United States Attorney,
Ashley B. Neese, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4789

Doc: 54

Filed: 08/04/2015

Pg: 2 of 7

PER CURIAM:
Sheik Naieem Trice was convicted of conspiracy to possess
with intent to distribute more than 100 grams of heroin, 21
U.S.C. § 846 (2012), and possession with intent to distribute
heroin, 21 U.S.C. § 841(a)(1).

He was sentenced to 151 months

on each count, to run concurrently.
three issues.

Trice now appeals, raising

We affirm.
I

Trice contends that the district court erred when it denied
his motion to suppress evidence seized from a residence pursuant
to a search warrant.

“In reviewing the denial of a motion to

suppress, we review the district court’s factual findings for
clear error and its legal conclusions de novo.”

United States

v. Green, 740 F.3d 275, 277 (4th Cir.), cert. denied, 135 S. Ct.
207

(2014).

If

the

district

court

denied

the

motion

to

suppress, we construe the evidence in the light most favorable
to the Government.

United States v. Black, 707 F.3d 531, 534

(4th Cir. 2013).
To comport with the Fourth Amendment, a magistrate issuing
a search warrant must find probable cause based on “a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit [supporting the warrant,] . . . there is
a fair probability that contraband or evidence of a crime will
be found in a particular place.”
2

Illinois v. Gates, 462 U.S.

Appeal: 14-4789

Doc: 54

Filed: 08/04/2015

213, 238 (1983).

Pg: 3 of 7

“The probable-cause standard is incapable of

precise definition or quantification into percentages because it
deals

with

probabilities

circumstances.”

and

depends

on

the

totality

of

the

Maryland v. Pringle, 540 U.S. 366, 371 (2003).

“For that reason, in reviewing the sufficiency of a supporting
affidavit, we avoid applying hypertechnical scrutiny.”
Lott,

372

F.3d

marks omitted).

267,

274

(4th

Cir.

2004)

(internal

Owens v.
quotation

We accord great deference to the magistrate’s

probable cause determination.

United States v. Clyburn, 24 F.3d

613, 617 (4th Cir. 1994).
In
warrant,

the

affidavit

Detective

submitted

Kelly

Jennings

in

support
stated

of

that

the
he

search
received

information from a confidential informant (CI) that Trice was
“in possession of heroin, available for sale, and was staying at
the address to be searched, with Morgan Nicole Sander . . . [,]
the main tenant of the residence.”

Jennings stated that the CI

gave him Sander’s name and address and identified her vehicle
and

its

license

plate

number.

Jennings

corroborated

this

information by researching DMV records, showing a photograph of
Sander to the CI, and observing Sander at the residence in the
vehicle described by the CI.

Jennings also observed a male

matching the CI’s description of Trice in Sander’s vehicle.
The CI informed Jennings that Trice would be conducting a
heroin transaction at a certain location at a specific time.
3

Appeal: 14-4789

Doc: 54

Filed: 08/04/2015

Pg: 4 of 7

Trice showed up as forecast and entered a vehicle that arrived
at the location.
were found.

When officers confronted Trice, no narcotics

However, Trice was arrested for attempted robbery.

Jennings then met with the CI, who had recorded a phone
conversation

with

Sander

regarding

Trice’s

arrest.

Jennings

stated in the affidavit that he listened to the phone call, in
which

Sander

stated

that

she

was

afraid

residence because “all that shit is there.”

to

return

to

her

Jennings said that

he believed this was a reference to heroin that Trice had stored
at Sander’s residence.
We conclude that the affidavit established probable cause
to believe that heroin would be located at the Sander residence.
Jennings

corroborated

specifically,
Further,

a

where

practical

the
she

CI’s
lived

and

information
and

what

common-sense

about
car

she

interpretation

Sander-drove.
of

the

recorded conversation between the CI and Sander reasonably would
lead to the conclusion that heroin would be found at the Sander
residence, where Trice, a heroin dealer, was staying.
II
Prior to trial, the Government filed a notice stating its
intention to introduce as Fed. R. Crim. P. 404(b) evidence two
of

Trice’s

possession

prior
with

drug

intent

convictions:
to

distribute

a

2003

marijuana;

conviction for conspiracy to distribute heroin.
4

conviction
and

a

for
2012

Trice filed a

Appeal: 14-4789

Doc: 54

Filed: 08/04/2015

Pg: 5 of 7

motion in limine to exclude the evidence.

After argument, the

court excluded the evidence of the 2003 conviction because it
was

remote

in

time

and

involved

marijuana--not

heroin.

The

court denied the motion as to the heroin conviction.
Trice claims that the district court’s ruling was erroneous
insofar

as

it

related

to

the

2012

heroin

conviction.

“A

district court’s determination of the admissibility of evidence
under [Rule] 404(b) is reviewed for . . . abuse of discretion.”
United States v. Penniegraft, 641 F.3d 566, 574 (4th Cir. 2011).
Rule 404(b) prohibits the admission of evidence of prior
bad acts solely to prove action in conformity therewith.

Such

evidence may be admissible, however, for other purposes, such as
“‘proof

of

knowledge,

motive,
identity,

opportunity,
or

absence

intent,
of

preparation,

mistake

or

plan,

accident.’”

United States v. Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004)
(quoting Rule 404(b)).

For such evidence to be admissible under

the Rule, it must be “(1) relevant to an issue other than the
general character of the defendant; (2) necessary to prove an
element of the charged offense; and (3) reliable.”

Id.

“Evidence sought to be admitted under Rule 404(b) must also
satisfy” Fed. R. Evid. 403.
306, 319 (4th Cir. 2008).
of

evidence

damages

an

that

results

opponent

for

United States v. Siegel, 536 F.3d
“Rule 403 only requires suppression

in

unfair

reasons
5

prejudice--prejudice
other

that

its

that

probative

Appeal: 14-4789

Doc: 54

Filed: 08/04/2015

Pg: 6 of 7

value, . . . and only when that unfair prejudice substantially
outweighs

the

probative

value

of

the

evidence.”

United

States v. Mohr, 318 F.3d 613, 619-20 (4th Cir. 2003) (internal
quotation marks and alteration omitted).
We

hold

that

the

district

court

introduction of the 2012 conviction.

properly

permitted

The evidence was relevant

to an issue other than character because it tended to show that
Trice, as a convicted drug dealer, had knowledge of the drug
trade.

The evidence was necessary to show intent and lack of

mistake.

Further, the evidence was reliable, as it consisted of

a copy of a certified judgment from a New Jersey state court.
Finally,

the

beginning

of

evidence,
a

trial

presented
where

as

there

a

was

stipulation
abundant

at

evidence

the
of

Trice’s drug dealing, was not overly prejudicial.
III
Trice contends that he was improperly found at sentencing
to be a career offender.
the

presentence

Having reviewed the record, including

investigation

report

and

the

sentencing

transcript, we are convinced that Trice had the requisite prior
felony convictions and otherwise qualified as a career offender.
See U.S.S.G. § 4B1.1(a) (2013).
relied

on

certified

judgments

The district court properly
from

New

Jersey

reflecting Trice’s prior felony drug convictions.
error

in

the

court’s

conclusion
6

that

Trice

state

courts

We discern no
was

a

career

Appeal: 14-4789

Doc: 54

offender.
Cir.

Filed: 08/04/2015

Pg: 7 of 7

See United States v. McDowell, 745 F.3d 115, 120 (4th

2014),

cert.

denied,

135

S.

Ct.

942

(2015)

(stating

standard of review).
IV
We affirm the district court’s judgment.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
the

court

are
and

argument would not aid the decisional process.
AFFIRMED

7