US v. Larry Blevins, No. 08-4238 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4238 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY BLEVINS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cr-00017-1) Submitted: February 4, 2009 Decided: March 6, 2009 Before WILKINSON, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. S. Mason Preston, PRESTON & WEESE, L.C., Lewisburg, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Miller Bushong, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Larry Blevins pled guilty pursuant to a written plea agreement to distribution of U.S.C. § 841(a)(1) (2006). months imprisonment. oxycodone, in violation of 21 Blevins was sentenced to seventy Finding no error, we affirm. On appeal, Blevins contends the district court erred in calculating the quantity of drugs attributable to him. When determining a sentence, district courts must initially calculate the appropriate advisory Guidelines States, 128 S. Ct. 586, 596 (2007). range. Gall v. United The court may consider any relevant and reliable evidence before it, including hearsay, in establishing relevant conduct. F.2d 380, 381 (4th Cir. United States v. Bowman, 926 1991). Indeed, hearsay alone provide sufficiently reliable evidence of drug quantity. can United States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992). The Government has the burden of establishing the quantity of drugs used for evidence. sentencing calculations by a preponderance of the United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006). We review the district determination for clear error. F.3d 456, 461 (4th Cir. court s drug quantity United States v. Kiulin, 360 2004). The district court is not required to precisely calculate attributable drug weights, but may instead approximate drug 2 quantity. U.S. Sentencing Guidelines Manual ( USSG ) § 2D1.1, comment. (n.12) (2006) (permitting courts to approximate the quantity of drugs where there has not been a seizure or the amount seized does not properly reflect the scale of the offense). A district court s approximation of the amount of drugs is not clearly erroneous if supported by competent evidence in the record. v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). United States If the district court relies on the drug quantity included in the presentence report, the defendant bears the burden of establishing that the information is incorrect. Id. at 210-11. [M]ere objections [to the presentence report] are insufficient. Id. at 211. The presentence report recommended a drug weight the marijuana equivalent controlled of purchases, 1523.15 substances kilograms, seized during Blevins s residence, and Blevins s statement. the report were five additional based a on seven search of Also included in controlled purchases, information obtained from the confidential informant during a debriefing interview, and the statement of Clifford Roy Johnston--an individual named as an aider and abetter in the offense. At sentencing, counsel argued that the drug weights contained in Blevins s statement were unreliable as a psychological analysis indicated that Blevins was easily led and not competent to waive his rights pursuant to Miranda v. 3 Arizona, 384 U.S. 436 (1966). Counsel likewise argued that the drug weights contained in Johnston s statement were unreliable as Johnston suffered memory loss due to a mining accident. The district court reviewed the statements of Blevins and Johnston, consistent. and determined that they were generally While the court acknowledged that Blevins might suffer from mental health issues, it nevertheless concluded that such issues were insufficient to cause the reliability of his statement credible to be evidence Blevins s questioned. to objections, support and Accordingly, the relevant adopted the the court conduct, presentence found overruled report as that the written. Counsel continues to assert on appeal statements made by Blevins and Johnston are unreliable. The statements conservatively establish that Blevins dealt half an ounce of cocaine base a week for four months, or a total of eight ounces. cocaine base Controlled purchases confirm that Blevins sold from July 2006 to October 2006. Moreover, a confidential informant observed approximately 7.5 grams, or a little more Johnston s than residence one-quarter that was ounce, said of to cocaine belong to base at Blevins. Johnston confirmed that he on occasion held cocaine base for Blevins. Based on these facts, the district court cannot be said to have clearly erred in its calculation of drug quantity. 4 Blevins also contends that the district court erred in denying his motion to suppress the search of his residence under State v. Mullens, 650 S.E.2d 169, 190 (W. Va. 2007) (holding West Virginia State Constitution prohibits police from sending informant into another s home to secretly surveillance device without a warrant). use an electronic In his motion, raised for the first time during the sentencing hearing conducted on February 6, 2008, Blevins argued that the search warrant issued in his case was improperly based on surveillance prohibited by Mullens. The district court denied Blevins s motion to suppress as both untimely and without merit. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights occurred prior to the entry of the guilty plea. Henderson, 411 U.S. 258, 267 (1973). that Tollett v. Thus, direct review of an adverse ruling on a [motion to suppress] is available only if the defendant expressly conditional guilty plea. 51, 52 (4th Cir. 1990). preserves that right by entering a United States v. Wiggins, 905 F.2d As Blevins s guilty plea was not Mullens issued on February 28, 2007, more than two months prior to Blevins s guilty plea on May 7, 2007. 5 conditionally entered, and he does not challenge the voluntary and intelligent nature of his plea, he has waived review of the denial of his motion to suppress. In any event, the denying Blevins s motion. prior to the 12(b)(3)(C). district court did not err in A motion to suppress must be made commencement of trial. Fed. R. Crim. P. Failure to timely raise a motion to suppress will generally constitute forfeiture of the issue unless the district court determines relief from the forfeiture is warranted. Fed. R. Crim. P. 12(e); United States v. Ruhe, 191 F.3d 376, 386 (4th Cir. 1999) (referencing Rule 12(f), amended to 12(e) in 2002). A district court s decision on whether or not to permit an untimely suppression motion under Rule 12(e) is reviewed for clear error. Ruhe, 191 F.3d at 385. Since Blevins failed to offer any explanation for his untimeliness, the district court cannot be said to have clearly erred in denying the motion to suppress. Even on the merits, the district court correctly concluded that whether or not a seizure violates state law is irrelevant to federal court. the determination of a motion to suppress in See United States v. Van Metre, 150 F.3d 339, 347 (4th Cir. 1998) (stating relevant inquiry is not whether state law enforcement officer violated state law in securing evidence, but whether Fourth Amendment was violated). 6 Moreover, federal statutory and constitutional law permits officials to place an electronic surveillance device on a consenting informant for the purpose of recording communications with a third-party suspect, even in the absence of a warrant. 18 U.S.C. § 2511(2)(c) (2006); see also United States v. White, 401 U.S. 745, 751-54 (1971) (plurality opinion) (determining warrantless use of electronic equipment by undercover government agent in recording conversation with defendant did not violate Fourth Amendment). Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7
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