Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1988)

MEMORANDUM^* 

Craig Rogers ("Rogers") appeals his conviction, following a jury trial, for one count each of possession with the intent to distribute Lysergic Acid Diethylamide ("LSD"), 21 U.S.C. § 841(a) (1); possession of hashish, 21 U.S.C. § 844; possession of marijuana, 21 U.S.C. § 844; and possession of psilocyn, 21 U.S.C. § 844. Rogers contends that the district court erred in denying his motions to suppress evidence and to preclude application of mandatory sentencing.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

* At about noon on October 21, 1987, six or seven Drug Enforcement Officers executed a court-authorized search warrant at Rogers' residence and seized numerous controlled substances, including LSD, hashish, marijuana and psilocyn. They also seized various drug distribution paraphernalia including blotter paper, glassware, a funnel, a blacklight, and a drug sale ledger. Rogers was indicted by a grand jury on April 6, 1988.

Rogers' motions to suppress evidence and to preclude application of mandatory sentencing were heard on October 24, 1988, and both were denied. There was conflicting testimony at this hearing. Denial of the motion to suppress appears to be based on the testimony of agent David Donald who testified that he knocked on the unlocked front door and announced "police officer, search warrant". The door came ajar approximately one foot when he knocked. He waited about five seconds and knocked a second time, very loudly. No response was heard to either knock. After another five-second delay, he pushed the open door with enough force that the impact from the doorknob made a hole in the wall behind it. Upon entering the house he found Rogers in the back bedroom with the door closed and loud music being played on the stereo. Rogers was found in possession of over 10 grams of a substance containing between .91% and .28% pure LSD.

On October 28, 1988, after a four day trial, the jury convicted Rogers of possession of LSD with intent to distribute, possession of hashish, possession of marijuana, and possession of psilocyn. The jury found that the weight of the LSD was less than one gram and that the weight of the mixture or substance containing the LSD was 12.47 grams. On December 19, 1988, Rogers was sentenced to ten years of imprisonment for the possession with intent to distribute LSD violation, and one year of imprisonment for each of the other three possession violations, all sentences to run concurrently.

II

Rogers contends that the district court erred in finding that the drug enforcement agents properly complied with the knock-and-announce provisions of 18 U.S.C. § 3109 before entering his home and that sentencing under the enhanced penalty provisions of 21 U.S.C. § 841(b) (1) (A) (v) was improper. We disagree.

* Rogers argues that the search warrant was improperly executed and therefore the evidence obtained in the search should be suppressed. He contends that the officers did not comply with the knock and announce provision of 18 U.S.C. § 3109¹  by failing to knock, or, in the alternative, that even if they did knock, a 10-second wait was not reasonable.

In denying Rogers' motion to suppress, the district court made no written findings of fact.²  Where there are no written findings of fact, the appellate court will uphold the result if there is a reasonable view of the evidence to support it, viewing the evidence in the light most likely to support the district court's decision. United States v. Gomez, 846 F.2d 557, 560 (9th Cir. 1988). The district judge apparently believed agent Donald's version of the facts, and there is no evidence to indicate his conclusion was unreasonable.

There is no set rule governing the amount of time an officer must wait before failure to answer becomes a constructive denial of entry; each case is fact-specific. See, e.g., United States v. Rodriguez, 663 F. Supp. 585 (D.D.C. 1987) (three- to five-second wait after announcement before forcing entry into defendant's home with battering ram insufficient, especially where occupants were probably asleep at 6:30 AM and officers offered no reason for fearing that evidence was likely to be destroyed); United States v. Wysong, 528 F.2d 345, 348 (9th Cir. 1976) (officer's entry of hotel room with pass key after announcement and ten-second wait coupled with officer's concern that defendant might destroy the drugs was reasonable).

Although ten seconds is somewhat short, given the facts of this case it is not unreasonable. The knock took place in the middle of the day, when the occupants would undoubtedly be awake and able to answer verbally or come to the door relatively quickly. The fact that the door was unlocked and came open when agent Donald knocked would also lead him to believe that somebody was home and should have been able to respond.

B

Rogers next contends that he was improperly sentenced under the penalty provision of 21 U.S.C. § 841(b) (1) (A) (v).³  The indictment charged him with possessing over 10 grams of LSD but at trial it was determined that he actually possessed over 10 grams of a substance or mixture containing LSD. His argument is that the indictment controls the range of sentencing. United States v. Crockett, 812 F.2d 626 (10th Cir. 1987). Since the government failed to prove Rogers possessed over 10 grams of pure LSD, as alleged in the indictment, and failed to charge him with possessing over 10 grams of a substance or mixture containing LSD, as proven at trial, it cannot now subject him to the mandatory 10-year minimum sentence.

The government responds that it need not allege in the indictment the quantity of contraband required to trigger the enhanced penalty provisions, since the amount of LSD involved is not an element of the offense and the penalty provisions are wholly separate from the definition of unlawful acts included in 21 U.S.C. § 841(a). United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986). In the alternative, the government argues that even if notice of the enhancement is required, the indictment in the instant case did give Rogers sufficient notice of the possibility of an enhanced sentence if convicted.

In Normandeau we declined to address the issue of whether the indictment must state the quantity of contraband to trigger the enhancement penalty:

It may be that the indictment must allege that more than 1,000 pounds of marijuana was involved before the government may seek enhanced sentences. We need not decide this issue today because the indictment in this case clearly alleged that more than 1,000 pounds was involved.

800 F.2d at 956 and n. 2. For similar reasons, we need not address that issue in the instant case.

We find that Rogers did in fact receive adequate notice of the charges against him and the potential for a 10-year to life sentence. The allegation in the indictment that he possessed "over 10 grams of LSD" made him aware of the application of Sec. 841(b) (1) (A) (v) just as well as stating "over 10 grams of a substance or mixture containing a detectable amount of LSD" would have. "The key question in these inquiries is whether an error or omission in an indictment worked to the prejudice of the accused. If it did not, a conviction will not be reversed merely because a minor or technical deficiency in the indictment is later discovered." (citation omitted) Id. at 958.

C

Rogers argues that the sentencing enhancement violates due process as applied to him because he is not a large volume dealer. While it is true that congressional intent in amending 21 U.S.C. § 841 in 1986 was to focus on "major traffickers,"⁴  Rogers fits squarely within this category as defined by Congress, namely, individuals who possess large quantities of mixtures containing detectable amounts of contraband that have been "cut" with other ingredients and thereby multiplied for sale to others. United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir.), cert. denied, 108 S. Ct. 2829 (1988). The statute is clearly rationally related⁵  to the congressional goal of protecting public health and welfare by implementing stiff and certain penalties for those who violate federal drug laws. Id. at 1177, 1178; U.S. v. Klein, 860 F.2d 1489, 1500-01 (9th Cir. 1988).

Rogers also argues that the sentencing enhancement violates his due process rights because the LSD he possessed was placed in a particular medium for storage, and was thus not readily marketable. This argument lacks merit. There is nothing in the record to show that it was not marketable. In fact, there was testimony by an expert witness that the LSD seized had been diluted specifically so that it could be distributed.

D

Rogers claims that his ten-year sentence is disproportionate to the severity of his crime, relying on Solem v. Helm, 463 U.S. 277 (1983). A sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual. United States v. Washington, 578 F.2d 256, 258 (9th Cir. 1978); United States v. Zavala-Serra, 853 F.2d 1512, 1518 (9th Cir. 1988). Rogers' sentence here was clearly within the limits set by 21 U.S.C. § 841(b) (1) (A)⁶ .

The defendant's conviction is AFFIRMED in all respects.