United States of America, Plaintiff-appellee, v. Benjamin Wheeler, Defendant-appellant, 918 F.2d 956 (4th Cir. 1990)

Benjamin Wheeler appeals (1) a refusal to grant a motion to suppress, (2) the admission of taped conversations, and (3) the setting of a base offense level. He was charged with and convicted of various narcotics offenses, including conspiracy to distribute and possession with intent to distribute and distribution. Our review of the record satisfies us that the dispute as to Guidelines basis depending on contentions as to assertedly improper treatment of cocaine hydrochloride as crack is resolved against Wheeler since, even if there were some overlapping or double counting, any allowance therefor would not alter the sentence range.

The motion to suppress was properly denied since the contested evidence was seized pursuant to a search warrant based on probable cause. Consent of the confidential informant who participated in the telephone calls validated the resulting tapes as admissible evidence. E.g., United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973).

Wheeler has also sought to appeal convictions based on violations with respect to cocaine rather than with cocaine crack (for which the sentencing may be much more severe). However, the testimony at the sentencing hearing established that, from a price point of view, the determination that cocaine crack was involved was not clearly erroneous.

The judgment, therefore, is accordingly

AFFIRMED.