U.S. v. Cantley

• Citation: 130 F.3d 1371
• Decision Date: 25 November 1997
• Docket Number: No. 96-6290,96-6290
• Parties: 97 CJ C.A.R. 2985 UNITED STATES of America, Plaintiff-Appellee, v. Vernoil CANTLEY, aka Joe Joe Cantley, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1371

130 F.3d 1371

97 CJ C.A.R. 2985

UNITED STATES of America, Plaintiff-Appellee, v. Vernoil CANTLEY, aka Joe Joe Cantley, Defendant-Appellant.

No. 96-6290.

United States Court of Appeals,

Tenth Circuit.

Nov. 25, 1997.

Joseph L. Wells, Oklahoma City, OK, for Defendant-Appellant.

Leslie M. Maye, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with her on the brief), United States Attorney's Office, Oklahoma City, OK, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, and McKAY and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Appellant Vernoil Cantley was convicted of conspiracy to distribute cocaine base ("crack"), in violation of 21 U.S.C. § 846; use of a wire transfer to facilitate possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 843(b); being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); five counts of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); and six counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1).

The Presentence Investigation Report ("PSR") calculated Cantley's base offense level at 38, premised on approximately seven kilograms of cocaine base and 174 grams of marijuana. The PSR recommended the district court apply a two-level enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1) and a four-level enhancement for Cantley's leadership role in the conspiracy pursuant to U.S.S.G. § 3B1.1(a). Based on a total offense level of 44, the district court sentenced Cantley to life imprisonment and five years supervised release on the conspiracy count and each of the possession and distribution counts; to imprisonment for a term of forty-eight months and one year supervised release on the use of a wire transfer to facilitate possession count; and to imprisonment for a term of 120 months and three years supervised release on the felon in possession of a firearm count, all to be served concurrently.

On appeal, Cantley contends the district court erred by (1) denying his motion to suppress certain evidence; (2) sentencing him under the crack cocaine guideline; (3) applying a four-level enhancement for his role as an organizer or leader; and (4) failing to require the government to assume the burden of proof on contested sentencing issues. This court affirms.

A. Motion to Suppress

Cantley argues the district court erred by denying his motion to suppress evidence seized during searches of his residence and the hotel room in which he was arrested.

At the suppression hearing, Cantley's parole officer, Arnold Nelson, testified as to the events surrounding the search of Cantley's residence. While on parole ¹ in March 1992, Cantley tested positive for marijuana use, but parole revocation proceedings were not initiated at that time. On July 26, 1993, Officer Nelson received a telephone call from a DEA agent, who advised him that Cantley was under investigation by both the DEA and Oklahoma Bureau of Narcotics ("OBN") for drug trafficking. That same day, Officer Nelson left messages with two OBN agents to get additional information about the investigation, but they never returned his call.

On August 11, 1993, Officer Nelson received an anonymous telephone call informing him that Cantley was in court that day on a firearms possession charge. He later verified this information with the clerk's office and district attorney's office. Officer Nelson immediately began preparing a parole violation report based on Cantley's arrest for the firearm charge, failure to report the arrest, ² and possession of marijuana based on the March 1992 positive drug test. On August 16, Officer Nelson submitted the violation report to the Department of Corrections Executive Revocation Officer, and on August 25, an arrest warrant was issued.

The day Officer Nelson received the arrest warrant, August 30, he contacted OBN to let them know he was going to execute the warrant. OBN asked Officer Nelson to "sit on it for a while" because they were afraid Cantley would make bond and flee. Officer Nelson then asked OBN to update him on their investigation. Based on the new information he received, Officer Nelson requested and received authorization from his district supervisor to conduct a warrantless search of Cantley's residence.

The next day, August 31, Officer Nelson, along with two OBN agents ³ and four Corrections officers, went to Cantley's residence to conduct the warrantless search. Sharon Cantley, defendant's wife, answered the door, let the officers in, and told them Cantley was not home. The officers requested Ms. Cantley's permission to search the entire residence. When she refused, they went forward with the warrantless search. After the officers confirmed that Cantley was not present, they searched his bedroom and the common areas of the residence. ⁴ Among other things, the officers found crack cocaine, digital scales which tested positive for cocaine, and a loaded pistol.

The district court determined that in light of the information known to Officer Nelson there was a reasonable basis for searching Cantley's residence. Additionally, the district court concluded that each of the requirements for conducting a warrantless search were satisfied. The district court therefore denied Cantley's motion to suppress.

"On appeal from a denial of a motion to suppress, we view the evidence in a light most favorable to the government and accept the district court's findings of historical fact unless clearly erroneous." United States v. Lewis, 71 F.3d 358, 360 (10th Cir.1995); see also United States v. McCarty, 82 F.3d 943, 947 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 257, 136 L.Ed.2d 183 (1996). "The reasonableness of a search and seizure under the Fourth Amendment is a question of law we review de novo." McCarty, 82 F.3d at 947; see also Lewis, 71 F.3d at 360.

The Fourth Amendment protects against unreasonable searches and seizures. See U.S. Const. amend. IV. "Generally, law enforcement officials should conduct searches pursuant to a warrant supported by probable cause." Lewis, 71 F.3d at 361. The Supreme Court, however, has recognized exceptions to the warrant requirement for certain "special needs" of law enforcement, including a state's parole system. See Griffin v. Wisconsin, 483 U.S. 868, 873-75, 107 S.Ct. 3164, 3168-69, 97 L.Ed.2d 709 (1987); see also Lewis, 71 F.3d at 361. Accordingly, a warrantless search of a parolee's residence "will satisfy the Fourth Amendment's reasonableness requirement to the extent parole agents [carry] it out pursuant to state law which itself satisfies the Fourth Amendment's reasonableness requirement." Lewis, 71 F.3d at 361.

According to the Oklahoma Probation and Parole Manual ("Manual") in effect as of the date Cantley's residence was searched, a parole officer was allowed to conduct a warrantless search if four requirements were met and the district supervisor approved the search. See Probation and Parole Manual ch. 3, at 4 (Dec. 1, 1992). The four requirements were:

(a) There are reasonable grounds to believe that the offender is keeping contraband on the property. (b) Failure to search may result in an immediate threat to the public, employees, or offenders. (c) The search is not the result of an assistance request from other law enforcement officers who have been unable to obtain a search warrant. (d) Officers are not authorized to break and enter at an offender's residence ... to conduct a warrantless search.

Id. The Manual also provided that "[s]earches [shall] not invade the privacy of a third party." Id.

In State ex rel. Corgan v. King, 868 P.2d 743 (Okla.Crim.App.1994), the Oklahoma Court of Criminal Appeals considered for the first time what constitutes a "reasonable" warrantless search of a parolee's residence and concluded that a search which complies with the Manual ⁵ is reasonable for Fourth Amendment purposes. See id. at 746. We agree that the prerequisites to a warrantless search of a parolee's residence in Oklahoma comply with the reasonableness requirement of the Fourth Amendment. See Griffin, 483 U.S. at 870-71, 880, 107 S.Ct. at 3166-67, 3172 (holding Wisconsin Supreme Court's interpretation of regulation requiring "reasonable grounds" for warrantless search of probationer's residence satisfies Fourth Amendment reasonableness requirement); Lewis, 71 F.3d at 362 (concluding Utah prerequisites to warrantless search of a parolee's residence satisfies Fourth Amendment reasonableness requirement).

We must next determine whether the officers in this case carried out the search of Cantley's residence in accordance with the Manual. Cantley argues the search did not comply with the Manual because (1) there was no immediate threat; (2) the search was the result of a request from other law enforcement officers; and (3) the officers invaded the privacy of Ms. Cantley. This court concludes the Manual requirements were satisfied.

First, although Cantley apparently concedes there was an immediate threat to the public, employees, or offenders prior to conducting the search, Cantley argues the threat subsided once the officers determined he was not present at the residence. In Corgan, the court determined there was no immediate threat given that the "search was not conducted until almost a month after it was requested and authorized, and more notably, not until after [the defendant] was arrested [at his residence prior to conducting the search]. An 'immediate' threat would have required swifter action." Corgan, 868 P.2d at 747.

In this case, Officer Nelson conducted the search the day after receiving authorization, and, unlike the defendant in Corgan, Cantley was not arrested until approximately two weeks after the search. Given the evidence of Cantley's drug dealings, his recent charge for illegal possession of a firearm, and the fact that he was not yet in custody, we agree with the...