U.S. v. Oliver
| Citation | 397 F.3d 369 |
| Decision Date | 02 February 2005 |
| Docket Number | No. 03-2126.,03-2126. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Lee OLIVER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Jeffrey D. Winchester, Jones Day, Columbus, Ohio, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Jeffrey D. Winchester, Jones Day, Columbus, Ohio, for Appellant. Joan E. Meyer, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.
Before: MOORE and GIBBONS, Circuit Judges; MILLS, District Judge.*
Defendant-Appellant David Oliver ("Oliver") appeals his conviction for conspiracy to possess methamphetamine with the intent to distribute. Oliver was arrested after the police executed a search warrant at his residence and discovered methamphetamine. While awaiting trial, Oliver was placed in a drug treatment facility but then left the facility without staff permission. He raises four main issues on appeal: (1) that the district court erred when it denied his motion to suppress evidence found at his residence; (2) that the district court erred in permitting the jury to consider Oliver's flight as evidence of his guilt; (3) that the district court erred in applying a two-level enhancement at sentencing for obstruction of justice based on Oliver's flight from the drug treatment facility; and (4) that the sentence imposed by the district court violated the Sixth Amendment.
For the reasons set forth below, in light of the Supreme Court's decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), we conclude that the district court plainly erred by increasing Oliver's sentence pursuant to the federal sentencing guidelines in violation of the Sixth Amendment. Therefore, we VACATE Oliver's sentence and REMAND for re-sentencing. As to the other errors raised by the defendant, we AFFIRM the district court's judgment.
In 2000 the Kalamazoo Valley Enforcement Team ("KVET"), a police drug unit comprised of various city and county police officers in the Kalamazoo, Michigan area, obtained information that Oliver was involved in the distribution of methamphetamine. Office Sheila Goodell ("Officer Goodell") applied for and received a search warrant for Oliver's residence in Kalamazoo. On February 25, 2001, Officer Goodell and other KVET officers executed the search warrant. Upon arriving at Oliver's residence, the police found the residence occupied by four men: Oliver, his brother, and two of Oliver's friends. The officers handcuffed the four men and had them sit on the living room sofa while the search was executed. During the course of their search, the officers uncovered methamphetamine, drug paraphernalia, and four firearms. Following the search, Oliver was taken into custody and informed that a copy of the search warrant and a tabulation of the property seized would be left at his home.
Oliver was charged with various drug-related offenses and initially placed on pretrial release. His bond was later modified after he tested positive for drug use. On July 16, 2002, as part of this bond modification, Oliver was placed in the Community Alternatives Program ("CAP"), which is a residential halfway house and drug treatment program. Oliver then left CAP without staff permission on September 7, 2002. The police later received information that Oliver was living at his residence in Parchment, Michigan. The police went to the residence, where Oliver's wife answered the door and confirmed that the defendant was there. Oliver then came to the door and was taken into custody.
While at the residence, police officers observed two surveillance cameras on the residence's roof pointed at the home's front and side doors. The government alleges that Oliver admitted to police that the cameras were installed so that he could be aware if police officers were approaching. The government also contends that Oliver admitted to the officers that someone had been making methamphetamine in his home that day and that he had used methamphetamine the day prior to his arrest.
Prior to trial, Oliver filed a motion to suppress the evidence obtained from his Kalamazoo residence. The district court held a suppression hearing on the motion. During the hearing, Oliver testified that during the search he had requested to see the warrant, but that the KVET officers refused to show him a copy of the warrant. As a result, Oliver argued that he was not shown a copy of the search warrant until after the search was completed. Oliver also testified that a copy of the search warrant and a tabulation of the property seized by police was not provided to him until the day after the search was conducted. The government contests this, arguing that a copy of the warrant and the tabulation was left at the defendant's residence following the completion of the search. At the close of the hearing, the district court denied Oliver's motion to suppress based on the court's finding that the officers had a warrant to search the premises and lawfully executed the search of Oliver's home.
A jury trial was then held, and Oliver was convicted of conspiracy to possess methamphetamine with the intent to distribute. During the trial, the district court allowed evidence of Oliver's flight from CAP to be introduced and instructed the jury that it could consider Oliver's flight as evidence of his guilt.
On August 4, 2003, a sentencing hearing was conducted. Oliver objected to the Pre-Sentence Report's recommendation that pursuant to United States Sentencing Guideline ("U.S.S.G.") § 3C1.1 a two-level sentence enhancement be imposed for obstruction of justice based on Oliver's flight from CAP. Oliver alleged that his leaving CAP did not constitute obstruction of justice. The district court rejected this argument and applied the two-level sentence enhancement. As a result, Oliver was sentenced to 180 months' imprisonment and supervised release of five years. Oliver then filed this timely appeal.
On appeal Oliver has raised four claims: (1) that the district court erred in failing to suppress evidence recovered from his residence; (2) that the district court erred in permitting the jury to consider his flight from CAP as evidence of his guilt; (3) that the district court erred in imposing a sentence enhancement because his flight from CAP did not constitute obstruction of justice; and (4) that the district court's sentencing determination was unconstitutional pursuant to the Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___, 2005 WL 50108.
"When reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Hurst, 228 F.3d 751, 756 (6th Cir.2000) (citing United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999)). "A factual finding will only be clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Navarro-Camacho, 186 F.3d at 705. Additionally, when "factual findings rest in large part on credibility determinations, we afford district courts even greater deference." Id. at 707.
Oliver asserts that his motion to suppress ought to have been granted based on alleged violations the Fourth Amendment and Federal Rule of Criminal Procedure 41:(1) that the police failed to obtain a search warrant prior to executing a search of his home; and (2) that, even if a search warrant existed, the police failed to provide Oliver with a copy of the warrant when one was requested. As support for this argument, Oliver points to his own testimony and that of his brother at the suppression hearing in which the two men testified that the officers refused Oliver's request to see a copy of the warrant and made statements suggesting that the officers did not have a warrant. Oliver argues that the logical import of these statements is that the search violated the Fourth Amendment and Rule 41.
We need not address whether Oliver's testimony and that of his brother establishes a violation of Rule 41 or the Fourth Amendment. At the end of the suppression hearing, the district court rejected Oliver's testimony in whole as noncredible. The district court explicitly stated:
This is a classic case of who is to be believed. [Oliver's brother], who fled [during the search], and was trying to warm up while he's inside on the sofa; Mr. David Oliver, who was under the influence of methamphetamine at the time of this incident; Officer Goodell or Officer McGahan. The Court finds that neither of the Oliver brothers are credible in this case. The Court finds, after having carefully observed all four of these witnesses that I'm addressing individually, that the officers are credible, their testimony is consistent, and simply refutes any suggestion whatsoever that there was not a warrant in existence at the time that entry was made and this search was effectuated.
Joint Appendix ("J.A.") at 198-99 (Tr. of Final Pretrial Conf. at 91) (emphasis added). Absent clear error by the district court in its credibility finding, we must consider the facts of the case as asserted by the police officers during the suppression hearing. There is no evidence in the record to suggest the district court clearly erred in finding Oliver's testimony and that of his brother was noncredible. Thus, the district court determined that a warrant was properly obtained prior to the search and provided to Oliver along with a tabulation of the property seized during the search. Given these facts, the search of Oliver's residence therefore did not violate the Fourth Amendment or ...
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