U.S. v. Cherry

• Decision Date: 11 April 1995
• Docket Number: No. 94-20456,94-20456
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Renard Leon CHERRY, a/k/a Jimmy Dean, In Custody, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 338

50 F.3d 338

UNITED STATES of America, Plaintiff-Appellee, v. Renard Leon CHERRY, a/k/a Jimmy Dean, In Custody, Defendant-Appellant.

No. 94-20456.

United States Court of Appeals Fifth Circuit.

April 11, 1995.

Stanley G. Schneider, Houston, TX, for appellant.

Katherine L. Haden, Paula Offenhauser, Asst. U.S. Attys., Gaynell Griffin Jones, U.S. Atty., Houston, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, KING and GARWOOD, Circuit Judges.

WISDOM, Circuit Judge.

The defendant-appellant, Remard Leon Cherry, alias "Jimmy Dean", appeals from his conviction of conspiracy to possess with the intent to distribute crack cocaine, of possession with the intent to distribute crack cocaine, and of use of a firearm during the commission of a drug trafficking crime. We affirm the defendant's conviction and sentence.

I

Following a traffic stop in October 1993, Constable Craig Lawson of the Montgomery County, Texas police department arrested Bervick Williams, and seized from him a marijuana-laced cigar and half an ounce of crack cocaine. Williams told Lawson that he had purchased the crack cocaine that morning from "Jimmy Dean" at 5900 Selinsky Street # 99, in Houston, Texas.

In cooperation with the Montgomery County police, Williams made a controlled delivery of the crack cocaine to a man in Livingston, Texas. By written statement, Williams said that he had purchased the crack cocaine from Jimmy Dean, a Houston crack dealer. Williams said he had known Jimmy Dean for about two and a half years, that Jimmy Dean sells crack cocaine, and that he bought crack cocaine from Jimmy Dean nearly every day. Williams said that he had seen as much as a kilo of cocaine in a bowl in Jimmy Dean's kitchen cabinet. Williams said that Jimmy Dean owned a black Chevrolet Stepside truck, two Lexus, a Jeep Cherokee, and a blue five-liter-engine Mustang. Williams also said that Jimmy Dean kept a Rottweiller in the apartment to guard the cocaine. In addition, Williams orally described Jimmy Dean as being 26 or 27 years old, 5'9" to 5'10", around 275 pounds, medium complexioned, with a short afro and a gold tooth. Williams also said that he had seen about a kilo of cocaine at 5900 Selinsky # 99 that day, October 13.

Officer Lawson relayed this information to Officer Jimmy Turpin, a Houston Narcotics Officer. Officer Turpin went to 5900 Selinsky Street and found the building to look as Williams had described it. Apartment records listed Remard Leon Cherry as the lessee of 5900 Selinsky Street # 99. A criminal history report on "Jimmy Dean" from the Houston Police Department ("HPD") computer revealed that Remard Leon Cherry used "Jimmy Dean" as an alias and had occupied at one time the apartment at 5900 Selinsky Street # 79.

Based on this information and his own observations, Officer Turpin drafted a search warrant for the apartment, and a magistrate signed the warrant on October 14, 1993. Following the signing of the warrant, Houston narcotics officers placed the apartment on surveillance. In the afternoon of October 14, 1993, one of the officers saw a black Chevrolet Stepside truck arrive at the apartment complex. An African-American male entered apartment # 99 with a key, and five minutes later left the apartment in the truck. Officers followed the truck to various locations. At one of the stops, officers were able to observe the driver and found his physical appearance similar to the description given by Williams to Officer Lawson. The defendant eventually went to 8601 Broadway, and entered apartment # 4247. Parked outside the apartment was a blue five-liter-engine Mustang. After five minutes, the defendant stepped out of the apartment, appeared to roll a marijuana cigarette, and went back to the apartment. One minute later he left the apartment holding what looked like a cigar. He drove away, and officers stopped the truck as it left the apartment complex. After the officers discovered a marijuana cigar on the floorboard of the truck, they arrested Cherry, read him his Miranda rights, and he waived his Miranda rights.

The officers took the defendant to 5900 Selinsky # 99 and opened the door with the defendant's key. The defendant tied up the Rottweiller, and the officers seized from the apartment a total of 134.9 grams of crack cocaine and 4.5 kilos of cocaine, of which 3.2 kilos were pure cocaine.

The defendant entered a plea of not guilty and filed a motion to suppress the evidence seized from 5900 Selinsky # 99, on the ground that the search warrant was invalid. The defendant argued that the warrant affidavit contained misrepresentations and that Officer Turpin intentionally had misled the court by misdescribing the defendant's physical characteristics and his place of residence.

The district court concluded that the search warrant was valid and denied the defendant's motion to suppress. So that he could appeal the ruling on the motion to suppress, the defendant agreed to waive a jury and to have his case tried on stipulated facts. The court found Cherry guilty of conspiracy to possess and distribute crack cocaine, of possession with intent to distribute crack cocaine, and of use of a firearm during the commission of a drug trafficking crime. Before sentencing, the defendant filed an objection to the presentencing report, arguing that the Sentencing Guidelines' penalty scheme violated his Fifth Amendment right to equal protection of the laws. The court overruled the objection and sentenced him in the middle of the Guideline range to 166 months imprisonment on counts one and two to run concurrently, five years imprisonment to run consecutively on count three, and five years of supervised release. The defendant appeals his conviction and sentence.

II

The defendant raises two arguments on appeal. First, the defendant argues that the search warrant was invalid and that the district court erred in denying his motion to suppress the evidence. Second, the defendant argues that the provisions of 21 U.S.C. Sec. 841(a)(1) and Sec. 2D1.1 of the Sentencing Guidelines violate the Fifth Amendment's guarantee of equal protection because the provisions punish far more severely the possession of crack cocaine than the possession of ordinary cocaine. We affirm the defendant's conviction and sentence.

A

The defendant's first argument on appeal challenges the validity of the search warrant and contends that the district court erred in denying the defendant's motion to suppress the evidence. The defendant argues that the affidavit supporting the warrant to search 5900 Selinsky # 99 contained intentional misrepresentations. The defendant argues that the affiant, with the intent to deceive the court, intentionally misrepresented the defendant's physical appearance and home address. The district court concluded that the challenged statements were not misrepresentations and denied the motion to suppress. We agree with the conclusion of the district court.

In determining whether a search warrant establishes probable cause, a court must disregard any intentional or reckless misrepresentations made by the affiant in the affidavit. ¹ A statement in a warrant affidavit is not false, however, merely because it characterizes or summarizes facts in a particular way; if a statement can be read as true, it is not a misrepresentation. ² Further, a search warrant is valid, even if it contains a misrepresentation, if after striking the misrepresentation, there remains sufficient content to support a finding of probable cause. ³ Probable cause is evaluated in the totality of the circumstances. ⁴

The defendant argues that the affidavit contains misrepresentations, and that if the misrepresentations were deleted from the affidavit, the affidavit would not have provided probable cause to support the warrant to search 5900 Selinsky # 99. The defendant's argument rests on discrepancies between Officer Turpin's affidavit and the HPD criminal history report regarding the defendant's physical appearance and his residence address.

Officer Turpin's affidavit describes the defendant as an African-American male, 26 to 27 years old, 5'9" to 5'10" tall, 275 to 280 pounds, medium complexioned, with a short afro and one gold tooth. The HPD criminal history report describes the defendant as an African-American male born in 1970, 6' tall, 185 pounds, with a medium complexion and black hair. In reality, the defendant has three gold teeth.

Although the informant misestimated Cherry's height and weight, the informant correctly estimated and described the defendant in many other respects. Williams correctly stated that Cherry is an African-American male, has a gold tooth, is in his mid-twenties, has short black hair, and uses the alias "Jimmy Dean". Williams correctly described the apartment at 5900 Selinsky and all of the cars and trucks that the police observed during their surveillance. We conclude that the informant's misestimation of the defendant's physical appearance is not an intentional misrepresentation.

The second alleged misrepresentation stems from a discrepancy between the affidavit and the HPD criminal history report's description of the defendant's home address. Officer Turpin's affidavit states the defendant's home address as 5900 Selinsky # 79, and the defendant argues that this is intentionally deceptive because that was not his home address at the time the warrant was issued. The HPD criminal history report listed the defendant's home addresses as 5900 Selinsky # 118 on July 4, 1989, 5901 Selinsky # 79 on February 25, 1990, and 5900 Selinsky in October and November 1990. The district court concluded that this discrepancy was not deceptive, and we agree. We can read Officer Turpin's statement as true as a way to link the defendant to the location of 5900 Selinsky. Accordingly, we conclude that neither the physical description of the defendant's height and weight nor the location of...