U.S. v. Collins

• Decision Date: 20 June 2005
• Docket Number: No. 03-4966.,03-4966.
• Citation: 412 F.3d 515
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Warren COLLINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

412 F.3d 515

UNITED STATES of America, Plaintiff-Appellee, v. Warren COLLINS, Defendant-Appellant.

No. 03-4966.

United States Court of Appeals, Fourth Circuit.

Argued: December 1, 2004.

Decided: June 20, 2005.

COPYRIGHT MATERIAL OMITTED

Sante E. Boninsegna, Jr., Pineville, West Virginia, for Appellant.

John Lanier File, Assistant United States Attorney, Office of the United States Attorney, Beckley, West Virginia, for Appellee.

Kasey Warner, United States Attorney, Beckley, West Virginia, for Appellee.

Before NIEMEYER and MICHAEL, Circuit Judges, and MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge MOON wrote the opinion, in which Judge NIEMEYER and Judge MICHAEL joined.

OPINION

MOON, District Judge.

A jury convicted Warren Collins of conspiracy to distribute cocaine base and possession of cocaine base with the intent to distribute. Collins appeals his convictions, arguing: (1) the district judge erred in denying his motion to suppress; (2) there was insufficient evidence to support his conviction of possession with the intent to distribute; (3) he cannot constitutionally be convicted of conspiracy when his sole co-conspirator James Scott was acquitted; and (4) the district judge erred by sentencing him as a career offender under the Federal Sentencing Guidelines. Finding no merit in Collins's arguments, we affirm his convictions. Further, although we find that the district court committed a plain error under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),¹ when it treated the Sentencing Guidelines as mandatory in calculating Collins's sentence, we determine that Collins has not met his burden of demonstrating that this error affected his substantial rights. Therefore, we affirm Collins's sentence.

On April 3, 2002, undercover officers of the Southern Regional Drug and Violent Crime Task Force were patrolling "The Hill," an area known for drug trafficking in Princeton, West Virginia. The officers noticed a parked vehicle occupied by two men. These two men were James Scott, sitting in the driver's seat of the parked vehicle, and Warren Collins, sitting in the passenger's seat.

As the officers drove by the parked vehicle in an unmarked Beretta, Scott put his arm out the window and motioned for the officers to come over. The officers pulled alongside the parked vehicle. Scott asked the officers, "what do you need?" One of the officers, Detective T.A. Bailey, testified at trial that he took this statement to mean that Scott was offering to sell drugs. The officers then stopped their vehicle. Bailey exited the Beretta and walked toward the driver's side of the parked vehicle. As he began talking with Scott, Bailey observed Collins throw a plastic baggie onto the passenger-side floorboard of the vehicle. Bailey then walked around to the passenger's side of the vehicle, ordered Collins out of the vehicle, and handcuffed him.

Detective Bailey then reached into the vehicle and picked up the baggie from the passenger-side floorboard. The baggie contained a chunk of tan material which appeared to Bailey, based on his training and experience, to be cocaine base. Bailey then arrested Collins. The tan material in the baggie later was determined to be 2.59 grams of cocaine base.

A grand jury charged Collins with possession of cocaine base with the intent to distribute and conspiracy to distribute cocaine base. The grand jury charged Scott only with conspiracy to distribute cocaine base. Prior to the trial, the district court denied Collins's motion to suppress the cocaine base found in the vehicle. Following the trial, a jury convicted Collins of both charges, but acquitted Scott of the conspiracy charge. The district judge sentenced Collins to 216 months of incarceration.

I.

Collins first argues that the district judge erred in denying his motion to suppress. Collins maintains that Officer Bailey seized him by ordering him out of the vehicle and immediately handcuffing him, and that this seizure and the subsequent search of the vehicle violated the Fourth Amendment because the officer lacked probable cause to do so.

When considering a motion to suppress on appeal, we review a district court's factual findings for clear error and its legal determinations de novo. United States v. Perkins, 363 F.3d 317, 320 (4th Cir.2004). Because the district court denied the motion to suppress, we will view the evidence in the light most favorable to the government. Id.

We find that the seizure of Collins and the search of the vehicle did not violate the Fourth Amendment because Officer Bailey had probable cause to believe that a felony was being committed when he ordered Collins out of the vehicle and handcuffed him. United States v. McCraw, 920 F.2d 224, 227 (4th Cir.1990). The officers, who had a combined twenty-seven years of experience as police officers and seven years of experience in narcotics, were patrolling an area known for drug trafficking when they noticed a vehicle occupied by two men parked in front of an empty lot. The officers believed that Scott was offering to sell them drugs when he motioned them over and asked, "what do you need?" Officer Bailey's suspicions increased when he saw Collins throw a plastic baggie onto the floor of the vehicle. Bailey testified at trial that a plastic baggie is a common way to package cocaine in that area. Based on these facts, it was reasonable for Bailey to believe that drug trafficking, a felony, was taking place. Because Bailey had probable cause, he was justified in seizing Collins by ordering him out of the vehicle and handcuffing him. Officer Bailey also was justified by the automobile exception to search the vehicle in order to obtain the baggie from the floorboard, because he had probable cause to believe that the vehicle contained the evidence of a crime and exigent circumstances existed. California v. Carney, 471 U.S. 386, 390-91, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Therefore, we conclude that the district judge was correct in denying Collins's motion to suppress.

II.

Collins next argues that his conviction for possession with the intent to distribute should be reversed because there was insufficient evidence for a reasonable jury to find his guilt beyond a reasonable doubt. To convict a defendant of possession with the intent to distribute, the government must prove: (1) possession of a narcotic controlled substance; (2) knowledge of the possession; and (3) the intent to distribute. United States v. Randall, 171 F.3d 195, 209 (4th Cir.1999). We have said that the intent to distribute can be inferred from a number of factors, including but not limited to: (1) the quantity of the drugs; (2) the packaging; (3) where the drugs are hidden; and (4) the amount of cash seized with the drugs. United States v. Bell, 954 F.2d 232, 235 (4th Cir.1992); United States v. Fisher, 912 F.2d 728, 730 (4th Cir.1990). Because none of these factors applies in this case, Collins argues that there was insufficient evidence of his intent to distribute the cocaine base.

However, when a defendant challenges the sufficiency of the evidence on appeal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Fisher, 912 F.2d at 730. Applying this standard, we conclude that a rational trier of fact could have found Collins guilty of possession of cocaine base with the intent to distribute.

The government presented evidence that two experienced narcotics officers encountered Collins and Scott in a parked vehicle in a high drug-trafficking area. The vehicle was parked in front of an empty lot. Scott motioned the officers over and asked them, "what do you need?" Detective Bailey testified that he took this statement to mean that Scott was offering to sell drugs. The government proved that the other man, Collins, had drugs in his possession. From this evidence, the jury could infer that the two men were acting in concert with the objective of selling drugs—Scott was offering to sell the drugs that Collins had in his possession.

Scott testified that he motioned the police officers over because he mistakenly thought they were his friends, and he said "what do you all want?" when he realized he did not know them. However, the jury was free to discredit his testimony because he was a convicted felon, because his testimony conflicted with that of other witnesses, and because of his obvious bias. The jury could therefore infer that Collins possessed the cocaine base with the intent to distribute it.

There is more evidence of the intent to distribute in this case than in United States v. Fountain, 993 F.2d 1136 (4th Cir.1993), which Collins advances to support his position. In Fountain, we found there was insufficient evidence of possession with the intent to distribute when the police found the defendant standing around in a high drug-trafficking area with three separately packaged baggies of marijuana totaling 2.3 grams in his sock. Fountain, 993 F.2d at 1137-38. Here, the statement of Scott to the police officers provides evidence of the intent to distribute beyond mere evidence of possession of drugs in a high drug-trafficking area, which was all that was present in Fountain.

III.

Collins also argues that we should overturn his conspiracy conviction because he cannot constitutionally be convicted of a conspiracy when his co-conspirator Scott was acquitted. Collins argues that because the same jury that convicted him acquitted his sole co-conspirator of the conspiracy, the inconsistent verdicts cannot stand. The law is established on this point. In United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the Supreme Court held that a defendant is not entitled to a new trial when the jury...