U.S. v. Eura

• Decision Date: 24 February 2006
• Docket Number: No. 05-4533.,No. 05-4437.,05-4437.,05-4533.
• Citation: 440 F.3d 625
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent Carnelius EURA, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Vincent Carnelius Eura, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 625

440 F.3d 625

UNITED STATES of America, Plaintiff-Appellee, v. Vincent Carnelius EURA, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Vincent Carnelius Eura, Defendant-Appellee.

No. 05-4437.

No. 05-4533.

United States Court of Appeals, Fourth Circuit.

Argued December 2, 2005.

Decided February 24, 2006.

ARGUED: Craig Weston Sampson, Richmond, Virginia, for Appellant/Cross-Appellee. Michael James Elston, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee/Cross-Appellant. ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellee/Cross-Appellant.

Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge WILKINSON joined. Judge MICHAEL wrote a separate opinion concurring in the judgment and concurring in part.

OPINION

HAMILTON, Senior Circuit Judge:

Under the United States Sentencing Guidelines, a defendant who deals five grams of crack cocaine faces the same sentence as a defendant who deals five hundred grams of powder cocaine. This disparity is commonly referred to as the "100:1 ratio." Congress adopted the 100:1 crack cocaine/powder cocaine ratio in 1986, thereby setting mandatory minimum sentences based on the quantity of cocaine, in crack or powder form.¹ In 1987, the Sentencing Commission, following Congress' lead, adopted the same ratio, when it fashioned the Drug Quantity Table found at USSG § 2D1.1(c). Under the Guidelines, the Drug Quantity Table determines a defendant's offense level, which ultimately controls the sentencing range under the Guidelines. In 1995, 1997, and most recently in 2002, Congress declined to entertain the Commission's entreaties to narrow the ratio.

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the mandatory Guidelines scheme providing for sentence enhancements based on facts found by the sentencing court violated the Sixth Amendment. Id. at 755-56 (Stevens, J., opinion for the Court). The Court remedied the constitutional violation by severing and excising the statutory provisions which mandated sentencing and appellate review under the Guidelines, thus making the Guidelines advisory. Id. at 756-57 (Breyer, J., opinion for the Court).

The principal question presented in this appeal is whether a district court in the post-Booker world can vary from the advisory sentencing range under the Guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder cocaine ratio chosen by Congress. For the reasons stated below, we conclude a court cannot vary from the sentencing range in such a manner.

I

A

On May 3, 2004, agents of the Drug Enforcement Administration (DEA) applied for and obtained a search warrant for 353 Riverside Manor Boulevard in Fredericksburg, Virginia. The search warrant application in large part was based on information provided by a cooperating source. The source, whose information had led to the arrest of at least one other drug trafficker, told the agents that he had been buying crack cocaine from Vincent Eura since 1996 and had purchased crack cocaine from him as recently as March 2004.² Most of these purchases had occurred at Eura's residence. In a recorded telephone conversation on May 3, 2004, the source asked Eura if he had any crack cocaine and Eura responded that he was "straight." (J.A. 28). According to the source, Eura had used the term "straight" in the past to indicate that he had crack cocaine to sell. (J.A. 28). In a later conversation, the source and Eura arranged to meet that evening at Eura's residence.

Rather than allowing the source to buy crack cocaine from Eura, the DEA agents obtained and executed a search warrant for Eura's home. The search occurred at approximately 9:30 p.m. on May 3, 2004. During the search, Eura was detained and placed in handcuffs for officer safety.

The search of Eura's home yielded several automatic weapons but no drugs. Eura told the agents that the weapons were his. An unidentified woman at the residence told the DEA agents that a BMW and a Mitsubishi Diamante parked on the street belonged to Eura. A license plate check with the Virginia Department of Motor Vehicles (DMV) verified that the two automobiles were registered to Eura.

Special Agent William Harding testified that he spoke with Eura about the automobiles and asked for consent to search them. Eura refused. Agent Harding then asked a local K-9 unit to walk around the two automobiles.

A drug detection dog alerted to Eura's Mitsubishi Diamante, indicating the presence of drugs. The DEA agents then opened the automobile and the dog alerted to the center console area. With the help of the dog, the agents recovered eleven grams of crack cocaine and 26.6 grams of MDA (ecstacy) from the center console armrest. A further search of the automobile resulted in the discovery of a loaded firearm in the glove compartment.

B

On July 19, 2004, Eura was charged in a three-count second superseding indictment with conspiring to possess with intent to distribute fifty grams or more of crack cocaine, 21 U.S.C. §§ 841(b)(1)(A) and 846 (Count One), possession with intent to distribute five grams or more of crack cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count Two), and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (Count Three).

Prior to trial, Eura moved to suppress the evidence obtained during the warrantless search of his Mitsubishi Diamante. The district court denied the motion.

Following a trial, Eura was convicted on Counts Two and Three, but acquitted on Count One. The jury found that Eura's conviction on Count Two involved between five and twenty grams of crack cocaine. On April 15, 2005, he was sentenced to 120 months' imprisonment, consisting of a sixty-month sentence on Count Two and a sixty-month consecutive sentence on Count Three. Eura noted a timely appeal, challenging his convictions. The government filed a timely cross-appeal, challenging Eura's sentence.

II

In his appeal, Eura contends that the warrantless search of his Mitsubishi Diamante violated his rights guaranteed by the Fourth Amendment. More specifically, Eura contends that, while the search of his home was permissible pursuant to the search warrant, once the DEA agents found no drugs in his home, the subsequent K-9 sniff of his automobiles was not permissible under the Fourth Amendment.

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A K-9 sniff is not a search within the meaning of the Fourth Amendment and, thus, neither probable cause nor a warrant is required. United States v. Place, 462 U.S. 696, 706-07, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). However, "[r]easonable suspicion" is required for the temporary seizure of the vehicle and any occupants that are necessary to facilitate a K-9 sniff of the exterior of a vehicle. United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004).

The standard of "reasonable suspicion" is not "readily, or even usefully, reduced to a neat set of legal rules, but, rather, entails common sense, nontechnical conceptions that deal with factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act." Id. The reasonable suspicion standard, like the probable cause standard, is a fluid concept which takes its substantive content from the particular context in which the standard is being assessed. Id.

The reasonable suspicion standard "is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). However, under the reasonable suspicion standard, "a minimal level of objective justification" for the police action is required. Id.

According to Eura, once the DEA agents failed to discover drugs in his home, the only reasonable conclusions were that the confidential source was unreliable and that Eura was not a drug dealer, and, consequently, the agents were required under the Fourth Amendment to leave him "in peace." Appellant's Br. at 9.

Eura's argument founders for the simple reason that the absence of drugs in his home is of little significance in the reasonable suspicion analysis. On the one hand, the presence of drugs in Eura's home certainly would have provided a reasonable basis for the DEA agents to believe that further evidence of drug dealing would be found in Eura's automobiles. Common sense tells us that drug dealers often transport drugs and other items related to drug trafficking in automobiles, as do other innumerable cases in which drug dealers have been caught transporting drugs in automobiles. Thus, the presence of drugs in Eura's home would have provided a basis to order the K-9 sniff of the BMW and the Mitsubishi Diamante. On the other hand, the agents' failure to find drugs in Eura's home understandably meant little, if anything, to the agents. The recorded phone conversations and other relevant evidence made it clear that a drug transaction at the home was imminent, making the presence of drugs in a nearby place under Eura's control likely. Consequently, the agents' failure to find drugs in Eura's home did not prevent the agents from ordering the K-9 sniff of the automobiles.

We are not suggesting that a search of a home for drugs pursuant to a search warrant necessarily permits a K-9 sniff of the home occupant's automobiles. We are holding only that the following facts provided reasonable suspicion for the K-9 sniff in this case: (1) a confidential source informed the DEA agents he had been...