U.S. v. Moreland

• Decision Date: 22 February 2006
• Docket Number: No. 05-4476.,No. 05-4571.,05-4476.,05-4571.
• Citation: 437 F.3d 424
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian A. MORELAND, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Brian A. Moreland, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

437 F.3d 424

UNITED STATES of America, Plaintiff-Appellee, v. Brian A. MORELAND, Defendant-Appellant.

United States of America, Plaintiff-Appellant, v. Brian A. Moreland, Defendant-Appellee.

No. 05-4476.

No. 05-4571.

United States Court of Appeals, Fourth Circuit.

Argued December 2, 2005.

Decided February 22, 2006.

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ARGUED:

Matthew Anthony Victor, Victor, Victor & Helgoe, L.L.P., Charleston, West Virginia, for Appellant/Cross-Appellee. Hunter P. Smith, Jr., Assistant United States Attorney, Office of the United States Attorney, Charleston, West Virginia, for Appellee/Cross-Appellant.

ON BRIEF:

Kasey Warner, United States Attorney, Charleston, West Virginia, for Appellee/Cross-Appellant.

Before WILKINS, Chief Judge, LUTTIG, Circuit Judge, and WALTER D. KELLEY, JR., United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part; vacated and remanded in part by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge LUTTIG and Judge KELLEY joined.

OPINION

WILKINS, Chief Judge.

Brian A. Moreland appeals his convictions on two counts of possession with the intent to distribute cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1999). The Government cross-appeals Moreland's sentence,¹ arguing that the district court acted unreasonably in imposing a sentence of ten years imprisonment—a two-thirds reduction from the bottom of the advisory guideline range. We affirm Moreland's convictions. However, we agree with the Government that the sentence imposed by the district court is unreasonable. We therefore vacate it and remand for resentencing.

I.

The facts, viewed in the light most favorable to the Government, are as follows. At some point prior to July 16, 2004, confidential informant Martin Williamson informed West Virginia law enforcement officers that an individual nicknamed "Bones" would be coming to Williamson's house for the purpose of selling cocaine base. "Bones" arrived at Williamson's home on July 16, but did not stay. Rather, he dropped off Moreland, whom Williamson knew slightly. Moreland's intent was to sell cocaine base, and Williamson invited him to stay at the residence.

Williamson then called State Trooper Anthony Perdue to arrange a controlled purchase of cocaine base. During the afternoon of the 16th, State Trooper Travis Berry arrived at the home in a vehicle driven by Trooper Perdue. Williamson spoke with the officers and then admitted Trooper Berry to the home, where Trooper Berry purchased 5.93 grams of cocaine base from Moreland. Trooper Berry paid for the narcotics with marked bills.

Later that day, Williamson informed the officers that additional cocaine base would shortly be delivered to the house. After surveilling the area for several hours without any such delivery occurring, the officers decided to proceed with an arrest of Moreland. At approximately 2:00 a.m., a group of several officers, including Trooper Perdue, gathered at Williamson's residence.

One of the officers knocked on the door. Without opening it, Williamson asked who was there. Unable to understand the officers' response, he asked again. Finally, Williamson opened the door. At the hearing on Moreland's suppression motion, Williamson testified that the officers were "welcome" to enter his home once he realized who they were. J.A. 31. However, the officers did not explicitly ask for, and Williamson did not explicitly give, consent to a search. The officers instead directed Williamson to stand aside and entered the residence, where they arrested Moreland. At the time of his arrest, Moreland was in possession of 1.92 grams of cocaine base and almost $1,000 in cash, including $420 of the marked currency used for the controlled purchase. Moreland was thereafter charged with two counts of possessing cocaine base with the intent to distribute it.

A jury convicted Moreland of both counts. Thereafter, a presentence report was prepared that recommended sentencing Moreland as a career offender, see United States Sentencing Guidelines Manual, § 4B1.1 (2004), and correctly calculated an advisory guideline range of 360 months to life imprisonment. The district court accepted Moreland's contention that this guideline range "grossly overstate[d][his] prior criminal conduct." J.A. 271. The district court concluded that a 360-month sentence would be unreasonable in light of the circumstances of Moreland's current and prior offenses and the other factors outlined in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.2005). See United States v. Moreland, 366 F.Supp.2d 416, 419-25 (S.D.W.Va.2005). The district court sentenced Moreland to the statutory minimum of ten years imprisonment.

II.

Moreland raises several challenges to his convictions. He maintains that the district court erred in denying his motion to suppress the evidence seized during the post-arrest search; that the court erred in admitting Government Exhibits 1 and 2, the cocaine obtained from Moreland; and that the court should not have allowed lab technician Carrie Kirkpatrick to testify as an expert regarding the identity of the substances obtained from Moreland.² We will address these claims seriatim.

A.

Prior to trial, Moreland moved to suppress the evidence obtained during the post-arrest search, maintaining that the law enforcement officers violated the Fourth Amendment when they entered Williamson's home to arrest Moreland without a search warrant or Williamson's consent. See Steagald v. United States, 451 U.S. 204, 205-06, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (holding that absent exigent circumstances, law enforcement officers must obtain a search warrant or consent prior to entering a home for the purpose of effecting an arrest). We affirm the ruling of the district court.

The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. And, it is well settled that a search conducted without a warrant is per se unreasonable unless it falls within one of the "specifically established and well-delineated exceptions" to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Voluntary consent to a search is such an exception. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

There is no question that consent to search can be implied from a person's words, gestures, or conduct. See, e.g., United States v. Hylton, 349 F.3d 781, 786 (4th Cir.2003) (citing cases). It is the Government's burden, however, to establish the existence of such consent. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). "This burden is heavier where consent is not explicit, since consent is not lightly to be inferred." United States v. Impink, 728 F.2d 1228, 1232 (9th Cir.1984) (internal quotation marks omitted). In determining whether consent to search was freely and voluntarily given, the factfinder must examine the totality of the circumstances surrounding the consent. See Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. In reviewing the denial of a motion to suppress, we review the factual findings of the district court for clear error and its legal conclusions de novo. See United States v. Johnson, 114 F.3d 435, 439 (4th Cir.1997).

The district court relied on United States v. Williams, 106 F.3d 1173 (4th Cir.1997). In Williams, this court found that a confidential informant had implicitly consented to a search of mail addressed to him (and in which he had a reasonable expectation of privacy) when that mail was delivered to a government-controlled post office box at the behest of the confidential informant. See Williams, 106 F.3d at 1177-78. The Williams panel relied on United States v. Kurck, 552 F.2d 1320, 1321 (8th Cir.1977) (per curiam), in which a confidential informant's cooperation with the Secret Service—particularly, his use of government funds to purchase counterfeit money and his agreement to use his vehicle to lead agents to the counterfeiters— established the informant's implied consent to the search of the vehicle.

In light of the facts found by the district court, the denial of the motion to suppress was not error. Testimony at the suppression hearing established that Williamson had a close working relationship with law enforcement and that he had allowed an undercover officer into his home to purchase drugs from Moreland. Moreover, Williamson testified that the officers were "welcome" to enter his home even though they did not ask his permission to do so. Cf. United States v. Albrektsen, 151 F.3d 951, 955 (9th Cir.1998) (concluding that defendant who moved aside from hotel room door did not implicitly consent to a search when the defendant knew that "entry was going to be made with or without permission").

B.

Moreland next challenges the admission of Government Exhibits 1 and 2, which consisted of the cocaine purchased from Moreland and seized from him following his arrest. We conclude that the district court did not abuse its discretion in admitting the exhibits. See United States v. White, 405 F.3d 208, 212 (4th Cir.) (stating standard of review), cert. denied, ___ U.S. ___, 126 S.Ct. 668, 163 L.Ed.2d 539 (2005).

At trial, Trooper Perdue identified Government Exhibit 1 as the 5.93 grams of cocaine base purchased by Trooper Berry and Government Exhibit 2 as the 1.92 grams of cocaine base seized after Moreland's arrest. Subsequently, however, Trooper Berry identified Exhibit 2 as the purchased cocaine base, noting that his initials were on a piece of tape on the packaging. The Government recalled Trooper Berry, who reiterated that the purchased cocaine base was Exhibit 1; he surmised that the packaging had been confused at the lab. Over Moreland's objection, the district court admitted the exhibits into evidence.

We conclude that the district court did not abuse its...