UNITED STATES COURT OF APPEALS for the Fifth Circuit
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No. 92-3186 _____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CLINTON HOWARD,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court for the Eastern District of Louisiana ______________________________________________________ (May 10, 1993)
Before POLITZ, Chief Judge, KING AND DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant, Clinton Howard, appeals his conviction and sentence
imposed after a jury convicted him for possession of cocaine base
with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
We affirm.
Background
On April 9, 1991, special agents with the Bureau of Alcohol,
Tobacco, and Firearms ("BATF") received an anonymous call
concerning drug activity at 618 N. Rocheblave St., New Orleans.
The caller relayed information regarding crack cocaine and heroin
trafficking and illegal possession of firearms by both the
defendant and his brother, Wilson Martin. A computer check
confirmed the tip's information regarding prior criminal convictions of both men. A confidential informant was dispatched
to observe the location. The informant verified drug trafficking
and weapons violations at that address. A search warrant for 618
Rocheblave was executed by BATF and local law enforcement on April
10, 1991.
During the search, Appellant Howard arrived at the residence.
BATF Special Agent Riehl approached and questioned him. Riehl also
observed a gold Lincoln Continental with a temporary plate parked
on the street several houses away. The anonymous tip had described
the car as Howard's, and the confidential informant had observed
the car delivering suspected drugs. Upon question, Howard told
Riehl that he was not driving the Lincoln and that his keys would
not unlock the car. Riehl, however, requested the keys which did
in fact unlock the Lincoln. Although initially he did not object
to Riehl attempting to unlock the car, Howard denied agents
permission to search the car. Rather than search the car at the
scene, Riehl secured the car and obtained a search warrant prior to
conducting a search. The search was conducted two days later and
revealed approximately six grams of crack cocaine, a scale, and a
temporary license plate issued to Howard.
In addition to the statements made to Riehl during the search
of 618 N. Rocheblave, Howard contacted the BATF office prior to the
search of his car and made additional statements. When he picked
up his vehicle, Howard again made an incriminating statement to
Riehl that he had recently acquired some money and was quitting the
drug business because it was not profitable. Howard was not
2 indicted until several days later.
Howard was indicted for possession with intent to distribute
cocaine base. The district court denied his motion to suppress the
items found in his car and his statements made to Special Agent
Riehl. The court also denied a motion to dismiss the indictment
based upon the constitutionality of the statute. A jury found
Howard guilty.
In the presentence investigation report, it was determined
that Howard was a career offender under § 4B1.1 of the Sentencing
Guidelines. Howard objected to this determination, but the judge
adopted the guidelines established in the presentence report. The
judge sentenced Howard to 300 months in prison, four years
supervised release, and a $50 special assessment. Howard appeals.
Discussion
I. Constitutionality of the Statute. Howard argues that 21
U.S.C. § 841 is unconstitutionally vague because it fails to define
cocaine base. This Court has upheld the constitutionality of this
statute in United States v. Thomas.1 Howard submits that because
of unusual scientific testimony in his case by the Government's
forensic chemist, the definition of cocaine base and cocaine
hydrochloride are nearly identical, therefore precedent should not
control in light of evidence which fails to distinguish between the
1 932 F.2d 1085, 1090 (5th Cir. 1991), cert. denied, ---U.S.---, 112 S.Ct. 887 (1992). Thomas distinguishes between cocaine and cocaine base based on the common usage doctrine. See also United States v. Butler, No. 92-1328, 1993 WL 97617 (5th Cir. 1993).
3 two drugs.2
The trial court held the statute constitutional, that the
common usage doctrine articulated in Thomas applied, and that no
other facts peculiar to this case warrant a different result. We
agree.
Howard's argument has been squarely refuted by this and other
circuits.3 This Court has held that cocaine base is a unique
substance which has a specific contemporary common meaning
sufficient to appraise the defendant of the nature of the charge
against him. Thomas, 932 F.2d at 1090. Additionally, the forensic
chemist testified that the tests that she ran established that the
substance found in the car was crack cocaine.4
Howard also claims that the Government chemist's testimony
indicated that the drug found in Howard's car could have been
cocaine, not cocaine base, and therefore, he was entitled to a jury
instruction for a lesser included offense. Federal Rule of
Criminal Procedure 31(c) states that a defendant may be found
guilty of a lesser included offense. Howard argues that under
United States v. Browner,5 he was entitled to a jury instruction on
2 The government's forensic chemist testified that certain tests did not distinguish between cocaine and cocaine base. 3 See, e.g., Thomas, 932 F. 2d at 1090; United States v. Van Hawkins, 899 F. 2d 852, 854 (9th Cir. 1990); United States v. Barnes, 890 F.2d 545, 552 (1st Cir. 1989), cert. denied, 494 U.S. 1019 (1990). 4 "Crack" cocaine is one type of cocaine base. Butler, No. 92- 1328, 1993 WL 97617 (5th Cir. 1993). 5 889 F.2d 549, 550-51 (5th Cir. 1989). This Court held that a defendant is entitled to jury instruction on a lesser offense when
4 a lesser offense. He maintains that the elements of possession of
cocaine are a subset of the elements of possession of cocaine base.
Therefore, he argues that the trial court erred in refusing to
instruct the jury that possession with intent to distribute cocaine
was a lesser included offense. This argument misses the mark.
The indictment did not track the statute. It did not charge
possession of a controlled substance. See 21 U.S.C. § 841 (1988).
It charged possession of cocaine base. Therefore, if evidence had
been presented that Howard possessed cocaine hydrochloride and not
cocaine base, and if the jury had believed that evidence, then it
would not have convicted. Because the indictment was narrowly
drawn, Howard was not entitled to any other instruction.
II. Career Offender. Howard contends that he was incorrectly
classified as a career offender. He concedes that he has two prior
felony convictions as the guidelines require, however, he claims
that the convictions were invalid for purposes of classification as
a career criminal because he did not enter a valid guilty plea. He
argues that the record in the state case fails to indicate that he
knowingly waived his right to a trial by jury as required under
Boykin v. Alabama, 395 U.S. 238 (1969).
In Louisiana state court in 1972, Howard plead guilty to three
armed robberies, and the record indicates that he was advised of
his "constitutional rights" but not specifically that he was
the elements of the lesser offense are a subset of the elements of the charged offense and evidence at trial is such that the jury could rationally find defendant guilty of the lesser offense, yet acquit him of the greater.
5 advised of his right to a trial by jury. The state later attempted
to prosecute Howard as a multiple offender, but withdrew the
multiple offender bill when Howard contended the priors were
constitutionally insufficient to sustain an enhanced sentence as a
multiple offender. These convictions were not, however, ruled
constitutionally invalid. The Louisiana court simply granted the
State's motion to withdraw the bill. Howard concludes that this
Court should not count the convictions because the state did not
consider the pleas constitutionally valid.
The district court rejected Howard's contention holding that:
(1) Howard was advised of his constitutional rights, (2) this Court
is not bound by a decision of the state court regarding dismissal
of the multiple offender bill,6 and (3) Howard failed to meet his
burden of proof. We agree.
Section 4B1.1 of the Sentencing Guidelines requires that the
defendant have at least two prior convictions of either a
controlled substance offense or a violent crime to be classified as
a career criminal. U.S.S.G. § 4B1.1 (Nov. 1, 1992). Sentencing
Guideline § 4A1.2 Commentary, Application Note 6 disallows the use
of invalidated convictions. Note No. 4 to § 4B1.2 states that the
provisions of § 4A1.2 are applicable to the counting of convictions
under § 4B1.1. See United States v. Marshall, 910 F.2d 1241, 1245
(5th Cir. 1990), cert. denied, ---U.S.---, 111 S.Ct. 976 (1991).
The burden of proving the constitutional invalidity of a prior
6 The court concluded that the requirements for a valid conviction under Louisiana law were more stringent than that required under Boykin.
6 conviction rests on the defendant. United States v. Newman, 912
F.2d 1119 (9th Cir. 1990); see U.S.S.G. § 4A1.2, comment. (n.6)
(Nov. 1, 1992); United States v. Canales, 960 F.2d 1311, 1315 (5th
Cir. 1992).
This court will uphold a sentence unless it was imposed in
violation of law; imposed as a result of an incorrect application
of the sentencing guidelines; or outside the range of the
applicable sentencing guideline and is unreasonable. United States
v. Buenrostro, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied,
495 U.S. 923 (1990) (citations omitted). Application of the
guidelines is a question of law subject to de novo review. United
States v. Garcia, 962 F.2d 479, 480-81 (5th Cir.); cert. denied,
113 S.Ct. 293 (1992). Factual findings by the trial court are
reviewed for clear error. Id. Therefore, whether a prior
conviction is covered under the sentencing guidelines is also
reviewed de novo, while factual matters concerning the prior
conviction are reviewed for clear error. Newman, 912 F.2d at 1123.
The voluntariness of a guilty plea is a question of law reviewed de
novo. Marshall v. Lonberger, 459 U.S. 422, 431 (1983).
Because Appellant's previous convictions have never been ruled
constitutionally invalid, the district court had the discretion to
allow or disallow his challenge to these prior convictions at
sentencing.7 The district court allowed Howard to challenge these
7 United States v. Canales, 960 F.2d 1311, 1315 (5th Cir. 1992); U.S.S.G. § 4A1.2, comment. (n.6) (Nov. 1, 1992); see also United States v. Hoffman, 982 F.2d 187, 191 (6th Cir. 1992); United States v. Davenport, 884 F.2d 121 (4th Cir. 1989).
7 prior convictions. We conclude after a careful review of the
record that the court did not err in determining that Howard had
not met his burden of proof.
Under Boykin, the only federal requirement is that a plea be
entered knowingly and voluntarily. Boykin, 395 U.S. at 242.
Boykin does not mandate any specific rule of criminal proceeding.
McChesney v. Henderson, 482 F.2d 1101, 1106 (5th Cir. 1973), cert.
denied, 414 U.S. 1146 (1974). The state court decisions cited by
Howard are not controlling, and he cites no federal authority for
the same proposition. Nothing in the record indicates that Howard
was not fully aware of the rights that he was waiving. The record
states that Howard was advised of his "constitutional rights." The
omission on the record of a specific statement that he was advised
of his right to a jury trial is insufficient to carry Howard's
burden.
Howard also objects to the use of a manslaughter conviction in
computing that he is a career offender because the conviction is
currently on appeal in the state appellate court. The district
court properly rejected this argument based on guideline §
4A1.2(1).
III. Motion to Suppress. Howard contests the denial of his
motion to suppress the contents seized from his vehicle and the
statements he made to BATF agents. BATF seized six grams of crack
cocaine upon searching Howard's Lincoln pursuant to a search
warrant. Howard made incriminating statements during his initial
contact with Special Agent Riehl, later over the phone to BATF, and
8 again when he picked up his vehicle from BATF. Howard opposes the
ruling on a number of grounds.
First, Howard argues that the initial statements made to Riehl
during the search of 618 N. Rocheblave were made while in police
custody and that he was never informed of his Miranda8 rights.
Although Howard was told several times that he was not under
arrest, he contends that during the search of the residence, he was
detained against his will. Therefore, he argues that the
statements made at that time were illegally obtained and should
have been suppressed. He also argues that he was arrested without
probable cause.
The defendant's Fifth Amendment right against self-
incrimination does not attach until custodial interrogation has
begun. A person in custody must, prior to interrogation, be
clearly informed of his right to remain silent and his right to
counsel during questioning. Miranda, 384 U.S. at 437. Law
enforcement officials, however, are not required to administer the
Miranda warning to everyone they question. Oregon v. Mathiason,
429 U.S. 492, 495 (1977). More than an intimidating environment is
required. Some significant restraint of freedom of movement must
have occurred. United States v. Jimenez, 602 F.2d 139 (7th Cir.
1979). The police must curtail the suspect's freedom "to a degree
associated with formal arrest." Berkemer v. McCarty, 468 U.S. 420,
440 (1984) (citation omitted); United States v. Collins, 972 F.2d
1385, 1404 (5th Cir. 1992), cert. denied, 61 U.S.L.W. 3682 (1993).
8 Miranda v. Arizona, 384 U.S. 436 (1966).
9 The trial court held that Howard was not in custody at the
time any of the self incriminating statements were made. The court
based its ruling on Special Agent Riehl's version of the events.9
Howard admitted that he was specifically told that he was not under
arrest on April 10th. Although he was told to stay put while the
search was taking place, the trial court held that this was not a
condition associated with formal arrest. See Jimenez, 602 F.2d at
144; Berkemer, 468 U.S. at 440. The court correctly concluded that
Howard was not entitled to Miranda warnings before Riehl questioned
him during the search on April 10th. We hold that the statements
made during the search of 618 N. Rocheblave were properly admitted
into evidence.
Howard also argues that the statements made to Special Agent
Riehl at the time he picked up his car from BATF violated his Fifth
and Sixth Amendment rights. This argument is without merit. No
judicial proceeding had been initiated against Howard, therefore,
he had no right to counsel under the Sixth Amendment. Michigan v.
Jackson, 475 U.S. 625 (1986); Brewer v. Williams, 430 U.S. 387, 398
(1977). As to the violation of his Fifth amendment rights, nothing
in the record indicates that Howard's statements were anything
other than completely voluntary. See Miranda, 384 U.S. at 444.
Next, Howard contends that the search of the Lincoln was
illegal because the search warrant was illegal and no probable
cause existed to search the car at the time it was seized. Howard
9 The judge discredited the testimony of Howard's witnesses as no one seemed to be able to get the story straight. Howard does not challenge this finding by the court.
10 complains that the search warrant was defective because it depended
upon an informant whose reliability was unproven. Although BATF
verified some of the information provided by the caller, Howard
contends these efforts still fell short of establishing probable
cause.10 He contends that the warrant contained merely conclusory
language regarding the reliability of the confidential informant,
and that evidence at the suppression hearing indicated that the
informant was in fact not a proven reliable confidential informant.
He contends that because there was no independent verifiable fact
that the informant was reliable, the warrant was invalid.
The trial court rejected Howard's argument questioning the
prior value of the confidential informant. The court held that the
warrant was supported by probable cause, but that even if it was
not, the evidence should not be excluded because it was obtained by
officers who acted in a good faith reliance on the technical
sufficiency of the search warrant.11 We agree.
Warrantless searches of vehicles are permitted when probable
cause exists to believe that the vehicle contains contraband.
Colorado v. Bannister, 449 U.S. 1 (1980). The police may search
the car without a warrant on the spot where it is stopped or after
10 A similar affidavit was challenged by Howard's brother, Wilson Martin, and was upheld on appeal by this Court in an unpublished opinion. Howard contends that his connection with the information in the affidavit is more attenuated than his brother, therefore our previous opinion should not control. 11 United States v. Leon, 468 U.S. 897, 922 (1984); United States v. Craig, 861 F.2d 818, 820 ( 5th Cir. 1988); United States v. Royal, 972 F.2d 643, 646 (5th Cir. 1992), cert. denied, 113 S.Ct. 1258 (1993).
11 immobilizing it. Chambers v. Maroney, 399 U.S. 42, 51 (1970).
Alternatively, the more cautious approach is to immobilize the
vehicle until a search warrant may be obtained. Id.
In this case, the officers obtained a warrant prior to
conducting their search. Evidence obtained by officers who act in
a good faith reliance on the technical sufficiency of a search
warrant will not be excluded. United States v. Leon, 468 U.S. 897,
922 (1984). Courts in this circuit "should not reach the merits of
the probable cause issue if the decision on the admissibility of
the evidence under the good-faith exception of Leon will resolve
the matter." U.S. v. Craig, 861 F. 2d 818, 820 (5th Cir. 1988).
The only exception to this general rule is when the case involves
a novel issue of law, the resolution of which is "necessary to
guide future action by law enforcement officers and magistrates."
Id. at 820-21. This case involves no novel issues.
In general, a magistrate's issuance of a warrant establishes
that the law enforcement officer has acted in good faith in
conducting the search except in four instances. Leon, 468 U.S. at
922. First, an officer does not act reasonably in relying on a
warrant when the magistrate was mislead by information in the
affidavit that the affiant knew was false or would have known was
false except for his reckless disregard of the truth. Id. at 923.
The exception also does not apply where the issuing magistrate
wholly abandoned his judicial role in issuing the warrant. Next,
a warrant based on an affidavit "so lacking in indicia of probable
cause as to render official belief in its existence entirely
12 unreasonable" is also unreliable. Id. (citations omitted).
Finally, a warrant may be so facially deficient that the executing
officers cannot reasonably presume it to be valid. Id.
Howard spoke with Riehl of his own free will. He voluntarily
gave his car keys to Riehl who then discovered that Howard was
lying about his ownership of the Lincoln. In addition to the
information from the anonymous tip and the confidential informant,
Howard's lies clearly established probable cause to search the
Lincoln at the scene. All of the information obtained through the
caller and the confidential informant was proven truthful. BATF
should not be faulted for using prudence and caution in obtaining
the warrant. Probable cause clearly supported the warrant and it
was executed by officers who acted in good faith reliance on its
technical sufficiency. Royal, 972 F.2d at 646.
Finally, Howard argues that the 2-day delay in the seizure of
his Lincoln and its search violated his Fourth Amendment rights.
He contends that, under United States v. Johns, 469 U.S. 478, 487
(1985), the delay in the completion of the vehicle search was
unreasonable because it adversely affected his possessory interest.
He asserts that such delays have only been excused where there was
insufficient manpower to effect a search and/or the appellant was
in custody,12 or the search was of the car's exterior absent a
privacy interest,13 or the delay was brief and was due to manpower
12 People v. White, 242 N.W.2d 579 (Mich. App. 1976); People v. Gordon, 221 N.W. 2d 600 (Mich. App. 1974). 13 State v. Wong, 486 A.2d 262 (N.H. 1984).
13 restrictions.14 Therefore, he concludes that the delay in this case
was unreasonable and that all evidence seized and statements made
should have been suppressed.
The trial court concluded that the two day delay was not
unreasonable under Johns. The court correctly held that Special
Agent Riehl had probable cause to search the vehicle at the scene
and that he should not be penalized for exercising caution and
obtaining a search warrant.15
United States v. Johns involved a situation in which a vehicle
was seized, and a warrantless search was conducted 3 days later.
The Supreme Court held that the seizure was supported by probable
cause and that the delayed search was not unreasonable. The
Supreme Court also stated in dicta that it might be possible for
one to establish that a delay in the completion of a vehicle search
is unreasonable if it interferes with a privacy or possessory
interest of the owner in violation of the Fourth Amendment. Johns,
469 U.S. at 487. We have already concluded that probable cause
existed to search Howard's vehicle at the time it was seized. And
although Howard sought the return of his vehicle, thus asserting a
possessory interest, we conclude that the 2-day delay in the search
conducted pursuant to valid search warrant was not unreasonable.
Cf. United States v. Place, 462 U.S. 696, 709 (1983).
For the foregoing reasons, the judgment of the district court
14 United States v. Chavis, 880 F.2d 788 (4th Cir. 1989). 15 Chambers v. Maroney, 399 U.S. 42, 51 (1970). The cases cited by Howard are distinguishable because all of the delayed searches took place without the benefit of a warrant.
14 is
AFFIRMED.