United States v. Eon David, 106 F.3d 392, 4th Cir. (1997)
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Scribd Government DocsUnited States v. Eon David, 106 F.3d 392, 4th Cir. (1997)
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Scribd Government Docs106 F.
3d 392
NOTICE: Fourth Circuit Local Rule 36(c) states that citation
of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Eon DAVID, Defendant-Appellant.
No. 96-4204.
United States Court of Appeals, Fourth Circuit.
Submitted Dec. 31, 1996.
Decided Feb. 10, 1997.
Appeal from the United States District Court for the Middle District of
North Carolina, at Greensboro. Frank W. Bullock, Jr., Chief District
Judge. (CR-95-206)
Louis C. Allen, III, FLOYD, ALLEN & JACOBS, L.L.P., Greensboro,
NC, for Appellant. Walter C. Holton, Jr., United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, NC, for Appellee.
Before WILLIAMS and MICHAEL, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
OPINION
PER CURIAM:
Eon David appeals from the district court's orders 1) denying his motion to
suppress evidence, 2) denying his motion to strike an 18 U.S.C.A. 924(c)(1)
(West Supp.1996) charge from his indictment following the Supreme Court's
decision in Bailey v. United States, 116 S.Ct. 501 (1995), and 3) refusing to
grant him a three-point reduction for acceptance of responsibility under the
Sentencing Guidelines, see United States Sentencing Commission, Guidelines
Manual, 3E1.1 (Nov.1995). We affirm.
2
David first claims that the district court improperly applied the good-faith
exception to the exclusionary rule to a warrant found to be unsupported by
probable cause. We disagree. The warrant at issue was supported by an
affidavit which stated that a tested and reliable confidential informant
personally observed someone in the targeted apartment in possession of crack
cocaine. The source further stated that he was aware that drugs were being sold
from this apartment. We have not been called upon to revisit the district court's
determination of probable cause and therefore decline to give any opinion on
this matter. We do, however, find that this affidavit was sufficient to justify an
objective officer's reasonable reliance in the validity of the warrant. See United
States v. Leon, 468 U.S. 897, 922-23 (1984). Accordingly, we affirm the
district court's application of the goodfaith exception and its subsequent denial
of David's motion to suppress.
Next, David claims that the district court erred in refusing to strike a 924(c)
(1) charge from his indictment following his plea of guilty and the Supreme
Court's decision in Bailey v. United States, 116 S.Ct. 501 (1995). We agree
with David that the circumstances surrounding his arrest do not give rise to a
charge that he "used" a firearm during and in relation to the commission of a
drug trafficking offense.
See Bailey, 116 S.Ct. at 505 (stating that a conviction for "use" of a firearm
under 924(c)(1) requires "evidence sufficient to show an active employment
of the firearm by the defendant"). David, however, was charged with, and pled
guilty to, using or carrying a firearm during and in relation to the commission of
a drug trafficking offense. Although the Bailey court did not expressly address
the interpretation of "carry" under 924(c)(1), we have recently clarified in
light of Bailey what it means to carry a firearm under the statute. See United
States v. Mitchell, No. 95-5792, slip. op. at 7 (4th Cir. Jan. 15, 1997)
(concluding that "the meaning of the term'carry' as used in 924(c)(1) requires
knowing possession and bearing, movement, conveyance, or transportation of
the firearm in some manner"). Under this statutory definition of "carry," it is
clear that David carried a firearm in the post-Bailey sense of that term during
and in relation to the underlying drug offense.* David's assertion to the contrary
is without merit. Accordingly, we affirm the district court's refusal to strike the
924(c)(1) charge from the indictment.
Finally, David challenges the district court's refusal to grant him a three-point
reduction for acceptance of responsibility. We review the district court's
application of the Sentencing Guidelines to the facts under a "due deference"
standard, examining factual determinations for clear error and legal conclusions
de novo. See 18 U.S.C.A. 3742(e) (West Supp.1996); United States v.
Daughtrey, 874 F.2d 213, 217-18 (4th Cir.1989). The district court's statements
essentially suggest its disbelief in David's assertion that he was minimally
involved in the charged offense. Based on our review of the record, we cannot
say that the district court clearly erred. Therefore, we affirm the district court's
refusal to grant the requested reduction.
6
Accordingly, we affirm all of the contested orders at issue in this appeal. We
dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
David pled guilty to drug conspiracy under 21 U.S.C.A. 841(a)(1) (West
1981). There is sufficient evidence to support his plea on this charge
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