UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

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 c all

concerning drug activity at 618 N. Rocheblave St., New Orleans.

The caller relayed information regarding crack cocaine and heroin

trafficking and i llegal possession of firearms by both the

defendant and his brother, Wilson Martin. A computer check

confirmed the tip's information regarding prior criminal2

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

t he car as Howard's, and the confidential informant had obser ved

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 a n incriminating statement to

Riehl that he had recently acquired some money and was quitting the

drug business because it was not profitable. Howard was not1 932 F.2d 1085, 1090 (5th Cir. 1991), c er t

. denied

, ---U.S.---,

112 S.Ct. 887 (1992). T homas 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 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 S pecial 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, fou r 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 chem ist, 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 the2 The government's forensic chemist testified that certain tests

did not distinguish between cocaine and cocaine base.

3 S ee, e.g.

, Thomas

, 932 F. 2d at 1090; U nited 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. B utler

, 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 two drugs. 2

The trial court held the statute constitutional, that the

c ommon usage doctrine articulated in T homas 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. T homas

, 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 Governm ent 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 onthe 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 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. S ee 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, how ever, 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 b y 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 "constitu tional rights" but not specifically that he was6 The court concluded that the requirements for a valid conviction

u nder Louisiana law were more stringent than that required un der

Boykin

.

6 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 prio rs 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 multip l e 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. S ee 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 prior7 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 conviction rests on the defendant. U nited 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 out side the range of the

applicable sentencing guideline and is unreasonable. U nited States

v. Buenrostro

, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied

,

495 U.S. 923 (1990) (citations om itted). Application of the

guidelines is a question of law subject to de novo review. U nited

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. I d. Therefore, whether a prior

conviction is covered under the sentencing guidelines is also

reviewed de novo

, while factual m atters concerning the prior

conviction are reviewed for clear error. N ewman

, 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 co nvictions at

sentencing. 7 The district court allowed Howard to challenge these8

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 knowi ngly and voluntarily. B oykin

, 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 righ t 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 guidelin e §

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, and8 Miranda v. Arizona , 384 U.S. 436 (1966).

9 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. Rocheblav e were made while in police

custody and that he was never informed of his M iranda 8 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 w ill. Therefore, he argues that the

statements made at that time were illegally obt ained and should

have been suppressed. He also argues that he was arrested without

probable cause.

The defendant's Fifth Amendment right against selfincrim ination 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. M iranda

, 384 U.S. at 437. Law

enforcement officials, however, are not required to administer the

Miranda warning to everyone t hey question. O regon v. Mathiason

,

429 U.S. 492, 495 (1977). More than an intimidating environment is

required. Some significant restraint of freedom of movement must

have occu rred. U nited 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." B erkemer 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).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 T he trial court held that Howard was not in custody a t 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. S ee 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. M ichigan 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. Howard10 A similar affidavit was challenged by Howard's brother, Wilson

Martin, and was upheld on appea l 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 U nited 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 complains that the search warrant was defective because it depended

upon an informant whose relia bility was unproven. Although BATF

verified some of the information provided by the caller, Howard

contends these efforts still fell sho rt 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.

C olorado v. Bannister , 449 U.S. 1 (1980). The police may search

the car without a warrant on the spot where it is stopped or after12

immobilizing it. C hambers v. Maroney

, 399 U.S. 42, 51 (1970).

Alternatively, the more cautious approach is to imm obilize 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. U nited 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

t he evidence under the good-faith exception of Leon will reso lve

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 resolutio n 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. L eon

, 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. I d. 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 r ender official belief in its existence entirely12 P eople v. White

, 242 N.W.2d 579 (Mich. App. 1976); P eople v.

Gordon , 221 N.W. 2d 600 (Mich. App. 1974).

13 State v. Wong , 486 A.2d 262 (N.H. 1984).

13 unreasonable" is also unreliable. I d. (cit ations 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 disco vered that Howard was

lying about his ownership of the Li ncoln. In addition to the

information from the anonymous tip and the confidential informant,

Howard's lies clearly establish ed probable cause to search the

Lincoln at the scene. All of the information obtained through the

c aller 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 goo d 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 s earch 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 cu stody, 1 2 or the search was of the car's exterior absent a

privacy interest, 13 or the delay was brief and was due to manpower14 United States v. Chavis , 880 F.2d 788 (4th Cir. 1989).

15 C hambers 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 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

unreasona ble under J ohns

. 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 i t might be possible for

one to establish that a delay in the completion of a vehicle search

is unreasonable if i t interferes with a privacy or possessory

interest of the owner in violation of the Fourth Amendment. J ohns

,

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 court15

is

AFFIRMED.