UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4492

SAMUEL BROOKS, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Henry C. Morgan, Jr., District Judge.

(CR-00-3)

Submitted: March 20, 2001

Decided: April 16, 2001

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Thomas W. Carpenter, THOMAS W. CARPENTER, P.C., Newport

News, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Robert E. Bradenham II, Assistant United States Attorney, Norfolk, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Samuel Brooks, Jr., was convicted by a jury of possessing more

than five grams of cocaine base (crack), in violation of 21 U.S.C.A.

§ 844(a) (West 1999). The district court imposed a sentence of sixtythree months imprisonment. Brooks contests the district court’s denial

of his motion to suppress evidence seized from him pursuant to his

arrest on suspicion of assault. He also appeals his sentence, contending, first, that the district court’s application of the cross reference in

U.S. Sentencing Guidelines Manual § 2D2.1(b)(1) (1998), denied him

due process, and, second, that the district court erred in sentencing

him to more than one year imprisonment because the jury did not

determine that he possessed more than five grams of crack. We

affirm. 

Brooks was arrested on July 21, 1999, in the apartment of his girlfriend, Monique Pyatt, after Pyatt called 911 and reported that she had

been assaulted by him. In a search of Brooks’ person incident to the

arrest, police seized 13.11 grams of crack, a loaded 9mm semiautomatic handgun, $2375 in cash, and a pager. Brooks was later charged

in federal court with possession of crack with intent to distribute, 21

U.S.C.A. § 841(a) (West 1999), and carrying a firearm during and in

relation to a drug trafficking crime.* 18 U.S.C.A. § 924(c) (West

2000). 

Brooks moved to suppress the evidence obtained in the search on

the ground that the warrantless arrest was made without probable

cause and the resulting search was unlawful. At the suppression hearing, the arresting officer testified that Pyatt invited the officers who

answered her 911 call into her apartment, stated that her boyfriend

had assaulted her, and indicated that Brooks was her boyfriend and

the father of her child although he did not live in the apartment. The

officer could see bleeding scratches on Pyatt’s face and neck. The

officer testified that he believed he had probable cause to believe that

Brooks had assaulted Pyatt, and that under the circumstances he had

*Brooks was never charged with assault because Pyatt subsequently

refused to cooperate with authorities. 

2 UNITED STATES v. BROOKS
authority to arrest Brooks. Both Pyatt and Brooks testified that

Brooks had not assaulted Pyatt and that Pyatt neither told police that

he had nor invited them into her apartment. The district court found

that the officer’s account was credible, that the arrest was therefore

lawful, and that the evidence seized incident to the arrest was admissible. On appeal, Brooks claims that the evidence seized from his person was inadmissible because the officers had neither a search

warrant nor an arrest warrant, nor probable cause to arrest him. For

the reasons explained below, we find no error in the district court’s

ruling. 

While evidence seized in violation of the Fourth Amendment is

generally inadmissible, United States v. Seidman, 156 F.3d 542, 548

(4th Cir. 1998) (citing Wong Sun v. United States, 371 U.S. 471, 484-

85 (1963)), a lawful custodial arrest for any offense gives the police

authority to conduct a full search of the arrestee’s person. United

States v. Robinson, 414 U.S. 218, 235 (1973). The lawfulness of

arrests by state officers for state offenses is determined by state law,

as long as there is no violation of the federal constitution. Ker v. California, 374 U.S. 23, 37 (1963). Probable cause for a warrantless arrest

is defined as "facts and circumstances within the officer’s knowledge

that are sufficient to warrant a prudent person, or one of reasonable

caution, in believing, in the circumstances shown, that the suspect has

committed, is committing, or is about to commit an offense." United

States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998) (citation omitted).

The determination that particular facts gave rise to probable cause for

an arrest is a legal question reviewed de novo. Id. at 770. The district

court’s factual determinations are reviewed for clear error, id., and its

credibility determinations are not subject to review. United States v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997). 

In Brooks’ case, the district court determined that the officer

believed he had authority to arrest Brooks after Pyatt told him Brooks

was the father of her child and that he had assaulted her, because the

officer could see physical evidence of an attack. Virginia law authorizes an arrest under such conditions. A person alleged to have committed assault and battery against a family or household member may

be arrested without a warrant if the arrest is based on probable cause,

personal observation, or the reasonable complaint of a person who

witnessed the offense. Va. Code Ann. § 19.2-81.3(A) (Michie 2000).

UNITED STATES v. BROOKS 3
A "family or household member" may be a person who has a child

in common with the person making the complaint, whether or not

they are married or have ever resided together. Va. Code Ann. § 16.1-

228(v) (Michie 1999). Therefore, the district court did not err in finding that the officers reasonably believed that they had probable cause

to arrest Brooks. Because Virginia state law authorized an arrest

based on probable cause under these circumstances, the district court

did not abuse its discretion in finding that Brooks’ arrest was lawful

and that the evidence seized in the search incident to the arrest was

admissible. 

At trial, Brooks was acquitted of the two charged offenses—

possession of crack with intent to distribute and a violation of

§ 924(c). He was convicted of the lesser included drug offense of

knowingly possessing a controlled substance in violation of 21

U.S.C.A. § 844(a). For a first drug offense involving simple possession, § 844(a) prescribes a sentence of not more than one year imprisonment unless the drug possessed is more than five grams of crack,

in which case the sentence is five to twenty years imprisonment. The

guideline applicable to a conviction under § 844(a) is USSG § 2D2.1.

However, a cross reference in USSG § 2D2.1(b)(1) directs that, if the

offense involves more than five grams of crack, USSG § 2D1.1

should be applied as though the defendant had been convicted of possession of crack with intent to distribute. Over Brooks’ objections, the

district court applied the cross reference in calculating Brooks’ sentence, thus increasing his base offense level from eight to twenty-six.

The court also made a two-level enhancement under § 2D1.1(b)(1) for

possession of a dangerous weapon during the offense. With an

offense level of twenty-eight and criminal history category I, Brooks’

guideline range was 63-78 months. 

Brooks maintains that the combined operation of § 844(a) and

§ 2D2.1 denied him due process and a fair trial because application

of the cross reference in § 2D2.1(b)(1) negated the jury’s finding that

he was not guilty of possessing crack with intent to distribute, and not

guilty of possessing a firearm in connection with a drug offense. We

disagree. Due process is not violated when the severity of a sentence

is determined by the amount or type of drug possessed. See Chapman

v. United States, 500 U.S. 453, 464-65 (1991). Congress has rationally decided that possession of five grams or more of crack is a seri4 UNITED STATES v. BROOKS
ous offense warranting a more severe sentence than possession of an

equal quantity of other drugs. The cross reference in § 2D2.1(b)

merely implements the requirement of § 844(a) that possession of

more than five grams of crack be severely punished. 

Brooks also asserts that the cross reference is inconsistent with the

statutory scheme and the rest of the guidelines because Congress

intended simple possession of drugs in general to be punished less

severely than possession for distribution. This assertion is belied by

the five-to-twenty-year sentence prescribed in § 844(a) for a first

offense involving simple possession of five or more grams of crack.

With respect to the firearm enhancement under § 2D1.1(b)(1) that

resulted from application of the cross reference, Brooks acknowledges that this Court has upheld the enhancement where it is based

on conduct for which the defendant has been acquitted. See United

States v. Romulus, 949 F.2d 713, 716-17 (4th Cir. 1991). Although

the defendant in Romulus was convicted of possessing crack with

intent to distribute, this distinction is not significant unless application

of the cross reference was error. Because the cross reference was

properly applied, as discussed above, the firearm enhancement was

also correct. 

Last, we find nothing in the jury instruction on the lesser included

offense that could affect Brooks’ sentence in light of Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) (holding that any factor

that increases the statutory maximum sentence, other than a prior conviction, must be submitted to a jury and proved beyond a reasonable

doubt). Because Brooks failed to challenge the jury instructions at

trial, this issue is reviewed for plain error. Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993). Brooks must

show that an error occurred, that the error was plain, and that the error

affected his substantial rights. Olano, 507 U.S. at 732. 

The indictment charged that Brooks possessed five or more grams

of crack with intent to distribute. In Instruction 11, the jurors were

instructed that before they could convict Brooks, the government had

to prove three elements beyond a reasonable doubt: (1) that Brooks

"possessed the controlled substance described in the indictment;" (2)

that Brooks knew the substance was a controlled substance; and (3)

UNITED STATES v. BROOKS 5
that Brooks intended to distribute the controlled substance. The jury

was further instructed in Instruction 12 that, "[I]f the government has

proved elements 1 and 2 beyond a reasonable doubt, but did not prove

the 3rd element that the defendant had the intent to distribute the controlled substance, then you may find the defendant guilty of the lesser

offense." Thus, to convict Brooks of the lesser included offense of

simple possession, the jurors were instructed that they had to find

beyond a reasonable doubt that he had "possessed the controlled substance described in the indictment." In United States v. Richardson,

233 F.3d 223, 230-31 (4th Cir. 2000), this Court found that an instruction worded in this way complied with Apprendi and with Jones v.

United States, 526 U.S. 227 (1999). 

Brooks attempts to distinguish Richardson by arguing that it did

not address a lesser included offense instruction. However, Instructions 11 and 12 must be read together and, taken together, they

require the jurors to find beyond a reasonable doubt that Brooks possessed more than five grams of crack as charged in the indictment

before they could convict him of simple possession. Because the jury

found that Brooks possessed more than five grams of crack, the district court did not err in sentencing him to a term of more than one

year imprisonment. 

We therefore affirm the conviction and sentence. 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

6 UNITED STATES v. BROOKS