UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4238

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

LARRY BLEVINS, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Southern 

District of West Virginia, at Beckley. Thomas E. Johnston, 

District Judge. (5:07-cr-00017-1) 

Submitted: February 4, 2009 Decided: March 6, 2009 

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

S. Mason Preston, PRESTON & WEESE, L.C., Lewisburg, West 

Virginia, for Appellant. Charles T. Miller, United States 

Attorney, Miller Bushong, Assistant United States Attorney, 

Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Larry Blevins pled guilty pursuant to a written plea 

agreement to distribution of oxycodone, in violation of 21 

U.S.C. § 841(a)(1) (2006). Blevins was sentenced to seventy 

months’ imprisonment. Finding no error, we affirm. 

 On appeal, Blevins contends the district court erred 

in calculating the quantity of drugs attributable to him. When 

determining a sentence, district courts must initially calculate 

the appropriate advisory Guidelines range. Gall v. United 

States, 128 S. Ct. 586, 596 (2007). The court may consider any 

relevant and reliable evidence before it, including hearsay, in 

establishing relevant conduct. United States v. Bowman, 926 

F.2d 380, 381 (4th Cir. 1991). Indeed, hearsay alone can 

provide sufficiently reliable evidence of drug quantity. United 

States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992). The 

Government has the burden of establishing the quantity of drugs 

used for sentencing calculations by a preponderance of the 

evidence. United States v. Milam, 443 F.3d 382, 386 (4th Cir. 

2006). 

 We review the district court’s drug quantity 

determination for clear error. United States v. Kiulin, 360 

F.3d 456, 461 (4th Cir. 2004). The district court is not 

required to precisely calculate attributable drug weights, but 

may instead approximate drug quantity. U.S. Sentencing 

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Guidelines Manual (“USSG”) § 2D1.1, comment. (n.12) (2006) 

(permitting courts to approximate the quantity of drugs where 

there has not been a seizure or the amount seized does not 

properly reflect the scale of the offense). “A district court’s 

approximation of the amount of drugs is not clearly erroneous if 

supported by competent evidence in the record.” United States 

v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). If the district 

court relies on the drug quantity included in the presentence 

report, the defendant bears the burden of establishing that the 

information is incorrect. Id. at 210-11. “[M]ere objections 

[to the presentence report] are insufficient.” Id. at 211. 

 The presentence report recommended a drug weight the 

marijuana equivalent of 1523.15 kilograms, based on seven 

controlled purchases, substances seized during a search of 

Blevins’s residence, and Blevins’s statement. Also included in 

the report were five additional controlled purchases, 

information obtained from the confidential informant during a 

debriefing interview, and the statement of Clifford Roy 

Johnston--an individual named as an aider and abetter in the 

offense. 

 At sentencing, counsel argued that the drug weights 

contained in Blevins’s statement were unreliable as a 

psychological analysis indicated that Blevins was “easily led” 

and not competent to waive his rights pursuant to Miranda v. 

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Arizona, 384 U.S. 436 (1966). Counsel likewise argued that the 

drug weights contained in Johnston’s statement were unreliable 

as Johnston suffered memory loss due to a mining accident. 

 The district court reviewed the statements of Blevins 

and Johnston, and determined that they were “generally 

consistent.” While the court acknowledged that Blevins might 

suffer from mental health issues, it nevertheless concluded that 

such issues were insufficient to cause the reliability of his 

statement to be questioned. Accordingly, the court found 

credible evidence to support the relevant conduct, overruled 

Blevins’s objections, and adopted the presentence report as 

written. 

 Counsel continues to assert on appeal that the 

statements made by Blevins and Johnston are unreliable. The 

statements conservatively establish that Blevins dealt half an 

ounce of cocaine base a week for four months, or a total of 

eight ounces. Controlled purchases confirm that Blevins sold 

cocaine base from July 2006 to October 2006. Moreover, a 

confidential informant observed approximately 7.5 grams, or a 

little more than one-quarter ounce, of cocaine base at 

Johnston’s residence that was said to belong to Blevins. 

Johnston confirmed that he on occasion held cocaine base for 

Blevins. Based on these facts, the district court cannot be 

said to have clearly erred in its calculation of drug quantity. 

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 Blevins also contends that the district court erred in 

denying his motion to suppress the search of his residence under 

State v. Mullens, 650 S.E.2d 169, 190 (W. Va. 2007) (holding 

West Virginia State Constitution prohibits police from sending 

informant into another’s home to secretly use an electronic 

surveillance device without a warrant).∗

 In his motion, raised 

for the first time during the sentencing hearing conducted on 

February 6, 2008, Blevins argued that the search warrant issued 

in his case was improperly based on surveillance prohibited by 

Mullens. The district court denied Blevins’s motion to suppress 

as both untimely and without merit. 

 “When a criminal defendant has solemnly admitted in 

open court that he is in fact guilty of the offense with which 

he is charged, he may not thereafter raise independent claims 

relating to the deprivation of constitutional rights that 

occurred prior to the entry of the guilty plea.” Tollett v. 

Henderson, 411 U.S. 258, 267 (1973). Thus, “direct review of an 

adverse ruling on a [motion to suppress] is available only if 

the defendant expressly preserves that right by entering a 

conditional guilty plea.” United States v. Wiggins, 905 F.2d 

51, 52 (4th Cir. 1990). As Blevins’s guilty plea was not 

 ∗ Mullens issued on February 28, 2007, more than two months 

prior to Blevins’s guilty plea on May 7, 2007. 

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conditionally entered, and he does not challenge the voluntary 

and intelligent nature of his plea, he has waived review of the 

denial of his motion to suppress. 

 In any event, the district court did not err in 

denying Blevins’s motion. A motion to suppress must be made 

prior to the commencement of trial. Fed. R. Crim. P. 

12(b)(3)(C). Failure to timely raise a motion to suppress will 

generally constitute forfeiture of the issue unless the district 

court determines relief from the forfeiture is warranted. Fed. 

R. Crim. P. 12(e); United States v. Ruhe, 191 F.3d 376, 386 (4th 

Cir. 1999) (referencing Rule 12(f), amended to 12(e) in 2002). 

A district court’s decision on whether or not to permit an 

untimely suppression motion under Rule 12(e) is reviewed for 

clear error. Ruhe, 191 F.3d at 385. Since Blevins failed to 

offer any explanation for his untimeliness, the district court 

cannot be said to have clearly erred in denying the motion to 

suppress. 

 Even on the merits, the district court correctly 

concluded that whether or not a seizure violates state law is 

irrelevant to the determination of a motion to suppress in 

federal court. See United States v. Van Metre, 150 F.3d 339, 

347 (4th Cir. 1998) (stating relevant inquiry is not whether 

state law enforcement officer violated state law in securing 

evidence, but whether Fourth Amendment was violated). Moreover, 

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federal statutory and constitutional law permits officials to 

place an electronic surveillance device on a consenting 

informant for the purpose of recording communications with a 

third-party suspect, even in the absence of a warrant. 18 

U.S.C. § 2511(2)(c) (2006); see also United States v. White, 401 

U.S. 745, 751-54 (1971) (plurality opinion) (determining 

warrantless use of electronic equipment by undercover government 

agent in recording conversation with defendant did not violate 

Fourth Amendment). 

 Accordingly, we affirm the judgment of the district 

court. 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