UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4402

JOSEPH ANTHONY GLENN, a/k/a

Jamaica Joe,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Falcon B. Hawkins, Chief District Judge.

(CR-94-127)

Submitted: February 27, 1997

Decided: March 13, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam

opinion.

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COUNSEL

Jerry N. Theos, URICCHIO, HOWE, KRELL, JACOBSON,

TOPOREK, & THEOS, P.A., Charleston, South Carolina, for Appellant. J. Rene Josey, United States Attorney, Mary Gordon Baker,

Assistant United States Attorney, Charleston, South Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Joseph Anthony Glenn pled guilty to conspiracy to distribute crack

cocaine, 21 U.S.C. § 846 (1994), and received the statutory minimum

sentence of ten years. He appeals his sentence, alleging that the district court erred in finding that the search of a co-defendant's residence was lawful and considering crack and powder cocaine found

during the search. Glenn also contends that the court clearly erred in

attributing those drugs to him as relevant conduct, USSG § 1B1.3,*

and further erred in upholding the sentencing ratio for crack and powder cocaine offenses and refusing to depart because of the disparity

in sentences. We affirm in part and dismiss in part.

Glenn headed a group of Jamaicans who sold crack in North

Charleston, South Carolina, in 1993. The group included Glenn's two

brothers, Everett and Clinton Donaldson, as well as Francis March

and Lionel Gordon. March and his girlfriend lived in a duplex townhouse which was leased in her name. However, Glenn gave March

money to pay the rent and other bills and the residence was used to

store crack. Between December of 1993 and the end of March 1994,

the defendants sold crack on numerous occasions to a confidential

informant and an undercover officer. Video surveillance of March's

residence disclosed that the crack sold usually was retrieved from

there.

On April 16, 1994, Glenn was arrested; his residence was searched

under a federal warrant. Officers found $22,000 in cash and three firearms. On the same day, March's townhouse was searched; no drugs

were recovered. The residence was secured. On April 20, 1994, drug

task force officers returned with a state search warrant authorizing

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*United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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them to seize household items assumed to have been purchased with

drug proceeds. One of the officers moved a pile of linens which had

been pulled out of the linen closet at the top of the stairs during the

first search. Underneath the linens was a paper bag; when the officer

picked it up, crack and powder cocaine fell out of the bag.

Glenn entered a guilty plea to conspiracy. The probation officer

recommended that he be held responsible for all the crack distributed

and for the additional crack and cocaine found in March's residence.

Glenn argued that the latter amounts should not be considered

because their seizure was illegal in that the second search warrant did

not authorize a search for drugs. He also contended that he had no

connection with the drugs found in March's residence on April 20.

The district court properly held against Glenn on each point raised.

First, while the court found the search and seizure lawful, we note that

the exclusionary rule is not applicable in sentencing proceedings, and

thus the drugs in March's residence could have been considered even

if they were unlawfully obtained. See United States v. Lee, 540 F.2d

1205, 1211 (4th Cir. 1976). Second, the district court did not clearly

err in finding that the drugs found on April 20 had simply been

missed in the first search and that Glenn was accountable for them.

The evidence supported the court's finding that there was "a nexus"

between Glenn and the drugs stored in March's residence, that is, that

he was either directly involved with them or that their presence was

reasonably foreseeable to him. See USSG§ 1B1.3(a)(1)(B).

Glenn's contention that the sentencing ratio between crack and

powder cocaine offenses violates equal protection, due process, or the

Eighth Amendment is without merit. See United States v. Fisher, 58

F.3d 96, 99-100 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.

3270 (U.S. Oct. 10, 1995) (No. 95-5923); United States v. D'Anjou,

16 F.3d 604, 612-13 (4th Cir. 1994); United States v. Pinto, 905 F.2d

47 (4th Cir. 1990); United States v. Thomas, 900 F.2d 37 (4th Cir.

1990). The court's decision not to depart on this basis is not reviewable. See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).

The sentence is therefore affirmed. We dismiss that portion of the

appeal which contests the district court's decision not to depart. We

dispense with oral argument because the facts and legal contentions

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are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART AND DISMISSED IN PART

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