UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4259

DWIGHT LAMONT HUNTER, a/k/a Dee,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Chief District Judge.

(CR-94-111-MU)

Submitted: September 30, 1998

Decided: October 29, 1998

Before ERVIN and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael W. Patrick, HAYWOOD, DENNY & MILLER, L.L.P., Durham, North Carolina, for Appellant. Mark T. Calloway, United States

Attorney, Robert J. Conrad, Jr., Assistant United States Attorney,

Charlotte, North 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Unpublished opinions are not binding precedent in this circuit.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:

Dwight Lamont Hunter appeals his conviction by a jury of conspiracy to possess with intent to distribute cocaine and crack cocaine in

violation of 21 U.S.C. § 846 (1994). See also 21 U.S.C. § 841(a)

(1994). Hunter played a pivotal role in a conspiracy to distribute crack

cocaine in and around Kannapolis, North Carolina. Raphael Ulloa, a

New York crack cocaine dealer, supplied hundreds of kilograms of

crack cocaine to Hunter in weekly multi-kilogram quantities. The testimony of Hunter's "lieutenants," Steve Whitaker, James Nance, and

Bernard Adams described the enormous scope and detailed operations

of the conspiracy.

On this testimony, and that of numerous others, the jury found

Hunter guilty of the conspiracy charge. Over Hunter's objections, the

district court adopted the presentence investigation report's recommendation that Hunter receive a two-level enhancement under U.S.

Sentencing Guidelines Manual § 3C1.1 (Nov. 1994) and a four-level

enhancement under USSG § 3B1.1(a). In addition, the district court

found that it had no discretion to depart from the Guideline-mandated

life sentence based on Hunter's contention that as he grew older serving his sentence, he would be less likely to commit more crime upon

his release. On its conclusion that it lacked this discretion, the district

court sentenced Hunter to life in prison.

In this appeal, Hunter makes numerous assignments of error both

with respect to his conviction and his sentence. Hunter contends that

the district court erred in failing to suppress the results of the execution of a search warrant and in failing to suppress evidence of telephone numbers taken from his pager without a warrant. Hunter also

claims that the district court erred by admitting hearsay evidence and

failing to instruct the jury on multiple conspiracies. In attacking his

sentence, Hunter assigns error to the district court's application of a

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two-level enhancement for obstruction of justice and a four-level

enhancement for his role in the offense. Hunter also suggests that the

district court erred in failing to make a downward departure from his

life sentence. Finally, Hunter generally attacks the Guidelines Manual's disparate treatment of crack cocaine and powder cocaine. Finding

no merit to any of these assignments of error, we affirm the district

court's judgment and sentence.

I

Hunter first attacks the district court's denial of his motion to suppress the results of a search pursuant to a warrant issued for a house

at 112 Waco Avenue in Kannapolis, North Carolina. Hunter notes that

the affidavit did not contain information specifically linking drug

activity to the house at 112 Waco Avenue. See, e.g., United States v.

Ramos, 923 F.2d 1346, 1352 (9th Cir. 1991). Moreover, the affidavit

did not mention 112 Waco Avenue. The district court denied Hunter's

motion to suppress the single Western Union receipt seized during

that search, concluding that the officers who executed the search

relied on the warrant in good faith. See United States v. Leon, 468

U.S. 899, 920 (1984). Explaining the good faith exception, the

Supreme Court held that evidence seized under a facially invalid

search warrant will be suppressed "only if the officers were dishonest

or reckless in preparing their affidavit or could not have harbored an

objectively reasonable belief in the existence of probable cause." Id.

at 926. We review de novo the determination of the district court that

the good faith exception to the exclusionary rule applies. See United

States v. George, 975 F.2d 72, 77 (2d Cir. 1992).

This good faith exception is not all-inclusive. A warrant that is

"based on an affidavit that was so lacking in indicia of probable cause

as to render official belief in its existence entirely unreasonable" is

insufficient to support a finding of good faith, and any evidence

received pursuant to that warrant must be excluded. United States v.

Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995) (citing Leon, 468 U.S.

at 923). The district court concluded that the omission of any reference to the target residence of the search warrant was a mere technical

omission. However, the affidavit's complete failure to mention 112

Waco Avenue necessitates a reliance on the subjective knowledge of

the executing officer that Hunter, as the target of the investigation and

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subject of the affidavit, kept at least a part-time residence at 112

Waco Avenue. This reliance renders it difficult to conclude that the

executing officers possessed an "objectively reasonable" belief in the

existence of probable cause to search a dwelling not mentioned in the

affidavit supporting the search warrant.

Even assuming this flaw in the warrant places the officers' actions

in executing the warrant outside the good faith exception to the exclusionary rule, the admission of the evidence obtained from 112 Waco

Avenue does not mandate reversal of Hunter's conviction. The admission of illegally seized evidence is subject to a harmless error review.

See Franks v. Delaware, 438 U.S. 154, 162 (1978); United States v.

Rude, 88 F.3d 1538, 1553 (9th Cir. 1996), cert. denied, ___ U.S. ___,

65 U.S.L.W. 3465 (U.S., Jan. 6, 1997) (No. 96-780). For the assumed

error in this case to be harmless, the Government must prove beyond

a reasonable doubt that the single Western Union receipt seized and

introduced into evidence did not contribute to the guilty verdict. See

United States v. McCloud, 127 F.3d 1284, 1289 (10th Cir. 1997) (citing Chapman v. California, 386 U.S. 18, 24 (1967)).

Hunter contends that the Government cannot shoulder this burden

because the receipt was necessary to corroborate the testimony of

prosecution witnesses who testified regarding the flow of drug money

in the conspiracy. Instead of being the "important corroboration" that

Hunter suggests that it was, the receipt seized from 112 Waco Avenue

was merely one of fourteen Western Union receipts introduced into

evidence. Even in the absence of that receipt, there was ample evidence regarding the flow of money through the conspiracy. There

were thirteen other Western Union receipts providing corroboration

for testimony regarding the funding of the drug purchases. The fourteenth receipt merely provided incremental support for the Government's witnesses' credibility. As a result, we have no difficulty

concluding beyond a reasonable doubt that the introduction of the single receipt seized in the search did not contribute to the guilty verdict.

Assuming the district court erred in declining to suppress the evidence, that error was harmless.

Hunter next objects to the district court's ruling regarding the testimony of Detective John Roberts. At one point during his testimony,

Detective Roberts stated that one of Hunter's co-conspirators, James

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Nance, had informed him where Nance and Hunter stored their

cocaine in the latter stages of the conspiracy to conceal it from the

authorities. Hunter claims that the statement was inadmissible hearsay

because Nance's statement was not in furtherance of his conspiracy

with Hunter. See Fed. R. Evid. 801(d)(2)(E). A district court's evidentiary rulings should not be disturbed absent an abuse of discretion. See

United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992). An

abuse of discretion might arise if a district court bases its ruling on

erroneous factual or legal premises. See James v. Jacobson, 6 F.3d

233, 239 (4th Cir. 1993). The district court did not abuse its discretion

in admitting this evidence.

It bears repeating that hearsay is "a statement, other than one made

by the declarant while testifying . . ., offered in evidence to prove the

truth of the matter asserted." Fed. R. Evid. 801(c). As the Government

points out, this statement was not offered "to prove the truth of the

matter asserted," but to provide an explanation for Detective Roberts'

decision to search the location that Nance described. The truth of

Nance's statement was borne out not only by Nance's own testimony

regarding the location for storing cocaine, but also by the fact that

Detective Roberts found exactly what Nance had described where

Nance said it would be. The district court's ruling was not based on

erroneous factual or legal premises.

Hunter next claims that the district court erred in denying his

motion to suppress evidence of the telephone numbers the arresting

officers discovered stored in Hunter's pager. The officers seized the

pager when they arrested Hunter. Before his arrest, Hunter presumably had a reasonable expectation of privacy in the contents of the

pager's memory. See United States v. Chadwick , 433 U.S. 1, 10-11

(1977). However, after his arrest, the contours of Hunter's rights are

somewhat different. They are tempered by an arresting officer's need

to preserve evidence. This need is an important law enforcement component of the rationale for permitting a search of a suspect incident

to a valid arrest. See United States v. Robinson , 414 U.S. 218, 226

(1973). Because of the finite nature of a pager's electronic memory,

incoming pages may destroy currently stored telephone numbers in a

pager's memory. The contents of some pagers also can be destroyed

merely by turning off the power or touching a button. See, e.g.,

United States v. Frost, 999 F.2d 737, 739 (3d Cir. 1993); United

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States v. Meriwether, 917 F.2d 955, 957 (6th Cir. 1990). It is, therefore, imperative that law enforcement officers have the authority to

immediately "search" or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence. See

United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). The motion

to suppress was properly denied.

Hunter cites United States v. Sanchez, 32 F.3d 1002, 1004 (7th Cir.

1994), for the proposition that the arresting officers in this case were

required to obtain a warrant to retrieve the telephone numbers from

the memory of the seized pager. In that case, the Seventh Circuit only

reported that the agents did, in fact, obtain a warrant. The court did

not hold that the warrant was required by the Fourth Amendment.

Furthermore, the Seventh Circuit has since expressedly held that the

exigent circumstances surrounding the potentially fleeting nature of

the evidence contained in a pager justifies a warrantless "search" of

the contents of the pager. See Ortiz, 84 F.3d at 984. The retrieval of

telephone numbers from Hunter's pager was justified by the need to

preserve evidence. As a result, the district court did not err in declining to suppress this evidence.

Hunter next contends that the district court erred by refusing to

instruct the jury that the Government had the burden of proving the

single conspiracy alleged in the indictment rather than a number of

multiple conspiracies. There is no merit to this contention. A single

conspiracy exists when there is "one overall agreement" or "one general business venture." United States v. Leavis, 853 F.2d 215, 218 (4th

Cir. 1988) (citations omitted). Whether the evidence at trial established a single conspiracy or multiple conspiracies is normally an

issue for jury determination, see United States v. Banks, 10 F.3d 1044,

1051 (4th Cir. 1993), dependent on the overlap of geographic area,

key actors, methods, and goals. See United States v. Crockett, 813

F.2d 1310, 1317 (4th Cir. 1987).

Defendants are not automatically entitled to an instruction about

multiple conspiracies. "If the facts support only a single conspiracy,

the jury need not be instructed about multiple conspiracies." Id. at

1316 (citations omitted). In addition, the failure to give a jury instruction on multiple conspiracies, even if the evidence supports such an

instruction, is not reversible error unless a defendant can show he was

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involved in a separate conspiracy unrelated to the overall conspiracy

charged in the indictment. See United States v. Howard, 115 F.3d

1151, 1157 (4th Cir. 1997); United States v. Kennedy, 32 F.3d 876,

884 (4th Cir. 1994). Under these principles, the district court did not

err in refusing to instruct on multiple conspiracies.

Hunter has provided little guidance, either to this court or the district court, as to how exactly he was prejudiced by the failure of the

district court to instruct the jury on multiple conspiracies. Hunter

states only that Ulloa, his co-conspirator, headed"at least" two conspiracies. Considering the evidence in the light most favorable to the

verdict, see United States v. Urbanik, 801 F.2d 692, 695 (4th Cir.

1986), Hunter remained the center man of a conspiracy with the same

geographic area, key actors, methods, and goals. There is no evidence

that would suggest that Hunter was a member of a conspiracy entirely

distinct from the overall conspiracy charged in the indictments.

Accordingly, the failure to give a multiple conspiracy instruction is

not reversible error. See Howard, 115 F.3d at 1157; Kennedy, 32 F.3d

at 884. Because the facts supported only the existence of a single conspiracy, the district court did not err in refusing Hunter's requested

instruction.

II

In challenging his life sentence, Hunter first objects to the application of a two-level enhancement for obstruction of justice applied to

his offense level under the U.S. Sentencing Guidelines Manual

§ 3C1.1 (Nov. 1994). The enhancement was based on Hunter's dissemination of discovery materials he obtained as a result of his prosecution to his co-conspirators and his misrepresentations to his

probation officer regarding his employment status which resulted in

his pretrial release. Hunter contends that the district court not only

failed to make the requisite findings of fact to apply the enhancement,

but also that his conduct was not sufficient to trigger § 3C1.1.

The record on appeal reflects that in response to the presentence

investigation report Hunter only objected to the application of

§ 3C1.1 to his conduct. There is no suggestion that Hunter disputed

the accuracy of the findings of the report regarding what his actions

were. Hunter's mere objection to the findings of the presentence

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report with regard to this enhancement is insufficient to preserve any

challenge to its factual content. Rather, Hunter had an affirmative

duty to show that the information in the report was unreliable and

articulate the reasons why its facts are untrue or inaccurate. Without

such an affirmative showing, the district court is"`free to adopt the

findings of the [presentence report] without more specific inquiry or

explanation.'" United States v. Terry, 916 F.2d 157, 162 (4th Cir.

1990) (quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir.

1990)). The record on appeal does not reflect Hunter's rationale for

suggesting the unreliable nature of the factual findings of the report

or that a single fact relating to this enhancement was untrue or inaccurate.

As the determination of whether § 3C1.1 applies to the facts is a

legal issue, we review the district court's ruling de novo. See United

States v. Hicks, 948 F.2d 877, 884 (4th Cir. 1991). The section

instructs that "[i]f the defendant willfully obstructed or impeded . . .

the administration of justice during the investigation, prosecution, or

sentencing of the instant offense, increase the offense level by 2

levels." USSG § 3C1.1. The commentary to this section further

explains the types of conduct that do and do not warrant the enhancement. In providing "a non-exhaustive list of examples of the types of

conduct to which this enhancement applies," Application Note 3

explains that, inter alia, the increase is triggered by conduct that

involves "providing materially false information to a probation officer

in respect to a presentence or other investigation for the court." USSG

§ 3C1.1 comment. (n.3(h)). Hunter paid Larry Caldwell to falsely

inform the probation officer that he employed Hunter during his

release on bond. This scheme to show his probation officer that he

had obtained gainful employment fell squarely within the application

note and qualified Hunter for the two-level enhancement.1

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1 Because the district court properly applied the two-level enhancement

as a result of this conduct, we need not consider whether Hunter's distribution of discovery materials to his co-conspirators, resulting in their

attempting to change their distribution methods, also qualified Hunter for

an obstruction of justice enhancement. See United States v. Self, 132 F.3d

1039, 1043 (4th Cir. 1997) (stating enhancement does not apply where

defendant obstructs investigation of another individual's offense), cert.

denied, ___ U.S. ___, 66 U.S.L.W. 3705 (U.S., Apr. 27, 1998) (No. 97-

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Hunter also challenges the calculation of his offense level by

claiming that the district court erred in applying a four-level enhancement for his leadership role in the conspiracy. See USSG § 3B1.1(a).

Hunter suggests that because his associates in the conspiracy did not

receive similar enhancements, it would be "fundamentally unfair" to

impose the leadership enhancement to his sentencing calculus. The

determination that a defendant is an organizer or leader in an offense

is essentially a factual question reviewable for clear error. See United

States v. Harriott, 976 F.2d 198, 202 (4th Cir. 1992). Although the

finding must be articulated and supported by evidence, see id., the

court may address any of the relevant factors. See United States v.

Harris, 39 F.3d 1262, 1270-71 (4th Cir. 1994); see also USSG

§ 3B1.1 comment. (n.4). The testimony at trial showed that Hunter

recruited people into the conspiracy, received the cocaine for the

street-level distributors, received payments for the cocaine, and determined who would be actively distributing at any given time. There

was no clear error in assigning Hunter this enhancement. The fact that

his co-conspirators, who pled guilty, did not also receive an enhancement does not suggest any error. The sentencing court need not consider the sentence of a codefendant when imposing sentence. See

United States v. Foutz, 865 F.2d 617, 622 (4th Cir. 1989).

Hunter also contends that because Raphael Ulloa was the organizer

or leader of the conspiracy, Hunter should not have received a fourlevel enhancement. The Guidelines specifically note that "[t]here can,

of course, be more than one person who qualifies as a leader or organizer." USSG § 3B1.1 comment. (n.4). Even assuming Ulloa was an

organizer or leader in this conspiracy, this does not preclude the district court from applying the enhancement to Hunter. Because the district court did not commit clear error, there is no reason to disturb the

court's sentencing calculation.

Hunter next challenges the district court's determination that it had

no discretion to depart from the guidelines range based on a lower

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8510). But see United States v. Kirk, 70 F.3d 791, 797-98 (5th Cir. 1995)

(noting that conduct supporting enhancement need not be "related

directly to a particular offense."), aff'd en banc, 105 F.3d 997 (5th Cir.

1997), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3254 (U.S., Oct. 6, 1997)

(No. 96-7759).

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likelihood of recidivism. Hunter claimed that because he would grow

older, and become less likely to commit crime as a result of his life

sentence, the district court should consider a departure. The denial of

a request for a downward departure is reviewable only if the district

court mistakenly believed that it lacked the authority to depart. See

United States v. Underwood, 970 F.2d 1336, 1338 (4th Cir. 1992). In

this case, the district court stated that it lacked the authority to depart

downward on the ground of the inevitable fact that Hunter would

grow old during his service of a life sentence.

A downward departure may be warranted where the defendant's

criminal history "significantly over-represents .. . the likelihood that

the defendant will commit further crimes." USSG§ 4A1.3, p.s. That

is not the case here. Hunter argues that his sentence, life in prison, as

opposed to his criminal history, necessarily means that the likelihood

that he will commit future crimes is diminished. It is well established

that a sentencing court may depart from the applicable guideline

range where "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission." 18 U.S.C.A.

§ 3553(b) (West Supp. 1998). It cannot seriously be contended that

the Commission failed to take into account that a person serving a life

sentence would grow older during the course of that sentence. See,

e.g., USSG § 5H1.1. Accordingly, the district court did not err in concluding that it lacked the discretion to depart as a result of Hunter's

life sentence.2 See generally United States v. Atkins, 116 F.3d 1566,

1570-71 (D.C. Cir. 1997) (disapproving of sentencing court's consideration of defendant's age when released in granting downward

departure), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3337 (U.S., Nov.

10, 1997) (No. 97-6320).

Finally, Hunter claims that the district court erred in applying the

Guidelines provisions for crack cocaine. Hunter suggests that there is

no rational basis to support the disparity in penalty between crack

cocaine and powder cocaine and that the Guidelines provisions

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2 Hunter directs the court's attention to United States v. Garrett, 712 F.

Supp. 1327 (N.D. Ill. 1989). The case is not binding precedent and is distinguishable on its facts. Garrett was not subject to a life sentence. See

id. at 1335.

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regarding crack cocaine are racially discriminatory. As counsel concedes, we have previously rejected Hunter's position. See United

States v. Banks, 130 F.3d 621, 626 (4th Cir. 1997) (regarding rational

basis), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3655 (U.S., Apr. 6,

1998) (No. 97-8221); United States v. Hayden, 85 F.3d 153, 157-58

(4th Cir. 1996) (same); United States v. Johnson , 54 F.3d 1150, 1163

(4th Cir. 1995) (noting increased penalty not racially discriminatory);

United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir. 1994) (rejecting

argument based on equal protection); United States v. Bynum, 3 F.3d

769, 774-75 (4th Cir. 1993) (same). We have also previously rejected

Hunter's contention that the definition of crack cocaine is unconstitutionally vague. See United States v. Pinto, 905 F.2d 47, 49-50 (4th

Cir. 1990).

III

Finding no merit to any of Hunter's assignments of error, either at

trial or in sentencing, we affirm the district court's judgment and sentence. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and would not aid the decisional process.

AFFIRMED

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