                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4804


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILFORD ANTONIO DRUMMOND,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District Judge. (7:09-cr-00030-GRA-2)


Submitted:   February 8, 2011             Decided:    March 16, 2011


Before WILKINSON, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant.    Leesa Washington, Assistant
United   States Attorney,  Greenville,  South  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following a jury trial on a superseding indictment,

Wilford   Antonio        Drummond         was    found   guilty        of    conspiracy           to

possess with intent to distribute fifty grams or more of cocaine

base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West

1999 & Supp. 2010) and 21 U.S.C. § 846 (2006) (“Count One”);

possession    with       intent      to    distribute     fifty    grams          or    more      of

cocaine base, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A)

(“Count Two”); being a felon in possession of a firearm, in

violation     of    18        U.S.C.      § 922(g)(1)         (2006)        and    18       U.S.C.

§ 924(a)(2), (e) (2006) (“Count Five”); and using and carrying a

firearm during and in relation to, and possessing a firearm in

furtherance of, a drug trafficking offense, in violation of 18

U.S.C. § 924(c)(1) (2006) (“Count Six”).                       Drummond was sentenced

to 300 months’ imprisonment, which consisted of the statutory

mandatory     minimum         of     240       months    on    Counts        One       and        Two

(concurrent)       and    a    consecutive          sixty-month    sentence            on    Count

Six.    The district court later amended the criminal judgment to

correct an error in the special assessment.

            Counsel has filed this appeal pursuant to Anders v.

California,    386       U.S.      738    (1967),     averring    that        there         are   no

meritorious issues for appeal, but asking this court to review

the    district     court’s:             (1)    denial   of    Drummond’s          motion         to

suppress; (2) denial of trial counsel’s request to present the

                                                2
jury with evidence pertaining to Drummond’s theory of vindictive

prosecution; and (3) use of a prior conviction that arose from

criminal conduct perpetrated when Drummond was a juvenile to

support    the    enhanced    statutory           mandatory      minimum.            Although

advised of his right to do so, Drummond did not file a pro se

supplemental brief, and the Government has similarly declined to

file   a   brief.     For    the    reasons         that      follow,    we    affirm     the

district court’s amended criminal judgment.



                                          I.

            Taken in the light most favorable to the Government,

United States v. Lewis, 606 F.3d 193, 195 n.1 (4th Cir. 2010),

the evidence adduced at the suppression hearing established the

following facts.        On June 17, 2008, Sergeant Joseph Pharis of

the Spartanburg County Sheriff’s Office swore an affidavit in

support of a search warrant for the residence located at 321

Irby Road (“Irby Road residence”).                      Pharis based his warrant

application      on   information        he       received      from    a     confidential

informant     employed       by    the    Sheriff’s            Office,        whom     Pharis

testified was consistently reliable.                     A local magistrate judge

approved the warrant.

            The warrant was executed on June 26, 2008, nine days

after it was issued.          Five men were at the Irby Road residence

that   day,      including    Drummond            and   his     co-defendant,          Donald

                                              3
Williams, Jr.         The search of the Irby Road residence yielded

several firearms and approximately sixty-eight grams of cocaine

base.      After reading the men their Miranda 1 rights, Pharis asked

if   anyone       would   claim   responsibility        for     the   contraband.

Drummond admitted possession of the firearm that had been found

in   his    bedroom   and    provided    a    handwritten     statement    to   that

effect.     Drummond also executed a written Miranda waiver.

             Pharis testified that, shortly after Drummond executed

this statement, Drummond’s mother (Judith Boswell) arrived on

the scene.        Pharis unequivocally denied threatening to arrest

Boswell or telling Drummond that the police would charge Boswell

if he did not claim possession of the firearm.                        In denying

Drummond’s motion to suppress, the district court credited this

testimony and thus rejected Drummond’s contention that Pharis

coerced him to give an inculpating statement by threatening to

charge or arrest his mother.

             On    appeal,     counsel       concedes   that     whether    Pharis

coerced Drummond into providing a statement is an issue of fact,

which this court reviews for clear error.               United States v. Day,

591 F.3d 679, 682 (4th Cir. 2010).                 We find no error in the

district court’s ruling.          The court was well within its province

to credit Pharis’ testimony on this point.               See United States v.

      1
          Miranda v. Arizona, 384 U.S. 436 (1966).



                                         4
Abu   Ali,    528     F.3d   210,    232    (4th    Cir.    2008)   (explaining       the

deference this court affords the district court’s credibility

determinations, because “it is the role of the district court to

observe witnesses and weigh their credibility during a pre-trial

motion     to       suppress”      (internal       quotation     marks       omitted)).

Accordingly,         we   affirm     the    denial    of    Drummond’s       motion    to

suppress. 2



                                            II.

              We next consider whether the district court erred in

prohibiting         Drummond    from       presenting      evidence    to    the      jury

pertaining to his theory of vindictive prosecution.                         Outside the

presence of the jury, the district court permitted Drummond to

question      the    case    agent     in   charge,     ATF    Agent   Heather        Cox-

McClain, regarding a meeting at which she, defense counsel, the

Assistant       United    States     Attorney      (“AUSA”),    and    Drummond       were

present.        Cox-McClain disavowed telling Drummond that he would

not be prosecuted for the narcotics offenses if he pled guilty

to the § 922(g) charge.              In response to allegations by defense

counsel, AUSA Leesa Washington also denied promising Drummond

that no superseding indictment would be filed if he pled guilty.


      2
       We also conclude that the record establishes that the
search warrant was valid and supported by probable cause.



                                             5
The district court thus denied Drummond’s request to present

this evidence to the jury.

              We discern no error in the district court’s ruling.

This court has held that “[a] prosecutor’s threat to bring a

more severe indictment if the defendant refuses to cooperate

does   not    amount       to    vindictiveness       as   long   as     the    defendant,

should he refuse to cooperate, is not treated worse than he

would have been if no plea bargain had been offered.”                                 United

States v. Williams, 47 F.3d 658, 662 (4th Cir. 1995); see also

United    States      v.    Wilson,    262     F.3d    305,     315   (4th     Cir.   2001)

(opining that a prosecutor’s pretrial decisions “will rarely, if

ever,” give rise to a presumption of vindictiveness based on

timing).       Thus, as a matter of law, there was no basis from

which to infer a vindictive motive for the prosecutor’s decision

to pursue a superseding indictment.                     Accordingly, the district

court’s      denial    of       Drummond’s    request      to   pursue    this    line   of

questioning was more than proper.



                                             III.

              Finally,       we     review    the     basis     for    the     twenty-year

mandatory minimum sentences (concurrent) imposed on Counts One

and Two.      In the 21 U.S.C. § 851 (2006) information filed prior

to trial, the Government identified that Drummond was convicted

in 2001 of a felony drug offense.                   Thus, Drummond was on notice

                                              6
of   the   Government’s       intent        to       pursue       the    enhanced   statutory

mandatory minimum authorized by 21 U.S.C.A. § 841(b)(1)(A).

             According      to     his      presentence            report,      Drummond     was

sixteen     years    old    when      he    engaged          in    the    criminal      conduct

underlying that conviction, but he pled guilty, two years later,

in the General Sessions Court for Spartanburg County.                                  Drummond

argued     that,    because      he   was    a        juvenile      at    the   time    of   the

criminal conduct, this conviction could not be used to support

the enhanced penalty.            The district court disagreed, finding the

fact     that   Drummond      pled       guilty         in    General       Sessions      Court

established that he was convicted as an adult.

             Counsel       points      to        no     authority         to    support      the

proposition that the district court erred in relying on this

conviction, and we have found none.                      The Sixth Circuit, however,

recently rejected this very argument, concluding that “[n]othing

in § 841(b)(1)(A) indicates that a defendant’s age at the time

of his or her prior conviction is relevant to the application of

§ 841, but to the extent that it is, age would appear to matter

if it was related to the process in which a defendant’s prior

conviction was obtained.”                  United States v. Graham, 622 F.3d

445, 457 (6th Cir. 2010).                   The defendant in that case, like

Drummond, was convicted and sentenced as an adult, although he

was arrested as a juvenile.                Id.        Thus, the court ruled that the

prior conviction was properly utilized to enhance the statutory

                                                 7
mandatory    minimum.        Id.      at    459.         We    are    persuaded      by   the

rationale       expressed    in       Graham       and    therefore         conclude      the

district court properly relied on this conviction to impose the

enhanced mandatory minimum sentence.



                                            IV.

            In accordance with Anders, we have thoroughly reviewed

the    entire    record     in    this      case    and       found   no    non-frivolous

issues.      Accordingly, we affirm the district court’s amended

criminal judgment.          This court requires that counsel inform the

client, in writing, of his right to petition the Supreme Court

of the United States for further review.                       If the client requests

that   a   petition   be     filed,        but    counsel      believes      that    such   a

petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation.                             Counsel’s motion

must state that a copy was served on the client.                                 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




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