                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4708



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LANDON LOVING,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (5:05-cv-00220)


Submitted: May 9, 2007                         Decided: July 5, 2007


Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barron M. Helgoe, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Miller A. Bushong III, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Landon Loving was convicted by a jury of possession with

intent to distribute crack and cocaine, 21 U.S.C. § 841(a) (2000),

and sentenced to 121 months imprisonment.          He appeals, claiming

that: (1) the district court erred in denying his motion to

suppress; (2) the district court plainly erred in allowing certain

testimony; (3) he was denied effective assistance of counsel; and

(4) the evidence was insufficient to establish the requisite intent

to distribute.     Loving has also filed a supplemental pro se brief

in   which   he   asserts   that   certain   testimony   was   admitted   in

violation of his Sixth Amendment rights.           For the reasons that

follow, we affirm.

             The evidence presented at Loving’s trial, viewed in the

light most favorable to the Government, see United States v.

Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.

In March 2005, the Beckley, West Virginia, police department began

an investigation into alleged drug dealing at Loving Auto Repair,

an automobile repair shop owned by Loving.          After arranging two

controlled buys through a confidential informant and conducting

surveillance of the repair shop, police obtained search warrants

for Loving’s home and Loving Auto Repair.

             During the search of the auto repair shop, police found

a key in a desk drawer.        The key was to a safe which was later

found behind the repair shop, hidden in a pile of garbage.                The


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safe contained 8.01 grams of crack cocaine, 141 grams of powder

cocaine, and a small amount of marijuana. An additional 2.87 grams

of crack cocaine and $1156 in cash were found in Loving’s pockets.

          Loving was indicted on two counts of possession with

intent to distribute cocaine and crack cocaine.       Prior to trial,

Loving filed a motion to suppress on three grounds:    (1) the search

warrant was invalid because it was based on a misrepresentation in

the affidavit submitted in support of the warrant application;

(2) the search warrants were actually obtained after the search had

been completed; and (3) the warrants were “re-applied for to cover

up an illegal search.” Following a pre-trial hearing, the district

court denied the motion, but invited Loving’s counsel to supplement

his motion at trial, “[i]f anything new comes up or occurs to you.”

On the morning of trial, Loving filed a document entitled “Addendum

to Suppression Motion Filed by Defendant, Landon Loving.”         The

Government’s attorney stated that “as I understand it from [defense

counsel], there is no additional argument, he is just vouching the

record.” Loving’s attorney replied, “That’s essentially true, your

honor.   There is a request in there that if the tapes be found of

those particular buys, because there does appear to be some kind of

a conflict, that those be included in the record.      However, given

the court’s previous rulings, I believe that would pretty much just

put it on the record for such appeal purposes as it covers, sir.”




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            During Loving’s trial, one of the government witnesses,

Detective Montgomery, was asked on direct examination why the safe

had   not   been   submitted   for   fingerprint   analysis.   Detective

Montgomery responded that:      “In my experience, it’s very difficult

to obtain fingerprints from surfaces such as these. . . Plus the

fact that it was just - - the evidence was so overwhelming that day

leading to Mr. Loving, that we thought the case was so solid that

we didn’t really need fingerprints.”          Loving’s counsel did not

object.     The government also presented the testimony of Vincent

Larkin, who stated that Loving was his crack cocaine supplier and

that he (Larkin) had purchased the drugs at issue in both of the

controlled buys from Loving and then, in turn, sold them to the

confidential informant.

            Loving contends, first, that the district court erred in

denying his motion to suppress because the search exceeded the

scope of the warrant.     This argument was raised for the first time

in the “Addendum” to the motion to suppress, filed on the morning

of trial, and never brought to the district court’s attention.

Accordingly, Loving waived this claim by failing to timely raise it

before the district court.      See Fed. R. Crim. P. 12(f) (providing

that failure to raise defenses or objections which must be made

prior to trial constitutes waiver).

            Next, Loving claims that the district court erred in

allowing Detective Montgomery’s testimony that “the evidence was so


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overwhelming” because it invaded the province of the jury. Because

Loving failed to object at trial, this claim is reviewed only for

plain error.       United States v. Olano, 507 U.S. 725, 732-34 (1993).

We find there was no error.         Smith’s answer was merely a response

to a question regarding his state of mind (i.e., why he did not

feel the need to have the safe tested for fingerprints). Also, the

testimony was in response to an issue first raised by Loving in his

cross-examination of Detective Smith.            Accordingly, any error was

invited by Loving.        See Shields v. United States, 273 U.S. 583, 586

(1927)(holding that defendant in a criminal case “cannot complain

of error which he himself has invited”);             see also United States v.

Jackson, 124 F.3d 607, 617 (4th Cir. 1997).                   Moreover, even

assuming the district court erred, we would not find plain error as

Detective      Montgomery’s    statement       was   sufficiently   brief    and

isolated that its admission did not affect Loving’s substantial

rights or call into question the integrity of the trial.

              Next, Loving claims that his attorney was ineffective for

failing to object to Detective Montgomery’s testimony. Claims of

ineffective assistance of counsel should be raised by motion under

28   U.S.C.    §   2255   (2000),   in   the    district   court,   unless    it

conclusively appears from the record that counsel failed to provide

effective representation.        United States v. DeFusco, 949 F.2d 114,

120-21 (4th Cir. 1991).          We find that it does not conclusively

appear from the face of the record that Loving’s attorney failed to


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provide effective representation sufficient for the claim to be

cognizable on direct appeal.

           Loving also challenges the sufficiency of the evidence.

Specifically, Loving claims that the Government failed to prove

intent to distribute because “there was no testimony that the

amounts seized were distribution amounts.”              However, intent to

distribute may be proved by a number of factors, including the

amount of cash seized, the possession of drug paraphernalia, and

the   seizure   of   a   quantity   of    drugs   too   large   for   personal

consumption.    See United States v. Fisher, 912 F.2d 728, 730 (4th

Cir. 1990).     Here, Detective Montgomery testified that the 145

grams of cocaine found in Loving’s safe had a street value of

approximately $8000 to $10,000, and that the crack cocaine had a

value of approximately $1400.            Along with the cocaine found in

Loving’s safe, officers also found digital scales and plastic

baggies.   Also, Loving had a large amount of cash in his pocket.

Finally, Detective Montgomery testified that he saw no evidence of

personal use by Loving, such as a crack pipe.             We find that this

evidence was sufficient to support a finding that Loving possessed

the drugs at issue with the requisite intent to distribute.

      Finally, Loving asserts in a pro se supplemental brief that

the district court erred in allowing the Government to present

testimony (through Detective Montgomery) about information received

from a confidential informant concerning the three controlled buys,


                                    - 6 -
in   violation     of   his   Sixth       Amendment      confrontation   rights      as

articulated in Crawford v. Washington, 541 U.S. 36 (2004).                    Loving

did not object in the district court to the testimony concerning

the informant, therefore we review only for plain error.                      Olano,

507 U.S. at 732-34.

       Under Crawford, the Sixth Amendment requires that a witness be

unavailable      and    that       there     be    a     prior    opportunity       for

cross-examination       before      testimonial        hearsay    evidence    may    be

admitted,    regardless       of    the    inherent      trustworthiness      of    the

statement.     Crawford, 541 U.S. at 68.                 Crawford applies only to

testimonial hearsay statements.              Id.       We find that the testimony

concerning    the   confidential          informant      was   introduced    for    the

limited purpose of explaining the course of the investigation and

thus was not a testimonial hearsay statement to which Crawford

applies.      Therefore, this claim is meritless.

       Accordingly, we affirm Loving’s conviction.                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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