UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                      No. 96-4121

ELRAY ROGERS, a/k/a Elray Rodgers,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
John A. MacKenzie, Senior District Judge.
(CR-95-115)

Argued: May 8, 1997
Decided: July 1, 1997

Before MURNAGHAN and HAMILTON, Circuit Judges, and
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Charles E. Haden, Hampton, Virginia, for Appellant.
Kevin Michael Comstock, Assistant United States Attorney, Norfolk,
Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States
Attorney, Norfolk, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Elray Rogers appeals his convictions for possession of fifty grams
or more of cocaine base (crack) with the intent to distribute, see
21
U.S.C. §§ 841(a)(1) and (b), and possession of a firearm by a con-
victed felon, see 21 U.S.C. § 922(g)(1). Rogers also attacks his
sen-
tence. We affirm.

I

On June 7, 1995, Investigator Derrick Young of the Norfolk Police
Department purchased a small quantity of crack from Debbie Haynes.
Haynes was arrested and agreed to cooperate against her supplier,
known as "Ray." (J.A. 55). 1

A few hours later, Investigator Young paged Rogers, and Rogers
returned the page. Haynes answered Rogers' call and asked if he had
any crack. Rogers told Haynes that he did not have any crack at the
moment, but was headed home to "re-up." (J.A. 59). Rogers agreed
to sell Haynes 1/16 of an ounce of crack for $100 and instructed
Haynes to meet him in the parking lot of a nearby Dixie Mart.

As the investigators were waiting for Rogers to arrive at the Dixie
Mart, Haynes identified Rogers as he drove by, traveling in the
direc-
tion of his apartment. At this point, Haynes informed Investigator
Young that Rogers lived in the Bay Terrace Apartments located on
the 1075 block of West Ocean View Avenue in Norfolk.

Five to eight minutes later, Rogers met with Haynes and Investiga-
tor Young. Rogers displayed the crack for Haynes and Investigator
_________________________________________________________________
1 "Ray" was later determined to be Rogers. For purposes of clarity,
we
will refer to "Ray" as Rogers.

                                 2
Young, but just prior to the sale, the arrest team arrived. As
Rogers
was being arrested, he discarded the crack and attempted to flee.
Rog-
ers was apprehended and placed under arrest.

Investigator Young and another investigator, Todd Sterling,
accompanied by Haynes, went to Rogers' apartment to verify that
Rogers actually lived there and to secure the apartment pending an
application for a search warrant. Investigator Sterling knocked on
the
door and Janiqua Morris, a ten-year old girl, answered the door.
Investigator Sterling told Morris that he was a police officer and
asked if there was an adult in the apartment. Morris replied in the
neg-
ative and also informed Investigator Sterling that her mother had
left
the apartment after she heard that Rogers was arrested.2 Morris
stated
that she was scared and alone in the apartment with a six-month old
child. Because Morris said she did not know what to do and the six-
month old child was crying, Investigator Sterling entered the
apart-
ment to see if the infant was in any danger and to secure the
apart-
ment prior to applying for a search warrant.
The infant was located in the rear bedroom. While in the rear bed-
room, Investigator Sterling observed, on the closet floor, a
digital
scale with cocaine residue on it and numerous plastic baggies next
to
the scale. A neighbor agreed to watch the children and the
apartment
was secured pending application to a state magistrate for a search
warrant.
A state magistrate issued a warrant that was executed by Investiga-
tor Sterling and other investigators of the Norfolk Police
Department.
During the search of Rogers' apartment, the investigators recovered
a safe with over 300 grams of crack, two guns, drug paraphernalia
and
a large sum of cash. The combination to the safe was found in Rog-
ers' pocket.

On July 20, 1995, a federal grand jury sitting in the Eastern
District
of Virginia returned a four-count indictment against Rogers.3 Count
_________________________________________________________________
2 Morris described Rogers as "her daddy" to Investigator Sterling.
(J.A.
100). Rogers denies that Morris is his daughter.
3 Rogers was also indicted on state drug and firearms offenses, but
these charges were dismissed in favor of the federal prosecution.

                                3
I of the indictment related to Rogers' alleged possession of crack
at
the Dixie Mart and charged him with possession of crack with the
intent to distribute, see 21 U.S.C. § 841(a)(1). The remaining
counts
related to the evidence seized at Rogers' apartment. Count II
charged
Rogers with possession of fifty grams or more of crack with the
intent
to distribute, see 21 U.S.C. §§ 841(a)(1) and (b). Count III
charged
Rogers with using a firearm during and in relation to a drug
traffick-
ing offense, see 18 U.S.C. § 924(c)(1). Count IV charged Rogers
with
possession of a firearm by a convicted felon, see 18 U.S.C.
§ 922(g)(1).

Prior to trial, Rogers moved to suppress, among other things, the
evidence seized during the search of his apartment. The district
court
denied the motion. Following a jury trial, the jury found Rogers
guilty
of the charges contained in Counts II, III, and IV and not guilty
of the
charge contained in Count I. 4 Rogers was sentenced to 175 months'
imprisonment on Count II and 120 months' imprisonment on Count
IV, running concurrent with the sentence imposed on Count II. Rog-
ers noted a timely appeal.
II

Rogers argues that the district court erred when it denied his
motion to suppress the evidence seized in his apartment. Accepting
for purposes of this appeal that Investigator Sterling's initial
entry
into the apartment was not supported by exigent circumstances, the
district court properly admitted this evidence under the
independent
source doctrine. See Murray v. United States, 487 U.S. 533 (1988).
The finding of an unlawful warrantless entry or search does not
automatically render excludable all items seized during a
subsequent
search pursuant to a valid search warrant. Id. at 542. Rather,
only the
evidence tainted by the illegality is excludable. See United States
v.
Salas, 879 F.2d 530, 537-38 (9th Cir. 1989). Thus, under the
indepen-
dent source doctrine, "evidence seized pursuant to a subsequently
_________________________________________________________________
4 The district court later set aside the conviction on Count III of
the
indictment in light of Bailey v. United States , 116 S. Ct. 501
(1995),
which was decided after the jury's verdict but before the
sentencing hear-
ing. The government does not challenge this ruling.

                               4
issued warrant, although initially discovered during a search
follow-
ing an illegal entry, is admissible so long as `the search pursuant
to
warrant was in fact a genuinely independent source of the
information
and tangible evidence at issue.'" Walton v. United States, 56 F.3d
551, 554 (4th Cir. 1995) (quoting Murray, 487 U.S. at 542). In
Murray, the Court noted that a search pursuant to a warrant is not
an
independent search "if the agents' decision to seek the warrant was
prompted by what they had seen during the initial entry, or if
informa-
tion obtained during that entry was presented to the Magistrate and
affected his decision to issue the warrant." 487 U.S. at 542
(footnote
omitted).
The district court correctly concluded that the evidence seized in
Rogers' apartment pursuant to the search warrant was admissible
under the independent source doctrine. First, because the
investigators
had just witnessed Rogers possess crack and attempt to flee the
scene
of a crime, the decision to secure a warrant to search Rogers'
apart-
ment was assuredly not prompted by Investigator Sterling's observa-
tion of the items in plain view during his initial entry into the
apartment. Second, although the information obtained during the
allegedly unlawful entry was presented to the state magistrate in
the
search warrant application, that information did not affect the
magis-
trate's decision to issue the warrant, as Murray requires. See id.
In
assessing whether the information affected the decision to issue
the
warrant, the district court appropriately applied Franks v.
Delaware,
438 U.S. 154 (1978), which directs a court to examine the search
war-
rant affidavit absent the illegally obtained information to
determine
whether the untainted portion of the affidavit sets forth probable
cause. The district court concluded that the affidavit in this
case,
excluding Investigator Sterling's observations during his initial
entry
into Rogers' apartment, provided "more than a substantial basis of
a
probability that contraband was in" the apartment. (J.A. 120). This
conclusion is manifestly correct. The circumstances surrounding
Rog-
ers' attempted sale of crack to Haynes and Investigator Young,
which
culminated in Rogers' arrest, provided probable cause to believe
that
crack would be found in the apartment. In sum, because the informa-
tion obtained during the alleged illegal entry into Rogers'
apartment
affected neither the investigators' decision to seek the search
warrant
nor the state magistrate judge's decision to issue the search
warrant,
the evidence seized pursuant to the warrant was admissible under

                                 5
Murray. See Walton, 56 F.3d at 553-54 (evidence seized in garage
admissible under Murray where the information obtained during an
earlier alleged illegal warrantless entry of the garage neither
affected
the decision to seek the search warrant nor the decision to issue
it).

III

Rogers also contends that the district court erred when it
sentenced
him on the basis of possessing "crack" without determining that the
government had proven that the drugs involved in Count II were
"crack."5 Rogers concedes that he failed to raise this argument
below,
but nevertheless contends that the district court's failure to make
a
specific finding that Count II involved "crack" is plain error. We
dis-
agree.

Rule 52(b) of the Federal Rules of Criminal Procedure permits an
appellate court to correct an error not raised below if there is:
(1)
error, (2) that is plain, and (3) that affects substantial rights.
See
United States v. Olano, 507 U.S. 725, 732 (1993). If all these
require-
ments are met, we can exercise our discretion to correct the error
if
the error "seriously affect[s] the fairness, integrity or public
reputation
of judicial proceedings." Id. (citation and internal quotes
omitted).
_________________________________________________________________
5 In 1993, the Sentencing Commission amended the Sentencing Guide-
lines to include the following definition of cocaine base:

      "Cocaine base," for purposes of this guideline, means "crack."
      "Crack" is the street name for a form of cocaine base, usually
      prepared by processing cocaine hydrochloride and sodium bicar-
      bonate, and usually appearing in a lumpy, rocklike form.

United States Sentencing Guidelines Manual § 2D1.1 (emphasis
added).
Prior to 1993, some courts held that cocaine base under the
Sentencing
Guidelines included all forms of cocaine base, not just crack, see,
e.g.,
United States v. Jackson, 968 F.2d 158, 161-63 (2d Cir. 1992)
(forms of
cocaine base not pure enough to be crack still fall within
Sentencing
Guidelines for enhanced sentence), while other courts held that
cocaine
base meant crack, see, e.g., United States v. Shaw, 936 F.2d 412,
415-16
(9th Cir. 1991). The amended definition of cocaine base was promul-
gated so that other forms of cocaine base other than crack would be
treated as cocaine for sentencing purposes. See United States v.
Munoz-
Realpe, 21 F.3d 375, 376-77 (11th Cir. 1994).

                                 6
In this case, we will assume without deciding that the first three
prongs of Olano are met. Such an assumption is of no help to Rogers
because the assumed error does not seriously affect the fairness,
integrity, or public reputation of judicial proceedings. That Count
II
involved "crack" was undisputed below. Indeed, Count II of the
indictment refers to the drugs as "crack," (J.A. 12), and, at
sentencing,
Rogers never disputed that Count II involved 150 to 500 grams of
cocaine base, which means "crack" under the Sentencing Guidelines.
Because it was undisputed below that Count II involved "crack" and
because Rogers has set forth no plausible argument that Count II
did
not involve "crack," we are in no position to correct the assumed
for-
feited error. Cf. Johnson v. United States , 1997 WL 235156, at *7
(U.S. May 12, 1997) (declining to correct Gaudin error where the
evi-
dence of materiality was overwhelming and petitioner presented no
plausible argument that her false statement under oath was not
mate-
rial).
IV

Rogers raises two additional arguments that he contends should be
resolved in his favor. First, he contends that there is
insufficient evi-
dence in the record to support his convictions. Second, he contends
that the district court erred when it admitted certain evidence at
trial.
We have reviewed these assignments of error and find them to be
without merit. Accordingly, the judgment of the district court is
affirmed.

AFFIRMED
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