                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5096



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


CHARLES T. TURNER,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:04-cr-00009)


Submitted:   November 30, 2007         Decided:     February 14, 2008


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Melissa W. Friedman, Anthony F. Anderson, ANDERSON & FRIEDMAN,
Roanoke, Virginia, for Appellant. John L. Brownlee, United States
Attorney, R. Andrew Bassford, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Charles Tyrone Turner appeals his jury convictions and

322-month sentence for possession with intent to distribute cocaine

base in violation of 21 U.S.C.A. § 841 (West 2000 & Supp. 2007)

(Count Two); possession of a firearm during and in relation to a

drug trafficking crime in violation of 18 U.S.C.A. § 924(c) (West

2000 & Supp. 2007)(Count Three); and being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1)(2000) (Count

Four).1    He challenges the district court’s denial of his motion to

suppress evidence, his designation as an armed career criminal, and

his sentence.        We find no error in the court’s denial of Turner’s

motion to suppress or in his designation as an armed career

criminal, and we affirm Turner’s convictions.                   However, because we

conclude the erroneous calculation of Turner’s guideline range

under     the    U.S.     Sentencing        Guidelines   Manual     (“USSG”)   (2005)

constitutes plain error, we vacate Turner’s sentence and remand for

resentencing.

(1) Motion to Suppress

                During     the     investigation    of    the   drug   distribution

activities of Turner and his neighbor, Hugo Bibbs, Investigator

Tony McFadden requested a search warrant to search Turner’s home.

In   requesting          the     warrant,    McFadden    provided    the   following


     1
      Turner was also convicted of conspiracy to distribute cocaine
base, but the court granted the Government’s motion at sentencing
and dismissed the conspiracy count.

                                            - 2 -
information.        Within    the   prior   seventy-two     hours   a   reliable

confidential informant went to Bibbs’ residence.                The informant

observed a person give Bibbs money and ask for cocaine.               Bibbs took

the money, went across the street to Turner’s house, and returned

with cocaine.       Other confidential informants (CIs) had gone to

Bibbs’ house to purchase drugs in the recent past.                       The CIs

reported that Bibbs went across the street, but returned saying he

could not obtain any drugs because Turner was not home. On the

occasions of the CIs’ attempted purchases, McFadden personally

observed Bibbs leave his house, go to Turner’s residence, and

return as described by the CIs.

              McFadden’s affidavit additionally provided information

about   the    reliable      confidential     informant,    stating     that   the

informant     had   provided    information     regarding    drug   involvement

against his or her own penal interests, was familiar with the

appearance of cocaine, and had provided information during the past

two years that had directly led to the arrests and convictions of

drug offenders.      McFadden stated that the CIs also gave statements

against their penal interests and were working independently of the

reliable confidential informant.

              At the hearing on the motion to suppress, McFadden

testified that approximately two hours after obtaining the warrant,

police officers conducted a controlled buy from Bibbs. A CI gave

Bibbs marked bills.       Bibbs took the money, went across the street


                                      - 3 -
to Turner’s house and returned with cocaine. The officers executed

the search warrant after the completion of the controlled buy and

found a large amount of currency, including the marked bills used

in the controlled buy, digital scales, firearms, and approximately

thirty-five grams of cocaine base.            The district court denied the

motion   to    suppress,     concluding    that   the   search     warrant    was

supported by probable cause and the police officers relied on it in

good faith.

              Turner argues that the warrant was not supported by

probable cause nor was the evidence admissible under the good faith

exception to the exclusionary rule.           When a party challenges both

the probable cause determination and the conclusion that the good

faith rule applies, a reviewing court will ordinarily address the

good faith determination first, unless the case involves the

resolution of a novel question of law necessary to provide guidance

to police officers and magistrate judges.               See United States v.

Legg, 18 F.3d 240, 243 (4th Cir. 1994).

              Evidence seized pursuant to a defective warrant will not

be   suppressed    unless:    (1)    the   affidavit    contains    knowing    or

reckless falsity; (2) the magistrate acts as a rubber stamp for the

police; (3) the affidavit does not provide the magistrate with a

substantial basis for determining the existence of probable cause;

or (4) the warrant is so facially deficient that an officer could

not reasonably rely on it.          United States v. Wilhelm, 80 F.3d 116,


                                      - 4 -
121 (4th Cir. 1996).        The crucial element determining probable

cause is “whether it is reasonable to believe that the items to be

seized will be found in the place to be searched.”                   United

States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993).          Information

must link criminal activity to the place to be searched.             Id. at

1583.

     Turner contends the police officers could not have reasonably

relied on the warrant because it was facially lacking probable

cause. However, McFadden’s affidavit connected both Turner and his

residence to drug trafficking.          The fact that both the magistrate

issuing    the   warrant    and   the    district   court   reviewing   the

sufficiency of the warrant concluded that there was probable cause

to search is further evidence of the objective good faith of the

officers in executing the warrant.           See Lalor, 996 F.2d at 1583

(finding significant to a determination of good faith that two

judicial   officers   had    concluded     that   the   affidavit   provided

probable cause to search).        We conclude that the warrant was not

facially deficient so as to render Investigator McFadden’s reliance

upon it unreasonable, the affidavit provided a substantial basis

for a finding of probable cause, and the district court did not err

in denying Turner’s motion to suppress.

(2) Armed Career Criminal Designation

           Turner contends that the predicate convictions used for

armed career criminal enhancement purposes must be alleged in the


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indictment and found by a jury beyond a reasonable doubt.                          This

argument, however, is foreclosed by controlling circuit precedent.

In United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir.), cert.

denied, 546 U.S. 1010 (2005), this court determined that prior

convictions used as a basis for armed career criminal enhancement

need       not    be   charged    in   the    indictment       nor   proven   beyond    a

reasonable doubt.            Moreover, Turner was properly notified in the

Presentence Report (“PSR”) of the probation officer’s determination

that       he    qualified   as   an    armed      career   criminal.     See   United

States v. Foster, 68 F.3d 86, 89 (4th Cir. 1995)(there is no

pretrial notice requirement attendant to guidelines enhancements,

such as the armed career criminal enhancement, USSG § 4B1.4, under

which Turner’s sentence was enhanced).2

(3) Sentencing

                 For   the   first     time   on     appeal,   Turner   contends   the

district court improperly calculated his guidelines range.                             In

imposing sentence after Booker,3 sentencing courts must calculate

the appropriate advisory guidelines range by making any necessary


       2
      We reject Turner’s argument that because he was informed at
his arraignment that he was subject to a maximum penalty of ten
years’ imprisonment on the felon in possession count, notification
in the PSR that he was subject to enhanced sentencing as an armed
career criminal was inadequate. At the arraignment, Turner pleaded
not guilty and availed himself of all of his constitutional trial
rights.    He was timely informed of the probation officer’s
assessment that the armed career criminal enhancement applied
before he was sentenced, and had the opportunity to object.
       3
        United States v. Booker, 543 U.S. 220 (2005).

                                             - 6 -
factual findings.         United States v. Moreland, 437 F.3d 424, 432

(4th Cir. 2006), cert. denied, 126 S. Ct. 2054 (2006).                    The court

should then consider the resulting advisory guidelines range in

conjunction with the factors set out in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2007) and determine an appropriate sentence.                    United

States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).                   Issues not

raised in the district court are reviewed for plain error.                   United

States    v.    Hughes,   401    F.3d    540,   547    (4th    Cir.   2005).       To

demonstrate plain error, an appellant must establish that an error

occurred, that it was plain, and that it affected his substantial

rights.    Hughes, 401 F.3d at 547-48.

               Turner   was    sentenced    under     the    provisions     of   USSG

§ 4B1.4, which gives effect to 18 U.S.C. § 924(e) and provides

enhanced   penalties      for    those     convicted    of    being   a    felon   in

possession under certain circumstances.                 The probation officer

applied sections 4B1.4(b)(3)(A) and (c)(2), which provide harsher

penalties to those who possess a firearm in connection with a drug

trafficking offense.          Under these sections, Turner’s offense level

was thirty-four, his criminal history category was VI, and the

resulting guidelines range for Counts Two and Four was 262 to 327

months.    He was sentenced to 262 months plus a consecutive sixty

month sentence for the § 924(c) violation (Count Three).

               However, Application Note 2 to USSG § 4B1.4 states that

“if a sentence under this guideline is imposed in conjunction with


                                        - 7 -
a sentence for conviction under . . . 18 U.S.C. § 924(c), do not

apply either subsection (b)(3)(A) or (c)(2).”            Because a sentence

under § 924(c) was imposed, Turner should have had an offense level

of 33, a criminal history category of IV, and a guidelines range of

188   to    235   months    on   Counts     Two   and   Four.         See    USSG

§§ 4B1.4(b)(3)(B), (c)(3).

            Turner contends, and the Government concedes, that the

improper calculation of his guidelines range was plain error.                  We

agree.     Accordingly, we vacate Turner’s sentence on this basis and

remand for resentencing.4        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 IN PART;
                                             VACATED AND REMANDED IN PART




      4
      Turner also contends the district court improperly applied a
presumption of reasonableness to a sentence within the guidelines
range. We find no such error.

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