                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-4492
SAMUEL BROOKS, JR.,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
      for the Eastern District of Virginia, at Newport News.
               Henry C. Morgan, Jr., District Judge.
                             (CR-00-3)

                      Submitted: March 20, 2001

                       Decided: April 16, 2001

    Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Thomas W. Carpenter, THOMAS W. CARPENTER, P.C., Newport
News, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, Robert E. Bradenham II, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. BROOKS
                               OPINION

PER CURIAM:

   Samuel Brooks, Jr., was convicted by a jury of possessing more
than five grams of cocaine base (crack), in violation of 21 U.S.C.A.
§ 844(a) (West 1999). The district court imposed a sentence of sixty-
three months imprisonment. Brooks contests the district court’s denial
of his motion to suppress evidence seized from him pursuant to his
arrest on suspicion of assault. He also appeals his sentence, contend-
ing, first, that the district court’s application of the cross reference in
U.S. Sentencing Guidelines Manual § 2D2.1(b)(1) (1998), denied him
due process, and, second, that the district court erred in sentencing
him to more than one year imprisonment because the jury did not
determine that he possessed more than five grams of crack. We
affirm.

   Brooks was arrested on July 21, 1999, in the apartment of his girl-
friend, Monique Pyatt, after Pyatt called 911 and reported that she had
been assaulted by him. In a search of Brooks’ person incident to the
arrest, police seized 13.11 grams of crack, a loaded 9mm semiauto-
matic handgun, $2375 in cash, and a pager. Brooks was later charged
in federal court with possession of crack with intent to distribute, 21
U.S.C.A. § 841(a) (West 1999), and carrying a firearm during and in
relation to a drug trafficking crime.* 18 U.S.C.A. § 924(c) (West
2000).

   Brooks moved to suppress the evidence obtained in the search on
the ground that the warrantless arrest was made without probable
cause and the resulting search was unlawful. At the suppression hear-
ing, the arresting officer testified that Pyatt invited the officers who
answered her 911 call into her apartment, stated that her boyfriend
had assaulted her, and indicated that Brooks was her boyfriend and
the father of her child although he did not live in the apartment. The
officer could see bleeding scratches on Pyatt’s face and neck. The
officer testified that he believed he had probable cause to believe that
Brooks had assaulted Pyatt, and that under the circumstances he had

   *Brooks was never charged with assault because Pyatt subsequently
refused to cooperate with authorities.
                       UNITED STATES v. BROOKS                          3
authority to arrest Brooks. Both Pyatt and Brooks testified that
Brooks had not assaulted Pyatt and that Pyatt neither told police that
he had nor invited them into her apartment. The district court found
that the officer’s account was credible, that the arrest was therefore
lawful, and that the evidence seized incident to the arrest was admissi-
ble. On appeal, Brooks claims that the evidence seized from his per-
son was inadmissible because the officers had neither a search
warrant nor an arrest warrant, nor probable cause to arrest him. For
the reasons explained below, we find no error in the district court’s
ruling.

   While evidence seized in violation of the Fourth Amendment is
generally inadmissible, United States v. Seidman, 156 F.3d 542, 548
(4th Cir. 1998) (citing Wong Sun v. United States, 371 U.S. 471, 484-
85 (1963)), a lawful custodial arrest for any offense gives the police
authority to conduct a full search of the arrestee’s person. United
States v. Robinson, 414 U.S. 218, 235 (1973). The lawfulness of
arrests by state officers for state offenses is determined by state law,
as long as there is no violation of the federal constitution. Ker v. Cali-
fornia, 374 U.S. 23, 37 (1963). Probable cause for a warrantless arrest
is defined as "facts and circumstances within the officer’s knowledge
that are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense." United
States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998) (citation omitted).
The determination that particular facts gave rise to probable cause for
an arrest is a legal question reviewed de novo. Id. at 770. The district
court’s factual determinations are reviewed for clear error, id., and its
credibility determinations are not subject to review. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

   In Brooks’ case, the district court determined that the officer
believed he had authority to arrest Brooks after Pyatt told him Brooks
was the father of her child and that he had assaulted her, because the
officer could see physical evidence of an attack. Virginia law autho-
rizes an arrest under such conditions. A person alleged to have com-
mitted assault and battery against a family or household member may
be arrested without a warrant if the arrest is based on probable cause,
personal observation, or the reasonable complaint of a person who
witnessed the offense. Va. Code Ann. § 19.2-81.3(A) (Michie 2000).
4                      UNITED STATES v. BROOKS
A "family or household member" may be a person who has a child
in common with the person making the complaint, whether or not
they are married or have ever resided together. Va. Code Ann. § 16.1-
228(v) (Michie 1999). Therefore, the district court did not err in find-
ing that the officers reasonably believed that they had probable cause
to arrest Brooks. Because Virginia state law authorized an arrest
based on probable cause under these circumstances, the district court
did not abuse its discretion in finding that Brooks’ arrest was lawful
and that the evidence seized in the search incident to the arrest was
admissible.

   At trial, Brooks was acquitted of the two charged offenses—
possession of crack with intent to distribute and a violation of
§ 924(c). He was convicted of the lesser included drug offense of
knowingly possessing a controlled substance in violation of 21
U.S.C.A. § 844(a). For a first drug offense involving simple posses-
sion, § 844(a) prescribes a sentence of not more than one year impris-
onment unless the drug possessed is more than five grams of crack,
in which case the sentence is five to twenty years imprisonment. The
guideline applicable to a conviction under § 844(a) is USSG § 2D2.1.
However, a cross reference in USSG § 2D2.1(b)(1) directs that, if the
offense involves more than five grams of crack, USSG § 2D1.1
should be applied as though the defendant had been convicted of pos-
session of crack with intent to distribute. Over Brooks’ objections, the
district court applied the cross reference in calculating Brooks’ sen-
tence, thus increasing his base offense level from eight to twenty-six.
The court also made a two-level enhancement under § 2D1.1(b)(1) for
possession of a dangerous weapon during the offense. With an
offense level of twenty-eight and criminal history category I, Brooks’
guideline range was 63-78 months.

   Brooks maintains that the combined operation of § 844(a) and
§ 2D2.1 denied him due process and a fair trial because application
of the cross reference in § 2D2.1(b)(1) negated the jury’s finding that
he was not guilty of possessing crack with intent to distribute, and not
guilty of possessing a firearm in connection with a drug offense. We
disagree. Due process is not violated when the severity of a sentence
is determined by the amount or type of drug possessed. See Chapman
v. United States, 500 U.S. 453, 464-65 (1991). Congress has ratio-
nally decided that possession of five grams or more of crack is a seri-
                        UNITED STATES v. BROOKS                           5
ous offense warranting a more severe sentence than possession of an
equal quantity of other drugs. The cross reference in § 2D2.1(b)
merely implements the requirement of § 844(a) that possession of
more than five grams of crack be severely punished.

   Brooks also asserts that the cross reference is inconsistent with the
statutory scheme and the rest of the guidelines because Congress
intended simple possession of drugs in general to be punished less
severely than possession for distribution. This assertion is belied by
the five-to-twenty-year sentence prescribed in § 844(a) for a first
offense involving simple possession of five or more grams of crack.

   With respect to the firearm enhancement under § 2D1.1(b)(1) that
resulted from application of the cross reference, Brooks acknowl-
edges that this Court has upheld the enhancement where it is based
on conduct for which the defendant has been acquitted. See United
States v. Romulus, 949 F.2d 713, 716-17 (4th Cir. 1991). Although
the defendant in Romulus was convicted of possessing crack with
intent to distribute, this distinction is not significant unless application
of the cross reference was error. Because the cross reference was
properly applied, as discussed above, the firearm enhancement was
also correct.

   Last, we find nothing in the jury instruction on the lesser included
offense that could affect Brooks’ sentence in light of Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) (holding that any factor
that increases the statutory maximum sentence, other than a prior con-
viction, must be submitted to a jury and proved beyond a reasonable
doubt). Because Brooks failed to challenge the jury instructions at
trial, this issue is reviewed for plain error. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993). Brooks must
show that an error occurred, that the error was plain, and that the error
affected his substantial rights. Olano, 507 U.S. at 732.

   The indictment charged that Brooks possessed five or more grams
of crack with intent to distribute. In Instruction 11, the jurors were
instructed that before they could convict Brooks, the government had
to prove three elements beyond a reasonable doubt: (1) that Brooks
"possessed the controlled substance described in the indictment;" (2)
that Brooks knew the substance was a controlled substance; and (3)
6                      UNITED STATES v. BROOKS
that Brooks intended to distribute the controlled substance. The jury
was further instructed in Instruction 12 that, "[I]f the government has
proved elements 1 and 2 beyond a reasonable doubt, but did not prove
the 3rd element that the defendant had the intent to distribute the con-
trolled substance, then you may find the defendant guilty of the lesser
offense." Thus, to convict Brooks of the lesser included offense of
simple possession, the jurors were instructed that they had to find
beyond a reasonable doubt that he had "possessed the controlled sub-
stance described in the indictment." In United States v. Richardson,
233 F.3d 223, 230-31 (4th Cir. 2000), this Court found that an instruc-
tion worded in this way complied with Apprendi and with Jones v.
United States, 526 U.S. 227 (1999).

   Brooks attempts to distinguish Richardson by arguing that it did
not address a lesser included offense instruction. However, Instruc-
tions 11 and 12 must be read together and, taken together, they
require the jurors to find beyond a reasonable doubt that Brooks pos-
sessed more than five grams of crack as charged in the indictment
before they could convict him of simple possession. Because the jury
found that Brooks possessed more than five grams of crack, the dis-
trict court did not err in sentencing him to a term of more than one
year imprisonment.

   We therefore affirm the conviction and sentence. 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
