                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                AUG 30 2000
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 99-1573
                                                        (D.C. No. 99-CR-100-N)
 KEITH CARNES,                                           (District of Colorado)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, BRISCOE, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.


       Neither party has requested oral argument. After examining the briefs and

appellate record, this panel has determined unanimously that oral argument would not

materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.

R. 34.1(G). The case is therefore ordered submitted without oral argument.

       In the first count of a two-count indictment Keith Carnes (“Carnes”) was charged

with possessing with an intent to distribute crack cocaine in violation of 21 U.S.C. §



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
841(a)(1) and (b)(1)(A)(iii). In the second count, Carnes was charged with possessing

with an intent to distribute a mixture or substance containing a detectable amount of

cocaine (“powder cocaine”) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). By pre-

trial motion, Carnes filed a motion to suppress evidence seized by the Aurora Police in a

search of his motel room at the Motel 6, in Aurora, Colorado, and to suppress any

statements made by Carnes at that time, on the ground that such evidence was seized

without a warrant and in the absence of a valid consent. The room in question, No. 307,

was rented by Carnes who was accompanied by Shanae Whitmore (“Whitmore”). Acting

on consent given them by Whitmore, the Aurora police searched room 307 of the Motel 6.

The search of room 307 disclosed in a partially unzipped shaving kit approximately 100

grams of crack cocaine and in a separate white plastic bag, in a grocery sack,

approximately 126 grams of powder cocaine. After hearing, the district court granted

Carnes’ motion to suppress the use at trial of the crack cocaine found in the shaving kit,

but, at the same time, denied the motion to suppress as it related to the powder cocaine

found in the white plastic bag.1 Thereafter, pursuant to a plea agreement,2 the

government dismissed Count 1, and Carnes pled guilty to Count 2. Carnes now appeals



       1
        After hearing, the district court held that Whitmore had no authority to consent to
the search of the shaving kit, but that she did have authority to consent to the search of the
white plastic bag containing powder cocaine.

       In the plea agreement, Carnes was advised that the government at sentencing
       2

would assert that the amount of crack cocaine should be factored into the calculation of
Carnes’ total base offense level.

                                             -2-
the sentence imposed thereon. Accordingly, the propriety of the district court’s order as

it relates to Carnes’ motion to suppress is not involved in the present appeal. This is a

sentencing case.

       At sentencing, it was determined that the adjusted base offense level for an offense

involving 126 grams of powder cocaine was 15, which with criminal history category II

resulted in a sentencing guidelines range of 21-27 months imprisonment. However, after

factoring in the amount of crack cocaine found in the shaving kit (99.8 grams), the district

court determined that under United States Sentencing Guidelines § 1B1.3 Carnes’ total

offense level was 29, which with criminal history category II resulted in a sentencing

guideline range of 97-121 months. (Under 21 U.S.C. § 841(b)(1)(A)(iii), there is a 10

year (120 months) mandatory minimum sentence for possession of 99.8 grams of crack

cocaine with an intent to distribute.) At sentencing, Carnes’ counsel objected to factoring

in the amount of crack cocaine found in the shaving kit. The district court overruled that

objection, and sentenced Carnes to imprisonment for 97 months. Carnes appeals the

sentence imposed.

       On appeal, the parties agree that the only issue is whether the district court erred in

holding that the Fourth Amendment prohibition against unreasonable searches did not

preclude the court from considering the illegally obtained evidence, namely, 99.8 grams

of crack cocaine, in determining Carnes’ total offense level. Carnes claims it does. The

government claims it does not. We agree with the government.


                                             -3-
       In holding that the number of grams of crack cocaine found in the unzipped

shaving kit should be factored into a determination of Carnes’ total offense level, and that

such inclusion did not offend either the Sentencing Guidelines or the Fourth Amendment,

the district court spoke as follows:

                       5. I have previously discussed the legal issues
              presented when the Government attempts to use suppressed
              drugs for the purpose of enhancing a base offense level. See
              United States v. Gilmer, 811 F. Supp. 578, (D. Colo. 1993). I
              concluded as a general rule that illegally seized evidence
              could be used to set a base offense level unless the
              circumstances demonstrated an unacceptably high incentive
              for police to violate the Fourth Amendment. Id. at 584-86. I
              based this conclusion on the persuasive analysis of
              concurring opinions in United States v. McCrory, 930 F.2d
              63, 70 (D.C. Cir. 1991) (Silberman, J., concurring) and
              United States v. Jewel, 947 F.2d 224, 238 (7th Cir. 1991)
              (Easterbrook J., concurring). Although the Tenth Circuit has
              not squarely decided the issue presented, its cases are
              consistent with the McCrory and Jewell concurrences. See,
              e.g., United States v. Jessup, 966 F.2d 1354 (10th Cir. 1992).
                       6. The circumstances here do not support any finding
              that there is an unacceptably high incentive for police to
              violate the Fourth Amendment. There is no evidence that,
              when the search was conducted, the police had decided to
              present the case for prosecution in the federal system, where
              the quantity and nature of drugs seized can have a substantial
              and predictable impact on the sentence received. There is
              also no evidence that, if and when the case was presented,
              federal prosecution was probable or assured. Finally, it was
              pure happenstance that the crack cocaine was in a particular
              type of container and was therefore suppressed. Use of the
              suppressed evidence to set the base offense level provides
              little incentive for fourth amendment violations in these
              circumstances.

       As indicated, the only issue is whether under the circumstances of this case the

                                            -4-
district court erred in factoring into Carnes’ total offense level the 99.8 grams of crack

cocaine found in the partially unzipped shaving kit which the district court has previously

ruled was seized in violation of the Fourth Amendment. Congress has authorized a broad

review of an offender’s background in order to allow the sentencing judge to determine

an appropriate sentence. In this connection, 18 U.S.C. § 3661 provides that “No

limitation shall be placed on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the United States may

receive and consider for the purpose of imposing an appropriate sentence.” In deciding

whether the exclusionary rule should be extended to sentencing matters, a court should

analyze the issue in terms of whether the deterrent effect achieved by extending the rule

will out-weigh the detrimental effects of excluding reliable evidence which would assist

the sentencing judge in determining the appropriate sentence. United States v. Brimah,

214 F.3d 854, 857 (7th Cir. 2000); United States v. McCrory, 930 F.2d 63, 69 (D.C. Cir.

1991).

         As stated, the district judge in the instant case concluded that the facts and

circumstances did not indicate that in seizing the crack cocaine the Aurora police had an

“unacceptably high incentive . . . to violate the Fourth Amendment” and that such being

the case he would follow the “general rule that illegally seized evidence could be used to

set a base offense level . . . .” We are in general accord with his analysis of the matter. In

this regard, we note that the seizure of the crack cocaine and the powder cocaine occurred


                                              -5-
in the same search, and that there was no second and subsequent search for drugs that

would possibly enhance Carnes’ total offense level. There is nothing to indicate that in

the search of the unzippered shaving kit the purpose of the police officers was to enhance

Carnes’ total base offense level.

       In United States v. Jessup, 966 F.2d 1354 (10th Cir. 1992), we held that a district

court could deny a defendant credit for acceptance of responsibility under the Sentencing

Guidelines even though the information upon which the district court based its denial was

obtained in violation of state law. In so doing we spoke as follows:

                  This circuit has followed the approach of balancing the
               effect of applying the exclusionary rule at sentencing against
               the costs of impairing effective and suitable punishment of
               proven offenders and unduly complicating sentencing
               procedures. See United States v. Graves, 785 F.2d 870, 873
               (10th Cir. 1986) (pre-sentencing guidelines case). As a
               general rule, the Graves court believed the extension of the
               exclusionary rule to sentencing proceedings would have an
               insignificant deterrent effect and would intolerably delay and
               disrupt sentencing proceedings by requiring the sentencing
               judge to determine whether every item of information relied
               on had a lawful origin.

Id. at 1356.

       We are in general accord with the district court’s handling of this matter.3


       3
        In an unpublished opinion, United States v. Thurmond, 1998 WL 163371 (D. Kan.
Apr. 8, 1998), we spoke as follows:
       Ordinarily, the remedy for a violation of a defendant’s Sixth Amendment
       right to counsel is the exclusion at trial of any improperly obtained evidence.
       Here, however, the evidence was used not at trial, but at sentencing.
       Consistent with other circuits, we have held that the exclusionary rule

                                            -6-
       Judgment affirmed.4


                                           Entered for the Court


                                           Robert H. McWilliams
                                           Senior Circuit Judge




       generally does not apply to exclude improperly obtained evidence at
       sentencing, at least so long as there is no indication the evidence was
       illegally obtained to secure an increased sentence. Id. at **2 (citations
        omitted).
       4
         In affirming on the basis of the district court’s analysis of the matter, we decline
to hold, as we are asked to do by the government, that evidence seized in violation of the
Fourth Amendment is always admissible at sentencing. We need not address that matter
in this case.

                                             -7-
