                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2006

USA v. Cubbage
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3652




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-3652


                           UNITED STATES OF AMERICA

                                           v.

                              DEMETRIUS CUBBAGE,
                                          Appellant


                     Appeal from the United States District Court
                               for the District of Delaware
                           (D.C. Criminal No. 02-cr-00044)
                    District Judge: Honorable Joseph J. Farnan, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 4, 2006

                   Before: RENDELL and AMBRO, Circuit Judges
                           and BAYLSON*, District Judge.

                              (Filed: December 11, 2006)


                              OPINION OF THE COURT




* Honorable Michael M. Baylson, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.


RENDELL, Circuit Judge.
       Demetrius Cubbage was convicted by a jury of possession with intent to distribute

more than fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) &

(b)(1)(A)(iii). The District Court sentenced him to 210 months imprisonment, 5 years

supervised release, and a $100 special assessment. Cubbage appeals both his conviction

and sentence. He argues that the District Court improperly admitted evidence and

statements obtained through a police search of Cubbage’s apartment, improperly

instructed the jury on the concept of joint possession, and erred in sentencing Cubbage

based on a judicial finding that Cubbage possessed more than 700 grams of “crack”

cocaine. We have jurisdiction over Cubbage’s appeal pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742 and we will affirm.

                                              I.

       Cubbage first challenges the District Court’s denial of his motion to suppress

evidence obtained from a police search of his apartment on the ground that the police did

not comply with the knock and announce requirements of the Fourth Amendment. The

District Court found that the police were justified in dispensing with the knock and

announce requirement in this case because there was a reasonable probability that the

people inside Cubbage’s apartment were armed and that the police officers could be in

danger of physical peril. The Court reached this conclusion based on the awareness of the

police officers, prior to the execution of the warrant, of the facts that: (1) Cubbage had

been previously convicted of carrying a concealed deadly weapon, (2) high level drug


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dealers were in the apartment earlier on the day of the search, (3) when the officers exited

their vehicle, people in the apartment complex in the area of Cubbage’s apartment began

to scream “5-0 is here, 5-0 is here,” (4) when the officers were exiting their vehicle, a

woman on a cellular phone outside the apartment complex said, “Girl, the police out here.

They are getting ready to go into somebody’s house,” and (5) a half wall at the top of the

stairs in Cubbage’s apartment obscured the officers’ view into the living room as they

stood in the entryway at the bottom of the staircase. Cubbage does not challenge the

District Court’s determination that these circumstances were known to the officers at the

time of the search, but rather argues that these circumstances did not justify dispensing

with the knock and announce requirement.

       We review the District Court's factual findings for clear error and exercise plenary

review over the District Court's application of law to the facts of this case. United States

v. Robertson, 305 F.3d 164, 168 (3d Cir. 2002). “In order to justify a ‘no-knock’ entry,

the police must have a reasonable suspicion that knocking and announcing their presence,

under the particular circumstances, would be dangerous or futile, or that it would inhibit

the effective investigation of the crime by, for example, allowing the destruction of

evidence.” Richards v. Wisconsin, 520 U.S. 385, 394 (1997). We agree, under the

totality of the circumstances known to the officers executing the warrant, that the officers

had a reasonable suspicion that knocking and announcing their presence prior to

executing the warrant at Cubbage’s apartment would be dangerous. The warnings



                                              3
shouted by Cubbage’s neighbors prior to the search, Cubbage’s prior conviction for

possession of a deadly weapon, the presence of known drug dealers in the apartment

earlier in the day, and the unfavorable physical layout of the apartment together gave rise

to a reasonable suspicion that knocking and announcing prior to execution of the warrant

would be dangerous. See United States v. Cline, 349 F.3d 1276, 1290 (10th Cir.

2003)(affirming finding of exigent circumstances where (a) prior search of defendant’s

residence had revealed firearms, (b) there was likelihood that defendant used counter-

surveillance equipment and could be aware of their approach, (c) the police approach had

taken longer than anticipated, and (d) people in the vicinity had observed the police

approach and might have warned defendant). Therefore, we find no error in the District

Court’s denial of Cubbage’s motion to suppress the evidence obtained from the search of

his apartment.

                                             II.

       Next, Cubbage argues that the District Court erred by instructing the jury on the

concept of joint possession. Cubbage contends that there was insufficient evidence in the

record to justify an instruction on joint possession because the evidence, if believed,

established that Cubbage possessed the cocaine base exclusively and not jointly with

anyone else. We note that it is counterintuitive for a defendant to seek reversal of his

conviction based on the argument that the evidence presented at trial, if believed,

established that he possessed the drugs recovered from his apartment solely, rather than

jointly. Cubbage contends, however, that the giving of a joint possession instruction

                                              4
under these circumstances is reversible error. Cubbage objected to the instruction at the

charge conference and after the District Court instructed the jury.

       In reviewing jury instructions, we review the trial court's charge for abuse of

discretion, considering whether, in light of the evidence, the charge as a whole fairly and

adequately submitted the issues in the case to the jury. United States v. Zehrbach, 47

F.3d 1252, 1264 (3d Cir. 1995)(en banc). We will reverse if “the instruction was capable

of confusing and thereby misleading the jury.” Id.(quoting Bennis v. Gable, 823 F.2d

723, 727 (3d Cir. 1987)). At Cubbage’s trial, witnesses testified that the cocaine base

seized from Cubbage’s apartment was found in two locations: inside Cubbage’s pant

pocket and inside a helmet cover that Cubbage was seen removing from the trunk of his

car prior to the search and that was later found under a cushion of the love seat in

Cubbage’s living room. Cubbage is correct that the evidence presented at trial could

support a finding that he alone possessed the drugs, since the drugs were found in his

clothing and concealed in the furniture of his living room.

       However, the jury could have also concluded from the evidence presented that

some of the drugs were possessed jointly by Cubbage and other people in the apartment.

Seven other men were in the apartment at the time that the drugs were seized, including

one man sitting on the couch near to the love seat in which a package of drugs was

concealed. There was also a blue coat found on the love seat, which was not identified as

belonging to Cubbage. At the time that the search was conducted, the drugs found in the

love seat were in closer proximity to the men in the living room than they were to

                                             5
Cubbage, who was showering in a locked bathroom in the apartment. The close physical

proximity of these other people, and of personal property not identified as belonging to

Cubbage, to the drugs in the love seat could have led the jury to conclude that Cubbage

was not in exclusive possession of the drugs in the love seat at the time of the seizure.

See Johnson v. United States, 506 F.2d 640, 643-44 (8th Cir. 1974)(finding no error in

joint possession instruction because drugs were found in apartment that defendant shared

with his sister and because another man was present in apartment and had access to drugs

at the time they were seized). Considering the jury charge as a whole and the capacity of

the joint possession instruction to confuse or mislead the jurors, we find no error in the

District Court’s instructing the jury on the theory of joint possession in this case.

                                             III.

       Finally, Cubbage argues that the District Court erred by sentencing him based on

facts that were proved to the judge by a preponderance of the evidence, rather than proved

to a jury beyond a reasonable doubt. In the alternative, Cubbage argues that the

government failed to prove by a preponderance of the evidence that the cocaine base

Cubbage possessed was “crack” cocaine. After Booker, we review a district court’s

calculation of the sentencing range under the Guidelines for legal error, as part of our

review of the reasonableness of the sentence imposed. United States v. Jackson, __ F.3d

__, 2006 WL 3247919, at *4 (3rd Cir. Nov. 9, 2006).

       Cubbage argues that the District Court was not permitted to make findings as to



                                              6
the weight and nature of the drugs by a preponderance of the evidence because these

judicial findings resulted in a massive jump in Cubbage’s sentencing range under the

Guidelines. We disagree. Because the Sentencing Guidelines are now advisory, rather

than mandatory, judicial fact finding that results in an increase in a defendant’s maximum

sentence under the Guidelines is not unconstitutional. “[T]he clear intent of the remedial

opinion in Booker was for the process of calculating the Guidelines to continue operating

as before.” Jackson, 2006 WL 3247919, at *3.

       We also reject Cubbage’s argument that the government failed to prove by a

preponderance of the evidence that the “cocaine base” he possessed was “crack” cocaine.

Although the government has the burden to prove that the particular form of cocaine base

possessed by Cubbage was “crack” in order to trigger the enhanced Guidelines penalties

for “crack” possession, United States v. James, 78 F.3d 851, 855 (3d Cir. 1995), the

testimony of an experienced law enforcement officer can be sufficient to prove that the

substance is “crack” cocaine, United States v. Roman, 121 F.3d 136, 141 (3d Cir. 1997).

       At Cubbage’s trial, four law enforcement officers testified that the drugs found in

Cubbage’s apartment were, or appeared to be, “crack cocaine.” Detective Pires testified

that he found “a clear plastic bag that contained a yellowish-white rocklike substance that

appeared to be crack cocaine” in Cubbage’s pants pocket. Detective Mailey described the

package of drugs found in the love seat in Cubbage’s living room as “crack cocaine.”

Detective Boney also testified that the drugs found in Cubbage’s love seat “appeared to

me to be crack cocaine.” Finally, Detective Matthews described the drugs seized from

                                             7
the love seat and from Cubbage’s pants pocket as “crack cocaine.” Detective Pope, who

testified for the government as an expert on the distribution, price and packaging of

“crack cocaine base,” also identified the drugs found in the apartment as “crack cocaine.”1

In addition, the government presented the testimony of a forensic chemist, who stated that

the drugs found in Cubbage’s apartment contained a mixture of “cocaine in the base form

also known as crack” and cocaine hydrochloride. Cubbage challenged the chemist’s

testimony with the testimony of another forensic chemist, who concluded that it could not

be determined from the tests performed by the government chemist whether the cocaine

tested was cocaine salt or cocaine base.

       At sentencing, the District Court credited the trial testimony of the police

detectives and, based on their testimony, found that the government had met its burden to

prove that the cocaine base recovered from the apartment was “crack” cocaine. Cubbage

objected to this finding prior to and at the time of sentencing. Given the detectives’ years

of experience with the appearance and packaging of crack cocaine and the lack of

evidence presented to contradict their testimony that the substances recovered were, or

appeared to be, “crack” cocaine, we find no error in the District Court’s finding that the



       1
        Detective Pope was asked at trial to identify the substance “in Government
Exhibits 1 and 15.” It appears that the transcript contains an error and that the question
actually posed was as to the identity of the substances in Government Exhibits 6 and 15,
which were the cocaine substances recovered from Cubbage’s apartment. All of the prior
questions in this line of inquiry related to Government Exhibits 6 and 15, and it would
make little sense to ask Detective Pope to identity the substance in Government Exhibit 1,
which was a Tanita digital scale.

                                              8
government met its burden to prove that the cocaine base possessed by Cubbage was

“crack” cocaine.

                                          IV.

      Accordingly, for the reasons set forth above, we will affirm Cubbage’s conviction

and sentence.




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