13-2068
United States v. Love

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1
and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 10th day of February, two thousand sixteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         DENNIS JACOBS,
         RICHARD C. WESLEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                           Cross-Appellant-Appellee,

                           v.                                  No. 13-2068, 13-3490, 13-3032

TINA L. HOLLEY,

                           Defendant,

WARREN LOVE,

                     Defendant-Appellant-Cross-Appellee.
________________________________________________

For Cross-Appellant-
Appellee:                         JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for
                                  William J. Hochul, Jr., United States Attorney, Buffalo, NY.

For Defendant-Appellant-
Cross-Appellee:                   JERALD BRAININ, Los Angeles, CA.

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       Appeal from the United States District Court for the Western District of New York

(Larimer, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

       Defendant Warren Love appeals from a judgment of conviction, entered on August 6,

2013, following a jury trial, by the United States District Court for the Western District of New

York (Larimer, J.), on one count of possession with intent to distribute cocaine base in violation

of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C), one count of use of a premises to manufacture,

distribute and use a controlled substance in violation of 21 U.S.C. § 856(a)(1), one count of

possession of firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. §

924(c)(1), and one count of being a felon in possession of firearms and ammunition in violation

of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal. For the reasons set forth below,

we affirm the judgment of the district court.1

       First, Love argues that the delay between his indictment on June 15, 2010 and the

commencement of his trial on December 3, 2012 violated his Sixth Amendment right to a speedy

trial. In evaluating constitutional speedy trial claims, courts weigh the four factors set forth by

the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530–32 (1972): “(1) the length of the

delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to

the trial; and (4) whether the defendant was prejudiced by the failure to bring the case to trial

more quickly.” United States v. Ghailani, 733 F.3d 29, 42 (2d Cir. 2013) (quoting United States

v. Cain, 671 F.3d 271, 296 (2d Cir. 2012)).
1
  We address Love’s arguments relating to the Speedy Trial Act, 18 U.S.C. § 3161, in a separate
opinion filed concurrently with this summary order. The factual and procedural background of
this case is summarized therein.

                                                  2
       Because Love did not raise his constitutional speedy trial claim in the district court, this

Court reviews only for plain error. See United States v. Abad, 514 F.3d 271, 274 (2d Cir. 2008)

(per curiam). Under the plain error standard, the defendant has the burden to demonstrate that

“(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute;

(3) the error affected the appellant’s substantial rights, which in the ordinary case means it

affected the outcome of the district court proceedings; and (4) the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.” Ghailani, 733 F.3d at 52 (quoting

United States v. Marcus, 560 U.S. 258, 262 (2010)).

       In this case, the length of the delay weighs in Love’s favor. In addition, Love suffered

cognizable prejudice in the form of lengthy pre-trial incarceration, as well as the possibility,

present in any case where the delay is lengthy, “that the [accused]’s defense will be impaired by

dimming memories and loss of exculpatory evidence.” Doggett v. United States, 505 U.S. 647,

654 (1992) (quoting Barker, 407 U.S. at 532) (alterations omitted). However, the majority of the

delay was attributable to motion practice by Love and his co-defendant Tina Holley, not to any

bad faith or negligence on the part of the government. Furthermore, although Love objected to

the adjournment of his trial date, he failed to preserve his Sixth Amendment speedy trial claim,

and he continued to file motions that led to additional delay. Because the cause of the delay is a

critical factor and because Love has not demonstrated that he suffered any specific prejudice at

trial, we cannot conclude that any error was “clear or obvious.” Ghailani, 733 F.3d at 52.

Accordingly, we find no plain violation of Love’s Sixth Amendment right to a speedy trial.

       Second, Love argues that the district court erred by denying his pretrial motion to

suppress evidence seized from the first floor apartment at 399 Lake Avenue in Rochester, New

York on April 6, 2010. He argues that the affidavit in support of the warrant application failed to



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establish probable cause because it mistakenly identified the apartment to be searched as

“Apartment A,” when in fact the first floor apartment is Apartment C, and because the

application did not specify in which apartment the controlled buys of crack cocaine occurred.

        “To establish probable cause to search a residence, two factual showings are necessary —

first, that a crime was committed, and second, that there is probable cause to believe that

evidence of such crime is located at the residence.” United States v. Travisano, 724 F.2d 341,

345 (2d Cir. 1983). Probable cause “is demonstrated where the totality of the circumstances

indicates a fair probability that contraband or evidence of a crime will be found in a particular

place.” United States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011) (quoting Walczyk v. Rio, 496 F.3d

139, 156 (2d Cir. 2007)). In reviewing a district court’s assessment of a search conducted

pursuant to a warrant, we review findings of historical fact for “clear error” but we “analyze de

novo the ultimate determination of such legal issues as probable cause. . . .” Id. at 93 (quoting

United States v. Smith, 9 F.3d 1007, 1011 (2d Cir. 1993)).

        In this case, the district court did not err in denying Love’s suppression motion. We have

held that a “slight variance” between the description of the premises to be searched and the

actual premises does not “make the warrant void on its face, particularly when the agents clearly

knew which apartment they were to search.” United States v. Campanile, 516 F.2d 288, 291 (2d

Cir. 1975). In this case, although it is true that the affidavit in support of the warrant

misidentified the first floor apartment as “Apartment A,” it also contained a detailed physical

description that accurately identified the premises to be searched. See Velardi v. Walsh, 40 F.3d

569, 576 (2d Cir. 1994) (“Warrants have been upheld despite ‘technical errors,’ such as an

incorrect street address, when the possibility of actual error is eliminated by other information,

[such as] a detailed physical description in the warrant itself. . . .”). That physical description was



                                                   4
sufficient to create the “required nexus between the items sought and the ‘particular place’ to be

searched. . . .” Clark, 638 F.3d at 94 (quoting Stanford v. Texas, 379 U.S. 476, 481 (1965)).

Furthermore, contrary to Love’s contention that the affidavit did not identify the apartment in

which the controlled purchases of crack cocaine were made, the affidavit’s statement that the

purchases occurred in “the apartment,” read in context, clearly refers to the specific premises

described in the affidavit. Accordingly, Love’s Fourth Amendment claim lacks merit.

       Third, Love raises various challenges to his sentence. He argues that the district court

violated the Ex Post Facto Clause of the United States Constitution by applying a two-level

enhancement for maintaining a premises for distributing a controlled substance pursuant to

Section 2D1.1(b)(12) of the United States Sentencing Guidelines (“U.S.S.G” or the

“Guidelines”), which was enacted after he committed the relevant conduct. The Guidelines direct

courts to apply the version of the Guidelines Manual in effect on the date that the defendant is

sentenced unless it would violate the Ex Post Facto Clause, in which case courts should use the

Guidelines Manual in effect on the date the offense was committed. Id. § 1B1.11 (2015). A

sentencing court commits an ex post facto violation when it sentences a defendant “under

Guidelines promulgated after he committed his criminal acts and the new version provides a

higher applicable Guidelines sentencing range than the version in place at the time of the

offense.” Peugh v. United States, 133 S. Ct. 2072, 2078 (2013). In analyzing whether application

of the Guidelines violates the Ex Post Facto Clause, the court examines the “entire version of the

guidelines,” and not “one provision of those guidelines in isolation.” United States v. Keller, 58

F.3d 884, 890 (2d Cir. 1995), abrogated on other grounds by United States v. Mapp, 170 F.3d

328, 338 n.15 (2d Cir. 1999).




                                                 5
       Love is correct that the two-level enhancement for maintaining a premises became

effective after he committed his offense. However, the 2012 Guidelines also reduced the base

offense level applicable to the drug quantity found in this case by two levels. Compare U.S.S.G.

§ 2D1.1(c)(8) (2012) with U.S.S.G. § 2D1.1(c)(7) (2009). Accordingly, although the calculation

would have been different, the total offense level and applicable Guidelines range under both

versions of the Guidelines is the same, and there is no ex post facto violation.

       Love also argues that that the district court’s application of the two-level enhancement

for “maintain[ing] a premises for the purpose of manufacturing or distributing a controlled

substance,” U.S.S.G. § 2D1.1(b)(12) (2012), constituted procedural error because there was

insufficient support for this enhancement in the record. The application note to subsection

2D1.1(b)(12) instructs the court to consider factors including “(A) whether the defendant held a

possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the

defendant controlled access to, or activities at, the premises.” Id. cmt. n.17. We review factual

findings at sentencing for clear error, and we give “due deference” to the district court’s

application of the Guidelines to the facts. United States v. Huerta, 371 F.3d 88, 91 (2d Cir. 2004)

(per curiam) (quoting 18 U.S.C. § 3742(e)).

       At trial, the jury convicted Love on the substantive charge that he did “knowingly open,

lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of

manufacturing, distributing, or using any controlled substance.” 21 U.S.C. § 856(a)(1). The

government’s evidence in support of that charge showed that Love was arrested in or near the

open doorway to the apartment. In the apartment, the officers found Love’s shoes, mail

addressed to Love (albeit addressed to his home address at a different location), and a set of keys

that included keys to the apartment and to Love’s residence. In addition, Love had unrestricted



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access to the apartment, and was the only adult present at the time the search was executed. This

evidence is sufficient to support a finding that Love controlled access to the apartment, even if he

lacked a “possessory interest.” U.S.S.G. § 2D1.1(b)(12), cmt. n.17.

       Furthermore, inside the apartment, the officers found an unloaded handgun on the living

room coffee table, a bulletproof vest next to the living room sofa, a man’s hooded sweatshirt

layered over a bulletproof vest in the bedroom, a loaded handgun inside a pocket of the

sweatshirt, ammunition, a digital scale, Ziploc baggies, a glass beaker, boxes of baking soda (an

ingredient commonly used to manufacture crack cocaine), 19.9 grams of cocaine base, 16

baggies containing a total of 2.4 grams of crack cocaine, and a Ziploc bag containing 82.2

ounces of marijuana. This evidence supports a finding that the manufacture and distribution of

controlled substances was one of the primary uses of the apartment. Thus, the evidence was

sufficient to support application of the sentencing enhancement, even if, as Love argues, the

sentencing enhancement applies to a narrower range of conduct than does the substantive

offense.

       Love further argues, for the first time on appeal, that the district court erred by

calculating his base offense level for the felon-in-possession charge as twenty-four, rather than

twenty. However, even if Love is correct, it would not change the applicable Guidelines range.

Probation calculated Love’s total offense level for both the drug-related charges and for the

felon-in-possession charge as twenty-six. As discussed above, Probation’s calculations with

respect to the drug-related charges were not in error. Therefore, even if the total offense level for

the felon-in-possession charge should have been lower, Love’s Guidelines range would still have




                                                  7
been calculated based on an offense level of twenty-six. See U.S.S.G. § 3D1.3(a) (2012).

Accordingly, any error did not affect Love’s substantial rights.2

       Finally, Love raises additional claims in a pro se submission. First, he argues that the

indictment must be dismissed because of the government’s alleged misconduct before the grand

jury. However, it is well settled that a conviction by petit jury renders previous errors in grand

jury proceedings harmless. See United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998).

       Second, Love argues that the government’s evidence was insufficient with respect to the

charge of possession of firearms in furtherance of drug trafficking crimes in violation of 18

U.S.C. § 924(c)(1). However, the evidence in this case amply supported the inference that Love

possessed the two firearms seized from the first floor apartment — a loaded Browning .380

caliber semi-automatic handgun and an unloaded Raven Arms .25 caliber handgun — in

furtherance of a drug-selling operation. As discussed above, the circumstances of Love’s arrest

support an inference that he had “exclusive possession of the premises” from which the guns

were recovered, indicating that he exercised dominion and control over them. United States v.

Finley, 245 F.3d 199, 203 (2d Cir. 2001) (quoting United States v. Wilson, 107 F.3d 774, 780

(10th Cir. 1997)). Moreover, the Raven Arms handgun was found on a table in the living room

and the Browning handgun was found in a jacket pocket in the bedroom, in close proximity to

the drugs and drug paraphernalia found in the bedroom and kitchen. This evidence supports an

inference that Love kept the firearms to protect his drug operation. See United States v. Chavez,

549 F.3d 119, 130 (2d Cir. 2008) (“[A] drug dealer may be punished under § 924(c)(1)(A) where

the charged weapon is readily accessible to protect drugs, drug proceeds, or the drug dealer
2
 Love also argues that the district court erred by failing to consider him for a sentence reduction
under Amendment 750 to the Guidelines Manual, which reduced the Guidelines ranges for crack
cocaine offenses pursuant to the Fair Sentencing Act of 2010. However, Love was sentenced
under the 2012 Guidelines, which incorporated Amendment 750, so he did in fact receive the
benefit of that Amendment.

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himself.” (quoting United States v. Snow, 462 F.3d 55, 62–63 (2d Cir. 2006)). Accordingly, the

evidence was sufficient to sustain Love’s conviction on this count.

       Third, Love argues that the Supreme Court’s decision in Alleyne v. United States, 133 S.

Ct. 2151 (2013), established that certain facts supporting the court’s Guidelines calculations had

to be submitted to the jury and proved beyond a reasonable doubt, rather than found by the court

based on a preponderance of the evidence. Specifically, he argues that the district court erred by

finding facts relating to the drug quantity; the two-point enhancement for maintaining a premises

for the possession, use or manufacture of drugs; and the two-point enhancement for possession

of a dangerous weapon.

       The Supreme Court’s decision in Alleyne is inapposite because the facts found by the

court at sentencing did not increase the mandatory minimum sentence for Love’s offense. Id. at

2155 (holding that “any fact that increases the mandatory minimum is an ‘element’ that must be

submitted to the jury”). Furthermore, it was not error for the district court to calculate the

Guidelines range based on facts found at sentencing. It is well settled that district courts may

“find facts relevant to sentencing by a preponderance of the evidence. . . .” United States v.

Vaughn, 430 F.3d 518, 527 (2d Cir. 2005). With respect to drug quantity, our precedent instructs

that “where drug quantity is not found by a jury beyond a reasonable doubt, but rather is

determined by the district court at sentencing under a preponderance standard, the defendant

must be sentenced under 21 U.S.C. § 841(b)(1)(C), the subsection applicable to narcotics

offenses without regard to quantity.” United States v. Yu, 285 F.3d 192, 197 (2d Cir. 2002). That

is exactly what happened in this case. Accordingly, this claim is without merit.

       Finally, Love argues that his sentence should be reduced pursuant to 18 U.S.C. §

3582(c)(2) to reflect amendments to the Guidelines that have taken effect after he was sentenced.



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However, in order to obtain relief under this section, a defendant must file a motion in the district

court. Accordingly, this claim is denied without prejudice to Love’s doing so.

       We have considered Love’s remaining arguments and find that they lack merit. For the

reasons given, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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