                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                 JUN 11 2001
                                       TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk


 UNITED STATES OF AMERICA,

           Plaintiff - Appellant,
 v.                                                           No. 00-7087
                                                        (D.C. No. 99-CR-89-S)
 GEORGE LEWIS SLOAN,                                 (Eastern District of Oklahoma)

           Defendant - Appellant.




                                    ORDER AND JUDGMENT*


Before BRORBY, PORFILIO, and MURPHY, Circuit Judges.




       A jury found George Lewis Sloan guilty on four of five counts of manufacture and

possession of methamphetamine with intent to distribute, all in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. After a hearing in which defendant’s objections were

aired, the court sentenced Mr. Sloan to life on Count I (possession with intent to

distribute); life on Count II (manufacture of methamphetamine); 360 months on Count III



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
(possession with intent to distribute); and 260 months on Count 5 (knowing and

intentional manufacture of amphetamine). Mr. Sloan raises four issues here, one of

which the government concedes. We affirm on the remaining issues.

       The parties are fully acquainted with the facts in this case; therefore, we shall

mention them only when necessary to make plain our conclusions. Suffice, then, to state

the issues presented by this appeal relate to claimed Fourth Amendment violations; the

district court’s refusal to depart downward in sentencing; and sentencing issues

intertwined with the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000). We shall

address the latter issues first.

       Defendant argues 21 U.S.C. § 841(b) contravenes the Constitution because

“Congress did not have the authority to remove the assessment of drug type and drug

amount from the jury, and thus allow the Government to prove these elements only by a

preponderance of the evidence at sentencing.” He further contends if we disagree with

that argument, his constitutional rights, as defined by Apprendi, have been violated

because the jury did not decide the issues of drug type and quantity at trial.

       We believe Mr. Sloan’s first contention results from an overreading of Apprendi.

We see nothing in the opinion which holds a statute including drug type and quantity

penalties is unconstitutional. See Apprendi, 530 U.S. at 496. Although if factors relating

to sentencing result in an increase of the crime’s maximum sentence, they must be

determined by the jury beyond a reasonable doubt, the Court did not rule those factors


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beyond the legislative power, as Mr. Sloan seems to contend. Accord United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

       Nonetheless, the government concedes Mr. Sloan’s sentences cannot stand under

the weight of Apprendi because the factors which raise his statutory maximum of 30

years were neither charged in the indictment nor determined by the jury. We agree.

United States v. Jackson, 240 F.3d 1245, 1248 (10th Cir. 2001). Consequently, the case

must be remanded for a proper sentence under 21 U.S.C. § 841(b)(1)(C).

       Mr. Sloan also argues the district court erred in refusing to depart downward under

U.S.S.G. § 5H1.4. He claims he suffers from an unusual liver disease that constitutes a

physical condition for which departure is “encouraged” by Koon v. United States, 518

U.S. 81 (1996).

       Guideline § 5H1.4 states, in part, “[A]n extraordinary physical impairment may be

a reason to impose a sentence below the applicable guideline range.” Admitting the

district court recognized Mr. Sloan’s illness is extraordinary, he argues it did not grant

downward departure because it failed to appreciate departure is “encouraged” by Koon

for illnesses like his.

       Mr. Sloan’s argument is based on his hope that both Koon and the guideline are

mandatory. Unfortunately for him, the permissive language in both suggests the

employment of judicial discretion and does not command the result he seeks. Moreover,

the district court clearly understood it had the discretion to depart downward in this case;


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therefore, as we have already said so many times, we have no jurisdiction to review its

choice. See United States v. Saffo, 227 F.3d 1260, 1271 (10th Cir. 2000).

       Mr. Sloan claims the Fourth Amendment was violated when officers seized a

container of “sham methamphetamine” from his car. He claims the officers acted without

probable cause to stop the car because they did not have continuous control or

observation of the object seized. After an evidentiary hearing, the district court, setting

forth in detail the evidence upon which it relied, found as a matter of fact “the

government has established continuous surveillance of the sham methamphetamine.”

Because we review such findings for clear error, United States v. McKissick, 204 F.3d

1282, 1296 (10th Cir. 2000), and there is ample supporting evidence in the record, we are

constrained to affirm the court’s holding.

       Mr. Sloan next contends the district court erred by not suppressing evidence found

at his home. At oral argument, counsel argued money found in a pipe was discovered by

officers who used a backhoe to dig up earth around Mr. Sloan’s house. That is not an

accurate statement.

       During the search of the Sloan house, Deputy Sheriff Sexton stepped outside to

smoke a cigarette. He said he noted holes “approximately the same size of four inch PVC

pipe, as well as [sic] posthole digger, the same size hole.” Apparently while walking

around and smoking, Deputy Sexton, “kicked” a cap on a PVC pipe. He noted, “[t]here

was still just a fine layer of dirt over the top of the PVC pipe itself. The PVC pipe was


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still down in the ground . . . and there was a little layer of dirt over the top of the cap.”

He removed the dirt around the pipe and withdrew it. Returning to the house, he opened

the pipe and discovered a black plastic bag from which he removed money. The next day,

returning to the same area, Deputy Sexton and another officer dug with “a shovel” and he

“did get on a tractor and use it a little bit.”

       From these facts, Mr. Sloan argues Deputy Sexton’s actions constituted a “flagrant

disregard for the terms of the search warrant.” He maintains officers should have

obtained another warrant before removing the PVC pipe from the ground. He predicates

that argument upon United States v. Donnes, 947 F.2d 1430, 1434-35 (10th Cir. 1991).

Donnes, however, dealt with circumstances arising from a warrantless search of a home

and simply is not germane to this case.

       Here, the district court found officers were armed with a warrant which authorized

the search of the home and the “curtilage,” and their actions did not abuse the authority

given by the warrant. We agree. Not only is Mr. Sloan’s version of the facts out of sync

with the record, but also his premise is wrong.

       Mr. Sloan argues the warrant executed at his house was based upon a false

affidavit of the applying officer; thus, all the evidence seized there should have been

suppressed. In an argument that is somewhat difficult to follow, counsel seems to

contend the officer lied in the affidavit about the veracity of the informant, Duvall. The

lies, he says, are apparent when the contents of the affidavit are compared with the


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officer’s subsequent testimony. We must say, however, we cannot see the inconsistency

upon which counsel relies. Nonetheless, it is clear from the record even the falsehoods

noted by the defendant are neither flagrant nor deliberate. We believe the premise for the

argument is, at best, fanciful and deserves no further discussion.

       Formulating an unsupported and creative view of the Fourth Amendment, Mr.

Sloan asserts suppression should have been granted because of the treatment of Ms. Sloan

“prior to and during execution of the search warrant.” He maintains she was detained

“for a total of approximately six to eight hours prior to obtaining a search warrant for the

Sloan residence.” He also claims Ms. Sloan was “not free to leave her home prior to the

search warrant execution, and not allowed to go anywhere within her home by herself,

other than the bathroom.” No supporting legal authority is offered for this proposition.

       This approach is unacceptable. Counsel is expected to cite to us the authorities

upon which he relies in support of his contentions. Fed. R. App. P. 28(a)(9)(A). This

court will not conduct a review of legal authority to ferret out support for the arguments

of counsel. That is precisely what Rule 28 seeks to avoid. Moreover, a legal argument

supported with no authority is worse than no argument at all. We find nothing credible in

this contention, and we do not believe ourselves constrained to deal with sophistry.

       Mr. Sloan then advances the argument suppression should have been granted

because the warrant was not executed before 10:00 p.m. as required. Again, this

argument is made despite testimony of the officers and findings of the district court to the


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contrary. The theory is founded upon testimony of Ms. Sloan that the warrant was served

between 10:30 and 10:45, and that of her daughter who stated she was talking to her

mother on the telephone at 10:30 p.m. when her mother said she would have to terminate

the conversation because “an agent” was reading “something” to her.

       Faced with the conflict between the testimony of the officers who stated the

warrant was served before 10:00 p.m. and the contrary statements of the defense

witnesses, the district court resolved the issue by holding the testimony of the officers was

more credible. Not only is that a finding of fact that is not clearly erroneous, but also it is

one that is binding upon this issue. We must therefore conclude the writ was executed in

accordance with Fed. R. Crim. P. 41(c).

       In his coda to contentions that the items seized from his home should be

suppressed, Mr. Sloan states seizures made by Arkansas officers and those of items not

described in the warrant should be grounds for a blanket suppression. We do not agree.

       First, as noted by the district court, the items not described in the warrant were

returned to the defendant and the remaining were within the descriptions provided in the

warrant. Second, the issue of suppression is decided upon the basis of federal, not

Oklahoma law. Under the former, the federal officer executing a search warrant has

authority to solicit the aid of another who may do so in the presence of the officer. 18

U.S.C. § 3105. The fact that Arkansas officers assisted Agent Waddell is of no moment.




                                             -7-
See United States v. Medlin, 842 F.2d 1194, 1196 (10th Cir. 1988). We therefore agree

with the conclusions reached by the district court.

       Defendant next attacks the district court’s rulings relating to the search of the

McKnight Motel. Contending first the search warrant was based upon another defective

affidavit, Mr. Sloan argues the district court erred in failing to suppress items taken from

room 58. At the suppression hearing, the government conceded that the affidavit of Chief

Philpot stated, “within the last seventy-two hours” Chief Philpot met with a confidential

informant who had been in motel room 58 and had seen a “powdered substance.”

However, the affidavit was defective, in the government’s eyes, because it did not state

the informant had been present in room 58 within that seventy-two hour period. In the

district court, both counsel agreed that was the “defect” upon which the motion to

suppress was predicated.

       The district court’s findings note Chief Philpot testified that while he failed to state

the informant had been present in room 58, the informant nevertheless told him: 1) he had

been in the room twice in the twenty-four hours preceding the making of the affidavit; 2)

that he had observed the making of amphetamine while he was there; and 3) that

occupants of the room told the informant amphetamine was being manufactured there.

Chief Philpot also knew defendant had rented room 58.

       On the basis of this testimony, the district court concluded Chief Philpot had an

objectively reasonable basis for believing there was probable cause to search room 58.


                                             -8-
The court further held under the circumstances Chief Philpot “acted with objective good

faith.” The court believed the failure to state in the affidavit the recent presence of the

informant in the room to be searched “did not diminish” the propriety of Philpot’s

reliance upon the search warrant, citing United States v. Leon, 468 U.S. 897 (1984).

       Taking on Mr. Sloan’s contention Chief Philpot omitted “critical information” in

his affidavit, the court next considered whether the issuing magistrate was misled prior to

granting the warrant. Although the defendant argued Chief Philpot did not set forth room

58 had been rented by Mr. Sloan and did not know for how long the room had been

rented, the district court “fail[ed] to see how these omissions translate into any deception

by Philpot with respect to a probable cause determination.” Thus, the court reasoned, the

warrant was issued upon truthful statements and not upon false or misleading

representations.

       The court then tested the facial sufficiency of the warrant to determine whether

Chief Philpot’s good faith reliance was unwarranted. Finding no deficiency with respect

to room 58, the court applied Leon and denied the motion to suppress. We agree with

both the analysis and the conclusion.

       Nothing presented here by Mr. Sloan demonstrates error in this result. Not only

has he failed to substantiate Chief Philpot’s affidavit was intentionally misleading, but

also the distinctions he draws between testimony and the contents of the affidavit are non




                                             -9-
sequiturs serving only to obfuscate the essential evidence that is determinative of the

issue.

         Pursuing a “poisonous tree” analysis, Mr. Sloan argues the contents of a storage

shed should have been suppressed because the officers learned of the existence of the

shed from rental receipts previously suppressed by the district court. Although the

seizures were effected after the discovery of the rental receipts, the government argued

probable cause for the affidavit and the subsequent search arose from an interview of

Shawn Ava, one of the occupants of the McKnight Motel, conducted by IRS Agent Diana

Megli.

         Agent Megli testified on December 9, the day before the affidavits were prepared,

she interviewed Shawn Ava who told Agent Megli about the existence of the storage

units. According to Agent Megli, Ava stated she had been to the units “on several

occasions” with Mr. Sloan “during the past few weeks.” The agent said Ava told her she

had seen antiques, clothes, furniture, wheels, glass beakers, and records in boxes in the

units. Although Agent Megli was primarily interested in the records, the other officers

with whom she was working were interested in the glass beakers upon the premise “there

was some sort of lab there.”

         Although Agent Megli discovered the numbers of the storage units from the

receipts later suppressed by the district court, she stated she could have discovered the

same information by simply interviewing people who had rented the units to Mr. Sloan.


                                            - 10 -
Additionally, Ms. Ava stated she could take the agent directly to the exact units she had

visited.

       Cross-examination of Agent Megli answered the question of who between Megli

and Ava initiated discussion about the storage units. When asked, initially the agent was

not sure whether she or Ava brought up the matter. Agent Megli stated, “I wouldn’t have

known that she knew anything about the mini storage. It said Lucile Ford on the receipt

[that had been suppressed].” When counsel pursued the issue, and asked, “She just

popped that out and said, ‘Hey, I need to let you know this?’” Agent Megli responded,

“As far as I know she did. I didn’t know that she knew about the receipts to have asked

her that question.” Again, after prompting by counsel, the agent stated, “Oh, I didn’t ask

her about a storage unit.” She admitted she might have asked what places she had visited

with Mr. Sloan, but she was adamant she did not ask about the storage units.

       On the basis of this evidence, the district court found the discovery of the storage

unit and its contents was inevitable. Thus, their seizure fell within an exception to the

poisonous tree doctrine.

       This evidence notwithstanding, Mr. Sloan insists on arguing “the items found in

the mini-storage units were directly tied to the alleged illegality. Without the illegal

search of the Dodge Truck, the Government would not have known about the receipts and

the storage units.” This argument is clearly refuted in the record. Not only does it ignore

the testimony of Agent Megli about who initiated discussion of the units in the first


                                            - 11 -
instance, but it also overlooks her testimony that the receipts bore the name of another

person, not that of Ms. Ava. Mr. Sloan’s argument that Ava’s statements were

“logically” in response to “inquiries by the officers as to whether she knew of the

existence of the storage units” is simply not borne out by the record.

       The independent source rule, Nix v. Williams, 467 U.S. 431, 441 (1984); and the

inevitable discovery rule, United States v. Larsen, 127 F.3d 984, 986 (10th Cir. 1997),

are ample reasons for affirming the district court in full. We do so.

       The judgment is AFFIRMED IN PART and REVERSED IN PART AND

REMANDED for resentencing in accordance with this order and judgment.


                                          ENTERED FOR THE COURT


                                          John C. Porfilio
                                          Senior Circuit Judge




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