                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4622


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ARTEMAS TYRELL ROBERTS, a/k/a Artimus Tyrell Roberts,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00173-NCT-1)


Submitted:   February 17, 2012            Decided:   February 24, 2012


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark E. Edwards, EDWARDS & TRENKLE, PLLC, Durham, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Artemas Tyrell Roberts appeals his 294-month sentence

and   convictions          following         a   guilty         plea    to    possession         with

intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B) (2006), and possession of a firearm in

furtherance      of    a    drug    trafficking             crime,      in   violation         of    18

U.S.C. § 924(c)(1)(A)(i) (2006).                      On appeal, Roberts argues that

the district court erroneously denied his motion to suppress

evidence following an alleged illegal search of his residence.

Roberts    has     also      filed       a       motion         to   remand       the    case       for

resentencing      in    light       of   the      Fair      Sentencing        Act       (“FSA”)      of

2010.     We affirm Roberts’s convictions and deny his motion to

remand.

            Following         the    denial           of    a    motion      to    suppress,         we

review the district court’s legal conclusions de novo and its

factual findings for clear error.                          United States v. Foster, 634

F.3d 243, 246 (4th Cir. 2011).                         A factual finding is clearly

erroneous if this court “on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.”

United    States      v.    Harvey,      532       F.3d     326,       337   (4th       Cir.    2008)

(internal quotation marks omitted).                             In conducting our review,

we give particular deference “to a district court’s credibility

determinations, for it is the role of the district court to

observe witnesses and weigh their credibility during a pre-trial

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motion to suppress.”            United States v. Abu Ali, 528 F.3d 210,

232   (4th     Cir.    2008)    (internal       quotation     marks     and       citation

omitted).         “Because     the    district     court    denied     the    motion    to

suppress, we construe the evidence in the light most favorable

to the government.”            United States v. Black, 525 F.3d 359, 364

(4th Cir. 2008) (internal quotation marks and citation omitted).

             On    appeal,     Roberts      does   not     challenge    the       district

court’s      finding     that        exigent     circumstances        justified        the

officers’      entry    into    his    residence      to    conduct     a    protective

sweep.       Instead, Roberts asserts for the first time that the

officers impermissibly entered the “curtilage” surrounding his

residence when they approached the rear door, rather than the

front door, to conduct their “knock and talk,” thereby violating

the   Fourth      Amendment.         Because    Roberts     failed     to    raise   this

argument in his motion to suppress before the district court,

our review is for plain error.                  Fed. R. Crim. P. 52(b).              Plain

error occurs when:             (1) there was an error; (2) the error is

plain; (3) the error affects substantial rights; and (4) the

error    seriously      affects       the   fairness,       integrity,       or    public

reputation of judicial proceedings.                 United States v. Wilkinson,

137 F.3d 214, 223 (4th Cir. 1998) (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)).

             The Fourth Amendment’s protection against unreasonable

searches extends to the curtilage of a home.                     Oliver v. United

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States, 466 U.S. 170, 180 (1984); Rogers v. Pendleton, 249 F.3d

279, 287 (4th Cir. 2001).                However, “just as private citizens

may    approach    a    home,     absent      contrary       instructions        from   the

owner, to knock on a door, so may the police approach without

probable cause, a warrant, or exigency.”                      Pendleton, 249 F.3d at

289.      Officers      may    enter    an    individual’s         backyard      without   a

warrant “when they have a legitimate law enforcement purpose for

doing so.”       Alvarez v. Montgomery Cnty., 147 F.3d 354, 358 (4th

Cir. 1998).        Once on a private individual’s property, however,

the officers may not “exceed their legitimate purpose for being

there.”    Id.

            In this case, the officers had a legitimate reason to

approach Roberts’s townhouse — to apprehend a wanted fugitive

believed    to    be    residing        there.       Based        upon   their      previous

observations during the course of surveillance, the officers saw

that all guests approached and entered the townhouse through the

rear entrance.           As the rear patio connected to an adjoining

parking lot along a paved sidewalk, it would be reasonable for

members of the public to approach the townhouse through the rear

entryway as well.             Moreover, although a dog was chained in the

backyard,    the       patio    was     not   fenced    and        contained     no   signs

forbidding    trespassers.             Accordingly,         the    officers    reasonably

approached       the    rear     door    to       conduct     a    “knock     and     talk.”



                                              4
Therefore, the district court did not err in denying Roberts’s

motion to suppress evidence obtained as a result.

              In his motion to remand, Roberts asserts that the case

should be remanded for resentencing in light of the FSA.                                       The

FSA increased the threshold quantities of cocaine base needed to

trigger certain mandatory minimum sentences under 21 U.S.C.A.

§ 841(b) (West 1999 & Supp. 2011).                        This court has not yet ruled

on whether the FSA is retroactively applicable to a defendant,

like Roberts, who committed the offense prior to August 3, 2010,

the effective date of the FSA, but was sentenced after that

date.    See United States v. Bullard, 645 F.3d 237, 248 n.5 (4th

Cir.    2011)    (reserving         judgment         on    “whether    the    FSA    could     be

found    to     apply    to    defendants            whose    offenses       were    committed

before August 3, 2010, but who have not yet been sentenced”).

              However,        the        district         court     determined       Roberts’s

advisory      Guidelines      range        based      upon    his    status    as    a    career

offender,       not     his    drug        quantities.              Although        21    U.S.C.

§ 841(b)(1)(B)          imposed      a    mandatory          minimum   sentence          of   five

years’    imprisonment         for       possession        with     intent    to    distribute

12.8    grams     of     cocaine         base,   Roberts’s          status    as     a    career

offender governed his subsequent advisory Guidelines range of

262 to 327 months’ imprisonment pursuant to the U.S. Sentencing

Guidelines Manual § 4B1.1(c)(3) (2010).                           Accordingly, any change

in the minimum mandatory sentence for possession with intent to

                                                 5
distribute 12.8 grams of cocaine base would not affect Roberts’s

sentence.

            Accordingly, we affirm the district court’s judgment

and deny Roberts’s motion to remand.      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




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