                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 5 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 99-3342
v.                                                  (District of Kansas)
                                                  (D.C. No. 98-CR-10001)
MICHAEL J. HOGAN,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


                                  I. INTRODUCTION

      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.




      *
       This order and judgment is not binding precedent, except under the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.
      Michael Hogan pleaded guilty 1 to two counts of possession of cocaine with

intent to distribute in violation of 21 U.S.C. § 841, one count of attempted

possession of cocaine with intent to distribute in violation of 21 U.S.C. § 846, and

three counts of possession of a firearm by an unlawful user of controlled

substances in violation of 18 U.S.C. § 922(g)(3). The district court sentenced

Hogan to a term of imprisonment of seventy-eight months on each count,

providing that all of the terms of imprisonment would run concurrently. On

appeal, Hogan asserts that the district court erred in refusing to suppress three

weapons found during a warrant-based search of his residence. He further asserts

that the district court erred in calculating the amount of drugs attributable to him

for purposes of the United States Sentencing Guidelines. This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.



                               II. BACKGROUND

      In late 1997, agents of the Drug Enforcement Administration (“DEA”)

began investigating Hogan after a confidential informant provided the DEA with

information that Hogan was involved in drug trafficking. On January 8, 1998,

Hogan agreed to sell a kilogram of cocaine to the confidential informant and a



      Hogan entered his guilty plea pursuant to Federal Rule of Criminal
      1

Procedure 11(a)(2), preserving his right to appeal the district court’s denial of his
motion to suppress.

                                         -2-
DEA agent. During the negotiations, Hogan informed the confidential informant

that he had approximately four ounces of cocaine at his house and that he could

come up with enough cocaine from other sources to complete the deal. At ten

o’clock that evening, however, the drug deal escalated into a shooting incident

between other defendants and agents of the DEA. Hogan and others were

arrested.

      Early the next morning, DEA agents applied for a warrant to search the

home of Hogan’s parents. Hogan had been living with his parents for several

months. A magistrate judge issued the requested warrant, authorizing officers to

search for, inter alia, cocaine; firearms “held in connection with the sale or

distribution of cocaine”; and financial documents such as bank documents,

customer lists, and telephone/pager bills associated with the distribution of

cocaine. During a three-hour search of Hogan’s room, officers found a package

of cocaine secreted between Hogan’s mattress and box springs. The officers also

found three handguns and a homemade silencer in a locked briefcase stowed

under Hogan’s bed.

      Prior to trial, Hogan filed a motion to suppress the weapons and silencer

found in the briefcase during the search of his room. As grounds for his

suppression motion, Hogan argued as follows: (1) the search of the briefcase was

improper because the briefcase was not identified as a proper place to be searched


                                         -3-
in the search warrant; (2) although the warrant specifically empowered officers to

search for weapons, the affidavit in support of the warrant was absolutely silent

on the question of weapons; and (3) once the officers found the quantity of

cocaine identified in the affidavit in support of the warrant, they were obligated to

halt their search. The district court rejected these contentions, concluding that the

briefcase reasonably could have contained any of the items identified in the

warrant. Thus, according to the district court, the search of the briefcase was

both reasonable and within the terms of the warrant.

      After the district court denied his motion to suppress, Hogan entered into a

conditional guilty plea agreement with the government. In that agreement, the

parties specifically agreed that Hogan had attempted to possess with intent to

distribute eighteen ounces of cocaine. At sentencing, the district court calculated

Hogan’s offense level based on the quantity set forth in the plea agreement.



                                  III. ANALYSIS

      1. MOTION TO SUPPRESS

      In reviewing the denial of a motion to suppress, this court applies the

clearly erroneous standard to the district court’s factual findings and views the

evidence in the light most favorable to the government. See United States v.

Eylicio-Montoya, 18 F.3d 845, 849 (10th Cir. 1994). The ultimate conclusion that


                                         -4-
a search is reasonable is, however, a question of law subject to de novo review.

See id.

      On appeal, Hogan makes the following two closely related arguments: (1)

the officers were obligated to terminate the search immediately upon the finding

of the cocaine described in the affidavit in support of the search warrant; and (2)

the officers could not search the briefcase where the guns were found because it

was not specifically identified in the warrant as a place to be searched. These

contentions can be resolved in short order. Hogan’s assertion that officers could

not open the briefcase found under his bed without a separate warrant is at odds

with both basic treatise law and Tenth Circuit precedent.

             If a warrant sufficiently describes the premises to be searched,
      this will justify a search of those personal effects found therein and
      belonging to the person occupying the premises if those effects might
      contain the described items. It is not necessary, in order to comply
      with the Fourth Amendment requirement that the place to be searched
      be described with particularity, that the warrant also describe such
      receptacles. For example, if officers executing a warrant for
      marijuana find in the described house a matchbox and wallet, these
      items may be searched because they are “plausible repositories” for
      the marijuana.

Wayne R. LaFave, Search and Seizure, § 4.10(b) (3d ed. 1996); see also United

States v. Gentry, 642 F.2d 385, 387 (10th Cir. 1981) (holding that warrant for

search of premises authorized search for briefcase found therein). Because it is

clear that any number of the items set forth in the warrant could have been found

in the briefcase, the search of that briefcase was consistent with the warrant.

                                         -5-
Hogan’s claim that officers had to stop searching once they located the cocaine in

his room is similarly flawed. The warrant also empowered the officers to search

for drug paraphernalia and financial records relating to drug distribution, any

which of those items could have been located in the briefcase. 2 Once the

briefcase was validly opened, the guns contained therein were in plain view and

subject to seizure.

      The district court’s conclusion that the search of the briefcase was

reasonable and consistent with the dictates of the Fourth Amendment is clearly

correct and is, therefore, affirmed.

      2. DRUG CALCULATION

      Hogan asserts that the district court miscalculated the amount of drugs

attributable to him for purposes of calculating his base offense level under United

States Sentencing Guideline § 2D1.1(c). In particular, Hogan asserts that the

district court erred in holding him responsible for eighteen ounces of cocaine

flowing from the interrupted transaction on the day of Hogan’s arrest. This court



      2
        Before the district court, Hogan asserted that those portions of the warrant
allowing the officers to search his residence for weapons was invalid because
there was nothing contained in the affidavit in support of the warrant regarding
the likely presence of weapons. Hogan does not reassert that argument on appeal.
Even assuming he had reasserted that claim and assuming the claim had any
merit, the search of the briefcase was still proper because it was possible that the
briefcase contained financial records, drug paraphernalia, or additional quantities
of drugs.

                                         -6-
reviews a district court’s drug quantity calculations for clear error. See United

States v. Ruiz-Castro, 92 F.3d 1519, 1534 (10th Cir. 1996). The government has

the burden of proving the quantity of drugs for sentencing by a preponderance of

the evidence. See id.

      Hogan’s contentions regarding the district court’s drug-quantity

calculations are clearly without merit. The plea agreement specifically provided

that Hogan had attempted to possess with intent to distribute eighteen ounces of

cocaine. Furthermore, during the colloquy at the change of plea hearing, the

district court engaged in a lengthy discussion with Hogan regarding the

consequences of the plea agreement and the fact that Hogan had specifically

agreed he had negotiated to sell eighteen ounces of cocaine. Finally, when the

question of drug quantity arose at the sentencing hearing, the district court

offered Hogan the chance to withdraw his plea, an offer Hogan declined.

      The district court did not, however, rely exclusively on the stipulation in

the plea agreement in determining that Hogan was responsible for the eighteen

ounces alleged in count two of the superseding indictment. The district court also

heard the testimony of DEA agent Nikki Hollmann. Hollmann specifically

testified that Hogan agreed to sell her one kilogram of cocaine for $15,000. 3 At


      3
       As specifically noted by the district court, one kilogram is not exactly
equal to eighteen ounces. Nevertheless, as further noted by the district court,
those two amounts are roughly equivalent and the slight difference between the

                                         -7-
the conclusion of the sentencing hearing, the district court specifically found

Hollmann’s testimony credible, implicitly rejecting Hogan’s contrary testimony.

See United States v. Gama-Bastidas, 142 F.3d 1233, 1239-40 (10th Cir. 1998)

(holding that these kind of credibility determinations are particularly within the

province of the district court). So credited, Holland’s testimony is more than

sufficient to support the district court’s drug calculations.



                                IV. CONCLUSION

      For those reasons set forth above, the judgment of the United States District

Court for the District of Kansas is hereby AFFIRMED.

                                        ENTERED FOR THE COURT:



                                        Michael R. Murphy
                                        Circuit Judge




two was not relevant for purposes of establishing Hogan’s offense level under the
Sentencing Guidelines.

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