                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4008



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RENNIE OTIS PRICE, a/k/a Ronnie Otis Price,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(CR-03-56)


Submitted:   September 21, 2005           Decided:   October 12, 2005


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Gerald C. Ruter, THE LAW OFFICES OF GERALD C. RUTER, P.C.,
Baltimore, Maryland, for Appellant. Allen F. Loucks, United States
Attorney, Christopher J. Romano, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Rennie Otis Price appeals his conviction for conspiracy

to distribute and to possess with intent to distribute 50 grams or

more of cocaine base and less than 500 grams of powder cocaine and

his   corresponding     151-month        sentence.       After     thorough

consideration, we affirm Price’s conviction.          However, we vacate

his sentence and remand for further consideration.



                                    I.

             Price first asserts that police officers violated his

Fourth Amendment rights by executing a search warrant without first

knocking and announcing their presence.         In Richards v. Wisconsin,

520 U.S. 385, 394 (1997), the Supreme Court held that “no-knock”

entries are justified when police officers have a “reasonable

suspicion” that knocking and announcing their presence before

entering would “be dangerous or futile, or . . . inhibit the

effective investigation of the crime.”          The officers in this case

justified their failure to knock and announce based on the violent

criminal backgrounds of the two suspects (Dexter Tyson and Kevin

Pariag) and the fact that the drug evidence could be quickly

destroyed.

          Price     contends   that       the    “no-knock”      entry   was

unreasonable, because the officers should have known that neither

suspect was in Apt. F at the time.       Price further contends that, in


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the   absence      of   any   danger    from     the   suspects,   the    fear    of

destruction of drug evidence was insufficient to warrant entry

without knocking and announcing.

            Prior to execution of the search warrant, Tyson was

observed leaving the apartment.           While a detective testified that

he did not know whether Pariag was in the apartment at the time of

the search, Price contends that the officers knew that Pariag did

not live there and that they should have done further investigation

to determine Pariag’s whereabouts.              However, the officers observed

Pariag, who was related to Tyson, at Tyson’s apartment building on

at least two occasions.         They had information that he drove a car

parked at Tyson’s apartment building.              In addition, Pariag had not

been spotted at his own home.           Pariag’s criminal history included

convictions for escape, burglary with a handgun, and assault with

intent to murder.       In addition, a canine officer alerted on the car

that Pariag was driving, and the officers’ surveillance strongly

supported    the    inference    that    there    was   drug   evidence    in    the

apartment.      Finally, the magistrate judge issued the warrant as a

“no-knock,” providing the officers another reason to believe that

their entry was reasonable. See United States v. Tisdale, 195 F.3d

70, 73 (2d Cir. 1999) (regardless of exigent circumstance, officers

entitled to rely on the no-knock provision of the warrant in good

faith).




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              Thus, a reliable confidential informant and the officers’

own observations supported the conclusion that Pariag might be in

the apartment.      Pariag was a suspected drug dealer with a violent

past and a history of handgun use.               In addition, the officers

reasonably believed that they were dealing with experienced drug

distributors who would have reason to attempt to destroy evidence

unless   the    officers    acted    quickly.     Thus,   we   find   that   the

officers’ “no-knock” entry was justified.              See United States v.

Ramirez, 523 U.S. 65, 71 (1998) (finding police had a reasonable

suspicion that knocking and announcing would be dangerous based

upon reliable information that suspect with violent background and

access   to    weapons     “might”   be   in    respondent’s   home);   United

States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994) (holding that

it is reasonable for police officers to assume that experienced

drug dealers selling small quantities from a residence will attempt

to destroy the evidence if police announce their presence).1




     1
      Price argues that the police could have done further
investigation as to Pariag’s whereabouts. However, he offers no
support for the proposition that officers, armed with a warrant and
a reasonable suspicion that a potentially dangerous drug dealer is
in the subject apartment, are required to delay and do additional
investigation that may shed further light on the suspect’s
location. The Richardson rule requires only that officers possess
a “reasonable suspicion” that knocking before entry would be
dangerous. Officers need not possess the knowledge to an absolute
certainty or even by a preponderance of the evidence. Terry v.
Ohio, 392 U.S. 1, 27 (1968) (holding that reasonable suspicion
requires more than a hunch but less than probable cause).

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                                     II.

           Price contends that the district court erred in denying

his motion for a hearing pursuant to Franks v. Delaware, 438 U.S.

154 (1978).     In Franks, the Supreme Court ruled that a defendant is

entitled to a hearing on the validity of the search warrant

affidavit if he makes a substantial preliminary showing that a

false statement knowingly and intentionally, or with reckless

disregard for the truth, was included in the warrant affidavit, and

the allegedly false statement was necessary to the finding of

probable cause.        Id. at 155-56.       Price challenged the affiant

detective’s assertions that he observed Tyson conducting what

appeared to be a drug deal outside of the subject apartment on

December 2, 2002, because Tyson was apparently in jail at the time.

           However, Price failed to make any showing that the error

in the date (or the identification) provided in the affidavit was

anything more than negligence, which does not justify a Franks

hearing.   Id. at 170.    Moreover, Price still needs to show that the

alleged misrepresentations were essential to the probable cause

determination.      On this point, Price contends that the abridged

affidavit would not provide probable cause to believe that Tyson

was involved in criminal activity or that Apt. F was involved.

           If    all   references   to     December   2   are   excised,   the

affidavit would still allege that (1) a confidential informant

advised that Tyson and Pariag were distributing cocaine from Apt.


                                    - 5 -
F; (2) detectives saw Pariag exit the building and retrieve a bag

from a minivan that a canine officer alerted on; (3) detectives saw

Tyson pick up a white plastic bag from the apartment building and

drive away with it, while making “counter-surveillance moves” in

his vehicle; (4) a trash bag deposited in the dumpster by a

companion of Pariag’s contained cocaine residue; (5) Tyson lived in

Apt. F, while Pariag did not live in the apartment building; and

(6) Tyson and Pariag were related.             We find that there was

sufficient information from which probable cause could be found.

See United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992)

(explaining that probable cause exists if “‘a man of reasonable

caution’ [would] believe that evidence of a crime will be found”).

Thus, the district court properly denied the motion for a Franks

hearing.



                                   III.

           Price next contends that the district court erred in

denying his motion to suppress his statement.         Specifically, Price

alleges that his confession was coerced by the officers’ attempts

to gain his confidence while he was in an agitated state.                 A

confession is invalidated by threats or implied promises only when

the   defendant’s    will    is   overborne    and    his   capacity     for

self-determination   is     critically    impaired.    United   States   v.

Braxton, 112 F.3d 777, 783 (4th Cir. 1997).


                                  - 6 -
           The record contains no evidence that Price’s will was

overborne.       Price testified at the motions hearing and at trial

that he was not advised of his rights and he did not make the

statements attributed to him by the officers.                He did not assert

that he was threatened, coerced, or intimidated.                 Moreover, even

accepting Price’s current story that his confession was induced by

the surprise arrest of him and his girlfriend and the officers’

assertions that he was not the person the police were after, the

statement was still a voluntary choice.                  See id. (holding that

“voluntariness of confession ‘is not . . . to be equated with the

absolute   absence       of   intimidation’”);     see    also   Schneckloth    v.

Bustamonte, 412 U.S. 218, 224 (1973) (recognizing that very few

people give incriminating statements in the absence of some sort of

official action). Thus, the district court properly denied Price’s

motion to suppress.



                                         IV.

             Price next challenges the sufficiency of the evidence to

support    his    conviction      for    conspiracy.        In   reviewing     the

sufficiency of the evidence, we construe the evidence in the light

most   favorable    to    the   United    States   and    draw   all   reasonable

inferences in its favor, sustaining the verdict if any rational

trier of fact could have found the necessary elements of the crime

proven beyond a reasonable doubt. United States v. Romer, 148 F.3d


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359, 364 (4th Cir. 1998).                 If the evidence supports different,

reasonable interpretations, the fact finder, not the reviewing

court, decides which interpretation to believe.                      United States v.

Murphy, 35 F.3d 143, 148 (4th Cir. 1994).                A defendant challenging

the sufficiency of the evidence to support his conviction faces a

heavy burden.     United States v. Beidler, 110 F.3d 1064, 1067 (4th

Cir. 1997).

            Price      claims       the   jury’s    refusal    to    convict   him    of

possession of crack cocaine proves that there is insufficient

evidence to support his conviction for a crack cocaine conspiracy,

because the only mention of crack cocaine at trial was the crack

found during the search of Apt. F, which the jury clearly did not

attribute to him.          However, a jury verdict is not reviewable for

internal inconsistencies.             United States v. Powell, 469 U.S. 57,

68-69 (1984).       Therefore, even if the jury found facts to support

one   crime,    but    not    the     other,   its    verdict    is    granted    broad

deference.      United States v. Love, 134 F.3d 595, 606 (4th Cir.

1998).

            Further,         the    jury’s     verdict    is    not     inconsistent.

Conspiracy and possession with intent to distribute each have very

different      elements,       so    Price’s       inference    is    not   the    only

interpretation        of   the     verdict.        Moreover,    Price    ignores     his

statement to the police that he was present when Tyson cooked

cocaine into crack.          Thus, not only was the evidence sufficient to


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convict Price of a powder cocaine conspiracy (which is undisputed

by Price), but his own statement provides sufficient evidence that

the scope of his agreement with other conspirators involved crack

cocaine, as well.



                                 V.

           Price next claims that the district court erred by

refusing to grant a mistrial after a bullet not in evidence was

inadvertently sent into the jury room.   The decision of whether to

grant a mistrial is left to the broad discretion of the trial

court.   United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.

1997) (stating that “denial of a defendant’s motion for a mistrial

is within the sound discretion of the district court and will be

disturbed only under the most extraordinary of circumstances”). We

have held that, in order to show an abuse of discretion, a

defendant must show prejudice, and no prejudice exists if the jury

could make individual guilt determinations by following the court’s

cautionary instructions.   United States v. West, 877 F.2d 281, 288

(4th Cir. 1989).    Reversal is required only if there is a clear

abuse of discretion and a “reasonable probability that the jury’s

verdict was influenced by the material that improperly came before

it.”   United States v. Seeright, 978 F.2d 842, 849 (4th Cir. 1992).

           Price fails to meet his burden of demonstrating that the

district court abused its discretion.    Following discovery of the


                                - 9 -
bullet, the jury brought the matter to the court’s attention,

demonstrating that the jury itself was aware of the evidence

mistake.   The court informed the jury that the bullet was in the

box by mistake, that it was not in evidence, and that it could not

be considered in any way.     See Luchenburg v. Smith, 79 F.3d 388,

393 (4th Cir. 1996) (holding that jurors are presumed to follow the

court’s instructions). Finally, it is unclear how the bullet could

have prejudiced Price.   The caliber of the bullet did not match any

of the firearms or ammunition discussed at trial.        Moreover, Price

was not convicted of a firearm offense.      Thus, because there is no

reasonable probability that the jury was influenced by the presence

of the bullet in the evidence box, the district court properly

denied the motion for a mistrial.



                                    VI.

           Price contends that he was improperly sentenced under the

mandatory guidelines scheme, and he seeks imposition of the court’s

alternative sentence.    The Government does not object.

           Although   Price   did   not   specifically   object   in   the

district court to being sentenced under a mandatory guidelines

scheme, counsel did raise “overall Blakely issues,” and requested

an alternative sentence in light of Blakely v. Washington, 542 U.S.

296 (2004).   In United States v. White, 405 F.3d 208, 216-17 (4th

Cir. 2005), we considered whether treating the guidelines as


                                - 10 -
mandatory was plain error in light of United States v. Booker, 125

S. Ct. 738 (2005), and held that it was.             However, we declined to

presume prejudice, finding that a defendant must “demonstrate,

based on the record, that the treatment of the guidelines as

mandatory caused the district court to impose a longer sentence

than it otherwise would have imposed.”               White, 405 F.3d at 224.

Because “the record as a whole provide[d] no nonspeculative basis

for concluding that the treatment of the guidelines as mandatory

‘affect[ed]     the   district      court’s   selection     of   the    sentence

imposed,’” id. at 223, we concluded that the error did not affect

the defendant’s substantial rights and affirmed the sentence.                   Id.

at 225.

             Here, the district court imposed Price’s sentence under

a mandatory guidelines scheme, which is error.              See id. at 216-17.

In addition, the district court announced an alternate, lower

sentence that it would impose were it not constrained by the

guidelines.      We   hold   that    the   district    court’s      statement   at

sentencing    conclusively     indicates      that    the   court    would   have

sentenced Price to a lower sentence had the court proceeded under

an advisory guideline scheme.           Thus, the error affected Price’s

substantial rights, and we vacate Price’s sentence and remand for

further proceedings.2


     2
      We offer no criticism of the district court, who followed the
law and procedure in effect when Price was sentenced.           See
generally Johnson v. United States, 520 U.S. 461, 468 (1997).

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                                 VII.

           Based on the foregoing, we affirm Price’s conviction,

vacate his sentence, and remand for further proceedings.3             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 IN PART,
                                                      VACATED IN PART,
                                                          AND REMANDED




     3
      Although the sentencing guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767.     On remand, the district court should first
determine the appropriate sentencing range under the guidelines,
making all factual findings appropriate for that determination.
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). The
court should consider this sentencing range, along with other
factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2005), and then impose a sentence. Hughes, 401 F.3d at 546. If
that sentence falls outside the guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.
§ 3553(c)(2) (2000). Hughes, 401 F.3d at 546. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.

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