                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-5112



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


HENRY ANTOINE SAUNDERS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
03-484-DKC)


Submitted:   March 8, 2006                    Decided:   May 2, 2006


Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barry J. Pollack, COLLIER, SHANNON & SCOTT, P.L.L.C., Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Mythili Raman, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Henry   Antoine   Saunders    was    convicted   by    a   jury     of

conspiracy to distribute and to possess with intent to distribute

cocaine, and possession of a firearm in furtherance of a drug

trafficking   crime,    in    violation        of   18   U.S.C.       §§     846,

924(c)(1)(A)(I) (2000), respectively.           On the first count, the

district court sentenced Saunders to 121 months’ imprisonment, a

sentence at the bottom of the sentencing guidelines range and one

month above the statutory mandatory minimum sentence.                      On the

second count, the district court sentenced Saunders to five years’

imprisonment consecutively, as required by statute.                   Saunders

appeals.

           First, Saunders challenges the district court’s denial of

his pretrial motion to suppress evidence collected at a search of

his residence.     The affidavit supporting the warrant contained

facts alleging that Saunders conducted coded conversations with a

known drug dealer, that Saunders met with the drug dealer at

intersections in and around the District of Columbia, and that

Saunders resided at one of the investigation’s target locations

cited in the affidavit. However, aside from a statement reflecting

the affiant’s observation, based on training and experience, that

drug dealers often store the fruits and instrumentalities of their

crimes at their residences, the affidavit contained no information

linking the residence to alleged drug activity. The district court


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agreed with Saunders that the affidavit for the search warrant did

not   provide     information    alleging      a   nexus     between    Saunders’

residence and suspected drug activity sufficient to establish

probable cause. However, the district court upheld the legality of

the search under the good faith exception to the exclusionary rule.

See   United    States   v.   Lalor,   996     F.2d   1578    (4th     Cir.    1993)

(upholding the denial of a motion to suppress items seized pursuant

to a search warrant for the defendant’s residence under the good

faith exception despite the failure of the warrant application to

set forth information alleging a connection between the defendant’s

drug activity and his residence).

           If a warrant is found to be defective, the evidence

obtained from the defective warrant may nevertheless be admitted

under the good faith exception to the exclusionary rule.                      United

States v. Leon, 468 U.S. 897, 922-23 (1984).                   Evidence seized

pursuant to a defective warrant will not be suppressed unless: (1)

the   affidavit    contains     knowing   or   reckless      falsity;     (2)   the

magistrate acts as a rubber stamp for the police; (3) the affidavit

does not provide the magistrate with a substantial basis for

determining the existence of probable cause; and (4) the warrant is

so facially deficient that an officer could not reasonably rely on

it.   United States v. Wilhelm, 80 F.3d 116, 121-22 (4th Cir. 1996);

United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995).

Having reviewed the materials submitted in the joint appendix and


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supplemental appendix, we conclude that the district court did not

err in applying the good faith exception in this case.

            Next, Saunders argues that the district court should have

issued a multiple conspiracy instruction to the jury, or, in the

alternative, the court erred in denying his motions for a new trial

and for a judgment of acquittal. A multiple conspiracy jury charge

is required only when “the proof at trial demonstrates that [the

defendant was] involved only in separate conspiracies unrelated to

the   overall     conspiracy    charged    in    the   indictment.”      United

States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000).

            A trial court commits reversible error by not giving such

an instruction only when the defendant can establish that he or she

was “prejudiced by the variance between the single conspiracy

charged in the indictment and the multiple conspiracies proven at

trial.”     Id.    at   575    (citation   and    internal   quotation   marks

omitted).    To establish prejudice, the defendant must show that

“there are so many defendants and so many separate conspiracies

before the jury that the jury was likely to transfer evidence from

one conspiracy to a defendant involved in an unrelated conspiracy.”

Id.   As the district court properly found on several occasions

throughout the proceedings, a multiple jury instruction would not

have been appropriate, Saunders suffered no prejudice from the

refusal of a multiple conspiracy instruction, and there is no




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material variance between the indictment and the Government’s

evidence at trial requiring reversal.

            Finally, Saunders argues for the first time on appeal

that the district court erred by sentencing him under the then-

mandatory sentencing guidelines, and that he was prejudiced by this

error because there is a nonspeculative reason to conclude he would

have been sentenced to a term of imprisonment one month shorter had

the district court applied the guidelines in an advisory manner.

            In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court concluded that even in the absence of a Sixth

Amendment   violation,    the   imposition   of   a   sentence   under   the

mandatory guidelines scheme was error.       Id. at 267-68 (Breyer, J.,

opinion of the Court); see also United States v. White, 405 F.3d

208, 216-17 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).         As we

explained in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),

sentencing under a mandatory scheme is “a separate class of error

. . . distinct from the Sixth Amendment claim that gave rise to the

decision in Booker.”     Id. at 553.   We recognized that “[t]his error

. . . may be asserted even by defendants whose sentences do not

violate the Sixth Amendment.”      Id.

            In White, 405 F.3d at 215, we reviewed for plain error

where the mandatory application of the guidelines was not raised in

the district court, and held that treating the guidelines as

mandatory was plain error in light of Booker.          Id. at 216-17.     We


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declined to presume prejudice, id. at 217-22, holding that the

“prejudice inquiry, therefore, is . . . whether after pondering all

that happened without stripping the erroneous action from the

whole, . . . the judgment was . . . substantially swayed by the

error.”     Id.   at   223   (internal   quotation   marks   and   citations

omitted).    To make this showing, 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.”         Id. at 224.    Because “the

record as 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

(quoting Williams v. United States, 503 U.S. 193, 203 (1992)), we

concluded in White that the error did not affect the defendant’s

substantial rights, and thus affirmed the sentence.           Id. at 225.

            Here, Saunders asserts that a statement by the district

court at the sentencing hearing provides a nonspeculative basis for

concluding that the application of the guidelines as mandatory

affected the sentence imposed.           Specifically, he points to the

district court’s comment that “I do believe that in the facts as I

see them now concerning Mr. Saunders, the mandatory minimums do set

a sentencing range that is more than sufficiently high with regard

to Mr. Saunders.”       However, the district court noted Saunders’

disruptive behavior immediately thereafter and commented that:


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     I am sorry that he has taken that tact that he has taken
     here today, but I am not going to use that as a
     justification for sentencing him above the bottom of the
     guidelines. He is facing 1 month over 15 years at the
     bottom of these guidelines, and I think, under the
     circumstances, that is sufficient.

           On   this   record,   we   conclude   that   Saunders    has   not

presented a nonspeculative basis to conclude that the mandatory

nature of the guidelines affected the sentence that the district

court imposed.

           Accordingly, we affirm the judgment of the district

court.   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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