                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 05a0480n.06
                                  Filed: June 8, 2005

                                        No. 04-3834/3897

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                         ON APPEAL FROM THE UNITED
                                                           STATES DISTRICT COURT FOR
RALPH L. GOLIDAY,                                          THE NORTHERN DISTRICT OF
                                                           OHIO
          Defendant-Appellant.




                                                      /

Before:          MARTIN and ROGERS, Circuit Judges, and McKINLEY, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge. On March 10, 2004, a jury found the defendant,

Ralph Goliday, guilty of one count of possession with intent to distribute crack cocaine and one

count of possession with intent to distribute powder cocaine, both in violation of 21 U.S.C. §

841(a)(1). On June 3, 2004, the district court sentenced the defendant to two-hundred-forty months

imprisonment. Goliday appeals, arguing that the search that led to the discovery of the crack

cocaine and powder cocaine violated his Fourth Amendment rights, and that a firearm and bullet-

proof vest were improperly admitted into evidence at his trial. Goliday also argues that his sentence

was unconstitutionally increased based on conduct not proved beyond a reasonable doubt in



          *
        The Honorable Joseph H. McKinley, Jr. United States District Judge for the Western District
of Kentucky, sitting by designation.
No. 04-3834/3897
United States v. Goliday
Page 2

violation of the Sixth Amendment. For the following reasons we AFFIRM Goliday’s conviction and

sentence.

                                                 I.

       Goliday was on probation and under supervision by the Trumbull County, Ohio, Adult

Probation Department during the incident in this case. Vincent Peterson was his supervising

probation officer. On the evening of August 22, 2002, Peterson received a call from Drug

Enforcement Administration Agent Melanie Gambill, who informed him that Robert Boone was

possibly located at Goliday’s known residence. Boone was a probationer that Peterson’s chief

operations officer, Keith Evans, had asked Peterson to locate. Peterson then called another

probation officer, Officer Miles, and the two of them arranged to meet and attempt to locate Boone

at Goliday’s residence. Peterson and Miles drove separately and met outside Goliday’s residence.

Peterson testified that while there were numerous cars located outside the residence, Boone’s car

was not among them. Peterson and Miles then decided to stop in to talk with Goliday, but first

dropped Miles’s car back at their office.

       When they returned to Goliday’s residence, Peterson and Miles got out of Peterson’s car and

approached the house. They knocked on the door and an individual answered and asked what they

wanted. Peterson and Miles answered that they were there to see “Ralph” and were let into the

house. The door opened directly into the kitchen, which is where the Peterson and Miles were

standing when they viewed what appeared to be a clear plastic bag of marijuana sitting in plain view

on top of a drier located in the kitchen. Peterson and Miles then walked into the living room, at

which time Goliday streaked naked out of a bedroom and ran down the hallway into the bathroom.
No. 04-3834/3897
United States v. Goliday
Page 3

Peterson then walked down the hallway, stood outside the bathroom door, and asked Goliday to get

dressed and come out. Goliday agreed to come out and Peterson walked back out to the living room

while Goliday went into the bedroom and got dressed.

       While standing in the living room, Peterson and Miles saw, in plain view, a pellet gun.

When Goliday entered the living room, Peterson stated that he and Miles wished to do a probation

search based on their discovery of the marijuana and Goliday’s naked run through the house.

Goliday protested and repeatedly suggested that he and the probation officers discuss the matter

outside. The officers told Goliday to sit down because they were going to search the house. While

Goliday was then repeatedly insisting that he had to return to the bathroom first, a black female

knocked on the front door. Peterson opened the door slightly and asked what she needed and she

replied, “Let me get a 20.” She then clarified to Peterson that she wanted a twenty-dollar rock of

crack cocaine and Peterson told her to leave. Then another individual, who identified himself as

Goliday’s uncle, knocked on a side-door and told the officers that he was there to collect twenty

dollars that Goliday owed him. When Peterson returned to the living room, Goliday continued to

insist that he needed to use the bathroom. Peterson then decided to search the bathroom for drugs,

and while engaged in a search he discovered what appeared to be chunks of rock cocaine in the

toilet. Peterson scooped the rocks out of the toilet with a utensil he borrowed from the kitchen. He

also noticed a green plate covered with what appeared to be a crack-like residue.

       Peterson then returned to the living room, at which time a white female came to the door to

purchase the apparently quite popular twenty-dollar rock of crack cocaine. After she was turned

away, two white males came to the door also asking to purchase a twenty-dollar rock of crack
No. 04-3834/3897
United States v. Goliday
Page 4

cocaine. Peterson then noticed that the man who identified himself as Goliday’s uncle was peering

through a little window in the living room demanding his twenty-dollars. Goliday told Peterson to

“[t]ell that cat to get away from here” because he did not owe him any money. Peterson so

instructed the man.

       Due to all of the activity at the residence, Peterson then decided to call Agent Gambill and

requested assistance. Peterson suspended the probation search while waiting for Gambill to arrive

because of his concern over the number of people approaching the house. Approximately thirty

minutes later Gambill arrived along with Detective Weber, and the four officers engaged in a full

search of the house. During this search they discovered additional crack cocaine, powder cocaine,

a handgun, and a bullet-proof vest. The drugs seized led to the indictment in this case. The district

court denied Goliday’s motion to suppress the evidence and Goliday was convicted after a jury trial.

The court then sentenced Goliday to two-hundred-forty months for the crack cocaine conviction and

two-hundred-thirty-five months for the powder cocaine conviction, the sentences to be served

concurrently.

                                                 II.

                                      A. Motion to Suppress

       We review a district court’s factual findings underlying its denial of a motion to suppress for

clear error and its conclusions of law de novo. United States v. Freeman, 209 F.3d 464, 466 (6th

Cir. 2000). Because we find no error in the district court’s judgment, we affirm its denial of

Goliday’s motion to suppress the evidence obtained during the probation search.
No. 04-3834/3897
United States v. Goliday
Page 5

       In Griffin v. Wisconsin, the Supreme Court made clear that a state may provide for searches

of parolees and their property without a warrant and based on less than probable cause. 483 U.S.

868, 873 (1987). Probation officers must have at least reasonable suspicion that the parolee is not

abiding by the law. United States v. Payne, 181 F.3d 781, 787-88 (6th Cir. 1999). The special needs

of the parole system justify this lesser standard and potential parolees who do not want to be subject

to these searches have the choice of remaining incarcerated. Ohio law provides for probation

searches based upon reasonable suspicion and is thus consistent with the Fourth Amendment. See

Ohio Rev. Code § 2951.02(C)(2).1

       The district court found that Peterson had reasonable suspicion to search the residence upon

noticing the suspected marijuana in plain view coupled with Goliday’s naked dash through the house

and subsequent suspicious behavior. Goliday does not seem to dispute that reasonable suspicion

existed; rather, he argues that Agent Gambill’s and Detective Weber’s warrantless search violated

his Fourth Amendment rights, and further that Peterson and Miles acted as a “stalking horse” for the

police officers — that is, the probation officers used their ability to search based on less than

probable cause to gather evidence for Gambill, who could not otherwise obtain it because she lacked

probable cause for a search.




       1
         The statute in effect at the time provided: “During the period of a misdemeanor offender’s
probation . . . authorized probation officers who are engaged within the scope of their supervisory
duties or responsibilities may search . . . without a warrant, the person of the offender, the place of
residence of the offender, and a motor vehicle . . . if the probation officers have reasonable grounds
to believe that the offender is not abiding by the law or otherwise is not complying with the
conditions of the offender’s probation.” Ohio Rev. Code § 2951.02(C)(2) (2001).
No. 04-3834/3897
United States v. Goliday
Page 6

       We agree with the district court that the circumstances provided reasonable suspicion for the

probation officers to conduct a search of Goliday’s residence. As Goliday does not seem to dispute

the district court’s finding, we decline to analyze this issue any further. We also agree with the

district court’s conclusion that Goliday failed to demonstrate that the probation officers’ search was

a ruse to gain access to Goliday’s residence on behalf of Gambill or Weber. Searches conducted by

probation officers who act as “stalking horse[s]” for police, in effect abusing their authority and

circumventing the warrant requirement of the Fourth Amendment, may be unlawful. See United

States v. Russ, 23 Fed. Appx. 245, 2001 WL 1136127 (6th Cir. 2001) (unpublished); United States

v. Grimes, 225 F.3d 254, 259 (2d Cir. 2000); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.

1997); United States v. Ooley, 116 F.3d 370, 372 (9th Cir. 1997); United States v. McCarty, 82 F.3d

943, 947 (10th Cir. 1996). But see United States v. Knights, 534 U.S. 112, 121-22 (2001). Probation

officers and police officers nevertheless may work together in conducting a search provided that the

parole officer is pursuing parole-related objectives. Russ, 23 Fed. Appx. at 247 (citing McFarland,

116 F.3d at 318). That is, for purposes of Ohio law, the probation officer must be “engaged within

the scope of [his or her] supervisory duties or responsibilities” and has “reasonable grounds to

believe that the offender is not abiding by the law or otherwise is not complying the conditions of

the offender’s probation.” Ohio Rev. Code § 2951.02(C)(2).

       We agree with the district court that there is no evidence Peterson and Miles acted as

“stalking horse[s]” for Agent Gambill or Detective Weber. The only reason Peterson and Miles

went to Goliday’s residence in the first place was because they were looking for Boone, another

probationer. After viewing numerous cars and persons at Goliday’s residence, the probation officers
No. 04-3834/3897
United States v. Goliday
Page 7

decided to stop in and speak with Goliday. They were allowed access to the house, via the kitchen,

where the observed what they believed to be was a bag of marijuana, followed by Goliday’s naked

sprint through the house. Before conducting any search, the officers met with Goliday in the living

room. During this time, a woman came to the door attempting to buy crack and a man came to the

door demanding money from Goliday. Only then did the officers begin their search and discovery

of additional crack cocaine. The search was continually interrupted by additional individuals

attempting to purchase drugs from Goliday, and only then — concerned for their safety and ability

to conduct the search — did the probation officers contact Agent Gambill to ask for assistance.

Based on these circumstances, we see no evidence that the probation officers’ search was a ruse

conducted at the behest of or for the benefit of Agent Gambill or Detective Weber. We affirm the

district court’s denial of Goliday’s motion to suppress.

                           B. Admission of Firearm and Bullet-Proof Vest

       Goliday also argues that the admission of the firearm and bullet-proof vest over his objection

was erroneous. We review a district court’s decision to admit evidence pursuant to Federal Rule of

Evidence 403 for abuse of discretion. United States v. Henley, 360 F.3d 509, 518 (6th Cir. 2004).

Relevant evidence, that is, evidence having “any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it would be

without the evidence,” Fed. R. Evid. 401, is made generally admissible by Federal Rule of Evidence

402. A district court, however, may exclude relevant evidence if “its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
No. 04-3834/3897
United States v. Goliday
Page 8

Fed. R. Evid. 403. We will reverse a district court’s decision to admit relevant evidence only if it

was an abuse of discretion and the error was not harmless. Diamond v. Howd, 288 F.3d 932, 934

(6th Cir. 2002).

       We have long recognized firearms and ammunition as tools of the drug trafficking trade and

have consistently concluded that a district court does not abuse its discretion by admitting such

evidence when it is related to the crime charged. United States v. Arnott, 704 F.2d 322, 325-26 (6th

Cir. 1983). We have, however, held that when a defendant is not charged with a firearms violation

and a firearm is not relevant to the crimes charged, a district court abuses its discretion in admitting

the firearm. See e.g., Brubaker v. United States, 183 F.2d 894, 898 (6th Cir. 1950) (holding that “the

presence of the revolvers in his suitcase had no bearing whatsoever upon the charge of receiving the

stolen car”). Nonetheless, we have recognized that “dealers in narcotics are well known to be

dangerous criminals usually carrying weapons,” United States v. Korman, 614 F.2d 541, 546 (6th

Cir. 1980), and in the words of the Second Circuit, “[e]xperience on the trial and appellate benches

has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade

almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics

equipment,” United States v. Wiener, 534 F.2d 15, 18 (2d Cir. 1976).

       Goliday was discovered with a substantial amount of crack cocaine and powder cocaine, and

the officers observed numerous individuals attempt to purchase narcotics from Goliday.

Additionally, the handgun and ammunition in this case was found in the northwest bedroom of

Goliday’s residence along with the cocaine and two pit-bull dogs standing guard. Under these
No. 04-3834/3897
United States v. Goliday
Page 9

circumstances, we find that the district court did not abuse its discretion in admitting the handgun,

ammunition, and bullet-proof vest as evidence of Goliday’s intent to engage in the drug trade.

                                               III.

       Finally, Goliday argues that he was unconstitutionally sentenced based upon the principles

articulated in Blakely v. Washington, 124 S. Ct. 2531 (2004). Specifically, Goliday argues that the

district court improperly increased his base offense level two points because it found that a handgun

was present during the commission of the crime of possession of crack cocaine with the intent to

distribute. The Supreme Court in United States v. Booker, 125 S. Ct. 738 (2005), concluded that the

Sixth Amendment, as construed in Blakely, does apply to the federal sentencing guidelines. Thus,

“[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. This

Court, and all other circuits to have addressed the issue, however, have concluded that Booker does

not compel resentencing when the defendant receives the statutorily prescribed mandatory minimum

sentence. United States v. Joiner, 123 Fed. Appx. 681, 2005 WL 351152 (6th Cir. 2005)

(unpublished); United States v. Painter, 400 F.3d 1111, 1111 (8th Cir. 2005); United States v.

Moore, 401 F.3d 1220, 1222 n. 1 (10th Cir. 2005); United States v. Antonakopoulos, 399 F.3d 68,

75 (1st Cir. 2005) ("A mandatory minimum sentence imposed as required by a statute based on facts

found by a jury or admitted by a defendant is not a candidate for Booker error."); United States v.

Sharpley, 399 F.3d 123, 127 (2d Cir. 2005) (finding harmless error when a calculated guidelines

sentence was less than the statutory minimum and the district court gave the statutory minimum).
No. 04-3834/3897
United States v. Goliday
Page 10

       On count one, Goliday received a statutorily prescribed mandatory minimum sentence of

twenty years (or two-hundred-forty months). See 21 U.S.C. § 841(a)(1). On count two, he received

a Guidelines sentence of two-hundred-thirty-five months. The two point enhancement for the

possession of the firearm increased Goliday’s sentencing range from a range of one-hundred-fifty-

one to one-hundred-eighty-eight months to a range of one-hundred-eighty-eight months to two-

hundred-thirty-five months, and thus, violated his Sixth Amendment rights. Because the district

court imposed the sentences on the two counts to run concurrently, however, resentencing on count

two is not necessary — Goliday will serve two-hundred forty months in prison regardless of any

Sixth Amendment violation on count two. We therefore decline to remand for resentencing.

                                              IV.

       For the foregoing reasons, we affirm Goliday’s conviction and sentence.
