                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-28-2008

USA v. Evans
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2650




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Evans" (2008). 2008 Decisions. Paper 1374.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1374


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 06-2650
                                      ____________

                            UNITED STATES OF AMERICA

                                              v.

                                    STEVEN EVANS,

                                            Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                       (D.C. Nos. 04-cr-00584 and 04-cr-00586)
                      District Judge: Honorable Timothy J. Savage
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 6, 2008

              Before: FISHER, GREENBERG and ROTH, Circuit Judges.

                                  (Filed: March 28, 2008)
                                       ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Two issues are raised in this criminal appeal: the validity of a search warrant

precedent to a vehicle search and the validity of a sentence that did not distinguish
between crack and cocaine base for purposes of the criminalizing statute. For the reasons

that follow, we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On September 22, 2004, the Government filed a four-count indictment against

Steven Evans on drug (Counts I and II) and firearm (Counts III and IV) charges.

       An evidentiary hearing on Evans’ motion to suppress was conducted on April 14

and 19, 2005. There, Officer Timothy Riley testified to his activities on January 8, 2003,

from approximately 8:20 to 9:15 in the evening. He and another officer had established a

surveillance on the 4400 block of Colorado Street in Philadelphia, following complaints

of drug sales and drug-related shootings in the area. Officer Riley noticed that Evans was

standing on the west side of Colorado Street in front of a black 1998 Chevrolet Tahoe

parked in front of 4450 North Colorado Street.

       Within five minutes, Officer Riley, with the aid of binoculars, saw an individual

approach Evans and exchange money for “something” that Evans took out from the

Tahoe. Shortly thereafter, Officer Riley observed a similar engagement between Evans

and another individual. After driving away from the block, Evans returned approximately

30 minutes later and encountered Izell Stewart, who gave Evans money in exchange for

an object, again removed from the Tahoe. Police stopped Stewart as he walked away

                                              2
from the area, and found on his person a small green packet and a small clear packet, both

containing cocaine base. Shortly thereafter, at approximately 9:15, Evans walked away

from the Tahoe to 1708 Wingohocking Avenue, where officers arrested him.

       Officers then opened the Tahoe (still parked on Colorado Street) and determined

that no one else was inside. They then transported the car to police headquarters using a

key they recovered from Evans. Officer Riley then applied for and obtained Search

Warrant Control No. 107057 to search the Tahoe. The affidavit accompanying the

warrant detailed the above facts of January 8, 2003. Upon executing the warrant, officers

seized thirty-three green plastic packets of cocaine base, six clear baggies of cocaine base,

$200 cash, a loaded Glock 9 mm semiautomatic pistol, and fifteen live rounds. After

concluding the hearing, the District Court denied the motion to suppress.

       On September 19, 2005, the matter proceeded to trial. The jury found Evans guilty

on all four counts. On May 4, 2006, the District Court sentenced Evans to 6 months on

Counts I and IV concurrently, 60 months on Count II consecutively, and 60 months on

Count III consecutively, for an aggregate sentence of 126 months, which is below the

applicable Guidelines range of 157 to 181 months. Evans filed a timely notice of appeal.

                                             II.

       We have jurisdiction under 28 U.S.C. § 1291. United States v. Perez, 280 F.3d

318, 327 (3d Cir. 2002). We review “the District Court’s denial of a motion to suppress

for clear error as to the underlying factual findings and exercise[] plenary review of the

District Court’s application of the law to those facts.” Id. at 336. We also exercise

                                             3
plenary review over sentencing claims raising purely legal issues of statutory

interpretation. See United States v. Singletary, 268 F.3d 196, 199 (3d Cir. 2001).

                                               A.

       Evans argues first that the District Court should have granted his motion to

suppress because the warrant underlying the search of his Tahoe was not supported by

probable cause. In considering this argument we must determine “whether, given all the

circumstances set forth in the affidavit . . . there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” United States v. Williams, 124

F.3d 411, 420 (3d Cir. 1997) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

       Here, there was ample information set forth in the affidavit to support the

determination that evidence of crime would be found in the Tahoe. Officer Riley

observed three transactions with different individuals in which Evans reached into the

Tahoe to procure objects upon receipt of cash. The third transaction (involving Stewart)

yielded the seizure of cocaine base on Stewart’s person just moments after his encounter

with Evans. There was thus a fair probability that more such contraband would be found

in the Tahoe. Based on this information and other circumstances pertinent to an

experienced narcotics officer, Officer Riley applied for a warrant to search the Tahoe.

       We previously have found probable cause under similar circumstances. In United

States v. Burton, 288 F.3d 91 (3d Cir. 2002), we approved a vehicle search because the

officers observed the defendant “leave what they thought to be a drug deal and place the

results of that transaction in his trunk.” Id. at 100. Further, that case dealt with a

                                               4
warrantless search, so in this case we are even more constrained – as was the District

Court – to disturb the independent approval of probable cause signified by a warrant. See

United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (“The issuing judge or

magistrate may give considerable weight to the conclusions of experienced law

enforcement officers regarding where evidence of a crime is likely to be found and is

entitled to draw reasonable inferences about where evidence is likely to be kept, based on

the nature of the evidence and the type of offense.”). Accordingly, there was probable

cause to support the search warrant that Evans challenges, and the District Court correctly

denied his motion to suppress the fruits of the search conducted pursuant to that warrant.

                                            B.

       As to his sentence, Evans challenges only the 60 months (five years) he received

on Count II: possession of cocaine base with intent to distribute. He argues that we

should overrule United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001), which held that

“‘cocaine base’ encompasses all forms of cocaine base with the same chemical formula

when the mandatory minimum sentences under 21 U.S.C. § 841(b)(1) are implicated.”

Id. at 467. Section 841(b)(1) imposes a five-year mandatory minimum for offenses

involving five grams or more of cocaine base. Evans concedes that the jury found him

guilty of possession with intent to distribute more than five grams of cocaine base, but

argues that § 841(b)(1)’s definition of “cocaine base” means crack only and not the form

of cocaine base that the record showed he possessed. Evans acknowledges that Barbosa

squarely forecloses that argument.

                                             5
       Other than citing cases from other courts of appeals predating and thoroughly

analyzed in Barbosa, Evans does not cite any authority that overrules or abrogates

Barbosa. Our cases “loosening” the 100:1 crack/powder cocaine ratio are inapposite

because they deal with the Sentencing Guidelines, not the statutory mandatory minimum.

See, e.g., United States v. Gunter, 462 F.3d 237, 248-49 (3d Cir. 2006) (distinguishing

between Sentencing Guidelines and the minima and maxima of § 841(b)). The same can

be said for Kimbrough v. United States, 128 S. Ct. 558 (2007), in which the Supreme

Court held that a district court should be free to consider the disparity inherent in the

Guidelines ratio when considering a sentence’s reasonableness. Id. at 573. Neither

Kimbrough nor our cases authorize a district court to exempt non-crack forms of cocaine

base from the definition of cocaine base for purposes of § 841(b)(1), so we have no

occasion here to reconsider Barbosa.

                                             III.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                              6
