Thursday, April 02, 2009

Search, Conviction Upheld, Sentence Vacated in Drugs/Guns Case

US v. Perry: Perry was convicted on drug and gun charges following both a search of his home and a series of controlled buys. Perry unsuccessfully sought to suppress marijuana and firearms found during the search as well as incriminating statements made that day. He was convicted (but not on all counts) after a jury trial and sentenced to 230 months in prison.

On appeal, Perry made several attacks on his conviction, all of which the Fourth Circuit turned away. First, Perry argued that the marijuana and firearms found during the search of his home should have been suppressed because those objects were not specified as the targets of the warrant and the warrant was not supported by probable cause. The court concluded that there was sufficient probable cause to justify the search and that the warrant covered both "other controlled substances" and "firearms and weapons," thus the seizure was within its scope.

Second, Perry argued that statements he made while the search was ongoing should have been suppressed. Specifically, he argued that he was seized by police and not properly Mirandized when they came to his place of employment and drove him back to the house. The court affirmed the district court and concluded that it had not abused its discretion in concluding that Perry was not seized at that point and thus no Miranda warnings were needed. Third, Perry argued that there was not sufficient evidence to support a conviction under 924(c) based on firearms found in his home. The court disagreed, noting the proximity of the firearms to the marijuana in the house as well as concluding that the guns were part of Perry's plan to "protect his business dealings" along with the video surveillance system used at the house.

Finally, the court rejected Perry's arguments that the 924(c) conviction amounted to an impermissible amendment of the indictment and that the jury instructions on that count were flawed.

As to Perry's sentence, the court turned away Perry's argument that the district court erred by using acquitted conduct as a basis for determining his Guideline range. However, the court did remand Perry's sentence for reconsideration in light of Kimbrough, given that Perry unsuccessfully argued for a variance from the crack-related Guideline range based on the inequities inherent in the 100-to-1 powder/crack ratio.

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