UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4448

DONNA M. WALTERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Thomas A. Wiseman, Jr., District Judge.
(CR-95-58)

Submitted: October 30, 1998

Decided: January 25, 1999

Before WILKINSON, Chief Judge, and WIDENER and ERVIN,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Calvin E. Murphy, MURPHY & CHAPMAN, P.A., Charlotte, North
Carolina, for Appellant. Mark T. Calloway, United States Attorney,
Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Donna M. Walters appeals from her conviction, following a jury
trial, of conspiracy to possess with intent to distribute and distribution
of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994).
Walters contends that the district court erred in denying her motion
to suppress, admitting testimony of a co-conspirator's statement, and
calculating the amount of drugs attributable to her. Finding no error,
we affirm.

On February 15, 1995, Special Agent Terry A. Tadeo of the Bureau
of Alcohol, Tobacco, and Firearms, and Charlotte Police Officer T.E.
Bevins were conducting surveillance of Walters' residence. They
observed Walters leave the premises driving a vehicle registered to
her. A search of the vehicle revealed a pouch of marijuana located
behind the driver's seat. Walters and a passenger, Linda Ellis, were
arrested for possession of marijuana. Ellis waived her Miranda*
rights and informed the officers that she had been smoking crack
cocaine in Walters' residence prior to the traffic stop and that there
was "possibly" more crack inside the residence. Based largely on
Ellis' statement to the authorities, the officers applied for and
received a search warrant for Walters' residence from a state magis-
trate. The application for the warrant, however, omitted any reference
to the date or time that Ellis was in Walters' residence smoking crack
or exactly when she observed the crack in the residence. Further, the
application omitted any reference to the date or time that Ellis pro-
vided this information to the officers, upon which the magistrate
relied in issuing the search warrant.

A search of Walters' residence revealed a box of .380 ammunition
and the defendant's resident alien card. Behind the house, the officers
_________________________________________________________________
*Miranda v. Arizona, 

(1966).

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located a set of triple-beam scales, and in the trash can, which was
pushed up against the side of the house, the officers found partially
empty boxes of baking soda, dozens of baggies with the corners
removed, and packaging commonly used for wrapping narcotics.

After conducting a hearing, the magistrate judge recommended
granting Walters' motion to suppress the evidence found at her resi-
dence. The district court, however, declined to accept the magistrate
judge's recommendation and denied the motion to suppress. The dis-
trict court found that the search of the residence was constitutionally
valid because the officers' conduct fell within the good faith excep-
tion to the warrant requirement. The district court found that there
was no evidence that the officers were dishonest or reckless in prepar-
ing the affidavit to support the warrant. The court further concluded
that given all of the information available to the officers, "the offi-
cers' beliefs in the existence of probable cause and their reliance on
the state court magistrate's determination of probable cause were not
objectively unreasonable." (J.A. Vol. I, at 47).

Walters contends on appeal that the district court erred in finding
that the search was lawful under the good faith exception to the war-
rant requirement. She asserts that under the circumstances, the offi-
cers could not have harbored an objectively reasonable belief in the
existence of probable cause.

On motions to suppress evidence, this court reviews the district
court's factual findings under the clearly erroneous standard and
reviews the legal conclusions de novo. See United States v. Rusher,

, 873 (4th Cir. 1992). Under the good faith exception to
the warrant requirement, evidence obtained from a defective search
warrant will not be suppressed unless one of the following situations
is present: (1) the officers were dishonest or reckless in preparing
their affidavit; (2) the magistrate acted as a rubber stamp for the offi-
cers; (3) the magistrate did not have a substantial basis for determin-
ing the existence of probable cause; or (4) the officers could not have
harbored an objectively reasonable belief in the existence of probable
cause. See United States v. Leon, 

, 926 (1984). A review-
ing court may proceed to the good faith exception without first decid-
ing whether there was probable cause to support the warrant. See

                    3


; United States v. Legg , 

, 243 (4th
Cir. 1994).

Without deciding whether the affidavit was sufficient to establish
probable cause, we find that the facts and circumstances set out in the
affidavit provided the officers with an objectively reasonable belief in
the existence of probable cause. The officers were present at Walters'
residence and observed Walters and Ellis leave the premises in Wal-
ters' car. The officers stopped the car as it was leaving the premises
and a search revealed marijuana. Ellis stated that she had been smok-
ing crack in Walters' residence just prior to being stopped. Further,
the officers were aware that Walters had been arrested four previous
times for possession with intent to sell or deliver cocaine, including
an arrest just six weeks prior to the instant offense. On the facts, we
find that the district court properly denied Walters' motion to sup-
press the evidence based on the Leon good faith exception.

Next, Walters contends that the district court abused its discretion
in admitting witness testimony regarding Walters' statements to a co-
conspirator. She asserts that a statement allegedly made to co-
conspirator Stacy Dooley that "[Walters] would pistol whip Dooley
for messing up her drugs," was inadmissible hearsay offered only to
show Walters' propensity for violence.

We review the district court's evidentiary rulings for an abuse of
discretion. See United States v. Brooks, 

, 371 (4th Cir.
1997). Hearsay is defined as "a statement, other than one made by the
declarant while testifying at trial or hearing, offered in evidence to
prove the truth of the matter asserted." Fed. R. Evid. 801(c).

The district court correctly concluded that Scotty McKnight's testi-
mony regarding the telephone conversation where Walters threatened
to pistol-whip Dooley was not inadmissible hearsay. The Government
tendered the evidence to show that Walters had a gun and that she
would use the weapon to facilitate the objectives of the conspiracy.
See United States v. White, 

, 433 (4th Cir. 1989) (noting
that "it is not unreasonable to recognize that weapons have become
`tools of the trade' in illegal narcotics operations"). We find that the
district court's admission of the testimony was not an abuse of discre-
tion.

                    4
Lastly, Walters contends that the district court erred in calculating
the amount of crack cocaine attributable to her for sentencing pur-
poses. We review the trial court's factual determinations as to drug
quantity for sentencing purposes for clear error. See United States v.
Fletcher, 

, 55 (4th Cir.), cert. denied, -- U.S. --, 

(U.S. Oct. 7, 1996) (No. 95-9447). If the defendant
objects to a quantity recommended in a presentence report, the district
court must make an independent resolution of the factual issues raised
by the objection. U.S. Sentencing Guidelines Manual § 6A1.3 (1997);
United States v. Gilliam, 

, 1013 (4th Cir. 1993). In cal-
culating the drug quantity attributable to a defendant, the district court
may consider any relevant evidence before it, including hearsay testi-
mony. See United States v. Bowman, 

, 381 (4th Cir.
1991). The government must establish the quantity attributable to the
defendant by a preponderance of the evidence, and may do so through
the introduction of relevant and reliable evidence. See United States
v. Jones, 

, 1316 (4th Cir. 1994).

The district court found an aggregate amount of at least 500 grams
of cocaine base, or "crack" cocaine, attributable to Walters through
her involvement in the conspiracy. The district court based this find-
ing on the testimony of multiple witnesses, as summarized by Officer
Tadeo at the sentencing hearing. Specifically, Steven Roland testified
that he was involved in, or witnessed, transactions with Walters for
205.54 grams of crack cocaine. Further, transcripts of tape recorded
telephone conversations were introduced at trial, showing that Wal-
ters agreed to sell 127.58 grams of crack cocaine to co-conspirators.
In addition, Walters confessed to distributing approximately 105
grams of crack within the two months prior to her arrest. Finally,
when Walters was arrested, a search of her car revealed 20.5 grams
of crack cocaine. Based on the above transactions, the district court
found that the amount of crack cocaine attributable to Walters was in
excess of 500 grams. The sum of these transactions was actually less
than 500 grams of crack cocaine. Notwithstanding the district court's
mathematical miscalculation, however, a review of the trial transcript,
on which the district court relied in determining the amount of drugs,
reveals an additional sale of 56.7 grams of crack cocaine which was
witnessed by Stacey Dooley. (Supp. J.A. 185). Thus, the district
court's finding that Walters sold more than 500 grams of crack
cocaine was not clearly erroneous.

                     5
Accordingly, we affirm Walter's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not significantly aid the decisional process.

AFFIRMED

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