NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                _______________

                      10-1590
                  _______________

          UNITED STATES OF AMERICA

                          v.

                  JOHN EVERETT,

                               Appellant

                  _______________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
       (D.C. Criminal No. 1-09-cr-00082-001)
         District Judge: Hon. Sylvia H. Rambo
                   _______________

    Submitted Pursuant to Third Circuit LAR 34.1(a)
                    April 15, 2011

BEFORE: FISHER, JORDAN and COWEN , Circuit Judges

                 (Filed May 3, 2011)
                  _______________

                     OPINION
                  _______________
COWEN, Circuit Judge.



       John Everett appeals from the criminal judgment entered by the United States

District Court for the Middle District of Pennsylvania. We will affirm.

                                              I.

       Everett was arrested on December 17, 2008 by agents of the Pennsylvania Office

of Attorney General‟s Bureau of Narcotics Investigation for state drug trafficking and

firearms offenses following several undercover drug purchases and the search of a

building owned by Everett pursuant to a search warrant (which uncovered, inter alia,

crack cocaine, drug-related paraphernalia, cash, and a handgun). On December 18, 2008,

state authorities notified their federal counterparts of Everett‟s arrest and the state charges

against him. On March 4, 2009, a federal grand jury indicted Everett on one count of

possession with intent to distribute 50 grams or more of cocaine base and cocaine under

21 U.S.C. § 841(a). A federal arrest warrant was issued on the same day. Meanwhile, the

state court proceeding went forward, with the Commonwealth providing discovery to the

defense counsel on March 6, 2009 and the defense filing a motion to suppress on March

30, 2009. A suppression hearing and trial was scheduled for May 6, 2009. On this date,

Everett appeared with counsel at the Dauphin County Courthouse, but, as they were

entering the courtroom, federal agents arrested Everett on the outstanding federal arrest

warrant. He was then arraigned and ordered detained by a Magistrate Judge. On




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November 9, 2009, the Commonwealth petitioned to nolle prosequi the state prosecution

because of the federal indictment.

       Everett moved to dismiss the federal case as a vindictive prosecution and to

suppress the physical evidence obtained as a result of the search. After conducting a

suppression hearing, the District Court ultimately denied the requested relief on August

24, 2009. The parties then entered into a conditional plea agreement, which was accepted

by the District Court on October 28, 2009.

       The defense “argued that the Guideline range of 292 to 365 months incarceration

due to possession of „crack‟ cocaine instead of „powder‟ cocaine was unwarranted and

clearly reflected a disparate sentence in light of the Guidelines as they relate to „crack.‟”

(Appellant Counsel‟s Brief at 5.) The District Court, however, followed its general policy

of applying a one-level reduction in the offense level to account for the crack/powder

cocaine sentencing disparity, resulting in an advisory Guidelines range of 262 to 327

months. On February 22, 2010, the District Court sentenced Everett to 262 months of

imprisonment, and Everett filed a pro se notice of appeal.1

                                              II.



1
  The District Court had subject matter jurisdiction over this criminal proceeding pursuant
to 18 U.S.C. § 3231, and we have appellate jurisdiction under 18 U.S.C. § 3742 and 28
U.S.C. § 1291.

       On January 18, 2011, this Court granted the motions by Everett‟s counsel for leave
to file Everett‟s pro se supplemental brief and his pro se “Reply to Particularity
Argument” document. We accordingly have considered these pro se submissions in
addition to the briefs filed by counsel.
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       Everett contends that the District Court committed reversible error by failing to

grant his motion to dismiss on vindictive prosecution grounds, relying in particular on the

federal prosecutor‟s “explanation” at the initial hearing before the Magistrate Judge “that

the federal arrest had been designed to prevent Mr. Everett from attending his state trial

and pleading guilty (App 35-38).” (Appellant Counsel‟s Brief at 4.) “In the ordinary

case, „so long as the prosecutor has probable cause to believe that the accused committed

an offense defined by statute, the decision whether or not to prosecute, and what charge to

file or bring before a grand jury, generally rests entirely in his discretion.‟” United States

v. Armstrong, 

, 464 (1996) (quoting Bordenkircher v. Hayes, 

,

364 (1978)). Everett (through his counsel) acknowledges that there was no evidence that

“the prosecutor initiated the federal indictment against Mr. Everett due to any personal

animus, ill will, or bad motive.” (Appellant Counsel‟s Brief at 12.) In fact, even before

any substantive steps were taken in the state court proceeding, state officials notified their

federal counterparts of Everett‟s initial arrest, a federal indictment was returned, and a

federal arrest warrant was issued. His subsequent federal arrest at the courthouse, while

somewhat unusual, merely resulted in a delay in the state prosecution, which the

Commonwealth then moved to dismiss. In turn, the government quite reasonably points

out that it had a legitimate interest “in having this case resolved in one federal proceeding

without the complications that may arise from duplicate proceedings.” (Appellee‟s Brief

at 22 (citing A37).) Accordingly, the District Court appropriately rejected Everett‟s

vindictive prosecution claim.


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       It is undisputed in this appeal that a violation of procedural rules (such as the

failure to bring and present a copy of the search warrant at the time of the search) does

not automatically trigger the exclusion of evidence. However, Everett asserts that the

narcotics agents engaged in bad-faith or intolerable conduct, with Everett specifically

claiming, inter alia, that these agents repeatedly lied to him when he demanded that they

produce a search warrant or leave his property and that one of the agents went on to lie at

the suppression hearing by falsely stating that she gave him a copy of the warrant at the

jail the day following the arrest (when in fact he was not provided with the copy until

several days later). Nevertheless, the District Court committed no reversible error here

because, in the District Court‟s own words, the search warrant was issued by an

“impartial magistrate,” nothing but pure conjecture suggested that the agents‟ “sloppiness

in this instance rises to the level of bad-faith or intolerable conduct that is widespread,”

and Everett “has failed to demonstrate that he was prejudiced by his failure to receive a

copy of the warrant at the time of the search.” (A199.)

       As the District Court recognized, the Fourth Amendment requires warrants to

describe with particularity “the place to be searched, and the persons or things to be

seized.” Everett specifically contends that the evidence found at the building must be

suppressed because, among other things, the narcotics agents knew (or obviously should

have known or at least should have conducted a further investigation into the matter) and

then disclosed to the issuing authority the fact that the building in question had been

divided into separate apartments. Everett‟s Fourth Amendment claim must be rejected


                                              5
because the District Court, in a well-reasoned opinion, appropriately found that the

building had not yet been converted into apartments at the time that the search warrant

was obtained and when the search warrant was executed. While the agents were possibly

on notice that the building was in the process of being converted into apartments, they

had no reason to believe that the process had been finished. According to the District

Court, the second confidential informant, who visited the building approximately two

hours before the search warrant was issued, actually confirmed that the building was still

in the process of being remodeled and split up into apartments and that no one appeared

to live there. The District Court, in turn, properly noted that “the agents encountered a

house under construction with tools laying about, no furniture, no household goods or

personal effects, and most significantly, no doors separating the supposed apartments

from the common areas.” (A200.)

       Finally, Everett argues that his sentence must be overturned pursuant to the Fair

Sentencing Act of 2010 (which went into effect after Everett was sentenced) and the

allegedly applicable 1:1 crack/powder cocaine sentencing ratio. We reject his sentencing

claim because, among other things, Everett does not contest on appeal the government‟s

observation that the same range of 262 to 327 months ultimately adopted by the District

Court would apply even under the new sentencing regime given Everett‟s status as a

career offender.

                                            III.

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


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