No. 13-4654
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Samuel G. Wilson, District
Judge. (7:12-cr-00057-SGW-1)
Submitted:
KEENAN,
Decided:
Circuit
Judges,
and
DAVIS,
Senior
PER CURIAM:
Demarcus Mandell Brown pleaded guilty pursuant to a
written plea agreement to distributing cocaine, in violation of
21 U.S.C. 841(a)(1), (b)(1)(C) (2012) (Count Four), using and
carrying a firearm during and in relation to, and in furtherance
of, a drug trafficking crime, in violation of 18 U.S.C. 924(c)
(2012) (Count Five), and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. 922(g)(1) (2012) (Count Six).
On appeal, Brown alleges that: (1) the district court improperly
refused
to
suppress
evidence
seized
from
his
residence
and
the
rights.
suppression
hearing
violated
his
Sixth
Amendment
We affirm.
Following
multiple
controlled
purchases
of
cocaine
Police
Detective
Kelly
Jennings
applied
for
search
prior
to
certain
transaction,
detectives
saw
Brown
arrive at his residence, and then quickly enter and exit the
2
building.
application,
search
warrant
issued
Based on
for
Browns
residence.
Following
subsequent
controlled
transaction,
Brown
Franks
other
police
detective,
and
Brown.
After
hearing
the
testimony and the parties arguments, the court found that Brown
failed to make the necessary showing and denied his suppression
motion.
During pretrial preparation, the government learned of
a police incident report (incident report) that stated the
confidential informant in Browns case lied to Jennings in a
controlled drug transaction in an unrelated investigation. 1
The
The incident
postdated Jennings
Browns residence.
Brown
At
the
scheduled
sentencing
hearing,
the
district
Brown first
application
to
the
and
probable
that
these
cause
false
statements
determination.
This
were
court
United
States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (internal
quotation marks omitted).
establish
the
need
for
Franks
hearing,
United
States
v.
United States
v. Tate, 524 F.3d 449, 454 (4th Cir. 2008) (internal quotation
marks omitted).
Brown
primarily
argues
that
Jennings
falsely
stated
We agree
statements
that
were
intentionally
or
recklessly
district
States
v.
courts
Abu
Ali,
credibility
528
F.3d
determination.
210,
232
(4th
See
United
Cir.
2008).
Instead, the
at
383.
conclude
that
the
district
court
properly
Ineffective
Assistance
of
Counsel.
Browns
ineffective
cognizable
ineffectiveness
record,
on
is
direct
appeal.
conclusively
ineffective
apparent
assistance
Unless
claims
on
an
the
are
attorneys
face
not
of
the
generally
United
States
2010).
Because
v.
Baptiste,
there
is
596
no
F.3d
214,
conclusive
216
n.1
evidence
(4th
of
Cir.
ineffective
Brady Violation.
Cir. 2010).
Brown
may
not
assert
United States v.
constitutional
violation. 2
(5)
Sixth
Amendment.
Finally,
Brown
argues
that
Jennings
the
confidential
rights.
We
informant
review
alleged
violated
his
Confrontation
Sixth
Clause
Amendment
violations
In Crawford
did
not
appear
at
trial
unless
he
was
unavailable
to
confrontation
rights.
See
id.
at
60
n.9
(The
other
asserted.);
than
Fed.
R.
establishing
Evid.
the
801(c)
truth
(defining
of
an
the
matter
out-of-court
of
explaining
the
asserted).
See
v.
Love,
context
767
F.2d
for
1052,
the
statements
law
States
providing
Out-of-court
of
United
or
matter
1063
actions
(4th
Cir.
1985)
from another agent was offered not for its truth but only to
explain why the officers and agents made the preparations that
they did in anticipation of the appellants arrest.).
the
confidential
offered
for
informants
their
truth,
statements
but
for
the
to
Jennings
limited,
Here,
were
not
permissible
with
oral
we
affirm
argument
the
because
judgment
the
below.
facts
and
We
legal
AFFIRMED