Argued Oct. 25, 2012.
Michelle P. Brady, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.
John A. Goodridge, Evansville, IN, for Defendant-Appellant.
Before FLAUM, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
Tony Currie pleaded guilty to charges that he conspired to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possessed a firearm following a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The district court ordered him to serve a prison term of 121 months, at the low end of the range advised by the Sentencing Guidelines and just above what the court and the parties believed to be the statutory minimum prison term of ten years. Currie appeals, contending that the district court erroneously denied his motion to suppress evidence without conducting an evidentiary hearing and that its choice of sentence was premised on its mistaken understanding that the new, lower mandatory minimums specified by the Fair Sentencing Act of 2010 did not apply at Currie's sentencing. We find no error in the district court's decision to deny Currie's motion to suppress without an evidentiary hearing. As to his sentence, we order a limited remand for purposes of ascertaining whether the district court would be inclined to sentence Currie differently knowing that Currie is subject to the lower statutory minimum term of five years as provided by the FSA.
Following his own arrest in February 2010 for possession of distribution-sized quantities of cocaine and crack cocaine, an unnamed individual agreed to cooperate with the authorities and lead them to his supplier, Currie. The confidential source (" CS" ) proceeded to make a series of controlled, recorded purchases of crack cocaine from Currie. These purchases led to the issuance of a search warrant for Currie's residence; the ensuing search in turn produced evidence of a loaded revolver in Currie's home.
The first of the controlled buys took place on March 4, 2010. After a series of monitored phone calls to arrange the purchase of 1.5 ounces of crack cocaine from Currie, the CS met Currie at a residence in Anderson, Indiana. The CS was wired with equipment which produced a video and audio recording of the encounter. The CS followed Currie into the kitchen, where Currie presented him with a plastic bag containing roughly 91 grams of cocaine base. At Currie's request, the CS proceeded to re-cook the cocaine base; Currie then re-weighed the substance on a digital scale (it now weighed 96 grams) and repackaged it for the CS. The CS paid Currie the agreed-upon price and left the residence.
The CS subsequently engaged in two more controlled purchases of crack cocaine from Currie on March 12 and March 18, 2010. These transactions were not recorded on video, but audio recordings were made in both instances. Moreover, as with the March 4 purchase, both transactions were preceded by recorded telephone
calls in which the CS arranged to make the purchases from Currie.
On May 10, 2010, the government sought and obtained a search warrant for Currie's residence in Indianapolis. The affidavit submitted in support of the warrant request noted that the government's CS had made three controlled purchases of cocaine from Currie in March. The affidavit reported the CS's prior criminal history, noted that the CS had been cooperating with the government since February 2010, and indicated that much of the information supplied by the CS had been corroborated. The CS's three transactions with Currie were then described in detail, along with the fact that the purchases were both recorded by the CS and preceded by consensually monitored telephone calls between the CS and Currie. The agent who prepared the affidavit indicated that he had reviewed the video recording of the March 4 transaction. He described the actions depicted on that video and averred, based on his training and experience, that the substance that Currie handed to the CS was, in fact, cocaine base.
The search warrant was executed on May 11, 2010. Upon entering the residence, agents found Currie in his bedroom, attempting to hide a loaded revolver in the closet. Various indicia of ...