United States of America v. Dawantaye Boswell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4893
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAWANTAYE BOSWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cr-00032-FPS-JES-1)
Submitted: June 10, 2013 Decided: June 20, 2013
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Douglas Sughrue, Pittsburgh, Pennsylvania, for Appellant.
William J. Ihlenfeld, II, United States Attorney, John C. Parr,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dawantaye Boswell appeals both the denial of his
motion to suppress and his convictions and 235-month sentence
for possessing with the intent to distribute within one thousand
feet of a public housing facility more than 280 grams of cocaine
base, in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(A), and
860 (West 1999 & Supp. 2013), and for establishing his apartment
for the purpose of manufacturing or distributing controlled
substances, in violation of 21 U.S.C. § 856(a)(2) (2006).
Boswell asserts three errors on appeal, claiming (1) that the
district court erred in denying his motion to suppress; (2) that
the district court abused its discretion by admitting into
evidence an incoming text message found on one of the cell
phones located in Boswell’s apartment; and (3) that the district
court failed at sentencing to make the findings required to
support a two-point obstruction of justice enhancement under
U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2011).
Concluding that the district court committed no reversible
error, we affirm.
Boswell first claims that the district court erred in
denying his motion to suppress the fruits of the first warrant
procured by law enforcement officers to search his apartment.
The district court’s legal conclusions underlying a suppression
determination are reviewed de novo, while its factual findings

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are reviewed for clear error. United States v. Guijon-Ortiz,
660 F.3d 757, 762 (4th Cir. 2011). Because the district court
denied the motion to suppress, the evidence is construed on
appeal in the light most favorable to the government. United
States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
For purposes of our analysis, we will assume without
deciding that the search warrant at issue was unsupported by
probable cause. After reviewing the record, however, we
conclude that the evidence seized from Boswell’s apartment was
not subject to exclusion, given the applicability of the good
faith exception to the warrant requirement. This exception
stems from the fact that the exclusionary rule is a
“prudential,” rather than a constitutional, rule intended solely
to deter future Fourth Amendment violations. Davis v. United
States, 131 S. Ct. 2419, 2426 (2011). When an officer acts
“‘with objective good faith’ within the scope of a search
warrant issued by a magistrate,” suppression of the evidence
obtained by the officer does not serve the exclusionary rule’s
deterrence objective, since the officer has, in fact, attempted
to comport with the law. United States v. Perez, 393 F.3d 457,
461 (4th Cir. 2004) (quoting United States v. Leon, 468 U.S.
897, 920 (1984)).
As a result, “a court should not suppress the fruits
of a search conducted under the authority of a warrant, even a

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‘subsequently invalidated’ warrant, unless ‘a reasonably well
trained officer would have known that the search was illegal
despite the magistrate’s authorization.’” United States v.
Bynum, 293 F.3d 192, 195 (4th Cir. 2002) (quoting Leon, 468 U.S.
at 922 n.23). In other words, “evidence obtained pursuant to a
search warrant issued by a neutral magistrate does not need to
be excluded if the officer’s reliance on the warrant was
‘objectively reasonable.’” Perez, 393 F.3d at 461 (quoting
Leon, 468 U.S. at 922).
Although Boswell claims that the affidavit supporting
the warrant was so sparse and facially deficient that the
executing officers could not reasonably have assumed that it was
valid, we disagree. See, e.g., United States v. Grossman, 400
F.3d 212, 217 (4th Cir. 2005) (explaining the requirement that
an affidavit demonstrate a fair probability that evidence of a
crime be located in the place to be searched). Our review of
the affidavit leads us to conclude that the affidavit was not so
lacking in indicia of probable cause that the law enforcement
officers’ reliance on the warrant was objectively unreasonable.
Therefore, we hold that the district court did not err in
denying Boswell’s motion to suppress. Leon, 468 U.S. at 923.
Boswell next asserts that the district court abused
its discretion in declining to exclude from evidence an incoming
text message that was found on one of the cell phones in

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Boswell’s apartment. The text message stated, “NVM the weed. I
still want the other though.” The officers interpreted this
message as a request to purchase drugs. Although Boswell
contends that the message was inadmissible hearsay, we disagree.
Hearsay, under the Federal Rules of Evidence, is an
out-of-court statement “offer[ed] in evidence to prove the truth
of the matter asserted in the statement.” Fed. R. Evid.
801(c)(2); see United States v. Washington, 498 F.3d 225, 231
(4th Cir. 2007). The truth of the assertion in the text message
by the declarant regarding whether he actually changed his mind
regarding “the weed,” yet desired to obtain “the other” type of
drug, is irrelevant to Boswell’s case. See United States v.
Arteaga, 117 F.3d 388, 397 (9th Cir. 1997) (articulating several
categories of non-hearsay uses of statements). Rather, the text
message was relevant to show that it “was made” to Boswell.
United States v. Ayala, 601 F.3d 256, 272 (4th Cir. 2010)
(quoting Anderson v. United States, 417 U.S. 211, 220 n.8
(1974)).
In the same way that the drug distribution
paraphernalia littering Boswell’s residence was circumstantial
evidence that Boswell was in the business of drug distribution,
the fact that he received an inquiry from the declarant who
thought, rightly or wrongly, that Boswell could provide him with
drugs was also circumstantial evidence of Boswell’s enterprise.

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See United States v. Safari, 849 F.2d 891, 894 (4th Cir. 1988)
(holding that letters containing plans to smuggle drugs were
admitted not for their truth but simply to show defendant’s
knowledge that a subsequent package would contain drugs); see
also United States v. Lis, 120 F.3d 28, 30-31 (4th Cir. 1997)
(lists of numbers were not hearsay because their probative value
did not rely on their being accurate or reliable but was based
merely on the fact that the lists had been compiled at all).
Because the text message was not offered to establish the truth
of the matters asserted within it, the district court did not
abuse its discretion by admitting the text message as evidence
See United States v. Hornsby, 666 F.3d 296, 307 (4th Cir. 2012)
(stating standard).
Finally, Boswell claims that the district court did
not make sufficient factual findings to support the application
of the USSG § 3C1.1 obstruction of justice enhancement. In
assessing whether a sentencing court correctly applied the
Guidelines, the district court’s factual findings are reviewed
for clear error and its legal conclusions are reviewed de novo.
United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).
The district court applied the obstruction of justice
enhancement based on Boswell’s trial testimony, in which he
claimed that none of the drug-related items found in his
apartment belonged to him and that another individual had used

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his apartment without his permission to “cook” more than 400
grams of cocaine base. The district court determined that
Boswell willfully gave false testimony of a material matter.
Although Boswell contends that the district court failed to make
findings on the three elements of perjury that were sufficient
to comport with our mandate in United States v. Perez, 661 F.3d
189, 192 (4th Cir. 2011), we disagree and conclude that there
was a sufficient basis to support district court’s decision to
apply the enhancement to Boswell.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this Court and argument would not aid the decisional
process.
AFFIRMED

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