United States of America v. Sheik Naieem Trice

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4789
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHEIK NAIEEM TRICE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:13-cr-00034-GEC-1)
Submitted: June 29, 2015 Decided: August 4, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wayne D. Inge, LAW OFFICE OF WAYNE D. INGE, Roanoke, Virginia,
for Appellant. Anthony P. Giorno, Acting United States Attorney,
Ashley B. Neese, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sheik Naieem Trice was convicted of conspiracy to possess
with intent to distribute more than 100 grams of heroin, 21
U.S.C. § 846 (2012), and possession with intent to distribute
heroin, 21 U.S.C. § 841(a)(1). He was sentenced to 151 months
on each count, to run concurrently. Trice now appeals, raising
three issues. We affirm.
I
Trice contends that the district court erred when it denied
his motion to suppress evidence seized from a residence pursuant
to a search warrant. “In reviewing the denial of a motion to
suppress, we review the district court’s factual findings for
clear error and its legal conclusions de novo.” United States
v. Green, 740 F.3d 275, 277 (4th Cir.), cert. denied, 135 S. Ct.
207 (2014). If the district court denied the motion to
suppress, we construe the evidence in the light most favorable
to the Government. United States v. Black, 707 F.3d 531, 534
(4th Cir. 2013).
To comport with the Fourth Amendment, a magistrate issuing
a search warrant must find probable cause based on “a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit [supporting the warrant,] . . . there is
a fair probability that contraband or evidence of a crime will
be found in a particular place.” Illinois v. Gates, 462 U.S.

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213, 238 (1983). “The probable-cause standard is incapable of
precise definition or quantification into percentages because it
deals with probabilities and depends on the totality of the
circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003).
“For that reason, in reviewing the sufficiency of a supporting
affidavit, we avoid applying hypertechnical scrutiny.” Owens v.
Lott, 372 F.3d 267, 274 (4th Cir. 2004) (internal quotation
marks omitted). We accord great deference to the magistrate’s
probable cause determination. United States v. Clyburn, 24 F.3d
613, 617 (4th Cir. 1994).
In the affidavit submitted in support of the search
warrant, Detective Kelly Jennings stated that he received
information from a confidential informant (CI) that Trice was
“in possession of heroin, available for sale, and was staying at
the address to be searched, with Morgan Nicole Sander . . . [,]
the main tenant of the residence.” Jennings stated that the CI
gave him Sander’s name and address and identified her vehicle
and its license plate number. Jennings corroborated this
information by researching DMV records, showing a photograph of
Sander to the CI, and observing Sander at the residence in the
vehicle described by the CI. Jennings also observed a male
matching the CI’s description of Trice in Sander’s vehicle.
The CI informed Jennings that Trice would be conducting a
heroin transaction at a certain location at a specific time.

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Trice showed up as forecast and entered a vehicle that arrived
at the location. When officers confronted Trice, no narcotics
were found. However, Trice was arrested for attempted robbery.
Jennings then met with the CI, who had recorded a phone
conversation with Sander regarding Trice’s arrest. Jennings
stated in the affidavit that he listened to the phone call, in
which Sander stated that she was afraid to return to her
residence because “all that shit is there.” Jennings said that
he believed this was a reference to heroin that Trice had stored
at Sander’s residence.
We conclude that the affidavit established probable cause
to believe that heroin would be located at the Sander residence.
Jennings corroborated the CI’s information about Sander--
specifically, where she lived and what car she drove.
Further, a practical and common-sense interpretation of the
recorded conversation between the CI and Sander reasonably would
lead to the conclusion that heroin would be found at the Sander
residence, where Trice, a heroin dealer, was staying.
II
Prior to trial, the Government filed a notice stating its
intention to introduce as Fed. R. Crim. P. 404(b) evidence two
of Trice’s prior drug convictions: a 2003 conviction for
possession with intent to distribute marijuana; and a 2012
conviction for conspiracy to distribute heroin. Trice filed a

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motion in limine to exclude the evidence. After argument, the
court excluded the evidence of the 2003 conviction because it
was remote in time and involved marijuana--not heroin. The
court denied the motion as to the heroin conviction.
Trice claims that the district court’s ruling was erroneous
insofar as it related to the 2012 heroin conviction. “A
district court’s determination of the admissibility of evidence
under [Rule] 404(b) is reviewed for . . . abuse of discretion.”
United States v. Penniegraft, 641 F.3d 566, 574 (4th Cir. 2011).
Rule 404(b) prohibits the admission of evidence of prior
bad acts solely to prove action in conformity therewith. Such
evidence may be admissible, however, for other purposes, such as
“‘proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.’”
United States v. Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004)
(quoting Rule 404(b)). For such evidence to be admissible under
the Rule, it must be “(1) relevant to an issue other than the
general character of the defendant; (2) necessary to prove an
element of the charged offense; and (3) reliable.” Id.
“Evidence sought to be admitted under Rule 404(b) must also
satisfy” Fed. R. Evid. 403. United States v. Siegel, 536 F.3d
306, 319 (4th Cir. 2008). “Rule 403 only requires suppression
of evidence that results in unfair prejudice--prejudice that
damages an opponent for reasons other that its probative

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value, . . . and only when that unfair prejudice substantially
outweighs the probative value of the evidence.” United
States v. Mohr, 318 F.3d 613, 619-20 (4th Cir. 2003) (internal
quotation marks and alteration omitted).
We hold that the district court properly permitted
introduction of the 2012 conviction. The evidence was relevant
to an issue other than character because it tended to show that
Trice, as a convicted drug dealer, had knowledge of the drug
trade. The evidence was necessary to show intent and lack of
mistake. Further, the evidence was reliable, as it consisted of
a copy of a certified judgment from a New Jersey state court.
Finally, the evidence, presented as a stipulation at the
beginning of a trial where there was abundant evidence of
Trice’s drug dealing, was not overly prejudicial.
III
Trice contends that he was improperly found at sentencing
to be a career offender. Having reviewed the record, including
the presentence investigation report and the sentencing
transcript, we are convinced that Trice had the requisite prior
felony convictions and otherwise qualified as a career offender.
See U.S.S.G. § 4B1.1(a) (2013). The district court properly
relied on certified judgments from New Jersey state courts
reflecting Trice’s prior felony drug convictions. We discern no
error in the court’s conclusion that Trice was a career

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offender. See United States v. McDowell, 745 F.3d 115, 120 (4th
Cir. 2014), cert. denied, 135 S. Ct. 942 (2015) (stating
standard of review).
IV
We affirm the district court’s judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED

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