United States v. Giddens

138 F. App'x 935

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 7, 2005
• Docket: No. 04-50439; D.C. No. CR-04-00052-SVW
• Status: Published

Opinion

MEMORANDUM

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1. The district court did not err in failing to exclude the firearms seized from Giddens’s home. Even if there was insufficient probable cause to support the search, the government agents conducting the search reasonably relied on a facially valid warrant issued by a neutral and detached magistrate. Under these circumstances, even if the search violated the Fourth Amendment due to insufficient probable cause, excluding the evidence would not have a deterrent effect and is not required by the Fourth Amendment. See United, States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Thus, the district court did not err in denying Giddens’s motion to exclude the firearms evidence.

2. Because this is the unusual case in which it is clear from the record that the district court would have sentenced the defendant to a lesser sentence had the court known the Sentencing Guidelines were advisory, we vacate Giddens’s sentence and remand for resentencing. See United States v. Ameline, 409 F.3d 1073, 1079 (9th Cir.2005) (en banc).

3. The mandate shall issue forthwith.

AFFIRMED IN PART; VACATED IN PART; REMANDED IN PART.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.