United States v. Shawn A. Bailey

433 F. App'x 807
Court of Appeals for the Eleventh Circuit·Decided July 8, 2011·No. 10-14892·Unpublished

Opinion

PER CURIAM:

Shawn Bailey appeals his convictions and 240-month total sentence for distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); possession with intent to distribute cocaine, in violation of § 841(a)(1); and possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Bailey raises three issues on appeal. First, he argues that the district court erred when it denied his motion to suppress the evidence seized from his apartment for lack of probable cause because the search warrant affidavit contained misstatements that were made intentionally or with reckless disregard, and the affidavit’s remaining content did not support a finding of probable cause. Second, Bailey argues that the district court erred in determining that his prior conviction for escape was a crime of violence, and he was therefore wrongly sentenced as a career offender. Finally, Bailey argues that his 240-month sentence was unreasonable because the district court did not give sufficient justification for the sentence, and the sentence was greater than necessary to comply with the goals of sentencing.

I.

“Review of a district court’s denial of a motion to suppress is a mixed question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir.2007). We review the district court’s factual findings for clear error and its interpretation and application of the law de novo. Id. We construe all facts in the light most favorable to the prevailing party in the district court. Id.

For a search warrant to be valid, it must be supported by probable cause. U.S. Const., amend. IV. “Probable cause to support a search warrant exists when the totality of the circumstances allow a conclusion that there is a fair probability of finding contraband or evidence at a particular location.” United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.1999). Accordingly, the search warrant affidavit must “state facts sufficient to justify a conclusion that evidence or contraband will probably be found at the premises to be searched.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir.2002) (internal quotations omitted). More specifically, the affidavit should establish “a connection between the defendant and the residence to be searched and a link between the residence and any criminal activity.” Id.

*809 Search warrant affidavits are presumptively valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). A search warrant must be voided and the fruits of the search excluded, however, if the search warrant affidavit contained a false statement made knowingly and intentionally or with reckless disregard for the truth, and the affidavit’s remaining content does not establish probable cause. Id. at 155-56, 98 S.Ct. at 2676. Nevertheless, a warrant is valid “when material that is the subject of the alleged falsity or reckless disregard is set to one side, [and] there remains sufficient content in the warrant affidavit to support a finding of probable cause.” Id. at 171-72, 98 S.Ct. at 2684. Thus, a defendant must show (1) “that the alleged misrepresentations or omissions were knowingly or recklessly made” and (2) “that the result of excluding the alleged misrepresentations and including the alleged omissions would have been a lack of probable cause for issuance of the warrants.” United States v. Novaton, 271 F.3d 968, 986-87 (11th Cir.2001).

The district court did not err in denying Bailey’s motion to suppress. Even if the contested statements in the search warrant affidavit are incorrect, Bailey has failed to provide proof that those misstatements were made intentionally or with reckless disregard. Absent this proof, Bailey has not shown that the search warrant lacked probable cause. Therefore, the district court was correct in denying Bailey’s motion.

II.

We review de novo “whether a defendant’s prior conviction qualifies as a ‘crime of violence’ under the Sentencing Guidelines.” United States v. Harris, 586 F.3d 1283, 1284 (11th Cir.2009). Cases addressing violent felonies under the Armed Career Criminal Act (ACCA) are instructive in determining crimes of violence under U.S.S.G. § 4B1.2, because the definitions for both terms are virtually identical. Id. at 1285.

To determine if a prior conviction is a qualifying offense for sentencing enhancement purposes, we generally apply a categorical approach, looking no further than the statute and judgment of conviction. United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir.2010). However, when the law under which a defendant has been convicted contains different statutory phrases, then the judgment is ambiguous, and we apply a modified categorical approach. Id. “Under this approach, a court may determine which statutory phrase was the basis for the conviction by consulting a narrow universe of ‘Shepard [v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ] documents’ that includes any charging documents, the written plea agreement, the transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 1337.

Subsequent to the submission of the parties’ briefs, we issued a decision directly dealing with Bailey’s career offender issue. In United States v. Proch, 637 F.3d 1262 (11th Cir.2011), we dealt with whether an escape conviction under Fla. Stat. § 944.40, the same statute that Bailey was convicted under, qualified as a predicate offense for armed career criminal classification. We first looked at the charging document, which stated that the defendant “escaped while in lawful custody of the county jail or while being transported to or from there.” Proch, 637 F.3d at 1266. We concluded that this information indicated that the defendant had been apprehended and was either at the jail or being transported to it when he attempted to escape. Id.

*810 We then looked to whether the escape conviction constituted a violent felony in order for it to be a qualifying offense. Id.

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