The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 10, 2008
THOMAS K. KAHN
No. 07-11396
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00039-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN HARMON RICHARDSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 10, 2008)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Appellant, a convicted felon, was indicted in three counts for violations of
18 U.S.C. § 922(g)(1): Count One, for possession of six firearms on February 19,
2005; Count Two, for possession of two firearms on February 22, 2005; Count
Three, for possession of ammunition on February 22, 2005. After the district court
denied his motion to suppress the evidence (including the firearms and ammunition
referred to in the indictment) found in his residence (a house trailer) pursuant to the
execution of search warrants on February 19 and 22, 2005, appellant pled guilty to
all three counts, and the court sentenced him to concurrent sentences of life
imprisonment. He now appeals his convictions and his sentences. He seeks the
vacation of his convictions on the ground that the district court abused its
discretion when it denied him an evidentiary hearing on his motion to suppress;
had he been accorded an evidentiary hearing, he submits, the court would have
suppressed the evidence found in his residence. He seeks the vacation of his
sentences on two grounds: the court erred (1) in treating him as an armed criminal
offender, and (2) in its findings on the issue of relevant conduct. We consider first
appellant’s challenge to his convictions.
The allegations of the three counts of the indictment were based on firearms
and ammunition the Thomasville, Alabama police obtained from appellant’s
residence pursuant to search warrants issued on the strength of affidavits executed
by three juveniles and a police department investigator. The juveniles were
victims of sexual abuse perpetrated by appellant, and witnessed appellant in
2
possession of the subject firearms. Appellant moved the district court to suppress
the firearms and ammunition, contending that the searches were illegal because the
information contained in the juveniles’ affidavits was false. These affidavits stated
that while the affiants were inside appellant’s residence, appellant approached
them dressed in a towel and exposing a loaded pistol, made them drink alcohol,
and had them perform oral sex, which he photographed.
Appellant requested an evidentiary hearing so he could explore the affiants’
reliability. In response, the Government asserted that no showing of the affiants’
reliability was needed and that the affidavits contained nothing of substance that
was false. The court denied appellant’s request for an evidentiary hearing, finding
that “the operative facts [were] not in dispute” and that the reliability of
information received from the victim of a crime need not be established. And,
since appellant had not demonstrated that the allegedly false information was either
deliberately or recklessly included in the juveniles’ affidavits, the court concluded
that an evidentiary hearing focusing on the juveniles’ reliability was not called for.
The issues before us in reviewing the district court’s denial of appellant’s
motion to suppress are whether the court’s findings of fact are clearly erroneous
and whether the court erred in applying the law to those facts. If the affidavit
presented to a judge in support of an application for a search warrant contained
3
false information that was included in the affidavit either deliberately or recklessly
and was essential to the establishment of the probable cause necessary for the
issuance of the warrant, the warrant must be voided. O’Ferrell v. United States,
253 F.3d 1257, 1267 (11th Cir. 2001). An affidavit makes a sufficient showing of
probable cause if it states “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) (quotation omitted). In moving to
suppress the evidence seized pursuant to a search warrant, the defendant must
make a “substantial preliminary showing” of the grounds for voiding the warrant in
order to be entitled to an evidentiary hearing. Franks v. Delaware, 438 U.S. 154,
155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).
To mandate an evidentiary hearing, the challenger’s attack must be
more than conclusory and must be supported by more than a mere
desire to cross-examine. There must be allegations of deliberate
falsehood or of reckless disregard for the truth, and those allegations
must be accompanied by an offer of proof. They should point out
specifically the portion of the warrant affidavit that is claimed to be
false; and they should be accompanied by a statement of supporting
reasons. Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily
explained. Allegations of negligence or innocent mistake are
insufficient.
Id. at 171, 98 S.Ct. at 1684. Furthermore, an evidentiary hearing is not required
“if, when material that is the subject of the alleged falsity or reckless disregard is
4
set to one side, there remains sufficient content in the warrant affidavit to support a
finding of probable cause.” See United States v. Novaton, 271 F.3d 968, 986 (11th
Cir. 2001).
In this case, nothing in the affidavits supporting the applications for the
search warrants indicated the need for an evidentiary hearing to explore the
affiants’ reliability. Appellant was not entitled to an evidentiary hearing because
he altogether failed to make any showing, much less a substantial showing, that the
affidavits’ assertions that affiants saw him with a firearm were false. Their
assertions were plainly sufficient to support a finding of probable cause. The
district court therefore committed no error in denying appellant’s motion to
suppress. We turn now to appellant’s challenges to his sentences.
Appellant contends that the court should not have considered him an armed
career criminal because the Government failed to demonstrate that his prior
burglaries were generic burglaries. Section § 924(e) provides that anyone who
violates 18 U.S.C. § 922(g) and has three previous convictions for, among other
things, violent felonies shall be imprisoned no less than fifteen years. A burglary
constitutes a violent felony if it is a “generic burglary,” that is, it has “the basic
elements of unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575,
5
599, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). A district court may examine
the charging document, plea agreement, plea colloquy, or “some comparable
judicial record of this information” to determine whether a prior burglary
conviction is generic or non-generic based on a guilty plea. Shepard v. United
States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005). The
district court may only look beyond the fact of conviction and the statutory
definition of the offenses in the few cases where it is impossible to determine from
the judgment or statute of conviction whether the conviction was for a violent
felony. United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007), pet. for
cert. filed, (U.S. Nov. 16, 2007) (No. 07-668).
In Alabama, “[a] person commits the crime of burglary in the third degree if
he knowingly enters or remains unlawfully in a building with intent to commit a
crime therein.” Ala. Code § 13A-7-7(a). Although the Government did not
present any evidence showing that appellant was an armed career criminal based
on his third-degree burglary convictions, it did not need to, because the court had
such evidence before it. In particular, it could look to the statutory definition of
appellant’s prior burglary convictions. See Taylor, 489 F.3d at 1113. The
statutory definition of burglary in the third degree in Alabama is almost exactly the
same as the federal definition of a generic burglary and, thus, qualifies as a violent
6
felony under § 924(e). See Ala. Code § 13A-7-7; Taylor, 495 U.S. at 598, 110
S.Ct. at 2158. Therefore, the Government did not need to present additional
evidence to show by a preponderance of the evidence that appellant’s prior
Alabama convictions for burglary in the third degree qualified as violent felonies
under § 924(e).
Appellant contends that he only pled guilty to the charges contained in the
indictment and that the district court erred by taking testimony and making
findings concerning relevant conduct that increased his sentence . We have
established a two-step process for district courts to use in fashioning sentences.
First, the court must consult and correctly calculate the sentence range prescribed
by the Sentencing Guidelines. Second, the court must consider the factors
enumerated in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786
(11th Cir. 2005).
As long as the court treats the Sentencing Guidelines as advisory, it does not
violate the defendant’s constitutional rights when it makes factual findings by a
preponderance of the evidence that go beyond the letter of the charges in the
indictment and the jury’s findings. United States v. Chau, 426 F.3d 1318, 1324
(11th Cir. 2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.
2005) (holding that the district court was permitted to find conduct that had been
7
acquitted by the jury when determining the defendant’s sentence). Nor does the
court err in relying on the defendant’s prior convictions to enhance the sentence.
United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). A defendant with
three convictions for violent felonies who violates 18 U.S.C. § 922(g) faces a term
of imprisonment for fifteen years to life. 18 U.S.C. § 924(e)(1); United States v.
Brame, 997 F.2d 1426, 1428 (11th Cir. 1993).
In this case, the district court treated the Sentencing Guidelines as advisory.
Appellant’s sentences of life imprisonment were within the prescribed statutory
range because the jury found that appellant had violated 18 U.S.C. § 922(g) and the
court was authorized by 18 U.S.C. § 924(e) to use his prior convictions to enhance
his sentence. See Shelton, 400 F.3d at 1329. In sum, appellant has provided us
with no basis for overturning his sentences.
AFFIRMED.
8