United States v. Leon Morgan Roland , 133 F. App'x 660 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 31, 2005
No. 04-10941
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 03-00049-CR-4-SPM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEON MORGAN ROLAND,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 31, 2005)
Before BLACK, HULL and WILSON, Circuit Judges.
PER CURIAM:
Leon Morgan Roland appeals his conviction and sentence for possession
with intent to distribute various controlled substances, in violation of 21 U.S.C.
§ 841(a)(1), and possession of ammunition by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). Roland asserts the district court erred in (1) denying his
motion to suppress evidence, and (2) setting his base offense level and sentencing
him under a mandatory Guidelines system in light of Blakely v. Washington, 124
S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). The
district court did not err, and we affirm.
I. DISCUSSION
A. Motion to Suppress
Roland contends the district court erred in denying his motion to suppress
because the probable cause affidavit relied on the claims of three confidential
informants who were corroborated only by each other. Roland asserts pyramiding
information by confidential sources is inadequate where it provides the sole basis
of probable cause.
We review the district court’s determination of whether an affidavit
established probable cause de novo, but “‘take care both to review findings of
historical fact only for clear error and to give due weight to inferences drawn from
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those facts by resident judges and local law enforcement officers.’” United States
v. Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000) (citation omitted).
The Fourth Amendment to the U.S. Constitution provides, “no Warrants
shall issue, but upon probable cause . . . .” U.S. Const. Amend. IV. “[P]robable
cause is a fluid concept—turning on the assessment of probabilities in particular
factual contexts—not readily, or even usefully, reduced to a neat set of legal
rules.” Illinois v. Gates, 103 S. Ct. 2317, 2329 (1983). To establish probable
cause, the 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) (citation omitted).
Because the warrant application typically focuses on whether the suspect
committed a crime and whether evidence of the crime will be found at his home or
business, the affidavit must contain “‘sufficient information to conclude that a fair
probability existed that seizable evidence would be found in the place sought to be
searched.’” Id. (citation omitted). “If an informant is mentioned in the affidavit,
the affidavit also must demonstrate the informant’s ‘veracity’ and ‘basis of
knowledge.’” Id. The Supreme Court rejected a two-pronged analysis that
separately analyzed an informant’s veracity and basis of knowledge, in favor of a
totality-of-the-circumstances analysis, where “a deficiency in one may be
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compensated for, in determining the overall reliability of a tip, by a strong
showing as to the other, or by some other indicia of reliability.” Gates, 103 S. Ct.
at 2329.
Independent police corroboration of a confidential informant’s statement is
not a requirement in every case. United States v. Brundidge, 170 F.3d 1350, 1353
(11th Cir. 1999). “An ‘explicit and detailed description of alleged wrongdoing,
along with a statement that the event was observed firsthand, entitles [the
confidential informant’s] tip to greater weight than might otherwise be the case.’”
Id. (citation omitted). Thus, we have upheld the validity of the probable cause
affidavit where the confidential informant had provided information that had
proven to be truthful and reliable in the past, id.; where the level of detail showed
the informant was unlikely to lie because the lies would be discovered in short
order, id. at 1353–54; where police were able to independently confirm some of
the facts the informant provided, Martin, 297 F.3d at 1315; United States v.
Talley, 108 F.3d 277, 281(11th Cir. 1997); and where the confidential informant
made a statement against his or her penal interest to the officer, United States v.
Farese, 612 F.2d 1376, 1378 (5th Cir. 1980).1
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of
business on September 30, 1981.
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The Fourth Amendment’s warrant requirement contains a good faith
exception, and evidence should not be suppressed where it was obtained by
“objectively reasonable reliance on a subsequently invalidated search warrant.”
United States v. Leon, 104 S. Ct. 3405, 3419–20 (1984). “[A] warrant issued by a
magistrate normally suffices to establish that a law enforcement officer has acted
in good faith in conducting the search.” Id. (internal quotations and citation
omitted).
The warrant in this case was supported by probable cause. The affidavit
was supported by the statements of three separate, unrelated confidential
informants, two of whom made statements based upon their personal knowledge,
two of whom made statements against penal interest, and all of whom each
approached a different law enforcement official with his claim. Furthermore, even
if probable cause did not exist, a good-faith exception to the warrant requirement
existed. Officers relied upon a magistrate’s judicial determination that probable
cause supported the arrest. Thus, the district court did not err in denying Roland’s
motion to suppress.
B. Blakely/Booker
Roland asserts the district court plainly erred in setting his base offense
level and sentencing him under a mandatory Guidelines system. Roland did not
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raise a constitutional objection to the district court’s application of the Sentencing
Guidelines in the district court. We “may not correct an error the defendant failed
to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that
affects substantial rights. If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)
petition for cert. filed, No. 04-1148 (Feb. 23, 2005) (quotations and citations
omitted).
We have clarified there are two types of Booker error: (1) Sixth
Amendment, or constitutional, error based upon sentencing enhancements in a
mandatory Guidelines system when the enhancements are neither admitted by the
defendant nor submitted to a jury and proven beyond a reasonable doubt; and
(2) statutory error based upon sentencing under a mandatory Guidelines system.
United States v. Shelton, 400 F.3d 1325, 1329–30 (11th Cir. 2005).
1. Sixth Amendment Error
We have held there is no Sixth Amendment error under Booker where the
defendant has admitted to facts later used by the district court to enhance his
sentence, whether at the plea hearing, in the presentence investigation report, or at
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sentencing. Id. Here, the Government filed a statement of facts setting forth the
drug quantities later utilized by the probation office to set Roland’s base offense
level. No other enhancements were applied. At the plea hearing, Roland agreed
the Government could present evidence to show the facts contained in the
statement of facts were true. Because Roland admitted the drug quantities the
probation office used in setting his base offense level, and no other enhancements
were imposed in a mandatory Guidelines system, no Sixth Amendment violation
based upon judicial factfinding occurred. See id.
2. Statutory Error
We must also consider whether the district court erred in applying the
Guidelines as mandatory. See United States v. Dacus, 11th Cir., 2005, __ F.3d __
(No. 04-15319, May 3, 2005). The first prong and second prongs of the plain
error test are satisfied. The district court erred when it sentenced Roland under a
mandatory Guidelines system and that error is plain. See id. However, under the
third prong, where the record provides no indication the district court would have
imposed a different sentence under an advisory Guidelines system as opposed to a
mandatory one, the defendant cannot meet his burden to show the error affected
his substantial rights. Shelton, 400 F.3d at 1299–1300.
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Here, the record provides no indication the district court would have
imposed a different sentence if it were not constrained by the mandatory nature of
the Guidelines. Accordingly, Roland cannot meet his burden to show any error
based upon the district court’s treatment of the Guidelines as mandatory affected
his substantial rights.
II. CONCLUSION
The district court did not err in denying Roland’s motion to suppress
evidence. Additionally, Roland cannot meet his burden to show any Booker error
affected his substantial rights..
AFFIRMED.
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