United States v. Tillage , 404 F. App'x 722 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4950
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PAUL TILLAGE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00458-RLW-1)
Submitted: November 9, 2010 Decided: December 6, 2010
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Paul G. Gill,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Kevin C. Nunnally,
Special Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Tillage was indicted and charged with possession
with intent to distribute cocaine base, cocaine, marijuana, and
methadone, in violation of 21 U.S.C. § 841 (2006) (Counts One
through Four, respectively), possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (2006) (Count Five), and maintaining a place for
the purpose of manufacturing, distributing, and using controlled
substances, in violation of 21 U.S.C. § 856 (2006) (Count Six).
The Government charged Tillage after the discovery of
contraband in a motel room occupied by Tillage and leased in his
name. Officer Eric Sandlin, one of two officers conducting
surveillance at the motel, noted the smell of marijuana just
before Tillage emerged from the motel room. On noticing the
officers, Tillage first tried to barricade himself in the motel
room, but eventually fled the scene. The officers gave chase
and apprehended Tillage a few blocks away. Sandlin secured a
search warrant for the motel room, citing the marijuana odor in
the supporting affidavit.
Relying on Franks v. Delaware, 438 U.S. 154 (1978),
Tillage sought to suppress the physical evidence against him,
arguing that the affidavit in support of the search warrant
contained an intentional or reckless omission of material
information, and a more accurate affidavit would not have
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supported a finding of probable cause. The district court
conducted an evidentiary hearing to consider Tillage’s motions,
but opted not to hold a full Franks hearing and denied Tillage’s
motion to suppress. The case went to trial, and a jury found
Tillage guilty of Counts One through Four and Count Six, and not
guilty on Count Five.
Based on his offense level of thirty-four and a
criminal history category of VI, Tillage’s Guidelines range was
262 to 327 months of imprisonment. U.S. Sentencing Guidelines
Manual Ch. 5, Pt. A (sentencing table) (2008). Counsel for
Tillage argued in support of a downward variant sentence of 120
months. The district court sentenced Tillage to 262 months on
Count One, 240 months on Counts Two, Four, and Six, and sixty
months on Count Three, to be served concurrently, for an
aggregate sentence of 262 months. This appeal followed.
On appeal, Tillage asserts two claims of error.
First, Tillage argues that the district court erred when it
concluded that he failed to make a substantial showing in
support of his motion for a full hearing to determine whether
Sandlin purposefully or recklessly omitted material information
in a search warrant affidavit such that the warrant was invalid.
Second, Tillage argues that his sentence is procedurally
unreasonable because the district court failed to adequately
articulate a basis for the sentence imposed.
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I. Denial of Evidentiary Hearing
In the district court, Tillage moved for an
evidentiary hearing, pursuant to Franks v. Delaware. A
defendant bears a heavy burden to establish the need for a
Franks hearing. United States v. Jeffus, 22 F.3d 554, 558 (4th
Cir. 1994). First, a defendant must make a “substantial
preliminary showing” that the affiant intentionally included
false statements necessary to a finding of probable cause.
Franks, 438 U.S. at 155-56. If the defendant claims the affiant
made the affidavit deceptive by omitting facts, the defendant’s
“burden increases yet more.” United States v. Tate, 524 F.3d
449, 454 (4th Cir. 2008). In such a case, the defendant must
show “that the facts were omitted ‘with the intent to make, or
in reckless disregard of whether they made, the affidavit
misleading.’” Id. (quoting United States v. Colkley, 899 F.2d
297, 300 (4th Cir. 1990)). The “showing ‘must be more than
conclusory’ and must be accompanied by a detailed offer of
proof.” Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at
171). A claim that the affiant was negligent or made an
innocent mistake is inadequate to obtain a hearing. Franks, 438
U.S. at 171. In addition, consideration of the omitted
information must “be such that its inclusion in the affidavit
would defeat probable cause.” Colkley, 899 F.2d at 301. This
court reviews for clear error the factual determinations
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underlying the denial of such a motion, and reviews de novo the
legal conclusions. United States v. Gary, 528 F.3d 324, 327
(4th Cir. 2008).
The record before this court does not demonstrate that
the district court erred in denying Tillage’s motion for a
Franks hearing. First, Tillage failed to make a substantial
preliminary showing that Sandlin omitted material facts
knowingly or recklessly, to mislead the magistrate. Further, on
consideration of the omitted material, the fact that another
officer on the scene did not smell marijuana does not defeat the
probable cause established by Sandlin’s observations. Colkley,
899 F.2d at 300-01. Accordingly, as the district court did not
err in denying the request for a Franks hearing or the motion to
suppress, we affirm the district court’s denial of relief.
II. Claim of Sentencing Error
Tillage asserts that the district court committed
procedural error by failing to adequately explain the sentence
imposed. This court reviews a sentence for reasonableness,
using an abuse of discretion standard of review. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires us to ensure that the district court committed no
significant procedural error. United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008). Procedural errors include “failing to
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calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, [this court] review[s] for abuse of discretion” and will
reverse if such an abuse of discretion is found unless the court
can conclude “that the error was harmless.” United States v.
Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For instance, “the
district court must state in open court the particular reasons
supporting its chosen sentence [and] set forth enough to satisfy
the appellate court that [it] has considered the parties’
arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.” United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (internal citation and quotation
marks omitted). If “an aggrieved party sufficiently alerts the
district court of its responsibility to render an individualized
explanation” by drawing arguments from § 3553 “for a sentence
different than the one ultimately imposed,” the party
sufficiently “preserves its claim.” Lynn, 592 F.3d at 578.
When counsel requests a sentence at the bottom of the Guidelines
range or below, the error is preserved. Id. at 581.
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Tillage’s arguments in the district court for a
sentence below the recommended Guidelines range preserved his
claim of procedural sentencing error on appeal. Id. These
arguments “sufficiently alert[ed] the district court of its
responsibility to render an individualized explanation
addressing those arguments.” Id. at 578. Therefore, we review
any procedural sentencing error for abuse of discretion and
reverse unless the error was harmless. Id. at 579.
Under that standard, we conclude that any procedural
sentencing error in this case was harmless. See Rita v. United
States, 551 U.S. 338, 359 (2007) (“Where . . . the record makes
clear that the sentencing judge considered the evidence and
arguments, we do not believe the law requires the judge to write
more extensively.”); United States v. Boulware, 604 F.3d 832,
838 (4th Cir. 2010) (procedural error is harmless if it did not
have a substantial, injurious effect on the result and this
court can fairly say that the sentencing court’s explicit
consideration of defendant’s arguments would not have altered
the sentence imposed). The district court heard from Tillage,
his counsel, and the Government regarding an appropriate
sentence, commented on Tillage’s extensive criminal history,
family support, and rehabilitative efforts, and noted it had
read the authority provided by Tillage’s counsel in support of
his argument for a downward variance. The court then imposed a
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sentence at the bottom of the Guidelines range. We are
satisfied that the district court considered the parties’
arguments and had a reasoned basis for the sentence imposed,
Boulware, 604 F.3d at 837, and that this sentence would not be
impacted by a more thorough explanation.
Accordingly, we affirm Tillage’s conviction and
sentence. 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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