US v. Paul Tillage

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cr-00458-RLW-1 Copies to all parties and the district court/agency. [998478701] [09-4950]

US v. Paul Tillage

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4950 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. PAUL TILLAGE, Defendant ­ Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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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 Sandlin secured a

and apprehended Tillage a few blocks away.

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 contained an the affidavit in or support reckless of the search of warrant material not have

intentional and a more

omission

information,

accurate 2

affidavit

would

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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 Counsel for

Manual Ch. 5, Pt. A (sentencing table) (2008).

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. On First, appeal, argues he Tillage that

This appeal followed. two claims of error. when it in

asserts

Tillage that

the to

district a

court

erred

concluded

failed

make

substantial

showing

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 the that his sentence court is procedurally to adequately

unreasonable

because

district

failed

articulate a basis for the sentence imposed. 3

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I. In evidentiary defendant the

Denial of Evidentiary Hearing district court, to to Tillage Franks v. moved for an A a

hearing, a

pursuant burden

Delaware. the need for

bears

heavy

establish

Franks hearing. Cir. 1994).

United States v. Jeffus, 22 F.3d 554, 558 (4th First, a that defendant the to must make a "substantial included cause.

preliminary false

showing"

affiant a

intentionally of

statements

necessary

finding

probable

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." 449, 454 (4th Cir. 2008). United States v. Tate, 524 F.3d

In such a case, the defendant must

show "that the facts were omitted `with the intent to make, or in reckless disregard Id. of whether they made, the affidavit

misleading.'"

(quoting United States v. Colkley, 899 F.2d The "showing `must be more than by a detailed offer of

297, 300 (4th Cir. 1990)). conclusory' proof." 171). and must be

accompanied

Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at A claim that the affiant was negligent or made an

innocent mistake is inadequate to obtain a hearing. U.S. at 171. In addition, consideration of

Franks, 438 the omitted

information must "be such that its inclusion in the affidavit would defeat probable cause." court reviews for clear Colkley, 899 F.2d at 301. the factual This

error 4

determinations

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underlying the denial of such a motion, and reviews de novo the legal conclusions. (4th Cir. 2008). The record before this court does not demonstrate that the district court erred in denying Tillage's motion for a United States v. Gary, 528 F.3d 324, 327

Franks hearing. preliminary

First, Tillage failed to make a substantial that Sandlin omitted material facts

showing

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. 899 F.2d at 300-01. Colkley,

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. Tillage

Claim of Sentencing Error that the district court committed

asserts

procedural error by failing to adequately explain the sentence imposed. This court reviews a sentence for reasonableness, Gall v. United

using an abuse of discretion standard of review. States, 552 U.S. 38, 51 (2007). requires us to ensure that the

The first step in this review district court committed no

significant procedural error. 155, 161 (4th Cir. 2008).

United States v. Evans, 526 F.3d

Procedural errors include "failing to 5

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calculate

(or

improperly

calculating)

the

Guidelines

range,

treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] on § 3553(a) [(2006)] factors, or selecting failing to a sentence

based

clearly

erroneous

facts,

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." Lynn, 592 F.3d 572, 576 (4th Cir. 2010). United States v. 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 and court has a that [it] has considered for the parties' [its] own

arguments

reasoned

basis

exercising

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 its ultimately claim." imposed," Lynn, 592 the F.3d at party 578.

sufficiently

"preserves

When counsel requests a sentence at the bottom of the Guidelines range or below, the error is preserved. 6 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. arguments "sufficiently to alert[ed] an the district Id. court These of its

responsibility

render

individualized

explanation

addressing those arguments." any procedural sentencing

Id. at 578. for

Therefore, we review of discretion and

error

abuse

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 court a substantial, can fairly injurious that effect the on the result court's and this

say

sentencing

explicit

consideration of defendant's arguments would not have altered the sentence imposed). his counsel, and the on The district court heard from Tillage, Government Tillage's regarding extensive an appropriate history,

sentence,

commented

criminal

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. 7 The court then imposed a

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sentence satisfied

at

the

bottom the

of

the

Guidelines

range. the

We

are

that

district

court

considered

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, sentence. legal before we affirm Tillage's conviction and

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

8