US v. Paul Tillage


UNPUBLISHED PER CURIAM OPINION filed.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]

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US v. Paul Tillage Doc. 0 Case: 09-4950 Document: 37 Date Filed: 12/06/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4950 UNITED STATES OF AMERICA, Plaintiff Appellee, v. PAUL TILLAGE, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Case: 09-4950 Document: 37 Date Filed: 12/06/2010 Page: 2 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 Case: 09-4950 Document: 37 Date Filed: 12/06/2010 Page: 3 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 Case: 09-4950 Document: 37 Date Filed: 12/06/2010 Page: 4 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 Case: 09-4950 Document: 37 Date Filed: 12/06/2010 Page: 5 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 Case: 09-4950 Document: 37 Date Filed: 12/06/2010 Page: 6 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. Case: 09-4950 Document: 37 Date Filed: 12/06/2010 Page: 7 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 Case: 09-4950 Document: 37 Date Filed: 12/06/2010 Page: 8 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

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