US v. Paul Tillage, No. 09-4950 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4950 UNITED STATES OF AMERICA, Plaintiff Appellee, v. PAUL TILLAGE, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 contained an information, the affidavit intentional and a more in or support reckless accurate 2 of the search omission of affidavit would warrant material not have 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 aggregate sentence of 262 months. On First, appeal, Tillage concluded that argues he Tillage that failed concurrently, for an This appeal followed. asserts the to served two district make a claims court of erred error. it showing substantial when 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 unreasonable argues because the that his district sentence court failed articulate a basis for the sentence imposed. 3 is procedurally to adequately I. In the evidentiary defendant bears 1994). preliminary false district hearing, a Franks hearing. Cir. Denial of Evidentiary Hearing court, pursuant heavy to burden Tillage Franks to moved v. establish for an Delaware. the need A for a United States v. Jeffus, 22 F.3d 554, 558 (4th First, showing statements a defendant that the necessary affiant to Franks, 438 U.S. at 155-56. must a make a substantial intentionally finding of included probable cause. 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 misleading. Id. of whether proof. and made, the must be The showing must be more than accompanied by a detailed offer of Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at 171). A claim that the affiant was negligent innocent mistake is inadequate to obtain a hearing. U.S. affidavit (quoting United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)). conclusory they at 171. In addition, consideration of or made an 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. error 4 the factual This determinations 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 Franks hearing. preliminary erred in denying Tillage s motion for a First, Tillage failed to make a substantial showing that Sandlin omitted material knowingly or recklessly, to mislead the magistrate. facts 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 asserts that the district court committed procedural error by failing to adequately explain the sentence imposed. This court reviews a for reasonableness, using an abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51 (2007). requires us to ensure that significant procedural error. 155, 161 (4th Cir. 2008). the sentence The first step in this review district court committed no United States v. Evans, 526 F.3d Procedural errors include failing to 5 calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] based on § 3553(a) clearly [(2006)] erroneous factors, facts, explain the chosen sentence. or selecting failing to a sentence adequately 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 arguments and court has a that [it] reasoned has basis legal decisionmaking authority. considered for the exercising parties [its] own 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 sufficiently the preserves one its ultimately claim. imposed, Lynn, 592 the F.3d party at 578. When counsel requests a sentence at the bottom of the Guidelines range or below, the error is preserved. 6 Id. at 581. 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 responsibility to alert[ed] render addressing those arguments. any procedural sentencing the an district court individualized Id. at 578. error Id. for of its explanation Therefore, we review abuse reverse unless the error was harmless. These of discretion and 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 say that effect the on the result sentencing court s and this explicit consideration of defendant s arguments would not have altered the sentence imposed). his counsel, sentence, and commented the on The district court heard from Tillage, Government Tillage s regarding extensive an appropriate 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. 7 The court then imposed a sentence at satisfied the that bottom the of the district Guidelines court range. considered the We are 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 affirm Tillage s conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8
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