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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15463
Non-Argument Calendar
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D.C. Docket No. 2:17-cr-00011-SPC-CM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES KYLE RICHARDSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 11, 2019)
Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.
PER CURIAM:
James Richardson appeals his convictions and sentences for possession with
intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and
851, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§
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922(g)(1) and 924(e). He argues on appeal that: (1) the affidavit supporting the
search warrant authorizing the search of his home lacked probable cause because it
was based on stale information; (2) Florida robbery does not qualify as a violent
felony under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e); and (3)
the government failed to prove that his April 29, 2010, convictions for sale of a
controlled substance occurred on different dates for purposes of the ACCA. After
thorough review, we affirm.
We review whether an affidavit established probable cause de novo and
findings of historical fact for clear error, taking care to review and “to give due
weight to inferences drawn from those facts by resident judges and local law
enforcement officers.” United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir.
2000) (quotations omitted). Our task on appeal is to ensure there is a substantial
basis for the magistrate’s determination of probable cause. United States v. Foree,
43 F.3d 1572, 1576 (11th Cir. 1995). The breadth of the good-faith exception to the
exclusionary rule is a question of law and is reviewed de novo. United States v.
Martin, 297 F.3d 1308, 1312 (11th Cir. 2002).
In sentencing challenges, we consider legal issues de novo, review factual
findings for clear error, and apply the guidelines to the facts with due deference,
which is akin to clear error review. United States v. Rothenberg, 610 F.3d 621, 624
(11th Cir. 2010). Specifically, we review de novo whether a particular offense
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constitutes a “violent felony” under the ACCA. United States v. Rainey, 362 F.3d
733, 734 (11th Cir. 2004). We also review whether prior offenses meet the ACCA’s
different-occasions requirement de novo. United States v. Longoria, 874 F.3d 1278,
1281 (11th Cir. 2017), cert. denied, 139 S. Ct. 270 (2018). Under the prior panel
precedent rule, we cannot overrule a prior panel’s holding outside en banc review,
even if we are convinced that the prior holding was wrong. United States v. Steele,
147 F.3d 1316, 1317-18 (11th Cir. 1998).
First, we are unpersuaded by Richardson’s claim that the district court erred
in denying his motion to suppress evidence based on a search warrant that lacked
probable cause. To establish probable cause, an affidavit must state facts “sufficient
to justify a conclusion that evidence or contraband will probably be found at the
premises to be searched.” Martin, 297 F.3d at 1314 (quotations omitted).
Specifically, the affidavit “should establish a connection between the defendant and
the residence to be searched and a link between the residence and any criminal
activity.” Id. The information in the affidavit must be “fresh,” and where the
information comes from an informant, the affidavit must also demonstrate the
informant’s veracity and basis of knowledge or that there is sufficient independent
corroboration of the informant’s information. Id.
The information supporting the government’s application for a warrant must
show that probable cause exists at the time the warrant issues. United States v.
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Harris, 20 F.3d 445, 450 (11th Cir. 1994). To determine whether information is
“stale” and therefore unable to establish probable cause, we examine (1) the length
of time; (2) the nature of the suspected crime; (3) the habits of the accused; (4) the
character of the items sought; and (5) the nature and function of the premises to be
searched. Id. Stale information does not void an affidavit where the affidavit
“updates, substantiates, or corroborates” the stale material. Id.
Under the good-faith exception, evidence need only be suppressed if the
officers were dishonest or reckless in preparing their affidavit or could not have
harbored an objectively reasonable belief in the existence of probable cause. Martin,
297 F.3d at 1313. There are four situations where the good-faith exception does not
apply: (1) where the magistrate or judge was misled by information the affiant knew
was false or was reckless in determining its veracity; (2) where the magistrate or
judge wholly abandoned their judicial role; (3) where the warrant is based on an
affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable; and (4) where a warrant is so facially deficient that
the executing officers cannot reasonably presume it to be valid. United States v.
Leon, 468 U.S. 897, 923 (1984). In determining whether an affidavit lacks indicia
of probable cause, we look only at the face of the affidavit. United States v.
Robinson, 336 F.3d 1293, 1296 (11th Cir. 2003). Where the sufficiency of an
affidavit is not an open-and-shut matter but a “close enough” question, the good-
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faith exception applies. United States v. Blake, 868 F.3d 960, 975 (11th Cir. 2017).
We will determine, under the totality of the circumstances, whether a reasonably
well-trained officer would have relied upon the warrant. United States v. Taxacher,
902 F.2d 867, 872 (11th Cir. 1990).
As an initial matter, we recognize that the affidavit may not have supported a
finding of probable cause. The affidavit provided allegations from interviewees that
Richardson was selling narcotics in the Englewood area, where the residence to be
searched was located. The affidavit added that, three months before the warrant was
applied for, police found baggies of methamphetamine (“meth”) and paraphernalia
in the garbage outside the residence and that, two weeks before the warrant was
executed, the police found a small cannabis stem in the trash outside the residence.
Notably, the affidavit did not connect Richardson to the residence to be searched,
and while it suggested drug use at the residence, it did not demonstrate or allege drug
trafficking.
Nevertheless, we cannot say that the officer’s reliance on the warrant was
unreasonable. The Supreme Court has limited the application of the good faith
exception in this context where the warrant was based on an affidavit so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable or the warrant is so facially deficient that the executing officers cannot
reasonably presume it to be valid. Leon, 468 U.S. at 923. As we’ve noted, the
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affidavit alleged that, on two occasions, drug residue or paraphernalia were found in
garbage identified with the residence by mail in the same bag, and that, on a third
occasion near the time of the application, a small amount of drug remnants were
found in trash in front of the residence -- at the very least, indicating more than one
isolated violation of drug use. Based on these allegations, we cannot conclude that
a warrant would be “so lacking” in probable cause or “so facially deficient” that it
would have been entirely unreasonable for an officer to believe, based on the
affidavit, that the meth evidence was timely or that the cannabis stem made the meth
evidence timely again. Indeed, Richardson cites no precedent to this effect, and we
cannot find any. Nor do we even have any precedent addressing how quickly
information about drug use or drug trafficking might go stale. Because it is a “close
enough question,” and “not an open and shut matter,” the good faith exception to the
exclusionary rule applies. See Blake, 868 F.3d at 975. Accordingly, we affirm. See
United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015) (holding that we
may affirm the denial of a motion to suppress on any ground supported by the
record).
Next, we find no merit to Richardson’s challenges to his sentencing under the
ACCA, both of which, he acknowledges, are foreclosed by binding precedent. As
for whether Florida robbery constitutes a violent felony under the ACCA, the
Supreme Court has recently held that Florida robbery qualifies. Stokeling v. United
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States, No. 17-5554, 2019 WL 189343 (Jan. 15, 2019). Thus, Supreme Court
precedent squarely forecloses Richardson’s Florida robbery argument.
As for whether his April 29 convictions were proven to be committed on
different occasions, Richardson says that, in imposing a sentence above the
otherwise applicable statutory maximum, the sentencing court could only rely on the
elements of the prior offense to impose the sentence, and not on the charging
documents, which is where the dates for the offenses appear. However, we’ve held
that the different-occasions nature of prior convictions can be proved by referencing
the dates in the charging document. Longoria, 874 F.3d at 1283. Because Longoria
has not been overruled by the Supreme Court or this Court sitting en banc, we affirm.
AFFIRMED.
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