NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0652n.06
Case No. 16-6739
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 22, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
ARTHUR ALFORD, ) TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: GILMAN, SUTTON, and STRANCH, Circuit Judges.
SUTTON, Circuit Judge. Police executed a warrant to search Arthur Alford’s house
based on an informant’s statement that he had purchased synthetic marijuana from someone
named “Snoop” at something called the “A frame house apartment located on 209.” Police knew
that Alford went by the alias “Snoop” and corroborated that Alford lived on Highway 209 in an
A-frame house. After police found drugs and a loaded firearm at his home, Alford was indicted
and pleaded guilty to unlawful possession of a firearm. Because the information provided by the
named informant established a fair probability that police would find synthetic marijuana at
Alford’s home, we affirm the district court’s judgment that probable cause supported the search
warrant as well as its other rulings challenged on appeal.
On July 16, 2015, Drug Task Force Agent Gregg Land submitted an affidavit to a
magistrate judge seeking a warrant to search Arthur Alford’s residence. In the affidavit, Agent
Case No. 16-6739, United States v. Alford
Land said that he had probable cause to believe Alford was producing or distributing synthetic
marijuana and possessed drug paraphernalia.
Agent Land supported his probable cause assessment with statements from Brandon
Gwaltney. Earlier that day, Officer Stephen Kirkpatrick had arrested Gwaltney for possessing
synthetic marijuana. Gwaltney signed a waiver of rights and told Agent Land and Officer
Kirkpatrick that he had just purchased the marijuana for $50 from an individual named “Snoop”
at the “A frame house apartment located on 209.” R. 33-2 at 2. Officer Kirkpatrick knew that
Alford went by the street name “Snoop” and Agent Land verified that Alford’s address was
listed as 1866 Highway 209, North Ripley, Tennessee in the Tennessee Criminal Justice Portal.
He personally knew this address “to be an A frame structure apartment.” Id. Agent Land had
received complaints about the sale of marijuana from that address in the past and had ordered
surveillance of the residence before. Based on the affidavit, a judge issued a search warrant.
When officers executed the warrant, they found 145 grams of synthetic marijuana and a
loaded 9mm handgun. The government charged Alford with being a felon in unlawful
possession of a firearm. See 18 U.S.C. § 922(g)(1). Alford moved to suppress the firearm,
arguing that the affidavit failed to establish probable cause. The court denied his motion, and
Alford pleaded guilty.
In October 2016, Officer Kirkpatrick was arrested and indicted for possessing cocaine,
methamphetamine, and marijuana. These charges have since been disposed of by several guilty
pleas. In response to this development, Alford filed a motion to reconsider his motion to
suppress, arguing that he was entitled to an evidentiary hearing under Franks v. Delaware,
438 U.S. 154 (1978), to ferret out potential misconduct. The court heard testimony from Agent
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Land regarding the charges against Officer Kirkpatrick before denying Alford’s motion to
reconsider.
Because Alford had three qualifying felony convictions under the Armed Career Criminal
Act, he faced a mandatory minimum sentence of 15 years in prison. See 18 U.S.C. § 924(e)(1).
Although the sentencing guidelines recommended a range of 188 months to 235 months in
prison, the court sentenced Alford to the statutory minimum of 180 months.
Alford appeals three of the district court’s decisions: its rejection of his suppression
motion; its refusal to conduct a Franks hearing; and its refusal to impose a lower sentence.
Suppression motion. Probable cause to execute a search exists if there “is a fair
probability that contraband or evidence of a crime will be found in a particular place.” Bailey v.
City of Ann Arbor, 860 F.3d 382, 387 (6th Cir. 2017). We review whether probable cause exists
in a common-sense manner in view of the totality of the circumstances and with deference to the
magistrate judge’s determination. See Illinois v. Gates, 462 U.S. 213, 235–37 (1983).
Probable cause exists, we have held, when a witness personally observes contraband in a
specific location and is willing to be named in an affidavit. See United States v. Miller, 314 F.3d
265, 270 (6th Cir. 2002); United States v. Pelham, 801 F.2d 875, 878 (6th Cir. 1986). In Pelham
and Miller, officers relied on informants who said they had seen marijuana-growing operations
inside the defendants’ homes within the past twenty-four hours. Id. So also here. Gwaltney told
police he had just purchased synthetic marijuana from Alford at his home. This case, indeed, is
even easier. Unlike Miller and Pelham, Agent Land had also received complaints about
marijuana sales at Alford’s home before and had previously ordered surveillance of the home to
boot.
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Case No. 16-6739, United States v. Alford
Measured by these requirements and this caselaw, Alford’s probable cause claim meets
an abrupt end. What was true in Miller and Pelham is at least as true here.
Sure, Gwaltney spoke indirectly, referring to Alford by his alias “Snoop” and his home as
“the A frame house apartment located on 209.” R. 33-2 at 2. But Officer Kirkpatrick knew that
Alford went by “Snoop,” and Agent Land independently corroborated that Alford lived in an A-
frame home on Highway 209—the same house that Agent Land had received complaints about
and on which he had ordered surveillance. This was sufficient to establish a fair probability that
contraband would be found at Alford’s home.
United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996), offers no aid to Alford. In that
case, a statement from a confidential informant that he had seen marijuana being held on the
premises for distribution three days prior was insufficient to establish probable clause. Id. at
1377–80. But here, Agent Land relied on a named informant. Tips from named informants are
inherently more reliable than those from confidential informants because named informants face
a greater risk of criminal liability for fabrications. United States v. May, 399 F.3d 817, 823 (6th
Cir. 2005). And because we consider the reliability of the informant and the particularity of the
facts the informant provides on a sliding scale, we generally require less corroboration for named
informants. See United States v. Williams, 544 F.3d 683, 690 (6th Cir. 2008). Miller and
Pelham, not Weaver, govern this case.
But even if we were inclined to apply Weaver, it would not help Alford. Gwaltney told
Officer Kirkpatrick he had just purchased marijuana from Alford, whereas the informant in
Weaver had seen the drugs three days before. See Weaver, 99 F.3d at 1378. That difference
made it far more likely that police would find marijuana at Alford’s home than they would have
at Weaver’s house.
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Case No. 16-6739, United States v. Alford
Franks hearing. Alford adds that he is entitled to a hearing under Franks v. Delaware,
438 U.S. 154 (1978), to determine if Agent Land engaged in misconduct to obtain the search
warrant. To merit a Franks hearing, a defendant must make a substantial preliminary showing
that (i) the affiant knowingly or recklessly included a false statement in the search warrant
affidavit and (ii) the allegedly false statement was necessary to the probable cause finding.
United States v. Rose, 714 F.3d 362, 370 (6th Cir. 2013).
Alford does not point to an allegedly false statement in the affidavit. The most he can say
is that it omitted information about Officer Kirkpatrick. But Franks is generally inapplicable to
such omissions, except where the affiant excluded critical information intentionally to mislead
the magistrate judge. See Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998).
What at any rate does Alford think the affidavit omitted? He cannot argue that the
affidavit should have included information about Officer Kirkpatrick’s arrest, because that didn’t
happen until over a year later. Alford must believe that Agent Land intentionally omitted
information about Officer Kirkpatrick’s drug habits or criminal propensity. But Alford has
presented no evidence of that or even that Agent Land had any reason to know of Kirkpatrick’s
drug habits. All the record indicates is that Agent Land has known Officer Kirkpatrick since he
was a kid but that he “didn’t personally hang out with him or have dinner with him.” R. 84 at 26.
That is a far cry from a showing of knowing deception or reckless disregard for the truth.
Sentence. Alford argues that his 180-month prison sentence was substantively
unreasonable and a violation of the Eighth Amendment’s prohibition on cruel and unusual
punishment. But his sentence was below the range suggested by the sentencing guidelines:
188 to 235 months. And because his sentence was the minimum amount allowed by the relevant
statute in light of his three serious drug felonies, 18 U.S.C. § 924(e), any claim of substantive
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unreasonableness has no purchase. See United States v. Higgins, 557 F.3d 381, 398 (6th Cir.
2009).
This statute also has withstood Eighth Amendment challenges in every circuit to consider
the question, including this one. See, e.g., United States v. Reynolds, 215 F.3d 1210, 1214 (11th
Cir. 2000); United States v. Cardoza, 129 F.3d 6, 18 (1st Cir. 1997); United States v. Presley,
52 F.3d 64, 68 (4th Cir. 1995); United States v. Warren, 973 F.2d 1304, 1311 (6th Cir. 1992);
United States v. Mitchell, 932 F.2d 1027, 1028 (2d Cir. 1991); United States v. Hayes, 919 F.2d
1262, 1266 (7th Cir. 1990); United States v. Baker, 850 F.2d 1365, 1372 (9th Cir. 1988).
The Supreme Court likewise has recognized that Congress need not give the courts any
sentencing discretion when defining criminal punishments and that mandatory prison sentences
do not constitute cruel and unusual punishment. See Chapman v. United States, 500 U.S. 453,
467 (1991); Harmelin v. Michigan, 501 U.S. 957, 995 (1991).
No amount of prison time, it is true, is per se constitutional. See Solem v. Helm, 463 U.S.
277, 278 (1983). But the Eighth Amendment “forbids only extreme sentences grossly
disproportionate to the crime.” Harmelin, 501 U.S. at 1001 (Kennedy, J. concurring in part and
concurring in the judgment) (quoting Solem, 463 U.S. at 288); see also Graham v. Florida,
560 U.S. 48, 59 (2010) (treating Justice Kennedy’s Harmelin concurrence as the “controlling
opinion” on this issue). A 180-month prison sentence for unlawful possession of a firearm
accompanied by repeated prior cocaine-distribution convictions does not meet that stringent
requirement.
For these reasons, we affirm.
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