IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2008
No. 06-10605 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DONALD STEVEN LOONEY; MARY BETH LOONEY
Defendants - Appellants
Appeals from the United States District Court
for the Northern District of Texas
Before REAVLEY, JOLLY, and GARZA, Circuit Judges.
PER CURIAM:
Donald and Mary Beth Looney, husband and wife, were convicted in a jury
trial for conspiracy and possession of methamphetamine with intent to distribute
and for possessing firearms in furtherance of drug-trafficking crimes. Both were
sentenced to 548 months in prison. Mr. Looney appeals his conviction on
grounds of the district court’s denial of his motion to suppress. Ms. Looney
appeals her sentence; she is effectively serving a life sentence for her first
conviction. For the reasons that follow, we AFFIRM the conviction of Mr.
Looney. We AFFIRM the sentence of Ms. Looney.
No. 06-10605
I.
Mr. Looney argues that the district court erroneously denied his motion
to suppress. In his motion to suppress, Mr. Looney alleged that the evidence
seized from his home pursuant to a search warrant (methamphetamine and four
guns) must be suppressed because the search warrant was obtained with false
or misleading information.
In Franks v. Delaware, the Supreme Court set out the legal principles that
govern how courts are to address a defendant’s allegations of false statements
in warrant affidavits:
[W]here the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit,
and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s
request. In the event that at that hearing the
allegation of perjury or reckless disregard is established
by the defendant by a preponderance of the evidence,
and, with the affidavit’s false material set to one side,
the affidavit’s remaining content is insufficient to
establish probable cause, the search warrant must be
voided and the fruits of the search excluded to the same
extent as if probable cause was lacking on the face of
the affidavit.
438 U.S. 154, 155-56 (1978).
However, even if the defendant proves that one or more statements in the
affidavit are false, and yet fails to prove that the affiant deliberately or
recklessly included such false information in the affidavit, the court may
consider the entire affidavit -- without any excision -- under the good-faith
exception to the exclusionary rule. See United States v. Cavazos, 288 F.3d 706,
710 (5th Cir. 2002) (“After several hearings ... the district court found no
evidence to suggest that the officers had deliberately or recklessly provided the
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No. 06-10605
false information. Having made these findings, the good-faith exception would
have allowed the court to consider the entire affidavit, and the analysis should
have ended there.”) “The good-faith exception provides that where probable
cause for a search warrant is founded on incorrect information, but the officer’s
reliance upon the information’s truth was objectively reasonable, the evidence
obtained from the search will not be excluded.” Id. at 709. “If the good-faith
exception applies, we need not reach the question of probable cause.” Id. at 710
(brackets, internal quotation marks and citation omitted).
In his brief before this court, Mr. Looney points to eight alleged “factual
misstatements” in the search warrant affidavit. He contends that these eight
statements should be excised from the affidavit, either because they are false
and were made intentionally or with a reckless disregard for the truth, or
because they are based on information supplied by a witness whose credibility
and basis for knowledge are not established in the affidavit. He contends further
that, once these statements are excised, the remaining portion of the affidavit
is insufficient to provide probable cause for issuance of the warrant.
In his motion to suppress, however, and at the suppression hearing as
well, Mr. Looney identified only one alleged false statement in the affidavit. He
did not allege in his motion, nor did he argue at the hearing, that the affidavit
included the other allegedly false statements that are now itemized in his brief;
nor did he contend in the district court, as he now contends, that the affidavit
was based on information supplied by a witness whose credibility and basis for
knowledge were not established on the face of the affidavit. This court has held
that “failure to raise specific issues or arguments in pre-trial suppression
proceedings operates as a waiver of those issues or arguments for appeal.”
United States v. Pope, 467 F.3d 912, 918-19 (5th Cir. 2006).
The district court found that although Mr. Looney had shown by a
preponderance of the evidence that the single statement identified in his motion
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No. 06-10605
to suppress was false or misleading, he had failed to prove that the affiant officer
had acted deliberately or with reckless disregard for the truth when he included
that statement in the affidavit. The court stated that, based on the officer’s
“testimony and his forthright and honest demeanor on cross examination,” the
officer’s “testimony regarding his intentions is credible and that any error ... was
inadvertent and not deliberate or reckless.” Once it concluded that Mr. Looney
had failed to meet his burden of proving that the affiant officer acted deliberately
or with reckless disregard for the truth, the district court held that the good-
faith exception applied. Thus, the district court examined the entire affidavit,
including the challenged statement, and concluded that it established probable
cause to search Mr. Looney’s residence.
The district court’s factual finding that the affiant officer did not
deliberately or recklessly include the false statement in the affidavit cannot be
disturbed unless it is clearly erroneous. United States v. Gonzalez, 328 F.3d 755,
758 (5th Cir. 2003). Based on our review of the record, we find no basis to
overturn the district court’s assessment.
Furthermore, assuming that Mr. Looney did not waive his argument
regarding the other statements in the affidavit that he challenges for the first
time on appeal, the district court did not plainly err by failing, sua sponte, to
excise those statements. See Pope, 467 F.3d at 919 n.20 (holding that, assuming
suppression argument not waived, there was no plain error). Mr. Looney
presented no evidence at the suppression hearing regarding the alleged falsity
of the statements or the credibility of the witness who supplied information to
the affiant officer. In short, the district court did not err in determining that the
requirements of the Fourth Amendment were met for the search of Mr. Looney’s
residence, based on the challenged affidavit.
We will now turn to address the sentencing issues raised by Ms. Looney.
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No. 06-10605
II.
As we have previously noted, Ms. Looney was sentenced to 548 months (45
years) of imprisonment. Although the record indicates she was not spotless, she
nevertheless had no previous convictions. Yet, because she was 53 years old at
the time of sentencing, she was given effectively a life sentence; if she can do her
part and finish her sentence, she will be about ninety-eight years old when she
is released to the unimprisoned world once again. The judge, however, had little
discretion in imposing this sentence. As her counsel observed at sentencing, the
district court’s sentencing discretion was severely limited. Because of the way
the indictment was stacked by the prosecutor, Ms. Looney was subject to
mandatory minimum terms of imprisonment for forty years (ten years for the
drug conspiracy and possession with intent to distribute counts, five consecutive
years for the first gun count, and twenty-five consecutive years for the second
gun count). Although thirty years of her sentence can be attributed to
possessing guns in furtherance of her methamphetamine dealing, there is no
evidence that Ms. Looney brought a gun with her to any drug deal, that she ever
used one of the guns, or that the guns ever left the house. Because of our serious
concerns regarding the harshness of Ms. Looney’s sentence, we have very
carefully considered Ms. Looney’s arguments, which we now turn to address.
A.
Ms. Looney contends that her sentence is procedurally unreasonable for
two reasons. She argues first that the district court erroneously thought the
Guidelines were mandatory. But the district court, in its written statement of
reasons, stated that it recognized that the Guidelines were “advisory only.”
Next, Ms. Looney contends that the district court’s oral statement of
reasons was not sufficient. The only argument Ms. Looney made before the
district court concerning her sentence length, however, was a request for the
district court to take into consideration the fact that she had many people who
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No. 06-10605
were concerned about her and supported her. The district court acknowledged
that fact before announcing the sentence, which was at the low end of the
Guideline range. The district court did not need to say more than it did. As the
Supreme Court recognized in Rita v. United States:
Circumstances may well make clear that the judge
rests his decision upon the Commission’s own reasoning
that the Guidelines sentence is a proper sentence (in
terms of § 3[5]53(a) and other congressional mandates)
in the typical case, and that the judge has found that
the case before him is typical. Unless a party contests
the Guidelines sentence generally under §
3553(a)—that is argues that the Guidelines reflect an
unsound judgment, or, for example, that they do not
generally treat certain defendant characteristics in the
proper way—or argues for departure, the judge
normally need say no more.
127 S. Ct. 2456, 2468 (2007).
Here, the district court apparently thought Ms. Looney’s case was typical
and that she was entitled to a within-Guideline sentence. In the words of Rita,
the judge “rest[ed] his decision upon the Commission’s own reasoning that the
Guidelines sentence is a proper sentence.” Id. And since Ms. Looney did not
make any argument to the contrary, the district court did not need to explain
why it did not find a non-Guideline sentence necessary.
B.
Ms. Looney argues next that her 548-month sentence—effectively a life-
sentence for an individual in her fifties with no prior convictions—violates the
Eighth Amendment’s prohibition against “cruel and unusual” punishments
because it is “grossly disproportionate” to the crime she committed.
We have previously recognized, following guidance from the Supreme
Court, that successful Eighth Amendment challenges to prison-term lengths will
be rare. United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997). And while
a life sentence for a crime involving no actual violence might be considered a
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No. 06-10605
disproportionate punishment, it is not “grossly disproportionate” as that term
is understood under current law. See, e.g., id. at 942-44 (upholding a 438-month
sentence for defendants who committed drug and gun offenses); United States
v. Hungerford, 465 F.3d 1113, 1118 (9th Cir. 2006) (upholding a 159-year
sentence for a defendant who took part in a series of robberies); cf. Harmelin v.
Michigan, 501 U.S. 957, 994 (1991) (“Severe, mandatory penalties may be cruel,
but they are not unusual in the constitutional sense . . . .”). In sum, although we
consider Ms. Looney’s sentence to be unduly harsh for someone who has no
previous conviction of any sort, “[i]t is for Congress to ameliorate the result of
application of [statutory mandatory minimum sentences] if it deems it too
harsh.” United States v. Casiano, 113 F.3d 420, 426 (3d Cir. 1997).
C.
Ms. Looney’s final contention is that either count three or four of the
indictment should have been dismissed and that the district court erred by
sentencing her for both. Both counts charged Ms. Looney with violating 18
U.S.C. § 924(c), which makes it a crime to possess a gun in furtherance of a drug
trafficking offense. Specifically, count three of the indictment alleged that Ms.
Looney possessed two guns in furtherance of the offense of conspiracy to possess
with the intent to distribute methamphetamine. Count four alleged that Ms.
Looney possessed two different guns in furtherance of the offense of possession
with the intent to distribute methamphetamine. The indictment charged
possession of guns with these two separate predicate offenses. One predicate
offense is conspiracy to possess with the intent to distribute methamphetamine.
The other predicate offense, possessing with the intent to distribute
methamphetamine, charged facts also charged in the conspiracy.
Ms. Looney argues that she cannot be sentenced for two § 924(c) gun
offenses when one of the predicate offenses is conspiracy to commit crime X and
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No. 06-10605
the other offense is just crime X. But that argument is foreclosed by United
States v. Privette, where we held:
Multiple sentences under § 924(c) must be based upon
the number of drug trafficking crimes in which firearms
were used. Drug trafficking crimes separated by the
measure of the double jeopardy clause can each support
§ 924(c) convictions. A conspiracy and its target crimes
are separate offenses for these purposes. [The
defendant’s] conviction of conspiracy and his conviction
of possession with intent to distribute could each
support a separate § 924(c) conviction and sentence.
947 F.2d 1259, 1262 (5th Cir. 1991) (internal citations omitted). Thus, the
district court did not err in confecting its sentence.
D.
We have carefully considered all of Ms. Looney’s challenges to her sentence
and can find no basis upon which to vacate any portion of it. As we have noted,
Ms. Looney was subject to a mandatory minimum sentence of forty years --
essentially determined by Congress. Although Congress established the
mandatory minimum terms of imprisonment, and further provided that the
firearms counts must be served consecutively, it is the prosecutor’s charging
decision that is largely responsible for Ms. Looney’s ultimate sentence. Instead
of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might
well have charged her with only one, which would have avoided triggering the
twenty-five-year mandatory, consecutive sentence for the second firearm count.
The prosecutors also could have chosen to charge Ms. Looney with the drug
offenses and requested a two-level enhancement under the Sentencing
Guidelines based on the involvement of firearms with the offenses. Instead, the
prosecutor exercised his discretion -- rather poorly we think -- to charge her with
counts that would provide for what is, in effect, a life sentence for Ms. Looney.
We do not question the authority -- or the wisdom -- of Congress’s decision
to punish severely individuals who possess weapons in furtherance of drug-
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No. 06-10605
dealing. Nor do we in any way minimize the seriousness of Ms. Looney’s
offenses. Moreover, there is nothing legally improper about the prosecutors’
charging decisions with respect to Ms. Looney, nor about the practice of
confecting an indictment that would provide for the largest mandatory sentence.
Nevertheless, we must observe that the power to use § 924(c) offenses, with their
mandatory minimum consecutive sentences, is a potent weapon in the hands of
the prosecutors, not only to impose extended sentences; it is also a powerful
weapon that can be abused to force guilty pleas under the threat of an
astonishingly long sentence. For example, a defendant who sincerely and
fervently believes in his innocence, and who has witnesses and other evidence
that support his claim of innocence, could easily be pressured into pleading
guilty under a plea agreement that eliminates the threat -- rather than face the
possibility of life imprisonment based on a prosecutor’s design of an indictment
that charges and stacks mandatory minimum consecutive sentences. We merely
observe that the possibility of abuse is present whenever prosecutors have
virtually unlimited charging discretion and Congress has authorized mandatory,
consecutive sentences. We trust that the prosecutors in this Circuit are aware
of the potency of this weapon and its potential for abuse, and that they exercise
extreme caution in their use of it, all in the interests of justice and fairness.
III.
For the foregoing reasons, Mr. Looney’s conviction and Ms. Looney’s
sentence are
AFFIRMED.
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