*

 The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0197p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

KENNETH MARTIN,

 Defendant-Appellant.

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No. 06-5002

Appeal from the United States District Court

for the Eastern District of Kentucky at Covington.

No. 05-00025—David L. Bunning, District Judge.

Argued: July 23, 2007

Decided and Filed: May 23, 2008 

Before: BATCHELDER and DAUGHTREY, Circuit Judges; ROSEN, District Judge.*

_________________

COUNSEL

ARGUED: Peter B. Coughlan, Fort Thomas, Kentucky, for Appellant. Laura K. Voorhees,

ASSISTANT UNITED STATES ATTORNEY, Fort Mitchell, Kentucky, for Appellee. ON BRIEF:

Peter B. Coughlan, Fort Thomas, Kentucky, for Appellant. Laura K. Voorhees, ASSISTANT

UNITED STATES ATTORNEY, Fort Mitchell, Kentucky, Charles P. Wisdom, Jr., ASSISTANT

UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. 

_________________

OPINION _________________

ROSEN, District Judge.

I. INTRODUCTION

Defendant-Appellant Kenneth Martin conditionally pled guilty in the United States District

Court for the Eastern District of Kentucky to charges of being a felon-in-possession of a firearm in

violation of 18 U.S.C. § 922(g)(1) and was sentenced with an enhancement under the Armed Career

Criminal Act to a term of imprisonment of 180 months. Martin now appeals his conviction and

sentence arguing that the district court erred in denying his motions to suppress evidence and to

1
No. 06-5002 United States v. Martin Page 2

disclose the identity of the confidential informant whose information led to the search of his

residence and the ultimate discovery of the gun upon which the charges against him were predicated.

Martin also argues that there is insufficient evidence to establish that the Walther .380 caliber

semiautomatic pistol found by the agents during the execution of the search warrant had traveled

in, or affected, interstate commerce. He further argues that his prior criminal convictions did not

constitute sufficient predicate offenses for purposes of a sentencing enhancement under the Armed

Career Criminal Act and that the district court’s use of his prior convictions in fashioning his

sentence violated the Sixth Amendment. For the reasons set forth below, we AFFIRM the district

court’s judgment.

II. FACTUAL BACKGROUND

On January 5, 2005, Agent Nathan Honaker of the Northern Kentucky Drug Strike Task

Force (“NKDSF”) received information from a confidential informant (“CI”) concerning illegal drug

activity at Defendant Kenneth Martin’s residence at 1219 Greenup Street in Covington, Kentucky.

At the time, Martin’s mother, Lauretta Martin, owned the Greenup Street home but did not live

there; only Martin and his sister, Kim, resided in the house. The information provided by the CI,

however, was rather vague -- there was no indication of a specific time or date on which the alleged

drug activity occurred at the residence, nor was there any indication of the identity of the people

engaged in the drug activity, or the type of drugs involved. All that Agent Honaker stated in his

Affidavit in support of his search warrant application regarding the CI’s tip was that he had

“received information from a confidential informant that there was drug activity at 1219 Greenup

Street, Covington, KY [and] the confidential informant advised that Kenneth Martin resides at th[at]

residence.” [2/9/05 Application and Affidavit in Support of Search Warrant.] Honaker further stated

that the informant had “provided reliable information in the past on multiple occasions that ha[d]

resulted in seizure of illegal controlled substances.” Id.

After Honaker received the CI’s tip, on February 8, 2005, two other NKDSF Agents, Agents

Long and Hardcorn, inspected the trash that had been left on the curb in front of Martin’s house and

retrieved a material that subsequently field-tested positive for cocaine. The cocaine residue was

found in the same garbage bag as mail with the address of 1219 Greenup Street. Honaker

subsequently reviewed Martin’s criminal history, which revealed that in July 1995, Martin had been

convicted on four counts of trafficking in controlled substances in Kenton County, Kentucky.

Martin’s criminal history further revealed that he had been arrested for possession of marijuana on

two earlier occasions. Honaker also verified through state records that Martin held an active

Kentucky drivers’ license with the address of 1219 Greenup Street, Covington, Kentucky.

Based upon the foregoing, the following day, February 9, 2005, Honaker applied for, and

obtained from Judge Ann Ruttle of the Kenton County District Court, a search warrant for the 1219

Greenup Street residence.

On February 10, 2005, the NKDSF, aided by Covington and Kenton County Police Officers,

executed the search warrant. During the search, agents discovered a Walther .380 caliber

semiautomatic pistol, a magazine loaded with seven rounds, along with loose ammunition, a gun

cleaning kit, a plastic bag containing marijuana, a tin with burnt material, assorted phone bills, a

rolling machine, a hemostat with a burnt tip, foil-wrapped white tablets, assorted documents, a

Motorola cell phone and two computer disks. However, no cocaine was found in the house.

Honaker subsequently turned this case over to the Bureau of Alcohol, Tobacco and Firearms (the

“ATF”), which determined that the firearm had been shipped or transported in interstate commerce.

On March 9, 2005, Martin was indicted for being a felon-in-possession of a firearm, in

violation of 18.U.S.C. § 922(g)(1). Martin thereafter filed pretrial motions (1) to disclose the

identity of the confidential informant and (2) to suppress the evidence seized during the execution
No. 06-5002 United States v. Martin Page 3

1 Franks v. Delaware, 438 U.S. 154 (1978).

of a search warrant. In support of his motion to disclose the identity of the confidential informant,

Martin challenged the existence and reliability of the confidential informant. In support of his

motion to suppress evidence, Martin argued that the warrant affiant, NKDSF Agent Honaker,

knowingly or intentionally failed to disclose that the NKDSF director, Jim Liles, previously had had

a romantic relationship with Martin’s former girlfriend, Valerie Slaughter.

The district court denied both motions, finding that Martin was not entitled to a Franks

evidentiary hearing1

 and that, notwithstanding the paucity of Honaker’s averments about the

confidential informant, the CI’s information and the cocaine residue found during the independent

police investigation established sufficient probable cause to issue a search warrant. The district

court also held that the search warrant affidavit was not deficient due to the lack of information

concerning the NKDSF director and Martin’s ex-girlfriend: “The fact that NKDSF Director Jim

Liles may have had a romantic relationship twelve years earlier with someone who also had a

relationship with Defendant has absolutely no bearing on probable cause in this case.” [7/19/05

Sealed Memorandum Opinion and Order, pp. 8-9.]

Subsequently, Martin entered a conditional plea to being a felon-in-possession of a firearm;

there was no written plea agreement. Martin did, however, specifically reserve in writing the right

to appeal “the Adverse Determination and Decision relative to the Motion to Suppress Evidence

seized during the search of the residence at 1219 Greenup Street, Covington, Kentucky, filed May

3, 2005.” [9/16/05 Notice.]

During the plea hearing, Martin admitted to being a convicted felon who knowingly and

unlawfully possessed a firearm. Also, Martin admitted, without objection, to understanding the

third element of § 922(g)(1), requiring the firearm to have been in, or have affected, interstate

commerce. The Government submitted that the firearm was manufactured in Alabama and had

traveled in interstate commerce to Kentucky. 

The district court accepted Martin’s plea and, on December 21, 2005, sentenced Martin to

180 months imprisonment. During the sentencing hearing, Martin orally objected to his

classification as an Armed Career Criminal. Martin argued that because his three previous cocaine

trafficking offenses were consolidated into one indictment they did not satisfy 18 U.S.C § 924(e).

The district court overruled Martin’s objection, finding that his prior offenses were committed on

different occasions, despite having been consolidated for trial.

Martin now appeals his conviction and sentence. 

III. DISCUSSION

A. MARTIN WAIVED HIS RIGHT TO APPEAL THE SUFFICIENCY OF THE

GOVERNMENT’S EVIDENCE

Martin first challenges the sufficiency of the evidence that supports his conviction.

Specifically, he contends that there was no evidence that the firearm he is charged with possessing

traveled in, or affected, interstate commerce. The Government contends that Martin waived his right

to appeal the interstate commerce nexus by entering a guilty plea to the charge without reserving the

right to appeal the issue. Martin counters that because his argument is a jurisdictional one, it is not

waived.

Whether a defendant has waived his right to appeal is a legal question that an appellate court

reviews de novo. United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005).
No. 06-5002 United States v. Martin Page 4

2

 Although Rule 11 requires that a conditional plea reserve the right to appeal in writing, the failure to do so

may be excused when it is harmless. See Fed. R. Crim. P 11(h) (“Any variance from the procedures required by this rule

which does not affect substantial rights shall be disregarded.”); see also United States v. Ormsby, 252 F.3d 844, 848 n.3

(6th Cir. 2001) (requirement that reservation of rights be in writing excused where transcript of the plea hearing made

clear that defendant’s plea was conditional, the government consented to the conditional plea, and the conditional plea

was approved by the court.)

3

 18 U.S.C. § 1956 defines “specified unlawful activity” for purposes of 18 U.S.C. § 1957 as a felony food

stamp transaction that involves a quantity of coupons having a value of not less than $5,000.

Generally, a voluntary and unconditional guilty plea “bars any subsequent non-jurisdictional

attack on the conviction.” United States v. Pickett, 941 F.2d 411, 416 (6th Cir. 1991). However,

under Fed. R. Crim. P. 11(a)(2), a defendant may, with the approval of the court and consent from

the government, enter a conditional guilty plea “reserving in writing the right to have an appellate

court review an adverse determination of a specified pre-trial motion.” Fed. R. Crim. P. 11(a)(2).2

The provision places an “affirmative duty on the defendant to preserve all potential collateral

challenges through the preservation mechanism of Rule 11(a)(2).” Pickett, supra, 941 F.2d at 416.

“[I]n the absence of a court-approved reservation of issues for appeal, [a defendant pleading guilty]

waives all challenges to the prosecution except those going to the court’s jurisdiction.” Id. (citing

Hayle v. United States, 815 F.2d 879, 881 (2nd Cir. 1987)).

Where a defendant does not specify an issue for preservation on appeal, federal courts have

normally held that Rule 11(a)(2) bars its presentation on appeal. In Pickett, the defendant pled guilty

to trafficking in controlled substances. He subsequently appealed his conviction, arguing that his

prosecution in federal court commenced in violation of the Speedy Trial Act and that his indictment

for violation of federal drug laws subsequent to his state indictment for trafficking in drugs violated

the Fourteenth Amendment’s due process clause. Pickett, 941 F.2d at 416. Because the defendant

did not enter a conditional plea that specified these issues for preservation on appeal, the Pickett

court determined that operation of Rule 11(a)(2) barred the presentation of both of these arguments

against his conviction upon appeal. Id. 

Similarly, in United States v. Napier, 233 F.3d 394, 399 (6th Cir. 2000), we determined that

the defendant’s challenge of the district court’s pretrial evidentiary rulings had not been preserved

for appeal where the defendant’s plea agreement only reserved the right to appeal the district court’s

order denying his motions to dismiss the indictment.

This Circuit has specifically interpreted Rule 11(a)(2) to bar a defendant’s challenge that

evidence was insufficient to support a conviction, absent a conditional plea that specified the issue

for preservation on appeal. For example, in United States v. Bahhur, 200 F.3d 917 (6th Cir. 2000),

the defendant argued that the statutory prerequisites necessary to sustain his conviction for a

prohibited monetary transaction in violation of 18 U.S.C. § 1957 were not met because he never

engaged in “a transaction involving a quantity of food stamp coupons in excess of $5,000.”3

 Id. at

922. Although the defendant characterized his objection as a jurisdictional one, the court held that,

in fact, it was a non-jurisdictional argument against the sufficiency of the government’s evidence

and was waived when the defendant failed to enter into a conditional plea reserving this issue for

appeal under Rule 11(a)(2). Id. at 923.

Similarly, in United States v. Turner, 272 F.3d 380 (6th Cir. 2001), the court found that a

defendant who was charged with violation of the Hobbs Act, through his guilty plea, waived his

right to argue that the government failed to produce an adequate basis upon which the court could

conclude the conspiracy to commit robbery affected interstate commerce. Id. at 383. Specifically,

the court noted that “[a]lthough the Hobbs Act’s interstate commerce element is commonly referred

to as a ‘jurisdiction element,’ the failure of the government to prove a nexus between the crime and
No. 06-5002 United States v. Martin Page 5

interstate commerce is not jurisdictional in a sense that it deprives the district court of subject matter

jurisdiction.” Id. at 390.

In the present case, Martin waived his right to appeal the sufficiency of the evidence

supporting his conviction by entering a guilty plea that did not reserve the issue for appeal. His

written Notice of reservation of right to appeal did not reserve this issue for appellate review; it only

reserved the right “to have an Appellate Court review the Adverse Determination and Decision

relative to the Motion to Suppress Evidence seized during the search of the residence at 1219

Greenup Street, Covington, Kentucky, filed [on] May 3, 2005.” As in Napier, Martin may have

reserved the right to appeal other issues, but he did not reserve the right to appeal the sufficiency of

the government’s evidence. See Napier, 233 F.3d at 399. 

The Interstate Commerce Nexus Is Not a Jurisdictional Issue

 Martin argues, however, that his conditional guilty plea did not waive his right to challenge

on appeal the insufficiency of evidence establishing that the gun upon which his felon-in-possession

charge was predicated traveled in, or affected, interstate commerce because this issue is a

jurisdictional one. However, case law does not support Martin’s position. Although Martin is

correct that his guilty plea did not waive jurisdictional defenses, his characterization of his challenge

in this case as “jurisdictional” is wrong.

Like the defendant in Bahhur, supra, Martin is actually attacking the sufficiency of the

government’s evidence, not the district court’s authority to have decided the case. See Bahhur, 200

F.3d at 922. Specifically, Martin is challenging the firearm’s nexus with interstate commerce.

However, as the Turner court noted, while courts frequently call the interstate commerce nexus

requirement a “jurisdictional element,” it is jurisdictional only in the sense that without that nexus

there can be no federal crime; it does not affect a court’s power to adjudicate a case. See Turner, 272 F.3d at 390. 

The Seventh Circuit considered this issue, albeit in the context of a different statute, and gave

this explanation:

[Defendant’s] argument rests on the concept that a guilty plea does not waive

jurisdictional defenses to the crime at issue. But the nexus with interstate commerce,

which courts frequently call the “jurisdictional element,” is simply one of the

essential elements of § 844(i). Although courts frequently call it the “jurisdictional

element” of the statute, it is “jurisdictional” only in the shorthand sense that without

that nexus, there can be no federal crime under the bombing statute. It is not

jurisdictional in the sense that it affects a court’s subject matter jurisdiction, i.e., a

court’s constitutional or statutory power to adjudicate a case, here authorized by 18

U.S.C. § 3231. This court has recognized for decades that, despite defendants’

tendency to confuse facts essential to be alleged as elements of the crime with

jurisdictional requirements arising as a matter of law, once a defendant pleads guilty

in a court which has jurisdiction of the subject matter and of the defendant, as did the

court in the instant case, the court’s judgment cannot be assailed on grounds that the

government has not met its burden of proving so-called jurisdictional facts. Even if

the government fails to establish the connection to interstate commerce, the district

court is not deprived of jurisdiction to hear the case.

United States v. Martin, 147 F.3d 529, 531-32 (7th Cir.1998) (citations and some internal

punctuation omitted); see also United States v. Robinson, 119 F.3d 1205, 1212 n.4 (5th Cir. 1997),

cert. denied, 522 U.S. 1139 (1998) (“[T]he commercial nexus element in the Hobbs Act is not

‘jurisdictional’ in the sense that a failure of proof would divest the federal courts of adjudicatory

power over the case. The commercial nexus requirement is in fact a substantive element of the
No. 06-5002 United States v. Martin Page 6

4

 18 U.S.C. § 922(g) provides, in pertinent part:

It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding

one year * * * to ship or transport in interstate or foreign commerce, or possess in or affecting

commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1).

The indictment here charges, 

On or about February 10, 2005, in Kenton County, in the Eastern District of Kentucky, Kenneth

Martin, having been convicted in a court of a crime punishable by imprisonment for a term exceeding

one year, did knowingly possess in and affecting commerce a firearm, that is an Interarms, Walther

PPK, .380 caliber, semiautomatic pistol, all in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1).

5

 In fact, two other motions -- a motion for disclosure of audio and video tapes and a motion to preserve

evidence -- were also addressed in the district court’s same sealed order. See 7/19/05 Sealed Memorandum Opinion and

Order, pp. 1-2; 6.

crime.”); United States v. Hassan, 230 F.3d 1360, 2000 WL 1477967, *2 (6th Cir. 2000)

(unpublished) (interstate commerce element in statute prohibiting the use or trafficking in counterfeit

access devices, 18 U.S.C. § 1029, is “not jurisdictional in a sense that it affects a court’s subject

matter jurisdiction, i.e., a court’s constitutional or statutory power to adjudicate a case”).

To successfully challenge the district court’s jurisdiction, a defendant who enters a guilty

plea must establish that the face of the indictment failed to charge the elements of a federal offense.

Turner, supra, 272 F.3d at 389-90; Mack v. United States, 853 F.2d 585, 586 (8th Cir.1988). Martin

makes no argument that the face of the indictment failed to charge the elements of a federal offense.

This is not surprising as the indictment in the present case clearly included all of the requisite

elements of 18 U.S.C. § 922(g)(1).4 Indeed, through his guilty plea, Martin admitted to the

propriety of the court’s jurisdiction. See Turner, at 390; United States v. Mathews, 833 F.2d 161,

164 (9th Cir.1987) (a guilty plea admits factual allegations in the indictment that form the basis for

federal jurisdiction).

Based upon the foregoing discussion, we conclude that Defendant has waived his right to

challenge in this appeal the interstate commerce nexus or any other aspect of the sufficiency of the

evidence supporting his conviction.

B. MARTIN LIKEWISE WAIVED THE RIGHT TO APPEAL THE DISTRICT COURT’S

DENIAL OF HIS MOTION TO DISCLOSE THE CONFIDENTIAL INFORMANT’S

IDENTITY.

This analysis of waiver applies with equal force to Martin’s challenge of the district court’s

denial of his motion to disclose the identity of the confidential informant. Martin, however, argues

that he has not waived his right to obtain review of this issue on appeal because he reserved in

writing for appeal the issue of his motion to suppress “within days” of filing the motion to disclose

the identity of CI, and the court’s sealed Memorandum Opinion and Order addressed both motions.5

However, as indicated above, the procedural rule permitting the defendant to enter a conditional plea

of guilty while reserving the right, on appeal, to review an adverse determination of any specified

pretrial motions imposes “an affirmative duty on the defendant to preserve all potential collateral

challenges through the preservation mechanism of Rule 11(a)(2).” Pickett, 941 F.2d at 416

(emphasis in original). Furthermore, Rule 11(a)(2) explicitly requires that, when entering a

conditional plea, the reservation of a right to appeal a specified motion be in writing. Fed. R. Crim.
No. 06-5002 United States v. Martin Page 7

6

 The relevant portion of the plea hearing transcript is as follows:

THE COURT: Mr. Martin, your attorney has notified the Court that it’s your intention to enter a conditional

plea of guilty to the charge in the Indictment, is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: So in your notice, Mr. Cox, you are preserving your right to appeal the Court’s adverse

decision on your motion to suppress evidence, is that correct?

MR. COX [Defendant’s counsel]: Yes, sir. That’s correct, Your Honor.

* **

THE COURT: Now, the conditional nature of the plea is that, I take it, Mrs. Voorhees, that the

firearm which is alleged in the indictment was found during the execution of the search warrant, is that

right?

MS. VOORHEES [AUSA]: That’s correct, Your Honor.

THE COURT: In fact, if the Sixth Circuit, which is the Appellate Court over in Cincinnati, Mr.

Martin, determines that I incorrectly denied your motion to suppress, in that event, you would be able

to -- the case would be remanded to me and you would be permitted to withdraw your guilty plea.

That’s what a conditional plea is. You understand that?

THE DEFENDANT: Yes.

[9/22/05 Plea Hearing Tr. pp. 2, 8].

P. 11(a)(2). Despite this affirmative duty, Martin did not provide a written reservation of the issue

of the CI’s identity for appeal.

 Nor does the transcript of Martin’s plea hearing give any indication that he specifically

reserved this issue for appeal. See Ormsby, 252 F.3d at 948 n.3; United States v. Yasak, 884 F.2d

996, 1000 (7th Cir. 1989) (finding that a defendant did not waive his right to appeal the district

court’s denial of his motion to dismiss despite the lack of a writing reserving his right to appeal the

issue where the plea hearing transcript plainly shows that both parties agreed to the conditional plea,

that the district court accepted the plea, and that the court understood its ruling on Yasak’s motion

to dismiss was the specific (and dispositive) issue for appeal). The transcript of Martin’s plea

hearing in this case, however, makes clear that the only issue preserved for appeal was the denial

of Martin’s Motion to Suppress.6

For the foregoing reasons, we find that Martin has failed to reserve the right to appeal the

denial of his motion to disclose the identity of the confidential informant.
No. 06-5002 United States v. Martin Page 8

C. THE TRIAL COURT DID NOT ERR IN DENYING MARTIN’S MOTION TO

SUPPRESS EVIDENCE.

As indicated, the one issue specifically preserved for appeal by Martin was the district

court’s denial of his motion to suppress evidence seized during the search of his residence. The

search was conducted pursuant to a search warrant issued by a Kentucky state court judge.

In denying Defendant’s Motion to Suppress, the district court determined that there had been

sufficient probable cause for the issuance of the warrant notwithstanding Martin’s complained of

paucity of detail in the warrant affidavit regarding the information provided by the confidential

informant and the lack of any information in the affidavit regarding Defendant’s previous

girlfriend’s romantic relationship ten years earlier with Jim Liles, the Director of the NKDSF.

The district court’s factual findings on a motion to suppress are reviewed for clear error and

its legal determinations are reviewed de novo. United States v. Frazier, 423 F.2d 526, 531 (6th Cir.

2005). A finding of probable cause is a legal conclusion that we also review de novo. United States

v. Padro, 52 F.3d 120, 122 (6th Cir. 1995). However, the evidence must be viewed in a light most

likely to support the decision of the district court. Frazier, supra; United States v. Heath, 259 F.3d

522, 528 (6th Cir. 2001).

The Fourth Amendment provides, in pertinent part, that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation. . . .” U.S. Const. amend. IV. Probable cause is

described as a fair probability -- not an absolute certainty -- that evidence of the crime will be found

at the location. Illinois v. Gates, 462 U.S. 213, 238 (1983). This court reviews the determination of

probable cause made by the judge issuing the warrant with “great deference” and will reverse the

decision only if it is arbitrarily made. United States v. Johnson, 351 F.3d 254, 258 (6th Cir. 2003).

Our inquiry requires the review of the totality of the circumstances “to make a practical, commonsense,” not hyper-technical, determination of whether probable cause is present. Gates at 238. Under

the totality of the circumstances approach, our task is to assess the adequacy of all the circumstances

set forth in the affidavit, including the veracity and basis of knowledge of a confidential informant,

id. at 230, as well as law enforcement’s corroboration of the informant’s tip. United States v. Smith, 182 F.3d 473, 478 (6th Cir. 1999); McCray v. Illinois, 386 U.S. 300, 304 (1967) (stating that

information provided by a proven and reliable informant, along with police corroboration of the tip,

is sufficient to establish the necessary probable cause).

In United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996), we recognized that two factors that

are critical in determining whether an affidavit based on a confidential informant’s tip provides a

substantial basis for finding probable cause: (1) an explicit and detailed description of alleged

wrongdoing; and (2) corroboration of the tip through the officer’s independent investigative work.

Id. at 1377. However, an affidavit is not insufficient merely because it lacks explicitness of detail

and every statement is not corroborated. “The affidavit is judged on the adequacy of what it does

contain, not on what it lacks, or on what a critic might say should have been added.” United States

v. Allen, 211 F.3d 970, 975 (6th Cir.), cert. denied, 531 U.S. 907 (2000).

Applying the foregoing authorities in the present case, it is clear that the district court did

not err in denying Martin’s motion to suppress evidence. Martin argues the affidavit information

did not supply probable cause because it lacked explicit detail of the informant’s basis of knowledge.

In doing so, Martin relies heavily on Weaver, supra, 99 F.3d 1372. However, Martin’s reliance on

Weaver is misplaced. Although Weaver certainly leaves little room for an issuing judge to rely on

a generous interpretation of facts recited in a preprinted form containing boilerplate language, it was

never intended to set a stricter standard than that established in Gates. See Smith, 182 F.3d at 484.

It is the totality of the circumstances that determines whether the instant affidavit was in fact “bare

bones” or sufficient to establish probable cause. See Allen, 211 F. 3d at 975.
No. 06-5002 United States v. Martin Page 9

Assessing the contents of the instant affidavit under the totality of the circumstances shows

that information contained therein provided a substantial basis from which the judge could conclude

that probable cause existed. With respect to veracity, Agent Honaker’s affidavit states that the

confidential informant in the present case is a known person who, unlike in Weaver, previously

provided information that resulted in seizure of illegal controlled substances. See Weaver, 99 F.3d

at 1379. This assertion is sufficient to establish the informant’s reliability. See United States v.

Greene, 250 F.3d 471, 480 (6th Cir.2001) (holding that “the affiant need only specify that the

confidential informant has given accurate information in the past to qualify as reliable”); United

States v. Smith, 182 F.3d 473, 483 (6th Cir.1999) (“[I]f the prior track record of an informant

adequately substantiates his credibility, other indicia of reliability are not necessarily required.”).

As we held in United States v. May, 399 F.3d 817 (6th Cir. 2005), it is sufficient if the agent’s

affidavit states only that the “‘cooperating source has provided assistance in unrelated drug

investigation cases.’ The affidavit need not include a detailed factual basis for [the affiant’s]

statement in order to support the judge’s finding of probable cause.” Id. at 826.

Moreover, an independent police investigation corroborated the reliability of the confidential

informant’s information. See Gates, supra, 462 U.S. at 242 (weak factual information may be

bolstered if the authorities undertook probative efforts to corroborate an informant’s claims through

independent investigation). The confidential informant’s minimal facts here were bolstered when

the trash pull yielded cocaine residue. Also, Martin’s criminal history revealed that he had been

convicted of four counts of trafficking cocaine and possession of marijuana on two occasions. The

independent corroboration conducted by the police, therefore, provided other indicia of reliability

such that the absence of an “explicit and detailed statement of alleged wrongdoing” is not critical

and, under the totality of the circumstances, provides sufficient basis for establishing probable cause.

See id. at 237-38, 243-44.

Martin also argues that Agent Honaker’s affidavit is deficient because it did not contain

certain facts that, in Martin’s view, might have dispelled probable cause and should have warranted

a Franks hearing. However, Martin has failed to offer any evidence showing that the omissions

were made intentionally or with reckless disregard for the truth. He merely asserts that the affidavit

omitted information about NKDSF Director Liles and Martin’s ex-girlfriend and posits that if

included, that information could have dispelled probable cause. Such a bare assertion of

possibilities, however, is not enough to warrant a Franks hearing. See Franks, 438 U.S. at 171

(holding that “[t]o mandate an evidentiary hearing. . . there must be allegations of deliberate

falsehood or of reckless disregard for the truth. . . accompanied by an offer of proof”).

For all of the foregoing reasons, we find that the district court properly denied Martin’s

motion to suppress the evidence seized during the execution of the search warrant.

D. THE DISTRICT COURT DID NOT ERR IN DETERMINING THAT MARTIN’S

PRIOR CONVICTIONS SUBJECTED HIM TO SENTENCING AS AN ARMED

CAREER CRIMINAL.

The standard of review of the district court’s legal sentencing decisions is de novo. United

States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005). However, where the inquiry turns upon the

determination whether the defendant’s prior convictions are distinct criminal episodes that should

be counted separately under statutory provisions, the standard of review is clear error. United States

v. Powell, 404 F.3d 678, 682 (2nd Cir. 2005); United States v. Rice, 43 F.3d 601, 606 (11th Cir.

1995).

Generally, a defendant convicted of being a felon-in-possession of a firearm pursuant to 18

U.S.C. § 922(g) is sentenced to between zero and ten years in prison. 18 U.S.C. § 922(g). However,

a defendant convicted under § 922(g) can receive an enhanced sentence under the Armed Career
No. 06-5002 United States v. Martin Page 10

7 Cf., United States v. Murphy,107 F.3d 1199, 1210 (6th Cir. 1997) (holding that robberies of two residences

in the same duplex did not constitute separate offenses because the defendant “never left his original location, he never

ceased his original conduct and he never successfully escaped the site of the first crime until the second was complete”);

United States v. Graves, 60 F.3d 1183, 1187 (6th Cir. 1995) (holding that because the defendant had not yet left the

location of the burglary when he committed the assault within minutes of the burglary, those two offenses were part of

the same criminal episode).

Criminal Act (the “ACCA”). The ACCA provides, in pertinent part, that a person who is a felon-inpossession of a firearm in violation of 18 U.S.C. § 922(g) and who has “three previous

convictions. . . for a violent felony or a serious drug offense. . . committed on occasions different

from one another. . . shall be. . . imprisoned for not less than fifteen years.” 18 U.S.C. § 924(e)(1).

For purposes of designating an Armed Career Criminal, a “violent felony” is “any crime punishable

by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or

threatened use of physical force against the person of another,” or “is burglary. . . or otherwise

involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B). A “serious drug offense” is defined to include “an offense under State law,

involving manufacturing, distributing, or possessing with intent to distribute, a controlled substance

for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.

§ 924(e)(2)(A)(ii). 

Under this statute, the sentencing court is required to look to current state law, not the state

law at the time of the previous conviction, to determine whether the defendant could have been

sentenced to ten years’ imprisonment. See United States v. Morton, 17 F.3d 911, 915 (6th Cir.

1994). In Morton, for example, the defendant appealed his sentence enhancement under the ACCA

for having three prior serious drug offense convictions. Id. The court found that “[a]t the time

defendant was being sentenced. . . the State of Tennessee did not consider less than .5 grams, when

the defendant has no more than one prior felony conviction, serious enough to impose a ten-year

sentence.” Id. Therefore, the Morton court held that the defendant’s Range I convictions for selling

less .5 grams did not constitute serious drug offenses as defined by the ACCA. Id.

In this case, Martin argues that his ACCA sentence enhancement was improper because his

prior four state felony drug offenses for trafficking in controlled substances on March 1, 1994,

March 8, 1994, March 23, 1994, and May 12, 1994, all occurred in Kenton County, Kentucky, and

were “related” offenses because they were contained in a single indictment, consolidated in his plea

agreement, and resulted in concurrent sentences.

To be sure, to trigger a sentence enhancement under the ACCA, a defendant’s prior felony

convictions must involve separate criminal episodes. United States v. Hughes, 924 F.2d 1354, 1361

(6th Cir. 1991). However, offenses are considered distinct criminal episodes if they “occurred on

occasions different from one another.” United States v. Roach, 958 F.2d 679, 684 (6th Cir.), cert.

denied, 506 U.S. 845 (1992). Two offenses are committed on “occasions different from one

another” if it is possible to discern the point at which the first offense is completed and the second

offense begins. United States v. Hill, 440 F.3d 292, 297 (6th Cir. 2006). 

For example, in United States v. Brady, 988 F.2d 664 (6th Cir. 1993), notwithstanding that

two armed robberies were committed on the same day, we found them to be separate offenses under

the ACCA where the initial robbery at the beauty shop had concluded, and the defendant had left

the establishment before he entered the bar to commit the second robbery. Id. at 669. Similarly, in

United States v. Carnes, 309 F.3d 950 (6th Cir. 2002), cert. denied 537 U.S. 1240 (2003), we held

that the defendant’s two previous convictions for burglary were not a single criminal episode

because he had completed the burglary of the first residence before he entered the second residence

to burglarize it such that it was “possible to identify an endpoint between the two offenses.” Id. at

956.7
No. 06-5002 United States v. Martin Page 11

Furthermore, “[t]he relevant factor for determining the number of predicate offenses under

the ACCA is not the date of conviction for those predicate offenses, but the date that the defendant

committed the offense for which he is subsequently convicted.” Roach, 958 F.2d at 683. Thus, in

Roach, for purposes of determining whether the defendant committed the requisite number of prior

offenses for sentence enhancement under the ACCA, we found immaterial the fact that two or more

of the defendant’s convictions stemmed from the same indictment. Id. Consequently, we held that

three convictions on the same date did not constitute a single criminal episode even where the three

drug-trafficking sales giving rise to the convictions were not separated by any other intervening

convictions and occurred within only a matter of days. Id. Likewise, in United States v. Warren, 973 F.2d 1304 (6th Cir. 1992), this Court held immaterial for ACCA enhancement purposes the fact

that offenses were consolidated for sentencing or for concurrent sentences, even though such

consolidation could be relevant under the otherwise applicable Sentencing Guidelines, so long as

the separate offenses for which the defendant was convicted occurred at different times and/or

places. Id. at 1310. 

In addition, prior crimes are predicate offenses under the ACCA if, notwithstanding the

number of victims, it would have been possible to cease the criminal conduct after the first offense

without committing the second offense. In Brady, for example, we held “offenses committed by a

defendant at different times and places and against different victims, although committed within less

than an hour of each other,” should be separate predicate convictions under the ACCA, because the

defendant could have decided one robbery “was enough for the evening” and left without

committing the second robbery. Brady, 988 F.2d at 669. Similarly, in United States v. Wilson, 27

F.3d 1126 (6th Cir.), cert. denied, 513 U.S. 976 (1994), we held that two criminal sexual conduct

offenses on the same date in the same house but against separate victims on different floors and

locations within the house constituted separate offenses for ACCA purposes. Id. at 1131. We

specifically noted in Wilson that the defendant could have stopped his criminal rampage, but instead

chose to continue it, selecting different victims in different, separate places. Id. See also Hill, 440

F.3d 298 (holding that two robberies on the same day were separate predicate offenses under the

ACCA where the defendant, after completing the first burglary, “could have ceased his criminal

activity at that point” before he crossed the street to commit a second robbery).

Applying the foregoing authorities in this case, it is clear that Martin’s four prior state felony

drug convictions arose from separate criminal episodes. The underlying offenses occurred several

days apart. That the offenses were ultimately charged in one indictment and consolidated for plea

purposes is irrelevant. Similarly irrelevant is the fact that Martin’s sentences on these convictions

ran concurrently.

Martin also argues that the district court erred in finding that his predicate offenses qualify

as serious drug offenses sufficient to satisfy the ACCA. Martin contends that his prior convictions

do not qualify as serious drug offenses because the maximum prison term under Kentucky state law

for Class C felonies is not “ten years or more” as required by the ACCA, but rather is “not less than

five(5) years nor more than ten (10) years. Ky. Rev. Stat. Ann. § 532.060. Specifically, Martin

submits that the Class C felony statutory term of imprisonment of “not less than five (5) years nor

more than ten (10) years” is exclusive of ten years. Thus, he claims he should not have been subject

to the ACCA enhancement.

Case law and logic do not support Martin’s argument. Martin admits that he has four

Kentucky state convictions of Class C felonies for trafficking drugs. As indicated, under current
No. 06-5002 United States v. Martin Page 12

8

 In Kentucky, felonies are classified for purposes of sentencing into five categories: Class D, Class C, Class

B, Class A. Ky. Rev. Stat. Ann. § 532.010. The authorized terms of imprisonment are as follows: Class D, not less than

one year nor more than five years; Class C, not less than five years nor more than ten years; Class B, not less than ten

years nor more than twenty years; Class A, not less than twenty years nor more than fifty years. Ky. Rev. Stat. Ann.

§ 532.060. 

9 See also, Smith v. Commonwealth, 2006 WL 73728 at * 1 (Ky. App. 2006) (affirming jury conviction of

defendant for Class C felony of trafficking in a controlled substance and sentence of ten years’ imprisonment); Sparks

v. Commonwealth, 2006 WL 2451732 at * 1-2 (Ky. 2006) (affirming defendant’s ten year prison sentence for Class C

felony of trafficking in a controlled substance); Carpenter v. Commonwealth, 2003 WL 21949109 at * 1 (Ky. App. 2003)

(affirming defendant’s sentence enhancement for being a persistent felony offender, which elevated the sentence from

a Class C felony with a maximum sentence of ten years to a Class B felony, subjecting him to twenty years in prison);

Ky. Prac. Substantive Crim. L. § 1:7 (2007) (stating that “[t]he authorized maximum term of imprisonment for felonies

is ... 5 to 10 years for Class C felonies”).

10 Additionally, Martin’s argument fails the common sense test. Martin submits that, because under Kentucky

law a Class C felony is considered less serious than a Class B felony, a Class C sentence of “not more than ten years”

does not encompass the same ten year sentence of a Class B sentence of “not less than ten.” Despite Martin’s argument,

he provides no authority to support this position. Instead, Martin relies on “common sense” to tell him that “nor more

than ten years” does not include ten years. However, ten years is by definition both “not more than ten years” and “not

less than ten years.” The adjective phrase “more than” “serves as a quantifier meaning greater in size or amount.”

www.dictionary.com. The phrase does not, however, exclude the amount specified. See The Compact Edition of the

Oxford English Dictionary 1851, Vol. I (1987) (defining “more” as “[a]dditional to the quantity or number specified or

implied; an additional amount or number of”). And, when coupled with the adjective “not” the phrase is negated, to wit:

not additional to the quantity or number specified. Consequently, and not surprisingly, the district court properly ruled

that “not more than ten years” includes ten years.

Kentucky law, Class C felonies carry a maximum sentence of “not less than five (5) years nor more

than ten (10) years.” Ky. Rev. Stat. Ann. § 532.060.8

 Notwithstanding Defendant’s protestations, Kentucky courts consider a Class C felony

serious enough to impose sentences of ten years and have consistently done so. See Johnson v.

Commonwealth, 105 S.W.3d 430 (Ky. 2003) (defendant convicted of class C felony and sentenced

to “the maximum of ten years imprisonment.”).9

 Moreover, albeit in an unpublished opinion, this

Court has already found that, under Kentucky law, “[a] Class C felony is punishable by five to ten

years’ imprisonment” and qualifies as a “serious drug offense” under the ACCA. United States v.

Tolley, 173 F.3d 431, 1999 WL 137620 at * 10 (6th Cir.) (unpublished), cert. denied, 528 U.S. 898

(1999).

The foregoing makes clear, therefore, that Martin’s Class C felonies were separate and

distinct “offense[s] under state law, involving . . distributing. . . a controlled substance for which the

maximum term of imprisonment of ten years or more is prescribed by law” that supported his

qualification for sentencing as an armed career criminal. See 18 U.S.C. § 924(e)(2)(A)(ii).10

E. THE DISTRICT COURT DID NOT VIOLATE THE CONSTITUTION BY FINDING

MARTIN’S PRIOR CONVICTIONS QUALIFIED AS SERIOUS DRUG OFFENSES

TO ENHANCE HIS SENTENCE AS A CAREER CRIMINAL.

The standard of review is de novo for a constitutional challenge to a sentence. Hill, 440 F.3d

at 298. 

Generally, the district court exercises discretion in sentencing a defendant. United States v.

Booker, 543 U.S. 230, 233 (2005). The Constitution imposes limits, however, on the factors a judge

may consider, Blakely v. Washington, 542 U.S. 296, 308 (2004), and mandates that decisions to

increase the statutory maximum penalty be based solely on facts admitted by the defendant or

proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). However,
No. 06-5002 United States v. Martin Page 13

a judge is permitted to find, based on the preponderance of the evidence, the fact of a prior

conviction. United States v. Almendarez-Torres, 523 U.S. 224, 235 (1998). In Apprendi and its

progeny, the Supreme Court has uniformly excepted “the fact of a prior conviction” from its general

rule that sentence-enhancing facts must be found by a jury and proved beyond a reasonable doubt.

See Booker, 543 U.S. at 244; Apprendi, 530 U.S. at 490. Citing this distinction between prior

convictions and other sentence-enhancing factors, we have held that a district court does not violate

the Sixth Amendment by determining the fact and nature of a defendant’s prior convictions and

using these findings to impose an increased sentence under the Armed Career Criminal Act. See

United States v. Barnett, 398 F.3d 516, 524-25 (6th Cir.), cert. denied, 542 U.S. 1163 (2005); United

States v. Beasley, 442 F.3d 386, 391 (6th Cir. 2006). Martin argues that certain statements in

Shepard v. United States, 544 U.S. 13 (2005), suggest that Almendarez-Torres is no longer good

law. However, the continued viability of Almendarez-Torres is not for this Court to decide. “Unless

and until the Supreme Court takes the next step, [this Court is] bound to follow its current statement

of the law on this subject.” Beasley, 442 F.3d at 392 n. 3 (specifically rejecting the contention that

the plurality and concurring opinions in Shepard have undermined this Circuit’s ruling in Barnett).

See also United States v. Alfaro, 408 F.3d 204, 211 (5th Cir.), cert. denied, 546 U.S. 911(2005)

(“Almendarez-Torres has not been overruled and is still good law.”).

Thus, it is clear that there is nothing in controlling Supreme Court or Sixth Circuit precedent

that supports Martin’s contention that the district court violated his constitutional rights by

increasing his sentence under the ACCA. 

IV. CONCLUSION

 For all of the foregoing reasons, we AFFIRM the conviction and sentence imposed by the

district court.