## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-1347

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. James Alton Turner, Jr., *
* Defendant - Appellant. *

___________ Submitted: October 12, 2005 Filed: December 15, 2005 (corrected 12/20/05)

___________ Before ARNOLD, BOWMAN, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.

James Alton Turner, Jr. pled guilty to possession with intent to distribute marijuana within 1,000 feet of a school afte r a prior felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 851, and 860, and to possession of a firearm as an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Under his plea agreement he preserved his right to seek to suppress evidence and to appeal an adverse ruling by the court. The district court denied his motion to suppress and sentenced him to 210 months. Turner app eals, arguing that the district court erred in denying his motion and in sentencing. We affirm.-2- Waterloo police were told by a confiden tial informant on February 2, 2004, that Turner was selling marijuana from his re sidence and from the New World Lounge Bar in Waterloo, Iowa. Sergeant Richard Knief went to the bar to investigate, saw that Turner was present, and attempted contact with him. When Turner instead moved to leave the bar, he was arrested for interferi ng with official acts. Knief observed an intense marijuana smell emanating from Tu rner, and the officers found a large sum of money on him in amounts consistent with drug proceeds. With the confidential informant's tip in mind, they asked Turner for permission to search his house but he declined.

Officer Adam Galbraith then prepared an application for a search warrant for Turner's house. His supporting affidavit st ated that Sargent Knief had advised him that he had received information from a c onfidential informant who had seen Turner at the New World Lounge with a package of marijuana prep ared for sale and who also reported that Turner had sold marijuana from his residence within the last 72 hours. Galbraith stated in addition that Lakisha and Quanisha Owens had admitted to officers in the spring of 2003 that Turner was their marijuana supplier. The affidavit included statements relating to Knief's encounter withTurner at the bar, reported that he had smelled an intense marijuana odor on Turner , that Turner had attempted to evade contact with him, and that Turner had po ssessed a large quantity of cash in suspicious amounts. Other information learned by th e police was listed, including that the utilities at 2303 Clearview Street in Waterloo we re listed in Turner's name, that Turner had previously listed this address as his resi dence during prior arrests, that the vehicle registered to him had been seen at this re sidence, and that Turner had previously been arrested for possession of marijuana and possession of cocaine.

An informant attachment to the affi davit was prepared by Sergeant Knief, stating that the confidential informant was a mature individual with a reputation for truthfulness and no motive to falsify information, that the informant had previously1 The Honorable John A. Jarvey, United States Magistrate Judge for the Northern District of Iowa.
-3- provided information leading to an arrest, and that the current information had been corroborated by law enforcement personnel.

The application was taken on the same ev ening to an Iowa district court judge who issued a search warrant. Officers then executed the warrant and searched Turner's house. They seized a brown suitcase containing a plastic bag with approximately 1,162.5 grams of marijuana and a Sunbeam digital scale. They also found mail addressed to Turn er and a handgun under his bed with a loaded magazine.

Turner moved to suppress the evidence obtained at his residence, arguing that the issuance of the warrant infringed upon his constitutional rights because it was issued without probable cause. He argued that the warrant application incorrectly stated that he had attempted to evade arrest at the New World Bar and that at the time of the arrest he had in his possession a suspicious quantity of bills. He also complained that the warrantless arrest viol ated his constitutional rights and that the contents of the attachment regarding the confidential informant's veracity was false and that Sergeant Knief knew that when he attested to it. For purposes of the probable cause determination, the government agreed to excise the informant attachment and the evidence obtained at the New World Lounge except for Knief's observation of the marijuana odor emanating from Turner. Th e government also indicated it would not assert a good faith reliance on the warrant under United States v. Leon , 468 U.S. 897 (1984).

A magistrate judge 1 presided at the suppression h earing and issued a report and recommendation to the district court to deny the motion. The magistrate judge concluded that probable cause was estab lished by the remaining portions of the warrant affidavit, noting that it containe d personal observations from a confidential2 The Honorable Linda R. Reade, United St ates District Judge for the Northern District of Iowa, presiding.
-4- informant whose information had been i ndependently corroborated by authorities, as well as Quanisha and Lakisha Owens' report that Turner had supplied them with marijuana and information about Turner's previous arrests for possession of marijuana and cocaine. The report a nd recommendation was adopted by the district court, 2 which denied Turner's motion.

Turner had meanwhile pled guilty to both counts charged in the indictment – possession of marijuana within 1,000 feet of a school after a prior drug felony offense and possession of a firearm as an armed career criminal – conditioned on his right to appeal from an adverse ruling on his suppression motion. In his plea agreement he also agreed that he had four previous convictions for crimes of violence and/or controlled substance offenses as define d in USSG § 4B1.1, the career offender guideline, and that he qualif ied as an armed career criminal under 18 U.S.C. § 924(e) because of the same four offenses. Hi s signed agreement listed the four qualifying offenses as a 1986 felony conviction for burglary in the second degree, two 1987 felony convictions for robberies in the second degree while armed with a dangerous weapon, and a 1991 felony conviction for posse ssion of crack cocaine with the intent to deliver.

In the plea agreement the parties set out their own nonbinding guideline calculations. Turner agreed that he would be subject to an adju sted offense level of 32 if he qualified as a career offender under USSG § 4B1. 1, but he hoped to receive a two level downward adjustment for acceptan ce of responsibility. Turner also agreed that he qualified as an armed career criminal under U.S.C. § 924(e), making him subject to increased penalties on the gun c ount under USSG § 4B1.4 and an adjusted offense level of 34. The parties agreed that a two level downward adjustment for3 The Honorable Mark W. Bennett, Chief Judge for the United States District Court for the Northern District of Iowa, presiding.

4 Turner filed a supplemental pro se brief discussing these and other points. His additional claims lack merit, including a claim that the warrant was invalid because the application had not reported that a sear ch of his residence in September 2003 had revealed nothing illegal. Any claim for in effective assistance of counsel should be brought by motion under 28 U.S.C. § 2255 rather than on direct appeal.
-5- acceptance of responsibility would also be appropriate on this count, resulting in a total offense level of 32. They stipulated to concurrent sentences.

The district court 3 sentenced Turner after orally stating that his total offense level for each offense was 32, which togeth er with a criminal history category VI yielded a guideline range of 210 - 262 months. It noted that the statutory maximum for the drug conviction was 240 months and the statutory minimum for the firearm conviction was 180 months. Although Turner had stipulated in the plea agreement that he qualified as an armed career criminal, the district court considered his argument at sentencing that he had not b een convicted of three requisite predicate offenses. It then determined that his two 1987 robberies and his 1991 drug offense were predicate offenses within the mean ing of U.S.C. § 924(e) and USSG § 4B1.4. It sentenced Turner both as a career o ffender and an armed career criminal and imposed concurrent sentences of 210 months on each count.

Turner argues on appeal that the redacted warrant application lacked probable cause, that the court erred by sentencing him as an armed career criminal, and that he is entitled to resenten cing because the district court e rroneously calculated his adjusted offense level for the drug conviction. 4 The United States responds that the confidential informant's tip was sufficiently corroborated to establish probable cause. It maintains that the district court correc tly found Turner was an armed career criminal because he pled guilty as an armed career criminal and had actually been convicted of four qualifying offenses and that any e rror in calculating his guideline range for his-6- drug conviction was harmless b ecause he received two concu rrent sentences of equal length.

Turner claims that his Fourth Ame ndment rights were violated by a search under an invalid warrant. He contends that the district court erred by not suppressing the evidence from the search of his residence because the information used to establish probable cause for the warrant was not inde pendently reliable and was not sufficiently corroborated. He argues that information supplied by the Owens sisters nearly one year before the warrant application was st ale and should not have been considered on the issue of probable cause. He also asserts that his prior arrests without conviction should not have been included in the affidavit.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, agains t unreasonable searches and seizures," and it requires a showing of probable cause to support a search warrant. A court's determination of whether probable cause exists to support a warrant requires a consideration of the totality of th e circumstances, Illinois v. Gates , 462 U.S. 213, 230 (1983), and a warrant is supported by probable cau se if "there is a fair probability that contraband or evidence of a crime will be found in the place to be searched." Id. At 236. When a search warrant application ha s been redacted as in this case, the sufficiency of the warrant affidavit is ev aluated without the redacted information. United States v. Coleman , 349 F.3d 1077, 1083 (8th Cir. 2003) . We review a district court's factual findings for clear error and its conclusion that a search did not violate the Fourth Amendment de novo. United States v. Newton , 259 F.3d 964, 966 (8th Cir. 2001).

Since the entire informant' s attachment had been redacted,"some independent verification [was needed] to establish the reliability of the information" supplied by the informant. United States v. Taylor , 106 F.3d 801, 803 (8th Cir. 1997). Police officers developed additional information through their independent investigation-7- which corroborated the informant's story about having seen Turner with drugs at a local bar and selling multiple bags at his residence. They verified that the informant had provided Turner's correct address by examining utility records and by observing his registered vehicle at that lo cation. United States v. Ketzeback , 358 F.3d 987, 992 (8th Cir. 2004). Sergeant Knief also sme lled an intense odor of marijuana emanating from Turner during his encounterwith him at the bar, See United States v. Caves , 890 F.2d 87, 90 (8th Cir. 1989), but Turner argue s that the officer's sensory impression is of limited value. Turner points out that Kn ief sensed the smell at a public bar rather than in an automobile like in Caves or while smelling an exterior air vent like in United States v. Gerard , 362 F.3d 484 (8th Cir. 2004). Regardless of the place where Sergeant Knief encountered Turner, his st atement that Turner smelled strongly of marijuana supports the probable cause determination.

Turner complains that the information provided by Quanisha and Lakisha Owens in the spring of 2003 was stale and notrelevant on the issue of probable cause in February 2004 because too much time had pa ssed. "There is no bright line test for determining when information is stale." United States v. Koelling , 992 F.2d 817, 822 (8th Cir. 1993). Probable cause "cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit." Id. The Owens sisters told authorities that Turner had supplied them with marijuana and that he was a marijuana dealer. Th eir admissions remained relevant to the probable cause determination because their in formation was similar to the confidential informant's report, making it more proba ble that illegal drugs could be found at Turner's residence. Given all of the circum stances set forth in the redacted affidavit, but excepting Turner's drug related arrests, we conclude that there was probable cause that illegal drugs would be found at Turner's residence. The district court did not err in denying the motion to suppress.

Turner also contends that he is entitled to resentencing because the district court sentenced him under the Armed Career Criminal Act (the Act), 18 U.S.C.-8- § 924(e), and because the court erred by incorrectly calculating the total offense level for his drug conviction.

A defendant qualifies as an armed career criminal if he has three prior convictions for a "violent felony or a serious drug offense." 18 U.S.C. § 924(e). Turner admits that his 2001 conviction for possessing cocaine is a predicate offense for treatment as an armed career crimin al, but he argues that his 1986 burglary conviction was not a violent felony and thathis 1986 robberies should be treated as one offense rather than two. According to him, he has only two predicate offenses and the district court erred in treating the r obberies as separate offenses. 18 U.S.C. § 924(e). We review a district court's factual determinations for clear error and its legal conclusions de novo. United States v. Deroo , 304 F.3d 824, 828 (8th Cir. 2004).

Offenses are separate convictions under 18 U.S.C. § 924 if they were "committed on occasions different from one another," and if they ar ose out of separate and distinct criminal episodes. United States v. Hammell , 3 F.3d 1187, 1191 (8th Cir. 1993). During Turner's robberies in August 1986, he threatened different victims with a sawed off shotgun. Both robberies were committed to raise money to pay off his drug debt to Herbie Speller, Jr., who also participated in the holdups. On August 16 Turner entered a Texaco gas station in Waterloo with his shotgun and ordered the attendant to put money in a paper bag and then locked hi m in the trunk of his own car; the clerk managed to escape by pushing out the back seats of the car. Three days later Turner held up Saylor's South Side Mart in Hudson, Iowa and then forced two employees into the trunk of one of their vehicles; they escapedwhen people heard them pounding and called authorities.

Turner argues that the two convictions should be treated as a single offense because he employed the same modus operandi with the sa me confederate and similar motive. He claims that th e state treated the offenses as one because he had been arrested for both on the same date, one prosecutor handled both, his motions were-9- considered in the same hearing, and he was sentenced for both on October 5, 1986. He admits that the state never entered a fo rmal order of consolidation but asserts that a functional analysis should be adopted becau se the Iowa Rules of Criminal Procedure do not contain a consolidation provision. See e.g. Buford v. United States , 532 U.S. 59, 61 (2001).

The government responds that the offenses were sufficiently distinct to be considered as separate criminal episodes. It points out that the robberies occurred in different cities, that they i nvolved different victims, and that they were separated by three days. See United States v. Long , 320 F.3d 795, 802 (8th Cir. 2003). The government asserts that "[s]ection 924(e) doe s not require separate prosecutions, just that the offenses occurred at differe nt times," United States v. Gibson , 928 F.2d 250, 254 (8th Cir. 1991), so factors such as a combined motion hearing and concurrent sentences are not determinative.

We agree that the district court di d not err by finding the robberies to be separate offenses and by sentencing Turner as an armed career criminal. There was never an order consolidating the cases. Moreover, the convictions were committed in different towns on different days, had different victims, and involved distinct criminal episodes. Hammell , 3 F.3d at 1191. Since the two robbery convictions and the drug conviction are qualifying offens es under the Act, 18 U.S.C. § 924(e) and USSG § 4B1.4, we need not discuss whether the burglary conviction was a violent felony or whether Turner waived his right to appeal this issue.

Turner also argues in his pro se brief that he is entitled to resentencing because he claims the district court misstated the total offense level for his drug conviction to be 32 instead of 30. He argues that the guideline range resulting from a level 30 would have been 168 - 210 months for the drug conviction and that he would have received a lower sentence had the court usedthe correct total offense level adjusted for his acceptance of responsibility. Turneroverlooks the fact, however, that the-10- court's statement of reasons in its judgmen t indicated that it had adopted the guideline calculations in the presentence report (whi ch set the total offense level for the drug count at 30). In any event his 210 month sentence on the drug count was within the guideline range regardless of whether the to tal offense level was 32 or 30. Moreover, the court found that his total offense le vel for the gun conviction was 32 with a resulting guideline range of 210 - 262 months. Turner does not maintain that the court made any calculation error in relation to that count, and the court imposed concurrent sentences on the two counts of conviction. We conclude that Turner has not shown sentencing error entitling him to resentencing.

For these reasons we affirm the judgment of the district court.

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