NOT RECOMMENDED FOR PUBLICATION

File Name: 14a0640n.06

No. 13-5875

UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee,

v.

MERRELL NEAL

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF TENNESSEE

BEFORE: MOORE and ROGERS, Circuit Judges; and NIXON, District Judge.*

JOHN T. NIXON, District Judge. Merrell Neal filed a motion to suppress evidence 

seized pursuant to a search warrant, arguing probable cause did not exist for the warrant to issue.

After the district court denied the motion to suppress, Neal pled guilty to conspiracy to possess 

with intent to distribute five or more kilograms of cocaine pursuant to a plea agreement, and was 

sentenced to life imprisonment. Neal appeals (1) the district court’s denial of his motion to 

suppress, (2) the district court’s denial of his motion for a hearing under Delaware v. Franks, 

438 U.S. 154 (1978), and (3) the constitutionality of his sentence of life imprisonment. For the 

reasons below, we AFFIRM Neal’s conviction and sentence.

 

* The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by 

designation.
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I. BACKGROUND

A. Factual History

The affidavit in support of the search warrant application in this case (hereinafter 

“Affidavit”) was sworn by Federal Bureau of Investigation (“FBI”) Special Agent Mickey 

Nocera of the Knoxville Division. Nocera averred that in the spring of 2011, an unidentified 

person (hereinafter “CS1”) approached Chicago FBI agents; volunteered information regarding 

persons allegedly engaged in a pipeline operation to transport cocaine between Chicago, Illinois,

and Knoxville, Tennessee; and agreed to work with the Chicago FBI as a confidential informant, 

stating that her motivation in providing assistance was to have her fiancé’s sentence for an 

unrelated narcotics conviction reduced. 

CS1 met Neal through a mutual friend in February or March of 2011, and soon after

agreed to accompany Neal on multiple road trips from Chicago to Knoxville to visit Neal’s 

brother, Michael Neal. Though CS1 did not initially know the purpose of the trip, she agreed to 

go when Neal offered to pay her to ride with him. Nocera averred that Neal’s reason for wanting 

CS1 to accompany him was that he “believed that a couple traveling together would appear less 

suspicious to law enforcement.” The Affidavit also stated that CS1 observed that Neal “took a 

handgun with him on these trips, which he kept in the center consoles inside the passenger 

compartment of the rental cars.” The following statements are taken from the Affidavit that were 

drawn from statements CS1 made to the FBI and independent investigation conducted by the 

FBI.

1. Neal and CS1’s First Two Trips to Knoxville

According to the Affidavit, CS1 and Neal made two trips from Chicago to Knoxville in 

early April 2011. On their first trip, on April 1, 2011, Neal and CS1 traveled in a rental car and
No. 13-5875, United States v. Neal

3

used a GPS navigation device to direct them to “800 Beaman Street, Knoxville, Tennessee,” 

which was in the vicinity of their destination.1 CS1 and Neal arrived at a house on South 

Beaman Street (“Michael’s house”) at sometime between 3:00 and 4:00 a.m. Neal pulled into 

the driveway of the house, retrieved a duffle bag from the trunk of the car, and he and CS1 

entered the house. Upon entry, CS1 met Michael and witnessed the Neals remove from Neal’s 

duffle bag three bricks of cocaine wrapped in black plastic with silver tape, and repackage them

into smaller quantities. CS1 also witnessed the Neals cook some of the cocaine into crack 

cocaine and package it for sale, and saw six to eight people come to the house over the next few 

hours to buy the cocaine and crack cocaine. Once most of the drugs had been sold, Neal and 

CS1 returned to Chicago, with Neal taking some of the sales proceeds with him and Michael 

keeping the rest.

According to the Affidavit, Neal and CS1 made their second trip to Knoxville on April 9, 

2011, during which they again traveled in a rental car, entered the same address into a GPS, and 

arrived at Michael’s house in the early morning hours. Neal again parked in the driveway and 

removed a duffle bag from the trunk of the car before he and CS1 entered the house through the 

same side door. Michael was again in the house upon their arrival, but on this occasion CS1 saw 

the Neals remove five one-kilogram bricks of cocaine, packaged in the same fashion as the first 

trip, from the duffle bag. She then allegedly watched the Neals cook a portion of the cocaine 

into crack, repackage the cocaine and crack cocaine for sale, and sell it to a similar number of 

people as on the first trip. However during this trip, the Affidavit stated CS1 determined that 

Neal took $12,000 from the drug proceeds for himself and packaged $168,000 to take back to his 

cocaine supplier.

 

1 According to the Affidavit, CS1 believed the address of their final destination was actually 827 or 837 Beaman 

Street.
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2. Nocera’s Independent Corroboration of CS1’s Statements Regarding the First Two 

Trips

According to the Affidavit, CS1 described Michael’s house as “a single-story green 

house with a carport and ‘junk’ in the backyard.” Nocera identified a house that he averred

closely matched CS1’s description, located at 637 South Beaman Street in Knoxville, with green 

paint near the front door entrance, a carport attached to the back, and a collapsed shed in the 

backyard that “certainly looks like a pile of junk.” On May 3, 2011, Chicago FBI agents showed 

CS1 photographs of the house located at 637 South Beaman Street and another house at 3236 

Lay Avenue, obtained by Knoxville FBI agents that same day. According to the Affidavit, 

though CS1 “did not immediately recognize the house in the photographs because she did not 

recall that the house had a front porch,” the following day “CS1 identified the [637 South 

Beaman Street] house in those photographs as the one she visited twice in April 2011.”2

Between May 4 and 21, 2011, Knoxville FBI agents conducted video surveillance of 637 

South Beaman Street and observed a light green Infiniti sedan, resembling a car CS1 had 

previously identified as belonging to Michael, routinely parked at the house. Nocera learned 

through Tennessee Department of Safety records that Michael was the registered owner of a 

green Infiniti Q45 sedan, registered at 3937 Porter Avenue, Knoxville, Tennessee. Agents drove 

by 3937 Porter Avenue on May 3, 2011, and observed a light green Infiniti parked in the 

driveway that looked similar to the one observed at 637 South Beaman Street, and bearing a 

license plate that matched Michael’s registration records.

Nocera verified that the phone number CS1 provided for Michael’s cell phone was the 

same number listed for the utilities at 637 South Beaman Street, under the name Michael A. 

 

2 Neal points out that, according to reports produced by Chicago FBI agents after their meetings with CS1 on May 4, 

2011, CSI’s actual statement was merely that the house at 637 South Beaman Street “could possibly be the 

Knoxville stash house,” but that she did not make a positive identification. 
No. 13-5875, United States v. Neal

5

Neal. Nocera also observed, through surveillance footage of 637 South Beaman Street, “an 

inordinate amount of visitors to [the] house which, based on [his] training and experience, is 

indicative of a house used for drug trafficking purposes.” 

Nocera further discovered that Neal had been convicted in 1999 of cocaine conspiracy 

charges in federal court in Chicago and that Michael had been convicted in 2004 on a felony 

cocaine charge and a gun charge in Hawkins County, Tennessee, as well as an aggravated 

firearms charge in Cook County, Illinois. Nocera confirmed that 800 Beaman Street (as well as 

827 and 837) is not an address that exists in Knoxville, but hypothesized that entering 

“800 Beaman Street” into a GPS device would “likely produce directions to a location in the 

close vicinity of 637 South Beaman Street.” 

3. Neal and CS1’s Third Trip to Knoxville

According to the Affidavit, on May 20, 2011, CS1 informed Chicago FBI agents that she 

had received a phone call from Neal regarding taking a third trip to Knoxville that night. After 

Neal picked her up, CS1 told agents over the phone that they were traveling in a blue Chevrolet 

Impala. CS1 continued to update agents as to her location during the trip and FBI agents used 

electronic surveillance of CS1’s phone to track her location as she traveled through Kentucky 

and Tennessee. At approximately 5:00 a.m. on May 21, 2011, FBI agents observed a blue 

Chevrolet Impala on Interstate 75 heading South, near Clinton, Tennessee, and confirmed that 

the Impala’s license place was registered to Neal. Nocera then observed, via electronic 

surveillance, a blue Chevrolet Impala pull into the driveway at 637 South Beaman Street at 5:20 

a.m. According to the Affidavit, the driver and a passenger exited the car, the driver retrieved a 

bag from the trunk, and they both went inside the house.
No. 13-5875, United States v. Neal

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Based on the warrant application and Affidavit, Magistrate Judge C. Clifford Shirley 

issued a search warrant for the house at 637 South Beaman Street. CS1 testified that she was 

only inside Michael’s house long enough to use the restroom and sit down on the couch before 

FBI agents entered the house on May 21, 2011. According to Nocera’s separate affidavit in 

support of the district court complaint, the warrant was executed at approximately 5:35 a.m., and 

during the search, agents recovered nearly three kilograms of cocaine, approximately sixty grams 

of crack cocaine, two loaded handguns, and found four people in the house: Michael Neal, 

Merrell Neal, Brandon Harris, and CS1. 

B. Procedural History

Neal was first arraigned on May 25, 2011. He filed two motions to suppress evidence 

and a request for a Franks hearing on August 15, 2011. Magistrate Judge Shirley held an 

evidentiary hearing on the motions on September 8, 2011, after which the parties were permitted 

to file supplemental briefing. On April 13, 2012, Judge Shirley issued a report and 

recommendation, recommending that the motions be denied. Neal filed an objection to the 

report, after which the district court adopted the report in part and denied both motions on June 

12, 2012.

The district court accepted Neal’s guilty plea on June 18, 2012, pursuant to a sealed plea 

agreement that reserved Neal’s right to appeal the denial of his suppression motions. On June 

19, 2012, Judge Thomas W. Phillips sentenced Neal to life imprisonment followed by ten years 

supervised release based on an offense level of 29, a criminal history category of II, and Neal’s 

two prior drug convictions, which qualified him for an enhanced sentence pursuant to 21 U.S.C. 

§§ 841(b)(1)(A), 851. Judge Phillips noted that because the sentence involved a statutory 
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mandatory minimum, the court had no discretion to grant Neal’s motion for downward 

departure, as the guidelines were not applicable in his case. Neal timely filed the instant appeal.

II. MOTIONS TO SUPPRESS

A. Standard of Review

On review of a district court’s denial of a motion to suppress, this Court reviews findings 

of fact for clear error and conclusions of law de novo. United States v. Beauchamp, 659 F.3d 

560, 565 (6th Cir. 2011). A finding of probable cause is a legal conclusion that the Court 

reviews de novo. United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008). An appeal from 

the denial of a motion to suppress evidence requires us to “consider the evidence in the light 

most favorable to the government.” United States v. Rodriguez-Suazo. 346 F.3d 637, 643 (6th 

Cir. 2003) (internal quotation marks omitted). However, [w]hen the district court itself is a 

reviewing court, this court owes the district court’s conclusions no particular deference.” United 

States v. Van Shutters, 163 F.3d 331, 336 (6th Cir. 1998) (quotation marks and citation omitted).

B. Analysis

1. Standing

Neal’s first argument on appeal is that the district courted erred in finding that Neal 

lacked standing to contest the search warrant at issue. As the government points out, the district 

court did not address the issue of standing in ruling on the motions to suppress and instead 

presumed standing existed in order to reach the merits of the motions. As the district court did 

not determine that Neal did not have standing to challenge the validity of the warrants, the issue 

of standing is not reviewable at this point. See United States v. Simpson, 520 F.3d 531 (6th Cir. 

2008) (reviewing only the district court’s basis for denying a motion to suppress, not the 

alternative basis set forth by the magistrate judge but not adopted by the district court).
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2. The District Court’s Probable Cause Determination

Under the Fourth Amendment, a search warrant may only be issued upon a showing of 

probable cause, defined as “a fair probability that contraband or evidence of a crime will be 

found in a particular place.” United States v. Higgins, 557 F.3d 381, 389 (6th Cir. 2009) 

(quoting United States v. Miller, 314 F.3d 265, 268 (6th Cir. 2002)) (internal quotation marks 

omitted). In other words, the issuing magistrate must have “reasonable grounds for belief, 

supported by less than prima facie proof but more than mere suspicion,” United States v. Coffee, 

434 F.3d 887, 892 (6th Cir. 2006) (internal quotation marks omitted), that “a nexus [exists] 

between the place to be searched and the evidence sought,” United States v. Carpenter, 360 F.3d 

591, 594 (6th Cir. 2004) (en banc) (internal quotation marks omitted). 

“[W]here an affidavit is the basis for a probable cause determination, that affidavit ‘must 

provide the magistrate with a substantial basis for determining the existence of probable cause.’” 

United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003) (quoting Illinois v. Gates, 462 U.S. 

213, 239 (1983)). We consider the “totality of the circumstances” when analyzing the 

sufficiency of a supporting affidavit. Coffee, 434 F.3d at 892. 

While a magistrate “may rely on hearsay evidence” in determining whether probable 

cause exists to issue a search warrant, Helton, 314 F.3d at 819, when a warrant is issued based on 

information provided by an informant, our review under the totality of the circumstances must 

consider the informant’s “‘veracity, reliability, and basis of knowledge’” to determine “whether 

an affidavit is sufficient to support a finding of probable cause.” United States v. May, 399 F.3d 

817, 822 (6th Cir. 2005) (quoting Gates, 462 U.S. at 230). On the other hand, this Court “do[es] 

not engage in de novo review of the affidavit,” and “‘the magistrate’s probable cause 

determination should be afforded great deference.’” United States v. Rodriguez-Suazo, 346 F.3d 
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637, 643 (6th Cir. 2003) (quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). 

“Review of the sufficiency of evidence supporting the probable cause determination is limited to 

the information contained in the four corners of the affidavit.” Ellison v. Balinski, 625 F.3d 953, 

958 (6th Cir. 2010).

Neal argues the district court erred in upholding the magistrate’s finding that probable 

cause existed for the search. Specifically, Neal contends Nocera’s Affidavit provided an 

insufficient basis for probable cause because it did not contain adequate evidence for the 

magistrate to determine that CS1’s statements were reliable or substantially corroborated by law 

enforcement. The district court found the affidavit adequately supported the veracity and 

reliability of CS1’s statements, even absent independent corroboration, based on (1) CS1 having 

first-hand knowledge of the facts she supplied, (2) the level of detail she provided in describing 

her trips with Neal and the drug activities she allegedly witnessed, (3) the fact that her identity 

was known to Chicago FBI agents, and (4) the fact that the information she relayed amounted to 

an admission of participation in criminal activity. The district court also found law 

enforcement’s independent corroboration of some of CS1’s information sufficient to verify her 

reliability and veracity, and therefore, based on the totality of the circumstances, a substantial 

basis existed for the magistrate’s probable cause finding. 

“‘While independent corroboration of a confidential informant’s story is not a sine qua 

non to a finding of probable cause, in the absence of any indicia of the informant’s reliability, 

courts insist that the affidavit contain substantial independent police corroboration.’” Coffee, 

434 F.3d at 893 (ellipses and brackets omitted) (quoting United States v. Frazier, 423 F.3d 526, 

532 (6th Cir. 2005)). By contrast, an affidavit containing statements of a “known person, named 

to the magistrate, to whose reliability an officer attests with some detail, [and who] states that he 
No. 13-5875, United States v. Neal

10

has seen a particular crime and particular evidence, in the recent past,” may be sufficient for a 

finding of probable cause without independent police corroboration. United States v. Allen, 

211 F.3d 970, 976 (6th Cir. 2000) (en banc). In short, where an affidavit substantially relies on 

hearsay statements provided by a confidential informant, probable cause for a warrant to issue 

depends on whether the reliability of the informant or sufficient independent police corroboration 

of the informant’s statements can be found within the four corners of the affidavit. See United 

States v. Woosley, 361 F.3d 924, 926–27 (6th Cir. 2004); United States v. Weaver, 99 F.3d 1372, 

1377 (6th Cir. 1996).

a. Veracity, Reliability, and Basis of Knowledge of the Confidential Informant

Our precedent suggests that, in determining the reliability of statements provided by an 

informant under the totality of the circumstances, no single measure of reliability is required for 

a magistrate to find a confidential informant’s statements reliable. Instead, we must balance all 

potential indicia of reliability present in the affidavit. See Allen, 211 F.3d at 975 (“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.”); Higgins, 557 F.3d at 389 (noting that while veracity, reliability, 

and basis of knowledge are all “highly relevant” to a probable cause inquiry, they are “not 

‘separate and independent requirements to be rigidly exacted in every case’” (quoting Gates, 

462 U.S. at 230)); United States v. Jackson, 470 F.3d 299, 308 (6th Cir. 2006) (finding there is 

no requirement that an informant be named to the magistrate in order for the magistrate to rely 

on his or her statements); May, 399 F.3d at 823–24 (rejecting the district court’s conclusion that 

an unidentified informant’s statements must be corroborated by independent police 

investigation); Woosley, 361 F.3d at 926–27 (citing Allen as cautioning against reliance on 

“formalistic ‘tests’ that require[] satisfaction of particular elements to support a finding of 
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probable cause”); Rodriguez-Suazo, 346 F.3d at 646 (holding that the veracity, reliability, and 

basis of knowledge factors must be evaluated under the “fluid totality of the circumstances 

approach”).

This Court has repeatedly held that an affidavit that furnishes details of an informant’s 

track record of providing reliable tips to the affiant can substantiate the informant’s credibility,

such that other indicia of reliability may not be required when relying on the informant’s 

statements. See Allen, 211 F.3d at 976 (no independent corroboration needed where the 

informant was known to the magistrate and the affiant averred to the informant’s reliable tips in 

previous criminal matters with the same officer over the past five years); May, 399 F.3d at 824–

25 (informant whose identity was known to the affiant and who the affiant averred had provided 

assistance in unrelated drug cases was deemed reliable notwithstanding the affiant’s failure to 

disclose his identity to the magistrate); Helton, 314 F.3d at 821 (finding statements of an 

informant may be treated as trustworthy and reliable without corroboration, based on the 

informant’s track record of previously providing information for three searches and sixteen 

arrests); United States v. Moore, 661 F.3d 309, 313 (6th Cir. 2011) (affirming a finding that an 

informant was deemed reliable based on (1) the informant having previously provided the affiant 

information that led to two drug seizures, and (2) the informant’s statements that he had 

personally seen drugs at the place to be searched). 

However, where the affidavit does not aver facts showing the relationship between the 

affiant and the informant, or detail the affiant’s knowledge regarding the informant providing 

prior reliable tips that relate to the same type of crimes as the current tip concerns, this Court has 

generally found that other indicia of reliability must be present to substantiate the informant’s 

statements. See Frazier, 423 F.3d at 532 (finding an affidavit failed to establish an informant’s 
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reliability where the affiant did not aver (1) the informant’s track record for providing reliable 

information, (2) the length of the relationship between the affiant and the informant, or (3) that 

the identity of the informant was disclosed to the magistrate). The necessity of the affiant 

providing further indicia of reliability of his or her informant has been found even in cases where 

the informant’s identity was disclosed to the magistrate and the statements amounted to an 

admission of criminal conduct. See Higgins, 557 F.3d at 389–90 (finding that, although the 

informant was known to the affiant and the issuing magistrate and admitted participating in a 

crime, the informant’s statements were not reliable because the affiant did not attest to the 

informant’s reliability); United States v. Hammond, 351 F.3d 765, 772 (6th Cir. 2003) (finding 

an informant had not been shown to be reliable where the affiant did not state how long officers 

knew the informant or whether the affiant knew the informant at all, and the affiant failed to state 

that the informant was a reliable source or had previously given police reliable information in the 

past); Helton, 314 F.3d at 822 (finding the affidavit did not show the veracity of an anonymous 

tipster’s statements because it did not provide any background information on or basis for 

believing the tipster, and also failed to describe any track record of accurate tips previously 

provided).

The Affidavit at issue here does not contain the indicia of reliability needed to find CS1’s 

statements reliable absent corroboration. In his Affidavit, Nocera stated that FBI agents in 

Chicago were working with CS1, who had approached them offering to provide information 

about someone transporting cocaine in return for a sentence reduction for a third party.3 

Nocera’s only statements in the Affidavit regarding CS1’s reliability are as follows:

CS1 has provided what I believe to be truthful and accurate information 

concerning the people who have been transporting multiple kilograms of cocaine 

 

3 As CS1’s Grand Jury testimony reflects, she agreed to volunteer information for the express purpose of earning 

credit towards an unrelated 26-year prison sentence her fiancé was serving at the time.
No. 13-5875, United States v. Neal

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from Chicago to Knoxville in recent weeks. As will be detailed in subsequent 

paragraphs herein, CS1’s information is detailed and has been independently 

corroborated in a number of ways. As a consequence, I believe CS1 to be highly 

credible.

Nocera did not indicate that he had worked with CS1 in the past or that he was aware of any 

prior information she had provided law enforcement that was subsequently found to be reliable. 

To the contrary, there is no evidence in the record that Nocera had ever even met or spoken with 

CS1 prior to swearing the Affidavit, thus his averments of her reliability and veracity could not 

have been based on personal knowledge. There is also no indication in the record that the 

identity of CS1, unnamed in the Affidavit, was disclosed to the magistrate who issued the search 

warrant. Nocera did not indicate that CS1 had a history of providing reliable information to law 

enforcement or that she had ever worked as a confidential informant prior to this occasion. 

Because Nocera’s only averments of CS1’s reliability are conclusory statements not supported 

by personal knowledge, they cannot serve as indicia of CS1’s reliability.

The government argues CS1’s credibility was enhanced because her identity was known 

to law enforcement and her statements amounted to admissions of participation in criminal 

activity. However, as in Higgins, CS1’s admission that she was complicit in criminal activity—

even combined with other facts that might substantiate her statements—does not necessarily 

provide probable cause absent meaningful corroboration. See 557 F.3d at 389–90 (explaining 

that, even though an admission against penal interest is a “‘significant, and sometimes 

conclusive, reason for crediting the statements of an informant,’” admission of a crime, even 

combined with the fact that the informant was known to the affiant and the magistrate, could not 

alone provide probable cause) (quoting Armour v. Salisbury, 492 F.2d 1032, 1035 (6th Cir. 

1974)). 
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The only other indicia of reliability the district court identified were the specificity of 

CS1’s statements and the fact that she stated she had firsthand knowledge of the criminal activity

she described. However, both prior to and since the Court’s en banc decision in Allen, members 

of this Court have discussed the inherent logical flaw in using (1) the level of detail of an 

informant’s story and (2) his or her statement that he or she witnessed criminal activity firsthand, 

as evidence of the reliability of his or her statements. See, e.g., United States v. Dyer, 580 F.3d 

386, 394 (6th Cir. 2009) (Moore, J., dissenting) (“It simply cannot be enough to support a search 

warrant that a previously untested and unknown informant comes to police . . . claims to have 

witnessed drug activity in another individual’s home, and describes innocent facts such as the 

home’s location and design and the alleged drug dealer’s physical appearance.”); United States v. 

Sonagere, 30 F.3d 51, 54–55 (6th Cir. 1994) (Merritt, J., dissenting) (noting the inherent 

contradiction in the majority’s reliance on “the ‘extreme’ richness of detail provided by the 

anonymous ‘information source,’” where the affiant stated he had “no basis to judge the source’s 

credibility or reliability” and the police officers did not corroborate the source’s statements or 

develop independent information). By relying primarily on the level of detail provided in 

statements to assess their reliability, courts are apt to mistake the best storytellers for the most 

truthful informants. In other words, “[i]f detail is all that is needed to support a search warrant, 

the Fourth Amendment will no longer be any constraint or check on the issuance of search 

warrants. Any ‘detailed’ information, uncorroborated by the police, from virtually any unknown, 

unreliable source, would support issuance of a search warrant.” Sonagere, 30 F.3d at 55 

(Merritt, J. dissenting). It is important to keep in mind that, as previously explained, the 

determination of whether probable cause existed at the time the search warrant was issued is 

confined to the four corners of the warrant application and affidavit, and thus subsequent 
No. 13-5875, United States v. Neal

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confirmation of an informant’s statements via evidence seized in the search (or any other 

activities following the issuance of the warrant) cannot retroactively provide a basis for the 

reliability of the informant. 

In Frazier, this Court found insufficient facts existed to support a confidential 

informant’s reliability where the affidavit provided no information regarding (1) previous 

reliable information provided by the informant; (2) the length of the relationship between the 

affiant and the informant; or (3) disclosure of the informant’s identity to the issuing magistrate. 

423 F.3d at 532. Seeming to depart from Frazier’s reliance on these indicators, the Dyer Court

determined that despite a similar lack of any of the three listed indicia of reliability in the 

affidavit, the informant’s reliability was proven based on the facts that the affiant met and 

travelled with the informant to the location to be searched to corroborate details from the 

informant’s statement, and that the informant had stated that he had witnessed illegal activity on 

the premises to be searched.4 580 F.3d at 391–92. 

While it appears Dyer may contradict Frazier, we need not analyze that question as the 

facts of this case are clearly distinguishable from Dyer. Here, Nocera did not aver any 

information about meeting or speaking with CS1 as it appears from the record he did not ever 

meet or speak with her directly. The reliability provided in an officer’s ability to analyze the 

credibility of an informant through in-person interaction or real-time vocal communication was 

thus entirely absent in this case. As such, even the minimal indicia of reliability determined to 

be sufficient by the Dyer Court was not present here, nor were any of the three indicia of 

 

4 The Dyer Court appears to also have distinguished its holding from Frazier based on the presence of a nexus 

between the place to be searched and the evidence sought. 580 F.3d at 391. Cases in this Circuit treat the finding of 

a nexus between the place to be searched and the evidence sought as a standalone requirement for probable cause,

notwithstanding the required finding of reliability or corroboration of a confidential informant. See e.g., United 

States v. Moore, 661 F.3d 309 (6th Cir. 2011). Thus we interpret Dyer’s finding of a nexus as part of its overall 

determination that probable cause existed for the search warrant in that case to issue.
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reliability held to be determinative in Frazier. In fact, the only potential indicia of reliability in 

this case are CS1’s statements that she had witnessed illegal activity on the premises. As the 

number of uncorroborated details in a statement is not determinative of its accuracy, we hold that 

reliance on the substance of an unproven statement to determine its reliability cannot substantiate 

an informant’s credibility. Accordingly, here the Chicago FBI agents’ knowledge of CS1’s 

identity and the nature and detail of CS1’s statements do not provide sufficient indicia of 

reliability to support a finding of probable cause without independent police corroboration. 

b. Independent Police Corroboration of the Confidential Informant’s Statements

“[A]n affidavit that supplies little information concerning an informant’s reliability may 

support a finding of probable cause, under the totality of the circumstances, if it includes 

sufficient corroborating information.” Woosley, 361 F.3d at 927 (citing Gates, 462 U.S. at 241–

45). 

The district court determined that the following facts discovered by Nocera’s 

investigation corroborated facts given by CS1: 

 The house at 637 South Beaman Street closely matched CS1’s description of Michael’s 

house; 

 The address “800 Beaman Street” does not actually exist, as indicated by CS1; 

 The utilities for 637 South Beaman Street were in the name Michael A. Neal, and the 

phone number on the account matched the phone number CS1 supplied for Michael; 

 A light green Infiniti sedan matching the description given by CS1 was registered to 

Michael, though not at 637 South Beaman Street; 

 A light green Infiniti was observed at the address associated with the vehicle’s 

registration, bearing the license plate of a vehicle registered to Michael; 

 Both Neal brothers had prior felony convictions involving cocaine; 
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 Surveillance of 637 South Beaman Street between May 4 and 20, 2011, revealed 

Michael’s light green Infiniti routinely parked at the house, as well as an “inordinate 

amount of visitors” coming and going from the house; 

 Electronic tracking on May 20 and 21, 2011, showed CS1 traveling from Chicago to 

Knoxville; 

 Agents observed a blue Chevrolet Impala traveling on the highway near Clinton, 

Tennessee, in the early morning hours of May 21, 2011, bearing a license plate registered 

to Neal; 

 Nocera observed, through surveillance, a blue Impala pull into the driveway of 637 South 

Beaman Street at approximately 5:20 a.m. on May 21, 2011, at which time the driver and 

a passenger got out of the car, the driver retrieved a bag from the trunk, and the two went 

into the house. 

While none of the corroborating information includes any observations of criminal activity, the 

district court determined this information was a sufficient basis for probable cause because (1) it 

was adequate to establish CS1’s reliability and veracity, and (2) it established a substantial basis 

for the magistrate’s probable cause determination because of the suspicion attached to the 

corroborated acts. The district court also concluded that, the similarity between the events 

observed by agents on May 20–21, 2011, and CS1’s statements regarding her first two trips with 

Neal served to fully corroborate the first two trips. Specifically, the district court found the 

agents’ observations of the May 20–21 trip confirmed that the first two trips CS1 stated she made 

with Neal actually occurred.

The corroborating facts the district court identified comprise only non-incriminating facts 

(aside from Nocera’s observation of what he opines was a suspicious number of people coming

to and going from the house).5 Further, it was error for the district court to hold that CS1’s 

 

5 Corroborated facts include: Michael’s phone number and name being associated with the utilities for the house at 

637 South Beaman Street; Michael’s ownership of a light green Infiniti; “800,” “827,” and “837” Beaman Street not 

being addresses that exist in Knoxville; Neal’s ownership of a blue Chervolet Impala; both Neal and Michael’s prior 

felony convictions involving cocaine; CS1’s cell phone being near Berea, Kentucky, and near Pioneer, Tennessee on 

the morning of May 21, 2011; and Neal’s Impala driving on a highway south of Clinton, Tennessee on the morning 

of May 21, 2011.
No. 13-5875, United States v. Neal

18

statements regarding the third trip could serve to corroborate the first two trips. In fact, the 

record is entirely bereft of independent corroboration of the first two trips—at no point did 

agents obtain any information to verify the occurrence of the first two trips outside of CS1’s 

statements that they occurred. As the evidence in the record does not show the reliability of 

CS1’s statements and does not corroborate the first two trips, it necessarily follows that CS1’s 

declaration that these trips occurred is insufficient to provide corroboration of the trips

themselves.

The district court relied on Gates for the proposition that corroboration of innocent facts 

can provide a sufficient basis for finding probable cause. However, in Gates, and the case upon 

which it relies, Draper v. United States, 358 U.S. 307 (1959), the confidential tips received by 

police described in detail activities that were to take place in the future, which allowed police to 

“personally verif[y] every facet of the information” contained in the tips as the events unfolded, 

prior to seeking a search warrant. Gates, 462 U.S. at 242–44 (citing Draper, 358 U.S. at 313). 

By contrast here, CS1 did not provide any information regarding future events that agents could 

verify through independent observation to bolster the reliability of the rest of CS1’s statements.

6

 

Instead, CS1 only provided information regarding past events and one event as it occurred. 

The government argues that the veracity and reliability of CS1’s statements were proved 

by agents observing CS1 perform certain actions, similar to agents in United States v. Smith, 

337 F. App’x 500, 504–05 (6th Cir. 2009), and United States v. Henry, 299 F. App’x 484, 487–

88 (6th Cir. 2008). However, Smith and Henry both relied on Coffee and involved the narrow 

 

6 Though the district court states that the similarity in CS1’s statements regarding the first two trips and the agents’ 

observations of the third trip supports the veracity of the statements, the only facts that were independently 

corroborated with respect to the third trip are: (1) that CS1’s phone was tracked at certain locations in Kentucky and 

Tennessee, (2) CS1’s description of the vehicle she traveled in, and (3) the arrival of a vehicle with the same 

description at 637 Beaman Street. Additionally, even though CS1 correctly informed agents that she was in Neal’s 

blue Impala after the trip started, even this fact is different from her description of the first two trips in which she 

stated they drove in rental cars.
No. 13-5875, United States v. Neal

19

issue of controlled drug purchases not present in this case. In Coffee, this Court held that an

informant’s statement that he had made previous drug purchases from the suspect could be

independently corroborated through having the informant make a police-monitored controlled 

buy. 434 F.3d at 894–95. Similarly, in Jackson the Court explained that, though details 

regarding the informant’s reliability based on previous encounters were lacking, controlled buys 

allowed the magistrate to base a probable cause finding on the affiant’s personal knowledge and 

observations of the informant, rather than the informant’s hearsay statements. 470 F.3d at 308.

Applying that reasoning to Nocera’s personal knowledge and observations, we are left 

with only the following facts: a car registered to Neal made a trip to a house his brother 

occupied;7such house was frequented by a number of visitors; Michael owned a light green 

Infiniti that was registered at a different address; CS1’s cell phone was electronically tracked in 

Kentucky and Tennessee prior to a blue Impala arriving at 637 South Beaman Street; and both 

Neal brothers had prior convictions involving cocaine. These non-incriminating facts are easily 

distinguishable from the controlled drug purchases observed by law enforcement in Coffee, 

Smith, Henry, and Jackson, both because they do not reveal any criminal activity,

8

and because 

they are attenuated from the substance of CS1’s statements regarding the previous trips she and

Neal made to Knoxville for the purpose of cooking, packaging, and distributing narcotics.

This Court has previously found even more concrete police corroboration than what was 

provided in this case to be insufficient for finding probable cause. In Higgins, the Court found 

the following verified facts were insufficient corroboration of an informant’s statements for a

 

7 Nocera did not identify Neal or CS1 as the people he observed getting out of the blue Impala at 637 South Beaman 

Street. However, as it appears from the record that Nocera never met CS1, it is logical that he could not actually 

identify her as one of the people he saw at the house on May 21, 2011. Nocera also did not verify that the car that 

arrived at the Beaman Street house had the same license plate number as the car seen on the highway that was 

verified as registered to Neal.

8 We note that this Court has previously determined a defendant’s criminal record is irrelevant to the determination 

of whether a location presently contains evidence of a crime. See Higgins, 557, F.3d at 390. 
No. 13-5875, United States v. Neal

20

probable cause finding: (1) passengers in the informant’s car confirmed that the informant had 

bought drugs from the suspect, (2) officers verified the address the informant gave and the 

motorcycle the informant described as belonging to the suspect, and (3) officers discovered the 

suspect had two prior convictions for narcotics trafficking.9 557 F.3d at 390. In Frazier, the 

Court found the corroborating facts insufficient where the affiant verified the informant’s 

statements that the defendant would come and go from a specific address in an expensive 

vehicle, and that the defendant was in constant contact over the phone with known drug dealers. 

423 F.3d at 532. In Hammond the Court found insufficient corroboration where the affiant

verified the defendant’s address and the details provided about the exterior of the home, and 

independently learned the following information that confirmed the informant’s statements:

(1) numerous complaints had been made regarding a potential marijuana growing operation at 

the defendant’s residence, (2) an unusually high amount of power consumption was coming from

what was listed as a second building on the defendant’s property, and (3) results of an Aerial 

Thermal Image scan of defendant’s property were consistent with other indoor growing 

operations investigated by the affiant. 351 F.3d at 768–69, 773. 

Because the corroborated evidence in this case amounted to no more than innocent facts 

and did not include verification of future activities CS1 stated would happen, we find sufficient 

corroboration did not exist to provide a substantial basis for the magistrate’s probable cause 

finding. Nocera could not personally confirm CS1’s reliability as he never met or spoke with her 

and he did not provide sufficient corroboration of her statements beyond largely innocent facts.

As such, the magistrate did not have a substantial basis to find probable cause existed based on 

 

9

In Higgins, greater indicia of reliability also existed than are present in this case: the informant was known to the 

affiant and the issuing magistrate, and had admitted to buying drugs from the defendant. 557 F.3d at 389–90.
No. 13-5875, United States v. Neal

21

the four corners of the affidavit and we thus conclude the district court erred in determining the 

warrant was supported by probable cause.

2. Good Faith Exception to Suppression of Evidence Based on Lack of Probable Cause

Upon invalidating a search warrant that was issued without probable cause, we next 

assess whether the officers who executed the warrant relied in good faith on its validity, to 

determine whether evidence obtained pursuant to the invalid warrant should have been 

suppressed. The government argues that the good faith exception should apply in this case 

because the Affidavit was sufficiently detailed that officers could have objectively relied upon it 

in good faith to execute the search. The district court declined to rule on the applicability of the 

good faith exception after determining the warrant was supported by probable cause. Although 

as a general rule “a federal appellate court does not consider an issue not passed upon below,” 

Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 (2008), in our discretion we examine the issue 

of good faith because “the issue is presented with sufficient clarity and completeness” to be 

resolved at this time, see United States v. Williams, 615 F.3d 657, 668 (6th Cir. 2010) (internal 

quotation marks omitted). 

The Supreme Court created the good faith exception to the exclusionary rule in United 

States v. Leon, 468 U.S. 897, 922 (1984), explaining that the deterrent effect of excluding 

evidence obtained through unlawful conduct is not furthered by “suppressing evidence obtained 

in objectively reasonable reliance on a subsequently invalidated search warrant. An officer’s 

reliance on a deficient warrant is not in good faith where “a reasonably well trained officer 

would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922 

n.23. The Court carved out four circumstances in which an officer’s reliance on a subsequently 

invalidated warrant cannot be considered objectively reasonable:
No. 13-5875, United States v. Neal

22

first, if the issuing magistrate “was misled by information in an affidavit that the 

affiant knew was false or would have known was false except for his reckless 

disregard for the truth;” second, if “the issuing magistrate wholly abandoned his 

judicial role;” third, if the affidavit was “so lacking in indicia of probable cause as 

to render official belief in its existence entirely unreasonable,” or in other words, 

where “the warrant application was supported by [nothing] more than a ‘bare 

bones’ affidavit,” and, fourth, if the “warrant may be so facially deficient—i.e., 

failing to particularize the place to be searched or the things to be seized.” 

Weaver, 99 F.3d at 1380 (citations omitted) (quoting Leon, 468 U.S. at 914–15, 923). We find 

the officers here acted in good faith as none of the exceptions to the good faith doctrine apply.

First, as explained in more detail in Section III, Neal failed to make even a preliminary 

showing that Nocera knowingly included any false statements in the Affidavit. Thus, there is no 

question of whether false information in the Affidavit misled the issuing magistrate.

Second, we give “great deference” to a magistrate’s determination, Allen, 211 F.3d at 973 

(internal quotation marks omitted), and unless the magistrate “fail[s] to ‘manifest that neutrality 

and detachment demanded of a judicial officer when presented with a warrant application’ and

. . . acts instead as ‘an adjunct law enforcement officer,’” we cannot say the magistrate wholly 

abandoned his judicial role, Leon, 468 U.S. at 914 (quoting Lo-Ji Sales, Inc. v. New York, 

442 U.S. 319, 326–27 (1979)). The magistrate’s responsibility is to “make a practical, commonsense decision,” based on all of the circumstances in the affidavit presented, whether there is a 

“fair probability that contraband or evidence of a crime will be found in a particular place.” 

Gates, 462 U.S. at 238. No evidence has been presented and no argument advanced in this case

that the issuing magistrate abandoned his role as a neutral arbiter in issuing the warrant.

Third, the standard for finding good faith is less demanding than the “substantial basis” 

test necessary for probable cause in assessing the sufficiency of an affidavit. Suppression of 

evidence seized under an invalidated warrant will only be upheld under good faith analysis if the 

supporting affidavit “is so lacking in indicia of probable cause as to render official belief in its 
No. 13-5875, United States v. Neal

23

existence entirely unreasonable.” United States v. Washington, 380 F.3d 236, 241 (6th Cir. 

2004) (quoting Carpenter, 360 F.3d at 595) (internal quotation marks omitted). Thus, it is 

entirely possible that an affidavit contains “a minimally sufficient nexus between the illegal 

activity and the place to be searched to support an officer’s good-faith belief in the warrant’s 

validity, even if the information provided was not enough to establish probable cause.” 

Carpenter, 360 F.3d at 596. This analysis requires examination of only the four corners of the 

affidavit, and we will only find the affidavit is “bare bones” if it “states suspicions, beliefs, or 

conclusions, without providing some underlying factual circumstances regarding veracity, 

reliability, and basis of knowledge.” Weaver, 99 F.3d at 1378. 

While the Affidavit in this case did not meet the standard necessary to provide probable 

cause for the search, Nocera did corroborate enough specific facts (void of criminal behavior as 

they may be) to establish a minimal nexus between the place to be searched and the potential for 

criminal activity. See Carpenter, 360 F.3d at 595–96. Specifically, Nocera determined that 

Michael was associated with the Beaman Street house by learning that the utilities for the house 

were in his name and that a car identical to one registered to Michael was frequently at the 

house. Thus, an objective officer could reasonably rely on the Affidavit to believe probable 

cause existed for the warrant to issue.

Similarly, we decline to find that the warrant was so facially deficient that the executing 

officers could not reasonably presume it to be valid as there is no contention that the warrant 

“fail[ed] to particularize the place to be searched or the things to be seized.” Leon, 468 U.S. at 

923. The warrant application and Affidavit provided the physical location of the house and 

vehicle to be searched, as well as a detailed description of the house, photographs of the outside 

of the house, and driving directions to reach the location. Additionally, the Affidavit explicitly 
No. 13-5875, United States v. Neal

24

listed the items sought from the house and the car, including: powder cocaine and crack cocaine; 

scales; baggies and other packaging materials; diluting or cutting agents used to increase the 

volume of cocaine for distribution; utensils, containers, and appliances used to make crack 

cocaine, including Pyrex containers and a blender; firearms and ammunition; United States 

currency; money counters; cellular telephones; documentary evidence including address books, 

ledgers, notes, photographs, and documents showing dominion, control, or occupancy of the 

Beaman Street house; a GPS device; gas and food receipts; rental agreements; and other 

documentary evidence possessed by Neal.

Because we find no circumstances exist in this case to render an objective officer’s 

reliance on the subsequently invalidated warrant unreasonable, the good faith exception applies,

and the evidence seized pursuant to the warrant was properly admitted against Neal.

III.MOTION FOR A FRANKS HEARING

This Court reviews a district court’s denial of a defendant’s motion for a hearing under 

Franks v. Delaware, 438 U.S. 154 (1978), “using the same standard as for the denial of a motion 

to suppress; that is, [the Court] review[s] for clear error the district court’s factual findings, and . 

. . review[s] de novo the district court’s conclusions of law.” United States v. Brown, 732 F.3d 

569, 574–75 (6th Cir. 2013).

Franks provides that a search warrant is invalid under the Fourth Amendment when “the 

supporting affidavit contains a statement, necessary to the finding of probable cause, that is later 

demonstrated to be false and included by an affiant knowingly and intentionally, or with a 

reckless disregard for the truth.” United States v. Duval, 742 F.3d 246, 250 (6th Cir. 2014). 

“Franks also extends to circumstances in which an officer omits evidence in a search-warrant 

affidavit that is critical to determining the existence of probable cause.” Id. at 251 (citing 
No. 13-5875, United States v. Neal

25

Carpenter, 360 F.3d at 596 (“[T]his court has recognized that material omissions are not immune 

from inquiry under Franks.”)). 

To be entitled to a Franks hearing based on an affirmative misstatement, a defendant 

must “make[] 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 . . . the allegedly false statement is necessary to the finding of probable cause.” 

Franks, 438 U.S. at 155–56. Although material omissions from an affidavit may also provide a 

basis for a Franks hearing, “[t]his court has repeatedly held that there is a higher bar for 

obtaining a Franks hearing on the basis of an allegedly material omission as opposed to an 

allegedly false affirmative statement.” United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 

2008); see also Carpenter, 360 F.3d at 596–97 (“But to be constitutionally problematic, the 

material must have been deliberately or recklessly omitted and must have undermined the 

showing of probable cause.”).

Neal raises two arguments as to why it was reversible error for the district court to deny 

his motion for a Franks hearing. First, he argues Nocera’s averment of the veracity of CS1’s 

statements and CS1’s credibility amounted to an affirmative misstatement, given that Nocera had 

never met or spoken with CS1. Second, Neal argues Nocera’s omission of a statement made by 

Chicago FBI agent Danny Price, indicating that Price doubted CS1’s veracity, amounted to a 

material omission. Neal contends that, had the issuing magistrate known these two facts at the 

time he reviewed the Affidavit, he might not have determined that probable cause existed for the 

search warrant to issue. While Neal admits that he does not know whether Nocera was aware of 

Price’s statements at the time of the Affidavit, Neal argues he was entitled to a Franks hearing to 

determine whether (1) Chicago FBI agents had “laundered information” about CS1 to make her 
No. 13-5875, United States v. Neal

26

seem more credible to Nocera than she actually was, or (2) Nocera knew about Price’s doubts, 

and thus recklessly disregarded their truth in omitting them from his Affidavit. Based on either 

premise, Neal argues the misstatement or material omission amounted to a reckless disregard for 

the truth on the part of investigating officers in this case, entitling him to a Franks hearing.

The district court held that, with respect to the allegedly false statement by Nocera about

CS1’s veracity, Neal was not entitled to a Franks hearing because he did not make a substantial 

preliminary showing that the statement was indeed false or made with a reckless disregard for 

the truth. The court instead found that Nocera’s corroboration of facts in CS1’s statement 

provided him adequate grounds to state his beliefs regarding her credibility. With regard to the 

alleged material omission, the district court determined that the omission of information 

regarding Price’s skepticism of CS1’s veracity was not material to the magistrate’s probable 

cause finding. Moreover Neal did not present any evidence that the omission was made with a 

reckless disregard for the truth.

With respect to the first prong of the Franks analysis, Neal’s argument regarding both 

Nocera’s alleged misstatement and his omission do not identify sufficient facts indicating Nocera 

acted with reckless disregard for the truth. Although Neal does offer proof that, at one point, 

Price doubted CS1’s veracity, he fails to acknowledge that Price subsequently filed a separate 

report explaining that his previous misreading of CS1’s telephone records was the sole basis for 

his doubting CS1’s truthfulness. Moreover, Neal fails to establish or even assert that Nocera’s 

alleged misstatement or material omission was necessary for the magistrate’s probable cause 

determination. 
No. 13-5875, United States v. Neal

27

We note that Neal has pointed to numerous discrepancies between the Affidavit and 

(1) the reports of Chicago FBI agents, (2) CS1’s Grand Jury testimony, and (3) Nocera’s 

subsequent affidavit in support of the complaint that we recognize as potentially problematic.

While the number of inconsistencies and apparent contradictions between the Affidavit 

and Nocera’s second sworn statement of the same day and CS1’s Grand Jury testimony given 

just three days after the Affidavit is unsettling, the appearance of inconsistent testimony after the 

affiant has given a statement does not show that the affiant acted with reckless disregard for the 

truth. See United States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001). Accordingly the district 

court did not err in deciding that Neal was not entitled to a Franks hearing.

IV.CONSTITUTIONALITY OF SENTENCE

This Court reviews constitutional challenges to a sentence de novo. Graham, 622 F.3d 

445, 452 (6th Cir. 2010) (“Graham II”). Neal argues his life sentence under 21 U.S.C. 

§ 841(b)(1)(A) violates both the Eighth and Fourteenth Amendments; specifically, Neal contends 

the sentence contravenes of the Fourteenth Amendment Equal Protection Clause and Eighth 

Amendment prohibition on cruel and unusual punishment. Neal’s argument is based entirely on 

sentencing disparities—nationally, regionally, and within this case—in claiming his sentence 

was unconstitutional.10 In particular, Neal argues that it should “raise the curiosity of the court” 

that he received a life-sentence while his co-defendant, with an allegedly similar criminal 

background, received a sentence of 120 months.

Under 21 U.S.C. § 851, when seeking a sentencing enhancement based on prior drug 

convictions, the Government must file an information with the district court prior to trial, 

 

10 Neal mentions in passing that one of his underlying convictions was based on an offense he committed at 17 years 

old, although he was tried and sentenced as an adult. However, he does not appear to assert this as a basis for 

challenging his sentence. Regardless, this Court has already explicitly rejected this exact argument. Graham II, 

622 F.3d at 461–64.
No. 13-5875, United States v. Neal

28

“stating in writing the previous convictions to be relied upon.” Prosecutors are afforded 

discretion in determining whether to seek such enhancements and are limited only in that they 

may not base the decision on “improper factors.” United States v. LaBonte, 520 U.S. 751, 761–

62 (1997) (“Insofar as prosecutors, as a practical matter, may be able to determine whether a 

particular defendant will be subject to the enhanced statutory maximum, any such discretion 

would be similar to the discretion a prosecutor exercises when he decides what, if any, charges to 

bring against a criminal suspect.”). To the extent Neal’s argument relies upon § 851 granting 

improper discretion to prosecutors, his argument is foreclosed by both LaBonte and this Court’s 

decision in United States v. Crayton, 357 F.3d 560, 572 (6th Cir. 2004), which held that § 851 

was not an improper delegation of power to the executive branch because “[t]he discretion a 

prosecutor exercises in determining whether an enhanced statutory maximum applies under 

§ 851 is similar to the initial discretion the prosecutor has in deciding which charges to bring 

against a defendant, discretion that is obviously constitutional.”

Similarly, Neal’s arguments that a disparity between his sentence and those of either 

other defendants around the country or his co-defendant amounts to a violation of his Eighth and 

Fourteenth Amendment rights fails to establish constitutional violations under the wellestablished law of this Court. As to the Eighth Amendment’s prohibition of cruel and unusual 

punishment, the Sixth Circuit has clearly adopted the “narrow proportionality principle” set forth 

in the plurality opinion of Harmelin v. Michigan, 501 U.S. 957, 959 (1991). United States v. 

Marks, 209 F.3d 577, 583 (6th Cir. 2000). Accordingly, “only an extreme disparity between 

crime and sentence offends the Eighth Amendment.” Id.; United States v. Odeneal, 517 F.3d 

406, 414 (6th Cir. 2008). Under this standard, this Court has repeatedly found life sentences 

pursuant to § 841(b)(1)(A), based on two previous drug convictions, not to be “grossly 
No. 13-5875, United States v. Neal

29

disproportionate.” E.g., Graham II, 622 F.3d at 452–54; United States v. Flowal, 163 F.3d 956, 

963–64 (6th Cir. 1998); United States v. Hill, 30 F.3d 48, 50–51 (6th Cir. 1994); see also United 

States v. Thornton, 609 F.3d 373, 378–79 (6th Cir. 2010). Moreover, as to the Fourteenth 

Amendment’s guaranty of equal protection, Neal’s argument regarding the disparate nature of 

the sentences imposed on him and his co-defendant is similarly unavailing. This Court has 

previously concluded that the Constitution does not require proportionality in sentencing among 

co-defendants. Odeneal, 517 F.3d at 414 (citing United States v. Layne, 325 F.3d 464, 474 (6th 

Cir. 2003)).

Neal has failed to acknowledge this binding precedent in his briefing, much less attempt 

to distinguish his case. Instead, Neal has focused mostly on the factual findings made by a 

district court judge in the Northern District of Iowa regarding regional sentencing disparities 

based on prosecutors’ use of § 851. See United States v. Young, 960 F. Supp. 2d 881 (N.D. Iowa 

2013). Regardless of the effect of the factual findings Neal has relied upon,11 Young presented a 

different situation than we are confronted with here. In Young, the defendant was arguably 

subject to a doubling of his mandatory minimum under § 841 based on having one prior 

conviction for a drug offense. Young, 960 F. Supp. 2d at 883. However, based upon the Young

court’s recalculation of his criminal history, the defendant was no longer subject to the 

mandatory minimum at issue and, thus, no longer eligible for doubling under § 841. Id. at 883–

84. The remainder of the Young opinion was devoted to a discussion of the disparities in the use 

 

11 Neal has requested this panel take judicial notice of the Young decision. However, courts ordinarily may not take 

judicial notice of the factual findings of another court. Taylor v. Charter Med. Corp., 162 F.3d 827, 830 (5th Cir. 

1998) (citing cases from various circuits that hold “a court cannot take judicial notice of the factual findings of 

another court”); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 

248 (9th Cir. 1992) (“Generally, we will not consider facts outside the record developed before the district court. 

However, we may take notice of proceedings in other courts . . . if those proceedings have a direct relation to 

matters at issue.”) (internal quotation marks and citations omitted) (emphasis added). While courts may take 

judicial notice of government statistics such as United States census data, see Hollinger v. Home State Mut. Ins. Co., 

654 F.3d 564, 571–72 (5th Cir. 2011), here Neal’s argument, based on the statistical findings of another court, is 

foreclosed by our precedent.
No. 13-5875, United States v. Neal

30

of § 851 enhancements by prosecutors across the country. Id. at 885–909. While Young may be 

instructive by revealing such disparities, it provides no legal basis for vacating Neal’s sentence.

V. CONCLUSION

For the reasons above we AFFIRM the district court’s denial of Neal’s motions to 

suppress, denial of Neal’s motion for a Franks hearing, and the sentence imposed on Neal.
No. 13-5875, United States v. Neal

31

KAREN NELSON MOORE, Circuit Judge, concurring. It is a close call whether 

Agent Nocera’s independent corroboration of the informant’s tips, in combination with the other 

information included in the affidavit, was sufficient to support a finding of probable cause. I do 

not reach a conclusion on whether probable cause existed to support the warrant, however, 

because I agree that the good-faith exception to the exclusionary rule applies. Accordingly, I 

concur in the lead opinion with respect to the discussion of the good-faith exception in Part II, 

the Franks issue in Part III, and the sentencing issue in Part IV.
No. 13-5875, United States v. Neal

32

Rogers, Circuit Judge, concurring in the judgment. This case is a far cry from Judge 

Moore’s noted hypothetical in United States v. Dyer, 580 F.3d 386 (6th Cir. 2009), and probable 

cause existed to issue the search warrant authorizing agents to search Mr. Neal’s house at 

637 South Beaman Street. Through an extensive investigation that included video surveillance 

of the house for more than two weeks, Agent Nocera independently corroborated the details that 

the informant had provided to law enforcement officials. In addition, Agent Nocera averred that 

“there has been an inordinate amount of visitors to this house which, based on my training and 

experience, is indicative of a house used for drug trafficking purposes. This is particularly true 

of a house, such as this one, which does not appear to be used as a residence.” Although many 

of the facts that Agent Nocera corroborated are not inherently incriminating, corroboration of 

even non-incriminating facts can be sufficient to establish probable cause. See Illinois v. Gates, 

462 U.S. 213, 244 (1983). Under a totality of the circumstances analysis, Agent Nocera’s 

substantial corroboration of the informant’s statements supports the conclusion that the U.S. 

Magistrate Judge’s warrant was based on probable cause. 

However, because the good faith exception to the exclusionary rule applies in this case 

for the reasons set forth in the majority’s opinion, it is unnecessary to reach the issue of whether 

probable cause exists. Therefore, I concur in the judgment.