FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 12, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 09-12466 and 09-12651

Non-Argument Calendar

________________________

D. C. Docket No. 08-00007-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES WILLIAM BROWN,

a.k.a. James Brown,

Defendant-Appellant.

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Appeals from the United States District Court

for the Southern District of Georgia

_________________________

(March 12, 2010)

Before DUBINA, Chief Judge, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
Appellant James William Brown appeals his 296-month sentence and

convictions for possession and receipt of child pornography, in violation of

18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(a)(2). He argues that the district court

(1) erred by denying his motion to suppress; (2) abused its discretion by denying

his motion for a psychological evaluation at government expense, and (3) imposed

an unreasonable sentence.

I.

Brown first argues that items discovered in his storage unit should have been

suppressed because the government did not apply for a warrant to search the

storage unit; thus, the court improperly issued such a warrant. Brown also argues

that the search warrant was improperly issued because the requesting officer

recklessly or intentionally failed to inform the court of the “extreme personal

animosity” that informants Jason Bunce and Jason Day had against Brown. Brown

notes that a defendant is entitled to a hearing on the veracity of a search warrant

affidavit where the defendant establishes that false information was knowingly or

recklessly included in it. Brown further argues that the exception to the

exclusionary rule for warrants obtained in good faith should not apply to the

present case because the officer recklessly failed to request a search warrant for the

storage unit.

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Second, Brown argues that the district court erred by failing to order a

psychological evaluation at government expense, because an evaluation was

necessary for the court to form a proper understanding of his mental condition in

fashioning an appropriate sentence.

Finally, Brown argues that his sentence was unreasonable and greater than

necessary to satisfy the statutory objectives of 18 U.S.C. § 3553(a), in light of his

history and characteristics, the nature of his offense, the guidelines calculation, and

the other sentencing factors. Brown submits that the pornography guideline

enhancements in U.S.S.G. § 2G2.2, applied in this case, are arbitrary and

unreasonable because they are not supported by any empirical evidence and

produced an “unreasonable and irrational” sentence of 296 months’ imprisonment.

Brown also discusses how the application of each of the § 3553(a) factors

demonstrates that the sentence he received was substantively unreasonable.

II.

“Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). Further, “all facts are construed in the light most

favorable to the prevailing party below.” Id. We review de novo whether the

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Leon good faith exception to the exclusionary rule applies to a search. United

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States v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002). The underlying facts

supporting that determination are binding on appeal, however, unless clearly

erroneous. Id. We review de novo a district court’s determination of probable

cause. United States v. Butler, 102 F.3d 1191, 1199 (11th Cir. 1997).

We review a district court’s denial of a motion for psychiatric services

pursuant to 18 U.S.C. § 3006A(e)(1) for abuse of discretion. United States v.

Rinchack, 820 F.2d 1557, 1563 (11th Cir. 1987).

Finally, because we review only a defendant’s final sentence for

reasonableness in light of the § 3553(a) factors, and not the Sentencing Guidelines

themselves, Brown’s challenge to U.S.S.G. § 2G2.2 as arbitrary is not subject to

review for reasonableness. See United States v. Dorman, 488 F.3d 936, 938 (11th

Cir. 2007) (holding that the reasonableness standard applies to the final sentence,

not to each individual decision made during the sentencing process). We review

the district court’s legal conclusions de novo. United States v. McDowell, 250 F.3d

1354, 1361 (11th Cir. 2001).

III.

A. Motion to Suppress

United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984). 1

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The Fourth Amendment proscribes unreasonable searches and seizures. U.S.

Const. amend. IV. For a search warrant to be valid, it must be supported by

probable cause. Id. (stating that “no Warrants shall issue, but upon probable

cause”). Probable cause to support a search warrant exists when the totality of the

circumstances allows the conclusion that “there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462

U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).

“[T]he duty of a reviewing court is simply to ensure that the [issuing judge]

had a substantial basis for concluding that probable cause existed.” Gates, 462

U.S. at 238–39, 103 S. Ct. at 2332 (internal quotation marks and alterations

omitted). Brown does not provide any legal support for his conclusion that a

search warrant for a specified location, in this case a storage unit, is invalid unless

the supporting affidavit explicitly states that the application seeks a search warrant

for the specific location. It was unnecessary for the search warrant affidavit to

specifically request permission to search Brown’s storage unit for the court to

determine that probable cause supported the warrant to search his storage unit. The

information in the affidavit concerning the presence of child pornography in

Brown’s storage unit demonstrated a “fair probability” of finding evidence of a

crime; therefore, there was probable cause to search his storage unit.

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Moreover, there is a presumption of validity with respect to the affidavit

supporting a search warrant. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct.

2674, 2684 (1978). The Fourth Amendment is violated if the warrant is obtained

by using a false statement made intentionally or recklessly. Id. at 155–56, 98 S. Ct.

at 2676. To be entitled to an evidentiary hearing on a motion to suppress based on

alleged misrepresentations or omissions in a search warrant affidavit (a Franks

hearing), a defendant must make a substantial preliminary showing that the affiant

made false statements, either intentionally or with reckless disregard for the truth,

pointing specifically to the portions of the affidavit claimed to be false, and that the

false statements were necessary to the finding of probable cause. Id. at 171–72, 98

S. Ct. at 2684. Intentional or reckless omissions by an affiant in a search warrant

affidavit will invalidate a warrant “only if inclusion of the omitted facts would

have prevented a finding of probable cause.” Madiwale v. Savaiko, 117 F.3d 1321,

1327 (11th Cir. 1997).

Brown was not entitled to a Franks hearing concerning Investigator

Gonzalez’s alleged omissions from his warrant application because he has not

shown that the facts omitted from the warrant application concerning the animosity

among Bunce, Day, and Brown were necessary to the finding of probable cause.

Even though the statements of Bunce and Day, on which the police based its

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application for a search warrant, were not independently corroborated by the

police, the statements did corroborate one another and bore other indicia of

reliability. Consequently, there was probable cause to issue the search warrant.

Finally, under Leon, “searches pursuant to a warrant will rarely require any

deep inquiry into reasonableness, for a warrant issued by a magistrate normally

suffices to establish that a law enforcement officer has acted in good faith in

conducting the search.” Leon, 468 U.S. at 922, 104 S. Ct. at 3420 (internal

quotation marks and citations omitted). Nevertheless, “it is clear that in some

circumstances the officer will have no reasonable grounds for believing that the

warrant was properly issued.” Id. at 922–23, 104 S. Ct. at 3420. Leon’s good faith

exception, therefore, does not apply to the following situations:

(1) where the magistrate or judge in issuing a warrant was misled by

information in an affidavit that the affiant knew was false or would

have known was false except for his reckless disregard of the truth;

(2) where the issuing magistrate wholly abandoned his judicial role . .

. ; (3) where the affidavit supporting the warrant is so lacking in

indicia of probable cause as to render official belief in its existence

entirely unreasonable; and (4) where, depending upon the

circumstances of the particular case, a warrant is so facially

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deficient—i.e., in failing to particularize the place to be searched or

the things to be seized—that the executing officers cannot reasonably

presume it to be valid.

Martin, 297 F.3d at 1313 (internal quotation marks omitted).

This “good-faith inquiry is confined to the objectively ascertainable question

whether a reasonably well trained officer would have known that the search was

illegal despite the magistrate’s authorization. In making this determination, all of

the circumstances . . . may be considered.” Leon, 468 U.S. at 922 n.23, 104 S. Ct.

at 3420 n.23.

We conclude from the record that Bunce and Day’s statements, as included

in the warrant affidavit, contained numerous, consistent details. These details

indicated the reliability of their statements and enough indicia of probable cause,

so that the officer’s reliance upon the warrant was not entirely unreasonable.

Consequently, even if there was no probable cause to issue the warrant, the

evidence was admissible under the good faith exception to the exclusionary rule.

B. Psychological Evaluation

“Counsel for a person who is financially unable to obtain investigative,

expert, or other services necessary for adequate representation may request them in

an ex parte application.” 18 U.S.C. § 3006A(e)(1). A defendant must make a

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showing that he may have a plausible insanity defense in order to obtain the

services of a psychiatrist. See Rinchack, 820 F.2d at 1563-64. A district court

should consider a defendant’s rehabilitative and medical needs when imposing an

incarcerative term. 18 U.S.C. § 3553(a)(2)(D).

Because Brown affirmatively asserted that he was competent to stand trial

and did not present an insanity defense, the court had an adequate basis to

determine that Brown was not entitled to psychiatric services pursuant to 18 U.S.C.

§ 3006A(e)(1). Furthermore, the record demonstrates that the court properly

considered Brown’s rehabilitative and medical needs in determining an appropriate

sentence, considering (1) the extensive medical records submitted to the court, (2)

testimony presented at sentencing concerning Brown’s psychiatric history, and (3)

the court’s comments at sentencing concerning his personal history and medical

needs.

C. Reasonableness

We find Brown’s argument that the enhancements under § 2G2.2 of the

Sentencing Guidelines are arbitrary unavailing, because defining and fixing

penalties for federal crimes are congressional, not judicial, functions. See United

States v. Evans, 333 U.S. 483, 486, 68 S. Ct. 634, 636 (1948); see also Mistretta v.

United States, 488 U.S. 361, 377–78, 109 S. Ct. 647, 658 (1989) (noting that

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Congress has given the Sentencing Commission the discretion to determine the

relative severity of federal crimes, assess the relative weight of the offender

characteristics, and decide which types of crimes are to be considered similar for

the purposes of sentencing). It is true that, at least with respect to certain

guidelines (e.g. crack cocaine), sentencing courts may disagree with, and therefore

not follow, a guidelines range or method of calculation perceived to be arbitrary or

excessive. See, e.g., Spears v. United States, 129 S. Ct. 840, 843–44 (2009)

(holding that a district court has authority to reduce the sentence based on a policy

disagreement with the crack cocaine guidelines). Nevertheless, district courts are

not required to do so.

Insofar as Brown challenges the district court’s decision to sentence him

within the guideline range rather than impose a downward variance, his sentence is

subject to review for reasonableness. United States v. Talley, 431 F.3d 784,

785 (11th Cir. 2005). We review the reasonableness of a sentence through a

two-step process using a deferential abuse-of-discretion standard. United States v.

Pugh, 515 F.3d 1179, 1189–90 (11th Cir. 2008). First, we look at whether the

district court committed any significant procedural error, such as miscalculating

the advisory guidelines range, treating the guidelines range as mandatory, or failing

to consider the 18 U.S.C. § 3553(a) factors. Id. at 1190.

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Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary” to comply with the purposes of

sentencing listed in § 3553(a)(2), namely, to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, deter criminal

conduct, protect the public from future criminal conduct by the defendant, and

provide the defendant with needed educational or vocational training or medical

care. 18 U.S.C. § 3553(a)(2). The sentencing court must also consider the

following factors in determining a particular sentence: the nature of the

circumstances of the offense and the history and characteristics of the defendant,

the kinds of sentences available, the applicable guideline range, the pertinent

policy statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. See

18 U.S.C. § 3553(a)(1), (3)–(7). In considering the § 3553(a) factors, the district

court need not discuss each of them individually. Talley, 431 F.3d at 786. Rather,

“an acknowledgment by the district court that it has considered the defendant’s

arguments and the factors in section 3553(a) is sufficient.” Id.

Second, we examine whether the sentence is substantively reasonable.

Pugh, 515 F.3d at 1190. We consider the totality of the circumstances and

evaluate whether the sentence achieves the sentencing purposes stated in § 3553(a).

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Id. at 1191; Talley, 431 F.3d at 788. A sentence may be substantively

unreasonable if a district court unjustifiably relied on any one § 3553(a) factor,

failed to consider pertinent § 3553(a) factors, selected the sentence arbitrarily, or

based the sentence on impermissible factors. Pugh, 515 F.3d at 1191–92.

Although now advisory, the guideline range is one of the § 3553(a) factors

to be considered by the sentencing judge. See 18 U.S.C. § 3553(a)(4). We have

recognized that “the use of the Guidelines remains central to the sentencing

process” and stated that “ordinarily we would expect a sentence within the

Guidelines range to be reasonable.” Talley, 431 F.3d at 787–788.

Brown does not expressly challenge the application of the Guidelines. Thus,

no procedural issue is raised based on miscalculation of the Guidelines. Moreover,

because the district court imposed a sentence that reflects the nature and

circumstances of the offense and the other considerations stated in § 3553(a), the

court did not commit any procedural error in sentencing Brown. See Pugh, 515

F.3d at 1190. Additionally, based on the facts in this case and our expectation that

a sentence within the Guidelines range would ordinarily be reasonable, we

conclude that the district court did not abuse its discretion in sentencing Brown to

296 months’ imprisonment or impose a sentence that was substantively

unreasonable.

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IV.

For the aforementioned reasons, we affirm Brown’s convictions and

sentences.

AFFIRMED.

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