* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 12 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 97-5201

v. (D.C. No. 96-CR-114-K) STEPHEN W. WILSON, (N.D. Okla.) Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Defendant-Appellant, Mr. Stephen Wilson, was charge d with conspiracy to manufacture marijuana; manufacturing and possessionwith the intent to distribute marijuana; maintenance of a facility to facilitate manufacture and distribution of1 Because we find Appellant’s Pro-Se Supplemental Brief redundant and

unnecessary, we deny both his Motion for Leave to File a Pro-Se Supplemental Brief and his Motion for Leave to File Corrections in his Supplemental Brief. We have reviewed Appellant’s Motion for Substitution of Counsel Due to Ineffective Assistance and find it to be without merit. Because we have considered and disposed of the issue Appellant complains his counsel has not raised, we deny Appellant’s Motion for Substitution of Counsel. -2- marijuana; criminal forfeiture; aiding and abetting ; and possession of false identification documents. Defendant filed a Motion to Suppress evidence obtained in three separate searches, alleging that the evidence was seized in violation of his Fourth Amendment rights. Defendant’s motion was granted in part and denied in part. See R., Vol. I, Doc. 38 at 18. Defendant then entered into a plea agreement which provided that he plead guilty to the manufacture of marijuana by production, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and aiding and abetting, in violation of 18 U.S.C. § 2. Also pursuant to the plea agreement, the other charges against Defendant were dismissed. See R., Vol. I, Doc. 65: Appellee’s Br. at 2. The district court s entenced Defendant to sixty months imprisonment. Defendant appeals the district court’s denial of hi s motion to suppress evidence seized pursuant to a search warrant. 1 He contends that the warrant was obtained through the use of an affidavit which cont ained false and misleading statements. Defendant argues that the court erred in concluding that the warrant contained probable cause to search after several fa lse and misleading statements-3-

were redacted from the affidavit. See Appellant’s Br. at 1. Defendant also appeals the district court’s refusal to apply U.S. Sentencing Guideline [U.S.S.G.] § 5C1.2 to his sentence even though the presentence report indicated that Defendant met the criteria for this adjustment. Se e R., Vol. II at 12-13. We review the district court’s determination that adefendant is not eligible for a sentence reduction pursuant to section 5C1.2 for clear error. See United States v. Roman-Zarate , 115 F.3d 778, 784 (10th Cir. 1997); United States v. Acosta-Olivas , 71 F.3d 375, 378 n.3 (10th Cir. 1995); United States v. Adu , 82 F.3d 119, 124 (6th Cir. 1996). “‘We believe that t he district court’s determination that a defendant is not eligible for the reduction permitted by sec[tion] 5C1.2 ought to be governed by the clearly erroneous standard. The court’s determination . . . will often depend on cr edibility determinations that cannot be replicated with the same accuracy on appe al.’” Acosta-Olivas , 71 F.3d at 378 n.3 (quoting United States v. Rodriguez , 69 F.3d 136, 144 (7th Cir. 1995)). The district court’s decision in this case was base d on Defendant’s credibility. See R., Vol. I, Doc. 65 at 5 (“The Court finds the def endant did not provide truthful information concerning the offense to the Government before the time of the sentencing hearing.”). The court’s determinati on that Defendant was not volunteering the complete truth about his acts is s upported by evidence in the record. See id. , Vol. I, Doc. 63 at Ex. B (Defendant’s statement avowing that all-4-

of the marijuana found was intended for personal us e for himself, his brother, and his father; and that the false documentation found in his possession was to obtain rental property); Vol. VIII at 7 (Defendant stipulates to quantity of 800 plants). We hold that the decision to refuse Defendant this adjustment to his sentence was not clearly erroneous. See United States v. White , 119 F.3d 70, 74 (1st Cir. 1997); United States v. Wilson , 114 F.3d 429, 432 (4th Cir. 1997); Adu , 82 F.3d at 124-25. “We must review [a] magistrate’s finding of probabl e cause to issue [a] search warrant with ‘great deference.’” United States v. Orr , 864 F.2d 1505, 1508 (10th Cir. 1988) (quoting Illinois v. Gates , 462 U.S. 213, 236 (1983)). “We do not review a magistrate’s determination of probable cause de novo ; we decide whether the evidence viewed as a whole provided a s ubstantial basis for the Magistrate’s finding.” United States v. Richardson , 86 F.3d 1537, 1545 (10th Cir.), cert. denied , ____ U.S. ____, 117 S. Ct. 588 (1996) (internal q uotations omitted); see also Gates , 462 U.S. at 236-37; United States v. Mills , 29 F.3d 545, 547 (10th Cir. 1994). The substantial basis test i s satisfied if “there is a fair probability that evidence of a crime will be found” during the search. United States v. Reyes , 798 F.2d 380, 382 (10th Cir. 1986); see also Gates , 462 U.S. at 236. When reviewing the denial of a motion to supp ress, we view the evidence in the light most favorable to the government. See United States v. Villa-Chaparro ,-5-

115 F.3d 797, 800-01 (10th Cir.), cert. denied , ___ U.S. ___ , 118 S. Ct. 326 (1997); United States v. Anderson , 114 F.3d 1059, 1063 (10th Cir. 1997). Defendant contends that after the false statements were redacted from the affidavit supporting the warrant and the affidavit’ s omissions of fact were corrected there was insufficient evidence of probab le cause to issue the warrant. If a defendant establishes that false statements in cluded in an affidavit supporting a search warrant were made knowingly or with reckle ss disregard for the truth, and that the false statement was necessary to the f inding of probable cause, the evidence seized during the resultant search must be excluded to the same extent that exclusion is warranted when probable cause is lacking on the face of the affidavit. See United States v. Kennedy , 131 F.3d 1371, 1376 (10th Cir. 1997) (citing Franks v. Delaware , 438 U.S. 154, 155-56 (1978)). Additionally, this court has held “that the standards of ‘deliberate f alsehood’ and ‘reckless disregard’ set forth in Franks apply ‘to material omissions, as well as affirmati ve falsehoods.’” Kennedy , 131 F.3d at 1376 (quoting Stewart v. Donges , 915 F.2d 572, 582 (10th Cir. 1990)). However, to be granted a motion to suppress pursuant to the holding in Franks , the defendant must prove that the affidavit at is sue “cannot support a finding of probable cause withoutthe allegedly false information.” United States v. Valencia , 24 F.3d 1106, 1109 (9th Cir. 1994); see United States v. Morehead , 959 F.2d 1489, 1498 (10th Cir. 1992); Stewart , 915-6-

F.2d at 582. We agree with the district court that the corrected affidavit was sufficient for the magistrate judge to find probable cause to issue a search warrant. See R., Vol. I, Doc. 38 at 2-10. The affiant’s statement t hat during an aerial flyover he viewed marijuana plants on land where Defendant res ided and the other statements in the affidavit that Defendant exhibite d behavior consistent with those involved in the production of marijuana established a fair probability that a crime was being committed and support a finding of probab le cause. See United States v. Emmons , 24 F.3d 1210, 1215 (10th Cir. 1994) (holding thatdiscovery of large quantities of marijuana on the defendant’s propertywas enough to support finding of probable cause); Morehead , 959 F.2d at 1498 (holding that “officers’ observations of marijuana plants in the trailer and shop building adjacent to the [defendant’s] residence” provided a substantial bas is for the conclusion that there was a fair probability that evidence of a crime wou ld be found); Mason v. United States , 719 F.2d 1485, 1488 (10th Cir. 1983) (holding that report of suspicious activity, defendants acting nervously, and the disc overy of drug paraphernalia in the defendants’ rooms established probable cause); United States v. Ramos , 923 F.2d 1346, 1351 (9th Cir. 1991) (“Probable cause to justify a search warrant exists when there is a sufficient showing that incr iminating items are located on the property to which entry is sought.”).2 We also note that the warrant satisfied Oklahoma law. See22 Okla. Stat. § 1223;

Bauwens v. State , 657 P.2d 176, 178 (Okla. Crim. App. 1983); Doyle v. State , 320 P.2d 727, 729 (Okla. Crim. App. 1958); Cook v. State , 132 P.2d 349, 350-51 (Okla. Crim. App. 1942). -7- Defendant’s claim that the warrant was issued witho ut probable cause because it failed to state that his common-law wife was the owner of the real property to be searched is not valid. The districtcourt noted that attachments to the warrant included the county records noting the owner of the property. See R., Vol. I, Doc. 38 at 7; see also id. , Doc. 7 at Ex. 1. Therefore, any “omission” of this information in the affidavit supporting the wa rrant or the warrant itself is immaterial because the issuing magistrate judge had that information at the time that he signed the warrant. 2 We find no error in the district court’s conclusion s of law or fact. Therefore, Defendant’s conviction and sentence are AFFIRMED

. Entered for the Court

Monroe G. McKay Circuit Judge