NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0155n.06 No. 09-5970 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MI CHAEL

KEL L EY, Def endant- Appellant. ) ) ) ) ) ) ) ) ) On Appea l from the United States Di strict Court for the Easter n District of Tenne ssee

Be fore : MERRI TT, B OGGS, and CL AY, Circuit J udg es.

BO GGS, Circuit J udg e. Michae l Kelley pleade d g uilty to conspirac y to distribute

more than five kilogr ams of coca ine and conspirac y to commit money launder ing. He was sentenc ed
to 188 months of i mprisonment. As permitted by his plea ag ree ment, he appeals t he denial of hi s p re t ri al motions to dismiss counts of the indictment ag ainst him and suppress evidenc e from a wireta p and sea rche s of his car

and home. He also appe als his sentence . We affir m.

I Michae l Kelley

was pa rt of a gr oup of individuals, arre sted in 2008, who wer e involved in the distribution of coca ine from Chattanoog a, Tenne ssee to sell in Atlanta, Geor g ia. R.360 at 8–9. Police beca

me awa re of Kelley due to his ca l l s t o De m arc us Akins, on whom the police had a wi re t ap . Ba s ed on evidenc e g ather ed in the surveillance of Akins and others, Tenne ssee policeNo. 09-5970

United States v. Kelley reque sted and obtained a wireta p o n Kelley ’s phones. R.157 at 3 (re producing the aff idavit in support of the wire tap). I n monitoring t h e wi reta

p, police overhe ard a call in which Kelley communicated that he would be bring ing $69,500 to Akins. After his arr est, Kelley conce ded in his plea ag ree ment that he wa s bring ing the money to Akins to pay

him for three kilogr ams of coc aine. Police stationed two office rs, along with a drug -sniffing dog , on the road wher e Kelley was driving

. They wer e told to pull Kelley over if they noticed a traff ic violation. R.288 at 24, 29–30. Offic er Ritt er observe d Kelley following a van too closely , in violation of Tenne ssee l aw , and initiated a traff

ic stop. During the stop, Ritt er observe d Kelley acting nervous. He asked if he could

sear ch the car , and Kelle y re fu s ed

. Offic er Thompson arr ived with the dog at this time and conducte d a dog -sniff of

the ca r. The dogaler

ted at the f

ront of Ke lley ’s vehicle

. Ba sed on his pr obable- cause belief that Kelley had drug s in his car , Ritt er conducte d a patdown sear ch of Ke lley . Ritt er f elt a bulg e in Kelley ’s pocke t. When he asked w hat it wa s, Kelley stated that it was money to purcha se supplies for his business. The pocket contained about $1,570. The off icer s then sear ched K elley ’s car . I n the trunk they found a ba g containing plastic bag s that held $69,500. Kelley told the office rs that the money was for purcha sing business supplies. R.288 at 50–51. The off

icer s seized the money

from the trunk a

nd the money

from Ke lley ’s pocke t, and told him that if he could prove that the m oney was for leg itimate purposes within three day s, they would return it. Kelley

was then r elea sed with a wa rning citation for f

ollowing too close ly

. Kelley later obtained a contra ct from a local businessman stating that he was lending Kelley $69,500 for improvements to Kelley ’s business. Kell ey P S R at 8. The two men backdated the - 2 -No. 09-5970

United States v. Kelley

co n t ra ct s o t hat it would prec ede the traff ic stop. A Chattanoog a city councilman put Kelley i n contac t with a former co-w orker who acc epted pay ment from Kelley to put a backdated notary stamp

on the contra ct. Kelley then g ave the contra ct to police in order to have the $69,500 returne d. The police did not return the money . On Marc h 18, 2008, Detec tive Andy Br owne soug ht and obtained a s ea rc h wa rr ant for Kelley ’s house. R.129-2. Detec tive Br owne based his aff id avit for the war

rant on the aboveme ntioned fac ts as well as additional interce pted phone calls that sug g ested individuals wer e coming to Kelley ’s house to purcha se or drop off drug s. During the sear ch of Kelley ’s home, ag ents found and seized six ounces of coca ine, sever al thousand dollars, a high- volume money counter , and drug -traf ficking para

pherna lia. On May 13, 2008, a g rand jury char g ed Kelley and six other individuals with conspirac y to d i stribute and of possession with the intent to distribute more than five kilogr ams of cocai n e hy drochloride , in violation of 21 U.S.C. §§ 8 46 and 841(b)( 1)(A) (Count One)

. Kelley was also char g ed wi th three counts of money launder ing, in violation of 18 U.S.C. § 1956 (Counts Two, Three , and Six ); two counts of conspirac y to obstruc t a g rand- jury investiga tion, in violation of 18 U.S.C. § 1512(c) (2) (Counts Four and Seven); and one count of distribution and of possession with intent to dist ribute coc aine, in violation of 21 U.S.C. § 841 (a)( 1), (b) (1)( C) (Count Nine). Be fore trial, Kelley moved to di s m i s s Counts Two, Three , Four , Six , and Seven of the indictment. R.125; 126. He also moved to suppr ess evidenc e obtained throug h the wireta p of his phones, the sear ch of his car , and the sear ch of his home. R.127; 1 2 8 ; 1 2 9

. After conducting a hear ing rela ted to the car sear ch, a mag istrate judge rec ommended denial o f al l o f Kelley ’s - 3 -No. 09-5970

United States v. Kelley suppression motions. The district court adopted the m agi s t rate judge ’s repor ts and

rec ommendations, deny ing the motions. Ke l l ey pleade d g uilty to Counts One and Two of the indictment, pursuant to a p l ea ag ree ment. Counts Three, F our, Six , and Seven w ere later dismissed. At Kelley ’s sentenc ing, the judge added a two-leve l enhanc ement for obstruction of justice, based on Kelley ’s use of the backdated contra cts to seek reimburse ment of the $69,500. Kelley was sentenc ed to 188 months of i mprisonment for Count One and Count Two of the i ndictment, to be

serve d concur

rently , and five y ear s of supervise d rele ase. On appea l , Ke l l ey ar gues that the district court err ed in ref using to g rant his motions to dismiss Counts Two, Three , Four , Six , and Seven of the indictment and his motions to suppress evidenc e g ather ed from the wireta p on his p h o n e an d t h e sear ches of his car and home. He also appea ls his sentenc e; specific ally , he appe al s t h e two-leve l enhanc ement the sentenc ing court imposed for obstruction of justice and its deter minat i o n of drug quantity

. He also challeng es the

rea sonablene ss of his sentence

.

I I A Kelly arg ues on appea l that the trial court err ed in deny ing his motion to dismiss Counts Two, Three , Four , Six , and Seven of the indictment.

- 4 -No. 09-5970

United States v. Kelley Wit h reg ard t o t h e district court’s leg al conclusions, we revie w the denial of a motion to dismiss an indictment de novo . See, e.g. , United States v. Penne y , 576 F.3d 297, 303 (6th Cir. 2009). All five counts of the indictment that Kelley challeng es trac k the lang uag e of the statute and
set forth a suffi ci en t set of fac ts to prove a violation of the statute; there fore , these counts wer e leg ally sufficie nt. See, e.g. , United St ates v. Ande rson , 605 F.3d 404, 411 ( 6th Cir. 2010); United States v. Landham , 251 F.3d 1072, 1079 (6th Cir. 2001). The trial court did not err when it denied Kelley ’s motion to dis miss thos e counts of the indictment.

B Kelley arg ues that the district court err ed when it overr uled his motions to suppress evidenc e that was found throug h a wireta p of his phone, during a sear ch of his car , and during a sear ch of his home. Kelley also arg ues that the district court err ed in deny ing him a Franks hear ing on this issue. 1 When revie wing a motion to suppress, we revie w the district court’s leg al conclusions de

novo and its fac tual finding s for clea r err or. Penne

y , 576 F.3d at 306 (citing United States v. Smith , 5 1 0 F.3d 641, 647 (6th Cir. 2007)). We view the evidenc e in the light most likely to s u p p o rt t h e decision of the district c ourt. Ibid. I n his motion b el o w, Ke lley arg ued that the g overnme nt failed to overc ome the statutory presumption ag ainst wireta ps. Spe c if ic a ll y , th e mo tion arg ued that the g overnme nt failed to establish

Franks v. D elaware , 438 U.S.154 (1978). 1 - 5 -No. 09-5970

United States v. Kelley

nece ssity with r eg ard to K elley (as opposed to the other individuals for whom the g overnme nt ha d

rec eived wir etap wa

rra nts previously). The aff idavit in support for the war rant on Kelley ’s phones stated that, afte r Akins’s phone

was tapped, “ag ents immediately beg an interce pting phone calls betwee n Akins and the cell phones of Michae l Kell[e]y

. . . . The interce pted conver s at i o n s . . . discuss[ed] larg e amounts of illega l

n arc otics and larg e sums of U.S. curr ency .” The aff iant also descr ibed sever al calls interce pt ed betwee n Kelley and Akins on Fe bruar y 3, 2008, during which Kelley asked Akins to call him on his “other phone,” the two discussed a “four J erse y ,” which in the aff iant’s experience was a term used in drug deals, and they tal k ed about counting money . The 47-pag e affidavit goes on to discuss in detail why the g overnme nt neede d to put a wireta p on Kelley ’s phone, stating, that “the interce ption of wire communications

. . . is the only ava i l ab le investiga tive technique [wit h] a rea sonable likelihood of reve aling and secur ing admissible evidenc e,” and explaining the limit ations of all other investiga tive techniques, including phy sical su rv ei l lance , confide ntial source s, infiltration by underc over of

fice rs. The nece ssity require ment “re quires a deter mination that other means of obt ai n i n g information, such as phy sical surveillance , use of informants, and other in v es t i gative techniques, would be unsucce ssful.” United States v. Alfano , 838 F.2d 158, 163 (6th Cir. 1988). Six th Circuit

case law does not interpre t the nece ssity require ment to demand a s h o wi ng of the “absolute impossibi lity of all other means;” rathe r, a “re asonable statement of the consideration or use of other investiga tive means is ade quate.” Id. at 164.

- 6 -No. 09-5970

United States v. Kelley I n Kelley ’s case , the wireta p aff idavit provided suffic ient detail about alter native means of obtaining information and also identified the re as ons why the wireta p was the best of those al t er natives. The district court was not in err or in deter mining that the wireta

p aff i d av i t wa s adequate and suff

iciently demonstrated ne cessity

. 2 Kelley ’s motion for a Franks hear ing was proper ly denied

. Franks holds that wher e a defe ndant makes a “substantial preliminary showing ” that a false statement that was m ad e knowing ly , rec klessly , or wit h an intentional disreg ard for t he truth, is included by the affiant i n a

sear ch war

rant aff i d avit, and that the false statement was nece ssary to the issuing mag istrate’s finding of probable cause , then the defe ndant is entitled to a hear ing. Franks , 438 U.S. at 155–56. This showin g m u s t be “ac companied by an offe r of proof

. . . . Affida vits or sworn or otherwise reliable statements of witnesses should be furnished, or their absenc e satisfac torily explained

. . . .” Id. at 171. Kelley alleg ed that the aff iant’s statement that “Ke lley , Akins, L ewis and their associate s have extensive experience traff icking drug s and have numerous arr ests for drug violations” was false

as to him. Howeve r, this claim was not supported by an offe r of proof. Fur ther, the statement, even if it was fa lse, was not nec essar y to the issuing mag istrate’s finding of proba ble ca use. Ther efor e, Kelley ’s motion for a Franks hear ing w as prope rly denied.

Kelley also arg ued that the wireta p on his c o-def

endant Akins’s phone was illega l, a nd, as 2 the “fr uit” of that wireta

p, the wireta

p on Kelley ’s phone was i l l ega l, as well. Kelley ’s basis for thinking the wireta

p on Akins’s phone was illega l is that the war rant used to obtain a wireta p on his phone came from a Tenne ssee court, but Akins l i v ed in Geor g ia. Be cause this arg ument was not raised below, we revie w it only for plain err or, but it would fail under any standard. A wireta p may be lawfully soug ht in either the location of a tapped phone or the orig inal listening post. See United States v. Johnson , No. 08-5911, 2010 WL 3736881, at *2–3 (6th Cir. Sept. 17, 2010). - 7 -No. 09-5970

United States v. Kelley

C Kelley next arg ues that the district court err ed in overr u l ing his motion to suppress the evidenc e obtained in the sear ch of his car . Kelley ’s motion below disputed the validity of the traff ic stop and the basis for

the sea rch. Kelley was stopped when the office r not iced that Kelley was following too closely behind another vehicle. The office r testified that Kelley was following within three to five fee t of the other vehicle, when, at about 55 mph, the intervening distance should have been approximately fifty fee t. The office rs did not sear ch Kelley or his car until the drug -sniffing dog alert ed , a positive indication that drug s wer e in the vehicle. O nce the dog aler ted, the office rs conducte d a pat-down

sear ch of Kelley for the purpose of “off icer [] safe ty .” Offic ers Ritt er and Thompson then conducte d

a sea rch of Kelley ’s ca

r, including the trunk. Kelley first arg ues that the traff ic stop was i l l ega l

. However, the office r testified that he witnessed Kelley violate a Tenne ssee traff ic law. An office r possesses the probable cause nece ssary to conduct a traff

ic stop when he observe s a driver violate a traff ic law. W hren v. United States , 517 U.S. 806, 810 (1996). The mag istrate judg e found O ffice r Ritter’s testimony cre dible, and Ke lley does not prese nt any arg ument that such a finding was in err or. Kelley ar gu es t hat there was no leg itimate basis for the tra ffic stop, but he doe s not give any rea son why Ritt er’ s testimony should have been disbelieved. There fore , the district court’s holding that there was probable cause for the initial traffic stop wa s proper .

- 8 -No. 09-5970

United States v. Kelley Kelley next ar g ues that the police sear ch of his car w as illeg al, ar g uing tha t the dog aler ted only at the front of the car and that there fore there was no basis for sear ching his trunk. Howeve r, it i s we l l s et t l ed t hat an aler t from a trained dog provides probable cause for a sear ch for drug s. United States v. Hill , 195 F.3d 258, 273 (6th Cir. 1999). Fur ther, the sear ch based on such probable

cause may

be of the entire c ar, inc luding the tr unk. United St ates v. Burnett , 791 F.2d 64, 67 ( 6th Cir. 1986) (“[I ]f probable cause justifies the s ear ch of the l awf ully stopped vehicle, it justifies the

sear ch of ever

y part of the vehicle and t h e contents that may conce al the object of the sear ch.”) (citing United States v. Ross , 456 U.S. 798, 825 (1982))

. The mag istrate judge ’s finding that Offic er Thompson’s dog was cer

tified to de tect drug s was not disputed, and Six th Circ uit c ase law clea rly demonstrates t hat the sear ch of an entire car for drug s afte r a drug -dog ’s aler t is rea sonable. There fore , the sea

rch of Kelley ’s ca

r wa s justified.

D Kelley ’s final motion to suppress ev i d ence deals with the sear ch of his house, conducte d pursuant to a sear ch war

rant. Kelley challeng ed the sufficie ncy of the war rant, arg uing that “[j] ust beca use an of fice r say s something doe s not make it corr ect a nd self-a uthenticating .” The sea rch w arr ant for Kelley ’s hous e was issued by a state c riminal-cour

t judge based on the af fi d av i t of Detec tive Andy Br owne of the Hamilton County Sheriff’ s Offic e. The aff idavit descr ibed the ong oing investiga tion of Michae l L ewis for coca ine distribution, that Kelley had been implicated in this investiga tion by his phone calls with L ewis, the ensuing wireta p of Kelley ’s phones, the sub s equent sear ch of Kelley ’s car and the seizure of $69,500, and sever al subsequent - 9 -No. 09-5970

United States v. Kelley phone calls that seeme d to discuss illega l activ i t y . Ba s ed on this evidenc e, Browne stated t hat he believed that a sear ch of the house would reve al evidenc e of illega l coca ine traff icking such as drug ledg ers, money , phone numbers, and para pherna lia . I ndeed, during the sear ch police found coca ine, money , a hig h-volume money counter , and other

drug para

pherna lia. T h e Fourth Amendment provides that “no W arr ants shall issue, but upon probable cause , supported by Oath or aff

irmation

. . . .” U.S. C O N S T . amend. I V. For the issuing mag istrate to issue the war rant, t h e af

fi d av it supporting the war rant must contain sufficie nt information to allow the issuing mag istrate to deter mine that there is a “fa ir probability that contra band or evidenc e of a crime will be found in a pa

rticular pla ce.” Illinois v. Gates , 462 U.S. 213, 238 (1983). The information provided may come from the direc t knowledg e of the aff iant, as well as hear say . Ibid. The issuing mag istrate’s f

inding of probable cause is acc orded gr eat defer ence , and shoul d only be reverse d if the revie wing court finds it to have been made arbitra rily

. United States v. W

illiams , 224 F.3d 530, 532 (6th Cir. 2000). I n this c ase, the totality of the circ umstances descr ibed in Br owne’ s aff idavit clea rly supports a finding of probable cause —this is not a “bar e-bone s aff idavit.” The district court did not err in deny

ing Kelley ’s motion to suppress the evidenc e g ather ed in the sear ch of his residenc e.

I I I Kelley raises challeng es to his sentenc e on appea l. He objects to the two-leve l g uideline incre ase for obstruction of justice. He objects to the drug quantity wi t h wh i ch he was char g ed,

- 10 -No. 09-5970

United States v. Kelley arg uing that he should have been sentenc ed based on a 5–15 kilogr am rang e, not a 15–50 kilogr am rang e. F inally , he ar g ues that the district cour t failed to consider

all of the § 3553(a ) fa ctors. We reviewthe applica tion of a sentenc ing e nhance ment for obstruc tion of justice for clea r

err or. United States v. J

ackson- Randolph , 282 F.3d 369, 388–90 ( 6th Cir. 2002). Section 3C1.1 of the United States Sentenc ing G uidelines states: I f (A) the defe ndant willfully ob s t ru cted or impeded, or attempted to obstruct or impede, the administration of justice with respe ct to the investiga tion, pr osecution, or sentenc ing of the instan t offe nse of conviction, and (B ) the obstructive conduct rela ted to (i) the def

endant’ s offe nse of conviction and any rele vant conduct; or (ii) a close ly rela ted offe nse, incre ase the offe nse leve l by 2 levels. At sentenc ing, the judge stated that the g overnme nt had proved, and Kelley pleade d g uilty to, using fake chec ks and backda

ted contra cts to have the $69,500 seized in the sear ch of his car returne d to h i m . Ke l l ey arg

ues that he did not obstruct or attempt to obstruct justice beca use there was n o

rea listi c chanc e that he would g et his money back. This arg ument fails. Kelley provided law enfor ceme nt with fra

udulent documents in order to have illega lly obtained funds returne d to him. He unquestionably attempted to obs t ru ct justice. See, e.g., Unit ed Stat es v. Streets , No. 09-3362, 2010 WL 4537961, at *11–12 (6th Cir. Nov. 12, 2010). Kelley also arg ues that the district c ourt err ed in de termining the drug quantity that would deter mine the rang e of his sent en ce . T he district court estimated Kelley ’s drug quantity to be eig hteen kilogr ams o f co caine , based on the detec tive’s statements that Kelley ’s co-c onspirator, L ewis, whose estimates had been acc urate in the past, stated that Kelley had made six or seven trips for him, transporting three to five kilogr ams o f co caine on eac h trip. The detec tive had also

- 11 -No. 09-5970

United States v. Kelley revie wed the wireta

p transcr ipts befor e trial and testified that they identified at least six trips wher e Kelley transporte d money and drug s betwee n Chattanoog a and Atlanta. Kelley arg ues t h at t h e district court was wrong to cr ed it the detec tive’s testimony over the testimony of Akins, one of Kelley ’s co-c onspirators, who estimated at the sentenc ing hear ing that Kelley had transporte d few er than fiftee n kilogr ams of coc aine f or him. We revie w the district court’s deter mination of drug quantity for clea r err or. United States

v. Auston , 355 F. App’x 919, 924–25 (6th Cir. 2009). Drug quantity may be deter mined based on testimonial evidenc e, and need only be an estimate, but the estimate must be conser vative. United States v. W

hite , 563 F.3d 184, 196 ( 6th Cir. 2009). Her e, there wer e two permissible views of the evidenc e, the detec tive’s and Akins’s. The district court was not in err or in choosing to cre dit the testimony of the detec tive. See, e.g. , United States v. Clark , 136 F. App’x 831, 834 (6th Cir. 2005). Fur ther, eig hteen kilogr ams of coca ine was

a conser vative estimate of drug quantity to draw from the cre dited testimony

. The district court’s deter mination of drug quantity was not unre asonable

. 3

Kelley also arg ues that the district cour t erre d when it ordered forfe iture of the m oney the 3 police seized from Ke l l ey ’s person during the sear ch of his automobile, alleg ing that the district court’s forf

eiture was contra

ry to our holding in United States v. Ferguson , 385 F. App’x 518 (6th Cir. 2010). Kelley does not indicate wh at h e believes the holding in Ferguson to be or how the district court violated the holding. There fore , Kelley ’s arg ument is waived. El-Moussa v. Holder , 569 F.3d 250, 257 (6th Cir. 2009) (“I ssues adver ted to in a perf

unctory manner , unacc ompanied by some eff ort at d ev el o p ed arg umentation, are deeme d waived. I t is not sufficie nt for a party to mention a possible arg ument in a skeletal way , leaving the court to put flesh on its bones.”) (quoting McPhe rson v. Kelsey , 125 F.3d 989, 995–96 ( 6th Cir. 1997)).

- 12 -No. 09-5970

United States v. Kelley I n his final arg ument, Kelley claims that the district court err ed in sentenc ing him beca use it did not consider all of the § 3553(a) fac tors. The district court need not “explicitly ref ere nce eac h of the § 3553(a) fac tors in its sentenc ing deter mination; but there must be sufficie nt evidenc e in the

rec ord to aff

irmatively demonstrate the court’s consideration of them.” United States v. Johnson , 640 F.3d 195, 203 ( 6th Cir. 2011) (interna l quotation marks and bra ckets omitted). I n Ke l l ey ’s case , the district court specific ally noted that it had considere d the § 355 3 (a ) fac tors in calc ulating his sentenc e. R.351 at 53. I t then discussed sever al fac tors, such as Kelley ’s criminal history and the need to provide him with appropr iate trea tment, befor e sentenc ing Kelley
to a sentenc e at the low end of the g uidelines rang e. Contrary to what Kelley contends, the rec ord demonstrates that the court car efully considere d the § 3553(a) fac tors in deter mining his sentenc e.

I V For these re asons, we A FF I RM the judgment of the district court.

- 13 -