IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10605

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

DONALD STEVEN LOONEY; MARY BETH LOONEY

Defendants - Appellants

Appeals from the United States District Court 

for the Northern District of Texas 

Before REAVLEY, JOLLY, and GARZA, Circuit Judges.

PER CURIAM:

Donald and Mary Beth Looney, husband and wife, were convicted in a jury

trialfor conspiracy and possession of methamphetamine with intent to distribute

and for possessing firearms in furtherance of drug-trafficking crimes. Both were

sentenced to 548 months in prison. Mr. Looney appeals his conviction on

grounds of the district court’s denial of his motion to suppress. Ms. Looney

appeals her sentence; she is effectively serving a life sentence for her first

conviction. For the reasons that follow, we AFFIRM the conviction of Mr.

Looney. We AFFIRM the sentence of Ms. Looney.

United States Court of Appeals

Fifth Circuit

F I L E D

June 23, 2008

Charles R. Fulbruge III

Clerk
No. 06-10605

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I.

Mr. Looney argues that the district court erroneously denied his motion

to suppress. In his motion to suppress, Mr. Looney alleged that the evidence

seized from his home pursuantto a search warrant(methamphetamine and four

guns) must be suppressed because the search warrant was obtained with false

or misleading information.

In Franks v. Delaware,the Supreme Court set outthe legal principles that

govern how courts are to address a defendant’s allegations of false statements

in warrant affidavits:

[W]here the defendant makes 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 if the allegedly false statement is necessary to the

finding of probable cause, the Fourth Amendment

requires that a hearing be held at the defendant’s

request. In the event that at that hearing the

allegation of perjury or reckless disregard is established

by the defendant by a preponderance of the evidence,

and, with the affidavit’s false material set to one side,

the affidavit’s remaining content is insufficient to

establish probable cause, the search warrant must be

voided and the fruits of the search excluded to the same

extent as if probable cause was lacking on the face of

the affidavit.

438 U.S. 154, 155-56 (1978).

However, even if the defendant proves that one or more statements in the

affidavit are false, and yet fails to prove that the affiant deliberately or

recklessly included such false information in the affidavit, the court may

consider the entire affidavit -- without any excision -- under the good-faith

exception to the exclusionary rule. See United States v. Cavazos, 288 F.3d 706,

710 (5th Cir. 2002) (“After several hearings ... the district court found no

evidence to suggest that the officers had deliberately or recklessly provided the
No. 06-10605

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false information. Having made these findings, the good-faith exception would

have allowed the court to consider the entire affidavit, and the analysis should

have ended there.”) “The good-faith exception provides that where probable

cause for a search warrant is founded on incorrect information, but the officer’s

reliance upon the information’s truth was objectively reasonable, the evidence

obtained from the search will not be excluded.” Id. at 709. “If the good-faith

exception applies, we need not reach the question of probable cause.” Id. at 710

(brackets, internal quotation marks and citation omitted).

In his brief before this court, Mr. Looney points to eight alleged “factual

misstatements” in the search warrant affidavit. He contends that these eight

statements should be excised from the affidavit, either because they are false

and were made intentionally or with a reckless disregard for the truth, or

because they are based on information supplied by a witness whose credibility

and basis for knowledge are not established in the affidavit. He contends further

that, once these statements are excised, the remaining portion of the affidavit

is insufficient to provide probable cause for issuance of the warrant.

In his motion to suppress, however, and at the suppression hearing as

well, Mr. Looney identified only one alleged false statement in the affidavit. He

did not allege in his motion, nor did he argue at the hearing, that the affidavit

included the other allegedly false statements that are now itemized in his brief;

nor did he contend in the district court, as he now contends, that the affidavit

was based on information supplied by a witness whose credibility and basis for

knowledge were not established on the face of the affidavit. This court has held

that “failure to raise specific issues or arguments in pre-trial suppression

proceedings operates as a waiver of those issues or arguments for appeal.”

United States v. Pope, 467 F.3d 912, 918-19 (5th Cir. 2006).

The district court found that although Mr. Looney had shown by a

preponderance ofthe evidence that the single statement identified in his motion
No. 06-10605

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to suppress was false or misleading, he had failed to prove thatthe affiant officer

had acted deliberately or with reckless disregard for the truth when he included

that statement in the affidavit. The court stated that, based on the officer’s

“testimony and his forthright and honest demeanor on cross examination,” the

officer’s “testimony regarding his intentions is credible and that any error ... was

inadvertent and not deliberate or reckless.” Once it concluded that Mr. Looney

had failed to meet his burden of proving thatthe affiant officer acted deliberately

or with reckless disregard for the truth, the district court held that the goodfaith exception applied. Thus, the district court examined the entire affidavit,

including the challenged statement, and concluded that it established probable

cause to search Mr. Looney’s residence.

The district court’s factual finding that the affiant officer did not

deliberately or recklessly include the false statement in the affidavit cannot be

disturbed unless itis clearly erroneous. United States v. Gonzalez, 328 F.3d 755,

758 (5th Cir. 2003). Based on our review of the record, we find no basis to

overturn the district court’s assessment.

Furthermore, assuming that Mr. Looney did not waive his argument

regarding the other statements in the affidavit that he challenges for the first

time on appeal, the district court did not plainly err by failing, sua sponte, to

excise those statements. See Pope, 467 F.3d at 919 n.20 (holding that, assuming

suppression argument not waived, there was no plain error). Mr. Looney

presented no evidence at the suppression hearing regarding the alleged falsity

of the statements or the credibility of the witness who supplied information to

the affiant officer. In short, the district court did not err in determining that the

requirements ofthe Fourth Amendment were met for the search of Mr. Looney’s

residence, based on the challenged affidavit.

We will now turn to address the sentencing issues raised by Ms. Looney.
No. 06-10605

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II.

As we have previously noted, Ms. Looney was sentenced to 548 months (45

years) of imprisonment. Although the record indicates she was not spotless, she

nevertheless had no previous convictions. Yet, because she was 53 years old at

the time of sentencing, she was given effectively a life sentence; if she can do her

part and finish her sentence, she will be about ninety-eight years old when she

is released to the unimprisoned world once again. The judge, however, had little

discretion in imposing this sentence. As her counsel observed at sentencing, the

district court’s sentencing discretion was severely limited. Because of the way

the indictment was stacked by the prosecutor, Ms. Looney was subject to

mandatory minimum terms of imprisonment for forty years (ten years for the

drug conspiracy and possession with intentto distribute counts,five consecutive

years for the first gun count, and twenty-five consecutive years for the second

gun count). Although thirty years of her sentence can be attributed to

possessing guns in furtherance of her methamphetamine dealing, there is no

evidence that Ms. Looney brought a gun with her to any drug deal, that she ever

used one of the guns, or that the guns ever left the house. Because of our serious

concerns regarding the harshness of Ms. Looney’s sentence, we have very

carefully considered Ms. Looney’s arguments, which we now turn to address.

A.

Ms. Looney contends that her sentence is procedurally unreasonable for

two reasons. She argues first that the district court erroneously thought the

Guidelines were mandatory. But the district court, in its written statement of

reasons, stated that it recognized that the Guidelines were “advisory only.” 

Next, Ms. Looney contends that the district court’s oral statement of

reasons was not sufficient. The only argument Ms. Looney made before the

district court concerning her sentence length, however, was a request for the

district court to take into consideration the fact that she had many people who
No. 06-10605

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were concerned about her and supported her. The district court acknowledged

that fact before announcing the sentence, which was at the low end of the

Guideline range. The district court did not need to say more than it did. As the

Supreme Court recognized in Rita v. United States: 

Circumstances may well make clear that the judge

rests his decision upon the Commission’s own reasoning

that the Guidelines sentence is a proper sentence (in

terms of § 3[5]53(a) and other congressional mandates)

in the typical case, and that the judge has found that

the case before him is typical. Unless a party contests

the Guidelines sentence generally under §

3553(a)—that is argues that the Guidelines reflect an

unsound judgment, or, for example, that they do not

generally treat certain defendant characteristics in the

proper way—or argues for departure, the judge

normally need say no more. 

127 S. Ct. 2456, 2468 (2007). 

Here, the district court apparently thought Ms. Looney’s case was typical

and that she was entitled to a within-Guideline sentence. In the words of Rita,

the judge “rest[ed] his decision upon the Commission’s own reasoning that the

Guidelines sentence is a proper sentence.” Id. And since Ms. Looney did not

make any argument to the contrary, the district court did not need to explain

why it did not find a non-Guideline sentence necessary. 

B.

Ms. Looney argues next that her 548-month sentence—effectively a lifesentence for an individual in her fifties with no prior convictions—violates the

Eighth Amendment’s prohibition against “cruel and unusual” punishments

because it is “grossly disproportionate” to the crime she committed. 

We have previously recognized, following guidance from the Supreme

Court,that successful Eighth Amendment challenges to prison-term lengths will

be rare. United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997). And while

a life sentence for a crime involving no actual violence might be considered a
No. 06-10605

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disproportionate punishment, it is not “grossly disproportionate” as that term

is understood under current law. See, e.g., id. at 942-44 (upholding a 438-month

sentence for defendants who committed drug and gun offenses); United States

v. Hungerford, 465 F.3d 1113, 1118 (9th Cir. 2006) (upholding a 159-year

sentence for a defendant who took part in a series of robberies); cf. Harmelin v.

Michigan, 501 U.S. 957, 994 (1991) (“Severe, mandatory penalties may be cruel,

but they are not unusual in the constitutional sense . . . .”). In sum, although we

consider Ms. Looney’s sentence to be unduly harsh for someone who has no

previous conviction of any sort, “[i]t is for Congress to ameliorate the result of

application of [statutory mandatory minimum sentences] if it deems it too

harsh.” United States v. Casiano, 113 F.3d 420, 426 (3d Cir. 1997).

C.

Ms. Looney’s final contention is that either count three or four of the

indictment should have been dismissed and that the district court erred by

sentencing her for both. Both counts charged Ms. Looney with violating 18

U.S.C. § 924(c), which makes it a crime to possess a gun in furtherance of a drug

trafficking offense. Specifically, count three of the indictment alleged that Ms.

Looney possessed two guns in furtherance of the offense of conspiracy to possess

with the intent to distribute methamphetamine. Count four alleged that Ms.

Looney possessed two different guns in furtherance of the offense of possession

with the intent to distribute methamphetamine. The indictment charged

possession of guns with these two separate predicate offenses. One predicate

offense is conspiracy to possess with the intent to distribute methamphetamine.

The other predicate offense, possessing with the intent to distribute

methamphetamine, charged facts also charged in the conspiracy. 

Ms. Looney argues that she cannot be sentenced for two § 924(c) gun

offenses when one of the predicate offenses is conspiracy to commit crime X and
No. 06-10605

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the other offense is just crime X. But that argument is foreclosed by United

States v. Privette, where we held: 

Multiple sentences under § 924(c) must be based upon

the number of drug trafficking crimes in which firearms

were used. Drug trafficking crimes separated by the

measure ofthe double jeopardy clause can each support

§ 924(c) convictions. A conspiracy and its target crimes

are separate offenses for these purposes. [The

defendant’s] conviction of conspiracy and his conviction

of possession with intent to distribute could each

support a separate § 924(c) conviction and sentence. 

947 F.2d 1259, 1262 (5th Cir. 1991) (internal citations omitted). Thus, the

district court did not err in confecting its sentence.

D.

We have carefully considered all of Ms. Looney’s challenges to her sentence

and can find no basis upon which to vacate any portion of it. As we have noted,

Ms. Looney was subject to a mandatory minimum sentence of forty years --

essentially determined by Congress. Although Congress established the

mandatory minimum terms of imprisonment, and further provided that the

firearms counts must be served consecutively, it is the prosecutor’s charging

decision that is largely responsible for Ms. Looney’s ultimate sentence. Instead

of charging Ms. Looney with two separate § 924(c) offenses,the prosecutor might

well have charged her with only one, which would have avoided triggering the

twenty-five-year mandatory, consecutive sentence for the second firearm count.

The prosecutors also could have chosen to charge Ms. Looney with the drug

offenses and requested a two-level enhancement under the Sentencing

Guidelines based on the involvement of firearms with the offenses. Instead, the

prosecutor exercised his discretion -- rather poorly we think --to charge her with

counts that would provide for what is, in effect, a life sentence for Ms. Looney.

We do not question the authority -- or the wisdom -- of Congress’s decision

to punish severely individuals who possess weapons in furtherance of drug-
No. 06-10605

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dealing. Nor do we in any way minimize the seriousness of Ms. Looney’s

offenses. Moreover, there is nothing legally improper about the prosecutors’

charging decisions with respect to Ms. Looney, nor about the practice of

confecting an indictmentthat would provide for the largest mandatory sentence.

Nevertheless, we must observe thatthe power to use § 924(c) offenses, with their

mandatory minimum consecutive sentences, is a potent weapon in the hands of

the prosecutors, not only to impose extended sentences; it is also a powerful

weapon that can be abused to force guilty pleas under the threat of an

astonishingly long sentence. For example, a defendant who sincerely and

fervently believes in his innocence, and who has witnesses and other evidence

that support his claim of innocence, could easily be pressured into pleading

guilty under a plea agreement that eliminates the threat -- rather than face the

possibility of life imprisonment based on a prosecutor’s design of an indictment

that charges and stacks mandatory minimum consecutive sentences. We merely

observe that the possibility of abuse is present whenever prosecutors have

virtually unlimited charging discretion and Congress has authorized mandatory,

consecutive sentences. We trust that the prosecutors in this Circuit are aware

of the potency of this weapon and its potential for abuse, and that they exercise

extreme caution in their use of it, all in the interests of justice and fairness.

III.

For the foregoing reasons, Mr. Looney’s conviction and Ms. Looney’s

sentence are

AFFIRMED.