UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RECO D. MANNING, Defendant - Appellant. No. 14-5078 (D.C. No. 4:13-CR -00206-GKF-1) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , SEYMOUR , and GORSUCH , Circuit Judges.

________________ _________________ A jury convicted Reco Manning of being a felon in possession of a firearm and ammunition, and possessing methamphetamine a nd heroin with intent to distribute. He appeals the denial of his motion to suppress and several sentencing issues. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I In May 2013, a confidential informan t told Tulsa Police Officer Tom Wilson that a person named Reco was selling drugs from a house in Tuls a. The informant

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive valu e consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 10, 2015
Elisabeth A. Shumaker Clerk of Court-2- took Wilson to the house. Wilson confirme d through a Tulsa Police records database that Manning had listed the address as hi s residence, although the property was actually owned by his aunt. Wilson also learned that Manning had two prior drugrelated arrests, and one felony conv iction for narcotics possession. The informant positively identified a phot o of Manning as the man who sold drugs at the house, stated that he or she ha d seen drugs packaged for sale inside the residence within the past 72 hours, and told Wilson th at Manning sells drugs when people gather outside the house. Wilson co nducted surveillance at the home several times, and observed a group of people ga thering outside. He submitted an application for a warrant to search the house, including the following statements about the confidential inform ant in his affidavit: The [Reliable Confidential Informant (“R.C.I.”)] has in the past given information to your affiant in exces s of three occasions. The Tulsa Police Department began utilizing this R.C.I. in 2005. The R.C.I. has been able to make controlled dange rous substance purchases, further investigations, and enable officers to obtain narcotic search warrants. The R.C.I. has assisted in investiga tions leading to se izures of cocaine and marijuana. Your affiant furthe r states that since 2005, subjects arrested subsequent to information received from th is R.C.I. have been successfully charged with narcotic violations. Your affiant further states that your affiant has never found the information that the R.C.I. has given your affiant to be untrue or misleading. Your affiant states that while conducting investigations with this R.C. I. their [sic] reliability has been cons istently verified throughout the investigations he/she assisted your affiant with. The information that the R.C.I. has provided in the past has been up to date and vital on multiple narcotics investigations. Your affiant states th at the last investig ation this R.C.I. assisted your affiant w ith led to a search wa rrant being served on a suspect’s residence and charges being filed.-3- A state court judge issued the warrant. Tulsa police office rs executed it the next day. Inside the house, they disc overed a .38 handgun, ammunition, heroin, methamphetamine, and other mate rials related to the drug trad e. Both the heroin and methamphetamine were found insi de shoes located in the clos et of the room in which Manning was staying. After being informed of his right to re main silent, Manning led an officer to the handgun, which was lo cated in the pocket of a coat hung in an entryway closet. Manning was charged with one count of being a felon in possession of a firearm and ammunition, one count of possessi on of heroin with intent to distribute, and one count of possession of methampheta mine with intent to distribute. He moved to suppress the fruits of the sear ch, arguing that the warrant affidavit contained inadequate information about the cr edibility of the conf idential informant. The district court denied the motion, conc luding that Wilson’s affidavit established probable cause, and, alternativel y, that the officers conduc ted the search in good faith reliance on the warrant. A jury found Manning gu ilty on all three counts. Manning’s Presentence Investigation Re port (“PSR”) recomm ended that he be sentenced as a career offende r pursuant to U.S.S.G. § 4B1.1(b). His career offender status was based on st ate court convictions in Arkans as for possession of cocaine and Xanax with intent to deliver, and for ba ttery. Manning’s Guidelines range was 210- 240 months. The district court varied downward to 112 months. Manning timely appealed.-4- II We review a district c ourt’s ruling on the validity of a warrant de novo. See United States v. Pulliam, 748 F.3d 967, 970 -71 (10th Cir. 2014). In doing so, we “must accord great deference to the proba ble-cause assessment of the state court judge who issued the warrant.” Id. at 971 (quotation omitted ). Probable cause is “a fair probability that contraba nd or evidence of a crime will be found in a particular place.” United States v. Tuter, 240 F. 3d 1292, 1295 (10th Ci r. 2001) (quotation omitted). Warrants that rely on evidence provi ded by confidential informants are generally viewed with “skepticism and carefu l scrutiny.” Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985). Because many conf idential informants “suffer from generally unsavory character and ma y only be assisting police to avoid prosecution for their own crimes ,” courts must consider the informant’s “veracity,” “reliability,” and “basis of knowledge.” United States v. Aver y, 295 F.3d 1158, 1168 (10th Cir. 2002) (quotations omitted). “These factors ar e not absolute, independent requirements that must be sa tisfied in order for probabl e cause to exist; . . . a deficiency in one factor may be compensa ted for by a strong showing of another or by other indicia of reliabili ty.” United States v. Qu ezada-Enriquez, 567 F.3d 1228, 1233 (10th Cir. 2009). Manning correctly argues that the affi davit supporting the warrant offered little evidence of the confidential informant’s vera city. “Veracity con cerns whether there is reason to believe that the informant is telling the truth.” Id. Police knew the-5- identity of the confidential in formant, which is “one indi cator of veracity.” Cf. Pulliam, 748 F.3d at 971 & n.2. 1 However, there is no in formation in the record about whether the confidential informant wa s making statements against interest or facing criminal charges. Cf. United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992). Corroboration of non-innocuous inform ation can obviate the need to establish veracity. See Tuter, 240 F. 3d at 1297. Most of the co rroborating information cited by the government was wholly innocent, for exampl e, the fact that Manning lived at the residence identified by th e confidential informant. See id. (“Almost anyone can describe the residents of . . . a particular home without having any special knowledge of what goes on inside the home.”). But po lice were able to independently learn that Manning had a prior felony conviction for drug possession, which bears on the probable cause calculus. See United States v. Artez, 389 F.3d 11 06, 1114 (10th Cir. 2004) (“Criminal history alone is not enough to support a finding even of reasonable suspicion, much less probable cause, [but] . . . criminal hi story, combined with other factors, can support a findi ng of reasonable suspicion or probable cause.”). Manning also challenges the reliability of the informan t. “Reliability determinations entail inquiry into wh ether the informant has provided accurate information in the past.” Quezada-Enrique z, 567 F.3d at 1233. In his affidavit, Officer Wilson explained that the confid ential informant had worked with Tulsa

1 This fact distinguishes th e case at bar from Tuter, in which we held that a warrant lacked probable ca use in part because the “a nonymous caller’s identity was unknown,” and police thus had “no informa tion about the veracity or historical reliability of the calle r.” 240 F.3d at 1297.-6- Police since 2005, had provided information “i n excess of three occasions,” and that this assistance led to the issuance of s earch warrants, seizur es of cocaine and marijuana, and resulted in a rrests and charges. Wilson further attested that the informant had never given “untrue or mislead ing” information, and that police have been able to verify the info rmant’s tips in “multiple narc otics investigations.” In United States v. Long, 774 F.3d 653 (10t h Cir. 2014), we held that information supplied by a confidential info rmant with a similar histor y of providing information was reliable. Id. at 657-60. Manning notes that unlike in L ong, the record in the case at bar is silent as to whether the confidential info rmant provided recent tips and whether any of the charges resulting from hi s or her information led to convictions. Nonetheless, the warrant affidavit provi des some evidence th at the confidential informant was reliable. Se e, e.g., Pulliam, 748 F.3d at 971 (concluding that warrant was supported by probable cause when an info rmant’s “tips had reli ably led police to contraband in the past”). “As for basis of knowledge, a firstha nd observation is entitled to greater weight than secondhand information.” Quezada-Enriquez, 567 F.3d at 1233. The confidential informant’s basis of knowledge was his or her firsthand observation of drugs packaged for sale inside of Manning’s residence. 2 Manning argues that the affidavit provides few specific details about the house or the packaging. We afford

2 This fact distinguishes the case fro m United States v. Danhauer, 229 F.3d 1002 (10th Cir. 2000), in which we conclude d that an affidavit was insufficient because it did not identify the basis of the confidential info rmant’s knowledge or include any information about his or her reliability. Id. at 1006.-7- greater weight to “highly specific or personal details from which one could reasonably infer that the [i nformant] had firsthand k nowledge about the claimed criminal activity.” Tuter, 240 F.3d at 1298. But such detailed in formation is more important “when the informant’s basis of k nowledge is not described on the face of the affidavit.” Quezada-Enriquez, 567 F.3d at 1233. The affidavit in this case stated that the confidential info rmant saw the drugs with his or her own eyes. Even if we were to conclude that the affidavit did not esta blish probable cause, we conclude that Manning is not entitled to suppression because th e fruits of a search will not be suppressed if officers acted with an objectively reasonable good-faith belief that a warrant was pr operly issued. United States v. Leon, 468 U.S. 897, 922 (1984). Manning contends that this warrant is subject to an exception to the goodfaith doctrine because th e affidavit was “so lacking in i ndicia of probable cause as to render official belief in its existence entirely unreasona ble.” Id. at 923 (quotation omitted). But this is a na rrow exception that typically onl y applies when an officer submits a “bare bones affidavit, contai ning only conclusory statements and completely devoid of factual support.” Un ited States v. Rowl and, 145 F.3d 1194, 1207 (10th Cir. 1998). The affidavit at issue is not conclusory. It contai ns significant factual support about the confidential informant, Manning’s criminal history, a nd observations made by the officer. Although the affidavit coul d have contained more evidence about the informant’s veracity, more specifics about the informant’s reli ability, and further details about the informant’s knowledge, any shortfalls as to th ese factors did not-8- render the officers’ relianc e on the warrant objectively unreasonable. See QuezadaEnriquez, 567 F.3d at 1234 (applying good-faith exception even though “the affidavit before us does not describe the basis of the informant’s knowledge and police did not corroborate any details”); Da nhauer, 229 F.3d at 1007 (“[T]h e absence of information establishing the informant’ s reliability or basis of know ledge does not necessarily preclude an officer from manifesting a reasonable belief that the warrant was properly issued, particularly when the officer takes steps to investigate the informant’s allegation. ” (citation omitted)).
III After briefs in this cas e were submitted, we grante d Manning leave to file a pro se supplemental brief chal lenging aspects of his senten cing. Liberally construing Manning’s pro se filing, see Hall v. Be llmon, 935 F.2d 1106, 1110 (10th Cir. 1991), his argument is that his se ntence is procedurally unreas onable because the district court erred in applying various Guidelines provisions. “In examining a sentence for procedural reasonableness, we review the dist rict court’s legal conc lusions de novo and its factual findings for clear error.” Unite d States v. White, 782 F.3d 1118, 1129 (10th Cir. 2015) (quotation omitted). A Manning contends that the district c ourt erroneously concluded that U.S.S.G. § 2K2.1(b)(6)(B) applied b ecause he “possessed any firearm or ammunition in connection with another felony offense.” This enhancement should be imposed if “a firearm is found in close proximity to drug s, drug-manufacturing materials, or drug-9- paraphernalia.” § 2K2.1 app. n.14(B). We ha ve held that if an “entire house was used for drug trafficking activities,” a gun loca ted anywhere in the house presumptively qualifies as “possessed . . . in connection with the offense.” United States v. Dickerson, 195 F.3d 1183, 1188 (10th Cir. 1999). Becaus e drugs and drug paraphernalia were found throughout the house, the district court did not err by imposing the § 2K2.1(b)(6)(B) enhancement.
B Relatedly, Manning claims that the dist rict court erred by imposing a two-level enhancement pursuant to § 2D1.1(b)(1) on the basis that he possessed a firearm during the drug offenses. 3 This enhancement “should be a pplied if the weapon was present, unless it is clearly improbable that the weap on was connected with the offense.” See § 2D1.1 app. n.11(A). The government satisfied its burden of proving that the firearm in the front closet was connected to the drug offenses, and Manning did not show a clear improbability that the gun was connected to those offenses. Se e United States v. Pompey, 264 F.3d 1176, 1180-81 (10th Cir. 2001). C Manning further argues that the district court erred by sentencing him as a career offender pursuant to § 4B1. 1 because his predicate offens es were consolidated for sentencing purposes. Regard less of consolidation, however, “[p]rior sentences are always counted separately if the sentences we re imposed for offenses that were separated

3 The PSR mistakenly cited a nonexist ent provision, § 2K1.1(b)(1), but clarified in response to Manning’s objec tion that the enhancement falls under § 2D1.1.-10- by an intervening arrest (i.e., the defendant is arrested fo r the first offense prior to committing the second offense).” § 4A1.2(a)(2). Because an intervening arrest separated Manning’s predicate offenses, they were properly counted separately.
D Finally, Manning contends that the district court erred in sentencing him as a career offender because his Arkansas second- degree battery conviction does not qualify as a “crime of violence” under § 4B1.1(a). Because Manning did not raise this argument before the district court, we review for pl ain error. United States v. Sierra-Castillo, 405 F.3d 932, 941 (10th Cir. 2005). Pl ain error exists when: “(1) th ere is an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputa tion of judicial proceedi ngs.” Id. at 941-42. A “crime of violence” is defined as a fel ony that “has as an element the use, attempted use, or threatened use of physical force agains t the person of another” or “otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a). To as certain if a crime falls under this definition, we look only to the elements of the pr edicate offenses, “and not to the particular facts underlying those convictions.” Desc amps v. United States, 133 S. Ct. 2276, 2283 (2013) (quotation and emphasis omitte d). For statutes that lis t “multiple, alternative elements, and so effectively create[] several diffe rent crimes,” we apply the modified categorical approach. Id. at 2285 (quota tion and alteration omitted). Under this approach, courts may review a “restricted set of materi als” to “determine which crime formed the basis of the defendant’s co nviction.” Id. at 2284. Although there is-11- no “exhaustive list of which documents can be examined under the modified categorical approach,” the Supreme Cour t has identified “charging documents, plea agreements, transcripts of plea colloquies, findings of fa ct and conclusions of law from a bench trial, and jury instructions a nd verdict forms” as permissible. United States v. Trent, 767 F.3d 1046, 1052 (10t h Cir. 2014) (quotations omitted). As Manning correctly explains, the Eight h Circuit has held that a conviction for second-degree battery in Arkansas stat ute does not qualify as a crime of violence under the categorical approach when the subsection of the statute under which the defendant was convicted is not specified. See United States v. Boose, 739 F.3d 1185, 1187 (8th Cir. 2014) (discussi ng United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012)). It reached this conclusion because one of the statute’ s subsections covers reckless driving offenses, wh ich are not considered cr imes of violence. Id. (discussing Ark. Code § 5-13-202(a)(3)). The PSR indicates that Manning was conv icted of battery for “intentionally and knowingly caus[ing] physical injury to [a victim] whom he knew to be age 60 or older.” This description matches a subs ection of the Arkansas statute, which provides that “[a] person commits battery in the second degree if . . . [t]he person knowingly . . . causes physical injury to . . . a person he or she knows to be . . . [a]n individual sixty (60) years of age or older.” Ark. Code § 5-13-202(a)(4)(C). The record thus indicates that Manning was not convicted un der the reckless driving subsection identified by the Ei ghth Circuit as problematic . See Boose, 739 F.3d at-12- 1187. And subsection (a)(4)(C) “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 4B1.2(a). It is possible that the PSR relied on documents that may not be properly considered under the modified categorical approach. But because we proceed on plain error review, Manning is not entitled to relief. Manning would have been “disadvantaged by the district court’s rulin g only if the government were unable to prove, by appropriate judicial documents, that his prior conviction was for” a violation of subsection (a)(4)(C). United States v. Zubia-To rres, 550 F.3d 1202, 1210 (10th Cir. 2008). But because he “fai l[ed] to object to application of the sentencing enhancement, or even to pr esent evidence on appeal indicating that imposition of the enhancement was err oneous, we have no basis on which to determine” that error occurred. Id. Manning “has therefor e failed to meet his burden to show that the court’s approach prejudiced his substantial rights.” Id. Accordingly, the district court did not plainly err by concluding that Manning’s Arkansas seconddegree battery conviction qualifie s as a crime of violence. IV The judgment of the district court is AFFIRMED

.
Entered for the Court

Carlos F. Lucero Circuit Judge