NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0652n.06
Case No. 16-6739
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ARTHUR ALFORD, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

BEFORE: GILMAN, SUTTON, and STRANCH, Circuit Judges. SUTTON, Circuit Judge. Police executed a warrant to search Arthur Alford’s house based on an informant’s statement that he ha d purchased synthetic marijuana from someone named “Snoop” at something called the “A fr ame house apartment located on 209.” Police knew that Alford went by the alias “S noop” and corroborated that Al ford lived on Highway 209 in an A-frame house. After police found drugs and a load ed firearm at his home , Alford was indicted and pleaded guilty to unlawful possession of a fir earm. Because the information provided by the named informant established a fair probability that police would find synthetic marijuana at Alford’s home, we affirm the district court’s judgment that probable cau se supported the search warrant as well as its other rulings challenged on appeal. On July 16, 2015, Drug Task Force Agent Gregg Land submitted an affidavit to a magistrate judge seeking a warrant to search Arthur Alford’s residence. In the affidavit, AgentCase No. 16-6739, United States v. Alford

2 Land said that he had probable cause to believe Alford was pr oducing or distributing synthetic marijuana and possessed drug paraphernalia. Agent Land supported his probable cause as sessment with statements from Brandon Gwaltney. Earlier that day, Offi cer Stephen Kirkpatrick had arre sted Gwaltney for possessing synthetic marijuana. Gwaltney signed a waiver of rights and told Agent Land and Officer Kirkpatrick that he had just purchased the ma rijuana for $50 from an individual named “Snoop” at the “A frame house apartment located on 209.” R. 33-2 at 2. Officer Kirkpatrick knew that Alford went by the street name “Snoop” and Ag ent Land verified that Alford’s address was listed as 1866 Highway 209, North Ripley, Tenness ee in the Tennessee Criminal Justice Portal. He personally knew this address “to be an A frame structure apartment.” Id. Agent Land had received complaints about the sale of marijuana from that address in th e past and had ordered surveillance of the residence befo re. Based on the affidavit, a j udge issued a search warrant. When officers executed the warrant, they found 145 grams of synthetic marijuana and a loaded 9mm handgun. The government charged Alford with being a felon in unlawful possession of a firearm. See 18 U.S.C. § 922(g)(1). Alford moved to suppress the firearm, arguing that the affidavit failed to establish pr obable cause. The court denied his motion, and Alford pleaded guilty. In October 2016, Officer Kirkpa trick was arrested and indi cted for possessing cocaine, methamphetamine, and marijuana. These charges ha ve since been disposed of by several guilty pleas. In response to this development, Alfo rd filed a motion to reconsider his motion to suppress, arguing that he was entitle d to an evidentiary hearing under Franks v. Delaware , 438 U.S. 154 (1978), to ferret out potential misc onduct. The court heard testimony from AgentCase No. 16-6739, United States v. Alford

3 Land regarding the charges against Officer Ki rkpatrick before denying Alford’s motion to reconsider. Because Alford had three qualifying felony convictions under the Armed Career Criminal Act, he faced a mandatory minimum sentence of 15 years in prison. See 18 U.S.C. § 924(e)(1). Although the sentencing guidelines recommended a range of 188 months to 235 months in prison, the court sentenced Alford to th e statutory minimum of 180 months. Alford appeals three of the district court’s decisions: it s rejection of his suppression motion; its refusal to conduct a Franks hearing; and its refusal to impose a lower sentence. Suppression motion. Probable cause to execute a search exists if there “is a fair probability that contraband or evidence of a cr ime will be found in a particular place.” Bailey v. City of Ann Arbor , 860 F.3d 382, 387 (6th Cir. 2017). We re view whether probable cause exists in a common-sense manner in view of the totality of the circumstances and with deference to the magistrate judge’s determination. See Illinois v. Gates , 462 U.S. 213, 235–37 (1983). Probable cause exists, we have held, when a witness personally observes contraband in a specific location and is willing to be named in an affidavit. See United States v. Miller , 314 F.3d 265, 270 (6th Cir. 2002); United States v. Pelham , 801 F.2d 875, 878 (6th Cir. 1986). In Pelham and Miller , officers relied on informants who said th ey had seen marijuana-growing operations inside the defendants’ homes with in the past twen ty-four hours. Id . So also here. Gwaltney told police he had just purchased synthetic marijuana fr om Alford at his home. This case, indeed, is even easier. Unlike Miller and Pelham , Agent Land had also received complaints about marijuana sales at Alford’s home before and had previously ordered surv eillance of the home to boot.Case No. 16-6739, United States v. Alford

4 Measured by these requirements and this caselaw, Alford’s proba ble cause claim meets an abrupt end. What was true in Miller and Pelham is at least as true here. Sure, Gwaltney spoke indirec tly, referring to Alford by his alias “Snoop” and his home as “the A frame house apartment located on 209.” R. 33-2 at 2. But Officer Kirkpatrick knew that Alford went by “Snoop,” and Agent Land independen tly corroborated that Al ford lived in an Aframe home on Highway 209—the same house that Agent Land had receive d complaints about and on which he had ordered surveillance. This wa s sufficient to establish a fair probability that contraband would be f ound at Alford’s home. United States v. Weaver , 99 F.3d 1372 (6th Cir. 1996), offers no aid to Alford. In that case, a statement from a confidential informant th at he had seen marijuana being held on the premises for distribution three days prior wa s insufficient to establish probable clause. Id. at 1377–80. But here, Agent Land relied on a named informant. Tips from named informants are inherently more reliable than those from confid ential informants because named informants face a greater risk of criminal liability for fabrications. United States v. May , 399 F.3d 817, 823 (6th Cir. 2005). And because we consider the reliability of the informant and the particularity of the facts the informant provides on a sliding scale, we generally require less corroboration for named informants. See United States v. Williams , 544 F.3d 683, 690 (6th Cir. 2008). Miller and Pelham , not Weaver , govern this case. But even if we were inclined to apply Weaver , it would not help Al ford. Gwaltney told Officer Kirkpatrick he had just purchased marijuana from Alford, whereas the informant in
Weaver had seen the drugs three days before. See Weaver , 99 F.3d at 1378. That difference made it far more likely that polic e would find marijuana at Alford’s home than they would have at Weaver’s house.Case No. 16-6739, United States v. Alford

5 Franks hearing. Alford adds that he is entitled to a hearing under Franks v. Delaware , 438 U.S. 154 (1978), to determine if Agent Land engaged in misconduct to obtain the search warrant. To merit a Franks hearing, a defendant must make a substantial preliminary showing that (i) the affiant knowingly or recklessly in cluded a false statement in the search warrant affidavit and (ii) the allegedly false statemen t was necessary to the probable cause finding. United States v. Rose , 714 F.3d 362, 370 (6th Cir. 2013). Alford does not point to an alle gedly false statement in the affi davit. The most he can say is that it omitted information about Officer Kirkpatrick. But Franks is generally inapplicable to such omissions, except where the affiant excluded critical information intentionally to mislead the magistrate judge. See Mays v. City of Dayton , 134 F.3d 809, 816 (6th Cir. 1998). What at any rate does Alford think the affidavit omitted? He cannot argue that the affidavit should have included information about O fficer Kirkpatrick’s arrest , because that didn’t happen until over a year later. Alford must believe that Agent Land intentionally omitted information about Officer Kirkpa trick’s drug habits or criminal propensity. But Alford has presented no evidence of that or even that Ag ent Land had any reason to know of Kirkpatrick’s drug habits. All the record indi cates is that Agent Land has know n Officer Kirkpatrick since he was a kid but that he “didn’t personally hang out with him or have dinner with him.” R. 84 at 26. That is a far cry from a showing of knowing deception or reckless di sregard for the truth.
Sentence. Alford argues that his 180-month pr ison sentence was substantively unreasonable and a violation of the Eighth Am endment’s prohibition on cruel and unusual punishment. But his sentence was below the range suggested by the sentencing guidelines: 188 to 235 months. And because his sentence wa s the minimum amount allowed by the relevant statute in light of his three serious drug felonies, 18 U.S.C. § 924(e), any claim of substantiveCase No. 16-6739, United States v. Alford

6 unreasonableness has no purchase. See United States v. Higgins , 557 F.3d 381, 398 (6th Cir. 2009). This statute also has withstood Eighth Amendmen t challenges in every circuit to consider the question, including this one. See, e.g. , United States v. Reynolds , 215 F.3d 1210, 1214 (11th Cir. 2000); United States v. Cardoza , 129 F.3d 6, 18 (1st Cir. 1997); United States v. Presley , 52 F.3d 64, 68 (4th Cir. 1995); United States v. Warren , 973 F.2d 1304, 1311 (6th Cir. 1992); United States v. Mitchell , 932 F.2d 1027, 1028 (2d Cir. 1991); United States v. Hayes , 919 F.2d 1262, 1266 (7th Cir. 1990); United States v. Baker , 850 F.2d 1365, 1372 (9th Cir. 1988). The Supreme Court likewise has recognized that Congress need not give the courts any sentencing discretion when defini ng criminal punishments and that mandatory prison sentences do not constitute cruel and unusual punishment. See Chapman v. United States , 500 U.S. 453, 467 (1991); Harmelin v. Michigan , 501 U.S. 957, 995 (1991). No amount of prison ti me, it is true, is per se constitutional. See Solem v. Helm , 463 U.S. 277, 278 (1983). But the Eighth Amendment “forbids only extreme sentences grossly disproportionate to the crime.” Harmelin , 501 U.S. at 1001 (Kennedy, J. concurring in part and concurring in the judgment) (quoting Solem , 463 U.S. at 288); see also Graham v. Florida , 560 U.S. 48, 59 (2010) (tre ating Justice Kennedy’s Harmelin concurrence as the “controlling opinion” on this issue). A 180-month prison sentence for unl awful possession of a firearm accompanied by repeated prior cocaine-distribution convictions does not meet that stringent requirement. For these reasons, we affirm.