UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4950

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

PAUL TILLAGE,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Richard L. Williams, Senior 

District Judge. (3:08-cr-00458-RLW-1)

Submitted: November 9, 2010 Decided: December 6, 2010

Before MOTZ, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Paul G. Gill, 

Assistant Federal Public Defender, Richmond, Virginia, for 

Appellant. Neil H. MacBride, United States Attorney, Richard D. 

Cooke, Assistant United States Attorney, Kevin C. Nunnally, 

Special Assistant United States Attorney, Richmond, Virginia, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Paul Tillage was indicted and charged with possession 

with intent to distribute cocaine base, cocaine, marijuana, and 

methadone, in violation of 21 U.S.C. § 841 (2006) (Counts One 

through Four, respectively), possession of a firearm in 

furtherance of a drug trafficking offense, in violation of 18 

U.S.C. § 924(c) (2006) (Count Five), and maintaining a place for 

the purpose of manufacturing, distributing, and using controlled 

substances, in violation of 21 U.S.C. § 856 (2006) (Count Six). 

The Government charged Tillage after the discovery of 

contraband in a motel room occupied by Tillage and leased in his 

name. Officer Eric Sandlin, one of two officers conducting 

surveillance at the motel, noted the smell of marijuana just 

before Tillage emerged from the motel room. On noticing the 

officers, Tillage first tried to barricade himself in the motel 

room, but eventually fled the scene. The officers gave chase 

and apprehended Tillage a few blocks away. Sandlin secured a 

search warrant for the motel room, citing the marijuana odor in 

the supporting affidavit.

Relying on Franks v. Delaware, 438 U.S. 154 (1978), 

Tillage sought to suppress the physical evidence against him, 

arguing that the affidavit in support of the search warrant 

contained an intentional or reckless omission of material 

information, and a more accurate affidavit would not have 
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supported a finding of probable cause. The district court 

conducted an evidentiary hearing to consider Tillage’s motions, 

but opted not to hold a full Franks hearing and denied Tillage’s 

motion to suppress. The case went to trial, and a jury found 

Tillage guilty of Counts One through Four and Count Six, and not 

guilty on Count Five. 

Based on his offense level of thirty-four and a 

criminal history category of VI, Tillage’s Guidelines range was 

262 to 327 months of imprisonment. U.S. Sentencing Guidelines 

Manual Ch. 5, Pt. A (sentencing table) (2008). Counsel for 

Tillage argued in support of a downward variant sentence of 120 

months. The district court sentenced Tillage to 262 months on 

Count One, 240 months on Counts Two, Four, and Six, and sixty 

months on Count Three, to be served concurrently, for an 

aggregate sentence of 262 months. This appeal followed.

On appeal, Tillage asserts two claims of error. 

First, Tillage argues that the district court erred when it 

concluded that he failed to make a substantial showing in 

support of his motion for a full hearing to determine whether 

Sandlin purposefully or recklessly omitted material information 

in a search warrant affidavit such that the warrant was invalid. 

Second, Tillage argues that his sentence is procedurally 

unreasonable because the district court failed to adequately

articulate a basis for the sentence imposed.
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I. Denial of Evidentiary Hearing

In the district court, Tillage moved for an

evidentiary hearing, pursuant to Franks v. Delaware. A 

defendant bears a heavy burden to establish the need for a 

Franks hearing. United States v. Jeffus, 22 F.3d 554, 558 (4th 

Cir. 1994). First, a defendant must make a “substantial 

preliminary showing” that the affiant intentionally included 

false statements necessary to a finding of probable cause. 

Franks, 438 U.S. at 155-56. If the defendant claims the affiant 

made the affidavit deceptive by omitting facts, the defendant’s 

“burden increases yet more.” United States v. Tate, 524 F.3d 

449, 454 (4th Cir. 2008). In such a case, the defendant must 

show “that the facts were omitted ‘with the intent to make, or 

in reckless disregard of whether they made, the affidavit 

misleading.’” Id. (quoting United States v. Colkley, 899 F.2d 

297, 300 (4th Cir. 1990)). The “showing ‘must be more than 

conclusory’ and must be accompanied by a detailed offer of 

proof.” Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at 

171). A claim that the affiant was negligent or made an 

innocent mistake is inadequate to obtain a hearing. Franks, 438 

U.S. at 171. In addition, consideration of the omitted 

information must “be such that its inclusion in the affidavit 

would defeat probable cause.” Colkley, 899 F.2d at 301. This 

court reviews for clear error the factual determinations 
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underlying the denial of such a motion, and reviews de novo the 

legal conclusions. United States v. Gary, 528 F.3d 324, 327

(4th Cir. 2008).

The record before this court does not demonstrate that 

the district court erred in denying Tillage’s motion for a 

Franks hearing. First, Tillage failed to make a substantial 

preliminary showing that Sandlin omitted material facts 

knowingly or recklessly, to mislead the magistrate. Further, on 

consideration of the omitted material, the fact that another

officer on the scene did not smell marijuana does not defeat the 

probable cause established by Sandlin’s observations. Colkley, 

899 F.2d at 300-01. Accordingly, as the district court did not 

err in denying the request for a Franks hearing or the motion to 

suppress, we affirm the district court’s denial of relief.

II. Claim of Sentencing Error

Tillage asserts that the district court committed 

procedural error by failing to adequately explain the sentence 

imposed. This court reviews a sentence for reasonableness, 

using an abuse of discretion standard of review. Gall v. United 

States, 552 U.S. 38, 51 (2007). The first step in this review 

requires us to ensure that the district court committed no 

significant procedural error. United States v. Evans, 526 F.3d 

155, 161 (4th Cir. 2008). Procedural errors include “failing to 
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calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 

[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence 

based on clearly erroneous facts, or failing to adequately 

explain the chosen sentence.” Gall, 552 U.S. at 51. 

“[I]f a party repeats on appeal a claim of procedural 

sentencing error . . . which it has made before the district 

court, [this court] review[s] for abuse of discretion” and will 

reverse if such an abuse of discretion is found unless the court 

can conclude “that the error was harmless.” United States v. 

Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For instance, “the 

district court must state in open court the particular reasons 

supporting its chosen sentence [and] set forth enough to satisfy 

the appellate court that [it] has considered the parties’

arguments and has a reasoned basis for exercising [its] own 

legal decisionmaking authority.” United States v. Carter, 564 

F.3d 325, 328 (4th Cir. 2009) (internal citation and quotation 

marks omitted). If “an aggrieved party sufficiently alerts the 

district court of its responsibility to render an individualized 

explanation” by drawing arguments from § 3553 “for a sentence 

different than the one ultimately imposed,” the party 

sufficiently “preserves its claim.” Lynn, 592 F.3d at 578. 

When counsel requests a sentence at the bottom of the Guidelines 

range or below, the error is preserved. Id. at 581.
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Tillage’s arguments in the district court for a 

sentence below the recommended Guidelines range preserved his 

claim of procedural sentencing error on appeal. Id. These

arguments “sufficiently alert[ed] the district court of its 

responsibility to render an individualized explanation 

addressing those arguments.” Id. at 578. Therefore, we review 

any procedural sentencing error for abuse of discretion and 

reverse unless the error was harmless. Id. at 579. 

Under that standard, we conclude that any procedural 

sentencing error in this case was harmless. See Rita v. United 

States, 551 U.S. 338, 359 (2007) (“Where . . . the record makes 

clear that the sentencing judge considered the evidence and 

arguments, we do not believe the law requires the judge to write 

more extensively.”); United States v. Boulware, 604 F.3d 832, 

838 (4th Cir. 2010) (procedural error is harmless if it did not 

have a substantial, injurious effect on the result and this 

court can fairly say that the sentencing court’s explicit 

consideration of defendant’s arguments would not have altered

the sentence imposed). The district court heard from Tillage, 

his counsel, and the Government regarding an appropriate 

sentence, commented on Tillage’s extensive criminal history, 

family support, and rehabilitative efforts, and noted it had 

read the authority provided by Tillage’s counsel in support of 

his argument for a downward variance. The court then imposed a
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sentence at the bottom of the Guidelines range. We are 

satisfied that the district court considered the parties’ 

arguments and had a reasoned basis for the sentence imposed, 

Boulware, 604 F.3d at 837, and that this sentence would not be 

impacted by a more thorough explanation.

Accordingly, we affirm Tillage’s conviction and 

sentence. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED