501 F. App'x 751
10th Cir.2012Background
- Griffin moved to suppress evidence from a search of his Fulton Street residence; the district court denied suppression.
- The warrant was issued by a state judge and supported by an unsigned affidavit prepared by Officer Mohlman; the district court allowed the unsigned copy to stand.
- After suppression denial, Griffin pled guilty to one count of felon in possession of a firearm and reserved appellate rights on suppression and sentencing issues.
- PSR calculated total offense level at 12 with a two-level acceptance of responsibility reduction, but the offense level for the short-barreled shotgun was treated differently at sentencing.
- The district court sentenced Griffin to 30 months, bottom of the guidelines range, and denied requests for a downward departure and a variant sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause and warrant validity | Griffin contends the affidavit failed to show probable cause. | Government argues the totality of the circumstances established probable cause. | Probable cause existed; suppression denied. |
| Effect of unsigned affidavit under Rule 41 | Unsigned copy violates Rule 41 and invalidates the warrant. | Rule 41 does not require a signed affidavit when the judge is present; no prejudice shown. | No suppression due to unsigned affidavit; judge properly relied on the testimony. |
| Base offense level for short-barreled shotgun | District court erred in applying base level 18 for a short-barreled shotgun absent clear evidence. | Record supports barrel length as 15.25 inches, justifying base level 18. | There is enough evidence to support the short-barreled finding; base level 18 affirmed. |
| Downward departure under § 5H1.4 and variance | Griffin’s medical condition warrants departure or a variance. | Court properly exercised discretion; denial reviewed only for abuse of discretion. | Court lacked jurisdiction to review discretionary denial of downward departure; variance denial affirmed. |
| Reasonableness of sentence after procedural challenges | Sentence should be lower under § 3553(a) factors due to offense nature and Griffin’s history. | Presumption of reasonableness applies; district court weighed factors appropriately. | Sentence within range; substantively reasonable. |
Key Cases Cited
- Danhaur v. United States, 229 F.3d 1002 (10th Cir. 2000) (Leon good-faith exception applies to warrant execution)
- United States v. Leon, 468 U.S. 897 (U.S. Supreme Court, 1984) (good-faith reliance on warrant)
- United States v. Basham, 268 F.3d 1199 (10th Cir. 2001) (probable cause and totality of the circumstances)
- United States v. Haymond, 672 F.3d 948 (10th Cir. 2012) (deferential review of probable cause and magistrate decisions)
- United States v. Gantt, 679 F.3d 1240 (10th Cir. 2012) (reasonableness review of sentences; guidelines presumptively reasonable)
- United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006) (presumptive reasonableness of within-guidelines sentences)
- United States v. Parker, 553 F.3d 1309 (10th Cir. 2009) (within-guidelines sentence presumptively reasonable)
- United States v. McComb, 519 F.3d 1049 (10th Cir. 2007) (record support for sentencing decisions; rebutting presumption)
- United States v. Cooper, 654 F.3d 1104 (10th Cir. 2011) (adequacy of brief and waiver considerations)
- United States v. Sierra-Castillo, 405 F.3d 932 (10th Cir. 2005) (scope of review for downward departures)
- People v. Padilla, not applicable (Colorado) (Colorado law argument not preserved for federal review)