947 F.2d 1232 | 5th Cir. | 1991
UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee,
v.
Leonard Charles DANCY, Defendant-Appellee-Cross-Appellant.
No. 91-2023.
United States Court of Appeals,
Fifth Circuit.
Nov. 14, 1991.
Jeffery A. Babcock, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Paula Offenhauser, Edward F. Gallagher, III, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellant-cross-appellee.
Gerald E. Bourque, Houston, Tex., for defendant-appellee-cross-appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before GOLDBERG, SMITH, and DUHE, Circuit Judges.
DUHE, Circuit Judge.
This case presents two issues for review. The first is whether Sentencing Guideline section 2K2.1(b)(2), mandating a two-level upward adjustment for possession of a firearm when the firearm is stolen, requires the possessor to know that it was stolen. The second is whether evidence should be suppressed when the search warrant included a correct street address for the premises to be searched but no other description of the place. We hold that section 2K2.1(b)(2) applies regardless of whether the possessor knew that the firearm was stolen. We also hold that a correct street address is an adequate description of premises to be searched. The denial of the Defendant's motion to suppress is therefore affirmed, but we remand for resentencing in light of our holding in this case and in United States v. Singleton, 946 F.2d 23 (5th Cir.1991).
I.
The Federal Bureau of Investigation and other law enforcement agencies executed a search warrant that described the place to be searched only as 5121 Rapido Drive, Houston, Texas. One of the FBI agents swore to an affidavit and obtained the warrant on the same day that he executed it. Three firearms were found; one of them had been stolen five and one-half years before. The Defendant, Leonard Charles Dancy, moved to suppress this evidence, arguing that the search warrant did not describe the place to be searched with particularity. The district court denied the motion.
The Defendant admits that he possessed those firearms while serving a ten-year probationary sentence pronounced by a Texas state court. He also admits that one gun was stolen, but he denies knowing that it was stolen. He pleaded guilty to violating 18 U.S.C.A. § 922(g) (West Supp.1991) (a firearms offense), conditioned on and reserving his right to appeal the denial of his motion to suppress. He has properly appealed this issue.
The United States Probation Office, after the Defendant's guilty plea, asked that the Defendant receive the two-level upward adjustment because the possessed firearm was stolen. See United States Sentencing Comm'n, Guidelines Manual § 2K2.1(b)(2) (1990). The district court refused, holding that the guideline does not apply if the defendant did not know that the firearm was stolen. The Government appeals on this issue. The Defendant was sentenced to imprisonment for ten months, the minimum prescribed by the offense level that the district court applied. Five of the ten months were to be served as home detention.
II.
The issue whether knowledge is required under section 2K2.1(b)(2) of the Sentencing Guidelines is controlled by our recent decision in Singleton. In that case, we held that section 2K2.1(b)(2) does not require knowledge that the firearm was stolen. We therefore remand for resentencing in light of Singleton.
III.
A correct street address in a search warrant, even if no other description is given, is particular enough to withstand constitutional scrutiny. The warrant must describe the place to be searched in enough detail for the executing officer (1) to locate the premises with reasonable effort, and (2) to be sure that the wrong premises are not mistakenly searched. United States v. Prout, 526 F.2d 380 (5th Cir.), cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976). A correct street address meets both prongs of this test. This Court has even held that an incorrect street address may suffice under the Leon good faith exception. United States v. Gordon, 901 F.2d 48 (5th Cir.1990) (construing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)), cert. denied, --- U.S. ----, 111 S.Ct. 510, 112 L.Ed.2d 522 (1990). A fortiori, a correct street address is sufficiently particular.
For the foregoing reasons, the matter is
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.