U.S. v. Looney

• Decision Date: 23 June 2008
• Docket Number: No. 06-10605.,06-10605.
• Citation: 532 F.3d 392
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Steven LOONEY; Mary Beth Looney, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

532 F.3d 392

UNITED STATES of America, Plaintiff-Appellee, v. Donald Steven LOONEY; Mary Beth Looney, Defendants-Appellants.

No. 06-10605.

United States Court of Appeals, Fifth Circuit.

June 23, 2008.

Susan B. Cowger (argued), Dallas, TX, for Plaintiff-Appellee.

Thomas L. Allensworth, Allensworth Law Firm, Wichita Falls, TX, for Donald Steven Looney.

Jason Douglas Hawkins, Richard Alan Anderson (argued), Dallas, TX, for Mary Beth Looney.

Appeals from the United States District Court for the Northern District of Texas.

Before REAVLEY, JOLLY and GARZA, Circuit Judges.

PER CURIAM:

Donald and Mary Beth Looney, husband and wife, were convicted in a jury trial for conspiracy and possession of methamphetamine with intent to distribute and for possessing firearms in furtherance of drug-trafficking crimes. Both were sentenced to 548 months in prison. Mr. Looney appeals his conviction on grounds of the district court's denial of his motion to suppress. Ms. Looney appeals her sentence; she is effectively serving a life sentence for her first conviction. For the reasons that follow, we AFFIRM the conviction of Mr. Looney. We AFFIRM the sentence of Ms. Looney.

I.

Mr. Looney argues that the district court erroneously denied his motion to suppress. In his motion to suppress, Mr. Looney alleged that the evidence seized from his home pursuant to a search warrant (methamphetamine and four guns) must be suppressed because the search warrant was obtained with false or misleading information.

In Franks v. Delaware, the Supreme Court set out the legal principles that govern how courts are to address a defendant's allegations of false statements in warrant affidavits:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

However, even if the defendant proves that one or more statements in the affidavit are false, and yet fails to prove that the affiant deliberately or recklessly included such false information in the affidavit, the court may consider the entire affidavit — without any excision — under the good-faith exception to the exclusionary rule. See United States v. Cavazos, 288 F.3d 706, 710 (5th Cir.2002) ("After several hearings ... the district court found no evidence to suggest that the officers had deliberately or recklessly provided the false information. Having made these findings, the good-faith exception would have allowed the court to consider the entire affidavit, and the analysis should have ended there.") "The good-faith exception provides that where probable cause for a search warrant is founded on incorrect information, but the officer's reliance upon the information's truth was objectively reasonable, the evidence obtained from the search will not be excluded." Id. at 709. "If the good-faith exception applies, we need not reach the question of probable cause." Id. at 710 (brackets, internal quotation marks and citation omitted).

In his brief before this court, Mr. Looney points to eight alleged "factual misstatements" in the search warrant affidavit. He contends that these eight statements should be excised from the affidavit, either because they are false and were made intentionally or with a reckless disregard for the truth, or because they are based on information supplied by a witness whose credibility and basis for knowledge are not established in the affidavit. He contends further that, once these statements are excised, the remaining portion of the affidavit is insufficient to provide probable cause for issuance of the warrant.

In his motion to suppress, however, and at the suppression hearing as well, Mr. Looney identified only one alleged false statement in the affidavit. He did not allege in his motion, nor did he argue at the hearing, that the affidavit included the other allegedly false statements that are now itemized in his brief; nor did he contend in the district court, as he now contends, that the affidavit was based on information supplied by a witness whose credibility and basis for knowledge were not established on the face of the affidavit. This court has held that "failure to raise specific issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues or arguments for appeal." United States v. Pope, 467 F.3d 912, 918-19 (5th Cir.2006).

The district court found that although Mr. Looney had shown by a preponderance of the evidence that the single statement identified in his motion to suppress was false or misleading, he had failed to prove that the affiant officer had acted deliberately or with reckless disregard for the truth when he included that statement in the affidavit. The court stated that, based on the officer's "testimony and his forthright and honest demeanor on cross examination," the officer's "testimony regarding his intentions is credible and that any error ... was inadvertent and not deliberate or reckless." Once it concluded that Mr. Looney had failed to meet his burden of proving that the affiant officer acted deliberately or with reckless disregard for the truth, the district court held that the good-faith exception applied. Thus, the district court examined the entire affidavit, including the challenged statement, and concluded that it established probable cause to search Mr. Looney's residence.

The district court's factual finding that the affiant officer did not deliberately or recklessly include the false statement in the affidavit cannot be disturbed unless it is clearly erroneous. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.2003). Based on our review of the record, we find no basis to overturn the district court's assessment.

Furthermore, assuming that Mr. Looney did not waive his argument regarding the other statements in the affidavit that he challenges for the first time on appeal, the district court did not plainly err by failing, sua sponte, to excise those statements. See Pope, 467 F.3d at 919 n. 20 (holding that, assuming suppression argument not waived, there was no plain error). Mr. Looney presented no evidence at the suppression hearing regarding the alleged falsity of the statements or the credibility of the witness who supplied information to the affiant officer. In short, the district court did not err in determining that the requirements of the Fourth Amendment were met for the search of Mr. Looney's residence, based on the challenged affidavit.

We will now turn to address the sentencing issues raised by Ms. Looney.

II.

As we have previously noted, Ms. Looney was sentenced to 548 months (45 years) of imprisonment. Although the record indicates she was not spotless, she nevertheless had no previous convictions. Yet, because she was 53 years old at the time of sentencing, she was given effectively a life sentence; if she can do her part and finish her sentence, she will be about ninety-eight years old when she is released to the unimprisoned world once again. The judge, however, had little discretion in imposing this sentence. As her counsel observed at sentencing, the district court's sentencing discretion was severely limited. Because of the way the indictment was stacked by the prosecutor, Ms. Looney was subject to mandatory minimum terms of imprisonment for forty years (ten years for the drug conspiracy and possession with intent to distribute counts, five consecutive years for the first gun count, and twenty-five consecutive years for the second gun count). Although thirty years of her sentence can be attributed to possessing guns in furtherance of her methamphetamine dealing, there is no evidence that Ms. Looney brought a gun with her to any drug deal, that she ever used one of the guns, or that the guns ever left the house. Because of our serious concerns regarding the harshness of Ms. Looney's sentence, we have very carefully considered Ms. Looney's arguments, which we now turn to address.

A.

Ms. Looney contends that her sentence is procedurally unreasonable for two reasons. She argues first that the district court erroneously thought the Guidelines were mandatory. But the district court, in its written statement of reasons, stated that it recognized that the Guidelines were "advisory only."

Next, Ms. Looney contends that the district court's oral statement of reasons was not sufficient. The only argument Ms. Looney made before the district court concerning her sentence length, however, was a request for the district court to take into consideration the fact that she had many people who were concerned about her and supported her. The district court...