                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 12a0761n.06
                                                                                         FILED
                                            No. 10-1593                             Jul 16, 2012
                            UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,                                       ON APPEAL FROM THE
                                                                    UNITED STATES DISTRICT
v.                                                                  COURT FOR THE EASTERN
                                                                    DISTRICT OF MICHIGAN
LARRY MELL MCCREARY,

          Defendant-Appellant.


                                               /

Before:          MARTIN, MOORE, and COOK, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. This is a direct appeal of a criminal conviction and

sentence. After a three-day trial, a jury found Larry Mell McCreary guilty of being a felon in

possession of a firearm. The conviction resulted from the discovery of a firearm during the

execution of a search warrant by the Detroit Police Department. McCreary argues that the firearm

should not have been admitted at trial because the affidavit submitted in support of the search

warrant contained knowingly or recklessly false statements, in violation of his Fourth Amendment

rights. McCreary also argues that the district court erred in applying a four-level sentencing

enhancement for possession of a firearm in connection with a drug trafficking offense. For the

following reasons, the judgment of the district court is AFFIRMED.
No. 10-1593
United States v. McCreary
Page 2

                                                 I.

       On April 2, 2009, the Detroit Police Department executed a search warrant at 5621 Rogers

Street, a small, two-bedroom house. Two police officers, Adrian Lawrence and his sergeant, Manual

Gutierrez, along with U.S. Immigration and Customs Enforcement agents, were conducting

surveillance on an unrelated matter in the vicinity of 5621 Rogers Street. The officers—operating

undercover—parked about a block and a half from 5621 Rogers Street. From their location, the

officers could see down an alley along the west side of the house. In the affidavit Lawrence prepared

to obtain a search warrant later that day, he described the events he witnessed that gave rise to his

suspicion that 5621 Rogers Street was being used for narcotics sales:

               On April 2, 2009, affiant set up fixed surveillance at 5621 Rogers, while at
       the location affiant observed a Mexican male walk up to the side of the location on
       the alley side of the dwelling and reach through a vent and place what appeared to be
       money and then grab a small item out of the vent and walk away. Affiant then
       observed a black female walk to the same side of the dwelling and observed the same
       transaction. While continuing fixed surveillance affiant observed a white female
       conduct the same [transaction] as the other persons. The white female (name and
       dob given upon request), who was stopped and questioned [about] the nature of being
       a[t] 5621 Rogers and stated that they were out of cocaine but have heroin and
       marijuana. Based on affiant’s experience in drug trafficking and sale affiant believes
       drugs are being sold at this location. Affiant also found that this location at 5621
       Rogers has a narcotics complaint.

       At trial, Lawrence testified that he observed the man identified in his affidavit walk to the

back corner of the house and stand facing the house. The man “st[ood] there and he was pointing

at something, and he reached for something.” Lawrence testified that, based on his experience and

training, Lawrence believed the man was buying narcotics. Lawrence testified that he “couldn’t see

what [the man] had in his hand,” but it appeared he was reaching for something. Lawrence testified
No. 10-1593
United States v. McCreary
Page 3

that he did not actually see a hand-to-hand exchange but that he saw “[w]hat [he] believe[s] was a

drug transaction.”

       After obtaining a search warrant, officers attempted to enter 5621 Rogers Street. The officers

made several unsuccessful attempts to enter before McCreary let them into the apartment. Upon

entry, the officers found both the front and back doors barricaded. McCreary was the only individual

in the house when the officers entered, and during their surveillance, the officers had not seen anyone

enter or leave the house. In the kitchen, the officers found a small digital scale and small plastic

bags. In the bathroom next to the kitchen, the officers located a hole inside a closet that connected

to the vent they had viewed outside. There was water on the floor around the toilet. In one of the

two bedrooms, the officers seized a loaded twelve-gauge shotgun and a box of .357 caliber

ammunition. The officers found neither drugs nor money in the house. There were no documents

linking McCreary to the address. According to Gutierrez, as McCreary was being arrested,

McCreary asked if he could retrieve his coat from “his bedroom.” Accompanied by the officers,

McCreary retrieved his coat where the gun had been found.

       Before trial, McCreary filed a motion to suppress the shotgun, arguing that the search warrant

did not support a finding of probable cause to search the house. The district court assumed, without

deciding, that the warrant lacked probable cause but nonetheless denied the motion to suppress,

finding that the gun was admissible based on the good faith exception to the exclusionary rule

established in United States v. Leon, 468 U.S. 897 (1984). McCreary argued that the good faith

exception to the exclusionary rule should not apply because the affidavit was “bare bones.” The
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Page 4

district court found that the affidavit was not “bare bones” and that the good faith exception to the

exclusionary rule applied.

       At trial, the parties stipulated that McCreary had previously been convicted of a felony

offense and that the shotgun affected interstate commerce because it had crossed state lines. The

sole issue for the jury was whether McCreary constructively possessed the shotgun. At the close of

the government’s evidence, McCreary moved for a judgment of acquittal pursuant to Federal Rule

of Criminal Procedure 29. The district court denied the motion and McCreary was convicted. The

district court sentenced McCreary to four years and three months’ imprisonment.

       After his conviction, McCreary moved for a new trial or a judgment notwithstanding the

verdict pursuant to Rules 33 and Rule 29(b), respectively. Citing Franks v. Delaware, 438 U.S.

154, 164 (1978), McCreary argued that Lawrence’s trial testimony revealed that the warrant affidavit

included knowingly or recklessly false statements and that the district court should not have

considered the affidavit in determining whether the search warrant was supported by probable cause.

In the alternative, he asked the district court to hold a Franks hearing to assess the falsity of the

affidavit. A Franks hearing would allow McCreary to challenge the truthfulness of Lawrence’s

statements in the underlying search warrant affidavit. See United States v. Stuart, 507 F.3d 391, 394

(6th Cir. 2007). In essence, McCreary asked the district court to reassess its ruling on his pretrial

motion to suppress the shotgun. The district court ruled that McCreary had waived his Franks

argument by failing to raise it in the pretrial suppression motion. The district court found in the

alternative that Lawrence’s trial testimony was “not necessarily inconsistent” with his affidavit and
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Page 5

McCreary had failed to demonstrate that the statements in the affidavit were made with knowledge

of their falsity or with reckless disregard for the truth.

                                                   II.

        A.      Excusing McCreary’s Waived Franks Claim

        According to McCreary, the shotgun should have been suppressed because inconsistencies

between Lawrence’s trial testimony and the warrant affidavit demonstrate that the affidavit included

statements made with knowing falsity and reckless disregard for the truth. McCreary concedes that

he waived this Franks argument by not raising it in his pretrial motion to suppress, but argues that

he has demonstrated “good cause” to excuse the waiver. See Fed. R. Crim. P. 12(e). McCreary

argues that the district court erred in its denial of his motion for a new trial by finding that McCreary

had not demonstrated “good cause” to excuse the waiver of his Franks claim, and he asks us to

vacate his conviction or remand his case to the district court to conduct a full Franks hearing.

“Under Fed. R. Crim. P. 12(e), a party ‘waives’ any pretrial defense or objection that he or she did

not raise before the trial court’s pretrial motion deadline. The rule permits the court to grant relief

from the waiver only for ‘good cause.’” United States v. Lopez-Medina, 461 F.3d 724, 738 (6th Cir.

2006). McCreary argues that the government’s failure to disclose the discrepancies between the

affidavit and Lawrence’s testimonial recollection of events was a violation of Brady v. Maryland,

373 U.S. 83 (1963), and constitutes “good cause” for McCreary’s failure to raise the falsity argument

before trial. The government argues that McCreary waived his Brady-violation claim because he

failed to raise this claim before the district court; instead McCreary argued only that the alleged

“falsehood was not revealed until trial.” Lopez-Medina, 461 F.3d at 739 (“Even when a party has
No. 10-1593
United States v. McCreary
Page 6

brought a pretrial suppression motion . . . any new suppression arguments raised for the first time

on appeal that were not contained in the original suppression motion will be deemed waived under

Rule 12(e).”).

       Furthermore, any pretrial failure by the government to disclose Lawrence’s verbal

recollection of the events does not amount to “good cause” that would excuse McCreary’s waiver

of the Franks claim. “Good cause is a flexible standard heavily dependent on the facts of the

particular case as found and weighed by the district court in its equitable discretion. At a minimum,

it requires the party seeking a waiver to articulate some legitimate explanation for the failure to

timely file.” United States v. Walden, 625 F.3d 961, 965 (6th Cir. 2010). While McCreary could

not have known exactly what the officers saw during their surveillance of the house, the doors to

5621 Rogers Street were barricaded and the only outlet to the outside that was open at the time was

the vent in the bathroom wall. McCreary, as the sole occupant of 5621 Rogers Street at the time,

would have known whether or not money and drugs were exchanged though the vent in the bathroom

wall. Thus, any lack of disclosure by the government of discrepancies in Lawrence’s story would

not have prevented McCreary from challenging the veracity of the affidavit pretrial, in compliance

with Federal Rule of Criminal Procedure 12(e).

       In the alternative, McCreary argues that ineffective assistance of counsel constitutes “good

cause” to excuse waiver. In essence, McCreary argues that if his knowledge alone was a basis to

challenge the veracity of Lawrence’s affidavit, then a reasonable defense attorney would have raised

the falsity issue in the pretrial motion to suppress. “Except in rare circumstances,” we do not review

ineffective assistance of counsel claims on direct appeal because “claims of ineffective assistance
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Page 7

must be addressed in the first instance by a district court pursuant to a claim under 28 U.S.C. §

2255.” United States v. Gunter, 620 F.3d 642, 643 n.1 (6th Cir. 2010).            The record is not

sufficiently developed—there has been no evidentiary hearing and no testimony by McCreary, his

former counsel, or by any other witnesses—to address McCreary’s ineffective assistance of counsel

claim on direct appeal. See United States v. Walden, 625 F.3d at 967 (“[A] defendant cannot

typically raise claims of ineffective assistance of counsel on direct appeal because the record is not

developed for the purpose of litigating an ineffective assistance claim and is often incomplete.”).

Because we conclude that McCreary’s ineffective assistance of counsel claim is not ripe for review,

McCreary “cannot, at this point, demonstrate ‘good cause’ to excuse his waiver under Rule 12(e).”

Lopez-Medina, 461 F.3d at 739. Because McCreary has not come forward with good cause to excuse

his waiver, we affirm the district court’s denial of his post-trial motions based on waiver.

       B.      Admission of the Shotgun as Plain Error

       McCreary next argues that regardless of whether his waiver is excused, the admission of the

shotgun was plain error warranting reversal. According to McCreary, the admission of the shotgun

was plain error because the warrant affidavit that led the officers to recover the shotgun contained

knowingly or recklessly false information. The government argues that plain error review is not

appropriate because McCreary waived his Franks challenge.             We have held that “we are

categorically without jurisdiction to hear appeals of suppression issues raised for the first time on

appeal.” United States v. Crismon, 905 F.2d 966, 969 (6th Cir. 1990). On the other hand, we have

also “applied Rule 52(b)’s plain error review to new suppression arguments raised for the first time

on appeal after a defendant’s original suppression arguments proved unsuccessful at the trial court
No. 10-1593
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Page 8

level” first. Lopez-Medina, 461 F.3d at 739 (citing United States v. Critton, 43 F.3d 1089, 1094 (6th

Cir. 1995)); see United States v. Deitz, 577 F.3d 672, 687 (6th Cir. 2009) (comparing prior cases).

We need not decide whether or not plain error review is precluded by waiver to resolve this case

because “[r]egardless of whether a Rule 12(e) waiver precludes plain error review under Rule 52(b),”

Lopez-Medina, 461 F.3d at 739, McCreary has failed to demonstrate plain error based on the

admission of the shotgun because McCreary has not shown that the affidavit contained knowingly

or recklessly false information. “An error is plain when it is obvious, affects substantial rights, and

seriously affects the fairness or integrity of judicial proceedings.” Id. This Court uses a two-part test

to evaluate claims of false statements contained in an affidavit: “(1) whether the defendant has

proven by a preponderance of the evidence that the affidavit contains deliberately or recklessly false

statements and (2) whether the affidavit, without the false statements, provides the requisite probable

cause to sustain the warrant.” United States v. Mick, 263 F.3d 553, 563-64 (6th Cir. 2001) (quoting

United States v. Charles, 138 F.3d 257, 263 (6th Cir. 1998)). Where an affidavit contains knowing

or reckless falsities, “the Leon good faith exception does not apply to save” it. United States v. West,

520 F.3d 604, 612 (6th Cir. 2008).

        McCreary argues that the information in the affidavit was proven to be false by the testimony

at trial, and that the district court erred by wrongfully applying the Leon good faith exception to the

affidavit because it included knowing or reckless falsities. McCreary has not shown that the affidavit

contained knowingly or recklessly false information because he has not shown that the trial

testimony is necessarily inconsistent with the affidavit. In his affidavit, Lawrence stated that he

observed an individual “reach through a vent and place what appeared to be money and then grab
No. 10-1593
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Page 9

a small item out of the vent and walk away.” Although Lawrence testified that he did not see drugs

or witness a hand-to-hand exchange, he did testify that he saw three individuals “reach[] for

something” while standing in the back corner of a house, conducting what appeared to him to be a

narcotics transaction. The details in the affidavit about Lawrence’s observations do not exactly

match what Lawrence stated at trial, however Lawrence’s trial testimony is not inconsistent with his

affidavit such that it would provide the basis for a Franks hearing, much less demonstrate directly

that the affidavit included statements that were knowingly or recklessly false. See Stuart, 507 F.3d

at 396 (“[I]n order to obtain a hearing, the defendant must make a substantial preliminary showing

that a false statement knowingly and intentionally, or with reckless disregard for the truth, was

included in the affidavit.” (internal quotation marks omitted)). Indeed, “[m]inor discrepancies in the

affidavit may reflect mere inadvertence or negligence, rather than the reckless falsehood that is

required for exclusion.” United States v. Elkins, 300 F.3d 638, 649, 650 (6th Cir. 2002) (“Warrant

language may fall short of technical exactitude without necessarily violating the materiality and

scienter requirements of Franks.”); see also Mick, 263 F.3d at 562-64 (finding that five separate

misstatements of various kinds in a warrant affidavit do not rise to the level of deliberate or reckless

misstatements as required by Franks). Because McCreary has, at most, demonstrated only minor

discrepancies and has not demonstrated that the affidavit contained knowingly or recklessly false

information, he cannot demonstrate falsity constituting any error—much less plain error—in the

admission of the shotgun.
No. 10-1593
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          C.     Pretrial Application of Leon Good Faith Exception

          McCreary argues that it was error for the district court to apply the good faith exception to

Lawrence’s affidavit because it was a “bare bones” affidavit “so lacking in indicia of probable cause”

that a belief in the existence of probable cause is objectively unreasonable. United States v.

Laughton, 409 F.3d 744, 748 (6th Cir. 2005).         In reviewing the denial of a pretrial motion to

suppress evidence, we review findings of fact for clear error and conclusions of law de novo. Id. at

747. Under Leon, “[c]ourts should not . . . suppress evidence obtained in objectively reasonable

reliance on a subsequently invalidated search warrant.” United States v. Carpenter, 360 F.3d 591,

595 (6th Cir. 2004) (quoting Leon, 468 U.S. 897, 922 (1984)) (internal quotation marks omitted).

The good-faith exception established in Leon not apply “where the affidavit was so lacking in indicia

of probable cause as to render official belief in its existence entirely unreasonable [or] where the

warrant application was supported by [nothing] more than a ‘bare bones’ affidavit.” United States

v. Washington, 380 F.3d 236, 241 (6th Cir. 2004). An affidavit is “bare bones” if it “states

suspicions, beliefs, or conclusions, without providing some underlying factual circumstances

regarding veracity, reliability, and basis of knowledge.” United States v. Weaver, 99 F.3d 1372,

1378 (6th Cir. 1996). We review the decision of whether or not to apply the good faith exception

de novo. Washington, 380 F.3d at 241 (citing United States v. Leake, 998 F.2d 1359, 1366 (6th Cir.

1993)).

          McCreary analogizes his case to Laughton, where this Court found that a summary of the

affiant’s law enforcement experience and two “acontextual allegations” that the defendant kept

controlled substances on his body and in his house were insufficient to allow a reasonable officer
No. 10-1593
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Page 11

to believe that the affidavit supported probable cause. 409 F.3d at 751. In Laughton, the warrant

“failed to make any connection between the residence to be searched and the facts of criminal

activity that the officer set out in his affidavit. That affidavit also failed to indicate any connection

between the defendant and the address given or between the defendant and any of the criminal

activity that occurred there.” Id. at 747.

        Contrary to McCreary’s argument, the observations articulated in the affidavit in this case

are more specific, concrete, and clear than those in Laughton. Here the warrant affidavit included

observations of suspicious transactions at the side of 5621 Rogers Street, a woman’s statement about

the presence of heroin and marijuana in the house, and the fact that there had been a previous

narcotics complaint at the residence. The district court did not err in applying the good faith

exception in denying McCreary’s motion to suppress. See United States v. Kincaide, 145 F.3d 771,

779 (6th Cir. 1998) (upholding a magistrate’s determination of probable cause where the magistrate

reviewed affidavits providing a substantial basis for concluding that a search will uncover evidence

of wrongdoing).

        D.      Appeal of Sentence as Procedurally Unreasonable

        McCreary argues that the district court improperly enhanced his sentence under United States

Sentencing Guideline section 2K2.1(b)(6), for possession of a weapon in connection with another

felony offense. McCreary seeks re-sentencing without the four-level enhancement. We review a

district court’s factual findings to support a guideline enhancement under section 2K2.1(b)(6) for

clear error and “accord due deference to the district court’s determination that the firearm was used

or possessed in connection with the other felony.” United States v. Taylor, 648 F.3d 417, 431 (6th
No. 10-1593
United States v. McCreary
Page 12

Cir. 2011) (internal quotation marks omitted); see also United States v. Ennenga, 263 F.3d 499, 503

(6th Cir. 2001). A gun is used “in connection with” another felony “if the firearm or ammunition

facilitated, or had the potential of facilitating, another felony offense.” § 2k2.1(b)(6), n. 14(A).

Under Application Note 14(B)(ii), the enhancement applies “in the case of a drug trafficking offense

in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug

paraphernalia.” The district court determined that McCreary was “knowingly and willfully engaged

in drug distribution activity, at least to the point of holding down the fort while it was going to be

resupplied with materials,” and applied the enhancement. According to McCreary, the enhancement

should not apply because the gun was not found “in close proximity” to any alleged “drugs, drug-

manufacturing materials, or drug paraphernalia.”

       “This court has articulated the ‘fortress theory’ as a means of satisfying [a subsection of

section 2K2.1(b)], which applies where a defendant has used a firearm to protect the drugs, facilitate

a drug transaction, or embolden himself while participating in felonious conduct.” United States v.

Huffman, 461 F.3d 777, 788 (6th Cir. 2006); see also Ennenga, 263 F.3d at 503. Though no drugs

or drug-manufacturing materials were found at 5621 Rogers Street, a digital scale with trace amounts

of green leaf material and white powder was present in the kitchen. Additionally, McCreary had

barricaded himself alone inside the house and at least three different individuals were observed

reaching for something near a dryer vent on the side of the house. Upon leaving the area, one

individual was found to have drugs on his person and another individual told the police about drug

activity at the house. The evidence of individuals approaching the house to purchase drugs, the

presence of the digital scale in an empty home without food or other domestic items, the barricaded
No. 10-1593
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entrances, and the gun and ammunition in the bedroom, steps away from the front door, constitute

sufficient evidence from which to deduce that the house was being used as a “fortress” for drug

activity. See Ennenga, 263 F.3d at 504 (finding that the use of weapons and an alarm system support

that the house was a “fortress,” even where firearm and drug evidence were found in different

locations within the house); see also United States v. Heighton, 272 F. App’x 469, 472 (6th Cir.

2008) (applying section 2K2.1(b)(6) enhancement where methamphetamine ingredients and drug

scale, but no drugs, were found in a house secured by firearms and surveillance system). The district

court did not err in enhancing McCreary’s sentence under United States Sentencing Guideline section

2K2.1(b)(6).

                                                III.

       Accordingly, we AFFIRM the judgment of the district court.
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       KAREN NELSON MOORE, Circuit Judge, concurring, and concurring in the

judgment of conviction. I agree with the majority that, even if we were to review the district court’s

rejection of McCreary’s Franks claim for plain error, that claim would fail. I write separately

because I believe that the greater obstacle to McCreary’s claim is the second, rather than the first,

prong of the Franks analysis.

       The discrepancies between Officer Lawrence’s statements in the affidavit and his testimony

regarding what he saw occurring at the house on Rogers Street are somewhat concerning. See United

States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). I nonetheless concur in the judgment because,

assuming that the statements were knowingly or recklessly false, I believe that McCreary’s Franks

claim fails under the second prong of the analysis. Even if the challenged statement in the affidavit

was more than a minor or technical discrepancy from Lawrence’s testimony, it was most likely an

inconsequential discrepancy. I believe that, even stripped of the statement that three individuals

placed money in the vent and retrieved a small item, the affidavit supports a finding of probable

cause to issue a warrant. Lawrence observed odd conduct that, based on his experience, resembled

a drug transaction, one purported customer informed the officers that heroin and marijuana were

available at the house, and a narcotics complaint had been lodged involving the house. See United

States v. Lattner, 385 F.3d 947, 952–53 (6th Cir. 2004); United States v. Rudolph, No. 93-2392,

1994 WL 592932, at *5 (6th Cir. Oct. 27, 1994) (unpublished opinion); see also United States v.

Funches, 327 F.3d 582, 586–87 (7th Cir. 2003). Because I believe that the warrant was sufficient,

the good-faith exception is not necessary to support the validity of the search.
