                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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

                                             5
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.

                                            6
                  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

                                                7
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




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