                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-3600
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Riley Carnahan,                          *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: April 18, 2012
                                   Filed: July 12, 2012
                                   ___________

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

       Riley Carnahan entered a conditional guilty plea to charges that he conspired
to distribute at least five kilograms of cocaine and 100 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)-(B), and 846, and possessed a
firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A). He appeals district court1 orders denying his motions to suppress



      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, adopting the Report and Recommendation of the Honorable Thomas
J. Shields, Chief United States Magistrate Judge for the Southern District of Iowa.
evidence and for a Franks2 hearing, and his request to plead guilty to the conspiracy
charge without admitting drug quantities alleged in the indictment. We affirm.

                           I. The Warrant Search Issues

       On April 23 and 25, 2010, police officers from Bettendorf and Davenport,
Iowa, applied for warrants to search Carnahan’s residence in Bettendorf and his
business, the Penny Juice Company, in Davenport, submitting nearly identical
supporting affidavits. Two Iowa magistrate judges issued the warrants. Officers
executing the warrants on April 30 seized cocaine, marijuana, prescription pills, guns,
cash, scales, packaging material, and drug paraphernalia. Following his indictment,
Carnahan moved to suppress this evidence, arguing the warrants lacked probable
cause. He later moved for a Franks hearing on the ground that the supporting
affidavits “deliberately omitted relevant information.” On appeal, he argues the
district court erred in denying both motions.

       Although the warrant affidavits included other supporting information, the
issues raised on appeal turn on the description of three controlled buys conducted
after an anonymous tip and extensive surveillance led police to suspect ongoing drug
trafficking at Carnahan’s residence and at Penny Juice Company. The affidavits
recited that the controlled buys were made using a confidential informant designated
John Doe. The first two buys -- one at Penny Juice Company, the other at the
residence -- took place “within the last forty-five days” before the warrant
applications. The third was made at Penny Juice Company “within the last seventy-
two hours.” The affidavits described use of nearly identical procedures for each
transaction. The Penny Juice affidavit described the first buy as follows:




      2
          Franks v. Delaware, 438 U.S. 154 (1978).

                                         -2-
      The purchase was made by John Doe. That prior to the controlled
      purchase Your Affiant’s Fellow Officer conducted a search of John Doe
      and no contraband or United States Currency was found on the person
      of John Doe. That after the search John Doe was kept under constant
      surveillance by Your Affiant and Your Affiant[’]s Fellow Officers. Sgt.
      Kees[h]an provided John Doe with prerecorded United States Currency
      which was to be used for the purchase of powder cocaine. Your
      Affiant’s Fellow Officers[] then observed John Doe proceed directly to
      the business named Penny Juice . . . where John Doe entered . . . . John
      Doe remained for a short time then exited. John Doe then returned to
      Your Affiant’s Fellow Officer. John Doe was kept under constant
      surveillance by Your Affiant’s Fellow Officers and John Doe had no
      opportunity to go to any other business . . . and . . . had no opportunity
      to pick up anything from the ground or to meet with anyone going to or
      leaving the business. That once John Doe returned to Your Affiant’s
      Fellow Officer’s location John Doe immediately relinquished the
      purported powder cocaine to Your Affiant’s Fellow Officer. . . . John
      Doe stated John Doe did purchase the powder cocaine from Carnahan
      while inside the Penny Juice . . . building.

The powder tested positive for cocaine.

       1. Carnahan first argues the district court abused its discretion in denying his
motion for a Franks hearing because he made an adequate preliminary showing that
the police officers knew and intentionally failed to disclose that John Doe had prior
misdemeanor convictions relating to bad checks, was now cooperating with law
enforcement to avoid a misdemeanor cocaine possession charge, and was believed to
have engaged in recreational cocaine use. He asserts that these non-disclosures
rendered materially false the officers’ averrals that John Doe was a mature person of
truthful reputation who had no motive to falsify information.

      To warrant a hearing on the ground that material information was omitted from
a warrant affidavit, defendant must make a “substantial preliminary showing” of
deliberate falsehood or reckless disregard for the truth. United States v. Williams,

                                          -3-
477 F.3d 554, 557-58 (8th Cir. 2007). Here, there was no showing of deliberate
falsehood. The officers never said the informant had no criminal history. Rather,
they checked boxes on the state court warrant application form saying the informant
was of truthful reputation and had no motivation to falsify information, and then
explained that John Doe demonstrated truthfulness because his information was
corroborated by an anonymous tip, ongoing surveillance, and the controlled buys.

       “[B]ecause a warrant application need only show facts establishing probable
cause, reckless[ disregard for the truth] may be inferred from the omission of
information from an affidavit only when the material omitted would have been clearly
critical to the finding of probable cause.” United States v. Smith, 581 F.3d 692, 695
(8th Cir. 2009) (quotation omitted). Omitting that a confidential informant has a
criminal record or is cooperating does not satisfy this rigorous standard when the
informant’s information is partially corroborated or his general credibility is
otherwise not significant to the probable cause inquiry. See, e.g., Williams, 477 F.3d
at 559-60; United States v. Rivera, 410 F.3d 998, 1002 (8th Cir. 2005); United States
v. Flagg, 919 F.2d 499, 501 (8th Cir. 1990). Here, the officers personally observed
and monitored John Doe’s conduct in making controlled buys. The only information
John Doe provided was that, while inside, he purchased the cocaine from Carnahan.
As explained in the affidavits, that information was at least partially corroborated and
in any event was not critical to establish probable cause for warrant searches of the
premises. The district court did not abuse its discretion in denying a Franks hearing.3




      3
       Carnahan also argues that minor inconsistencies in describing the controlled
buys were false statements or made with reckless disregard for the truth. Some of the
alleged inconsistencies were not argued to the district court and therefore may not be
raised on appeal. See United States v. Neumann, 887 F.2d 880, 886 (8th Cir. 1989)
(en banc), cert. denied, 495 U.S. 949 (1990). None was material to the showing of
probable cause. See United States v. Formaro, 152 F.3d 768, 770-71 (8th Cir. 1998).

                                          -4-
       2. Carnahan next argues that the warrant affidavits lacked a sufficient showing
of probable cause because the controlled buys were stale events and the earlier
anonymous tip and surveillance did not independently establish probable cause. The
affidavits recited that the police corroborated the anonymous tip with extended
surveillance followed by three controlled buys. The buys were conducted with the
kind of careful procedures that produce highly reliable evidence of ongoing drug
trafficking. See United States v. Rodgers, 732 F.2d 625, 630-31 (8th Cir. 1984). The
third buy, made within 72 hours of the warrant applications, can hardly be deemed
stale information. Moreover, “[i]n investigations of ongoing narcotics operations,
intervals of weeks or months between the last described act and the application for
a warrant does not necessarily make the information stale.” United States v. Jeanetta,
533 F.3d 651, 655 (8th Cir.) (quotation omitted), cert. denied, 555 U.S. 1079 (2008).

       Having carefully reviewed the lengthy, detailed affidavits, we agree with the
district court that they showed “a consistent pattern of drug trafficking activity
spanning a six month period of time with no indication that the activity has ceased,”
and that “the issuing judge could fairly believe that each of the premises sought to be
searched would contain evidence of drug trafficking.” Here, as in United States v.
Montes-Medina, the totality of the information contained in the affidavits established
“a fair probability that contraband or evidence of a crime [would] be found in a
particular place,” 570 F.3d 1052, 1059-60 (8th Cir. 2009), quoting Illinois v. Gates,
462 U.S. 213, 238 (1983). Carnahan’s suggestion that the warrants lacked probable
cause because they were not executed for five to seven days after issuance is without
merit. See Formaro, 152 F.3d at 771. The motion to suppress was properly denied.

                             II. The Guilty Plea Issue

       Count 1 of the indictment charged that Carnahan and others conspired “to
knowingly distribute at least five kilograms of a mixture containing cocaine and at
least 100 kilograms of a mixture containing marijuana.” Carnahan filed a motion

                                         -5-
seeking leave to “enter a guilty plea to Count 1, that is conspiracy to distribute
cocaine and marijuana in violation of [21 U.S.C. §§] 841(a)(1) and 846,” but stating
he “is not willing to enter his plea to the quantities” alleged in the indictment. The
government opposed this motion. After briefing, the district court denied the motion
on the ground “that a defendant has no right to plead guilty to a charge other than that
in the indictment.” With the government’s agreement, Carnahan then entered a
conditional guilty plea to Counts 1 and 2, reserving the right to appeal this ruling. By
pleading to the drug quantities alleged, Carnahan became subject to a mandatory
minimum ten-year prison sentence and an increased statutory maximum sentence on
Count 1, see 21 U.S.C. § 841(b)(1)(A), plus a consecutive minimum five years on
Count 2. At sentencing, the parties agreed that no drug quantity findings were
necessary because the mandatory minimum sentences established a base from which
reductions based on the government’s substantial assistance motion would be
determined. After hearing evidence and argument on that issue, the court granted the
substantial assistance motion and sentenced Carnahan to 75 months in prison on
Count 1 and a consecutive 40 months on Count 2.

       On appeal, Carnahan argues that the district court abused its discretion in
denying his guilty plea motion because “drug quantity is a sentencing enhancement
and not a formal element of the offenses set out in 21 U.S.C. § 841.” That assertion
is not entirely true -- drug quantity is an element of the offense when it increases the
statutory maximum sentence prescribed for an indeterminate quantity. See United
States v. Turner, 603 F.3d 468, 471 (8th Cir.), cert. denied, 131 S. Ct. 820 (2010);
United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008), cert. denied, 129 S. Ct.
2021 (2009); United States v. Sheppard, 219 F.3d 766, 767-69 (8th Cir. 2000), cert.
denied, 531 U.S. 1200 (2001). “A fact . . . that increases the maximum punishment
for an offense is the functional equivalent of an element of a greater offense.” United
States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.) (quotation omitted), cert.
denied, 531 U.S. 1026 (2000).



                                          -6-
       A defendant pleads “to the indictment or information.” Fed. R. Crim. P.
10(a)(3). It logically follows, as the district court recognized, that “[a] defendant has
no absolute right to plead guilty to a charge other than that in the indictment.” United
States v. Michel-Galaviz, 415 F.3d 946, 948 (8th Cir. 2005). As the Ninth Circuit
explained in United States v. Gray, 448 F.2d 164, 168 (9th Cir. 1971), “a plea to a
lesser included offense may not be tendered, and cannot be accepted by the court,
unless the government consents. Even then, the better practice would be for the
government to file a superseding information or indictment charging the lesser
offense.” We reject dicta to the contrary in United States v. Thomas, 355 F.3d 1191,
1198 (9th Cir. 2004).

        “A plea of guilty is the equivalent of admitting all material facts alleged in the
charge.” United States v. Apker, 174 F.3d 934, 940 (8th Cir. 1999); see United States
v. White, 408 F.3d 399, 402 (8th Cir.), cert. denied, 546 U.S. 1025 (2005); O’Leary
v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988). The discretion to reject a
tendered guilty plea is most often exercised when the defendant cannot or will not
provide the adequate factual basis for the plea that Rule 11(b)(3) of the Federal Rules
of Criminal Procedure requires. See, e.g., United States v. Ajijola, 584 F.3d 763,
766-67 (7th Cir. 2009), cert. denied, 130 S. Ct. 2421 (2010); United States v.
Williams, 557 F.3d 556, 559-60 (8th Cir.), cert. denied, 130 S. Ct. 237 (2009);
United States v. Martin, 528 F.3d 746, 750-51 (10th Cir.), cert. denied, 555 U.S. 960
(2008). Here, Carnahan’s motion declared that he was unwilling to agree to the drug
quantity allegations in Count 1 of the indictment. This resulted in an insufficient
factual basis for the offense charged, a sound reason for the district court’s exercise
of its discretion to reject the proffered plea, as we expressly held in United States v.
Brown, 331 F.3d 591, 594-95 (8th Cir. 2003). Brown is controlling precedent; the
denial of Carnahan’s plea motion must be affirmed.

      The judgment of the district court is affirmed.
                     ______________________________

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