                                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                           FILED
                                                                 U.S. COURT OF APPEALS
                      ------------------------------------------- ELEVENTH CIRCUIT
                                                                   FEBRUARY 13, 2008
                                   No. 06-13434
                                                                    THOMAS K. KAHN
                             Non-Argument Calendar
                                                                         CLERK
                      --------------------------------------------

                     D.C. Docket No. 06-60140-CR-WJZ

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                        versus

JAMAR JOHNSON,

                                                       Defendant-Appellant.

            ----------------------------------------------------------------
                 Appeal from the United States District Court
                       for the Southern District of Florida
            ----------------------------------------------------------------

                               (February 13, 2008)

Before EDMONDSON, Chief Judge, TJOFLAT and HULL, Circuit Judges.

PER CURIAM:
       Defendant-Appellant Jamar Johnson appeals his conviction and 120-month

sentence for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). No

reversible error has been shown; we affirm.

       Johnson first argues that the district court erred in not conducting a Franks

v. Delaware, 98 S.Ct. 2674 (1978), hearing on his motion to suppress. The motion

was based on an omission from the warrant affidavit of a prior warrantless entry

into his residence. He contends that this omission was material and rendered the

warrant invalid.1

       Here, the search warrant in question was issued on the affidavit of an agent

with the Federal Bureau of Investigation (“FBI”) who had interviewed two minor

runaway girls about Johnson. One girl informed officers that Johnson held them,

along with their minor cousin, against their will and tried to force them into

prostitution. The girl indicated that Johnson had, among other things, two or three

guns in his house. Upon receipt of this information, officers traveled to a

residence at the direction of the two girls. There, officers found the third girl

standing in the driveway with another woman. And a car matching the description

given was observed driving suspiciously in the neighborhood. All three girls


  1
    Johnson also argues that a hearing should have been conducted to determine whether the prior
warrantless entry was valid. But this argument is irrelevant to whether the entry’s omission from
the warrant rendered it invalid.

                                               2
identified Johnson as the driver; and upon questioning by the police, he admitted

living at the residence. Though not included in the affidavit, officers, after

stopping Johnson, conducted a protective sweep of his residence to see if any

others were being held against their will but did not seize any evidence. The next

day, pursuant to the warrant, officers searched Johnson’s residence and discovered

the firearms forming the basis of the instant indictment.

      While generally, we review a district court’s denial of an evidentiary

hearing for an abuse of discretion, we have not stated the precise standard of

review for the denial of a Franks hearing. United States v. Arbolaez, 450 F.3d

1283, 1293 (11th Cir. 2006). But where, as here, the more exacting de novo

standard is satisfied, we need not address the issue. Id.

      Affidavits supporting arrest warrants are presumptively valid. Franks, 98

S.Ct. at 2684. A defendant may challenge the veracity of an affidavit in support of

a search warrant only if he makes a “substantial preliminary showing” that (1) the

affiant deliberately or recklessly included false statements, or failed to include

material information, in the affidavit; and (2) the challenged statement or omission

was essential to the finding of probable cause. Arbolaez, 450 F.3d at 1293 (citing

Franks, 98 S.Ct. at 2676). Only if a defendant makes such a showing is he entitled

to an evidentiary hearing on the issue. Id.

                                          3
      Here, Johnson failed to make the required showing entitling him to a

hearing. Johnson did not meet the first part of the Franks test because the

omission was not material. The warrant did not include information or evidence

obtained from the protective sweep; instead, it was based on statements made

before, and not as a result of, the warrantless entry. See United States v. Jenkins,

901 F.2d 1075, 1080 (11th Cir. 1990) (explaining that insignificant and immaterial

omissions will not invalidate a warrant). Johnson has not met the second part of

the Franks test either because inclusion of the prior warrantless entry would not

have affected the probable cause determination. The warrant was supported by

specific, detailed testimony of a girl who stated that she and two others were held

involuntarily at Johnson’s house and that Johnson had guns in the house. This

information was corroborated when the girls directed officers to Johnson’s

residence. Accordingly, the district court did not err in denying Johnson’s motion

to suppress without a hearing.

      At trial, the government introduced evidence that Johnson held the girls

against their will, attempted to force them into prostitution, and displayed firearms

to them. Johnson argues that the district court erred, under Fed.R.Evid. 403 and

404, in admitting this evidence because it only showed bad character, was




                                          4
unrelated to the charge of possession of firearms by a convicted felon, and was

likely to inflame the jury.

      We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006), cert. denied, 127

S.Ct. 1305 (2007). Under Fed.R.Evid. 404(b), evidence of uncharged crimes “is

not admissible to prove the character of a person in order to show action in

conformity therewith.” But evidence of uncharged crimes is not extrinsic under

Rule 404(b) if it is (1) an uncharged offense that arose out of the same transaction

as the charged offense, (2) necessary to complete the story of the crime, or

(3) inextricably intertwined with the evidence about the charged offense. United

States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004) (citation omitted). And an

uncharged crime about the chain of events explaining the context, motive and set-

up of the crime properly is admitted if linked in time and circumstances with the

charged crime or forms an integral and natural part of an account of the crime to

complete the story of the crime for the jury. United States v. McLean, 138 F.3d

1398, 1403 (11th Cir. 1998) (citation and quotation omitted).

      The district court did not abuse its discretion in admitting evidence of

kidnaping and sexual exploitation because this evidence (1) arose from the same

transaction as the charged offense, (2) established the context under which the

                                          5
girls saw the firearms and Johnson’s motive for possessing them, and (3)

explained to the jury why law enforcement officers were investigating Johnson.

We conclude that this evidence inextricably was intertwined with the charged

offense.

       The probative value of this evidence was high because it provided the jury

with context and circumstances of the crime and Johnson’s motive for possessing

the firearms. We stress that the district court instructed the jury that Johnson was

on trial only for the crime charged in the indictment. We conclude that the

probative value of this evidence is not substantially outweighed by unfair

prejudice; and the evidence, therefore, is not subject to exclusion under

Fed.R.Evid. 403. United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir.

1992).2

       Johnson also contends that his sentence violates United States v. Booker,

125 S.Ct. 768 (2005), because his base offense level and enhancements were

based on uncharged conduct not proven to a jury beyond a reasonable doubt. The

district court determined Johnson’s base offense level pursuant to a cross-

reference provision in the felon-in-possession Guideline, U.S.S.G. §


  2
    Johnson posits that the government could have proven its case without the uncharged conduct.
But the government was not required to proffer only enough evidence to allow the jury to convict.
Id. at 722.

                                               6
2K2.1(c)(1)(A), because he possessed the firearms in connection with another

offense; then the court applied the kidnaping Guideline, U.S.S.G. § 2A4.1.3

Johnson’s Guidelines range of 360 months to life imprisonment exceeded the

statutory maximum of 120 months, 18 U.S.C. § 924(a)(2); so the statutory

maximum became the advisory Guidelines range.

           Because Johnson raised his Booker claim below, we review it de novo on

appeal, but reverse only for harmful error. United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005) (citation omitted). Here, the district court committed no Booker

error because it sentenced Johnson under advisory guidelines. See United States

v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005) (explaining that Booker error

occurs when the Guidelines are applied as mandatory). And even if the district

court felt bound to apply a 120-month sentence4 under the Guidelines, Johnson

cannot show harmful error. The court clearly stated that, even if the kidnaping

cross-reference had not applied and the Guidelines range was less than the

statutory maximum, it still would have imposed the same 120-month sentence.


   3
   Johnson’s offense level also was enhanced by a total of eight points for firearm use and sexual
exploitation. See U.S.S.G. § 2A4.1(b)(3), (5).
       4
      The court noted the advisory nature of the Guidelines several times during the sentencing
hearing. But before imposing sentence the court commented that “the bottom of the guideline range
is higher than the statutory maximum. So I have to impose 120 months. I have no discretion.”
Based on the record as a whole, however, it is clear that the district court treated the Guidelines as
advisory.

                                                  7
See United States v. Cain, 433 F.3d 1345, 1348 (11th Cir. 2005) (explaining that

to establish harmless error, “the [g]overnment must . . . point to a statement by the

district court indicating it would have imposed the same or a higher sentence if it

had possessed the discretion to do so.”).5

       AFFIRMED.




  5
    To the extent Johnson argues that his Guidelines calculation was incorrect because it was based
on uncharged conduct, his argument is meritless. See United States v. Hamaker, 455 F.3d 1316,
1336 (11th Cir. 2006) (explaining that, even after Booker, district courts are required to consider all
relevant, not just charged, conduct in calculating the Guidelines range).

                                                  8
