               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0140n.06

                                       Case No. 15-3042

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Mar 14, 2016
UNITED STATES OF AMERICA,                           )                     DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )      ON APPEAL FROM THE UNITED
v.                                                  )      STATES DISTRICT COURT FOR
                                                    )      THE NORTHERN DISTRICT OF
CLYDE FOUNTAIN,                                     )      OHIO
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )


       BEFORE: SILER, COOK, and DONALD, Circuit Judges.

       COOK, Circuit Judge. After coordinating two controlled buys, police executed a search

warrant for Clyde Fountain’s apartment, where they discovered drugs, ammunition, and a

handgun. A jury convicted Fountain of being a felon in possession of a firearm and possession

with intent to distribute crack cocaine. He now appeals the district court’s denial of a Franks

hearing to challenge the veracity of statements in the search-warrant affidavit and his sentencing

enhancement under the Armed Career Criminal Act (ACCA).                We AFFIRM Fountain’s

conviction, VACATE his sentence, and REMAND for resentencing.

                                               I.

       Prompted by a tip from a confidential informant, the Cleveland Police Department

arranged two controlled buys of drugs from Fountain’s apartment. Each time, police met the
Case No. 15-3042
United States v. Fountain

informant at a predetermined location, searched him for money and drugs, and fitted him with an

audio transmitter.    Police observed the informant enter the building, heard conversation

suggesting a drug deal was taking place, and saw him return with a substance resembling crack

cocaine. The informant told police that he purchased the drugs from inside Fountain’s apartment

and identified Fountain from a photograph. Detective Ricardo Ruffin—an officer who observed

the controlled buys—swore to these facts before obtaining a warrant to search the apartment.

With the warrant in hand, police went to the residence, saw Fountain and another man exit the

building, and detained them. Using keys discovered in Fountain’s pants pocket, the officers

entered the apartment and found a handgun, ammunition, and crack cocaine.

       Before trial, Fountain moved to suppress the evidence discovered at his apartment and for

a Franks hearing to challenge Ruffin’s search-warrant affidavit.        The district court denied

suppression without a hearing. Following a two-day trial, a jury convicted Fountain on one

count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e),

and one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C).

       The presentence report listed four ACCA predicates, and Fountain objected to two: a

1972 conviction for breaking and entering and a 1981 conviction for aggravated burglary. The

district court agreed that the breaking-and-entering charge could not serve as a predicate offense.

But it disagreed about the aggravated-burglary conviction, counting it as a violent felony under

the ACCA’s residual clause. Using these three qualifying convictions, the court imposed an

enhanced sentence of 211 months’ imprisonment. Fountain now appeals the denial of a Franks

hearing and his qualification for sentencing as an armed career criminal.




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Case No. 15-3042
United States v. Fountain

                                                II.

   A. Denial of a Franks Hearing

       Fountain alleges that Detective Ruffin both included misleading statements and omitted

material information from the search-warrant affidavit. Specifically, he claims that Ruffin’s

statement that the police conducted “controlled buys” from “the premises” conveys the

misleading impression that officers observed the informant enter Fountain’s apartment

(Apartment 2) as opposed to the two-and-a-half story residence encompassing the apartment.

This misrepresentation, he presses, merits suppression.

       Fountain concedes, however, that he neglected to raise this argument below, and thus

only a showing of plain error warrants relief. United States v. Lopez-Medina, 461 F.3d 724, 739

(6th Cir. 2006) (applying 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 level” (citing United States v. Critton, 43 F.3d 1089, 1094 (6th Cir. 1995))). Fountain

cannot show error, let alone plain error, in the denial of a Franks hearing.

       An affidavit supporting a search warrant is presumed valid.             Franks v. Delaware,

438 U.S. 154, 171 (1978). But a defendant is entitled to a Franks hearing to attack its veracity if

he makes a “substantial preliminary showing” that (1) the affiant knowingly or recklessly

included a false statement in—or omitted material information from—the affidavit, and (2) the

allegedly false statement or material omission “is necessary to the probable cause finding.”

United States v. Rose, 714 F.3d 362, 370 (6th Cir. 2013) (citing Franks, 438 U.S. at 171–72).

The defendant has a “heavy burden,” as he must “point to specific false statements that he claims

were made intentionally or with reckless disregard for the truth” and “accompany his allegations

with an offer of proof.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990) (citing


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United States v. Fountain

Franks, 438 U.S. at 171). If the defendant succeeds in making this preliminary showing and a

Franks hearing reveals a material falsehood or omission, evidence obtained as a result of the

search warrant must be suppressed. Franks, 438 U.S. at 156.

                                     1. Misleading Statements

       Though Fountain admits none of the statements in the affidavit are false, he claims the

statement that police made two “controlled buys” from “the premises” is misleading. He argues

that controlled buys require continuous police observation, and that—because it was impossible

for the police to observe the informant enter Fountain’s specific apartment—the affidavit

misleadingly implies that Ruffin saw the informant enter Apartment 2 to purchase crack cocaine.

       Fountain cites no authority, however, suggesting that a controlled buy necessarily entails

continuous visual observation by police. Though he attempts to marshal support from United

States v. Smith, 337 F. App’x 500 (6th Cir. 2009), that case articulates no such requirement. See

id. at 504 (affirming the denial of the suppression motion when the police “maintain[ed] a visual

on the confidential informant going to and coming from the residence” even though they could

not see the actual purchase). In fact, police here exercised more “control” over the buys than in

Smith by equipping the informant with an audio transmitter. See id. Fountain therefore fails to

show that Ruffin knowingly or recklessly mischaracterized these operations as controlled buys.

       Fountain also points out that the description of “the premises” in the affidavit’s preamble

includes his apartment’s street address, whereas the street address is missing from the sworn

facts section’s description of “the premises.” He argues that this variation blurs the point as to

whether Detective Ruffin could actually see the informant buy drugs from Apartment 2.

Because we read both descriptions as fairly referring to Apartment 2, we cannot say the variance

in descriptions in any way misleads. See United States v. Ventresca, 380 U.S. 102, 108 (1965)


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Case No. 15-3042
United States v. Fountain

(holding that affidavits for search warrants must be interpreted in a “commonsense and realistic

fashion” because they “are normally drafted by nonlawyers in the midst and haste of a criminal

investigation”).

                                   2. Omission of Material Fact

       Fountain’s claim that the affidavit omitted a material fact also fails. He maintains that

Ruffin knowingly or recklessly failed to disclose his inability to observe the informant enter

Apartment 2. “This court has repeatedly held that there is a higher bar for obtaining a Franks

hearing on the basis of an allegedly material omission as opposed to an allegedly false

affirmative statement.” United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008) (citing

United States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001); United States v. Sawyers, 127 F.

App’x 174, 183 (6th Cir. 2005)). Courts deny a hearing “except in the very rare case where the

defendant makes a strong preliminary showing that the affiant with an intention to mislead

excluded critical information from the affidavit.” Mays v. City of Dayton, 134 F.3d 809, 816

(6th Cir. 1998). After reading the affidavit in a commonsense fashion, we discern no intention to

mislead.

       In any event, an alleged omission must be crucial to the probable-cause finding. See id.

That is, in order to show that the district court erred in denying a Franks hearing, Fountain must

demonstrate that the information about Ruffin’s inability to observe the actual interchange

occurring in the apartment was crucial enough to the decision to issue the warrant that, without

it, no probable cause existed. See Fowler, 535 F.3d at 415–16.

       Here, contrary to Fountain’s contention, visual observation of the controlled buys from

Apartment 2 was unnecessary to establish probable cause to search the apartment. See, e.g.,

United States v. Francis, 367 F.3d 805, 827 (8th Cir. 2004) (“Although Catalano misstated that


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United States v. Fountain

officers saw Harris enter and exit Apartment E, when in fact, he only saw Harris enter the

building located at 7228 Burrwood Court, we find that the other evidence in the search warrant

affidavit sufficiently linked Davis to Apartment E . . . .”), vacated on other grounds, 543 U.S.

1098 (2005), reinstated in relevant part, 141 F. App’x 501 (8th Cir. 2005); United States v.

Khounsavanh, 113 F.3d 279, 286 (1st Cir. 1997) (finding probable cause even when the

controlled buy “was less than ideal: the detective was able to watch the informant enter and leave

the building through its front door, but did not follow the informant into the building and thus

was unable to verify with certainty which apartment was the source of the drugs”); United States

v. Richardson, 861 F.2d 291, 294 (D.C. Cir. 1988) (per curiam) (“It is not necessarily crucial to a

finding of probable cause that a police officer observe an informant enter the specific apartment

where a controlled buy is being conducted.”).

       Indeed, additional averments in the affidavit linked Apartment 2 to drug activity. The

informant told officers that—during the two controlled buys—he bought crack cocaine inside the

apartment from a male he later identified by photograph as Fountain. See United States v. May,

399 F.3d 817, 824 (6th Cir. 2005) (“The additional evidence substantiating an informant’s

reliability need not be obtained from a source unrelated to the confidential informant . . . .”

(citation omitted)). The affidavit also stated that Fountain resides at the apartment and that

Ruffin saw Fountain leaving the residence several times in a car registered to his name.

Moreover, officers employed measures adding to the controlled buys’ reliability, namely,

searching the informant before the purchase, equipping him with an audio transmitter, and

meeting him immediately after the purchase to collect the contraband. In the end, even if the

affidavit had included the fact that Ruffin was unable to observe the informant enter Apartment 2

to buy drugs, the strength of the probable-cause foundation would be undiminished.


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Case No. 15-3042
United States v. Fountain

       Accordingly, the district court committed no error—plain or otherwise—by denying a

Franks hearing and refusing to suppress the evidence discovered at Fountain’s apartment.

   B. Application of the Armed Career Criminal Act

       Fountain also challenges his sentence as an armed career criminal, arguing that his Ohio

aggravated-burglary conviction does not qualify as an ACCA predicate.

       The ACCA enhances the sentence of a defendant convicted under 18 U.S.C. § 922(g)

whose criminal record includes three prior violent-felony convictions. 18 U.S.C. § 924(e)(1). At

the time of Fountain’s sentencing, “violent felony” meant a crime that: (1) “has as an element the

use, attempted use, or threatened use of physical force against the person of another” (the use-of-

force clause); (2) “is burglary, arson, or extortion [or] involves use of explosives” (the

enumerated-offense clause); or (3) “otherwise involves conduct that presents a serious potential

risk of physical injury to another” (the residual clause). 18 U.S.C. § 924(e)(2)(B).

       The district court first determined whether the aggravated-burglary conviction qualified

as an enumerated offense using a “categorical approach” by comparing “the elements of the

statute forming the basis of [Fountain’s] conviction with the elements of the ‘generic’ crime.”

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). In doing so, the court correctly

labeled Ohio’s aggravated-burglary statute non-generic, i.e., broader than generic burglary.1

Because Ohio’s statute is “divisible”—in that it sets out one or more elements in the


       1
         Ohio’s aggravated-burglary statute is broader than generic burglary in that it punishes
unlawful entry into watercrafts, aircrafts, railroad cars, trucks, and other vehicles—not just
buildings or other structures. Ohio. Rev. Code Ann. § 2911.11(A) (Anderson 1974); Ohio. Rev.
Code Ann. § 2909.01 (Anderson 1974); United States v. Coleman, 655 F.3d 480, 482 (6th Cir.
2011) (citing United States v. Holycross, 333 F. App’x 81, 85 (6th Cir. 2009); United States v.
Lane, 909 F.2d 895, 902 (6th Cir. 1990)); see also Taylor v. United States, 495 U.S. 575, 599
(1990) (“A few States’ burglary statutes, however, . . . define burglary more broadly [than
generic burglary], e.g., . . . by including places, such as automobiles and vending machines, other
than buildings.”).
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Case No. 15-3042
United States v. Fountain

alternative—the court could have then employed a “modified categorical approach” by

examining a limited class of court documents (known as Shepard documents) to determine

which alternative necessarily formed the basis of Fountain’s prior conviction. Id. Instead, the

court classified Fountain’s aggravated burglary as a violent felony under the residual clause.

Since then, however, the Supreme Court invalidated that clause as unconstitutionally vague. See

Johnson v. United States, 135 S. Ct. 2551, 2557 (2015).

       Because both parties reasonably assumed the residual clause’s continued validity, their

presentation to the district court bypassed submitting relevant Shepard documents supporting the

modified categorical approach. Thus, given the intervening change in the law, we remand for

resentencing in light of Johnson to allow inquiry into whether Fountain’s previous aggravated-

burglary conviction qualifies as an enumerated offense. See United States v. France, 394 F.

App’x 246, 251–52 (6th Cir. 2010) (remanding for the district court to reach the Shepard inquiry

where it had no occasion to address the issue).

                                                  III.

       Accordingly, we AFFIRM Fountain’s conviction, VACATE his sentence, and REMAND

for resentencing consistent with this opinion.




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