                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-3282
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                  JAMES BLAKNEY,
                                              Appellant
                                    _____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Crim. No. 2-11-cr-00562-001)
                     District Judge: Honorable Timothy J. Savage
                                     ___________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 6, 2013

        Before: GREENAWAY, JR., VANASKIE, and ROTH, Circuit Judges.

                                 (Filed: March 11, 2014)
                                      ___________

                                       OPINION
                                      ___________

VANASKIE, Circuit Judge.

      James Blakney appeals from a judgment entered by the District Court convicting

him of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1),

and sentencing him to a 180-month term of incarceration. Blakney contends the District

Court erred in denying his motion to suppress the firearms evidence, and in determining
that he should be sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e).1

Finding no error, we will affirm.

                                               I.

       Blakney was arrested on June 4, 2011 after the police recovered two firearms

hidden behind a toilet in Blakney’s home. The police found the firearms while executing

a search warrant. A grand jury later charged Blakney, who had previously been

convicted of a felony, with possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1).

       Blakney moved to suppress the firearms evidence, arguing that the search warrant

was issued on the basis of false material statements contained in the affidavit of probable

cause. The District Court held a hearing on Blakney’s motion.

       At the hearing, Terence Sweeney, a detective with the Philadelphia Police

Department, testified that he sought the search warrant after interviewing seventeen-year-

old M.P., Jr. (“M.P.”) on June 2, 2011. According to Detective Sweeney, M.P. reported

that he had been the victim of an assault by two men on May 31, 2011. M.P. stated that,

during the assault, he was struck several times on the head with a nickel-plated handgun

by a man he had known for several years by the name, “Bruce.” As a result of the


       1
           In pertinent part, 18 U.S.C. § 924(e) provides:
                In the case of a person who violates section 922(g) of this title
                and has three previous convictions by any court referred to in
                section 922(g)(1) of this title for a violent felony or a serious
                drug offense, or both, committed on occasions different from
                one another, such person shall be . . . imprisoned not less than
                fifteen years. . . .

                                               2
assault, M.P. was admitted to a hospital intensive care unit. Detective Sweeney

corroborated the fact that M.P. had been admitted to the hospital with severe head

injuries.

       Detective Sweeney also testified that he checked the police radio database and

found that the police had received a phone call reporting a disturbance at the time and

location that M.P. claimed he had been assaulted. The report was ultimately listed as

“unfounded,” which Detective Sweeney interpreted as meaning that “when the officers

responded no one came forth and offered the officers information for the alleged call.”

(Appendix (“A.”) 24.)

       Additionally, Detective Sweeney testified that M.P. provided “Bruce’s” address to

him, and that voter registration records listed Blakney as a resident of that address. After

running Blakney’s name through police records, Detective Sweeney learned that Blakney

had a prior conviction that prevented him from legally possessing a firearm. Sweeney

then presented M.P. with a photograph of Blakney, and M.P. identified the photograph as

the man he knew as “Bruce.” (A. 14-15.) M.P. then signed the photograph and wrote at

the bottom, “[t]his is Bruce that [sic] hit me a number of times with a nickel-plated gun.”

(Id. 15.)

       Based upon the evidence presented at the hearing, the District Court found that the

search warrant was supported by probable cause; that the affidavit of probable cause was

free of any false statements or omissions material to the finding of probable cause; and

that the affidavit of probable cause was free of any material false statements made



                                             3
knowingly, intentionally, or recklessly. Accordingly, the District Court denied the

suppression motion.

       Blakney subsequently pleaded guilty pursuant to a Rule 11(c)(1)(C) plea

agreement that called for a prison term of 180 months. The plea agreement, although

containing an appellate waiver, preserved Blakney’s right to challenge the denial of his

suppression motion and his qualification for sentencing as an armed career criminal under

18 U.S.C. § 924(e). At sentencing, Blakney challenged the government’s contention that

he qualified as an armed career criminal subject to the mandatory minimum prison term

of 15 years called for by 18 U.S.C. § 924(e). Specifically, Blakney argued that the

original certified copy of his 1995 robbery conviction, which the government produced at

sentencing as evidence of a third qualifying felony conviction, was insufficient proof of

that conviction. The District Court disagreed, finding that the certified copy established

that Blakney was convicted of the qualifying offense. The District Court accepted the

binding plea agreement and sentenced Blakney to 180 months’ incarceration in

accordance with that agreement.2

                                            II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Blakney first contends that the District Court erred in denying his motion to

suppress the firearms because the affidavit of probable cause was inadequate. He relies

       2
       Blakney’s advisory imprisonment guidelines range was calculated to be 210 to
262 months.

                                             4
on Franks v. Delaware, 438 U.S. 154 (1978), which “requires suppression of evidence

obtained pursuant to a warrant issued on the basis of a false statement that was both

material to the finding of probable cause and made either knowingly and intentionally or

with reckless disregard for the truth.” United States v. Brown, 631 F.3d 638, 641-42 (3d

Cir. 2011) (citing Franks, 438 U.S. at 155-56). Blakney concedes that Detective

Sweeney did not knowingly or intentionally include a false statement in the affidavit.

Thus, his argument succeeds only if he demonstrates that the affidavit included a false

statement made “with reckless disregard for the truth,” and that the false statement was

“necessary to the finding of probable cause.” See Franks, 438 U.S. at 155-56.

       When considering a district court’s denial of a motion to suppress, we review the

district court’s factual findings for clear error, and we exercise plenary review over the

court’s application of the law to the facts. United States v. Perez, 280 F.3d 318, 336 (3d

Cir. 2002). The District Court’s determination that Detective Sweeney did not act with

reckless disregard for the truth is a mixed question of law and fact, which we review for

clear error. See Brown, 631 F.3d at 642 (“[A] district court’s resolution of the question

whether a particular false statement in a warrant affidavit was made with reckless

disregard for the truth is subject to reversal only upon a finding of clear error.”).

       Blakney contends that the affidavit of probable cause was problematic for two

reasons. First, Blakney asserts that M.P.’s allegations – which formed the basis of the

affidavit – were unreliable because M.P. was only seventeen years old at the time, and he

“appeared nervous and apprehensive.” (Appellant’s Br. 9.) Second, Blakney asserts that

the affidavit failed to disclose that the officers who responded to an initial radio call

                                               5
about the incident marked the call “unfounded,” and that this omission was material. (A.

24.)

       Blakney’s arguments fail for several reasons. His assertion that Detective

Sweeney acted with reckless disregard for the truth in failing to conduct further

investigation into M.P.’s allegations is belied by the record. Detective Sweeney testified

before the District Court that he verified M.P.’s statements by reviewing M.P.’s hospital

discharge papers and calling the hospital to confirm that M.P. had been admitted to the

intensive care unit with severe head injuries. He likewise confirmed that Blakney was

known to M.P. as “Bruce” and that Blakney lived at the address provided by M.P. as

“Bruce’s” residence.

       Blakney’s claim that the warrant would not have been issued if it had indicated

that the police radio call was categorized as “unfounded” is unpersuasive. Detective

Sweeney testified before the District Court that the police report was designated

unfounded because, “when the officers responded[,] no one came forth and offered the

officers information for the alleged call.” (A. 24.) Based on this testimony, the District

Court did not clearly err in concluding that the omission of this information was

immaterial.

       Finally, Blakney’s brief fails to address the second prong of the Franks analysis;

i.e., whether the allegedly false information was necessary to a finding of probable cause.

Blakney’s brief does not identify a specific statement that is allegedly false, and the

omission of the report being “unfounded” is immaterial to a finding of probable cause.

We will therefore uphold the District Court’s denial of Blakney’s motion to suppress.

                                              6
       Blakney also contends that the District Court erred in sentencing Blakney as an

armed career criminal pursuant to 18 U.S.C. § 924(e) because the government failed to

move the certified copy of Blakney’s 1995 robbery conviction into the record. We need

not address this issue at length. Blakney does not deny that the certified copy of this

conviction was accurate, nor does he argue that this prior robbery conviction fails to

qualify for § 924(e)’s sentencing enhancement. Furthermore, Blakney does not cite to

any authority for the proposition that the District Court may only consider documents

entered into evidence at sentencing. Thus, we reject his argument that the District Court

erred in relying on the certified copy of Blakney’s 1995 robbery conviction because the

government failed to move the document into evidence.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                             7
