                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4103


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEVON LAMAR MARION,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:11-cr-00338-D-1)


Submitted:   August 2, 2013              Decided:   December 4, 2013


Before GREGORY and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Terry F. Rose, Smithfield, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      On November 1, 2011, a federal grand jury sitting in the

Eastern District of North Carolina charged Devon Lamar Marion

(Marion) with: (1) possession with intent to distribute more

than twenty-eight grams of cocaine base (crack), a quantity of

cocaine, and a quantity of marijuana, 21 U.S.C. § 841(a)(1); (2)

possession of a firearm in furtherance of a drug trafficking

crime, 18 U.S.C. § 924(c)(1)(A); and (3) possession of a firearm

by a convicted felon, id. § 922(g)(1).               Marion pleaded guilty to

these   offenses,     and    the   district         court    sentenced    him   to

concurrent 108 month terms of imprisonment for the § 841(a)(1)

and § 922(g)(1) offenses, and a consecutive sixty month term of

imprisonment for the § 924(c)(1)(A) offense.                  On appeal, Marion

challenges: (1) the district court’s denial of his motion to

suppress evidence recovered pursuant to a search warrant; (2)

the   district   court’s     denial    of     his    request    for   a   hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978); and (3) the

sentence imposed by the district court.              We affirm.



                                        I

      Legal   determinations        underlying         a     district     court’s

suppression rulings, including the denial of a Franks hearing,

are   reviewed   by   this    court    de     novo,    and     factual    findings



                                      - 2 -
relating to such rulings are reviewed for clear error.                               United

States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011).

      In     June    2011,     a    confidential         informant          (CI)   provided

information to law enforcement authorities in Cumberland County,

North Carolina concerning a drug dealer known as “Fat Rat.”                              The

information provided by the CI included, among other things, the

following     about     “Fat       Rat”:    (1)     he   used    rental       vehicles   to

distribute drugs in Fayetteville, North Carolina; (2) he had a

blue car with blue wheels; and (3) he had a house in Hope Mills,

North Carolina.

      A search of a police database revealed that Marion was also

known as “Fat Rat.”            When presented with a photograph of Marion

by law enforcement authorities, the CI confirmed that “Fat Rat”

and Marion were the same person.

      “Using        investigative          techniques,”       the      law     enforcement

authorities discovered a rental agreement in which Marion was

listed as the renter of a 2011 Dodge Ram truck (the Dodge Ram).

On the rental agreement, Marion listed his contact phone number

as   (910)    354-9476.         A    “reverse       check”      on    the    phone   number

revealed that the phone number (910) 354-9476 was a land line to

a residence located at 612 Connors Cove (the Residence) in Hope

Mills.

      While     under     the       surveillance         of     the    law     enforcement

authorities, Marion, using the Dodge Ram, made several short

                                            - 3 -
trips from the Residence in Hope Mills to known drug areas in

Fayetteville.          Each time Marion arrived at a known drug area, he

stayed      there      only    a    short      time    before        returning      to     the

Residence.

       On two separate occasions, the law enforcement authorities

examined      the      trash   at     the    Residence.         Each      time,     the    law

enforcement         authorities       found    multiple       plastic        baggies      with

ripped      off      corners.          According       to     the      law       enforcement

authorities, this evidence was consistent with the packaging and

repackaging of controlled substances.

       On   July       6,   2011,      Detective       Joseph    Herring          (Detective

Herring) of the Fayetteville Police Department observed the name

“Fat   Rat”    stitched        onto    the    head    rests     of    a   blue     Chevrolet

Caprice with blue rims parked in the driveway of the Residence.

A DMV search revealed that the car was registered to Marion.

       Based      on    this    information,          and   information          concerning

Marion’s       previous         conviction       involving           drugs,       the      law

enforcement       authorities         prepared   an     affidavit         (the   Affidavit)

and applied for a search warrant for the Residence, and the

warrant was granted by a Cumberland County Magistrate (Issuing

Magistrate) on July 17, 2011.                  The search warrant was executed

the following day.             During the search of the Residence, the law

enforcement       authorities         recovered,      among     other      things,       110.3



                                             - 4 -
grams of crack; .9 grams of cocaine; 2.5 grams of marijuana; a

Ruger .357 handgun; and $8,526 in United States currency.

     Following       his    indictment,           Marion    moved   to     suppress     the

evidence recovered at the Residence on the basis that the search

was not supported by probable cause.                     In the alternative, Marion

sought     a    hearing    pursuant         to     Franks,      contending     that     the

Affidavit included false and misleading statements and that the

affiants       purposefully      omitted      certain      information.         A   United

States   Magistrate        Judge      recommended        that    both    the   motion    to

suppress and the request for a Franks hearing be denied.                                The

district court adopted the magistrate judge’s recommendation.

                                              A

     Marion contends that the search of the Residence was not

supported by probable cause.                  In particular, he contends that

the information contained in the Affidavit did not provide the

Issuing Magistrate with a proper basis to conclude that evidence

of a crime would be found at the Residence.

     Subject to certain exceptions that are not applicable in

this case, police officers must obtain a warrant to conduct a

search or seizure at a residence.                   U.S. Const. amend IV; United

States   v.      Kelly,    592       F.3d   586,    589     (4th    Cir.    2010).       An

affidavit       supporting       a   warrant      that     authorizes      a   search    or

seizure “must provide the magistrate with a substantial basis

for determining the existence of probable cause” in light of the

                                            - 5 -
totality of the circumstances.                   Illinois v. Gates, 462 U.S. 213,

239 (1983).       “[T]o establish probable cause, the facts presented

to   the    magistrate            need    only   ‘warrant         a    man       of   reasonable

caution’ to believe that evidence of a crime will be found.”

United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992)

(per curiam)          (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)

(plurality opinion)).               On appeal, we give “[g]reat deference . .

. [to] a magistrate’s assessment of the facts when making a

determination of probable cause.”                     Williams, 974 F.2d at 481.

       The Affidavit presented to the Issuing Magistrate supported

the finding of probable cause.                    The law enforcement authorities

sought     to   search        the        Residence     for   evidence            of   controlled

substances      and        drug    trafficking         activity.            In     support,    the

Affidavit       described          a     previous      conviction           involving        drugs.

Moreover,       the    CI     provided         information         concerning          the     drug

trafficking activities of “Fat Rat,” and he identified Marion as

“Fat    Rat”    in     a    photograph         provided      by       the    law      enforcement

authorities.          The CI’s information was corroborated by, among

other things, Marion’s pattern of traveling from the Residence

in a rented vehicle to known drug areas, staying for a short

period     of   time       before        returning     to    the       Residence,        and   the

stitching of “Fat Rat” on the head rests of the Caprice Classic.

Under    the    circumstances             of   this    case,      it     is      reasonable     to

suspect that a drug dealer would store drugs and items used in

                                               - 6 -
the sale of drugs at a residence: (1) where he stays; (2) where

he appears to maintain two automobiles, including one that is

rented; (3) where law enforcement authorities recovered evidence

of drug trafficking activity in the trash; and (4) where law

enforcement authorities saw him on several occasions traveling

from such residence to known drug areas, and then returning to

such    residence       after     a    brief       stay.       Cf.     United         States    v.

Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (agreeing with other

circuits “that the nexus between the place to be searched and

the items to be seized may be established by the nature of the

item and the normal inferences of where one would likely keep

such     evidence”).         In       short,       the     district        court      correctly

determined       that      there      was      probable        cause       to     search       the

Residence.

                                               B

        Alternatively, Marion contends that the Affidavit could not

establish probable cause because: (1) the Affidavit was based on

false     and     misleading          information;          and      (2)        the    affiants

purposefully omitted certain information.                         According to Marion,

the     Affidavit    recklessly          and       materially        misrepresented            his

criminal        history,     the       phone       number      associated             with     the

Residence, and the timing of the DMV search on the Chevrolet

Caprice.        Marion     also    posits      that      the   Affidavit         omitted       the

location of the trash or the manner in which it was collected by

                                            - 7 -
the law enforcement authorities, and that the Issuing Magistrate

likely was misled by a statement in the Affidavit regarding the

procedure      followed       in       searching     the      trash.        Taken    together,

Marion argues these misstatements and omissions violate Franks

and require invalidation of the search warrant and suppression

of   all     evidence       seized      during     the       search    of    the    Residence.

Marion also argues that he was, at a minimum, entitled to a

Franks hearing.

       In Franks, the Supreme Court held that a “search warrant

must be voided and the fruits of the search excluded” if a

defendant establishes, by a preponderance of the evidence, that

the affidavit supporting that warrant included false statements

made “knowingly and intentionally, or with reckless disregard

for the truth” and that those false statements were “necessary

to     the    finding       of     probable        cause”      such     that,       “with     the

affidavit’s         false    material        set   to    one    side,       the    affidavit’s

remaining content is insufficient to establish probable cause.”

438 U.S. at 155-56.                A defendant is entitled to a hearing to

pursue       this    relief       if    he   makes       a    “substantial         preliminary

showing”       that     the        affiant         intentionally            included        false

statements necessary to the finding of probable cause.                                 Id. at

155.

       A defendant bears a heavy burden to establish the need for

a Franks hearing.                United States v. Jeffus, 22 F.3d 554, 558

                                             - 8 -
(4th   Cir.   1994).         With    a   claim      that      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

facts were omitted ‘with the intent to make, or in reckless

disregard     of      whether       they     thereby          made,        the     affidavit

misleading.’”        Id. at 455 (quoting United States v. Colkley, 899

F.2d 297, 300 (4th Cir. 1990)).                    A claim that the affiant was

negligent or made an innocent mistake is inadequate to obtain a

Franks hearing.        United States v. McKenzie-Gude, 671 F.3d 452,

462 (4th Cir. 2011).          The preliminary showing “must be more than

conclusory     and    must    be    accompanied          by    a    detailed       offer    of

proof.”       Colkley,       899    F.2d    at     300     (citation        and    internal

quotation     marks     omitted).            Consideration            of     the     omitted

information must “be such that its inclusion in the affidavit

would defeat probable cause.”               Id. at 301.            Thus, a defendant is

not entitled to a Franks hearing if, once the false statements

are excised and the omitted information is inserted, probable

cause still exists.          Franks, 438 U.S. at 171-72.

       In this case, even excluding all controverted statements

from   the    Affidavit      and    including       the       omissions      that    Marion

alleges, the Affidavit would support the Issuing Magistrate’s

finding of probable cause.                 Accepting Marion’s arguments, the

Affidavit would still have included the following: (1) Marion

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had    a    previous        conviction        (albeit      not    a     felony      conviction)

involving       drugs;       (2)       the    CI    provided       the      law     enforcement

authorities with information regarding an alleged drug dealer

known as “Fat Rat”; (3) the CI said that “Fat Rat” usually

rented vehicles in which to deliver drugs in the Fayetteville

area; (4) the CI indicated that “Fat Rat” has a home in Hope

Mills; (5) the CI said that “Fat Rat” had a blue car with blue

wheels; (6) a search of a police database revealed that Marion

was known as “Fat Rat”; (7) the CI identified Marion as “Fat

Rat”       in   a     photograph             provided      by     the       law     enforcement

authorities;          (8)    Marion      rented      the    Dodge       Ram;      (9)     the    law

enforcement         authorities          saw       the    Dodge       Ram    parked       at     the

Residence;       (10)       the    law       enforcement        authorities         saw    a    blue

Chevrolet       Caprice       with       blue      rims    and    the       words    “Fat       Rat”

stitched in the head rests at the Residence; (11) on several

occasions, Marion exited the Residence, got into the Dodge Ram,

and    drove     to    parts       of    Fayetteville           known    for      illegal       drug

activity;       and    (12)       on    these   occasions,        Marion       stopped         for   a

short period of time in the known drug areas before returning to

the Residence.              Unquestionably, even including the additional

information Marion claims was omitted, the Issuing Magistrate

still would have had a substantial basis for finding probable

cause that Marion was using the Residence as a drug storehouse.

Thus, Franks does not require invalidation of the search warrant

                                               - 10 -
or suppression of the fruits of the search of the Residence.

Nor is Marion entitled to a Franks hearing.



                                             II

     We     review     sentences         for       procedural      and     substantive

reasonableness under an abuse of discretion standard.                         Gall v.

United States, 552 U.S. 38, 51 (2007).                      Miscalculation of the

Guidelines range is a significant procedural error.                           Id.     In

assessing whether the district court has properly applied the

Guidelines, we review factual findings for clear error and legal

conclusions de novo.            United States v. Osborne, 514 F.3d 377,

387 (4th Cir. 2008).           We will “find clear error only if, on the

entire     evidence,     we     are     left      with   the    definite     and    firm

conviction that a mistake has been committed.”                        United States v.

Manigan,     592     F.3d      621,     631       (4th   Cir.     2010)     (citation,

alteration, and internal quotation marks omitted).

     In preparation for sentencing, a United States Probation

Officer (the Probation Officer) prepared a presentence report.

Using a Cumberland County street price of crack of $1,200 per

ounce, the Probation Officer converted the $8,526 recovered at

the Residence into 201.43 grams of crack.                       In arriving at this

figure, the Probation Officer divided 8,526 (the amount of cash

seized) by 1,200 (the street price of an ounce of crack in

Cumberland     County)        and     then     multiplied      that     amount,     7.105

                                         - 11 -
(ounces), by 28.35 (the number of grams in an ounce).                        When this

201.43 grams was added to the other drugs recovered from the

Residence, the resulting drug quantity placed Marion in a Base

Offense     Level    of   32.        With    a    three-level         reduction       for

acceptance of responsibility, Marion’s Total Offense Level was

29, which, when coupled with a Criminal History Category of III,

produced    an    advisory    sentencing     range      of    108    to   135   months’

imprisonment for the § 841(a)(1) offense.

      Marion argues that the district court erred in calculating

the advisory sentencing range for his § 841(a)(1) offense by

incorrectly calculating the amount of drugs attributable to him.

In particular, he challenges the manner in which the district

court converted the $8,526 in United States currency recovered

at the Residence into a crack equivalent.                    The gist of Marion’s

argument is that the conversion of the $8,526 should have been

to grams, not ounces, at a rate of $100 per gram, because there

was   no    evidence      presented     at       sentencing         indicating       what

quantities and at what prices Marion sold crack.                          According to

Marion, using 85.26 grams instead of 7.105 ounces would have

reduced his base offense level by four levels.

      At   sentencing,       the   government         need    only    establish       the

amount of drugs involved in an offense by a preponderance of the

evidence.        United States v. Cook, 76 F.3d 596, 604 (4th Cir.

1996).      Moreover,     “[w]here    there      is    no    drug    seizure    or    the

                                      - 12 -
amount seized does not reflect the scale of the offense, the

court     shall        approximate         the    quantity     of     the       controlled

substance”;          “[i]n   making       this    determination,       the      court      may

consider,    for       example,     the     price    generally      obtained         for   the

controlled      substance.”              United   States     Sentencing       Commission,

Guidelines Manual, § 2D1.1, cmt. (n.12) (2011).

     Cash is properly converted to drug equivalents when it is

part of the same course of conduct, either because it is the

proceeds of drug sales or would be used to purchase more drugs

in the future.           United States v. Hicks, 948 F.2d 877, 882-83

(4th Cir. 1991).             “A district court may properly convert cash

amounts linked credibly to the defendant’s purchase or sale of

narcotics       so    long    as    the     court    does    not    engage      in    double

counting of both the proceeds and the narcotics themselves.”

United States v. Sampson, 140 F.3d 585, 592 (4th Cir. 1998).

     In     this        case,      the     government       presented       evidence        at

sentencing suggesting that Marion sold crack in large quantities

instead    of     the    small     quantities        typically      sold   by    a    street

dealer.      The       packaging      and    other    evidence      recovered        at    the

Residence       also     suggested        that    Marion     sold     crack     in     large

quantities instead of small quantities.                     Based on this evidence,

the district court did not clearly err when it converted the

$8,526 to ounces of crack instead of grams.                         See United States

v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (“Thus, we hold

                                            - 13 -
that a district court need not ‘err,’ on the side of caution or

otherwise; it must only determine that it was more likely than

not that the defendant was responsible for at least the drug

quantity attributed to him.”); United States v. Uwaeme, 975 F.2d

1016,   1019    (4th    Cir.   1992)   (“Neither     the   Guidelines    nor   the

courts have required precise calculations of drug quantity.”).



                                        III

     For the reasons stated herein, the judgment of the district

court is affirmed.         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




                                       - 14 -
