                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2229
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Gregory M. Shockley

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 19, 2015
                             Filed: March 23, 2016
                                 ____________

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
                        ____________

GRUENDER, Circuit Judge.

       Gregory M. Shockley was charged with being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). After the district court denied his
motion to suppress, Shockley conditionally pleaded guilty, reserving his right to
appeal the suppression issue. The district court sentenced him to 180 months’
imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1). Shockley appeals both the denial of his motion to suppress and his
sentence. We affirm the denial of Shockley’s motion to suppress. We vacate his
sentence and remand for resentencing in light of Johnson v. United States, 576 U.S.
---, 135 S. Ct. 2551 (2015).

                                          I.

       In February 2012, Kansas City Police began investigating Shockley for drug
trafficking. Several months later, police suspected that Shockley was involved in a
homicide after learning that he was the homicide victim’s pimp and drug dealer and
that he had fought with the victim hours before her death. Investigating officers went
to Shockley’s residence to search his trash in connection with the drug-trafficking and
murder investigations. Officers retrieved and examined a single bag of trash, which
contained eight small, clear plastic sandwich bags with stretched and torn corners; a
small amount of a green leafy substance that tested positive for tetrahydrocannabinol
(“THC”), the main active ingredient in marijuana; eleven plastic gloves; and two
pieces of mail belonging to Shockley and mailed to Shockley’s address. The trash
also contained a torn, red-stained piece of cloth that investigators believed had come
from a tank top that the homicide victim was wearing several hours before her death.

      As a result of these findings, police obtained a search warrant for Shockley’s
residence. The magistrate judge issued the warrant based on an affidavit from
Detective Leland Blank, which summarized the drug and homicide investigations of
Shockley and described the items police found in his trash. During the search, police
found firearms, ammunition, two digital scales, a small quantity of marijuana, and
bags that contained methamphetamine and cocaine residue.

       A grand jury indicted Shockley for being a felon in possession of a firearm. He
filed a motion to hold a Franks hearing and to suppress evidence seized during the
search of his home. See Franks v. Delaware, 438 U.S. 154 (1978). Shockley argued
that the search-warrant affidavit contained omissions and false and misleading

                                         -2-
statements regarding the homicide investigation. He claimed that the affidavit would
not support finding probable cause absent Detective Blank’s false statements. The
magistrate judge issued a report and recommendation denying Shockley’s motion,
finding that Detective Blank provided sufficient facts to support probable cause based
on Shockley’s drug-trafficking activity. Because Shockley did not challenge any
statements relating to the drug investigation, the allegedly false statements about the
homicide investigation were not necessary to find probable cause to support issuing
a search warrant. The district court adopted the report and recommendation over
Shockley’s objection.

       After the denial of his suppression motion, Shockley conditionally pleaded
guilty to being a felon in possession of a firearm, reserving his right to appeal the
suppression issue. Shockley’s presentence investigation report (“PSR”) listed three
prior felony convictions for resisting arrest. Because these offenses qualified as
violent felonies under the residual clause of the ACCA, Shockley was subject to a
fifteen-year minimum sentence as an armed career criminal. The district court
sentenced him to the mandatory minimum of 180 months’ imprisonment.

                                          II.

       Shockley presents two challenges on appeal. First, he argues that the district
court erred by denying his motion to suppress and to hold a Franks hearing because
the search-warrant affidavit contained false statements, and in the absence of those
statements, the affidavit would not have supported probable cause to search his home.
Second, he argues that the district court erred by applying the ACCA’s residual clause
to find that his three prior felonies were predicate offenses under that statute.




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                                           A.

       We review the denial of a Franks hearing for abuse of discretion. United States
v. Gonzalez, 781 F.3d 422, 430 (8th Cir.), cert. denied, 577 U.S. ---, 136 S. Ct. 139
(2015). A defendant may obtain a Franks hearing if (1) he makes a “substantial
preliminary showing” that the affiant intentionally or recklessly included a false
statement in the warrant affidavit, and (2) the false statement was “necessary to the
finding of probable cause.” United States v. Jacobs, 986 F.2d 1231, 1233-34 (8th Cir.
1993) (quoting Franks, 438 U.S. at 155-56). The district court denied Shockley’s
request for a Franks hearing after finding that the affidavit provided probable cause
to issue the search warrant based on Shockley’s drug-related activity. Because
Shockley did not challenge any statements relating to the drug investigation, the
allegedly false statements about the homicide investigation were not necessary to find
probable cause to support issuing a search warrant.

       We agree with the district court that the unchallenged statements in the affidavit
provided sufficient facts to support a warrant to search Shockley’s home. Probable
cause to issue a search warrant exists if, in light of the totality of the circumstances,
there is “a fair probability that contraband or evidence of a crime will be found in a
particular place.” United States v. Donnell, 726 F.3d 1054, 1056 (8th Cir. 2013)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). “Many of our cases recognize
that the recovery of drugs or drug paraphernalia from the garbage contributes
significantly to establishing probable cause.”1 United States v. Briscoe, 317 F.3d 906,
908 (8th Cir. 2003); see also United States v. Seidel, 677 F.3d 334, 338 (8th Cir. 2012)
(collecting cases). In fact, we have found probable cause based solely on evidence
found in trash pulled from outside a suspect’s home. See, e.g., Briscoe, 317 F.3d at

      1
       Shockley does not challenge the police search of his trash. See United States
v. Comeaux, 955 F.2d 586, 589 (8th Cir. 1992) (holding that warrantless search of
defendant’s trash was not unlawful because defendant had no expectation of privacy
where trash was readily accessible to the public).

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908 (holding that forty marijuana seeds and twenty-five stems found in the garbage
outside defendant’s home were “sufficient stand-alone evidence to establish probable
cause”) (emphasis in original).

       In this case, the affidavit provided probable cause to search Shockley’s home
for evidence of drug trafficking. The affidavit stated that police found Shockley in
possession of marijuana and cocaine during several encounters in 2012. The affidavit
also stated that officers searching Shockley’s trash in May 2012 found evidence
connecting Shockley to drug-trafficking activity, including eight small, clear plastic
sandwich bags with stretched and torn corners; a small amount of a green leafy
substance that tested positive for THC; and eleven plastic gloves. This evidence was
sufficient to support probable cause to search Shockley’s residence for controlled
substances. See, e.g., United States v. Allebach, 526 F.3d 385, 387 (8th Cir. 2008)
(holding that “two plastic bags with cocaine residue, two corners torn from plastic
bags, Brillo pads, [and] a film canister with white residue . . . were sufficient to
establish probable cause that cocaine was being possessed and consumed in [the
defendant’s] residence”). Because the unchallenged statements in the affidavit
provided probable cause to search Shockley’s home for evidence of drug trafficking,
the district court did not err by denying Shockley’s motion to hold a Franks hearing
and to suppress evidence. United States v. Ryan, 293 F.3d 1059, 1061 (8th Cir. 2002)
(holding that defendant is not entitled to Franks hearing unless false statement or
omission is “necessary to a finding of probable cause”).2




      2
        Because the affidavit’s unchallenged statements concerning the drug-
trafficking investigation provided probable cause, we need not address Shockley’s
allegation that the affidavit contained false statements relating to the homicide
investigation.

                                         -5-
                                           B.

       We next turn to Shockley’s argument that the district court erred by sentencing
him as an armed career criminal under 18 U.S.C. § 924(e)(1). “We review de novo
whether a prior conviction is a predicate offense under the ACCA.” United States v.
Humphrey, 759 F.3d 909, 911 (8th Cir. 2014) (quoting United States v. Van, 543 F.3d
963, 966 (8th Cir. 2008)). Shockley’s PSR lists three prior felony convictions for
resisting arrest under a Missouri statute that states, in relevant part:

      1. A person commits the crime of resisting or interfering with arrest,
      detention, or stop if . . . the person:

      (1) Resists the arrest, stop or detention of such person by using or
      threatening the use of violence or physical force or by fleeing from such
      officer; or

      (2) Interferes with the arrest, stop or detention of another person by using
      or threatening the use of violence, physical force or physical
      interference.

Mo. Rev. Stat. § 575.150. Violating the statute constitutes a felony if either (1) the
defendant resisted or interfered with an arrest for a felony offense, or (2) the defendant
resisted arrest “by fleeing in such a manner that the person fleeing creates a substantial
risk of serious physical injury or death to any person.” § 575.150.5.

       Because the district court determined that these prior convictions were violent
felonies under the ACCA’s residual clause, Shockley was subject to a mandatory
minimum sentence of fifteen years’ imprisonment. However, while this appeal was
pending, the Supreme Court held that the residual clause of the ACCA is
unconstitutionally vague. See Johnson, 135 S. Ct. at 2557. Thus, Shockley’s prior
convictions no longer can qualify as predicate offenses under the ACCA’s residual



                                           -6-
clause. The remaining question, then, is whether Shockley’s prior felonies can qualify
as predicate offenses under the ACCA’s force clause.

       The force clause of the ACCA encompasses felony offenses that “ha[ve] as an
element the use, attempted use, or threatened use of physical force against the person
of another.” 18 U.S.C. § 924(e)(2)(B)(i). In determining whether a prior conviction
qualifies as a predicate offense triggering a sentencing enhancement, we apply the
“categorical approach,” under which we “look only to the fact of conviction and the
statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575, 602
(1990). However, “[i]f one alternative in a divisible statute qualifies as a violent
felony, but another does not, we apply the ‘modified categorical approach’ to
determine under which portion of the statute the defendant was convicted.” United
States v. Tucker, 740 F.3d 1177, 1180 (8th Cir. 2014) (en banc); see also Johnson v.
United States, 559 U.S. 133, 144 (2010) (noting that the modified categorical
approach applies to force-clause determinations). “[T]he modified categorical
approach permits sentencing courts to consult a limited class of documents, such as
indictments and jury instructions, to determine which alternative formed the basis of
the defendant’s prior conviction.” Id. (quoting Descamps v. United States, 570 U.S.
---, 133 S. Ct. 2276, 2281 (2013)).

      Here, the Missouri statute includes conduct that falls under the ACCA’s force
clause, such as resisting arrest, stop, or detention “by using or threatening the use of
violence or physical force.” Mo. Rev. Stat. § 575.150.1(1). However, the statute also
defines the offense to include fleeing from an officer. Id. We thus turn to the
modified categorical approach, which permits us to consider a narrow class of
documents to determine the subdivision of the Missouri statute under which Shockley
was convicted. See Shepard v. United States, 544 U.S. 13, 26 (2005).




                                          -7-
       The only evidence in the record establishing Shockley’s three prior convictions
comes from his PSR, to which he did not object. The three relevant entries in the PSR
each state that Shockley was convicted for a felony violation of section 575.150, and
each provides a brief description of the underlying facts, based on “court records.”
Without more information about the source of these offense descriptions, we cannot
rely on the factual assertions in Shockley’s PSR. See United States v. Ossana, 638
F.3d 895, 903 (8th Cir. 2011) (“[I]n applying the modified categorical approach,
sentencing courts may not look to factual assertions within federal presentence
investigation reports—even if the defendant failed to object to the reports—where the
source of the information in the reports might have been from a non-judicial source.”).
 And without evidence establishing which portion of the statute Shockley was
convicted for violating, we cannot conclude that any of his prior convictions were
violent felonies under the force clause.

      Accordingly, we vacate Shockley’s sentence and remand to the district court for
resentencing. At the initial sentencing hearing—which occurred before Johnson—the
Government and the district court relied on the residual clause to determine that
Shockley’s prior offenses were violent felonies. This “may have impeded full
development of the record” because the Government had no reason to submit
documents that could have established that Shockley’s prior convictions fell within
the ACCA’s force clause. See United States v. Williams, 627 F.3d 324, 329 (8th Cir.
2010). “We do not impose any limitations on the evidence that the district court may
consider on remand, so the court ‘can hear any relevant evidence . . . that it could have
heard at the first hearing.’” United States v. King, 598 F.3d 1043, 1050 (8th Cir.
2010) (quoting United States v. Dunlap, 452 F.3d 747, 750 (8th Cir. 2006)).

       Shockley also argues that, in light of Johnson, we should remand with
instructions that the district court not assess a sentencing enhancement under USSG
§ 2K2.1, which incorporates the same predicate offenses as the ACCA. See USSG



                                          -8-
§ 4B1.2(a). Our circuit has not decided whether Johnson’s void-for-vagueness
standard applies to the sentencing guidelines. See United States v. Ellis, No. 15-1261,
2016 WL 859936, at *2 (8th Cir. Mar. 7, 2016). We decline to resolve this issue or
otherwise instruct the district court in calculating Shockley’s advisory sentencing
guidelines range on remand.

                                         III.

      For the foregoing reasons, we affirm Shockley’s conviction, but we vacate his
sentence and remand for resentencing.
                      ______________________________




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