                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                 No. 05-10124                   JANUARY 19, 2006
                             Non-Argument Calendar              THOMAS K. KAHN
                                                                    CLERK
                           ________________________

                        D. C. Docket No. 04-00132-CR-1-1

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                       versus

GODWIN UMOLE,

                                                            Defendant-Appellant.


                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                 (January 19, 2006)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Godwin Umole appeals his conviction and 24-month sentence imposed after

he entered a conditional plea of guilty, pursuant to written agreement, for one
count of credit card fraud in violation of 18 U.S.C. § 1029(a)(2). On appeal, he

argues that the district court erred by (1) denying his motion to suppress evidence

seized pursuant to a search warrant without holding an evidentiary hearing, and

(2) sentencing him in violation of his Sixth Amendment right to a jury under

mandatory sentencing guidelines in light of United States v. Booker, 543 U.S. ___,

125 S. Ct. 738 (2005).

                                I. BACKGROUND

      In May 2002, the Postal Inspection Service received information that a mail

drop address in Lawrenceville, Georgia was receiving mail consisting of credit

card applications, credit cards, and checks in various names. Based upon further

investigation, Postal Inspectors discovered that Umole, using a number of aliases,

had rented multiple apartments and mail drops for the purpose of receiving credit

card applications, credit cards, and checks.

      When the Postal Inspectors determined the address of Umole’s actual

residence, they arrested him on the basis of a federal complaint and arrest warrant.

Prior to the arrest, Postal Inspector Carmen Reese submitted an application for a

search warrant to a Superior Court Judge in Gwinnett County, Georgia. In her

affidavit supporting the application for the warrant, Umole claims that Inspector

Reese swore under oath that she was “a duly sworn, certified law enforcement



                                          2
officer charged with the duty to investigate criminal activity and enforce the

criminal laws of the state.”

         Umole moved to suppress the fruits of that search, contending that Inspector

Reese made a false statement deliberately or recklessly. After the district court

denied his motion, Umole pled guilty to one count of credit card fraud in violation

of 18 U.S.C. § 1029(a)(2).

                           II. STANDARDS OF REVIEW

         We review the district court’s findings of fact on a motion to suppress only

for clear error, see United States v. Jackson, 120 F.3d 1226, 1228 (11th Cir. 1997),

but review failure to grant an evidentiary hearing on a motion to suppress for an

abuse of discretion. United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir.

2000).

         Where, as here, a defendant preserves a constitutional objection to his

sentence, we review his sentence de novo, and will vacate and remand only for

harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). “To find

harmless error, [this Court] must determine that the error did not affect the

substantial rights of the parties.” United States v. Hernandez, 160 F.3d 661, 670

(11th Cir. 1998). The government bears the burden of establishing the absence of

prejudice to the defendant’s substantial rights.



                                            3
                                 III. DISCUSSION

A.    Motion to Suppress

      Umole argues that the district court erred in failing to grant him an

evidentiary hearing regarding the veracity of the affidavit upon which the search

warrant was based.

      In Franks v. Delaware, the Supreme Court established when a criminal

defendant is entitled to an such a hearing. 438 U.S. 154, 98 S. Ct. 2674 (1978).

First, the affidavit supporting the warrant is presumed to be valid. Id. at 171. The

challenger must allege deliberate falsehood or reckless disregard for truth and

support these allegations with proof, pointing specifically to the portions of the

affidavit claimed to be false. Id. In addition, the Court stated, “Finally, if these

requirements are met, and if, when material that is the subject of the alleged falsity

or reckless disregard is set to one side, there remains sufficient content in the

warrant affidavit to support a finding of probable cause, no hearing is required.”

Id. at 171-72.

      This Court, in United States v. Novaton, 271 F.3d 968 (11th Cir. 2001),

elaborated on the showing required to obtain a Franks hearing. We inferred that

the defendant also bears the burden of showing that, “absent those

misrepresentations or omissions, probable cause would have been lacking.” Id. at



                                           4
987.

       Umole meets the first step in the Franks test by pointing to false statements

made by the Inspector Reese in the affidavit supporting her application for a search

warrant. In the affidavit, Inspector Reese represented that she was authorized to

investigate violations of state law. The government concedes that this statement is

untrue. Although O.C.G.A. § 35-9-15 authorizes federal officers to be appointed

as a state law enforcement officer for purposes of enforcing state or federal law,

she had not received such an appointment at the time of the search warrant

application. Thus, Umole satisfies the first requirement of Franks by showing that

Inspector Reese’s claim of authority showed a reckless disregard for the truth.1

       With respect to the second step of the showing required to obtain a Franks

hearing, Umole has not met his burden. Umole has not proved that the affidavit,

discounting the Inspector Reese’s statement, does not establish probable cause.

The district court made the following finding with respect to the affidavit: “This

court finds that the affidavit for the search warrant established probable cause. The

fact that Inspector Reese misrepresented her authority under state law to obtain the



       1
         We note that the question of whether seeking and executing a search warrant issued by a
state judicial officer violates state law is immaterial to the question before us. When a federal
officer seeks a warrant in a federal investigation, we measure the means used by officers to
obtain evidence using federal law. See United States v. Gilbert, 942 F.2d 1537, 1541 (11th Cir.
1991).

                                                5
state search warrant, when federal statutory authority grants her such authority,

does not make the resulting search unreasonable such as to violate the Fourth

Amendment.”2 Umole has neither challenged this crucial finding nor argued that,

absent Inspector Reese’s misrepresentation, there would have been no probable

cause. Because Umole has failed to carry his burden, he is not entitled to a Franks

hearing, and his conviction is affirmed.

B.     Blakely/Booker

       We have explained that there are two possible types of Booker error: (1) the

error of sentencing a defendant on the basis of facts not found by the jury nor

admitted by the defendant under a mandatory guidelines scheme, or “constitutional

error”; and (2) the error of being sentenced under a mandatory guidelines scheme,

or “statutory error.” See United States v. Shelton, 400 F.3d 1325, 1330-31 (11th

Cir. 2005).

       The Supreme Court in Booker reiterated its holding in Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), that a court does not offend the Sixth

Amendment when it sentences the defendant on the basis of facts admitted by him.

543 U.S. at __, 125 S. Ct. at 756. We have held that when a defendant waives his

objections to the Presentence Investigation Report (PSI), he is deemed to have


       2
      This finding is contained in the magistrate judge’s Order for Service of Report and
Recommendation of May 5, 2004, which the district court adopted in its entirety.

                                               6
admitted the facts contained therein. Shelton, 400 F.3d at 1330. Therefore, a court

who bases its sentence on facts in the PSI to which the defendant does not object

does not err.

      However, when the court sentences a defendant under a mandatory

guidelines system using facts not admitted by the defendant, the sentence violates

the Sixth Amendment unless the government can prove that violation was harmless

beyond a reasonable doubt. Paz, 405 F.3d at 948. In sentencing Umole under a

mandatory guidelines system, the district court applied three enhancements based

on the characteristics of the offense of credit card fraud, U.S.S.G. §§

2F1.1(b)(1)(H), 2F1.1(b)(2), and 2F1.1(b)(5)(C)(i) (2000); and applied one

enhancement for obstructing or impeding the administration of justice, under

U.S.S.G. § 3C1.1. The first three enhancements were based on the amount of loss

calculation (§ 2F1.1(b)(1)(H)), that the offense involved moved more than minimal

planning (§ 2F1.1(b)(2)), and the unauthorized transfer or use of any means of

identification unlawfully to produce or obtain other means of identification (§

2F1.1(b)(5)(C)(i)).

      With respect to the amount of loss calculation, the district court accepted the

calculation that Umole put forth and used that number as the basis for the amount

of loss enhancement. Umole lodged no further objection to the calculation.



                                           7
Therefore, he has admitted this fact, and the court’s use of the calculation as a basis

for sentencing does not violate the Sixth Amendment.

      As for the two other enhancements based on offense characteristics, Umole

made a general objection to the PSI, noting that he had not admitted the

applicability of either adjustment. Likewise, with regard to the enhancement for

obstruction of justice, Umole objected to its application. Pursuant to the

guidelines, and taking into account these enhancements, the district court imposed

a sentence of twenty-four months. The district court committed Sixth Amendment

error by doing so because these enhancements were neither admitted by Umole nor

found by a jury and were imposed under a mandatory guidelines system. Next we

address whether that error was harmless.

      The government bears the burden of proving that the district court’s error

was harmless beyond a reasonable doubt. Paz, 405 F.3d at 948. The government

has advanced two arguments in support of its contention that this error was

harmless. First, the government claims that because the district court sentenced

Umole at the high end of the 16-24 month guidelines range, the result would be the

same even in an advisory guidelines scheme. Furthermore, the government points

to the absence of any indication from the court that it would have sentenced Umole




                                           8
differently. The government’s arguments miss the point.3

       First, a sentence at the high end of the guidelines range does not, in itself,

establish harmless error. United States v. Cain, 11th Cir. 2005, __ F.3d __, (No.

04-15754, Dec. 29, 2005). This is especially true when the guideline range is

relatively small, as it is here. In United States v. Gallegos-Aguero, 409 F.3d 1274

(11th Cir. 2005), this Court found that the government had established harmless

error based on the following: 1) the sentence was the highest allowable within the

guideline range, and 2) the district court considered sentencing the defendant above

the guidelines range, to the maximum allowable under the statute of conviction.

Id. at 1277. This Court’s holding in Gallegos-Aguero depended heavily on the

district court’s comments regarding the maximum sentence allowable under the

statute of conviction, because these comments provided some indication as to

whether the defendant might have received a lower sentence if the judge had

greater discretion in sentencing. Id. at 1277 n.2. By contrast, the government’s

only affirmative showing in this case is that Umole’s sentence was at the top of the

guidelines range. A sentence at the top or bottom of the guidelines range does not



       3
         The district court also denied Umole’s request not to apply a sentencing enhancement
based on more than minimal planning enhancement found in U.S.S.G. § 2F1.1(b)(2) (2000).
This is not a denial of a request to depart downward, but rather a finding that the facts supported
this enhancement. Such a finding does not give any insight into the district court’s probable
outcome under an advisory guidelines scheme.

                                                 9
give any indication, by itself, as to what a district court might do under an advisory

guidelines scheme because that might very well reflect the norm for a particular

judge. Cain, __ F.3d at __; cf. United States v. Fields, 408 F.3d 1356, 1361 (11th

Cir. 2005) (holding in plain error context that a sentence at the bottom of the

guidelines range does not suffice for the defendant to establish prejudice).

      Moreover, the government cannot point to an absence of evidence to meet its

burden. Because the burden rests with the government in preserved error review,

an absence of evidence as to the district court’s probable outcome under an

advisory guidelines scheme weighs in favor of the defendant. See Rodriguez, 398

F.3d 1291, 1301 (noting that, in preserved error context, when the burden is on the

defendant, and when no evidence indicates what the district court might have done,

the party who bears the burden cannot meet it).

      Because the government has failed to meet its burden of proving that the

district court’s error was harmless beyond a reasonable doubt, we vacate Umole’s

sentence and remand to the district court for resentencing.

                                IV. CONCLUSION

      For the foregoing reasons, and upon careful review of the briefs and record,

we remand to the district court for proceedings consistent with this opinion.

      VACATED AND REMANDED.



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