                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3079
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the Southern
      v.                                * District of Iowa.
                                        *
Everette Laverne Haines,                *      [UNPUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: March 11, 2004

                                 Filed: March 30, 2004
                                  ___________

Before WOLLMAN, FAGG, and HANSEN, Circuit Judges.
                          ___________

PER CURIAM.

      Police received a report that a person driving a motorcycle registered to
Everette Laverne Haines had purchased a large quantity of pseudoephedrine, a
precursor for the manufacture of methamphetamine. A short time later, an officer
drove by Haines’s residence, saw the motorcycle in the front yard, and “got a strong
smell of ether,” an odor associated with drug manufacturing. Based on this
information, the officers obtained a warrant to search Haines’s home, and seized a
sawed-off shotgun during the search. The Government later charged Haines with
possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841 & 5861.
After the district court denied his motion to suppress and request for a Franks hearing,
Haines pleaded guilty.

      On appeal, Haines first contends his motion to suppress should have been
granted because the officer’s supporting affidavit contained deliberate or reckless
falsehoods and omissions in violation of Franks v. Delaware, 438 U.S. 154 (1978).
According to Franks, the Fourth Amendment requires that a hearing be held at the
defendant’s request when the defendant makes a substantial preliminary showing that
the affiant deliberately or recklessly included a false statement in the warrant
affidavit, and that the allegedly false statement is necessary to the finding of probable
cause. Id. at 155-56; see United States v. Coleman, 349 F.3d 1077, 1083 (8th Cir.
2003). The district court found Haines failed to make this showing.

       Specifically, Haines alleges the warrant affidavit falsely stated an officer had
reported Everette Haines, rather than an unknown person, had purchased large
quantities of pseudoephedrine. The district court found Haines had not made a
substantial preliminary showing that the officer’s use of Haines’s name was deliberate
or made with reckless disregard for the truth. Further, the omission of Haines’s name
from the affidavit would leave enough probable cause to support the search warrant,
since the person who bought the pseudoephedrine was driving a motorcycle
registered to Haines and the motorcycle was parked in Haines’s yard a short time
later. Haines also argues the officer could not reasonably have smelled ether because
of the wind’s direction that day. He points out no ether was found on his premises.
The district court held the mere fact that the Iowa City weather service provided
different information than the wind information provided by police radio dispatch
was insufficient to make a substantial showing that the officer affirmatively misled
the court or recklessly disregarded the truth of whether or not he smelled ether.
Having carefully reviewed the record, we see no clear error in the district court’s
findings. See id. (standard of review). The district court thus properly denied a
Franks hearing and Haines’s motion to suppress.

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       Although Haines’s case did not go to trial, he next asserts the district court
erroneously refused to instruct the jury on his theory of defense–that he was in the
process of making a legal length shotgun when the search was conducted. Haines
contends this refusal violated his rights to due process and effective representation
under the Fifth and Sixth Amendments. The Government filed a motion in limine
seeking to exclude evidence about the length of the gun with the choke attached and
Haines’s alleged intention to place a choke on the weapon. The district court denied
the motion, permitting the evidence to be introduced at trial, but stating it would
“probably” instruct the jury the choke is not added to the shotgun’s measurement in
determining whether it violated the statute, a correct statement under the Bureau of
Alcohol, Tobacco and Firearms regulations. We conclude Haines’s rights to due
process and effective representation were not violated. The district court’s order did
not impede Haines’s ability to present evidence on the issue or to object to the
instruction at trial if the district court would have given it, an event no one can say
would have happened.

       Haines last contends the district court committed error in increasing his base
offense level by four under U.S.S.G. § 2K2.1(b)(5) based on the court’s finding that
Haines possessed the firearm in connection with another felony, possession of drug
precursors with intent to manufacture methamphetamine. Haines asserts there was
no evidence he was involved in another felony when he possessed the firearm. We
review the district court’s contrary finding for clear error, and find none. United
States v. Marks, 328 F.3d 1015, 1017 (8th Cir. 2003). The Government showed by a
preponderance of the evidence that Haines possessed drug precursors with intent to
manufacture methamphetamine, see id. , a felony under Iowa law. Haines possessed
the pseudoephedrine pills, which he had removed from its original packaging and
concealed inside a cigarette package. Haines discarded the original packaging away
from his residence and misled police about its location. Haines also possessed
another precursor–lithium batteries–as well as safety glasses, camouflage clothing,
two-way radios, and firearms. Haines also argues there is no evidence he possessed

                                         -3-
the gun in connection with the alleged felony because the gun was inside his
residence and the other evidence was on his motorcycle or in his garage. The §
2K2.1(b)(5) increase must be imposed unless it is clearly improbable Haines
possessed the firearm in connection with another felony offense. Id.; United States
v. Agee, 333 F.3d 864, 866 (8th Cir. 2003). Under the circumstances, the district court
correctly found Haines’s possessed the firearm in connection with another felony.
See Agee, 333 F.3d at 866.

      We thus affirm Haines’s conviction and sentence.
                     ______________________________




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