                    Case: 11-16119          Date Filed: 11/20/2012       Page: 1 of 3

                                                                              [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-16119
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 6:11-cr-00037-GAP-KRS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                          Plaintiff-Appellee,

                                                   versus

DANIEL MARTINEZ,

                                             llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (November 20, 2012)

Before PRYOR, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 11-16119     Date Filed: 11/20/2012    Page: 2 of 3

      Daniel Martinez appeals his convictions for possessing with intent to

distribute and manufacture marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(D), possessing

of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A),

(c)(2), and possessing a firearm and ammunition as a convicted felon, id. §§

922(g)(1), 924(a)(2). Martinez argues that the district court should have granted

his motion to suppress evidence seized during execution of a search warrant

because there were false statements in the underlying affidavit. We affirm.

      On denial of a motion to suppress, we review findings of fact for clear error

and the application of law to those facts de novo. United States v. Spoerke, 568

F.3d 1236, 1244 (11th Cir. 2009). We construe all facts in the light most

favorable to the United States, id., and defer to the findings of the district court,

including those involving the credibility of witnesses, “unless [its] understanding

of the facts appears to be unbelievable.” United States v. Ramirez-Chilel, 289

F.3d 744, 749 (11th Cir. 2002) (internal quotation marks omitted).

      The district court did not err by denying Martinez’s motion to suppress.

Detective Matthew Ochiuzzo’s affidavit provided probable cause to issue a

warrant to search Martinez’s residence for marijuana. See United States v. Lueck,

678 F.2d 895, 903 (11th Cir. 1982). Ochiuzzo’s affidavit stated that, while he

stood “at the front door of the target residence, [he] and Detective [Christopher]

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              Case: 11-16119     Date Filed: 11/20/2012    Page: 3 of 3

Carty immediately smelled the odor of fresh cannabis omitting from inside of the

target residence”; based on “his training and experience” he knew from the

“concentrated smell” that the residence contained a “large quantity of fresh

cannabis”; and he could distinguish between “fresh cannabis [which] has a much

stronger [odor] than that of burnt cannabis cigarette.” Although Ochiuzzo averred

that he acted on an “anonymous tip from a Confidential Source” that the residence

was a marijuana grow house, and Ochiuzzo later testified that he acted on a tip

from an undercover agent, that discrepancy was immaterial. See United States v.

Ofshe, 817 F.2d 1508, 1513 (11th Cir. 1987). Ochiuzzo’s affidavit did not contain

a “deliberate falsehood.” Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674,

2684 (1978). Ochiuzzo testified that he considered the agent a “confidential

source” because “there was confusion about whether [he needed to] protect[] the

identity of the agent[].” And the district court did not clearly err by crediting

Ochiuzzo’s and Carty’s testimony about the smell of marijuana. Although three

other officers testified that they did not smell marijuana while waiting to execute

the search warrant, those officers stated that they waited in the driveway and on

the sidewalk some 15 to 25 feet away from the house.

      We AFFIRM Martinez’s convictions.




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