                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0378n.06

                                            No. 08-2464                                   FILED
                                                                                      Jun 22, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )   ON APPEAL FROM THE UNITED
                                                           )   STATES DISTRICT COURT FOR
MICHAEL ELDREN BRACEY,                                     )   THE EASTERN DISTRICT OF
                                                           )   MICHIGAN
       Defendant-Appellant.                                )
                                                           )
                                                           )



       Before: MARTIN, RYAN, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Following a jury trial, Michael Bracey was convicted of

various federal narcotics and firearms offenses. On appeal, he challenges the district court’s denial

of his motion to suppress the drugs and firearms that formed the basis of the charges. We reject that

argument, and affirm Bracey’s conviction. We vacate his sentence, however, and remand for

resentencing in light of United States v. Almany, 598 F.3d 238 (6th Cir. 2010).

                                                  I.

       In April 2006, Detroit police received reports from a confidential informant that Bracey was

dealing crack cocaine. On April 8, Officer Carmen Diaz obtained and executed a search warrant for

a residence on Bradford Avenue in Detroit, which the police suspected Bracey was using as a base

for his drug-trafficking operations. During the search of the property, police found 71 grams of crack
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United States v. Bracey

cocaine, two loaded handguns, and various items of dealer paraphernalia. Officers also found ten

documents bearing Bracey’s name, as well as medication that was prescribed to him.

       Federal prosecutors charged Bracey with possession with intent to distribute crack cocaine,

see 21 U.S.C. § 841(a), possession of firearms in furtherance of a drug-trafficking crime, see 18

U.S.C. § 924(c), and being a felon in possession of a firearm, see id. § 922(g). Before trial, Bracey

filed a motion to suppress the evidence found at the Bradford Avenue residence, contending that the

warrant was not supported by probable cause. Following a hearing, the district court denied the

motion, concluding that Officer Diaz’s affidavit established probable cause, and that, even if not,

Officer Diaz had relied on the warrant in objectively reasonable good faith.

       The case proceeded to trial. Bracey was found guilty on all charges. At sentencing, the

district court calculated an advisory Sentencing Guidelines range of 360 months to life

imprisonment. The court rejected Bracey’s request for a below-Guidelines sentence and imposed

a sentence of 360 months’ imprisonment.

       This appeal followed.

                                                  II.

       Bracey first challenges the district court’s denial of his motion to suppress the evidence

seized from the Bradford Avenue residence. In this context, “we review the district court’s findings

of fact for clear error and its conclusions of law de novo.” United States v. Oliver, 397 F.3d 369, 374

(6th Cir. 2005) (quotation marks omitted).

       Bracey argues that Officer Diaz’s affidavit was insufficient to establish probable cause that

evidence would be found at the Bradford Avenue residence. He does not seriously contest that the

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affidavit established probable cause to believe that he was engaged in an ongoing drug-trafficking

operation. He contends, rather, that the affidavit did not establish any connection between that

operation and the residence that was searched. It did not, for example, state that Bracey resided or

that narcotics had been observed there. Instead, in her affidavit, Officer Diaz stated that, less than

two days before seeking the warrant, she had followed Bracey from the Bradford Avenue residence

to a gas station, where he met with two persons. None of them purchased gas or went into the

station. According to Officer Diaz, the meeting was consistent with Bracey’s usual method of

dealing drugs. Officer Diaz also related that a confidential informant, who had proved reliable on

previous occasions, reported that Bracey’s practice was to store cocaine at his residence and then

bring it to clients after arranging for delivery during a cell phone conversation. Finally, the affidavit

also stated that, less than a day before the warrant was issued, Officer Diaz had observed two

incidents in which individuals arrived at the Bradford Avenue residence late at night and left after

staying fewer than seven minutes.

        According to Bracey, these pieces of evidence—even taken together—establish only that a

known drug dealer was seen leaving the Bradford Avenue residence on a single occasion. And that,

he says, renders the warrant defective in light of the rule that “a suspect’s mere presence . . . at a

residence is too insignificant a connection with that residence to establish that relationship necessary

to a finding of probable cause.” United States v. Savoca, 761 F.2d 292, 297 (6th Cir. 1985)

(quotation marks omitted).

        But whether or not Bracey is correct that the warrant was not supported by probable cause,

suppression would be unwarranted because of the good-faith exception to the exclusionary rule. See

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United States v. Bracey

United States v. Leon, 468 U.S. 897 (1984). Under that exception, evidence seized pursuant to an

invalid search warrant will be admitted so long as the executing officers relied on the warrant in

objectively reasonable good faith. See Leon, 468 U.S. at 922; Massachusetts v. Sheppard, 468 U.S.

981, 987-88 (1984). We choose to address Bracey’s argument on that ground here. See generally

United States v. Watson, 498 F.3d 429, 431 (6th Cir. 2007) (noting that a court may rely on the good-

faith exception without resolving the validity of the warrant).

       In Leon, the Court observed that police officers executing a search warrant ordinarily “cannot

be expected to question the magistrate’s probable-cause determination.” 468 U.S. at 921. When

officers have obtained a warrant, therefore, suppression is warranted only in extraordinary

circumstances, such as when “the “warrant [is] based on an affidavit so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable.” Id. at 923 (quotation marks

and citations omitted). These so-called “bare bones” affidavits “contain[] only suspicions, beliefs,

or conclusions, without providing some underlying factual circumstances regarding veracity,

reliability, and basis of knowledge,” or otherwise fail to disclose “some modicum of evidence,

however slight,” connecting the crime under investigation to the place to be searched. United States

v. Laughton, 409 F.3d 744, 748-49 (6th Cir. 2005) (quotation marks omitted).

       Here, several pieces of evidence connected Bracey’s drug-trafficking operation to the

Bradford Avenue residence. First, the affidavit stated that Officer Diaz had observed Bracey

traveling directly from the Bradford Avenue residence to what appeared to be drug transactions.

Second, a reliable confidential informant had indicated that Bracey’s general practice was to store

narcotics at his residence until he received a request for delivery from a client. In combination with

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United States v. Bracey

Officer Diaz’s observation of Bracey traveling from the property to a suspected drug transaction, this

suggested that Bracey was storing narcotics at the property. Third, during surveillance shortly before

the warrant was issued, Officer Diaz observed two suspicious incidents in which individuals arrived

at the Bradford Avenue residence late at night and then departed after staying only a few minutes.

       The affidavit therefore provided more than “a modicum of evidence” connecting the Bradford

Avenue residence to Bracey’s ongoing drug-trafficking activity. Laughton, 409 F.3d at 749.

Consequently, the affidavit was not so deficient that Officer Diaz “could not have harbored an

objectively reasonable belief in the existence of probable cause.” Leon, 468 U.S. at 926. The district

court properly denied Bracey’s motion to suppress.

                                                 III.

       Bracey also urges us to remand for resentencing in light of our recent decision in United

States v. Almany, 598 F.3d 238 (6th Cir. 2010). There, we held that the five-year mandatory

consecutive prison term imposed by 18 U.S.C. § 924(c)(1)(A) does not apply when the defendant

is also subject to a higher mandatory sentence for another offense. See 598 F.3d at 241-42. Because

Bracey’s sentencing occurred before Almany was decided, the district court understandably

concluded that Bracey was subject to a mandatory five-year sentence under § 924(c)(1)(A) even

though he was also subject to a mandatory 20-year sentence under 21 U.S.C. § 841(b)(1)(A). In light

of Almany, however, the resulting total minimum sentence of 25 years’ imprisonment was erroneous.

Bracey was in fact subject to a mandatory minimum of 20 years’ imprisonment.

       The district court’s incorrect calculation of the mandatory minimum may have affected the

sentence the court ultimately selected. In explaining its decision to impose a 30-year sentence, the

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district court noted its understanding that Bracey was subject to a mandatory minimum of 25 years’

imprisonment. Other aspects of the sentencing transcript suggest that the mistaken calculation might

not have made a difference in the end. We think it best, however, to remand for resentencing in light

of Almany. In doing so, we intimate no views on the merits of the 30-year sentence the district court

originally imposed. (Although Almany’s continuing validity is at issue in two cases pending before

the Supreme Court, Gould v. United States, 130 S. Ct. 1283 (2010), and Abbott v. United States, 130

S. Ct. 1284 (2010), we decline the government’s invitation to delay the resolution of this appeal until

those cases are decided.)

       We affirm Bracey’s conviction, vacate his sentence, and remand for resentencing consistent

with this opinion.




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