                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0798n.06
                           Filed: November 14, 2007

                                           No. 06-2218

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF MICHIGAN
GREGORY T. SCHOENINGER,                )
                                       )                         OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: BATCHELDER, MOORE, and COLE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Gregory Schoeninger

(“Schoeninger”) appeals his conviction and sentence following a three-day jury trial in March 2006

in the U.S. District Court for the Eastern District of Michigan. The jury convicted Schoeninger of

one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and one

count of possession of methamphetamine in violation of 21 U.S.C. § 844. Schoeninger’s principal

argument on appeal is that the district court improperly denied his motion to suppress physical

evidence because the affidavit in support of the warrant did not establish probable cause. Because

the supporting affidavit extensively detailed a suspected narcotics operation and included evidence,

from both an informant and police surveillance, connecting Schoeninger’s residence to the operation,

we hold that the affidavit established probable cause to search his residence. We therefore AFFIRM

Schoeninger’s conviction and sentence.
                                       I. BACKGROUND

       On March 10, 2005, state and federal law-enforcement officers executed a series of search

warrants related to an investigation of methamphetamine manufacture in Macomb and St. Clair

Counties, Michigan. The investigation, conducted by the County of Macomb Enforcement Team

(“COMET”), included nearly a month of surveillance of various suspected methamphetamine

laboratories, including one operated by Demetrius Meffer (“Meffer”) in New Haven, Michigan.

       In February 2005, COMET officers learned from a confidential informant that a

methamphetamine laboratory was active near the New Haven Police Department. Because COMET

had previously received information about Meffer’s methamphetamine manufacturing, use, and

distribution, in February 2005 COMET officers began surveillance of Meffer’s residence and a

building he frequented, which they suspected housed his methamphetamine laboratory. Over the

next few weeks, COMET officers observed Meffer purchase several items and chemicals used in the

manufacture of methamphetamine, such as propane, brake pads and brake cleaner, spray paint, and

bottled water. COMET officers also watched Meffer and another individual work on a van,

removing its roof panel and appearing to construct a hidden compartment. On three separate

occasions, a COMET officer approached the suspected laboratory and reported smelling strong

chemical odors, describing them “as a sulfur type odor,” consistent with the odor of a

methamphetamine laboratory. Joint Appendix (“J.A.”) at 86, 88-89, 91-92 (Search Warrant and

Affidavit, Mar. 9, 2005, at 6, 8-9, 11-12).

       On February 12, 2005, COMET officers saw a white female drive to Meffer’s suspected lab

in a green truck. The woman knocked on the door to the lab, received no answer, and made several

phone calls on a cellular phone. Meanwhile, COMET officers conducting surveillance of Meffer’s


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residence saw him leave his residence and drive directly to the lab, where he met the woman driving

the green truck, who had briefly left the lab surveillance area. The officers watched Meffer raise the

hood of the woman’s vehicle and make several trips in and out of the building, but he carried no

tools or parts for working on the vehicle. Shortly after this encounter, officers conducted a traffic

stop and identified the driver of the green truck as Schoeninger’s wife, Patricia Schoeninger (“Ms.

Schoeninger”), a resident of a specified residence in Algonac, Michigan. After Ms. Schoeninger left,

COMET officers watched an individual enter Meffer’s suspected lab with a bag and leave empty-

handed, and another individual enter the building carrying nothing and emerge with a bag. Meffer

then left the lab and purchased brake pads, brake cleaner, and refilled a propane tank.

        The affidavit stated that both Schoeninger and his wife were “very well known to the police

in both Algonac and Clay Township.” J.A. at 84 (Aff. at 4). The affidavit claimed that Schoeninger

was “well known” as being a “regular methamphetamine user.” Id. In October 2001, Michigan State

Police troopers arrested Schoeninger for possession of crystal methamphetamine, and in September

2003, police officers in Clay Township recovered numerous methamphetamine precursors that had

fallen out of Schoeninger’s motorcycle saddlebag as he left a grocery store parking lot. Among the

items found in the parking lot were thirty-five boxes of matches, six boxes of cold tablets containing

pseudoephedrine, and five packages of 100-count clear plastic bags. The store clerk reported that,

when she jokingly asked Schoeninger how long the matches would last him, he replied “about two

minutes,” which is consistent with the amount of time needed to introduce red phosphorus, a

chemical contained in matches and matchbooks, into a methamphetamine mixture. J.A. at 85, 94

(Aff. at 5, 14).




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       On February 21, 2005, COMET officers watched two unknown persons driving a van with

Florida license plates arrive at Meffer’s suspected laboratory around 10 p.m. The driver exited the

van and knocked on the garage door, but received no response. Then, moving to a window of the

building where a surveillance camera was located, the driver “began to jump up and down, waving

his arms in front of the window,” but again received no response. J.A. at 88-89 (Aff. at 8-9). The

driver returned to the van and left. COMET officers followed as the van drove to the specified

address in Algonac, Michigan, which was the residence of Schoeninger and his wife. The driver and

a passenger exited the van and entered the Schoeninger residence.

       On March 1, 2005, a confidential informant (“CI”) provided information to the St. Clair

County Drug Task Force (“DTF”) that a methamphetamine laboratory was operating in New Haven,

and the CI personally led DTF to Meffer’s suspected lab. The CI also claimed that an acquaintance

made visits to this lab with a woman identified as Patricia from Algonac. The CI stated that the

acquaintance and Patricia “go in [to the lab] and pick up meth for themselves, as well as additional

amounts of meth for sale and distribution.” J.A. at 89 (Aff. at 9). DTF officers believed “Patricia

from Algonac” to be Ms. Schoeninger, and the affidavit noted that “[t]he physical description given

by the CI is an exact match of [Ms. Schoeninger’s] drivers license image and information.” J.A. at

90 (Aff. at 10).

       As a result of the information obtained from surveillance and various informants, COMET

officers applied for and executed a series of search warrants on March 9 and 10, 2005, uncovering

active methamphetamine laboratories at two locations. During the search of Schoeninger’s residence

in Algonac, Michigan, officers recovered a firearm after Schoeninger alerted them to its presence.

The original search warrant for Schoeninger’s residence covered only records, proceeds, and firearms


                                                 4
relating to drug trafficking. COMET officers found a substance, within ten feet of where they

encountered Schoeninger, that they suspected was methamphetamine, and a field test indicated that

it was methamphetamine. The officers then sought and obtained a second search warrant authorizing

an expanded search for illegal drugs and related materials. During the execution of the second search

warrant, officers found methamphetamine, a methamphetamine pipe with residue, two digital scales,

thirty cases of match books, a brochure on methamphetamine use, and approximately $421 in cash.

        A federal grand jury in the Eastern District of Michigan indicted Schoeninger on July 7,

2005. On September 25, 2005, Schoeninger filed a motion to suppress evidence seized from his

residence. The district court held a hearing on January 27, 2006, and then entered an Order denying

the motion on February 1, 2006.

        During Schoeninger’s trial, the government called Christy Bale (“Bale”) to testify about

conversations he had with Schoeninger while they were housed in the same federal detention facility

for several months in 2005 and 2006. Bale testified that Schoeninger “said he had a .44 [caliber

firearm] and that his wife was trying to get witnesses put together and he was trying to get his wife

to take the rap, the charge, because she didn’t have, you know, nothing for a record.” J.A. at 211

(Trial Tr. at 31). Bale also testified that, while he was being escorted by United States Marshals in

the lockup area on the morning before he was to testify at Schoeninger’s trial, he walked past

Schoeninger and that Schoeninger made a threatening gesture, sliding his right hand across his

throat. Bale immediately told his attorney; after his attorney notified the district court, Bale testified

at a hearing that day about the incident. At the conclusion of the government’s case, the defense

rested without presenting any evidence.




                                                    5
          The jury found Schoeninger guilty of both counts. At the sentencing hearing, the district

court found a sentencing guideline enhancement for obstruction of justice, relating to the threatening

gesture directed at Bale. The court stated that “I certainly believe by a preponderance of the

evidence, at the very minimum, that this threatening gesture was made, and therefore the Court will

not have the [presentence] report changed and I will add the two points for obstruction of justice.”

J.A. at 291 (Sent. Hr’g Tr. at 10). As a result, Schoeninger’s total offense level remained at 22, as

calculated by the Probation Office in Schoeninger’s presentence investigation report (“PSR”), which

produced a Guideline range of forty-six to fifty-seven months in prison.

          The district court sentenced Schoeninger to fifty-seven months in prison and three years of

supervised release for the firearm conviction, concurrent with twelve months in prison and one year

of supervised release for the methamphetamine conviction. Schoeninger timely filed his notice of

appeal.

                                            II. ANALYSIS

          Schoeninger presents two arguments on appeal: first, he argues that his case should be

remanded for re-sentencing because the district court found a sentencing-guideline enhancement by

the preponderance of the evidence; second, he argues that the district court should have granted his

motion to suppress physical evidence because the affidavit in support of the warrant to search his

residence did not establish probable cause. Neither of his arguments has merit.

A. Standard of Proof at Sentencing

          Schoeninger argues that “[t]he district court’s refusal to determine the sentencing guidelines

enhancement beyond a reasonable doubt violates due process under the Fifth Amendment and the

right to a jury trial under the Sixth Amendment” in light of Cunningham v. California, 127 S. Ct.


                                                    6
856 (2007). Appellant Br. at 11. Along with other circuits, we have previously rejected this

argument, and the Supreme Court’s decision in Cunningham offers no support to Schoeninger’s

argument.

       In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that mandatory

application of the United States Sentencing Guidelines violated the Sixth Amendment, and the Court

excised the portion of the Sentencing Reform Act that made the Guidelines mandatory, thereby

rendering them advisory. With the Guidelines advisory, we have held that district courts may

determine sentencing facts under a preponderance-of-the-evidence standard. See, e.g., United States

v. Mickens, 453 F.3d 668 (6th Cir.), cert. denied, 127 S. Ct. 540 (2006). In Mickens, we stated that

“[b]y now, it is well established that the preponderance standard does not violate Booker, so long

as the trial court appreciates that the guidelines are advisory, not binding.” Id. at 673 (citing cases

from the Second, Sixth, and Seventh Circuits); see also United States v. Cook, 453 F.3d 775, 777

(6th Cir. 2006) (citing cases from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Eleventh,

and D.C. Circuits).1

       The Supreme Court’s recent opinion in Cunningham offers no support to Schoeninger’s

argument. Indeed, in Cunningham the Court reiterated that every Justice “acknowledged that the

Federal Guidelines would not implicate the Sixth Amendment were they advisory.” Cunningham,

127 S. Ct. at 866. The result in Cunningham was to strike down California’s sentencing system after

the Court noted that California’s system “resembles pre-Booker federal sentencing” and that

“California’s [system] does not resemble the advisory system the Booker Court had in view.” Id.




       1
           Schoeninger makes no argument that the district court viewed the guidelines as binding.

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at 866 n.10, 870. Rather than help Schoeninger’s argument, Cunningham makes clear that an

advisory system of guidelines and a preponderance standard do not implicate the Sixth Amendment.

B. Whether the Affidavit Established Probable Cause to Search the Schoeninger Residence

       1. Standard of Review

       “The standard of review for the sufficiency of an affidavit ‘is whether the magistrate had a

substantial basis for finding that the affidavit established probable cause to believe that the evidence

would be found at the place cited.’” United States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001)

(quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). “This court pays great

deference to the determinations of probable cause made by a state magistrate, whose findings ‘should

not be set aside unless arbitrarily exercised.’” United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir.

1998) (quoting United States v. Pelham, 801 F.2d 875, 877 (6th Cir. 1986)). “Probable cause exists

‘when there is a “fair probability,” given the totality of the circumstances, that contraband or

evidence of a crime will be found in a particular place.’” Greene, 250 F.3d at 479 (quoting

Davidson, 936 F.2d at 859). “In reviewing the district court’s denial of a defendant’s motion to

suppress, this Court reviews the district court’s findings of fact for clear error and its conclusions

of law de novo.” United States v. Miggins, 302 F.3d 384, 397 (6th Cir. 2002).

       2. Analysis

       Schoeninger argues that the supporting affidavit in his case failed to establish probable cause

because the affidavit “mainly related to defendant Dem[e]trius Meffer” and the affidavit “did nothing

to connect the Schoeninger home to methamphetamine production, consumption or presence.”




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Appellant Br. at 14, 16. Schoeninger also claims that information in the affidavit was stale,2 and he

attacks the affidavit’s reliance on confidential informants. Id. at 16-19. Asserting that “[i]n this

case, the basis for the purported reliability of the informant(s) is impossible to ascertain as there is

no recitation of how the informant’s information was determined to be reliable or how it was

corroborated,” Schoeninger argues that “the magistrate appears to have abdicated his duty to

independently determine whether probable cause existed” to search Schoeninger’s residence. Id. at

17-18. Each of Schoeninger’s arguments lacks merit.

       First, although Schoeninger correctly characterizes the affidavit as focusing mainly on

Meffer, the affidavit nonetheless contained ample information connecting the Schoeninger residence

to suspected illegal activity at Meffer’s alleged lab. On February 12, 2005, COMET officers

observed Schoeninger’s wife drive to Meffer’s suspected methamphetamine lab and, after receiving

no answer to her knocking, use her cellular phone; at that time, other officers conducting surveillance

of Meffer’s residence saw Meffer leave and travel to the lab, where he and Ms. Schoeninger met.

The officers also described activity that reasonably appeared suspicious and was possibly meant to

cover a drug transaction: Meffer raised the hood of her vehicle and made several trips in and out of

the suspected lab, but carried no tools for working on the car. After Ms. Schoeninger left the

suspected lab, officers observed Meffer leave to purchase more methamphetamine precursors such

as propane, brake pads, and brake cleaner. Furthermore, on February 21, 2005, COMET officers


        2
         Schoeninger makes only two bare assertions that the affidavit contained stale information,
see Appellant Br. at 16 (“the information contained therein is stale” and “[m]ost of the information
was stale”), and he does not identify any particular information as stale. Most of the affidavit
focuses on the results of the COMET officers’ month-long surveillance of Meffer’s suspected
methamphetamine lab and is certainly not stale. In any event, an issue merely adverted to in a
perfunctory manner in an appellate brief and not developed may be deemed waived. See United
States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999).

                                                   9
watched a van bearing out-of-state license plates drive to Meffer’s suspected lab; when the van’s

driver received no answer at the lab, the officers followed as the van drove to Schoeninger’s

residence in Algonac, which the van’s occupants entered. Combined with the information from a

CI that “Patricia from Algonac” purchased methamphetamine from Meffer for sale and distribution,

the van incident furnished a reasonable basis to infer that the Schoeninger residence, like Meffer’s

suspected lab, was a source known for supplying methamphetamine, and a source known even to

individuals outside the community. Finally, the affidavit noted that Schoeninger has a criminal

history involving methamphetamine use and possession.

        Second, contrary to Schoeninger’s assertion that the officers failed to corroborate the CI’s

information, the affidavit details significant corroborative action. For instance, the CI led officers

to the suspected lab, described an individual known as “Patricia from Algonac” as a customer of the

lab—and a dealer in her own right—and provided a physical description that matched Ms.

Schoeninger’s driver’s-license information. Furthermore, COMET officers had personally observed

Ms. Schoeninger visit Meffer’s suspected methamphetamine lab on another occasion, corroborating

the CI’s claims that “Patricia” would go to the lab “and pick up meth . . . for sale and distribution.”

J.A. at 89 (Aff. at 9). The incident involving the out-of-town van visiting the Schoeninger residence

after unsuccessfully attempting to make contact at Meffer’s suspected lab also tended to confirm the

CI’s assertion that Patricia from Algonac purchased methamphetamine in amounts sufficient for

distribution.

        Finally, our cases demonstrate that probable cause existed to search the Schoeninger

residence. Schoeninger portrays the affidavit in his case as similar to those in United States v. Leake,

998 F.2d 1359 (6th Cir. 1993) (affirming suppression of evidence by district court), and United


                                                  10
States v. Weaver, 99 F.3d 1372 (6th Cir. 1996) (reversing district court’s denial of motion to

suppress). Schoeninger’s case, however, differs from each in significant ways.

       In Leake, we affirmed the district court’s suppression of evidence, citing two problems with

the affidavit in that case. We noted that “the information provided by the anonymous caller in this

case was not ‘rich’ in relevant detail” and that the officer’s “corroboration of the information

provided by the caller was simply insufficient.” Leake, 998 F.2d at 1365. We concluded that

“[u]ltimately, this case demonstrates the importance of taking sufficient time to verify an anonymous

tip before a warrant is requested,” explaining that “[t]he supporting affidavit was too vague and [the

officer’s] limited two-night surveillance was insufficient to verify important elements of the

anonymous caller’s information.” Id. The affidavit and corroborative work in Schoeninger’s case

stands in stark contrast to the facts in Leake: here, the affidavit spanned nearly twenty pages,

contained extensive details regarding the purchases and visits of various individuals connected to

the suspected methamphetamine lab, included information supplied not by an anonymous informant

but by a corroborated confidential informant, and involved a nearly one-month period of

surveillance.

       The differences between Schoeninger’s case and Weaver are likewise clear. In Weaver, we

noted that “the only claim of possible wrongdoing [in the affidavit] is the averment that, within three

days prior to the affidavit date, the informant was on the suspect[’s] premises and, while there, he

saw some quantity of marijuana ‘expressly for the purpose of unlawful distribution.’” Weaver, 99

F.3d at 1378.     The affidavit in Weaver was largely pre-printed, containing essentially no

particularized information beyond that which “could arguably be obtained by any person passing the

[suspect’s] house.” Id. at 1378-79. We specifically observed that although the officer had received


                                                  11
a tip about the defendant’s illegal activities, he “undertook no substantive independent investigative

actions to corroborate his informant’s claims, such as surveillance of the [defendant’s] residence for

undue traffic.” Id. at 1379 (emphasis added). In contrast, the affidavit supporting the warrant in

Schoeninger’s case was not lacking for detail, and the officers conducted significant surveillance.

Further, they corroborated the information that the CI provided: the CI led officers to the suspected

lab and offered a description of “Patricia from Algonac” that matched the information on Ms.

Schoeninger’s driver’s license.

        Although the government argues that we have “held that evidence of drug dealing is likely

to be found where dealers live,” Appellee Br. at 19 (citing United States v. Miggins, 302 F.3d 384,

393-94 (6th Cir. 2002), we have recently emphasized that a suspect’s status as a drug dealer alone

is insufficient to establish probable cause to search the suspect’s residence. See United States v.

McPhearson, 469 F.3d 518, 525 n.3 (6th Cir. 2006) (“[O]ur case law does not ‘support[] the

proposition that the defendant’s status as a drug dealer, standing alone, gives rise to a fair probability

that drugs will be found in his home.’”) (quoting United States v. Frazier, 423 F.3d 526, 533 (6th

Cir. 2005)); see also United States v. Laughton, 409 F.3d 744, 747-49 (6th Cir. 2005) (describing

cases as requiring some “connection between the residence to be searched and the facts of criminal

activity that the officer set out in [the] affidavit”). In any event, the affidavit in this case contained

evidence connecting criminal activity to the place to be searched. Beyond the CI’s assertion that Ms.

Schoeninger engaged in the distribution of methamphetamine, the COMET officers’ surveillance

revealed that an out-of-state vehicle proceeded to the Schoeninger residence immediately after an

unsuccessful attempt to enter Meffer’s suspected lab, which tends to raise a fair probability that

evidence of criminal activity would be found at the Schoeninger residence. The officers here also


                                                   12
relied on more than the CI’s bare assertion that “Patricia from Algonac” was a dealer and user who

frequented a lab in New Haven, Michigan. The officers had the CI physically lead them to Meffer’s

lab, the location from which the CI claimed to know that “Patricia from Algonac” purchased

methamphetamine. Moreover, the officers had been conducting surveillance on that location for

nearly a month, during which time they had observed Ms. Schoeninger visit the suspected lab under

suspicious circumstances.

       In sum, our cases support affirming the district court’s denial of Schoeninger’s motion to

suppress because the affidavit in this case bears little relation to those found problematic in prior

cases and because the contents of the affidavit adequately established probable cause to believe that

the officers would find evidence of criminal activity at the Schoeninger residence.

                                       III. CONCLUSION

       For the foregoing reasons, we AFFIRM Schoeninger’s conviction and sentence.




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