               Case: 10-15345       Date Filed: 07/24/2012      Page: 1 of 21

                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                            ________________________

                                    No. 10-15345
                              ________________________

                        D.C. Docket No. 1:09-cr-20470-JEM-2


UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                           versus

EMMANUEL MAXIME

                                                                      Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           _________________________

                                      (July 24, 2012)


Before MARCUS and BLACK, Circuit Judges, and HODGES,* District Judge.

HODGES, District Judge:


       *Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
              Case: 10-15345     Date Filed: 07/24/2012   Page: 2 of 21

      Emmanuel Maxime stands convicted and sentenced for a conspiracy and a

substantive offense, respectively, in violation of the Hobbs Act, 18 U.S.C. §

1951(a), and a firearms offense in violation of 18 U.S.C. §§ 924(c)(1)(A) and

924(j). The charges against him arose out of the robbery and murder of Carlos

Alvarado while Mr. Alvarado was on duty as a security guard employed by

Dunbar Security, Inc., on an armored vehicle transporting cash collected from

various retail merchants in Miami-Dade County, Florida. Maxime received

consecutive sentences aggregating to a term of life imprisonment plus forty years.

He appeals and asserts five claims of reversible error. After oral argument and

careful review of his claims, we affirm the judgment of the district court in all

respects.

                                          I

      On Monday, December 1, 2008, Carlos Alvarado exited his armored vehicle

in the parking lot of the Dadeland Mall in Miami-Dade County, Florida shortly

after 11:00 a.m. He then entered the mall carrying a Dunbar Security canvas bag.

His purpose was to collect accumulated cash from several of the retail stores in the

mall. He visited the stores and had over $60,000.00 in his bag as he walked

toward an exit from the mall in or near a store called The Express.




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      Earlier, while Alvarado was making his collections in the mall, witnesses

observed two men walking around in The Express and in the area of the mall just

outside the store. Both were dressed in all black clothing and both were talking on

cellular telephones, apparently communicating with each other. These two men

were later identified as Dwight Carter and Emmanuel Maxime, the appellant.

      As Alvarado approached the exit from the mall, Carter and Maxime, with

firearms in their hands, rushed up to Alvarado yelling for him to drop his bag and

get on the ground. Alvarado did not immediately comply and Carter fired at least

eight or nine shots at him, four of which found their mark. Carter grabbed the

Dunbar bag and he and Maxime made a successful getaway. Carlos Alvarado was

pronounced dead at a hospital about an hour later.

      After the ensuing investigation focused attention on Carter and Maxime as

the probable perpetrators of the crime, a criminal complaint was filed in the

district court supported by an affidavit reciting that the investigators had

assembled several photographic arrays of six persons each using driver’s license

photos obtained from the Florida Department of Motor Vehicles. The photo

spreads containing pictures of Carter and Maxime were shown to four witnesses

who had been in the mall and who had observed the perpetrators of the crime.

Two of the witnesses identified Maxime as one of the robbers. Another two of the

                                          3
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witnesses identified Carter as the shooter. Additionally, the affidavit recited that

cellular telephone records revealed that on the morning of the crime, Maxime was

using his cell phone in the area of the mall; that Carter was also in the area of the

mall using a cell phone registered in the name of his mother; and that during the

twenty minute period before the robbery, Carter and Maxime had spoken to each

other on several occasions. The cellular telephone records also established that

Carter and Maxime were using their cell phones in the area of the Dadeland Mall

two days before the Alvarado robbery and murder.

       In addition to Carter and Maxime, two other persons were also identified as

participants in the crimes involving Mr. Alvarado. They were Erskaneshia Ritchie

and Nikkia Thomas. Ritchie was Carter’s girlfriend and Thomas was a close

friend of Ritchie. Both had provided automobiles and acted as lookouts during the

Alvarado robbery-murder, and both pled guilty and testified at Maxime’s trial.1

Their testimony not only implicated Maxime in the robbery-murder of Carlos

Alvarado, but also in two earlier robberies of a similar nature.

       1
        The original indictment was framed in three counts against four defendants: Dwight
Carter; Emmanuel Maxime; Erskaneshia Ritchie; and Nikkia Thomas. The charges were a
Hobbs Act conspiracy (Count One); a Hobbs Act substantive offense (Count Two); and the
firearm offense (Count Three). Thomas pled guilty to Count One. Ritchie pled guilty to a
superseding information. A superseding indictment was then returned against Carter and
Maxime only, naming Ritchie and Thomas as unindicted coconspirators. The district court
granted a severance to Carter and Maxime, and both received separate trials. Both were found
guilty. This appeal involves only Maxime.

                                              4
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      After his arrest, Maxime admitted his guilt but then entered a plea of not

guilty and moved to suppress his confession. When that motion was denied, he

proceeded to trial.

                                                II

      Maxime’s contentions on appeal are: (1) that his confession should have

been suppressed as a violation of his rights under Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880

(1981) because the confession was made in response to questioning after he had

requested a lawyer; (2) that the prosecution exercised its peremptory challenges to

two prospective jurors in a way that violated Batson v. Kentucky,476 U.S. 79, 106

S. Ct. 1712 (1986) and J.E.B. v. Alabama, ex rel. T.B., 511 U.S. 127, 114 S. Ct.

1419 (1994); (3) that the court erred in admitting evidence of prior bad acts in

violation of Fed. R. Evid. 404(b)(1); (4) that there was no probable cause for his

arrest and the court erred in not granting a Franks2 hearing; and (5) that his

sentence of life imprisonment was substantively unreasonable.




      2
          Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).

                                                5
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                                               III

       A.      The Motion to Suppress.3 Maxime was arrested on the morning of

May 20, 2009. He was taken to the Miami-Dade police department and placed in

an interview room without restraints. In taking his biographical information, the

investigating officer determined that Maxime was a high school graduate with

some college education; that he could read and write the English language; that he

was lucid and was not under the influence of alcohol or of any controlled

substance or medication; and that he had never suffered from, and had never been

diagnosed as having, any psychiatric or emotional dysfunction.

       The investigator then explained that before any questioning could proceed it

was necessary that Maxime understand his rights. He next reviewed with Maxime

his Miranda rights, and had him read and acknowledge those rights aloud, after

which Maxime voluntarily signed a waiver of rights form. In the discussion that

followed the investigator did most of the talking. It was explained to Maxime that

he was under arrest for robbery and murder, after which the investigator reviewed

the evidence against him including the fact that several witnesses were



       3
         In reviewing the denial of a motion to suppress, this Court examines findings of fact for
clear error, and the application of law to those facts de novo. United States v. Goings, 573 F.3d
1141, 1142 (11th Cir. 2009) (quoting United States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir.
2008)).

                                                6
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cooperating and were then being interviewed concerning their knowledge of the

crime. One of the witnesses mentioned was Zarita Gaitan, Maxime’s girlfriend

and the mother of his three year old daughter. At that point Maxime interrupted

and asked the investigator to “prove it.” The investigator left the room and

returned a few minutes later to inform Maxime that Gaitan was still being

questioned and was not available to come to Maxime’s interview room. Maxime

then declared “I want a lawyer.” At that point the investigator terminated the

conversation and left the interview room telling Maxime to knock on the door if

he wanted anything.

      A few minutes later, Maxime rapped on the door and asked to be taken to

the restroom. On his way back to the interview room after using the restroom

Maxime told the investigator that he had changed his mind and would answer

questions if he could first talk to his girlfriend, Gaitan. The investigator reminded

him that he had invoked his right to counsel and that the interview was over, but

Maxime reiterated that he had changed his mind so long as he was permitted to

speak to Gaitan before resuming his interview. After making an inquiry, the

investigator learned that Gaitan was still being questioned and, during the delay,

food was provided to Maxime. It was then determined that Gaitan was willing to

talk to Maxime, and she was brought into Maxime’s interview room where the two

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conversed in the presence of the officers. During their conversation, Gaitan

encouraged Maxime not “to make it hard on yourself” because “they know what

happened.”4 Afterward, Maxime expressed his willingness to resume his

interview and was again cautioned concerning his Miranda rights. He then made a

full confession which was admitted in evidence at his trial.

       Relying upon Montejo v. Louisiana, 556 U.S. 778, 129 S. Ct. 2079 (2009)

and Maryland v. Shatzer               U.S.           , 130 S. Ct. 1213 (2010), Maxime

argues that any statement made by a person in custody, after he has invoked his

right to counsel, is presumed to be involuntary even where the suspect executes a

waiver and his statement would otherwise be considered voluntary under

traditional standards. From that correct legal premise Maxime then argues –

without any supporting authority – that the presumption of involuntariness in his

case was not overcome by the Government because his consent to continue his

interview with the investigator after he had previously requested counsel was

“conditional at best.” We disagree.

       The rule governing this case is the one announced in Edwards v. Arizona.

The court made it clear in Edwards that once an accused has invoked the right to



       4
       There is no evidence that Gaitan was instructed by the investigators, or coached in any
way, concerning what she should say to Maxime during their meeting.

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counsel during custodial interrogation, a subsequent waiver of that right cannot be

established by simply showing that the accused freely responded to additional

questions, even if he has once again been cautioned under Miranda before doing

so, “unless the accused himself initiates further communication, exchanges, or

conversations with the police.” 451 U.S. at 485, 101 S. Ct. at 1885. See also

Henderson v. Singletary, 968 F.2d 1070, 1075 (11th Cir. 1992) (“This court’s

precedents clearly hold that where a suspect changes his mind with regard to

giving a confession to the police – even after an invocation of the right to counsel

– the confession is admissible.”). It is true that Maxime established a condition to

his willingness to forego his earlier request for a lawyer, but the important point

here is that the condition was one he established, not the investigating officers. It

was not a bargain they offered; it was one that Maxime alone proposed, and there

is no suggestion that Gaitan was acting as a pawn of the investigating officers in

conducting the conversation she then had with Maxime. There was no error in

denying the motion to suppress. Maxime clearly revoked of his own volition his

earlier request for a lawyer, and his subsequent confession was knowingly and

voluntarily given in every respect.




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       B.      The Batson-J.E.B. Issue.5 During selection of the jury, Maxime’s

counsel raised objections to the exercise of two peremptory challenges by the

United States on the ground that they were prompted by impermissible

consideration of race and/or gender.

       It appears that the prosecutor’s first three peremptory challenges were

exercised to excuse female African-American jurors.6 The fourth challenge was

also directed against a female African-American who stated during her voir dire

examination that she had an aunt who was employed in the Internal Affairs

Division of the Miami Gardens Police Department. When called upon for an

explanation of the basis of his peremptory challenge, the prosecutor stated:

               I would just point out that she has an internal affairs –
               somebody in internal affairs working in internal affairs, a
               family member and I’m not exactly psyched about the
               kind of stories that she might be hearing with that kind of
               family member so I’d like her off the jury, I would like
               the next jurors frankly better as well so...




       5
         The district court’s credibility finding and ultimate ruling on Batson issues is reviewed
under a clearly erroneous standard, and the trial court’s determination is entitled to great
deference. Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1207-08 (2008); Rice v.
Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 974 (2006); United States v. Hill, 643 F.3d 807, 837-
38 (11th Cir. 2011).
       6
         The record contains defense counsel’s undisputed assertion that the subject jurors were
all African-American. Their gender can only be surmised from their given names; the record is
uncertain on this point.

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                   THE COURT: All right. I think that’s a race
             neutral reason.

      Later on, during the seating of alternate jurors at the end of the jury

selection process, defense counsel raised another Batson challenge to the

peremptory excusal by the Government of an African-American female who had

previously served on a jury that had not reached a verdict:

                   THE COURT:           All right. Do you want to give
             me a reason?

                    [THE PROSECUTOR]: She was on a jury trial
             for drugs with no verdict, and I liked juror number 41
             better and she’s a general manager in South Miami, 20
             years married with two kids and I liked 41 better than 40.
             And that no verdict frankly scared me.

                    THE COURT;           I think there are plenty of
             African-Americans on the jury panel, and from my
             recollection, I think – I believe that’s a race neutral
             reason.

      In Batson v. Kentucky, the Supreme Court held that the Equal Protection

Clause of the Constitution forbids a prosecutor from striking potential jurors

solely on account of their race. 476 U.S. at 86, 106 S. Ct. at 1717. In J.E.B. v.

Alabama, ex rel, T.B., the Supreme Court held that peremptory challenges based

on gender are also constitutionally impermissible. 511 U.S. at 143-45, 114 S. Ct.

at 1429-30. In deciding Batson and/or J.E.B. issues, this court has consistently



                                          11
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followed the three step approach prescribed by Batson. First, the district court

(and this Court on appellate review) must determine whether the objecting party

has made a prima facie showing of purposeful discrimination on the basis of race

or gender in the exercise of a peremptory challenge by the other party. Second, if

a prima facie case is established the party exercising the disputed challenge must

come forward with a race or gender neutral explanation. Third, the court must

then determine whether the explanation given is a pretextual justification for

purposeful discrimination. E.g., United States v. Gamory, 635 F.3d 480, 495 (11th

Cir. 2011); United States v. Walker, 490 F.3d 1282, 1291 (11th Cir. 2007); United

States v. Ochoa-Vasquez, 428 F.3d 1015, 1038-39 (11th Cir. 2005).

      Normally, in the absence of overt and blatant discrimination, to establish a

prima facie basis for a Batson - J.E.B. objection, it is necessary for the objector to

demonstrate a pattern of conduct from which a discriminatory intent may be

inferred. It is improper to require an explanation of a peremptory challenge – and

if one has been given it is unnecessary to examine it – in the absence of a prima

facie case. Central Alabama Fair Housing Center, Inc. v. Lowder Realty Co., Inc.,

236 F.3d 629, 636 (11th Cir. 2000); United States v. Stewart, 65 F.3d 918, 924-25

(11th Cir. 1995). On the other hand, where the district court has called for and has

ruled upon an explanation of the basis for a disputed peremptory challenge, as

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here, we have held that any preliminary issue about the prima facie showing has

become moot. United States v. Gamory, supra, 635 F.3d at 495-96; United States

v. Edouard, 485 F.3d 1324, 1342-43 (11th Cir. 2007). See also, Hernandez v.

New York, 500 U.S. 352, 358, 111 S. Ct. 1859, 1866 (1991) (plurality opinion).

      We will therefore proceed directly to an evaluation of the sufficiency of the

prosecutor’s explanations for his disputed challenges as given to the district court.

In so doing we are mindful that the explanations provided by the prosecutor need

not be persuasive. United States v. Novaton, 271 F.3d 968, 1002 (11th Cir. 2001).

It is only required that the explanations be credible in the sense that they are not

pretextual. United States v. Edouard, supra, 485 F.3d at 1342. See also United

States v. Walker, supra, 490 F.3d at 1293 (“Under Batson, almost any plausible

reason can satisfy the striking party’s burden, as long as the reason is race or

gender neutral.”).

      Here, the race and gender neutral reasons given by the prosecutor were at

least plausible, if not persuasive, and they were grounded in the record in the form

of the jurors’ responses on voir dire. It follows that the district court’s acceptance

of those explanations was not clearly erroneous, especially since Maxime has not

shown that the racial and gender composition of the jury reflected a




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disproportionate shortfall of African-American women.7 See United States v.

Ochoa-Vasquez, supra, 428 F.3d at 1038-43; Cochran v. Herring, 43 F.3d 1404,

1412 (11th Cir. 1995); and United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir.

1995) (“Although the presence of African-American jurors does not dispose of an

allegation of race-based peremptory challenges, it is a significant factor tending to

prove the paucity of the claim.”).

       C.      The Fed. R. Evid. 404(b) Issue. Before Maxime’s trial the

Government gave notice pursuant to Fed. R. Evid. 404(b)(2)(A) that it intended to

offer evidence at trial under Fed. R. Evid. 404(b)(2) that Maxime had participated

in two prior robberies at the Westland Mall and the Sawgrass Mall, respectively.

       During trial, over Maxime’s objection (but with an accompanying limiting

instruction to the jury), both Ritchie and Thomas testified that Maxime and Carter

had successfully robbed an armored truck guard at the Westland Mall on May 5,

2008, during which a shot was fired at Carter by the guard; and Thomas testified




       7
         It can be inferred from the record that the jury consisted of seven women and five men,
and the prosecution exercised only 5 of its 6 peremptory challenges. This tends to undermine the
claim of gender discrimination. The number of African-Americans on the jury cannot be
determined on this record, but the district judge remarked in passing on Maxime’s second Batson
challenge that “I think there are plenty of African-Americans on the jury panel . . . .” It was
Maxime’s burden to establish a complete record in support of his claims under Batson and
J.E.B., and this record deficiency alone could be cited as a fatal flaw in those claims. See United
States v. Gamory, supra, 635 F.3d at 494, n. 16.

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about Maxime’s participating with Carter in another similar robbery some months

earlier at the Sawgrass Mall.

      Maxime argues that this evidence of the other robberies should have been

excluded under Fed. R. Evid. 404(b)(1). The Government responds that the

evidence was properly admitted under Fed. R. Evid. 404(b)(2).8

      This Court has held that a three step test is applied in determining the

admission of evidence of other crimes under Fed. R. Evid. 404(b)(2). First, the

evidence must be relevant to an issue other than the defendant’s character.

Second, there must be sufficient proof that the defendant committed the other

crime. Third, the evidence must possess probative value that is not substantially



      8
          Federal Rule of Evidence 404(b)(1) and (2) provides:

                Rule 404. Character Evidence; Crimes or Other Acts

                                      ****

                (b) Crimes, Wrongs, or Other Acts.

                        (1) Prohibited Uses. Evidence of a crime, wrong, or other
                act is not admissible to prove a person’s character in order to show
                that on a particular occasion the person acted in accordance with
                the character.

                       (2) Permitted Uses; Notice in a Criminal Case. This
                evidence may be admissible for another purpose, such as proving
                motive, opportunity, intent, preparation, plan, knowledge, identity,
                absence of mistake, or lack of accident. . . .


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outweighed by undue prejudice. United States v. Jernigan, 341 F.3d 1273, 1280

(11th Cir. 2003) (quoting United States v. Miller, 959 F.2d 1535, 1538 (11th Cir.

1992) (en banc)) (footnote and internal citations omitted).

      With respect to the last step in this analysis – which forms the basis of

Maxime’s argument on appeal – we have held that the district court should engage

in a common sense assessment of all of the circumstances of the case including

prosecutorial need in relation to the theory of defense, similarity of the other crime

to the charged offense, temporal proximity of the two offenses, and whether the

other crime has any inflammatory aspects not also present in the charged offense.

United States v. Brown, 587 F.3d 1082, 1091 (11th Cir. 2009).

      Maxime argues that in his opening statement to the jury he “essentially”

conceded his guilt of the conspiracy offense, and that he focused his defense on

the substantive crime by asserting that he was not guilty of the robbery or the

killing of Carlos Alvarado. From this premise Maxime contends that the evidence

of the other robberies had no probative value outweighing its prejudicial effect.

The Government responds that Maxime’s plea of not guilty placed in issue his

knowledge and intent; and, further, that the other robberies in which Maxime had

participated were temporally proximate and almost identical in circumstance with

no inflammatory features not also present in the commission of the charged

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offenses. Moreover, the fact that Maxime’s theory of defense was to “essentially”

concede the conspiracy charge and to argue that Carter – not him – was solely

responsible for shooting Alvarado, in no way diminishes the probative value of the

earlier robberies. On the contrary, that theory of defense arguably enhances the

probative value of the prior robberies in the sense that the circumstances of those

crimes, including the shot fired during the Westland Mall robbery, served to put

Maxime on notice and supplied him with knowledge of the high probability that a

guard would be shot during the Dadeland Mall offense.

      We review evidentiary rulings under Fed. R. Evid. 404(b) for an abuse of

discretion. United States v. Brown, supra, 587 F.3d at 1091. There was no abuse

of discretion in the admission of the Rule 404(b) evidence in this case.

      D.     Lack of Probable Cause for Arrest. The affidavit submitted in

support of the criminal complaint against Carter and Maxime consisted of two

core elements: (1) the eyewitness identifications of the two suspects based upon

the photo spreads shown to the witnesses present at the scene of the robbery and

murder; and (2) the cell phone records that placed Carter and Maxime in the area

of the Dadeland Mall conversing with each other at the time of the crime.

      On this appeal, Maxime makes no persuasive argument that the affidavit

was insufficient to establish probable cause for the issuance of a warrant for his

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arrest. Rather, his principal argument is that he should have received an

evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674

(1978), in connection with his motion to suppress. We find, however, that his

motion fell far short of the mark required by Franks as a precondition to such a

hearing.9

       In an effort to get a Franks hearing, Maxime’s motion in the district court

first asserted:

               [T]he complaint also established that there were
               discrepancies in the witness statements and descriptions,
               as well as known mistakes in identification. Absent from
               the complaint’s critical section attempting to establish
               the identity of the Defendant was information regarding
               the strength of the witnesses identification, how many
               witnesses failed to identify the Defendant, or
               misidentified him, and how the Defendant became a
               suspect. The result necessarily called into question the
               conclusions of the two witnesses who picked the
               Defendant out of a photo display.

Then, turning to the cell phone records, the motion made the point that there was

no direct evidence supporting the “recklessly false” conclusion stated in the


       9
         Though presented with the issue on at least three prior occasions, this court has not
settled on the appropriate standard of review of a district court’s denial of a Franks hearing.
United States v. Gamory, supra, 635 F.3d at 490, n 13; United States v. Kapordelis, 569 F.3d
1291, 1308 (11th Cir. 2009); United States v. Arbolaez 450 F.3d 1283, 1293 (11th Cir. 2006).
We found in each of those cases that the ruling of the district court passed de novo review – the
most exacting standard – so it was unnecessary to decide whether a lesser standard might be
more appropriate. We follow the same course here.

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affidavits that Maxime was the individual actually using the cell phone (registered

in his name) on the day of the robbery.

       In Franks the court held:

               There is, of course a presumption of validity with respect
               to the affidavit supporting the search warrant. To
               mandate an evidentiary hearing, the challenger’s attack
               must be more than conclusory and must be supported by
               more than a mere desire to cross-examine. There must
               be allegations of deliberate falsehood or of reckless
               disregard for the truth, and those allegations must be
               accompanied by an offer of proof. They should point out
               specifically the portion of the warrant affidavit that is
               claimed to be false; and they should be accompanied by
               a statement of supporting reasons. Affidavits or sworn
               or otherwise reliable statements of witnesses should be
               furnished, or their absence satisfactorily explained.
               Allegations of negligence or innocent mistake are
               insufficient.

438 U.S. at 171, 98 S. Ct. 2684. See also United States v. Arbolaez, 450 F.3d

1283, 1293 (11th Cir. 2006).

       The unsupported statements made in Maxime’s motion to suppress were

wholly insufficient to meet the stringent requirements of Franks, and there was no

error in denying a hearing to contest the probable cause affidavit.10




       10
         Maxime argues for the first time on this appeal that the affidavit was also deficient
because it did not explain what legal process was followed by law enforcement in obtaining the
cell phone records in the first place. This does not suggest that the affidavit was false or reckless
in any way, and it does not bolster the application under Franks. Furthermore, “we have
repeatedly held that <an issue not raised in the district court and raised for the first time in an
appeal will not be considered in this court.’” Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir.
1994), (quoting Depree v. Thomas, 946 F.2d 784, 793 (11th Cir. 1991)).

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         E.    Reasonableness of Sentence. We review the reasonableness of a

sentence under a deferential abuse of discretion standard. Gall v. United States,

552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). Applying that standard we will

affirm the sentence “unless we find that the district court has made a clear error of

judgment.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en

banc).

         Conducting review of a sentence is a two step process. We first examine

whether the sentence was procedurally reasonable – that the district court properly

calculated the Sentencing Guidelines range, considered the factors enumerated in

18 U.S.C. § 3553(a), made no clearly erroneous findings of fact impacting the

sentencing decision, and adequately explained the chosen sentence. Gall, 552

U.S. at 51, 128 S.Ct. at 597. We then consider the substantive reasonableness of

the sentence. The district court is required by § 3553(a) to impose a sentence that

is sufficient, but not greater than necessary, to meet the objectives of subsection

(a)(2) of the statute. We determine substantive reasonableness, therefore, by

examining the record as a whole in light of the § 3553(a)(2) factors, recognizing

that, ordinarily, a sentence within the applicable Sentencing Guidelines range will

be deemed to be a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008).




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             Case: 10-15345     Date Filed: 07/24/2012   Page: 21 of 21

      Maxime does not challenge the procedural reasonableness of his sentence.

There was no objection to the presentence report or to the district court’s

determination under the Sentencing Guidelines that Maxime was subject to the

advisory term of commitment prescribed for Offense Level 43, Criminal History

Category III, the highest level on the sentencing table specifying a term of life

imprisonment. Despite the fact that his life sentence was the properly calculated

Sentencing Guidelines sentence, Maxime argues that it was substantively

unreasonable because he received the same maximum punishment imposed upon

Carter, the shooter, even though he, Maxime, was less culpable.

      The argument is unpersuasive. It fails to recognize that the crimes of

conviction were among the most serious – if not the most serious – that one could

commit. It follows, as demonstrated by the Guidelines Sentencing table extending

no higher than Offense Level 43 at which life imprisonment is the advisory

sentence, that the same maximum punishment for two or more co-offenders will be

appropriate in some cases at that level of magnitude where multiple actors of

varying culpability are involved in the commission of the same offense. This is

such a case, and there was no abuse of discretion on the part of the district court in

imposing Maxime’s sentence of life imprisonment.

      The judgment and sentences of the district court are in all respects

AFFIRMED.



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