                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-3904
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Joseph Wilson,                         *
                                       * [UNPUBLISHED]
            Appellant.                 *
                                  ___________

                             Submitted: April 17, 2009
                                Filed: April 30, 2009
                                 ___________

Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       Joseph Wayne “Murdock” Wilson pled guilty, under a plea agreement, to one
count of possession of firearms and ammunition by a felon. See 18 U.S.C. §§
922(g)(1), 924(a)(2), (e)(1)-(2). With a Guidelines range of 180 to 210 months, the
district court1 sentenced Wilson to 180 months’ imprisonment, the mandatory
minimum. See 18 U.S.C. § 924(e)(1). Jurisdiction being proper under 28 U.S.C. §
1291, this court affirms.


      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
      First, Wilson asserts that his prior conviction for attempted burglary is not a
“violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e). He
acknowledges that the Supreme Court found attempted burglary to be a violent felony
in James v. United States, 550 U.S. 192 (2007). According to Wilson, the Supreme
Court altered the James holding in Begay v. United States, 128 S.Ct. 1581 (2008).
Attempted burglary is not a violent felony, he concludes, because it does not typically
involve purposeful, violent, and aggressive conduct.

      The Court’s opinion in Begay cites James approvingly. See Begay, 128 S.Ct.
at 1584 (citing James and stating that “attempted burglary is a violent felony”). The
James opinion “considered only matters of degree,” whereas Begay addressed whether
crimes unlisted in § 924(e) must be “similar” to the listed ones. Id. at 1585. See
United States v. Williams, 537 F.3d 969, 972 (8th Cir. 2008) (“Begay . . . requires that
our analysis focus on whether” prior convictions “are similar in kind to the example
crimes.”). Begay does not overrule James.

      Second, Wilson argues that the district court erred by denying his request for
a hearing to challenge the search warrant, citing Franks v. Delaware, 438 U.S. 154
(1978).

      We apply a two-part test to allegations of omissions of fact in violation
      of Franks, requiring the defendant to show that the affiant omitted facts
      with the intent to make, or in reckless disregard of whether the omissions
      made, the affidavit misleading, and that the affidavit, if supplemented by
      the omitted information, could not support a finding of probable cause.

United States v. LaMorie, 100 F.3d 547, 555 (8th Cir. 1996). This court reviews the
denial of a Franks hearing for abuse of discretion. United States v. Kattaria, 553 F.3d
1171, 1177 (8th Cir. 2009) (per curiam) (en banc).




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       Wilson asserts that the warrant application omitted three material facts: (1) the
confidential informant is a cocaine user; (2) the C.I. received a shot for her knee on
the day of the interview, affecting her mental state; and (3) the C.I. was hostile
towards Wilson. Even if true, these omissions do not require a Franks hearing. There
is no evidence that police omitted the facts with the intent to make, or in reckless
disregard of whether the omissions made, the affidavit misleading. Likewise, there
is no evidence that the C.I.’s drug use or knee injection affected her ability to relay
accurate information to police. See United States v. Allen, 297 F.3d 790, 795-96 (8th
Cir. 2002) (fact that informant consumed methamphetamine was irrelevant when
officer testified that she was “lucid and coherent”). Finally, the C.I.’s identity would
have been revealed if the warrant application detailed her relationship with Wilson.
The district court did not abuse its discretion.

      The judgment is affirmed.
                      ______________________________




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