                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4143


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BENJAMIN C. THOMPKINS, JR., a/k/a Benjamin Thompkins, a/k/a
Benjie,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:08-cr-00339-REP-1)


Submitted:   April 16, 2010                     Decided:   May 6, 2010


Before AGEE and    DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur,
Georgia, for Appellant. Dana J. Boente, United States Attorney,
Angela Mastandrea-Miller, Jessica A. Brumberg, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Benjamin     C.    Thompkins,        Jr.,     was   convicted       of

possession    with   intent   to    distribute   fifty    grams   or    more   of

cocaine base, 21 U.S.C. § 841(a) (2006) (Count One); possession

of a firearm in furtherance of a drug trafficking crime, 18

U.S.C. § 924(c) (2006) (Count Two); possession of a firearm and

ammunition by a convicted felon, 18 U.S.C. § 922(g)(1) (2006)

(Count Three); and manufacturing and possessing with intent to

distribute marijuana, 21 U.S.C. § 841 (2006) (Count Four).                      He

received     an   aggregate   sentence     of    300     months   in    prison.

Thompkins now appeals his convictions.           We affirm.



                                       I

           Prior to trial, Thompkins moved to suppress evidence

seized from his residence pursuant to a search warrant.                        The

court   determined    that    the    affidavit     supporting     the    search

warrant established probable cause and that, even if it did not,

the good faith exception to the warrant requirement applied.

Thompkins contends on appeal that these rulings were in error.

           “In assessing a trial court’s decision on a motion to

suppress, we review the court’s factual findings for clear error

and its legal determinations de novo.”                 United States v. Day,

591 F.3d 679, 682 (4th Cir. 2010).          We view the evidence in the

light most favorable to the Government, the prevailing party

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below.        See United States v. Matthews, 591 F.3d 230, 234 (4th

Cir. 2009).

               The Fourth Amendment prohibits “unreasonable searches

and seizures.”           U.S. const. amend. IV.              Further, “no warrants

shall    issue,      but    upon    probable        cause    supported       by    oath    or

affirmation,        and     particularly          describing       the   place      to     be

searched, and the persons or things to be seized.”                                Id.      The

magistrate’s task in deciding whether to issue a search warrant

“is simply to make a practical, common-sense decision,” based on

the    totality     of     the   circumstances,       whether       “there    is    a     fair

probability that contraband or evidence of a crime will be found

in a particular place.”               Illinois v. Gates, 462 U.S. 213, 238

(1983).

               In reviewing the validity of a search warrant, “the

duty     of    a   reviewing       court   is       simply    to    ensure        that    the

magistrate had a substantial basis for . . . conclud[ing] that

probable       cause       existed.”          Id.    (internal       quotation           marks

omitted).          The    magistrate’s     probable         cause    determination         is

entitled to “great deference.”                    United States v. Chandia, 514

F.3d 365, 373 (4th Cir. 2008).

               Here,       the     district       court      properly        denied       the

suppression motion based on its determination that the affidavit

contained enough information to establish probable cause that

evidence of marijuana cultivation would be found at Thompkins’

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residence.           DEA     Special     Agent      Bertsch,       who     had       extensive

experience       investigating         drug       trafficking,       applied         for   the

warrant.        In     his    affidavit,      he    recited    that       a     confidential

informant,       who    had    provided    reliable       information           in    previous

investigations, had reported that “BJ” had made six calls to a

hydroponics store, requesting prices for products typically used

to cultivate marijuana.                The calls came from 13011 Five Forks

Road, Benjamin Thompkins’ residence.                      Thompkins had previously

been    served    a    summons    at     that      address    in    connection         with   a

cocaine    investigation.           BJ    had      also   visited         the      hydroponics

store     and     purchased       products         commonly        used       to     cultivate

marijuana.

              The affidavit further stated that Thompkins’ residence

had used an average of 3008 kilowatt hours of power during each

billing cycle between December 2007 and May 2008.                                  During the

same time period, a significantly larger neighboring residence

had used an average of 2092 kilowatt hours per cycle, and a

comparably sized residence had used an average of 1190 kilowatt

hours per cycle.             Agent Bertsch stated that, in his experience,

this unusually large consumption of electricity was consistent

with    the     interior       cultivation         of   marijuana.            Additionally,

Thompkins’ girlfriend had inquired about how to reset a digital

timer of the sort that is often used in the cultivation of

marijuana.        Finally, employment records showed that Thompkins

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had no reported income since 2003, and Agent Bertsch stated that

drug dealers typically do not report illegal income.                          Based on

the totality of the circumstances, we conclude that there was a

substantial basis for the magistrate judge’s finding of probable

cause.

             Even    if    the     affidavit      did    not    establish     probable

cause, rendering the warrant deficient, the good faith exception

to the warrant requirement would apply in this case, as the

district court found.            In United States v. Leon, 468 U.S. 897

(1984),   the      Supreme    Court    held      that    evidence      obtained    from

execution of a defective search warrant is admissible under this

exception     if    the      officer’s      reliance       on    the     warrant    was

objectively reasonable.             Id. at 922-23.             Leon identified four

situations in which an officer’s reliance on a warrant could not

be    objectively      reasonable,          including      where       the    affidavit

supporting the warrant is “so lacking in indicia of probable

cause as to render official belief in its existence entirely

unreasonable.”        Id. at 923.           Although Thompkins contends that

his   case    falls       within     this       exception,      characterizing      the

affidavit as “bare bones,” we disagree.                      To the contrary, the

affidavit is replete with facts obtained from numerous sources,

including:      a     reliable        confidential           informant;        official

telephone,    power       company,    sheriff’s         department,     and   Virginia



                                            5
Employment Commission records; and Agent Bertsch’s own extensive

experience investigating similar offenses.



                                              II

             The     affidavit         supporting        the    warrant        referred      to

information        gleaned      from    power      use    records       subpoenaed        from

Dominion Virginia Power (Dominion).                      The day before trial was

scheduled to begin, Thompkins requested a continuance so that he

could   ascertain         whether      a     subpoena     in     fact    was     served      on

Dominion     as    represented         in    the   affidavit.           He     stated     that

Dominion     had    not    produced         certain      documents      requested       in   a

subpoena duces tecum that had recently been served on Dominion’s

registered agent.          Those documents, he contended, would tend to

establish whether the affidavit had been falsified.

             During a hearing on the motion, the Assistant United

States Attorney informed the court that the Drug Enforcement

Agency had issued administrative subpoenas to Dominion for the

three   residences        identified         in    the    affidavit.           All   records

received pursuant to that request were provided to the defense,

as    were    copies       of     the       subpoenas.           Thompkins’          attorney

acknowledged having received both the records and the copies of

the   subpoenas.          However,      he    told    the      court    that    someone      in

Dominion’s legal department had informed him that a computer

search turned up no record of Dominion’s having received any

                                               6
subpoena    or    having   provided        the    records     in    question.         Thus,

counsel    questioned      whether    the        records     had    been    deliberately

falsified and whether, as a result, the affidavit was valid.

            The     district      court          denied      the         motion   for    a

continuance, finding there was no valid reason to support the

motion.     Counsel renewed the motion at trial the next day, and

the   court      again   denied      it.         Thompkins         now    questions     the

propriety of the court’s ruling.

            We review the denial of a motion for a continuance for

abuse of discretion.         United States v. Williams, 445 F.3d 724,

739 (4th Cir. 2006) “[E]ven if such an abuse is found, the

defendant must show that the error specifically prejudiced [his]

case in order to prevail.”            Id.        After reviewing the record, we

conclude    that    Thompkins     failed         to   make   the     specific     showing

required.     Most notably, he has not demonstrated that the power

usage records in question were erroneous.



                                           III

            Thompkins       contends        that       counsel       was     ineffective

because he did not move for reconsideration of the denial of the

motion to suppress or move for a new trial based on the power

records issue.       He further suggests that counsel was ineffective

for failing to file a motion for a Franks v. Delaware, 438 U.S.

134 (1978),       hearing on that issue.

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            “Claims      of   ineffective       assistance     of    counsel     are

normally   raised       before   the    district   court     via    28   [U.S.C.A.]

§ 2255 [West Supp. 2009] and are cognizable on direct appeal

only where it conclusively appears on the record that defense

counsel    did    not    provide    effective      representation.”          United

States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007); see United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997).                           Because

ineffective      assistance      does   not     conclusively       appear   on   the

record, we decline to address this claim.



                                         IV

            We therefore affirm.              We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                            AFFIRMED




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