                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14892         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 8, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                              D.C. Docket No. 4:10-cr-10002-KMM-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellee,

                                               versus

SHAWN A. BAILEY,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

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

                                            (July 8, 2011)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

         Shawn Bailey appeals his convictions and 240-month total sentence for

distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); possession with
intent to distribute cocaine, in violation of § 841(a)(1); and possession of a firearm

and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Bailey raises three issues on appeal. First, he argues that the district court erred

when it denied his motion to suppress the evidence seized from his apartment for

lack of probable cause because the search warrant affidavit contained

misstatements that were made intentionally or with reckless disregard, and the

affidavit’s remaining content did not support a finding of probable cause. Second,

Bailey argues that the district court erred in determining that his prior conviction

for escape was a crime of violence, and he was therefore wrongly sentenced as a

career offender. Finally, Bailey argues that his 240-month sentence was

unreasonable because the district court did not give sufficient justification for the

sentence, and the sentence was greater than necessary to comply with the goals of

sentencing.

                                           I.

      “Review of a district court’s denial of a motion to suppress is a mixed

question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th

Cir. 2007). We review the district court’s factual findings for clear error and its

interpretation and application of the law de novo. Id. We construe all facts in the

light most favorable to the prevailing party in the district court. Id.

                                           2
      For a search warrant to be valid, it must be supported by probable cause.

U.S. CONST., amend. IV. “Probable cause to support a search warrant exists when

the totality of the circumstances allow a conclusion that there is a fair probability

of finding contraband or evidence at a particular location.” United States v.

Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). Accordingly, the search

warrant affidavit must “state facts sufficient to justify a conclusion that evidence

or contraband will probably be found at the premises to be searched.” United

States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002) (internal quotations

omitted). More specifically, the affidavit should establish “a connection between

the defendant and the residence to be searched and a link between the residence

and any criminal activity.” Id.

      Search warrant affidavits are presumptively valid. Franks v. Delaware, 438

U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978). A search warrant must be voided and

the fruits of the search excluded, however, if the search warrant affidavit

contained a false statement made knowingly and intentionally or with reckless

disregard for the truth, and the affidavit’s remaining content does not establish

probable cause. Id. at 155-56, 98 S.Ct. at 2676. Nevertheless, a warrant is valid

“when material that is the subject of the alleged falsity or reckless disregard is set

to one side, [and] there remains sufficient content in the warrant affidavit to

                                           3
support a finding of probable cause.” Id. at 171-72, 98 S.Ct. at 2684. Thus, a

defendant must show (1) “that the alleged misrepresentations or omissions were

knowingly or recklessly made” and (2) “that the result of excluding the alleged

misrepresentations and including the alleged omissions would have been a lack of

probable cause for issuance of the warrants.” United States v. Novaton, 271

F.3d 968, 986-87 (11th Cir. 2001).

      The district court did not err in denying Bailey’s motion to suppress. Even

if the contested statements in the search warrant affidavit are incorrect, Bailey has

failed to provide proof that those misstatements were made intentionally or with

reckless disregard. Absent this proof, Bailey has not shown that the search

warrant lacked probable cause. Therefore, the district court was correct in denying

Bailey’s motion.

                                         II.

      We review de novo “whether a defendant’s prior conviction qualifies as a

‘crime of violence’ under the Sentencing Guidelines.” United States v. Harris, 586

F.3d 1283, 1284 (11th Cir. 2009). Cases addressing violent felonies under the

Armed Career Criminal Act (ACCA) are instructive in determining crimes of

violence under U.S.S.G. § 4B1.2, because the definitions for both terms are

virtually identical. Id. at 1285.

                                          4
      To determine if a prior conviction is a qualifying offense for sentencing

enhancement purposes, we generally apply a categorical approach, looking no

further than the statute and judgment of conviction. United States v. Palomino

Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). However, when the law under

which a defendant has been convicted contains different statutory phrases, then the

judgment is ambiguous, and we apply a modified categorical approach. Id. “Under

this approach, a court may determine which statutory phrase was the basis for the

conviction by consulting a narrow universe of ‘Shepard documents’ that includes

any charging documents, the written plea agreement, the transcript of the plea

colloquy, and any explicit factual finding by the trial judge to which the defendant

assented. Id. at 1337.

      Subsequent to the submission of the parties’ briefs, we issued a decision

directly dealing with Bailey’s career offender issue. In United States v. Proch,

637 F.3d 1262 (11th Cir. 2011), we dealt with whether an escape conviction under

FLA. STAT. § 944.40, the same statute that Bailey was convicted under, qualified as

a predicate offense for armed career criminal classification. We first looked at the

charging document, which stated that the defendant “escaped while in lawful

custody of the county jail or while being transported to or from there.” Proch, 637

F.3d at 1266. We concluded that this information indicated that the defendant had

                                         5
been apprehended and was either at the jail or being transported to it when he

attempted to escape. Id.

      We then looked to whether the escape conviction constituted a violent

felony in order for it to be a qualifying offense. Id. We looked to the Florida

statute, which states: “Any prisoner confined in any prison, jail, private

correctional facility, road camp, or other penal institution, . . . working upon the

public roads, or being transported to or from a place of confinement who escapes

or attempts to escape from such confinement commits a felony of the second

degree . . . .” FLA. STAT. § 944.40. We determined that there were several separate

crimes enumerated in § 944.40, including: “(1) escape from jail; (2) escape from

custody while being transported to or from jail; (3) escape from a road camp;

(4) escape from custody while working upon the public roads; etc.” Proch, 637

F.3d at 1267. We then concluded that the charging document made it clear that

the predicate crime was either escape from jail or escape from custody while being

transported to or from jail. Id. at 1267-68. After looking at prior decisions from

this Circuit and other circuits, we held that, under the Florida statute, escape from

jail, or from custody while being transported to or from jail, is a violent felony

under the ACCA. Id. at 1268-69.




                                           6
      Based on the charging document, Bailey’s conviction falls under one of the

two categories of the Florida statute dealt with in Proch. Because we have already

held that an escape conviction under one of those two categories is a crime of

violence, we are bound to hold that Bailey’s escape conviction is a crime of

violence. Therefore, the district court did not err in sentencing him as a career

offender.

                                         III.

      “[A] sentence may be reviewed for procedural or substantive

unreasonableness.” United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir. 2008).

We review both the procedural and substantive reasonableness of a sentence for an

abuse of discretion. Id. at 1273 n.25.

      In reviewing whether a sentence is reasonable, we must ensure, first, that

the district court did not commit a significant procedural error, “such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “[T]he

sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

                                          7
legal decisionmaking authority.” United States v. Agbai, 497 F.3d 1226, 1230

(11th Cir. 2007) (citation and quotation omitted). However, the district court need

not discuss or explicitly state on the record each § 3553(a) factor. United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). “Rather, an acknowledgment by the

district judge that he or she has considered the § 3553(a) factors will suffice.”

United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007).      We must then

determine whether the sentence is substantively reasonable in light of the§ 3553(a)

factors. Gall, 552 U.S. at 51, 128 S. Ct. at 597. The sentencing court shall impose

a sentence “sufficient, but not greater than necessary” to comply with the purposes

of sentencing set forth in § 3553(a)(2), namely, to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense, deter

criminal conduct, protect the public from further criminal conduct by the

defendant, and provide the defendant with needed educational training, vocational

training, medical care, or other correctional treatment in the most effective

manner. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must

also consider the nature and circumstances of the offense, the history and

characteristics of the defendant, the kinds of sentences available, the applicable

guideline range, the pertinent policy statements of the Sentencing Commission, the




                                          8
need to avoid unwarranted sentencing disparities, and the need to provide

restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).

      “The review for substantive unreasonableness involves examining the

totality of the circumstances, including an inquiry into whether the statutory

factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). “[T]he party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in the light of

both [the] record and the factors in section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). “The weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court.” United

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotations and alteration

omitted). We vacate a sentence only if “left with the definite and firm conviction

that the district court committed a clear error of judgment in weighing the

§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160,

1190 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011) (quotation

omitted).

      “[T]here is a range of reasonable sentences from which the district court

may choose.” Talley, 431 F.3d at 788. “[W]hen the district court imposes a

                                          9
sentence within the advisory Guidelines range, we ordinarily will expect that

choice to be a reasonable one.” Id. Also, the reasonableness of a sentence may be

indicated when the sentence imposed was well below the statutory maximum

sentence. See Gonzalez, 550 F.3d at 1324.

      Bailey’s sentence was both procedurally and substantively reasonable. The

district court’s statement that it considered the statements of both parties, the

presentence investigation report, the advisory guidelines, and the § 3553(a) factors

provided sufficient explanation as to why it chose the sentence that it imposed,

and was, therefore, procedurally reasonable. Additionally, because Bailey’s

sentence was within the guidelines range and well below the statutory maximum

sentence, we expect it to be reasonable. Furthermore, Bailey’s history and

characteristic as a career offender, and the deterrence effect the sentence will have

on future criminal conduct, show that the sentence was not greater than necessary,

and therefore was substantively reasonable. Because Bailey’s sentence was

procedurally and substantively reasonable, the district court did not abuse its

discretion in sentencing Bailey to 240 months’ imprisonment.

      AFFIRMED.1




      1
             Bailey’s request for oral argument is denied.

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