                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4497


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JASON MARCELLUS MILLHOUSE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:11-cr-00201-RDB-1)


Submitted:   March 25, 2013                 Decided:   July 19, 2013


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard Winelander, WINELANDER & COX, P.A., Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney,
Debra L. Dwyer, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Jason Marcellus Millhouse pled guilty to one count of

possession      with    intent     to    distribute          a   controlled        dangerous

substance, in violation of 21 U.S.C. § 841(a)(1) (2006), and one

count of being a convicted felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1) (2006).                         Millhouse preserved

his right to appeal the district court’s denial of his motion

for an evidentiary hearing pursuant to Franks v. Delaware, 438

U.S. 154 (1978).        Perceiving no error in that denial, we affirm.

               This court reviews de novo the legal determinations

underlying a district court’s denial of a Franks hearing, and

its factual findings for clear error.                        United States v. Allen,

631 F.3d 164, 171 (4th Cir. 2011).                        A defendant bears a heavy

burden    to    establish    the    need      for     a    Franks       hearing.      United

States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994).                            In order to

meet     this     burden,    a     defendant          must       make     a    “substantial

preliminary       showing”   that       the       affiant     intentionally        included

false    statements      necessary       to       a   finding      of    probable     cause.

Franks, 438 U.S. at 155-56.              With a claim that the affiant made

the    affidavit       deceptive    by     omitting          facts,      the    defendant’s

“burden increases yet more.”                  United States v. Tate, 524 F.3d

449, 454 (4th Cir. 2008).                In such a case, the defendant must

show “that the facts were omitted ‘with the intent to make, or

in     reckless    disregard       of    whether          they     thereby      made,   the

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affidavit misleading.’”             Id.     (quoting United States v. Colkley,

899 F.2d 297, 300 (4th Cir. 1990)).                      A claim that the affiant

was    negligent      or    made    an    innocent      mistake    is    inadequate   to

obtain a Franks hearing.                 United States v. McKenzie-Gude, 671

F.3d 452, 462 (4th Cir. 2011).                    The preliminary showing “‘must

be more than conclusory’ and must be accompanied by a detailed

offer of proof.”           Colkley, 899 F.2d at 300 (quoting Franks, 438

U.S.    at    171).         In    addition,       consideration     of    the   omitted

information must “be such that its inclusion in the affidavit

would defeat probable cause.”               Colkley, 899 F.2d at 301.

              Here, although claiming that the affiant officer made

an intentional or reckless false statement or omission in the

affidavit in support of the search warrant, Millhouse falls far

short of making a “substantial preliminary showing” that the

claimed misconduct reflected anything more than an unintentional

clerical error.            Tate, 524 F.3d at 455.           Furthermore, we agree

with    the    district          court    that    the    alleged    misstatement      or

omission was not essential to the probable cause determination.

See Colkley, 899 F.2d at 301.                      Therefore, we find that the

district court did not err in denying Millhouse’s request for a

Franks hearing.




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           Accordingly, we affirm the judgment below.             We grant

Millhouse’s motion to file a supplemental pro se reply brief. *

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




      *
       After review of Millhouse’s reply brief              we   find    the
arguments contained therein to be without merit.



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