                                                              [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                        MARCH 10, 2008
                                                      THOMAS K. KAHN
                                No. 07-11396
                                                           CLERK
                             Non-Argument Calendar
                           ________________________

                       D. C. Docket No. 06-00039-CR-CG

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

STEPHEN HARMON RICHARDSON,

                                                  Defendant-Appellant.
                          _________________________

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

                                 (March 10, 2008)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

      Appellant, a convicted felon, was indicted in three counts for violations of

18 U.S.C. § 922(g)(1): Count One, for possession of six firearms on February 19,
2005; Count Two, for possession of two firearms on February 22, 2005; Count

Three, for possession of ammunition on February 22, 2005. After the district court

denied his motion to suppress the evidence (including the firearms and ammunition

referred to in the indictment) found in his residence (a house trailer) pursuant to the

execution of search warrants on February 19 and 22, 2005, appellant pled guilty to

all three counts, and the court sentenced him to concurrent sentences of life

imprisonment. He now appeals his convictions and his sentences. He seeks the

vacation of his convictions on the ground that the district court abused its

discretion when it denied him an evidentiary hearing on his motion to suppress;

had he been accorded an evidentiary hearing, he submits, the court would have

suppressed the evidence found in his residence. He seeks the vacation of his

sentences on two grounds: the court erred (1) in treating him as an armed criminal

offender, and (2) in its findings on the issue of relevant conduct. We consider first

appellant’s challenge to his convictions.

      The allegations of the three counts of the indictment were based on firearms

and ammunition the Thomasville, Alabama police obtained from appellant’s

residence pursuant to search warrants issued on the strength of affidavits executed

by three juveniles and a police department investigator. The juveniles were

victims of sexual abuse perpetrated by appellant, and witnessed appellant in



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possession of the subject firearms. Appellant moved the district court to suppress

the firearms and ammunition, contending that the searches were illegal because the

information contained in the juveniles’ affidavits was false. These affidavits stated

that while the affiants were inside appellant’s residence, appellant approached

them dressed in a towel and exposing a loaded pistol, made them drink alcohol,

and had them perform oral sex, which he photographed.

      Appellant requested an evidentiary hearing so he could explore the affiants’

reliability. In response, the Government asserted that no showing of the affiants’

reliability was needed and that the affidavits contained nothing of substance that

was false. The court denied appellant’s request for an evidentiary hearing, finding

that “the operative facts [were] not in dispute” and that the reliability of

information received from the victim of a crime need not be established. And,

since appellant had not demonstrated that the allegedly false information was either

deliberately or recklessly included in the juveniles’ affidavits, the court concluded

that an evidentiary hearing focusing on the juveniles’ reliability was not called for.

      The issues before us in reviewing the district court’s denial of appellant’s

motion to suppress are whether the court’s findings of fact are clearly erroneous

and whether the court erred in applying the law to those facts. If the affidavit

presented to a judge in support of an application for a search warrant contained



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false information that was included in the affidavit either deliberately or recklessly

and was essential to the establishment of the probable cause necessary for the

issuance of the warrant, the warrant must be voided. O’Ferrell v. United States,

253 F.3d 1257, 1267 (11th Cir. 2001). An affidavit makes a sufficient showing of

probable cause if it states “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) (quotation omitted). In moving to

suppress the evidence seized pursuant to a search warrant, the defendant must

make a “substantial preliminary showing” of the grounds for voiding the warrant in

order to be entitled to an evidentiary hearing. Franks v. Delaware, 438 U.S. 154,

155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).

      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.

Id. at 171, 98 S.Ct. at 1684. Furthermore, an evidentiary hearing is not required

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



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set to one side, there remains sufficient content in the warrant affidavit to support a

finding of probable cause.” See United States v. Novaton, 271 F.3d 968, 986 (11th

Cir. 2001).

       In this case, nothing in the affidavits supporting the applications for the

search warrants indicated the need for an evidentiary hearing to explore the

affiants’ reliability. Appellant was not entitled to an evidentiary hearing because

he altogether failed to make any showing, much less a substantial showing, that the

affidavits’ assertions that affiants saw him with a firearm were false. Their

assertions were plainly sufficient to support a finding of probable cause. The

district court therefore committed no error in denying appellant’s motion to

suppress. We turn now to appellant’s challenges to his sentences.

       Appellant contends that the court should not have considered him an armed

career criminal because the Government failed to demonstrate that his prior

burglaries were generic burglaries. Section § 924(e) provides that anyone who

violates 18 U.S.C. § 922(g) and has three previous convictions for, among other

things, violent felonies shall be imprisoned no less than fifteen years. A burglary

constitutes a violent felony if it is a “generic burglary,” that is, it has “the basic

elements of unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575,



                                             5
599, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). A district court may examine

the charging document, plea agreement, plea colloquy, or “some comparable

judicial record of this information” to determine whether a prior burglary

conviction is generic or non-generic based on a guilty plea. Shepard v. United

States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005). The

district court may only look beyond the fact of conviction and the statutory

definition of the offenses in the few cases where it is impossible to determine from

the judgment or statute of conviction whether the conviction was for a violent

felony. United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007), pet. for

cert. filed, (U.S. Nov. 16, 2007) (No. 07-668).

      In Alabama, “[a] person commits the crime of burglary in the third degree if

he knowingly enters or remains unlawfully in a building with intent to commit a

crime therein.” Ala. Code § 13A-7-7(a). Although the Government did not

present any evidence showing that appellant was an armed career criminal based

on his third-degree burglary convictions, it did not need to, because the court had

such evidence before it. In particular, it could look to the statutory definition of

appellant’s prior burglary convictions. See Taylor, 489 F.3d at 1113. The

statutory definition of burglary in the third degree in Alabama is almost exactly the

same as the federal definition of a generic burglary and, thus, qualifies as a violent



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felony under § 924(e). See Ala. Code § 13A-7-7; Taylor, 495 U.S. at 598, 110

S.Ct. at 2158. Therefore, the Government did not need to present additional

evidence to show by a preponderance of the evidence that appellant’s prior

Alabama convictions for burglary in the third degree qualified as violent felonies

under § 924(e).

      Appellant contends that he only pled guilty to the charges contained in the

indictment and that the district court erred by taking testimony and making

findings concerning relevant conduct that increased his sentence . We have

established a two-step process for district courts to use in fashioning sentences.

First, the court must consult and correctly calculate the sentence range prescribed

by the Sentencing Guidelines. Second, the court must consider the factors

enumerated in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786

(11th Cir. 2005).

      As long as the court treats the Sentencing Guidelines as advisory, it does not

violate the defendant’s constitutional rights when it makes factual findings by a

preponderance of the evidence that go beyond the letter of the charges in the

indictment and the jury’s findings. United States v. Chau, 426 F.3d 1318, 1324

(11th Cir. 2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.

2005) (holding that the district court was permitted to find conduct that had been



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acquitted by the jury when determining the defendant’s sentence). Nor does the

court err in relying on the defendant’s prior convictions to enhance the sentence.

United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). A defendant with

three convictions for violent felonies who violates 18 U.S.C. § 922(g) faces a term

of imprisonment for fifteen years to life. 18 U.S.C. § 924(e)(1); United States v.

Brame, 997 F.2d 1426, 1428 (11th Cir. 1993).

      In this case, the district court treated the Sentencing Guidelines as advisory.

Appellant’s sentences of life imprisonment were within the prescribed statutory

range because the jury found that appellant had violated 18 U.S.C. § 922(g) and the

court was authorized by 18 U.S.C. § 924(e) to use his prior convictions to enhance

his sentence. See Shelton, 400 F.3d at 1329. In sum, appellant has provided us

with no basis for overturning his sentences.

      AFFIRMED.




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