                                                                             FILED
                           NOT FOR PUBLICATION                               JUL 24 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30244

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00322-TSZ-1

  v.
                                                 MEMORANDUM *
JAMES DAVID ALLEN, II,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                  Thomas S. Zilly, Senior District Judge, Presiding

                        Argued and Submitted July 10, 2012
                               Seattle, Washington

Before: SCHROEDER, REINHARDT, and M. SMITH, Circuit Judges.

       James David Allen, II, appeals the denial of his motion to suppress

statements, the denial of his motion to suppress evidence (which includes a request

for a Franks hearing), and the sentence imposed following his conditional guilty



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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plea to Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). He

was sentenced to 60 months in prison.

      As to his statements, Allen argues that they followed the initial sweep of his

home, which occurred while Allen was standing outside and which the government

concedes was unconstitutional. The statements must therefore be suppressed,

United States v. Shetler, 665 F.3d 1150, 1157-58 (9th Cir. 2011), and Allen may

withdraw his conditional plea on remand.

      As to the tangible evidence, Allen argues that it was seized pursuant to a

warrant based on an affidavit that did not support probable case. We find that

probable cause existed on the face of the affidavit, even with Allen’s statements

excised, because the witness upon whom the affidavit relied, Jessikah Ramsey, had

first-hand knowledge of the illegal activity and her statements provided probable

cause. See United States v. Miller, 753 F.2d 1475, 1480 (9th Cir. 1985).

      We, however, grant Allen’s request for a Franks hearing. He has properly

alleged that the police knowingly or recklessly withheld material information from

the affidavit that, if included, would sufficiently undermine Ramsey’s reliability to

vitiate probable cause. Franks v. Delaware, 438 U.S. 154 (1978); United States v.

Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985), amended, 769 F.2d 1410 (9th Cir.

1985). The record shows that the officer who prepared the affidavit, Betts, knew or


                                           2
should have known that Ramsey’s pending criminal charge for making false

statements to the police was for falsely accusing Allen of criminal conduct; the

record also shows that an officer, VanderWeyst, who supplied Betts with

information regarding Ramsey for the affidavit was aware that Ramsey’s false

statements related to Allen. The officers also knew but omitted from the affidavit

various inconsistencies in Ramsey’s story: that she changed her story as to when

gunshots were fired; that she was high on methamphetamine at the time of her

interview; that she did not flee Allen’s home fearing for her life; and that she hid a

backpack filled with drug paraphernalia a short distance from Allen’s home just

before the police arrived. These omissions “suggest[] the possibility that [Ramsey]

would lie to the police to frame an innocent man [here, Allen]” United States v.

Hall, 113 F.3d 157, 160 (9th Cir. 1997), and that her most recent report regarding

Allen was not reliable. We therefore remand for a Franks hearing.

      As to sentencing, Allen argues that the enhancement for a stolen firearm,

U.S.S.G. § 2K2.1(b)(4)(A), cannot be applied to him because he had no knowledge

that the gun was stolen. The Sentencing Guidelines directly foreclose this

argument. § 2K2.1 cmt. n.8 (explaining that the enhancement “applies regardless

of whether the defendant knew or had reason to believe that the firearm was




                                           3
stolen”). Allen’s corollary challenge based on the Due Process Clause was rejected

in United States v. Goodell, 990 F.2d 497, 499-501 (9th Cir. 1993).

      REVERSED in part, and REMANDED in part.




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