                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0206n.06
                           Filed: March 28, 2006

                                          04-4254

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                     )
                                              )
       Plaintiff-Appellee,                    )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
WAVERLEY JUDD,                                )   SOUTHERN DISTRICT OF OHIO
                                              )
       Defendant-Appellant.                   )




       Before: MARTIN, NORRIS, and DAUGHTREY, Circuit Judges.


       PER CURIAM. The defendant, Waverley Judd, appeals from his conditional guilty

plea, entered on a two-count indictment that charged manufacturing marijuana and

possession with intent to distribute an unspecified amount of methylenedioxymeth-

amphetamine, known as MDMA and by the street name Ecstacy. He was sentenced to two

concurrent terms of 25 months’ incarceration and three years of supervised release. The

plea agreement that the defendant entered with the government permitted an appeal of the

district court’s denial of the defendant’s motion to suppress but purported to limit the scope

of the appeal to “the sole issue of the adverse determination” of the suppression issue.

The government therefore argues on appeal that the defendant has waived the right to
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United States v. Judd

challenge to his sentence on the basis of United States v. Booker, 543 U.S. 220 (2005).

We affirm the conviction but remand the case for re-sentencing.


                    FACTUAL AND PROCEDURAL BACKGROUND


        The investigation of Judd was initiated by tip from a confidential informant who

contacted Officer Brandon Holbrook of the Jackson Township police department and told

him that Judd “would be leaving Ohio via personal vehicle for Texas to pick up or purchase

approximately sixty pounds of marijuana” the following day. The informant also provided

Holbrook with information about Judd’s car and license plate number and told the officer

Judd resided at 211 Alton Avenue.


        The next morning a DEA task force set up surveillance at 211 Alton Avenue. The

officers followed Judd after he departed from the residence. Judd drove to two other

addresses and eventually to a Family Dollar store. The officers approached Judd as he

exited the store, stopped him, and searched his person. They found approximately $4,000

in his jacket. The officers then searched Judd’s car. At the later suppression hearing, the

government contended that Judd consented to the search, but Judd disputed this fact.

During the search of the vehicle, officers recovered what was referred to as marijuana and

cocaine residue, a box of gloves, potting soil, and baggies suitable for packaging drugs for

sale.




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United States v. Judd

       After they completed the search of the vehicle, the officers asked Judd for

permission to search the residence at 211 Alton Avenue. Judd refused to consent, saying

that although he did not own the property, he was manager of the property and had access

to it and the adjoining unit, 209 Alton Avenue. Holbrook then sought and obtained a search

warrant for 211 and 209 Alton Avenue.


       In support of his application for the warrant, Holbrook included statements of the

confidential informant as well as facts discovered during the surveillance and stop of Judd.

In addition, the affidavit contained information discovered by other law enforcement

personnel during a visit to 209/211 Alton Avenue in an attempt to make contact with anyone

there. The affiant stated:


       Upon arrival, officers found all doors were locked and received no answer at
       the door. An inspection of the trash in the dumpster in the alley directly
       behind the residence revealed marijuana residue and materials commonly
       used to pack marijuana in the trash. Officers found an open window on the
       side of the residence and detected an odor of marijuana coming from within
       the house.


The affidavit also described 211 Alton Avenue as Judd’s address.


       A federal magistrate issued warrants for 209 and 211 Alton Avenue. During the

execution of the warrant, officers found approximately 34 marijuana plants in the basement,

packing material, and other controlled substances. As a result of items seized during the

search of the residences, Judd was charged with manufacturing marijuana and possession

with intent to distribute MDMA.

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United States v. Judd

        Judd filed motions to suppress evidence from both the search of the premises at 211

Alton Avenue and that seized during the encounter outside of the Family Dollar store. With

regard to the latter, the defendant contended that the officers did not have reasonable

suspicion to believe that he was engaged in criminal activity, as required to support a Terry

stop, and that items taken from his person and from his car during the ensuing search had

been seized in violation of the Fourth Amendment. His challenge to the sufficiency of the

affidavit underlying the search warrant was based on that the fact that the confidential

informant’s reliability was not established in the affidavit and that information concerning

the evidence seized during the stop at the Family Dollar store should be redacted from the

affidavit.


        The district court granted the defendant’s motion to suppress evidence seized from

him and from his car during the initial stop, holding that the “seizure was not based on

reasonable suspicion nor on probable cause, but was based on an inarticulate hunch, an

impermissible basis.” But the court denied the motion to suppress the evidence seized in

the search of the premises at 209 and 211 Alton Avenue, finding that, even without the

informant’s statements and information from the illegal stop, the affidavit was sufficient to

support the issuance of the search warrant. The court said, “Discounting the failure to

verify the allegations of the unknown informant, the issuing magistrate was considering a

search warrant application that asserted that a person already once convicted of

distributing marijuana and once arrested for marijuana possession was now living in a



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United States v. Judd

residence that had items used in distributing marijuana in the trash behind it, and the odor

of marijuana coming from its windows.”


                                        ANALYSIS


1. The Fourth Amendment Challenge to the Conviction


       We conclude that the district court’s decision upholding the validity of the premises

search was proper. Although the confidential informant’s tip could not, alone, supply the

basis for the issuance of a search warrant, it provided information that the officers could

and did verify. A check of drivers’ license records indicated, for example, that Judd’s

address was 211 Alton Avenue, and mail addressed to him was found in a mailbox

attached to the building at that address. Inspection of trash located immediately behind the

residence revealed incriminating evidence, as did the odor emanating from inside the

building. In addition, neighbors verified that Judd had recently been seen going in and out

of both sides of the duplex. While it is true that no one had seen the defendant in the

immediate vicinity of the trash receptacle and that there was no evidence about the

postmarked date on the mail in the mailbox, we conclude that the totality of the information

in the affidavit was sufficient to establish probable cause to support the issuance of the

search warrant.      Its execution in turn resulted in evidence sufficient to support the

defendant’s guilty pleas to the offenses contained in the indictment. We therefore affirm

those convictions.



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United States v. Judd

2. The Booker Challenge to the Sentence


       The government’s argument that the terms of the plea agreement preclude our

review of the defendant’s sentence. However, it appears that the limiting language in the

agreement applied only to the defendant’s conviction and not necessarily to the

determination of his sentence. Indeed, at Judd’s sentencing hearing, the district court

acknowledged that post-Blakely developments might cause the sentencing guidelines to

be called into question, noting that in that event, “a Court of higher jurisdiction must deal

with this matter.” The district judge also advised the defendant, after imposing sentence,

that he had “the right to appeal the sentence of this Court if [he] believe[d] that the Court

has done anything improper . . . .”


       In fact, application of the guidelines as mandatory in this case was later held to be

unconstitutional in the Supreme Court’s Booker opinion, released some four months after

sentence was imposed in this case. It follows that the sentence must be vacated and the

case remanded for resentencing. On remand, the district court should review the pre-

sentence report to determine whether the calculations contained in the report would result

in a Sixth Amendment violation, given that the indictment does not specify the amount of

controlled substances for which the defendant stands convicted, and that neither the plea

agreement nor the record of the guilty plea hearing contains an admission by the defendant

as to those amounts. In addition, of course, the guideline range must be considered

advisory only.


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United States v. Judd

                                   CONCLUSION


       For the reasons set out above, we AFFIRM the defendant’s convictions but VACATE

the sentence imposed by the district court and REMAND the case for re-sentencing.




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