                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 10-2003
                                    ____________

                           UNITED STATES OF AMERICA

                                           v.

                               ANTHONY BROOKINS,

                                      Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. No. 2-08-cr-00166-001)
                     District Judge: Honorable Joy Flowers Conti
                                    ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 5, 2011

    Before: AMBRO and FISHER, Circuit Judges, and SÁNCHEZ, * District Judge.

                               (Filed: January 24, 2011)
                                    ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.




      *
       The Honorable Juan R. Sánchez, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
       Anthony Brookins was convicted of one count of possession of ammunition by a

convicted felon and one count of possession with intent to distribute fifty grams or more

of a substance which contains cocaine base. For the reasons stated below, we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On February 7, 2007, Detective Conor Mullen was working with the Allegheny

County District Attorney’s Violent Crime and Firearms Task Force (“VCFTF”) in

Braddock, Pennsylvania and engaged a confidential informant (“CI”) to purchase drugs

from Brookins. Detective Mullen observed as the CI walked up to 515 Center Street and

Brookins answered the door. The CI returned to the car and handed Detective Mullen a

package of crack cocaine. That same evening, Detective Mullen completed an

application for a search warrant of 515 Center Street and an affidavit of probable cause.

A magistrate judge signed the application and the first page of the affidavit, but did not

sign the last page of the affidavit. After obtaining the warrant, a VCFTF officer knocked

on the door and announced that they had a search warrant. When no one answered, the

officers forcibly entered the house. In the master bedroom, officers found Dolores

Woods, Brookins’s live-in girlfriend at the time, as well as crack cocaine, plastic baggies,

a scale, cash, ammunition, an Iver Johnson Smith & Wesson revolver, and documents

addressed to Brookins at 515 Center Street.

                                              2
       On October 22, 2008, Brookins was charged in the United States District Court for

the Western District of Pennsylvania with one count of possession of ammunition by a

convicted felon violation of 18 U.S.C. § 922(g)(1) (“Count 1”) and one count of

possession with intent to distribute fifty grams or more of a substance which contains

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) (“Count 2”). 1

Brookins unsuccessfully moved to suppress the evidence obtained from the search. A

jury convicted Brookins on both counts. The presentence investigation report (“PSR”)

recommended a base offense level of thirty and a two point enhancement for use of the

revolver, yielding a total offense level of thirty-two. The PSR ultimately concluded and

the District Court agreed, however, that Brookins was a career offender. As such,

Brookins’s total offense level was thirty-seven with a criminal history category of VI.

The guideline range for both counts was 360 months to life imprisonment. The District

Court sentenced Brookins to 120 months’ imprisonment for Count 1 and 240 months’

imprisonment for Count 2, to be served concurrently. Brookins timely appealed.

                                            II.

       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231,

and we have jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review of

the District Court’s denial of a motion to suppress.” United States v. Vosburgh, 602 F.3d

512, 526 (3d Cir. 2010). We review sentences for both procedural and substantive


       1
        28 U.S.C. § 841(b)(1)(A)(iii) was amended pursuant to the Fair Sentencing Act
of 2010, Pub. L. No. 111-220, effective August 3, 2010, to replace fifty grams with 280
grams of a mixture or substance which contains cocaine base.
                                           3
reasonableness under an abuse of discretion standard. United States v. Wise, 515 F.3d

207, 217-18 (3d Cir. 2008). We must uphold a conviction if the verdict was supported by

substantial evidence. United States v. McKee, 506 F.3d 225, 232 (3d Cir. 2007).

                                               III.

       On appeal, Brookins advances several arguments, namely, that (1) the District

Court erred by not suppressing the evidence seized, (2) the government withheld

impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), (3) the

District Court failed to consider various mitigating factors in imposing the sentence,

(4) the District Court erred in finding that the revolver was a dangerous weapon, and

(5) the government engaged in selective prosecution and prosecutorial misconduct.

       First, Brookins argues that the District Court erred in denying his motion to

suppress because the warrant lacked probable cause and suffered from technical defects.

The magistrate’s role is to “make a practical, common-sense decision whether, given all

the circumstances set forth in the affidavit before him, . . . there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,

462 U.S. 213, 238-39 (1983). We consider “whether the magistrate who issued the

warrant had a substantial basis for determining that probable cause existed.” Vosburgh,

602 F.3d at 526 (internal quotations and citations omitted). Brookins’s argument that the

CI’s statements were uncorroborated, thus rendering the warrant lacking in probable

cause, is misplaced. The affidavit of probable cause was based on Detective Mullen

engaging the CI to complete a controlled buy from Brookins. A controlled purchase is

                                                4
distinct from an informant’s unverified tip. See United States v. Burton, 288 F.3d 91, 98-

99 (3d Cir. 2002). The CI’s participation provided the magistrate with a “substantial

basis for determining that probable cause existed.” Vosburgh, 602 F.3d at 526.

       Brookins also argues that Detective Mullen misled the magistrate judge in stating

that Brookins lived at 515 Center Street in violation of Franks v. Delaware, 438 U.S. 154

(1978). Brookins must demonstrate “(1) that the police officer knowingly and

deliberately, or with a reckless disregard for the truth, made false statements or omissions

that create a falsehood in applying for a warrant and (2) that such statements or omissions

are material, or necessary, to the finding of probable cause.” Wilson v. Russo, 212 F.3d

781, 786-87 (3d Cir. 2000) (internal quotations and citations omitted). Brookins cannot

make either showing. Detective Mullen described the CI’s purchase of crack cocaine

from Brookins at 515 Center Street. “[S]earch warrants are directed, not at persons, but

at property where there is probable cause to believe that instrumentalities or evidence of a

crime will be found.” United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993)

(internal quotations and citations omitted). Thus, where Brookins was living was not the

“kind of thing the judge would want to know” and was not “material, or necessary, to the

finding of probable cause” Wilson, 212 F.3d at 786-87, because the affidavit established

probable cause to believe that illegal activity was occurring at 515 Center Street.

       Next, Brookins asserts that the warrant suffered from a host of technical defects in

violation of the Pennsylvania Rules of Criminal Procedure. He claims that the evidence

obtained from the search should have been suppressed because the magistrate failed to

                                             5
sign the second page of the affidavit and because VCFTF officers did not knock and

announce prior to executing the warrant, did not provide a copy of the warrant, did not

file the warrant, and did not provide a return of inventory form. A technical violation of

a state procedural rule does not automatically rise to the level of a Fourth Amendment

violation requiring suppression of the evidence seized. See Virginia v. Moore, 553 U.S.

164, 173 (2008). Rather, Brookins must demonstrate that the technical violations

amounted to a constitutional deprivation; mere conclusory allegations are insufficient.

See United States v. Voight, 89 F.3d 1050, 1071 n.10 (3d Cir. 1996).

       A magistrate’s failure to sign a warrant affidavit does not require suppression of

the evidence. See United States v. Smith, 63 F.3d 766, 769 (3d Cir. 1995). Detective

Mullen testified at trial that VCFTF officers knocked on the door at 515 Center Street and

yelled their intention to execute a warrant. Brookins offered no evidence to contradict

this testimony and cannot demonstrate a violation of the Fourth Amendment. Further,

Detective Mullen testified that he showed a copy of the search warrant to Brookins and

left a copy of the warrant on the kitchen table at 515 Center Street. Leaving a copy on

the kitchen table, when Brookins and Woods were in handcuffs, effectively complies

with the rule requiring that a warrant be left with the person from whom property was

taken. See Pa. R. Crim. P. 208. Even if it did not, Brookins offers no support for his

claim that he suffered prejudice and thus cannot demonstrate a Fourth Amendment

violation. See Voight, 89 F.3d at 1071 n.10. As to the failure to file the search warrant,

Detective Mullen admitted that he did not do so, but Brookins still obtained a copy.

                                             6
Brookins’s claim that he suffered prejudice, without demonstrating what prejudice

actually resulted in a Fourth Amendment violation, is insufficient to establish that the

evidence should have been suppressed. See id. Finally, Detective Mullen testified that

another officer filed a return of inventory form. Brookins offered no evidence to rebut

this testimony and fails to demonstrate a Fourth Amendment violation.

       Second, Brookins asserts that the government withheld an affidavit by Detective

Mullen and evidence that could have been be used to impeach Woods’s trial testimony.

To establish a violation under Brady, “a defendant must show that: (1) evidence was

suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the

suppressed evidence was material either to guilt or to punishment.” United States v.

Pelullo, 399 F.3d 197, 209 (3d Cir. 2005) (internal quotations and citations omitted). The

proper manner to raise a Brady claim is through a motion for a new trial in the district

court pursuant to Federal Rule of Criminal Procedure 33. See, e.g., United States v. Rice,

607 F.3d 133, 142 (5th Cir. 2010); United States v. Chorney, 63 F.3d 78, 80 (1st Cir.

1995). Brookins has not done so. We are unable to determine whether evidence relevant

to impeach Woods’s testimony was suppressed and whether it was material to guilt or

punishment because “Brady claims . . . present fact-based judgments that cannot be

adequately first made on appellate review.” Rice, 607 F.3d at 142 (internal quotations

and citations omitted). As to the affidavit of Detective Mullen, Brookins’s Brady claim

fails. The government produced the affidavit at trial and Brookins’s counsel was given

the opportunity to cross-examine Detective Mullen on its contents. Thus, the affidavit

                                             7
was not improperly suppressed because it was “disclosed in time for its effective use at

trial.” United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983).

       Third, Brookins maintains that the District Court failed to consider various

mitigating factors under § 3553(a). The District Court correctly determined that

Brookins was a career offender. See U.S.S.G. § 4B1.1(a). The District Court addressed

each of the § 3553(a) factors, considered Brookins’s difficult childhood, and explained

why the sentence was appropriate. Having determined that the District Court committed

no procedural error and gave “meaningful consideration” to the § 3553(a) factors, the

sentence was reasonable. United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007).

       Fourth, Brookins claims that the revolver discovered as a result of the search was

not a “dangerous weapon” because it is an antique and the District Court thereby erred in

imposing a two-level enhancement. If a defendant is convicted under 21 U.S.C. §

841(b)(1)(A)(iii), a district court must increase the offense level by two if the defendant

also possessed a dangerous weapon (including a firearm). See U.S.S.G. § 2D1.1(b)(1).

A “dangerous weapon” is “(i) an instrument capable of inflicting death or serious bodily

injury . . . .” U.S.S.G. § 1B1.1 cmt. n.1(D). An antique revolver qualifies as a dangerous

weapon for purposes of the enhancement even though it would not be considered a

firearm under the substantive offense set forth in 18 U.S.C. § 921(a)(3). See, e.g., United

States v. Kirvan, 86 F.3d 309, 316 (2d Cir. 1996); United States v. Cotton, 22 F.3d 182,

185 (8th Cir. 1994). The loaded revolver was found in the master bedroom and was fully

operational. As such, the revolver was capable of inflicting death or serious injury, and it

                                              8
was not “clearly improbable” that the weapon was connected with Brookins’s drug

trafficking. See U.S.S.G. §§ 1B1.1 cmt. n.1(D); 2D1.1 cmt. n.3. 2

       Finally, Brookins argues that he was the victim of selective prosecution and

prosecutorial misconduct. “The question of discriminatory prosecution” relates “to a

constitutional defect in the institution of the prosecution.” United States v. Berrigan, 482

F.2d 171, 175 (3d Cir. 1973). A motion alleging a defect in institution of the prosecution

must be raised before trial. See Fed. R. Crim. P. 12(b)(3)(A). Because Brookins never

raised his selective prosecution argument prior to trial, he may not advance it here. As to

his second argument, Brookins appears to confuse prosecutorial misconduct with

sufficiency of the evidence. Reviewing the evidence in the light most favorable to the

government, the jury’s verdict convicting Brookins on both counts was supported by

substantial evidence. See McKee, 506 F.3d at 232.

                                            IV.

       For the foregoing reasons, we will affirm the sentence of the District Court.




       2
         Notwithstanding Brookins’s argument on this point, the District Court properly
classified him as a career offender. Pursuant to U.S.S.G. § 4B1.1, the District Court was
required to apply an offense level of thirty-seven. Thus, the fact that the District Court
first applied a two-point enhancement in arriving at an initial offense level of thirty-two
was irrelevant. The enhancement ultimately did not factor into the total offense level and
did not have any bearing on Brookins’s sentence.
                                              9
