Submitted November 19, 2015.
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For United States of America, Plaintiff - Appellee: Philip M. Koppe, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Kansas City, MO; Christina Y. Tabor, Assistant U.S. Attorney.
For Gregory M. Shockley, Defendant - Appellant: David Edward Pettyjohn, Kansas City, MO.
Gregory M. Shockley, Defendant - Appellant, Pro se, Pine Knot, KY.
Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
GRUENDER, Circuit Judge.
Gregory M. Shockley was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After the district court denied his motion to suppress, Shockley conditionally pleaded guilty, reserving his right to appeal the suppression issue. The district court sentenced him to 180 months' imprisonment under the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e)(1). Shockley appeals both the denial of his motion to suppress and his sentence. We affirm the denial of Shockley's motion to suppress. We vacate his sentence and remand for resentencing in light of Johnson v. United States, 576 U.S., 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).
In February 2012, Kansas City Police began investigating Shockley for drug trafficking. Several months later, police suspected that Shockley was involved in a homicide after learning that he was the homicide victim's pimp and drug dealer and that he had fought with the victim hours before her death. Investigating officers went to Shockley's residence to search his trash in connection with the drug-trafficking and murder investigations. Officers retrieved and examined a single bag of trash, which contained eight small, clear plastic sandwich bags with stretched and torn corners; a small amount of a green leafy substance that tested positive for tetrahydrocannabinol (" THC" ), the main active ingredient in marijuana; eleven plastic gloves; and two pieces of mail belonging to Shockley and mailed to Shockley's address. The trash also contained a torn, red-stained piece of cloth that investigators believed had come from a tank top that the homicide victim was wearing several hours before her death.
As a result of these findings, police obtained a search warrant for Shockley's residence. The magistrate judge issued the warrant based on an affidavit from Detective Leland Blank, which summarized the drug and homicide investigations of Shockley and described the items police found in his trash. During the search, police found firearms, ammunition, two digital scales, a small quantity of marijuana, and bags that contained methamphetamine and cocaine residue.
A grand jury indicted Shockley for being a felon in possession of a firearm. He filed a motion to hold a Franks hearing and to suppress evidence seized during the search of his home. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Shockley argued that the search-warrant affidavit contained omissions and false and misleading statements regarding the homicide investigation. He claimed that the affidavit would not support finding probable cause absent Detective Blank's false statements. The magistrate judge issued a report and recommendation denying Shockley's motion, finding that Detective Blank provided sufficient facts to support probable cause based on Shockley's drug-trafficking activity. Because Shockley did not challenge any statements relating to the drug investigation, the allegedly false statements about the homicide investigation were not necessary to find probable cause to support issuing a search warrant. The district court adopted the report and recommendation over Shockley's objection.
After the denial of his suppression motion, Shockley conditionally pleaded guilty to being a felon in possession of a firearm, reserving his right to appeal the suppression issue. Shockley's presentence investigation report (" PSR" ) listed three prior felony convictions for resisting arrest. Because these offenses qualified as violent felonies under the residual clause of the ACCA, Shockley was subject to a fifteen-year minimum sentence as an ...