United States v. McKenzie-Gude, No. 10-4119

Decided Dec. 16, 2011

Collin McKenzie-Gude was convicted of possession of a firearm that was not registered to him. He entered a conditional plea of guilty, reserving his right to appeal the district court’s decision not to suppress evidence gained from his home or the basis of the warrant that allowed the search.

The warrant was obtained by a police detective and a Fire Marshall based, apart from both men’s training and experience, primarily on testimony by Ludmila Yevsukov that the defendant brought an AK-47 to her premises and often discussed dangerous and explosive chemicals with her nephew, Patrick. The affidavit to secure the warrant, however, did not state that the defendant lived at the address to be searched.

At a motions hearing, the district judge denied McKenzie-Gude’s motions to suppress the evidence obtained from the search and for a hearing to determine the veracity of the warrant solely because of the fact that the affiants did not link him to the address to be searched when obtaining the warrant. The district court denied both motions.

McKenzie-Gude appealed both the evidence and the sentence imposed after his conditional plea of guilty. The court determined his sentencing range as 78–97 months, but imposed a below-Guidelines sentence of 61 months.

The government conceded that the warrant application did not establish the proper nexus between the defendant and the searched residence. Nonetheless, it argued that per United States v. Leon, 468 U.S. 897 (1984) the court here should evaluate the officers’ good faith basis for obtaining and executing the warrant. The Fourth Circuit agreed and held that the officers acted with “objective reasonableness” in seeking the warrant and the omission of the nexus was inadvertent.

The court also affirmed the denial of a Franks hearing to determine the veracity of the warrant. McKenzie-Gude noted that the offers misrepresented that Yevsukov had personally observed the alleged acts leading to the probable cause determination and that they omitted a statement by Patrick that the defendant had never brought a gun to Yevsukov’s home. However, even if these assertions by the defendant were true, he made no showing that they were material to the judge’s probable cause determination whether to issue the search warrant.

Finally, the court held that McKenzie-Gude’s sentence was proper. The defendant was not entitled to a range reduction for “accepting responsibility” because he made no showing that he had done so. Pleading guilty does not mean one truly accepts responsibility for his or her actions. Furthermore, the district court’s decision to enhance McKenzie-Gude’s sentencing range was not clear error based on the facts and evidence available when making the determination.

Full Opinion

-C. Alexander Cable

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