United States of America v. Waverley Judd

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.
WAVERLEY JUDD,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
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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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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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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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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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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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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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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