United States v. Lamont Sneed ( 2010 )


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  •                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 10a0439n.06
    
                                               No. 09-3215
                                                                                            FILED
                                 UNITED STATES COURT OF APPEALS
                                                                                         Jul 19, 2010
                                                                                   LEONARD GREEN, Clerk
                                      FOR THE SIXTH CIRCUIT
    
    
                                                             )
    UNITED STATES OF AMERICA,                                )
                                                             )        ON APPEAL FROM THE
           Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                             )        COURT FOR THE SOUTHERN
    v.                                                       )        DISTRICT OF OHIO
                                                             )
    LAMONT SNEED,                                            )                           OPINION
                                                             )
           Defendant-Appellant.                              )
    
    
    
    
    BEFORE:        NORRIS, MOORE, and McKEAGUE, Circuit Judges.
    
           McKeague, Circuit Judge. Lamont “Dante” Sneed was convicted by a jury of conspiracy
    
    to violate a federal law and aiding and abetting armed bank robbery in connection with his
    
    involvement in a 2007 bank robbery. Prior to trial, Sneed moved to suppress evidence that had been
    
    gathered from his car. Sneed contended that the affidavit, used to obtain the warrant to search his
    
    car, failed to establish probable cause that evidence from the robbery would be located in his car.
    
    The district court rejected this argument and admitted the incriminating evidence at trial. After the
    
    jury returned a guilty verdict, Sneed moved at sentencing for a downward departure and objected to
    
    a sentence enhancement factor on the grounds that it violated his Sixth Amendment rights. The
    
    district court also rejected Sneed’s Sixth Amendment argument and sentenced him to prison terms
    
    of sixty months on the conspiracy count and eighty months on the robbery count, to run concurrently.
    No. 09-3215
    USA v. Sneed
    
    Sneed now appeals the district court’s denial of his motion to suppress and rejection of his Sixth
    
    Amendment argument. After carefully reviewing the search warrant affidavit, we have determined
    
    that the district court properly denied Sneed’s motion to suppress. We have further determined that
    
    the district court properly rejected Sneed’s Sixth Amendment argument. Accordingly, we AFFIRM
    
    Sneed’s conviction and sentence.
    
                                                     I.
    
           Agents with the Federal Bureau of Investigation were notified on May 3, 2007, of a robbery
    
    at the Sky Bank in Pickerington, Ohio. Witnesses at the scene described a dark-colored Honda
    
    Accord, including license plate number, and three individuals. The witnesses were able to describe
    
    the robbers putting on masks prior to the robbery, the car in question used during the robbery, and
    
    two robbers exiting the bank and getting back into the vehicle after the robbery. In addition, bank
    
    employees informed agents that a suspicious-looking male, identifying himself as Dante, entered the
    
    bank a little over an hour before the robbery, asked about money orders, and exited the bank without
    
    transacting any business. Video surveillance captured the suspicious-looking male.
    
           FBI agents searched vehicle registration records for the license plate number reported by
    
    witnesses and identified the Honda as belonging to Virginia Castro. Based on this lead, agents
    
    questioned Castro about her whereabouts on May 3. Castro informed investigators that her brother,
    
    Dante Sneed, borrowed her car on May 3 and returned it later that night. But upon further
    
    questioning, Castro changed her story and told the agents that she had used the car on May 3. Agents
    
    had also received information about an April 27 robbery of a CME credit union and determined that
    
    a car matching the description of Castro’s was used in that robbery as well. Castro informed agents
    
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    No. 09-3215
    USA v. Sneed
    that Sneed had used her car on April 27; she also eventually confirmed that Sneed used her car on
    
    May 3 during the time of the Sky Bank robbery.
    
           Based on the information provided by Castro as well as witness statements, agents obtained
    
    and executed a warrant to search Castro’s Honda Accord. Within the vehicle, they discovered a Sky
    
    Bank business card and a set of gloves matching those seen in surveillance video taken at the time
    
    of the Sky Bank robbery. Agents then decided to investigate Sneed further. They ran a criminal
    
    history and motor vehicle check and discovered that a Cadillac was registered to his name.1 Witness
    
    statements confirmed that Sneed regularly drove the Cadillac. Agents also determined that Sneed
    
    worked the night shift at a Greyhound terminal in Columbus and that he listed the address of his
    
    mother and Castro as his home address. Castro informed the investigating agents that Sneed
    
    occasionally stayed at her home, but that he did not permanently live there. She also told agents that
    
    Sneed had children with many women and that he stayed with these women at times, though he did
    
    not have any permanent residence.
    
           Agents then decided to interview Sneed at his place of employment on May 16. Upon
    
    arriving at the Greyhound station, they noticed a Cadillac Seville with a license plate number
    
    matching the Cadillac registered to Sneed. The agents parked their vehicles around Sneed’s Cadillac
    
    and entered the Greyhound station. A Greyhound manager stated that Sneed had clocked in earlier
    
    in the night, confirming that he was present at the station. The manager then paged Sneed over the
    
    loudspeaker, asking him to report to the front desk, but Sneed never reported to the front. With the
    
    
           1
             Agents subsequently learned that Sneed bought another vehicle on April 28, though the
    record is unclear as to when exactly agents discovered this information.
    
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    No. 09-3215
    USA v. Sneed
    aid of local law enforcement officers, agents searched the facility for Sneed for over an hour, but
    
    were unable to locate him. A man matching Sneed’s description was seen near the Greyhound
    
    station, though officers were unable to apprehend him. Dante Sneed never returned to the
    
    Greyhound station that night to clock out or retrieve his vehicle.
    
           After discontinuing the search, the agents seized Sneed’s Cadillac from the Greyhound
    
    parking lot and towed it to the Columbus Police Department. The next morning they applied for a
    
    warrant to search the vehicle and attached an affidavit signed by FBI Agent Erik Lauber. The
    
    affidavit stated that witnesses to the Sky Bank robbery observed two black males exit the bank and
    
    enter a Honda Accord, driven by a third black male, with Ohio plate number DWN 2893. The
    
    affidavit also stated that the vehicle was registered to Virginia Castro and that an interview with
    
    Castro revealed that Castro’s brother Dante Sneed had access to the Honda Accord. In addition,
    
    Lauber’s affidavit noted that a suspicious-looking male entered Sky Bank in the hours leading up
    
    to the robbery, identified himself as “Dante,” and asked questions about money orders. Surveillance
    
    video revealed the suspicious-looking male to be Dante Sneed. Specifically in regards to Sneed’s
    
    Cadillac, the affidavit stated that the vehicle in question was registered to Dante Sneed, per Ohio
    
    motor vehicle records. The affidavit then went on to state the following:
    
           13. On 5/4/2007, Castro, Sneed’s sister, stated that Sneed did not live at 2259 New
           Village Road, but instead lived in many different places. Castro did not know the
           exact address where Sneed stays, because it changes nightly.
    
           14. On 5/16/2007, at approximately 10:15 pm, agents went to the Greyhound
           terminal to interview Sneed. Upon arrival Sneed’s vehicle, Ohio Registration EBT-
           6523, a four door, black in color, Cadillac, was seen in the Greyhound parking lot.
           Agents parked their vehicles next to Sneed. Greyhound management advised that
           Sneed had clocked in at 9:56 pm. Greyhound management attempted to find Sneed,
    
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    USA v. Sneed
           even paging him over the loud speaker. Sneed did not respond. Agents and
           Columbus Police Department officers searched the entire terminal for Sneed but he
           had fled the premises. A CPD officer saw a black male, matching the height of
           Sneed and having similar clothing to what Sneed was wearing, walking on 4th Street
           away from the Greyhound terminal. Agents and CPD officer’s [sic] surrounded
           Sneed’s vehicle. It is believed that Sneed did not return to the vehicle in hopes of
           disassociating himself from the car and its contents.
    
           15. On 5/17/2007, Greyhound management confirmed that Sneed never returned to
           work to clock out.
    
           16. Due to Sneed having abandoned his job and his vehicle agents seized the vehicle
           for safe keeping. Furthermore, as Sneed does not have a full time residence it is the
           belief that evidence of the Sky Bank robbery may be in Sneed’s vehicle.
    
           17. Your affiant believes there is sufficient probable cause to search the 1996
           Cadillac, four door Vin#: 1G6KD52Y4TU214423, with Ohio registration EBT-6523.
    
           A magistrate judge authorized the search warrant on May 17. Prior to searching the Cadillac,
    
    agents made a final attempt to locate Sneed, but were unsuccessful. They therefore executed the
    
    warrant the following day. Within Sneed’s vehicle, agents found the following: a handgun, similar
    
    in style to that used in the Sky Bank robbery; hats and bandanas, suspected of being worn in the
    
    CME bank robbery; and several pairs of gloves, also believed to have been used in the CME robbery.
    
           Prior to trial, Sneed moved to suppress the evidence seized from his Cadillac. He argued that
    
    the warrantless seizure of his Cadillac was not supported by exigent circumstances and that the
    
    search warrant affidavit did not establish probable cause to believe that evidence from the robberies
    
    would be located in the vehicle. The district court conducted a hearing on the motions. During this
    
    hearing, Lauber testified that the agents “truly believed when a suspect, such as Mr. Sneed . . . , did
    
    not have a residence of his own . . . that it was much easier for him to place evidence in a vehicle
    
    . . . .” Tr. of Hr’g on Def.’s Mot. to Suppress at 67:7–10, United States v. Sneed, 2:07-cr-00122
    
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    No. 09-3215
    USA v. Sneed
    (S.D. Ohio Aug. 28, 2007). The court ultimately denied both motions. It determined that a warrant
    
    was not necessary to seize the Cadillac, so long as the agents had probable cause to believe that it
    
    contained contraband. As to the search warrant affidavit, the district court determined that the
    
    affidavit taken as a whole set forth probable cause to believe that items related to the robbery would
    
    be found in the Cadillac.
    
           After a three day trial, the jury found Sneed guilty on Count One of conspiracy to commit an
    
    offense against the Unites States and on Count Two of aiding and abetting in armed bank robbery.
    
    The jury acquitted Sneed of the charges in Count Three, aiding and abetting in the possession of a
    
    firearm in furtherance of a crime. The Presentence Investigation Report (“PSR”) calculated Sneed’s
    
    total offense level to be 28, which included a five level enhancement for use of a firearm in the Sky
    
    Bank robbery, and his criminal history category to be III. Prior to sentencing, Sneed filed a motion
    
    for a downward departure. Sneed specifically contended that a criminal history category of III
    
    overstated the seriousness of his criminal history. He also argued that the five level enhancement
    
    for use of a firearm in the robbery violated his Sixth Amendment rights because the jury had
    
    acquitted him of Count Three, which charged Sneed with aiding and abetting the possession of a
    
    firearm in furtherance of a crime, though Sneed conceded that this court had already addressed this
    
    argument in United States v. White, 
    551 F.3d 381
     (6th Cir. 2008) (en banc).
    
           The district court acknowledged Sneed’s Sixth Amendment argument and determined that
    
    the firearm enhancement was justified because Count Two charged that Sneed and his co-
    
    conspirators used a dangerous weapon in the Sky Bank robbery. The court then adjusted the criminal
    
    history category to II and sentenced Sneed to sixty months imprisonment on Count One and eighty
    
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    No. 09-3215
    USA v. Sneed
    months on Count Two, to be served concurrently. Sneed now brings this appeal, challenging the
    
    district court’s determination that the search warrant affidavit was supported by probable cause and
    
    the district court’s use of the firearm sentence enhancement. Sneed does not challenge the district
    
    court’s determination on the warrantless seizure of his vehicle nor does he challenge any other aspect
    
    of his sentence.
    
                                                       II.
    
            We begin by addressing Sneed’s argument that the warrant to search his Cadillac lacked
    
    probable cause. This court reviews legal conclusions as to the existence of probable cause de novo.
    
    United States v. Williams, 
    544 F.3d 683
    , 685 (6th Cir. 2008). We uphold factual findings unless the
    
    findings are clearly erroneous. Id. We also give great deference to the issuing judge’s determination
    
    of probable cause, and we will not disturb this determination unless it was arrived at arbitrarily.
    
    United States v. Higgins, 
    557 F.3d 381
    , 389 (6th Cir. 2009). Further, we will uphold the district
    
    court’s decision to deny a motion to suppress if any reason exists to justify the denial. Id.
    
            The Fourth Amendment requires a showing of probable cause, supported by oath or
    
    affirmation, before a warrant may legally issue. United States v. McPhearson, 
    469 F.3d 518
    , 523
    
    (6th Cir. 2006) (quoting U.S. Const. amend. IV). In determining whether this requirement has been
    
    satisfied, the issuing magistrate must “make a practical, common-sense decision whether, given all
    
    the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence
    
    of a crime will be found in a particular place.” United States v. Lapsins, 
    570 F.3d 758
    , 763–64 (6th
    
    Cir. 2009)(internal quotations omitted). The magistrate must have a substantial basis for concluding
    
    that the search will uncover evidence of wrongdoing. McPhearson, 469 F.3d at 523–24. In applying
    
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    No. 09-3215
    USA v. Sneed
    the probable cause standard, the magistrate uses a practical standard, based on factual and practical
    
    considerations of every day life, rather than a technical standard. United States v. Brooks, 
    594 F.3d 488
    , 492 (6th Cir. 2010). In the event that a warrant lacks probable cause, evidence obtained from
    
    the illegal search may still be used at trial if the search meets the requirements of the good faith
    
    exception. McPhearson, 469 F.3d at 523.
    
                                                      A.
    
           Sneed challenges the search warrant affidavit for failing to establish the required nexus
    
    between his Cadillac and evidence of the bank robbery. He does not contend that probable cause
    
    was lacking to establish his involvement in the bank robbery. Nor does he challenge the veracity of
    
    the information contained in the affidavit. Accordingly, our analysis focuses on the sole issue of
    
    whether Lauber’s affidavit sufficiently set forth probable cause to believe that evidence of the
    
    robbery would be located in the Cadillac.
    
           When a warrant application seeks to search a particular location, the affidavit must establish
    
    a sufficient “nexus between the place to be searched and the evidence to be sought.” Brooks, 594
    
    F.3d at 492 (internal quotations omitted). It is not enough that the owner of the property is suspected
    
    of a crime; rather, the affidavit must show reasonable cause to believe that contraband sought will
    
    be found in the property to be searched. Id. The Sixth Circuit, along with numerous other Circuits,
    
    has consistently held that a nexus can be inferred based on the nature of the evidence sought and the
    
    type of offense that the defendant is suspected of having committed. See, e.g., United States v.
    
    Gunter, 
    551 F.3d 472
    , 481 (6th Cir. 2009) (“[I]t was reasonable to infer that evidence of illegal
    
    activity would be found at Gunter’s residence.”); Williams, 544 F.3d at 688; see also United States
    
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    No. 09-3215
    USA v. Sneed
    v. Stearn, 
    597 F.3d 540
    , 554 (3d Cir. 2010) (“Probable cause can be . . . inferred from ‘the type of
    
    crime, the nature of the items sought, the suspect’s opportunity for concealment, and normal
    
    inferences about where a criminal might hide [evidence].’”); United States v. Tate, 
    586 F.3d 936
    ,
    
    943 (11th Cir. 2009) (“‘Evidence that a defendant has stolen material which one normally would
    
    expect him to hide at his residence will support a search of his residence.’”); United States v. Orozco,
    
    
    576 F.3d 745
    , 749 (7th Cir. 2009) (“‘Warrants may be issued even in the absence of direct evidence
    
    linking criminal objects to a particular site.’”); United States v. Thompson, 263 F. App’x 374, 378
    
    (4th Cir. 2008) (per curiam) (“[T]his court has observed that it is reasonable to assume that
    
    individuals store weapons in their homes.”); United States v. Ribeiro, 
    397 F.3d 43
    , 49 (1st Cir. 2005)
    
    (“The probable-cause nexus . . . ‘can be inferred from the type of crime, the nature of the items
    
    sought . . . .’”).
    
            In applying the nexus requirement, this court has held that an affidavit established the
    
    required nexus between the defendant’s home computer and images of child pornography where the
    
    affidavit showed that (1) the images were uploaded in the early morning hours, at a time when the
    
    defendant was likely to be home, (2) pornographic images are more likely to be stored on a home
    
    computer, where there is relatively more privacy, and (3) the IP address connected with the images
    
    was traced to a residential cable modem. Lapsins, 570 F.3d at 766. The affidavit in Lapsins
    
    established a nexus even though it did not specifically state that the IP address was registered to the
    
    defendant’s name. Id. The nexus requirement was also met where the affidavit stated that the
    
    defendant’s residence contained a strong odor of marijuana and that the defendant was arrested at
    
    his residence with $1,000 in his pocket. Brooks, 594 F.3d at 494–95. This information provided
    
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    No. 09-3215
    USA v. Sneed
    probable cause to believe that contraband would be located in the defendant’s home, even though
    
    the affidavit contained some amount of stale information. Id. at 489, 495. Furthermore, this court
    
    has also held that a magistrate judge could infer that instrumentalities of criminal activity would be
    
    found at a defendant’s residence where the affidavit contained information implicating the defendant
    
    in a robbery. Williams, 544 F.3d at 688.
    
           On the other hand, probable cause was not established, and the affidavit failed to show a
    
    nexus between the residence and evidence of drug activity, in a case where the defendant was
    
    arrested at his residence on an assault charge and crack cocaine was discovered on his person.
    
    McPhearson, 469 F.3d at 524. The McPhearson court noted that an inference of drug activity is
    
    permissible in some cases, but was not permissible in that particular case because there was no
    
    independent corroborating evidence that the defendant was a known drug dealer. Id. at 524–25.
    
    Similarly, probable cause was not established where the affidavit in support of the warrant to search
    
    the defendant’s residence contained uncorroborated statements from an informant that the informant
    
    had purchased drugs from the defendant. Higgins, 557 F.3d at 389–90. The Higgins court noted that
    
    the affidavit contained no information as to whether the informant had been inside the defendant’s
    
    apartment or seen drugs at the defendant’s home. Id. at 390.
    
           Based on the above-surveyed case law, this case presents a close call as to whether Lauber’s
    
    affidavit established a nexus between Sneed’s Cadillac and evidence of the bank robbery. Yet
    
    reading the affidavit as a whole, and based on the totality of the circumstances, we conclude that it
    
    set forth sufficient facts to meet the nexus requirement. See Lapsins, 570 F.3d at 763–64 (stating
    
    the standard for evaluating whether probable cause exists). Sneed does not dispute that the
    
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    No. 09-3215
    USA v. Sneed
    information contained in Lauber’s affidavit clearly established probable cause to believe that Sneed
    
    was connected with the Sky Bank robbery. A reading of the affidavit in its entirety also supports an
    
    inference that Sneed would have kept instrumentalities from the robbery in his Cadillac. See Gunter,
    
    551 F.3d at 481 (stating that an inference can be drawn that a suspect will keep criminal
    
    instrumentalities in his place of residence).
    
           First, the affidavit established that Sneed did not live at the address that he had listed with
    
    motor vehicle records and that his address “change[d] nightly.” The affidavit also established that
    
    the Cadillac was registered to Sneed and that the vehicle was discovered at a location where Sneed
    
    was known to have been only moments before the vehicle’s discovery. In addition, the affidavit
    
    stated that the affiant believed that Sneed intentionally tried to “disassociate” himself from the
    
    vehicle and its contents and that Sneed never returned for the vehicle once agents went in search of
    
    him. Further, Sneed had a known history of storing instrumentalities from the robbery in vehicles,
    
    as the search of Castro’s Honda Accord revealed. Moreover, the affidavit stated that because Sneed
    
    did not have a permanent residence, the affiant believed that evidence from the Sky Bank robbery,
    
    which occurred only fourteen days prior to the seizure of the car, may be located in the Cadillac.
    
    Finally, criminal instrumentalities from a robbery are the type of evidence that an individual in
    
    Sneed’s position, who lacked a permanent residence, would likely keep in his vehicle. See Williams,
    
    544 F.3d at 688. Taken as a whole, this information provides a substantial basis from which a
    
    magistrate judge could infer that instrumentalities from the Sky Bank robbery would be located in
    
    
    
    
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    No. 09-3215
    USA v. Sneed
    Sneed’s Cadillac. See Stearn, 597 F.3d at 554; Tate, 586 F.3d at 943; Orozco, 576 F.3d at 749;
    
    Gunter, 551 F.3d at 481.
    
           Further, the affidavit in this case is distinguishable from cases where the nexus requirement
    
    was not satisfied. In McPhearson, we determined that the affidavit did not establish a nexus because
    
    the affidavit did not provide independent corroborating evidence that the defendant was suspected
    
    of having engaged in the criminal activity for which evidence was sought. 469 F.3d at 524.
    
    However, the affidavit in this case contained plenty of independent corroborating evidence to
    
    establish that Sneed was involved in the Sky Bank robbery. Specifically, the affidavit stated that
    
    Sneed had access to the getaway vehicle used in the robbery, that Sneed suspiciously entered the
    
    bank a mere hour and one-half before the robbery, and that evidence of the Sky Bank robbery was
    
    found in the getaway vehicle. Further, unlike the facts in Higgins, where the affidavit was based on
    
    uncorroborated informant statements, the affidavit in this case was based on facts directly determined
    
    by the investigating officers. See 557 F.3d at 390.
    
           As a final matter, we are unpersuaded by the case law that Sneed advances to support his
    
    position. Sneed first relies on United States v. Bethal, 245 F. App’x 460 (6th Cir. 2007), where this
    
    court found that the affidavit, containing general facts about the defendant’s status as a gang member
    
    and connecting him to other gang members whose residences contained weapons, did not establish
    
    probable cause to believe that weapons would be found in the defendant’s home. However, unlike
    
    the facts in Bethal, the affidavit in this case contained specific information linking Sneed to a
    
    specific robbery and also contained a statement that officers believed that Sneed was intentionally
    
    
    
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    No. 09-3215
    USA v. Sneed
    distancing himself from incriminating evidence in his vehicle. Finally, Sneed cites to United States
    
    v. Savoca, 
    761 F.2d 292
     (6th Cir .1985), where this court determined that a nexus was not
    
    established between a bank robbery and a motel room. Yet in that case the motel room was located
    
    2,000 miles away from the robbery and the affidavit did not contain information on when the bank
    
    robbery had occurred. Savoca, 761 F.2d at 295. In this case, Sneed’s vehicle was located in the
    
    general area of the robbery and was searched only days after the robbery. Based on the totality of
    
    the circumstances, and using a common-sense approach, we hold that Lauber’s affidavit sufficiently
    
    established a nexus between Sneed’s Cadillac and evidence of the Sky Bank robbery.
    
                                                    B.
    
           Even if the affidavit does not meet the nexus requirement, we would nonetheless uphold
    
    Sneed’s conviction under the Leon good faith exception. Items recovered pursuant to an invalid
    
    search warrant do not have to be excluded if the search meets the good faith exception to the
    
    exclusionary rule. See United States v. Leon, 
    468 U.S. 897
    , 922 (1984); United States v. Carpenter,
    
    
    360 F.3d 591
    , 595 (6th Cir. 2004) (en banc). The good faith exception applies if the evidence is
    
    “obtained in objectively reasonable reliance on a subsequently invalidated search warrant.”
    
    Carpenter, 360 F.3d at 595 (quoting Leon, 468 U.S. at 922). The objectively reasonable reliance
    
    standard requires less than the showing required for probable cause. Id. We have recognized four
    
    situations under which the good faith exception does not apply: (1) when the affidavit contains a
    
    known or reckless falsity; (2) when the magistrate who issued the warrant wholly abandoned his or
    
    her role; (3) when the affidavit lacks an indicia of probable cause such that reliance on it is
    
    
    
                                                   - 13 -
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    USA v. Sneed
    objectively unreasonable; and (4) when the warrant is facially invalid such that it cannot reasonably
    
    be presumed valid. McPhearson, 469 F.3d at 525. Sneed argues that the third situation applies to
    
    this case. To determine whether agents’ reliance on the affidavit was objectively unreasonable, we
    
    must inquire into whether the warrant was issued on the basis of a “bare bones” affidavit; that is,
    
    whether the affidavit merely contained suspicions and beliefs without any underlying factual
    
    information on the veracity or reliability of the information. Id. at 525–26.
    
           In addressing whether officers’ reliance on a warrant was objectively unreasonable, this court
    
    has found that the good faith exception applied where the affidavit contained at least some nexus
    
    between the residence to be searched and the illegal activity. Carpenter, 360 F.3d at 595–96. The
    
    Carpenter court noted that the officers’ reliance on the invalid search warrant was objectively
    
    reasonable because the affidavit in support of the warrant stated that marijuana was growing near
    
    the residence and that a road connected the residence to the growing marijuana plants. Id.
    
    Therefore, reasonable officers could have believed that the affidavit supported the issuance of the
    
    warrant. Id. at 596. Similarly, the good faith exception applied where officers could have inferred
    
    a nexus between the residence to be searched and evidence of known drug activities. Higgins, 557
    
    F.3d at 391. The Higgins court noted that even though the affidavit did not meet the probable cause
    
    standard, a reasonably well trained officer would not have known the search was illegal based on
    
    information provided to the officers. Id.
    
           On the other hand, the good faith exception did not apply where the supporting affidavit
    
    provided no information establishing a connection between the place to be searched and evidence
    
    
    
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    USA v. Sneed
    of drug activity. McPhearson, 469 F.3d at 526; United States v. Laughton, 
    409 F.3d 744
    , 751 (6th
    
    Cir. 2005). As previously noted, the affidavit in McPhearson contained nothing more than the fact
    
    that the defendant was arrested at his residence and that crack cocaine was found in his pocket; it
    
    contained no information indicating that the defendant was known to have participated in drug
    
    trafficking. Id. Similarly, the affidavit in Laughton simply stated that a confidential informant had
    
    purchased drugs on multiple occasions, but did not contain information as to whether the informant
    
    had purchased drugs from the defendant or whether the informant had seen drugs at the particular
    
    location to be searched. 409 F.3d at 751. Because the affidavit contained no information connecting
    
    the drug activity to the residence, a reasonable officer could not have believed that it established
    
    probable cause. Id. at 749, 751.
    
           Applying the above case law to this case, we believe that the good faith exception applies
    
    here. To begin with, this court has noted that reasonably well trained officers may infer a nexus
    
    between a place to be searched and items sought, even when the affidavit fails to establish probable
    
    cause. See Higgins, 557 F.3d at 391. Further, unlike the affidavits in McPhearson and Laughton,
    
    the affidavit in this case contained some indication of a nexus between Sneed’s Cadillac and
    
    evidence of the Sky Bank robbery. Specifically, paragraph thirteen stated that officers believed that
    
    Sneed tried to distance himself from the Cadillac and its contents. And Sneed does not challenge
    
    the veracity of this statement. In addition, paragraph sixteen stated that Sneed did not have a
    
    permanent residence and that the affiant therefore believed that evidence of the robbery may be
    
    located in Sneed’s vehicle. Moreover, the affidavit connected Sneed to the vehicle by noting that
    
    
    
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    No. 09-3215
    USA v. Sneed
    the vehicle was discovered at Sneed’s place of employment, only moments after Sneed reported for
    
    work. In sum, this is not the type of “bare bones” affidavit which this court has found lacking in any
    
    indicia of probable cause. See McPhearson, 469 F.3d at 525–26.
    
                                                      III.
    
            We now move to Sneed’s Sixth Amendment argument regarding his sentence enhancement.
    
    Sneed claims that his Sixth Amendment rights were violated by the district court’s use of the firearm
    
    enhancement because the jury acquitted him of the charge related to possession of a firearm. Sneed
    
    concedes that this issue has been addressed by the en banc court in United States v. White, 
    551 F.3d 381
     (6th Cir. 2008) (en banc), and states that he advances the argument only for the purposes of
    
    preserving it for further appellate review. In White, this court noted that “[s]o long as the defendant
    
    receives a sentence at or below the statutory ceiling set by the jury’s verdict, the district court does
    
    not abridge the defendant’s right to a jury trial by looking to other facts, including acquitted conduct,
    
    when selecting a sentence within that statutory range.” 551 F.3d at 385. In this case, Sneed does not
    
    contend that his sentence exceeds the maximum allowed by the jury’s verdict. Further, the district
    
    court provided adequate explanation as to why it enhanced Sneed’s sentence for use of a firearm. We
    
    therefore affirm Sneed’s sentence.
    
                                                      IV.
    
            For the foregoing reasons, we AFFIRM Sneed’s conviction and sentence.
    
    
    
    
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    No. 09-3215
    USA v. Sneed
           KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree with
    
    Part III of the majority opinion upholding Sneed’s sentence in light of United States v. White, 
    551 F.3d 381
     (6th Cir. 2008) (en banc). I would uphold the search of the Cadillac solely on the basis of
    
    the good-faith exception to the exclusionary rule articulated in United States v. Leon, 
    468 U.S. 897
    ,
    
    922 (1984). Therefore, I concur in the judgment.
    
    
    
    
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