Background
Xavier Lopez conditionally pleaded guilty to possessing a destructive device in violation of federal firearms law. Before pleading guilty, he moved to suppress evidence seized during the execution of a search warrant at his home and requested an evidentiary hearing under Franks v. Delaware to challenge statements and omissions in the supporting affidavit.
Lopez argued that the affidavit misleadingly described his prior possession of firearms and reports of stolen firearms near his home. He also challenged the omission of the fact that, when visiting stores that sold firearms and asking about firearms despite his felony conviction, he never touched a firearm. At sentencing, the district court imposed a four-level enhancement under USSG § 2K2.1(b)(6)(B), finding that Lopez possessed the destructive device in connection with another felony offense.
On appeal, Lopez challenged both the denial of a Franks hearing and the sentencing enhancement. The Government defended the Franks ruling and argued that Lopez’s written plea agreement waived his right to appeal the sentencing issue.
The Court’s Holding
The Fourth Circuit affirmed the denial of a Franks hearing. It agreed with the district court that the challenged statements were neither false nor misleading when read in context and that Lopez failed to make the required substantial preliminary showing that the affiant acted intentionally or with reckless disregard for the truth. The court likewise found no sufficient showing that the omission concerning Lopez’s conduct in firearms stores was intentional or reckless.
The court further held that the omission was not material because including the omitted fact would not have defeated probable cause. Lopez therefore failed to satisfy the demanding requirements for a Franks hearing.
The court dismissed Lopez’s sentencing appeal. It held that he knowingly and intelligently accepted the appellate waiver after confirming under oath that he had read and discussed the plea agreement, declining additional time to review it, and stating that he understood the district court’s explanation of the waiver. His sentencing challenge fell within the waiver’s scope, and his limited First Amendment argument did not present a colorable constitutional claim that escaped the waiver.
Key Takeaways
- A defendant seeking a Franks hearing must make a substantial preliminary showing of an intentional or reckless falsehood or omission that was material to probable cause.
- Statements in a warrant affidavit are evaluated in context; Lopez did not show that the challenged descriptions were false, misleading, intentional, or reckless.
- An appellate waiver may be enforced when the Rule 11 record demonstrates that the defendant read, discussed, and understood it, even if the agreement was not signed until the plea colloquy.
- A passing First Amendment argument did not create a colorable constitutional claim sufficient to avoid Lopez’s otherwise enforceable appeal waiver.
Why It Matters
The decision illustrates the substantial threshold a defendant must meet before obtaining a Franks hearing, particularly when the challenge concerns omitted information. An omission warrants a hearing only when the defendant makes the required showing of intentional or reckless conduct and demonstrates that including the information would have defeated probable cause.
The unpublished decision also underscores the importance of a thorough Rule 11 colloquy in enforcing appellate waivers. A defendant’s sworn confirmation that he reviewed and understood the agreement can foreclose later challenges to sentencing issues within the waiver’s scope.