USCA4 Appeal: 21-4316 Doc: 30 Filed: 11/09/2022 Pg: 1 of 6

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4316

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LEDGER LYNN HAMMONDS, JR.,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:18−cr−00050−FL−1)

Submitted: October 3, 2022 Decided: November 9, 2022

Before WILKINSON and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Frank H. Harper, II, EVERETT & HITE, LLP, Greenville, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Acting Deputy Assistant Attorney General, Thomas E. Booth, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Norman Acker, III, Acting United States Attorney, David A. Bragdon, Assistant United States Attorney, Lucy P. Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee

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PER CURIAM:

After several buffalo on his farm were shot and killed, a local rancher began to

suspect his nephew and neighbor with a criminal record, Ledger Hammonds. Law

enforcement obtained a warrant and searched Hammonds’s home, where they found two

firearms. After a conditional guilty plea in 2021, Hammonds was convicted of possession

of a firearm by a felon, in violation of 18. U.S.C. § 922(g)(1). The district court sentenced

him to 180 months in prison. Hammonds timely appealed, claiming he was wrongly denied

an evidentiary hearing under Franks v. Delaware,

(1978), and contesting his

sentence enhancement under the Armed Career Criminal Act (ACCA),

(e)(1). The district court did not err in either finding, so we affirm.

I.

In 2015, law enforcement began interviewing people in connection with animal

cruelty complaints after several buffalo were found dead on a local farm. Police

interviewed Ronald Hammonds, who owned the herd of buffalo and reported that he heard

a gunshot and saw someone with a flashlight near his pasture at night. Ronald initially said

he might have seen Joshua Hammonds, but then corrected himself and said it was Ledger

Hammonds—Ronald’s nephew with a criminal record who lived nearby. Ronald also

reported that he had previously suspected Ledger of stealing his rifle and that he and Ledger

had gotten into an altercation over trespassing.

Based on this information, Investigator Erich Von Hackney submitted an affidavit

requesting a search warrant for the home of Ledger Hammonds. Von Hackney used

Ronald’s statements in the affidavit, but he also relied on an interview with a local animal

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cruelty investigator, who reported that she saw Hammonds with a firearm on two separate

occasions. Von Hackney thus asserted there was probable cause to believe Ledger

Hammonds had committed the crimes of cruelty to animals and possession of a firearm by

a convicted felon. United States v. Hammonds, No. 7:18-CR-050-FL-1,

at *2 (E.D.N.C. Oct. 30, 2019).

The court approved the search warrant, and when police executed the search, they

found a rifle and a handgun in Hammonds’s home.

As a result, Hammonds was indicted

and charged with a single count of possession of a firearm by a convicted felon in violation

of 18 U.S.C. 922(g)(1). Hammonds moved to suppress the evidence discovered at his

home, alleging that the search warrant affidavit recklessly or intentionally omitted

information in violation of Franks v. Delaware,

(1978). Hammonds

demanded an evidentiary hearing—a Franks hearing—to show these omissions.

A magistrate judge recommended denying this motion, which the district court

followed, reasoning that Hammonds’s assertions failed to show reckless or intentional

omissions. Hammonds,

at *4. The district court also found that

Hammonds qualified for a sentence enhancement under the Armed Career Criminal Act

for past convictions of breaking and entering under North Carolina General Statute § 14-

54. J.A. 95–97. Hammonds conditionally pled guilty and was sentenced to 180 months in

prison.

II.

Hammonds appeals on two issues. First, he challenges the denial of his suppression

motion and his requested Franks hearing, which he argues should have been granted

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because the search warrant either intentionally or recklessly omitted material facts that

undermine a finding of probable cause. Appellant’s Opening Brief at 13. Second,

Hammonds challenges his sentence enhancement, asserting that breaking and entering is

not “a crime of violence for purposes of the Armed Career Criminal Act because the North

Carolina Statute is broader than [] generic breaking and entering.” Id. at 14. We address

each issue in turn.

A.

“In considering whether the district court should have ordered a Franks hearing,

we review legal determinations de novo and any factual findings for clear error.” United

States v. Seigler,

(4th Cir. 2021). The veracity of a facially valid search

warrant affidavit is generally not open to challenge, but in Franks v. Delaware,

(1978), “the Supreme Court carved out a narrow exception to this rule,” United States

v. Allen,

(4th Cir. 2011), allowing the affidavit to be challenged if the

defendant can show a false statement or misleading omission.

When arguing there was an omission, as Hammonds does here, the “burden

increases yet more” for an affidavit “cannot be expected to include . . . every piece of

information gathered in the course of an investigation.” United States v. Tate,

, 454–55 (4th Cir. 2008) (quoting United States v. Colkley,

(4th

Cir. 1990)). Hammonds “must show that the omissions were ‘designed to mislead’” or

“made in reckless disregard of whether they would mislead,” and that the omissions “would

defeat probable cause.” United States v. Clenney,

(4th Cir. 2011)

(quoting Colkley,

).

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Hammonds argues that the affidavit omitted information such as inconsistencies in

Ronald Hammonds’s statements and the fact that Ledger Hammonds brought charges

against Ronald after a trespassing incident. He also contends that the affidavit omitted the

fact that the animal cruelty investigator, who reported seeing Hammonds twice with a

firearm, was wrong about the dates she saw Hammonds.

Hammonds, however, cannot make the required showing. The allegations regarding

Ronald’s interview fall short of showing that these omissions were intended to mislead. As

we have explained, “the very process of selecting facts to include for the demonstration of

probable cause must [] be a deliberate process of omitting pieces of information.” Tate,

. A mere assertion of omitted information lacks the requisite showing of

intentionality or recklessness. Thus, it “does not fulfill Franks’ requirements.”

Regarding the allegedly erroneous dates reported by the animal cruelty investigator,

simple mistakes do not rise to the level of intentional or reckless omissions. Tate,

(explaining that allegations of “innocent mistakes are insufficient”). Moreover,

mistakes regarding the dates on which Hammonds was seen possessing a firearm would

not defeat probable cause. As a felon, he should not have had a firearm on any date. Absent

evidence that the omitted information was designed to mislead, Hammonds cannot carry

the burden needed to obtain a Franks hearing.

B.

“Whether an offense constitutes a violent felony under the ACCA is a question of

law, and therefore we review it de novo.” United States v. Croft,

, 97 n.3 (4th

Cir. 2021). Under the ACCA, a person convicted of violating

(g) who has

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three prior convictions for a violent felony is subject to a sentence enhancement of 15 years.

United States v. Dodge,

(4th Cir. 2020) (citing

(e)(1)).

The district court enhanced his sentence because Hammonds had been convicted of

breaking and entering in North Carolina multiple times. We have previously addressed

whether breaking and entering as defined in North Carolina General Statute § 14-54 is a

violent felony under the ACCA, and we have already held that it is. United States v. Dodge,

(4th Cir. 2020).

Hammonds argues that breaking and entering is not a violent felony because the

definition of “building” in the North Carolina statute is broader than the generic definition.

Hammonds, however, acknowledges that we rejected this argument in Dodge. Appellant’s

Opening Brief at 26–27. Hammonds’s only response is to urge us to overturn Dodge, but

this argument runs headfirst into the well-known rule that “only the full court, sitting en

banc, can overrule” a past panel’s decision. Demetres v. East Coast West Const., Inc.,

(4th Cir. 2015). Thus, the district court did not err in concluding that

Hammonds’s breaking and entering offenses triggered a sentence enhancement.

In sum, the district court did not err in its conclusions of fact or law, and its judgment

is therefore affirmed.

AFFIRMED

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