Flake

MEMORANDUM *

Roger Flake appeals his conviction and sentence after entering a conditional guilty plea to one count of possession of child pornography in violation of 21 U.S.C. § 2252 (a)(5)(B). Flake asserts three grounds of relief. First, Flake argues that the district court erred in denying his request for a Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978), hearing because Santa Barbara Police Officer Daniel McGrew recklessly made false and material statements in support of the request for a search warrant for Flake’s residence. Second, with respect to his sentence, Flake contends that the district court erred in concluding that it did not have the authority to depart downward on the basis of the time that he had been held in state custody on related charges. Finally, Flake argues that he is entitled to resentencing because the district court improperly denied him the right of allocution. Because we agree that Flake was entitled to a Franks hearing and that the district court erred in denying him the right of allocution, we vacate the district court’s sentence and remand for a Franks hearing, and possibly for re-sentencing.

A. Franks Hearing

Under…

concurring in part, dissenting in part.

I concur in parts B and C of the majority’s opinion, but respectfully dissent from the court’s remand for a Franks hearing. The unchallenged testimony and evidence presented in December 1999 by both Officer Daniel McGrew and Detective Michael McGrew is still sufficient, in my judgment, to support issuance of a search warrant for child pornography in the defendant’s home. The false statements were not “necessary to the finding of probable cause.” See Franks v. Delaware, 438 U.S. 154, 156 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978).

First, Flake had recently driven by and conversed with a 12-year-old girl on her way home from school in Santa Barbara, twice asking for directions and once offering her money. Second, Flake matched the suspect description and was the registered owner of a car bearing the same license plate number of a man who exposed his penis and offered money to two small children in National City, California, one day after the last Santa Barbara approach. Third, Flake had previously been convicted in 1991 of forced oral copulation in his car with a 19-year-old female hitchhiker. Finally, Flake had closed his laptop quickly when…