United States v. Loughren, Eugene R. , 239 F. App'x 289 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 29, 2007
Decided August 30, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 06-4193
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 06-CR-023-C-01
EUGENE R. LOUGHREN,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
After nearly two years of investigating Eugene Loughren’s drug dealing,
police officers obtained a warrant to search his house and found methamphetamine
packaged for sale, digital scales, and firearms. Loughren was charged in federal
court and moved to suppress this evidence and other evidence gleaned from two
warrantless seizures of garbage from his house. A magistrate judge recommended
that the motion be denied, and without objection from Loughren the district court
adopted this recommendation. Loughren then pleaded guilty to conspiracy to
possess with the intent to distribute methamphetamine, see 21 U.S.C. §§ 846,
841(a)(1), reserving his right to challenge the suppression ruling on appeal. The
court sentenced him to a prison term of 140 months, a sentence that falls within the
No. 06-4193 Page 2
properly calculated guidelines range. Loughren now appeals, but his counsel seeks
to withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable
to discern any nonfrivolous argument to pursue. We invited Loughren to respond to
his counsel’s motion, see Cir. R. 51(b), but he has not done so. Our review is limited
to the potential issues identified in counsel’s facially adequate brief. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel firsts considers whether Loughren can argue that the district court
erred in denying his motion to suppress. We agree that any such challenge would
be frivolous; Loughren did not object to the magistrate judge’s recommendation,
thus waiving this potential argument on appeal. See United States v. Hall, 462
F.3d 684, 688 (7th Cir. 2006); United States v. Hernandez-Rivas, 348 F.3d 595, 598
(7th Cir. 2003). Moreover, even if Loughren could argue that the government
“waived” his waiver by entering into a conditional plea agreement, we conclude that
any challenge to the suppression ruling would still be frivolous on the merits.
The garbage searches would require little discussion. The police found
“numerous suspected drug notes” and plastic baggies, one with a white powder
residue and another that smelled of marijuana. Two police officers testified that
the garbage was awaiting collection in the publicly accessible alley behind
Loughren’s home, and we would not disturb the district court’s decision to credit the
officers’ detailed and consistent testimony. See United States v. Briggs, 273 F.3d
737, 740 (7th Cir. 2001). And because “our society would not accept as reasonable a
claim to an expectation of privacy in trash left for collection in an area accessible to
the public,” the garbage was not afforded Fourth Amendment protection. United
States v. Redmon, 138 F.3d 1109, 1114 (7th Cir. 1998) (en banc); see also California
v. Greenwood, 486 U.S. 35, 37 (1988); United States v. Segura-Baltazar, 448 F.3d
1281, 1286-87 (11th Cir. 2006); United States v. Long, 176 F.3d 1304, 1308 (10th
Cir. 1999).
As for the search of his house, Loughren argued before the magistrate judge
that the police officer who got the warrant lied in his affidavit about information
supplied by one of four informants. But Loughren never asserted that the affiant
misrepresented the statements of the other three informants who all said they
bought drugs from Loughren. One informant stated that he bought
methamphetamine from Loughren almost daily and that Loughren kept drugs at
his home. Thus, even after excising the allegedly false information, the affidavit
still established probable cause because it was based on the first-hand accounts of
the three informants, one of whom previously provided reliable information. See
United States v. Otero, Nos. 05-3132 & 05-4469, 2007 U.S. App. LEXIS 17139, *7-8
(7th Cir. July 19, 2007); United States v. Wiley, 475 F.3d 908, 915 (7th Cir. 2007).
And for that reason it would be frivolous to argue that suppression was required.
No. 06-4193 Page 3
See Franks v. Delaware, 438 U.S. 154, 171-72 (1978); United States v. Souffront, 338
F.3d 809, 822 (7th Cir. 2003).
Apart from the suppression matter, counsel also considers whether Loughren
could challenge the reasonableness of his prison sentence. Loughren’s sentence
falls within the properly calculated guidelines range, and so we would presume it to
be reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United
States v. Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006). Here, the district
court gave meaningful consideration to the factors set forth in 18 U.S.C. § 3553(a),
see United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006), including Loughren’s
family situation, his heavy use of methamphetamine, the amount of drugs involved
in the conspiracy, and his employment record. Counsel is unable to articulate any
basis for arguing that the sentence imposed is unreasonable, and we agree that any
such argument would be frivolous.
Finally, we agree with counsel that if Loughren wishes to argue that trial
counsel was ineffective for refusing to object to the magistrate judge’s
recommendation or other reasons, he would be better served by bringing that claim
through a collateral proceeding under 28 U.S.C. § 2255. See, e.g., Massaro v. United
States, 538 U.S. 500, 504-05 (2003); United States v. Turcotte, 405 F.3d 515, 537
(7th Cir. 2005).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.