United States v. Eli Jones, Jr. ( 2010 )

NONPRECEDENTIAL DISPOSITION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 May 25, 2010
Decided May 26, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09-2708
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin
v. No. 09-CR-19-001
ELI JONES, JR., J. P. Stadtmueller,
Defendant-Appellant. Judge.
ORDER
An informant’s tip led police to get a warrant and search the home of Eli Jones, Jr., a
felon, where they found a loaded gun on his night stand. After the district court denied his
motion to suppress the gun, Jones entered a conditional guilty plea to possession of a
firearm, 18 U.S.C. § 922(g)(1), in which he preserved his right to challenge the suppression
ruling. He was sentenced to 48 months’ imprisonment, 9 months below the advisory range
of 57 to 71 months. Jones filed a notice of appeal, but his appointed lawyers seek to
withdraw under Anders v. California, 386 U.S. 738 (1967), because they cannot identify any
nonfrivolous argument to pursue. Jones did not respond to counsel’s motion to withdraw,
No. 09-2708 Page 2
see C IR. R. 51(b), so we limit our review 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).
The warrant to search Jones’s home was based on the affidavit of Officer Timothy
Bandt. Bandt attested that a confidential informant with extensive knowledge of different
types of firearms had seen Jones armed with a black, semi-automatic pistol at Jones’s home
within the last two weeks. Bandt also explained that the informant correctly picked Jones
out of a photographic lineup and knew Jones’s name, his exact address, and the location’s
physical layout. Moreover, according to Bandt, the informant had previously identified for
the police other locations containing firearms and illegal drugs, with two of the informant’s
tips leading to arrests and prosecutions. The informant did not, however, explain how he
knew Jones, why he was at the home, or where within the home he saw the gun.
Jones moved to suppress the gun on the ground that the affidavit did not provide
probable cause. The district court denied Jones’s motion, finding that there was probable
cause, and that even if there were not, suppression would be unjustified because the police
relied on the warrant in good faith.
At sentencing the district court assessed a base offense level of 24, see U.S.S.G
§ 2K2.1(a)(2), and deducted 3 levels for acceptance of responsibility, see U.S.S.G. § 3E1.1(a),
(b). Jones’s prior convictions gave him 6 criminal history points, and he received 2 more for
possessing the gun while he was on parole, see U.S.S.G. § 4A1.1(d), thus producing a
criminal history category of IV. That category, combined with his adjusted offense level,
yielded a guidelines range of 57 to 71 months. In selecting a sentence 9 months below the
bottom of that range, the district court credited Jones’s contention that he had confiscated
the gun from his daughter’s boyfriend to keep the boyfriend out of trouble. Still, the court
explained, the offense was serious because Jones knew he should have gone to the police
instead of taking matters into his own hands and keeping the gun, and because the loaded
gun endangered the children in his home.
Counsel first consider contesting whether probable cause supports the warrant. The
warrant’s validity rests solely on the affidavit’s strength in supplying a reasonable basis for
believing that a search will uncover evidence of a crime. See United States v. Peck, 317 F.3d
754, 755 (7th Cir. 2003); United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967). In assessing
that affidavit, we would consider the totality of circumstances, including the level of detail
provided by the informant and whether those details are based on personal observations,
the time interval between the observations and the warrant application, the informant’s
personal appearance before the warrant-issuing judge, and any corroboration of the
informant’s tip. United States v. Hollingsworth, 495 F.3d 795, 804 (7th Cir. 2007); United States
No. 09-2708 Page 3
v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002). No factor is determinative, and an insufficiency
in one could be compensated for by some other indicator of reliability. United States v.
Dismuke, 593 F.3d 582, 587 (7th Cir. 2010); United States v. Brack, 188 F.3d 748, 756 (7th Cir.
1999). In performing this inquiry, we would afford “great deference” to the issuing
magistrate’s conclusion. Dismuke, 593 F.3d at 586 (citing United States v. McIntire, 516 F.3d
576, 578 (7th Cir. 2008), cert. denied, 129 S. Ct. 73 (2008)).
Here, with deference to the issuing magistrate and for the same reasons that we
gave in Dismuke, the affidavit contains enough details to support probable cause. As in
Dismuke, the affidavit explains that the informant personally saw the defendant armed in
his home shortly before the warrant application, that he knew Jones’s exact address and
what he looked like, and that the informant knew how to distinguish among firearm types.
The affidavit’s infirmities—a lack of detail about the precise location of a gun inside the
home or the relationship between informant and suspect, together with the informant’s
failure to appear before the magistrate—are the same as those that infected the warrant we
upheld in Dismuke. See 593 F.3d at 587-88. But the indicia of reliability here are stronger
than for the warrant we upheld in Dismuke because the informant in this case also had
previously given useful tips to police. See United States v. Garcia, 528 F.3d 481, 486 (7th Cir.
2008), cert. denied, 129 S. Ct. 422 (2008). Thus, we agree with counsel that it would be
frivolous to contest the existence of probable cause.
Counsel also consider challenging the district court’s alternative ruling that, even if
the affidavit were deficient, the officers’ good-faith reliance on the warrant should keep the
gun from being excluded. See United States v. Leon, 468 U.S. 897 (1984); United States v.
Otero, 495 F.3d 393, 398 (7th Cir. 2007). Such a challenge would matter only if we
concluded that probable cause was lacking. In any event, the affidavit was not so devoid of
cause to search that no reasonable officer would rely on it, so Jones could not rebut the
presumption of good faith created by the officers’ decision to seek a warrant. See Dismuke,
593 F.3d at 588 (“[U]nder the good-faith exception, the suppression of the fruits of the
search would not be appropriate in a close case” similar to Jones’s); United States v. Curry,
538 F.3d 718, 730 (7th Cir. 2008); United States v. Stevens, 380 F.3d 1021, 1025 (7th Cir. 2004).
Next, counsel observe that Jones does not wish to withdraw his conditional guilty
plea. Thus counsel rightly omit any discussion of the plea’s validity. See United States v.
Knox, 287 F.3d 667 (7th Cir. 2002).
Finally, counsel question whether Jones could argue that his sentence was
procedurally flawed or otherwise unreasonable. But, as counsel recognize, the district
court calculated the range correctly, considered the sentencing factors listed in 18 U.S.C.
No. 09-2708 Page 4
§ 3553(a), and adequately explained its reasons for imposing a sentence 9 months below the
bottom of the advisory range. See Gall v. United States, 552 U.S. 38 (2007); United States v.
Turner, 569 F.3d 637, 640 (7th Cir. 2009), cert. denied, 130 S. Ct. 654 (2009). We would
presume that a sentence below the correctly calculated guidelines range is not
unreasonably high, United States v. Jackson, 598 F.3d 340, 345 (7th Cir. 2010) (collecting
cases), and neither counsel nor we have found a basis to set aside that presumption here.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Jones’s
appeal.