United States v. Terasence Mitten ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1758
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T ERASENCE S TEVEN M ITTEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-CR-40049—Michael M. Mihm, Judge.
A RGUED N OVEMBER 13, 2009—D ECIDED JANUARY 20, 2010
BeforeK ANNE and T INDER, Circuit Judges, and
G RIESBACH, District Judge. 1
G RIESBACH, District Judge. On July 1, 2008, police
officers executed a search warrant on Apartment H14 of
the Maple Ridge apartment complex in Rock Island,
Illinois. The apartment was leased by the girlfriend of
1
Hon. William C. Griesbach, District Judge for the Eastern
District of Wisconsin, sitting by designation.
2 No. 09-1758
defendant Terasence Mitten, and when the officers
knocked on the door and announced their purpose for
being there, Mitten attempted to barricade the door. The
officers gained entry and found approximately 20 grams
of crack cocaine and a loaded handgun.
Mitten was charged in a two-count indictment with
possession of five grams or more of crack cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(B), and unlawful possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). After unsuccessfully moving to
suppress the evidence seized from the apartment, Mitten
entered a conditional guilty plea to the drug charge,
reserving his right to appeal the district court’s order
denying his motion to suppress, and proceeded to trial
on the firearm charge. A jury found him guilty, and the
district court sentenced him to a total of fifteen years in
prison—120 months on the drug charge and 60 months,
consecutive, on the firearm charge. On appeal, Mitten
contends that (1) the district court erred in denying his
motion to suppress; (2) the evidence was insufficient
to support his conviction on the firearms charge; and
(3) the district court erred in imposing a consecutive
sentence pursuant to 18 U.S.C. § 924(c)(1)(A). We reject
all three challenges and affirm both his conviction
and the sentence.
I.
Mitten first claims that the district court erred in
denying his motion to suppress the evidence seized in
No. 09-1758 3
his girlfriend’s apartment. In its decision denying the
motion, the district court agreed with Mitten that the
affidavit submitted in support of the warrant was insuffi-
cient to establish probable cause and therefore held the
warrant invalid, a holding the government does not here
contest. The district court went on to conclude, however,
that the evidence seized by police was admissible under
the good faith exception to the exclusionary rule adopted
by the Supreme Court in United States v. Leon, 468 U.S.
897 (1984). Mitten argues that the evidence obtained
under the invalid warrant should have been excluded
and that the district court erred in concluding that the
good faith exception applied under the facts of this case.
The exclusionary rule is intended to vindicate rights
guaranteed by the Fourth Amendment by excluding
consideration at trial of illegally obtained evidence. The
exclusion of relevant and highly probative evidence,
however, interferes with the criminal justice system’s
truth-finding function, and thus application of the rule
can permit guilty defendants to go free. Stone v. Powell,
428 U.S. 465, 490 (1976). In light of the substantial societal
costs of the rule, and recognizing that the primary, if
not sole, justification for the exclusionary rule is the
deterrence of police misconduct, the Supreme Court held
in Leon that suppression of evidence is not an appropriate
remedy when the officers who obtained the evidence
did so in good faith reliance upon a facially valid warrant
issued by a magistrate or judge. 468 U.S. at 922 (“We
conclude that the marginal or nonexistent benefits pro-
duced by suppressing evidence obtained in objectively
reasonable reliance on a subsequently invalidated search
4 No. 09-1758
warrant cannot justify the substantial costs of exclusion.”).
It is that exception that the district court found applicable
here. It concluded that even though the warrant was
invalid, the officers acted in good faith reliance upon
its validity.
This Court reviews the district court’s ultimate legal
conclusion that the officer reasonably relied upon
a warrant later found to be invalid under the de novo
standard of review. United States v. Koerth, 312 F.3d 862,
865 (7th Cir. 2002). In deciding whether an officer was
acting in good faith, the fact that the officer sought to
obtain a warrant is prima facie evidence that he was
acting in good faith. United States v. Bell, 585 F.3d 1045,
1052 (7th Cir. 2009) (citing Leon, 468 U.S. at 921 n. 21).
The presumption of good faith that thereby arises, how-
ever, can be rebutted if the defendant shows that “(1) the
judge issuing the warrant abandoned his detached and
neutral role; (2) the officer was dishonest or reckless
in preparing the affidavit; or (3) the warrant was so
lacking in probable cause that the officer’s belief in its
existence was entirely unreasonable.” United States v.
Garcia, 528 F.3d 481, 487 (7th Cir. 2008).
Mitten does not argue that the issuing judge
abandoned his detached and neutral role and merely
rubber-stamped the warrant; nor does he argue that
Officer Eddie Connelly, the officer who obtained the
warrant, was reckless or dishonest in preparing the
supporting affidavit. Instead, he argues that Officer
Connelly’s affidavit was so clearly deficient that no officer
could reasonably rely upon it as authorization to search
No. 09-1758 5
Apartment H14.2 Mitten contends that the affidavit was
essentially “bare bones” and rested upon conclusory,
uncorroborated, and stale accounts of criminal activity
from two confidential informants whose reliability was
never established. “Bare bones” affidavits such as
Officer Connelly’s, Mitten argues, “should not be
protected by the good faith exception.” Brief of Defen-
dant-Appellant at 27.
Though not a model of clarity or draftsmanship, we
do not accept Mitten’s characterization of Officer
Connelly’s six-and-a-half-page affidavit as “bare bones.”
Nor is it based solely upon stale accounts from
confidential informants lacking all indicia of reliability.
Officer Connelly’s recitation of the facts supporting his
application for a search warrant for the apartment of
Mitten’s girlfriend begins with a traffic stop on
November 19, 2007, more than seven months before the
search. Mitten and Robert J. White were arrested after
small amounts of marijuana, powder cocaine and five
individually wrapped crack cocaine rocks were found in
a car they were driving. The car was owned by a local
auto dealer, and Mitten had placed $1,000 cash down
on the car sometime earlier. Mitten took responsibility
for the drugs and was subsequently placed on probation.
At that time, Mitten claimed that both he and White
lived with Mitten’s mother in Moline, Illinois.
2
The same affidavit was used to obtain a search warrant for
Mitten’s mother’s house at 733 13th Street in the City of Moline.
The issuance of that warrant is not at issue in this appeal.
6 No. 09-1758
The affidavit next recites that Officer Connelly was
told by a confidential source (CS-1), who admitted that
he had been dealing crack cocaine for approximately
three months, that he purchases all of his crack cocaine
from the same drug dealer at Apartment H14 of the
Maple Ridge apartment complex. CS-1 told Officer
Connelly that the drug dealer drove a tan Buick Park
Avenue, which matched the description of one of the
vehicles Mitten had been seen driving by surveillance
officers. When shown a picture of Mitten, CS-1 positively
identified him as the person from whom he had been
buying crack at the Maple Ridge apartment. Officer
Connelly noted that Krystal Phillips was listed as the
renter of Apartment H14, and the utilities for that
address were billed to her name.
A second confidential source (CS-2), who admitted he
had been dealing narcotics for over ten years, told police
that in May 2008 he purchased a distribution amount of
crack cocaine in an apartment located in the H building
of the Maple Ridge apartment complex where a black
female known as Krystal lives. CS-2, whom Officer
Connelly stated had provided truthful and accurate
information that led to at least one additional arrest in
the past, also stated that White was present during the
transaction.
Officer Connelly’s affidavit goes on to recount that
Mitten and White were again stopped by police on May
29, 2008, while driving a tan 1994 Buick Park Avenue,
which Mitten claimed to own. White was arrested on an
outstanding warrant for Aggravated Fleeing and
No. 09-1758 7
Eluding, and in a search of the vehicle incident to the
arrest, police found a small amount of cannabis and
$13,235 in U.S. currency, most of which was found under
the front passenger seat, but $2,315 of which was found
in Mitten’s possession. Police found twenty to thirty
mini “zip-loc” baggies on White. Mitten claimed he was
on his way to Chicago, but was headed toward the
Maple Ridge apartments because he intended to stop
and say goodbye to his girlfriend Krystal Phillips first.
Mitten acknowledged that the small amount of cannabis
was his and subsequently admitted that he sold cannabis.
Mitten and White claimed that the mini “zip-loc” baggies
found on White were for the sale of nickel bags, or
non-felony amounts, of cannabis. With respect to the
large amount of money found under the passenger
seat, Mitten stated that White placed it there when he got
in the vehicle, but Mitten apparently denied any further
knowledge about where the money came from because
it was “none of his business.” White was apparently
unaware of the total amount of money found in the
vehicle, and stated he received $4,000 from his father
and $4,500 from his mother to buy a car. When police
later telephoned them, however, both of White’s parents
denied they had given him such an amount of money.
Officer Connelly also noted in his affidavit that based
on his own experience as a drug investigator, mini
“zip-loc” baggies such as those found in White’s posses-
sion are consistent with the sale of crack cocaine or
heroin, not cannabis.
The affidavit describes a search of a trash bag left
outside of Mitten’s mother’s house in Moline, where
8 No. 09-1758
Mitten claimed he and White lived, on June 3, 2008.
Police found a letter addressed to Mitten from his auto
insurance carrier and a single joint containing cannabis
among the items of trash.
Finally, Officer Connelly recounted police surveillance
reports of Mitten on the evening of June 12, 2008, as he
was driving a white 1999 Buick Park Avenue registered
to Krystal Phillips with White as a passenger. Police
followed Mitten as he drove in and around Moline in
the area of his mother’s house and then in the vicinity of
the Maple Ridge apartments in Rock Island. The routes
taken by Mitten and the number and nature of stops he
made along the way led the officers to conclude Mitten
was doing countersurveillance to avoid being detected
by police.
Although the affidavit recites additional facts, they
add little if any weight to the probable cause determina-
tion. From what we have recounted, however, it should
be clear that the warrant was not “bare bones.” As
the district judge noted, it clearly established a pattern
of drug-related activity involving Mitten. In fact, Officer
Connelly’s affidavit contains evidence that Mitten ad-
mitted as much during the May 29 traffic stop, claiming
he sold small amounts of marijuana. Of course, the
other evidence described in the affidavit supports the
inference that Mitten and White were selling more than
small amounts of marijuana. The mini “zip-loc” baggies
found on White during the May 29 traffic stop were
consistent with crack or heroin sales, not marijuana, and
the amount of money found in their possession suggested
No. 09-1758 9
more than occasional sales. Considered together with
the fact that at the November 19, 2007 stop, some six
months earlier, five individually wrapped crack cocaine
rocks were found on Mitten’s person and the statements
of the confidential sources, the totality of evidence re-
counted strongly suggests that they were crack dealers.3
The district court also noted, however, that there were
problems with the affidavit. There was no indication that
CS-1 had previously provided reliable information to
police, and the affidavit was silent as to when CS-1 made
his crack purchases from Mitten at the Maple Ridge
apartment. Although CS-2 is said to have provided
truthful and accurate information in the past that led to
one additional arrest, the affidavit does not describe
the nature of the information that was provided, or say
how long ago it was provided. CS-2 did state that the
transaction at the Maple Ridge complex occurred
during the month of May 2008, but does not give a
specific date. CS-2 also failed to specify the apartment
number where the transaction occurred, instead
describing it as an apartment in the H building of the
Maple Ridge complex where a woman named Krystal
lived. In the view of the district court, this information
was insufficient to establish a connection between
evidence of criminal drug dealing by Mitten and White,
on the one hand, and Apartment H14 of the Maple Ridge
3
The district judge also observed that “when people are
carrying around multiple individually wrapped rocks of
crack, they’re normally for sale.”
10 No. 09-1758
complex on the other. The district court further
concluded, however, that the affidavit was not so
lacking that Officer Connelly’s belief that it established
probable cause was entirely unreasonable.
We agree with the district court that Mitten failed to
rebut the presumption that Officer Connelly relied on
the warrant in good faith. The deficiencies noted in the
affidavit are not so egregious as to render his belief in the
warrant’s validity unreasonable. Mitten argues that
Connelly’s affidavit recites only two instances in which
drug dealing is alleged to have taken place at Phillips’
apartment, and that both are based upon information
provided by two separate confidential informants “whose
conclusory accounts of criminal activity at the premises
are wholly uncorroborated, and whose reliability, veracity
and basis for knowledge are unestablished.” Brief of
Defendant-Appellant at 24. But this is not true. Although
only two confidential informants provided information
about drug dealing taking place at Phillips’ apartment, the
information was about more than two occurrences. CS-1
stated that he made all of his crack purchases over the
three-month period he was dealing crack at Apartment
H14 at the Maple Ridge Apartments. He positively identi-
fied Mitten as his source from a photograph, and
described the kind of car he had seen Mitten driving. CS-2
likewise stated he had purchased a distribution quantity
of crack from an apartment in Building H sometime
during the month of May 2008. The additional facts that
a woman named Krystal was the renter of the apartment
and that White was present during the transaction are
sufficient to give rise to a reasonable inference that
this transaction also took place in Apartment H14.
No. 09-1758 11
It is true that the affidavit lacks any information about
CS-1’s history of providing truthful information, and the
one instance cited in regard to CS-2 is vague. In applying
for search warrants, however, police are not limited to
relying only on informants with proven track records of
providing truthful information. Past performance is one
way of establishing the veracity or reliability of an infor-
mant, but it is not the only way. The reliability or
veracity of an informant in a particular case can also be
shown by corroboration of the information he provides
through independent police investigation. Illinois v. Gates,
462 U.S. 213, 241 (1983). Indeed, Gates held that even
information from a single anonymous informant can be
corroborated to the degree needed to establish probable
cause for the issuance of a search warrant. Here, there
was not one informant who claimed to have purchased
drugs out of Mitten’s girlfriend’s apartment, but two, and
neither was anonymous; police knew their identities.
Each informant’s statement that he purchased crack at
the apartment generally corroborated the other’s, and
both in turn were corroborated, at least in part and in
general, by the additional information independently
obtained by police that indicated that Mitten and
White were involved on an ongoing basis with
distributing drugs, and that Mitten had a close relation-
ship with Phillips. See United States v. Wiley, 475 F.3d 908,
916-17 (7th Cir. 2007) (holding that notwithstanding
absence of statement attesting to credibility of informant,
general corroboration by other information, including
information from separate informant, was sufficient
to establish probable cause.).
12 No. 09-1758
It is also noteworthy that the statement of each
informant appears to have been contrary to his penal
interests, at least on the surface. In effect, each admitted
that he was not simply a crack user, but a crack dealer, a
serious crime under both state and federal law. Statements
against penal interest have also been viewed as carrying
some indicia of reliability:
Admissions of crime, like admissions against propri-
etary interests, carry their own indicia of credibil-
ity-sufficient at least to support a finding of probable
cause to search. That the informant may be paid or
promised a ‘break’ does not eliminate the residual
risk and opprobrium of having admitted criminal
conduct. Concededly admissions of crime do not
always lend credibility to contemporaneous or later
accusations of another. But here the informant’s
admission that over a long period and currently he
had been buying illicit liquor on certain premises,
itself and without more, implicated that property
and furnished probable cause to search.
United States v. Harris, 403 U.S. 573, 583-84 (1971). To be
sure, it is probable that both informants in this case
provided their information after they had been arrested
for selling crack and were motivated by a desire to
lessen the consequences they would likely suffer for
their own crimes. That is almost always the case in drug
investigations, but it does not make the information
they provide inherently unreliable. See United States v.
Olson, 408 F.3d 366, 371 (7th Cir. 2005) (“A motive to
curry favor, however, does not necessarily render an
No. 09-1758 13
inform ant unreliable. Indeed, even inform ants
‘attempt[ing] to strike a bargain with the police [have] a
strong incentive to provide accurate and specific informa-
tion rather than false information about [a defendant’s]
illegal activity.’ ”) (quoting Koerth, 312 F.3d at 870). The
sought-after reward from law enforcement in such cases
is generally contingent upon the information provided
by such an informant being accurate and useful.
Finally, the fact that each informant claimed to have
purchased the crack himself describes the basis for his
knowledge, i.e., personal observation. Though light on
details, neither source’s account can be accurately charac-
terized as wholly conclusory, that is, consisting of a bare
conclusion with no factual basis. See Gates, 462 U.S.
at 239. Implicit, at least inferentially, in Officer
Connelly’s affidavit is the assertion that each of these
experienced crack dealers reported to a police officer
that he personally went to Apartment H14 where he
purchased a significant quantity of a substance he recog-
nized as crack cocaine. Mitten’s statement to police
during the May 29 traffic stop that he was on his way to
his girlfriend Phillips’ apartment, and the police surveil-
lance reports stating that he was seen driving Phillips’
car show the close connection between the two that,
together with the informants’ accounts, makes probable
the notion that Mitten and White had sold crack out
of Phillips’ apartment.
Perhaps the most serious deficiency in the affidavit
submitted by Officer Connelly is the age of the infor-
mation, especially the information relating to Apartment
14 No. 09-1758
H14. It is not enough to establish probable cause that
the apartment at one time contained contraband or evi-
dence of a crime. Probable cause to search, except in the
case of anticipatory search warrants, exists “only if it
is established that certain identifiable objects are
probably connected with certain criminal activity and are
probably to be found at the present time in a certain
identifiable place.” 2 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 3.7(a) at 371
(4th ed. 2004). Officer Connelly obtained the warrant on
June 27, 2008. Yet, there was no date given for when CS-1
purchased crack out of the apartment, and CS-2
reported only one purchase on an unspecified date in
May. The most recent information set forth in the
affidavit consisted of the June 12, 2008, report
that Mitten and White seemed to be conducting
countersurveillance as they drove in the area of the
Maple Ridge apartment complex in Rock Island and
Mitten’s mother’s house in Moline. Mitten argues that the
information contained in Officer Connelly’s affidavit, even
if sufficient to establish probable cause that crack was
previously sold out of Phillips’ apartment, was too stale
to support a finding of probable cause that the
evidence sought would likely be found there on June 27,
2008, when the warrant was issued, or July 1, 2008, when
it was finally executed.
Even this deficiency, however, does not convince us
that Officer Connelly’s reliance on the warrant was unrea-
sonable. As noted above, the evidence recounted in the
affidavit indicates an ongoing pattern of drug dealing by
Mitten and White. It is well established that the “[p]assage
of time is less critical when the affidavit refers to facts that
No. 09-1758 15
indicate ongoing continuous criminal activity.” United
States v. Pless, 982 F.2d 1118, 1125-26 (7th Cir. 1992); see
also United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir.
1991) (“Indeed, at least one circuit has recognized that
probable cause may be found ‘several weeks, if not
months,’ after ‘the last reported instance of suspect
[drug-trafficking] activity.’ ”) (quoting United States v.
Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986)).
It is in this respect that this case differs from United
States v. Owens, 387 F.3d 607 (7th Cir. 2004), a case
Mitten cites in support of his argument that the
evidence was too stale to support a finding of probable
cause. In Owens the Court held that an affidavit that
merely stated that three months earlier an informant
had purchased an unspecified amount of crack cocaine
from the defendant at a house believed to be his
residence was insufficient to support the warrant that
was issued. The Court found the affidavit so inadequate
that the good faith exception could not even be applied
to save the search because the officers who conducted
the search could not have reasonably believed it was
valid. Id. at 608. Unlike this case, however, there was
no evidence in Owens that the sale was anything other
than an isolated occurrence; there was no evidence of
ongoing criminal activity. Instead, this case is more like
United States v. Spry, 190 F.3d 829 (7th Cir. 1999), where
the Court upheld a warrant issued in February 1998
based on an affidavit recounting evidence seized from
the defendant’s home under a May 1997 warrant,
together with reports from multiple informants that the
defendant continued to traffic in drugs following her
1997 arrest. “[N]either the uncertainty of the reliability
16 No. 09-1758
of the informants, nor the age of the information in the
warrant affidavit,” the Court concluded, “should give
this Court cause to overrule and hold that the district
court committed error in finding that probable cause
existed to support the 1998 search warrant.” Id. at 836.
In this case, of course, the issue of the warrant’s validity
is not before us. The government has not challenged the
district court’s determination that the state judge who
issued the warrant lacked “a substantial basis for con-
cluding that probable cause existed,” Gates, 462 U.S. at
238-39 (internal quotes and brackets excluded), and we
see no reason to disturb that ruling. The issue before us
is whether the affidavit was so lacking in probable
cause that Officer Connelly could not have believed the
warrant valid. For the reasons explained above, we
hold that it was not.4 We therefore affirm the district
court’s order denying Mitten’s motion to suppress.
II.
As noted above, following the district court’s denial of
his motion to suppress, Mitten entered a guilty plea to
the crack cocaine charge and proceeded to trial on the
4
It is also noteworthy that Officer Connelly sought and
obtained the approval of the Rock Island County Assistant
State’s Attorney before presenting his warrant request to the
state judge who issued it. See United States v. Merritt, 361 F.3d
1005, 1012 (7th Cir. 2004) (“Agent Vergon’s consultation with
the AUSA particularly supports the finding that his reliance
upon the warrant was objectively reasonable.”), vacated on
other grounds, 543 U.S. 1099 (2005).
No. 09-1758 17
charge that he had possessed a firearm in furtherance of
a drug trafficking offense in violation of 18 U.S.C. § 924(c).
The jury returned a verdict of guilty, and Mitten claims
the evidence was insufficient to support the verdict. He
contends that the evidence adduced at trial was
insufficient to establish beyond a reasonable doubt that
he possessed a firearm “in furtherance” of his drug traf-
ficking. The mere fact that a gun was found in the apart-
ment, he argues, is insufficient to prove that he
possessed a firearm in furtherance of his drug trafficking
crime.
Mitten has a heavy burden in seeking to overturn a
jury’s verdict. “A defendant attacking the sufficiency of
the evidence used to convict him faces a nearly insur-
mountable hurdle.” United States v. Morris, 576 F.3d 661,
665-66 (7th Cir. 2009) (internal quotes and citations omit-
ted). We view the facts in the light most favorable to
the verdict, United States v. Calabrese, 572 F.3d 362, 364
(7th Cir. 2009), and will reverse only if no rational juror
could have found guilt beyond a reasonable doubt.
Morris, 576 F.3d at 666 (citations omitted). Mitten has
not met his burden here.
At the outset, we agree with Mitten that the mere
presence of a firearm in a dwelling where drugs have
been sold is insufficient to prove the “in furtherance”
element of Section 924(c). This Court has repeatedly
held that “there must be a showing of some nexus
between the firearm and the drug selling operation.”
United States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005); see
also United States v. Vaughn, 585 F.3d 1024, 1029 (7th Cir.
2009); United States v. Fouse, 578 F.3d 643, 650-51 (7th Cir.
18 No. 09-1758
2009). We recognize that “a possessed gun can forward
a drug-trafficking offense by providing the dealer, his
stash or his territory with protection.” Duran, 407 F.3d at480 (citing United States v. Castillo, 406 F.3d 806, 814-18 (7th
Cir. 2005); United States v. Luciano, 329 F.3d 1, 6 (1st Cir.
2003)). On the other hand, it is important to distinguish
between the type of possession targeted by the statute
and the “ ‘innocent possession of a wall-mounted antique
or an unloaded hunting rifle locked in a cupboard.’ ”
Duran, 407 F.3d at 840 (quoting United States v. Mackey, 265
F.3d 457, 461 (6th Cir. 2001)). To aid in distinguishing
between the criminal “possession-in-furtherance” covered
by Section 924(c) and the innocent possession that
falls outside its scope, the Duran Court suggested con-
sideration of a series of factors set out by the Fifth
Circuit in United States v. Ceballos-Torres, 218 F.3d 409,
414-15 (5th Cir.), modified on denial of rehearing, 226 F.3d
651 (5th Cir. 2000). They include “the type of drug
activity that is being conducted, accessibility of the
firearm, the type of the weapon, whether the weapon is
stolen, the status of the possession (legitimate or illegal),
whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the
gun is found.” Duran, 407 F.3d at 480 (quoting
Ceballos-Torres, 218 F.3d at 414-15). Ultimately, common
sense must be the guide. Duran, 407 F.3d at 480.
Based on our consideration of the Ceballos-Torres
factors here, we conclude that the evidence was suf-
ficient to support the verdict. The evidence established
that Mitten had been dealing crack cocaine, which has
long been recognized as a dangerous pursuit often re-
quiring firearms protection. The firearm found in the
No. 09-1758 19
apartment was a 9mm handgun which is easily
concealed and transported. The gun was located on the
top shelf of a closet about five feet down a hallway
from more than $6,000 worth of drugs, additional cash,
and scales. It was loaded with a round in the chamber.
Police found a plastic Pepsi bottle with a concealed com-
partment on the same shelf as the gun and a cigar box
containing $176 on the second shelf. Finally, Mitten
possessed the weapon illegally. The fact that the
firearm was not stolen is the only Duran factor that
favors Mitten. The absence of this single factor, however,
is hardly a basis for overturning the jury’s verdict.
Mitten argues that the evidence is nevertheless insuffi-
cient because “no testimony was presented that [he] ever
sold drugs from the apartment, or that the handgun
was readily accessible to him, or that he ever possessed
the handgun during any drug transaction.” Brief of
Defendant-Appellant at 33. He also points to his
post-arrest explanation for why he had the gun. Mitten
told police that he had the gun at the apartment
because Rock-Island’s citizens did not like people from
Chicago and that he was having problems with a
particular person. Id.Mitten’s argument is unconvincing. His drug trafficking
crime was possession of crack cocaine with intent to
distribute. It is in furtherance of that crime that the gov-
ernment charged him with possession of a firearm. Thus,
the fact that the government presented no testimony
at trial that he ever sold drugs from the apartment or
carried the gun with him during actual sales is irrelevant.
There is no requirement that a drug dealer have the gun
20 No. 09-1758
in his possession during uncharged sales in order for his
possession of a firearm to be in furtherance of the crime
of possession of crack with intent to distribute. DEA
Special Agent Jon Johnson testified that “[d]rug traffickers
will commonly possess firearms to protect their product,
to protect their drugs, to protect their cash, to protect
their life and even to protect their turf.” Even if the
jury heard no evidence that Mitten sold drugs at the
apartment, it did know that more than $6,000 worth
of drugs and additional money was in the apartment on
the day the warrant was executed. Drug dealers deal
with people who are often desperate and violent. They
cannot rely upon local law enforcement to protect their
illegal product or profits. In light of these facts, it was
reasonable for the jury to infer that Mitten’s possession
of the gun was intended for the protection of his money
and his stash. And, of course, the jury was not required
to accept Mitten’s post-arrest explanation as to why he
had the gun. There were ample grounds to question
his credibility.
Mitten also cites United States v. Iiland, 254 F.3d 1264(10th Cir. 2001), in support of his argument that the
evidence was insufficient to prove the “in furtherance”
element of Section 924(c). In Iiland the Tenth Circuit
reversed a Section 924(c) conviction of a drug dealer that
was based upon a firearm that was found in his apartment
during a search. In Iiland, however, the defendant’s
drugs were found in a separate storage unit, and the
government offered no evidence the drugs and gun were
ever kept at the same place or that the gun was ever
accessible when the defendant conducted a drug transac-
tion. Id. at 1274. Here, by contrast, the loaded gun was
No. 09-1758 21
found in the same apartment and in close proximity to
drugs and money. In fact, it was found in a closet along-
side a Pepsi bottle with a hidden compartment and
above another shelf where a cigar box containing $176
was found. The jury here had sufficient evidence to
conclude that the gun was possessed in furtherance of
the drug trafficking crime, and its verdict cannot be
disturbed.
III.
Mitten’s final claim is that the district court erred in
construing 18 U.S.C. § 924(c) as mandating a consecutive
sentence of at least five years under the circumstances
of this case. Relying on the Second Circuit’s decision in
United States v. Whitley, 529 F.3d 150 (2008), and that
circuit’s even more recent decision in United States v.
Williams, 558 F.3d 166 (2d Cir. 2009), Mitten argues that
the fact that his underlying drug trafficking crime
carried a minimum sentence of ten years exempts him
from the consecutive five-year sentence mandated by
Section 924(c)(1)(A)(i) where the minimum sentence for
the underlying crime is less.5
5
Possession of five grams or more of crack cocaine with intent
to distribute carries a minimum sentence of 5 years imprison-
ment and a maximum of 40 years if the defendant has not
previously been convicted of a felony drug offense. Because
Mitten had previously been convicted of a felony drug
offense, he faced a minimum sentence of 10 years and a maxi-
mum of life. 21 U.S.C. § 841(b)(1)(B).
22 No. 09-1758
As Mitten acknowledges, this Court rejected Whitley’s
interpretation of Section 924(c) in United States v. Easter,
553 F.3d 519 (7th Cir. 2009), as has every other circuit that
has addressed the issue. See United States v. Segarra,
582 F.3d 1269 (11th Cir. 2009) (rejecting claim that con-
secutive sentences for convictions of §§ 841 and 924(c)
unlawful); United States v. Parker, 549 F.3d 5 (1st Cir.
2008) (affirming consecutive sentences for convictions of
§§ 841, 846 and 924(c)); United States v. Jolivette, 257 F.3d
581 (6th Cir. 2001) (affirming consecutive sentences for
armed bank robbery and § 924(c) convictions); United
States v. Studifin, 240 F.3d 415 (4th Cir. 2001) (affirming
consecutive sentences for robbery and § 924(c)); United
States v. Alaniz, 235 F.3d 386 (8th Cir. 2000) (affirming
consecutive sentences for convictions of §§ 841 and 924(c)).
We decline Mitten’s invitation to revisit an issue this
Court decided only a year ago. Not only was the Second
Circuit’s interpretation of Section 924(c) in Whitley fully
addressed by a three-judge panel of this Court in Easter,
but a majority of the active judges also voted to deny a
petition for a rehearing of the case en banc. 7th Cir. R. 40(e).
For the reasons set forth by this Court in Easter, we
hold that Mitten was not exempt from the consecutive
term of imprisonment mandated by Section 924(c). The
district court correctly concluded that a sentence of at
least five years, consecutive to Mitten’s drug trafficking
crime, was mandated.
No. 09-1758 23
IV.
In conclusion, we hold that Officer Connelly’s affidavit
was not so lacking in probable cause as to make reliance
on it unreasonable. There was also sufficient evidence to
support the jury’s verdict on the Section 924(c) charge.
Finally, Mitten’s argument that the minimum ten-year
sentence to which he was subject on the underlying drug
trafficking crime rendered him exempt from Section
924(c)’s consecutive sentence scheme is foreclosed by
this Court’s prior holding in Easter. Accordingly, his
conviction and sentence are A FFIRMED.
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