NONPRECEDENTIAL DISPOSITION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 23, 2012
Decided May 23, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐3150
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 595‐1
WILLIE BROWN,
Defendant‐Appellant. Virginia M. Kendall,
Judge.
O R D E R
An informant told Chicago police officer Antonio Herrera that Willie Brown had
given the informant crack cocaine and heroin to sell during a meeting in Brown’s apartment
earlier that day. Herrera obtained a warrant from a state judge to search Brown and his
apartment. During the search, officers recovered heroin and several guns.
Brown was indicted on charges of possession of a firearm by a felon, 18 U.S.C.
§ 922(g)(1), possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), and
possession of a firearm in furtherance of a drug‐trafficking crime, 18 U.S.C. § 924(c)(1)(A).
He moved to suppress the drugs and guns on the ground that the affidavit supporting the
search warrant does not establish the reliability of the informant or, consequently, probable
No. 11‐3150 Page 2
cause. The district court denied the motion without an evidentiary hearing. The court
concluded that the affidavit establishes probable cause and, at the very least, is sufficient for
the police to have relied upon the warrant in good faith. Brown then pleaded guilty to the
§ 922(g)(1) count, reserving the right to challenge the district court’s suppression ruling on
appeal. See FED. R. CRIM. P. 11(a)(2). At sentencing, over Brown’s objection, the district court
determined that he is an armed career criminal and imposed the statutory minimum of 180
months’ imprisonment, see 18 U.S.C. § 924(e)(1), more than 2 years below the low end of his
guidelines range (210 to 262 months).
Brown filed a notice of appeal, but his newly appointed lawyer has concluded that
the appeal is frivolous and seeks permission to withdraw. See Anders v. California, 386 U.S.
738 (1967). Brown has not accepted our invitation to comment on counsel’s facially adequate
submission. See CIR. R. 51(b). We limit our review to the potential issues that counsel
discusses. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002). Brown has told his
attorney that he does not want his guilty plea set aside unless the district court’s ruling on
the suppression motion is overturned, so counsel properly forgoes discussing the adequacy
of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667,
670–72 (7th Cir. 2002).
Counsel first considers challenging the ruling on Brown’s suppression motion but
rightly concludes that the proposed claim would be frivolous. When a challenged search
warrant is obtained on an informant’s tip, courts evaluate several factors in deciding if the
information is sufficiently reliable to support the issuing judge’s determination of probable
cause. Those factors include the extent to which the informant’s tip was based on firsthand
observation, the level of detail provided, the length of time between the events described by
the informant and the officer’s application for a warrant, and the extent to which police
corroborated the informant’s statements. United States v. Searcy, 664 F.3d 1119, 1122
(7th Cir. 2011); United States v. Garcia, 528 F.3d 481, 486 (7th Cir. 2008). Also relevant is
whether the informant accompanied the applicant before the judge who approved the
warrant. See United States v. Sims, 551 F.3d 640, 644 (7th Cir. 2008); United States v. Koerth,
312 F.3d 862, 866 (7th Cir. 2002). Here the informant recounted firsthand dealings with
Brown at his apartment during the six to seven months he had worked for Brown and
included details about the amount and street value of the drugs. As for timing, Officer
Herrera sought the warrant the morning after the informant’s most‐recent drug deal at
Brown’s apartment. Finally, the informant appeared before the judge when Herrera sought
the warrant, providing the judge with an opportunity to assess the informant’s credibility.
See Sims, 551 F.3d at 644; United States v. Jones, 208 F.3d 603, 609 (7th Cir. 2000). Particularly
in light of the great deference we owe to the decision of the issuing judge, Illinois v. Gates,
462 U.S. 213, 236 (1983); United States v. Billian, 600 F.3d 791, 792 (7th Cir. 2010), we would
deem frivolous an argument contending that Herrera’s affidavit does not establish probable
No. 11‐3150 Page 3
cause to believe that illegal drugs would be found in Brown’s apartment, see United States v.
McIntire, 516 F.3d 576, 579 (7th Cir. 2006).
Moreover, as counsel acknowledges, an appellate claim that the district court abused
its discretion in not conducting an evidentiary hearing on the suppression motion would be
similarly frivolous. An evidentiary hearing is necessary only when there is a disputed issue
of material fact, see United States v. Curlin, 638 F.3d 562, 564 (7th Cir. 2011); United States v.
Walker, 237 F.3d 845, 850 (7th Cir. 2001), and here the only disagreement was whether the
application for the search warrant supports the determination of probable cause or, at the
very least, is not so meager that a reasonable police officer would recognize the warrant to
be invalid, see Walker, 237 F.3d at 850–51; United States v. Abboud, 438 F.3d 554, 577
(6th Cir. 2006). These were purely legal determinations that did not require factual
development through an evidentiary hearing.
Counsel next evaluates whether Brown might dispute that his criminal history
makes him an armed career criminal. A defendant who violates § 922(g)(1) after three or
more convictions for a “violent felony” or “serious drug offense” is an armed career
criminal, 18 U.S.C. § 924(e)(1). At sentencing Brown conceded that 2 of his past convictions
are for serious drug offenses because each carried a maximum potential prison term of 10
years or more. See id. § 924(e)(2)(A)(ii). He argued, however, that 4 other drug convictions
are not predicates because, for each, the possible prison sentence met the 10‐year threshold
only after applying a recidivism enhancement. But Brown’s argument is foreclosed by
United States v. Rodriquez, 553 U.S. 377 (2008), which holds that recidivism enhancements
count in assessing whether the maximum prison sentence for a conviction met the 10‐year
threshold for a serious drug offense. Id. at 382–84; see United States v. Henton, 374 F.3d 467,
470 (7th Cir. 2004). Thus, we agree with counsel that the proposed argument would be
frivolous.
Counsel last evaluates, but rightly deems frivolous, a challenge to the reasonableness
of Brown’s 180‐month prison sentence. Brown’s sentence is the lowest the judge could have
imposed and therefore cannot be deemed unreasonably high. See United States v. Cannon,
429 F.3d 1158, 1160–61 (7th Cir. 2005); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
