United States v. Johnson, Jesse J.

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3496
United States of America,
Plaintiff-Appellee,
v.
Jesse J. Johnson,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 142-1--Elaine E. Bucklo, Judge.
Argued April 5, 2002--Decided May 14, 2002
Before Flaum, Chief Judge, and Posner and
Rovner, Circuit Judges.
Flaum, Chief Judge. A federal grand
jury indicted Defendant-Appellant Jesse
J. Johnson for possession of crack
cocaine with intent to distribute in
violation of 21 U.S.C. sec. 841(a)(1),
possession of a firearm in furtherance of
drug trafficking in violation of 18
U.S.C. sec. 924(c)(1), and possession of
a firearm by a convicted felon in
violation of 18 U.S.C. sec. 922(g)(1).
Johnson initially pled not guilty and
moved to quash a search warrant that led
to the evidence against him. After the
district court denied the motion to
quash, Johnson entered into an agreement
with the government, pled guilty to Count
I of the indictment (possession with
intent to distribute), and reserved the
right to appeal the district court’s
denial of his motion to quash. On appeal,
Johnson challenges that ruling, as well
as several sentencing determinations. For
the reasons stated herein, we affirm.
I. Background
On February 15, 2000, Officer David
Jackson of the Joliet Police Department
appeared before Associate Judge Daniel
Rozak of the Will County Circuit Court to
apply for a warrant to search Johnson’s
person, residence and automobile. In his
application, Officer Jackson recited his
experience as a police officer and
described the general nature of his job
responsibilities with the Metropolitan
Area Narcotics Squad ("MANS"). Officer
Jackson also included information
obtained from a confidential informant
("CI") to whom Jackson referred as "Pat
Doe" to maintain the CI’s anonymity. The
CI informed Jackson that Jesse J.
Johnson, a black male, was manufacturing
and selling cocaine. Officer Jackson
asserted that the CI had "established
reliability," and then relayed the facts
that the CI had provided to him:
Pat Doe knows Jessie J. Johnson, and has
been inside the residence located at 505
Amhurst [sic], Lockport, Illinois. Within
the past 14 days, Pat Doe observed Jessie
J. Johnson to have a quantity of a white
chunky substance, suspected cocaine,
inside this residence. Pat Doe knows that
Jesse J. Johnson. [sic] intends on
selling this cocaine. Pat Doe is familiar
with cocaine because Pat Doe in the past
has purchased, packaged, and sold
cocaine. Pat Doe is familiar with the
color, texture, and smell of cocaine from
previous experience. Pat Doe also knows
that Jesse J. Johnson. [sic] referred to
this substance as being cocaine and
mentioned that heintends to sell this
cocaine as soon as possible to make a
financial profit.
Officer Jackson corroborated the fact
that Johnson was a black male individual
born on the date specified by the CI.
Officer Jackson also observed Johnson
operate one automobile and determined
that a second vehicle parked outside the
residence at 505 Amherst was registered
to Johnson./1
Both Officer Jackson and the CI appeared
before Judge Rozak, at which time the CI
took an oath and signed an affidavit
mirroring the details contained in
Officer Jackson’s application. Despite
the CI’s appearance before Judge Rozak,
the record is unclear regarding whether
the Judge asked the CI any questions,
whether the CI testified before the
court, or whether Judge Rozak observed
the CI’s demeanor when swearing to the
facts contained in the affidavit. Based
upon the facts in the affidavit, Judge
Rozak found probable cause and issued a
warrant authorizing law enforcement to
search Johnson’s person, the residence at
505 Amherst and two vehicles. On February
18, 2000, Officer Jackson and other law
enforcement officials executed the search
warrant and found 544 grams of cocaine,
approximately 164 grams of crack cocaine,
a baking dish, a scale, and a loaded
semi-automatic pistol on the top shelf of
a utility closet in Johnson’s home.
A federal grand jury returned a three-
count indictment against Johnson, who
initially pled not guilty and filed a
motion to quash the search warrant and
the evidence that resulted from the
search. Johnson argued that Judge Rozak
issued the warrant despite the absence of
probable cause. After briefing and
argument, the district court denied John
son’s motion. The district court stated
that the CI’s first-hand observations
were sufficient to support a finding of
probable cause. The district court also
noted that the presence of the CI before
the issuing magistrate, and the
opportunity to testify, were sufficient
indicia of reliability to foreclose
concerns regarding the veracity of the
CI’s information. As a result, the
district court held that the CI had
provided reliable information that
supported a finding of probable cause.
Subsequent to the district court’s
ruling, Johnson entered into a plea
agreement with the government whereby he
pled guilty to Count I of the indictment
(possession with intent to distribute)
and reserved his right to appeal the
district court’s denial of his motion to
quash./2
Johnson’s plea agreement stated that on
"February 18, 2000, the defendant
knowingly and intentionally possessed
about 544 grams of cocaine, about 164
grams of ’crack’ cocaine, a baking dish,
a scale, and a loaded semi-automatic
pistol that were located on the top shelf
of a utility closet in the lower floor of
his residence, 505 Amherst, Lockport
Illinois." At the plea hearing, the
government recited the facts contained in
the plea agreement, and Johnson
affirmatively stated that the facts were
true and that he possessed "cocaine base
and cocaine powder" when the officers
searched his residence on February 18,
2000. When asked by the district court
about the firearm discovered during the
search, Johnson admitted that "there was
a gun there." As a result, the district
court enhanced Johnson’s offense level
for possession of crack cocaine (U.S.S.G.
sec. 2D1.1(c)), as well as for possession
of a firearm during a drug crime
(U.S.S.G. sec. 2D1.1(b)(1)).
The final issue at sentencing concerned
the probation officer’s recommendation
that the district court sentence Johnson
based upon a Criminal History of IV and a
total offense level of 33 points. Despite
a plea agreement to the contrary, the
probation officer suggested the addition
of three points to Johnson’s criminal
history because Johnson received traffic
supervision for driving on a revoked
license (adding one point), and because
Johnson committed the present offense
while on traffic supervision (adding two
more points). Johnson argued before the
district court that the three-point
adjustment overstated his criminal
history, and he urged the district court
to depart downward. The district court
refused to do so, noting that driving on
a revoked license was a "serious" charge.
The district court stated:
I don’t think it overstates the
seriousness of the offense to say that
someone who has violated the driving laws
and lost their license and then is caught
driving receives a term of supervised
release, and therefore, that is a
criminal justice sentence of sorts, and
one of the conditions, at least in terms
of federal law, is that if you commit a
crime while under that sentence, you are
going to be held responsible for that as
if you wereunder supervision for some
other offense.
The district court sentenced Johnson to
188 months in prison, which reflects the
low end of the sentencing range, and
Johnson appeals.
II. Discussion
A. Denial of Motion to Suppress
Johnson first argues that the district
court should have granted his motion to
quash because Judge Rozak issued the
search warrant despite the absence of
probable cause. Specifically, Johnson
contends that the government was unable
to establish the reliability or veracity
of the CI because (1) the CI provided few
details surrounding his interaction with
the defendant, (2) the government
corroborated only obvious details of the
CI’s information that did not support the
court’s finding of reliability, and (3)
although the CI appeared before the
issuing magistrate, there is no evidence
in the record to suggest that Judge Rozak
actually questioned the CI.
We review determinations of probable
cause de novo. Ornelas v. United States,
517 U.S. 690, 698 (1996). However, we
take great care "to review findings of
historical fact only for clear error and
to give due weight to inferences drawn
from those facts by resident judges and
local law enforcement officers." Id. In
doing so, we are mindful that probable
cause is not a precise legal concept, but
rather a "commonsense, nontechnical"
standard that deals with "’the factual
and practical considerations of everyday
life on which reasonable and prudent men,
not legal technicians, act.’" Illinois v.
Gates, 462 U.S. 213, 231 (1983) (quoting
Brinegar v. United States, 338 U.S. 160,
175 (1949)). It is an inquiry that
requires us to examine the "totality of
the circumstances," Ornelas, 517 U.S. at
696; Gates, 462 U.S. 213, 230-39, and to
recognize that a "search warrant
affidavit establishes probable cause only
when it ’sets forth facts sufficient to
induce a reasonable prudent person to
believe that a search thereof will
uncover evidence of a crime.’" United
States v. Jones, 208 F.3d 603, 608 (7th
Cir. 2000) (quoting United States v.
McNeese, 901 F.2d 585, 592 (7th Cir.
1990)).
Examining a finding of probable cause
based upon information provided by a CI
presents unique challenges, such as
determining whether the government has
established the CI’s reliability,
veracity and basis of knowledge. When the
credibility of a CI is at issue, our
prior cases instruct us to consider
several factors, such as the informant’s
personal observations, the degree of
detail given, independent police
corroboration of the CI’s information,
and whether the informant testified at
the probable cause hearing. Jones, 208
F.3d at 608 (citing United States v.
Singleton, 125 F.3d 1097, 1103-04 (7th
Cir. 1997)); United States v. Pless, 982
F.2d 1118, 1125 (7th Cir. 1992). No
single issue is dispositive; "a
deficiency in one factor may be
compensated for by a strong showing in
another or by some other indication of
reliability." United States v. Brack, 188
F.3d 748, 756 (7th Cir. 1999). We
emphasize these factors as a means of
examining the CI’s reliability and
whether, based upon the facts provided by
the CI, a substantial basis existed for
concluding that law enforcement officials
would discover evidence of a particular
crime in a particular place. Gates, 462
U.S. at 238-39.
Although this case presents a close
question, we believe that the factual
record before the state court judge was
sufficient to support a finding of
probable cause and the issuance of the
search warrant. It is true that the CI
did not provide the level of specificity
and detail that would have removed all
ambiguity from the probable cause
inquiry, but we cannot examine the facts
provided by the CI in isolation. Instead,
we must evaluate "the totality of the
circumstances," Gates, 462 U.S. at 234,
and under that standard, the facts
supported the issuance of the search
warrant. Here, the CI provided first-hand
observations of illegal activity, offered
statements against his penal interest,
and appeared before the magistrate to
allay any concerns regarding his
veracity. Moreover, the investigating
officer corroborated the fact that at
least one of the vehicles parked in front
of Johnson’s home belonged to the
defendant. We discuss below why each of
these facts supported the CI’s
reliability and the issuing magistrate’s
finding of probable cause.
Foremost in our analysis is the fact
that the CI observed first-hand the
defendant’s illegal conduct, and we have
often repeated that first-hand
observations by a CI support a finding of
reliability. See United States v. Lloyd,
71 F.3d 1256, 1263 (7th Cir. 1995);
United States v. Buckley, 4 F.3d 552, 555
(7th Cir. 1993); see also Gates, 462 U.S.
at 234 ("even if we entertain some doubt
as to an informant’s motives, his
explicit and detailed description of
alleged wrongdoing, along with a
statement that the event was observed
first-hand, entitles his tip to greater
weight than might otherwise be the
case."). Here, there is no dispute that
the CI provided direct observations of
Johnson’s illegal conduct. The CI
informed the investigating officer that
he knew Johnson, that he was present in
Johnson’s residence at 505 Amherst, that
he observed cocaine, and that he knew
Johnson intended to sell the cocaine.
While the facts provided by the CI are
somewhat cursory, they establish the CI’s
basis of knowledge and support the CI’s
reliability. This is particularly true
because the CI provided a direct link be
tween the illegal activity observed and
the place to be searched. See United
States v. Danhauer, 229 F.3d 1002, 1006
(10th Cir. 2000) (affidavit insufficient
to establish probable cause where CI’s
information failed to link alleged drug
manufacturing to location to be
searched).
We also note that by making statements
against his penal interest the CI offered
another indicium of reliability. See
United States v. Harris, 403 U.S. 573,
583-84 (1970) ("Admissions of a crime . .
. carry their own indicia of credibility-
-sufficient at least to support a finding
of probable cause to search."); Jones,
208 F.3d at 605-06 (CI’s admission that
she had purchased approximately 12 pounds
of marijuana from defendant on three
previous occasions supported finding of
reliability); United States v.
Carmichael, 489 F.2d 983, 987 (7th Cir.
1973) (reliability of informant "inheres
in his statements against interest."). In
this case, the CI admitted prior drug
distribution and use. The CI’s affidavit
stated that he had "purchased, packaged,
and sold cocaine," and that the CI was
"familiar with the color, texture and
smell of cocaine from previous
experience." This information added to
the court’s finding of reliability.
Beyond the information provided by the
CI, two additional considerations exist
that support the magistrate’s issuance of
the search warrant. The first concerns
the investigating officer’s corroboration
of at least one detail contained within
the CI’s affidavit: the officer learned
that an automobile parked outside the
residence at 505 Amherst was registered
to Johnson. See Jones, 208 F.3d at 609
(officer corroborated as much of CI’s
information as possible before seeking a
warrant). The second is that the CI
appeared before Judge Rozak and swore an
additional affidavit mirroring the
details provided to the investigating of
ficer. In Jones, we upheld the issuance
of a search warrant that was based upon
information from a single CI who
personally appeared before the issuing
magistrate. Id. at 605-06. In that case,
we recognized that
when a CI accompanies the officer and is
available to give testimony before the
judge issuing the warrant, his presence
adds to the reliability of the
information used to obtain the warrant,
because it provides the judge with an
opportunity to assess the informant’s
credibility and allay any concerns he
might have had about the veracity of the
informant’s statements.
Id. at 609; see also Lloyd, 71 F.3d at
1263; United States v. Causey, 9 F.3d
1341, 1343-44 (7th Cir. 1993).
Johnsonasserts that while the CI may have
appeared before Judge Rozak, the record
is devoid of any evidence that the
issuing magistrate actually questioned
the CI. However, the same was true in
Lloyd, where the CI was present before
the judge, but there is no record that he
actually testified. We agree with Johnson
that an on-the-record exchange between CI
and issuing magistrate would further
buttress a finding that a CI is reliable,
but we decline to mandate this in every
case. As Lloyd recognizes, the presence
of the CI and opportunity to be
questioned are themselves indicia
ofreliability because they eliminate some
of the ambiguity that accompanies an
unknown hearsay declarant. The mere
presence of the CI allows the issuing
judge to confront the CI if
necessary./3
In sum, all of these factors support a
finding of probable cause. The CI
provided less than comprehensive details
regarding his observation of Johnson’s
illegal conduct. However, other
considerations--including the CI’s
statements against his interest and his
presence before the issuing magistrate--
sufficiently bolstered the CI’s
credibility in this case. Accordingly,
the district court did not commit error
in denying Johnson’s motion to quash the
search warrant.
B. Enhancement for Possession of Crack
Cocaine
Johnson next maintains that the district
court erred by not requiring the
government to prove by a preponderance of
the evidence that Johnson possessed crack
cocaine as opposed to powder cocaine. In
response, the government argues that
Johnson waived any challenge to this
issue. Waiver is the "intentional
relinquishment or abandonment of a known
right," United States v. Valenzuela, 150
F.3d 664, 667 (7th Cir. 1998), and
represents "the manifestation of an
intentional choice . . . ." United States
v. Cooper, 243 F.3d 411, 416 (7th Cir.
2001). Waiver is distinct from
forfeiture, which is an accidental or
negligent omission, or "an apparently
inadvertent failure to assert a right in
a timely fashion." Id. While we review
forfeited issues for plain error, a
waived issue leaves no error and
extinguishes all appellate review. Id. at
415.
When Johnson first raised the
possibility of contesting the finding of
crack cocaine in the district court, the
following colloquy took place between
Johnson, the district court and the
government:
THE DEFENDANT: Okay. One question, Your
Honor. Is my sentencing, can I appeal
[the finding of crack cocaine] as far as
on appeal if I have any appeal issues?
Would that be a problem?
THE COURT: That depends on your plea
agreement as well.
THE GOVERNMENT: Yes, he would be able
to, Your Honor. There is no appellate
waiver, and, in fact, he reserved, it was
a conditional plea, so he reserved some
of the suppression issues as well.
Tr. of Proceed., July 20, 2001 at 15. We
would be troubled with the government’s
assertion of waiver had subsequent events
not intervened. Immediately following the
colloquy at which the prosecutor informed
Johnson that he could appeal the issue,
the district court offered to continue
the proceedings until Johnson had the
opportunity to speak with counsel. The
district court then held another hearing
several weeks later. At that time, the
district court inquired whether Johnson
intended to dispute the district court’s
finding that he possessed crack cocaine.
Johnson’s counsel responded, "We are not
challenging the issue of crack, Judge."
Tr. of Proceed., Aug. 14, 2001 at 2-3.
This statement constitutes an affirmative
waiver and reflects precisely why the
intentional relinquishment of a right
forecloses appellate review. By agreeing
not to contest the crack/powder cocaine
distinction before the district court,
Johnson precluded the court from
establishing on the record the factual
justifications that supported its
decision. We are unable to find that the
district court erred on an issue that
Johnson never challenged. Accordingly, we
hold that Johnson waived the issue and
may not raise it on appeal.
Even if we were to consider the merits
of Johnson’s claim, the written plea
agreement Johnson signed uses the terms
"crack" and "cocaine base"
interchangeably. Indeed, Johnson pled
guilty to possessing "164 grams of
cocaine base, commonly known as ’crack’
cocaine." Besides further undercutting
Johnson’s claim of the absence of waiver,
these admissions--coupled with his
statements during several status
hearings--provide ample basis from which
the district court could conclude that
Johnson possessed crack cocaine. See
United States v. Benjamin, 116 F.3d 1204,
1207 (7th Cir. 1997); United States v.
Wade, 114 F.3d 103, 105 (7th Cir. 1997).
C. Enhancement for Possession of a
Firearm
Johnson contends that the two-point
enhancement for possession of a firearm
during the commission of a drug offense
was error. Johnson admits that the search
of his residence unearthed both drugs and
a firearm; however, he submits that there
was no evidence to show that he actually
possessed the gun, or that he used it in
the commission of the drug offense.
Johnson’s purported explanation regarding
the presence of the gun in his home was
that the firearm belonged to his wife’s
friend, who asked the Johnsons to store
the gun while she traveled to Georgia.
U.S.S.G. sec. 2D1.1(b)(1) provides for
a two-point enhancement if the defendant
possessed a "dangerous weapon (including
a firearm)" during the commission of a
drug offense. The enhancement applies "if
the weapon was present, unless it is
clearly improbable that the weapon was
connected with the offense." U.S.
Sentencing Guidelines Manual sec. 2D1.1
application note 3. As an example, the
Guidelines describe an "unloaded hunting
rifle in the closet." Id. In applying
sec. 2D1.1 (b)(1), we have emphasized
repeatedly that the government bears the
initial burden of proving that the
defendant possessed a firearm. United
States v. Bjorkman, 270 F.3d 482, 492
(7th Cir. 2001). The government
adequately met that burden in this case.
Law enforcement officers discovered a
loaded semi-automatic pistol in the top
shelf of a utility closet in Johnson’s
home, the same location where officers
also found 544 grams of cocaine and 164
grams of crack cocaine. In addition, at
the plea colloquy, Johnson admitted as
true certain facts recited by the
prosecutor, including the fact that the
Ruger 9 mm handgun with attached laser
sighting device was located next to the
narcotics. Johnson also responded to an
inquiry from the district court by
stating, "Yes, there was a gun there."
Tr. of Proceed., Mar. 30, 2001 at 16. We
have recognized consistently that the
proximity of a weapon to narcotics
provides the necessary factual support to
warrant the enhancement. See United
States v. Zehm, 217 F.3d 506, 517 (7th
Cir. 2000); United States v. McClinton,
135 F.3d 1178, 1193 (7th Cir. 1998).
Once the government meets its initial
burden, the defendant must demonstrate
that it is "clearly improbable" that the
weapon was connected with the drug
offense. Bjorkman, 270 F.3d at 492. The
relationship (or lack of one) between the
weapon and the underlying offense amounts
to a factual assessment, so our review of
the district court’s determination is for
clear error. See United States v. Vargas,
116 F.3d 195, 197 (7th Cir. 1997). In
this case, Johnson asserted that the
firearm belonged to his wife’s friend.
However, we are unable to conclude that
the district court erred by not affording
Johnson’s self-serving assertion
presumptive weight. See United States v.
Chandler, 12 F.3d 1427, 1435 (7th Cir.
1994) (enhancement for possession of
firearm was proper where the evidence
contradicted defendant’s assertions). In
short, Johnson’s evidence fails to meet
the "clearly improbable" standard set
forth in the Guidelines, and we affirm
the district court’s application of sec.
2D1.1(b)(1).
D. Refusal to Depart Downward for
Acceptance of Responsibility
Finally, Johnson argues that the
district court abused its discretion by
not reducing Johnson’s criminal history
level because the three-point enhancement
for traffic supervision overstated
Johnson’s criminal history. When Johnson
initially accepted the government’s plea
agreement, both the government and the
defendant calculated four criminal
history points, resulting in criminal
history category III. However, the
probation officer prepared a pre-sentence
report that suggested enhancements for
driving on a revoked license (adding one
point) and for committing the current
offense while on traffic supervision
(adding two points). These enhancements
increased Johnson’s criminal history
category to IV and raised the appropriate
sentencing range. Johnson moved the
district court to depart downward,
arguing that the additional points
overstated his criminal history. Although
the district court was sympathetic to
Johnson’s argument, it refused to depart,
stating:
I don’t think it overstates the
seriousness of the offense to say that
someone who has violated the driving laws
and lost their license and then is caught
driving receives a term of supervised
release, and, therefore, that is a
criminal justice sentence of sorts, and
one of the conditions, at least in terms
of federal law, is that if you commit a
crime while under that sentence, you are
going to be held responsible for that as
if you were under supervision for some
other offense.
Accordingly, the district court accepted
the recommendations of the PSR.
A defendant who contests a district
court’s refusal to depart downward faces
an uphill battle because we review such
determinations only in the narrowest
circumstances. A defendant can challenge
the district court’s departure decisions
only if he shows that the district court
"misunderstood or misapplied the law,
because when a district court recognizes
its authority to depart under the
guidelines but in an exercise of its
discretion chooses not to do so, an
appellate court lacks jurisdiction to
review that decision." United States v.
Thomas, 181 F.3d 870, 873 (7th Cir.
1999); United States v. Wilson, 134 F.3d
855, 869-70 (7th Cir. 1998). Nothing in
the district court’s comments or in John
son’s brief suggests that the court
misunderstood its discretion to depart
downward. As a result, we lack
jurisdiction to consider the merits of
Johnson’s claim, United States v.
Atkinson, 259 F.3d 648, 653 (7th Cir.
2001), and we affirm the district court’s
decision not to depart downward.
III. Conclusion
For the foregoing reasons, we AFFIRM
Johnson’s conviction and sentence.
FOOTNOTES
/1 While the application for search warrant and the
search warrant itself refer to a residence at 505
Amhurst, the government states that Johnson’s
home is located at 505 Amherst. We rely on the
later spelling and note that the inconsistencies
do not affect resolution of this appeal.
/2 See Federal Rule of Criminal Procedure 11(a)(2),
which allows a defendant to "enter a conditional
plea of guilty or nolo contendere, reserving in
writing the right, on appeal from the judgment,
to review of the adverse determination of any
specified pretrial motion."
/3 We do not mean to suggest that the appearance of
the CI before the magistrate is sufficient to
establish probable cause in every case. Rather,
it is an additional factor a court should consid-
er when examining the totality of the circum-
stances.