The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3132 & 05-4469
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM OTERO and JAMES WOODS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 281—Rudolph T. Randa, Chief Judge.
____________
ARGUED JANUARY 11, 2007—DECIDED JULY 19, 2007
____________
Before BAUER, FLAUM, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. William Otero and James Woods
were convicted of conspiracy to possess with intent to
distribute at least 500 grams of cocaine (count one), in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846
and 18 U.S.C. § 2. Additionally, Woods was convicted of
knowingly using a communication facility in committing
the conspiracy (count two), in violation of 21 U.S.C.
§ 843(b), and Otero was convicted of maintaining a place
and intentionally making the place available for the
purpose of unlawfully distributing a controlled substance
(count three), in violation of 21 U.S.C. § 856(a)(1). Both
Otero and Woods were sentenced to 300 months’ imprison-
ment.
2 Nos. 05-3132 & 05-4469
On appeal, Otero challenges the denial of his motion to
suppress evidence seized from his home pursuant to a
federal search warrant, arguing that the affidavit support-
ing the search warrant did not establish probable cause
and that the good faith exception to the warrant require-
ment is inapplicable. He also argues that the district court
erred in sentencing him to 300 months’ imprisonment
for maintaining a drug-house, considering that the statu-
tory maximum for violating 21 U.S.C. § 856(a)(1) is 240
months’ imprisonment.
In his appeal, Woods contends that the district court
improperly instructed the jury regarding the standard of
proof necessary to establish venue. He also asserts a
number of challenges to his sentence. For the reasons
set forth below, we affirm the defendants’ convictions,
Woods’ sentence, and Otero’s sentence on the conspiracy
charge, but we vacate and remand Otero’s sentence as to
count three.
I. Background
In October of 2004, the Drug Enforcement Administra-
tion (“DEA”) received a tip from a confidential informant
that Otero and Woods were distributing cocaine. On
November 15, 2004, DEA Special Agent Enrique Carlton
contacted Woods to see if he would sell him cocaine. After
a series of phone calls, Woods agreed to meet Carlton the
next day in Kenosha, Wisconsin. During the early morning
hours of November 16, Woods nearly ran over a Kenosha
police officer. After the encounter with the officer, Woods
contacted Carlton and told him that he would not deliver
the cocaine in Wisconsin. Instead, Carlton met Woods in
a parking lot at the Gurnee Mills Mall in Illinois and
paid him $1,650 in exchange for two ounces of cocaine.
Following the transaction, Woods met Otero and Victor
Nos. 05-3132 & 05-4469 3
Cabrera, the supplier of the cocaine, at a nearby restau-
rant and gave Otero the money obtained during the sale.
On November 17 and 18, Carlton contacted Woods
several times, attempting to schedule another controlled
buy. Woods agreed to sell nine more ounces of cocaine to
Carlton but refused to meet him in Kenosha, Wisconsin.
Woods explained that he would not travel to Kenosha to
deliver the cocaine because he feared that there was a
warrant out for his arrest in Wisconsin based on the
November 16 incident that he had with the Kenosha
police officer. On November 19, 2004, Cabrera drove
with Woods to the Gurnee Mills Mall where Woods deliv-
ered the cocaine to Carlton. After the transaction, both
Woods and Cabrera were arrested.
Following his arrest, Woods told the investigating
agents that he had obtained the cocaine that morning
from Otero at Otero’s residence located at 6328 73rd Street,
Apartment 206, Kenosha, Wisconsin. He also stated that
while picking up the drugs, he observed a scale and
additional ounces of cocaine on a table inside Otero’s
residence. He claimed that he had previously seen Otero
with a firearm in the apartment, but he had not seen
Otero with a firearm that day. Finally, Woods told the
agents that Otero typically hid his cocaine in the apart-
ment’s garage or bedroom.
After learning this information, Carlton filed an affidavit
in support of an application seeking the issuance of a
warrant to search Otero’s apartment in Kenosha, Wiscon-
sin. Carlton’s affidavit stated that Woods had delivered
cocaine to Carlton on November 16 and 19, 2004. The
affidavit included Woods’ pre-arrest statements that he
had refused to travel to Kenosha and Woods’ post-arrest
statement that he had received the drugs on November 19
from Otero at Otero’s apartment in Kenosha, Wisconsin.
The affidavit also included Woods’ statements concerning
4 Nos. 05-3132 & 05-4469
Otero’s residence. Finally, Carlton’s affidavit stated that
Cabrera confirmed Woods’ claim that both Cabrera and
Otero were present during Woods’ November 16 transac-
tion with Carlton.
On November 19, 2004, based on Carlton’s affidavit, a
United States magistrate judge issued a search warrant
for Otero’s apartment and one-car garage. The agents
executed the warrant and found a bottle of inositol, plastic
baggies, “corner cuts” from plastic baggies, a glass pipe
wrapped in foil, and other paraphernalia used to smoke
crack cocaine. The agents also found a number of items
in Otero’s bedroom and garage that had cocaine residue
on them, including a scale, measuring cup, table, razor
blade, spoon, and plastic film container.
Before his trial, Otero moved to suppress the evidence
obtained during the search, arguing that there was no
probable cause to issue the warrant. Additionally, Otero
argued that Woods’ pre-arrest statements (that he would
not travel to Kenosha to deliver the cocaine because of his
earlier run-in with the police) and post-arrest statement
(that he had obtained the cocaine that morning from Otero
at his apartment in Kenosha) were inherently unreliable
and rendered Carlton’s affidavit internally inconsistent.
The magistrate judge disagreed and found that the
search warrant was supported by probable cause. The
district court adopted the magistrate judge’s recommenda-
tion and denied Otero’s motion to suppress.
The items seized and statements made by Otero dur-
ing the search of his residence were introduced into
evidence at his trial; the jury returned a verdict of guilty
on each count. The district court sentenced him to 300
months’ imprisonment on each count to be served concur-
rently.
In a separate jury trial, Woods was also found guilty.
The district court sentenced Woods as a career offender to
Nos. 05-3132 & 05-4469 5
300 months’ imprisonment as to count one and 48 months
as to count two, with the terms running concurrently.
Both Otero and Woods filed these timely appeals, which
we have consolidated.
II. Discussion
A. Probable Cause to Search Otero’s Apartment
On appeal, Otero renews his argument that the search
warrant was not supported by probable cause. We review
de novo the district court’s determination that the sup-
porting affidavit provided probable cause to believe that
a search would uncover evidence of a crime. United States
v. Peck, 317 F.3d 754, 756 (7th Cir. 2003). We have stated:
A magistrate’s determination of probable cause is to be
given considerable weight and should be over-ruled
only when the supporting affidavit, read as a whole
in a realistic and common sense manner, does not
allege specific facts and circumstances from which the
magistrate could reasonably conclude that the items
sought to be seized are associated with the crime and
located in the place indicated.
United States v. Wiley, 475 F.3d 908, 914-15 (7th Cir.
2007) (citing United States v. Newsom, 402 F.3d 780, 782
(7th Cir. 2005)). Where probable cause is based on infor-
mation supplied by an informant, courts consider the fol-
lowing factors: “(1) the extent to which the police have
corroborated the informant’s statements; (2) the degree to
which the informant has acquired knowledge of the
events through firsthand observation; (3) the amount of
detail provided; and (4) the interval between the date of
the events and the police officer’s application for the
search warrant.” United States v. Koerth, 312 F.3d 862,
866 (7th Cir. 2002).
6 Nos. 05-3132 & 05-4469
We agree with the magistrate judge that the affidavit did
contain enough evidence to establish probable cause to
search Otero’s apartment. First, much of the information
in the affidavit was based on Woods’ firsthand observa-
tions. Carlton’s affidavit set forth Woods’ post-arrest
statement that he had obtained the cocaine that morning
from Otero at Otero’s apartment.1 Second, Woods provided
sufficient detail concerning Otero’s apartment: he identi-
fied the address of Otero’s apartment, provided specific
locations in the apartment where Otero hid his cocaine,
and indicated that he had observed a scale and additional
ounces of cocaine in Otero’s apartment while picking up
the cocaine. Third, the search warrant was requested
shortly after Woods told Carlton that Otero had supplied
him with the cocaine. Finally, Cabrera’s information—that
Otero was present during and involved in the cocaine
transaction between Woods and Carlton on November 16,
2004—corroborates Woods’ statements that Otero was
involved in the conspiracy. In light of the totality of the
circumstances, Carlton’s affidavit sets forth sufficient
evidence to induce a reasonably prudent person to believe
that a search of Otero’s apartment would uncover evid-
ence of a crime. See Peck, 317 F.3d at 755-56.
Moreover, even if probable cause was lacking, Otero has
failed to meet his burden of demonstrating that the good-
faith exception of United States v. Leon, 468 U.S. 897, 104
1
Over a month after Woods’ arrest and the issuance of the
search warrant, Woods confessed that it was Cabrera (and not
Otero) who had provided him with the cocaine that he had sold
on November 19. However, this inconsistency is not relevant to
the probable cause determination. Because Carlton’s affidavit
was the only evidence presented to the magistrate judge on
November 19, “the warrant must stand or fall solely on the
contents of the affidavit.” See Koerth, 312 F.3d at 866 (quoting
United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967)).
Nos. 05-3132 & 05-4469 7
S. Ct. 3405, 82 L. Ed. 2d 677 (1984), should not apply here.
In Leon, the Supreme Court held that evidence seized
pursuant to a subsequently invalidated search warrant
need not be suppressed if the officers relied in good faith
on the magistrate judge’s issuance of the warrant. Leon,
468 U.S. at 924. An officer’s decision to obtain a warrant
is prima facie evidence that he or she was acting in good
faith. United States v. Mykytiuk, 402 F.3d 773, 777 (7th
Cir. 2005). A defendant can rebut the presumption of good
faith only by showing that the judge issuing the warrant
abandoned his/her detached and neutral role, the officers
were dishonest or reckless in preparing the affidavit, or
the warrant was so lacking in probable cause as to render
the officer’s belief in its existence entirely unreasonable.
Peck, 317 F.3d at 757; Leon, 468 U.S. at 923.
Otero does not suggest that the magistrate judge simply
rubber-stamped the application in issuing the search
warrant. Instead, he argues that Carlton could not have
harbored an objectively reasonable belief that there was
probable cause to search Otero’s residence. In support of
this argument, Otero contends that Carlton acted reck-
lessly in preparing an affidavit containing inconsistent
statements. We disagree with Otero’s contention that
Woods’ pre-arrest and post-arrest statements are contra-
dictory.
Although Woods told Carlton that he would not travel to
Wisconsin to deliver the cocaine due to his November 16
run-in with the Kenosha police, he did not tell Carlton that
he would never travel to Kenosha for any reason. Woods’
pre-arrest statements did not preclude the possibility of
him traveling to Kenosha the morning of November 19 to
pick up cocaine from Otero, and, after his arrest, that is
precisely what Woods told Carlton he had done. Carlton
had no reason to believe that Woods was being untruthful
when he identified Otero as his supplier and there is no
evidence in the record to suggest that Carlton knew that
8 Nos. 05-3132 & 05-4469
Woods’ statement was false when the warrant was issued.
The warrant was obtained and relied upon in good faith.
B. Otero’s Sentence
Otero also asserts that the district court erred in deter-
mining his sentence. Otero was convicted of both conspir-
acy to distribute at least 500 grams of cocaine (count one)
and maintaining a drug-trafficking place (count three). The
district court sentenced Otero to 300 months’ imprison-
ment as to each count, with the sentences to run concur-
rently. Under 21 U.S.C. § 856(b), any person who violates
§ 856(a) shall be sentenced to a term of imprisonment not
more than twenty years. Given the statutory maximum,
the district court erred in sentencing Otero to a term of
imprisonment exceeding twenty years on count three. We
vacate Otero’s sentence as to count three and remand for
re-sentencing on this count.
C. Venue Instruction at Woods’ Trial
Woods begins his appeal by arguing that it was error for
the district court to give a jury instruction that only
required the government to prove by a preponderance of
the evidence that venue existed in the Eastern District of
Wisconsin. He argues that “[t]he Seventh Circuit employs
a standard of beyond a reasonable doubt in proving venue.”
In United States v. Canino, 949 F.2d 928 (7th Cir. 1991),
we rejected a similar argument and reiterated that “the
law of this circuit is that venue is shown by
a preponderance of the evidence, which may include
inferences drawn from circumstantial evidence.” Canino,
949 F.2d at 942 (citations omitted). The district court’s
venue instruction was correct.
Nos. 05-3132 & 05-4469 9
D. Woods’ Sentence
After the conviction, the probation officer prepared
Woods’ pre-sentence report (“PSR”). Because the PSR
characterized Woods as a career offender, his base offense
level increased from 24 to 34 and he received a criminal
history category of VI. This resulted in a sentencing
range of 262 to 327 months of imprisonment. Woods filed
two objections to the PSR, arguing that he was entitled
to an adjustment for acceptance of responsibility and that
he was not a career offender.
Before Woods’ sentencing hearing, Sean Smoker, a
federal inmate and con artist serving a sentence for
fraudulent use of a social security number, sent a letter to
his own sentencing judge claiming that Woods had threat-
ened the life of a federal prosecutor.2 During an investiga-
tion of the death threat, another inmate told an FBI
investigator that he had overheard Woods say that he
was planning to stab his prosecutor with a pen.
At sentencing, the district court rejected Woods’ objec-
tions and found that the sentencing range calculated in the
PSR was correct. In assessing Woods’ history and charac-
teristics, the district court took into consideration the
information provided by Smoker. The district court
2
In the letter, Smoker claimed that Woods had asked him how
sentencing worked and where people sit during sentencing. The
letter explained that Woods told Smoker that he had no inten-
tion of serving 25 years in prison and therefore intended to
get the death penalty by killing his prosecutor. Smoker claimed
that Woods told him that he planned to “grab his attorney’s pen
and . . . stick the pen through [the prosecutor’s] nose into her
brain” during sentencing. Additionally, Smoker claimed that
Woods told him that “if he couldn’t get to the prosecutor during
his sentencing, he would use his outside contacts to get to [the
prosecutor’s] family.”
10 Nos. 05-3132 & 05-4469
concluded that the seriousness of the offense and the
history and characteristics of Woods warranted a term of
300 months’ imprisonment. Woods now argues that the
district court erred in denying him acceptance of responsi-
bility and in determining that he qualified as a career
offender. He also contends that the court abused its
discretion in considering the hearsay evidence from
Smoker in assessing Woods’ history and characteristics
and that his background and his role in the offense did
not justify his sentence.
1. Acceptance of Responsibility
Despite proceeding to trial, Woods argues that he is
entitled to sentencing credit for acceptance of responsibil-
ity because he cooperated with law enforcement after his
arrest. An acceptance of responsibility determination is a
factual finding that we review for clear error. United
States v. Leahy, 464 F.3d 773, 790 (7th Cir. 2006) (citations
omitted). United States Sentencing Guideline (“U.S.S.G.”)
§ 3E1.1(a) provides that a court is to give a two-point
reduction if the defendant “clearly demonstrates accep-
tance of responsibility for his offense.” Woods’ actions
clearly demonstrate that he did not accept responsibility
for his offense.
Although Woods cooperated with authorities immedi-
ately after his arrest, the government later discovered that
Woods had lied to them about the source of the drugs.
Additionally, Woods refused to cooperate with prosecutors
during Otero’s trial, declined to accept responsibility
during the preparation of his pre-sentence report, and
ultimately, he proceeded to trial and contested his guilt.
Because Woods failed to accept responsibility for his
offense, the district court did not err in denying Woods a
sentencing reduction pursuant to U.S.S.G. § 3E1.1.
Nos. 05-3132 & 05-4469 11
2. Career Offender
Woods next argues that the district court erred in
determining that he qualified as a career offender under
U.S.S.G. § 4B1.1. Whether the district court erred in
sentencing Woods as a career offender is a question of law
that this court reviews de novo. United States v. Kindle,
453 F.3d 438, 440 (7th Cir. 2006). Under the Guidelines, a
defendant qualifies as a career offender if three criteria
are met: (1) the defendant is over 18 at the time he
committed the instant offense; (2) the instant offense is a
felony that constitutes either a crime of violence or a
controlled substance offense; and (3) the defendant has at
least two prior felony convictions for either crimes of
violence or controlled substance offenses. See U.S.S.G.
§ 4B1.1.
Here, the first two elements are not in dispute: Woods
was over 18 years old when he committed the instant
offense and the instant offense qualifies as a controlled
substance offense. With respect to the third element,
Woods’ PSR indicates that he has had several prior
convictions, including strong-armed battery in November
of 1990, battery to a jailer with a weapon in April of 1993,
and battery to a jailer in September of 1993. Woods
concedes that his April 1998 battery qualifies as a violent
felony, and the district court found that his strong-armed
robbery conviction also qualifies as such.
Woods argues, however, that the robbery does not
constitute a “crime of violence,” and that because he was
a minor at the time of this offense, the robbery does not
meet the definition of “prior felony conviction.” We dis-
agree.
The Guidelines define a “crime of violence” as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year that (1)
has as an element the use, attempted use, or threatened
12 Nos. 05-3132 & 05-4469
use of physical force against the person of another; or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a) (emphasis added). In 1990, Woods was
convicted of violating Wis. Stat. § 943.32(1)(a), which has
as a necessary element the use of force against a victim.3
Additionally, robbery is one of the offenses specifically
enumerated as being a “crime of violence” for purposes of
U.S.S.G. § 4B1.2(a). See Application Note 1 (“ ‘Crime of
violence’ includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, robbery, arson,
extortion, extortionate extension of credit, and burglary
of a dwelling.”). Furthermore, while it is true that Woods
was 17 when he committed the robbery, the offense may be
counted for career offender purposes because Woods’
robbery conviction was classified as an adult conviction in
Wisconsin. See U.S.S.G. § 4B1.2(a), Application Note 1 (“A
conviction for an offense committed prior to age eighteen
is an adult conviction if it is classified as an adult convic-
tion under the laws of the jurisdiction in which the
defendant was convicted.”) Given that a robbery is enu-
merated as a “crime of violence” under the Guidelines
and Woods’ conviction for strong-armed robbery was
classified as an adult conviction, the district court did not
err in finding that Wood qualified as a career offender.4
3
Under Wisconsin Statute § 943.32, “(1) Whoever, with intent
to steal, takes property from the person or presence of the owner
by . . . the following means is guilty of a Class E felony: (a) By
using force against the person of the owner with intent to
overcome his or her physical resistance or physical power of
resistence to taking or carrying away of the property . . . .”
4
For the first time on appeal, Woods argues that he is entitled
to a reduction in his offense level for being a minor participant
(continued...)
Nos. 05-3132 & 05-4469 13
3. Reasonableness of Sentence
Finally, Woods argues that his sentence was “oppres-
sive,” arguing that his background and his role in the
offense did not justify 300 months’ imprisonment. Follow-
ing United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005), we review sentences for reason-
ableness. A sentence within a properly calculated Guide-
lines range is presumptively reasonable, see Rita v. United
States, No. 06-5754, 2007 WL 1772146 (June 21, 2007),
and we review the district court’s decision deferentially.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Although a
sentence within the Guidelines range will rarely be
unreasonable, a defendant can rebut the presumption by
showing that the sentence is unreasonable in light of the
factors listed in 18 U.S.C. § 3553(a). Id.
Here, the district court judge correctly calculated Woods’
advisory Guidelines range. The district court then consid-
ered the § 3553(a) factors and identified the factors that he
was taking into consideration in determining Woods’
sentence. First, the district court addressed the gravity of
Woods’ offense, commenting on the negative economic,
social and personal effects associated with cocaine-traffick-
ing. The district court then analyzed Woods’ history and
characteristics, noting a past replete with all sorts of
combative, assaultive behavior and a personality charac-
terized by hatred and anger. In assessing Woods’ history
and characteristics, the district court also took into
consideration the death threat evidence offered by
4
(...continued)
in the criminal conspiracy. Because Woods was sentenced as a
career offender, minimal and minor role reductions under
§ 3B1.2 do not apply. See United States v. Ward, 144 F.3d 1024,
1036-37 (7th Cir. 1998).
14 Nos. 05-3132 & 05-4469
Smoker.5 Finally, the district court explained the need to
impose a sentence that reflects the seriousness of the
offense, promotes respect for the law, and provides uni-
form punishment. Because the district court gave mean-
ingful consideration to the § 3553(a) factors, chose a
sentence within a properly calculated Guidelines range,
and explained its reasoning for sentencing Woods to 300
months’ imprisonment, we find that Woods’ sentence is
reasonable.
III. Conclusion
For the foregoing reasons, the decision of the district
court is affirmed in part and vacated and remanded in
part.
ROVNER, Circuit Judge, concurring. After receiving
information about Otero from the recently arrested Woods
and Cabrera, the officers did literally nothing to corrobo-
5
Woods argues that the district court should not have consid-
ered the hearsay evidence from Smoker in assessing his history
and characteristics. We disagree. At sentencing, a district
court may consider evidence that is not otherwise admissible,
including hearsay, so long as it possesses “sufficient indicia of
reliability to support its probable accuracy.” See United States v.
Johnson, 227 F.3d 807, 813 (7th Cir. 2000); U.S.S.G. § 6A1.3(a).
Here, the hearsay evidence possessed sufficient indicia of
reliability because Smoker’s account was corroborated by another
inmate, who told investigators that he had overheard Woods’
death threat.
Nos. 05-3132 & 05-4469 15
rate any of that information. They did not check into
Otero’s criminal record. They did not check to see whether
someone named Otero lived at the address given by Woods.
Woods told the officers that Otero hid the drugs in his
bedroom or in the detached garage. The garage was not
detached, but the officers failed to verify even this detail,
which would have been readily discernable. There were
obvious credibility problems with Woods, an unproven
informant who had just been arrested and had previously
told the officers he refused to travel to Wisconsin, now
claiming that he procured the drugs from Otero in Wiscon-
sin that same day. There is nothing in the affidavit that
compensates for the lack of independent police corrobora-
tion. The level of detail Woods provided is irrelevant if
the officers did nothing to verify the accuracy of any of
those details. I would find that there was insufficient
evidence to support a finding of probable cause. See United
States v. Peck, 317 F.3d 754, 756-57 (7th Cir. 2003).
However, because I agree with my colleagues that the Leon
good faith exception applies, I concur in the majority’s
judgment affirming the district court’s denial of the mo-
tion to suppress. Excepting the discussion of probable
cause, I concur in the majority’s opinion in every other
respect.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-19-07