Appendix — Dismuke v. United States

NITED STATES COURT

FOR THE SEVENTH

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\rgued January

Yecided Januar’,

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Paul

1 States

of the Uniteec

Plaintiff Appellee

James A. Walrat

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A. Walrath

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Before KANNE, WoOopD. and SYKES. Circuit

Judges.

SYKES, Circuit Judge.

Anthony Dismuke was convicted by a jury of

being a felon in possession of a firearm and sen-

tenced to a statutorily mandated 15-year prison

term based on three prior convictions the district

court deemed to be “violent felonies” under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e). On appeal he challenges both his con-

viction and his sentence.

Dismuke has a lengthy felony record and was

found in possession of two handguns during a

search of his home pursuant to a state-issued war-

rant. He moved to suppress the guns, but the dis-

trict court denied the motion. On appeal Dismuke

reiterates his claim that the guns were inadmis-

sible because the affidavit submitted in support of

the warrant application lacked sufficient corrob-

oration of information supplied by a confidential

informant. We disagree. Deferring as we must to

the decision of the judge who issued the warrant,

see United States v. McIntire, 516 F.3d 576, 577-78

(7th Cir.2008), we conclude that the affidavit con-

tained enough independent corroboration to sup-

port probable cause to search Dismuke’s home.

And even if it did not, there is no reason to believe

that the warrant-issuing judge abandoned his

neutrality or that the police did not act in good

faith. Accordingly, the guns were properly admit-

ted at trial and Dismuke’s conviction is affirmed.

3a

Dismuke also challenges his sentence, arguing

that under the Supreme Court’s decision in Begay

v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170

L.Ed.2d 490 (2008), his Wisconsin felony convic-

tion for vehicular fleeing is not a “violent felony”

under the ACCA and therefore should not have

counted toward the three convictions necessary to

subject him to the 15-year mandatory minimum

sentence. We disagree with this contention as

well. Applying Begay and reading our early post-

Begay decision in United States v. Spells, 537 F.3d

743 (7th Cir.2008), in light of the Supreme Court’s

later decision in Chambers v. United States, —

U.S. —, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), we

conclude that Wisconsin’s vehicular-fleeing offense

qualifies as a violent felony under the ACCA.

I. Background

On January 28, 2007, Milwaukee Police Officer

Anthony Randazzo applied for a warrant to search

the home of Anthony Dismuke for evidence of ille-

gal firearms possession. The affidavit Randazzo

submitted in support of the application relied pri-

marily on information the officer had received

from a confidential informant. The affidavit, how-

ever, provided no information about the informant

other than the officer’s assertion that he was “rell-

able.”

Randazzo began his affidavit with the custom-

ary explanation of his law-enforcement experi-

ence: He was a 15-year veteran of the Milwaukee

Police Department and had extensive training and

experience working on firearms investigations and

with confidential informants. He then related the

4a

following information about Dismuke: On January

27, 2007, Randazzo was contacted by a “reliable”

confidential informant who reported that Dis.

muke, a felon, was in possession of “at least three

firearms.” More specifically, the informant told

Randazzo that Dismuke lived at 2528 W. Locust

Street in Milwaukee and that within the last

week, the informant had seen Dismuke at his

Locust Street home in possession of a shotgun and

two handguns. Randazzo asked the informant if

he could identify Dismuke from a photograph and

the informant did so. Randazzo also verified that

the informant could distinguish between different

types of firearms.

Kandazzo then consulted court records and con-

firmed that Dismuke had prior felony convictions;

the affidavit listed the offenses, case numbers,

and dates of several of the convictions. Randazzo

also checked the Wisconsin Department of Trans-

portation driver’s license database, which con-

firmed that Dismuke lived at the address provided

by the informant. Randazzo then went to the

Locust Street residence and located an automobile

registered to Dismuke parked behind the house.

Finally, the affidavit provided a description of the

house, explained the need to keep the informant’s

identity confidential, and requested no-knock

authorization.

A Milwaukee County Court Commissioner

reviewed Randazzo's affidavit that same day,

found probable cause, and issued a warrant to

search Dismuke’s home for evidence of unlawful

possession of firearms. Officers executed the war-

rant the next day and recovered two handguns,

ammunition, and documents identifying the resi-

va

dence as Dismuke’s. The case was referred to fed-

eral authorities, and Dismuke was indicted for

possessing firearms as a convicted felon in viola-

tion of 18 U.S.C. § 922(¢)(1). He moved to sup

press the evidence from the search, arguing that

Randazzo’s affidavit was insufficient to support

probable cause. The district court denied the

motion. The court concluded first that there was

probable cause to support the issuance of the war-

rant, and in the alternative, the search was saved

by the good-faith exception articulated in United

States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82

L.Ed.2d 677 (1984).

Dismuke was convicted following a jury trial,

and his presentence report (“PSR”) recommended

that he be sentenced as an armed career criminal,

see 18 U.S.C. § 924(e), based on three Wisconsin

convictions that qualified as “violent felonies”

under the ACCA. The three convictions were: (1)

armed robbery; (2) burglary; and (3) vehicular

fleeing from an officer. Dismuke objected to the

PSR’s conclusion that his conviction for fleeing

was a violent felony. The district court adopted

the PSR’s recommendation, found that Dismuke

had three violent-felony convictions, and imposed

the ACCA’s mandatory minimum sentence of 15

years.

II. Discussion

A. Search Warrant

Dismuke first challenges the district court’s

denial of his suppression motion. He argues that

Randazzo’s affidavit provided too little corrobo-

ration of the information from the confidential]

6a

informant and was therefore insufficient to estab

lish probable cause to search his home. Because

Dismuke contests the sufficiency of the warrant

affidavit, the question for us is not whether the

district court got the probable-cause question

right but whether the warrant-issuing judge did.

“On that issue we must afford great deference to

the issuing judge’s conclusion.” Me/ntire, 516 F.3d

at 578 (internal quotation marks omitted). We will

uphold a finding of probable cause to search “so

long as the magistrate had a ‘substantial basis for

.conclud{[ing]’ that a search would uncover evi-

dence of wrongdoing.” J/llinois v. Gates, 462 U.S

213, 236, 103 5.Ct. 2317, 76 L.Ed.2d 527 (1983)

(quoting Jones v. United States, 362 U.S. 257, 271,

80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (alteration in

original)).

Probable cause is a common-sense, nontechnical

inquiry, and an affidavit submitted in support of

a search-warrant application will be sufficient to

support a probable-cause finding if, “based on the

totality of the circumstances, the affidavit sets

forth sufficient evidence to induce a reasonably

prudent person to believe that a search will

uncover evidence of a crime.” United States v.

Peck, 317 F.3d 754, 756 (7th Cir.2003). Even if we

conclude that the affidavit is insufficient to estab

lish probable cause, the evidence obtained in the

execution of the warrant need not be suppressed if

the police relied on the warrant in good faith. See

Leon, 468 U.S. at 920-21, 104 S.Ct. 3405. An offi

cer’s decision to seek a warrant is prima facie ev1-

dence that the officer was acting in good faith.

United States v. Watts, 535 F.3d 650, 657 (7th

Cir.2008). The good-faith exception thus applie:

unless the affidavit was “so lacking in indicia of

probable cause as to render official belief in it:

existence entirely unreasonable’ or the warrant

issuing judge “wholly abandoned” his neutral judi

cial role and “serve|[d| merely as a rubber stamp

for the police.” Leon, 468 U.S. at 923, 104 S.Ct

3405.

Where, as here, the affidavit submitted in sup

port of a search warrant relies on information

supplied by an informant, the totality-of-the-cir

cumstances inquiry generally focuses on. the

informant’s reliability, veracity, and basis of

knowledge. See United States v. Olson, 408 F.3d

366, 370 (7th Cir.2005). Several factors inform the

analysis, including: (1) the degree of police cor

roboration of the informant’s information; (2) the

extent to which the information is based on the

informant’s personal observations; (3) the amount

of detail provided by the informant; (4) the inter

val of time between the events reported by the

informant and the warrant application; and (5)

whether the informant personally appeared before

the warrant-issuing judge to present the affidavit

or testimony. United States v. Koerth, 312 F.3d

862, 866 (7th Cir.2002). “[A] deficiency in one fac

tor may be compensated for by a strony showing in

another or by some other indication of reliability.”

United States v. Brack, 188 F.3d 748, 756 (7th

Cir.1999) (citing Gates, 462 U.S. at 233, 103 S.Ct

2317).

A complication here is that Randazzo’s affidavit

described the confidential informant as “reliable”

without offering any explanation for that asser

Sa

tion. We have held that a wholly conclusory state-

ment about an informant’s reliability is entitled to

no weight; “information obtained from a reliable

source must be treated as information obtained

from an informant of unknown reliability.” Koerth,

312 F.3d at 867 (internal quotation marks omit-

ted). But an informant’s “unknown reliability” is

not necessarily fatal to the probable-cause deter-

mination; there may be a sufficient basis to sus-

tain the probable-cause finding under the totality

of the circumstances. See Gates, 462 U.S. at 237-

38, 103 S.Ct. 2317. “Statements from an informant

of unknown reliability may in certain instances

serve to establish probable cause if, under the

totality of the circumstances, a reasonable person

might consider that the statements are worthy of

credence.” Koerth, 312 F.3d at 867-68 (citing

Gates, 462 U.S. at 238, 103 S.Ct. 2317). In this sit-

uation, the extent to which the police have cor.

roborated the informant’s information—-always an

important factor—is key. /d. at 868.

We see this as a close case. Randazzo's affidavit

establishes that the informant’s information was

current and based on personal observation, but

the level of detail and corroboration are not well-

developed. The informant told Randazzo that he

had personally and recently seen Dismuke in pos-

session of three guns in his home; he provided an

exact address; and he described the guns as a

shotgun and two pistols. These basic details pro-

vide at least some indicia of reliability. But the

affidavit gave the warrant-issuing court commis-

sioner no additional particularized facts about the

informant’s observations. For instance, it offered

no explanation about the circumstances sur

rounding the informant’s observations-no expla-

nation, for example, of how the informant knew

Dismuke, why he was with Dismuke at his res)

dence, or where the guns were in the house.

Randazzo did make some effort to corroborate

the informant’s information. He asked the infor-

mant to identify Dismuke from a photograph, and

the informant correctly did so. He confirmed that

the informant knew the difference between sem1i-

automatic weapons, revolvers, rifles, and shot-

guns. He confirmed through driver's license

records that the address the informant had pro

vided was indeed Dismuke’s. And when he went to

the house and saw a car parked in the rear, he

traced the plate and confirmed that the car listed

to Dismuke. He also confirmed through court

records that Dismuke was a convicted felon.

Confirming the informant’s basic knowledge of

firearms made the information he provided

marginally more rehable. But Randazzo's other

efforts corroborated only Dismuke’s identity and

the fact that the informant had correctly ident.

fied Dismuke’'s residence. Accuracy on these inno

cent facts 1s important but does not directly

bolster the informant’s claim that Dismuke ille-

gally possessed guns at his home. Still, consider

ing the circumstances in their totality and giving

“great deference’ to the court commissioner who

issued the warrant, we conclude that Randazzo's

affidavit was sufficient to support the probable-

cause finding.

The totality of the circumstances before the

commissioner included the fact that the informant

had contacted Randazzo and reported that he per

onally observed Dismuke at his home in posses

sion of three specific firearms—a shotgun and two

pistols— within the last week. The informant was

able to distinguish between different types of

firearms and correctly identified Dismuke’s photo.

The address he said was Dismuke’s checked out

Although Randazzo did not identify the informant

or bring him before the court commissioner for hve

testimony, the informant did subject himself to

prosecution for making false statements to law

enforcement by coming to Randazzo with infor

mation about Dismuke. In all, we think the affi

davit is sufficient, albeit just barely, to sustain

of the search

i |

the court commissioner's Issuance

Warrant

In any eve nt, under the eood faith exception

he suppression of the fruits of the search would

not be appropriate in a close case hke this one

rhis ts not a case where the probable-cause deter

mination rested on little more than a “bare-bones’

attidavit or entirely conclusory allegations. See

United States v. Curry, 538 F.8d 718, 729 (7th

Cir.2008). Even if we were to conclude that the

iffidavit was insufficient to establish probable

cause, we could not say that it was “so plainly

deficient that any reasonably well-trained officer

would have known that his affidavit failed to

establish probable cause and that he should not

have applied for the warrant.’ ” Koerth, 312 F.3d

it 869 (quoting Malley v. Briggs, 475 U.S. 338,

345, 106 8.Ct. 1092, 89 L.Ed.2d 271 (1986)); see

also Watts, 535 F.3d at 657. Nor is there any evi

dence to suggest that the warrant-issuing court

] ? }

mimissioner abandoned his neutral judicial role

tial

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glary, arson, or extortion, involves use of explo-

Sives, or otherwise involves conduct that presents

a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B). Wisconsin's

fleeing offense is punishable by a prison term of

more than one year, see WiS. STAT. §§ 346.04(8),

346.17(38), 939.50(3), but it does not have as an

element the “use, attempted use, or threatened

use of physical force” and therefore does not qual-

ify under subsection (1) of the violent-felony

definition. This leaves subsection (11) of the defi-

nition-—the “residual clause”—-which includes any

crime that “is burglary, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk

of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B) (ii).

The Supreme Court has directed us to use a

“categorical approach” to determine whether a

crime is a violent felony under the ACCA’s resid-

ual clause. See, e.g., United States v. Woods, 576

F.3d 400, 403-05 (7th Cir.2009). The categorical

approach requires that we “look only to the fact of

conviction and the statutory definition of the prior

offense” rather than the “particular facts disclosed

by the record of conviction.” Shepard v. United

States, 544 U.S. 13, 17, 125 8.Ct.. 1264; 161

L.Ed.2d 205 (2005) (internal quotation marks

omitted); see also Woods, 576 F.3d at 403. But

when the statute in question is divisible—that is,

when it describes multiple offense categories,

some of which would be crimes of violence and

some of which would not—the Court has fashioned

a modified categorical approach. Woods, 576 F.3d

at 404. Under the modified categorical approach,

‘‘we may expand our inquiry into a limited range

of additional material... in order to determine

whether the jury actually convicted the defendant

of (or, in the case of a guilty plea, the defendant

expressly admitted to) violating a portion of the

statute that constitutes a violent felony.” /d.

(quoting United States v. Smith, 544 F.3d 781, 786

(7th Cir.2008)).

The expanded inquiry is limited to “the terms of

the charging document, the terms of a plea agree-

ment or transcript of colloquy between judge and

defendant in which the factual basis for the plea

was confirmed by the defendant, or to some com-

parable judicial record of this information.” Shep-

ard, 544 U.S. at 26, 125 S.Ct. 1254: see also

Smith, 544 F.3d at 786. This modified categorical

approach does not, however, inquire into the fac

tual specifics of the defendant's conduct: the point

of the expanded inquiry is not to consider what

the defendant in fact did but to determine which

category of crime the defendant committed. See

Woods, 576 F.3d at 405-06.

2. The Supreme Court’s Decision in Begay

Dismuke argues that his fleeing conviction can-

not be classified as a violent felony after the

Supreme Court's decision in Begay, which was

released about a month after he was sentenced.’

Begay addressed the scope of the ACCA’s residual]

clause and interpreted it in a way that narrows its

reach. The predicate ACCA conviction at issue in

Begayv applies here because it was decided while thi

case Was pending on direct review. Griffith v. Kentucky, 479

U.S. 314, 322, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)

4

l4a

Begay was a New Mexico felony conviction for

recidivist drunk driving. The Supreme Court

assumed that the lower courts were correct in con-

cluding that drunk driving involved conduct that

“presents a serious potential risk of physical

injury to another” within the meaning of statute.

Begay, 128 S.Ct. at 1584. The Court focused

instead on the statute's list of specifically included

crimes—burglary, arson, extortion, and crimes

involving the use of explosives-—and concluded

that the residual clause “covers only similar

crimes, rather than every crime that ‘presents a

serious potential risk of physical injury to

another.’ ” Jd. at 1585. In other words, the clause

covers only “crimes that are roughly similar, in

kind as well as in degree of risk posed, to the

examples themselves.” Jd. The Court said the

presence of the word “otherwise” after the list of

included crimes did not undermine this limiting

construction because “otherwise” could “refer to a

crime that is similar to the listed examples in

some respects but different in others—similar,

say. in respect to the degree of risk it produces,

but different in respect to the way or manner in

which it produces that risk.” /d. at 1586 (internal

quotation marks omitted).

The Court also held that a predicate crime wil)

be “similar in kind” to the enumerated crimes if it

involves the same sort of “purposeful, violent, and

aggressive’ conduct as the enumerated crimes. /d.

at 1586-87. Because drunk driving is a strict-lia-

bility crime, the Court concluded it was “too

unlike” the example crimes to be covered by the

residual clause of the definition. Jd. at 1584, 1586-

87. Accordingly, the Court held that New Mexico's

drunk-driving felony did not qualify as a violent

felony under the ACCA. 7d. at 1588.

3. Wisconsin’s Fleeing Offense as a Violent

Felony under Begay

We have previously determined that Wisconsin's

vehicular-fleeing offense qualifies as a violent

felony under the residual clause. See United

States v. Howze, 3438 F.8d 919, 921-22 (7th

Cir.2003). Begay's alteration of the framework for

deciding residual-clause cases requires us to

reconsider the matter. We start, as the categorical

approach requires, with the statutory definition of

the crime:

No operator of a vehicle, after having received

a visual or audible signal from a traffic officer,

or marked police vehicle, shall knowingly flee

or attempt to elude any traffic officer by will-

ful or wanton disregard of such signal so as to

interfere with or endanger the operation of

the police vehicle, or the traffic officer or other

vehicles or pedestrians, nor shall the operator

increase the speed of the operator's vehicle or

extinguish the lights of the vehicle in an

attempt to elude or flee.

WIS. STAT. § 346.04(3) (2000).

This statute 1s divisible in the sense that brings

the modified categorical approach into play—that

is, it defines more than one category of vehicular

tleeing. See Woods, 576 F.3d at 411. The first cat

egory is fleeing or attempting to elude an officer

“by willful or wanton disregard of [the officer's]

signal so as to interfere with or endanger the

operation of the police vehicle, or the traffic officer

l6a

or other vehicles or pedestrians.” WIS. STAT.

§ 346.04(3). The second is “increas[ing] the speed

of the operator's vehicle or extinguish[ing] the

lights of the vehicle in an attempt to elude or

flee.” Id.

Because the statute is divisible, we may consult

the charging document or other comparable judi-

cial record from the underlying case to determine

the specific crime Dismuke committed. See Woods,

976 F.3d at 405-06; Smith, 544 F.3d at 786. The

criminal complaint reflects that Dismuke was

charged with committing the second variety of

fleeing an officer. The complaint alleged that on

March 3, 1998, Dismuke was the operator of a

vehicle and “after having received a visual and

audible signal from a marked police vehicle, did

increase the speed of his vehicle in an attempt to

flee, contrary to Wisconsin Statutes Section[ ]

346.04(3).”

As we have explained, to qualify as a violent

felony under the residual clause after Begay, this

crime must “involve conduct that presents a seri-

ous potential risk of physical injury to another”

and must also be “roughly similar, in kind as well

as in degree of risk posed, to the example | ]”

crimes of burglary, arson, extortion, or use of

explosives. Begay, 128 S.Ct. at 1584-85. The “sim-

ilar in kind” aspect of this inquiry asks whether

the predicate crime encompasses conduct that is

similarly “purposeful, violent, and aggressive” to

the example crimes. To put it more succinctly,

after Begay, a residual-clause predicate crime

must (1) present a serious potential risk of phys-

ical injury similar in degree to the enumerated

crimes of burglary, arson, extortion, or crimes

l7a

involving the use of explosives; and (2) involve the

same or similar kind of “purposeful, violent, and

aggressive” conduct as the enumerated crimes.

Dismuke does not contend that Wisconsin’s flee-

ing offense fails the first part of this inquiry. He

apparently concedes that the offense involves con-

duct that presents a serious potential risk of phys-

ical injury and is sufficiently similar to the

residual clause’s enumerated crimes in respect to

the “degree of risk posed” to satisfy this part of

the Begay framework.* He argues instead that

. Dismuke’s concession is understandable. As we have

noted, before Begay we held that Wisconsin’s fleeing crime

is a violent felony under the residual clause and in so doing

concluded that the offense involves conduct that presents a

serious potential risk of physical injury to another. Howze,

343 F.3d at 921-22. Nothing in Begay undermines this con-

clusion. Begay’s additional requirement is that the potential

risk be similar in degree to the residual clause’s enumerated

crimes. The Supreme Court has noted that the potential risk

associated with the first enumerated crime, burglary, “arises

not from the simple physical act of wrongfully entering onto

another’s property, but rather from the possibility of a face-

to-face confrontation between the burglar and a third party.”

James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586,

167 L.Ed.2d 532 (2007) (holding that attempted burglary is

a violent felony under the residual clause).

As other circuits have noted, vehicular fleeing involves

active defiance of a law-enforcement officer, initiates a pur-

suit, and typically culminates in a face-to-face confrontation

between the officer and the suspect. See United States v.

Young, 580 F.3d 373, 377-78 (6th Cir.2009); United States v.

Harrimon, 568 F.3d 531, 536 (5th Cir.2009); United States

v. West, 550 F.3d 952, 969-71 (10th Cir.2008). The Fifth Cir-

cuit has also noted that the rate of injury from vehicular

fleeing exceeds the rate of injury from arson, another of the

residual clause’s enumerated crimes. Harrimon, 568 F.3d at

Wisconsin's fleeing offense is not “similar in kind

to the enumerated crimes because it is not sim!

larly “purposeful, violent, and aggressive.” The

government responds by invoking United States

Spells, 537 F.8d 743, 751-53 (7th Cir.2008), an

early post-Begay decision that classified Indiana's

fleeing offense as a violent felony under the resid

ual clause. Wisconsin's fleeing offense is narrower

1

than Indiana’s,‘ so it is tempting to simply accept

537. Although there is some contrary authority, see United

States v. Tyler, 580 F.3d 722, 725 (8th Cir.2009); United

States v. Harrison, 558 F.3d 1280, 1294 (11th Cir.2009), we

agree with the Fifth, Sixth, and Tenth Circuits that vehi

ular fleeing presents a potential risk of physical injury sim

ilar in degree to the residual clause’s enumerated offense

In this regard, we think it important to note that one of

the two circuits that have held vehicular fleeing 1s not a vio

lent felony after Begay addressed a statute defining the

offense as flight alone, without any additional requirement

of an acceleration in speed, the extinguishment of lights, o1

any other aggravator. See Harrison, 558 F.3d at 1290. The

Eleventh Circuit in Harrison made it clear that the absence

of any requirement of increased speed or reckless driving

Was important to its assessment of the risk question. /d. at

1294 (“(Tlhe fact that the behavior underlying Florida’s will

ful-fleeing crime, in the ordinary case, involves only a driver

who willfully refuses to stop and continues driving on—but

without high speed or recklessness—makes it unlikely that

the confrontation will escalate into a high-speed chase that

threatens pedestrians, other drivers, or the officer.”). Wis

consin’s fleeing statute requires flight by accelerated speed

or extinguishment of vehicle lights in an attempt to elude

the officer. We think this offense is sufficiently similar in

degree of potential risk to the residual clause’s enumerated

crimes and therefore satisfies this aspect of Begay

' As we have noted, Wisconsin's fleeing statute pro

hibits two specific types of vehicular fleeing: willful and

wanton disregard of the officer's signal in a manner that

19a

the government's argument and rely on Spells as

subsuming the question presented here. But in

light of an analytical omission we have noted in

Spells and intervening developments in the

caselaw, we think the issue calls for independent

consideration.

The first requirement of Begay’s “similarity in

kind” equation—that the predicate offense be cat-

egorically “purposeful”—is easily satisfied here. In

Woods we held that Begay’s “purposeful” require

ment focuses on the mens rea element of the pred

icate crime: “|T]he residual clause encompasses

only purposeful crimes; crimes with the mens rea

of recklessness do not fall within its scope.” 576

I.3d at 412-13.

Wisconsin’s vehicular-fleeing offense is a pur

poseful crime. Section 346.04(3) provides: “No

operator of a vehicle, after having received a

visual or audible signal from a traffic officer, or

marked police vehicle, shall knowingly flee or

attempt to elude” the officer. (Emphasis added.)

After this prefatory clause, the statute specifies

two alternative modes of fleeing: (1) by “willful or

wanton disregard” of the officer’s signal “so as to

interfere with or endanger” the officer, other vehi-

cles, or pedestrians; and (2) by “increas[ing] the

endangers others, and increasing the speed or extinguishing

the lights of the vehicle in an attempt to elude or flee. See

Wis. STAT. § 346.04(3). The Indiana fleeing statute at issue

in Spells more broadly prohibited the use of a vehicle to

“flee| |] from a law enforcement officer after the officer has,

by visible or audible means, including operation of the law

enforcement officer’s siren or emergency lights, identified

himself or herself and ordered the person to stop.” 537 F.3d

at 749.

2la

shortly after Begay, we addressed Indiana’s flee-

ing statute, which “criminalizes using a vehicle to

‘knowingly or intentionally ... flee| | from a law

enforcement officer.’ ” 537 F.3d at 752. We sum-

marily held that this “knowingly and intention-

ally” element satisfied Begay’s requirement of

“purposeful” conduct. Jd. at 752-53. Other circuits

have addressed fleeing statutes with similar mens

rea requirements and are uniformly in accord.”

See, e.g., United States v. Young, 580 F.3d 38738,

377 (6th Cir.2009) (holding that the Michigan flee-

ing statute’s requirement of “willful” failure to

stop “clearly involved” purposeful conduct); United

States v. LaCasse, 567 F.3d 763, 766 (6th

Cir.2009) (same holding regarding a different sub-

section of Michigan’s fleeing statute); United

States v. Tyler, 580 F.3d 722, 725 (8th Cir.2009)

(Minnesota’s fleeing statute requires “intent to

elude” and is therefore “purposeful” under Begay,

but is not categorically “violent and aggressive”);

United States v. Harrimon, 568 F.3d 531, 534 (5th

vir.2009) (considering Texas's fleeing statute and

noting “unlike the DUI statute at issue in Begay,

fleeing by vehicle requires intentional conduct”);

United States v. Harrison, 558 F.3d 1280, 1295

(llth Cir.2009) (concluding that the Florida

statute’s requirement of “willful” fleeing satisfied

Begay’s purposeful requirement but the crime was

. In United States v. Roseboro, 551 F.3d 226 (4th

Cir.2009), the Fourth Circuit considered whether South Car

olina’s fleeing offense was a violent felony under the resid-

ual clause as interpreted in Begay. The court noted that in

contrast to fleeing statutes in most other states, the South

Carolina statute did not require knowing or intentional dis.

regard of an officer’s signal. /d. at 235, 236 n. 5.

*)*).

het het @

not sufficiently “violent and aggressive”); United

States v. West, 550 F.3d 952, 970-71 (1lOth

Cir.2008) (holding that the Utah fleeing statute’s

requirement of “willfulness” satishes Begay’s “pur-

poseful” requirement).

The circuits are divided, however, on whether

vehicular fleeing satishes Begay’s requirement

that the predicate crime involve conduct that is

similarly “violent and aggressive’ as the residual

clause’s enumerated crimes. The Fifth, Sixth, and

Tenth Circuits have held that fleeing satisfies

Beyay’s “violent and aggressive” requirement. See

Harrimon, 568 F.3d at 5384-35; Young, 580 F.3d at

377-78; LaCasse, 567 F.3d at 767; West, 550 F.3d

ut 969-70.° The Eighth and Eleventh Circuits have

come to the opposite conclusion. See T'yler, 580

F.3d at 725-26: Harrison, 558 F.3d at 1295-96.

Spells preceded these opinions; ours was the

first circuit to address whether vehicular fleeing

qualifies as a violent felony after Begay. Spells

held that Indiana’s fleeing offense is not only

“purposeful” but is also categorically “agyressive”

and on this basis held that it satisfied the Begay

framework. 537 F.3d at 752. Our decision in

Spells, however, did not address whether fleeing is

“violent” in the way required by Begay. We do so

here and hold that Wisconsin’s crime of vehicular

fleeing involves conduct that is similarly “violent

. West contained a lengthy discussion analopizing flee

ing to escape. Any suggestion tn that discussion that all

escape crimes——including failure to report—-are violent

felonies was withdrawn by United States v. Shipp, 589 Fudd

1084, 1090 n. 3 (10th Cir.2009), in light of Chambers,

U.S. ,129 8.Ct. 687, 172 L.Ed.2d 484. This does not alter

West's holding regarding vehicular fleeing

-

23a

and aggressive’ to burglary, arson, extortion, or

crimes that involve the use of explosives.

First, it bears emphasizing that the Supreme

Court’s categorical approach focuses on the

generic crime as ordinarily committed; it is not

necessary, therefore, that every conceivable vio-

lation of the statute meet the Begay test. See

James v. United States, 550 U.S. 192, 208, 127

S.Ct. 1586, 167 L.Ed.2d 532 (2007); see also

Woods, 576 F.3d at 404. Instead, the proper

inquiry is whether the conduct encompassed by

the statutory elements of the crime, in the ordi-

nary or typical case, presents a serious potential

risk of physical injury and (as Begay requires)

bears sufficient similarity—both in kind and

degree of risk posed—to the conduct encompassed

by the enumerated crimes of burglary, arson,

extortion, or crimes involving the use of explo-

sives. See Woods, 576 F.3d at 404. If the conduct

encompassed by Wisconsin's fleeing statute is

“violent and aggressive” in this generic sense,

then the requirements of Begay are satisfied and

the conviction was properly counted as a violeuat

felony.

The fleeing offense at issue here makes it a

crime for the driver of a vehicle to Knowingly dis-

regard a police signal and take flight by acceler-

ating his speed or extinguishing the lights of his

vehicle in an attempt to flee or elude the pursuing

officer. For reasons we will explain, we think this

conduct is violent and aggressive in the sense

required by Begay. Dismuke’s argument to the

contrary relies largely on this statement from

Begay: “By way of contrast, statutes that forbid

driving under the influence, such as the statute

+

—

f

_ 4

-

aa

W

ie

95a

and aggressive’ limitation requires only that a

residual-clause predicate crime be characterized

by aggressive conduct with a similar potential for

violence and therefore injury as the enumerated

offenses, not that it must “insist on” or require a

violent act.

The Supreme Court's decision in Chambers v.

United States, — U.S. , 129 S.Ct. Gai eee

L..Ed.2d 484 (2009), confirms this understanding

of how to apply Begay’s “violent and aggressive”

requirement. The predicate conviction in Cham.

bers was the version of Illinois’ escape crime that

consists of a failure to report for custody. The

Court distinguished the failure-to-report version

of this offense from one that involved an actual

escape from physical custody. “The behavior that

likely underlies a failure to report would seem less

likely to involve a risk of physical harm than the

less passive, more aggressive behavior underlving

an escape from custody.” Jd. at 691. The Court

continued: “Conceptually speaking, the erime

amounts to a form of inaction, a far cry from the

‘purposeful, violent, and aggressive conduct’

potentially at issue when an offender uses explo-

sives against property, commits arson, burgles a

dwelling or residence, or engages in certain forms

of extortion.” Jd. at 692 (quoting Begay, 128 S.Ct.

at 1586) (emphasis added). The Court concluded

that a conviction for failure to report for custody

was not a violent felony under the residual clause.

Id. at 693.

Chambers is relevant here in two respects.

Kirst, as a general matter, Chambers confirms

that the required comparison between the predi-

cate and enumerated crimes tests whether the

26a

predicate crime is characterized by aggressive con-

duct with a similar potential for violence as the

enumerated offenses. And second, more specif}-

cally to the point here. Chambers implies that

unlike a failure to report, which does not have

these characteristics, an escape from physical cus-

tody would meet this test.

Our decision in Spells was issued before Cham-

bers, but we noted there that in the ordinary case,

“|tlaking flight Jin a vehicle} calls the officer to

give chase, and aside from any accompanying risk

to pedestrians and other motorists, such flight

dares the officer to needlessly endanger himself in

pursuit.” Spells, 4387 F.3d at 752. In West, also

decided before Chambers, the Tenth Circuit elab-

orated on this point:

(T]he offense of failing to stop at the command

of a police officer will typically lead to a con-

frontation with the officer being disobeyed. It

is likely to lead, in the ordinary case, to a

chase or at Jeast an effort by police to appre-

hend the perpetrator. All of these circum-

stances increase the likelihood of serious

harm to the officers involved as well as any

bystanders that by happenstance get in the

way of a fleeing perpetrator or his pursuers.

For these reasons, we conclude that the crime

of failing to stop at an officer's command 1s, in

the ordinary case, an offense involving violent

and aggressive behavior.

990 F.3d at 970.

The Fifth Circuit's decision in Harrimon had the

benefit of both Begay and Chambers, and the court

drew the same implication from Chambers as we

—~

—

Although, as we have noted, the Eighth and the

Eleventh Cireuits have reached the opposite con-

clusion, see Jvler, 580 F.3d at 725-26; Harrison,

558 F.3d at 1295-96. we think our colleagues in

the Fifth, Sixth, and Tenth Circuits have the bet-

ter of the argument.’ Accordingly, we hold that

Wisconsin’s” vehicular-fleeing erime_ satisfies

Begay's “violent and aggressive’ requirement. Dis-

muke’s fleeing conviction was therefore properly

classified as a violent felony for purposes of the

ACCA. His resulting 15-year sentence, the manda-

tory minimum under the ACCA, was statutorily

required.

AFFIRMED.

[tis important to note again, see supra note 28, that

the Florida statute before the Eleventh Cireuit in Harrison

was broader than the Wisconsin statute at issue here. The

particular subsection of the Florida statute at issue in Har

rison was the base offense of willful fleeing or attempting to

elude; a separate section of the statute, not at issue in Har

rison, covered fleeing by accelerated speed or by “wanton

disregard for the safety of persons or property.” 558 F.3d at

1290. In holding that the base offense of willful fleeing was

not a violent felony, the Eleventh Circuit distinguished the

version of the crime that entailed fleeing at high speed or

with wanton disregard for safetv: “Of course, our conclusion

would be different were the statute to criminalize conduct

that, in the ordinary case, involves an offender stepping on

the gas and driving away recklessly without regard for the

safety of others.” Td. at 1295. Thus, our conclusion here

regarding the Wisconsin statute—which requires fleeing by

accelerated speed or extinguished vehicle lights-—actualls

parts company with just one circuit, the Eighth, in 7'vler,

580 F.3d at 726

2Qa

UNITED STATES DISTRICT COURT

KASTERN DISTRICT WISCONSIN

No. 07-CR-81

March 13, 2008

UNITED STATES OF AMERICA.

Plaintiff,

ANTHONY DISMUKE.,

Defendant.

Tracy M. Johnson, United States Department of

Justice (Ed-Wi) Office of the U.S. Attorney, Mil

waukee, W1, for Plaintiff.

SENTENCING MEMORANDUM

LYNN ADELMAN, District Judge.

A jury convicted defendant Anthony Dismuke of

possessing firearms as a felon, 18 U.S.C. § 922(g¢),

and I set the case for sentencing. In imposing sen-

tence, the district court must first calculate the

suideline range, then select an appropriate sen

tence under all of the factors set forth in 18 U.S.C

§ 3553(a). United States v. Holt, 486 F.3d 997

1004 (7th Cir.2007). In this case, the pre-sentence

report ("PSR") concluded that defendant qualified

as an armed career criminal under 18 U.S.C

S$ 924(e), therefore subject a 15 vear mandatory

minimum. Defendant objected, but 1 concluded

that the report accurately designated him an

armed career criminal. 1 then imposed a sentence

of 15 years imprisonment

I. GUIDELINE-ACCA CALCULATION

Generally, the offense of felon in possession cal

ries a maximum sentence of 10 years imprison

ment. 18 U.S.C. § 924(a)(2). However, under the

Armed Career Criminal Act (“ACCA), if the defen

dant has three or more prior convictions for a “vio

lent felony” or “serious drug offense” he is subject

to a sentence of 15 years to life. 18 U.S.C. § 924(e)

In the present case, the PSR designated defendant

an armed career criminal based on three Wiscon-

sin convictions: (1) burglary in 1985, (2) armed

robbery in 1985 and (3) fleeing in 1998. (PSR

7 19.)' Of these three potential predicate offenses,

defendant challenged only the fleeing conviction

He did in his objections also seek to exclude as

possible predicates other convictions based on

}

i

i

their age, restoration of his civil rights under

(he report also referenced a possession of mari

with intent to deliver conviction, but this conviction did not

‘arry a Maximum term of imprisonment of LO Vears or mort

it did not qualify under § 924(e)(2)(A)

31a

§ 921(a)(20), and/or lack of proof that he was rep-

resented by counsel. However, because I concluded

that defendant's more recent Wisconsin convic-

tions sufficed, | did not address these other argu-

ments under Fed.R.Crim.P. 32(1)(3).

First, the parties agreed that defendant’s 1985

burglary and armed robbery convictions qualified

as violent felonies under § 924(e)(2)(B). These two

convictions did not score criminal history points

under the sentencing guidelines, but there is no

similar time limit under § 924(e). See United

States vu. Wright, 48 F.3d 254, 255-56 (7th

Cir.1995) (holding that the ACCA “does not place

any time restrictions on the felonies” and declin-

ing to adopt the temporal limits contained in the

suldelines or Fed.R.Evid. 609(b)).

Second, I found that defendant’s 1998 fleeing

conviction also qualified. In United States uv.

Howze, 343 F.3d 919, 921-22 (7th Cir.2003), the

court of appeals held that fleeing under Wisconsin

law is a violent felony under the ACCA. The court

noted that such conduct always creates a serious

potential risk of physical injury to another. See

also United States v. Rosas, 410 F.3d 332 (7th

Cir.2005) (holding that fleeing is a crime of vio-

lence under the career offender guideline).

Defendant attempted to distinguish Howze on

the grounds that the state complaint charged him

with “attempted eluding.” However, the judgment

lists the conviction as “Vehicle Operator Flee/

Elude Officer.” In any event, Wis. Stat. § 346.04(3)

does not create two different offenses, one com-

plete and the other inchoate. Rather, as the Howze

court noted, the statute makes it a crime to

““‘knowlngly flee or attempt to elude any traffic

officer.” 343 F.3d at 921 (quoting Wis. Stat.

§ 346.04(3)). Further, as the government noted,

defendant’s conviction could be considered

“attempted” eluding only because the police

caught him. It would make little sense to have

classification of this offense turn on whether the

defendant was ultimately successful in getting

away; the risk of injury is the same regardless of

the outcome of the chase. Cf. James v. United

States, 127 S.Ct. 1586, 1591 (2007) (“We conclude

that nothing in the plain language of clause (11),

when read together with the rest of the statute,

prohibits attempt offenses from qualifying as

ACCA predicates when they involve conduct that

presents a serious potential risk of physical injury

to another.”).

Defendant cited legislative history materials on

the nature of the risk created by this crime. It is

true that the Wisconsin legislature recently cre-

ated a misdemeanor version of the crime under

Wis. Stat. § 346.04,” in recognition of the fact that

some offenses did not warrant felony treatment.

However, defendant was convicted of a felony vio-

lation of § 346.04(3), such offense conduct remains

a felony today, and I am bound by the Seventh

Circuit's characterization of that offense.

Defendant also noted that there need not be any

pursuit by the officer in a fleeing case, meaning

Specifically, § 346.04(2t) provides: “No operator of a

vehicle, after having received a visible or audible signal to

stop his or her vehicle from a traffic officer or marked police

vehicle, shall knowingly resist the traffic officer by failing to

stop his or her vehicle as promptly as safety reasonably per-

mits.” This offense is a class A misdemeanor. Wis. Stat

§ 346.17(2t)

O08

that the offense can be committed under circum-

stances that do not pose a serious risk. However,

the Seventh Circuit has held that the ACCA is

concerned with “an assessment of risk rather than

actual outcomes,’ Howze, 343 F.3d at 922, and the

court of appeals has concluded that a violation of

§ 346.04(3) presents such a risk under a categor-

ical approach. See also United States v. Golden,

466 F.3d 612, 614 (7th Cir.2006) (stating that the

benchmark should be the possibility of violence,

not whether one can postulate a non-confronta-

tional hypothetical scenario).

Defendant cited United States v. Sparks, 87

F.3d 276 (9th Cir .1996), but that case concerned

a Nevada statute prohibiting “invasion of the

home,” a crime the Ninth Circuit found created

some risk of injury, but “not enough of a risk.” The

Seventh Circuit reached a different conclusion

regarding fleeing, so Sparks did not help defen-

dant.

Finally, defendant noted that the Supreme

Court recently heard argument in a case address-

ing whether drunk driving qualifies as a violent

crime under the ACCA. The defense argument in

that case primarily appears to be that drunk driv

ing should not qualify because it does not require

any mens rea. See Transcript of Oral Argument at

6, Begay v. United States, No. 06-11543 (Jan. 15,

2008). However, the fleeing statute at issue in this

case requires the defendant act “knowingly.”

Thus, it is not comparable with drunk driving in

that respect.

Therefore, I found that defendant qualified as

an armed career criminal based on these three

Afte

It} PO

vreate

enten

rection

(H) the need te

I

(

paritic and

/) the need to

tims of the otf

( Y JDVDID(A)

considering the

\ sentence that 1

than necessary

Ing Just pun

of the public

defendant. /d. In mak!

district court may not presume tl

entence 1

the correct

tine

ufficient but

to satisly the purpo

hment deterrence

and rehabilitation of th

ng this determination, th

lat the guidelins

one or elevate the guid

lines above the other factors in the statute. See

e.g., Rita United States. 127 S.C

(2007):

l/nited States 1

864-65 (7th Cir.2007)

Wate)

States

car. we

{

'

127 S.Ct. 2456, 246

Schmitt, 495 F.3d 860

U/nited States ' Sachsen

191 F.3d 680, 685 (7th Cir.2007): Unitea

De TTLaL Te ¢ 159 I sd {9] i944 QD (/th

) Ceri LerLe (‘4 )

OO

56a

Rather, it is the statute’s “parsimony provision

that serves as ‘the guidepost for sentencing deci

sions post-Booker.’” United States v. Santoya, 493

fF Supp.2d 1075, 1077 (f.D.Wis.2007) (quoting

United States v. Ferguson, 456 F.3d 660, 667 (6th

Cir.2006)). However, “Booker does not license dis-

trict courts to employ § 88538 to disregard statu

tory mandatory minimum sentences.” United

States v. James, 487 F.3d 518, 530 (7th Cir. 2007).

B. Analysis

1. Nature of Offense

On January 29, 2007, police executed a search

warrant at 2528 West Locust Street, Milwaukee,

which they believed to be defendant’s home.

Defendant and his granddaughter were present at

the time, and officers recovered two handguns

from a bedroom that contained various identifiers

for defendant. Defendant also made various state

ments to the officers about the guns. Defendant

later denied that he lived there or knowingly pos-

sessed the guns, but the jury concluded otherwise

and convicted him of felon in possession.

The record contained no evidence that defendant

ever used the guns, threatened anyone with them,

or carried them on his person. Therefore, the

offense conduct was not in any way agpravated.

2. Character of Defendant

Defendant was fifty-one years old and had a

serious and very lengthy record containing crimes

of violence, theft, drug offenses and gun cases.

Although his violent offenses seemed to be in the

> hard

ola

past, he continued to commit crimes as he aged,

including convictions for operating a vehicle with-

out owner’s consent and possession with intent to

deliver marijuana within the past four to five

years. He also had little employment record, par-

ticularly for someone his age.

Defendant was married from 1991 to 2003 and

had three adult children. His ex-wife made posi-

tive statements to the PSR writer, as did his

daughter. Numerous family members appeared in

support at defendant's sentencing hearing. I also

received a positive letter from his pastor, indi-

cating that defendant was involved in the church.

Defendant reported some health problems, but

it was not clear how serious they were. He admit-

ted a problem with alcohol, as well as past use of

marijuana and cocaine. His early screens on

pre-trial release in this case were positive for mar-

ijuana, but negative thereafter. He largely com-

plied with pre-trial release before he was

remanded after the jury’s verdict.

3. Guidelines and Purposes of Sentencing

The gitdelines called for a term of 210-262

months and the statute required a sentence of 180

months. Under all of the circumstances, I found a

sentence of 180 months sufficient but not greater

than necessary. No more was needed to provide

just punishment. The guns were found under a

bed in a shared home, not on defendant's person

or in his car. There was no indication that he ever

used the guns or possessed them for any purpose

other than protecting the home. See 18 U.S.C.

§ 3553(a)(2)(A).

a0

Osa

Defendant's record was serious. but a sentence

of 15 vears was sufficient to protect the public. See

§ 3553(a)(2)(C). He will be in his mid-60’s when

released. I also considered the fact that defen-

dant’s criminal history category was increased

from IV to V based on the inclusion of the 1997

Marijuana possession conviction, which was

obtained in municipal court, apparently by

default, and scored by only a few days. But for

that conviction, the guideline range would have

been 188-235 months.

Likewise, a 15 vear sentence—three times as

long as any previous sentence he had served—was

sufficient to deter him from re-offending. See

§ 3553(a)(2)(B). This sentence varied a bit from

the guidelines, but was supported by the particu-

lar facts of the case. so it did not create unwar-

ranted disparity. See § 3553(a)(6).

Ill. CONCLUSION

Theretore, | committed defendant to the custody

of the Bureau of Prisons for 180 months. I rec-

ommended that he be placed at a facility as close

to Milwaukee as possible and participate in any

substance abuse treatment available. including

the 500 hour program. Upon release, 1 ordered

him to serve three years of supervision, with a

drug aftercare and other conditions that appear in

the judgment.

ova

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA.

ANTHONY DISMUKI

y » t

VPefendant

DECISION AND ORDER

Defendant Anthony Dismuke, charged with pos-

sessing firearms as a felon. moved to suppress ev1

dence seized from his home pursuant to a search

warrant. He argued that the warrant application

fatled to establish probable cause for the search

and sought an evidentiary hearing on the issue of

whether the officers acted in good faith in applyvy-

ing for and executing the warrant.

The motion was referred to a magistrate judge.

who declined to hold a hearing and recommended

that the motion be denied. Defendant objects.

requiring me to the review the matter de novo.

Fed. R. Crim. P. 59(b)(3).

FACTS

On January 28, 2007, Milwaukee Police Depart

ment ( MPD") Officer Anthony Randazzo applied

for a search warrant. In his affidavit, Randazzo

averred that on January 27, 2007, he was con

tacted by a reliable confidential informant who

stated that he had information about a subject in

possession of at least three firearms. The infor-

mant stated that he had seen Anthony Dismuke.

black male, in possession of at least three firearms

within the last week. The informant further stated

that Dismuke lived at 2528 West Locust Street

The informant was able to identify Dismuke from

a photograph as the person he had seen with a

gun in his possession within the last week at 252

West Locust. The informant stated that Dismuke

he

possessed two pistols and a shotgun. Randazzo

stated that he confirmed through questioning that

the informant was familiar with firearms and

knew the difference between semi-automatic

weapons, revolvers, rifles. shotguns and non

firearm weapons like compressed air guns

Randazzo averred that he checked Wisconsin

court records and learned that Dismuke had been

convicted of three felonies. Randazzo further

averred that on January 27, 2007, he was able t

contirm through driver's license information that

Anthony Dismuke lived at 2528 West Locust

Street. Randazzo stated that he also located an

auto parked in the rear of 2528 West Locust which

listed to Dismuke at the Locust Street address

Randazzo further stated that he knew 2528 West

Locust to be a two story residence with brown sid

lack root

ing, vellow trim anda b

dla

Randazzo averred that disclosure of the infor-

mant’s identity would end the informant’s use-

fulness to the MPD, discourage citizens from

cooperating with the police and result in possible

harm to the informant. Based on the informant’s

statement that Dismuke sells guns from his res1-

dence and keeps his own guns in the residence for

protection, as well as Dismuke’'s record, Randazzo

requested permission to enter without knocking.

A Milwaukee County Court Commissioner

issued a no-knock warrant on January 28, 2007,

which MPD officers executed the next day.

ll. DISCUSSION

A. Applicable Legal Standard

In ruling on a motion to suppress evidence

recovered pursuant to a search warrant, the court

emplovs a sequential two-step test. See United

States v. Koerth, 312 F.3d 862. 866 (7th Cir. 2002).

The court first determines whether there is sub-

stantial evidence in the record supporting the

magistrate’s finding of probable cause to issue the

warrant. United States v. Llovd, 71 F.3d 1256.

1262 (7th Cir. 1995). ‘When, as in the present case,

“the affidavit is the only evidence presented to the

warrant-issuing magistrate, ‘the warrant must

stand or fall solely on the contents of the affi-

davit.’” Koerth, 312 F.3d at 866 (quoting United

States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967)).

Probable cause to issue a warrant exists when

the warrant application alleges facts sufficient to

induce a reasonably prudent person to believe that

a search will uncover evidence of a crime. Unifed

42a

States vu. Peck, 317 F.3d 754, 756 (7th Cir. 2008).

The Supreme Court has explained that:

The task of the issuing magistrate 1s slin-

ply to make a practical, common-sense

decision whether, given all the circum-

stances set forth in the affidavit before

him, including the “veracity” and “basis of

knowledge” of persons supplying hearsay

information, there is a fair probability

that contraband or evidence of a crime

will be found in a particular place.

lllinois vu. Gates, 462 U.S. 213, 238 (19883).

The reviewing court considers the warrant

application in a realistic and common sense man-

ner in order to determine whether it alleges spe-

cific facts and circumstances that would permit

the issuing magistrate to reasonably conclude that

the evidence sought to be seized was associated

with the crime alleged and located in the place

indicated. Koerth, 312 F.3d at 866-67. Where the

warrant application is supported by an infor-

mant’s tip, the reviewing court considers:

(1) whether the informant personally

observed the events, (2) the degree of

detail shown in the informant’s state-

ments, (3) whether the police indepen-

dently corroborated the information, (4)

the interval of time between the events

and application for a warrant, and (5)

whether the informant appeared in person

before the judicial officer who issued the

Warrant.

United States v. Mvkyvttuk, 402 F.3d 773, 776 (7th

Cir. 2005). No single factor is dispositive, and a

43a

deficiency in one may be compensated for by a

strong showing in another or by some other indi-

cation of reliability. Peck, 317 F.3d at 756; United

States v. Brack, 188 F.3d 748, 756 (7th Cir. 1999).

Ultimately, the reviewing court must give the

magistrate’s determination of probable cause con-

siderable weight and resolve doubtful cases in

favor of upholding the warrant. United States v.

Quintanilla, 218 F.3d 674, 677 (7th Cir. 2000).

If the court finds the warrant deficient, it must

then proceed to the second step of the analysis.

which is to determine whether the executing

police officer could “have reasonably believed that

the facts set forth in the affidavit were sufficient

to support a magistrates finding of probable

cause. Koerth, 312 F.3d at 866 (citing United

States v. Leon, 468 U.S. 897, 920-24 (1984)). The

government bears the burden of demonstrating by

a preponderance of the evidence that the police

relied in “good faith” on the magistrate’s decision

to issue the warrant. Averth, 312 F.3d at 868. An

officer's decision to seek a warrant is prima facie

evidence that he acted in good faith. Peck, 317

F.3d at 757; Koerth, 312 F.3d at 868. “The defen-

dant must defeat this presumption with evidence

that the issuing magistrate judge wholly aban-

doned his judicial role or that the officer's affi-

davit was so lacking in indicia of probable cause

as to render official belhef in its existence entirely

unreasonable.” United States v. Wiley, 475 F.3d

908, 917 (7th Cir.), cert. denied, 127 S. Ct. 2966

(2007).

B. Analysis

1. Probable Cause

Probable cause supported the warrant in the

present case. The informant gave Officer Ran-

dazzo recent, first-hand information, stating that

he saw defendant with three firearims within the

past week. See Lloyd, 71 F.3d at 1263 (recognizing

that an informant’s first-hand observations sup

port a finding of rehability): United States v.

Muhammad, 928 F.2d 1461, 1465 (7th Cir. 1991)

(upholding warrant based on an informant’s state

ment that he observed a gun in the defendant's

residence within a week of the warrant applica-

tion): United States v. Price, 888 F.2d 1206, 1209

(7th Cir. 1989) (upholding warrant based on

“recent, first-hand information’).' The informant

provided defendant's full name and address, and

identified defendant from a photograph. See, e.g.,

United States v. Madden, 220 Fed. Appx. 290, 292

(5th Cir. 2007) (finding probable to search where

the informant identified the defendant “by name

Defendant contends that the informants statement

that he saw the guns “within the last week” is vague. How

ever, in context it appears plain that the informant made his

observation some time between January 20 and January 27

Courts have held that such passage of time 1s insignificant

when dealing with a continuing offense such as firearm pos

session. See, e.g., United States v. Maxim, 55 F.3d 394, 397

(8th Cir. 1995); see also United States v. Harju, 466 F.3d

602, GOS (7th Cir. 2006) (noting that “only three weeks had

elapsed since the gun had been seen in Mr. Harju’s posses

sion on his property, and, unlike small amounts of drugs or

cash, the gun was not jikely to have been sold (or consumed)

during that period of time’)

45a

and by photograph”); United States v. Caldwell,

423 F.3d 754, 760 (7th Cir. 2005) (finding probable

cause based in part on a confidential informant’s

identification of the defendant from a photo). Fur-

ther, the informant described the firearms defen-

dant possessed as two pistols and a shotgun, and

Randazzo confirmed that the informant under-

stood the difference between various types of

guns. Randazzo also confirmed the informant’s

information by checking driver’s license records,

learning that defendant lived ..t the address the

informant provided, and by personally inspecting

the residence, observing a car listed to defendant

parked behind it. Finally, Randazzo checked court

records, learning that defendant was a convicted

felon and thus could not lawfully possess firearms.

See, e.g., United States v. Smith, 182 F.3d 473 (6th

Cir. 1999) (upholding warrant based on an infor-

mant’s tip that he saw the defendant with two pis-

tols, where police independently confirmed that

the defendant was a convicted felon and lived at

the address provided by the informant).

It is true that Randazzo provided no support for

his assertion that the informant was “reliable.”

See Koerth, 312 F.3d at 867 (stating that an asser-

tion that an informant is reliable is, absent any

supporting factual information, entitled to no

weight). However, reliability may be shown by

means other than the informant’s past record of

reliability, such as “through independent confir

mation or personal observation by the police, or by

other methods.” United States v. Scott, 19 F.3d

1238, 1242 (7th Cir. 1994). Randazzo corroborated

the informant’s information in the present case by

having the informant identify defendant from a

46a

photo, checking defendant's address against

driver's license records, and personally traveling

to defendant’s residence, where he saw a car listed

to defendant parked. Randazzo also quizzed the

informant on his knowledge of firearms. Given

this corroboration, Randazzo’'s failure to provide

detail on the informant’s situation and past reli-

ability does not defeat probable cause.

Defendant also points to some uncertainty in

the affidavit about how many firearms the infor-

mant saw inside 2528 West Locust. Specifically,

while the informant indicated that he saw defen-

dant “in possession of at least 3 firearms within

the last week,” he also stated that he saw defen-

dant with “a gun... at the address of’ 2528 West

Locust. (Aff. for Search Warrant [R. 10-2] 4 4,

emphasis added.) However, even if the informant

only saw one gun (rather than three) inside 2528

West Locust, there was still probable cause to

search for that gun. Furthers, “[clourts have

acknowledged that individuals who own guns keep

them at their homes.” Smith, 182 F.3d at 480; see,

e.g., United States v. Anderson, 851 F.2d 727, 729

(4th Cir. 1988) (collecting cases holding that it is

reasonable to assume that individuals who have

guns keep them in their homes); see also United

States. v. Anderson, 450 F.3d 294, 303 (7th Cir.),

cert. denied, 127 S. Ct. 532 (2006) (“Probable

cause does not require direct evidence linking a

crime to a particular place. Instead, issuing judges

are entitled to draw reasonable inferences about

where evidence is likely to be found given the

nature of the evidence and the type of offense.”)

(internal citation and quote marks omitted). Thus,

the fact that the informant did not specify the

47a

exact number and location of firearms within 2528

West Locust also does not defeat probable cause.’

Therefore, for all of these reasons and those

stated by the magistrate judge, I find that the

warrant was supported by probable cause.”

2. Good Faith

Even if the warrant was not supported by prob-

able cause, I would uphold the search under Leon.

The fact that the officers applied for a warrant

represents prima facie evidence that they acted in

good faith. The record contains no evidence that

the court commissioner abandoned his neutral,

detached judicial role, and the information con-

tained in the warrant application was sufficient to

allow the officers to reasonably believe that prob-

able cause existed. While Randazzo’s affidavit

could have included more information, courts have

found good faith reliance on less. See Harju, 466

F.3d at 603-04 (applying good faith exception to

warrant based on statement from unidentified

informant that his relative had seen the defendant

P

The informant also told Randazzo that defendant

“keeps his own guns in the residence to protect him from

people that may want to rob him.” (Aff. for Search Warrant

1 8.) Thus, in addition to drawing the inference that persons

who own guns often keep them in their homes, the issuing

commissioner had specific information that defendant kept

his guns in his house.

° Before the magistrate judge, defendant also argued

the officers failed to execute the warrant “forthwith,” ren

dering stale the information upon which the warrant was

based. The magistrate judge properly rejected this argu

ment, and defendant does not object to her analysis, which

1 adopt as my own. (Recommendation [R. 20] at 8-10.)

4%a

with a gun in his house about three weeks ear

lier).

Defendant asks me to conduct an evidentiary

hearing on the issue of good faith. He proffers evi

dence which, he contends, demonstrates that Ran

dazzo misled the issuing court commissioner. See

Peck, 317 F.3d at 757 (stating that the good faith

exception does not apply if the officers were reck

less or dishonest in preparing the affidavit).

Specifically, he contends that Randazzo over

stated the contents of Department of Motor Vehi

cle (“DMV”) records in two ways.

First, Randazzo averred that driver's license

information showed that defendant “does live at

2528 W. Locust St.” (Aff. for Search Warrant 9 4,

emphasis added). Defendant argues that although

DMV records show that he received a driver's

license with that address on February 12, 2002,

such records could not have shown that he cur

rently lived at 2528 West Locust in January 2007,

when the warrant issued. However, nothing in the

DMV records defendant submits (R. 28-2) suggests

that defendant had moved or used a different

address in January 2007. It was entirely reason-

able for Randazzo to believe that defendant con

tinued to live at 2528 West Locust, the only

address contained in the records, see Wis. Stat.

§ 343.22 (requiring a holder of a driver’s license to

notify the department of a change of address

within ten days), and | cannot conclude that Ran

dazzo attempted to mislead the court commis

sioner by using the present tense in discussing

these DMV records.

Second, Randazzo averred that the auto he saw

parked outside 2528 West Locust “lists to Dim

uke at the addre of 2528 W. Locus Street.” (Afi

for Search Warrant 94.) Defendant states that

DMV records show that the vehicle registration

for the car in question expired on October 31

2003, years before the warrant issued. (R. 28-3.)

Thus, he contends that it was misleading for Ran

dazzo to imply that the vehicle currently listed to

defendant at 2528 West Locust. However, no other

address appears in the vehicle records defendant

ubmits. Further, the records show that the ca

was not only registered to defendant at 2528 West

Locust but also titled to him at that address. Ran

dazzo did not specifically rely on vehicle regi

tration as opposed to title records. In any event

given the fact that 2528 West Locust was the only

address appearing in all of defendant’s DMV

records, I see nothing slippery in Randazzo’s us

of the present tense in discussing those record

Therefore, defendant has failed to make “a sub

tantial preliminary showing that a false state

ment knowingly and intentionally, or with

reckless disregard for the truth, was included by

the aftfiant in the warrant altidavit.” Franks

Delaware 38 S 154 155-56 (1978) NOCO?

ingly. hi request for a hearing denied

lil, CONCLUSION

PHEREFORE, (T IS ORDERED that the magi

ite judge's recommendation (R. 20) is ADOPTED

ind the motion to suppres: (RHR. TO. 1D) as DENIED

Dated at Milwaukee, Wisconsin. this 2Ist day of

\ugust, 200%

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LYNN ADELMAS

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