# Appendix — Dismuke v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2236%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2011 - **Citation:** 564 U.S. 1018 ## Text NITED STATES COURT FOR THE SEVENTH N\ (i) 169 \rgued January Yecided Januar’, , ’ Paul 1 States of the Uniteec Plaintiff Appellee James A. Walrat J A. Walrath ames ip ella? A ] 2a 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 12a 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% | rit \Vdeln il LYNN ADELMAS District dudwc mnt --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2236%3A2. Public record. Not legal advice.