BAUER, Circuit Judge.
William Otero and James Woods were convicted of conspiracy to possess with intent to distribute at least 500 grams of cocaine (count one), in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846
On appeal, Otero challenges the denial of his motion to suppress evidence seized from his home pursuant to a federal search warrant, arguing that the affidavit supporting the search warrant did not establish probable cause and that the good faith exception to the warrant requirement is inapplicable. He also argues that the district court erred in sentencing him to 300 months' imprisonment for maintaining a drug-house, considering that the statutory maximum for violating 21 U.S.C. § 856(a)(1) is 240 months' imprisonment.
In his appeal, Woods contends that the district court improperly instructed the jury regarding the standard of proof necessary to establish venue. He also asserts a number of challenges to his sentence. For the reasons set forth below, we affirm the defendants' convictions, Woods' sentence, and Otero's sentence on the conspiracy charge, but we vacate and remand Otero's sentence as to count three.
In October of 2004, the Drug Enforcement Administration ("DEA") received a tip from a confidential informant that Otero and Woods were distributing cocaine. On November 15, 2004, DEA Special Agent Enrique Carlton contacted Woods to see if he would sell him cocaine. After a series of phone calls, Woods agreed to meet Carlton the next day in Kenosha, Wisconsin. During the early morning hours of November 16, Woods nearly ran over a Kenosha police officer. After the encounter with the officer, Woods contacted Carlton and told him that he would not deliver the cocaine in Wisconsin. Instead, Carlton met Woods in a parking lot at the Gurnee Mills Mall in Illinois and paid him $1,650 in exchange for two ounces of cocaine. Following the transaction, Woods met Otero and Victor Cabrera, the supplier of the cocaine, at a nearby restaurant and gave Otero the money obtained during the sale.
On November 17 and 18, Carlton contacted Woods several times, attempting to schedule another controlled buy. Woods agreed to sell nine more ounces of cocaine to Carlton but refused to meet him in Kenosha, Wisconsin. Woods explained that he would not travel to Kenosha to deliver the cocaine because he feared that there was a warrant out for his arrest in Wisconsin based on the November 16 incident that he had with the Kenosha police officer. On November 19, 2004, Cabrera drove with Woods to the Gurnee Mills Mall where Woods delivered the cocaine to Carlton. After the transaction, both Woods and Cabrera were arrested.
Following his arrest, Woods told the investigating agents that he had obtained the cocaine that morning from Otero at Otero's residence located at 6328 73rd Street, Apartment 206, Kenosha, Wisconsin. He also stated that while picking up the drugs, he observed a scale and additional ounces of cocaine on a table inside Otero's residence. He claimed that he had previously seen Otero with a firearm in the apartment, but he had not seen Otero with a firearm that day. Finally, Woods told the agents that Otero typically hid his cocaine in the apartment's garage or bedroom.
On November 19, 2004, based on Carlton's affidavit, a United States magistrate judge issued a search warrant for Otero's apartment and one-car garage. The agents executed the warrant and found a bottle of inositol, plastic baggies, "corner cuts" from plastic baggies, a glass pipe wrapped in foil, and other paraphernalia used to smoke crack cocaine. The agents also found a number of items in Otero's bedroom and garage that had cocaine residue on them, including a scale, measuring cup, table, razor blade, spoon, and plastic film container.
Before his trial, Otero moved to suppress the evidence obtained during the search, arguing that there was no probable cause to issue the warrant. Additionally, Otero argued that Woods' pre-arrest statements (that he would not travel to Kenosha to deliver the cocaine because of his earlier run-in with the police) and post-arrest statement (that he had obtained the cocaine that morning from Otero at his apartment in Kenosha) were inherently unreliable and rendered Carlton's affidavit internally inconsistent. The magistrate judge disagreed and found that the search warrant was supported by probable cause. The district court adopted the magistrate judge's recommendation and denied Otero's motion to suppress.
The items seized and statements made by Otero during the search of his residence were introduced into evidence at his trial; the jury returned a verdict of guilty on each count. The district court sentenced him to 300 months' imprisonment on each count to be served concurrently.
In a separate jury trial, Woods was also found guilty. The district court sentenced Woods as a career offender to 300 months' imprisonment as to count one and 48 months as to count two, with the terms running concurrently. Both Otero and Woods filed these timely appeals, which we have consolidated.
On appeal, Otero renews his argument that the search warrant was not supported by probable cause. We review de novo the district court's determination that the supporting affidavit provided probable cause to believe that a search would uncover evidence of a crime. United States v. Peck, 317 F.3d 754, 756 (7th Cir.2003). We have stated:
We agree with the magistrate judge that the affidavit did contain enough evidence to establish probable cause to search Otero's apartment. First, much of the information in the affidavit was based on Woods' firsthand observations. Carlton's affidavit set forth Woods' post-arrest statement that he had obtained the cocaine that morning from Otero at Otero's apartment.
Moreover, even if probable cause was lacking, Otero has failed to meet his burden of demonstrating that the goodfaith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should not apply here. In Leon, the Supreme Court held that evidence seized pursuant to a subsequently invalidated search warrant need not be suppressed if the officers relied in good faith on the magistrate judge's issuance of the warrant. Leon, 468 U.S. at 924, 104 S.Ct. 3430. An officer's decision to obtain a warrant is prima facie evidence that he or she was acting in good faith. United States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir.2005). A defendant can rebut the presumption of good faith only by showing that the judge issuing the warrant abandoned his/her detached and neutral role, the officers were dishonest or reckless in preparing the affidavit, or the warrant was so lacking in probable cause as to render the officer's belief in its existence entirely unreasonable. Peck, 317 F.3d at 757; Leon, 468 U.S. at 923, 104 S.Ct. 3430.
Otero does not suggest that the magistrate judge simply rubber-stamped the application in issuing the search warrant. Instead, he argues that Carlton could not have harbored an objectively reasonable
Although Woods told Carlton that he would not travel to Wisconsin to deliver the cocaine due to his November 16 run-in with the Kenosha police, he did not tell Carlton that he would never travel to Kenosha for any reason. Woods' pre-arrest statements did not preclude the possibility of him traveling to Kenosha the morning of November 19 to pick up cocaine from Otero, and, after his arrest, that is precisely what Woods told Carlton he had done. Carlton had no reason to believe that Woods was being untruthful when he identified Otero as his supplier and there is no evidence in the record to suggest that Carlton knew that Woods' statement was false when the warrant was issued. The warrant was obtained and relied upon in good faith.
Otero also asserts that the district court erred in determining his sentence. Otero was convicted of both conspiracy to distribute at least 500 grams of cocaine (count one) and maintaining a drug-trafficking place (count three). The district court sentenced Otero to 300 months' imprisonment as to each count, with the sentences to run concurrently. Under 21 U.S.C. § 856(b), any person who violates § 856(a) shall be sentenced to a term of imprisonment not more than twenty years. Given the statutory maximum, the district court erred in sentencing Otero to a term of imprisonment exceeding twenty years on count three. We vacate Otero's sentence as to count three and remand for re-sentencing on this count.
Woods begins his appeal by arguing that it was error for the district court to give a jury instruction that only required the government to prove by a preponderance of the evidence that venue existed in the Eastern District of Wisconsin. He argues that "[t]he Seventh Circuit employs a standard of beyond a reasonable doubt in proving venue." In United States v. Canino, 949 F.2d 928 (7th Cir.1991), we rejected a similar argument and reiterated that "the law of this circuit is that venue is shown by a preponderance of the evidence, which may include inferences drawn from circumstantial evidence." Canino, 949 F.2d at 942 (citations omitted). The district court's venue instruction was correct.
After the conviction, the probation officer prepared Woods' pre-sentence report ("PSR"). Because the PSR characterized Woods as a career offender, his base offense level increased from 24 to 34 and he received a criminal history category of VI. This resulted in a sentencing range of 262 to 327 months of imprisonment. Woods filed two objections to the PSR, arguing that he was entitled to an adjustment for acceptance of responsibility and that he was not a career offender.
Before Woods' sentencing hearing, Sean Smoker, a federal inmate and con artist serving a sentence for fraudulent use of a social security number, sent a letter to his own sentencing judge claiming that Woods had threatened the life of a federal prosecutor.
At sentencing, the district court rejected Woods' objections and found that the sentencing range calculated in the PSR was correct. In assessing Woods' history and characteristics, the district court took into consideration the information provided by Smoker. The district court concluded that the seriousness of the offense and the history and characteristics of Woods warranted a term of 300 months' imprisonment. Woods now argues that the district court erred in denying him acceptance of responsibility and in determining that he qualified as a career offender. He also contends that the court abused its discretion in considering the hearsay evidence from Smoker in assessing Woods' history and characteristics and that his background and his role in the offense did not justify his sentence.
Despite proceeding to trial, Woods argues that he is entitled to sentencing credit for acceptance of responsibility because he cooperated with law enforcement after his arrest. An acceptance of responsibility determination is a factual finding that we review for clear error. United States v. Leahy, 464 F.3d 773, 790 (7th Cir.2006) (citations omitted). United States Sentencing Guideline ("U.S.S.G.") § 3E1.1(a) provides that a court is to give a two-point reduction if the defendant "clearly demonstrates acceptance of responsibility for his offense." Woods' actions clearly demonstrate that he did not accept responsibility for his offense.
Although Woods cooperated with authorities immediately after his arrest, the government later discovered that Woods had lied to them about the source of the drugs. Additionally, Woods refused to cooperate with prosecutors during Otero's trial, declined to accept responsibility during the preparation of his pre-sentence report, and ultimately, he proceeded to trial and contested his guilt. Because Woods failed to accept responsibility for his offense, the district court did not err in denying Woods a sentencing reduction pursuant to U.S.S.G. § 3E1.1.
Woods next argues that the district court erred in determining that he qualified as a career offender under U.S.S.G. § 4B1.1. Whether the district court erred in sentencing Woods as a career offender is a question of law that this court reviews de novo. United States v. Kindle, 453 F.3d 438, 440 (7th Cir.2006). Under the Guidelines, a defendant qualifies as a career offender if three criteria are met: (1) the defendant is over 18 at the time he committed the instant offense; (2) the instant offense is a felony that constitutes either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions for either crimes of violence or controlled substance offenses. See U.S.S.G. § 4B1.1.
Here, the first two elements are not in dispute: Woods was over 18 years old when he committed the instant offense and
Woods argues, however, that the robbery does not constitute a "crime of violence," and that because he was a minor at the time of this offense, the robbery does not meet the definition of "prior felony conviction." We disagree.
The Guidelines define a "crime of violence" as:
U.S.S.G. § 4B1.2(a) (emphasis added). In 1990, Woods was convicted of violating Wis. Stat. § 943.32(1)(a), which has as a necessary element the use of force against a victim.
Finally, Woods argues that his sentence was "oppressive," arguing that his background and his role in the offense did not justify 300 months' imprisonment. Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences for reasonableness. A sentence within a properly calculated Guidelines range is presumptively reasonable, see Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168
Here, the district court judge correctly calculated Woods' advisory Guidelines range. The district court then considered the § 3553(a) factors and identified the factors that he was taking into consideration in determining Woods' sentence. First, the district court addressed the gravity of Woods' offense, commenting on the negative economic, social and personal effects associated with cocaine-trafficking. The district court then analyzed Woods' history and characteristics, noting a past replete with all sorts of combative, assaultive behavior and a personality characterized by hatred and anger. In assessing Woods' history and characteristics, the district court also took into consideration the death threat evidence offered by Smoker.
For the foregoing reasons, the decision of the district court is affirmed in part and vacated and remanded in part.
ROVNER, Circuit Judge, concurring.
After receiving information about Otero from the recently arrested Woods and Cabrera, the officers did literally nothing to corroborate any of that information. They did not check into Otero's criminal record. They did not check to see whether someone named Otero lived at the address given by Woods. Woods told the officers that Otero hid the drugs in his bedroom or in the detached garage. The garage was not detached, but the officers failed to verify even this detail, which would have been readily discernable. There were obvious credibility problems with Woods, an unproven informant who had just been arrested and had previously told the officers he refused to travel to Wisconsin, now claiming that he procured the drugs from Otero in Wisconsin that same day. There is nothing in the affidavit that compensates for the lack of independent police corroboration. The level of detail Woods provided is irrelevant if the officers did nothing to verify the accuracy of any of those details. I would find that there was insufficient evidence to support a finding of probable cause. See United States v. Peck, 317 F.3d 754, 756-57 (7th Cir.2003). However, because I agree with my colleagues that the Leon good faith exception applies, I concur in the majority's judgment affirming the district court's denial of the motion to suppress. Excepting the discussion of