United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 25, 2010

 Decided May 26, 2010

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 09-2708

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ELI JONES, JR.,

Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District of Wisconsin

No. 09-CR-19-001

J. P. Stadtmueller,

Judge.

O R D E R

An informant’s tip led police to get a warrant and search the home of Eli Jones, Jr., a

felon, where they found a loaded gun on his night stand. After the district court denied his

motion to suppress the gun, Jones entered a conditional guilty plea to possession of a

firearm, 18 U.S.C. § 922(g)(1), in which he preserved his right to challenge the suppression

ruling. He was sentenced to 48 months’ imprisonment, 9 months below the advisory range

of 57 to 71 months. Jones filed a notice of appeal, but his appointed lawyers seek to

withdraw under Anders v. California, 386 U.S. 738 (1967), because they cannot identify any

nonfrivolous argument to pursue. Jones did not respond to counsel’s motion to withdraw,

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 09-2708 Page 2

see CIR. R. 51(b), so we limit our review to the potential issues identified in counsel’s facially

adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

The warrant to search Jones’s home was based on the affidavit of Officer Timothy

Bandt. Bandt attested that a confidential informant with extensive knowledge of different

types of firearms had seen Jones armed with a black, semi-automatic pistol at Jones’s home

within the last two weeks. Bandt also explained that the informant correctly picked Jones

out of a photographic lineup and knew Jones’s name, his exact address, and the location’s

physical layout. Moreover, according to Bandt, the informant had previously identified for

the police other locations containing firearms and illegal drugs, with two of the informant’s

tips leading to arrests and prosecutions. The informant did not, however, explain how he

knew Jones, why he was at the home, or where within the home he saw the gun.

Jones moved to suppress the gun on the ground that the affidavit did not provide

probable cause. The district court denied Jones’s motion, finding that there was probable

cause, and that even if there were not, suppression would be unjustified because the police

relied on the warrant in good faith.

At sentencing the district court assessed a base offense level of 24, see U.S.S.G

§ 2K2.1(a)(2), and deducted 3 levels for acceptance of responsibility, see U.S.S.G. § 3E1.1(a),

(b). Jones’s prior convictions gave him 6 criminal history points, and he received 2 more for

possessing the gun while he was on parole, see U.S.S.G. § 4A1.1(d), thus producing a

criminal history category of IV. That category, combined with his adjusted offense level,

yielded a guidelines range of 57 to 71 months. In selecting a sentence 9 months below the

bottom of that range, the district court credited Jones’s contention that he had confiscated

the gun from his daughter’s boyfriend to keep the boyfriend out of trouble. Still, the court

explained, the offense was serious because Jones knew he should have gone to the police

instead of taking matters into his own hands and keeping the gun, and because the loaded

gun endangered the children in his home.

Counsel first consider contesting whether probable cause supports the warrant. The

warrant’s validity rests solely on the affidavit’s strength in supplying a reasonable basis for

believing that a search will uncover evidence of a crime. See United States v. Peck, 317 F.3d

754, 755 (7th Cir. 2003); United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967). In assessing

that affidavit, we would consider the totality of circumstances, including the level of detail

provided by the informant and whether those details are based on personal observations,

the time interval between the observations and the warrant application, the informant’s

personal appearance before the warrant-issuing judge, and any corroboration of the

informant’s tip. United States v. Hollingsworth, 495 F.3d 795, 804 (7th Cir. 2007); United States
No. 09-2708 Page 3

v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002). No factor is determinative, and an insufficiency

in one could be compensated for by some other indicator of reliability. United States v.

Dismuke, 593 F.3d 582, 587 (7th Cir. 2010); United States v. Brack, 188 F.3d 748, 756 (7th Cir.

1999). In performing this inquiry, we would afford “great deference” to the issuing

magistrate’s conclusion. Dismuke, 593 F.3d at 586 (citing United States v. McIntire, 516 F.3d

576, 578 (7th Cir. 2008), cert. denied, 129 S. Ct. 73 (2008)).

Here, with deference to the issuing magistrate and for the same reasons that we

gave in Dismuke, the affidavit contains enough details to support probable cause. As in

Dismuke, the affidavit explains that the informant personally saw the defendant armed in

his home shortly before the warrant application, that he knew Jones’s exact address and

what he looked like, and that the informant knew how to distinguish among firearm types. 

The affidavit’s infirmities—a lack of detail about the precise location of a gun inside the

home or the relationship between informant and suspect, together with the informant’s

failure to appear before the magistrate—are the same as those that infected the warrant we

upheld in Dismuke. See 593 F.3d at 587-88. But the indicia of reliability here are stronger

than for the warrant we upheld in Dismuke because the informant in this case also had

previously given useful tips to police. See United States v. Garcia, 528 F.3d 481, 486 (7th Cir.

2008), cert. denied, 129 S. Ct. 422 (2008). Thus, we agree with counsel that it would be

frivolous to contest the existence of probable cause.

Counsel also consider challenging the district court’s alternative ruling that, even if

the affidavit were deficient, the officers’ good-faith reliance on the warrant should keep the

gun from being excluded. See United States v. Leon, 468 U.S. 897 (1984); United States v.

Otero, 495 F.3d 393, 398 (7th Cir. 2007). Such a challenge would matter only if we

concluded that probable cause was lacking. In any event, the affidavit was not so devoid of

cause to search that no reasonable officer would rely on it, so Jones could not rebut the

presumption of good faith created by the officers’ decision to seek a warrant. See Dismuke,

593 F.3d at 588 (“[U]nder the good-faith exception, the suppression of the fruits of the

search would not be appropriate in a close case” similar to Jones’s); United States v. Curry,

538 F.3d 718, 730 (7th Cir. 2008); United States v. Stevens, 380 F.3d 1021, 1025 (7th Cir. 2004).

Next, counsel observe that Jones does not wish to withdraw his conditional guilty

plea. Thus counsel rightly omit any discussion of the plea’s validity. See United States v.

Knox, 287 F.3d 667 (7th Cir. 2002).

Finally, counsel question whether Jones could argue that his sentence was

procedurally flawed or otherwise unreasonable. But, as counsel recognize, the district

court calculated the range correctly, considered the sentencing factors listed in 18 U.S.C.
No. 09-2708 Page 4

§ 3553(a), and adequately explained its reasons for imposing a sentence 9 months below the

bottom of the advisory range. See Gall v. United States, 552 U.S. 38 (2007); United States v.

Turner, 569 F.3d 637, 640 (7th Cir. 2009), cert. denied, 130 S. Ct. 654 (2009). We would

presume that a sentence below the correctly calculated guidelines range is not

unreasonably high, United States v. Jackson, 598 F.3d 340, 345 (7th Cir. 2010) (collecting

cases), and neither counsel nor we have found a basis to set aside that presumption here.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Jones’s

appeal.