In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-3132 & 05-4469

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM OTERO and JAMES WOODS,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 04 CR 281—Rudolph T. Randa, Chief Judge.

____________

ARGUED JANUARY 11, 2007—DECIDED JULY 19, 2007

____________

Before BAUER, FLAUM, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. William Otero and James Woods

were convicted of conspiracy to possess with intent to

distribute at least 500 grams of cocaine (count one), in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846

and 18 U.S.C. § 2. Additionally, Woods was convicted of

knowingly using a communication facility in committing

the conspiracy (count two), in violation of 21 U.S.C.

§ 843(b), and Otero was convicted of maintaining a place

and intentionally making the place available for the

purpose of unlawfully distributing a controlled substance

(count three), in violation of 21 U.S.C. § 856(a)(1). Both

Otero and Woods were sentenced to 300 months’ imprisonment.
2 Nos. 05-3132 & 05-4469

On appeal, Otero challenges the denial of his motion to

suppress evidence seized from his home pursuant to a

federal search warrant, arguing that the affidavit 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.

I. Background

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
Nos. 05-3132 & 05-4469 3

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.

After learning this information, Carlton filed an affidavit

in support of an application seeking the issuance of a

warrant to search Otero’s apartment in Kenosha, Wisconsin. Carlton’s affidavit stated that Woods had delivered

cocaine to Carlton on November 16 and 19, 2004. The

affidavit included Woods’ pre-arrest statements that he

had refused to travel to Kenosha and Woods’ post-arrest

statement that he had received the drugs on November 19

from Otero at Otero’s apartment in Kenosha, Wisconsin.

The affidavit also included Woods’ statements concerning
4 Nos. 05-3132 & 05-4469

Otero’s residence. Finally, Carlton’s affidavit stated that

Cabrera confirmed Woods’ claim that both Cabrera and

Otero were present during Woods’ November 16 transaction with Carlton.

On November 19, 2004, based on Carlton’s affidavit, a

United States magistrate judge issued a search warrant

for Otero’s apartment and one-car garage. The agents

executed the warrant and found a bottle of inositol, plastic

baggies, “corner cuts” from plastic baggies, a glass pipe

wrapped in foil, and other paraphernalia used to smoke

crack cocaine. The agents also found a number of items

in Otero’s bedroom and garage that had cocaine residue

on them, including a scale, measuring cup, table, razor

blade, spoon, and plastic film container.

Before his trial, Otero moved to suppress the evidence

obtained during the search, arguing that there was no

probable cause to issue the warrant. Additionally, Otero

argued that Woods’ pre-arrest statements (that he would

not travel to Kenosha to deliver the cocaine because of his

earlier run-in with the police) and post-arrest statement

(that he had obtained the cocaine that morning from Otero

at his apartment in Kenosha) were inherently unreliable

and rendered Carlton’s affidavit internally inconsistent.

The magistrate judge disagreed and found that the

search warrant was supported by probable cause. The

district court adopted the magistrate judge’s 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
Nos. 05-3132 & 05-4469 5

300 months’ imprisonment as to count one and 48 months

as to count two, with the terms running concurrently.

Both Otero and Woods filed these timely appeals, which

we have consolidated.

II. Discussion

A. Probable Cause to Search Otero’s Apartment

On appeal, Otero renews his argument that the search

warrant was not supported by probable cause. We review

de novo the district court’s determination that the 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:

A magistrate’s determination of probable cause is to be

given considerable weight and should be over-ruled

only when the supporting affidavit, read as a whole

in a realistic and common sense manner, does not

allege specific facts and circumstances from which the

magistrate could reasonably conclude that the items

sought to be seized are associated with the crime and

located in the place indicated.

United States v. Wiley, 475 F.3d 908, 914-15 (7th Cir.

2007) (citing United States v. Newsom, 402 F.3d 780, 782

(7th Cir. 2005)). Where probable cause is based on information supplied by an informant, courts consider the following factors: “(1) the extent to which the police have

corroborated the informant’s statements; (2) the degree to

which the informant has acquired knowledge of the

events through firsthand observation; (3) the amount of

detail provided; and (4) the interval between the date of

the events and the police officer’s application for the

search warrant.” United States v. Koerth, 312 F.3d 862,

866 (7th Cir. 2002).
6 Nos. 05-3132 & 05-4469

1 Over a month after Woods’ arrest and the issuance of the

search warrant, Woods confessed that it was Cabrera (and not

Otero) who had provided him with the cocaine that he had sold

on November 19. However, this inconsistency is not relevant to

the probable cause determination. Because Carlton’s affidavit

was the only evidence presented to the magistrate judge on

November 19, “the warrant must stand or fall solely on the

contents of the affidavit.” See Koerth, 312 F.3d at 866 (quoting

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

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.1

 Second, Woods provided

sufficient detail concerning Otero’s apartment: he identified the address of Otero’s apartment, provided specific

locations in the apartment where Otero hid his cocaine,

and indicated that he had observed a scale and additional

ounces of cocaine in Otero’s apartment while picking up

the cocaine. Third, the search warrant was requested

shortly after Woods told Carlton that Otero had supplied

him with the cocaine. Finally, Cabrera’s information—that

Otero was present during and involved in the cocaine

transaction between Woods and Carlton on November 16,

2004—corroborates Woods’ statements that Otero was

involved in the conspiracy. In light of the totality of the

circumstances, Carlton’s affidavit sets forth sufficient

evidence to induce a reasonably prudent person to believe

that a search of Otero’s apartment would uncover evidence of a crime. See Peck, 317 F.3d at 755-56.

Moreover, even if probable cause was lacking, Otero has

failed to meet his burden of demonstrating that the goodfaith exception of United States v. Leon, 468 U.S. 897, 104
Nos. 05-3132 & 05-4469 7

S. Ct. 3405, 82 L. Ed. 2d 677 (1984), should not apply here.

In Leon, the Supreme Court held that evidence seized

pursuant to a subsequently invalidated search warrant

need not be suppressed if the officers relied in good faith

on the magistrate judge’s issuance of the warrant. Leon,

468 U.S. at 924. An officer’s decision to obtain a warrant

is prima facie evidence that he or she was acting in good

faith. United States v. Mykytiuk, 402 F.3d 773, 777 (7th

Cir. 2005). A defendant can rebut the presumption of good

faith only by showing that the judge issuing the warrant

abandoned his/her detached and neutral role, the officers

were dishonest or reckless in preparing the affidavit, or

the warrant was so lacking in probable cause as to render

the officer’s belief in its existence entirely unreasonable.

Peck, 317 F.3d at 757; Leon, 468 U.S. at 923.

Otero does not suggest that the magistrate judge simply

rubber-stamped the application in issuing the search

warrant. Instead, he argues that Carlton could not have

harbored an objectively reasonable belief that there was

probable cause to search Otero’s residence. In support of

this argument, Otero contends that Carlton acted recklessly in preparing an affidavit containing inconsistent

statements. We disagree with Otero’s contention that

Woods’ pre-arrest and post-arrest statements are contradictory.

Although Woods told Carlton that he would not travel to

Wisconsin to deliver the cocaine due to his November 16

run-in with the Kenosha police, he did not tell Carlton that

he would never travel to Kenosha for any reason. Woods’

pre-arrest statements did not preclude the possibility of

him traveling to Kenosha the morning of November 19 to

pick up cocaine from Otero, and, after his arrest, that is

precisely what Woods told Carlton he had done. Carlton

had no reason to believe that Woods was being untruthful

when he identified Otero as his supplier and there is no

evidence in the record to suggest that Carlton knew that
8 Nos. 05-3132 & 05-4469

Woods’ statement was false when the warrant was issued.

The warrant was obtained and relied upon in good faith.

B. Otero’s Sentence 

Otero also asserts that the district court erred in 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.

C. Venue Instruction at Woods’ Trial

Woods begins his appeal by arguing that it was error for

the district court to give a jury instruction that only

required the government to prove by a preponderance of

the evidence that venue existed in the Eastern District of

Wisconsin. He argues that “[t]he Seventh Circuit employs

a standard of beyond a reasonable doubt in proving venue.”

In United States v. Canino, 949 F.2d 928 (7th Cir. 1991),

we rejected a similar argument and reiterated that “the

law of this circuit is that venue is shown by

a preponderance of the evidence, which may include

inferences drawn from circumstantial evidence.” Canino,

949 F.2d at 942 (citations omitted). The district court’s

venue instruction was correct.
Nos. 05-3132 & 05-4469 9

2 In the letter, Smoker claimed that Woods had asked him how

sentencing worked and where people sit during sentencing. The

letter explained that Woods told Smoker that he had no intention of serving 25 years in prison and therefore intended to

get the death penalty by killing his prosecutor. Smoker claimed

that Woods told him that he planned to “grab his attorney’s pen

and . . . stick the pen through [the prosecutor’s] nose into her

brain” during sentencing. Additionally, Smoker claimed that

Woods told him that “if he couldn’t get to the prosecutor during

his sentencing, he would use his outside contacts to get to [the

prosecutor’s] family.”

D. Woods’ Sentence

After the conviction, the probation officer prepared

Woods’ pre-sentence report (“PSR”). Because the PSR

characterized Woods as a career offender, his base offense

level increased from 24 to 34 and he received a criminal

history category of VI. This resulted in a sentencing

range of 262 to 327 months of imprisonment. Woods filed

two objections to the PSR, arguing that he was entitled

to an adjustment for acceptance of responsibility and that

he was not a career offender.

Before Woods’ sentencing hearing, Sean Smoker, a

federal inmate and con artist serving a sentence for

fraudulent use of a social security number, sent a letter to

his own sentencing judge claiming that Woods had threatened the life of a federal prosecutor.2

 During an investigation of the death threat, another inmate told an FBI

investigator that he had overheard Woods say that he

was planning to stab his prosecutor with a pen.

At sentencing, the district court rejected Woods’ 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
10 Nos. 05-3132 & 05-4469

concluded that the seriousness of the offense and the

history and characteristics of Woods warranted a term of

300 months’ imprisonment. Woods now argues that the

district court erred in denying him acceptance of 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.

1. Acceptance of Responsibility

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.
Nos. 05-3132 & 05-4469 11

2. Career Offender

Woods next argues that the district court erred in

determining that he qualified as a career offender under

U.S.S.G. § 4B1.1. Whether the district court erred in

sentencing Woods as a career offender is a question of law

that this court reviews de novo. United States v. Kindle,

453 F.3d 438, 440 (7th Cir. 2006). Under the Guidelines, a

defendant qualifies as a career offender if three criteria

are met: (1) the defendant is over 18 at the time he

committed the instant offense; (2) the instant offense is a

felony that constitutes either a crime of violence or a

controlled substance offense; and (3) the defendant has at

least two prior felony convictions for either crimes of

violence or controlled substance offenses. See U.S.S.G.

§ 4B1.1.

Here, the first two elements are not in dispute: Woods

was over 18 years old when he committed the instant

offense and the instant offense qualifies as a controlled

substance offense. With respect to the third element,

Woods’ PSR indicates that he has had several prior

convictions, including strong-armed battery in November

of 1990, battery to a jailer with a weapon in April of 1993,

and battery to a jailer in September of 1993. Woods

concedes that his April 1998 battery qualifies as a violent

felony, and the district court found that his strong-armed

robbery conviction also qualifies as such.

Woods argues, however, that the robbery does not

constitute a “crime of violence,” and that because he was

a minor at the time of this offense, the robbery does not

meet the definition of “prior felony conviction.” We disagree.

The Guidelines define a “crime of violence” as:

any offense under federal or state law, punishable by

imprisonment for a term exceeding one year that (1)

has as an element the use, attempted use, or threatened
12 Nos. 05-3132 & 05-4469

3 Under Wisconsin Statute § 943.32, “(1) Whoever, with intent

to steal, takes property from the person or presence of the owner

by . . . the following means is guilty of a Class E felony: (a) By

using force against the person of the owner with intent to

overcome his or her physical resistance or physical power of

resistence to taking or carrying away of the property . . . .” 

4 For the first time on appeal, Woods argues that he is entitled

to a reduction in his offense level for being a minor participant

(continued...)

use of physical force against the person of another; or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added). In 1990, Woods was

convicted of violating Wis. Stat. § 943.32(1)(a), which has

as a necessary element the use of force against a victim.3

Additionally, robbery is one of the offenses specifically

enumerated as being a “crime of violence” for purposes of

U.S.S.G. § 4B1.2(a). See Application Note 1 (“ ‘Crime of

violence’ includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses, robbery, arson,

extortion, extortionate extension of credit, and burglary

of a dwelling.”). Furthermore, while it is true that Woods

was 17 when he committed the robbery, the offense may be

counted for career offender purposes because Woods’

robbery conviction was classified as an adult conviction in

Wisconsin. See U.S.S.G. § 4B1.2(a), Application Note 1 (“A

conviction for an offense committed prior to age eighteen

is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the

defendant was convicted.”) Given that a robbery is enumerated as a “crime of violence” under the Guidelines

and Woods’ conviction for strong-armed robbery was

classified as an adult conviction, the district court did not

err in finding that Wood qualified as a career offender.4
Nos. 05-3132 & 05-4469 13

4 (...continued)

in the criminal conspiracy. Because Woods was sentenced as a

career offender, minimal and minor role reductions under

§ 3B1.2 do not apply. See United States v. Ward, 144 F.3d 1024,

1036-37 (7th Cir. 1998).

3. Reasonableness of Sentence

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, No. 06-5754, 2007 WL 1772146 (June 21, 2007),

and we review the district court’s decision deferentially.

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Although a

sentence within the Guidelines range will rarely be

unreasonable, a defendant can rebut the presumption by

showing that the sentence is unreasonable in light of the

factors listed in 18 U.S.C. § 3553(a). Id.

Here, the district court judge correctly calculated Woods’

advisory Guidelines range. The district court then 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
14 Nos. 05-3132 & 05-4469

5 Woods argues that the district court should not have considered the hearsay evidence from Smoker in assessing his history

and characteristics. We disagree. At sentencing, a district

court may consider evidence that is not otherwise admissible,

including hearsay, so long as it possesses “sufficient indicia of

reliability to support its probable accuracy.” See United States v.

Johnson, 227 F.3d 807, 813 (7th Cir. 2000); U.S.S.G. § 6A1.3(a).

Here, the hearsay evidence possessed sufficient indicia of

reliability because Smoker’s account was corroborated by another

inmate, who told investigators that he had overheard Woods’

death threat.

Smoker.5 Finally, the district court explained the need to

impose a sentence that reflects the seriousness of the

offense, promotes respect for the law, and provides uniform punishment. Because the district court gave meaningful consideration to the § 3553(a) factors, chose a

sentence within a properly calculated Guidelines range,

and explained its reasoning for sentencing Woods to 300

months’ imprisonment, we find that Woods’ sentence is

reasonable.

III. Conclusion

For the foregoing reasons, the decision of the district

court is affirmed in part and vacated and remanded in

part.

ROVNER, Circuit Judge, concurring. After receiving

information about Otero from the recently arrested Woods

and Cabrera, the officers did literally nothing to corrobo-
Nos. 05-3132 & 05-4469 15

rate any of that information. They did not check into

Otero’s criminal record. They did not check to see whether

someone named Otero lived at the address given by Woods.

Woods told the officers that Otero hid the drugs in his

bedroom or in the detached garage. The garage was not

detached, but the officers failed to verify even this detail,

which would have been readily discernable. There were

obvious credibility problems with Woods, an unproven

informant who had just been arrested and had previously

told the officers he refused to travel to Wisconsin, now

claiming that he procured the drugs from Otero in 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 probable

cause, I concur in the majority’s opinion in every other

respect.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-19-07