# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 23, 2012

Decided May 23, 2012

Before

FRANK H. EASTERBROOK, Chief Judge

KENNETH F. RIPPLE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 11

‐ 3150

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

WILLIE BROWN,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 10 CR 595

‐ 1

Virginia M. Kendall,

Judge.

O R D E R

An informant told Chicago police officer Antonio Herrera that Willie Brown had

given the informant crack cocaine and heroin to sell during a meeting in Brown’s apartment

earlier that day. Herrera obtained a warrant from a state judge to search Brown and his

apartment. During the search, officers recovered heroin and several guns.

Brown was indicted on charges of possession of a firearm by a felon, 18 U.S.C.

§ 922(g)(1), possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1), and

possession of a firearm in furtherance of a drug

‐ trafficking crime, 18 U.S.C. § 924(c)(1)(A).

He moved to suppress the drugs and guns on the ground that the affidavit supporting the

search warrant does not establish the reliability of the informant or, consequently, probable NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 11

‐ 3150 Page 2

cause. The district court denied the motion without an evidentiary hearing. The court

concluded that the affidavit establishes probable cause and, at the very least, is sufficient for

the police to have relied upon the warrant in good faith. Brown then pleaded guilty to the

§ 922(g)(1) count, reserving the right to challenge the district court’s suppression ruling on

appeal. See F ED

. R. C RIM

. P. 11(a)(2). At sentencing, over Brown’s objection, the district court

determined that he is an armed career criminal and imposed the statutory minimum of 180

months’ imprisonment, see 18 U.S.C. § 924(e)(1), more than 2 years below the low end of his

guidelines range (210 to 262 months).

Brown filed a notice of appeal, but his newly appointed lawyer has concluded that

the appeal is frivolous and seeks permission to withdraw. See Anders v. California

, 386 U.S.

738 (1967). Brown has not accepted our invitation to comment on counsel’s facially adequate

submission. See C IR

. R. 51(b). We limit our review to the potential issues that counsel

discusses. See United States v. Schuh

, 289 F.3d 968, 973–74 (7th Cir. 2002). Brown has told his

attorney that he does not want his guilty plea set aside unless the district court’s ruling on

the suppression motion is overturned, so counsel properly forgoes discussing the adequacy

of the plea colloquy or the voluntariness of the plea. See United States v. Knox

, 287 F.3d 667,

670–72 (7th Cir. 2002).

Counsel first considers challenging the ruling on Brown’s suppression motion but

rightly concludes that the proposed claim would be frivolous. When a challenged search

warrant is obtained on an informant’s tip, courts evaluate several factors in deciding if the

information is sufficiently reliable to support the issuing judge’s determination of probable

cause. Those factors include the extent to which the informant’s tip was based on firsthand

observation, the level of detail provided, the length of time between the events described by

the informant and the officer’s application for a warrant, and the extent to which police

corroborated the informant’s statements. United States v. Searcy

, 664 F.3d 1119, 1122

(7th Cir. 2011); United States v. Garcia

, 528 F.3d 481, 486 (7th Cir. 2008). Also relevant is

whether the informant accompanied the applicant before the judge who approved the

warrant. See United States v. Sims

, 551 F.3d 640, 644 (7th Cir. 2008); United States v. Koerth

,

312 F.3d 862, 866 (7th Cir. 2002). Here the informant recounted firsthand dealings with

Brown at his apartment during the six to seven months he had worked for Brown and

included details about the amount and street value of the drugs. As for timing, Officer

Herrera sought the warrant the morning after the informant’s most

‐ recent drug deal at

Brown’s apartment. Finally, the informant appeared before the judge when Herrera sought

the warrant, providing the judge with an opportunity to assess the informant’s credibility.

See Sims

, 551 F.3d at 644; United States v. Jones

, 208 F.3d 603, 609 (7th Cir. 2000). Particularly

in light of the great deference we owe to the decision of the issuing judge, Illinois v. Gates

,

462 U.S. 213, 236 (1983); United States v. Billian

, 600 F.3d 791, 792 (7th Cir. 2010), we would

deem frivolous an argument contending that Herrera’s affidavit does not establish probableNo. 11

‐ 3150 Page 3

cause to believe that illegal drugs would be found in Brown’s apartment, see United States v.

McIntire

, 516 F.3d 576, 579 (7th Cir. 2006).

Moreover, as counsel acknowledges, an appellate claim that the district court abused

its discretion in not conducting an evidentiary hearing on the suppression motion would be

similarly frivolous. An evidentiary hearing is necessary only when there is a disputed issue

of material fact, see United States v. Curlin

, 638 F.3d 562, 564 (7th Cir. 2011); United States v.

Walker

, 237 F.3d 845, 850 (7th Cir. 2001), and here the only disagreement was whether the

application for the search warrant supports the determination of probable cause or, at the

very least, is not so meager that a reasonable police officer would recognize the warrant to

be invalid, see Walker

, 237 F.3d at 850–51; United States v. Abboud

, 438 F.3d 554, 577

(6th Cir. 2006). These were purely legal determinations that did not require factual

development through an evidentiary hearing.

Counsel next evaluates whether Brown might dispute that his criminal history

makes him an armed career criminal. A defendant who violates § 922(g)(1) after three or

more convictions for a “violent felony” or “serious drug offense” is an armed career

criminal, 18 U.S.C. § 924(e)(1). At sentencing Brown conceded that 2 of his past convictions

are for serious drug offenses because each carried a maximum potential prison term of 10

years or more. See id. § 924(e)(2)(A)(ii). He argued, however, that 4 other drug convictions

are not predicates because, for each, the possible prison sentence met the 10

‐ year threshold

only after applying a recidivism enhancement. But Brown’s argument is foreclosed by

United States v. Rodriquez

, 553 U.S. 377 (2008), which holds that recidivism enhancements

count in assessing whether the maximum prison sentence for a conviction met the 10

‐ year

threshold for a serious drug offense. Id. at 382–84; see United States v. Henton

, 374 F.3d 467,

470 (7th Cir. 2004). Thus, we agree with counsel that the proposed argument would be

frivolous.

Counsel last evaluates, but rightly deems frivolous, a challenge to the reasonableness

of Brown’s 180

‐ month prison sentence. Brown’s sentence is the lowest the judge could have

imposed and therefore cannot be deemed unreasonably high. See United States v. Cannon

,

429 F.3d 1158, 1160–61 (7th Cir. 2005); United States v. Lee

, 399 F.3d 864, 866 (7th Cir. 2005).

Accordingly, counsel’s motion to withdraw is G RANTED

, and the appeal is D ISMISSED

.