In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3756

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAWRENCE L. OLSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 03-CR-051-S-1—John C. Shabaz, Judge.

____________

ARGUED APRIL 7, 2004—DECIDED MAY 16, 2005

____________

Before FLAUM, Chief Judge, and WOOD and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Lawrence Olson, convicted of

being a felon in possession of a firearm, and for possession

of marijuana with intent to distribute, makes various challenges to his conviction and sentence. However, we find that

the search warrant for Olson’s premises was supported by

sufficient probable cause, and uphold the constitutionality

of 18 U.S.C. § 922(g)(1) based on our prior decision in

United States v. Lemons, 302 F.3d 769 (7th Cir. 2002). But

because the district court failed to make factual findings as

to whether Olson, in a prior conviction for possession of a
2 No. 03-3756

controlled substance, possessed those drugs for his own

personal use or with an intent to distribute, we find its relevant conduct determination insufficiently supported, and

vacate Olson’s sentence and remand his case for resentencing.

I. BACKGROUND

Inspector Bambi Tomas of the State Line Area Narcotics

Team (SLANT) swore out an affidavit on March 5, 2003,

seeking a warrant to search Olson’s home for drugs. To establish grounds for issuing the warrant, the affidavit stated

that a “concerned citizen” had informed Tomas in November

2002 that Olson sold cannabis out of his Brodhead, Wisconsin home and stored large quantities of the drug in his

outbuildings and junked vehicles on his property.

The affidavit further stated that Tomas had learned, on

the same day as the warrant application, that Joseph Olson

(defendant Olson’s nephew, hereinafter “Joseph”) had attempted to steal Olson’s marijuana supply. Joseph had been

arrested by the Rock County Sheriff’s Department for being

a party to armed robbery and aggravated battery. Subsequent to the arrest, Tomas interviewed Joseph, learning

that he had gone to Olson’s home to “rip off his stuff.”

Joseph then clarified that by “stuff” he meant marijuana.

He said that he intended to steal Olson’s keys by any means

necessary and to break into a safe where Olson kept large

quantities of the drug. Joseph told Tomas he had seen as

much as one pound of marijuana in Olson’s bedroom on

March 3, 2003, as well as several guns in the residence. He

also stated that Olson was a convicted felon.

The affidavit then stated that, upon review of “confidential

intelligence records” at the SLANT office, Tomas “found

several reports relating to possible drug trafficking involving Lawrence Olson.” Finally, the affidavit noted that Tomas

ran a criminal history check on Olson, finding several ar-
No. 03-3756 3

rests and convictions for possession with intent to deliver

THC, possession of THC and cocaine, and possession of

drug paraphernalia.

Based on these facts contained in Tomas’s affidavit, the

Rock County Circuit Court issued the requested warrant.

Pursuant to the warrant, SLANT agents searched Olson’s

residence and premises, finding numerous firearms and

approximately 1,283 grams of marijuana.

On April 24, 2003, a federal grand jury sitting in the

Western District of Wisconsin returned a three-count

indictment against Olson. In Count 1, Olson was charged

with being a felon in possession of five firearms in violation

of 18 U.S.C. § 922(g)(1). Count 2 charged him with possession of marijuana with intent to distribute in violation of 21

U.S.C. § 841(a)(1). Count 3 stated that Olson’s property was

subject to forfeiture as a result of Count 2 of the indictment.

Olson moved to dismiss the felon in possession of a firearm charge, contending that 18 U.S.C. § 922(g)(1) is unconstitutional, and to suppress evidence seized from his premises

pursuant to a defective search warrant. Magistrate Judge

Stephen L. Crocker filed a Report and Recommendation

recommending that both motions be denied. The district

court adopted the magistrate judge’s recommendations and

denied both motions. Olson then pled guilty to Counts 1 and

2 pursuant to a written plea agreement, in which he

reserved the right to appeal the district court’s denial of his

motions to dismiss and suppress evidence.

Olson was sentenced to 87 months in prison on October 8,

2003. In calculating Olson’s criminal history score for

purposes of determining sentence under the United States

Sentencing Guidelines, the district court assessed one criminal history point for Olson’s conviction in a Rock County

Wisconsin Circuit Court Case (No. 95 CF 304B) for possession of marijuana. On appeal, Olson challenges the denial
4 No. 03-3756

of his motions to dismiss and suppress evidence, as well as

the calculation of his criminal history category for purposes

of sentencing.

II. ANALYSIS

A. Probable Cause Supported Search Warrant

Olson first argues that Tomas’s affidavit in support of the

search warrant failed to establish probable cause, therefore

requiring the suppression of all evidence obtained through

the execution of that warrant. “Whether an affidavit established probable cause is reviewed de novo.” United States v.

Peck, 317 F.3d 754, 756 (7th Cir. 2003).

Before issuing a search warrant, an issuing officer must

determine whether probable cause exists for doing so.

United States v. Walker, 237 F.3d 845, 850 (7th Cir. 2001).

“In determining whether probable cause exists, an official

must consider the totality of circumstances.” United States

v. Brack, 188 F.3d 748, 755 (7th Cir. 1999) (citing Illinois v.

Gates, 462 U.S. 213, 238 (1983)). Probable cause sufficient to

support a warrant exists where “the known facts and

circumstances are sufficient to warrant a man of reasonable

prudence in the belief that contraband or evidence of a

crime will be found.” Ornelas v. United States, 517 U.S. 690,

696 (1996). When those “known facts and circumstances” used

to support a finding of probable cause are derived from a

confidential informant’s (CI) tip, the legitimacy of a probable cause determination turns on that “CI’s reliability,

veracity and basis of knowledge.” United States v. Johnson,

289 F.3d 1034, 1038 (7th Cir. 2002). To assess that credibility, this court asks whether the informant: (1) had firsthand

knowledge; (2) provided sufficient details; (3) relayed

information which was subsequently corroborated; and (4)

testified at a probable cause hearing. Id. at 1038-39.
No. 03-3756 5

The government argues that the information provided by

Joseph and memorialized in the Tomas affidavit provided

a reliable basis for a finding of probable cause and issuance

of the warrant. Indeed, the information that Joseph relayed

to Tomas was a firsthand account of what he had seen in

Olson’s residence. Furthermore, the information was of

sufficient detail, describing large quantities of marijuana

stored in Olson’s safe and the presence of a pound of marijuana in Olson’s bedroom, as well as several guns in the

residence as a whole, that he had observed only two days

earlier. Cf. United States v. Peck, 317 F.3d 754, 756-57 (7th

Cir. 2003) (finding that a search warrant did not establish

probable cause where a CI, though asserting that she was

the defendant’s girlfriend, failed to divulge details such as

where in the home the drugs would be located, the total

amount of drugs in the home, the frequency with which the

defendant sold drugs, or defendant’s physical attributes).

With respect to whether the information provided was corroborated, the government cites Tomas’s review of confidential intelligence records at the SLANT office that yielded

several reports linking Olson to drug trafficking, and her

criminal history check on Olson, which was prompted by

Joseph’s revelation that Olson was a convicted felon and revealed that Olson had been convicted of numerous felonies

involving controlled substance violations. The government

also notes that Tomas had already personally received

information in November 2002 indicating that Olson was

storing large quantities of marijuana in outbuildings and

junked vehicles located on his property.

This, however, cannot end our analysis of Joseph’s credibility. Joseph was not just an informant, but a newlyarrested informant, and as such merits a greater dose of

skepticism when assessing his credibility. See Williamson

v. United States, 512 U.S. 594, 607-08 (1994) (“A person

arrested in incriminating circumstances has a strong incentive to shift blame or downplay his own role in comparison
6 No. 03-3756

with that of others, in hopes of receiving a shorter sentence

and leniency in exchange for cooperation.”). Toward that

end, Olson cites United States v. Koerth, 312 F.3d 862 (7th

Cir. 2002).

In Koerth, several factors conspired to render the factual

offerings of a newly arrested informant insufficient to establish probable cause. There, the self-incriminating nature of

the arrestee’s information could best be described as “weak”;

the arrestee, despite his undisputed availability, was not

presented to the warrant-issuing judge for a demeanor review; and police took no steps to corroborate the arrestee’s

story. Koerth, 312 F.3d at 867-68. Olson rightly notes that

there are similarities between his case and that of Koerth.

In both cases, a search warrant was procured based upon

assertions by a newly arrested informant who had never

been presented to the warrant-issuing officer. There are,

however, factual differences as well—differences sufficient

to rescue Olson’s warrant from the fate suffered by the

Koerth warrant.

Joseph’s admission that he intended to steal drugs from

the defendant constitutes a statement made against his

penal interest, and as such carries with it a presumption of

reliability. See, e.g., United States v. Harris, 403 U.S. 573,

583 (1971) (“Admissions of crime, like admissions against

proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable

cause to search.”); United States v. Barnes, 909 F.2d 1059,

1069 (7th Cir. 1990) (finding support for informant’s

credibility in the fact that proffered information was made

against informant’s penal interest); Fed. R. Evid. 804(b)(3).

Joseph’s statements went beyond the non-narcotic impetus

for his arrest—the armed robbery and aggravated assault

of the defendant (his uncle)—inculpating him further by

confessing a motive to steal drugs. This admission exposed

Joseph as more culpable than originally suspected—no

longer just a violent robber, but also a member, in some
No. 03-3756 7

capacity, of the drug trade. Such statements compounding

his problems were self-inculpatory, not exculpatory.

Olson nonetheless attempts to rebut this presumption of

reliability by insisting that Joseph’s admission was nothing

more than a naked attempt to mitigate his culpability

through currying the favor of the police. A motive to curry

favor, however, does not necessarily render an informant

unreliable. Indeed, even informants “attempt[ing] to strike

a bargain with the police [have] a strong incentive to provide accurate and specific information rather than false

information about [a defendant’s] illegal activity.” Koerth,

312 F.3d at 870.

Also distinguishing the case at bar from Koerth is the

amount of corroboration to the informant’s account—here

there is some, while in Koerth there was none. In addition

to the information gleaned from Joseph, Tomas’s affidavit

disclosed several items tending to corroborate that account.

First, the affidavit notes that a “concerned citizen” had reported that Olson sold marijuana and stored it in outbuildings and junked cars on his premises. The corroborative

weight of this assertion is, however, compromised by the

affidavit’s failure to indicate how Tomas obtained this information, whether she knew the identity of the concerned

citizen, or even the basis of that citizen’s knowledge. Similarly,

though confidential SLANT reports, serving as the second

corroborative tidbit, purported to link Olson to drug trafficking, the affidavit made no mention of what the reports said,

the sources from which they were compiled, or the recency

of the events memorialized therein. On both accounts, such

details could have, and should have, been explained. Because

they were not, the corroborative weight of each is slight.

Likewise, little weight can be given to the final corroborative piece—the check on Olson’s criminal history that

yielded several old drug convictions and one recent drug

arrest. Alone, a record check cannot serve to corroborate an
8 No. 03-3756

informant’s account. United States v. Peck, 317 F.3d 754, 757

(7th Cir. 2003). Nonetheless, and also like the other items

proffered by the affidavit, it does retain some corroborative

value. When assessed on an individual basis, each bit here

may not provide much, but any one would still be greater

than that proffered in support of the Koerth warrant (none).

And while the weight of each item when assessed separately may be slight, together they suffice to corroborate

Joseph’s story; and, when viewed under the “totality-of-thecircumstances” standard, Illinois v. Gates, 462 U.S. 213, 238

(1983), altogether provide enough to establish probable

cause. See also United States v. Quintanilla, 218 F.3d 674,

677 (7th Cir. 2000) (holding that doubtful cases should be

resolved in favor of upholding the warrant).

In any event, the warrant would be saved by the good

faith exception. “An officer’s decision to obtain a warrant is

prima facie evidence that he or she was acting in good

faith.” Koerth, 312 F.3d at 868. A defendant may rebut this

prima facie case by presenting evidence establishing either

that: (1) the warrant issuing officer “wholly abandoned his

judicial role” and failed to “perform his ‘neutral and detached’ function,” serving “merely as a rubber stamp for the

police”; or (2) the affidavit submitted in support of the

warrant was “so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable.”

United States v. Leon, 468 U.S. 897, 914, 923 (1984). Olson

does not suggest that the issuing officer abandoned his

judicial role. Rather, he argues that the affidavit was

patently lacking in indicia of probable cause. As we have

already found that the warrant was sustained by sufficient

probable cause, our response to Olson’s argument here

should be clear. But even assuming probable cause was

lacking, sufficient indicia of suspicion were present in the

affidavit to invoke the good faith exception—namely, what

Tomas perceived to be Joseph’s statement against penal

interest placing marijuana in Olson’s home, the “concerned
No. 03-3756 9

citizen’s” tip, confidential SLANT reports linking Olson to

drug trafficking, and the results of a criminal history check

on Olson. Equipped with these assertions, the affidavit in

support of the warrant to search Olson’s house was not so

lacking in indicia of probable cause as to render reliance

upon it unreasonable, and there is no basis to suppress the

evidence seized from Olson’s premises.

B. 18 U.S.C. § 922(g)(1) Is Constitutional

Next, Olson contends that 18 U.S.C. § 922(g)(1), the statute prohibiting the possession of firearms by felons, is unconstitutional. Section 922(g) makes it “unlawful for any

person—(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one

year . . . to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce.” We have held that the statute’s requirement that

the firearm be “shipped or transported in interstate or

foreign commerce” constitutes a jurisdictional element that

justifies Congress’s passage of the provision pursuant to its

powers under the Commerce Clause (U.S. CONST. art. I, § 8,

cl. 3). See United States v. Lemons, 302 F.3d 769, 772 (7th

Cir. 2002).

However, Olson argues that the mere fact that a firearm

once traveled in interstate commerce before coming into the

possession of a felon does not present a sufficient nexus to

interstate commerce to allow Congress to exercise its

Commerce Clause powers and make that possession unlawful. This court squarely rejected this argument in Lemons,

302 F.3d at 772-73, and we find no “compelling reason” to

overturn our precedent here, see Goshtasby v. Bd. of Trustees

of the Univ. of Ill., 141 F.3d 761, 766 (7th Cir. 1998).
10 No. 03-3756

C. Increase of Criminal History Category Based on

Prior Conviction

Under the United States Sentencing Guidelines, a defendant’s criminal history score may not include any relevant

conduct that is part of the instant offense. U.S.S.G.

§ 4A1.2(2) & Application Note 1. “To count as relevant

conduct under the federal sentencing guidelines, a drug

offense . . . must be part of the same course of conduct, or

common scheme or plan, as the offense of conviction.”

United States v. Wyss, 147 F.3d 631, 632 (7th Cir. 1998)

(citing U.S.S.G. § 1B1.3(a)(2)); U.S.S.G. § 1B1.3 Application

Note 9. In essence, if the prior conviction stemmed from

relevant conduct, then the defendant’s criminal history score

cannot be increased based on that prior conviction; if that

conviction was not based on relevant conduct, then the

criminal history score may be so increased. See U.S.S.G.

§§ 4A1.1 & 4A1.2(2).

In the instant case, Olson pled guilty to possession of

marijuana with intent to distribute. In pleading guilty,

Olson conceded that he had been selling marijuana for the

last 10 years—a charge contained in the government’s

presentence report. Therefore, for the purpose of grouping

to determine the defendant’s criminal history category, all

prior convictions for the distribution/sale of marijuana

which occurred in the last 10 years would not be counted

toward his criminal history score. However, this court has

clearly held that “[p]ossession of illegal drugs for personal

use cannot be grouped with other offenses.” Wyss, 147 F.3d

at 632. Cognizant of these limitations, the district court at

sentencing held that Olson’s prior misdemeanor conviction

in 1995 for possession of a controlled substance in

Rock County Case No. 95 CF 304B could be used to increase

Olson’s criminal history score by one point. Olson asserts

that this was error, arguing that the prior conviction constitutes relevant conduct to the instant offense.
No. 03-3756 11

The prior conviction at issue was handed down in state

court in 1995. Though Olson was originally charged on

February 27, 1995 with possession of marijuana with intent

to deliver, the charge was reduced to mere possession of

marijuana on April 11, 1995, and it was on that charge that

Olson was convicted. The record of this conviction reveals

that Olson was arrested when police found a bag of marijuana wedged between the seat cushions of a car’s back seat,

immediately next to where Olson had been sitting alone.

The two other occupants of the car stated that the marijuana belonged to Olson, that they had seen it in his

possession, and that they had smoked some of it with him.

The total weight of the bag was just over two ounces, but

within it the marijuana was divided into six smaller baggies

of varying smaller weights.

Though we know that the district court held that this

prior conviction did not constitute relevant conduct, we do

not know exactly why. The sentencing transcript, which the

government concedes is unclear on this point, suggests that

the district court may have reached this conclusion by

focusing simply on the name of the prior offense—possession of a controlled substance. Indeed, a focus confined to

the conviction’s moniker, which alone suggests possession

for personal use devoid of an intent to distribute, could

explain why the lower court concluded that that prior conviction did not constitute relevant conduct to the instant

offense (possession with intent to distribute). This, however,

cannot be the basis of the district court’s determination, for,

as the government also concedes, the sentencing guidelines

direct courts to look to the underlying conduct of the offense,

and not the name of the offense itself, when assessing

relevant conduct. See, e.g., United States v. Garecht, 183

F.3d 671, 674 (7th Cir. 1999) (looking to underlying conduct

of offense, rather than formal label of offense, in finding

that a defendant’s prior conviction for possession of cocaine

with intent to distribute was relevant conduct to the instant

offense of conspiracy to distribute marijuana, and therefore
12 No. 03-3756

not an amenable basis for enhancing defendant’s criminal

history category); Wyss, 147 F.3d at 632 (finding that

cocaine purchased for resale is relevant conduct to conviction

for possession of marijuana with intent to distribute). Thus,

if the district court’s conclusion did rely solely on the formal

label of the conviction, remand would be necessary on that

basis alone.

It is also possible—though we cannot know for sure due

to the ambiguous nature of the sentencing transcript—that

the district court did look to the underlying conduct giving

rise to Olson’s 1995 conviction when assessing his relevant

conduct. When looking to the underlying conduct, however,

it is not readily apparent how that conduct should be categorized. On the one hand, Olson possessed a small amount

of marijuana (two ounces), suggesting that Olson held the

drugs for his own personal use. If so, then the underlying

conduct would be considered mere possession of a controlled

substance, and would therefore not constitute relevant

conduct to the instant offense of possession with intent to

distribute. On the other hand, the subdivision of those two

ounces of marijuana in six smaller baggies might suggest

that Olson did intend to distribute the drugs, in which case

the prior conviction would have been for relevant conduct,

and therefore an improper basis for increasing Olson’s

criminal history score. The very uncertainty inherent in this

underlying conduct accentuates the need for the district court

to make specific factual findings regarding the underlying

conduct giving rise to the prior conviction, thereby clearly

providing the basis for its ultimate resolution of the relevant conduct question. Because no such factual findings

were made here, we vacate Olson’s sentence and remand

his case to the district court for further factual findings to

flesh out whether he possessed the drugs at the center of

his conviction in case number 95 CF 304B merely for his

personal use, or with an intent to distribute. As both parties

had the opportunity to present evidence on this issue at the

sentencing hearing, resentencing shall be based on the
No. 03-3756 13

existing record. See Wyss, 147 F.3d at 633 (“The government

[is] entitled to only one opportunity to present evidence on

the issue [of relevant conduct].”).

Having remanded this matter for resentencing based on

other grounds, we need not address the merits of Olson’s

challenge under United States v. Booker, 125 S. Ct. 738

(2005). We note, however, that when the district court imposes its new sentence upon remand, it must do so in accord

with Booker, as Booker decidedly governs all sentences imposed after its date of decision. Indeed, after considering the

cadre of factors and policy concerns memorialized by Justice

Breyer’s remedial opinion (Booker, 125 S. Ct. at 764-66) and

18 U.S.C. § 3553(a), the district court may find that the

sentence that it found appropriate yesterday to be wholly

unwarranted today.

III. CONCLUSION

For the reasons stated above, we VACATE Olson’s sentence

and REMAND his case to the district court for resentencing

consistent with this opinion and the Supreme Court’s recent

decision in United States v. Booker, 125 S. Ct. 738 (2005).

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-16-05