In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3385

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY D. BILLIAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 1:08-CR-31—William C. Lee, Judge.

ARGUED MARCH 3, 2010—DECIDED APRIL 5, 2010

Before EASTERBROOK, Chief Judge, and MANION and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. Larry Billian pleaded guilty

to two marijuana offenses and to possessing a firearm

in connection with those crimes. His conditional plea

reserved the right to appeal from the district court’s

order denying his motion to suppress evidence seized

from his home. The seizure was authorized by a warrant issued by a state judge. Billian contended that the

affidavit Detective Teresa Smith had tendered in sup-
2 No. 09-3385

port of the application failed to establish probable cause

and contained material falsehoods and omissions. The

district court held a hearing under Franks v. Delaware,

438 U.S. 154 (1978), and found that, although Smith’s

affidavit was inaccurate in some respects, Billian “failed

to demonstrate by a preponderance of the evidence

that the affidavit contained deliberate lies or a reckless

disregard for the truth.” The judge concluded that the

affidavit established probable cause—and that, even if it

did not, suppression is inappropriate because Smith

obtained a warrant in good faith. See United States v.

Leon, 468 U.S. 897 (1984).

“[A]fter-the-fact scrutiny by courts of the sufficiency

of an affidavit should not take the form of de novo review.

A magistrate’s determination of probable cause should

be paid great deference by reviewing courts”. Illinois v.

Gates, 462 U.S. 213, 236 (1983) (citation and internal quotation marks omitted). See also United States v. McIntire, 516

F.3d 576 (7th Cir. 2008). Billian wants us to decide the

probable-cause question without regard to the fact that

both a state judge and a federal district judge have

found probable cause. Appellate review, however, is

deferential. After a federal district judge holds an evidentiary hearing and finds probable cause for the search, it

would be almost inconceivable for a court of appeals

to find probable cause so obviously lacking that the

evidence must be suppressed. How could one say, as

Leon requires for suppression, that any reasonable police

officer must have known that the search warrant was

deficient, when after an evidentiary hearing and ample

time for reflection a federal judge found the warrant valid?
No. 09-3385 3

Billian’s answer to this question is that Smith pulled the

wool over the state judge’s eyes. A warrant that rests on

perjury, or false assertions made with reckless disregard

of the truth, is not covered by the Leon principle. 468 U.S.

at 923. One problem for this line of argument is that

the federal judge concluded that the affidavit is sufficient even with some statements removed; Franks

permits such a reconstruction. 438 U.S. at 171–72. Another

problem is that the district judge found that Smith

was neither deceitful nor reckless; errors in her affidavit

were negligent, but negligence does not justify use of

the exclusionary rule. See Herring v. United States, 129

S. Ct. 695 (2009). The district judge’s findings are not

clearly erroneous.

Smith told the state judge that she had received a tip

that Billian was selling marijuana from his home and

that he owned one black Cadillac and one white Cadillac.

Smith and other officers checked this by verifying that

Billian lived in the neighborhood where the tipster said

he did. Smith drove past the house repeatedly and,

though she did not see signs of drug sales, she did see

a black Cadillac Escalade parked in the driveway frequently and once saw a white Cadillac. Police twice

searched Billian’s trash; each time they found some

marijuana and packaging paraphernalia (such as the plastic

bags used for distribution). Smith’s affidavit related

that nine months earlier police had stopped Octavian

Reynolds for drug offenses while he was driving a

white Cadillac registered to Billian; in that car, officers

found a scale and “paperwork in the names of Reynolds

and Billian.” The affidavit added that during a stakeout
4 No. 09-3385

police had seen Billian leave “the residence of a known

high-volume narcotics trafficker.” It also observed that

Billian had “a prior arrest for cocaine possession and . . . a

‘handgun’ alert.” Finally, the affidavit included some

information favorable to Billian: police took two drugdetection dogs to a storage locker that Billian had rented,

and neither dog gave an “alert” to indicate that it had

smelled unlawful drugs.

According to Billian, the search warrant rests entirely

on an uncorroborated tip. “Entirely” because, in Billian’s

view, something is wrong with each aspect of the way

police set about checking the tipster’s report. Billian

complains that Smith violated departmental procedure

by taking five months after receiving the tip to write an

intra-office memo memorializing the report (she testified that this normally is done within a week, but that she

left the information on a sticky note until other events

reminded her of the need to follow up), and then

misled the state judge by dating the tip to the intra-office

memo rather than the tip’s actual receipt. Billian observes

that Smith saw a white Cadillac in Billian’s driveway

only once and did not write down its license plate

number, so she could not learn who owned it. She

often saw a black Cadillac, owned by Erin Billian, Larry

Billian’s wife. Larry contends that this means that something must be fishy about any reports concerning a

white Cadillac. He thinks that Smith withheld three

pieces of information from the state judge: that she

did not know who owned the white Cadillac seen in the

driveway, that she did not see any suspicious activity

when driving past his home, and that the tipster men-
No. 09-3385 5

tioned cocaine as well as marijuana, while the trash

searches turned up only marijuana. Finally, Billian

submits that the results of the trash searches should be

ignored, first because the amounts of marijuana were

small enough to represent personal use rather than distribution, and second because (according to Billian) the

trash cans were next to his garage, rather than at the

curb for pickup, when the police searched them, and

this invasion of the home’s curtilage was unreasonable.

The district judge thought this to be so much quibbling.

The fourth amendment does not require police to

follow their normal record-keeping procedures (or for

that matter any state statute, see Virginia v. Moore, 553

U.S. 164 (2008)); it does not matter who owned the

white Cadillac seen in the driveway, which may or may

not have been the one Reynolds was driving (the

material fact was that Reynolds was transporting drug

paraphernalia plus papers linking him to Billian); that

Billian threw away small quantities of marijuana shows

that he had marijuana in the house, not that the discarded personal-use amounts were all the marijuana he

possessed. Other tidbits, such as Billian’s drug-related

arrest, had not been questioned.

Billian’s only substantial objection, as the district judge

saw things, was the contention that officers violated the

fourth amendment when searching his trash. If they did,

then the contents of the trash cans could not count

toward probable cause. Erin Billian testified without

contradiction that the trash cans were next to the garage

at 7 AM on February 6, 2008, and therefore could not
6 No. 09-3385

have been at the curb at 3 AM that day when the affidavit

says they were searched the second time. (“Could not”

because, Erin testified, there is not enough room in the

driveway to get the cans around her car, so they can be

moved only when her car is out of the driveway.) The

district judge accepted this testimony but concluded

that the first trash search adequately corroborated the

tip. Billian contends on appeal that the first search was

defective for the same reason as the second, but on that

subject the testimony was conflicting. Although the

district judge did not make a direct finding that the

trash cans were at the curb when searched, he evidently

believed Smith rather than Erin Billian about their location. Given the other support for the warrant, and the

rule of Leon, there would be little point in a remand for

explicit findings to that effect.

On to sentencing. Billian received 70 months’ imprisonment for the drug offenses, to be followed by 60 months’

imprisonment for the firearms offense, 18 U.S.C. §924(c).

He contests the 70-month term because, he contends, the

district judge should have held him accountable for

only the 13 kilograms of marijuana found at his home.

The judge calculated Billian’s relevant conduct at 490

kilograms of marijuana after converting to a marijuana

equivalent the $40,000 in cash seized in the house (a

step that Billian no longer contests) and estimating

the extent of Billian’s drug-distribution business. Billian

contends that the record does not show, by a preponderance of the evidence, that he had any such business.

But the judge’s finding was based on Smith’s testimony

at an evidentiary hearing that Billian had confessed to
No. 09-3385 7

conducting a substantial marijuana-distribution operation. Billian testified at the hearing that he never said

any such thing to Smith. The judge believed Smith

rather than Billian. A challenge to the resolution of such

a swearing contest has no prospect of success on appeal.

See Anderson v. Bessemer City, 470 U.S. 564, 573–75 (1985).

No more need be said about the sentencing argument

that Billian’s counsel made, but a few words are in order

about a potential argument that counsel overlooked.

When converting the cash to a drug equivalent, the

presentence report treated 1 pound as 2.2 kilograms. That’s

backward: 1 kilogram is 2.2 pounds. This error, which

no one noticed, increased Billian’s relevant conduct

from 370 kilograms of marijuana to 490, and his offense

level from 23 to 25. The presentence report calculated a

Guidelines range of 70 to 87 months; the correct range

was 57 to 71 months. If the district court thought that

Billian deserved a sentence toward the bottom of the

range, then this error may have added a year to his imprisonment. But because 70 months is within the

correct range—or the judge may have selected the 70-

month term independent of the Guidelines—it may be

that the computation would not affect the sentence.

One important element of plain-error review is whether

the mistake had a substantial and prejudicial effect. See

United States v. Olano, 507 U.S. 725, 734–35 (1993). It is

hard to know whether this mistake was prejudicial,

because it affects (or might affect) a discretionary decision by the district judge. In other sentencing cases we

have concluded that the best way to find out is a limited
8 No. 09-3385

remand, which permits the district judge to tell us

whether discovery of the error would have led to a

lower sentence. See United States v. Taylor, 520 F.3d 746 (7th

Cir. 2008); United States v. Paladino, 401 F.3d 471, 481–85

(7th Cir. 2005). That is the best way to proceed here as well.

The judgment of conviction is affirmed. We order a

limited remand under the Taylor–Paladino procedure so

that the district judge can tell us whether the error in

converting pounds to kilograms affected the exercise of

discretion in sentencing. If the judge answers yes, we

will remand for a full resentencing; if the judge answers

no, we will affirm Billian’s sentence.

4-5-10