Hon. William C. Griesbach, District Judge for the Eastern 1

District of Wisconsin, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1758

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERASENCE STEVEN MITTEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 08-CR-40049—Michael M. Mihm, Judge.

ARGUED NOVEMBER 13, 2009—DECIDED JANUARY 20, 2010

Before KANNE and TINDER, Circuit Judges, and

GRIESBACH, District Judge.1

GRIESBACH, District Judge. On July 1, 2008, police

officers executed a search warrant on Apartment H14 of

the Maple Ridge apartment complex in Rock Island,

Illinois. The apartment was leased by the girlfriend of
2 No. 09-1758

defendant Terasence Mitten, and when the officers

knocked on the door and announced their purpose for

being there, Mitten attempted to barricade the door. The

officers gained entry and found approximately 20 grams

of crack cocaine and a loaded handgun.

Mitten was charged in a two-count indictment with

possession of five grams or more of crack cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and

841(b)(1)(B), and unlawful possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A). After unsuccessfully moving to

suppress the evidence seized from the apartment, Mitten

entered a conditional guilty plea to the drug charge,

reserving his right to appeal the district court’s order

denying his motion to suppress, and proceeded to trial

on the firearm charge. A jury found him guilty, and the

district court sentenced him to a total of fifteen years in

prison—120 months on the drug charge and 60 months,

consecutive, on the firearm charge. On appeal, Mitten

contends that (1) the district court erred in denying his

motion to suppress; (2) the evidence was insufficient

to support his conviction on the firearms charge; and

(3) the district court erred in imposing a consecutive

sentence pursuant to 18 U.S.C. § 924(c)(1)(A). We reject

all three challenges and affirm both his conviction

and the sentence.

I.

Mitten first claims that the district court erred in

denying his motion to suppress the evidence seized in
No. 09-1758 3

his girlfriend’s apartment. In its decision denying the

motion, the district court agreed with Mitten that the

affidavit submitted in support of the warrant was insufficient to establish probable cause and therefore held the

warrant invalid, a holding the government does not here

contest. The district court went on to conclude, however,

that the evidence seized by police was admissible under

the good faith exception to the exclusionary rule adopted

by the Supreme Court in United States v. Leon, 468 U.S.

897 (1984). Mitten argues that the evidence obtained

under the invalid warrant should have been excluded

and that the district court erred in concluding that the

good faith exception applied under the facts of this case.

The exclusionary rule is intended to vindicate rights

guaranteed by the Fourth Amendment by excluding

consideration at trial of illegally obtained evidence. The

exclusion of relevant and highly probative evidence,

however, interferes with the criminal justice system’s

truth-finding function, and thus application of the rule

can permit guilty defendants to go free. Stone v. Powell,

428 U.S. 465, 490 (1976). In light of the substantial societal

costs of the rule, and recognizing that the primary, if

not sole, justification for the exclusionary rule is the

deterrence of police misconduct, the Supreme Court held

in Leon that suppression of evidence is not an appropriate

remedy when the officers who obtained the evidence

did so in good faith reliance upon a facially valid warrant

issued by a magistrate or judge. 468 U.S. at 922 (“We

conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively

reasonable reliance on a subsequently invalidated search
4 No. 09-1758

warrant cannot justify the substantial costs of exclusion.”).

It is that exception that the district court found applicable

here. It concluded that even though the warrant was

invalid, the officers acted in good faith reliance upon

its validity.

This Court reviews the district court’s ultimate legal

conclusion that the officer reasonably relied upon

a warrant later found to be invalid under the de novo

standard of review. United States v. Koerth, 312 F.3d 862,

865 (7th Cir. 2002). In deciding whether an officer was

acting in good faith, the fact that the officer sought to

obtain a warrant is prima facie evidence that he was

acting in good faith. United States v. Bell, 585 F.3d 1045,

1052 (7th Cir. 2009) (citing Leon, 468 U.S. at 921 n. 21).

The presumption of good faith that thereby arises, however, can be rebutted if the defendant shows that “(1) the

judge issuing the warrant abandoned his detached and

neutral role; (2) the officer was dishonest or reckless

in preparing the affidavit; or (3) the warrant was so

lacking in probable cause that the officer’s belief in its

existence was entirely unreasonable.” United States v.

Garcia, 528 F.3d 481, 487 (7th Cir. 2008).

Mitten does not argue that the issuing judge

abandoned his detached and neutral role and merely

rubber-stamped the warrant; nor does he argue that

Officer Eddie Connelly, the officer who obtained the

warrant, was reckless or dishonest in preparing the

supporting affidavit. Instead, he argues that Officer

Connelly’s affidavit was so clearly deficient that no officer

could reasonably rely upon it as authorization to search
No. 09-1758 5

The same affidavit was used to obtain a search warrant for 2

Mitten’s mother’s house at 733 13th Street in the City of Moline.

The issuance of that warrant is not at issue in this appeal.

Apartment H14. Mitten contends that the affidavit was 2

essentially “bare bones” and rested upon conclusory,

uncorroborated, and stale accounts of criminal activity

from two confidential informants whose reliability was

never established. “Bare bones” affidavits such as

Officer Connelly’s, Mitten argues, “should not be

protected by the good faith exception.” Brief of Defendant-Appellant at 27.

Though not a model of clarity or draftsmanship, we

do not accept Mitten’s characterization of Officer

Connelly’s six-and-a-half-page affidavit as “bare bones.”

Nor is it based solely upon stale accounts from

confidential informants lacking all indicia of reliability.

Officer Connelly’s recitation of the facts supporting his

application for a search warrant for the apartment of

Mitten’s girlfriend begins with a traffic stop on

November 19, 2007, more than seven months before the

search. Mitten and Robert J. White were arrested after

small amounts of marijuana, powder cocaine and five

individually wrapped crack cocaine rocks were found in

a car they were driving. The car was owned by a local

auto dealer, and Mitten had placed $1,000 cash down

on the car sometime earlier. Mitten took responsibility

for the drugs and was subsequently placed on probation.

At that time, Mitten claimed that both he and White

lived with Mitten’s mother in Moline, Illinois.
6 No. 09-1758

The affidavit next recites that Officer Connelly was

told by a confidential source (CS-1), who admitted that

he had been dealing crack cocaine for approximately

three months, that he purchases all of his crack cocaine

from the same drug dealer at Apartment H14 of the

Maple Ridge apartment complex. CS-1 told Officer

Connelly that the drug dealer drove a tan Buick Park

Avenue, which matched the description of one of the

vehicles Mitten had been seen driving by surveillance

officers. When shown a picture of Mitten, CS-1 positively

identified him as the person from whom he had been

buying crack at the Maple Ridge apartment. Officer

Connelly noted that Krystal Phillips was listed as the

renter of Apartment H14, and the utilities for that

address were billed to her name.

A second confidential source (CS-2), who admitted he

had been dealing narcotics for over ten years, told police

that in May 2008 he purchased a distribution amount of

crack cocaine in an apartment located in the H building

of the Maple Ridge apartment complex where a black

female known as Krystal lives. CS-2, whom Officer

Connelly stated had provided truthful and accurate

information that led to at least one additional arrest in

the past, also stated that White was present during the

transaction.

Officer Connelly’s affidavit goes on to recount that

Mitten and White were again stopped by police on May

29, 2008, while driving a tan 1994 Buick Park Avenue,

which Mitten claimed to own. White was arrested on an

outstanding warrant for Aggravated Fleeing and
No. 09-1758 7

Eluding, and in a search of the vehicle incident to the

arrest, police found a small amount of cannabis and

$13,235 in U.S. currency, most of which was found under

the front passenger seat, but $2,315 of which was found

in Mitten’s possession. Police found twenty to thirty

mini “zip-loc” baggies on White. Mitten claimed he was

on his way to Chicago, but was headed toward the

Maple Ridge apartments because he intended to stop

and say goodbye to his girlfriend Krystal Phillips first.

Mitten acknowledged that the small amount of cannabis

was his and subsequently admitted that he sold cannabis.

Mitten and White claimed that the mini “zip-loc” baggies

found on White were for the sale of nickel bags, or

non-felony amounts, of cannabis. With respect to the

large amount of money found under the passenger

seat, Mitten stated that White placed it there when he got

in the vehicle, but Mitten apparently denied any further

knowledge about where the money came from because

it was “none of his business.” White was apparently

unaware of the total amount of money found in the

vehicle, and stated he received $4,000 from his father

and $4,500 from his mother to buy a car. When police

later telephoned them, however, both of White’s parents

denied they had given him such an amount of money.

Officer Connelly also noted in his affidavit that based

on his own experience as a drug investigator, mini

“zip-loc” baggies such as those found in White’s possession are consistent with the sale of crack cocaine or

heroin, not cannabis.

The affidavit describes a search of a trash bag left

outside of Mitten’s mother’s house in Moline, where
8 No. 09-1758

Mitten claimed he and White lived, on June 3, 2008.

Police found a letter addressed to Mitten from his auto

insurance carrier and a single joint containing cannabis

among the items of trash.

Finally, Officer Connelly recounted police surveillance

reports of Mitten on the evening of June 12, 2008, as he

was driving a white 1999 Buick Park Avenue registered

to Krystal Phillips with White as a passenger. Police

followed Mitten as he drove in and around Moline in

the area of his mother’s house and then in the vicinity of

the Maple Ridge apartments in Rock Island. The routes

taken by Mitten and the number and nature of stops he

made along the way led the officers to conclude Mitten

was doing countersurveillance to avoid being detected

by police.

Although the affidavit recites additional facts, they

add little if any weight to the probable cause determination. From what we have recounted, however, it should

be clear that the warrant was not “bare bones.” As

the district judge noted, it clearly established a pattern

of drug-related activity involving Mitten. In fact, Officer

Connelly’s affidavit contains evidence that Mitten admitted as much during the May 29 traffic stop, claiming

he sold small amounts of marijuana. Of course, the

other evidence described in the affidavit supports the

inference that Mitten and White were selling more than

small amounts of marijuana. The mini “zip-loc” baggies

found on White during the May 29 traffic stop were

consistent with crack or heroin sales, not marijuana, and

the amount of money found in their possession suggested
No. 09-1758 9

The district judge also observed that “when people are 3

carrying around multiple individually wrapped rocks of

crack, they’re normally for sale.”

more than occasional sales. Considered together with

the fact that at the November 19, 2007 stop, some six

months earlier, five individually wrapped crack cocaine

rocks were found on Mitten’s person and the statements

of the confidential sources, the totality of evidence recounted strongly suggests that they were crack dealers.3

The district court also noted, however, that there were

problems with the affidavit. There was no indication that

CS-1 had previously provided reliable information to

police, and the affidavit was silent as to when CS-1 made

his crack purchases from Mitten at the Maple Ridge

apartment. Although CS-2 is said to have provided

truthful and accurate information in the past that led to

one additional arrest, the affidavit does not describe

the nature of the information that was provided, or say

how long ago it was provided. CS-2 did state that the

transaction at the Maple Ridge complex occurred

during the month of May 2008, but does not give a

specific date. CS-2 also failed to specify the apartment

number where the transaction occurred, instead

describing it as an apartment in the H building of the

Maple Ridge complex where a woman named Krystal

lived. In the view of the district court, this information

was insufficient to establish a connection between

evidence of criminal drug dealing by Mitten and White,

on the one hand, and Apartment H14 of the Maple Ridge
10 No. 09-1758

complex on the other. The district court further

concluded, however, that the affidavit was not so

lacking that Officer Connelly’s belief that it established

probable cause was entirely unreasonable.

We agree with the district court that Mitten failed to

rebut the presumption that Officer Connelly relied on

the warrant in good faith. The deficiencies noted in the

affidavit are not so egregious as to render his belief in the

warrant’s validity unreasonable. Mitten argues that

Connelly’s affidavit recites only two instances in which

drug dealing is alleged to have taken place at Phillips’

apartment, and that both are based upon information

provided by two separate confidential informants “whose

conclusory accounts of criminal activity at the premises

are wholly uncorroborated, and whose reliability, veracity

and basis for knowledge are unestablished.” Brief of

Defendant-Appellant at 24. But this is not true. Although

only two confidential informants provided information

about drug dealing taking place at Phillips’ apartment, the

information was about more than two occurrences. CS-1

stated that he made all of his crack purchases over the

three-month period he was dealing crack at Apartment

H14 at the Maple Ridge Apartments. He positively identified Mitten as his source from a photograph, and

described the kind of car he had seen Mitten driving. CS-2

likewise stated he had purchased a distribution quantity

of crack from an apartment in Building H sometime

during the month of May 2008. The additional facts that

a woman named Krystal was the renter of the apartment

and that White was present during the transaction are

sufficient to give rise to a reasonable inference that

this transaction also took place in Apartment H14.
No. 09-1758 11

It is true that the affidavit lacks any information about

CS-1’s history of providing truthful information, and the

one instance cited in regard to CS-2 is vague. In applying

for search warrants, however, police are not limited to

relying only on informants with proven track records of

providing truthful information. Past performance is one

way of establishing the veracity or reliability of an informant, but it is not the only way. The reliability or

veracity of an informant in a particular case can also be

shown by corroboration of the information he provides

through independent police investigation. Illinois v. Gates,

462 U.S. 213, 241 (1983). Indeed, Gates held that even

information from a single anonymous informant can be

corroborated to the degree needed to establish probable

cause for the issuance of a search warrant. Here, there

was not one informant who claimed to have purchased

drugs out of Mitten’s girlfriend’s apartment, but two, and

neither was anonymous; police knew their identities.

Each informant’s statement that he purchased crack at

the apartment generally corroborated the other’s, and

both in turn were corroborated, at least in part and in

general, by the additional information independently

obtained by police that indicated that Mitten and

White were involved on an ongoing basis with

distributing drugs, and that Mitten had a close relationship with Phillips. See United States v. Wiley, 475 F.3d 908,

916-17 (7th Cir. 2007) (holding that notwithstanding

absence of statement attesting to credibility of informant,

general corroboration by other information, including

information from separate informant, was sufficient

to establish probable cause.).
12 No. 09-1758

It is also noteworthy that the statement of each

informant appears to have been contrary to his penal

interests, at least on the surface. In effect, each admitted

that he was not simply a crack user, but a crack dealer, a

serious crime under both state and federal law. Statements

against penal interest have also been viewed as carrying

some indicia of reliability:

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. That the informant may be paid or

promised a ‘break’ does not eliminate the residual

risk and opprobrium of having admitted criminal

conduct. Concededly admissions of crime do not

always lend credibility to contemporaneous or later

accusations of another. But here the informant’s

admission that over a long period and currently he

had been buying illicit liquor on certain premises,

itself and without more, implicated that property

and furnished probable cause to search.

United States v. Harris, 403 U.S. 573, 583-84 (1971). To be

sure, it is probable that both informants in this case

provided their information after they had been arrested

for selling crack and were motivated by a desire to

lessen the consequences they would likely suffer for

their own crimes. That is almost always the case in drug

investigations, but it does not make the information

they provide inherently unreliable. See United States v.

Olson, 408 F.3d 366, 371 (7th Cir. 2005) (“A motive to

curry favor, however, does not necessarily render an
No. 09-1758 13

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.’ ”) (quoting Koerth, 312 F.3d at 870). The

sought-after reward from law enforcement in such cases

is generally contingent upon the information provided

by such an informant being accurate and useful.

Finally, the fact that each informant claimed to have

purchased the crack himself describes the basis for his

knowledge, i.e., personal observation. Though light on

details, neither source’s account can be accurately characterized as wholly conclusory, that is, consisting of a bare

conclusion with no factual basis. See Gates, 462 U.S.

at 239. Implicit, at least inferentially, in Officer

Connelly’s affidavit is the assertion that each of these

experienced crack dealers reported to a police officer

that he personally went to Apartment H14 where he

purchased a significant quantity of a substance he recognized as crack cocaine. Mitten’s statement to police

during the May 29 traffic stop that he was on his way to

his girlfriend Phillips’ apartment, and the police surveillance reports stating that he was seen driving Phillips’

car show the close connection between the two that,

together with the informants’ accounts, makes probable

the notion that Mitten and White had sold crack out

of Phillips’ apartment.

Perhaps the most serious deficiency in the affidavit

submitted by Officer Connelly is the age of the information, especially the information relating to Apartment
14 No. 09-1758

H14. It is not enough to establish probable cause that

the apartment at one time contained contraband or evidence of a crime. Probable cause to search, except in the

case of anticipatory search warrants, exists “only if it

is established that certain identifiable objects are

probably connected with certain criminal activity and are

probably to be found at the present time in a certain

identifiable place.” 2 Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 3.7(a) at 371

(4th ed. 2004). Officer Connelly obtained the warrant on

June 27, 2008. Yet, there was no date given for when CS-1

purchased crack out of the apartment, and CS-2

reported only one purchase on an unspecified date in

May. The most recent information set forth in the

affidavit consisted of the June 12, 2008, report

that Mitten and White seemed to be conducting

countersurveillance as they drove in the area of the

Maple Ridge apartment complex in Rock Island and

Mitten’s mother’s house in Moline. Mitten argues that the

information contained in Officer Connelly’s affidavit, even

if sufficient to establish probable cause that crack was

previously sold out of Phillips’ apartment, was too stale

to support a finding of probable cause that the

evidence sought would likely be found there on June 27,

2008, when the warrant was issued, or July 1, 2008, when

it was finally executed.

Even this deficiency, however, does not convince us

that Officer Connelly’s reliance on the warrant was unreasonable. As noted above, the evidence recounted in the

affidavit indicates an ongoing pattern of drug dealing by

Mitten and White. It is well established that the “[p]assage

of time is less critical when the affidavit refers to facts that
No. 09-1758 15

indicate ongoing continuous criminal activity.” United

States v. Pless, 982 F.2d 1118, 1125-26 (7th Cir. 1992); see

also United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir.

1991) (“Indeed, at least one circuit has recognized that

probable cause may be found ‘several weeks, if not

months,’ after ‘the last reported instance of suspect

[drug-trafficking] activity.’ ”) (quoting United States v.

Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986)).

It is in this respect that this case differs from United

States v. Owens, 387 F.3d 607 (7th Cir. 2004), a case

Mitten cites in support of his argument that the

evidence was too stale to support a finding of probable

cause. In Owens the Court held that an affidavit that

merely stated that three months earlier an informant

had purchased an unspecified amount of crack cocaine

from the defendant at a house believed to be his

residence was insufficient to support the warrant that

was issued. The Court found the affidavit so inadequate

that the good faith exception could not even be applied

to save the search because the officers who conducted

the search could not have reasonably believed it was

valid. Id. at 608. Unlike this case, however, there was

no evidence in Owens that the sale was anything other

than an isolated occurrence; there was no evidence of

ongoing criminal activity. Instead, this case is more like

United States v. Spry, 190 F.3d 829 (7th Cir. 1999), where

the Court upheld a warrant issued in February 1998

based on an affidavit recounting evidence seized from

the defendant’s home under a May 1997 warrant,

together with reports from multiple informants that the

defendant continued to traffic in drugs following her

1997 arrest. “[N]either the uncertainty of the reliability
16 No. 09-1758

It is also noteworthy that Officer Connelly sought and

4

obtained the approval of the Rock Island County Assistant

State’s Attorney before presenting his warrant request to the

state judge who issued it. See United States v. Merritt, 361 F.3d

1005, 1012 (7th Cir. 2004) (“Agent Vergon’s consultation with

the AUSA particularly supports the finding that his reliance

upon the warrant was objectively reasonable.”), vacated on

other grounds, 543 U.S. 1099 (2005).

of the informants, nor the age of the information in the

warrant affidavit,” the Court concluded, “should give

this Court cause to overrule and hold that the district

court committed error in finding that probable cause

existed to support the 1998 search warrant.” Id. at 836.

In this case, of course, the issue of the warrant’s validity

is not before us. The government has not challenged the

district court’s determination that the state judge who

issued the warrant lacked “a substantial basis for concluding that probable cause existed,” Gates, 462 U.S. at

238-39 (internal quotes and brackets excluded), and we

see no reason to disturb that ruling. The issue before us

is whether the affidavit was so lacking in probable

cause that Officer Connelly could not have believed the

warrant valid. For the reasons explained above, we

hold that it was not. We therefore affirm the district 4

court’s order denying Mitten’s motion to suppress.

II.

As noted above, following the district court’s denial of

his motion to suppress, Mitten entered a guilty plea to

the crack cocaine charge and proceeded to trial on the
No. 09-1758 17

charge that he had possessed a firearm in furtherance of

a drug trafficking offense in violation of 18 U.S.C. § 924(c).

The jury returned a verdict of guilty, and Mitten claims

the evidence was insufficient to support the verdict. He

contends that the evidence adduced at trial was

insufficient to establish beyond a reasonable doubt that

he possessed a firearm “in furtherance” of his drug trafficking. The mere fact that a gun was found in the apartment, he argues, is insufficient to prove that he

possessed a firearm in furtherance of his drug trafficking

crime.

Mitten has a heavy burden in seeking to overturn a

jury’s verdict. “A defendant attacking the sufficiency of

the evidence used to convict him faces a nearly insurmountable hurdle.” United States v. Morris, 576 F.3d 661,

665-66 (7th Cir. 2009) (internal quotes and citations omitted). We view the facts in the light most favorable to

the verdict, United States v. Calabrese, 572 F.3d 362, 364

(7th Cir. 2009), and will reverse only if no rational juror

could have found guilt beyond a reasonable doubt.

Morris, 576 F.3d at 666 (citations omitted). Mitten has

not met his burden here.

At the outset, we agree with Mitten that the mere

presence of a firearm in a dwelling where drugs have

been sold is insufficient to prove the “in furtherance”

element of Section 924(c). This Court has repeatedly

held that “there must be a showing of some nexus

between the firearm and the drug selling operation.”

United States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005); see

also United States v. Vaughn, 585 F.3d 1024, 1029 (7th Cir.

2009); United States v. Fouse, 578 F.3d 643, 650-51 (7th Cir.
18 No. 09-1758

2009). We recognize that “a possessed gun can forward

a drug-trafficking offense by providing the dealer, his

stash or his territory with protection.” Duran, 407 F.3d at

480 (citing United States v. Castillo, 406 F.3d 806, 814-18 (7th

Cir. 2005); United States v. Luciano, 329 F.3d 1, 6 (1st Cir.

2003)). On the other hand, it is important to distinguish

between the type of possession targeted by the statute

and the “ ‘innocent possession of a wall-mounted antique

or an unloaded hunting rifle locked in a cupboard.’ ”

Duran, 407 F.3d at 840 (quoting United States v. Mackey, 265

F.3d 457, 461 (6th Cir. 2001)). To aid in distinguishing

between the criminal “possession-in-furtherance” covered

by Section 924(c) and the innocent possession that

falls outside its scope, the Duran Court suggested consideration of a series of factors set out by the Fifth

Circuit in United States v. Ceballos-Torres, 218 F.3d 409,

414-15 (5th Cir.), modified on denial of rehearing, 226 F.3d

651 (5th Cir. 2000). They include “the type of drug

activity that is being conducted, accessibility of the

firearm, the type of the weapon, whether the weapon is

stolen, the status of the possession (legitimate or illegal),

whether the gun is loaded, proximity to drugs or drug

profits, and the time and circumstances under which the

gun is found.” Duran, 407 F.3d at 480 (quoting

Ceballos-Torres, 218 F.3d at 414-15). Ultimately, common

sense must be the guide. Duran, 407 F.3d at 480.

Based on our consideration of the Ceballos-Torres

factors here, we conclude that the evidence was sufficient to support the verdict. The evidence established

that Mitten had been dealing crack cocaine, which has

long been recognized as a dangerous pursuit often requiring firearms protection. The firearm found in the
No. 09-1758 19

apartment was a 9mm handgun which is easily

concealed and transported. The gun was located on the

top shelf of a closet about five feet down a hallway

from more than $6,000 worth of drugs, additional cash,

and scales. It was loaded with a round in the chamber.

Police found a plastic Pepsi bottle with a concealed compartment on the same shelf as the gun and a cigar box

containing $176 on the second shelf. Finally, Mitten

possessed the weapon illegally. The fact that the

firearm was not stolen is the only Duran factor that

favors Mitten. The absence of this single factor, however,

is hardly a basis for overturning the jury’s verdict.

Mitten argues that the evidence is nevertheless insufficient because “no testimony was presented that [he] ever

sold drugs from the apartment, or that the handgun

was readily accessible to him, or that he ever possessed

the handgun during any drug transaction.” Brief of

Defendant-Appellant at 33. He also points to his

post-arrest explanation for why he had the gun. Mitten

told police that he had the gun at the apartment

because Rock-Island’s citizens did not like people from

Chicago and that he was having problems with a

particular person. Id.

Mitten’s argument is unconvincing. His drug trafficking

crime was possession of crack cocaine with intent to

distribute. It is in furtherance of that crime that the government charged him with possession of a firearm. Thus,

the fact that the government presented no testimony

at trial that he ever sold drugs from the apartment or

carried the gun with him during actual sales is irrelevant.

There is no requirement that a drug dealer have the gun
20 No. 09-1758

in his possession during uncharged sales in order for his

possession of a firearm to be in furtherance of the crime

of possession of crack with intent to distribute. DEA

Special Agent Jon Johnson testified that “[d]rug traffickers

will commonly possess firearms to protect their product,

to protect their drugs, to protect their cash, to protect

their life and even to protect their turf.” Even if the

jury heard no evidence that Mitten sold drugs at the

apartment, it did know that more than $6,000 worth

of drugs and additional money was in the apartment on

the day the warrant was executed. Drug dealers deal

with people who are often desperate and violent. They

cannot rely upon local law enforcement to protect their

illegal product or profits. In light of these facts, it was

reasonable for the jury to infer that Mitten’s possession

of the gun was intended for the protection of his money

and his stash. And, of course, the jury was not required

to accept Mitten’s post-arrest explanation as to why he

had the gun. There were ample grounds to question

his credibility.

Mitten also cites United States v. Iiland, 254 F.3d 1264

(10th Cir. 2001), in support of his argument that the

evidence was insufficient to prove the “in furtherance”

element of Section 924(c). In Iiland the Tenth Circuit

reversed a Section 924(c) conviction of a drug dealer that

was based upon a firearm that was found in his apartment

during a search. In Iiland, however, the defendant’s

drugs were found in a separate storage unit, and the

government offered no evidence the drugs and gun were

ever kept at the same place or that the gun was ever

accessible when the defendant conducted a drug transaction. Id. at 1274. Here, by contrast, the loaded gun was
No. 09-1758 21

Possession of five grams or more of crack cocaine with intent

5

to distribute carries a minimum sentence of 5 years imprisonment and a maximum of 40 years if the defendant has not

previously been convicted of a felony drug offense. Because

Mitten had previously been convicted of a felony drug

offense, he faced a minimum sentence of 10 years and a maximum of life. 21 U.S.C. § 841(b)(1)(B).

found in the same apartment and in close proximity to

drugs and money. In fact, it was found in a closet alongside a Pepsi bottle with a hidden compartment and

above another shelf where a cigar box containing $176

was found. The jury here had sufficient evidence to

conclude that the gun was possessed in furtherance of

the drug trafficking crime, and its verdict cannot be

disturbed. 

III.

Mitten’s final claim is that the district court erred in

construing 18 U.S.C. § 924(c) as mandating a consecutive

sentence of at least five years under the circumstances

of this case. Relying on the Second Circuit’s decision in

United States v. Whitley, 529 F.3d 150 (2008), and that

circuit’s even more recent decision in United States v.

Williams, 558 F.3d 166 (2d Cir. 2009), Mitten argues that

the fact that his underlying drug trafficking crime

carried a minimum sentence of ten years exempts him

from the consecutive five-year sentence mandated by

Section 924(c)(1)(A)(i) where the minimum sentence for

the underlying crime is less.

5
22 No. 09-1758

As Mitten acknowledges, this Court rejected Whitley’s

interpretation of Section 924(c) in United States v. Easter,

553 F.3d 519 (7th Cir. 2009), as has every other circuit that

has addressed the issue. See United States v. Segarra,

582 F.3d 1269 (11th Cir. 2009) (rejecting claim that consecutive sentences for convictions of §§ 841 and 924(c)

unlawful); United States v. Parker, 549 F.3d 5 (1st Cir.

2008) (affirming consecutive sentences for convictions of

§§ 841, 846 and 924(c)); United States v. Jolivette, 257 F.3d

581 (6th Cir. 2001) (affirming consecutive sentences for

armed bank robbery and § 924(c) convictions); United

States v. Studifin, 240 F.3d 415 (4th Cir. 2001) (affirming

consecutive sentences for robbery and § 924(c)); United

States v. Alaniz, 235 F.3d 386 (8th Cir. 2000) (affirming

consecutive sentences for convictions of §§ 841 and 924(c)).

We decline Mitten’s invitation to revisit an issue this

Court decided only a year ago. Not only was the Second

Circuit’s interpretation of Section 924(c) in Whitley fully

addressed by a three-judge panel of this Court in Easter,

but a majority of the active judges also voted to deny a

petition for a rehearing of the case en banc. 7th Cir. R. 40(e).

For the reasons set forth by this Court in Easter, we

hold that Mitten was not exempt from the consecutive

term of imprisonment mandated by Section 924(c). The

district court correctly concluded that a sentence of at

least five years, consecutive to Mitten’s drug trafficking

crime, was mandated.
No. 09-1758 23

IV.

In conclusion, we hold that Officer Connelly’s affidavit

was not so lacking in probable cause as to make reliance

on it unreasonable. There was also sufficient evidence to

support the jury’s verdict on the Section 924(c) charge.

Finally, Mitten’s argument that the minimum ten-year

sentence to which he was subject on the underlying drug

trafficking crime rendered him exempt from Section

924(c)’s consecutive sentence scheme is foreclosed by

this Court’s prior holding in Easter. Accordingly, his

conviction and sentence are AFFIRMED.

1-20-10