United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 20, 2011

Decided January 21, 2011

Before

RICHARD A. POSNER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 10‐2737

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JAMES LIPSEY,

Defendant‐Appellant.

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 08‐CR‐298

C. N. Clevert, Jr.,

Chief Judge.

O R D E R

Based on an informant’s tip, police obtained a warrant to search the home of James

Lipsey, a felon, and they found two handguns, a short‐barreled shotgun, and ammunition.

After being indicted, Lipsey moved to suppress the firearms based on a lack of probable

cause for the warrant, and the district court denied the motion.  Lipsey then entered a

conditional guilty plea to one count of being a felon in possession of a firearm.  See 18 U.S.C.

§ 922(g)(1).  As part of his plea agreement, he reserved his right to challenge the denial of

his motion to suppress.  The district court sentenced him to 100 months’ imprisonment, 20

months below the statutory maximum, which itself was below the applicable guidelines

range of 140 to 175 months.  Lipsey appeals, but his appointed attorney has concluded that

the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738

(1967).  Lipsey did not respond to counsel’s submission.  See CIR. R. 51(b).  We review only

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 10‐2737 Page 2

the potential issues identified in counsel’s facially adequate brief.  See United States v. Schuh,

289 F.3d 968, 973‐74 (7th Cir. 2002).

Lipsey has not indicated that he wants his guilty plea set aside, so counsel properly

omits any discussion of the adequacy of the plea colloquy or the voluntariness of the plea.

See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002).  

Counsel first considers whether Lipsey could argue that the search warrant wasn’t

supported by probable cause.  The warrant to search Lipsey’s home was based on the

affidavit of Officer Andrew Matson.  Matson attested that a confidential informant—whom

he knew to have ties to the same gang as Lipsey—came forward to report that he had

observed Lipsey, within the past 72 hours, selling cocaine and storing firearms at his home.

The informant identified three specific handguns that Lipsey kept in his bedroom.  In his

motion to suppress, Lipsey posed concerns that the informant didn’t explain why he was at

Lipsey’s home, didn’t provide enough details to show that he was reliable, and didn’t give

any statement against his penal interest.

When, as here, a judge is presented with only an affidavit in support of a search

warrant, “the validity of the warrant rests solely on the strength of the affidavit.”  United

States v. Bell, 585 F.3d 1045, 1049 (7th Cir. 2009).  The strength of the affidavit depends on

whether, “based on the totality of the circumstances, the affidavit sets forth sufficient

evidence to persuade a reasonably prudent person that a search will uncover evidence of a

crime.” United States v. Carson, 582 F.3d 827, 831 (7th Cir. 2009); see Illinois v. Gates, 462 U.S.

213, 238 (1983); United States v. Farmer, 543 F.3d 363, 377 (7th Cir. 2008).  Since the affidavit

relies on an informant’s tip, we would consider the amount of detail provided by the

informant, the degree to which these details were based on personal observation, the time

interval between the informant’s observations and the warrant application, whether the

informant appeared before the issuing judge, and whether police corroborated the

informant’s tip.  See Bell, 585 F.3d at 1049; Farmer, 543 F.3d at 377.

We agree with counsel that it would be frivolous to challenge whether probable

cause supported the warrant in this case.  As the district court noted when denying the

motion to suppress, the warrant application was filed within 72 hours of the informant’s

first‐hand observations; the informant identified Lipsey, his residence, and the location of

three specific handguns inside the residence; the informant had given reliable information

to the police in the past; and the police could corroborate some of the information given by

the informant.  Because substantial evidence supports a finding of probable cause, we

would defer to the decision of the judge issuing the warrant and conclude that Lipsey’s

argument is frivolous.  See Farmer, 543 F.3d at 377; United States v. Curry, 538 F.3d 718, 729

(7th Cir. 2008).
No. 10‐2737 Page 3

Counsel additionally examines whether Lipsey could contend that his below‐range

sentence is unreasonably high.  We agree with counsel that this argument would be

frivolous.  The district court sentenced Lipsey well below the guidelines range and a below‐

range sentence is presumed reasonable.  See United States v. Jackson, 598 F.3d 340, 345 (7th

Cir.), cert. denied, 131 S. Ct. 435 (2010); United States v. Wallace, 531 F.3d 504, 507 (7th Cir.

2008) (“We have never deemed a below‐range sentence to be unreasonably high.”).  We are

presented with no reason to challenge that presumption here.

We GRANT counsel’s motion to withdraw and DISMISS the appeal.