United States v. Olson, Lawrence

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 chal-
lenges 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 rele-
vant conduct determination insufficiently supported, and
vacate Olson’s sentence and remand his case for resentenc-
ing.

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 es-
tablish 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, Wiscon-
sin 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 at-
tempted 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. Subse-
quent 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 involv-
ing 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 posses-
sion 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 fire-
arm charge, contending that 18 U.S.C. § 922(g)(1) is uncon-
stitutional, 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 crim-
inal history point for Olson’s conviction in a Rock County
Wisconsin Circuit Court Case (No. 95 CF 304B) for posses-
sion 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 estab-
lished 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 prob-
able 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 credibil-
ity, 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 mari-
juana 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 cor-
roborated, the government cites Tomas’s review of confiden-
tial 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 re-
vealed 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 credi-
bility. Joseph was not just an informant, but a newly-
arrested 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 incen-
tive 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 estab-
lish 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 re-
view; 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 credibil-
ity—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 pro-
vide 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 re-
ported that Olson sold marijuana and stored it in outbuild-
ings 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 infor-
mation, 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 traffick-
ing, 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 corrobora-
tive 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 sepa-
rately may be slight, together they suffice to corroborate
Joseph’s story; and, when viewed under the “totality-of-the-
circumstances” 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 de-
tached’ 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 stat-
ute prohibiting the possession of firearms by felons, is un-
constitutional. 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 com-
merce.” 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 unlaw-
ful. 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 defen-
dant’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 con-
stitutes 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 mari-
juana 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 mari-
juana 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—posses-
sion 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 con-
viction 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 cate-
gorized. 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 rele-
vant 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 im-
poses its new sentence upon remand, it must do so in accord
with Booker, as Booker decidedly governs all sentences im-
posed 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