In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3541

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

D URICCO R. JOHNSON,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                 for the Central District of Illinois.
            No. 07 CR 1021—Joe Billy McDade, Judge.



     A RGUED M AY 11, 2009—D ECIDED S EPTEMBER 4, 2009




 Before C UDAHY, P OSNER, and K ANNE, Circuit Judges.
  K ANNE, Circuit Judge. In October 2007, based on infor-
mation from a confidential informant, police officers
obtained and executed a search warrant for Duricco
Johnson’s apartment, where they found drugs, handguns,
and ammunition. Johnson was arrested and charged in
a three-count indictment on October 16, 2007. He later
pled guilty to two of the counts, and the district court
sentenced him to sixty months’ imprisonment after re-
2                                               No. 08-3541

ducing the sentence for his substantial assistance to the
government pursuant to 18 U.S.C. § 3553(e). Johnson
appeals both his conviction and sentence, challenging
the district court’s refusal to (1) conduct an evidentiary
hearing to determine the veracity of the warrant and
(2) consider the factors in 18 U.S.C. § 3553(a) when decid-
ing how far below the statutory minimum to reduce
his sentence. We now affirm.


                     I. B ACKGROUND
  On October 8, 2007, a confidential informant told
Officer Chad Batterham of the Peoria, Illinois, Police
Department that Duricco Johnson was selling drugs
from a tan, two-story apartment located at 1819 North
Lehman Road, #16. The informant described Johnson as
a black male in his late twenties, approximately 5'8" tall
and 225 pounds with short black hair. The informant
claimed to have been in the apartment at least three
times in the past thirty days, most recently within seventy-
two hours, and stated that Johnson regularly sold
crack from that address. On each occasion, the
informant saw an off-white, rock-like substance in John-
son’s possession. The informant corroborated his descrip-
tion of Johnson by identifying him from a six-photo-
graph spread.
  The next day, Officer Batterham appeared in court and
signed a complaint detailing this information. He also
stated that the same informant had previously provided
police with reliable information that had led to the execu-
tion of twenty-three search warrants, forty-four arrests,
No. 08-3541                                                3

and the seizure of large quantities of drugs and firearms.
Finally, Batterham explained that he had checked John-
son’s criminal record, which revealed six prior drug
arrests.
  Based on Batterham’s complaint, police received a
search warrant for the apartment, which they executed on
October 10. In a kitchen cabinet they found two plastic
bags containing 7.9 grams of crack, two loaded handguns,
and a box of ammunition. Police also found Johnson on
the second floor of the apartment and took him into
custody.
  A grand jury returned a three-count indictment
charging Johnson with (1) possession with the intent to
distribute of more than five grams of crack cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); (2) posses-
sion of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c); and (3) being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g).
  On May 9, 2008, Johnson moved for a hearing under
Franks v. Delaware, 

(1978), and to quash
Batterham’s complaint and suppress the seized evidence,
pointing to several alleged falsities in the informant’s
statement to Batterham. Johnson and his girlfriend,
Amelia Brown, each submitted supporting affidavits
stating that no one other than the two of them and their
young children had been in the apartment in the
month preceding the warrant, and he argued that the
informant’s allegations were impossible. On June 10, the
district court denied Johnson’s motion because he had
4                                               No. 08-3541

made no allegation that Batterham knew or should
have known that any of the informant’s statements
were false.
   Johnson later pled guilty to the first two counts of the
indictment, reserving the right to appeal the court’s
ruling on his earlier motion, and the government
dropped count three. Prior to Johnson’s sentencing hear-
ing, a probation officer prepared a Presentence Investi-
gation Report (PSR), which noted that Johnson faced a
mandatary minimum sentence of ten years’ imprison-
ment for the drug possession charge due to his prior
drug convictions. See 21 U.S.C. § 841(b)(1)(B).1 For the
firearm conviction, Johnson faced a mandatory five-
year prison term, to be served consecutively to the sen-
tence for the drug charge. See 18 U.S.C. § 924(c); see
also U.S.S.G. § 5G1.2(a).
  At the sentencing hearing, the government moved
to reduce Johnson’s sentence below the mandatory mini-
mum based on his substantial assistance to the govern-
ment. See 18 U.S.C. § 3553(e). Johnson then requested
that the district court consider the § 3553(a) sentencing



1
   Johnson’s total offense level after receiving a downward
adjustment for acceptance of responsibility was twenty-one.
With a criminal history category of III, Johnson’s Guidelines
sentence would have been forty-six to fifty-seven months’
imprisonment, which was below the statutory minimum of
ten years’ imprisonment. Consequently, Johnson’s Guidelines
sentence increased to ten years. See U.S. Sentencing Guide-
lines Manual (U.S.S.G.) § 5G1.1(b).
No. 08-3541                                            5

factors to determine the appropriate reduction to his
sentence. The district court refused Johnson’s request,
holding that the statute prohibited considering any-
thing other than Johnson’s assistance to the government
in reducing his sentence below the statutory minimum.
After taking that assistance into account, the court
imposed a sentence of sixty months for each count, to be
served consecutively.


                      II. A NALYSIS
  Johnson first claims that the district court erred in
denying him a Franks hearing to determine the veracity of
the warrant. He then argues that the district court was
required to consider the § 3553(a) factors when
applying the sentence reduction allowed by § 3553(e).
We find both arguments unconvincing.


 A. Johnson’s Request for a Franks Hearing
  Johnson argues that Officer Batterham’s complaint
contained false statements, which he made intentionally
or with reckless disregard for the truth. Specifically,
Johnson claims that the informant’s allegations were
false because no one other than Johnson, Brown, and
their young children had been in the apartment in the
thirty days before the warrant issued. Johnson also notes
that the informant inaccurately described both him and
the premises: Johnson was sixty-nine pounds heavier
than the informant described, and the apartment was
6                                                 No. 08-3541

pink and grey rather than tan. Based on these
inaccuracies and Batterham’s failure to corroborate the
informant’s statements, Johnson claims that the district
court was required to conduct a hearing to consider
the veracity of the complaint under Franks, 

.
We review the district court’s refusal to conduct a
Franks hearing for clear error. United States v. Pace, 

, 1226-27 (7th Cir. 1990).
  Affidavits and complaints supporting warrants are
presumed valid. To obtain a Franks hearing to rebut
that presumption, a defendant must make a substantial
preliminary showing that the complainant made “a
false statement knowingly and intentionally, or with
reckless disregard for the truth.” 

; see
also United States v. Jones, 

, 607 (7th Cir. 2000).
It is not enough to show that an informant lied to the
government officer, who then included those lies in the
complaint. United States v. McAllister, 

, 1417
(7th Cir. 1994). Instead, the evidence must show that
the officer submitting the complaint perjured himself or
acted recklessly because he seriously doubted or had
obvious reason to doubt the truth of the allegations. 

; United States v. Williams, 

,
602 (7th Cir. 1984). This burden is substantial, and
Franks hearings are rarely required. United States v.
Maro, 

, 821 (7th Cir. 2001).
  The most significant discrepancy that could, if true,
undermine the validity of the warrant is Johnson’s
claim that no one other than he, Brown, and their
young children had been in the apartment during the
No. 08-3541                                               7

relevant period. But we dismiss this argument because
even if the informant was lying about visiting
Johnson’s apartment, Johnson presented no evidence that
Batterham had reason to question the statement’s accuracy.
Batterham did not know who had been in the apart-
ment during the preceding month. Johnson implies that
Batterham should have doubted the informant’s state-
ment because it lacked detail, but this argument is
without merit. The informant’s account of his interac-
tions with Johnson is no less detailed than in affidavits
we have previously upheld. See, e.g., United States v. Reed,

, 342 (7th Cir. 1984) (finding sufficiently
descriptive an informant’s statement to police “only that
a person named ‘James’ was in the given apartment
that morning and had offered the informant cocaine”).
Given the reliable assistance the informant had given in
the past, Batterham did not act recklessly in relying on
his version of events.
  Johnson also claims that Batterham lied intentionally,
and he questions whether the informant existed at all. But
Johnson provides no evidentiary basis whatsoever for
that claim. Conclusory, self-serving statements are not
enough to obtain a Franks hearing. 

;
see also 

(“[T]he Franks presumption
of validity of an affidavit supporting a search warrant
cannot be overcome by a self-serving statement which
purports to refute the affidavit.” (citation omitted)). If
Johnson believes that Batterham lied, he must support
that allegation with an offer of proof, see 

, which he has not done.
8                                               No. 08-3541

  Johnson’s challenges to the informant’s incorrect descrip-
tion of Johnson’s appearance and the apartment are
likewise unsuccessful because there is no evidence that
Batterham was aware of these inaccuracies at the time
he filed the affidavit. Moreover, these descriptions were
irrelevant to the probable cause determination; if
Batterham had known they were inaccurate, this would
not necessarily have led him to believe that the informant
was lying altogether because the mistakes were minor
enough to have been innocent. See United States v.
Pritchard, 

, 1116 (7th Cir. 1984) (holding that
inaccuracies were “insufficiently substantial to undercut
the validity of the search warrant as a whole”); see also

-56 (holding that a defendant must
make a substantial preliminary showing that the false
statement was “necessary to the finding of probable
cause”). Thus, even if these errors were intentional or
reckless, “[they did] not come close to the kind of egre-
gious errors necessary to conduct a Franks hearing.” 

(holding that conflicting physical descrip-
tions and weight estimates were not significant enough
to require a Franks hearing).
  Finally, Batterham’s failure to corroborate the infor-
mant’s story did not constitute reckless disregard for
the truth. A known, reliable informant provided Batter-
ham with detailed information about a drug sale
involving Johnson, who had a history of prior drug con-
victions and whom the informant had identified in a
photo line-up. Where a police officer has received a
detailed tip from a reliable informant, his failure to
further corroborate that tip does not constitute reckless-
No. 08-3541                                                      9

ness. See 

(holding that information
received from a reliable source “was sufficiently descrip-
tive, current, and of apparent reliability, so that police
would not be required to verify the information”).2 That
the police could have done more work does not meet
the high standard for requiring a Franks hearing. See
United States v. Swanson, 

, 791 (7th Cir. 2000);
see also 

(“The fact that Jones can
point out additional things which could have been done
but were not does not in any way detract from what was
done.”). Even if the police’s failure to corroborate the
informant’s claims was negligent, “a little negli-
gence—actually even a lot of negligence—does not the
need for a Franks hearing make.” 

.
  Because Johnson has not established that any of the
alleged falsities in Batterham’s affidavit were made
intentionally or recklessly, the district court did not err
in denying his request for a Franks hearing, and his con-
viction must be affirmed. We now turn to Johnson’s
challenge to his sentence.




2
  The defendant’s brief heavily emphasizes the lack of corrobo-
ration, citing the four-factor test in United States v. Harris, 

, 739 (7th Cir. 2006). But these four factors are
relevant in deciding whether a confidential informant’s tip
was sufficient to establish probable cause, see 

a
separate, albeit related question from whether a police
officer acted with reckless disregard for the truth.
10                                               No. 08-3541

 B. The District Court’s Refusal to Consider the § 3553(a)
    Factors
  At Johnson’s sentencing hearing, the government
moved to reduce Johnson’s sentence below the statutory
minimum for his assistance to the government. See 18
U.S.C. § 3553(e). The district court granted that motion
but refused to consider other mitigating factors to
further reduce Johnson’s sentence. Johnson argues that
this was error, claiming that once the district court
reduced his sentence pursuant to § 3553(e), it was also
obliged to consider § 3553(a) to further reduce his sen-
tence below the otherwise mandatory sentence. This is
a question of law, which we review de novo. See United
States v. Woolsey, 

, 549 (7th Cir. 2008).
 Section 3553(e) provides as follows:
     (e) Limited authority to impose a sentence below
     a statutory minimum.—Upon motion of the Gov-
     ernment, the court shall have the authority to
     impose a sentence below a level established by
     statute as a minimum sentence so as to reflect a
     defendant’s substantial assistance in the investiga-
     tion or prosecution of another person who has
     committed an offense. Such sentence shall be
     imposed in accordance with the guidelines and
     policy statements issued by the Sentencing Com-
     mission pursuant to section 994 of title 28, United
     States Code.
The Guidelines state that when determining the appropri-
ate reduction, the court may consider factors such as
No. 08-3541                                               11

the usefulness of the defendant’s assistance, the reliability
of the information he has provided, the nature and extent
of his assistance, the risk of injury the defendant faced
from assisting the government, and the timeliness of
his assistance. U.S.S.G. § 5K1.1.
  We first addressed whether § 3553(e) allows a district
court to reduce a defendant’s sentence below the
statutory minimum for any factor other than substantial
assistance in United States v. Thomas (Thomas I), 

(7th Cir. 1991), overruled on other grounds by United
States v. Canoy, 

, 906 (7th Cir. 1994). We an-
swered that question in the negative, noting that the
“language [of § 3553(e)] clearly supports the govern-
ment’s view that only factors relating to a defendant’s
cooperation should influence the extent of a departure
for providing substantial assistance.” 

This
conclusion was bolstered by the policy statement in
§ 5K1.1, which lists factors for the district court to
consider, each of which “concerns circumstances bearing
upon the significance of a defendant’s cooperation.” 

that “[h]ad the Sentencing Commission
wished to permit courts to consider factors unrelated to
the quality of the defendant’s cooperation when
departing because of that cooperation, it seems likely
that it would have promulgated a list of examples en-
compassing factors unrelated to cooperation.” 

reaffirmed this holding in United States v. Thomas
(Thomas II), 

, 737 (7th Cir. 1993).
  Johnson claims that the Thomas line of cases was
flawed from its inception, but we see no merit to this
12                                              No. 08-3541

argument. The textual interpretation in Thomas I was
correct. The title of § 3553(e) makes clear that it grants
courts only limited authority to depart below the
statutory minimum sentence. See United States v. Williams,

, 1132 (8th Cir. 2007). The body of the
statute then defines that limit—the court may reduce
a defendant’s sentence “so as to reflect a defendant’s sub-
stantial assistance.” 18 U.S.C. § 3553(e) (emphasis added);
see also 

. “If a district court
imposes a sentence below the statutory minimum in
part so as to reflect the history and characteristics of the
defendant, see § 3553(a)(1), then the court exceeds the
limited authority granted by § 3553(e).” 

.
  Johnson also claims that Thomas I failed to adequately
address the Guidelines’ other policy statements, but his
argument is not persuasive. Johnson specifically points
to U.S.S.G. § 1B1.4, which provides that in determining
a defendant’s sentence within the Guidelines range or
whether a departure from that range is warranted, “the
court may consider, without limitation, any information
concerning the background, character and conduct of
the defendant, unless otherwise prohibited by law” (em-
phasis added). As the last clause makes clear, this Guide-
line is expressly inapplicable where it is inconsistent
with a statutory minimum. Section 3553(e) provides that
courts may reduce a sentence below the statutory mini-
mum only where a reduced sentence reflects the defen-
dant’s cooperation with the government. Nothing in
§ 1B1.4 is meant to, nor can it, alter that statutory man-
No. 08-3541                                               13

date. Thomas I therefore did not err in its interpretation of
the Guidelines’ policy statements.
  Despite the clear language of the statute, Johnson next
claims that the rule from Thomas I is no longer good law
in light of United States v. Booker, 

(2005).
Because the Guidelines are no longer mandatory, Johnson
claims that a district court must always consider the
§ 3553(a) factors. But Johnson ignores that without the
statutory mandate in § 3553(e), the district court
would have no authority whatsoever to depart below
the statutory minimum in his case. See Thomas 

(“If federal law allows departure from a
statutory minimum sentence only for assistance to the
government, it does not matter whether the [Guidelines]
would allow a departure from the Guideline[s] range
in cases not involving a statutory minimum.”). It is not
the Guidelines that prohibit the court from considering
other factors, it is the statute.
   “Nothing in the reasoning of Booker expands the author-
ity of a district court to sentence below a statutory mini-
mum.” 

; see also United States
v. Cooper, 

, 856 (7th Cir. 2006) (“Notwithstand-
ing the new sentencing regime under Booker, sentencing
courts must still comply with the statutory minimum
penalty.”). We therefore join a number of circuits in
holding that, even after Booker, a court may not use the
§ 3553(a) factors to reduce a sentence below the statutory
minimum beyond what is warranted for the defendant’s
14                                                  No. 08-3541

substantial assistance.3 See, e.g., United States v. A.B., 

, 1280-83 (10th Cir. 2008); United States v. Richard-
son, 

, 159 (2d Cir. 2008); United States v.
Mangaroo, 

, 1355-56 (11th Cir. 2007); 

; United States v. Desselle, 

, 182
(5th Cir. 2006).
  Finally, Johnson argues the holding in Thomas I is no
longer valid after our decision in United States v.
Chapman, 

(7th Cir. 2008). In Chapman, the
defendants provided substantial assistance to the gov-
ernment after they were sentenced, and the government
requested a reduction in their sentences pursuant to
Federal Rule of Criminal Procedure 35(b).4 

The court granted the motion but emphasized the defen-
dants’ extensive criminal histories and imposed sen-



3
   We have previously reached this same conclusion in two
unpublished opinions. See United States v. Proctor, No. 07-2822,

, at *1 (7th Cir. May 27, 2008); United States
v. Crayton, No. 07-2862, 

, at *1 (7th Cir. Jan. 18,
2008).
4
  We question whether Chapman is binding in this case
because it involved an application of Rule 35(b) rather than
§ 3553(e); we also note that it is unclear whether a statutory
minimum sentence even applied in that case. Nonetheless,
we are mindful that Rule 35(b) and § 3553(e) “utilize the
same language to achieve the same end,” United States v. Aponte,

, 1052 (11th Cir. 1994), and we find that the
analysis in Chapman has persuasive value, see 

35(b) and § 3553(e) the same interpretation).
No. 08-3541                                               15

tences at the high end of the Guidelines. 

We upheld the district court’s analysis and held that “a
faithful and pragmatic adherence to the mandate of 18
U.S.C. § 3553(a) counsels that the nature and extent of
any reduction be determined in light of all the sen-
tencing factors set forth in the statute.” 

  Nothing in Chapman changes our analysis that § 3553(e)
limits the district court to considering only the defendant’s
substantial assistance when reducing a sentence below
the statutory minimum. Instead, Chapman stands for the
proposition that, in the context of Rule 35(b),
“after calculating the value of the defendant’s assistance to
the government, a district court may ask whether [the]
§ 3553(a) factors weigh in favor of or against granting
a reduction equivalent to that level of assistance.” United
States v. Poole, 

, 680 (7th Cir. 2008). Thus,
the district court must initially decide to what extent a
reduction is warranted based only on the defendant’s
substantial assistance to the government. But the
decision of whether to then grant a Rule 35(b) reduction
is discretionary, United States v. Shaffer, 

, 628
(7th Cir. 1993), and the court may use § 3553(a) when
determining whether a reduction is warranted. See Chap-

(“[C]ooperation cannot be assessed in
a vacuum. Whether such cooperation represents an
opportunistic attempt to obtain a sentence reduction or
a genuine alteration in the defendant’s life perspective
can best be determined by assessing that cooperation in
light of earlier criminal history and the nature of the
crime for which the defendant is presently being sen-
16                                                  No. 08-3541

tenced.”); see also United States v. Manella, 

, 204-
05 (11th Cir. 1996) (holding, in the context of Rule 35(b),
that “a reading of the rule that requires the district court
to consider substantial assistance in isolation from any
other factor leaves too little discretion for the court to
exercise.”).
  Johnson claims that this creates an unfair one-way lever,
which he calls an “absurd” reading of § 3553(e). We see
nothing fundamentally unfair or improper about this
interpretation, but regardless, Johnson’s case is not the
appropriate vehicle for challenging Chapman. This “one-
way lever” was not applied against Johnson—the district
court granted him the full reduction that his substantial
assistance warranted. This is not a case where the § 3553(a)
factors or a defendant’s criminal history were used to
grant a lesser reduction than was otherwise deserved, and
we need not decide whether Chapman was correctly
decided, nor whether its holding is even applicable to
§ 3553(e).5
  Once a court reduces a defendant’s statute below the
statutory minimum for his substantial assistance pursu-


5
   We note that at least one court has implied that granting
such a lesser reduction is impermissible. See, e.g., United States
v. Ahlers, 

, 60 (1st Cir. 2002) (“[O]nce the govern-
ment moves for a sentence below the statutory minimum
pursuant to section 3553(e), the court has discretion to sentence
below that minimum in a manner that reflects the nature
and extent of the substantial assistance provided by the defen-
dant—no more, no less.” (emphasis added)).
No. 08-3541                                             17

ant to § 3553(e), the court may not further reduce
the sentence based on other factors. Johnson’s challenge
to his sentence must therefore fail.


                    III. C ONCLUSION
  Because Johnson did not make a substantial showing
that law enforcement acted recklessly or lied intentionally
when submitting the affidavit for the search warrant, no
Franks hearing was required. In addition, § 3553(e) prohib-
ited the district court from reducing Johnson’s sentence
for any factor beyond his substantial assistance to the
government. We A FFIRM .




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