                              In the
 United States Court of Appeals
               For the Seventh Circuit
                           ____________

No. 05-2234
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                  v.

RAPHAEL McGAUGHY,
                                               Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 04 CR 908—Charles R. Norgle, Sr., Judge.
                          ____________
     ARGUED FEBRUARY 16, 2007—DECIDED MAY 11, 2007
                          ____________


 Before FLAUM, RIPPLE and ROVNER, Circuit Judges.
  RIPPLE, Circuit Judge. Raphael McGaughy was convicted
in the Northern District of Illinois of being a felon in
possession of a firearm. See 18 U.S.C. § 922(g)(1). He was
sentenced under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(1), to fifteen years’ imprisonment. He timely
appeals his conviction and sentence, contending that the
district court erred in denying his request for an eviden-
tiary hearing on a motion to suppress the evidence ob-
tained in a search of his residence and that his sentence
violates Apprendi v. New Jersey, 530 U.S. 466 (2000). For
the reasons set forth in this opinion, we affirm the judg-
ment of the district court.
2                                              No. 05-2234

                             I
                    BACKGROUND
A. The Complaint for a Search Warrant and the Search
  On July 12, 2004, Officer Patrick Cardwell executed a
complaint for a search warrant that listed an apartment
where Mr. McGaughy stayed as the premises to be
searched. In the complaint, Officer Cardwell asserted that
he had probable cause to believe that Mr. McGaughy kept
a weapon in the residence in violation of law. The com-
plaint rested principally on facts reported to Officer
Cardwell by a confidential source, “Pat Doe.” R.14, Ex.A
at 2. Doe reportedly informed the police that “within the
past seven days,” Doe had been in Mr. McGaughy’s
residence and had seen Mr. McGaughy in possession of a
rifle and a handgun. Id. According to the complaint, Doe
stated that Mr. McGaughy had indicated that the weapons
belonged to him and were used for his protection. Doe also
stated that Doe had known Mr. McGaughy to be in posses-
sion of weapons on other occasions and that Doe knew Mr.
McGaughy transported weapons in his car between the
home and another area of the city. The complaint further
attributed various innocent facts to Doe, such as a descrip-
tion of the exterior of the apartment building and the
fact that Mr. McGaughy resided there with his girlfriend.
  Officer Cardwell then made his own additional state-
ments to show police corroboration of the facts attributed
to Doe. He stated that he had observed the exterior of the
building and that it matched Doe’s description. He further
stated that he had run a registration check on a car that he
had observed parked behind the apartment building and
the check confirmed that the vehicle was registered to
Mr. McGaughy. Finally, Officer Cardwell noted that he
No. 05-2234                                                   3

had checked Illinois records and had confirmed both that
Mr. McGaughy had an aggravated battery conviction
from 1998 and that he did not possess a valid firearm
owner identification card.
  On July 12, 2004, both Officer Cardwell and Doe ap-
peared before an Illinois circuit judge to attest to the
validity of the statements in the complaint. The judge
found that there was probable cause and issued the
warrant.
  In the early morning of July 14, 2004, police executed
the warrant at the apartment of Mary Dotson, Mr.
McGaughy’s girlfriend, where he had been staying. Police
found Mr. McGaughy and Dotson in bed and, after asking
both to make their hands visible and leave the bed, found
a gun under Mr. McGaughy’s pillow. The officers also
found a second gun in a laundry basket.
  Following the search, Mr. McGaughy was arrested and
eventually was charged by a federal grand jury with being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1).


B. District Court Proceedings
  Before trial, Mr. McGaughy filed a motion to suppress
the evidence seized in the search; he contended that the
informant’s statements, which provided the substance of
the complaint, did not establish probable cause as that
standard is described in Illinois v. Gates, 462 U.S. 213 (1983).
Specifically, he claimed that it was error to credit Doe’s
assertions without a basis in the complaint for determin-
ing Doe’s reliability, veracity or the basis for Doe’s knowl-
edge. He also claimed that the information provided by
4                                                 No. 05-2234

Doe was stale, relating to possession of a gun up to 16 days
prior to the execution of the complaint. Finally, he claimed
that the Leon good-faith exception did not apply because
the complaint was “so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable.” R.14 at 10 (citing United States v. Leon, 468
U.S. 897, 918 (1984)). He asked that the evidence be sup-
pressed or, in the alternative, that an evidentiary hearing
be granted “to resolve any evidentiary issues.” Id. at 11. He
did not endeavor to identify further any material factual
dispute.
  In reply, Mr. McGaughy contended that there were
material omissions in the application that tainted its
validity. Specifically, he noted again that the complaint
contained no information about Doe, but also alleged that
Officer Cardwell had omitted information about a “his-
tory” between Officer Cardwell and Mr. McGaughy. Mr.
McGaughy contended that, at some point in the past, he
had been charged with either resisting arrest or battery of
a police officer in relation to an incident in which he
allegedly had thrown a bottle at Officer Cardwell. R.18 at
6; Appellant’s Br. at 6. Mr. McGaughy stated that the
issuing judge “would certainly [have been] interested in
knowing” of the “potential bias on the part of the com-
plainant” before making the probable cause determina-
tion. R.18 at 6.1



1
   Although Mr. McGaughy did not raise his contention regard-
ing the possible bias of Officer Cardwell in his opening brief
before the district court, both parties address this argument on
its merits in this appeal; the Government has not suggested
that it is waived. We therefore shall address it in substance.
No. 05-2234                                                   5

  The district court heard argument on the motion to
suppress. Counsel for Mr. McGaughy focused on Mr.
McGaughy’s claim that the issuing judge had erred in
determining that the facts of the complaint established
probable cause, rather than on any contention that an
outstanding factual dispute had to be resolved before the
probable cause determination could be assessed.2 At one
point, the Government noted, “in addition, your
Honor—and I don’t know if we need to address this or not—but
the [G]overnment does not believe that a hearing is neces-
sary. If you’d like me to address that, I can. Or we can jump
off that bridge when we get to it.” Tr. at 17-18 (Jan. 21,
2005) (emphasis added). When the court asked for Mr.
McGaughy’s reply, counsel did not contend specifically
that there were disputed issues of fact requiring a hearing.
Instead, she contended again that Officer Cardwell’s
corroboration was insufficient to overcome the absence
of information about the informant’s credibility and that
the information was stale. She did not raise any issue
regarding the allegations of bias of Officer Cardwell. She
did not restate the request for an evidentiary hearing, but
asked the court to “grant the motion and suppress the
weapons.” Id. at 23.
  Following argument, the district court ruled that the
issuing state judge had a substantial basis for conclud-
ing that the warrant was supported by probable cause. Id.
at 23. The court stated that the officers took appropriate
steps to corroborate as much information of the confiden-


2
   Counsel for Mr. McGaughy specifically asserted that he
raised two challenges to the probable cause determination, lack
of corroboration of the informant and staleness. See Tr. at 3, 8
(Jan. 21, 2005).
6                                               No. 05-2234

tial informant as they could and that any delay in seek-
ing the warrant was reasonable in light of these attempts
to corroborate. The court found significant that the war-
rant specified that the confidential informant had ob-
served personally the weapons in the apartment and, by
virtue of the detail regarding the movement of the weap-
ons, clearly “had some knowledge of the defendant and
the circumstances under which he lived.” Id. at 26. The
court made no specific ruling on the issue of an evidentiary
hearing.
  Mr. McGaughy subsequently was convicted in a jury
trial. The presentence report included information regard-
ing his prior violent felony convictions; on the basis of
those convictions, the trial court sentenced him to the
minimum fifteen-year sentence prescribed by the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(1). Mr. McGaughy
contended that Apprendi v. New Jersey, 530 U.S. 466 (2000),
required the fact of his prior convictions that resulted in a
recidivism enhancement to have been found by a jury
beyond a reasonable doubt. The court rejected his argu-
ment.


                             II
                      DISCUSSION
A. Denial of an Evidentiary Hearing
  Mr. McGaughy contends that the district court erred in
denying an evidentiary hearing on his motion to suppress.
In this court, Mr. McGaughy does not challenge directly
the probable cause determination or the applicability of
the good faith exception as he did in the district court;
instead, he focuses on whether the motion should have
No. 05-2234                                                    7

been decided without first conducting an evidentiary
hearing.
  We review a district court’s denial of an evidentiary
hearing on a motion to suppress for an abuse of discretion.
United States v. Juarez, 454 F.3d 717, 719 (7th Cir. 2006).
Evidentiary hearings are not required as a matter of
course; a district court need conduct a hearing only
    when the allegations and moving papers are suffi-
    ciently definite, specific, non-conjectural and detailed
    enough to conclude that a substantial claim is pre-
    sented and that there are disputed issues of material
    fact which will affect the outcome of the motion.
United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004); see
also Juarez, 454 F.3d at 720; United States v. Martin, 422 F.3d
597, 602-03 (7th Cir. 2005), cert. denied, 74 U.S.L.W. 3424
(Jan. 23, 2006) (No. 05-8234). We have emphasized the
necessity of materiality in any factual disputes that are
presented to the district court as a predicate for an eviden-
tiary hearing. Villegas, 388 F.3d at 324; Juarez, 454 F.3d
at 720; United States v. Berkowitz, 927 F.2d 1376, 1385 (7th
Cir. 1991).
  Mr. McGaughy’s briefing and argument on the motion to
suppress do not identify any specific “material factual
dispute” requiring resolution through an evidentiary
hearing. In the district court, Mr. McGaughy did claim the
information from Doe was up to two weeks old and
therefore stale, and, on reply, added his claims that per-
sonal bias motivated the complaining officer in seeking
the warrant. Mr. McGaughy did not make any serious
effort to articulate what facts had to be adduced at an
evidentiary hearing to inform the court’s analysis; further-
more, Mr. McGaughy did not articulate in what manner
8                                                     No. 05-2234

the district court’s ultimate determination of probable
cause would have been different if his version of the
facts were accepted. See Juarez, 454 F.3d at 720.
  Our precedent places the onus on a defendant seeking
an evidentiary hearing to “specifically . . . allege[ ] a definite
disputed factual issue,” Martin, 422 F.3d at 603 (emphasis
added), and to demonstrate its materiality, Juarez, 454 F.3d
at 720. We conclude that Mr. McGaughy has not met this
burden.
  With respect to the age of the information, the district
court explicitly considered whether any delay caused
Doe’s information to become stale. The district court
concluded that the complaint alleged possession of fire-
arms, an ongoing criminal activity, that was likely to
persist beyond the day the information was passed from
Doe to the police. Indeed, the district court took the
view that any delay demonstrated that the officer had
taken the prudent course in attempting some corrobora-
tion before producing a complaint.
  With respect to the question of potential bias, Mr.
McGaughy’s conclusory allegation that a history with the
complaining officer should have been presented to the
issuing judge also does not create a material issue of fact.3



3
  Neither on appeal nor before the district court did Mr.
McGaughy claim that the omission of the history information
raised a Franks issue. See Franks v. Delaware, 438 U.S. 154 (1978);
United States v. Harris, 464 F.3d 733 (7th Cir. 2006). Franks and its
progeny entitle a defendant to a hearing on the veracity of an
affidavit supporting a request for a search warrant when the
defendant
                                                      (continued...)
No. 05-2234                                                       9

Officer Cardwell’s personal contributions to the factual
statements in the complaint were simply that Mr.
McGaughy was a felon without a valid firearm permit who
parked his car outside a particular apartment building. Mr.
McGaughy does not allege that bias tainted any of these
facts. Moreover, it is nothing more than speculation to
suggest that any bias on the part of Officer Cardwell
tainted the factual statements attributed to Doe. Doe swore
out an affidavit and attested to the veracity of those
statements before an Illinois circuit judge. The issuing
judge was in a position to assess the credibility and verac-
ity of both persons and to make his probable cause deter-
mination with that additional evidence before him. See
United States v. Koerth, 312 F.3d 862, 866 (7th Cir. 2002)
(noting that, whether “the informant personally appeared
and presented an affidavit or testified before the magis-
trate, thus allowing the judge to evaluate the informant’s
knowledge, demeanor, and sincerity” is an important
factor in determining whether probable cause is established


3
    (...continued)
       makes a substantial preliminary showing that a false
       statement knowingly and intentionally, or with reckless
       disregard for the truth, was included by the affiant in the
       warrant affidavit, and if the allegedly false statement is
       necessary to the finding of probable cause. . . .
Franks, 438 U.S. at 155-56; see also Zambrella v. United States, 327
F.3d 634, 638 (7th Cir. 2003). We have acknowledged that the
same rationale applies to substantiated allegations that the
affidavit contains intentional or reckless omissions of facts,
which, if included, would have rendered the affidavit lacking
in probable cause. United States v. Williams, 737 F.2d 594, 604 &
n.6 (7th Cir. 1984). This is not the claim Mr. McGaughy has
made, nor the type of remedy he has requested.
10                                                No. 05-2234

on the basis of an informant’s tip). Under these circum-
stances, the bald suggestion of bias is insufficient to
establish a factual dispute that is material to the prob-
able cause determination.
  We perceive no abuse of discretion on the part of the
district court in deciding the constitutionality of the
search without first holding an evidentiary hearing.
Accordingly, we deny relief to Mr. McGaughy on the basis
of the only substantial claim placed before this court.
  We note that Mr. McGaughy raises only the absence of an
evidentiary hearing to this court. We therefore have no
occasion to pass upon the validity of the warrant given the
contentions actually pressed on appeal; we express no
opinion on the merits of that claim.


B. Apprendi and the Armed Career Criminal Act
  Finally, Mr. McGaughy submits that Apprendi v. New
Jersey, 530 U.S. 466 (2000), requires a jury to have found
the fact of his prior convictions, which serve as the predi-
cate for a recidivism enhancement, beyond a reasonable
doubt. Mr. McGaughy acknowledges that this court is
without authority to decide this issue in his favor because
the governing law of the Supreme Court, which this
court is bound to follow, states that the fact of a prior
conviction need not be found by a jury beyond a reasonable
doubt. Almendarez-Torres v. United States, 523 U.S. 224, 246-
47 (1998). Apprendi specifically preserved Almendarez-
Torres, see 530 U.S. at 488-90 (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.”) (emphasis added). Accordingly, given the govern-
No. 05-2234                                            11

ing precedent, we cannot accept Mr. McGaughy’s claim
that the failure to submit this issue to the jury con-
stitutes reversible error.


                     Conclusion
  Accordingly, the judgment of the district court is
affirmed.
                                               AFFIRMED

A true Copy:
       Teste:

                       _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                 USCA-02-C-0072—5-11-07
