In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1079, 09-1276 & 09-1308
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K ATRICE E TCHIN , A LBERT M. C OLE, and
M AURICE B OWMAN,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 07-CR-139-C-03, 07-CR-139-C-02 &
07-CR-139-C-01—Barbara B. Crabb, Judge.
A RGUED S EPTEMBER 16, 2009—D ECIDED A UGUST 4, 2010
Before C UDAHY, W OOD , and S YKES, Circuit Judges.
W OOD , Circuit Judge. Maurice Bowman, Albert Cole,
and Katrice Etchin pleaded guilty to drug crimes after
participating in an operation run by Bowman that sup-
plied crack cocaine to street dealers in Madison, Wiscon-
sin. On appeal, Bowman and Etchin challenge the lower
court’s decision to admit evidence, including 150 grams
2 Nos. 09-1079, 09-1276 & 09-1308
of crack, discovered in a search of Etchin’s apartment.
In addition, all three contest their sentences.
When police officers knocked on Etchin’s door, she told
them they could not come in without a warrant. The
police entered anyway, securing the area to preserve
the status quo while another officer applied for a search
warrant. It was not until four hours later, with warrant
in hand, that the police searched Etchin’s apartment
and discovered drugs. We do not doubt that the officers’
warrantless entry violated the Fourth Amendment, but
the Supreme Court has explained that our analysis
cannot end there. Segura v. United States, 468 U.S. 796
(1984). Probable cause to search Etchin’s apartment
existed when the officers entered, and so the temporary
seizure of Etchin’s home did not create any incremental
violation of the Constitution, above and beyond the
problem with the initial entry. Because the officers’
search relied on a later-arriving warrant that was based
on information sufficiently unrelated to the initial entry,
the evidence discovered in Etchin’s apartment was un-
tainted by the officers’ illegal behavior. We therefore
conclude that the district court properly denied the de-
fendants’ motions to suppress and, finding no error in
the sentences imposed, we affirm.
I
For a decade, Bowman distributed crack to a revolving
cast of street dealers who sold his product between their
stints in jail. Etchin, who had a child with Bowman,
allowed Bowman to use her apartment for storage and to
Nos. 09-1079, 09-1276 & 09-1308 3
conduct deals. In 2004 Cole joined the team as a cook,
responsible for turning Bowman’s powder cocaine into
crack before it was sold. By 2006 law enforcement officials
had taken an interest in Bowman, and they began to
interview associates of his who were now behind bars.
A break in the case came on the evening of October 2,
2007, when police stopped Terrell Banks, Bowman’s new
recruit, as he was driving through Madison with his
girlfriend. As a result of the stop, Banks and his girl-
friend gave the police permission to search their home.
A group of officers took Banks’s girlfriend back to the
apartment where she and Banks lived and discovered
more than five grams of crack. Meanwhile, Banks
stayed behind and Detective Steve Wegner began to
question him in the back of a squad car.
Before Banks learned that police had discovered drugs
at his apartment, he told Detective Wegner that he had
sold the last of his supply of drugs, and he named “Chico”
as the person who had supplied him drugs in the past.
As the interview progressed, Banks realized he was in
trouble. Perhaps because he was on supervised release
at the time, Banks changed his tune and told Detective
Wegner everything he knew: he named Bowman as his
source and explained that the crack found in his apart-
ment was left over from a batch he purchased from Bow-
man two days earlier; he admitted that he had gotten
crack from Bowman four times in the preceding two
months; he described how the transactions took place in
Etchin’s apartment at 5834 Russett Road in Madison (he
did not know her name or the precise address at the
time) with both Etchin and Bowman present; and he
4 Nos. 09-1079, 09-1276 & 09-1308
explained that Bowman stored drugs in a Crown Royal
bag that was hidden with a scale either in Etchin’s bath-
room or in a cupboard above her kitchen stove.
Detective Wegner drove Banks to Russett Road to verify
his story, and Banks pointed out Etchin’s apartment. A
database check on Bowman returned two warrants, one
related to a child support claim filed by Etchin that listed
5834 Russett Road as the address. Detective Wegner
also obtained mug shots of Bowman and Etchin, and
Banks confirmed that they were his sources. Just before
midnight, Detective Wegner orchestrated a phone call
between Banks and Bowman in an ultimately unsuc-
cessful attempt to coax Bowman into a meeting. As the
investigation progressed, Detective Dorothy Rietzler
and another Madison police officer traveled to the
Russett Road address to investigate. They confirmed
that Etchin lived in the apartment that Banks had iden-
tified and relayed that information to Detective Wegner,
who concluded that there was enough evidence to
apply for a search warrant. As Detective Wegner got
to work on a warrant application, Detective Reitzler
decided it was best to secure the apartment. She later
reported that she heard male and female voices inside
Etchin’s house and, around 11:30 p.m., she decided to
knock on the front door to ask for permission to enter.
Etchin appeared at the door and Reitzler identified
herself. When Etchin refused her entry without a war-
rant, Detective Reitzler and other officers hiding nearby
ignored Etchin’s wishes and forced their way in, telling
Etchin that they intended to secure the apartment until
a warrant arrived. While there was marijuana lying in
Nos. 09-1079, 09-1276 & 09-1308 5
plain view, the officers did not search the home. In-
stead, they waited while Detective Wegner prepared an
affidavit recounting the investigation up to that point.
Four hours after the officers had entered Etchin’s apart-
ment, a state judge signed a search warrant. At 3:30 a.m.,
warrant in hand, officers executed the warrant and found
150 grams of crack in a jacket, a digital scale in the cup-
board above the kitchen stove, and marijuana in a
number of places around Etchin’s apartment.
Etchin and Bowman filed motions to suppress the
evidence. The district court, adopting a magistrate
judge’s recommendation, denied the motions. Etchin
then pleaded guilty to maintaining a drug house, 21 U.S.C.
§ 856(a)(2), and Bowman to possessing with the intent
to distribute crack cocaine, 21 U.S.C. § 841(a)(1), both
preserving their right to appeal the denial of their
motions to suppress. Cole, who did not file a motion to
suppress, pleaded guilty to the same crime as Etchin. The
district court sentenced Bowman and Etchin to terms
of 360 and 46 months, at the very bottom of the ranges
recommended by the U.S. Sentencing Guidelines. Cole
received the statutory maximum 240 months, a term
below the range that the guidelines would otherwise
have advised. The defendants appealed.
II
We turn first to Bowman and Etchin’s challenge to
the denial of their motions to suppress the evidence
found in Etchin’s apartment. Our review of the district
court’s legal conclusions is de novo, and we use the clear
6 Nos. 09-1079, 09-1276 & 09-1308
error standard for its findings of fact. United States v.
Dowthard, 500 F.3d 567, 568-69 (7th Cir. 2007). At the
outset, we note that the government does not dispute
the fact that Bowman had an expectation of privacy in
Etchin’s home, and because we conclude in the end
that suppression is not warranted, we too treat Etchin
and Bowman as though they have equivalent Fourth
Amendment interests in Etchin’s apartment.
A
The sanctity of the home is a central concern of the
Fourth Amendment. It is therefore “a basic principle
of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980)
(internal quotation marks omitted). But when there is
an emergency, in so-called “exigent circumstances,” the
police may enter and search a home without securing
a warrant. Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984).
The first step in our analysis is to consider whether
the initial entry of the officers into Etchin’s apartment
was in response to exigent circumstances. We conclude
that it was not.
Magistrate Judge Crocker found that “it was rea-
sonable and prudent for the police to enter [Etchin’s]
apartment” in light of “genuine concerns that Banks’s
cooperation already was known on the streets, and Banks
had reached out to Bowman that evening.” In Judge
Crocker’s view, Reitzler’s failed effort to get Etchin’s
consent to search “let the cat out of the bag” (we para-
Nos. 09-1079, 09-1276 & 09-1308 7
phrase slightly), which required officers to enter or else
risk that evidence would be destroyed. The govern-
ment has endorsed the position that exigent circum-
stances supported the officers’ entry, relying on our
decision in United States v. Collins, 510 F.3d 697 (7th Cir.
2007).
In Collins, we acknowledged that police are free to
approach a home and knock on a door, and we stressed
that doing so may sometimes give rise to an emergency
that justifies a warrantless entry into the home. 510 F.3d
at 700. We realized that there is a risk of the police’s
“manufacturing” exigent circumstances, in the sense
that their presence is what leads to the urgency of the
need to enter, but this possibility, like practically every-
thing else in the Fourth Amendment area, must be
assessed case-by-case. We continued, “[I]f police hear a
crime being committed within a house (and spoilation
of evidence is a crime), then they can enter immedi-
ately . . . ; if they do not hear a crime (more precisely,
if they do not have probable cause to believe a crime
is in progress), they have to get a warrant.” Id. at
701. Police who without a warrant knock on the door of
a drug house seeking consent to enter take the risk that
permission will be withheld and an emergency will not
materialize. Where an occupant turns the police away
or asks to see a warrant, the officer cannot, without
some other suspicious activity, justify a warrantless
entry based solely on the fear that evidence might be
destroyed. United States v. Ellis, 499 F.3d 686, 692 (7th Cir.
2007). If “[a] mere possibility that evidence will be de-
stroyed” were enough, then “the requirement of a war-
8 Nos. 09-1079, 09-1276 & 09-1308
rant would have little meaning in the investigation of
drug crimes.” United States v. Salgado, 807 F.2d 603 (7th
Cir. 1986). Our cases reflect the rule that an emergency
justifying entry and a search arises only if the officer
knocking at the door observes objective evidence that
there is an ongoing crime within that must be stopped
before it is completed. The sound of someone walking
around, for example, or a voice that announces, “The cops
are here,” is not enough by itself. But other sights and
sounds—toilets flushing, a door slammed, people
running, an obvious lie by the person answering the
door, or efforts to remove contraband from the
house—may be evidence that there is an emergency that
calls for an immediate, warrantless intrusion. E.g.,
United States v. Amaral-Estrada, 509 F.3d 820, 828-29
(7th Cir. 2007); United States v. Rivera, 248 F.3d 677, 680-81
(7th Cir. 2001).
Detective Rietzler did not see or hear anything to
suggest that an emergency was taking place inside of
Etchin’s apartment. The worst that seems to have hap-
pened, according to the government, is that Etchin
“reacted belligerently” when Detective Rietzler asked
permission to enter. Putting aside the question whether
a belligerent reaction to police interruption late in the
evening reveals anything but the occupant’s annoyance
at being bothered, Detective Rietzler’s own police report
squarely contradicts the government’s view of the
events. Detective Rietzler relates that when she asked
for Etchin’s consent to enter, “[Etchin] was insistent we
could not come into her residence unless we had a war-
rant.” Detective Rietzler then lists as reasons for entering
Nos. 09-1079, 09-1276 & 09-1308 9
that she heard a man’s voice inside, that she thought
the man might be Bowman, and that she feared that
evidence might be destroyed. This is too vague to justify
a finding that there was an ongoing crime in the house
requiring immediate entry. We proceed, therefore, on the
basis that Detective Reitzler and others violated the
Fourth Amendment when they entered Etchin’s apart-
ment without a warrant.
B
The fact that police behaved illegally does not mean
that the remedy of excluding evidence is necessarily
appropriate. Herring v. United States, 129 S. Ct. 695 (2009).
In this case, a straight-forward application of Segura
leads us to two conclusions: first, Detective Reitzler’s four-
hour occupation of Etchin’s apartment did not add any-
thing to the violation of the Fourth Amendment that
had already occurred with the entry; and second, the
drugs later found were admissible.
1. The Seizure of Etchin’s Apartment. Segura holds that
officers who enter and seize a home to preserve the
status quo while waiting for a search warrant do not
commit an independently sanctionable violation of the
Fourth Amendment as long as they had probable cause
at the moment of entry and the seizure is not unrea-
sonably long. 468 U.S. at 798. The Court reasoned that
“the home is sacred in Fourth Amendment terms not
primarily because of the occupants’ possessory interests
in the premises, but because of their privacy interests in
the activities that take place within,” and so a police
10 Nos. 09-1079, 09-1276 & 09-1308
occupation (which infringes on possession) is permitted
even when a search (which implicates privacy interests)
would be unreasonable. Id. at 810. The second of the
Court’s concerns—duration—is not at issue here, as the
seizure here was shorter than the one upheld in Segura.
We therefore focus exclusively on the question whether
the probable cause criterion was satisfied.
Before considering whether Detective Reitzler had
probable cause to seize Etchin’s home, we must clarify
how the Court was using this concept in Segura. There,
it was looking at the question whether there was
probable cause to support a warrant to search the
premises; it was not concerned with the question
whether there was probable cause to support a finding of
exigent circumstances. Id. at 810 (“[A]gents had abundant
probable cause in advance of their entry to believe that
there was a criminal drug operation being carried on in
petitioner’s apartment.”).
A comparison will help to illustrate the distinction. If
the police come across evidence of an ongoing violation
of the Endangered Species Act committed by a man who
has displayed an African cheetah pelt on the wall of his
home, see United States v. Winnie, 97 F.3d 975 (7th Cir.
1996), officers may have probable cause to support a
search warrant and thus a seizure of the premises under
Segura (that is, they may act to secure the premises and
occupants and wait for the warrant before searching),
but there is no emergency requiring immediate entry.
On the other hand, when police observe from the street
an ongoing brawl inside of a home, see Brigham City,
Nos. 09-1079, 09-1276 & 09-1308 11
Utah v. Stuart, 547 U.S. 398 (2006), they have probable
cause to believe not only that a crime is in progress but
that it must be stopped immediately—i.e., that an exigency
justifies entering and searching the home without a
warrant. Our concern is with the first of those scenarios.
Segura itself drew a clear line between cases involving
exigent circumstances and those involving a temporary
seizure of premises supported by probable cause. The
Court noted that the district court there had found that
there were no exigent circumstances. Accepting that
finding, the Court expressed its holding in Segura as
follows:
[W]here officers, having probable cause, enter prem-
ises, and with probable cause, arrest the occu-
pants who have legitimate possessory interests in
its contents and take them into custody and, for no
more than the period here involved, secure the prem-
ises from within to preserve the status quo while
others, in good faith, are in the process of obtaining
a warrant, they do not violate the Fourth Amend-
ment’s proscription against unreasonable seizures.
468 U.S. at 798. See also United States v. Alexander, 573
F.3d 465, 476 (7th Cir. 2009) (noting that “[t]he presence
(or not) of exigent circumstances . . . is beside the point” in
a Segura analysis). The defendants are thus incorrect
insofar as they argue that Segura permits the seizure of
a home only in an emergency.
Turning to the question whether probable cause existed
in this case, we consider first whether Detective Reitzler
and the other officers had probable cause to believe that
12 Nos. 09-1079, 09-1276 & 09-1308
they would discover evidence of a crime in Etchin’s
apartment at the moment that they knocked on her door.
This would be enough, under Segura, to justify the seizure
of the apartment, despite the fact that Etchin voiced an
objection to their entry. Strictly speaking, the question
whether the police presented enough evidence to the
state judge who issued the warrant to support probable
cause is a separate inquiry.
Probable cause to search a place exists when, based on
all of the circumstances, a reasonably prudent person
would be persuaded that evidence of a crime will be
found there. Ornelas v. United States, 517 U.S. 690, 696
(1996); Illinois v. Gates, 462 U.S. 213, 238 (1983). When
an informant such as Banks supplies the basis for
probable cause we consider, among other things,
whether police have corroborated the informant’s state-
ments; the degree to which the informant’s knowledge
is based on firsthand observation; the detail provided;
and the interval between the events described and the
application for a search warrant. United States v. Farmer,
543 F.3d 363, 377 (7th Cir. 2008). This is not a checklist;
indeed, anything like that would be inconsistent with the
totality-of-circumstances approach that the Supreme
Court endorsed in Gates. Other facts might prove helpful
in a different case, and there is nothing necessarily wrong
if one of these common factors is weak or nonexistent. See
United States v. Carson, 582 F.3d 827, 832 (7th Cir. 2009).
Normally, we give little weight to conclusory statements
of an unknown informant, but in some cases even those
statements may contribute to the mix, if there is sup-
porting factual information or we are given some other
Nos. 09-1079, 09-1276 & 09-1308 13
reason to believe that the informant’s statements are
reliable. United States v. Koerth, 312 F.3d 862, 867-68
(7th Cir. 2002).
Detective Wegner swore that he believed the informa-
tion he obtained from Banks was “truthful and reliable
in that it was obtained against his penal interests.”
The defendants contest this characterization, saying that
Banks was acting in his own interest when he turned
on them. The truth probably lies somewhere in the
middle. Banks admitted that he bought significant quan-
tities of crack from Bowman on several occasions, but
most of his conversation with Detective Wegner focused
on the bad acts of Bowman and Etchin and not his own
misdeeds. The degree to which Banks was speaking
against his own penal interest is debatable, and thus this
may not be the best reason to credit his statements.
But even if we had a stronger reason to doubt Banks’s
motives, probable cause rests on the totality of circum-
stances, and Banks’s “explicit and detailed description
of alleged wrongdoing, along with a statement that the
event was observed first-hand, entitles his tip to greater
weight than might otherwise be the case.” Gates, 462 U.S.
at 234. Banks told police that Bowman and Etchin had
a child; he knew that Bowman stored crack in a Crown
Royal bag at Etchin’s house and kept a scale inside the
kitchen cupboard; and he described four visits to the
apartment during which he bought drugs. The most
recent purchase had taken place just a couple of days
earlier. In addition, police corroborated Banks’s story
by having Banks point out Etchin’s house from their
14 Nos. 09-1079, 09-1276 & 09-1308
cruiser, having him identify photos, determining that
Etchin actually lived in the apartment, and verifying that
Bowman was wanted on a warrant for support pay-
ments related to the child he had with Etchin. Contrary
to the defendants’ suggestion, Banks’s arranged call to
Bowman increased the reliability of his story by estab-
lishing that the two knew one another, even if Banks
was ultimately unable to set up a drug deal. Though
Banks initially lied to the police and had a lengthy
criminal record, the information he provided before the
officer’s entry supplied probable cause to believe drugs
would be found in Etchin’s house. Accordingly, the
seizure of Etchin’s home did not violate the Fourth
Amendment, and the search warrant was also sup-
ported by probable cause.
2. The Search of Etchin’s Apartment. With that estab-
lished, we are ready to consider whether the evidence
discovered when the officers executed the warrant must
be excluded as illegal “fruit” of their initial unlawful
entry. Segura helps here, too. It holds that when a later-
arriving warrant is based on information “wholly uncon-
nected” to the illegal entry, evidence discovered during
the search is admissible because its discovery is based on
an independent source. Segura, 468 U.S. at 813-16; see
also Silverthorne Lumber Co. v. United States, 251 U.S. 385
(1920). The Supreme Court has used this “wholly uncon-
nected” language repeatedly. E.g., Hudson v. Michigan, 547
U.S. 586, 600 (2006); Murray v. United States, 487 U.S. 533,
535 (1988). Although the language sounds broad, we
have not read it as an inflexible rule that any information
(no matter how trivial) obtained during an illegal entry
Nos. 09-1079, 09-1276 & 09-1308 15
and included in a warrant application taints the subse-
quent search. United States v. Markling, 7 F.3d 1309, 1315-18
(7th Cir. 1993). Such a holding would be inconsistent
with the related “inevitable discovery doctrine.” See United
States v. Tejada, 524 F.3d 809, 812-13 (7th Cir. 2008). Segura
instead focused on the fact that “[n]o information
obtained during the initial entry or occupation of the
apartment was needed or used by the agents to secure the
warrant.” 468 U.S. at 814 (emphasis added). This sug-
gests two lines of inquiry: first, we ask whether any
illegally obtained information affected the judicial
officer’s decision to issue a warrant, cf. Franks v. Delaware,
438 U.S. 154, 171-72 (1978); and second, we consider
whether the police officers’ decision to seek a warrant was
prompted by anything that was discovered during the
illegal entry, Markling, 7 F.3d at 1315-16.
The inquiry is fact-specific. In the case before us, the
record strongly supports the district court’s conclusion
that “agents always intended to obtain a warrant” and
“the warrant would have issued even in the absence of
information gleaned from the entry into Etchin’s apart-
ment.” Investigators had long focused on Bowman.
Their questioning of Banks on the evening of October 2,
2007, led them to believe that Etchin’s apartment was a
place where at least some of Bowman’s illegal activities
were taking place. Detective Reitzler reported that once
she verified that Etchin lived in the place that Banks
identified, Detective Wegner concluded there was
enough information for a warrant, and he set to work on
an affidavit. It is difficult to see how marijuana or any-
thing else in plain sight inside of Etchin’s apartment was
16 Nos. 09-1079, 09-1276 & 09-1308
necessary to confirm the officers’ view that they had
indeed found the right place. The fact that Detective
Reitzler thought she might get Etchin’s permission to
enter while Detective Wegner worked on his warrant ap-
plication does not cast any doubt on Detective Wegner’s
earlier-expressed intent to secure a warrant.
In addition, the information that was obtained in the
illegal entry and then mentioned in Detective Wegner’s
affidavit was not necessary to the determination that
probable cause supported the warrant. The single para-
graph of Detective Wegner’s affidavit that could be seen
as problematic explains that Etchin refused to consent to
a search of her home, that officers entered “to prevent
the destruction of evidence,” that there were several
children in the house, that Etchin confirmed one child
was Bowman’s, and that “[o]fficers found the apartment
layout to be the same as [Banks] had described.” The bulk
of the affidavit recounts information provided by Banks,
which we have already described, explaining Bowman’s
activities and the possibility that crack cocaine would be
found in the house. That the layout of the apartment’s
interior happened to support Banks’s story was not an
essential factor in the probable cause analysis, particularly
when one considers the other efforts to corroborate the
information that Banks provided. See Brock v. United States,
573 F.3d 497, 502 (7th Cir. 2009) (“The heart of [the] ques-
tion is whether, taking away any illegally obtained infor-
mation, the affidavit still demonstrated probable cause.”).
We would have a much different case if, for example,
Detective Wegner’s affidavit revealed that Detective
Reitzler observed marijuana in plain view. But that infor-
Nos. 09-1079, 09-1276 & 09-1308 17
mation was correctly excluded from the warrant affidavit
and the probable cause analysis. Accordingly, the link
between the initial entry and the later-discovered evidence
“was sufficiently attenuated to dissipate the taint” of the
illegal search, Segura, 468 U.S. at 815, and we conclude
that evidence discovered was admissible.
It follows from this conclusion that the marijuana
observed at the time of the illegal entry was also properly
admitted. See Murray, 487 U.S. at 537-41; Salgado, 807
F.2d at 608. Given our conclusion that the evidence is
admissible under Segura, we have no need to reach the
government’s alternative arguments that the police
relied in good faith on a facially valid warrant, United
States v. Leon, 468 U.S. 897 (1984), and that exclusion
would be a disproportionate remedy, Herring, 129 S. Ct.
at 695.
III
We turn now to three challenges that the defendants
present to their sentences. None gets off the ground.
A
Bowman and Cole argue that their sentences were
based on exaggerated drug quantities. Following a two-
day sentencing hearing, the district judge determined
that Bowman was responsible for more than 4.5 kilograms
of crack and that Cole was responsible for just over two
kilograms. We review these findings for clear error. United
18 Nos. 09-1079, 09-1276 & 09-1308
States v. Barnes, 602 F.3d 790 (7th Cir. 2010). Bowman and
Cole argue that these quantities are based entirely on
the testimony of unreliable government witnesses. They
point out that the witnesses were to receive lower sen-
tences for testimony favorable to the government, and
so they had a motive to lie about their past dealings
with Bowman and Cole. A drug-quantity finding at
sentencing must be supported by information that pos-
sesses sufficient indicia of reliability, United States v.
Johnson, 227 F.3d 807, 813 (7th Cir. 2000), and a guidelines
range based on false evidence can certainly constitute
clear error, United States v. Salinas, 365 F.3d 582, 586-87 (7th
Cir. 2004). But where a sentencing challenge boils down
to a credibility decision, as this one does, our review is
especially deferential to the district judge’s assessment
of the testimony. United States v. Acosta, 534 F.3d 574, 584
(7th Cir. 2008); United States v. House, 110 F.3d 1281, 1285-
86 (7th Cir. 1997).
In 2006, when investigators began to ask questions
about Bowman of various people who themselves had
been arrested, several volunteered statements that were
used to calculate drug quantities included in the defen-
dants’ Presentence Investigation Reports (“PSR”). Four of
these witnesses—Demonterryo Black, Timothy Hampton,
Joseph Thigpen, and James Wilder—agreed to testify
against Bowman and Cole at sentencing about their
activities in the preceding decade. Hampton said he
bought an average of 63 grams of crack per week from
Bowman over a two-year period, and he testified that
he traveled with Bowman to Chicago to buy drugs
dozens of times. Black added that he worked with
Nos. 09-1079, 09-1276 & 09-1308 19
Bowman to unload 100 to 250 grams per week for a
period of time, and Thigpen explained that he and Bow-
man pooled money to buy between six and 10 kilograms
of powder cocaine, which they turned into crack. All
four witnesses confirmed that Cole cooked Bowman’s
crack, and all said they had seen Cole in action. During
cross-examination, Bowman and Cole highlighted the
witnesses’ lengthy criminal records, their past gang
activities, and the personal gain each sought by testi-
fying. Bowman and Cole also called three witnesses
of their own who all denied that they had ever seen
Bowman and Cole involved with drugs. Finally, Bowman
took the stand to contest nearly everything the govern-
ment witnesses said.
Recognizing that the government witnesses had “very
strong reasons to say what they do,” the district court
nonetheless found their testimony credible. The judge
observed that they made “good sense” and corroborated
one another. Meanwhile, the judge thought that
Bowman’s story was “so implausible that it border[ed] on
being contemptuous.” Bowman and Cole have offered no
reason to doubt this credibility determination. While
witnesses’ motives are important, we have stressed that
their reasons for taking the stand “ ‘do not render their
testimony inherently unreliable.’ ” House, 110 F.3d at 1285
(quoting United States v. Garcia, 66 F.3d 581, 587 (7th Cir.
1995)). Nor is it a requirement that a biased witness’s
testimony be corroborated by other evidence, United
States v. Mendoza, 576 F.3d 711, 718 (7th Cir. 2009), though
in this case the district court reasonably concluded
that the government witnesses corroborated one another.
20 Nos. 09-1079, 09-1276 & 09-1308
Finally, the fact that Black, Hampton, Thigpen, and Wilder
were unsavory characters is of no importance at this stage.
The district court’s conservative conclusions that Bow-
man distributed “well in excess of 4.5 kilograms”
over 15 years and that Cole’s limited role meant he was
responsible for less than half that amount were sup-
ported by a consistent narrative delivered by four
separate witnesses who had detailed knowledge of the
defendants’ activities. The district court was entitled to
credit that testimony, and its drug-quantity findings
were well-supported.
B
Bowman and Cole also contest the district court’s
decision to deny them offense-level reductions under
U.S.S.G. § 3E1.1, which provides a break to a defendant
who “clearly demonstrates acceptance of responsibility
for his offense.” Again, the district judge is in the best
position “to assess whether a defendant is motivated by
genuine acceptance of responsibility,” United States v.
Gilbertson, 435 F.3d 790, 799 (7th Cir. 2006), and our
review is only for clear error, United States v. Panice, 598
F.3d 426, 435 (7th Cir. 2010). The defendants take the
position that because they had a right to require the
government to prove relevant conduct at sentencing,
it is error to deny them a reduction for acceptance of
responsibility simply because they exercised that right.
But that argument does not do the district court’s
decision justice. We recognize that the decision to
Nos. 09-1079, 09-1276 & 09-1308 21
demand proof of relevant conduct does not automatically
bar the reduction that Bowman and Cole seek. Indeed,
a defendant may in a rare case exercise all of her trial
rights and still benefit under § 3E1.1. See United States
v. DeLeon, 603 F.3d 397, 407 (7th Cir. 2010) (discussing
Application Note 2 to § 3E1.1). The question is what did
the defendant do with that opportunity to testify, or
otherwise to participate. Application Note 1(a) to § 3E1.1
tells judges to consider whether a defendant has “falsely
den[ied] any additional relevant conduct” when
deciding whether to grant a reduction for acceptance of
responsibility. (Emphasis added.) While a defendant
may want cross-examination of witnesses to disprove
false testimony related to relevant conduct, she may
also try to present testimony in an attempt falsely to
deny past activities. Bowman and Cole did the latter,
not the former.
The district court decided that Bowman gave “false
testimony” and said that Cole “frivolously denied the
amounts of crack cocaine attributed to [him].” Cole argues
that he is responsible for roughly 10 percent of the
quantity of crack cocaine that the government attributes
to him. He insists before this court that the govern-
ment’s witnesses made up facts about him, but he pre-
sented only one witness to contest their version of
events at sentencing. Given the deferential standard of
review that applies, we cannot say the district court’s
conclusion that Cole frivolously denied relevant conduct
was clear error. Bowman’s argument for acceptance of
responsibility would fail under any standard of review.
Fatal to his case is the fact that, after he was arrested on
22 Nos. 09-1079, 09-1276 & 09-1308
an unrelated warrant on October 2, 2007, he escaped
from prison and remained on the lam until early 2008.
See § 3E1.1, cmt. n.1(c) (noting the importance of “volun-
tary surrender to authorities promptly after commission
of the offense”). It is worth noting, too, that Bowman is not
contesting on appeal the district court’s decision to en-
hance his sentence under § 3C1.1 for obstructing jus-
tice. “[A] defendant whose sentence was properly en-
hanced for obstruction of justice is presumed not to
have accepted responsibility.” United States v. Gonzalez-
Mendoza, 584 F.3d at 726, 730-31 (7th Cir. 2009); see also
§ 3E1.1, cmt. n.4.
C
We arrive finally at the defendants’ arguments that
their sentences were unreasonable in light of the well-
known feature of the guidelines drawing a distinction
between crack and powder cocaine sentences. Where
the guidelines have been properly applied, we evaluate
the reasonableness of a sentence under an abuse of discre-
tion standard, and we may presume a sentence falling
within the guidelines range is reasonable. Gall v. United
States, 552 U.S. 38, 56 (2007); Rita v. United States, 551
U.S. 338, 347 (2007).
All three defendants suggest that the crack/powder
disparity is the very definition of an “unwarranted sen-
tence disparit[y],” as the phrase is used in 18 U.S.C.
§ 3553(a)(6). Under this theory, all sentences imposed
pursuant to the guidelines’s crack cocaine provisions
would be “per se unreasonable.” The Court has made clear
Nos. 09-1079, 09-1276 & 09-1308 23
that a judge may depart from the crack cocaine guide-
lines because of a policy disagreement with the crack/
powder disparity. Kimbrough v. United States, 551 U.S. 85
(2007); Spears v. United States, 129 S. Ct. 840 (2009). At the
same time, however, a district court “is equally within its
authority to adhere to the Guidelines because it concurs
with the policy judgment the Guidelines reflect.” United
States v. Scott, 555 F.3d 605, 610 (7th Cir. 2009). We have
little to add here to the comprehensive discussion of
this issue in United States v. Gonzalez, 608 F.3d 1001, 1003-
05 (7th Cir. 2010). Because Kimbrough permits district
courts to deviate from the crack cocaine guidelines but
does not require them to do so, we reject the defendants’
argument that their sentences are unreasonable per se.
Etchin develops her argument a bit further, submitting
that the district judge failed to pay proper attention to
her argument that a downward departure was war-
ranted (even if not required) due to the crack/powder
disparity. As with any serious argument at sentencing,
we require the sentencing court to consider the point and
provide an explanation of its decision that is detailed
enough to permit meaningful appellate review. E.g., Scott,
555 F.3d at 608-09; United States v. Harris, 567 F.3d 846, 854-
55 (7th Cir. 2009); United States v. Cunningham, 429 F.3d
673, 679 (7th Cir. 2005).
In Etchin’s PSR, the Probation Officer took the posi-
tion that a departure from the calculated guidelines
range was not warranted. Etchin objected, arguing that
the crack/powder disparity was a good reason to deviate.
In response, the Probation Officer amended the PSR,
24 Nos. 09-1079, 09-1276 & 09-1308
writing, “Pursuant to the decision in Kimbrough . . .
the [district court] is permitted to consider the dis-
parity between powder cocaine and crack cocaine.” At
sentencing, the district judge noted that Etchin had filed
objections to the PSR and said, “One is to the guidelines
for determining base offense levels for crack cocaine
users.” The court continued, “[A]s to the objection to the
crack cocaine, I will just note that and proceed. Do you
want to say anything further about it?” Etchin’s lawyer
responded, “On that, probably briefly, Judge.” After
that, however, there was no further discussion of the
crack/powder disparity. At the hearing’s conclusion, the
judge said, “I will take into consideration the advisory
sentencing guidelines . . . . I have noted that both
parties have filed objections . . . . Given the nature of
the offense and your history and characteristics, I’m
persuaded that a sentence within the guidelines range
is warranted.” Sent. Tr. at 19-20. Although this was on
the brief end of the spectrum, the record as a whole
provides enough information to permit us to conclude
that the judge was aware of her discretion and properly
took Kimbrough into account.
* * *
We A FFIRM the judgments of the district court with
respect to all three defendants.
8-4-10