In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1598
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
BRIAN THURMAN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:14‐cr‐00366‐1 — Virginia M. Kendall, Judge.
____________________
ARGUED NOVEMBER 29, 2017 — DECIDED MAY 2, 2018
____________________
Before WOOD, Chief Judge, RIPPLE and KANNE, Circuit
Judges.
RIPPLE, Circuit Judge. Law enforcement executed a search
warrant at Brian Thurman’s residence after a cooperating in‐
formant purchased heroin inside. They discovered drug par‐
aphernalia, two handguns, and a large amount of money.
Mr. Thurman was arrested and later charged in a three‐count
superseding indictment with (1) maintaining a drug‐involved
premises, in violation of 21 U.S.C. § 856(a)(1); (2) distributing
2 No. 17‐1598
100 grams or more of heroin, in violation of 21 U.S.C.
§ 841(a)(1); and (3) possessing a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
Before trial, Mr. Thurman filed two motions to suppress:
one to exclude self‐incriminating statements that he made fol‐
lowing his arrest and another to exclude evidence obtained
from a search of his cell phone. The district court denied both
motions. A jury later convicted Mr. Thurman on the distribu‐
tion charge, but acquitted him on the drug‐premise and fire‐
arms charges. The court sentenced him to seventy‐two
months’ imprisonment and four years’ supervised release.
Mr. Thurman now challenges the court’s denial of his mo‐
tions to suppress and its findings supporting his sentence. He
maintains that he did not waive voluntarily his Miranda rights
or consent voluntarily to the search of his cell phone. He also
challenges the court’s findings at sentencing that he was re‐
sponsible for at least 700 grams of heroin and that he pos‐
sessed a dangerous weapon. He notes that the jury convicted
him of distributing a significantly smaller quantity of drugs
and acquitted him of the firearms charge.
We cannot accept these contentions. Mr. Thurman’s sup‐
pression arguments require us to re‐evaluate the district
court’s credibility determinations. The court did not clearly
err in crediting the officers’ testimony that Mr. Thurman con‐
sented to their questioning and to the search of his phone.
Furthermore, the court made proper findings of fact when ap‐
plying the Sentencing Guidelines. Sentencing courts can con‐
sider conduct underlying an acquitted charge so long as that
conduct is proven by a preponderance of the evidence. Ac‐
cordingly, we affirm the judgment of the district court.
No. 17‐1598 3
I
BACKGROUND
A.
In August 2013, Minnesota police officers tracked the
movement of Courtney Williams from the west side of Chi‐
cago to Minnesota, where they arrested him with 489 grams
of heroin hidden inside a spare tire. Williams told the author‐
ities that Mr. Thurman had supplied him with the heroin in
exchange for a $17,000 down payment and $20,000 of debt.
Later that month, in cooperation with the police, Williams
wore a wire to Mr. Thurman’s house in Chicago, where he
gave Mr. Thurman $10,000 in partial payment of his debt. Wil‐
liams continued to cooperate with authorities and arranged a
controlled drug purchase the next month. Williams sent
Mr. Thurman a text message with the number “150,” to which
Mr. Thurman wrote “Yeap” and later responded with
“Touchdown.”1 The next day, Williams went to Mr. Thur‐
man’s house and exchanged $23,500 for 148.5 grams of heroin
and the satisfaction of his remaining debt. Law enforcement
waited outside while Williams completed the transaction.
After confirming that Williams had purchased heroin in‐
side, the officers forced entry into Mr. Thurman’s house and
executed a search warrant that was contingent on the comple‐
tion of the controlled buy. They arrested Mr. Thurman and
handcuffed him in the back of a police car. His girlfriend and
son remained inside. While searching the basement, the offic‐
ers found plastic bags, packaging tape, electronic scales, a safe
with approximately $27,000 in cash, and some of the money
1 R.137 (Trial Tr.) at 332, 336.
4 No. 17‐1598
Williams had just exchanged. They did not discover any her‐
oin. Mr. Thurman informed the police that there were two
firearms in the house: a Glock .40 caliber handgun in a trash
bag in the basement and a Bryco .380 caliber handgun in a
bedroom closet upstairs. The officers discovered loaded mag‐
azines next to both guns; however, they could not recall con‐
sistently whether the guns themselves were loaded. When
asked, Mr. Thurman told the officers that they could search
the common areas of a nearby residential property which he
owned. He refused, however, to sign a consent form and spe‐
cifically instructed the officers not to search inside the apart‐
ments where his tenants lived. An officer wrote “refused to
sign but consented” on the consent form.2
Law enforcement took Mr. Thurman to a Chicago office of
the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) for questioning. Once inside the interview room, the
agents removed Mr. Thurman’s handcuffs and provided him
with a Gatorade. According to the authorities, they advised
Mr. Thurman of his Miranda rights, but he refused to sign an
advice‐of‐rights form. Nevertheless, he indicated a desire to
cooperate with them and proceeded to admit that he had sold
drugs out of his house and owned two guns to protect his
drug trade. During the interview, the agents conducted a
search of Mr. Thurman’s cell phone. The parties dispute
whether Mr. Thurman verbally consented to this search, but
they agree that he refused to sign a consent‐to‐search form.
Two of the agents remembered Mr. Thurman showing them
specific names and numbers in the phone corresponding to
2 R.52 (Suppression Hr’g Tr.) at 52.
No. 17‐1598 5
Williams, who was listed as “Skinny,” and his primary sup‐
plier, who was listed as “Meko.”3 They also recalled Mr. Thur‐
man admitting to having deleted text messages with Williams
about their transaction earlier that day.
The agents eventually released Mr. Thurman on the un‐
derstanding that he would return the next day to continue co‐
operating. They retained his cell phone and expected him to
initiate recorded calls with his supplier when he returned.
Mr. Thurman asked whether he should bring an attorney
with him, and the agents said that it was his choice. Mr. Thur‐
man did not return as expected. Instead, his attorney called to
say that Mr. Thurman would not be cooperating any further.
Law enforcement subsequently conducted a forensic exami‐
nation of his cell phone and reconstructed the recently deleted
text messages between Mr. Thurman and Williams.
B.
In September 2015, Mr. Thurman was charged in a three‐
count superseding indictment with (1) knowingly using and
maintaining a residence for the purpose of distributing a con‐
trolled substance, in violation of 21 U.S.C. § 856(a)(1); (2)
knowingly and intentionally distributing 100 grams or more
of a mixture and substance containing a detectable amount of
heroin, in violation of 21 U.S.C. § 841(a)(1); and (3) knowingly
possessing a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A).
3 R.137 (Trial Tr.) at 412–16.
6 No. 17‐1598
Before trial, he filed a motion to suppress any evidence ob‐
tained from the search of his cell phone and a motion to sup‐
press any incriminating statements he made during the
post‐arrest interrogation.4 He attached copies of the con‐
sent‐to‐search form for his cell phone and the advice‐of‐rights
form, both of which reflected his refusal to sign. He also sub‐
mitted an affidavit averring that he “refused to give consent
to the requested warrantless searches” and “refused to pro‐
vide any information to law enforcement agents without the
presence of an attorney.”5
The district court held a hearing on the motions. At the
hearing, the Government presented substantially consistent
testimony from three of the agents involved in Mr. Thurman’s
arrest and questioning. They all testified that Mr. Thurman
refused to sign any forms but verbally agreed to the limited
search of his second property, to the search of his cell phone,
and to their questioning without an attorney present. The
agents did not record their interactions with Mr. Thurman.6
The defense called two law enforcement witnesses. They pro‐
vided substantially similar testimony to that of the prosecu‐
tion’s witnesses. Mr. Thurman did not testify at the hearing,
instead relying on his affidavit.
4 Mr. Thurman did not challenge the search of his second property, as
nothing was found or removed from those premises.
5 R.45‐2; R.46‐2.
6 At the time, ATF policy did not require video recording of all custodial
interrogations. Since Mr. Thurman’s arrest, the policy has been changed
to require such recordings.
No. 17‐1598 7
The court denied both motions. With respect to the motion
to suppress the incriminating statements, the court concluded
that Mr. Thurman did not unambiguously invoke his Miranda
rights but rather impliedly waived them. The court credited
the testimony of the agents, whom it deemed “credible based
on their demeanor and the consistency of their testimony.”7
Accordingly, the court found that Mr. Thurman had spoken
freely during the interview with a full understanding of his
rights and in an apparent attempt to obtain beneficial treat‐
ment. It also held that Mr. Thurman’s refusal to sign the ad‐
vice‐of‐rights form did not undermine the voluntariness of his
waiver; if anything, it demonstrated his comfort in denying
the agents’ requests. With respect to the motion to suppress
the evidence from the cell phone search, the court found that
Mr. Thurman voluntarily consented to the search, as demon‐
strated by his clear understanding of his rights and comfort
interacting with the authorities. With all of this evidence
deemed admissible, the case proceeded to trial.
At trial, the Government presented similar testimony from
the agents as well as testimony from Williams. It also intro‐
duced recordings of Williams’s meetings with Mr. Thurman,
the drug paraphernalia and handguns seized from Mr. Thur‐
man’s residence, Mr. Thurman’s incriminating statements fol‐
lowing his arrest, telephone records and summaries, and re‐
constructed text messages and contacts that had been deleted
from his cell phone. Mr. Thurman did not testify. The jury
convicted him on the distribution charge (Count 2), but ac‐
quitted him on the drug‐premises charge (Count 1) and the
firearms charge (Count 3).
7 R.73 at 9.
8 No. 17‐1598
At sentencing, the court found that Mr. Thurman was re‐
sponsible for distributing between 700 grams and one kilo‐
gram of heroin, resulting in a base offense level of 28. See
U.S.S.G. § 2D1.1(c)(6). It also found that he possessed a dan‐
gerous weapon in connection with the drug offense, which
triggered a two‐level enhancement. See U.S.S.G. § 2D1.1(b)(1).
Combining his offense level of 30 with his criminal history
category of I, the court calculated an advisory guidelines
range of 97 to 121 months. The court then considered the sen‐
tencing factors under 18 U.S.C. § 3553(a). It weighed the seri‐
ousness of the offense and the need for general deterrence
against Mr. Thurman’s positive history and characteristics;
specifically, he had contributed to his community as a teacher
and demonstrated both a sense of remorse and an ability to
reform his behavior. Ultimately, the court sentenced him to
seventy‐two months in prison and four years of supervised
release. It further ordered him to repay the money he retained
from the controlled buy and to pay a special assessment of
$100.
II
DISCUSSION
A. Motions to Suppress
Mr. Thurman challenges the district court’s denials of his
motions to suppress. We review the court’s legal conclusions
de novo and its underlying factual findings for clear error,
giving special deference to its credibility determinations. See
United States v. Burnside, 588 F.3d 511, 516–17 (7th Cir. 2009).
“A factual finding is clearly erroneous only if, after consider‐
ing all the evidence, we cannot avoid or ignore a definite and
No. 17‐1598 9
firm conviction that a mistake has been made.” Id. at 517 (in‐
ternal quotation marks omitted).
1.
We first consider Mr. Thurman’s motion to suppress his
post‐arrest statements. The district court found that Mr. Thur‐
man did not unambiguously invoke his Miranda rights but ra‐
ther impliedly waived them. This conclusion primarily
turned on the court’s crediting of the agents’ testimony and
discrediting of Mr. Thurman’s affidavit. According to the
court’s factual findings, Mr. Thurman was advised of and
fully understood his Miranda rights; he strategically refused
to sign the advice‐of‐rights form; and he nonetheless chose to
speak with the officers in the hope of obtaining leniency. The
court did not find any credible evidence that Mr. Thurman
invoked his Miranda rights or was coerced into waiving them.
It thus denied his motion to suppress.
The law is clear that before law enforcement officers can
interrogate a suspect in custody, they must inform the suspect
of his Miranda rights. United States v. Shabaz, 579 F.3d 815, 818
(7th Cir. 2009). If the suspect invokes his rights, the officers
must cease their questioning. Id. However, the burden is on
the suspect to make a “clear and unambiguous assertion” of
his rights. Id. (quoting United States v. Lee, 413 F.3d 622, 625
(7th Cir. 2005)). Even if a suspect does not invoke his Miranda
rights, his self‐incriminating statements cannot be used
against him in court unless the Government shows by a pre‐
ponderance of the evidence that he voluntarily waived these
rights. Berghuis v. Thompkins, 560 U.S. 370, 382–84 (2010); see
also United States v. Brown, 664 F.3d 1115, 1118 (7th Cir. 2011).
10 No. 17‐1598
The voluntariness of a waiver is assessed based on the totality
of circumstances. Brown, 664 F.3d at 1118.
The record adequately supports the district court’s finding
that Mr. Thurman did not invoke his Miranda rights. This
finding was based primarily on the court’s evaluation of the
credibility of the agents compared to that of Mr. Thurman. As
is often the case with motions to suppress, the court was faced
with “a veritable ‘[]he said’ versus ‘they said,’” United States
v. Smith, 218 F.3d 777, 780 (7th Cir. 2000), and it accepted the
agents’ version of events. Notably, the court was able to assess
firsthand the agents’ demeanors under cross‐examination,
whereas it could not probe Mr. Thurman’s uncorroborated af‐
fidavit. Because the agents’ testimony was consistent, plausi‐
ble, and unbiased, we see no clear error in the court’s credi‐
bility determinations. Mr. Thurman’s later inquiry about get‐
ting an attorney does not undermine the finding that he failed
to invoke his rights; his inquiry occurred after the end of the
interrogation, and, in any event, it was not an unambiguous
invocation of his Miranda rights. See Shabaz, 579 F.3d at 819
(noting that the statements, “maybe I should talk to a lawyer”
and “I don’t know if I need an attorney,” do not invoke the
right to counsel). Based on the record as it comes to us, we
must uphold the finding that Mr. Thurman did not invoke his
Miranda rights.
We next review whether Mr. Thurman waived his rights
and, if so, whether his waiver was voluntary. Waiver can be
express or implied. Berghuis, 560 U.S. at 384. In the latter case,
waiver “may be inferred from a defendant’s understanding of
[his] rights coupled with a course of conduct reflecting [his]
desire to give up [these] right[s].” Smith, 218 F.3d at 781. The
burden is on the prosecution to show that the defendant gave
No. 17‐1598 11
up his rights “voluntar[il]y in the sense that it was the product
of a free and deliberate choice … and made with a full aware‐
ness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Berghuis, 560 U.S.
at 382–83 (internal quotation marks omitted). The voluntari‐
ness of waiver is informed by the defendant’s age and educa‐
tion, his experience with law enforcement, and the length and
conditions of the interview. Brown, 664 F.3d at 1118; Shabaz,
579 F.3d at 820.
Mr. Thurman maintains that his refusal to sign the ad‐
vice‐of‐rights form shows that he did not waive his rights, at
least not voluntarily. Refusal to sign a waiver form, however,
is not enough to defeat credible evidence of an implied
waiver. See Smith, 218 F.3d at 781 (“[W]aiver may be inferred
from the defendant’s conduct, even when [he] has refused to
sign a waiver form.”); see also Shabaz, 579 F.3d at 820. As the
Supreme Court has explained, “the law can presume that an
individual who, with a full understanding of his or her rights,
acts in a manner inconsistent with their exercise has made a
deliberate choice to relinquish the protection those rights af‐
ford.” Berghuis, 560 U.S. at 385. Here, the record provides
more than sufficient support for the finding that Mr. Thurman
understood his rights and deliberately chose to relinquish
them by engaging in the interrogation.
The circumstances of his interview and his particular con‐
duct closely resemble prior cases in which we have affirmed
the voluntariness of defendants’ waivers. In Smith, we re‐
jected the defendant’s argument that her refusal to sign a
waiver form required the suppression of her incriminating
statements. See 218 F.3d at 781. We concluded that she volun‐
tarily waived her Miranda rights based in part on the fact that
12 No. 17‐1598
the authorities brought her a beverage and created an atmos‐
phere that the district court described as “low key and infor‐
mal.” Id. Similarly, the officers here brought Mr. Thurman a
Gatorade, released him from handcuffs, and “acted profes‐
sionally during all of their interactions with Thurman.”8 Our
conclusion in Smith was bolstered by “the fact that [the de‐
fendant] refused to sign the waiver form,” which “show[ed]
her independent thinking and exercise of her free will.” Id. at
782. The same reasoning applies here. Any pressure that
Mr. Thurman felt simply did not rise to the level of coercion
that renders a waiver involuntary. See Berghuis, 560 U.S. at 387
(rejecting claim of involuntary waiver and noting that defend‐
ant was not “incapacitated and sedated,” “sleep and food
depriv[ed],” or threatened).
For all of the reasons above, we affirm the court’s denial
of Mr. Thurman’s motion to suppress his post‐arrest state‐
ments.
2.
Mr. Thurman also challenges the denial of his motion to
suppress evidence resulting from the authorities’ search of his
cell phone. He again points to his affidavit and his refusal to
sign a consent form as evidence that he did not consent, at
least not voluntarily, to the search of his phone. He also ar‐
gues in the alternative that his consent was limited to the
search of his phone during the interrogation and did not ex‐
tend to the subsequent forensic examination. Therefore, he
8 R.73 at 11.
No. 17‐1598 13
claims, the reconstructed text messages and contacts should
not have been admitted at trial.
There is no dispute that “[w]arrantless searches are pre‐
sumptively unreasonable under the Fourth Amendment.”
United States v. Strache, 202 F.3d 980, 984 (7th Cir. 2000). There‐
fore, “[i]n the absence of a warrant, a search is reasonable only
if it falls within a specific exception to the warrant require‐
ment.” Riley v. California, 134 S. Ct. 2473, 2482 (2014). One such
exception is voluntary consent to a search. See Strache, 202
F.3d at 984. If the Government relies on this exception, it must
prove by a preponderance of the evidence that the defendant
consented to the disputed search. See United States v. Hicks
(Hicks II), 650 F.3d 1058, 1064 (7th Cir. 2011).
Here, the question whether Mr. Thurman consented to the
search raises an underlying question: did the officers lie when
they testified at the suppression hearing, or did Mr. Thurman
lie in his affidavit? This is a classic credibility determination.
As such, we “defer to the district court’s determination … be‐
cause, unlike our review of transcripts, the district court ‘had
the opportunity to listen to testimony and observe the de‐
meanor of witnesses at the suppression hearing.’” United
States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007) (quoting United
States v. Parker, 469 F.3d 1074, 1077 (7th Cir. 2006)). Here, the
court was faced with two divergent accounts, neither of
which was facially implausible. The court weighed the credi‐
bility of Mr. Thurman’s affidavit against the live testimony of
the agents. Although only two agents were present when
Mr. Thurman was asked to sign the consent‐to‐search form,
they consistently recalled his refusal to sign, his verbal con‐
sent to the search, and his affirmative help in identifying par‐
ticular names and numbers in his phone. Their testimony was
14 No. 17‐1598
not implausible or otherwise disqualifying, and it provided
an adequate basis for the court’s determination.9
Before addressing the voluntariness and scope of
Mr. Thurman’s consent, we address two of his arguments that
the agents’ testimony should not be believed. First, he claims
that his refusal to sign the consent form constitutes objective
documentary evidence that cannot be disproven by suppos‐
edly self‐serving testimony. Mr. Thurman’s argument over‐
looks the fact that the agents’ testimony does not contradict
the documentary evidence: they recalled his refusal to sign
the forms as well as his separate verbal consent.10 Furthermore,
Mr. Thurman cites no authority for the proposition that doc‐
umentary evidence necessarily outweighs verbal testimony.
To the contrary, we, as well as other courts, have affirmed
findings of consent despite a defendant’s documented refusal
9 Mr. Thurman emphasizes the Supreme Court’s opinion in Riley v. Cali‐
fornia, 134 S. Ct. 2473 (2014). There, the Court held that cell phone data
generally cannot be searched without a warrant under the search incident
to arrest exception. Id. at 2495. Although the Court discussed the unique
nature of modern cell phones as unparalleled repositories for personal in‐
formation, it did not address the consent‐based exception to the warrant
requirement. Indeed, the Court stated that “even though the search inci‐
dent to arrest exception does not apply to cell phones, other case‐specific
exceptions may still justify a warrantless search of a particular phone.” Id.
at 2494. Therefore, Riley does not affect our holding.
10 The agents remembered a similar response by Mr. Thurman when they
asked if they could search his second residential property. According to
the agents, he refused to sign the consent form but said “I know my rights.
I can give you verbal consent, and I’m doing that.” R.52 (Suppression Hr’g
Tr.) at 76.
No. 17‐1598 15
to sign a form.11 Second, Mr. Thurman highlights the lack of
any recording of his consent, which contravenes the ATF’s
current policy of recording all custodial interrogations. Alt‐
hough a recording would resolve the present dispute, the
Constitution certainly does not mandate such a policy. See
United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir.
2004). The ATF’s decision to enact more protective practices
does not render the agents’ past actions unlawful or their tes‐
timony implausible. Cf. Biggs, 491 F.3d at 621–22 (upholding
finding of consent despite lack of recording).
Arguing in the alternative, Mr. Thurman contends that his
consent was not given voluntarily. The Fourth Amendment
requires that “consent not be coerced, by explicit or implicit
means, by implied threat or covert force.” Schneckloth v.
Bustamonte, 412 U.S. 218, 228 (1973). When a defendant claims
that he was coerced into consenting, the Government bears
the burden of proving otherwise by a preponderance of the
evidence. See Hicks II, 650 F.3d at 1064. The voluntariness of
11 See, e.g., United States v. Hicks (Hicks I), 539 F.3d 566, 568–70 (7th Cir.
2008) (affirming finding of oral consent despite refusal to sign consent
statement); United States v. Lattimore, 87 F.3d 647, 651 (4th Cir. 1996) (en
banc) (“It is clear, however, that a refusal to execute a written consent form
subsequent to a voluntary oral consent does not act as an effective with‐
drawal of the prior oral consent.”); United States v. Thompson, 876 F.2d
1381, 1384 (8th Cir. 1989) (holding consent effective despite defendant’s
refusal to sign written consent form); United States v. Castillo, 866 F.2d
1071, 1081–82 (9th Cir. 1988) (holding that refusal to execute written con‐
sent form did not vitiate prior verbal consent); United States v. Boukater,
409 F.2d 537, 538 (5th Cir. 1969) (noting that refusal to sign waiver did not
taint search to which defendant otherwise consented); cf. United States v.
$304,980.00 in U.S. Currency, 732 F.3d 812, 820–21 (7th Cir. 2013) (rejecting
claim that verbal consent was revoked by writing “UNDER PROTEST” on
consent form).
16 No. 17‐1598
consent is a question of fact informed by the totality of cir‐
cumstances. Schneckloth, 412 U.S. at 227. We have enumerated
the following relevant factors: (1) the age, education, and in‐
telligence of the defendant; (2) whether he was advised of his
constitutional rights; (3) how long he was detained before
consenting; (4) whether he consented immediately or was
prompted by repeated requests; (5) whether physical coercion
was used; and (6) whether he was in custody when he con‐
sented. United States v. Hicks (Hicks I), 539 F.3d 566, 570 (7th
Cir. 2008).
When viewed as a whole, the record adequately supports
the finding that Mr. Thurman’s consent was voluntary. By all
accounts, Mr. Thurman is an intelligent and educated person.
He graduated from Purdue University and was pursuing a
master’s degree at the time of his arrest. He was advised of
his constitutional rights and consented to the search without
repeated prompting. Additionally, there are no indications
that physical coercion was used to obtain his consent. Alt‐
hough Mr. Thurman was in custody, his handcuffs were re‐
moved and he was given a Gatorade. The fact that he limited
his consent to an earlier search and refused to sign the consent
form further demonstrates that he was comfortable partially
granting, and even denying, the officers’ requests.
Mr. Thurman’s last challenge to the search concerns the
scope of his consent. Even if his consent was freely given, he
claims, it did not extend to the secondary forensic search of
his phone.12 Based on the record before us, we cannot agree.
12 The Government contends that Mr. Thurman has waived this challenge
by failing to raise it before the district court and failing to provide good
No. 17‐1598 17
It is well established that a criminal suspect may limit the
scope of consent to a search, see Florida v. Jimeno, 500 U.S. 248,
252 (1991), but the burden is on him to do so, see United States
v. Patterson, 97 F.3d 192, 195 (7th Cir. 1996). Whether a search
extends beyond the scope of consent “is a question of fact to
be determined from the totality of all the circumstances.”
United States v. Saucedo, 688 F.3d 863, 865 (7th Cir. 2012) (quot‐
ing United States v. Jackson, 598 F.3d 340, 348 (7th Cir. 2010)).
The standard for measuring the scope of consent “is that of
‘objective’ reasonableness—what would the typical reasona‐
ble person have understood by the exchange between the of‐
ficer and the suspect?” Jimeno, 500 U.S. at 251. Relevant factors
include the defendant’s behavior, the purpose of the search,
and any show of force. United States v. Osuorji, 32 F.3d 1186,
1190 n.3 (7th Cir. 1994).
Mr. Thurman’s actions and the circumstances of the inves‐
tigation adequately support a finding that he consented to the
forensic examination. “[C]ourts can look at the defendant’s
conduct to help determine the scope of a consensual search.”
United States v. Maldonado, 38 F.3d 936, 940 (7th Cir. 1994).
When the agents asked if they could search Mr. Thurman’s
phone, they presented him with the same consent form that
he had refused to sign earlier with respect to the search of his
second residential property. Despite his refusal to sign,
cause for that omission. See Fed. R. Crim. P. 12(b)(3)(C) (providing that a
motion to suppress must be raised before trial). Mr. Thurman insists that
his claim of non‐consent encompasses his challenge to the scope of con‐
sent. Because we conclude that Mr. Thurman’s consent extended to the
forensic search, we need not decide whether Mr. Thurman waived or for‐
feited this argument. His challenge fails under any standard of review.
18 No. 17‐1598
Mr. Thurman not only verbally agreed to the search, he af‐
firmatively showed the agents specific names and phone
numbers corresponding to his drug‐related contacts. This
conduct does not suggest any intent to limit the parameters of
his consent. See United States v. Jackson, 598 F.3d 340, 348–49
(7th Cir. 2010) (“Where someone … consents to a general
search, law enforcement may search anywhere within the
general area where the sought‐after item could be con‐
cealed.”); United States v. Long, 425 F.3d 482, 486–87 (7th Cir.
2005) (holding that forensic search of computer did not exceed
scope of consent to search defendant’s office, including his
computer, when consent was given “with no limitations or
qualifications”). Mr. Thurman did not restrict the agents’ con‐
temporaneous examination of his phone, nor did he ask for it
back at the end of the interview. The unlimited nature of his
consent is particularly apparent when considered in light of
his earlier limited consent to the search of his second prop‐
erty.
Furthermore, the purpose of the search was clear. As the
Supreme Court has explained, the “scope of a search is gener‐
ally defined by its expressed object.” Jimeno, 500 U.S. at 251.
Because it was clear that the agents were investigating
Mr. Thurman’s recent drug sales, a reasonable person in his
position would expect them to search the phone for relevant
deleted messages.13 A reasonable person may be expected to
13 We note parenthetically that during trial the officers testified that they
asked Mr. Thurman about his recent transaction with Williams, and
Mr. Thurman admitted that he had erased his text messages arranging
that sale. The agents did not attempt to mislead Mr. Thurman or otherwise
obfuscate the purpose of their investigation. See United States v. Jackson,
598 F.3d 340, 348 (7th Cir. 2010) (“Law enforcement agents may not obtain
No. 17‐1598 19
know that recently deleted information can be reconstructed
on a cell phone. Cf. United States v. Watkins, 760 F.3d 1271,
1277, 1283 (11th Cir. 2014) (concluding that unlimited consent
to search computer extended to forensic search that revealed
deleted files); Long, 425 F.3d at 486–87 (holding that unlimited
consent to search office and laptop authorized forensic search
of computer). Given the clear purpose of the search and the
unlimited nature of Mr. Thurman’s consent, we conclude that
the forensic examination did not violate his Fourth Amend‐
ment rights.14 We thus affirm the denial of the motion to sup‐
press.
someone’s consent to search by misrepresenting that they intend to look
only for certain specified items and subsequently use that consent to jus‐
tify a general exploratory search.”).
14 Mr. Thurman cites United States v. Escamilla, 852 F.3d 474 (5th Cir. 2017),
cert. denied, 138 S. Ct. 336 (2017), for the proposition that “[w]hen the facts
and circumstances surrounding a person’s consent suggest a natural end
to the consensual exchange with law enforcement, officers should not
view the earlier consent as ‘authorizing a second search at some future
time if the first search is not fruitful.’” Appellant’s Br. 20 (quoting Esca‐
milla, 852 F.3d at 485). In Escamilla, the Fifth Circuit held that a forensic
search of the defendant’s cell phone was not justified by his earlier consent
to a request to “look through” it. 852 F.3d at 485. Although we are not
bound by Escamilla, we note that Mr. Thurman’s case is distinguishable on
multiple grounds. For one, the officer in Escamilla returned the phone to
the defendant, indicating the end of the search to which he had consented.
Here, Mr. Thurman’s phone was not returned at the end of the interview,
and he does not appear to have requested its return even after he ceased
cooperating. Furthermore, unlike the defendant in Escamilla, Mr. Thurman
told the authorities that he had deleted information from his phone that
he reasonably should have known was highly relevant to their investiga‐
tion. When the defendant consented in Escamilla, he did not know the na‐
ture of the officer’s investigation, nor did he admit to the removal of rele‐
vant information from his phone.
20 No. 17‐1598
B. Sentencing
Mr. Thurman also challenges the district court’s findings
underlying its application of the Sentencing Guidelines. The
court set Mr. Thurman’s base offense level at 28 based on a
finding that he was responsible for between 700 grams and
one kilogram of heroin. See U.S.S.G. § 2D1.1(c)(6). It also ap‐
plied a two‐level enhancement after finding that he possessed
a dangerous weapon in connection with the drug offense. See
U.S.S.G. § 2D1.1(b)(1). Mr. Thurman contends that these de‐
terminations violate his Fifth Amendment right to due pro‐
cess and his Sixth Amendment right to trial by jury, respec‐
tively. We review the court’s application of the Guidelines de
novo and its factual findings for clear error. United States v.
Cherry, 855 F.3d 813, 815–16 (7th Cir. 2017).
1.
Mr. Thurman first attacks the court’s drug‐quantity find‐
ing. Although the jury convicted him of distributing only 100
grams or more of heroin, the court selected his base offense
level based on 700 grams to one kilogram of heroin. The court
arrived at that figure by considering the amount of heroin
seized from Williams in August 2013, the amount of heroin
Williams purchased in the controlled buy, the amount of
money and drug paraphernalia found in Mr. Thurman’s base‐
ment, and Mr. Thurman’s own admission that he sold ap‐
proximately 800 grams to Williams over a three‐month pe‐
riod. The court declined to consider Williams’s statement to
the grand jury that he had obtained an additional 1.15 kilo‐
grams from Mr. Thurman between the spring of 2012 and Au‐
gust 2013.
No. 17‐1598 21
The standards that apply to drug‐quantity findings at sen‐
tencing are well established:
[A] preponderance of the evidence is all that is
required for a factual finding of drug quantity
under the Sentencing Guidelines, due process
concerns notwithstanding. Determining drug
quantities under the Sentencing Guidelines is
often difficult, and district courts may make rea‐
sonable though imprecise estimates based on
information that has indicia of reliability. … At
the same time, … a district court choosing
among plausible estimates of drug quantity
should normally err on the side of caution.
United States v. Bozovich, 782 F.3d 814, 818 (7th Cir. 2015) (cita‐
tions omitted) (internal quotation marks omitted). Accord‐
ingly, the fact that the jury did not find beyond a reasonable
doubt that Mr. Thurman distributed at least 700 grams of her‐
oin does not undermine the constitutionality of the court’s
chosen base offense level. See United States v. Johnson, 489 F.3d
794, 796 (7th Cir. 2007) (noting that sentencing courts are “not
bound by the same stringent evidentiary standards as are ap‐
plicable in a criminal trial”). So long as the evidence before
the court “bears sufficient indicia of reliability to support its
probable accuracy,” we will not disturb its findings. United
States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007) (alterations
omitted) (quoting United States v. Cross, 430 F.3d 406, 410 (7th
Cir. 2005)).
After a careful review of the record, we conclude that there
was more than sufficient evidence to support the court’s
drug‐quantity finding. When Williams first was arrested in
August 2013, the police seized 498 grams of heroin from his
22 No. 17‐1598
spare tire, which he attributed to a recent purchase from
Mr. Thurman. This attribution was corroborated by the offic‐
ers’ surveillance records, which placed Williams near
Mr. Thurman’s house the day before. The $27,000 found in a
safe in Mr. Thurman’s basement, along with packaging tape,
plastic baggies, and electronic scales, also demonstrates the
scale of his drug operation.
Moreover, Mr. Thurman admitted to authorities that he
had distributed approximately 800 grams of heroin to Wil‐
liams over a three‐month period. “Self‐incriminating state‐
ments … clearly against [a defendant’s] penal interest, have
long been considered reliable enough for use at trial, so we
cannot say that they are too unreliable for use at sentencing.”
United States v. Tankson, 836 F.3d 873, 882 (7th Cir. 2016) (al‐
terations omitted) (quoting United States v. Johnson, 342 F.3d
731, 734 (7th Cir. 2003)). Mr. Thurman’s admission is particu‐
larly reliable given that the 800‐gram amount he quoted rea‐
sonably corresponds to the amount found in Williams’s tire
plus the amount of the controlled buy. As we have said, “no
one [is] more qualified than the dealer himself to put a num‐
ber on the amounts of [drugs] he was purchasing and resell‐
ing.” Id. (alterations omitted) (quoting Johnson, 342 F.3d at
734). Together, this evidence provides more than a sufficient
basis for the court’s finding.
We cannot accept Mr. Thurman’s contention that the
court’s reliance on Williams’s testimony violated his “due
process right to be sentenced on the basis of accurate infor‐
mation.” Bozovich, 782 F.3d at 817 (quoting Ben‐Yisrayl v. Buss,
540 F.3d 542, 554 (7th Cir. 2008)). He emphasizes that Wil‐
liams has a prior conviction for giving false testimony to po‐
lice and was motivated to curry favor with the authorities for
No. 17‐1598 23
his own benefit. However, “a sentencing judge is free to credit
testimony that is ‘totally uncorroborated,’ ‘comes from an ad‐
mitted liar, convicted felon, large scale drug‐dealing, paid
government informant,’ or ‘self‐interested co‐conspirator.’”
United States v. Isom, 635 F.3d 904, 908 (7th Cir. 2011) (altera‐
tions omitted) (quoting Johnson, 489 F.3d at 797). We therefore
cannot say that the district court was clearly erroneous in
crediting Williams’s testimony when it was corroborated by
surveillance records and by Mr. Thurman’s own admission.
Notably, the court declined to increase the drug quantity
based on Williams’s uncorroborated testimony to the grand
jury. This selectivity shows that the court was adequately
skeptical of Williams’s claims and relied on only information
with sufficient indicia of reliability. We do not see any error,
let alone clear error, in the drug‐quantity finding. Thus, the
court properly applied U.S.S.G. § 2D1.1(c)(6)15 to calculate
Mr. Thurman’s base offense level.
2.
Mr. Thurman’s challenge to the firearms enhancement
fares no better. He contends that the district court erred in ap‐
plying an enhancement for possession of a dangerous
weapon given the jury’s previous acquittal on the firearms
charge. Despite the jury’s acquittal, the court found that
Mr. Thurman was in constructive possession of two firearms
in connection with the drug offense. Both handguns were
15 Section 2D1.1(c) contains the Drug Quantity Table, which sets forth a
base offense level of 28 for “[a]t least 700 G but less than 1 KG of Heroin.”
U.S.S.G. § 2D1.1(c)(6).
24 No. 17‐1598
found during the execution of the search warrant. A .40 cali‐
ber Glock was enclosed in a box in a trash bag filled with
books in the basement; a .380 caliber Bryco was stored in a box
in a closet upstairs. Both guns either were loaded or had
loaded magazines nearby. We review the district court’s find‐
ing of a relationship between the weapons and the drug of‐
fense for clear error. United States v. Perez, 581 F.3d 539, 546
(7th Cir. 2009).
Mr. Thurman maintains that the court’s consideration of
acquitted conduct violates his Sixth Amendment right to be
tried by a jury. He acknowledges the Supreme Court’s opin‐
ion in United States v. Watts, which allows a sentencing court
to consider conduct of which a defendant was acquitted at
trial if the Government can prove that conduct by a prepon‐
derance of the evidence. 519 U.S. 148, 157 (1997) (per curiam).
Nevertheless, he insists that “Watts is teetering on the brink
of being overruled”16 based on the Court’s subsequent deci‐
sions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543
U.S. 220 (2005).
Mr. Thurman’s position clearly is foreclosed by the Su‐
preme Court’s opinions and our circuit precedent. In Watts,
the Supreme Court upheld a district court’s application of the
firearms enhancement at issue here despite the jury’s acquit‐
tal on the same firearms charge that Mr. Thurman faced. The
Court explained that its decision did “not punish a defendant
for crimes of which he was not convicted, but rather in‐
crease[d] his sentence because of the manner in which he
committed the crime of conviction.” Watts, 519 U.S. at 154.
16 Appellant’s Br. 37.
No. 17‐1598 25
Although the Court’s due process and Sixth Amendment ju‐
risprudence has evolved by way of Apprendi, Blakely, and
Booker, it has not overruled Watts. See United States v.
Waltower, 643 F.3d 572, 576 (7th Cir. 2011) (noting that “Booker
itself suggests that Watts is still good law”). Accordingly, we
have rejected challenges based on this line of cases and reiter‐
ate that “[i]f Watts is infirm, it must be based on a more direct
attack—not Apprendi and its progeny.” Id. at 577. Because we
are bound by Watts, we must reject Mr. Thurman’s Sixth
Amendment challenge.
Mr. Thurman next contends that even within the frame‐
work of Watts, the court erred in finding that he possessed a
dangerous weapon under U.S.S.G. § 2D1.1(b)(1).17 He empha‐
sizes that the two handguns were not within the immediate
vicinity of his drug operations, such that he did not exercise
control over them for purposes of constructive possession. He
also notes that he procured the guns many years earlier for
reasons unrelated to drug sales. According to Mr. Thurman,
this shows the inapplicability of the enhancement, which is
meant to account for “the increased danger of violence when
drug traffickers possess weapons.” U.S.S.G. § 2D1.1(b)(1) cmt.
n.11.
Application note 11 for U.S.S.G. § 2D1.1 lays out the rele‐
vant framework. It provides that the enhancement “should be
applied if the weapon was present, unless it is clearly improb‐
able that the weapon was connected with the offense.” Id. We
have construed this provision as imposing a twofold burden.
17 Section 2D1.1(b)(1) instructs courts to increase the base offense level by
two “[i]f a dangerous weapon (including a firearm) was possessed.”
U.S.S.G. § 2D1.1(b)(1).
26 No. 17‐1598
First, the Government must prove by a preponderance of the
evidence that the defendant possessed a weapon either actu‐
ally or constructively, meaning he “had the power and the in‐
tention to exercise dominion or control of the firearm.” United
States v. Morris, 836 F.3d 868, 872 (7th Cir. 2016) (quoting
United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005)). If the
Government satisfies this burden, then the defendant must
show that it is “clearly improbable [that] he possessed the
weapon in connection with the drug offense.” Id.
Based on our case law, it is clear that the Government sat‐
isfied its burden. We have stated repeatedly that “guns found
in close proximity to drug activity are presumptively con‐
nected to that activity.” United States v. Bothun, 424 F.3d 582,
586 (7th Cir. 2005) (quoting United States v. Corral, 324 F.3d
866, 873 (7th Cir. 2003)). “This includes proximity to drug par‐
aphernalia, such as a scale.” United States v. Rea, 621 F.3d 595,
606 (7th Cir. 2010). In Rea, the defendant was convicted of con‐
spiring to distribute methamphetamine, and the district court
applied the § 2D1.1(b)(1) enhancement based on three fire‐
arms discovered in the defendant’s house: one in the hall
closet and two in separate bedrooms. The authorities also
found a large amount of cash in the living room and a scale in
the bathroom; however, they did not find any drugs in the
house. Id. at 606. We held that the Government met its burden
based on the proximity of the weapons to the drug parapher‐
nalia along with the defendant’s admission that he dealt
methamphetamine in large quantities. Id. at 607; see also
United States v. Are, 590 F.3d 499, 527–28 (7th Cir. 2009) (up‐
holding application of firearms enhancement when guns
were found in a safe with $20,000 of apparent drug money in
the home of a large‐scale cocaine dealer); United States v.
Smith, 308 F.3d 726, 746 (7th Cir. 2002) (affirming application
No. 17‐1598 27
of enhancement when guns were discovered in the defend‐
ant’s home with $100,000 of likely drug money).
Our decisions in Rea, Are, and Smith demonstrate the futil‐
ity of Mr. Thurman’s argument. In order to establish construc‐
tive possession, the Government did not need to show that
the guns were within his immediate reach. Both of Mr. Thur‐
man’s guns were kept in the house from which he distributed
large quantities of heroin. One gun was kept in a closet, simi‐
lar to the scenario in Rea, and the other gun was kept in close
proximity to the safe where Mr. Thurman stored large
amounts of ostensible drug money, much like the situation in
Are. The hidden location of the latter gun in a packed trash
bag does not undermine the district court’s finding of con‐
structive possession. See Perez, 581 F.3d at 547. Nor does the
fact that the guns may not have been loaded. Id. (applying en‐
hancement based on a gun discovered with ammunition in
the same room). Regardless of whether Mr. Thurman initially
procured the guns for reasons unrelated to his drug trade,
their locations relative to his drug paraphernalia and admit‐
ted transactions sufficiently indicate their connection to his
present offense. Therefore, the Government satisfied its bur‐
den of proving that Mr. Thurman constructively possessed
the guns. Mr. Thurman then failed to meet his burden of
showing that it is “clearly improbable” that he possessed the
guns in connection with the drug offense. Indeed, when ques‐
tioned by authorities, Mr. Thurman admitted that he had both
guns to protect his drug trade. There is no doubt that he failed
to meet his burden. Accordingly, the district court did not
commit clear error in applying the firearms enhancement.
28 No. 17‐1598
Conclusion
The district court properly denied Mr. Thurman’s motions
to suppress. The court’s decision rests on its finding that the
agents were credible. It was entitled to make that finding. The
record before us supports the conclusions that Mr. Thurman
voluntarily waived his Miranda rights and voluntarily con‐
sented to the search of his cell phone, including the forensic
examination.
Mr. Thurman’s challenges to his sentence also must fail.
All of his arguments rely on a misconception of the district
court’s sentencing prerogative. The court was entitled to con‐
sider evidence proven by a preponderance of the evidence,
and the record adequately supports its findings. Accordingly,
the judgment is affirmed.
AFFIRMED