In the

United States Court of Appeals

For the Seventh Circuit

Nos. 09-1079, 09-1276 & 09-1308

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KATRICE ETCHIN, ALBERT M. COLE, and

MAURICE BOWMAN,

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.

ARGUED SEPTEMBER 16, 2009—DECIDED AUGUST 4, 2010

Before CUDAHY, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. Maurice Bowman, Albert Cole,

and Katrice Etchin pleaded guilty to drug crimes after

participating in an operation run by Bowman that supplied crack cocaine to street dealers in Madison, Wisconsin. 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 untainted by the officers’ illegal behavior. We therefore

conclude that the district court properly denied the defendants’ 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 girlfriend 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 apartment was left over from a batch he purchased from Bowman 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 bathroom 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 unsuccessful 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 identified 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 warrant, 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. Instead, they waited while Detective Wegner prepared an

affidavit recounting the investigation up to that point.

Four hours after the officers had entered Etchin’s apartment, 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 cupboard 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 reasonable 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 government has endorsed the position that exigent circumstances 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 everything 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 immediately . . . ; 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 destroyed” 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 happened, 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 warrant.” 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 apartment 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 fourhour occupation of Etchin’s apartment did not add anything 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 unreasonably 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 premises, and with probable cause, arrest the occupants who have legitimate possessory interests in

its contents and take them into custody and, for no

more than the period here involved, secure the premises 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 Amendment’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 statements; 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 supporting 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 information 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 quantities 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 circumstances, 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 payments 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 establishing 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 supported by probable cause.

2. The Search of Etchin’s Apartment. With that established, 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 laterarriving warrant is based on information “wholly unconnected” 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 unconnected” 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 subsequent 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 suggests 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 apartment.” 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 anything 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 application 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 paragraph 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] question is whether, taking away any illegally obtained information, 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 twoday 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 sentences 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 possesses 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 defendants’ 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 Bowman 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 testifying. 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 government 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 Bowman 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 supported 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 government’s witnesses made up facts about him, but he presented 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 “voluntary 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 enhance his sentence under § 3C1.1 for obstructing justice. “[A] defendant whose sentence was properly enhanced for obstruction of justice is presumed not to

have accepted responsibility.” United States v. GonzalezMendoza, 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 wellknown 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 discretion 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 sentence 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 guidelines 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 warranted (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 position 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 disparity 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 AFFIRM the judgments of the district court with

respect to all three defendants.

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