### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ No. 15-1792

U NITED S TATES OF A MERICA , Plaintiff-Appellee

,

v.

B RUCE J ONES , Defendant-Appellant

.

____________________
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
No. 1:12-cr-00072-TWP-DML-1 — Tanya Walton Pratt

, Judge

.

____________________

A RGUED S EPTEMBER 8, 2016

— D ECIDED D ECEMBER 21, 2016

____________________

Before W OOD , Chief Judge , and K ANNE and H AMILTON , Circuit Judges

.
H AMILTON , Circuit Judge . This appeal in a criminal case presents an unusual combination of offenses: health care fraud and unlawful possession of firearms and ammunition. Defendant Bruce Jones was both a family counselor and a firearms enthusiast who collected dozens of guns and thousands of rounds of ammunition. Jones had a prior felony conviction,2 No. 15-1792

so it was a federal crime for him to possess firearms and ammunition. The FBI discovered these weapons while investigating Jones for allegedly fraudulent health care billing. A federal grand jury charged Jone s with three counts of possessing firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and one count of health care fraud in violation of 18 U.S.C. § 1347. The district cour t bifurcated the case for separate trials on the firearms charges and the health care fraud charge. The juries convicted Jones on all counts. The district court sentenced Jones to 90 months in prison on his fraud conviction and 100 months on each felon-in-possession conviction, with all terms to be served concurrently.
Jones appeals and raises four distinct issues. First, he contends that the ex parte pretrial restraint of certain life insurancepolicies violated his Fifth and Sixth Amendment rights. Second, he argues that the distri ct court erroneously denied hisrequest for new counsel during his fraud trial. Third, he contends that he was denied the opportunity to testify at his fraud trial. Fourth, he challenges the court’s sentencing guideline computation. We affirm in all respects.

I. Pretrial Restraint of Assets
Jones first challenges the pretri al restraint of six life insurance policies titled in his name. The government listed these policies in a forfeiture allegation in the controlling, second superseding indictment. On April 15, 2014, following Jones’s conviction on the felon-in-po ssession charges but before his fraud trial, the government filed an ex parte application under 28 U.S.C. § 2461(c) and 21 U.S.C. § 853(e)(1)(A) to restrain those policies in anticipation of post-conviction forfeiture. The district court entered a restraining order that same day. Jones contends that the pretrial restraint violated his SixthNo. 15-1792 3

Amendment right to hire coun sel of choice and his Fifth Amendment right to due process of law.
Ordinarily, we review de novo questions of constitutional
law. See Anderson v. Milwaukee County , 433 F.3d 975, 978 (7th Cir. 2006). But there is a wrinkle here: Jones did not object at the time that his life insurance policies were restrained. Nor did he raise an objection at any point during the district court proceedings even though the restraining order invited him to “petition for a pre-trial hearing if he can demonstrate that he
has no other assets available with which to retain counsel” or
if he could show that the rest rained policies were “not subjectto forfeiture.” Where a defendant fails to lodge a timely objection before the district court, we review only for plain error, assuming the defendant has not actually waived the point.
See United States v. Bickart , 825 F.3d 832, 837 (7th Cir. 2016) (“To demonstrate plain error, defendants must show: (1) an error or defect, (2) that is clear or obvious, (3) affecting the defendants’ substantial rights. Even then, we have discretion
to correct the error if it seri ously impugns the fairness, integrity, or public reputation of the judicial proceedings, but we need not do so.”) (citations omitted).

To excuse his failure to raise th is issue in the district court, Jones argues that the legal landscape shifted while his appealwas pending, creating an analytical path that was not available to him in 2014. Specifically, Jones points to Luis v. United
States , 578 U.S. —, 136 S. Ct. 1083 (2016). In Luis , the Supreme Court held that the “pretrial restraint of legitimate, untainted

assets needed to retain counsel of choice violates the Sixth
Amendment.” Id. at 1088 (plurality opinion) (emphasis added); see also id. at 1096 (Thomas, J., concurring in the judg-4 No. 15-1792

ment) (agreeing with plurality that a “pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice”) . In so holding, the plurality distinguished two earlier cases in which the Court had found no Sixth Amendment defect in forfeiture proceedings. Id. at 1090–91 (plurality opinion). Compare Caplin & Drysdale, Chtd.
v. United States , 491 U.S. 617 (1989) (post-conviction forfeiture that deprived defendant of funds he would have used to pay attorney did not violate Sixth Amendment because, pursuant to statute, title to funds vested in United States upon defendant’s commission of crime), with United States v. Monsanto , 491 U.S. 600 (1989) (pretrial restraint that deprived defendant of
tainted assets traceable to crime likewise did not violate Sixth Amendment).

In Luis , unlike Caplin & Drysdale and Monsanto , the restraining order prevented the defendant from using her own

un tainted funds to hire counsel. Luis , 136 S. Ct. at 1090 (plurality opinion). The government’s interest in Luis’s untainted funds was similar to that of an unsecured creditor, who “someday might collect from a debtor’s general assets” but “cannot be said to have any present claim to, or interest in, the debtor’s property.” Id. at 1092. Citing Luis , Jones argues that the government now bears the bu rden to demonstrate at the
outset that the assets it wants to restrain are tainted.
Jones may read Luis too expansively. Luis says nothing about timing or burden shifti ng. On the contrary, the government in that case conceded that the district court had restrained untainted funds. Id. at 1088. But even assuming without deciding that Jones’s interpretation of Luis is correct, that case would have offered Jones at best an additional line of at-No. 15-1792 5

tack on the district court’s re straining order. Under long-settled circuit law, the pretrial restraint of a defendant’s assets “without affording the de fendant an immediate, postrestraint, adversary hearing at which the government is required to prove the likelihood that the restrained assets are subject to forfeiture violates th e due process clause to the extent that it actually impinges on the defendant’s qualified sixth amendment right to counsel of choice.” United States v. Moya-Gomez , 860 F.2d 706, 731 (7th Cir. 1988). 1 If the district
court finds that the defendant has insufficient alternative assets with which to pay counsel, but the government fails to justify its retention of all the frozen assets, “then the court must order the release of funds in an amount necessary to pay reasonable attorneys’ fees for counsel of sufficient skill and experience to handle the particular case.” Id. at 730.
Assuming that Jones’s life insurance policies were not tainted by his fraud, and assumi ng further that he genuinely needed those assets to retain counsel, we cannot understandwhy he failed to invoke his right to an immediate hearing under Moya-Gomez . Conversely, if the life insurance policies were tainted, or if Jones had sufficient alternative assets available

1 Jones argues that a post-restraint hearing is insufficient and that he should have been afforded a hearing prior to the restraint on his property. We have twice declined to decide whether a pre-deprivation hearing is necessary in this context, see United States v. Phillips , 434 F.3d 913, 916 (7th Cir. 2005) (per curiam); United States v. Kirschenbaum , 156 F.3d 784, 793 (7th Cir. 1998), and the Supreme Court has likewise declined to decide the question, see Monsanto , 491 U.S. at 615 n.10. We again decline to consider the question here. As explained below, Jones has not shown a bona fide
need for the restrained assets. Thus, as in Phillips , this case presents an “inadequate vehicle by which to consider the issue,” 434 F.3d at 916.6 No. 15-1792

to him, then Luis would not have strengthened his litigating position. Either way, we find no plain error.
In addition to a due process argument under Moya-Gomez

, Jones could have presented a statutory argument based on the language of 21 U.S.C. § 853(e). The overwhelming majority ofcourts to consider the question have held that § 853(e) “conveys Congress’s intent to authorize the restraint of tainted assets prior to trial, but not the restraint of substitute assets.”
United States v. Parrett , 530 F.3d 422, 431 (6th Cir. 2008); see also, e.g., United States v. Jarvis , 499 F.3d 1196, 1204 (10th Cir. 2007) (“[A]ll but one federal court of appeals to address theissue has determined the legislative silence regarding substitute property in § 853(e) preclude s pre-conviction restraint of substitute property.”).
Jones points out that the government’s ex parte motion asserted there was probable cause to believe that his life insurance premiums and contributions “constitute or derived from proceeds obtained from the health care fraud, or represent a substitute asset , and are therefore subjec t to forfeiture.” Jones also notes that the government cited In re Billman , 915 F.2d 916, 921 (4th Cir. 1990), which held that a similar forfeiture statute, 18 U.S.C. § 1963, authoriz es pretrial restraint of substitute assets. But we have never held as much. No controllingprecedent barred Jones from asking the district court to construe § 853(e) as applying only to tainted assets, an argument
that at least one district court in this circuit has accepted. See
United States v. Toran , No. 13-30072, 2015 WL 1968698, at *7 (C.D. Ill. May 1, 2015).
Thus, Jones could have advanced a constitutional argument, a statutory argument, or both in response to the re-No. 15-1792 7

straining order. Any one of these approaches could have delivered the same relief he believes he might have obtained under Luis . Jones forfeited his challenge to the restraining orderby failing to object in the district court, so we review that order only for plain error.
We find no plain error. Nothing in the record tends to show that the life insurance policies were not tainted by Jones’s fraud. Further, it is un clear whether Jones even needed the life insurance policies to retain counsel. 2 A presentence investigation report prepared in December 2013 estimated Jones’s net worth (exclusive of the insurance policies) at over half a million dollars. Granted, mo st of that net worth was attributable to real estate, and the government apparently filed
notices of lis pendens against some of Jones’s properties. But a lis pendens notice does not deprive real estate of all marketable value; it simply places successors in interest on notice of a potential competing claim. Further, it appears that at least two
of the lis pendens notices were lifted in August 2014, well in advance of Jones’s fraud trial.
In any event, because Jones never objected to the restraint on his life insurance policies, th e district court had no reason to probe these matters in an ev identiary hearing. The district court committed no plain error by entering the pretrial restraining order, which invited Jones to challenge it promptly if he thought there were grounds to do so. Having failed to do so, Jones is not entitled to re lief based on his first argument.

2 It is also unclear whether Jones could have simply liquidated those policies at will.8 No. 15-1792

II. Request for Substitute Counsel
Jones next argues that the dist rict court improperly denied his request for new counsel during his fraud trial, which was the second of the two. He had an opportunity to explain his reasons for requesting substitute counsel, so we review the
district court’s denial for abuse of discretion. United States v.
Harris , 394 F.3d 543, 551 (7th Cir. 2005). We consider such factors as the timeliness of the de fendant’s motion, the adequacy of the district court’s inquiry into the motion, and whether the conflict resulted in a total lack of communication preventing an adequate defense. Id. at 552. No single factor is dispositive.
If we find an abuse of discret ion, we may nevertheless uphold
the district court’s decision “u nless the defendant establishesthat he was deprived of his Sixth Amendment right to effective assistance of counsel.” United States v. Bjorkman , 270 F.3d 482, 500 (7th Cir. 2001).
The record shows that Jones had a rocky relationship with his appointed attorney, Mark Inman, who is an experienced criminal defense lawyer in federal cases. Despite that rocky relationship, we conclude that the district judge did not abuse her discretion in denying Jones’s request for substitute counsel. We do not reach the separate question whether Jones’s Sixth Amendment right was compromised.
Turning to the three factors identified in Harris , we consider first the timeliness of Jones’s request. Jones asked for a new lawyer three weeks before his fraud trial was scheduled to begin. Three weeks is not much time to prepare for such a
trial. We assume that if the di strict court had appointed a new lawyer an immediate request for a continuance would have been expected. Even so, we have previously recognized that requests for new counsel submitted several weeks before aNo. 15-1792 9

critical proceeding may be timely under the circumstances. Compare United States v. Zillges , 978 F.2d 369, 372 (7th Cir.1992) (request made one month before trial did not “represent[] a tactic to secure a continuance on the eve of trial”), and United States v. Ryals , 512 F.3d 416, 419 (7th Cir. 2008) (requestthree weeks before sentencing hearing was timely, particularly where breakdown in communication between attorney and client did not occur until after trial), with United States v.
Hall , 35 F.3d 310, 313–14 (7th Cir. 1994) (request after defendant pled guilty and just ten da ys before sentencing hearing appeared to be an “effort to derail the sentencing that was fast approaching”), and United States v. Burgos , 539 F.3d 641, 646 (7th Cir. 2008) (request on morning of trial came too late).
The second factor—adequacy of the inquiry—weighs inthe government’s favor. After receiving Jones’s letter, the district judge referred the matter to a magistrate judge for a hearing. During that hearing, the magistrate judge gave Jones an opportunity to explain his concerns. The magistrate judge also heard from attorney Inman and from the government. In denying Jones’s request, the magistrate judge explained that Jones’s dispute with his lawyer primarily concerned trial strategy and that such disputes are insufficient grounds for replacement of appointed counse l. Jones renewed his request
a week later. The district judge held an ex parte session in which Jones explained his complaints about Inman. At the end of the session, the judge denied Jones’s renewed request. After the fraud trial but before sentencing, Jones asked oncemore for a new lawyer. The district judge delegated the request to a different magistrate judge who heard from both Jones and Inman in a January 2015 hearing. The magistrate10 No. 15-1792

judge denied Jones’s third request, noting that he found Inman’s representations “entirely credible” and that Jones failed to demonstrate either deficient representation or prejudice.
While Jones may disagree with the judges’ conclusions, he had ample opportunity to present his concerns to the district court. In this respect, Jones’s case is unlike cases where we have found insufficient inquiries into requests for substitute counsel. See, e.g., Ryals , 512 F.3d at 419–20 (inquiry insufficient where judge asked attorney just two questions and attorney said unequivocally that he could not represent defendant adequately at sentencing); Zillges , 978 F.2d at 371–72 (inquiry insufficient where judge ignored defendant’s letter until morning of trial and then faile d to ascertain why defendant was unhappy with attorney); United States v. Morrison , 946 F.2d 484, 498–99 (7th Cir. 1991) (inquiry insufficient where judge denied defendant’s motion without holding a hearing). Here, the district judge and th e two magistrate judges “listened to [defendant’s] concerns , and responded thoughtfully and appropriately.” Bjorkman , 270 F.3d at 501. The inquiry was adequate here.

The third factor, the nature of the conflict between attorney and client, gives us pause. Jones points to two defects in his relationship with Inman: (1) a breakdown in their communication, and (2) a series of incidents in which Inman portrayed Jones in a negative light to the court.

As to the communication breakdown, Jones identifies letters that he sent Inman during the months leading up to trial.These letters show that Jones was not satisfied with the attention he was receiving. On September 24, for instance, Jones complained that Inman had visite d him just four times during a six-month period, while on October 9, he wrote that Inman’sNo. 15-1792 11

“ten minute visit” that day was not what Inman had promised. We hesitate to place too much importance on Jones’s letters, which show that Jones harbored unrealistic expectations about his attorney’s obligations . For example, in the September 24 letter, Jones directed Inman to answer “immediately” twenty-seven written questions. He made similar demands on October 3 and again on Octo ber 9. Jones also referred to a fourteen-page letter that appare ntly contained directions for
Inman to follow. While an atto rney “undoubtedly has a dutyto consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy,” Florida v.
Nixon , 543 U.S. 175, 187 (2004) (citat ion omitted), the attorney also has the “full authority to manage the conduct of the trial”and need not consult with the client on “every tactical decision,” Taylor v. Illinois , 484 U.S. 400, 418 (1988). It is difficult on
the face of this record to determine whether the conflict between Inman and Jones at that point involved a true breakdown in communication or si mply a mismatch of expectations.
By the time of trial, however, the relationship between thetwo had grown quite strained. Inman made a series of remarks to the court that reflected his frustration with his client. At a hearing on October 20, Jones complained to the court that Inman had “never gone over the defense” with him. Inman disagreed, telling the judge that Jones’s statement was “just not true” and adding that Jones was “incapable of telling the truth.” On October 27, Jones to ld the court that Inman had
said he would face a consecutive sentence if he testified. Inman again disagreed, saying that Jones “can’t tell ... the truth.” At a hearing during th e sentencing phase, Inman recounted Jones’s conduct during his first trial, saying that Jones
had “faked a heart attack” and “concocted a defense.” Such12 No. 15-1792

statements, accurate though they were, obviously cast doubt on the viability of the attorney-client relationship.

These matters are left to the so und discretion of the district judge, however, because she was much closer to the friction between client and attorney and to its larger context in the case. Despite the obvious tension between Inman and Jones,
we find no abuse of discretio n here. The record shows that Jones had engaged in a prolonge d pattern of obstructionistbehavior. Against that backdrop, the district judge could reasonably have inferred that Jones’s request for a new lawyerwas yet another attempt to delay justice. In fact, prior to Inman’s appointment as his lawyer, Jones had cycled throughthree other attorneys or legal teams during just the adversarial stage of the proceedings. He had also requested multiple delays for the first trial, on th e firearms charges. Then, on the morning trial was set to begin, Jones failed to appear. He had
taken a cocktail of medications that caused him to lose consciousness. The scheduled trial had to be delayed again.
At Jones’s first sentencing hearing, in imposing a two-level enhancement for obstruction, the district judge said thatJones, a certified addiction specialist, was “very much familiar with the effects of the cockta il of medications that he consumed: sleeping pills, muscle relaxer, and benzodiazepine. And even a lay person would kn ow that taking that combination would make you incapacitated the morning of your jury trial.” Later, in denying Jones’s request for a new lawyer, thedistrict judge linked her decision to Jones’s long pattern of obstructionist behavior:

The Court has considered the timeliness of Defendant’s eleventh hour request to change CJA counsel, the extent of any conflict or breakdownNo. 15-1792 13

in communication between lawyer and client[](including the client’s responsibility for any conflict), the number of attorneys who have been assigned to this Defend ant, and the pattern of engaging in intentional delay and manipulationby the Defendant. The Court finds that the interest of justice does not dictate a substitution of
counsel ... .
Given the history of the case, including Jones’s pattern of delay and obstruction, the district judge did not abuse her discretion in denying Jones’s request for appointment of yet another lawyer.

III. Waiver of the Right to Testify
Moving on to the fraud trial itself, Jones argues that the district court deprived him of his right to testify on his ownbehalf. Whether a defendant’s right to testify has been infringed is a mixed question of law and fact that we review de

novo , though we review the district court’s underlying factual findings for clear error. United States v. Stark , 507 F.3d 512, 516 (7th Cir. 2007).
A few constitutional rights of the accused are so fundamental that they are deemed pe rsonal to the accused, and “he alone may decide whether these rights will be exercised or
waived.” United States v. Curtis , 742 F.2d 1070, 1076 (7th Cir. 1984). These rights include the decisions whether to plead guilty or proceed to trial; whether to be tried by judge or jury; whether to appeal an adverse verdict; whether to forgo the assistance of counsel; and, as re levant here, whether to testify.
Id.14 No. 15-1792

Jones says that he never clearly and unequivocally waived his right to testify. He adds that he “repeatedly affirmed to thedistrict court that he wanted to testify” but that attorney Inman “refused to let him testify, preventing him from exercising this constitutionally guaran teed right.” Based on our review of the record, we disagree. The district judge correctly found that Jones waived his right to testify. The judge engaged in three colloquies with Jones on the subject. While Jones’s responses during the first two colloquies were ambiguous, his third response was an unequivocal waiver.
On the second day of trial, shortly after the government rested, the judge asked defens e attorney Inman whether he planned to present any evidence. Inman said no. The judge then asked Jones whether he wished to testify. Jones’s answer was ambiguous: he said that Inman would not ask him any of the questions that he had prepare d, “so it would do no good.”Inman said that he was “well within [his] ethical and professional obligations in making th is call,” but the district judge stated that it was still up to Jones whether he wished to testify. Even in a situation where a criminal defense lawyer suspects that his client might testify untruthfully, the lawyer cannot simply bar his client from testifying on his own behalf. 3
The judge next conducted an ex parte colloquy during which Jones’s response was again ambiguous:

3 The conflict between a criminal defense attorney and an accused who the attorney knows intends to testify falsely poses one of the oldestand most intractable problems in professional ethics. Indiana Rule of Professional Conduct 3.3, which applies in the Southern District of Indiana, addresses the problem. The comment to the rule suggests some solutions,including allowing the client to testify in narrative form, but does not provide guidance that is clear in all scenarios.No. 15-1792 15

THE COURT: Mr. Inman ... can’t ask you any questions that would elicit what he believes would be perjurious testimony.

THE DEFENDANT: I wouldn’t—I wouldn’t expect him to, but I see that he’s not going to do it,
so I have no choice but to stand down.
THE COURT: And take your attorney’s advice, which is fine, okay? I just need to feel confident
that—

INMAN: Your Honor, I think with that, we’re prepared to go forward.
THE COURT: Okay. Okay.
THE DEFENDANT: But I wasn’t lying, nor would I lie. Thank you, Your Honor.
This ambiguous exchange did not resolve the matter. Later that afternoon, the district ju dge inquired again and got another ambiguous answer:
THE COURT: Now, your lawyer has strongly
stated that he does not believe it would be toyour benefit, tactically and strategically, to testify, but you’ve got to tell me that you agree with
that.

THE DEFENDANT: But, Your Honor, the issue I have is, I can’t testify if I—we haven’t gone over any questions. I mean, there’s a lot of things
that could be—
THE COURT: Well, you don’t necessarily have to go over any questions. Your lawyer ... knows what questions to ask.16 No. 15-1792

.... THE DEFENDANT: Your Honor, I bow to your—I mean, you’re the boss. I respect you and I respect your position.
THE COURT: All right.
THE DEFENDANT: Thank you, ma’am.
THE COURT: And I respect your position, also, okay? So you’re going to concede to the advice of your counsel and not testify. ...
INMAN: Thank you, Your Honor.
Those first two colloquies were not sufficient to show that Jones himself was personally waiving his right to testify. If the judge had not tried a third time , Jones’s argument on appeal would have considerably greater force. But the judge wisely inquired again on the final morning of trial:

THE COURT: First of all, Mr. Inman ... the Court needs to be comfortable that your client is
comfortable with his waiv er of his right to testify. And you’ve talked with him about that?

INMAN: We have, Your Honor. We’ve talked this morning.
THE COURT: And, Dr. Jones, are you comfortable with your decision?

THE DEFENDANT: Yes.
Against the background of the two earlier discussions, Jones’s unqualified “yes” answer during the third colloquy was anunequivocal waiver of his right to testify. It is helpful to contrast those rare cases in which we have found invalid waivers.No. 15-1792 17

For example, in Ward v. Sternes , 334 F.3d 696, 700 (7th Cir. 2003), the defendant answered th e court’s question whether he agreed that it was a good decision not to testify by stating: “I guess. I don’t know.” That ambiguous response was all the less reliable because the defendant suffered from aphasia, a condition that manifested in a disconnect between questions
asked and answers received. Id. at 698. And in Ortega v. O’Leary , 843 F.2d 258, 260 (7th Cir. 1988), the defendant twiceinterrupted the proceedings and expressed his desire to testify. The trial judge ordered the defendant to remain silent. On further inquiry, defense counsel stated that a “joint decision
had been made” that the de fendant would not testify. Id. The defendant protested, but the court treated the evidence as closed and allowed the case to proceed to closing arguments.
This case is readily distinguishable from Ward and Ortega

. Unlike Ward , there is no evidence in this record tending toshow that Jones suffered from any physical or mental impairment that might have comp romised his waiver. Unlike Ortega

, the district judge here made cle ar that the decision whether to testify was ultimately up to Jones, and she asked three times to ensure that his waiver was knowing and voluntary. And
unlike both Ward and Ortega , Jones’s answer during the final colloquy—a simple “yes”—was clear. See Ward , 334 F.3d at 707 (“direct, unequivocal answer to a trial court’s colloquy will suffice to find a knowing, intelligent waiver”). Given the choice, Jones elected not to testify at his fraud trial. Apprised of his constitutional right, he waived it.

IV. Sentencing Guidelines Calculation
Finally, Jones contends that the district court miscalculated the sentencing guideline range for his firearms offenses by improperly taking account of his 1985 felony conviction for18 No. 15-1792

a controlled substance offense. We review de novo the district court’s legal interpretations of the Sentencing Guidelines, though we review its factual findings for clear error. United
States v. Saunders , 826 F.3d 363, 372 (7th Cir. 2016).
In applying the Guidelines for Jones’s fraud conviction, the district judge computed a ba se offense level of six with a
ten-level enhancement for the loss amount and a two-level enhancement for abuse of trust, re sulting in an adjusted offense level of 18. In applying the Guid elines for Jones’s felon-in-possession convictions, although the base offense level would ordinarily be 14, the district judg e used a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). That section provides for an enhancement where the “defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substanceoffense.” The judge added six levels for the number of firearms involved in the offense and two levels for obstruction of justice, resulting in an adjusted offense level of 28. The judgeused this second adjusted offense level as the combined adjusted offense level for both o ffense groups. With three criminal history points, Jones was in criminal history category II, which resulted in a guideline range of 87 to 108 months in prison. The judge ultimately se ntenced Jones to 90 months on
the fraud count and 100 months on each felon-in-possession count, all terms to be served concurrently.
Jones argues that the districtjudge should have disregarded his 1985 conviction. Under U.S.S.G. § 2K2.1 cmt. n.10and §§ 4A1.1 and 4A1.2, there is a fifteen-year lookback period for prior felony conviction s. See § 4A1.2(e)(1) (“Any prior sentence of imprisonment exceeding one year and one monthNo. 15-1792 19

that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and onemonth, whenever imposed, that resulted in the defendant being incarcerated during any pa rt of such fifteen-year period.”). Because Jones was released from state custody in October 1988, the “instant offense” must have commenced no later than October 2003 to bring th e prior conviction within its scope. Yet the controlling indict ment charged that Jones possessed firearms and ammunition between March and June 2010, over 21 years after he was released from state custody. 4
While the indictment charged only conduct occurring in2010, the evidence introduced at trial showed that Jones possessed weapons and ammunition much earlier. For instance, the government introduced a 1996 prenuptial agreement signed by Jones and Larissa Co roban, his then-fiancée. The document described Jones’s assets as including fifteen pistols,nine shotguns, and fourteen rifles. The government also introduced a document drafted by Jones in 2001 titled “Transfer,Receipt, and Agreement of Firearms.” Through this document, Jones purported to transfer to Ms. Coroban certain weapons that a friend had been holding on his behalf. Jones implied that he had owned these weapons since before his 1985 conviction; he said that he was advised to “write this up

4 Although the parties disagree about exactly which guideline range would have applied if the district ju dge had excluded the 1985 conviction from her computation, any range would have been significantly lower
than the one used. With a base offense level of 14 instead of 20 and criminal history category I—assuming th e same enhancements for firearmquantity and obstruction of justice—Jones’s guideline range for his firearms offenses would have been 41 to 51 months in prison, less than half the range that the district judge used.20 No. 15-1792

so no one would make trouble over [his] owning them.” He also asked Ms. Coroban not to sell three of the guns until after his death, a detail that the district judge later highlighted as evidence of possession.
Additional evidence supports an inference that Jones continuously possessed firearms fr om at least 1996 (and likely much earlier) up through and including the charged period. For example, the government in troduced a “Financial Balance Sheet” that Jones apparently drafted in April 2009. It valued Jones’s “Gun Collection/Ammo” at that time at $35,000. The government also introduced a 2009 e-mail in which Jones toldhis brother about his large gun collection. During the FBI investigation in 2010, agents recovered dozens of weapons and
thousands of rounds of ammunition from Jones’s residence, his treatment lodge, and his cabin in Roundup, Montana. Theevidence seized at the Montana cabin was especially inculpatory, as Ms. Coroban testified that she had never visited the cabin. Two of the guns recovered from the cabin were listed on an inventory sheet that invest igators also seized: that sheet listed appraisal values dating to 1983. A Colt .45 caliber “Gold Cup” pistol recovered from Jones’s treatment lodge in Indiana matched the description of a gu n Jones testified that he carried in the 1970s.
In light of all this evidence, the district judge found an “ongoing series of weapon possessi on by a prohibited person.” She added that Jones’s “possession and acquirement of his massive gun collection ... took place over decades.” Thesefindings are not clearly erroneous. Jones continuously possessed weapons beginning no later than 1996 and probably much earlier. Thus, while the indictment charged unlawful possession in 2010, the continuous course of conduct givingNo. 15-1792 21

rise to the charges began with in the fifteen-year period following Jones’s release from stat e custody. Under the terms of U.S.S.G. §§ 2K2.1(a)(4)(A) and 4A 1.2(e)(1), the district courtproperly used Jones’s 1985 conviction to enhance his base offense level on the felon-in-possession counts.
Alternatively, Jones’s possession of firearms outside the indictment window could be characterized as relevant conduct for guideline purposes. Applicat ion note 8 to § 4A1.2 teaches
that the “commencement of the instant offense” for purposes of calculating the fifteen-year l ookback period includes relevant conduct as defined in § 1B1.3. That section in turn defines relevant conduct to include acts or omissions that were “part of the same course of conduct or common scheme or plan as the offense of conviction.” § 1B1.3( a)(2). “Offenses are part of the same course of conduct if they are ‘part of a single episode, spree, or ongoing series of offenses.’” United States v. Ortiz

,431 F.3d 1035, 1040 (7th Cir. 2005) (citation omitted). We consider whether there is a “strong relationship between the uncharged conduct and the convicted offense, focusing onwhether the government has demonstrated a significant ‘similarity, regularity, and temporal proximity [between] the uncharged acts and the offense of conviction.’” United States v.
Acosta , 85 F.3d 275, 281 (7th Cir. 1996) (alteration in original) (citation omitted).
The similarity factor is plainl y satisfied in this case. The uncharged conduct (possession of firearms by a prohibitedperson) was identical to the charged conduct. Given the district court’s reasonable finding that Jones possessed firearms continuously from at least 1996 forward, the regularity and proximity factors are satisfied as well.22 No. 15-1792

Jones argues that his prior po ssession of weapons cannot constitute relevant conduct under the Sentencing Guidelines
because of the bar on double-c ounting. See U.S.S.G. § 1B1.3 cmt. background (“Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.”) (emphasis added). This argumen t is a non-starter. Section § 922(g)(1) simply prohibits fe lons from possessing firearms and ammunition, period; duration is not an element of the offense. But at the sentencing stage, it is appropriate for the sentencing judge to consider the length of time over which the defendant violated the prohibition. Other things being equal, a felon who possesses a weapon for a fleeting moment is less culpable than one who posse sses many weapons continuously for many years.
Jones also argues that uncharg ed conduct must be “separate and/or iterative” to qualify as relevant conduct underU.S.S.G. § 1B1.3. In support of his argument, Jones cites several cases addressing episodic or transactional crimes. See
United States v. Sumner , 325 F.3d 884 (7th Cir. 2003) (drug dealing); United States v. Spry , 190 F.3d 829 (7th Cir. 1999) (drug dealing); United States v. Powell , 124 F.3d 655 (5th Cir. 1997) (tax evasion). These episodic cr imes by their very nature involve separate (if similar) epis odes. But 18 U.S.C. § 922(g)(1)defines a status-based crime—passive conduct that by its nature is often continuous, not episodic or iterative. Nothing in § 1B1.3 leads us to believe th at the Sentencing Commission
intended to exclude status-based offenses from the relevantconduct provisions. On the contrary, by taking into consideration the length of time that a defendant possesses weapons in violation of federal law, a sentencing judge furthers the goal of the relevant conduct Guideline—i.e., “taking into accountNo. 15-1792 23

all germane uncharged conduc t demonstrating the seriousness of the offense conduct.” United States v. Nance , 611 F.3d 409, 417 (7th Cir. 2010).

In the end, whether viewed as relevant conduct or simply as a part of the offense conduc t, Jones’s continuous possession of firearms starting in 1996 or e arlier brings his 1985 conviction within the fifteen-year look back period. The district court properly used that conviction to increase the base offense level for Jones’s felon-in-possessi on counts. We find no error in the resulting guideline computation.

Jones’s convictions and sentences are AFFIRMED.