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 similartestimony 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 forthe 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 carefulreview 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 orderto 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