In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2037

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD SELLERS,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Wisconsin. 

No. 08 CR 144 C 02—Barbara B. Crabb, Chief Judge.

ARGUED OCTOBER 15, 2009—DECIDED FEBRUARY 25, 2010

Before RIPPLE, MANION, and KANNE, Circuit Judges. 

PER CURIAM. Ronald Sellers pleaded guilty to

possessing cocaine with the intent to distribute, see

21 U.S.C. § 841(a)(1), and was sentenced to a prison term

of 168 months. On appeal he challenges his sentence

and argues that the district court erred in denying him

a two-level reduction for acceptance of responsibility.

Specifically, he contends that his cooperation with law

enforcement and his guilty plea outweigh two incidents
2 No. 09-2037

that the court identified as continued criminal conduct.

We affirm.

From early 2008 through their arrest in September 2008,

Sellers and Kurt Schels ran a cocaine-trafficking operation between Eagle River, Wisconsin, and Miami, Florida.

The operation involved weekly car trips from Wisconsin

to Miami to pick up cocaine from their supplier, Luis

Capuzzo. Sellers and Schels would then deliver the

drugs to a distributor named John Doyle in Nashville,

Tennessee. If Doyle was unavailable, however, the

two men would return to Wisconsin, store the drugs

at Schels’s residence, and distribute the cocaine themselves.

In August and September 2008, law-enforcement officers

orchestrated five controlled buys using a confidential

informant and an undercover officer. Less than a

month after the first controlled buy, Sellers and Schels

were arrested as they were driving from Miami to Wisconsin with 559 grams of cocaine in the car and a shotgun

in the trunk. Sellers cooperated after his arrest and provided information against Schels, Capuzzo, Doyle, and

other key individuals. In December 2008 he pleaded

guilty to one count of possession and acknowledged

that the amount of cocaine involved in the offense of

conviction was more than 500 grams.

The probation officer prepared a presentence report

and concluded that a reduction for acceptance of responsibility was not warranted based on two post-arrest

incidents that the probation officer characterized as

“continued criminal conduct.” See U.S.S.G. § 3E1.1. First,
No. 09-2037 3

the probation officer explained that Sellers had called his

wife, Carol, five days after his arrest and instructed her

to contact Doyle in Nashville and warn him to “empty

his bookcases.” Sellers had also told Carol to advise

Doyle that the police could not make a case against him

if he kept quiet. The probation officer concluded that

Sellers had willfully attempted “to direct or procure

another person to destroy or conceal evidence” but

decided that an upward adjustment for obstruction

of justice was not warranted because the evidence

would not have been “material to the instant offense.” The

call was, however, reason to deny a reduction under

§ 3E1.1. Second, the probation officer noted that Sellers

had attacked another prisoner during a card game

while detained. Witnesses described the violent, unprovoked nature of the attack, reporting that Sellers

repeatedly punched the other prisoner, attempted to

slam his body on the ground, and chased him down

even as the victim tried to retreat. Accordingly, the probation officer recommended that the district court deny

Sellers any reduction for acceptance.

The district court adopted the probation officer’s recommended findings. In declining to reduce Sellers’s offense

level for acceptance of responsibility, the court reasoned

that his post-arrest phone call and his jail fight were

criminal acts which suggested a heightened risk of recidivism and signaled that Sellers had not withdrawn from

his criminal associations as is required to qualify for the

reduction. Applying a total offense level of 34 against

Sellers’s category II criminal history, the court calculated
4 No. 09-2037

an imprisonment range of 168 to 210 months and

imposed a sentence at the low end of that range.

On appeal Sellers argues that the district court should

have awarded him a reduction for acceptance of responsibility because, he says, he entered a guilty plea early,

demonstrated remorse, and assisted the government’s

investigation. He argues that the district court clearly

erred when it concluded that the phone call to his wife

and his altercation in jail were evidence of continued

criminal conduct sufficient to negate what he describes

as his considerable cooperation with the government.

We review a finding regarding acceptance of responsibility for clear error, United States v. Otero, 495 F.3d 393,

400 (7th Cir. 2007), giving great deference to the sentencing judge. United States v. Gilbertson, 435 F.3d 790, 798-

99 (7th Cir. 2006).

Although timely pleading guilty and truthfully admitting

the offense of conviction and other relevant conduct are

actions consistent with acceptance of responsibility, these

steps do not entitle a defendant to a reduction under

§ 3E1.1. See U.S.S.G. § 3E1.1 cmt. n.3; United States v.

Bothun, 424 F.3d 582, 586 (7th Cir. 2005). Evidence

pointing toward acceptance of responsibility may be

outweighed by other incompatible acts or statements. See

U.S.S.G. § 3E1.1 cmt. n.3. One factor that a judge should

consider in making this determination is whether the

defendant voluntarily ended his criminal conduct and

associations. See U.S.S.G. § 3E1.1 cmt. n.1(b); Bothun, 424

F.3d at 586-87; United States v. McDonald, 22 F.3d 139,

144 (7th Cir. 1994) (noting that sentencing judge may
No. 09-2037 5

consider not only criminal conduct and associations

related to charged offenses, but criminal conduct and

associations generally).

The district court reasoned that Sellers’s post-arrest

phone call asking his wife to warn his biggest drug buyer

that the police were onto them demonstrates that Sellers

had not voluntarily withdrawn from his criminal associations. Sellers argues that the phone call was helpful to

the government’s investigation. According to Sellers, his

call gave Doyle and his other criminal associates a

false sense of security that investigating authorities

could use to their advantage. Sellers also argues that

any potential loss of evidence resulting from that call

was far outweighed by Sellers’s later description to the

government of Doyle’s role in the operation. But Sellers’s

attempt to spin the facts does not change the essential

criminal nature of the act. The district court was entitled

to view his post-arrest phone call as an effort to maintain his criminal ties with Doyle and continue his

criminal conduct.

Moreover, although the government did not ask for, and

the district court did not impose, an upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1,

Sellers’s phone call to his wife nonetheless could qualify

as obstruction under the guidelines. See United States v.

Boyle, 484 F.3d 943, 944 (7th Cir. 2007) (upholding

increase for obstruction based in part on defendant’s

phone call to associate directing him to destroy evidence). The probation officer reasoned that any evidence

which might have been destroyed as a result of the
6 No. 09-2037

call would be material to a future prosecution of Doyle,

not Sellers, and thus was not material to the “instant

offense.” That reasoning was mistaken; evidence in

Doyle’s possession could have affected Sellers’s sentence

or led to additional charges. More importantly, a defendant’s conduct that obstructs or impedes not his own

case but a “closely related offense” will still warrant an

increase. See U.S.S.G. § 3C1.1. It does not matter

whether Sellers’s obstructive conduct was immaterial to

his own guilt or sentencing as long as it was material to

Doyle’s closely related drug activities. See United States

v. Messino, 382 F.3d 704, 708 (7th Cir. 2004). If the

district court had used the phone call as the basis for

an obstruction increase under § 3C1.1, Sellers’s contention that he deserved the acceptance reduction

would have been even more unconvincing because the

guidelines treat an obstruction adjustment as presumptively incompatible with a reduction for acceptance

of responsibility. See U.S.S.G. § 3E1.1 cmt. n.4; United

States v. Krasinski, 545 F.3d 546, 554 (7th Cir. 2008);

Boyle, 484 F.3d at 944.

Sellers further argues that his attack against his fellow

inmate should not be considered “continued criminal

conduct” because it was completely unrelated to the

offense of conviction. Sellers, through counsel, had represented at sentencing that his behavior was partly attributable to grief about his wife’s death from an overdose

during his detention. He argues here that the district

court should have considered the assault an anomalous,

isolated event. But continued criminal conduct does not

need to be related to the offense of conviction to sup-
No. 09-2037 7

port the denial of acceptance points. McDonald, 22 F.3d

at 141. The district court did not err in concluding that

Sellers’s jail fight was inconsistent with a sincere acceptance of responsibility for his criminal conduct.

Accordingly, Sellers’s sentence is AFFIRMED.

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