In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-2287

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES A. EVANS,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 14-CR-00108 — James D. Peterson, Judge.

____________________

ARGUED APRIL 27, 2016 — DECIDED JUNE 20, 2016

____________________

Before FLAUM, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge. Charles Evans pleaded guilty to 

distributing heroin, see 21 U.S.C. § 841(a)(1), and was sentenced below the guidelines range to 144 months’ imprisonment. He challenges his sentence, arguing that he should not 

have received a two-level upward adjustment which applies 

if a drug offender “maintained a premises for the purpose of 

manufacturing or distributing a controlled substance,” 

U.S.S.G. § 2D1.1(b)(12), and denying a two-level reduction for 
2 No. 15-2287

acceptance of responsibility, id. § 3E1.1. We affirm the judgment.

I. Background

From May to September 2014, Evans sold heroin in Beloit, 

Wisconsin, often from the apartment of his coconspirator, 

Tiana Williams. Informants made four controlled buys from 

Evans in July 2014: .43 grams for $100, .205 grams for $100, 

1.97 grams for $180, and 1.983 grams for $180. Two of those 

transactions occurred at Williams’s apartment. 

One steady customer of Evans and Williams was J.J., who 

purchased heroin once, sometimes twice, daily from May 

through August 2014, for a rough total of 113 grams. Most of 

those buys occurred at Williams’s apartment. By late August

2014, J.J. owed Evans $3,500 for heroin, plus more money for 

a car he had bought from Evans. When J.J. didn’t pay, Evans 

beat him and broke his jaw. Although J.J. borrowed money 

and paid Evans, he still was afraid, which prompted him to 

tell his own probation officer about the debt and beating. 

J.J.’s report to his probation officer apparently led Beloit 

police officers to detain Evans on a “probation hold” on September 9, 2014. While in jail, Evans used a monitored jail telephone to call Williams. Williams told him that, based on what 

she had learned from his probation officer, she thought he 

was in jail because someone had accused him of selling drugs 

and committing a battery. Evans instructed Williams to call 

“Smiley,” a frequent customer, and tell him to find the “dude 

fixing on the car.” Smiley understood this to mean J.J., so on 

September 19, he and Williams drove to J.J.’s house intending 

to pressure him to change his story. But J.J. wasn’t home (he 

was hiding in a car nearby), so the pair returned the next day 
No. 15-2287 3

and told J.J.’s mother that he had to change his story. Williams 

later talked to Evans again on a monitored jail telephone and 

reported that she had delivered the message to J.J.’s mother 

that he must change his story. 

J.J. told investigators about these visits and said that he felt 

threatened and fearful for himself and his family. The investigators confronted Williams, who at that point denied having 

gone to J.J.’s house. Then in a third monitored call the next

day, Williams told Evans that she had lied to the investigators 

by denying having gone to J.J.’s house and saying that she did 

not know Smiley. 

By then federal authorities had been investigating Evans 

and Williams for several months. One customer told investigators that Evans had sold heroin in 7-gram increments to her 

and her boyfriend on 10 to 15 occasions, often at Williams’s 

apartment. Another customer said that he had seen Evans 

with a softball-sized chunk of heroin, and that he had purchased heroin on 20 occasions from Evans and Williams. And 

Smiley, after deciding to cooperate, told investigators that he 

estimated that on 50 occasions he had bought heroin from Evans, the “biggest heroin dealer” he knew. Smiley added that 

Williams had been present on 10 to 20 of those occasions. He

also confessed that he had gone to J.J.’s with Williams. Smiley’s girlfriend admitted that she had bought heroin about 50 

times from Williams—and sometimes Evans—usually at Williams’s apartment. 

Federal authorities indicted Evans and Williams on October 29, 2014, and arrested them the next day. At first Evans 

denied selling heroin or breaking J.J.’s jaw. But Williams accompanied investigators to her apartment and showed them 

empty packaging from drugs, the scale Evans had used to 
4 No. 15-2287

measure heroin, and the hiding places where they had stored 

heroin.

As part of his plea agreement, Evans acknowledged that 

the drug quantity was between 100 and 400 grams of heroin, 

which yielded a base offense level of 24. At sentencing, over 

objection, the district court added two levels under U.S.S.G. 

§ 2D1.1(b)(12) for maintaining a premises, i.e., Williams’s 

apartment, to distribute drugs. Defense counsel had argued 

that § 2D1.1(b)(12) should not apply because Evans did not 

operate a large stash house or even rent or control Williams’s 

apartment. The court pointed out that Evans had sent customers to the apartment and sold heroin from there. 

The district court applied another two-level upward adjustment for obstruction of justice, see U.S.S.G. § 3C1.1, reasoning that Evans had directed Williams to pressure J.J. to retract his accusation about the drug debt and related beating.1

Defense counsel argued that Evans nonetheless deserved a 

two-level downward adjustment for accepting responsibility 

because he had pleaded guilty and cooperated with prosecutors after he was indicted. The government countered that Evans had not shown acceptance of responsibility when he instructed Williams to induce J.J., a victim, to recant his statement. The court agreed with the government and found that 

Evans’s attempts were “really inconsistent with the kind of 

full acceptance of responsibility that would make it appropriate to give him a two-level downward adjustment.” The court 

 1 Williams pleaded guilty to conspiring to intimidate a witness, see 18 

U.S.C. §§ 371, 1512(b). She filed an appeal from her conviction and sentence, which we have addressed separately. See United States v. Williams, 

No. 15-2288 (7th Cir. June __, 2016).
No. 15-2287 5

added that this wasn’t an “extraordinary case” warranting 

both an upward adjustment for obstruction and a downward 

adjustment for acceptance of responsibility. 

The district court calculated an imprisonment range of 168 

to 210 months based on a total offense level of 30 and a criminal-history category of VI. After considering the factors in 18 

U.S.C. § 3553(a), the court sentenced Evans to 144 months. 

II. Analysis

On appeal Evans challenges the increase he received under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises to distribute drugs. Section 2D1 provides for a two-level increase 

“[i]f the defendant maintained a premises for the purpose of 

manufacturing or distributing a controlled substance,” 

U.S.S.G. § 2D1.1(b)(12), including by using a “building, room, 

or enclosure” to store drugs, id. § 2D1.1 cmt n.17. In assessing 

whether this increase applies, sentencing courts should consider “(A) whether the defendant held a possessory interest 

in the premises (e.g., owned or rented), and (B) the extent to 

which the defendant controlled access to, or activities at, the 

premises.” Id. Evans asserts that he did not have a possessory 

interest in Williams’s apartment since his name was not on the 

lease, he did not live in the apartment or even have a key, and 

he did not keep anything (other than drugs) at the apartment. 

The government concedes that Evans did not have “actual 

possession” of the apartment but insists that he did control 

access to and activities at the apartment and thus exercised 

“constructive possession.” 

Whether or not Evans had a “possessory interest” in Williams’s apartment, he did control the access and activities 

there. A defendant “‘maintains’ a drug house if he ... exercises 
6 No. 15-2287

control over [the premises], and for a sustained period of time, 

uses those premises to manufacture, store, or sell drugs, or 

directs others to those premises to obtain drugs.” United States 

v. Acosta, 534 F.3d 574, 591 (7th Cir. 2008). The district court 

had ample evidence that Evans controlled activities at Williams’s apartment and even controlled Williams herself: He 

packaged drugs at the apartment, he directed customers to go 

there to buy drugs, he ordered Williams to retrieve drugs 

from hiding places in the apartment where he stored the 

drugs, he told Williams how to dispense heroin to customers 

when he was not present, and he dealt drugs in the apartment 

on at least 50 occasions (and likely significantly more) during 

just a few months. These circumstances support the application of § 2D1.1(b)(12). 

That drugs were stashed in the apartment shows “storage 

of a controlled substance for the purpose of distribution.” 

U.S.S.G. § 2D1.1 cmt. n.17; see, e.g., United States v. Jones, 778 

F.3d 375, 385 (1st Cir. 2015) (upholding application of 

§ 2D1.1(b)(12) and agreeing with district court that evidence 

of drug sales over three-month period and discovery of digital 

scale, boxes of baking soda, plastic baggies, and packaging 

with cocaine residue established nexus between apartment 

and defendant’s drug trafficking). Moreover, “tools of the 

trade”—such as the baggies and scale found at Williams’s 

apartment—can be “indicia that drug trafficking was the principal use of the premises.” United States v. Flores-Olague, 717 

F.3d 526, 533 (7th Cir. 2013) (citing United States v. Miller, 698 

F.3d 699, 706–07 (8th Cir. 2012)); see also United States v. 

Sanchez, 810 F.3d 494, 496–97 (7th Cir. 2016).

Evans suggests that he could not have controlled the activities at the apartment because its “primary” use was as a 
No. 15-2287 7

“family dwelling place” for Williams and her son. But the 

commentary to § 2D1.1 specifically directs sentencing courts 

to consider the defendant’s “primary or principal uses for the 

premises” and how often the defendant used the premises for 

drug trafficking rather than lawful purposes. U.S.S.G. § 2D1.1 

cmt. n.17. The district court properly focused on the fact that 

Evans’s use of the apartment included sending customers 

there, selling drugs from the location, and instructing Williams to make sales from the apartment in his absence. 

See Miller, 698 F.3d at 706 (upholding application of 

§ 2D1.1(b)(12) to codefendant who had actively participated 

in three drug sales at the property and also accepted payment 

there for other drug sales).

Moreover, Williams’s use of the apartment as a residence 

is not dispositive because drug activity need not be the exclusive use of the premises for the upward adjustment to apply. 

“[A] premise can have more than one primary use (drug distribution and residence), and, as long as it is more than ‘incidental or collateral,’ drug distribution does not have to be the 

‘sole purpose.’” Sanchez, 810 F.3d at 497 (quoting U.S.S.G. 

§ 2D1.1 cmt. n.17); see United States v. Bell, 766 F.3d 634, 638 

(6th Cir. 2014); United States v. Johnson, 737 F.3d 444, 447 (6th 

Cir. 2013) (upholding application of § 2D1.1(b)(12) to defendant who used one room of his home to store drugs for distribution); Miller, 698 F.3d at 706–07.

Evans’s disagreement with the application of 

§ 2D1.1(b)(12) thus lacks merit. Also without merit is his further claim that he deserved a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 even though 

he received an upward adjustment for obstruction of justice 

under U.S.S.G. § 3C1.1. Evans does not contest the increase for 
8 No. 15-2287

obstruction, but he argues that his case is “extraordinary,” see 

U.S.S.G. § 3E1.1 cmt. n.4, because he admitted the scope of his 

conduct, pleaded guilty, and obstructed justice only “on a single occasion before being indicted.” 

“When a sentencing court properly enhances a defendant’s offense level under § 3C1.1 for obstructing justice, ‘he is 

presumed not to have accepted responsibility.’” United States 

v. Ewing, 129 F.3d 430, 435 (7th Cir. 1997) (quoting United 

States v. Larsen, 909 F.2d 1047, 1050 (7th Cir. 1990)). In “extraordinary cases,” a defendant may initially obstruct justice and 

later accept responsibility. U.S.S.G. § 3E1.1 cmt. n.4; United 

States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000). Evans 

compares himself to the defendant in United States v. Lallemand, who cooperated with the police by retracting his instruction to an accomplice to destroy evidence. 989 F.2d 936, 

937–39 (7th Cir. 1993), abrogated in unrelated part by United 

States v. Vizcarra, 668 F.3d 516, 523–25 (7th Cir. 2012). But the 

analogy is unsound because the defendant in Lallemand tried 

to terminate the planned obstruction immediately after he 

was arrested, whereas Evans embarked on a course of obstructive conduct after—and because—he had been detained 

on a probation hold. 

Evans pleaded guilty after trying unsuccessfully to obstruct justice, but pleading guilty does not assure a reduction 

for acceptance of responsibility. United States v. Bennett, 708 

F.3d 879, 893 (7th Cir. 2013); see United States v. Davis, 442 F.3d 

1003, 1010 (7th Cir. 2006) (upholding denial of reduction for 

defendant who pleaded guilty but presented no evidence that 

she negated effect of her obstruction). The district court was 

justified in concluding that this wasn’t an “extraordinary 
No. 15-2287 9

case” and deciding not to credit Evans for acceptance of responsibility. Acceptance of responsibility is a question of fact 

reviewed for clear error, United States v. Krasinski, 545 F.3d 546, 

554 (7th Cir. 2008), and the finding in this case is not clearly 

erroneous.

Accordingly, the judgment is AFFIRMED.