United States v. Ronald Sellers ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2037
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
R ONALD 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.
A RGUED O CTOBER 15, 2009—D ECIDED F EBRUARY 25, 2010
Before R IPPLE, M ANION, and K ANNE, Circuit Judges.
P ER C URIAM. 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 opera-
tion 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 them-
selves.
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 Wis-
consin with 559 grams of cocaine in the car and a shotgun
in the trunk. Sellers cooperated after his arrest and pro-
vided 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 responsi-
bility 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, unpro-
voked 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 proba-
tion officer recommended that the district court deny
Sellers any reduction for acceptance.
The district court adopted the probation officer’s recom-
mended 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 recidi-
vism 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 responsi-
bility 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 responsi-
bility for clear error, United States v. Otero, 495 F.3d 393,
400 (7th Cir. 2007), giving great deference to the sen-
tencing 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 associa-
tions. 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 main-
tain 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 adjust-
ment 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 evi-
dence). 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 defen-
dant’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 con-
tention that he deserved the acceptance reduction
would have been even more unconvincing because the
guidelines treat an obstruction adjustment as presump-
tively 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 repre-
sented at sentencing that his behavior was partly attrib-
utable 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 accep-
tance of responsibility for his criminal conduct.
Accordingly, Sellers’s sentence is A FFIRMED.
2-25-10