Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: United of States of America v. Brian Thurman

Case No.: 17-1598

Officials: WOOD, Chief Judge, RIPPLE and KANNE, Circuit Judges.

Focus: Sentencing Guidelines

Law enforcement executed a search warrant at Brian Thurman’s residence after a cooperating in‐formant purchased heroin inside. They discovered drug paraphernalia, 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 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 following 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 distribution 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 motions 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 responsible for at least 700 grams of heroin and that he possessed 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 suppression 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 consented to their questioning and to the search of his phone. Furthermore, the court made proper findings of fact when applying the Sentencing Guidelines. Sentencing courts can consider conduct underlying an acquitted charge so long as that conduct is proven by a preponderance of the evidence. Accordingly, we affirm the judgment of the district court.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.