88 Cal.App.2d 576 (1948)
WALDO DE VORE, Appellant,
v.
JAMES WILLIAM FARIS et al., Respondents.
Civ. No. 16415.
California Court of Appeals. Second Dist., Div. One.
Nov. 17, 1948.
 Marcus, Rabwin & Nash and Monroe R. Rubin for Appellant.
 Jones, Thompson & Kelly for Respondents.
 YORK, P. J.
 This is an appeal by plaintiff from a judgment entered on the verdict of the jury in open court in favor of defendants, in an action to recover damages for personal injuries sustained by plaintiff when he was struck by defendants' automobile.
 The only question raised on this appeal is whether the court committed prejudicial error in its refusal to give to the jury instructions requested by plaintiff relating to the doctrine of the last clear chance.
 The circumstances out of which the instant litigation arose are the following:
 Appellant and his wife were returning to their home in Thermal, California, from Los Angeles, on October 19, 1946, and at about 6 p. m. appellant parked his automobile opposite a fruit stand on Arroyo Road just east of the Kellogg Arabian Farm near Pomona. Arroyo Road is a four-lane, straight-away highway at this point with a 5 or 6 foot safety area in the center which divides east and west bound traffic.
 Appellant testified it was dark at the time and that traffic was not heavy; that he got out of his car and waited for four or five cars to pass traveling east on the highway with headlights burning; that he then walked across the south half of the road to the safety or dividing area, where he stopped and waited a few seconds to permit about three westbound cars to pass; that he then proceeded across the north half of the highway to the fruit stand where he bought some bananas. In the meantime, Mrs. De Vore joined him and after making some further purchases, they returned safely to their parked car.
 Appellant further testified that he had trouble starting his car, whereupon he got out and raised the hood, but it was too dark for him to see very well, so he again started across the highway to the fruit stand to borrow a flashlight. Said witness stated that he stood by his car and waited for eastbound traffic to pass; that he reached the safety zone in the center of the highway; saw lights coming from the east and waited for three westbound cars to pass; that he then looked to the east, saw no more cars and started across the north half of the highway; that when he reached the white line in the center of said north half separating the two westbound lanes of traffic, he again looked to the east; that he "didn't see anything coming *578 so I went on across"; that when he had just about cleared the north half of the highway, with his left foot on the asphalt shoulder and his right foot lifted to take the last step off the highway, his right leg was struck below the knee by an automobile being driven in a westerly direction by respondent James William Faris, nephew of respondent Mary Faris, owner of the car. In the impact, appellant's right foot was partially severed a few inches above the ankle, necessitating the amputation of the right foot at a point a few inches below the knee. In addition appellant suffered lacerations of the head, concussion, and injuries to his shoulders and chest.
 Appellant further testified that he saw no headlights and heard no horn before he was struck and rendered unconscious.
 On cross-examination, appellant stated that he heard no sound of an engine of an automobile just before he was struck; that his hearing and eyesight were good; that he was 50 years and 5 months of age. Further that the highway as it extended to the east of the scene of the accident was flat and level; that one could see to the east at the point in question a quarter mile or more; that there were no buildings or improvements of any kind from the bottom of Kellogg Hill until a point a quarter of a mile or so east of the scene of the accident, other than the fruit stand; that it is an open country road out there. In answer to the question: "Mr. De Vore, from the time you started from this separation of the divided highway up to the point the accident occurred, you continued to walk and were in motion all that time, were you not?" he replied: "I was in motion all that time, yes, sir."
 The witness DeHaan, owner of the fruit stand, testified that immediately after the impact, appellant was lying on the "edge of the road"; and on the morning after the accident he saw blood and a small piece of bone on the edge of the highway near the shoulder.
 Mrs. De Vore testified that she watched appellant as he walked across the road to borrow the flashlight, and noticed that he stopped in the center safety zone to let two cars traveling westerly toward Los Angeles pass by, whereupon appellant "proceeded to the second lane where he didn't stop long. He hesitated." That this was at a point (D-3) on the white line in the north half of the road; that the witness looked east from where she sat in the parked car and saw no cars coming; that appellant was then "in the clear"; that she glanced away and the next thing she heard was the impact and a scream; that she looked and saw appellant lying on the ground, and the car *579 going ahead, "going very fast"; that she saw no tail light on the car as it proceeded west about a block from the fruit stand at which place she later saw it parked.
 On cross-examination, Mrs. De Vore was asked: "How long did he stop at D- 3 (the white line in the middle of the north half of the highway)?" To this question, the witness replied: "I would say just long enough to be sure there were no cars coming." ... Q. By Mr. Thompson: ... But you did see him actually pause or hesitate and stop for two seconds? A. I saw him pause and hesitate there. Q. Then it is not true that he continued to walk from the center of the roadway up to the point of the impact, from your observation? A. No, sir. ... Q. And you saw him pausing out there for two seconds on that single line, is that correct? A. I can't be sure whether it was one or two seconds, but he paused long enough to look up and ascertain whether there were cars coming.""
 James William Faris, the driver of the car, testified he was 18 years of age at the time of the accident, a student at Fairfax High School; that about 5:30 p.m. of October 19, 1946, he was on his way home to Los Angeles; that a friend, Bob Olson, was with him; that he left his companion at his home in Ontario about 5:45 p.m.; that the witness got out of the car at the Olson residence and looked at some football scores with the aid of the headlights of his car; that it was dark and said headlights were then burning. That he then proceeded on his way alone, and as he approached the scene of the accident he was traveling west in the most northerly lane of the highway at a speed of from 45 to 50 miles per hour; that traffic was heavy, and as he got near the fruit stand there was a car traveling immediately to his rear in the next lane toward the center of the highway; that he could see the lights of that car in his rear view mirror; that he observed no pedestrians walking north or south across the road; that the left wheels of his car were about a foot north of the white line dividing the north half of the highway as he approached the fruit stand; that he heard the horn of the car behind him once before the impact.
 Respondent Faris further testified that he did not see appellant at all, but he felt the impact, came to a gradual stop and parked his car about 300 feet west of the point of impact; that he got out of the car, went back and found appellant lying on the road "his shoulders and head were half on the pavement and his legs were on the shoulder"; that there was blood on the pavement. That he remained at the scene until the officers *580 arrived. On cross-examination respondent Faris testified that his lights were on low beam.
 Highway Patrol Officer Elliot, who, with his brother Officer Collier, investigated the accident, testified that when they arrived they found appellant lying on the shoulder of the highway; that about 40 feet east of that point said witness saw a spot of blood; that an examination of respondents' car disclosed a place on the right side of the front bumper where the dust had been removed "which could have been removed by striking a person's leg"; that there was no damage to the car by bending, denting or crashing in anywhere; that said witness asked respondent Faris how his car came to be parked so far from the point of impact, to which said respondent replied that the reason he stopped there was because he did not know that he had hit anyone; he thought first he had hit an animal, or a dog or some animal or something, and that at first he wasn't going to stop, and later he decided to go back and see if it was an animal, to see if it was injured and see if he could contact the owner of the animal; that that was the reason for the distance of his car.
 This witness also testified that Mrs. De Vore made a statement to him enroute to the hospital shortly after the accident, to the following effect: "She stated that her husband started to cross the road and she was in the front seat of the car, and after he got part way across the highway, she said she was nervous and saw these cars, and that--and she was afraid that he might get hit, or something, and she said that, 'I put my head down and sort of covered my eyes', and then she said she heard a thud, and then she said, 'I screamed', or something to that effect, and she knew her husband had been hit." On cross-examination of Officer Elliot the following took place: "Q. Now, with reference to the statement that Mrs. De Vore made to you, did she tell you, when she made that statement, that she was directing her attention to any particular car that she was afraid of? A. No, no particular car. She noticed a lot of automobiles which appeared to be going fast and she was nervous and scared, she stated, when she saw her husband going across the road, and afraid he might get hit."
 "The elements necessary to justify the court in instructing the jury on the doctrine of last clear chance are well stated in the frequently cited case of Girdner v. Union Oil Co., 216 Cal. 197, 202 [13 P.2d 915]: 'That plaintiff has been negligent and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this *581 includes not only where it is physically impossible for him to escape but also in cases where he is totally unaware of his danger and for that reason unable to escape; that defendant has knowledge that plaintiff is in such a situation and knows, or in the exercise of ordinary care should know, that plaintiff cannot escape from such situation, and has the last clear chance to avoid the accident by exercising ordinary care, and fails to exercise the same, and the accident results thereby, and plaintiff is injured as the proximate result of such failure.' There must be substantial evidence before the court to establish all of these elements or the doctrine is not applicable." (Keller v. Arden Farms, Inc., 59 Cal.App.2d 506, 508 [139 P.2d 47].)
 Appellant urges that by conceding the first element, i. e., that he was negligent, all "six elements" of the doctrine were present in the evidence introduced at the trial, thereby entitling him to the requested instructions.
 With respect to the element that "defendant had actual knowledge of the plaintiff's perilous position," attention is directed to the case of Rasmussen v. Fresno Traction Co., 15 Cal.App.2d 356, 362 [59 P.2d 617], where it was stated: "While it has always been held that the rule did not apply unless the defendant actually knew that the plaintiff was in a position of danger, it has more recently been held that the jury is not required to take the defendant's word that he did not see but that, under proper circumstances, the jury may find that he did see, and that the jury, having found on proper evidence that he actually saw, may infer that he should then have known that the plaintiff could not escape." In this connection, appellant contends that the uncontradicted facts support the position that respondent driver actually did see appellant, for the reasons that: (1) the place where the accident occurred was on a level, straight-away portion of the highway; (2) there was nothing to obstruct the driver's view for a quarter of a mile each way; (3) appellant had walked circumspectly across the highway until he had reached the extreme edge and (4) was in the act of taking his last step to clear the same; (5) respondent claimed his headlights were burning and that he was looking straight ahead; (6) appellant walked across the line of travel of respondent's car and was struck by the right end of the front bumper, indicating that appellant had crossed the highway in full view of the headlights of respondent's car; (7) respondent did nothing to avoid the accident; he sounded no horn, did not apply his *582 brakes, and traveled 300 feet beyond the point of impact before he came to a stop.
 With respect to the element of the defendant's knowledge of plaintiff's predicament, it was stated in Gillette v. City of San Francisco, 58 Cal.App.2d 434, 442 [136 P.2d 611]: "... the courts have held repeatedly that it is a question of fact for the jury to determine from all the circumstances presented by the evidence whether the defendant actually knew of the plaintiff's peril; and that notwithstanding there may be a total absence of any positive testimony that the defendant actually knew of plaintiff's danger, and even though the defendant definitely denies seeing the plaintiff at all, the doctrine of the last clear chance may be invoked and applied where the facts and circumstances are such as would justify the jury in finding that despite the defendant's denial of knowledge or the absence of direct testimony on the subject, he was actually aware of plaintiff's danger in time to avert the accident; in other words, that he 'must have known' of plaintiff's danger. For example, in the case of Hoy v. Tornich, supra, [199 Cal. 545 (250 P. 565)] it was contended that since the uncontradicted evidence showed that the defendant did not see the plaintiff until the very moment of the accident, the doctrine of the last clear chance was inapplicable. The court held otherwise, saying: 'If the defendant in this case was looking straight ahead, as he testified that he was, he must have seen the plaintiff.' "
 In 2 California Jurisprudence, Ten-Year Supplement, page 189, section 128 (Automobiles), it is stated: "Again, where it appears that the victim was in the path of the vehicle and plainly visible to the driver, the trier of facts may properly conclude that the driver 'must have seen' him. Hence, the jury may be instructed as to the Doctrine of Last Clear Chance although there is no direct evidence that the defendant actually knew of the victim's presence in the roadway, and indeed, although he may have testified that he did not see the victim in time to avert the collision."
 [1] Respondents urge that there is no evidence that the driver, James William Faris, saw appellant at any time before he was struck, and in any event that the accident occurred with such swiftness that respondent Faris had no clear chance to avoid it, hence the doctrine of last clear chance is not applicable.
 In this connection they cite the case of Bagwill v. Pacific Electric Ry. Co., 90 Cal.App. 114 [265 P. 517], wherein it *583 was stated at page 121: "Certainly the doctrine of last clear chance never meant a splitting of seconds when emergencies arise. There seems still to be some misconception of this doctrine of last clear chance. It was not devised as a last resort to fasten liability on defendants. Like the body of the law of negligence, to which the doctrine is appended, the test remains as that of ordinary care under all of the circumstances. The law in many of its workings indicates great charity and solicitude for individual rights. It says to a negligent plaintiff that in spite of his lack of caution he will be protected against wanton, wilful or avoidable harm. But, on the other hand, it penalizes no innocent person. We are not to tear down the facts of a case and rebuild the same so that, by a trimming down and tight-fitting operation, something can be constructed upon which may be fastened the claim of last clear chance. The words mean exactly as they indicate, namely last clear chance, not possible chance."
 In the more recent case of Berton v. Cochran, 81 Cal.App.2d 776, 779 [185 P.2d 349], it was stated: "The question is whether an instruction on the doctrine of the last clear chance should have been given. 'The doctrine of last clear chance presupposes that both parties were guilty of negligence; that there must be an opportunity, a clear chance, a situation established by substantial evidence, and that the defendant saw or knew of plaintiff's perilous position and could have avoided the collision but, having such opportunity, did not do so.' (Dalley v. Williams, 73 Cal.App.2d 427, 433 [166 P.2d 595].) The evidence shows, according to defendant's testimony, that he was 10 feet from the driveway when he first saw the boy, and shows, according to defendant's alleged statement to the officers, that he was 30 feet from the driveway at that time. Since the driveway was 10 feet wide, it appears from the testimony just referred to that the defendant traveled either 15 or 35 feet after he first saw the boy and before the collision. ... and in the view most favorable to plaintiff, the defendant traveled 43 feet after he first saw the boy and before the collision, and if defendant traveled at the rate of 37 feet a second, the collision occurred in less than a second and a half after he first saw the boy. The defendant testified that the collision occurred approximately a second and a half after he first saw him. ... Irrespective of whether the defendant was 10 feet or 30 feet from the driveway when he first saw the boy, or whether defendant traveled 15, 23, 35 or 43 feet, after he first saw the boy and before the collision, it appears that the *584 collision occurred within a second or two after defendant saw him. In the case of Bagwill v. Pacific Electric Ry. Co., 90 Cal.App. 114 [265 P. 517], the court said at page 121: 'Certainly the doctrine of last clear chance never meant a splitting of seconds when emergencies arise. ... Like the body of the law of negligence, to which the doctrine is appended, the test remains as that of ordinary care under all of the circumstances. ... The words mean exactly as they indicate, namely, last clear chance, not possible chance.' In Dalley v. Williams, supra, [73 Cal.App.2d 427 (166 P.2d 595)] it was said at page 432: 'The doctrine presupposes time for effective action and is not applicable where the emergency is so sudden that there is no time to avoid the accident.'"
 "Under any view of the evidence herein as to the distance defendant traveled after he saw the boy, it is clear that the emergency arose suddenly and that there is no substantial evidence that defendant had time to avoid a collision with the fast moving bicycle. The doctrine of the last clear chance is not applicable herein and it was not error to refuse to give an instruction on that doctrine. 'The giving of an instruction submitting an issue on the last clear chance doctrine, where there is not sufficient evidence to justify the submission, is reversible error.' (Dalley v. Williams, supra, p. 437.) ... A defendant 'cannot be held liable under the last clear chance rule, upon the theory that he would have discovered the peril but for remissness on his part.' (Dalley v. Wililams, supra, p. 436.)"
 Appellant in his brief argues as follows: "Let us assume that the plaintiff was walking across the highway at a normal gait of four miles per hour. The defendant admitted going 40 to 45 miles per hour, which would mean approximately 60 feet per second. The plaintiff was traveling approximately six feet per second. While the plaintiff was crossing the north portion of the highway, which he had practically cleared, about 3 1/2 seconds elapsed. During that time the defendant traveled on a straight-a-way, level highway for about 200 feet and in those 200 feet defendant did nothing to avoid the accident, although plaintiff was in full view of the defendant's headlights."
 Accordingly, appellant was in a perilous position for only a second or two at the most. When he was on the white line in the middle of the north half, appellant testified he looked to the east and saw no automobiles coming; that he heard no sound of a motor or a horn, whereupon he proceeded *585 the short distance across the northerly lane of the north half of the highway to the extreme edge thereof, when he was struck. Mrs. De Vore, who was watching her husband, stated she saw appellant hesitate on the white line in the center of the north half of the highway, and that she then looked to the east "to see if there were any cars coming, and I didn't see any." Respondent driver of the car testified he did not see appellant at all, but felt the impact and came to a gradual stop.
 In view of the foregoing, it appears that the evidence herein is not sufficient to establish all of the elements of the doctrine of the last clear chance in that the accident occurred so quickly that respondent James William Faris did not have a last clear chance to avoid the same.
 For the reasons stated, the judgment is affirmed.
 Doran, J., and White, J., concurred.


287 F.Supp.2d 975 (2003)
ADMINISTRATIVE COMMITTEE OF THE WAL-MART STORES, INC. ASSOCIATES' HEALTH AND WELFARE PLAN, Plaintiff
v.
Karla COSSEY, William Cossey, Neil Chamberlain and Bond and Chamberlain Defendants
No. 4-03-CV-00609-WRW.
United States District Court, E.D. Arkansas, Western Division.
October 21, 2003.
*976 John M. Russell, Edwin L. Rawson, Lawrence & Russell, LLP, Memphis, TN, for Administrative Committee of the Wal-Mart Stores, Inc. Associates' Health and Welfare Plan, plaintiff.
Neil Chamberlin, Will Bond, Bond & Chamberlin, Jacksonville, AR, for Karla Cossey, defendant.

SUBSTITUTED OPINION/ORDER
WILSON, District Judge.

I. Parties
Plaintiff, Administrative Committee of the Wal-Mart Stores, Inc. Associates' Health and Welfare Plan, (Wal-Mart) is a fiduciary under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.
Defendant William Cossey is an employee of Wal-Mart. Defendant, Karla Cossey is his wife and is a "Covered Person" under the Plan.
Defendant Neil Chamberlain is the lawyer for Ms. Cossey in a negligence case in Arkansas State Court, filed in connection with injuries she sustained in an auto accident in 2001. Mr. Chamberlain is also counsel for Ms. Cossey in a related case in this Court which alleges, among other things, violations of ERISA and of a fiduciary duty to Defendant Cossey.
Defendant Bond and Chamberlain is a partnership of trial lawyers in Jacksonville, Arkansas, which is part of the Little Rock Metropolitan Area.

II. Procedural Status:
On July 31, 2003, Wal-Mart petitioned this Court, by Motion and Memorandum of Law, to issue a Temporary Restraining Order (TRO) and Preliminary Injunction (PI) against Defendants (Docket Nos. 3 and 4). Plaintiff brought its action under 29 U.S.C. § 1132(a)(3). I attempted to schedule a hearing the day the motion was received, but Wal-Mart was unable to attend. While it is not my practice to enter TRO's without a hearing, (absent the need for a "quick fix"), I did so in this case. A hearing was scheduled on August 18, 2003.
The Defendants filed a timely written Response to the Motion on August 15, 2003 (Docket No. 12). Oral argument was *977 held, and exhibits were received. At the end of the hearing, I extended the TRO until Thursday August 21, 2003. Based on the evidence and law, the Temporary Restraining Order is DISSOLVED and the Motion for a Preliminary Injunction is DENIED.

III. Background:
In connection with injuries sustained in her accident, Karla Cossey presented the Plan with $69,576.42 in medical claims. (Docket No. 1 Para. 8). To date, the Plan has paid $110.46 and has denied all other payments (TR 23). Wal-Mart states that the Plan is withholding the benefits because Cossey and her attorney refused to sign a Disbursement Agreement. It appears from documents produced at the hearing, that the Wal-Mart is also refusing payment of medical claims for William Cossey and Karla Cossey which are totally unrelated to the accident (PX 1, 2, and 3). Wal-Mart's also refuses to pay these claims because of the refusal to sign the document.
As mentioned earlier, pending in this Court is Case No. 4-02-CV-661 in which Cossey complains of violations of ERISA, as well as violations of a fiduciary duty owed her. In that lawsuit Cossey and her lawyer quarrel with Wal-Mart's requirements that the disbursement agreement, which was provided only after Wal-Mart learned of the state court lawsuit, be signed prior to payment of medical bills. Defendants argue that it is a breach of fiduciary duty to deny health insurance benefits because her lawyer has not signed the disbursement agreement (TR. 29).
Defendant Cossey settled her tort action against the third-party who caused her injuries. Upon learning of the settlement, Plaintiff brings this Motion for an equitable injunction in the form of a lien or constructive trust under 29 U.S.C. § (a)(3), seeking to preserve $69,576.42 until the Plan's right to reimbursement has been determined in the other lawsuit.
Cossey contends that she needs the money to pay her medical providers, which Wal-Mart has refused to pay, and that Wal-Mart has no ripe interest in the money before it pays the claims.
While there are many interesting factual and legal issues that need resolution, the only issue that I decide here, is whether Wal-Mart is entitled under 29 U.S.C. 1132(3)(a) to an equitable constructive trust of these funds. It is that issue only which I decide now. The other issues are for another day.

IV. Analysis
Plaintiff brings this action under 29 U.S.C. § 1132(a)(3). That portion of the statutory scheme of ERISA has been interpreted by the United States Supreme Court in Knudson to allow equitable relief in ERISA actions seeking reimbursement.[1] In Knudson, the Court taught that, for a plaintiff to seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, the money or property identified as belonging in good conscience to the plaintiff must be clearly be traced to particular funds or property in the defendants possession (emphasis added).
Wal-Mart states in its Memorandum of Law "federal courts addressing ERISA reimbursement claims since Knudson have squarely ruled that ERISA reimbursement actions are permissible when there is an identifiable res." Wal-Mart Stores, Inc. Associates' Health and Welfare Plan v. Varco, 338 F.3d 680 (7th Cir. *978 July 29, 2003). The problem with this assertion is serious. The Varco court addressed only the entitlement to subrogation for money that had already been paid. Plaintiff cites five additional district court opinions that have addressed subrogation rights of a plan fiduciary and allowed equitable relief (Memorandum at 5 and 6)( Docket No. 3). Once again, in all of these cases, the right to subrogation was only for claims already paid. I find that fact crucial. In fact, Counsel for WalMart admitted at oral argument that he was aware of no court that had granted an injunction against funds for claims that had not been paid and that this was the first time such relief had been sought. (TR. 31, lines, 11-35).
At first blush, I thought this was an easy matter. Wal-mart had paid claims, a settlement had been made, and a right to subrogate was being thwarted. However, such is not the case. I owned-up at oral argument, that in my early days of private practice, I spent quite a bit of my 4 time handling subrogation matters.[2] Then, as now, the right to subrogate arises when the payment is made.[3]
In this case, Wal-Mart has paid $110.42. Yet, it asks me to impose an equitable trust in the amount of $69,576.42. Counsel for the Defendants gently described this as an aggressive tactic.(TR. 28). This is not an action in keeping with the general requirement that for restitution to lie in equity, that an action generally must seek not to impose personal liability on the defendant, but to restore to the possession particular funds or property in the defendants possession.[4]
Further, Knudson taught that to obtain equitable reimbursement, a fiduciary must establish that the Committee is rightfully entitled to the money. Wal-mart has not done so here, as the money has not been paid. Wal-Mart has cited numerous post Knudson cases in which district courts have entered preliminary injunctions when plaintiff's are seeking reimbursement. However, no authority is cited for the proposition that the Plaintiff has a right to funds it has not paid. I think that would be a step too far.
Defendants' position is that the fiduciary cannot, on the one hand, deny coverage, and at the same time, seek to tie up funds for a reimbursement for funds it has not paid. (TR. 29). The Plan language supports this position.
The Plan's right to reimbursement applies when the Plan pays medical benefits, and a judgment, payment, or settlement is made on behalf of the covered person for whom the medical benefits were paid. (Docket No. 1).(emphasis added).
I can think of many public policy reasons to support this finding. Importantly, when asked at oral argument what would prevent Wal-Mart form denying every claim involving a potential third-party payer until it was clear whether or not there were funds that you could subrogate against, Wal-Mart's Counsel responded "that's exactly what the plan allows" (TR. 34). I find that this is not the kind of good conscience required by Knudson in fact, I find the proposition shocking.
While the parties dispute whether or not it is necessary for me to find irreparable *979 harm, I find in this instance, that Wal-Mart will not be irreparably harmed. If the question is simply that I must find a violation of the underlying statute, here, ERISA, I find none. Granting a preliminary injunction is unreasonable.
I also address the issue of whether Mr. Chamberlain and his firm are proper parties to this action. I believe this matter is settled the Eighth Circuit. Mr. Chamberlain did not become a plan fiduciary merely by representing the Plaintiff or by having control over settlement proceeds. He clearly has an ethical obligation to his client that does not allow competing allegiances.[5] Neither Mr. Chamberlain, nor his firm, Bond and Chamberlain, are proper parties to his action, so they are dismissed from the action.
NOTES
[1]  Great-West Life & Annuity Ins. Co., v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002).
[2]  In those long ago days, I styled myself Subrogatious RexMelvin Belli was being called Tortious Rex at that time.
[3]  Universal Title Ins. Co. v. U.S., 942 F.2d 1311 (8th Cir.1991); St. Paul Fire & Marine Ins. Co. v. Murray Guard, Inc., 343 Ark. 351, 37 S.W.3d 180 (2001).
[4]  Knudson, 122 S.Ct. at 714.
[5]  Southern Council of Industrial Workers v. Ford, 83 F.3d 966 (8th Cir.1996).


441 F.Supp. 819 (1977)
BURBANK INTERNATIONAL, LTD. and P. T. Tri Usaha Bhakti
v.
GULF CONSOLIDATED INTERNATIONAL INC.
No. CA3-77-0855-F.
United States District Court, N. D. Texas, Dallas Division.
December 7, 1977.
*820 William D. Sims, Jr., and Charles A. Gall, Jenkens & Gilchrist, Dallas, Tex., for plaintiffs.
Richard A. Sayles, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, Tex., Stephen R. Kirklin, Childs, Fortenbach, Beck & Guyton, Steven A. Buxbaum, Houston, Tex., for defendant.
ROBERT W. PORTER, District Judge.
This tale of two cities arises under the venue provisions of 28 U.S.C. § 1391(c) and the venue transfer provisions of 28 U.S.C. § 1404(a). Plaintiffs Burbank International, Ltd. ("Burbank") and P. T. Tri Usaha Bhakti ("Truba") filed this action in the Northern District of Texas, Dallas Division, against Gulf Consolidated International, Inc. to recover contractual or quantum meruit damages for breach of an alleged oral agreement between Burbank and Truba with Gulf whereby Burbank and Truba would act as sales representatives for Gulf in Indonesia. Jurisdiction is grounded solely upon diversity of citizenship under 28 U.S.C. § 1332. Defendant Gulf has moved for a dismissal for lack of venue, or, in the alternative, for transfer to the Southern District of Texas, Houston Division, for the convenience of the Defendant and its witnesses.
A civil action founded solely on diversity jurisdiction may be brought in one of three locations: (1) the judicial district where all the Plaintiffs reside; (2) the judicial district where all of the Defendants reside; or (3) the judicial district where the claim arose. 28 U.S.C. § 1391(a). A corporation may be sued in either: (1) any judicial district in the state in which it is incorporated; (2) any judicial district in which the corporation is licensed to do business; or (3) any judicial district in which the corporation is doing business. 28 U.S.C. § 1391(c).
Burbank is a corporation organized and existing under the laws of New Hebrides, with its principal office located in New York, N. Y. Truba is a corporation organized and existing under the laws of Indonesia, with its principal office located in Jakarta, Indonesia. Gulf is a corporation organized and existing under the laws of the State of Texas, with its principal place of business in Houston, Texas. Defendant Gulf conducts no business and has no agents or employees in the Northern District of Texas. Gulf transacts all of its business in the State of Texas within the Southern District of Texas, Houston Division. Plaintiffs Burbank and Truba properly selected the Northern District of Texas, *821 Dallas Division, as the venue for this case only if a corporation may be sued in any district in the State of its incorporation. Gulf argues that a corporation may only be sued within the State of its incorporation in the District in which it is actually doing business.
The Courts and commentators have split in authority on the question of whether a corporation may properly be sued under 28 U.S.C. § 1391(c) in any district within the State of its incorporation.[1] The Fifth Circuit recently decided the question in this circuit in Davis v. Hill Engineering, Inc., 549 F.2d 314, 323 (5th Cir. 1977) and agreed with the District Court and commentators
". . . that have concluded that venue is proper under Section 1391(c) . . in every district of the state in which a defendant corporation is incorporated."[2]
Proper venue exists in the Northern District of Texas, Dallas Division under 28 U.S.C. § 1391(c). Davis, supra.
A district Court may transfer any civil action to any other district or division where it otherwise might have been brought for the convenience of the parties or in the interest of justice. 28 U.S.C. § 1404(a). The trial judge, under appropriate circumstances, should consider a variety of factors that other courts have utilized in deciding venue motions. The prolific litigation in this area of the law has resulted in conflicting decisions by the courts about the permissible factors of consideration and the correct weight that should be assigned to each factor by the trial judge in reaching his final decision.[3] No attempt should be made to limit the scope of the judge's review to a catalogue of permissible considerations, and the weight given to the factors by the judge will necessarily vary from case to case. "Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy." Gulf Oil Corporation v. Gilbert, *822 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1946).[4] The 160 pages of annotations to 28 U.S.C. § 1404 indicate that most federal district courts have attempted to comply with this dictum. 28 U.S.C.A. § 1404.
Gulf asserts that the forum selected by Burbank and Truba inconveniences the Defendant because: (1) Plaintiffs are not residents of the Northern District of Texas and none of the acts alleged in Plaintiffs' complaint occurred in the Northern District of Texas; (2) none of the witnesses expected to be called by the Plaintiffs reside in the Northern District of Texas, and (3) most of the records and witnesses of the Defendant are located in Houston, Texas and would have to be transported to Dallas, Texas for trial.
The Defendant has the burden of producing evidence that the forum should be changed to another location and the burden of proof on this issue. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). As a general rule, the Plaintiff's choice of forum is favored in resolving disputes under 28 U.S.C. § 1404(a). Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). This court has interpreted Gulf Oil to mean that the Defendant must produce substantial evidence to warrant a change of venue and other courts, although not explicitly acknowledging adherence to this standard, appear to follow it when analyzing the facts in venue cases. In light of the Fifth Circuit's recent decision in Davis v. Hill Engineering, Inc., permitting proper venue under 28 U.S.C. § 1391(c) in any district within the state of incorporation of a defendant corporation, this court believes that in this type of situation a Plaintiff's choice of forum should not receive paramount consideration. The Defendant still has the burden of proof to show that the forum selected by Plaintiff should be changed to another permissible location, but the Court will apply a preponderance *823 of the evidence standard to evaluate the facts, rather than requiring the Defendant to produce substantial evidence and meet a more difficult burden. This Court recognizes that in a large multi-district state like Texas, a Plaintiff could severely handicap a corporation by suing the corporation far from its place of business.
The Plaintiffs in this case sued the Defendant, a Texas corporation, in a district other than a district in which Defendant corporation was doing business. Plaintiffs are not residents of the Northern District of Texas, and the cause of action did not arise in the Northern District of Texas. Defendant has designated eleven witnesses, all located in the Southern District of Texas, that it expects to testify at trial and who will be inconvenienced by having the trial occur in the Northern District. The absence of some of these witnesses, who are key employees of Gulf, from the Houston area may hamper Defendant's business activities. Most of the documents that will have to be produced at the trial are located in Houston, Texas, in the Southern District of Texas, and Gulf will incur great expense in transporting these documents to Dallas. These facts are set forth in an affidavit attached to Defendant's motion to transfer. It is undisputed that Gulf does business in the Southern District of Texas, Houston Division and that this case might have been brought in that district. 28 U.S.C. § 1391(c); 28 U.S.C. § 1404(a).
Plaintiffs have filed a counter affidavit in which it is stated that two of Plaintiffs' witnesses reside in the Northern District of Texas, and would be inconvenienced by trial in the Southern District of Texas. One witness is a director and chairman of Burbank who was personally involved in the initial contacts between Gulf and Burbank which resulted in Burbank procuring substantial orders for Plaintiffs' goods in the Indonesia market. The other witness, over whom Plaintiff maintains no control, was a director of Burbank at the time the transactions involved in this lawsuit occurred but is no longer a director, officer or employee. This witness was personally involved in numerous conversations with Gulf concerning sales in Indonesia and commissions to be paid Plaintiffs, and would be called to testify on these matters.
The Court has considered the fact that Plaintiff may be forced to try this case in a forum where at least one important plaintiff witness may not be compelled to attend, Commercial Solvents Corp. v. Liberty Mutual Ins. Co., 371 F.Supp. 247 (D.C.N.Y. 1974), and that two plaintiff witnesses would be inconvenienced by trial in the Southern District of Texas, Alabama Great Southern Ry. Co. v. Allied Chemical Co., 312 F.Supp. 3 (D.C.Va.1970),[5] but the plaintiffs' choice of forum does not receive paramount consideration in this type of case. The Defendant has listed a large number of witnesses who will be inconvenienced by trial in the Northern District of Texas, the cause of action did not arise in the Northern District, the Plaintiffs are not residents of the Northern District, and the Defendant does no business in this district. Transfer to the Southern District of Texas will also reduce the cost of litigation. Hall v. Kittay, 396 F.Supp. 261 (D.C.Del.1975). The Defendant has carried its burden of demonstrating to the Court that the case should be transferred to the Southern District of Texas, Houston Division.
*824 It is ordered that this case should be transferred to the Southern District of Texas, Houston Division, for the reasons stated above.
NOTES
[1]  See Davis v. Hill Engineering Inc., 549 F.2d 314, n. 5, 6 (5th Cir. 1977). Judge Varner described the opposing views as follows in Fuller & Dees Marketing Group, Inc. v. Outstanding American High School Students, 335 F.Supp. 913, 914-15 (M.D.Ala.1972):

"Both parties concede that authorities are strongly divided. See generally 1, Barron & Holtzoff, Federal Practice and Procedure, Sec. 80 at 386 (Wright Ed. 1960 and 1968 Supp.); 1 Moore, Federal Practice, Para. 0.142 (5.-3) at 1494-96 (1960 rev.) Some courts hold that, where a corporation is incorporated or licensed to do business in a multi-district state, they thereby have legal authority to do business in every district in the state and are, therefore, subject to suit in every district in that state. Baksay v. Rensellear Polytech Institute, 281 F.Supp. 1007 (S.D.N.Y.1968); Carson v. Vance Trucking Lines, Inc., 245 F.Supp. 13 (W.D.S.C. 1965); De George v. Mandata Poultry Co., 196 F.Supp. 192 (E.D.Pa.1961); Minter v. Fowler & Williams, Inc., 194 F.Supp. 660 (E.D.Pa.1961); Johnstone v. New York County Gas Co., 193 F.Supp. 709 (E.D.Pa.1961); Garbe v. Humiston-Keeling & Co., 143 F.Supp. 776 (E.D.Ill.1956), rev'd on other grounds, 242 F.2d 923 (7th Cir.), cert. denied, 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55 (1957); Hintz v. Austenal Laboratories, Inc., 105 F.Supp. 187 (E.D.N.Y.1952). Cf. Vance Trucking Co. v. Canal Ins. Co., 338 F.2d 943 (4th Cir. 1964). Equally respectable authorities have held that a corporation, incorporated or licensed in a multi-district state, is a resident of, and therefore, subject to suit only in the districts in which it does business. Joscar Co. v. Consolidated Sun Ray, Inc., 212 F.Supp. 634 (E.D.N.Y.1963); Westerman v. Grow, 198 F.Supp. 307 (S.D.N.Y.1961); Johnson v. B. G. Coon Construction Co., 195 F.Supp. 197 (E.D.Pa.1960); Sawyer v. Soaring Society of America, 180 F.Supp. 209 (S.D.N.Y. 1960); Jacobson v. Indianapolis Power & Light Co., 163 F.Supp. 218 (N.D.Ind.1958); Cf. Torres v. Continental Bus System, Inc., 204 F.Supp. 347 (S.D.Tex.1962). The wealth of authority on both sides of the question compels the conclusion that the statute is ambiguous, and a court, construing the statute, must search for the intent of Congress."
[2]  Davis v. Hill Engineering Inc., 549 F.2d 314, 323-324 (5th Cir. 1977).
[3]  Courts, for example have reached different results in deciding: (1) whether it is important that a forum apply familiar law, Atlantic Richfield Co. v. Stearns-Roger, Inc., 379 F.Supp. 869 (E.D.Pa.1974) (Little weight accorded application of foreign law); Scaramuzzo v. American Flyers Airline Corp., 260 F.Supp. 746 (E.D.N.Y. 1966) (Proper factor to consider); (2) whether the convenience of counsel may be considered by the trial judge in the venue transfer decision, Faigenbaum Machinery, Inc. v. Scott & Williams, Inc., 344 F.Supp. 1267 (S.D.N.Y.1972) (minor factor); Mobil Oil Corp. v. W. R. Grace & Co., 334 F.Supp. 117 (S.D.Tex.1971) (Convenience of counsel bears on convenience of parties).
[4]  The Supreme Court included a partial list of considerations in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1946).

"Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action, and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The Court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, `vex', `harass', or `oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.
Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself."
Other cases on these and other factors include: minor plaintiff, Swanson v. Badger Mutual Ins. Co., 275 F.Supp. 544, 548 (N.D.Ill. 1967) (courts should be careful of granting change of venue); state law, Wright v. American Flyers Airline Corp., 263 F.Supp. 865, 867 (D.S.C.1967) (in diversity case forum familiar with state law preferred); third party, Popkin v. Eastern Air Lines, Inc., 253 F.Supp. 244 (E.D.Pa.1966) (Ability to join third parties in transferee forum); source of evidence, Polin v. Conductron Corp., 340 F.Supp. 602, 605 (E.D. Pa.1972); overcrowded calendar docket, Xerox Corporation v. Litton Industries, 353 F.Supp. 412 (S.D.N.Y.1973); court convenience, Pfizer v. Lord, 447 F.2d 122 (2nd Cir. 1971) (Not usually factor but no abuse of discretion); distance, Arnold v. Smith Motor Co., 389 F.Supp. 1020 (N.D.Iowa 1974) (Not a factor, but note that courts will consider expense of litigation, and distance will affect costs); expense of litigation, Hall v. Kittay, 396 F.Supp. 261 (D.Del. 1975) (Reduction of costs at transferee location); similar actions pending in same court, Hall, supra; plaintiff may change venue Harry Rich Corp. v. Curtiss-Wright Corp., 308 F.Supp. 1114 (S.D.N.Y.1969).
[5]  After this case was transferred to the Southern District of Mississippi from the Eastern District of Virginia, Judge Dan Russell granted defendant's motion for summary judgment in an unreported decision. Plaintiff successfully appealed this dismissal. Alabama Great Southern Railway Co. v. Allied Chemical Corp., 467 F.2d 679 (5th Cir. 1972). The case summary to this Fifth Circuit opinion erroneously cited Judge Merhige's reported opinion which transferred the case to the Southern District of Mississippi and attributed that opinion to Judge Russell. This mistake was repeated in Shepherd's Federal Citations, Supplement 1969-1975 where it indicates that Judge Mehrige's order was reversed. The Fifth Circuit opinion actually deals only with Judge Russell's decision on the merits of the case.

After remand to Judge Russell, the case was appealed again. Alabama Great Southern Railroad Co. v. Allied Chemical Corp., 501 F.2d 94 (5th Cir. 1974) and the panel opinion reversing the district court on direct appeal was adopted by the en banc court of the Fifth Circuit. 509 F.2d 539 (5th Cir. 1975) (per curiam).


                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-1870
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

DARYL RAMONE WILSON, SR.,
                                        Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
          No. 05 CR 30031—William D. Stiehl, Judge.
                        ____________
 ARGUED JANUARY 5, 2007—DECIDED SEPTEMBER 18, 2007
                    ____________

  Before FLAUM, MANION, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. The district court sentenced Daryl
Wilson to 180 months’ imprisonment after he pleaded
guilty to possessing 488 grams of cocaine with intent to
distribute. Wilson’s advisory sentencing guidelines
range reflected enhancements for obstruction of justice
and relevant conduct, as well as criminal history enhance-
ments for committing the present offense while on super-
vised release and within two years of his release from
federal prison in 1998. Wilson attacks these enhance-
ments on two grounds. First, he claims they are the
product of unconstitutional judicial factfinding. Second, he
argues the district court erroneously concluded that
more than 5 kilograms of cocaine was attributable to
2                                               No. 06-1870

him as relevant conduct and that he obstructed justice in
the course of attempting to flee federal agents.
   We have repeatedly rejected Wilson’s first argument
and do so again here. We also find no error in the district
court’s specific application of the guidelines. The record
establishes that the 488-gram cocaine sale that formed
the basis for the charged offense was merely the latest
in a continuous series of large cocaine deals Wilson
participated in since his release from federal prison in
1998. These deals, which easily totaled well over 5 kilo-
grams, occurred monthly (sometimes twice a month),
involved the same cast of characters and a common
accomplice, and all took place in the St. Louis area. Thus,
the district court did not err in attributing at least 5
kilograms of cocaine to Wilson as relevant conduct or in
applying the criminal history enhancements. Finally, the
court properly applied the obstruction enhancement
because Wilson’s vehicular movements upon being con-
fronted by federal agents were sufficient to constitute
“flight” as that term is defined by the applicable guideline.

                     I. Background
  On February 13, 2004, a confidential informant told
federal agents that Daryl Wilson was about to make a
large cocaine sale in a gas station parking lot in St. Clair
County, Illinois. The agents staked out the gas station on
the lookout for Wilson’s car, a black Pontiac. When a black
Pontiac pulled into an adjacent parking lot, several agents
in uniform approached the car to investigate. One agent
parked his van behind the Pontiac and walked toward
the driver’s window. The driver of the Pontiac, later
identified as Wilson, began to pull forward as if to leave
but stopped when the car of a second agent pulled up and
blocked his path. The second agent drew his weapon and
pointed it at Wilson, who responded by shifting his car
No. 06-1870                                               3

into reverse and backing up a few feet. The car’s back-
ward lurch caused the first agent, who was alongside the
driver’s side of the Pontiac, to fear for his own safety and
draw his weapon. This episode forms the basis for the
sentencing guidelines enhancement Wilson received for
obstructing justice under U.S.S.G. § 3C1.2.
  After ordering Wilson out of his car, the agents looked
in the backseat and found 488 grams of cocaine. Later
that day Drug Enforcement Agency (“DEA”) agents
interviewed Wilson, who admitted possessing the 488
grams of cocaine with intent to deliver. In addition, Wilson
told the agents that since June 2003, he had purchased at
least 1.125 kilograms of cocaine from a dealer named
“Mike.” Wilson said that he also sold cocaine to various
customers, including at least 1 kilogram to Manfred
McGee. McGee, who was already cooperating with the
DEA, had previously told investigators that Wilson
obtained half-kilogram packages of cocaine from a dealer
named Bill Cooper at least twice a week (McGee brokered
these deals for a $2000 fee).
  Later that day, a confidential informant confirmed
that since Wilson’s release from federal prison in 1998,
Wilson regularly obtained at least 1 to 2 kilograms of
cocaine per month from Cooper. After Wilson’s arrest, two
other men admitted purchasing a total of 765 grams of
cocaine from Wilson. Together with Wilson’s admissions
during the interview, these witness statements led the
district court to conclude under U.S.S.G. § 2D1.1(c) that
more than 5 kilograms of cocaine was attributable to
Wilson as relevant conduct for sentencing purposes. The
jump from 488 grams to more than 5 kilograms resulted
in an 8-level increase in Wilson’s base offense level,
which increased from 24 to 32. Because his 2-level down-
ward adjustment for acceptance of responsibility was
offset by his 2-level obstruction adjustment, 32 was also
Wilson’s total offense level.
4                                                  No. 06-1870

  Wilson’s prior cocaine dealing also affected the computa-
tion of his criminal history category. Based on Wilson’s
confession and the foregoing witness statements, the
district court found that Wilson had been “in the busi-
ness . . . of dealing in cocaine” since before 2003. The
district court’s treatment of Wilson’s prior drug dealing
as relevant conduct essentially folded it into the present
offense for criminal history purposes. U.S.S.G. § 4A1.1 cmt.
nn.4 & 5 (2005). Consequently, the court determined
Wilson committed the offense within two years of his
release from prison in 1998 and while on supervised
release (which expired in June 2003), which resulted in a
3-point criminal history enhancement under U.S.S.G.
§ 4A1.1(d)-(e). The Category III criminal history, when
combined with Wilson’s offense level of 32, yielded an
advisory guidelines range of 151 to 188 months. The
court overruled Wilson’s objections to the guidelines
enhancements and imposed a sentence of 180 months.

                        II. Discussion
   Wilson asks us to reduce his sentence to 57 months. He
maintains he should not have received the relevant
conduct, obstruction of justice, or criminal history en-
hancements, and that his guidelines range should only
reflect the 488 grams of cocaine he pleaded guilty to
possessing. He identifies that range as 45 to 57 months,
but believes 57 months is appropriate in light of the
district court’s decision to sentence him at the high end of
the advisory range. In support of his position, Wilson
first makes a legal argument: that the guidelines en-
hancements are unconstitutional under Apprendi1 and
its progeny because they are premised upon conduct

1
    Apprendi v. New Jersey, 530 U.S. 466 (2000).
No. 06-1870                                                  5

neither admitted by him nor found by a jury. He also
makes the factual claim that the evidence does not sup-
port the district court’s application of the guidelines
enhancements.
  Wilson’s request that we “resentence” him to 57 months
is improper; the choice of sentence is for the district
court, not the court of appeals. Wilson’s constitutional
argument is “frivolous . . . and it ignores the effect that
Booker had on federal sentencing.” United States v. White,
472 F.3d 458, 464 (7th Cir. 2006). We have repeatedly
rejected it, reminding counsel that the constitutionality
of judicial factfinding under the guidelines was resolved
when the Supreme Court rendered the guidelines advisory
in the remedial opinion in United States v. Booker, 543
U.S. 220, 233-34 (2005). White, 472 F.3d at 464; see also
United States v. Owens, 441 F.3d 486, 490 (7th Cir. 2006);
United States v. Robinson, 435 F.3d 699, 701-02 (7th Cir.
2006); United States v. Bryant, 420 F.3d 652, 656 (7th Cir.
2005); United States v. LaShay, 417 F.3d 715, 719 (7th Cir.
2005).
   We review the district court’s application of the guide-
lines and its underlying factual findings for clear error.
United States v. Stitman, 472 F.3d 983, 986 (7th Cir.
2007). A finding that a defendant’s relevant conduct
includes uncharged drug quantities is a factual determina-
tion entitled to our deference “unless we have a definite
and firm conviction that a mistake has been made.” United
States v. Fudge, 325 F.3d 910, 920 (7th Cir. 2003). Never-
theless, because uncharged drug quantities can add
months or years (over eight years in Wilson’s case) to a
defendant’s advisory guidelines range, the evidence re-
lied upon by the district court at sentencing must bear
sufficient indicia of reliability. See United States v. Acosta,
85 F.3d 275, 292 (7th Cir. 1996). In Wilson’s case, there
must be reliable evidence to support the district court’s
6                                              No. 06-1870

findings that (1) Wilson possessed at least 5 kilograms of
cocaine, and (2) that the uncharged transactions were
properly deemed relevant conduct, i.e., that under U.S.S.G.
§ 1B1.3(a)(2), they were “part of the same course of
conduct or common scheme or plan” as Wilson’s offense of
conviction—possession of 488 grams with intent to dis-
tribute on February 13, 2004. See id. at 279.
  The district court did not commit clear error in finding
Wilson possessed more than 5 kilograms of cocaine. Wilson
himself admitted possessing at least 1.613 kilograms (the
488 grams he pleaded to plus the 1.125 kilograms he
admitted purchasing from “Mike”). Two other witnesses
admitted purchasing at least 765 additional grams from
Wilson, bringing the total to roughly 2.4 kilograms.
Together with (1) Wilson’s admission that he had been
purchasing additional quantities for resale from “Mike”
since June 2003, (2) McGee’s statement that Wilson made
half-kilogram purchases from Cooper at least twice a
week, and (3) the confidential informant’s confirmation
that Wilson had been purchasing 1 to 2 kilograms per
month from Cooper since his release from prison in 1998,
reliable evidence supports the finding that Wilson pos-
sessed at least 5 kilograms of cocaine with intent to
distribute.
  That the court had to estimate the drug quantity be-
yond the 2.4 kilograms specifically accounted for is imma-
terial. See United States v. Romero, 469 F.3d 1139, 1147
(7th Cir. 2006) (“In determining relevant conduct, ‘the
district court is entitled to estimate drug quantity using
testimony about the frequency of dealing and the amount
dealt over a specified period of time.’ ” (quoting United
States v. Noble, 246 F.3d 946, 952 (7th Cir. 2001))). Nor
does it matter, as Wilson complains in his brief, that the
drug quantity finding was partially based on the “asser-
tions of criminals quoted in police reports furnished to the
probation officer.” Reliable drug quantity evidence need
No. 06-1870                                                     7

not come directly from sworn witnesses at sentencing. It
may also come from the presentence report provided the
report is itself based on reliable witness statements;
convicted felons and confidential informants are not
categorically unreliable, as Wilson appears to suggest. See
id. Wilson gives no other reason for discrediting the
statements of the witnesses contained in the presentence
report and testified to at sentencing by the DEA agent
who took them. The evidence was sufficient to support the
district court’s drug quantity finding.2
  Whether Wilson’s possession of those 5 kilograms of
cocaine was relevant conduct requires somewhat more
comment. The relevant conduct “aggregation” rule, see
U.S.S.G. §§ 1B1.3(a)(2), 2D1.1, is a powerful prosecutorial
tool. The offense level for a relatively minor drug crime
may be dramatically increased when uncharged drug
quantities introduced at sentencing are aggregated.
United States v. Ortiz, 431 F.3d 1035, 1040 (7th Cir. 2005).
This is a logical outgrowth of the “real offense” philosophy
embodied in the guidelines, see U.S.S.G. § 1A1.1 cmt. n.1,
but we have previously stated that we will carefully
scrutinize uncharged relevant drug conduct to ensure it
bears “the necessary relation to the convicted offense.”
United States v. Bacallao, 149 F.3d 717, 719, 721 (7th Cir.
1998) (quoting United States v. Duarte, 950 F.2d 1255,
1263 (7th Cir. 1991)); see also Ortiz, 431 F.3d at 1041

2
   Wilson also claims the district court erred by denying his oral
request at sentencing that the government furnish the court
with the criminal history reports of the witnesses listed in the
presentence report. In denying the motion, the judge stated he
was already familiar with the backgrounds of the witnesses.
Determining the reliability of hearsay testimony at sentencing
is firmly within the district court’s discretion, United States v.
Garcia, 66 F.3d 851, 858 (7th Cir. 1995), and we find no abuse
of discretion here.
8                                               No. 06-1870

(vacating sentence because relevant drug conduct not
sufficiently related).
  The mere fact that Wilson engaged in drug transactions
other than the one underlying his offense of convic-
tion does not automatically make those transactions
relevant conduct. Ortiz, 431 F.3d at 1041. Relevant
conduct must be “part of the same course of conduct or
common scheme as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2). Because the clear error standard also
governs this inquiry, we begin with the district court’s
specific findings regarding whether the prior drug trans-
actions were part of the same course of conduct or common
scheme as Wilson’s February 2004 drug deal. Acosta, 85
F.3d at 280. We have generally required the district court
to explicitly state and support its finding that uncharged
drug quantities are sufficiently related to the offense
of conviction. United States v. Arroyo, 406 F.3d 881, 889
(7th Cir. 2005).
  Here, neither the district court nor the presentence
report writer explicitly used the phrases “same course of
conduct” or “common scheme.” But the court did find at
sentencing that Wilson had been regularly dealing cocaine
since his release from prison in 1998; that he was a part
of an “ongoing circle of dealers” from whom he bought and
sold during that time; and that he was a sophisticated
dealer who typically trafficked in large quantities of
cocaine. That the court failed to invoke the specific phrase-
ology of U.S.S.G. § 1B1.3(a)(2) does not mean it failed to
make the necessary finding. See Acosta, 85 F.3d at 280
(noting that even a failure to make any express find-
ings does not necessarily preclude us from upholding a
relevant conduct finding). The district judge plainly
believed Wilson’s uninterrupted, large-scale cocaine
trafficking constituted both a “common scheme” and was
part of the “same course of conduct” as his offense of
conviction.
No. 06-1870                                                9

  More specifically, to be a “common scheme,” Wilson’s
offense of conviction and the uncharged conduct must “be
substantially connected to each other by at least one
common factor, such as common victims, common accom-
plices, [or] common purpose.” U.S.S.G. § 1B1.3(a)(2) cmt.
n.9(A). Because “Mike” sold Wilson the 488 grams leading
to his conviction, Wilson’s additional cocaine purchases
from “Mike” (at least 1.125 kilograms since June 2003)
involved a common accomplice and were properly deemed
relevant conduct. United States v. Delatorre, 406 F.3d 863,
867 (7th Cir. 2005). Moreover, the record indicates Wilson
planned on selling the 488 grams involved in the offense of
conviction to McGee, the same dealer who admitted
regularly brokering half-kilogram cocaine deals between
Wilson and Cooper. McGee also said these Wilson-Cooper
deals happened two to three times per week, though he
never mentioned the date on which they commenced. That
information was instead supplied by the confidential
informant, who stated that Wilson began buying from
Cooper upon his release from federal prison in 1998.
Accordingly, the record establishes that McGee was a
common accomplice in the large Wilson-Cooper transac-
tions that had been regularly occurring since 1998.
McGee’s presence ties the Wilson-Cooper deals to the
Wilson-“Mike” deals and shows a continuous and com-
mon scheme—or, as the district court put it, an “ongoing
circle of dealers.”
  The Wilson-Cooper deals were also properly considered
part of the “same course of conduct” as the 488-gram
Wilson-“Mike” deal. Uncharged transactions are part of
the same course of conduct as the offense of conviction if
they are so related as to “warrant the conclusion that they
are part of a single episode, spree, or ongoing series of
offenses.” U.S.S.G. § 1B1.3(a)(2) cmt. n.9(B). Decisive
factors include the “similarity of the offenses, the regular-
ity (repetitions) of the offenses, and the interval between
10                                             No. 06-1870

the offenses.” Id. Based in part on the Wilson-Cooper
deals, the district court found that Wilson “was involved
in dealing in cocaine from the time he was released
from his prior sentence up until the time he was arrested.”
The court also found that Wilson regularly dealt in large
quantities of cocaine during this period, whether ob-
tained from Cooper or “Mike.” Put another way, the court
viewed the 488-gram sale Wilson was in the process of
making in February 2004 as the latest in an unbroken
series of large cocaine deals Wilson regularly made in
the St. Louis area from 1998 until his arrest.
  Accordingly, the district court did not clearly err in
treating Wilson’s prior cocaine transactions as relevant
conduct for offense level purposes. It follows necessarily
that the court also properly enhanced Wilson’s criminal
history category under U.S.S.G. § 4A1.1. That guidelines
provision adds three criminal history points if the defen-
dant committed the “instant offense” while on supervised
release and within two years of release from imprison-
ment. U.S.S.G. § 4A1.1(d)-(e). Application note 4 makes
clear that the “instant offense” includes relevant conduct,
which in Wilson’s case includes the large drug deals he
made with Cooper that began upon Wilson’s release from
prison in 1998. Any deal Wilson made with Cooper in 1998
obviously occurred within two years of his release from
prison and during his term of supervised release, which
ran from 1998 to 2003.
  Wilson’s lone remaining challenge concerns his 2-level
obstruction enhancement for recklessly endangering
agents while attempting to flee the parking lot. The
relevant guideline applies to any defendant who “reck-
lessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a
law enforcement officer.” U.S.S.G. § 3C1.2. Wilson does
not challenge the district court’s finding that he reck-
lessly endangered the agents by moving his car forward
No. 06-1870                                              11

and backward with the agents in close proximity. He
instead argues that such minor vehicular movements
cannot constitute intentional flight or attempted flight. We
disagree, as a defendant need not be engaged in full-
fledged flight for the guideline to apply. The application
notes explain that reckless endangerment during flight
is “to be construed broadly and includes preparation
for flight.” U.S.S.G. § 3C1.2 cmt. n.4.
  The district court found that after seeing the first agent
pull up behind him, Wilson drove his car forward but
was stopped after a short distance because a second agent
pulled in front of him and blocked his path. Hemmed in
from the front, Wilson then put his car in reverse and
backed up toward the first agent. The court held that
“Wilson was attempting to flee these officers, and . . . he
nearly struck or rammed their vehicles.” The district
court’s findings, which were based on the credible testi-
mony of one of the arresting agents and are not clearly
erroneous, support the court’s conclusion that Wilson was
preparing to flee. The obstruction enhancement was
properly applied.
                                                AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit

                   USCA-02-C-0072—9-18-07


                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0137n.06

                                           No. 10-3749

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                FILED

UNITED STATES OF AMERICA,                         )                                 Feb 03, 2012
                                                  )                           LEONARD GREEN, Clerk
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
JEFFREY A. JUSTICE,                               )   SOUTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellee.                        )

       Before: BOGGS, ROGERS and SUTTON, Circuit Judges.

       SUTTON, Circuit Judge. Jeffrey Justice, who goes by Jay, lives near his father, Jeffrey

Justice, who goes by Jeff, in a rural area outside of Newark, Ohio. After gathering evidence that

both Justices were involved in a large marijuana-trafficking operation, police sought and obtained

search warrants for their properties. The district court granted Jay Justice’s motion to suppress the

evidence found in his home as well as a statement he made following the search. Because the

officers who executed the search warrant could have relied in good faith on the magistrate’s

determination that the information supporting the warrant application established probable cause,

we reverse.

                                                 I.
No. 10-3749
United States v. Justice

        On December 18, 2009, the Newark police department received a tip from the Drug

Enforcement Agency that a white tractor-trailer suspected of involvement in drug trafficking was

parked at the home of Jay’s father. Two officers set up surveillance of the property that afternoon

and saw the father, the white truck and what looked like several large bales of marijuana inside a

pole barn. When the truck pulled out of the barn and drove away, one of the officers followed it.

        Three minutes after the truck left, one of the officers saw Jay Justice drive over to the barn

from his house, located nearby. Jay helped his father move several items around the barn, including

two large boats and several pieces of machinery.

        In the meantime, the truck made its way to Interstate 70, where a highway patrolman pulled

it over for speeding. After a drug dog reacted positively during a walk around the truck’s exterior,

the patrolman searched the truck and found $500,000 in cash wrapped in heat-shrunk plastic in a

cardboard box. The driver admitted he had just delivered 518 pounds of marijuana to a barn

matching the description of the one on the father’s property and that he met two men there—one

named Jeff, the other named Jay.

        Armed with this information, officers sought search warrants for the two Justices’ properties.

One of the officers prepared an affidavit describing these facts and presented it to a state court judge.

At a “search warrant proceeding,” a municipal judge swore in the officer, and the prosecutor asked

the officer questions about his knowledge of the Justices’ activities. The officer told the judge that,

although Jay Justice’s tax returns revealed little income in recent years, he owned a $200,000 motor

                                                  -2-
No. 10-3749
United States v. Justice

home (in addition to his residence), and he frequently used the motor home to travel across the

country to attend motocross races. The officer also mentioned anonymous tips that Jay sold

marijuana from his house. The judge issued search warrants for both properties.

        Officers executed both search warrants on December 20, 2009. They did not find any

marijuana inside Jay’s house, but they did find a transaction register and eight firearms. The officers

advised Jay of his Miranda rights, and Jay admitted he was a convicted felon and the firearms

belonged to him.

        A federal grand jury returned an indictment charging Jay with being a felon in possession of

a firearm. See 18 U.S.C. § 922(g). He filed a pretrial motion to suppress the evidence seized during

the search and the statement he made to police admitting ownership of the guns, claiming two

defects: (1) the affidavit contained a material false statement, incorrectly saying that Jeff Justice (the

father) lived at Jay’s address; and (2) the warrant application did not establish probable cause

because it did not show a nexus between drug trafficking and Jay’s house. The district court denied

relief on the first ground, finding the mistake was a typo, but granted relief on the second ground.

The court also suppressed the statement that Jay Justice made to police after the search as fruit of

the poisonous tree. The United States filed this interlocutory appeal. See 18 U.S.C. § 3731.

                                                  -3-
No. 10-3749
United States v. Justice

                                                  II.

        Because the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment

violations,” Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419, 2426 (2011), a criminal defendant

seeking to suppress the fruits of a search must do more than demonstrate that the police violated the

Fourth Amendment. He must show that suppressing the evidence will yield “[r]eal deterrent value.”

Id. at 2427. That burden is especially relevant when officers follow the constitutionally preferred

route, namely presenting evidence of illegal activity to a neutral magistrate who finds probable cause

and issues a search warrant. Ornelas v. United States, 517 U.S. 690, 699 (1996). To suppress the

fruits of such a search, a defendant must show that, despite the magistrate’s authorization, the police

could not have relied on the warrant in good faith. See United States v. Leon, 468 U.S. 897, 922

(1984). One way to do this is to demonstrate that the information presented in support of the warrant

was “so lacking in indicia of probable cause as to render official belief in its existence entirely

unreasonable.” Id. at 923.

        In deciding whether the warrant application contained sufficient facts to support a reasonable

belief in probable cause, we consider the facts set forth in the affidavit and the facts presented

during the search warrant proceeding to the issuing judge. United States v. Frazier, 423 F.3d 526,

535–36 (6th Cir. 2005). Here are the facts: (1) officers observed a tractor-trailer believed to be

involved in drug trafficking and bales of what appeared to be marijuana in a barn on the father’s

property; (2) shortly after the tractor-trailer left, officers saw Jay Justice drive over from his house

and help his father move items around the barn; (3) when officers later pulled over the truck they

                                                 -4-
No. 10-3749
United States v. Justice

found $500,000 in cash inside and the driver admitted to meeting “a man named Jeff and a man

named Jay” at the barn and delivering 518 pounds of marijuana, R. 16-1 at 5; (4) over the years,

police had received tips that Jay obtained marijuana from his father and sold it from his home; and

(5) Jay’s lifestyle did not match the modest income he reported on his tax returns.

       On this record, would it be “entirely unreasonable” for an officer to believe that probable

cause had been established—that there was “a fair probability that contraband or evidence of a crime

w[ould] be found” in Jay Justice’s home? Illinois v. Gates, 462 U.S. 213, 238 (1983). Are these

facts “completely devoid of any nexus” connecting Jay Justice’s home with illegal activity? United

States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en banc). No and no.

       The facts presented to the judge show that Jay Justice was involved in a drug-trafficking

operation, and a large one at that. “In the case of drug dealers, evidence is likely to be found where

the dealers live.” United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998); see also United States

v. Miggins, 302 F.3d 384, 393–94 (6th Cir. 2002). Relying on this commonsense insight, we

recently held that a warrant affidavit saying that a suspect had purchased large amounts of cocaine

on several occasions supported the inference that he was engaged in drug trafficking and accordingly

established probable cause to search his home. United States v. Gunter, 551 F.3d 472, 481–82 (6th

Cir. 2009). As in Gunter, this warrant affidavit contained evidence directly tying Justice to drug-

trafficking. The driver who delivered more than 500 pounds of marijuana to the father’s barn told

police that “a man named Jay” was present when he made the delivery. R. 16-1 at 5. Officers also

saw Jay Justice help his father move items around the barn, presumably to make room for the new

                                                -5-
No. 10-3749
United States v. Justice

product. And despite having reported little income on his tax returns for the past several years, Jay

led a relatively expensive lifestyle. Jay’s money came from somewhere, and the other evidence

could convince a reasonable officer that it came from dealing drugs. See United States v. Humphrey,

287 F.3d 422, 431–32 (6th Cir. 2002), overruled on other grounds by Harris v. United States, 536

U.S. 545 (2002).

       Officers also had received reports over the years that Jay obtained marijuana from his father

and sold it to customers out of his house. True, neither the affidavit nor Officer Romano’s testimony

before the issuing judge provided any specifics about these alleged reports, such as who made them

and when the transactions took place. But even though anonymous tips of this sort may not support

a good-faith belief in probable cause on their own, the other evidence of Justice’s involvement in

the marijuana-trafficking operation corroborated the tips. Anonymous tips assume a higher status

in the probable-cause calculation when other independent evidence corroborates them. See United

States v. Thomas, 605 F.3d 300, 307–08 (6th Cir. 2010); United States v. Dyer, 580 F.3d 386,

391–92 (6th Cir. 2009). Taken together, the anonymous tips that Jay sold marijuana from his home

and the other evidence in the warrant application support a reasonable belief that the warrant and

affidavit could have established probable cause of evidence of drug trafficking in Jay’s house.

       Neither United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006), nor United States v.

Laughton, 409 F.3d 744 (6th Cir. 2005), nor United States v. Hython, 443 F.3d 480 (6th Cir. 2006),

is to the contrary. In each case we held that the affidavit accompanying the search warrant was so

deficient that no reasonable officer could believe it established probable cause. McPhearson, 469

                                                -6-
No. 10-3749
United States v. Justice

F.3d at 527; Laughton, 409 F.3d at 751; Hython, 443 F.3d at 489. The affidavit in McPhearson

stated only that officers found a small amount of cocaine, 6.4 grams, in the suspect’s front pocket

when they arrested him in front of his house on an unrelated charge. 469 F.3d at 521. Unlike the

warrant affidavit here, that affidavit contained no evidence that the suspect was selling drugs. Id.

at 527. The affidavit in Laughton stated only that a confidential informant had told police that the

suspect kept drugs on his person and stashed in his home. 409 F.3d at 751. The affidavit contained

no corroborating evidence and did not even allege that the informant had purchased drugs from the

suspect. Id. Here, by contrast, officers presented the issuing judge with evidence of anonymous tips

that Justice sold marijuana from his house, which corroborated the other evidence that he was

involved in drug trafficking with his father. And the affidavit in Hython suffered from a staleness

problem because, although it said that officers had observed a single controlled buy from the

suspect’s apartment, it did not say when the controlled buy occurred. 443 F.3d at 486–87. The

affidavit in this case suffers from no such infirmity, as it said that Justice had participated in the

receipt of more than 500 pounds of marijuana just hours before the warrant issued.

                                                 III.

       For these reasons, we reverse and remand to the district court for further proceedings.

                                                -7-


784 N.W.2d 183 (2010)
2010 WI App 46
STATE
v.
BAAKE.
No. 2009AP713-CR.
Court of Appeals of Wisconsin.
February 4, 2010.
Unpublished Opinion Affirmed.