United States v. Harris, Spencer ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2195
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SPENCER HARRIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CR 30058—Jeanne E. Scott, Judge.
____________
ARGUED APRIL 8, 2008—DECIDED AUGUST 6, 2008
____________
Before KANNE, WILLIAMS, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Spencer Harris was convicted
after a jury trial on five separate criminal counts: one
count of distributing crack cocaine, 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), one count of distributing powder cocaine,
id. §§ 841(a)(1), (b)(1)(C), one count of possessing crack
cocaine with intent to distribute, id. §§ 841(a)(1), (b)(1)(B),
one count of being a felon in possession of a firearm,
18 U.S.C. §§ 922(g)(1), 924(c)(1)(B), and one count of
possessing a firearm in furtherance of a drug-trafficking
crime, id. § 924(c)(1)(A). The district court sentenced
Harris to a total of 460 months’ imprisonment. On appeal,
2 No. 07-2195
Harris claims that the district court made several
erroneous evidentiary rulings, which deprived him of a
fair trial. We do not believe that the district court
abused its discretion in admitting the challenged evidence
against Harris, so we affirm his conviction.
Because Harris’s crimes involved crack cocaine, after
oral argument we ordered the parties to file supple-
mental memoranda on the propriety of the district court’s
sentence in light of Kimbrough v. United States, 128 S. Ct. 558(2007), and United States v. Taylor, 520 F.3d 746 (7th Cir.
2008). After considering the parties’ responses, we do not
believe that Kimbrough or Taylor invalidates Harris’s
sentence, so we affirm the sentence as well.
I. HISTORY
On June 22, 2006, officers of the Springfield, Illinois,
Police Department arrested David Haynes for possession
of crack cocaine and marijuana that the officers recovered
from a baby seat in Haynes’s house during a parole
check. After his arrest, Haynes agreed to cooperate with
the police and to provide information about Spencer
Harris, whom Haynes claimed sold him the crack cocaine.
Haynes explained to the police that he could set up a
drug purchase from Harris at any time, merely by tele-
phoning him.
The Springfield police officers brought Haynes to meet
with Drug Enforcement Administration (DEA) agents,
who arranged for Haynes to participate in two con-
trolled purchases of drugs from Harris. At the agents’
direction, Haynes attempted to contact Harris on Harris’s
cell phone to schedule a meeting to purchase drugs. The
No. 07-2195 3
agents outfitted Haynes with audio and video re-
cording equipment, searched him to ensure that he was
not carrying contraband, and gave him money to pur-
chase cocaine—preferably crack cocaine—from Harris.
The first controlled purchase occurred on the day of
Haynes’s arrest. Haynes first tried contacting Harris
using a DEA office telephone, to no avail. Haynes then
placed a second call to Harris from his personal cell
phone, and Harris’s girlfriend answered. Haynes arranged
to meet Harris at the residence of Harris’s girlfriend,
located at 1904 Greentree Street, in Springfield, Illinois.
There, Harris sold powder cocaine to Haynes and agreed
to convert the powder into crack cocaine while Haynes
waited; however, Harris could not find baking soda,
so Haynes left with the powder cocaine. Haynes then met
the DEA agents, who searched Haynes, recovered the
powder cocaine from him, and downloaded the audio
and video recordings onto a computer.
The second controlled purchase took place one week
later at Harris’s home, located at 1844 South 14th Street,
also in Springfield, Illinois. Haynes again arranged the
meeting with Harris by cell phone, and DEA agents
met Haynes at a nearby golf course, where they sup-
plied him with recording equipment and a bicycle,
searched him for contraband, and provided him with
money. Haynes cycled to Harris’s house and met Harris
in the backyard. Haynes purchased crack cocaine from
Harris, and then immediately returned to the golf course,
where the DEA agents recovered the crack cocaine and
downloaded the new audio and video recordings.
Law enforcement officers conducted surveillance of
both controlled purchases, and then obtained search
warrants for both residences. The officers executed the
4 No. 07-2195
warrants on July 6, 2006. At Harris’s girlfriend’s resid-
ence, the officers found a .22 revolver locked in a dresser
drawer, 9mm ammunition, powder cocaine, and crack
cocaine. At Harris’s residence, the officers discovered
a loaded 9mm semi-automatic pistol in a bag on the
kitchen table, powder cocaine, crack cocaine, digital
scales, individual plastic bags, drug-cutting parapher-
nalia, and $2,000 in cash. The officers arrested Harris. At
the time of his arrest, Harris had a key to his own house,
a key to his girlfriend’s house, and a key to the locked
dresser drawer from which the .22 revolver was recovered.
A federal grand jury issued an indictment that charged
Harris with five counts: (1) knowingly and intentionally
distributing five or more grams of a mixture or sub-
stance containing cocaine base, id. §§ 841(a)(1), (b)(1)(B);
(2) knowingly and intentionally possessing with intent to
distribute, five or more grams of a substance containing
cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(B); (3) being a
felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1),
924(c)(1)(B); (4) possessing a firearm in furtherance of a
drug trafficking crime, id. § 924(c)(1)(A)(I); and (5) know-
ingly and intentionally distributing a mixture or sub-
stance containing cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
Count 1 of the indictment was based on the crack cocaine
sold to Haynes at the second controlled purchase. Counts
2, 3, and 4 were based on the crack cocaine and the 9mm
pistol seized from the officers’ execution of the search
warrants. And Count 5 was based on the powder cocaine
sold to Haynes at the first controlled purchase.
In anticipation of trial, the government gave notice of
its intent to present evidence of other crimes, wrongs, or
acts committed by Harris. See Fed. R. Evid. 404(b). The
government’s notice delineated the “other act” evidence
No. 07-2195 5
that it intended to offer: (1) Harris sold cocaine and crack
cocaine to Haynes on numerous occasions prior to the
controlled purchases; (2) during the same period, Harris
transacted a number of drug deals with two other individ-
uals, Troy Powers and Mario Brown; (3) Harris drove
a number of luxury vehicles, including a black Lexus;
and (4) in addition to the charged firearm, officers recov-
ered the .22 revolver and 9mm ammunition during
their searches. In response to the government’s notice,
Harris filed a motion in limine, which sought to bar the
evidence of prior drug deals with Haynes, Powers, and
Brown as irrelevant and as improper propensity evi-
dence under Rule 404(b). Harris’s motion also sought
to keep out the evidence of the luxury vehicles and the
recovered-but-uncharged revolver and ammunition as
irrelevant and unfairly prejudicial.
The district court held a hearing on Harris’s motion in
early October 2006. With regard to the prior drug deals
between Harris and Haynes, the district court stated that
“those transactions . . . are relevant to show the history
between the two. And in that sense they are intricately
related to the charges found in . . . the indictment. So
things that go to their history and relationship are very
relevant and will not be barred.” The district court ex-
plained that the evidence was also admissible under
Rule 404(b) because it “would go to show the defendant’s
knowledge of cocaine, his intent to distribute it, and
it would go towards establishing the nature and extent
of the relationship between the defendant and [Haynes].”
As for the drug transactions between Harris and Powers
and between Harris and Brown, the district court ex-
plained that:
[E]vidence of those should be limited to the same
time frame that [Haynes] was purchasing crack or
6 No. 07-2195
powder cocaine from [Harris]. For that time frame
the other incidents are relevant as corroboration of
[Haynes’s] testimony, and to show that there
was a source that Harris had for purchasing the
cocaine that he in turn sold as cocaine or crack
cocaine.
The district court also determined that the evidence that
Harris drove luxury vehicles would “be relevant to
show an unaccounted for source of income if the Gov-
ernment is able to introduce other evidence that the
defendant lacked a source of income.” The district court
explained that the probative value of the vehicle evidence
would not be outweighed by prejudice, “because there’s
nothing inherently illegal or improper about owning
or driving a Lexus automobile.” Finally, with respect to
the .22 revolver and the ammunition, the court stated
“[t]he second gun doesn’t add much prejudice to the first
gun, which is required under the Government’s indict-
ment, if it’s going to prove its charge.”
The day after the hearing, Harris pled not guilty to all
five counts in the indictment, and the case proceeded to
a jury trial. During the government’s case-in-chief, the
government introduced testimony from Haynes, Powers,
Brown, Harris’s girlfriend, and several DEA agents, as
well as physical evidence and the audio and video record-
ings from the controlled purchases. The recordings por-
trayed Harris meeting with Haynes, the two men con-
versing about basketball shoes, and Harris counting
money. The recordings did not show drugs being trans-
ferred, nor did they contain dialogue about the drug
transactions.
In order to place its evidence of the controlled pur-
chases into context, the government elicited testimony
No. 07-2195 7
about other drug deals between Haynes and Harris. But
before Haynes could testify to his prior dealings with
Harris, the district court gave a limiting instruction to
the jury:
Ladies and gentlemen, you’re now hearing testi-
mony about drug transactions other than those
charged in the indictment. The ones charged in the
indictment were in June of 2006. I want you to
understand that this evidence of other drug trans-
actions is admitted for the limited purpose of
showing the defendant’s knowledge of the drugs
involved, his intent with respect to them, and the
relationship and history between the defendant
and this witness. You’re to consider the evidence of
these uncharged drug transactions only in those
respects, and for those limited purposes.
After the district court’s limiting instruction, and over
the objection of Harris’s counsel, Haynes explained that
he was a drug dealer and that he was introduced to
Harris in 2004 because he needed a new supplier of crack
cocaine. Haynes stated that he purchased a quarter ounce
of crack cocaine from Harris for $250 the first time they
met, and Haynes recounted how he regularly purchased
crack cocaine from Harris for $250 per quarter ounce
whenever Haynes wanted after placing a quick call to
Harris’s cell phone. Haynes specified that he engaged
in drug transactions with Harris about three or four
times per week until Haynes went to prison in March 2005;
once Haynes was released from prison in September 2005,
he purchased about a quarter ounce of crack cocaine from
Harris two or three times per day until his arrest. Haynes
added that he also purchased a quarter ounce of crack
cocaine from Harris for $250, without the knowledge of
8 No. 07-2195
the DEA, after the controlled purchases; the district
court repeated its limiting instruction before Haynes
testified about the subsequent drug deal.
Haynes testified that he had purchased drugs from
Harris on other occasions at both residences where the
controlled purchases occurred, and Haynes stated that
Harris had converted powder cocaine to crack for him
on other occasions. Haynes also testified that, on one
occasion, he had seen the butt of a 9mm pistol sticking
out of a couch in Harris’s house. Haynes told the jury
that when he asked Harris about the gun, Harris told
him that he needed it for protection. Harris told Haynes
that he was concerned because Brown had been arrested
while driving away from Harris’s house after a drug deal,
and Harris was worried that Brown’s family might come
after him.
The government later called Powers and Brown as
witnesses to testify about other drug deals involving
Harris. Powers testified that he sold cocaine to Harris
three or four times, beginning in 2005. Powers told the
jury that when he and Harris met, they negotiated a
purchase price by silently entering dollar amounts into a
cell phone and passing the phone between them—the two
rarely spoke and acceded to terms by nodding their
heads. Brown testified that he purchased powder co-
caine from Harris at Harris’s residence on six occasions
between the fall of 2004 and May 2005.
The government also introduced the other evidence it
specified in its pre-trial notice of intent. Evidence that
Harris drove luxury vehicles came in through several
witnesses. Harris’s girlfriend testified that Harris was not
employed from 2003 until his arrest in 2006. Despite
Harris’s unemployment, Haynes saw him driving a Nissan
No. 07-2195 9
Pathfinder and a black Lexus, and Harris’s girlfriend
confirmed that Harris drove these vehicles, in addition
to an Infinity sport-utility vehicle and a tan-colored
vehicle. Harris’s girlfriend testified that the Pathfinder
was titled in her mother’s name, two of the vehicles
were titled in Harris’s aunt’s name, and the tan-colored
vehicle was titled in Harris’s six-year-old son’s name.
The government introduced testimony about the second
gun and ammunition through DEA witnesses, who testi-
fied that a .22 revolver and 9mm ammunition had been
recovered from Harris’s girlfriend’s residence. A DEA
expert witness explained that drug dealers often arm
themselves to protect their person, drugs, and cash.
In his defense, Harris argued that Haynes had set him
up in order to secure lenient treatment from the gov-
ernment in his own case. Harris bolstered this argument
by highlighting that the recordings presented at trial did
not show any drugs changing hands. Harris also argued
that the evidence collected during the two searches did
not belong to him. For example, Harris’s counsel argued
in closing that “[t]he .22 is found in [Harris’s girl-
friend’s] house. It is in [her bedroom]. It is in [her]
dresser . . . . It is [her] gun and she had it for her own
protection.” Harris’s counsel suggested that the drugs
found at Harris’s girlfriend’s house were part of her
own “personal stash.” Harris argued, in the alternative,
that even if some of the drugs recovered during the
police searches belonged to him, they were merely for
his personal use and were not intended for distribution.
At Harris’s request, the district court revised and ex-
panded its limiting instruction prior to the jury’s delib-
erations. The new instruction explained that the “evidence
of other acts” was “not evidence that [Harris] committed
10 No. 07-2195
the acts alleged in the indictment at the times alleged.”
The court instructed the jury that such evidence should
be considered “only on the question of motive, identity,
or plan, or whether any acts of the defendant alleged in
the indictment, if proven, were done with knowledge,
intent, absence of mistake, or were not inadvertent acts.”
The instruction also reiterated that the government had
the burden of proving the acts alleged in the indictment
beyond a reasonable doubt. The jury deliberated and
found Harris guilty on all five counts of the indictment.
A probation officer then prepared a presentence investi-
gation report (PSR), in which the officer determined that
Harris was a career offender, see U.S.S.G. § 4B1.1(a),
because he had two prior qualifying felony convictions—an
Illinois conviction for aggravated battery, and an Illinois
conviction for manufacture or delivery of a controlled
substance. The probation officer accordingly assigned
Harris an offense level of 37 and a Criminal History
Category of VI. See id. §§ 4B1.1(b), (c)(2); see also 21
U.S.C. § 841(b)(1)(B) (setting statutory maximum for
distribution of controlled substance at life if defendant
has prior final felony drug conviction). Based on these
calculations, the PSR listed Harris’s guideline imprison-
ment range as 420 months to life, see U.S.S.G.
§ 4B1.1(c)(2)(A), and the probation officer recommended
a prison term of 420 months. Neither Harris nor the
government objected to the PSR.
At the sentencing hearing, the government recommended
that Harris receive a life sentence. Harris’s counsel asked
for a sentence between 300 and 360 months, arguing that
a higher sentence would result in a de facto life sentence
for Harris. The district court adopted the PSR without
change, considered the arguments advanced by the
parties, and canvassed several of the sentencing factors
No. 07-2195 11
enumerated in 18 U.S.C. § 3553(a). The court then sen-
tenced Harris to 400 months’ imprisonment on the distrib-
ution and possession-with-intent-to-distribute counts
(Counts 1, 2, and 5), and to 120 month’s imprisonment
on the felon-in-possession count (Count 3), to run con-
currently; the court also sentenced Harris to 60 months’
imprisonment on the possession-of-a-firearm-in-relation-
to-drug-trafficking count (Count 4), to run consecutively.
This yielded a total sentence of 460 months’ imprisonment,
to which the court added eight years of supervised re-
lease and a $500 special assessment.
II. ANALYSIS
Harris claims on appeal that he is entitled to a new
trial because of the district court’s evidentiary rulings.
Harris argues that “[w]hether viewed individually or in
their totality,” these rulings denied him a fair trial. Specifi-
cally, Harris contests the admission of: (1) testimony
about drug transactions with Haynes other than the
controlled purchases; (2) testimony about the prior drug
transactions with Powers and Brown; (3) testimony about
the luxury vehicles; and (4) evidence of the uncharged .22
revolver and 9mm ammunition. Harris contends that
the government’s closing argument demonstrates why
the evidence was erroneously admitted. In his supple-
mental memorandum, Harris asks that his sentence be
reversed in light of Kimbrough v. United States, 128 S. Ct. 558(2007).
A. The district court’s evidentiary rulings
We review the district court’s evidentiary rulings for
an abuse of discretion, United States v. Owens, 424 F.3d 649,
12 No. 07-2195
653 (7th Cir. 2005), including its decision to admit evidence
of “other acts” under Federal Rule of Evidence 404(b),
United States v. Price, 516 F.3d 597, 603 (7th Cir. 2008), and
its decision to admit evidence under the “intricately
related” doctrine, United States v. Wantuch, 525 F.3d 505,
517 (7th Cir. 2008).
1. Testimony about other drug deals with Haynes
The district court justified its admission of testimony
about other drug transactions between Harris and Haynes
because such testimony was “intricately related” to the
conduct charged in the indictment, see id. at 517; United
States v. Strong, 485 F.3d 985, 989-90 (7th Cir. 2007), and
because the evidence was admissible under Federal Rule
of Evidence 404(b). Harris contends that the district
court improperly admitted the testimony because it was
not intricately related to the charged conduct and because
it was improper propensity evidence. See Fed. R. Evid.
404(b); United States v. Simpson, 479 F.3d 492, 496-97 (7th
Cir. 2007).
Rule 404(b) prevents the admission of evidence of other
crimes, wrongs, or acts to prove that a person acted in
conformity with his prior conduct. Fed. R. Evid. 404(b). In
other words, “Rule 404(b) plainly prohibits the govern-
ment from introducing evidence of prior bad acts to
show that the defendant’s character is consistent with a
propensity to commit the charged crime.” Simpson, 479
F.3d at 497. But evidence may be properly admitted under
Rule 404(b) for a non-propensity purpose, such as to
prove “ ‘motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.’ ”
United States v. Sebolt, 460 F.3d 910, 916 (7th Cir. 2006)
No. 07-2195 13
(quoting Fed. R. Evid. 404(b)). A district court properly
admits evidence of prior acts under Rule 404(b) if:
“(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propen-
sity to commit the crime charged; (2) the evidence
shows that the other act is similar enough and close
enough in time to be relevant to the matter in issue;
(3) the evidence is sufficient to support a jury
finding that the defendant committed the similar
act; and (4) the probative value of the evidence is
not substantially outweighed by the danger of
unfair prejudice.”
United States v. Moore, No. 07-3445, slip op. at 6 (7th Cir.
July 1, 2008) (quoting United States v. Ross, 510 F.3d 702,
713 (7th Cir. 2007)); United States v. Dennis, 497 F.3d 765,
768 (7th Cir. 2007) (quoting Sebolt, 460 F.3d at 916).
Acts that are “intricately related to” (or “inextricably
intertwined with”) a crime charged in the indictment “are
generally admissible . . . and are not subject to the con-
straints of [Rule 404(b)].” Strong, 485 F.3d at 989-90; see
also United States v. James, 464 F.3d 699, 709 (7th Cir.
2006); United States v. Senffner, 280 F.3d 755, 764 (7th Cir.
2002). But we recently noted that the “ ‘inextricably inter-
twined’ formula . . . is unhelpfully vague.” United States
v. Taylor, 522 F.3d 731, 734 (7th Cir. 2008). We explained
that “intent and absence of mistake are express ex-
ceptions to the Rule 404(b) bar; there is no need to
spread the fog of ‘inextricably intertwined’ over them.
Almost all evidence admissible under the ‘inextricably
interwoven’ doctrine is admissible under one of the
specific exceptions in Rule 404(b) . . . .” Id. at 735. After
reviewing the record, we believe that there is “no need
to spread the fog” of the “intricately related” doctrine
in this case because Haynes’s testimony about his other
14 No. 07-2195
drug transactions with Harris was admissible under
Rule 404(b).
Haynes’s testimony related to several non-propensity
issues, including Harris’s intent to distribute the drugs
recovered during the police searches, his knowledge of
the drugs, and the absence of mistake. Evidence that
Harris sold drugs to Haynes was relevant to show that
Harris intended to sell the drugs found during the
police searches, and Harris’s intent was automatically
at issue because the indictment charged him with specific
intent crimes. See Ross, 510 F.3d at 713 (“Because con-
spiracy is a specific intent crime, whether Wilson in-
tended to conspire to rob the post office was automatically
in issue.”); United States v. Puckett, 405 F.3d 589, 596 (7th
Cir. 2005) (“The crime of possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
is a specific intent crime making the defendant’s state
of mind an element of the crime which is to be determined
by the finder of fact.”); see also Moore, No. 07-3445, slip
op. at 6-7. In fact, Harris also placed his intent squarely
at issue by claiming that he possessed the drugs merely
for personal use. The evidence of other transactions
directly rebutted Harris’s asserted defense to the
possession-with-intent-to-distribute charge by showing
that Harris had engaged in drug deals in the past. See
Moore, No. 07-3445, slip op. at 7-8; Taylor, 522 F.3d at 734;
United States v. Jones, 455 F.3d 800, 808 (7th Cir. 2006);
Puckett, 405 F.3d at 596. The testimony from Haynes
also disproved Harris’s contention that the drugs and
the firearms seized during the searches of 1904 Green-
tree Street and 1844 South 14th Street belonged to his
girlfriend and other tenants: the fact that Harris had
engaged in other drug transactions proved that Harris
No. 07-2195 15
had knowledge of the drugs and firearms recovered. See
United States v. Best, 250 F.3d 1084, 1092 (7th Cir. 2001).
The testimony from Haynes was also relevant to rebut
the allegations of mistake that Harris raised by claiming
that he was an innocent bystander and that Haynes
“set him up.” See Moore, No. 07-3445, slip op. at 7-8.
Harris’s counsel argued multiple times that Haynes
provided evidence against Harris in an attempt to
procure lenient treatment after officers discovered crack
cocaine in a baby seat at Haynes’s house. And Harris’s
counsel repeatedly noted that the audio and video re-
cordings presented at trial lacked discussion about
drugs—the recordings revealed a conversation between
Harris and Haynes about basketball shoes, and showed
Harris counting cash. By combining these points,
Harris’s counsel accused Haynes of fabricating evi-
dence against Harris.
The government therefore needed to introduce evi-
dence of the illicit history between Harris and Haynes
in order to elucidate their ongoing business relationship
and rebut Harris’s attempt to downplay his role in the
controlled purchases. See Moore, No. 07-3445, slip op. at 7-
8; Taylor, 522 F.3d at 733 (“The buyers’ previous knowl-
edge about [the defendant] related to the accuracy
(hence absence of mistake) of their testimony concerning
the controlled buys that provided crucial evidence for
the government’s case.”). The evidence of identical prior
transactions related to the accuracy of the testimony
concerning the controlled purchases by explaining how
Haynes’s relationship with Harris developed to the
point that Haynes could easily purchase drugs from
Harris after only a quick phone call. The prior transac-
tions also helped explain why Harris did not answer the
16 No. 07-2195
initial telephone call placed from the DEA office phone
(presumably a number unknown to Harris), but accepted
the call placed from Haynes’s personal cell phone. Simi-
larly, the evidence of prior drug transactions at Harris’s
girlfriend’s house tied Harris “to the house (where those
items were found) and helped explain why he would
possess the items.” Cf. Strong, 485 F.3d at 990 (upholding
admission of evidence under the “intricately related”
doctrine).
The testimony from Haynes also satisfies the other
prongs of our test for review under Rule 404(b). The
testimony was “similar enough and close enough in time”
to the charged conduct—in fact, the transactions were
limited to a two-year period and involved identical
amounts of the same drug as those charged in the indict-
ment. See Ross, 510 F.3d at 713; United States v. Ruiz, 178
F.3d 877, 880-81 (7th Cir. 1999); United States v. Gibson,
170 F.3d 673, 679 (7th Cir. 1999). The evidence was also
sufficient to support a jury finding that Harris engaged
in the prior drug transactions with Haynes: the evidence
of the controlled purchases and the items recovered from
the residences, as well as Powers’s and Brown’s testimo-
nies, corroborated Haynes’s coherent story. See United
States v. Mallett, 496 F.3d 798, 802 (7th Cir. 2007).
And the evidence satisfies the final prong of our
Rule 404(b) admissibility inquiry—the balancing test
incorporated from Federal Rule of Evidence 403. See
Moore, No. 07-3445, slip op. at 6 (quoting Ross, 510 F.3d
at 713). Rule 403 provides that relevant evidence “may
be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of
No. 07-2195 17
cumulative evidence.” Fed. R. Evid. 403. “[A]dmission of
evidence under Rule 403 is entitled to special deference.
‘Only in an extreme case are appellate judges competent
to second-guess the judgment of the person on the spot,
the trial judge.’ ” Wantuch, 525 F.3d at 518 (quoting
Strong, 485 F.3d at 991); see also United States v. Gardner,
211 F.3d 1049, 1055 (7th Cir. 2000). “Evidence is unfairly
prejudicial only if it will induce the jury to decide the
case on an improper basis, commonly an emotional
one, rather than on the evidence presented.” Wantuch,
525 F.3d at 518.
We have already explained that the testimony about
other drug transactions between Harris and Haynes had
a great amount of probative value on the issues of
intent, absence of mistake, and knowledge, especially
in light of Harris’s asserted defenses. See Moore, No.
07-3445, slip op. at 8. Contrary to Harris’s suggestion,
the district court did not allow the government to directly
elicit testimony that Harris and Haynes had engaged
in hundreds of drug transactions—Haynes testified to a
pattern of prior drug transactions that occurred at reg-
ular intervals involving the same amounts of the same
drug charged in the indictment. We do not believe that
the protocol that Haynes described was inherently “emo-
tional or incendiary.” See Strong, 485 F.3d at 991. Still,
the number of other drug transactions was not probative
to explain the charged crime, and the government con-
ceded at oral argument that testimony regarding the
prior drug deals between Harris and Haynes could have
been elicited in a way that prevented Haynes from
stating that he purchased crack cocaine several times per
week and then several times per day over lengthy periods
of time. Standing alone, evidence regarding a vast num-
18 No. 07-2195
ber of similar drug deals might allow a jury to improp-
erly convict a defendant based on his propensity to sell
drugs. See Simpson, 479 F.3d at 499. But in this case,
Haynes’s testimony did not stand alone. The district
court gave numerous and detailed limiting instructions
on the issue. These instructions alleviated any potential
prejudice caused by the testimony. See United States
v. Hearn, No. 07-1613, slip op. at 14 (7th Cir. July 18,
2008); Moore, No. 07-3445, slip op. at 9; Wantuch, 525 F.3d
at 518; Mallett, 496 F.3d at 802. Thus, the district court
did not abuse its discretion by admitting the evidence
of other drug transactions between Harris and Haynes.
2. Testimony about prior drug deals with Powers and Brown
The district court also allowed the government to pre-
sent testimony under Federal Rule of Evidence 404(b)
about Harris’s drug transactions with Powers and Brown.
Harris again argues that the district court abused its
discretion by admitting improper propensity evidence. See
Fed. R. Evid. 404(b); Simpson, 479 F.3d at 497. The govern-
ment counters that the evidence was properly admitted
because it was not introduced to demonstrate Harris’s
propensity to sell drugs, but instead to prove his intent,
knowledge, opportunity, and the absence of mistake. See
Fed. R. Evid. 404(b); Sebolt, 460 F.3d at 916.
As with the other drug transactions between Harris
and Haynes, evidence that Harris sold drugs to Brown
was relevant to prove Harris’s intent, see Moore, No.
07-3445, slip op. at 7-8; Taylor, 522 F.3d at 734; Ross, 510
F.3d at 713, and to prove his knowledge of the drugs
and firearms recovered, see Best, 250 F.3d at 1092. It also
helped establish Harris’s motive to possess the gun. See
No. 07-2195 19
United States v. Caldwell, 423 F.3d 754, 759 (7th Cir. 2005);
United States v. Lloyd, 71 F.3d 1256, 1264 (7th Cir. 1995).
Haynes’s testimony about his conversation with Harris
about prior drug dealing with Brown revealed that
Harris also needed the firearm for protection from
Brown’s family. The testimony from Powers and Brown
was also relevant to rebut the allegations of mistake that
Harris raised by repeatedly challenging the veracity of
Haynes’s testimony, and by frequently citing the fact
that the recordings of the controlled purchases did not
portray drugs changing hands or any discussion of drugs.
See Taylor, 522 F.3d at 733. Powers’s testimony about how
he and Harris negotiated prices during their drug trans-
actions by silently passing a cell phone between them
corroborated and illuminated Haynes’s testimony about
the controlled purchases and was especially probative
to prove absence of mistake. Moreover, as the district
court noted, the evidence that Harris purchased drugs
from Powers was admissible to establish that Harris
had the opportunity to make the controlled sales by
tracing a potential supplier of the drugs sold to Haynes.
The testimony from Powers and Brown was also
“similar enough and close enough in time” to the charged
conduct. Like Haynes, Powers and Brown also testified
about drug deals involving cocaine within two years of
the charged conduct. See Ross, 510 F.3d at 713; Ruiz, 178
F.3d at 880-81. The evidence was also sufficient to sup-
port a jury finding that Harris engaged in the prior drug
transactions with Powers and Brown. See Mallett, 496
F.3d at 802. Finally, the substantial probative value of
the testimony from Powers and Brown on the issues of
intent, absence of mistake, knowledge, motive, and op-
portunity greatly outweighed any potential unfair preju-
dice, especially in light of the district court’s time-frame
20 No. 07-2195
limitation and diligent, unopposed limiting instructions.
See Moore, No. 07-3445, slip op. at 9; Mallett, 496 F.3d
at 802; United States v. Whitlow, 381 F.3d 679, 686 (7th Cir.
2004). The district court did not abuse its discretion by
admitting testimony about Powers’s and Brown’s drug
transactions with Harris.
3. Testimony about Harris’s luxury vehicles
Harris claims that the district court improperly admit-
ted evidence that he drove numerous luxury vehicles
because the evidence was irrelevant and unfairly prej-
udicial. Under Federal Rule of Evidence 401, evidence
is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of
the action more probable or less probable than it would
be without the evidence.” Fed. R. Evid. 401. Evidence
of unexplained wealth, such as the testimony about
Harris’s luxury vehicles, is admissible as relevant cir-
cumstantial evidence of drug trafficking if the unex-
plained wealth was acquired contemporaneously with
the alleged drug trafficking, if the wealth creates an
inference that the defendant was involved in drug traf-
ficking, and if the government presents evidence that
the wealth was not obtained through legitimate means.
United States v. Carrera, 259 F.3d 818, 829 (7th Cir. 2001);
see also United States v. Smith, 308 F.3d 726, 737 (7th Cir.
2002) (“[E]vidence of an unexplained, lavish lifestyle is
probative of the existence of income derived from a
drug conspiracy.”); United States v. Penny, 60 F.3d 1257,
1263 (7th Cir. 1995).
The district court articulated the proper legal standard
in its ruling on Harris’s motion in limine, stating that the
No. 07-2195 21
vehicle evidence would “be relevant to show an unac-
counted for source of income if the Government is able
to introduce other evidence that the defendant lacked a
source of income.” And the government laid its founda-
tion through Harris’s girlfriend, who testified that
Harris was not employed from 2003 through 2006. The
evidence of luxury vehicles had some probative value,
especially considering that these vehicles were not regis-
tered to Harris but to his relatives and acquaintances—
including his six-year-old son. We do not believe the
vehicle evidence was unfairly prejudicial, and the dis-
trict court did not abuse its discretion by allowing the
government to present the evidence. See Wantuch, 525
F.3d at 518.
4. Testimony about the uncharged .22 revolver and 9mm
ammunition
Harris also objects to the district court’s admission of
evidence regarding the .22 revolver and 9mm ammuni-
tion that officers recovered from his girlfriend’s resid-
ence, but for which he was not charged. We can quickly
dispose of this final evidentiary challenge because the
evidence was admissible under Rule 404(b). See Ross,
510 F.3d at 713. The government was entitled to introduce
evidence of the .22 revolver and the 9mm ammunition
to rebut Harris’s defense that the 9mm pistol found at
his house was not his—the ammunition was particularly
probative on this point. See United States v. Tylkowski, 9
F.3d 1255, 1262 (7th Cir. 1993) (“[T]he government was
entitled to introduce the challenged weapons to rebut
Richard’s claim that [he] lacked the requisite knowledge
of the contents of the sealed boxes.”). And as with the
testimony of other drug deals, the .22 revolver and the
22 No. 07-2195
9mm ammunition were also relevant to prove that
Harris intended to distribute the drugs found during the
searches. The evidence was found in the same search as
the drugs and weapons that supported the charges in the
indictment, and the evidence clearly supported a jury
verdict on a felon-in-possession count. We agree with
the district court that the addition of testimony about
the second gun and ammunition did not add unfair
prejudice, and the district court did not abuse its discre-
tion in admitting the evidence. Dennis, 497 F.3d at 768.
B. The government’s closing argument
Harris did not object to the government’s closing argu-
ment at trial, so we review the prosecutor’s comments
for plain error. See United States v. James, 487 F.3d 518,
525 (7th Cir. 2007). Harris claims that the prosecutor’s
comments referring to Harris’s prior dealings with
Haynes, Powers, and Brown, as well as the prosecutor’s
characterization of the evidence, “demonstrate[ ] that the
government used this evidence for different reasons
than originally claimed; there is no mention here of
intent or plan.” We disagree. The prosecutor’s closing
argument fairly commented on the evidence to refute the
closing argument by Harris’s counsel, which repeatedly
claimed that Harris did not have the requisite intent or
knowledge to be convicted on any of the indicted charges.
And the prosecutor explained to the jury that it could
only consider the prior transactions for limited purposes,
as instructed by the district court. The district court did
not clearly err by allowing the prosecutor to comment
on admissible evidence that rebutted the defense’s trial
theories. See id.No. 07-2195 23
C. The propriety of Harris’s sentence after Kimbrough and
Taylor
Finally, we turn to Harris’s sentence. At our request,
Harris submitted a supplemental memorandum on the
viability of his sentence after Kimbrough v. United States,
128 S. Ct. 558 (2007), and United States v. Taylor, 520
F.3d 746 (7th Cir. 2008), in which Harris argued that his
sentence was invalid. The government claims that Harris
waived any argument about the legitimacy of his sen-
tence by failing to raise it in his appellate briefs or at
oral argument. See Valentine v. City of Chicago, 452 F.3d 670,
680 n.1 (7th Cir. 2006); Szczesny v. Ashcroft, 358 F.3d 464,
465 (7th Cir. 2004). Initially objecting to a criminal sen-
tence in a post-argument supplemental memorandum
does seem like a waiver. See Valentine, 452 F.3d at 680 n.1.
Nevertheless, because the issue was raised subsequent
to oral argument at our request, and because this issue
will likely impact future cases, we will address it on the
merits.
In Kimbrough, the Supreme Court held that a district
court may reasonably depart under 18 U.S.C. § 3553(a)
from the 100-to-1 crack cocaine to powder cocaine ratio
prescribed by § 2D1.1 of the United States Sentencing
Guidelines. 128 S. Ct. at 575. In order to address “the
recurring issue of the proper treatment of crack sen-
tencing appeals that were pending when the Supreme
Court decided Kimbrough,” in United States v. Taylor we
outlined a new approach for defendants who had failed to
object to a district court’s pre-Kimbrough sentence under
the guidelines. See 520 F.3d at 746.
Although Harris was convicted for distributing crack
cocaine, this case presents a different issue entirely. Harris
was not sentenced under § 2D1.1 for the amount of crack
24 No. 07-2195
cocaine he distributed, but rather under § 4B1.1 as a
career offender. Section 2D1.1 employs a drug-quantity
table to provide an offense level that is based on the
amount of drugs at issue. In contrast, § 4B1.1 correlates
offense levels and sentencing ranges with the gravity of
the crime by incorporating the statutory maximum sen-
tence for the underlying offense. See U.S.S.G.
§ 4B1.1(B)(1)(A). For example, under § 4B1.1, a defendant
is assigned an offense level of 37 if his crime carries
a statutory maximum sentence of life. See id. Thus,
§ 4B1.1 does not inherently prescribe different punish-
ments for crimes involving crack cocaine than it does for
crimes involving powder cocaine. To the extent that a
sentencing disparity might occur under § 4B1.1 based
upon the type of cocaine involved, it does not result
from the now-advisory drug quantity table, but is the
product of a discrepancy created by statute. See, e.g., 21
U.S.C. § 841(b) (setting the same statutory minima and
maxima for 5 kg of powder cocaine and 50 g of crack
cocaine).
While the sentencing guidelines may be only advisory
for district judges, congressional legislation is not. As
the First Circuit has explained, “the decision in
Kimbrough—though doubtless important in some cases—is
only of academic interest [in a case arising under the
career offender guideline].” United States v. Jimenez, 512
F.3d 1, 9 (1st Cir. 2007); see also United States v. Clay, 524
F.3d 877, 878-79 (8th Cir. 2008) (“Although the recent
amendments to the sentencing guidelines lowered the
offense levels associated with crack in the drug quantity
table in U.S.S.G. § 2D1.1, they did not change the career
offender provision in § 4B1.1 . . . .”); United States v.
Crawford, 520 F.3d 1072, 1075 (9th Cir. 2008). But our
No. 07-2195 25
discussion should not be read to suggest that § 4B1.1 is
any less advisory for a district judge than the other sen-
tencing guidelines. Cf. United States v. Martin, 520 F.3d
87, 96 (1st Cir. 2008) (upholding district court’s decision
to depart from career-offender guideline); United States
v. Sanchez, 517 F.3d 651, 663 (2d Cir. 2008) (“[W]hile the
sentencing statute expressly directs the district court to
‘consider’ the ‘sentencing range established for . . . the
applicable category of defendant as set forth in the guide-
lines’ . . . it does not instruct the court to impose such
a sentence.” (quoting 18 U.S.C. § 3553(a)(4)(A))).
We follow our sister circuits and clarify: a sentence
entered under the career offender guideline, § 4B1.1,
raises no Kimbrough problem because to the extent it
treats crack cocaine differently from powder cocaine, the
disparity arises from a statute, not from the advisory
guidelines. Therefore, the Kimbrough decision in no way
affected Harris’s sentence, so we will affirm the sen-
tence given by the district court. See United States v. White,
519 F.3d 342, 349 (7th Cir. 2008).
III. CONCLUSION
We AFFIRM the judgment of conviction, and the sen-
tence of the district court.
USCA-02-C-0072—8-6-08