NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 7, 2012
Decided August 22, 2012
Before
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐2566
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 3:10‐cr‐30088‐001‐DRH
CORTEZ L. WOOTEN, David R. Herndon,
Defendant‐Appellant. Chief Judge.
O R D E R
Cortez Wooten was sitting in the passenger seat of a car driven by his girlfriend
when a deputy U.S. Marshal recognized him as having an outstanding warrant for his
arrest. After arresting him, officers searched Wooten, his girlfriend, and the car; they found
51.2 grams of crack cocaine, a digital scale, and $159 in small bills. Wooten asserted that he
stole the scale and drugs the night before and that he intended only to smoke the crack. He
was charged with possessing crack with the intent to distribute, 21 U.S.C. § 841(a)(1), and
after a hung jury at his first trial, a second jury found him guilty and returned a special
No. 11‐2566 Page 2
verdict holding him responsible for at least 50 grams of crack. Because of the drug quantity
and Wooten’s prior drug convictions, the district court imposed a mandatory term of life
imprisonment on the understanding that the Fair Sentencing Act of 2010, 124 Stat. 2372, was
not retroactive. On appeal he argues that the FSA is applicable and would have reduced his
sentence, that the evidence presented at trial was insufficient for a rational jury to find him
guilty, and that the district court erred in admitting evidence of his prior conviction for
distributing crack in 1998. We affirm Wooten’s conviction, but in light of Dorsey v. United
States, 132 S. Ct. 2321 (2012), we vacate his sentence and remand for resentencing.
At trial both sides framed the primary issue as whether Wooten intended to
distribute the drugs found in his pocket. The prosecution emphasized that a common‐sense
evaluation of the evidence found on Wooten, his videotaped interrogation, and testimony
from his former cellmate would lead the jury to find him guilty. Wooten’s attorney then set
out the defense’s primary theme at trial: that he was an addict who stole the drugs and
intended only to consume them, and that the government could not adequately prove
otherwise. In their opening statements neither side mentioned Wooten’s prior conviction.
The government called two of the arresting officers, Deputy U.S. Marshal Dave
Davis and police officer Keith Howard, who were working together as part of a task force.
Davis and Howard testified that they were parked in their squad car in East St. Louis when
Davis saw Wooten riding in the passenger seat of a passing car. Davis recognized Wooten
from an investigation that led to Wooten’s prior drug arrest in 1998 and knew that an arrest
warrant was outstanding for Wooten. They followed the car until the driver parked;
Howard then approached the vehicle to make the arrest. As he approached the car, Howard
could see money fanned across Wooten’s lap. While Howard put him in handcuffs, Wooten
said, “I’ve got dope on me.” He did not appear to be under the influence of drugs. Howard
testified that he searched Wooten and found in his pockets the digital scale and the lump of
crack weighing 51.2 grams, along with $159 in small bills on his lap. The officers also
testified that a search of Wooten’s girlfriend and the car revealed no further evidence; they
did not find a crack pipe, lighter, or other drug paraphenalia. There was a bit of uncertainty
about the girlfriend’s purse: Davis testified that it had been searched, though Howard did
not recall seeing a purse.
Howard then took Wooten to the Illinois State Police headquarters in Collinsville,
Illinois, for questioning, where they were joined by Officer Dave Kitley. An audio and video
recording of this interview was introduced at trial. Wooten first asserted that he stole the
drugs and scale from an unlocked car the night before, that he was addicted to crack, and
that he intended to smoke the drugs. When pressed, however, Wooten reluctantly told the
officers that he was unemployed, that he needed money, and that he had been willing to sell
some of the crack. When Officer Kitley said, “You just told me you were trying to get some
No. 11‐2566 Page 3
money for your kids. For her kids right?” Wooten responded, “Okay, bro, I smoke crack, I
try to hustle.” When Officer Howard asked, “Were you going to pinch a little for yourself
and then try and make some money?” Wooten replied, “Bro, I’m gonna take it however it
come. . . . I mean I am gonna smoke some, I’m gonna make some money, however I gotta do
it, bro.” Wooten emphasized this point: “[L]ike I told you, I get high. I ain’t just saying I’m
just gonna go out here and hustle some shit, bro. . . . I’m gonna take care of my habit first,
bro, and if there’s some money to be made, I’m gonna make some, bro.”
DEA special agent Mike Rehg provided expert testimony regarding crack use and
distribution in East St. Louis. Agent Rehg testified that the quantity of crack found on
Wooten could have brought him $1,800 to $5,100 depending on the manner of sale, and that
this quantity is more commonly found on dealers than on addicts: A typical addict might
consume about one gram a day, so 51.2 grams could last an ordinary user several weeks. He
also testified that users typically have drug paraphernalia with them, as crack cannot be
ingested without a pipe and a heat source. Dealers, in contrast, usually have access to a
scale, and because the drug is commonly sold in small doses of .1 or .2 gram costing $10 or
$20, dealers also will carry currency in small bills.
The government also introduced evidence concerning Wooten’s conviction for
distributing crack in 1998. Deputy Marshal Davis testified that he participated in the drug
investigation into Wooten in 1998. Davis did not discuss the details of that investigation,
however, as defense counsel successfully argued that allowing Davis to discuss the
investigation in detail would be cumulative of testimony that the government planned to
elicit later in the trial. Those details came out later when, following a limiting instruction
cautioning the jury that it could consider Wooten’s conviction only as proof of intent or
motive, former police officer Jason Bridges testified that in 1998 he participated in a drug
investigation into Wooten and twice watched him sell about 3 grams of crack to an
informant. The prosecution then introduced a certified copy of Wooten’s conviction. His
former probation officer also testified concerning that past conviction, and said among other
things that Wooten’s supervised release was revoked after he tested positive for marijuana
several times, that he was diagnosed by a drug treatment center as being “dependent” on
marijuana, and that he confided to her that he never used crack. Wooten never objected to
Bridges’s or his probation officer’s testimony, or to the introduction of the conviction record.
Finally, the government presented testimony from Wooten’s former cellmate at the
Fayette County jail, Marzell Travis, who admitted that he was cooperating in order to
receive a reduced sentence. Travis, who did not testify at Wooten’s first trial, explained that
in November 2010 he came forward with information about Wooten because he was
dissatisfied with his sentence. Travis said that, before he approached the authorities,
Wooten had confessed in a jailhouse conversation that he bought the crack the day before
No. 11‐2566 Page 4
his arrest and was on his way to sell it when he was caught. Travis also testified that in jail
he and Wooten had smoked marijuana that Wooten smuggled in through a straw wedged
into a hole in the visitor’s‐room window.
As promised in his opening statement, defense counsel cross‐examined the
government’s witnesses and called three witnesses of his own in trying to paint Wooten as a
crack addict who stole the drugs solely for his own personal consumption. Wooten did not
testify. To impeach Marzell Travis’s testimony, he called the administrator of the Fayette
County jail to testify that it would have been impossible for someone to have smuggled
marijuana into the jail through the visitor’s‐room window and that no one ever had been
caught with marijuana in the jail. Carolyn Lott, the mother of Wooten’s two children,
testified that she and Wooten had smoked crack together several times when they were
dating in the early 1990s, though she had spoken to him only once since 1995. Finally,
Wooten’s sister testified that she knew he smoked marijuana and suspected, but could not
be certain, that he also had started smoking crack.
The jury returned a verdict of guilty and a special verdict finding that Wooten
intended to distribute 50 or more grams of crack. At sentencing in July 2011, the district
court concluded that Wooten’s prior felony drug convictions made him a career offender
under U.S.S.G. § 4B1.1. Accordingly, the court calculated a total offense level of 37 and a
criminal‐history category of VI, which equated to a guidelines imprisonment range of 360
months to life. Over Wooten’s objection, however, the court concluded that the FSA did not
apply because his offense had been committed before that legislation was enacted in August
2010. Accordingly, due to his prior convictions, the court concluded that § 841(b)(1)(A)
mandated life imprisonment.
On appeal, Wooten challenges the sufficiency of the evidence presented by the
government to prove that he intended to distribute crack. In particular, he argues that his
videotaped interrogation fails to establish his intent to distribute, he faults the thoroughness
of the government’s search of the car and its driver, he argues that his former cellmate is not
a credible witness, and he notes that there was conflicting evidence concerning his addiction
to crack.
Wooten’s claim is not persuasive. This court will reverse only if no rational jury
could have found, based on the evidence presented at trial and viewed in the light most
favorable to the government, that Wooten was guilty beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307, 319 (1979); United States v. Walker, 673 F.3d 649, 654 (7th Cir. 2012).
Here, the government needed to prove that Wooten knowingly possessed crack, that he
knew it was a controlled substance, and that he intended to distribute the drug. 21 U.S.C.
§ 841(a)(1); United States v. Lane, 591 F.3d 921, 926 (7th Cir. 2010). As both parties
No. 11‐2566 Page 5
acknowledge, however, the only issue contested at trial was Wooten’s intent to distribute.
Wooten’s sufficiency challenge boils down to attacks on the reasonableness of inferences
drawn by the jury, and to questions concerning the credibility of witnesses—both of which
this court is loath to disturb. See United States v. Stevenson, 680 F.3d 854, 857 (7th Cir. 2012);
United States v. Carraway, 612 F.3d 642, 645 (7th Cir. 2010). Essentially, he asks this court to
reject the common‐sense version of events championed by the government and found by
the jury and instead infer that he is a crack addict who was carrying around more than 50
grams of crack strictly for personal use. Yet a rational jury could have concluded otherwise
from the trial evidence. The government established that Wooten possessed more crack than
a typical user would consume in several weeks, that he was carrying a scale and small bills,
and that the task‐force officers found none of the paraphernalia necessary to consume the
drug. An expert on crack trafficking testified that Wooten’s collection of possessions was
typical of persons distributing crack. The jury heard testimony from his former cellmate,
who testified that Wooten confided in him that he intended to sell the drugs, and the
government introduced evidence that Wooten was previously convicted of selling crack.
The jury also viewed a video recording in which Wooten told police that he was
unemployed, that he needed money, and that “I’m gonna take care of my habit first, bro,
and if there’s some money to be made, I’m gonna make some.” Based on this evidence a
jury could easily find beyond a reasonable doubt that Wooten intended to distribute the
drugs. See, e.g., United States v. Huddleston, 593 F.3d 596, 601–02 (7th Cir. 2010).
Additionally, Wooten argues for the first time on appeal that the district court erred
in admitting evidence of his prior conviction for distributing crack under Federal Rule of
Evidence 404(b). Wooten focuses exclusively on the prejudice stemming from this evidence.
Because Wooten never sought to exclude evidence of his drug conviction under Rule
404(b), there is an initial question concerning whether he waived the point instead of merely
forfeiting it. But regardless whether the failure to object was intentional, the government
argues in its brief only that Wooten has forfeited this challenge, not waived it entirely. Thus
the government has waived its waiver defense, and we will review Wooten’s argument
under the plain‐error standard. See United States v. Burge, 683 F.3d 829, 833 (7th Cir. 2012).
Consequently, to prevail on appeal Wooten must show first that the district court erred, that
the error was plain, and that it affected his substantial rights. United States v. Olano, 507 U.S.
725, 731–35 (1993).
Rule 404(b) allows trial judges to admit evidence of prior crimes for purposes other
than to show propensity, such as “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” FED. R. EVID. 404(b). To
determine if evidence of prior misconduct is admissible, the judge should consider whether
(1) that evidence “is directed toward establishing a matter in issue other than the
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defendant’s propensity to commit the crime charged,” (2) the other act is “similar enough
and close enough in time to be relevant to the matter at issue,” (3) the evidence supports a
jury’s finding that the defendant committed the prior act, and (4) the danger of unfair
prejudice substantially outweighs the probative value of the evidence. FED. R. EVID. 403,
404(b); United States v. Vargas, __ F.3d __, 2012 WL 3240678, at *7 (7th Cir. August 10, 2012);
United States v. Baker, 655 F.3d 677, 681–82 (7th Cir. 2011); United States v. Jones, 455 F.3d 800,
806–07 (7th Cir. 2006).
The district court did not plainly err in admitting evidence of Wooten’s conviction
for distributing crack in 1998. His prior conviction was relevant to the primary question at
his trial—whether he intended to sell or consume the crack in his possession. See, e.g., Baker,
655 F.3d at 682; United States v. Powell, 652 F.3d 702, 706–07 (7th Cir. 2011); United States v.
Boling, 648 F.3d 474, 479 (7th Cir. 2011); United States v. Perkins, 548 F.3d 510, 514–15 (7th Cir.
2008); United States v. Hurn, 496 F.3d 784, 787–88 (7th Cir. 2007); Jones, 455 F.3d at 808.
Wooten contends only that the risk of unfair prejudice substantially outweighs any
probative value of the evidence, and that the jury must have drawn the prohibited “once a
drug dealer, always a drug dealer” inference. See United States v. Miller, 673 F.3d 688, 698‐
700 (7th Cir. 2012). But we are unconvinced that this evidence was so prejudicial as to call
its admission plain error. The district court instructed the jury during the prosecution’s
case‐in‐chief and in the jury instructions that it could only consider Wooten’s prior
conviction for its value in determining Wooten’s intent or motive in possessing the crack.
These limiting instructions minimized any prejudice to Wooten. See United States v.
Chambers, 642 F.3d 588, 595–96 (7th Cir. 2011); Jones, 455 F.3d at 809.
Finally, Wooten argues that the district court erred in concluding that he cannot
benefit from the lower mandatory minimums established by the FSA. He is correct, as the
government conceded at argument. At the time of his sentencing in July 2011, this court had
concluded that the FSA did not apply to preenactment crimes. In Dorsey v. United States,
however, the Supreme Court held that the FSA applies to all persons sentenced after its
enactment by Congress, without regard to when the conduct occurred. 132 S. Ct. 2321, 2335
(2012). Wooten raised this issue in the district court and in his opening brief, and he thus is
entitled to be resentenced. On remand he will face a statutory minimum of 10 years, 21
U.S.C. § 841(b)(1)(B) (2006 & Supp. IV 2011), and still will be subject to a guidelines range of
360 months to life as a career offender, see U.S.S.G. § 4B1.1(b)(1).
For the foregoing reasons, we AFFIRM Wooten’s conviction but VACATE his
sentence and REMAND this case to the district court so that it may apply the lower
mandatory minimum provided by the Fair Sentencing Act.
