United States v. Upton, Tavon A.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1456
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TAVON A. UPTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05-CR-30115—William D. Stiehl, Judge.
____________
ARGUED OCTOBER 26, 2007—DECIDED JANUARY 9, 2008
____________
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge. A confidential informant told
the St. Clair County Sheriff ’s Drug Tactical Unit (“DTU”)
that she could purchase crack cocaine from defendant-
appellant Tavon A. Upton at his home in Cahokia, Illinois.
On July 9 and July 15, 2003, under police supervision,
she did just that. Using the evidence from these con-
trolled buys, Investigator Timothy Bedard applied for
a warrant to search Upton’s home and, on July 16, 2003,
Bedard and members of the DTU executed the warrant.
When he saw the DTU approaching, Upton bolted, discard-
ing two baggies containing cocaine base and cocaine as
he ran. The police soon caught up, arrested him, and
drove him—literally kicking and screaming—to the
2 No. 07-1456
police station, where he confessed to selling drugs out of
his house. The search of Upton’s home—producing an
assortment of drug paraphernalia, digital scales, two
knives, and a .380 caliber handgun—confirmed his con-
fession.
An indictment followed and, on April 26, 2006, convic-
tions for one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) and one count
each for possessing with intent to distribute cocaine
base and cocaine in violation of 21 U.S.C. § 841(a)(1).
The district court then sentenced Upton to 288 months’
imprisonment, a 5-year term of supervised release, a
special assessment, and a fine. Upton now appeals,
challenging the admissibility of his confession, an officer’s
expert testimony given at trial, the jury instructions,
and his enhanced sentence for being a career criminal.
Finding no error, we affirm both his convictions and his
sentence.
I. Background
A. Factual History
In July 2003, a confidential informant learned that
Upton had been selling crack cocaine out of his home
in Cahokia—a city in southwest Illinois on the border
with Missouri—and contacted Officer Timothy Bedard.
Officer Bedard was an officer in the Cahokia Police
Department and the St. Clair County Sheriff ’s Drug
Tactical Unit (“DTU”). On July 9 and again on July 15,
2003, under Bedard’s supervision, the confidential infor-
mant engaged in two controlled buys of crack cocaine out
of Upton’s home. Using the information from these buys,
Bedard obtained a search warrant for Upton’s address
and, the next day, Bedard and several other members of
the DTU executed the warrant. When the DTU pulled up
No. 07-1456 3
to his home, Upton was standing in his driveway. Rightly
guessing that the approaching battalion of police in riot
gear was not a good sign, he took off running. The police
caught him and recovered two plastic bags, containing
what the police later determined to be 4.4 grams of co-
caine and 4.8 grams of cocaine base.
For his part, Upton was not the model arrestee. While
Bedard was initially reading him his Miranda rights,
Upton began yelling that he was not going to return to
prison. During the ensuing frisk, he became more ag-
gressive, refusing to cooperate with the police and pulling
away from and even kicking at the officers. And when
the officers tried to put him in the squad car, he resisted
their efforts—though they eventually succeeded.
Another Cahokia police officer, Phillip Taylor, and his
partner then drove Upton to the police station. On the
way, Upton’s antics only worsened. After only a few blocks,
he began kicking the squad car’s side window and door
with both feet, eventually causing the door and window to
bow out. Taylor stopped the car, opened the door, and
attempted to pacify Upton, but to no avail. Seemingly at
a dead end, Taylor delivered what’s called a “palm strike”
in an effort to get Upton back in the car.1 He was not
aiming for Upton’s nose—he testified that he was trying
to hit Upton’s torso. But when Upton lowered his head
mid-strike, that’s where his palm landed. Though errant,
the move was successful. Upton abandoned his efforts
to leave the car, and Taylor was able to close the door
and continue on. After his booking, Taylor then tended to
a cut on Upton’s nose (the “palm strike” had produced a
small laceration), which stanched the bleeding.
1
A “palm strike” is an open-palmed punch in which the bottom
part of the palm makes contact with the intended recipient. See
generally Strike (attack), WIKIPEDIA, Nov. 20, 2007, http://
en.wikipedia.org/wiki/Strike_(attack).
4 No. 07-1456
A few minutes later, another Cahokia police officer,
Deputy Bill Kenny, transported Upton to the St. Clair
County Jail. On the way, Upton told Deputy Kenny that
he wanted to work as an informant for another Cahokia
police officer whom Upton knew, Detective Kurt Evers-
man. The conversation did not go much further, and
Kenny delivered Upton to the county jail.
While all this was going on, Bedard and the DTU had
been searching Upton’s residence. The fruits of the
search confirmed suspicions that Upton had been dealing
drugs: marijuana recovered from the kitchen and Upton’s
truck; cocaine from a kitchen cabinet; a digital scale
with residue on it; boxes of plastic bags; bottles of prescrip-
tion drugs not prescribed to Upton; a .380 caliber Tanfoglio
firearm and ammunition; a police radio scanner; a large
knuckle-knife with a steel-spiked handguard; and a
switchblade. Bedard inventoried what the DTU had
found and went to the county jail to question Upton.
Bedard, Detective Eversman, and another officer con-
ducted the interview. Bedard first read Upton his Miranda
rights a second time, but Upton refused to sign an ac-
knowledgment form. Still, Upton answered the officers’
questions, repeating his earlier offer to cooperate with the
police in exchange for a lowered sentence. Upton then
proceeded to make several incriminating statements. He
confessed to selling drugs out of his home in order to
support his child. And he also explained that he was
a user; in fact, he had smoked crack just before his
arrest, perhaps explaining his outburst in the squad car.
When confronted with the fact that the police had re-
moved a .380 caliber gun from his home, Upton admitted
that he had handled it, but said that it belonged to a
friend. At trial, the officers would testify that Upton was
composed throughout the interview, and he did not
give any outward indication that he was still in pain
from his cut nose. Despite his apparent cooperation, at
No. 07-1456 5
the end of the interview Upton refused to sign a written
statement memorializing his confession.
Upton never did end up identifying other drug dealers,
and on April 5, 2006, a grand jury returned a five-count
indictment against Upton charging (i) possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1); (ii)
possession of cocaine base with intent to distribute
in violation of 21 U.S.C. § 841(a)(1); (iii) possession of
cocaine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1); (iv) possession of a firearm in relation to
a drug-trafficking offense in violation of 18 U.S.C.
§ 924(c)(1); and (v) forfeiture of the firearm involved in a
drug-trafficking offense pursuant to 18 U.S.C. § 924(d).
B. Procedural History
Prior to his trial, Upton sought to suppress his post-
arrest statements, claiming that his Miranda waiver had
not been voluntary. To shore up his claim, Upton pointed
to his injured nose and his refusal to sign a Miranda
waiver. After briefing and a hearing, the district court
denied Upton’s motion. The court found that Upton had
been “combative and uncooperative” and that he had
received his bloodied nose “as a result of his behavior
during his arrest and transportation to the Cahokia
Police Department,” not due to police overreaching.
Further, Upton’s efforts “to help himself by cooperating,
essentially to stay out of jail” overshadowed any infer-
ence of police overreaching that could be drawn from a
refusal to sign the Miranda waiver.
At trial, the government would prove its case against
Upton through the testimony of the various officers
involved in Upton’s arrest, Upton’s confession, and the
physical evidence seized from his home. Upton objected
to the fact that Officer Eversman would testify as both
6 No. 07-1456
an expert and a lay witness. Eversman had expertise on
the drug trade, such as the use of firearms in drug traf-
ficking, the tools of the trade, and why the amount of
drugs seized from Upton’s home indicated an intent to
distribute. But he would also testify as a lay witness
regarding Upton’s confession, the controlled buys, the
execution of the search warrant, and the particulars of
Upton’s arrest. Upton was concerned that the jury would
not be able to separate the two kinds of testimony and
noted this potential prejudice to the court. To obviate
any prejudice, the government agreed to clearly separate
Everman’s expert and lay testimony. In addition, prior
to his testimony, the court instructed the jury that “Lieu-
tenant Eversman will testify as both a fact witness and an
expert witness,” to put them on guard. Finally, as prom-
ised by the government, the court took a twenty minute
recess between Eversman’s lay testimony and his ex-
pert testimony.
During Eversman’s expert testimony, Upton objected
to several questions posed by the government, claiming
that they blurred the distinction between lay and expert
testimony or were not helpful to the jury. The court
sustained several objections, concluding that they were
not helpful to the jury or that the government had asked
a question going to fact testimony during Eversman’s
expert testimony. For example, the court sustained an
objection to a question asking Eversman about the con-
tents of Upton’s confession during the expert portion of
his testimony. The court also overruled objections to
questions asking Eversman to comment on particular
pieces of evidence. Thus, the government could not ask
whether the location of the gun seized in the search of
Upton’s home was consistent with the location of fire-
arms in other drug-related premises. And, in a sidebar,
the court limited Eversman’s expert testimony regard-
ing the use of knives by drug dealers, permitting the
No. 07-1456 7
testimony in general terms but not allowing the partic-
ular knives to appear during the testimony.
As trial finished up, the parties moved to instructing
the jury. Upton proposed two lesser-included-offense
instructions of simple possession for both distribution
counts. The district court denied Upton’s request, stating
that the evidence did not support simple possession. On
April 26, 2006, the jury returned its verdict, convicting
Upton of being a felon in possession of a firearm and
both distribution counts, but acquitting him of possessing
the firearm in relation to drug trafficking.
On February 21, 2007, the district court sentenced
Upton to 288 months’ imprisonment and five years’
supervised release. The district court determined that
Upton qualified as an Armed Career Criminal under 18
U.S.C. § 924(e). In so doing, the court was satisfied that
Upton’s prior convictions for aggravated battery, posses-
sion of a sawed-off shotgun, and three instances of domes-
tic battery qualified as predicate offenses, and applied
the enhancement. This appeal followed.
II. Discussion
Upton’s appeal focuses on the district court’s pre-trial
and trial rulings as well as the ultimate sentence imposed.
Specifically, Upton challenges the voluntariness of his
Miranda waiver, the admission of Eversman’s expert and
lay testimony, the district court’s denial of the lesser-
included-offense instructions, and his status as an Armed
Career Criminal. The following sections discuss each in
turn.
A. Voluntariness of Miranda Waiver
On appeal, Upton reiterates his claim that his Miranda
waiver had not been knowing and voluntary and that his
8 No. 07-1456
subsequent confession was thus inadmissible. Upton
argues that the series of events surrounding his nose
injury rendered his Miranda waiver involuntary. He
points to the fact that he was cantankerous immediately
after his arrest, but then became docile after the poorly
landed “palm strike” injured his nose. Although Officer
Taylor treated the cut on his nose, Upton did not receive
any additional medical attention. Nor did a significant
period of time pass between the injury and the interview
in which he confessed. Finally, he points to his refusal
to sign either an acknowledgment of his rights or a writ-
ten statement during the interview.
When viewed in context, there is no indication that any
of this affected Upton’s Miranda waiver. This Court
reviews de novo whether a Miranda waiver was volun-
tary and reviews the district court’s findings of historical
facts for clear error. United States v. Smith, 218 F.3d 777,
780 (7th Cir. 2000). A waiver can be either express or
implied, North Carolina v. Butler, 441 U.S. 369, 375-76
(1979), and is involuntary if the will of the defendant “was
overborne in such a way as to render his confession a
product of coercion.” Spano v. New York, 360 U.S. 315,
320-21 (1959). Waiver can never occur through “mere
silence,” as the Miranda warnings themselves indicate.
Butler, 441 U.S. at 373. But a person can act as though
he has waived his rights without expressly saying so. Id.
Upton impliedly waived his Miranda rights before he
confessed. Granted he did not sign an acknowledg-
ment form after Bedard read him his rights a second time.
But he told the officers that he understood his rights, even
requesting an attorney after he had confessed. And he
did freely talk about the allegations against him, admitting
they were true but attempting to strike a deal. United
States v. Smith, 218 F.3d 777, 781 (7th Cir. 2000)
(“[W]aiver may be inferred from the defendant’s con-
No. 07-1456 9
duct, even when she has refused to sign a waiver form.”).
Thus, Upton understood what the officers had told him,
but cooperated nonetheless, waiving his Miranda rights.
In addition, the circumstances surrounding his arrest
and confession satisfy us that, despite the “palm strike,”
Upton’s waiver was voluntary. Although physical force is
certainly a defining circumstance—and possibly a disposi-
tive one, see Miller v. Fenton, 474 U.S. 104, 109 (1985);
Brown v. Mississippi, 297 U.S. 278 (1936)—its incidental
use can sometimes be excused where the other incidents
to the interview show a voluntary waiver. Holland v.
McGinnis, 963 F.2d 1044, 1050 (7th Cir. 1992). The
relevant inquiry is the totality of the circumstances, which
does not lend itself to a neat list of factors. But in refining
the standard, this Court has looked to gaps in time
between the use of force and the waiver, changed inter-
rogators or location, and renewed Miranda warnings. Id.;
see also Wilson v. O’Leary, 895 F.2d 378, 385 (7th Cir.
1990). We have also looked to the defendant’s back-
ground, experience and conduct. United States v. Huerta,
239 F.3d 865, 873 (7th Cir. 2001).
Upton’s injury resulted in large measure from his
own misconduct, not police efforts to coerce him into
waiving his rights. See Colorado v. Connelly, 479 U.S. 157,
170 (1986) (“Miranda protects defendants against gov-
ernment coercion leading them to surrender rights pro-
tected by the Fifth Amendment; it goes no further than
that.”). From the moment the police caught him, Upton
was a pill. He was physical with the arresting officers
when apprehended, refusing to get back in the car after
the police frisked him and first read him his Miranda
rights. When the police did succeed in getting him in the
car, he began violently kicking the inside, eventually
bowing out the side window and door. Officer Taylor’s
efforts to placate him were only met with more kicks. It
10 No. 07-1456
is understandable that in this context a police officer
would have to resort to some proportionate measure of
force to protect himself or subdue a suspect. This Court
examines the effect of coercion from the perspective of a
“reasonable person in the position of the suspect.” United
States v. Brooks, 125 F.3d 484, 492 (7th Cir. 1997). And a
reasonable person acting as Upton was would not inter-
pret the “palm strike” as the opening salvo in an effort to
overbear his will. The resulting injury to Upton’s nose
is certainly unfortunate, but it did not result from police
overreaching.
In addition, there was a clear break in the chain of
events between the injury and the interview. Holland, 963
F.3d at 1050. After his injury, Taylor took Upton to the
police station, treated his nose, and processed his arrest.
And after that, Officer Kenny drove him to the county
jail where the interview occurred sometime later, con-
ducted by different police officers. The “palm strike” was
just not an aspect of the interrogation in any meaningful
sense. It occurred at a different time, involved different
police officers, and was limited to responding to the defen-
dant’s outburst. Id. (noting relevant factors such as “the
time that passed between confessions, the change in the
place of interrogations, and the change in identity of the
interrogators”). Granted Upton still bore the laceration
from the injury during the interview. But he never re-
quested further medical attention to treat his nose. And,
according to the officers, he had all his wits about him
throughout the interview. Importantly, before he con-
fessed, Upton received a second Miranda warning, appris-
ing him again of his right to be left alone if he wanted. Id.
The effect and circumstances of the injury were simply
too far removed to have affected the voluntariness of
his waiver.
Finally, Upton’s efforts to secure a better deal for himself
show that he had a calculating and not a cowed mind at
No. 07-1456 11
the time of his confession. When traveling with Officer
Kenny to the county jail, Upton first raised the prospect of
cooperating to lessen his criminal exposure. Again during
the interview, Upton raised the possibility of cooperating
with Bedard and Eversman. As the district court found, his
efforts to secure a deal coupled with his refusals to sign a
written confession or an acknowledgment of his rights are
telling. See Smith, 218 F.3d at 781 (“Smith’s refusal to
[sign a waiver form] shows her independent thinking and
exercise of her free will. Her claim thus fails.”). Upton’s
motivation was to stay out of prison, and he took actions
calculated to achieve that goal. We thus affirm the district
court’s denial of Upton’s motion to suppress.
B. Officer Eversman’s Testimony
Upton also argues that several questions posed to Officer
Eversman failed to properly distinguish between his
roles as an expert and lay witness. Upton concedes that
the district court offered a cautionary instruction prior to
Eversman’s testimony and that his attorney probed the
distinction between lay and expert testimony in cross-
examination. But Upton argues that several government
questions failed to highlight the exact capacity in which
Eversman was testifying. For example, he points to
questions posed to Eversman-the-expert concerning what
Upton said after his arrest, a factual issue. The district
court also restricted questions regarding whether the
location of the gun in Upton’s home was consistent
with what Eversman had seen in other drug premises.
Several other questions simply went beyond Eversman’s
capacity as an expert. Although the court sustained several
of his objections, Upton claims these questions polluted the
trial and require reversal.
Whatever potential prejudice may arise from dual ex-
pert and fact testimony, none occurred here. This Court
12 No. 07-1456
reviews a district court’s decision to admit expert testi-
mony for an abuse of discretion. United States v. de Soto,
885 F.2d 354, 359 (7th Cir. 1989). Police officers frequently
testify as expert witnesses on drug trafficking, see, e.g.,
de Soto, 885 F.2d at 359-60; United States v. Gonzales,
933 F.2d 417, 428 (7th Cir. 1991); United States v. Foster,
939 F.2d 445, 451-52 (7th Cir. 1990), and it is “still a
reasonable assumption that jurors are not well versed in
the behavior of drug dealers.” Foster, 939 F.2d at 452.
Thus, expert testimony is helpful in explaining to jurors
why otherwise innocent behavior may be evidence of drug
dealing. See de Soto, 885 F.2d at 360. Or how particular
drug markets function. See United States v. Brown, 7 F.3d
648, 652 (7th Cir. 1993). Or the meaning of code words
used to consummate sales. See United States v. Hughes,
970 F.2d 227, 236 (7th Cir. 1992).
But it is precisely because an expert provides much of
the structure for the jury’s understanding of the drug trade
that courts must be mindful when the same wit-
ness provides both lay and expert testimony. The jury
may unduly credit the witness’s fact testimony given his
status as an expert. Brown, 7 F.3d at 655. Experts fa-
mously possess an “aura of special reliability” surrounding
their testimony. Id. And it is possible that the glow from
this halo may extend to an expert witness’s fact testi-
mony as well, swaying the jury by virtue of his perceived
expertise rather than the logical force of his testimony.
United States v. Doe, 149 F.3d 634, 637 (7th Cir. 1998)
(“This dual role may confuse the jury, which may not
understand its own function in evaluating evidence.”).
Alternately, the jury may unduly credit the opinion
testimony of an investigating officer based on a percep-
tion that the expert was privy to facts about the defendant
not presented at trial. See United States v. Brown, 776
F.2d 397, 401 (2d Cir. 1985) (noting “risk [that] arises
because the jury may infer that the agent’s opinion
No. 07-1456 13
about the criminal nature of the defendant’s activity is
based on knowledge of the defendant beyond the evidence
at trial”). Or the mixture of fact and expert testimony
could, under some circumstances, come close to an expert
commenting on the ultimate issue in a criminal matter.
See FED. R. EVID. 704(b); Brown, 7 F.3d at 651, 653-54;
United States v. Boissoneault, 926 F.2d 230, 233 (2d Cir.
1991).
But none of these forms of possible prejudice arose
in Upton’s case. Before Eversman’s testimony, the dis-
trict court gave a cautionary instruction explaining that
Eversman would be serving both functions as a witness.
de Soto, 885 F.2d at 361-62. Although it is a better
route not to use an investigating officer as an expert
witness in the first place, the government was careful to
distinguish Eversman-the-expert from Eversman-the-lay-
witness. There was a twenty-minute break between the
two types of testimony. And although Upton points to
several questions that were beyond Eversman’s capacity
as an expert, there is no indication that the government
impermissibly mixed factual and expert testimony or
that the government’s mixed questioning was pervasive.
In short, the sharp distinction between fact and expert
testimony and the district court’s cautionary instruc-
tion eliminated any risk of prejudice to the defendant.
The district court was “well aware of its special responsi-
bilities and proceeded with the utmost caution,” de Soto,
885 F.2d at 362, and thus did not abuse its discretion
in admitting Eversman’s testimony.
C. Denied Lesser-Included-Offense Instructions
Upton also argues on appeal that the district court erred
in denying his request for lesser-included-offense instruc-
tions of simple possession. The amount of drugs actually
seized following his arrest—4.4 grams of cocaine and 4.8
14 No. 07-1456
grams of crack—were not so large as to compel a finding of
intent to distribute. The two sales to the confidential
informant also involved only a small amount of crack. And
Upton was a user, or so he admitted to the police follow-
ing his arrest. This evidence, he argues, is consistent with
a finding that he was a simple drug user who had no
intention to distribute, justifying a simple possession
instruction. We disagree.
This Court’s review of a district court’s denial of a lesser-
included-offense instruction has both a legal and a factual
component. The defendant must first establish that the
requested instruction is for an offense necessarily in-
cluded in the one charged. United States v. McCullough,
348 F.3d 620, 624 (7th Cir. 2003); United States v. Boyles,
57 F.3d 535, 544 (7th Cir. 1995) (holding that “necessary”
means that the “elements of the lesser offense are a sub-
set of the elements of the charged offense”). Then the
defendant must show that a rational jury could have
convicted him of the lesser offense, but not the greater. Id.
The district court’s answer to the first question is a legal
one, which this Court reviews de novo; the answer to the
second is based on the district court’s estimate of the
government’s evidence, which we review for an abuse of
discretion. McCullough, 348 F.3d at 624.
The district court properly denied both of Upton’s
requests for simple possession instructions. In the first
place, simple possession of cocaine base is not a lesser-
included offense for possessing a controlled substance
with an intent to distribute. United States v. Steward, 252
F.3d 908, 909 (7th Cir. 2001); United States v. Hill, 196
F.3d 806, 808 (7th Cir. 1999). The government charged
Upton with possessing a controlled substance (namely
cocaine base) with intent to distribute under 21 U.S.C.
§ 841(a)(1), and Upton argued below for a simple posses-
sion instruction based on 21 U.S.C. § 844(a). As a general
matter, the first sentence of § 844(a)—making it “unlawful
No. 07-1456 15
for any person knowingly or intentionally to possess a
controlled substance”—does constitute a lesser-included
offense for the crime of possession with intent to distrib-
ute under section 841(a)(1). Hill, 196 F.3d at 808. But
simple possession of cocaine base falls within the third
sentence of section 844(a), and this section requires the
proof of an element—that the drug was crack—that sec-
tion 841(a)(1) does not. Id. (“The requirement of that
separate crime that the controlled substance be crack is
not an element of the greater offense of possession with
intent to distribute . . . a controlled substance.”); Steward,
252 F.3d at 909 (“We have held that the third sentence
creates a separate crime of possession of crack, which is
not a lesser included offense of possession with intent
to distribute a controlled substance.”). Thus, Upton was
not entitled to a simple possession instruction for the
crack charge because it is not a lesser-included offense of
possession with intent to distribute a controlled substance.
Nor was Upton entitled to a simple possession instruc-
tion for the cocaine count, albeit for a different reason.
Unlike cocaine base, the simple possession of cocaine is
a lesser-included offense to the possession of cocaine
with intent to distribute. See United States v. Puckett,
405 F.3d 589, 600 (7th Cir. 2005). But the government
put forth enough evidence so that no rational jury could
have found him guilty of simple possession and not
possession with intent to distribute. It is true, as Upton
argues, that the amount of cocaine seized after his
arrest was relatively small. But see United States v.
Hernandez, 330 F.3d 964, 972 (7th Cir. 2003) (adopting
Fourth Circuit’s view that the “fact that a defendant
possessed a small amount of cocaine ‘is simply insuf-
ficient alone to require the lesser-included offense instruc-
tion.’ ” (quoting United States v. Wright, 131 F.3d 1111,
1112 (4th Cir. 1997))). And Eversman did testify at trial
that Upton admitted to being a drug user. But in light of
16 No. 07-1456
the remaining evidence, it is simply not plausible that
Upton possessed the cocaine solely for his personal use.
United States v. Chrismon, 965 F.2d 1465, 1477 (7th Cir.
1992) (“[A] verdict on the lesser offense must be plausible
as well as rational.”). Most notably, he confessed to selling
drugs from his house. In addition, there were two con-
trolled buys involving small quantities of crack, one for 0.4
gram and another for 0.1 gram. Although this was crack,
and not cocaine, the sales provide sufficient proof that
Upton was not a simple user. And the smaller quantities
indicate that Upton’s sales involved modest amounts of
drugs, cutting against the inference that the amount of
cocaine was too small to profitably redistribute.
Further, the items seized from his home indicate Upton
had set up a drug retail operation: marijuana, blue pills
hidden in a cigarette box, another baggy of cocaine next
to a digital scale for weighing out small drug quantities,
white residue on the digital scale, small baggies used for
distributing product to customers, a police scanner to
guard against approaching law enforcement, weapons
for self-help, prescription drugs that were not prescribed
to him, and the list goes on. Expert testimony established
that these were indicia of drug distribution. And a jury
would have to blink all of this damaging evidence to
conclude that Upton was just a user who blundered upon
a police sting. Because a rational jury could not do so, the
district court did not err in denying the lesser-included
offense instructions.
D. Sentencing Enhancement
Finally, Upton argues that the district court erred in
determining that Upton’s prior convictions for possessing
a sawed-off shotgun and domestic battery were “violent
No. 07-1456 17
felon[ies]” for purposes of the Armed Career Criminal Act.1
The Armed Career Criminal Act requires a minimum
sentence of fifteen years for a defendant who has “three
previous convictions by any court . . . for a violent felony
or a serious drug offense.” 18 U.S.C. § 924(e)(1) (2006). A
“violent felony” consists of “any crime punishable by
imprisonment for a term exceeding one year” that
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another;
18 U.S.C. § 924(e)(2)(B). The government offered the
information or indictment for each of his convictions at
sentencing. And the district court determined that they
qualified as “violent felon[ies],” a decision we review
de novo. United States v. Golden, 435 F.3d 612, 613 (7th
Cir. 2006).
On appeal, Upton challenges the district court’s conclu-
sions with respect to two of the three prior convic-
1
Upton also argues that the government should have in-
cluded his prior convictions in the indictment and proven them
to a jury beyond a reasonable doubt. As Upton recognizes,
Supreme Court precedent forecloses this argument, see United
States v. Almendarez-Torres, 523 U.S. 224 (1998), although
doubts of its continued validity have been raised. See Shepard v.
United States, 544 U.S. 13, 28 (2005) (Thomas, J. concurring)
(reasoning that “a majority of the Court now recognizes that
Almendarez-Torres was wrongly decided”); see also United
States v. Hendrix, ___ F.3d ___, 2007 WL 4225274, *10 (7th Cir.
2007) (“Almendarez-Torres remains intact, notwithstanding
subsequent decisions.”). Regardless, we note the argument
here in the event the law ever changes in Upton’s favor.
18 No. 07-1456
tions.2 First, he argues that the government did not
prove that his Illinois conviction for unlawful possession of
a sawed-off shotgun qualifies because the mere possession
of a sawed-off shotgun does not pose a risk of serious
physical injury. Illinois law provides that “[a] person
commits the offense of unlawful use of weapons when he
knowingly . . . possesses . . . a shotgun having one or more
barrels less than 18 inches in length or any weapon made
from a . . . shotgun . . . if such a weapon as modified has an
overall length of less than 26 inches.” 720 ILCS 5/24-
1(a)(7)(ii) (2007). Illinois law punishes the crime as a
Class 3 felony, calling for between two and five years’
imprisonment (and meeting the federal definition of a
felony). 730 ILCS 5/5-8-1(6) (2007).
This Court has already held that the possession of a
sawed-off shotgun constitutes a crime of violence for
purposes of enhanced punishment under the Sentencing
Guidelines, see United States v. Brazeau, 237 F.3d 842, 844
(7th Cir. 2001), and the same conclusion obtains under the
Armed Career Criminal Act. See United States v. Rosas,
410 F.3d 332, 335-36 (7th Cir. 2005). The relevant lan-
guage in the Guidelines and the Act are identical: Both
enhancements apply when an offense involves the “serious
potential risk of physical injury to another.” Compare
U.S.S.G. § 4B1.2(a)(2) with 18 U.S.C. § 924(e)(2)(B)(ii).
Because the text is identical, this Court’s determination
in Brazeau—that a sawed-off shotgun presents the “serious
potential risk of physical injury” under the Guidelines—
forecloses Upton’s argument. Rosas, 410 F.3d at 336. Nor
can one deny that a sawed-off shotgun poses such a
risk. People do not shorten their shotguns to hunt or
shoot skeet. Instead, the shortened barrel makes the
2
Upton has not questioned that aggravated battery is a “violent
felony.”
No. 07-1456 19
guns easier to conceal and increases the spread of
the shot when firing at close range—facts that spurred
Congress to require the registration of all sawed-off
shotguns, along with other dangerous weapons like
bazookas, mortars, pipe bombs, and machine guns.
Brazeau, 237 F.3d at 845. Accordingly, the district court
did not err in concluding that Upton’s conviction consti-
tuted a “violent felony.”
Upton also argues that his convictions for domestic
battery do not qualify. Under Illinois law, a “person
commits domestic battery if he intentionally or knowingly
without legal justification by any means . . . [c]auses bodily
harm to any family or household member.” 720 ILCS 5/12-
3.2(a)(1). An offender’s first domestic-battery conviction
is a misdemeanor. But “if the defendant has any prior
conviction . . . for domestic battery,” it becomes a Class 4
felony, punishable by between one and three years’
imprisonment. 720 ILCS 5/12-3.2(b); see also 730 ILCS 5/5-
8-1. Upton has an unfortunate number of convictions
for domestic battery (though one is too many), and he
spent time in prison for three of them.
These convictions clearly qualify under the Act. In
light of his recidivism, Upton’s convictions were Class 4
felonies, which allow for one to three years’ imprisonment.
730 ILCS 5/5-8-1(7). For all three convictions, Illinois
charged Upton with committing domestic battery under
720 ILCS 5/12-3.2(a)(1). This provision of the statute
unambiguously requires proving “physical force”: to sus-
tain his conviction for domestic battery, the state had to
prove that he “[c]ause[d] bodily harm,” which means
that it had as an element “the use . . . of physical force
against the person of another.” See United States v.
Townsend, 419 F.3d 663, 664 (7th Cir. 2005) (“When there
is no ambiguity in the charging documents or in the
statutory definition of the crime, it is not necessary to
undertake a factual review.”). Thus, the district court did
20 No. 07-1456
not err in concluding that Upton’s domestic-battery
convictions were “violent felon[ies].”
III. Conclusion
In light of the forgoing, we AFFIRM Upton’s convictions
and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-9-08