United States v. Kelly, Vernell

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1808
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VERNELL KELLY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 05 CR 269—Elaine E. Bucklo, Judge.
____________
ARGUED APRIL 2, 2007—DECIDED MARCH 10, 2008
____________
Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted of Vernell Kelly
of knowingly possessing a firearm following a felony
conviction, in violation of 18 U.S.C. § 922(g)(1), and know-
ingly and intentionally possessing, with the intent to
distribute, crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). The district court ordered him to serve a
prison term of 235 months. Kelly appeals, contending
that the evidence was insufficient to establish his posses-
sion of both the firearm and the cocaine underlying one
of the two narcotics charges against him, that the evid-
ence did not adequately establish that the cocaine attrib-
2 No. 06-1808
uted to him took the form of crack cocaine, and that the
district court improperly characterized him as a career
offender for sentencing purposes. We affirm.
I.
A tip brought Chicago police officers to the corner of
Homan and Carroll Streets on Chicago’s west side, where
the officers were told defendant-appellant Kelly was
distributing crack cocaine. Shortly before midnight on
the night of June 16, 2004, undercover officer Patrick
Thelen observed what appeared to be a drug transaction.
Kelly pulled up to the scene in a van and exited the
vehicle. Another man approached Kelly, conversed with
him briefly, and then handed him money. Kelly then
removed a golf-ball sized object from a plastic bag in the
back of his pants, handed the object to the other man,
and put the plastic bag back into his pants. The other
man walked away. Thelen radioed his fellow officers,
who were parked a short distance away, to move in on
Kelly. As Thelen himself began to approach Kelly, he
saw Kelly remove the plastic bag from his pants and
drop it to the ground. Officer Mireya Lipsey retrieved the
bag and discovered that it contained another golf ball-
sized object, which turned out to be twenty small packets
each containing a white, chunk-like substance that she
suspected was crack cocaine. The twenty bags had blue
stars on them. Kelly was placed under arrest and advised
of his rights. A search of his van produced no additional
contraband.
A set of keys for a basement apartment at 3309 West
Warren in Chicago was discovered on Kelly’s person.
According to the police, Kelly identified 3309 West
No. 06-1808 3
Warren as his address. The police proceeded to that
apartment to continue their investigation.
Shortly after midnight, the arresting officers called at
3309 West Warren. Betsy Washington answered the door
to the basement apartment. Washington is the mother of
Kelly’s daughter. Washington and their daughter resided
in the apartment along with Zippora Collins and her
daughter. The police solicited and received Washington’s
written consent to search the apartment.
The apartment contained three bedrooms. Collins
would later testify that she and her daughter occupied
two of the bedrooms and that Washington and her daugh-
ter occupied the third. According to Collins, she saw
Kelly at the apartment three to four times per week in
June of 2004. She would only see Kelly in the mornings,
because Collins typically arrived home at a late hour
when everyone else in the apartment was asleep.
In the bedroom occupied by Washington and her daugh-
ter, Thelen discovered a .45-caliber semiautomatic
Ruger firearm loaded with hollow-point ammunition. In
the same room, Lipsey discovered three pieces of mail
addressed to Kelly at the Warren Street address. Among
them was a letter to Kelly from the Social Security Admin-
istration dated June 10, 2004—six days prior to Kelly’s
arrest.
In addition to the gun, the officers also retrieved cocaine
from the apartment. In a utility closet, Officer Brian Spain
discovered a large plastic bag containing nine smaller
plastic bags, each of which in turn contained thirteen mini
Ziploc bags, for a total of 117 bags. Each of the mini
Ziploc bags contained a white, rock-like substance that
appeared to be crack cocaine. Each of the mini bags was
4 No. 06-1808
also marked with blue stars like those found on the bags
that Kelly had dropped at Homan and Carroll.
Spain would later testify that mini Ziploc bags are
commonly used by narcotics traffickers on Chicago’s
west side. He also indicated that he had seen a number
of such bags with various types of markings (for ex-
ample, blue devils and red boats) on them. However,
he had never before seen bags marked with blue stars.
Their search of the Warren Street apartment complete,
officers returned to the police station to question Kelly.
Kelly was again advised of Miranda rights. When shown
the gun and the cocaine that had been discovered in the
apartment, Kelly remarked that “my baby’s mama don’t
know nothing about my gun and the rocks,” or words
to that effect—although Thelen was certain that he used
the term “rocks.” R. 85-7 at 135-36, 213. Kelly indicated
that he had obtained the gun from a friend and that he
kept it for his protection.
A grand jury subsequently returned a three-count
indictment against Kelly. Count One charged Kelly
with knowingly possessing a firearm in or affecting
interstate commerce following a conviction for a felony. See
18 U.S.C. § 922(g)(1). Counts Two and Three charged
Kelly with possessing more than five grams of a sub-
stance containing cocaine base in violation of 21 U.S.C.
841(a)(1). Count Two involved the cocaine recovered at
the scene of Kelly’s arrest at Homan and Carroll Streets.
Count Three involved the cocaine recovered from the
Warren Street apartment.
Prior to trial, Kelly moved unsuccessfully to suppress
all of the physical evidence obtained from both the scene
of the arrest and the apartment at 3309 West Warren. Kelly
No. 06-1808 5
argued that his detention and seizure at the arrest scene
was contrary to the Fourth Amendment. He testified,
contrary to the arresting officers, that he had not engaged
in any drug transaction and had not dropped a plastic
bag to the ground before he was detained. Instead, Kelly
asserted that as he parked his van and got out to patronize
a nearby liquor store, the officers stopped him, ordered
him onto the ground, handcuffed him, and searched him
and then the van. Although Kelly did agree that he had
cocaine in his possession—specifically, a “20-pack” of
cocaine—he testified that it was in the van rather than
in the plastic bag that officers testified he had dropped
to the ground. Because the officers lacked a basis on
which to stop him and engage in the search, Kelly argued,
the cocaine seized from his van along with the gun and
cocaine found at the 3309 West Warren apartment all
should be suppressed pursuant to the exclusionary rule.
See Wong Sun v. United States, 371 U.S. 471, 484-85, 487-88,
83 S. Ct. 407, 416, 417 (1963). The district court denied
Kelly’s motion, observing that the merits of the motion
depended on whose version of events the court was to
credit (Kelly’s or that of the two officers who testified), and
the court found the government’s evidence to be more
credible. R. 27.
As noted, Counts Two and Three of the indictment
charged Kelly with possessing, with the intent to distribute,
more than five grams of a mixture containing cocaine
base in the form of crack cocaine. R. 5 at 2, 3. Although
the quantity and particular type of controlled substance
are not elements of the crime prohibited by 21 U.S.C. § 841,
e.g., United States v. Martinez, 301 F.3d 860, 865 (7th Cir.
2002), they do have an important effect on the statutory
range of punishment to which the defendant is exposed.
6 No. 06-1808
Possessing with the intent to distribute a detectable amount
of any schedule II controlled substance is punishable by
a prison term of 0 to 20 years, § 841(b)(1)(C), whereas
possessing more than five grams of a mixture or substance
containing cocaine base in the form of crack cocaine
exposes the defendant to 5 to 40 years in prison,
§ 841(b)(1)(B)(iii). The two most common types of cocaine
found in the United States are cocaine hydrochloride,
which typically takes the form of a white powder and is
water soluble, and crack cocaine, a form of cocaine base
that typically takes a chunky, rock-like form and is not
water soluble. Cocaine hydrochloride can be converted
to cocaine base by dissolving it in water, bringing it to a
boil, and then adding a base—usually sodium bicarbonate.
Sodium bicarbonate reacts with the hydrochloride to form
table salt, freeing the cocaine base, which eventually
settles to bottom of the liquid. When the liquid is poured
off, what is left is cocaine base in a solid form typically
referred to as “crack.” See R. 85-8 at 282-84; United States v.
Edwards, 397 F.3d 570, 574 (7th Cir. 2005); United States v.
Booker, 70 F.3d 488, 490-91 (7th Cir. 1995). Cocaine base
can take other forms, so although all crack is cocaine base,
not all cocaine base is crack. Edwards, 397 F.3d at 571.
DEA forensic chemist Anthony Harris testified at
Kelly’s trial that the substances found at both the scene of
Kelly’s arrest, at Homan and Carrol Streets, and at the
apartment at 3309 West Warren chemically were cocaine
base. Exhibit 5, the cocaine retrieved from the scene of
Kelly’s arrest, had a purity of 90 percent. Exhibit 6, the
cocaine found at 3309 West Warren, had a purity of 81
percent. No sodium bicarbonate was found in either
exhibit, but Harris testified it was possible that the bicar-
bonate had been removed in the process of pouring off
No. 06-1808 7
the liquid; it was also possible that another base had been
used to convert the powder cocaine into crack.
FBI Special Agent Michael Culloton, who worked as
part of a task force investigating drugs and street gangs,
and whom the court recognized as an expert in the iden-
tification and packaging of crack cocaine, opined that
Exhibit 6, the cocaine recovered from the Warren Street
apartment, was crack cocaine. He noted that it was off-
white in color, had a rock-like appearance and texture,
and was packaged in small quantities in small Ziploc
bags consistent with the way in which crack cocaine is
typically sold on the street. The blue stars on the bags
were consistent with the sorts of markings that cocaine
dealers use to differentiate their products. Also, accord-
ing to a police report, Kelly had referred to the substance
retrieved from 3309 West Warren as “rock” and that is
a street term used to refer to crack cocaine.
Exhibit 5, the cocaine recovered from the scene of
Kelly’s arrest, had been entirely ground up for testing
without first being photographed, so Culloton could not
testify based on observation of the remainder whether
the cocaine was, in fact, crack cocaine. Culloton did
testify that if the substance had the same physical charac-
teristics as Exhibit 6, he would conclude it was crack
cocaine. One reason factoring into his opinion was that the
mini Ziploc bags in which the cocaine recovered from the
arrest scene had been packaged were consistent with 20
individual user-sized quantities of crack cocaine for sale.
Kelly took the witness stand in his own defense. Kelly
acknowledged that he was a regular user of narcotics, and
he admitted that he was in possession of a twenty-pack of
cocaine on the evening of his arrest, but he denied that
he was distributing cocaine. Consistent with the account
8 No. 06-1808
he gave at the pre-trial suppression hearing, Kelly testi-
fied that on the night of June 16, 2004, he had just arrived
at the intersection of Homan and Carroll Streets and was
alighting from his minivan in order to enter a nearby
grocery and liquor store. Suddenly, police cars pulled up,
he was ordered onto the ground, handcuffed, and placed
in a squad car. Kelly denied that he had conducted any
type of narcotics transaction before the police officers
seized him. The twenty-pack of cocaine was found in
the van, he insisted; only his keys and his wallet were
on his person at the time of the arrest. Kelly also denied
that the gun and the cocaine found at the Warren Street
apartment were his, and he denied ever telling the police
that they were his. Although Kelly acknowledged that he
visited the Warren Street apartment daily in order to pick
up his daughter and take her to a babysitter, and also
that he had plans to meet Washington there later that
same evening, he denied that he lived or slept at that
apartment. He indicated that he had his own residence
elsewhere. He explained that he had his Social Security
disability check sent to the Warren Street apartment
because he provided child support to Washington from
that check and previously one of his checks had been
stolen. The two other pieces of mail addressed to Kelly
that had been found at the apartment were bills for a
cellular telephone, and he indicated that the bill was
sent to the Warren Street address because the phone was
one that Washington used and for which she paid.
The jury found Kelly guilty on all three counts of the
indictment. R. 40. As to the narcotics charges set forth
in Counts Two and Three, the jury returned a special
verdict form indicating that the substance Kelly had
possessed in each instance amounted to at least five but
No. 06-1808 9
less than 50 grams of cocaine base in the form of crack
cocaine. R. 41.
Kelly subsequently moved for a judgment of acquittal
or, in the alternative, a new trial. He asserted that the
government had failed to prove that he possessed the
cocaine and gun found at the Warren Street apartment. He
also argued that the government had not adequately
shown that the cocaine found at either the apartment or
at the scene of his arrest was crack cocaine as opposed
to some other form of cocaine base. The district court
denied his motions without comment. R. 45.
In advance of sentencing, the probation officer prepared
a Pre-Sentence Report (“PSR”) which, among other
things, categorized Kelly as a career offender. See
U.S.S.G. § 4B1.1. The probation officer’s finding in that
regard was based on two prior felony convictions, both
for the possession of a controlled substance with the
intent to deliver. Although Kelly objected to other aspects
of the PSR, he raised no objection to the determination
that his prior convictions rendered him a career offender.
R. 52. The career offender designation turned out to
have made no difference in Kelly’s offense level, but it did
raise his criminal history category from IV to VI, and
boosted the advisory Guidelines sentence on the narcotics
counts from a range of 210 to 262 months to 262 to 327
months.
The district court ordered Kelly to serve a sentence of
120 months (the statutory maximum) on Count One (the
firearm charge), and concurrent terms of 235 months on
Counts Two and Three. Kelly’s total sentence of 235
months was thus 27 months below the bottom end of the
advisory Guidelines range.
10 No. 06-1808
II.
A.
Kelly first challenges the sufficiency of the evidence to
support the notion that he possessed the firearm and
cocaine found at 3309 West Warren.1 As Kelly acknowl-
edges, possession can be constructive rather than actual.
E.g., United States v. Bustamante, 493 F.3d 879, 889 (7th Cir.
2007), cert. denied, 2008 WL 261128 (U.S. Feb. 25, 2008).
Constructive possession exists when, although the object
is not in the defendant’s actual possession, he knowingly
has the power and intention at a given time to exercise
dominion and control over the object. Id. Of course,
possession can be shown through circumstantial as well
as direct evidence. United States v. Gilbert, 391 F.3d 882,
886 (7th Cir. 2004). We previously have sustained convic-
tions for the possession of contraband found in a defen-
dant’s home, Bustamante, 493 F.3d at 889, or at his girl-
friend’s home, United States v. Wilson, 922 F.2d 1336, 1339
(7th Cir. 1991).
1
Relatedly, Kelly argues that the district court should have
suppressed or excluded evidence of the items found at the
Warren Stret apartment because there was insufficient evid-
ence to establish, even as a threshold matter, that he construc-
tively possessed those items. This was not an argument that
he made below in support of his motion to suppress or at trial.
He therefore forfeited this argument, confining our review
to one for plain error alone. United States v. Haskins, 511 F.3d
688, 694 (7th Cir. 2007). For the same reasons that we find the
evidence sufficient to support his conviction for possessing
the firearm and the cocaine found at 3309 West Warren, we
find no plain error in the admission of evidence concerning
the gun and the cocaine.
No. 06-1808 11
In Kelly’s view, the evidence was insufficient to demon-
strate that either the gun or cocaine were under his con-
trol. He points out that neither the firearm nor the ammuni-
tion had his fingerprints on them. There was no evidence
that the gun was found among his personal belongings.
There is no dispute that he had a set of keys to the apart-
ment on his person at the time of his arrest and that he
frequented the apartment (he regularly picked up his
daughter from the apartment and took her to her maternal
grandmother to watch), and Kelly admits that he received
some mail there. But, he adds, the record is devoid of
indicia (e.g., the presence of his toiletries) that he actually
lived at the apartment, such that the inference of posses-
sion could be drawn more easily. He denies having re-
ferred to the pistol as his.2 As to the cocaine, he makes
the same arguments, and adds that there is no evidence
that the baggies in which the cocaine was packaged were
identical to those found at the scene of his arrest, or that
the cocaine found at the apartment had the same purity
and chemical signature as that discovered at the arrest
scene. On the contrary, the testimony revealed that they
had different purities.
2
Kelly suggests that the testimony concerning his alleged
statement should not have been allowed “because it created an
improper nexus between Mr. Kelly and the items seized.” Kelly
Amended Br. 13. We discern no error in the admission of
this testimony, however. If, as the government’s evidence
indicated, Kelly freely made this statement after being ap-
prised of his Miranda rights, his statement was both admissible
and probative. Whether he in fact made the statement pre-
sented a straightforward credibility question for the jury. E.g.,
United States v. Earnest, 129 F.3d 906, 912-13 (7th Cir. 1997).
12 No. 06-1808
The evidence is sufficient to support the jury’s finding
that Kelly possessed the cocaine and pistol found at the
apartment. We are, of course, obliged to view the evid-
ence in a light most favorable to the government and to
sustain the jury’s finding so long as any rational factfinder
could have made the same determination. See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). As
Kelly concedes, he had access to and frequented the
Warren Street apartment. Indeed, he not only had keys
to the apartment in his possession when he was arrested,
but he gave the Warren Street address as his own address
to the arresting officers. The gun was found in the room
occupied by his daughter and her mother. Mail addressed
to Kelly was found in that same room. The cocaine was
found elsewhere in the apartment, but it was packaged
similarly to that found at the scene of the arrest, with
the baggies bearing the same blue stars as those which
marked the baggies found at the scene of the arrest. The
fact that the cocaine found in the apartment had a dif-
ferent purity than the cocaine discovered at Homan and
Carrol Streets is beside the point, given the abundant
other evidence linking the cocaine to Kelly. Standing
out most prominently among that evidence is the testi-
mony that when confronted with the discovery of the gun
and the cocaine, Kelly referred to the gun and “the rocks”
as his and told the police that Washington knew nothing
about them. Kelly also told the officers that he kept the
gun for protection. At trial, Kelly denied making these
statements, but the jury was entitled to credit the police
testimony over his own denial. Given Kelly’s substan-
tial ties to the apartment and his own statement that the
firearm and the “rocks” were his and not Washington’s,
the evidence was more than sufficient to support the
No. 06-1808 13
jury’s finding that Kelly possessed both the firearm and
the cocaine.
B.
As we have noted, the jury in rendering its verdict
specifically found as to both Counts Two and Three that
Kelly possessed at least five but less than 50 grams of
cocaine base in the form of crack cocaine. As we have
noted, possession of that quantity of crack cocaine
elevates the statutory minimum prison term from zero
to five years and the statutory maximum term from
twenty to forty years. Compare 21 U.S.C. § 841(b)(1)(C) with
§ 841(b)(1)(B)(iii). Kelly argues that the district court
erroneously denied his post-trial motions for a new trial or
for entry of a judgment of acquittal as to Counts Two
and Three, because, in his view, the evidence was insuffi-
cient to prove that the cocaine he possessed was crack
cocaine. But in this respect Kelly misapprehends the
significance of the determination that he possessed a
particular quantity of crack cocaine. The particular type
and amount of cocaine that a defendant possesses are not
elements of the section 841 offense. See, e.g., United States
v. Gougis, 432 F.3d 735, 745 (7th Cir. 2005); Knox v.
United States, 400 F.3d 519, 523 (7th Cir. 2005). So long as
Kelly possessed, with the appropriate mental state, a
detectable amount of a substance or mixture containing
cocaine base—and Kelly does not dispute that he pos-
sessed some form of cocaine base—then he is guilty of
violating section 841. Id. Under Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348 (2000) and its progeny, the rele-
vance of the drug type and quantity determinations lies
in their effect on the sentence: because they increase the
14 No. 06-1808
statutory maximum prison term3 to which the defendant
is exposed, the jury must make these findings beyond
a reasonable doubt. E.g., United States v. Flagg, 481 F.3d
946, 949-50 (7th Cir.), cert. denied, 128 S. Ct. 193 (2007).
Consequently, the remedy for a failure of proof that a
defendant possessed a particular amount or type of co-
caine would not be to grant him a judgment of acquittal
or a new trial, but rather to remand for re-sentencing
subject to the default statutory maximum term of twenty
years. See, e.g., United States v. Noble, 246 F.3d 946, 955-56
(7th Cir. 2001). Of course, the sentence that the district
court ordered Kelly to serve—235 months—is already
below that maximum. Consequently, Apprendi is not
implicated. See United States v. Hernandez, 330 F.3d 964, 980-
81 & n.11 (7th Cir. 2003) (coll. cases). We shall nonethe-
less assume that, if the evidence as to type and quantity
of cocaine he possessed were indeed lacking, Kelly might
at least have a case to make for a limited remand for the
district court to consider whether it was inclined to re-
sentence Kelly. The district court selected the 235-month
term with reference to a Guidelines range that was
entirely above the default twenty-year maximum, and
theoretically the court might have chosen an even lower
sentence had it known that twenty years was the most
that it could impose. Cf. United States v. Della Rose, 403
F.3d 891, 907 (7th Cir. 2005) (where district judge sen-
tenced defendant at top of Guidelines range believing
that his discretion was confined to that range, it was
3
The finding that Kelly possessed at least five but less than 50
grams of crack cocaine triggered a statutory minimum prison
term of five years, but statutory minimum terms do not impli-
cate Apprendi. Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406(2002).
No. 06-1808 15
possible judge might have sentenced defendant differ-
ently knowing that he was free to impose a sentence
outside of that range) (citing United States v. Paladino, 401
F.3d 471, 482 (7th Cir. 2005)). However, having reviewed
the trial record, we conclude that the evidence was ade-
quate to support the jury’s finding.
As we noted above, crack cocaine is one form of cocaine
base. As a base, crack is distinguishable chemically from
the acid form of cocaine, cocaine hydrochloride, which
usually takes the form of a powder. See United States v.
Morris, 498 F.3d 634, 642 (7th Cir. 2007), petition for cert.
filed (U.S. Feb. 22, 2008) (No. 07-1094); United States v.
Edwards, supra, 397 F.3d at 574. But it is not chemically
distinguishable from other forms of cocaine base or from
cocaine in its natural state. See id. (citing United States v.
Booker, supra, 70 F.3d at 490). “Crack” is a street term (R. 85-
8 at 284-85), and what serves to differentiate crack cocaine
from other forms of cocaine base are its form and color as
well as the way in which it is typically packaged for
distribution on the street. See Morris, 498 F.3d at 642;
Edwards, 397 F.3d at 572-73; see also, e.g., United States v.
Johnson, 437 F.3d 69, 75 (D.C. Cir. 2006); United States v.
Waters, 313 F.3d 151, 156 (3d Cir. 2002); United States v.
Dent, 149 F.3d 180, 190 (3d Cir. 1998). Crack cocaine
typically assumes a lumpy, rock-like form and has an off-
white or yellowish cast. U.S.S.G. § 2D1.1(c), Note D;
Edwards, 397 F.3d at 372-73. Individual bits or “rocks” of
crack cocaine commonly are packaged in small plastic
bags for distribution at the street level. See R. 85-7 at 210-
11; R. 85-8 at 304; e.g., Morris, 498 F.3d at 642; United States
v. Griffin, 194 F.3d 808, 817 (7th Cir. 1999).
DEA chemist Harris analyzed the chemical composi-
tion of the cocaine found at the scene of Kelly’s arrest
and at the Warren Street apartment and testified that in
16 No. 06-1808
both instances it was cocaine base. Harris acknowledged
that no traces of sodium bicarbonate were discovered in
either instance. But this did not rule out the possibility
that the substance constituted crack cocaine. As Harris
testified, sodium bicarbonate is not the only base that can
be used to convert cocaine hydrochloride into crack
cocaine. Moreover, even when sodium bicarbonate is
used, because it is water soluble it is possible for all
remnants of it to be disposed of when the liquid is poured
off at the conclusion of the conversion process.
As to the cocaine base found at the Warren Street apart-
ment, Special Agent Culloton’s testimony supplied an
ample basis for the jury to conclude that this was crack
cocaine. What remained of this cocaine after testing
had been preserved in the same form in which it had
been discovered, and as set forth above, Culloton testi-
fied based on his experience that the substance looked
like crack cocaine: it had an off-white color and a rock-like
appearance and texture. Moreover, the cocaine was pack-
aged in a manner consistent with the sale of individual user
quantities, and the blue stars on the mini Ziploc bags were
consistent with the markings cocaine dealers used to brand
their products. Finally, as Culloton pointed out, Kelly
himself had referred to the cocaine as “rock” or “rocks,”
which is a street term commonly used in reference to crack
cocaine. See United States v. Earnest, 185 F.3d 808, 812 (7th
Cir. 1999) (sellers and buyers of crack cocaine are experts
in what constitutes crack).
The evidence as to the cocaine base recovered from the
scene of Kelly’s arrest is less complete, because none of
that cocaine was preserved in the same form in which it
had been discovered nor was it photographed before it
was ground up for testing. Consequently, the most that
Culloton could say was that if the cocaine base had the
No. 06-1808 17
same appearance as that found in the Warren Street
apartment, he would surmise that it was crack cocaine.
He also said that the packaging of the cocaine was con-
sistent with individual-user quantities.
Still, we view the evidence as sufficient to support the
jury’s finding that this too was crack cocaine. The trial
testimony established that the cocaine was in a rock form
before it was ground up for testing. R. 85-7 at 181; R. 85-8
at 275. The cocaine was packaged in the same manner as
the cocaine found at the Warren Street apartment, and the
small Ziploc baggies in which the cocaine was packaged
bore the same blue stars as the baggies used to package
the cocaine found at the apartment. As the substance
was packaged in the same way, and in comparable user-
sized quantities, as the crack cocaine found at the War-
ren Street apartment, it is a rational inference that this
cocaine base was crack cocaine. Finally, although Kelly’s
counsel attempted to suggest that the cocaine might
have been in paste form (which, like crack, can be smoked
and is smoked in the Andes, see United States v. Brisbane,
367 F.3d 910, 911 (D.C. Cir. 2004)), the testimony estab-
lishes that this is quite unlikely: DEA forensic chemist
Harris testified that he had never seen coca paste in his
seven-plus years as a forensic chemist (R. 85-8 at 291) and
that the high level of purity of the cocaine he tested in this
case was inconsistent with it being coca paste (R. 85-8 at
296); and Officer Lipsey testified that in her five years
of narcotics surveillance on Chicago’s west side, she
had never come into contact with coca paste nor heard of
it being distributed (R. 85-7 at 196).4
4
At one point in his testimony, Culloton, noting that the
laboratory report regarding Exhibit 6 (the cocaine found at the
(continued...)
18 No. 06-1808
C.
Finally, Kelly contends that he was improperly desig-
nated a career offender for sentencing purposes. Section
4B1.1(a) of the Guidelines provides that a defendant is a
career offender if (1) he was at least eighteen years old
when he committed the offense of conviction, (2) the
offense of conviction is a felony that qualifies as either
a crime of violence or a controlled substance offense,
and (3) the defendant has at least two prior felony con-
victions for either a crime of violence or a controlled
substance offense. The career offender designation in-
creases the advisory sentencing range by boosting a
defendant’s criminal history category to VI (the highest
category) and by specifying a default offense level that in
many cases is higher than would otherwise apply. See
§ 4B1.1(b). In this case, as we have noted, Kelly’s offense
level ultimately was not increased by the designation, but
his criminal history category was boosted by two levels.
Kelly concedes that he meets the first two criteria for the
career offender designation, and that he has one prior
felony conviction for a crime that qualifies as a con-
trolled substance offense. However, he contends that the
record does not support the district court’s conclusion
4
(...continued)
Warren Street apartment) indicated that the substance contained
cocaine base, remarked that “[c]ocaine base is a form of crack
cocaine.” R. 85-8 at 307. That was erroneous; although crack is a
form of cocaine base, not all cocaine base is crack. Edwards, 397
F.3d at 571. Kelly suggests that Culloton’s misstatement may
have misled the jury, but we view that as unlikely. Culloton
expressly acknowledged on cross-examination that not all
cocaine base is crack (R. 85-8 at 309), and the parties themselves
correctly recognized and argued that point throughout the case.
No. 06-1808 19
that he also has a second prior conviction for a con-
trolled substance offense that suffices to put him in the
career offender category. Specifically, he contends that
the record before the district court did not make clear
whether the second prior conviction was one for possessing
a controlled substance with the intent to distribute,
which would qualify as a controlled substance offense
for purposes of section 4B1.1, or rather one for simple
possession, which would not. See § 4B1.2(b) (defining
“controlled substance offense” to mean a felony offense
involving the manufacture, import, export, distribution
or dispensing of a controlled substance or the possession
of a controlled substance with the intent to manufacture,
import, export, distribute, or dispense); United States v.
Atkinson, 979 F.2d 1219, 1222 (7th Cir. 1992).
Our review is limited to one for plain error, as Kelly did
not make this argument below, e.g., United States v. Haskins,
511 F.3d 688, 694 (7th Cir. 2007), and no such error occurred
here. The probation officer’s pre-sentence report (“PSR”)
described the relevant prior conviction as one
for possession of a controlled substance with intent to
deliver, for which conviction Kelly was ordered to serve
a prison term of three years. R. 82 at 9. So described,
that conviction met the Guidelines’ definition of a prior
felony conviction for a controlled substance offense. Kelly
argues that the record before the district court did not
confirm the PSR’s characterization of the prior convic-
tion, because it did not include any of the documenta-
tion underlying that conviction and, as Kelly now points
out, the three-year sentence he received was consistent
with a conviction for simple possession of a controlled
substance as well as a conviction for possession with the
intent. But nothing on the face of the PSR gave reason to
20 No. 06-1808
question its accuracy, and in the absence of an objection,
the district court was entitled to rely on its characteriza-
tion of Kelly’s prior conviction. See Fed. R. Crim. P.
32(i)(3)(A) (sentencing court “may accept any undisputed
portion of the presentence report as a finding of fact . . .”);
e.g., United States v. Sanchez, 507 F.3d 532, 537 (7th Cir. 2007)
(defendant bears burden of producing some evidence
calling into question accuracy of PSR) (coll. cases). And, as
it turns out, the PSR’s characterization of the prior con-
viction was entirely accurate: Kelly’s appellate counsel
obtained a transcript of the 1997 hearing at which Kelly
changed his plea to one of guilty, and that transcript makes
clear that Kelly was pleading guilty not to simple posses-
sion of a controlled substance but rather possession
with the intent to distribute. Appeal No. 06-1808, Doc.
No. 30 (letter dated Nov. 6, 2006 from appellant’s coun-
sel, with attachment). That information forecloses the
possibility that any error occurred which would war-
rant relief under the plain error standard. See United
States v. Nance, 236 F.3d 820, 825-26 (7th Cir. 2000). Kelly’s
related argument, that his base offense level on the firearm
charge was improperly calculated based on the mistaken
notion that he had two prior convictions for a con-
trolled substance offense, fails for the same reason.
III.
For the foregoing reasons, we AFFIRM Kelly’s convic-
tion and sentence.
USCA-02-C-0072—3-10-08