United States v. Millbrook, Kim Lee

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2931
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K IM L EE M ILLBROOK,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 CR 40033—Michael M. Mihm, Judge.
A RGUED M AY 5, 2008—D ECIDED JANUARY 23, 2009
Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Kim Lee Millbrook was con-
victed following a jury trial of drug and firearm offenses
as well as several counts of witness tampering and one
count of witness retaliation. The district court sentenced
him to 372 months’ imprisonment to be followed by eight
years of supervised release. Millbrook appeals, challenging
the district court’s refusal to suppress evidence found in
searches of his mother’s home and a storage locker. He
also raises a number of evidentiary challenges and argues
2 No. 07-2931
that his case should be remanded for resentencing in
light of changes to the United States Sentencing Guide-
lines regarding crack cocaine.
I.
In January of 2006, Millbrook’s parole officer, Mitch
Blackert, received a call from Millbrook’s wife Kristina
regarding a domestic dispute. In addition to telling Officer
Blackert that she had obtained an order of protection
against Millbrook, Kristina told him that she had seen
Millbrook with a firearm and crack cocaine. This report
prompted Officer Blackert to seek out Millbrook at his
mother’s house in Rock Island, Illinois.
According to Officer Blackert’s trial testimony, when
he arrived at the house, Millbrook was standing in front
of his car. After relaying Kristina’s allegations to
Millbrook, Officer Blackert told him that he needed to
search his car, to which Millbrook responded, “No, man.”
Millbrook then opened the driver’s side door of his car
and reached in under the front seat. Officer Blackert
ordered Millbrook out of the car with his hands up, but
Millbrook instead walked around to the passenger side
of the car and retrieved his cell phone from the glove
compartment, where Officer Blackert saw a baggie of
marijuana. When Officer Blackert told Millbrook that he
had seen the marijuana, Millbrook responded, “It’s just
some weed, man.” Officer Blackert then told Millbrook
to get out whatever was in the glove compartment so
they could talk about it, and Millbrook responded by
grabbing a black box and the marijuana from the glove
compartment and fleeing.
No. 07-2931 3
Officer Blackert gave chase. The chase ended after
15 or 20 seconds when Millbrook disappeared behind a
house. Millbrook walked back around the house with
his hands in the air saying, “You ain’t got me with noth-
ing.” Although Millbrook did in fact have nothing, a
search of his flight path turned up the black box from
his glove compartment, the baggie of marijuana, and
several tissues with crack cocaine, all inside a brand new
(with the city tag still attached), otherwise empty garbage
can in the yard where Millbrook had run out of Officer
Blackert’s sight. Millbrook was then arrested and
searched, and $1,039 in cash was recovered from his
pocket.
After the incident with Officer Blackert, police
obtained search warrants for Millbrook’s mother’s house
in Rock Island. The search revealed two safes in the attic,
and one in a bedroom closet. The two attic safes con-
tained ammunition and a total of eight guns (three in one
and five in the other). The remaining safe contained
personal papers belonging to Millbrook’s brother
Theodore (who lived there), and a small amount of mari-
juana. There were three scales on the closet shelf near the
safe. Based on the evidence uncovered in the search and
another report from Kristina that Millbrook kept drugs
and firearms in a storage unit, police obtained a warrant
to search two storage units at AAA Self Storage in Rock
Island. One unit contained a small safe with a box of
ammunition inside.
After his arrest, Millbrook made a number of telephone
calls to his brother Theodore from the Rock Island County
4 No. 07-2931
Jail. In the recorded calls, Millbrook tried to talk Theodore
into taking responsibility for the guns. Millbrook was
also recorded arguing with his wife, Kristina, and threaten-
ing to kill her when he was released from prison.
Before trial, Millbrook moved to suppress the evidence
found in the trash can as well as the guns seized pursuant
to the warrants. After an evidentiary hearing, the district
court denied Millbrook’s motion in its entirety. Before
trial, Millbrook also moved in limine to exclude
evidence of a previous drug conviction, but the district
court denied his motion.
At trial, the jury heard from Officer Blackert, the other
officers who assisted in Millbrook’s arrest, Millbrook’s
brother Theodore, and Special Agent Jon Johnson. Agent
Johnson testified that in his experience 10.6 grams of
cocaine would “definitely” be for redistribution. He also
testified that the small denominations comprising the
$1,039 in cash found in Millbrook’s pocket were con-
sistent with drug distribution. The jury also heard the
recorded conversation between Millbrook and Kristina.
The jury found Millbrook guilty on all counts of the
superseding indictment.
II.
A. Motion to Suppress
Millbrook argues that the district court erred by
denying his motion to suppress the evidence seized in the
No. 07-2931 5
searches of his mother’s home and the storage units.1
When a search is executed pursuant to a facially valid
warrant, we review the district court’s findings of
historical fact for clear error, and its legal conclusions,
including the underlying question of whether probable
cause for the warrant existed, de novo. See United States
v. McIntire, 516 F.3d 576, 577-78 (7th Cir. 2008) (resolving
“intra-circuit conflict” regarding proper standard of
appellate review when warrant has issued). On the
mixed question of whether the supporting affidavit
contained facts amounting to probable cause, we review
the issuing judge’s conclusion with “great deference,”
without giving any weight to the district court’s later
resolution of that question. Id.; Ornelas v. United States,
517 U.S. 690, 696-97 (1996). The district court agreed with
Millbrook that the warrant to search his mother’s house
was inadequate, but upheld it nevertheless under the
good-faith exception to the exclusionary rule articulated
in United States v. Leon, 468 U.S. 897 (1984). The district
court upheld the second search under Leon as well,
without deciding whether the warrant itself was valid.
Probable cause to issue a search warrant is established
when the information in the supporting affidavit, taken
as a whole, provides information that would lead a rea-
sonable person to believe there is a fair probability that
contraband or evidence of a crime will be found. Illinois
v. Gates, 462 U.S. 213, 238-39 (1983); United States v. Curry,
538 F.3d 718, 729 (7th Cir. 2008).
1
He has abandoned his challenge to the evidence recovered
as a result of his encounter with Officer Blackert.
6 No. 07-2931
The first affidavit (for the search of Millbrook’s mother’s
home) recounts Kristina’s allegation that Millbrook kept
drugs and firearms at his mother’s home. It also details
Millbrook’s encounter with Officer Blackert that led to
the discovery of the crack cocaine and the marijuana.
Although Millbrook’s possession of crack tends to sub-
stantiate Kristina’s claim that she had seen him with
crack cocaine, it does little to lend credence to her bare
assertion that Millbrook kept drugs and firearms at his
mother’s home. On that front, the affidavit simply recounts
that in the affiant’s experience, individuals who sell
marijuana and controlled substances often keep drugs
and other materials related to drug sales in their homes.
It is thus a close call whether the affidavit as a whole
provided probable cause. A close call coupled with the
“great deference” afforded the issuing judge means that
the warrant is likely valid.
We need not decide that issue, however, because the
fruits of the search are undoubtedly admissible, as
the government urges, under the good-faith exception
articulated in Leon. Under Leon, it is inappropriate to
suppress the fruits of a search conducted pursuant to a
later-invalidated warrant provided the executing
officers relied on the warrant in good faith. Leon, 468 U.S.
at 922-23; United States v. Woolsey, 535 F.3d 540, 546 (7th
Cir. 2008). That the officers obtained a warrant is itself
prima facie evidence of good faith. Leon, 468 U.S. at 922;
United States v. Watts, 535 F.3d 650, 657 (7th Cir. 2008).
Millbrook can rebut that presumption by demonstrating,
as relevant here, that the supporting affidavit was “ ‘so
lacking in indicia of probable cause as to render official
No. 07-2931 7
belief in its existence entirely unreasonable.’ ” Leon, 468
U.S. at 923 (quoting Brown v. Ill., 422 U.S. 590, 611 (1975)
(Powell, J., concurring)).
Neither the supporting affidavit for the search of his
mother’s home nor the affidavit to search the storage
unit fall into this category. As discussed above, the first
affidavit detailed a tip from Kristina that Millbrook
stored drugs and weapons at his mother’s home. Further
investigation turned up Millbrook outside of the home,
carrying over 10 grams of crack cocaine. This gave some
credence to Kristina’s assertions, and the affidavit
detailing this information was certainly not so utterly
lacking in facts supporting probable cause that no rea-
sonable officer could rely upon it. Likewise, the affidavit
requesting a warrant for the storage unit contained facts
supporting the existence of probable cause: the first search
had indeed turned up a number of weapons, a fact which
tended to make Kristina’s assertions about the storage
unit more believable. We thus reject Millbrook’s claim
that the evidence uncovered in the searches should
have been suppressed. United States v. Carmel, 548
F.3d 571, 576-77 (7th Cir. 2008).
B. Introduction of Rule 404(b) Evidence
Millbrook also claims that the district court erred in
admitting under Federal Rule of Evidence 404(b) evidence
of a 1994 conviction for delivery of a controlled sub-
stance. Before trial, Millbrook moved in limine to exclude
evidence of the drug sale and resulting conviction. In
denying Millbrook’s motion, the district court accepted
8 No. 07-2931
the government’s contention that the prior conviction
was relevant to some other purpose beyond Millbrook’s
propensity to sell crack. The court also concluded that
the 12 years that had elapsed since the prior conviction
did not amount to an “excessive” period of time. We
review the district court’s evidentiary decision for an
abuse of discretion. United States v. Reyes, 542 F.3d 588,
592 (7th Cir. 2008). Even erroneous evidentiary rulings
will not be overturned if the resulting error was harmless.
United States v. Wantuch, 525 F.3d 505, 513 (7th Cir. 2008).
Rule 404(b) prohibits the admission of prior crimes
or bad acts to prove that the defendant has a propensity
to commit crimes and acted in conformity therewith.
Fed. R. Civ. P. 404(b). Such evidence may be admitted,
however, if it is offered for other purposes, such as estab-
lishing intent, knowledge, motive, or opportunity. To be
admissible, the evidence of a prior conviction or bad
act must meet the following criteria: (1) it must be
directed toward establishing a matter in issue other than
the defendant’s propensity to commit the crime charged;
(2) it must be similar enough and close enough in time
to be relevant to the matter in issue; (3) it must be
sufficient to support a jury finding that the defendant
committed the similar act; and (4) its probative value
must not be substantially outweighed by the danger of
unfair prejudice. E.g., Watts, 535 F.3d at 657-58.
Millbrook maintains that the evidence of his prior
conviction fails on the first, second, and fourth prongs
of the inquiry. He argues that, given the differences
between his prior offense and the charged offense, the
No. 07-2931 9
previous conviction served no purpose beyond demon-
strating his propensity to engage in criminal conduct. The
government contends that Millbrook’s defense—that he
possessed the crack but never intended to distribute
it—made the prior conviction particularly relevant to
establishing intent.
As for whether the evidence was relevant to any matter
in issue beyond propensity, we have repeatedly recognized
that evidence of a prior drug conviction is “especially
relevant and probative when” a defendant concedes
possession of narcotics but denies the drugs were
intended for anything beyond personal use. United States
v. Puckett, 405 F.3d 589, 596 (7th Cir. 2005); accord United
States v. Harris, 536 F.3d 798, 808 (7th Cir. 2008); United
States v. Hurn, 496 F.3d 784, 787 (7th Cir. 2007).
Although the line between propensity and intent is a
fine one, the district court was within its discretion to
conclude that Millbrook’s prior conviction was relevant to
the disputed issues of Millbrook’s knowledge and intent.
See United States v. Chavis, 429 F.3d 662, 673 (7th Cir. 2005)
(Cudahy, J., concurring) (“To meet the test of Rule 404(b),
there must be a showing that an issue has been joined as
to intent, or another of the 404(b) categories, discrete
from a showing of mere propensity.”). In light of
Millbrook’s defense, the prior conviction was admissible
to cast doubt on his assertion that he never intended to
distribute the 10.6 grams of crack and to shed light on his
knowledge of distribution methods. Although the court
could have been more thorough in its discussion on this
point, it is clear that it listened to the arguments on both
10 No. 07-2931
sides before concluding that the government “made a
valid showing under knowledge, plan, lack of mistake,
or accident.”
The question remains, however, whether the consider-
able prejudicial impact of the evidence outweighed its
probative function, particularly in light of the elapsed
time between the two charges and the differences
between the two crimes. The 12-year gap between this
event and Millbrook’s possession of 10.6 grams of crack
certainly diminishes the probative value of the prior sale.
However, a temporal gap need not be fatal to admissibil-
ity, especially when, as is the case here, the defendant has
spent much of the intervening time incarcerated. See
United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007)
(noting that five and six-year time gaps were “a bit mis-
leading” since the defendant “could not have participated
in robberies during many of the intervening years as he
was incarcerated”); see also United States v. Macedo, 406
F.3d 778, 793 (7th Cir. 2005) (upholding court’s admission
of evidence of cocaine sale nine years before). Focusing on
the time-frame itself, the government parades out cases
admitting prior bad acts that occurred as many as ten and
13 years before the charged crimes. See United States v.
Hurn, 496 F.3d 784, 788 (7th Cir. 2007) (10-year-old drug
conviction relevant to intent when defendant claimed he
was an innocent bystander to cocaine distribution);
United States v. Polichemi, 219 F.3d 698, 709-10 (7th Cir.
2000) (10-year gap upheld in fraud case in part because
prior behavior provided evidence of intent); United
States v. Wimberly, 60 F.3d 281, 285 (7th Cir. 1995) (allowing
13-year gap when sexual molestation crimes were “virtu-
No. 07-2931 11
ally identical”). Given the large temporal gap here, the
government has an increased obligation to demonstrate
the earlier conviction’s continued relevance. Although
we think the case a very close one, we conclude that the
district court was within its substantial discretion to
admit the evidence of Millbrook’s prior sale. The jury
heard evidence that in 1993, Millbrook flagged down an
undercover police officer and offered to sell him a 1/2-gram
rock of crack cocaine for $50. As discussed above, this
incident sheds some light on Millbrook’s intent with the
10.6 grams recovered in this case, as well as his knowledge
of cocaine distribution practices. We emphasize, however,
that the 12-year gap puts this case at the outer limits of
what is permissible under Rule 404(b). See Polichemi, 219
F.3d at 709 (characterizing conduct that occurred more
than 10 years prior to charged crime as “at the outer
edges” of Rule 404(b)’s requirements); cf. United States v.
Garcia, 291 F.3d 127, 137-38 (2d Cir. 2002) (rejecting gov-
ernment’s contention that drug transaction occurring
12 years prior was admissible).
We are also unconvinced by Millbrook’s claim that the
events are not sufficiently similar because the prior con-
viction involved a hand-to-hand transaction and his
current conviction stems from his possession of crack. The
similarity inquiry centers on the purpose for which the
conviction is offered. Macedo, 406 F.3d at 793. The fact
that Millbrook had previously sold a 1/2-gram rock of
cocaine undermined to some extent his vigorous attack of
Agent Johnson’s testimony that Millbrook possessed more
than a personal use quantity of crack, and established his
knowledge of the value of smaller amounts of crack. See
United States v. Perkins, 548 F.3d 510, 514 (7th Cir. 2008)
12 No. 07-2931
(“His 1998 and 2003 convictions for possession of less
than 15 grams of cocaine are probative of his knowledge
that even one gram has value.”); United States v. Jones,
455 F.3d 800, 809 (7th Cir. 2006) (eight-year-old drug
trafficking conviction relevant and probative of defen-
dant’s “knowledge of the drug trade and the practices of
drug dealers [and his] . . . knowledge of the commercial
value of even small amounts of the drug and therefore his
intent to sell the lesser amount.”). We are therefore unper-
suaded by Millbrook’s argument that the prior conviction
is too dissimilar to be admissible. See Macedo, 406 F.3d at
793 (rejecting defendant’s claim that prior act was too
dissimilar because it involved cocaine and current con-
viction was for methamphetamine); United States v. Mounts,
35 F.3d 1208, 1214-15 (1994) (upholding admission of
prior attempt to purchase cocaine despite “significant”
differences from charged conduct).
Finally, we agree with the government that the
probative value of the evidence was not outweighed by
its prejudice, which was lessened by the district court’s
limiting instructions. The district court repeatedly cau-
tioned the jury to consider the prior conviction only for the
limited purpose of evaluating Millbrook’s intent or demon-
strating his knowledge or absence of mistake, thereby
reducing the possibility that Millbrook was unfairly
prejudiced by the evidence. Jones, 455 F.3d at 809.
C. Expert Testimony
Millbrook next contends that the district court abused
its discretion by allowing Agent Jon Johnson to testify as
No. 07-2931 13
an expert regarding the thousand dollars in cash recovered
in Millbrook’s pocket. Over Millbrook’s objection, the
district court allowed Agent Johnson to testify that crack
addicts, typically strapped for cash, often purchase crack
using small-denomination bills referred to as “street bills.”
Agent Johnson opined that the number of small bills
Millbrook was carrying in his $1039 bundle ($49 in one-
dollar bills, $150 in five-dollar bills, $60 in tens, and $280
in twenties) was consistent with drug distribution.
The critical inquiry when considering the admissibility
of expert testimony is whether the testimony will assist
the jury to resolve a disputed issue. Federal Rule of
Evidence 702 provides that “[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in the
form of opinion or otherwise.” We have consistently held
that because most jurors are unfamiliar with the
specifics of the drug trade, expert testimony related to the
mechanics of drug sales is permissible. E.g., United States
v. Glover, 479 F.3d 511, 516 (7th Cir. 2007); United States
v. Cruz-Velasco, 224 F.3d 654, 660 (7th Cir. 2000) (collecting
cases).
Millbrook concedes, as he must, that jurors are unlikely
to know how most drug users tend to pay for their drugs
and that Agent Johnson’s testimony on that point is
therefore helpful. He contends, however, that the average
juror certainly understands “what it means to carry cash
in one’s pocket.” Given this, Millbrook believes that
14 No. 07-2931
Agent Johnson’s testimony about the large sum of cash
was unhelpful.
Millbrook’s argument misses the mark. Undoubtedly
the jury needs no assistance in comprehending the simple
fact that Millbrook was carrying just over $1,000 in his
pocket. That was not the point of Agent Johnson’s testi-
mony. He explained the potential significance of both the
cash and the small bills, two areas where his expertise as
a Drug Enforcement Agent unquestionably assisted the
jury in understanding a disputed issue—namely, whether
Millbrook had $1000 dollars in his pocket because his
mother had given him $800 to pay a utility bill, as he
claimed, or because he was carrying the proceeds of drug
sales. See United States v. Smart, 98 F.3d 1379, 1390 n.15
(D.C. Cir. 1996) (expert testimony on “large amounts
of cash in small-denomination bills” proper); United
States v. Peters, 15 F.3d 540, 544-45 (6th Cir. 1994) (“Expert
testimony indicated that amount of drugs, the currency
denominations, and the presence of a pager were con-
sistent with drug distribution.”) (emphasis added).
D. Witness Retaliation
Millbrook next argues that there was insufficient evi-
dence to support his conviction for witness retaliation. In
reviewing the sufficiency of the evidence, we ask only
whether, viewing the evidence in the light most favorable
to the government, there is any evidence from which a
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. E.g., United States v.
Jackson, 540 F.3d 578, 593 (7th Cir. 2008).
No. 07-2931 15
Millbrook was convicted of violating 18 U.S.C.
§ 1513(b)(2), which provided 2 in relevant part as follows:
(b) Whoever knowingly engages in any conduct and
thereby causes bodily injury to another person . . . or
threatens to do so, with intent to retaliate against
any person for—
...
(2) any information relating to the commission or
possible commission of a Federal offense or a violation
of conditions of probation, supervised release, parole,
or release pending judicial proceedings given by a
person to a law enforcement officer;
or attempts to do so, shall be fined under this title or
imprisoned not more than 10 years, or both.
18 U.S.C. § 1513(b)(2) (West 2007).
Millbrook argues that although the jury heard him
threaten Kristina in the recorded phone call, the govern-
ment failed to prove a link between his threats and her
provision of information. The jury heard a recorded
conversation between Kristina and Millbrook in which
the two were arguing over Kristina’s decision to sell
Millbrook’s car. Their profanity-laced exchange over the
car escalated into a series of direct insults that included the
following exchange, which we quote directly from the
2
After Millbrook’s conviction, section 1513(b)(2) was
amended to increase the maximum penalty for a violation
from ten to twenty years. See Pub. L. 110-177, § 206(3)(B) (2008).
16 No. 07-2931
transcript of the call (“KM” refers to Kim Lee Millbrook
and “TM” refers to Kristina Millbrook):
KM: Bitch you got me locked up. You stinkin ho[.]
TM: Sure, sure didn’t[.]
KM: But your day is comin, I betch you that. I betch
your day come ho. I betch you that.
TM: Yup.
KM: It’s comin. It’s comin. It’s comin bitch.
...
KM: You punk motherfucker.
TM: [D]on’t give a fuck about you.
KM: Punk ass ho, what the fuck is you talkin’ about[?]
Bitch gonna talk shit to me, I’m locked up be-
cause of you mother fucker.
TM: You sure am. (Inaudible)
KM: You punk ass ho. I betch you I get your bitch ass.
TM: (Inaudible) go to prison cause of me.
...
KM: All I want to do is walk the street.
TM: (Inaudible) court.
KM: Then come to court bitch. I’m gonna tell ‘em the
guns was yours you stinkin ho. Bitch, you’re the
one that tell ‘em where they was at.
TM: Yeah.
No. 07-2931 17
KM: Bitch. You’re the one that gave em the keys.
You’re the one tell ‘em, where the shit was at.
It was your shit bitch.
...
KM: I’m gonna kill you ass ho. I’m gonna getch you,
I swear on my mama. I’m gettin you. I’m gonna
getch you. Now you can take it as you want.
TM: I’ll take it (inaudible).
KM: You[’re] done, you[’re] done, the day I walk the
street bitch your ass is out ho.
TM: I don’t give a fuck.
Millbrook argues that although he threatened Kristina
in the recorded call, no rational jury could have con-
cluded that he did so as a response or in retaliation for
the information she provided to Officer Blackert, as
required by the witness retaliation statute. We disagree.
Millbrook lashes out at Kristina for her role in his arrest,
and goes on to threaten her in no uncertain terms. It is a
fair inference that Millbrook issued the menacing “I’m
gonna getch you” warning in response to Kristina’s
decision to tell Officer Blackert that Millbrook possessed
drugs and weapons in violation of the terms of his parole.
Clearly this interpretation of the conversation falls
within the statutory definition of witness retaliation:
threatening to cause bodily injury to retaliate for informa-
tion given to law enforcement regarding probation viola-
tions. See 18 U.S.C. § 1513(b)(2). Millbrook’s spin on the
conversation—that although Millbrook and Kristina
exchanged insults and displayed the ugly side of their
18 No. 07-2931
rocky relationship, Millbrook was not threatening
Kristina in response to her provision of information to the
police some four months prior—may be plausible, but the
jury was not required to accept it. Maher v. City of Chi., 547
F.3d 817, 825 (7th Cir. 2008).
E. Cumulative Error
Millbrook next contends that even if none of the errors he
alleges warrant reversal when considered in isolation,
together they amount to cumulative error necessitating
reversal. See, e.g., United States v. Smith, 502 F.3d 680, 690
(7th Cir. 2007) (“Although any single error by itself may
be insufficient to taint a jury, the combined effect of
multiple erroneous rulings may result in significant harm
necessitating another trial.”). The obvious problem with
this line of argument is that, as discussed above, we do
not believe any of the district court’s trial rulings
amounted to an abuse of discretion. There is thus no
reason to believe that Millbrook received an unfair trial.
See United States v. Price, 520 U.S. 753, 761 (2008).
F. Sentencing
Lastly, Millbrook argues that resentencing is necessary
in light of the Supreme Court’s decision in Kimbrough
recognizing a district court’s authority to take into account
the sentencing disparity between crack and powder
cocaine offenses when fashioning a sentence under 18
U.S.C. § 3553(a). See Kimbrough v. United States, 128 S. Ct.
558, 573-75 (2007). He also claims that Amendment 706 to
No. 07-2931 19
the Sentencing Guidelines—which reduced the disparity
between crack and powder cocaine offenses—renders
his sentence invalid.
We disagree. Millbrook was sentenced as a career
offender, which means that the crack and powder
cocaine disparity in the Guidelines did not affect his
sentence. His base offense level was determined, not by
drug quantity, but by the statutory maximum applicable
to his offense under 21 U.S.C. § 841(b)(1)(A). See U.S.S.G.
§ 4B1.1(b). Thus, any discrepancy that may arise under
§ 4B1.1 arises on account of § 841(b) itself—congressional
legislation that, in contrast to the Sentencing Guidelines, is
not advisory. Thus, Kimbrough’s discussion of a district
court’s discretion to take into account the crack/powder
disparity is of no consequence to a defendant sentenced
under § 4B1.1 as a career offender. See United States v.
Harris, 536 F.3d 798, 813 (7th Cir. 2008) (collecting cases).
Neither is Amendment 706, which applies to the drug
quantity table in U.S.S.G. § 2D1.1, not the career offender
provision in § 4B1.1. Harris, 536 F.3d at 813; see also United
States v. Clay, 524 F.3d 877, 878-79 (8th Cir. 2008) (“Al-
though the recent amendments to the sentencing guide-
lines 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 . . . .”).
Although the ultimate guideline range recommended by
§ 4B1.1(b) itself is still advisory, Harris, 536 F.3d at 813,
there is nothing in the record to suggest the district court
misunderstood its authority to depart from the range
specified by the career-offender guidelines. The district
20 No. 07-2931
court here considered the factors in § 3553(a) and con-
cluded after reviewing Millbrook’s lengthy criminal
history that Millbrook “seemed to be the kind of person
that Congress was thinking of . . . when they created this
category of armed career criminal.” We are thus equally
unpersuaded by Millbrook’s assertion that remand for
resentencing is warranted under Gall v. United States, 128
S. Ct. 586 (2007), which was decided several months
after his sentencing. Gall, which reiterates the proper post-
Booker procedure for imposing a sentence, is not helpful
to Millbrook since there is no suggestion that his guide-
line range was incorrectly calculated or that the district
court failed to make an “individualized assessment
based on the facts presented.” Id. at 97.
III.
For the foregoing reasons, we A FFIRM Millbrook’s
convictions and sentence.
1-23-09