United States v. James Winbush, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1602
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES R. W INBUSH, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:05 CR 76—Philip P. Simon, Judge.
A RGUED A PRIL 14, 2009—D ECIDED S EPTEMBER 1, 2009
Before K ANNE, R OVNER, and W OOD , Circuit Judges.
K ANNE, Circuit Judge. James Winbush is a drug dealer,
and he was caught red-handed plying his trade.
Police watched as Winbush sold crack cocaine to a confi-
dential informant, after which Winbush brandished a
handgun and fled his vehicle. A jury convicted Winbush
of five federal crimes, and he now challenges both his
conviction and his sentence. Despite the commendable
and zealous advocacy of his appointed appellate
counsel, we find no merit to Winbush’s challenges.
2 No. 08-1602
I. B ACKGROUND
On December 20, 2004, the Gary Police Department
staged a controlled purchase of over five grams of crack
cocaine from James Winbush. Police followed Kenneth
Jones, a police informant, as he parked his vehicle on
the 2300 block of Kentucky Street in Gary. Winbush
arrived in another vehicle moments later, and police
observed what appeared to be a narcotics transaction.
Their suspicions were confirmed when Jones returned to
the police station with 5.8 grams of cocaine base.
Police tailed Winbush and a passenger after they left the
scene and pulled them over approximately two blocks
from where the drug deal had occurred. As officers
approached the vehicle, they saw a gun in Winbush’s
right hand, pointed upward. Winbush shoved his passen-
ger, Timothy Frazier, out the side door, then fled through
the same door. Frazier stayed on the ground, as the
police had commanded, and was taken into custody.
Police found 288 grams of marijuana in a bag on Frazier’s
chest. Frazier later testified that Winbush told him,
“I might need you to run with this,” and left the bag as
he fled.
Police chased Winbush and caught him on the 2300
block of Kentucky Street, near where he had just sold crack
to Jones. Officers struggled with Winbush but ultimately
subdued and arrested him. Police noticed that he was
no longer wearing the stocking cap and distinctive
black and white leather jacket that he had on when he
fled his vehicle. Nor did Winbush possess a firearm.
Winbush, however, did have $900 in cash, $200 of which
No. 08-1602 3
was photocopied money that police had provided Jones
to consummate the staged drug buy.
Following footprints in the snow, police retraced their
path of pursuit, particularly concerned with finding
Winbush’s firearm. They recovered much more. In the
2300 block of Tennessee Street, one block to the east of
Kentucky Street, police recovered five clear knotted
plastic bags containing what analysis later revealed to be
9.3 grams of crack cocaine (the “Tennessee crack”). In
the 2300 block of Kentucky Street, they found
Winbush’s leather jacket, which contained a .40-caliber
Ruger handgun and a plastic bag holding 20.2 grams of
crack cocaine in fifty-two separate baggies (the “Kentucky
crack”). Finally, near Winbush’s vehicle, police found
the stocking cap that he was wearing when he fled.
The second superseding indictment against Winbush 1
charged him with one count of distribution and one
count of possession with the intent to distribute five
grams or more of cocaine base, see 21 U.S.C. § 841(a)(1);
possession with the intent to distribute marijuana, see id.;
unlawful possession of a firearm by a felon, see 18 U.S.C.
§ 922(g)(1); and possession of a firearm in furtherance of
a drug trafficking crime, see id. § 924(c).
After various pretrial motions and multiple continu-
ances, the district court scheduled Winbush’s trial for
November 13, 2007. On October 3, 2007, the government
1
The original indictment was filed May 19, 2005, followed
by a superseding indictment on July 22, 2005, and the
second superseding indictment on October 3, 2007.
4 No. 08-1602
filed its Notice of Expert Witnesses, which notified
Winbush that the government planned to call, among
others, Michael Shay, a forensics examiner with the
Federal Bureau of Investigation; Deputy Commander
Michael Reilly of the Lake County Police Department;
and FBI Special Agent Mark Becker. The government
indicated that Shay would testify “consistent with the
lab reports that have been provided in discovery re-
garding the fingerprint analysis in this case,” i.e., that no
latent fingerprints of value where discovered on the
physical evidence recovered from the scene of Winbush’s
arrest. Reilly would testify as a fingerprint expert “about
the difficulties in obtaining latent fingerprints from
different materials and surfaces.” And Becker would
testify as an expert regarding the “practices, methods
and structure of narcotics trafficking.”
At the final pretrial conference on November 2, 2007,
the government and Winbush informed the magistrate
judge that they would stipulate to Shay’s testimony. The
government also discussed the other expert testimony,
and Winbush informed the magistrate judge that he
would present no expert witnesses at trial.
On November 8, six days after the pretrial conference
and only five days before trial, Winbush filed five addi-
tional motions. Among these were a Motion for Finger-
print Identification Expert and a Motion to Continue.
Winbush requested a fingerprint expert “to examine the
submitted items of physical evidence, and if no latent
fingerprints are present, to testify as to its meaning.” The
magistrate judge denied this motion, stating that “on the
No. 08-1602 5
Friday before trial in a case that’s been pending for
over two years, the request . . . is just woefully late.” The
magistrate judge also denied Winbush’s Motion to Con-
tinue, and the trial began on November 13, 2007.
At trial, the government introduced testimony from
law enforcement involved in Winbush’s investigation
and arrest, as well as the expert testimony discussed
above. The government read Shay’s stipulated testimony:
that “no latent prints of value were detected” on various
pieces of physical evidence found at the scene of
Winbush’s arrest. The government then called Deputy
Commander Reilly, who explained that the ability to
recover latent prints often depends on a variety of
factors, such as the weather and the surface of the
item, and it would be possible for a person to touch
something and leave no identifiable prints. Reilly stated
that it is “probably more than the norm” to find no identi-
fiable prints on a handgun. Finally, the government
called Special Agent Becker, who testified about the
methods and practices of drug traffickers. Specifically,
Becker, who had no knowledge of the facts of Winbush’s
case, opined that possession of, respectively, 288 grams of
marijuana, 9.5 grams of crack cocaine, and 20.2 grams
of crack cocaine, indicated that the drugs were meant
for distribution rather than personal use.
On November 15, 2007, the jury found Winbush guilty
on all five counts. Prior to sentencing, a probation officer
prepared a presentence investigation report (PSR),
which recommended that Winbush be held accountable
for 288 grams of marijuana and 35.3 grams of crack
6 No. 08-1602
cocaine—the sum of the 5.8 grams he sold to Jones, the
20.2 grams of “Kentucky crack,” and the 9.3 grams of
“Tennessee crack.” The total marijuana equivalent of
the drugs amounted to 402.708 kilograms, which
resulted in a base offense level of twenty-eight. See
United States Sentencing Guidelines Manual (U.S.S.G.)
§ 2D1.1(c)(6).
The probation officer also assigned Winbush eleven
criminal history points, based in part on two prior Indiana
drug convictions. In both instances, Winbush was sen-
tenced to work release: in 1999, he received a one-
year sentence, and in 2001, he received a three-and-one-
half-year sentence. The PSR characterized these as sen-
tences of “imprisonment” under U.S.S.G. § 4A1.1(a)
and (b).
At sentencing, the district court adopted the PSR’s
calculations. Winbush did not object to the quantity of
drugs attributable to him, nor to the criminal history
calculation. The district court assigned a total offense
level of twenty-eight and a criminal history category
of V, resulting in a Guideline range of 130-162
months’ imprisonment. The court sentenced Winbush to
140 months’ imprisonment on the three drug possession
and distribution counts, to run concurrently with a 120-
month sentence for possessing a firearm as a felon.
The court also sentenced Winbush to 84 months’ impris-
onment for possessing a firearm in furtherance of a
drug trafficking offense, to run consecutively with his
other sentences, giving Winbush a total sentence of
224 months.
No. 08-1602 7
Winbush now appeals both his conviction and his
sentence. We find that the district court committed no
error in either stage.
II. A NALYSIS
Winbush raises three issues on appeal: (1) whether the
district court erred by denying his motion to retain a
fingerprint expert; (2) whether the court properly ad-
mitted Agent Becker’s expert testimony; and (3) whether
the court erred in calculating Winbush’s base offense
and criminal history levels. We address each issue sepa-
rately.
A. Fingerprint Expert
On November 8, 2007, five days before his trial was set
to begin, Winbush filed a motion requesting funds for
a fingerprint expert. The magistrate judge denied
Winbush’s motion as untimely, a decision that Winbush
now claims was improper. We review for an abuse of
discretion the district court’s denial of Winbush’s
request for expert services, see United States v. Smith, 502
F.3d 680, 686 (7th Cir. 2007); United States v. Daniels, 64
F.3d 311, 315 (7th Cir. 1995), but we review for clear
error a trial court’s decision that a pretrial motion was
untimely, United States v. Salahuddin, 509 F.3d 858, 860
(7th Cir. 2007). Not only was the court within its au-
thority to deny Winbush’s motion as untimely, but we
find that a fingerprint expert was unnecessary for his
defense.
8 No. 08-1602
1. Timeliness
To say that our trial courts are busy would be an under-
statement; we have frequently used the term “overbur-
dened.” See, e.g., United States v. Stokes, 211 F.3d 1039, 1042
(7th Cir. 2000); United States v. Wilson, 73 F.3d 675, 701 (7th
Cir. 1995) (Coffey, J., dissenting). As a result, “ ‘[d]istrict
court judges, because of the very nature of the duties
and responsibilities accompanying their position, possess
great authority to manage their caseload.’ ” United States
v. Coronado-Navarro, 128 F.3d 568, 572 (7th Cir. 1997)
(quoting United States v. Reed, 2 F.3d 1441, 1447 (7th Cir.
1993)). It is well settled that issues of trial management
are left to the district judge, and “we intervene only
when it is apparent that the judge has acted unreasonably.
The occasions for intervention are rare.” Brooks v. United
States, 64 F.3d 251, 256 (7th Cir. 1995) (quotations omitted).
We first note that the district court had already granted
Winbush significant leeway before he filed five pretrial
motions on November 8, 2007. In his order denying
Winbush’s last Motion to Continue, the magistrate judge
stated that the court had already granted Winbush seven
continuances. The magistrate judge informed Winbush
in its July 12, 2007, order granting an earlier continu-
ance that “no further continuances [will] be granted in
this matter absent extraordinary circumstances.” Never-
theless, the magistrate judge granted another continuance
on October 10, 2007, and set his trial date for November 13.
With this as context, a brief timeline reveals that the
magistrate judge properly deemed Winbush’s motion to
be untimely. On October 3, 2007, the government filed
No. 08-1602 9
its Notice of Expert Witnesses. From then until the pretrial
conference, the parties discussed possible stipulations
regarding the government’s expert witnesses, and at the
pretrial conference on November 2, Winbush agreed to
stipulate to Shay’s testimony. Winbush informed the
court that he would not present any expert testimony.
On the afternoon of Thursday, November 8, only two
business days before his trial was set to commence,2
Winbush filed five motions, including his request for a
fingerprint expert. The district court denied Winbush’s
motions before his trial began on Tuesday, November 13.
Winbush presented no good reason for his delay. On
appeal, he claims that “the timing of [his] motion may
have been a function of his learning, on the eve of trial,
that he would not have the opportunity to cross-examine
Shay, and therefore required his own expert.” But Winbush
stipulated to Shay’s testimony at the pretrial conference
on November 2, something he should not have done if
he wanted to cross-examine Shay. Furthermore,
Winbush’s primary challenge on appeal is that he was
unable to rebut Reilly’s expert testimony, not Shay’s,
which merely stated that he found no fingerprints of value
on the physical evidence. Winbush received notice of
Reilly’s testimony on October 3, more than a month
before he filed his pretrial motions, yet he does not ex-
plain this delay.
Even more astounding is Winbush’s claim that the
government failed to provide adequate notice of the
2
The court was closed for a federal holiday on Monday,
November 12.
10 No. 08-1602
substance of its experts’ testimony; he asserts that it is
unclear from the record at what point the government
knew the results of Shay’s tests. But the government’s
October 3 Notice of Expert Witnesses stated that Shay
would testify “consistent with the lab analysis reports
that have been provided in discovery regarding the finger-
print analysis in this case” (emphasis added). Ac-
cordingly, Winbush had already received the lab reports
revealing that no latent prints of value were found on
the physical evidence. As for Reilly, the government’s
Notice expressly stated that he would testify “about the
difficulties in obtaining latent fingerprints from different
materials and surfaces” (emphasis added). We cannot
fathom why Reilly would need to testify about
such difficulties if Shay had discovered Winbush’s prints
on the evidence. The record is clear that Winbush re-
ceived adequate notice of the government’s proposed
expert testimony on October 3.
Winbush had ample time between October 3 and Novem-
ber 8 to request funding for a fingerprint expert. We
have no difficulty determining that the magistrate judge
properly characterized his motion as “woefully late.” But,
even if it were timely, his motion faced a much higher
hurdle.
2. Necessity of a Fingerprint Expert
In his motion for expert services, Winbush claimed that
a fingerprint expert was necessary to examine the
physical evidence, and, “if no latent fingerprints are
present, to testify as to its meaning.” On appeal, he
asserts that, without such assistance, he was deprived
No. 08-1602 11
of “the opportunity to present his own interpretation of
the absence of fingerprints on the evidence.” Winbush’s
“interpretation” is quite simple: one reason that the
government found no fingerprints on the evidence
could be that he never touched it. But in this case an
expert witness is not necessary to explain such an
obvious possibility.
Under the Criminal Justice Act, an indigent defendant
may request that the court provide him access to
expert services that are “necessary for adequate represen-
tation.” 18 U.S.C. § 3006A(e)(1). An expert’s services
are typically necessary if “ ‘a reasonable attorney would
engage such services for a client having the independent
financial means to pay for them.’ ” Smith, 502 F.3d at
686 (quoting United States v. Cravens, 275 F.3d 637, 639
(7th Cir. 2001)). We have recognized, however, that this
standard, if applied too literally, may require the gov-
ernment “to finance a ‘fishing expedition.’ ” United States
v. King, 356 F.3d 774, 778 (7th Cir. 2004); see also Smith,
502 F.3d at 686. Consequently, a district court should
satisfy itself that the defendant has a plausible defense
before granting a request for expert assistance. Smith, 502
F.3d at 686; King, 356 F.3d at 778; United States v. Alden, 767
F.2d 314, 318-19 (7th Cir. 1984).
Given the facts of this case, the district court did not
abuse its discretion in denying Winbush’s request for a
fingerprint expert. Winbush had no plausible defense
that would have rendered such an expert necessary.
The evidence against him was overwhelming, and he
needed no expert to explain that the absence of finger-
12 No. 08-1602
prints on the physical evidence could mean that he never
touched that evidence. Not only is such a conclusion
obvious, but Winbush could easily have elicited this
information during Reilly’s cross-examination. Indeed,
Winbush’s counsel asked Reilly about each piece of
evidence and whether Reilly thought the absence of
fingerprints was unusual.
Winbush also claims that the government’s
case “rest[ed] heavily on a theory most competently
addressed by expert testimony,” citing United States v.
Hardin, 437 F.3d 463, 468 (5th Cir. 2006). We disagree.
Although the presence of fingerprints is often central to
a defendant’s conviction, see, e.g., United States v.
Patterson, 724 F.2d 1128, 1130-31 (5th Cir. 1984), in this
case Reilly’s testimony explained the absence of finger-
prints. This testimony was meant to overcome a fact
favorable to Winbush and was in no way the crux of the
government’s case—a case that rested heavily on over-
whelming evidence of Winbush’s guilt, including testi-
mony from multiple eyewitnesses and a glut of physical
evidence found at the scene of Winbush’s attempt to
flee from police.
Finally, contrary to Winbush’s argument, 18 U.S.C.
§ 3006A(e) did not require the district court to conduct an
ex parte hearing before denying his motion. A district
judge need not conduct such a hearing when the out-
come is readily apparent. See United States v. Daniels,
64 F.3d 311, 315 (7th Cir. 1995) (“A defendant is not
entitled to a hearing when he does not make even the
barest of cases that an expert is necessary to his defense.”).
No. 08-1602 13
Winbush never explained why expert analysis of the
absence of fingerprints was necessary, and the
magistrate judge could have easily determined that it
was not. We find no error in the denial of Winbush’s
motion.
B. Special Agent Becker’s Expert Testimony
Next, Winbush asserts that the district court improperly
admitted expert testimony from Special Agent Mark
Becker. Winbush did not object to Becker’s testimony
at trial, and we therefore review the district court’s ad-
mission of his testimony for plain error.3 See United
States v. Recendiz, 557 F.3d 511, 522 (7th Cir. 2009). We will
reverse only if the error compromised the defendant’s
substantial rights and seriously affected the fairness,
integrity, or public reputation of judicial proceedings.
Blount, 502 F.3d at 678.
3
Winbush claims that he preserved his objection by filing a
motion in limine to preclude testimony regarding his mental
state, and thus our review should be for an abuse of discretion.
See United States v. Lee, 558 F.3d 638, 648 n.4 (7th Cir. 2009). The
district judge granted his motion, stating that the govern-
ment’s expert could not testify that Winbush actually
intended to distribute illegal drugs, but he could testify gener-
ally about methods of operations in drug cases. Winbush now
challenges Becker’s testimony on grounds not raised in his
motion in limine, and he therefore failed to preserve his ob-
jection. See United States v. Blount, 502 F.3d 674, 677-78 (7th Cir.
2007). Any further discussion is pointless, however, because
Winbush’s argument fails under either standard of review.
14 No. 08-1602
The government offered Becker’s testimony to explain
the practices and methods of drug trafficking, including
the tools that drug dealers often use and the
quantity, purity, and street value of illegal drugs
typically possessed for distribution rather than indi-
vidual use. Winbush argues that Becker’s testimony
violated Federal Rules of Evidence 702 and 704(b) because
it contained irrelevant observations of drug dealer behav-
ior and spoke to Winbush’s actual intent to distribute
narcotics. Because Becker’s testimony was the only evi-
dence of Winbush’s mental state, he claims that the error
in admitting it was prejudicial and now warrants rever-
sal. We disagree.
1. Federal Rule of Evidence 702
Winbush’s first challenge is that Agent Becker testified
about attributes of drug trafficking that were ir-
relevant to his alleged conduct. Under Federal Rule of
Evidence 702, a court may admit expert testimony if the
witness is qualified and the testimony would be helpful
to the trier of fact.4 Our court has long recognized
that testimony regarding the methods used by drug
dealers is helpful to the jury and therefore a proper
subject of expert testimony. See United States v. Avila, 557
F.3d 809, 820 (7th Cir. 2009); United States v. Foster, 939
F.2d 445, 451 & n.6 (7th Cir. 1991) (collecting cases).
4
Winbush does not challenge Agent Becker’s qualifications.
We therefore focus solely on whether his testimony was
helpful to the jury.
No. 08-1602 15
We have noted that “it is ‘still a reasonable assumption
that jurors are not well versed in the behavior of drug
dealers,’ ” United States v. Upton, 512 F.3d 394, 401 (7th Cir.
2008) (quoting Foster, 939 F.2d at 452), and expert testi-
mony is helpful in explaining why seemingly innocent
activity may be significant in the context of a drug trans-
action, see United States v. de Soto, 885 F.2d 354, 360-61
(7th Cir. 1989).
We find no error in admitting Becker’s testimony.
Winbush is correct that not every piece of Becker’s testi-
mony applied directly to this case. But Becker’s com-
ments were general in nature, and he expressly stated
during both direct and cross-examination that he knew
nothing about Winbush’s case. Furthermore, much of
Becker’s testimony that Winbush now challenges came
in response to the government’s foundational questions
regarding his professional background and experience.
For instance, he testified that he worked with a task
force focused on stemming violent and gang-related
crime in Gary. Contrary to Winbush’s claims, this testi-
mony came nowhere near the level of “gang affiliation
evidence” that we found improper in United States v.
Irvin, 87 F.3d 860, 864 (7th Cir. 1996), in which the gov-
ernment introduced evidence that the defendant was a
member of a motorcycle gang to show that he was more
likely to have distributed drugs. Here, Becker never
testified that Winbush was a member of a gang, nor did
his testimony suggest it. In fact, he never mentioned
Winbush’s name during his testimony.
Likewise, Becker’s testimony regarding crack cocaine
production assisted the jury in understanding the
16 No. 08-1602
typical distinctions between a drug distributor and one
who possesses crack for personal use. The government
asked Becker directly, “What types of things do you
look at when you go into a search or you arrest some-
body and you find some controlled substances? What
do you look at to determine whether that person . . . is
dealing in that narcotic or merely possessing it for
their personal use?” Becker replied by describing
evidence that typically indicates a drug dealer, rather
than a user: plastic baggies, scales, transaction logs,
firearms, and ammunition. Becker also later explained
that police often find baking soda and large amounts
of cash.
Of course, we recognize the potential danger of undue
prejudice that can result from expert testimony about
the practices of drug dealers, see Foster, 939 F.2d at 452, but
our independent review of the record assures us that
Becker’s testimony stayed within the bounds of Rule
702. And even if Becker strayed slightly into forbidden
territory, any error in admitting irrelevant testimony
did not prejudice Winbush. As we have already noted,
the evidence of Winbush’s guilt was overwhelming.
2. Federal Rule of Evidence 704(b)
Winbush’s argument that Becker’s testimony violated
Rule 704(b) suffers a similar fate. He argues that the
testimony’s “extreme over-inclusiveness was, for all
intents and purposes, tantamount to stating an opinion
or inference that Winbush” intended to distribute narcot-
ics. We find nothing in Becker’s testimony to support
such a conclusion.
No. 08-1602 17
For Winbush’s charged offenses under 21 U.S.C.
§ 841(a)(1), the government bore the burden of proving
that he intended to distribute controlled substances.
Direct evidence of such intent is predictably rare, so the
government often employs expert testimony. Foster, 939
F.2d at 451 & n.6 (collecting cases and noting that our
circuit “is quite familiar with the use during trial of
expert testimony as to the methods used by drug deal-
ers”). But Rule 704(b) imposes limits on expert testimony
regarding a defendant’s mental state—an expert may not
testify to “an opinion or inference as to whether the
defendant did or did not have the mental state or con-
dition constituting an element of the crime charged.”
Fed. R. Evid. 704(b); see also United States v. Mancillas,
183 F.3d 682, 705 (7th Cir. 1999).
Although an expert may not testify or opine that the
defendant actually possessed the requisite mental state,
he may testify in general terms about facts or circum-
stances from which a jury might infer that the defendant
intended to distribute drugs. See Mancillas, 183 F.3d at
706; United States v. Lipscomb, 14 F.3d 1236, 1239-40 (7th
Cir. 1994); United States v. Brown, 7 F.3d 648, 654 (7th
Cir. 1993). Such testimony is properly admitted as long
as it is clear “ ‘that the opinion is based on the expert’s
knowledge of common criminal practices, and not on
some special knowledge of the defendant’s mental pro-
cesses.’ ” Mancillas, 183 F.3d at 706 (quoting Lipscomb,
14 F.3d at 1242). An important factor in determining
whether an expert violated Rule 704(b) is the degree to
which the expert refers to the specific defendant’s
intent, id., and expert testimony is proper as long as it
18 No. 08-1602
leaves for the jury the ultimate conclusion that the defen-
dant intended to distribute controlled substances, see
Lipscomb, 14 F.3d at 1240; Brown, 7 F.3d at 654.
Becker’s testimony did not violate Rule 704(b). Most
importantly, Becker never mentioned, or even alluded
to, Winbush’s actual intent to distribute drugs. To the
contrary, he told the jury on multiple occasions that he
was unfamiliar with this case. His testimony focused
exclusively on his knowledge of common criminal prac-
tices, and he addressed facts presented by the govern-
ment that helped the jury distinguish a drug distributor
from a user. For example, he testified, without reference
to Winbush, that possession of 9.5 grams of crack cocaine
suggests an intent to distribute the drugs: “[I]n my ex-
perience, I’ve never come across a user on the street who
had almost ten grams of crack cocaine in their possession.
That, from my perspective, would be someone who we
would want to investigate as a trafficker.” When asked
about possession of 20.2 grams of crack, packaged in fifty-
two separate bags, he replied, “[T]hat is distribution
level. That is not user level.” We have upheld the use of
hypothetical drug quantities during similar expert testi-
mony, see, e.g., Mancillas, 183 F.3d at 705-06 (upholding
statement by expert witness that 400 grams of marijuana,
found in a plastic bag, was likely being held for distribu-
tion), and we see no error in Becker’s testimony.
Even Winbush cannot point to a direct statement of
his intent in Becker’s testimony; instead, he argues that
Becker’s testimony “created the impression that Winbush
was a drug dealer.” Of course Becker’s testimony created
No. 08-1602 19
the impression that Winbush was a drug dealer. There is
nothing improper about creating such an impression,
and that is precisely why the government elicited this
testimony. Becker stopped short, however, of crossing
the line that Rule 704(b) draws, and the court properly
admitted the testimony.
C. Sentencing Challenges
Finally, Winbush challenges his sentence on two separate
grounds: that the district court improperly calculated
(1) the quantities of drugs attributable to him, and
(2) his criminal history level. We review the court’s
factual determinations, including the amount of drugs
attributable to the defendant, for clear error. United States
v. Strode, 552 F.3d 630, 633 (7th Cir. 2009); United States
v. Krasinski, 545 F.3d 546, 551 (7th Cir. 2008). A factual
finding is clearly erroneous if “we are left with a definite
and firm conviction that a mistake has been committed.”
United States v. Rollins, 544 F.3d 820, 838 (7th Cir. 2008)
(quotations omitted). We review de novo the district
court’s application of the United States Sentencing Guide-
lines. Id. at 837. We find both of Winbush’s arguments
unpersuasive.
1. Drug Quantity Calculation
We can dismiss Winbush’s first argument relatively
quickly. The district court accepted the PSR’s recom-
mendation that Winbush be held responsible for 288 grams
of marijuana and 35.3 net grams of cocaine base—the sum
20 No. 08-1602
of the 9.3 grams of “Tennessee crack,” the 20.2 grams of
“Kentucky crack,” and the 5.8 grams of crack he sold to
Jones. Winbush claims that the district court erred by
including in his base offense level the 9.3 grams of “Ten-
nessee crack” and the 288 grams of marijuana because
these drugs involved unrelated, uncharged conduct. See
U.S.S.G. § 1B1.3(a)(2).
First, Winbush did not object to the probation
officer’s drug quantity calculations, nor did he chal-
lenge the base offense level imposed by the district
court. In the absence of an objection, a district court may
typically rely on a probation officer’s recommendations
in a PSR. See United States v. Artley, 489 F.3d 813, 821
(7th Cir. 2007) (“When the court relies on information
contained in the PSR at sentencing, it is the defendant’s
burden to show that the PSR is inaccurate or unreliable.
When a defendant has failed to produce any evidence
calling the report’s accuracy into question, a district
court may rely entirely on the PSR.” (citations and quota-
tions omitted)).
Second, Winbush characterizes his challenge as one
involving “uncharged or unconvicted relevant conduct,”
but, unlike the cases he cites, he was charged for possess-
ing, with the intent to distribute, the drugs that formed
the basis of his sentence. Specifically, the indictment
included a separate count charging Winbush with possess-
ing with the intent to distribute marijuana, which covers
the 288 grams the district court attributed to him. The
indictment also charged him with possessing with the
intent to distribute more than five grams of crack cocaine,
No. 08-1602 21
which presumably included both the “Tennessee crack”
and the “Kentucky crack.” The government and its wit-
nesses referred to both drug quantities and their aggre-
gated weight during the trial and closing argument.
Winbush never objected to these comments, nor did he
present evidence or argue that the quantities were
separate from those included in the indictment.
Winbush now argues that either quantity of crack, alone,
would have satisfied the charge in the indictment, and it
is therefore impossible to determine which amount
formed the basis of his conviction. Even if we accept his
contention, however, the “Tennessee crack” would have
qualified as related conduct. See U.S.S.G. § 1B1.3(a)(2). In
sentencing, the district court may consider a defendant’s
conduct that was “part of the same course of conduct or
common scheme or plan as the offense of conviction.” Id.
An offense is part of the “same course of conduct” as
another if it was “sufficiently connected or related to [the]
other as to warrant the conclusion that they are part of a
single episode, spree, or ongoing series of offenses.”
U.S.S.G. § 1B1.3(a)(2) cmt. n.9. Although we typically
require the district court to state its reasons for finding
that unconvicted activities were related to the offense
of conviction, we have upheld a court’s decision to
include unconvicted conduct even without express find-
ings when “it is clear that the district court took into
consideration and adopted the facts contained in the
presentence report.” United States v. Panaigua-Verdugo,
537 F.3d 722, 726 (7th Cir. 2008).
It was clear from the facts of this case, including those
articulated in the PSR and adopted by the district court,
22 No. 08-1602
that possession of the “Tennessee crack” was “part of the
same course of conduct” as Winbush’s offenses of con-
viction. Police found the “Tennessee crack” in the
same vicinity as the other evidence in this case; it was
packaged in five separate plastic bags; and Winbush
presented no evidence that it was not intended for distri-
bution or was otherwise separate from the rest of the
drugs. We find no clear error in the district court’s cal-
culation of Winbush’s base offense level.
2. Criminal History Calculation
Winbush also claims that the district court erred in
calculating his criminal history level. The court adopted
the probation officer’s recommendation that Winbush
receive eleven criminal history points. This included
two points for a 1999 state conviction for possession of
cocaine, for which Winbush was sentenced to one year
of work release, and three points for a 2001 state con-
viction for possession of controlled substances, for which
he was sentenced to three-and-one-half years of work
release. Winbush claims that neither of the prior work
release sentences was “imprisonment” under U.S.S.G.
§ 4A1.1.
The Sentencing Guidelines assign three criminal
history points for a prior sentence of imprisonment ex-
ceeding one year and one month, U.S.S.G. § 4A1.1(a),
two points for a prior sentence of imprisonment of at
least sixty days, id. § 4A1.1(b), and only one point for
any other prior sentence, id. § 4A1.1(c). The Guidelines
do not provide a detailed definition of “imprisonment,”
No. 08-1602 23
stating only that it means “a sentence of incarceration.”
Id. § 4A1.2(b)(1).
We have noted that an important factor in deter-
mining whether a sentence is one “of imprisonment” is the
extent to which the defendant was physically confined.
See United States v. Timbrook, 290 F.3d 957, 959 (7th Cir.
2002); see also United States v. Morgan, 390 F.3d 1072, 1074
(8th Cir. 2004) (“Physical confinement without being free
to leave is a key factor in determining whether a sen-
tence is one of incarceration.”). In Timbrook, we held that
a prior sentence of work release in a county jail was a
“sentence of imprisonment” under § 4A1.1. 290 F.3d at
959. We noted that the defendant was sentenced to a
secure facility and locked up when not at work, unlike
time served at a community treatment center or a half-
way house. Id. at 960 (“A community confinement center
or a halfway house is not a ‘secure jail facility’ almost
by definition. ‘Houses’ and ‘Treatment Centers’ are not
supposed to be jails.”). Because work release in a
county jail “is more akin to confinement in a conven-
tional prison facility,” we concluded that it qualified as
a sentence of imprisonment. Id. Ours and other courts
have held that sentences similar to work release qualify
as “imprisonment” under § 4A1.1. See Morgan, 390 F.3d
at 1074 (“violator’s facility”); United States v. Gajdik, 292
F.3d 555, 558 (7th Cir. 2002) (“boot-camp style program”);
United States v. Brooks, 166 F.3d 723, 726 (5th Cir. 1999)
(boot camp); United States v. Allen, 64 F.3d 411, 412-13
(8th Cir. 1995) (juvenile training school); United States v.
Ruffin, 40 F.3d 1296, 1299 (D.C. Cir. 1994) (one-year work
release).
24 No. 08-1602
As with his base offense level, Winbush failed to
object to both the probation officer’s calculation of his
criminal history level and the district court’s adoption of
it. By raising this issue for the first time on appeal, the
district court had no occasion to examine the conditions
of Winbush’s prior sentences, and Winbush faces an
uphill battle to demonstrate that the court clearly erred
by characterizing his sentences as “imprisonment.”
In 1999, Winbush was sentenced to one year of work
release with the Lake County Sheriff’s Work Release
Program. Winbush relies on a description of the Program
found on Lake County’s website and a newspaper
article indicating that the Program is housed in a former
hospital—neither of which are in the record itself. This
is well short of what would be necessary to estab-
lish that a defendant sentenced to this Program is free
to leave, that the facility is not secure, or that the Program
is more akin to a halfway house than a prison.5 Winbush
has not established that the district court clearly erred
by assigning two points for his 1999 sentence.
5
Furthermore, the government refers us to the website of
the Lake County Sheriff’s Department. See
http://www.lakecountysheriff.com. The site states that the
Program was established “to help reduce the population of
the Lake County Jail and offset the cost of incarceration by
placing non-violent, low-risk offenders in a secured work
release facility.” Id. (follow “Corrections/Jail” hyperlink; then
follow “Work Release” hyperlink). Only low-risk offenders
“sentenced to the Lake County Jail” and who are deemed
eligible may participate. Id.
No. 08-1602 25
In 2001, Winbush was sentenced to three-and-one-half
years with the Indiana Department of Corrections Work
Release Program. As with his 1999 sentence, Winbush
has failed to produce any evidence that this Program
is not secure, that he is free to leave, or that it is other-
wise similar to a halfway house or community treatment
center. Winbush therefore has not shown that the
district court clearly erred by assigning three points for
his 2001 work release sentence with the Indiana Depart-
ment of Corrections.
Because the district court properly calculated Winbush’s
base offense level and his criminal history level, its sen-
tence was proper and must stand.
III. C ONCLUSION
We find no error in Winbush’s conviction or sentence,
and we A FFIRM both.
9-1-09