United States v. Best, Dennis D. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2901
United States of America,
Plaintiff-Appellee,
v.
Dennis D. Best,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 99 CR 189--Rudy Lozano, Judge.
Argued January 22, 2001--Decided May 10, 2001
Before Bauer, Kanne, and Evans, Circuit
Judges.
Bauer, Circuit Judge. Dennis Best asks us
to vacate his conviction for conspiracy
to possess with intent to distribute and
to distribute in excess of five grams of
crack cocaine and to grant him a new
trial. Best argues that the district
court committed reversible error in
admitting evidence of his prior
conviction for possession of crack
cocaine and of various incidents
surrounding the prior offense under Fed.
R. Evid. 404(b). In the alternative, Best
objects to his sentence, contending on
various grounds that the district court
erred in sentencing him as a career
offender. For the reasons set forth
below, we affirm Best’s conviction and
sentence.
BACKGROUND
On December 3, 1999, the Gary Response
Investigative Team ("GRIT"), led by the
FBI, set up surveillance on a house
located at 798 Porter Street in Gary,
Indiana. FBI agent Wallace observed
several individuals go in the house and
leave after a short stay, which suggested
to him the possibility that these visits
were drug deals. After observing two men
(later identified as Randle Conley and
Darryl Hoover) drive off following one
such visit, GRIT officers followed them
and stopped their car a mile or two from
the house. GRIT Officer Jelks observed
what appeared to be crack cocaine in
plastic baggies on the front seat of the
car, and Conley admitted to buying the
crack. Officer Jelks believed that Eddie
Nalls, a criminal suspect for whom there
was an outstanding arrest warrant, might
be in the house. Jelks showed Conley a
picture of Nalls, and Conley identified
Nalls as the person who sold him the
crack. Jelks then obtained a telephonic
search warrant for the house.
Meanwhile, continuing his surveillance
of the house, Agent Wallace observed a
blue Dodge Intrepid pull up to the house,
and saw a number of men get out of the
car and enter the house. The men returned
to the car and drove off at approximately
5:15 p.m., and were soon stopped by GRIT
officers. Four men were in the car: Best,
Damien Williams, Donte Palm, and Conrad
Richardson; no drugs were found in the
car. All four were taken to the GRIT
office.
The GRIT officers later searched the
house pursuant to the warrant. Upon
entering, they encountered Marcus
Gardner, who was there alone. The agents
noted that there was no stove or
refrigerator in the kitchen, and that the
house was without running water. Under
the cushion of a couch in the living
room, the agents found 21 knotted plastic
bags ("dime bags") containing a total of
8.4 grams of cocaine base, and a total of
$343.00 on the couch and on a nearby end
table. Also in the living room, the
agents found small plastic bags of the
type used to package crack cocaine. In a
bedroom, the agents found a utility bill
for the house in the name of Damien
Williams. Among other papers in a closet,
the agents found two notices of Gary City
Court appearances for Dennis Best.
The agents arrested Gardner, who
cooperated by providing statements about
his drug-related activities in the house,
including incriminating statements about
Best./1 At trial, Gardner testified
that he had known Best for about a month
before his arrest and that he was
introduced to Best by a man who suggested
that Gardner could sell drugs for Best
from Best’s house. Two weeks before his
arrest, Gardner approached Best and asked
Best about selling drugs. For one day
Gardner watched Best sell drugs to 19
customers and Gardner tried to remember
their faces. Gardner then began selling
crack at the house, working the 4:00 p.m.
to 12:00 midnight shift. (Gardner claimed
that Best worked the morning shift).
Gardner sold about 50 dime bags of crack
in both his first and second weeks.
Gardner testified that the crack he sold
was in the house under a pillow on the
couch, and that he placed the money that
he received on the table in the living
room. He also testified that he did not
have a key to the house, but that Best
and his brother Jason had keys. Gardner
testified that when he arrived at the
house at about 4:30 on the day of his
arrest, Best was in the house with
Williams, Palm, and Conrad, playing a
video game, and that the four left the
house to get something to eat shortly
thereafter.
Best was interviewed at the GRIT office.
Agent Wallace gave Best an advice of
rights form, and left him alone in a room
to read it. During the interview, Best
gave varying accounts of his relationship
to the house and of his activities there.
When FBI Agent Becker opened the lock
which he had removed from the front door
of the house with a key that was found on
Best (and which Best admitted was his),
Best opined that just because he had a
key that opened the door did not mean
that he lived there. When Becker asked
Best who gave him the key, Best said he
did not know. Best initially told Wallace
that he had the key because he had lived
at the house for a day or two before
moving in with his daughter’s mother.
However, Best later told Becker that he
had been to the house only five times,
and that two of those times were on the
day of his arrest.
Investigation revealed that the house
was owned by Danny Crossley. Crossley’s
mother Lucille Crossley testified that
she rented the house in October, 1999, to
a young man representing himself as Donte
Johnson. She stated that the man signed
the lease and provided a social security
number. She identified Best in court as
the man who had signed the lease.
During the trial, the government called
Troy Campbell, a detective with the Gary
Police Department, to testify about his
prior encounters with Best. The district
court permitted Campbell’s testimony over
Best’s continuing objection, finding it
probative of Best’s intent, knowledge,
and absence of mistake, and therefore
admissible under Fed. R. Evid. 404(b).
Campbell gave the following testimony: On
November 21, 1997, he and other officers
pursued a man named Garrett Smith, who
was the subject of a homicide warrant,
into a house at 532 Hovey Street in Gary.
When they entered the house, Best, Smith,
and another man ran out of the bedroom
into the dining room. In the bedroom, the
police found a baggie which contained
15.37 grams of crack in 10 knotted
baggies and 6.16 grams of crack in 33
small Ziploc bags. The officers also
found an additional 14 grams of crack
contained in four knotted plastic bags.
The officers found two electronic scales
and small empty Ziploc bags in the dining
room, and a large quantity of cash in the
bedroom. In addition, Campbell testified
that the officers found rounds of
ammunition and magazines for guns in the
house. Best was found to be carrying over
$1000 at the time of the arrest.
Moreover, the house on Hovey Street
(which was about three blocks from the
house on Porter Street) was rented in
Best’s name. Best served prison time for
these charges.
The government also called Crystal
Sturgeon, a forensic drug chemist for the
Indiana State Police, to testify as to
the results of chemical tests that she
performed on the cocaine seized at the
Hovey Street house on November 21, 1997.
Over Best’s continuing objection, the
district court allowed Sturgeon’s
testimony, and allowed the government to
introduce the actual crack seized during
the November 21, 1997 incident. The crack
was introduced via Exhibits 33 and 34.
Sturgeon testified as to the net weight
of the cocaine found in each Exhibit.
At trial, Best denied conspiring to
distribute cocaine or possessing cocaine
with intent to distribute. He testified
that he went to the house on Porter
Street to party with his friend Conrad
Richardson on Richardson’s birthday. He
said that he arrived there at about
11:30, at which time Richardson, Palm,
Williams, and Nalls were already there,
and that he eventually became intoxicated
and fell asleep./2 Best asserted that
he awoke sometime around 4:30 or 5:00,
and that he and the others left the house
to get something to eat when they were
apprehended by the police. Best testified
that he told the officers that he did not
know anything about what was going on at
the house. While he admitted to knowing
what a dime bag of crack cocaine was,
Best claimed that he did not see anyone
selling crack in the house at Porter
Street, and he denied knowing anything
about crack being sold at the house. He
also denied signing the lease for the
house, testifying that he never saw
Lucille Crossley before she testified in
court. Finally, Best stated that he had
never seen Conley before he testified in
court.
Best admitted pleading guilty to
possession of the drugs found at 532
Hovey Street in 1997. In addition, he
testified that he pled guilty to two
other felony charges: battery with a
deadly weapon; and possession of a sawed-
off shotgun. He stated that he served
time in prison for these convictions.
The jury found Best guilty of conspiracy
to possess with intent to distribute in
excess of five grams of crack cocaine,
but acquitted him of the charge of
possession with intent to distribute in
excess of five grams of crack cocaine.
Best’s sentencing hearing was held on
July 11, 2000. The Revised Pre-Sentence
Investigation Report determined that
Best’s criminal history category was five
and his total offense level was 32, and
calculated his guideline imprisonment
range to be between 188 and 235 months.
The government objected to the report’s
criminal history determination,
maintaining that Best qualified as a
"career offender" under U.S.S.G. sec.
4B1.1 because he had two qualifying prior
felony convictions, one for battery with
a deadly weapon, and one for dealing a
sawed-off shotgun. The district court
determined Best to be a career offender
under U.S.S.G. sec. 4B1.1, and sentenced
Best to 360 months imprisonment.
Best appeals both his conviction and
sentence. He argues that the district
court erred in allowing the admission of
the other crimes evidence under Fed. R.
Evid. 404(b), and that this error entitles
him to a reversal of his conviction and a
new trial. In the alternative, Best
disputes the district court’s finding
that he qualified as a "career offender,"
and urges us to vacate his sentence and
to remand for resentencing.
DISCUSSION
A) Prior bad acts under Fed. R. Evid.
404(b)
The district court found the testimony
of Detective Campbell and of forensic
chemist Crystal Sturgeon regarding Best’s
prior drug-related activity and
conviction admissible under Fed. R. Evid.
404(b), concluding that the evidence was
probative of Best’s intent, knowledge,
and absence of mistake with respect to
the charged offense, and that the
probative value of the evidence was not
substantially outweighed by the danger of
unfair prejudice. We review a district
court’s decision to admit evidence under
Rule 404(b) for abuse of discretion. See
United States v. Williams, 238 F.3d 871,
874 (7th Cir. 2001) (citation omitted).
Best objects to the admission of this
testimony on two grounds. First, he
maintains that the evidence was not
admissible to show his intent or absence
of mistake with respect to the charged
offense because he did not put his intent
at issue. Second, he asserts that some of
the evidence admitted through Campbell--
namely, that Campbell found Best in the
Hovey Street house after pursuing a
murder suspect into the house, and that
he discovered ammunition and cartridges
for guns there--were not sufficiently
relevant or similar to Best’s possession
of drugs on the later occasion to be
admissible under 404(b), and therefore
amounted to impermissible character
evidence that unduly prejudiced the jury
against Best. We find both arguments
unavailing.
Under Rule 404(b), evidence of prior
convictions or of other misconduct is not
admissible to show that a defendant has a
propensity to commit crime and that he
acted in conformity with that propensity
on the occasion in question. See United
States v. Wash, 231 F.3d 366, 370 (7th
Cir. 2001) (citation omitted); United
States v. Lewis, 110 F.3d 417, 419 (7th
Cir. 1997) (citation omitted). However,
such evidence "may be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, or identity." Wash, 231 F.3d
at 370 (citation omitted); Lewis, 110
F.3d at 419. In determining the
admissibility of evidence of prior acts
under 404(b), we employ a four-part test:
(1) the evidence [must be] directed
toward a matter in issue other than the
defendant’s propensity to commit the
crime charged; (2) the evidence [must]
show[ ] that the other act is similar
enough and close enough in time to be
relevant to the matter in issue; (3) the
evidence [must be] sufficient to support
a jury finding that the defendant
committed the similar act; and (4) the
probative value of the evidence [must]
not [be] substantially outweighed by the
danger of unfair prejudice.
Williams, 238 F.3d at 874 (citation
omitted).
Applying this test, we find the facts
that Best was found in the house on Hovey
Street with distribution amounts of crack
cocaine, that he had rented the house,
and that he was subsequently convicted of
possessing crack admissible under Rule
404(b). First, this evidence was
probative of a matter in issue other than
Best’s propensity to commit the crimes
charged. Specifically, it tended to
establish Best’s intent to commit the
charged crimes. We have repeatedly held
that when a defendant is charged with a
specific intent crime, the government may
introduce evidence of other acts to prove
intent. See, e.g., United States v.
Denberg, 212 F.3d 987, 993 (7th Cir.
2000) (citations omitted); Lewis, 110
F.3d at 420; United States v. Chaimson,
760 F.2d 798, 806 (7th Cir. 1985). This
is so because "intent is a required
element of [a specific intent crime], and
the Government must prove each and every
element of the crime charged beyond a
reasonable doubt," Chaimson, 760 F.2d at
806, and therefore the defendant’s intent
is necessarily at issue in any
prosecution for a specific intent crime.
See United States v. Liefer, 778 F.2d
1236, 1242-43 (7th Cir. 1985). The crimes
with which Best was charged--conspiracy
to possess with intent to distribute and
to distribute in excess of five grams of
crack cocaine in violation of 21 U.S.C.
sec.sec. 846 and 841(a)(1), and
possession with intent to distribute in
excess of five grams of crack cocaine in
violation of 21 U.S.C. sec. 841(a)(1)--
are both specific intent crimes. See
Lewis, 110 F.3d at 420; Wash, 231 F.3d at
370. Therefore, in this case, the
government was entitled to present
evidence of prior acts relevant and
probative of Best’s intent to commit the
charged crimes. For example, to prove
that Best intended to distribute the
crack he possessed, the government could
introduce evidence of Best’s prior acts
of drug trafficking, see United States v.
Allison, 120 F.3d 71, 74-75 (7th Cir.
1997), or of his previous possession of
distribution amounts of cocaine, see
Wash, 231 F.3d at 370-71, provided that
such evidence satisfies the other
conditions of admissibility.
Best acknowledges this general rule, but
argues that such evidence is inadmissible
to show his intent in this case because
he did not dispute the issue of intent.
Unfortunately for Best, we have rejected
this same argument on several occasions.
See, e.g., United States v. Brown, 34
F.3d 569, 573 (7th Cir. 1994) (ruling
that "a defendant cannot keep 404(b)
evidence out of his case by denying all
charges"); United States v. Mazzanti, 888
F.2d 1165, 1171 (7th Cir. 1989) (holding
that evidence of other acts was
admissible under Rule 404(b) to show the
defendant’s intent in a prosecution for a
specific intent crime in order to
overcome the defendant’s blanket denial
of wrongdoing which "was meant to negate
any evidence of intent"); United States
v. Monzon, 869 F.2d 338, 344 (7th Cir.
1989) (citations omitted) (holding other
act evidence admissible, and ruling that
"[i]n cases involving specific intent
crimes, intent is automatically in issue,
regardless of whether the Defendant has
made intent an issue in the case");
United States v. Harrod, 856 F.2d 996,
1001 (7th Cir. 1988) (citation and
internal quotation omitted) (holding
other act evidence admissible, and ruling
that "the [defendant] cannot remove
intent as an element of the Government’s
proof by merely raising as a defense that
he did not participate in the crime
charged"); United States v. Draiman, 784
F.2d 248, 254 (7th Cir. 1986); Liefer,
778 F.2d at 1242-43; Chaimson, 760 F.2d
at 805-06; United States v. Weidman, 572
F.2d 1199, 1202-03 (7th Cir. 1978). We
find that the testimony concerning Best’s
prior possession of distribution-level
amounts of cocaine at a house that he had
rented, as well as his prior conviction
for such possession, were probative of
his intent to commit both of the crimes
charged.
Moreover, the evidence was admissible to
show Best’s knowledge and lack of
mistake. While Best admitted being
present in the Porter Street house for
several hours, he denied knowing that
crack was being sold there. The details
of Best’s prior possession of crack at
the house that he had rented on Hovey
Street were properly admitted to show
that Best had knowledge of the presence
and distribution of crack in the Porter
Street house (by inviting the inference
that Best was familiar with the practices
of crack distribution from a crack
house), and to rebut any suggestion that
Best’s presence in the crack house was
the result of an innocent mistake./3
See United States v. Tylkowski, 9 F.3d
1255, 1262 (7th Cir. 1993) ("Evidence of
another crime which tends to undermine
the defendant’s innocent explanations for
his act will be admitted.") (citation and
internal quotation omitted). Therefore,
we find that the evidence was offered to
prove something other than Best’s
propensity to commit the crimes charged,
thereby satisfying the first prong of the
four-part test for admissibility of other
act evidence under Rule 404(b).
We find that the three remaining prongs
are satisfied as well. The prior cocaine
offense was identical to one of the
offenses charged in this case, and it
occurred only a few blocks from the
Porter Street house, making it
sufficiently similar to the charged
offense to be relevant. Furthermore, the
events at the Hovey Street house
transpired slightly over two years before
the instant offenses, and therefore were
sufficiently close in time to be
relevant. See, e.g., United States v.
Tringali, 71 F.3d 1375, 1379 (7th Cir.
1995) (concluding that evidence of
participation in a cocaine conspiracy
nine years earlier was admissible to show
present knowledge and intent to
distribute). In addition, the prior
offenses were sufficiently proven to be
admissible. Best acknowledged the prior
offenses on cross-examination, and in any
event his prior conviction establishes
that he possessed cocaine previously. See
Lewis, 110 F.3d at 420. Moreover, the
eyewitness testimony of Officer Campbell
was sufficient to establish the
occurrence of any prior events which were
not covered by the conviction. See
Allison, 120 F.3d at 75; United States v.
Kreiser, 15 F.3d 635, 641 (7th Cir.
1994). Finally, we cannot dispute the
district court’s conclusion that the
probative value was not substantially
outweighed by unfair prejudice. We have
already discussed the tendency of the
evidence to prove Best’s intent,
knowledge, and the absence of mistake. By
its very nature, any such probative
evidence will be prejudicial. However, it
will only be excluded if it is unfairly
prejudicial. See United States v. Long,
86 F.3d 81, 86 (7th Cir. 1996) (citation
omitted). This occurs "only if it will
induce the jury to decide the case on an
improper basis, commonly an emotional
one, rather than on the evidence
presented." Id. (quotation and citation
omitted). Best does not demonstrate that
the evidence would induce the jury to
find Best guilty on some improper ground
given the limited purpose for which it
was offered. Moreover, the district court
instructed the jury that they were to
consider the other act evidence only for
the limited purpose of ascertaining
Best’s intent, knowledge, and absence of
mistake, and we have held that similar
limiting instructions "are effective in
reducing or eliminating any possible
unfair prejudice from the introduction of
Rule 404(b) evidence." See Denberg, 212
F.3d at 994 (citations omitted).
The propriety of the district court’s
admission of some of the more
inflammatory (and less obviously
relevant) details surrounding the prior
incident at the Hovey Street house
presents a closer question. The district
court allowed officer Campbell to testify
that he came upon Best in the Hovey
Street house after pursuing a homicide
suspect into the house, and that he saw
gun ammunition and cartridges in the
house. This arguably invited the jury to
infer that Best associated with suspected
murderers and possessed firearms, thereby
potentially raising the specter of unfair
prejudice. While evidence that Best
possessed distribution levels of crack on
a prior occasion is relevant and
admissible to show his intent with
respects to the crimes charged in this
case, it does not necessarily follow that
the admission of other evidence stemming
from the Hovey Street house episode is
similarly relevant and admissible. See
United States v. Johnson, 137 F.3d 970,
975 (7th Cir. 1998) (holding that while
evidence of the defendant’s prior
possession of a distribution-size
quantity of cocaine was admissible to
prove his intent to distribute cocaine on
a later occasion, his possession of a
pistol and his fight with the police on
the earlier occasion "did not help the
jury analyze [his] intent" to commit the
charged offense, and therefore should not
have been admitted). We conclude that the
facts that officer Campbell chased a
murder suspect into the Hovey Street
house and saw gun cartridges and
ammunition were of tenuous relevance to
Best’s intent to commit the charged
offenses and should not have been
admitted.
Nevertheless, the admission of this
evidence was harmless error. Officer
Campbell made only a single reference to
the gun cartridges and ammunition, and
the government did not introduce either
the ammunition or photographs of it.
Moreover, when Best took the stand, the
government impeached him by mentioning
his prior felony convictions for
possession of a sawed-off shotgun and
assault with a deadly weapon which
occurred around the same time as
theincident at the Hovey Street house.
Therefore, the jury would have known that
Best possessed firearms even if
Campbell’s testimony had been stricken.
Thus, considering that Campbell’s brief
reference to gun cartridges and
ammunition was likely to have far less of
an impact on the jury than would his
prior gun-related convictions, it is
extremely doubtful that the jury may have
been more likely to convict Best due to
an emotional reaction to Campbell’s
testimony. Moreover, the other evidence
against Best was compelling. In addition
to Conley’s and Gardner’s testimony that
Best dealt crack out of the house on
Porter Street, Lucille Crossley
identified Best as the man who had leased
the house, Best was found carrying a key
to the house, notices for Best’s court
appearances were found in a closet in the
house, and Best gave the officers
conflicting accounts of his activities in
the house. It seems highly unlikely that
Campbell’s testimony affected the
verdict, especially given the district
court’s limiting instruction regarding
all of the prior act evidence.
B) Whether Best’s prior sentences should
be considered related
Best challenges the district court’s
decision to sentence him as a career
offender under U.S.S.G. sec. 4B1.1.
Thatprovision provides that
[a] defendant is a career offender if (1)
the defendant was at least eighteen years
old at the time the defendant committed
the instant offense of conviction, (2)
the instant offense of conviction is a
felony that is either a crime of violence
or a controlled substance offense, and
(3) the defendant has at least two prior
felony convictions of either a crime of
violence or a controlled substance
offense.
U.S.S.G. sec. 4B1.1. Only certain
convictions may be counted in determining
a defendant’s status as a career
offender. Specifically, U.S.S.G. sec.
4B1.2(c) states that, when counting
convictions for purposes of the "career
offender" provision, the judge must
determine that "at least two of
theaforementioned felony convictions are
counted separately under the provisions
of 4A1.1(a), (b), or (c)." U.S.S.G. sec.
4A1.2(a)(2) provides that "prior
sentences imposed in unrelated cases are
to be counted separately," while "[p]rior
sentences imposed in related cases are to
be treated as one sentence for purposes
of sec. 4A1.1(a), (b), and (c)."
Therefore, whether any two prior
convictions may be counted separately for
purposes of the career offender provision
depends upon whether the sentences
imposed for the convictions were
"related." In determining whether any
particular sentences are "related," we
are guided by Application Note 3 to sec.
4A1.2, which states:
Prior sentences are not considered
related if they were for offenses that
were separated by an intervening arrest
(i.e., the defendant is arrested for the
first offense prior to committing the
second offense). Otherwise, prior
sentences are considered related if they
resulted from offenses that (A) occurred
on the same occasion, (B) were part of a
single common scheme or plan, or (C) were
consolidated for trial or sentencing.
Best concedes that he meets sec. 4B1.1’s
first two definitional criteria of a
career offender, as he was over 18 when
he committed the instant controlled
substance offense. However, he disputes
the district court’s conclusion that he
had the requisite number of prior felony
convictions, arguing that the two prior
felony convictions relied on by the
government should not have been counted
separately because they were consolidated
for sentencing. The government pointed to
two prior felony convictions: battery
with a deadly weapon, which occurred on
October 8, 1997, and dealing in a sawed-
off shotgun, which occurred on November
9, 1997. These two charges, together with
a charge for possession of cocaine which
occurred on November 21, 1997, were
disposed of by means of one plea
agreement at a single sentencing hearing
held on June 11, 1998. However, the
sentencing court did not issue a formal
order of consolidation. The question is
whether the charges relied on by the
government were nevertheless
"consolidated for sentencing." The
district court found that they were not,
and we review the district court’s
conclusion for clear error. See United
States v. Buford, 201 F.3d 937, 942 (7th
Cir. 2000), aff’d 121 S. Ct. 1276 (2001).
Cases may be deemed consolidated for
sentencing even without a formal notice
of consolidation, where the cases "are
factually or logically related, and
sentencing was joint." See Buford, 201
F.3d at 940 (7th Cir. 2000) (citation
omitted). We have called this "functional
consolidation." See id. However, joint
sentencing for administrative convenience
is not "consolidation for sentencing"
under Application Note 3 to sec. 4A1.2,
see id. (citations omitted), and the mere
fact that a defendant was sentenced for
multiple offenses on the same day does
not establish that his sentences were
consolidated rather than merely disposed
of simultaneously for the sake of
convenience. See United States v.
Stalbaum, 63 F.3d 537, 539 (7th Cir.
1995) (citation omitted). Therefore, in
the absence of a formal order of
consolidation, we will deem sentences
functionally consolidated only where
there is "a showing on the record of the
sentencing hearing that the sentencing
judge considered the cases sufficiently
related for consolidation and effectively
entered one sentence for the multiple
convictions." See id. (citing United
States v. Russell, 2 F.3d 200, 204 (7th
Cir. 1993)).
Best does not identify any such showing.
Moreover, there are several indications
in the record that the sentencing judge
did not consider the offenses to be
consolidated. For example, while the
court imposed concurrent sentences for
the offenses, it imposed separate
sentences of varying lengths rather than
a single sentence. See Buford, 201 F.3d
at 942 (affirming district court’s
conclusion that prior sentences were not
consolidated where "separate sentences
were imposed and separate judgments
entered."); United States v. Sexton, 2
F.3d 218, 219 (7th Cir. 1993) (citations
omitted) (holding that "concurrent
sentences do not automatically create
cases consolidated for sentencing."). In
addition, the three prior cases were
filed under separate court docket
numbers, and the sentencing court
retained the separate docket numbers for
sentencing purposes, entering separate
judgments and sentences for each court
docket number. See Stalbaum, 63 F.3d at
539-40 (finding no consolidation where
the sentencing court retained the
original, separate docket numbers and
imposed a separate--albeit concurrent--
sentence for each offense, even though
there was only one judgment of conviction
for three offenses). Finally, the crimes
of battery with a deadly weapon and
dealing in a sawed-off shotgun occurred
on separate occasions approximately one
month apart, and there is no indication
(apart from Best’s conclusory assertion)
that they were factually or logically
related or that the sentencing court
thought that they were. See United States
v. Joseph, 50 F.3d 401, 404 (7th Cir.
1995). Without some such indication or a
formal order of consolidation, Best
cannot establish that the sentences were
functionally consolidated. See United
States v. Bomski, 125 F.3d 1115, 1119
(7th Cir. 1997).
Relying on United States v. Russell, 2
F.3d 200, 204 (7th Cir. 1993), Best
argues that the sentencing court treated
the two offenses as consolidated for
sentencing because "the sentence for one
conviction was . . . affected by the
conduct under the other charge," in that
each sentence took into account as an
aggravating factor the conviction
underlying the other sentence. However,
the sentencing court considered the other
convictions only for purposes of
determining the defendant’s criminal
history. If such use of prior convictions
by itself constituted consolidation for
sentencing, then any use of prior
convictions for criminal history purposes
(no matter how remote in time or
factually and/or logically distinct from
the current offense the prior convictions
were) would suffice to consolidate the
prior convictions with the current
conviction for sentencing purposes. Such
a result contravenes both common sense
and our precedent. Moreover, even if the
sentencing court’s consideration of the
conviction underlying one charge as an
aggravating factor in imposing the
sentence on the other charge weighs in
favor of a finding of functional
consolidation, there are several factors
present in this case which point towards
the opposite conclusion. Therefore, we
cannot say that the district court erred
in finding the prior sentences unrelated
and in sentencing Best as a career
offender. See Buford, 201 F.3d at 940,
942 (finding no clear error where
"elements of [the defendant’s] situation
support[ed] either characterization.").
C) Whether dealing in a sawed-off
shotgun is a "crime of violence"
Best’s final argument can be disposed of
summarily. Best contends that he should
not have been sentenced as a career
offender because his conviction for
dealing in a sawed-off shotgun in
violation of Ind. Code sec. 35-47-5-4.1
is not a "crime of violence" within the
meaning of U.S.S.G. sec. 4B1.2.
Unfortunately for Best, we have recently
rejected this argument, and have joined
two other circuits in holding that
possession of a sawed-off shotgun is an
offense which "involves conduct that
presents a serious potential risk of
physical injury to another," thereby
rendering it a "crime of violence" under
U.S.S.G. sec. 4B1.2(a)(2). See United
States v. Brazeau, 237 F.3d 842, 844-45
(7th Cir. 2001); see also United States
v. Allegree, 175 F.3d 648, 651 (8th Cir.
1999); United States v. Hayes, 7 F.3d
144, 145 (9th Cir. 1993); cf. United
States v. Fortes, 141 F.3d 1, 7-8 (1st
Cir. 1998).
CONCLUSION
For the foregoing reasons, we AFFIRM
Best’s conviction and sentence.
FOOTNOTES
/1 Conley also cooperated with the government.
When the FBI interviewed him and showed him
photospreads which included photographs of Best
and Gardner, he identified Gardner as the person
who had sold him crack on the day of his arrest.
However, at trial, Conley stated that Best was
the man whom he identified, and stated that he
was "pretty certain" that he was the man.
Moreover, Conley testified that he had bought
crack at the house the day before his arrest.
/2 Best also testified that Nalls left the house
while he was sleeping, but that Nalls gave Best
a key to the house before he left, because Best
and the others had planned to leave the house and
return later.
/3 Relying on United States v. Murphy, 935 F.2d 899(7th Cir. 1991), Best argues that the prior bad
act evidence was not admissible to show absence
of mistake, because he did not claim that he
committed the charged actions accidentally or by
mistake. However, Murphy does not stand for the
proposition that prior act evidence is admissible
under Rule 404(b) only when the defendant asserts
that he committed the charged act by mistake.
Indeed, such a suggestion would contradict our
precedent. See, e.g., Williams, 238 F.3d at 875-
76 (holding evidence of defendant’s prior narcot-
ics activities admissible to show, inter alia,
intent, knowledge, and absence of mistake in a
prosecution for possession of cocaine with intent
to distribute, where the defendant denied pos-
sessing the cocaine altogether).