United States v. Glover, Roy ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1695
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROY GLOVER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 940—Blanche M. Manning, Judge.
____________
ARGUED FEBRUARY 7, 2007—DECIDED MARCH 14, 2007
____________
Before FLAUM, ROVNER, and EVANS, Circuit Judges.
FLAUM, Circuit Judge. A jury convicted Roy Glover of
two drug offenses and two gun offenses: (1) possession
with intent to distribute heroin and cocaine, in violation
of 21 U.S.C. § 841(a)(1); (2) possession of heroin and
cocaine within 1,000 feet of a school, in violation of 21
U.S.C. §§ 841(a)(1) and 860(a); (3) possession of a firearm
in furtherance of, and during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A);
and (4) knowingly possessing a firearm and ammunition,
having been previously convicted of a crime punishable
by a term of imprisonment exceeding one year, in violation
of 18 U.S.C. § 922(g). On February 28, 2006, the district
court sentenced Glover to 360 months’ imprisonment
2 No. 06-1695
after determining that he was a career offender. Glover
alleges numerous errors related to his conviction and
sentence. For the following reasons, we affirm.
I. BACKGROUND
On June 23, 2004, around 10:00 p.m., Chicago police
officers were conducting surveillance of street activity in
the 4200 block of West Adams Street, an area known for
drug crimes. Officers John Killackey and Sean Pickett
saw Roy Glover standing across the street from an elemen-
tary school and decided to set up surveillance in some
nearby bushes. Over the next fifteen minutes, the officers
observed four unidentified individuals approach Glover
and hand him something that he held up to examine. Each
time, Glover walked a few steps away and retrieved a
plastic bag from the ground, took out at least one small
object, and handed it to the individual.
Killackey and Pickett radioed two other police officers,
Daniel Bora and Humberto Munguia, and directed them
to arrest Glover for suspected drug dealing. When the two
responding officers pulled up in unmarked vehicles, Glover
turned and ran. As Bora gave chase, Glover fled down a
gangway towards a basement apartment at 4242 W.
Adams. Bora saw Glover reach toward his waistband
and throw an object away from his body. Bora heard the
clink of metal hitting the ground. Glover then entered the
basement apartment and closed the door behind him. Bora
retrieved a semi-automatic firearm from the ground and
arrested Glover in the basement apartment. At the time
of arrest, Glover possessed four live rounds and $80 in
cash.
While Bora chased and apprehended Glover, Pickett
recovered the plastic bag from which Glover had been
retrieving items. The plastic bag contained two smaller
No. 06-1695 3
bags, one of which contained 39 capsules of cocaine base,
weighing 3.3 grams in total. The second small bag con-
tained 14 tinfoil packets of heroin mixtures, weighing
2.1 grams altogether.
At trial, in addition to the testimony of the responding
officers, the government presented expert testimony
from a Chicago Police Department evidence technician,
Jane Michalik. Michalik testified that she tested the
gun, bullet, and magazine recovered at the scene for
fingerprints. Michalik recovered one partial print, but it
was not suitable for comparison. Nevertheless, Michalik
explained that such an outcome is not unusual—finger-
prints are rarely obtained from guns due to various fac-
tors like sweating and the weather. On cross examina-
tion, Michalik conceded that she was unaware of whether
Glover was sweating or what the weather conditions were
on the night of Glover’s arrest.
The government also presented expert testimony from
Robert Coleman, a DEA task force officer. Coleman
testified that he had been involved in hundreds of drug
investigations, which had honed his expertise on the
methods and practices of drug dealers. He said that
street level drug dealers typically sell very small quanti-
ties of cocaine and heroin, which can be packaged in
capsules, bottle caps, corner cut baggies, or foils. Coleman
also observed that even small amounts of drugs, as
in Glover’s case, can be distributed if packaged in small
enough quantities. He explained that street dealers
often maintain small stashes of drugs nearby for
resupply, rather than carrying all of their drugs
with them. Finally, Coleman testified that firearms are
common “tools of the trade” for drug dealers.
Glover’s neighbor and girlfriend testified on his behalf.
The neighbor attempted to discredit the officers’ version of
events by casting doubt on whether the officers had
4 No. 06-1695
conducted surveillance from the yard as they had
claimed. The neighbor testified that he owned two dogs
that barked loudly whenever anyone entered his yard.
Although the neighbor specifically recalled the night of
Glover’s arrest, he did not remember hearing his dogs
bark. Glover’s girlfriend testified about the officers’ entry
into the apartment she shared with Glover on the night of
his arrest. She also testified about Glover’s employment
history, noting that he had worked for their landlord and
for Comcast Cable.
During closing arguments, the prosecutor remarked on
Glover’s employment history. Specifically, he pointed out
that Glover had subpoena power and could have ob-
tained documents related to his employment at Comcast
rather than relying on his girlfriend’s testimony. Glover
objected to the remark, and the judge sustained the
objection. The prosecutor continued, noting that no one
from Comcast had testified. Glover again objected, and
the judge again sustained the objection. The judge then
instructed the jury to disregard the remarks, emphasizing
that the government retained the burden of proof.
After closing arguments, the judge provided the jury
with instructions. Glover requested a “mere presence”
instruction, which would have informed the jury that a
defendant’s knowledge that a crime is being committed
in his presence is insufficient to support a conviction.
However, the judge refused to tender the instruction,
concluding that the evidence presented did not warrant
it. The jury returned a guilty verdict on all four counts
contained in the indictment.
Between Glover’s trial and sentencing, the probation
office prepared a presentence investigation report (“PSR”)
which concluded that Glover was a career offender under
U.S.S.G. § 4B1.1(a). The probation office based its con-
clusion on two prior convictions: a 1984 murder conviction
No. 06-1695 5
when Glover was 17 and a 1991 conviction for the unlawful
possession of a weapon by a person in prison. Glover
objected to the PSR’s conclusion that he was a career
offender, but the district court agreed with the PSR.
Consequently, Glover’s criminal history level increased
from a 4 to a 6, yielding an offense level of 28 and a
recommended sentence range of 360 months to life in
prison. The district court sentenced Glover to 360 months
in prison. Glover appeals his conviction and sentence.
II. Discussion
Glover raises multiple issues related to both his convic-
tion and sentence. First, he contends that the trial court
improperly admitted Michalik’s and Coleman’s expert
testimony. Second, he claims that the district court erred
in refusing to provide the jury with a mere presence
instruction. Third, he asserts that the prosecutor’s im-
proper remarks during closing argument warranted a new
trial. As to his sentence, Glover argues that he should
not have been classified as a career offender, that this
Court should revisit its presumption that guidelines
sentences are reasonable, and that his sentence was
unreasonable in any case.
A. Expert Testimony on Practices of Street Level
Drug Dealers
Glover asks this Court to reverse his conviction because
the trial court improperly allowed Officer Coleman to
testify as an expert on the practices of street level drug
dealers. Glover argues that Coleman’s testimony was
irrelevant because the jury did not need an expert to
conclude that the drugs were packaged for distribution.
Furthermore, Glover continues, Coleman’s testimony
violated Federal Rule of Evidence 704(b) because he made
6 No. 06-1695
a final conclusion or inference about Glover’s mental state,
i.e., what Glover intended to do with the drugs. We re-
view the trial court’s admission of Coleman’s expert
testimony for an abuse of discretion. See United States v.
Parra, 402 F.3d 752, 758 (7th Cir. 2005).
This Circuit repeatedly has approved expert police
testimony about the characteristics of drug dealers. See,
e.g., United States v. Love, 336 F.3d 643, 646-48 (7th Cir.
2003); United States v. Cruz-Velasco, 224 F.3d 654, 659-61
(7th Cir. 2000) (collecting cases); United States v.
Lipscomb, 14 F.3d 1236, 1239-40 (7th Cir. 1994) (collecting
cases). Given that Glover was being tried for selling
drugs on the street, testimony regarding the practices of
street level drug dealers was unquestionably relevant.
See, e.g., United States v. Sanchez-Galvez, 33 F.3d 829, 832
(7th Cir. 1994) (“[B]ecause the clandestine nature of
narcotics trafficking is likely to be outside the knowledge
of the average layman, law enforcement officers may
testify as experts in order to assist the jury in understand-
ing these transactions.”).
Glover’s next claim—that Coleman improperly opined on
Glover’s mental state—is governed by our decision in
Lipscomb:
[W]hen a law enforcement official states an opinion
about the criminal nature of a defendant’s activities,
such testimony should not be excluded under Rule
704(b) as long as it is made clear, either by the court
expressly or in the nature of the examination, that
the opinion is based on the expert’s knowledge of
common criminal practices, and not on some special
knowledge of defendant’s mental processes. Relevant
in this regard, though not determinative, is the de-
gree to which the expert refers specifically to the
‘intent’ of the defendant.
No. 06-1695 7
14 F.3d at 1242-43. In this case, Coleman made no refer-
ence to Glover’s “intent,” and the structure of his examina-
tion made clear that he was speaking generally about
the practices of street level drug dealers, not specifically
about Glover. Indeed, the district court instructed the
jury to that effect. Thus, the district court’s decision to
admit Coleman’s testimony was within its discretion.
Glover also contends that even if Coleman’s testimony
was otherwise admissible, its probative value was sub-
stantially outweighed by the danger of unfair prejudice.
This Court has previously upheld the admission of similar
testimony against such an objection. See, e.g., United
States v. Brown, 7 F.3d 648, 654-55 (7th Cir. 1993); United
States v. Foster, 939 F.2d 445, 452 (7th Cir. 1991). Never-
theless, as Foster instructed, we will freshly assesses
the balance between probative value and unfair prejudice
in this case. Id.
A court should exclude evidence “if its probative value
is substantially outweighed by the danger of unfair preju-
dice.” Fed. R. Evid. 403. Evidence is unfairly prejudicial
if it has “an undue tendency to suggest decision on an
improper basis, commonly though not necessarily, an
emotional one.” Advisory Committee’s Notes on Fed. R.
Evid. 403. With regard to expert testimony, relevant
factors include (1) whether the expert witness was also an
eyewitness or involved in the defendant’s arrest; (2)
whether cautionary instructions were given; and (3)
whether the defense had a full opportunity to cross-
examine the expert. United States v. Doe, 149 F.3d 634,
637-38 (7th Cir. 1998).
In light of these factors, the district court did not abuse
its discretion by admitting Coleman’s testimony. First,
Coleman was not an eyewitness nor was he involved in
Glover’s arrest. Second, the district court instructed the
jury that Coleman had no special knowledge of Glover’s
mental processes or intent. Third, Glover had an opportu-
8 No. 06-1695
nity to cross-examine Coleman. In short, none of Glover’s
objections to Coleman’s testimony warrant reversal.
B. Expert Testimony of Fingerprint Technician
Glover next challenges the district court’s admission of
Michalik’s testimony as unreliable, irrelevant, and unfairly
prejudicial. We review whether the district court cor-
rectly followed the procedures required by Federal Rule
of Evidence 702 de novo, but once we determine those
procedures were followed, we review decisions to admit
or exclude expert testimony for abuse of discretion only.
See Parra, 402 F.3d at 758.1
Before permitting Michalik to testify in front of the
jury, the district court conducted voir dire to determine
whether her testimony should be admitted. After hearing
arguments from both sides, the district court considered
Michalik’s qualifications and determined that her testi-
mony would assist the jury. Accordingly, the district
court fulfilled its gatekeeping function under Federal
Rule of Evidence 702.
Because the district court followed the procedures
outlined in Federal Rule of Evidence 702, we consider
only whether the court abused its discretion in admitting
Michalik’s testimony. Expert testimony is admissible if
1
The government contends that we should review the admis-
sion of Michalik’s testimony for plain error because Glover did
not specifically object to her qualifications as an expert. Because
Glover objected to Michalik’s testimony altogether and attempted
to discredit her expertise during voir dire, he sufficiently
preserved his arguments on appeal. See, e.g., United States v.
Ortiz, 431 F.3d 1035, 1038 (7th Cir. 2005) (recognizing that
we construe waiver/forfeiture principles liberally in favor of
criminal defendants).
No. 06-1695 9
it is both relevant and reliable. Fed. R. Evid. 702. Expert
testimony is reliable only if offered by “a witness qualified
as an expert by knowledge, skill, experience, training, or
education,” and “(1) the testimony is based upon suf-
ficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts
of the case.” Id. Michalik was an eighteen year veteran of
the Chicago Police Department who had been an evidence
technician since 1997. Before becoming an evidence
technician, she completed additional training in crime
scene processing. Moreover, this Court has long ac-
cepted the scientific validity of fingerprint testing in
general. See United States v. Havvard, 260 F.3d 597, 600-
01 (7th Cir. 2001). Accordingly, the district court did not
abuse its discretion by finding that Michalik was a reli-
able expert.
Glover next contends that Michalik’s testimony that
fingerprints are rarely recovered from firearms is not
relevant. The strongest support for Glover’s position,
although he does not cite the case, is United States v.
Paladino, in which a police officer, testifying as an expert,
noted that “it was common to be unable to find usable
fingerprints ‘at a crime scene or on an object.’ ” 401 F.3d
471, 477-78 (7th Cir. 2005). The issue in Paladino was
whether the trial judge’s comment on that testimony
improperly signaled to the jury that the defendant was
guilty. Id. In addressing the question, the Court com-
mented:
What this line of inquiry had to do with [the defen-
dant’s] guilt is obscure. That there was no fingerprint
evidence meant simply that there was no fingerprint
evidence. Had [the defendant’s] fingerprints been
found on the gun, this would have helped the govern-
ment and if someone else’s fingerprints had been found
on the gun, this would have helped [the defen-
10 No. 06-1695
dant] . . . . Since no fingerprints were found, neither
side was helped; and we can’t see what difference it
makes whether failure to find fingerprints on a gun
is common or uncommon. In fact it is extremely
common: ‘successful development of latent prints on
firearms is difficult to achieve. In reality, very few
identifiable latent prints are found on firearms, a
fact that has been discussed in both literature and
the judicial system.’ Clive A. Barnum & Darrell R.
Klasey, ‘Factors Affecting the Recovery of Latent
Prints on Firearms,’ Prosecutor, Jan./Feb.1998, p. 32.
Id. at 478. This dicta could be read to suggest that testi-
mony like Michalik’s has limited probative value. In this
case, however, the testimony helped rebut Glover’s ar-
gument that the lack of fingerprints indicated innocence.
It assisted the jury in understanding that, despite what
they might see on popular television crime shows, certain
objects are not particularly conducive to finding prints.
Glover did not have an opportunity to wipe his prints
from the gun, nor was there evidence that he wore gloves.
Without Michalik’s testimony, the jury may not have
understood how Glover could have possessed the weapon
without leaving prints.
Glover contends that even if Michalik’s testimony was
relevant, it was unfairly prejudicial and the trial court
should have excluded it under Federal Rule of Evidence
403. Specifically, Glover asserts that Michalik’s testimony
“added undeserved credibility to her unsuccessful and
perhaps even incompetent efforts” to recover prints.2 In
2
According to Glover, Michalik’s assertion that fingerprints are
rarely recovered from firearms is belied by a number of cases
in which this Court affirmed convictions based on latent finger-
prints recovered from firearms. See, e.g., United States v.
(continued...)
No. 06-1695 11
addition, he posits that Michalik’s testimony that sweat,
weather, and the handling of the gun could have impacted
whether prints were recoverable requires no expertise. See
Fed. R. Evid. 702, Advisory Committee Notes (“There is
no more certain test for determining when experts may
be used than the common sense inquiry whether the
untrained layman would be qualified to determine . . . the
particular issue without enlightenment from those hav-
ing a specialized understanding of the subject . . . .”). We
disagree, however, for the same reason that we find the
testimony relevant—the average layperson might expect
a gun to bear fingerprints if it was handled without
gloves. Moreover, the jury was aware of the limits of
Michalik’s testimony because Glover’s cross-examination
highlighted that she did not know the conditions under
which the weapon was recovered.
Glover concludes that dressing up Michalik’s testimony
as expertise unfairly elevated its importance, thus preju-
dicing him. We reject this argument as well. Once again,
the factors from Doe support the trial court’s admission of
the testimony. Though Michalik’s dual role as evidence
technician on Glover’s case and expert on the success of
latent fingerprint recovery from firearms heightened the
risk of prejudice, the district court provided the jury with
cautionary instructions, and Glover’s counsel cross-exam-
ined Michalik extensively.
2
(...continued)
Bowman, 353 F.3d 546 (7th Cir. 2003); United States v. Havvard,
260 F.3d 597 (7th Cir. 2001); United States v. Wilson, 922 F.2d
1336, 1338-39 (7th Cir. 1991). Although fingerprint experts
testified about recovering latent prints from firearms in all of
these cases, none of the experts testified about their relative
success in recovering fingerprints from firearms. In short, these
cases demonstrate only that evidence technicians sometimes
recover fingerprints from firearms, an unsurprising proposi-
tion and one that is consistent with Michalik’s testimony.
12 No. 06-1695
C. Mere Presence Instruction
Glover also maintains that the district court improperly
refused to give the jury a mere presence instruction.
Seventh Circuit pattern instruction 5.11 provides that “a
defendant’s presence at the scene of a crime and knowl-
edge that a crime is being committed is not alone sufficient
to establish the defendant’s guilt.” Glover argues that the
instruction was consistent with his theory that he was
merely present on the street and that the officers did not
see him engage in any criminal activity. We review a
refusal to give a theory of defense instruction de novo
where the defendant objected below. United States v.
Baker, 438 F.3d 749, 758 (7th Cir. 2006).
In this Circuit, a defendant requesting a mere presence
instruction must identify evidence consistent with a theory
of mere presence. See id.; United States v. Robinson, 96
F.3d 246, 251 (7th Cir. 1996); United States v. Tringali, 71
F.3d 1375, 1380 (7th Cir. 1995). Here, Glover’s defense
did not suggest he was standing around while others
engaged in criminal activity—the typical scenario in which
a mere presence instruction is warranted. Consequently,
the district court did not err by refusing the instruction.
Even assuming that the trial court should have given the
instruction, any error was harmless. This Court observed
in Robinson and Tringali that other instructions indicat-
ing that presence alone is insufficient for conviction can
cure any deficiency caused by not giving a mere presence
instruction. In this case, the jury was instructed that
to find Glover guilty, they had to find that he knowingly
possessed the firearm and drugs. Given these instruc-
tions, no reasonable jury could have convicted Glover
merely for being in the vicinity of illegal objects.
No. 06-1695 13
D. Prosecutor’s Closing Remarks
Glover further argues that the prosecutor’s improper
closing remarks warranted a new trial. We review the
district court’s refusal to grant a new trial for abuse of
discretion. United States v. Alexander, 163 F.3d 426, 429
(7th Cir. 1998).
Glover twice objected to the prosecutor’s remarks about
his employment with Comcast and the district court twice
sustained his objection, instructing the jury to disregard
the remarks and emphasizing that the government
retained the burden of proof. Nonetheless, Glover con-
tends that the comments were so prejudicial that the
district court abused its discretion when it refused to grant
Glover’s request for a mistrial.
Whether the district court should have granted a
mistrial depends on a two part inquiry: 1) whether the
prosecutor’s arguments, viewed in isolation, were im-
proper; and 2) whether in light of the record, the remarks
deprived Glover of a fair trial. See United States v.
Cassano, 372 F.3d 868, 879 (7th Cir. 2004). The govern-
ment contends that the comments were proper and that
Glover received a fair trial.
If the evidence at issue does not implicate a defendant’s
right against self-incrimination, and the jury has been
properly instructed as to the burden of proof, a prosecutor
may comment on a defendant’s failure to present evi-
dence contradicting the government’s proof at trial. See
United States v. DiCaro, 852 F.2d 259, 263 (7th Cir. 1988)
(holding that a prosecutor may comment on a defendant’s
failure to call an alibi witness). Likewise, the govern-
ment may emphasize the weakness of the case that the
defense presents. See, e.g., United States v. Snook, 366
F.3d 439, 444-45 (7th Cir. 2004); United States v. Xiong,
262 F.3d 672, 675 (7th Cir. 2001). Additionally, at least
two of our sister circuits have held that a prosecutor may
14 No. 06-1695
highlight weaknesses in the defense case by pointing out
the absence of supporting documents. See United States
v. Exarhos, 135 F.3d 723, 728 (11th Cir. 1998) (holding
that prosecutor’s comment on the absence of receipts was
warranted by “[d]efense counsel’s suggestion that the
defendants were involved in a legitimate business”);
United States v. Brennan, 994 F.2d 918, 926-27 (1st Cir.
1993) (holding that a prosecutor’s comments regarding
a defendant’s failure to produce documents corroborat-
ing a defense theory are proper if they are limited to
assailing the strength or plausibility of the proffered
theory). These cases highlight the broad range of com-
ments a prosecutor may make about a defendant’s case.
Glover relies on several cases in which courts deemed
prosecutorial remarks improper, but those cases are
distinguishable. For example, in United States v. Cunning-
ham, we concluded that the following closing remarks
were improper: “[C]ollectively you can go back there and
stop [the defendants]. You can make sure that [the victim]
isn’t going to get beat up again. Heaven forbid, for the
witnesses that came in this courtroom the last couple of
days if these guys are found not guilty. Heaven forbid.
Don’t let that happen . . .” 54 F.3d 295, 300-01 (7th Cir.
1995). Likewise, in Bates v. Bell, the prosecutor argued
to the jury: “If you, based on the law and the facts of this
case, choose not to execute the defendant, you have
passively issued a warrant of execution for someone
else.” 402 F.3d 635, 642 (6th Cir. 2005); see also Moore v.
Morton, 255 F.3d 95, 101 (3d Cir. 2001) (holding that the
following argument from prosecution constituted error:
“The last thing I have to say is that if you don’t believe
[M.A.] and you think she’s lying, then you’ve probably
perpetrated a worse assault on her”). The improper
comments in cases above attempted to manipulate the
conscience of the juries, warning them of dire consequences
should they acquit the defendants. By contrast, the
No. 06-1695 15
prosecutorial comments in this case related directly to the
evidence produced at trial and did not encourage the jury
to convict Glover based on an emotional response.
Even assuming that the government’s comments were
improper, Glover is entitled to a new trial only if he
demonstrates that the “prosecutor’s comments so infected
the trial with unfairness as to make the resulting con-
viction a denial of due process.” Darden v. Wainwright, 477
U.S. 168, 181 (1986). In determining whether prosecu-
torial misconduct deprived a defendant of a fair trial,
we consider the nature and seriousness of the prosecuto-
rial misconduct, whether defense counsel invited the
prosecutor’s remarks, the adequacy of the trial court’s
instructions to the jury, whether the defense was able
to counter the improper arguments through rebuttal, and
the weight of the evidence against the defendant. Cassano,
372 F.3d at 879.
Here, the prosecutor’s comments did not implicate
the core issue of Glover’s guilt or innocence. Rather,
Glover’s employment status was probative only of his
motivation for selling drugs. Moreover, while we ques-
tion whether an earlier, unrelated reference to Glover’s
subpoena power invited the prosecutor’s remarks, all other
factors weigh against Glover. The judge instructed the
jury to disregard the comments, emphasized that closing
arguments were not evidence, and reiterated that the
burden of proof remained with the government. Addition-
ally, Glover responded to the prosecutor’s comments in
his own closing statements. Finally, the evidence against
Glover, which included the testimony of several police
officers as well as physical evidence recovered at the
scene, was substantial. In short, the trial court did not
abuse its discretion in denying Glover’s motion for a
mistrial.
16 No. 06-1695
E. Career Offender Classification
Glover next questions the district court’s determination
that he qualified for sentencing as a career offender under
§ 4B1.1 of the sentencing guidelines. We review findings
of fact and applications of the guidelines for clear error.
See, e.g., United States v. Stitman, 472 F.3d 983, 986 (7th
Cir. 2007). We review de novo questions of law involv-
ing the interpretation of a provision of the guidelines. Id.
Section 4B1.1 states:
(a) A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the defen-
dant 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.
In this case, Glover’s career offender status was based on
two prior felony convictions for violent crime, specifically
murder and possession of a weapon in prison. Although
we have held that mere possession of a weapon is not a
crime of violence, see United States v. Chapple, 942 F.2d
439, 442 (7th Cir. 1991), we have also said that the
possession of a weapon in prison, in and of itself, implies
a violent act. United States v. Vahovik, 160 F.3d 395, 397
(7th Cir. 1998).
Glover contends that the district court’s finding that he
was a career offender constituted impermissible judicial
factfinding in violation of Booker and Apprendi. This
Court has observed that Booker does not affect 28 U.S.C.
§994(h), which calls for career offenders to be sentenced at
or near the statutory maximum. See United States v.
Woodard, 408 F.3d 396, 399 (7th Cir. 2005). Nor does the
district court’s determination that Glover was a career
offender violate Apprendi, which does not apply to prior
No. 06-1695 17
convictions. 530 U.S. 466, 488-90 (2000) (specifically
excluding prior convictions from the requirement that
sentence-enhancing facts be proven beyond a reasonable
doubt). Moreover, we have said that the career offender
rules pose legal rather than factual issues for a sentenc-
ing judge, which removes the rules from the reach of
Apprendi and Booker altogether. See Woodard, 408 F.3d at
399. In short, the district court did not err by classifying
Glover as a career offender for sentencing purposes.
F. Reasonableness of Sentence
Finally, Glover argues that his sentence, by failing to
account for mitigating factors, ignores relevant provisions
of 18 U.S.C. § 3553.3 Prior to sentencing Glover, the
district court elicited and considered his written submis-
sions detailing mitigating circumstances that the court
should take into account. Glover’s written submissions
included information on his father’s violent death when
Glover was five-years-old, the murder of his stepbrother,
Glover’s lack of a male role model, his association with
“a bad crowd,” and his two children. After hearing argu-
ments from both sides, the district court imposed a
sentence of 360 months, the low end of the guidelines
range. The district court noted that Glover’s arguments
in mitigation did not dissuade it from a guidelines sen-
tence because, based on Glover’s history and characteris-
3
Glover also urges us to abandon our presumption that a
properly calculated guidelines sentence is reasonable, claiming
that the presumption is both unwarranted and inconsistent
with the Supreme Court’s holding in United States v. Booker, 543
U.S. 220 (2005). We decline to revisit the issue at this time,
particularly in light of the Supreme Court’s pending decisions
in Rita v. United States, No. 06-5754, and Claiborne v. United
States, No. 06-5618, which were argued on February 20, 2007.
18 No. 06-1695
tics, the court found that he was a recidivist. Though we
recognize that a 30-year sentence for a non-violent drug
offense is a harsh penalty, it cannot be viewed as unrea-
sonable in light of Glover’s criminal history. We therefore
affirm Glover’s sentence.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Glover’s convic-
tion and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-14-07