United States v. Morris, Denard ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4679
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENARD MORRIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:03-CR-62—Theresa L. Springmann, Judge.
____________
ARGUED JANUARY 12, 2007—DECIDED AUGUST 20, 2007
____________
Before POSNER, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. Denard Morris was convicted on
various drug charges, for which he received a typically
severe sentence of 262 months’ incarceration. His ap-
peal centers on alleged governmental misconduct at the
trial. Morris’s cousin, Tramayne Peterson, pleaded guilty
to Count I of the indictment and testified against Morris
as part of a plea bargain with the government. When
questioned about his plea deal at trial, Peterson asserted
that the mandatory minimum sentence for his plea was
10 years; the prosecutor reinforced this by arguing to the
jury on multiple occasions that Peterson could not get less
than 10 years. Following Morris’s conviction, the govern-
ment moved under 18 U.S.C. § 3553(e) and U.S.S.G.
2 No. 05-4679
§ 5K1.1 for Peterson to be sentenced below the mandatory
minimum to a 70-month term; the court granted that
motion. While we conclude that the prosecutor did com-
mit misconduct by misleading the jury about the plea
deal that the government reached with Peterson, this
act was not enough to infect the fundamental fairness
of the entire proceeding. With the exception of Morris’s
challenge to the concurrent sentence he received on Count
II, which the prosecution agrees is beyond the statutory
maximum and must be fixed on remand, all of his other
arguments lack merit. Thus, with that minor qualifica-
tion, we affirm.
I
On August 15, 2003, Tramayne Peterson was looking for
a ride to the mall, when Morris, his cousin, pulled up in a
white van. Peterson hopped in. A few blocks later, the
men drove past Officer George Valdez, Jr., of the East
Chicago police force. Officer Valdez recognized Morris,
having seen his picture during that day’s squad briefing.
Knowing there was an active bench warrant for Morris’s
arrest, Valdez pulled the van over.
According to Peterson’s testimony, he had just finished
“rolling marijuana” when Officer Valdez pulled behind
the van. As Morris stopped the van, he handed Peterson a
grey plastic bag and said, “Take this and run.” Peterson
did and Officer Cima DeVilla gave chase. Although
Peterson claimed not to know what was in the bag when
his cousin handed it to him, as Peterson ran and jumped
a fence, “stuff ”—beginning with “a white substance” that
he “figured . . . to be cocaine”—began to fall out of the
bag. Peterson continued to run as a .45 caliber pistol,
baggies of marijuana and cocaine, and an electronic scale
all tumbled out behind him. Eventually Peterson dropped
the bag. After vaulting over a few more fences, he was
No. 05-4679 3
apprehended by a third officer, Anton West. Meanwhile,
Officer Valdez arrested Morris without incident. No
additional drugs, firearms, or other contraband was
found on Morris’s person or in the van.
Following his arrest, Morris was indicted on one count
of possession of cocaine base in the form of crack with
intent to distribute, one count of possession of marijuana
with intent to distribute, both in violation of 21 U.S.C.
§ 841(a)(1), and one count of carrying a firearm during
and in relation to a drug crime, in violation of 18 U.S.C.
§ 924(c). He was convicted of the first two counts after a
jury trial and sentenced to 262 months on each count.
II
Morris has taken a kitchen-sink approach to his appeal,
raising multiple legal challenges out of a few discrete
factual constellations. Two basic claims, however, predomi-
nate: insufficiency of the evidence and prosecutorial
misconduct. We briefly explain the legal standards that
apply before turning to the specifics of his arguments.
Defendants challenging the sufficiency of the evidence
supporting their conviction face an extremely high burden.
We will reverse “ ‘only if, after viewing all of the evidence
in a light most favorable to the government, and drawing
all reasonable inferences therefrom, . . . a rational trier
of fact could not have found the essential elements of
the crime, beyond a reasonable doubt.’ ” United States v.
Moore, 446 F.3d 671, 677 (7th Cir. 2006) (quoting United
States v. Rivera, 825 F.2d 152, 158-59 (7th Cir. 1987)).
Claims of prosecutorial misconduct are also difficult to
sustain. When evaluating a claim of prosecutorial miscon-
duct, “the ultimate question [is] ‘whether the prosecutor[’s]
comments so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’ ”
4 No. 05-4679
Swofford v. Dobucki, 137 F.3d 442, 445 (7th Cir. 1998)
(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(internal quotation omitted)). In reviewing allegations of
improper comments by a prosecutor, this court employs
a two-step process. “We first look at the comments in
isolation to determine if they were improper.” United
States v. Castillo, 148 F.3d 770, 775 (7th Cir. 1998).
Factors the Supreme Court has found helpful in evaluating
whether comments were improper include the following:
(1) whether the prosecutor manipulated or misstated
the evidence, (2) whether the comments implicated
other specific rights of the accused (such as the right
to remain silent), (3) whether the comments were
invited by or responsive to defense counsel’s summa-
tion, (4) whether the trial court’s instructions amelio-
rated the harm, (5) whether the evidence weighed
heavily against the defendant, and (6) whether the
defendant had an opportunity to rebut the prosecutor’s
comments.
Swofford, 137 F.3d at 444-45 (citing Darden, 477 U.S. at
181-82). “If we find the comments are proper, the analysis
ends. If we find they are improper, we must then examine
the comments in light of the record as a whole to deter-
mine whether the comments deprived the defendant of
a fair trial.” Castillo, 148 F.3d at 775.
1. Misleading the jury as to Peterson’s sentence
Morris’s most substantial allegations center on Peter-
son’s testimony and the government’s use of it in its
arguments to the jury. He argues that Peterson’s testi-
mony was false and misleading based on the following
exchange with Assistant U.S. Attorney Robert N. Trgovich,
the prosecutor, during direct examination:
No. 05-4679 5
Q: What’s the government going to do for you under
that plea agreement?
A: Just sentence me; they said they was going to make
a recommendation to sentence me at the low end of
the guidelines.
Q: And what about with respect to Counts Two and
Three?
A: They was going to dismiss them.
Q: Do you understand what type of sentence you’re
looking at under Count One?
A: Yes, sir, I do.
Q: And what is that sentence?
A: Ten years.
Q: And is that a mandatory sentence?
A: Yes, sir.
(Emphasis added.) Peterson reiterated these assertions
during cross-examination.
Building on Peterson’s statements, AUSA Trgovich
affirmatively represented to the jury several times that
Peterson would be subject to a mandatory minimum
sentence of 10 years. At the beginning of the government’s
closing statement, he noted that Peterson had signed a
plea agreement. He continued,
But what is Tramayne Peterson looking at? And he
told you. He’s looking at a mandatory minimum
sentence, mandatory means common meaning has to
be imposed, and minimum means this is the lowest
he can get, ten years. So Tramayne Peterson was
not given a pass for his testimony. He’s not walking
away at the end of the day free. He’s gotten years.
6 No. 05-4679
Trgovich reinforced the notion that the sentence could not
be less than 10 years by noting in his closing that “It would
be agreed that a ten-year sentence is something. It’s
not—not facing anything,” and in his rebuttal by remark-
ing, “a mandatory sentence of ten years is not a great
deal.”
In fact, contrary to AUSA Trgovich’s statements, there
was nothing immutable about the 10-year term reflected in
Peterson’s plea agreement. As any prosecutor well knows,
the government has the power to move for a reduction
below the statutory minimum. And that is what it did. At
Peterson’s sentencing hearing, AUSA Trgovich himself
joined in a motion requesting the court to give a sentence
below the mandatory minimum based on the substantial
assistance that Peterson had rendered to the government.
See U.S.S.G. § 5K1.1 (“Upon motion of the government
stating that the defendant has provided substantial
assistance in the investigation or prosecution of another
person who has committed an offense, the court may
depart from the guidelines.”). The court accepted the
government’s motion and calculated a new guideline range
of 70 to 87 months. The court then sentenced Peterson to
70 months in prison, four years and two months shorter
than the “mandatory” length the prosecutor had stressed
at Morris’s trial.
Morris finds three separate reasons why this course of
events entitles him to a reversal of his conviction. First, he
claims that the AUSA improperly bolstered Peterson’s
testimony, by giving the jury the erroneous impression
that Peterson no longer had a motive to lie. Second, Morris
argues that the prosecutor’s failure to disclose the gov-
ernment’s intention to request a sentence below 10 years
violated his Sixth Amendment rights by depriving him of
the opportunity to impeach Peterson’s testimony fully.
Finally, he argues that if Peterson’s testimony had been
presented in the proper light, the jury would have dis-
No. 05-4679 7
counted it so thoroughly that the remaining evidence
would have been insufficient to convict.
We agree with Morris that AUSA Trgovich’s comments
amounted to prosecutorial misconduct. Although the
government argues to this court that its comments at trial
were meant only to suggest that Peterson thought that
he was facing an irreducible ten-year sentence, and
maybe that is what the prosecutor intended to say, in fact
he said much more. He told the jury flatly that there was
no way that Peterson could get less than 10 years in
prison, emphasizing that “mandatory means . . . has to be
imposed, and minimum means this is the lowest he can
get, ten years.” This goes beyond any comment about
what Peterson’s understanding of his plea agreement was,
and we make no comment on how we would regard a
statement limited to something like “Mr. Peterson told
you that he understands he will spend at least ten years
in prison.”
No competent Assistant U.S. Attorney is unaware of the
existence of U.S.S.G. § 5K1.1. Trgovich plainly knew that
it was within the government’s discretion to ask the judge
to impose a sentence below the normal statutory mini-
mum, if Peterson lived up to his end of the plea agree-
ment—that is exactly what wound up happening. It was
therefore improper both to give the jury the impression
that Peterson’s sentence could not go below 10 years
during his examination of Peterson, and then later to
argue the same thing to the jury, at least when it is
obvious that the United States had not firmly rejected
the possibility of the § 5K1.1 motion.
As the Supreme Court’s decision in Giglio v. United
States, 405 U.S. 150 (1972), makes clear, this kind of
conduct strikes at the heart of the integrity of the trial.
There, the Court faced a case where the government had
failed to disclose an alleged promise made to its key
8 No. 05-4679
witness that he would not be prosecuted if he testified
for the government. The Supreme Court reiterated that
“rudimentary demands of justice” are violated when “ ‘the
State, although not soliciting false evidence, allows it to
go uncorrected when it appears.’ ” Id. at 153, citing Napue
v. Illinois, 360 U.S. 264, 269 (1959). Here, the prosecutor’s
misleading statement ran the risk of facilitating untruth-
ful testimony from Peterson, and it deprived Morris of
potential impeachment evidence in violation of Giglio. See
also Braun v. Powell, 227 F.3d 908, 920 (7th Cir. 2000).
The possibility of a lower sentence, awarded in part
precisely because of the assistance he was providing at
Morris’s trial, provided an incentive for Peterson to say
whatever the prosecutor wanted to hear.
Because we have concluded that prosecutorial miscon-
duct occurred here, we must go on to consider whether “in
light of the record as a whole . . . the comments deprived
the defendant of a fair trial.” Castillo, 148 F.3d at 775. The
Supreme Court has announced two different standards
to employ in deciding whether improper comments
were material. The easier standard for the defendant to
meet, which is used where the prosecutor knowingly
relies on false testimony, requires “the conviction [to] be
set aside ‘if there is any reasonable likelihood that the
false testimony could have affected the judgment of the
jury.’ ” Braun, 227 F.3d at 920 (quoting United States v.
Agurs, 427 U.S. 97, 103 (1976)).
Even under this favorable standard (which, we add, is
not necessarily the best fit here), we cannot conclude on
this record that AUSA Trgovich’s improper comments
were material and therefore deprived Morris of a fair trial.
The picture the jury had before it of Peterson’s plea
agreement made it aware that he was receiving a sub-
stantial benefit for his testimony and, more importantly,
that he had strong incentives to please the government.
Peterson revealed to the jury that in exchange for his
No. 05-4679 9
testimony, the government would drop two of the charges
(Counts II and III) and would ask the court to give him a
sentence at the bottom end of the guideline range. In
addition, the court stressed that the jury would have
to evaluate Peterson’s credibility carefully. Although the
jury might have recognized the potential for an addi-
tional reduction in Peterson’s sentence as a marginally
greater incentive for Peterson to tailor his testimony in
favor of the government, the information that the jury
had before it was not different enough to lead us to be-
lieve that there was a “reasonable likelihood” that the
result would have changed. See Giglio, 405 U.S. at 154.
Morris’s final argument about the prosecutor’s em-
phasis on the statutory mandatory minimum focuses on
the sufficiency of the evidence. Morris argues that had
Peterson’s bias been correctly stated the jury would have
found his testimony otherwise so internally contradic-
tory as to be unbelievable. Finding Peterson’s testimony
unbelievable, Morris continues, the jury would not have
had sufficient evidence to link Morris to the drugs.
We need not belabor this point. It is enough to point out
that the jury was entitled to disbelieve Peterson when he
said that he did not know what was in the bag that
Morris thrust on him at the moment of the encounter
with the police. Juries pick and choose what to believe,
not only from witness to witness, but also from statement
to statement by one witness. This jury was entitled to
conclude that Peterson was lying about that detail, but
that the general picture he portrayed was true. The
government’s theory was that once Peterson discovered
the drugs, he intended to return them to Morris when that
became feasible, which is why he initially kept carrying
them as he ran. There is nothing in Peterson’s testimony
so internally inconsistent that the jury was compelled
to disregard it. Looked at as a whole, the evidence was
easily sufficient to support Morris’s conviction.
10 No. 05-4679
A great deal of additional evidence linked Morris to the
contents of the bag and to the crime. First, Drug Enforce-
ment Agency (DEA) fingerprint specialist Joseph V.
Ambrozich testified that he matched Morris’s fingerprint,
but not Peterson’s, to one of the two fingerprints found on
the drug scale that fell out of the grey bag while Peterson
was running. Second, James Cronin, a special agent with
the Bureau of Alcohol, Tobacco, Firearms, and Explosives,
testified that the firearm that fell out of the grey plastic
bag was purchased by LaToya Brown. Peterson testified
that Morris had said that “LaToya [Brown] had left it in
the van that day, earlier that day at a friend’s.” In addition
to Peterson’s testimony linking Brown to Morris, East
Chicago Police Officer Robert Aponte also testified that
Brown had come into the police station to retrieve her
cell phone, which had been left in Morris’s van. Finally,
as Officer Aponte testified, during the execution of a
search warrant unrelated to Morris’s case, the East
Chicago police discovered a letter from Morris to one Biffy
Mack, in which Morris referred to the crime. He puffed,
I got this shit beat my cousin got caught with the shit
I’m going to trial I’ve been taking care of him and gave
him the Delta so he won’t flip flop on me. But he cool
now since they indicted us with a simple possession
and firearms charge and he any facing shit if he cop
out to count 1 possession and they drop his other
firearms charge.
Given this additional evidence against Morris, we are
confident that nothing in the treatment of Peterson as a
witness undermined the sufficiency of the evidence sup-
porting the verdict.
2. Admission of the bench warrant for Morris’s arrest
Morris’s second set of arguments stems from the district
court’s decision to allow the introduction of testimony
No. 05-4679 11
about the existence of a bench warrant for his arrest.
Officer Valdez testified briefly about the bench warrant.
He described noticing “the defendant in a white van
coming towards me. We passed each other up. I remember
seeing the defendant’s picture in the squad room during
a briefing that day, and I noticed he was wanted for an
active bench warrant.” The officer also mentioned that he
“contacted dispatch to make sure the warrant was still
active and to confirm the warrant.” In closing argument,
the prosecutor referred to the warrant to explain why
Morris wanted the bag with the drugs and gun out of the
van:
[H]e further had to know that he was in all likelihood
that he was stopped because of the warrant that
was outstanding for him. And when you’re stopped for
a warrant, you’re going to be arrested, which means
the van is going to be towed, and searched. And what
was in the van would have been discovered.
Morris argues that the admission of this evidence led to
two errors. First, he claims that the testimony about
the bench warrant exacerbated the alleged lack of evid-
ence tying him to the drugs and allowed the jury to con-
vict him based only on the assumption that he was a
habitual offender and a fugitive from the law. Morris also
submits that the prosecutor’s references to the bench
warrant in his closing argument were unfairly prejudicial.
The court’s decision to admit references to the bench
warrant is reviewed for abuse of discretion. See United
States v. Hale, 448 F.3d 971, 985 (7th Cir. 2006). The
government is barred by FED. R. EVID. 404(b) from intro-
ducing evidence of a defendant’s bad acts in order to show
that he acted on the occasion in question in conformity
with his bad character. Evidence of a prior bad act may
be admitted, however, when that act is “so ‘inextricably
intertwined’ with, or ‘intricately related’ to, charged
12 No. 05-4679
conduct that it helps the fact finder form a more complete
picture of the criminal activity.” Hale, 448 F.3d at 985.
Like all evidence, the bench warrant cannot be admitted
into evidence if it is substantially more prejudicial than
probative. FED. R. EVID. 403; see also Old Chief v. United
States, 519 U.S. 172 (1997).
The district court did not abuse its discretion in admit-
ting the officer’s testimony about the bench warrant. The
testimony about the warrant was not introduced to “prove
that [Morris] is a person of bad character and likely
therefore to have committed the crime of which he is
accused in the present case.” United States v. Paladino,
401 F.3d 471, 474-75 (7th Cir. 2005). The district court
reasonably concluded that this testimony supplied a
necessary part of the government’s case. Without it, the
prosecution could not have explained why Officer Valdez
stopped Morris’s van. Later, the prosecutor suggested to
the jury that this testimony helped to explain Morris’s
motivation for telling Peterson to flee from the van. The
district court was well within its discretion to strike the
balance for purposes of Rule 404 where it did.
3. Additional claims of prosecutorial misconduct
Morris also alleges that the prosecutor committed
misconduct by “vouching” for Peterson’s truthfulness.
Morris did not object to this argument at trial, and so we
review only for plain error under FED. R. CRIM. P. 52(b).
See United States v. Clarke, 227 F.3d 874, 884 (7th Cir.
2000). For reversal, there first must be “(1) ‘error,’ (2) that
is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ”
Johnson v. United States, 520 U.S. 461, 467 (1997) (quot-
ing United States v. Olano, 507 U.S. 725, 732 (1993)).
Moreover, reversal is not automatic if those three elements
are established. In addition, before overturning a convic-
tion we must find that “the error seriously affect[s] the
No. 05-4679 13
fairness, integrity, or public reputation of the judicial
proceedings.” Johnson, 520 U.S. at 467 (quoting United
States v. Young, 470 U.S. 1, 15 (1985)) (internal quotation
marks omitted).
The rule against a prosecutor’s vouching for a witness
actually encompasses two different kinds of comments:
first, “a prosecutor may not express her personal belief
in the truthfulness of a witness,” and second, “a prosecutor
may not imply that facts not before the jury lend a wit-
ness credibility.” United States v. Thornton, 197 F.3d
241, 252 (7th Cir. 1999). Morris claims only that an error
of the first type occurred here.
He focuses on two of the AUSA’s comments, both made
in closing argument. In the first one, the prosecutor said
that “[t]here was some reference as to what the govern-
ment wants to hear. The government always, and only
wants to hear the truth from cooperators. That’s why
in their plea agreement, as defendant Peterson told you,
if he does not tell the truth, he loses his plea agreement.”
We have held on many occasions that the prosecutor “is
entitled to get into evidence the fact that the [plea] deals
are conditioned upon truthful testimony.” Thornton, 197
F.3d at 255. The comments made here, focusing on the
incentives provided by defendant’s plea agreement for
him to tell the truth, resemble a similar argument about
a plea agreement that we accepted in United States v.
Renteria, 106 F.3d 765, 766-67 (7th Cir. 1997). There, we
concluded that “the prosecutor was free to invite the jury
to draw a particular inference from [the plea agreement].
Defense counsel was free to urge a competing inference, as
he did on numerous occasions. By arguing as they did, both
sides respected the jury’s ability to evaluate credibility
based on the facts in evidence.” Id. at 767 (internal
citations omitted). That is all the prosecutor did here, and
thus he did not in this respect cross any forbidden line.
14 No. 05-4679
Later, the prosecutor addressed Peterson’s testimony
that he just had “rolled marijuana” when Officer Valdez
pulled the van over:
Certainly at his plea hearing and here, he said he was
rolling—he didn’t say he was smoking, he testified he
was rolling, okay? If [Peterson] was not telling the
truth, and he was sworn here, that doesn’t help his
case, doesn’t help you believe that—believe him,
because it’s something that he didn’t say before. But
he’s sworn to tell the truth after his plea, and he’s
took an oath here to tell the truth. If he’s making
this all up, why would he add that fact? How does
it help him? It doesn’t. It’s his effort to be totally
candid and truthful about what happened on
August 15th in the van.
This longer comment is a somewhat closer call, but in
context we find no impermissible vouching. In addition to
reiterating the incentives Peterson had for telling the
truth, the prosecutor’s statement addresses Peterson’s
inclusion in his testimony of the fact that he had been
rolling marijuana. Marijuana, of course, is a controlled
substance, and Peterson admitted to possessing some for
personal use in his testimony. It was fair, we think, for
the AUSA to suggest that Peterson had no reason to
include that detail if he was not being truthful. In making
this comment, the prosecutor’s characterization was “based
on what was in the record, not upon the prosecutor’s own
personal belief.” Clarke, 227 F.3d at 884. There was no
prosecutorial misconduct based on vouching.
Morris’s final argument for prosecutorial misconduct
is that the prosecutor commented on the defendant’s
failure to take the stand by saying in his opening state-
ment that “at the end of the day, there is probably not
going to be too much contested about this.” This state-
ment addressed the facts established by the testimony
No. 05-4679 15
of the three officers who stopped and arrested Peterson
and Morris. The prosecutor was not commenting on the
defendant’s testimony or lack thereof. (In fact, there was
not much contested about the traffic stop, as Morris’s
defense did not contest the events testified to by the
officers. Instead, Morris’s defense was that the drugs and
firearm belonged to Peterson.) We find no error here, much
less plain error.
4. Evidence that the drugs were crack
Morris’s fourth set of arguments center on the gov-
ernment’s supposed failure to prove that the drugs in
question consisted of “50 grams or more of a mixture or
substance . . . which contains cocaine base.” 21 U.S.C.
§ 841(b)(iii). He submits that the government never
sufficiently proved that the drugs in question were crack
cocaine, rather than some other form of cocaine. Because
he failed to object at trial, once again the standard of
review is plain error.
Morris’s first argument is that there was insufficient
evidence to find that the drugs in question were crack.
This is ground that we have often covered in other opin-
ions. In United States v. Edwards, 397 F.3d 570, 573-76
(7th Cir. 2005), we held that the term “cocaine base” for
purposes of § 841(b) borrows the definition contained in
U.S.S.G. § 2D1.1. Under § 2D1.1, “ ‘Cocaine base’ . . .
means ‘crack.’ ‘Crack’ is the street name for a form of
cocaine base, usually prepared by processing cocaine
hydrochloride and sodium bicarbonate, and usually
appearing in a lumpy, rocklike form.” U.S.S.G. § 2D1.1(c),
Note D. This definition distinguishes between both pow-
der cocaine (cocaine hydrochloride) and cocaine bases
and also between crack cocaine and other forms of cocaine
base. As we noted in Edwards, “All crack is cocaine base
but not all cocaine base is crack.” 397 F.3d at 571.
16 No. 05-4679
Obliquely relying on our decision in Edwards, Morris
argues that the government’s expert relied on the defini-
tion of crack contained in the sentencing guidelines
rather than on a scientific definition differentiating vari-
ous forms of cocaine base. See 397 F.3d at 572-73. In
Edwards, however, the defense produced expert testi-
mony indicating that the samples tested “revealed none
of the telltale signs of crack; among other things, the
substances did not exhibit the color or form that results
from the process of mixing cocaine hydrochloride (powder
cocaine) with sodium bicarbonate to produce crack.” Id.
at 573. As a result, the district court concluded that
while the substance at issue was cocaine base it was not
crack, and the mandatory minimum did not apply.
This case is unlike Edwards, because the government
produced substantial evidence that the drugs in question
were crack and the defendant produced no evidence to the
contrary. Cf. Booker, 260 F.3d at 823-24; United States v.
Abdul, 122 F.3d 477, 478-80 (7th Cir. 1997). Morris focuses
on the fact that the prosecution’s expert, DEA Agent
Fuelster, described one of the three different drug exhibits
as “cocaine hydrochloride,” which is the scientific name
for the acid form of cocaine (usually found in powder
form). The transcript as a whole, however, reveals this to
be a simple misstatement. Agent Fuelster later said in
response to the prosecutor’s specific question about that
exhibit that his tests revealed that the substance in
question was cocaine base, as were the other two ex-
hibits that he tested.
Other evidence corroborated the fact that the drugs
in question were crack cocaine and not some other form of
cocaine base. Agent Fuelster himself noted that “the
material, as I received it, was kind of wet, which is not
uncommon for crack.” Officer DeVilla reinforced this
point, testifying that he recovered from one spot “twelve
individual rock-like substances that were wrapped individ-
No. 05-4679 17
ually in clear plastic bags,” and from another “nine smaller
bags of a yellowish-white, rock-like substance. . . . And
there was a large amount of a white, yellowish-rock
material inside.” An agent from the DEA’s crime lab
described the usual method for packaging crack and opined
that the crack cocaine in this case “was packaged for
distribution.” Finally, Officer Aponte testified that the
drugs that were recovered were “packaged for distribution”
as crack cocaine. The evidence, in short, left no doubt that
the substance was crack cocaine. This means both that
there was no problem of insufficiency of the evidence, and
that counsel was not ineffective for failing to argue more
strenuously that the substance was not crack.
5. Other sentencing errors
After Booker, the proper calculation of the guideline
range is the first step in imposing a reasonable sentence.
See United States v. Mancari, 463 F.3d 590, 597 (7th Cir.
2006). Morris makes two objections to the calculation of his
guideline range on Count I. His first objection (which he
failed to raise at trial, and thus is subject to plain error
review) is that his acquittal on the charge of violating
§ 924(c) precluded the court as a matter of law from
imposing the two-level enhancement on Count I for
possession of a firearm under U.S.S.G. § 2D1.1(b)(1). This
argument was not good before Booker and it has not
grown better with time. As was true pre-Booker, “[c]on-
duct underlying an acquitted charge may be included as
long as that conduct is proved by a preponderance of the
evidence.” United States v. Frith, 461 F.3d 914, 917 (7th
Cir. 2006). Our account of the facts earlier also demon-
strates that there was ample evidence to support the
district court’s finding that Morris at least constructively
possessed the gun.
18 No. 05-4679
Morris’s second objection is to the district court’s calcula-
tion of his criminal history. He decries the fact that most
of his criminal history points come from misdemeanor
traffic offenses, arguing that only 5 of the 15 criminal
history points come from serious felony offenses. That
may be, but Morris identifies no error in the court’s
calculation of his criminal history. If all he means is that
the ultimate sentence was unreasonable, we can review
the court’s decision. The judge specifically addressed the
question whether the nature of Morris’s prior offenses
made the recommended guideline sentence unreasonable.
She found that they were “serious crimes” and that “the
sentence guidelines properly take account of that.” Particu-
larly in light of Rita v. United States, 127 S.Ct. 2456(2007), which allows appellate courts to apply a non-
binding presumption of reasonableness to a guidelines
sentence that a district court has freely chosen, we see no
reason why this sentence was flawed.
The only problem that requires correction is Morris’s
sentence on Count II. The court imposed a concurrent
sentence of 262 months on that count, which charged
Morris with possession of less than 50 kilograms of
marijuana with intent to distribute. The 262-month term
is above the 10-year statutory maximum for an individual
with a prior conviction for a felony drug offense. See 21
U.S.C. § 841(b)(1)(D). As a result, this count must be
remanded to the district court so that it can impose a new
sentence that complies with the statute.
* * *
We REMAND the case to the district court for re-sentenc-
ing on Count II. In all other respects, we AFFIRM the
judgment of the district court.
No. 05-4679 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-20-07