NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 14, 2010
Decided March 21, 2011
Before
RICHARD A. POSNER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 10‐1638
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of Illinois
Plaintiff‐Appellee, Eastern Division.
v. No. 08 CR 1016 ‐ 1
GLENN D. SMITH David H. Coar,
Defendant‐Appellant. Judge.
O R D E R
Glenn Smith appeals his conviction for possessing a firearm as a convicted felon and
his 120‐month prison sentence for distributing more than five grams of crack cocaine. He
argues that the evidence of his constructive possession of a shotgun was insufficient to
support the firearm conviction and that his sentence for the drug charge violates the Fair
Sentencing Act and the Eighth Amendment. We affirm.
A confidential informant who was wearing a wire while working with the Bureau of
Alcohol, Tobacco, Firearms and Explosives bought 10.9 grams of crack cocaine from Mr.
No. 10‐1638 Page 2
Smith. He asked Mr. Smith for a gun,1 and Mr. Smith replied that the informant would
have to go to Mr. Smithʹs “crib,” where Mr. Smithʹs “girl” would give him one. Mr. Smith
then gave the informant his address and telephoned someone he said was his girlfriend,
saying to her that the informant would swing by to grab the “gun in the closet . . . [i]n the
pillow case.” Mr. Smith told the informant that the gun was a Mossberg, and that the
informant could borrow it until Mr. Smith provided him with a .38 caliber handgun instead.
The informant paid Mr. Smith $500 before Mr. Smith drove away. ATF agents promptly
arrested him.
Meanwhile, the informant, still wearing a wire, went to the address Mr. Smith
provided, where he spoke with a woman who gave him a loaded Mossberg shotgun that
was hidden inside a pillow. When the informant first arrived, the woman asked where “he”
was, but did not specify to whom she was referring. Before leaving, the informant asked the
woman if she wanted him to return the pillow, but she declined, saying, “that’s what
[unintelligible] put it in.”
A grand jury indicted Mr. Smith for distributing more than 5 grams of crack cocaine,
21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm,
18 U.S.C. § 922(g)(1). After
a two‐day trial, during which the government introduced the recordings of the informant’s
conversations with Mr. Smith and the woman who provided the shotgun, the jury convicted
Mr. Smith on both counts. The district court calculated Mr. Smith’s guidelines sentencing
range for both counts to be 110‐137 months because the crimes were grouped and thus
shared the gun charge’s total offense level of 26, the higher of the two. See U.S.S.G. § 3D1.4.
The court sentenced Mr. Smith to 120 monthsʹ imprisonment for the drug charge, which was
the statutory minimum because he had a prior felony drug conviction,
21 U.S.C. §
841(b)(1)(B)(iii), and 110 monthsʹ imprisonment for the gun charge, to be served
concurrently. The judge stated that, if not for the mandatory minimum, he would have
imposed a lesser sentence for the drug charge to offset the disparity between penalties for
crack and powder cocaine. Mr. Smith moved for a post‐trial judgment of acquittal arguing
several issues, none of which is renewed here. The district court denied the motion.
1
The transcripts of the recording state that the informant asked Mr. Smith about
getting a “gap,” which, the government suggests, may have actually been the word “gat,” a
common slang word for a gun. But the word “gap” may refer to the Glock Automatic Pistol
(“GAP”), and is also a slang word for any type of firearm. See, e.g., People v. McGee, No.
B159037,
2003 WL 21995446 at *4 n.4 (Cal. Ct. App. Aug. 22, 2003) (quoting a prosecutorʹs
closing argument explaining the slang term “heated” means, “I got a gap. I got a gun.”)
No. 10‐1638 Page 3
On appeal Mr. Smith first argues that his firearm conviction should be reversed
because the evidence showed only that the woman, and not he, possessed the shotgun. But
constructive possession satisfies the possession element of § 922(g)(1), United States v. Harris,
587 F.3d 861, 866 (7th Cir. 2009); United States v. Morris,
576 F.3d 661, 666 (7th Cir. 2009), cert
denied
130 S. Ct. 1313 (2010), and the government presented evidence sufficient to support
Mr. Smith’s constructive possession of the Mossberg. “A defendant constructively possesses
an item if he has the power and the intent to exercise dominion or control over the object,
either directly or through others.” United States v. Hampton,
585 F.3d 1033, 1040‐41 (7th Cir.
2009). Here, Mr. Smith placed a phone call instructing someone to give the informant a gun
that was hidden in a pillowcase. He then directed the informant to a residence where, he
said, his girlfriend would give the informant a Mossberg shotgun. As promised, the
informant received a Mossberg shotgun in a pillowcase from a woman at the address Mr.
Smith provided. This circumstantial evidence was ample to support the jury’s conclusion
that Mr. Smith exercised control over, and thus constructively possessed, the shotgun. See
United States v. Morris,
349 F.3d 1009, 1014 (7th Cir. 2003).
Next, Mr. Smith argues that his 120‐month mandatory minimum sentence for crack
distribution was unlawful under the Fair Sentencing Act, which Congress passed after he
was sentenced. Compare
21 U.S.C. § 841(b)(1)(B)(iii) (2008) with
21 U.S.C. § 841(b)(1)(B)(iii)
(2010). If Mr. Smith were sentenced today, he would not be subject to the mandatory
minimum sentencing provision because his offense involved less than 28 grams of crack. See
21 U.S.C. § 841(b)(1)(C) (2010). But we recently held that retroactive application of the FSA
is barred by the general federal savings statute,
1 U.S.C. § 109: “The repeal of any statute
shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred
under such statute, unless the repealing Act shall so expressly provide.” See United States v.
Bell,
624 F.3d 803, 815 (7th Cir. 2010) (“[T]he FSA does not contain so much as a hint that
Congress intended it to apply retroactively.”) Our sister circuits have reached the same
conclusion,2 and Bell governs this case. The FSA does not apply retroactively; Mr. Smith’s
mandatory minimum sentence of 120 months for crack distribution was lawful.
Finally, Mr. Smith argues that his mandatory minimum sentence of 120 months on
the drug count is grossly disproportionate to the crime of distributing 10.9 grams of crack
and thus constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Although we rejected an Eighth Amendment challenge to the mandatory sentences for crack
in 1994, United States v. Smith,
34 F.3d 514, 525 (7th Cir. 1994), Mr. Smith contends that we
should change course because the enactment of the FSA shows that society’s “standards of
2
See United States v. Lewis,
625 F.3d 1224, 1228 (10th Cir. 2010); United States v.
Brewer,
624 F.3d 900, 909 n.7 (8th Cir. 2010); United States v. Gomes,
621 F.3d 1343, 1346 (11th
Cir. 2010); United States v. Carradine,
621 F.3d 575, 580 (6th Cir. 2010).
No. 10‐1638 Page 4
decency” have evolved such that his mandatory sentence imposed under the old statutory
scheme is cruel and unusual. But the Eighth Amendment does not require that the crime
and sentence be strictly proportional; rather it “forbids only extreme sentences that are
‘grossly disproportionate’ to the crime.” Harmelin v. Michigan,
501 U.S. 957, 1001 (1991). Mr.
Smith’s 120‐month sentence was not grossly disproportionate because it was within his
guidelines range of 110‐137 months and the district court did not abuse its discretion in
sentencing him to the then‐binding statutory minimum. See United States v. Olson,
450 F.3d
655, 686 (7th Cir. 2006).
For the foregoing reasons, we AFFIRM.
