United States v. Upton, Tavon A.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1456

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TAVON A. UPTON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05-CR-30115—William D. Stiehl, Judge.

____________

ARGUED OCTOBER 26, 2007—DECIDED JANUARY 9, 2008

____________

Before POSNER, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. A confidential informant told

the St. Clair County Sheriff ’s Drug Tactical Unit (“DTU”)

that she could purchase crack cocaine from defendant-

appellant Tavon A. Upton at his home in Cahokia, Illinois.

On July 9 and July 15, 2003, under police supervision,

she did just that. Using the evidence from these con-

trolled buys, Investigator Timothy Bedard applied for

a warrant to search Upton’s home and, on July 16, 2003,

Bedard and members of the DTU executed the warrant.

When he saw the DTU approaching, Upton bolted, discard-

ing two baggies containing cocaine base and cocaine as

he ran. The police soon caught up, arrested him, and

drove him—literally kicking and screaming—to the

2 No. 07-1456

police station, where he confessed to selling drugs out of

his house. The search of Upton’s home—producing an

assortment of drug paraphernalia, digital scales, two

knives, and a .380 caliber handgun—confirmed his con-

fession.

An indictment followed and, on April 26, 2006, convic-

tions for one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) and one count

each for possessing with intent to distribute cocaine

base and cocaine in violation of 21 U.S.C. § 841(a)(1).

The district court then sentenced Upton to 288 months’

imprisonment, a 5-year term of supervised release, a

special assessment, and a fine. Upton now appeals,

challenging the admissibility of his confession, an officer’s

expert testimony given at trial, the jury instructions,

and his enhanced sentence for being a career criminal.

Finding no error, we affirm both his convictions and his

sentence.

I. Background

A. Factual History

In July 2003, a confidential informant learned that

Upton had been selling crack cocaine out of his home

in Cahokia—a city in southwest Illinois on the border

with Missouri—and contacted Officer Timothy Bedard.

Officer Bedard was an officer in the Cahokia Police

Department and the St. Clair County Sheriff ’s Drug

Tactical Unit (“DTU”). On July 9 and again on July 15,

2003, under Bedard’s supervision, the confidential infor-

mant engaged in two controlled buys of crack cocaine out

of Upton’s home. Using the information from these buys,

Bedard obtained a search warrant for Upton’s address

and, the next day, Bedard and several other members of

the DTU executed the warrant. When the DTU pulled up

No. 07-1456 3

to his home, Upton was standing in his driveway. Rightly

guessing that the approaching battalion of police in riot

gear was not a good sign, he took off running. The police

caught him and recovered two plastic bags, containing

what the police later determined to be 4.4 grams of co-

caine and 4.8 grams of cocaine base.

For his part, Upton was not the model arrestee. While

Bedard was initially reading him his Miranda rights,

Upton began yelling that he was not going to return to

prison. During the ensuing frisk, he became more ag-

gressive, refusing to cooperate with the police and pulling

away from and even kicking at the officers. And when

the officers tried to put him in the squad car, he resisted

their efforts—though they eventually succeeded.

Another Cahokia police officer, Phillip Taylor, and his

partner then drove Upton to the police station. On the

way, Upton’s antics only worsened. After only a few blocks,

he began kicking the squad car’s side window and door

with both feet, eventually causing the door and window to

bow out. Taylor stopped the car, opened the door, and

attempted to pacify Upton, but to no avail. Seemingly at

a dead end, Taylor delivered what’s called a “palm strike”

in an effort to get Upton back in the car.1 He was not

aiming for Upton’s nose—he testified that he was trying

to hit Upton’s torso. But when Upton lowered his head

mid-strike, that’s where his palm landed. Though errant,

the move was successful. Upton abandoned his efforts

to leave the car, and Taylor was able to close the door

and continue on. After his booking, Taylor then tended to

a cut on Upton’s nose (the “palm strike” had produced a

small laceration), which stanched the bleeding.

1

A “palm strike” is an open-palmed punch in which the bottom

part of the palm makes contact with the intended recipient. See

generally Strike (attack), WIKIPEDIA, Nov. 20, 2007, http://

en.wikipedia.org/wiki/Strike_(attack).

4 No. 07-1456

A few minutes later, another Cahokia police officer,

Deputy Bill Kenny, transported Upton to the St. Clair

County Jail. On the way, Upton told Deputy Kenny that

he wanted to work as an informant for another Cahokia

police officer whom Upton knew, Detective Kurt Evers-

man. The conversation did not go much further, and

Kenny delivered Upton to the county jail.

While all this was going on, Bedard and the DTU had

been searching Upton’s residence. The fruits of the

search confirmed suspicions that Upton had been dealing

drugs: marijuana recovered from the kitchen and Upton’s

truck; cocaine from a kitchen cabinet; a digital scale

with residue on it; boxes of plastic bags; bottles of prescrip-

tion drugs not prescribed to Upton; a .380 caliber Tanfoglio

firearm and ammunition; a police radio scanner; a large

knuckle-knife with a steel-spiked handguard; and a

switchblade. Bedard inventoried what the DTU had

found and went to the county jail to question Upton.

Bedard, Detective Eversman, and another officer con-

ducted the interview. Bedard first read Upton his Miranda

rights a second time, but Upton refused to sign an ac-

knowledgment form. Still, Upton answered the officers’

questions, repeating his earlier offer to cooperate with the

police in exchange for a lowered sentence. Upton then

proceeded to make several incriminating statements. He

confessed to selling drugs out of his home in order to

support his child. And he also explained that he was

a user; in fact, he had smoked crack just before his

arrest, perhaps explaining his outburst in the squad car.

When confronted with the fact that the police had re-

moved a .380 caliber gun from his home, Upton admitted

that he had handled it, but said that it belonged to a

friend. At trial, the officers would testify that Upton was

composed throughout the interview, and he did not

give any outward indication that he was still in pain

from his cut nose. Despite his apparent cooperation, at

No. 07-1456 5

the end of the interview Upton refused to sign a written

statement memorializing his confession.

Upton never did end up identifying other drug dealers,

and on April 5, 2006, a grand jury returned a five-count

indictment against Upton charging (i) possession of a

firearm by a felon in violation of 18 U.S.C. § 922(g)(1); (ii)

possession of cocaine base with intent to distribute

in violation of 21 U.S.C. § 841(a)(1); (iii) possession of

cocaine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1); (iv) possession of a firearm in relation to

a drug-trafficking offense in violation of 18 U.S.C.

§ 924(c)(1); and (v) forfeiture of the firearm involved in a

drug-trafficking offense pursuant to 18 U.S.C. § 924(d).

B. Procedural History

Prior to his trial, Upton sought to suppress his post-

arrest statements, claiming that his Miranda waiver had

not been voluntary. To shore up his claim, Upton pointed

to his injured nose and his refusal to sign a Miranda

waiver. After briefing and a hearing, the district court

denied Upton’s motion. The court found that Upton had

been “combative and uncooperative” and that he had

received his bloodied nose “as a result of his behavior

during his arrest and transportation to the Cahokia

Police Department,” not due to police overreaching.

Further, Upton’s efforts “to help himself by cooperating,

essentially to stay out of jail” overshadowed any infer-

ence of police overreaching that could be drawn from a

refusal to sign the Miranda waiver.

At trial, the government would prove its case against

Upton through the testimony of the various officers

involved in Upton’s arrest, Upton’s confession, and the

physical evidence seized from his home. Upton objected

to the fact that Officer Eversman would testify as both

6 No. 07-1456

an expert and a lay witness. Eversman had expertise on

the drug trade, such as the use of firearms in drug traf-

ficking, the tools of the trade, and why the amount of

drugs seized from Upton’s home indicated an intent to

distribute. But he would also testify as a lay witness

regarding Upton’s confession, the controlled buys, the

execution of the search warrant, and the particulars of

Upton’s arrest. Upton was concerned that the jury would

not be able to separate the two kinds of testimony and

noted this potential prejudice to the court. To obviate

any prejudice, the government agreed to clearly separate

Everman’s expert and lay testimony. In addition, prior

to his testimony, the court instructed the jury that “Lieu-

tenant Eversman will testify as both a fact witness and an

expert witness,” to put them on guard. Finally, as prom-

ised by the government, the court took a twenty minute

recess between Eversman’s lay testimony and his ex-

pert testimony.

During Eversman’s expert testimony, Upton objected

to several questions posed by the government, claiming

that they blurred the distinction between lay and expert

testimony or were not helpful to the jury. The court

sustained several objections, concluding that they were

not helpful to the jury or that the government had asked

a question going to fact testimony during Eversman’s

expert testimony. For example, the court sustained an

objection to a question asking Eversman about the con-

tents of Upton’s confession during the expert portion of

his testimony. The court also overruled objections to

questions asking Eversman to comment on particular

pieces of evidence. Thus, the government could not ask

whether the location of the gun seized in the search of

Upton’s home was consistent with the location of fire-

arms in other drug-related premises. And, in a sidebar,

the court limited Eversman’s expert testimony regard-

ing the use of knives by drug dealers, permitting the

No. 07-1456 7

testimony in general terms but not allowing the partic-

ular knives to appear during the testimony.

As trial finished up, the parties moved to instructing

the jury. Upton proposed two lesser-included-offense

instructions of simple possession for both distribution

counts. The district court denied Upton’s request, stating

that the evidence did not support simple possession. On

April 26, 2006, the jury returned its verdict, convicting

Upton of being a felon in possession of a firearm and

both distribution counts, but acquitting him of possessing

the firearm in relation to drug trafficking.

On February 21, 2007, the district court sentenced

Upton to 288 months’ imprisonment and five years’

supervised release. The district court determined that

Upton qualified as an Armed Career Criminal under 18

U.S.C. § 924(e). In so doing, the court was satisfied that

Upton’s prior convictions for aggravated battery, posses-

sion of a sawed-off shotgun, and three instances of domes-

tic battery qualified as predicate offenses, and applied

the enhancement. This appeal followed.

II. Discussion

Upton’s appeal focuses on the district court’s pre-trial

and trial rulings as well as the ultimate sentence imposed.

Specifically, Upton challenges the voluntariness of his

Miranda waiver, the admission of Eversman’s expert and

lay testimony, the district court’s denial of the lesser-

included-offense instructions, and his status as an Armed

Career Criminal. The following sections discuss each in

turn.

A. Voluntariness of Miranda Waiver

On appeal, Upton reiterates his claim that his Miranda

waiver had not been knowing and voluntary and that his

8 No. 07-1456

subsequent confession was thus inadmissible. Upton

argues that the series of events surrounding his nose

injury rendered his Miranda waiver involuntary. He

points to the fact that he was cantankerous immediately

after his arrest, but then became docile after the poorly

landed “palm strike” injured his nose. Although Officer

Taylor treated the cut on his nose, Upton did not receive

any additional medical attention. Nor did a significant

period of time pass between the injury and the interview

in which he confessed. Finally, he points to his refusal

to sign either an acknowledgment of his rights or a writ-

ten statement during the interview.

When viewed in context, there is no indication that any

of this affected Upton’s Miranda waiver. This Court

reviews de novo whether a Miranda waiver was volun-

tary and reviews the district court’s findings of historical

facts for clear error. United States v. Smith, 218 F.3d 777,

780 (7th Cir. 2000). A waiver can be either express or

implied, North Carolina v. Butler, 441 U.S. 369, 375-76

(1979), and is involuntary if the will of the defendant “was

overborne in such a way as to render his confession a

product of coercion.” Spano v. New York, 360 U.S. 315,

320-21 (1959). Waiver can never occur through “mere

silence,” as the Miranda warnings themselves indicate.

Butler, 441 U.S. at 373. But a person can act as though

he has waived his rights without expressly saying so. Id.

Upton impliedly waived his Miranda rights before he

confessed. Granted he did not sign an acknowledg-

ment form after Bedard read him his rights a second time.

But he told the officers that he understood his rights, even

requesting an attorney after he had confessed. And he

did freely talk about the allegations against him, admitting

they were true but attempting to strike a deal. United

States v. Smith, 218 F.3d 777, 781 (7th Cir. 2000)

(“[W]aiver may be inferred from the defendant’s con-

No. 07-1456 9

duct, even when she has refused to sign a waiver form.”).

Thus, Upton understood what the officers had told him,

but cooperated nonetheless, waiving his Miranda rights.

In addition, the circumstances surrounding his arrest

and confession satisfy us that, despite the “palm strike,”

Upton’s waiver was voluntary. Although physical force is

certainly a defining circumstance—and possibly a disposi-

tive one, see Miller v. Fenton, 474 U.S. 104, 109 (1985);

Brown v. Mississippi, 297 U.S. 278 (1936)—its incidental

use can sometimes be excused where the other incidents

to the interview show a voluntary waiver. Holland v.

McGinnis, 963 F.2d 1044, 1050 (7th Cir. 1992). The

relevant inquiry is the totality of the circumstances, which

does not lend itself to a neat list of factors. But in refining

the standard, this Court has looked to gaps in time

between the use of force and the waiver, changed inter-

rogators or location, and renewed Miranda warnings. Id.;

see also Wilson v. O’Leary, 895 F.2d 378, 385 (7th Cir.

1990). We have also looked to the defendant’s back-

ground, experience and conduct. United States v. Huerta,

239 F.3d 865, 873 (7th Cir. 2001).

Upton’s injury resulted in large measure from his

own misconduct, not police efforts to coerce him into

waiving his rights. See Colorado v. Connelly, 479 U.S. 157,

170 (1986) (“Miranda protects defendants against gov-

ernment coercion leading them to surrender rights pro-

tected by the Fifth Amendment; it goes no further than

that.”). From the moment the police caught him, Upton

was a pill. He was physical with the arresting officers

when apprehended, refusing to get back in the car after

the police frisked him and first read him his Miranda

rights. When the police did succeed in getting him in the

car, he began violently kicking the inside, eventually

bowing out the side window and door. Officer Taylor’s

efforts to placate him were only met with more kicks. It

10 No. 07-1456

is understandable that in this context a police officer

would have to resort to some proportionate measure of

force to protect himself or subdue a suspect. This Court

examines the effect of coercion from the perspective of a

“reasonable person in the position of the suspect.” United

States v. Brooks, 125 F.3d 484, 492 (7th Cir. 1997). And a

reasonable person acting as Upton was would not inter-

pret the “palm strike” as the opening salvo in an effort to

overbear his will. The resulting injury to Upton’s nose

is certainly unfortunate, but it did not result from police

overreaching.

In addition, there was a clear break in the chain of

events between the injury and the interview. Holland, 963

F.3d at 1050. After his injury, Taylor took Upton to the

police station, treated his nose, and processed his arrest.

And after that, Officer Kenny drove him to the county

jail where the interview occurred sometime later, con-

ducted by different police officers. The “palm strike” was

just not an aspect of the interrogation in any meaningful

sense. It occurred at a different time, involved different

police officers, and was limited to responding to the defen-

dant’s outburst. Id. (noting relevant factors such as “the

time that passed between confessions, the change in the

place of interrogations, and the change in identity of the

interrogators”). Granted Upton still bore the laceration

from the injury during the interview. But he never re-

quested further medical attention to treat his nose. And,

according to the officers, he had all his wits about him

throughout the interview. Importantly, before he con-

fessed, Upton received a second Miranda warning, appris-

ing him again of his right to be left alone if he wanted. Id.

The effect and circumstances of the injury were simply

too far removed to have affected the voluntariness of

his waiver.

Finally, Upton’s efforts to secure a better deal for himself

show that he had a calculating and not a cowed mind at

No. 07-1456 11

the time of his confession. When traveling with Officer

Kenny to the county jail, Upton first raised the prospect of

cooperating to lessen his criminal exposure. Again during

the interview, Upton raised the possibility of cooperating

with Bedard and Eversman. As the district court found, his

efforts to secure a deal coupled with his refusals to sign a

written confession or an acknowledgment of his rights are

telling. See Smith, 218 F.3d at 781 (“Smith’s refusal to

[sign a waiver form] shows her independent thinking and

exercise of her free will. Her claim thus fails.”). Upton’s

motivation was to stay out of prison, and he took actions

calculated to achieve that goal. We thus affirm the district

court’s denial of Upton’s motion to suppress.

B. Officer Eversman’s Testimony

Upton also argues that several questions posed to Officer

Eversman failed to properly distinguish between his

roles as an expert and lay witness. Upton concedes that

the district court offered a cautionary instruction prior to

Eversman’s testimony and that his attorney probed the

distinction between lay and expert testimony in cross-

examination. But Upton argues that several government

questions failed to highlight the exact capacity in which

Eversman was testifying. For example, he points to

questions posed to Eversman-the-expert concerning what

Upton said after his arrest, a factual issue. The district

court also restricted questions regarding whether the

location of the gun in Upton’s home was consistent

with what Eversman had seen in other drug premises.

Several other questions simply went beyond Eversman’s

capacity as an expert. Although the court sustained several

of his objections, Upton claims these questions polluted the

trial and require reversal.

Whatever potential prejudice may arise from dual ex-

pert and fact testimony, none occurred here. This Court

12 No. 07-1456

reviews a district court’s decision to admit expert testi-

mony for an abuse of discretion. United States v. de Soto,

885 F.2d 354, 359 (7th Cir. 1989). Police officers frequently

testify as expert witnesses on drug trafficking, see, e.g.,

de Soto, 885 F.2d at 359-60; United States v. Gonzales,

933 F.2d 417, 428 (7th Cir. 1991); United States v. Foster,

939 F.2d 445, 451-52 (7th Cir. 1990), and it is “still a

reasonable assumption that jurors are not well versed in

the behavior of drug dealers.” Foster, 939 F.2d at 452.

Thus, expert testimony is helpful in explaining to jurors

why otherwise innocent behavior may be evidence of drug

dealing. See de Soto, 885 F.2d at 360. Or how particular

drug markets function. See United States v. Brown, 7 F.3d

648, 652 (7th Cir. 1993). Or the meaning of code words

used to consummate sales. See United States v. Hughes,

970 F.2d 227, 236 (7th Cir. 1992).

But it is precisely because an expert provides much of

the structure for the jury’s understanding of the drug trade

that courts must be mindful when the same wit-

ness provides both lay and expert testimony. The jury

may unduly credit the witness’s fact testimony given his

status as an expert. Brown, 7 F.3d at 655. Experts fa-

mously possess an “aura of special reliability” surrounding

their testimony. Id. And it is possible that the glow from

this halo may extend to an expert witness’s fact testi-

mony as well, swaying the jury by virtue of his perceived

expertise rather than the logical force of his testimony.

United States v. Doe, 149 F.3d 634, 637 (7th Cir. 1998)

(“This dual role may confuse the jury, which may not

understand its own function in evaluating evidence.”).

Alternately, the jury may unduly credit the opinion

testimony of an investigating officer based on a percep-

tion that the expert was privy to facts about the defendant

not presented at trial. See United States v. Brown, 776

F.2d 397, 401 (2d Cir. 1985) (noting “risk [that] arises

because the jury may infer that the agent’s opinion

No. 07-1456 13

about the criminal nature of the defendant’s activity is

based on knowledge of the defendant beyond the evidence

at trial”). Or the mixture of fact and expert testimony

could, under some circumstances, come close to an expert

commenting on the ultimate issue in a criminal matter.

See FED. R. EVID. 704(b); Brown, 7 F.3d at 651, 653-54;

United States v. Boissoneault, 926 F.2d 230, 233 (2d Cir.

1991).

But none of these forms of possible prejudice arose

in Upton’s case. Before Eversman’s testimony, the dis-

trict court gave a cautionary instruction explaining that

Eversman would be serving both functions as a witness.

de Soto, 885 F.2d at 361-62. Although it is a better

route not to use an investigating officer as an expert

witness in the first place, the government was careful to

distinguish Eversman-the-expert from Eversman-the-lay-

witness. There was a twenty-minute break between the

two types of testimony. And although Upton points to

several questions that were beyond Eversman’s capacity

as an expert, there is no indication that the government

impermissibly mixed factual and expert testimony or

that the government’s mixed questioning was pervasive.

In short, the sharp distinction between fact and expert

testimony and the district court’s cautionary instruc-

tion eliminated any risk of prejudice to the defendant.

The district court was “well aware of its special responsi-

bilities and proceeded with the utmost caution,” de Soto,

885 F.2d at 362, and thus did not abuse its discretion

in admitting Eversman’s testimony.

C. Denied Lesser-Included-Offense Instructions

Upton also argues on appeal that the district court erred

in denying his request for lesser-included-offense instruc-

tions of simple possession. The amount of drugs actually

seized following his arrest—4.4 grams of cocaine and 4.8

14 No. 07-1456

grams of crack—were not so large as to compel a finding of

intent to distribute. The two sales to the confidential

informant also involved only a small amount of crack. And

Upton was a user, or so he admitted to the police follow-

ing his arrest. This evidence, he argues, is consistent with

a finding that he was a simple drug user who had no

intention to distribute, justifying a simple possession

instruction. We disagree.

This Court’s review of a district court’s denial of a lesser-

included-offense instruction has both a legal and a factual

component. The defendant must first establish that the

requested instruction is for an offense necessarily in-

cluded in the one charged. United States v. McCullough,

348 F.3d 620, 624 (7th Cir. 2003); United States v. Boyles,

57 F.3d 535, 544 (7th Cir. 1995) (holding that “necessary”

means that the “elements of the lesser offense are a sub-

set of the elements of the charged offense”). Then the

defendant must show that a rational jury could have

convicted him of the lesser offense, but not the greater. Id.

The district court’s answer to the first question is a legal

one, which this Court reviews de novo; the answer to the

second is based on the district court’s estimate of the

government’s evidence, which we review for an abuse of

discretion. McCullough, 348 F.3d at 624.

The district court properly denied both of Upton’s

requests for simple possession instructions. In the first

place, simple possession of cocaine base is not a lesser-

included offense for possessing a controlled substance

with an intent to distribute. United States v. Steward, 252

F.3d 908, 909 (7th Cir. 2001); United States v. Hill, 196

F.3d 806, 808 (7th Cir. 1999). The government charged

Upton with possessing a controlled substance (namely

cocaine base) with intent to distribute under 21 U.S.C.

§ 841(a)(1), and Upton argued below for a simple posses-

sion instruction based on 21 U.S.C. § 844(a). As a general

matter, the first sentence of § 844(a)—making it “unlawful

No. 07-1456 15

for any person knowingly or intentionally to possess a

controlled substance”—does constitute a lesser-included

offense for the crime of possession with intent to distrib-

ute under section 841(a)(1). Hill, 196 F.3d at 808. But

simple possession of cocaine base falls within the third

sentence of section 844(a), and this section requires the

proof of an element—that the drug was crack—that sec-

tion 841(a)(1) does not. Id. (“The requirement of that

separate crime that the controlled substance be crack is

not an element of the greater offense of possession with

intent to distribute . . . a controlled substance.”); Steward,

252 F.3d at 909 (“We have held that the third sentence

creates a separate crime of possession of crack, which is

not a lesser included offense of possession with intent

to distribute a controlled substance.”). Thus, Upton was

not entitled to a simple possession instruction for the

crack charge because it is not a lesser-included offense of

possession with intent to distribute a controlled substance.

Nor was Upton entitled to a simple possession instruc-

tion for the cocaine count, albeit for a different reason.

Unlike cocaine base, the simple possession of cocaine is

a lesser-included offense to the possession of cocaine

with intent to distribute. See United States v. Puckett,

405 F.3d 589, 600 (7th Cir. 2005). But the government

put forth enough evidence so that no rational jury could

have found him guilty of simple possession and not

possession with intent to distribute. It is true, as Upton

argues, that the amount of cocaine seized after his

arrest was relatively small. But see United States v.

Hernandez, 330 F.3d 964, 972 (7th Cir. 2003) (adopting

Fourth Circuit’s view that the “fact that a defendant

possessed a small amount of cocaine ‘is simply insuf-

ficient alone to require the lesser-included offense instruc-

tion.’ ” (quoting United States v. Wright, 131 F.3d 1111,

1112 (4th Cir. 1997))). And Eversman did testify at trial

that Upton admitted to being a drug user. But in light of

16 No. 07-1456

the remaining evidence, it is simply not plausible that

Upton possessed the cocaine solely for his personal use.

United States v. Chrismon, 965 F.2d 1465, 1477 (7th Cir.

1992) (“[A] verdict on the lesser offense must be plausible

as well as rational.”). Most notably, he confessed to selling

drugs from his house. In addition, there were two con-

trolled buys involving small quantities of crack, one for 0.4

gram and another for 0.1 gram. Although this was crack,

and not cocaine, the sales provide sufficient proof that

Upton was not a simple user. And the smaller quantities

indicate that Upton’s sales involved modest amounts of

drugs, cutting against the inference that the amount of

cocaine was too small to profitably redistribute.

Further, the items seized from his home indicate Upton

had set up a drug retail operation: marijuana, blue pills

hidden in a cigarette box, another baggy of cocaine next

to a digital scale for weighing out small drug quantities,

white residue on the digital scale, small baggies used for

distributing product to customers, a police scanner to

guard against approaching law enforcement, weapons

for self-help, prescription drugs that were not prescribed

to him, and the list goes on. Expert testimony established

that these were indicia of drug distribution. And a jury

would have to blink all of this damaging evidence to

conclude that Upton was just a user who blundered upon

a police sting. Because a rational jury could not do so, the

district court did not err in denying the lesser-included

offense instructions.

D. Sentencing Enhancement

Finally, Upton argues that the district court erred in

determining that Upton’s prior convictions for possessing

a sawed-off shotgun and domestic battery were “violent

No. 07-1456 17

felon[ies]” for purposes of the Armed Career Criminal Act.1

The Armed Career Criminal Act requires a minimum

sentence of fifteen years for a defendant who has “three

previous convictions by any court . . . for a violent felony

or a serious drug offense.” 18 U.S.C. § 924(e)(1) (2006). A

“violent felony” consists of “any crime punishable by

imprisonment for a term exceeding one year” that

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another;

18 U.S.C. § 924(e)(2)(B). The government offered the

information or indictment for each of his convictions at

sentencing. And the district court determined that they

qualified as “violent felon[ies],” a decision we review

de novo. United States v. Golden, 435 F.3d 612, 613 (7th

Cir. 2006).

On appeal, Upton challenges the district court’s conclu-

sions with respect to two of the three prior convic-

1

Upton also argues that the government should have in-

cluded his prior convictions in the indictment and proven them

to a jury beyond a reasonable doubt. As Upton recognizes,

Supreme Court precedent forecloses this argument, see United

States v. Almendarez-Torres, 523 U.S. 224 (1998), although

doubts of its continued validity have been raised. See Shepard v.

United States, 544 U.S. 13, 28 (2005) (Thomas, J. concurring)

(reasoning that “a majority of the Court now recognizes that

Almendarez-Torres was wrongly decided”); see also United

States v. Hendrix, ___ F.3d ___, 2007 WL 4225274, *10 (7th Cir.

2007) (“Almendarez-Torres remains intact, notwithstanding

subsequent decisions.”). Regardless, we note the argument

here in the event the law ever changes in Upton’s favor.

18 No. 07-1456

tions.2 First, he argues that the government did not

prove that his Illinois conviction for unlawful possession of

a sawed-off shotgun qualifies because the mere possession

of a sawed-off shotgun does not pose a risk of serious

physical injury. Illinois law provides that “[a] person

commits the offense of unlawful use of weapons when he

knowingly . . . possesses . . . a shotgun having one or more

barrels less than 18 inches in length or any weapon made

from a . . . shotgun . . . if such a weapon as modified has an

overall length of less than 26 inches.” 720 ILCS 5/24-

1(a)(7)(ii) (2007). Illinois law punishes the crime as a

Class 3 felony, calling for between two and five years’

imprisonment (and meeting the federal definition of a

felony). 730 ILCS 5/5-8-1(6) (2007).

This Court has already held that the possession of a

sawed-off shotgun constitutes a crime of violence for

purposes of enhanced punishment under the Sentencing

Guidelines, see United States v. Brazeau, 237 F.3d 842, 844

(7th Cir. 2001), and the same conclusion obtains under the

Armed Career Criminal Act. See United States v. Rosas,

410 F.3d 332, 335-36 (7th Cir. 2005). The relevant lan-

guage in the Guidelines and the Act are identical: Both

enhancements apply when an offense involves the “serious

potential risk of physical injury to another.” Compare

U.S.S.G. § 4B1.2(a)(2) with 18 U.S.C. § 924(e)(2)(B)(ii).

Because the text is identical, this Court’s determination

in Brazeau—that a sawed-off shotgun presents the “serious

potential risk of physical injury” under the Guidelines—

forecloses Upton’s argument. Rosas, 410 F.3d at 336. Nor

can one deny that a sawed-off shotgun poses such a

risk. People do not shorten their shotguns to hunt or

shoot skeet. Instead, the shortened barrel makes the

2

Upton has not questioned that aggravated battery is a “violent

felony.”

No. 07-1456 19

guns easier to conceal and increases the spread of

the shot when firing at close range—facts that spurred

Congress to require the registration of all sawed-off

shotguns, along with other dangerous weapons like

bazookas, mortars, pipe bombs, and machine guns.

Brazeau, 237 F.3d at 845. Accordingly, the district court

did not err in concluding that Upton’s conviction consti-

tuted a “violent felony.”

Upton also argues that his convictions for domestic

battery do not qualify. Under Illinois law, a “person

commits domestic battery if he intentionally or knowingly

without legal justification by any means . . . [c]auses bodily

harm to any family or household member.” 720 ILCS 5/12-

3.2(a)(1). An offender’s first domestic-battery conviction

is a misdemeanor. But “if the defendant has any prior

conviction . . . for domestic battery,” it becomes a Class 4

felony, punishable by between one and three years’

imprisonment. 720 ILCS 5/12-3.2(b); see also 730 ILCS 5/5-

8-1. Upton has an unfortunate number of convictions

for domestic battery (though one is too many), and he

spent time in prison for three of them.

These convictions clearly qualify under the Act. In

light of his recidivism, Upton’s convictions were Class 4

felonies, which allow for one to three years’ imprisonment.

730 ILCS 5/5-8-1(7). For all three convictions, Illinois

charged Upton with committing domestic battery under

720 ILCS 5/12-3.2(a)(1). This provision of the statute

unambiguously requires proving “physical force”: to sus-

tain his conviction for domestic battery, the state had to

prove that he “[c]ause[d] bodily harm,” which means

that it had as an element “the use . . . of physical force

against the person of another.” See United States v.

Townsend, 419 F.3d 663, 664 (7th Cir. 2005) (“When there

is no ambiguity in the charging documents or in the

statutory definition of the crime, it is not necessary to

undertake a factual review.”). Thus, the district court did

20 No. 07-1456

not err in concluding that Upton’s domestic-battery

convictions were “violent felon[ies].”

III. Conclusion

In light of the forgoing, we AFFIRM Upton’s convictions

and sentence.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-9-08