United States v. Harris, Spencer

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2195

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SPENCER HARRIS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 06 CR 30058—Jeanne E. Scott, Judge.

____________

ARGUED APRIL 8, 2008—DECIDED AUGUST 6, 2008

____________

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

KANNE, Circuit Judge. Spencer Harris was convicted

after a jury trial on five separate criminal counts: one

count of distributing crack cocaine, 21 U.S.C. §§ 841(a)(1),

(b)(1)(B), one count of distributing powder cocaine,

id. §§ 841(a)(1), (b)(1)(C), one count of possessing crack

cocaine with intent to distribute, id. §§ 841(a)(1), (b)(1)(B),

one count of being a felon in possession of a firearm,

18 U.S.C. §§ 922(g)(1), 924(c)(1)(B), and one count of

possessing a firearm in furtherance of a drug-trafficking

crime, id. § 924(c)(1)(A). The district court sentenced

Harris to a total of 460 months’ imprisonment. On appeal,

2 No. 07-2195

Harris claims that the district court made several

erroneous evidentiary rulings, which deprived him of a

fair trial. We do not believe that the district court

abused its discretion in admitting the challenged evidence

against Harris, so we affirm his conviction.

Because Harris’s crimes involved crack cocaine, after

oral argument we ordered the parties to file supple-

mental memoranda on the propriety of the district court’s

sentence in light of Kimbrough v. United States, 128 S. Ct. 558

(2007), and United States v. Taylor, 520 F.3d 746 (7th Cir.

2008). After considering the parties’ responses, we do not

believe that Kimbrough or Taylor invalidates Harris’s

sentence, so we affirm the sentence as well.

I. HISTORY

On June 22, 2006, officers of the Springfield, Illinois,

Police Department arrested David Haynes for possession

of crack cocaine and marijuana that the officers recovered

from a baby seat in Haynes’s house during a parole

check. After his arrest, Haynes agreed to cooperate with

the police and to provide information about Spencer

Harris, whom Haynes claimed sold him the crack cocaine.

Haynes explained to the police that he could set up a

drug purchase from Harris at any time, merely by tele-

phoning him.

The Springfield police officers brought Haynes to meet

with Drug Enforcement Administration (DEA) agents,

who arranged for Haynes to participate in two con-

trolled purchases of drugs from Harris. At the agents’

direction, Haynes attempted to contact Harris on Harris’s

cell phone to schedule a meeting to purchase drugs. The

No. 07-2195 3

agents outfitted Haynes with audio and video re-

cording equipment, searched him to ensure that he was

not carrying contraband, and gave him money to pur-

chase cocaine—preferably crack cocaine—from Harris.

The first controlled purchase occurred on the day of

Haynes’s arrest. Haynes first tried contacting Harris

using a DEA office telephone, to no avail. Haynes then

placed a second call to Harris from his personal cell

phone, and Harris’s girlfriend answered. Haynes arranged

to meet Harris at the residence of Harris’s girlfriend,

located at 1904 Greentree Street, in Springfield, Illinois.

There, Harris sold powder cocaine to Haynes and agreed

to convert the powder into crack cocaine while Haynes

waited; however, Harris could not find baking soda,

so Haynes left with the powder cocaine. Haynes then met

the DEA agents, who searched Haynes, recovered the

powder cocaine from him, and downloaded the audio

and video recordings onto a computer.

The second controlled purchase took place one week

later at Harris’s home, located at 1844 South 14th Street,

also in Springfield, Illinois. Haynes again arranged the

meeting with Harris by cell phone, and DEA agents

met Haynes at a nearby golf course, where they sup-

plied him with recording equipment and a bicycle,

searched him for contraband, and provided him with

money. Haynes cycled to Harris’s house and met Harris

in the backyard. Haynes purchased crack cocaine from

Harris, and then immediately returned to the golf course,

where the DEA agents recovered the crack cocaine and

downloaded the new audio and video recordings.

Law enforcement officers conducted surveillance of

both controlled purchases, and then obtained search

warrants for both residences. The officers executed the

4 No. 07-2195

warrants on July 6, 2006. At Harris’s girlfriend’s resid-

ence, the officers found a .22 revolver locked in a dresser

drawer, 9mm ammunition, powder cocaine, and crack

cocaine. At Harris’s residence, the officers discovered

a loaded 9mm semi-automatic pistol in a bag on the

kitchen table, powder cocaine, crack cocaine, digital

scales, individual plastic bags, drug-cutting parapher-

nalia, and $2,000 in cash. The officers arrested Harris. At

the time of his arrest, Harris had a key to his own house,

a key to his girlfriend’s house, and a key to the locked

dresser drawer from which the .22 revolver was recovered.

A federal grand jury issued an indictment that charged

Harris with five counts: (1) knowingly and intentionally

distributing five or more grams of a mixture or sub-

stance containing cocaine base, id. §§ 841(a)(1), (b)(1)(B);

(2) knowingly and intentionally possessing with intent to

distribute, five or more grams of a substance containing

cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(B); (3) being a

felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1),

924(c)(1)(B); (4) possessing a firearm in furtherance of a

drug trafficking crime, id. § 924(c)(1)(A)(I); and (5) know-

ingly and intentionally distributing a mixture or sub-

stance containing cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C).

Count 1 of the indictment was based on the crack cocaine

sold to Haynes at the second controlled purchase. Counts

2, 3, and 4 were based on the crack cocaine and the 9mm

pistol seized from the officers’ execution of the search

warrants. And Count 5 was based on the powder cocaine

sold to Haynes at the first controlled purchase.

In anticipation of trial, the government gave notice of

its intent to present evidence of other crimes, wrongs, or

acts committed by Harris. See Fed. R. Evid. 404(b). The

government’s notice delineated the “other act” evidence

No. 07-2195 5

that it intended to offer: (1) Harris sold cocaine and crack

cocaine to Haynes on numerous occasions prior to the

controlled purchases; (2) during the same period, Harris

transacted a number of drug deals with two other individ-

uals, Troy Powers and Mario Brown; (3) Harris drove

a number of luxury vehicles, including a black Lexus;

and (4) in addition to the charged firearm, officers recov-

ered the .22 revolver and 9mm ammunition during

their searches. In response to the government’s notice,

Harris filed a motion in limine, which sought to bar the

evidence of prior drug deals with Haynes, Powers, and

Brown as irrelevant and as improper propensity evi-

dence under Rule 404(b). Harris’s motion also sought

to keep out the evidence of the luxury vehicles and the

recovered-but-uncharged revolver and ammunition as

irrelevant and unfairly prejudicial.

The district court held a hearing on Harris’s motion in

early October 2006. With regard to the prior drug deals

between Harris and Haynes, the district court stated that

“those transactions . . . are relevant to show the history

between the two. And in that sense they are intricately

related to the charges found in . . . the indictment. So

things that go to their history and relationship are very

relevant and will not be barred.” The district court ex-

plained that the evidence was also admissible under

Rule 404(b) because it “would go to show the defendant’s

knowledge of cocaine, his intent to distribute it, and

it would go towards establishing the nature and extent

of the relationship between the defendant and [Haynes].”

As for the drug transactions between Harris and Powers

and between Harris and Brown, the district court ex-

plained that:

[E]vidence of those should be limited to the same

time frame that [Haynes] was purchasing crack or

6 No. 07-2195

powder cocaine from [Harris]. For that time frame

the other incidents are relevant as corroboration of

[Haynes’s] testimony, and to show that there

was a source that Harris had for purchasing the

cocaine that he in turn sold as cocaine or crack

cocaine.

The district court also determined that the evidence that

Harris drove luxury vehicles would “be relevant to

show an unaccounted for source of income if the Gov-

ernment is able to introduce other evidence that the

defendant lacked a source of income.” The district court

explained that the probative value of the vehicle evidence

would not be outweighed by prejudice, “because there’s

nothing inherently illegal or improper about owning

or driving a Lexus automobile.” Finally, with respect to

the .22 revolver and the ammunition, the court stated

“[t]he second gun doesn’t add much prejudice to the first

gun, which is required under the Government’s indict-

ment, if it’s going to prove its charge.”

The day after the hearing, Harris pled not guilty to all

five counts in the indictment, and the case proceeded to

a jury trial. During the government’s case-in-chief, the

government introduced testimony from Haynes, Powers,

Brown, Harris’s girlfriend, and several DEA agents, as

well as physical evidence and the audio and video record-

ings from the controlled purchases. The recordings por-

trayed Harris meeting with Haynes, the two men con-

versing about basketball shoes, and Harris counting

money. The recordings did not show drugs being trans-

ferred, nor did they contain dialogue about the drug

transactions.

In order to place its evidence of the controlled pur-

chases into context, the government elicited testimony

No. 07-2195 7

about other drug deals between Haynes and Harris. But

before Haynes could testify to his prior dealings with

Harris, the district court gave a limiting instruction to

the jury:

Ladies and gentlemen, you’re now hearing testi-

mony about drug transactions other than those

charged in the indictment. The ones charged in the

indictment were in June of 2006. I want you to

understand that this evidence of other drug trans-

actions is admitted for the limited purpose of

showing the defendant’s knowledge of the drugs

involved, his intent with respect to them, and the

relationship and history between the defendant

and this witness. You’re to consider the evidence of

these uncharged drug transactions only in those

respects, and for those limited purposes.

After the district court’s limiting instruction, and over

the objection of Harris’s counsel, Haynes explained that

he was a drug dealer and that he was introduced to

Harris in 2004 because he needed a new supplier of crack

cocaine. Haynes stated that he purchased a quarter ounce

of crack cocaine from Harris for $250 the first time they

met, and Haynes recounted how he regularly purchased

crack cocaine from Harris for $250 per quarter ounce

whenever Haynes wanted after placing a quick call to

Harris’s cell phone. Haynes specified that he engaged

in drug transactions with Harris about three or four

times per week until Haynes went to prison in March 2005;

once Haynes was released from prison in September 2005,

he purchased about a quarter ounce of crack cocaine from

Harris two or three times per day until his arrest. Haynes

added that he also purchased a quarter ounce of crack

cocaine from Harris for $250, without the knowledge of

8 No. 07-2195

the DEA, after the controlled purchases; the district

court repeated its limiting instruction before Haynes

testified about the subsequent drug deal.

Haynes testified that he had purchased drugs from

Harris on other occasions at both residences where the

controlled purchases occurred, and Haynes stated that

Harris had converted powder cocaine to crack for him

on other occasions. Haynes also testified that, on one

occasion, he had seen the butt of a 9mm pistol sticking

out of a couch in Harris’s house. Haynes told the jury

that when he asked Harris about the gun, Harris told

him that he needed it for protection. Harris told Haynes

that he was concerned because Brown had been arrested

while driving away from Harris’s house after a drug deal,

and Harris was worried that Brown’s family might come

after him.

The government later called Powers and Brown as

witnesses to testify about other drug deals involving

Harris. Powers testified that he sold cocaine to Harris

three or four times, beginning in 2005. Powers told the

jury that when he and Harris met, they negotiated a

purchase price by silently entering dollar amounts into a

cell phone and passing the phone between them—the two

rarely spoke and acceded to terms by nodding their

heads. Brown testified that he purchased powder co-

caine from Harris at Harris’s residence on six occasions

between the fall of 2004 and May 2005.

The government also introduced the other evidence it

specified in its pre-trial notice of intent. Evidence that

Harris drove luxury vehicles came in through several

witnesses. Harris’s girlfriend testified that Harris was not

employed from 2003 until his arrest in 2006. Despite

Harris’s unemployment, Haynes saw him driving a Nissan

No. 07-2195 9

Pathfinder and a black Lexus, and Harris’s girlfriend

confirmed that Harris drove these vehicles, in addition

to an Infinity sport-utility vehicle and a tan-colored

vehicle. Harris’s girlfriend testified that the Pathfinder

was titled in her mother’s name, two of the vehicles

were titled in Harris’s aunt’s name, and the tan-colored

vehicle was titled in Harris’s six-year-old son’s name.

The government introduced testimony about the second

gun and ammunition through DEA witnesses, who testi-

fied that a .22 revolver and 9mm ammunition had been

recovered from Harris’s girlfriend’s residence. A DEA

expert witness explained that drug dealers often arm

themselves to protect their person, drugs, and cash.

In his defense, Harris argued that Haynes had set him

up in order to secure lenient treatment from the gov-

ernment in his own case. Harris bolstered this argument

by highlighting that the recordings presented at trial did

not show any drugs changing hands. Harris also argued

that the evidence collected during the two searches did

not belong to him. For example, Harris’s counsel argued

in closing that “[t]he .22 is found in [Harris’s girl-

friend’s] house. It is in [her bedroom]. It is in [her]

dresser . . . . It is [her] gun and she had it for her own

protection.” Harris’s counsel suggested that the drugs

found at Harris’s girlfriend’s house were part of her

own “personal stash.” Harris argued, in the alternative,

that even if some of the drugs recovered during the

police searches belonged to him, they were merely for

his personal use and were not intended for distribution.

At Harris’s request, the district court revised and ex-

panded its limiting instruction prior to the jury’s delib-

erations. The new instruction explained that the “evidence

of other acts” was “not evidence that [Harris] committed

10 No. 07-2195

the acts alleged in the indictment at the times alleged.”

The court instructed the jury that such evidence should

be considered “only on the question of motive, identity,

or plan, or whether any acts of the defendant alleged in

the indictment, if proven, were done with knowledge,

intent, absence of mistake, or were not inadvertent acts.”

The instruction also reiterated that the government had

the burden of proving the acts alleged in the indictment

beyond a reasonable doubt. The jury deliberated and

found Harris guilty on all five counts of the indictment.

A probation officer then prepared a presentence investi-

gation report (PSR), in which the officer determined that

Harris was a career offender, see U.S.S.G. § 4B1.1(a),

because he had two prior qualifying felony convictions—an

Illinois conviction for aggravated battery, and an Illinois

conviction for manufacture or delivery of a controlled

substance. The probation officer accordingly assigned

Harris an offense level of 37 and a Criminal History

Category of VI. See id. §§ 4B1.1(b), (c)(2); see also 21

U.S.C. § 841(b)(1)(B) (setting statutory maximum for

distribution of controlled substance at life if defendant

has prior final felony drug conviction). Based on these

calculations, the PSR listed Harris’s guideline imprison-

ment range as 420 months to life, see U.S.S.G.

§ 4B1.1(c)(2)(A), and the probation officer recommended

a prison term of 420 months. Neither Harris nor the

government objected to the PSR.

At the sentencing hearing, the government recommended

that Harris receive a life sentence. Harris’s counsel asked

for a sentence between 300 and 360 months, arguing that

a higher sentence would result in a de facto life sentence

for Harris. The district court adopted the PSR without

change, considered the arguments advanced by the

parties, and canvassed several of the sentencing factors

No. 07-2195 11

enumerated in 18 U.S.C. § 3553(a). The court then sen-

tenced Harris to 400 months’ imprisonment on the distrib-

ution and possession-with-intent-to-distribute counts

(Counts 1, 2, and 5), and to 120 month’s imprisonment

on the felon-in-possession count (Count 3), to run con-

currently; the court also sentenced Harris to 60 months’

imprisonment on the possession-of-a-firearm-in-relation-

to-drug-trafficking count (Count 4), to run consecutively.

This yielded a total sentence of 460 months’ imprisonment,

to which the court added eight years of supervised re-

lease and a $500 special assessment.

II. ANALYSIS

Harris claims on appeal that he is entitled to a new

trial because of the district court’s evidentiary rulings.

Harris argues that “[w]hether viewed individually or in

their totality,” these rulings denied him a fair trial. Specifi-

cally, Harris contests the admission of: (1) testimony

about drug transactions with Haynes other than the

controlled purchases; (2) testimony about the prior drug

transactions with Powers and Brown; (3) testimony about

the luxury vehicles; and (4) evidence of the uncharged .22

revolver and 9mm ammunition. Harris contends that

the government’s closing argument demonstrates why

the evidence was erroneously admitted. In his supple-

mental memorandum, Harris asks that his sentence be

reversed in light of Kimbrough v. United States, 128 S. Ct. 558

(2007).

A. The district court’s evidentiary rulings

We review the district court’s evidentiary rulings for

an abuse of discretion, United States v. Owens, 424 F.3d 649,

12 No. 07-2195

653 (7th Cir. 2005), including its decision to admit evidence

of “other acts” under Federal Rule of Evidence 404(b),

United States v. Price, 516 F.3d 597, 603 (7th Cir. 2008), and

its decision to admit evidence under the “intricately

related” doctrine, United States v. Wantuch, 525 F.3d 505,

517 (7th Cir. 2008).

1. Testimony about other drug deals with Haynes

The district court justified its admission of testimony

about other drug transactions between Harris and Haynes

because such testimony was “intricately related” to the

conduct charged in the indictment, see id. at 517; United

States v. Strong, 485 F.3d 985, 989-90 (7th Cir. 2007), and

because the evidence was admissible under Federal Rule

of Evidence 404(b). Harris contends that the district

court improperly admitted the testimony because it was

not intricately related to the charged conduct and because

it was improper propensity evidence. See Fed. R. Evid.

404(b); United States v. Simpson, 479 F.3d 492, 496-97 (7th

Cir. 2007).

Rule 404(b) prevents the admission of evidence of other

crimes, wrongs, or acts to prove that a person acted in

conformity with his prior conduct. Fed. R. Evid. 404(b). In

other words, “Rule 404(b) plainly prohibits the govern-

ment from introducing evidence of prior bad acts to

show that the defendant’s character is consistent with a

propensity to commit the charged crime.” Simpson, 479

F.3d at 497. But evidence may be properly admitted under

Rule 404(b) for a non-propensity purpose, such as to

prove “ ‘motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.’ ”

United States v. Sebolt, 460 F.3d 910, 916 (7th Cir. 2006)

No. 07-2195 13

(quoting Fed. R. Evid. 404(b)). A district court properly

admits evidence of prior acts under Rule 404(b) if:

“(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propen-

sity to commit the crime charged; (2) the evidence

shows that the other act is similar enough and close

enough in time to be relevant to the matter in issue;

(3) the evidence is sufficient to support a jury

finding that the defendant committed the similar

act; and (4) the probative value of the evidence is

not substantially outweighed by the danger of

unfair prejudice.”

United States v. Moore, No. 07-3445, slip op. at 6 (7th Cir.

July 1, 2008) (quoting United States v. Ross, 510 F.3d 702,

713 (7th Cir. 2007)); United States v. Dennis, 497 F.3d 765,

768 (7th Cir. 2007) (quoting Sebolt, 460 F.3d at 916).

Acts that are “intricately related to” (or “inextricably

intertwined with”) a crime charged in the indictment “are

generally admissible . . . and are not subject to the con-

straints of [Rule 404(b)].” Strong, 485 F.3d at 989-90; see

also United States v. James, 464 F.3d 699, 709 (7th Cir.

2006); United States v. Senffner, 280 F.3d 755, 764 (7th Cir.

2002). But we recently noted that the “ ‘inextricably inter-

twined’ formula . . . is unhelpfully vague.” United States

v. Taylor, 522 F.3d 731, 734 (7th Cir. 2008). We explained

that “intent and absence of mistake are express ex-

ceptions to the Rule 404(b) bar; there is no need to

spread the fog of ‘inextricably intertwined’ over them.

Almost all evidence admissible under the ‘inextricably

interwoven’ doctrine is admissible under one of the

specific exceptions in Rule 404(b) . . . .” Id. at 735. After

reviewing the record, we believe that there is “no need

to spread the fog” of the “intricately related” doctrine

in this case because Haynes’s testimony about his other

14 No. 07-2195

drug transactions with Harris was admissible under

Rule 404(b).

Haynes’s testimony related to several non-propensity

issues, including Harris’s intent to distribute the drugs

recovered during the police searches, his knowledge of

the drugs, and the absence of mistake. Evidence that

Harris sold drugs to Haynes was relevant to show that

Harris intended to sell the drugs found during the

police searches, and Harris’s intent was automatically

at issue because the indictment charged him with specific

intent crimes. See Ross, 510 F.3d at 713 (“Because con-

spiracy is a specific intent crime, whether Wilson in-

tended to conspire to rob the post office was automatically

in issue.”); United States v. Puckett, 405 F.3d 589, 596 (7th

Cir. 2005) (“The crime of possession of cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1),

is a specific intent crime making the defendant’s state

of mind an element of the crime which is to be determined

by the finder of fact.”); see also Moore, No. 07-3445, slip

op. at 6-7. In fact, Harris also placed his intent squarely

at issue by claiming that he possessed the drugs merely

for personal use. The evidence of other transactions

directly rebutted Harris’s asserted defense to the

possession-with-intent-to-distribute charge by showing

that Harris had engaged in drug deals in the past. See

Moore, No. 07-3445, slip op. at 7-8; Taylor, 522 F.3d at 734;

United States v. Jones, 455 F.3d 800, 808 (7th Cir. 2006);

Puckett, 405 F.3d at 596. The testimony from Haynes

also disproved Harris’s contention that the drugs and

the firearms seized during the searches of 1904 Green-

tree Street and 1844 South 14th Street belonged to his

girlfriend and other tenants: the fact that Harris had

engaged in other drug transactions proved that Harris

No. 07-2195 15

had knowledge of the drugs and firearms recovered. See

United States v. Best, 250 F.3d 1084, 1092 (7th Cir. 2001).

The testimony from Haynes was also relevant to rebut

the allegations of mistake that Harris raised by claiming

that he was an innocent bystander and that Haynes

“set him up.” See Moore, No. 07-3445, slip op. at 7-8.

Harris’s counsel argued multiple times that Haynes

provided evidence against Harris in an attempt to

procure lenient treatment after officers discovered crack

cocaine in a baby seat at Haynes’s house. And Harris’s

counsel repeatedly noted that the audio and video re-

cordings presented at trial lacked discussion about

drugs—the recordings revealed a conversation between

Harris and Haynes about basketball shoes, and showed

Harris counting cash. By combining these points,

Harris’s counsel accused Haynes of fabricating evi-

dence against Harris.

The government therefore needed to introduce evi-

dence of the illicit history between Harris and Haynes

in order to elucidate their ongoing business relationship

and rebut Harris’s attempt to downplay his role in the

controlled purchases. See Moore, No. 07-3445, slip op. at 7-

8; Taylor, 522 F.3d at 733 (“The buyers’ previous knowl-

edge about [the defendant] related to the accuracy

(hence absence of mistake) of their testimony concerning

the controlled buys that provided crucial evidence for

the government’s case.”). The evidence of identical prior

transactions related to the accuracy of the testimony

concerning the controlled purchases by explaining how

Haynes’s relationship with Harris developed to the

point that Haynes could easily purchase drugs from

Harris after only a quick phone call. The prior transac-

tions also helped explain why Harris did not answer the

16 No. 07-2195

initial telephone call placed from the DEA office phone

(presumably a number unknown to Harris), but accepted

the call placed from Haynes’s personal cell phone. Simi-

larly, the evidence of prior drug transactions at Harris’s

girlfriend’s house tied Harris “to the house (where those

items were found) and helped explain why he would

possess the items.” Cf. Strong, 485 F.3d at 990 (upholding

admission of evidence under the “intricately related”

doctrine).

The testimony from Haynes also satisfies the other

prongs of our test for review under Rule 404(b). The

testimony was “similar enough and close enough in time”

to the charged conduct—in fact, the transactions were

limited to a two-year period and involved identical

amounts of the same drug as those charged in the indict-

ment. See Ross, 510 F.3d at 713; United States v. Ruiz, 178

F.3d 877, 880-81 (7th Cir. 1999); United States v. Gibson,

170 F.3d 673, 679 (7th Cir. 1999). The evidence was also

sufficient to support a jury finding that Harris engaged

in the prior drug transactions with Haynes: the evidence

of the controlled purchases and the items recovered from

the residences, as well as Powers’s and Brown’s testimo-

nies, corroborated Haynes’s coherent story. See United

States v. Mallett, 496 F.3d 798, 802 (7th Cir. 2007).

And the evidence satisfies the final prong of our

Rule 404(b) admissibility inquiry—the balancing test

incorporated from Federal Rule of Evidence 403. See

Moore, No. 07-3445, slip op. at 6 (quoting Ross, 510 F.3d

at 713). Rule 403 provides that relevant evidence “may

be excluded if its probative value is substantially out-

weighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of

No. 07-2195 17

cumulative evidence.” Fed. R. Evid. 403. “[A]dmission of

evidence under Rule 403 is entitled to special deference.

‘Only in an extreme case are appellate judges competent

to second-guess the judgment of the person on the spot,

the trial judge.’ ” Wantuch, 525 F.3d at 518 (quoting

Strong, 485 F.3d at 991); see also United States v. Gardner,

211 F.3d 1049, 1055 (7th Cir. 2000). “Evidence is unfairly

prejudicial only if it will induce the jury to decide the

case on an improper basis, commonly an emotional

one, rather than on the evidence presented.” Wantuch,

525 F.3d at 518.

We have already explained that the testimony about

other drug transactions between Harris and Haynes had

a great amount of probative value on the issues of

intent, absence of mistake, and knowledge, especially

in light of Harris’s asserted defenses. See Moore, No.

07-3445, slip op. at 8. Contrary to Harris’s suggestion,

the district court did not allow the government to directly

elicit testimony that Harris and Haynes had engaged

in hundreds of drug transactions—Haynes testified to a

pattern of prior drug transactions that occurred at reg-

ular intervals involving the same amounts of the same

drug charged in the indictment. We do not believe that

the protocol that Haynes described was inherently “emo-

tional or incendiary.” See Strong, 485 F.3d at 991. Still,

the number of other drug transactions was not probative

to explain the charged crime, and the government con-

ceded at oral argument that testimony regarding the

prior drug deals between Harris and Haynes could have

been elicited in a way that prevented Haynes from

stating that he purchased crack cocaine several times per

week and then several times per day over lengthy periods

of time. Standing alone, evidence regarding a vast num-

18 No. 07-2195

ber of similar drug deals might allow a jury to improp-

erly convict a defendant based on his propensity to sell

drugs. See Simpson, 479 F.3d at 499. But in this case,

Haynes’s testimony did not stand alone. The district

court gave numerous and detailed limiting instructions

on the issue. These instructions alleviated any potential

prejudice caused by the testimony. See United States

v. Hearn, No. 07-1613, slip op. at 14 (7th Cir. July 18,

2008); Moore, No. 07-3445, slip op. at 9; Wantuch, 525 F.3d

at 518; Mallett, 496 F.3d at 802. Thus, the district court

did not abuse its discretion by admitting the evidence

of other drug transactions between Harris and Haynes.

2. Testimony about prior drug deals with Powers and Brown

The district court also allowed the government to pre-

sent testimony under Federal Rule of Evidence 404(b)

about Harris’s drug transactions with Powers and Brown.

Harris again argues that the district court abused its

discretion by admitting improper propensity evidence. See

Fed. R. Evid. 404(b); Simpson, 479 F.3d at 497. The govern-

ment counters that the evidence was properly admitted

because it was not introduced to demonstrate Harris’s

propensity to sell drugs, but instead to prove his intent,

knowledge, opportunity, and the absence of mistake. See

Fed. R. Evid. 404(b); Sebolt, 460 F.3d at 916.

As with the other drug transactions between Harris

and Haynes, evidence that Harris sold drugs to Brown

was relevant to prove Harris’s intent, see Moore, No.

07-3445, slip op. at 7-8; Taylor, 522 F.3d at 734; Ross, 510

F.3d at 713, and to prove his knowledge of the drugs

and firearms recovered, see Best, 250 F.3d at 1092. It also

helped establish Harris’s motive to possess the gun. See

No. 07-2195 19

United States v. Caldwell, 423 F.3d 754, 759 (7th Cir. 2005);

United States v. Lloyd, 71 F.3d 1256, 1264 (7th Cir. 1995).

Haynes’s testimony about his conversation with Harris

about prior drug dealing with Brown revealed that

Harris also needed the firearm for protection from

Brown’s family. The testimony from Powers and Brown

was also relevant to rebut the allegations of mistake that

Harris raised by repeatedly challenging the veracity of

Haynes’s testimony, and by frequently citing the fact

that the recordings of the controlled purchases did not

portray drugs changing hands or any discussion of drugs.

See Taylor, 522 F.3d at 733. Powers’s testimony about how

he and Harris negotiated prices during their drug trans-

actions by silently passing a cell phone between them

corroborated and illuminated Haynes’s testimony about

the controlled purchases and was especially probative

to prove absence of mistake. Moreover, as the district

court noted, the evidence that Harris purchased drugs

from Powers was admissible to establish that Harris

had the opportunity to make the controlled sales by

tracing a potential supplier of the drugs sold to Haynes.

The testimony from Powers and Brown was also

“similar enough and close enough in time” to the charged

conduct. Like Haynes, Powers and Brown also testified

about drug deals involving cocaine within two years of

the charged conduct. See Ross, 510 F.3d at 713; Ruiz, 178

F.3d at 880-81. The evidence was also sufficient to sup-

port a jury finding that Harris engaged in the prior drug

transactions with Powers and Brown. See Mallett, 496

F.3d at 802. Finally, the substantial probative value of

the testimony from Powers and Brown on the issues of

intent, absence of mistake, knowledge, motive, and op-

portunity greatly outweighed any potential unfair preju-

dice, especially in light of the district court’s time-frame

20 No. 07-2195

limitation and diligent, unopposed limiting instructions.

See Moore, No. 07-3445, slip op. at 9; Mallett, 496 F.3d

at 802; United States v. Whitlow, 381 F.3d 679, 686 (7th Cir.

2004). The district court did not abuse its discretion by

admitting testimony about Powers’s and Brown’s drug

transactions with Harris.

3. Testimony about Harris’s luxury vehicles

Harris claims that the district court improperly admit-

ted evidence that he drove numerous luxury vehicles

because the evidence was irrelevant and unfairly prej-

udicial. Under Federal Rule of Evidence 401, evidence

is relevant if it has “any tendency to make the existence

of any fact that is of consequence to the determination of

the action more probable or less probable than it would

be without the evidence.” Fed. R. Evid. 401. Evidence

of unexplained wealth, such as the testimony about

Harris’s luxury vehicles, is admissible as relevant cir-

cumstantial evidence of drug trafficking if the unex-

plained wealth was acquired contemporaneously with

the alleged drug trafficking, if the wealth creates an

inference that the defendant was involved in drug traf-

ficking, and if the government presents evidence that

the wealth was not obtained through legitimate means.

United States v. Carrera, 259 F.3d 818, 829 (7th Cir. 2001);

see also United States v. Smith, 308 F.3d 726, 737 (7th Cir.

2002) (“[E]vidence of an unexplained, lavish lifestyle is

probative of the existence of income derived from a

drug conspiracy.”); United States v. Penny, 60 F.3d 1257,

1263 (7th Cir. 1995).

The district court articulated the proper legal standard

in its ruling on Harris’s motion in limine, stating that the

No. 07-2195 21

vehicle evidence would “be relevant to show an unac-

counted for source of income if the Government is able

to introduce other evidence that the defendant lacked a

source of income.” And the government laid its founda-

tion through Harris’s girlfriend, who testified that

Harris was not employed from 2003 through 2006. The

evidence of luxury vehicles had some probative value,

especially considering that these vehicles were not regis-

tered to Harris but to his relatives and acquaintances—

including his six-year-old son. We do not believe the

vehicle evidence was unfairly prejudicial, and the dis-

trict court did not abuse its discretion by allowing the

government to present the evidence. See Wantuch, 525

F.3d at 518.

4. Testimony about the uncharged .22 revolver and 9mm

ammunition

Harris also objects to the district court’s admission of

evidence regarding the .22 revolver and 9mm ammuni-

tion that officers recovered from his girlfriend’s resid-

ence, but for which he was not charged. We can quickly

dispose of this final evidentiary challenge because the

evidence was admissible under Rule 404(b). See Ross,

510 F.3d at 713. The government was entitled to introduce

evidence of the .22 revolver and the 9mm ammunition

to rebut Harris’s defense that the 9mm pistol found at

his house was not his—the ammunition was particularly

probative on this point. See United States v. Tylkowski, 9

F.3d 1255, 1262 (7th Cir. 1993) (“[T]he government was

entitled to introduce the challenged weapons to rebut

Richard’s claim that [he] lacked the requisite knowledge

of the contents of the sealed boxes.”). And as with the

testimony of other drug deals, the .22 revolver and the

22 No. 07-2195

9mm ammunition were also relevant to prove that

Harris intended to distribute the drugs found during the

searches. The evidence was found in the same search as

the drugs and weapons that supported the charges in the

indictment, and the evidence clearly supported a jury

verdict on a felon-in-possession count. We agree with

the district court that the addition of testimony about

the second gun and ammunition did not add unfair

prejudice, and the district court did not abuse its discre-

tion in admitting the evidence. Dennis, 497 F.3d at 768.

B. The government’s closing argument

Harris did not object to the government’s closing argu-

ment at trial, so we review the prosecutor’s comments

for plain error. See United States v. James, 487 F.3d 518,

525 (7th Cir. 2007). Harris claims that the prosecutor’s

comments referring to Harris’s prior dealings with

Haynes, Powers, and Brown, as well as the prosecutor’s

characterization of the evidence, “demonstrate[ ] that the

government used this evidence for different reasons

than originally claimed; there is no mention here of

intent or plan.” We disagree. The prosecutor’s closing

argument fairly commented on the evidence to refute the

closing argument by Harris’s counsel, which repeatedly

claimed that Harris did not have the requisite intent or

knowledge to be convicted on any of the indicted charges.

And the prosecutor explained to the jury that it could

only consider the prior transactions for limited purposes,

as instructed by the district court. The district court did

not clearly err by allowing the prosecutor to comment

on admissible evidence that rebutted the defense’s trial

theories. See id.

No. 07-2195 23

C. The propriety of Harris’s sentence after Kimbrough and

Taylor

Finally, we turn to Harris’s sentence. At our request,

Harris submitted a supplemental memorandum on the

viability of his sentence after Kimbrough v. United States,

128 S. Ct. 558 (2007), and United States v. Taylor, 520

F.3d 746 (7th Cir. 2008), in which Harris argued that his

sentence was invalid. The government claims that Harris

waived any argument about the legitimacy of his sen-

tence by failing to raise it in his appellate briefs or at

oral argument. See Valentine v. City of Chicago, 452 F.3d 670,

680 n.1 (7th Cir. 2006); Szczesny v. Ashcroft, 358 F.3d 464,

465 (7th Cir. 2004). Initially objecting to a criminal sen-

tence in a post-argument supplemental memorandum

does seem like a waiver. See Valentine, 452 F.3d at 680 n.1.

Nevertheless, because the issue was raised subsequent

to oral argument at our request, and because this issue

will likely impact future cases, we will address it on the

merits.

In Kimbrough, the Supreme Court held that a district

court may reasonably depart under 18 U.S.C. § 3553(a)

from the 100-to-1 crack cocaine to powder cocaine ratio

prescribed by § 2D1.1 of the United States Sentencing

Guidelines. 128 S. Ct. at 575. In order to address “the

recurring issue of the proper treatment of crack sen-

tencing appeals that were pending when the Supreme

Court decided Kimbrough,” in United States v. Taylor we

outlined a new approach for defendants who had failed to

object to a district court’s pre-Kimbrough sentence under

the guidelines. See 520 F.3d at 746.

Although Harris was convicted for distributing crack

cocaine, this case presents a different issue entirely. Harris

was not sentenced under § 2D1.1 for the amount of crack

24 No. 07-2195

cocaine he distributed, but rather under § 4B1.1 as a

career offender. Section 2D1.1 employs a drug-quantity

table to provide an offense level that is based on the

amount of drugs at issue. In contrast, § 4B1.1 correlates

offense levels and sentencing ranges with the gravity of

the crime by incorporating the statutory maximum sen-

tence for the underlying offense. See U.S.S.G.

§ 4B1.1(B)(1)(A). For example, under § 4B1.1, a defendant

is assigned an offense level of 37 if his crime carries

a statutory maximum sentence of life. See id. Thus,

§ 4B1.1 does not inherently prescribe different punish-

ments for crimes involving crack cocaine than it does for

crimes involving powder cocaine. To the extent that a

sentencing disparity might occur under § 4B1.1 based

upon the type of cocaine involved, it does not result

from the now-advisory drug quantity table, but is the

product of a discrepancy created by statute. See, e.g., 21

U.S.C. § 841(b) (setting the same statutory minima and

maxima for 5 kg of powder cocaine and 50 g of crack

cocaine).

While the sentencing guidelines may be only advisory

for district judges, congressional legislation is not. As

the First Circuit has explained, “the decision in

Kimbrough—though doubtless important in some cases—is

only of academic interest [in a case arising under the

career offender guideline].” United States v. Jimenez, 512

F.3d 1, 9 (1st Cir. 2007); see also United States v. Clay, 524

F.3d 877, 878-79 (8th Cir. 2008) (“Although the recent

amendments to the sentencing guidelines lowered the

offense levels associated with crack in the drug quantity

table in U.S.S.G. § 2D1.1, they did not change the career

offender provision in § 4B1.1 . . . .”); United States v.

Crawford, 520 F.3d 1072, 1075 (9th Cir. 2008). But our

No. 07-2195 25

discussion should not be read to suggest that § 4B1.1 is

any less advisory for a district judge than the other sen-

tencing guidelines. Cf. United States v. Martin, 520 F.3d

87, 96 (1st Cir. 2008) (upholding district court’s decision

to depart from career-offender guideline); United States

v. Sanchez, 517 F.3d 651, 663 (2d Cir. 2008) (“[W]hile the

sentencing statute expressly directs the district court to

‘consider’ the ‘sentencing range established for . . . the

applicable category of defendant as set forth in the guide-

lines’ . . . it does not instruct the court to impose such

a sentence.” (quoting 18 U.S.C. § 3553(a)(4)(A))).

We follow our sister circuits and clarify: a sentence

entered under the career offender guideline, § 4B1.1,

raises no Kimbrough problem because to the extent it

treats crack cocaine differently from powder cocaine, the

disparity arises from a statute, not from the advisory

guidelines. Therefore, the Kimbrough decision in no way

affected Harris’s sentence, so we will affirm the sen-

tence given by the district court. See United States v. White,

519 F.3d 342, 349 (7th Cir. 2008).

III. CONCLUSION

We AFFIRM the judgment of conviction, and the sen-

tence of the district court.

USCA-02-C-0072—8-6-08