United States v. Millbrook, Kim Lee

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2931

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

K IM L EE M ILLBROOK,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 06 CR 40033—Michael M. Mihm, Judge.

A RGUED M AY 5, 2008—D ECIDED JANUARY 23, 2009

Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.

R OVNER, Circuit Judge. Kim Lee Millbrook was con-

victed following a jury trial of drug and firearm offenses

as well as several counts of witness tampering and one

count of witness retaliation. The district court sentenced

him to 372 months’ imprisonment to be followed by eight

years of supervised release. Millbrook appeals, challenging

the district court’s refusal to suppress evidence found in

searches of his mother’s home and a storage locker. He

also raises a number of evidentiary challenges and argues

2 No. 07-2931

that his case should be remanded for resentencing in

light of changes to the United States Sentencing Guide-

lines regarding crack cocaine.

I.

In January of 2006, Millbrook’s parole officer, Mitch

Blackert, received a call from Millbrook’s wife Kristina

regarding a domestic dispute. In addition to telling Officer

Blackert that she had obtained an order of protection

against Millbrook, Kristina told him that she had seen

Millbrook with a firearm and crack cocaine. This report

prompted Officer Blackert to seek out Millbrook at his

mother’s house in Rock Island, Illinois.

According to Officer Blackert’s trial testimony, when

he arrived at the house, Millbrook was standing in front

of his car. After relaying Kristina’s allegations to

Millbrook, Officer Blackert told him that he needed to

search his car, to which Millbrook responded, “No, man.”

Millbrook then opened the driver’s side door of his car

and reached in under the front seat. Officer Blackert

ordered Millbrook out of the car with his hands up, but

Millbrook instead walked around to the passenger side

of the car and retrieved his cell phone from the glove

compartment, where Officer Blackert saw a baggie of

marijuana. When Officer Blackert told Millbrook that he

had seen the marijuana, Millbrook responded, “It’s just

some weed, man.” Officer Blackert then told Millbrook

to get out whatever was in the glove compartment so

they could talk about it, and Millbrook responded by

grabbing a black box and the marijuana from the glove

compartment and fleeing.

No. 07-2931 3

Officer Blackert gave chase. The chase ended after

15 or 20 seconds when Millbrook disappeared behind a

house. Millbrook walked back around the house with

his hands in the air saying, “You ain’t got me with noth-

ing.” Although Millbrook did in fact have nothing, a

search of his flight path turned up the black box from

his glove compartment, the baggie of marijuana, and

several tissues with crack cocaine, all inside a brand new

(with the city tag still attached), otherwise empty garbage

can in the yard where Millbrook had run out of Officer

Blackert’s sight. Millbrook was then arrested and

searched, and $1,039 in cash was recovered from his

pocket.

After the incident with Officer Blackert, police

obtained search warrants for Millbrook’s mother’s house

in Rock Island. The search revealed two safes in the attic,

and one in a bedroom closet. The two attic safes con-

tained ammunition and a total of eight guns (three in one

and five in the other). The remaining safe contained

personal papers belonging to Millbrook’s brother

Theodore (who lived there), and a small amount of mari-

juana. There were three scales on the closet shelf near the

safe. Based on the evidence uncovered in the search and

another report from Kristina that Millbrook kept drugs

and firearms in a storage unit, police obtained a warrant

to search two storage units at AAA Self Storage in Rock

Island. One unit contained a small safe with a box of

ammunition inside.

After his arrest, Millbrook made a number of telephone

calls to his brother Theodore from the Rock Island County

4 No. 07-2931

Jail. In the recorded calls, Millbrook tried to talk Theodore

into taking responsibility for the guns. Millbrook was

also recorded arguing with his wife, Kristina, and threaten-

ing to kill her when he was released from prison.

Before trial, Millbrook moved to suppress the evidence

found in the trash can as well as the guns seized pursuant

to the warrants. After an evidentiary hearing, the district

court denied Millbrook’s motion in its entirety. Before

trial, Millbrook also moved in limine to exclude

evidence of a previous drug conviction, but the district

court denied his motion.

At trial, the jury heard from Officer Blackert, the other

officers who assisted in Millbrook’s arrest, Millbrook’s

brother Theodore, and Special Agent Jon Johnson. Agent

Johnson testified that in his experience 10.6 grams of

cocaine would “definitely” be for redistribution. He also

testified that the small denominations comprising the

$1,039 in cash found in Millbrook’s pocket were con-

sistent with drug distribution. The jury also heard the

recorded conversation between Millbrook and Kristina.

The jury found Millbrook guilty on all counts of the

superseding indictment.

II.

A. Motion to Suppress

Millbrook argues that the district court erred by

denying his motion to suppress the evidence seized in the

No. 07-2931 5

searches of his mother’s home and the storage units.1

When a search is executed pursuant to a facially valid

warrant, we review the district court’s findings of

historical fact for clear error, and its legal conclusions,

including the underlying question of whether probable

cause for the warrant existed, de novo. See United States

v. McIntire, 516 F.3d 576, 577-78 (7th Cir. 2008) (resolving

“intra-circuit conflict” regarding proper standard of

appellate review when warrant has issued). On the

mixed question of whether the supporting affidavit

contained facts amounting to probable cause, we review

the issuing judge’s conclusion with “great deference,”

without giving any weight to the district court’s later

resolution of that question. Id.; Ornelas v. United States,

517 U.S. 690, 696-97 (1996). The district court agreed with

Millbrook that the warrant to search his mother’s house

was inadequate, but upheld it nevertheless under the

good-faith exception to the exclusionary rule articulated

in United States v. Leon, 468 U.S. 897 (1984). The district

court upheld the second search under Leon as well,

without deciding whether the warrant itself was valid.

Probable cause to issue a search warrant is established

when the information in the supporting affidavit, taken

as a whole, provides information that would lead a rea-

sonable person to believe there is a fair probability that

contraband or evidence of a crime will be found. Illinois

v. Gates, 462 U.S. 213, 238-39 (1983); United States v. Curry,

538 F.3d 718, 729 (7th Cir. 2008).

1

He has abandoned his challenge to the evidence recovered

as a result of his encounter with Officer Blackert.

6 No. 07-2931

The first affidavit (for the search of Millbrook’s mother’s

home) recounts Kristina’s allegation that Millbrook kept

drugs and firearms at his mother’s home. It also details

Millbrook’s encounter with Officer Blackert that led to

the discovery of the crack cocaine and the marijuana.

Although Millbrook’s possession of crack tends to sub-

stantiate Kristina’s claim that she had seen him with

crack cocaine, it does little to lend credence to her bare

assertion that Millbrook kept drugs and firearms at his

mother’s home. On that front, the affidavit simply recounts

that in the affiant’s experience, individuals who sell

marijuana and controlled substances often keep drugs

and other materials related to drug sales in their homes.

It is thus a close call whether the affidavit as a whole

provided probable cause. A close call coupled with the

“great deference” afforded the issuing judge means that

the warrant is likely valid.

We need not decide that issue, however, because the

fruits of the search are undoubtedly admissible, as

the government urges, under the good-faith exception

articulated in Leon. Under Leon, it is inappropriate to

suppress the fruits of a search conducted pursuant to a

later-invalidated warrant provided the executing

officers relied on the warrant in good faith. Leon, 468 U.S.

at 922-23; United States v. Woolsey, 535 F.3d 540, 546 (7th

Cir. 2008). That the officers obtained a warrant is itself

prima facie evidence of good faith. Leon, 468 U.S. at 922;

United States v. Watts, 535 F.3d 650, 657 (7th Cir. 2008).

Millbrook can rebut that presumption by demonstrating,

as relevant here, that the supporting affidavit was “ ‘so

lacking in indicia of probable cause as to render official

No. 07-2931 7

belief in its existence entirely unreasonable.’ ” Leon, 468

U.S. at 923 (quoting Brown v. Ill., 422 U.S. 590, 611 (1975)

(Powell, J., concurring)).

Neither the supporting affidavit for the search of his

mother’s home nor the affidavit to search the storage

unit fall into this category. As discussed above, the first

affidavit detailed a tip from Kristina that Millbrook

stored drugs and weapons at his mother’s home. Further

investigation turned up Millbrook outside of the home,

carrying over 10 grams of crack cocaine. This gave some

credence to Kristina’s assertions, and the affidavit

detailing this information was certainly not so utterly

lacking in facts supporting probable cause that no rea-

sonable officer could rely upon it. Likewise, the affidavit

requesting a warrant for the storage unit contained facts

supporting the existence of probable cause: the first search

had indeed turned up a number of weapons, a fact which

tended to make Kristina’s assertions about the storage

unit more believable. We thus reject Millbrook’s claim

that the evidence uncovered in the searches should

have been suppressed. United States v. Carmel, 548

F.3d 571, 576-77 (7th Cir. 2008).

B. Introduction of Rule 404(b) Evidence

Millbrook also claims that the district court erred in

admitting under Federal Rule of Evidence 404(b) evidence

of a 1994 conviction for delivery of a controlled sub-

stance. Before trial, Millbrook moved in limine to exclude

evidence of the drug sale and resulting conviction. In

denying Millbrook’s motion, the district court accepted

8 No. 07-2931

the government’s contention that the prior conviction

was relevant to some other purpose beyond Millbrook’s

propensity to sell crack. The court also concluded that

the 12 years that had elapsed since the prior conviction

did not amount to an “excessive” period of time. We

review the district court’s evidentiary decision for an

abuse of discretion. United States v. Reyes, 542 F.3d 588,

592 (7th Cir. 2008). Even erroneous evidentiary rulings

will not be overturned if the resulting error was harmless.

United States v. Wantuch, 525 F.3d 505, 513 (7th Cir. 2008).

Rule 404(b) prohibits the admission of prior crimes

or bad acts to prove that the defendant has a propensity

to commit crimes and acted in conformity therewith.

Fed. R. Civ. P. 404(b). Such evidence may be admitted,

however, if it is offered for other purposes, such as estab-

lishing intent, knowledge, motive, or opportunity. To be

admissible, the evidence of a prior conviction or bad

act must meet the following criteria: (1) it must be

directed toward establishing a matter in issue other than

the defendant’s propensity to commit the crime charged;

(2) it must be similar enough and close enough in time

to be relevant to the matter in issue; (3) it must be

sufficient to support a jury finding that the defendant

committed the similar act; and (4) its probative value

must not be substantially outweighed by the danger of

unfair prejudice. E.g., Watts, 535 F.3d at 657-58.

Millbrook maintains that the evidence of his prior

conviction fails on the first, second, and fourth prongs

of the inquiry. He argues that, given the differences

between his prior offense and the charged offense, the

No. 07-2931 9

previous conviction served no purpose beyond demon-

strating his propensity to engage in criminal conduct. The

government contends that Millbrook’s defense—that he

possessed the crack but never intended to distribute

it—made the prior conviction particularly relevant to

establishing intent.

As for whether the evidence was relevant to any matter

in issue beyond propensity, we have repeatedly recognized

that evidence of a prior drug conviction is “especially

relevant and probative when” a defendant concedes

possession of narcotics but denies the drugs were

intended for anything beyond personal use. United States

v. Puckett, 405 F.3d 589, 596 (7th Cir. 2005); accord United

States v. Harris, 536 F.3d 798, 808 (7th Cir. 2008); United

States v. Hurn, 496 F.3d 784, 787 (7th Cir. 2007).

Although the line between propensity and intent is a

fine one, the district court was within its discretion to

conclude that Millbrook’s prior conviction was relevant to

the disputed issues of Millbrook’s knowledge and intent.

See United States v. Chavis, 429 F.3d 662, 673 (7th Cir. 2005)

(Cudahy, J., concurring) (“To meet the test of Rule 404(b),

there must be a showing that an issue has been joined as

to intent, or another of the 404(b) categories, discrete

from a showing of mere propensity.”). In light of

Millbrook’s defense, the prior conviction was admissible

to cast doubt on his assertion that he never intended to

distribute the 10.6 grams of crack and to shed light on his

knowledge of distribution methods. Although the court

could have been more thorough in its discussion on this

point, it is clear that it listened to the arguments on both

10 No. 07-2931

sides before concluding that the government “made a

valid showing under knowledge, plan, lack of mistake,

or accident.”

The question remains, however, whether the consider-

able prejudicial impact of the evidence outweighed its

probative function, particularly in light of the elapsed

time between the two charges and the differences

between the two crimes. The 12-year gap between this

event and Millbrook’s possession of 10.6 grams of crack

certainly diminishes the probative value of the prior sale.

However, a temporal gap need not be fatal to admissibil-

ity, especially when, as is the case here, the defendant has

spent much of the intervening time incarcerated. See

United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007)

(noting that five and six-year time gaps were “a bit mis-

leading” since the defendant “could not have participated

in robberies during many of the intervening years as he

was incarcerated”); see also United States v. Macedo, 406

F.3d 778, 793 (7th Cir. 2005) (upholding court’s admission

of evidence of cocaine sale nine years before). Focusing on

the time-frame itself, the government parades out cases

admitting prior bad acts that occurred as many as ten and

13 years before the charged crimes. See United States v.

Hurn, 496 F.3d 784, 788 (7th Cir. 2007) (10-year-old drug

conviction relevant to intent when defendant claimed he

was an innocent bystander to cocaine distribution);

United States v. Polichemi, 219 F.3d 698, 709-10 (7th Cir.

2000) (10-year gap upheld in fraud case in part because

prior behavior provided evidence of intent); United

States v. Wimberly, 60 F.3d 281, 285 (7th Cir. 1995) (allowing

13-year gap when sexual molestation crimes were “virtu-

No. 07-2931 11

ally identical”). Given the large temporal gap here, the

government has an increased obligation to demonstrate

the earlier conviction’s continued relevance. Although

we think the case a very close one, we conclude that the

district court was within its substantial discretion to

admit the evidence of Millbrook’s prior sale. The jury

heard evidence that in 1993, Millbrook flagged down an

undercover police officer and offered to sell him a 1/2-gram

rock of crack cocaine for $50. As discussed above, this

incident sheds some light on Millbrook’s intent with the

10.6 grams recovered in this case, as well as his knowledge

of cocaine distribution practices. We emphasize, however,

that the 12-year gap puts this case at the outer limits of

what is permissible under Rule 404(b). See Polichemi, 219

F.3d at 709 (characterizing conduct that occurred more

than 10 years prior to charged crime as “at the outer

edges” of Rule 404(b)’s requirements); cf. United States v.

Garcia, 291 F.3d 127, 137-38 (2d Cir. 2002) (rejecting gov-

ernment’s contention that drug transaction occurring

12 years prior was admissible).

We are also unconvinced by Millbrook’s claim that the

events are not sufficiently similar because the prior con-

viction involved a hand-to-hand transaction and his

current conviction stems from his possession of crack. The

similarity inquiry centers on the purpose for which the

conviction is offered. Macedo, 406 F.3d at 793. The fact

that Millbrook had previously sold a 1/2-gram rock of

cocaine undermined to some extent his vigorous attack of

Agent Johnson’s testimony that Millbrook possessed more

than a personal use quantity of crack, and established his

knowledge of the value of smaller amounts of crack. See

United States v. Perkins, 548 F.3d 510, 514 (7th Cir. 2008)

12 No. 07-2931

(“His 1998 and 2003 convictions for possession of less

than 15 grams of cocaine are probative of his knowledge

that even one gram has value.”); United States v. Jones,

455 F.3d 800, 809 (7th Cir. 2006) (eight-year-old drug

trafficking conviction relevant and probative of defen-

dant’s “knowledge of the drug trade and the practices of

drug dealers [and his] . . . knowledge of the commercial

value of even small amounts of the drug and therefore his

intent to sell the lesser amount.”). We are therefore unper-

suaded by Millbrook’s argument that the prior conviction

is too dissimilar to be admissible. See Macedo, 406 F.3d at

793 (rejecting defendant’s claim that prior act was too

dissimilar because it involved cocaine and current con-

viction was for methamphetamine); United States v. Mounts,

35 F.3d 1208, 1214-15 (1994) (upholding admission of

prior attempt to purchase cocaine despite “significant”

differences from charged conduct).

Finally, we agree with the government that the

probative value of the evidence was not outweighed by

its prejudice, which was lessened by the district court’s

limiting instructions. The district court repeatedly cau-

tioned the jury to consider the prior conviction only for the

limited purpose of evaluating Millbrook’s intent or demon-

strating his knowledge or absence of mistake, thereby

reducing the possibility that Millbrook was unfairly

prejudiced by the evidence. Jones, 455 F.3d at 809.

C. Expert Testimony

Millbrook next contends that the district court abused

its discretion by allowing Agent Jon Johnson to testify as

No. 07-2931 13

an expert regarding the thousand dollars in cash recovered

in Millbrook’s pocket. Over Millbrook’s objection, the

district court allowed Agent Johnson to testify that crack

addicts, typically strapped for cash, often purchase crack

using small-denomination bills referred to as “street bills.”

Agent Johnson opined that the number of small bills

Millbrook was carrying in his $1039 bundle ($49 in one-

dollar bills, $150 in five-dollar bills, $60 in tens, and $280

in twenties) was consistent with drug distribution.

The critical inquiry when considering the admissibility

of expert testimony is whether the testimony will assist

the jury to resolve a disputed issue. Federal Rule of

Evidence 702 provides that “[i]f scientific, technical, or

other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experi-

ence, training, or education, may testify thereto in the

form of opinion or otherwise.” We have consistently held

that because most jurors are unfamiliar with the

specifics of the drug trade, expert testimony related to the

mechanics of drug sales is permissible. E.g., United States

v. Glover, 479 F.3d 511, 516 (7th Cir. 2007); United States

v. Cruz-Velasco, 224 F.3d 654, 660 (7th Cir. 2000) (collecting

cases).

Millbrook concedes, as he must, that jurors are unlikely

to know how most drug users tend to pay for their drugs

and that Agent Johnson’s testimony on that point is

therefore helpful. He contends, however, that the average

juror certainly understands “what it means to carry cash

in one’s pocket.” Given this, Millbrook believes that

14 No. 07-2931

Agent Johnson’s testimony about the large sum of cash

was unhelpful.

Millbrook’s argument misses the mark. Undoubtedly

the jury needs no assistance in comprehending the simple

fact that Millbrook was carrying just over $1,000 in his

pocket. That was not the point of Agent Johnson’s testi-

mony. He explained the potential significance of both the

cash and the small bills, two areas where his expertise as

a Drug Enforcement Agent unquestionably assisted the

jury in understanding a disputed issue—namely, whether

Millbrook had $1000 dollars in his pocket because his

mother had given him $800 to pay a utility bill, as he

claimed, or because he was carrying the proceeds of drug

sales. See United States v. Smart, 98 F.3d 1379, 1390 n.15

(D.C. Cir. 1996) (expert testimony on “large amounts

of cash in small-denomination bills” proper); United

States v. Peters, 15 F.3d 540, 544-45 (6th Cir. 1994) (“Expert

testimony indicated that amount of drugs, the currency

denominations, and the presence of a pager were con-

sistent with drug distribution.”) (emphasis added).

D. Witness Retaliation

Millbrook next argues that there was insufficient evi-

dence to support his conviction for witness retaliation. In

reviewing the sufficiency of the evidence, we ask only

whether, viewing the evidence in the light most favorable

to the government, there is any evidence from which a

rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt. E.g., United States v.

Jackson, 540 F.3d 578, 593 (7th Cir. 2008).

No. 07-2931 15

Millbrook was convicted of violating 18 U.S.C.

§ 1513(b)(2), which provided 2 in relevant part as follows:

(b) Whoever knowingly engages in any conduct and

thereby causes bodily injury to another person . . . or

threatens to do so, with intent to retaliate against

any person for—

...

(2) any information relating to the commission or

possible commission of a Federal offense or a violation

of conditions of probation, supervised release, parole,

or release pending judicial proceedings given by a

person to a law enforcement officer;

or attempts to do so, shall be fined under this title or

imprisoned not more than 10 years, or both.

18 U.S.C. § 1513(b)(2) (West 2007).

Millbrook argues that although the jury heard him

threaten Kristina in the recorded phone call, the govern-

ment failed to prove a link between his threats and her

provision of information. The jury heard a recorded

conversation between Kristina and Millbrook in which

the two were arguing over Kristina’s decision to sell

Millbrook’s car. Their profanity-laced exchange over the

car escalated into a series of direct insults that included the

following exchange, which we quote directly from the

2

After Millbrook’s conviction, section 1513(b)(2) was

amended to increase the maximum penalty for a violation

from ten to twenty years. See Pub. L. 110-177, § 206(3)(B) (2008).

16 No. 07-2931

transcript of the call (“KM” refers to Kim Lee Millbrook

and “TM” refers to Kristina Millbrook):

KM: Bitch you got me locked up. You stinkin ho[.]

TM: Sure, sure didn’t[.]

KM: But your day is comin, I betch you that. I betch

your day come ho. I betch you that.

TM: Yup.

KM: It’s comin. It’s comin. It’s comin bitch.

...

KM: You punk motherfucker.

TM: [D]on’t give a fuck about you.

KM: Punk ass ho, what the fuck is you talkin’ about[?]

Bitch gonna talk shit to me, I’m locked up be-

cause of you mother fucker.

TM: You sure am. (Inaudible)

KM: You punk ass ho. I betch you I get your bitch ass.

TM: (Inaudible) go to prison cause of me.

...

KM: All I want to do is walk the street.

TM: (Inaudible) court.

KM: Then come to court bitch. I’m gonna tell ‘em the

guns was yours you stinkin ho. Bitch, you’re the

one that tell ‘em where they was at.

TM: Yeah.

No. 07-2931 17

KM: Bitch. You’re the one that gave em the keys.

You’re the one tell ‘em, where the shit was at.

It was your shit bitch.

...

KM: I’m gonna kill you ass ho. I’m gonna getch you,

I swear on my mama. I’m gettin you. I’m gonna

getch you. Now you can take it as you want.

TM: I’ll take it (inaudible).

KM: You[’re] done, you[’re] done, the day I walk the

street bitch your ass is out ho.

TM: I don’t give a fuck.

Millbrook argues that although he threatened Kristina

in the recorded call, no rational jury could have con-

cluded that he did so as a response or in retaliation for

the information she provided to Officer Blackert, as

required by the witness retaliation statute. We disagree.

Millbrook lashes out at Kristina for her role in his arrest,

and goes on to threaten her in no uncertain terms. It is a

fair inference that Millbrook issued the menacing “I’m

gonna getch you” warning in response to Kristina’s

decision to tell Officer Blackert that Millbrook possessed

drugs and weapons in violation of the terms of his parole.

Clearly this interpretation of the conversation falls

within the statutory definition of witness retaliation:

threatening to cause bodily injury to retaliate for informa-

tion given to law enforcement regarding probation viola-

tions. See 18 U.S.C. § 1513(b)(2). Millbrook’s spin on the

conversation—that although Millbrook and Kristina

exchanged insults and displayed the ugly side of their

18 No. 07-2931

rocky relationship, Millbrook was not threatening

Kristina in response to her provision of information to the

police some four months prior—may be plausible, but the

jury was not required to accept it. Maher v. City of Chi., 547

F.3d 817, 825 (7th Cir. 2008).

E. Cumulative Error

Millbrook next contends that even if none of the errors he

alleges warrant reversal when considered in isolation,

together they amount to cumulative error necessitating

reversal. See, e.g., United States v. Smith, 502 F.3d 680, 690

(7th Cir. 2007) (“Although any single error by itself may

be insufficient to taint a jury, the combined effect of

multiple erroneous rulings may result in significant harm

necessitating another trial.”). The obvious problem with

this line of argument is that, as discussed above, we do

not believe any of the district court’s trial rulings

amounted to an abuse of discretion. There is thus no

reason to believe that Millbrook received an unfair trial.

See United States v. Price, 520 U.S. 753, 761 (2008).

F. Sentencing

Lastly, Millbrook argues that resentencing is necessary

in light of the Supreme Court’s decision in Kimbrough

recognizing a district court’s authority to take into account

the sentencing disparity between crack and powder

cocaine offenses when fashioning a sentence under 18

U.S.C. § 3553(a). See Kimbrough v. United States, 128 S. Ct.

558, 573-75 (2007). He also claims that Amendment 706 to

No. 07-2931 19

the Sentencing Guidelines—which reduced the disparity

between crack and powder cocaine offenses—renders

his sentence invalid.

We disagree. Millbrook was sentenced as a career

offender, which means that the crack and powder

cocaine disparity in the Guidelines did not affect his

sentence. His base offense level was determined, not by

drug quantity, but by the statutory maximum applicable

to his offense under 21 U.S.C. § 841(b)(1)(A). See U.S.S.G.

§ 4B1.1(b). Thus, any discrepancy that may arise under

§ 4B1.1 arises on account of § 841(b) itself—congressional

legislation that, in contrast to the Sentencing Guidelines, is

not advisory. Thus, Kimbrough’s discussion of a district

court’s discretion to take into account the crack/powder

disparity is of no consequence to a defendant sentenced

under § 4B1.1 as a career offender. See United States v.

Harris, 536 F.3d 798, 813 (7th Cir. 2008) (collecting cases).

Neither is Amendment 706, which applies to the drug

quantity table in U.S.S.G. § 2D1.1, not the career offender

provision in § 4B1.1. Harris, 536 F.3d at 813; see also United

States v. Clay, 524 F.3d 877, 878-79 (8th Cir. 2008) (“Al-

though the recent amendments to the sentencing guide-

lines 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 . . . .”).

Although the ultimate guideline range recommended by

§ 4B1.1(b) itself is still advisory, Harris, 536 F.3d at 813,

there is nothing in the record to suggest the district court

misunderstood its authority to depart from the range

specified by the career-offender guidelines. The district

20 No. 07-2931

court here considered the factors in § 3553(a) and con-

cluded after reviewing Millbrook’s lengthy criminal

history that Millbrook “seemed to be the kind of person

that Congress was thinking of . . . when they created this

category of armed career criminal.” We are thus equally

unpersuaded by Millbrook’s assertion that remand for

resentencing is warranted under Gall v. United States, 128

S. Ct. 586 (2007), which was decided several months

after his sentencing. Gall, which reiterates the proper post-

Booker procedure for imposing a sentence, is not helpful

to Millbrook since there is no suggestion that his guide-

line range was incorrectly calculated or that the district

court failed to make an “individualized assessment

based on the facts presented.” Id. at 97.

III.

For the foregoing reasons, we A FFIRM Millbrook’s

convictions and sentence.

1-23-09