In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3479
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ONFREDRICK F. B OLING,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:08-CR-30004-001—Michael J. Reagan, Judge.
A RGUED N OVEMBER 2, 2010—D ECIDED M AY 24, 2011
Before C UDAHY, F LAUM, and K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Defendant Ronfredrick F.
Boling was convicted in federal court of one count of
possession with the intent to distribute less than 5 grams
of a mixture or substance containing cocaine base and
two counts of distributing less than 5 grams of a mixture
or substance containing cocaine base. The court issued
Boling an above-guidelines sentence of 180 months
in prison. Boling appeals his conviction, arguing that
2 No. 09-3479
various errors warrant reversal. Alternatively, Boling
seeks a limited remand for resentencing, arguing that
the district court committed procedural errors. We
affirm Boling’s conviction and sentence.
I. B ACKGROUND
At around 3:00 a.m. on October 3, 2007, Detective Kevin
Jackson of the Mount Vernon, Illinois, Police Department
(“MVPD”) responded to a report of a burglarized apart-
ment. On his way, Detective Jackson passed Boling and
noticed that Boling smelled of burnt marijuana. When
he arrived at the apartment, he noticed a footprint on the
kicked-in front door. He interviewed the apartment’s
occupants and then left to pursue Boling.
After catching up to Boling, Detective Jackson
inspected Boling’s shoes, but they did not match the
footprint on the apartment door. He then questioned
Boling, who admitted having marijuana on his person.
Based on this information, Detective Jackson searched
Boling. At some point during the questioning or search,
MVPD Officer Kent Jackson, Detective Jackson’s twin
brother, arrived and provided backup.
Detective Jackson found marijuana in Boling’s pocket.
He also found a digital scale in another pocket and
sixteen individually packaged rocks of crack cocaine,
weighing 2.6 grams total, in the crotch of Boling’s pants.
Police later learned Boling had been convicted in 2005
for possession with intent to distribute cocaine base
under similar circumstances—Boling’s possession of
No. 09-3479 3
sixteen individually packaged rocks of crack cocaine,
weighing 2.2 grams total.
Boling was arrested and taken into custody. Later
that day, Captain Ron Almaroad interviewed Boling.
Almaroad was in charge of the drug task force in
Mount Vernon, and he was known by local drug users
and dealers for recruiting confidential informants. By
his own account, Almaroad made no threats or promises
to induce Boling to work as an informant. During the
interview, Boling admitted to possessing sixteen packets
of crack cocaine, but he claimed they were for personal
use. Boling was released on bond on October 11.
On October 18, Jeff McCurdy, acting as an informant
for Captain Almaroad, bought $50 worth of crack cocaine
from Boling. Captain Almaroad searched McCurdy
before and after the transaction, and McCurdy wore an
audio and video recording device to record the trans-
action. The recording showed a rapid exchange of objects
between McCurdy and Boling. After this exchange,
McCurdy met Captain Almaroad at a pre-arranged loca-
tion, where he delivered the crack cocaine he had pur-
chased to Captain Almaroad. On November 5, McCurdy
executed another controlled purchase of crack cocaine
from Boling. The exchange again was quick, but the
video of this transaction showed Boling reaching into
his mouth—where dealers and users in Mt. Vernon com-
monly hide crack cocaine—just before making the ex-
change with McCurdy. Again, McCurdy delivered the
crack cocaine he had obtained to Captain Almaroad.
Boling represented himself at trial. The theory of his
defense was that members of the MVPD—including
4 No. 09-3479
Captain Almaroad, Officer Jackson, and Detective
Jackson—had conspired to falsify evidence against him
to justify federal prosecution, which Captain Almaroad
could use to leverage him into working as a confidential
informant. Part of Boling’s trial strategy, then, was to
undermine the credibility of Captain Almaroad, Officer
Jackson, and Detective Jackson.
While cross-examining Officer Jackson, Boling asked
for proof that Detective Jackson was his identical twin.
The government suggested allowing Detective Jackson
into the courtroom. Though Detective Jackson had
already testified, the district judge called him into the
courtroom, told him to stand in front of the jury, and
then dismissed him.
While cross-examining Captain Almaroad, Boling
repeatedly questioned Captain Almaroad’s motives for
pursuing federal prosecution. He also asked about the
factors Captain Almaroad normally considers before
recommending a case for federal prosecution, his rela-
tionship with federal prosecutors, and any threats or
promises he had made to Boling about the possibility of
federal prosecution. In response to one such question,
Captain Almaroad explained that he based his decision
to pursue federal prosecution on Boling’s career offender
status.
On re-direct examination, the government asked
Captain Almaroad to explain the term “career offender
status.” He explained that someone who has been con-
victed of at least three serious drug offenses is a career
offender. The government then introduced a printout
No. 09-3479 5
from the Illinois Department of Corrections website
listing Boling’s prior Illinois convictions (“IDOC print-
out”). Captain Almaroad testified that he had viewed
this website before interviewing Boling, that he had seen
Boling had five felony drug convictions, and that he
therefore had known Boling was a candidate for
federal prosecution. The district court admitted the
testimony and the IDOC printout—over objections
of hearsay and relevance—as evidence of Captain
Almaroad’s reasons for pursuing federal prosecution.
Unbeknownst to the government, the district court,
and even Boling’s standby counsel, Boling was not a
potential career offender. The IDOC printout showed
Boling had two prior convictions that qualify as
controlled substance offenses, as defined by United
States Sentencing Guidelines § 4B1.2(b). But one of the
two convictions was inaccurately listed as an offense
that qualifies as a controlled substance offense. Actually,
Boling had been convicted of a possession offense that
does not qualify as a controlled substance offense.
After Captain Almaroad, Boling testified in narrative
form. He acknowledged his past offenses, including the
drug offenses listed in the IDOC printout, a conviction
for deceptive practice, and others. He then testified
that Captain Almaroad had manufactured evidence
against him in order to leverage him into working as
an informant. He admitted to having possessed
marijuana and a digital scale when he was searched on
October 3, but he denied possessing any crack cocaine.
He testified that Captain Almaroad and the MVPD had
6 No. 09-3479
fabricated evidence of crack cocaine possession in order
to bolster the threat of federal prosecution.
Boling also denied selling crack cocaine to McCurdy
on October 18 or November 5. He provided implausible
explanations of the video evidence. The video recording
from October 18 showed Boling with his arms crossed
during most of the encounter, but briefly showed one
extended arm, which then retreated into a folded-
arms position. McCurdy testified that Boling’s arm ex-
tended to transfer crack cocaine to him. Boling denied
ever moving his arms from a crossed position.
The video recording from November 5 showed Boling
reach into his mouth, then McCurdy reach into Boling’s
hand, transferring money for a small white object.
McCurdy testified that Boling had been hiding the
crack cocaine in his mouth, that he then took it out of
his mouth, and that he exchanged it for McCurdy’s
money. Boling denied having stored crack cocaine in
his mouth; he testified that he has a nervous twitch of
touching his tooth. Boling also denied exchanging
crack cocaine for cash; he testified that he had given
McCurdy nothing, but that McCurdy had held two
rocks of crack cocaine, and McCurdy had allowed Boling
to take one.
On cross-examination, the government questioned
Boling about his various past offenses. The court noted
Boling’s responses should be considered only for im-
peachment. On October 2, 2009, a federal jury found
Boling guilty of one count of possession with intent to
distribute less than 5 grams of a mixture or substance
containing cocaine base and two counts of distributing
No. 09-3479 7
less than 5 grams of a mixture or substance containing
cocaine base. The district court sentenced Boling to 180
months’ imprisonment, an upward departure from the
guidelines-recommended range. The district court cal-
culated the guidelines range of 84 to 107 months by
applying a two-point offense level enhancement for
obstructing justice. It then departed upward from the
guidelines, explaining that Boling’s multiple lies, crim-
inal history, and refusal to accept responsibility re-
quired a lengthy sentence. Boling timely appealed his
conviction and sentence.
II. A NALYSIS
On appeal, Boling argues that several errors, individually
and combined, deprived him of a fair trial. He identifies
these errors as: (1) the court’s admission of evidence
of Boling’s 2005 conviction under Federal Rule of
Evidence 404(b), (2) the court’s admission of the IDOC
printout and Captain Almaroad’s testimony about
Boling’s career offender status and prior criminal history,
(3) the government’s argument, in closing, that Boling’s
career offender status should be considered as evidence
of his credibility, and (4) the court’s demonstration of
bias against Boling by directing Detective Jackson to
enter the courtroom in response to Boling’s asking
Officer Jackson for proof of whether he and Detective
Jackson were identical twins. Alternatively, Boling
argues the district court abused its discretion by issuing
an above-guidelines sentence of 180 months’ imprison-
ment. We consider each of the purported trial errors
before considering Boling’s sentence.
8 No. 09-3479
A. Boling’s 2005 Conviction
Boling argues the district court erred by admitting
evidence of Boling’s 2005 conviction for possession
with intent to distribute crack cocaine. We review the
district court’s ruling for abuse of discretion. United
States v. Gorman, 613 F.3d 711, 717 (7th Cir. 2010).
The government could not properly introduce evi-
dence of Boling’s prior offense to show his propensity
to commit drug crimes, but it could properly introduce
the evidence to show his intent to commit the charged
crime. Fed. R. Evid. 404(b). Evidence of a prior offense
is admissible when:
(1) the evidence is directed toward establishing
a matter in issue other than the defendant’s pro-
pensity to commit the crime charged; (2) the evi-
dence shows that the other act is similar
enough and close in time to be relevant to the
matter in issue, (3) the evidence is sufficient to
support a jury finding that the defendant com-
mitted the similar act, and (4) the probative
value of the evidence is not substantially out-
weighed by the danger of unfair prejudice.
United States v. Long, 86 F.3d 81, 83 (7th Cir. 1996). Boling
argues the evidence of his 2005 conviction does not
satisfy the first, second, or fourth prong of this test.
According to Boling, his 2005 conviction was not admis-
sible for any of the “other purposes” anticipated by
Rule 404(b). The district court found Boling’s 2005 con-
viction was admissible to show Boling’s intent to
distribute the cocaine base found on his person during
No. 09-3479 9
the October 3, 2007, search. Boling argues his 2005 con-
viction could not be properly admitted to show intent
because he denied possessing crack cocaine, not the
intent to distribute it.
As Boling’s argument suggests, “[t]he most obvious
justifiable situation in which prior convictions are ad-
missible in drug prosecutions on the issue of intent are
in those situations in which the defendant, while
admitting possession of the substance, denies the intent
to distribute it.” United States v. Jones, 455 F.3d 800, 808
(7th Cir. 2006). While Boling did not concede possession
at trial, Captain Almaroad testified that, during their
October 3 interview, Boling had admitted to possessing
crack cocaine but had denied intending to sell it. More-
over, Boling maintained throughout trial that he had
used—but had not sold—drugs. So even though Boling
denied possession at trial, the district court did not
abuse its discretion by admitting evidence of his 2005
conviction to show his intent to distribute the crack
cocaine found on him during the October 3 search. See
United States v. Conner, 583 F.3d 1011, 1022 (7th Cir.
2009) (finding admission of Rule 404(b) evidence appro-
priate where defendant did “not contest the elements
of knowledge and intent, but instead maintain[ed] that
he did not commit the crime at all”).
Next, Boling argues his 2005 conviction was not suffi-
ciently similar to the charged offense to be relevant. He
claims that the only shared characteristic of his 2005
conviction and the charged offense is that they both
involve narcotics. This claim is ridiculous. In fact,
both offenses involved Boling’s possession of sixteen
10 No. 09-3479
individually packaged rocks of crack cocaine, weighing
between 2 and 3 grams. The incidents took place less
than three years apart. The second prong is satisfied.
Finally, Boling argues the unfair prejudice of admitting
his 2005 conviction outweighs any probative value of
the evidence. But Boling does not identify any prejudice
from the conviction; rather, he merely restates his argu-
ment that his 2005 conviction was only weakly similar
to the charged offense. Because Boling identifies no
unfair prejudice, and because his 2005 conviction is
sufficiently similar to the charged offense to be relevant,
we cannot say the district court abused its discretion
by admitting the evidence.
B. IDOC Printout and Career Offender Testimony
Boling claims the district court erred by admitting
evidence of the IDOC printout and by permitting
Captain Almaroad to testify about both the definition
of the term “career offender” and Boling’s criminal
history. In addition, he argues that he was denied due
process because he was convicted based upon this evi-
dence, which was later shown to be inaccurate.
1. Admissibility
At trial, Boling objected—on the grounds of relevance
and hearsay—to the admissions of the IDOC printout and
Captain Almaroad’s testimony about the definition of
“career offender” and Boling’s criminal history. On
appeal, he argues only relevance.
No. 09-3479 11
Boling’s defense relied on showing that Captain
Almaroad wanted to threaten him with federal prosecu-
tion so he would work as an informant. In response to
cross-examination from Boling, Captain Almaroad ex-
plained that he had pursued federal prosecution
because Boling would, if convicted, be eligible for a
career offender sentence enhancement. Any evidence of
Boling’s career offender status was relevant because
such evidence substantiated Captain Almaroad’s ex-
planation. See Fed. R. Evid. 401.
But not all of the IDOC printout or Captain Almaroad’s
testimony related to Boling’s career offender status.
The IDOC printout listed two convictions for possession
of a controlled substance, neither of which affects the
career offender enhancement. See U.S.S.G. § 4B1.2(b).
Similarly, Captain Almaroad testified that Boling had
five prior felony drug convictions, but not all felony
drug convictions influence the career offender enhance-
ment, so this testimony also went beyond explaining
Boling’s eligibility for the enhancement. See id. The
district court therefore may have erred by admitting
parts of the IDOC printout and Captain Almaroad’s
testimony about Boling’s five felonies.1
1
While parts of Captain Almaroad’s testimony and parts of
the IDOC printout did not relate to Boling’s career offender
status, they may still have been relevant to Captain Almaroad’s
decision to pursue federal prosecution. Because any error in
admitting this evidence was harmless, we need not decide
whether the admissions were erroneous.
12 No. 09-3479
Despite these potential errors, we will not reverse if
we are convinced the jury would have convicted Boling
absent the potentially erroneous admissions. Conner, 583
F.3d at 1025. In this analysis, we consider the overall
strength of the government’s remaining evidence
against Boling. See United States v. Savage, 505 F.3d 754,
762 (7th Cir. 2007).
The government argues any error was harmless
because Boling later testified in detail about his criminal
history. It cites no authority in support of this argument,
and we find none. Cf. United States v. Johnson, 617 F.3d
286, 299 n.7 (4th Cir. 2010) (concluding erroneous admis-
sion of testimony was not rendered harmless by defen-
dant’s testimony on the same subject because “the error
occurred prior to [the defendant] taking the stand,
making it impossible to make a post-hoc assessment
as to whether [he] would have testified without the
damaging, inculpatory testimony”). We therefore reject
the argument that the admissions of Captain Almaroad’s
testimony and the full IDOC printout, if erroneous,
would have been rendered harmless by dint of Boling’s
later testimony.
Nevertheless, we will not reverse because the
remaining evidence of Boling’s guilt is overwhelming.
United States v. Dennis, 497 F.3d 765, 769-70 (7th Cir. 2007).
The October 3 search of Boling’s person yielded sixteen
individually packaged rocks of crack cocaine and a
digital scale. Captain Almaroad testified that Boling
had admitted possessing the crack cocaine. Boling has a
prior conviction—based on very similar facts—for pos-
No. 09-3479 13
session with intent to distribute crack cocaine, which
was properly admitted to show his intent in this case.
There is video and audio evidence of each controlled
purchase of crack cocaine from Boling. McCurdy left
each time with $50 and returned each time with crack
cocaine. In response, Boling offers only accusations of
conspiracy and implausible explanations of the video
evidence.
Even without this overwhelming evidence, the
alleged error would be harmless. The district court prop-
erly admitted—with an appropriate limiting instruc-
tion—evidence of the crimes that had led Captain
Almaroad to believe Boling was eligible for a career
offender sentencing enhancement. Any prejudice from
the erroneous admission of evidence of two additional
(lesser) offenses was negligible.
2. Veracity
Boling argues he was denied a fair trial because he was
convicted based on evidence—that of his status as a
potential career offender—that was discovered after trial
to be inaccurate. But before he can make this argument
on appeal, he must have made it to the district court. See
Fed. R. Crim. P. 33; United States v. Ogle, 425 F.3d 471,
476 (7th Cir. 2005) (refusing to consider claim, unsupported
by newly discovered evidence, that government intro-
duced false testimony because it was not included in
a timely motion for a new trial); United States v. Higham,
98 F.3d 285, 293 (7th Cir. 1996) (concluding that the ques-
tion of whether newly discovered evidence entitled
14 No. 09-3479
defendant to a new trial “is one addressed to the
district court’s discretion, in the first instance”). Boling
did move for a new trial, but his motion did not refer
to any false testimony or evidence. We decline to
consider his argument for the first time on appeal.
C. Closing Argument
Boling asserts the government improperly argued
in closing that Boling’s career offender status was rele-
vant to his credibility. We review this as a claim of prose-
cutorial misconduct. United States v. Myers, 569 F.3d 794,
798 (7th Cir. 2009). Because Boling did not object at trial,
we review only for plain error. Id. Boling must show
that the district court’s response to the government’s
statement was a clear or obvious error that affected
Boling’s substantial rights and seriously affected
the fairness, integrity, or public reputation of the pro-
ceedings. Id. He must also show that the outcome of
the trial probably would have been different if not for
the prosecutor’s statement. United States v. Hills, 618
F.3d 619, 640 (7th Cir. 2010).
The government’s statements about Boling’s career
offender status did not give rise to plain error. We note
that the statements were part of a broader discussion of
Boling’s past offenses—including the offenses that pur-
portedly made Boling a career offender—and their
relation to his credibility. The government had ques-
tioned Boling about each of these prior offenses during
cross-examination in order to challenge his credibility.
Boling does not claim these offenses were improperly
No. 09-3479 15
admitted, nor does he contest the government’s use of
these statements during closing argument. He argues
only that the government’s utterance of the words
“career offender” deprived him of a fair trial. We dis-
agree. The allowance of the words “career offender”
during closing argument was not a plain or obvious
error. As used by the government, the term “career of-
fender” was little more than a restatement of the
offenses that the government had already mentioned
in closing argument. Nor did the allowance of the
words “career offender” affect Boling’s substantial
rights or the fairness, integrity, or public reputation of
the proceedings. Accordingly, we reject his argument
for reversal.
D. Demonstration of Bias
Boling argues that the district court demonstrated
bias against him by directing Detective Jackson to the
front of the courtroom during Boling’s cross-examina-
tion of Officer Jackson and that Boling was therefore
denied a fair trial. We will not reverse for judicial bias
unless Boling can show (1) that the district court judge
demonstrated actual bias regarding Boling’s honesty
or guilt and (2) that Boling suffered serious prejudice as
a result. United States v. Barnhart, 599 F.3d 737, 742 (7th
Cir. 2010). Because Boling did not timely object to the
judge’s actions, we again review only for plain error. Id.
at 743.
Boling has not shown that the district judge’s actions
constituted an obvious or clear error. A trial judge has
discretion to control the mode and order of witness
16 No. 09-3479
interrogation and evidence presentation. Fed. R. Evid.
611(a). The judge shall exercise this discretion in order
to “avoid needless consumption of time.” Id. Here,
the district judge instructed Detective Jackson to walk
to the front of the courtroom in response to Boling’s
question to Officer Jackson requesting proof that
he and Detective Jackson were identical twins. The
district judge likely took this action to avoid unneces-
sary testimony and evidence from both parties. The
district judge’s actions conveyed no bias regarding
Boling’s honesty or guilt. At worst, his actions demon-
strated doubts about the relevance of Boling’s question.
His actions were far from plainly erroneous.
E. Cumulative Error
Boling argues that, even if the errors he alleges were
individually harmless, together they constitute re-
versible error. See United States v. Isaacs, 593 F.3d 517, 528-
29 (7th Cir. 2010). Of the litany of errors Boling alleges,
he has shown at most one: the admission of those parts
of the IDOC printout and Captain Almaroad’s testi-
mony without bearing on his career offender status.
Therefore, the cumulative error doctrine does not apply.
Conner, 583 F.3d at 1027.
F. Sentencing
Finally, Boling argues that the district court abused its
discretion by sentencing him to an above-guidelines
sentence of 180 months’ imprisonment. We review the
No. 09-3479 17
reasonableness of a sentence imposed by the district court
for an abuse of discretion. United States v. Pineda-
Buenaventura, 622 F.3d 761, 778 (7th Cir. 2010). This stan-
dard of review applies regardless of whether the sen-
tence is inside or outside the guideline range. Gall v.
United States, 552 U.S. 38, 49 (2007). We review de novo
any alleged procedural error—such as failure to ade-
quately explain a departure from the guideline recom-
mendation or failure to consider the factors listed in
18 U.S.C. § 3553(a). See United States v. Hall, 608 F.3d
340, 346 (7th Cir. 2010); United States v. Anderson, 604
F.3d 997, 1003 (7th Cir. 2010).
Boling argues the district court did not adequately
explain its upward departure from the guidelines. To
the contrary, the district court thoroughly discussed its
reasoning. The real thrust of Boling’s argument is that
the district court based the above-guidelines sentence
primarily on Boling’s repeated lying under oath. Ac-
cording to Boling, the two-level obstruction of justice
enhancement prescribed by the guidelines fully accounts
for any and all instances of perjury. Boling is incorrect.
While the district court cannot impose multiple obstruc-
tion of justice enhancements, it can consider multiple
acts of obstruction in determining a sentence that
achieves the policy goals outlined in § 3553(a)(2). United
States v. Willis, 523 F.3d 762, 769-70 (7th Cir. 2008); see also
United States v. Furkin, 119 F.3d 1276, 1283-84 (7th Cir.
1997). Here, the district court followed our guidance in
Willis by considering Boling’s multiple acts of obstruc-
tion to determine a reasonable sentence. The district
18 No. 09-3479
court did mention that, were the sentencing guidelines
mandatory, it would have added separate obstruction
of justice enhancements for each obstructive act. We
need not consider what the court said it would have
done within the framework of an alternate legal system.
What the court actually did was determine the correct
guideline recommendation and then consider the ap-
propriate factors in § 3553(a) to determine a reasonable
sentence.
Boling also argues that the district court failed to prop-
erly consider the sentencing factors listed in § 3553(a).
Yet the court adequately explained its analysis of these
factors. Boling’s real argument is that the court’s con-
sideration of Boling’s acts of obstruction tainted the
analysis. This argument is unsupported and meritless.
Boling claims his sentence was substantively unreason-
able, but his argument depends—once again—on the
incorrect premise that the district court could not
consider additional acts of obstruction once it had
imposed the obstruction of justice enhancement. Our
task in reviewing a sentence is to decide whether the
district judge’s basis for imposing the sentence it did
was “logical and consistent with the factors set forth in
section 3553(a).” United States v. Williams, 425 F.3d 478,
481 (7th Cir. 2005). Boling has not shown that the
district court’s reasoning was illogical or inconsistent
with the factors listed in § 3553(a), so we will not
disturb Boling’s sentence.
No. 09-3479 19
III. C ONCLUSION
For the foregoing reasons, we A FFIRM Boling’s convic-
tion and sentence.
5-24-11