NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 5, 2009 *
Decided August 27, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08-2587
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
BRIAN NELSON, No. 04 CR 423
Defendant-Appellant.
Amy J. St. Eve, Judge.
ORDER
This is Brian Nelson’s second trip to this court. We first encountered him after he
was convicted, along with many others, on a drug conspiracy count for his role in a long-
running narcotics business on the west side of Chicago. Five defendants appealed and all
*
After examining the briefs and the record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R.
App. P. 34(a)(2).
No. 08-2587 Page 2
except Nelson came up empty. Nelson got half a loaf--his conviction was affirmed but we
vacated his 250-month sentence.
Nelson was no stranger to the police, having been arrested on multiple occasions for
his drug related (and other) shenanigans. At his sentencing hearing the district court
looked at five of Nelson’s arrest reports, which overlapped with the dates of the
conspiracy, and added up the amount of drugs involved to calculate his guidelines range.
During his first appeal, Nelson argued that the arrest reports were unreliable. We agreed
and remanded for resentencing, asking the court to explain its basis for crediting the
reports. United States v. McMahan, 495 F.3d 410, 425-26 (7th Cir. 2007).
On remand, Nelson faired well. After filing his resentencing memorandum, the
probation officer submitted a revised presentence report, which lowered the amount of
drugs attributed to him, but again based the drug finding largely on Nelson’s arrest
records. Nelson responded by filing objections to the updated PSR, which prompted the
probation officer to again revise the drug quantities downward in a supplement. Nelson,
still unsatisfied, lodged more objections to the supplement, but the district court adopted
the probation officer’s recommendations, which, by then, were supported by the arrest
records, trial testimony, lab reports, and state court records. The court sentenced Nelson to
126 months of imprisonment, near the bottom of his guidelines range. Although this
sentence cuts Nelson’s prison time nearly in half, he has still found reason to appeal.
Nelson’s guidelines range is driven primarily by his arrest in 2003 for possessing
cocaine, so we will begin with his arguments for excluding the drugs involved in that
arrest. According to the police report (as described in the PSR), Nelson was caught near
one of the conspiracy’s sale points with a large bag containing 131 smaller ziploc bags of
what the officers suspected was crack cocaine. During resentencing, Nelson submitted a
lab report from the Illinois State Police, who tested and weighed the drugs without the
extraneous bagging material. According to that report, the drugs in 80 of the baggies,
totaling 15.4 grams of a chunky substance, tested positive for cocaine. The remaining 51
baggies, which contained 9.6 grams of the chunky substance, were left untested. Nelson
was later convicted in state court of possessing more than 15 grams but less than 100 grams
of a substance containing cocaine. Based on this information, the district court added 25
grams of crack cocaine (15.4 grams of the tested substance + 9.6 grams of the untested
substance) to Nelson’s relevant conduct calculation.
Nelson first argues that there was not enough evidence to show that this arrest
involved crack cocaine, as opposed to powder cocaine, since the lab report (and other state
documents) only found the presence of cocaine, generically. But this omission means little
No. 08-2587 Page 3
since Illinois’s drug laws do not differentiate between types of cocaine, whether powder or
crack. See 720 ILL. C OMP. STAT. 570/401(a)(2), (c)(2). The lab report, however, did confirm
the presence of a chunky material which tested positive for cocaine. What’s more, evidence
presented at trial showed that Nelson was in the thick of the drug-selling conspiracy at the
time of his arrest, and the only rock-like drug he was selling was crack cocaine. At
sentencing, the district court is free to rely on a wide range of information, provided that
the information includes a “sufficient indicia of reliability to support its probable
accuracy.” United States v. Morrison, 207 F.3d 962, 967 (7th Cir. 2002) (citations and
quotations omitted). Here, the overlapping evidence and the court’s detailed explanation
supporting its determination assuage our initial misgivings regarding the reliability of the
arrest reports alone. Given this support, we find no error in the court’s conclusion that the
2003 arrest involved crack cocaine.
Nelson also argues that the untested amounts of drugs should be excluded from the
relevant conduct finding. But we will only reverse the court’s factual finding if it was
clearly erroneous, and we find no such error here. Morrison, 207 F.3d at 967. As the district
court noted, it is common practice for drug labs to test only a portion of the evidence
submitted. All the drugs recovered here not only looked similar, but they were all similarly
packaged and found together in the same larger bag. This evidence creates a reasonable
inference that the untested portions, like the tested portions, were in fact crack cocaine.
For the same reasons, Nelson’s challenges against including the drugs recovered
from his 1999 arrest also come up short. According to that arrest report, Nelson was found
at one of the conspiracy’s hot spots with a paper bag holding 101 tinfoil packets containing
what officers suspected was heroin and 24 small bags containing what they thought was
crack cocaine. The Illinois State Police tested a portion of the drugs--some of the similarly
packaged powdery substance tested positive for heroin (although, on the line immediately
below the heroin finding, “Cocaine” was also listed) and some of the similarly packaged
chunky substance tested positive for cocaine. Nelson was indicted and eventually found
guilty in state court of possessing with intent to deliver heroin and cocaine. Just as before,
the district court added both the tested and untested portions of the drugs recovered to
Nelson’s relevant conduct finding.
Nelson again points out that the lab report and state sentencing transcripts do not
identify the form of cocaine involved. But, as we’ve just noted, the distinction between the
different forms of cocaine is immaterial in Illinois, so this omission is meaningless. The
district court, by relying on the arrest report identifying the drugs as crack cocaine, the
lab’s description of the drug as a chunky form of cocaine, along with evidence presented at
trial, did not clearly err when inferring that the drugs were, in fact, crack cocaine. And,
No. 08-2587 Page 4
given the context, we find no clear error in the court’s decision to count the untested
portions of the drugs, which appeared identical and were similarly packaged to the drugs
that were tested.
Nelson raises an additional argument against counting the heroin involved in this
arrest. He notes that, below the finding of heroin, the lab report also lists “Cocaine,” and
because there is no such drug as “heroin cocaine,” he argues that the report is inherently
unreliable. In context, the addition of the word cocaine seems like a typo--its atypically
placed and at odds with both the arrest report and Nelson’s conviction. And in any event,
Nelson forfeited this particular argument by failing to raise it before the district court, and
subsequently we are limited to plain error review. See United States v. Irby, 558 F.3d 651, 655
(7th Cir. 2009). Nelson, however, makes no attempt to argue that the court’s heroin finding
amounts to plain error, and we can discern no such error given the otherwise broad
support for the court’s conclusion.
Next, Nelson contends that the district court erred when it included the drugs
recovered from his 1997 arrest and state conviction for possessing cocaine. He was nabbed
after police spotted him buying .25 grams of what officers thought was crack cocaine.
Nelson reiterates his argument that the crack finding is unsupported and also contends that
this arrest should be excluded since he was caught purchasing a small amount of drugs,
activity unrelated to the drug selling conspiracy which was the subject of his conviction.
But his challenges face a major hurdle--excluding this small amount of crack from the drug
quantity doesn’t change Nelson’s guidelines range. Its exclusion would reduce the relevant
conduct finding to the equivalent of 615.78 kilograms of marijuana (from 620.78 kilograms),
but Nelson’s guidelines range remains unchanged so long as more than 400 kilograms was
involved. U.S.S.G. § 2D1.1.
Lastly, Nelson contends that the district court erred when it passed over in silence
his argument for a reduced sentence based on Kimbrough v. United States, 128 S. Ct 558
(2007). Nelson did not raise this argument in his initial resentencing memorandum, nor in
his objections to the corrected PSR (although he did mention the Sentencing Commission’s
evolving view on the disparity between sentences for crack and powder cocaine offenses in
this submission). Instead, he waited until after the supplement to the corrected PSR was
filed to raise a Kimbrough argument, urging the court to ameliorate the 100-to-1 ratio
between punishments for crack and powder cocaine offenses by exercising its sentencing
discretion. And at the resentencing hearing, when given the chance to articulate any
arguments under the sentencing factors listed in 18 U.S.C. § 3553, he made no mention of
his Kimbrough argument. The district court is required to “consider the factors listed in §
3553(a) and address explicitly any substantial arguments” made by the defendant. United
No. 08-2587 Page 5
States v. Martinez, 520 F.3d 749,753 (7th Cir. 2008) (emphasis in original). We do not require
the court to address stock arguments, like Nelson’s Kimbrough challenge, especially those
thrown in at the last moment and in passing. While an explicit discussion of the argument
may have been helpful, its omission is not fatal. Mr. Nelson’s reduction of 124 months in
his sentence is all he is entitled to.
Accordingly, the judgment of the district court is AFFIRMED.