In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1446
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
H OWARD B AKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09 CR 20055—Michael P. McCuskey, Chief Judge.
A RGUED A PRIL 1, 2011—D ECIDED A UGUST 23, 2011
Before E ASTERBROOK, Chief Judge, and B AUER and
E VANS , Circuit Judges.
B AUER, Circuit Judge. A jury convicted defendant-ap-
pellant Howard Baker of possession with intent to distrib-
ute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 10-1446
and (b)(1)(B), and he was sentenced to 360 months’ im-
prisonment. Baker challenges the district court’s admis-
sion of evidence under Federal Rule of Evidence 404(b),
the sufficiency of the evidence used to prove possession,
and his sentence. For the following reasons, we affirm
Baker’s conviction and sentence.
I. BACKGROUND
On the night of July 24, 2009, Champaign Police Depart-
ment Officers Chris Aikman and Heidi Van Antwerp
were in the area of a reported battery when they spotted
Baker, who matched the description of the battery sus-
pect. The uniformed officers parked their marked
squad cars and walked into the front yard of 210 East
Hill Street, where Baker was talking on a cell phone
and eating a plate of food. Officer Aikman asked Baker
to come talk to him, and Baker walked over to the
officers and voluntarily handed over his identification.
Officer Aikman then told Baker that he was going to
pat him down and reached for his arm, at which
point Baker began running westbound on the sidewalk.
Officers Aikman and Van Antwerp chased Baker, with
Officer Aikman just a few feet behind Baker and within
sight the entire time. Officer Aikman caught up to
Baker on the west side of 204 East Hill Street and
tackled him onto a fence that runs between 204 East Hill
Street and 202 East Hill Street, causing the fence to col-
lapse. Baker regained his footing after being tackled
and began running east along Hill Street, following
the same path as the initial chase. Baker ran back to
No. 10-1446 3
210 East Hill Street and started to enter the house when
Officer Aikman tackled Baker a second time, this time
bringing him down and handcuffing him.
After walking Baker to the squad car, Officer Aikman
went back along the chase route to the portion of fence
that had collapsed during the struggle and saw two
baggies on the ground. The baggies contained 21.9 and
4.4 grams of crack cocaine, later stipulated to be 25.2
grams of crack cocaine. Baker denied that the baggies
were his and his fingerprints were not found on them.
Baker was charged with possession with intent to distrib-
ute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B).
A. Testimony at Trial
At trial, the government introduced testimony from
the arresting officers, an expert witness, and Baker’s
occasional girlfriend, Trena Keomala, who testified
under a grant of immunity. Keomala’s testimony can be
classified into two categories, one of which is at issue
in this appeal and one of which is not. First, Keomala
testified that she spoke to Baker on the night of the
offense before his arrest and that Baker informed her
that he was on the “Hill” (210 East Hill Street) because
that was where he “made his money.” When Keomala
asked whether Baker had any crack cocaine for her to
sell, Baker responded that he had only enough crack
cocaine for himself. Keomala also testified that the day
following Baker’s arrest, Baker related the previous eve-
ning’s events, telling her that right before his arrest he
4 No. 10-1446
had been standing outside 210 East Hill, “posted up”;
Keomala explained that “posted up” is slang for waiting
to exchange drugs for money. That part of Keomala’s
testimony is not at issue on appeal.
Second, Keomala testified that since late 2006, she
has routinely received crack cocaine from Baker, which
she would sell and Baker would receive the proceeds,
and that she had received crack cocaine from Baker to
sell just days before Baker’s arrest. This testimony is at
issue on appeal and is disputed.
B. Rule 404(b) Evidence
Before trial, the government filed a notice of intent to
call an informant who would testify that Baker had dis-
tributed crack cocaine to him for resale on prior occa-
sions. The government did not include Keomala’s dis-
puted testimony in this notice, even though she too
would testify that Baker distributed crack cocaine to her
for resale. In response to the notice of intent, defense
counsel filed a motion to bar all Rule 404(b) evidence.
The judge denied this motion. Subsequently, when
Keomala was called as a witness at trial, the judge mis-
takenly believed that Keomala had been included in
the Rule 404(b) notice of intent and related defense
motion, which had been denied, and he therefore per-
mitted her to testify for the limited purpose of proving
Baker’s intent and knowledge under Rule 404(b). De-
fense counsel did not object. The district court then
twice gave the jury a limiting instruction on the proper
use of the evidence for the limited purpose of intent
and knowledge.
No. 10-1446 5
C. The Verdict and Sentencing
The jury found Baker guilty of possession with intent
to distribute crack cocaine. The district court applied a
career offender designation to Baker based on two prior
felony convictions for unlawful delivery of a controlled
substance. After examining Baker’s criminal history
and considering the § 3553 sentencing factors, the dis-
trict court sentenced Baker at the bottom of the Guide-
lines range to 360 months’ imprisonment.
II. DISCUSSION
A. Rule 404(b) Evidence
When the government introduced evidence of Baker’s
prior drug distributions to Keomala to prove intent and
knowledge, Baker objected on the grounds of lack of
foundation. On appeal, Baker raises an objection for the
first time under Federal Rule of Evidence 404(b). We
review the issue for plain error. Johnson v. United States,
520 U.S. 461, 466-67 (1997); see Fed. R. Crim. P. 52(b).
Under this standard of review, we determine whether
there was (1) an error, (2) that was plain, (3) that affected
the defendant’s substantial rights, and (4) that seriously
affected the fairness, integrity, or public reputation of
judicial proceedings. Johnson, 520 U.S. at 467. An error
occurs if a legal rule has been violated during the
district court proceedings. United States v. Gibson, 170
F.3d 673, 678 (7th Cir. 1999). Plain error affects the sub-
stantial rights of the defendant if the error was
prejudicial, meaning that the error “affected the outcome
6 No. 10-1446
of the district court proceedings.” Id. at 678 (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)). The defen-
dant bears the burden of persuasion with respect to
showing prejudice. Id. The decision to correct an error
lies within the sound discretion of this court, and we
do not exercise that discretion unless the error seriously
affects the fairness, integrity, or public reputation of
the judicial proceeding. Id.
We first determine whether the admission of
Keomala’s testimony about Baker’s prior bad acts consti-
tuted error under Rule 404(b). We conclude no such
error occurred.
Rule 401 defines relevant evidence as “evidence
having any tendency to make the existence of any fact
that is of consequence . . . more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401.
Rule 402 then states that all relevant evidence is gen-
erally admissible unless there is a reason for its exclu-
sion. Fed. R. Evid. 402.
The relevance of Keomala’s testimony is apparent.
Following his arrest, Baker denied that he knowingly
possessed the baggies of crack cocaine on the night he
was arrested and also denied that he possessed the
crack cocaine with intent to deliver it. Testimony re-
garding other instances in which Baker possessed crack
cocaine with the intent to deliver it is relevant to
Baker’s intent and knowledge. See United States v. Conner,
583 F.3d 1011, 1021-22 (7th Cir. 2009) (“In drug cases, we
have often found a defendant’s other drug transactions
relevant for purposes other than propensity, such as
No. 10-1446 7
knowledge, intent, and lack of mistake.”); United
States v. Curry, 79 F.3d 1489, 1495-96 (7th Cir. 1996)
(finding that in a case where the defendant denied pos-
sessing a baggie containing crack cocaine that was
dropped into a bush, evidence from witnesses who had
previously purchased crack cocaine from the defendant
was relevant and properly admitted); United States v.
Wilson, 31 F.3d 510, 515 (7th Cir. 1994) (finding that evi-
dence of prior drug transactions showed that the
defendant “was familiar with the cocaine business and
was not some innocent bystander ‘mistakenly caught up
in an overzealous law enforcement’ ”).
Rule 404(b) is a rule of exclusion. It states that evidence
of a defendant’s prior bad acts is not admissible if
entered simply to show the defendant’s propensity to
commit the crime with which he is charged. Fed. R. Evid.
404(b). The evidence may, however, be admissible to
establish “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
We employ a four-part test to determine whether evi-
dence of prior conduct is admissible under Rule 404(b),
taking into consideration the following factors: (1) the
evidence is directed toward establishing a matter in
issue other than the defendant’s propensity 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 suf-
ficient to support a jury finding that the defendant com-
mitted the similar act; and (4) the probative value of
the evidence is not substantially outweighed by the
danger of unfair prejudice. United States v. Shackleford,
738 F.2d 776, 779 (7th Cir. 1984).
8 No. 10-1446
Rule 403 is also an exclusionary rule; it provides for
the exclusion of relevant evidence that is unfairly preju-
dicial to the defendant. Fed. R. Evid. 403. “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.”
United States v. Zahursky, 580 F.3d 515, 525 (7th Cir.
2009) (citing United States v. Harris, 536 F.3d 798, 809 (7th
Cir. 2008)).
Baker argues that the trial court never considered the
Shackleford four-part test or performed a balancing test
for prejudice before allowing Keomala to testify. While
Baker faults the district court for failing to orally recite
its Rule 403 and Rule 404(b) findings, a district court is not
under an obligation to make every evidentiary ruling
orally; had Baker wanted an oral ruling, he should have
objected on Rule 403 and Rule 404(b) grounds. Given
this lack of action, it is easy to see why the district court
did not undertake the oral analysis of Keomala’s testi-
mony that Baker now desires.
Nevertheless, we do believe that this evidence satisfies
the four-part test, though Baker specifically takes issue
with the second and fourth factors. With regard
to the second factor, Baker contends that because
there was “no evidence” of the type of drug sales he was
engaged in at the time of his arrest, there is no way of
knowing whether his tender of drugs to Keomala was
similar enough to the activity for which he was arrested
and found guilty. This argument is wholly without merit.
Keomala testified that Baker supplied her with crack
cocaine. Here, Baker was charged with possession
No. 10-1446 9
with intent to distribute crack cocaine. These acts are
substantially similar.
As to the fourth factor, we conclude that the probative
value of this evidence was not substantially outweighed
by the danger of unfair prejudice. It is well-established
that when a defendant is charged with a specific
intent crime, prior bad acts may be admitted if the act
demonstrates how the defendant’s behavior was pur-
poseful. E.g., Curry, 79 F.3d at 1495. Because Baker
denies intent, this evidence is highly probative on that
element. Although evidence of prior drug dealings may
be prejudicial to Baker, it is not unfairly prejudicial.
Moreover, where evidence is of probative value, as it is
here, the danger of unfair prejudice was effectively han-
dled through the use of a proper limiting instruction,
which the district court twice provided to the jury. See
United States v. Macedo, 406 F.3d 778, 793 (7th Cir. 2005).
Moreover, the admission of this evidence did not
affect Baker’s substantial rights—the third condition
under the plain error standard. Even without the admis-
sion of the disputed testimony about Baker’s prior drug
dealings, the government offered a considerable amount
of other evidence to convict Baker, such as the arresting
officers’ testimony, Keomala’s direct evidence testi-
mony, and the expert testimony. See infra Part C. Baker
has therefore failed to satisfy the three conditions neces-
sary to demonstrate plain error, and we conclude that
the admission of Keomala’s testimony passes muster.
10 No. 10-1446
B. Reasonableness of the Sentence
Baker next argues that the sentencing court failed
to properly consider and apply all of the sentencing
factors and that his 360-month sentence is unreasonably
long. We disagree.
Whether the district court followed proper procedures
in imposing a sentence as prescribed in United States v.
Booker, 543 U.S. 220 (2005), is a question of law we
review de novo. United States v. Smith, 562 F.3d 866, 872
(7th Cir. 2009). The Supreme Court in Gall v. United States,
552 U.S. 38 (2007), described the procedure that a sen-
tencing court is required to follow. First, the sentencing
court must correctly calculate the applicable Guidelines
range. Gall, 552 U.S. at 39. Then, after giving both parties
an opportunity to argue for the sentence they deem
appropriate, the sentencing judge should consider
all the § 3553(a) factors.1 Id. at 49. After deciding on the
appropriate sentence, the sentencing court must ade-
quately explain the chosen sentence. Id. at 50. “The
district court need not address each § 3553(a) factor in
checklist fashion, explicitly articulating its conclusion
1
Section 3553(a) states that a sentencing court must impose a
minimally sufficient sentence that: (1) considers the nature
and circumstances of the present offense and the defendant’s
history; (2) reflects the seriousness of the offense; (3) pro-
motes respect for the law; (4) provides just punishment for
the offense; (5) affords adequate deterrence to criminal conduct;
(6) protects the public from further crimes by the defendant;
and (7) provides the defendant with needed treatment, training,
or care. 18 U.S.C. § 3553(a).
No. 10-1446 11
for each factor; rather, the court must simply give an
adequate statement of reasons, consistent with § 3553(a),
for believing the sentence it selects is appropriate.”
United States v. Panaigua-Verdugo, 537 F.3d 722, 728 (7th
Cir. 2008).
Once we are satisfied that the district court committed
no procedural error, we review the substantive reason-
ableness of the sentence under the abuse of discretion
standard. United States v. Coopman, 602 F.3d 814, 819
(7th Cir. 2010). A within-Guidelines sentence is entitled
to a presumption of reasonableness. Rita v. United States,
551 U.S. 338, 347 (2007).
Baker argues that the district court did not expressly
discuss the seriousness of his present offense, and to the
degree that the judge did so, the judge improperly con-
sidered the seriousness in light of Baker’s prior convic-
tions. Ultimately, this argument amounts to Baker’s
dissatisfaction with his increased sentence because of
his career offender enhancement, which was properly
applied and not challenged during the sentencing
hearing or on appeal. Section 3553(a) and the career
offender guidelines encourage judges to consider “the
nature and circumstances of the offense and the history
and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1)
(emphasis added). The district court’s fairly lengthy
discussion of Baker’s previous convictions—all similar
drug convictions—was not error. In sentencing Baker at
the bottom of the advisory Guideline range, the district
court sufficiently analyzed the § 3553(a) factors and
explained its reasoning behind the sentence, including
a consideration of the seriousness of Baker’s offense.
12 No. 10-1446
While the district court may not have expressly
addressed each § 3553(a) factor, it was not required to
do so.
Baker has not presented an argument that overcomes
the rebuttable presumption of reasonableness of his
within-Guidelines sentence. While Baker expresses that
“it is hard to conceive of a more outrageous and direct
assault on the most basic concepts of justice” regarding
his thirty-year prison sentence, we believe that this sen-
tence is reasonable given that the defendant has made a
lifelong career out of drug dealing. The district court did
not abuse its discretion in sentencing Baker to a within-
Guidelines sentence.
C. Sufficiency of Evidence
Baker finally argues that the government produced no
evidence to prove the possession charge. We give a jury
verdict great deference and will uphold the verdict if,
viewing the evidence in the light most favorable to the
government, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt. United States v. Hicks, 368 F.3d 801, 804-05 (7th
Cir. 2004). We will not re-weigh the evidence or second
guess the jury’s credibility determinations. United States
v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006).
Baker argues that because there was no testimony from
any person who actually saw him with the baggies of
drugs, no rational trier of fact could have found beyond a
reasonable doubt that the baggies were ever in Baker’s
No. 10-1446 13
possession. He also points out that his fingerprints were
never found on the baggies.
Viewing the evidence in the light most favorable to the
government, a reasonable jury could have found that
Baker was in possession of the baggies of crack cocaine
and dropped those baggies while fleeing from the police.
The arresting officers testified that although he was
compliant at first, Baker immediately fled from the
officers in response to Officer Aikman’s movement to pat
him down to search for weapons or drugs. Officer Aikman
testified that Baker was within his sight during the
entire chase and, though he could not see Baker’s hands
the entire time, Baker appeared as though he was at-
tempting to retrieve something from his front pants
pocket as they were approaching the fence. When Officer
Aikman immediately returned to the area where he
had tackled Baker along the collapsed fence, he quickly
spotted the two baggies on the ground. Baker ignores
Keomala’s testimony almost entirely. Even setting aside
the disputed prior bad acts evidence, Keomala testified
that Baker told her he was on the “Hill” the night of his
arrest “posted up,” and explained that she understood
this to mean that he was waiting to exchange drugs for
money. Additionally, Office Jack Turner, an expert wit-
ness in the distribution of crack cocaine, testified that
25.2 grams of crack cocaine is “a distribution sized
amount.” See United States v. Maholias, 985 F.2d 869, 879
(7th Cir. 1993) (“intent to distribute can be inferred from
the possession of a quantity of drugs larger than needed
for personal use”). Between the arresting officers’ testi-
mony, Keomala’s testimony regarding what Baker told
14 No. 10-1446
her both before and after his arrest, and the quantity of
drugs found, the government presented enough direct
and circumstantial evidence that a reasonable jury
could have found Baker guilty.
III. CONCLUSION
For the reasons set forth above, we A FFIRM Baker’s
conviction and sentence.
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