                        NONPRECEDENTIAL DISPOSITION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

                             Argued November 27, 2007
                              Decided January 4, 2008

                                      Before

                           Hon. DANIEL A. MANION, Circuit Judge

                           Hon. TERENCE T. EVANS, Circuit Judge

                           Hon. DIANE S. SYKES, Circuit Judge


No. 06-4158

UNITED STATES OF AMERICA,                    Appeal from the United States
              Plaintiff-Appellee,            District Court for the
                                             Central District of Illinois.
                   v.
                                             No. 05 CR 20047
GREGORY L. MARSHALL,
           Defendant-Appellant.              Michael P. McCuskey, Chief Judge.


                                       ORDER

       A jury convicted Gregory Marshall of possessing with the intent to distribute
various amounts of crack, heroin, and powder cocaine, which were found in his
home during the execution of a search warrant. The district court (Judge Michael
McCuskey) denied Marshall’s motion for a judgment of acquittal and a new trial
and sentenced him to a prison term of 260 months. Marshall now challenges the
court’s failure to conduct a Franks hearing and its decision to admit certain
evidence at trial. He also claims that his sentence is unreasonable. The evidentiary
issue--which consumed the bulk of the discussion at oral argument--concerns the
admission of evidence regarding a controlled buy between Marshall and a
confidential informant 3 days before the charged offense.
No. 06-4158                                                                        2



       The facts accepted at trial were that, in September 2005, Kankakee (Illinois)
police officer Kenneth Mallindine received information from a confidential
informant that Marshall was selling drugs that the informant could purchase.
Mallindine subsequently instructed the informant to purchase crack from Marshall.
The day of the buy, Mallindine and the informant met at the Kankakee police
station, which was within walking distance of Marshall’s house. At the station,
Mallindine searched the informant for drugs or money and found none. He then
gave the informant $50 cash to purchase crack from Marshall.

       The informant left the police station on foot, with Mallindine and another
officer following approximately 60 yards behind in a surveillance vehicle.
Mallindine kept the informant in his sights at all times and used binoculars to
observe the events, but he did not videotape or make an audio recording of the buy.
The informant walked to the corner and stopped across the street from Marshall’s
house. The informant then made a cellular telephone call. Within a few minutes,
Marshall walked out of his house and met the informant. A few minutes after that,
the two separated. The informant walked back to the police station where he met
Mallindine. The informant handed him a plastic bag containing crack. Mallindine
again searched the informant for drugs or money and found none.

       Based on Mallindine’s affidavit setting forth these events, the Kankakee
officers obtained a warrant to search Marshall’s house. The warrant was executed
3 days later. During the search, Mallindine found a Desenex can in the medicine
cabinet of the home’s only bathroom. He discovered that the can contained a false
compartment accessed by unscrewing the bottom of the can. That compartment
contained a plastic bag with 30.7 grams of powder cocaine, 19 separate plastic bags
containing a total of more than 20 grams of crack, and another plastic bag
containing 1.6 grams of heroin. More of the same kind of bags were found in the
kitchen. In the only bedroom’s closet, officers found $710 in a bag and another $700
in the pocket of a shirt. In the same bedroom, officers also found Marshall’s driver’s
license and a gas bill addressed to him at that address.

       A grand jury subsequently indicted Marshall on three counts: (1) knowingly
possessing more than five grams of crack with the intent to distribute it, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); (2) knowingly possessing heroin
with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); and (3) knowingly possessing cocaine with the intent to distribute it, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Marshall pled not guilty, and a
jury trial followed.
No. 06-4158                                                                       3



       Before jury selection, Marshall asked to speak to the court about a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Marshall stated that, at
some earlier time, his lawyer had informed the court that he would be seeking such
a hearing. After Judge McCuskey ascertained Marshall’s understanding of a
Franks hearing, he discussed with him the difficult burden that a defendant faces
in those hearings. Marshall indicated that he was aware of the burden but that his
attorney had previously told the court that he would be filing a Franks motion.
Marshall’s attorney then explained that he did indeed investigate the issue but
concluded that the evidence was insufficient to support a motion. Upon Marshall’s
further insistence that his attorney had promised to file a Franks motion, Judge
McCuskey asked Marshall if he wanted to represent himself. Marshall declined but
continued to insist that the officers were lying because he did not participate in the
controlled buy with the informant in the days before the search was executed.
Judge McCuskey assured Marshall that Mallindine would be cross-examined
vigorously concerning his observations.

       Before testimony was received at his trial, Marshall’s counsel made a “record
objection” to the evidence concerning the controlled buy. Judge McCuskey asked
the prosecutor if the evidence was being offered to prove propensity. The prosecutor
stated that it was only being offered to explain the actions of the police officers in
securing the search warrant and as direct evidence of Marshall’s intent to distribute
the drugs. Judge McCuskey overruled the objection but agreed to give Marshall’s
proposed limiting instruction to the jury at the appropriate time.

       The parties revisited this issue after the first day of testimony. Judge
McCuskey informed the lawyers that he had admitted the evidence both to explain
later acts of the police officers and under Federal Rule of Evidence 404(b) to prove
Marshall’s knowledge and intent. Marshall’s attorney argued that the evidence was
not relevant and was inadmissible direct evidence of propensity. Judge McCuskey
disagreed, stating that the evidence was not being offered for “propensity purposes”
but rather as “proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” He also determined that the probative
value of the evidence outweighed its prejudicial effect. Judge McCuskey ultimately
ruled that the evidence would “come in for knowledge.” A limiting instruction
reflecting this decision was given to the jury prior to closing arguments.

      After the jury returned its verdict and Marshall’s subsequent motion for a
judgment of acquittal and a new trial was denied, the parties proceeded to
sentencing. The presentence report (PSR) set Marshall’s base offense level at 28
and his criminal history category at V. However, Marshall’s prior drug convictions
made him a career offender under the sentencing guidelines. As a result, his
No. 06-4158                                                                         4



offense level increased to 37 and his criminal history category increased to VI. This
established a guidelines range of 360 months to life imprisonment.

       Marshall informed the court that he had no objections to the PSR. The
government recommended that he receive a sentence of 360 months. Marshall
argued for an unspecified sentence of less than 360 months. Judge McCuskey
ultimately sentenced Marshall to 260 months imprisonment. He explained that the
sentence was motivated, in part, by a desire to allow Marshall--who was 52 years
old at the time--to see his young children some day outside of a prison setting.

       There are four issues on appeal: (1) whether Judge McCuskey erred in
declining to conduct a Franks hearing; (2) whether Judge McCuskey erred in
admitting evidence of the controlled buy under Rule 404(b); (3) whether
Mallindine’s testimony about the controlled buy was inadmissible hearsay and
violated Marshall’s confrontation rights; and (4) whether the sentence of 260
months imprisonment was reasonable. We address the Franks issue first.

       A Franks hearing is required “where the defendant makes a substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant
affidavit, and [] the allegedly false statement is necessary to the finding of probable
cause[.]” Franks, 438 U.S. at 155-56. A defendant faces a difficult burden in
establishing these elements. His allegations must be more than conclusory,
supported by more than a mere desire to cross-examine, and accompanied by a
specific offer of proof. Id. at 171.

       Marshall argues that he met his burden of making a “substantial preliminary
showing.” We disagree. The record reveals that Marshall did not even request a
Franks hearing. Rather, he merely sought to voice his displeasure with his
attorney’s decision not to seek one. Marshall stated that his attorney told him that
they would be filing a Franks motion, and he wanted Judge McCuskey to ask his
attorney why he failed to do so. Marshall’s lawyer then explained that, after
investigating the matter, he determined that filing such a motion would be
“frivolous.” This answer did not satisfy Marshall, but he declined to represent
himself and never actually asked for a Franks hearing.

       Even if his comments could be construed as a request for a Franks hearing,
Marshall fell well short of making the requisite showing. He neither advanced
specific allegations nor produced affidavits or other reliable statements of proof. All
Marshall offered was his unsworn statement that he was not the individual who
sold drugs to the informant. As we discussed, a conclusory statement alleging that
No. 06-4158                                                                         5



an affidavit is false, without more, is insufficient to trigger the need for a Franks
hearing. Thus, Judge McCuskey did not err in failing to conduct one.

      The second issue is whether Judge McCuskey erred in admitting evidence of
the controlled buy under Rule 404(b). We review a district court’s decision
regarding the admissibility of such evidence for an abuse of discretion. United
States v. Williams, 238 F.3d 871, 874 (7th Cir. 2001).

       Rule 404(b) provides that otherwise inadmissible evidence of prior bad acts
may nevertheless be admissible to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b).
We apply a four-part test to determine the admissibility of evidence under Rule
404(b) and will find no error if:

              (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 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. Sebolt, 460 F.3d 910, 916 (7th Cir. 2006). Marshall contends that
Judge McCuskey abused his discretion when he found that the first, third, and
fourth prongs of the test were satisfied.

       Marshall’s major complaint is that the evidence of the controlled buy did not
establish a matter in issue other than his propensity to commit a crime. We
disagree. Judge McCuskey spent a lot of time discussing this question and clearly
and correctly found that the evidence was being offered to establish an element of
the charged offenses--knowledge. Marshall was charged with knowingly possessing
various drugs with intent to distribute them. Thus, the government bore the
burden of proving beyond a reasonable doubt, among other things, that Marshall
“knowingly” had the power and intention to exercise control over the drugs and that
he “knew” that they were indeed drugs. The evidence of the prior drug sale, which
occurred just 3 days before the charged offense, tended to prove that Marshall knew
about and intended to control the drugs later found in his house.
No. 06-4158                                                                       6



       In addition, Marshall himself raised the issue of knowledge. A large part of
his defense at trial was that he did not knowingly possess the drugs. He presented
evidence that other people had access to his house and that someone else might
have placed the Desenex can, which appeared normal from the outside, in his
bathroom without his knowledge. Marshall requested and received a “mere
presence” instruction, which told the jury that it could not convict him solely
because drugs were found in his house. The controlled buy was therefore also
relevant to disproving Marshall’s theory of the case.

       Marshall relies on our opinion in United States v. Jones, 389 F.3d 753 (7th
Cir. 2004), to support his argument that the buy was only relevant to prove
propensity. In Jones, a defendant unsuccessfully sought to exclude evidence of two
prior drug convictions at trial. On appeal, we found the admission of this evidence
problematic because it seemed to only show propensity. We explained that
determining the purpose of proffered evidence requires “both specific evidence about
the prior conviction and a well articulated theory of the legitimate purpose that it
allegedly serves for the present case.” Id. at 757. There, however, the government
did not introduce any facts associated with the defendant’s prior convictions, and its
counsel repeatedly told the jury that the defendant’s prior convictions showed that
he was a drug dealer.

       None of the concerns discussed in Jones are present here. The government
offered specific evidence about the controlled buy, which occurred just days before
the charged offense. It also advanced a well-articulated theory of the legitimate
purpose of the evidence--namely, to prove that Marshall had the necessary mental
state (knowledge) for the jury to convict. Finally, there is no allegation that the
government misled the jury. On the contrary, the prosecutor explained during his
closing remarks that the evidence of the controlled buy was presented to “shed some
light on whether or not [Marshall] knowingly possessed that Desenex can that was
found in his bathroom in his home[.]” Because evidence of the controlled buy
tended to prove Marshall’s knowledge, Judge McCuskey did not err in determining
that it was not offered merely to prove propensity.

       Marshall also argues that the evidence of the controlled buy was insufficient
to support a jury finding that he distributed the drugs to the informant. We
disagree. Mallindine testified that he searched the informant, watched the
informant meet Marshall (whom Mallindine later identified in court as the man he
saw), and continually observed the informant until he returned and turned over the
drugs he did not have with him when he met Marshall. This testimony allowed a
jury to reasonably conclude that Marshall dealt the drugs to the informant. See
United States v. Long, 86 F.3d 81, 85 (7th Cir. 1996) (collecting cases and finding
No. 06-4158                                                                          7



that eyewitness testimony was sufficient to support a jury finding that a defendant
committed a similar act to the charged offense). Marshall insists that Mallindine’s
account lacks credibility because he was too far away from the transaction and did
not take video or audio recordings. This argument, of course, goes to the weight
that should be given to testimony, not its admissibility.

       Marshall finally claims that the probative value of the evidence did not
outweigh the danger of unfair prejudice. We disagree. As discussed, knowledge
was not only an element of the crime but also a key to Marshall’s defense. Evidence
that Marshall was observed leaving his house to make a sale of the same type of
drugs found in his home 3 days later was clearly probative of his knowledge.
Because it was a similar act to the charged offense, this evidence was also clearly
prejudicial. But Judge McCuskey alleviated any unfair prejudice by giving a
limiting instruction, the content of which Marshall does not challenge. See United
States v. Denberg, 212 F.3d 987, 994 (7th Cir. 2000) (recognizing that “limiting
instructions are effective in reducing or eliminating any possible unfair prejudice
from the introduction of Rule 404(b) evidence”). Thus, Judge McCuskey did not
abuse his discretion in admitting evidence of the controlled buy under Rule 404(b).

       The third issue is whether Mallindine’s testimony about the controlled buy
was inadmissible hearsay and violated Marshall’s confrontation rights. Marshall’s
counsel failed to make this objection at trial, so our review is only for plain error.
United States v. Bitterman, 320 F.3d 723, 727 (7th Cir. 2003). Under the plain
error doctrine, reversal is appropriate only where the district court's error is “clear,
prejudicial, and affects substantial rights.” United States v. Carrillo, 269 F.3d 761,
768 (7th Cir. 2001) (internal citation omitted).

       Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). A “statement” in the hearsay context is “(1) an oral
or written assertion or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion.” Fed. R. Evid. 801(a). The admission of “testimonial”
hearsay against a defendant may violate his Sixth Amendment right to
confrontation if he does not have the opportunity to cross-examine the out-of-court
declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004).

      Marshall argues that Mallindine’s testimony concerning the controlled buy is
inadmissible hearsay. We disagree. Mallindine merely recounted what he did in
preparing the informant for the meeting with Marshall, what he observed the
informant and Marshall do during their meeting, and what he received from the
informant following the meeting. This testimony is not hearsay because it only
No. 06-4158                                                                       8



describes nonassertive conduct. Putting it another way, this is straight-forward
eyewitness testimony. As the government concedes, Mallindine’s testimony clearly
supplied an inference that Marshall provided the informant with drugs during their
meeting. But an inference drawn from observable facts is not the same as an out-of-
court statement made by a nontestifying witness. Mallindine had first-hand
knowledge about the facts to which he testified. Marshall’s ability to cross-examine
Mallindine provided the necessary opportunity for confrontation.

       Marshall focuses on United States v. Silva, 380 F.3d 1018 (7th Cir. 2004), in
support of his hearsay argument. In Silva, we reversed a defendant’s drug
conviction because the government relied on inadmissible hearsay at trial. There, a
DEA agent was allowed to testify to conversations between a nontestifying
confidential informant and other people, including the defendant, and to the
informant’s observations. We rejected the government’s contention that this
testimony was not offered for the truth of the matter asserted and warned of the
“potential for abuse when police testify to the out-of-court statements of a
confidential informant.” Id. at 1020. Here, however, Mallindine only testified about
what he did and what he observed. He did not recount the conversation between
the informant and Marshall or the informant’s observations. Thus, the concerns
expressed in Silva are absent from our case.

        Marshall also contends that Mallindine’s testimony that the informant
identified a photograph of Marshall and pointed out his residence was inadmissible
hearsay. At the time Mallindine made these statements, he was discussing the
initial process he undertook with the informant. When asked if he drove past the
area where the informant said he could buy drugs, Mallindine responded:

              Well, the first thing I did is I had a photograph printed up
              of the target that we were looking to buy from. I took that
              photograph with me when I met with the informant, we
              did actually do a drive-by of the residence which he
              pointed out and I showed him the picture of the person we
              were discussing, and that’s the person he identified.

        The government concedes that this testimony may contain hearsay but
argues that it did not affect Marshall’s substantial rights under plain error review.
We agree. There was no dispute that Marshall was the target of the investigation
or that he lived at the residence identified by the informant. Indeed, Mallindine
testified that he had seen Marshall before, that Marshall was the target of his
investigation, and that Marshall was the man he saw meet with the informant just
before the controlled buy. Marshall’s driver’s license and the utility bill found
No. 06-4158                                                                                 9



during the search established that he lived at that residence. Putting it briefly,
Marshall’s identity and his residence were simply nonissues at trial.1 Because
Mallindine’s testimony was either not hearsay or did not affect Marshall’s
substantial rights, Judge McCuskey did not plainly err in allowing it.

       The final issue is whether Judge McCuskey erred in sentencing Marshall to
260 months, 100 months below the bottom of the advisory guidelines range.
Pursuant to United States v. Booker, 543 U.S. 220 (2005), we review the sentence
for reasonableness. United States v. Acosta, 474 F.3d 999, 1001 (7th Cir. 2007). We
will affirm if, after ascertaining the appropriate advisory guidelines range, the
district judge gave meaningful consideration to the sentencing factors specified in
18 U.S.C. § 3553(a) and arrived at an objectively reasonable sentence. United
States v. Wachowiak, 496 F.3d 744, 748 (7th Cir. 2007).

       Marshall does not allege that Judge McCuskey failed to meet the
requirements we just mentioned. Rather, he claims that his sentence is per se
unreasonable because (1) the guidelines punish offenses involving crack more
severely than those involving powder cocaine and (2) his designation as a career
offender, combined with the severe crack penalties, unreasonably skewed his
guidelines range. In support of his first argument, Marshall notes that, for over a
decade, the Sentencing Commission has urged Congress to change the 100:1 crack-
to-powder cocaine ratio because it produces sentencing anomalies.2 In support of
his second (much more abbreviated) argument, he cites a letter written by public
defenders to the Sentencing Commission and a public opinion survey that
characterize the career offender guideline as unfair. Essentially, Marshall asks us
to categorically reject the two guidelines.




       1
         Marshall also complains that Mallindine’s statement during cross-examination that the
informant and Marshall met “On the sidewalk is what I was told” was inadmissible hearsay.
Notwithstanding the fact that Mallindine subsequently clarified that he himself observed the two
men on the sidewalk, whether the buy occurred on the sidewalk or in the yard did not affect
Marshall’s substantial rights.
       2
         The most recent Sentencing Commission report on this topic was released in May 2007
and can be accessed via its Web site. Along with issuing the report, the Commission adopted a
change in the guidelines, reducing the base offense level associated with each quantity of crack
by two levels. See 72 Fed. Reg. 28571-28572 (2007). This change became effective on
November 1, 2007. The Commission just determined that the amendment will be retroactive.
As we later discuss, however, the change will probably not help Mr. Marshall.
No. 06-4158                                                                        10



       We have heard this argument before and declined to embrace it. A district
judge cannot be lenient at sentencing just because he disagrees with a legislative
judgment, including a legislative judgment made by the Sentencing Commission as
Congress’ delegate. United States v. Gonzalez, 462 F.3d 754, 755 (7th Cir. 2006).
As a result, we have consistently held that courts are not authorized to find that the
guidelines themselves, or the statutes on which they are based, are unreasonable.
United States v. Wallace, 458 F.3d 606, 611 (7th Cir. 2006); see, e.g., United States
v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006); United States v. Miller, 450 F.3d at
275 (7th Cir. 2006).

      We must reexamine our case law, however, in light of the Supreme Court’s
recent decision in Kimbrough v. United States, 552 U.S. ___ (2007). In Kimbrough,
the Court concluded that a sentence outside the guidelines range is not per se
unreasonable when it is based on a disagreement with the sentencing disparity for
crack and powder offenses. The Court stated that “[a] district judge must include
the Guidelines range in the array of factors warranting consideration, but the judge
may determine that, in the particular case, a within-Guidelines sentence is ‘greater
than necessary’ to serve the objectives of sentencing.” Id. at ___ (slip op. at 2)
(quoting 18 U.S.C. § 3553(a)). Because Booker dictates that the guidelines are
advisory, the Court held that the court of appeals “erred in holding the
crack/powder disparity effectively mandatory.”

       Kimbrough does not indicate that any error occurred in our case. The district
judge in Kimbrough imposed a sentence outside the guidelines range based on a
disagreement with the sentencing disparity for crack and powder offenses, which
the Court said was permissible. Here, Judge McCuskey imposed a sentence outside
the guidelines range based on the factors specifically raised by Marshall--age and
family concerns. On appeal, Marshall essentially argues that Judge McCuskey
erred by not, sua sponte, rejecting the 100:1 ratio and the career offender
guidelines. This is not what Kimbrough requires. Its rule is phrased in the
permissive “may,” not the mandatory “must.” And, because Kimbrough reaffirmed
that “a court [must] give respectful consideration to the Guidelines,” id. at ___ (slip
op. at 12), a categorical rejection would still be impermissible. After carefully
considering both the guidelines and Marshall’s particular situation, Judge
McCuskey sentenced him to 100 months below the bottom of the advisory guidelines
range. We find no basis to conclude that the sentence was unreasonably high.

      Finally, we note that reducing the crack/powder disparity would not help
Marshall because his guidelines range was driven by statute. Because Marshall
possessed more than five grams of crack and had prior drug convictions, his
statutory offense maximum was life imprisonment. See 21 U.S.C. § 841(b)(1)(B).
No. 06-4158                                                                       11



This set his guidelines offense level at 37, which, combined with his criminal history
category, established a guidelines range of 360 months to life. See U.S.S.G. § 4B1.1.
Thus, although the Sentencing Commission’s recent guidelines change applies
retroactively–and Marshall may be eligible to petition for resentencing--it would not
affect his range, which was purely determined by statute. Furthermore, based
solely on the amount of powder cocaine Marshall possessed, because of his prior
drug convictions, his statutory offense maximum would be 30 years imprisonment.
See 21 U.S.C. § 841(b)(1)(C). This would set his guidelines offense level at 34,
which, combined with his criminal history category, would establish a guidelines
range of 262 to 327 months. See U.S.S.G. § 4B1.1. Judge McCuskey’s sentence of
260 months even falls below this range.

      For these reasons, the judgment of the district court is AFFIRMED.
