                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-1494

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

JERRY S TRAHAN,
                                          Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Illinois.
         No. 05 CR 30027—David R. Herndon, Chief Judge.



       A RGUED A PRIL 15, 2008—D ECIDED M AY 15, 2009




 Before C UDAHY, K ANNE, and S YKES, Circuit Judges.
  S YKES, Circuit Judge. Jerry Strahan was convicted by a
jury of conspiracy to distribute cocaine base and distribu-
tion of cocaine base and was sentenced to life in prison,
the mandatory sentence based on his two prior felony
drug convictions. See 21 U.S.C. § 841(b). Strahan appeals
his convictions and sentence, arguing that the dis-
trict court should have instructed the jury on his public-
authority defense. He also challenges the sufficiency of
the evidence against him and the constitutionality of the
2                                               No. 07-1494

mandatory life term under the Sixth and Eighth Amend-
ments.
  We affirm. The evidence was insufficient to support a
public-authority defense and easily sufficient to support
the jury’s verdict of guilty on both counts. Strahan’s
constitutional challenges to his sentence run contrary to
Supreme Court caselaw. A mandatory-minimum sen-
tence based on judge-found facts regarding prior felony
drug convictions does not violate the Sixth Amendment,
and a life term based on recidivism is not cruel and
unusual punishment in violation of the Eighth Amend-
ment.


                      I. Background
  Jerry Strahan delivered drugs for Johnny McCray Jr.,
who ran a drug-distribution operation out of a house on
College Street in East St. Louis, Illinois. McCray Jr. sold
mainly heroin and crack cocaine, and employed at least
three others to help serve his customers: his father, Johnny
McCray Sr.; Mitchell Brown; and Strahan. All three were
drug users, and McCray Jr. paid them for their work in
both drugs and money.
  Strahan had been involved with this group as far back
as 1996, when he was caught trying to buy drugs from a
drug house run by the McCrays and Eugene Falls, a
coconspirator. He was making drug deliveries for the
group in 1999 when he was arrested again. This time
he cooperated with the government. It was this prior
association that led Deputy U.S. Marshal Tom Woods to
No. 07-1494                                             3

ask Strahan in 2003 if he knew the whereabouts of McCray
Sr. or Cortez McCray (Johnny McCray Sr.’s other son). Both
were wanted on arrest warrants. Strahan later contacted
Deputy Woods with information that led to the arrest of
both McCrays, and he was put on Woods’s payroll as a
confidential informant.
  The activity at the College Street residence soon drew
the attention of other law-enforcement officials. Officer
Brian Gimpel of the O’Fallon Police Department, who
was deputized to the FBI, was approached by Richard
Baker, a confidential informant, with information about
the McCray drug operation on College Street. Officer
Gimpel specialized in controlled purchases of narcotics
and arranged for Baker to buy crack cocaine from Falls
at the College Street house. Gimpel also used Joe
Mitchell, another informant, to make multiple con-
trolled drug buys at the College Street house. Each trans-
action was recorded using a device worn by Baker or
Mitchell. On the strength of these recordings, Officer
Gimpel obtained a search warrant for the McCray drug
house.
  Based on the evidence collected in the search, a grand
jury returned an indictment charging both McCrays,
Brown, Falls, and Strahan with conspiracy to distribute
crack cocaine and heroin in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Strahan was also
charged with violating 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) by distributing cocaine base on September 29,
2004. Because Strahan had two prior state convictions for
delivery of controlled substances, the government filed
4                                               No. 07-1494

notice pursuant to 21 U.S.C. § 851 that it would seek
enhanced punishment under 21 U.S.C. § 841(b). All of the
coconspirators, save Strahan, pleaded guilty to the
charges, and the coconspirators agreed to testify against
Strahan.
  In advance of trial, Strahan gave notice pursuant to
Rule 12.3 of the Federal Rules of Criminal Procedure that he
intended to offer a “public authority” defense based on
his interactions with Deputy Woods. In response the
government denied that Strahan was acting pursuant to
public authority when he committed the charged acts
and notified Strahan and the district court that it would
call Deputy Woods to testify in opposition to Strahan’s
public-authority defense.
   At trial Deputy Woods testified that he “does not do
controlled [drug] buys” and that his contact with Strahan
was limited to obtaining information about the where-
abouts of persons for whom there were active arrest
warrants. Strahan took the stand and testified in his
own defense; he admitted being a drug user but denied
any involvement in the McCray drug conspiracy operated
out of the College Street house. He said he knew
Deputy Woods but denied giving him information
about drug dealing at the College Street house. In
response to a question about whether he thought he
had authority to engage in the drug-trafficking activity
alleged against him because Woods told him so, Strahan
responded, “No, that’s not correct, I wasn’t doing what
is alleged in this case.”
  At the close of evidence, Strahan asked the district court
to issue a public-authority instruction to the jury, arguing
No. 07-1494                                               5

that he believed he was authorized by Deputy Woods to
sell narcotics. The court refused to do so. The judge
noted Strahan’s own testimony flatly denying any in-
volvement in drug dealing and the complete lack of
evidence that Woods ever led Strahan to believe he
could distribute drugs as part of his role gathering infor-
mation on the whereabouts of fugitives. The jury
found Strahan guilty of both counts.
  Because of Strahan’s previous drug convictions, he
was classified as a career offender under the sentencing
guidelines, pushing his offense level to 37 and his
criminal history category to VI. That yielded an advisory
guidelines range of 360 months to life in prison for both
counts. But because of Strahan’s two previous convic-
tions for state drug felonies, the statutory minimum for
the conspiracy count was life in prison. 21 U.S.C. § 841(b).
The court imposed a sentence of life on the conspiracy
count and a concurrent 360 months on the crack-distribu-
tion count. Strahan appealed, challenging both his con-
victions and sentence.


                      II. Discussion
A. Public-Authority Defense
   At the close of the evidence, Strahan requested a jury
instruction on the public-authority defense, arguing that
if the jurors disbelieved his testimony that he did not
take part in the conspiracy, he was entitled to defend on
the basis that his actions were the result of a reasonable
belief that he was authorized by Deputy Woods to sell
6                                                  No. 07-1494

narcotics in connection with his work as a confidential
informant. The district court declined to give the
requested instruction, finding that the public-authority
defense was not supported by the evidence.
  Our review of a district court’s refusal to give a theory-
of-defense jury instruction is de novo. United States v. Van
Allen, 524 F.3d 814, 832 (7th Cir. 2008). A criminal defen-
dant is entitled to such an instruction only if there is
evidentiary support for it. Id.; see also United States v.
Millet, 510 F.3d 668, 675 (7th Cir. 2007).
  The public-authority defense is closely related to
another affirmative defense, entrapment by estoppel.
United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006)
(noting that “[t]he elements that comprise the two
defenses are quite similar”); see also United States v. Neville,
82 F.3d 750, 761 (7th Cir. 1996) (noting that “ ‘public author-
ity’ [is] sometimes called ‘entrapment by estoppel’ ”). We
have recently clarified the distinction between the two
defenses: “[I]n the case of the public authority defense,
the defendant engages in conduct at the request of a
government official that the defendant knows to be
otherwise illegal, while in the case of entrapment by
estoppel, because of the statements of an official, the
defendant believes that his conduct constitutes no of-
fense.” United States v. Jumah, 493 F.3d 868, 874 n.4 (7th
Cir. 2007) (citing 53 A M . JUR. P ROOF OF F ACTS 3 D 249 Proof
of Defense of Entrapment by Estoppel § 20 (1999)). In other
words, the public-authority defense requires reasonable
reliance by a defendant on a public official’s directive to
engage in behavior that the defendant knows to be
No. 07-1494                                                  7

illegal. Id.; see also United States v. Cao, 471 F.3d 1, 4 (1st
Cir. 2006). In contrast, a defendant who believed his
conduct legal because of an official’s statement of the
law may assert an entrapment-by-estoppel defense. Jumah,
493 F.3d at 874 n.4; see also United States v. Apperson, 441
F.3d 1162, 1204 (10th Cir. 2006). Strahan’s situation is
the former; he maintains that he was entitled to argue
that he engaged in illegal drug trafficking at the behest
of Deputy Woods, not that he relied on Woods’s state-
ment that such conduct was actually lawful.
  Here, the district court’s refusal to instruct the jury
on the public-authority defense was manifestly correct.
No witness—not even Strahan—testified that Deputy
Woods ever instructed or authorized Strahan to
distribute crack cocaine. It is true that Woods used
Strahan as a confidential informant, but their interaction
was limited to Strahan helping Woods find fugitives.
Indeed, Deputy Woods testified that he “didn’t do con-
trolled buys.” Strahan’s own testimony eliminated any
possibility of a public-authority defense. When asked
by the prosecutor if Deputy Woods had ever authorized
him to sell drugs as part of his interaction with Woods
as an informant, Strahan responded, “He never said I
could sell drugs, no.” He later added that he had never
asked Woods for permission to do so either. Strahan was
plainly not entitled to a public-authority instruction;
the defense was utterly unsupported by the evidence.


B. Sufficiency of the Evidence
  Strahan also argues that the evidence was insufficient to
convict him on either count. We will overturn the verdict
8                                               No. 07-1494

on this basis only if, viewing the evidence in the light
most favorable to the government, there is “ ‘no evidence,
no matter how the evidence is weighed, from which the
jury could have found guilt beyond a reasonable doubt.’ ”
United States v. Burke, 425 F.3d 400, 415 (7th Cir. 2005)
(quoting United States v. Albarran, 233 F.3d 972, 975 (7th
Cir. 2000)).
  The record is overflowing with evidence of Strahan’s
guilt. Johnny McCray Jr. testified that Strahan helped him
sell drugs from the College Street house in late 2003 and
through most of 2004. According to McCray Jr., Strahan
was responsible for answering a prepaid cell phone used
to take drug orders and would also deliver drugs when
necessary. He also testified about a letter sent to him
from jail by his father, Johnny McCray Sr., in December
2004. In the letter McCray Sr. asked if Strahan had been
using some of the drugs he was supposed to sell. (The
answer was “yes.”)
   Johnny McCray Sr. testified that Strahan lived with the
McCrays and sold drugs for the McCray Jr. crack cocaine
and heroin distribution group, initially in Granite City,
Illinois, and later from the College Street house in East
St. Louis. Coconspirators Falls and Brown also testified
that Strahan lived at McCray Jr.’s College Street house
and participated in the drug-distribution operation con-
ducted there by (among other things) taking phone
orders and delivering drugs. This evidence is more than
sufficient for the jury to convict Strahan on the conspiracy
count. See United States v. Sachsenmaier, 491 F.3d 680, 684
(7th Cir. 2007) (finding a conspiracy where the defendant
“took drug orders, arranged sales, collected drug money,
No. 07-1494                                                9

and acted as an intermediary” between the seller and
his customers).
  Similarly, the testimony at trial gave the jury sufficient
evidence to find Strahan guilty of distributing crack
cocaine to informant Joe Mitchell on September 29, 2004.
The transaction was recorded, and although Strahan
disputed the accuracy of the audio recording, he
admitted being present when Mitchell received the
drugs at the College Street address on that day. McCray
Jr. testified that one of the voices on the recording was
Strahan’s and that Strahan gave Mitchell the drugs,
collected payment, and brought the money to him for
change. Mitchell testified and confirmed the details of the
September 29 controlled buy and Strahan’s role in the
transaction. Notwithstanding the poor quality of the
audio recording, McCray and Mitchell were able to
identify Strahan’s voice, and both testified in detail to
Strahan’s participation. This evidence amply supports
the guilty verdict on the crack-distribution count.


C. Sentencing Claims
  Strahan raises two constitutional challenges to his
sentence. First, he argues that the mandatory-minimum
sentence of life imprisonment runs afoul of the Sixth
Amendment by allowing facts not proven to a jury
beyond a reasonable doubt—in this case, his two prior
convictions for drug felonies—to affect the severity of
his punishment. See 21 U.S.C. § 841(b)(1)(A). But this
argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and Harris v. United States, 536
10                                              No. 07-1494

U.S. 545 (2002). Strahan acknowledges that we have
repeatedly rejected the argument that United States v.
Booker, 543 U.S. 220 (2005), has called into question either
Almendarez-Torres or Harris. See, e.g., Sachsenmaier, 491
F.3d at 685 (noting “this court’s many decisions holding
that Almendarez-Torres is still good law after Booker”);
United States v. Jones, 418 F.3d 726, 732 (7th Cir. 2005)
(finding that “[t]he distinction drawn by the Court in
Harris appears to have survived” Booker). He seeks only
to preserve these issues for review in the Supreme Court,
and we confirm that he has done so. Sachsenmaier, 491
F.3d at 685.
  Next, Strahan contends that the mandatory-minimum
sentence of life in prison violates the Eighth Amendment’s
prohibition on cruel and unusual punishment because
the sentence is grossly disproportionate. But the
Supreme Court has rejected Eighth Amendment chal-
lenges to statutorily mandated life sentences for defen-
dants with two prior felony convictions, see Ewing v.
California, 538 U.S. 11, 25 (2003) (upholding California’s
“three-strikes” law); Lockyer v. Andrade, 538 U.S. 63 (2003),
and we have followed suit, see United States v. Cannon, 429
F.3d 1158, 1161 (7th Cir. 2005). Accordingly, Strahan’s life
sentence does not violate the Eighth Amendment.
  Strahan makes a host of other sentencing argu-
ments—most notably, that the district court should not
have applied a guidelines enhancement for obstruction of
justice, U.S.S.G. § 3C1.1 & cmt. n.4(b), based on his trial
testimony—but we need not address them. Based on his
two prior convictions for felony drug offenses, Strahan
was subject to the statutory-minimum sentence of life in
No. 07-1494                                              11

prison on the conspiracy count, and that sentence
trumped any guidelines calculation. Id. § 5G1.1(b). His
concurrent sentence of 360 months on the crack-distribu-
tion count was also unaffected by any of his other claims
of error. Strahan was deemed a career offender under
the guidelines because of two prior state convictions,
pushing his base offense level to a minimum of 37
and rendering other enhancements meaningless. Id.
§ 4B1.1(a)-(b).
  Strahan submitted a pro se brief after his counsel filed
his opening brief. We agreed to accept the supplemental
brief only after Strahan specified the arguments he in-
tended to advance. We therefore confine our review to the
arguments raised in his motion. These are: (1) that he
did not act in furtherance of the alleged conspiracy; and
(2) one of the two convictions listed in the § 851 notice
was disregarded by the district court for purposes of the
guidelines calculation. The first argument fails along
with the sufficiency-of-the-evidence argument, which
we have rejected for the reasons noted above. Strahan
appears to contend that his actions were aimed at thwart-
ing what he sees as two separate conspiracies—one
involving Falls and Baker, the other involving the
McCrays—but the testimony at trial was to the contrary,
and that evidence was easily sufficient to sustain his
convictions.
  Finally, Strahan notes that the district court disregarded
one of his prior drug convictions listed in the § 851 notice
because it was not clear from the charging document
whether it would have counted as a “controlled sub-
12                                              No. 07-1494

stance offense” for purposes of U.S.S.G. § 4B1.1(a)(2) and
.2(b). He contends that this invalidates his life sentence.
But Strahan conflates two separate standards. Damerville
v. United States, 197 F.3d 287 (7th Cir. 1999). The district
court did not disregard this conviction for purposes of the
§ 851 notice, required for application of the statutory-
minimum life sentence. Instead, the court declined to
rely on the record of conviction for one of Strahan’s prior
drug convictions in calculating his guidelines sentence
because the record was unclear whether it met the guide-
lines definition of a “controlled substance offense.” In
contrast, the mandatory life sentence applies when a
defendant convicted under § 841(a) has two or more
prior “felony drug offense[s].” 21 U.S.C. § 841(b)(1)(A).
There is no dispute that the two state narcotics convic-
tions identified in the government’s § 851 notice met this
standard.
                                                 A FFIRMED.




                           5-15-09
