                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-2498
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

MACQUILLIE WOODARD,
                                          Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
       Northern District of Indiana, Fort Wayne Division.
            No. 1:02-cr-20—William C. Lee, Judge.
                         ____________
      ARGUED APRIL 5, 2005—DECIDED MAY 18, 2005
                     ____________



 Before POSNER, EASTERBROOK, and EVANS, Circuit
Judges.
  EASTERBROOK, Circuit Judge. A jury convicted Macquillie
Woodard of possessing less than 5 grams of crack cocaine
with intent to distribute that drug. See 21 U.S.C.
§841(b)(1)(C). Because his prior convictions for burglary
made him a career offender, he was sentenced to 210
months’ imprisonment. See U.S.S.G. §4B1.1. The statutory
maximum for distributing any quantity of crack cocaine is
240 months (20 years), and Woodard’s 210-month sentence
conforms to the requirement that career offenders who
commit new drug offenses or crimes of violence serve time
“at or near the maximum term”. 28 U.S.C. §994(h).
2                                                No. 04-2498

Woodard does not contest his latest conviction or the clas-
sification of his older convictions as crimes of violence but
contends that his sentence is too high nonetheless.
  One way of reducing the sentence would be through the
two-level reduction for acceptance of responsibility. Woodard
contends that he is entitled to this benefit because he offered
to plead guilty. He did not, however, offer to plead guilty to
the charge framed in the indictment: that he possessed
more than 5 grams of crack with intent to distribute. His offer
was confined to a lesser included offense. The prosecutor
rejected this proposed plea bargain, and when the case
came to trial Woodard decided to seek outright acquittal.
Instead of conceding that he had intended to distribute the
amount of crack on his person when he was arrested (about
0.6 grams) he made a general denial and put the prosecu-
tion to its proof on all issues: whether he possessed any-
thing, his knowledge of the substance’s nature, his intent to
distribute whatever he may have possessed, and the
quantity for which he was responsible. He was successful in
part—the jury fixed the quantity at less than 5 grams,
which cut the maximum sentence from 40 years to 20, com-
pare §841(b)(1)(B) with §841(b)(1)(C)—but only in part: he
was convicted.
   The question we must decide is whether the district judge
abused his discretion. Woodard has not identified any case
in this circuit holding that a district judge must provide the
reduction to a defendant who seeks outright acquittal after
unsuccessful plea bargaining. The reduction for acceptance
of responsibility is designed to reward guilty pleas (which
spare the prosecution the risk and expense of trial) and
genuine contrition (which implies a reduced risk of recidi-
vism), and Woodard displayed neither; he made an unsuc-
cessful attempt at plea bargaining, then went to trial and
denied everything. The Sentencing Commission has sug-
gested that a defendant who stands trial might be eligible
if the defense is limited to a legal point—although one won-
No. 04-2498                                                    3

ders why the goal of preserving a legal defense for appeal
could not be accomplished by a conditional plea under Fed.
R. Crim. P. 11(a)(2). See U.S.S.G. §3E1.1 Application Note
2. By asking for acquittal on the facts at trial, Woodard took
himself outside the proviso established by Note 2. Instead
of admitting what he did, Woodard denied doing anything
wrong. It is not as if the only good way to defend against
the charge of distributing more than 5 grams was to deny
everything. This may well have weakened his defense in the
jurors’ eyes, for he had been caught red-handed with 0.6
grams of crack while meeting with a would-be customer.
Woodard did not need to deny the obvious; instead he
sought a windfall acquittal. The district judge did not abuse
his discretion in thinking this strategy incompatible with a
genuine acceptance of responsibility for his acts.
  Woodard waited even longer to make another contention:
that his criminal history category should be reduced be-
cause Category VI significantly overstates the seriousness
of his criminal history. He did not make this contention in
the district court at all, so our review is for plain error only—
and then only to the extent of ensuring that the district
court knew that he could depart. (Whether to use a rec-
ognized power to depart is for the district judge alone. See,
e.g., United States v. Jarrett, 133 F.3d 519, 534-35 (7th Cir.
1998).) Category VI is what the Guidelines prescribe for all
career offenders. U.S.S.G. §4B1.1(b). Although the Sentenc-
ing Commission has allowed district judges to use Category
V in exceptional cases, see §4A1.3(b)(3)(A), no defendant is
entitled to such a reduction, and Woodard does not contend
that the district judge was unaware of §4A1.3(b)(3)(A). All
Woodard says now is that his burglary convictions are
almost ten years old, but many convictions of career
offenders will be dated—intervening imprisonment creates
a gap between convictions. See United States v. Belton, 890
F.2d 9, 10-11 (7th Cir. 1989). By omitting any request for a
reduction in the district court, Woodard forfeited the
4                                                No. 04-2498

opportunity for a favorable exercise of discretion (however
unlikely that would have been).
  Finally, Woodard contends that the district judge violated
the sixth amendment by treating him as culpable for about
12 grams of crack under the Guidelines’ relevant-conduct
rules, see §1B1.3, instead of the smaller amount supported
by the jury’s verdict. As far as we can tell, however, §1B1.3
had nothing to do with his sentence. Twelve grams of crack
would have pegged his offense level at 26. See U.S.S.G.
§2D1.1(c)(7). Instead the district court set the offense level
at 32 under the career-offender guideline, which specifies 32
as a floor when the statutory maximum is between 20 and
25 years’ imprisonment. U.S.S.G. §4B1.1(b)(C). So relevant
conduct dropped out—and it did not come back in when the
judge decided where in the range to sentence Woodard.
  The range for a person with offense level 32 and criminal
history category VI is 210 to 262 months (capped for
Woodard at 240 by the statutory maximum). The district
judge selected 210 months, the lowest available, and the
same sentence Woodard would have received had the jury’s
verdict been the only consideration. There was accordingly
no violation of the sixth amendment. As the Court put it in
United States v. Booker, 125 S. Ct. 738, 756 (2005): “Any
fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to the jury be-
yond a reasonable doubt.” The jury’s verdict, plus the prior
convictions (which the jury need not consider), supported a
sentence as high as 240 months. Nothing in Booker affects
the career-offender rules, which pose legal rather than
factual issues for the sentencing judge. See, e.g., United
States v. Carpenter, No. 04-2270 (7th Cir. May 6, 2005);
United States v. Lewis, No. 03-4100 (7th Cir. Apr. 19, 2005),
slip op. 3; United States v. Rosas, 401 F.3d 843, 846-47 (7th
Cir. 2005).
No. 04-2498                                                 5

  Woodard received the full benefit of the jury’s decision
that the crack he intended to distribute weighed less than
5 grams. Had the jury convicted him on the indictment’s
charge, his statutory maximum sentence would have been
40 years. That would have led to offense level 34 under
§4B1.1(b)(B). The sentencing range for level 34 and criminal
history category VI is 262 to 327 months, and all of that
range would have been available (because the statutory
maximum would have been 480 months). Had the district
judge again selected the lowest sentence in the range,
Woodard would have been required to serve 52 months
more than his actual 210-month sentence.
  Although the district judge respected all of Woodard’s
constitutional rights when imposing sentence, Booker makes
the Sentencing Guidelines advisory for all cases. We have
held that this decision governs on plain-error review even
when no violation of the sixth amendment occurred. See
United States v. Castillo, No. 02-3584 (7th Cir. May 3, 2005),
slip op. 32-33; United States v. White, No. 03-2875 (7th Cir.
May 3, 2005), slip op. 13-15. Accordingly, we order a limited
remand under the terms of United States v. Paladino, 401
F.3d 471, 483-84 (7th Cir. 2005), so that the district judge
may say whether he would have imposed a lower sentence
had he anticipated the additional discretion afforded by
Booker. When making this decision, the judge should bear
in mind that Booker does not affect §994(h), which calls for
career offenders to be sentenced at or near the statutory
maximum. This court will retain jurisdiction until it has
received the district judge’s finding.
6                                         No. 04-2498

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-18-05
