In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1129

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

REGINALD WILLIAMS,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 96 CR 20034--Michael P. McCuskey, Judge.


Argued December 8, 2000--Decided January 26, 2001



      Before FLAUM, Chief Judge, and RIPPLE and EVANS,
Circuit Judges.

      RIPPLE, Circuit Judge. Reginald Williams was
convicted of possessing with intent to distribute
cocaine base ("crack") in violation of 21 U.S.C.
sec.sec. 841(a)(1) and 841 (b)(1)(A). The
district court sentenced Mr. Williams to 151
months of imprisonment, a five-year term of
supervised release, and a $50 special assessment.
Mr. Williams now appeals his conviction and
sentence to this court. For the reasons set forth
in this opinion, we affirm the judgment of the
district court.

I
BACKGROUND

      When state police officers executed a search
warrant on an apartment in Champaign, Illinois,
they found Reginald Williams and another man,
Keith Stitt; they also found 79 bags of crack
cocaine in two hollowed-out hardback books as
well as drug paraphernalia. Mr. Williams’
fingerprints were found on both books, and some
personal papers of his also were found elsewhere
in the apartment.

      In May 1999, Mr. Williams was arrested on the
basis of an indictment charging him with
possession of "more than 50 grams of a mixture or
substance containing cocaine base, ’crack’ a
Sche[d]ule II controlled substance with the
intent to distribute it" in violation of 21
U.S.C. sec.sec. 841(a)(1) and 841(b)(1)(A)(iii).
R.1 at 1.

      Before trial, the Government notified Mr.
Williams that it would seek to introduce the
testimony of John Peeler, a confederate of Mr.
Williams. Peeler often had purchased drugs from
Mr. Williams, and the Government intended to
introduce his testimony to demonstrate Mr.
Williams’ "motive, opportunity, intent,
preparation, plan, knowledge and absence of
mistake or accident." R.32 at 6. Peeler would
testify: (1) that he had purchased crack cocaine
from Mr. Williams at the location of the search
on two or three occasions; (2) that he had
purchased crack cocaine from Mr. Williams three
to six times at Mr. Williams’ previous Champaign
residence six or seven months before the search;
and (3) that on 50 to 100 occasions, he had
watched others working for him enter Mr.
Williams’ previous residence and return minutes
later with crack cocaine. In response to the
Government’s notification, Mr. Williams filed a
motion in limine; he claimed that Peeler’s
evidence was not sufficiently related to the
facts of the case and was overly prejudicial
under Federal Rule of Evidence 404(b) ("Rule
404(b)"). In this motion, Mr. Williams also
offered to stipulate that whoever the jury found
to have possessed the cocaine in question also
had the requisite knowledge and intent to be
convicted.

      The district court denied this motion; it held
that the evidence was "very, very relevant . . .
under 404(b)" and that the Government was
entitled to prove its case without such
stipulation, because "the easiest way for the
jury to follow this case and . . . find out what
knowledge and intent to distribute [are] is to
focus on the facts prior to [the search and
recovery of the crack cocaine in this case]."
R.59 at 161-62. At trial, before Peeler
testified, the district court gave a limiting
instruction that his testimony should be
considered only on the question of motive,
opportunity, intent, preparation, plan,
knowledge, identity and absence of mistake or
accident.

      The Government asked the jury to find that Mr.
Williams knowingly possessed "cocaine base
(’crack’)" with intent to distribute. R.43 at 17.
Notably, the jury was instructed specifically
that the "quantity of the cocaine base possessed
by [Mr. Williams] . . . is not an element of this
offense." Id. at 21. After deliberating, the jury
returned a verdict of guilty.
      A presentence report ("PSR") was then prepared.
According to this document, Mr. Williams was
responsible for possessing with intent to
distribute "60.4 grams of cocaine base (crack),"
R.48 at 6 para. 15, and based on his criminal
history category of III and his resulting offense
level of 32, Mr. Williams’ applicable Sentencing
Guideline range was 151 to 188 months. The PSR
also concluded that, based on 21 U.S.C. sec.
841(b)(1)(A), the statutory minimum term of
imprisonment for the offense was ten years and
the maximum term was life. The district court
adopted the PSR’s findings, and it sentenced Mr.
Williams to 151 months of imprisonment, a five-
year term of supervised release, and a $50
special assessment. Mr. Williams now appeals his
conviction and sentence to this court.

II
DISCUSSION
A.

      Mr. Williams first contends that the district
court erred in allowing the Government to
introduce Peeler’s testimony as evidence of
knowledge and intent under Rule 404(b). We review
a district court’s decision to admit evidence
under Rule 404(b) for an abuse of discretion. See
United States v. Williams, 216 F.3d 611, 614 (7th
Cir. 2000). Under Rule 404(b), "evidence of other
misconduct is not admissible to show that the
defendant acted in conformity therewith, but may
be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, or identity." United States v.
Wash, 231 F.3d 366, 370 (7th Cir. 2000) (citation
and quotation marks omitted). We employ a four-
part test to determine the admissibility of
evidence under Rule 404(b):
(1) [T]he evidence [must be] directed toward
establishing a matter in issue other than the
defendant’s propensity to commit the crime
charged; (2) the evidence [must] show[ ] that the
other act is similar enough and close enough in
time to be relevant to the matter in issue; (3)
the evidence [must be] sufficient to support a
jury finding that the defendant committed the
similar act; and (4) the probative value of the
evidence [must] not [be] substantially outweighed
by the danger of unfair prejudice.
Williams, 216 F.3d at 614.

1.

      Mr. Williams contends that the district court
failed to engage in the fourth part of this test.
In his view, the district court’s remark that
Peeler’s testimony was "very, very relevant,"
R.59 at 162, demonstrates that the court
neglected to weigh the relevance of the evidence
against the risk of unfair prejudice to Mr.
Williams.

      This characterization of the district court’s
evaluation of Peeler’s testimony is not supported
by the record. Earlier in the trial, the district
court had employed the Rule 404(b) balancing test
with regard to other evidence that the Government
wished to present regarding Mr. Williams’
knowledge and intent. The court had determined
that "the knowledge and intent issue there was
outweighed by the prejudice" in some cases. R.59
at 160. In addressing Peeler’s testimony, it
noted that it must again employ "the weighing
function" and that Peeler’s testimony was
"narrowly focused [in a time period close to the
search in this case]" and was "not trying to
blacken or tar or show a propensity"; therefore
the court determined that the evidence was
admissible under Rule 404(b). Id. at 161-62. The
record thus demonstrates that the district court
was aware of its duty to balance the prejudicial
effect of Peeler’s testimony to Mr. Williams with
the probative value of the evidence, and that,
indeed, it did so. See United States v.
Hernandez, 84 F.3d 931, 935-36 (7th Cir. 1996)./1

2.

      Mr. Williams also claims that Peeler’s testimony
was unduly prejudicial because Mr. Williams had
offered to stipulate to the elements of knowledge
and intent if the jury found that he possessed
the crack cocaine at issue. He asserts that, in
light of this offer to stipulate to these
elements, the Government had no legitimate reason
to introduce evidence regarding knowledge and
intent.

      We believe that this argument is without merit.
In Old Chief v. United States, 519 U.S. 172
(1997), the Supreme Court explained that "the
accepted rule that the prosecution is entitled to
prove its case free from any defendant’s option
to stipulate the evidence away rests on good
sense." Id. at 189. It held that this general
rule did not apply when the issue in question is
the defendant’s legal status of being convicted
of a prior crime because "proof of the
defendant’s status goes to an element entirely
outside the natural sequence of what the
defendant is charged with thinking and doing to
commit the current offense." Id. at 191.
Therefore, if a defendant offered to stipulate
that he had committed the relevant prior offense,
the risk of unfair prejudice in introducing
evidence demonstrating the commission of such an
offense would generally outweigh its probative
value. See id. at 191-92. Notably, however, the
Supreme Court contrasted that exception with the
sort of situation confronting us here. The Court
noted that if "there were a justification for
receiving evidence of the nature of prior acts on
some issue other than status (i.e., to prove
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident), Rule 404(b) guarantees the opportunity
to seek its admission." Id. at 190 (internal
citation and quotation marks omitted). It
explained that, as a general rule, a defendant’s
ability to stipulate evidence away would hinder
unfairly the prosecution by breaking the "natural
sequence of narrative evidence" and would render
prosecutors unable to meet the jury’s
expectations of proof regarding important
elements of an offense. Id. at 188-89.

      We believe that, in a case such as the one
before us, Old Chief counsels that a defendant’s
offer to stipulate to an element of an offense
does not render inadmissible the prosecution’s
evidence of prior crimes to prove elements such
as knowledge and intent. Here, Mr. Williams’
prior acts were clearly related to the specifics
of the misconduct that he was charged with in the
present case. Additionally, in stark contrast to
the legal status issue in Old Chief, a proposed
stipulation like Mr. Williams’, indicating that
"whoever" possessed the drugs in question had the
relevant intent and knowledge to be convicted,
R.26, Ex.A, simply does not contain the same or
similar evidentiary force as a showing that Mr.
Williams himself had such intent and knowledge.
See United States v. Crowder, 141 F.3d 1202, 1208
(D.C. Cir. 1998) (en banc) (noting that such a
choice is "between concrete evidence of the
defendants’ actions giving rise to natural and
sensible inferences, and abstract stipulations
about hypothetical persons not on trial"), cert.
denied, 525 U.S. 1149 (1999). Moreover, evidence
that is probative as to Mr. Williams’ specific
intent or knowledge, such as the testimony at
issue here, might also help to demonstrate his
guilt on a disputed issue such as possession in a
way that the proffered stipulation could not. See
id. at 1208 (citing Old Chief, 519 U.S. at 187).
As a result, as the other circuits to consider
this issue after Old Chief have held, we believe
that Old Chief counsels that a defendant’s offer
to stipulate unequivocally to an element of an
offense, such as those demonstrating knowledge or
intent, does not render the Government’s evidence
of prior crimes that are relevant to those
elements inadmissible under Rule 404(b). See
United States v. Bilderbeck, 163 F.3d 971, 977-78
(6th Cir.), cert. denied, 528 U.S. 844 (1999);
Crowder, 141 F.3d at 1209; United States v.
Queen, 132 F.3d 991, 997 (4th Cir. 1997)./2 If
such evidence otherwise passes the four-part test
for Rule 404(b) evidence described above, it may
be introduced against a defendant at trial.

3.

      In sum, the district court did not abuse its
discretion in determining that the probative
value of Peeler’s testimony outweighed its
prejudicial effect. Peeler’s testimony was indeed
"very relevant" to Mr. Williams’ knowledge that
he possessed an illegal drug and to his intent to
distribute it. Moreover, the district court gave
a limiting instruction to the jury; it cautioned
the members to consider only Peeler’s testimony
as it regarded motive, opportunity, preparation,
plan, knowledge, identity and absence of mistake-
-a procedural safeguard that we often have found
to minimize the prejudicial effect of such
evidence. See Williams, 216 F.3d at 615; United
States v. Griffin, 194 F.3d 808, 821 (7th Cir.
1999), cert. denied, 120 S. Ct. 1546 (2000);
United States v. Allison, 120 F.3d 71, 75 (7th
Cir. 1997). Therefore, the admission of Peeler’s
testimony under Rule 404(b) was not an abuse of
discretion.

B.

      Mr. Williams also argues that his sentence was
determined erroneously. He relies on Apprendi v.
New Jersey, 120 S. Ct. 2348, 2362-63 (2000), in
which the Supreme Court held that "[o]ther than
the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt." We
cannot accept Mr. Williams’ argument on the basis
of existing circuit precedent. We have held that,
when a defendant is sentenced to a term of
imprisonment within the statutory maximum for the
crime of which he was convicted, "Apprendi is
beside the point." Talbott v. Indiana, 226 F.3d
866, 869 (7th Cir. 2000). Here, Mr. Williams was
convicted of possession with the intent to
distribute a Schedule II controlled substance, in
violation of 21 U.S.C. sec. 841(a). Although the
jury did not specifically find an amount of
cocaine base ("crack") attributable to him, the
district court, in sentencing Mr. Williams to a
term of 151 months in prison, relied on 21 U.S.C.
sec. 841 (b)(1)(A), which authorizes sentences of
up to life imprisonment for offenses involving 50
grams or more of a substance containing cocaine
base. Nevertheless, because the lowest statutory
maximum sentence for any violation of sec. 841(a)
is 20 years when a Schedule II controlled
substance is involved, see 21 U.S.C. sec.
841(b)(1)(C), and Mr. Williams was sentenced to a
term of 12 years and 7 months,/3 his sentence
was not improper in light of Apprendi. See id. at
869 ("When a drug dealer is sentenced to less
than 20 years’ imprisonment--the limit under 21
U.S.C. sec. 841(b)(1)(C) for even small-scale
dealing in Schedule I and II controlled
substances--again, Apprendi is irrelevant . . .
."); see also United States v. Keith, 230 F.3d
784, 787 (5th Cir. 2000); United States v.
Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.),
cert. denied, 121 S. Ct. 600 (2000).

      In sentencing Mr. Williams, the district court
also appears to have relied on 21 U.S.C. sec.
841(b)(1)(A)(iii)’s requirement that any offense
involving more than 50 grams of a substance
containing cocaine base should receive a
mandatory minimum sentence of 10 years. Mr.
Williams claims that the court’s reliance on this
mandatory minimum sentence is also violative of
Apprendi. However, the majority opinion in
Apprendi specifically stated that, in cases
involving a mandatory minimum sentence, the rule
of Apprendi is not implicated when the actual
sentence imposed is less severe than the
statutory maximum. See Apprendi, 120 S. Ct. at
2361 n.13 (citing McMillan v. Pennsylvania, 477
U.S. 79 (1986)). We have held that, in light of
Apprendi’s specific statement regarding this
issue and the opinion’s focus on the "prescribed
statutory maximum," if a defendant is sentenced
under the statutory maximum, his sentence is not
violative of Apprendi, regardless of a district
court’s consideration of a mandatory minimum
sentence. United States v. Smith, 223 F.3d 554,
565-66 (7th Cir. 2000), petition for cert. filed,
(U.S. Nov. 14, 2000) (No. 00-7070), (U.S. Nov.
15, 2000) (No. 00-7021), (U.S. Nov. 15, 2000)
(No. 00-7085). In this respect, our rule is the
same as in the other circuits that have decided
this issue. See United States v. Pounds, 230 F.3d
1317, 1319 (11th Cir. 2000) (per curiam); United
States v. Meshack, 225 F.3d 556, 576 (5th Cir.
2000), cert. denied, Parker v. United States, ___
S. Ct. ___, 2001 WL 13025 (2001); Aguayo-Delgado,
220 F.3d at 934. As a result, because Mr.
Williams was sentenced to a term under the
statutory maximum of 20 years, his claim in this
regard is without merit.

Conclusion

      Therefore, for the reasons set forth in this
opinion, the judgment of the district court is
affirmed.

AFFIRMED


/1 We note in passing that the details of Peeler’s
testimony were clearly sufficient to satisfy the
remaining parts of the four-part test. We often
have upheld the use of similar evidence regarding
past involvement with drugs to demonstrate the
elements of intent and knowledge in a drug
prosecution and have noted that these purposes
are different from demonstrating that a defendant
had a propensity for drug dealing. See United
States v. Griffin, 194 F.3d 808, 820 (7th Cir.
1999), cert. denied, 120 S. Ct. 1546 (2000);
United States v. Allison, 120 F.3d 71, 74 (7th
Cir. 1997); United States v. Long, 86 F.3d 81, 84
(7th Cir. 1996); United States v. Curry, 79 F.3d
1489, 1495 (7th Cir. 1996). We also have held
that a defendant’s past involvement with the same
or a similar type of drugs, in instances far more
removed in time than the events Peeler testified
to (which here occurred only months before the
search in this case, at times in the same
apartment where the drugs were found), have
satisfied the similarity and proximity
requirement of the test. See United States v.
Ruiz, 178 F.3d 877, 880 (7th Cir.), cert. denied,
528 U.S. 897 (1999); Allison, 120 F.3d at 75;
Long, 86 F.3d at 85; United States v. Hernandez,
84 F.3d 931, 935 (7th Cir. 1996). Finally,
Peeler’s testimony certainly could support a
jury’s finding that Mr. Williams committed these
similar past acts. See Long, 86 F.3d at 85-86;
Curry, 79 F.3d at 1496.

/2 In dicta, we have already agreed with the general
proposition that, even after Old Chief, no rule
of law "limits the prosecutor to one piece of
evidence in support of each element of the
offense . . . even when the element is
uncontested--indeed, even when the defendant
offers to admit the element." Gonzalez v.
DeTella, 127 F.3d 619, 621 (7th Cir. 1997)
(citing Old Chief, 519 U.S. at 187-88).

/3 This was the sentence recommended by the
probation officer as the minimum guidelines
sentence.
