                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-1613

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

                               v.

R OBERT A. H EARN ,
                                            Defendant-Appellant.




           Appeal from the United States District Court
               for the Central District of Illinois.
            No. 06 CR 30040—Jeanne E. Scott, Judge.



   A RGUED F EBRUARY 21, 2008—D ECIDED JULY 18, 2008



  P ETITIONS FOR R EHEARING D ECIDED D ECEMBER 5, 2008




  Before F LAUM, R IPPLE and R OVNER, Circuit Judges.
  R IPPLE, Circuit Judge. This matter is before the court on
the petitions for rehearing of both parties. For the reasons
set forth in this opinion, we deny Mr. Hearn’s petition and
2                                                 No. 07-1613

grant the Government’s petition. After reconsideration, the
judgment of the district court is affirmed.


                               I
                      BACKGROUND
   After a trial that included a substantial amount of “prior
crimes and bad acts” evidence, Robert Hearn was con-
victed of possession with intent to distribute 11 grams of
crack cocaine. He was sentenced as a career offender to 360
months’ imprisonment. On appeal, Mr. Hearn objected to
the admission of the evidence surrounding his prior
conviction for crack cocaine distribution; he contended that
it had been used to show his propensity to commit the
crime rather than his intent to distribute. He also chal-
lenged his sentence; he contended that the 100:1
crack/powder cocaine ratio was unconstitutional.
  In our original opinion, we concluded that the district
court did not abuse its discretion in admitting, under
Federal Rule of Evidence 404(b), the evidence about his
prior conviction for crack cocaine distribution. Specifically,
we noted that (1) Mr. Hearn himself had placed the issue
of his intent to distribute squarely at issue; (2) the district
court had correctly determined that the evidence was
probative of his intent to distribute; (3) the district court
had determined correctly that the evidence was not unduly
prejudicial, particularly given that Mr. Hearn himself had
moved to admit evidence of his status as a career offender
in order to show his state of mind when speaking with
Government agents and (4) the district court had given an
No. 07-1613                                                  3

effective limiting instruction to the jury. With respect to his
sentence, we determined that, because Mr. Hearn was
sentenced (and his appellate briefs were filed) prior to the
Supreme Court’s decision in Kimbrough v. United States, 128
S. Ct. 558 (2007), and because his offense involved crack
cocaine, a remand for resentencing in light of Kimbrough
was required.


                              II
                       DISCUSSION
  We shall address in turn the contentions in each of the
petitions for rehearing.


                              A.
  Mr. Hearn’s petition submits that we incorrectly attrib-
uted to Mr. Hearn the statement that “a heavy crack user
could use up [11 grams] of cocaine base in a few days,” Tr.
at 374. In fact, Mr. Hearn did not make this statement; this
testimony instead was elicited from the Government’s
witness on cross-examination by Mr. Hearn’s counsel. Mr.
Hearn testified only that 11 grams of crack cocaine was not
a “substantial amount” of crack, Tr. at 445-46. Because he
denied possession of the drugs, he did not testify himself
regarding his intent to distribute.
  Mr. Hearn is correct that our opinion attributes to him
the opinion about the amount of crack that a heavy user
could consume personally in a few days. However, this
inaccuracy does not alter substantially our basic analysis.
4                                                No. 07-1613

Mr. Hearn’s counsel elicited a statement from the Govern-
ment’s witness on cross-examination that the amount of
crack in question was not necessarily indicative of an intent
to distribute, and his counsel referred to that statement in
his closing statements. Mr. Hearn himself alluded to the
fact that the amount of drugs in question was insubstantial.
Most importantly, Mr. Hearn’s counsel questioned the
Government’s proof on the issue of intent on a number of
occasions in his opening and closing statements. This line
of defense places the defendant’s intent squarely at issue.
  Mr. Hearn contends that his counsel was entitled to
question the Government’s proof on the intent element
during the trial—without being considered to have placed
the issue of intent at issue himself—because the judge
already had ruled on the evidence’s admission prior to
trial. The district court, however, had ruled on the issue in
anticipation of Mr. Hearn’s defense at trial, and Mr. Hearn
gave no indication that he would not challenge the intent
element. The district court also noted that Mr. Hearn
already had filed a motion expressing his intent to intro-
duce at trial proof of his sentencing exposure, which was
based on his prior convictions, in order to show his state of
mind when speaking with the Government in his proffer
session. Noting the fact that evidence of these convictions
already would be introduced by Mr. Hearn himself, the
court concluded that additional evidence regarding his
prior drug convictions would be probative and not unduly
prejudicial. Furthermore, as we note in the opinion, it is not
necessary for the defendant to have placed the question of
his intent at issue himself in order for the district court to
determine that such 404(b) evidence is admissible. See 534
No. 07-1613                                                   5

F.3d at 712 (citing United States v. Jones, 455 F.3d 800, 808-09
(7th Cir. 2006) (collecting cases, and noting that evidence of
prior convictions is particularly probative when the defen-
dant places his intent at issue, but it is also relevant and
probative when the defendant “flatly contests all elements
of the charge”)). The district court also gave a proper
limiting instruction regarding the jury’s use of the evi-
dence. Therefore, the district court did not abuse its
discretion in admitting the evidence in question, and Mr.
Hearn’s request for a rehearing must be denied.


                              B.
  In United States v. Booker, 543 U.S. 220 (2005), the Supreme
Court announced that the United States Sentencing
Guidelines are merely advisory to the district courts. In
Rita v. United States, 127 S. Ct. 2456 (2007), the Court made
clear that a district court may depart from the Guidelines
based on a policy disagreement with the Commission; that
is, they may depart if they conclude that the Guidelines
prescribe a sentence that fails to reflect Congress’ purposes
in creating the sentencing regime. Id. at 2465. Finally, in
Kimbrough, the Court established that its holdings in Booker
and Rita apply with full force to sentences for crack
offenders sentenced under the “drug quantity” Guideline,
U.S.S.G. § 2D1.1. Kimbrough, 128 S. Ct. at 564 (“We hold
that, under Booker, the cocaine Guidelines, like all other
Guidelines, are advisory only, and that the Court of
Appeals erred in holding the crack/powder disparity
effectively mandatory.”). In the wake of Kimbrough, we
adopted the practice of remanding cases in which the
6                                               No. 07-1613

crack/powder disparity had been preserved for
resentencing. See United States v. Taylor, 520 F.3d 746, 747-
48 (7th Cir. 2008). In cases where the crack/powder dispar-
ity had not been preserved adequately, we permitted a
limited remand in order to permit the district court to
inform us whether it was inclined to resentence the
defendant if the case were remanded. Id.
  The Supreme Court has not had occasion to address
whether Kimbrough’s holding applies to crack offenders
sentenced under the career offender Guideline, U.S.S.G.
§ 4B1.1(b), and our own pronouncements on this question
have been inconsistent. As the Government points out, in
this case we remanded a sentence imposed under the
career offender Guideline for resentencing in light of
Kimbrough, 534 F.3d at 707. Our decision necessarily
assumed, without explicitly deciding, that the holding of
Kimbrough applied to sentences under the career offender
Guideline. In other cases, decided shortly after our decision
in this case, the court held explicitly that offenders sen-
tenced under the career offender Guideline should not be
accorded a Kimbrough/Taylor remand. United States v.
Harris, 536 F.3d 798, 812-13 (7th Cir. 2008) (holding that
sentences imposed under the career offender Guideline are
not eligible for remand under Kimbrough and Taylor
because a sentence under the career offender Guideline
“raises no Kimbrough problem”). See also United States v.
Clanton, 538 F.3d 652, 660 (7th Cir. 2008) (same).
  The Government submits, and we agree, that the explicit
holding of the court in Harris must govern on the general
question of whether a defendant sentenced under the
No. 07-1613                                                   7

career offender Guideline can receive a Kimbrough/Taylor
remand. 536 F.3d at 812-13.
  Resolution of this question does not end the matter,
however. When a court sentences under the career offender
Guideline, it has the right, of course, to determine that the
resulting Guideline sentence is not appropriate and to elect
to impose a lesser sentence that, in the judgment of the
sentencing court, comports with the criteria of 18 U.S.C.
§ 3553. Id. at 813. When this assessment implicates the
crack/powder cocaine issue, the resentencing court must,
of course, be respectful of the statutory disparity between
crack and powder cocaine. See 21 U.S.C. § 841(b) (setting
the same statutory maximum and minimum for five
kilograms of powder cocaine and fifty grams of crack
cocaine). See Harris, 536 F.3d at 812-13. Nevertheless, even
with this statutory constraint, there well may be instances
when the 100:1 ratio of the Guidelines will have an effect
on the individualized sentencing decision. For instance, a
sentencing court may determine that, in a particular case,
the applicable career offender Guideline range perpetuates,
indirectly, the 100:1 Guideline ratio, or it may be evident
that the sentencing court in arriving at an individual
sentence under the career offender Guideline was influ-
enced by the misapprehension that the 100:1 ratio was a
“given” about which it could not disagree. In these cases,
our decision in United States v. Liddell, 543 F.3d 877 (7th Cir.
2008), makes clear that the sentencing court is free to
disagree with the 100:1 ratio in arriving at a final sentenc-
ing determination. 543 F.3d at 883-85.
  However, Mr. Hearn cannot obtain a remand under this
principle. He did not make this argument to us and,
8                                              No. 07-1613

therefore, we must assess its merits under the plain error
doctrine. As we noted explicitly in Liddell, this “more
nuanced argument based on Kimbrough,” 543 F.3d at 883,
could not be considered “plain” prior to the advent of
Liddell since Kimbrough itself did not deal with the career
offender context, and it previously was not clear that
Kimbrough extended to this context.


                       Conclusion
  Accordingly, we deny the defendant’s petition for
rehearing, and we grant the Government’s petition for
rehearing. The judgment of the district court is affirmed.


                                              AFFIRMED




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