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

No. 04-2270
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

CARLOS L. CARPENTER,
                                          Defendant-Appellant.

                         ____________
           Appeal from the United States District Court
                for the Central District of Illinois.
            No. 02-10009—Joe Billy McDade, Judge.
                         ____________
    ARGUED FEBRUARY 23, 2005—DECIDED MAY 6, 2005
                   ____________




 Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit
Judges.
  EASTERBROOK, Circuit Judge. While one officer was
giving Carlos Carpenter a ticket for evading a red light,
another arrived with a drug-detection dog. The dog’s alert
provided probable cause to search the car for drugs, which
were duly found. Carpenter pleaded guilty to possession of
crack cocaine with intent to distribute, reserving the right
to contest on appeal the denial of his motion to suppress. He
contended that his situation is identical to the one then
2                                                No. 04-2270

before the Supreme Court in Illinois v. Caballes, 125 S. Ct.
834 (2005), where the state court had held that a drug-de-
tection dog conducts a “search” that is reasonable only if
supported by probable cause.
  After the Supreme Court reversed Caballes and reiterated
its view that use of a dog in a public place does not require
any suspicion, Carpenter changed his tune and argued that
Caballes is distinguishable. The recast argument for
suppression is that waiting for the dog’s arrival made the
detention unreasonably long. Carpenter’s premise is that
Terry v. Ohio, 392 U.S. 1 (1968), governs the procedures
police must use for traffic stops, and prevents them from
investigating potential crimes other than the one that led
to the stop. We held in United States v. Childs, 277 F.3d
947 (7th Cir. 2002) (en banc), that Terry does not govern a
traffic stop supported by probable cause to believe that an
offense has been committed. A panel cannot overrule the en
banc court, and we have no reason to recommend that the
court convene en banc in this appeal. Childs has the
support of Whren v. United States, 517 U.S. 806 (1996),
which treated a stop on probable cause to believe that the
driver had committed a traffic offense as an arrest rather
than an investigative detention. Cf. Atwater v. Lago Vista,
532 U.S. 318 (2001).
  Arresting officers must use reasonable procedures, and
not all of the steps appropriate to full custodial arrests are
good fits for traffic stops. See Knowles v. Iowa, 525 U.S. 113
(1998) (full search of vehicle’s occupants not reasonable un-
less the officer has a well founded suspicion or a full cus-
todial arrest ensues); United States v. Jackson, 377 F.3d
715 (7th Cir. 2004). But given Caballes the only step that
could be attacked as “unreasonable” is delay until the dog
arrived, and that delay was short—by the prosecutor’s
calculation none at all (as Carpenter had to remain where
he was while the officer completed the steps necessary to
issue a citation), and no more than five minutes by
No. 04-2270                                                 3

Carpenter’s calculation. That modest incremental delay for
a person already lawfully arrested cannot be called unrea-
sonable, so the evidence was admissible.
  Carpenter’s sentence of 70 months’ imprisonment depends
not only on the quantity of crack charged in the indictment
(and admitted by the guilty plea) but also on his criminal
history, which the district judge determined to be cate-
gory III. Carpenter contends that this determination of his
criminal history—which raised his sentencing range from
63-78 months to 70-87 months—violates the sixth
amendment. See United States v. Booker, 125 S. Ct. 738
(2005). That contention is mistaken. All of the material facts
are agreed; the dispute concerns the facts’ legal signifi-
cance. Booker phrased the constitutional rule this way:
“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
beyond a reasonable doubt.” Id. at 756. Criminal history is
all about prior convictions; its ascertainment therefore is an
issue of law excluded by Booker’s own formulation and
governed by Almendarez-Torres v. United States, 523 U.S.
224 (1998). Neither judges nor juries pass on the wisdom of
legal rules case by case, and Booker (like its predecessor
Apprendi v. New Jersey, 530 U.S. 466 (2000)), is about who
finds facts rather than what legal consequences those facts
may have. See McReynolds v. United States, 397 F.3d 479,
480-81 (7th Cir. 2005). That is why we held in United States
v. Rosas, No. 04-2929 (7th Cir. Mar. 24, 2005), slip op. 6-7,
that Booker does not affect the process of deciding whether
a prior offense is a crime of violence.
  As the Court explained in Shepard v. United States, 125
S. Ct. 1254, 1262-63 (2005), a sentencing court is entitled to
classify and take into account the nature of a defendant’s
prior convictions, provided that the judge does not engage
in factfinding about what the accused did (as opposed to
4                                                No. 04-2270

what crime he has been convicted of). Carpenter does not
contend that the judge went behind the existence of his
priors to engage in a factual rather than a legal analysis of
his former criminal behavior. (Part III of Shepard, which we
have cited here, was joined by only four Justices, but
another three Justices concluded that recidivist enhance-
ments never create problems under the sixth amendment,
so Part III speaks for the Court as a practical matter.)
  Even if Almendarez-Torres were to be overruled, Carpenter
could not benefit. He concedes that criminal history cate-
gory II, which yields a 63-78 month range, is appropriate.
The range for criminal history category I would have been
57-71 months. His 70-month sentence is within the lowest
range for a person who plans to distribute the amount of
crack that he has admitted possessing with intent to distri-
bute, and he therefore has not received “a sentence exceed-
ing the maximum authorized by the facts established by a
plea of guilty or a jury verdict”.
   This drives Carpenter to argue that he is entitled to be
resentenced even though there is no constitutional problem
in his existing sentence. According to Carpenter, the separ-
ate majority opinion in Booker dealing with remedies (see
125 S. Ct. at 756-69) makes the Sentencing Guidelines
advisory whether or not the judge has resolved any factual
dispute on a preponderance of the evidence. That is true
enough. The remedial majority considered but decided not
to adopt the approach of leaving the Guidelines in full effect
when there is no sixth amendment problem, while knocking
out 18 U.S.C. §3553(b)(1) (which makes them binding) only
when the district judge rather than the jury had to resolve
material factual disputes. “The Government would render
the Guidelines advisory in ‘any case in which the Constitu-
tion prohibits’ judicial factfinding. But it apparently would
leave them as binding in all other cases. We agree with the
first part of the Government’s suggestion. However, we do
not see how it is possible to leave the Guidelines as binding
No. 04-2270                                                5

in other cases. . . . [W]e believe that Congress would not
have authorized a mandatory system in some cases and a
nonmandatory system in others, given the administrative
complexities that such a system would create. Such a
two-system proposal seems unlikely to further Congress’
basic objective of promoting uniformity in sentencing.” 125
S. Ct. at 768.
  Hence in future criminal prosecutions §3553(b)(1) is out
of the picture whether or not the district judge has resolved
disputed issues of material fact. But our review here is for
plain error, and the conclusion (explained above) that there
was no sixth amendment error also forecloses the possibility
of automatic resentencing under the demanding plain-error
standard. See, e.g., United States v. Olano, 507 U.S. 725,
734-37 (1993); Johnson v. United States, 520 U.S. 461, 468-
69 (1997); Jones v. United States, 527 U.S. 373, 394-95
(1999); United States v. Cotton, 535 U.S. 625, 631-33 (2002);
United States v. Dominguez Benitez, 124 S. Ct. 2333, 2339-40
(2004). Instead, we have recently held, the appropriate
response is a limited remand under United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005). See United States v.
Castillo, No. 02-3584 (7th Cir. May 3, 2005), slip op. 31-34;
United States v. White, No. 03-2875 (7th Cir. May 3, 2005),
slip op. 13-16. We need not add to the analysis of Castillo
and White.
  Carpenter’s conviction is affirmed. The matter is remanded
to the district court to make the finding contemplated by
Paladino. After that has been done, this court will complete
its resolution of the appeal.
6                                        No. 04-2270

A true Copy:
      Teste:

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




               USCA-02-C-0072—5-6-05
