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

No. 03-3716
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

RONALD E. BLAKE,
                                       Defendant-Appellant.
                       ____________
           Appeal from the United States District Court
               for the Southern District of Illinois.
       No. 02 CR 30086—G. Patrick Murphy, Chief Judge.
                       ____________
    ARGUED FEBRUARY 15, 2005—DECIDED JULY 11, 2005
                    ____________




  Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
  BAUER, Circuit Judge. A grand jury indicted Ronald
Blake on two counts of distributing cocaine base in violation
of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B), and a
petit jury convicted him on one of the counts. The conviction
elevated Blake to career offender status under § 4B1.1 of
the Sentencing Guidelines, and the district court sentenced
Blake to 360 months’ imprisonment, the lowest sentence in
the applicable range. On appeal, Blake challenges his
conviction on the basis of selective prosecution and seeks a
remand for resentencing under United States v. Booker, 125
S.Ct. 738 (2005). We affirm Blake’s conviction and order a
2                                                      No. 03-3716

limited remand with respect to his sentence pursuant to
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).


                        I. Background
  Hope Kurtz, a white woman, was arrested at the Relax
Inn in Granite City, Illinois on July 3, 2002. She had the
following items in her possession when arrested: several
bags of marijuana; one ounce (28 grams) of cocaine; $1,500
in cash; and a gun. The arresting officers told Kurtz that
she would not be prosecuted if she cooperated with them by
making controlled buys from her supplier. Kurtz agreed to
cooperate and identified Blake, an African-American, as her
supplier. She informed the police that Blake supplied her
with both cocaine and cocaine base every two to three days.
On four or five occasions, Blake fronted Kurtz three or four
ounces of cocaine base.
   Kurtz agreed to make two controlled buys from Blake at
his residence in Cahokia, Illinois. The first buy was coordi-
nated by the Metropolitan Enforcement Group of Southern
Illinois (“MEGSI”). Kurtz called Blake to arrange the buy
and then made the buy on July 5, 2002, under constant
visual surveillance by law enforcement. Kurtz purchased 25
grams of crack on that occasion, a relatively large quantity
that prompted the DEA to investigate.1 Under the super-
vision of agents from the DEA and MEGSI, Kurtz made a
second buy from Blake on July 9, 2002. Kurtz wore a wire
on the second occasion, which recorded her conversation
with Blake as she bought 27.8 grams of crack. Blake was


1
  Though the jury’s acquittal on Count I indicates that it did not
believe that the first controlled buy took place, we include it in our
facts because our focus on a selective prosecution claim is on the
information the government had in its possession when it decided
to prosecute.
No. 03-3716                                                  3

arrested that same day and charged with two counts of
distributing more than five grams of cocaine base in viola-
tion of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B).
  On April 4, 2003, a jury convicted Blake on Count II for
the second controlled buy, but acquitted him on Count I,
which involved the first controlled buy. In light of the con-
viction on Count II, a prior state drug conviction, and a
prior conviction for assault of a federal officer, the district
court concluded that Blake was a career offender under
U.S.S.G. § 4B1.1 and sentenced him to 360 months. The
only issues Blake raises on appeal are selective prosecution
and Booker error.


                      II. Discussion
A. Selective Prosecution
  Blake requests dismissal of the indictment or a remand to
the district court for discovery due to selective prosecution
on the basis of race. Blake’s theory is that the government’s
failure to prosecute Kurtz—a white woman found with
drugs, $1,500 in cash from drug sales, and a gun—coupled
with its prosecution of him—an African-American man who
sold Kurtz 52.8 grams of cocaine base—amounts to race-
based selective prosecution. Blake seizes on comments
made by the district judge to support his claim. For exam-
ple, after the jury returned its verdict and was dismissed,
the judge made the following observation on the record:
    It was very difficult for this jury. I mean, everyone in
    here knows what the problem was. You got a young
    white girl who admitted to selling five ounces of cocaine
    a week and she’s not prosecuted. And this guy is. It’s
    not—that’s a hard swallow.
Tr. April 4, 2003, at 3. The judge made a similar remark at
sentencing:
4                                                No. 03-3716

    I noted on the record when the jury went out, I knew
    they would have a hard time because we had a case
    where the so-called snitch was a white crack whore who
    was found with more dope than what the defendant was
    convicted of. Now I mentioned that because that is just
    simply the case.
Sentencing Tr. at 13. In response, the government asserts
that Blake waived the argument by failing to raise it before
trial and, even if the argument was preserved, it is without
merit.
  Courts generally presume that prosecutors faithfully
and lawfully discharge their constitutional duties and, in
the ordinary case, prosecutors have significant discretion to
determine whether or not to prosecute. United States v.
Armstrong, 510 U.S. 456, 464 (1996). That discretion is, of
course, “subject to constitutional constraints.” Id. (citation
omitted). Notably, “the decision to prosecute may not be
based on ‘an unjustifiable standard such as race, religion,
or other arbitrary classification.’ ” Id. (quoting Oyler v.
Boles, 368 U.S. 448, 456 (1962)). To establish selective pros-
ecution on an arbitrary classification such as race, a
claimant must demonstrate that the prosecutorial policy
“had a discriminatory effect and that it was motivated by a
discriminatory purpose.” Id. at 465 (citation omitted). “To
establish a discriminatory effect in a race case, a claimant
must show that similarly situated individuals of a different
race were not prosecuted.” Id.
  We begin with the government’s contention that Blake
waived his selective prosecution claim by failing to raise it
before trial. According to the government, Blake did not
raise selective prosecution until five months after trial in a
motion alleging ineffective assistance of counsel. The govern-
ment is correct that selective prosecution claims must be
raised before trial. United States v. Jarrett, 705 F.2d 198,
204 (7th Cir. 1983); FED. R. CRIM. P. 12(b). However, Blake
No. 03-3716                                                   5

did raise the issue in a pre-trial motion to dismiss the indict-
ment based on the government’s allegedly unconstitutional
plea bargaining tactics and selective prosecution. R. 42. Even
though the focus of the motion was on the government’s plea
bargaining tactics, Blake also cited to Armstrong, the
leading Supreme Court case on selective prosecution, for the
proposition that “the decision to prosecute may not be based
on an unjustifiable standard such as race, religion, or other
arbitrary classification.” At a pre-trial hearing, the district
judge denied the motion, explaining that the argument was
without merit unless Blake had some evidence that the deci-
sion to prosecute was based on race. R. 51. Consequently, we
reject the government’s argument that Blake did not raise
selective prosecution before trial and proceed to the merits
of the appeal.
  As noted above, Blake’s argument centers on the govern-
ment’s failure to prosecute Kurtz. Blake contends that not
only was Kurtz similarly situated to him such that she
should have been prosecuted, she was more culpable than
him in that she admitted to selling approximately 24 ounces
of cocaine and possessing a gun while Blake was only con-
victed of selling 27.8 grams of crack. This argument suffers
from a number of faults. First, and most importantly, Kurtz
and Blake were not similarly situated. Blake was Kurtz’s
supplier; Kurtz was a user who likely only sold drugs to
support her habit. The government differentiates between
users and suppliers in thousands of drug prosecutions every
year, and this case was no different. Even though Kurtz did
sell drugs, there does not appear to be any question that
Blake was further up the drug chain than she. Indeed, the
local police promised Kurtz that she would not be prose-
cuted if she cooperated with them, Kurtz agreed and
identified Blake as her supplier, and her controlled buys
from Blake confirmed her story. In light of the foregoing
circumstances, including Kurtz’s valuable assistance to the
government, the government had good reason to differenti-
ate between Blake and Kurtz.
6                                               No. 03-3716

  Blake also takes an artificially narrow view of his culp-
ability. When comparing himself to Kurtz, Blake limits his
focus to the quantity of drugs that the jury found him re-
sponsible for rather than considering all of the information
that the prosecution had when it decided to prosecute.
During two controlled buys, Blake supplied Kurtz with over
50 grams of crack in the span of three days. Those deals
substantiated the information that Kurtz had given the
government, namely that Blake had been supplying her with
cocaine and cocaine base every few days for several months.
If it was true that Blake had been supplying Kurtz with
drugs, it was doubtful that she was the only person in the
community that he was supplying. The government also
knew that Blake had a prior conviction for possession and
transportation of more than three pounds of cocaine, which
suggested that Blake was not merely a novice or a user. The
jury did not hear any evidence about Blake’s prior involve-
ment in the drug trade because the district judge excluded
everything except the two controlled buys as unduly
prejudicial under FED. R. EVID. 404(b), but the prosecution
was aware of it and it gave them additional reason to
conclude that Blake and Kurtz were not similarly situated.
Because we see no constitutional problem with the govern-
ment’s decision to prosecute Blake and its decision to forego
prosecution of Kurtz, we reject Blake’s selective prosecution
theory.


B. Sentencing
  Blake’s 360-month sentence was driven by the district
court’s determination that he qualified as a career offender
under the Sentencing Guidelines. In his sentencing brief,
Blake asserts that the district judge made factual findings
that run afoul of the Sixth Amendment as interpreted by
Booker and its progeny. But this argument ignores the prior
convictions exception to the Booker/Apprendi rule: “Any
No. 03-3716                                                 7

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 by a jury
beyond a reasonable doubt.” Booker, 125 S.Ct. at 756 (em-
phasis added); Almendarez-Torres v. United States, 523 U.S.
224 (1998). Nevertheless, Blake is entitled to a limited
remand because “the mere mandatory application of the
Guidelines—the district court’s belief that it was required
to impose a Guidelines sentence—constitutes error.” United
States v. White, 406 F.3d 827, 835 (7th Cir. 2005). While
some cases present circumstances that obviate the need for
a limited remand, United States v. Lee, 399 F.3d 864 (7th
Cir. 2005), the following statement by the district judge in
the instant case indicates that he may have given Blake a
lighter sentence had he known the Guidelines were merely
advisory:
    Well, I think it is obvious I take no joy, pleasure or
    satisfaction whatsoever in imposing this sentence on
    Mr. Blake. Mr. Blake deserves a sentence. He should
    be—he has some time coming, but I am constrained by
    what is here. I will commit him to the custody of the
    Bureau of Prisons for a term of 360 months, which is
    the least amount of time I can give him.
Sentencing Tr. at 7.
  A further consideration for the district judge on limited
remand is the Supreme Court’s recent holding that sen-
tencing courts considering factual issues related to prior
convictions are “generally limited to examining the statu-
tory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding
by the trial judge to which the defendant has assented.”
Shepard v. United States, 125 S.Ct. 1254, 1257 (2005);
United States v. McGee, et al., 2005 WL 1324815 (7th Cir.
June 5, 2005) (directing district court to consider the effect
8                                               No. 03-3716

of Shepard on limited remand). Police reports or complaint
applications are not appropriate sources to consult when
making such determinations. Id. One of Blake’s objections
at sentencing was that his prior convictions amounted to
one conviction under U.S.S.G. § 4B1.1 because they were
related. The district court disagreed, apparently relying on
Blake’s presentence report. We have reviewed Blake’s pre-
sentence report, which states that the information related
to his prior convictions came from “court records.” Blake
PSR at 8. Considering that Blake pleaded guilty to the two
prior convictions, the category of “court records” presumably
includes charging documents, written plea agreements, and
transcripts of plea colloquies—all sources of “conclusive
significance” under Shepard—but it may extend beyond
that into sources that are not authorized by Shepard.
Shepard, 125 S.Ct. at 1262. This possible Shepard problem
provides an additional basis to direct a limited remand with
regard to Blake’s sentence. If the district judge states that
he relied on sources that are now improper under Shepard,
that the portion of the presentence report he relied on in
resolving Blake’s objection was based on an improper
source, or that he would have imposed a different sentence
had he known the Guidelines were advisory, then we will
vacate the original sentence and remand for resentencing.
Paladino, 401 F.3d at 484. If the judge informs us that
there was no Shepard problem and that he would reimpose
the original sentence even under an advisory sentencing
regime, “we will affirm the original sentence against a
plain-error challenge provided that the sentence is reason-
able . . . .” Id.


                     III. Conclusion
  For the reasons stated herein, we AFFIRM Blake’s con-
viction and order a LIMITED REMAND with respect to his
sentence.
No. 03-3716                                          9

A true Copy:
      Teste:

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




               USCA-02-C-0072—7-11-05
