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

No. 04-2015
UNITED STATES OF AMERICA,
                                         Plaintiff-Appellee,
                            v.

CEDRIC WASHINGTON,
                                     Defendant-Appellant.
                      ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
     No. 03 CR 20045—Michael P. McCuskey, Chief Judge.
                      ____________
     ARGUED APRIL 6, 2005—DECIDED AUGUST 9, 2005
                     ____________




 Before BAUER, RIPPLE, and WOOD, Circuit Judges.
  BAUER, Circuit Judge. In December 2003, a grand jury
returned a two-count superseding indictment against Cedric
Washington for crack distribution in Champaign, Illinois.
Washington was convicted on both counts and the district
court sentenced him to 420 months’ imprisonment. On
appeal, Washington asserts that his conviction must be
reversed due to judicial bias and improper argument by the
prosecutor. Washington also challenges his sentence on the
basis of United States v. Booker, 125 S.Ct. 738 (2005). For
2                                                   No. 04-2015

the reasons that follow, we affirm Washington’s conviction
and order a limited remand on his sentence pursuant to the
procedure outlined in United States v. Paladino, 401 F.3d
471 (7th Cir. 2005).


                       I. Background
  Rebecca Fullerton, who testified for the government at
Washington’s trial, lived in an apartment on Washington
Street in Champaign with her boyfriend Asano Williams
(“Meechie”) during the time in question. Fullerton testified
that Washington began staying with her and Meechie
during March 2003, and that Washington distributed crack
cocaine from the apartment. Both Fullerton and Meechie
sold drugs for Washington.
  Anthony Dysart and Daryle Washington,1 also govern-
ment witnesses at the trial, were police informants who
made controlled buys from Washington. Around the time
that Washington started staying with Fullerton, local police
officers arranged for Dysart to make a controlled buy from
the apartment next door to Fullerton’s apartment. The
apartment’s occupants told Dysart to go next door to
Fullerton’s apartment to buy drugs. Dysart followed the
instructions and purchased .5 grams of crack from
Washington. The transaction was not recorded or charged
in the superseding indictment.
  The police then arranged for Daryle to make two con-
trolled buys from Washington at Fullerton’s apartment. On
both occasions, the police provided Daryle with money and
outfitted him with a video recording device. On the first
occasion, April 9, 2003, Daryle entered the apartment and


1
  Daryle Washington and defendant Cedric Washington are not
related. To avoid confusion, we will refer to Daryle Washington as
Daryle.
No. 04-2015                                                 3

purchased 10.6 grams of crack from Washington. On the
second occasion, April 17, 2003, Daryle met with
Washington in Fullerton’s apartment and then waited while
Washington retrieved the drugs from another location.
Washington promptly returned and sold Daryle 3.2 grams
of crack for $100.
  Champaign police officers arrested Washington on
April 29, 2003. He had over $500 in his possession. After
Washington waived his rights, the officers advised him that
they knew that he was distributing crack cocaine and that
they had conducted controlled purchases from him. Wash-
ington responded by nodding his head.
  On December 3, 2003, a grand jury returned a supersed-
ing indictment charging Washington with distribution of
five or more grams of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B) and distribution of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The two
counts related to the two controlled buys that Daryle made
from Washington. A jury convicted him on both counts after
a two-day trial. At sentencing, the district court concluded
that Washington was a career offender under U.S.S.G.
§ 4B1.1. After determining that his offense level under
§ 4B1.1 was 37, his criminal history category was VI, and
the resulting sentencing range was 360 months to life im-
prisonment, the district court sentenced Washington to 420
months’ imprisonment. Washington timely appealed.


                      II. Discussion
A. Judicial Bias
  Washington’s first argument is that the district court
improperly used its inquiry power during the two-day trial
to bolster the credibility of prosecution witnesses.
Washington takes issue with exchanges between the district
judge and Fullerton, Daryle, and Dysart. According to
4                                                 No. 04-2015

Washington, the judge’s questions to those witnesses
conveyed a protective, reassuring, benevolent disposition
towards them and the prosecution’s theory of the case. This
favoritism, Washington asserts, created a tag-team effect
between the judge and prosecution that could not have been
lost on the jury. In response, the government argues that
the district court’s questions did not convey a bias in favor
of the government or cause Washington any prejudice. We
agree with the government.
  Federal judges have wide discretion to determine the role
that they will play during the course of a trial.
United States v. Verser, 916 F.2d 1268, 1272 (7th Cir. 1990)
(citation omitted). A district judge is free to interject during
a direct or cross-examination to clarify an issue, to require
an attorney to lay a foundation, or to encourage an examin-
ing attorney to get to the point. FED. R. EVID. 614(b); United
States v. Reynolds, 189 F.3d 521, 528 (7th Cir. 1999). The
judge may also choose to play a more passive role when the
case calls for it. But in exercising his discretion regarding
when to intercede and when to cede the floor to the attor-
neys, the judge must refrain from “assum[ing] the role of an
advocate for either side.” United States v. Martin, 189 F.3d
547, 553 (7th Cir. 1999) (citation omitted). If a party claims
that a trial judge crossed the line and displayed partiality
towards the other side, we analyze the issue pursuant to a
two-step inquiry. Id. First, we inquire whether the judge in
fact conveyed a bias regarding the defendant’s honesty or
guilt. Id. If so, we consider whether the complaining party
has shown serious prejudice resulting from the district
court’s comments or questions. Id.
  We begin with the challenged exchange between Fullerton
and the district judge, which took place during the govern-
ment’s re-direct examination:
    Court:           Ms. Fullerton, when you came into this
                     courtroom this morning—have you ever
                     testified in court before?
No. 04-2015                                                  5

    Witness:         No.
    Court:           And when you raised your hand and
                     you took the oath from the clerk, what
                     did that mean to you?
    Witness:         What did it mean to me?
    Court:           Yes.
    Witness:         The truth, to tell the truth.
    Court:           And you’re not concerned about any-
                     thing but telling the truth?
    Witness:         Yes.
    Court:           Whether that makes the police officers
                     happy or not is irrelevant; your job is to
                     tell the truth?
    Witness:         Yes.
Tr. 293-94. Washington views the foregoing questioning
as the judge’s attempt to rehabilitate Fullerton after his
attorney’s cross-examination of her.
  As an initial matter, we acknowledge that it is difficult for
an appellate court, working only with the cold record, to
read words in a transcript and decide whether they unfairly
build up a government witness or disparage the defendant.
We cannot recreate the judge’s or the witness’s intonations
or body language, nor can we assess exactly how the jury
reacted to the witness on the stand. That said, we see no
problem with the judge’s questioning of Fullerton because
there are numerous innocuous explanations for the judge’s
interruption. Indeed, the effect of the questioning, if any,
may have actually cut the other way. Reminding a witness
that she is under oath and exploring what that means is a
tack used on cross-examination as often or more often than
it is used on re-direct. In other words, jurors could have
seen the district judge’s questioning as a challenge to
6                                               No. 04-2015

Fullerton’s credibility and a warning not to lie rather than
rehabilitation. Or, as was suggested at oral argument,
perhaps the judge was warning the government not to
suborn perjury. Regardless of the judge’s intentions, the
issue was clearly collateral, we doubt that it had an appre-
ciable impact on the jury, and we are confident that it did
not cause Washington any prejudice. We accordingly reject
Washington’s judicial bias claim as it relates to the judge’s
exchange with Fullerton.
  Washington’s challenge to the district judge’s questioning
of Daryle also lacks merit. Washington objects to the judge’s
interruption of defense counsel’s cross-examination of
Daryle to engage in a “frivolous discussion” about his watch.
But this discussion stemmed from the judge’s desire to
clarify for the jury that it was Daryle’s watch that was
briefly blocking the camera during the video recording of
one of his controlled buys from Washington; it is the judge’s
prerogative to interject to clarify an issue that may cause
jury confusion. Martin, 189 F.3d at 553. We conclude that
this discussion did not convey judicial bias.
  Washington’s final beef with the district judge centers on
an exchange with Dysart about his military service:
    Def. Counsel:   So, in order to make sure that your life
                    is safe, lying and deceiving is [sic] very
                    important.
    Witness:        I learned that in the military.
    Court:          What did you say?
    Witness:        I learned that in the military.
    Court:          You were in the military.
    Witness:        Yes, sir.
    Court:          What branch?
    Witness:        Army.
No. 04-2015                                               7

    Court:          When?
    Witness:        1 October ‘74 to 22 April ‘81.
    Court:          You were in the military for more than
                    ten years?
    Witness:        I was in there for about seven and a
                    half years.
    Court:          Seven and a half years. And were you
                    honorably discharged?
    Witness:        Yes, sir.
    Court:          What rank did you have when you left?
    Witness:        I was E4—I was E5, but I got let down
                    to E4.
    Court:          Thank you.
Tr. 326-27. Washington characterizes this interruption
and questioning as unvarnished judicial favoritism in that
the judge cut off defense counsel’s cross-examination at a
crucial point to delve into a completely irrelevant area.
Washington also criticizes the judge for bolstering Dysart’s
credibility by asking about his military service and then
immediately cutting off questioning when Dysart mentioned
the reduction in rank.
  We think Washington’s criticism is misplaced. Defense
counsel was cross-examining Dysart on the lies and deceit
necessary in the life of a government informant when
Dysart made an odd comment—that he learned about lying
and deceiving in the military. This remark probably merited
the judge’s intervention, at least to clarify the cryptic
statement for the jury. Even if it could be said that the
judge’s follow-up questions about Dysart’s rank, branch,
and time of service were not entirely necessary, it does not
follow that they conveyed judicial bias or that they preju-
diced Washington. As we have noted in prior cases, a
8                                                No. 04-2015

district judge’s comments must be evaluated in the context
of the trial. Verser, 916 F.2d at 1273. In this case, the
district judge was relatively active in questioning the
witnesses, regardless of whether it was the prosecutor’s or
defense counsel’s examination. For example, though
Washington only objects to one exchange between the judge
and Dysart, the judge also asked Dysart questions during
the prosecutor’s direct examination, Tr. 306, after the pros-
ecutor’s direct examination but before defense counsel’s
cross-examination, Tr. 312-14, and then another time dur-
ing defense counsel’s cross-examination of Dysart prior to
the inquiry about his military service. Tr. 321. Not only was
the judge even-handed in terms of when he chose to make
his inquiries, the topics covered by the questioning—the
amount Dysart was being paid for his testimony, the code
used by local drug dealers, Dysart’s military service—also
suggest impartiality and indicate that he was simply trying
to get the facts out for the jury. Moreover, Dysart did not
provide direct testimony about the crimes charged, which
makes it difficult for Washington to argue that he was
seriously prejudiced by the exchange. The potential for
prejudice was further reduced by the district court’s in-
struction at the close of the case that nothing it did or said
was meant to reflect any opinion on its part about the facts
or what the verdict should be. United States v. Evans, 994
F.2d 317, 324 (7th Cir. 1993). For all of these reasons, we
decline to reverse Washington’s conviction on the basis of
the judge’s discussion with Dysart.


B. Prosecution’s Rebuttal Argument
  Washington next challenges the propriety of the prose-
cutor’s rebuttal argument. According to Washington, the
prosecutor’s rebuttal was profoundly unprofessional and pre-
judicial in that it was directed at defense counsel personally
and accused her (inaccurately) of completely misrepresenting
No. 04-2015                                                  9

the evidence to the jury. Washington insists that the im-
proper argument rendered his trial fundamentally unfair.
Because Washington did not object to the prosecutor’s
rebuttal at trial, we review under the deferential plain error
standard.
  Claims of prosecutorial misconduct are analyzed under
the framework established by the Supreme Court in Darden
v. Wainwright, 477 U.S. 168 (1986). Under Darden, we first
consider whether the prosecutor’s comments were improper.
Id. at 180-81. If the comments were improper, we must de-
cide whether they prejudiced the defendant. Id. Six factors
guide the prejudice inquiry: “(1) whether the prosecutor
misstated the evidence, (2) whether the remarks implicate
specific rights of the accused, (3) whether the defense in-
vited the response, (4) the trial court’s instructions, (5) the
weight of the evidence against the defendant, and (6) the
defendant’s opportunity to rebut.” Howard v. Gramley, 225
F.3d 784, 793 (7th Cir. 2000). The Darden Court empha-
sized that it “is not enough that the prosecutors’ remarks
were undesirable or even universally condemned. The
relevant question is whether the prosecutors’ comments so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden, 477 U.S. at 181
(internal quotations and citations omitted). With this
deferential standard in mind, we turn to the specifics of the
claim in the instant case.
  This was a hard-hitting rebuttal argument by the prose-
cutor, full of harsh criticism of the defendant’s theory of the
case. The prosecutor started with this comment:
    Ladies and gentlemen, I don’t intend to respond to
    much of that nonsense. You’ve heard enough from the
    lawyers, and it’s time for this defendant to be judged;
    but there were so many misrepresentations of the evi-
    dence that some response is necessary.
10                                               No. 04-2015

Tr. 666-67. The prosecutor went on to characterize the ma-
jority of the defense arguments as “made up,” “absolutely
false,” “ridiculous,” or “ludicrous.” For example, the prosecu-
tor argued in closing that the April 9 videotape showed
Daryle making a controlled buy from Washington. In her
summation, defense counsel suggested that the videotape of
the first buy showed Meechie retrieving drugs from his
mouth for Daryle. In rebuttal, the prosecutor called this
theory “just absolutely ludicrous.” Tr. 668. With regard to
the second buy, defense counsel argued that Daryle got the
drugs from a man who was seen on the videotape sitting on
the steps in Washington’s apartment complex as Daryle
walked up to Washington’s apartment. That argument,
according to the prosecutor, was “just completely made up.”
Tr. 669. Similar remarks were made throughout the
rebuttal.
  We think that the rebuttal could have been more artful
and that some of the comments pushed the bounds of
zealous advocacy. While it was surely appropriate for the
prosecutor to emphatically rebut defense counsel’s argu-
ments, the overall tone of the rebuttal was probably overly
strident. Nonetheless, contrary to Washington’s contention,
the prosecutor’s arguments were largely focused on the
lameness of the defense rather than defense counsel person-
ally. In addition, a review of the record, including the
videotape recordings, illustrates that the theory of the
defense was rather weak. The jury apparently did not buy
the defense, and the district judge was also unimpressed—
in a post-trial ruling, he called the defense “a very creative
version of the facts with little support in the evidence.”
None of this, of course, is a reflection on defense counsel;
“counsel represent many people with lame defenses,” United
States v. Sblendorio, 830 F.2d 1382, 1395 (7th Cir. 1987),
and it is an attorney’s duty to zealously advocate for her
client even in the face of difficult facts. Though the defense
No. 04-2015                                               11

theory may not have been the most likely course of events,
we think that the defense attorney did a fine job with the
hand she was dealt.
  The prosecutor had legitimate grounds for some of his
comments, and a more questionable basis for others. One
argument made by the prosecutor was that Daryle walked
right past the man on the stairs on April 17 and had no
opportunity to get drugs from him. In her closing, defense
counsel submitted that the videotapes were not in real time
so that what looked like a few seconds on the video may
actually have been longer. This argument was a stretch
with little evidentiary support and the prosecutor probably
did not overstate it in saying that the representation was
“plainly false.” On the other hand, the prosecutor called
defense counsel’s representation that Daryle was getting
paid over $1,000 for his work “just absolutely false” because
he was being paid $200. Actually, the representation was
not false because the lawyers appear to have been talking
about different things: the defense attorney was referencing
the total amount Daryle was paid for his assistance with
various cases while the prosecutor focused on the amount
Daryle was paid for his work on Cedric Washington’s case.
It was also questionable for the prosecutor to assert during
rebuttal that Dysart and Daryle would not risk their
positions as informants and their freedom by committing
perjury to convict Washington. Cf. United States v.
Johnson-Dix, 54 F.3d 1295, 1304-05 (7th Cir. 1995) (noting
that it is improper for prosecutor to vouch for government
agent by speculating that he would not risk his career by
testifying falsely).
  But even accepting that some of the prosecutor’s com-
ments were improper, the prosecutorial misconduct claim
fails at the prejudice stage. Though Washington did not
have a chance to rebut and that weighs in his favor, the
remaining factors all weigh heavily against him. The pros-
ecutor did not misstate the evidence or implicate specific
12                                              No. 04-2015

rights of the accused. Moreover, the trial court instructed
the jury that the arguments of counsel are not evidence,
which mitigates the potential that the jury relied on im-
proper argument by counsel. United States v. Andreas, 216
F.3d 645, 675 (7th Cir. 2000). Finally, like most prosecuto-
rial misconduct claims, Washington’s claim founders in the
face of the strong evidence of his guilt. Tape recordings,
whether video or audio, are powerful evidence of guilt, and
the government introduced videotapes of the two drug
transactions described in the indictment. The tapes were
corroborated by the testimony of Daryle and the testimony
of the government agents that conducted the sting.
Fullerton and Dysart confirmed that Washington was a
crack dealer in Champaign. Washington, who was the only
defense witness, took the stand, admitted that it was him
on the tape, that he was familiar with crack, and that the
videotape showed drug transactions, but denied actually
selling crack to Daryle. His improbable story was that
Meechie retrieved crack cocaine from his mouth to sell to
Daryle on one occasion, and that Daryle actually sold crack
to him on the other occasion. Both scenarios are difficult to
square with the videotape recording and the testimony of
the other witnesses. The jury returned with a conviction on
both counts after only 34 minutes of deliberation. The over-
whelming evidence of guilt in this case eliminates any
lingering doubt that improper comments by the prosecutor
prejudiced Washington.


C. Sentencing
  Washington’s 420-month sentence was driven by the
district court’s determination that prior convictions for
crimes of violence and controlled substance offenses quali-
fied him as a career offender under U.S.S.G. § 4B1.1.
Washington objects to his sentence on the basis of the Sixth
Amendment principles explained in United States v. Booker,
No. 04-2015                                                13

125 S.Ct. 738 (2005) and its precursors. According to
Washington, the judge erred by making a series of factual
findings at sentencing that enhanced his sentence beyond
what he admitted or the jury found. He maintains that his
conviction only supported a base offense level of 26, 11
levels below where the judge ultimately sentenced him.
Washington forfeited this argument by not bringing it to
the district judge’s attention at sentencing. Consequently,
we may correct an error only if Washington demonstrates
that it was plain error under Rule 52(b) of the Federal
Rules of Criminal Procedure. United States v. Olano, 507
U.S. 725, 734-35 (1993).
   Washington’s argument ignores the Supreme Court’s
holding in Almendarez-Torres v. United States, 523 U.S. 224
(1998) that prior convictions need not be proven to a jury
beyond a reasonable doubt, a holding that was left undis-
turbed by Booker. Booker, 125 S.Ct. at 756 (“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 a jury beyond a
reasonable doubt.”) (emphasis added). Nor is the Supreme
Court’s recent decision in Shepard of any assistance to
Washington because he admitted at sentencing that he and
his attorney had reviewed and discussed his presentence
report, which recommended sentencing him as a career
offender, and had no objections. Sentencing Tr. 685-87;
United States v. Shepard, 125 S.Ct. 1254 (2005) (limiting
the sources that sentencing judges can consider when con-
sidering issues related to prior convictions). Nonetheless, as
the government conceded at oral argument, Washington is
entitled to a limited remand pursuant to the procedure
explained in Paladino because “the mere mandatory
application of the Guidelines—the district court’s belief that
it was required to impose a Guidelines sentence— consti-
tutes error.” United States v. White, 406 F.3d 827, 835 (7th
14                                           No. 04-2015

Cir. 2005). We will vacate and remand the case for
resentencing if the judge states that he would have given
Washington a different sentence had he known that the
guidelines were advisory. Id. If, on the other hand, the
judge states that he would reimpose the same sentence even
under an advisory sentencing regime, we will affirm the
original sentence provided that it is reasonable. Id.


                    III. Conclusion
  For the reasons stated herein, we AFFIRM Washington’s
conviction and order a LIMITED REMAND with respect to his
sentence.


A true Copy:
      Teste:

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




                   USCA-02-C-0072—8-9-05
