                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3015

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

E XIE T ATUM, JR., also known as
E RIC T ATUM,
                                           Defendant-Appellant.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 06 CR 231—Rudolph T. Randa, Chief Judge.



     A RGUED A PRIL 7, 2008—D ECIDED N OVEMBER 24, 2008




  Before R IPPLE, W ILLIAMS, and SYKES, Circuit Judges.
  W ILLIAMS, Circuit Judge. Exie Tatum was convicted
of various drug and weapons charges. On appeal, he
claims that the district court erred by admitting three
baggies of cocaine recovered during his booking because
the government did not lay a proper foundation for
the admission of the evidence. We find that the district
did not abuse its discretion by admitting the evidence
because the government laid a proper foundation and
2                                               No. 07-3015

any gaps in the chain of custody were minimal. Therefore,
we affirm Tatum’s convictions.


                    I. BACKGROUND
  Tatum was indicted for possession with intent to dis-
tribute controlled substances in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(c); possession of a firearm in
furtherance of a drug-trafficking crime in violation of
18 U.S.C. § 924 (c)(1)(A)(i); and being a felon in possession
of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The testimony at Tatum’s two-day trial
focused on drugs and paraphernalia that police officers
recovered from Tatum’s residence and from his person
after his arrest. The items recovered from Tatum’s resi-
dence included numerous controlled substances (cocaine,
heroin, marijuana, as well as prescription drugs), packag-
ing materials, a common cutting agent for cocaine,
digital scales, glass beakers with white residue, cell
phones, a gun, and large amounts of cash. Witnesses at
the trial included Milwaukee Police Department (“MPD”)
Detective Mark Wagner, the officer who recovered many
of the foregoing items and inventoried all of the evidence
in the case; a former MPD officer named Michael Capati,
who booked Tatum the night he was arrested; and Sandra
Koresch, a forensic chemist from the Wisconsin state
crime lab.
  Capati testified that he was the booking officer at the
MPD’s downtown administration building on the night of
Tatum’s arrest. He was in charge of searching male prison-
ers and “bagging” property recovered from them. Capati
testified that he recovered a clear plastic baggie from
No. 07-3015                                              3

Tatum’s left pajama pocket. Once this evidence was
recovered, he stated that he passed it off to the detective
or officer responsible for the arrest. However, on cross-
examination, Capati admitted that he reviewed another
officer’s report prior to testifying and, while he recalled
that Tatum was wearing pajamas underneath his pants,
he had no independent recollection of recovering the
drugs from Tatum. During his testimony, Capati also
was never asked to identify any drug exhibits.
  Detective Wagner and another detective inventoried
the narcotics recovered from Tatum’s person. The
evidence was put into a large brown envelope with self-
sealing locks, secured in a vault, and eventually given
to the crime lab for testing. At trial, Detective Wagner
identified the brown envelope, but he was not asked to
identify any of its contents. Furthermore, he could not
independently recall inventorying the drugs, and the
government refreshed his recollection with the MPD
Narcotics inventory. Koresch, the crime lab technician,
identified the envelope and testified about the tests that
she ran on its contents. These tests revealed that the
drugs in the envelope consisted of 4.024 grams of crack
cocaine. After Koresch completed her testimony, the
government moved to admit the narcotics recovered
from Tatum during booking, which were marked for trial
as exhibits 68, 69, and 70.
  Tatum objected to the admission of these exhibits on the
ground that the government did not lay a proper founda-
tion. According to Tatum, Wagner did not personally
recover the drugs. Moreover, Capati, who testified that
he recovered the drugs, was not asked whether he could
4                                             No. 07-3015

identify the exhibits and had no independent recollec-
tion of recovering the drugs from Tatum. Tatum further
argued that the state crime lab technician did not see the
drugs until months after they allegedly were recovered
from him during booking. Tatum maintained that these
gaps in the chain of custody represented a fatal flaw that
prevents the government from using exhibits 68, 69, and
70 as part of its case. The district court, after hearing
arguments, overruled this objection. The court ruled that
the exhibits were admissible because the defendant’s
chain of custody challenge went to the weight of the
evidence, and not its admissibility.
  Tatum was convicted on all charges. The presentence
investigation report (“PSR”) converted the various con-
trolled substances into a marijuana equivalent of approxi-
mately 820 kilograms and concluded that Tatum had an
offense level of 30, which yielded a sentencing range of
151 to 188 months for the drug count. The district court
sentenced Tatum to 151 months on counts one (drug
distribution) and three (felon in possession) to run con-
currently, and 60 months on count two (firearm to
further drug trafficking) to run consecutively. Tatum
appeals.


                      II. ANALYSIS
    A. The district court did not abuse its discretion by
     admitting the crack cocaine into evidence.
  On appeal, Tatum claims the district court abused its
discretion by admitting exhibits 68-70 because no
witness identified and authenticated the drug exhibits.
No. 07-3015                                                5

We review the district court’s evidentiary rulings for an
abuse of discretion. United States v. Luster, 480 F.3d 551,
556 (7th Cir. 2007). “Because we give great deference to
the trial judge’s evidentiary rulings, we will not reverse
unless the record contains no evidence on which the
trial judge rationally could have based its decision.”
United States v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007).
  Under Rule 104(a) of the Federal Rules of Evidence,
“preliminary questions concerning the admissibility of
evidence shall be determined by the court,” and “such
matters must be established by a preponderance of proof.”
United States v. Thomas, 294 F.3d 899, 904 (7th Cir. 2002)
(internal quotations omitted). Physical exhibits may be
admitted so long as they are in “substantially the same
condition as when the crime was committed.” United States
v. Scott, 19 F.3d 1238, 1245 (7th Cir. 1994) (internal quota-
tions omitted). In making the admissibility determination,
the district court employs a “presumption of regularity”
and assumes that the government officials who had
custody of the exhibits discharged their duties properly.
The government does not need to prove a “perfect” chain
of custody, and any gaps in the chain “go to the weight
of the evidence and not its admissibility.” Id.
  Here, the government laid a proper foundation for the
admission of the three exhibits of crack cocaine. Tatum
maintains that Detective Wagner, who inventoried the
drugs, could not independently recall that he did so;
however, the government was entitled to refresh his
recollection during his testimony with the inventory
sheet that he prepared at the time of the incident. See
6                                                No. 07-3015

Fed. R. Evid. 803(5). Moreover, Capati testified that
evidence recovered from a suspect is bagged and passed
off to the conveying officer, and Wagner identified, at trial,
the brown paper bag (also referred to as a “narcotics
envelope”) that contained the drugs recovered from
Tatum. Under the presumption of regularity, the
district court was entitled to presume that the bag con-
tained the drugs that had been removed from Tatum
during booking. That Wagner was not asked to identify
the drugs contained within the bag does not persuade us
that these were not the drugs recovered from Tatum. The
crime technician identified the contents of the brown
paper bag as containing crack cocaine, and there is no
evidence that its contents had been altered, especially
since the bag had self-sealing locks to prevent tampering
prior to transport to the crime lab. See Thomas, 294 F.3d
at 905 (“merely raising the possibility (however hypotheti-
cal) of tampering is not sufficient to render evidence
inadmissible”) (internal quotations omitted).
  Even if there is a gap in the chain of custody because
the booking officer could not remember recovering the
drugs from Tatum, the booking officer did testify that it
was his routine to give any drugs found on a suspect’s
person to the arresting officer—in this case, Wagner, who
testified that he inventoried the drugs. See Scott, 19 F.3d at
1244-45 (applying the presumption of regularity where
there was a minor gap in the chain of custody). Therefore,
the failure of the booking officer to recall specifically
recovering evidence from Tatum does not render the
drugs inadmissible. Cf. Thomas, 294 F.3d at 905 (“When
chain of custody is called into question without any
No. 07-3015                                              7

evidence of tampering, and if the tapes were in official
custody at all times, a presumption arises that the tapes
were handled properly.”).
   In any event, if there was an error admitting the drugs,
it was harmless. Even if the 4.024 grams of crack cocaine
that were taken from Tatum following his arrest are
inadmissible, the overall drug quantity amount drops
down to a marijuana equivalent of approximately 740
kilograms. That reduction is not enough to alter Tatum’s
current guidelines range of 151 to 188 months. See
United States v. Frith, 461 F.3d 914, 918 (7th Cir. 2006)
(district court’s error in determining the amount of the
loss for defendant’s securities law violations was
harmless because even if that erroneous amount was
excluded from the loss calculation, defendant’s offense
level remained the same). We find that the government
laid a proper foundation for the drugs through the testi-
mony of Wagner and the crime lab technician; that any
gaps in the chain of custody were likely minimal; and the
district court did not abuse its discretion by admitting
the drugs.


 B. Tatum is free to file a § 3582(c)(2) motion in the
    district court.
  Tatum seeks a remand to pursue retroactive application
of the revised crack guideline to his sentence. Effective
November 1, 2007, the United States Sentencing Commis-
sion reduced offense levels in most crack cocaine cases by
two levels. See United States Sentencing Commission
Guidelines Manual, Supplement to Appendix C, 226-31
8                                               No. 07-3015

(2007) (Amendment 706). The Commission then made
the changes retroactive, effective March 3, 2008, which
permitted defendants to rely on the amended crack
guidelines to seek sentence reductions under 18 U.S.C.
§ 3582(c)(2). See Supplement to the 2007 United States
Sentencing Guidelines Manual at 1-4 (Mar. 3, 2008)
(U.S.S.G. § 1B1.10(c)). The government contends that we
need not vacate and remand Tatum’s sentence because
the recent guideline amendments do not render Tatum’s
sentence erroneous, and it would be more appropriate
for Tatum to file a motion in the district court rather
than challenge his sentence on appeal.
  We agree with the government that the proper vehicle
for Tatum to seek retroactive relief under the revised
guideline is a motion to the district court pursuant to
§ 3582(c)(2). We need not consider whether Tatum can
receive any relief under Kimbrough v. United States, 128
S. Ct. 558, 169 L.E.2d. 481 (2007), because during oral
argument defense counsel stated he was not seeking
relief under Kimbrough in this appeal. We did not decide
in United States v. Taylor, 520 F.3d 746 (7th Cir. 2008), nor
do we today, whether a defendant may receive the
benefit of Kimbrough in a § 3582(c)(2) motion to the
district court.


                   III. CONCLUSION
 For the reasons set forth above, we AFFIRM the judg-
ment of the district court.

                           11-24-08
