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

No. 05-1860
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

SYLVANUS T. WILLIAMS,
                                         Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
    for the Northern District of Indiana, Fort Wayne Division.
        No. 02 CR 115—Theresa L. Springmann, Judge.
                         ____________
  ARGUED FEBRUARY 12, 2007—DECIDED AUGUST 1, 2007
                   ____________


 Before KANNE, ROVNER, and SYKES, Circuit Judges.
  KANNE, Circuit Judge. Sylvanus Williams was ar-
rested after police found a stolen gun in his car and
marijuana in a bag that he had left behind in a store. A
search of his car led to additional drug-related charges
being brought by the United States, and after two years
of pre-trial wrangling a jury convicted him on three
counts. He raises four issues on appeal: he challenges the
admission of certain evidence which he argues was seized
in violation of his Fourth Amendment rights, he argues
that his right to due process of law was denied, he chal-
lenges the district court’s sentence, and he challenges
the constitutionality of the United States Sentencing
2                                               No. 05-1860

Guidelines’ distinction between cocaine base and cocaine
powder. Because we find no error, we affirm.


                     I. BACKGROUND
  On November 17, 2002, Williams was at the Dolly
Madison Thrift Bakery in Fort Wayne, Indiana. He had
been in the store for about ten minutes, and his behavior
had made the store clerk uncomfortable enough that she
triggered a silent alarm. She believed at the time that
Williams was about to rob her, but the parties all agree
now that there is nothing in the record to prove that he
was actually getting ready to rob the bakery that day. But
it turns out that he was carrying marijuana and quite a
bit of cash on his person, and out in the parking lot his
car contained crack cocaine, powder cocaine, a digital
scale, a stolen handgun, and yet more cash.
  The police arrived in response to the clerk’s silent alarm,
and she indicated that Williams was the person whose
behavior had made her nervous. The officers stopped
Williams and patted him down for weapons in accordance
with Terry v. Ohio, 392 U.S. 1 (1968). They found no
dangerous items, but did find $789 in his pants pockets.
The parties agree that Williams identified himself by
name to the officers, and gave them his license to cor-
roborate his identity.
  The officers’ version of events is that one of them, Officer
Taylor, recognized Williams’s name from earlier in the
day. Taylor would later testify that about forty-five
minutes before the events at the bakery, an Oldsmobile
had pulled in front of him and then made a left turn
without a signal. He also testified that he had run a
check of the car’s license plates, and the check had re-
turned Williams as the owner of the car, a picture of
Williams, and information that the car was not stolen and
No. 05-1860                                                3

that there were no warrants outstanding for Williams.
Because he was on his way to a shift meeting, and because
the traffic infraction was minor, he decided not to stop
Williams at that time. But Williams’s name stuck in his
mind when he encountered Williams again within an
hour. Taylor later testified that he became suspicious
when Williams then denied having driven to the store,
denied having been driving the Oldsmobile that Taylor
had seen earlier in the day, and claimed that he had
driven his girlfriend’s Ford Taurus to a nearby mall and
had walked to the bakery.
  The officers testified that another customer soon told
them that Williams had driven an Oldsmobile to the
bakery, and that the car was out of sight behind a large
truck. Williams denied that the car was his, but Taylor
recognized the car as being the same one that he had
run a check on earlier in the day. Taylor’s testimony was
that he went to the car and looked into the window and
saw a part of a gun under the front seat, and that the
driver’s door was ajar. He opened the door, took the gun
out of concern for public safety, and checked the serial
number of the gun. It came back as stolen.
  Meanwhile, another officer had gone into the store to
look at the surveillance video. The officers testified that
the video showed Williams behaving in a suspicious way.
After buying his toaster pastries, he was about to leave
the store. For some reason (we might infer that he saw
the police arriving, but his motive is subject to specula-
tion at this point) he retreated into the store to a corner
where he was out of sight of the store’s camera and then
re-emerged without his bag of bakery goods. A search of
the store ensued, and his bag was discovered. In it, in
addition to the baked goods that he had just purchased,
was a quantity of marijuana.
  Williams was arrested. He refused to consent to a
search of the Oldsmobile, so the officers called for a canine
4                                               No. 05-1860

search of the exterior of the car. When the dog alerted to
the presence of contraband, the car was impounded and a
search warrant was issued to search the interior of it.
Upon executing the search warrant, officers discovered
the cocaine, digital scale, and additional money in the
glove box.
  Facing drug and weapons charges based on what was
found in the car, Williams moved to suppress all evidence
seized from the car as the fruit of an improper arrest.
After wrangling about whether Williams had standing to
challenge the admission of the evidence—the government
contends that he had disavowed any property interest
in the car—the district court conducted a suppression
hearing and the parties submitted briefs on the merits.
Williams argued that after the officers had determined
that he was unarmed and that neither a robbery nor an
attempted robbery had occurred, their justification for
temporarily detaining Williams had dissipated. He argued
that the further questioning exceeded the scope of the
Terry stop. He also argued that the search of the vehicle
was conducted without a warrant.
  The government contended that Williams’s evasive
answers to the officers’ questions and the information that
they received from other store patrons only increased
their suspicions, rather than dissipating them. The
government argued that the stolen gun was found in plain
view through the window of the car, and that the stolen
gun in his car gave them probable cause to arrest Wil-
liams. They also noted that the search of the car which
resulted in the seizure of the cocaine and digital scale had
been conducted pursuant to a search warrant that had
been obtained after the canine alerted to the car.
  The district court denied the defendant’s motion to
suppress. The court found that the police were within the
scope of their Terry stop up until the time that the officers
No. 05-1860                                                5

had probable cause to arrest Williams based on finding
the stolen gun in plain view in Williams’s car and the
marijuana in the store. The district court specifically noted
that either the stolen firearm or the discovered marijuana
was sufficient to give the officers probable cause. R. 45
at 10.
   Williams then fired his appointed attorney. As pre-trial
motions progressed, Williams grew increasingly dissatis-
fied with his new counsel, and fired his second appointed
attorney. The court appointed his third counsel. Williams,
pro se, filed a second motion to suppress. The court struck
his pro se motion to suppress because Williams was
represented by counsel. See United States v. Gwiazdzinski,
141 F.3d 784, 787 (7th Cir. 1998) (“A defendant does not
have an affirmative right to submit a pro se brief when
represented by counsel.”). His third appointed counsel
filed a motion to reconsider the original motion to sup-
press. In that motion, Williams’s third counsel argued
that Williams’s first counsel had failed to present evidence
that would have refuted the government witnesses’
testimony about the events at the store. To support the
motion to reconsider, Williams included a report from a
defense investigator that purports to be a time-line of the
store surveillance videotape. The investigator’s report
pointed to what Williams claimed were inconsistencies
between the videotape and the officers’ testimony at the
suppression hearing. Although many of the inconsistencies
were minor, two observations are worth noting here: (1)
that the videotape showed Williams being led away with
his hands handcuffed behind his back long before the
officers claimed that they had probable cause to arrest
him, and (2) that the time from the police arriving at the
store to the discovery of the marijuana was longer than the
officers had testified to at the suppression hearing.
  The district court denied the motion to reconsider, and
noted that none of this changed the court’s decision with
6                                              No. 05-1860

respect to whether the detention and investigation ex-
ceeded the scope of the Terry stop, and also reiterated that
the discovery of the gun gave the police independent
probable cause to arrest Williams regardless of how long
it had taken them to find the marijuana. R. 80 at 6. The
court did not specifically address Williams’s new conten-
tion that the videotape showed him being led away in
handcuffs early in the course of the Terry stop. But the
court did note that much of Williams’s third lawyer’s
memorandum was couched in terms of constitutionally
ineffective assistance of counsel (on the part of the first
lawyer) for failing to raise these issues during the first
motion to suppress. The district court, in denying the
motion to reconsider, assured Williams that even if these
items had been brought to the court’s attention on the
first motion, its decision would not have changed and
that Williams was not prejudiced by his first counsel’s
failure to mention these inconsistencies. R. 80 at 5-8.
Williams now denies that the motion to reconsider was
ever based on allegations of ineffective assistance of
counsel, Oral Arg. Tr. at 18:10 to 18:25, but the record
makes it clear why the district court felt it necessary to
consider questions of ineffective assistance. In the motion
to reconsider, even after clarifying that an eventual
ineffectiveness claim would likely be raised under 28
U.S.C. § 2255, Williams had argued that “by granting this
motion for reconsideration, this Court can cure any
ineffectiveness of prior counsel by allowing the issues
raised in the Motion to Suppress to be fully and fairly
litigated, notwithstanding the failure of prior counsel to
present relevant and significant evidence.” Def. Mot. for
Reconsideration, May 16, 2004, at 6.
  After a couple more months of pre-trial motions, Wil-
liams filed a second motion to suppress, this time on
different grounds, and fired his third attorney. The
purpose of this second motion to suppress (or third, if we
No. 05-1860                                              7

were to count the pro se motion) was to preserve a consti-
tutional error in the event that a pending case in the
Supreme Court would have invalidated the canine sniff of
his car. That motion was withdrawn a few weeks later by
Williams’s fourth appointed attorney. But not to be left
out, the fourth attorney filed a new motion to suppress.
Specifically, he made the following five arguments. First,
he argued that Williams was interrogated in violation of
Miranda v. Arizona, 384 U.S. 486 (1966), and that all
statements he made should be suppressed. Second, he
argued that the police were “not justified” in searching
Williams’s car. Third, he argued that the plain view
doctrine did not apply to the gun that Taylor saw through
the car window. Fourth, he repeated the previous argu-
ments that the police had exceeded the limits of the Terry
stop. Fifth, he challenged whether there was probable
cause for the warrant that eventually led to the search of
the car and demanded a Franks hearing. See Franks v.
Delaware, 438 U.S. 154 (1978).
  The court noted that the third motion to suppress “has
the ring of the second motion to reconsider.” R. 118 at 1.
As to any arguments that the defendant had made in the
past, the court noted that “[t]he Defendant’s repetition,
although persistent, offers nothing to this Court that
would enable it to reconsider its denial of the Defendant’s
original Motion to Suppress, and its reaffirmation in the
Order denying the Defendant’s Motion to Reconsider.” Id.
at 2. The court then addressed the Miranda argument,
dispensing with it easily because Williams had failed to
refer to anything in the record to show that he made any
incriminating statements while subject to a custodial
interrogation. Id. at 2-3. Likewise, the court noted that
Williams had failed to cite to any fact that would support
his argument that the court should conduct a Franks
hearing. Id. at 3.
8                                              No. 05-1860

  After an unsuccessful attempt to have the district judge
recuse herself (accompanied by the occasional letter
from Williams to the Chief Judge of the district alleging
that the district court was biased against him) the case
finally went to trial. A jury found Williams guilty of: (1)
possessing cocaine base (crack) with intent to distribute,
21 U.S.C. § 841(a)(1); (2) possessing cocaine (powder) with
intent to distribute, 21 U.S.C. 841(a)(1); and (3) being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The
court sentenced Williams to concurrent terms of 189
months’ imprisonment on the drug counts and a concur-
rent term of 120 months’ imprisonment on the weapon
charge.
   On appeal, Williams’s sixth attorney (we granted Wil-
liams’s motion to discharge his fifth lawyer, also) makes
four arguments: he repeats the argument that the district
court should have suppressed the evidence, he argues
that the suppression hearings and the district court’s
actions violated the Fifth Amendment, he argues for the
first time that his sentence is unconstitutional because
it is based on facts not found by a jury beyond a reason-
able doubt, and he argues that the distinction between
powder cocaine and cocaine base in the United States
Sentencing Guidelines is unconscionable and unconstitu-
tional.


                      II. ANALYSIS
    A. The Fourth Amendment Claim
  Williams argues that he was arrested without probable
cause shortly after the officers arrived, and that all
evidence seized thereafter must be suppressed. We observe
that Williams does not repeat his previous argument that
the plain view doctrine did not apply to the stolen gun in
the car, as well he should not: “[t]here is no legitimate
No. 05-1860                                               9

expectation of privacy . . . shielding that portion of the
interior of an automobile which may be viewed from
outside the vehicle by either inquisitive passersby or
diligent police officers.” Texas v. Brown, 460 U.S. 730, 740
(1983). Police may take weapons from a car in the interest
of public safety when they have been left lying about
unattended. United States v. Wilson, 2 F.3d 226, 233 (7th
Cir. 1993) (citing Cady v. Dombrowski, 413 U.S. 433, 448
(1973); United States v. Ware, 914 F.2d 997, 1000-01 (7th
Cir. 1990)).
  This narrows the issue for us on appeal. The parties
agree that the police had reasonable suspicion to tempo-
rarily detain Williams at the outset of the encounter. The
discovery of a stolen handgun inside the car that Williams
owns and was seen driving forty-five minutes earlier, along
with his subsequent denial of ownership of the car,
established probable cause to arrest him. See United States
v. Cipriano, 765 F.2d 610, 612 (7th Cir. 1985) (finding
probable cause to arrest a defendant who denied any
connection with luggage containing contraband when
other evidence established that there was such a connec-
tion). The question is whether anything in the intervening
time period amounts to a violation of Williams’s rights
under the Fourth Amendment. When reviewing an appeal
of a motion to suppress, we review questions of law de
novo and questions of fact for clear error. United States v.
Hagenow, 423 F.3d 638, 641-42 (7th Cir. 2005).
  Confronted with the motion to reconsider, the district
court specifically gave Williams the benefit of the doubt
about whether the videotape (and therefore, the marijuana
discovered after the officers viewed it) played any role in
the officers’ development of probable cause to arrest him.
R. 80 at 6. The court found, based on the newly presented
evidence, that over the course of four or five minutes the
police developed probable cause to arrest Williams. Id.
10                                              No. 05-1860

Although “four or five minutes” might be a shade on the
low end, this estimate does fit very closely with the time-
line as Williams now claims it to be. Williams was ques-
tioned for approximately two and one-half minutes before
the police moved him to the nearest patrol car. Appellant’s
Br. at 19. According to Williams’s videotape time-line,
another customer pointed out the location of Williams’s
Oldsmobile less than one minute later, or between three
and four minutes after the police first stopped Williams. If
the district court credited Taylor’s testimony, it was only
a matter of minutes from the time that the Oldsmobile
was pointed out to them that he had retrieved the gun
that was lying in plain view. There is ample evidence in
the record to support a conclusion that the police had
probable cause to arrest Williams for possession of a stolen
firearm between four and ten minutes after their first
contact with him.
  However, Williams maintains that the store surveillance
videotape shows him being taken away with his hands
handcuffed behind his back just two and one-half minutes
after the police first stopped him. Appellee’s Br. at 19. This
is an argument that he first made during the motion to
reconsider the first motion to suppress. The government’s
witness at trial, Taylor, testified that Williams was not
handcuffed at that time, but was being placed into a
police car so that the officers could investigate his seem-
ingly deceptive answers about the car that Taylor had
seen him driving earlier in the day. In addition, the
government cites a series of cases holding that hand-
cuffing him would not necessarily equate to arresting him.
Appellee’s Br. at 18 n.10.
  Williams argues that if the videotape actually showed
him handcuffed at that time, we should question whether
he was unlawfully arrested and the evidence that fol-
lowed from that arrest would need to be suppressed. But
we need not decide that issue of law: we have reviewed the
No. 05-1860                                              11

videotape, and it does not support Williams’s view of the
facts. The tape does not show whether Williams’s hands
were handcuffed, and to the extent that any details can be
made out, the tape appears to show that his hands were
in front of his body, not behind his body. Of course,
whether his hands were in front of his body or behind his
body would not be dispositive on the question of whether
he was arrested without probable cause, but it goes to the
question of the reliability and credibility of the evidence
that was presented to the district court. On the question of
whether Williams was led to the police car with his
hands handcuffed behind his back, the district court had
to weigh Taylor’s testimony and the investigator’s conclu-
sion. The videotape itself does not contradict Taylor’s
testimony, but it does appear to contradict at least one
aspect of Williams’s version of events. It appears that the
district court weighed the evidence, reasonably made
what credibility determinations were necessary, and did
not improperly credit any “exceedingly improbable testi-
mony.” United States v. Adamson, 441 F.3d 513, 519 (7th
Cir. 2006).
  This cannot be the end of the Fourth Amendment
analysis, however. Even if Williams was not handcuffed
when he was moved to the police car, we must consider
whether the officers’ actions violated the Fourth Amend-
ment in any other way during the period of time after they
arrived and before they had probable cause to arrest
Williams for the stolen gun or the marijuana. Williams
repeats the argument here that he has made since the
beginning: that even though the police had reasonable
suspicion to temporarily detain him under the Terry
standard when they arrived, their actions exceeded the
legitimate scope of the stop and that this tainted the
evidence that they seized.
  Williams argues that once he had identified himself to
the officers and they determined that he did not have any
12                                              No. 05-1860

weapons, they no longer had a reasonable suspicion that
he was engaged in criminal activity and they were not
justified in detaining him any longer. We disagree. The
law requires only that the officers have a “reasonable
suspicion that criminal activity may be afoot” in order to
temporarily detain somebody. United States v. Arvizu, 534
U.S. 266, 273 (2002) (quoting United States v. Sokolow,
490 U.S. 1, 7 (1989) (internal quotation omitted)). Review-
ing courts must look at the totality of the circumstances
to determine if the officer had a particularized and objec-
tive basis for the suspicion. Id. Even if we assume that an
armed robbery had been ruled out by this point in the
events, the police officers were confronted with a person
who denied owning and driving the Oldsmobile that one of
the officers had seen him driving less than one hour
earlier.
  Although the parties dispute exactly how many minutes
elapsed between the initial Terry stop and the discovery
of the stolen gun, the tape and the testimony make clear
that the police quickly moved to investigate the conflict-
ing stories of Williams and the store customer and it was
a matter of minutes from the initial contact to the develop-
ment of probable cause. During that time, even when
confronted with the fact that two people had seen him
driving the Oldsmobile, Williams continued to deny that
it was his. This gave the officers further grounds for
suspicion. Then, having found the Oldsmobile in the
parking lot, the officers could also have found it suspicious
that upon their arrival Williams had previously been
trying to leave the parking lot on foot. Appellant’s Br. at 4.
In the totality of the circumstances, we believe that the
officers acted diligently to investigate a suspicious story
and that their decision to detain Williams was sup-
ported by reasonable suspicion throughout the encounter
from the time that the clerk identified him to the time that
the stolen gun was found. Williams, perhaps, was simply
No. 05-1860                                               13

unlucky: the only officer in Fort Wayne that day who
might reasonably have doubted his story about driving
his girlfriend’s car was the very one who responded to
the silent alarm. Taylor’s reasonable suspicions quickly
unraveled Williams’s story.
   Williams argues that we should measure the reasonable-
ness of the officers’ actions against the time it took them
to discover the marijuana, not the stolen gun. Appellant’s
Br. at 18. At the suppression hearing, Taylor testified that
when Williams was eventually arrested it was for the
marijuana that was found in the store. Recall that the
drugs which eventually formed the basis for the federal
charges against him were not found until after the search
warrant was issued for the car, or about three days after
the events at Dolly Madison. Williams was not charged
with a crime in relation to the gun until over a month
later, and even then the charges were that he was carrying
the gun without a permit, not that he possessed a stolen
gun. Appellant’s Reply Br. at 7. The officers’ stated reason
for arresting Williams was possession of marijuana. The
officers’ testimony was that the marijuana was not
found until after they viewed the videotape of his activ-
ities inside the store. By this view of the facts, the mari-
juana could not have been discovered for at least twenty
minutes, or perhaps as long as one hour, and the inter-
vening time between stopping him and the existence of
probable cause was excessive.
  But Williams’s argument here is foreclosed by Devenpeck
v. Alford, 543 U.S. 146 (2004). In Alford, a civil suit under
42 U.S.C. § 1983 turned on whether the arresting officers
had probable cause to arrest Alford. The Ninth Circuit
had reversed judgment in favor of the officers, rejecting
the officers’ claims that even though they incorrectly
cited one crime as the grounds for arrest, they actually
already had independent probable cause to arrest Alford
for other crimes. Id. at 151-52. Like here, in Alford the
14                                               No. 05-1860

other crimes were never charged. Id. at 150-51. The
Supreme Court reversed the Ninth Circuit and held that
as long as the officers had probable cause to arrest Alford,
it was irrelevant that they had eventually charged him
with different crimes. The Court held that its Fourth
Amendment precedents:
     make clear that an arresting officer’s state of mind
     (except for the facts that he knows) is irrelevant to the
     existence of probable cause. That is to say, his sub-
     jective reason for making the arrest need not be the
     criminal offense as to which the known facts provide
     probable cause. As we have repeatedly explained, the
     fact that the officer does not have the state of mind
     which is hypothecated by the reasons which provide
     the legal justification for the officer’s action does not
     invalidate the action taken as long as the circum-
     stances, viewed objectively, justify that action.
Id. at 153 (internal citations and quotations omitted).
  Such is the case here. Once the officers knew that they
had retrieved a stolen gun from Williams’s car, they had
probable cause to arrest him. Once they had that prob-
able cause, it is irrelevant that their investigation eventu-
ally found evidence of other crimes, that he was originally
charged with those other crimes, or that the those crimes
were charged based on an investigation that dragged out
longer than was warranted by their original reasonable
suspicion.


  B. Fifth Amendment Claim
  Williams also presses another argument: that the
procedures below were so flawed that he was denied due
process of law. U.S. CONST. amend V. The remedy that
Williams seeks is that we remand the case to the dis-
No. 05-1860                                              15

trict court for yet another proceeding on a new motion to
suppress and a new trial.
  Williams seems to have three major concerns with the
procedures below. He argues that the district court was
wrong to consider any of his arguments from the perspec-
tive of ineffective assistance of counsel. He faults the
district court for not conducting an entirely new suppres-
sion hearing and cites to United States v. Regilio, 669 F.2d
1169 (7th Cir. 1981), in support. Finally, he argues that
Taylor’s testimony at the original hearing was so full of
perjury that it was “wholly discredit[ed]” by other evi-
dence. Appellant’s Br. at 20. We held above that the
district court’s consideration of questions of ineffective
assistance was reasonable given that Williams’s own
briefs before the district court raised that issue. And as
we held above, the district court’s decision to deny the
motion to suppress was correct. Given these circum-
stances, his choice of remedy (another hearing on a mo-
tion to suppress) would do him no good unless Taylor’s al-
leged perjury were not part of the new proceedings before
the district court.
  We will assume, without deciding, that Williams is
correct that he is entitled to a new hearing. What would
that new hearing give him? As long as the district court
credited Taylor’s testimony about the amount of time that
elapsed between the time that the other customer
showed the officers the Oldsmobile and the time that he
discovered the stolen gun, then the officers’ actions were
within the scope of their legitimate Terry stop and the
seized evidence should be admitted. Williams’s point is
that the discrepancies in Taylor’s testimony should lead
the court to not credit his testimony about that time-line.
  He bases his accusations on the store surveillance
videotape and on disparities between Taylor’s testimony at
trial and his testimony at the suppression hearing. He
16                                              No. 05-1860

alleges that the perjury concerned the duration and scope
of his pre-arrest detention as well as the time that the
other store customer pointed the police to Williams’s
Oldsmobile. Although there were “other inconsistencies” in
his testimony, Williams argues that these three examples
“profoundly demonstrate” that Taylor lied under oath.
Appellant’s Br. at 20.
  We are not persuaded. Taylor testified that he arrested
Williams for possession of marijuana about ten minutes
after approaching him. The videotape shows that he
could not have found the marijuana until some time at
least twenty-one minutes after first stopping Williams.
Williams alleged at one point that a full hour had elapsed
before the marijuana was discovered. Taylor was testify-
ing nearly nine months after the events in question, and
Williams provides nothing to suggest that this discrepancy
is a result of a “willful intent to provide false testimony”
rather than “confusion, mistake, or faulty memory.” United
States v. Dunnigan, 507 U.S. 87, 94 (1993) (tracing the
development of the federal “common understanding” of
what constitutes perjury). This disparity does not, as the
appellant urges, “wholly discredit Taylor’s testimony.”
Appellant’s Br. at 20.
  As we noted above, Williams’s contention that he was
handcuffed when first placed in the police car is not
supported (and possibly partially refuted) by the video-
tape. The other inconsistencies that Williams finds,
including the time that the other customer pointed the
officers toward the hidden Oldsmobile, all appear to be
within the scope of normal instances of confusion, mistake,
or faulty memory, and, in any event, many of them do not
rise to the level of material statements. The point of a trial
is to reconcile differing versions of facts in the record. Not
every discrepancy in the record equates to perjury.
  So Williams’s due process argument must fail also. Not
because he was not entitled to another hearing—we leave
No. 05-1860                                               17

that question for a different case. But rather because even
if he were to succeed in getting another suppression
hearing, the district judge would be considering the same
testimony, the same evidence, and the same laws as the
first suppression hearing. Because we held above that the
decision to not suppress the evidence was correct, his
choice of remedy would therefore be fruitless.


  C. Sentencing
  Williams asserts that the district court erred by enhanc-
ing his sentence based upon facts found by the court by a
preponderance of the evidence and not found by a jury
beyond a reasonable doubt. He argues that this is a
violation of the Fifth and Sixth Amendments, as well as
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), Blakely
v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 543 U.S. 220 (2005). He did not make this objec-
tion at his sentencing hearing, waiting instead until this
appeal to join the ranks of the “Booker protesters.” United
States v. Hawkins, 480 F.3d 476, 477-78 (7th Cir. 2007)
(“Because the . . . lawyers either do not read judicial
opinions or do not understand them, or cannot distinguish
a majority from a dissenting opinion, or are ‘in denial,’ or
are ‘Booker protesters,’ they insist that a judge cannot be
allowed to base a sentence on any facts other than those
determined by the jury.”).
  When a defendant fails to raise a Booker argument
before the district court, we review it for plain error only.
United States v. Macari, 453 F.3d 926, 942 (7th Cir. 2006).
The first step in evaluating whether plain error reversal
is warranted is that there be an error. United States v.
Simpson, 479 F.3d 492, 496 (7th Cir. 2007). This inquiry
dies there. The district court properly calculated the
advisory guidelines range, and then considered whether
any factors listed in 18 U.S.C. § 3553(a) warranted a
18                                               No. 05-1860

sentence outside the guidelines range. The court found
that a sentence in the middle of the advisory guideline
range “is sufficient but not greater than necessary, to
comply with the purposes of punishment” in 18 U.S.C.
§ 3553(a)(2). Sent. Tr. at 14. This is exactly what our
precedent requires of the district court, and there was no
error. See United States v. Cunningham, 429 F.3d 673,
675-76 (7th Cir. 2005) (summarizing sentencing proce-
dures post-Booker).
  Finally, the appellant argues that the one hundred-to-
one sentencing ratio for crack versus powder cocaine is
unconscionable and unconstitutional. Whether the ratio
is unconscionable is a matter for Williams to raise with
the legislature. Whether the ratio is unconstitutional is
an argument that was not made at sentencing, so we
review it for plain error. As the appellant concedes, our
circuit precedent is clear that the ratio is not a violation of
the Constitution. See United States v. Miller, 450 F.3d 270,
275 (7th Cir. 2006). There was no error.


                     III. CONCLUSION
  In ruling on the various motions to suppress, the district
court did not make any findings of fact that are clearly
erroneous and did not err on any questions of law. The
district court did not deprive Williams of due process
in violation of the Fifth Amendment. The sentencing
regime in place under Booker remains constitutional,
and the sentencing disparity between crack and powder
cocaine has been considered on numerous occasions by
this court. Accordingly the judgment and sentence of the
district court are AFFIRMED.
No. 05-1860                                        19

A true Copy:
      Teste:

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




               USCA-02-C-0072—8-1-07
