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

No. 04-2787
UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,
                                  v.

ANDREW A. CHAVIS,
                                                Defendant-Appellant.
                            __________
             Appeal from the United States District Court
        for the Northern District of Illinois, Western Division.
             No. 03 CR 50028—Philip G. Reinhard, Judge.
                            __________
   ARGUED SEPTEMBER 7, 2005—DECIDED NOVEMBER 9, 2005
                          ____________


  Before CUDAHY, MANION, and SYKES, Circuit Judges.
  MANION, Circuit Judge. A federal jury convicted Andrew
Chavis on charges of both conspiracy and possession of
crack cocaine with intent to distribute. Chavis appeals,
asserting that his conviction cannot stand because the
district court improperly admitted certain evidence and
failed to give a particular jury instruction. Chavis also
contends, and the government agrees, that he is entitled to
a limited remand in the wake of United States v. Booker,
125 S.Ct. 738 (2005). We affirm Chavis’s conviction but order
a limited remand to the district court for a determination
2                                               No. 04-2787

pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir.
2005).


                             I.
  In November 2002, the DEA began investigating illegal
drug distribution in Rockford, Illinois. This investigation
relied on Robert and Rosa Flemons, both of whom had
pleaded guilty to dealing crack cocaine but had chosen to
cooperate with the government. As part of the cooperation
agreement, the DEA provided the Flemonses with money to
make purchases from suspected drug dealers while the DEA
monitored the transactions.
  On November 14, 2002, Alex “Alley Cat” Thompson
informed the Flemonses that he could supply them with
crack cocaine. After consulting with DEA Agent Doug
Hopkins and receiving marked money, the Flemonses
arranged to purchase two ounces of crack on November 15.
Although the transaction took place and was recorded by
the DEA, Thompson was unable to deliver the full two
ounces of crack. However, the Flemonses did purchase from
Thompson five-eighths of an ounce of crack cocaine for
$620.
  Approximately a week later, on November 21, the DEA
asked the Flemonses to arrange a second buy of crack
cocaine from Thompson. Based on surveillance con-
ducted during the first purchase, the DEA was able to locate
Thompson’s car at his residence. In anticipation of the
second buy, the DEA began surveillance on the car in the
hopes of identifying larger dealers connected to Thompson.
After the Flemonses placed a call to Thompson for another
purchase of drugs, Thompson drove his white Chrysler to
the 700 block of Sixth Avenue.
No. 04-2787                                                  3

  After waiting in his car for several minutes, a second man,
later identified as Frank Jefferson, came from the north side
of the street and entered a parked maroon Buick. According
to Jefferson’s testimony at trial, he had been inside 718 Sixth
Avenue, the residence of Chavis’s girlfriend, getting crack
cocaine from Chavis to give to Thompson. Thompson and
Jefferson drove off in separate cars, but soon reconvened,
with Jefferson giving Thompson the drugs at this time. The
men again left separately, and each went to Capitol Clean-
ers, which the Flemonses owned. There, Thompson supplied
the Flemonses with crack, while Jefferson stayed in his car.
  Again, the Flemonses discovered that Thompson had
not given them the bargained amount of crack, so the
Flemonses gave him $750, less money than originally agreed
upon. Upon discovery of the drug shortfall, Thompson
called Jefferson to inform him of the problem. After the deal
was completed, Thompson met with Jefferson, giving him
the money received from the sale. Jefferson, in turn, gave
the majority of this money to Chavis.
  On November 22, the DEA decided to shut down the drug
conspiracy. To that end, Hopkins instructed the Flemonses
to set up one more drug deal with Thompson. Meanwhile,
the local police continued surveillance on Thompson, who
met and picked up Jefferson in his white Chrysler. At first,
Jefferson had trouble reaching Chavis on Chavis’s cell
phone to tell him that he needed more crack. Jefferson then
stopped by his own house and picked up money in case he
had to buy the drugs from another source. Eventually,
Jefferson connected with Chavis, who informed Jefferson
that he had the necessary drugs for the deal. However,
when Jefferson and Thompson drove to Chavis’s girlfriend’s
house on Sixth Avenue, Chavis was not there. Jefferson
4                                                No. 04-2787

finally set up a meeting with Chavis in a liquor store
parking lot near Capitol Cleaners to obtain the drugs.
  Jefferson and Thompson reached the parking lot first, and
the police continued to observe their activities, watching
them through binoculars. After approximately twenty
minutes, Chavis and his girlfriend, Sidra Moses, pulled
up in Moses’s Oldsmobile. Jefferson then left Thomp-
son’s Chrysler and entered the back seat of Moses’s car.
Detective Robert Veruchi, one of the local police assisting
the DEA’s surveillance, saw Chavis, sitting in the front
passenger seat, appear to give something to Jefferson. After
observing this apparent hand-off, the police then
approached and surrounded the car, ordering the occupants
out.
  When Chavis left the front seat of the car, a cell phone and
a pager dropped onto the ground. Chavis agreed to a police
pat-down, which turned up $1,128 in Chavis’s right front
pocket and $3,525 in his left rear pocket. Police found on
Jefferson a cell phone, crack cocaine, and $1,239 in cash.
DEA Agent Hopkins also discovered a baggie containing
crack cocaine on the floor of the car near where Jefferson
had been sitting. While they were being taken into custody,
Jefferson and Chavis turned on each other, each yelling to
the other: “You set me up.” Once they arrived at the police
station, Chavis shouted to Moses: “Don’t talk. Don’t say
nothing, baby. They got nothing.” Chavis told the police
that Jefferson had handed a bag of cocaine to him in the car,
and that he (Chavis) threw it back at Jefferson just as the
police came up. Chavis was subsequently released, while
Jefferson began cooperating with the authorities, providing
many of the facts and details above. The DEA also examined
the money recovered from Chavis, discovering that Chavis
No. 04-2787                                                  5

possessed 16 of the 19 bills that the Flemonses had used to
purchase crack cocaine on November 21.
  On April 22, 2003, a federal grand jury in the Northern
District of Illinois indicted Chavis for: (1) conspiring with
Alex Thompson and Frank Jefferson to possess with intent
to distribute more than 50 grams of substances contain-
ing cocaine base on November 15; (2) distribution (with
Thompson and Jefferson) of 26.2 grams of substances
containing cocaine base on November 21; and (3) possession
with intent to distribute more than 50 grams of substances
containing cocaine base on November 22. Chavis was
arrested on the day of his indictment. At the time of his
arrest, Chavis had on his person $1,522 in cash, a small
electronic scale, and an Illinois identification card.
   At trial, Jefferson, local police, and DEA agents all testi-
fied about the drug ring and Chavis’s involvement in it.
Chavis attempted to exclude several pieces of evidence,
including a prior conviction for possession of cocaine
with intent to distribute, and the evidence found on
Chavis during his April 22, 2003 arrest. The district court
proceeded to analyze the disputed evidence pursuant to
Fed.R.Evid. 404(b), concluding that the prior conviction was
admissible as it was being used to show Chavis’s intent
rather than propensity. The district court also found that the
evidence from Chavis’s arrest satisfied Rule 404(b). At the
end of trial, Chavis requested that the court give a buyer-
seller instruction to the jury. The court refused, finding that
no evidence supported such an instruction.
  The jury convicted Chavis on the counts dealing with the
November 15 and November 22 drug deals, but found him
not guilty of the count relating to the November 21 deal. The
district court sentenced Chavis to concurrent terms of 420
months’ imprisonment. Chavis appeals.
6                                                 No. 04-2787

                              II.
  On appeal, Chavis challenges the district court’s admis-
sion of: (1) Chavis’s 1997 conviction on a drug-related
offense; (2) evidence found on Chavis when he was arrested
in April of 2003; (3) Jefferson’s testimony regarding his
dealings with Chavis; and (4) the taped conversations of
Thompson and Jefferson from the November 15 and
November 21 drug deals with the Flemonses. Further,
Chavis asserts that the district court erred in refusing a
buyer-seller jury instruction. Finally, Chavis raises a Booker
challenge to his sentence.


                              A.
  The first three of Chavis’s four evidentiary challenges
involve the application of Rule 404(b). Rule 404(b) prohibits
the use of evidence of other bad acts to show that a defen-
dant has a propensity to commit a crime and that he acted
in accordance with that propensity on the occasion in
question. See United States v. Best, 250 F.3d 1084, 1090 (7th
Cir. 2001). Such evidence, however, can be admitted if it is
offered for purposes other than showing propensity, such as
to establish intent, knowledge, lack of mistake, motive, or
opportunity. See United States v. Puckett, 405 F.3d 589, 596
(7th Cir. 2005); see also United States v. Jones, 389 F.3d 753,
756 (7th Cir. 2004). A four-part standard governs the
admissibility of this type of evidence under Rule 404(b):
    (1) the evidence [must be] directed toward a matter in
    issue other than the defendant’s propensity to com-
    mit the crime charged; (2) the evidence [must] show[ ]
    that the other act is similar enough and close enough in
    time to be relevant to the matter in issue; (3) the evi-
No. 04-2787                                                  7

    dence [must be] sufficient to support a jury finding that
    the defendant committed the similar act; and (4) the
    probative value of the evidence [must] not [be] substan-
    tially outweighed by the danger of unfair prejudice.
Best, 250 F.3d at 1090-91. As Chavis made timely objections,
we review the district court’s decision to admit the evidence
under Rule 404(b) for an abuse of discretion. See Puckett, 405
F.3d at 595. Furthermore, “even erroneous evidentiary
rulings will not be overturned if any resulting error was
harmless.” United States v. Price, 418 F.3d 771, 779 (7th Cir.
2005) (quoting United States v. Farmer, 924 F.2d 647, 654 (7th
Cir. 1991)).


                              1.
  Chavis first contends that the district court improperly
admitted evidence relating to his 1997 conviction for
possession of crack cocaine with intent to distribute. For a
specific intent crime, like the ones charged in this case,
intent is a required element of the offense, which the
government must prove beyond a reasonable doubt. See
Best, 250 F.3d at 1091. “We have repeatedly held that when a
defendant is charged with a specific intent crime, the
government may introduce evidence of other acts to prove
intent.” Id.; see also Jones, 389 F.3d at 756; United States v.
Macedo, 406 F.3d 778, 793 (7th Cir. 2005). However, we also
recognize that the permissible use of prior convictions to
prove intent may have the potentially impermissible side
effect of allowing the jury to infer propensity. See Jones, 389
F.3d at 757; Macedo, 406 F.3d at 792.
  Understanding the difficulty in distinguishing between
the legitimate use of prior convictions as evidence of in-
tent and the illegitimate use to show propensity, we have
8                                                   No. 04-2787

held: “the government must affirmatively show why a
particular prior conviction tends to show the more forward-
looking fact of purpose, design, or volition to commit the
new crime.” Jones, 389 F.3d at 757. In other words, a prior
conviction introduced solely for its own sake is propensity
evidence, see id. at 758, but a prior conviction shown to have
some additional relevance can qualify as intent evidence. See
id. at 757. Of course, the devil lies in the details of what
must be shown for the conviction to attain legitimacy.
   This court has held in several cases that a theory of
defense that calls into question intent can supply the
additional relevance. In Jones we noted, “a prior convic-
tion may be relevant to show intent if the defendant con-
cedes that he possessed the drugs but denies that he
planned to distribute them, or if he denies knowing that the
substance was contraband.” Id. at 757-58; see also Puckett, 405
F.3d at 596 (“evidence of a prior conviction . . . is especially
relevant and probative” when defendant conceded that he
had possession of a large amount of cocaine, but claimed it
was for personal use). Each of the examples in Jones sketches
a case in which the defendant himself opens the door to the
use of the conviction by asserting that he lacked the requi-
site intent for the crime. In another recent case, we allowed
the admission of the convictions to respond to the defense
theory that the defendant did not have any intent to enter
into a conspiracy to distribute drugs because he was
“simply present at the airport by happenstance.” See Macedo,
406 F.3d at 793. “This theory, coupled with the govern-
ment’s need to prove an essential element of the case, i.e.,
that the defendant acted with the requisite specific intent,
supports the district court’s decision to admit the prior bad
acts.” Id. In United States v. Kreiser, 15 F.3d 635, 640 (7th Cir.
1994), this court held that “the 1984 cocaine transactions
show that Kreiser was familiar with the cocaine business
No. 04-2787                                                         9

and was not some hapless fool mistakenly caught up in
some overzealous enforcement action.” Such a defense
theory provides the additional relevance necessary for a
prior conviction to satisfy Rule 404(b) as intent evidence.
  Turning to Chavis’s case, we find that the prior conviction
was used as evidence of his intent to engage in a conspiracy
to possess drugs with an intent to distribute rather than to
show his propensity to commit this crime. Chavis presented
a defense that he was simply in the wrong place at the
wrong time. He claimed no intent to distribute drugs
because he was completely innocent. This is nearly identical
to Macedo. By portraying himself as a clueless bystander,
Chavis himself gave the prior conviction the requisite
relevance to satisfy Rule 404(b). Given the defense theory
and the government’s obligation to prove specific intent, the
district court did not abuse its discretion in determining that
the prior conviction went to intent and not propensity. See
Macedo, 406 F.3d at 793.
  Chavis also argues that the introduction of the 1997
conviction violated the fourth prong of the Rule 404(b)
analysis—that the probative value must not be substantially
outweighed by the danger of unfair prejudice. “Evidence is
unfairly prejudicial only to the extent that it will cause the
jury to decide the case on improper grounds.” See United
States v. Jones, 248 F.3d 671, 676 (7th Cir. 2001). Here, the
danger of unfair prejudice was relatively small. The district
court gave a proper limiting instruction to the jury that the
prior conviction could only be used for purposes of assess-
ing Chavis’s intent, and we must presume that the jurors
followed this order.1 See Puckett, 405 F.3d at 599; see also


1
    The district court actually gave limiting instructions to the jury
                                                       (continued...)
10                                                 No. 04-2787

Macedo, 406 F.3d at 793. Chavis does not rebut this presump-
tion or demonstrate that the jury decided the case on any
improper grounds. On the other side of the ledger, the
evidence in this case had a great deal of probative value, as
it went directly to an element of the crime, which Chavis
himself made an issue in the case by denying any connec-
tion to the drugs. See Puckett, 405 F.3d at 599.
  Even if we concluded that the district court abused its
discretion by admitting this evidence in violation of
Rule 404(b), Chavis’s challenge would nonetheless fail.
“A finding of this kind of error [in a decision to admit]
simply takes us to the next step, which is to ask whether the
error ‘affect[ed] substantial rights.’ ” Jones, 389 F.3d at 758.
In this case, it did not, as there was overwhelming evidence
of Chavis’s guilt. For two days authorities watched as
Thompson and Jefferson met across the street from Chavis’s
residence before the attempted drug deals. The authorities
observed Chavis meet and apparently hand a package to
Jefferson shortly before Jefferson and Thompson were to
deliver drugs to the Flemonses. When the authorities closed
in on the men, they found drugs in the car, and Chavis and
Jefferson traded accusations of being set up. Chavis had 16
of the 19 marked bills that the Flemonses used in the
controlled buys. Jefferson testified as to the nature and
extent of the conspiracy, providing details about the length


1
  (...continued)
twice about the consideration of this evidence, both after the
government initially presented the evidence and after closing
arguments. Each time the district court instructed the jury to
consider the conviction and other acts evidence only on the
question of intent, knowledge, or absence of mistake or accident.
The language employed correctly tracked the Seventh Circuit
Pattern Federal Criminal Jury Instruction 3.04 (1999).
No. 04-2787                                                11

of his relationship with Chavis and the frequency and terms
of their drug transactions, including prices and payments on
credit. The admission of the 1997 conviction had no effect on
his substantial rights, given this mountain of evidence
supporting the jury’s verdict.


                             2.
  Chavis next argues that the district court abused its
discretion when it admitted, pursuant to Rule 404(b), the
evidence that the police found during his April 2003 arrest.
We evaluate using the same four-part test discussed above,
despite the fact that the evidence was found several months
after the charged offenses. See United States v. Anifowoshe,
307 F.3d 643, 646-47 (7th Cir. 2002) (“[B]y its very terms,
404(b) does not distinguish between prior and subsequent
acts.”) (quoting United States v. Betts, 16 F.3d 748, 757 (7th
Cir. 1994)). Chavis challenges the introduction of his cell
phone, an electronic scale, and $1,522 in cash as violating
Rule 404(b), focusing on the first and fourth prongs of the
analysis.
  The district court did not abuse its discretion when it
admitted the various pieces of evidence discovered at
Chavis’s arrest because the evidence was not offered to
show propensity. Rather, the items from the 2003 arrest
went directly to establishing his knowledge and intent
relating to the charged 2002 crimes of conspiracy to distrib-
ute crack cocaine and possession with intent to distribute.
As discussed previously, Chavis’s theory of defense was
complete innocence, contending that drugs were on the car
floor and several thousand dollars in his pockets not
because he was part of a drug conspiracy, but because of an
unfortunate, yet explainable, chain of events. The evidence
collected at the 2003 arrest show Chavis’s intent and
12                                                No. 04-2787

knowledge to engage in the specified crimes in November.
At the time of his arrest, he had over fifteen hundred dollars
in cash on him, thus casting considerable doubt on his
argument that he was carrying a large amount of money in
2002 because his girlfriend had given him her emergency
funds and he had a good night with the dice. See United
States v. Shanks, 97 F.3d 977, 981 (7th Cir. 1996) (large
amount of cash considered relevant evidence for jury’s
finding of possession with intent to distribute). Further, he
was found at his arrest with tools of the drug trade, such as
scales, see United States v. Carrasco, 257 F.3d 1045, 1048 (9th
Cir. 2001), making it highly unlikely that Jefferson merely
happened into Chavis’s car with crack cocaine on November
22. All the pieces of arrest evidence suggest that the inno-
cent spin that Chavis seeks to give the November events is
just that spin. The arrest evidence indicates that Chavis
actually intended to take part in a drug conspiracy in
November 2002.
  Turning to the fourth prong of the Rule 404(b) analysis,
the district court again gave a proper limiting instruction to
the jury that lessened any prejudice from the arrest evi-
dence. See, e.g., Macedo, 406 F.3d at 793. The evidence itself
had high probative value on Chavis’s intent and knowledge
relating to the conspiracy to distribute crack cocaine.
Therefore, the district court did not abuse its discretion in
admitting this evidence.


                              3.
  Chavis also asserts that the district court should not
have admitted testimony of Jefferson regarding his dealings
with Chavis in the year preceding the charged offenses.
Chavis challenged this evidence before the district court for
No. 04-2787                                                13

failing to comply with Rule 404(b). The district court
disagreed and decided that the evidence was inextricably
intertwined with the major issues in the case.
   “As we have stated before, evidence ‘concerning the
chronological unfolding of events that led to an indictment,
or other circumstances surrounding the crime, is not
evidence of ‘other acts’ within the meaning of Fed.R.Evid.
404(b).’ ” United States v. Ojomo, 332 F.3d 485, 489 (7th Cir.
2003) (quoting United States v. Ramirez, 45 F.3d 1096,
1102 (7th Cir. 1995)). To qualify as inextricably intertwined
evidence that is outside Rule 404(b), “the question is
whether the evidence is properly admitted to provide the
jury with a ‘complete story of the crime [on] trial,’ whether
its absence would create a ‘chronological or conceptual
void’ in the story of the crime, or whether it is ‘so blended
or connected’ that it incidentally involves, explains the
circumstances surrounding, or tends to prove any ele-
ment of, the charged crime.” Ramirez, 45 F.3d at 1102
(internal citations omitted). Even inextricably intertwined
evidence must still pass muster under Rule 403, which
provides that relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.”
Fed.R.Evid. 403; see also, United States v. Hargrove, 929
F.2d 316, 320 (7th Cir. 1991).
  In this case, Jefferson offered testimony describing the
specifics of the drug conspiracy. He testified about the
length of his relationship with Chavis and their arrange-
ments for selling crack cocaine, including the amount and
frequency of the drug sales and the drug prices. He ex-
plained that Chavis would front him drugs on credit, and
14                                                No. 04-2787

that Jefferson would repay Chavis after making a sale. The
absence of this evidence about the prior dealings between
Jefferson and Chavis would leave major questions regarding
the conspiracy. This evidence completed the story for the
jury, explaining how Jefferson and Chavis knew each other,
worked together, and eventually ended up together in the
liquor store parking lot on November 22. Furthermore, this
highly probative evidence did not violate Rule 403, as it was
not unfairly prejudicial, but simply testimony describing a
drug conspiracy. See United States v. Hicks, 368 F.3d 801, 807
(7th Cir. 2004) (“Evidence is unfairly prejudicial only if it
will induce the jury to decide the case on an improper basis,
commonly an emotional one.”) (citations omitted). The
district court was right to admit this evidence.


                              4.
   Turning to the final evidentiary challenge, Chavis con-
tends that the district court erred when it admitted at his
trial taped evidence recording the drug deals between
Thompson and the Flemonses. Chavis suggests that this
evidence violated Rule 403 in that the probative value of the
tapes was outweighed by possible confusion of the issues or
unfair prejudice. As Chavis did not challenge this evidence
before the district court, we review for plain error. See Price,
418 F.3d at 779.
  The district court did not violate Rule 403 in the admis-
sion of the tapes of the drug deals. The tapes went directly
to a major element of the charged offenses—the actual
distribution of the crack cocaine on November 21 and 22. To
show that Chavis had possessed those drugs, the govern-
ment needed to connect the Flemons’s request for crack with
the subsequent request for Chavis to supply those drugs.
No. 04-2787                                                   15

The conversations between Chavis, Thompson,
and Jefferson helped set the stage for Jefferson’s testi-
mony that he then went to Chavis for drugs. As such,
they were highly probative and relevant. On the other
side of the Rule 403 balance, we cannot conclude there
was any unfair prejudice or confusion of the issues stem-
ming from these tapes. The district court did not err.


                               B.
  Chavis next argues that the district court improperly
denied him a buyer-seller jury instruction. We review a
district court’s decision regarding a jury instruction for an
abuse of discretion. See United States v. Reed, 227 F.3d 763,
771 (7th Cir. 2000). This court, when addressing a chal-
lenge to jury instructions, must view the jury instructions in
the context of the trial as a whole. See United States v. Pedigo,
12 F.3d 618, 626 (7th Cir. 1993). We have previously held:
    A defendant must satisfy a four-part test before he is
    entitled to a jury instruction to present a theory of
    defense. He must show that (1) the proposed instruction
    is a correct statement of the law; (2) the evidence in the
    case supports the theory of defense; (3) the theory of
    defense is not already part of the charge; and (4) failure
    to include the proposed instruction would deny the
    defendant a fair trial.
United States v. Meyer, 157 F.3d 1067, 1074 (7th Cir. 1998). To
satisfy the second prong of this analysis, a party must show
evidence sufficient to create a reasonable doubt of guilt in
the mind of a reasonable juror. See id.
  In this case, Chavis wanted an instruction to inform the
jury that the mere fact of a buyer-seller relationship did
16                                                   No. 04-2787

not automatically mean there was a conspiracy. The line
between a conspiracy and a mere buyer-seller relationship is
difficult to discern, so district judges should instruct juries
about the difference if there is evidence in the record that
would support a jury rationally finding in the defendant’s
favor. See United States v. Gee, 226 F.3d 885, 895 (7th Cir.
2000). Before this court, Chavis contends that the short
length of the conspiracy and the limited number of transac-
tions engaged in was sufficient evidence to support the
buyer-seller instruction.
  We disagree; there was no evidence of a buyer-seller
relationship between Jefferson and Chavis. The government
presented evidence that the men were in cahoots as co-
conspirators, while Chavis argued complete innocence. We
have dealt with such a situation before. See United States v.
Fort, 998 F.2d 542, 547 (7th Cir. 1993). In that case, at his trial
for possession with intent to distribute and conspiracy for
the same, Fort argued that he was a mere bystander. See id.
at 543, 547. At the end of trial, he offered a buyer-seller jury
instruction, which the district court rejected. See id. at 547.
Affirming, we explained that “a buyer-seller instruction
would have been inconsistent with the defense position that
Mr. Fort was not a buyer at all.” Id. Similarly in our case,
Chavis offered no evidence that would support a buyer-
seller instruction, and, in fact, such an instruction would
contradict his only theory of defense—innocence. Therefore,
the district court did not abuse its discretion in denying the
instruction.


                                C.
  Finally, Chavis challenges his sentence based on Booker,
asserting that the mandatory nature of the guidelines
No. 04-2787                                                   17

made his sentence improper. The government agrees that a
remand, as contemplated in Paladino, is appropriate because
the district court sentenced Chavis under the then-manda-
tory guidelines. See United States v. Castillo, 406 F.3d 806, 823
(7th Cir. 2005) (quoting United States v. White, 406 F.3d 827,
835 (7th Cir. 2005) (“[M]ere mandatory application of the
Guidelines—the district court’s belief that it was required to
impose a Guidelines sentence—constitutes error.”)). There-
fore, we order a limited Paladino remand to determine
whether the district court, treating the guidelines as advi-
sory, would reimpose the same sentence.


                              III.
   The district court was right to admit the various chal-
lenged pieces of evidence after properly considering
arguments from counsel and conducting the appropriate
analysis. Further, the court did not abuse its discretion when
it concluded that there was no support for a buyer-seller
jury instruction in the evidence at trial. We affirm
the district court on these issues, and order a limited
remand for it to conduct the Paladino inquiry.




  CUDAHY, Circuit Judge, concurring. I do not agree that
evidence of Chavis’s 1997 conviction of a drug crime
was admissible to show intent (or, as the government
has also argued, knowledge). Chavis’s defense was that
although he was present at the scene of the drug sale, he did
not supply the drugs at issue to Jefferson or Thompson. As
18                                                 No. 04-2787

the majority puts it, Chavis claimed that “he was simply in
the wrong place at the wrong time.” His defense, then, is
that the drugs were not his, not that he did not realize that
drugs were involved. Although “[a] prior conviction may be
relevant to show intent if the defendant concedes that he
possessed the drugs but denies that he planned to distribute
them, or if he denies knowing that the substance was
contraband,” neither of those scenarios is presented here.
United States v. Jones, 389 F.3d 753, 757-58 (7th Cir. 2004).
The analysis would be different, and intent or knowledge as
discrete issues might be implicated, if Chavis had admitted
to involvement in the transfer but asserted that he thought
the stuff transferred was not crack cocaine but cough drops.
  The government describes Chavis’s defense as an asser-
tion “that he just happened to stumble upon the scene of a
drug deal, and that someone just happened to hand him
crack cocaine, but that he never intended to possess or
distribute the crack.” This description is an attempt to
shoehorn the prior conviction into the intent or knowledge
exception by painting his defense (the drugs weren’t mine)
as a lack of intent (I had them, but I wasn’t going to sell
them) or a mistake (I thought they were cough drops). But
again, Chavis never claimed that he had mistakenly sold
anything or that he was unaware of what crack cocaine
looked like. As in Jones, the government here has failed to
articulate how the prior conviction established specific
intent or some other state of mind as a concept discrete from
Chavis’s propensity to commit drug crimes. Id.
  This, I think, is the essential point. To meet the test of Rule
404(b), there must be a showing that an issue has been
joined as to intent, or another of the 404(b) categories,
discrete from a showing of mere propensity. E.g., id. at 757
(“the government must affirmatively show why a particular
No. 04-2787                                                  19

prior conviction tends to show the more forward-looking
fact of purpose or design, or volition to commit the new
crime”); United States v. Macedo, 371 F.3d 957, 967 (7th Cir.
2004) (“when a defendant is charged with a specific intent
crime, such as possession with intent to distribute, we have
reasoned that evidence of a past action is probative if used
to establish an essential element of the crime charged);
United States v. Best, 250 F.3d 1084, 1091 (7th Cir. 2001)
(“evidence of prior convictions or other misconduct is not
admissible to show that a defendant has a propensity to
commit crime and that he acted in conformity with that
propensity on the occasion in question”). It is not enough
that one or more of these categories (like specific intent) be
a formal element of the crime. These categories must be
discretely placed in issue to be a basis of 404(b) relevance. If
not, the only plausible reason for introducing prior convic-
tion evidence is to show propensity. The prior convictions
tell the jury in fairly blatant terms that a defendant is not to
be believed when he says the drugs were not his because he
has done it before. This evidence, then, violates basic
principles of criminal justice. Jones, 389 F.3d at 757.
  Although I believe that there is error here as to the
404(b) issue, the other evidence is more than sufficient
to support the judgment. I therefore join the majority in
all but Part II.A.1 of the opinion.
20                                           No. 04-2787

A true Copy:
       Teste:

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




                USCA-02-C-0072—11-9-05
