                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-3967

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

S TEPHEN W ALTOWER,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 08 cr 186—David H. Coar, Judge.


      A RGUED F EBRUARY 16, 2011—D ECIDED JULY 5, 2011




 Before P OSNER, F LAUM and SYKES, Circuit Judges.
  F LAUM , Circuit Judge. Stephen Waltower was con-
victed of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). He was acquitted of
several other drug-related offenses, but the district
court took the underlying (acquitted) conduct into con-
sideration at sentencing. The result was a statutory maxi-
mum sentence of 120 months. On appeal, Waltower
challenges the use of the acquitted conduct at sentencing.
He also maintains that his lawyer should have argued
2                                            No. 09-3967

that certain post-arrest, self-incriminating statements
he made were solicited in violation of Miranda v.
Arizona, 384 U.S. 436 (1966). We affirm.


                     I. Background
  In September 2007, a Cook County circuit judge issued
a search warrant for Waltower, as well as the first floor
apartment and basement of 161 N. Lamon Avenue, in
Chicago, Illinois. The warrant authorized police to seize
a black 9mm handgun, any ammunition, and any docu-
ments showing residency. Although Waltower had lived
at the apartment since January 2007, the apartment
was not his. It belonged to his then-girlfriend, Kimesia
Gooden. When police searched the apartment, they
did not find Waltower, but they did recover a black 9mm
semi-automatic Glock pistol, which was loaded with
nine rounds; separately stored ammunition of various
types; and mail addressed to Waltower (though listing
a different address). Nearby, police discovered several
items associated with drug trafficking—more than two-
hundred plastic bags containing nearly 50 grams of
crack cocaine, a scale and grinder, and $640 in cash.
  A month after the search, Waltower was arrested;
police interviewed him about the search of the apart-
ment. At trial, Chicago Police Officer David Greenwood
testified that he read Miranda warnings to Waltower
and then asked him about the fruits of the search of the
apartment. Waltower agreed to talk and admitted that
he had purchased the pistol for $300 or $400. When asked
about the drugs, Waltower said he was holding them
No. 09-3967                                              3

for someone else. Waltower was charged in a superseding
indictment that comprised four counts: conspiring to
possess with intent to distribute 5 grams or more of a
mixture of crack cocaine and heroin, in violation of 18
U.S.C. § 846; possessing with intent to distribute 5 grams
or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1); possessing a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A);
and being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). Prior to trial, Waltower sought
unsuccessfully to suppress evidence obtained from his
apartment, arguing that the search was not supported by
probable cause. The district court denied the motion
and the case proceeded to trial.
   Among the key evidence at trial was Kimesia Gooden’s
testimony, which came in exchange for a grant of immu-
nity. According to her, she rendezvoused with Waltower
after the search. She told Waltower, “[The police] were
looking for your gun.” Waltower asked if the police
found it. She answered that they had. Waltower subse-
quently asked her to “take the charge” on the gun—that
is, tell the authorities that it belonged to her—and said
that he would similarly cop to any drug charges. She
also testified that the gun was found near the drugs in
a bedroom where Waltower engaged in drug-processing
activity. Officer Greenwood testified at trial, too, re-
lating the contents of Waltower’s self-incriminating
statements to the jury.
  The jury acquitted Waltower of the three drug-related
counts but convicted him of the fourth count, being a
4                                               No. 09-3967

felon in possession of a firearm. At sentencing, however,
he had less luck with the three acquittals. The district
judge stated, “Unlike the jury, I believe that the evidence
clearly established that Mr. Waltower was dealing drugs
out of that apartment” and noted that the drugs and
gun were found near each other. Thus, the district court
agreed with the pre-sentence investigation report and
added a four-level enhancement to the base-offense
level for possessing a firearm in connection with another
felony offense. In conjunction with other factors, the
resulting guidelines range was calculated at 121-
151 months.1 Waltower was sentenced to the statutory
maximum of 120 months in prison.




                      II. Discussion
  Waltower argues that the district court committed
error when it considered acquitted conduct at sentencing,
because the practice is unconstitutional in general and
was inappropriate in his case. He also argues that
his lawyer should have moved to suppress the self-in-
criminating statements that he made to a police officer.



1
  Technically, the guidelines sentence was 120 months. The
statutory maximum sentence for being a felon in possession
of a firearm is ten years. 18 U.S.C. § 924(a)(2). Under USSG
§ 5G1.1(a), where the statutorily authorized maximum sen-
tence is above the minimum of the guidelines range, the
statutory maximum becomes the guidelines sentence.
No. 09-3967                                               5

Waltower’s contentions regarding the use of acquitted
conduct at sentencing conflict with Supreme Court prece-
dent, as well as this circuit’s case law. His argument
regarding the self-incriminating statements that he
made to Officer Greenwood is best understood as an
undeveloped ineffective assistance of counsel argument,
best left for collateral review. E.g., United States v.
Harris, 394 F.3d 543, 558 (7th Cir. 2005).


A. Acquitted Conduct and Sentencing
   Waltower’s primary argument is that it is unconstitu-
tional to consider acquitted conduct at sentencing. The
Supreme Court has rejected that argument, stressing
that a person whose acquitted conduct is considered at
sentencing is not punished for a crime of which he has
not been convicted. Rather, he is punished for the crime
he did commit: and because the sentencing guidelines
direct judges to look at the characteristics of the
offense, relevant conduct proved by a preponderance
standard can include acquitted conduct. United States v.
Watts, 519 U.S. 148, 156-57 (1997) (per curiam) (sentence
informed by acquitted conduct violates neither the
Fifth Amendment’s prohibition on double jeopardy nor
its due-process guarantee); see also Alabama v. Shelton, 535
U.S. 654, 665 (2002) (“Thus, in accord with due process,
[a defendant] could have been sentenced more severely
based simply on evidence of the underlying conduct . . .
even if he had been acquitted of the misdemeanor with
the aid of appointed counsel.”) (citations and quotation
marks omitted).
6                                               No. 09-3967

   The facts from Watts are similar to the facts underlying
Waltower’s conviction and sentence. A jury had con-
victed Vernon Watts of possessing cocaine base with
intent to distribute, but acquitted him of using a
firearm in relation to a drug offense. The district judge
nonetheless found by a preponderance of the evidence
that Watts had used a firearm in relation to the drug
offense for which he was convicted. Therefore, the court
added two points to the base-offense level for his posses-
sion conviction, because it was part of the offense’s rele-
vant conduct. The Ninth Circuit broke ranks with other
circuits to have considered the question and held
that acquitted conduct could not be considered at sen-
tencing—under any standard of proof. A companion
case, consolidated for purposes of certiorari, suggested
that “effectively punishing [a defendant] for an offense
for which she has been acquitted” constituted double
jeopardy in violation of the Fifth Amendment. United
States v. Putra, 78 F.3d 1386, 1389 (9th Cir. 1996).
  The Supreme Court reversed. As for due process, the
Court noted that “under the pre-Guidelines sentencing
regime, it was ‘well established that a sentencing judge
[could] take into account facts introduced at trial
relating to other charges, even ones of which the
defendant [was] acquitted.” Watts, 519 U.S. at 152 (quoting
United States v. Donelson, 695 F.2d 583, 590 (D.C. Cir. 1982)
(Scalia, J.)). The promulgation of the federal sentencing
guidelines, which the Court interpreted as permitting
consideration of acquitted conduct, did not alter that dis-
cretion. Id. at 153. “The Guidelines state that it is ‘appro-
priate’ that facts relevant to sentencing be proved by a
No. 09-3967                                              7

preponderance of the evidence, and we have held that
application of the preponderance standard at sentencing
generally satisfies due process.” Id. at 156 (citing USSG
§ 6A1.3, comment). As for double jeopardy, the Court
observed that acquittal on a criminal charge is not to be
conflated with a declaration of innocence. Moreover,
a defendant whose sentence is based partially on
acquitted conduct has not been subjected to punish-
ment for crimes of which he has not been convicted.
“Rather, the defendant is ‘punished only for the fact that
the present offense was carried out in a manner that
warrants increased punishment . . . .” Id. at 155 (quoting
Witte v. United States, 515 U.S. 389, 403 (1995)). See also
18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the . . . conduct of a person con-
victed of an offense . . . for the purpose of imposing an
appropriate sentence.”). Thus, Watts’s rights were not
violated when the government relitigated acquitted
conduct at sentencing under a lower burden of proof.
Watts, 519 U.S. at 156 (citing Dowling v. United States,
493 U.S. 342, 349 (1990)).
  Much of Waltower’s brief argues, in effect, that Watts
was wrongly decided when it was decided; he argues
that the distinction between being punished for
acquitted conduct and being sentenced based on the
characteristics of an offense for which a defendant has
been convicted is “illusory,” Appellant’s Brief at 17, and
that the Court was mistaken in its view that Congress
had authorized the use of acquitted conduct in cal-
culating a guidelines range, id. at 33. His view of the
case, however, does not render its holding any less
binding on lower courts.
8                                                  No. 09-3967

  Nor has Watts been overturned by the Supreme Court’s
line of cases beginning with Apprendi v. New Jersey, 530
U.S. 466, 478 (2000), articulating important principles
relating to the “companion right[s]” of due process and
the Sixth Amendment right to a jury trial. In Apprendi, the
Court held that any fact other than a prior conviction
increasing “the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490. Thus, a
New Jersey law failed to pass constitutional muster
where it allowed for an enhanced sentence if the judge
made a finding that the defendant had the purpose
of intimidating his victim based on statutorily specified
victim-characteristics. See also id. at 492-93 (noting that
the required mens rea finding was “as close as one
might hope to come to a core criminal offense ‘element’ ”).
Subsequently, in Blakely v. Washington, the Court clarified
that, for Apprendi purposes, the “ ‘statutory maximum’ . . .
is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted
by the defendant.” Blakely, 542 U.S. 296, 303 (2004).
  The holding in Blakely seriously undermined the
federal sentencing guidelines, even if it did not demand
their demise. See United States v. Booker, 375 F.3d 508, 520-
21 (7th Cir. 2004) (Easterbrook, J., dissenting). Yet, be-
cause the federal sentencing guidelines were binding on
judges, see 18 U.S.C. § 3553(b)(1), a system of mandatory
guidelines permitted a judge to “inflict[] punishment
that the jury’s verdict alone does not allow,” thus
“exceed[ing] his proper authority.” Blakely, 542 U.S. at 304.
That is what the Court held in United States v. Booker, 543
No. 09-3967                                                 9

U.S. 220 (2005), although the Supreme Court struck down
not the guidelines regime, but the provision that made
the guidelines binding. Id. at 245 (excising 18 U.S.C.
§ 3553(b)(1) because it made the guidelines binding
and § 3742(e) because it depended on their mandatory
nature). See also Cunningham v. California, 549 U.S. 270, 292
(2007) (noting that all of the justices who decided
Booker agreed that advisory guidelines “would not impli-
cate the Sixth Amendment”).
  Freddie Booker had been convicted of possessing at
least 50 grams of crack. The sentencing guidelines
would have been 210-262 months, based on the evidence
at trial, but Booker was sentenced to 360 months
because the judge found at sentencing that Booker had
possessed nearly 660 grams of crack. Under the Court’s
holding, Booker’s sentence, based on findings not made
by the jury and guidelines that were binding on judges,
violated the Sixth Amendment. Booker, 543 U.S. at 235.
Had the guidelines been merely advisory, however, it
would have been constitutional for Booker to be sen-
tenced to any reasonable sentence that did not exceed
the statutory maximum. (And on appeal, we may
presume that a guidelines-range sentence is reasonable.
Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007).) Indeed,
on remand, Booker was given the same 30-month
sentence that he had been given under the binding guide-
lines regime. We upheld the sentence. United States
v. Booker, 149 Fed. Appx. 517 (7th Cir. 2005) (per curiam).
 By its terms, nothing about Booker calls Watts into
question. More importantly, Booker itself suggests that
10                                              No. 09-3967

Watts is still good law. In articulating requirements for
district court judges who mete out sentences, Justice
Breyer’s portion of the opinion of the Court directs
district judges to “take account of” the guidelines range,
Booker, 543 U.S. at 259, which we know from Watts
may properly include acquitted conduct. More impor-
tantly, in defending the remedy that the Court elected
in Booker—excising the portion of the Sentencing Reform
Act that made the guidelines mandatory, rather than
striking down the statute—the Court indicated that
Watts furthered Congress’s “basic statutory goal” of
diminishing sentencing disparity by basing punishment
on “the real conduct that underlies the crime of convic-
tion.” Booker, 543 U.S. at 250; id. at 251 (citing Watts and
its application of the broad language in USSG § 1B1.3 as
an example of the sentencing regime that Congress
sought to enact). It would have been odd indeed for
the Supreme Court to invoke Watts as justification for the
remedy the Court adopted in Booker if some aspect of
the latter had rendered infirm the holding of the former.
  In sum, so long as a sentence does not exceed the statu-
tory maximum, there is no Sixth Amendment concern
with the advisory guidelines scheme. Here, the district
judge calculated the real offense level of Waltower’s
crime by reference to acquitted charges, but the informa-
tion was used only to determine the (advisory) punish-
ment for the crime of which Waltower was convicted.
At that point, the district judge was free to impose any
sentence so long as it was reasonable. And so long as
that reasonableness determination operates within the
constitutional constraints spelled out in Supreme Court
No. 09-3967                                                      11

precedent, there is no constitutional infirmity. See
Cunningham, 549 U.S. at 291-93. Because the Supreme
Court has rejected due process and double jeopardy
challenges to the use of acquitted conduct at sentencing,
its use on an advisory basis cannot by itself furnish Sixth
Amendment ammunition for excluding acquitted con-
duct at sentencing. See United States v. White, 551 F.3d 381,
385 (6th Cir. 2008) (“By freeing a district court to impose
a non-guidelines sentence, Booker pulled out the thread
that holds White’s Sixth Amendment claim together.”).
If Watts is infirm, it must be based on a more direct
attack—not Apprendi and its progeny.2 We are the right


2
  See also United States v. Booker, 543 U.S. at 240-41 (noting, in a
discussion that included Watts, that “[n]one of our prior cases
is inconsistent with today’s decision”). Justice Stevens’s
portion of the opinion of the Court stated that Watts had
presented the narrow question of the interaction between
double jeopardy and the guidelines. And some have taken
that language as an indication that a Sixth Amendment chal-
lenge to the use of acquitted conduct at sentencing might
prove meritorious. E.g., United States v. Mercado, 474 F.3d 654,
661 (9th Cir. 2007) (Fletcher, J., dissenting). That view does not
take account of the full opinion of the Court. Justice Breyer’s
portion of that opinion relied more explicitly on the validity
of Watts in justifying the case holding. Id. at 251. More to the
point, those who maintain that the Sixth Amendment bars
consideration of acquitted conduct at sentencing still need to
construct an argument. Those arguments, thoughtful though
they may be, e.g., United States v. Canania, 532 F.3d 764, 776 (8th
Cir. 2008) (Bright, J., concurring), tend to war with the logic of
                                                      (continued...)
12                                                 No. 09-3967

court only to allow Waltower to preserve his argument.
See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
  In rejecting Waltower’s constitutional argument, we
blaze no new trails. Every circuit to have considered the
question post-Booker, including ours, has held that ac-
quitted conduct may be used in calculating a guidelines
sentence, so long as proved by a preponderance stan-
dard. See, e.g., United States v. Gobbi, 471 F.3d 302, 313-14
(1st Cir. 2006); United States v. Vaughn, 430 F.3d 518, 527 (2d
Cir. 2005) (Sotomayor, J.); United States v. Grubbs, 585 F.3d
793, 799 (4th Cir. 2009); United States v. Farias, 469 F.3d 393,
399 (5th Cir. 2006); White, 551 F.3d at 385 (6th Cir. 2008);
United States v. Price, 418 F.3d 771, 787-88 (7th Cir. 2009);
United States v. No Neck, 472 F.3d 1048, 1055 (8th Cir. 2007);
United States v. Mercado, 474 F.3d 654, 657 (9th Cir. 2007);
United States v. Magallanez, 408 F.3d 672, 684 (10th Cir.
2005); United States v. Faust, 456 F.3d 1342, 1347-48 (11th
Cir. 2006); United States v. Settles, 530 F.3d 920, 923-24 (D.C.
Cir. 2008). But see United States v. Papakee, 573 F.3d 569,
577 (8th Cir. 2009) (Bright, J., concurring) (repeating the
position that using acquitted conduct at sentencing
violates the Sixth Amendment and maintaining that “the
myth of Watts has outgrown its actual holding”); Farias,
469 F.3d at 399 & n.15 (noting that a few district courts



2
  (...continued)
Watts and “miss[] the distinction between elements of an offense
and facts relevant to sentencing.” See United States v. Vaughn,
430 F.3d 518, 527 (2d Cir. 2005) (Sotomayor, J.) (Booker does
not create Sixth Amendment problems for Watts).
No. 09-3967                                               13

have “held or hinted” that Booker implicitly overruled
Watts and collecting cases).
  Although we, like the D.C. Circuit, understand why
defendants consider it unfair to take acquitted conduct
into account at sentencing, Settles, 530 F.3d at 924, their
use does not violate the United States Constitution
under existing doctrine. Waltower enjoys no more
success with his less ambitious arguments that the
use of acquitted conduct in this case was contrary to
the guidelines or otherwise unreasonable. Recall,
the district court determined that Waltower’s adjusted
base-offense level was 30 instead of 26, because the gun
conduct and the drug conduct were part of the same
relevant offense conduct for sentencing purposes.
  Under the guidelines, the starting point to determine
relevant offense conduct is USSG § 1B1.3(a)(1)(A), which
is descriptively entitled “Relevant Conduct (Factors
that Determine the Guideline Range).” The provision pro-
vides, in pertinent part, “Unless otherwise specified, . . .
the base offense level where the guideline specifies more
than one offense level . . . shall be determined on the basis
of . . . all acts and omissions committed, aided, . . . pro-
cured, of willfully caused by the defendant[.]” As we
have said before, a district court may consider acquitted
conduct when making its USSG § 1B1.3 determination.
United States v. Hurn, 496 F.3d 784, 788 (7th Cir. 2007).
  The guideline that led to the 4-point enhancement is
Section 2K2.1(b)(6), which applies a four-level enhance-
ment “[i]f the defendant used or possessed any firearm
or ammunition in connection with another felony of-
14                                               No. 09-3967

fense.” Application note 14 to this guideline specifies
that the enhancement applies if the firearm “facilitated, or
had the potential of facilitating another felony offense,”
a standard that the note teaches is met when a gun is
found in close proximity to drugs or drug paraphernalia.
There was ample evidence showing that the provision
applied in Waltower’s case: the gun was located in
close proximity to 222 bags of crack, a grinder and scale,
and a drug ledger. Moreover, there was evidence that
Waltower regularly prepared, packaged, and stored
drugs in the bedroom where the gun was found. And
the handgun was loaded and accessible if he had wished
to use it to protect the drug stash. These facts were suf-
ficient to trigger the enhancement, as the unlawful posses-
sion of the firearm had at least the potential of facilitating
a drug trafficking offense. E.g., United States v. Suggs,
624 F.3d 370, 373 (7th Cir. 2010); United States v. LePage,
477 F.3d 485, 489 (7th Cir. 2007) (“[W]hen the guns are
possessed along with the materials of a drug trafficker,
it is a reasonable inference that the guns protect or em-
bolden the criminal enterprise.”). Therefore, the Court
committed no error in calculating the advisory guide-
lines range. And although Waltower argues that we
should disregard the application note to the guidelines,
as it was not approved by Congress, an application note
is binding authority unless it is unconstitutional, violates
another statute, or is a “plainly erroneous” reading of
the guideline. United States v. Stitman, 472 F.3d 983, 988
(7th Cir. 2007). The application note falls into none of
those categories.
  Nor is there an alternative basis for finding that the
use of acquitted conduct is “unreasonable” under the
No. 09-3967                                                  15

Sentencing Reform Act. The Supreme Court held in
Booker that the reasonableness standard was implicit in
the Sentencing Reform Act. Booker, 543 U.S. at 260. There
is, however, an explicit statutory provision, 18 U.S.C.
§ 3661, that permits the use of acquitted conduct at sen-
tencing. We will not presume that the implicit standard
in the Sentencing Reform Act repeals the statutory pro-
vision authorizing the use of acquitted conduct. See
Tennessee Valley Authority v. Hill, 437 U.S. 153, 189 (1978)
(repeals by implication are disfavored).


B. Waltower’s Post-Arrest Statements
   Finally, Waltower challenges the use at trial of the self-
incriminating statements that he made to Officer Green-
wood regarding the gun and the drugs that were found
in the apartment. The vast majority of his brief devotes
itself to establishing that he has not waived the issue,
that we may consider his argument on a plain error
standard. In arguing about the standard of review, how-
ever, Waltower has paid insufficient attention to the
merits. In a single paragraph at the end of his brief, he
maintains that his trial counsel “should have alleged
that the statements were inadmissible on the ground
that the officers on the scene failed to advise him either
before or after his arrest of his Miranda rights . . . .” Appel-
lant’s Brief at 49.
  That reads like an ineffective assistance of counsel
argument. If so, the undeveloped nature of the record
provides robust if unintentional support for the general
rule that such a challenge is best left for a collateral
16                                             No. 09-3967

attack on the conviction. See Massaro v. United States, 538
U.S. 500, 504 (2003) (“In light of the way our system
has developed, in most cases a motion brought under
[28 U.S.C.] § 2255 is preferable to direct appeal for de-
ciding claims of ineffective assistance.”). Even construing
Waltower’s argument as a contention that his statements
were un-Mirandized and applying his favored standard
of review, his case founders on the merits. Waltower
points to no evidence indicating that he was not
given Miranda warnings. Nor does he maintain that the
error affected his substantial rights; there was other
evidence that pointed to his guilt, including the testi-
mony of his ex-girlfriend who said that the gun belonged
to Waltower and mail addressed to Waltower that
was located at the apartment. He has not established
any error, much less error that is plain.


                     III. Conclusion
 For the reasons set forth above, we A FFIRM the judg-
ment of the district court.




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