In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3675

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CALVIN BRUCE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07 CR 57—John C. Shabaz, Judge.

____________

ARGUED SEPTEMBER 19, 2008—DECIDED DECEMBER 18, 2008

 ____________

Before POSNER, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. Calvin Bruce was charged by

indictment with one count of possession with intent to

distribute fifty grams or more of cocaine base (crack

cocaine) in violation of 21 U.S.C. § 841(a)(1). He entered a

plea of not guilty, but was convicted after a jury trial. The

district court sentenced him to 360 months’ imprisonment

followed by 10 years of supervised release. Mr. Bruce
2 No. 07-3675

appeals both his conviction and his sentence. For the

reasons set forth in this opinion, we affirm Mr. Bruce’s

conviction and remand this case for resentencing in light of

the Supreme Court’s decision in Kimbrough v. United States,

___ U.S. ____, 128 S. Ct. 558 (2007).

I

BACKGROUND

A. Facts

On the afternoon of March 28, 2007, Calvin Bruce was

a passenger in a car that was stopped by officers of the

Dane County (Wisconsin) Narcotics and Gang Task Force.

During the stop, the police discovered an outstanding

warrant for Mr. Bruce’s arrest and took him into custody.

Mr. Bruce used his cell phone to call his girlfriend, Endia

Matthews, who drove to the scene of the traffic stop. After

Matthews arrived, the police learned that she was

on probation and had driven to the scene on a revoked

driver’s license. The police did not arrest her, but asked for

consent to search her house. Matthews consented. The

police obtained the keys to the house from Mr. Bruce, who

was then taken to a police station for questioning.

Madison Police Detective Dorothy Rietzler, Officer

Denise Markham and Officer Jason Baumgart went to

Matthews’ house to conduct the search and to interview

Matthews. At the house, they found $2,580 in cash in a

jacket belonging to Mr. Bruce. They also found a bag

containing crack cocaine and pepper in the engine compartment of a van parked in the garage. Other drug
No. 07-3675 3

paraphernalia were found throughout the house.

Matthews denied any knowledge about the drugs or the

money.

After completing the search, the police officers went to

the station to interview Mr. Bruce. Detective Rietzler led

the interview, portions of which also were attended by

Officers Markham and Baumgart. Before the interview

began, Detective Rietzler turned on an audio recorder. Mr.

Bruce initially denied any knowledge about the drugs and

the money. Eventually, however, he admitted that the

money belonged to him and also admitted that there were

“about two ounces” of crack in the van. R.75 at 26. Detective Rietzler offered Mr. Bruce “a chance to help [him]self”

by working with police to incriminate “the big fish”—that

is, other drug dealers who sold larger amounts of drugs.

R.75 at 20, 21. Mr. Bruce agreed to assist the police and

began by telling them the name and location of one of the

dealers from whom he bought drugs. Detective Rietzler

then turned off the audio recorder but continued the

interview for twenty more minutes.

Mr. Bruce was released from custody after the interview.

He ultimately failed to make good on his promise of

cooperation, however, and, in April 2007, he was indicted

in the United States District Court for the Western District

of Wisconsin on one count of possession with intent to

distribute 50 grams or more of a mixture or substance

containing cocaine base (crack cocaine) in violation of 21

U.S.C. § 841(a)(1).
4 No. 07-3675

B. Trial

Mr. Bruce’s jury trial was held in August 2007. At a pretrial hearing, Mr. Bruce alleged that Detective Rietzler had

violated Wisconsin law by continuing to interrogate him

after turning off the audio recorder. Wisconsin Statute

§ 968.073 provides, in relevant part: “It is the policy of this

state to make an audio or audio and visual recording of a

custodial interrogation of a person suspected of committing a felony unless . . . good cause is shown.” Wis. Stat.

§ 968.073(2). Mr. Bruce requested a jury instruction stating

that the law requires recording of interrogations by police

and instructing the jury that “unrecorded oral statements

made by a defendant out of court to a law enforcement

officer should be viewed with caution.” R.60 at 2. The

district court declined to give the proposed instruction

because it agreed with the prosecution that any violation of

state law by the police was irrelevant to Mr. Bruce’s guilt

or innocence under federal law.

At trial, the Government presented the recovered money,

the crack cocaine found in the van, the drug paraphernalia

found in the house and garage, and mail addressed to Mr.

Bruce at Matthews’ address. Detective Rietzler, Officer

Markham and Officer Baumgart testified about the recorded part of the interview, portions of which were

played for the jury. Detective Rietzler and Officer

Markham testified that, after the recorder was turned off,

Mr. Bruce continued to be relaxed and cooperative. They

also testified that Mr. Bruce dated and initialed a photo of

another dealer from whom he had purchased crack in the

past. This photo was admitted as evidence.
No. 07-3675 5

Mr. Bruce’s counsel was permitted to cross-examine the

officers about the content of the interview and the circumstances surrounding it, including the fact that Detective

Rietzler had stopped the recording. His counsel was not,

however, allowed to mention the Wisconsin statute

regarding the recording of custodial interrogations.

At the end of the trial, the court gave a model jury

instruction instead of Mr. Bruce’s proposed instruction on

the recording of interrogations. The jury convicted Mr.

Bruce on the sole count of the indictment.

C. Sentencing

Mr. Bruce was sentenced on October 31, 2007. The court

determined that Mr. Bruce’s past criminal record qualified

him as a career offender under Section 4B1.1 of the United

States Sentencing Guidelines. Accordingly, the court

calculated his base offense level under both the drug

quantity table Guideline, § 2D1.1(c), and the career offender Guideline, § 4B1.1(b). The court found that Mr.

Bruce’s offense, including relevant conduct, involved 3.28

kilograms of crack cocaine, resulting in a base offense level

of 38 under Section 2D1.1(c). Mr. Bruce’s base offense level

under Section 4B1.1(b) was 37 because the maximum

statutory sentence for his offense was life in prison.

Because the drug quantity table’s offense level of 38 was

the higher of the two, the court used this latter offense level

to determine Mr. Bruce’s sentencing range under the

Guidelines. The court also determined that Mr. Bruce’s

prior convictions placed him in Criminal History Category
6 No. 07-3675

VI. The Guidelines sentencing range for level 38 in Category VI is 360 months to life.

Mr. Bruce’s counsel pointed out to the court that

amended Guidelines were expected to take effect the next

day (November 1, 2007) that would reduce the offense level

for someone in Mr. Bruce’s position from 38 to 36. Counsel

acknowledged, however, that this reduction would have no

effect on Mr. Bruce’s sentencing range because he then

would be sentenced at the career offender offense level of

37, which also prescribes a range of 360 months to life for

offenders in Criminal History Category VI. The court

sentenced Mr. Bruce to 360 months’ imprisonment, to be

followed by 10 years of supervised release.

The next day, the 2007 Sentencing Guidelines took effect.

The new Guidelines reduced the Section 2D1.1 offense

level by two levels for all crack offenses. The United States

Sentencing Commission subsequently decided that this

reduction should be retroactive.

Mr. Bruce timely appealed his conviction and sentence.

II

DISCUSSION

Mr. Bruce submits that the district court’s exclusion of

any mention of the Wisconsin recording statute violated

his right to a fair trial. He also contends that the Supreme

Court’s decision in Kimbrough v. United States, ___ U.S.

____, 128 S. Ct. 558 (2007), entitles him to a remand for

resentencing. We consider these arguments in turn.
No. 07-3675 7

 The requested instruction read as follows: 1

The law requires law enforcement officers, when questioning a person who may be charged with a crime, to record all

oral statements made by that person. The failure of a law

enforcement officer to follow this law results in less than a

full and accurate record of the actual statement made by the

defendant, and denies a defendant the ability to present

recorded evidence that may be favorable to his or her case.

You have heard evidence that the defendant made a statement to law enforcement officers after they stopped the

recording device. You are the exclusive judge as to whether

the defendant made the statement, and as to what was

actually said. If you find that the defendant did not make

such a statement after the recording device was stopped,

you must disregard the evidence of the statement and not

consider it for any purpose. 

If you find that the defendant did make a statement after the

recording device was stopped, you must view the statement

as reported with caution, because unrecorded oral statements made by a defendant out of court to a law enforcement officer should be viewed with caution.

R.60 at 2.

A. Jury Instruction

Mr. Bruce’s first basis for appeal is that he was deprived

of the right to a fair trial by the district court’s refusal to

give his proposed jury instruction, which stated that the

police violated Wisconsin law by failing to record the

entirety of his interrogation. The district court instead 1

gave a model jury instruction that directed the jurors to

consider all of the evidence when weighing Mr. Bruce’s
8 No. 07-3675

 The court gave the following instruction: 2

You have received evidence of statements made by the

defendant to Detective Dorothy Rietzler and Denise

Markham. You must decide what weight, if any, you believe

the statements deserve. In making this decision you should

consider all matters in evidence having to do with the

statements and the circumstances under which the statements have been made.

R.89 at 156 (quoting Pattern Criminal Federal Jury Instructions

for the Seventh Circuit § 3.02).

statements to the police. Mr. Bruce submits that the court’s 2

refusal to give his instruction hindered his ability to

present his theory of defense, which was lack of proof. We

review de novo a district court’s decision not to give a

requested jury instruction. United States v. Prude, 489 F.3d

873, 882 (7th Cir. 2007). 

Mr. Bruce contends that he was entitled to have his

proposed instruction read to the jury because it satisfied

the four requirements that we have set forth for instructions on a defendant’s theory of defense. We have said: 

A defendant is entitled to a jury instruction as to his or

her particular theory of defense provided: (1) the

instruction represents an accurate statement of the law;

(2) the instruction reflects a theory that is supported by

the evidence; (3) the instruction reflects a theory which

is not already part of the charge; and (4) the failure to

include the instruction would deny the appellant a fair

trial.

United States v. Eberhart, 467 F.3d 659, 666 (7th Cir. 2006)

(quoting United States v. Buchmeier, 255 F.3d 415, 426 (7th
No. 07-3675 9

Cir. 2001)). Mr. Bruce submits that his proposed instruction satisfied each of these requirements and that therefore it was error for the court to refuse to give it.

Mr. Bruce’s theory of defense was that the Government

could not prove its case beyond a reasonable doubt. We

agree that he was entitled to have the jury instructed on

this theory, and in fact the jury was so instructed. Specifically, the court instructed the jury that Mr. Bruce was

entitled to a presumption of innocence that “is not overcome unless from all the evidence in the case you are

convinced beyond a reasonable doubt that the defendant

is guilty as charged.” R.89 at 159. Regarding the reliability

of Mr. Bruce’s unrecorded statements—the subject of Mr.

Bruce’s proposed instruction—the jury was instructed that

it must decide what weight, if any, to give them. The jury

clearly was instructed that the Government had the

burden of proof and that it must acquit Mr. Bruce if the

Government failed to present enough proof to meet its

burden.

Mr. Bruce was not, however, entitled to an instruction of

his own choosing. “We defer to the substantial discretion

of the district court for the specific wording of the instructions, and in rejecting a proposed instruction, so long as the

essential points are covered by the instructions given.”

United States v. Scott, 19 F.3d 1238, 1245 (7th Cir. 1994)

(internal quotations omitted). Mr. Bruce argues, in essence,

that the Wisconsin state law concerning the recording of

interrogations was an “essential point” that was not

covered by the instruction the court gave. We disagree.

Assuming that Detective Rietzler violated state law by
10 No. 07-3675

turning off the recorder, that violation was irrelevant in

this federal case. Federal law, not state law, governs the

admissibility of evidence in federal criminal trials, see, e.g.,

United States v. Wilderness, 160 F.3d 1173, 1175 (7th Cir.

1998), and there is no federal requirement that criminal

interrogations be recorded. Mr. Bruce nevertheless submits

that the purported violation was relevant here because it

casts doubt on the reliability of his unrecorded statements.

However, any relevance the absence of a recording might

have stems from the fact that Detective Rietzler chose to

stop recording the interview—of which the jury was made

aware—not from the presence or absence of a state law

governing recordings.

Mr. Bruce points to our decision in United States v.

Wilderness, 160 F.3d 1173 (7th Cir. 1998), in which we wrote

that “[a]lthough federal courts do not enforce state rules

for evidence gathering, a state law may identify factors that

affect a confession’s voluntariness and reliability and

therefore matter under federal law.” Id. at 1176. However,

Wilderness does not bear on the circumstances before us

today. The issue in that case was the admissibility of the

defendant’s confession at his federal carjacking trial. The

defendant was under the age of eighteen when he confessed. Under Indiana state law, his confession would have

been inadmissible because it was made outside the presence of a parent or an attorney. Federal law imposes no

such limitation, however, and therefore we affirmed the

admission of the confession in Wilderness’ federal criminal

trial. As Mr. Bruce points out, we did note that state

evidence laws may have some relevance in the context of

confessions, and we explained how the state law might be
No. 07-3675 11

relevant in Wilderness’ case: “It is easier to overbear the

will of a juvenile than of a parent or attorney, so in marginal cases—when it appears the officer or agent has

attempted to take advantage of the suspect’s youth or

mental shortcomings—lack of parental or legal advice

could tip the balance against admission.” Id. In other

words, state law might indicate factors to which a federal

judge should pay respectful attention when deciding

whether a confession is admissible. But Wilderness does not

say, or even imply, that federal juries must be allowed

to consider the existence of a state law in determining

how much weight to give to a confession that has been

admitted.

B. Cross-Examination

Mr. Bruce also submits that the district court erred in

preventing him from mentioning the state law during his

cross-examination of Detective Rietzler. We review a trial

court’s limitation of cross-examination for abuse of

discretion. United States v. Neely, 980 F.2d 1074, 1080 (7th

Cir. 1992). As we have explained, the state law was

irrelevant in this federal criminal case. Defendants are not

entitled to cross-examine witnesses on irrelevant matters.

United States v. Jackson, 540 F.3d 578, 591 (7th Cir. 2008)

(“A district judge has wide discretion to impose reasonable limits on cross-examination, and may do so based on

concerns about, inter alia, prejudice, confusion of the

issues, or questioning that is only marginally relevant.”

(citation omitted)). Notably, Mr. Bruce was free to—and

did—fully and freely cross-examine Detective Rietzler
12 No. 07-3675

 We also note that it is far from clear whether Detective 3

Rietzler actually violated the law in the first place. The language

of the statute describes recording as a “policy” rather than a

mandate. Wis. Stat. § 968.073(2). Arguably the Wisconsin

legislature knows how to require recording of interrogations

when it wants to, and it did not do so here. See, e.g., Wis. Stat.

§ 938.195(2)(a) (“A law enforcement agency shall make an audio

or audio and visual recording of any custodial interrogation of

a juvenile that is conducted at a place of detention . . . .”

(emphasis added)). Wisconsin’s own courts appear to be unclear

on this question. Compare State v. Townsend, 746 N.W.2d 493, 494

(Wis. Ct. App. 2008) (“Wisconsin law . . . presently encourages

electronic recording of custodial interviews.”) with State v.

Stefan, 756 N.W.2d 809 (Wis. Ct. App. 2008) ([T]he legislature

enacted legislation mandating the recording of custodial

interrogations.”). But even if the statute does impose a general

recording requirement, the statute also includes six specific

circumstances to which the policy does not apply, see Wis. Stat.

§§ 972.115(2)(a)(1)-(6), as well as a general exception for “good

cause.” Mr. Bruce’s position would require the judge either to

hold a mini-trial on the alleged state law violation, or to allow

the parties to submit sufficient evidence to allow the jury to

weigh whether there was such a violation. We do not believe

that the court was obligated to go so far afield from the central

issues in the case. Accordingly, we hold that the district court’s

rejection of Mr. Bruce’s proposed instruction was proper.

about her decision to turn off the recorder, and to argue to

the jury that this decision rendered Mr. Bruce’s confession

unreliable. The district court did not abuse its discretion by

preventing him from also mentioning the state law.3
No. 07-3675 13

 18 U.S.C. § 3553(a) directs the courts to impose sentences 4

“sufficient, but no longer than necessary”:

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner.

Id. 

C. Sentencing

On December 10, 2007—roughly a month after Mr.

Bruce’s sentencing—the Supreme Court of the United

States announced its decision in Kimbrough v. United States,

___ U.S. ____, 128 S. Ct. 558 (2007). In Kimbrough, the Court

held that a district court may sentence crack offenders to a

term below the Guidelines range if it believes that the

disparity between the Guidelines sentence for a given

amount of crack and the sentence for an equivalent amount

of powder cocaine (often referred to as the “100:1 ratio” or

the “100:1 disparity”) leads to sentences for crack offenders

that fail to “accomplish the purposes of sentencing set forth

in 18 U.S.C. § 3553(a) .” Id. at 565. Prior to Kimbrough, we 4

had held that district courts could not depart from the

Guidelines based on a disagreement with the 100:1 disparity. See United States v. Miller, 450 F.3d 270, 273-76 (7th Cir.

2006), abrogated by Kimbrough, 128 S. Ct. at 574-75. Thus, the
14 No. 07-3675

district court could not have known when it sentenced Mr.

Bruce that it could impose a below-guideline sentence if it

disagreed with the application of the 100:1 disparity in his

case. Mr. Bruce submits that his case should be remanded

for resentencing in light of Kimbrough.

The central question in our review of Mr. Bruce’s sentence is whether he adequately raised the crack-powder

disparity issue with the trial court at sentencing. If he did,

then our review is for abuse of discretion, and we have

held in such cases that the defendant is entitled to a full

remand for resentencing. See United States v. Clanton, 538

F.3d 652, 659 (7th Cir. 2008). If Mr. Bruce did not adequately raise the issue, however, then our review is for

plain error. Under plain error review, Mr. Bruce would be

entitled only to a limited remand for purposes of determining whether the district court would be inclined to

resentence him in light of Kimbrough. See United States v.

Taylor, 520 F.3d 746 (7th Cir. 2008).

Upon examination of the record, we conclude that Mr.

Bruce raised the crack issue sufficiently to merit a full

remand and resentencing. It is true that Mr. Bruce did not

cite specifically the 100:1 disparity as a basis for the trial

court to give him a shorter sentence. To do so, however,

would have been fruitless under the law of the Seventh

Circuit at the time. Recognizing this, we have held in a

similar case that explicit mention of the disparity is not a

prerequisite to resentencing. See United States v. Padilla, 520

F.3d 766, 774 (7th Cir. 2008). The defendant in Padilla, like

Mr. Bruce, was sentenced under Section 2D1.1’s drug

quantity tables for a crack offense. Padilla disputed
No. 07-3675 15

whether the drugs he possessed qualified as crack, but he

did not ask the court to consider the appropriateness of the

100:1 disparity in determining his sentence. Noting that he

“[would not] have stood on sound legal footing in so doing

prior to Kimbrough,” we held that this omission was not

fatal to his request for resentencing:

Padilla did contest before the district court and again

on appeal whether the drugs in question were crack.

We can presume that Padilla’s primary purpose in

disputing the drug type was to avoid the harsh effects

of the crack sentencing disparity, since no other logical

inference exists. In so doing, Padilla preserved the

issue, however obliquely, of whether the district court

could consider the 100:1 sentencing disparity in sentencing.

Id. (emphasis added). The same approach is appropriate

here. Although Mr. Bruce’s counsel did not specifically

mention the crack-powder disparity at the sentencing

hearing, he did invite the court’s attention to the planned

change in the 2007 Guidelines that reduced crack sentences

by two levels. Counsel told the court: “[I]t makes no

difference to the sentencing range but I do want to preserve the crack issue simply to allow further review if that

becomes necessary.” R.102 at 2-3. As the Supreme Court

recognized in Kimbrough, the 2007 amendment was a part

of the Sentencing Commission’s ongoing efforts to

“ameliorat[e]” the 100:1 disparity by bringing crack

sentences closer to sentences for powder cocaine. 128 S. Ct.

at 569. In light of this, it is clear to us that Mr. Bruce’s

purpose in mentioning the crack sentencing issue was “to
16 No. 07-3675

 The Government argues that our decision in United States v. 5

Thomas, 520 F.3d 729, 737 (7th Cir. 2007), establishes that Mr.

Bruce waived his right to argue for a Kimbrough remand by

failing to make that argument before the district court. In

Thomas, however, we declined to consider a Kimbrough remand

because the defendant never asked for one, either before the trial

court or on appeal. Because Mr. Bruce explicitly asked for a

Kimbrough remand in his appellate brief, Thomas is inapposite

here.

avoid the harsh effects of the crack sentence disparity,”

Padilla, 520 F.3d at 774. Consequently, we hold that he

adequately preserved the issue before the district court and

is now entitled to a full remand for resentencing.5

The Government submits that a remand for resentencing

is inappropriate here. The 2007 amendment to the Guidelines decreased the offense level for Mr. Bruce’s crime

from level 38 to level 36. The Government argues that,

because the Commission has declared the amendment

retroactive, Mr. Bruce’s new sentence would be based on

the career offender Guideline level of 37, which would

then be higher than the offense level prescribed by the

drug quantity table. For an offender in Mr. Bruce’s criminal history category, the Guidelines range for offense level

37 is the same as the range for level 38: 360 months to life.

The Government contends that Mr. Bruce can derive no

benefit from a remand because his offense level on

resentencing would be the same. The Government also

submits that he would not be eligible for a departure

based on the 100:1 disparity because we have held that

Kimbrough does not apply to sentences imposed under the
No. 07-3675 17

career offender Guideline, U.S.S.G. § 4B1.1(b). See United

States v. Harris, 536 F.3d 798, 812-13 (7th Cir. 2008); Clanton,

538 F.3d at 660.

The Government’s premise that Mr. Bruce necessarily

will be resentenced under the career offender Guideline is

not self-evident. When Mr. Bruce is resentenced, his

offense level and Guidelines range will be determined by

the Guidelines in effect at the time of his original sentencing. 18 U.S.C. § 3742(g)(1); United States v. Tanner, 544 F.3d

793, 797 (7th Cir. 2008). While it is true that the Sentencing

Commission made the 2007 amendments retroactive, the

decision to apply the retroactivity in any individual case

lies within the sound discretion of the district court. 18

U.S.C. § 3582(c)(2); United States v. Lloyd, 398 F.3d 978, 979

(7th Cir. 2005) (Section 3582(c)(2) “permits” the district

court to reduce a defendant’s sentence “when the Sentencing Commission has reduced the applicable Guidelines

range and made the change retroactive.”). We have no way

of knowing whether the district court will decide to apply

the 2007 amendments retroactively when it resentences Mr.

Bruce. It is the province of the district court to determine,

in the first instance, the proper Guidelines range and the

appropriate sentence for Mr. Bruce. Our task at this stage

is merely to decide whether Mr. Bruce’s original sentence

was imposed erroneously. We conclude that it was.
18 No. 07-3675

Conclusion

For the foregoing reasons, Mr. Bruce’s conviction is

affirmed, but his sentence is vacated and his case is

remanded to the district court for resentencing. 

AFFIRMED in part, VACATED and REMANDED in part

12-18-08