In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-1812

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAURICE C. PITTMAN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01 CR 30108—William D. Stiehl, Judge.

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SUBMITTED JUNE 10, 2005—DECIDED AUGUST 8, 2005

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Before EASTERBROOK, MANION, and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. In December 2002, a federal

court jury convicted Maurice C. Pittman of distributing

approximately 6.3 grams of crack cocaine in violation of 21

U.S.C. § 841(a)(1). The jury also returned a finding that the

amount of controlled substances attributable to Pittman in

the distribution charge was at least 5 grams, but less than

50 grams, of cocaine base. The district court sentenced

Pittman to 390 months’ imprisonment to be followed by a

term of supervised release. On appeal, Pittman challenges
2 No. 03-1812

the district court’s denial of his pretrial motion to suppress,

and the court’s failure to provide a limiting instruction to

the jury. In supplemental briefing to this court, Pittman

also contends that his sentence was unconstitutional. In a

previous opinion in this appeal, we affirmed his conviction

and sentence. That opinion was vacated by the Supreme

Court and the case remanded to this court for reconsideration in light of United States v. Booker, ___ U.S. ___, 125 S.

Ct. 738 (2005), which impacts our determination of the

sentencing issue.

Pittman’s arrest resulted from a traffic stop, the details

of which form the basis of his motion to suppress. On

June 20, 2001, Sergeant Gillespie of the Alton Police

Department, observed Pittman enter a white Cadillac and

begin driving. Gillespie was aware of Pittman’s prior criminal history for robbery, weapons possession, and cocaine

trafficking, and Gillespie had recently received information

that Pittman was distributing cocaine and crack cocaine in

parking lots in Alton. Gillespie placed Pittman’s vehicle

under surveillance, and noticed that the vehicle did not

have a license plate and contained no visible evidence of

registration. He then contacted the police dispatcher and

requested that a uniformed Alton police officer in a marked

patrol car conduct a traffic stop for failure to properly

display a registration tag. While waiting for the officer to

arrive, Gillespie observed Pittman stop in a liquor store

parking lot. Pittman remained in his car with it running,

and Amanda Schoeneweis emerged from a car parked

nearby and entered Pittman’s vehicle. At that time, a

marked Alton patrol car arrived driven by Sergeant

Jonniece Young, who approached Pittman’s car from the

rear. Young testified that she recognized both Pittman and

Schoeneweis, and was aware that both had lengthy criminal

records. Young further testified that she did not see either

a license plate or a temporary tag on the windshield on

Pittman’s vehicle. As she approached the vehicle, she ob-
No. 03-1812 3

served Schoeneweis lean forward positioning herself below

the dashboard, then returning upright to sit back down.

From that behavior, Young suspected that Schoeneweis was

attempting to conceal something. When Pittman was unable

to produce his license and proof of insurance, Young placed

him under arrest. In the subsequent search, she found $200

cash on Pittman, as well as a dollar bill folded in a manner

indicative of use to transport narcotics, which later tested

positive as containing cocaine residue. She also noted that

a valid temporary registration plate was located inside the

front windshield on the driver’s side. 

Schoeneweis was also arrested. She later admitted to

secreting crack cocaine in her body when the officer arrived,

and subsequently removed 6.3 grams of cocaine base from

her body.

Pittman contends that there was no basis for Young to

execute the traffic stop, and therefore that all evidence that

resulted from that stop should have been suppressed. As

support for that, he points to Young’s incident report, in

which Young stated: 

Officer was advised by dispatch that Special Agent

Richard Gillespie was currently following a vehicle, a

1994 Cadillac El Dorado, bearing applied-for Illinois

registration.

Pittman contends that the incident report reveals that

Gillespie must have known that the vehicle bore appliedfor Illinois registration, and therefore that Young had no

basis for the stop. On re-direct, Young acknowledged that

another part of her incident report was inaccurate, in which

Young stated that Gillespie told her that Pittman was en

route to Schmidt Liquor Store. Young in fact spoke only to

the dispatcher and did not have direct contact with

Gillespie. Young also acknowledged that the statement in

the incident report concerning the applied-for plates could

be incorrect as well. Gillespie and Young both testified that
4 No. 03-1812

they did not see the temporary registration prior to the time

Young approached Pittman’s car. The district court found

that because of the placement of only one temporary tag in

the lower front window, neither Gillespie nor Young was

able to see any evidence of registration, and therefore they

both had probable cause to believe that Pittman was

committing a traffic violation. 

Pittman’s motion to suppress rests entirely on its challenge to that fact-finding by the district court. We review

the district court’s determination of probable cause de novo,

but review findings of fact and credibility determinations

for clear error. United States v. Cashman, 216 F.3d 582, 586

(7th Cir. 2000); United States v. Sawyer, 224 F.3d 675, 679

(7th Cir. 2000). The testimony at trial at best establishes a

contradiction in Young’s testimony as to when she learned

that the vehicle bore applied-for tags. Young herself acknowledged that another statement in her incident report

could not have been accurate, and that her statement as to

what the dispatcher conveyed regarding the tags may have

also been incorrect. Pittman repeatedly argues that the

district court was required to credit the statement in the

incident report, because “the only place the dispatcher could

obtain the information in Young’s incident report that

Pittman’s car bore an ‘applied-for Illinois registration’ was

from Gillespie.” That misses the point. The question is

whether Young, in writing the incident report, accurately

conveyed what the dispatcher said, or whether she inadvertently attributed to the dispatcher information (the existence of the applied-for license) that she actually learned

at a later time. Her testimony established that she was

unaware of the registration tags until she approached the

vehicle, and she acknowledged at trial that her incident

report could be incorrect. The determination as to what

actually transpired is a matter within the district court’s

purview, and there is no reason on this record to question

the court’s finding on the matter. The record provides ample
No. 03-1812 5

support for the finding that neither Gillespie nor Young

were aware of the registration tags in the front of the

vehicle at the time of the stop. Therefore, the stop was

lawful, and the court properly denied the motion to suppress.

Pittman next argues that the district court erred in failing

to provide a limiting instruction after admitting, under Fed.

R. Crim. P. 404(b), evidence of Pittman’s prior drug dealings. Rule 404(b) provides that evidence of other crimes or

acts is not admissible to prove the character of the person

in order to demonstrate action in conformity therewith, but

it may be admissible for other purposes including, inter

alia, proof of motive, opportunity, or intent. In this case, the

government introduced evidence of past drug dealing by

Pittman through testimony by Schoeneweis and by Drug

Enforcement Agency (DEA) Agent Harold Watson.

Schoeneweis testified without objection to her prior drug

dealings with Pittman. She was also asked by the government for the identity of other persons to whom Pittman sold

drugs. Over defendant’s objection, she provided two names

and acknowledged that there could be others. DEA Agent

Watson testified regarding Pittman’s confession. Asked if

Pittman provided any information about his drug dealing

history, Watson named several suppliers going back to

1992. 

In response to the testimony by Schoeneweis and Watson,

Pittman offered an instruction to limit the jury’s use of the

Rule 404(b) evidence. The district court refused the instruction, holding that the other acts evidence was intricately

related to the charge in the indictment, and that the

statements by Pittman were an admission against interest.

In this appeal, Pittman first clarified that he is not challenging the admission of the evidence of drug dealing with

individuals other than Schoeneweis. He is only arguing that

a limiting instruction should have been given. Moreover, he

does not challenge the testimony from Schoeneweis of her
6 No. 03-1812

prior drug dealings with Pittman. Pittman concedes on

appeal that her drug dealings with Pittman were intricately

related to the charge in the indictment, and therefore are

not considered Rule 404(b) evidence. Therefore, his challenge is limited to the contention that the district court

erred in failing to give a limiting instruction regarding

evidence of drug deals that did not involve Schoeneweis.

We need not consider whether a limiting instruction was

required, because even if the failure to provide the instruction was error, it was harmless. The submission of an

incorrect jury instruction is harmless error if a properly

instructed jury would have returned the same verdict.

United States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001).

That standard is met here. The evidence of Pittman’s guilt

was overwhelming. Officer Gillespie observed Pittman pull

into the parking lot and wait while Schoeneweis joined him

in the car. DEA Agent Watson testified as to Pittman’s

confession that Pittman in fact provided the crack cocaine

to Schoeneweis in the car, which Schoeneweis secreted in

her body, and that she paid him $130 or $140 for it. The

search incident to the arrest found $200 cash on his person,

as well as a dollar bill folded in a manner often used to

carry crack, and with visible residue of crack cocaine on it

that tested positive in a lab. Furthermore, Schoeneweis, in

her testimony, confirmed the details of that drug transaction, and Officer Young observed movements by

Schoeneweis consistent with someone attempting to hide

drugs in her body. Schoeneweis subsequently removed

6.3 grams of cocaine base from her body after the arrest.

Finally, Schoeneweis testified at length as to her history of

drug deals with Pittman. In light of that evidence, the

testimony that Pittman also engaged in drug dealing with

other persons is insignificant. Pittman does not challenge

the voluntariness of his confession. In light of the overwhelming evidence of Pittman’s guilt, the failure to provide

a limiting instruction as to the other acts evidence was

harmless. 
No. 03-1812 7

Pittman attempts to avoid that conclusion by arguing that

the error was a structural one, not subject to the harmless

error analysis. As support, he cites our decision in United

States v. Harbin, 250 F.3d 532 (7th Cir. 2001). Harbin in

fact requires the opposite conclusion. In Harbin, we recognized that some errors affect the framework in which the

trial proceeds which render the criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or

innocence, and are therefore reversible error per se. Id. at

542-43. Such “structural” errors are few in number, including errors such as the complete denial of counsel, a biased

judge, racial discrimination in the selection of the grand

jury, the denial of self-representation, the denial of a public

trial, and a defective reasonable doubt instruction. Id. at

543. We also cautioned in Harbin, however, that most

errors during a trial do not fall within that category. In

particular, we noted that trial errors occurring during the

presentation of the case to the jury are generally amenable

to harmless error analysis because they may be quantitatively assessed in the context of the evidence as a whole. Id.

at 544. The alleged error in denying a limiting instruction

is precisely such a “trial error.” Even assuming that the

jury, in the absence of a limiting instruction, used the other

acts evidence for an impermissible purpose, we can assess

whether the jury beyond a reasonable doubt would have

returned the same verdict in light of the other evidence

properly before it. Because the impact of that error on the

trial is capable of assessment at this stage, and the error

did not affect the framework in which trial proceeded or the

fundamental integrity of the trial process, it does not

require automatic reversal. We have already concluded that

the provision of the allegedly improper instruction was

harmless error.

Finally, Pittman alleges that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000)

and Blakely v. Washington, 524 U.S. 296 (2004), as inter-
8 No. 03-1812

preted by United States v. Booker, 375 F.3d 508 (7th Cir.

2004). Our decision in Booker has since been affirmed by

United States v. Booker, 125 S. Ct. 738 (2005). Those cases

hold that a defendant has the right to have a jury decide

factual issues that will increase the defendant’s sentence.

Booker, 125 S. Ct. at 756; United States v. Shearer, 379 F.3d

453, 457 (7th Cir. 2004). Specifically, the Supreme Court in

Booker made clear that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established

by a plea of guilty of a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.”

125 S. Ct. at 756. 

First, Pittman argues that the district court improperly

determined that he was responsible for 251 grams of

cocaine base whereas the jury convicted him of possession

with intent to distribute 6.3 grams and returned a special

finding that he distributed at least 5 but less than 50 grams

of crack cocaine. That type of determination of drug quantity as a part of relevant conduct is the type of error that

has led to reversal of other sentences under Blakely and

Booker. In this case, however, the court’s conclusion regarding drug quantity were irrelevant to his sentence, because

his sentence was based not on that relevant conduct, but

rather on the court’s determination that he was a career

offender. His status as a career offender yielded an offense

level of 37 which is higher than the offense level of 34 that

his relevant conduct produced. Accordingly, his sentence

was based on the career offender determination rather than

the relevant conduct determination of drug quantity.

A defendant is considered a career offender under the

Guidelines if:

(1) the defendant was at least 18 years old at the time

the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that
No. 03-1812 9

is either a crime of violence or a controlled substance

offense; and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a

controlled substance offense. 

U.S.S.G. § 4B1.1(b). The jury conviction in this case

established the second factor, but Pittman argues that the

jury did not find, and he did not admit, that he was at least

18 years of age at the time of this conviction and that he

had two prior felony convictions for possession of a controlled substance. Pittman acknowledges that he failed to

raise this argument, or any similar argument in the district

court, and therefore that his challenge should be reviewed

for plain error. 

We first consider Pittman’s challenge to the use of the two

prior felony convictions. In Almendarez-Torres v. United

States, 523 U.S. 224, 244 (1998), the Supreme Court held

that prior felony convictions were sentencing factors that

need not be charged in an indictment nor proven beyond a

reasonable doubt because they are not elements of the

charged offense. That decision has not been overruled by

Apprendi, Blakely, or Booker. See United States v. Williams,

410 F.3d 397, 402 (7th Cir. 2005) (concluding that

“[w]hatever commonalities a prior conviction might have

with factors that the Court has since held must be proven

to a jury, the Court’s opinions in Apprendi, Blakely, and

Booker have left the holding of Almendarez-Torres undisturbed.”); United States v. Schlifer, 403 F.3d 849, 852 (7th

Cir. 2005). Even post-Booker, then, evidence of a prior

conviction that would increase the statutory maximum does

not need to be submitted to a jury, and therefore the district

court did not err in considering the prior felony convictions.

We note that even absent Almendarez-Torres, Pittman’s

argument would fail because he in fact admitted to those

two prior convictions at the sentencing hearing. See Booker,

125 S. Ct. at 756 (judge may impose sentence based on facts

admitted by the defendant as well as those found by the

jury).
10 No. 03-1812

The remaining factor is whether Pittman was at least 18

years of age at the time of the instant offense. As we noted,

Booker requires that any fact necessary to support a sentence must be either established by a guilty plea or a jury

verdict, or admitted by the defendant or proved to a jury

beyond a reasonable doubt. Booker, 125 S. Ct. at 756;

Schlifer, 403 F.3d at 853. The government argues that

Pittman admitted that he exceeded that age threshold

because the presentence report (PSR) included his age and

Pittman’s attorney acknowledged that there were no factual

errors in the PSR. We need not tarry with whether that is

a sufficient “admission,” because even if it were not, this

could not survive harmless error review let alone plain

error review. Pittman does not assert that he was actually

less than 18 years of age at the time of the offense, only

that the jury rather than the judge should have determined

his age. His argument, then, is that the proper procedures

were not followed, but he never argues that the result

would be different. That fails to meet the plain error

standard in that there is not even an allegation that the

alleged error “affected substantial rights and seriously

affected the fairness, integrity, or public reputation of the

judicial proceedings.” United States v. Stotts, 323 F.3d 520,

522 (7th Cir. 2003). In fact, it would fall short under harmless error review as well. The alleged error could not have

impacted the outcome of the sentencing, and therefore

Pittman is entitled to no relief on that claim.

Pittman has one remaining claim, however. In Booker, the

Supreme Court invalidated the mandatory application of

the Guidelines, holding that district courts are obligated to

consider them but are not bound by them. 125 S. Ct. at 767.

That decision applies to all cases pending on direct review,

and accordingly it was error for the district court to treat

the Guidelines as binding. Because the issue was not raised

below, Pittman must establish not only error, but plain

error, in order to obtain relief, which requires a showing
No. 03-1812 11

that the error in treating the Guidelines as mandatory

affected his substantial rights. Williams, 410 F.3d at 403-

04. The record provides no answer to whether the district

court might have sentenced him to a lesser sentence had it

known of the advisory nature of the Guidelines, and

therefore whether the error was one affecting his substantial rights. See United States v. Paladino, 401 F.3d 471, 483

(7th Cir. 2005). In accordance with Booker, we must remand

the case to the district court for that determination. If the

district court indicates that it would be inclined to impose

a lesser sentence, then Pittman will have demonstrated

plain error, and we will vacate the sentence and remand for

resentencing. Williams, 410 F.3d at 404; Paladino, 401 F.3d

at 484. On the other hand, if the district court determines

that it would not be inclined to impose a lower sentence

given the advisory nature of the Guidelines, we will consider only whether the sentence was plainly erroneous in

the sense of being unreasonable. Williams, 410 F.3d at 404;

Paladino, 401 F.3d at 484.

Accordingly, we affirm Pittman’s conviction and find no

plain error in the court’s findings as to his age and prior

convictions. Because the district court sentenced Pittman

believing that the Guidelines were binding rather than

advisory, we order a limited remand for the district court to

determine whether it would be inclined to sentence Pittman

to a lesser sentence given that discretion. We retain

appellate jurisdiction pending the outcome of this remand.
12 No. 03-1812

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-8-05