Circuit Judge Evans died on August 10, 2011, and did not 

participate in the decision of this case, which is being

resolved by a quorum of the panel under 28 U.S.C. § 46(d).

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1446

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HOWARD BAKER,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 09 CR 20055—Michael P. McCuskey, Chief Judge.

ARGUED APRIL 1, 2011—DECIDED AUGUST 23, 2011

Before EASTERBROOK, Chief Judge, and BAUER and

EVANS , Circuit Judges.



BAUER, Circuit Judge. A jury convicted defendant-appellant Howard Baker of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
2 No. 10-1446

and (b)(1)(B), and he was sentenced to 360 months’ imprisonment. Baker challenges the district court’s admission of evidence under Federal Rule of Evidence 404(b),

the sufficiency of the evidence used to prove possession,

and his sentence. For the following reasons, we affirm

Baker’s conviction and sentence.

I. BACKGROUND

On the night of July 24, 2009, Champaign Police Department Officers Chris Aikman and Heidi Van Antwerp

were in the area of a reported battery when they spotted

Baker, who matched the description of the battery suspect. The uniformed officers parked their marked

squad cars and walked into the front yard of 210 East

Hill Street, where Baker was talking on a cell phone

and eating a plate of food. Officer Aikman asked Baker

to come talk to him, and Baker walked over to the

officers and voluntarily handed over his identification.

Officer Aikman then told Baker that he was going to

pat him down and reached for his arm, at which

point Baker began running westbound on the sidewalk.

Officers Aikman and Van Antwerp chased Baker, with

Officer Aikman just a few feet behind Baker and within

sight the entire time. Officer Aikman caught up to

Baker on the west side of 204 East Hill Street and

tackled him onto a fence that runs between 204 East Hill

Street and 202 East Hill Street, causing the fence to collapse. Baker regained his footing after being tackled

and began running east along Hill Street, following

the same path as the initial chase. Baker ran back to
No. 10-1446 3

210 East Hill Street and started to enter the house when

Officer Aikman tackled Baker a second time, this time

bringing him down and handcuffing him.

After walking Baker to the squad car, Officer Aikman

went back along the chase route to the portion of fence

that had collapsed during the struggle and saw two

baggies on the ground. The baggies contained 21.9 and

4.4 grams of crack cocaine, later stipulated to be 25.2

grams of crack cocaine. Baker denied that the baggies

were his and his fingerprints were not found on them.

Baker was charged with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B).

A. Testimony at Trial

At trial, the government introduced testimony from

the arresting officers, an expert witness, and Baker’s

occasional girlfriend, Trena Keomala, who testified

under a grant of immunity. Keomala’s testimony can be

classified into two categories, one of which is at issue

in this appeal and one of which is not. First, Keomala

testified that she spoke to Baker on the night of the

offense before his arrest and that Baker informed her

that he was on the “Hill” (210 East Hill Street) because

that was where he “made his money.” When Keomala

asked whether Baker had any crack cocaine for her to

sell, Baker responded that he had only enough crack

cocaine for himself. Keomala also testified that the day

following Baker’s arrest, Baker related the previous evening’s events, telling her that right before his arrest he
4 No. 10-1446

had been standing outside 210 East Hill, “posted up”;

Keomala explained that “posted up” is slang for waiting

to exchange drugs for money. That part of Keomala’s

testimony is not at issue on appeal.

Second, Keomala testified that since late 2006, she

has routinely received crack cocaine from Baker, which

she would sell and Baker would receive the proceeds,

and that she had received crack cocaine from Baker to

sell just days before Baker’s arrest. This testimony is at

issue on appeal and is disputed.

B. Rule 404(b) Evidence

Before trial, the government filed a notice of intent to

call an informant who would testify that Baker had distributed crack cocaine to him for resale on prior occasions. The government did not include Keomala’s disputed testimony in this notice, even though she too

would testify that Baker distributed crack cocaine to her

for resale. In response to the notice of intent, defense

counsel filed a motion to bar all Rule 404(b) evidence.

The judge denied this motion. Subsequently, when

Keomala was called as a witness at trial, the judge mistakenly believed that Keomala had been included in

the Rule 404(b) notice of intent and related defense

motion, which had been denied, and he therefore permitted her to testify for the limited purpose of proving

Baker’s intent and knowledge under Rule 404(b). Defense counsel did not object. The district court then

twice gave the jury a limiting instruction on the proper

use of the evidence for the limited purpose of intent

and knowledge.
No. 10-1446 5

C. The Verdict and Sentencing 

The jury found Baker guilty of possession with intent

to distribute crack cocaine. The district court applied a

career offender designation to Baker based on two prior

felony convictions for unlawful delivery of a controlled

substance. After examining Baker’s criminal history

and considering the § 3553 sentencing factors, the district court sentenced Baker at the bottom of the Guidelines range to 360 months’ imprisonment.

II. DISCUSSION

A. Rule 404(b) Evidence

When the government introduced evidence of Baker’s

prior drug distributions to Keomala to prove intent and

knowledge, Baker objected on the grounds of lack of

foundation. On appeal, Baker raises an objection for the

first time under Federal Rule of Evidence 404(b). We

review the issue for plain error. Johnson v. United States,

520 U.S. 461, 466-67 (1997); see Fed. R. Crim. P. 52(b).

Under this standard of review, we determine whether

there was (1) an error, (2) that was plain, (3) that affected

the defendant’s substantial rights, and (4) that seriously

affected the fairness, integrity, or public reputation of

judicial proceedings. Johnson, 520 U.S. at 467. An error

occurs if a legal rule has been violated during the

district court proceedings. United States v. Gibson, 170

F.3d 673, 678 (7th Cir. 1999). Plain error affects the substantial rights of the defendant if the error was

prejudicial, meaning that the error “affected the outcome
6 No. 10-1446

of the district court proceedings.” Id. at 678 (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)). The defendant bears the burden of persuasion with respect to

showing prejudice. Id. The decision to correct an error

lies within the sound discretion of this court, and we

do not exercise that discretion unless the error seriously

affects the fairness, integrity, or public reputation of

the judicial proceeding. Id.

We first determine whether the admission of

Keomala’s testimony about Baker’s prior bad acts constituted error under Rule 404(b). We conclude no such

error occurred.

Rule 401 defines relevant evidence as “evidence

having any tendency to make the existence of any fact

that is of consequence . . . more probable or less probable

than it would be without the evidence.” Fed. R. Evid. 401.

Rule 402 then states that all relevant evidence is generally admissible unless there is a reason for its exclusion. Fed. R. Evid. 402.

The relevance of Keomala’s testimony is apparent.

Following his arrest, Baker denied that he knowingly

possessed the baggies of crack cocaine on the night he

was arrested and also denied that he possessed the

crack cocaine with intent to deliver it. Testimony regarding other instances in which Baker possessed crack

cocaine with the intent to deliver it is relevant to

Baker’s intent and knowledge. See United States v. Conner,

583 F.3d 1011, 1021-22 (7th Cir. 2009) (“In drug cases, we

have often found a defendant’s other drug transactions

relevant for purposes other than propensity, such as
No. 10-1446 7

knowledge, intent, and lack of mistake.”); United

States v. Curry, 79 F.3d 1489, 1495-96 (7th Cir. 1996)

(finding that in a case where the defendant denied possessing a baggie containing crack cocaine that was

dropped into a bush, evidence from witnesses who had

previously purchased crack cocaine from the defendant

was relevant and properly admitted); United States v.

Wilson, 31 F.3d 510, 515 (7th Cir. 1994) (finding that evidence of prior drug transactions showed that the

defendant “was familiar with the cocaine business and

was not some innocent bystander ‘mistakenly caught up

in an overzealous law enforcement’ ”).

Rule 404(b) is a rule of exclusion. It states that evidence

of a defendant’s prior bad acts is not admissible if

entered simply to show the defendant’s propensity to

commit the crime with which he is charged. Fed. R. Evid.

404(b). The evidence may, however, be admissible to

establish “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”

We employ a four-part test to determine whether evidence of prior conduct is admissible under Rule 404(b),

taking into consideration the following factors: (1) the

evidence is directed toward establishing a matter in

issue other than the defendant’s propensity to commit

the crime charged; (2) the evidence shows that the other

act is similar enough and close enough in time to be

relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of

the evidence is not substantially outweighed by the

danger of unfair prejudice. United States v. Shackleford,

738 F.2d 776, 779 (7th Cir. 1984).
8 No. 10-1446

Rule 403 is also an exclusionary rule; it provides for

the exclusion of relevant evidence that is unfairly prejudicial to the defendant. Fed. R. Evid. 403. “Evidence

is unfairly prejudicial only if it will induce the jury to

decide the case on an improper basis, commonly an

emotional one, rather than on the evidence presented.”

United States v. Zahursky, 580 F.3d 515, 525 (7th Cir.

2009) (citing United States v. Harris, 536 F.3d 798, 809 (7th

Cir. 2008)).

Baker argues that the trial court never considered the

Shackleford four-part test or performed a balancing test

for prejudice before allowing Keomala to testify. While

Baker faults the district court for failing to orally recite

its Rule 403 and Rule 404(b) findings, a district court is not

under an obligation to make every evidentiary ruling

orally; had Baker wanted an oral ruling, he should have

objected on Rule 403 and Rule 404(b) grounds. Given

this lack of action, it is easy to see why the district court

did not undertake the oral analysis of Keomala’s testimony that Baker now desires.

Nevertheless, we do believe that this evidence satisfies

the four-part test, though Baker specifically takes issue

with the second and fourth factors. With regard

to the second factor, Baker contends that because

there was “no evidence” of the type of drug sales he was

engaged in at the time of his arrest, there is no way of

knowing whether his tender of drugs to Keomala was

similar enough to the activity for which he was arrested

and found guilty. This argument is wholly without merit.

Keomala testified that Baker supplied her with crack

cocaine. Here, Baker was charged with possession
No. 10-1446 9

with intent to distribute crack cocaine. These acts are

substantially similar.

As to the fourth factor, we conclude that the probative

value of this evidence was not substantially outweighed

by the danger of unfair prejudice. It is well-established

that when a defendant is charged with a specific

intent crime, prior bad acts may be admitted if the act

demonstrates how the defendant’s behavior was purposeful. E.g., Curry, 79 F.3d at 1495. Because Baker

denies intent, this evidence is highly probative on that

element. Although evidence of prior drug dealings may

be prejudicial to Baker, it is not unfairly prejudicial.

Moreover, where evidence is of probative value, as it is

here, the danger of unfair prejudice was effectively handled through the use of a proper limiting instruction,

which the district court twice provided to the jury. See

United States v. Macedo, 406 F.3d 778, 793 (7th Cir. 2005).

Moreover, the admission of this evidence did not

affect Baker’s substantial rights—the third condition

under the plain error standard. Even without the admission of the disputed testimony about Baker’s prior drug

dealings, the government offered a considerable amount

of other evidence to convict Baker, such as the arresting

officers’ testimony, Keomala’s direct evidence testimony, and the expert testimony. See infra Part C. Baker

has therefore failed to satisfy the three conditions necessary to demonstrate plain error, and we conclude that

the admission of Keomala’s testimony passes muster.
10 No. 10-1446

Section 3553(a) states that a sentencing court must impose a 1

minimally sufficient sentence that: (1) considers the nature

and circumstances of the present offense and the defendant’s

history; (2) reflects the seriousness of the offense; (3) promotes respect for the law; (4) provides just punishment for

the offense; (5) affords adequate deterrence to criminal conduct;

(6) protects the public from further crimes by the defendant;

and (7) provides the defendant with needed treatment, training,

or care. 18 U.S.C. § 3553(a).

B. Reasonableness of the Sentence

Baker next argues that the sentencing court failed

to properly consider and apply all of the sentencing

factors and that his 360-month sentence is unreasonably

long. We disagree.

Whether the district court followed proper procedures

in imposing a sentence as prescribed in United States v.

Booker, 543 U.S. 220 (2005), is a question of law we

review de novo. United States v. Smith, 562 F.3d 866, 872

(7th Cir. 2009). The Supreme Court in Gall v. United States,

552 U.S. 38 (2007), described the procedure that a sentencing court is required to follow. First, the sentencing

court must correctly calculate the applicable Guidelines

range. Gall, 552 U.S. at 39. Then, after giving both parties

an opportunity to argue for the sentence they deem

appropriate, the sentencing judge should consider

all the § 3553(a) factors. Id. at 49. After deciding on the 1

appropriate sentence, the sentencing court must adequately explain the chosen sentence. Id. at 50. “The

district court need not address each § 3553(a) factor in

checklist fashion, explicitly articulating its conclusion
No. 10-1446 11

for each factor; rather, the court must simply give an

adequate statement of reasons, consistent with § 3553(a),

for believing the sentence it selects is appropriate.”

United States v. Panaigua-Verdugo, 537 F.3d 722, 728 (7th

Cir. 2008).

Once we are satisfied that the district court committed

no procedural error, we review the substantive reasonableness of the sentence under the abuse of discretion

standard. United States v. Coopman, 602 F.3d 814, 819

(7th Cir. 2010). A within-Guidelines sentence is entitled

to a presumption of reasonableness. Rita v. United States,

551 U.S. 338, 347 (2007).

Baker argues that the district court did not expressly

discuss the seriousness of his present offense, and to the

degree that the judge did so, the judge improperly considered the seriousness in light of Baker’s prior convictions. Ultimately, this argument amounts to Baker’s

dissatisfaction with his increased sentence because of

his career offender enhancement, which was properly

applied and not challenged during the sentencing

hearing or on appeal. Section 3553(a) and the career

offender guidelines encourage judges to consider “the

nature and circumstances of the offense and the history

and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1)

(emphasis added). The district court’s fairly lengthy

discussion of Baker’s previous convictions—all similar

drug convictions—was not error. In sentencing Baker at

the bottom of the advisory Guideline range, the district

court sufficiently analyzed the § 3553(a) factors and

explained its reasoning behind the sentence, including

a consideration of the seriousness of Baker’s offense.
12 No. 10-1446

While the district court may not have expressly

addressed each § 3553(a) factor, it was not required to

do so.

Baker has not presented an argument that overcomes

the rebuttable presumption of reasonableness of his

within-Guidelines sentence. While Baker expresses that

“it is hard to conceive of a more outrageous and direct

assault on the most basic concepts of justice” regarding

his thirty-year prison sentence, we believe that this sentence is reasonable given that the defendant has made a

lifelong career out of drug dealing. The district court did

not abuse its discretion in sentencing Baker to a withinGuidelines sentence. 

C. Sufficiency of Evidence

Baker finally argues that the government produced no

evidence to prove the possession charge. We give a jury

verdict great deference and will uphold the verdict if,

viewing the evidence in the light most favorable to the

government, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt. United States v. Hicks, 368 F.3d 801, 804-05 (7th

Cir. 2004). We will not re-weigh the evidence or second

guess the jury’s credibility determinations. United States

v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006).

Baker argues that because there was no testimony from

any person who actually saw him with the baggies of

drugs, no rational trier of fact could have found beyond a

reasonable doubt that the baggies were ever in Baker’s
No. 10-1446 13

possession. He also points out that his fingerprints were

never found on the baggies.

Viewing the evidence in the light most favorable to the

government, a reasonable jury could have found that

Baker was in possession of the baggies of crack cocaine

and dropped those baggies while fleeing from the police.

The arresting officers testified that although he was

compliant at first, Baker immediately fled from the

officers in response to Officer Aikman’s movement to pat

him down to search for weapons or drugs. Officer Aikman

testified that Baker was within his sight during the

entire chase and, though he could not see Baker’s hands

the entire time, Baker appeared as though he was attempting to retrieve something from his front pants

pocket as they were approaching the fence. When Officer

Aikman immediately returned to the area where he

had tackled Baker along the collapsed fence, he quickly

spotted the two baggies on the ground. Baker ignores

Keomala’s testimony almost entirely. Even setting aside

the disputed prior bad acts evidence, Keomala testified

that Baker told her he was on the “Hill” the night of his

arrest “posted up,” and explained that she understood

this to mean that he was waiting to exchange drugs for

money. Additionally, Office Jack Turner, an expert witness in the distribution of crack cocaine, testified that

25.2 grams of crack cocaine is “a distribution sized

amount.” See United States v. Maholias, 985 F.2d 869, 879

(7th Cir. 1993) (“intent to distribute can be inferred from

the possession of a quantity of drugs larger than needed

for personal use”). Between the arresting officers’ testimony, Keomala’s testimony regarding what Baker told
14 No. 10-1446

her both before and after his arrest, and the quantity of

drugs found, the government presented enough direct

and circumstantial evidence that a reasonable jury

could have found Baker guilty.

III. CONCLUSION

For the reasons set forth above, we AFFIRM Baker’s

conviction and sentence.

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