In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1494

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JERRY STRAHAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05 CR 30027—David R. Herndon, Chief Judge.

ARGUED APRIL 15, 2008—DECIDED MAY 15, 2009

Before CUDAHY, KANNE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Jerry Strahan was convicted by a

jury of conspiracy to distribute cocaine base and distribution of cocaine base and was sentenced to life in prison,

the mandatory sentence based on his two prior felony

drug convictions. See 21 U.S.C. § 841(b). Strahan appeals

his convictions and sentence, arguing that the district court should have instructed the jury on his publicauthority defense. He also challenges the sufficiency of

the evidence against him and the constitutionality of the
2 No. 07-1494

mandatory life term under the Sixth and Eighth Amendments.

We affirm. The evidence was insufficient to support a

public-authority defense and easily sufficient to support

the jury’s verdict of guilty on both counts. Strahan’s

constitutional challenges to his sentence run contrary to

Supreme Court caselaw. A mandatory-minimum sentence based on judge-found facts regarding prior felony

drug convictions does not violate the Sixth Amendment,

and a life term based on recidivism is not cruel and

unusual punishment in violation of the Eighth Amendment.

I. Background

Jerry Strahan delivered drugs for Johnny McCray Jr.,

who ran a drug-distribution operation out of a house on

College Street in East St. Louis, Illinois. McCray Jr. sold

mainly heroin and crack cocaine, and employed at least

three others to help serve his customers: his father, Johnny

McCray Sr.; Mitchell Brown; and Strahan. All three were

drug users, and McCray Jr. paid them for their work in

both drugs and money.

Strahan had been involved with this group as far back

as 1996, when he was caught trying to buy drugs from a

drug house run by the McCrays and Eugene Falls, a

coconspirator. He was making drug deliveries for the

group in 1999 when he was arrested again. This time

he cooperated with the government. It was this prior

association that led Deputy U.S. Marshal Tom Woods to
No. 07-1494 3

ask Strahan in 2003 if he knew the whereabouts of McCray

Sr. or Cortez McCray (Johnny McCray Sr.’s other son). Both

were wanted on arrest warrants. Strahan later contacted

Deputy Woods with information that led to the arrest of

both McCrays, and he was put on Woods’s payroll as a

confidential informant.

The activity at the College Street residence soon drew

the attention of other law-enforcement officials. Officer

Brian Gimpel of the O’Fallon Police Department, who

was deputized to the FBI, was approached by Richard

Baker, a confidential informant, with information about

the McCray drug operation on College Street. Officer

Gimpel specialized in controlled purchases of narcotics

and arranged for Baker to buy crack cocaine from Falls

at the College Street house. Gimpel also used Joe

Mitchell, another informant, to make multiple controlled drug buys at the College Street house. Each transaction was recorded using a device worn by Baker or

Mitchell. On the strength of these recordings, Officer

Gimpel obtained a search warrant for the McCray drug

house.

Based on the evidence collected in the search, a grand

jury returned an indictment charging both McCrays,

Brown, Falls, and Strahan with conspiracy to distribute

crack cocaine and heroin in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A), and 846. Strahan was also

charged with violating 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B) by distributing cocaine base on September 29,

2004. Because Strahan had two prior state convictions for

delivery of controlled substances, the government filed
4 No. 07-1494

notice pursuant to 21 U.S.C. § 851 that it would seek

enhanced punishment under 21 U.S.C. § 841(b). All of the

coconspirators, save Strahan, pleaded guilty to the

charges, and the coconspirators agreed to testify against

Strahan.

In advance of trial, Strahan gave notice pursuant to

Rule 12.3 of the Federal Rules of Criminal Procedure that he

intended to offer a “public authority” defense based on

his interactions with Deputy Woods. In response the

government denied that Strahan was acting pursuant to

public authority when he committed the charged acts

and notified Strahan and the district court that it would

call Deputy Woods to testify in opposition to Strahan’s

public-authority defense.

At trial Deputy Woods testified that he “does not do

controlled [drug] buys” and that his contact with Strahan

was limited to obtaining information about the whereabouts of persons for whom there were active arrest

warrants. Strahan took the stand and testified in his

own defense; he admitted being a drug user but denied

any involvement in the McCray drug conspiracy operated

out of the College Street house. He said he knew

Deputy Woods but denied giving him information

about drug dealing at the College Street house. In

response to a question about whether he thought he

had authority to engage in the drug-trafficking activity

alleged against him because Woods told him so, Strahan

responded, “No, that’s not correct, I wasn’t doing what

is alleged in this case.”

At the close of evidence, Strahan asked the district court

to issue a public-authority instruction to the jury, arguing
No. 07-1494 5

that he believed he was authorized by Deputy Woods to

sell narcotics. The court refused to do so. The judge

noted Strahan’s own testimony flatly denying any involvement in drug dealing and the complete lack of

evidence that Woods ever led Strahan to believe he

could distribute drugs as part of his role gathering information on the whereabouts of fugitives. The jury

found Strahan guilty of both counts.

Because of Strahan’s previous drug convictions, he

was classified as a career offender under the sentencing

guidelines, pushing his offense level to 37 and his

criminal history category to VI. That yielded an advisory

guidelines range of 360 months to life in prison for both

counts. But because of Strahan’s two previous convictions for state drug felonies, the statutory minimum for

the conspiracy count was life in prison. 21 U.S.C. § 841(b).

The court imposed a sentence of life on the conspiracy

count and a concurrent 360 months on the crack-distribution count. Strahan appealed, challenging both his convictions and sentence.

II. Discussion

A. Public-Authority Defense

At the close of the evidence, Strahan requested a jury

instruction on the public-authority defense, arguing that

if the jurors disbelieved his testimony that he did not

take part in the conspiracy, he was entitled to defend on

the basis that his actions were the result of a reasonable

belief that he was authorized by Deputy Woods to sell
6 No. 07-1494

narcotics in connection with his work as a confidential

informant. The district court declined to give the

requested instruction, finding that the public-authority

defense was not supported by the evidence.

Our review of a district court’s refusal to give a theoryof-defense jury instruction is de novo. United States v. Van

Allen, 524 F.3d 814, 832 (7th Cir. 2008). A criminal defendant is entitled to such an instruction only if there is

evidentiary support for it. Id.; see also United States v.

Millet, 510 F.3d 668, 675 (7th Cir. 2007).

The public-authority defense is closely related to

another affirmative defense, entrapment by estoppel.

United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006)

(noting that “[t]he elements that comprise the two

defenses are quite similar”); see also United States v. Neville,

82 F.3d 750, 761 (7th Cir. 1996) (noting that “ ‘public authority’ [is] sometimes called ‘entrapment by estoppel’ ”). We

have recently clarified the distinction between the two

defenses: “[I]n the case of the public authority defense,

the defendant engages in conduct at the request of a

government official that the defendant knows to be

otherwise illegal, while in the case of entrapment by

estoppel, because of the statements of an official, the

defendant believes that his conduct constitutes no offense.” United States v. Jumah, 493 F.3d 868, 874 n.4 (7th

Cir. 2007) (citing 53 AM. JUR. PROOF OF FACTS 3D 249 Proof

of Defense of Entrapment by Estoppel § 20 (1999)). In other

words, the public-authority defense requires reasonable

reliance by a defendant on a public official’s directive to

engage in behavior that the defendant knows to be
No. 07-1494 7

illegal. Id.; see also United States v. Cao, 471 F.3d 1, 4 (1st

Cir. 2006). In contrast, a defendant who believed his

conduct legal because of an official’s statement of the

law may assert an entrapment-by-estoppel defense. Jumah,

493 F.3d at 874 n.4; see also United States v. Apperson, 441

F.3d 1162, 1204 (10th Cir. 2006). Strahan’s situation is

the former; he maintains that he was entitled to argue

that he engaged in illegal drug trafficking at the behest

of Deputy Woods, not that he relied on Woods’s statement that such conduct was actually lawful.

Here, the district court’s refusal to instruct the jury

on the public-authority defense was manifestly correct.

No witness—not even Strahan—testified that Deputy

Woods ever instructed or authorized Strahan to

distribute crack cocaine. It is true that Woods used

Strahan as a confidential informant, but their interaction

was limited to Strahan helping Woods find fugitives.

Indeed, Deputy Woods testified that he “didn’t do controlled buys.” Strahan’s own testimony eliminated any

possibility of a public-authority defense. When asked

by the prosecutor if Deputy Woods had ever authorized

him to sell drugs as part of his interaction with Woods

as an informant, Strahan responded, “He never said I

could sell drugs, no.” He later added that he had never

asked Woods for permission to do so either. Strahan was

plainly not entitled to a public-authority instruction;

the defense was utterly unsupported by the evidence.

B. Sufficiency of the Evidence

Strahan also argues that the evidence was insufficient to

convict him on either count. We will overturn the verdict
8 No. 07-1494

on this basis only if, viewing the evidence in the light

most favorable to the government, there is “ ‘no evidence,

no matter how the evidence is weighed, from which the

jury could have found guilt beyond a reasonable doubt.’ ”

United States v. Burke, 425 F.3d 400, 415 (7th Cir. 2005)

(quoting United States v. Albarran, 233 F.3d 972, 975 (7th

Cir. 2000)).

The record is overflowing with evidence of Strahan’s

guilt. Johnny McCray Jr. testified that Strahan helped him

sell drugs from the College Street house in late 2003 and

through most of 2004. According to McCray Jr., Strahan

was responsible for answering a prepaid cell phone used

to take drug orders and would also deliver drugs when

necessary. He also testified about a letter sent to him

from jail by his father, Johnny McCray Sr., in December

2004. In the letter McCray Sr. asked if Strahan had been

using some of the drugs he was supposed to sell. (The

answer was “yes.”)

Johnny McCray Sr. testified that Strahan lived with the

McCrays and sold drugs for the McCray Jr. crack cocaine

and heroin distribution group, initially in Granite City,

Illinois, and later from the College Street house in East

St. Louis. Coconspirators Falls and Brown also testified

that Strahan lived at McCray Jr.’s College Street house

and participated in the drug-distribution operation conducted there by (among other things) taking phone

orders and delivering drugs. This evidence is more than

sufficient for the jury to convict Strahan on the conspiracy

count. See United States v. Sachsenmaier, 491 F.3d 680, 684

(7th Cir. 2007) (finding a conspiracy where the defendant

“took drug orders, arranged sales, collected drug money,
No. 07-1494 9

and acted as an intermediary” between the seller and

his customers).

Similarly, the testimony at trial gave the jury sufficient

evidence to find Strahan guilty of distributing crack

cocaine to informant Joe Mitchell on September 29, 2004.

The transaction was recorded, and although Strahan

disputed the accuracy of the audio recording, he

admitted being present when Mitchell received the

drugs at the College Street address on that day. McCray

Jr. testified that one of the voices on the recording was

Strahan’s and that Strahan gave Mitchell the drugs,

collected payment, and brought the money to him for

change. Mitchell testified and confirmed the details of the

September 29 controlled buy and Strahan’s role in the

transaction. Notwithstanding the poor quality of the

audio recording, McCray and Mitchell were able to

identify Strahan’s voice, and both testified in detail to

Strahan’s participation. This evidence amply supports

the guilty verdict on the crack-distribution count.

C. Sentencing Claims

Strahan raises two constitutional challenges to his

sentence. First, he argues that the mandatory-minimum

sentence of life imprisonment runs afoul of the Sixth

Amendment by allowing facts not proven to a jury

beyond a reasonable doubt—in this case, his two prior

convictions for drug felonies—to affect the severity of

his punishment. See 21 U.S.C. § 841(b)(1)(A). But this

argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), and Harris v. United States, 536
10 No. 07-1494

U.S. 545 (2002). Strahan acknowledges that we have

repeatedly rejected the argument that United States v.

Booker, 543 U.S. 220 (2005), has called into question either

Almendarez-Torres or Harris. See, e.g., Sachsenmaier, 491

F.3d at 685 (noting “this court’s many decisions holding

that Almendarez-Torres is still good law after Booker”);

United States v. Jones, 418 F.3d 726, 732 (7th Cir. 2005)

(finding that “[t]he distinction drawn by the Court in

Harris appears to have survived” Booker). He seeks only

to preserve these issues for review in the Supreme Court,

and we confirm that he has done so. Sachsenmaier, 491

F.3d at 685.

Next, Strahan contends that the mandatory-minimum

sentence of life in prison violates the Eighth Amendment’s

prohibition on cruel and unusual punishment because

the sentence is grossly disproportionate. But the

Supreme Court has rejected Eighth Amendment challenges to statutorily mandated life sentences for defendants with two prior felony convictions, see Ewing v.

California, 538 U.S. 11, 25 (2003) (upholding California’s

“three-strikes” law); Lockyer v. Andrade, 538 U.S. 63 (2003),

and we have followed suit, see United States v. Cannon, 429

F.3d 1158, 1161 (7th Cir. 2005). Accordingly, Strahan’s life

sentence does not violate the Eighth Amendment.

Strahan makes a host of other sentencing arguments—most notably, that the district court should not

have applied a guidelines enhancement for obstruction of

justice, U.S.S.G. § 3C1.1 & cmt. n.4(b), based on his trial

testimony—but we need not address them. Based on his

two prior convictions for felony drug offenses, Strahan

was subject to the statutory-minimum sentence of life in
No. 07-1494 11

prison on the conspiracy count, and that sentence

trumped any guidelines calculation. Id. § 5G1.1(b). His

concurrent sentence of 360 months on the crack-distribution count was also unaffected by any of his other claims

of error. Strahan was deemed a career offender under

the guidelines because of two prior state convictions,

pushing his base offense level to a minimum of 37

and rendering other enhancements meaningless. Id.

§ 4B1.1(a)-(b).

Strahan submitted a pro se brief after his counsel filed

his opening brief. We agreed to accept the supplemental

brief only after Strahan specified the arguments he intended to advance. We therefore confine our review to the

arguments raised in his motion. These are: (1) that he

did not act in furtherance of the alleged conspiracy; and

(2) one of the two convictions listed in the § 851 notice

was disregarded by the district court for purposes of the

guidelines calculation. The first argument fails along

with the sufficiency-of-the-evidence argument, which

we have rejected for the reasons noted above. Strahan

appears to contend that his actions were aimed at thwarting what he sees as two separate conspiracies—one

involving Falls and Baker, the other involving the

McCrays—but the testimony at trial was to the contrary,

and that evidence was easily sufficient to sustain his

convictions.

Finally, Strahan notes that the district court disregarded

one of his prior drug convictions listed in the § 851 notice

because it was not clear from the charging document

whether it would have counted as a “controlled sub-
12 No. 07-1494

stance offense” for purposes of U.S.S.G. § 4B1.1(a)(2) and

.2(b). He contends that this invalidates his life sentence.

But Strahan conflates two separate standards. Damerville

v. United States, 197 F.3d 287 (7th Cir. 1999). The district

court did not disregard this conviction for purposes of the

§ 851 notice, required for application of the statutoryminimum life sentence. Instead, the court declined to

rely on the record of conviction for one of Strahan’s prior

drug convictions in calculating his guidelines sentence

because the record was unclear whether it met the guidelines definition of a “controlled substance offense.” In

contrast, the mandatory life sentence applies when a

defendant convicted under § 841(a) has two or more

prior “felony drug offense[s].” 21 U.S.C. § 841(b)(1)(A).

There is no dispute that the two state narcotics convictions identified in the government’s § 851 notice met this

standard.

AFFIRMED.

5-15-09