In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2498

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MACQUILLIE WOODARD,

Defendant-Appellant.

____________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:02-cr-20—William C. Lee, Judge.

____________

ARGUED APRIL 5, 2005—DECIDED MAY 18, 2005

____________

Before POSNER, EASTERBROOK, and EVANS, Circuit

Judges.

EASTERBROOK, Circuit Judge. A jury convicted Macquillie

Woodard of possessing less than 5 grams of crack cocaine

with intent to distribute that drug. See 21 U.S.C.

§841(b)(1)(C). Because his prior convictions for burglary

made him a career offender, he was sentenced to 210

months’ imprisonment. See U.S.S.G. §4B1.1. The statutory

maximum for distributing any quantity of crack cocaine is

240 months (20 years), and Woodard’s 210-month sentence

conforms to the requirement that career offenders who

commit new drug offenses or crimes of violence serve time

“at or near the maximum term”. 28 U.S.C. §994(h).
2 No. 04-2498

Woodard does not contest his latest conviction or the classification of his older convictions as crimes of violence but

contends that his sentence is too high nonetheless.

One way of reducing the sentence would be through the

two-level reduction for acceptance of responsibility. Woodard

contends that he is entitled to this benefit because he offered

to plead guilty. He did not, however, offer to plead guilty to

the charge framed in the indictment: that he possessed

more than 5 grams of crack with intent to distribute. His offer

was confined to a lesser included offense. The prosecutor

rejected this proposed plea bargain, and when the case

came to trial Woodard decided to seek outright acquittal.

Instead of conceding that he had intended to distribute the

amount of crack on his person when he was arrested (about

0.6 grams) he made a general denial and put the prosecution to its proof on all issues: whether he possessed anything, his knowledge of the substance’s nature, his intent to

distribute whatever he may have possessed, and the

quantity for which he was responsible. He was successful in

part—the jury fixed the quantity at less than 5 grams,

which cut the maximum sentence from 40 years to 20, compare §841(b)(1)(B) with §841(b)(1)(C)—but only in part: he

was convicted.

The question we must decide is whether the district judge

abused his discretion. Woodard has not identified any case

in this circuit holding that a district judge must provide the

reduction to a defendant who seeks outright acquittal after

unsuccessful plea bargaining. The reduction for acceptance

of responsibility is designed to reward guilty pleas (which

spare the prosecution the risk and expense of trial) and

genuine contrition (which implies a reduced risk of recidivism), and Woodard displayed neither; he made an unsuccessful attempt at plea bargaining, then went to trial and

denied everything. The Sentencing Commission has suggested that a defendant who stands trial might be eligible

if the defense is limited to a legal point—although one won-
No. 04-2498 3

ders why the goal of preserving a legal defense for appeal

could not be accomplished by a conditional plea under Fed.

R. Crim. P. 11(a)(2). See U.S.S.G. §3E1.1 Application Note

2. By asking for acquittal on the facts at trial, Woodard took

himself outside the proviso established by Note 2. Instead

of admitting what he did, Woodard denied doing anything

wrong. It is not as if the only good way to defend against

the charge of distributing more than 5 grams was to deny

everything. This may well have weakened his defense in the

jurors’ eyes, for he had been caught red-handed with 0.6

grams of crack while meeting with a would-be customer.

Woodard did not need to deny the obvious; instead he

sought a windfall acquittal. The district judge did not abuse

his discretion in thinking this strategy incompatible with a

genuine acceptance of responsibility for his acts.

Woodard waited even longer to make another contention:

that his criminal history category should be reduced because Category VI significantly overstates the seriousness

of his criminal history. He did not make this contention in

the district court at all, so our review is for plain error only—

and then only to the extent of ensuring that the district

court knew that he could depart. (Whether to use a recognized power to depart is for the district judge alone. See,

e.g., United States v. Jarrett, 133 F.3d 519, 534-35 (7th Cir.

1998).) Category VI is what the Guidelines prescribe for all

career offenders. U.S.S.G. §4B1.1(b). Although the Sentencing Commission has allowed district judges to use Category

V in exceptional cases, see §4A1.3(b)(3)(A), no defendant is

entitled to such a reduction, and Woodard does not contend

that the district judge was unaware of §4A1.3(b)(3)(A). All

Woodard says now is that his burglary convictions are

almost ten years old, but many convictions of career

offenders will be dated—intervening imprisonment creates

a gap between convictions. See United States v. Belton, 890

F.2d 9, 10-11 (7th Cir. 1989). By omitting any request for a

reduction in the district court, Woodard forfeited the
4 No. 04-2498

opportunity for a favorable exercise of discretion (however

unlikely that would have been).

Finally, Woodard contends that the district judge violated

the sixth amendment by treating him as culpable for about

12 grams of crack under the Guidelines’ relevant-conduct

rules, see §1B1.3, instead of the smaller amount supported

by the jury’s verdict. As far as we can tell, however, §1B1.3

had nothing to do with his sentence. Twelve grams of crack

would have pegged his offense level at 26. See U.S.S.G.

§2D1.1(c)(7). Instead the district court set the offense level

at 32 under the career-offender guideline, which specifies 32

as a floor when the statutory maximum is between 20 and

25 years’ imprisonment. U.S.S.G. §4B1.1(b)(C). So relevant

conduct dropped out—and it did not come back in when the

judge decided where in the range to sentence Woodard.

The range for a person with offense level 32 and criminal

history category VI is 210 to 262 months (capped for

Woodard at 240 by the statutory maximum). The district

judge selected 210 months, the lowest available, and the

same sentence Woodard would have received had the jury’s

verdict been the only consideration. There was accordingly

no violation of the sixth amendment. As the Court put it in

United States v. Booker, 125 S. Ct. 738, 756 (2005): “Any

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 or a jury verdict

must be admitted by the defendant or proved to the jury beyond a reasonable doubt.” The jury’s verdict, plus the prior

convictions (which the jury need not consider), supported a

sentence as high as 240 months. Nothing in Booker affects

the career-offender rules, which pose legal rather than

factual issues for the sentencing judge. See, e.g., United

States v. Carpenter, No. 04-2270 (7th Cir. May 6, 2005);

United States v. Lewis, No. 03-4100 (7th Cir. Apr. 19, 2005),

slip op. 3; United States v. Rosas, 401 F.3d 843, 846-47 (7th

Cir. 2005).
No. 04-2498 5

Woodard received the full benefit of the jury’s decision

that the crack he intended to distribute weighed less than

5 grams. Had the jury convicted him on the indictment’s

charge, his statutory maximum sentence would have been

40 years. That would have led to offense level 34 under

§4B1.1(b)(B). The sentencing range for level 34 and criminal

history category VI is 262 to 327 months, and all of that

range would have been available (because the statutory

maximum would have been 480 months). Had the district

judge again selected the lowest sentence in the range,

Woodard would have been required to serve 52 months

more than his actual 210-month sentence.

Although the district judge respected all of Woodard’s

constitutional rights when imposing sentence, Booker makes

the Sentencing Guidelines advisory for all cases. We have

held that this decision governs on plain-error review even

when no violation of the sixth amendment occurred. See

United States v. Castillo, No. 02-3584 (7th Cir. May 3, 2005),

slip op. 32-33; United States v. White, No. 03-2875 (7th Cir.

May 3, 2005), slip op. 13-15. Accordingly, we order a limited

remand under the terms of United States v. Paladino, 401

F.3d 471, 483-84 (7th Cir. 2005), so that the district judge

may say whether he would have imposed a lower sentence

had he anticipated the additional discretion afforded by

Booker. When making this decision, the judge should bear

in mind that Booker does not affect §994(h), which calls for

career offenders to be sentenced at or near the statutory

maximum. This court will retain jurisdiction until it has

received the district judge’s finding.
6 No. 04-2498

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-18-05