## In the 

# United States Court of Appeals
For the Seventh Circuit

____________
No. 06-1969

U NITED S TATES OF AMERICA , Plaintiff-Appellee

, v.

J IMMIE M ALLETT , Defendant-Appellant.

____________ Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 02 CR 31— Theresa L. Springmann

, Judge.

____________ A RGUED F EBRUARY 13, 2007—D ECIDED A UGUST 3, 2007

____________

Before B AUER , P OSNER , and W ILLIAMS , Circuit Judges

. B AUER , Circuit Judge . A jury convicted Jimmie Mallett of knowingly and intentionally maintaining a place for the purpose of manufacturing , distributing, or using crack cocaine, in violation of 21 U.S.C. § 856(a)(1), and possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to 210 months’ imprisonment. On appeal, Mallett challenges the district court’s transfer of the case from the Hammond Division to the Fort Wayne Division, the district court’s ruling to admit evidence of prior conduct, and his sentence. We affirm.2 No. 06-1969

I. Background In December 2001, a confidential source made four controlled buys of crack cocain e from individuals, including Mallett, living at a house at 571 Madison Street in Gary, Indiana. After the lastcontrolled buy, the federal drug task force executed a search warrant for the house and arrested Mallett and his housemates. The officers recovered marijuana, powdercocaine, crack cocaine packaged for sale in separa te plastic bags, and numerous small plastic bags. The officers also recovered $6,813.45 in cash from various locati ons, including a videocassette case; several envelopes addre ssed to Mallett; ammunition; and a firearm.

After his arrest, Mallett admitted that he lived at the house and that crack cocaine was sold from the house to approximately 20 to 25 people per day. He also admitted that he obtained powder cocaine before cooking it intocrack cocaine and also hid drugs and money in videocassette cases. Mallett provided de tails of the operation and implicated his housemates. Af ter agreeing to cooperate, Mallett was released from custody. Ultimately, Mallett did not cooperate and was la ter arrested at the same house on April 19, 2002.

At sentencing, the district court found that the advisorySentencing Guideline range was 168-210 months’ imprisonment and sentenced him to 210 months’ imprisonment. Mallett filed this timely appeal.

II. Discussion

A. Division Transfer Mallett first claims that his Sixth Amendment right to trial by an impartial jury of his peers was violated when the district court transferre d his case from the HammondNo. 06-1969 3

Division to the Fort Wayne Division, both of which are in the Northern District of Indiana. The charged offense took place in Lake County, Indiana, which is in the Hammond Division. The districtcourt reassigned the caseto the Fort Wayne Division because of workload considerations pursuant to Local Rule 40.1(f).

Mallett never objected to the divisional transfer of his case. Therefore, our review is for plain error only. To constitute plain error, there must be error, that is plain, and that affects substantial rights. Johnson v. United States , 520 U.S. 461, 467, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997). Mallett has failed to establish that any error occurred. A defendant may be tried in a division of a judicial district different th an the division where the crime was committed. Humphrey v. United States , 896 F.2d 1066, 1068-69 (7th Cir. 1990). We find that the district court did not err in transferring th e case to a division within the district where the crime occurred.

B. Rule 404(b) Evidence Mallett next challenges the district court’s ruling to admit evidence of his prior cocaine sales. Eight months before the charged conduct, on April 25, 2001, Indiana state police officers arrested Mallett at his house after observing him sell crack cocaine to a prostitute. The officers recovered approximately 85 grams of cocaine base, drug paraphernalia, a cellula r telephone, and firearms from his house. The next day, Mallett signed a Miranda waiver and admitted that he ha d sold crack cocaine to the prostitute. The State of Indiana charged Mallett with several violations of controlled substance laws. He moved to suppress his statements an d the results of the police search of the house. In response, the State of Indiana dismissed all charges against him. At trial for Mallett’s later charged conduct, the fe deral government introduced4 No. 06-1969

evidence of this incident to show Mallett’s intent and knowledge. We review the di strict court’s ruling on theadmissibility of evidence of prior acts for abuse of discretion. United States v. Redditt , 381 F.3d 597, 601 (7th Cir. 2004). Federal Rule of Evidence 404(b) precludes the use of evidence of prior acts to sh ow a defendant’s propensity to commit similar crimes, but evidence of a prior act may be admissible to show proof of in tent and knowledge. Fed. R. Evid. 404(b)

. Nevertheless, evidence may be excluded if its probative value is substa ntially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. Evidence ofa defendant’s prior acts is admissible only if four requirements are met: (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 rele vant 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 evidence has probative value that is not substantially outweighed by the dang er of unfair prejudice. United States v. Simpson , 479 F.3d 492, 497 (7th Cir. 2007). Mallett claims that the eviden ce did not satisfy the third and fourth prongs of the test.

To satisfy the third prong, the government need only present sufficient evidence to support a finding by the jury that Mallett committed the similar act. Huddleson v. United States , 485 U.S. 681, 685, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988). Mallett confessed to the prior cocaine sale, and his confession was corro borated with the physical evidence found in his home . The evidence itself was reliable, without reference to any claim of an illegal seizure. The district correctly found that the evidence was sufficient to support the finding of the jury.No. 06-1969 5

Mallett also asserts that the ev idence of his prior cocaine sales was unfairly prejudicialand cumulative. We disagree. The government charged Mallett with knowingly and intentionally maintainin g his home as a crackhouse and intentionally distributing cocaine. Because Mallett shared his home with others who also sold drugs, evidence of the prior sale from his house was probative of Mallett’s specific intent and not outweighed by any unfair prejudice. Although the government ca lled three witnesses and used seven exhibits to establish th e facts of the prior cocaine sale, this evidence only covered 45 pages of a 138 page transcript of the first day oftrial and each witness testified to different aspects of the incident. Furthermore, the district court instructed the jury only to consider evidence of the prior cocaine sale as bearing on Mallet’s intent and know ledge. Absent any showing that the jury could not follo w the court’s limiting instruction, we presume that the jurylimited its consideration of the testimony in accordance wi th the court’s instruction. United States v. James, 487 F.3d 518, 525 (7th Cir. 2007).The district court did not abuse its discretion in admitting the evidence.

Moreover, there was overwhel ming evidence of Mallett’s guilt. Mallett confessed to the crime charged which is indeed strong evidence of guilt, and the government presented an enormous amount of physical evidence to prove the charged conduct.

C. Sentencing And finally, Mallett challenges the district court’s calculation of his sentence. In the post- Bookerera, we continue to review the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Bothun , 424 F.3d 582, 5866 No. 06-1969

(7th Cir. 2005). We review all sentences for reasonableness in light of the factors specified in 18 U.S.C. § 3553(a).Sentences that are within the properly calculated Guidelines range are entitled to a rebuttable presumption of reasonableness. United States v. Rita , ___ S. Ct. ___, 2007 U.S. LEXIS 8269, 2007 WL 1772146, at *6 (June 21, 2007). Section 1B1.3(a)(2) of the Sentencing Guidelines provides that, with a narcotics conviction, the district court should determine the base offense level for sentencing purposes by considering “all su ch acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conv iction.” To qualify as part of the same course of conduct, the two events must be “sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing se ries of offenses.” U.S.S.G. § 1B1.3(a)(2), Application Note 9(b). Factors include the “degree of similarity of the o ffenses, the regularity (repetitions) of the offenses, and th e time interval between the offenses.” Id. In calculating Mallett’s base level offense of 32, the district court included the 85 grams of cocaine recovered from Mallett’s house in April 2001 as relevant conduct. The district court found that this prior incident was part of the same course of conduct for which Mallett was convicted because the same drug type and the same drug paraphernalia were recovere d from the same residence. The district court reasoned that the nature of the crime indicated that there was one drug operation run by Mallett out of the residence th at he maintained for the purpose of ongoing drug activity. We agree.

III. Conclusion For the foregoing reasons, we A FFIRM the judgment of the district court.No. 06-1969 7

A true Copy:

Teste:

________________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-3-07