In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1969

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JIMMIE MALLETT,

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.

____________

ARGUED FEBRUARY 13, 2007—DECIDED AUGUST 3, 2007

____________

Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

BAUER, 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 cocaine from individuals, including Mallett, living at a house at 571 Madison Street in

Gary, Indiana. After the last controlled buy, the federal

drug task force executed a search warrant for the house

and arrested Mallett and his housemates. The officers

recovered marijuana, powder cocaine, crack cocaine

packaged for sale in separate plastic bags, and numerous

small plastic bags. The officers also recovered $6,813.45

in cash from various locations, including a videocassette

case; several envelopes addressed 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 into

crack cocaine and also hid drugs and money in videocassette cases. Mallett provided details of the operation and

implicated his housemates. After agreeing to cooperate,

Mallett was released from custody. Ultimately, Mallett

did not cooperate and was later arrested at the same

house on April 19, 2002.

At sentencing, the district court found that the advisory

Sentencing 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 transferred his case from the Hammond
No. 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 district court reassigned the case

to 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 than 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 the 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 cellular telephone, and firearms

from his house. The next day, Mallett signed a Miranda

waiver and admitted that he had 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 and 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 federal government introduced
4 No. 06-1969

evidence of this incident to show Mallett’s intent and

knowledge. We review the district court’s ruling on the

admissibility 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 show a defendant’s propensity to

commit similar crimes, but evidence of a prior act may be

admissible to show proof of intent and knowledge. Fed. R.

Evid. 404(b). Nevertheless, evidence may be excluded if

its probative value is substantially outweighed by the

danger of unfair prejudice. Fed. R. Evid. 403. Evidence of

a 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 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

evidence has probative value that is not substantially

outweighed by the danger of unfair prejudice. United

States v. Simpson, 479 F.3d 492, 497 (7th Cir. 2007).

Mallett claims that the evidence 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 corroborated 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 evidence of his prior cocaine

sales was unfairly prejudicial and cumulative. We disagree. The government charged Mallett with knowingly

and intentionally maintaining 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 called three witnesses and used

seven exhibits to establish the facts of the prior cocaine

sale, this evidence only covered 45 pages of a 138 page

transcript of the first day of trial 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 knowledge. Absent any showing

that the jury could not follow the court’s limiting instruction, we presume that the jury limited its consideration of

the testimony in accordance with 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 overwhelming 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-Booker era, 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, 586
6 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 such acts and omissions that

were part of the same course of conduct or common scheme

or plan as the offense of conviction.” 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 series of offenses.” U.S.S.G.

§ 1B1.3(a)(2), Application Note 9(b). Factors include the

“degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the 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 recovered 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 that he maintained for the

purpose of ongoing drug activity. We agree.

III. Conclusion

For the foregoing reasons, we AFFIRM 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