In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2270

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARLOS L. CARPENTER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Central District of Illinois.

No. 02-10009—Joe Billy McDade, Judge.

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ARGUED FEBRUARY 23, 2005—DECIDED MAY 6, 2005

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Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit

Judges.

EASTERBROOK, Circuit Judge. While one officer was

giving Carlos Carpenter a ticket for evading a red light,

another arrived with a drug-detection dog. The dog’s alert

provided probable cause to search the car for drugs, which

were duly found. Carpenter pleaded guilty to possession of

crack cocaine with intent to distribute, reserving the right

to contest on appeal the denial of his motion to suppress. He

contended that his situation is identical to the one then
2 No. 04-2270

before the Supreme Court in Illinois v. Caballes, 125 S. Ct.

834 (2005), where the state court had held that a drug-detection dog conducts a “search” that is reasonable only if

supported by probable cause.

After the Supreme Court reversed Caballes and reiterated

its view that use of a dog in a public place does not require

any suspicion, Carpenter changed his tune and argued that

Caballes is distinguishable. The recast argument for

suppression is that waiting for the dog’s arrival made the

detention unreasonably long. Carpenter’s premise is that

Terry v. Ohio, 392 U.S. 1 (1968), governs the procedures

police must use for traffic stops, and prevents them from

investigating potential crimes other than the one that led

to the stop. We held in United States v. Childs, 277 F.3d

947 (7th Cir. 2002) (en banc), that Terry does not govern a

traffic stop supported by probable cause to believe that an

offense has been committed. A panel cannot overrule the en

banc court, and we have no reason to recommend that the

court convene en banc in this appeal. Childs has the

support of Whren v. United States, 517 U.S. 806 (1996),

which treated a stop on probable cause to believe that the

driver had committed a traffic offense as an arrest rather

than an investigative detention. Cf. Atwater v. Lago Vista,

532 U.S. 318 (2001).

Arresting officers must use reasonable procedures, and

not all of the steps appropriate to full custodial arrests are

good fits for traffic stops. See Knowles v. Iowa, 525 U.S. 113

(1998) (full search of vehicle’s occupants not reasonable unless the officer has a well founded suspicion or a full custodial arrest ensues); United States v. Jackson, 377 F.3d

715 (7th Cir. 2004). But given Caballes the only step that

could be attacked as “unreasonable” is delay until the dog

arrived, and that delay was short—by the prosecutor’s

calculation none at all (as Carpenter had to remain where

he was while the officer completed the steps necessary to

issue a citation), and no more than five minutes by
No. 04-2270 3

Carpenter’s calculation. That modest incremental delay for

a person already lawfully arrested cannot be called unreasonable, so the evidence was admissible.

Carpenter’s sentence of 70 months’ imprisonment depends

not only on the quantity of crack charged in the indictment

(and admitted by the guilty plea) but also on his criminal

history, which the district judge determined to be category III. Carpenter contends that this determination of his

criminal history—which raised his sentencing range from

63-78 months to 70-87 months—violates the sixth

amendment. See United States v. Booker, 125 S. Ct. 738

(2005). That contention is mistaken. All of the material facts

are agreed; the dispute concerns the facts’ legal significance. Booker phrased the constitutional rule this way:

“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.” Id. at 756. Criminal history is

all about prior convictions; its ascertainment therefore is an

issue of law excluded by Booker’s own formulation and

governed by Almendarez-Torres v. United States, 523 U.S.

224 (1998). Neither judges nor juries pass on the wisdom of

legal rules case by case, and Booker (like its predecessor

Apprendi v. New Jersey, 530 U.S. 466 (2000)), is about who

finds facts rather than what legal consequences those facts

may have. See McReynolds v. United States, 397 F.3d 479,

480-81 (7th Cir. 2005). That is why we held in United States

v. Rosas, No. 04-2929 (7th Cir. Mar. 24, 2005), slip op. 6-7,

that Booker does not affect the process of deciding whether

a prior offense is a crime of violence.

As the Court explained in Shepard v. United States, 125

S. Ct. 1254, 1262-63 (2005), a sentencing court is entitled to

classify and take into account the nature of a defendant’s

prior convictions, provided that the judge does not engage

in factfinding about what the accused did (as opposed to
4 No. 04-2270

what crime he has been convicted of). Carpenter does not

contend that the judge went behind the existence of his

priors to engage in a factual rather than a legal analysis of

his former criminal behavior. (Part III of Shepard, which we

have cited here, was joined by only four Justices, but

another three Justices concluded that recidivist enhancements never create problems under the sixth amendment,

so Part III speaks for the Court as a practical matter.)

Even if Almendarez-Torres were to be overruled, Carpenter

could not benefit. He concedes that criminal history category II, which yields a 63-78 month range, is appropriate.

The range for criminal history category I would have been

57-71 months. His 70-month sentence is within the lowest

range for a person who plans to distribute the amount of

crack that he has admitted possessing with intent to distribute, and he therefore has not received “a sentence exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict”.

This drives Carpenter to argue that he is entitled to be

resentenced even though there is no constitutional problem

in his existing sentence. According to Carpenter, the separate majority opinion in Booker dealing with remedies (see

125 S. Ct. at 756-69) makes the Sentencing Guidelines

advisory whether or not the judge has resolved any factual

dispute on a preponderance of the evidence. That is true

enough. The remedial majority considered but decided not

to adopt the approach of leaving the Guidelines in full effect

when there is no sixth amendment problem, while knocking

out 18 U.S.C. §3553(b)(1) (which makes them binding) only

when the district judge rather than the jury had to resolve

material factual disputes. “The Government would render

the Guidelines advisory in ‘any case in which the Constitution prohibits’ judicial factfinding. But it apparently would

leave them as binding in all other cases. We agree with the

first part of the Government’s suggestion. However, we do

not see how it is possible to leave the Guidelines as binding
No. 04-2270 5

in other cases. . . . [W]e believe that Congress would not

have authorized a mandatory system in some cases and a

nonmandatory system in others, given the administrative

complexities that such a system would create. Such a

two-system proposal seems unlikely to further Congress’

basic objective of promoting uniformity in sentencing.” 125

S. Ct. at 768.

Hence in future criminal prosecutions §3553(b)(1) is out

of the picture whether or not the district judge has resolved

disputed issues of material fact. But our review here is for

plain error, and the conclusion (explained above) that there

was no sixth amendment error also forecloses the possibility

of automatic resentencing under the demanding plain-error

standard. See, e.g., United States v. Olano, 507 U.S. 725,

734-37 (1993); Johnson v. United States, 520 U.S. 461, 468-

69 (1997); Jones v. United States, 527 U.S. 373, 394-95

(1999); United States v. Cotton, 535 U.S. 625, 631-33 (2002);

United States v. Dominguez Benitez, 124 S. Ct. 2333, 2339-40

(2004). Instead, we have recently held, the appropriate

response is a limited remand under United States v.

Paladino, 401 F.3d 471 (7th Cir. 2005). See United States v.

Castillo, No. 02-3584 (7th Cir. May 3, 2005), slip op. 31-34;

United States v. White, No. 03-2875 (7th Cir. May 3, 2005),

slip op. 13-16. We need not add to the analysis of Castillo

and White.

Carpenter’s conviction is affirmed. The matter is remanded

to the district court to make the finding contemplated by

Paladino. After that has been done, this court will complete

its resolution of the appeal.
6 No. 04-2270

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-6-05