Appeal from the United States District Court for the Southern District of Illinois. No. 3:08-CR-30004-001-Michael J. Reagan, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before CUDAHY, FLAUM, and KANNE, Circuit Judges.
Defendant Ronfredrick F. Boling was convicted in federal court of one count of possession with the intent to distribute less than 5 grams of a mixture or substance containing cocaine base and two counts of distributing less than 5 grams of a mixture or substance containing cocaine base. The court issued Boling an above-guidelines sentence of 180 months in prison. Boling appeals his conviction, arguing that various errors warrant reversal. Alternatively, Boling seeks a limited remand for resentencing, arguing that the district court committed procedural errors. We affirm Boling's conviction and sentence.
At around 3:00 a.m. on October 3, 2007, Detective Kevin Jackson of the Mount Vernon, Illinois, Police Department ("MVPD") responded to a report of a burglarized apartment. On his way, Detective Jackson passed Boling and noticed that Boling smelled of burnt marijuana. When he arrived at the apartment, he noticed a footprint on the kicked-in front door. He interviewed the apartment's occupants and then left to pursue Boling.
After catching up to Boling, Detective Jackson inspected Boling's shoes, but they did not match the footprint on the apartment door. He then questioned Boling, who admitted having marijuana on his person. Based on this information, Detective Jackson searched Boling. At some point during the questioning or search, MVPD Officer Kent Jackson, Detective Jackson's twin brother, arrived and provided backup.
Detective Jackson found marijuana in Boling's pocket. He also found a digital scale in another pocket and sixteen individually packaged rocks of crack cocaine, weighing 2.6 grams total, in the crotch of Boling's pants. Police later learned Boling had been convicted in 2005 for possession with intent to distribute cocaine base under similar circumstances-Boling's possession of sixteen individually packaged rocks of crack cocaine, weighing 2.2 grams total.
Boling was arrested and taken into custody. Later that day, Captain Ron Almaroad interviewed Boling. Almaroad was in charge of the drug task force in Mount Vernon, and he was known by local drug users and dealers for recruiting confidential informants. By his own account, Almaroad made no threats or promises to induce Boling to work as an informant. During the interview, Boling admitted to possessing sixteen packets of crack cocaine, but he claimed they were for personal use. Boling was released on bond on October 11.
On October 18, Jeff McCurdy, acting as an informant for Captain Almaroad, bought $50 worth of crack cocaine from Boling. Captain Almaroad searched McCurdy before and after the transaction, and McCurdy wore an audio and video recording device to record the transaction. The recording showed a rapid exchange of objects between McCurdy and Boling. After this exchange, McCurdy met Captain Almaroad at a pre-arranged location, where he delivered the crack cocaine he had pur-chased to Captain Almaroad. On November 5, McCurdy executed another controlled purchase of crack cocaine from Boling. The exchange again was quick, but the video of this transaction showed Boling reaching into his mouth-where dealers and users in Mt. Vernon commonly hide crack cocaine-just before making the exchange with McCurdy. Again, McCurdy delivered the crack cocaine he had obtained to Captain Almaroad.
Boling represented himself at trial. The theory of his defense was that members of the MVPD-including Captain Almaroad, Officer Jackson, and Detective Jackson-had conspired to falsify evidence against him to justify federal prosecution, which Captain Almaroad could use to leverage him into working as a confidential informant. Part of Boling's trial strategy, then, was to undermine the credibility of Captain Almaroad, Officer Jackson, and Detective Jackson.
While cross-examining Officer Jackson, Boling asked for proof that Detective Jackson was his identical twin. The government suggested allowing Detective Jackson into the courtroom. Though Detective Jackson had already testified, the district judge called him into the courtroom, told him to stand in front of the jury, and then dismissed him.
While cross-examining Captain Almaroad, Boling repeatedly questioned Captain Almaroad's motives for pursuing federal prosecution. He also asked about the factors Captain Almaroad normally considers before recommending a case for federal prosecution, his relationship with federal prosecutors, and any threats or promises he had made to Boling about the possibility of federal prosecution. In response to one such question, Captain Almaroad explained that he based his decision to pursue federal prosecution on Boling's career offender status.
On re-direct examination, the government asked Captain Almaroad to explain the term "career offender status." He explained that someone who has been convicted of at least three serious drug offenses is a career offender. The government then introduced a printout from the Illinois Department of Corrections website listing Boling's prior Illinois convictions ("IDOC printout"). Captain Almaroad testified that he had viewed this website before interviewing Boling, that he had seen Boling had five felony drug convictions, and that he therefore had known Boling was a candidate for federal prosecution. The district court admitted the testimony and the IDOC printout-over objections of hearsay and relevance-as evidence of Captain Almaroad's reasons for pursuing federal prosecution.
Unbeknownst to the government, the district court, and even Boling's standby counsel, Boling was not a potential career offender. The IDOC printout showed Boling had two prior convictions that qualify as controlled substance offenses, as defined by United States Sentencing Guidelines § 4B1.2(b). But one of the two convictions was inaccurately listed as an offense that qualifies as a controlled substance offense. Actually, Boling had been convicted of a possession offense that does not qualify as a controlled substance offense.
After Captain Almaroad, Boling testified in narrative form. He acknowledged his past offenses, including the drug offenses listed in the IDOC printout, a conviction for deceptive practice, and others. He then testified that Captain Almaroad had manufactured evidence against him in order to leverage him into working as an informant. He admitted to having possessed marijuana and a digital scale when he was searched on October 3, but he denied possessing any crack cocaine. He testified that Captain Almaroad and the MVPD had fabricated evidence of crack cocaine possession in order to bolster the threat of federal prosecution.
Boling also denied selling crack cocaine to McCurdy on October 18 or November 5. He provided implausible explanations of the video evidence. The video recording from October 18 showed Boling with his arms crossed during most of the encounter, but briefly showed one extended arm, which then retreated into a folded-arms position. McCurdy testified that Boling's arm ...