In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3675

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,

                               v.

C ALVIN B RUCE,
                                            Defendant-Appellant.


                        ____________
           Appeal from the United States District Court
             for the Western District of Wisconsin.
             No. 07 CR 57—John C. Shabaz, Judge.
                        ____________

  A RGUED S EPTEMBER 19, 2008—D ECIDED D ECEMBER 18, 2008
                        ____________


  Before P OSNER, R IPPLE and E VANS, Circuit Judges.
  R IPPLE, Circuit Judge. Calvin Bruce was charged by
indictment with one count of possession with intent to
distribute fifty grams or more of cocaine base (crack
cocaine) in violation of 21 U.S.C. § 841(a)(1). He entered a
plea of not guilty, but was convicted after a jury trial. The
district court sentenced him to 360 months’ imprisonment
followed by 10 years of supervised release. Mr. Bruce
2                                                No. 07-3675

appeals both his conviction and his sentence. For the
reasons set forth in this opinion, we affirm Mr. Bruce’s
conviction and remand this case for resentencing in light of
the Supreme Court’s decision in Kimbrough v. United States,
___ U.S. ____, 

(2007).


                              I
                     BACKGROUND
A. Facts
  On the afternoon of March 28, 2007, Calvin Bruce was
a passenger in a car that was stopped by officers of the
Dane County (Wisconsin) Narcotics and Gang Task Force.
During the stop, the police discovered an outstanding
warrant for Mr. Bruce’s arrest and took him into custody.
Mr. Bruce used his cell phone to call his girlfriend, Endia
Matthews, who drove to the scene of the traffic stop. After
Matthews arrived, the police learned that she was
on probation and had driven to the scene on a revoked
driver’s license. The police did not arrest her, but asked for
consent to search her house. Matthews consented. The
police obtained the keys to the house from Mr. Bruce, who
was then taken to a police station for questioning.
  Madison Police Detective Dorothy Rietzler, Officer
Denise Markham and Officer Jason Baumgart went to
Matthews’ house to conduct the search and to interview
Matthews. At the house, they found $2,580 in cash in a
jacket belonging to Mr. Bruce. They also found a bag
containing crack cocaine and pepper in the engine com-
partment of a van parked in the garage. Other drug
No. 07-3675                                               3

paraphernalia were found throughout the house.
Matthews denied any knowledge about the drugs or the
money.
   After completing the search, the police officers went to
the station to interview Mr. Bruce. Detective Rietzler led
the interview, portions of which also were attended by
Officers Markham and Baumgart. Before the interview
began, Detective Rietzler turned on an audio recorder. Mr.
Bruce initially denied any knowledge about the drugs and
the money. Eventually, however, he admitted that the
money belonged to him and also admitted that there were
“about two ounces” of crack in the van. R.75 at 26. Detec-
tive Rietzler offered Mr. Bruce “a chance to help [him]self”
by working with police to incriminate “the big fish”—that
is, other drug dealers who sold larger amounts of drugs.
R.75 at 20, 21. Mr. Bruce agreed to assist the police and
began by telling them the name and location of one of the
dealers from whom he bought drugs. Detective Rietzler
then turned off the audio recorder but continued the
interview for twenty more minutes.
  Mr. Bruce was released from custody after the interview.
He ultimately failed to make good on his promise of
cooperation, however, and, in April 2007, he was indicted
in the United States District Court for the Western District
of Wisconsin on one count of possession with intent to
distribute 50 grams or more of a mixture or substance
containing cocaine base (crack cocaine) in violation of 21
U.S.C. § 841(a)(1).
4                                                 No. 07-3675

B. Trial
  Mr. Bruce’s jury trial was held in August 2007. At a pre-
trial hearing, Mr. Bruce alleged that Detective Rietzler had
violated Wisconsin law by continuing to interrogate him
after turning off the audio recorder. Wisconsin Statute
§ 968.073 provides, in relevant part: “It is the policy of this
state to make an audio or audio and visual recording of a
custodial interrogation of a person suspected of commit-
ting a felony unless . . . good cause is shown.” Wis. Stat.
§ 968.073(2). Mr. Bruce requested a jury instruction stating
that the law requires recording of interrogations by police
and instructing the jury that “unrecorded oral statements
made by a defendant out of court to a law enforcement
officer should be viewed with caution.” R.60 at 2. The
district court declined to give the proposed instruction
because it agreed with the prosecution that any violation of
state law by the police was irrelevant to Mr. Bruce’s guilt
or innocence under federal law.
  At trial, the Government presented the recovered money,
the crack cocaine found in the van, the drug paraphernalia
found in the house and garage, and mail addressed to Mr.
Bruce at Matthews’ address. Detective Rietzler, Officer
Markham and Officer Baumgart testified about the re-
corded part of the interview, portions of which were
played for the jury. Detective Rietzler and Officer
Markham testified that, after the recorder was turned off,
Mr. Bruce continued to be relaxed and cooperative. They
also testified that Mr. Bruce dated and initialed a photo of
another dealer from whom he had purchased crack in the
past. This photo was admitted as evidence.
No. 07-3675                                                  5

  Mr. Bruce’s counsel was permitted to cross-examine the
officers about the content of the interview and the circum-
stances surrounding it, including the fact that Detective
Rietzler had stopped the recording. His counsel was not,
however, allowed to mention the Wisconsin statute
regarding the recording of custodial interrogations.
  At the end of the trial, the court gave a model jury
instruction instead of Mr. Bruce’s proposed instruction on
the recording of interrogations. The jury convicted Mr.
Bruce on the sole count of the indictment.


C. Sentencing
  Mr. Bruce was sentenced on October 31, 2007. The court
determined that Mr. Bruce’s past criminal record qualified
him as a career offender under Section 4B1.1 of the United
States Sentencing Guidelines. Accordingly, the court
calculated his base offense level under both the drug
quantity table Guideline, § 2D1.1(c), and the career of-
fender Guideline, § 4B1.1(b). The court found that Mr.
Bruce’s offense, including relevant conduct, involved 3.28
kilograms of crack cocaine, resulting in a base offense level
of 38 under Section 2D1.1(c). Mr. Bruce’s base offense level
under Section 4B1.1(b) was 37 because the maximum
statutory sentence for his offense was life in prison.
Because the drug quantity table’s offense level of 38 was
the higher of the two, the court used this latter offense level
to determine Mr. Bruce’s sentencing range under the
Guidelines. The court also determined that Mr. Bruce’s
prior convictions placed him in Criminal History Category
6                                               No. 07-3675

VI. The Guidelines sentencing range for level 38 in Cate-
gory VI is 360 months to life.
  Mr. Bruce’s counsel pointed out to the court that
amended Guidelines were expected to take effect the next
day (November 1, 2007) that would reduce the offense level
for someone in Mr. Bruce’s position from 38 to 36. Counsel
acknowledged, however, that this reduction would have no
effect on Mr. Bruce’s sentencing range because he then
would be sentenced at the career offender offense level of
37, which also prescribes a range of 360 months to life for
offenders in Criminal History Category VI. The court
sentenced Mr. Bruce to 360 months’ imprisonment, to be
followed by 10 years of supervised release.
  The next day, the 2007 Sentencing Guidelines took effect.
The new Guidelines reduced the Section 2D1.1 offense
level by two levels for all crack offenses. The United States
Sentencing Commission subsequently decided that this
reduction should be retroactive.
    Mr. Bruce timely appealed his conviction and sentence.


                             II
                      DISCUSSION
  Mr. Bruce submits that the district court’s exclusion of
any mention of the Wisconsin recording statute violated
his right to a fair trial. He also contends that the Supreme
Court’s decision in Kimbrough v. United States, ___ U.S.
____, 

(2007), entitles him to a remand for
resentencing. We consider these arguments in turn.
No. 07-3675                                                     7

A. Jury Instruction
  Mr. Bruce’s first basis for appeal is that he was deprived
of the right to a fair trial by the district court’s refusal to
give his proposed jury instruction, which stated that the
police violated Wisconsin law by failing to record the
entirety of his interrogation.1 The district court instead
gave a model jury instruction that directed the jurors to
consider all of the evidence when weighing Mr. Bruce’s


1
    The requested instruction read as follows:
     The law requires law enforcement officers, when question-
     ing a person who may be charged with a crime, to record all
     oral statements made by that person. The failure of a law
     enforcement officer to follow this law results in less than a
     full and accurate record of the actual statement made by the
     defendant, and denies a defendant the ability to present
     recorded evidence that may be favorable to his or her case.
     You have heard evidence that the defendant made a state-
     ment to law enforcement officers after they stopped the
     recording device. You are the exclusive judge as to whether
     the defendant made the statement, and as to what was
     actually said. If you find that the defendant did not make
     such a statement after the recording device was stopped,
     you must disregard the evidence of the statement and not
     consider it for any purpose.
     If you find that the defendant did make a statement after the
     recording device was stopped, you must view the statement
     as reported with caution, because unrecorded oral state-
     ments made by a defendant out of court to a law enforce-
     ment officer should be viewed with caution.
R.60 at 2.
8                                                 No. 07-3675

statements to the police.2 Mr. Bruce submits that the court’s
refusal to give his instruction hindered his ability to
present his theory of defense, which was lack of proof. We
review de novo a district court’s decision not to give a
requested jury instruction. United States v. Prude, 

, 882 (7th Cir. 2007).
  Mr. Bruce contends that he was entitled to have his
proposed instruction read to the jury because it satisfied
the four requirements that we have set forth for instruc-
tions on a defendant’s theory of defense. We have said:
     A defendant is entitled to a jury instruction as to his or
     her particular theory of defense provided: (1) the
     instruction represents an accurate statement of the law;
     (2) the instruction reflects a theory that is supported by
     the evidence; (3) the instruction reflects a theory which
     is not already part of the charge; and (4) the failure to
     include the instruction would deny the appellant a fair
     trial.
United States v. Eberhart, 

, 666 (7th Cir. 2006)
(quoting United States v. Buchmeier, 

, 426 (7th


2
    The court gave the following instruction:
     You have received evidence of statements made by the
     defendant to Detective Dorothy Rietzler and Denise
     Markham. You must decide what weight, if any, you believe
     the statements deserve. In making this decision you should
     consider all matters in evidence having to do with the
     statements and the circumstances under which the state-
     ments have been made.
R.89 at 156 (quoting Pattern Criminal Federal Jury Instructions
for the Seventh Circuit § 3.02).
No. 07-3675                                                 9

Cir. 2001)). Mr. Bruce submits that his proposed instruc-
tion satisfied each of these requirements and that there-
fore it was error for the court to refuse to give it.
   Mr. Bruce’s theory of defense was that the Government
could not prove its case beyond a reasonable doubt. We
agree that he was entitled to have the jury instructed on
this theory, and in fact the jury was so instructed. Specifi-
cally, the court instructed the jury that Mr. Bruce was
entitled to a presumption of innocence that “is not over-
come unless from all the evidence in the case you are
convinced beyond a reasonable doubt that the defendant
is guilty as charged.” R.89 at 159. Regarding the reliability
of Mr. Bruce’s unrecorded statements—the subject of Mr.
Bruce’s proposed instruction—the jury was instructed that
it must decide what weight, if any, to give them. The jury
clearly was instructed that the Government had the
burden of proof and that it must acquit Mr. Bruce if the
Government failed to present enough proof to meet its
burden.
  Mr. Bruce was not, however, entitled to an instruction of
his own choosing. “We defer to the substantial discretion
of the district court for the specific wording of the instruc-
tions, and in rejecting a proposed instruction, so long as the
essential points are covered by the instructions given.”
United States v. Scott, 

, 1245 (7th Cir. 1994)
(internal quotations omitted). Mr. Bruce argues, in essence,
that the Wisconsin state law concerning the recording of
interrogations was an “essential point” that was not
covered by the instruction the court gave. We disagree.
Assuming that Detective Rietzler violated state law by
10                                                 No. 07-3675

turning off the recorder, that violation was irrelevant in
this federal case. Federal law, not state law, governs the
admissibility of evidence in federal criminal trials, see, e.g.,
United States v. Wilderness, 

, 1175 (7th Cir.
1998), and there is no federal requirement that criminal
interrogations be recorded. Mr. Bruce nevertheless submits
that the purported violation was relevant here because it
casts doubt on the reliability of his unrecorded statements.
However, any relevance the absence of a recording might
have stems from the fact that Detective Rietzler chose to
stop recording the interview—of which the jury was made
aware—not from the presence or absence of a state law
governing recordings.
  Mr. Bruce points to our decision in United States v.
Wilderness, 

(7th Cir. 1998), in which we wrote
that “[a]lthough federal courts do not enforce state rules
for evidence gathering, a state law may identify factors that
affect a confession’s voluntariness and reliability and
therefore matter under federal law.” 

However,
Wilderness does not bear on the circumstances before us
today. The issue in that case was the admissibility of the
defendant’s confession at his federal carjacking trial. The
defendant was under the age of eighteen when he con-
fessed. Under Indiana state law, his confession would have
been inadmissible because it was made outside the pres-
ence of a parent or an attorney. Federal law imposes no
such limitation, however, and therefore we affirmed the
admission of the confession in Wilderness’ federal criminal
trial. As Mr. Bruce points out, we did note that state
evidence laws may have some relevance in the context of
confessions, and we explained how the state law might be
No. 07-3675                                              11

relevant in Wilderness’ case: “It is easier to overbear the
will of a juvenile than of a parent or attorney, so in mar-
ginal cases—when it appears the officer or agent has
attempted to take advantage of the suspect’s youth or
mental shortcomings—lack of parental or legal advice
could tip the balance against admission.” 

words, state law might indicate factors to which a federal
judge should pay respectful attention when deciding
whether a confession is admissible. But Wilderness does not
say, or even imply, that federal juries must be allowed
to consider the existence of a state law in determining
how much weight to give to a confession that has been
admitted.


B. Cross-Examination
  Mr. Bruce also submits that the district court erred in
preventing him from mentioning the state law during his
cross-examination of Detective Rietzler. We review a trial
court’s limitation of cross-examination for abuse of
discretion. United States v. Neely, 

, 1080 (7th
Cir. 1992). As we have explained, the state law was
irrelevant in this federal criminal case. Defendants are not
entitled to cross-examine witnesses on irrelevant matters.
United States v. Jackson, 

, 591 (7th Cir. 2008)
(“A district judge has wide discretion to impose reason-
able limits on cross-examination, and may do so based on
concerns about, inter alia, prejudice, confusion of the
issues, or questioning that is only marginally relevant.”
(citation omitted)). Notably, Mr. Bruce was free to—and
did—fully and freely cross-examine Detective Rietzler
12                                                   No. 07-3675

about her decision to turn off the recorder, and to argue to
the jury that this decision rendered Mr. Bruce’s confession
unreliable. The district court did not abuse its discretion by
preventing him from also mentioning the state law.3




3
    We also note that it is far from clear whether Detective
Rietzler actually violated the law in the first place. The language
of the statute describes recording as a “policy” rather than a
mandate. Wis. Stat. § 968.073(2). Arguably the Wisconsin
legislature knows how to require recording of interrogations
when it wants to, and it did not do so here. See, e.g., Wis. Stat.
§ 938.195(2)(a) (“A law enforcement agency shall make an audio
or audio and visual recording of any custodial interrogation of
a juvenile that is conducted at a place of detention . . . .”
(emphasis added)). Wisconsin’s own courts appear to be unclear
on this question. Compare State v. Townsend, 

, 494
(Wis. Ct. App. 2008) (“Wisconsin law . . . presently encourages
electronic recording of custodial interviews.”) with State v.
Stefan, 

(Wis. Ct. App. 2008) ([T]he legislature
enacted legislation mandating the recording of custodial
interrogations.”). But even if the statute does impose a general
recording requirement, the statute also includes six specific
circumstances to which the policy does not apply, see Wis. Stat.
§§ 972.115(2)(a)(1)-(6), as well as a general exception for “good
cause.” Mr. Bruce’s position would require the judge either to
hold a mini-trial on the alleged state law violation, or to allow
the parties to submit sufficient evidence to allow the jury to
weigh whether there was such a violation. We do not believe
that the court was obligated to go so far afield from the central
issues in the case. Accordingly, we hold that the district court’s
rejection of Mr. Bruce’s proposed instruction was proper.
No. 07-3675                                                    13

C. Sentencing
  On December 10, 2007—roughly a month after Mr.
Bruce’s sentencing—the Supreme Court of the United
States announced its decision in Kimbrough v. United States,
___ U.S. ____, 

(2007). In Kimbrough, the Court
held that a district court may sentence crack offenders to a
term below the Guidelines range if it believes that the
disparity between the Guidelines sentence for a given
amount of crack and the sentence for an equivalent amount
of powder cocaine (often referred to as the “100:1 ratio” or
the “100:1 disparity”) leads to sentences for crack offenders
that fail to “accomplish the purposes of sentencing set forth
in 18 U.S.C. § 3553(a)4 .” 

Prior to Kimbrough, we
had held that district courts could not depart from the
Guidelines based on a disagreement with the 100:1 dispar-
ity. See United States v. Miller, 

, 273-76 (7th Cir.
2006), abrogated by 

. Thus, the


4
   18 U.S.C. § 3553(a) directs the courts to impose sentences
“sufficient, but no longer than necessary”:
      (A) to reflect the seriousness of the offense, to promote
      respect for the law, and to provide just punishment for the
      offense;
      (B) to afford adequate deterrence to criminal conduct;
      (C) to protect the public from further crimes of the defen-
      dant; and
      (D) to provide the defendant with needed educational or
      vocational training, medical care, or other correctional
      treatment in the most effective manner.

07-3675

district court could not have known when it sentenced Mr.
Bruce that it could impose a below-guideline sentence if it
disagreed with the application of the 100:1 disparity in his
case. Mr. Bruce submits that his case should be remanded
for resentencing in light of Kimbrough.
  The central question in our review of Mr. Bruce’s sen-
tence is whether he adequately raised the crack-powder
disparity issue with the trial court at sentencing. If he did,
then our review is for abuse of discretion, and we have
held in such cases that the defendant is entitled to a full
remand for resentencing. See United States v. Clanton, 

, 659 (7th Cir. 2008). If Mr. Bruce did not ade-
quately raise the issue, however, then our review is for
plain error. Under plain error review, Mr. Bruce would be
entitled only to a limited remand for purposes of determin-
ing whether the district court would be inclined to
resentence him in light of Kimbrough. See United States v.
Taylor, 

(7th Cir. 2008).
  Upon examination of the record, we conclude that Mr.
Bruce raised the crack issue sufficiently to merit a full
remand and resentencing. It is true that Mr. Bruce did not
cite specifically the 100:1 disparity as a basis for the trial
court to give him a shorter sentence. To do so, however,
would have been fruitless under the law of the Seventh
Circuit at the time. Recognizing this, we have held in a
similar case that explicit mention of the disparity is not a
prerequisite to resentencing. See United States v. Padilla, 

, 774 (7th Cir. 2008). The defendant in Padilla, like
Mr. Bruce, was sentenced under Section 2D1.1’s drug
quantity tables for a crack offense. Padilla disputed
No. 07-3675                                               15

whether the drugs he possessed qualified as crack, but he
did not ask the court to consider the appropriateness of the
100:1 disparity in determining his sentence. Noting that he
“[would not] have stood on sound legal footing in so doing
prior to Kimbrough,” we held that this omission was not
fatal to his request for resentencing:
    Padilla did contest before the district court and again
    on appeal whether the drugs in question were crack.
    We can presume that Padilla’s primary purpose in
    disputing the drug type was to avoid the harsh effects
    of the crack sentencing disparity, since no other logical
    inference exists. In so doing, Padilla preserved the
    issue, however obliquely, of whether the district court
    could consider the 100:1 sentencing disparity in sen-
    tencing.

The same approach is appropriate
here. Although Mr. Bruce’s counsel did not specifically
mention the crack-powder disparity at the sentencing
hearing, he did invite the court’s attention to the planned
change in the 2007 Guidelines that reduced crack sentences
by two levels. Counsel told the court: “[I]t makes no
difference to the sentencing range but I do want to pre-
serve the crack issue simply to allow further review if that
becomes necessary.” R.102 at 2-3. As the Supreme Court
recognized in Kimbrough, the 2007 amendment was a part
of the Sentencing Commission’s ongoing efforts to
“ameliorat[e]” the 100:1 disparity by bringing crack
sentences closer to sentences for powder 

. In light of this, it is clear to us that Mr. Bruce’s
purpose in mentioning the crack sentencing issue was “to
16                                                  No. 07-3675

avoid the harsh effects of the crack sentence disparity,”

. Consequently, we hold that he
adequately preserved the issue before the district court and
is now entitled to a full remand for resentencing.5
   The Government submits that a remand for resentencing
is inappropriate here. The 2007 amendment to the Guide-
lines decreased the offense level for Mr. Bruce’s crime
from level 38 to level 36. The Government argues that,
because the Commission has declared the amendment
retroactive, Mr. Bruce’s new sentence would be based on
the career offender Guideline level of 37, which would
then be higher than the offense level prescribed by the
drug quantity table. For an offender in Mr. Bruce’s crimi-
nal history category, the Guidelines range for offense level
37 is the same as the range for level 38: 360 months to life.
The Government contends that Mr. Bruce can derive no
benefit from a remand because his offense level on
resentencing would be the same. The Government also
submits that he would not be eligible for a departure
based on the 100:1 disparity because we have held that
Kimbrough does not apply to sentences imposed under the


5
   The Government argues that our decision in United States v.
Thomas, 

, 737 (7th Cir. 2007), establishes that Mr.
Bruce waived his right to argue for a Kimbrough remand by
failing to make that argument before the district court. In
Thomas, however, we declined to consider a Kimbrough remand
because the defendant never asked for one, either before the trial
court or on appeal. Because Mr. Bruce explicitly asked for a
Kimbrough remand in his appellate brief, Thomas is inapposite
here.
No. 07-3675                                                  17

career offender Guideline, U.S.S.G. § 4B1.1(b). See United
States v. Harris, 

, 812-13 (7th Cir. 2008); 

.
   The Government’s premise that Mr. Bruce necessarily
will be resentenced under the career offender Guideline is
not self-evident. When Mr. Bruce is resentenced, his
offense level and Guidelines range will be determined by
the Guidelines in effect at the time of his original sentenc-
ing. 18 U.S.C. § 3742(g)(1); United States v. Tanner, 

, 797 (7th Cir. 2008). While it is true that the Sentencing
Commission made the 2007 amendments retroactive, the
decision to apply the retroactivity in any individual case
lies within the sound discretion of the district court. 18
U.S.C. § 3582(c)(2); United States v. Lloyd, 

, 979
(7th Cir. 2005) (Section 3582(c)(2) “permits” the district
court to reduce a defendant’s sentence “when the Sentenc-
ing Commission has reduced the applicable Guidelines
range and made the change retroactive.”). We have no way
of knowing whether the district court will decide to apply
the 2007 amendments retroactively when it resentences Mr.
Bruce. It is the province of the district court to determine,
in the first instance, the proper Guidelines range and the
appropriate sentence for Mr. Bruce. Our task at this stage
is merely to decide whether Mr. Bruce’s original sentence
was imposed erroneously. We conclude that it was.
18                                         No. 07-3675

                     Conclusion
  For the foregoing reasons, Mr. Bruce’s conviction is
affirmed, but his sentence is vacated and his case is
remanded to the district court for resentencing.
      A FFIRMED in part, V ACATED and R EMANDED in part




                        12-18-08