"Indeed, since Apprendi was decided, we have specifically rejected the notion that a factual determination which has the effect of triggering a mandatory minimum sentence constitutes an element of the offense that must be submitted to the jury."
How later courts described this case
- "Indeed, since Apprendi was decided, we have specifically rejected the notion that a factual determination which has the effect of triggering a mandatory minimum sentence constitutes an element of the offense that must be submitted to the jury."
- upholding a determination that the defendant did not accept responsibility because he pleaded guilty on the last business day before the trial
- "[W]hen a drug dealer is sentenced to less than 20 years imprisonment--the limit under 21 U.S.C. sec. 841(b) (1)(C)- - . . . Apprendi is irrelevant."
- affirming sentence where district court’s "denial of the acceptance of responsibility reduction [was] well grounded in a permissible factor"
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-1234 & 00-1264
United States of America,
Plaintiff-Appellee,
v.
David Carrera and Luis M. Carrera,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 552--Suzanne B. Conlon, Judge.
Argued January 8, 2001--Decided August 3, 2001
Before Posner, Manion, and Kanne, Circuit
Judges.
Kanne, Circuit Judge. Luis Carrera sold
cocaine to a confidential informant, and
he brought his brother, David Carrera,
with him to the sale. As a result, Luis
and David Carrera were both charged with
conspiring to possess cocaine with intent
to distribute. Luis ultimately pleaded
guilty to the indictment, and David was
found guilty by a jury. In this
consolidated appeal, David and Luis
Carrera both raise a number of issues
regarding their respective convictions
and sentences. Because we find no errors
requiring reversal, we affirm.
I. History
A. The Arrest of Luis and David Carrera
On July 27, 1999, Francisco "Cisco" Soto
made arrangements through drug broker
Caesar Salazar to sell five kilograms of
cocaine for $19,500 per kilogram to one
of Salazar’s customers. Unbeknownst to
Soto, Salazar had become a confidential
informant, and his "customer" was
actually Investigator Calderon, an
undercover agent. Because Soto was
unavailable to deliver the cocaine that
night, the parties agreed that Luis would
make the delivery, and that they would
share the responsibility for his fee.
Through a series of recorded telephone
conversations, Salazar and Luis agreed to
meet at the Holiday Inn in Hillside,
Illinois at 9:00 p.m. to complete the
sale.
About 8:00 p.m. on July 27, Luis and his
brother David/1 were on their way to
buy a garage door opener for a garage
door they had purchased earlier in the
day when Luis informed David that he
needed to meet a friend before they ran
their errand. David, a construction
worker by trade, knew that his brother
was involved in dealing drugs and did not
ask any questions. At approximately 9
p.m., David and Luis pulled into the
parking lot of the Holiday Inn in a pick-
up truck. Luis instructed David to tell
Salazar and Calderon, who were waiting in
the parking lot, to come over to the
truck. David then exited the truck and
walked towards the two men. After
speaking briefly with Calderon and
Salazar, David proceeded about thirty
feet from the truck to the front of the
hotel and sat on a brick ledge.
Upon reaching the truck, the undercover
agent and the informant had a
conversation with Luis, which was
recorded by the agent’s body microphone.
Luis opened his backpack and displayed
five bricks of cocaine. Calderon opened
one of the packages and determined that
the substance was, in fact, cocaine. He
then suggested that Luis’s "friend" count
the money. Luis agreed that David would
count the money, and the men decided that
they would exchange the cocaine for the
money inside the buyer’s hotel room.
Luis, carrying the backpack containing
the cocaine, exited his truck and began
walking toward the hotel with Salazar and
Calderon. As they approached the
entrance, Luis instructed his brother to
join them. David got up and followed the
three men into the hotel. After the men
entered the hotel elevator, agents
arrested Luis and David and pretended to
arrest Salazar. The agents also recovered
the backpack, which was later found to
contain 4,975 grams of cocaine.
B. The Post-Arrest Statements of
David and Luis Carrera
After their arrests, Luis and David
Carrera were transported to the Hillside
Police Department and placed in a cell
together. Subsequently, Luis was taken to
a conference room and interviewed by
Investigator Calderon, Investigator
Woytko, and Special Agent Ohlin. Luis
admitted that he had obtained the cocaine
the week before by traveling to Mexico
and arranging for five kilograms to be
delivered to him in Laredo, Texas. He
explained that he had purchased the
cocaine for $10,000 per kilogram and that
he expected to personally make a $35,000
profit on the deal. According to Luis,
the rest of the money was to go to others
involved in the deal, but not to his
brother David. He admitted that David
knew that he sold drugs, but he
maintained that David had only come with
him as a favor to help him count the
money. After Luis gave his statement, one
of the agents prepared a typewritten
statement for Luis to sign. According to
the agents, Luis admitted that the
statement was true but refused to sign it
until David saw it.
David was then brought into the room.
Before the agents had a chance to say
anything, David allegedly blurted out,
"what my brother told you guys is true."
The agents proceeded to tell David what
Luis had said, and they gave him the
typewritten statement to read. David
agreed that the typewritten statement was
true, and the agents repeated their
request for Luis to sign it. Luis again
replied that the statement was true, but
he still refused to sign it. The agents
then removed Luis from the room and
proceeded to interview David alone.
During this interview, David admitted
that he knew that his brother sold
cocaine, and that he assumed that Luis
was going to do a drug deal that night.
According to the agents, he also stated
that he had accompanied Luis to the hotel
to help him "take care of business."
C. Proceedings Against Luis and David
Carrera
On September 22, 1999, David and Luis
Carrera were each charged with one count
of conspiring to possess with intent to
distribute at least five kilograms of
mixtures containing cocaine in violation
of 21 U.S.C. sec. 846 and 18 U.S.C. sec.
2, and one count of possession with
intent to distribute approximately five
kilograms in violation of 21 U.S.C. sec.
846 and 18 U.S.C. sec. 2.
On October 26, 1999, one week before
defendants’ joint trial was scheduled to
begin, Luis’s court appointed attorneys,
John A. Meyer and Timothy O’Connor,/2
filed an emergency motion to withdraw as
counsel for Luis. The motion offered two
reasons necessitating withdrawal: Luis
Carrera’s family had retained private
counsel, and the rules of professional
responsibility required withdrawal as a
result of "matters that arose for the
first time on October 25, 1999."
The court considered the motion the next
day during a pretrial hearing. Luis’s
proposed new counsel was not present.
Meyer explained to the court that Luis
had informed him the previous day that
his family had retained a new attorney,
and that he no longer wished to have
Meyer and O’Connor represent him. Meyer
stated that he had contacted Luis’s
family and was told that the new counsel
would be in court for the start of trial
on November 1. He told the court that he
had advised Luis and Luis’s family that
this was unacceptable, and that the new
attorney needed to be in court that day
to ask the court’s permission to
substitute. Meyer did not know the name
of Luis’s new attorney, and neither he
nor the government had been contacted by
anyone claiming to be Luis’s new
attorney.
After listening to this explanation, the
district judge stated, "[a]ll right,
then, I’m going to have to deny your
motion." Meyer then reminded the court
that the motion to withdraw was based not
only on Luis’s desire for new counsel but
also on professional responsibility
considerations. At that point, the
following colloquy took place:
The Court: Well, that presents a
problem. I’ll think about that problem.
But has Mr. Carrera disclosed to you who
this attorney is?
Mr. Meyer: No he hasn’t Judge. And
perhaps he could, if he knows the name.
Luis Carrera: Your Honor, I spoke to my
attorney and stuff and, ah, things
aren’t--things aren’t working the way,
you know that I--you know that I assume
they would have been and I’m just not
happy with the stuff that is going on. So
I requested, you know, to get some other
attorneys.
The Court: Well,--
Luis Carrera: And my family is looking
into it. I just-- I just told him
yesterday that I didn’t want them to
represent me.
The Court: Well they are appointed by
the court to represent you. And they
weren’t just appointed yesterday, they
were appointed quite some time ago. And
Mr. Meyer has done quite a bit of trial
preparation, we had a pretrial
conference, we’re ready to try the case
on Monday. And absent some kind of
compelling good reason for a substitute
of counsel, I cannot authorize them to
withdraw at this point. If you had
counsel here ready to go to trial, or
would be ready to go to trial by next
week, and somebody who’s admitted to the
bar, qualified to do so, of course I
would grant the motion. But that’s not
the case. So the motion is denied.
Luis Carrera: Well, your honor, like I
said, I just advised them yesterday that
I was going to have an attorney come to
speak to me today. But, you know, I was
rushed over here. I was barely arraigned
less than a month ago, I don’t know if
you can take that into consideration.
The Court: . . . The motion is
denied.
Tr. of Emergency Mot. Hr’g. at 5-6.
The joint trial of Luis and David began
six days later, on November 2, 1999, with
Meyer and O’Connor serving as counsel for
Luis. On the morning of the first day of
trial, Victor Ciardelli, the attorney
retained by Luis’s family, attempted to
file some sort of emergency motion to
postpone the trial. The exact sequence of
events is a bit unclear, but Ciardelli
was not permitted to enter his appearance
on behalf of Luis at that time. The court
proceeded with the trial, and the
government completed its case-in-chief
that afternoon. The next morning,
Ciardelli informed the court that he had
spoken to Luis over the weekend, and that
Luis wished to change his plea to guilty.
The district court allowed Ciardelli to
enter his appearance as additional
counsel for the purposes of the plea
hearing. Warning Luis that "there are no
economies to either the government or to
the Court . . . for a guilty plea at this
stage," the district court proceeded to
conduct the guilty plea hearing.
The district court proceeded with
David’s trial, and it ended in a mistrial
when the jury was unable to reach a
verdict on either count. A few days
later, David was tried again, and this
time, the jury found him guilty on both
counts.
D. Sentencing
On January 20, 2000, the district court
sentenced Luis Carrera to 121 months
imprisonment, four years supervised
release, and a $2,000 fine. David Carrera
was sentenced to 78 months imprisonment
and four years supervised release. In
imposing these sentences, the district
court found that Luis qualified for a
two-level enhancement under United States
Sentencing Guidelines (U.S.S.G.) section
3B1.1(c) for playing a leadership role in
the offense and did not qualify for an
acceptance of responsibility reduction
under U.S.S.G. section 3E1.1. Similarly,
the district court found that David
qualified for an upward enhancement for
obstruction of justice under U.S.S.G.
section 3C1.1. Both defendants timely
filed notices of appeal.
On appeal, Luis and David each raise a
number of issues. Luis argues that the
district court: 1) violated his right to
counsel of choice by denying a
continuance in order to allow him to
obtain new counsel; 2) improperly added
two levels to his offense level for
playing a leadership role in the offense;
and 3) inappropriately denied a reduction
for acceptance of responsibility. David
contends that the district court erred
by: 1) admitting the contents of his
wallet at the time of arrest into
evidence; 2) instructing the jury that he
could be guilty of conspiracy to
distribute cocaine without knowing the
type or quantity of substance that was to
be distributed; and 3) increasing his
offense level for obstruction of justice
without making the required findings.
Both defendants argue that the district
court committed plain error in imposing
four years of supervised release. We will
address each of these claims below,
beginning with the claims of Luis
Carrera.
II. Analysis
A. Luis Carrera
1. Denial of Counsel of Choice
Luis first claims that the district
court erred by arbitrarily refusing to
postpone his trial in order to allow him
the opportunity to retain his counsel of
choice. Before proceeding to Luis’s
arguments, we must address the proper
standard of review in this case. Luis
claims that the district court
erroneously denied him a brief
continuance to secure his attorney of
choice. We find this assertion to be
disingenuous because neither Luis nor his
counsel ever moved for a continuance or
asked the district judge to postpone the
trial./3 Therefore, because no motion
for a continuance was made, our review is
for plain error only. See United States
v. Olano, 507 U.S. 725, 732, 113 S. Ct.
1770, 123 L. Ed. 2d 508 (1993).
Even under a more stringent standard of
review, however, it is clear that the
district court did not violate Luis’s
right to counsel of choice by deciding to
proceed with his trial. The right to
counsel of one’s choice encompassed with
in the Sixth Amendment is not absolute.
See United States v. Rasmussen, 881 F.2d
395, 401 (7th Cir. 1989). Although a
person has the right to be represented by
the counsel of his choice, "[t]his right
is not absolute, but qualified, and must
be balanced against the requirements of
the fair and proper administration of
justice." United States v. Micke, 859
F.2d 473, 480 (7th Cir. 1988). Therefore,
while the denial of a continuance may
infringe upon the defendant’s right to
counsel of choice, see United States v.
Santos, 201 F.3d 953, 958 (7th Cir.
2000), "only an unreasoning and arbitrary
insistence upon expeditiousness in the
face of a justifiable request for delay
violates the right to the assistance of
counsel." Morris v. Slappy, 461 U.S. 1,
11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610
(1983) (internal quotation omitted). To
determine whether the district court
erred in denying a continuance, we "must
consider both the circumstances of the
ruling and the reasons given by the judge
for it." Santos, 201 F.3d at 958.
Luis relies on our decision in Santos
for his argument that the district court
erred in proceeding to trial. In Santos,
defendant’s counsel was unavailable for
the trial date set by the district court,
and the district court refused to grant a
continuance. 201 F.3d at 958. In finding
that the district court erred, we said:
The salient circumstances here are that
the case is not old, the indictment
having come down only two and a half
months before the scheduled trial date .
. . the government did not oppose the
continuance; and the judge had no
scheduling conflict that would have led
to a further delay had he granted the
continuance. Nothing in these
circumstances indicated that the grant
would pose a hardship to anyone.
Id. Luis argues that the factors we found
persuasive in Santos are present and even
more compelling in this case. He claims
that it is clear that the district court
did not properly weigh his right to
counsel against concerns of judicial
administration because his case was not
old, the government did not oppose the
continuance, and the judge had no
scheduling conflict. While we agree that
Luis’s case was not old, Luis ignores the
fact that, because his attorney never
moved for a continuance, we do not know
if the government would have opposed the
motion, if the judge had a scheduling
conflict, or if a continuance would have
caused hardship to any of the parties.
Furthermore, Santos is also
distinguishable because there was no
suggestion that the defendant in that
case was invoking her right to counsel of
choice in order to delay the trial. See
id. at 959. Here, Luis did not timely
inform his attorneys that he wanted to
replace them, he waited until the trial
was a week away. At that point, O’Connor
and Meyer had been representing Luis for
over a month. The untimely nature of
Luis’s motion coupled with its close
proximity to trial as well as the fact
that Luis was unable to name his new
counsel made it reasonable for the
district court to question whether Luis’s
motion was an attempt to delay the trial.
The right to counsel of one’s choice
"does not give an accused the power to
manipulate his choice of counsel to delay
the orderly progress of his case." United
States ex rel. Kleba v. McGinnis, 796
F.2d 947, 952 (7th Cir. 1986) (internal
quotation omitted).
Based on the surrounding circumstances,
we do not think that the district court
arbitrarily decided to proceed to trial.
The fact that the district court
questioned Luis’s attorney as well as
Luis himself in an attempt to discover
whether a new attorney had in fact been
retained demonstrates the district
court’s recognition of Luis’s right to
counsel of his choice. The district judge
also acknowledged this right when she
specifically stated, "[i]f you had
counsel here ready to go to trial, or
would be ready to go to trial by next
week, and somebody who’s admitted to the
bar, qualified to do so, of course I
would grant the motion." In addition,
when Luis’s new attorney did show up on
the second day of trial, the district
court permitted him to enter his
appearance for the purpose of changing
Luis’s plea. Therefore, there was no
plain error in the district court’s
decision to proceed with Luis’s trial as
scheduled.
2. Leadership Role Enhancement
Luis next argues that the district court
erroneously concluded that he played a
leadership role in the offense and
therefore qualified for a two-level
upward enhancement under U.S.S.G. section
3B1.1(c). We review the district court’s
decision to make an upward adjustment
based on the defendant’s role in the
offense for clear error. See United
States v. Lemmons, 230 F.3d 263, 265 (7th
Cir. 2000), cert. denied, 121 S. Ct. 824,
148 L. Ed. 2d 707 (2001). A finding that
a defendant played a leadership role "is
clearly erroneous ’only if, after
reviewing the entire evidence, we are
left with the definite and firm
conviction that a mistake has been committed.’"
United States v. Matthews, 222 F.3d 305,
307 (7th Cir. 2000), cert. denied, 121 S.
Ct. 500, 148 L. Ed. 2d 470 (2000)
(quoting United States v. Granado, 72
F.3d 1287, 1290 (7th Cir. 1995)). If the
fact finder decides between two
permissible interpretations of the
evidence, we will not find the decision
to be clearly erroneous. See id.
The Application Notes to section 3B1.1
instruct the sentencing judge to consider
seven factors in order to determine if an
aggravating role enhancement is
warranted. See U.S. Sentencing Guidelines
Manual sec. 3B1.1, cmt n.4 (1998). These
factors include:
the exercise of decision making
authority, the nature of participation in
the commission of the offense, the
recruitment of accomplices, the claimed
right to a larger share of the fruits of
the crime, the degree of participation in
planning or organizing the offense, the
nature and scope of the illegal activity,
and the degree of control and authority
exercised over others.
Id. In adopting the Pre-Sentence
Investigation Report’s (PSR)
recommendation of a two-level increase to
Luis’s base offense level for playing a
leadership role, it is clear that the
district court focused on several of the
factors listed above. Specifically, the
district court found that Luis involved
his brother in the offense, had decision
making authority, expected a larger share
of the profits, and obtained the cocaine
himself by traveling to Mexico.
Luis takes issue with the district
court’s findings. First and foremost, he
argues, there is no evidence that he had
"the sort of real and direct influence
[over David] . . . that the enhancement
was designed to punish." United States v.
Mankiewicz, 122 F.3d 399, 406 (7th Cir.
1997) (internal quotation omitted).
Second, he claims that he was simply an
average participant in a scheme
orchestrated by Soto and did not have any
realistic expectation of obtaining a
larger share of profit from the deal. To
support this theory, Luis points to a
recorded conversation between Soto and
Salazar in which Soto states that they
wouldn’t have to give Luis "that much" in
order to get him to make the delivery.
Luis also submits that there is no
evidence that he had any decision making
authority beyond the ability to determine
the time of the transaction.
In spite of Luis’s argument that he was
nothing more than Soto’s "glorified
mule," we cannot find that the district
court clearly erred in finding that Luis
played a leadership role in the offense.
Although Luis argues that there is no
evidence that he did or could have
exercised control over his brother, an
upward adjustment under section 3B1.1(c)
does not require an explicit finding that
the defendant exercised control, "so long
as the criminal activity involves more
than one participant and the defendant
played a coordinating or organizing
role." United States v. Bush, 79 F.3d 64,
67 (7th Cir. 1996) (internal quotation
omitted); see also United States v.
Billingsley, 115 F.3d 458, 465 (7th Cir.
1997). As we have stated, "the overall
focus under sec. 3B1.1 is relative
responsibility within a criminal
organization." Bush, 79 F.3d at 67. It is
evident from the record that Luis
possessed sufficient responsibility to
support a leadership role enhancement
from the fact that he obtained the drugs,
set up the time and place for the
delivery, recruited his brother as an
accomplice, and claimed rights to $17,000
out of $19,500 per kilogram of cocaine.
Therefore, we uphold the district court’s
determination that Luis qualified for an
upward enhancement under section
3B1.1(c).
3. Acceptance of Responsibility
Reduction
Luis Carrera next contests the district
court’s refusal to award a two-level
reduction under U.S.S.G. section 3E1.1.
Section 3E1.1 provides that a defendant
is entitled to a two-level reduction in
base offense level if he clearly
demonstrates acceptance of responsibility
for his actions. See U.S. Sentencing
Guidelines Manual sec. 3E1.1 (1998). Of
course, a defendant is not entitled to an
acceptance of responsibility reduction as
a matter of right simply because he
pleaded guilty. See United States v.
Morris, 76 F.3d 171, 175-76 (7th Cir.
1996). In order to establish entitlement
to this reduction, a defendant must show
by a preponderance of the evidence that
he: "(1) clearly recognized and accepted
responsibility for his conduct; (2)
timely notified authorities of his
intention to enter a plea of guilty; and
(3) truthfully admitted the conduct
comprising the offense of conviction and
admitted . . . the relevant conduct as it
relates to the offense of conviction."
United States v. Sierra, 188 F.3d 798,
804 (7th Cir. 1999). We will affirm the
district court’s findings so long as they
are not clearly erroneous. See United
States v. Galbraith, 200 F.3d 1006, 1015
(7th Cir. 2000).
Luis claims that the district court
based its denial of the reduction on the
fact that he did not plead guilty until
the second day of trial, and he submits
that the delayed plea was a result of the
district court’s erroneous refusal to
postpone the trial to allow his new
attorney to enter his appearance.
According to Luis, if a continuance had
been granted at the pre-trial hearing, or
even if Ciardelli had been allowed to
enter his appearance on the morning of
the first day of trial, he would have
pleaded guilty before the jury was
empaneled and thus been entitled to the
reduction.
As we explained in Part II.A.1 above, it
was not improper for the district court
to proceed to trial. Moreover, even if
the district court had allowed Ciardelli
to enter his appearance the morning that
the trial began, a denial of the
reduction would still have been
justified. See Sierra, 188 F.3d at 805
(upholding a determination that the
defendant did not accept responsibility
because he pleaded guilty on the last
business day before the trial). Second,
although lack of timeliness was certainly
one of the district court’s reasons for
denying the reduction, it is clear that
the district court also found that Luis’s
admissions were not trustworthy. During
sentencing, the district judge explained
her rationale for denying the acceptance
of responsibility reduction as follows:
[E]ven if I had permitted Mr. Ciardelli
to disrupt the trial, send the jury back
down to the jury room . . . I would not
have viewed that as timely acceptance of
responsibility, even under that scenario.
So, in terms of timeliness, I think the
record itself refutes entitlement to
consideration for reduction for
acceptance of responsibility. In terms of
the contradictory statements Mr. Luis
Carrera has made about his own conduct, I
find that there is a lack of
trustworthiness in his admissions, his
limited admissions, and his changing
admissions. So I find that the
presentence report’s omission of a
reduction for accepting responsibility is
a valid one, and I cannot find by a
preponderance of the evidence that Mr.
Luis Carrera accepted responsibility.
Tr. of Luis Carrera’s Sentencing Hr’g. at
8.
Although Luis acknowledges that the
district court did find his admissions to
be untrustworthy, he claims that we
should remand for resentencing because it
is not clear whether the district court
would have denied the acceptance of
responsibility reduction based solely on
its finding that Luis was not completely
truthful. We disagree. Even if the
district court incorrectly determined
that Luis’s acceptance of responsibility
was untimely, its finding that Luis was
not completely honest in his admissions
is an appropriate independent
justification for denying the reduction.
See United States v. Kamoga, 177 F.3d
617, 622 (7th Cir. 1999), cert. denied,
528 U.S. 942, 120 S. Ct. 355, 145 L. Ed.
2d 277 (1999) (holding that a defendant
is not entitled to an acceptance of
responsibility reduction if he fails to
provide a "truthful and complete"
admission); see also United States v.
Purchess, 107 F.3d 1261, 1269 (7th Cir.
1997) (affirming sentence where district
court’s "denial of the acceptance of
responsibility reduction [was] well
grounded in a permissible factor").
Therefore, we uphold the district court’s
finding that Luis was not entitled to a
two-level reduction for acceptance of
responsibility.
B. David Carrera
1. Admission of Wallet Contents
David contends that the district court
erred in admitting into evidence the
contents of his wallet at the time of his
arrest, thereby allowing the government
to unfairly argue on rebuttal that David
must be a drug dealer because he had
unexplained wealth. At trial, David’s
attorney objected to the admission of the
contents of the wallet, but did not
object to the government’s statements
during rebuttal which referred to those
contents. Therefore, our review of the
district court’s evidentiary rulings is
for abuse of discretion, see United
States v. Gibson, 170 F.3d 673, 680 (7th
Cir. 1999), but our review of the
government’s comments during rebuttal is
for plain error only, see United States
v. Anderson, 61 F.3d 1290, 1299 (7th Cir.
1995).
Over David’s objection, the contents of
his wallet at the time of his arrest--
which included $928 in cash as well as
receipts for purchases totaling
approximately $2500--were admitted into
evidence during the government’s direct
examination of one of the arresting
officers, Investigator Woytko. Both
Investigator Woytko and David testified
briefly as to the amount of cash found in
David’s wallet at the time of arrest, but
neither witness discussed the receipts.
Then, during rebuttal, the prosecutor
made the following statement:
And again, this money . . . this $928
that the defendant has in his pocket when
he’s arrested. Not bad for a guy who is
unemployed, who’s been unemployed for
quite some time. In addition, if you look
at those receipts that were found in
there, you will find another 25-2600
dollars’ worth of receipts in
expenditures that the defendant did
within the two weeks preceding that drug
deal. Not bad for a guy who is
unemployed, has no money.
Tr. of Trial of David Carrera at 294.
David argues that the admission of the
wallet’s contents--which led to
thestatement about unexplained wealth in
rebuttal--was erroneous because the
evidence was irrelevant and confusing.
We disagree with David’s contention that
the contents of his wallet were
irrelevant to the jury’s determination of
his guilt. "Expensive trips, gambling,
and other instances of free spending and
high living may be pertinent in
crimesinvolving a motive of enrichment."
United States v. Kwitek, 467 F.2d 1222,
1225 (7th Cir. 1972). Similarly, evidence
of unexplained wealth is admissible in
drug cases as long as: (1) the evidence
presented creates an inference that the
defendant was involved in drug
trafficking; (2) the unexplained wealth
was acquired during the period in which
the drug crime allegedly occurred; and
(3) the government presents other
evidence to support the charge, including
evidence that the income was not obtained
through legitimate means. See United
States v. Penny, 60 F.3d 1257, 1263 (7th
Cir. 1995).
David contends that the government
failed to show any evidence that the
money was not obtained through legitimate
means. He claims that, although the
government argued in rebuttal that David
was unemployed at the time of the drug
deal, no evidence was presented to that
effect. According to David, the
government based its claim that he was
unemployed at the time of the drug
transaction on a "misunderstanding" of
his trial testimony. On direct
examination, David was asked whether he
was working on the day of his arrest and
he replied no. When asked why, he stated,
"cause I was off--I was off because the
doctor told me to be off because I had a
. . . I was sick, really." Then, on
cross, the following exchange took place:
Q: Mr. Carrera, when you were arrested
you had a lot of money on you, didn’t
you?
A: I don’t know. Like how much you say
is a lot of money?
Q: Like $928.28, you consider that a lot
of money?
A: Yeah, it’s quite--it’s some, yes.
Q: You were not working at the time you
were arrested, were you?
A: That’s correct.
If David’s first answer was the only
evidence that he was unemployed at the
time of his arrest, he might have a
stronger claim. Given the second exchange
however, we can not say that the district
court abused its discretion in finding
that the government had presented at
least some evidence that the unexplained
wealth was not derived from legitimate
means.
We also reject David’s claim that it was
improper for the government to argue in
closing that David had unexplained wealth
because $900 in cash and receipts for a
few luxury items do not suggest "wealth."
How much money is "wealth" is an issue
that the jury is well-equipped to
evaluate. Moreover, even if the
government’s claim that David was
unemployed at the time of the transaction
was incorrect, the government’s
statements did not "infect the trial with
unfairness to such a degree as to make
the resulting conviction a denial of due
process." United States v. McClinton, 135
F.3d 1178, 1188 (7th Cir. 1998) (internal
quotation omitted). So long as "the jury
has evidence in its possession and is
equipped to ascertain whether the
government’s characterization is
accurate, a statement characterizing that
evidence is not improper." United States
v. Velez, 46 F.3d 688, 692 (7th Cir.
1995).
2. Jury Instructions
David next argues that his conviction
must be reversed because the district
court committed plain error by
instructing the jury that the government
was not required to prove that the
defendant knew either the exact nature or
quantity of the controlled substance
involved in the offense. He argues that
the Supreme Court’s recent decision
inApprendi v. New Jersey, 530 U.S. 466,
490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), requires the government to submit
to the jury the question of whether David
knew that the substance involved in the
offense was cocaine. David did not
challenge the jury instructions below,
therefore our review is for plain error.
See United States v. Jones, 245 F.3d 645,
648 (7th Cir. 2001).
David’s argument that Apprendi required
the government to prove beyond a
reasonable doubt that he knew the
quantity and type of controlled substance
involved in the conspiracy falls short. A
defendant may be convicted of a violation
of 21 U.S.C. sec. 846 without knowing the
exact type of drug involved. See United
States v. Sheppard, 219 F.3d 766, 770
(8th Cir. 2000), cert. denied, 121 S. Ct.
1208, 149 L. Ed. 2d 121 (2001); United
States v. Osmani, 20 F.3d 266, 268 & n.5
(7th Cir. 1994). The government need only
prove that the defendant was aware that
some controlled substance was involved.
See United States v. Fragoso, 978 F.2d
896, 902 (5th Cir. 1992). Apprendi does
not change this rule. Apprendi requires
that "[o]ther than the fact of a prior
conviction, any fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a
jury and proved beyond a reasonable
doubt." 530 U.S. at 490. With respect to
sec. 846, the defendant’s knowledge of
the quantity and type of controlled
substance is not a fact that may be used
to increase the penalty beyond the
statutory maximum--only the actual
quantity and type of controlled substance
may increase the statutory maximum. Here,
the jury was required to find beyond a
reasonable doubt that David conspired to
commit an offense involving a controlled
substance. Moreover, although the jury
was not required to find the quantity of
cocaine involved, David’s sentence of 78
months was well within the statutory
maximum of 20 years provided by 21 U.S.C.
sec. 841(b)(1)(C). See Jones, 245 F.3d at
649. (explaining that, for offenses
involving cocaine, sec. 841(b)(1)(C)
determines the statutory maximum if no
drug amount is charged in the indictment
and submitted to the jury). Therefore,
there is no Apprendi error. See Talbott
v. Indiana, 226 F.3d 866, 869 (7th Cir.
2000) ("[W]hen a drug dealer is sentenced
to less than 20 years imprisonment--the
limit under 21 U.S.C. sec. 841(b) (1)(C)-
- . . . Apprendi is irrelevant.").
3. Obstruction of Justice Enhancement
David Carrera next challenges the
specificity of the district court’s
findings underlying its decision to apply
a two-level obstruction of justice
enhancement for perjury. Perjury is an
appropriate basis for an obstruction
enhancement under U.S.S.G. section 3C1.1;
however, "not every instance of false
testimony under oath warrants the
enhancement." United States v. Gage, 183
F.3d 711, 715 (7th Cir. 1999). Instead,
the enhancement is limited to situations
in which "a defendant ’gives false
testimony concerning a material matter
with the willful intent to provide false
testimony, rather than as a result of
confusion, mistake, or faulty memory.’"
United States v. Turner, 203 F.3d 1010,
1020 (7th Cir. 2000) (quoting United
States v. Dunnigan, 507 U.S. 87, 94, 113
S. Ct. 1111, 122 L. Ed. 2d 445 (1993)).
Standing alone, the fact that a defendant
denied his guilt at trial and then was
found guilty is not enough to merit a
section 3C1.1 enhancement. See United
States v. Webster, 125 F.3d 1024, 1037
(7th Cir. 1997). To properly support an
enhancement for obstruction of justice,
the district court must make independent
findings as to all of the elements of
perjury: falsity, willfulness, and
materiality. See Turner, 203 F.3d at
1020. We review de novo whether the
district court made the appropriate
findings to support an obstruction of
justice enhancement. See Gage, 183 F.3d
at 715. The district court’s underlying
findings of fact are reviewed for clear
error. See id.
David claims that his case should be
remanded for resentencing because the
district court failed to make sufficient
findings to support the imposed
enhancement for obstruction of justice.
At David’s sentencing hearing, the
district court explained:
Well, I do find by a preponderance of the
evidence that the defendant, David
Carrera, testified untruthfully at his
trials. And I base this on the total
record before me during those two trials.
Mr. Carrera’s own prior post-arrest
statements, which were inherently more
reliable than his trial testimony where
he basically denied the matters he
affirmed during his post-arrest
statement. So I find that he was
untruthful by a preponderance of the
evidence.
Tr. of David Carrera’s Sentencing Hr’g.
at 11. David argues that the district
court’s findings were insufficient
because they did not refer to any
specific answer that was false and that
neither the above explanation nor the PSR
adequately found the elements of perjury
necessary to support the enhancement.
We disagree. David’s contention that the
district court utterly failed to identify
the source of the perjured testimony is
belied by the record. Although the
district court did not identify exact
statements that were perjurious, the dis
trict court did specifically point to
testimony that conflicted with the
agents’ account of David’s post-arrest
statements-- his denial of the fact that
he knew his brother was a drug dealer and
that he was going along to help count the
money--as the source of its belief that
David testified untruthfully. Nor are we
convinced by David’s argument that the
district court’s findings of the elements
of perjury were insufficient.
In United States v. Dunnigan, 507 U.S.
87, 113 S. Ct. 1111, 122 L. Ed. 2d 445
(1993), the Supreme Court stated that "it
is preferable for a district court to
address each element of the alleged
perjury in a separate and clear finding,"
but also noted that a section 3C1.1
enhancement that did not specifically
address each element could be upheld on
the condition that "the [district] court
makes a finding of an obstruction of, or
impediment to, justice that encompasses
all of the factual predicates for a
finding of perjury." Id. at 95. David is
correct that the district court in his
case did not take the preferred route and
indicate its findings with respect to
each element of perjury. We believe,
however, that the district court’s
findings did encompass falsity,
willfulness, and materiality.
It is clear that the district court
found that David’s testimony at trial
contradicted the arresting officers’
account of his earlier post-arrest
statements, and that the officers’
account was inherently more reliable. In
United States v. Turner, we upheld the
district court’s application of a section
3C1.1 enhancement based on its finding
that the defendant’s "testimony was so
diametrically opposed to that of the
other witnesses that one version had to
be a lie." 203 F.3d at 1020. Like the
defendant in Turner, David’s trial
testimony was irreconcilable with the
testimony of other witnesses. Nor has
David ever claimed that the inconsistent
testimony was the result of confusion,
mistake, or faulty memory. Moreover,
there can be no doubt that the district
court considered David’s knowledge of his
brother’s drug dealing activities to be
material.
Therefore, although it is close, we find
that the district court’s findings do
encompass all of the required elements of
perjury. Because we do not believe that
the district court "mechanically
appl[ied] the enhancement merely because
the accused took the stand and was found
guilty," see United States v. Brimley,
148 F.3d 819, 824 (7th Cir. 1998)
(internal quotation omitted), we uphold
the district court’s application of a
two-level enhancement for obstruction of
justice.
C. Supervised Release
Both David and Luis Carrera rely on
Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 434 (2000), to
support their argument that they are
entitled to resentencing--or at least a
one-year reduction in their terms of
supervised release--because the district
court imposed four years of supervised
release on each defendant under the
erroneous belief that four years was the
proper mandatory minimum term. Neither
defendant objected to the length of
supervised release imposed at sentencing;
therefore, our review is for plain error.
See United States v. Robinson, 250 F.3d
527, 529 (7th Cir. 2001).
Both defendants received terms of
supervised release within the maximum
term authorized by 21 U.S.C. sec. 841(b)
(1)(C), which applies to defendants who
are found guilty of a drug offense
involving any quantity of a Schedule II
controlled substance. See United States
v. Shorty, 159 F.3d 312, 315 & n.6 (7th
Cir. 1999), cert. denied, 526 U.S. 1147,
119 S. Ct. 2024, 143 L. Ed. 2d 1035
(1999) (finding that sec. 841(b) (1)(C)
establishes a minimum of three years of
supervised release and a maximum of
life). Nonetheless, defendants challenge
the imposed term of four years of
supervised release, arguing that the
district court erred in sentencing them
under sec. 841(b)(1)(B), which applies to
quantities of cocaine exceeding 500
grams. Section 841(b)(1)(B) provides for
"a term of supervised release of at least
4 years." According to the Carreras, the
district court’s finding that the
offenses involved over 500 grams of
cocaine violated the rule announced by
the Supreme Court in Apprendi because it
resulted in a mandatory minimum term of
supervised release. Even if we were not
proceeding under a plain error standard,
this claim fails. We have made it quite
clear that Apprendi does not "govern[ ]
proof of events that determine the
minimum lawful sentence." United States
v. Hill, 252 F.3d 919, 921 (7th Cir.
2001); see also United States v. Rodgers,
245 F.3d 961, 966-68 (7th Cir. 2001)
("Indeed, since Apprendi was decided, we
have specifically rejected the notion
that a factual determination which has
the effect of triggering a mandatory
minimum sentence constitutes an element
of the offense that must be submitted to
the jury."). We therefore reject the
defendants’ challenge to the imposed
terms of supervised release.
III. Conclusion
For the foregoing reasons, we AFFIRM the
convictions and sentences of Luis and
David Carrera.
FOOTNOTES
/1 To avoid confusion, we will refer to Luis and
David Carrera by their first names.
/2 Luis’s first court appointed attorney, Latricia
Kenyatta Tatum, withdrew as counsel at Luis’s
preliminary hearing and was replaced by retained
counsel Jack P. Rimland. Rimland was then re-
placed by Meyer at Luis’s arraignment, on Septem-
ber 22, 1999.
/3 Luis claims his statements to the district court
should be construed as a request for a continu-
ance because the district judge spoke directly to
him regarding his proposed change of counsel. We
might be inclined to accept this argument if Luis
had indicated to the district court that more
time would be helpful in securing his counsel of
choice, but Luis did little more than reiterate
his request for his current attorneys not to
represent him at trial.