United States v. Alanis, Antonio

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3073

United States of America,

Plaintiff-Appellee,

v.

Antonio Alanis,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:00CR0008--Robert L. Miller, Jr., Judge.

Argued February 13, 2001--Decided September 7, 2001

Before Manion, Kanne, and Evans, Circuit

Judges.

Kanne, Circuit Judge. Antonio Alanis,

defendant-appellant, was convicted of

conspiracy to distribute cocaine, two

counts of possession with intent to

distribute cocaine, one count of

possession with intent to distribute

marijuana, and two counts of being a

felon in possession. He was sentenced to

a term of imprisonment of 468 months, to

be followed by five years of supervised

release. Alanis appeals his conviction,

alleging that a myriad of errors

werecommitted by the district court judge

and the prosecuting attorney. Because we

find that Alanis was not prejudiced by

the errors that were made, we affirm his

conviction.

I. History

We review the district court’s findings

of fact for clear error. See United

States v. O’Brien, 238 F.3d 822, 825 (7th

Cir. 2001)./1 The numerous drug

transactions with which Alanis was

involved began, for the purposes of this

appeal, in June 1998. Alanis offered

Stephen Moore money to help him unload a

shipment of marijuana. He also asked

Moore to find a suitable location. Moore

proposed the property of his friend,

Raymond Selke, in Michigan City, Indiana,

and Alanis agreed to this location.

Alanis, Moore, and Selke subsequently

unloaded approximately 180 pounds

ofmarijuana from the refrigerated semi-

trailer that was delivered to Selke’s

residence. Alanis paid Selke and Moore

$9000 for their work.

Marijuana apparently was not lucrative

enough because the three men entered into

an agreement to deal in cocaine. Alanis

directed Selke to buy an International

semi-tractor and provided him with the

money to do so. At Alanis’s behest, Selke

had his driver, Raymond Henckel, drive

the newly-purchased truck from Indiana to

Texas in the spring of 1999. Selke,

Moore, and Alanis flew to Texas on July

5, 1999; the reservation had been made

that morning by a woman named Sarah (the

name of Alanis’s wife). A few days later,

the truck was delivered to Alanis in

Texas, and Selke and Moore drove it back

to Indiana. Alanis returned home via

commercial airline. Upon arrival in

Indiana, Selke, Moore, and Alanis

unloaded the 135 kilogram-sized packages

of cocaine that had been hidden in a

false fuel tank in the tractor. Alanis

paid Selke and Moore $30,000 for their

efforts.

The evidence at trial demonstrated that

seven separate cocaine loads were

transported from Texas to Indiana. In

addition to the first load in July 1999,

Selke and Moore drove three loads to

Indiana (one load with 720 packages of

cocaine in August 1999, one load with 540

packages in September, and one load with

540 packages in October), Henckel drove

one load (with 540 packages in October),

and Alanis arranged for two loads to be

brought to Indiana by an independent

driver (one with 405 packages at an

unspecified date, the other with 422

packages in November). Moore and Selke

helped Alanis unload the cocaine in each

of these instances. Testimony at trial

indicated that Alanis paid Selke and

Moore $90,000 for their work on the

August 1999 load alone. In all, the seven

loads involved 3,302 one-kilogram

packages of cocaine.

It was the November 1999 load that

brought the conspiracy to an end. When

the independent driver arrived on

November 4, Alanis, Moore, and Selke met

at Selke’s home to unload the semi. They

moved the 422 packages of cocaine into a

Chevy pickup truck that Alanis had

brought to the premises. Unfortunately

for the conspirators, agents had been

performing surveillance at both Alanis’s

and Selke’s residences. When Selke and

Alanis left in the unloaded semi, they

were stopped by police. Agents ordered

the two occupants out of the truck and

found a fake bill of lading indicating

that the now empty semi had been carrying

cargo from "Alro Steel" in South Bend.

From that point forward, Selke agreed to

cooperate with the authorities. He

consented to a search of his property,

and the agents seized the 422 packages of

cocaine as well as the pickup truck. Lab

oratory analysis confirmed that the 422

kilograms of seized substances were

cocaine.

After Selke agreed to cooperate, Moore

also agreed to cooperate. Both testified

at Alanis’s trial, and a substantial

amount of the evidence at trial was

derived from their testimony. As the

district court noted, "[t]heir testimony

was well corroborated by travel records,

telephone records, and the testimony of

each other." United States v. Alanis, No.

3:00CR0008RM, slip op. at 2 (N.D. Ill.

Aug. 4, 2000) (sentencing memorandum).

Both of the semi-tractors used to

transport the drugs to Indiana were

examined by agents, and the compartments

in which the cocaine had been hidden were

photographed and measured. Airline

records placed Alanis in Texas at times

consistent with the witness testimony;

reflected that someone named Sarah made

flight reservations for Alanis, Moore,

and Selke when they traveled in July and

August; reflected that someone named

Sarah made flight reservations for Moore

and Selke when they traveled in

September; and corroborated the times

that Henckel had been in Texas. Telephone

records corroborated the extensive phone

contact between Alanis, Selke, and Moore-

-178 calls from January 9, 1999 to

November 4, 1999--and also demonstrated

that all telephone contact terminated on

November 4, 1999, the date the agents

made the seizure at Selke’s residence.

Law enforcement agents arrested Alanis

at his home on January 27, 2000, and

searched his home pursuant to a warrant.

They found a 9mm pistol in a bedside

nightstand in the master bedroom. Next to

the pistol were a pair of eyeglasses

similar in appearance to those worn by

Alanis at trial, and men’s clothing and

Alanis’s wallet were found nearby. Agents

also found a .22 caliber Marlin rifle in

a cabinet in the basement of Alanis’s

home. There was evidence that both

weapons had crossed state lines before

they arrived in Indiana.

The original indictment, which charged

only two counts, was superceded by a

seven-count indictment returned on March

9, 2000. Alanis pleaded not guilty and

proceeded to trial. On April 3, 2000, a

jury found Alanis guilty of conspiracy to

distribute cocaine in violation of 21

U.S.C. sec. 846 (Count I), one count of

possession with intent to distribute

marijuana in violation of 21 U.S.C. sec.

841(a)(1) (Count II), two counts of

possession with intent to distribute

cocaine in violation of 21 U.S.C. sec.

841(a)(1) (Counts IV and V), and two

counts of possessing a firearm after a

felony conviction in violation of 18

U.S.C. sec. 922(g) (Counts VI and VII of

the indictment). The judge sentenced

Alanis to 468 months on each of counts I,

IV, and V; a term of 240 months on count

II; and a term of 120 months on each of

counts VI, and VII; all to be served

concurrently. After entry of Judgment on

August 4, 2000, Alanis filed his notice

of appeal.

II. Analysis

Alanis makes a number of claims on

appeal. He asserts that his rights were

violated in contravention of the Sixth

Amendment, the Equal Protection Clause,

the Due Process Clause, the Fifth

Amendment, and the rule set forth by the

Supreme Court in Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.

2d 435 (2000). He also challenges the

sufficiency of the evidence relied on to

convict him and requests a new trial. We

will address each of these arguments in

turn.

A. Sixth Amendment Claim

Alanis alleges that he was deprived of

his Sixth Amendment right to a jury pool

representing a fair cross-section of the

community because the venire included

only one black person and no Hispanics.

Alanis presents a mixed question of law

and fact which we review de novo, United

States v. Raszkiewicz, 169 F.3d 459, 462

(7th Cir. 1999), though the district

court’s factual determinations are

reviewed for clear error, United States

v. Smallwood, 188 F.3d 905, 914 (7th Cir.

1999), cert. denied, 528 U.S. 1129, 120

S. Ct. 964, 145 L. Ed. 2d 836 (2000). To

establish a violation of the fair cross-

section requirement, Alanis must show:

(1) that the group alleged to be excluded

is a ’distinctive’ group in the

community; (2) that the representation of

this group in venires from which juries

are selected is not fair and reasonable

in relation to the number of such persons

in the community; and (3) that this under

representation is due to systematic

exclusion of this group in the

jury-selection process.

Johnson v. McCaughtry, 92 F.3d 585, 590

(7th Cir. 1996) (citing Duren v.

Missouri, 439 U.S. 357, 364, 99 S. Ct.

664, 58 L. Ed. 2d 579 (1979)). The

district court found that, even if Blacks

and Hispanics could be combined as one

group, Alanis failed to demonstrate the

existence of the second and third

elements.

We agree that Alanis did not satisfy the

Duren standard. In the South Bend

Division of the Northern District of

Indiana, jury venires are drawn from

eleven counties, yet Alanis only

presented statistical evidence about the

racial composition of St. Joseph County,

the county in which the district court

was located. Without evidence about the

total representation of Blacks and

Hispanics in the community from which the

venire was drawn, there is no way to

determine whether the representation in

the venire was not fair and reasonable.

Without proof that any "distinctive

group" is under-represented, we cannot

determine that such a group was excluded

from the jury-selection process. We thus

decline to find that Alanis was deprived

of his Sixth Amendment right to a jury

pool representing a fair cross-section of

the community.

B. Equal Protection Claims

1. Allegation of Purposeful Racial

Discrimination

Alanis alleges that the government

violated his right to equal protection of

the law when it used a peremptory

challenge to strike the only black member

of the jury venire. At the time of the

strike, defense counsel objected based

upon Batson v. Kentucky, 476 U.S. 79, 106

S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

Under Batson, a court must follow a three

stage analysis to determine whether a

peremptory strike was discriminatory: (1)

the defendant must make a prima facie

showing of discrimination, (2) the

prosecution must then present a

race-neutral explanation for striking the

juror, and (3) "the trial court must

decide whether the prosecution’s reasons

are pretextual and whether the defendant

has proven purposeful discrimination."

United States v. Jordan, 223 F.3d 676,

686 (7th Cir. 2000).

Here, when the district court asked the

prosecution to explain his reasons for

the strike, the prosecutor explained as

follows:

I’m striking Mr. Cutler because of his

lack of education [and] the fact that

he’s unemployed. In particular, . . . he

said that he was trying to get a high

school diploma. His form indicated that

he only had 3 years of education, and I

think he was talking about grade school.

If he has 3 years of high school, we

don’t know. Thereason is because lack of

education.

Tr. of Trial Proceedings at I-143. The

district court determined that these were

legitimate, non-discriminatory reasons

for striking a potential juror and

overruled the Batson challenge. When

reviewing a district court’s

determination that a peremptory challenge

was not motivated by racial

discrimination, we will uphold that

determination unless it was clearly

erroneous. United States v. Jones, 224

F.3d 621, 624 (7th Cir. 2000).

Peremptory strikes may be made for a

variety of reasons, so long as they are

not race based, United States v.

Smallwood, 188 F.3d 905, 915 (7th Cir.

1999), and lack of education is an

acknowledged, non-discriminatory reason

for striking a juror, see United States

v. Marin, 7 F.3d 679, 686-87 (7th Cir.

1993) ("The attainment of a certain

educational level has been accepted by

numerous circuits as a raceneutral

criterion for exercising a peremptory

challenge under the Batson mandate, and,

as far as we can determine, has been

rejected by none."). Alanis has not

presented the court with evidence that

the prosecution’s reasons were

pretextual. See Jones, 224 F.3d at 624

(noting that the opponent of the strike

bears the burden of proving racial

discrimination) (citing Purkett v. Elem,

514 U.S. 765, 768, 115 S. Ct. 1769, 131

L. Ed. 2d 834 (1995)). We thus find that

the district court’s ruling, determining

that the prosecution’s reasons were non-

discriminatory, was not clearly

erroneous.

2. Allegation of Selective Prosecution

At time of trial, Alanis’s co-

conspirators--Moore and Selke--had not

been prosecuted, and Alanis asserts that

the reason he was prosecuted and they

were not is that he is Hispanic. Alanis

moved to dismiss based on selective

prosecution and the district court denied

the motion. We review a district court’s

decision to deny a motion to dismiss an

indictment for an abuse of discretion.

See United States v. McMutuary, 217 F.3d

477, 481 (7th Cir. 2000), cert. denied,

___ U.S. ___, 121 S. Ct. 502, 148 L. Ed.

2d 471 (2000).

Criminal defendants bringing selective

prosecution claims must show "that the

federal prosecutorial policy had a

discriminatory effect and that it was

motivated by a discriminatory purpose."

United States v. Hayes, 236 F.3d 891, 895

(7th Cir. 2001) (quotation omitted). To

establish discriminatory effect, the

defendant must show "that similarly situ

ated individuals of a different race were

not prosecuted." Id.; see also Chavez v.

Ill. State Police, 251 F.3d 612, 638 (7th

Cir. 2001). Alanis intimates that no

factor other than race distinguished him

from those who were not being prosecuted.

In the court below, the prosecutor first

explained that Selke and Moore probably

would be prosecuted at some future date.

He then asserted that Alanis was not

similarly situated to Selke or Moore for

two main reasons: 1) the government

believed that Alanis played a larger role

in the conspiracy because he had

initiated the drug trafficking and also

directed the activities of Selke and

Moore, and 2) Selke and Moore were

cooperating with the government (and

eventually testified at Alanis’s trial).

The court agreed that the fact that Selke

and Moore were cooperating with the

government distinguished them from Alanis

and thus denied the motion to dismiss.

Tr. of Trial Proceedings at I-61 (citing

Jarrett v. United States, 822 F.2d 1438,

1444 (7th Cir. 1987) (finding that the

defendant was not similarly situated to

his accomplices because they both agreed

to cooperate with the government whereas

he refused to do so)).

While a criminal defendant is certainly

not required to cooperate with the

government, it is axiomatic that an

individual who decides not to cooperate

with the government is not similarly

situated to one who does cooperate. See

Jarrett, 822 F.3d at 1444. The district

court noted that, if the "bigger picture

showed that in all similar cases the non-

Mexican suspects were given an

opportunity to cooperate to the exclusion

of those of Mexican descent, obviously

the issue might well be different." Tr.

of Trial Proceedings at I-61, 62. Yet, as

the district court noted, such was not

the case here. Instead, one conspirator

decided not to cooperate while the others

did. We thus find that the district court

did not abuse its discretion in denying

the motion to dismiss on the basis of

selective prosecution.

C. Due Process Claims

1. Brady Claim

Alanis asserts that the government

violated its obligation under Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10

L. Ed. 2d 215 (1963), by suppressing

evidence material to the defense, namely,

the government’s immunity agreements with

the testifying co-conspirators. Alanis

alleges that the co-conspirators "had

some sort of immunity" and that the

disclosure of such information would have

allowed the defense to impeach the

motivation and credibility of the

government witnesses. In response, the

government asserts that there were no

immunity agreements to disclose, and thus

no Brady obligations were violated.

Further, the government points out that

the defense knew the co-conspirators were

not being prosecuted and that the defense

used this information at trial to attack

the credibility of these witnesses. The

district court found that the disputed

evidence was not material under Brady, a

ruling that we review for abuse of

discretion. See United States v. Cruz-

Velasco, 224 F.3d 654, 662 (7th Cir.

2000).

At trial, a prosecution witness

acknowledged that agents had initially

planned not to charge Selke, and Alanis

asserts that this information should have

been disclosed to the defense at the

outset. While both Selke and Moore were

likely hopeful that they would not be

prosecuted, neither of them were given

immunity in exchange for their testimony

at trial and the government had not

agreed not to prosecute them. The only

guarantee Selke and Moore had was a Rule

11 promise that the information each of

them provided would not be used against

them (though anything Selke said could be

used against Moore and vice versa) and

the defense was aware of the letters. The

defense was also aware that the co-

conspirators were not being prosecuted at

the time of Alanis’s trial and, as noted

above, it used this information to

question the witnesses’ credibility.

Alanis has failed to demonstrate that

"the prosecution suppressed evidence . .

. favorable to the defense . . . that .

. . was . . . material to an issue at

trial." United States v. Payne, 102 F.3d

289, 293 (7th Cir. 1996). We thus find

that the district court did not abuse its

discretion in rejecting Alanis’s Brady

claim.

2. Prosecutorial Misconduct Claims

Alanis alleges that the prosecutor

improperly vouched for the credibility of

various witnesses and gave personal opin

ions of things not in evidence. The first

claim is presented in four sentences with

one pertinent citation. The other claim

is slightly more thorough but lacks

citation to anything of precedential

value. Both claims are so weakly

developed and devoid of merit that we

decline to address them. See Jones, 224

F.3d at 626 ("Arguments that are not

adequately developed or supported are

waived, ergo we do not consider [them].")

(citation omitted).

D. Fifth Amendment Claim

Alanis asserts that the prosecution

improperly commented on his failure to

testify, in violation of his Fifth

Amendment right to remain silent. He

presents a series of statements made in

the prosecutor’s closing argument which,

he asserts, insinuated that his silence

was probative of guilt. "[I]ndirect

commentary on a defendant’s failure to

take the stand can . . . constitute a

violation of the defendant’s Fifth

Amendment privilege not to testify."

United States v. Aldaco, 201 F.3d 979,

987 (7th Cir. 2000). Moreover:

a prosecutor’s comment that the

government’s evidence on an issue is

uncontradicted, undenied, unrebutted,

undisputed, etc., will be a violation of

the defendant’s Fifth Amendment rights

if: 1) the only person who could have

contradicted, denied, rebutted, or

disputed the evidence was the defendant;

2) the prosecutor manifestly intended to

refer to a defendant’s silence; or 3) a

jury would naturally and necessarily take

the remark for a comment on the

defendant’s silence.

Id. (internal quotations omitted). The

defendant did not object at trial to any

of the comments he now criticizes, thus

we review the prosecutor’s comments for

plain error. See United States v.

Laurenzana, 113 F.3d 689, 695 (7th Cir.

1997) (citing United States v. Olano, 507

U.S. 725, 732, 113 S. Ct. 1770, 123 L.

Ed. 2d 508 (1993)).

During closing argument, the prosecutor

asked the jury, "Why would [Alanis and

the co-conspirators] stop calling each

other if there wasn’t a conspiracy like

this?" He asked if the defense had talked

to the jury about the numerous trips to

Texas and then stated that the defense

case was "long on rhetoric, short on

content." He also asked whether the jury

had heard any explanation from the

defense about the bill of lading that

agents found in the semi-tractor on

November 4, 1999, which indicated that

cargo had been picked up at "Alro Steel"

in South Bend.

In sum, the prosecutor’s comments were

directed towards reinforcing that the

government’s case was undisputed in

material respects. The prosecution may

"ask[ ] the jury to assess the value of

the existing evidence in light of the

countermeasures that were (or were not)

taken." United States v. Sblendorio, 830

F.2d 1382, 1391 (7th Cir. 1987). While

the prosecutor’s comments would have been

improper if Alanis was the only person

who could have contradicted, denied,

rebutted, or disputed the evidence, see

Aldaco, 201 F.3d at 987, such was not the

case here. The defense could have

produced evidence to explain why the

phone calls ceased without Alanis having

to testify; for example, phone company

records showing that his phone was

disconnected or a friend’s testimony that

Alanis, Selke, and Moore had a falling-

out. Similarly, with the trips to Texas

the defense could have presented proof

that Alanis was attending a conference

for work or visiting relatives with his

family. As for the bill of lading, a

witness from the steel company named on

the bill could have testified that the

bill was genuine. Further, none of these

comments were "manifestly intended to

refer to a defendant’s silence" and would

not have been likely taken "for a comment

on the defendant’s silence." Id. Plain

error review requires us to determine

whether the prosecutor’s remarks

"deprived the defendant of a fair trial"

and whether the failure to correct any

error would result in "a miscarriage of

justice." Laurenzana, 113 F.3d at 695. We

do not believe that the prosecutor’s com

ments were plainly erroneous and find

that they did not improperly burden

Alanis’s Fifth Amendment privilege not to

testify.

E. Apprendi Claims

Alanis alleges that both the grand jury

indictment and the instructions given to

his petit jury were defective in light of

the rule announced in Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348,

147 L. Ed. 2d 435 (2000), and that his

resulting sentence was without proper

foundation. He did not present these

challenges to the district court;

therefore, we review the indictment to

determine whether "it is so defective

that it does not, by any reasonable

construction, charge an offense for which

the defendant is convicted," United

States v. Irorere, 228 F.3d 816, 830 (7th

Cir. 2000) (internal quotation omitted),

and we review the jury instructions for

plain error, see United States v. Jones,

245 F.3d 645, 648 (7th Cir. 2001).

We have recently addressed the law

applicable to Alanis’s situation:

In Apprendi, the Supreme Court held that

"any fact other than the fact of a prior

conviction that increases the penalty for

an offense beyond the statutory maximum

penalty for that offense is an element of

the crime and so must be submitted to the

jury and proved beyond a reasonable

doubt." United States v. Jackson, 236

F.3d 886, 887 (7th Cir. 2001) (citing

Apprendi, 120 S. Ct. at 2362-63). In

cases involving drugs and alleged

violations of 21 U.S.C. sec.sec. 841 and

846, like the one now before us, we have

held that "before a defendant can be

sentenced to a term of imprisonment above

the default statutory maximum provided in

sec. 841(b)(1)(C) or (D), Apprendi

requires that a drug type and amount

sufficient to trigger the higher

statutory maximums of sec. 841(b)(1)(A)

or (B) be charged in the indictment and

found by the jury." United States v.

Mietus, 237 F.3d 866, 874 (7th Cir.

2001). When a drug amount is not charged

in an indictment or included in

instructions submitted to a jury, the

statutory maximum under sec. 841(b) is to

be determined without making any

reference to drug amount. See United

States v. Westmoreland, 240 F.3d 618, 632

(7th Cir. 2001).

Jones, 245 F.3d at 648. With this legal

framework in mind, we review the various

counts of which Alanis was convicted.

1. The Conspiracy Count: Count I

Count I of the indictment charged Alanis

with conspiring "to distribute and to

possess with the intent to distribute . .

. cocaine . . . in an amount in excess of

five (5) kilograms" in violation of 21

U.S.C. sec.sec. 841(a)(1)/2 and 846./3

The drug amount was thus charged in the

indictment as required by Apprendi. The

jury instructions did not, however, make

any reference to the amount of cocaine

involved in the conspiracy. Rather, the

instructions stated that the jury had to

find "that the conspiracy as charged in

Count I" was proved beyond a reasonable

doubt. Whether drug quantity is

"submitted to a jury" when the jury

instructions do not mention drug quantity

but instead incorporate an indictment in

which drug quantity was charged is an

issue our court has yet to consider. Even

if we might find this type of reference

enough to satisfy Apprendi in certain

instances, however, we are not confident

that the jury even read the indictment,

much less found beyond a reasonable doubt

that Alanis possessed the drug quantity

charged here. First of all, the

indictment was not read to the jury; the

jurors were simply given a copy along

with the trial exhibits and jury

instructions. Further, the jury

instructions replicated the description

of the charge, thus precluding any need

to read the indictment in order to find

out what had been charged in Count I:

Count I of the indictment charges Mr.

Alanis with conspiracy to distribute, and

possess with intent to distribute, a

controlled substance. The indictment

alleges that, in or around June 1999 and

continuing to and including November 4,

1999, Mr. Alanis and others conspired to

knowingly and intentionally distribute,

and possess with intent to distribute,

cocaine.

Neither was the quantity included on the

jury verdict. It is possible, then, that

the jury found Alanis guilty of

conspiring to distribute and possess

cocaine without ever determining the

quantity involved in the conspiracy.

The judge sentenced Alanis to 468 months

on Count I in accord with 21 U.S.C. sec.

841(b)(1)(A)--this is above the default

statutory maximum of twenty years

provided in 21 U.S.C. sec. 841(b)(1)(C)

and is also above the thirty-year maximum

for a defendant previously convicted of a

felony drug offense. See 21 U.S.C. sec.

841;/4 see also Jones, 245 F.3d. at

650-51. Because Alanis was "sentenced to

a term of imprisonment above the default

statutory maximum" without a jury

determination of the amount of drugs

involved, he was sentenced in violation

of the rule set forth in Apprendi. See

Jones, 245 F.3d at 648 (internal

quotation and citation omitted).

Our review is for plain error review. In

order to prevail, Alanis must show not

only that there was plain error, but also

that the error "affected [his]

substantial rights" and "seriously

affected the fairness, integrity, or

public reputation of the judicial

proceedings." United States v. Nance, 236

F.3d 820, 824 (7th Cir. 2000), petition

for cert. filed, No. 00-9633 (Apr. 24,

2001). When there was "overwhelming"

evidence that the defendant’s offense

involved an amount sufficient to trigger

the higher statutory maximums, "he is not

entitled to be re-sentenced on the basis

of Apprendi." Jackson, 236 F.3d at 888

(quotation omitted). Here, there was

overwhelming evidence that more than five

kilograms were involved in the

conspiracy. Even if the only load

considered was the load seized by agents

on November 4, 1999, that load contained

422 kilograms of cocaine. We have found

that an Apprendi error does not seriously

affect the fairness, integrity, or public

reputation of the judicial proceedings

where the record provides overwhelming

support for the conclusion that more than

five kilograms were involved, see Nance,

236 F.3d at 826, and this situation

clearly falls into that category, see id.

("If it is clear beyond a reasonable

doubt that a properly worded indictment

and a properly instructed jury would have

found [the defendant] guilty absent this

error, then we cannot say that the error

was so serious that it requires us to set

aside the judgment."); see also Jackson,

236 F.3d at 888 ("No reasonable jury

could have failed to convict Jackson of

being involved in the sale of hundreds,

if not thousands, of grams of crack. The

failure to ask the jury to determine

whether the amount was at least 5 grams

was harmless far beyond a reasonable

doubt."). We thus find that Alanis is not

entitled to be re-sentenced on Count I.

2. The Cocaine Counts: Counts IV and V

Counts IV and V both charged that Alanis

"possess[ed] with intent to distribute

cocaine . . . in excess of five (5)

kilograms," and the latter count noted

that the amount was "approximately 422

kilograms."/5 Although both counts of

the indictment charged a specific amount

of drugs, the jury instructions did not

do so. And as with Count I, Alanis’s

sentence was above the default statutory

maximum--468 months on each of Counts IV

and V. We thus reach the same conclusion

as we did with respect to Count I--

Apprendi was violated because the drug

quantity charged in Counts IV and V was

not submitted to the jury and proved

beyond a reasonable doubt.

We again find, however, that this error

does not require that Alanis be re-

sentenced. Count V, which pertained to

the November 4 seizure, clearly involved

more than 5 kilograms. With respect to

Count IV, the witnesses testified that

there was at least 150 kilograms and as

much as 300 kilograms of cocaine (the

district court discounted this testimony

and determined that Alanis was

responsible for 135 kilograms). The

defense never asserted that the witnesses

were exaggerating the amounts and it made

no attempt to show that Alanis possessed

a quantity less than five kilograms.

Instead, the defense strategy at trial

was to argue that Alanis was innocent of

all charges. The jury obviously

disagreed. Based upon this record, there

is no doubt that a properly instructed

jury would have found Alanis guilty of

possessing more than five kilograms of

cocaine on both occasions charged in

Counts IV and V. See Nance, 236 F.3d at

826.

3. The Marijuana Count: Count II

With respect to the marijuana count,

Count II, the indictment did not charge a

specific amount of marijuana, it simply

alleged that Alanis "possess[ed] with

intent to distribute marijuana." This is

clearly a violation of Apprendi. See

Jones, 245 F.3d at 648. Yet, even if we

remanded for re-sentencing, obtaining a

reduced sentence on Count II would not

reduce Alanis’s time in prison. The judge

sentenced Alanis to 468 months on each of

Counts I, IV, and V and a term of 240

months on Count II, all to be served

concurrently. Because the sentence for

Count II runs concurrently to the

sentence for Counts I, IV, and V--which

we have already determined to be proper--

the error had no effect on Alanis’s

sentence and thus did not prejudice him.

See Nance, 236 F.3d at 824.

Nor did the marijuana count have any

effect on the court’s determination of

his offense level under the United States

Sentencing Guidelines./6 The court

grouped all of Alanis’s drug counts

together for sentencing, used the drug

equivalency table to convert the relevant

amount of cocaine to marijuana (the table

equates 1 gram of powder cocaine to 200

grams of marijuana), and then added the

amount of marijuana charged in Count

II,/7 yielding a grand total of

660,481.648 kilograms of marijuana. Under

the relevant sentencing guideline, an

offense that involves more than 30,000

kilograms of marijuana is assigned an

offense level of 38. Thus, even if the

81.648 kilograms of marijuana were

removed from the total drug amount,

Alanis would not have fallen into a lower

offense level. Alanis’s substantial

rights were clearly not affected by the

district court’s error.

F. Insufficiency of the Evidence Claims

Alanis’s final assertion is that the

evidence presented at trial was not

sufficient to sustain the verdict beyond

a reasonable doubt. He raised this

challenge before the district court by

orally moving for a new trial (which the

judge construed as a Rule 33 motion for

new trial, as provided in the Federal

Rules of Criminal Procedure) but the

judge denied the motion. See United

States v. Alanis, No. 3:00CR0008RM, slip

op. (N.D. Ill. April 6, 2000)./8 We

limit our discussion of this issue to

that which is challenged in Alanis’s

brief: his conviction on Counts VI and

VII for being a felon in possession of

firearms that traveled in interstate

commerce, in violation of 18 U.S.C. sec.

922(g)./9 The jury found Alanis guilty

of possession of a Smith and Wesson 9mm

pistol and a Marlin .22 caliber rifle on

or about January 27, 2000. He argues that

the government did not prove that he was

in possession or control of either

weapon, pointing out that the pistol

belonged to his wife and that the rifle

was found inoperable in the basement, and

had been left there by the previous owner

of the house. Alanis does not challenge

that he lived in the house where the guns

were found but rather claims that he was

unaware that the guns were present in the

house, and thus he could not be guilty of

knowing possession./10

"When considering a motion for a new

trial based on the sufficiency of the

evidence, we grant such a request only if

the verdict is against the manifest

weight of the evidence. . . . A district

court’s denial of a motion for a new

trial will be reversed only upon a

showing that the court abused its

discretion." Tullis v. Townley Eng’g &

Mfg. Co., 243 F.3d 1058, 1062 (7th Cir.

2001) (citations omitted). We consider

the evidence in the light most favorable

to the government, drawing all reasonable

inferences in its favor. See Alverio v.

Sam’s Warehouse Club, Inc., 253 F.3d 933,

939 (7th Cir. 2001); see also United

States v. Kosth, 257 F.3d 712, 718 (7th

Cir. 2001).

Under 18 U.S.C. sec. 922(g)(1), the

government had to "establish beyond a

reasonable doubt that (1) [Alanis] had a

previous felony conviction, (2) [he]

possessed a firearm, and (3) the firearm

had traveled in or affected interstate

commerce." United States v. Walls, 225

F.3d 858, 864 (7th Cir. 2000). Alanis

only challenges the second element,

asserting that he did not possess a

firearm within the meaning of the

statute. It is well established that

possession may be either actual or

constructive. See United States v.

Kitchen, 57 F.3d 516, 520 (7th Cir.

1995). The government does not contend

that Alanis had actual possession,

seemingly because there was no evidence

that Alanis "ever had physical control

over the gun." Walls, 225 F.3d at 866. In

the absence of "direct physical contact .

. . , a defendant may nevertheless have

constructive possession if she knowingly

has the power and the intention at a

given time to exercise dominion and

control over an object, either directly

or through others." Id. (internal

quotation and citations omitted). We have

repeatedly held that "constructive

possession may be established by a

showing that the firearm was seized at

the defendant’s residence." Id. at 867

(citing Kitchen, 57 F.3d at 521); see

also United States v. Hopson, 184 F.3d

634, 636 (7th Cir. 1999) (noting that the

police found the guns among the

defendant’s things in the defendant’s

home), cert. denied, 528 U.S. 1093, 120

S. Ct. 828, 145 L. Ed. 2d 696 (2000);

United States v. Taylor, 154 F.3d 675,

682 (7th Cir. 1998) (finding constructive

possession where there was substantial

evidence that the defendant lived at the

residence where the weapons were seized,

that he was the only man at the

residence, and that "[t]he weapons were

found in a padlocked closet near [his]

bed . . . [that contained] only men’s

clothing[,] cologne, [and] a receipt with

his name on it"). When a gun is found in

a defendant’s bedroom, as here, it would

not be improper for the jury to "infer

that [the defendant] had both knowledge

of the firearm and an intent to exercise

dominion and control over it merely from

its presence in the bedroom that [he] . .

. shared with [his wife]." Walls, 225

F.3d at 867.

Alanis asserts that the pistol was his

wife’s and that it was found in her

bedroom. However, it is not material that

Alanis’s wife might have owned the pistol

because "[c]onstructive possession may be

either sole or joint." Kitchen, 57 F.3d

at 521. Thus, her ownership does not

preclude Alanis’s possession. Further,

the government presented sufficient

evidence to support a finding that the

bedroom was shared by Alanis and his

wife, and that the gun was found in a

nightstand next to his bed, with his

eyeglasses, clothing, and wallet nearby.

Alanis also asserts that, because the

rifle was inoperable and found in the

basement, the government failed to

demonstrate possession. We have

previously rejected the contention that

the government must "prove that the gun

was operable," United States v. Buggs,

904 F.2d 1070, 1075 (7th Cir. 1990),

because it is sufficient to show that

"the gun was designed to fire," id.

(quotation and citation omitted). There

is no disputing that the item seized was

indeed a rifle that was designed to fire.

In sum, we cannot find that the evidence

was so insufficient as to justify

overruling the district court’s decision

not to grant a new trial.

III. Conclusion

For the foregoing reasons, we AFFIRM the

conviction and sentence of Antonio

Alanis.

FOOTNOTES

/1 Because the district court noted that "persons in

the drug trade . . . often tend . . . to over-

estimate the quantities they actually handled,"

the court "discount[ed] the eyewitnesses’ recol-

lection of drug quantities by ten percent."

United States v. Alanis, No. 3:00CR0008RM, slip

op. at 2-3 (N.D. Ill. Aug. 4, 2000) (sentencing

memorandum). For the purposes of this opinion, we

use the drug amounts as determined by the dis-

trict court at sentencing rather than those

asserted by the government.

/2 Section 841(a) states that "it shall be unlawful

for any person knowingly or intentionally--1) to

manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dis-

pense, a controlled substance." 21 U.S.C. sec.

841(a).

/3 Section 846 states: "Any person who attempts or

conspires to commit any offense defined in this

subchapter shall be subject to the same penalties

as those prescribed for the offense, the commis-

sion of which was the object of the attempt or

conspiracy." 21 U.S.C. sec. 846.

/4 21 U.S.C. sec. 841 provides:

(b) . . . [A]ny person who violates subsection

(a) of this section shall be sentenced as fol-

lows:

(1)(A) In the case of a violation of subsection

(a) of this section involving-- . . .

(ii) 5 kilograms or more of a mixture or sub-

stance containing a detectable amount of-- . . .

(II) cocaine, its salts, optical and geometric

isomers, and salts of isomers; . . .

such person shall be sentenced to a term of

imprisonment which may not be less than 10 years

or more than life . . . .

(C) In the case of a controlled substance in

schedule I or II [which includes cocaine], such

person shall be sentenced to a term of imprison-

ment of not more than 20 years . . . . If any

person commits such a violation after a prior

conviction for a felony drug offense has become

final, such person shall be sentenced to a term

of imprisonment of not more than 30 years . . .

.

/5 Count IV charged that, in or around July 1999,

Alanis "possess[ed] with intent to distribute

cocaine . . . in excess of five (5) kilograms."

Count V charged that on November 4, 1999 he

"possess[ed] with intent to distribute cocaine .

. . in excess of five (5) kilograms (approximate-

ly 422 kilograms)."

/6 At sentencing, the judge calculated Alanis’s

offense level at 38 (due to his prior felony

conviction); increased his offense level by two

levels pursuant to section 3B1.1 of the United

States Sentencing Guidelines, based on Alanis’s

role in organizing the offense; and determined

that he fell into criminal history category III.

/7 The relevant quantity of marijuana was estimated

based upon the witness testimony at trial. Moore

and Selke had testified that the marijuana pos-

sessed by Alanis filled the bed of a pickup truck

two-thirds of the way. Moore estimated that there

were at least 90 packages in the truck bed and

that each package weighed acouple of pounds

(Selke thought there were over 100 packages). The

judge thus determined that there were 90 packages

of two pounds, resulting in 180 pounds of mari-

juana (an amount equal to 81.648 kilograms).

/8 Alanis’s brief argues that he should have been

granted a new trial, and states that his oral

motion for a new trial was accepted as a Rule 33

motion. Indeed, the trial transcript reveals

that, once counsel began to argue that the evi-

dence was insufficient, the court asked whether

counsel wanted "to file a motion under Rule 33

for a new trial." Tr. of Trial Proceedings at V-

186. The judge’s memorandum and order did not

treat the motion as a Rule 33 motion, however; it

referred to it as an oral motion for judgment of

acquittal pursuant to Rule 29(c). See Alanis,

slip op. at 1. Because neither Alanis nor the

government mentioned this issue on appeal, we

address Alanis’s claim as presented in his appel-

late brief (and we acknowledge that the standard

for granting a new trial under Rule 33 is less

strenuous than the standard for granting a motion

for judgment of acquittal under Rule 29(c)).

/9 18 U.S.C. sec. 922(g) states, in relevant part:

It shall be unlawful for any person--(1) who has

been convicted in any court of, a crime punish-

able by imprisonment for a term exceeding one

year; . . . to ship or transport ininterstate or

foreign commerce, or possess in or affecting

commerce, any firearm or ammunition; or to re-

ceive any firearm or ammunition which has been

shipped or transported in interstate or foreign

commerce.

/10 It is not clear whether the government attempted

to demonstrate that the pistol and rifle were

acquired separately and at different times or

places. If they did not make such a showing, the

indictment under which Alanis was charged would

be duplicitous under our recent holding in United

States v. Buchmeier, 255 F.3d 415, 422 (7th Cir.

2001) (holding that, without such a showing, "the

government may only charge [the] defendant with

one violation of sec. 922(g)(1) . . . , regard-

less of the actual quantity offirearms in-

volved"). The defense did not challenge the

indictment on this ground, yet even if it had,

because the 120-month sentence Alanis received on

the weapons counts is to be served concurrently

with the 468 months on each of Counts I, IV, and

V, any error was harmless. See id. at 426.