The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3715, 01-3716, 01-3717, 01-3718,
01-4007, 01-4008, 01-4021 & 01-4095
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,
v.
ALFREDO CEBALLOS and ALAN MARTINEZ-GUZMAN,
Defendants-Appellants
Cross-Appellees,
and
MIGUEL A. QUINTANILLA, LEONEL MORENO, JR.,
DENEISE A. QUINTANILLA, and ABELARDO LALO-MENDOZA,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 00-CR-25—Richard L. Young, Judge.
____________
ARGUED JUNE 3, 2002—DECIDED AUGUST 27, 2002
____________
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge. This is a consolidated appeal of
the convictions and sentences of six co-defendants who were
2 Nos. 01-3715, et al.
tried by a jury and found guilty of drug conspiracy and
money laundering pursuant to 21 U.S.C. §§ 841(a)(1) and
846 and 18 U.S.C. §§ 1956(a)(1)(A)(i) and (h). The govern-
ment also cross-appeals the sentences of two of the defen-
dants, Alfredo Ceballos and Alan Martinez-Guzman. We af-
firm all of the defendants’ convictions and sentences, except
for Ceballos’s and Martinez-Guzman’s sentences, which we
vacate and remand for re-sentencing.
I. History
In November 1999, DEA agents in southern Indiana be-
gan using an informant to make controlled sales of metham-
phetamine to an individual nicknamed “Cuate.” The DEA
monitored several purchases made by Cuate and eventually
initiated surveillance on narcotics transactions perpetrated
by other individuals, including defendants Martinez-Guz-
man and Lalo-Mendoza. As the monitored drug transactions
in southern Indiana continued, DEA agents began utilizing
wiretaps to record conversations between the informant and
Cuate. Surveillance of these wiretaps led to an expanded
investigation, implicating several more people.
On March 31, 2000, DEA agents in Evansville, Indiana
received court authorization to intercept communications
over two telephones and one pager belonging to Juan Man-
uel Mata and Lisa Caudill (the “Indiana wiretaps”). Based
on numerous drug-related conversations intercepted by the
Indiana wiretaps, the DEA seized one pound of metham-
phetamine. Subsequently, DEA agents in Dallas, Texas re-
ceived court authorization to intercept communications over
two telephones identified during surveillance of the Indiana
wiretaps (the “Texas wiretaps”). The target telephone
numbers of the Texas wiretaps belonged to defendants
Miguel and Deneise Quintanilla, and during surveillance of
these wiretaps, DEA agents intercepted many more drug-
Nos. 01-3715, et al. 3
related conversations. Based upon evidence of drug-related
conversations obtained from the Indiana and Texas wire-
taps, the seizure of the methamphetamine, and the testi-
mony of several cooperating witnesses, the government in-
dicted sixteen people on drug conspiracy and money laun-
dering charges. The six defendants proceeded to trial and
were convicted as charged in the indictment. The district
court then sentenced the defendants as follows:
Defendant Charge Sentence
Alfredo Ceballos Drug Conspiracy 360 months
Money Laundering 240 months,
concurrent
Alan Martinez-Guzman Drug Conspiracy 268 months
Miguel Angel Quintanilla Drug Conspiracy Life
Money Laundering 240 months,
concurrent
Leonel Moreno, Jr. Drug Conspiracy 360 months
Money Laundering 240 months,
concurrent
Deneise Ann Quintanilla Drug Conspiracy Life
Abelardo Lalo-Mendoza Drug Conspiracy 204 months
II. Analysis
A. Joint Claims
1. Motion to Suppress
The defendants’ first argument on appeal is that the dis-
trict court erred in denying their motion to suppress evi-
dence obtained from surveillance of the Indiana and Texas
wiretaps. We will reverse a district court’s decision to admit
evidence obtained from wiretaps only if that decision was
an abuse of discretion. See United States v. Adams, 125
F.3d 586, 595 (7th Cir. 1997).
4 Nos. 01-3715, et al.
The defendants first argue that the district court erred in
denying their motion to suppress because, according to the
defendants, the government failed to establish the necessity
for wire surveillance. Federal law requires each wiretap
application to contain a full and complete statement as to
one of the following: (1) whether or not other investigative
procedures have been tried and failed, (2) why other investi-
gative procedures reasonably appear to be unlikely to suc-
ceed if tried, or (3) that other investigative procedures are
too dangerous. See 18 U.S.C. § 2518(1)(c). We have previ-
ously held that “the government’s burden of establishing its
compliance with subsection 2518(1)(c) is not great” and
should “be reviewed in a practical and commonsense fash-
ion.” United States v. Zambrana, 841 F.2d 1320, 1329 (7th
Cir. 1988). In Zambrana, we held that the government
established the necessity for wire surveillance where its
wiretap application averred that normal investigative pro-
cedures would not succeed in identifying all co-conspirators
at all levels of the drug conspiracy. See id. at 1330-32. In so
doing, we noted that the government had offered a valid
factual basis for this assertion: informants and undercover
agents could not infiltrate the drug conspiracy to the extent
necessary for a successful prosecution. See id. at 1331-32. In
Adams, we held that the government had established the
requisite necessity where its wiretap application stated,
among other things, that physical surveillance might alert
the subject to the investigation. See 125 F.3d at 595-96.
In this case, the government’s application for the Indiana
wiretaps stated that it had tried ordinary investigative pro-
cedures such as the use of informants and undercover
agents, the use of telephone records and pen registers, and
the use of physical surveillance, but that those procedures
had been insufficient to obtain the evidence necessary to
establish the full extent of the drug conspiracy and would
continue to be insufficient in the future. In addition, DEA
Special Agent Daniel Schmidt’s affidavit provided factual
Nos. 01-3715, et al. 5
bases for this assertion. For example, it stated that inform-
ants and undercover agents had been and would continue
to be unable to establish contact with middle to upper-level
members of the conspiracy and thus their use could not
“furnish information which would fully identify all members
of this ongoing criminal conspiracy or which would define
the roles of these conspirators sufficiently for prosecution.”
Specifically, these confidential and undercover sources
could not establish how the narcotics were being shipped to
Indiana. In addition, the application stated that the use of
telephone records and pen registers could not identify the
participants in the telephone conversations or the nature or
substance of those conversations. Moreover, the application
stated that in Special Agent Schmidt’s experience, physical
surveillance would likely alert the subjects to the investi-
gation. The application for the Texas wiretaps included all
of the above information and was supported by an affidavit
from DEA Special Agent C. Mark Styron. In addition, the
Texas application stated that additional wiretaps were
needed in Texas to identify some of the people discussed
during conversations intercepted by the Indiana wiretaps,
including people that may have supplied Miguel Quintanilla
with narcotics in Texas.
As the above facts illustrate, the Indiana and Texas appli-
cations provided the requisite “full and complete statement
as to whether or not other investigative procedures have
been tried and failed or why they reasonably appear to be
unlikely to succeed if tried . . . .” 18 U.S.C. § 2518(1)(c).
Specifically, the applications outlined numerous factual
bases for the government’s claim that the wiretaps were
necessary to establish the full extent of the drug conspiracy.
For example, as in Zambrana, the applications explained
that informants and undercover agents had been and would
continue to be unable to infiltrate the conspiracy. Fur-
ther, the applications explained that telephone records and
pen registers could not identify each subject’s role in the
6 Nos. 01-3715, et al.
conspiracy because they could not reveal the participants
in nor the substance of the conversations. Finally, as in
Adams, the applications explained that physical surveil-
lance would likely alert the subjects to the investigation.
Therefore, we hold that the district court did not abuse its
discretion in admitting evidence obtained from the wire-
taps.
The defendants next contend that the applications for the
Indiana and Texas wiretaps contained bad-faith misrepre-
sentations and therefore the district court erred in denying
their motion to suppress. Each application to obtain a
wiretap must inform the issuing court of all previous appli-
cations for interception of wire, oral, or electronic communi-
cations involving any of the same persons specified in the
pending application. See 18 U.S.C. § 2518(1)(e). However, a
violation of the wiretap statute is not grounds for suppres-
sion unless the defendant can establish bad faith or preju-
dice. See United States v. Matthews, 213 F.3d 966, 969-70
(7th Cir. 2000). In United States v. Zannino, 895 F.2d 1, 8-9
(1st Cir. 1990), the defendant argued that his motion to
suppress should have been granted because the govern-
ment’s application failed to disclose that the defendant had
been the target of five previous wiretap applications. The
agents making the application testified at the suppression
hearing that they had conducted a thorough search of FBI
files to determine whether the defendant had been the
target of previous wiretap applications but that the search
had come up empty. See id. The district court credited this
testimony, and the First Circuit held that this determina-
tion was not clear error. See id. at 9 (“[A]n investigator
cannot be expected to disclose something that he or she
does not know.”). Therefore, because there was no bad faith,
the omission of the prior applications did not warrant sup-
pression, even if the agents were negligent in their search.
See id.; see also United States v. Lujan, 936 F.2d 406, 409
(9th Cir. 1991); United States v. Pinelli, 890 F.2d 1461, 1475
(10th Cir. 1989).
Nos. 01-3715, et al. 7
In the present case, the Indiana and Texas applications
failed to disclose that Miguel and Deneise Quintanilla had
been the targets of previous wiretap applications in Texas.
However, the government agents applying for the wiretaps
testified at the suppression hearing that they made three
separate searches of the DEA and FBI databases and that
each search failed to disclose the prior applications. In addi-
tion, Agent Styron testified that subsequent to the Texas
application, he performed another search of the DEA and
FBI databases and discovered that the prior applications
concerning Miguel and Deneise Quintanilla had been under
the names “Miquel Quintanilla” and “Deneise Scrimshire”
(her maiden name). Upon learning this information, the
government filed a motion with the authorizing court in
Texas to amend its application for the Texas wiretap, which
the court granted. The defendants offered nothing to con-
tradict this evidence showing that the omission was inad-
vertent other than their conjecture that the agents must
have known about the prior applications, and conjecture is
insufficient to warrant relief. See United States v. West-
moreland, 240 F.3d 618, 637 (7th Cir. 2001). After hearing
all of this evidence, the district court found that the govern-
ment did not act in bad faith and therefore denied the
defendants’ motion to suppress. As in Zannino, the agents
testified that they had performed searches to determine
whether there had been prior applications and that these
searches had come up empty. Therefore, we find that the
district court did not err in denying the motion to suppress.
Finally, the defendants argue that the government did
not obtain the proper approval for authorization of the
Texas wiretap. Federal law provides that “any Deputy As-
sistant Attorney General . . . specifically designated by the
Attorney General may authorize an application to a Federal
judge of competent jurisdiction for . . . an order authorizing
or approving the interception of wire or oral communica-
tions . . . .” 18 U.S.C. § 2516(1). Further, in Order 1950-95,
8 Nos. 01-3715, et al.
dated February 13, 1995, then Attorney General Janet Reno
“specifically designate[d] . . . any acting Deputy Assistant
Attorney General . . . to exercise the power conferred by
section 2516(1) . . . .” The Texas application contained
authorization from Mary Lee Warren, Deputy Assistant
Attorney General. The defendants apparently concede that
Mary Lee Warren signed the authorization, but argue that
“[t]he record is silent regarding who she is and what au-
thority she might possess.” The defendants’ assertions are
incorrect. The grant of authority clearly identifies Mary Lee
Warren as a Deputy Assistant Attorney General and there-
fore she had authority pursuant to § 2516(a) and Order
1950-95 to authorize the Texas wiretaps.
2. Expert Testimony
The defendants next contend that the district court im-
properly admitted the expert testimony of Agents Michael
Kress and Styron. Before trial, the government filed an
“Amended Notice Regarding Expert Witnesses,” detailing
the agents’ knowledge and experience that qualified them
as experts on drug code language. In addition, the Notice
outlined the drug code language used during approximately
forty intercepted phone conversations about which the
agents would testify. In response, the defendants filed a mo-
tion in limine, objecting that some of the pronouns outlined
in the government’s Notice did not constitute drug code
language. Further, the defendants objected to the qualifica-
tion of Agents Kress and Styron as expert witnesses.
The district court denied the defendants’ motion, and at
trial, over twenty recordings of intercepted phone conversa-
tions were played before the jury and admitted into evi-
Nos. 01-3715, et al. 9
dence.1 After each recording was played, either Agent Kress
or Agent Styron testified as an expert witness about the
content of the conversations, including interpreting code
language used to facilitate the drug conspiracy. For exam-
ple, the agents testified that some of the defendants’ words
such as “tickets” and “cars” were code words for narcotics.
Further, the agents testified that words such as “one” and
“two” referred to certain quantities of methamphetamine.
Finally, the agents testified that in several of the inter-
cepted phone conversations, the defendants used simple
pronouns as code language. For instance, during one phone
call, Ceballos told Miguel Quintanilla that “it had come up
short,” and Agent Kress testified that “it” referred to a ship-
ment of narcotics that Ceballos had received.
The defendants’ first argument on appeal with respect to
this testimony is that the district court erred in qualifying
Agents Kress and Styron as experts. Federal Rule of
Evidence 702 permits the admission of expert testimony
when the specialized knowledge of the witness will aid the
trier of fact in understanding the evidence or determining
a fact in issue. See United States v. Hubbard, 61 F.3d 1261,
1274-75 (7th Cir. 1995). Under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993) and its progeny, the district court
must act as a “gatekeeper” and determine whether the prof-
fered expert testimony is reliable and relevant before
qualifying the witness as an expert. When a challenge is
made to the acceptance or rejection of expert testimony on
appeal, we review whether the district court found that the
testimony was reliable and relevant de novo. See United
States v. Allen, 269 F.3d 842, 845 (7th Cir. 2001). If we find
that the testimony was reliable and relevant, we review the
1
Most of the conversations were in Spanish, but the jury was pro-
vided with transcripts of English translations.
10 Nos. 01-3715, et al.
district court’s decision to admit or exclude the testimony
for an abuse of discretion. See id.
In Allen, the district court qualified a DEA agent as an
expert in drug trafficking primarily because the agent had
received education and training in the field of narcotics
trafficking. See 269 F.3d at 846. Specifically, the agent had
worked for the DEA for thirteen years and had investigated
hundreds of narcotics cases. See id. We then held that the
district court properly qualified the agent as an expert,
noting that the advisory committee notes to Rule 702 state
that experience in the field can be the predominant, if not
the sole, basis for expert testimony in some cases. See Allen,
269 F.3d at 846.
In this case, Agent Kress had worked for the DEA for
approximately ten years and had investigated numerous
drug-trafficking cases involving organizations from six
Latin American countries. In addition, during these drug
investigations, he reviewed in excess of 50,000 intercepted
telephone conversations involving drug traffickers and in-
terpreted the drug code language therein. Agent Styron had
worked for the DEA for approximately thirteen years, had
participated in over fifty investigations, and had testified as
an expert witness on drug code language in several drug-
trafficking cases. Thus, like in Allen, the district court
properly qualified the agents as experts and did not abuse
its discretion in admitting their testimony.
The defendants argue that Agents Kress and Styron did
not qualify as experts because the agents based their
testimony on English translations of Spanish conversations
and neither spoke fluent Spanish. We can find no legal
authority for the proposition that the agents’ lack of fluency
in the Spanish language should prohibit them from inter-
preting drug code language obtained from English transla-
tions of Spanish conversations. Instead, this court and other
circuits have previously permitted agents to rely upon Eng-
Nos. 01-3715, et al. 11
lish translations to interpret drug code language, see, e.g.,
United States v. Hughes, 970 F.2d 227, 236 (7th Cir. 1992);
United States v. Nersesian, 824 F.2d 1294, 1307 (2d Cir.
1987), and we see no reason to forbid this practice in the
present case.
Next, the defendants assert that the district court im-
properly allowed Agent Kress and Agent Styron to testify
regarding the defendants’ use of simple pronouns during
the intercepted phone conversations. We have previously
held that expert testimony concerning narcotics code words
is permissible because this language is not within the
common understanding of most jurors. See United States v.
Rollins, 862 F.2d 1282, 1292 (7th Cir. 1988). The govern-
ment responds, therefore, that the pronouns that the agents
interpreted constituted drug code language because of their
ambiguity and were the proper subjects of expert testimony.
For example, during one intercepted conversation that was
played for the jury, Ceballos called Miguel Quintanilla, and
the following conversation took place:
Ceballos: Oh, man, one more thing . . . that guy owes
me, man.
Quintanilla: How’s that?
Ceballos: Yeah, man. I don’t know how, man, there was
some missing from both.
Quintanilla: But I, I prepared them here, man.
Ceballos: It really bugs me, the same as the one before,
you know, like the other time. I told you it had come up
short, and I didn’t deduct anything from you, man. The
other time there was some missing, man.
Quintanilla: Let’s see if I can replace some of what was
missing . . . but, no man, I checked them . . . and they
don’t have a way of getting into it.
Ceballos: Yeah. No, no and if not . . . nah, what do they
want it for?
12 Nos. 01-3715, et al.
Quintanilla: I’m going to double check it this time,
man.
Ceballos: Yeah, if you give me . . . so I don’t deduct any
more. Add something, man.
Quintanilla: Alright. Anyway, I’ll give you some back
with the other one, man.
Agent Kress testified that in his opinion, Ceballos’ use of
the word “both” in his statement, “there was some missing
from both” meant that Ceballos was expecting a two-pound
shipment of methamphetamine, and that he had received
less than this amount. Agent Kress went on to testify that
the use of “it” and “them” throughout the rest of the con-
versation referred to shipments of methamphetamine that
Quintanilla had prepared and packaged in Texas and had
sent to Ceballos in Indiana. He based this opinion, in part,
on the fact that there were no other nouns to which the
pronouns “it” and “them” referred and therefore the pro-
nouns were ambiguous.
In Rollins, a DEA agent testified about his interpretation
of intercepted phone conversations between two alleged
drug dealers. See id. In several instances, the drug dealers
used the word “it” and other words, which the agent tes-
tified referred to cocaine. See id. We held that the use of the
word “it” constituted drug code language in that case and as
such was the proper subject of expert testimony. See id.
Here, as in Rollins, we hold that the district court did not
abuse its discretion in permitting Agent Kress and Agent
Styron to offer expert testimony on the meaning of pro-
nouns such as “it” and “them” because the pronouns were
used in an ambiguous manner and because of the agents’
vast experience with drug code language. Further, this
testimony was helpful to the jurors because “[a]s a result of
[the agents’ expert] testimony, the jury was able to apply to
the evidence alternative theories of which they ordinarily
would not have been aware.” United States v. Sanchez-
Galvez, 33 F.3d 829, 832 (7th Cir. 1994). Finally, our
Nos. 01-3715, et al. 13
conclusion regarding the admissibility of the agents’ tes-
timony is bolstered by the holding in Nersesian, whereby
the court affirmed the district court’s acceptance of a DEA
agent’s testimony that “the excessive use of pronouns”
signaled a drug-related conversation. See 824 F.2d at 1307-
08.
3. Apprendi
The defendants’ next argument is that their sentences
should be reversed because § 841 unconstitutionally treats
drug quantity as a sentencing factor, rather than as an
element of the offense, in violation of the Fifth and Four-
teenth Amendments as interpreted in Apprendi v. New
Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). We rejected an identical argument in United States
v. Brough, 243 F.3d 1078, 1079-80 (7th Cir.), cert. denied,
___ U.S. ___, 122 S. Ct. 203, 151 L. Ed. 2d 144 (2001) and
held that the sentencing provisions of § 841 were consti-
tutional and we decline the defendants’ invitation to re-
consider our position on that issue.
B. Deneise Quintanilla
1. Admission of Evidence
Deneise’s first argument is that the district court erred in
admitting the transcripts of three intercepted phone con-
versations—Exhibits 154, 194, and 195. The district court
admitted Exhibit 154 as an admission of a party-opponent
under Federal Rule of Evidence 801(d)(2)(A) and admitted
Exhibits 194 and 195, which involved the sale of metham-
phetamine in Texas, as statements in the furtherance of
a conspiracy under Federal Rule of Evidence 802(d)(2)(E).
We review the district court’s admission of this evidence for
an abuse of discretion. See United States v. Senffner, 280
F.3d 755, 762 (7th Cir. 2002).
14 Nos. 01-3715, et al.
Deneise does not quarrel with the district court’s findings
that Exhibits 154, 194, and 195 complied with the require-
ments for admissibility under the rules of evidence. Rather,
she argues that these exhibits concerned a different con-
spiracy than the one charged in the indictment and there-
fore contends that she was prejudiced by their admission
because evidence of one conspiracy cannot be admitted as
evidence of a separate conspiracy. In order to succeed on
this claim, Deneise must show that the evidence presented
at trial was insufficient to support a finding of a single
conspiracy and that she was prejudiced by the exhibits’
admission. See United States v. Jones, 275 F.3d 648, 651
(7th Cir. 2001). To determine whether a single conspiracy
or multiple conspiracies existed, we look at the nature and
purpose of the defendants’ agreement. United States v.
Mezzanti, 888 F.2d 1165, 1174 (7th Cir. 1988). Multiple
conspiracies exist when there are separate agreements to
effectuate distinct purposes. See United States v. Thorton,
197 F.3d 241, 254 (7th Cir. 1999). A single conspiracy ex-
ists, on the other hand, when the evidence, viewed in the
light most favorable to the government, establishes that the
co-conspirators joined to effectuate a common design or
purpose. See Mezzanti, 888 F.2d at 1174; see also Thorton,
197 F.3d at 254 (finding single conspiracy where all of
defendant’s activities with his co-conspirators had “one pur-
pose—the distribution of crack and cocaine”).
In Jones, the indictment charged a single conspiracy, and
much of the government’s evidence at trial concerned the
defendant’s activities with three individuals, whereby the
conspirators would travel to Chicago, purchase crack, and
return to Springfield to distribute the crack there. See 275
F.3d at 650-53. The government also introduced the tes-
timony of Tonya Gephardt, who testified that she traveled
with the defendant to Chicago, purchased crack, and re-
turned to Springfield to sell the crack. See id. at 650. On
appeal, the defendant argued that his initial three co-con-
spirators had been arrested before the activities about
Nos. 01-3715, et al. 15
which Gephardt had testified and therefore there were two
separate conspiracies—one prior to the co-conspirators’
arrest and one after their arrest that involved Gephardt.
See id. at 651-52. The defendant asserted that the indict-
ment only charged the former conspiracy and therefore
Gephardt’s testimony was inadmissible. See id. We noted
that the indictment against the defendant alleged that he
conspired with “others” to distribute crack and held that a
single conspiracy existed because the activity about which
Gephardt testified had the same design and purpose as the
defendant’s activities with his initial three co-conspirators.
See id. at 652-53. Therefore, we held that the district court
did not err in admitting Gephardt’s testimony. See id. at
653.
In the present case, Deneise argues that the indictment
charged a conspiracy to distribute methamphetamine in
southern Indiana and that the disputed exhibits, which
regarded the ultimate distribution of methamphetamine in
Texas, concerned a separate conspiracy and were therefore
inadmissible. However, the indictment shows that the gov-
ernment charged Deneise with a conspiracy to distribute
methamphetamine “in the Southern District of Indiana,
Evansville Division, and elsewhere.” (Emphasis added). To
that end, the evidence at trial, viewed in the light most
favorable to the government, established Deneise’s involve-
ment in the following conspiracy: Miguel obtained metham-
phetamine from an individual named Leonel Moreno and
along with Deneise packaged the methamphetamine and
sold it to people who would either distribute it on the street
level in Texas or would take it to Indiana for further
distribution. The Quintanillas would use couriers in Texas
to take the methamphetamine to Ceballos and others in
Indiana. For example, Terri Nichols testified that on one
occasion, she went to the Quintanillas’s house, saw Deneise
packing methamphetamine in plastic wrap, purchased that
methamphetamine from the Quintanillas, and took it to
Indiana for further distribution. The disputed exhibits, on
16 Nos. 01-3715, et al.
the other hand, concerned the part of the conspiracy where-
by the Quintanillas would distribute methamphetamine in
Texas. Because the activities described in Exhibits 154, 194,
and 195 pertain to Deneise’s involvement in the distribution
of methamphetamine obtained from Moreno, they concern
the same conspiracy that was charged in the indictment
and that was shown by the government’s other evidence at
trial. As in Jones, we hold that there was only a single
conspiracy in this case and that the district court did not
err in admitting Exhibits 154, 194, and 195.2
2. Sentence Enhancement
Deneise next contends that the government’s § 851(a)
information was improperly served and therefore her sen-
tence should not have been enhanced. Section 851(a)(1)
provides:
No person . . . shall be sentenced to increased punish-
ment by reason of one or more prior convictions, unless
before trial, or before entry of a plea of guilty, the
United States attorney files an information with the
court (and serves a copy of such information on the
person or counsel for the person) stating in writing the
previous convictions to be relied upon.
In this case, the government filed its § 851(a) information
on June 11, three days before trial. On June 12, during a
pre-trial conference, the government also told Deneise’s
counsel that it had filed the information and had mailed a
2
The admission of Miguel’s statements in Exhibits 194 and
195 also does not violate the Confrontation Clause of the Sixth
Amendment, which does not apply to statements admitted under
Rule 801(d)(2)(E). See United States v. Stephenson, 53 F.3d 836,
845 (7th Cir. 1995). Further, our finding that a single conspiracy
existed also disposes of Deneise’s argument that the district court
erred in not giving a multiple-conspiracy instruction to the jury.
Nos. 01-3715, et al. 17
copy of the information to his office the previous day. How-
ever, Deneise’s counsel did not receive the § 851(a) informa-
tion until June 16, two days after trial had commenced.
After the jury returned a guilty verdict against Deneise, the
district court sentenced her to life imprisonment pursuant
to § 851. On appeal, Deneise argues that the district court
did not have jurisdiction to impose the enhanced sentence
due to her prior convictions because the government failed
to satisfy the procedural requirements of § 851(a). She
argues that because § 851(a) is jurisdictional, the govern-
ment must have actually delivered, and not just mailed, the
information to her or her counsel before trial.
As an initial matter, some circuits, including ours, have
previously called § 851(a)’s notice requirements “jurisdic-
tional.” See, e.g., United States v. Lawuary, 211 F.3d 372,
376 n.6 (7th Cir. 2001); Harris v. United States, 149 F.3d
1304, 1306 (11th Cir. 1998); United States v. Hill, 142 F.3d
305, 312 (6th Cir. 1998); United States v. Wright, 932 F.2d
868, 882 (10th Cir. 1991). However, this assertion is gen-
erally made in passing and without analysis. For example,
in United States v. Belanger, 970 F.2d 416, 418 (7th Cir.
1992), the first case from our Circuit holding that § 851(a)’s
requirements were jurisdictional, the only comment is that
“[f]ailure to file the notice prior to trial deprives the district
court of jurisdiction to impose an enhanced sentence.”
However, this characterization did not affect the outcome of
the case because in Belanger we held that the government’s
notice satisfied § 851(a)’s procedural requirements. See id.
The next case from our Circuit holding that § 851(a) was
jurisdictional merely cited Belanger for that proposition and
did not examine the issue, see Kelly v. United States, 29
F.3d 1107, 1110 (7th Cir. 1994), and another case did not
cite to any case for the proposition that § 851(a) was jur-
isdictional. See United States v. Jackson, 189 F.3d 655, 661
(7th Cir. 1999), overruled on other grounds by United States
v. Buford, 201 F.3d 937, 942 (7th Cir. 2000). Finally, the
only other Seventh Circuit case on point merely cites
18 Nos. 01-3715, et al.
Jackson. See Lawuary, 211 F.3d at 376 n.6. Moreover, none
of the authority upon which our initial case, Belanger, relies
offers any explanation for why § 851(a)’s requirements
should be jurisdictional. See, e.g., Wright, 932 F.2d at 882;
United States v. Cevallos, 538 F.2d 1122, 1125-26 (5th Cir.
1976).3
On the other hand, all of the courts that have offered
analysis on the issue have held that § 851(a)’s notice re-
quirements are not jurisdictional. See, e.g., United States v.
Mooring, 287 F.3d 725, 727-28 (8th Cir. 2002); Prou v.
United States, 199 F.3d 37, 45-46 (1st Cir. 1999); see also
United States v. Baucum, 80 F.3d 539, 543-44 (D.C. Cir.
1996) (holding that similar provisions under 21 U.S.C.
§ 860(a) were not jurisdictional). In other words, Mooring
and Prou hold that the government’s failure to satisfy the
requirements of § 851(a) deprives the district court of
authority, but not subject-matter jurisdiction, to impose an
enhanced sentence due to prior convictions. See 287 F.3d at
727-28; 199 F.3d at 45. In addition, one of our colleagues
has offered his view that § 851(a) merely sets a “condition
precedent” to the imposition of an enhanced sentence and
that § 851(a) is not jurisdictional. See Lawuary, 211 F.3d at
378-80 (Easterbrook, J., concurring).
We must, of course, address subject-matter jurisdiction in
every case. Given the existing circuit split on the issue and
3
In fact, Cevallos only says:
Assuming that a failure by the Government strictly to comply
with s 851(a)(1)’s requirement of service of the information of
a previous conviction does deprive the District Court of jur-
isdiction to impose an enhanced sentence . . . the uncon-
troverted evidence more than supports the District Judge’s
implied finding that petitioner’s counsel was in fact served
with a copy of the information of previous conviction prior to
the guilty plea proceeding and petitioner was so advised by
his counsel.
Nos. 01-3715, et al. 19
our lack of analysis in previous decisions, we believe it ap-
propriate to reexamine our position that § 851(a) is jur-
isdictional. In doing so, to the extent that there is Seventh
Circuit precedent holding that § 851(a) is jurisdictional, we
note that “drive-by jurisdictional rulings . . . have no prec-
edential effect.” Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 91, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998).
We start by noting that jurisdictional problems general-
ly fall into two broad categories. See Lawuary, 211 F.3d at
378 (Easterbrook, J., concurring). The first concerns the
constitutional or statutory limits placed upon the ad-
judicatory authority of federal district courts. See id. In this
case, the district court clearly had subject-matter juris-
diction over Deneise’s prosecution pursuant to 18 U.S.C.
§ 3231, which confers jurisdiction “of all offenses against
the laws of the United States.” See Prou, 199 F.3d at 45.
Accordingly, “[o]nce subject-matter jurisdiction has properly
attached, courts may exceed their authority or otherwise
err without loss of jurisdiction.” Id.; see also Blackledge
v. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 40 L. Ed. 2d 628
(1974). The present case clearly illustrates this principle:
even if the government’s service of the information did not
satisfy § 851(a), and thus the district court erred in impos-
ing an enhanced sentence, this error did not affect the
district court’s subject-matter jurisdiction, which had been
properly obtained pursuant to § 3231. See Prou, 199 F.3d at
45; Baucum, 80 F.3d at 543-44. Thus, the only question that
arises from the government’s § 851(a) information “concerns
the court’s authority to impose an enhanced sentence . . .
[and] is simply not a question of subject-matter jurisdic-
tion.” Prou, 199 F.3d at 45.
The second category of jurisdictional problems “includes
rules that cannot be waived by the parties, and which are
loosely called ‘jurisdictional’ because they have this fea-
ture in common with the genuine jurisdictional limits.”
Lawuary, 211 F.3d at 379 (Easterbrook, J., concurring).
20 Nos. 01-3715, et al.
However, that § 851(a) is an unqualified right (“[No] per-
son . . . shall”) does not distinguish it from other unquali-
fied entitlements that defendants possess and can waive,
and consequently are not jurisdictional. See id. (stating
that defendants may waive indictment despite the Fifth
Amendment’s unqualified language); see also New York
v. Hill, 528 U.S. 110, 114-16, 120 S. Ct. 659, 145 L. Ed.
2d 560 (2000) (Interstate Agreement on Detainers, which
contains unqualified language concerning when a defendant
transferred to another state shall be brought to trial, does
not preclude waiver and forfeiture); United States v. Mez-
zanatto, 513 U.S. 196, 200-04, 115 S. Ct. 797, 130 L. Ed. 2d
697 (1995) (holding that defendant may waive right against
self-incrimination from statements made during plea nego-
tiations).
This second category of jurisdictional problems reflects
the “chameleon-like quality of the term ‘jurisdiction’ ” and
the fact that judges and legislators sometimes use the
term jurisdiction to erroneously refer to a court’s authority
to issue a specific type of remedy, rather than to the court’s
subject-matter jurisdiction. Prou, 199 F.3d at 45. For
example, in Steel Co., the Supreme Court held that 42
U.S.C. § 11046(c), which provided that the “district court
shall have jurisdiction” to impose a civil remedy in certain
situations, did not affect subject-matter jurisdiction. See
523 U.S. at 89-93. Rather, the Court held that § 11046(c)
should be read as merely affecting courts’ remedial power
to enforce violations of that statute by imposing civil pen-
alties. See id.
The Supreme Court’s recent opinion in United States v.
Cotton, ___ U.S. ___, 122 S. Ct. 1781 (2002) is also illustra-
tive. There, the Court overruled Ex Parte Bain, 121 U.S. 1
(1887), which had held that defects in the indictment were
jurisdictional. See Cotton, 122 S. Ct. at 1785. The Cotton
Court stated that the desire to correct constitutional errors
“led to a somewhat expansive notion of jurisdiction,” and
that Bain’s concept of jurisdiction was not what that term
Nos. 01-3715, et al. 21
means today—“the courts’ statutory or constitutional power
to adjudicate the case.” Id. at 1784-85 (quotations omitted)
(emphasis added). Therefore, the Court overruled Bain
and held that defects in the indictment do not deprive a
court of jurisdiction. See id. at 1785.
Section 851(a) affects the length of sentences and, similar
to the statute at issue in Steel Co., § 851(a), merely affects
district courts’ power to impose penalties after substantive
violations have occurred. Therefore, § 851(a) has nothing to
do with subject-matter jurisdiction, as the Supreme Court
has defined that term in Cotton. In sum, today we hold that
§ 851(a)’s procedural requirements are not jurisdictional,
and our prior cases holding otherwise are expressly over-
ruled on that issue.4
We now turn to the question of whether the government’s
service of its information satisfied § 851(a) in this case.
Section 851(a) requires the government to serve its informa-
tion before trial. Federal Rule of Criminal Procedure 49(b)
governs the service of papers in criminal cases and states
that “[s]ervice upon the attorney or upon a party shall be
made in the manner provided in civil actions.” The relevant
civil rule, Federal Rule of Civil Procedure 5(b), provides
that “[s]ervice . . . is made by . . . [m]ailing a copy to the last
known address of the person served” and that “[s]ervice by
mail is complete on mailing.” In United States v. Novaton,
271 F.3d 968, 1015 (11th Cir. 2001), the government filed
a § 851(a) information the day before trial commenced and
mailed a copy of it to the defendant’s counsel that same day.
The court noted that Federal Rule of Criminal Procedure
49(e) and Federal Rule of Civil Procedure 5(b) applied and
accordingly held that because the government mailed the
4
This opinion was circulated among all judges of this court in
regular active service pursuant to Circuit Rule 40(e). No judge
favored a rehearing en banc on the question of the jurisdiction-
al nature of § 851(a).
22 Nos. 01-3715, et al.
information the day before trial, the “service of the govern-
ment’s § 851 notice in this case was completed the day
before trial began, in conformance with the procedural re-
quirements of 21 U.S.C. § 851(a)(1).” Id. at 1016.5 Likewise
in our case, the government’s § 851(a) information was
served two days before trial when the government mailed
it to defense counsel, and thus the government satisfied the
requirements of § 851(a). See id.; see also United States v.
White, 980 F.2d 836, 840 n.8 (2d Cir. 1992) (holding that
service of § 851 information is complete upon mailing).
Moreover, the government advised Deneise’s counsel
before trial that it would seek an enhanced sentence due
to Deneise’s prior convictions if she rejected its plea offer.
Further, the government identified the specific convictions
upon which it would rely for the enhancement at that
same time. After Deneise rejected the plea three days before
trial, the government filed its § 851(a) information and
mailed a copy to defense counsel. In addition, during a
pretrial conference two days before trial, the government
told defense counsel that it had filed the information the
preceding day and had mailed a copy to him. In her appel-
late brief, Deneise conceded that her attorney communi-
cated this information to her before trial. Thus, Deneise had
actual knowledge of the enhancement before trial, which
supports our conclusion that the district court properly
enhanced Deneise’s sentence. See United States v. Tringali,
71 F.3d 1375, 1382 (7th Cir. 1995) (“[Defendant] received
actual notice of the government’s intent to seek enhanced
5
The court in that case also stated that service of a § 851(a)
information before trial was a jurisdictional requirement. See id.
at 1015. However, this characterization did not affect the outcome
of that case because the court found that the government had
satisfied § 851(a). See id. at 1016. Thus, that court’s jurisdictional
characterization, which conflicts with our holding today that
§ 851(a) is not jurisdictional, is irrelevant to the analysis of
whether the government satisfied § 851(a).
Nos. 01-3715, et al. 23
penalties against him. That is more than sufficient for
purposes of section 851.”) (emphasis in original); United
States v. Brown, 921 F.2d 1304, 1308-09 (D.C. Cir. 1990)
(holding that § 851(a)’s requirements were satisfied due to
defendant’s actual notice even though the information was
filed after trial had commenced); United States v. Weaver,
905 F.2d 1466, 1481 (11th Cir. 1990) (holding that oral
notification and timely service satisfied § 851(a)’s require-
ments even though information was not filed until after
trial had begun). Thus, in sum, because the government
mailed its information to defense counsel before trial and
because Deneise had actual notice of the enhancement prior
to trial, we hold that the district court did not err in
imposing an enhanced sentence.
C. Alfredo Ceballos
Before trial, Ceballos moved to suppress his oral confes-
sion, arguing that it was not voluntary. At the suppression
hearing, the following facts were adduced: DEA agents
arrested Ceballos and his wife Lisa Ceballos at their home
pursuant to a search warrant. Major Dennis Holt of the
Vincennes Police Department and DEA Task Force then
took Ceballos into the bedroom, while his wife and the re-
maining agents stayed in the living room. Major Holt read
Ceballos his Miranda rights in English, and Ceballos in-
dicated that he understood and could speak English and
that he wanted to give a statement.6 Major Holt falsely
informed Ceballos that the DEA had arrested Miguel Quin-
tanilla in Dallas and that he had implicated Ceballos in
several drug transactions, and Ceballos then spoke with
6
Major Holt testified that he believed that Ceballos could speak
English because he had heard Ceballos speaking English during
one of the intercepted phone conversations and because he was
married to a woman whose only language was English.
24 Nos. 01-3715, et al.
Major Holt for approximately forty-five minutes, answering
a series of questions. Major Holt testified that Ceballos
spoke in English throughout the interview, albeit mostly
in broken sentences. Nevertheless, he stated that Ceballos
could speak English well and could understand the ques-
tions posed to him. After the interview with Major Holt,
Officer Neftali Padilla read Ceballos his Miranda rights in
Spanish. Ceballos again indicated that he understood his
rights and that he wanted to talk to the police. Shortly
thereafter, Ceballos was taken to a police station in Evans-
ville, Indiana, where Agent Kress read him his Miranda
rights in English. For a third time, Ceballos indicated that
he understood his rights and he then spoke with Agent
Kress for about thirty to forty-five minutes.
Ceballos moved to suppress his two statements, arguing
that they were not voluntary, but the district court denied
Ceballos’s motion and admitted his statements into evi-
dence. We review the voluntariness of a confession de novo,
and in doing so will accept the district court’s findings
of fact absent clear error. See United States v. Sablotny,
21 F.3d 747, 751-52 (7th Cir. 1994). A confession is volun-
tary if in light of the totality of the circumstances, it was
“not secured through psychological and physical intimida-
tion but rather was the product of a rational intellect
and a free will.” Id. at 750 (quotations omitted). We have
previously identified several factors that are relevant
to determining voluntariness of a confession, including
but not limited to whether the defendant was read his
Miranda rights, the defendant’s age, the duration and
nature of the questioning, and whether the defendant
was punished physically. See id.
In this case, the totality of the circumstances militates in
favor of the conclusion that Ceballos’ confession was vol-
untary. He was read his Miranda rights three times, in
both English and Spanish. In each instance, he indicated
that he understood his rights but still wished to give a
statement. In addition, he was twenty-four years old and
Nos. 01-3715, et al. 25
there is no evidence that he had a diminished mental ca-
pacity. See Wiedner v. Thieret, 932 F.2d 626, 627-28 (7th
Cir. 1991) (finding that a confession made by a seventeen-
year-old defendant who claimed to suffer brain damage due
to drug abuse was voluntary). Further, the duration of his
questioning was relatively short (two forty-five-minute
periods of questioning). See United States v. Cichon, 48 F.3d
269, 271, 276 (7th Cir. 1995) (holding confession voluntary
where defendant was questioned for two hours). Finally,
there was no evidence that he was punished physically.
Further, “coercive police activity is a necessary predicate
to the finding that a confession is not voluntary.” United
States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998). To that
end, Ceballos focuses on Major Holt’s false comment that
Miguel Quintanilla had already implicated Ceballos, which
he argues overbore his will and constituted impermissible
coercion.7 However, we allow “considerable latitude in
playing on the guilt and fears of the person interrogated in
order to extract a confession that he will shortly regret
having given.” Johnson v. Trigg, 28 F.3d 639, 641 (7th Cir.
1994). In fact, we have held that a law-enforcement agent
may “actively mislead” a defendant in order to obtain a
confession, so long as a rational decision remains possible.
United States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir.
1990). In Holland v. McGinnis, 963 F.2d 1044, 1051 (7th
Cir. 1992), the defendant confessed shortly after a police
officer had lied to him that a witness had seen the defen-
dant in the alley in which the victim had been raped. We
held that this statement, without more, did not render
the defendant’s confession involuntary, stating that “[o]f
7
Ceballos also complains about Major Holt’s statement that
Ceballos might lose custody of his children if his wife remained
incarcerated. However, this statement occurred after Ceballos had
given his two statements, and therefore did not constitute psy-
chological intimidation that coerced Ceballos into confessing.
26 Nos. 01-3715, et al.
the numerous varieties of police trickery . . . a lie that
relates to the suspect’s connection to the crime is the least
likely to render a confession involuntary.” Id. As in Hol-
land, Major Holt’s lie related to Ceballos’s connection to the
crime, and we have no problem concluding that this com-
ment, in light of the totality of the circumstances, did not
render Ceballos’s confession involuntary. See id.; see also
United States v. Orso, 266 F.3d 1030, 1039 (9th Cir. 2001)
(false statement that witness had seen him with a gun was
not coercive); Lucero v. Kirby, 133 F.3d 1299, 1311 (10th
Cir. 1998) (lie regarding fingerprint evidence).
D. Miguel Quintanilla
1. Motion to Dismiss
On the day trial commenced, Miguel filed a motion to
dismiss due to an alleged Sixth Amendment violation based
on the performance of his initial attorney, Scott Danks.
The district court ultimately denied Miguel’s motion to dis-
miss, which we review for an abuse of discretion. See United
States v. Alanis, 265 F.3d 576, 584 (7th Cir. 2001). Danks
was appointed as Miguel’s counsel on September 26, 2000,
and continued to represent him until his motion to with-
draw was granted on April 12, 2001. During his representa-
tion, Danks assisted Miguel in waiving his initial appear-
ance and entering a plea of not guilty. Otherwise, however,
Danks did not communicate with his client nor file any
motions on his behalf. The same day that the district court
granted Danks’s motion to withdraw, it also appointed Bev-
erley Corn to represent Miguel. Corn represented Miguel
throughout the remainder of the pre-trial proceedings, dur-
ing trial, and continues to represent him on appeal. Corn
filed numerous motions on his behalf, including several
motions in limine to exclude the expert testimony of Agents
Kress and Styron, a motion in limine to exclude one inter-
cepted phone conversation with Miguel’s daughter, motions
to suppress the evidence obtained from the Indiana and
Nos. 01-3715, et al. 27
Texas wiretaps, and the motion to dismiss on the day of tri-
al.8 Further, at trial, Corn cross-examined many govern-
ment witnesses and made closing arguments.
For Miguel to prevail on his claim, he must establish that
Danks’s performance was deficient and that the deficient
performance prejudiced him. See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).9
A failure to establish either prong would result in a denial
of Miguel’s claim. See Rastafari v. Anderson, 278 F.3d 673,
688 (7th Cir. 2001). The government agrees with Miguel
that Danks rendered deficient performance, but argues that
he has not established that this deficiency prejudiced him.
To establish prejudice, Miguel must demonstrate “a reason-
able probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been differ-
ent.” Strickland, 466 U.S. at 694. A reasonable probability
involves a probability sufficient to undermine the confi-
dence in the outcome of the case. See id.
In United States v. Goudy, 792 F.2d 664, 671-72 (7th Cir.
1986), the defendant claimed that his counsel was ineffec-
tive for, among other things, failing to communicate with
8
The district court granted the motion in limine regarding the
conversation with Miguel’s daughter, but denied the other mo-
tions.
9
Miguel argues that he need not establish prejudice because
Danks was “totally absent from his case,” and the Supreme Court
has held that a defendant can establish a “constitutional error
without any showing of prejudice when counsel was . . . totally
absent . . . during a critical stage of the proceedings.” United
States v. Cronic, 466 U.S. 648, 659 n.25, 104 S. Ct. 2039, 80 L. Ed.
2d 657 (1984) (plurality). However, Miguel does not identify any
critical stage of the proceedings at which he was without rep-
resentation, and indeed the record reveals none. Therefore, Cronic
does not apply to Miguel’s case, and he must establish prejudice
to prevail on his claim. See Strickland, 466 U.S. at 687.
28 Nos. 01-3715, et al.
him for two and one-half months preceding trial and for
failing to file any pre-trial motions. We held that the de-
fendant’s claim failed because he did not “suggest in any
way how the outcome of the trial would have differed if
some unspecified motions had been filed or if his attorney
had met with him some unspecified number of times before
trial.” Id. at 672; see also United States v. Olson, 846 F.2d
1103, 1108 (7th Cir. 1988) (rejecting defendant’s ineffective
assistance of counsel claim based on attorney’s inadequate
pre-trial contact because defendant “failed to affirmatively
show prejudice”). In this case, Miguel has not suggested
that Danks’s performance prejudiced him, and thus, as in
Goudy and Olson, his claim must fail.
2. Enhanced Sentence
At the time of Miguel’s conviction, he had three prior
felony drug convictions. Before trial, the government filed
a timely information pursuant to § 851 based upon these
convictions, and accordingly, at sentencing, the district
court found that Miguel faced a mandatory sentence of life
imprisonment due to the drug quantity and his prior felony
convictions. On appeal, Miguel contends that based on
Apprendi, 530 U.S. at 490, the district court erred in sen-
tencing him to life imprisonment without submitting the
fact of his three prior felony convictions to a jury. However,
Apprendi specifically exempts prior convictions from facts
that the government must prove to a jury beyond a reason-
able doubt. See id.; see also Brough, 243 F.3d at 1081
(holding that “penalty enhancements based on recidivism
need not be established beyond a reasonably doubt”). There-
fore, Miguel’s claim must fail.
E. Cross-Appeal
The government cross-appeals the district court’s refusal
to enhance Ceballos’s and Martinez-Guzman’s sentences
Nos. 01-3715, et al. 29
pursuant to Sentencing Guideline § 3B1.4, which provides
for a two-level increase if the defendant used a person less
than eighteen years of age to commit the offense. In this
case, the district court found that Ceballos and Martinez-
Guzman used Jorge Hernandez-Martinez, a person less
than eighteen years of age, to commit an offense. However,
the district court also found that § 3B1.4 did not apply
because neither Ceballos nor Martinez-Guzman used Her-
nandez-Martinez to shield themselves from prosecution and
accordingly did not enhance their sentences pursuant to
that Guideline.10 We review the district court’s interpreta-
tion of the Sentencing Guidelines de novo. See United States
v. Mayberry, 272 F.3d 945, 948 (7th Cir. 2001).
We begin by noting that the plain language of § 3B1.4
states that “[i]f the defendant used or attempted to use a
person less than eighteen years of age to commit the
offense . . . increase by 2 levels.” The Application Notes to
§ 3B1.4 further state that using a minor includes “directing,
commanding, encouraging, intimidating, counseling, train-
ing, procuring, recruiting, or soliciting” the minor. In this
case, the district found that Ceballos and Martinez-Guzman
used a minor by “directing” Hernandez-Martinez’s actions.
For example, during controlled purchases with undercover
DEA agents, Ceballos and Martinez-Guzman told Her-
nandez-Martinez to quote certain prices to the agents.
Ceballos and Martinez-Guzman do not argue that Her-
nandez-Martinez’s involvement did not constitute “use”
under § 3B1.4, as indeed they cannot. See, e.g., United
States v. Vivit, 214 F.3d 908, 920 (7th Cir. 1999) (holding
10
Specifically, the district court stated that “this particular ad-
justment is addressed to an individual who has a minor commit
a crime or substantially participate in the role in a crime to shield
the adult from prosecution because of the fact that the juvenile
will not be prosecuted to the extent that an adult will be prose-
cuted.”
30 Nos. 01-3715, et al.
that § 3B1.4 applied when the defendant told a minor to
fraudulently sign an attendance sheet). Therefore, the
district court correctly found that Ceballos and Martinez-
Guzman used a minor and accordingly should have en-
hanced their sentences.
The district court, however, found that § 3B1.4 contains
an additional requirement that the defendants must have
intended to shield themselves from prosecution. The plain
language of § 3B1.4 does not support this interpretation,
and absent a clear manifestation of contrary intent, we
give effect to the plain language of the Sentencing Guide-
lines. See United States v. McClain, 252 F.3d 1279, 1285
(11th Cir. 2001). Moreover, the district court’s interpreta-
tion of § 3B1.4 requires a finding that the defendant had
actual knowledge that the person he used to commit the
offense was a minor, and two other courts have held that
§ 3B1.4 does not require such actual knowledge. See United
States v. Gonzalez, 262 F.3d 867, 870 (9th Cir. 2001) (“We
decline [the defendant’s] invitation to read a scienter re-
quirement into section 3B1.4 because the plain language of
the guideline does not require that a defendant have
knowledge that the individual is under eighteen years of
age for the enhancement to apply.”); McClain, 252 F.3d at
1286. In McClain, the court also stated that requiring the
government to prove scienter would frustrate the purpose
of § 3B1.4, which is to protect minors from being used to
commit crimes. See 252 F.3d at 1286.
We have never ruled on the precise issue at hand—
whether the government must prove that the defendant
intended to use the minor to shield himself from prosecu-
tion in order to invoke § 3B1.4. However, several decisions
are instructive. For example, in United States v. Smith, 223
F.3d 554, 566 (7th Cir. 2000), we addressed 21 U.S.C.
§ 861(a)(1), which makes it unlawful to use a person under
the age of eighteen to violate any provision of the Controlled
Substance Act. We held that § 861(a)(1) does not require
Nos. 01-3715, et al. 31
the government to establish that the defendant knew the
minor’s age to support a conviction. See id. In reaching this
decision, we recognized that requiring the government to
prove the defendant’s knowledge of the minor’s age would
undermine the legislative purpose behind the statute. See
id. In addition, in United States v. Ramsey, 237 F.3d 853,
859-60 (7th Cir. 2001), we addressed whether the fact that
the minor had a substantial role in the offense precluded
the application of § 3B1.4. We held that it did not, noting
that “[t]o shield defendants from application of this provi-
sion simply because the minor that they solicited is given a
substantial role in the commission of the offense would be
a blow to the purpose of the provision: to discourage defend-
ants from involving minors in the commission of crimes.”
Id. at 860.
Based on the plain language and purpose of § 3B1.4, our
prior interpretation of the federal statute addressing the
use of minors by drug traffickers, and the Ninth and Elev-
enth Circuits’ interpretation of § 3B1.4, we hold that the
government is not required to prove that the defendants
intended to use the minor to shield themselves from pros-
ecution in order for § 3B1.4 to apply. Accordingly, the
district court erred in not enhancing Ceballos’s and Mar-
tinez-Guzman’s sentences, which we must vacate and
remand for re-sentencing.
III. Conclusion
For the foregoing reasons, we AFFIRM the convictions and
sentences of all of the defendants, except for the sentences
of Ceballos and Martinez-Guzman, which are VACATED and
REMANDED for re-sentencing consistent with this opinion.
32 Nos. 01-3715, et al.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-27-02