United States v. Hernandez, Abraham

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ABRAHAM HERNANDEZ, et al.,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 CR 510—Elaine E. Bucklo, Judge.

____________

ARGUED OCTOBER 15, 2002—DECIDED JUNE 3, 2003

____________

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

I. History

In August 1995, the FBI, with the help of the Chicago

Police Department, began an investigation of a Chicago

street gang known as the Project Latin Kings. The authori-

ties suspected this gang, a subgroup of the much larger

Latin Kings gang, of operating a drug ring in the Chicago

Housing Authority’s Lathrop Homes. The investigation

lasted over two years and resulted in the collection of a

2 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

substantial amount of evidence. As part of the investiga-

tion, several officers made undercover drug buys from

members of the gang and conducted surveillance of the

gang. The investigation also included the installation of

a secret surveillance camera in a building down the street

from where the Project Kings did much of their drug

business. Over a six-month period, this camera produced

a significant amount of video footage of gang members

making drug sales. Further, three Project King members

agreed to cooperate with the government investigation,

providing valuable information about gang activities.

Two of these informants wore body recorders when they

went undercover, making audio tapes of gang meetings at

which members discussed their narcotics business.

Based on the information obtained in this extensive

investigation, on September 18, 1997, a federal grand

jury returned a thirty-four count indictment charging

twenty-one individuals with various drug offenses. Count 1

charged all defendants with conspiring to distribute co-

caine base in violation of 21 U.S.C. § 846. Counts 2 and 3

charged five of the defendants with using minors in a

drug operation in violation of 21 U.S.C. § 861. The remain-

ing counts charged various individuals with substantive

distribution offenses in violation of 21 U.S.C. § 841(a)(1).

Several of the defendants pleaded guilty and cooperated

with the government in the prosecution of the remaining

defendants. In all, eight defendants went to trial: Antonio

Rosario, Samuel Santana, Wilfredo Hernandez, Carl Stev-

enson, Roosevelt McMullen, Orlando Diaz, Abraham Her-

nandez, and Sandy Garvin.

At trial, the government produced a substantial amount

of evidence explaining how the drug conspiracy worked.

Former gang members, cooperating with the government,

testified that the gang used force or the threat of force

to keep anyone other than members of the Project Kings

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99-2598, 99-2763, 99-2983, 01-1690

from selling drugs in the Lathrop Homes. This allowed the

gang members to sell drugs individually without competi-

tion from non-Project Kings. Further, they testified that

on certain days, called “Nation Days,” all members of the

gang were required to sell crack cocaine and remit the

proceeds to the gang’s treasury. The profits from Nation

Days were used to provide money to gang members in

custody, to buy additional drugs and guns, to pay for gang

apparel, and to fund parties and trips for gang members.

Juan Hernandez, the gang’s treasurer and a government

witness, estimated that the Project Kings scheduled a

Nation Day once or twice a week, and that the sales of

cocaine on these days could produce three to four thousand

dollars. In addition to this testimony, the video and

audio tapes from the FBI investigation were played to the

jury, allowing them to see drug transactions taking place

and to hear the meetings at which the defendants planned

their business. The government also produced ledgers

that detailed the assignments that members were to

perform on Nation Days. Also, officers and agents who

participated in the investigation testified about their

undercover dealings and their surveillance of the gang’s

drug activities.

At trial, the government introduced testimony explain-

ing the role that the eight defendants on trial played in

the drug ring. In 1995, Antonio Rosario was elected to

the head position in the gang’s hierarchy, called the “Inca.”

As Inca, he was responsible for appointing the other offi-

cers and for ensuring that the treasurer and the chief

enforcers were doing their jobs. He also led “demos,” gang

meetings at which Nation Days were planned and other

gang business was discussed. Samuel Santana held the

position of “Cacique,” the second in command. He occasion-

ally led meetings and set Nation Days, and he attended

demos to assist in planning Nation Days. Wilfredo Her-

4 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

nandez and Carl Stevenson were the gang’s chief enforcers.

They organized the security and lookouts on Nation Days,

and they enforced the gang’s rules by administering “pun-

ishments” for violations. Orlando Diaz, Roosevelt McMul-

len, and Abraham Hernandez worked as street sellers

for the gang and performed security as well. Sandy Garvin

was an older member of the Project Kings, a “Retired King.”

Because of his age he was not required to participate

in Nation Days. The gang did, however, permit Garvin to

sell drugs for his own benefit in the Lathrop Homes.

Following a four-week trial, the jury found each defen-

dant guilty on at least some of the counts and the judge

gave the defendants varying sentences. Rosario was found

guilty as charged in Counts 1, 2, 3, and 20, and sentenced

to 360 months imprisonment. The jury found Santana

guilty as charged in Counts 1, 2, 3, 4, and 10, and he

was sentenced to 240 months imprisonment. Wilfredo

Hernandez was found guilty as charged in Counts 1 and 3,

and sentenced to 360 months imprisonment. Stevenson

was found guilty as charged in Counts 1, 3, 18, 19 and 21,

and sentenced to 292 months imprisonment. The jury

found Diaz guilty as charged in Count 1 of the indictment,

and the judge sentenced him to 240 months imprisonment.

McMullen was also found guilty of Count 1 and sentenced

to 141 months imprisonment. Abraham Hernandez was

found guilty of Count 1, but acquitted of Counts 23 and 24;

he was sentenced to 151 months imprisonment. The jury

found Garvin guilty as charged in Counts 20, 26, 28, and

31, but acquitted him of the conspiracy charged in Count 1.

The judge sentenced Garvin to 262 months imprisonment.

These eight defendants now challenge various aspects of

their convictions and sentences. Ultimately, we reject all

their arguments and affirm the sentences imposed by the

district court.

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99-2598, 99-2763, 99-2983, 01-1690

II. Analysis

A. Evidentiary Rulings

Defendants first argue that they should be granted a

new trial because the district court made erroneous rul-

ings regarding the admission of evidence related to drug

sales on days other than Nation Days and to incidents of

gang violence perpetrated by the Project Kings. We give

special deference to a trial judge’s evidentiary rulings

“because of the trial judge’s first-hand exposure to the

witnesses and the evidence as a whole, and because of the

judge’s familiarity with the case and ability to gauge the

impact of the evidence in the context of the entire pro-

ceeding.” United States v. Van Dreel, 155 F.3d 902, 905

(7th Cir. 1998). Consequently, we will reverse a decision

on admissibility of evidence only if the trial court has

“clearly abused its discretion,” which typically occurs only

“where no reasonable person could take the view adopted

by the trial court.” United States v. Hughes, 970 F.2d 227,

232 (7th Cir. 1992) (quotations omitted). Further, where

the alleged error of admission occurred during the trial, as

is the case here, we “will grant a new trial only if the

error had a substantial influence over the jury, and the

result reached was inconsistent with substantial justice.”

United States v. Walton, 217 F.3d 443, 449 (7th Cir. 2000)

(quotations omitted). Defendants have not met this burden.

1. Evidence of Drug Sales on Non-Nation Days

Defendants argue that the district court erred by repeat-

edly admitting evidence of drug sales that either did not

involve any of the defendants on trial or did not occur

on Nation Days. This evidence, defendants argue, was

outside the scope of the charged conspiracy and there-

fore irrelevant. Underlying this argument is an assump-

tion that the charged conspiracy was limited to the sale

of drugs on Nation Days. The government vigorously

6 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

challenges this assumption, arguing that the conspiracy

charged was much broader.

The language in Count 1 of the indictment charges the

defendants with a conspiracy to sell crack cocaine in the

Lathrop Homes and to exclude other sellers through the

use of violence. While this count does list the sale of

narcotics on Nation Days as part of the conspiracy, it

does not limit the charge only to those sales.

Defendants contend that, even though the indictment

uses broad language, the trial judge ruled that the charged

conspiracy related only to Nation Days. Our review of the

record, however, reveals no such ruling. Each time an

issue related to the scope of the charged conspiracy arose

at trial the district judge either delayed ruling on it or

admitted evidence of drug deals on non-Nation Days over

defendants’ relevance objections. The only instance in which

the district court arguably determined that the conspir-

acy involved only Nation Days was at sentencing when the

court looked only to the sales on Nation Days as relevant

conduct. This determination at sentencing speaks to the

scope of the conspiracy proved but says little about the

scope of the conspiracy charged.1

1

Defendants cite United States v. Torres-Ramirez, 213 F.3d 978,

983 (7th Cir. 2000), for the proposition that the findings of the

district court at sentencing “reflect[ ] a considered judgment by

the district court” about the scope of the agreement in which the

defendants engaged. The cited phrase, however, is taken out

of context. In Torres-Ramirez, we considered the findings at

sentencing to be a “considered judgment” about what the evidence

at trial showed. We did not hold or imply that a finding at

sentencing amounts to any sort of judgment about what evi-

dence was relevant at trial.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 7

99-2598, 99-2763, 99-2983, 01-1690

From the indictment and the judge’s rulings at trial, it

is clear that the conspiracy charged involved more than

just sales on Nation Days; it also encompassed the gang’s

agreement to forcibly exclude non-Project King sellers

and thereby to eliminate competition from outsiders.

Thus, the district court did not abuse its discretion by

allowing the government to produce evidence of sales on

non-Nation days because this evidence was arguably

relevant to the issue of whether the Project Kings excluded

all sellers who were not members of their gang, and this

issue was part of the charged conspiracy.

Even if we were to assume that the judge improperly

admitted evidence of drug sales outside the charged

conspiracy, remand for a new trial would not be appropri-

ate because the error did not have “a substantial influence

over the jury,” nor was the result reached “inconsistent

with substantial justice.” Walton, 217 F.3d at 449. Defen-

dants give the impression in their brief that the jury

was overwhelmed with and hopelessly confused by ir-

relevant evidence of drug transactions on non-Nation days.

This conclusion, however, is not borne out by the record.

That the allegedly improper evidence did not substan-

tially influence the jury is shown by its verdict with respect

to Sandy Garvin. The government charged Sandy Garvin

with conspiracy to distribute drugs even though it was

clear that Garvin had no connection to the sale of drugs

on Nation Days. It is apparent from the jury’s verdict of

not guilty on Garvin’s conspiracy charge that they distin-

guished between Nation Days and non-Nation Days and

accepted only the Nation Day sales as establishing the

conspiracy. Therefore, we conclude that the jury was

not overwhelmed and confused by non-Nation Day evidence.

In addition, the evidence of the conspiracy, at least as to

Nation Days, was substantial; thus the conspiracy convic-

tion was not inconsistent with substantial justice. The

8 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

video tape evidence showed defendants making numerous

drug sales—some of which occurred on Nation Days—and

the undercover police officers, who had purchased drugs

from the gang on Nation Days, testified against defen-

dants. The government also produced four former mem-

bers of the gang who testified about the practices of the

gang with respect to sales of drugs on Nation Days. And

the jury heard audio tapes of the defendants at gang

meetings discussing when to hold Nation Days, discussing

the profits from Nation Days, and discussing various

other elements of their narcotics business. Further, the jury

viewed ledgers that showed when each of the defen-

dants was scheduled to sell drugs or conduct security on

Nation Days. Given this evidence, we decline to grant de-

fendants’ request for a new trial.

2. Gang Violence

Defendants next argue for a new trial based on the trial

court’s admission of evidence relating to violence perpe-

trated by defendants and other members of the Project

Kings. Defendants acknowledge that “each time violence

was introduced the district court expressed consternation,”

and in some cases ruled that such evidence could not

be admitted. (Joint Br. 14). They argue, however, that

despite the court’s rulings the jury still heard significant

amounts of evidence about gang violence and that the

trial court abused its discretion in not granting them a

new trial based on the jury’s exposure to this evidence.

Even assuming that the jury was improperly allowed

to hear evidence about violence, once again it is not at

all apparent that the error “had a substantial influence

over the jury.” Walton, 217 F.3d at 449. The evidence of

violence that did come in was comparatively slight in light

of the length of this trial, which lasted four weeks and

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 9

99-2598, 99-2763, 99-2983, 01-1690

produced a trial transcript nearly 3,300 pages long. Out

of this large record, defendants point to only five in-

stances where gang violence was mentioned. All of these

references were brief (most of them consisting only of

one sentence or less in the record) and were properly

handled by the trial judge, either by sustaining a defense

objection or by allowing the evidence in on a limited basis.

Such meager references to violence could hardly have had

a substantial influence on the jury’s decision.

Further, we recently held that the trial court did not

abuse its discretion by admitting evidence of violence in a

similar drug conspiracy case. United States v. Thompson,

286 F.3d 950, 969 (7th Cir. 2002) (holding that the dis-

trict court did not abuse its discretion by allowing in

evidence that defendants had been involved in several

shootings and an alleged kidnaping because it showed

how members of the drug conspiracy conducted business);

see also United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999)

(affirming admission of evidence of violence committed

on behalf of drug conspiracy because it explained the

mutual trust between coconspirators); United States v.

Molina, 75 F.3d 600, 602 (10th Cir. 1996) (affirming

admission of evidence of defendant’s repossession of car

at gunpoint because it showed his organizational role in

the drug conspiracy); United States v. Rodrequez, 859 F.2d

1321, 1327 (8th Cir. 1988) (affirming admission of evidence

that defendant beat a person with a pistol for failure to

repay a loan because it showed how conspiracy operated).

Thus, we see no way in which the admission of the vio-

lence evidence in question here could have produced a

“result . . . inconsistent with substantial justice.” Walton,

217 F.3d at 449 (quotations omitted). We find that the

district court did not abuse its discretion by refusing to

grant defendants a new trial.

10 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

B. Lesser-Included-Offense Instruction

Defendants next argue that the trial court erred by not

instructing the jury that they could convict defendants

of the lesser included offense of mere possession instead of

the greater charge of possession with intent to distribute.

At trial, when defendants requested the mere-possession

instruction, the district court questioned whether there

had been any evidence submitted to the jury which would

support such an instruction. The court recalled that there

was very little, if any, evidence that any of the defen-

dants personally used drugs. Defense counsel responded

that the proposed instruction was based only on possession

and not necessarily use. The court then ruled that the

lesser-included-offense instruction would not be given,

stating that either defendants possessed the cocaine to use

it or to distribute it and that there was no evidence of

personal use presented. We review the trial court’s refusal

to give a lesser-included-offense instruction for abuse

of discretion and therefore will reverse only “where no

reasonable person could take the view adopted by the trial

court.” Hughes, 970 F.2d at 232 (quotations omitted).

We begin by noting that defendants are not entitled to

a lesser-included-offense instruction “as a matter of course.”

United States v. Wright, 131 F.3d 1111, 1112 (4th Cir.

1997). Rather, it must be shown that evidence was pre-

sented at trial from which a rational jury could conclude

that a person simply possessed narcotics and did not in-

tend to distribute them. Schmuck v. United States, 489 U.S.

705, 716 n.8 (1989). Defendants rely almost solely on the

fact that they were found in possession of a small amount

of crack cocaine to support their argument for an instruc-

tion on simple possession. We agree with the Fourth Cir-

cuit’s conclusion that the mere fact that a defendant

possessed a small amount of cocaine “is simply insuffi-

cient alone to require the lesser-included offense instruc-

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tion.” Wright, 131 F.3d at 1113. Indeed, in the case before

us, the record is devoid of any evidence that defendants

possessed these drugs for any purpose other than to

distribute them. Defendants rely heavily on the Fifth

Circuit case of United States v. Lucien, 61 F.3d 366 (5th Cir.

1995), to establish that merely possessing a small amount

of drugs warrants the district court to give a lesser-

included-offense instruction. Even in that case, though,

there was at least some argument made at trial—specifi-

cally, in the defense’s examination of the government

expert—as to whether the defendant there possessed the

drugs for his own personal use. See id. at 375. Defendants

here point to no place in the record where they even

raised the issue of mere possession during trial. Indeed,

they even conceded to the district judge that they were

not arguing that they possessed the drugs for their own

personal use, and no other reason for possessing them

was given to the judge or produced at trial. In light of

this complete lack of evidence to support a jury verdict of

simple possession, we find that the district court did

not abuse its discretion by refusing to give the lesser-

included-offense instruction.

C. Bruton Issue

Defendants, other than Carl Stevenson, next argue that

their Sixth Amendment rights to confront adverse wit-

nesses were violated by the admission of Carl Stevenson’s

post-arrest statement. At trial, Agent Anthony Thomas

testified that Stevenson told investigators in a post-arrest

interview that (1) he was a member of the “Project Kings”

and served as the gang’s enforcer, (2) the gang sold crack

cocaine and held “Nation Days,” and (3) disciplinary action

was taken by the gang against “Latin Kings” for not

working on Nation Days. The trial judge instructed the

12 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

jury that they should consider the statement only as

evidence against Stevenson and not against any of the

other defendants. Despite the instruction, defendants

objected to the admission of the statement, arguing in

reliance on Bruton v. United States, 391 U.S. 123 (1968),

that their Confrontation Clause rights were violated

because the statement implicated them in the conspiracy

by referring to “Latin Kings,” “Project Kings,” and “Nation

Days.”

We review evidentiary rulings that impact the Sixth

Amendment right to confront witnesses de novo. United

States v. Castelan, 219 F.3d 690, 694 (7th Cir. 2000). We

begin by noting, as the Supreme Court did in Richardson

v. Marsh, that there is “an almost invariable assumption

of the law that jurors follow their instructions,” and that

Bruton “recognized a narrow exception to this principle.”

481 U.S. 200, 206-07 (1987). In the Bruton case, the gov-

ernment introduced the confession of Evans, Bruton’s co-

defendant. Evans’s confession plainly stated that he

and Bruton had committed the crime charged. Bruton, 391

U.S. at 124-25. Because Evans was a co-defendant and did

not testify, Bruton had no opportunity to cross-examine

him and test this confession, which obviously implicated

him as well as Evans. The Court held that a defendant’s

Confrontation Clause rights are deprived when a confes-

sion of a nontestifying defendant that also “expressly

implicates” a co-defendant is admitted, even when the jury

is instructed to consider the statement only as evidence

against the declarant. Id. at 124 n.1, 135-36; see also Rich-

ardson, 481 U.S. at 208.

Since Bruton the Supreme Court has further defined the

doctrine. In Richardson, the Court made clear that some

confessions by co-defendants could be admitted if they

were sufficiently redacted so that they did not facially

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 13

99-2598, 99-2763, 99-2983, 01-1690

incriminate other defendants. 481 U.S. at 211. The Richard-

son Court noted that where a confession does not di-

rectly refer to a co-defendant, and implicates that co-

defendant only by inferences drawn from other evidence

in the trial, the chances that the jury will disregard or

be unable to follow the judge’s limiting instruction are

significantly diminished. Id. at 208. In Gray v. Maryland,

however, the Court clarified that Bruton problems are

not avoided simply by deleting from a confession the co-

defendant’s name or by merely inserting in place of the co-

defendant’s name a symbol, such as the word “deleted.” 523

U.S. 185, 197 (1998). The Court noted that this insert was

actually “facially incrimin[ating]” because the word “de-

leted” still pointed to specific people. Id. at 196-97.

After Richardson and Gray, it is clear that a redacted

confession may be admitted as long as the redaction

does not obviously refer to the co-defendants. The deter-

mination of when a term obviously refers to a co-defen-

dant may not always be easy to make. In Gray, however,

the Court insinuated that one-to-one correspondence be-

tween the inserted terms and the co-defendants at issue

makes the reference more obvious and thus more problem-

atic. That this was a primary concern is seen in the Court’s

suggestion of a possible way the Government could have

avoided the Bruton problem:

The witness who read the confession told the jury that

the confession (among other things) said,

“Question: Who was in the group that beat Stacey?”

“Answer: Me, deleted, deleted, and a few other guys.”

Why could the witness not, instead, have said:

“Question: Who was in the group that beat Stacey?”

“Answer: Me and a few other guys.”

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Gray, 523 U.S. at 196. According to the Gray Court, the

“deleted, deleted” redaction too clearly referred to the

other two participants, one of whom had died and the

other of whom was the defendant. Id. at 188, 194.

In decisions since Gray and Richardson, we have used

this one-to-one correspondence as a factor in our efforts

to determine if the redacted confession too obviously re-

fers to the co-defendants. For instance, in United States

v. Hoover, a case on which defendants rely heavily, we

held that substituting “incarcerated leader” and “unincar-

cerated leader” for the names of two defendants did not

solve Bruton problems because those terms were “obvious

stand-ins” for the names of the defendants. 246 F.3d

1054, 1059 (7th Cir. 2001). Our reasoning there relied in

part on the fact that this sort of redaction did not “avoid[ ]

a one-to-one correspondence between the confession and

easily identified figures sitting at the defense table.” Id.

In the case now before us, the one-to-one correspondence

that was present in Bruton, Gray, and Hoover does not ex-

ist. Rather, there is only an unspecified mention of a

group of people, the “Latin Kings.”2 We note that this one-

to-one analysis is probably not dispositive of the issue in

every case, but it is at least an important factor to con-

2

We note there was some speculation by the parties before trial

began as to whether the statement might include more specific

references to the Inca and Cacique (both titles of specific people

in the Latin King gang). (Tr. 14-16). But at trial when the

testimony was presented to the jury no references were made

to the Inca or Cacique, (Tr. 163-74); thus, there is no issue here

as to whether those references might have presented Bruton

problems.

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sider in determining whether the redaction obviously re-

fers to any of the co-defendants on trial.

Here, we do not find the use of the terms “Project Kings,”

“Latin Kings,” or “Nation Days” to be overly obvious. Given

that the indictment named twenty-one Project Kings as

defendants in this conspiracy there is little chance that

the jury would equate any reference to “Latin Kings” or

“Project Kings” with the eight defendants actually on trial.

Further, the Latin Kings is an extremely large gang that

has components in many parts of Chicago and indeed

all over the country. In the jury’s mind, the reference to

“Latin Kings” could well refer to any number of other Latin

Kings. Likewise, “Project Kings” referred to a sub-group

of the Latin Kings, which was much larger than the eight

defendants on trial. And it is not clear how the reference

to Nation Days directly implicates any of the defendants.

None of these terms can be said to serve as “obvious stand-

ins” for the co-defendants.

The situation here is much like the one we addressed

in United States v. Stockheimer, 157 F.3d 1082, 1086 (7th

Cir. 1998). In that case, one defendant stated that an

“inner circle of persons” was responsible for the crimes

committed. Id. Two co-defendants objected to this state-

ment, arguing that it implicated them because of the use

of the phrase “inner circle.” Id. (citations omitted). We

rejected the defendants’ contention, noting that even if

we assumed that “the jury immediately concluded that . . .

the other defendants . . . belonged to the inner circle . . .

[n]evertheless, [the] statements do not ‘facially incriminate’

these defendants.” Id. (citations omitted). The same is true

in the case now at bar. The references here simply do

not directly or obviously incriminate these defendants.

Even if a Bruton error did exist here, we would find,

as we did in Hoover, that such error was harmless. Hoover,

16 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

246 F.3d at 1059-60. As discussed above, the evidence of

a narcotics conspiracy in this case was substantial. Given

this surplus of damning evidence, we find it implausible

that Stevenson’s statement, which only mentioned the

vague terms “Project Kings,” “Latin Kings,” and “Nation

Days,” had any substantial impact on the jury’s ultimate

conclusion.

D. Use of Minors

Defendants Rosario and Santana were charged with

and convicted of using minors to sell drugs in violation of

21 U.S.C. § 861(a)(1).3 Defendants Rosario, Santana, Stev-

enson, and Wilfredo Hernandez were charged with and

convicted of using minors to avoid apprehension for illegal

drug sales in violation of 21 U.S.C. § 861(a)(2).4 On appeal,

they challenge various aspects of these convictions.

3

“It shall be unlawful for any person at least eighteen years of

age to knowingly and intentionally—

(1) employ, hire, use, persuade, induce, entice, or coerce, a

person under eighteen years of age to violate any provision

of this subchapter or subchapter II of this chapter.”

21 U.S.C. § 861(a)(1) (2003).

4

“It shall be unlawful for any person at least eighteen years of

age to knowingly and intentionally—

(2) employ, hire, use, persuade, induce, entice, or coerce, a

person under eighteen years of age to assist in avoiding

detection or apprehension for any offense of this subchap-

ter or subchapter II of this chapter by any Federal, State,

or local law enforcement official.”

21 U.S.C. § 861(a)(2) (2003).

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1. Bill of Particulars

Before trial, the defendants filed a motion for a bill

of particulars that would have compelled the government

to identify the minors who were allegedly used. The dis-

trict court denied defendants’ motion, holding that the

indictment and the discovery materials provided sufficient

information from which the defendants could reasonably

anticipate the evidence that the government would intro-

duce at trial.

Whether to require a bill of particulars rests within the

sound discretion of the district court, and we will reverse

a district court’s decision to deny a bill of particulars

“only when the trial court clearly abuses its discretion.”

United States v. McAnderson, 914 F.2d 934, 946 (7th Cir.

1990) (quotations omitted). That is, unless it is clear that

“no reasonable person could take the view adopted by the

trial court,” we will not disturb the trial court’s decision.

Hughes, 970 F.2d at 232 (quotations omitted). Further, we

have stated that to overturn a denial of a bill of particulars,

a defendant must suffer “actual prejudice from the denial.”

McAnderson, 914 F.2d at 946.

In United States v. Kendall, we held that a bill of particu-

lars was unnecessary where the indictment sets forth

the elements of the charged offenses and provides suffi-

cient notice of the charges to enable the defendant to

prepare his defense. 665 F.2d 126, 134-35 (7th Cir. 1981).

We further held in United States v. Canino that a bill of

particulars is not required when the information a defen-

dant needs to prepare his defense is available through

“some other satisfactory form,” such as discovery. 949 F.2d

928, 949 (7th Cir. 1992) (citing 1 WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 129, at 436-38 (1982)). There

is little doubt here that the indictment set out the ele-

ments of the charged offenses. Defendants argue, however,

18 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

that without the names of the minors they could not

adequately prepare their defense.

We find that the district court did not abuse its discretion

in refusing to require a bill of particulars because the

names of the minors were available through discovery.

Among the relevant discovery material was a summary

of the testimony involving juvenile Jose Hernandez, ledgers

showing that specific juveniles were scheduled to pro-

vide security and sell drugs on certain Nation Days, and

transcripts of the audio tapes on which references to

“shorties” (a term that referred to minors) were made.5 In

light of these discovery materials, it was not an abuse of

discretion for the district court to hold that defendants

could reasonably anticipate the evidence the government

would produce at trial and adequately prepare their de-

fense based on this evidence.

Defendants also claim that their due process rights were

violated because they had no notice of who the minors

were. The argument is largely undeveloped and amounts

to little more than bald assertions. They rely on the fact

that during the jury instruction conference the govern-

ment sought to introduce birth certificates and other infor-

mation about particular minors, of whom the defendants

claim they received no notice. Defendants assert that they

were prejudiced by this surprise and their correspond-

ing lack of preparation to argue the point; however, the

argument is unavailing in light of the fact that the court

ruled in favor of the defendants and did not allow the

5

We note that the defendants’ entitlement to receive the names

of the minors referred to as “shorties” is tenuous; since the

government did not know the names of these minors either,

it would have been impossible to provide these names to defen-

dants.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 19

99-2598, 99-2763, 99-2983, 01-1690

information concerning these minors to be admitted.

Discovery provided defendants with notice of all of the

minors to whom the government actually referred at trial.

Therefore, we find no due process violation.

2. Sufficiency of Evidence on Counts 2 and 3

Defendants next contend that there was insufficient

evidence to convict them of using minors as charged in

Counts 2 and 3 of the indictment. We have noted before

that the hill one must climb in a sufficiency-of-evidence

claim is exceedingly steep. United States v. Frazier, 213

F.3d 409, 416 (7th Cir. 2000). We view all the evidence in

the light most favorable to the prosecution and reverse

the jury’s verdict only where the record is devoid of any

evidence, regardless of how it is weighed, from which a jury

could find the defendants guilty beyond a reasonable

doubt. United States v. Johnson, 26 F.3d 669, 684 (7th Cir.

1994).

As stated above, § 861(a) makes it a crime to “knowingly

and intentionally” (1) use a minor to violate the narcotics

laws or (2) use a minor to assist in avoiding detection of

a violation of the narcotics laws. 21 U.S.C. § 861(a) (2003).

Defendants concede that the government did not have

to prove that the defendants knew that the people they

were using were minors. See Frazier, 213 F.3d at 419

(holding that knowledge that the person used is under the

age of eighteen is not an element of the statute). Defen-

dants also do not argue, nor could they, that there was

insufficient evidence to show that minors were used as

part of this drug conspiracy.6 What defendants do argue

6

The evidence introduced included testimony by Juan Lorenzana,

who was a minor for at least part of the period of the conspiracy,

that on weekly Nation Days he both sold drugs and served as

(continued...)

20 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

is that while there may have been evidence that minors

were being used to sell drugs and avoid detection there is

no evidence that these defendants “knowingly and inten-

tionally” employed the minors in the drug conspiracy.

Basically, they contend that there is nothing which links

them to the use of minors; however, the evidence shows

otherwise.

The two defendants charged in Count 2—using a minor

to violate narcotics laws—were Rosario and Santana, the

number one and number two people in this gang. And

the four defendants charged in Count 3—using a minor to

avoid detection of narcotics laws violations—included not

only Rosario and Santana, but also Stevenson and Wilfredo

Hernandez, the leaders of the gang’s security compon-

ent detail. Given the nature of this drug conspiracy and

gang it is doubtful that the gang’s leaders were not “know-

ingly and intentionally” employing the people who worked

under them. We recognize, however, that in some situa-

tions people serving in a leadership capacity do not al-

ways know who works for them. See United States v.

McDonald, 877 F.2d 91, 93 (D.C. Cir. 1989) (“A reasonable

jury could not conclude beyond a reasonable doubt, from

McDonald’s role as supplier alone, that McDonald was

knowledgeable of all operations at the [drug] house and

therefore used Pinkney within the meaning of [section

861(a)].”). In defendants’ case, however, it was not mere-

ly the fact that they were the leaders of the drug conspiracy

that linked them to the minors. Rather, at trial, audio

tapes of these defendants at gang “demos”—meetings

6

(...continued)

a lookout for police. Also, both Juan Lorenzana and Juan

Hernandez testified that Jose Hernandez, a minor during the

whole period of the conspiracy, worked security and directed

drug customers on Nation Days.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 21

99-2598, 99-2763, 99-2983, 01-1690

where the gang leaders discussed the details of Nation

Days—were played into evidence. On one of these tapes,

Wilfredo Hernandez is heard directing “shorties” to go

into a courtyard and watch for police while the leaders

discussed business. On another tape, Stevenson is heard

complaining that shorties were not properly performing

their security duties. Finally, on the tape of another demo,

at which Santana and Wilfredo Hernandez were present,

the jury heard Rosario discussing the benefits of using

shorties in gang activities because juveniles faced more

lenient penalties if caught than did older members. These

tapes provide substantial evidence that these defendants

knowingly and intentionally used minors as charged in

Counts 2 and 3.

Defendants point to another tape on which Rosario is

heard ordering that no shorties were to be used on a

particular Nation Day. They argue that this tape shows

that the leaders of the gang condemned the use of minors

in drug transactions. But viewing this evidence in the

light most favorable to the government, as we must, the

jury could have rationally interpreted this statement as

showing that the leaders of the gang were in direct con-

trol of when and how minors were used, and that some-

times they chose to use minors and sometimes they

chose not to use them. This interpretation makes reason-

able sense of this tape in light of the other tapes and

testimony, which showed that the leaders did sometimes

direct minors to participate in the drug conspiracy.

In sum, given the comments made on the audio tapes by

these defendants about the use of minors, given the testi-

mony of the minors themselves about their activities in the

conspiracy, given the fact that these defendants were the

leaders of the conspiracy, and given the testimony of the

gang’s treasurer, Juan Hernandez, that the gang used

minors to sell drugs and avoid detection, we find that a

22 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

rational jury could have concluded that these defendants

were knowingly and actively employing minors in their

drug conspiracy. The sufficiency of evidence challenge fails.

3. Sufficiency of the Indictment on Count 3

Defendant Stevenson argues that his conviction on

Count 3 must be overturned because the indictment did

not allege any mens rea and thus fails to charge an of-

fense.7 Stevenson failed to raise this argument below;

therefore, we review it here only for plain error. Stevenson

attempts to avoid the plain error standard of review by

arguing that an indictment that negates an element of the

offense fails to confer subject-matter jurisdiction on the

district court; thus, we should consider the question of

jurisdiction de novo. Stevenson’s argument fails, however,

because 18 U0.S.C. § 3231 confers jurisdiction on district

courts to try charges framed by federal indictments, and, as

we have repeatedly held, “district judges always have

subject-matter jurisdiction based on any indictment pur-

porting to charge a violation of federal criminal law . . . so

errors in a non-frivolous indictment do not strip the dis-

trict court of jurisdiction under § 3231.” United States v.

Bjorkman, 270 F.3d 482, 490 (7th Cir. 2001). Consequently,

the issue is not jurisdictional and plain error applies. Plain-

error review of the sufficiency of an indictment is an

extremely difficult standard to overcome because we

will reverse only if the indictment “is so obviously defective

7

Count 3 of the indictment charged Stevenson with violation

of § 861, alleging that he “employed, hired, used, induced and

enticed” minors to assist in avoiding detection of violations of

the drugs laws. Section 861, however, contains the mens rea

“knowingly and intentionally,” which was omitted from the

indictment.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 23

99-2598, 99-2763, 99-2983, 01-1690

as not to charge the offense by any reasonable construc-

tion.” United States v. Wabaunsee, 528 F.2d 1, 2 (7th Cir.

1975) (quotations omitted).

In United States v. Smith, we decided the identical

issue that Stevenson raises here. 223 F.3d 554, 570-72

(7th Cir. 2000). In that case, Smith was charged with a

violation of § 861(a). Id. at 571. The indictment in that

case likewise failed to specify any mens rea element. Id.

And the defendant there raised the same issue that

Stevenson does here. We rejected the argument, holding

that the scienter requirement was present in the context

of the indictment in the words “employ,” “hire,” “use,” “in-

duce,” and “entice,” id. at 572,8 the same words used in the

indictment here. These words sufficiently convey the no-

tion of knowledge and intent, so it cannot be said that

this indictment fails to “charge the offense by any reason-

able instruction.” Wabaunsee, 528 F.2d at 2. Stevenson

urges us to overrule our decision in Smith, but offers us

no compelling reason to do so. Consequently, his suffi-

ciency-of-the-indictment challenge fails.

4. Jury Instructions on Count 3

In a related argument, Stevenson claims that the dis-

trict court gave a flawed jury instruction on Count 3 and

that this error warrants reversal of his conviction on the

count. In relevant part, the trial judge instructed the

jury that in order to find a defendant guilty on Count 3, it

8

In Smith we focused especially on the words “induce” and

“entice” as conveying the idea of intention, stating “it seems to us

impossible to . . . ‘induce’ or ‘entice’ a person to take those ac-

tions, without the necessary scienter. The ideas of purpose,

knowledge, and intent are inherent in those words.” Smith, 223

F.3d at 572.

24 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

had to find that “the defendant knowingly employed or

used a person or persons to assist in avoiding detection

and apprehension for the narcotics conspiracy.” (Tr. 3218-

19). As the government concedes, this instruction errone-

ously omitted the word “intentionally.” This error, at least

facially, gave the jury a lower mens rea requirement

than that required by § 861, which provides that defen-

dants must have acted “knowingly and intentionally.” 21

U.S.C. 861(a) (2003).

Obviously, the omission of part of the mens rea require-

ment of a statute is a serious flaw; however, because

no defendant objected to the jury instruction at the trial

level, we review the issue only for plain error. Again, under

the plain-error standard, we will reverse the district

court’s error only if it is clear or obvious and “seriously

affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Cusimano, 148 F.3d

824, 828 (7th Cir. 1998) (citing Olano, 507 U.S. at 736).

We note that Stevenson’s argument on the jury-instruc-

tion issue was not addressed in the Smith decision dis-

cussed above. In Smith, we specifically noted that “[p]er-

haps one might ‘employ,’ ‘hire,’ or ‘use’ a person to . . . assist

in avoiding detection without criminal intent . . . [but]

it seems impossible to take the next step, which is to

‘induce’ or ‘entice’ a person to take those actions, without

necessary scienter.” Smith, 223 F.3d at 572. In the jury

instruction here, neither “induce” nor “entice” were used;

rather the jury was told that Stevenson only had to “em-

ploy[ ]” or “use[ ]” minors to violate the statute. Also unlike

the jury instruction in Smith, however, the court here

did include the word “knowingly.” Thus, we are presented

with the issue of whether the terms “employ” or “use” along

with the mens rea term “knowingly” are sufficient to con-

vey the requisite criminal intent of the statute—a ques-

tion that we did not have to address in Smith. Id. at 572.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 25

99-2598, 99-2763, 99-2983, 01-1690

We find that the instruction given to the jury suffi-

ciently encapsulated the idea of purpose and intent to

avoid reversal under the plain error standard.9 Our read-

ing of the instruction leads us to the conclusion that if

Stevenson “knowingly” used kids in connection with the

drug offenses that this use almost had to have been inten-

tional. He knew these kids were minors and he knew that

he was using and employing them to avoid detection of

drug offenses. Put another way, it is difficult to see how

he could knowingly but unintentionally “use” and “employ”

a minor in these drug offenses. Consequently, we find

that where a jury instruction includes the mens rea term

“knowingly” but errantly omits the word “intentionally,”

that jury instruction is not so flawed as to work substan-

tial injustice, at least where the instruction also uses

the words “employ” and “use.”10

E. Apprendi Arguments

In Apprendi v. New Jersey, the Supreme Court held that

any fact, other than a prior conviction, “that increases the

penalty for a crime beyond the prescribed statutory maxi-

9

We note that this obviously would be a much closer question

under a lower standard of review, but we reserve deciding that

issue until another day.

10

Stevenson additionally claims that he is mentally retarded,

so the omission of the word “intentionally” produced an even

greater prejudicial effect because the jury was not given the

opportunity to consider whether he had the mental capacity to

even commit this crime. However, no evidence of Stevenson’s

retardation was ever presented to the jury. Further, we do not

find that his mental capacity affects our reasoning that the

instruction given sufficiently conveyed the notion of “knowledge

and intent.”

26 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

mum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. 466, 490 (2000). All defen-

dants, except Stevenson, argue that the sentences they

received violated Apprendi because the trial judge, rather

than the jury, determined the amount of drugs involved

for sentencing purposes. Only Santana raised the Apprendi

issue below, so his challenge is reviewed de novo; the rest

of the defendants’ arguments on this issue will be re-

viewed for plain error. We ultimately reject all defendants’

Apprendi claims, but we will address them in three sepa-

rate groups given the different standards of review and

the different reasons for affirming their sentences.

1. Santana’s Apprendi Claim

In the parts relevant to this case, the federal narcotics

statute first lists that the “unlawful acts” covered include

knowingly or intentionally possessing drugs with the in-

tent to distribute them. 21 U.S.C. § 841(a). Section (b) of

the statute then sets different maximum and minimum

penalties that vary primarily on the basis of the quantity

and type of the drugs involved. 21 U.S.C. § 841(b). When, as

here, crack cocaine is the drug of conviction, section (b)

provides for the following sentences:

Section 841(b)(1)(A): persons committing offenses in-

volving 50 or more grams of crack cocaine shall receive

a minimum of 10 years imprisonment and a maximum

of life; and if the defendant has a prior felony drug

conviction then the sentence shall not be less than 20

years or more than life.

Section 841(b)(1)(B): persons committing offenses

involving 5 or more grams of crack cocaine shall receive

a minimum of 5 years and not more than 40 years

imprisonment; and if the defendant has a prior fel-

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 27

99-2598, 99-2763, 99-2983, 01-1690

ony drug conviction the sentence shall not be less

than 10 years or more than life.

Section 841(b)(1)(C): persons committing offenses

involving an undetermined amount of crack cocaine

shall not receive more than 20 years imprisonment;

and if the defendant has a prior felony drug convic-

tion the sentence shall not exceed 30 years.

21 U.S.C. § 841 (2000).

The jury instructions given in this case did not re-

quire the jury to find a drug quantity; thus, the jury

convicted Santana, and the other defendants, of conspir-

ing to possess and distribute an unspecified amount of

crack cocaine. At Santana’s sentencing, the judge deter-

mined by a preponderance of the evidence that Santana

was responsible for 144 grams of crack cocaine, which

corresponded to a sentencing-guideline range between

seventeen and one-half years and twenty-two years (210-

262 months). The judge then sentenced Santana to 20

years, relying on § 841(b)(1)(A)’s mandatory minimum of

20 years for defendants, like Santana, with prior felony

drug convictions who commit offenses involving more

than 50 grams of crack cocaine. Santana argues that this

sentence violates Apprendi because it was the judge,

rather than the jury, that determined the quantity of

drugs involved and because the judge’s determination led

to the imposition of a mandatory minimum that was not

warranted by the findings of the jury. We reject Santana’s

argument because we find it to be precluded by cases in

this Circuit and by recent Supreme Court precedent.

The Apprendi decision makes clear that its application

does not extend to situations where a defendant’s sen-

tence does not exceed a prescribed statutory maximum.

530 U.S. at 487 n.13 (noting that it was not overruling

McMillan v. Pennsylvania, 477 U.S. 79 (1986), because

28 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

the Apprendi decision did not impact “cases that do not

involve the imposition of a sentence more severe than the

statutory maximum for the offense established by the

jury’s verdict”); see also United States v. Williams, 238 F.3d

871, 877 (7th Cir. 2001) (“[T]he rule of Apprendi is not

implicated when the actual sentence imposed is less

severe than the statutory maximum.”). We have repeatedly

stated that in drug cases, Apprendi has no application

where a drug dealer is given a sentence at or below the

maximum provided in § 841(b)(1)(C).11 This is the case

because a conviction under § 841(b)(1)(C) does not require

any drug quantity to be found by the jury. Santana had

a prior felony drug conviction so the maximum sentence

he could receive under § 841(b)(1)(C) was 30 years impris-

onment. He received a sentence of only 20 years; therefore,

there was no Apprendi violation.

Santana attempts to avoid this conclusion by arguing

that Apprendi was violated in his case because he was

sentenced to a mandatory minimum under § 841(b)(1)(A).

11

For just of few examples of cases where we have so held see

United States v. Collins, 272 F.3d 984, 987 (7th Cir. 2001)

(“Apprendi is violated here only if Mr. Collins’ sentence exceeds

the statutory maximum permitted by the evidence proved be-

yond a reasonable doubt before the jury and by his prior convic-

tion.”); United States v. Duvall, 272 F.3d 825, 830 (7th Cir. 2001)

(“Duvall’s 30-year sentence does not exceed the maximum al-

lowed under § 841(b)(1)(C) when there is a prior felony drug

conviction, so there is no violation of Apprendi.”); United States

v. Brough, 243 F.3d 1078, 1079-80 (7th Cir. 2001) (“[I]f (for

example) [the offense involves] cocaine or heroin, then any pen-

alty up to 20 years is lawful even if the jury does not find a par-

ticular quantity, because 20 years is the maximum under

§ 841(b)(1)(C) for unlawfully distributing any detectable quantity

of any Schedule I or II controlled substance.”).

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 29

99-2598, 99-2763, 99-2983, 01-1690

According to Santana, Apprendi should apply to mandatory

minimums, meaning that a defendant could not be sen-

tenced to a mandatory minimum unless the facts trigger-

ing that minimum were proved to the jury beyond a rea-

sonable doubt.

In United States v. Williams, we addressed the exact

argument made by Santana. 238 F.3d 871 (7th Cir. 2001).

There, defendant Williams was convicted of possessing

crack cocaine with intent to distribute. Id. at 873. Just as

in Santana’s case, the judge, rather than the jury, de-

termined the amount of drugs involved (60.4 grams) and

sentenced Williams to the corresponding mandatory

minimum under § 841(b)(1)(A)—ten years in that case

because Williams had no prior conviction. Id. at 874. On

appeal, Williams argued that Apprendi had been violated

because the court relied on § 841(b)(1)(A)’s mandatory

minimum without submitting the issue of drug quantity

to the jury. We held that Apprendi did not apply be-

cause regardless of the district court’s application of a

mandatory minimum, Williams was still sentenced to

a term below the statutory maximum provided in

§ 841(b)(1)(C). Id. at 877. We have no inclination to over-

rule Williams today, especially in light of the Supreme

Court’s recent decision in Harris v. United States, 122 S. Ct.

2406 (2002).

In Harris, the Supreme Court held that Apprendi did

not require facts which might increase the mandatory

minimum sentence to be proven to a jury beyond a rea-

sonable doubt. Id. at 2420. Santana attempts to distin-

guish Harris by arguing that it involved 18 U.S.C. § 924

(use of a firearm in relation to crime of violence or drug

30 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

trafficking),12 rather than the federal narcotics statute at

issue here. Id. at 2410-11. Santana notes that § 924 con-

tains only mandatory minimums and does not have manda-

tory maximums, whereas 21 U.S.C. § 841(b)(1) has both

minimums and maximums. According to Santana, the

distinction is important because under § 841, the single

fact which determines the maximums also fixes the statu-

tory minimums; consequently, when a fact is determined

that raises the mandatory minimum it also raises the

maximum penalty to which a defendant is exposed. Thus,

in Santana’s view, that fact must be submitted to the

jury. While there is some logic to the argument, we do

not find this reasoning persuasive nor do we see that

Harris necessarily allows such a conclusion. Santana nev-

er addresses the fact that his actual sentence never

came within Apprendi’s stated confines—that is, his

sentence did not exceed the maximum sentence allow-

able under § 841(b)(1)(C). We believe that the holding

in Harris—that Apprendi does not apply to the manda-

tory minimums of 18 U.S.C. § 924(c)(1)(A)—only reinforces

the basic principle that “Apprendi is violated . . . only if [a

12

18 U.S.C. § 924 states, in relevant part:

[A]ny person who, during and in relation to any crime of

violence or drug trafficking crime . . . uses or carries a

firearm, or who, in furtherance of any such crime, possesses

a firearm, shall, in addition to the punishment provided

for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less

than 5 years;

(ii) if the firearm is brandished, be sentenced to a term

of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term

of imprisonment of not less than 10 years.

18 U.S.C. §924(c)(1)(A).

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 31

99-2598, 99-2763, 99-2983, 01-1690

defendant’s] sentence exceeds the statutory maximum

permitted by the evidence proved beyond a reasonable

doubt before the jury and by his prior conviction.” Collins,

272 F.3d at 987. We reiterate that here, the evidence

proved beyond a reasonable doubt to the jury was that

Santana possessed and intended to distribute an unspeci-

fied amount of crack cocaine. The statutory maximum set

by § 841(b)(1)(C) for this crime is 30 years when the

defendant, like Santana, has a prior felony drug conviction.

Santana was sentenced to only 20 years; thus, Apprendi

is inapplicable.

2. Apprendi Claims of Other Defendants Except

Rosario

All the remaining defendants, except Rosario, were

sentenced to prison terms at or below the statutory maxi-

mum set in 841(b)(1)(C). For some of these defendants the

maximum under § 841 (b)(1)(C) was 20 years and for

others, like Wilfredo Hernandez and Sandy Garvin, the

maximum was 30 years because they had prior felony

drug convictions. All the defendants, however, received

sentences below the maximum applicable to them. Since,

as discussed above, there was no Apprendi violation in

this situation even under de novo review, we need not

further discuss their claims, which we review only for

plain error.

3. Rosario’s Apprendi Claim

Rosario was convicted on Count 1 (conspiracy to violate

the drug laws), Count 2 (use of minors to distribute narcot-

ics), Count 3 (use of minors to avoid detection of drug law

violations), and Count 20 (distribution of narcotics). Based

on the court’s determination of the quantity of drugs for

32 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

which Rosario was responsible, the district court found

that the applicable sentencing guideline range was 30

years (360 months) to life. Rosario was given a prison term

of 30 years, which was arrived at by imposing 30-year

sentences each for Counts 1, 2, and 3, and a 20-year

sentence on Count 20—all sentences to run concurrently.

As discussed above, since drug quantity was not deter-

mined by the jury, the applicable statutory maximum

comes from 841(b)(1)(C), which for Rosario provides a

maximum of 20 years. Facially this creates an Apprendi

error, but ultimately we reject Rosario’s challenge for

the following reasons.

Rosario did not raise his Apprendi challenge below so

we will overturn his sentence only if we find plain error.

We have previously rejected arguments identical to

Rosario’s. See, e.g., United States v. Martinez, 289 F.3d

1023, 1027 (7th Cir. 2002); United States v. Knox, 287 F.3d

667, 669 (7th Cir. 2002); United States v. Brough, 243 F.3d

1078, 1080-81 (7th Cir. 2001); United States v. Parolin, 239

F.3d 922, 929-30 (7th Cir. 2001). In each case our reason-

ing has been the same: while the sentence the defendant

received exceeded the statutory maximum for one or

more of the counts, it did not extend beyond the sentence

that the trial court could have imposed if it had stacked

the sentences of all the counts consecutively as it must

in certain situations under the sentencing guidelines. See

U.S.S.G. § 5G1.2(d) (2002) (discussed below). Under such

circumstances, when consecutive sentences provide an

alternative means of achieving the same sentence with-

out exceeding the maximum for any one count, Apprendi

is not violated.

Application of this principle to Rosario’s case will illus-

trate the point. As noted above, Rosario was convicted

on four separate counts. The judge sentenced him to

three 30-year sentences and one 20-year sentence, and

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 33

99-2598, 99-2763, 99-2983, 01-1690

the sentences were to run concurrently. Thus, the sen-

tence fell within the guideline range of 30 years (360

months) to life, the applicable range based on the drug

quantity involved as determined by the judge. The sen-

tence of 30 years on some of the counts, however, vio-

lates Apprendi because the maximum penalty applicable

to Rosario under the statute was 20 years. Our review

for plain error, however, means we will reverse the sen-

tence only if the error “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings,”

Olano, 507 U.S. at 736 (citation omitted)—that is, only

if the error prejudiced Rosario by imposing on him a

sentence greater than he would otherwise have received.13

See United States v. Angle, 254 F.3d 514, 518-19 (4th Cir.

2001) (en banc).

13

The standard of review is at least one of the factors that

makes this case distinguishable from language in Apprendi that

arguably would require us to reach the opposite conclusion. In

Apprendi, the State of New Jersey argued that Apprendi’s 12-year

sentence, when there was a 10-year maximum, did not violate

the due process clause because the State could have achieved

the same result by stacking sentences from other counts. The

Supreme Court rejected the argument, however, stating that

“[t]he constitutional question . . . is whether the 12-year sentence

imposed on count 18 was permissible, given that it was above

the 10-year maximum . . . . The sentences on counts 3 and 22 have

no . . . relevance to our disposition.” Apprendi, 530 U.S. at 474.

The important distinction to be made with our case, though, is

that in Apprendi the State of New Jersey was arguing that there

was no constitutional error in the sentence; whereas, we have

already determined that there was error. In the case now be-

fore us, we are simply trying to determine if that error prej-

udiced Rosario, so as to require reversal under the plain error

standard of review. See United States v. Angle, 254 F.3d 514, 519

(4th Cir. 2001) (en banc) (distinguishing Apprendi on the same

basis); United States v. Page, 232 F.3d 536, 544-45 (6th Cir. 2000)

(same).

34 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

Here there is no prejudice because Rosario could have

received the same prison term through stacking the sen-

tences in a way that avoided violation of Apprendi. In fact,

sentencing guideline § 5G1.2(d) provides that where, as

here, multiple counts of conviction are involved “the

sentence imposed on one or more of the other counts shall

run consecutively, but only to the extent necessary to

produce a combined sentence equal to the total punish-

ment.” U.S.S.G. § 5G1.2(d) (emphasis added).14 The dis-

14

We noted in Knox that “the courts of appeals do not agree

whether, in the wake of Apprendi, U.S.S.G. § 5G1.2(d) still

compels a judge to use consecutive sentences when necessary

to construct a term within the Guideline range . . . [but] every

court of appeals believes that consecutive sentences are lawful

if the district judge chooses to impose them.” 287 F.3d at 669

(citations omitted). The language of § 5G1.2(d) is cast in terms

of the mandatory rather than the discretionary and the major-

ity of circuits that have decided the issue have found that

§ 5G1.2(d) is mandatory. See United States v. Outen, 286 F.3d 622,

640 n.19 (2d Cir. 2002) (“We have held that the application of

§ 5G1.2 is largely mandatory.”); United States v. Diaz, 296 F.3d

680, 684 (8th Cir. 2002) (en banc) (Ҥ 5G1.2 mandates consecu-

tive sentences in those cases in which the total punishment

exceeds the statutory maximum for any one count.”); United

States v. Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (en banc)

(“[I]f the Guidelines calculation exceeds the statutory maximum

for any count in a case involving multiple counts, then the

mandatory provisions of § 5G1.2(d) come into play regarding

the question of consecutive sentences.”); United States v. Angle,

254 F.3d 514, 518 (4th Cir. 2001) (en banc) (“[T]he district court

must impose consecutive terms of imprisonment to the extent

necessary to achieve the total punishment.”) (emphasis added);

United States v. Price, 265 F.3d 1097, 1109 (10th Cir. 2001) (“This

court agrees with those circuits which have concluded that

§ 5G1.2(d) is a mandatory provision.”). But see United States v.

(continued...)

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 35

99-2598, 99-2763, 99-2983, 01-1690

trict judge in this case found that the specified guideline

range applicable to Rosario was 30 years to life. In order

to comply with § 5G1.2(d), the district court would have

to reach the same 30-year prison term by sentencing

Rosario to 20 years on one or more of the counts with a

consecutive 10-year sentence on one or more of the

other counts. Therefore, we find that the district court’s

error did not seriously affect the fairness of the proceed-

ing. See Martinez, 289 F.3d at 1027. Several other circuits

have considered the same argument that Rosario makes

today and have held, as we have, that there is no prejudice,

and therefore no need to remand, when the application of

consecutive sentences under § 5G1.2(d) would result in

the same sentence that the defendant already received.15

14

(...continued)

Velasquez, 304 F.3d 237, 242-43 (3d Cir. 2002) (stating that 18

U.S.C. § 3584 gives district courts discretion to impose consecu-

tive or concurrent sentences); United States v. Vasquez-Zamora,

253 F.3d 211, 214 (5th Cir. 2001) (holding that the district

court had discretion under 5G1.2(d) to impose a consecutive or

concurrent sentence).

15

See, e.g., Outen, 286 F.3d at 640 (“[W]here a defendant is con-

victed on multiple counts, any error in exceeding the statutory

maximum on a single count is harmless if the application of

U.S.S.G. § 5G1.2 would require the sentence on one or more of

the remaining counts to run consecutively so that defendant’s

total term of imprisonment remains unchanged.”); Diaz, 296 F.3d

at 684 (“Because § 5G1.2(d) mandates consecutive sentences

in those cases in which the total punishment exceeds the stat-

utory maximum for any one count and the district court’s calcula-

tion of total punishment is not affected by an Apprendi error,

remand to allow the district court to consider whether to impose

consecutive or concurrent sentences would be an idle act.”);

Buckland, 289 F.3d at 572 (“[E]ven if [the defendant] had been

(continued...)

36 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

Rosario’s Apprendi argument is rejected.

F. Abraham Hernandez’s Acceptance of Responsi-

bility

Abraham Hernandez argues that the district court

improperly denied his request for a two-level reduction

for acceptance of responsibility under § 3E1.1 of the sen-

tencing guidelines. To prevail on this point below, the

burden was on Hernandez to “clearly demonstrate” that he

was entitled to the reduction by a preponderance of the

evidence. United States v. Muhammad, 120 F.3d 688, 701

(7th Cir. 1997) (citing U.S.S.G. § 3E1.1(a)). On appeal, we

will reverse a district court’s refusal to grant an acceptance-

of-responsibility reduction only if we find that decision to

be clearly erroneous. Id. (citations omitted).

15

(...continued)

indicted only under 21 U.S.C. § 841(b)(1)(C), the trial judge, using

the Guidelines and § 5G1.2(d), would have been required to

sentence him to 324 months made up of consecutive sentences,

each of which would not have exceeded 20 years.”); Angle, 254

F.3d at 518 (“Had the district court been aware when it sentenced

[the defendant] that the maximum penalty for his drug trafficking

conviction was 20 years, § 5G1.2(d) would have obligated it to . . .

order[ ] [the sentences] to be served consecutively.”); Price, 265

F.3d at 1109 (noting that because 5G1.2 is mandatory, the district

court would be forced to impose the same sentence already

imposed, so there was no prejudice by the Apprendi error); United

States v. Smith, 240 F.3d 927, 930 (11th Cir. 2001) (“When the

ultimate sentence does not exceed the aggregate statutory

maximum for multiple convictions, no effect on substantial rights

has occurred that must be remedied.”); Page, 232 F.3d at 545

(holding that there was no prejudice because if § 5G1.2(d) was

properly applied then the defendants’ “sentences would have been

the same as those which were imposed”).

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 37

99-2598, 99-2763, 99-2983, 01-1690

The commentary to guideline § 3E1.1 makes clear that

the adjustment for acceptance of responsibility “is not

intended to apply to a defendant who puts the government

to its burden of proof at trial by denying the essential

factual elements of guilt, is convicted, and only then admits

guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt. n.2.

Abraham Hernandez did not plead guilty in this case;

rather he forced the government to go to trial to establish

his guilt. There is some evidence that he entered into

plea negotiations with the government about pleading

guilty to Count 1—the conspiracy charge—but nothing

came of these negotiations because Abraham Hernandez

would not accept the government’s conditions on the plea.

Thus, they went to trial, where Abraham maintained that

he was just “a 20-year-old kid who started hanging

around the Lathrop Homes neighborhood, was at the wrong

place at the wrong time . . . [and was not] a conspirator.”

(Tr. 66.) The government was forced to disprove this

claim, and it did so.

The commentary to § 3E1.1 also provides that in “rare

situations” a defendant may still receive the reduction

even though he goes to trial, “for example, where a defen-

dant goes to trial to assert and preserve issues that do

not relate to factual guilt.” U.S.S.G. § 3E1.1 cmt. n.2.

The problem for Abraham Hernandez is that he went to

trial to deny that he was part of the conspiracy on a theory

of defense that rested solely on the factual claim that

he was just a 20-year old kid in the wrong place at the

wrong time. He has not provided us with any reason to

believe that he went to trial for any other reason than to

deny his factual guilt. His appeal from the district

court’s refusal to grant him a two-point reduction is there-

fore denied.

38 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

G. Sufficiency of Garvin’s Section 851 Notice

Sandy Garvin was convicted on four substantive distribu-

tion counts, but he was acquitted of the conspiracy charge.

The sentencing judge found that Garvin was responsible

for only 0.47 grams of cocaine and thus sentenced him

under § 841(b)(1)(C). Based on his prior felony drug con-

viction Garvin received a sentence of 22 years imprison-

ment. Garvin claims on appeal that his rights under 21

U.S.C. § 851 were violated because he was not given prop-

er notice that the government would seek an enhance-

ment based on his prior convictions. He did not raise

this argument below; thus, we review it under the plain

error standard.16 As stated above, under this standard

Garvin must show that there was a plain error that af-

fected his substantial rights. If Garvin can make this

showing, then it is within our discretion to reverse if we

find that the error “seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.” Olano, 507

U.S. at 732 (citations omitted).

Section 851 provides in relevant part:

No person who stands convicted of an offense under

this part [21 U.S.C. § 841, et seq.] shall be sentenced

to increased punishment 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

16

Garvin argues that the requirements of § 851 are jurisdic-

tional in nature and thus cannot be waived. Unrecognized by

Garvin, however, is that over a month before we heard oral

argument in this case we issued our opinion in United States v.

Ceballos, 302 F.3d 679 (7th Cir. 2002). In Ceballos, we held

that § 851 is not jurisdictional and expressly overruled our prior

cases to the contrary. Id. at 692.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 39

99-2598, 99-2763, 99-2983, 01-1690

such information on the person or counsel for the

person) stating in writing the previous convictions to

be relied upon.

21 U.S.C. § 851(a)(1). The Government did file a § 851

notice before trial, which informed Garvin that if he

were convicted the government would seek to have his

sentence enhanced based on two prior drug convictions. The

problem with this notice, Garvin asserts, was that it

cited 21 U.S.C. § 841(b)(1)(A) as the statute under which

an enhanced penalty of life imprisonment would be

sought. Whereas, because only 0.47 grams of crack were

attributed to Garvin, the trial judge sentenced him under

§ 841(b)(1)(C), which only provided for an enhanced

prior conviction penalty of 30 years. Garvin claims that he

was misled by the § 851 notice into thinking that the

government would only seek an enhancement if he were

held responsible for 50 or more grams of crack cocaine,

the requisite amount for § 841(b)(1)(A) to apply.

We begin by noting that the language of § 851(a)(1) does

not require that the government set forth which enhanced

penalty it will seek in cases where there is more than

one available. The statute focuses rather on the disclo-

sure of those prior convictions on which the govern-

ment intends to rely. The government’s § 851 notice here

stated precisely which convictions it intended to use for

enhancement. Thus, it is not entirely clear that there

has been a § 851 violation at all. We however, recognize

that some defendants could be misled by citation to a

different statute and the subsequent use of a different

enhancement. But even assuming there was plain error

here, we would not exercise our discretion to reverse

because we do not perceive that there was any injustice

done to Garvin. The government informed him that be-

cause he had two prior convictions, it would seek a penalty

of life imprisonment; thus, he was on notice of the severe

40 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

consequences he faced if convicted. We do not see any

prejudice to Garvin by the government notifying him of

a greater enhanced penalty than the one it actually sought.

The idea that Garvin was misled into thinking that the

government would seek an enhancement to a life sen-

tence if he was convicted for 50 grams of crack, but that

it would not seek to enhance to 30 years if he was con-

victed of a lesser amount is not plausible. Therefore, we

find that he has not satisfied his burden under the plain

error standard of review.

H. Determination of Garvin’s Status as a Career

Offender

Garvin next argues that the district court erroneously

classified him as a career offender under U.S.S.G. § 4B1.1.

Again, Garvin did not raise this issue below, so our re-

view here is limited to plain error. United States v. Goudy,

78 F.3d 309, 315 (7th Cir. 1996).

To receive the classification of “career offender” a defen-

dant must, among other things, have “at least two prior

felony convictions of either a crime of violence or a con-

trolled substance offense.” U.S.S.G. § 4B1.1. The district

court based its determination that Garvin was a career

offender on two prior drug convictions: the first, a 1989

state conviction for delivery of cocaine and the second, a

1993 state conviction also for delivery of cocaine. Garvin

maintains that the court should not have considered the

1993 conviction because it was part of, or related to, the

instant offense.

In United States v. Garecht, we held that under § 4B1.2,

if a prior conviction was related to the instant offense then

that prior conviction could not be used to elevate a defen-

dant to career offender status. 183 F.3d 671, 675 (7th Cir.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 41

99-2598, 99-2763, 99-2983, 01-1690

1999).17 To determine whether the prior conviction is

related to the instant offense, the guideline commentary

directs courts to U.S.S.G. §1B1.3. See U.S.S.G § 4A1.2 cmt.

n.1 (“Conduct that is part of the instant offense means

conduct that is relevant conduct to the instant offense

under the provisions of § 1B1.3 (Relevant Conduct).”).

“Under U.S.S.G. § 1B1.3, a criminal offense constitutes

relevant conduct to another offense if the two offenses

are part of a common scheme or plan, connected by at

least one common factor (for example, a common victim

or purpose).” Garecht, 183 F.3d at 674 (citing U.S.S.G.

§ 1B1.3 cmt. n.9).

Garvin argues that his 1993 conviction is related to the

instant case because that conviction involved the sale

of drugs in the same geographic area, involved the same

Latin Kings gang, and took place less than a year before

the conspiracy charged in this case began. Garvin over-

looks, however, that he was not convicted of conspiracy

here; rather, he was convicted only of four distribution

counts that occurred in 1996. Thus, his attempt to estab-

lish a close relation based on time frame clearly does

not work. More importantly though, the commentary to

§ 1B1.3 provides an example situation of where courts

should find that two offenses are not related that is al-

most identical to Garvin’s situation:

Examples: (1) The defendant was convicted for the sale

of cocaine and sentenced to state prison. Immediately,

17

There was dispute between the majority and dissent in Garecht

over whether § 4B1.2 required that the prior convictions be

unrelated to the instant offense (majority position) or whether

§ 4B1.2 only required that the two prior convictions be unrelated

to each other. Because Garvin’s argument is rejected under

either interpretation we simply accept, without reconsideration,

the majority’s position in Garecht on this issue.

42 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

upon release from prison, he again sold cocaine to the

same person, using the same accomplices and modus

operandi. The instant federal offense (the offense of

conviction) charges this latter sale. In this example,

the offense conduct relevant to the state prison sen-

tence is considered as prior criminal history, not as

part of the same course of conduct or common scheme

or plan as the offense of conviction.

U.S.S.G. § 1B1.3 cmt. n.8; see also Garecht, 183 F.3d at 674-

75 (distinguishing the facts in that case from the above

cited example and finding that the defendant’s situation

there was more like the second example given in Applica-

tion Note 8). As even Garvin admits, this example is

nearly indistinguishable from his case. In 1993, he was

convicted in state court for the delivery of cocaine and

sentenced to imprisonment for the offense. In 1996, he

again sold drugs, and this violation led to the instant

federal offense—precisely the situation that the guide-

lines tell us does not qualify as a related offense. Therefore,

we find no plain error in the district court’s reliance

on the 1993 conviction to establish Garvin’s status as a

career offender.

I. District Court’s Refusal to Grant Garvin a Down-

ward Departure

Garvin finally argues that the district court improperly

refused to grant him a downward departure from his

sentence. It is clear that we lack jurisdiction to review

a sentencing court’s refusal to give a downward depar-

ture, unless it is established that the sentencing court

errantly believed that it lacked the legal authority to grant

a downward departure. United States v. Hegge, 196 F.3d

772, 774 (7th Cir. 1999) (citations omitted). Thus, the only

issues we must decide are whether the district court

had the authority to depart and if it did, whether it knew

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 43

99-2598, 99-2763, 99-2983, 01-1690

that it had such authority. As to the first issue, the gov-

ernment does not dispute that the district court had the

authority to depart downward from the sentencing

range set out in the Guidelines; thus, we accept that if

the factual circumstances warranted it, the district court

could have departed.18 As to the second issue, “[w]e presume

that the district court knew that it had authority to de-

part and simply exercised its discretion not to do so.

Defendant bears the burden of convincing us otherwise.”

United States v. Larkins, 83 F.3d 162, 168 (7th Cir. 1996).

In attempting to meet this burden, Garvin cites to four

instances during the sentencing hearing where the dis-

trict court appears to express doubt as to whether it

could depart. The first two came on June 1st:

“With respect to your motion for a downward departure,

I looked at the cases. It’s actually not so clear to me

that there is any circumstance in which the Seventh

Circuit will approve a motion for a downward depar-

ture.” (6/1/99 Tr. 12.)

“I don’t want you to be hopeful. I don’t think that there

is a legal basis for [departing].” (6/1/99 Tr. 21.)

And the second two both came three days later on June 4th:

“I don’t think that I can give [a downward departure].

You know, I mean, I think 262 months is, it is certainly

a terribly long sentence.” (6/4/99 Tr. 4.)

18

U.S.S.G. § 5K2.0 allows a district court to depart if “the court

finds that there exists an aggravating or mitigating circum-

stance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating

the guidelines that should result in a sentence different from

that described.” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b));

see also United States v. Larkins, 83 F.3d 162, 168 (7th Cir. 1996).

44 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

“I am looking at it, is he out of the heartland of what

the guidelines say when I could conceivably give a

departure . . . if any are really permitted in this circuit,

which I question.” (6/4/99 Tr. 6.)

We agree with Garvin that these statements alone are

cause for some concern. A closer analysis of the context

of the statements and the overall sentencing hearing,

however, reveals that the district court did go through

the proper steps to determine whether, based on the facts

of Garvin’s case, she should exercise her discretion to

depart.

In Koon v. United States, the Supreme Court determined

that a sentencing judge considering a motion for down-

ward departure should review the case for factors suffi-

ciently unusual to take the case out of the Guidelines’

“heartland.” 518 U.S. 81, 92-95 (1996). We have held that

under Koon, factors that might take a case out of the

heartland fall into four categories: (1) forbidden factors

(such as race, sex, national origin, creed, religion, socio-

economic status, or drug addiction), which can never

be considered as a basis for departure, (2) discouraged

factors (such as age or education), which can be considered

relevant only in “exceptional cases,” (3) encouraged fac-

tors (such as defendant’s role in the offense), which are

“explicitly contemplated as grounds for departure,” and

(4) unmentioned factors. United States v. Sewell, 159 F.3d

275, 279 (7th Cir. 1998).

In the case now before us, the district court and the

attorneys engaged in a lengthy discussion about whether

Garvin’s situation fell outside the “heartland” and what

factors could be considered in making such a determina-

tion. We review this discussion at length because it is

only in analyzing it in full that we can determine if the

district court knew that it could depart. The first discus-

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 45

99-2598, 99-2763, 99-2983, 01-1690

sion about departure occurred near the beginning of the

two day hearing. Here, the judge made the first state-

ment that Garvin cites as support for his claim. This

statement does appear to reveal some indecision on the

part of the judge about her authority to depart, but Garvin

does not cite the immediately following statement where

the judge noted that, in deciding whether she should

depart, she could not consider the fact that Garvin was a

drug addict as a factor in the departure determination—

“[t]hat’s a forbidden basis.” This statement reveals that

the judge was apparently aware of our decision in Sewell

and that, at least, she was going to work under the as-

sumption that she could depart.

The second statement (“I don’t think there is a legal

basis [to depart]”), when read in context, is simply the

judge’s reiteration that drug addiction is not a factor

which would allow her to depart. That this is what the

judge is talking about is seen in Garvin’s attorney’s re-

sponse: “Well, Judge, addiction is not (a legal basis) but

that was only one element.” (6/1/99 Tr. 21.) After this, the

defense attorney, the court, and the government discuss

the fact that in Sewell, we held that a defendant’s partic-

ipation in the offense is an encouraged factor to consider

in departing. (Id. at Tr. 22-25.) In response to the defen-

dant’s argument that Garvin’s participation in the conspir-

acy was minimal (and thus “not within the heartland”

(id. at Tr. 22)), the district court noted that Garvin was

not convicted of conspiracy; therefore, the proper inquiry

was his role in the four individual distributions, not his

role in the conspiracy. (Id. at Tr. 22.) Ultimately, the

hearing on June 1 concluded without the judge making

a decision on the matter. She stated that she needed

more time because originally she had not closely analyzed

the cases submitted by the government because after

reviewing the defense’s cases she “didn’t think there was

46 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

a sufficient [basis] for a departure.” (Id. at Tr. 27.) Thus,

at the conclusion of the hearing on June 1, it is apparent

that the judge believed, or at least assumed, she could

depart but did not see a factual basis for doing so.

The June 4 hearing began with the judge stating that

after reviewing the evidence and the relevant cases, she

had not changed her mind: “I don’t find any, having looked

at all of that, I don’t find any basis for changing the guide-

line range.” (6/4/99 Tr. 2.) After discussion of some other

topics, the defense attorney returned to the issue of de-

parture, to which the court responded with the third

statement that Garvin cites for support (“I don’t think I can

give it. You know, I mean, I think 262 months is . . . a

terribly long sentence”). This statement, however, when

read in context, actually reveals that the judge did believe

that she could depart but that she did not think there

was a basis to do so here. Immediately after the state-

ment, the judge reasons that she cannot give a departure

because the fact that “he’s a drug addict . . . is something

I actually can’t take into account in terms of departure.”

(6/4/99 Tr. 4.) Garvin’s attorney then raised the argument

again that Garvin played a small role in this conspiracy.

The judge again responded by noting “[t]hat would be

perfectly appropriate if we were talking about putting his

role in terms of something as a whole. But all he’s be-

ing sentenced on are four separate sales. . . .” (Id. at Tr. 5.)

Later in the hearing, the judge stated that in making

her determination of whether to depart she was consider-

ing whether “he [is] out of the heartland of what the

guidelines say when I could conceivably give a depar-

ture . . . if any are really permitted in this circuit, which

I question.” (Id. at Tr. 6.) This statement does indeed re-

veal that the judge may not have been entirely clear that

she could depart, but it also reveals that she was assuming

that she could—why else would she need to go through the

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 47

99-2598, 99-2763, 99-2983, 01-1690

heartland analysis? Ultimately, the judge determined

that Garvin’s case was not outside the heartland, stating,

“I mean, he was walking down the street and selling these

drugs with kids running around right in front of him . . . .

And so the kids will grow up and do the same thing be-

cause . . . that is what people that they look up to are

doing. So am I sure it’s out of the heartland? No, I don’t

know that it is. But go on if you have more to say.” (Id. at

Tr. 8.) To this Garvin’s attorney responded that “[i]f Your

Honor has made up your mind that it’s not out of

the heartland, I am not going to belabor the point with

this Court.” (Id.) At this point, the judge moved on to

another issue. The only logical interpretation then is

that the judge had considered the arguments urging her

to depart and had determined that Garvin’s case was not

out of the heartland.

Therefore, even though we are somewhat troubled by

the district court’s musings on the record that she was

not entirely sure she could depart, the fact that she, at

the very least, assumed that she could depart and con-

ducted the “heartland” analysis, leads us to the conclu-

sion that a remand is not appropriate here. Further,

given that the district court already conducted the heart-

land analysis, it is not clear what would be gained even if

we were to remand—i.e., the district court has already

decided that departure is not warranted, and on remand

we would simply be telling the court to conduct the

same analysis again. Garvin’s challenge is therefore re-

jected.

J. Rosario’s Non-Apprendi Claims

1. Agent Schulte’s Alleged Signals and Gestures at

Trial

Rosario claims that during trial FBI Agent Schulte was

signaling and gesturing to witnesses on the stand. He

48 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

argues that because the jurors may have seen this and

may have been influenced by it, he should be given a

new trial. Although some of the defense attorneys briefly

discussed the issue with the court at trial, no formal

objection was ever made, and neither Rosario nor his

attorney raised the issue before this appeal. Therefore,

again, our review is only for plain error, and we note

that Rosario’s burden is particularly high here because

“[t]he district court will always be in a better position

than the appellate judges to assess the probable reactions

of jurors in a case over which he [or she] has presided.”

United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)

(quoting United States v. Bruscino, 687 F.2d 938, 941 (7th

Cir. 1982) (en banc)).

Rosario provides no evidence of any wrongdoing nor

any evidence of prejudice. In fact, the defense attorneys

that did raise the issue at trial all stated that they did not

think there was any wrongdoing. For example, Diaz’s

attorney told the court, “I did observe Agent Schulte

nodding. I don’t say that it was conscious . . . I don’t think

it was conscious, of course.” (Tr. 1266-67.) And Stevenson’s

attorney stated, “I have been watching Mr. Schulte and

I do not doubt . . . that what he’s saying is the truth, and

I don’t believe that any of this is being telegraphed. But

I must say this: as a result of watching Mr. Schulte, he’s . . .

expressive . . . . And I’m not suggesting that they’re—

he’s telegraphing it at all. I think it’s just his personal

mannerisms. ” (Tr. 1267-68.) Nothing more was ever made

of this issue. Given that even the defense attorneys sug-

gested that there was no real issue here, we think that the

district court properly handled the matter. Rosario’s claim

is rejected.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 49

99-2598, 99-2763, 99-2983, 01-1690

2. District Court’s Enhancement of Rosario’s

Sentence

At sentencing, the district court applied a four-point

enhancement under U.S.S.G § 3B1.1(a) for Rosario’s role

as a leader of the conspiracy and a two-point enhance-

ment under U.S.S.G. § 2D1.1(b)(1) for the possession of

firearms during the commission of the offense. Rosario

argues that these enhancements were improper. A sen-

tencing court’s factual determination concerning a defen-

dant’s role as a leader is subject to a clearly erroneous

standard, United States v. Hardamon, 188 F.3d 843, 851

(7th Cir. 1999), as is its factual determination that the

defendant possessed a firearm. United States v. Chandler,

12 F.3d 1427, 1435 (7th Cir. 1994). Because the evidence

overwhelmingly supported the application of both en-

hancements, we find no clear error.

Section 3B1.1(a) instructs a sentencing court as follows:

“If the defendant was an organizer or leader of a criminal

activity that involved five or more participants or

was otherwise extensive, increase by 4 levels.” U.S.S.G.

§ 3B1.1(a). The record shows that in 1995 Rosario was

elected to the position of “Inca” (the leader of the gang) by

his fellow gang members. Audio tapes of gang meetings

reveal Rosario inquiring about who was doing security

on Nation Days and directing enforcers to do their job.

Further, the government presented evidence that Rosario

determined when Nation Days would take place and how

often, and that he presided over the meetings at which

the leaders of the gang discussed their drug business.

Rosario’s primary argument is that it was Juan Hernandez,

the gang’s treasurer, who really directed the activities

on Nation Days. Rosario neglects to mention that he was

the one who personally appointed Juan Hernandez to

serve in this role. More importantly, while the evidence

50 Nos. 99-2299, 99-2505, 99-2514, 99-2570,

99-2598, 99-2763, 99-2983, 01-1690

does show that Juan Hernandez did play a central role,

Rosario does not dispute that an organization can have

more than one leader. See U.S.S.G. § 3B1.1 cmt. n.4. And

the evidence here shows that the district court did not

commit clear error in finding that Rosario was a leader of

this conspiracy.

Likewise, we affirm the district court’s enhancement for

possession of a dangerous weapon. Under § 2D1.1(b)(1), a

defendant “possesses” firearms if he actually or construc-

tively possessed the gun. United States v. Brack, 188 F.3d

748, 763-64 (7th Cir. 1999). Moreover, “a defendant can

be held responsible for a co-defendant’s possession of a

weapon if that possession was in furtherance of . . . jointly

undertaken criminal activity and was reasonably fore-

seeable by the defendant.” Id. at 764 (quoting United States

v. Taylor, 111 F.3d 56, 59 (7th Cir. 1997)). The audio tapes

presented by the government provide various examples

of Rosario inquiring about the gang’s guns. Further, there

was much evidence that the gang stored guns at members’

houses and that co-conspirators used guns for security

on Nation Days. Thus, there was no clear error in the

district court’s determination that Rosario possessed

firearms.

Rosario’s final argument that the government failed to

prove that the substance involved was crack cocaine as

opposed to some other type of cocaine base also fails

because the government did introduce sufficient evidence

to establish that crack cocaine was the substance that

Rosario and the other gang members distributed. There-

fore, Rosario’s sentence is affirmed.

III. Conclusion

For the foregoing reasons the convictions and sentences

of all eight defendants are AFFIRMED.

Nos. 99-2299, 99-2505, 99-2514, 99-2570, 51

99-2598, 99-2763, 99-2983, 01-1690

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-3-03