Appeals from the United States District Court for the Western District of Wisconsin. No. 00 CR 23--John C. Shabaz, Judge.
Before Flaum, Chief Judge, Bauer and Harlington Wood, Jr., Circuit Judges.
The opinion of the court was delivered by: Bauer, Circuit Judge.
The defendants were engaged in a conspiracy to distribute cocaine in Sauk County, Wisconsin.*fn2 Several defendants elected to go to trial and were found guilty by their respective juries; others chose to plead guilty. The district court imposed sentences on each defendant. Almost all of the five defendants before this court appeal some aspect of their sentences, and the others raise a litany of additional issues related to their trials. For the following reasons, we affirm the verdicts and sentences for all five defendants.
The facts involve a rather long and convoluted series of meetings, statements, and transactions, most of which might make for colorful background information about the drug trade in Wisconsin, but are not pertinent to the issues on appeal. Therefore, we set forth only the facts necessary to each issue raised. Because some of the defendants appeal the same issues we will proceed by addressing each point of error raised and note the resulting application of law to each defendant's individual challenge.
The defendants did not timely raise Apprendi objections below, thus the arguments were forfeited and we review only for plain error. See, e.g., United States v. Cooper, 243 F.3d 411, 415-16 (7th Cir. 2001), cert. denied, 122 S.Ct. 64 (2001). To determine if there was plain error we apply a four-part test: "(1) whether there was error at all, (2) if so, whether it was plain, (3) whether the error affected . . . substantial rights, and (4) whether it seriously affected the fairness, integrity, or public reputation of the proceedings." United States v. Robinson, 250 F.3d 527, 529 (7th Cir. 2001), cert. denied, 122 S.Ct. 215 (2001). The defendants don't make it over the first hurdle: "whether there was an error at all." Robinson, 250 F.3d at 529.
1. Hector Carrasco (00-3747)
Hector Carrasco was indicted on a single count, for conspiring to distribute cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. sec. 846. The indictment did not state the amount of drugs Carrasco conspired to distribute, although it did state the substance, cocaine. The jury found Carrasco guilty of the offense as charged in the indictment. Carrasco was sentenced to 97 months (just over 8 years) in prison and 3 years supervised release.
2. Victor Alicea (00-3781)
Victor Alicea was indicted on two counts: for conspiring to distribute cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. sec. 846, and for distributing a controlled substance in violation of 21 U.S.C. sec. 841(a)(1). The indictment did not state the amount of drugs Victor Alicea distributed or conspired to distribute, but it did name cocaine as the substance distributed. The jury found Victor Alicea guilty of both offenses. Victor Alicea was sentenced to two concurrent sentences of 120 months (two concurrent 10-year terms, one for each count) and two concurrent 3- year terms of supervised release (one for each count).
Since it was decided, Apprendi v. New Jersey, 530 U.S. 466 (2000), has spawned an endless number of appeals by defendants seeking to determine and expand its scope. These defendants contend Apprendi requires the amount of cocaine they conspired to distribute be charged in the indictment and proven to the jury beyond a reasonable doubt. In this case, the district court in the sentencing phase found Carrasco accountable for 1,443.35 grams of cocaine and Victor Alicea accountable for 1,626 grams of cocaine by a preponderance of the evidence. Carrasco accurately notes that the penalty provisions in section 841(b) are based on drug quantity. See 21 U.S.C. sec. 841(b) (providing for penalties ranging from five years to life depending on the type and amount of drugs involved and if serious injury or death resulted from the use of the substances). Thus, possessing different types and amounts of drugs can alter the sentence a defendant faces. Id. Carrasco also correctly observes that drug quantity under Apprendi is an element--though not in the technical sense of the word--of the offense in section 841(b) that the government should specify and prove. Apprendi, 530 U.S. at 490; United States v. Mietus, 237 F.3d 866, 874 (7th Cir. 2001); United States v. Bjorkman, 270 F.3d 482, 490-92 (7th Cir. 2001) (per curiam) (holding that "Apprendi does not rewrite or change the elements of any federal offense; its does, however, determine who must make particular decisions, and what the burden of persuasion must be."); but see United States v. Sheppard, 219 F.3d 766, 767-69 & n.3 (8th Cir. 2000) (noting that quantity is an element of a sec. 841 offense, but there is likely no Apprendi problem if the sentence received is within the "statutory maximum penalty for sec. 841 offenses involving any quantity of a Schedule II controlled substance") (emphasis in original). In any event, Carrasco and Victor Alicea's arguments in this situation are unavailing.
Apprendi only requires "any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490 (emphasis added). If a drug amount is not charged in the indictment and proven beyond a reasonable doubt, "the statutory maximum under sec. 841(b) is to be determined without making any reference to drug amount." United States v. Jones, 245 F.3d 645, 647-48 (7th Cir. 2001); United States v. Westmoreland, 240 F.3d 618, 632 (7th Cir. 2001). Thus, "when a defendant's sentence does not exceed 20 years imprisonment--the maximum under sec. 841(b) for possessing/distributing the smallest amount of cocaine--Apprendi is irrelevant." Robinson, 250 F.3d at 529. There is no error, plain or otherwise, if the defendants' sentences do not exceed twenty years. Id.
Hector Carrasco received just over 8 years and Victor Alicea drew two concurrent sentences of 10 years. Neither of the sentences exceed the maximum sentence allowed (20 years) under section 841(b) when an amount of cocaine is not charged and proven. See, e.g., id.; Jones, 245 F.3d at 648-50. Could the indictment have listed the amounts? Certainly, but it is not required under Apprendi. See, e.g., Robinson, 250 F.3d at 527; Jones, 245 F.3d at 648-50. Should the indictment have listed the amounts? Probably, because it would have undoubtedly reduced the defendants' avenues of appeal and allowed their sentences to be increased (based on drug amounts).*fn3 See United States v. Brough, 243 F.3d 1078, 1079-80 (7th Cir. 2001), cert. denied, 122 S.Ct. 203 (2001) (noting that "a post-Apprendi indictment should specify . . . the events listed in sec. 841(b) [amount and type of drugs] on which the prosecutor relies to establish the maximum sentence.") (emphasis added); see also Bjorkman, 270 F.3d at 491-92 (explaining the difference between the "must" prove elements in sec. 841(a) and "should" prove drug quantity in sec. 841(b)). Must the indictment list the amounts and the government prove them beyond a reasonable doubt? No, not when the sentence a defendant receives does not exceed the statutory maximum of 20 years for possessing or distributing the smallest amount of a Schedule II controlled substance. See, e.g., Robinson, 250 F.3d at 527; Jones, 245 F.3d at 648-50.
Victor Alicea, in addition to the argument advanced above, asserts that 21 U.S.C. sec. 841(b) is unconstitutional. We have already determined that Section 841(b) is not unconstitutional. Brough, 243 F.3d at 1079-80 ("we now hold, that there is no constitutional defect in the design of sec. 841, and that there is no impediment to convictions under the statute as written."); see also United States v. Collins, 272 F.3d 984, 988-89 (7th Cir. 2001).
B. U.S.S.G. sec. 2D1.1 Drug Quantity Determination
We review a district court's factual findings in applying the Sentencing Guidelines for clear error. United States v. Williams, 272 F.3d 845, 851-52 (7th Cir. 2002), cert. denied, 122 S.Ct. 1339 (2002); United States v. Joiner, 183 F.3d 635, 640 (7th Cir. 1999). Under this familiar standard, we review the district court's findings to determine if there is any evidence in the record to support the findings, and will reverse only if we have a "'firm and definite conviction that a mistake has been made.'" E.g., United States v. Miner, 127 F.3d 610, 614-15 (7th Cir. 1997) (citation omitted). Reasonable estimates of drug amounts based on the Presentence Investigation Report (PSR), testimony, and other evidence are permissible, while speculation is not. Westmoreland, 240 F.3d at 630-32; Joiner, 183 F.3d at 640; United States v. Jarrett, 133 F.3d 519, 530 (7th Cir. 1998).
1. Douglas Martin (00-3519)
Martin argues that he never "intended" or "agreed" to provide cocaine to Lisa Templin, and he asserts that any comments he made to that effect were the result of one too many drinks or mere boasting. (One frequently leads to the other in many areas of life.) The district court found 544.06 grams of cocaine attributable to Douglas Martin and sentenced him to 60 months (5 years) in prison and 3 years supervised release. The finding was based on the PSR, conversations Martin had with others, and remarks he made involving Templin. Martin joined the conspiracy late, but moved up in the ranks rather quickly to become Victor Matias, Jr.'s "right hand man." Victor Matias, Jr. was found to have distributed some 7.7 kilograms of cocaine, but the district court took into account Martin's late arrival and attributed only a portion of that amount to him. Martin told Templin that he could obtain 500 grams of cocaine from Victor Matias, Jr. The district court found this statement credible ...