Appeal from the United States District Court for the Southern District of Illinois. No. 99-40062-001-JLF--James L. Foreman, Judge.
Before Posner, Kanne, and Rovner, Circuit Judges.
The opinion of the court was delivered by: Rovner, Circuit Judge
Jose Martin Martinez pleaded guilty to one count of conspiring to possess marijuana with intent to distribute, 21 U.S.C. sec.sec. 846, 841(a)(1), and one count of possessing marijuana with intent to distribute, id. sec. 841(a)(1). Although Martinez admitted to selling only 88.5 kilograms (203 pounds), the district court attributed to him a much larger amount and accordingly sentenced him to 292 months' incarceration on the conspiracy count, and to a concurrent term of 240 months' incarceration on the distribution count. Martinez now argues that his case should be remanded for resentencing. We disagree.
In June 1999 confidential informant Mauricio Lopez introduced Martinez to David Hathaway, an undercover special agent of the Drug Enforcement Administration. Lopez told Martinez that Hathaway was his brother-in-law and that Hathaway wanted to purchase marijuana. On June 23 Martinez, accompanied by co-conspirator Francisco Fernandez, met with Hathaway in West Frankfort, Illinois, and negotiated the sale of 88.5 kilograms. At Martinez's direction, Fernandez placed a cell-phone call to arrange for the delivery. A short time later Ronald Czajka and his brother Philip, both of whom were unknown to law enforcement agents at that time, arrived in a semi-truck and gave Hathaway three packages containing the marijuana.
After the delivery all of the participants left the site. Martinez drove north to Chicago, talking by phone to Hathaway while en route. Martinez told Hathaway that he could continue to provide all the marijuana he wanted, 200 pounds at a time. Martinez also stated that he used semi-trucks to transport marijuana because they effectively averted police suspicion. In addition, Martinez informed Hathaway that he was traveling to Mexico to acquire another 1,500 to 2,000 pounds of marijuana, and that he wanted to be paid for the recent delivery before embarking on the trip.
In the meantime Ronald Czajka drove west under surveillance. In order to identify him, police stopped his truck on a ruse as he was exiting West Frankfort. Once back on the road Czajka phoned Fernandez and told him that he had been stopped as part of a routine road check. Soon thereafter Martinez received word of the stop and told Hathaway. Czajka proceeded to Dallas and picked up an empty trailer, then drove to El Paso, where he loadedanother 10,000 pounds of marijuana. Czajka then picked up Fernandez in Oklahoma City, and the two delivered the stash to locations in New York and Pennsylvania.
In July 1999 a federal grand jury returned a two-count indictment charging Martinez (along with Fernandez and the Czajka brothers) with conspiring to sell "divers" quantities of marijuana, and with distributing approximately 90 kilograms of marijuana. In December 1999 Martinez entered blind guilty pleas to both counts.
At the sentencing hearing Ronald Czajka, now a government witness, admitted to delivering the 203 pounds of marijuana to Hathaway. Czajka also testified that he contacted Fernandez after his truck had been stopped, picked up 10,000 pounds of marijuana from a man named Daniel Vargas in El Paso, and delivered the marijuana to locations in New York and Pennsylvania. The government also called Lopez, who testified that Martinez told him of running 2,000 to 3,000 pounds of marijuana every two to three months since March 1997. Hathaway testified as well, but Fernandez did not--he was a fugitive at the time of the hearing. The court, however, did allow Hathaway to testify that Fernandez had stated in an August 1999 proffer that Martinez had moved 3,000 to 6,000 pounds of marijuana every two weeks from June 1998 through mid-1999. Fernandez, represented by counsel, also stated in the proffer that he was a commercial truck driver (Hathaway later verified that he held a commercial truck license) who had personally transported marijuana for Martinez on at least two occasions.
Fernandez also said that Martinez had used a van that featured a secret compartment to hide money and that he had frequently observed amounts of cash totaling approximately $100,000 in the compartment. Police had seized the van previously but discovered the compartment only after Fernandez provided the tip. According to Fernandez, Martinez also had asked him to move $2,000,000 to Martinez's ranch in Mexico in exchange for a 5% commission. Finally, Fernandez said that the 203 pounds of marijuana sold to Hathaway had been sent by Vargas from Texas. The court continued the sentencing proceedings following Hathaway's testimony.
Before Martinez was sentenced by the district court, Fernandez was apprehended and placed in police custody within the Southern District of Illinois. Neither Martinez nor the government, however, called Fernandez to testify.
The district court concluded that Martinez was responsible not only for the 203 pounds (88.5 kilograms) he admittedly sold to Hathaway, but also for the 10,000 pounds that Czajka moved from Texas; the 12,000 pounds identified by Lopez (2,000 pounds every 2 months); and an additional 75,000 pounds (3,000 pounds every two weeks for one year) elicited in Fernandez's proffer. The court therefore attributed 97,203 pounds of marijuana to Martinez, giving him a total offense level of 40*fn1 (the 88.5 kilograms would have yielded a total offense level of 26). The court assigned Martinez a criminal history category of I, resulting in a guideline imprisonment range of 292 to 365 months for the conspiracy count, and 240 months (the statutory maximum) for the distribution count. The court sentenced him to concurrent terms of 292 and 240 months' incarceration.
Martinez first argues that the sentences imposed by the district court are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi holds that factual findings (other than prior convictions) that raise a defendant's sentence above the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Id. at 476. Martinez admitted to selling approximately 90 kilograms of marijuana, yielding a statutory maximum of 20 years on both counts, see 21 U.S.C. sec. 841(b)(1)(C). The court, however, sentenced him to 292 months for the conspiracy count, 52 months beyond the statutory maximum.
Because Martinez did not raise this Apprendi issue in the district court, we review his challenge for plain error. See, e.g., United States v. Alanis, 265 F.3d 576, 589 (7th Cir.), petition for cert. filed, 70 U.S.L.W. 3429 (U.S. Dec. 5, 2001) (No. 01-904). Under this standard, Martinez must establish (1) there was error; (2) the error was plain; (3) the error affected a substantial right; and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See id. Here, Martinez cannot prevail under the fourth prong. The district court's error did not seriously affect the fairness of the proceeding because the court could have imposed the same punishment simply by imposing consecutive sentences. See U.S.S.G. sec. 5G1.2(d) (instructing courts to impose consecutive sentences to achieve the total punishment appropriate to the convictions). As a result, the court's error did not result in a miscarriage of justice that warrants reversal. See United States v. ...