In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3563, 02-3564 & 02-3842
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Cross-Appellant,
v.
GREGORIO MACEDO,
Defendant-Appellant,
and
VICTOR HUGO CONTRERAS,
Defendant-Appellant, Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 57—David H. Coar, Judge.
____________
ARGUED OCTOBER 22, 2003—DECIDED JUNE 15, 2004
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Gregorio Macedo and Victor
Hugo Contreras were convicted of various drug offenses.
Defendant Macedo alleges several violations of Apprendi v.
2 Nos. 02-3563, 02-3564 & 02-3842
New Jersey, 530 U.S. 466 (2000), which he contends render
his convictions and sentence infirm. He also argues that the
government lacked sufficient evidence to support his
convictions. Defendant Contreras argues that evidence of
prior bad acts was improperly admitted in violation of Rule
404(b) of the Federal Rules of Evidence. The government
also appeals the district court’s decision to grant defendant
Contreras a one-point downward departure based on his
alien status. We find the defendants’ arguments wanting
and therefore affirm both convictions as well as defendant
Macedo’s sentence. However, because we find that the
district court erred in its decision to downward depart, we
must remand defendant Contreras for resentencing.
I. THE TRIAL
The following facts were presented at trial. On January
20, 2001, Francisco Maldonado Herrera (Maldonado) and
Ricardo Mendez, Mexican nationals, traveled from Morelia,
Mexico to O’Hare International Airport in Chicago, Illinois
with over 400 grams of methamphetamine in the soles of
their shoes. Months prior to their trip, Maldonado and
Mendez were both approached in Mexico by a man known
only as “Rene” and asked if they were willing to serve as
drug carriers to the United States for $1500 per trip. Rene
told the men that once in the United States, they would be
met by a man named “Hugo” at the airport who would ex-
change the shoes containing the methamphetamine for new
ones and purchase each a return ticket to Mexico.1
1
While this was Mendez’s first smuggling trip to the United
States, it was Maldonado’s third. On the two prior occasions,
however, Maldonado traveled alone. His first trip occurred on
November 3, 2000. Upon arrival at O’Hare, Maldonado was met
by “Hugo,” whom he later identified in court as Victor Hugo
(continued...)
Nos. 02-3563, 02-3564 & 02-3842 3
Maldonado was stopped by United States Customs
Inspector Carlos Torres who noticed that he was wearing
brand-new shoes which appeared too large for his feet. After
receiving several evasive responses to his inquiries, Inspec-
tor Torres asked to see Maldonado’s shoes where he found
the methamphetamine. Maldonado agreed to cooperate with
the government by wearing a wire to record conversations
between the defendants and Mendez. He also agreed to call
Mexico in an effort to locate Contreras and Macedo in
Chicago.2 Maldonado was able to reach an associate of
Rene’s who gave him Contreras’s cellular phone number as
well as Macedo’s home telephone number. Maldonado then
phoned Contreras who agreed to meet him in the airport.
All of these phone conversations were recorded by govern-
ment officials.
While Mendez made it through customs, his contact,
“Hugo,” was not at the airport to meet him. During his wait,
he made several phone calls to Mexico attempting to locate
his contact. He was able to reach family members in Mexico
who gave him two phone numbers as contacts. His family
members received the information from Rene. The numbers
were later identified as Gregorio Macedo’s home telephone
number and cellular phone number.
After several tries, Mendez was able to make contact with
(...continued)
Contreras. Contreras and Maldonado drove from the airport to
Contreras’s home where they exchanged the drug shoes for new
ones. The men then returned to the airport and Contreras pur-
chased Maldonado’s return ticket to Mexico. This scheme occurred
once more on November 17, 2000. Maldonado’s testimony was
corroborated by the Customs Record Log, which showed that he
previously entered O’Hare Airport on November 3, 2000, and
November 17, 2000.
2
Both defendants were residing illegally in the United States.
4 Nos. 02-3563, 02-3564 & 02-3842
the defendants who met him at a diner near O’Hare
Airport. The three men then drove to a shoe store where
Macedo purchased a replacement pair of shoes for Mendez’s
return. After the trip to the shoe store, the three men
checked into a motel near the airport. According to Mendez,
the motel bill was also paid for by Macedo. The shoes
containing the methamphetamine were left in the motel
room, and after receiving Maldonado’s call, they returned to
the airport. The four men met in Terminal 5 and began
discussing Maldonado’s experience with the customs agent.
This conversation was recorded. Shortly thereafter, all four
men were arrested by authorities.
Following the arrest, the government recovered the shoes
from the motel room which contained 436.9 grams of
methamphetamine (found to be 91% pure with an approxi-
mate street value of $175,000). The shoes seized from
Maldonado at the airport contained 441.9 grams of meth-
amphetamine (also 91% pure with a parallel street value).
After a search of Contreras’s car, the government also found
the key to the motel room rented by Macedo in the glove
compartment.
Mendez and Maldonado pleaded guilty and agreed to
testify against Macedo and Contreras at trial. In addition
to the testimony previously discussed, the evidence ad-
mitted during trial included: the testimony of the two co-
conspirators, various customs agents, a Drug Enforcement
Agent, and several police officers; the shoes seized at the
airport and the motel room containing methamphetamine;
transcripts of recorded conversations between conspiracy
participants in Mexico and Maldonado; the phone numbers
communicated to Maldonado and Mendez; the defendants’
cellular and home phone records; and the motel room key
recovered from defendant Contreras’s vehicle.
During the trial, the district court also allowed Officer
Daniel Vasquez to testify concerning two earlier encounters
Nos. 02-3563, 02-3564 & 02-3842 5
with defendant Contreras.3 Officer Vasquez testified that in
1992 he was working as an undercover agent with the
Narcotics Covert Investigation team of the San Jose,
California Police Department and made two undercover
purchases of cocaine from a person known as “Gerardo.”
The first purchase occurred on January 27, 1992, which
involved the use of a “special employee” (SE), or informant,
to call an individual to set up a drug buy for the undercover
agent. The SE contacted Gerardo and stated that a friend
wanted to purchase approximately one half of an ounce of
cocaine. Gerardo then met the SE and Officer Vasquez at a
local restaurant, where Gerardo got into the back seat of
Officer Vasquez’s vehicle, and handed the SE a plastic
package surrounded by duct tape. Officer Vasquez paid
Gerardo $250 for the package which contained 14.87 grams
of cocaine. On March 2, 1992, Officer Vasquez contacted
Gerardo once again and purchased 27.61 grams of cocaine
for $500. Officer Vasquez attempted to make a third
purchase from Gerardo but was unable to contact him. He
was able to identify Gerardo as Victor Hugo Contreras
shortly after the purchases by subpoenaing the phone
records for the contact number he was given by the SE.
Officer Vasquez was also able to identify Gerardo as
Contreras in the courtroom.
On October 12, 2001, after an eight-day trial, Gregorio
Macedo was found guilty of three offenses: (1) conspiracy to
import 500 grams or more of methamphetamine or mixtures
thereof, in violation of 21 U.S.C. § 963; (2) possession with
intent to distribute between 50 and 500 grams of metham-
phetamine or mixtures thereof, in violation of 21 U.S.C.
§ 841(a)(1); and (3) attempted possession of between 50 and
500 grams of methamphetamine or mixtures thereof, in
3
Before this testimony, the district court instructed the jury that
the information conveyed by Officer Vasquez was solely to be used
as evidence on the question of intent.
6 Nos. 02-3563, 02-3564 & 02-3842
violation of 21 U.S.C. § 846. His co-defendant, Victor Hugo
Contreras, was found guilty of conspiracy to import 500
grams or more of methamphetamine or mixtures thereof
and possession with intent to distribute between 50 and 500
grams of methamphetamine or mixtures thereof. On
September 5, 2002, Macedo was sentenced to 314 months,
while Contreras was sentenced to 210 months. The district
court also granted each defendant a one-point downward
departure based on their status as deportable aliens.
The defendants allege several errors on appeal. Defendant
Macedo contends that Apprendi was violated when: (1) he
was sentenced beyond the statutory maximum for schedule
III drug violations; (2) the trial court failed to instruct the
jury that it was required to find him guilty beyond a
reasonable doubt of conspiring/possessing/ attempting to
possess a specific amount of drugs as opposed to a range of
drugs; and (3) the district court sentenced him beyond the
statutory maximum by holding him responsible for 799.9
grams of methamphetamine. Macedo also challenges the
sufficiency of the evidence presented at trial on all three
counts of the indictment. Defendant Contreras only asserts
that the trial court abused its discretion by admitting the
testimony of Officer Vasquez under F.R.E. 404(b) concern-
ing two prior drug sales. Finally, the government appeals
the district court’s decision to grant defendant Contreras a
one-point downward departure based on his status as a
deportable foreign national.4
II. ANALYSIS
A. Statutory Maximum Sentence and Apprendi
4
Defendant Contreras’s original guideline range of 235 to 293
months was thus reduced to 210 to 262 months and resulted in a
sentence of 210 months. The government does not appeal the
district court’s decision to grant defendant Macedo a one-point
downward departure, though the trial court applied the same
reasoning for each defendant.
Nos. 02-3563, 02-3564 & 02-3842 7
Macedo’s primary objection stems from the government
mislabeling methamphetamine a schedule III drug (rather
than correctly labeling it a schedule II drug) in its indict-
ment. But because the indictment listed the specific drug
and quantity charged and the jury found him guilty of
conspiring to import, possessing and attempting to possess
a specific drug type and amount, the incorrect designation
of methamphetamine as a schedule III drug in the indict-
ment does not implicate Apprendi.
On July 7, 1971, the Director of the Bureau of Narcotics
and Dangerous Drugs, on behalf of the Attorney General,
reclassified methamphetamine from a schedule III drug to a
schedule II drug based on its high potential for abuse
relative to other substances. See 36 F.R. 12734, 12735 (July
7, 1971); 21 C.F.R. § 1308.12(d). Title 21 U.S.C. § 811(a)
grants the Attorney General the power to reclassify con-
trolled substances. Title 21 U.S.C. § 812(c), which lists the
drug classification schedule, classifies methamphetamine as
a schedule II drug when it is contained in “any injectable
liquid,” but classifies methamphetamine as a schedule III
drug when it is in any other form. Though previously
unaddressed by this court directly, see United States v.
Roya, 574 F.2d 386, 392-93 (7th Cir. 1978), we now find
that the reclassification of methamphetamine as a schedule
II substance applies to all forms of methamphetamine in
accordance with 21 C.F.R. § 1308.12(d) despite the statute’s
distinction. Accord United States v. Gori, 324 F.3d 234, 240
(3d Cir. 2003) (reasoning that 21 C.F.R. § 1308.12(d) must
supercede 21 U.S.C. § 812(c)’s schedule classification as the
Attorney General acted pursuant to express authorization
and the regulation was properly promulgated); United
States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994); United
States v. Kendall, 887 F.2d 240, 241 (9th Cir. 1989) (per
curiam).
8 Nos. 02-3563, 02-3564 & 02-3842
Macedo having been found guilty of 21 U.S.C. § 841(a)(1),5
was sentenced under section 841(b)(1), which sets the
default statutory maximum prison sentence based on the
amount and type of controlled substance at issue. The
statutory maximum penalty for Macedo’s conspiracy charge
is life in prison, id. at § 960(b)(1)(H),6 while the statutory
maximum penalty for his possession and attempted posses-
sion charges is forty years in prison, id. at
§ 841(b)(1)(B)(viii). However, section 841(b)(1)(D) states
that any person found guilty of violating section 841(a)(1)
as it relates to “any controlled substance in schedule
III [. . .] shall [. . .] be sentenced to a term of imprisonment
of not more than 5 years. . . .” Macedo, therefore, reasons
that because the indictment listed the drug as a schedule
III substance, he should have been sentenced to no more
than five years imprisonment under section 841(b)(1)(D).
An incorrect designation of the drug schedule in the
indictment does not mean there is an Apprendi violation
when the indictment also lists the specific drug as well as
the quantity.7 In essence, Macedo would have us ignore the
5
Section 841(a)(1) states that “it shall be unlawful for any person
to knowingly or intentionally [. . .] manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.”
6
Title 21 U.S.C. § 960(b)(1)(H) mirrors the language of section
841(b)(1)(A)(viii).
7
The indictment charged Macedo with three counts. Count one
charged that “defendants herein, conspired among themselves and
with others known and unknown to the Grand Jury, knowingly
and intentionally to import into the United States from a place
outside the United States, a controlled substance, namely 500
grams or more of a mixture or substance containing a detectable
amount of methamphetamine, a Schedule III Narcotic Drug
Controlled Substance; In violation of Title 21, United States Code,
(continued...)
Nos. 02-3563, 02-3564 & 02-3842 9
word “methamphetamine” and the quantity designation in
the indictment, focus solely on the portion of the document
which mislabels the schedule classification, and then leap
to the conclusion that any sentence beyond the statutory
maximum for a schedule III drug (5 years) is a violation of
Apprendi. This logic is unsound.
Apprendi demands that “any fact that increases the pen-
alty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reason-
able doubt.” 530 U.S. at 490. In drug sentencing cases,
Apprendi requires a drug type and amount “sufficient to
trigger the higher statutory maximum of § 841(b)(1)(A) or
(B) be charged in the indictment and found by the jury.”
United States v. Mietus, 237 F.3d 866, 874 (7th Cir. 2001).
Its analysis therefore addresses solely the appropriate
decision maker and burden of proof. United States v.
Bjorkman, 270 F.3d 482, 490-92 (7th Cir. 2001); United
States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003).
In the case at bar, Macedo was properly indicted and the
jury was properly instructed concerning the applicable
penalties through the use of the special verdict form. The
special verdict form properly tracked the relevant language
(...continued)
Section 952(a).” Count three charged that “defendants herein, did
knowingly and intentionally possess with intent to distribute a
controlled substance, namely approximately 460 grams of
methamphetamine or a mixture or substance containing a
detectable amount of methamphetamine, a Schedule III Narcotic
Drug Controlled Substance; In violation of Title 21, United States
Code, Section 841(a)(1).” Count four charged that “defendants
herein, did knowingly and intentionally possess with intent to
distribute a controlled substance, namely, approximately 470
grams of methamphetamine or a mixture or substance containing
a detectable amount of methamphetamine, a Schedule III Narcotic
Drug Controlled Substance; In violation of Title 21, United States
Code, Section 841(a)(1).”
10 Nos. 02-3563, 02-3564 & 02-3842
of 21 U.S.C. § 841(b)(1). The use of this form satisfies the
edicts of Apprendi in that the drug type and amount
sufficient to trigger the higher statutory maximums were
found by the jury beyond a reasonable doubt. Id. Thus,
Macedo was not sentenced beyond the statutory maximum
for the charged offenses. Macedo was sentenced to 314
months imprisonment (approximately 26 years), well below
the statutory maximum for any of the charged offenses. See
United States v. Hernandez, 330 F.3d 964, 981 (7th Cir.
2003) (reasoning that Apprendi is inapplicable when the
defendant is sentenced below the statutory maximum for
the charged offense). The fact that the indictment incor-
rectly designated methamphetamine as a schedule III
substance had no effect on the validity of the indictment or
the subsequent sentence. See United States v. Trennell, 290
F.3d 881, 889-90 (7th Cir. 2002) (finding error in indictment
harmless where jury determined drug quantity through the
use of a special verdict form); see also United States v.
Greenwood, 974 F.2d 1449, 1472-73 (5th Cir. 1992) (finding
that government erroneously labeling methamphetamine a
schedule III drug did not set statutory maximum sentence
at five years pursuant to § 841(b)(1)(D) and defendant may
be sentenced under § 841(b)(1)(A)(viii) and (B)(viii) where
indictment stated the specific drug type and quantity
range).8
8
Macedo is correct that the schedule classification of a drug may
be relevant to the maximum statutory penalty determination and
may create an Apprendi violation if the indictment refers to the
drug at issue solely in terms of its schedule classification without
referencing the drug type or amount. For example, if the indict-
ment and subsequent verdict form in this case charged Macedo
with conspiracy to import/possession/attempted possession “a
schedule III drug,” then he is correct that the statutory maximum
sentence for that crime, under Apprendi, would be 5 years as
designated by section 841(b)(1)(D). See United States v. Martin,
287 F.3d 609, 614-15 (7th Cir. 2002) (reasoning that where
(continued...)
Nos. 02-3563, 02-3564 & 02-3842 11
Macedo also misconstrues Apprendi by arguing that it
requires a jury find him guilty beyond a reasonable doubt
of importing/possessing/attempting to possess a specific
amount of methamphetamine as opposed to the drug range
used by the trial court in the special verdict form. He also
takes issue with the district court’s jury instructions. The
district court initially instructed the jury that the gov-
ernment need only prove that he possessed/attempted to
possess “a measurable amount” of a controlled substance to
sustain a guilty verdict of the underlying offenses. The
court then, through the use of a special verdict form, di-
rected the jury, if it found him guilty in the first instance,
to attribute an appropriate range of drugs to each violation.
We review a district court’s choice of jury instruction de
novo when the underlying assignment of error implicates a
question of law, such as the applicability of Apprendi;
however, general attacks on jury instructions are reviewed
for an abuse of discretion. United States v. Smith, 308 F.3d
726, 741 (7th Cir. 2002). In Smith, we explicitly held that,
even in light of Apprendi, drug quantity is not an element
of the offense and need not be proven to sustain a guilty
verdict under § 841(a)(1). Thus, the “measurable amount”
instruction is appropriate as it relates to a finding of guilt
of the underlying offenses. See id. We also explained that a
jury is not required to find a specific drug amount and the
use of a drug range in a verdict form is acceptable under
Apprendi because the elements necessary to trigger the
statutory maximum penalty are found beyond a reasonable
doubt. See id. (reasoning that because 21 U.S.C. § 841(b)
speaks in terms of drug ranges, a jury verdict which par-
(...continued)
indictment and verdict form stated only drug type, cocaine,
without stating drug quantity, under Apprendi defendant’s
sentence could not exceed statutory maximum for the smallest
amount of cocaine listed in § 841(b)(1)).
12 Nos. 02-3563, 02-3564 & 02-3842
allels the statutory language is lawful); see also Mietus, 237
F.3d at 874 (finding that jury instruction which asked only
that jury find a “measurable amount” without more was
insufficient under Apprendi).
While we do not espouse the government’s “no harm no
foul” attitude concerning the typographical error in the in-
dictment, the issue remains whether, in light of the error,
Macedo was afforded sufficient notice of the charges against
him to prevent any possibility of prejudice. United States v.
Field, 875 F.2d 130, 133 (7th Cir. 1989). Pursuant to the
logic in Field, where an error in an indictment does not go
to an element of the crime, but rather is typographical in
nature, a defendant is not prejudiced. Id. Therefore, the
improper designation of methamphetamine as a schedule
III drug did not prejudice the defendant as he was directed
to the applicable statute and afforded proper notice of the
charges against him.9
Finally, Macedo also finds fault with the district court’s
sentencing determination that he was responsible for 799.7
grams of methamphetamine, arguing once again that
Apprendi and the United States Sentencing Guidelines
were violated because he was sentenced beyond the statu-
tory maximum for a schedule III substance.10 For the
9
To the extent Macedo is arguing that the jury instructions
amounted to a de facto amendment of the indictment, his asser-
tion is foreclosed by Field. The designation of methamphetamine
as a schedule III drug had no substantive effect on the indictment
as it is a fact that “need not be proven even if alleged, [. . .] and
the jury could have been instructed to ignore. . . .” Id. at 133
(quoting United States v. Skelly, 501 F.2d 447, 453 (7th Cir.
1974)).
10
Though the gross weight of the drugs seized totaled 878.8
grams, the district court found that Macedo was only responsible
for 799.7 grams because an expert determined that the drugs re-
covered from the two pairs of shoes were only 91% pure metham-
Nos. 02-3563, 02-3564 & 02-3842 13
reasons stated above, we reject Macedo’s sentencing argu-
ment as he was not sentenced beyond the statutory maxi-
mum for the offenses charged.
B. Sufficiency of the Evidence
Macedo contends that the government failed to present
sufficient evidence to support his conviction on all three
charges in the indictment. On appeal, we review the evi-
dence in the light most favorable to the prosecution and will
reverse a jury verdict only when the record “is devoid of any
evidence, regardless of how it is weighed, from which a jury
could find the defendant[] guilty beyond a reasonable
doubt.” Hernandez, 330 F.3d at 976 (citing United States v.
Johnson, 26 F.3d 669, 684 (7th Cir. 1994)). While a suffi-
ciency of the evidence claim is not untenable on appeal, it
is nevertheless a steep hill to climb. Id. (citing United
States v. Frazier, 213 F.3d 409, 416 (7th Cir. 2000)).
In essence, Macedo takes issue with the propriety of re-
lying on coconspirator testimony to support his convictions.
He argues that Maldonado and Mendez’s testimony was
conflicting, inconsistent and biased, and absent the testi-
mony, there is no evidence linking him to this conspiracy
beyond his mere presence at the airport. However, the
conflicts or inconsistencies Macedo highlights are immate-
rial.11 With regard to Maldonado and Mendez’s potential
(...continued)
phetamine.
11
For example, he points to discrepancies between Mendez’s
grand jury testimony, where he stated that he was to receive the
full $1500 from Contreras and Macedo in the United States, with
his in court testimony, where he stated that he was to be paid in
two installments of $750. He also suggests Maldonado’s testimony
(continued...)
14 Nos. 02-3563, 02-3564 & 02-3842
bias, this court has held that “[u]nless testimony is inher-
ently unbelievable, a guilty verdict may be based on the
testimony of a coconspirator testifying pursuant to a plea
agreement: Credibility is for the jury, not this court to
determine.” United States v. Jewel, 947 F.2d 224, 231 (7th
Cir. 1991) (internal quotations and citations omitted).
Reviewing the record, we do not find that Maldonado
and Mendez’s testimony was “inherently unbelievable.”
Id. Quite the contrary, it was corroborated by the direct
evidence presented at trial. The government recovered
Mendez’s methamphetamine-laden shoes from the motel
room rented by Macedo. Agents observed the meeting be-
tween the four men on January 20, 2001, the day of the
arrest. Agent Michael Heene witnessed Maldonado place a
call to Contreras and Macedo which led to the meeting at
O’Hare Airport. Accordingly, we will not disregard the
testimony of his coconspirators.
Taking all the evidence presented to the jury into account,
it had ample evidence to support its guilty verdict on all
three charges in the indictment. To sustain a conspiracy
conviction, the government must prove that “two or more
persons joined together for the purpose of committing a
criminal act and that the charged party knew of and
intended to join the agreement.” United States v. Adkins,
274 F.3d 444, 450 (7th Cir. 2001). Further, a jury is not
limited to direct evidence (though here the record contains
a plethora) and may “find an agreement to conspire based
upon circumstantial evidence and reasonable inferences
drawn [from] the relationship of the parties, their overt
(...continued)
is unreliable given Maldonado’s statements to the grand jury that
he exchanged the methamphetamine-laden shoes in Contreras’s
car as compared to direct testimony where he stated the exchange
occurred in Contreras’s home.
Nos. 02-3563, 02-3564 & 02-3842 15
acts, and the totality of their conduct.” United States v.
Turner, 93 F.3d 276, 282 (7th Cir. 1996) (quoting United
States v. Mojica, 984 F.2d 1426, 1432 (7th Cir. 1993)).
The jury heard the following evidence: (1) Macedo trav-
eled to the airport to pick up Mendez and Maldonado; (2)
Macedo paid for the new shoes Mendez exchanged for the
shoes containing the drugs; (3) he paid for the motel room
from which the drugs were subsequently recovered; (4) he
told Maldonado that he would purchase his return ticket to
Mexico; and (5) his cellular phone number was given to both
coconspirators. See United States v. Gutierrez, 978 F.2d
1463, 1469 (7th Cir. 1992) (“[A] single act will suffice if the
circumstances permit the inference that the presence or act
was intended to advance the ends of the conspiracy.”). Thus,
Macedo’s involvement traversed the line from mere pres-
ence to participant. See United States v. Albarran, 233 F.3d
972, 977 (7th Cir. 2000) (reasoning that a government need
only prove a “participatory link” between the defendant and
the conspiracy). The jury had sufficient evidence to find that
Macedo knew of and intended to enter into an agreement
with Contreras, Maldonado and Mendez to engage in the
criminal act of importing methamphetamine.
The evidence also supports the jury’s verdict with regard
to Macedo’s possession with intent to distribute and
attempted possession charges. Under 21 U.S.C. § 841(a)(1),
the government must prove that Macedo (1) knowingly or
intentionally possessed the methamphetamine, (2) pos-
sessed it with the intent to distribute it, and (3) knew that
methamphetamine was a controlled substance. United
States v. Griffin, 194 F.3d 808, 816 (7th Cir. 1999). Mendez
testified that upon his arrival in the United States, he gave
the shoes containing the methamphetamine to Macedo who
determined it was safer to leave the shoes in the motel
room which Macedo secured. Thus, the jury could have
reasonably found that Macedo actually possessed the drugs,
as well as constructively possessed them. See United States
16 Nos. 02-3563, 02-3564 & 02-3842
v. Perlaza, 818 F.2d 1354, 1360 (7th Cir. 1987) (finding that
evidence of registration and control over a hotel room
containing drugs may be sufficient to find constructive
possession of drugs); see also United States v. Garrett, 903
F.2d 1105, 1112 (7th Cir. 1990) (holding that constructive
possession is sufficient to sustain a conviction under 21
U.S.C. § 841(a)(1)). Furthermore, the jury could have
reasonably found that Macedo intended to distribute the
methamphetamine based on the large quantity seized and
the testimony of his coconspirators.
C. Admission of Prior Bad Act Evidence Under
F.R.E. 404(b)
Defendant Contreras challenges the decision of the
district court to admit the testimony of Officer Vasquez
concerning two prior drug sales which occurred in 1992
as dissimilar and too remote in time. We review a district
court’s decision to admit evidence pursuant to Rule 404(b)
of the Federal Rules of Evidence for abuse of discretion.
United States v. Anifowoshe, 307 F.3d 643, 646 (7th Cir.
2002). Rule 404(b) prohibits the use of a defendant’s prior
bad acts as propensity evidence while permitting its use
to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
Fed. R. Evid. 404(b).
We have long recognized that the permissible use of prior
bad act evidence to prove intent or lack of mistake may
have the potential impermissible side effect of allowing the
jury to infer criminal propensity. See United States v.
Beasley, 809 F.2d 1273, 1278 (7th Cir. 1987) (“When the
same evidence has legitimate and forbidden uses, when the
introduction is valuable yet dangerous, the district judge
has great discretion.”). To address these twin concerns, we
have reasoned that evidence is properly admitted if the
government is able to show that:
Nos. 02-3563, 02-3564 & 02-3842 17
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propen-
sity to commit the crime charged, (2) the evidence
shows that the other act is similar enough and close
in time to be relevant to the matter in issue, (3) the
evidence is sufficient to support a jury finding that
the defendant committed the similar act, and (4)
the probative value of the evidence is not substan-
tially outweighed by the danger of unfair prejudice.
United States v. Wash, 231 F.3d 366, 370 (7th Cir. 2000)
(quoting United States v. Wilson, 31 F.3d 510, 514-15 (7th
Cir. 1994)). Furthermore, when a defendant is charged with
a specific intent crime, such as possession with intent to
distribute, we have reasoned that evidence of past action is
probative if used to establish an essential element of the
crime charged. Id.; United States v. Long, 86 F.3d 81, 84
(7th Cir. 1996).
Though this is a close case, we cannot find that the dis-
trict court abused its discretion by admitting the testimony
of Officer Vasquez. Contreras correctly points out that there
is a nine-year gap between the 1992 drug sales and the
2001 charges. While we acknowledge that nine years is a
substantial amount of time, the temporal proximity of the
prior acts to the current charge is not alone determinative
of admissibility. See United States v. Wimberly, 60 F.3d 281,
285 (7th Cir. 1995) (admitting prior bad act evidence that
occurred thirteen years prior to charge when evidence was
highly reliable and relevant to credibility); United States v.
Mounts, 35 F.3d 1208, 1214 (7th Cir. 1994) (permitting
admission of drug purchase which occurred seven years
prior to arrest to prove element of intent).
Defendant’s argument that the events are not sufficiently
similar because the 1992 transaction involved cocaine while
his current conviction involves methamphetamine is also
unsupported by this circuit’s precedent. The similarity
18 Nos. 02-3563, 02-3564 & 02-3842
inquiry focuses on the purpose for which evidence is offered.
Long, 86 F.3d at 84. The 1992 cocaine sales were offered to
prove Contreras’s intent to possess distribution amounts of
illicit drugs. See United States v. Hernandez, 84 F.3d 931,
935 (7th Cir. 1996) (finding sufficient similarity when
different drugs are at issue because both instances involved
“distribution amounts of drugs and illicit transport”); Wash,
231 F.3d at 370 (finding sufficient similarity when prior bad
acts and current charge both involve “possessing distribu-
tion amounts of drugs”).
The evidence submitted by Officer Vasquez was un-
questionably reliable. The record also reveals the district
court’s thorough discussion of Contreras’s theory of the
case, i.e., that he lacked the intent to enter into a con-
spiracy to import or possess methamphetamine or the
knowledge that one existed and was simply present at the
airport that day by happenstance. (During closing argu-
ments his attorney went so far as to call him a “dupe” or fall
guy.) This theory coupled with the government’s need to
prove an essential element of the case, i.e., that the defen-
dant acted with the requisite specific intent, supports the
district court’s decision to admit the prior bad acts.
Further, any prejudicial effect on the defendant was
lessened by the trial court’s limiting instruction that the
evidence was solely to be used to evaluate the issue of in-
tent. See United States v. Tringali, 71 F.3d 1375, 1379 (7th
Cir. 1995). Finally, were we to err on the side of caution and
deem this testimony’s admission in error, it would un-
doubtedly be harmless as the weight of the evidence against
Contreras was overwhelming. See United States v. Coleman,
179 F.3d 1056, 1062 (7th Cir. 1999).
D. Downward Departure Based on Alien Status
The government appeals the district court’s decision to
grant defendant Contreras a one-point downward departure
Nos. 02-3563, 02-3564 & 02-3842 19
based on its finding that his alien status and deportability
would cause the conditions of confinement to be more
“onerous.” The district court found that Contreras would
suffer a substantial hardship because the Bureau of
Prison’s (BOP) placement policy for deportable aliens
“limits the discretion of the Bureau of Prisons to take into
account among other things factors that would warrant
more humanitarian designations like family and other
matters.” Sent. Trans. at 6-16.12
We review a district court’s decision to grant a downward
departure de novo. United States v. Mallon, 345 F.3d 943,
945-47 (7th Cir. 2003) (discussing the retroactive applica-
tion of section 401(d) of the Prosecutorial Remedies and
Tools Against the Exploitation of Children Today Act of
2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650,
which amended 18 U.S.C. § 3742(e)’s prior standard of
review); see also United States v. Griffith, 344 F.3d 714,
718 (7th Cir. 2003) (discussing the effect of the PROTECT
Act on a district court’s decision to upward depart). This
court has held that “the defendant’s status as a deportable
alien is relevant only insofar as it may lead to conditions of
confinement, or other incidents of punishment, that are
substantially more onerous than the framers of the guide-
lines contemplated in fixing the punishment range for the
defendant’s offense.” United States v. Guzman, 236 F.3d
830, 834 (7th Cir. 2001) (emphasis added).
12
Contreras argues that the district court made the following
findings: (1) Contreras would not be able to serve any time in a
halfway house; (2) he would not be eligible for a minimum security
facility because he would have to be sent to one of three facilities
able to conduct deportation hearings; and (3) the high likelihood
he would be incarcerated in an INS camp which is “much harder
time.” After reviewing the record, we find that the district court
made no such findings. Rather these points were advanced by
Contreras in his argument to the court below.
20 Nos. 02-3563, 02-3564 & 02-3842
We then further explained that it is permissible “in ex-
ceptional circumstances” to take into account a defendant’s
alienage when assessing whether his status makes his con-
ditions of confinement “harsher by disentitling a defendant
to serve any part of his sentence in a halfway house,
minimum security prison, or intensive confinement center,
so that the same nominal prison sentence would be, quite
apart from the sequel of deportation, a more severe pun-
ishment than if the defendant were a citizen.” Id. More
recently, we explained that downward departures based
solely on an alien’s loss of “end-of-sentence modifications,”
such as halfway house placement, “cannot be viewed as a
term of imprisonment ‘substantially more onerous’ than the
guidelines contemplated in fixing a punishment for
a crime.” United States v. Meza-Urtado, 351 F.3d 301,
305 (7th Cir. 2003); but see Mallon, 345 F.3d at 949 (“A
prisoner who is ineligible for transfer, and as a result of
alienage becomes ineligible for transitional release, suffers
a real disadvantage.”).
The government is correct that the district court based its
decision on the BOP’s policy which places alien prisoners in
certain facilities. Any defendant, citizen or alien, may be
placed far from loved ones and family and thus this circum-
stance is not substantially more onerous than contemplated
by the guidelines. Furthermore, application of this logic
would amount to a per se downward departure for any
deportable alien, which standing alone, is an impermissible
basis for granting a downward departure. United States v.
Gallo-Vasquez, 284 F.3d 780 (7th Cir. 2002) (remanding
based on district court’s failure to make a sufficient showing
that defendant’s situation was “exceptional”). Contreras
must therefore be resentenced.
III. CONCLUSION
For the reasons stated above, defendant Macedo’s judg-
Nos. 02-3563, 02-3564 & 02-3842 21
ment of conviction and sentence is AFFIRMED. Defendant
Contreras’s judgment of conviction is also AFFIRMED, how-
ever, his sentence is VACATED and his case is REMANDED for
resentencing consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-15-04