UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 11, 2005
Decided August 17, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2673
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 02 CR 924-3
FRANCISCO QUINONES,
Defendant-Appellant. Joan B. Gottschall,
Judge.
ORDER
A jury convicted Francisco Quinones of conspiracy to distribute over 5
kilograms of cocaine, 21 U.S.C. §§ 846, 841(a)(1), and possession with intent to
distribute over 5 kilograms of cocaine, id. § 841(a)(1). The district court imposed the
minimum statutory sentence of 120 months’ imprisonment, 5 years’ supervised
release, and $200 in special assessments. Quinones filed a notice of appeal, but his
appointed lawyer moves to withdraw because he cannot discern a nonfrivolous basis
for appeal. See Anders v. California, 386 U.S. 738 (1967). Because counsel’s
submissions are facially adequate, we limit our review to the potential issues
counsel identifies, of which only a few warrant discussion, along with the issue
suggested in Quinones’s response filed under Circuit Rule 51(b). See United States
v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam). We conclude that those
potential issues are frivolous and thus grant counsel’s motion to withdraw and
dismiss Quinones’s appeal.
No. 04-2673 Page 2
Quinones was arrested along with Manual Medina and Jesus Gutierrez-Ruiz
after officers witnessed a cocaine transaction between the three men and an
informant. The informant had arranged through telephone calls with Medina to
meet at a gas station in Chicago to deliver 150 kilograms. Along with Medina,
Gutierrez-Ruiz and Quinones were waiting there. When the informant arrived in
his van, Quinones climbed in and directed him to follow the car Gutierrez-Ruiz was
driving to his residence. Medina drove away separately to obtain money to complete
the drug deal. While in the van with the informant, Quinones responded
affirmatively to the informant’s statements about having already counted “them”
(referring to the bricks of cocaine) to make sure it was all there. The two vehicles
stopped briefly before reaching the planned destination so that Gutierrez-Ruiz could
switch places with Quinones, who under orders from Gutierrez-Ruiz drove his car to
the restaurant where Quinones was told to wait. Gutierrez-Ruiz continued on to his
house in the van with the informant. When they arrived there, the two began
unloading the cocaine from the van. Surveillance officers observing the exchange
and listening to their conversation then arrested Gutierrez-Ruiz at the house. The
officers next arrested the other two conspirators when Medina stopped at the
restaurant to pick up Quinones. On Medina the officers found the cell phone the
informant had been calling to arrange the drug deal, and the officers seized from
Medina’s car a drug ledger and a bag of $79,140 in currency. Quinones, during
questioning by the officers after his arrest, changed his story several times, first
stating that he was waiting to go to a ranch to ride horses, then that he was waiting
for someone, and finally that he thought the group was involved only with
counterfeit money.
The jury returned a special verdict finding the drug amount to be in excess of
5 kilograms of cocaine. At sentencing the district court found that Quinones could
not have foreseen the full scope of the transaction and was only a minor participant.
See U.S.S.G. § 3B1.2(b). Still, the court concluded that Quinones obstructed justice
during the prosecution by lying on the witness stand at trial. See id. § 3C1.1. The
court calculated a guideline range of 97 to 121 months’ imprisonment but, based on
the jury’s special verdict, the court sentenced Quinones to the statutory minimum
penalty.
Counsel first contemplates challenging the sufficiency of the evidence, but
concludes, as do we, that the argument would be frivolous despite Quinones’s
limited involvement. We will reverse a conviction only if the record is devoid of any
evidence, regardless of how it was weighed, that would support a finding of guilt
beyond a reasonable doubt. United States v. Hernandez, 330 F.3d 964, 976 (7th
Cir. 2003). To convict under § 846, the government need only prove that the
defendant knowingly joined in an agreement to violate the drug laws. See United
States v. Macedo, 406 F.3d 778, 791 (7th Cir. 2005). A drug conspiracy may be
established circumstantially through evidence of “the parties’ relationships, their
overt acts, and their overall conduct.” United States v. Navarrete, 125 F.3d 559,
No. 04-2673 Page 3
562 (7th Cir. 1997). Proof of the defendant’s participation in a conspiracy is also
enough to convict him for reasonably foreseeable substantive offenses committed in
furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S. 640, 647-48
(1946); United States v. Stotts, 323 F.3d 520, 523 (7th Cir. 2003).
In this case, evidence of Medina’s and Gutierrez-Ruiz’s guilt is overwhelming
based on the officers’ visual and electronic surveillance, the recordings of the
informant’s telephone calls with Medina setting up the deal, and the currency found
in Medina’s car. With that background, any rational jury could have reasonably
concluded that Quinones was also involved in the conspiracy given his presence at
the initial meeting place, his role in directing the informant in the van to follow
Gutierrez-Ruiz, and his conversation with the informant about the bricks of cocaine.
See United States v. Parra, 402 F.3d 752, 761 (7th Cir. 2005) (explaining that
participation in conspiracy cannot reasonably be inferred from “mere presence” but
can be inferred if other evidence establishes that defendant’s presence was
intended to advance conspiracy’s objectives). The government also established that
several calls from Medina were placed to the cell phone that Quinones was found
carrying at key times—before the arrival of the van at the gas station and while
Quinones was in the van directing the informant to follow Gutierrez-Ruiz—from
which Quinones’s participation in the drug deal could be inferred. And in finding
that Quinones was a participant the jury was free to give weight to his inconsistent
statements to arresting officers and his purported failure to remember certain cell
phone calls during cross-examination at trial. See United States v. Williams, 136
F.3d 1166, 1168 (7th Cir. 1999) (rejecting challenge to sufficiency of the evidence in
part because defendant’s own testimony “reeks of implausibility”).
Likewise, as counsel acknowledges, an argument challenging the district
court’s denial of Quinones’s general motion to suppress “evidence and statements”
obtained as a result of his supposedly illegal arrest would also be frivolous. What
the officers observed and overheard was enough to convict, so that information
established probable cause to arrest Quinones. In any event, nothing except
Quinones’s post-arrest statements and possibly his cell phone were even arguably
subject to suppression. And Quinones could not challenge the admission of the
cocaine; his privacy interests were not affected because the cocaine was not seized
from him. See Rakas v. Illinois, 439 U.S. 128, 134 (1978) (“A person who is
aggrieved by an illegal search and seizure only through the introduction of
damaging evidence secured by a search of a third person's premises or property has
not had any of his Fourth Amendment rights infringed.”).
Counsel also considers challenging as an abuse of discretion the district
court’s acceptance of Officer Robert Coleman as an expert witness on the structure
and process of drug trafficking. Police officers have long been allowed to give expert
testimony about the nature, structure, and characteristics of drug trafficking, and
there was no evidence that Coleman’s testimony was unreliable or irrelevant; we
No. 04-2673 Page 4
agree with counsel that such an argument would be frivolous. See United States v.
Cruz-Velasco, 224 F.3d 656, 660 (7th Cir. 2000).
Quinones’s sentence at the statutory minimum also makes frivolous any
argument under Apprendi v. New Jersey, 530 U.S. 466 (2000), or United States v.
Booker, 125 S. Ct. 738 (2005). Putting aside that drug type and quantity were
submitted and found by the jury, Quinones’s sentence was well below the default
statutory maximum for any amount of cocaine, 21 U.S.C. § 841(b)(1)(c). And though
he was sentenced at the statutory minimum, mandatory minimum terms implicate
neither Apprendi, see Harris v. United States, 536 U.S. 545 (2002), nor Booker, see
United States v. Duncan, 413 F.3d 680, 683 (7th Cir. 2005); United States v. Lee,
399 F.3d 864, 866 (7th Cir. 2005).
Finally, in his Rule 51(b) response, Quinones asserts that the district court
should have accepted a plea agreement presented to the court before trial. The
agreement would have made Quinones eligible for relief under the “safety valve”
and allowed for a sentence below the statutory minimum penalty. See 18 U.S.C.
§ 3553(f); U.S.S.G. § 5C1.2; United States v. Montes, 381 F.3d 631, 634 (7th Cir.
2004) (“The ‘safety valve’ provision permits a court to sentence certain first-time,
non-violent drug offenders who were not organizers of criminal activity and who
made a good faith effort to cooperate with the Government to a sentence under the
federal guidelines instead of the applicable statutory mandatory minimum
sentence.”). As counsel clarifies in a supplement to his Anders brief, Quinones
misunderstands what occurred at the change-of-plea hearing. The district court did
not have an opportunity to decide whether to accept Quinones’s guilty plea; rather,
Quinones preempted that decision by announcing during the plea colloquy that he
had changed his mind about pleading guilty and wanted to instead go trial.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.