In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2999
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSÉ MENDOZA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:04cr00083 AS—Allen Sharp, Judge.
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ARGUED MAY 24, 2007—DECIDED DECEMBER 20, 2007
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Before POSNER, KANNE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found José Mendoza
guilty of distributing amphetamine in violation of 21
U.S.C. § 841(a)(1). Mendoza challenges the sufficiency of
the government’s evidence against him and the district
court’s procedure for identifying alternate jurors. He
also argues that the district court erroneously presumed
that a sentence within the guidelines range would be
reasonable. We affirm.
I.
The evidence presented by the government, viewed in the
light most favorable to it, demonstrated the following: In
2 No. 06-2999
early 2004 the head of the drug unit of the Goshen,
Indiana Police Department (“GPD”) asked Adam Mingucha
whether he could buy narcotics from Mendoza. Mingucha
had previously “worked off ” drug possession charges by
assisting the GPD as a confidential informant in two
other cases. At this time, however, there were no pending
charges against Mingucha. He agreed to help because he
needed the money.
Mingucha told the GPD that he knew Mendoza and that
he could likely purchase a pound of either methamphet-
amine (“meth”) or marijuana from him. When Mendoza
came into the auto repair shop where Mingucha worked
in February 2004, Mingucha asked if he could buy a
pound of meth. Mendoza responded that it would take
a couple of weeks. Two weeks later Mendoza called
Mingucha to tell him the meth was ready and at that
time they agreed on a price of $5,500. Mingucha then
informed the GPD of the pending sale.
The “pickup” was scheduled for March 5, 2004. Mingucha
first met with GPD officers and a special agent from the
Drug Enforcement Agency (“DEA”) in the parking lot of
a doctor’s office. The officers searched Mingucha and his
car, and gave him a hidden recording device and $5,500
cash. Mingucha then called Mendoza to tell him he had
the money and was ready to make the purchase. Mendoza
instructed Mingucha to meet him at a house. While
en route, Mendoza called again and changed the meeting
place to a gas station. Police followed Mingucha at a
distance, observing him at all times.
Mendoza and Mingucha met at the gas station and
Mendoza instructed Mingucha to follow him in his car,
without revealing the destination. Mingucha then fol-
lowed Mendoza to the parking lot of a grocery store.
Mendoza arrived first and parked on one side of the
building; Mingucha parked on the opposite side. The
No. 06-2999 3
contingent of law enforcement officers following Mingucha
parked in various places, but none of them individually
could see the entirety of what followed. Mendoza walked
up to the driver’s side of Mingucha’s car and Mingucha
handed him $5,500 cash through the window. Mendoza
then told Mingucha to drive to the other side of the store
where he had parked. Mingucha did so and parked along-
side a red Jeep that had its hood up. Mendoza came
around from the front of the Jeep and entered Mingucha’s
car on the passenger side, sat down, and placed a package
on the seat.
After Mendoza got out of the car, Mingucha drove
directly back to the doctor’s office to meet with the GPD.
The officers searched Mingucha and his car again, finding
nothing other than the package and the absence of the
money. The DEA agent sent the package to a DEA labora-
tory where a chemist found that it was a mixture con-
taining 16%, or 73.7g, amphetamine.
At the beginning of his trial on the charge of distributing
amphetamine in violation of 21 U.S.C. § 841(a)(1), the
district court informed counsel that it intended to select
16 tentative jurors to hear the evidence and, after closing
arguments, designate four at random to be the alternates.
During voir dire, the district court noted that this
system “seems to work very well for everybody, and it has
been in use here for close to 25 years.” The procedure,
however, happened to result in the clerk randomly desig-
nating the one Hispanic among the 16 tentative jurors
as an alternate juror. The jury then found Mendoza guilty.
Mendoza filed motions for judgment of acquittal and for
a new trial under Federal Rules of Criminal Procedure 29
and 33, and the district court denied both motions.
The district court filed a sentencing memorandum and
held a sentencing hearing in July 2006. Although the
memorandum did not suggest that the district court
4 No. 06-2999
presumed a sentence within the guidelines range would
be reasonable, at the hearing the district court said the
following about the presumptive effect of the guidelines:
There is a discussion presented by the able defense
counsel and one that this court must work through
under the current status of the law, and that is the
consideration of the case, not only under the Guide-
lines, which are presumptively correct, but also under
the statute under [sic] 18 U.S. Code Section 3553(a).
The district court sentenced Mendoza to 135 months’
imprisonment, a sentence at the bottom of the guidelines
range. Mendoza timely appeals both his conviction and
sentence.
II.
A.
Mendoza first argues that the evidence against him is
insufficient to prove that he knowingly or intentionally
distributed a controlled substance in violation of 21 U.S.C.
§ 841(a)(1). In order to prove Mendoza was guilty of
distribution of amphetamine, the government had to
show that Mendoza distributed amphetamine to a third
party, that he did so knowingly and intentionally, and
that he knew he was distributing a controlled substance.
See United States v. King, 356 F.3d 774, 779 (7th Cir.
2004). We review challenges to the sufficiency of the
evidence to determine “whether, after viewing the evid-
ence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” See United
States v. Sachsenmaier, 491 F.3d 680, 683 (7th Cir. 2007)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
This “highly deferential standard,” United States v.
Womack, 496 F.3d 791, 794 (7th Cir. 2007), is “nearly
No. 06-2999 5
insurmountable,” United States v. Hale, 448 F.3d 971,
982 (7th Cir. 2006).
There is sufficient evidence to sustain Mendoza’s con-
viction. As to the first two elements, whether Mendoza
knowingly and intentionally distributed amphetamine, the
evidence easily surpasses the sufficiency standard.
Mendoza negotiated a price at which he was willing to
supply “meth” to Mingucha; he went to the agreed-upon
place for the drug sale; and after receiving the negotiated
amount of money for the drug, he personally placed in
Mingucha’s car a package that actually contained amphet-
amine. As for the third element, whether Mendoza knew
the package contained a controlled substance, a reason-
able jury could infer that he did. After agreeing to sell
Mingucha “meth,” Mendoza required Mingucha to go
through an elaborate and secretive procedure before
furnishing it, from which the jury could rationally infer
that Mendoza wished to avoid attracting the attention
of the authorities. The jury was therefore entitled to
conclude that Mendoza knew he was giving Mingucha a
controlled substance.
B.
Mendoza next challenges the district court’s practice of
seating 16 jurors to hear the evidence presented and
randomly selecting four individuals to be alternates after
the presentation of evidence. Although we disapprove of
this procedure, the error was harmless.
Federal Rule of Criminal Procedure 24 governs the
selection of jurors and alternates in criminal trials. This
rule provides in pertinent part that the court may impanel
alternate jurors who are identified as such and who
replace jurors in the order the alternates are selected:
6 No. 06-2999
(c) Alternate Jurors.
(1) In General. The court may impanel up to 6
alternate jurors to replace any jurors who are
unable to perform or who are disqualified from
performing their duties.
(2) Procedure.
(A) Alternate jurors must have the same quali-
fications and be selected and sworn in the
same manner as any other juror.
(B) Alternate jurors replace jurors in the same
sequence in which the alternates were se-
lected. An alternate juror who replaces a juror
has the same authority as the other jurors.
Fed. R. Crim. P. 24(c). We have said that Rule 24(c)
contemplates selection of alternates “either by the jury-box
system or by a struck-jury method in which defendants
know the sequence in which members of the pool will be
seated.” United States v. Patterson, 215 F.3d 776, 780 (7th
Cir. 2000), vacated on other grounds, 531 U.S. 1033 (2000).
Rather than seating the jury and alternates separately,
the district court seated 16 tentative jurors with the
intention of randomly naming four of them as alternates
just prior to deliberations. There may well be benefits to
selecting a jury in this manner. For example, all 16
tentative jurors may be more likely to devote their full
attention to the evidence presented given the likelihood
that they will not be selected as an alternate. If an alter-
nate replaces a juror during deliberations, the collective
knowledge of the newly constituted jury would be less
likely to suffer.
But this is not the procedure prescribed by Rule 24, nor
is this a matter entrusted to the sound discretion of the
district court. See United States v. Delgado, 350 F.3d 520,
No. 06-2999 7
524 (6th Cir. 2003) (noting compliance with Rule 24 is
exception to district court discretion in jury selection). Rule
24 assumes alternates will be selected separately
and sequentially prior to the presentation of evidence
and provides for additional peremptory challenges for the
parties to use specifically against potential alternates. By
delaying the identification of the alternates until after the
parties presented evidence, the district court erred. See
Delgado, 350 F.3d at 525; United States v. Sogomonian,
247 F.3d 348, 352-53 (2d Cir. 2001); United States v.
Brewer, 199 F.3d 1283, 1287 (11th Cir. 2000); United
States v. Love, 134 F.3d 595, 601 (4th Cir. 1998); United
States v. Olano, 62 F.3d 1180, 1190 n.3 (9th Cir. 1995). As
a result, Mendoza was unable to exercise peremptory
challenges specifically against alternate jurors. See Fed. R.
Crim. P. 24(c)(4). Notwithstanding the logic of this prac-
tice and its vintage in the district court, we must join
with our sister circuits in “encouraging strict adherence”
to the rule, and we now request that the district court
discontinue its current practice. Delgado, 350 F.3d at 525;
Love, 134 F.3d at 601 (quoting United States v. Sivils, 960
F.2d 587, 594 (6th Cir. 1992)).
Deviation from the commands of Rule 24 requires
reversal only if the error affects the defendant’s substan-
tial rights. See Fed. R. Crim. P. 52(a). We held in Patterson
that generally the loss of a peremptory challenge does
not constitute the deprivation of a substantial right. See
Patterson, 215 F.3d at 781-82. Only if the loss has a
“substantial and injurious effect or influence in determin-
ing the jury’s verdict” does the loss of a peremptory
challenge amount to reversible error. Id. at 782 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Because peremptory challenges exist principally to safe-
guard the Sixth Amendment’s guarantee of trial by an
impartial jury, see United States v. Martinez-Salazar,
528 U.S. 304, 316 (2000); see also Patterson, 215 F.3d at
8 No. 06-2999
779, to prevail, Mendoza must demonstrate that the jury
was not impartial.
Mendoza complains that the district court’s procedure
excluded the only Hispanic among the 16 tentative jurors
and that because this juror was among the first 12 seated,
he expected to “try the case” to this juror (despite the
district court’s warning about the procedure for select-
ing alternates). But as long as Hispanics were not system-
atically excluded from the venire (and Mendoza does not
claim they were), there is no constitutional injury. United
States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001).
Furthermore, Mendoza is not entitled to any Hispanics
on the jury, see Taylor v. Louisiana, 419 U.S. 522, 538
(1975), nor by implication is he entitled to any one in-
dividual juror. Finally, Mendoza presents no evidence
(other than the fact of conviction, which is insufficient) to
suggest that the jury was not impartial. The error was
therefore harmless.
C.
Mendoza’s final contention is that the district court
erroneously presumed that it should impose a sentence
within the guidelines range. Whether the district court
followed the proper procedures after United States v.
Booker, 543 U.S. 220 (2005), in imposing sentence is a
question of law we review de novo. United States v. Tyra,
454 F.3d 686, 687 (7th Cir. 2006).
The district court began its sentencing memorandum by
noting that “based on its own discretion, this is the
appropriate sentence in this case.” The court noted cor-
rectly that it must first calculate the appropriate guide-
lines range, see United States v. Mykytiuk, 415 F.3d 606,
607 (7th Cir. 2006), and then decide whether to impose
a sentence within the range or outside of it. In deciding
No. 06-2999 9
what sentence to impose, the district court properly looked
to the factors enumerated in 18 U.S.C. § 3553(a). See
United States v. Dean, 414 F.3d 725, 729-30 (7th Cir.
2005). It then determined that “[r]ecognizing the discretion
afforded to this Court by Booker and its progeny, this
Court declines to impose a non-guideline sentence.” At no
point in evaluating whether to impose a guidelines sen-
tence did the district court suggest in its sentencing
memorandum that it should presumptively impose one.
When read as a whole, the district court’s sentencing
memorandum reveals that it followed the proper proce-
dure in imposing sentence.
But that is not all the district court said. Mendoza points
to the district court’s oral statements at the sentencing
hearing such as the “discussion presented by the able
defense counsel . . . that is the consideration of the case,
not only under the Guidelines, which are presumptively
correct, but also under the statute under [sic] 18 U.S.
Code Section 3553(a).” Mendoza argues that this state-
ment also demonstrates the district court believed a
sentence within the guidelines range was presumptively
reasonable.
Although we recognize that the district court did not
have the benefit of the Supreme Court’s decision in Rita v.
United States, 127 S. Ct. 2456 (2007), at the time of
sentencing, taken at face value, the statement that in the
district court guideline sentences are “presumptively
correct” is wrong. Only at the appellate level is a sentence
within the guidelines presumptively reasonable. Rita, 127
S. Ct. at 2465. District courts are required to sentence
defendants without any preference for or against a sen-
tence within the guidelines. Sachsenmaier, 491 F.3d
at 685.
But we do not view this oral statement as indicating
that the district court sentenced Mendoza under the
10 No. 06-2999
mistaken belief that a sentence within the guidelines is
presumptively correct. First, the district court’s oral
statement merely characterized the “discussion presented
by able defense counsel.” The district court said several
times that its views were contained in the written memo-
randum and that its oral statements were only a sum-
mary. Moreover, a sentencing memorandum is usually
a better memorialization of the road taken by the dis-
trict court in arriving at an appropriate sentence than
oral statements made during the sentencing hearing. In
addition to facilitating review, one of the reasons
judges are called upon to write is the salutary effect that
writing has upon precise and logical thinking. See Richard
A. Posner, Judges’ Writing Styles (And Do They Matter?)
62 U. Chi. L. Rev. 1421, 1447-48 (1995). For these reasons
we have often said that a writing is the preferred method
for making findings of relevant conduct. United States v.
Ortiz, 431 F.3d 1035, 1042-43 (7th Cir. 2005); United
States v. Arroyo, 406 F.3d 881, 889 (7th Cir. 2005); United
States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991).
Under these circumstances, we conclude that the writ-
ten reasons in the sentencing memorandum reflect the
district court’s rationale in selecting a sentence and that
they constitute the “actual reasons given” for the sen-
tence imposed. See United States v. Ross, 501 F.3d 851,
854 (7th Cir. 2007). As there is no indication in the
sentencing memorandum that the district court presumed
that a sentence within the guidelines range would be
reasonable, we find no error in the district court’s im-
position of sentence.
III.
For the reasons stated above, the judgment of the
district court is AFFIRMED.
No. 06-2999 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-20-07