In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2404
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARTIN A VILA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 CR 141—David F. Hamilton, Chief Judge.
A RGUED O CTOBER 29, 2008—D ECIDED M ARCH 6, 2009
Before P OSNER, M ANION, and K ANNE, Circuit Judges.
K ANNE, Circuit Judge. From 2000 to 2001, law enforce-
ment officers conducted an investigation that revealed
extensive drug trafficking activities in the Indianapolis
area. An organization comprised primarily of Mexican
nationals was obtaining large amounts of controlled
substances from individuals in Mexico, Texas, and Illinois,
and redistributing the drugs throughout parts of Indiana.
On October 17, 2002, defendant Martin Avila and eight
other individuals were indicted for their roles in the
2 No. 07-2404
conspiracy. Avila was tried alone in a two-day jury trial
and convicted on March 13, 2007. He was sentenced to
396 months’ imprisonment and ten years of supervised
release. Avila appeals his conviction and sentence. He
argues (1) that he was prejudiced by a fatal variance
between the charged crime and the proof adduced at trial;
(2) that the district court erred in admitting several wit-
nesses’ testimony or comments; and (3) that the Sen-
tencing Guidelines range imposed was inaccurate. For
the reasons that follow, we affirm Avila’s conviction
and remand for resentencing.
I. B ACKGROUND
In mid-2000, the Federal Bureau of Investigation, Immi-
gration and Naturalization Services,1 Indianapolis Police
Department, and Metropolitan Drug Task Force began
investigating the drug trafficking activities of a Mexican
drug organization. Law enforcement determined that
members of this organization were obtaining large
amounts of controlled substances, including metham-
phetamine, cocaine, marijuana, and amphetamine, from
individuals in Mexico, Texas, and Illinois. They were
then distributing the drugs throughout areas in Indiana
surrounding Indianapolis. Martin Avila, Fidelmar Soto-
Nava, Wilbert Avant, Rene Nava-Rubio, and Hilario
Espinoza-Sarco were all identified as potential members
of the organization.
1
This agency has been known since 2003 as the Bureau of
Immigration and Customs Enforcement. It was known as the
INS at the time of this investigation.
No. 07-2404 3
From March through August of 2001, officers utilized
court-authorized wiretaps to monitor cellular telephones
linked to Soto-Nava and Nava-Rubio. In several of the
intercepted conversations, Avila discussed the sale of
drugs with Nava-Rubio using code language. At times,
Avila also spoke briefly with Soto-Nava, although it does
not appear from the record that they discussed drug
distribution. Seventeen of these recordings would later
be admitted into evidence at Avila’s trial.
On October 17, 2002, Avila and eight other members of
the organization were indicted for conspiracy to distrib-
ute and/or possess with the intent to distribute num-
erous controlled substances. Specifically, the grand jury
charged that Avila and his co-conspirators distributed
500 grams or more of a mixture or substance containing
methamphetamine, 50 grams or more of methamphet-
amine, 500 grams or more of a mixture or substance
containing a detectable amount of cocaine, and 100 kilo-
grams or more of a mixture or substance containing a
detectable amount of marijuana.
Avila’s jury trial began on March 12, 2007. In his opening
statement, Avila’s counsel claimed that this was a case
of mistaken identity. He conceded that there was signifi-
cant evidence of a conspiracy, but he argued that Avila
had never had contact with Nava-Rubio and that he
had no role in the alleged conspiracy.
In its case-in-chief, the government called two law
enforcement officers who had been involved in the in-
vestigation, Jo Ann Burkhart and Michael Reeves.
Burkhart, an FBI special agent in Indianapolis, testified
4 No. 07-2404
that law enforcement personnel had discovered the drug
operation and eventually seized large quantities of meth-
amphetamine, marijuana, cocaine, and amphetamine.
She also explained the monitoring of Soto-Nava’s and
Nava-Rubio’s phones.
Reeves, an INS agent at the time of the investigation,
testified that he was working undercover in Indianapolis
in 2001. While undercover, Reeves purchased metham-
phetamine from Soto-Nava at least twice, once on a
consignment basis. He also testified that after Soto-Nava
was incarcerated, he continued to purchase drugs from
Soto-Nava’s common-law wife and another young man.
The government also called two of Avila’s co-defen-
dants—Avant and Nava-Rubio. Avant testified that he
was selling drugs in Indianapolis in 2000 and 2001. Avant
originally had been receiving drugs from Soto-Nava and
Nava-Rubio. At some point, however, Soto-Nava intro-
duced Avant to Avila so that Avant could obtain larger
quantities of cocaine. Avant never testified to whether
Avila knew that this was the purpose of the introduction.
Avant testified that in 2000 and 2001, Avila supplied
him with approximately 3 to 4 pounds of methamphet-
amine and 5 to 6 kilograms of cocaine per month, as well as
a total of 500 pounds of marijuana. Avila sold these drugs
to Avant on a consignment basis. Avila would deliver
the drugs himself or have someone else deliver them,
often using hidden compartments in automobiles to
conceal the drugs.
Nava-Rubio testified that Avila, who was living in
Chicago, asked Nava-Rubio to sell drugs for him in
No. 07-2404 5
Indiana and provided him with the drugs on consignment.
Avila or someone working for him—such as Hilario
Espinoza-Sarco—would transport the drugs to Indiana
using hidden compartments. Over the course of their
relationship, Avila supplied Nava-Rubio with over 100
pounds of methamphetamine, 20 to 30 kilograms of
cocaine, and 300 to 400 pounds of marijuana.
The government also used Nava-Rubio’s testimony to
authenticate and explain sixteen of the intercepted tele-
phone calls between Avila and Nava-Rubio that were
introduced into evidence and played for the jury. In one
of the telephone calls, Avila and Nava-Rubio discussed
using a hidden compartment in Avila’s car to transport
drugs. In other calls, Nava-Rubio and Avila discussed
payments for drugs that Avila had fronted to Nava-Rubio.
Nava-Rubio and Avila also discussed Nava-Rubio
selling the drugs Avila had provided him to a “white guy.”
As its final witness, the government called Sergeant
Dean Wildauer. Wildauer, a member of the Indiana State
Police criminal interdiction team, testified to the typical
use of hidden compartments in drug trafficking operations.
Avila opted not to testify or present any evidence. He
never made a motion for a judgment of acquittal, and
the jury found him guilty on March 13, 2007.
The presentence report (PSR) was provided to the
parties on May 4, 2007. The PSR indicated that the
total marijuana equivalency weight of the drugs distrib-
uted was 24,234 kilograms and recommended a Base
Offense Level of 38. The PSR also applied seven criminal
history points, four of which derived from two prior
6 No. 07-2404
convictions for possession of controlled substances.
Avila had been sentenced on the same date for each of
these cases. He had received a six-month sentence in case
94 CR 1983, and a sentence of two years’ custody in case
94 CR 670, suspended upon completion of the sentence in
94 CR 1983.
On June 8, 2007, the district court held a sentencing
hearing. Both the government and Avila indicated that
they did not object to the PSR. The district court sen-
tenced Avila to 396 months’ imprisonment, followed by
ten years of supervised release.
II. A NALYSIS
Avila raises three issues on appeal. First, he argues
that there was a fatal variance between the conspiracy
alleged in the indictment and the proof adduced at trial.
Second, he argues that the testimony of several witnesses
was irrelevant and unduly prejudicial. Specifically, he
challenges the testimony of Sergeant Wildauer and state-
ments of several witnesses relating to Avila’s guilt. 2 Avila
claims that the cumulative effect of these errors merits
reversal. Finally, Avila claims that the district court erred
in calculating the sentencing range by relying on an
2
Avila also challenges the testimony of Agent Reeves. How-
ever, this claim rests on his contention that Reeves testified to
facts regarding a separate conspiracy that Avila did not join.
Because this analysis is directly relevant to whether the
alleged variance prejudiced Avila, we will discuss it in that
context.
No. 07-2404 7
incorrect offense level and misinterpreting Avila’s crim-
inal history. We discuss each issue in turn.
A. Avila’s Variance Claim
To obtain a conspiracy conviction against a defendant,
the government must prove that (1) two or more people
agreed to commit an unlawful act, and (2) the defendant
on trial knowingly and intentionally joined in the agree-
ment. United States v. Dumes, 313 F.3d 372, 382 (7th Cir.
2002). Thus, two or more individuals conspired together
if the evidence demonstrates that they “embraced a
common criminal objective,” even if they did not know
each other or participate in every aspect of the crime.
United States v. Jones, 275 F.3d 648, 652 (7th Cir. 2001).
On the other hand, two individuals cannot be said to
have conspired together “when each of the conspirators’
agreements has its own end, and each constitutes an end
in itself.” United States v. Sababu, 891 F.2d 1308, 1322
(7th Cir. 1989). This issue often arises in the context of
“hub-and-spoke” conspiracies, where a defendant serves
as a “hub” connected to each of his co-conspirators via
a “spoke.” See United States v. Swafford, 512 F.3d 833, 842
(6th Cir. 2008), cert. denied, 129 S. Ct. 329 (2008). In this
context, we have said that to prove the existence of a
single conspiracy, “a rim must connect the spokes
together, for otherwise the conspiracy is not one but
many.” United States v. Bustamante, 493 F.3d 879, 885 (7th
Cir. 2007), cert. denied, 128 S. Ct. 1460 (2008). This “rim” is
an agreement to further a single design or purpose, a
8 No. 07-2404
characteristic that we have noted is the defining quality
of a conspiracy. United States v. Thomas, 520 F.3d 729, 733
(7th Cir. 2008). Thus, for a single, overarching conspiracy
to exist, “ ‘those people who form the wheel’s spokes
must have been aware of each other and must do some-
thing in furtherance of some single, illegal enterprise.’ ”
Bustamante, 493 F.3d at 885-86 (quoting United States
v. Levine, 546 F.2d 658, 663 (5th Cir. 1977)).
Defendants who argue that the evidence at trial estab-
lished the existence of not one conspiracy but many
often assert that a “fatal variance” exists between the
crime charged and the proof at trial. See, e.g., United
States v. Payne, 226 F.3d 792, 795 (7th Cir. 2000); United
States v. Severson, 3 F.3d 1005, 1009-10 (7th Cir. 1993). Avila
makes such a challenge here. He argues that a fatal vari-
ance exists in this case because the government
presented evidence at his trial that was relevant only to a
conspiracy that he did not join. For example, he points
to testimony of Agents Burkhart and Reeves regarding
drugs seized or purchased in controlled buys from other
Mexican nationals in the Indianapolis area with whom
Avila claims he shared no common goal or purpose.
“A variance arises when the facts proved by the gov-
ernment at trial differ from those alleged in the indict-
ment.” United States v. Stigler, 413 F.3d 588, 592 (7th Cir.
2005). We treat a conspiracy variance claim as nothing
more than a challenge to the sufficiency of the evidence
supporting the jury’s finding of a conspiracy. United
States v. Nitch, 477 F.3d 933, 936 (7th Cir. 2007), cert. denied,
127 S. Ct. 3024 (2007); United States v. Townsend, 924
No. 07-2404 9
F.2d 1385, 1389 (7th Cir. 1991). Thus, to prevail Avila must
show that (1) the evidence at trial was insufficient to
support a finding that he belonged to a single con-
spiracy, and (2) he was prejudiced by the variance.
Stigler, 413 F.3d at 592.
Under ordinary circumstances, “[s]ufficiency of the
evidence challenges rarely succeed because we owe
great deference to the jury’s verdict.” United States v.
Melendez, 401 F.3d 851, 854 (7th Cir. 2005). In this case,
Avila faces an even higher burden because he failed to
move for a judgment of acquittal. See United States v.
Meadows, 91 F.3d 851, 854 (7th Cir. 1996). Therefore, our
review is for plain error, and we will reverse Avila’s
conviction only if a miscarriage of justice occurred “ ‘of
such magnitude that [Avila] probably would have been
acquitted absent the error.’ ” Id. (quoting United States v.
Valencia, 907 F.2d 671, 685 (7th Cir. 1990)).
Avila argues that his conviction must be reversed
because (1) there was insufficient evidence to show that
he belonged to any conspiracy, and (2) he was prejudiced
by the admission of evidence of a large-scale con-
spiracy that he did not join. For the reasons that follow,
we reject both of his arguments.
1. Whether Sufficient Evidence Established that Avila Joined
a Single Conspiracy
In order to prove that Avila participated in a conspiracy,
the government must prove that he knowingly and inten-
tionally joined in an agreement with one or more other
10 No. 07-2404
individuals to commit an unlawful act. United States v.
Gardner, 238 F.3d 878, 879 (7th Cir. 2001). We have recog-
nized that the sale of drugs, without more, does not
constitute a conspiracy because the sale itself is a sub-
stantive crime. United States v. Clay, 37 F.3d 338, 341 (7th
Cir. 1994). Thus, “the government must prove that the
defendant conspired to commit some crime beyond that
agreement to sell drugs.” United States v. Rock, 370 F.3d
712, 714 (7th Cir. 2004).
As we have often noted, “[a]n agreement need not be
explicit; a tacit agreement may support a conspiracy
conviction.” United States v. Handlin, 366 F.3d 584, 589
(7th Cir. 2004); see also United States v. Messino, 382 F.3d 704,
709 (7th Cir. 2004). Furthermore, the government need
not present any direct evidence of the agreement; circum-
stantial evidence alone will suffice. United States v.
Zarnes, 33 F.3d 1454, 1465 (7th Cir. 1994). Such evidence
may include sales of large amounts of drugs, prolonged
cooperation, a level of mutual trust between the parties,
standardized dealings, and sales on a consignment or
“fronted” basis. See, e.g., Bustamante, 493 F.3d at 884-85;
United States v. Contreras, 249 F.3d 595, 599 (7th Cir. 2001);
Zarnes, 33 F.3d at 1465.
Proving that Avila joined the conspiracy alleged in the
indictment does not require that the government prove he
conspired with the individuals named in the indictment.
The key to proving a conspiracy is that the defendant
joined the agreement, not the group. Townsend, 924 F.2d at
1389-90. Thus, the government need not establish with
whom the defendant conspired. Contreras, 249 F.3d at 598.
No. 07-2404 11
It need only prove that the defendant conspired with
anyone to commit the crime charged in the indictment.
See Townsend, 924 F.2d at 1389.
Avila claims that the government failed to meet its
burden at trial because it did not prove that he con-
spired to commit some crime beyond an agreement to
sell drugs to Avant and Nava-Rubio. He also implies that
the “single design or purpose” defining a conspiracy
must be more specific than simply to further distribute
drugs. He cites as an example the “singular purpose of
the agreement” in Thomas, which was “to transform
this block of West 50th Place into what was essentially
an open-air drug bazaar.” 520 F.3d at 733-34. Such a
specific purpose is not required, however.
All that is necessary to establish a drug distribution
conspiracy is an understanding related to the sub-
sequent distribution of narcotics. Clay, 37 F.3d at 341. The
government need only show an agreement that goes
beyond the individual sale between buyer and seller.
See Rock, 370 F.3d at 714.
Here, there is substantial evidence that Avila expected
and encouraged Avant and Nava-Rubio to redistribute
the drugs he had provided. Avila always fronted the
drugs to both Nava-Rubio and Avant. Nava-Rubio
testified that over the course of their relationship, Avila
fronted him 100 pounds of methamphetamine, 20 to 30
kilograms of cocaine, and 300 to 400 pounds of marijuana.
Similarly, Avant testified that Avila fronted him 3 to 4
pounds of methamphetamine per month, 5 to 6 kilograms
of cocaine per month, and 500 total pounds of marijuana.
12 No. 07-2404
Because Avila fronted these drugs in return for pay-
ment after Nava-Rubio and Avant sold them, he was
dependent upon the further resale of the drugs to make
a profit.
The evidence also established that Avila demonstrated a
high level of trust and confidence in Avant and Nava-
Rubio. He provided both with large quantities of drugs
without requiring any payment until the drugs were
resold. In one of the intercepted calls, he told Nava-Rubio
about a car with a hidden compartment and described
how he had used it to transport drugs on a previous
occasion. It is unlikely that Avila would have acted this
way with Avant or Nava-Rubio if they were engaged in
a mere buyer-seller relationship.
Furthermore, the defendant’s own conversations with
Nava-Rubio reveal the conspiratorial nature of their
relationship. During one of the intercepted conversations,
Nava-Rubio and Avila discussed Nava-Rubio selling
the methamphetamine Avila had fronted him to a “white
guy,” and Avila told Nava-Rubio to send the money
back with Espinoza-Sarco. Given this exchange, Avila
cannot reasonably deny that he intended for the drugs to
be resold.
The large amounts of drugs, the sales on consignment,
the level of trust and confidence, and the explicit discus-
sions of redistribution all provide overwhelming
evidence of Avila’s conspiratorial relationships with
Avant, Nava-Rubio, and Espinoza-Sarco.
In addition, the evidence supports the jury’s finding
that Avila engaged in the specific crime charged in the
No. 07-2404 13
indictment: an agreement to distribute 500 grams or more
of a mixture or substance containing methamphetamine,
50 grams or more of methamphetamine, 500 grams or
more of a mixture or substance containing a detectable
amount of cocaine,3 and 100 kilograms or more of a mix-
ture or substance containing a detectable amount of
marijuana. The evidence established that Avila sold Nava-
Rubio over 45 kilograms of methamphetamine, 20 to
30 kilograms of cocaine, and approximately 136 to
181 kilograms of marijuana.4 Avila sold Avant 1361 to
1814 grams of methamphetamine per month, 5 to 6 kilo-
grams of cocaine per month, and 227 total kilograms
of marijuana.5 Even if Avila supplied Avant for only one
month, this would add up to, at a minimum, 46 kilo-
grams of methamphetamine, 25 kilograms of cocaine,
and 362 kilograms or more of marijuana.6 Because this
clearly exceeds the amount of drugs charged in the in-
3
One kilogram contains 1,000 grams. Thus, even one kilogram
each of methamphetamine and cocaine would exceed the
amounts charged in the indictment.
4
Rounded to the nearest kilogram, 45 kilograms is equivalent
to 100 pounds, 136 kilograms is equivalent to 300 pounds,
and 181 kilograms is equivalent to 400 pounds.
5
Rounded to the nearest gram, 1361 grams is equivalent to
three pounds and 1814 grams is equivalent to four pounds.
Rounded to the nearest kilogram, 227 kilograms is equivalent
to 500 pounds.
6
These estimates are conservative, using the lowest quantity
supported by the testimony and rounding down to the
nearest kilogram.
14 No. 07-2404
dictment, there is ample evidence to support the jury’s
verdict that Avila engaged in the charged conspiracy.
2. Whether Avila Was Prejudiced by Evidence of a Conspir-
acy He Did Not Join
Avila claims that he was prejudiced at trial because
the prosecution presented evidence that was relevant
only to a conspiracy that he did not join. Avila cites the
following to support his claim: (1) testimony of Agent
Burkhart that a large-scale drug organization of Mexican
nationals existed in Indianapolis and that the FBI had
seized large quantities of drugs from numerous mem-
bers of that organization; (2) testimony of Agent Reeves
that he had made several undercover drug purchases
from Soto-Nava on a consignment basis; and (3) state-
ments by Burkhart, Reeves, Avant, and Nava-Rubio that
Avila was working in a “drug dealing enterprise.” 7 Avila
argues that he was prejudiced by the inclusion of this
inadmissible evidence in the government’s case. He
also argues that the errors affected his sentence.
We need not decide whether this evidence was ad-
missible because, as described below, Avila did not suffer
any prejudice. We should note, however, that Avila’s
claims regarding the improper testimony are not entirely
without merit. Specifically, Agents Burkhart and Reeves
testified to drug activities with which Avila had little or
7
We will discuss the third argument in detail in the context
of Avila’s evidentiary challenges.
No. 07-2404 15
no demonstrated connection. As noted above, although
a defendant does not need to know with whom he is
conspiring to be convicted of conspiracy, Jones, 275 F.3d
at 652, co-conspirators “ ‘must have been aware of each
other and must do something in furtherance of some
single, illegal enterprise,’ ” Bustamante, 493 F.3d at 885-86
(quoting Levine, 546 F.2d at 663). We do not agree with
the government that the testimony of Agents Burkhart
and Reeves meets this standard.
For example, Agent Burkhart did not state from whom
the quantities of drugs she described were seized, nor
did she connect those drugs to Avila. Without any ex-
planation as to the origin of the drugs seized, there is no
evidence that Avila engaged with the distributors of
these drugs in a single illegal enterprise or shared with
them some common goal. Absent this connection, the
government provided no evidence to explain how Avila
conspired to possess or distribute the seized drugs.
The testimony of Agent Reeves regarding undercover
drug purchases made from Soto-Nava was similarly
questionable. One recorded telephone call revealed a
conversation between Avila and Soto-Nava, but they
did not discuss drugs. Avant testified that he had ob-
tained drugs from Soto-Nava and that Soto-Nava intro-
duced him to Avila. He stated that the purpose of this
introduction was so that Avant could obtain more
drugs. However, Avant’s testimony did not establish
that Avila knew that Avant had other suppliers or that
Avila and Soto-Nava worked together in any common
enterprise. Simply demonstrating that both distributed
16 No. 07-2404
drugs to the same individuals is not sufficient to show
that they conspired together. See id.
Regardless of whether this evidence was admissible,
however, Avila cannot succeed on his claim because he
did not suffer any prejudice from its introduction at trial.
As described above, to obtain a reversal, Avila must
show that he was prejudiced by the alleged variance.
Stigler, 413 F.3d at 592. Because a variance may prejudice
a defendant both at trial and at sentencing, we analyze
the effect of the evidence on both Avila’s conviction
and sentence. See Bustamante, 493 F.3d at 887.
First, we hold that Avila’s conviction was not a result of
prejudice from the irrelevant evidence. As noted above,
because our review is for plain error, we will reverse
Avila’s conviction only if a miscarriage of justice
occurred “ ‘of such magnitude that [Avila] probably
would have been acquitted absent the error.’ ” Meadows,
91 F.3d at 854 (quoting Valencia, 907 F.2d at 685).
It is highly unlikely that Avila would have been acquit-
ted had Agents Burkhart and Reeves been prevented
from testifying about these drug transactions or sei-
zures. As described above, the record is replete with
evidence that Avila conspired with Avant, Nava-Rubio,
and Espinoza-Sarco to distribute large amounts of drugs.
Avila used Espinoza-Sarco to deliver drugs on his
behalf and collect the money. He “fronted” Avant and
Nava-Rubio large amounts of drugs for no payment in
advance. The testimony regarding Avila’s drug dealings
alone was enough to support the jury’s verdict.
No. 07-2404 17
Furthermore, we have previously held that a defendant
was not prejudiced by a variance where “ ‘the jury had
no need to look beyond [the] defendant’s own words in
order to convict.’ ” Bustamante, 493 F.3d at 887 (quoting
Townsend, 924 F.2d at 1411). Where the government pro-
duced recorded conversations of the defendants directly
discussing drug transactions with their co-conspirators,
we have noted that this evidence alone was sufficient to
support the jury’s finding. See id.; Townsend, 924 F.2d
at 1411. Similarly here, the jury could hear for itself that
Avila discussed with Nava-Rubio the sale of drugs to
the “white guy.” This evidence alone was sufficient to
support the jury’s finding, and we see no prejudice from
admitting the testimony of Agents Burkhart and Reeves.
Nor are we persuaded that Avila was prejudiced in his
sentence. Although the PSR recited the quantities of drugs
that were seized from the entire drug organization, these
quantities were not factored into the Guidelines range
applied.8 Instead, the range was apparently based on
the quantities of drugs listed in paragraph 13 of the PSR—
the drugs that Avila supplied to Avant.
Avila also claims that the court relied on the improper
evidence when it noted that the sentence “reflects the
8
Although the Guidelines range was incorrectly calculated, see
infra Section II.C, this was not a result of the claimed variance.
There is no evidence from the PSR that the range was
increased due to the quantities of drugs seized from other
members of the alleged conspiracy. We discuss this error in
detail later in this opinion.
18 No. 07-2404
defendant’s high level of involvement in the conspiracy,
as well as his repeated violations of the law and his role
in the distribution of huge quantities of drugs in central
Indiana and elsewhere.” (Sent. Hr’g at 25.) However, this
does not demonstrate that the court based Avila’s sen-
tence on anything other than the drugs he supplied to
Avant and Nava-Rubio, and Avila’s criminal history.
The quantities of drugs in those transactions were sub-
stantial, and there is no doubt that Avila played a key
role in orchestrating the deals.
We also are unconvinced by Avila’s argument that he
was prejudiced in his sentence because the prosecutor
urged the judge to rely on improper evidence. Although
the prosecutor advocated a long sentence because of “the
amount of harm [Avila] did by being part of this conspir-
acy that pumped so much poison into our community,”
and to avoid “unwarranted disparities” with his alleged
co-conspirators, Avila cites nothing from the judge in-
dicating that he relied on these arguments in imposing
the sentence. The judge’s comments during sentencing
were well-supported by Avila’s own actions, his prior
criminal history, and his demonstrated disrespect for
the law. Nothing in the sentencing hearing sug-
gests that had the judge refused to admit the improper
evidence, he would have imposed a different sentence.
In sum, we find ample support for the jury’s verdict that
Avila was a member of the conspiracy charged in the
indictment. The record contains direct testimony that
Avila himself distributed drugs in quantities that exceeded
those charged in the indictment. Furthermore, Avila’s
No. 07-2404 19
relationships with Avant and Nava-Rubio reveal that
they were not simply engaged in a buyer-seller relation-
ship. Because this evidence supports the jury’s verdict,
Avila was not prejudiced at trial by the admission of
any evidence of a separate conspiracy. Nor was he preju-
diced at his sentencing, because the judge’s reasoning
was well-supported by evidence of drug transactions
directly attributable to Avila.
B. Avila’s Evidentiary Challenges
Avila also challenges the testimony of several govern-
ment witnesses as irrelevant and unduly prejudicial.
Ordinarily, we review a district court’s evidentiary
rulings for an abuse of discretion. United States v. Hale,
448 F.3d 971, 985 (7th Cir. 2006). However, Avila never
objected to any of the challenged testimony at trial. Where
a party has failed to raise an objection at trial, our
review is only for plain error, United States v. Swan, 486
F.3d 260, 263 (7th Cir. 2007), and we will reverse only if
the errors resulted in an “actual miscarriage of justice”
such that the defendant “probably would have been
acquitted but for the erroneously admitted evidence,”
United States v. Price, 418 F.3d 771, 779 (7th Cir. 2005)
(quotations omitted).
First, Avila claims that testimony of Sergeant Wildauer
regarding the use of hidden compartments in drug traf-
ficking was irrelevant and unduly prejudicial. Next, he
claims that several witnesses gave prejudicial and im-
proper legal opinions that Avila participated in the
charged conspiracy. He claims that the cumulative effect
20 No. 07-2404
of these errors deprived him of a fair trial. We address
each argument in turn.
1. Testimony of Sergeant Wildauer
At trial, the government called Sergeant Wildauer to
testify to the use of hidden compartments in drug traffick-
ing. Wildauer explained several photographs of hidden
compartments that he had discovered in cars, all of which
came from other cases he had investigated. He also ex-
plained how “drug cartels” used this method to transport
drugs.
Expert testimony may be admitted if the witness’s
specialized knowledge will help the trier of fact to under-
stand the evidence. Fed. R. Evid. 702; United States v.
Nobles, 69 F.3d 172, 183 (7th Cir. 1995). “The operations of
drug dealers are generally an appropriate subject for
expert testimony. Because the clandestine nature of
narcotics trafficking is likely to be outside the knowl-
edge of the average layman, law enforcement officers
may testify as experts in order to assist the jury in under-
standing these transactions.” Nobles, 69 F.3d at 183 (quota-
tions and citations omitted).
In United States v. Hubbard, 61 F.3d 1261 (7th Cir. 1995),
we held that the district court did not abuse its discre-
tion in allowing a police officer who was not directly
involved in the defendant’s case to testify about dealers’
typical use of hidden compartments in automobiles to
transport narcotics. Id. at 1274-75. We noted that the
expert in Hubbard did not offer an opinion regarding the
No. 07-2404 21
defendant’s conduct, but merely spoke in general terms.
Id. at 1275. Finally, we stated that nothing in the
expert’s testimony “foreclosed or hampered the defense in
offering innocent explanations for evidence that [the
expert] had identified as consistent with narcotics traf-
ficking.” Id.
Avila’s case is similar to the situation we addressed
in Hubbard. Nava-Rubio and Avant testified that Avila or
his agents transported large amounts of drugs using
hidden compartments. The government produced
Sergeant Wildauer to help the jury understand this evi-
dence and how it related to the typical operations of drug
dealers. Thus, the evidence was relevant in that it
helped to explain other testimony.
Even relevant evidence may be excluded if the danger
of unfair prejudice outweighs its probative value. Fed. R.
Evid. 403. “Evidence is unfairly prejudicial only if it
will induce the jury to decide the case on an improper
basis, commonly an emotional one, rather than on the
evidence presented.” United States v. Pulido, 69 F.3d 192,
201 (7th Cir. 1995) (quotations omitted). This is not the
case here. Nothing about Wildauer’s testimony was so
prejudicial that it would cause the jury to decide the
case on an improper basis. As in Hubbard, Wildauer
never offered an opinion regarding Avila’s specific in-
volvement, and Avila had every opportunity to cross-
examine him. Considering the wealth of evidence against
Avila, it is unlikely that the jury convicted him on the
basis of the testimony about hidden compartments or a
comment regarding “drug cartels.”
22 No. 07-2404
2. The “Legal Opinions” of Several Witnesses
The primary issue at trial was Avila’s identity. During
opening statements, Avila’s counsel stated:
In this case . . . the government’s going to put on
a lot of evidence showing that there was a conspir-
acy. . . . The question here, though, is whether
Martin Avila was a part of that conspiracy or not.
Martin Avila denies being any part of that conspir-
acy. . . . He will tell you that he does not know
Rene Nava-Rubio, has never had any contact with
him, has never had any dealings with that man.
Now, there was somebody using the name
Martin Avila in this conspiracy, but the question
that you have to answer is whether this man is the
one that was doing that. Just because the name
Martin Avila is on the conspiracy doesn’t mean
that this man is the man that was doing that work.
To combat this argument, the government asked several
witnesses—Special Agent Burkhart, Nava-Rubio, and
Avant—to identify the defendant and state whether he
was the one who participated in the “drug trafficking
conspiracy,” “drug dealing enterprise,” or “drug traf-
ficking organization.” They all answered affirmatively.
It is true that it would be improper for the prosecutor
to elicit testimony about whether Avila was involved in a
“conspiracy” or the like, because it implies a legal con-
clusion. However, with respect to Nava-Rubio and
Avant, it is apparent from the record that the goal of this
No. 07-2404 23
questioning was to establish the identity of the defendant
as the individual who sold them drugs. Even Avila’s
counsel referred to the interactions among these individu-
als as “a conspiracy.” Although the form of the prosecu-
tor’s questions leaves much to be desired, Avila never
objected at trial. The prosecutor simply was trying to get
to the ultimate issue of Avila’s identity, a line of question-
ing that was entirely proper and, indeed, necessary
given Avila’s defense. We cannot say that but for the
imprecisely worded questions Avila would have been
acquitted.
With respect to Special Agent Burkhart, the govern-
ment concedes on appeal that her testimony was improper.
Burkhart identified Avila from a photograph as the
individual who took part in the conspiracy and explained
that the photo accurately reflected his appearance
from 2000 through 2002. Cross-examination revealed,
however, that she had not met Avila until after he was
arrested in 2005. Nonetheless, we fail to see how this
could have prejudiced Avila. The jury was fully aware of
the inaccuracies in Burkhart’s testimony, because they
were revealed on cross-exam. In addition, as we have
previously established, Avila never objected, and ample
evidence properly supported his conviction. Thus, the
error was harmless.
3. Cumulative Errors
Avila argues that even if the individual effects of these
errors were harmless, their cumulative effect denied him
his right to a fair trial. We have noted that “[c]umulative
24 No. 07-2404
errors, while individually harmless, when taken
together can prejudice a defendant as much as a single
reversible error and violate a defendant’s right to due
process of law.” United States v. Allen, 269 F.3d 842, 847
(7th Cir. 2001). To demonstrate cumulative error, Avila
must show that (1) at least two errors were committed
during the trial, and (2) these errors “so infected the
jury’s deliberation that they denied [Avila] a fundamen-
tally fair trial.” Alvarez v. Boyd, 225 F.3d 820, 824 (7th
Cir. 2000). We must use care not to magnify the
importance of errors that had little significance in the trial
setting. Id. at 825. We will reverse only if “the effect of the
errors, considered together, could not have been
harmless . . . [or] that but for the errors, the outcome of
the trial probably would have been different.” Id. (citation
omitted).
We doubt that the jury’s verdict would have been
different even if the trial court had excluded all of the
testimony that Avila now challenges. As we have
already noted numerous times, overwhelming evidence
properly supported Avila’s conviction. Avant and Nava-
Rubio described relationships with Avila that were
clearly conspiratorial, and their testimony was bolstered
by recorded conversations. Even the cumulative effect
of any potential errors did not deny Avila a fair trial.
C. Avila’s Sentence
Avila’s final arguments on appeal involve his sentence.
He claims that his sentence was based on an incorrect
Guidelines range, and that the district court improperly
No. 07-2404 25
calculated his criminal history points. Because Avila failed
to challenge the PSR or raise these arguments before
the district court, review is again for plain error, and a
remand is warranted only if the error affected Avila’s
substantial rights. United States v. Garrett, 528 F.3d 525,
527 (7th Cir. 2008).
Avila first argues that the district court applied the
wrong base offense level. “A sentence based on an incor-
rect Guideline range constitutes an error affecting substan-
tial rights and can thus constitute plain error, which
requires us to remand unless we have reason to believe
that the error did not affect the district court’s selection
of a particular sentence.” Id. The PSR computed that
Avila had distributed drugs with a marijuana
equivalency rate of 24,234 kilograms. The PSR recom-
mended, and the district court applied, a base offense
level of 38. With seven criminal history points, this
resulted in a Guidelines range of 324-405 months. How-
ever, the Guidelines clearly establish that the correct
base offense level for between 10,000 and 30,000 kilograms
of marijuana is 36. This would have resulted in a Guide-
lines range of 262-327 months.
The district court imposed a 396-month sentence, which
was within the incorrectly applied Guidelines range.
During sentencing, the judge gave no indication that he
would have imposed the same sentence had the range
been lower. This error requires remand.
The government argues that this error was harmless
because the evidence at trial supported a finding that
Avila distributed the equivalent of more than 30,000
26 No. 07-2404
kilograms of marijuana. However, the district court
apparently did not rely on that evidence. It found that
Avila distributed the equivalent of 24,234 kilograms of
marijuana, and neither the government nor Avila objected
to that finding. It appears that the district court simply
applied the wrong range, which constitutes plain error.
Avila also argues that the district court miscalculated his
criminal history points. At sentencing, Avila received a
total of seven criminal history points, which resulted in a
Guidelines range of 324-405 months. Six criminal history
points would have resulted in a range of 262-327 months.9
In calculating Avila’s criminal history points, the PSR
assigned two criminal history points for each of his two
prior controlled substance convictions. Avila was sen-
tenced for both convictions on the same day. In case 94 CR
1983, he received a sentence of sixth months’ custody. In
case 94 CR 670 he received a sentence of “two years
custody suspended upon completion of sentence in 94 CR
1983.”
Two criminal history points are imposed for each prior
sentence of imprisonment of at least sixty days. U.S.
Sentencing Guidelines Manual § 4A1.1(b) (2007). However,
where the imposition or execution of a sentence was
totally suspended, only one criminal history point is
imposed. Id. § 4A1.2(a)(3). Because the district court did
9
If the correct base offense level of 36 had been applied, 7
criminal history points would result in a range of 262-327
months, while 6 criminal history points would result in a
range of 235-293 months.
No. 07-2404 27
not address whether Avila’s sentence in case 94 CR 670
constitutes a “totally suspended” sentence within the
meaning of § 4A1.2(a)(3), we have in front of us only the
limited information available in the PSR. For this
reason, we decline to decide this issue for the first time
on appeal. Instead, on remand the district court should
inquire into the circumstances of the prior sentence
and decide whether it warrants one or two criminal
history points.
III. C ONCLUSION
We A FFIRM Avila’s conviction and R EMAND for
resentencing with instructions to (1) consider the Guide-
lines range that properly reflects the amount of drugs
Avila distributed and (2) determine whether the sen-
tence in case 94 CR 670 was “totally suspended” within
the meaning of U.S.S.G. § 4A1.2(a)(3).
3-6-09