U.S. v. Macedo, 02-3563.

• Decision Date: 15 June 2004
• Docket Number: No. 02-3842.,No. 02-3564.,No. 02-3563.,02-3563.,02-3564.,02-3842.
• Citation: 371 F.3d 957
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Gregorio MACEDO, Defendant-Appellant, and Victor Hugo Contreras, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

371 F.3d 957

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Gregorio MACEDO, Defendant-Appellant, and Victor Hugo Contreras, Defendant-Appellant, Cross-Appellee.

No. 02-3563.

No. 02-3564.

No. 02-3842.

United States Court of Appeals, Seventh Circuit.

Argued October 22, 2003.

Decided June 15, 2004.

COPYRIGHT MATERIAL OMITTED

Debra Riggs Bonamici (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Andrea E. Gambino (argued), Keri A. Ambrosio, Chicago, IL, Robert K. O'Reilly, Ademi & O'Reilly, Cudahy, WI, for Defendant-Appellant.

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. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 exchange the shoes containing the methamphetamine for new ones and purchase each a return ticket to Mexico.¹

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, Inspector 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 government 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 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 approximate street value of $175,000). The shoes seized from Maldonado at the airport contained 441.9 grams of methamphetamine (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 admitted during trial included: the testimony of the two coconspirators, 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 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 methamphetamine 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 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) concerning 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

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 indictment. 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 indictment 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 controlled 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 ...