                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-3113
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.
RUBEN ARROYO,
                                           Defendant-Appellant.

                         ____________
         Appeal from the United States District Court for
        the Northern District of Illinois, Eastern Division.
          No. 99 CR 559—Wayne R. Andersen, Judge.
                         ____________
    ARGUED FEBRUARY 24, 2005—DECIDED MAY 5, 2005
                   ____________




  Before FLAUM, Chief Judge, and MANION and EVANS,
Circuit Judges.
  FLAUM, Chief Judge. A jury convicted defendant-appellant
Ruben Arroyo of possession with intent to distribute heroin
and conspiracy to possess with intent to distribute heroin in
violation of 21 U.S.C. §§ 841 and 846. At the sentencing
hearing, the government presented evidence that defendant
also distributed large quantities of cocaine. Applying the
federal sentencing guidelines to both the heroin and cocaine
transactions, the district court sentenced Arroyo to 360
months of imprisonment and five years of supervised
release. Arroyo now appeals his conviction and sentence.
2                                              No. 03-3113

For the reasons that follow, we affirm the conviction and
order a limited remand pursuant to our decision in
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).


                     I. Background
  Federal law enforcement agents began investigating
Arroyo with the aid of a confidential informant (“CI”) in
June 1999. Over a period of about six weeks, officers moni-
tored, recorded, and performed surveillance of 21 meetings
and telephone conversations between the CI and Arroyo.
  During one of those conversations, on July 11, 1999,
Arroyo arranged for his associate Efrain Gamboa-Cazarez
(“Gamboa”) to deliver a sample of heroin to the CI. Unbe-
knownst to defendant, the CI immediately turned over this
sample to law enforcement. A few weeks later, defendant
promised to sell the CI two kilograms of heroin. On July 30,
1999, Arroyo supplied Gamboa with a car equipped with a
concealed compartment and sent Gamboa to his drug source,
Regalo, to pick up the heroin. Regalo provided only one
kilogram, which defendant directed Gamboa to deliver to
the CI in a McDonald’s parking lot at the intersection of
Cermak Road and Harlem Avenue in Chicago, Illinois.
  Neither Arroyo nor Gamboa were aware that law enforce-
ment officers were present at the McDonald’s and were pre-
pared to arrest the participants once the transaction was
complete. As planned, Gamboa arrived at the parking lot,
gave the CI the package from Regalo, and told him he would
receive the second kilogram after Gamboa took the money
to the supplier. Gamboa handed the CI a vinyl package re-
sembling a shaving kit. The CI opened the package and
briefly removed a bag containing two smaller plastic bags
each holding a white substance. At that point, law enforce-
ment agents emerged and arrested the CI and Gamboa. FBI
Special Agent Randall McIntosh seized the package.
No. 03-3113                                                   3

  Agent McIntosh and Task Force Officer James Washington
briefly inspected the package in the parking lot. McIntosh
later prepared an arrest report in which he described the
contents of the package as “chalky white.” After leaving the
scene, Washington and FBI Special Agent Holly Meador
drove the package to the FBI office downtown where they
secured it in an evidence locker. The following Monday,
August 2, 1999, Washington and another officer recorded
the package in the evidence log. Washington completed a
report in which he referred to the substance as a “brown”
powder “suspected to be brown heroin.” The same day, the
package was submitted to a Drug Enforcement
Administration (“DEA”) laboratory for analysis, where
testing confirmed that the package contained 998.1 grams
of heroin of varying purity.1
  On August 6, 1999, after several telephone calls to the
DEA, Arroyo turned himself in at the United States Attor-
ney’s Office. Represented by counsel, Arroyo agreed to
cooperate with the government, and agents held him at a
hotel where he provided information to the government.
Arroyo admitted to law enforcement agents that he had
previously sold cocaine to the CI and that he had arranged
the July 30 heroin deal with Efrain Gamboa, Sr., his drug
source.
  Sometime between 5:00 P.M. on August 10 and 11:15 A.M.
on August 11, Arroyo escaped from the custody of federal
agents. The FBI arrested him in Yuma, Arizona on
August 19, and he was returned to custody in Chicago.
  On August 27, 1999, Arroyo and Gamboa were charged in
a two-count indictment with conspiring to possess with
intent to distribute, and possessing with intent to distrib-
ute, approximately one kilogram of heroin. Gamboa pled


1
  Agent Washington’s report noted a total drug weight of 1,107.3
grams.
4                                                No. 03-3113

guilty but did not agree to assist the government or to coop-
erate against Arroyo, who proceeded to trial in February
2003.
   Over the course of the five-day trial, the government called
13 witnesses who testified about the investigation, the
recorded conversations between defendant and the CI, the
chain of custody of the drug evidence, defendant’s phone
calls to the DEA, defendant’s post-arrest statement, and his
flight. The CI did not testify. Several officers confirmed that
they had initialed the arrest report describing the suspected
heroin as “white” even though it was later described as
“brown.”
  Arroyo’s theory at trial was that he had attempted to “rip
off” the CI by providing him with a look-alike substance that
was not in fact heroin. He claimed that the white substance
that he sent to the July 30 sale was not the same brownish
substance that the government ultimately introduced at
trial. Defendant offered the testimony of his co-defendant
Gamboa that the package seized on July 30 contained a
white substance. He also presented the testimony of Albert
Charnotta, his sister’s former boyfriend, who used to live
with Arroyo. Charnotta testified that on July 30, 1999, he
saw defendant sitting at the kitchen table placing into plastic
bags a white powdery substance that he believed was either
baking soda or vitamin B-12.
  The jury convicted defendant on both counts and returned
a special verdict form finding that defendant had conspired
to distribute, or possess with intent to distribute, one kilo-
gram or more of heroin, and that he had actually possessed
with intent to distribute between 100 grams and one kilo-
gram of heroin.
  The district court conducted a sentencing hearing on July
29 and 31, 2003. The government presented the testimony
of one witness, Ricardo Garcia, a convicted drug trafficker
who testified pursuant to a written plea agreement with the
No. 03-3113                                                        5

government. Garcia had admitted to possessing 150 to 200
kilograms of cocaine and was sentenced to 58 months of
imprisonment. Garcia testified that he had delivered large
quantities of cocaine on behalf of Arroyo in 1998 and 1999.
According to Garcia, Arroyo would supply him with the
drugs inside a van, and Garcia would deliver that van to a
customer named Jones and assist Jones in delivering the
drugs to his customers. Jones would then pay Garcia, and
Garcia would deliver the money to Arroyo at his apartment.
Garcia testified that he delivered cocaine on behalf of Arroyo
five or six times and that he had delivered marijuana once.
The district court credited Garcia’s testimony and sentenced
Arroyo based on a total drug quantity of one kilogram of
heroin and 50 kilograms of cocaine (one delivery of 30
kilograms, and four additional deliveries of five kilograms
each).2 This drug quantity resulted in a base offense level of
36. Based on a two-level enhancement for obstruction of
justice and a criminal history category of V, the guidelines
yielded a sentencing range of 360 months to life. The court
sentenced defendant to 360 months.


                        II. Discussion
  Arroyo raises several issues with respect to both his con-
viction and sentence. First, he argues that the district court


2
  The district court emphasized that it believed it was giving
defendant “the benefit of every doubt” in calculating the drug
quantity, acknowledging that Arroyo was likely responsible for an
even higher quantity. (Sent. Tr. at 103.) The court stated:
    I have no doubt sitting here that there was a lot of other drug
    transactions that Arroyo was involved with that have not
    been made subject to this . . . [b]ut I have no particular desire
    to force the Government or myself or the Probation Office to
    try to get hard evidence to get it above the level 36, which is
    a pretty steep level given the real terms of his life anyhow.
(Id. at 104.)
6                                                No. 03-3113

abused its discretion in refusing to send the drug evidence
into the jury room during deliberations. Arroyo also con-
tends that the district court abused its discretion in exclud-
ing from evidence an IRS memorandum that he asserts
would have corroborated his defense. With respect to his
sentence, defendant claims that the district court applied
the guidelines incorrectly by including the cocaine in its
calculation of drug quantity without explicitly tying this
evidence to his offense of conviction. Finally, defendant
argues that his sentence violates the Sixth Amendment as
interpreted by the Supreme Court in United States v. Booker,
125 S. Ct. 738 (2005) and seeks a remand pursuant to
Paladino. We address each of Arroyo’s arguments in turn.


A. Drug Evidence
  During the trial, a court security officer showed the jury
the drug evidence by holding the exhibit in his hand as he
walked in front of the jury. On the third day of the trial, the
heroin was placed in front of the jury on the government’s
evidence table, and it remained there for the rest of the
trial. At the end of the trial, the judge informed the jury
that the drugs would not be sent back into the jury room,
but that he would work out a process if the jury wanted to
see the heroin.
  During deliberations, the jury sent out a note requesting
to “see the sample heroin and heroin.” The trial judge
conferred with the parties and considered various options
for allowing the jury to examine the drug evidence without
compromising the safety of the jury or the exhibit. Over
defendant’s objection, the judge decided to allow the jury to
return to the courtroom to view the evidence in the presence
of the judge, counsel, and FBI agents.
  Defendant contends that the court violated his right to due
process by limiting the jury’s access to the drug evidence to
a “single, inhibited viewing that denied the jury a meaning-
No. 03-3113                                                 7

ful opportunity to evaluate and discuss the exhibit’s rele-
vant qualities.” He asserts that the jury’s determination of
the authenticity of the evidence—a crucial issue in the
case—required the jurors to be able to examine the evidence
closely and discuss with each other subtle details such as
color and shading.
  We afford the district court considerable discretion in the
handling of exhibits during the course of a trial as well as
during jury deliberations. United States v. Burrell, 963 F.2d
976, 982 (7th Cir. 1992). We review the district court’s
handling of the exhibits for a clear abuse of discretion. Id.
  Defendant’s argument that the district court abused its
discretion is based on an unfair characterization of the rec-
ord. Far from the single, inhibited viewing that defendant
describes, the jurors were able to see the heroin during a
significant portion of the trial, and upon their request, were
permitted to return to the courtroom to observe the evidence
again during deliberations. The district judge struck a
reasonable balance between allowing the jurors to examine
the evidence and protecting them from allegations of misuse
or tampering. The jury had ample opportunity to observe and
evaluate the evidence critically in light of defendant’s
argument that the heroin presented at trial was not the
look-alike substance he arranged to have delivered on July
30, 1999. We conclude that the district court did not abuse
its discretion in handling the jury’s viewing of the evidence
in this manner.


B. IRS Memorandum
  Defendant also argues that the district court abused its
discretion in excluding from evidence a July 13, 1999 memo-
randum prepared by IRS Agent Alfonso Herrera regarding
an interview with the CI. The memo reported that the CI
had told Herrera that Arroyo was believed to have “ripped”
two kilograms of cocaine during a drug sale. The district
8                                               No. 03-3113

judge concluded that the CI’s statement was hearsay and
could not be offered for its truth, but indicated that he
would consider allowing it in for some other purpose.
Defendant then sought the admission of the memo in order
to establish the state of mind of the investigating officers.
During a voir dire of IRS Agent Christopher Carlson outside
the presence of the jury, defense counsel read aloud the
portion of the memo in which Herrera reported:
    On July 13, 1999, [the CI] . . . informed that the word
    on the street is that there is a contract out on Ruben
    Arroyo’s head. There is a $100,000 reward for anyone
    that kills Ruben Arroyo. Allegedly Arroyo ripped two
    kilograms of cocaine from . . . a[n] unknown individual
    during a drug deal.
(Tr. at 111-12.)
  Carlson testified that he was aware of the information in
the memo but that it did not affect the way in which he
conducted the investigation. The testimony of several other
officers also revealed that they were either unaware of the
contents of the memo or that it did not influence their
investigation. The district court therefore found the memo
irrelevant and excluded it.
   Defendant argues that the district court abused its dis-
cretion in concluding that the officers’ state of mind was
irrelevant. He contends that, because some of the officers
were aware of the possibility that the heroin he and Gamboa
attempted to sell was fake, they should have conducted a
field test on the scene to determine the true identity of the
substance. Arroyo also contends for the first time on appeal
that the memo was admissible pursuant to Federal Rule of
Evidence 801(d)(2) as a statement by a party-opponent
and as character evidence under Rule 803(21). Finally,
defendant asserts that “not admitting the IRS Memo denied
[him] a critical piece of background information and allowed
the jury to reach its verdict based on a partial and incom-
plete version of the facts.”
No. 03-3113                                                 9

  We review the trial court’s evidentiary rulings for an abuse
of discretion. United States v. Gant, 396 F.3d 906, 908 (7th
Cir. 2005). The district court did not abuse its discretion in
excluding the memo. Arroyo offered only two potential bases
for admission at trial: (i) to prove the truth of the matter
asserted—that he had in fact “ripped” two kilograms of co-
caine from someone in another drug deal; and (ii) to show
that the information contained in the memo affected the way
the officers conducted the investigation. Because defendant
offered the statements in the memo for their truth, the trial
court was correct in concluding that the memo contained
hearsay. Moreover, defendant has not explained how the
officers’ state of mind was relevant. Arroyo was permitted
to elicit testimony that the officers did not conduct a field
test on the heroin; he has not shown why admission of the
CI’s out-of-court statements regarding defendant “ripping”
the cocaine was necessary to further explain the officers’
actions.
  Defendant raises the arguments that the memo should
have been admitted as an admission by a party-opponent
and as character evidence for the first time on appeal. Ac-
cordingly, defendant has forfeited these arguments, and we
review the trial court’s decision for plain error. See Johnson
v. United States, 520 U.S. 461, 466-67 (1997). Before we can
correct any forfeited error, we must find: (1) error; (2) that
is plain; (3) affects substantial rights; and (4) seriously
affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
  Both of defendant’s newly-presented arguments fail. This
Court has held that government agents are not party-oppo-
nents for purposes of Rule 801(d)(2). See United States v.
Prevatte, 16 F.3d 767, 779 n.9 (7th Cir. 1994) (quoting
United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir.
1979)) (“Because the agents of the Government are suppos-
edly disinterested in the outcome of a trial and are tradi-
tionally unable to bind the sovereign, their statements seem
10                                                No. 03-3113

less the product of the adversary process and hence less
appropriately described as admissions of a party.”). Nor did
the memo fall within the reputation exception to the
hearsay rule. The statements defendant sought to admit
were not related to his character, but rather to a rumor
about a specific prior act and others’ intentions to harm him.
This information does not establish the “[r]eputation of
[defendant’s] character among associates or in the commu-
nity.” Fed. R. Evid. 803(21).


C. Application of the Guidelines
  Based on the counts of conviction alone, the sentencing
guidelines would have yielded a range of 188-235 months.3
The district court’s enhancement of defendant’s sentence
based on relevant conduct and obstruction of justice in-
creased Arroyo’s sentence significantly. We now know that
this sentence violated Arroyo’s Sixth Amendment rights
because the judge enhanced his sentence on the basis of
facts not determined by the jury and applied the guidelines
as mandatory. Paladino, 401 F.3d at 479 (citing Booker, 125
S. Ct. 738).
  We put the Booker issues to one side for a moment in
order to address Arroyo’s argument that the district court
erred in its application of the guideline governing relevant
conduct. Defendant contends that the district court failed to
explicitly connect the cocaine evidence with the offense of
conviction—conspiracy and possession with intent to dis-
tribute heroin. He argues that the court should not have
considered this evidence in imposing his sentence.
   Because defendant forfeited this issue by failing to raise
it below, we review for plain error. The guidelines instruct


3
  A quantity of one kilogram or more of heroin results in a base
offense level of 32. See U.S.S.G. § 2D1.1.
No. 03-3113                                                11

district courts to calculate sentences based on types and
quantities of drugs not specified in the counts of conviction
but that were “part of the same course of conduct or com-
mon scheme or plan” as the convicted offenses. United States
v. Bacallao, 149 F.3d 717, 719 (7th Cir. 1998) (quoting
U.S.S.G. § 1B1.3(a)(2)). This “relevant conduct” or “aggrega-
tion” rule permits sentencing courts to consider quantities
of drugs not specified in the counts of conviction provided
that “the unconvicted activities bore the necessary relation
to the convicted offense.” Id. (quoting United States v.
Duarte, 950 F.2d 1255, 1263 (7th Cir. 1991)). “Two or more
offenses are part of a common scheme or plan if they are
connected by at least one common factor, such as ‘common
victims, common accomplices, common purpose, or similar
modus operandi.’ ” Id. (quoting U.S.S.G. § 1B1.3(a)(2), cmt.
n.9)). However, “section 1B1.3(a)(2) must not be read to
encompass any offense that is similar in kind to the offense
of conviction but that does not bear the required relation-
ship to that offense.” Id. at 719-20. In assessing whether
there is a strong relationship between the uncharged con-
duct and the convicted offense, courts should consider whether
the government has demonstrated a significant similarity,
regularity, and temporal proximity. Id. at 719.

  When a district court aggregates drug quantities arising
from uncharged or unconvicted relevant conduct for pur-
poses of calculating a defendant’s base offense level, we have
required the court to “explicitly state and support, either at
the sentencing hearing or (preferably) in a written statement
of reasons, its finding that the unconvicted activities bore
the necessary relation to the convicted offense.” Id. at 720
(quoting Duarte, 950 F.2d at 1263). However, where it is
clear that the district court took into consideration and
adopted the facts contained in the presentence report, as
well as the government’s reasoning concerning those facts,
we have upheld the court’s decision to handle the uncharged
12                                               No. 03-3113

conduct as relevant conduct, despite the lack of express find-
ings. Id. (citing United States v. Acosta, 85 F.3d 275, 280
(7th Cir. 1996)).
  In Bacallao, the district court sentenced defendant based
on a drug quantity of 3.3 kilograms of cocaine without mak-
ing any explicit findings as to how this quantity of cocaine,
other than a portion found on or near the defendant’s car,
constituted relevant conduct. Id. at 719. Because the district
court did not make any independent findings but instead
relied entirely on the information contained in the presen-
tence report (“PSR”), we determined that the PSR itself
must explain how the additional quantities were part of the
same course of conduct or common scheme or plan as the
offense of conviction. Id. at 721. Finding nothing in the rec-
ord or the PSR establishing relevant dates, common victims,
common accomplices, or details concerning the manner in
which the additional cocaine was acquired and distributed,
we vacated the sentence and remanded for resentencing,
noting that the government would have the opportunity to
prove on remand that the additional cocaine transactions
were relevant conduct for sentencing purposes. Id. at 721-
22.
  In United States v. Johnson, 324 F.3d 875 (2003), we up-
held the district court’s determination that sufficient differ-
ences existed between defendant’s state-law drug conviction
and his federal charge of distributing crack cocaine to
preclude the state offense conduct from being considered
relevant to the federal offense. Id. at 879. In that case, the
district court found that the two criminal enterprises lacked
temporal proximity because more than one year elapsed be-
tween the offenses. Id. Furthermore, the offenses differed in
that the state law offense involved a conspiracy to distribute
large quantities of powder cocaine while the federal offense
charged defendant with acting alone to make an individual
sale of crack cocaine. Id. at 879-80; see also United States v.
Sumner, 265 F.3d 532, 540-41 (7th Cir. 2001) (where the
No. 03-3113                                               13

drugs charged in the offense of conviction amounted to less
than 0.2% of the quantity for which defendant was held ac-
countable, defendant established prejudice under the plain
error standard because the district court did not make ade-
quate findings on the record tying the uncharged conduct to
the offense of conviction).
  In this case, as in Bacallao and Sumner, the district court
made no explicit findings linking the cocaine evidence to the
offense of conviction. The PSR also provides no support for
such a contention. It merely refers to the cocaine transac-
tions as “relevant conduct” but does not explain the basis
for this designation. At sentencing, neither defendant nor
the government addressed the question whether the cocaine
transactions bore the “required relationship” to the heroin
offense, and it appears that both parties, as well as the
district court, took this conclusion for granted.
  The district court erred in assuming without making a
specific finding that defendant’s cocaine activity bore the
necessary relationship to his heroin conviction. Defendant
has not demonstrated, however, that this deficiency rises to
the level of plain error.
  In Sumner, we found that the defendant made an ade-
quate showing of prejudice under the plain error standard
where:
    there was a significant temporal gap between the un-
    charged conduct and the offense of conviction, there was
    evidence that [defendant] voluntarily ceased the un-
    charged activity, the uncharged conduct involved a
    different drug than the offense of conviction, and there
    was no showing of a common geographical location,
    common customers, common supplier, common victims,
    accomplices or modus operandi.
265 F.3d at 540-41. The government in Sumner argued that
the purported relevant conduct and the offense of conviction
were temporally proximate but provided no support for this
14                                              No. 03-3113

assertion. Id. at 541. Because we also found little or no
support in the record demonstrating the similarity of the
acts and because the difference in Sumner’s sentence was
significant (raising his sentencing range from 8-14 months
to 121-151 months), we concluded that Sumner had ade-
quately demonstrated prejudice. Id.
  In this case, by contrast, although the district court did
not make explicit findings tying defendant’s cocaine distri-
bution to his heroin offense, the record could support the
conclusion that the two offenses were part of the same course
of conduct. The offenses involved some of the same partici-
pants, and defendant used similar means to transport the
heroin and cocaine to their respective customers. Therefore,
defendant has not shown that this error affected his sub-
stantial rights.


D. Booker/Paladino Remand
  Because defendant failed to raise a Booker-type issue
below, we review for plain error. Paladino, 401 F.3d at 481.
As discussed above, the district court plainly erred in en-
hancing defendant’s sentence based on facts not found by a
jury beyond a reasonable doubt and applying the guidelines
as mandatory. In order to determine whether the third and
fourth prongs of the plain error test have been met, we
retain jurisdiction and direct a limited remand to permit the
sentencing judge to determine whether he would have
imposed a different sentence had he known the guidelines
were advisory. See id. at 483-84. If the sentencing judge
indicates that Arroyo would have received the same sen-
tence, we will conclude that he was not prejudiced by the
error, and defendant’s plain error challenge must fail. We
will then affirm the original sentence, provided it is rea-
sonable. Id. at 484. If, on the other hand, the judge decides
that a different sentence would have been appropriate, we
will vacate the original sentence and remand for resentenc-
No. 03-3113                                                15

ing. Id. In either case, the district court should place on the
record an appropriate explanation for its determination. Id.


                      III. Conclusion
  For the foregoing reasons, the conviction is AFFIRMED. We
retain jurisdiction and REMAND to the district court pursu-
ant to the procedure set forth in Paladino.


A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                    USCA-02-C-0072—5-5-05
