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

Nos. 06-2021 & 06-2041
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.

JUAN GARZA MARTINEZ and
JORGE GOMEZ CARDENAZ,
                                            Defendants-Appellants.
                          ____________
            Appeals from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
           No. 1:05CR00016—Sarah Evans Barker, Judge.
                          ____________
       ARGUED MAY 24, 2007—DECIDED MARCH 3, 2008
                          ____________


  Before BAUER, KANNE, and ROVNER, Circuit Judges.
   ROVNER, Circuit Judge. A jury found Juan Martinez
and Jorge Cardenaz guilty of conspiracy to possess,
and possession of, marijuana with intent to distribute. See
21 U.S.C. §§ 846, 841(a)(1). The indictment specifically
alleged that both the conspiracy and the substantive
violation involved at least 1,000 kilograms of marijuana,
a quantity that would trigger a statutory maximum of
life imprisonment instead of the default maximum of
five years. See id. § 841(b)(1)(A)(vii), (b)(1)(D). The jury
was not asked to make a specific finding as to drug quan-
2                                  Nos. 06-2021 & 06-2041

tity but instead was told, apparently without objection
from the defendants, that in order to convict on either
count it had to find that the government proved the
amount alleged in the indictment. Later at sentencing
the district court concluded that the precise quantity
equaled 1,407 kilograms, and used that figure in applying
the sentencing guidelines. The court sentenced Martinez
to 126 months’ imprisonment, but assessed Cardenaz
three extra offense levels as a manager or supervisor of
the conspiracy and sentenced him to 210 months. On
appeal Martinez and Cardenaz contend that their con-
victions must be set aside because no rational jury
could have found beyond a reasonable doubt that the
charged offenses involved at least 1,000 kilograms of
marijuana. Both appellants also contend that the jury,
rather than the district court, should have decided the
drug quantity used in applying the sentencing guide-
lines, and that the district court overstated the relevant
amount. Finally, Cardenaz objects to the upward ad-
justment in offense level for his leadership role. For the
reasons that follow, we affirm the convictions and sen-
tences of both appellants.


                            I.
  In December 2004 authorities learned through wire-
taps that a large quantity of marijuana would be de-
livered to the residence of Hector Torres in Indianapolis,
Indiana. Federal and state investigators set up surveil-
lance at the residence, and on December 13 they wit-
nessed the arrival of Carlos Pelayo-Guzman, the buyer
from Chicago, Illinois, who was to take delivery of the
incoming marijuana at Torres’s home. After roughly half
an hour, Torres and Pelayo-Guzman left together in the
Nos. 06-2021 & 06-2041                                     3

latter’s Jeep and drove to a nearby parking lot, where they
met appellant Cardenaz and a fourth man, Elvis Garcia.
   Meanwhile, what the surveillance team did not yet
know was that appellant Martinez and Johnny Gutierrez
were waiting across the street in a white Ford van dis-
guised with FedEx logos. The two had driven the van and
its cargo of marijuana-laden crates from Indianapolis to
Houston, Texas. Cardenaz pointed out the van to Torres
and Pelayo-Guzman and then joined them in the Jeep. The
three departed for Torres’s house, followed by Martinez
and Gutierrez in the van. Garcia stayed behind at the
parking lot. When they reached Torres’s home, Martinez
backed the van carrying the drugs up the driveway and
partway into the garage.
  Surveillance officers had lost the Jeep in traffic, but one
of the investigators returned to Torres’s residence and
saw Martinez and Gutierrez exit the FedEx van and
begin unloading it with help from the others. Fifteen
minutes later, uniformed state police officers approached
the open garage from the sidewalk and saw bales of
marijuana stacked on the floor. Martinez, Cardenaz, Torres,
and Pelayo-Guzman were all in the garage. Torres was
the first to spot the officers; he immediately yelled,
“Police!” and ran into the house. The others were or-
dered not to move, but only Cardenaz complied. Martinez
and Pelayo-Guzman followed Torres from the attached
garage into the adjoining family room, but were quickly
caught after exiting through the back door. Gutierrez
was found hiding in a closet, and Garcia was picked up
separately. Fourteen bales of marijuana were recovered
from the garage floor; seventy more were found in the
family room, and another 118 were still in their crates
in the van.
4                                 Nos. 06-2021 & 06-2041

  Torres, Pelayo-Guzman, Gutierrez, and Garcia all
pleaded guilty to the conspiracy count and testified for
the government at Martinez and Cardenaz’s joint trial.
Torres testified that he, along with Pelayo-Guzman and
Cardenaz, traveled in the Jeep to his home on the night
of December 13, with the FedEx van following. According
to Torres, Cardenaz used a cellular phone to com-
municate with the occupants of the van, Martinez and
Gutierrez, during the drive. Torres testified that once
they arrived at his house, he parked in the street,
while Martinez backed the van into the garage. After
Martinez unlocked the doors, Torres, Pelayo-Guzman,
and Cardenaz unloaded the crates of marijuana by “as-
sembly line”: Cardenaz removed the marijuana bales
from the van and handed them to Pelayo-Guzman,
who handed them to Torres, who carried them into the
family room. According to Torres, Martinez stood next to
him in the garage counting the bales, while Gutierrez,
who was ill, had gone into the house to watch television.
Pelayo-Guzman confirmed that Martinez counted the
bales as they were removed by Cardenaz and passed them
to him and on to Torres. Gutierrez added that Garcia’s
uncle, Jorge Garcia, had hired him to transport the mari-
juana with Martinez from Houston to Indianapolis. And,
finally, Garcia recounted that his uncle had asked him
to drive behind the FedEx van from Houston to Indi-
anapolis to “oversee the drop.” Garcia testified that
Cardenaz accompanied him in the car, in part, because
Cardenaz had an “ownership interest” in the marijuana.
Martinez and Cardenaz, who stipulated that the
net weight of the marijuana found at Torres’s residence
exceeded 1,000 kilograms, argued that the government’s
evidence showed only that they were present during a
drug transaction. Neither presented any evidence at trial.
Nos. 06-2021 & 06-2041                                      5

  After trial a probation officer prepared presentence
reports for Martinez and Cardenaz. The officer reported
that the total amount of marijuana recovered from the
van, garage, and family room was roughly 1,400 kilo-
grams, though any amount from 1,000 to 3,000 kilograms
would have yielded the same base offense level of 32. See
U.S.S.G. § 2D1.1(c)(4). Martinez received no offense-level
adjustments and had no criminal history; therefore, he
faced a guidelines imprisonment range of 121 to 151
months. Cardenaz’s offense level initially was calculated
at 32 as well, but the government argued over his objec-
tion that Cardenaz was a leader in the conspiracy and
should receive a four-level increase. See U.S.S.G. § 3B1.1(a).
At sentencing the government highlighted Garcia’s testi-
mony at trial that Cardenaz was an overseer of the opera-
tion. The government also emphasized, and Cardenaz
conceded, that various conspirators had asserted during
interviews with investigators that Cardenaz helped plan
the marijuana delivery. The district court agreed with
the government that Cardenaz served a supervisory
role, but because the evidence suggested that Jorge
Garcia was the principal leader of the conspiracy, it
increased Cardenaz’s offense level by just three as a
manager or supervisor instead of giving him a four-level
increase as an organizer or leader. See U.S.S.G. § 3B1.1(b).
Cardenaz’s criminal history category was III, which
resulted in a guidelines imprisonment range of 210 to 262
months. The district court sentenced both defendants
toward the low end of their respective ranges.


                             II.
  On appeal Martinez and Cardenaz first argue that the
evidence is insufficient to support their convictions for
6                                     Nos. 06-2021 & 06-2041

conspiracy to possess and possession of marijuana. We
have repeatedly noted that defendants challenging the
sufficiency of the evidence face a high burden. See, e.g.,
United States v. Emerson, 501 F.3d 804, 811 (7th Cir. 2007);
United States v. Morris, 498 F.3d 634, 637 (7th Cir. 2007);
United States v. Melendez, 401 F.3d 851, 854 (7th Cir. 2005).
We will overturn a jury’s verdict only if, after viewing
the evidence in the light most favorable to the govern-
ment, no rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt. See
United States v. Bernitt, 392 F.3d 873, 878 (7th Cir. 2004).
   In this case, Martinez and Cardenaz seek to overturn
their convictions because, they contend, a rational jury
could not have found that the marijuana bales in the
family room were part of the shipment delivered in the
FedEx van, and thus could not reasonably have con-
cluded that their drug offenses involved at least 1,000
kilograms of marijuana. This contention incorrectly presup-
poses that drug quantity is an element of the charged
offenses. As we have said repeatedly, the drug quantity
is not an element of the crimes defined by § 846 or
§ 841(a)(1). See, e.g., United States v. Tolliver, 454 F.3d 660,
669 (7th Cir. 2006); United States v. Gougis, 432 F.3d 735, 745
(7th Cir. 2005); United States v. Henry, 408 F.3d 930, 934
(7th Cir. 2005). The government’s evidence of drug quan-
tity sometimes “affects the statutory maximum penalty,
but that does not make it a necessary element of an offense
that must be charged and proved in every case.” Henry,
408 F.3d at 934.1 And even if quantity had been an element,


1
  The government proposed to submit a special verdict to the
jurors, asking them to decide the weight of the marijuana. This
                                                 (continued...)
Nos. 06-2021 & 06-2041                                           7

the evidence that the conspiracy and substantive counts
involved at least 1,000 kilograms is overwhelming. The
appellants were caught unloading a van filled with mari-
juana, and they stipulated that more than 1,000 kilograms
were found between the van, garage, and family room.
Their contention that they could not have managed to
unload and stack seventy bales in the family room before
the police arrived cannot be accepted in light of their
coconspirators’ testimony that they did exactly that.
Accordingly, we reject Martinez and Cardenaz’s chal-
lenge to the sufficiency of the evidence.
  Inviting our attention to the Supreme Court’s decision
in Cunningham v. California, 127 S. Ct. 856 (2007), Martinez
and Cardenaz next contend that their sentences should
be vacated because the district found on its own, without
a jury, that the marijuana quantity was 1,407 kilograms.
The appellants’ reliance on Cunningham is misplaced.
Prior to Booker, judicial fact-finding in applying the guide-
lines raised constitutional concerns because the guidelines


1
  (...continued)
was the proper means of seeking a jury determination on the
question of drug quantity. See Tolliver, 454 F.3d at 668-69; United
States v. Macedo, 406 F.3d 778, 786 (7th Cir. 2005). The district
court instead instructed the jury that it must find the weight
alleged in the indictment in order to convict. The court’s
instructions were incorrect, but whether the court acted at the
defendants’ behest or over their objection we cannot tell, be-
cause the defendants have not provided us a transcript of the
jury-instruction conference or made any reference in their
brief to the court’s instructions. In any event, the defendants
make no argument about the manner in which the quantity
determination was submitted to the jury, and thus we decline
to comment further.
8                                     Nos. 06-2021 & 06-2041

were treated as “laws with binding effect.” United States v.
Hollins, 498 F.3d 622, 633 (7th Cir. 2007); United States v.
Gallardo, 497 F.3d 727, 739 (7th Cir. 2007). But Booker
eliminated the constitutional concern by making the
guidelines advisory and, as we have already held, the
subsequent decision in Cunningham “has no effect on post-
Booker federal practice.” United States v. Roti, 484 F.3d 934,
937 (7th Cir. 2007); see United States v. Savage, 505 F.3d 754,
764 (7th Cir. 2007) (declining to reconsider Roti). Addition-
ally in this case, because of the manner in which the
district court instructed on the elements of the charged
offenses, see supra note 1, the jury—not the judge—did find
beyond a reasonable doubt that the counts of conviction
involved at least 1,000 kilograms of marijuana. That
amount, not the entire 1,407 kilograms found by the
judge, was enough to trigger the base offense level of 32
that the court applied. See U.S.S.G. § 2D1.1(c)(4).
  Martinez and Cardenaz also argue that, at sentencing,
the district court failed to consider whether the entire
load of marijuana was reasonably foreseeable to them. The
court did not, in fact, consider foreseeability, but neither
was it required to. Under the sentencing guidelines, a
defendant in a drug case is liable for any amount that
he was directly involved with, as well as any amount
attributable to his coconspirators, so long as the additional
amount was reasonably foreseeable to him. See U.S.S.G.
§ 1B1.3(a); Hollins, 498 F.3d at 630-31; United States v.
Goodwin, 496 F.3d 636, 642 (7th Cir. 2007). “Reasonable
foreseeability” is thus a qualification to holding one
conspirator accountable for the conduct of others; it “does
not apply to conduct that the defendant personally under-
takes, aids, abets, counsels, commands, induces, procures,
or wilfully causes.” U.S.S.G. § 1B1.3(a)(1)(A) cmt. n.2(ii).
Nos. 06-2021 & 06-2041                                     9

Here, the evidence overwhelmingly established that
Martinez drove 1,407 kilograms of marijuana from
Houston to Indianapolis, and that Cardenaz had an
ownership interest in the drugs and supervised the con-
veyance and delivery. Both appellants were unloading
the bales when they were arrested. The district court
concluded that Martinez and Cardenaz were directly
involved with the entire load, and thus the court had no
reason to address whether the drugs were reasonably
foreseeable. See generally United States v. Hach, 162 F.3d
937, 950-51 (7th Cir. 1998) (upholding district court’s
determination that defendants were jointly liable for the
entire amount of drugs in conspiracy).
  Finally, Cardenaz argues that the district court improp-
erly increased his offense level after finding that he was
a manager or supervisor in the conspiracy. See U.S.S.G.
§ 3B1.1(b). We review the district court’s determination of
a defendant’s role in the offense for clear error. See United
States v. Brownell, 495 F.3d 459, 464 (7th Cir. 2007); United
States v. Johnson, 489 F.3d 794, 796 (7th Cir. 2007). At
sentencing the district court acknowledged that Jorge
Garcia was the head of the conspiracy but concluded,
after reviewing the coconspirators’ testimony, that “every-
body on the ground, everybody who was doing some-
thing in this conspiracy to make the transportation of the
marijuana happen was taking orders from Mr. Cardenaz.”
At least one of the conspirators, Elvis Garcia, explicitly
stated that Cardenaz had an ownership interest in the
operation. Although there was some confusion at trial
between Jorge Garcia and Jorge Cardenaz, Garcia clearly
testified that his uncle hired both him and Cardenaz,
and that Cardenaz had a supervisory role. Given this
evidence, we do not find that the district court com-
mitted clear error in applying the upward adjustment.
10                                Nos. 06-2021 & 06-2041

                         III.
  We AFFIRM the convictions and sentences of Martinez
and Cardenaz.




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