In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3073

United States of America,

Plaintiff-Appellee,

v.

Antonio Alanis,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:00CR0008--Robert L. Miller, Jr., Judge.

Argued February 13, 2001--Decided September 7, 2001



  Before Manion, Kanne, and Evans, Circuit
Judges.

  Kanne, Circuit Judge. Antonio Alanis,
defendant-appellant, was convicted of
conspiracy to distribute cocaine, two
counts of possession with intent to
distribute cocaine, one count of
possession with intent to distribute
marijuana, and two counts of being a
felon in possession. He was sentenced to
a term of imprisonment of 468 months, to
be followed by five years of supervised
release. Alanis appeals his conviction,
alleging that a myriad of errors
werecommitted by the district court judge
and the prosecuting attorney. Because we
find that Alanis was not prejudiced by
the errors that were made, we affirm his
conviction.

I.   History

  We review the district court’s findings
of fact for clear error. See United
States v. O’Brien, 238 F.3d 822, 825 (7th
Cir. 2001)./1 The numerous drug
transactions with which Alanis was
involved began, for the purposes of this
appeal, in June 1998. Alanis offered
Stephen Moore money to help him unload a
shipment of marijuana. He also asked
Moore to find a suitable location. Moore
proposed the property of his friend,
Raymond Selke, in Michigan City, Indiana,
and Alanis agreed to this location.
Alanis, Moore, and Selke subsequently
unloaded approximately 180 pounds
ofmarijuana from the refrigerated semi-
trailer that was delivered to Selke’s
residence. Alanis paid Selke and Moore
$9000 for their work.

  Marijuana apparently was not lucrative
enough because the three men entered into
an agreement to deal in cocaine. Alanis
directed Selke to buy an International
semi-tractor and provided him with the
money to do so. At Alanis’s behest, Selke
had his driver, Raymond Henckel, drive
the newly-purchased truck from Indiana to
Texas in the spring of 1999. Selke,
Moore, and Alanis flew to Texas on July
5, 1999; the reservation had been made
that morning by a woman named Sarah (the
name of Alanis’s wife). A few days later,
the truck was delivered to Alanis in
Texas, and Selke and Moore drove it back
to Indiana. Alanis returned home via
commercial airline. Upon arrival in
Indiana, Selke, Moore, and Alanis
unloaded the 135 kilogram-sized packages
of cocaine that had been hidden in a
false fuel tank in the tractor. Alanis
paid Selke and Moore $30,000 for their
efforts.

  The evidence at trial demonstrated that
seven separate cocaine loads were
transported from Texas to Indiana. In
addition to the first load in July 1999,
Selke and Moore drove three loads to
Indiana (one load with 720 packages of
cocaine in August 1999, one load with 540
packages in September, and one load with
540 packages in October), Henckel drove
one load (with 540 packages in October),
and Alanis arranged for two loads to be
brought to Indiana by an independent
driver (one with 405 packages at an
unspecified date, the other with 422
packages in November). Moore and Selke
helped Alanis unload the cocaine in each
of these instances. Testimony at trial
indicated that Alanis paid Selke and
Moore $90,000 for their work on the
August 1999 load alone. In all, the seven
loads involved 3,302 one-kilogram
packages of cocaine.

  It was the November 1999 load that
brought the conspiracy to an end. When
the independent driver arrived on
November 4, Alanis, Moore, and Selke met
at Selke’s home to unload the semi. They
moved the 422 packages of cocaine into a
Chevy pickup truck that Alanis had
brought to the premises. Unfortunately
for the conspirators, agents had been
performing surveillance at both Alanis’s
and Selke’s residences. When Selke and
Alanis left in the unloaded semi, they
were stopped by police. Agents ordered
the two occupants out of the truck and
found a fake bill of lading indicating
that the now empty semi had been carrying
cargo from "Alro Steel" in South Bend.
From that point forward, Selke agreed to
cooperate with the authorities. He
consented to a search of his property,
and the agents seized the 422 packages of
cocaine as well as the pickup truck. Lab
oratory analysis confirmed that the 422
kilograms of seized substances were
cocaine.

  After Selke agreed to cooperate, Moore
also agreed to cooperate. Both testified
at Alanis’s trial, and a substantial
amount of the evidence at trial was
derived from their testimony. As the
district court noted, "[t]heir testimony
was well corroborated by travel records,
telephone records, and the testimony of
each other." United States v. Alanis, No.
3:00CR0008RM, slip op. at 2 (N.D. Ill.
Aug. 4, 2000) (sentencing memorandum).
Both of the semi-tractors used to
transport the drugs to Indiana were
examined by agents, and the compartments
in which the cocaine had been hidden were
photographed and measured. Airline
records placed Alanis in Texas at times
consistent with the witness testimony;
reflected that someone named Sarah made
flight reservations for Alanis, Moore,
and Selke when they traveled in July and
August; reflected that someone named
Sarah made flight reservations for Moore
and Selke when they traveled in
September; and corroborated the times
that Henckel had been in Texas. Telephone
records corroborated the extensive phone
contact between Alanis, Selke, and Moore-
-178 calls from January 9, 1999 to
November 4, 1999--and also demonstrated
that all telephone contact terminated on
November 4, 1999, the date the agents
made the seizure at Selke’s residence.

  Law enforcement agents arrested Alanis
at his home on January 27, 2000, and
searched his home pursuant to a warrant.
They found a 9mm pistol in a bedside
nightstand in the master bedroom. Next to
the pistol were a pair of eyeglasses
similar in appearance to those worn by
Alanis at trial, and men’s clothing and
Alanis’s wallet were found nearby. Agents
also found a .22 caliber Marlin rifle in
a cabinet in the basement of Alanis’s
home. There was evidence that both
weapons had crossed state lines before
they arrived in Indiana.

  The original indictment, which charged
only two counts, was superceded by a
seven-count indictment returned on March
9, 2000. Alanis pleaded not guilty and
proceeded to trial. On April 3, 2000, a
jury found Alanis guilty of conspiracy to
distribute cocaine in violation of 21
U.S.C. sec. 846 (Count I), one count of
possession with intent to distribute
marijuana in violation of 21 U.S.C. sec.
841(a)(1) (Count II), two counts of
possession with intent to distribute
cocaine in violation of 21 U.S.C. sec.
841(a)(1) (Counts IV and V), and two
counts of possessing a firearm after a
felony conviction in violation of 18
U.S.C. sec. 922(g) (Counts VI and VII of
the indictment). The judge sentenced
Alanis to 468 months on each of counts I,
IV, and V; a term of 240 months on count
II; and a term of 120 months on each of
counts VI, and VII; all to be served
concurrently. After entry of Judgment on
August 4, 2000, Alanis filed his notice
of appeal.

II.    Analysis

  Alanis makes a number of claims on
appeal. He asserts that his rights were
violated in contravention of the Sixth
Amendment, the Equal Protection Clause,
the Due Process Clause, the Fifth
Amendment, and the rule set forth by the
Supreme Court in Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000). He also challenges the
sufficiency of the evidence relied on to
convict him and requests a new trial. We
will address each of these arguments in
turn.

A.    Sixth Amendment Claim

  Alanis alleges that he was deprived of
his Sixth Amendment right to a jury pool
representing a fair cross-section of the
community because the venire included
only one black person and no Hispanics.
Alanis presents a mixed question of law
and fact which we review de novo, United
States v. Raszkiewicz, 169 F.3d 459, 462
(7th Cir. 1999), though the district
court’s factual determinations are
reviewed for clear error, United States
v. Smallwood, 188 F.3d 905, 914 (7th Cir.
1999), cert. denied, 528 U.S. 1129, 120
S. Ct. 964, 145 L. Ed. 2d 836 (2000). To
establish a violation of the fair cross-
section requirement, Alanis must show:

(1) that the group alleged to be excluded
is a ’distinctive’ group in the
community; (2) that the representation of
this group in venires from which juries
are selected is not fair and reasonable
in relation to the number of such persons
in the community; and (3) that this under
representation is due to systematic
exclusion of this group in the
jury-selection process.

Johnson v. McCaughtry, 92 F.3d 585, 590
(7th Cir. 1996) (citing Duren v.
Missouri, 439 U.S. 357, 364, 99 S. Ct.
664, 58 L. Ed. 2d 579 (1979)). The
district court found that, even if Blacks
and Hispanics could be combined as one
group, Alanis failed to demonstrate the
existence of the second and third
elements.

  We agree that Alanis did not satisfy the
Duren standard. In the South Bend
Division of the Northern District of
Indiana, jury venires are drawn from
eleven counties, yet Alanis only
presented statistical evidence about the
racial composition of St. Joseph County,
the county in which the district court
was located. Without evidence about the
total representation of Blacks and
Hispanics in the community from which the
venire was drawn, there is no way to
determine whether the representation in
the venire was not fair and reasonable.
Without proof that any "distinctive
group" is under-represented, we cannot
determine that such a group was excluded
from the jury-selection process. We thus
decline to find that Alanis was deprived
of his Sixth Amendment right to a jury
pool representing a fair cross-section of
the community.

B.   Equal Protection Claims

1. Allegation of Purposeful Racial
Discrimination
  Alanis alleges that the government
violated his right to equal protection of
the law when it used a peremptory
challenge to strike the only black member
of the jury venire. At the time of the
strike, defense counsel objected based
upon Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Under Batson, a court must follow a three
stage analysis to determine whether a
peremptory strike was discriminatory: (1)
the defendant must make a prima facie
showing of discrimination, (2) the
prosecution must then present a
race-neutral explanation for striking the
juror, and (3) "the trial court must
decide whether the prosecution’s reasons
are pretextual and whether the defendant
has proven purposeful discrimination."
United States v. Jordan, 223 F.3d 676,
686 (7th Cir. 2000).

  Here, when the district court asked the
prosecution to explain his reasons for
the strike, the prosecutor explained as
follows:

I’m striking Mr. Cutler because of his
lack of education [and] the fact that
he’s unemployed. In particular, . . . he
said that he was trying to get a high
school diploma. His form indicated that
he only had 3 years of education, and I
think he was talking about grade school.
If he has 3 years of high school, we
don’t know. Thereason is because lack of
education.

Tr. of Trial Proceedings at I-143. The
district court determined that these were
legitimate, non-discriminatory reasons
for striking a potential juror and
overruled the Batson challenge. When
reviewing a district court’s
determination that a peremptory challenge
was not motivated by racial
discrimination, we will uphold that
determination unless it was clearly
erroneous. United States v. Jones, 224
F.3d 621, 624 (7th Cir. 2000).

  Peremptory strikes may be made for a
variety of reasons, so long as they are
not race based, United States v.
Smallwood, 188 F.3d 905, 915 (7th Cir.
1999), and lack of education is an
acknowledged, non-discriminatory reason
for striking a juror, see United States
v. Marin, 7 F.3d 679, 686-87 (7th Cir.
1993) ("The attainment of a certain
educational level has been accepted by
numerous circuits as a raceneutral
criterion for exercising a peremptory
challenge under the Batson mandate, and,
as far as we can determine, has been
rejected by none."). Alanis has not
presented the court with evidence that
the prosecution’s reasons were
pretextual. See Jones, 224 F.3d at 624
(noting that the opponent of the strike
bears the burden of proving racial
discrimination) (citing Purkett v. Elem,
514 U.S. 765, 768, 115 S. Ct. 1769, 131
L. Ed. 2d 834 (1995)). We thus find that
the district court’s ruling, determining
that the prosecution’s reasons were non-
discriminatory, was not clearly
erroneous.
2. Allegation of Selective Prosecution

  At time of trial, Alanis’s co-
conspirators--Moore and Selke--had not
been prosecuted, and Alanis asserts that
the reason he was prosecuted and they
were not is that he is Hispanic. Alanis
moved to dismiss based on selective
prosecution and the district court denied
the motion. We review a district court’s
decision to deny a motion to dismiss an
indictment for an abuse of discretion.
See United States v. McMutuary, 217 F.3d
477, 481 (7th Cir. 2000), cert. denied,
___ U.S. ___, 121 S. Ct. 502, 148 L. Ed.
2d 471 (2000).

  Criminal defendants bringing selective
prosecution claims must show "that the
federal prosecutorial policy had a
discriminatory effect and that it was
motivated by a discriminatory purpose."
United States v. Hayes, 236 F.3d 891, 895
(7th Cir. 2001) (quotation omitted). To
establish discriminatory effect, the
defendant must show "that similarly situ
ated individuals of a different race were
not prosecuted." Id.; see also Chavez v.
Ill. State Police, 251 F.3d 612, 638 (7th
Cir. 2001). Alanis intimates that no
factor other than race distinguished him
from those who were not being prosecuted.
In the court below, the prosecutor first
explained that Selke and Moore probably
would be prosecuted at some future date.
He then asserted that Alanis was not
similarly situated to Selke or Moore for
two main reasons: 1) the government
believed that Alanis played a larger role
in the conspiracy because he had
initiated the drug trafficking and also
directed the activities of Selke and
Moore, and 2) Selke and Moore were
cooperating with the government (and
eventually testified at Alanis’s trial).
The court agreed that the fact that Selke
and Moore were cooperating with the
government distinguished them from Alanis
and thus denied the motion to dismiss.
Tr. of Trial Proceedings at I-61 (citing
Jarrett v. United States, 822 F.2d 1438,
1444 (7th Cir. 1987) (finding that the
defendant was not similarly situated to
his accomplices because they both agreed
to cooperate with the government whereas
he refused to do so)).

  While a criminal defendant is certainly
not required to cooperate with the
government, it is axiomatic that an
individual who decides not to cooperate
with the government is not similarly
situated to one who does cooperate. See
Jarrett, 822 F.3d at 1444. The district
court noted that, if the "bigger picture
showed that in all similar cases the non-
Mexican suspects were given an
opportunity to cooperate to the exclusion
of those of Mexican descent, obviously
the issue might well be different." Tr.
of Trial Proceedings at I-61, 62. Yet, as
the district court noted, such was not
the case here. Instead, one conspirator
decided not to cooperate while the others
did. We thus find that the district court
did not abuse its discretion in denying
the motion to dismiss on the basis of
selective prosecution.


C.   Due Process Claims

1.   Brady Claim

  Alanis asserts that the government
violated its obligation under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963), by suppressing
evidence material to the defense, namely,
the government’s immunity agreements with
the testifying co-conspirators. Alanis
alleges that the co-conspirators "had
some sort of immunity" and that the
disclosure of such information would have
allowed the defense to impeach the
motivation and credibility of the
government witnesses. In response, the
government asserts that there were no
immunity agreements to disclose, and thus
no Brady obligations were violated.
Further, the government points out that
the defense knew the co-conspirators were
not being prosecuted and that the defense
used this information at trial to attack
the credibility of these witnesses. The
district court found that the disputed
evidence was not material under Brady, a
ruling that we review for abuse of
discretion. See United States v. Cruz-
Velasco, 224 F.3d 654, 662 (7th Cir.
2000).

  At trial, a prosecution witness
acknowledged that agents had initially
planned not to charge Selke, and Alanis
asserts that this information should have
been disclosed to the defense at the
outset. While both Selke and Moore were
likely hopeful that they would not be
prosecuted, neither of them were given
immunity in exchange for their testimony
at trial and the government had not
agreed not to prosecute them. The only
guarantee Selke and Moore had was a Rule
11 promise that the information each of
them provided would not be used against
them (though anything Selke said could be
used against Moore and vice versa) and
the defense was aware of the letters. The
defense was also aware that the co-
conspirators were not being prosecuted at
the time of Alanis’s trial and, as noted
above, it used this information to
question the witnesses’ credibility.
Alanis has failed to demonstrate that
"the prosecution suppressed evidence . .
. favorable to the defense . . . that .
. . was . . . material to an issue at
trial." United States v. Payne, 102 F.3d
289, 293 (7th Cir. 1996). We thus find
that the district court did not abuse its
discretion in rejecting Alanis’s Brady
claim.

2.   Prosecutorial Misconduct Claims

  Alanis alleges that the prosecutor
improperly vouched for the credibility of
various witnesses and gave personal opin
ions of things not in evidence. The first
claim is presented in four sentences with
one pertinent citation. The other claim
is slightly more thorough but lacks
citation to anything of precedential
value. Both claims are so weakly
developed and devoid of merit that we
decline to address them. See Jones, 224
F.3d at 626 ("Arguments that are not
adequately developed or supported are
waived, ergo we do not consider [them].")
(citation omitted).
D.   Fifth Amendment Claim

  Alanis asserts that the prosecution
improperly commented on his failure to
testify, in violation of his Fifth
Amendment right to remain silent. He
presents a series of statements made in
the prosecutor’s closing argument which,
he asserts, insinuated that his silence
was probative of guilt. "[I]ndirect
commentary on a defendant’s failure to
take the stand can . . . constitute a
violation of the defendant’s Fifth
Amendment privilege not to testify."
United States v. Aldaco, 201 F.3d 979,
987 (7th Cir. 2000). Moreover:

a prosecutor’s comment that the
government’s evidence on an issue is
uncontradicted, undenied, unrebutted,
undisputed, etc., will be a violation of
the defendant’s Fifth Amendment rights
if: 1) the only person who could have
contradicted, denied, rebutted, or
disputed the evidence was the defendant;
2) the prosecutor manifestly intended to
refer to a defendant’s silence; or 3) a
jury would naturally and necessarily take
the remark for a comment on the
defendant’s silence.

Id. (internal quotations omitted). The
defendant did not object at trial to any
of the comments he now criticizes, thus
we review the prosecutor’s comments for
plain error. See United States v.
Laurenzana, 113 F.3d 689, 695 (7th Cir.
1997) (citing United States v. Olano, 507
U.S. 725, 732, 113 S. Ct. 1770, 123 L.
Ed. 2d 508 (1993)).

  During closing argument, the prosecutor
asked the jury, "Why would [Alanis and
the co-conspirators] stop calling each
other if there wasn’t a conspiracy like
this?" He asked if the defense had talked
to the jury about the numerous trips to
Texas and then stated that the defense
case was "long on rhetoric, short on
content." He also asked whether the jury
had heard any explanation from the
defense about the bill of lading that
agents found in the semi-tractor on
November 4, 1999, which indicated that
cargo had been picked up at "Alro Steel"
in South Bend.

  In sum, the prosecutor’s comments were
directed towards reinforcing that the
government’s case was undisputed in
material respects. The prosecution may
"ask[ ] the jury to assess the value of
the existing evidence in light of the
countermeasures that were (or were not)
taken." United States v. Sblendorio, 830
F.2d 1382, 1391 (7th Cir. 1987). While
the prosecutor’s comments would have been
improper if Alanis was the only person
who could have contradicted, denied,
rebutted, or disputed the evidence, see
Aldaco, 201 F.3d at 987, such was not the
case here. The defense could have
produced evidence to explain why the
phone calls ceased without Alanis having
to testify; for example, phone company
records showing that his phone was
disconnected or a friend’s testimony that
Alanis, Selke, and Moore had a falling-
out. Similarly, with the trips to Texas
the defense could have presented proof
that Alanis was attending a conference
for work or visiting relatives with his
family. As for the bill of lading, a
witness from the steel company named on
the bill could have testified that the
bill was genuine. Further, none of these
comments were "manifestly intended to
refer to a defendant’s silence" and would
not have been likely taken "for a comment
on the defendant’s silence." Id. Plain
error review requires us to determine
whether the prosecutor’s remarks
"deprived the defendant of a fair trial"
and whether the failure to correct any
error would result in "a miscarriage of
justice." Laurenzana, 113 F.3d at 695. We
do not believe that the prosecutor’s com
ments were plainly erroneous and find
that they did not improperly burden
Alanis’s Fifth Amendment privilege not to
testify.

E.   Apprendi Claims

  Alanis alleges that both the grand jury
indictment and the instructions given to
his petit jury were defective in light of
the rule announced in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000), and that his
resulting sentence was without proper
foundation. He did not present these
challenges to the district court;
therefore, we review the indictment to
determine whether "it is so defective
that it does not, by any reasonable
construction, charge an offense for which
the defendant is convicted," United
States v. Irorere, 228 F.3d 816, 830 (7th
Cir. 2000) (internal quotation omitted),
and we review the jury instructions for
plain error, see United States v. Jones,
245 F.3d 645, 648 (7th Cir. 2001).

  We have recently addressed the law
applicable to Alanis’s situation:

  In Apprendi, the Supreme Court held that
"any fact other than the fact of a prior
conviction that increases the penalty for
an offense beyond the statutory maximum
penalty for that offense is an element of
the crime and so must be submitted to the
jury and proved beyond a reasonable
doubt." United States v. Jackson, 236
F.3d 886, 887 (7th Cir. 2001) (citing
Apprendi, 120 S. Ct. at 2362-63). In
cases involving drugs and alleged
violations of 21 U.S.C. sec.sec. 841 and
846, like the one now before us, we have
held that "before a defendant can be
sentenced to a term of imprisonment above
the default statutory maximum provided in
sec. 841(b)(1)(C) or (D), Apprendi
requires that a drug type and amount
sufficient to trigger the higher
statutory maximums of sec. 841(b)(1)(A)
or (B) be charged in the indictment and
found by the jury." United States v.
Mietus, 237 F.3d 866, 874 (7th Cir.
2001). When a drug amount is not charged
in an indictment or included in
instructions submitted to a jury, the
statutory maximum under sec. 841(b) is to
be determined without making any
reference to drug amount. See United
States v. Westmoreland, 240 F.3d 618, 632
(7th Cir. 2001).

Jones, 245 F.3d at 648. With this legal
framework in mind, we review the various
counts of which Alanis was convicted.


1.   The Conspiracy Count: Count I

  Count I of the indictment charged Alanis
with conspiring "to distribute and to
possess with the intent to distribute . .
. cocaine . . . in an amount in excess of
five (5) kilograms" in violation of 21
U.S.C. sec.sec. 841(a)(1)/2 and 846./3
The drug amount was thus charged in the
indictment as required by Apprendi. The
jury instructions did not, however, make
any reference to the amount of cocaine
involved in the conspiracy. Rather, the
instructions stated that the jury had to
find "that the conspiracy as charged in
Count I" was proved beyond a reasonable
doubt. Whether drug quantity is
"submitted to a jury" when the jury
instructions do not mention drug quantity
but instead incorporate an indictment in
which drug quantity was charged is an
issue our court has yet to consider. Even
if we might find this type of reference
enough to satisfy Apprendi in certain
instances, however, we are not confident
that the jury even read the indictment,
much less found beyond a reasonable doubt
that Alanis possessed the drug quantity
charged here. First of all, the
indictment was not read to the jury; the
jurors were simply given a copy along
with the trial exhibits and jury
instructions. Further, the jury
instructions replicated the description
of the charge, thus precluding any need
to read the indictment in order to find
out what had been charged in Count I:

Count I of the indictment charges Mr.
Alanis with conspiracy to distribute, and
possess with intent to distribute, a
controlled substance. The indictment
alleges that, in or around June 1999 and
continuing to and including November 4,
1999, Mr. Alanis and others conspired to
knowingly and intentionally distribute,
and possess with intent to distribute,
cocaine.

Neither was the quantity included on the
jury verdict. It is possible, then, that
the jury found Alanis guilty of
conspiring to distribute and possess
cocaine without ever determining the
quantity involved in the conspiracy.

  The judge sentenced Alanis to 468 months
on Count I in accord with 21 U.S.C. sec.
841(b)(1)(A)--this is above the default
statutory maximum of twenty years
provided in 21 U.S.C. sec. 841(b)(1)(C)
and is also above the thirty-year maximum
for a defendant previously convicted of a
felony drug offense. See 21 U.S.C. sec.
841;/4 see also Jones, 245 F.3d. at
650-51. Because Alanis was "sentenced to
a term of imprisonment above the default
statutory maximum" without a jury
determination of the amount of drugs
involved, he was sentenced in violation
of the rule set forth in Apprendi. See
Jones, 245 F.3d at 648 (internal
quotation and citation omitted).

  Our review is for plain error review. In
order to prevail, Alanis must show not
only that there was plain error, but also
that the error "affected [his]
substantial rights" and "seriously
affected the fairness, integrity, or
public reputation of the judicial
proceedings." United States v. Nance, 236
F.3d 820, 824 (7th Cir. 2000), petition
for cert. filed, No. 00-9633 (Apr. 24,
2001). When there was "overwhelming"
evidence that the defendant’s offense
involved an amount sufficient to trigger
the higher statutory maximums, "he is not
entitled to be re-sentenced on the basis
of Apprendi." Jackson, 236 F.3d at 888
(quotation omitted). Here, there was
overwhelming evidence that more than five
kilograms were involved in the
conspiracy. Even if the only load
considered was the load seized by agents
on November 4, 1999, that load contained
422 kilograms of cocaine. We have found
that an Apprendi error does not seriously
affect the fairness, integrity, or public
reputation of the judicial proceedings
where the record provides overwhelming
support for the conclusion that more than
five kilograms were involved, see Nance,
236 F.3d at 826, and this situation
clearly falls into that category, see id.
("If it is clear beyond a reasonable
doubt that a properly worded indictment
and a properly instructed jury would have
found [the defendant] guilty absent this
error, then we cannot say that the error
was so serious that it requires us to set
aside the judgment."); see also Jackson,
236 F.3d at 888 ("No reasonable jury
could have failed to convict Jackson of
being involved in the sale of hundreds,
if not thousands, of grams of crack. The
failure to ask the jury to determine
whether the amount was at least 5 grams
was harmless far beyond a reasonable
doubt."). We thus find that Alanis is not
entitled to be re-sentenced on Count I.


2.   The Cocaine Counts: Counts IV and V

  Counts IV and V both charged that Alanis
"possess[ed] with intent to distribute
cocaine . . . in excess of five (5)
kilograms," and the latter count noted
that the amount was "approximately 422
kilograms."/5 Although both counts of
the indictment charged a specific amount
of drugs, the jury instructions did not
do so. And as with Count I, Alanis’s
sentence was above the default statutory
maximum--468 months on each of Counts IV
and V. We thus reach the same conclusion
as we did with respect to Count I--
Apprendi was violated because the drug
quantity charged in Counts IV and V was
not submitted to the jury and proved
beyond a reasonable doubt.

  We again find, however, that this error
does not require that Alanis be re-
sentenced. Count V, which pertained to
the November 4 seizure, clearly involved
more than 5 kilograms. With respect to
Count IV, the witnesses testified that
there was at least 150 kilograms and as
much as 300 kilograms of cocaine (the
district court discounted this testimony
and determined that Alanis was
responsible for 135 kilograms). The
defense never asserted that the witnesses
were exaggerating the amounts and it made
no attempt to show that Alanis possessed
a quantity less than five kilograms.
Instead, the defense strategy at trial
was to argue that Alanis was innocent of
all charges. The jury obviously
disagreed. Based upon this record, there
is no doubt that a properly instructed
jury would have found Alanis guilty of
possessing more than five kilograms of
cocaine on both occasions charged in
Counts IV and V. See Nance, 236 F.3d at
826.

3.   The Marijuana Count: Count II

  With respect to the marijuana count,
Count II, the indictment did not charge a
specific amount of marijuana, it simply
alleged that Alanis "possess[ed] with
intent to distribute marijuana." This is
clearly a violation of Apprendi. See
Jones, 245 F.3d at 648. Yet, even if we
remanded for re-sentencing, obtaining a
reduced sentence on Count II would not
reduce Alanis’s time in prison. The judge
sentenced Alanis to 468 months on each of
Counts I, IV, and V and a term of 240
months on Count II, all to be served
concurrently. Because the sentence for
Count II runs concurrently to the
sentence for Counts I, IV, and V--which
we have already determined to be proper--
the error had no effect on Alanis’s
sentence and thus did not prejudice him.
See Nance, 236 F.3d at 824.

  Nor did the marijuana count have any
effect on the court’s determination of
his offense level under the United States
Sentencing Guidelines./6 The court
grouped all of Alanis’s drug counts
together for sentencing, used the drug
equivalency table to convert the relevant
amount of cocaine to marijuana (the table
equates 1 gram of powder cocaine to 200
grams of marijuana), and then added the
amount of marijuana charged in Count
II,/7 yielding a grand total of
660,481.648 kilograms of marijuana. Under
the relevant sentencing guideline, an
offense that involves more than 30,000
kilograms of marijuana is assigned an
offense level of 38. Thus, even if the
81.648 kilograms of marijuana were
removed from the total drug amount,
Alanis would not have fallen into a lower
offense level. Alanis’s substantial
rights were clearly not affected by the
district court’s error.

F.   Insufficiency of the Evidence Claims

  Alanis’s final assertion is that the
evidence presented at trial was not
sufficient to sustain the verdict beyond
a reasonable doubt. He raised this
challenge before the district court by
orally moving for a new trial (which the
judge construed as a Rule 33 motion for
new trial, as provided in the Federal
Rules of Criminal Procedure) but the
judge denied the motion. See United
States v. Alanis, No. 3:00CR0008RM, slip
op. (N.D. Ill. April 6, 2000)./8 We
limit our discussion of this issue to
that which is challenged in Alanis’s
brief: his conviction on Counts VI and
VII for being a felon in possession of
firearms that traveled in interstate
commerce, in violation of 18 U.S.C. sec.
922(g)./9 The jury found Alanis guilty
of possession of a Smith and Wesson 9mm
pistol and a Marlin .22 caliber rifle on
or about January 27, 2000. He argues that
the government did not prove that he was
in possession or control of either
weapon, pointing out that the pistol
belonged to his wife and that the rifle
was found inoperable in the basement, and
had been left there by the previous owner
of the house. Alanis does not challenge
that he lived in the house where the guns
were found but rather claims that he was
unaware that the guns were present in the
house, and thus he could not be guilty of
knowing possession./10

  "When considering a motion for a new
trial based on the sufficiency of the
evidence, we grant such a request only if
the verdict is against the manifest
weight of the evidence. . . . A district
court’s denial of a motion for a new
trial will be reversed only upon a
showing that the court abused its
discretion." Tullis v. Townley Eng’g &
Mfg. Co., 243 F.3d 1058, 1062 (7th Cir.
2001) (citations omitted). We consider
the evidence in the light most favorable
to the government, drawing all reasonable
inferences in its favor. See Alverio v.
Sam’s Warehouse Club, Inc., 253 F.3d 933,
939 (7th Cir. 2001); see also United
States v. Kosth, 257 F.3d 712, 718 (7th
Cir. 2001).

  Under 18 U.S.C. sec. 922(g)(1), the
government had to "establish beyond a
reasonable doubt that (1) [Alanis] had a
previous felony conviction, (2) [he]
possessed a firearm, and (3) the firearm
had traveled in or affected interstate
commerce." United States v. Walls, 225
F.3d 858, 864 (7th Cir. 2000). Alanis
only challenges the second element,
asserting that he did not possess a
firearm within the meaning of the
statute. It is well established that
possession may be either actual or
constructive. See United States v.
Kitchen, 57 F.3d 516, 520 (7th Cir.
1995). The government does not contend
that Alanis had actual possession,
seemingly because there was no evidence
that Alanis "ever had physical control
over the gun." Walls, 225 F.3d at 866. In
the absence of "direct physical contact .
. . , a defendant may nevertheless have
constructive possession if she knowingly
has the power and the intention at a
given time to exercise dominion and
control over an object, either directly
or through others." Id. (internal
quotation and citations omitted). We have
repeatedly held that "constructive
possession may be established by a
showing that the firearm was seized at
the defendant’s residence." Id. at 867
(citing Kitchen, 57 F.3d at 521); see
also United States v. Hopson, 184 F.3d
634, 636 (7th Cir. 1999) (noting that the
police found the guns among the
defendant’s things in the defendant’s
home), cert. denied, 528 U.S. 1093, 120
S. Ct. 828, 145 L. Ed. 2d 696 (2000);
United States v. Taylor, 154 F.3d 675,
682 (7th Cir. 1998) (finding constructive
possession where there was substantial
evidence that the defendant lived at the
residence where the weapons were seized,
that he was the only man at the
residence, and that "[t]he weapons were
found in a padlocked closet near [his]
bed . . . [that contained] only men’s
clothing[,] cologne, [and] a receipt with
his name on it"). When a gun is found in
a defendant’s bedroom, as here, it would
not be improper for the jury to "infer
that [the defendant] had both knowledge
of the firearm and an intent to exercise
dominion and control over it merely from
its presence in the bedroom that [he] . .
. shared with [his wife]." Walls, 225
F.3d at 867.

  Alanis asserts that the pistol was his
wife’s and that it was found in her
bedroom. However, it is not material that
Alanis’s wife might have owned the pistol
because "[c]onstructive possession may be
either sole or joint." Kitchen, 57 F.3d
at 521. Thus, her ownership does not
preclude Alanis’s possession. Further,
the government presented sufficient
evidence to support a finding that the
bedroom was shared by Alanis and his
wife, and that the gun was found in a
nightstand next to his bed, with his
eyeglasses, clothing, and wallet nearby.

  Alanis also asserts that, because the
rifle was inoperable and found in the
basement, the government failed to
demonstrate possession. We have
previously rejected the contention that
the government must "prove that the gun
was operable," United States v. Buggs,
904 F.2d 1070, 1075 (7th Cir. 1990),
because it is sufficient to show that
"the gun was designed to fire," id.
(quotation and citation omitted). There
is no disputing that the item seized was
indeed a rifle that was designed to fire.
In sum, we cannot find that the evidence
was so insufficient as to justify
overruling the district court’s decision
not to grant a new trial.

III.   Conclusion

  For the foregoing reasons, we AFFIRM the
conviction and sentence of Antonio
Alanis.

FOOTNOTES

/1 Because the district court noted that "persons in
the drug trade . . . often tend . . . to over-
estimate the quantities they actually handled,"
the court "discount[ed] the eyewitnesses’ recol-
lection of drug quantities by ten percent."
United States v. Alanis, No. 3:00CR0008RM, slip
op. at 2-3 (N.D. Ill. Aug. 4, 2000) (sentencing
memorandum). For the purposes of this opinion, we
use the drug amounts as determined by the dis-
trict court at sentencing rather than those
asserted by the government.

/2 Section 841(a) states that "it shall be unlawful
for any person knowingly or intentionally--1) to
manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dis-
pense, a controlled substance." 21 U.S.C. sec.
841(a).

/3 Section 846 states: "Any person who attempts or
conspires to commit any offense defined in this
subchapter shall be subject to the same penalties
as those prescribed for the offense, the commis-
sion of which was the object of the attempt or
conspiracy." 21 U.S.C. sec. 846.

/4 21 U.S.C. sec. 841 provides:

(b) . . . [A]ny person who violates subsection
(a) of this section shall be sentenced as fol-
lows:

(1)(A) In the case of a violation of subsection
(a) of this section involving-- . . .

(ii) 5 kilograms or more of a mixture or sub-
stance containing a detectable amount of-- . . .

(II) cocaine, its salts, optical and geometric
isomers, and salts of isomers; . . .

such person shall be sentenced to a term of
imprisonment which may not be less than 10 years
or more than life . . . .

(C) In the case of a controlled substance in
schedule I or II [which includes cocaine], such
person shall be sentenced to a term of imprison-
ment of not more than 20 years . . . . If any
person commits such a violation after a prior
conviction for a felony drug offense has become
final, such person shall be sentenced to a term
of imprisonment of not more than 30 years . . .
.

/5 Count IV charged that, in or around July 1999,
Alanis "possess[ed] with intent to distribute
cocaine . . . in excess of five (5) kilograms."
Count V charged that on November 4, 1999 he
"possess[ed] with intent to distribute cocaine .
. . in excess of five (5) kilograms (approximate-
ly 422 kilograms)."
/6 At sentencing, the judge calculated Alanis’s
offense level at 38 (due to his prior felony
conviction); increased his offense level by two
levels pursuant to section 3B1.1 of the United
States Sentencing Guidelines, based on Alanis’s
role in organizing the offense; and determined
that he fell into criminal history category III.

/7 The relevant quantity of marijuana was estimated
based upon the witness testimony at trial. Moore
and Selke had testified that the marijuana pos-
sessed by Alanis filled the bed of a pickup truck
two-thirds of the way. Moore estimated that there
were at least 90 packages in the truck bed and
that each package weighed acouple of pounds
(Selke thought there were over 100 packages). The
judge thus determined that there were 90 packages
of two pounds, resulting in 180 pounds of mari-
juana (an amount equal to 81.648 kilograms).

/8 Alanis’s brief argues that he should have been
granted a new trial, and states that his oral
motion for a new trial was accepted as a Rule 33
motion. Indeed, the trial transcript reveals
that, once counsel began to argue that the evi-
dence was insufficient, the court asked whether
counsel wanted "to file a motion under Rule 33
for a new trial." Tr. of Trial Proceedings at V-
186. The judge’s memorandum and order did not
treat the motion as a Rule 33 motion, however; it
referred to it as an oral motion for judgment of
acquittal pursuant to Rule 29(c). See Alanis,
slip op. at 1. Because neither Alanis nor the
government mentioned this issue on appeal, we
address Alanis’s claim as presented in his appel-
late brief (and we acknowledge that the standard
for granting a new trial under Rule 33 is less
strenuous than the standard for granting a motion
for judgment of acquittal under Rule 29(c)).

/9 18 U.S.C. sec. 922(g) states, in relevant part:

It shall be unlawful for any person--(1) who has
been convicted in any court of, a crime punish-
able by imprisonment for a term exceeding one
year; . . . to ship or transport ininterstate or
foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to re-
ceive any firearm or ammunition which has been
shipped or transported in interstate or foreign
commerce.

/10 It is not clear whether the government attempted
to demonstrate that the pistol and rifle were
acquired separately and at different times or
places. If they did not make such a showing, the
indictment under which Alanis was charged would
be duplicitous under our recent holding in United
States v. Buchmeier, 255 F.3d 415, 422 (7th Cir.
2001) (holding that, without such a showing, "the
government may only charge [the] defendant with
one violation of sec. 922(g)(1) . . . , regard-
less of the actual quantity offirearms in-
volved"). The defense did not challenge the
indictment on this ground, yet even if it had,
because the 120-month sentence Alanis received on
the weapons counts is to be served concurrently
with the 468 months on each of Counts I, IV, and
V, any error was harmless. See id. at 426.
