                       NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                 Fed. R. App. P. 32.1



           United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                            Argued September 28, 2007
                             Decided October 31, 2007

                                     Before

                          Hon. ILANA DIAMOND ROVNER, Circuit Judge

                          Hon. DIANE P. WOOD, Circuit Judge

                          Hon. TERENCE T. EVANS, Circuit Judge


No. 06-4217

UNITED STATES OF AMERICA,                   Appeal from the United States
              Plaintiff-Appellee,           District Court for the Northern District
                                            of Illinois, Eastern Division.
                  v.
                                            No. 04 CR 223
MARTA RUCINSKI,
          Defendant-Appellant.              Robert W. Gettleman, Judge.


                                       ORDER

      Marta Rucinski was convicted, after a jury trial, on a charge that she
possessed methamphetamine with intent to distribute. She appeals. We affirm her
conviction.

       Rucinski is a methamphetamine user and dealer. Unfortunately, she was
obtaining her supplies from a person who was previously caught by the Drug
Enforcement Administration. That person, as is fairly typical in cases like this,
cooperated with the government. Rucinski had an ongoing relationship with her
supplier, Brad Fisher. Her first buy from him was a two-ounce quantity. Almost
immediately, Fisher began to front her half pounds at a time. She paid him for one
delivery when she received the next half pound. There were five half-pound
No. 06-4217                                                                      2



transactions. Then, in a transaction monitored by the DEA after Fisher was
caught, Rucinski received what she thought was a pound of methamphetamine.
She gave him $4,000 in partial payment for a past delivery and partly for the new
supply. She agreed to pay her balance, at the going price of $12,000 per pound, in
two days. After the deal went down, Rucinski was arrested as she left Fisher’s
vehicle.

       After her arrest, Rucinski also agreed to cooperate with the government and,
in grand jury testimony, provided information about an ecstasy distribution ring.
She confessed to being an ecstasy and cocaine dealer. In addition, she told Dr. Carl
Wahlstrom, an expert she called to testify at trial about her various psychological
disorders, that she was selling methamphetamine so that she would be able to get
her personal supply free. Wahlstrom determined that Rucinski intended to sell at
least some of the methamphetamine she received from Fisher.

      Rucinski was indicted for

              knowingly and intentionally attempt[ing] to possess with
              intent to distribute a controlled substance, namely, in
              excess of 350 grams of methamphetamine, a schedule II
              Controlled Substance, in violation of Title 21, United
              States Code, Section 841(a)(1) . . . [and] Section 846.

As we said, a jury found her guilty as charged.

       In this appeal, Rucinski contends that because of the reference to 350 grams
of methamphetamine1 in the indictment, the jury should have been instructed that
the government was required to prove that she intended to distribute an amount in
excess of 350 grams. Her claim is that when the government includes the drug
quantity in the indictment, it becomes an element of the offense. She says the
district judge constructively amended the indictment by not giving such an
instruction, all in violation of her Fifth Amendment rights. Growing out of this
argument is her claim that the government improperly told the jury it did not have
to prove the amount. Rucinski is wrong on the law.

       The elements of the charged offense are that the defendant knowingly and
intentionally attempted to possess a controlled substance and that the defendant
attempted to posses it with the intent to deliver it to another person. The jury was


      1
          A pound of methamphetamine weighs approximately 450 grams.
No. 06-4217                                                                        3



instructed as to those elements. Not only is the quantity of drugs not an element of
the offense, under § 841(a) a defendant can be found guilty if it is shown that she
intended to distribute a “measurable amount” of a controlled substance. United
States v. Macedo, 406 F.3d 778 (7th Cir. 2005). The principle is not affected by the
inclusion of a specified drug quantity in an indictment. Id.

        Nor is it affected by Apprendi v. New Jersey, 530 U.S. 466 (2000), which
established that any fact, other than a prior conviction, that increases a penalty
beyond the statutory maximum must be proved beyond a reasonable doubt.
Following Apprendi, it is true that the amount, while not important under § 841(a),
becomes important under § 841(b), which sets out maximum penalties for various
amounts of various drugs. We have said that Apprendi “strongly affects how § 841
is implemented.” In a post-Apprendi world, the “indictment should specify, and the
trier of fact must be instructed to determine, not only the elements of the offense,
which appear in § 841(a), but also the events listed in § 841(b) on which the
prosecutor relies to establish the maximum sentence.” United States v. Brough,
243 F.3d 1078, 1080 (7th Cir. 2001). But even if no amount is specified, a defendant
would still face a penalty, if only the least serious one-year penalty. Id. In other
words, the amount, which we have said should be specified in the indictment,
affects sentencing issues, not guilt. There was no error in the jury instruction.

       Even when warned by the district judge of the folly of her approach, Rucinski
waived her right, derived from Apprendi, to have the jury find the drug amount for
sentencing purposes. In fact, she conceded that she attempted to possess 450
grams, not just 350. Her trial strategy seemed to be to claim that she had the
methamphetamine for personal use with no intention to distribute any of it, or at
least very, very little of it. She says she then could not be found guilty. The all-or-
nothing approach did not work because, as we have indicated, it was based on an
incorrect understanding of the law.

      It follows, then, that there was no error in the prosecutor’s statement that
the government was not required to prove the exact drug amount, nor was there
any error in the jury instructions on the point.

      Accordingly, the judgment of conviction is AFFIRMED.
