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

No. 04-3159
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

FIDEL GARCIA,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 03 CR 421-1—Amy J. St. Eve, Judge.
                          ____________
 ARGUED NOVEMBER 2, 2005—DECIDED FEBRUARY 28, 2006
                   ____________


 Before COFFEY, EASTERBROOK, and WILLIAMS, Circuit
Judges.
  COFFEY, Circuit Judge. A jury found Fidel Garcia guilty
of one count of conspiracy to distribute, 21 U.S.C. § 846, and
one count of possession with intent to distribute cocaine, 21
U.S.C. § 841(a)(1). The district court sentenced him to two
concurrent terms of 126 months’ imprisonment and two
concurrent terms of 5 years’ supervised release. Garcia now
contends that his conviction is illegal because the district
court “deprived [him] of the presumption of innocence” by
allowing an expert to testify that innocent parties do not
attend drug deals. Garcia also argues, and the government
concedes, that his sentence is erroneous under United
States v. Booker, 543 U.S. 220 (2005). We affirm the
2                                               No. 04-3159

conviction, but vacate the sentence and remand the case for
resentencing under United States v. Schlifer, 403 F.3d 849
(7th Cir. 2005).


                   I. BACKGROUND
  Garcia was arrested on April 19, 2003, during a DEA
sting operation and subsequently indicted with two
others caught in the sting: Juan Angulo-Hernandez, who
worked at the construction company where Garcia was
union steward, and Mario Jara, Garcia’s brother-in-law.
The indictment charged each of them with one count of
conspiring to distribute cocaine and one count of possession
of cocaine with intent to distribute.
  At trial, the government presented evidence that on April
19, 2003, Angulo-Hernandez phoned Garcia, asking him for
“six burritos, meaning six kilos of cocaine,” for sale to DEA
informant, Roger Woods. Garcia met with Angulo-
Hernandez; later they were joined by Jara, who did not
know Angulo-Hernandez. Garcia, Jara, and Angulo-
Hernandez then went together to the meeting with Woods.
Angulo-Hernandez drove Garcia’s Ford Expedition, and
Garcia accompanied him as passenger. Garcia directed Jara
to follow them in a Nissan carrying six kilograms of cocaine.
  Angulo-Hernandez met Woods as arranged, and then, at
Woods’s request, drove with Garcia to Woods’s house,
followed by Jara. Angulo-Hernandez and Jara entered
the house with Woods while Garcia remained in the Ford
Expedition. Some time later, Woods told Angulo-Hernandez
and Jara that he wanted to see the cocaine. Jara went
outside to speak with Garcia. When he came back, Jara
took Woods to the Nissan and showed him the cocaine.
  Next, Woods told Angulo-Hernandez and Jara that they
needed to go to the home of one of his friends to complete
the transaction. Woods drove his own car, followed by
No. 04-3159                                                 3

Angulo-Hernandez and Garcia in the Ford Expedition and
Jara in the Nissan. A short time later, the DEA and local
law enforcement agents arrested Garcia, Jara and Angulo-
Hernandez, and took them into custody.
  In addition to direct testimony about the events preceding
the arrest from Woods, his DEA handler, and Angulo-
Hernandez (who provided evidence that Garcia was his
drug source), the government submitted cell phone rec-
ords that reflected calls between Angulo-Hernandez and
Garcia, and between Garcia and Jara (but none between
Angulo-Hernandez and Jara), as well as vehicle registration
documents connecting Garcia (and no one else) with both
the Ford Expedition and the Nissan.
  The government also called Sergeant Robert Coleman
who qualified as an expert in narcotics trafficking to testify
to common practices in structuring drug deals. Over Gar-
cia’s objections, the court permitted Coleman to testify that
none of the more than one hundred drug transactions he
had personally observed had involved an innocent adult
present at the scene. Furthermore, he explained that drug
dealers typically do not allow people not involved in the
transaction to be present because of the risk that they
might leak the information to law enforcement authorities.
In its closing arguments, the government emphasized this
testimony, stating twice: “[y]ou heard . . . innocent third
parties don’t go to drug deals.”
  Garcia decided not to present any evidence in his de-
fense and simply argued that the government’s evidence
was insufficient, relying on the presumption of innocence
and on the fact that there was no evidence that he par-
ticipated in negotiations with Woods. Among other things,
he asked the jury to use “common sense” to reject Coleman’s
expert testimony, and warned them that they could not
convict him because of his mere presence during the
transaction. The district court issued instructions concern-
4                                               No. 04-3159

ing the government’s burden of proof, the presumption
of innocence, and the insufficiency of mere presence and
guilt by association as a basis for conviction.
  The jury found Garcia guilty on both counts set forth in
the indictment. The presentence report (“PSR”) recom-
mended a base offense level of 32 for an offense involving at
least 5 but less than 15 kilograms of cocaine, U.S.S.G.
§ 2D1.1(a)(3), (c)(4), and a two-level upward adjustment for
a managerial or supervisory role in the offense, U.S.S.G.
§ 3B1.1(c). The PSR also recommended a criminal history
category of II. These factors considered in combination with
each other produced a guideline range of 168 to 210 months.
Garcia, however, persuaded the trial judge that his Sixth
Amendment rights under Blakely v. Washington, 542 U.S.
296 (2004), would be violated by application of the adjust-
ment for his role in the offense and the second criminal
history point that raised him to a criminal history category
of II. The district court calculated the guideline range
minus any adjustment for Garcia’s role in the offense and
using a Criminal History category of I. This resulted in a
range of 121 to 151 months (just above the statutory
minimum of 120 months, see 21 U.S.C. § 841(b)(1)(A)).
Treating the guidelines as mandatory, the district court
thought neither the high nor the low end of the range
appropriate and imposed a sentence of 126 months.


                      II. ANALYSIS
  In framing his argument, Garcia suggests that he was
deprived of his “presumption of innocence”: by the admis-
sion of Coleman’s expert testimony, and by the govern-
ment’s use of the testimony to argue in closing that he
was involved in the drug deal. We treat the claims as one.
Because the government’s arguments did no more than
summarize Coleman’s testimony, any error with regard to
them is adequately treated in addressing whether the
admission of the expert testimony was error.
No. 04-3159                                                  5

  Initially we note that we have previously approved the
admissibility of what Garcia himself admits is “substan-
tially similar” testimony under the Federal Rules of Evi-
dence. In United States v. Love, 336 F.3d 643, 645 (7th Cir.
2003), we considered expert testimony that it was
“[un]common for persons involved in a drug conspiracy” to
allow other people to be present who are not involved in the
particular transaction. Because the expert did not refer to
the intent of the defendant or to his mental state, we
rejected the defendant’s claim that the testimony violated
Federal Rule of Evidence 704(b) (forbidding testimony from
expert witnesses as to “whether the defendant did or did not
have the mental state or condition constituting an element
of the crime charged”). Id. at 647. Moreover, we have relied
upon and repeatedly upheld the admission of testimony of
the same general nature concerning “common practices of
drug dealers and how typical drug sales occur.” Id.; see, e.g.,
United States v. Cruz-Velasco, 224 F.3d 654, 660 (7th Cir.
2000). We suggested at oral argument that such testimony
might be impeached as inadequately scientific under
Federal Rule of Evidence 702 (requiring expert testimony to
be “based upon sufficient facts or data” and to be “the
product of reliable principles and methods”), but this
possibility cannot help Garcia because he did not raise a
proper Rule 702 objection in the district court. The admissi-
bility of Coleman’s testimony thus is a high hurdle to
overcome.
  Garcia argues that the challenge he now brings is a
different sort of challenge, but even if it is, it must fail
because he has failed to demonstrate that Coleman’s
testimony did impact the presumption of innocence. The
Supreme Court defined the presumption in Taylor v.
Kentucky, 436 U.S. 478 (1978), as having two functions. It
is first “a way of describing the prosecution’s duty both to
produce evidence of guilt and to convince the jury beyond a
reasonable doubt,” id. at 483, n.12; it also has the
6                                                No. 04-3159

special function of “ ‘caution[ing] the jury to put away from
their minds all the suspicion that arises from the arrest, the
indictment, and the arraignment, and to reach their
conclusion solely from the legal evidence adduced,’ ” id. at
484-85 (quoting 9 J. Wigmore, Evidence § 2511, at 407 (3d
ed. 1940)). Thus, the presumption is violated when presen-
tation of evidence at trial affects the quantum of proof
required for conviction or when the jury is encouraged
(or allowed) to consider facts which have not been received
in evidence. Garcia has failed to demonstrate either sort
of violation.
  We understand him to be invoking the first function of
the presumption of innocence when he implies that ask-
ing the jury to draw any inference that he knew of the drug
transaction altered the quantum of proof required of the
government. But his reasoning is flawed. Although some
inferences may do so, the one at issue in this case does not
because it was a rational inference of guilt and not a
mandatory one. Non-mandatory inferences do not affect the
application of the reasonable doubt standard unless “under
the facts of the case, there is no rational way the trier of
fact could make the connection permitted by the inference.”
County Court of Ulster County, New York v. Allen, 442 U.S.
140 (1979). See also United States v. Turcotte, 405 F.3d 515,
527 n.4 (7th Cir. 2005) (noting that a “non-mandatory
inference does not place any improper evidentiary burden
on the defendant as long as ‘there is a “rational connection”
between the basic facts that the prosecution proved and the
ultimate fact presumed, and the latter is “more likely than
not to flow from” the former’ ”) (quoting Allen, 442 U.S. at
165). In Turcotte, in fact, we “prescribe[d]” an inference as
to the defendant’s knowledge of a certain fact necessary to
prove guilt. See Turcotte, 405 F.3d at 527.
  Coleman’s opinion that it is unlikely for innocent parties
to be present at drug deals is most logical and reasonable
because it accords with expert experience as well as com-
No. 04-3159                                                 7

mon sense. See United States v. Starks, 309 F.3d 1017, 1023
(7th Cir. 2002); United States v. Zafiro, 945 F.2d 881, 888
(7th Cir. 1991), aff’d on other grounds, 506 U.S. 534 (1993).
See also Allen, 442 U.S. at 165 n.27 (invoking statutory
presumption that all occupants of vehicle are considered to
be in possession of dangerous drugs found in vehicle
because legislature “[did] not believe that per-
sons transporting dealership quantities of contraband are
likely to go driving about with innocent friends or that they
are likely to pick up strangers”).
   The inference of Garcia’s involvement in the deal was also
non-mandatory. Even when an inference is characterized as
a legal presumption, it is non-mandatory (and there is no
constitutional difficulty) as long as the presumption “leaves
the trier of fact free to credit or reject the inference and
does not shift the burden of proof.” Allen, 442 U.S. at 157.
But here the jury was never advised to treat the inference
as a presumption. In United States v. Burns, 683 F.2d 1056,
1060 (7th Cir. 1982) (per curiam), we held that an inference
contained in a jury instruction was non-mandatory because
it was “not expressly labeled as a legal presumption.” There
is still less reason for concern in this case, because the
inference was not directed by the court’s instructions but
only by testimony and argument. Indeed, it is difficult to
conceive how the jurors could have construed the inference
as mandatory, after the district court specifically instructed
them not to convict Garcia solely because of his presence
during the deal or because of his association with admitted
drug dealers.
  Garcia has also failed to demonstrate that Coleman’s
testimony interfered materially with what Taylor de-
scribes as the second function of the presumption of inno-
cence: that of confining the jury’s consideration to
the legitimate evidence. See Taylor, 436 U.S. at 484-87;
United States v. DeJohn, 638 F.2d 1048, 1057 (7th Cir.
1981). In Taylor, the Supreme Court suggested that there
8                                                No. 04-3159

might be an error of constitutional dimensions in the
government’s invitation to jurors to consider the defendant’s
status as a defendant to be evidence of his guilt. Taylor, 436
U.S. at 486-87. The Court distinguished “the suspicion that
arises from the arrest, the indictment, and the arraign-
ment” from “the legal evidence adduced.” Id. at 485. Garcia
contends that the government made the same mistake
during his trial. But the government did not imply that
Garcia was guilty because he was a defendant. It did not
refer to his being a defendant at all. Moreover, the Court
reversed the defendant’s conviction in Taylor because of the
district court’s failure to instruct the jury in the presump-
tion of innocence after the government’s comments about
the defendant’s status. Id. at 490. This case is dissimilar
because Garcia received the benefit of instructions on both
reasonable doubt and the presumption of innocence.
  Garcia further argues that permitting Coleman’s testi-
mony that drug dealers do not bring innocent persons to
drug deals was tantamount to authorizing the jury to ignore
the rule that mere presence does not support a conviction.
But under the law of this circuit, by introducing Coleman’s
testimony, the government already had taken a step beyond
reliance on mere presence. See Zafiro, 945 F.2d at 888
(holding that government established “more” than mere
presence through expert testimony that “drug dealers do
not discuss or deliver large quantities of illegal drugs in the
presence of innocent bystanders”). “The mere-presence
doctrine means just what it says—presence and nothing
more.” Starks, 309 F.3d at 1026. It means that the govern-
ment is not permitted to ask a jury to convict a defendant
just because he was found in proximity to illegal activity.
Id. Coleman’s testimony, however, adds to Garcia’s mere
presence at the deal. He was not only there; he was present
when it was unlikely for an innocent person to be there.
  Zafiro suggests that such expert testimony may be
enough in itself to refute the allegation that the government
No. 04-3159                                                9

has relied on mere presence, see Zafiro, 945 F.2d at 888.
But we do not have to resolve that question because the
government did not rely exclusively on Coleman’s testimony
to carry its burden. It also pointed to several significant
pieces of circumstantial evidence: Angulo-Hernandez’s
admission during his plea colloquy that Garcia was his
source for the drugs he attempted to sell to Woods; the fact
that Jara and Angulo-Hernandez did not know each other
before the transaction (the jury could infer that those two
would not have spontaneously cooperated in a wholesale-
level drug deal without Garcia as guarantor of each other’s
trustworthiness); Jara’s consultation with Garcia before
showing Woods the cocaine; and the vehicle document
which connected Garcia with the Nissan.
  Finally, Garcia contends that United States v. Booker, 543
U.S. 220 (2005), compels resentencing. Although the district
court ruled in his favor on his Sixth Amendment argu-
ments, he points out that it still treated the guidelines as
mandatory. Garcia did not specifically contest
the mandatory application of the guidelines in the dis-
trict court, but we have held that a Sixth Amendment
challenge is “specific enough” to preserve an objection based
on the mandatory character of a sentence. United States v.
Schlifer, 403 F.3d 849, 854 (7th Cir. 2005).
  The government suggests that we direct a limited remand
under United States v. Paladino, 401 F.3d 471 (7th Cir.
2005), on the ground that Garcia did not “allege a violation
of the Sixth Amendment or interpose an Apprendi-style
objection.” We disagree. Garcia expressly cited the Sixth
Amendment, Apprendi v. New Jersey, 530 U.S. 466 (2000),
Blakely v. Washington, 542 U.S. 296 (2004), and this court’s
decision in United States v. Booker, 375 F.3d 508 (7th Cir.
2004), in his “Memorandum in Aid of Sentencing” in the
district court. He must submit to full resentencing under
Schlifer as a consequence of maintaining this appeal.
  On remand we ask the district court to consider the
sentencing factors it felt constrained to exclude before, and
10                                               No. 04-3159

these will inform its exercise of discretion in selecting a new
sentence. Garcia’s risk of receiving a longer sentence is even
greater than the risk faced by other defendants whom we
have warned might not receive the benefit from
resentencing they anticipated. See United States v. Roche,
415 F.3d 614, 620 (7th Cir. 2005); United States v. Goldberg,
406 F.3d 891, 894 (7th Cir. 2005). But the case for
resentencing is nonetheless strong because the district
court’s remedy for the Sixth Amendment problem—which
was simply to ignore sentencing factors that depended on
facts not found by a jury—is inconsistent with the remedy
chosen by the Supreme Court in Booker. After Booker,
courts must “compute the guidelines sentence just as [they]
would have done before,” finding necessary facts under a
preponderance standard, then “decide whether the guide-
lines sentence is the correct sentence to give the particular
defendant.” United States v. Dean, 414 F.3d 725, 727 (7th
Cir. 2005). The district court’s failure to consider whether
a role adjustment was appropriate and whether an addi-
tional criminal history point was warranted means that it
did not apply the guidelines properly, and this in itself is
grounds for resentencing unless the government can show
that the error was harmless. See United States v. Berheide,
421 F.3d 538, 542 (7th Cir. 2005); United States v. Graves,
418 F.3d 739, 746 (7th Cir. 2005); Schlifer, 403 F.3d at 854.
The government concedes that it cannot do so because the
record contains insufficient information to allow us to
determine whether the district court’s “choice of sentence
would have been the same” under a correct interpretation
of the guidelines. Schlifer, 403 F.3d at 855.


                    III. CONCLUSION
  We AFFIRM the conviction, but VACATE the sentence
and REMAND the case for resentencing under Schlifer.
No. 04-3159                                         11

A true Copy:
      Teste:

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




               USCA-02-C-0072—2-28-06
