In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2900

United States of America,

Plaintiff-Appellee,

v.

Jose Martin Martinez,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-40062-001-JLF--James L. Foreman, Judge.

Argued April 3, 2001--Decided May 13, 2002



  Before POSNER, KANNE, and ROVNER, Circuit
Judges.

  ROVNER, Circuit Judge. Jose Martin
Martinez pleaded guilty to one count of
conspiring to possess marijuana with
intent to distribute, 21 U.S.C. sec.sec.
846, 841(a)(1), and one count of
possessing marijuana with intent to
distribute, id. sec. 841(a)(1). Although
Martinez admitted to selling only 88.5
kilograms (203 pounds), the district
court attributed to him a much larger
amount and accordingly sentenced him to
292 months’ incarceration on the
conspiracy count, and to a concurrent
term of 240 months’ incarceration on the
distribution count. Martinez now argues
that his case should be remanded for
resentencing. We disagree.

  In June 1999 confidential informant
Mauricio Lopez introduced Martinez to
David Hathaway, an undercover special
agent of the Drug Enforcement
Administration. Lopez told Martinez that
Hathaway was his brother-in-law and that
Hathaway wanted to purchase marijuana. On
June 23 Martinez, accompanied by co-
conspirator Francisco Fernandez, met with
Hathaway in West Frankfort, Illinois, and
negotiated the sale of 88.5 kilograms. At
Martinez’s direction, Fernandez placed a
cell-phone call to arrange for the
delivery. A short time later Ronald
Czajka and his brother Philip, both of
whom were unknown to law enforcement
agents at that time, arrived in a semi-
truck and gave Hathaway three packages
containing the marijuana.

  After the delivery all of the
participants left the site. Martinez
drove north to Chicago, talking by phone
to Hathaway while en route. Martinez told
Hathaway that he could continue to
provide all the marijuana he wanted, 200
pounds at a time. Martinez also stated
that he used semi-trucks to transport
marijuana because they effectively
averted police suspicion. In addition,
Martinez informed Hathaway that he was
traveling to Mexico to acquire another
1,500 to 2,000 pounds of marijuana, and
that he wanted to be paid for the recent
delivery before embarking on the trip.

  In the meantime Ronald Czajka drove west
under surveillance. In order to identify
him, police stopped his truck on a ruse
as he was exiting West Frankfort. Once
back on the road Czajka phoned Fernandez
and told him that he had been stopped as
part of a routine road check. Soon
thereafter Martinez received word of the
stop and told Hathaway. Czajka proceeded
to Dallas and picked up an empty trailer,
then drove to El Paso, where he
loadedanother 10,000 pounds of marijuana.
Czajka then picked up Fernandez in
Oklahoma City, and the two delivered the
stash to locations in New York and
Pennsylvania.

  In July 1999 a federal grand jury
returned a two-count indictment charging
Martinez (along with Fernandez and the
Czajka brothers) with conspiring to sell
"divers" quantities of marijuana, and
with distributing approximately 90
kilograms of marijuana. In December 1999
Martinez entered blind guilty pleas to
both counts.
  At the sentencing hearing Ronald Czajka,
now a government witness, admitted to
delivering the 203 pounds of marijuana to
Hathaway. Czajka also testified that he
contacted Fernandez after his truck had
been stopped, picked up 10,000 pounds of
marijuana from a man named Daniel Vargas
in El Paso, and delivered the marijuana
to locations in New York and
Pennsylvania. The government also called
Lopez, who testified that Martinez told
him of running 2,000 to 3,000 pounds of
marijuana every two to three months since
March 1997. Hathaway testified as well,
but Fernandez did not--he was a fugitive
at the time of the hearing. The court,
however, did allow Hathaway to testify
that Fernandez had stated in an August
1999 proffer that Martinez had moved
3,000 to 6,000 pounds of marijuana every
two weeks from June 1998 through mid-
1999. Fernandez, represented by counsel,
also stated in the proffer that he was a
commercial truck driver (Hathaway later
verified that he held a commercial truck
license) who had personally transported
marijuana for Martinez on at least two
occasions. Fernandez also said that
Martinez had used a van that featured a
secret compartment to hide money and that
he had frequently observed amounts of
cash totaling approximately $100,000 in
the compartment. Police had seized the
van previously but discovered the
compartment only after Fernandez provided
the tip. According to Fernandez, Martinez
also had asked him to move $2,000,000 to
Martinez’s ranch in Mexico in exchange
for a 5% commission. Finally, Fernandez
said that the 203 pounds of marijuana
sold to Hathaway had been sent by Vargas
from Texas. The court continued the
sentencing proceedings following
Hathaway’s testimony.

  Before Martinez was sentenced by the
district court, Fernandez was apprehended
and placed in police custody within the
Southern District of Illinois. Neither
Martinez nor the government, however,
called Fernandez to testify.

  The district court concluded that
Martinez was responsible not only for the
203 pounds (88.5 kilograms) he admittedly
sold to Hathaway, but also for the 10,000
pounds that Czajka moved from Texas; the
12,000 pounds identified by Lopez (2,000
pounds every 2 months); and an additional
75,000 pounds (3,000 pounds every two
weeks for one year) elicited in
Fernandez’s proffer. The court therefore
attributed 97,203 pounds of marijuana to
Martinez, giving him a total offense
level of 40/1 (the 88.5 kilograms would
have yielded a total offense level of
26). The court assigned Martinez a
criminal history category of I, resulting
in a guideline imprisonment range of 292
to 365 months for the conspiracy count,
and 240 months (the statutory maximum)
for the distribution count. The court
sentenced him to concurrent terms of 292
and 240 months’ incarceration.

  Martinez first argues that the sentences
imposed by the district court are
unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Apprendi
holds that factual findings (other than
prior convictions) that raise a
defendant’s sentence above the statutory
maximum must be submitted to a jury and
proven beyond a reasonable doubt. Id. at
476. Martinez admitted to selling
approximately 90 kilograms of marijuana,
yielding a statutory maximum of 20 years
on both counts, see 21 U.S.C. sec.
841(b)(1)(C). The court, however,
sentenced him to 292 months for the
conspiracy count, 52 months beyond the
statutory maximum.

  Because Martinez did not raise this
Apprendi issue in the district court, we
review his challenge for plain error.
See, e.g., United States v. Alanis, 265
F.3d 576, 589 (7th Cir.), petition for
cert. filed, 70 U.S.L.W. 3429 (U.S. Dec.
5, 2001) (No. 01-904). Under this
standard, Martinez must establish (1)
there was error; (2) the error was plain;
(3) the error affected a substantial
right; and (4) the error seriously
affected the fairness, integrity, or
public reputation of the judicial
proceedings. See id. Here, Martinez
cannot prevail under the fourth prong.
The district court’s error did not
seriously affect the fairness of the
proceeding because the court could have
imposed the same punishment simply by
imposing consecutive sentences. See
U.S.S.G. sec. 5G1.2(d) (instructing
courts to impose consecutive sentences to
achieve the total punishment appropriate
to the convictions). As a result, the
court’s error did not result in a
miscarriage of justice that warrants
reversal. See United States v. Knox, No.
01-3099, 2002 WL 745990, at *1 (7th Cir.
Apr. 29, 2002); United States v. Brough,
243 F.3d 1078, 1080-81 (7th Cir.), cert.
denied, 122 S. Ct. 203 (2001); United
States v. Parolin, 239 F.3d 922, 929-30
(7th Cir.), cert. denied, 533 U.S. 923
(2001).

  Martinez’s next challenge, factual
rather than constitutional, is also
unpersuasive. He contends that the
district court assigned too much
marijuana as relevant conduct under the
sentencing guidelines, and that as a
result his prison sentences are too
severe. In determining a drug offender’s
base offense level, a district court
considers quantities of drugs that are
not specified in the count of conviction
but were part of the same course of
conduct or common scheme or plan as the
offense of conviction. See U.S.S.G. sec.
1B1.3(a)(2); United States v. Huerta, 239
F.3d 865, 875 (7th Cir. 2001). We review
the court’s drug-quantity-calculation
deferentially, only for clear error.
Huerta, 239 F.3d at 875. In calculating
the quantity of drugs attributable to a
defendant, sentencing courts may consider
a wide range of information, including
hearsay, so long as it bears "sufficient
indicia of reliability to support its
probable accuracy." United States v.
Taylor, 72 F.3d 533, 543 (7th Cir. 1995).

  Martinez challenges three separate
quantities of drugs earmarked by the
district court as relevant conduct.
First, he questions the 10,000 pounds
added as a result of Ronald Czajka’s
testimony. The court, however, did not
clearly err by including the sale of the
10,000 pounds because it was part of the
same common scheme and plan as the
charged offenses. The later transactions
occurred immediately after the Hathaway
deal, involved the same dealers, and used
the same method (delivery by semi-truck).
Moreover, Martinez was kept abreast of
Czajka’s activity after the West
Frankfort deal was complete. Such
evidence sufficiently ties Martinez to
the 10,000 pounds of marijuana, and the
court did not clearly err by including it
as relevant conduct.

  Martinez also challenges the 12,000
pounds identified by Lopez. At the
sentencing hearing Lopez, who met
Martinez in January 1997, testified that
Martinez had told him that he regularly
moved large quantities of marijuana--two
to three thousand pounds every two to
three months since March 1997. Lopez also
told the court that he arranged the
Hathaway transaction and that Martinez
had told him after the deal that he was
headed back to Mexico to secure
additional marijuana. Contrary to
Martinez’s argument, the court did not
clearly err by attributing to him the
marijuana identified by Lopez. The court
stated explicitly that it found Lopez to
be credible despite vigorous cross-exami
nation, and Martinez has not provided us
with a compelling reason to disturb the
court’s credibility determination. See
United States v. Johnson, 227 F.3d 807,
813 (7th Cir.) (reviewing court gives
special deference to findings based on
credibility determinations, which can
almost never be clear error), cert.
denied, 532 U.S. 1024 (2001); United
States v. Berthiaume, 233 F.3d 1000, 1002
(7th Cir. 2000) (same).

  The 75,000 pounds gleaned from
Fernandez’s proffer is more troubling
because the evidence the district court
relied on was hearsay. But though
Martinez is correct that the 75,000
pounds identified in Fernandez’s proffer
accounted for a large portion (77%) of
the total drug quantity, that amount
added very little to his offense level.
As previously discussed, the district
court properly attributed 22,203 pounds
of marijuana to Martinez, which included
amounts from the deal with Hathaway, as
well as the activity described by Ronald
Czajka and Lopez. That amounts to 10,071
kilograms, which would place Martinez’s
base offense level at 36, see U.S.S.G.
sec. 2D1.1, and his total offense level
at 38, yielding a guideline imprisonment
range of 235 to 293 months (he was
sentenced to 292 months’ incarceration).
The addition of 75,000 pounds therefore
resulted in only a two-level increase in
his offense level, yielding a guideline
imprisonment range of 292 to 365 months.
Consequently, Martinez could have
received the same sentence without taking
into account the 75,000 pounds, and his
assertion that the court relied on
hearsay to greatly increase the severity
of his punishment is simply untrue. The
tail did not wag the dog.

  Because Martinez dramatically overstates
the impact that the 75,000 pounds had on
his possible sentences, his challenge to
the court’s reliance on hearsay loses
steam. And the mere fact that the court
relied on hearsay to calculate a higher
offense level is not clear error. As we
have repeatedly explained, hearsay is
permitted at sentencing if it is
reliable; reliability may be established
by corroborating evidence. See, e.g.,
United States v. Thomas, 280 F.3d 1149,
1154 (7th Cir. 2002). Police were able to
independently verify several offerings
made by Fernandez--agents located the
secret compartment in the van, seized
over $31,000 in cash belonging to
Martinez in Texas, and discovered that
Fernandez had accurately provided Daniel
Vargas’s phone number. Moreover,
Fernandez’s description of Martinez’s
operation (using semi-trucks to transport
marijuana from Texas) is consistent with
that provided by Ronald Czajka, Lopez,
and Hathaway. In light of the live
testimony provided by Lopez and Czajka,
which established that Martinez ran
significant amounts of marijuana, we
believe that Fernandez’s proffer was
sufficiently corroborated and thus
reliable.
  Finally, Martinez contests the
voluntariness of his guilty pleas,
arguing that the district court did not
comply with Federal Rule of Criminal
Procedure 11. Because Martinez did not
move to withdraw his guilty pleas, we
review the plea colloquy only for plain
error, see United States v. Vonn, 122 S.
Ct. 1043 (2002), employing a "totality of
the circumstances" analysis to determine
whether any Rule 11 violations would have
likely affected his willingness to plead
guilty, see United States v. Fernandez,
205 F.3d 1020, 1024 (7th Cir. 2000).
Here, there was no plain error. Although
the district court did not inform
Martinez regarding the statutory maximum
for each offense, see Fed. R. Crim. P.
11(c)(1), the prosecutor did, putting
Martinez on notice of the potential
consequences of his pleas. See United
States v. Godwin, 202 F.3d 969, 972 (7th
Cir. 2000). Moreover, though the court
did not explain the elements of the two
drug offenses, it adequately informed
Martinez of the nature of the charges,
see Fed. R. Crim. P. 11(c)(1), and
Martinez, represented by two lawyers,
agreed that the government would be able
to prove that he committed the charged
offenses. Martinez’s representations
during the plea colloquy that he
understood the charges and the
consequences of his guilty pleas are
presumed truthful. See United States v.
Standiford, 148 F.3d 864, 868-69 (7th
Cir. 1998).

AFFIRMED.

FOOTNOTE
/1 Martinez’s total offense level included a two-
level upward adjustment for obstructing justice,
see U.S.S.G. sec. 3C1.1, after Martinez threat-
ened to have Ronald Czajka killed in prison if he
testified at the sentencing hearing. Martinez
does not challenge that aspect of his sentences.
