233 F.3d 972 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Diego Albarran, Defendant-Appellant.
No. 00-1719
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 3, 2000Decided November 30, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 99 CR 371--James F. Holderman, Judge.[Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Easterbrook and  Williams, Circuit Judges.
Flaum, Chief Judge.


1
Diego Albarran was convicted  of conspiracy to possess with intent to  distribute cocaine and possession with intent to  distribute cocaine. Albarran now appeals his  conviction, arguing: (1) there was insufficient  evidence to sustain his conviction for conspiracy  to possess with intent to distribute cocaine; (2)  the district court erred when it denied his  request for a downward departure based upon  diminished capacity at the time of the offense  and an extraordinary physical impairment; and (3)  the district court erred in its calculation of  the amount of drugs attributable to him for  sentencing purposes. For the reasons stated  herein, we affirm.

Background

2
On the afternoon of May 13, 1999 the Drug  Enforcement Administration ("DEA") was involved  in an undercover set-up operation. While  monitoring a series of telephone calls between a  confidential informant named Sean and Pedro Maya,  the DEA learned that Sean had agreed to purchase  "three or four, or maybe more" kilograms of  cocaine for $23,000 dollars each, per kilo, from  Maya. Sean wanted to see a sample of the cocaine  and so Maya accommodated Sean's request by  arranging a meeting between himself, his friend  who would be supplying the drugs, and Sean. Early  that same evening, Maya, his friend Raul  Navarrette, Sean, and Agent Roger Ehler met at  the Round Table Restaurant on Clark Street in  Chicago to discuss the cocaine deal. At around  6:45 p.m., Navarrette, Maya, and Sean got into  Agent Ehler's car. Maya and Navarrette directed  Agent Ehler to 1555 West Hollywood Avenue, where  he parked his car across the street from the  Hollywood apartment building.


3
Finally, Diego Albarran appeared on the scene  when he walked out of the Hollywood building  carrying a black backpack and got into the back  seat of the agent's car with Navarrette and Maya.  Navarrette took the backpack from Albarran,  pulled out a rectangular package wrapped in  plastic, and cut open the package which contained  a kilogram of cocaine. During this entire  process, Albarran remained seated next to  Navarrette, who had in his possession the open  kilogram of cocaine. Discussions then ensued  between the agent and Navarrette concerning the  price and quality of the cocaine. The undercover  agent during these negotiations gave the  prearranged arrest signal and DEA agents  proceeded to arrest Maya, Navarrette, and  Albarran.


4
There is evidence that Albarran's role in the  drug deal was not limited to delivering the drugs  to Navarrette and observing the deal unfold.  Rather, his telephone records reveal that he  received ten phone calls on May 13 from Ignacio  Estrada, who also played a role in setting up the  drug deal. At approximately 3:30 p.m. in the  afternoon, when Sean and Maya decided to set up  the cocaine transaction, Maya talked to  Navarrette, who immediately spoke to Estrada.  Within a few minutes of Estrada being contacted,  he began calling Albarran. This led to Estrada  and Albarran exchanging phone calls throughout  the afternoon and evening. The telephone records  show that Albarran called Estrada at 6:13 p.m.  and 6:23 p.m., which is during the period when  the final arrangements for the drug transaction  were occurring at the Round Table Restaurant. As  the deal itself was progressing at the  restaurant, DEA surveillance agents were tracking  the activities of Agent Ehler. While doing so,  one of the agents at 6:45 p.m. first realized  that Albarran was walking down Clark Street, away  from the Round Table Restaurant. He noticed that  Albarran was carrying a cell phone and was within  the vicinity of where the drug negotiations were  taking place.


5
Albarran's arrest resulted in the search of  Apartment 114 at 1555 West Hollywood Avenue. The  agents learned that one of Albarran's keys fit  the lock to that apartment, and shortly  thereafter, a search of Apartment 114 was  conducted. The apartment itself had an odor of  marijuana. What was discovered in the apartment  was more than marijuana. Agents uncovered in the  apartment two kilograms of methamphetamine in  various bags inside an open suitcase, five  kilograms of cocaine scattered throughout the  kitchen and alcove area, and a small amount of  marijuana as well. The wholesale value of the  drugs found in the apartment, according to an  expert, was in excess of $150,000. During the  search, the agents seized cutting and purifying  tools used in the processing of drugs, sifters,  strainers, and spoons covered with drug residue,  two digital scales in plain view on the kitchen  counter, and an assortment of packaging materials  such as duct tape and plastic bags. In the middle  of the apartment, agents also discovered a wooden  press in a microwave oven sitting on a bed. The  wooden press is used to form kilogram quantities  of cocaine into bricks. Although the apartment  had very few indications that it was being  utilized as a living space, the agents did find  a number of personal papers of Albarran's in the  apartment, such as his passport, various personal  records, a matchbook from the Round Table  Restaurant, receipts dated in early May, a letter  dated May 7, and a letter postmarked May 6 and  addressed to Albarran at a different address.  Albarran's fingerprints were detected on a small  bag of cocaine in the apartment as well.


6
Albarran was charged with one count of  conspiracy to possess with intent to distribute  cocaine, in violation of 21 U.S.C. sec. 846, and  one count of possession with intent to distribute  cocaine, in violation of 21 U.S.C. sec.  841(a)(1). Albarran's first trial ended in a  mistrial because of concerns relating to his  health. A retrial followed and the jury found  Albarran guilty as charged on both counts and the  district court sentenced him to 210 months of  imprisonment.

Discussion
A.  Sufficiency of the Evidence

7
Albarran contends that the government failed to  demonstrate that he knowingly agreed to  distribute drugs, and furthermore, even if he was  involved in some sort of conspiracy, the  government never adequately proved that he knew  of the illegal objective of the conspiracy.  Sufficiency of evidence challenges are difficult  to mount because the standard of review favors  the government. We review a jury's determination  for sufficiency of evidence in the light most  favorable to the government and uphold a jury's  decision if "any rational trier of fact could  have found the essential elements of the crime  beyond a reasonable doubt." Jackson v. Virginia,  443 U.S. 307, 319 (1979). Albarran's sufficiency  of evidence challenge is by no means doomed from  the outset, but there is no question that he  faces "'a heavy burden.'" United States v.  Granados, 142 F.3d 1016, 1019 (7th Cir. 1998)  (quoting United States v. Campbell, 985 F.2d 341,  344 (7th Cir. 1993)). We will therefore overturn  a jury's verdict if the record contains no  evidence, no matter how the evidence is weighed,  from which the jury could have found guilt beyond  a reasonable doubt. Id.


8
The government has the task of proving that  Albarran was part of a conspiracy. To do so, the  government must establish that a conspiracy  existed and that Albarran knowingly agreed to  join it. United States v. Pagan, 196 F.3d 884,  889 (7th Cir. 1999). Determining that a  conspiracy exists is only the first step in the  process, as it is incumbent upon the government  to show that there is substantial evidence that  the particular defendant in question "knew of the  illegal objective of the conspiracy and agreed to  participate in its achievement." United States v.  Burrell, 963 F.2d 976, 987 (7th Cir. 1992). In  building its case, the government need not rely  exclusively upon direct evidence. The government  can, if it so wishes, construct a conspiracy case  solely upon circumstantial evidence. Pagan, 196  F.3d at 889.


9
Albarran contends that the government's case  against him is based upon such weak  circumstantial evidence that no jury could have  reasonably concluded that he was part of a drug  conspiracy. He contests the government's reliance  upon phone calls placed between Estrada and  himself because none of these phone calls were  recorded. In addition, he argues that there were  no phone calls between himself and Maya or  Navarrette. Maya testified that prior to being  arrested, he did not know Estrada or Albarran.  There is no evidence, according to Albarran, that  he personally had conversations with or knew of  discussions among Estrada, Navarrette, or Maya.  With respect to the period before the actual drug  transaction, Albarran claims that although agents  saw him talking on the phone and walking within  the vicinity of the Round Table Restaurant, these  facts fail to link him to the conspiracy. All the  evidence that the government proffered to show  that Albarran was involved in the planning stages  of the drug transaction, like the phone calls he  placed and received and his presence near the  Round Table Restaurant, do not conclusively  establish his direct participation in the drug  conspiracy according to Albarran.


10
Albarran views his involvement in this entire  situation as being the result of unlucky  circumstances. Because Albarran had lost his job,  he had left his apartment and was living on the  streets. A man named "El Panzon" offered to allow  him to live in an apartment at 1555 West  Hollywood Avenue until the security deposit ran  out. About four days before his arrest, "El  Panzon" gave Albarran the keys to the apartment.  Albarran claims that two to three days prior to  his arrest he cleaned the apartment and he never  saw in the apartment drugs, bags filled with  white or brown powder, scales, a block press, or  tape at that time.


11
Albarran argues that he was present at the drug  transaction on May 13, 1999 because he merely was  trying to do "El Panzon" a favor. He simply  picked up the bag and delivered it as he was told  to Agent Ehler's truck because "El Panzon" had  asked him to do so. Navarrette took the bag from  Albarran and he was helped inside the truck  because he was out of breath due to his heart  condition. He then proceeded to rest inside the  truck. He contends that he had no idea that the  bag contained cocaine and he was not inside the  Hollywood apartment prior to delivering the bag  that day because he had been at the hospital and  the taqueria and had slept elsewhere the night  before. In addition, several people had access to  the apartment and none of the alleged drug  paraphernalia was in plain view except the  wrappings inside the suitcase. Albarran claims  that he had no role in negotiating or planning  the drug transaction nor did he even have any  idea that he was delivering drugs. He attempts to  portray himself as a person in a desperate  situation, who merely delivered the bag as a  favor in an effort to repay "El Panzon" for his  generosity. Albarran is therefore contending that  he had neither the knowledge nor the desire to  take part in the drug conspiracy and only  happenstance caused him to be involved at all.


12
Unfortunately for Albarran, the jury did not  believe his version of the facts. We accord a  jury's determination in this type of case  deference and we cannot take it upon ourselves,  considering the circumstantial evidence presented  by the government, to dislodge the conclusions of  the jury. The government need not provide  evidence of overt acts taken on the part of  Albarran to advance the conspiracy, rather the  government may show a "'participatory link'"  between the conspiracy and the defendant. United  States v. Hunte, 196 F.3d 687, 691 (7th Cir.  1999) (quoting United States v. Navarez, 954 F.2d  1375, 1380-81 (7th Cir. 1992)). According to the  government, there was ample evidence connecting  Albarran to the conspiracy, including: (1)  Albarran's participation in a series of telephone  calls leading up to the drug transaction; (2) his  presence near the Round Table Restaurant when the  deal was being negotiated; (3) his full access to  the apartment where the drugs were stored; and  (4) his decision to deliver the cocaine to the  car and remain in the car while the deal was  being finalized.


13
Albarran denies knowing that the purpose of the  conspiracy was drug related, but the government  contends that this is an empty argument  considering Apartment 114 was being used as a  stash house. No one actually lived in the  apartment; it was used to store, process, and  prepare drugs for distribution. Albarran admitted  while testifying that he had seen in the  apartment the microwave on the bed, the cutting  agents inside the kitchen cabinets, and the  marijuana inside a kitchen drawer. Having seen  these items alone, the government suggests,  should have put Albarran on notice that the  apartment was being utilized for drug processing.  In addition, Albarran had a key to the apartment,  which had in excess of $150,000 worth of drugs  stored in it and he was given a bag that  contained a kilogram of cocaine worth $23,000.  When he got into the car with Maya, Navarrette,  Sean, and the undercover agent, Albarran remained  there while the cocaine was opened, displayed,  and discussed. This tends to show that Albarran  was viewed by the other men with some degree of  trust during "critical junctures" of the drug  transaction, which supports the view that he was  part of the conspiracy. United States v.  Theodosopoulos, 48 F.3d 1438, 1451 (7th Cir.  1995). Taken as a whole, the government argues  that the circumstantial evidence provided clearly  implicates Albarran as taking part in the drug  conspiracy.


14
Albarran's sufficiency of evidence argument is  a particularly weak one in light of the district  court's commentary on the matter. The district  court judge added two points to Albarran's  sentence level for obstruction of justice under  sec. 3C1.1 of the Sentencing Guidelines. U.S.S.G.  sec. 3C1.1 (Nov. 1998). Specifically, the  district court said, "I believe that Mr. Albarran  did intentionally provide false testimony with  regard to his knowledge and understanding of the  contents of the backpack and the contents of the  apartment. It was clear to me from observing his  demeanor and listening to the other testimony in  connection with the case that he was attempting  to exonerate himself from a crime that he was  engaged in and the jury ultimately found he was  engaged in." The district court judge's  determination further buttresses the jury's  conclusion that Albarran was involved in a drug  conspiracy and we will not overturn the jury's  judgment, which was confirmed by the district  court. On this basis, we affirm the district  court's determination that Albarran was involved  in a drug conspiracy.


15
B.  Downward Departure Requests: Diminished Capacity and Extraordinary  Physical Impairment


16
Albarran further objects to the district court's  decision to deny him a downward departure based  upon the ground that at the time he committed the  offense he suffered from a diminished capacity  and the court's conclusion that at the time of  sentencing he was not suffering from an extraordinary physical impairment. The Sentencing  Guidelines provide for a downward departure in  the case of diminished capacity under sec. 5K2.13  if it is determined that the defendant "committed  the offense while suffering from a significantly  reduced mental capacity." U.S.S.G. sec. 5K2.13  (Nov. 1998). Similarly, the Sentencing Guidelines  have a provision that does allow for a departure  when it is determined that "an extraordinary  physical impairment may be a reason to impose a  sentence below the applicable guideline range;  e.g., in the case of a seriously infirm  defendant, home detention may be as efficient as,  and less costly than, imprisonment." U.S.S.G.  sec. 5H1.4 (Nov. 1998). Albarran can successfully  challenge the district court's departure  decisions if he shows that the district court  "misunderstood or misapplied the law, because  when a district court recognizes its authority to  depart under the guidelines but in an exercise of  its discretion chooses not to do so, an appellate  court lacks jurisdiction to review that  decision." United States v. Thomas, 181 F.3d 870,  873 (7th Cir. 1999).


17
Albarran contends that the district court did  in fact misunderstand the law with regard to his  departure requests. During the sentencing  hearing, the district court made mention of  Albarran's "heart condition at the time of the  offense" and talked about how Albarran was not  "under an extraordinary physical impairment at  the time of the offense." These two references  are troublesome according to Albarran because  U.S.S.G. sec. 5H1.4 does not mention that the  defendant must have suffered an extraordinary  physical impairment at the time of the offense.  The district court addressed the extraordinary  physical impairment request and the diminished  capacity request at the same time, and Albarran  believes that the district court conflated the  two issues.


18
Albarran argues that because the district court  applied an improper legal standard to his  extraordinary physical impairment motion, the  court as a result ignored the obvious health  problems that he displayed. For instance, during  his first trial he collapsed in the courtroom and  eventually a mistrial was declared because he was  unable to attend court due to his ill health.  Thereafter, he was sent to Rochester, Minnesota  to be evaluated and the district court had a  hearing on the status of Albarran's health. Dr.  Javid testified that Albarran suffered from  cardiomyopathy and an enlarged heart. During his  trial, the court heard testimony concerning  Albarran's hospitalizations and his medical  condition. Albarran during sentencing had  difficulty recalling the presentence  investigation report and the basic legal  evolution of his case. All of this evidence  regarding his physical condition, Albarran  believes, should have been examined by the  district court in relation to his extraordinary  physical impairment departure request.


19
Albarran's position is not persuasive. He  provided the district court with a memorandum  discussing his diminished capacity at the time of  his offense and in a separate part of the  submission he addressed his extraordinary  physical impairment claim. The government  responded to Albarran's memorandum by pointing  out that the district court had previously  determined that a jury instruction regarding  Albarran's diminished capacity at the time of  offense would be inappropriate because there was  insufficient evidence presented to warrant such  an instruction. In relation to the physical  impairment argument, the government noted that  case law requires that the defendant prove that  he has certain medical needs that could not be  met if he was confined and Albarran never  specifically provided evidence that the Bureau of  Prisons could not adequately treat his physical  impairments.


20
At the sentencing hearing, the court reached  the two departure issues and allowed the  defendant's counsel the opportunity to address  the diminished capacity and the extraordinary  physical impairment departure motions. Albarran's counsel took this opportunity to discuss  Albarran's diminished capacity and the government  responded in kind. At no point during this part  of the hearing, did Albarran's counsel present  evidence regarding why his physical condition  would preclude him from being incarcerated and  cared for properly by the Bureau of Prisons. The  district court when considering a departure based  upon a physical impairment "must ascertain,  through competent medical testimony, that the  defendant needs constant medical care, or that  the care he does need will not be available to  him should he be incarcerated." United States v.  Sherman, 53 F.3d 782, 787 (7th Cir. 1995). There  was no independent evidence presented concerning  Albarran's medical condition at the sentencing  hearing, therefore it would have been  inappropriate for the district court to grant a  departure on this basis.


21
Albarran's contention that the district court  did not understand its legal obligations with  regard to his departure requests is a failing  argument. It may appear as though the district  court conflated to some extent Albarran's  diminished capacity and extraordinary physical  impairment departure motions, but even if we were  to assume that this were true, this type of  confusion on the district court's part does not  necessarily indicate that the court did not  understand its authority to depart. When the  district court judge began to address the issue,  he remarked, "I don't believe that's sufficient  to support a downward departure for diminished  capacity or extraordinary physical impairment."  He clearly had acknowledged the distinct nature  of the two departure requests and perhaps began  to discuss the two together because they were  both based upon Albarran's heart condition. Most  of his commentary centers around the significance  of Albarran's heart condition as seen by the  district court's admonishment that "[p]eople have  heart conditions across this country and continue  to engage in normal conduct and have at least  sufficient ability to conduct their affairs in an  appropriate manner that comports with the law. I  believe that the diminished  capacity/extraordinary physical impairment  departure downward would be inappropriate." We  simply have no indication that the district court  did not understand its discretion and we are  inclined to presume that the opposite is true: "'[A] claim that a seasoned judge . . . didn't  understand his discretion will rarely, if ever,  be successful when built merely on inference.  Article III judges are presumed to know the law  . . . .'" United States v. Wilson, 134 F.3d 855,  869 (7th Cir. 1998) (quoting United States v.  Kezerle, 99 F.3d 867, 870 (7th Cir. 1996))  (alterations in original). This is not one of  those rare situations where we would be compelled  to determine that the district court did not  understand its discretion. Consequently, we lack  jurisdiction to review the court's departure  decisions and we reject Albarran's arguments  concerning this aspect of his sentence. We  therefore affirm the district court's decision  not to depart downward with regard to the  diminished capacity and extraordinary physical  impairment motions.

C.  Quantity of Drugs Challenge

22
We now reach Albarran's last challenge. He  contends that the district court improperly  included in determining his offense level under  the Sentencing Guidelines the drugs discovered in  Apartment 114 on 1555 West Hollywood Avenue. The  district court's decision regarding the quantity  of drugs that Albarran is responsible for is a  finding of fact that we review for clear error.  Pagan, 196 F.3d at 891. One can prove clear error  if the "sentencing calculation rests on an  inadequate evidentiary basis." Id. The record  before the court must be sufficient in nature at  sentencing to support a finding by a  preponderance of the evidence. Id. Therefore, "if  the district court's conclusion rests on reliable  evidence in the record, we will not second-guess  the way that the court weighed the evidence, nor  will we upset its credibility determinations."  Id. We will overturn a factual determination if  we are left "with the definite and firm  conviction that a mistake has been committed."  United States v. Garcia, 69 F.3d 810, 819 (7th  Cir. 1995) (citations and internal quotation  marks omitted).


23
Albarran is contesting the district court's  decision to attribute the drugs found in  Apartment 114 to him as part and parcel of his  involvement with the greater drug conspiracy.  Although this argument rests upon the notion that  such drugs were not a reasonably foreseeable part  of the alleged conspiracy that Albarran agreed to  partake in, we are really dealing with yet  another sufficiency of evidence question that  rehashes several of the facts and arguments  raised before. As a co-conspirator, a defendant  can be held accountable for transactions in which  he or she did not personally participate if such  a deal was reasonably foreseeable to him or her.  United States v. Pigee, 197 F.3d 879, 889-90 (7th  Cir. 1999). The Sentencing Guidelines state that  one's offense level can be based on "all  reasonably foreseeable acts and omissions of  others in furtherance of the jointly undertaken  criminal activity." U.S.S.G. sec. 1B1.3(a)(1)(B)  (Nov. 1998). Comment 2 to U.S.S.G. sec. 1B1.3  notes that a defendant "in the case of a jointly  undertaken criminal activity, [is accountable  for] all reasonably foreseeable quantities of  contraband that were within the scope of the  criminal activity that he jointly undertook."  Albarran claims that even if he was involved in  delivering one kilogram of cocaine, the drugs  found in the apartment were not within the scope  of the agreement that he allegedly entered into  with the other defendants in this case.


24
Albarran once again challenges the  circumstantial evidence presented by the  government that connects him to the drugs found  in the apartment. He argues that several people  had access to Apartment 114, and other than the  suitcase that had within it a brown substance,  none of the other drugs discovered in the  apartment were in plain view. Also, there is no  evidence as to when the suitcase was brought into  the apartment and Albarran reminds us that his  fingerprints were not found on the suitcase. More  importantly, according to Albarran, there is no  evidence that he was inside the apartment on May  12, 1999 until he was arrested. On the morning of  his arrest, Albarran went to the hospital and  arrived back at his apartment right before his  arrest. Furthermore, Albarran points out that  Agent Stanley M. Grobe testified that a stash  house is utilized for a limited period of time.  Grobe said that the processing of a kilo can be  done in a matter of hours and generally the  people who touch the wooden press are mainly  responsible for the processing of the cocaine. In  this case, Albarran's fingerprints were not on  the microwave, block press, or cutting agents and  Albarran believes this indicates that he did not  participate in processing the drugs discovered in  the apartment. According to Albarran, although  the drugs were recovered from the apartment,  there is no evidence that he negotiated for this  particular amount of drugs, that he expected to  profit from them, and he was not considered to be  a leader or organizer in the drug processing.  From Albarran's perspective, there is a lack of  evidence connecting him with the scheme of  selling the drugs found in Apartment 114.


25
It is difficult to reconcile Albarran's theory  of what transpired at the apartment with the  district court's conclusions regarding this  matter. First, it does not aid Albarran's case  that the district court found that he had  provided false testimony concerning his knowledge  of what was located within Apartment 114. Second,  the district court judge did entertain commentary  about the drugs found within the apartment and  how this would affect Albarran's offense level.  After listening to arguments from both sides, the  district court did concede that the evidence  connecting Albarran to the drugs in the apartment  was circumstantial, but the evidence is very strong from the  standpoint of it being circumstantial evidence.  I won't reiterate it all, but the fact that Mr.  Albarran had a key, the fact that Mr. Albarran  had clothing and other items in the apartment,  the fact that Mr. Albarran had admitted on the  witness stand that he did see [a] microwave on  the bed, [which] could be construed as drug  paraphernalia, indicates to me that this was not  a situation where someone unbeknownst to Mr.  Albarran brought in the drugs that very day in  Mr. Albarran's absence and then involved Mr.  Albarran in the criminal activity, keeping Mr.  Albarran in the dark about the circumstances of  that drug activity or the extent of it.


26
The circumstantial evidence, as illustrated from  the district court's comments, sufficiently  proved that Albarran knew of the drugs found in  the apartment and that he was not an innocent  person who was wrongfully caught up in the  situation. The district court did not commit  clear error when it included the drugs discovered  in the apartment in its calculation of Albarran's  offense level and therefore we affirm its  determination regarding the drug quantity in  Albarran's case.

Conclusion

27
For the reasons stated herein, we AFFIRM the  decision of the district court.

