In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1967

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TOMMY M. MARTINEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-CR-40088--G. Patrick Murphy, Chief Judge.

ARGUED April 19, 2001--DECIDED July 12, 2001


  Before FLAUM, Chief Judge, and HARLINGTON
WOOD, JR., and ROVNER, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. On
August 13, 1998, a federal grand jury
returned an eight-count indictment
charging the defendant, Tommy M.
Martinez, and seven co-defendants with
conspiracy to distribute crack cocaine
("Count I") and distribution of crack
cocaine ("Count II"), in violation of 21
U.S.C. sec.sec. 841(a)(1) and 846. All
seven co-defendants pled guilty to the
charges and agreed to cooperate with the
government, but Martinez elected to go to
trial before a jury. On January 13, 2000,
a jury convicted Martinez on both counts.
He was later sentenced to a term of life
imprisonment on Count I and 240 months
imprisonment on Count II. Martinez
appeals the sentence. He contends that in
light of the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466
(2000), his conviction should be reversed
or, alternatively, his case should be
remanded for re-sentencing. We have
jurisdiction under 18 U.S.C. sec. 3741
and 28 U.S.C. sec. 1291, and we affirm
the district court’s sentence.

I.   BACKGROUND

  Beginning in May 1996, a joint
investigation was undertaken by the FBI
and other law enforcement agencies
participating in the Carbondale-
Murphysboro (Ill.) Violent Crime
Initiative. The investigation focused on
the distribution of crack cocaine
("crack") in the Murphysboro, Illinois
area. As a result of the investigation,
the matter was taken before a grand jury
and an indictment was returned for
Martinez and his associates. The
indictment contained charges for
conspiracy to distribute crack and
distribution of crack. However, it did
not allege the quantities of crack
involved.

  The underlying facts of this case detail
a crack distribution conspiracy that
lasted from approximately 1995 to 1998.
Martinez and four of his co-defendants,
Justin Green, Willie Johnson, Adrian
Harris, and Sheridan Johnson, lived in
Sparta, Illinois. They were principal
distributors of crack in Murphysboro and
Sparta. Occasionally, Martinez and his
associates traveled from Sparta to
Murphysboro in order to sell the crack.
Generally, they traveled to Murphysboro
during the first week of the month when
public aid checks were received.

  Although Martinez was occasionally known
to obtain the crack from other sources,
co-defendant Tony Gladney was his main
source. Each month Gladney traveled to
East St. Louis and purchased multiple
ounces of powder cocaine. He then cooked
the powder into crack and sold it to
various individuals. At trial, Gladney
testified that Martinez was a good
customer. According to Gladney, he sold
crack to Martinez at least once a month
from July 1995 to July 1998. He stated
that Martinez had bought multiple ounces
of crack at a price of $1000 per ounce.

  At Martinez’s trial, Willie Johnson
testified that he was involved in crack
distribution with Martinez. He stated
that Martinez was the leader of the group
while he was second in command. Johnson
also testified that even though Martinez
would usually buy the drugs from Gladney,
he (Johnson) would sometimes make the
purchase for Martinez. After obtaining
the crack, Martinez and Johnson would
often front "eight balls"/1 and quarter
ounces to co-conspirators Harris, Green,
and Sheridan Johnson. On a less regular
basis, Martinez would front crack to
sellers outside his immediate circle.
After selling the crack that Martinez had
fronted, both his co-conspirators and
other sellers would pay Martinez a
specified amount of money determined by
the quantity of crack given to them.

  On May 7, 1998, Chris Swope, a
confidential informant working with the
FBI, was sent out to make a controlled
buy from Martinez. The FBI had fitted
Swope with a body recorder and given him
$250 to purchase crack from Martinez.
Swope went to an apartment complex and
met with Martinez, Willie Johnson, and
Green. Swope asked Green to sell him an
eight ball, but Green said he had to talk
to Martinez first. Green and Martinez
went into an apartment and when they
emerged Martinez handed a bag to Green,
who in turn handed it to Swope. Swope
paid $200 to Green, who subsequently
handed the money to Martinez. This
exchange led to the Count II distribution
charge against Martinez. An audio tape
recording of this transaction was
submitted as evidence at trial. On August
13, 1998, Martinez surrendered to police
at the Sparta Police Department after
word was left with his girlfriend and
mother that there was a warrant for his
arrest.

  Martinez’s trial began on January 11,
2000. At trial, numerous witnesses
testified to having seen Martinez in
possession of varying amounts of crack.
Gladney testified that he occasionally
sold Martinez several ounces/2 of crack
but had supplied Martinez with at least
one ounce of crack every month for a two-
and-one-half-year period. Maurice Johnson
testified that on one occasion he saw
Martinez purchase four to five ounces of
crack from Gladney. He also testified
that Martinez fronted him from one-eighth
to one-half ounce of crack every week for
approximately two years. Green testified
that he observed Martinez with three-and-
one-half ounces of crack between five and
seven times. Also, Green stated that he
had seen Martinez with approximately one
ounce of crack on five or six different
occasions. Additionally, Green testified
that he had seen Willie Johnson with an
ounce of crack at least twenty times, but
Green knew that the crack in Johnson’s
possession belonged to Martinez. Frank
Williams testified that he once saw
Martinez with approximately three ounces
of crack. Although Sheridan Johnson
testified that he had only seen Martinez
with crack on six to eight occasions, he
stated that on the few times he
accompanied Martinez on the drive from
Sparta to Murphysboro, Martinez would
have approximately two ounces of crack on
him. Harris testified that he had
obtained quarter-ounce amounts of crack
from Martinez every two weeks for close
to one year. He further testified that he
had seen Martinez with approximately
three ounces of crack on one occasion.
Willie Johnson testified that from mid-
1995 to mid-1998 he and Martinez had
purchased multiple ounces of crack from
Gladney on a regular basis and on two or
three occasions had purchased half ounces
from Gladney’s brother.

  Martinez called three witnesses to
testify on his behalf: Calvin Hinton,
Camika Penny, and Amy Collins. All three
witnesses testified that they had
overheard Swope after he testified at
trial, stating that it was not Martinez
on the FBI’s tape recording but Sheridan
Johnson. They claimed they heard Swope
say that the government told him to say
it was Martinez. They also testified that
they had never seen Martinez in
possession of any amount of crack.

  However, during the government’s cross-
examination of Hinton, he admitted
telling FBI agents that he had not only
seen Martinez with crack, but had
purchased crack from Martinez. Hinton
also stated that on the same day that he
had received the subpoena to testify at
trial he spoke to Martinez on the
telephone and Martinez had asked Hinton
if he was going to testify. Although
Hinton stated at trial that he did not
feel threatened by Martinez, FBI Agent
Bob Dueker testified that Hinton had
previously told him that he had felt
threatened by Martinez’s call.

  On January 13, 2000, the jury convicted
Martinez on both counts. However, the
jury was not requested to and did not
return a verdict which reflected any
determined amount of crack. Following the
conviction, the district court ordered
the Probation Office to prepare a Pre-
Sentence Investigation Report ("PSR").
The Probation Officer calculated that the
relevant amount of crack distributed by
Martinez during the conspiracy was 9.23
kilograms of crack. This determination
was made based on the proffer interviews
of Willie Johnson, Gladney, Green, and
Williams. Because Martinez was being
sentenced under the United States
Sentencing Guidelines ("U.S.S.G." or the
"guidelines"), the PSR concluded that for
guideline purposes Martinez was
responsible for 1.5 kilograms or more of
cocaine base in the form of crack. The
recommended guideline range, as
determined by the PSR, was mandatory life
imprisonment based on Martinez’s Offense
Level 43 and Criminal History Category I.
Martinez’s attorney filed no objections
to the PSR.

  During the sentencing hearing on April
7, 2000, the district court asked
Martinez and his counsel if they had any
objections to the PSR. Defense counsel
maintained that she had no objections
which would affect the guideline range.
The government made one objection to the
PSR, stating that there should be a two-
level sentence enhancement for
obstruction of justice pursuant to
U.S.S.G. sec. 3C1.1. The objection was
based on Martinez’s attempt to intimidate
Hinton. The district court granted the
enhancement, but because Martinez’s
sentencing range was mandatory life
imprisonment, the two-level increase did
not affect Martinez’s sentence. Adopting
the recommendations of the PSR, the
district court sentenced Martinez to life
imprisonment on Count I and 240 months on
Count II. Martinez filed this timely
appeal based solely on the Supreme
Court’s decision in Apprendi.

II.   ANALYSIS

  Martinez contends that this court must
reconsider his conviction and sentence in
light of the Supreme Court’s holding in
Apprendi. He states that because he was
sentenced above the statutory maximum for
a drug offense without a jury
determination of the quantity of
drugsinvolved in the offense his
conviction should be reversed or his case
should be remanded for re-sentencing. In
Apprendi, the Supreme Court held that any
fact other than a prior conviction that
increases the penalty for an offense
beyond the statutory maximum for that
offense is an element of the crime and
must be submitted to the jury and proved
beyond a reasonable doubt. 530 U.S. at
491.
  Martinez was sentenced to a mandatory
life sentence on the basis of the
district court’s determination that
Martinez was responsible for 1.5
kilograms or more of crack during the
conspiracy. However, under 21 U.S.C. sec.
841(a)(1)(C), the maximum penalty which
may be imposed for an offense that does
not specify a quantity of drugs involved
is twenty years. Because the jury did not
determine the quantity of the drugs
involved in the crime, Martinez’s life
sentence is in direct conflict with the
holding in Apprendi. See United States v.
Nance, 236 F.3d 820, 824-25 (7th Cir.
2000), petition for cert. filed (U.S.
Apr. 24, 2001) (No. 00-9633).

  However, we have held that when the
defendant does not object to the
indictment’s failure to state the drug
quantity nor does he ask the court to
submit the question of drug quantity to
the jury, our review is for plain error.
Nance, 236 F.3d at 824. In review for
plain error, "we must decide (1) whether
there was an error at all, (2) whether it
was plain, (3) whether it affected the
defendant’s substantial rights, and (4)
whether (if the first three factors are
present) it seriously affected the
fairness, integrity, or public reputation
of the judicial proceedings." Id. (citing
Johnson v. United States, 520 U.S. 461,
466-67 (1997)). In the instant case, we
concede that the district court’s
decision not to submit the question of
drug quantity to the jury was an error,
thereby meeting the first prong of plain
error review. Under the second prong,
current law after Apprendi is clear that
the question of drug quantity must be
submitted to the jury, thus the error is
sufficiently plain. In satisfying the
third prong, the error substantially
affected Martinez’s rights by increasing
his sentence from twenty years to life
imprisonment.

  Although the error in the instant case
meets the first three prongs of plain
error review, a reversal is not always
required in such cases. United States v.
Patterson, 241 F.3d 912, 913 (7th Cir.
2001), petition for cert. filed (U.S. May
30, 2001) (No. 00-10365). In analyzing
the fourth prong of the test, "[u]nless
the error also causes a miscarriage of
justice, in the sense of ’seriously
affecting the fairness, integrity or
public reputation of judicial
proceedings,’ a court of appeals retains
discretion to affirm the judgment." Id.
(quoting United States v. Olano, 507 U.S.
725, 736 (1993) and Johnson, 520 U.S. at
469). In Johnson, the Supreme Court held
that overwhelming evidence of guilt makes
it difficult to demonstrate a miscarriage
of justice which justifies a reversal on
the basis of the error. 520 U.S. at 470.
In the same sense, when there is
overwhelming evidence presented as to the
minimum quantity of drugs necessary to
sustain the sentence imposed, we have
found that the error is not so serious
that it requires us to set aside the
judgment. See Patterson, 241 F.3d at 913-
14.
  Under 21 U.S.C. sec. 841(b)(1)(A)(iii),
a person who distributes, or conspires to
distribute, a mixture or substance
weighing more than 50 grams/3 and
containing a detectable quantity of
cocaine base ("crack") may be sentenced
to life imprisonment. We must determine
whether the evidence here was so
overwhelming that any reasonable jury
would have been bound to conclude that
Martinez’s conspiracy and drug activity
involved more than 50 grams. See
Patterson, 241 F.3d at 914. At
sentencing, the district court determined
the amount of drugs attributed to
Martinez which constituted his relevant
conduct was 1.5 kilograms or more of
crack. The PSR determined Martinez’s
relevant conduct was 9.23 kilograms,/4
nearly 200 times the amount necessary to
sustain a life sentence, but reduced this
figure to 1.5 kilograms or more for
guideline purposes. The testimony of
Gladney, Martinez’s main supplier of
crack (but not his only source as
testimony indicated at trial), places
Martinez in possession of a minimum of 30
ounces (850.5 grams) of crack. In
addition, there were numerous witnesses
who testified to having seen Martinez
with varying amounts of crack. Given the
duration and scope of Martinez’s
organization, the evidence was
overwhelming that the amount of crack was
far beyond 50 grams. See id. No
reasonable jury could conclude that the
conspiracy involved under 50 grams of
crack. Therefore, because the evidence
was more than sufficient to show an
amount of crack which would allow for a
life sentence, the error did not
seriously affect the public integrity,
fairness, or reputation of these
proceedings, and we will not upset the
verdict on plain error review.

  Martinez also argues that because the
indictment did not allege any quantity of
crack, it failed to allege an essential
element of the offense, and therefore,
his conviction should be reversed and the
indictment dismissed. However, that fact
does not affect our analysis. See
Patterson, 241 F.3d at 914. On plain
error review, "once the court concludes
that the evidence was so strong that a
petit jury was bound to find[ ] that a
particular drug and quantity was
involved, we can be confident in
retrospect that the grand jury (which
acts under a lower burden of persuasion)
would have reached the same conclusion."
Id. Because no reasonable jury could have
decided that Martinez had distributed
less than 50 grams of crack, there was no
need for the indictment to allege a
specific quantity of drugs.

III.   CONCLUSION

  For the above stated reasons, we AFFIRM
the judgment of the district court.

FOOTNOTES

/1 According to FBI Agent Brenn Tallent who testi-
fied at trial, one-eighth ounce of crack is
typically referred to as an "eight ball" and
weighs 3.5 grams.

/2 One ounce is equivalent to 28.35 grams. The
American Heritage College Dictionary 968 (3d ed.
1993).

/3 One thousand grams is equivalent to one kilogram.
The American Heritage College Dictionary 747.

/4 As noted, this estimate was based on information
from several proffers. However, these proffers
were not admitted into evidence at trial.
