                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                              Argued October 3, 2006
                             Decided October 24, 2006

                                      Before

                     Hon. DANIEL A. MANION, Circuit Judge

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. DIANE S. SYKES, Circuit Judge

No. 05-4685

UNITED STATES OF AMERICA,                       Appeal from the United States District
             Plaintiff-Appellee,                Court for the Northern District of
                                                Indiana, Fort Wayne Division.
      v.
                                                No. 05 CR 14
JOSE LUIS CASTANEDA-GALVAN,
              Defendant-Appellant.              William C. Lee,
                                                Judge.

                                    ORDER

       A jury found federal prisoner Jose Luis Castaneda-Galvan guilty of
attempting to escape from the Allen County Jail in Ft. Wayne, Indiana. See 18
U.S.C. § 751(a). The district court sentenced him to 24 months’ imprisonment on
the escape charge to run consecutively to his undischarged term on prior drug
convictions. Castaneda-Galvan now appeals, arguing that there was insufficient
evidence to convict him of attempted escape. We affirm.


      In 2004, Castaneda-Galvan was convicted of distributing D-amphetamine
hydrochloride, and possessing methamphetamine with the intent to distribute. See
21 U.S.C. § 841(a)(1). The district court ultimately sentenced him to a total of 108
months’ imprisonment on prior drug convictions. However, while awaiting
No. 05-4685                                                                     Page 2

sentencing on the drug counts at the Allen County Jail, Castaneda-Galvan was
caught burning a window in the cell of fellow inmate William Middleton and was
charged with attempting to escape from the jail in violation of 18 U.S.C. § 751(a).


       At Castaneda-Galvan’s jury trial on the escape charge at issue here, the
government’s first witness was Middleton, who acknowledged testifying under a
grant of immunity. Middleton testified that he was an inmate with Castaneda-
Galvan and that both of their cells were located in the “B Block” of the jail;
Middleton was in cell 1216, and Castaneda-Galvan was in cell 1213. On
approximately November 14 or 15, 2004, Middleton testified, he and Castaneda-
Galvan were in Middleton’s cell when Castaneda-Galvan noticed that the outside
glass pane of Middleton’s double-paned window was shattered and suggested that
they try to escape from the jail by breaking through the inside shatterproof plastic
window that remained. The inmates planned to make holes in the plastic window
and then use heated, waxy mattress twine to cut “belts” out of the rest of the
window.


       Middleton explained to the jury that he began the process by heating paper
clips and pushing them into the plastic until they went all the way through. At that
point, they attempted to pull the mattress twine through the holes, but this process
was too time-consuming and unsuccessful because the twine kept breaking.
Castaneda-Galvan then tried to enlarge the holes by taking screws Middleton
removed from a shower vent and turning them into the paper-clip holes using a
metal plate as a screwdriver. When this did not work, Middleton suggested that
they burn the window with “wicks,” which Middleton described as pieces of towel
held together by string and covered with hair grease, baby oil, and toothpaste.
Middleton explained that the baby oil helped keep the fire burning and the
toothpaste reduced the smoke smell and kept the smoke from burning black.


       In order to light the wicks, Middleton testified, he took a paper clip connected
to a piece of rubber and inserted that into an electrical outlet located 10 feet from
the outside of his cell. Middleton explained that this would cause sparks to fly from
the outlet, and those sparks would ignite toilet paper that he held in his other hand.
He then took the flaming toilet paper into his cell and ignited the wicks. Once the
wicks were on fire, Middleton testified, Castaneda-Galvan held the wicks to the
plastic window until it started to melt and “bubble out.” Once it had bubbled,
Castaneda-Galvan used the metal plate to scrape out the melted plastic, which
Middleton then flushed down the toilet.
No. 05-4685                                                                    Page 3

      To avoid detection by the guards, Middleton testified, he put wet toilet paper
and bags over the window in his cell door so that the guards could not see inside
and so that his cell mates would think he was using the toilet. He then acted as a
lookout while Castaneda-Galvan worked on the window, and would warn him when
guards were coming. In an attempt to keep the smoke from filling the room,
Middleton explained, he put a mattress over the toilet bowl and then pushed the
mattress into the toilet bowl until all of the water was absorbed into the mattress.
Without water in the bowl, the toilet acted as a suctioning device and would suck
down much of the smoke caused by the wicks.


        Middleton continued that on November 18, 2004, a few days into their plan,
he was acting as a lookout when he heard keys. Castaneda-Galvan told Middleton
to sit on the toilet and make it look like he was using the restroom, which he did.
When the guards unlocked the door to Middleton’s cell, he got up from the toilet and
began putting his jumpsuit on while Castaneda-Galvan remained seated on the bed
by the window. Middleton then left the room at the guards’ direction.


       Middleton further testified that he believed he and Castaneda-Galvan would
have been able to escape through the square hole they were making; he explained
that he thought their heads could fit through the hole, and he believed that if his
head could fit through so would the rest of his body. Once they squeezed through
the window, Middleton explained, they planned to land on the roof and then run
across I-beams until they found a place to jump down outside the jail grounds.
Middleton also explained that before his arrest he had drawn artwork for use at a
tattoo parlor, but he denied drawing any artwork for inmates to use for tattoos
while imprisoned. He further testified that while confined in B Block he had never
seen Castaneda-Galvan make ink for tattoos and had never seen him tattoo another
inmate.


        The Sergeant on duty the night of November 18, 2004, Amy Jones-Schild,
testified that she had received a note written by an inmate stating that the
occupants of cells 1216 and 1213 were going to attempt to escape through the
window in cell 1216 that night. When she and other officers entered cell 1216 to
investigate, Jones-Schild testified, she found wicks and hair gel on the top bunk.


       Guard Andrew Keller testified that upon entering cell 1216 he observed
Castaneda-Galvan sitting on the top bunk, covered in what looked like soot. He
also told the jury that he noticed a strong burning smell and observed that the
window looked like it had been partially melted. Keller then escorted Castaneda-
Galvan to the receiving area at the jail and, as he was doing so, noticed a black
No. 05-4685                                                                     Page 4

substance on Castaneda-Galvan’s hands and uniform as well as several stains that
“looked like they had been caused by an oily substance.”


        Guard Maria Sabanski testified that, before entering cell 1216 the night of
November 18, 2004, she noticed that a paper bag was covering the window on the
cell door. As she entered the cell, she observed Castaneda-Galvan sitting on the top
bunk near a burn mark on the right-hand corner of the cell’s window and saw
Middleton sitting on the toilet with his jumpsuit down to his waist, but noticed that
he was not disrobed as he would be if he were using the restroom. Sabanski also
testified that the items she recovered from the cell included a bottle of baby oil from
the window sill, torn sheets, two wicks, an ink pen, a pencil, a metal plate, a bottle
of gel, and plastic from the window.


       The lieutenant on duty that night, Roger Compton, testified that as he
entered cell 1216 that night he noticed paper near the bottom of the door that was
being used to limit the air drafts in and out of the cell, and observed that the cell
had a “considerable amount of smoke in it.” Lieutenant Compton also said he saw
an inmate sitting on the toilet with his uniform halfway down, and observed
Castaneda-Galvan sitting on the top bunk next to a window that appeared to have
soot on it and a wick that looked like it had been burning. Further, Compton said,
he noticed that Castaneda-Galvan’s uniform was “covered with a dark soot like
substance that had some wet spots on it,” and that his hands also appeared to have
“traces of soot” on them. Finally, Compton testified that he knew from working at
the jail for 13 years that inmates had once used soot for tattooing, but had switched
to ink in the early 1990s after restrictions on possessing pens were relaxed. And
even when the inmates had made soot for tattoos, Compton added, he had never
seen them make it by melting a plastic window, nor in his 13 years had he ever seen
a window damaged in the manner Middleton and Castaneda-Galvan had damaged
the window in cell 1216.


       The defense began its case by presenting the testimony of Dennis Epps, an
inmate also housed in B Block at the time of Castaneda-Galvan’s alleged escape
attempt. Epps testified that on the evening of November 18, 2004, he reported to
guards that a switch plate was missing from his wall. He also testified that he had
firsthand knowledge regarding “jailhouse tattoos,” and said he believed that
inmates who gave tattoos burned plastic and mixed it with shampoo to make “ink.”
Epps then told the jury that he thought Castaneda-Galvan had given tattoos to
other inmates, but that he had never seen him give any tattoos, and that around
November 18, 2004, Middleton had told him he was working with Castaneda-
Galvan to get ink for a tattoo.
No. 05-4685                                                                      Page 5


       Antwaine Gray, another inmate housed in the B Block on November 18,
2004, testified that he had arranged for Castaneda-Galvan to tattoo “Fort Kaine” (a
reference to cocaine) on his hands in exchange for several commissary items. Gray
also testified that Middleton had already done the artwork for his tattoo, but that
he had never paid Middleton for his work and he no longer had the paper on which
Middleton had supposedly drawn it.


      Finally, Castaneda-Galvan testified that he was in Middleton’s cell on
November 18, 2004, but was there to make tattoo ink. He stated that when he went
into Middleton’s cell around 6:30 p.m. the wicks were already made and one of the
wicks was burning. He admitted melting plastic from potato chip bags to make soot
to mix with shampoo to make ink, but he testified that he did not melt the window,
nor was he in the cell when the plastic was removed from the window.


       In rebuttal, the government called guard Jeffery Kroemer, who testified that
the jail prohibits making tattoo ink or tattooing other prisoners. In his eight years
as a disciplinary officer at Allen County Jail, he testified, he had seen tattoo kits
that included shampoo bottle caps, sharpened staples, and ballpoint pens, but he
had never seen inmates make ink for tattoos by burning windows.


       On appeal Castaneda-Galvan argues that there is insufficient evidence to
support the jury’s guilty verdict because Middleton’s testimony was “so incredible
that no rational jury could have believed it.” Specifically, Castaneda-Galvan points
to the size of the hole that had been cut—12 inches by 8 inches—and insists that
“the idea that two grown men would attempt to escape through a hole in a window
[this size] defies all credibility and common sense.” Castaneda-Galvan also
characterizes Middleton’s testimony regarding their plan to cut the plastic using a
waxy-twine string as “so ridiculous it renders Middleton’s testimony inherently
unreliable.”


       When reviewing challenges to the sufficiency of the evidence, we view all
evidence in the light most favorable to the government and will reverse a jury's
verdict only if no rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Hale, 448 F.3d 971, 982 (7th
Cir. 2006). We will overturn a jury verdict only if it finds that the record contains
no evidence, whether weighed in a light most favorable to the prosecution or the
defense, from which the jury could have found guilt beyond a reasonable doubt.
United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2006). Under this standard of
No. 05-4685                                                                    Page 6

review, the appellant faces a “nearly insurmountable” hurdle. Hale, 448 F.3d at
982.


       To meet its burden under § 751(a), the government was required to prove
that 1) Castaneda-Galvan was lawfully in the custody of the Attorney General of
the United States, and 2) he knowingly attempted to leave custody without
authorization to do so. 18 U.S.C. § 751(a); United States v. Richardson, 687 F.2d
952, 961 (7th Cir. 1982); 7th Cir. Pattern Jury Instr. Crim. § 751 (1999). Because
Castaneda-Galvan stipulated to the first element, we need only examine whether
the evidence of the second element, when viewed in the light most favorable to the
government, was sufficient to support the jury’s guilty verdict.


       Castaneda-Galvan presents no compelling argument that the government’s
evidence was insufficient to support this verdict. Middleton testified that he and
Castaneda-Galvan intended to escape from the Allen County Jail on November 18,
2004. He then described to the jury in great detail how they had attempted to do so
using paper clips and twine to cut the window and, when that did not work, how
they used wicks to melt the window. Although Castaneda-Galvan argues that
Middleton’s story regarding the twine was “ridiculous,” Middleton admitted that
this method of cutting the window did not work, and that they decided to burn the
window instead, a method that was much more successful as evidenced by the
testimony of Middleton and the numerous officers who observed the burned
window, as well as by the pictures presented at trial showing long, missing strips of
the plastic window that had been burned away. Furthermore, although Castaneda-
Galvan insists that it would have been “patently physically impossible” for the two
men to escape through a 12-inch by 8-inch hole, there was no reason for the jury to
believe that the inmates would not have enlarged the hole had a first attempt
proved unsuccessful and, even so, factual impossibility is no defense to a
prosecution for attempt. See United States v. Johnson, 376 F.3d 689, 694 (7th Cir.
2004) (“Futile attempts because of factual impossibility are attempts still the same.”
(quotations and citation omitted)); United States v. Lange, 312 F.3d 263, 268 (7th
Cir. 2002).


       It is the role of the factfinder, not this court, to weigh evidence and make
credibility determinations. See United States v. Brown, 328 F.3d 352, 355 (7th Cir.
2003). Here, the jury chose to credit Middleton and the guards over Castaneda-
Galvan and, on this record, we can find no reason to overturn the jury’s verdict.
                                                                         AFFIRMED.
