In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4205

United States of America,

Plaintiff-Appellee,

v.

Calvin Trennell, a/k/a Meechie,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 561--Rebecca R. Pallmeyer, Judge.

Argued November 1, 2001--Decided May 17, 2002



  Before Flaum, Manion, and Kanne, Circuit
Judges.

  Manion, Circuit Judge. In 1998, Calvin
Trennell was indicted for conspiring to
possess with the intent to distribute
cocaine and cocaine base, also known as
crack cocaine, in violation of 21 U.S.C.
secs. 841 and 846. The indictment did
not identify the specific quantity of
cocaine and cocaine base involved in the
conspiracy, but rather referred to
"wholesale quantities." Three days before
his trial was scheduled to commence, the
Supreme Court announced its decision in
Apprendi v. New Jersey, 530 U.S. 466
(2000), holding that factors, other than
prior convictions, which increase a
sentence beyond the statutory maximum
must be submitted to the jury and proven
beyond a reasonable doubt. At the
pretrial hearing, the government
suggested the possibility of reconvening
the grand jury to obtain a superseding
indictment in light of the concerns
raised by the holding in Apprendi.
However, because of scheduling concerns
of both the government and defense
counsel, Trennell was tried under the
original indictment. At trial, the
government’s bill of particulars, jury
instructions, and verdict form all
referred to specific amounts of cocaine
and cocaine base. The jury found that
Trennell conspired to distribute more
than 5 kilograms of cocaine and 50 grams
of cocaine base. After trial, Trennell
filed a motion for a new trial or for
judgment notwithstanding the verdict,
arguing that it was an error to allow a
verdict form that permitted the jury to
find specific amounts of cocaine
attributable to him when the indictment
was silent as to drug quantities. The
district court denied Trennell’s motion
and sentenced him to 360 months in prison
with a five-year period of supervised re
lease, a fine of $5,000, and a mandatory
special assessment of $100. Trennell
appeals. We affirm the conviction and the
sentence.

I.   Background

  In 1997, the FBI identified Robert
Allen, Jr. as a drug dealer and began a
wiretap investigation. Through that
operation, the government discovered that
Calvin Trennell was a participant in a
large drug conspiracy as both a cocaine
and cocaine base dealer. Trennell, along
with Allen and other co-conspirators,
purchased cocaine and cooked it into
cocaine base which they then re-sold. By
cooking the cocaine with a mixture of
baking soda, the quantity of drugs could
be increased by 100%. Trennell also
brokered cocaine and cocaine base
transactions between Allen and other
conspirators. Robert Allen testified at
Trennell’s trial that from 1996 through
1998, the conspiracy was involved in
trafficking 100 kilograms of cocaine
base.

  One of the transactions between Allen
and Trennell occurred while Trennell was
under surveillance by the FBI in 1998.
During that transaction, Trennell
received $20,000 from Allen to buy
cocaine. Police followed Trennell in his
car after the transaction and a chase
ensued. He attempted to dispose of the
cash during the chase by throwing it out
of his window but he was eventually
arrested and the cash was retrieved.
Following his arrest, in November 1998,
the government indicted Trennell and
twelve others with conspiring to possess
with the intent to distribute wholesale
quantities of cocaine and cocaine base
and using a telephone in the commission
of a felony. Each of the twelve co-
defendants pleaded guilty to the charges
and, in 1999, Trennell also pleaded
guilty to the conspiracy count. However,
because the government recommended a
sentence double that of the other co-
defendants, the court allowed Trennell to
withdraw his plea and proceed to trial.

  On June 26, 2000, three days before his
trial was scheduled to commence, Apprendi
v. New Jersey, 530 U.S. 466 (2000), was
decided, holding that factors, other than
prior convictions, which increase a
sentence beyond the statutory maximum
must be submitted to the jury and proven
beyond a reasonable doubt. At a pretrial
hearing the government raised a concern
that the indictment, as drafted, might
not comply with Apprendi because it did
not mention specific quantities of
cocaine and cocaine base. The government
suggested that a superseding indictment
including specific quantities of drugs
could be obtained, or Trennell could
proceed by way of information regarding
the drug quantities charged. Trennell’s
counsel declined to waive Trennell’s
right to a grand jury and proceed by way
of information. However, because of
scheduling concerns of both Trennell’s
counsel and government counsel, the
government decided not to obtain a
superseding indictment and to proceed
under the original indictment. At that
time, Trennell’s counsel did not object
to proceeding without a change in the
indictment./1

  During trial, the government provided a
considerable amount of evidence against
Trennell, including the testimony of
several of the co-conspirators, testimony
from agents about the wiretap
investigation on Allen, and recorded
telephone conversations involving
Trennell. Specifically, this testimony
described transactions between Trennell,
Allen and other conspirators involving
multiple kilograms of cocaine that were
cooked into cocaine base as well as
additional transactions involving dozens
of kilograms of cocaine. Trennell himself
testified that he received four and one-
half ounces of cocaine from Allen, had it
cooked into cocaine base, and then
delivered the cocaine base to another
conspirator. He defended his actions by
testifying that he was recruited into the
drug conspiracy by his cousin Jeff
Bradley, who was acting as a confidential
informant for the Drug Enforcement Agency
(DEA). He argued that he relied on the
statements by his cousin to arrive at the
conclusion that he too was working as a
confidential informant of the DEA.

  At the trial’s conclusion, the
government submitted jury instructions
that required that in order to sustain a
charge of conspiracy, the jury had to
find beyond a reasonable doubt that the
conspiracy involved a specific amount of
a controlled substance. The government
also proposed a verdict form which
instructed the jury to find beyond a rea
sonable doubt a specific amount of drugs
attributable to the conspiracy consistent
with that instruction. The defendant did
not object to the inclusion of specific
drug amounts on the proposed verdict form
or jury instructions. The jury found
Trennell guilty on the conspiracy count
of the indictment but did not reach a
verdict on the telephone count which was
later dismissed. On the verdict form the
jury specifically found that the total
amount of drugs distributed in the
conspiracy was in excess of 5 kilograms
of cocaine and 50 grams of cocaine base.

  Trennell filed a post-trial motion for
a new trial or for a judgment
notwithstanding the verdict based on the
court’s evidentiary rulings concerning
his testimony about his role as a secret
DEA agent, as well as the language of the
verdict form that allowed the jury to
find him responsible for specific
quantities of cocaine. The court denied
his motion.

  The government filed its Presentence
Report ("PSR") on September 15, 2000. The
report concluded that Trennell was
responsible for 19.5 kilograms of cocaine
and 5.25 kilograms of cocaine base. Over
Trennell’s legal objections to the PSR,
and based largely upon the testimony of
Trennell’s co-conspirators, the court
found that the evidence established that
Trennell was accountable for more than
1.5 kilograms of cocaine base. Based on
this amount of cocaine base, the court
assigned to Trennell a base offense level
of 38, pursuant to U.S.S.G. sec.
2D1.1(a)(3). Combined with a two-point
sentencing enhancement for the
substantial risk of injury related to the
car chase and another two-point
enhancement for Trennell’s false
testimony, Trennell was assigned an
offense level of 42 which has a
sentencing range of 360 months to life
imprisonment. The district court then
sentenced him to 360 months in prison
with a five-year period of supervised
release, a fine of $5,000, and a
mandatory special assessment of $100.
Trennell appeals.

II.   Discussion

  On appeal, Trennell argues that because
the indictment failed to specify a drug
quantity, but the jury instructions and
verdict form included a drug quantity,
his indictment was constructively amended
in violation of the Fifth Amendment. He
also contends that the failure of
thegovernment to include the specific
drug quantities in the indictment
violates Apprendi. Finally, he challenges
the sufficiency of the evidence, arguing
that the evidence does not support a
finding that he was accountable for more
than 1.5 kilograms of cocaine base.

A. Constructive Amendment of the
Indictment

  In determining whether the government
constructively amended Trennell’s
indictment, we first address the
appropriate standard of review. During
the instruction conference, Trennell did
not object to the jury instructions
concerning drug quantity when presented
to the court; thus we review for plain
error. See United States v. Jones, 224
F.3d 621, 626 n.3 (7th Cir. 2000) (citing
United States v. Olano, 507 U.S. 725, 732
(1993)). Trennell’s counsel only objected
to a proposed jury instruction involving
aiding and abetting and that objection
was resolved. In fact, when asked by the
court whether he had any other objections
to the instructions, he confirmed to the
judge that he had none. Typically,
whether a trial judge constructively
amended portions of the indictment is a
question of law that the Court of Appeals
reviews de novo. United States v. Pigee,
197 F.3d 879, 885 (7th Cir. 1999).
However, a defendant must properly
preserve an objection at the trial court
level before the Court of Appeals will
apply this standard. See United States v.
Renner, 238 F.3d 810, 812-13 (7th Cir.
2001). To assign error to any portion of
the charge to the jury or omission
therefrom a party must state "distinctly
the matter to which that party objects
and the grounds of the objection" before
the jury retires to consider its
verdict./2 Fed. R. Crim. P. 30. Because
Trennell did not preserve the error by
objecting to the instructions, we review
for plain error.

  Trennell claims, however, that an
indictment is a prerequisite to
jurisdiction, and that the failure to
charge an element of the offense in the
indictment is a jurisdictional defect
that requires reversal of his conviction
notwithstanding the plain error standard.
He claims that he was indicted under 21
U.S.C. sec. 841(b)(1)(C), which does not
include drug quantity and permits a
maximum sentence of 20 years. Yet he was
convicted pursuant to 21 U.S.C. sec. 841
(b)(1)(A), which includes drug quantity
and permits a life sentence. However, the
charge was broader than Trennell claims.
The indictment charges him with violating
21 U.S.C. secs. 841 & 846, and not a
specific subsection under sec. 841. And
this court has specifically held that
drug quantity is not an element of the
offense under sec. 841. United States v.
Bjorkman, 270 F.3d 482, 490-91 (7th Cir.
2001); United States v. Brough, 243 F.3d
1078, 1080 (7th Cir. 2001). Drug quantity
is also not an element of the offense of
conspiracy to distribute illegal drugs.
See 21 U.S.C. sec. 846; United States v.
Hill, 252 F.3d 919, 922 (7th Cir. 2001).
Other circuits have found that the
failure to charge drug quantity in the
indictment deprives the district court of
jurisdiction and requires automatic
reversal. See United States v. Cotton,
261 F.3d 397, 407 (4th Cir. 2001), cert.
granted, ___ U.S. ___, 122 S.Ct. 803, 151
L.Ed.2d 689 (2002) (argued April 15,
2002);/3 United States v. Gonzalez, 259
F.3d 355, 361 n.3 (5th Cir. 2001).
However, it is well established in this
circuit that an error of omission of drug
quantity in the indictment is subject to
plain error analysis. See United States
v. Atkins, 274 F.3d 444, 453 (7th Cir.
2001). See infra sec. IIB. We have
instructed prosecutors in the past, and
reiterate the position here, that post-
Apprendi indictments should specify, and
the trier of fact must be instructed to
find, both the elements of the offense,
as listed in sec. 841(a), and the drug
amounts listed in sec. 841(b) that the
prosecutor relies on to establish the
maximum sentence. However, Trennell did
not object to the failure to do so in
this case and so we review for plain
error.

  Under the plain error standard, we will
not reverse a decision unless the
defendant demonstrates that (1) there was
error; (2) the error was plain; and (3)
the error affected the defendant’s
substantial rights. See Fed. R. Crim. P.
52(b); Olano, 507 U.S. at 732-35. If the
defendant meets these three requirements,
we may correct the error if "in our
discretion, we find the error seriously
affects the fairness, integrity, or
public reputation of judicial
proceedings." United States v. Ross, 77
F.3d 1525, 1538 (7th Cir. 1996)
(discussing Olano, 507 U.S. at 736-37).
Pursuant to the plain error standard, a
constructive amendment "must constitute
’a mistake so serious that but for it the
[defendant] probably would have been
acquitted’ in order for us to reverse."
United States v. Remsza, 77 F.3d 1039,
1044 (7th Cir. 1996) (quoting United
States v. Gunning, 984 F.2d 1476, 1482
(7th Cir. 1993)).

  The Fifth Amendment states that "[n]o
person shall be held to answer for a
capital, or otherwise infamous crime,
unless on a presentment or indictment of
a Grand Jury . . . ." U.S. Const. Amend.
V. See also United States v. Soskin, 100
F.3d 1377, 1380 (7th Cir. 1996). An
indictment that is constructively amended
at trial violates the Constitution
because the Fifth Amendment requires an
indictment of a grand jury to guarantee
that the allegations in the indictment
and the proof at trial "match in order
’to insure that the defendant is not
subject to a second prosecution, and to
give the defendant reasonable notice so
that he may prepare a defense.’" United
States v. Folks, 236 F.3d 384, 390 (7th
Cir. 2001), cert. denied, ___ U.S. ___,
122 S.Ct. 74 (2001) (quoting United
States v. McKinney, 954 F.2d 471, 480
(7th Cir. 1992)). "A constructive
amendment to an indictment occurs when
either the government . . . the court .
. . or both, broadens the possible bases
for conviction beyond those presented by
the grand jury." United States v.
Cusimano, 148 F.3d 824, 829 (7th Cir.
1998) (quoting United States v. Floresca,
38 F.3d 706, 710 (4th Cir. 1994)). In
order to demonstrate constructive
amendment, the crime charged in the
indictment must be "materially different
or substantially altered at trial, [so
that] it is not impossible to know
whether the grand jury would have
indicted for the crime actually proved."
United States v. Muelbl, 739 F.2d 1175,
1180-81 (7th Cir. 1984) (internal
citations omitted) (finding no
constructive amendment when jury
instructions separated charged drug
offenses while indictment only referred
to drug offenses collectively). However,
it is not a material amendment when the
court’s description of the indictment
alters the terms of the indictment in an
insignificant manner. United States v.
Franco, 874 F.2d 1136, 1144 (7th Cir.
1989) (no amendment in supplemental
instructions); United States v. Williams,
798 F.2d at 1024, 1033 (7th Cir. 1986)
(no amendment in instructions).

  The court instructed the jury that it
could find Trennell responsible for
specific quantities of cocaine and
cocaine base./4 The jury was also given
a special verdict form that listed
several specific amounts involved in the
drugconspiracy ranging from less than 500
grams of cocaine to more than five
kilograms of cocaine and 50 grams of
cocaine base./5 While these quantities
were not specifically mentioned in the
indictment, not every variation from the
terms of the indictment materially
changes the indictment. United States v.
Baker, 227 F.3d 955, 960 (7th Cir. 2000).
In order to rise to the level of
constructive amendment, the change must
establish offenses different from or in
addition to those charged by the grand
jury. See Pigee, 197 F.3d at 886.
Trennell argues that by allowing the jury
to find the amounts of drugs involved,
his charge was increased from a crime
that carried a maximum sentence of 20
years to one that carried a maximum
sentence of life. But Trennell was
indicted for conspiring to "distribute
and to possess with intent to distribute
quantities of mixtures containing cocaine
and cocaine base . . . ." Also, the
indictment charged that part of the
conspiracy was the resale of "wholesale
quantities of cocaine and cocaine base"
by the members of the conspiracy. This
language was broad enough to include the
quantity of drugs for which Trennell was
convicted, namely 5 kilograms of cocaine
and 50 grams of cocaine base. A "variance
between the broad allegations of an
indictment and the narrower proof at
trial" is acceptable so long as "the
offense proved was fully contained within
the indictment." United States v. Miller,
471 U.S. 130, 137 (1985). Because the
proof at trial was fully contained in the
indictment, and the jury instructions
were narrower than the indictment,
Trennell’s claim that the indictment was
constructively amended fails. The
indictment put Trennell on notice that
evidence of quantities, and specifically,
wholesale quantities of cocaine and
cocaine base, would be introduced in the
government’s case. Thus, he was able to
prepare a defense. Therefore the court
did not commit plain error by including
specific quantities of drugs in the jury
instructions and verdict form.

B.   Apprendi Issue

  Trennell argues next that his conviction
must be reversed under Apprendi because
the indictment did not charge a specific
quantity of drugs, even though the drug
quantity was submitted to the jury.

  The applicability of Apprendi is a
question of law that we review de novo.
United States v. Chemetco, Inc., 274 F.3d
1154, 1158 (7th Cir. 2001). Under
Apprendi, "[o]ther than the fact of a
prior conviction, any fact that increases
the penalty for a crime beyond the
prescribed statutory maximum must be
submitted to the jury . . . ." Apprendi,
530 U.S. at 490. Trennell argues that
decisions from this circuit applying
Apprendi require that facts which
increase a defendant’s sentence above the
statutory maximum must both be charged in
the indictment and submitted to the jury.
See, e.g., United States v. Westmoreland,
240 F.3d 618, 632 (7th Cir. 2001) ("Thus,
when drug quantity is not charged in the
indictment or submitted to the jury, the
statutory maximum under sec. 841(b) must
be determined without reference to drug
quantity."). Trennell argues that because
the indictment failed to specifically
address drug quantity, the maximum
sentence he could have been exposed to
was 20 years. Because he received a 30-
year sentence under sec. 841(b), he
argues that his sentence was illegally
increased above the statutory maximum in
violation of Apprendi.
  In the wake of Apprendi, we have held
that sections "841(b)(1)(A) and
841(b)(1)(B), the enhanced statutory
maximum penalty provisions of sec. 841,
’may not be utilized for sentencing
without a finding of drug quantity by the
jury.’" Westmoreland, 240 F.3d at 632
(citations omitted). Here the alleged
Apprendi error occurred not at
sentencing, as the jury found drug
quantity beyond a reasonable doubt, but
only at the indictment stage. Therefore,
in order for us to find an Apprendi
violation, we would have to find that the
failure alone of the indictment to state
drug quantities that the prosecutor seeks
to prove under sec. 841(b) would be a
constitutional violation, even if the
trier of fact finds those quantities
beyond a reasonable doubt. We held in
Bjorkman that Apprendi does not "rewrite
or change the elements of any federal
offense; it does, however, determine who
must make particular decisions, and what
the burden of persuasion must be."
Bjorkman, 270 F.3d at 491. Because
Apprendi arose as a state prosecution, it
did not address federal offenses and did
not address the contents of a federal
indictment. See Apprendi, 530 U.S. at 477
n.3 (disclaiming any reliance on, or
interpretation of, the Fifth Amendment’s
Indictment Clause). Other circuits have
held, contrary to this position, that the
failure to charge drug quantity in the
indictment deprives the district court of
jurisdiction and requires automatic
reversal. See Cotton, 261 F.3d at 407;
Gonzalez, 259 F.3d at 361. We need not,
however, resolve the issue in this
scenario, because even if an Apprendi
error occurred by failing to allege drug
quantity in the indictment, it was
harmless because the trier of fact did in
fact determine drug quantity beyond a
reasonable doubt. Cf. United States v.
Mechanik, 475 U.S. 66, 72-73 (1986)
(holding that petit jury’s guilty verdict
in prosecution for drug-related offenses
and conspiracy established probable cause
to charge defendants and thus rendered
harmless any error in grand jury’s
charging decision).

  It is now well established in this
circuit that "Apprendi errors in both the
indictment and the charge to the jury are
subject to harmless error analysis."
United States v. Atkins, 274 F.3d 444,
450 (7th Cir. 2001) (citing United States
v. Bjorkman, 270 F.3d 482, 492 (7th Cir.
2001); United States v. Martinez, 258
F.3d 582, 586 (7th Cir. 2001); United
States v. Nance, 236 F.3d 820, 825 (7th
Cir. 2000)). Under that standard of
review, if it is clear beyond a
reasonable doubt that a properly
instructed jury would have found Trennell
guilty of conspiring to possess with
intent to distribute over 5 kilograms of
cocaine and 50 grams of cocaine base,
then the Apprendi error was not so
serious that we would set aside the
judgment. See Atkins, 274 F.3d at 450;
Bjorkman, 270 F.3d at 492; Nance, 236
F.3d at 826. In this case we need not
engage in any hypothetical analysis as to
whether the jury’s verdict would have
differed because the jury was properly
instructed to find guilt beyond a
reasonable doubt as to drug quantity and
specifically found that Trennell was
accountable for more than 5 kilograms of
cocaine and 50 grams of cocaine base on
the special verdict form. Therefore any
error in the indictment under Apprendi is
harmless.

C.   Sufficiency of Evidence

  Trennell’s final argument is that the
district court erred at sentencing by
finding that Trennell was accountable for
more than 1.5 kilograms of cocaine base.
The jury found Trennell’s conspiracy
involved at least 5 kilograms of cocaine
and 50 grams of cocaine base. This
finding subjected him to a statutory
maximum sentence of up to life
imprisonment under either 21 U.S.C. sec.
841(b)(1)(A)(ii)(II), for cocaine, or
(iii), for cocaine base. The district
court calculated his base offense level
at 42, based on the determination that
Trennell was accountable for more than
1.5 kilograms of cocaine base, which set
his sentencing guideline range at 360
months to life imprisonment. Trennell
argues that while the trial testimony is
"replete with testimony about
transactions involving cocaine powder,"
he maintains that the record does not
support the district court’s finding that
he conspired to distribute 1.5 kilograms
of cocaine base./6

  On this appeal, Trennell does not
challenge the district court’s factual
finding that over 15 kilograms of cocaine
may be attributed to him, and the record
amply supports this finding. According to
U.S.S.G. sec. 2D1.1(c), a person
convicted of a crime involving between 15
and 50 kilograms of cocaine has a base
offense level of 34. However, the
district court also found that Trennell’s
crimes involved 1.5 kilograms of cocaine
base, which mandates a base offense level
of 38. At the sentencing hearing the
judge noted that "I think the evidence
amply establishes that the amount,
whatever it was, was in excess of 1.5
[kilograms of cocaine base]." We review a
district court’s factual findings at
sentencing for clear error. United States
v. Roe, 210 F.3d 741, 748 (7th Cir.
2000). Under this standard a district
court’s findings will only be reversed if
the court is left with "a definite and
firm conviction that a mistake has been
committed." United States v. Huerta, 239
F.3d 865, 875 (7th Cir. 2001) (citations
omitted).

  The testimony at trial does indicate
that a significant amount of cocaine base
exchanged hands between the conspirators.
Specifically, his co-conspirators
testified that in total, 3 to 5 kilograms
of cocaine powder were cooked into
cocaine base for Trennell during 1997. In
the cooking process, baking soda is added
to the cocaine base so that more drugs
are produced in the process than the
starting amount of cocaine./7 Also, one
of the conspirators testified that he was
involved in a drug transaction involving
five kilograms of cocaine base. This
testimony is sufficient to support the
district court’s finding that Trennell
was responsible for more than 1.5
kilograms of cocaine base.
  Trennell also argues that the district
court erred by not establishing a cocaine
to cocaine base conversion ratio as
required by United States v. Stott, 245
F.3d 890, 911 (7th Cir. 2001). Under
Stott, when sentencing is determinative
on quantities of cocaine that have been
converted into cocaine base, it is
"incumbent upon the Government to
establish a conversion ratio." Id.
(citing United States v. Hunter, 145 F.3d
946, 952 (7th Cir. 1998) ("[C]onversion
ratios are a finding of fact that must be
determined in each individual case . . .
.")). A conversion ratio includes two
components: the percentage of the powder
cocaine that a defendant could reasonably
foresee would be converted into base, and
evidence of the percentage of weight lost
during theprocess of converting cocaine
into base. Id. See also Hunter, 145 F.3d
at 952. However, the district court did
not need to convert the amounts of
cocaine to cocaine base because the
evidence indicated that when Trennell
provided 3 to 5 kilograms of cocaine to
co-conspirators, he received this amount
of cocaine base in return. And, finally,
evidence was presented at trial that he
was involved in actual transactions of
cocaine base that amounted to more than 5
kilograms. Due to this fact, any reliance
placed by the defendant on Stott is
misplaced. In this case, based on the
wealth of evidence presented to the
court, the district court did not commit
clear error in sentencing Trennell based
on an excess of 1.5 kilograms of cocaine
base.

III.   Conclusion

  Trennell does not succeed on his
arguments that the indictment was
constructively amended because he was on
notice from the indictment that he would
be prosecuted for participating in a
conspiracy to distribute certain
quantities of cocaine and cocaine base.
Secondly, because the jury found specific
amounts beyond a reasonable doubt, any
Apprendi error in the indictment was
harmless. Finally, the trial court did
not commit clear error on sentencing
because evidence at trial permitted the
district court to find that Trennell’s
conspiracy involved more than 1.5
kilograms of cocaine base. For the
foregoing reasons, we affirm the verdict
and Trennell’s sentence.

FOOTNOTES

/1 At the pretrial hearing Trennell’s counsel stated
that adding quantity terms to the indictment
"would not materially change the indictment. It
does change Mr. Trennell’s rights in the event of
a conviction and a potential sentence, but it
does not materially change the indictment."
Later, during the same hearing, the following
colloquy occurred:

GOVERNMENT COUNSEL: We have closure on the grand
jury. . . . We will not be seeking to supersede.

THE COURT:   Okay.

DEFENSE COUNSEL:     Good.
THE COURT:   That’s fine.

GOVERNMENT COUNSEL:   Terrific.

/2 Trennell did raise this issue in a post-trial
motion, but that does not cure his failure to
object to the instructions at the time they were
delivered. See Woods v. City of Michigan City,
Ind., 940 F.2d 275, 280 (7th Cir. 1991) (holding
that post-judgment motions cannot be used to
raise arguments or legal theories that could have
been and should have been brought before judg-
ment).

/3 Both Cotton and Gonzalez involved defendants who
were sentenced in excess of the statutory maximum
for drug-related crimes. In Cotton, the Fourth
Circuit found that it was plain error to impose
a sentence of more than 20 years on defendants
indicted and convicted for conspiracy to distrib-
ute cocaine hydrochloride and cocaine base when
neither the indictment nor the verdict included
specific drug amounts. Cotton, 261 F.3d at 404-
07. In Gonzalez, the defendant pleaded guilty to
conspiracy to possess with intent to distribute
500 pounds of marijuana, but was sentenced based
on 777 kilograms of marijuana. Gonzalez, 259 F.3d
at 357. The Fifth Circuit held that because the
quantity of marijuana was not alleged in the
indictment, it was plain error for Gonzalez to
have been sentenced to 78 months which was longer
than the statutory maximum of 60 months. Id. at
358-61. Both circuits reached this decision by
holding that the jurisdictional defect caused by
the failure to include drug quantity in the
indictment could not be cured regardless of the
evidence introduced at trial. Cotton, 261 F.3d at
405; Gonzalez, 259 F.3d at 361 n.3. In neither of
these cases was the issue of drug quantity sub-
mitted to a jury and found beyond a reasonable
doubt as it was for Trennell.

/4 Instruction No. 19 provided:

To sustain the charge of conspiracy against the
defendant in Count One, the government must
prove:

. . .

Third that the charged conspiracy involved a
specific amount of controlled substances.

If you find from your consideration of all of the
evidence that each of these propositions has been
proven beyond a reasonable doubt, then you should
find the defendant guilty of Count One.

/5 The jury selected the maximum available options
on the special verdict form which stated:

With respect to Count One, we, the jury, further
find as follows:

. . .
                                         YES        NO

Total Amount of the Drugs
Distributed in the Conspiracy
Were in Excess of Five Kilograms
of Cocaine                                  X

Total Amount of the Drugs
Distributed in the Conspiracy
Were in Excess of 50 Grams
of Cocaine Base                             X

/6 The government argues that Trennell has waived
this issue for purposes of appeal. Waiver results
from the intentional relinquishment of a known
right. United States v. Walton, 255 F.3d 437, 451
(7th Cir. 2001). The government contends that
Trennell has waived any dispute concerning the
evidence that served as the basis of his sentence
because at the sentencing hearing, defense coun-
sel conceded that they did not have "any factual
disputes" with the PSR. However, at sentencing,
Trennell did object to the attribution of the 1.5
kilograms of cocaine base on the basis that the
government failed to prove that the cocaine
provided to Trennell was converted to cocaine
base. On appeal Trennell contests both the con-
version factor and the sufficiency of evidence
provided to the district court. Whether this
challenge was adequate to preserve the challenge
is a close question. However, because his argu-
ment for insufficient evidence fails, we need not
decide this issue.

/7 Under the Sentencing Guidelines, the purity of
the cocaine base cooked for the defendant has no
impact on the weight determination for the pur-
poses of sentencing. See United States v. Tucker,
20 F.3d 242, 245 (7th Cir. 1994) (holding that
defendant was accountable for water and baking
soda contained in cocaine base mixture under 21
U.S.C. sec. 841(b)(1)(B)(iii) as defined by
U.S.S.G. sec. 2D1.1(c)).
