In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1719

United States of America,

Plaintiff-Appellee,

v.

Diego Albarran,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 371--James F. Holderman, Judge.

Argued November 3, 2000--Decided November 30, 2000



      Before Flaum, Chief Judge, and Easterbrook and
Williams, Circuit Judges.

      Flaum, Chief Judge. 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

      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.

      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.

      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.

      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.

      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

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.

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

      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).

      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.

      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.

      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.

      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.
      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

       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).

      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.

      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.

      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.

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

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