                           In the
 United States Court of Appeals
                For the Seventh Circuit
                        ____________

No. 00-2569
UNITED STATES OF AMERICA,
                                            Plaintiff-Appellee,
                              v.

EDWARD MARTINEZ,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
          No. 99 CR 30226—William D. Stiehl, Judge.
                        ____________
  ARGUED JANUARY 10, 2001—DECIDED SEPTEMBER 3, 2002
                     ____________


  Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Edward Martinez pleaded
guilty to possession with intent to distribute illegal con-
trolled substances in violation of 21 U.S.C. § 841(a)(1). The
district court sentenced Martinez to120 months’ imprison-
ment. In this appeal, Martinez argues that his sentence
does not comply with due process, that cocaine should
not have been included in the calculation of the quantity
of drugs attributable to him, and that the court should
have granted him a two-level deduction under the safety
valve provision of the Sentencing Guidelines. We conclude
that the district court did not err in imposing Martinez’s
sentence. Accordingly, we affirm.
2                                               No. 00-2569

                    I. BACKGROUND
  An Illinois State Trooper stopped the U-Haul truck that
Martinez was driving after it drifted onto the shoulder.
After issuing a warning, the trooper asked Martinez if
he was transporting anything illegal. Martinez responded
that he was not and consented to a search of the truck.
The trooper found twenty-two bundles of marijuana weigh-
ing 314 kilograms and arrested Martinez.
   While in custody, Martinez admitted that although
he was not certain that he was hauling drugs, he was
paid two weeks’ salary to drive the truck from Texas to
Illinois. Martinez also confessed to transporting drugs on
one other occasion. Based on this evidence, Martinez was
indicted for possession of marijuana with intent to dis-
tribute.
  A few weeks later, a crime lab technician found approxi-
mately six kilograms of cocaine concealed inside the mari-
juana bundles. The grand jury then charged Martinez in a
superseding indictment with possession with intent to
distribute “divers amounts of illegal controlled substances,”
in violation of 21 U.S.C. § 841(a)(1). Martinez pleaded
guilty.
  The probation officer converted the six kilograms of
cocaine into the equivalent of marijuana under the Guide-
lines and included it in the calculation of relevant con-
duct. The probation officer concluded that Martinez was
involved with at least 1,000, but less than 3,000, kilograms
of marijuana and made this recommendation in the
Presentence Investigation Report. The PSR also recom-
mended that Martinez should be sentenced below the
statutory mandatory minimum sentence of ten years
because he met the safety valve requirements in 18 U.S.C.
§ 3553(f).
  Both parties filed objections to the PSR. Martinez as-
serted that he could be sentenced only for the 314 kilo-
No. 00-2569                                              3

grams of marijuana because he did not know or suspect
that cocaine was concealed in the marijuana. The govern-
ment argued that Martinez did not qualify for the safety
valve because he failed to provide complete and truthful
information concerning the scheme to transport drugs. After
a sentencing hearing, the district judge found that Marti-
nez’s relevant conduct included the cocaine and that
Martinez was ineligible for the safety valve. Judge
Stiehl also concluded that he was required to apply the
mandatory minimum of ten years for possession with in-
tent to distribute cocaine under § 841(b)(1)(A) and then
imposed a sentence of 120 months.


                     II. ANALYSIS
   Martinez filed this appeal on three grounds. First, he
claims his sentence violates his due process rights in
light of the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). Second, he contends that
if Apprendi does not apply, then the district court com-
mitted clear error by including the cocaine as part of his
relevant conduct. Finally, Martinez argues that the dis-
trict court committed error when it found that he was not
eligible for the safety valve provision.


 A. Apprendi and Due Process
   Martinez argues that the district court violated his
due process rights when it included both marijuana and
cocaine in his relevant conduct for sentencing purposes,
when neither drug type nor quantity were charged in the
superseding indictment. Therefore, Martinez claims, in
light of Apprendi his sentencing should be reversed.
  Under Apprendi, facts (other than a prior conviction)
that raise a defendant’s sentence above the statutory
maximum must be charged in the indictment, submitted
4                                                No. 00-2569

to the jury, and proved beyond a reasonable doubt. Ap-
prendi, 530 U.S. at 476. Because Martinez failed to raise
this issue at sentencing, we review his Apprendi claims
for plain error. See United States v. Adkins, 274 F.3d
444, 455 (7th Cir. 2001). Therefore, we will reverse Marti-
nez’s sentence only if plain error existed and “the error
‘seriously affect[ed] the fairness, integrity, or public repu-
tation of judicial proceedings.’ ” Id. (alteration in original)
(quoting Johnson v. United States, 520 U.S. 461, 467
(1997)).
  Martinez argues that because he pleaded guilty to
possessing with intent to distribute an unspecified amount
and type of controlled substance, the district court should
have sentenced him under § 841(b)(1)(D), which sets the
maximum sentence for an unspecified amount of mari-
juana at 5 years, rather than under § 841(b)(1)(A), which
provides a sentence of 5 to 40 years for possessing more
than 100 kilograms of a substance containing marijuana.
However, Martinez conceded that he transported 315
kilograms of marijuana and asserted that his sentence
should have been based on that amount. Because the max-
imum penalty for transporting at least 100 kilograms
of marijuana is 40 years, Apprendi does not apply be-
cause his sentence of 10 years falls within the statutory
range mandated by his stipulation to drug quantity. See
United States v. Wallace, 276 F.3d 360, 369 (7th Cir. 2002),
cert. denied, 122 S. Ct. 2592 (2002) (defendant’s stipula-
tion of quantity is sufficient to meet Apprendi’s require-
ment that facts determining the maximum sentence be
proved beyond a reasonable doubt). Therefore, Martinez’s
Apprendi claim must fail.


    B. Statutory Mandatory Minimum
  Next, Martinez argues that the district court should
not have considered the cocaine when it sentenced him
No. 00-2569                                                     5

because he did not know or reasonably foresee that it
was hidden in the marijuana.1 As a result, he argues the
court erred in considering the cocaine when selecting the
applicable minimum sentence under § 841(b). The gov-
ernment counters that the district court was correct in
considering the cocaine because it was part of the rele-
vant conduct triggering the ten-year statutory manda-
tory minimum. We hold that it was not necessary that
Martinez knew or foresaw that cocaine was in the truck,
as long as he knew he possessed a controlled substance,
and that the mandatory minimum for cocaine was prop-
erly applied.
  Before Apprendi, only those elements contained in
§ 841(a) needed to be proven beyond a reasonable doubt; the
factors in § 841(b) could be found by a preponderance of
the evidence. See United States v. Brough, 243 F.3d
1078, 1079 (7th Cir. 2001), cert. denied, 122 S. Ct. 203
(2001). After Apprendi, any fact that determines a defen-
dant’s maximum sentence under § 841(b) must be proven
beyond a reasonable doubt. See id. (citing United States
v. Nance, 236 F.3d 820 (7th Cir. 2000)). However, in cases
where the mandatory minimum is imposed, Apprendi is
not implicated. See United States v. Williams, 238 F.3d
871, 877 (7th Cir. 2001), cert. denied, 532 U.S. 1073 (2001);
United States v. Smith, 223 F.3d 554, 565-66 (7th Cir.
2000), cert. denied, 122 S. Ct. 2658 (2002); see also Harris
v. United States, 122 S. Ct. 2406, 2414 (2002) (plurality
opinion). His sentence at the statutory minimum for co-



1
  Martinez argues that because he did not foresee the cocaine, the
court was in error in sentencing him for possessing cocaine. But
foreseeability is all that is required under 21 U.S.C. § 846, see
United States v. Herrero, 893 F.2d 1512, 1535 (7th Cir. 1990), the
conspiracy statute. Martinez was charged with possession under
§ 841, however, and § 841 requires actual knowledge.
6                                                No. 00-2569

caine, therefore, does not violate the constitution. We next
determine if the sentence complies with § 841.
   In reading § 841, it is clear that drug type and quantity
are not elements of the offense. Generally, when reading
a statute, “we can presume that its principal paragraph
defines a single crime and its subsections identify sentenc-
ing factors.” Harris, 122 S. Ct. at 2412. Accordingly, we
have repeatedly held that § 841’s elements are contained
in subsection (a); subsection (b) contains the considera-
tions which determine the maximum and minimum sen-
tence. See United States v. Bjorkman, 270 F.3d 482, 491-92
(7th Cir. 2001), cert. denied, 122 S. Ct. 2290 (2002); Brough,
243 F.3d 1079; see also United States v. Duvall, 272 F.3d
825, 830 (7th Cir. 2001). Therefore, while it is clear that
knowledge is an element of § 841, all that its principal
paragraph, § 841(a), requires is that a defendant know-
ingly possess a controlled substance. Drug type is not spec-
ified and therefore is not an element of § 841(a). Further-
more, all that § 841(b) requires is that the offense in-
volve certain types and quantities, not that the defen-
dant know the type and quantity. Accordingly, a defen-
dant may be convicted under § 841(a)(1) even if he does
not know the type or quantity of the controlled substance.
See Bjorkman, 270 F.3d at 490-91; Brough, 243 F.3d at
1080; Duvall, 272 F.3d at 830.
  Finally, under the sentencing guidelines, district courts
may still determine a drug offender’s base level offense
by calculating quantities of drugs that were not specified
in the count of conviction but that the court concludes, by
a preponderance of the evidence, were a part of the de-
fendant’s relevant conduct, as long as that determina-
tion does not result in the imposition of a sentence that
exceeds the statutory maximum penalty for that crime.
United States v. Jones, 245 F.3d 645, 651 (7th Cir. 2001).
Relevant conduct includes all acts and omissions com-
mitted, aided, abetted, counseled, commanded, induced,
No. 00-2569                                                 7

procured, or willfully caused by the defendant. U.S.S.G.
§ 1B1.3(a)(1)(A). Once convicted, it is the defendant’s
knowing possession of a controlled substance, not the
quantity or type, which is at issue for sentencing pur-
poses. At the plea hearing, Judge Stiehl told Martinez
that by pleading guilty under § 841(a)(1), he could be
sentenced based upon the amount and type of controlled
substance that constituted his relevant conduct, and
Martinez knew that Judge Stiehl may have consid-
ered cocaine as part of the relevant conduct. At the sen-
tencing hearing, Judge Stiehl told Martinez:
     [T]he maximum penalty provided by law for the
   offense to which you are pleading is dependent
   upon the amount of controlled substance found to
   constitute your relevant conduct, and the kind of
   controlled substance, . . . the type of controlled
   substance involved here was marijuana, but there
   also may have been cocaine . . . .
     [W]ith respect to the marijuana, if the amount
   of marihuana [sic] that I would find constituted
   your relevant conduct was 100 kilograms but less
   than 1,000 kilograms, . . . then the mandatory
   minimum penalty is 5 years imprisonment to a
   maximum of 40 years . . . . If I would find that there
   was an amount of relevant conduct of powder
   cocaine in your case of just a shade under 6 kilo-
   grams, then there would be a mandatory minimum
   penalty of 10 years imprisonment to a maximum
   of life imprisonment.
  Martinez admitted to possessing 315 kilograms of mari-
juana, rendering him eligible for 5 to 40 years impris-
onment, and Judge Stiehl sentenced him to 10 years,
which was well below the statutory maximum. Martinez’s
knowledge, or lack thereof, of the cocaine has no effect
on his sentence. Likewise, the failure to specify drug
8                                                No. 00-2569

quantity and type in the indictment does not present us
with an Apprendi problem because his sentence was well
below the statutory maximum for possessing with intent
to distribute 315 kilograms of marijuana.


    C. Safety Valve
  Finally, Martinez argues that the district court erred
in denying him a two-level reduction in offense level under
the safety valve provisions codified at 18 U.S.C. § 3553(f)
and repeated in U.S.S.G. § 5C1.2. A defendant is eligible
for the safety valve if he meets five requirements: (1)
he does not have more than one criminal history point
under the sentencing guidelines; (2) he was not violent
in connection with the offense; (3) the offense did not result
in death or serious bodily injury to any person; (4) he
was not an organizer, leader, manager, or supervisor,
as determined under the sentencing guidelines; and (5)
no later than the time of the sentencing hearing, he
has truthfully provided the government all information
and evidence he has concerning the offense or offenses
that were part of the same course of conduct. 18 U.S.C.
§ 3553(f). We review the district court’s failure to im-
pose the safety valve provision for clear error. United
States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000).
Martinez bears the burden of proving he is eligible for
the safety valve provision, see id., and he cannot meet
this burden if the government challenged the truthful-
ness, accuracy, or completeness of his statements and
he produced nothing to persuade the district court that
his disclosures were truthful and complete. See United
States v. Ramirez, 94 F.3d 1095, 1101 (7th Cir. 1996).
  In this case, although the PSR concluded that Martinez
was eligible for the safety valve provision, the government
objected to that finding. The government argued, and
the district court agreed, that Martinez failed to provide
No. 00-2569                                               9

all the information he had. Not only did Martinez’s prof-
fer lack details to aid in the investigation of the source
of the drugs, he recanted his admission to prior drug runs
and refused to give information for fear of putting his
family in jeopardy. Judge Stiehl’s finding that Martinez’s
testimony did not qualify for the reduction is not clearly
erroneous, and therefore, we affirm the denial of the safety
valve provision.


                   III. CONCLUSION
  Because the district court did not err in imposing Marti-
nez’s 120 month sentence, the judgment of the district
court is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-97-C-006—9-3-02
