In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-1234 & 00-1264

United States of America,

Plaintiff-Appellee,

v.

David Carrera and Luis M. Carrera,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 552--Suzanne B. Conlon, Judge.

Argued January 8, 2001--Decided August 3, 2001

 Before Posner, Manion, and Kanne, Circuit

Judges.

 Kanne, Circuit Judge. Luis Carrera sold

cocaine to a confidential informant, and

he brought his brother, David Carrera,

with him to the sale. As a result, Luis

and David Carrera were both charged with

conspiring to possess cocaine with intent

to distribute. Luis ultimately pleaded

guilty to the indictment, and David was

found guilty by a jury. In this

consolidated appeal, David and Luis

Carrera both raise a number of issues

regarding their respective convictions

and sentences. Because we find no errors

requiring reversal, we affirm.

I. History

A. The Arrest of Luis and David Carrera

 On July 27, 1999, Francisco "Cisco" Soto

made arrangements through drug broker

Caesar Salazar to sell five kilograms of

cocaine for $19,500 per kilogram to one

of Salazar’s customers. Unbeknownst to

Soto, Salazar had become a confidential

informant, and his "customer" was

actually Investigator Calderon, an

undercover agent. Because Soto was

unavailable to deliver the cocaine that

night, the parties agreed that Luis would

make the delivery, and that they would
share the responsibility for his fee.

Through a series of recorded telephone

conversations, Salazar and Luis agreed to

meet at the Holiday Inn in Hillside,

Illinois at 9:00 p.m. to complete the

sale. 

 About 8:00 p.m. on July 27, Luis and his

brother David/1 were on their way to

buy a garage door opener for a garage

door they had purchased earlier in the

day when Luis informed David that he

needed to meet a friend before they ran

their errand. David, a construction

worker by trade, knew that his brother

was involved in dealing drugs and did not

ask any questions. At approximately 9

p.m., David and Luis pulled into the

parking lot of the Holiday Inn in a pickup truck. Luis instructed David to tell

Salazar and Calderon, who were waiting in

the parking lot, to come over to the

truck. David then exited the truck and

walked towards the two men. After

speaking briefly with Calderon and

Salazar, David proceeded about thirty

feet from the truck to the front of the

hotel and sat on a brick ledge.

 Upon reaching the truck, the undercover

agent and the informant had a

conversation with Luis, which was

recorded by the agent’s body microphone.

Luis opened his backpack and displayed

five bricks of cocaine. Calderon opened

one of the packages and determined that

the substance was, in fact, cocaine. He

then suggested that Luis’s "friend" count

the money. Luis agreed that David would

count the money, and the men decided that

they would exchange the cocaine for the

money inside the buyer’s hotel room.

Luis, carrying the backpack containing

the cocaine, exited his truck and began

walking toward the hotel with Salazar and

Calderon. As they approached the

entrance, Luis instructed his brother to

join them. David got up and followed the

three men into the hotel. After the men

entered the hotel elevator, agents

arrested Luis and David and pretended to

arrest Salazar. The agents also recovered

the backpack, which was later found to

contain 4,975 grams of cocaine. 

B. The Post-Arrest Statements of

David and Luis Carrera

 After their arrests, Luis and David

Carrera were transported to the Hillside
Police Department and placed in a cell

together. Subsequently, Luis was taken to

a conference room and interviewed by

Investigator Calderon, Investigator

Woytko, and Special Agent Ohlin. Luis

admitted that he had obtained the cocaine

the week before by traveling to Mexico

and arranging for five kilograms to be

delivered to him in Laredo, Texas. He

explained that he had purchased the

cocaine for $10,000 per kilogram and that

he expected to personally make a $35,000

profit on the deal. According to Luis,

the rest of the money was to go to others

involved in the deal, but not to his

brother David. He admitted that David

knew that he sold drugs, but he

maintained that David had only come with

him as a favor to help him count the

money. After Luis gave his statement, one

of the agents prepared a typewritten

statement for Luis to sign. According to

the agents, Luis admitted that the

statement was true but refused to sign it

until David saw it. 

 David was then brought into the room.

Before the agents had a chance to say

anything, David allegedly blurted out,

"what my brother told you guys is true."

The agents proceeded to tell David what

Luis had said, and they gave him the

typewritten statement to read. David

agreed that the typewritten statement was

true, and the agents repeated their

request for Luis to sign it. Luis again

replied that the statement was true, but

he still refused to sign it. The agents

then removed Luis from the room and

proceeded to interview David alone.

During this interview, David admitted

that he knew that his brother sold

cocaine, and that he assumed that Luis

was going to do a drug deal that night.

According to the agents, he also stated

that he had accompanied Luis to the hotel

to help him "take care of business."

C. Proceedings Against Luis and David

Carrera

 On September 22, 1999, David and Luis

Carrera were each charged with one count

of conspiring to possess with intent to

distribute at least five kilograms of

mixtures containing cocaine in violation

of 21 U.S.C. sec. 846 and 18 U.S.C. sec.

2, and one count of possession with

intent to distribute approximately five

kilograms in violation of 21 U.S.C. sec.
846 and 18 U.S.C. sec. 2. 

 On October 26, 1999, one week before

defendants’ joint trial was scheduled to

begin, Luis’s court appointed attorneys,

John A. Meyer and Timothy O’Connor,/2

filed an emergency motion to withdraw as

counsel for Luis. The motion offered two

reasons necessitating withdrawal: Luis

Carrera’s family had retained private

counsel, and the rules of professional

responsibility required withdrawal as a

result of "matters that arose for the

first time on October 25, 1999."

 The court considered the motion the next

day during a pretrial hearing. Luis’s

proposed new counsel was not present.

Meyer explained to the court that Luis

had informed him the previous day that

his family had retained a new attorney,

and that he no longer wished to have

Meyer and O’Connor represent him. Meyer

stated that he had contacted Luis’s

family and was told that the new counsel

would be in court for the start of trial

on November 1. He told the court that he

had advised Luis and Luis’s family that

this was unacceptable, and that the new

attorney needed to be in court that day

to ask the court’s permission to

substitute. Meyer did not know the name

of Luis’s new attorney, and neither he

nor the government had been contacted by

anyone claiming to be Luis’s new

attorney. 

 After listening to this explanation, the

district judge stated, "[a]ll right,

then, I’m going to have to deny your

motion." Meyer then reminded the court

that the motion to withdraw was based not

only on Luis’s desire for new counsel but

also on professional responsibility

considerations. At that point, the

following colloquy took place:

The Court: Well, that presents a

problem. I’ll think about that problem.

But has Mr. Carrera disclosed to you who

this attorney is? 

Mr. Meyer: No he hasn’t Judge. And

perhaps he could, if he knows the name.

Luis Carrera: Your Honor, I spoke to my

attorney and stuff and, ah, things

aren’t--things aren’t working the way,

you know that I--you know that I assume

they would have been and I’m just not

happy with the stuff that is going on. So
I requested, you know, to get some other

attorneys.

The Court: Well,--

Luis Carrera: And my family is looking

into it. I just-- I just told him

yesterday that I didn’t want them to

represent me.

The Court: Well they are appointed by

the court to represent you. And they

weren’t just appointed yesterday, they

were appointed quite some time ago. And

Mr. Meyer has done quite a bit of trial

preparation, we had a pretrial

conference, we’re ready to try the case

on Monday. And absent some kind of

compelling good reason for a substitute

of counsel, I cannot authorize them to

withdraw at this point. If you had

counsel here ready to go to trial, or

would be ready to go to trial by next

week, and somebody who’s admitted to the

bar, qualified to do so, of course I

would grant the motion. But that’s not

the case. So the motion is denied. 

Luis Carrera: Well, your honor, like I

said, I just advised them yesterday that

I was going to have an attorney come to

speak to me today. But, you know, I was

rushed over here. I was barely arraigned

less than a month ago, I don’t know if

you can take that into consideration. 

The Court: . . . The motion is

denied. 

Tr. of Emergency Mot. Hr’g. at 5-6. 

 The joint trial of Luis and David began

six days later, on November 2, 1999, with

Meyer and O’Connor serving as counsel for

Luis. On the morning of the first day of

trial, Victor Ciardelli, the attorney

retained by Luis’s family, attempted to

file some sort of emergency motion to

postpone the trial. The exact sequence of

events is a bit unclear, but Ciardelli

was not permitted to enter his appearance

on behalf of Luis at that time. The court

proceeded with the trial, and the

government completed its case-in-chief

that afternoon. The next morning,

Ciardelli informed the court that he had

spoken to Luis over the weekend, and that

Luis wished to change his plea to guilty.

The district court allowed Ciardelli to

enter his appearance as additional
counsel for the purposes of the plea

hearing. Warning Luis that "there are no

economies to either the government or to

the Court . . . for a guilty plea at this

stage," the district court proceeded to

conduct the guilty plea hearing. 

 The district court proceeded with

David’s trial, and it ended in a mistrial

when the jury was unable to reach a

verdict on either count. A few days

later, David was tried again, and this

time, the jury found him guilty on both

counts. 

D. Sentencing

 On January 20, 2000, the district court

sentenced Luis Carrera to 121 months

imprisonment, four years supervised

release, and a $2,000 fine. David Carrera

was sentenced to 78 months imprisonment

and four years supervised release. In

imposing these sentences, the district

court found that Luis qualified for a

two-level enhancement under United States

Sentencing Guidelines (U.S.S.G.) section

3B1.1(c) for playing a leadership role in

the offense and did not qualify for an

acceptance of responsibility reduction

under U.S.S.G. section 3E1.1. Similarly,

the district court found that David

qualified for an upward enhancement for

obstruction of justice under U.S.S.G.

section 3C1.1. Both defendants timely

filed notices of appeal.

 On appeal, Luis and David each raise a

number of issues. Luis argues that the

district court: 1) violated his right to

counsel of choice by denying a

continuance in order to allow him to

obtain new counsel; 2) improperly added

two levels to his offense level for

playing a leadership role in the offense;

and 3) inappropriately denied a reduction

for acceptance of responsibility. David

contends that the district court erred

by: 1) admitting the contents of his

wallet at the time of arrest into

evidence; 2) instructing the jury that he

could be guilty of conspiracy to

distribute cocaine without knowing the

type or quantity of substance that was to

be distributed; and 3) increasing his

offense level for obstruction of justice

without making the required findings.

Both defendants argue that the district

court committed plain error in imposing

four years of supervised release. We will
address each of these claims below,

beginning with the claims of Luis

Carrera. 

II. Analysis

A. Luis Carrera

1. Denial of Counsel of Choice

 Luis first claims that the district

court erred by arbitrarily refusing to

postpone his trial in order to allow him

the opportunity to retain his counsel of

choice. Before proceeding to Luis’s

arguments, we must address the proper

standard of review in this case. Luis

claims that the district court

erroneously denied him a brief

continuance to secure his attorney of

choice. We find this assertion to be

disingenuous because neither Luis nor his

counsel ever moved for a continuance or

asked the district judge to postpone the

trial./3 Therefore, because no motion

for a continuance was made, our review is

for plain error only. See United States

v. Olano, 507 U.S. 725, 732, 113 S. Ct.

1770, 123 L. Ed. 2d 508 (1993).

 Even under a more stringent standard of

review, however, it is clear that the

district court did not violate Luis’s

right to counsel of choice by deciding to

proceed with his trial. The right to

counsel of one’s choice encompassed with

in the Sixth Amendment is not absolute.

See United States v. Rasmussen, 881 F.2d

395, 401 (7th Cir. 1989). Although a

person has the right to be represented by

the counsel of his choice, "[t]his right

is not absolute, but qualified, and must

be balanced against the requirements of

the fair and proper administration of

justice." United States v. Micke, 859

F.2d 473, 480 (7th Cir. 1988). Therefore,

while the denial of a continuance may

infringe upon the defendant’s right to

counsel of choice, see United States v.

Santos, 201 F.3d 953, 958 (7th Cir.

2000), "only an unreasoning and arbitrary

insistence upon expeditiousness in the

face of a justifiable request for delay

violates the right to the assistance of

counsel." Morris v. Slappy, 461 U.S. 1,

11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610

(1983) (internal quotation omitted). To

determine whether the district court

erred in denying a continuance, we "must

consider both the circumstances of the
ruling and the reasons given by the judge

for it." Santos, 201 F.3d at 958. 

 Luis relies on our decision in Santos

for his argument that the district court

erred in proceeding to trial. In Santos,

defendant’s counsel was unavailable for

the trial date set by the district court,

and the district court refused to grant a

continuance. 201 F.3d at 958. In finding

that the district court erred, we said:

 The salient circumstances here are that

the case is not old, the indictment

having come down only two and a half

months before the scheduled trial date .

. . the government did not oppose the

continuance; and the judge had no

scheduling conflict that would have led

to a further delay had he granted the

continuance. Nothing in these

circumstances indicated that the grant

would pose a hardship to anyone. 

Id. Luis argues that the factors we found

persuasive in Santos are present and even

more compelling in this case. He claims

that it is clear that the district court

did not properly weigh his right to

counsel against concerns of judicial

administration because his case was not

old, the government did not oppose the

continuance, and the judge had no

scheduling conflict. While we agree that

Luis’s case was not old, Luis ignores the

fact that, because his attorney never

moved for a continuance, we do not know

if the government would have opposed the

motion, if the judge had a scheduling

conflict, or if a continuance would have

caused hardship to any of the parties. 

 Furthermore, Santos is also

distinguishable because there was no

suggestion that the defendant in that

case was invoking her right to counsel of

choice in order to delay the trial. See

id. at 959. Here, Luis did not timely

inform his attorneys that he wanted to

replace them, he waited until the trial

was a week away. At that point, O’Connor

and Meyer had been representing Luis for

over a month. The untimely nature of

Luis’s motion coupled with its close

proximity to trial as well as the fact

that Luis was unable to name his new

counsel made it reasonable for the

district court to question whether Luis’s

motion was an attempt to delay the trial.

The right to counsel of one’s choice
"does not give an accused the power to

manipulate his choice of counsel to delay

the orderly progress of his case." United

States ex rel. Kleba v. McGinnis, 796

F.2d 947, 952 (7th Cir. 1986) (internal

quotation omitted).

 Based on the surrounding circumstances,

we do not think that the district court

arbitrarily decided to proceed to trial.

The fact that the district court

questioned Luis’s attorney as well as

Luis himself in an attempt to discover

whether a new attorney had in fact been

retained demonstrates the district

court’s recognition of Luis’s right to

counsel of his choice. The district judge

also acknowledged this right when she

specifically stated, "[i]f you had

counsel here ready to go to trial, or

would be ready to go to trial by next

week, and somebody who’s admitted to the

bar, qualified to do so, of course I

would grant the motion." In addition,

when Luis’s new attorney did show up on

the second day of trial, the district

court permitted him to enter his

appearance for the purpose of changing

Luis’s plea. Therefore, there was no

plain error in the district court’s

decision to proceed with Luis’s trial as

scheduled.

2. Leadership Role Enhancement

 Luis next argues that the district court

erroneously concluded that he played a

leadership role in the offense and

therefore qualified for a two-level

upward enhancement under U.S.S.G. section

3B1.1(c). We review the district court’s

decision to make an upward adjustment

based on the defendant’s role in the

offense for clear error. See United

States v. Lemmons, 230 F.3d 263, 265 (7th

Cir. 2000), cert. denied, 121 S. Ct. 824,

148 L. Ed. 2d 707 (2001). A finding that

a defendant played a leadership role "is

clearly erroneous ’only if, after

reviewing the entire evidence, we are

left with the definite and firm

conviction that a mistake has been committed.’"

United States v. Matthews, 222 F.3d 305,

307 (7th Cir. 2000), cert. denied, 121 S.

Ct. 500, 148 L. Ed. 2d 470 (2000)

(quoting United States v. Granado, 72

F.3d 1287, 1290 (7th Cir. 1995)). If the

fact finder decides between two

permissible interpretations of the

evidence, we will not find the decision

to be clearly erroneous. See id.
 The Application Notes to section 3B1.1

instruct the sentencing judge to consider

seven factors in order to determine if an

aggravating role enhancement is

warranted. See U.S. Sentencing Guidelines

Manual sec. 3B1.1, cmt n.4 (1998). These

factors include: 

the exercise of decision making

authority, the nature of participation in

the commission of the offense, the

recruitment of accomplices, the claimed

right to a larger share of the fruits of

the crime, the degree of participation in

planning or organizing the offense, the

nature and scope of the illegal activity,

and the degree of control and authority

exercised over others.

Id. In adopting the Pre-Sentence

Investigation Report’s (PSR)

recommendation of a two-level increase to

Luis’s base offense level for playing a

leadership role, it is clear that the

district court focused on several of the

factors listed above. Specifically, the

district court found that Luis involved

his brother in the offense, had decision

making authority, expected a larger share

of the profits, and obtained the cocaine

himself by traveling to Mexico. 

 Luis takes issue with the district

court’s findings. First and foremost, he

argues, there is no evidence that he had

"the sort of real and direct influence

[over David] . . . that the enhancement

was designed to punish." United States v.

Mankiewicz, 122 F.3d 399, 406 (7th Cir.

1997) (internal quotation omitted).

Second, he claims that he was simply an

average participant in a scheme

orchestrated by Soto and did not have any

realistic expectation of obtaining a

larger share of profit from the deal. To

support this theory, Luis points to a

recorded conversation between Soto and

Salazar in which Soto states that they

wouldn’t have to give Luis "that much" in

order to get him to make the delivery.

Luis also submits that there is no

evidence that he had any decision making

authority beyond the ability to determine

the time of the transaction.

 In spite of Luis’s argument that he was

nothing more than Soto’s "glorified

mule," we cannot find that the district

court clearly erred in finding that Luis

played a leadership role in the offense.

Although Luis argues that there is no
evidence that he did or could have

exercised control over his brother, an

upward adjustment under section 3B1.1(c)

does not require an explicit finding that

the defendant exercised control, "so long

as the criminal activity involves more

than one participant and the defendant

played a coordinating or organizing

role." United States v. Bush, 79 F.3d 64,

67 (7th Cir. 1996) (internal quotation

omitted); see also United States v.

Billingsley, 115 F.3d 458, 465 (7th Cir.

1997). As we have stated, "the overall

focus under sec. 3B1.1 is relative

responsibility within a criminal

organization." Bush, 79 F.3d at 67. It is

evident from the record that Luis

possessed sufficient responsibility to

support a leadership role enhancement

from the fact that he obtained the drugs,

set up the time and place for the

delivery, recruited his brother as an

accomplice, and claimed rights to $17,000

out of $19,500 per kilogram of cocaine.

Therefore, we uphold the district court’s

determination that Luis qualified for an

upward enhancement under section

3B1.1(c). 

3. Acceptance of Responsibility

Reduction

 Luis Carrera next contests the district

court’s refusal to award a two-level

reduction under U.S.S.G. section 3E1.1.

Section 3E1.1 provides that a defendant

is entitled to a two-level reduction in

base offense level if he clearly

demonstrates acceptance of responsibility

for his actions. See U.S. Sentencing

Guidelines Manual sec. 3E1.1 (1998). Of

course, a defendant is not entitled to an

acceptance of responsibility reduction as

a matter of right simply because he

pleaded guilty. See United States v.

Morris, 76 F.3d 171, 175-76 (7th Cir.

1996). In order to establish entitlement

to this reduction, a defendant must show

by a preponderance of the evidence that

he: "(1) clearly recognized and accepted

responsibility for his conduct; (2)

timely notified authorities of his

intention to enter a plea of guilty; and

(3) truthfully admitted the conduct

comprising the offense of conviction and

admitted . . . the relevant conduct as it

relates to the offense of conviction."

United States v. Sierra, 188 F.3d 798,

804 (7th Cir. 1999). We will affirm the

district court’s findings so long as they
are not clearly erroneous. See United

States v. Galbraith, 200 F.3d 1006, 1015

(7th Cir. 2000). 

 Luis claims that the district court

based its denial of the reduction on the

fact that he did not plead guilty until

the second day of trial, and he submits

that the delayed plea was a result of the

district court’s erroneous refusal to

postpone the trial to allow his new

attorney to enter his appearance.

According to Luis, if a continuance had

been granted at the pre-trial hearing, or

even if Ciardelli had been allowed to

enter his appearance on the morning of

the first day of trial, he would have

pleaded guilty before the jury was

empaneled and thus been entitled to the

reduction.

 As we explained in Part II.A.1 above, it

was not improper for the district court

to proceed to trial. Moreover, even if

the district court had allowed Ciardelli

to enter his appearance the morning that

the trial began, a denial of the

reduction would still have been

justified. See Sierra, 188 F.3d at 805

(upholding a determination that the

defendant did not accept responsibility

because he pleaded guilty on the last

business day before the trial). Second,

although lack of timeliness was certainly

one of the district court’s reasons for

denying the reduction, it is clear that

the district court also found that Luis’s

admissions were not trustworthy. During

sentencing, the district judge explained

her rationale for denying the acceptance

of responsibility reduction as follows: 

[E]ven if I had permitted Mr. Ciardelli

to disrupt the trial, send the jury back

down to the jury room . . . I would not

have viewed that as timely acceptance of

responsibility, even under that scenario.

So, in terms of timeliness, I think the

record itself refutes entitlement to

consideration for reduction for

acceptance of responsibility. In terms of

the contradictory statements Mr. Luis

Carrera has made about his own conduct, I

find that there is a lack of

trustworthiness in his admissions, his

limited admissions, and his changing

admissions. So I find that the

presentence report’s omission of a

reduction for accepting responsibility is

a valid one, and I cannot find by a
preponderance of the evidence that Mr.

Luis Carrera accepted responsibility.

Tr. of Luis Carrera’s Sentencing Hr’g. at

8. 

 Although Luis acknowledges that the

district court did find his admissions to

be untrustworthy, he claims that we

should remand for resentencing because it

is not clear whether the district court

would have denied the acceptance of

responsibility reduction based solely on

its finding that Luis was not completely

truthful. We disagree. Even if the

district court incorrectly determined

that Luis’s acceptance of responsibility

was untimely, its finding that Luis was

not completely honest in his admissions

is an appropriate independent

justification for denying the reduction.

See United States v. Kamoga, 177 F.3d

617, 622 (7th Cir. 1999), cert. denied,

528 U.S. 942, 120 S. Ct. 355, 145 L. Ed.

2d 277 (1999) (holding that a defendant

is not entitled to an acceptance of

responsibility reduction if he fails to

provide a "truthful and complete"

admission); see also United States v.

Purchess, 107 F.3d 1261, 1269 (7th Cir.

1997) (affirming sentence where district

court’s "denial of the acceptance of

responsibility reduction [was] well

grounded in a permissible factor").

Therefore, we uphold the district court’s

finding that Luis was not entitled to a

two-level reduction for acceptance of

responsibility. 

B. David Carrera

1. Admission of Wallet Contents

 David contends that the district court

erred in admitting into evidence the

contents of his wallet at the time of his

arrest, thereby allowing the government

to unfairly argue on rebuttal that David

must be a drug dealer because he had

unexplained wealth. At trial, David’s

attorney objected to the admission of the

contents of the wallet, but did not

object to the government’s statements

during rebuttal which referred to those

contents. Therefore, our review of the

district court’s evidentiary rulings is

for abuse of discretion, see United

States v. Gibson, 170 F.3d 673, 680 (7th

Cir. 1999), but our review of the

government’s comments during rebuttal is
for plain error only, see United States

v. Anderson, 61 F.3d 1290, 1299 (7th Cir.

1995).

 Over David’s objection, the contents of

his wallet at the time of his arrest--

which included $928 in cash as well as

receipts for purchases totaling

approximately $2500--were admitted into

evidence during the government’s direct

examination of one of the arresting

officers, Investigator Woytko. Both

Investigator Woytko and David testified

briefly as to the amount of cash found in

David’s wallet at the time of arrest, but

neither witness discussed the receipts.

Then, during rebuttal, the prosecutor

made the following statement: 

And again, this money . . . this $928

that the defendant has in his pocket when

he’s arrested. Not bad for a guy who is

unemployed, who’s been unemployed for

quite some time. In addition, if you look

at those receipts that were found in

there, you will find another 25-2600

dollars’ worth of receipts in

expenditures that the defendant did

within the two weeks preceding that drug

deal. Not bad for a guy who is

unemployed, has no money. 

Tr. of Trial of David Carrera at 294.

David argues that the admission of the

wallet’s contents--which led to

thestatement about unexplained wealth in

rebuttal--was erroneous because the

evidence was irrelevant and confusing.

 We disagree with David’s contention that

the contents of his wallet were

irrelevant to the jury’s determination of

his guilt. "Expensive trips, gambling,

and other instances of free spending and

high living may be pertinent in

crimesinvolving a motive of enrichment."

United States v. Kwitek, 467 F.2d 1222,

1225 (7th Cir. 1972). Similarly, evidence

of unexplained wealth is admissible in

drug cases as long as: (1) the evidence

presented creates an inference that the

defendant was involved in drug

trafficking; (2) the unexplained wealth

was acquired during the period in which

the drug crime allegedly occurred; and

(3) the government presents other

evidence to support the charge, including

evidence that the income was not obtained

through legitimate means. See United

States v. Penny, 60 F.3d 1257, 1263 (7th
Cir. 1995).

 David contends that the government

failed to show any evidence that the

money was not obtained through legitimate

means. He claims that, although the

government argued in rebuttal that David

was unemployed at the time of the drug

deal, no evidence was presented to that

effect. According to David, the

government based its claim that he was

unemployed at the time of the drug

transaction on a "misunderstanding" of

his trial testimony. On direct

examination, David was asked whether he

was working on the day of his arrest and

he replied no. When asked why, he stated,

"cause I was off--I was off because the

doctor told me to be off because I had a

. . . I was sick, really." Then, on

cross, the following exchange took place:

Q: Mr. Carrera, when you were arrested

you had a lot of money on you, didn’t

you?

A: I don’t know. Like how much you say

is a lot of money?

Q: Like $928.28, you consider that a lot

of money? 

A: Yeah, it’s quite--it’s some, yes.

Q: You were not working at the time you

were arrested, were you?

A: That’s correct. 

If David’s first answer was the only

evidence that he was unemployed at the

time of his arrest, he might have a

stronger claim. Given the second exchange

however, we can not say that the district

court abused its discretion in finding

that the government had presented at

least some evidence that the unexplained

wealth was not derived from legitimate

means. 

 We also reject David’s claim that it was

improper for the government to argue in

closing that David had unexplained wealth

because $900 in cash and receipts for a

few luxury items do not suggest "wealth."

How much money is "wealth" is an issue

that the jury is well-equipped to

evaluate. Moreover, even if the

government’s claim that David was

unemployed at the time of the transaction
was incorrect, the government’s

statements did not "infect the trial with

unfairness to such a degree as to make

the resulting conviction a denial of due

process." United States v. McClinton, 135

F.3d 1178, 1188 (7th Cir. 1998) (internal

quotation omitted). So long as "the jury

has evidence in its possession and is

equipped to ascertain whether the

government’s characterization is

accurate, a statement characterizing that

evidence is not improper." United States

v. Velez, 46 F.3d 688, 692 (7th Cir.

1995). 

2. Jury Instructions 

 David next argues that his conviction

must be reversed because the district

court committed plain error by

instructing the jury that the government

was not required to prove that the

defendant knew either the exact nature or

quantity of the controlled substance

involved in the offense. He argues that

the Supreme Court’s recent decision

inApprendi v. New Jersey, 530 U.S. 466,

490, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000), requires the government to submit

to the jury the question of whether David

knew that the substance involved in the

offense was cocaine. David did not

challenge the jury instructions below,

therefore our review is for plain error.

See United States v. Jones, 245 F.3d 645,

648 (7th Cir. 2001).

 David’s argument that Apprendi required

the government to prove beyond a

reasonable doubt that he knew the

quantity and type of controlled substance

involved in the conspiracy falls short. A

defendant may be convicted of a violation

of 21 U.S.C. sec. 846 without knowing the

exact type of drug involved. See United

States v. Sheppard, 219 F.3d 766, 770

(8th Cir. 2000), cert. denied, 121 S. Ct.

1208, 149 L. Ed. 2d 121 (2001); United

States v. Osmani, 20 F.3d 266, 268 & n.5

(7th Cir. 1994). The government need only

prove that the defendant was aware that

some controlled substance was involved.

See United States v. Fragoso, 978 F.2d

896, 902 (5th Cir. 1992). Apprendi does

not change this rule. Apprendi requires

that "[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 a

jury and proved beyond a reasonable
doubt." 530 U.S. at 490. With respect to

sec. 846, the defendant’s knowledge of

the quantity and type of controlled

substance is not a fact that may be used

to increase the penalty beyond the

statutory maximum--only the actual

quantity and type of controlled substance

may increase the statutory maximum. Here,

the jury was required to find beyond a

reasonable doubt that David conspired to

commit an offense involving a controlled

substance. Moreover, although the jury

was not required to find the quantity of

cocaine involved, David’s sentence of 78

months was well within the statutory

maximum of 20 years provided by 21 U.S.C.

sec. 841(b)(1)(C). See Jones, 245 F.3d at

649. (explaining that, for offenses

involving cocaine, sec. 841(b)(1)(C)

determines the statutory maximum if no

drug amount is charged in the indictment

and submitted to the jury). Therefore,

there is no Apprendi error. See Talbott

v. Indiana, 226 F.3d 866, 869 (7th Cir.

2000) ("[W]hen a drug dealer is sentenced

to less than 20 years imprisonment--the

limit under 21 U.S.C. sec. 841(b) (1)(C)-

- . . . Apprendi is irrelevant."). 

3. Obstruction of Justice Enhancement

 David Carrera next challenges the

specificity of the district court’s

findings underlying its decision to apply

a two-level obstruction of justice

enhancement for perjury. Perjury is an

appropriate basis for an obstruction

enhancement under U.S.S.G. section 3C1.1;

however, "not every instance of false

testimony under oath warrants the

enhancement." United States v. Gage, 183

F.3d 711, 715 (7th Cir. 1999). Instead,

the enhancement is limited to situations

in which "a defendant ’gives false

testimony concerning a material matter

with the willful intent to provide false

testimony, rather than as a result of

confusion, mistake, or faulty memory.’"

United States v. Turner, 203 F.3d 1010,

1020 (7th Cir. 2000) (quoting United

States v. Dunnigan, 507 U.S. 87, 94, 113

S. Ct. 1111, 122 L. Ed. 2d 445 (1993)).

Standing alone, the fact that a defendant

denied his guilt at trial and then was

found guilty is not enough to merit a

section 3C1.1 enhancement. See United

States v. Webster, 125 F.3d 1024, 1037

(7th Cir. 1997). To properly support an

enhancement for obstruction of justice,

the district court must make independent
findings as to all of the elements of

perjury: falsity, willfulness, and

materiality. See Turner, 203 F.3d at

1020. We review de novo whether the

district court made the appropriate

findings to support an obstruction of

justice enhancement. See Gage, 183 F.3d

at 715. The district court’s underlying

findings of fact are reviewed for clear

error. See id.

 David claims that his case should be

remanded for resentencing because the

district court failed to make sufficient

findings to support the imposed

enhancement for obstruction of justice.

At David’s sentencing hearing, the

district court explained: 

Well, I do find by a preponderance of the

evidence that the defendant, David

Carrera, testified untruthfully at his

trials. And I base this on the total

record before me during those two trials.

Mr. Carrera’s own prior post-arrest

statements, which were inherently more

reliable than his trial testimony where

he basically denied the matters he

affirmed during his post-arrest

statement. So I find that he was

untruthful by a preponderance of the

evidence.

Tr. of David Carrera’s Sentencing Hr’g.

at 11. David argues that the district

court’s findings were insufficient

because they did not refer to any

specific answer that was false and that

neither the above explanation nor the PSR

adequately found the elements of perjury

necessary to support the enhancement. 

 We disagree. David’s contention that the

district court utterly failed to identify

the source of the perjured testimony is

belied by the record. Although the

district court did not identify exact

statements that were perjurious, the dis

trict court did specifically point to

testimony that conflicted with the

agents’ account of David’s post-arrest

statements-- his denial of the fact that

he knew his brother was a drug dealer and

that he was going along to help count the

money--as the source of its belief that

David testified untruthfully. Nor are we

convinced by David’s argument that the

district court’s findings of the elements

of perjury were insufficient.
 In United States v. Dunnigan, 507 U.S.

87, 113 S. Ct. 1111, 122 L. Ed. 2d 445

(1993), the Supreme Court stated that "it

is preferable for a district court to

address each element of the alleged

perjury in a separate and clear finding,"

but also noted that a section 3C1.1

enhancement that did not specifically

address each element could be upheld on

the condition that "the [district] court

makes a finding of an obstruction of, or

impediment to, justice that encompasses

all of the factual predicates for a

finding of perjury." Id. at 95. David is

correct that the district court in his

case did not take the preferred route and

indicate its findings with respect to

each element of perjury. We believe,

however, that the district court’s

findings did encompass falsity,

willfulness, and materiality.

 It is clear that the district court

found that David’s testimony at trial

contradicted the arresting officers’

account of his earlier post-arrest

statements, and that the officers’

account was inherently more reliable. In

United States v. Turner, we upheld the

district court’s application of a section

3C1.1 enhancement based on its finding

that the defendant’s "testimony was so

diametrically opposed to that of the

other witnesses that one version had to

be a lie." 203 F.3d at 1020. Like the

defendant in Turner, David’s trial

testimony was irreconcilable with the

testimony of other witnesses. Nor has

David ever claimed that the inconsistent

testimony was the result of confusion,

mistake, or faulty memory. Moreover,

there can be no doubt that the district

court considered David’s knowledge of his

brother’s drug dealing activities to be

material.

 Therefore, although it is close, we find

that the district court’s findings do

encompass all of the required elements of

perjury. Because we do not believe that

the district court "mechanically

appl[ied] the enhancement merely because

the accused took the stand and was found

guilty," see United States v. Brimley,

148 F.3d 819, 824 (7th Cir. 1998)

(internal quotation omitted), we uphold

the district court’s application of a

two-level enhancement for obstruction of

justice.
C. Supervised Release

 Both David and Luis Carrera rely on

Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348, 147 L. Ed. 2d 434 (2000), to

support their argument that they are

entitled to resentencing--or at least a

one-year reduction in their terms of

supervised release--because the district

court imposed four years of supervised

release on each defendant under the

erroneous belief that four years was the

proper mandatory minimum term. Neither

defendant objected to the length of

supervised release imposed at sentencing;

therefore, our review is for plain error.

See United States v. Robinson, 250 F.3d

527, 529 (7th Cir. 2001). 

 Both defendants received terms of

supervised release within the maximum

term authorized by 21 U.S.C. sec. 841(b)

(1)(C), which applies to defendants who

are found guilty of a drug offense

involving any quantity of a Schedule II

controlled substance. See United States

v. Shorty, 159 F.3d 312, 315 & n.6 (7th

Cir. 1999), cert. denied, 526 U.S. 1147,

119 S. Ct. 2024, 143 L. Ed. 2d 1035

(1999) (finding that sec. 841(b) (1)(C)

establishes a minimum of three years of

supervised release and a maximum of

life). Nonetheless, defendants challenge

the imposed term of four years of

supervised release, arguing that the

district court erred in sentencing them

under sec. 841(b)(1)(B), which applies to

quantities of cocaine exceeding 500

grams. Section 841(b)(1)(B) provides for

"a term of supervised release of at least

4 years." According to the Carreras, the

district court’s finding that the

offenses involved over 500 grams of

cocaine violated the rule announced by

the Supreme Court in Apprendi because it

resulted in a mandatory minimum term of

supervised release. Even if we were not

proceeding under a plain error standard,

this claim fails. We have made it quite

clear that Apprendi does not "govern[ ]

proof of events that determine the

minimum lawful sentence." United States

v. Hill, 252 F.3d 919, 921 (7th Cir.

2001); see also United States v. Rodgers,

245 F.3d 961, 966-68 (7th Cir. 2001)

("Indeed, since Apprendi was decided, we

have specifically rejected the notion

that a factual determination which has

the effect of triggering a mandatory

minimum sentence constitutes an element
of the offense that must be submitted to

the jury."). We therefore reject the

defendants’ challenge to the imposed

terms of supervised release.

III. Conclusion

 For the foregoing reasons, we AFFIRM the

convictions and sentences of Luis and

David Carrera.

FOOTNOTES

/1 To avoid confusion, we will refer to Luis and

David Carrera by their first names.

/2 Luis’s first court appointed attorney, Latricia

Kenyatta Tatum, withdrew as counsel at Luis’s

preliminary hearing and was replaced by retained

counsel Jack P. Rimland. Rimland was then replaced by Meyer at Luis’s arraignment, on September 22, 1999.

/3 Luis claims his statements to the district court

should be construed as a request for a continuance because the district judge spoke directly to

him regarding his proposed change of counsel. We

might be inclined to accept this argument if Luis

had indicated to the district court that more

time would be helpful in securing his counsel of

choice, but Luis did little more than reiterate

his request for his current attorneys not to

represent him at trial.