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.