In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 02-3563, 02-3564 & 02-3842

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Cross-Appellant,

v.

GREGORIO MACEDO,

Defendant-Appellant,

and

VICTOR HUGO CONTRERAS,

Defendant-Appellant, Cross-Appellee.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CR 57—David H. Coar, Judge.

____________

ARGUED OCTOBER 22, 2003—DECIDED JUNE 15, 2004

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Gregorio Macedo and Victor

Hugo Contreras were convicted of various drug offenses.

Defendant Macedo alleges several violations of Apprendi v.
2 Nos. 02-3563, 02-3564 & 02-3842

1 While this was Mendez’s first smuggling trip to the United

States, it was Maldonado’s third. On the two prior occasions,

however, Maldonado traveled alone. His first trip occurred on

November 3, 2000. Upon arrival at O’Hare, Maldonado was met

by “Hugo,” whom he later identified in court as Victor Hugo

(continued...)

New Jersey, 530 U.S. 466 (2000), which he contends render

his convictions and sentence infirm. He also argues that the

government lacked sufficient evidence to support his

convictions. Defendant Contreras argues that evidence of

prior bad acts was improperly admitted in violation of Rule

404(b) of the Federal Rules of Evidence. The government

also appeals the district court’s decision to grant defendant

Contreras a one-point downward departure based on his

alien status. We find the defendants’ arguments wanting

and therefore affirm both convictions as well as defendant

Macedo’s sentence. However, because we find that the

district court erred in its decision to downward depart, we

must remand defendant Contreras for resentencing.

I. THE TRIAL

The following facts were presented at trial. On January

20, 2001, Francisco Maldonado Herrera (Maldonado) and

Ricardo Mendez, Mexican nationals, traveled from Morelia,

Mexico to O’Hare International Airport in Chicago, Illinois

with over 400 grams of methamphetamine in the soles of

their shoes. Months prior to their trip, Maldonado and

Mendez were both approached in Mexico by a man known

only as “Rene” and asked if they were willing to serve as

drug carriers to the United States for $1500 per trip. Rene

told the men that once in the United States, they would be

met by a man named “Hugo” at the airport who would exchange the shoes containing the methamphetamine for new

ones and purchase each a return ticket to Mexico.1
Nos. 02-3563, 02-3564 & 02-3842 3

(...continued)

Contreras. Contreras and Maldonado drove from the airport to

Contreras’s home where they exchanged the drug shoes for new

ones. The men then returned to the airport and Contreras purchased Maldonado’s return ticket to Mexico. This scheme occurred

once more on November 17, 2000. Maldonado’s testimony was

corroborated by the Customs Record Log, which showed that he

previously entered O’Hare Airport on November 3, 2000, and

November 17, 2000.

2 Both defendants were residing illegally in the United States.

Maldonado was stopped by United States Customs

Inspector Carlos Torres who noticed that he was wearing

brand-new shoes which appeared too large for his feet. After

receiving several evasive responses to his inquiries, Inspector Torres asked to see Maldonado’s shoes where he found

the methamphetamine. Maldonado agreed to cooperate with

the government by wearing a wire to record conversations

between the defendants and Mendez. He also agreed to call

Mexico in an effort to locate Contreras and Macedo in

Chicago.2

 Maldonado was able to reach an associate of

Rene’s who gave him Contreras’s cellular phone number as

well as Macedo’s home telephone number. Maldonado then

phoned Contreras who agreed to meet him in the airport.

All of these phone conversations were recorded by government officials. 

While Mendez made it through customs, his contact,

“Hugo,” was not at the airport to meet him. During his wait,

he made several phone calls to Mexico attempting to locate

his contact. He was able to reach family members in Mexico

who gave him two phone numbers as contacts. His family

members received the information from Rene. The numbers

were later identified as Gregorio Macedo’s home telephone

number and cellular phone number. 

After several tries, Mendez was able to make contact with
4 Nos. 02-3563, 02-3564 & 02-3842

the defendants who met him at a diner near O’Hare

Airport. The three men then drove to a shoe store where

Macedo purchased a replacement pair of shoes for Mendez’s

return. After the trip to the shoe store, the three men

checked into a motel near the airport. According to Mendez,

the motel bill was also paid for by Macedo. The shoes

containing the methamphetamine were left in the motel

room, and after receiving Maldonado’s call, they returned to

the airport. The four men met in Terminal 5 and began

discussing Maldonado’s experience with the customs agent.

This conversation was recorded. Shortly thereafter, all four

men were arrested by authorities.

Following the arrest, the government recovered the shoes

from the motel room which contained 436.9 grams of

methamphetamine (found to be 91% pure with an approximate street value of $175,000). The shoes seized from

Maldonado at the airport contained 441.9 grams of methamphetamine (also 91% pure with a parallel street value).

After a search of Contreras’s car, the government also found

the key to the motel room rented by Macedo in the glove

compartment. 

Mendez and Maldonado pleaded guilty and agreed to

testify against Macedo and Contreras at trial. In addition

to the testimony previously discussed, the evidence admitted during trial included: the testimony of the two coconspirators, various customs agents, a Drug Enforcement

Agent, and several police officers; the shoes seized at the

airport and the motel room containing methamphetamine;

transcripts of recorded conversations between conspiracy

participants in Mexico and Maldonado; the phone numbers

communicated to Maldonado and Mendez; the defendants’

cellular and home phone records; and the motel room key

recovered from defendant Contreras’s vehicle.

During the trial, the district court also allowed Officer

Daniel Vasquez to testify concerning two earlier encounters
Nos. 02-3563, 02-3564 & 02-3842 5

3 Before this testimony, the district court instructed the jury that

the information conveyed by Officer Vasquez was solely to be used

as evidence on the question of intent.

with defendant Contreras.3 Officer Vasquez testified that in

1992 he was working as an undercover agent with the

Narcotics Covert Investigation team of the San Jose,

California Police Department and made two undercover

purchases of cocaine from a person known as “Gerardo.”

The first purchase occurred on January 27, 1992, which

involved the use of a “special employee” (SE), or informant,

to call an individual to set up a drug buy for the undercover

agent. The SE contacted Gerardo and stated that a friend

wanted to purchase approximately one half of an ounce of

cocaine. Gerardo then met the SE and Officer Vasquez at a

local restaurant, where Gerardo got into the back seat of

Officer Vasquez’s vehicle, and handed the SE a plastic

package surrounded by duct tape. Officer Vasquez paid

Gerardo $250 for the package which contained 14.87 grams

of cocaine. On March 2, 1992, Officer Vasquez contacted

Gerardo once again and purchased 27.61 grams of cocaine

for $500. Officer Vasquez attempted to make a third

purchase from Gerardo but was unable to contact him. He

was able to identify Gerardo as Victor Hugo Contreras

shortly after the purchases by subpoenaing the phone

records for the contact number he was given by the SE.

Officer Vasquez was also able to identify Gerardo as

Contreras in the courtroom.

On October 12, 2001, after an eight-day trial, Gregorio

Macedo was found guilty of three offenses: (1) conspiracy to

import 500 grams or more of methamphetamine or mixtures

thereof, in violation of 21 U.S.C. § 963; (2) possession with

intent to distribute between 50 and 500 grams of methamphetamine or mixtures thereof, in violation of 21 U.S.C.

§ 841(a)(1); and (3) attempted possession of between 50 and

500 grams of methamphetamine or mixtures thereof, in
6 Nos. 02-3563, 02-3564 & 02-3842

4 Defendant Contreras’s original guideline range of 235 to 293

months was thus reduced to 210 to 262 months and resulted in a

sentence of 210 months. The government does not appeal the

district court’s decision to grant defendant Macedo a one-point

downward departure, though the trial court applied the same

reasoning for each defendant.

violation of 21 U.S.C. § 846. His co-defendant, Victor Hugo

Contreras, was found guilty of conspiracy to import 500

grams or more of methamphetamine or mixtures thereof

and possession with intent to distribute between 50 and 500

grams of methamphetamine or mixtures thereof. On

September 5, 2002, Macedo was sentenced to 314 months,

while Contreras was sentenced to 210 months. The district

court also granted each defendant a one-point downward

departure based on their status as deportable aliens. 

The defendants allege several errors on appeal. Defendant

Macedo contends that Apprendi was violated when: (1) he

was sentenced beyond the statutory maximum for schedule

III drug violations; (2) the trial court failed to instruct the

jury that it was required to find him guilty beyond a

reasonable doubt of conspiring/possessing/ attempting to

possess a specific amount of drugs as opposed to a range of

drugs; and (3) the district court sentenced him beyond the

statutory maximum by holding him responsible for 799.9

grams of methamphetamine. Macedo also challenges the

sufficiency of the evidence presented at trial on all three

counts of the indictment. Defendant Contreras only asserts

that the trial court abused its discretion by admitting the

testimony of Officer Vasquez under F.R.E. 404(b) concerning two prior drug sales. Finally, the government appeals

the district court’s decision to grant defendant Contreras a

one-point downward departure based on his status as a

deportable foreign national.4

II. ANALYSIS

A. Statutory Maximum Sentence and Apprendi
Nos. 02-3563, 02-3564 & 02-3842 7

Macedo’s primary objection stems from the government

mislabeling methamphetamine a schedule III drug (rather

than correctly labeling it a schedule II drug) in its indictment. But because the indictment listed the specific drug

and quantity charged and the jury found him guilty of

conspiring to import, possessing and attempting to possess

a specific drug type and amount, the incorrect designation

of methamphetamine as a schedule III drug in the indictment does not implicate Apprendi.

On July 7, 1971, the Director of the Bureau of Narcotics

and Dangerous Drugs, on behalf of the Attorney General,

reclassified methamphetamine from a schedule III drug to a

schedule II drug based on its high potential for abuse

relative to other substances. See 36 F.R. 12734, 12735 (July

7, 1971); 21 C.F.R. § 1308.12(d). Title 21 U.S.C. § 811(a)

grants the Attorney General the power to reclassify controlled substances. Title 21 U.S.C. § 812(c), which lists the

drug classification schedule, classifies methamphetamine as

a schedule II drug when it is contained in “any injectable

liquid,” but classifies methamphetamine as a schedule III

drug when it is in any other form. Though previously

unaddressed by this court directly, see United States v.

Roya, 574 F.2d 386, 392-93 (7th Cir. 1978), we now find

that the reclassification of methamphetamine as a schedule

II substance applies to all forms of methamphetamine in

accordance with 21 C.F.R. § 1308.12(d) despite the statute’s

distinction. Accord United States v. Gori, 324 F.3d 234, 240

(3d Cir. 2003) (reasoning that 21 C.F.R. § 1308.12(d) must

supercede 21 U.S.C. § 812(c)’s schedule classification as the

Attorney General acted pursuant to express authorization

and the regulation was properly promulgated); United

States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994); United

States v. Kendall, 887 F.2d 240, 241 (9th Cir. 1989) (per

curiam).
8 Nos. 02-3563, 02-3564 & 02-3842

5 Section 841(a)(1) states that “it shall be unlawful for any person

to knowingly or intentionally [. . .] manufacture, distribute, or

dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance.”

6 Title 21 U.S.C. § 960(b)(1)(H) mirrors the language of section

841(b)(1)(A)(viii).

7 The indictment charged Macedo with three counts. Count one

charged that “defendants herein, conspired among themselves and

with others known and unknown to the Grand Jury, knowingly

and intentionally to import into the United States from a place

outside the United States, a controlled substance, namely 500

grams or more of a mixture or substance containing a detectable

amount of methamphetamine, a Schedule III Narcotic Drug

Controlled Substance; In violation of Title 21, United States Code,

(continued...)

Macedo having been found guilty of 21 U.S.C. § 841(a)(1),5

was sentenced under section 841(b)(1), which sets the

default statutory maximum prison sentence based on the

amount and type of controlled substance at issue. The

statutory maximum penalty for Macedo’s conspiracy charge

is life in prison, id. at § 960(b)(1)(H),6

 while the statutory

maximum penalty for his possession and attempted possession charges is forty years in prison, id. at

§ 841(b)(1)(B)(viii). However, section 841(b)(1)(D) states

that any person found guilty of violating section 841(a)(1)

as it relates to “any controlled substance in schedule

III [. . .] shall [. . .] be sentenced to a term of imprisonment

of not more than 5 years. . . .” Macedo, therefore, reasons

that because the indictment listed the drug as a schedule

III substance, he should have been sentenced to no more

than five years imprisonment under section 841(b)(1)(D). 

An incorrect designation of the drug schedule in the

indictment does not mean there is an Apprendi violation

when the indictment also lists the specific drug as well as

the quantity.7

 In essence, Macedo would have us ignore the
Nos. 02-3563, 02-3564 & 02-3842 9

(...continued)

Section 952(a).” Count three charged that “defendants herein, did

knowingly and intentionally possess with intent to distribute a

controlled substance, namely approximately 460 grams of

methamphetamine or a mixture or substance containing a

detectable amount of methamphetamine, a Schedule III Narcotic

Drug Controlled Substance; In violation of Title 21, United States

Code, Section 841(a)(1).” Count four charged that “defendants

herein, did knowingly and intentionally possess with intent to

distribute a controlled substance, namely, approximately 470

grams of methamphetamine or a mixture or substance containing

a detectable amount of methamphetamine, a Schedule III Narcotic

Drug Controlled Substance; In violation of Title 21, United States

Code, Section 841(a)(1).”

word “methamphetamine” and the quantity designation in

the indictment, focus solely on the portion of the document

which mislabels the schedule classification, and then leap

to the conclusion that any sentence beyond the statutory

maximum for a schedule III drug (5 years) is a violation of

Apprendi. This logic is unsound. 

Apprendi demands that “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. In drug sentencing cases,

Apprendi requires a drug type and amount “sufficient to

trigger the higher statutory maximum of § 841(b)(1)(A) or

(B) be charged in the indictment and found by the jury.”

United States v. Mietus, 237 F.3d 866, 874 (7th Cir. 2001).

Its analysis therefore addresses solely the appropriate

decision maker and burden of proof. United States v.

Bjorkman, 270 F.3d 482, 490-92 (7th Cir. 2001); United

States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003). 

In the case at bar, Macedo was properly indicted and the

jury was properly instructed concerning the applicable

penalties through the use of the special verdict form. The

special verdict form properly tracked the relevant language
10 Nos. 02-3563, 02-3564 & 02-3842

8 Macedo is correct that the schedule classification of a drug may

be relevant to the maximum statutory penalty determination and

may create an Apprendi violation if the indictment refers to the

drug at issue solely in terms of its schedule classification without

referencing the drug type or amount. For example, if the indictment and subsequent verdict form in this case charged Macedo

with conspiracy to import/possession/attempted possession “a

schedule III drug,” then he is correct that the statutory maximum

sentence for that crime, under Apprendi, would be 5 years as

designated by section 841(b)(1)(D). See United States v. Martin,

287 F.3d 609, 614-15 (7th Cir. 2002) (reasoning that where

(continued...)

of 21 U.S.C. § 841(b)(1). The use of this form satisfies the

edicts of Apprendi in that the drug type and amount

sufficient to trigger the higher statutory maximums were

found by the jury beyond a reasonable doubt. Id. Thus,

Macedo was not sentenced beyond the statutory maximum

for the charged offenses. Macedo was sentenced to 314

months imprisonment (approximately 26 years), well below

the statutory maximum for any of the charged offenses. See

United States v. Hernandez, 330 F.3d 964, 981 (7th Cir.

2003) (reasoning that Apprendi is inapplicable when the

defendant is sentenced below the statutory maximum for

the charged offense). The fact that the indictment incorrectly designated methamphetamine as a schedule III

substance had no effect on the validity of the indictment or

the subsequent sentence. See United States v. Trennell, 290

F.3d 881, 889-90 (7th Cir. 2002) (finding error in indictment

harmless where jury determined drug quantity through the

use of a special verdict form); see also United States v.

Greenwood, 974 F.2d 1449, 1472-73 (5th Cir. 1992) (finding

that government erroneously labeling methamphetamine a

schedule III drug did not set statutory maximum sentence

at five years pursuant to § 841(b)(1)(D) and defendant may

be sentenced under § 841(b)(1)(A)(viii) and (B)(viii) where

indictment stated the specific drug type and quantity

range).8
Nos. 02-3563, 02-3564 & 02-3842 11

(...continued)

indictment and verdict form stated only drug type, cocaine,

without stating drug quantity, under Apprendi defendant’s

sentence could not exceed statutory maximum for the smallest

amount of cocaine listed in § 841(b)(1)).

Macedo also misconstrues Apprendi by arguing that it

requires a jury find him guilty beyond a reasonable doubt

of importing/possessing/attempting to possess a specific

amount of methamphetamine as opposed to the drug range

used by the trial court in the special verdict form. He also

takes issue with the district court’s jury instructions. The

district court initially instructed the jury that the government need only prove that he possessed/attempted to

possess “a measurable amount” of a controlled substance to

sustain a guilty verdict of the underlying offenses. The

court then, through the use of a special verdict form, directed the jury, if it found him guilty in the first instance,

to attribute an appropriate range of drugs to each violation.

We review a district court’s choice of jury instruction de

novo when the underlying assignment of error implicates a

question of law, such as the applicability of Apprendi;

however, general attacks on jury instructions are reviewed

for an abuse of discretion. United States v. Smith, 308 F.3d

726, 741 (7th Cir. 2002). In Smith, we explicitly held that,

even in light of Apprendi, drug quantity is not an element

of the offense and need not be proven to sustain a guilty

verdict under § 841(a)(1). Thus, the “measurable amount”

instruction is appropriate as it relates to a finding of guilt

of the underlying offenses. See id. We also explained that a

jury is not required to find a specific drug amount and the

use of a drug range in a verdict form is acceptable under

Apprendi because the elements necessary to trigger the

statutory maximum penalty are found beyond a reasonable

doubt. See id. (reasoning that because 21 U.S.C. § 841(b)

speaks in terms of drug ranges, a jury verdict which par-
12 Nos. 02-3563, 02-3564 & 02-3842

9 To the extent Macedo is arguing that the jury instructions

amounted to a de facto amendment of the indictment, his assertion is foreclosed by Field. The designation of methamphetamine

as a schedule III drug had no substantive effect on the indictment

as it is a fact that “need not be proven even if alleged, [. . .] and

the jury could have been instructed to ignore. . . .” Id. at 133

(quoting United States v. Skelly, 501 F.2d 447, 453 (7th Cir.

1974)).

10 Though the gross weight of the drugs seized totaled 878.8

grams, the district court found that Macedo was only responsible

for 799.7 grams because an expert determined that the drugs recovered from the two pairs of shoes were only 91% pure methamallels the statutory language is lawful); see also Mietus, 237

F.3d at 874 (finding that jury instruction which asked only

that jury find a “measurable amount” without more was

insufficient under Apprendi). 

While we do not espouse the government’s “no harm no

foul” attitude concerning the typographical error in the indictment, the issue remains whether, in light of the error,

Macedo was afforded sufficient notice of the charges against

him to prevent any possibility of prejudice. United States v.

Field, 875 F.2d 130, 133 (7th Cir. 1989). Pursuant to the

logic in Field, where an error in an indictment does not go

to an element of the crime, but rather is typographical in

nature, a defendant is not prejudiced. Id. Therefore, the

improper designation of methamphetamine as a schedule

III drug did not prejudice the defendant as he was directed

to the applicable statute and afforded proper notice of the

charges against him.9

Finally, Macedo also finds fault with the district court’s

sentencing determination that he was responsible for 799.7

grams of methamphetamine, arguing once again that

Apprendi and the United States Sentencing Guidelines

were violated because he was sentenced beyond the statutory maximum for a schedule III substance.10 For the
Nos. 02-3563, 02-3564 & 02-3842 13

(...continued)

phetamine.

11 For example, he points to discrepancies between Mendez’s

grand jury testimony, where he stated that he was to receive the

full $1500 from Contreras and Macedo in the United States, with

his in court testimony, where he stated that he was to be paid in

two installments of $750. He also suggests Maldonado’s testimony

(continued...)

reasons stated above, we reject Macedo’s sentencing argument as he was not sentenced beyond the statutory maximum for the offenses charged.

B. Sufficiency of the Evidence

Macedo contends that the government failed to present

sufficient evidence to support his conviction on all three

charges in the indictment. On appeal, we review the evidence in the light most favorable to the prosecution and will

reverse a jury verdict only when the record “is devoid of any

evidence, regardless of how it is weighed, from which a jury

could find the defendant[] guilty beyond a reasonable

doubt.” Hernandez, 330 F.3d at 976 (citing United States v.

Johnson, 26 F.3d 669, 684 (7th Cir. 1994)). While a sufficiency of the evidence claim is not untenable on appeal, it

is nevertheless a steep hill to climb. Id. (citing United

States v. Frazier, 213 F.3d 409, 416 (7th Cir. 2000)). 

In essence, Macedo takes issue with the propriety of relying on coconspirator testimony to support his convictions.

He argues that Maldonado and Mendez’s testimony was

conflicting, inconsistent and biased, and absent the testimony, there is no evidence linking him to this conspiracy

beyond his mere presence at the airport. However, the

conflicts or inconsistencies Macedo highlights are immaterial.11 With regard to Maldonado and Mendez’s potential
14 Nos. 02-3563, 02-3564 & 02-3842

(...continued)

is unreliable given Maldonado’s statements to the grand jury that

he exchanged the methamphetamine-laden shoes in Contreras’s

car as compared to direct testimony where he stated the exchange

occurred in Contreras’s home.

bias, this court has held that “[u]nless testimony is inherently unbelievable, a guilty verdict may be based on the

testimony of a coconspirator testifying pursuant to a plea

agreement: Credibility is for the jury, not this court to

determine.” United States v. Jewel, 947 F.2d 224, 231 (7th

Cir. 1991) (internal quotations and citations omitted). 

Reviewing the record, we do not find that Maldonado

and Mendez’s testimony was “inherently unbelievable.”

Id. Quite the contrary, it was corroborated by the direct

evidence presented at trial. The government recovered

Mendez’s methamphetamine-laden shoes from the motel

room rented by Macedo. Agents observed the meeting between the four men on January 20, 2001, the day of the

arrest. Agent Michael Heene witnessed Maldonado place a

call to Contreras and Macedo which led to the meeting at

O’Hare Airport. Accordingly, we will not disregard the

testimony of his coconspirators. 

Taking all the evidence presented to the jury into account,

it had ample evidence to support its guilty verdict on all

three charges in the indictment. To sustain a conspiracy

conviction, the government must prove that “two or more

persons joined together for the purpose of committing a

criminal act and that the charged party knew of and

intended to join the agreement.” United States v. Adkins,

274 F.3d 444, 450 (7th Cir. 2001). Further, a jury is not

limited to direct evidence (though here the record contains

a plethora) and may “find an agreement to conspire based

upon circumstantial evidence and reasonable inferences

drawn [from] the relationship of the parties, their overt
Nos. 02-3563, 02-3564 & 02-3842 15

acts, and the totality of their conduct.” United States v.

Turner, 93 F.3d 276, 282 (7th Cir. 1996) (quoting United

States v. Mojica, 984 F.2d 1426, 1432 (7th Cir. 1993)). 

The jury heard the following evidence: (1) Macedo traveled to the airport to pick up Mendez and Maldonado; (2)

Macedo paid for the new shoes Mendez exchanged for the

shoes containing the drugs; (3) he paid for the motel room

from which the drugs were subsequently recovered; (4) he

told Maldonado that he would purchase his return ticket to

Mexico; and (5) his cellular phone number was given to both

coconspirators. See United States v. Gutierrez, 978 F.2d

1463, 1469 (7th Cir. 1992) (“[A] single act will suffice if the

circumstances permit the inference that the presence or act

was intended to advance the ends of the conspiracy.”). Thus,

Macedo’s involvement traversed the line from mere presence to participant. See United States v. Albarran, 233 F.3d

972, 977 (7th Cir. 2000) (reasoning that a government need

only prove a “participatory link” between the defendant and

the conspiracy). The jury had sufficient evidence to find that

Macedo knew of and intended to enter into an agreement

with Contreras, Maldonado and Mendez to engage in the

criminal act of importing methamphetamine.

The evidence also supports the jury’s verdict with regard

to Macedo’s possession with intent to distribute and

attempted possession charges. Under 21 U.S.C. § 841(a)(1),

the government must prove that Macedo (1) knowingly or

intentionally possessed the methamphetamine, (2) possessed it with the intent to distribute it, and (3) knew that

methamphetamine was a controlled substance. United

States v. Griffin, 194 F.3d 808, 816 (7th Cir. 1999). Mendez

testified that upon his arrival in the United States, he gave

the shoes containing the methamphetamine to Macedo who

determined it was safer to leave the shoes in the motel

room which Macedo secured. Thus, the jury could have

reasonably found that Macedo actually possessed the drugs,

as well as constructively possessed them. See United States
16 Nos. 02-3563, 02-3564 & 02-3842

v. Perlaza, 818 F.2d 1354, 1360 (7th Cir. 1987) (finding that

evidence of registration and control over a hotel room

containing drugs may be sufficient to find constructive

possession of drugs); see also United States v. Garrett, 903

F.2d 1105, 1112 (7th Cir. 1990) (holding that constructive

possession is sufficient to sustain a conviction under 21

U.S.C. § 841(a)(1)). Furthermore, the jury could have

reasonably found that Macedo intended to distribute the

methamphetamine based on the large quantity seized and

the testimony of his coconspirators.

C. Admission of Prior Bad Act Evidence Under

F.R.E. 404(b)

Defendant Contreras challenges the decision of the

district court to admit the testimony of Officer Vasquez

concerning two prior drug sales which occurred in 1992

as dissimilar and too remote in time. We review a district

court’s decision to admit evidence pursuant to Rule 404(b)

of the Federal Rules of Evidence for abuse of discretion.

United States v. Anifowoshe, 307 F.3d 643, 646 (7th Cir.

2002). Rule 404(b) prohibits the use of a defendant’s prior

bad acts as propensity evidence while permitting its use

to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”

Fed. R. Evid. 404(b). 

We have long recognized that the permissible use of prior

bad act evidence to prove intent or lack of mistake may

have the potential impermissible side effect of allowing the

jury to infer criminal propensity. See United States v.

Beasley, 809 F.2d 1273, 1278 (7th Cir. 1987) (“When the

same evidence has legitimate and forbidden uses, when the

introduction is valuable yet dangerous, the district judge

has great discretion.”). To address these twin concerns, we

have reasoned that evidence is properly admitted if the

government is able to show that: 
Nos. 02-3563, 02-3564 & 02-3842 17

(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence

shows that the other act is similar enough and close

in time to be relevant to the matter in issue, (3) the

evidence is sufficient to support a jury finding that

the defendant committed the similar act, and (4)

the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

United States v. Wash, 231 F.3d 366, 370 (7th Cir. 2000)

(quoting United States v. Wilson, 31 F.3d 510, 514-15 (7th

Cir. 1994)). Furthermore, when a defendant is charged with

a specific intent crime, such as possession with intent to

distribute, we have reasoned that evidence of past action is

probative if used to establish an essential element of the

crime charged. Id.; United States v. Long, 86 F.3d 81, 84

(7th Cir. 1996). 

Though this is a close case, we cannot find that the district court abused its discretion by admitting the testimony

of Officer Vasquez. Contreras correctly points out that there

is a nine-year gap between the 1992 drug sales and the

2001 charges. While we acknowledge that nine years is a

substantial amount of time, the temporal proximity of the

prior acts to the current charge is not alone determinative

of admissibility. See United States v. Wimberly, 60 F.3d 281,

285 (7th Cir. 1995) (admitting prior bad act evidence that

occurred thirteen years prior to charge when evidence was

highly reliable and relevant to credibility); United States v.

Mounts, 35 F.3d 1208, 1214 (7th Cir. 1994) (permitting

admission of drug purchase which occurred seven years

prior to arrest to prove element of intent). 

Defendant’s argument that the events are not sufficiently

similar because the 1992 transaction involved cocaine while

his current conviction involves methamphetamine is also

unsupported by this circuit’s precedent. The similarity
18 Nos. 02-3563, 02-3564 & 02-3842

inquiry focuses on the purpose for which evidence is offered.

Long, 86 F.3d at 84. The 1992 cocaine sales were offered to

prove Contreras’s intent to possess distribution amounts of

illicit drugs. See United States v. Hernandez, 84 F.3d 931,

935 (7th Cir. 1996) (finding sufficient similarity when

different drugs are at issue because both instances involved

“distribution amounts of drugs and illicit transport”); Wash,

231 F.3d at 370 (finding sufficient similarity when prior bad

acts and current charge both involve “possessing distribution amounts of drugs”).

The evidence submitted by Officer Vasquez was unquestionably reliable. The record also reveals the district

court’s thorough discussion of Contreras’s theory of the

case, i.e., that he lacked the intent to enter into a conspiracy to import or possess methamphetamine or the

knowledge that one existed and was simply present at the

airport that day by happenstance. (During closing arguments his attorney went so far as to call him a “dupe” or fall

guy.) This theory coupled with the government’s need to

prove an essential element of the case, i.e., that the defendant acted with the requisite specific intent, supports the

district court’s decision to admit the prior bad acts. 

Further, any prejudicial effect on the defendant was

lessened by the trial court’s limiting instruction that the

evidence was solely to be used to evaluate the issue of intent. See United States v. Tringali, 71 F.3d 1375, 1379 (7th

Cir. 1995). Finally, were we to err on the side of caution and

deem this testimony’s admission in error, it would undoubtedly be harmless as the weight of the evidence against

Contreras was overwhelming. See United States v. Coleman,

179 F.3d 1056, 1062 (7th Cir. 1999).

D. Downward Departure Based on Alien Status 

The government appeals the district court’s decision to

grant defendant Contreras a one-point downward departure
Nos. 02-3563, 02-3564 & 02-3842 19

12 Contreras argues that the district court made the following

findings: (1) Contreras would not be able to serve any time in a

halfway house; (2) he would not be eligible for a minimum security

facility because he would have to be sent to one of three facilities

able to conduct deportation hearings; and (3) the high likelihood

he would be incarcerated in an INS camp which is “much harder

time.” After reviewing the record, we find that the district court

made no such findings. Rather these points were advanced by

Contreras in his argument to the court below.

based on its finding that his alien status and deportability

would cause the conditions of confinement to be more

“onerous.” The district court found that Contreras would

suffer a substantial hardship because the Bureau of

Prison’s (BOP) placement policy for deportable aliens

“limits the discretion of the Bureau of Prisons to take into

account among other things factors that would warrant

more humanitarian designations like family and other

matters.” Sent. Trans. at 6-16.12

We review a district court’s decision to grant a downward

departure de novo. United States v. Mallon, 345 F.3d 943,

945-47 (7th Cir. 2003) (discussing the retroactive application of section 401(d) of the Prosecutorial Remedies and

Tools Against the Exploitation of Children Today Act of

2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650,

which amended 18 U.S.C. § 3742(e)’s prior standard of

review); see also United States v. Griffith, 344 F.3d 714,

718 (7th Cir. 2003) (discussing the effect of the PROTECT

Act on a district court’s decision to upward depart). This

court has held that “the defendant’s status as a deportable

alien is relevant only insofar as it may lead to conditions of

confinement, or other incidents of punishment, that are

substantially more onerous than the framers of the guidelines contemplated in fixing the punishment range for the

defendant’s offense.” United States v. Guzman, 236 F.3d

830, 834 (7th Cir. 2001) (emphasis added). 
20 Nos. 02-3563, 02-3564 & 02-3842

We then further explained that it is permissible “in exceptional circumstances” to take into account a defendant’s

alienage when assessing whether his status makes his conditions of confinement “harsher by disentitling a defendant

to serve any part of his sentence in a halfway house,

minimum security prison, or intensive confinement center,

so that the same nominal prison sentence would be, quite

apart from the sequel of deportation, a more severe punishment than if the defendant were a citizen.” Id. More

recently, we explained that downward departures based

solely on an alien’s loss of “end-of-sentence modifications,”

such as halfway house placement, “cannot be viewed as a

term of imprisonment ‘substantially more onerous’ than the

guidelines contemplated in fixing a punishment for

a crime.” United States v. Meza-Urtado, 351 F.3d 301,

305 (7th Cir. 2003); but see Mallon, 345 F.3d at 949 (“A

prisoner who is ineligible for transfer, and as a result of

alienage becomes ineligible for transitional release, suffers

a real disadvantage.”). 

The government is correct that the district court based its

decision on the BOP’s policy which places alien prisoners in

certain facilities. Any defendant, citizen or alien, may be

placed far from loved ones and family and thus this circumstance is not substantially more onerous than contemplated

by the guidelines. Furthermore, application of this logic

would amount to a per se downward departure for any

deportable alien, which standing alone, is an impermissible

basis for granting a downward departure. United States v.

Gallo-Vasquez, 284 F.3d 780 (7th Cir. 2002) (remanding

based on district court’s failure to make a sufficient showing

that defendant’s situation was “exceptional”). Contreras

must therefore be resentenced.

III. CONCLUSION

For the reasons stated above, defendant Macedo’s judg-
Nos. 02-3563, 02-3564 & 02-3842 21

ment of conviction and sentence is AFFIRMED. Defendant

Contreras’s judgment of conviction is also AFFIRMED, however, his sentence is VACATED and his case is REMANDED for

resentencing consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-15-04