In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3159

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FIDEL GARCIA,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 421-1—Amy J. St. Eve, Judge.

____________

ARGUED NOVEMBER 2, 2005—DECIDED FEBRUARY 28, 2006

____________

Before COFFEY, EASTERBROOK, and WILLIAMS, Circuit

Judges.

COFFEY, Circuit Judge. A jury found Fidel Garcia guilty

of one count of conspiracy to distribute, 21 U.S.C. § 846, and

one count of possession with intent to distribute cocaine, 21

U.S.C. § 841(a)(1). The district court sentenced him to two

concurrent terms of 126 months’ imprisonment and two

concurrent terms of 5 years’ supervised release. Garcia now

contends that his conviction is illegal because the district

court “deprived [him] of the presumption of innocence” by

allowing an expert to testify that innocent parties do not

attend drug deals. Garcia also argues, and the government

concedes, that his sentence is erroneous under United

States v. Booker, 543 U.S. 220 (2005). We affirm the
2 No. 04-3159

conviction, but vacate the sentence and remand the case for

resentencing under United States v. Schlifer, 403 F.3d 849

(7th Cir. 2005).

I. BACKGROUND

Garcia was arrested on April 19, 2003, during a DEA

sting operation and subsequently indicted with two

others caught in the sting: Juan Angulo-Hernandez, who

worked at the construction company where Garcia was

union steward, and Mario Jara, Garcia’s brother-in-law.

The indictment charged each of them with one count of

conspiring to distribute cocaine and one count of possession

of cocaine with intent to distribute.

At trial, the government presented evidence that on April

19, 2003, Angulo-Hernandez phoned Garcia, asking him for

“six burritos, meaning six kilos of cocaine,” for sale to DEA

informant, Roger Woods. Garcia met with AnguloHernandez; later they were joined by Jara, who did not

know Angulo-Hernandez. Garcia, Jara, and AnguloHernandez then went together to the meeting with Woods.

Angulo-Hernandez drove Garcia’s Ford Expedition, and

Garcia accompanied him as passenger. Garcia directed Jara

to follow them in a Nissan carrying six kilograms of cocaine.

Angulo-Hernandez met Woods as arranged, and then, at

Woods’s request, drove with Garcia to Woods’s house,

followed by Jara. Angulo-Hernandez and Jara entered

the house with Woods while Garcia remained in the Ford

Expedition. Some time later, Woods told Angulo-Hernandez

and Jara that he wanted to see the cocaine. Jara went

outside to speak with Garcia. When he came back, Jara

took Woods to the Nissan and showed him the cocaine.

Next, Woods told Angulo-Hernandez and Jara that they

needed to go to the home of one of his friends to complete

the transaction. Woods drove his own car, followed by
No. 04-3159 3

Angulo-Hernandez and Garcia in the Ford Expedition and

Jara in the Nissan. A short time later, the DEA and local

law enforcement agents arrested Garcia, Jara and AnguloHernandez, and took them into custody.

In addition to direct testimony about the events preceding

the arrest from Woods, his DEA handler, and AnguloHernandez (who provided evidence that Garcia was his

drug source), the government submitted cell phone records that reflected calls between Angulo-Hernandez and

Garcia, and between Garcia and Jara (but none between

Angulo-Hernandez and Jara), as well as vehicle registration

documents connecting Garcia (and no one else) with both

the Ford Expedition and the Nissan.

The government also called Sergeant Robert Coleman

who qualified as an expert in narcotics trafficking to testify

to common practices in structuring drug deals. Over Garcia’s objections, the court permitted Coleman to testify that

none of the more than one hundred drug transactions he

had personally observed had involved an innocent adult

present at the scene. Furthermore, he explained that drug

dealers typically do not allow people not involved in the

transaction to be present because of the risk that they

might leak the information to law enforcement authorities.

In its closing arguments, the government emphasized this

testimony, stating twice: “[y]ou heard . . . innocent third

parties don’t go to drug deals.”

Garcia decided not to present any evidence in his defense and simply argued that the government’s evidence

was insufficient, relying on the presumption of innocence

and on the fact that there was no evidence that he participated in negotiations with Woods. Among other things,

he asked the jury to use “common sense” to reject Coleman’s

expert testimony, and warned them that they could not

convict him because of his mere presence during the

transaction. The district court issued instructions concern-
4 No. 04-3159

ing the government’s burden of proof, the presumption

of innocence, and the insufficiency of mere presence and

guilt by association as a basis for conviction.

The jury found Garcia guilty on both counts set forth in

the indictment. The presentence report (“PSR”) recommended a base offense level of 32 for an offense involving at

least 5 but less than 15 kilograms of cocaine, U.S.S.G.

§ 2D1.1(a)(3), (c)(4), and a two-level upward adjustment for

a managerial or supervisory role in the offense, U.S.S.G.

§ 3B1.1(c). The PSR also recommended a criminal history

category of II. These factors considered in combination with

each other produced a guideline range of 168 to 210 months.

Garcia, however, persuaded the trial judge that his Sixth

Amendment rights under Blakely v. Washington, 542 U.S.

296 (2004), would be violated by application of the adjustment for his role in the offense and the second criminal

history point that raised him to a criminal history category

of II. The district court calculated the guideline range

minus any adjustment for Garcia’s role in the offense and

using a Criminal History category of I. This resulted in a

range of 121 to 151 months (just above the statutory

minimum of 120 months, see 21 U.S.C. § 841(b)(1)(A)).

Treating the guidelines as mandatory, the district court

thought neither the high nor the low end of the range

appropriate and imposed a sentence of 126 months.

II. ANALYSIS

In framing his argument, Garcia suggests that he was

deprived of his “presumption of innocence”: by the admission of Coleman’s expert testimony, and by the government’s use of the testimony to argue in closing that he

was involved in the drug deal. We treat the claims as one.

Because the government’s arguments did no more than

summarize Coleman’s testimony, any error with regard to

them is adequately treated in addressing whether the

admission of the expert testimony was error.
No. 04-3159 5

Initially we note that we have previously approved the

admissibility of what Garcia himself admits is “substantially similar” testimony under the Federal Rules of Evidence. In United States v. Love, 336 F.3d 643, 645 (7th Cir.

2003), we considered expert testimony that it was

“[un]common for persons involved in a drug conspiracy” to

allow other people to be present who are not involved in the

particular transaction. Because the expert did not refer to

the intent of the defendant or to his mental state, we

rejected the defendant’s claim that the testimony violated

Federal Rule of Evidence 704(b) (forbidding testimony from

expert witnesses as to “whether the defendant did or did not

have the mental state or condition constituting an element

of the crime charged”). Id. at 647. Moreover, we have relied

upon and repeatedly upheld the admission of testimony of

the same general nature concerning “common practices of

drug dealers and how typical drug sales occur.” Id.; see, e.g.,

United States v. Cruz-Velasco, 224 F.3d 654, 660 (7th Cir.

2000). We suggested at oral argument that such testimony

might be impeached as inadequately scientific under

Federal Rule of Evidence 702 (requiring expert testimony to

be “based upon sufficient facts or data” and to be “the

product of reliable principles and methods”), but this

possibility cannot help Garcia because he did not raise a

proper Rule 702 objection in the district court. The admissibility of Coleman’s testimony thus is a high hurdle to

overcome.

Garcia argues that the challenge he now brings is a

different sort of challenge, but even if it is, it must fail

because he has failed to demonstrate that Coleman’s

testimony did impact the presumption of innocence. The

Supreme Court defined the presumption in Taylor v.

Kentucky, 436 U.S. 478 (1978), as having two functions. It

is first “a way of describing the prosecution’s duty both to

produce evidence of guilt and to convince the jury beyond a

reasonable doubt,” id. at 483, n.12; it also has the
6 No. 04-3159

special function of “ ‘caution[ing] the jury to put away from

their minds all the suspicion that arises from the arrest, the

indictment, and the arraignment, and to reach their

conclusion solely from the legal evidence adduced,’ ” id. at

484-85 (quoting 9 J. Wigmore, Evidence § 2511, at 407 (3d

ed. 1940)). Thus, the presumption is violated when presentation of evidence at trial affects the quantum of proof

required for conviction or when the jury is encouraged

(or allowed) to consider facts which have not been received

in evidence. Garcia has failed to demonstrate either sort

of violation.

We understand him to be invoking the first function of

the presumption of innocence when he implies that asking the jury to draw any inference that he knew of the drug

transaction altered the quantum of proof required of the

government. But his reasoning is flawed. Although some

inferences may do so, the one at issue in this case does not

because it was a rational inference of guilt and not a

mandatory one. Non-mandatory inferences do not affect the

application of the reasonable doubt standard unless “under

the facts of the case, there is no rational way the trier of

fact could make the connection permitted by the inference.”

County Court of Ulster County, New York v. Allen, 442 U.S.

140 (1979). See also United States v. Turcotte, 405 F.3d 515,

527 n.4 (7th Cir. 2005) (noting that a “non-mandatory

inference does not place any improper evidentiary burden

on the defendant as long as ‘there is a “rational connection”

between the basic facts that the prosecution proved and the

ultimate fact presumed, and the latter is “more likely than

not to flow from” the former’ ”) (quoting Allen, 442 U.S. at

165). In Turcotte, in fact, we “prescribe[d]” an inference as

to the defendant’s knowledge of a certain fact necessary to

prove guilt. See Turcotte, 405 F.3d at 527.

Coleman’s opinion that it is unlikely for innocent parties

to be present at drug deals is most logical and reasonable

because it accords with expert experience as well as com-
No. 04-3159 7

mon sense. See United States v. Starks, 309 F.3d 1017, 1023

(7th Cir. 2002); United States v. Zafiro, 945 F.2d 881, 888

(7th Cir. 1991), aff’d on other grounds, 506 U.S. 534 (1993).

See also Allen, 442 U.S. at 165 n.27 (invoking statutory

presumption that all occupants of vehicle are considered to

be in possession of dangerous drugs found in vehicle

because legislature “[did] not believe that persons transporting dealership quantities of contraband are

likely to go driving about with innocent friends or that they

are likely to pick up strangers”).

The inference of Garcia’s involvement in the deal was also

non-mandatory. Even when an inference is characterized as

a legal presumption, it is non-mandatory (and there is no

constitutional difficulty) as long as the presumption “leaves

the trier of fact free to credit or reject the inference and

does not shift the burden of proof.” Allen, 442 U.S. at 157.

But here the jury was never advised to treat the inference

as a presumption. In United States v. Burns, 683 F.2d 1056,

1060 (7th Cir. 1982) (per curiam), we held that an inference

contained in a jury instruction was non-mandatory because

it was “not expressly labeled as a legal presumption.” There

is still less reason for concern in this case, because the

inference was not directed by the court’s instructions but

only by testimony and argument. Indeed, it is difficult to

conceive how the jurors could have construed the inference

as mandatory, after the district court specifically instructed

them not to convict Garcia solely because of his presence

during the deal or because of his association with admitted

drug dealers.

Garcia has also failed to demonstrate that Coleman’s

testimony interfered materially with what Taylor describes as the second function of the presumption of innocence: that of confining the jury’s consideration to

the legitimate evidence. See Taylor, 436 U.S. at 484-87;

United States v. DeJohn, 638 F.2d 1048, 1057 (7th Cir.

1981). In Taylor, the Supreme Court suggested that there
8 No. 04-3159

might be an error of constitutional dimensions in the

government’s invitation to jurors to consider the defendant’s

status as a defendant to be evidence of his guilt. Taylor, 436

U.S. at 486-87. The Court distinguished “the suspicion that

arises from the arrest, the indictment, and the arraignment” from “the legal evidence adduced.” Id. at 485. Garcia

contends that the government made the same mistake

during his trial. But the government did not imply that

Garcia was guilty because he was a defendant. It did not

refer to his being a defendant at all. Moreover, the Court

reversed the defendant’s conviction in Taylor because of the

district court’s failure to instruct the jury in the presumption of innocence after the government’s comments about

the defendant’s status. Id. at 490. This case is dissimilar

because Garcia received the benefit of instructions on both

reasonable doubt and the presumption of innocence.

Garcia further argues that permitting Coleman’s testimony that drug dealers do not bring innocent persons to

drug deals was tantamount to authorizing the jury to ignore

the rule that mere presence does not support a conviction.

But under the law of this circuit, by introducing Coleman’s

testimony, the government already had taken a step beyond

reliance on mere presence. See Zafiro, 945 F.2d at 888

(holding that government established “more” than mere

presence through expert testimony that “drug dealers do

not discuss or deliver large quantities of illegal drugs in the

presence of innocent bystanders”). “The mere-presence

doctrine means just what it says—presence and nothing

more.” Starks, 309 F.3d at 1026. It means that the government is not permitted to ask a jury to convict a defendant

just because he was found in proximity to illegal activity.

Id. Coleman’s testimony, however, adds to Garcia’s mere

presence at the deal. He was not only there; he was present

when it was unlikely for an innocent person to be there.

Zafiro suggests that such expert testimony may be

enough in itself to refute the allegation that the government
No. 04-3159 9

has relied on mere presence, see Zafiro, 945 F.2d at 888.

But we do not have to resolve that question because the

government did not rely exclusively on Coleman’s testimony

to carry its burden. It also pointed to several significant

pieces of circumstantial evidence: Angulo-Hernandez’s

admission during his plea colloquy that Garcia was his

source for the drugs he attempted to sell to Woods; the fact

that Jara and Angulo-Hernandez did not know each other

before the transaction (the jury could infer that those two

would not have spontaneously cooperated in a wholesalelevel drug deal without Garcia as guarantor of each other’s

trustworthiness); Jara’s consultation with Garcia before

showing Woods the cocaine; and the vehicle document

which connected Garcia with the Nissan.

Finally, Garcia contends that United States v. Booker, 543

U.S. 220 (2005), compels resentencing. Although the district

court ruled in his favor on his Sixth Amendment arguments, he points out that it still treated the guidelines as

mandatory. Garcia did not specifically contest

the mandatory application of the guidelines in the district court, but we have held that a Sixth Amendment

challenge is “specific enough” to preserve an objection based

on the mandatory character of a sentence. United States v.

Schlifer, 403 F.3d 849, 854 (7th Cir. 2005).

The government suggests that we direct a limited remand

under United States v. Paladino, 401 F.3d 471 (7th Cir.

2005), on the ground that Garcia did not “allege a violation

of the Sixth Amendment or interpose an Apprendi-style

objection.” We disagree. Garcia expressly cited the Sixth

Amendment, Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely v. Washington, 542 U.S. 296 (2004), and this court’s

decision in United States v. Booker, 375 F.3d 508 (7th Cir.

2004), in his “Memorandum in Aid of Sentencing” in the

district court. He must submit to full resentencing under

Schlifer as a consequence of maintaining this appeal.

On remand we ask the district court to consider the

sentencing factors it felt constrained to exclude before, and
10 No. 04-3159

these will inform its exercise of discretion in selecting a new

sentence. Garcia’s risk of receiving a longer sentence is even

greater than the risk faced by other defendants whom we

have warned might not receive the benefit from

resentencing they anticipated. See United States v. Roche,

415 F.3d 614, 620 (7th Cir. 2005); United States v. Goldberg,

406 F.3d 891, 894 (7th Cir. 2005). But the case for

resentencing is nonetheless strong because the district

court’s remedy for the Sixth Amendment problem—which

was simply to ignore sentencing factors that depended on

facts not found by a jury—is inconsistent with the remedy

chosen by the Supreme Court in Booker. After Booker,

courts must “compute the guidelines sentence just as [they]

would have done before,” finding necessary facts under a

preponderance standard, then “decide whether the guidelines sentence is the correct sentence to give the particular

defendant.” United States v. Dean, 414 F.3d 725, 727 (7th

Cir. 2005). The district court’s failure to consider whether

a role adjustment was appropriate and whether an additional criminal history point was warranted means that it

did not apply the guidelines properly, and this in itself is

grounds for resentencing unless the government can show

that the error was harmless. See United States v. Berheide,

421 F.3d 538, 542 (7th Cir. 2005); United States v. Graves,

418 F.3d 739, 746 (7th Cir. 2005); Schlifer, 403 F.3d at 854.

The government concedes that it cannot do so because the

record contains insufficient information to allow us to

determine whether the district court’s “choice of sentence

would have been the same” under a correct interpretation

of the guidelines. Schlifer, 403 F.3d at 855.

III. CONCLUSION

We AFFIRM the conviction, but VACATE the sentence

and REMAND the case for resentencing under Schlifer.
No. 04-3159 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-28-06