In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2404

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARTIN AVILA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 02 CR 141—David F. Hamilton, Chief Judge.

ARGUED OCTOBER 29, 2008—DECIDED MARCH 6, 2009

Before POSNER, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge. From 2000 to 2001, law enforcement officers conducted an investigation that revealed

extensive drug trafficking activities in the Indianapolis

area. An organization comprised primarily of Mexican

nationals was obtaining large amounts of controlled

substances from individuals in Mexico, Texas, and Illinois,

and redistributing the drugs throughout parts of Indiana.

On October 17, 2002, defendant Martin Avila and eight

other individuals were indicted for their roles in the
2 No. 07-2404

This agency has been known since 2003 as the Bureau of

1

Immigration and Customs Enforcement. It was known as the

INS at the time of this investigation.

conspiracy. Avila was tried alone in a two-day jury trial

and convicted on March 13, 2007. He was sentenced to

396 months’ imprisonment and ten years of supervised

release. Avila appeals his conviction and sentence. He

argues (1) that he was prejudiced by a fatal variance

between the charged crime and the proof adduced at trial;

(2) that the district court erred in admitting several witnesses’ testimony or comments; and (3) that the Sentencing Guidelines range imposed was inaccurate. For

the reasons that follow, we affirm Avila’s conviction

and remand for resentencing.

I. BACKGROUND

In mid-2000, the Federal Bureau of Investigation, Immigration and Naturalization Services, Indianapolis Police 1

Department, and Metropolitan Drug Task Force began

investigating the drug trafficking activities of a Mexican

drug organization. Law enforcement determined that

members of this organization were obtaining large

amounts of controlled substances, including methamphetamine, cocaine, marijuana, and amphetamine, from

individuals in Mexico, Texas, and Illinois. They were

then distributing the drugs throughout areas in Indiana

surrounding Indianapolis. Martin Avila, Fidelmar SotoNava, Wilbert Avant, Rene Nava-Rubio, and Hilario

Espinoza-Sarco were all identified as potential members

of the organization.
No. 07-2404 3

From March through August of 2001, officers utilized

court-authorized wiretaps to monitor cellular telephones

linked to Soto-Nava and Nava-Rubio. In several of the

intercepted conversations, Avila discussed the sale of

drugs with Nava-Rubio using code language. At times,

Avila also spoke briefly with Soto-Nava, although it does

not appear from the record that they discussed drug

distribution. Seventeen of these recordings would later

be admitted into evidence at Avila’s trial.

On October 17, 2002, Avila and eight other members of

the organization were indicted for conspiracy to distribute and/or possess with the intent to distribute numerous controlled substances. Specifically, the grand jury

charged that Avila and his co-conspirators distributed

500 grams or more of a mixture or substance containing

methamphetamine, 50 grams or more of methamphetamine, 500 grams or more of a mixture or substance

containing a detectable amount of cocaine, and 100 kilograms or more of a mixture or substance containing a

detectable amount of marijuana.

Avila’s jury trial began on March 12, 2007. In his opening

statement, Avila’s counsel claimed that this was a case

of mistaken identity. He conceded that there was significant evidence of a conspiracy, but he argued that Avila

had never had contact with Nava-Rubio and that he

had no role in the alleged conspiracy.

In its case-in-chief, the government called two law

enforcement officers who had been involved in the investigation, Jo Ann Burkhart and Michael Reeves.

Burkhart, an FBI special agent in Indianapolis, testified
4 No. 07-2404

that law enforcement personnel had discovered the drug

operation and eventually seized large quantities of methamphetamine, marijuana, cocaine, and amphetamine.

She also explained the monitoring of Soto-Nava’s and

Nava-Rubio’s phones.

Reeves, an INS agent at the time of the investigation,

testified that he was working undercover in Indianapolis

in 2001. While undercover, Reeves purchased methamphetamine from Soto-Nava at least twice, once on a

consignment basis. He also testified that after Soto-Nava

was incarcerated, he continued to purchase drugs from

Soto-Nava’s common-law wife and another young man.

The government also called two of Avila’s co-defendants—Avant and Nava-Rubio. Avant testified that he

was selling drugs in Indianapolis in 2000 and 2001. Avant

originally had been receiving drugs from Soto-Nava and

Nava-Rubio. At some point, however, Soto-Nava introduced Avant to Avila so that Avant could obtain larger

quantities of cocaine. Avant never testified to whether

Avila knew that this was the purpose of the introduction.

Avant testified that in 2000 and 2001, Avila supplied

him with approximately 3 to 4 pounds of methamphetamine and 5 to 6 kilograms of cocaine per month, as well as

a total of 500 pounds of marijuana. Avila sold these drugs

to Avant on a consignment basis. Avila would deliver

the drugs himself or have someone else deliver them,

often using hidden compartments in automobiles to

conceal the drugs.

Nava-Rubio testified that Avila, who was living in

Chicago, asked Nava-Rubio to sell drugs for him in
No. 07-2404 5

Indiana and provided him with the drugs on consignment.

Avila or someone working for him—such as Hilario

Espinoza-Sarco—would transport the drugs to Indiana

using hidden compartments. Over the course of their

relationship, Avila supplied Nava-Rubio with over 100

pounds of methamphetamine, 20 to 30 kilograms of

cocaine, and 300 to 400 pounds of marijuana.

The government also used Nava-Rubio’s testimony to

authenticate and explain sixteen of the intercepted telephone calls between Avila and Nava-Rubio that were

introduced into evidence and played for the jury. In one

of the telephone calls, Avila and Nava-Rubio discussed

using a hidden compartment in Avila’s car to transport

drugs. In other calls, Nava-Rubio and Avila discussed

payments for drugs that Avila had fronted to Nava-Rubio.

Nava-Rubio and Avila also discussed Nava-Rubio

selling the drugs Avila had provided him to a “white guy.”

As its final witness, the government called Sergeant

Dean Wildauer. Wildauer, a member of the Indiana State

Police criminal interdiction team, testified to the typical

use of hidden compartments in drug trafficking operations.

Avila opted not to testify or present any evidence. He

never made a motion for a judgment of acquittal, and

the jury found him guilty on March 13, 2007.

The presentence report (PSR) was provided to the

parties on May 4, 2007. The PSR indicated that the

total marijuana equivalency weight of the drugs distributed was 24,234 kilograms and recommended a Base

Offense Level of 38. The PSR also applied seven criminal

history points, four of which derived from two prior
6 No. 07-2404

Avila also challenges the testimony of Agent Reeves. How- 2

ever, this claim rests on his contention that Reeves testified to

facts regarding a separate conspiracy that Avila did not join.

Because this analysis is directly relevant to whether the

alleged variance prejudiced Avila, we will discuss it in that

context.

convictions for possession of controlled substances.

Avila had been sentenced on the same date for each of

these cases. He had received a six-month sentence in case

94 CR 1983, and a sentence of two years’ custody in case

94 CR 670, suspended upon completion of the sentence in

94 CR 1983.

On June 8, 2007, the district court held a sentencing

hearing. Both the government and Avila indicated that

they did not object to the PSR. The district court sentenced Avila to 396 months’ imprisonment, followed by

ten years of supervised release.

II. ANALYSIS

Avila raises three issues on appeal. First, he argues

that there was a fatal variance between the conspiracy

alleged in the indictment and the proof adduced at trial.

Second, he argues that the testimony of several witnesses

was irrelevant and unduly prejudicial. Specifically, he

challenges the testimony of Sergeant Wildauer and statements of several witnesses relating to Avila’s guilt. Avila 2

claims that the cumulative effect of these errors merits

reversal. Finally, Avila claims that the district court erred

in calculating the sentencing range by relying on an
No. 07-2404 7

incorrect offense level and misinterpreting Avila’s criminal history. We discuss each issue in turn.

A. Avila’s Variance Claim

To obtain a conspiracy conviction against a defendant,

the government must prove that (1) two or more people

agreed to commit an unlawful act, and (2) the defendant

on trial knowingly and intentionally joined in the agreement. United States v. Dumes, 313 F.3d 372, 382 (7th Cir.

2002). Thus, two or more individuals conspired together

if the evidence demonstrates that they “embraced a

common criminal objective,” even if they did not know

each other or participate in every aspect of the crime.

United States v. Jones, 275 F.3d 648, 652 (7th Cir. 2001).

On the other hand, two individuals cannot be said to

have conspired together “when each of the conspirators’

agreements has its own end, and each constitutes an end

in itself.” United States v. Sababu, 891 F.2d 1308, 1322

(7th Cir. 1989). This issue often arises in the context of

“hub-and-spoke” conspiracies, where a defendant serves

as a “hub” connected to each of his co-conspirators via

a “spoke.” See United States v. Swafford, 512 F.3d 833, 842

(6th Cir. 2008), cert. denied, 129 S. Ct. 329 (2008). In this

context, we have said that to prove the existence of a

single conspiracy, “a rim must connect the spokes

together, for otherwise the conspiracy is not one but

many.” United States v. Bustamante, 493 F.3d 879, 885 (7th

Cir. 2007), cert. denied, 128 S. Ct. 1460 (2008). This “rim” is

an agreement to further a single design or purpose, a
8 No. 07-2404

characteristic that we have noted is the defining quality

of a conspiracy. United States v. Thomas, 520 F.3d 729, 733

(7th Cir. 2008). Thus, for a single, overarching conspiracy

to exist, “ ‘those people who form the wheel’s spokes

must have been aware of each other and must do something in furtherance of some single, illegal enterprise.’ ”

Bustamante, 493 F.3d at 885-86 (quoting United States

v. Levine, 546 F.2d 658, 663 (5th Cir. 1977)).

Defendants who argue that the evidence at trial established the existence of not one conspiracy but many

often assert that a “fatal variance” exists between the

crime charged and the proof at trial. See, e.g., United

States v. Payne, 226 F.3d 792, 795 (7th Cir. 2000); United

States v. Severson, 3 F.3d 1005, 1009-10 (7th Cir. 1993). Avila

makes such a challenge here. He argues that a fatal variance exists in this case because the government

presented evidence at his trial that was relevant only to a

conspiracy that he did not join. For example, he points

to testimony of Agents Burkhart and Reeves regarding

drugs seized or purchased in controlled buys from other

Mexican nationals in the Indianapolis area with whom

Avila claims he shared no common goal or purpose.

“A variance arises when the facts proved by the government at trial differ from those alleged in the indictment.” United States v. Stigler, 413 F.3d 588, 592 (7th Cir.

2005). We treat a conspiracy variance claim as nothing

more than a challenge to the sufficiency of the evidence

supporting the jury’s finding of a conspiracy. United

States v. Nitch, 477 F.3d 933, 936 (7th Cir. 2007), cert. denied,

127 S. Ct. 3024 (2007); United States v. Townsend, 924
No. 07-2404 9

F.2d 1385, 1389 (7th Cir. 1991). Thus, to prevail Avila must

show that (1) the evidence at trial was insufficient to

support a finding that he belonged to a single conspiracy, and (2) he was prejudiced by the variance.

Stigler, 413 F.3d at 592.

Under ordinary circumstances, “[s]ufficiency of the

evidence challenges rarely succeed because we owe

great deference to the jury’s verdict.” United States v.

Melendez, 401 F.3d 851, 854 (7th Cir. 2005). In this case,

Avila faces an even higher burden because he failed to

move for a judgment of acquittal. See United States v.

Meadows, 91 F.3d 851, 854 (7th Cir. 1996). Therefore, our

review is for plain error, and we will reverse Avila’s

conviction only if a miscarriage of justice occurred “ ‘of

such magnitude that [Avila] probably would have been

acquitted absent the error.’ ” Id. (quoting United States v.

Valencia, 907 F.2d 671, 685 (7th Cir. 1990)).

Avila argues that his conviction must be reversed

because (1) there was insufficient evidence to show that

he belonged to any conspiracy, and (2) he was prejudiced

by the admission of evidence of a large-scale conspiracy that he did not join. For the reasons that follow,

we reject both of his arguments.

1. Whether Sufficient Evidence Established that Avila Joined

a Single Conspiracy

In order to prove that Avila participated in a conspiracy,

the government must prove that he knowingly and intentionally joined in an agreement with one or more other
10 No. 07-2404

individuals to commit an unlawful act. United States v.

Gardner, 238 F.3d 878, 879 (7th Cir. 2001). We have recognized that the sale of drugs, without more, does not

constitute a conspiracy because the sale itself is a substantive crime. United States v. Clay, 37 F.3d 338, 341 (7th

Cir. 1994). Thus, “the government must prove that the

defendant conspired to commit some crime beyond that

agreement to sell drugs.” United States v. Rock, 370 F.3d

712, 714 (7th Cir. 2004).

As we have often noted, “[a]n agreement need not be

explicit; a tacit agreement may support a conspiracy

conviction.” United States v. Handlin, 366 F.3d 584, 589

(7th Cir. 2004); see also United States v. Messino, 382 F.3d 704,

709 (7th Cir. 2004). Furthermore, the government need

not present any direct evidence of the agreement; circumstantial evidence alone will suffice. United States v.

Zarnes, 33 F.3d 1454, 1465 (7th Cir. 1994). Such evidence

may include sales of large amounts of drugs, prolonged

cooperation, a level of mutual trust between the parties,

standardized dealings, and sales on a consignment or

“fronted” basis. See, e.g., Bustamante, 493 F.3d at 884-85;

United States v. Contreras, 249 F.3d 595, 599 (7th Cir. 2001);

Zarnes, 33 F.3d at 1465.

Proving that Avila joined the conspiracy alleged in the

indictment does not require that the government prove he

conspired with the individuals named in the indictment.

The key to proving a conspiracy is that the defendant

joined the agreement, not the group. Townsend, 924 F.2d at

1389-90. Thus, the government need not establish with

whom the defendant conspired. Contreras, 249 F.3d at 598.
No. 07-2404 11

It need only prove that the defendant conspired with

anyone to commit the crime charged in the indictment.

See Townsend, 924 F.2d at 1389.

Avila claims that the government failed to meet its

burden at trial because it did not prove that he conspired to commit some crime beyond an agreement to

sell drugs to Avant and Nava-Rubio. He also implies that

the “single design or purpose” defining a conspiracy

must be more specific than simply to further distribute

drugs. He cites as an example the “singular purpose of

the agreement” in Thomas, which was “to transform

this block of West 50th Place into what was essentially

an open-air drug bazaar.” 520 F.3d at 733-34. Such a

specific purpose is not required, however.

All that is necessary to establish a drug distribution

conspiracy is an understanding related to the subsequent distribution of narcotics. Clay, 37 F.3d at 341. The

government need only show an agreement that goes

beyond the individual sale between buyer and seller.

See Rock, 370 F.3d at 714.

Here, there is substantial evidence that Avila expected

and encouraged Avant and Nava-Rubio to redistribute

the drugs he had provided. Avila always fronted the

drugs to both Nava-Rubio and Avant. Nava-Rubio

testified that over the course of their relationship, Avila

fronted him 100 pounds of methamphetamine, 20 to 30

kilograms of cocaine, and 300 to 400 pounds of marijuana.

Similarly, Avant testified that Avila fronted him 3 to 4

pounds of methamphetamine per month, 5 to 6 kilograms

of cocaine per month, and 500 total pounds of marijuana.
12 No. 07-2404

Because Avila fronted these drugs in return for payment after Nava-Rubio and Avant sold them, he was

dependent upon the further resale of the drugs to make

a profit.

The evidence also established that Avila demonstrated a

high level of trust and confidence in Avant and NavaRubio. He provided both with large quantities of drugs

without requiring any payment until the drugs were

resold. In one of the intercepted calls, he told Nava-Rubio

about a car with a hidden compartment and described

how he had used it to transport drugs on a previous

occasion. It is unlikely that Avila would have acted this

way with Avant or Nava-Rubio if they were engaged in

a mere buyer-seller relationship.

Furthermore, the defendant’s own conversations with

Nava-Rubio reveal the conspiratorial nature of their

relationship. During one of the intercepted conversations,

Nava-Rubio and Avila discussed Nava-Rubio selling

the methamphetamine Avila had fronted him to a “white

guy,” and Avila told Nava-Rubio to send the money

back with Espinoza-Sarco. Given this exchange, Avila

cannot reasonably deny that he intended for the drugs to

be resold.

The large amounts of drugs, the sales on consignment,

the level of trust and confidence, and the explicit discussions of redistribution all provide overwhelming

evidence of Avila’s conspiratorial relationships with

Avant, Nava-Rubio, and Espinoza-Sarco.

In addition, the evidence supports the jury’s finding

that Avila engaged in the specific crime charged in the
No. 07-2404 13

3 One kilogram contains 1,000 grams. Thus, even one kilogram

each of methamphetamine and cocaine would exceed the

amounts charged in the indictment.

Rounded to the nearest kilogram, 45 kilograms is equivalent

4

to 100 pounds, 136 kilograms is equivalent to 300 pounds,

and 181 kilograms is equivalent to 400 pounds.

Rounded to the nearest gram, 1361 grams is equivalent to 5

three pounds and 1814 grams is equivalent to four pounds.

Rounded to the nearest kilogram, 227 kilograms is equivalent

to 500 pounds.

These estimates are conservative, using the lowest quantity 6

supported by the testimony and rounding down to the

nearest kilogram.

indictment: an agreement to distribute 500 grams or more

of a mixture or substance containing methamphetamine,

50 grams or more of methamphetamine, 500 grams or

more of a mixture or substance containing a detectable

amount of cocaine, and 100 kilograms or more of a mix- 3

ture or substance containing a detectable amount of

marijuana. The evidence established that Avila sold NavaRubio over 45 kilograms of methamphetamine, 20 to

30 kilograms of cocaine, and approximately 136 to

181 kilograms of marijuana. Avila sold Avant 1361 to 4

1814 grams of methamphetamine per month, 5 to 6 kilograms of cocaine per month, and 227 total kilograms

of marijuana. Even if Avila supplied Avant for only one 5

month, this would add up to, at a minimum, 46 kilograms of methamphetamine, 25 kilograms of cocaine,

and 362 kilograms or more of marijuana. Because this 6

clearly exceeds the amount of drugs charged in the in-
14 No. 07-2404

We will discuss the third argument in detail in the context 7

of Avila’s evidentiary challenges.

dictment, there is ample evidence to support the jury’s

verdict that Avila engaged in the charged conspiracy.

2. Whether Avila Was Prejudiced by Evidence of a Conspiracy He Did Not Join

Avila claims that he was prejudiced at trial because

the prosecution presented evidence that was relevant

only to a conspiracy that he did not join. Avila cites the

following to support his claim: (1) testimony of Agent

Burkhart that a large-scale drug organization of Mexican

nationals existed in Indianapolis and that the FBI had

seized large quantities of drugs from numerous members of that organization; (2) testimony of Agent Reeves

that he had made several undercover drug purchases

from Soto-Nava on a consignment basis; and (3) statements by Burkhart, Reeves, Avant, and Nava-Rubio that

Avila was working in a “drug dealing enterprise.” Avila 7

argues that he was prejudiced by the inclusion of this

inadmissible evidence in the government’s case. He

also argues that the errors affected his sentence.

We need not decide whether this evidence was admissible because, as described below, Avila did not suffer

any prejudice. We should note, however, that Avila’s

claims regarding the improper testimony are not entirely

without merit. Specifically, Agents Burkhart and Reeves

testified to drug activities with which Avila had little or
No. 07-2404 15

no demonstrated connection. As noted above, although

a defendant does not need to know with whom he is

conspiring to be convicted of conspiracy, Jones, 275 F.3d

at 652, co-conspirators “ ‘must have been aware of each

other and must do something in furtherance of some

single, illegal enterprise,’ ” Bustamante, 493 F.3d at 885-86

(quoting Levine, 546 F.2d at 663). We do not agree with

the government that the testimony of Agents Burkhart

and Reeves meets this standard.

For example, Agent Burkhart did not state from whom

the quantities of drugs she described were seized, nor

did she connect those drugs to Avila. Without any explanation as to the origin of the drugs seized, there is no

evidence that Avila engaged with the distributors of

these drugs in a single illegal enterprise or shared with

them some common goal. Absent this connection, the

government provided no evidence to explain how Avila

conspired to possess or distribute the seized drugs.

The testimony of Agent Reeves regarding undercover

drug purchases made from Soto-Nava was similarly

questionable. One recorded telephone call revealed a

conversation between Avila and Soto-Nava, but they

did not discuss drugs. Avant testified that he had obtained drugs from Soto-Nava and that Soto-Nava introduced him to Avila. He stated that the purpose of this

introduction was so that Avant could obtain more

drugs. However, Avant’s testimony did not establish

that Avila knew that Avant had other suppliers or that

Avila and Soto-Nava worked together in any common

enterprise. Simply demonstrating that both distributed
16 No. 07-2404

drugs to the same individuals is not sufficient to show

that they conspired together. See id.

Regardless of whether this evidence was admissible,

however, Avila cannot succeed on his claim because he

did not suffer any prejudice from its introduction at trial.

As described above, to obtain a reversal, Avila must

show that he was prejudiced by the alleged variance.

Stigler, 413 F.3d at 592. Because a variance may prejudice

a defendant both at trial and at sentencing, we analyze

the effect of the evidence on both Avila’s conviction

and sentence. See Bustamante, 493 F.3d at 887.

First, we hold that Avila’s conviction was not a result of

prejudice from the irrelevant evidence. As noted above,

because our review is for plain error, we will reverse

Avila’s conviction only if a miscarriage of justice

occurred “ ‘of such magnitude that [Avila] probably

would have been acquitted absent the error.’ ” Meadows,

91 F.3d at 854 (quoting Valencia, 907 F.2d at 685).

It is highly unlikely that Avila would have been acquitted had Agents Burkhart and Reeves been prevented

from testifying about these drug transactions or seizures. As described above, the record is replete with

evidence that Avila conspired with Avant, Nava-Rubio,

and Espinoza-Sarco to distribute large amounts of drugs.

Avila used Espinoza-Sarco to deliver drugs on his

behalf and collect the money. He “fronted” Avant and

Nava-Rubio large amounts of drugs for no payment in

advance. The testimony regarding Avila’s drug dealings

alone was enough to support the jury’s verdict.
No. 07-2404 17

Although the Guidelines range was incorrectly calculated, see 8

infra Section II.C, this was not a result of the claimed variance.

There is no evidence from the PSR that the range was

increased due to the quantities of drugs seized from other

members of the alleged conspiracy. We discuss this error in

detail later in this opinion.

Furthermore, we have previously held that a defendant

was not prejudiced by a variance where “ ‘the jury had

no need to look beyond [the] defendant’s own words in

order to convict.’ ” Bustamante, 493 F.3d at 887 (quoting

Townsend, 924 F.2d at 1411). Where the government produced recorded conversations of the defendants directly

discussing drug transactions with their co-conspirators,

we have noted that this evidence alone was sufficient to

support the jury’s finding. See id.; Townsend, 924 F.2d

at 1411. Similarly here, the jury could hear for itself that

Avila discussed with Nava-Rubio the sale of drugs to

the “white guy.” This evidence alone was sufficient to

support the jury’s finding, and we see no prejudice from

admitting the testimony of Agents Burkhart and Reeves.

Nor are we persuaded that Avila was prejudiced in his

sentence. Although the PSR recited the quantities of drugs

that were seized from the entire drug organization, these

quantities were not factored into the Guidelines range

applied. Instead, the range was apparently based on 8

the quantities of drugs listed in paragraph 13 of the PSR—

the drugs that Avila supplied to Avant.

Avila also claims that the court relied on the improper

evidence when it noted that the sentence “reflects the
18 No. 07-2404

defendant’s high level of involvement in the conspiracy,

as well as his repeated violations of the law and his role

in the distribution of huge quantities of drugs in central

Indiana and elsewhere.” (Sent. Hr’g at 25.) However, this

does not demonstrate that the court based Avila’s sentence on anything other than the drugs he supplied to

Avant and Nava-Rubio, and Avila’s criminal history.

The quantities of drugs in those transactions were substantial, and there is no doubt that Avila played a key

role in orchestrating the deals.

We also are unconvinced by Avila’s argument that he

was prejudiced in his sentence because the prosecutor

urged the judge to rely on improper evidence. Although

the prosecutor advocated a long sentence because of “the

amount of harm [Avila] did by being part of this conspiracy that pumped so much poison into our community,”

and to avoid “unwarranted disparities” with his alleged

co-conspirators, Avila cites nothing from the judge indicating that he relied on these arguments in imposing

the sentence. The judge’s comments during sentencing

were well-supported by Avila’s own actions, his prior

criminal history, and his demonstrated disrespect for

the law. Nothing in the sentencing hearing suggests that had the judge refused to admit the improper

evidence, he would have imposed a different sentence.

In sum, we find ample support for the jury’s verdict that

Avila was a member of the conspiracy charged in the

indictment. The record contains direct testimony that

Avila himself distributed drugs in quantities that exceeded

those charged in the indictment. Furthermore, Avila’s
No. 07-2404 19

relationships with Avant and Nava-Rubio reveal that

they were not simply engaged in a buyer-seller relationship. Because this evidence supports the jury’s verdict,

Avila was not prejudiced at trial by the admission of

any evidence of a separate conspiracy. Nor was he prejudiced at his sentencing, because the judge’s reasoning

was well-supported by evidence of drug transactions

directly attributable to Avila.

B. Avila’s Evidentiary Challenges

Avila also challenges the testimony of several government witnesses as irrelevant and unduly prejudicial.

Ordinarily, we review a district court’s evidentiary

rulings for an abuse of discretion. United States v. Hale,

448 F.3d 971, 985 (7th Cir. 2006). However, Avila never

objected to any of the challenged testimony at trial. Where

a party has failed to raise an objection at trial, our

review is only for plain error, United States v. Swan, 486

F.3d 260, 263 (7th Cir. 2007), and we will reverse only if

the errors resulted in an “actual miscarriage of justice”

such that the defendant “probably would have been

acquitted but for the erroneously admitted evidence,”

United States v. Price, 418 F.3d 771, 779 (7th Cir. 2005)

(quotations omitted).

First, Avila claims that testimony of Sergeant Wildauer

regarding the use of hidden compartments in drug trafficking was irrelevant and unduly prejudicial. Next, he

claims that several witnesses gave prejudicial and improper legal opinions that Avila participated in the

charged conspiracy. He claims that the cumulative effect
20 No. 07-2404

of these errors deprived him of a fair trial. We address

each argument in turn.

1. Testimony of Sergeant Wildauer

At trial, the government called Sergeant Wildauer to

testify to the use of hidden compartments in drug trafficking. Wildauer explained several photographs of hidden

compartments that he had discovered in cars, all of which

came from other cases he had investigated. He also explained how “drug cartels” used this method to transport

drugs.

Expert testimony may be admitted if the witness’s

specialized knowledge will help the trier of fact to understand the evidence. Fed. R. Evid. 702; United States v.

Nobles, 69 F.3d 172, 183 (7th Cir. 1995). “The operations of

drug dealers are generally an appropriate subject for

expert testimony. Because the clandestine nature of

narcotics trafficking is likely to be outside the knowledge of the average layman, law enforcement officers

may testify as experts in order to assist the jury in understanding these transactions.” Nobles, 69 F.3d at 183 (quotations and citations omitted).

In United States v. Hubbard, 61 F.3d 1261 (7th Cir. 1995),

we held that the district court did not abuse its discretion in allowing a police officer who was not directly

involved in the defendant’s case to testify about dealers’

typical use of hidden compartments in automobiles to

transport narcotics. Id. at 1274-75. We noted that the

expert in Hubbard did not offer an opinion regarding the
No. 07-2404 21

defendant’s conduct, but merely spoke in general terms.

Id. at 1275. Finally, we stated that nothing in the

expert’s testimony “foreclosed or hampered the defense in

offering innocent explanations for evidence that [the

expert] had identified as consistent with narcotics trafficking.” Id.

Avila’s case is similar to the situation we addressed

in Hubbard. Nava-Rubio and Avant testified that Avila or

his agents transported large amounts of drugs using

hidden compartments. The government produced

Sergeant Wildauer to help the jury understand this evidence and how it related to the typical operations of drug

dealers. Thus, the evidence was relevant in that it

helped to explain other testimony.

Even relevant evidence may be excluded if the danger

of unfair prejudice outweighs its probative value. Fed. R.

Evid. 403. “Evidence is unfairly prejudicial only if it

will induce the jury to decide the case on an improper

basis, commonly an emotional one, rather than on the

evidence presented.” United States v. Pulido, 69 F.3d 192,

201 (7th Cir. 1995) (quotations omitted). This is not the

case here. Nothing about Wildauer’s testimony was so

prejudicial that it would cause the jury to decide the

case on an improper basis. As in Hubbard, Wildauer

never offered an opinion regarding Avila’s specific involvement, and Avila had every opportunity to crossexamine him. Considering the wealth of evidence against

Avila, it is unlikely that the jury convicted him on the

basis of the testimony about hidden compartments or a

comment regarding “drug cartels.”
22 No. 07-2404

2. The “Legal Opinions” of Several Witnesses

The primary issue at trial was Avila’s identity. During

opening statements, Avila’s counsel stated:

In this case . . . the government’s going to put on

a lot of evidence showing that there was a conspiracy. . . . The question here, though, is whether

Martin Avila was a part of that conspiracy or not.

Martin Avila denies being any part of that conspiracy. . . . He will tell you that he does not know

Rene Nava-Rubio, has never had any contact with

him, has never had any dealings with that man.

Now, there was somebody using the name

Martin Avila in this conspiracy, but the question

that you have to answer is whether this man is the

one that was doing that. Just because the name

Martin Avila is on the conspiracy doesn’t mean

that this man is the man that was doing that work.

To combat this argument, the government asked several

witnesses—Special Agent Burkhart, Nava-Rubio, and

Avant—to identify the defendant and state whether he

was the one who participated in the “drug trafficking

conspiracy,” “drug dealing enterprise,” or “drug trafficking organization.” They all answered affirmatively.

It is true that it would be improper for the prosecutor

to elicit testimony about whether Avila was involved in a

“conspiracy” or the like, because it implies a legal conclusion. However, with respect to Nava-Rubio and

Avant, it is apparent from the record that the goal of this
No. 07-2404 23

questioning was to establish the identity of the defendant

as the individual who sold them drugs. Even Avila’s

counsel referred to the interactions among these individuals as “a conspiracy.” Although the form of the prosecutor’s questions leaves much to be desired, Avila never

objected at trial. The prosecutor simply was trying to get

to the ultimate issue of Avila’s identity, a line of questioning that was entirely proper and, indeed, necessary

given Avila’s defense. We cannot say that but for the

imprecisely worded questions Avila would have been

acquitted.

With respect to Special Agent Burkhart, the government concedes on appeal that her testimony was improper.

Burkhart identified Avila from a photograph as the

individual who took part in the conspiracy and explained

that the photo accurately reflected his appearance

from 2000 through 2002. Cross-examination revealed,

however, that she had not met Avila until after he was

arrested in 2005. Nonetheless, we fail to see how this

could have prejudiced Avila. The jury was fully aware of

the inaccuracies in Burkhart’s testimony, because they

were revealed on cross-exam. In addition, as we have

previously established, Avila never objected, and ample

evidence properly supported his conviction. Thus, the

error was harmless.

3. Cumulative Errors

Avila argues that even if the individual effects of these

errors were harmless, their cumulative effect denied him

his right to a fair trial. We have noted that “[c]umulative
24 No. 07-2404

errors, while individually harmless, when taken

together can prejudice a defendant as much as a single

reversible error and violate a defendant’s right to due

process of law.” United States v. Allen, 269 F.3d 842, 847

(7th Cir. 2001). To demonstrate cumulative error, Avila

must show that (1) at least two errors were committed

during the trial, and (2) these errors “so infected the

jury’s deliberation that they denied [Avila] a fundamentally fair trial.” Alvarez v. Boyd, 225 F.3d 820, 824 (7th

Cir. 2000). We must use care not to magnify the

importance of errors that had little significance in the trial

setting. Id. at 825. We will reverse only if “the effect of the

errors, considered together, could not have been

harmless . . . [or] that but for the errors, the outcome of

the trial probably would have been different.” Id. (citation

omitted).

We doubt that the jury’s verdict would have been

different even if the trial court had excluded all of the

testimony that Avila now challenges. As we have

already noted numerous times, overwhelming evidence

properly supported Avila’s conviction. Avant and NavaRubio described relationships with Avila that were

clearly conspiratorial, and their testimony was bolstered

by recorded conversations. Even the cumulative effect

of any potential errors did not deny Avila a fair trial.

C. Avila’s Sentence

Avila’s final arguments on appeal involve his sentence.

He claims that his sentence was based on an incorrect

Guidelines range, and that the district court improperly
No. 07-2404 25

calculated his criminal history points. Because Avila failed

to challenge the PSR or raise these arguments before

the district court, review is again for plain error, and a

remand is warranted only if the error affected Avila’s

substantial rights. United States v. Garrett, 528 F.3d 525,

527 (7th Cir. 2008).

Avila first argues that the district court applied the

wrong base offense level. “A sentence based on an incorrect Guideline range constitutes an error affecting substantial rights and can thus constitute plain error, which

requires us to remand unless we have reason to believe

that the error did not affect the district court’s selection

of a particular sentence.” Id. The PSR computed that

Avila had distributed drugs with a marijuana

equivalency rate of 24,234 kilograms. The PSR recommended, and the district court applied, a base offense

level of 38. With seven criminal history points, this

resulted in a Guidelines range of 324-405 months. However, the Guidelines clearly establish that the correct

base offense level for between 10,000 and 30,000 kilograms

of marijuana is 36. This would have resulted in a Guidelines range of 262-327 months.

The district court imposed a 396-month sentence, which

was within the incorrectly applied Guidelines range.

During sentencing, the judge gave no indication that he

would have imposed the same sentence had the range

been lower. This error requires remand.

The government argues that this error was harmless

because the evidence at trial supported a finding that

Avila distributed the equivalent of more than 30,000
26 No. 07-2404

If the correct base offense level of 36 had been applied, 7 9

criminal history points would result in a range of 262-327

months, while 6 criminal history points would result in a

range of 235-293 months.

kilograms of marijuana. However, the district court

apparently did not rely on that evidence. It found that

Avila distributed the equivalent of 24,234 kilograms of

marijuana, and neither the government nor Avila objected

to that finding. It appears that the district court simply

applied the wrong range, which constitutes plain error.

Avila also argues that the district court miscalculated his

criminal history points. At sentencing, Avila received a

total of seven criminal history points, which resulted in a

Guidelines range of 324-405 months. Six criminal history

points would have resulted in a range of 262-327 months.9

In calculating Avila’s criminal history points, the PSR

assigned two criminal history points for each of his two

prior controlled substance convictions. Avila was sentenced for both convictions on the same day. In case 94 CR

1983, he received a sentence of sixth months’ custody. In

case 94 CR 670 he received a sentence of “two years

custody suspended upon completion of sentence in 94 CR

1983.”

Two criminal history points are imposed for each prior

sentence of imprisonment of at least sixty days. U.S.

Sentencing Guidelines Manual § 4A1.1(b) (2007). However,

where the imposition or execution of a sentence was

totally suspended, only one criminal history point is

imposed. Id. § 4A1.2(a)(3). Because the district court did
No. 07-2404 27

not address whether Avila’s sentence in case 94 CR 670

constitutes a “totally suspended” sentence within the

meaning of § 4A1.2(a)(3), we have in front of us only the

limited information available in the PSR. For this

reason, we decline to decide this issue for the first time

on appeal. Instead, on remand the district court should

inquire into the circumstances of the prior sentence

and decide whether it warrants one or two criminal

history points.

III. CONCLUSION

We AFFIRM Avila’s conviction and REMAND for

resentencing with instructions to (1) consider the Guidelines range that properly reflects the amount of drugs

Avila distributed and (2) determine whether the sentence in case 94 CR 670 was “totally suspended” within

the meaning of U.S.S.G. § 4A1.2(a)(3).

3-6-09