1 This case originally was consolidated for purposes of briefing

and disposition with United States v. David Duran, No. 03-2968.

That consolidation has been vacated.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-25061

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANK DURAN,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 01 CR 757—Ronald A. Guzman, Judge.

____________

ARGUED APRIL 6, 2004—DECIDED MAY 10, 2005

____________

Before RIPPLE, KANNE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. In December of 2002, a superseding

indictment charged Frank Duran, and several others, with

violations of various federal narcotics and firearms statutes.

These charges arose out of a drug-distribution conspiracy in

Chicago.
2 No. 03-2506

Mr. Duran was tried before a jury and was found guilty of

all charges against him, including conspiracy to possess

with the intent to distribute a controlled substance, see

21 U.S.C. §§ 841(a)(1) & 846; possession with the intent to

distribute a controlled substance, see 21 U.S.C. § 841; possession of a firearm, “namely, a Beretta 9 mm semiautomatic

handgun,” in furtherance of a drug trafficking crime, see

18 U.S.C. § 924(c)(1)(A); and use of a communications

facility to facilitate the commission of a narcotics offense, see

21 U.S.C. § 843(b). Mr. Duran has appealed his conviction

and his sentence. We held this case in abeyance pending the

Supreme Court’s decision in United States v. Booker, 125 S.

Ct. 738 (2005). For the reasons set forth in the following

opinion, we now affirm the judgment of conviction. However, in light of Booker, 125 S. Ct. 738, and this court’s

decision in United States v. Paladino, 401 F.3d 471, 2005 WL

435430 (7th Cir. Feb. 25, 2005), we order a limited remand of

Mr. Duran’s sentence.

I

BACKGROUND

A. Facts

In January of 2001, the Federal Bureau of Investigation

(“FBI”) began an investigation into a Chicago drug ring after an informant alerted the FBI that Mr. Duran and others

were distributing narcotics. Through wiretaps, controlled

buys and informants, the Government was able to obtain a

great deal of evidence about the conspiracy.

Mr. Duran decided to go to trial. His brother, David Duran,

however, decided to plead guilty and to testify against his

brother. A number of Mr. Duran’s other cohorts, including

Beatriz Gamez, Mr. Duran’s long-time, live-in girlfriend and
No. 03-2506 3

the mother of his three children, as well as William Bertucci

and Andrew DiPalma, also agreed to testify against Mr.

Duran. At Mr. Duran’s trial, the evidence consisted of

recorded telephone conversations, testimony from lawenforcement agents, testimony from cooperating witnesses

and physical evidence seized during searches following the

arrests of the co-conspirators in 2001. The evidence was

extensive, and we shall give only the broad outline.

Beginning no later than 1999 and continuing through

2001, David Duran obtained marijuana and cocaine from a

number of drug suppliers, including Danny Galacia. These

purchases from suppliers often were made on credit. David

Duran’s testimony and a recorded telephone conversation

established that, at least on one occasion, Mr. Duran transported drugs and guns from Galacia’s house in Texas to

Chicago.

David would sell some of these drugs directly to his “own

customers.” David would also sell some to Mr. Duran and

give some to Mr. Duran on credit, who dealt to his “own

customers.” David testified that either two to three times a

week or a month, he would provide Mr. Duran with an

eighth or a quarter kilo of cocaine so that Mr. Duran could

service his customers. Also, “[w]hen it was in season,”

David would front Mr. Duran “on average” between “five

and ten pounds” of marijuana “[m]aybe once or twice a

week.” Tr. at 551. Gamez, Mr. Duran’s girlfriend, helped

Mr. Duran service his customers. For example, once or twice

a week in June and July of 2001, Gamez distributed drugs to

Mr. Duran’s customers. Also, Gamez testified, customers

would come to their house to collect drugs and to make

payments. Gamez testified regarding a journal she kept, in

which she recorded the amounts owed to Mr. Duran by his

customers. Gamez also would record when David took Mr.

Duran’s cocaine to cover a shortage for a customer.
4 No. 03-2506

DiPalma, who was cooperating with the FBI, made two

controlled buys from Mr. Duran.

Evidence established that the brothers also worked in

tandem. DiPalma testified he was able “to call either David

or Mr. Duran for the cocaine” and if one was not available,

he would call the other. Tr. at 25; see also Tr. at 26 (explaining that, “[i]n the last couple of years I would say I did more

business with Frank, but generally, I would call one

[brother], and if he didn’t have the cocaine, I would call the

other brother,” and further explaining that, at times, David

referred him (DiPalma) to Frank and vice versa). In addition, Mr. Duran also served as a drug delivery person for

David. David testified that, at various times, Mr. Duran was

delivering drugs “two to three times a week” for David for

a fee; recorded telephone conversations regarding Mr. Duran’s

deliveries on behalf of David were introduced at trial. Tr. at

543. Bertucci, one of David’s long-time customers, testified

at trial that Mr. Duran delivered drugs to him on behalf of

David on one occasion.

On June 4, 2001, David was stopped by Chicago Police

Officer Walsh after Officer Walsh became aware that David

was going to make a deal. Crack cocaine was found on the

front seat of David’s car, and David attempted to bribe

Officer Walsh. As part of the investigation, Officer Walsh

played along and ultimately got David to agree to give a

cash bribe; the two met later and David paid the officer.

In recorded telephone conversations between David and

Mr. Duran introduced at trial, David told Mr. Duran about

being stopped. He also told Mr. Duran that he needed to

move drugs, and the two discussed utilizing a car that the

police would not recognize. FBI Special Agent Melton testified about a different incident on June 19, 2001, when he

stopped a truck that David was driving and found David

with approximately $20,000 in cash. David told Agent
No. 03-2506 5

Melton that he owned the truck but that “the license plate

on the vehicle belonged to his brother, Frank.” Tr. at 778-79.

There was also a significant amount of evidence introduced about the role of the “Bat Cave” or “Eagle’s Nest,” an

apartment located at 3743 South Damen. This location was

utilized to advance the distribution activities. Gamez

testified this was “an apartment that [Frank Duran] and his

brother used to rent . . . to hold the drugs at.” Tr. at 222.

Gamez further testified that Mr. Duran would stay at the

Bat Cave “a couple of time[s] a week or month” and explained that Mr. Duran told her that the brothers “needed

to pretend that they lived there.” Tr. at 298. Gamez testified

she never went to this apartment and was not sure where it

was. David testified that, among other purposes, this apartment was utilized to hide and store drugs and drug-dealing

paraphernalia and to measure drugs. David specifically

testified that Mr. Duran would leave him money in the

apartment for drugs that David had given him. See Tr. at

554-55. David also testified that Mr. Duran had a key “[a]t

times.” Tr. at 555. When the police searched the Bat Cave,

they uncovered cocaine, scales with white powder residue,

a vitamin used to cut cocaine, a bulletproof vest, a flash

suppressor and three weapons. One of the weapons that is

particularly relevant to this appeal was a 9 mm semiautomatic pistol (the “Beretta”) found in the pocket of a bathrobe hanging on the door in the apartment’s bathroom.

David testified that this weapon was his and that he kept it

“[f]or protection.” Tr. at 562. In addition to searching the Bat

Cave, law enforcement searched Mr. Duran’s house, David’s

house, where he lived with his girlfriend (1710 West

Cermak), and David’s sister’s apartment, where David had

stayed at different times. At these locations, they discovered

drugs, drug-dealing paraphernalia and a number of other

weapons and weapons accessories.
6 No. 03-2506

B. District Court Proceedings

In January of 2003, Mr. Duran went to trial and was found

guilty of all charges against him, including conspiracy to

possess with the intent to distribute a controlled substance

(Count 1), see 21 U.S.C. §§ 841(a)(1) & 846; possession with

the intent to distribute a controlled substance (Counts 6 and

7), see 21 U.S.C. § 841; possession of a firearm, “namely, a

Beretta 9mm semiautomatic handgun,” in furtherance of a

drug trafficking crime (Count 9), see 18 U.S.C. § 924(c)(1)(A);

and use of a communications facility to facilitate the

commission of a narcotics offense (Count 15), see 21 U.S.C.

§ 843(b).

Mr. Duran was sentenced to 262 months for Count 1,

240 months for Counts 6 and 7, and 8 months on Count 15,

with the sentences to run concurrently. He also was sentenced to a consecutive 60-month sentence for Count 9.

II

DISCUSSION

Mr. Duran challenges various aspects of his conviction.

These issues fall into four broad categories. We shall consider each in turn. Then we shall address Mr. Duran’s

challenge to his sentence.

A. Evidentiary Challenges

Mr. Duran’s first challenge is to the district court’s admission of certain evidence. Our review of evidentiary decisions

is limited. “We afford great deference to the trial court’s

determination of the admissibility of evidence because of the

trial judge’s first-hand exposure to the witnesses and the

evidence as a whole, and because of the judge’s familiarity
No. 03-2506 7

with the case and ability to gauge the impact of the evidence

in the context of the entire proceeding.” United States v. Van

Dreel, 155 F.3d 902, 905 (7th Cir. 1998). This principle is

reflected in our approach to appellate review of evidentiary

submissions. If a timely objection at trial was made, we

review the district court’s ruling under an abuse of discretion standard. See United States v. Wilson, 237 F.3d 827, 834

(7th Cir. 2001). Even when we conclude that the court erred

in its decision, “the court will grant a new trial only if the

error had a ‘substantial influence over the jury,’ and the

result reached was ‘inconsistent with substantial justice.’ ”

United States v. Walton, 217 F.3d 443, 449 (7th Cir. 2000)

(citation omitted). However, much of the evidence Mr.

Duran now challenges was not the subject of an objection at

trial; in such a situation, our review is limited to searching

for a plain error. See United States v. Wynn, 845 F.2d 1439,

1442 (7th Cir. 1988). To reverse under plain error review, we

must find “(1) an error has occurred, (2) it was ‘plain,’ (3) it

affected a substantial right of the defendant, and (4) it

seriously affected the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Gibson, 356 F.3d

761, 765 (7th Cir. 2004) (internal quotation marks and

citations omitted); see also Fed. R. Crim. P. 52(b).

 Mr. Duran identifies “eight categories” of admitted evidence that he claims were irrelevant, misleading or substantially more prejudicial than probative under Federal Rules

of Evidence 402 and 403. Rule 402 instructs that all relevant

evidence is admissible, but “[e]vidence which is not relevant

is not admissible.” Evidence is relevant if it has “some

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” United

States v. Liporace, 133 F.3d 541, 544 (7th Cir. 1998) (internal

quotation marks and citation omitted). Rule 403 further
8 No. 03-2506

explains: “Although relevant, evidence may be excluded if

its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence.” “[M]ost evidence is, by its very nature, prejudicial, and that evidence must be unfairly prejudicial to be

excluded.” United States v. Neeley, 189 F.3d 670, 682 (7th Cir.

1999) (internal quotation marks and citation omitted). The

eight categories of evidence that Mr. Duran claims should

have been excluded are: (1) “evidence of David’s attempt to

bribe his way out of prosecution,” (2) “Special Agent

Melton’s testimony regarding stopping David and finding

him with more than $20,000 in cash,” (3) certain evidence

recovered at David’s house (1710 West Cermak), (4) two

firearms recovered at David’s sister’s residence, (5) evidence

recovered from the Bat Cave, (6) the testimony of William

Bertucci, (7) intercepted calls between David Duran and

David Zuniga, and (8) matters testified to by David that

have nothing to do with Mr. Duran. Appellant’s Br. at 21-28.

Before delving into the details of each particular “category” of evidence, Mr. Duran’s challenge is best considered

globally. Mr. Duran’s theme for this section of his argument

is that “Frank did not get his day in court; he got David’s.”

Appellant’s Br. at 19. He framed the question presented to

this court as follows: “Whether evidence of crimes committed by a co-conspirator outside the scope of the conspiracy

so tainted the proceeding that substantial justice requires a

new trial.” Appellant’s Br. at 2. At bottom, he believes these

eight “categories” of evidence involving David were not

connected to the conspiracy in which Mr. Duran was

involved; it was David’s drug dealing alone. Although

Mr. Duran knew about David’s dealings, he did not intend

to join in all of David’s individual activities. See United States
No. 03-2506 9

v. Townsend, 924 F.2d 1385, 1392 (7th Cir. 1991) (explaining

that mere knowledge of illegality does not equate with

agreement to join illegality). Thus, submits Mr. Duran, evidence of David’s individual dealings—including dealing

with his “own customers,” bribing the police and keeping

guns— were not relevant to any conspiracy in which

Mr. Duran might have participated. In his view, permitting

the jury considering his criminal liability to hear these

accounts was prejudicial and rendered his trial fundamentally unfair.

We think that Mr. Duran’s challenges fail to appreciate the

breadth of conspiracy liability. “To join a conspiracy . . . is

to join an agreement, rather than a group.” Id. at 1390.

“Proving a conspiracy under 21 U.S.C. § 846 requires that

(1) two or more people agreed to commit an unlawful act

and (2) the defendant knowingly and intentionally joined in

that agreement. No overt act is required.” United States v.

Thornton, 197 F.3d 241, 254 (7th Cir. 1999). Once the defendant is established as a co-conspirator, “[t]he scope of [his]

liability is determined by the scope of the agreement”

among the co-conspirators. United States v. Plescia, 48 F.3d

1452, 1461 (7th Cir. 1995). “[W]here there is one agreement,

a defendant who agrees to conspire will be held liable for

those acts of co-conspirators that were in furtherance of the

conspiracy.” United States v. Edwards, 945 F.2d 1387, 1395 (7th

Cir. 1991). This can be true even if the acts in furtherance of

the conspiracy were committed before the defendant/coconspirator joined the conspiracy, see id.; even if the

defendant/co-conspirator did not know the person performing the acts that furthered the conspiracy, see United States v.

Monroe, 73 F.3d 129, 132 (7th Cir. 1995); and, importantly to

this case, even if the defendant/co-conspirator did not

know specifically that the acts were going to be performed,

see United States v. Bullis, 77 F.3d 1553, 1564 (7th Cir. 1996).
10 No. 03-2506

The primary limiting factor to this powerful principle of

shared liability is that the act be “reasonably foreseeable”

from the conspiratorial agreement. Id.

Mr. Duran’s evidentiary challenges—and, indeed, much

of his appeal—necessarily rest on the assumption that

Mr. Duran participated in a narrow conspiracy that did not

implicate David’s activities in full. In this vein, Mr. Duran

argues that, although Mr. Duran may have known of David’s

dealings, that is not sufficient to prove Mr. Duran joined a

conspiracy encompassing those activities. See United States

v. Torres-Ramirez, 213 F.3d 978, 982 (7th Cir. 2000) (“Knowing

of a conspiracy differs from joining a conspiracy.”). However, the evidence of record certainly supported the conclusion that Mr. Duran not only knew of but also had joined a

very broad drug-dealing conspiracy in the Chicago area that

encompassed David’s activities as presented to the jury. The

district court was on solid ground in permitting the jury to

consider this evidence. Indeed, in telling fashion, Mr. Duran

explicitly has disclaimed any challenge to the sufficiency of

the evidence to establish the existence of the conspiracy or its

scope. See Appellant’s Br. at 20 n.1. Moreover, the jury

instructions specifically presented the jury with Mr. Duran’s

theory that “[a] defendant’s association with conspirators is

not by itself sufficient to prove his participation or membership in a conspiracy,” Tr. at 898, yet the jury still convicted.

To be sure, as Mr. Duran notes, David appears to have

been the most active participant in the conspiracy. The fact

that Mr. Duran’s role was lesser than David’s, however,

does not negate or mitigate Mr. Duran’s conspiratorial

liability for David’s acts. See United States v. Almanza, 225

F.3d 845, 846 (7th Cir. 2000) (“Anyone who agrees to join a

criminal undertaking is a conspirator, and he is liable for all

the criminal acts of the conspiracy that are foreseeable to

him, regardless of how large or small his own role is. The
No. 03-2506 11

result is that a minor participant in a major conspiracy is

potentially subject to very severe punishment.” (citations

omitted)). Mr. Duran notes that both he and David each

technically had their “own customers,” but there also was

ample evidence to establish they worked in tandem in servicing each other’s customers. Furthermore, the Government

presented evidence that the two worked together to keep the

drug-dealing conspiracy operating generally. For instance,

they covered for each other when a brother could not serve

adequately a customer. Mr. Duran also made deliveries for

David. Because David and Mr. Duran were in a conspiracy

to deal drugs in Chicago, any of David’s activities that were

reasonably foreseeable from that broad agreement were, as

a matter of law, Mr. Duran’s activities. Accordingly, they

were directly relevant to Mr. Duran’s case and their admission was not even error, much less abuse of discretion or

plain error.

With these principles in mind, we turn to Mr. Duran’s

individual challenges. First, he contends that the “evidence

of David’s attempt to bribe his way out of prosecution” is

“outside the scope of the conspiracy” in which Mr. Duran

participated. Appellant’s Br. at 21. The admission of this

evidence was not objected to at trial. Therefore, our review

is for plain error, and we can find none. In any conspiracy,

it is reasonably foreseeable that co-conspirators will attempt

to fend off law enforcement in order to keep the conspiracy

going. See United States v. Thompson, 286 F.3d 950, 964 (7th

Cir. 2002) (“[A] defendant may be held criminally responsible for any act committed in furtherance of the conspiracy,

including acts taken to prevent apprehension.”). This is what

occurred here; the FBI was aware of the conspiracy, and

David was trying to avoid apprehension. The fact that the

drugs Officer Walsh located in David’s car consisted of

cooked crack cocaine and not powder cocaine also does not

render David’s efforts outside the conspiracy. First, although
12 No. 03-2506

2 “Transcript” refers to the transcript of the recorded conversation entered into evidence at trial. Collectively, these transcripts

are located at R.275.

the Government removed references to crack cocaine in the

charges sent to the jury, there was evidence to establish that

Mr. Duran was part of David’s crack business as well. See

Transcript 362

 (Mr. Duran taking an order for crack cocaine).

Further, it is unrealistic to believe that this bribery was an

attempt by David “to avoid prosecution for a bag of crack

cocaine the officer is holding right there, right then.” Reply

Br. at 8. David’s own words tell the story; he called and told

Mr. Duran the police had pulled him over and “you need to

get away from that . . . right now and get over and talk to

me.” Transcript 15 at 2. After paying the bribe, David called

Mr. Duran and told him that he recognized the officer as an

officer who had been hanging around. See Transcript 17.

Indeed, David noted that Mr. Duran had followed the

officer at some point. See id. at 3 (David: “Remember the one

that you were following the other day?” Frank: “Yeah, Yeah,

Yeah.”). Later that night, David called and told Mr. Duran

that drugs needed to be moved and the two discussed

finding a car that the police could not detect. See Transcript

18. The two met later that night. See Transcript 19. The

district court acted well within its discretion in admitting

the evidence and allowing the jury to decide that Mr. Duran

was working with David to keep law enforcement from

ending the drug-dealing ring. Finally, because David’s effort

to avoid apprehension was a reasonably foreseeable aspect

of the conspiracy, it is irrelevant that “[n]o evidence indicated an agreement between David and Mr. Duran to pay

this, or any, bribe.” Appellant’s Br. at 21. In short, David’s

attempt to avoid apprehension was part of the conspiracy in

which Mr. Duran participated and was reasonably foresee-
No. 03-2506 13

3 We note that in one of the transcripts relating to this attempt to

avoid apprehension, Mr. Duran is heard punishing his daughters.

That is certainly irrelevant, but, given its brevity in the transcript

and its minor significance in the scheme of the overall evidence,

the resulting prejudice, if any, does not concern us.

able from that conspiracy; there was no error, much less

plain error, in the admission of this evidence.3

Mr. Duran’s second challenge is to “Special Agent Melton’s

testimony regarding stopping David and finding him with

more than $20,000 in cash.” Appellant’s Br. at 22. Mr. Duran

claims this evidence was irrelevant “as outside the scope of

the conspiracy.” Id. at 23. Because there was no objection to

this evidence at trial, we review for plain error. We cannot

find plain error. We have explained under similar facts that

this type of “cash admitted into evidence [is] relevant”

because it shows co-conspirators “were involved in a largescale [drug] conspiracy.” United States v. Davis, 838 F.2d 909,

921 (7th Cir. 1988). Even assuming, as Mr. Duran argues,

that there is a possibility that the cash was attributable to

some activities of David that were outside the conspiracy

with Mr. Duran, we further have explained that the fact that

one or both of the co-conspirators “were involved in other

criminal activity that may have contributed to the amount

of cash goes only to the weight, not the admissibility, of the

evidence.” Id.

Mr. Duran’s third challenge is to the admission of the

evidence recovered at David’s house at 1710 West Cermak,

including two firearms and a substantial amount of substance purported to be marijuana. Mr. Duran’s challenge is

based on relevance and undue prejudice. Mr. Duran objected to this evidence at trial; accordingly, our review is

governed by the abuse of discretion standard.
14 No. 03-2506

4 Mr. Duran also challenges the fact that the Government showed

the weapons were illegally possessed. However, the jury is en-

(continued...)

We cannot say the district court abused its discretion in

determining that the guns were relevant. Nor can we say

that the admission of this evidence caused undue prejudice.

Part of the conspiracy was conducted out of David’s house;

this fact is clear not only from the evidence that law enforcement recovered there but also from evidence that showed

Mr. Duran went to David’s house and picked up a quarter

kilo of cocaine to deliver for David. See Tr. at 544-45; see also

United States v. Nava-Salazar, 30 F.3d 788, 798 (7th Cir. 1994)

(upholding admission of drug-dealing evidence from one

co-conspirator’s house against other co-conspirators because

the evidence was relevant to show the charged conspiracy).

Specifically as to the firearms, we have explained that

firearms “are recognized as tools of the drug trade; thus,

courts have sustained the admission of weapons evidence in

narcotics cases because the possession of a weapon is often

a hallmark of drug trafficking.” United States v. Hubbard, 61

F.3d 1261, 1270 (7th Cir. 1995). Ample testimony established

the role of weapons in this conspiracy. See Tr. at 562 (David’s testimony regarding keeping the Beretta for “protection”); id. at 564-65 (David’s testimony that Danny Galacia

had given guns to Mr. Duran); id. at 299, 304-05 (Gamez’s

testimony regarding Mr. Duran’s gun, ammunition and

silencer kept at their home). We also cannot say the probative value of this evidence was “substantially outweighed by

the danger of unfair prejudice,” Fed. R. Evid. 403 (emphasis

added); Mr. Duran’s contention “that the government

introduced ‘too much’ relevant evidence” is without merit.

United States v. Neeley, 189 F.3d 670, 683 (7th Cir. 1999).4
No. 03-2506 15

4 (...continued)

titled to consider the legality of the possession in order to draw

the inference that illegally possessed guns are more likely used

for illegal purposes. Cf. United States v. Castillo, Nos. 02-3584 &

02-4344, 2005 WL 1023029, at *8 (7th Cir. May 3, 2005) (explaining, consistent with numerous circuits, that the status of the

possession is one factor the jury can consider when deciding

whether a gun was possessed “in furtherance of” a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)).

The same analysis applies to Mr. Duran’s overlapping

fourth contention that the two guns recovered at David’s

sister’s apartment should not have been admitted. However,

having reviewed the parts of the record to which the

Government has directed our attention, we find that the

Government presented a dearth of evidence to connect

David’s sister’s apartment and/or the guns found therein to

the conspiracy. It appears that David stayed there at times.

However, Mr. Duran’s brief suggests the Government did

not recover any drugs or drug paraphernalia from this

residence, and the Government offers nothing to rebut that

contention. Therefore, the guns’ relevance is highly strained,

and its probative value, if any, was substantially outweighed

by its prejudice. Regardless, the erroneous admission of the

two guns, when numerous others appropriately were admitted, could not have had a “substantial influence over the

jury,” and this evidence did not transform Mr. Duran’s trial

into one “inconsistent with substantial justice.” Walton, 217

F.3d at 449 (internal quotation marks and citation omitted).

Mr. Duran’s fifth objection—that all the evidence recovered from the Bat Cave should not have been admitted—

was not made at trial, and, therefore, we review for plain

error. The evidence from the Bat Cave was relevant and

admissible for at least two reasons. First, the evidence

revealed that the Bat Cave was headquarters of the conspir-
16 No. 03-2506

5 Mr. Duran also argues that the parts of the recorded conversations between David Zuniga and David Duran containing Zuniga’s

voice were hearsay not within Federal Rule of Evidence

801(d)(2)(E), the co-conspirator exception to the hearsay rule. This

court, however, has held that a third-party’s voice (here, David

Zuniga’s) on a taped conversation with a co-conspirator’s (here,

David Duran’s) is necessary and admissible context to the coconspirator’s statements. See United States v. Gajo, 290 F.3d 922,

930 (7th Cir. 2002); United States v. Davis, 890 F.2d 1373, 1380 (7th

Cir. 1989).

acy in which David and Mr. Duran participated. See, e.g., Tr.

at 555-56 (David’s testimony regarding how the Bat Cave

was used by the brothers to exchange money for drugs).

Thus, evidence regarding the apartment was relevant to

help the jury understand the scope and nature of the conspiracy. See United States v. Ramirez, 45 F.3d 1096, 1102 (7th

Cir. 1999). Second, as co-conspirators, Mr. Duran and David

were jointly liable for the illegalities in the Bat Cave.

Mr. Duran’s sixth and seventh challenges are to testimony

of William Bertucci and taped conversations between David

Duran and David Zuniga, respectively. No objections were

made at trial, and, therefore, our review is for plain error.

Basically, Mr. Duran’s contention is that this evidence

involved deals with David, not Mr. Duran. Again, however,

Mr. Duran’s argument misses that a co-conspirator (Mr.

Duran) is liable for foreseeable acts of another co-conspirator (David), and it hardly can be argued that drug

dealing is not a foreseeable act of a drug-dealing conspiracy.5

Mr. Duran’s eighth challenge—that certain parts of

David’s testimony regarding drug-supplier Galacia should

have been excluded—also must be reviewed for plain error

and also is without merit. This evidence was quite relevant
No. 03-2506 17

to the inner workings of the conspiracy of which Mr. Duran

was a part. See Ramirez, 45 F.3d at 1102.

In sum, we are able to identify only one error of any magnitude in the admission of evidence: the admission of two

guns uncovered at David’s sister’s apartment. Assessed

against the backdrop of the evidence as a whole, the admission of this evidence could not have had a “substantial

influence over the jury.” Walton, 217 F.3d at 449 (internal

quotation marks and citation omitted). Further, it is clear that

Mr. Duran received a trial consistent with “substantial

justice.” Id. (internal quotation marks and citation omitted).

B. Sufficiency of the Evidence Challenge to Count 9

Mr. Duran challenges the sufficiency of the evidence for

his conviction for possession of a firearm in furtherance of

a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A). In

adjudicating a sufficiency of the evidence challenge, this

court “consider[s] the evidence in the light most favorable

to the Government, defer[s] to the credibility determination

of the jury, and overturn[s] a verdict only when the record

contains no evidence, regardless of how it is weighed, from

which the jury could find guilt beyond a reasonable doubt.”

United States v. Jackson, 177 F.3d 628, 630 (7th Cir. 1999) (internal quotation marks and citation omitted). Legal questions

presented as part of a sufficiency of the evidence challenge

are reviewed de novo. See United States v. Stott, 245 F.3d 890,

904 (7th Cir. 2001).

Section 924(c)(1)(A) of Title 18 criminalizes the “possession” of a gun “in furtherance of” a drug-trafficking offense.

In this case, the relevant gun charged in the indictment was

the Beretta found in a robe in the bathroom of the Bat Cave.

The evidence established that the gun was David’s; therefore, Mr. Duran’s liability is derivative of David’s under co-
18 No. 03-2506

conspirator liability. See United States v. Frazier, 213 F.3d 409,

416 (7th Cir. 2000) (“[A] coconspirator may be held criminally

liable for the foreseeable overt acts of others in furtherance

of a conspiracy.”). Mr. Duran concedes the “possession” element of § 924(c)(1)(A). Instead, he argues that the Beretta was

not used “in furtherance of” the subject drug-trafficking

crime: the drug-trafficking conspiracy.

Until recently, we had not addressed the “in furtherance

of” element of § 924(c)(1)(A). However, in United States v.

Castillo, Nos. 02-3584 & 02-4344, 2005 WL 1023029 (7th Cir.

May 3, 2005), we explored this language in some detail, and

the principles of Castillo control this case. The “in furtherance

of” element requires that the weapon further, advance,

move forward, promote or facilitate the drug-trafficking

crime. See id. As numerous cases explain, the mere fact that

a weapon is present at the scene of a drug crime is not

enough to show a gun furthered a drug crime; there must be

“ ‘a showing of some nexus between the firearm and the

drug selling operation.’ ” United States v. Gaston, 357 F.3d 77,

83 (D.C. Cir. 2004) (quoting United States v. Mackey, 265 F.3d

457, 462 (6th Cir. 2001)). One legal theory that has been

advanced, and unanimously accepted, is that a possessed

gun can forward a drug-trafficking offense by providing the

dealer, his stash or his territory with protection. See, e.g.,

Castillo, 2005 WL 1023029 at *7-11; United States v. Luciano,

329 F.3d 1, 6 (1st Cir. 2003). Of course, this type of

possession-for-protection can be confused easily with

circumstantial or innocent weapon possession; therefore, in

cases such as this one, the evidence must specifically tie the

weapon to the drug-dealing activity to ensure there was not

“innocent possession of a wall-mounted antique or an

unloaded hunting rifle locked in a cupboard.” Mackey, 265

F.3d at 461. Factors that can be, but will not always be, useful

in drawing this distinction include: “the type of drug
No. 03-2506 19

activity that is being conducted, accessibility of the firearm,

the type of the weapon, whether the weapon is stolen, the

status of the possession (legitimate or illegal), whether the

gun is loaded, proximity to drugs or drug profits, and the

time and circumstances under which the gun is found.”

United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th

Cir.), modified on denial of rehearing, 226 F.3d 651 (5th Cir.

2000). At bottom, however, this is an arena where common

sense must be our guide.

In this case, there was more than sufficient evidence to tie

the subject weapon—the Beretta—to the drug-trafficking

conspiracy and specifically to the protection of its owner,

David. The Beretta was uncovered in the bathroom of the

Bat Cave, conspiracy headquarters. It was within proximity

of numerous rounds of ammunition. It was possessed illegally and was not registered. Also found in the apartment was

cocaine, a bulletproof vest, a flash suppressor, two scales

with white powder residue and a vitamin used to cut

cocaine. It was “strategically located so that [it was] quickly

and easily available for use.” Gaston, 357 F.3d at 83 (internal

quotation marks and citation omitted). Perhaps most

importantly, David unequivocally testified that his purpose

for having the Beretta was “[f]or protection.” Tr. at 562. This

case satisfies many of the Ceballos-Torres factors, and, given

David’s admission, it goes even further. Indeed, this case

cannot be distinguished adequately from a number of wellreasoned holdings. See, e.g., Luciano, 329 F.3d at 6 (“Given

the close proximity of the firearms and loaded magazines to

the significant stockpile of heroin, we have no difficulty

concluding that there was a sufficient nexus between the

drug trafficking crime and the firearms to sustain a conviction under § 924(c).”); United States v. Suarez, 313 F.3d 1287,

1293 (11th Cir. 2002) (“[C]onsidering (1) the fact that

Sicard’s house was the major initial storage point of all the
20 No. 03-2506

cocaine brought in from Mexico; (2) the type, location, and

condition of the weapons at issue; and (3) the amount of

drugs to be stored in his house, the jury could reasonably

have inferred that the guns were to be used to protect the

conspirators’ investment in their shipment.”); CeballosTorres, 218 F.3d at 415 (“The weapon was loaded and easily

accessible in Ceballos’s apartment, and he confessed to

ownership of the firearm. It was possessed illegally. And it

was possessed in the apartment along with a substantial

amount of drugs and money. Together, these factors

reasonably support a finding that Ceballos’s gun protected

his drugs and money against robbery.”).

Mr. Duran’s argument that, as a matter of law, “[w]hen all

that is shown is possession for ‘protection,’ . . . possession in

furtherance of has not been established,” Appellant’s Br. at

35, simply must fail in light of the case law discussed above,

which holds that jurors are entitled to consider that drug

dealers possess guns for protection to further drug-trafficking offenses. See, e.g., Castillo, 2005 WL 1023029 at *7-11. Of

course, jurors certainly are entitled to find there was no

evidence to establish that link between the particular gun at

issue and the protection purpose, and, at times, the court of

appeals must hold the evidence was insufficient to establish

that link as a matter of law. See United States v. Iiland, 254

F.3d 1264, 1274 (10th Cir. 2001) (reversing “in furtherance of”

finding when “[t]here was no evidence that the gun and

drugs were ever kept in the same place or that Mr. Iiland

ever kept the gun accessible when conducting drug transactions”). However, we again refuse to hold that the protection theory is legally invalid because that would be inconsistent with § 924(c)(1)(A)’s “in furtherance of” language. A

possessed gun surely can further a drug conspiracy by

providing protection, and to hold otherwise would thwart
No. 03-2506 21

6 Mr. Duran also argues that David Duran’s gun possession was

not reasonably foreseeable from their conspiratorial agreement,

and, thus, he cannot be liable for David’s actions. See United States

v. Walls, 225 F.3d 858, 865 (7th Cir. 2000). However, given the

broad scope of this drug conspiracy and the ubiquitous presence

of guns to support the conspiracy, the argument that it was not

reasonably foreseeable that David would possess a gun in furtherance of the conspiracy is without merit. See United States v.

(continued...)

Congress’ purpose of countering the dangerous mix of guns

and drugs. See Muscarello v. United States, 524 U.S. 125, 132

(1998) (explaining § 924(c)(1)(A)’s purpose in these terms).

Mr. Duran also notes that there was no evidence of on-site

sales at the Bat Cave and implicitly asks us to graft onto the

“in furtherance of” element a requirement that sales be

made at the place the gun is possessed. Like other circuits,

however, we consider on-site sales a relevant consideration

but not a prerequisite. See Gaston, 357 F.3d at 83 (finding “in

furtherance of” element despite no mention of on-site sales);

Suarez, 313 F.3d at 1293 (finding sufficient evidence that

guns possessed at a drug “storage” house were possessed

“in furtherance of”). Given the overwhelming nature of the

other evidence in this case, neither this factor, nor the others

to which Mr. Duran has pointed us, compel reversal.

As we did in Castillo, 2005 WL 1023029 at *5, 8, we emphasize that our role in this context is limited to ensuring that

a valid legal theory supports the conviction and that there

is some evidence from which a rational jury could find in

favor of that legal theory. See id. The jury was entitled to rely

on the protection theory, and, factually, there was overwhelming evidence, including David’s own words, that

protection was the purpose of the Beretta possession.6
22 No. 03-2506

6 (...continued)

Sandoval-Curiel, 50 F.3d 1389, 1393 (7th Cir. 1995). Mr. Duran also

contends that David’s possession “in furtherance of,” if established, was outside the scope of any conspiracy in which

Mr. Duran was a member. As we discussed earlier, this was a

broad conspiracy, and the evidence was more than sufficient to

establish that the Bat Cave, where the Beretta was stationed, was

a central feature of the conspiracy including both David and

Mr. Duran.

Accordingly, we are unable to accept Mr. Duran’s sufficiency of the evidence challenge.

C. Jury Instructions

Mr. Duran submits three distinct challenges to the jury

instructions. We shall consider each below.

1. “A Firearm” Error

Mr. Duran’s first challenge is to the instructions regarding

Count 9, the § 924(c)(1)(A) charge that we have addressed

in the immediately preceding section. Although numerous

weapons were introduced at trial as evidence, the superseding indictment based Count 9 on one weapon: the Beretta.

Specifically, it alleged that Mr. Duran “possessed a firearm,

namely, a Beretta 9 mm semi-automatic handgun, with removed serial numbers in furtherance of a drug trafficking

crime, namely, conspiracy to distribute and possess with the

intent to distribute cocaine, in violation of Title 21, United

States Code, Section 846, as more fully described in Count

One of this indictment.” Superseding Indictment at 11. The

jury instructions, however, explained that “[t]o sustain the

charge of possessing a firearm in furtherance of a drug
No. 03-2506 23

crime, as charged in Count 9, the government must

prove . . . that the defendant knowingly possessed a firearm

in furtherance of that crime.” Tr. at 899 (emphasis added).

It further explained that, “[w]hen the word ‘firearm’ is used

in these instructions, it means any weapon that will or is

designed to or may readily be converted to expel a projectile

by the action of an explosive.” Tr. at 900.

Mr. Duran contends, and the Government concedes, that

this invitation in the jury instructions to convict based on any

weapon is a broadening of the weapon-specific indictment.

A broadening of the indictment occurs when “the government . . . the court . . . or both, broadens the possible bases

for conviction beyond those presented by the grand jury.”

United States v. Cusimano, 148 F.3d 824, 829 (7th Cir. 1998)

(internal quotation marks and citation omitted). “Permitting

an indictment to be constructively amended . . . violates the

Fifth Amendment, which states in pertinent part that ‘[n]o

person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury.’ ” United States v. Folks, 236 F.3d 384, 391 (7th

Cir. 2001) (quoting U.S. Const. amend. V).

We must decide whether this broadening of the indictment requires reversal. Mr. Duran did not object explicitly

to the instructions’ failure to identify specifically the Beretta;

thus, our review is limited to searching for plain error. See

United States v. Trennell, 290 F.3d 881, 886 (7th Cir. 2002)

(“To assign error to any portion of the charge to the jury or

omission therefrom a party must state ‘distinctly the matter

to which that party objects and the grounds of the objection’

before the jury retires to consider its verdict.” (quoting Fed.

R. Crim. P. 30)); see also Fed. R. Crim. P. 52(b).

Mr. Duran first argues that this type of indictment broadening requires reversal per se. He relies on United States v.
24 No. 03-2506

Pedigo, 12 F.3d 618 (7th Cir. 1993), which explained in an

analogous circumstance that broadening an indictment is

“reversible per se. Therefore, if an amendment occurred, the

plain error standard of review will not save the conviction.”

Id. at 631 (citation omitted). However, Pedigo is not the

current law of this circuit. This court has explained that

when, as here, the indictment is broadened based on nonspecific jury instructions and when there was no objection

to those jury instructions at trial, plain error review is appropriate. See United States v. Algee, 309 F.3d 1011, 1016 (7th

Cir. 2002); see also Cusimano, 148 F.3d at 828 n.3 (explaining

that, when plain error review is necessary, reversal per se is

not warranted and collecting cases).

This court’s decision in Algee is controlling. In Algee,

Count 3 of the superseding indictment charged Algee

with knowingly possessing, after having previously

been convicted of a felony, a firearm, “that is a Norinco,

model SKS, 7.62 caliber, semi-automatic rifle, and a

Harrington and Richardson, model ‘Victor,’ .22 caliber

revolver.” At trial, however, evidence of five firearms,

including the two listed in the superseding indictment,

were introduced. Further, the jury was instructed that it

had to conclude only that Algee “knowingly possessed

a firearm” to find him guilty on the count.

309 F.3d at 1015. The court began its review by explaining

that, “[b]ecause Algee forfeited the issue” by failing to object, “he had to establish not only that there was error and

that it was plain, but also that the error affected ‘substantial

rights.’ ” Id. at 1016; see also United States v. Harbin, 250 F.3d

532, 543 (7th Cir. 2001) (explaining that an effect on substantial rights generally is equated with prejudice); United States

v. Raney, 342 F.3d 551, 559-60 (7th Cir. 2003) (“We will

reverse a conviction under plain-error review only where it
No. 03-2506 25

7 Mr. Duran argued in his opening brief that reversal was per se

because the indictment was broadened, and, in the alternative, he

argued that, under plain error review, reversal was warranted

because “but for the error [in the instructions], Mr. Duran

probably would have been acquitted.” Appellant’s Br. at 44. As

explained above, we cannot accept this argument.

At oral argument, however, a different constitutional argument

based on jury unanimity was discussed: whether, because we

cannot be certain the jury decided unanimously that the Beretta

(continued...)

is necessary to avoid a miscarriage of justice, and there is no

miscarriage of justice if the defendant’s guilt is so clear that

he would certainly have been convicted even if the error had

never been committed.” (internal quotation marks and

citation omitted)); United States v. Baker, 78 F.3d 1241, 1246

(7th Cir. 1996) (“[T]here is no plain error if a properly

instructed jury nevertheless would have convicted [the

defendant].”). The court in Algee then went on to explain

that Algee had not even attempted to meet his burden of

establishing prejudice, “[a]nd it is unlikely that Algee could

have established prejudice in any case. As the government

points out, there was an abundance of evidence proving that

Algee did knowingly possess the two firearms specifically listed in

the superseding indictment.” Algee, 309 F.3d at 1016 (emphasis

added).

Although Algee involved a different statutory provision,

the felon-in-possession statute, there is no reason why its

principle should not control this case. As our discussion

relating to the sufficiency of the evidence reveals, there also

“was an abundance of evidence proving that” the Beretta was

possessed in furtherance of the drug-trafficking conspiracy.

Id. Accordingly, Mr. Duran has not met his burden of

proving that his substantial rights have been affected, and

we must uphold his conviction.7
26 No. 03-2506

7 (...continued)

(as opposed to some other weapon) was possessed in furtherance

of the drug-trafficking crime, remand is required. Presumably,

this argument would be based on the Sixth Amendment requirement that a jury find a defendant “guilty,” and the Due

Process Clause’s demand that a jury must find all elements of

an offense beyond a reasonable doubt. We use the term “presumably” because this jury unanimity argument was not raised with

any clarity in Mr. Duran’s opening brief, and, accordingly, it is

waived. See United States v. South, 28 F.3d 619, 629 (7th Cir. 1994)

(“Perfunctory and undeveloped arguments . . . are waived.”). In any

event, we note that the jury unanimity argument is fundamentally at odds with United States v. Algee, 309 F.3d 1011 (7th Cir.

2002), where the conviction was affirmed based on the defendant’s failure to show prejudice (i.e., but for the error, the

defendant would have been acquitted), even though this court

could not be certain the jury unanimously focused on the weapons identified in the indictment in the conviction. See id. at 1016.

It also is at odds with previous constructive amendment cases.

See, e.g., United States v. Remsza, 77 F.3d 1039, 1043-44 (7th Cir.

1996).

2. Ceballos-Torres Factors in Instruction

Mr. Duran next argues that the jury instructions on the “in

furtherance of” element of the § 924(c)(1)(A) charge in

Count 9 were erroneous, confusing and warrant reversal.

“Jury instructions are viewed as a whole and ‘[i]f the instructions are adequately supported by the record and are fair

and accurate summaries of the law, the instructions will not

be disturbed on appeal.’ ” Folks, 236 F.3d at 388-89 (citation

omitted).

The relevant portion of the instructions stated:

Possession of a firearm is in furtherance of a drugtrafficking crime if the possession assists in furthering,

advancing or helping the drug-trafficking crime.
No. 03-2506 27

The mere presence of a firearm at a location is not sufficient to find that the firearm was possessed in furtherance of a drug-trafficking crime but can be considered

along with other factors. Some factors that you may

consider in determining whether a firearm possession

was in furtherance of a drug-trafficking crime include

but are not limited to, [1] the type of firearm, [2]

whether the firearm was stolen, [3] whether the firearm

possession was legitimate or illegal, [4] whether the

firearm was loaded, [5] the accessibility of the firearm,

[6] the proximity of the firearm to drugs, drug profits or

materials used for drug trafficking, [7] the type of drug

activity that is being conducted, and [8] the time and

circumstances under which the firearm was found.

Tr. at 900. The eight factors listed are taken from CeballosTorres, 218 F.3d at 414-15. Mr. Duran argues that “[t]he

Ceballos-Torres factors take the jury in the wrong direction.

The key inquiry should be the relationship between the

firearm and the drug activity. Neither the nature of the drug

activity nor the legality of possession of the firearm alone

are relevant to whether a firearm is used in furtherance.

Thus, factors 1, 2, 3, 4, and 7 are misleading and not probative to the connection between possession and drug trafficking that the statute demands.” Appellant’s Br. at 45.

A number of circuits, including this one, have adopted the

Ceballos-Torres factors, or a substantially similar list, as helpful considerations in the “in furtherance of” calculus. See

Castillo, 2005 WL 1023029, at *8; United States v. Sparrow, 371

F.3d 851, 853-54 (3d Cir. 2004); Gaston, 357 F.3d at 83; Suarez,

313 F.3d at 1293; United States v. Lomax, 293 F.3d 701, 705 (4th

Cir. 2002); United States v. Basham, 268 F.3d 1199, 1208 (10th

Cir. 2001); Mackey, 265 F.3d at 462. However, we have

cautioned, as did the Ninth Circuit recently, that these

factors cannot form a “checklist” because this arena must be
28 No. 03-2506

governed by a common-sense inquiry into whether the gun

and drug-trafficking offense have been tied together such

that a jury could conclude the former was possessed to

advance the latter. See Castillo, 2005 WL 1023029, at *8;

United States v. Krouse, 370 F.3d 965, 968 (9th Cir. 2004).

The Count 9 instructions reflected this approach: They did

not cast the Ceballos-Torres factors as a checklist but as

“[s]ome” factors the jury “may consider” in its “in furtherance of” calculus. Moreover, we cannot accept the notion

that these factors are inherently misleading or unhelpful. In

cases such as this one, where the Government’s “in furtherance of” theory is one of protection (i.e., the gun was possessed in furtherance of the conspiracy by protecting the

drug dealer, his stash and/or his territory), the Ceballos-Torres

factors Mr. Duran identifies, and the factors as a whole, can

help the jury to distinguish between a gun possessed for

reasons unrelated to drug-trafficking activity and one

possessed “in furtherance of” that activity. For example,

jurors are not required to ignore the common-sense notion

that a drug dealer who possesses a sawed-off shotgun with

the serial number filed off during the course of a drugdistribution conspiracy likely was not possessing the weapon

for pheasant hunting or gun-collection shows. See Suarez,

313 F.3d at 1293 (explaining, in rejecting a sufficiency of the

evidence challenge on the “in furtherance of” element, that

“[t]wo of the firearms were illegally shortened” and “[n]one

of the weapons was of a type typically used for legal

purposes, such as hunting”). Moreover, jurors are entitled

to consider that illegally possessed, loaded weapons at the

headquarters of a drug-distribution conspiracy “strategically located so that [they were] quickly and easily available

for use” are likely to be possessed as part of that conspiracy.

Gaston, 357 F.3d at 83 (internal quotation marks and citation

omitted). But see Krouse, 370 F.3d at 968.
No. 03-2506 29

Of course, in particular cases, the inferences flowing from

the factors will be less forceful, and the defendant can

attempt to rebut such inferences before the jury. Nevertheless, assigning proportionate weight, if any, to these factors

is the province of the jury. See Suarez, 313 F.3d at 1293 (explaining that “[t]he jury rejected” the defendant’s story that

“he had legally purchased guns over several years as a collector” and “it was within its purview to do so”). We need

to hold only that these factors are valid and can be used as

part of the “in furtherance of” instructions, which we do.

Finally, we note that Mr. Duran’s argument that the instructions erroneously focused on possession and the

legitimacy of the possession is diminished further by the

fact that, prior to the rendition of the Ceballos-Torres factors

in the instructions, the jury was given a correct definition of

“in furtherance of” and admonished that mere possession

of a firearm at a drug scene is not enough. Given these

factors, we hold the instructions, considered as a whole, were

proper. In so holding, we join the Tenth Circuit, which

approved almost identical instructions and rejected an

almost identical challenge in Basham, 268 F.3d at 1207-08.

3. “Aspects” Instruction

Mr. Duran’s final challenge is to the instructions on the

conspiracy charge in Count 1. These instructions stated in

relevant part:

A conspiracy is an agreement between two or more

persons to accomplish an unlawful purpose. To sustain

the charge of conspiracy as charged in Count 1, the

government must prove the following propositions

beyond a reasonable doubt:

First, that the conspiracy as charged in Count 1 existed, and, second, that the defendant knowingly be-
30 No. 03-2506

came a member of the conspiracy with an intention to

further the conspiracy.

If you find from your consideration of all the evidence

that each of these propositions has been proved beyond

a reasonable doubt, then you should find the defendant

guilty of Count 1.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions

has not been proved beyond a reasonable doubt, then

you should find the defendant not guilty of Count 1.

A conspiracy may be established even if its purpose

was not accomplished.

Count 1 sets forth different aspects an [sic] of alleged

agreement between the defendant and others. The government need not prove every aspect of the agreement

alleged as part of the conspiracy charged in Count 1.

To be a member of the conspiracy, the defendant need

not join at the beginning or know all members or the

means by which its purpose was to be accomplished.

The government must prove beyond a reasonable

doubt that the defendant was aware of the common

purpose and was a willing participant.

Tr. at 896-97.

Mr. Duran argues that these instructions were “likely to

mislead the jury, implying a reduction in the standard of

proof necessary to convict” and, accordingly, violated his

due process rights. Appellant’s Br. at 45-46 (citing, among

other cases, United States ex rel. Fleming v. Huch, 924 F.2d 679

(7th Cir. 1991)). As we noted above, “[j]ury instructions are

viewed as a whole and ‘[i]f the instructions are adequately

supported by the record and are fair and accurate summa-
No. 03-2506 31

ries of the law, the instructions will not be disturbed on

appeal.’ ” Folks, 236 F.3d at 388-89 (citation omitted).

We cannot say that the conspiracy instructions, taken as

a whole, constitute reversible error. The jury unambiguously

was instructed that it had to find the elements of conspiracy

“beyond a reasonable doubt” and that, if any of the elements were not found “beyond a reasonable doubt,” then

the jury was to acquit. The subsequent admonition that

“Count 1 sets forth different aspects an [sic] of alleged

agreement between the defendant and others,” and “[t]he

government need not prove every aspect of the agreement

alleged as part of the conspiracy charged in Count 1” does

not, in our view, signal to a reasonable jury to ignore the

prior “reasonable doubt” instruction.

Count 1 did state nine of what laypersons would reasonably and naturally consider “aspects” of an agreement. For

example, paragraph 2 of Count 1 explained that it was “part

of the conspiracy that defendants DAVID DURAN, FRANK

DURAN, and DANIEL GALICIA, obtained wholesale

quantities of cocaine and marijuana for distribution

to others.” Superseding Indictment at 2. Paragraph 5 explained that “[it] was further part of the conspiracy” that

Vivian Reyes and Beatriz Gamez, David’s and Mr. Duran’s

girlfriends, respectively, would assist in distributing the

drugs. Id. None of these aspects needed to be proven in order

to convict for conspiracy because “[p]roving a conspiracy

under 21 U.S.C. § 846 requires that (1) two or more people

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

knowingly and intentionally joined in that agreement. No

overt act is required.” United States v. Thornton, 197 F.3d 241,

254 (7th Cir. 1999). Accordingly, it was appropriate for the

instructions to make this point, and, in the process of so

doing, we do not think the jury would have thought that

this “aspects” instruction, in face of the reasonable doubt
32 No. 03-2506

instructions, meant that it did not have to find the elements

of a conspiracy beyond a reasonable doubt. To take the view

Mr. Duran suggests, we would have to believe that the jury

could have thought that the district court was telling it not

to do what the district court specifically and explicitly told

it to do just sentences earlier.

4. Sentencing

Mr. Duran submits that his sentence violates the

Sixth Amendment, as interpreted by the Supreme Court’s

recent decision in United States v. Booker, 125 S. Ct. 738

(2005). He points out that the sentence, imposed under the

then-mandatory federal sentencing guidelines, exceeds the

maximum authorized by the facts found by the jury or

admitted by him. Because Mr. Duran did not raise this type

of argument in the district court, our review is for plain

error. See Booker, 125 S. Ct. at 769; United States v. Paladino,

401 F.3d 471, 2005 WL 435430, at *7 (7th Cir. Feb. 25, 2005).

Under the plain error test, “before an appellate court can

correct an error not raised at trial, there must be (1) ‘error,’

(2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ”

United States v. Cotton, 535 U.S. 625, 631 (2002) (quoting

Johnson v. United States, 520 U.S. 461, 466-67 (1997)). “ ‘If all

three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4)

the error seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.’ ” Id. (quoting Johnson,

520 U.S. at 467).

A jury found Mr. Duran guilty of all charges against him:

conspiracy to possess with the intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) & 846

(Count 1); two counts of possession with the intent to

distribute a controlled substance, in violation of 21 U.S.C.
No. 03-2506 33

§ 841 (Counts 6 and 7); possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A) (Count 9); and use of a communications facility to facilitate the commission of a narcotics offense, in

violation of 21 U.S.C. § 843(b) (Count 15). By special verdict,

the jury found that the amount of drugs involved in the

conspiracy was at least five kilograms of cocaine. R.188 at 3.

Based on the jury’s drug amount finding, Mr. Duran’s base

offense level was 32. See U.S.S.G. § 2D1.1(c)(4). An offense

level of 32 and Mr. Duran’s criminal history category of V

corresponded to a guidelines sentencing range of 188 to 235

months. The district court increased the base offense level

by three levels based on its finding, not the jury’s, that

Mr. Duran had acted as a manager or supervisor in criminal

activity involving five or more participants, U.S.S.G. § 3B1.1(b).

The final adjusted offense level resulted in an applicable

guidelines sentencing range of 262 to 327 months. The district court sentenced Mr. Duran to 262 months on Count 1,

to 240 months on Counts 6 and 7, and to 8 months on Count

15, with the sentences to run concurrently. As required by

18 U.S.C. § 924(c)(1)(A), the district court also imposed a

consecutive sentence of 60 months on Count 9.

The Government concedes that, in light of Booker, there was

error and that the error is obvious. However, the Government

maintains that the enhancement of Mr. Duran’s sentence

does not amount to plain error because Mr. Duran cannot

demonstrate that the error affected the outcome of the district court proceedings. On this record, the district court,

vested with the broader discretion now afforded by Booker’s

remedial holding, might well have imposed a lighter sentence than required by the guidelines; we simply cannot be

certain. Therefore, to enable us to complete our plain error

analysis, we shall retain jurisdiction of this appeal and

direct a limited remand, in accordance with our circuit’s
34 No. 03-2506

recent decision in Paladino, 401 F.3d 471, 2005 WL 435430, at

*10, to permit the sentencing court to determine whether or

not it would have imposed the same sentence had it known

that the guidelines were merely advisory.

Conclusion

For the foregoing reasons, we affirm the judgment of conviction and order a limited remand of the sentence consistent with the procedure outlined in Paladino, 401 F.3d 471,

2005 WL 435430, at *10.

IT IS SO ORDERED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-10-05