Henry McKee was charged in a one-count indictment with conspiring to distribute and to possess with intent to distribute the drug known as ecstasy in violation of 21 U.S.C. §§ 846 and 841(a)(1). After a four-day trial, a jury found McKee guilty. The court sentenced McKee to 112 months’ imprisonment and 3 years’ supervised release. McKee appeals, and we affirm his conviction.
I.
McKee was part of a conspiracy to smuggle ecstasy from the Netherlands to Chicago. His co-conspirators, Michael Macintosh and Saviera MacNac, lived in the Netherlands and arranged for couriers to deliver ecstasy to Chicago. McKee’s role was to provide housing, transportation, and telephones for the couriers while they were in Chicago. The conspiracy was discovered in October 2000 when customs officers at O’Hare airport intercepted two couriers, Milva Gosepa and Judith Ruim-wijk, carrying a package of approximately 11,000 ecstasy pills. Gosepa and Ruimwijk were arrested, and Ruimwijk agreed to cooperate with law enforcement by participating in a controlled delivery of counterfeit pills.
On the day that the controlled delivery was to take place, law enforcement agents set up audio and video surveillance in Ru-
At trial the government presented evidence that McKee had rented the apartment used to house Ruimwijk, another courier, and their ecstasy during a smuggling trip in August 2000, and had secured a telephone and rented a car for another co-conspirator. The government also presented the recorded telephone conversation between Ruimwijk and MacNac, a video recording of McKee’s meeting with Ruimwijk in the hotel room and a transcript of their conversation, the drugs, and the gun found in McKee’s car. Finally, Ruimwijk testified that she had met McKee during a prior smuggling trip when he came to the apartment he had rented for the couriers and asked Maclntoch if he could have some of the ecstasy to sell.
II.
As to his conviction, McKee first argues that the court erred by allowing the prosecutors (1) to question him regarding the credibility of other witnesses, (2) to characterize him as a liar, and (3) to vouch for the credibility of government witnesses in their closing arguments. Because McKee did not object at trial to any of the prosecutor’s statements, we review for plain error. Fed.R.Crim.P. 52(b);
United States v. Carrera,
The government acknowledges that the prosecutor erred by asking McKee whether other witnesses had lied, noting that “it is improper to ask one witness to comment on the veracity of the testimony of another witness.”
United States v. Freitag,
McKee also argues that the district court erred by instructing the jury that it “should” acquit rather than it “must” acquit if the government failed to meet its burden. Again, McKee did not object so we review for plain error.
See United States v. Mansoori,
Turning to his sentence, McKee argues that the district court erred by denying him a two-level reduction for being a minor participant under U.S.S.G. § 3B1.2. We review the denial of a minor-participant reduction for clear error.
United States v. Rodriguez-Cardenas,
As McKee sees things, he was entitled to the reduction because “all of the other participants were higher up on the food chain than he was.” However, where each person was an “essential component” in the conspiracy, the fact that other members of the conspiracy were more involved does not entitle a defendant to a reduction in the offense level.
See United States v. Castillo,
Finally, in his initial brief McKee argued that it was clearly improbable that the gun found in his Lexus was connected to the offense and thus the district court erred when it increased his offense level pursuant to U.S.S.G. § 2Dl.l(b)(l). After oral
The Supreme Court has granted certio-rari in Booker, whereupon in the coming weeks it will determine the application of Blakely to the federal sentencing guidelines. Therefore, we will stay our mandate until Booker is decided. Within fourteen days of the Supreme Court’s decision in Booker, both parties may submit a memorandum setting forth their views on the application of that decision to this case.
III.
For the reasons stated above, we Affirm the judgment of conviction, Vacate the sentence, and Remand the case for resen-tencing. This court’s mandate is stayed pending the Supreme Court’s decision in Booker.
