Tommy E. Jones sold crack cocaine to government agents. He was convicted for this and for the related act of conspiring to distribute cocaine within 1000 feet of a public housing complex under 21 U.S.C. §§ 841(a)(1) and 846. On appeal, Jones raises three issues. First, he claims the district court erred in not dismissing his indictment according to the Interstate Agreement on Detainers Act. Second, he argues that there was reversible error at trial based on evidentiary admissions and the form of the jury instructions. Third, he challenges the propriety of his sentencing hearing and the length of his term, which was set at 300 months. For the following reasons, we affirm.
*645 I. Background
Between February 2000 and January 2001, Tommy E. Jones conspired with others to distribute, and possessed with the intent to distribute, cocaine and cocaine base in the Rockwell Gardens public housing building located at 340 South Western Avenue (the 340 Building) in Chicago, Illinois. During that time, narcotic sales in the 340 Building were controlled by the Gangster Disciples, a street gang to which Jones belonged.
Law enforcement authorities, including agents from the Department of Housing and Urban Development (HUD), conducted an investigatory operation at the Rockwell Gardens public housing complex from March 2000 through January 21, 2001. During this period of time, law enforcement agents surveilled the gang’s activities and conducted controlled buys that yielded more than 100 grams of crack cocaine.
In the early afternoon of May 2, 2000, Jones sold crack cocaine to a federal agent in a stairwell of the 340 Building. Special Agent Kenneth Popovits, from HUD, posed as a laborer from Indiana wanting to purchase crack for redistribution. Working with a confidential informant (Cl), Agent Popovits entered the 340 Building after informing a gang sentry of their supposed intentions. The gang member directed them to the building lobby, where Popovits and the Cl were searched and redirected to a stairwell.
When Agent Popovits and the Cl got to the stairwell, they encountered and negotiated with three men. Popovits recognized two of the men: Michael Zolicoffer and the defendant. Zolicoffer he knew from prior transactions, but Jones he recognized from intelligence photos of individuals that frequented the area. Popovits told the men that he and the Cl each wanted to buy ten bags of crack cocaine. (Each bag contained one rock of crack and was valued at ten dollars.) The unknown third man provided the first six bags to the Cl, but turned to Jones to satisfy the remainder of the request. Jones completed the Cl’s order and then asked Popovits how much crack he still needed. Popovits told him ten. Jones then handed him ten small black bags of crack from a larger baggy. Popovits paid him $100 for his ten bags and he and the Cl then left the 340 Building. The drugs obtained from Jones tested positive for 4.2 grams of cocaine base.
On the afternoon of the purchase, Agent Popovits prepared a report of the transaction. In it, he described Jones as FNU LNU No.17 (FirsWName-Unknown LasW Name-Unknown): black male, six feet, one inch tall, weighing 175 lbs. A few days after his report, Popovits identified Jones in his operation’s “intelligence file.” The file contained photos of Rockwell Gardens’ residents that had previously been arrested by the City of Chicago and the Chicago Housing Authority police departments. Popovits then gave Jones’s photograph to fellow agent Fount Hankie, who placed it in a spread of four other men. Agent Popovits again picked Jones. He was one-hundred percent certain that Jones was the second man in the stairwell during the May 2 drug purchase. This entire identification process took place outside of the Cl’s presence.
On September 17, 2002, Jones and several co-defendants were charged in a criminal complaint for conspiracy to distribute heroin, cocaine, and cocaine base in violation of 21 U.S.C. § 846. A grand jury returned an indictment against Jones on January 16, 2003, charging him with one count of conspiracy to distribute crack cocaine within 1000 feet of a public housing complex, 21 U.S.C. § 846, and one count of distribution of crack cocaine within 1000 feet of a public housing complex, 21 U.S.C. § 841(a)(1). A superseding indictment *646 was returned with the same charges on August 21, 2003.
Following the initial indictment, a federal detainer was lodged against Jones on October 29, 2002. The detainer was served at Illinois River Correctional Center in Canton, Illinois, where Jones was serving time for a state conviction. The purpose of the notice was twofold: it advised Jones that he was wanted for trial on the federal charge, and it allowed him to demand a speedy trial. Jones executed the document on November 19, 2002, and delivered it to the warden of his holding institution. He was produced for trial on August 21, 2003.
At trial, the government called four witnesses: Charles Butts, Jerry Harrington, Willie Mobley, and Michael Zolicoffer. All four men testified that Jones was a fellow member of the Gangster Disciples and that he sold crack cocaine on a daily basis at the 340 Building during the spring of 2000. Further, testimony was introduced that he was known to sell crack between late 1999 and mid-year 2000. Harrington, Mobley, and Zolicoffer also stated that all gang members participated in Nation’s Work, which involved selling drugs for the collective benefit of the organization. Additionally, Butts, Harrington, and Zolicoffer testified that all gang members, including the defendant, were required to attend gang meetings and work security at the 340 Building. Butts and Zolicoffer attended these meetings with the defendant between 1999 and 2000.
Aside from the drug sales, Jones occupied a position of authority within the Gangster Disciples. Harrington, Mobley, and Zolicoffer testified that Jones was a Regent, explaining that he was responsible for managing security assignments within the gang and leading meetings. Harrington also testified that he sold crack cocaine for Jones in February 2000. During the entire month, Jones supplied Harrington with 36 dime bags of crack per day. (A dime bag cost $10 and contained one rock of crack.) Harrington sold Jones’s supply at night and Jones sold during the day. For each set of 36 bags that Harrington sold, he paid $300 back to Jones and kept $60 for himself.
On February 17, 2004, the jury found Jones guilty on both counts charged in the superseding indictment. He then filed post-trial motions challenging the district court’s pretrial and trial rulings. Judge Pallmeyer denied both motions. On January 28, 2005, Jones was sentenced to 300 months in custody. He now appeals (1) the timeliness of his trial, (2) Agent Popo-vits’s identification procedure, (3) the district court’s jury instructions, and (4) the findings made at his sentencing.
II. Analysis
A. The Interstate Agreement on De-tainers Act
Jones first argues that the District Court should have dismissed the charges against him because the government violated the Interstate Agreement on Detainers Act (IAD), 18 U.S.C.App. § 2. Because the IAD is a congressionally sanctioned compact, it is subject to federal construction.
See Alabama v. Bozeman,
The IAD is a multi-state agreement that is meant to “encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations, or com
*647
plaints.” Art. I, 18 U.S.C.App. § 2. A detainer is a notice filed with a prisoner’s institution of incarceration alerting both he and the institution that the prisoner is wanted to face criminal charges in another jurisdiction. Practically, the detainer is a request that the prisoner be held for the other jurisdiction’s prosecutors or that the holding institution notify the prosecutors of the prisoner’s pending release.
See United States v. Paredes-Batista,
The leading Supreme Court case on this matter,
Fex v. Michigan,
found that the IAD demanded actual delivery.
Jones also chose to exercise his right to a speedy trial, but his detainer (Form USM-17) was never delivered to the U.S. Attorney or the district court. After executing his demand, Jones gave the document to the warden of his holding facility. The warden then forwarded the detainer to the U.S. Marshals’ Office for the Central District of Illinois, which sent it to its counterpart in the Northern District. Where the detainer went from there, the record does not tell us. We do know, however, that the warden failed to follow the instructions on the detainer. Jones’s executed Form USM-17 instructs the warden to “forward the detainer together with the Certificate of Inmate Status by registered or certified mail to the U.S. Attorney for the Northern District of IL and the U.S. District Court for the Northern District of IL.” Trial Rec. 639.
Relying on agency theory, Jones argues that delivery occurred when the detainer was received by the Marshals’ Office in the
*648
Northern District. Because the U.S. Marshal is the authorized agent for service, he reasons, we should find that it is the authorized agent for receipt, as well. To support this argument, Jones cites two Ninth Circuit rulings on the IAD’s standards for delivery. The first is
United States v. Johnson,
United States v. Collins,
The IAD, and the interpretation set forth in
Fex,
is literal: the executed detainer is “to be delivered to the prosecuting officer and the appropriate court.” IAD Art. 111(a), 18 U.S.C.App. § 2. This language does not contemplate authorized agents and Jones cannot show that his detainer was actually delivered to the U.S. Attorney or the District Court. While this may be a strict rule, the Supreme Court’s decision in
Fex
explicitly contemplated a more egregious error on the part of the warden and found dismissal of the charges to be an inappropriate remedy.
See
B. Eyewitness Identification
Jones next claims that the process by which Agent Popovits made his eyewitness identification was unduly suggestive, and this evidence should have been excluded from trial. The district court’s decision to admit or suppress such an identification is subject to
de novo
review.
United States v. Harris,
Eyewitness identification testimony violates a defendant’s right to due process of law when it creates a “ ‘very substantial likelihood of irreparable misidentification.’ ”
Neil v. Biggers,
In examining the identification process, we focus on the manner in which the witness was shown the suspect’s likeness, reserving criticism for procedures that have been orchestrated to yield the identification of one particular suspect.
Gregory-Bey v. Hanks,
Jones argues, however, that the use of the intelligence file was substantively flawed and that its repeated consultation conditioned agent Popovits to expect to see certain persons. In making this argument he relies primarily on
Israel v. Odom,
where we held that the repeated presentation of a single sketch was unduly suggestive.
Even assuming the procedure was suggestive, the totality of the circumstances indicate the identification was reliable. In making this determination, we consider five factors:
(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.
Gregory-Bey,
Agent Popovits is a trained law-enforcement agent whose sole purpose in entering the drug buy was to identify the people involved. He had a clear opportunity and time to view the defendant while making the purchase in the 340 building stairwell. During the buy he watched Jones complete the Cl’s order, he spoke directly with Jones to remind him how many bags he needed, and he paid Jones for the purchase. During this transaction, the two men stood face to face. Further, in his report made the day of the sale, Agent Popovits described Jones as being 6 feet, 1 inch tall, weighing 175 pounds. He erred only in overstating Jones’s weight by five pounds. Additionally, Popovits testified to remembering Jones’s droopy eye *650 and puffy cheeks. Further, Popovits testified that when he identified Jones on May 11, nine days after the drug buy, he was one-hundred percent sure Jones was FNU LNU No.17. We cannot quibble with this certainty, and nine days is a relatively short delay.
Finally, because Jones failed to substantively address the adequacy of the in-court identification, we deem this issue waived.
See United States v. Johnson,
C. Jury Instructions
Jones directs his third challenge towards his jury instructions. He argues that the district court erred in not requiring the jury to find the exact amount of cocaine attributable to each defendant beyond a reasonable doubt. When the underlying question of error is one of law, we review a district court’s choice of jury instructions
de novo. United States v. Macedo,
At the conclusion of trial, Judge Pall-meyer submitted the Seventh Circuit Pattern Jury Instructions covering 21 U.S.C. §§ 841(a)(1) and 846, and a special verdict question for the conspiracy count against the defendant. The special question, to be answered only if the jury found the defendant guilty of participating in the conspiracy, asked them to determine if the offense involved one of the following amounts of cocaine base: (1) less than five grams; (2) more than five grams, but less than 50 grams; or (3) 50 grams or more of cocaine base. The latter question ensures that the jury determines the relevant statutory maximum and minimum pursuant to the sentencing requirements of
Apprendi v. New Jersey,
We have consistently held that drug quantities are not elements of the offense, and need not be found beyond a reasonable doubt.
See, e.g., Knox v. United States,
Jones, however, relies on our decision in
United States v. Rivera
to argue that we have,
sub silentio,
turned a corner on the drug quantity and type as elements of the offense issue.
D. Sentencing
Lastly, Jones attacks his sentencing in three parts. First, that the district court’s factual findings were clearly erroneous; second, that the district court improperly relied upon a prior conviction in imposing his sentence; and third, that his sentence violated the Due Process Clause of the Fifth Amendment and the Ex Post Facto Clause.
Jones claims that the district court arrived at his sentence after considering unreliable information and without making an explicit finding as to his drug quantity, offense level, and manner of calculating his sentence. We review a district court’s factual findings at sentencing for clear error,
United States v. Trennell,
Because Jones was convicted for conspiracy, the district court calculated his Guidelines range based upon the quantity of drugs he could have reasonably foreseen being distributed by the operation: 1.5 kilograms.
Rivera,
After weighing Jones’s knowledge of the gang’s collective drug sales, the district court calculated the 1.5 kilograms attributable to their efforts. In doing so, the district judge explicitly considered the credibility of Jerry Harrington and Willie Mobley. She noted that their testimony was consistent and corroborative, and sufficient to prove, beyond a reasonable doubt, that 1.5 kilograms was reasonably foreseeable to the defendant. Sentencing Hr’g Tr. 42, Jan. 28, 2005. Later in the Sentencing Memorandum, the court wrote:
Even if, contrary to the testimony of several witnesses, Mr. Jones was not on the premises every day, his presence even occasionally surely would have permitted him to recognize the volume of GD crack cocaine sales. Even as few as two sales per day of 4.2 grams of crack would mean that the conspirators sold more than 1.5 kilograms of crack in a seven-month period. There was substantial credible testimony that on most •if not all days, there were not just two, *652 but dozens of such sales at the 340 Building.
Sentencing Memorandum, 4.
Lastly, pursuant to U.S.S.G. § 3Bl.l(e), the district court gave Jones a two-point enhancement for being a Regent. Jones argues that the witnesses never agreed if Jones occupied this leadership role. At trial however, three witnesses testified that Jones had been a Regent; they disagreed only as to the timing of this distinction. The district court took these corroborating statements into account and discounted the contradictory testimony offered by Richard Epps. Further, the court noted that “Mr. Jones recruited others, and there was also testimony concerning persons who sold for Mr. Jones for at least a short period of time.” Sentencing Hr’g Tr. 54, Jan. 28, 2005. The fact that he was found to occupy the role for a short while was reflected in the court’s decision to add only two points under 3Bl.l(c), not the three points requested by the government under 3Bl.l(b). While the district court could have been more explicit in its findings regarding which testimonial evidence it was citing and why, after reviewing the record, we cannot say that we are left with the “‘firm and definite conviction that a mistake has been made.’ ”
Cross,
Jones next argues the court erred by relying on a subsequently overturned conviction when determining his sentence. Were this the case, he would be entitled to a new sentencing hearing — defendants have a due process right to be sentenced on the basis of accurate information.
United States v. Tucker,
At the sentencing hearing, Jones made a statement seeking leniency from the district court. He denied being a gang member and explained that he was, instead, a “family man.” Sentencing Hr’g Tr. 75, Jan. 28, 2005. The district court rejected this claim out of hand for two reasons. First, the court noted that while he had a daughter, he had not been supporting her. Second, the court reviewed his prior conviction for the aggravated sexual abuse of a minor. This conviction, however, was later overturned by the Illinois Appellate Court. People v. Jones, No. 1-02-1623, slip op. (Ill.App. May 27, 2005).
That the sentencing court considered inaccurate information is not in doubt. But Jones cannot show that the inaccurate information was relied on in passing sentence. In
ex rel Welch v. Lane,
our definitive case on this matter, the sentencing judge mistakenly believed that one of the defendant’s convictions for robbery was a conviction for armed robbery. The judge then noted that this (misconstrued) conviction was a “significant factor in the Court’s determination of the sentence.”
Finally, we find Jones’s argument that his sentence violated the Fifth Amendment Due Process Clause and the Ex Post Facto clause without merit. In
United States v. Jamison,
III. Conclusion
For the foregoing reasons we Affirm the decision of the district court.