§275 Drug Relevant Conduct: Conspiracy, “Foreseeability”
10th Circuit upholds finding that drug dealing was foreseeable to defendant. (275) Defendant was convicted of drug trafficking. At sentencing, the district court relied on drug amounts that had been sold by a coconspirator (and of which defendant had been convicted) to set defendant’s offense level. The district court adopted the findings in the presentence report, which made particularized findings that the coconspirator’s drug dealing was reasonably foreseeable to defendant. The Tenth Circuit affirmed, ruling that by adopting the presentence report, the district court made adequate findings about defendant’s drug dealing. U.S. v. Ellis, __ F.4th __ (10th Cir. Jan. 26, 2022) No. 19-3148.
11th Circuit finds firearms and drugs seized after charged conspiracy ended were “relevant conduct.” (175)(275) Defendant was convicted of a conspiracy to distribute drugs that ran from January 1, 2010, to December 31, 2013. He was arrested on September 23, 2014. At sentencing, the court ruled that firearms and drugs found during his arrest were “relevant conduct” under §1B1.3 and therefore included them in calculating defendant’s offense level. On appeal, the Eleventh Circuit affirmed, finding that the firearms and drugs were relevant conduct because defendant admitted that he had been paid to keep the drugs and there was a common purpose between the drugs found at his arrest and the drugs charged. U.S. v. Perry, __ F.4th __ (11th Cir. Sept. 29, 2021) No. 16-11358.
6th Circuit holds defendant accountable for “maintaining premises,” based on relevant conduct. (240) (275) Defendant was convicted of drug trafficking. At sentencing, the district court added two levels under § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. The district court found that even though defendant did not personally maintain the premises where drugs were distributed, defendant’s accomplices did so. The Sixth Circuit affirmed, ruling that a defendant can be liable for maintaining a premises if defendant’s coconspirators undertook the action. U.S. v. Rich, __ F.4th __ (6th Cir. Sept. 13, 2021) No. 18-2268.
D.C. Circuit counts mailed packages of drugs as relevant conduct for conspiracy. (254)(275) Defendant was a letter carrier who participated in a scheme to deliver packages containing marijuana to other members of the conspiracy. The conspiracy delivered at least 131 packages. At sentencing, the district court calculated defendant’s sentence under § 2D1.1 using 100 kilograms or more of marijuana. The D.C. Circuit held that the district court had not committed clear error in finding that the conspiracy trafficked in at least 100 kilograms of marijuana. U.S. v. Norman, __ F.3d __ (D.C. Cir. June 11, 2019) No. 17-3070.
8th Circuit finds methamphetamine delivered by another source was relevant conduct. (275) At defendant’s sentencing for conspiracy to distribute methamphetamine, the district court included in the offense level drugs seized from a coconspirator. Reviewing for clear error, the Eighth Circuit found that the district court had properly included as relevant conduct the quantity seized from defendant’s coconspirator. Defendant was one of two sources of methamphetamine for the conspiracy and that defendant knew of the arrival of quantities from the other source. Defendant assured his coconspirator that he was available as a source if the other source did not work out. U.S. v. Escobar, __F.3d __ (8th Cir. Nov. 26, 2018) No. 17-1014.
1st Circuit finds that prior conviction was not relevant conduct for current conviction. (275)(504) At defendant’s sentencing for drug-trafficking conspiracy, his criminal history score was enhanced due to a prior state conviction. The conviction occurred four years before his arrest on federal charges and was for possession with intent to sell a hallucinogen/narcotic. On appeal, defendant argued for the first time that his prior state conviction was part of the same federal offense for which he was sentenced and therefore should not count as criminal history. Reviewing for plain error, the First Circuit found that insufficient evidence that the prior state conviction was part of the same course of conduct or was connected to the federal conspiracy. Accordingly, the prior conviction was not relevant conduct and was properly counted as criminal history. U.S. v. Vincente, __ F.3d __ (1st Cir. Nov. 20, 2018) No. 17-2144.
11th Circuit says co-conspirator testimony supported drug quantity estimate for gang leader. (254)(275) Defendant, a member of a gang of drug dealers, was convicted of drug trafficking, firearms possession, armed robbery and assault charges. The Eleventh Circuit held that the district court did not clearly err when it found that defendant was responsible for at least 2.8 kilograms of cocaine base. Defendant was a leader in the broad drug-trafficking conspiracy. The district court was entitled to rely on the cooperators’ testimony about gang activities to approximate the drug quantity attributable to defendant. Guzman testified that he sold 1-2 grams of cocaine base a day for 11 months in 2013. He also estimated that 3-6 other gang members sold one gram a day during his tenure with the gang. Zerquera testified that he sold 2-3 grams a day and estimated that the gang members he worked with sold 3-18 grams a day, with average daily sales between 16 and 18 grams. If the gang sold only 10 grams a day for 11 months, that would be 3.3 kilograms. Even a conservative estimate based on Guzman’s numbers, established that defendant was responsible for more than 2.8 kilograms in light of his substantial role in the conspiracy and the jointly undertaken criminal activity. U.S. v. Dixon, __ F.3d __ (11th Cir. Aug. 24, 2018) No. 15-14354.
3rd Circuit holds defendant accountable for drugs in shipment that he aided and abetted. (275) Defendant was involved in a drug trafficking conspiracy that conducted business in Pennsylvania and California. In calculating his offense level, the probation officer considered the quantities of heroin and methamphetamine that defendant attempted to deliver to Kuc, an undercover agent, in California, as well as the quantity of meth shipped to Kuc in Pennsylvania. The district court adopted this guideline calculation. The Third Circuit rejected defendant’s argument, raised for the first time on appeal, that the meth sent to Pennsylvania should not have been included in the calculation of his offense level. Defendant directly participated in this transaction because he agreed to collect most of the money for the drugs when he met Kuc in California. Accordingly, it was not plain error for the district court to determine that defendant aided or abetted the transaction. U.S. v. Renteria, __ F.3d __ (3d Cir. Sept. 11, 2018) No. 17-2079.
7th Circuit attributes to defendant drug quantities possessed and sold by co-conspirators. (275) Defendant was convicted of possessing and conspiring to distribute methamphetamine. The Seventh Circuit affirmed the district court’s finding that defendant was responsible for (1) drugs that Rowland, defendant’s girlfriend, may have possessed for personal use; (2) all drugs sold by a co-conspirator to an undercover officer; and (3) $2400 in cash from drug sales. Given the drug sales defendant and Rowland had made on the day of their arrest, the district court could properly determine that all of the drugs were packaged and ready for sale in their joint venture. Personal use drugs can also be part of a common plan or scheme of a conspiracy. Based on this same theory of conspirator liability, the district court did not err in attributing to defendant all of co-conspirator’s Smith’s sales to the undercover officer. Finally, there was sufficient evidence linking the $2400 in defendant’s pocket to drugs. U.S. v. Jones, __ F.3d __ (7th Cir. Aug. 14, 2018) No. 17-2658.
8th Circuit holds defendant accountable for pills from other transactions by pill mill. (252)(275) Defendant, a registered nurse, was convicted of conspiracy charges based on her involvement in a “pill mill” conducted under the guise of a legitimate clinic. From nearly the time she was hired until the clinic closed, defendant was the only employee present on a daily basis who was licensed to write prescriptions for hydrocodone and Xanaxx. The district court’s drug quantity calculations included a number of pills directly attributable to defendant, as well as pills from other transactions by the pill mill. The Eighth Circuit found that the record amply provided a basis for the district court’s calculation. The jury found beyond a reasonable doubt that defendant had knowledge of the conspiracy. Given the “pill mill” nature of the conspiracy, the drug quantities involved were reasonably foreseeable to defendant. U.S. v. King, __ F.3d __ (8th Cir. Aug. 2, 2018) No. 17-1140.
1st Circuit includes personal use drugs in calculating drug quantity. (275) Defendant ran a drug conspiracy from his home, initially selling 10-20 grams of heroin every two months, escalating to 200 to 400 grams per month. The district court adopted the PSR’s recommendation and held him responsible for 3.23 kilograms of heroin. Defendant challenged the court’s drug quantity calculation below, but for the first time on appeal, he argued that it was error to include drugs that he personally consumed. The First Circuit found no error in including drugs possessed for personal use. It is settled law in this circuit that when a defendant participates in a drug-trafficking conspiracy, his “purchases for personal use are relevant in determining the quantity of drugs that [he] knew were distributed by the conspiracy.” U.S. v. Demers, 842 F.3d 8, 13 (1st Cir. 2016). Because defendant took part in such a conspiracy, drugs he personally consumed were properly included in calculating drug quantity. U.S. v. Pinkham, __ F.3d __ (1st Cir. July 18, 2018) No. 17-1664.
D.C. Circuit says mandatory minimum required jury finding of drug quantity for each defendant. (245) (275) Defendants were convicted of heroin conspiracy charges. They argued that the district court improperly sentenced them to the mandatory minimum for a conspiracy to distribute 100 grams or more of heroin, because the jury did not make individualized findings as to the amount of heroin attributable to each of them. The circuits are split on this question. Here, the D.C. Circuit, joined the First, Fourth, Fifth, and Ninth Circuits, in requiring individualized findings. To be sentenced to a mandatory minimum triggered by a certain quantity of drugs, a jury must find the drug quantity attributable to each defendant on an individualized basis. U.S. v. Stoddard, __ F.3d __ (D.C. Cir. June 15, 2018) No. 15-3060.
8th Circuit upholds 240-month guideline sentence for meth conspiracy. (275)(742) Defendant was convicted of methamphetamine conspiracy charges. He argued that his 240-month sentence was substantively unreasonable because the court attributed improper amounts of meth to him, denied his motion for downward departure, and failed to properly consider his history and character. The Eighth Circuit disagreed. At sentencing, the court stated that it considered every factor under 18 U.S.C. § 3553(a). Based on the evidence at trial, the court calculated that defendant was accountable for 2,265.9 grams of ice methamphetamine, resulting in a score of 36. The court then found obstruction of justice because defendant tried to influence the testimony of a witness and used a false name and birth certificate in an attempt to confuse law enforcement. His guideline range was 235-293 months, and the court sentenced him to the statutory maximum of 240 months, which was not substantively unreasonable. U.S. v. Perez-Trevino, __ F.3d __ (8th Cir. May 29, 2018) No. 17-1289.
8th Circuit finds below guidelines meth sentence was not too high. (275)(742) Defendant was convicted of methamphetamine conspiracy. The Eighth Circuit rejected defendant’s argument that the district court attributed too much meth to her. At sentencing the district court heard evidence that she had delivered five pounds of meth on one occasion. The record supported holding defendant accountable for over 4.5 kilograms of methamphetamine (ice), specifically 4,819.5 grams, putting her base offense level at 38. The court imposed the statutory maximum sentence of 240 months, which was well below the guideline range of 292-365 months. The sentence was not unreasonable. U.S. v. Martin, __ F.3d __ (6th Cir. May 14, 2018) No. 16-3864.
10th Circuit reverses for failure to make particularized relevant conduct findings. (275) Defendant pled guilty to counts arising out of his role in a methamphetamine distribution conspiracy. The district court sentenced him to 108 months, to be followed by a two-year term of supervised release. Defendant argued for the first time on appeal that the district court made no particularized findings about the relevant conduct attributable to him individually. The Tenth Circuit agreed. The district court adopted the factual findings in the PSR regarding the overall conspiracy, but those findings did not address the scope of the criminal activity that defendant agreed to jointly undertake. The district court erred in failing to make such findings, and its error was plain. U.S. v. Godinez-Perez, __ F.3d __ (10th Cir. Dec. 22, 2016) No. 15-3159.
10th Circuit finds defendant forfeited claim that co-conspirator’s drugs were outside scope. (275)(855) Defendant was convicted of drug distribution and conspiracy charges. He argued for the first time on appeal that the district court erred in attributing to him additional heroin handled by his co-conspirator, because the court failed to make a particularized finding about the scope of defendant’s criminal activity. The Tenth Circuit held that the claim was forfeited. In pre-hearing documents, defendant framed his arguments in terms of foreseeability, not scope. Without a timely objection on the specific ground now argued, the issue of the district court’s scope finding was forfeited. Because defendant did not argue for plain error review on appeal, the panel refused to address the merits of his claim. U.S. v. Bustamante-Conchas, __ F.3d __ (10th Cir. Aug. 8, 2016) No. 15-2025.
6th Circuit upholds finding more cocaine than in jury’s vedrict. (254)(275) Defendant was convicted of racketeering and drug trafficking conspiracy charges. The Sixth Circuit upheld the district court’s finding that defendant was responsible for at least 15 kilograms of cocaine, even though the jury’s verdict was only for “five kilograms or more.” There was trial testimony that the gang’s cocaine trafficking with defendant’s source was about 18 kilograms a year over the course of several years. Although some of the testimony came from witnesses who testified about a marijuana count on which defendant was acquitted, the fact that the jury might not have believed everything the witnesses said was insufficient to overturn the district court’s credibility determinations. U.S. v. Rios, __ F.3d __ (6th Cir. July 21, 2016) No. 14-2495.
D.C. Circuit reverses drug sentence that was based on conduct before defendant joined conspiracy. (275) Defendant was one of three people convicted of drug conspiracy charges. He argued for the first time on appeal that the district court clearly erred by basing his sentence in part on conduct that occurred before he joined the conspiracy. The D.C. Circuit agreed. The district court attributed to defendant 995.7 grams of heroin, the total amount associated with the conspiracy from its inception. The court based that calculation on evidence about several trips to pick up heroin spanning from May 2011 to January 2012. But defendant did not join the conspiracy until August or September of 2011. The co-conspirator testified that he made trips to New York to obtain heroin in May, June, and perhaps July of 2011. The heroin the court associated with those three trips, totaling 310 grams, should have been excluded in calculating defendant’s sentence. Subtracting 310 grams from the 995.7 grams left 685.7 grams of heroin, which corresponded to a lower base offense level. The error was plain. U.S. v. Burnett, __ F.3d __ (D.C. Cir. July 8, 2016) No. 13-3075.
7th Circuit holds defendant accountable for full amount of crack distributed by conspiracy. (254)(275) Defendant was convicted of crack cocaine conspiracy charges. The court estimated that the conspirators sold about 150 grams of crack per week. Based on defendant’s 16-week involvement in the conspiracy, the court attributed 2.4 kilograms of crack to him. Defendant argued that the only direct evidence implicating him involved a maximum of 8.5 grams of cocaine, and that the evidence did not show that the extent of the sales operation was foreseeable to him. The Seventh Circuit found sufficient evidence to support the district court’s conclusion that defendant was aware of the scope of the conspiracy, as required to attribute the full drug amounts involved during his 16-week involvement in the conspiracy. When defendant joined the conspiracy, he filled the position co-conspirator Tatum left open. Tatum testified at trial that he and another conspirator sold about $10,000 of crack per day at the height of his involvement in the conspiracy. Tatum received drugs directly from the leaders or picked them up from a stash house. It was reasonable for the district court to adopt the PSR’s finding that defendant’s involvement resembled Tatum’s; this in turn supported the finding that defendant was aware of the full scope of the conspiracy. U.S. v. Brown, __ F.3d __ (7th Cir. May 13, 2016) No. 14-1363.
7th Circuit agrees that defendant was accountable for all heroin jointly purchased with co-conspirator. (275) Defendant traveled with co-conspirator Craig to Chicago every two to three days to purchase heroin from a supplier that defendant introduced to Craig. For these purchases, defendant and Craig pooled their money together to obtain a discounted bulk rate. After each purchase, they would return to Rockford, Illinois, to weigh and divide the heroin for separate distribution. The Seventh Circuit upheld the district court’s finding that defendant was accountable for all the heroin he jointly purchased with Craig. Defendant was substantially involved in and had direct knowledge of the entire amount of jointly purchased heroin because he introduced Craig to their drug supplier, he traveled with Craig to Chicago to purchase the heroin, he pooled his money with Craig to obtain a discounted bulk rate, and he traveled with Craig to Rockford to weigh and divide the joint purchase. It was immaterial that Craig distributed his portion through a separate business venture. U.S. v. Melendez, __ F.3d __ (7th Cir. Apr. 20, 2016) No. 14-3590.
8th Circuit rules prior drug convictions were not relevant conduct to current escape offense. (275)(504) Defendant escaped from prison, where he was serving a federal drug sentence. At sentencing for the drug offense, the district court had found that two prior Minnesota convictions qualified as relevant conduct, and thus should not be included in defendant’s criminal history score. At sentencing for the current escape offense, defendant argued that these convictions should again not be included in his criminal history score, reasoning that his escape was simply a continuing consequence of the drug conspiracy. The Eighth Circuit disagreed. While defendant was in prison because of his prior offense, there was no indication that the escape was part of that conspiracy. Moreover, defendant’s escape was temporally and geographically distinct from the conspiracy, taking place in Arkansas in June 2013, while the conspiracy offense occurred in Minnesota between 2001 and 2006. There were no common victims of the two offenses and no evidence of a common scheme. The only connection between the drug conspiracy (and, by extension, the state court convictions) and the escape was that defendant was in custody on the drug conspiracy conviction when he escaped. Such a general “but for” connection was insufficient to establish relevant conduct. U.S. v. Slaughter, __ F.3d __ (8th Cir. Feb. 4, 2016) No. 14-3298.
5th Circuit upholds drug quantity finding based on capacity of plane carrying drugs. (254)(275) Defendant was involved in a Colombian conspiracy to import thousands of kilos of cocaine into the United States. He served as an air traffic controller for at least two drug flights. The second flight alone likely involved at least 1,000 kilograms of cocaine because that transaction was worth nearly $8 million. Although there was no direct evidence of the amount of cocaine on the first flight, 150 kilograms was a reasonable, perhaps even low, estimate given the capacity of the plane. The Fifth Circuit ruled that the district court did not clearly err in finding defendant responsible for 150 kilograms of cocaine. U.S. v. Rojas, __ F.3d __ (5th Cir. Jan. 28, 2016) No. 13-50998.
7th Circuit finds omission of Pinkerton instruction was harmless. (275) Defendants were convicted conspiracy to distribute controlled substances. The jury was told that defendants were responsible for “the amount of cocaine involved in the agreement, and all amounts involved in all acts of the coconspirators committed in furtherance of the conspiracy.” This instruction omitted the Pinkerton principle that co-conspirator liability extends only to criminal acts that (1) were reasonably foreseeable to the defendants; and (2) occurred during the time that they were members of the conspiracy. Defendants did not object to the instruction. One defendant’s conviction was being vacated on other grounds, and the Seventh Circuit held that the omission of the Pinkerton instruction as to the other defendant was harmless. Even with the more narrowly focused Pinkerton instruction, the jury would have attributed more than 5 kilograms of powder cocaine or 280 grams of crack to defendant. Five of the six cooperating witnesses testified that they engaged in drug transactions directly with defendant or through his middle-men, and their drug-quantity estimates alone were sufficient to trigger the mandatory minimum sentence under § 841(b)(1)(A). U.S. v. Cruse, __ F.3d __ (7th Cir. Nov. 3, 2015) No. 13-2929.
5th Circuit reverses for failure to attribute drug quantity to defendants as individuals. (245)(275) Defendants were convicted of conspiracy to possess with intent to distribute heroin. The jury found that the conspiracy involved one kilogram or more of heroin, and the district court concluded that this finding triggered the statutory minimum of 20 years’ imprisonment for two of the defendants. They challenged the district court’s use of a conspiracy-wide drug-quantity jury finding instead of an individual-specific drug-quantity jury finding. The Fifth Circuit agreed that defendants should have been sentenced based on the drug quantity attributable to them as individuals, not the quantity attributable to the entire conspiracy. For purposes of statutory minimum sentences, the court must find the quantity attributable to the individual defendant. Accordingly, the panel vacated the sentences and remanded for resentencing. U.S. v. Haines, __ F.3d __ (5th Cir. Oct. 15, 2015) No. 13-31287.
7th Circuit reverses holding defendant responsible for drugs produced and sold during his incarceration. (275) Defendant sold drugs at a housing project as part of a drug conspiracy headed by Freeman. The district court held defendant responsible for all of the drugs procured and sold by Freeman ‘s organization from March 11, 2002, through May 24, 2007, even though defendant was in prison from April 23, 2002, until September 8, 2005. The Seventh Circuit held it was clear error to hold defendant responsible for drugs produced and sold by Freeman during defendant’s incarceration. The district court relied on two phone calls, neither of which addressed drug distribution in anything but the most attenuated sense. There was no evidence that defendant’s actions in prison had any effect on the operation of the conspiracy. U.S. v. Wilbourn, __ F.3d __ (7th Cir. Aug. 26, 2015) No. 13-3715.
1st Circuit says court made sufficient findings to attribute conspiracy’s drugs to defendant. (275) Defendant was convicted of various drug possession, firearm, and conspiracy charges. He argued that he was not automatically responsible for all of the drugs involved in the conspiracy simply because he was convicted as a co-conspirator, and the district court’s failure to make an individualized finding as to the amount specifically attributable to him was error. The First Circuit found no error. Defendant was right on the law, but wrong on the facts. The PSR attributed over 538,000 kilograms of marijuana equivalent to defendant, resulting in a base offense level of 38. When defendant objected to this calculation, the district court responded that “no matter how you look at this, in the context of what the conspiracy rules are and foreseeability and all of that, he’s a[n offense] level [of] 38.” Although this was not the most detailed explanation, it showed that the district court did consider whether or not the entire drug amount was individually attributable to defendant, and concluded that it was. The court did not err in adopting the PSR’s findings. Defendant was an enforcer in the organization, sometimes delivered drugs, and would often store drugs for the conspiracy. With all of these roles, he could reasonably have anticipated that such a large quantity of drugs would be involved in the conspiracy. U.S. v. Laureano-Perez, __ F.3d __ (1st Cir. July 30, 2015) No. 13-2224.
D.C. Circuit says defendants’ responsibility for murders made drug quantity error harmless. (275) Defendants participated in a massive drug distribution organization that sold crack and other drugs, and committed numerous murders and other violent crimes. They argued that the district court improperly held them responsible for distributing the maximum amount of crack cocaine (1.5 kilograms or more) under the 2001 guidelines, without making particularized factual findings in support of each defendant’s relevant conduct. The D.C. Circuit found no error, because the district court also found each defendant responsible for several murders committed in furtherance of the drug conspiracy. Those murders maximized each defendant’s offense level (to level 43) for the conspiracy. Therefore, any error in drug quantity findings had no impact on the defendants’ offense level. U.S. v. Bostick, __ F.3d __ (D.C. Cir. June 26, 2015) No. 04-3074. XE “U.S. v. Bostick, __ F.3d __ (D.C. Cir. June 26, 2015) No. 04-3074.”
7th Circuit upholds conservative drug quantity estimate. (275) The district court found that defendant was responsible for between one and three kilograms of heroin, and the Seventh Circuit affirmed. The judge relied on testimony about how much heroin defendant sold and testimony about how much heroin he purchased to arrive at two independent, conservative estimates of drug quantity. First, based on testimony from several witnesses, the district court calculated that if defendant sold just 20 grams of heroin per week for 52 weeks of the six-year conspiracy, then he would be responsible for at least 1,040 grams of heroin. Second, based on defendant’s admissions to DEA agents and the testimony from one of his suppliers, the district court conservatively assumed that defendant purchased an average of four grams of heroin per week for five years of the six-year conspiracy. This estimate also would hold him responsible for at least 1,040 grams of heroin. Although defendant attacked the reliability of the witnesses, that was one reason why the court erred on the low side. Moreover, the judge found the testimony “generally consistent” and established that defendant “purchas[ed] large quantities of heroin over an extended period of time, and that some portion of that heroin was being sold.” U.S. v. Bozovich, __ F.3d __ (7th Cir. Apr. 7, 2015) No. 14-1435.
7th Circuit says mandatory life sentence made judicial drug quantity finding unnecessary. (245)(275) Defendant was convicted of drug conspiracy charges. He argued that the district court erred in failing to make an individualized assessment of the drug quantity attributable to him. However, defendant faced a mandatory minimum life sentence based on the jury verdict that defendant conspired to possess five kilograms of cocaine with intent to distribute, see 21 U.S.C. §841(b)(1)(A)(ii), and the government gave notice of its intent to seek an enhanced penalty based on defendant’s two prior convictions, pursuant to 21 U.S.C. §851. The district court found that defendant had two prior qualifying convictions and properly imposed a sentence of life imprisonment. Thus, the Seventh Circuit ruled that any error in calculating the quantity of drugs attributable to defendant was harmless because the district court had no choice but to impose a life sentence. U.S. v. Turner, __ F.3d __ (7th Cir. Mar. 18, 2015) No. 13-2566.
1st Circuit affirms despite court’s failure to make individualized drug quantity findings. (275) Defendant’s PSR recommended that he be held accountable for at least 48 kilograms of heroin and 48 kilograms of crack. The district court made no specific drug quantity finding, but applied a base offense level of 38 for an offense involving more than 30 kilograms of heroin, and more than 8.4 kilograms of crack. Defendant argued for the first time on appeal that the district court failed to make individualized drug quantity findings. The First Circuit agreed that the court erred, since the bare recitation of the heroin and crack cocaine threshold quantities for a base offense level of 38 did not qualify as such a finding. However, the court’s error did not meet the plain error test. First, because defendant did not object to the PSR, the district court could have relied on the PSR’s recommended finding that he was responsible for at least 48 kilograms each of heroin and crack cocaine. Second, even relying only on the lesser quantities of drugs for which the jury found defendant responsible beyond a reasonable doubt, he still would have been subject to a guidelines sentencing range that included life in prison. U.S. v. Vazquez-Larrauri __ F.3d __ (1st Cir. Feb. 13, 2015) No. 13-1061.
4th Circuit remands for failure to address scope of jointly undertaken activity. (275)(765) Defendant and his co-defendant ran two drug trafficking organizations in North Carolina. The PSR attributed to defendant 31,111 kilograms of marijuana, which included drug quantities seized from houses operated by drug suppliers in Stokesdale, North Carolina, and Lexington, Kentucky. Defendant objected to including these seized quantities. The government argued that it was reasonably foreseeable to defendant that the Stokesdale and Lexington drug suppliers would possess quantities exceeding the amount defendant attempted to purchase, and the district court agreed. The Fourth Circuit remanded, holding that the court failed to make the necessary factual findings to support its drug-quantity calculations. Foreseeability was not enough; the acts of others can be attributed to a defendant only if those acts were foreseeable to the defendant and were within the scope of jointly undertaken criminal activity. The district court made no findings addressing the scope of the criminal activity defendant agreed to jointly undertake, and the factual recitations in the PSR were insufficient. There was no evidence that defendant and the Stokesdale supplier jointly agreed to operate together for future drug deals. U.S. v. Flores-Alvarado, __ F.3d __ (4th Cir. as amended Mar. 11, 2015) No. 13-4464.
8th Circuit relies on admission of pattern of dealing to estimate drug quantity. (275) (770) Over a two-year period, police seized various quantities of methamphetamine from defendant totaling 54 grams, and more than $20,000 in cash. During an interview with a DEA agent, defendant admitted obtaining a quarter- to a half-pound of meth twice a week for two years. Co-conspirator Zeugin gave the same estimate to the agent. Based on these admissions, the district court held defendant accountable for more than 15 kilograms of meth. Defendant argued that his statements were unreliable, since they concerned his pattern of dealing drugs rather than on actual transactions. He argued that both he and Zeugin had a motive to exaggerate their activities. The Eighth Circuit found no error. The court’s finding that defendant had been truthful during his proffer interview was not clear error. Nor was the district court’s finding that his statements were corroborated by Zeugin in “pretty remarkable detail.” Moreover, the court exercised its discretion to impose a sentence below the advisory range for the very reason defendant suggested: that drug quantity was based on an estimate that was “greater than necessary to meet the goals” of sentencing. U.S. v. Atterberry, __ F.3d __ (8th Cir. Jan. 12, 2015) No. 14-1316.
8th Circuit says court’s misstatement of drug quantity was not plain error. (275) Based on defendant’s post-arrest admissions to DEA agents, defendant’s PSR recommended that he be held accountable for 23.5 kilograms of meth, with a base offense level of 38. At sentencing, the court said that the government had established that the conspiracy distributed about 15 grams or more of meth, resulting in a base offense level of 38. Defendant pointed out for the first time on appeal that a finding of 15 grams did not correlate to a base offense level of 38. The Eighth Circuit found no plain error, ruling that the court simply made a misstatement of 15 grams, rather than 15 kilograms. First, a drug quantity of 15 grams was below the 54 grams of meth that was actually seized during the two-year investigation. Second, a drug quantity of 15 grams would have resulted in a guideline range below the applicable mandatory minimum for the conspiracy count. Finally, neither party advocated for a drug quantity of 15 grams. U.S. v. Atterberry, __ F.3d __ (8th Cir. Jan. 12, 2015) No. 14-1316.
8th Circuit finds defendant could foresee that con-spiracy involved 100 or more kilograms of marijuana. (275) Defendant was convicted of conspiracy to distribute less than 50 kilograms of marijuana. At sentencing, the district court determined that defendant could have reasonably foreseen that the conspiracy, which was run by Romero, involved 100 kilograms or more of marijuana, and imposed a sentence of 57 months. The Eighth Circuit found no clear error. Given defendant’s know-ledge of the drug business generally and Romero’s operations specifically, defendant’s argument that his minor role and Romero’s secretiveness kept him from under-standing the conspiracy’s scope was unpersuasive. Defendant knew a number of actors were involved in the conspiracy, understood that Romero distributed sizable amounts of marijuana and other drugs, and personally witnessed Romero handling large quantities of marijuana. After defendant and Romero stopped dealing directly with each other, defendant continued selling marijuana he purchased from a number of individuals, including at least one individual he knew was buying from Romero, and he knew that his co-conspirators continued selling drugs for Romero. U.S. v. Horse, __ F.3d __ (8th Cir. Dec. 22, 2014) No. 14-1139.
1st Circuit says two-person conspiracy conviction satisfied individualized drug-weight determination. (275) A jury convicted defendant of conspiracy to distribute five kilos or more of cocaine. He argued that the district court erred by sentencing him without making an individualized finding of the drug weight attributable to him. The First Circuit found no error. Because defendant participated in a two-person conspiracy, the jury necessarily made an individualized drug-weight determination. That was sufficient to support the district court’s sentenc¬ing decision. U.S. v. Melendez, __ F.3d __ (1st Cir. Dec. 22, 2014) No. 13-1899.
Supreme Court allows sentence for crack cocaine even though jury found conspiracy to sell cocaine or crack. (275) Petitioners were charged with conspiring to sell mixtures containing cocaine and cocaine base. The jury was instructed that the government had to prove that the conspiracy involved measurable amounts of “cocaine or cocaine base,” and it returned a general guilty verdict. The judge found that each petitioner’s conduct involved both cocaine and crack and sentenced based on the crack guidelines. On appeal, for the first time, petitioners argued that the word “or” in the jury instruction required the judge to assume that the conspiracy involved only cocaine. In a unanimous opinion written by Justice Breyer, the Supreme Court affirmed the crack sentence, holding that under the guidelines, the judge, not the jury determines the kind and quantity of controlled substances. Moreover, even if the jury had found the substance was cocaine, the “relevant conduct” section of the guidelines, 1B1.3, requires the judge to consider all drugs that are “part of the same course of conduct or common scheme or plan as the offense of conviction.” Petitioners’ argument might have made a difference if the guideline sentence for crack had exceeded the statutory maximum for powder cocaine, but the sentences here were within the statutory limits for powder cocaine. Edwards v. U.S., 523 U.S. 511, 118 S.Ct. 1475 (1998).
1st Circuit holds defendant responsible for all cocaine when he lived at “headquarters.” (275) Defendant argued that the court erred in holding him responsible for the entire amount of cocaine involved in a drug conspir¬acy after he moved to the conspiracy’s headquarters (700 grams) because the drugs and money were stored on a different level than his living space within the apartment, there was no evidence that he moved or handled such large quantities of drugs, and there was no evidence of a close relationship between him and the leader of the conspiracy. The First Circuit found no clear error in the drug quantity determination. Although defendant lived on a different floor, he lived for at least two months in the headquarters of the conspiracy with the people who were in charge of it. He was able to see the traffic of customers coming in and out of the apartment to buy drugs, and he himself was buying quantities of crack cocaine almost daily. Furthermore, he was entrusted to deposit over $26,000 in drug-sales proceeds into the conspiracy leader’s account, and it was established that his role in the overall conspiracy was more than just minimal or minor. U.S. v. Trinidad-Acosta, __ F.3d __ (1st Cir. Dec. 5, 2014) No. 13-1830.
1st Circuit holds supplier and owner of drug point responsible for drugs sold by tenants. (275) From 2000 to 2008, defendant was the marijuana supplier to, and a co-owner of, an open air drug market in Puerto Rico. The district court estimated that the drug point had sold 977 kilograms of marijuana from 1999 through 2008. Based on defendant’s status as both the marijuana supplier and a co-owner of the drug point, the district court found this quantity was reasonably foreseeable to him. The First Circuit affirmed. The court’s use of a nine-year multiplier was not clearly erroneous, given testimony that placed him in the conspiracy no later than the beginning of 2000 until his arrest in November 2008. The court’s conclusion that each bundle of marijuana delivered by conspirators to the drug point was comprised of 25 bags of marijuana was supported by testimony from a co-conspirator. Although after 2005 defendant rented the drug point to others, he could still be held fully responsible for the drugs sold by his tenants. Defendant was still part of the conspiracy while renting the drug point, and he was aware of (and, thus, could foresee) the amount of drugs sold by his tenants. U.S. v. Sepulveda-Hernandez, 752 F.3d 22 (1st Cir. 2014).
1st Circuit affirms drug quantity that was supported by jury’s individualized findings. (275) Defendant was a member of a gang that sold drugs in Puerto Rico. He challenged the judge’s drug quantity findings, arguing that the judge relied on conspiracy-wide amounts rather than on amounts attributable to him personally or reasonably foreseeable by him. The First Circuit rejected the argument. Here, the jury made individualized drug findings for each defendant beyond a reasonable doubt. In defendant’s case, the jury checked off lines indicating that he had conspired to possess and distribute one kilogram or more of heroin, five kilograms or more of cocaine, 50 grams or more of crack, and less than 100 kilograms of marijuana. In sentencing, the judge used the jury’s one-kilogram-or-more-of-heroin finding, which triggered a statutory range of 10 years to life under 21 U.S.C. § 841(b) (1)(A). This did not offend Alleyne v. U.S., 133 S.Ct. 2151 (2013), which held that facts triggering a mandatory minimum must be submitted to a jury and established beyond a reasonable doubt. U.S. v. Acosta-Colon, 741 F.3d 179 (1st Cir. 2013).
1st Circuit affirms where court made individualized drug quantity finding. (275) Defendant was involved in a conspiracy that operated a drug point in a public housing project in Puerto Rico. He challenged the court’s drug quantity calculation, contending that it failed to make an individualized drug quantity determination The First Circuit disagreed. The record plainly reflected that the district court considered defendant’s role in the conspiracy, and made an individualized determination that he could reasonably foresee the entire amount of crack sold by the conspiracy during the time he was involved in it. Before defendant turned 18, the record supported the finding that all crack sales during that period were within the scope of his agreement and reasonably foreseeable to him. During this time period, defendant occupied many roles in the drug point, serving as a runner “in charge of” the crack, bringing packages of crack to the sellers, replenishing their supplies when they ran out, and collecting the proceeds from the sales. He served as a seller of crack on occasion. He also served as a triggerman, and would go “on a mission” to shoot members of rival organizations. Even if the evidence did not support the same conclusion with respect to his defendant’s later participation, his earlier participation alone supported the court’s finding. U.S. v. Rodriguez, 731 F.3d 20 (1st Cir. 2013).
1st Circuit says defendant could reasonably foresee drugs distributed by conspiracy. (275) Defendant was involved in a drug trafficking conspiracy that operated out of a public housing project from 2006 to 2008. The district court found that that defendant was responsible for the entire drug quantity sold by the conspiracy during the time he participated from sometime in 2007 until early 2008. The First Circuit rejected his argument that the sentencing court failed to make an individualized drug quantity determination. As a member of a conspiracy, defendant was liable not only for the drugs attributable to him, but also to those reasonably foreseeable by him. Evidence at trial indicated that defendant not only sold drugs at the drug point, but also that he was a “runner,” responsible for moving drugs from the stash house to the drug point and for collecting and delivering cash revenues from the conspiracy. The district court was thus well within the bounds of reasonableness to conclude that the entire drug quantity moved through the housing project was reasonably foreseeable to defendant. U.S. v. Santos-Rivera, 724 F.3d 925 (1st Cir. 2013).
1st Circuit finds insufficient evidence to tie defendant to drug ledgers seized from co-conspirators. (275) Defendant moved to reduce his 30-year drug sentence based on the retroactively-amended crack cocaine guidelines. The district found refused to reduce his sentence, finding that the quantity of heroin reflected in seized drugs ledgers was reasonably foreseeable to defendant, and was sufficient to support the sentence. The First Circuit held that this was clear error. The ledgers did not mention defendant, his family, or the drug points attributed to them. There was no evidence that defendant participated in the preparation of the ledgers. Nor was there any evidence directly linking defendant, his family, or the housing project where he sold drugs to the co-conspirators from whom the ledgers were seized. Finally, the ledgers covered transactions between 1990 and 1991, when defendant’s brother was the leader of the drug operation. Although defendant apparently took over business at the housing project after his brother’s arrest in 1993, there was no evidence of defendant’s role in the conspiracy when the transactions in the ledgers took place. U.S. v. Candelaria-Silva, 714 F.3d 651 (1st Cir. 2013).
1st Circuit says police officer in drug-planting scheme could foresee amount of drugs seized. (275) Defendant was part of a group of police officers convicted of fabricating criminal cases against citizens by planting drugs on them. The drugs used by the officers were stored in a metal black box in the custody of a supervisor in the division. The district court held defendant accountable for all of the drugs seized by the FBI when they searched defendants’ offices. The First Circuit rejected defendant’s argument that the quantity of drugs seized was not reasonably foreseeable to him. The district court found that this was a closely knit conspiracy, that defendant knew that the black box was one of the sources of drugs, and that he had been seen with the black box. The court also found that defendant was close to the leaders of the conspiracy and had participated in two acts of planting drugs, at least one of which was with drugs from the black box. Based on this evidence, the court concluded that the quantity of drugs seized was reasonably foreseeable to defendant. U.S. v. Cortes-Caban, 691 F.3d 1 (1st Cir. 2012).
1st Circuit upholds estimate of drugs attributable to defendant in conspiracy. (275) Defendant pled guilty to drug conspiracy charges. The First Circuit upheld the district court’s decision to hold defendant’s accountable for 9.2 kilograms of crack, rejecting his argument that the court made a conspiracy-wide determination, rather than an individualized determination, of drug quantity. The district court made plausible extrapolations from the available information. The court used the average drug weight per capsule suggested by the scientific evidence and the average drug sales per shift suggested by the cooperating witness to arrive at a sensible starting point. This starting point was favorable to defendant because it left out drugs other than crack routinely marketed by the conspiracy. In estimating the quantity attributable to defendant, the court assumed that he worked only three shifts per week and that these shifts were during the daytime. Both of these assumptions were conservative and likely understated the regularity of his presence. U.S. v. Cintron-Echautegui, 604 F.3d 1 (1st Cir. 2010).
1st Circuit holds that courier could foresee large amount of drugs in transaction. (275) Three drug traffickers agreed to purchase 35 kilograms of cocaine from undercover agents. Defendant was offered about $2000 to act as a courier. He argued that the court erred in finding him responsible for more than 3.5 kilograms, arguing that he could not foresee so large an amount. The First Circuit disagreed. First, defendant pled guilty to conspiring and attempting to possess more than five kilograms of cocaine. Moreover, the fact that defendant was going to be paid at least $2,000 for his relatively brief involvement in picking up and transporting the contraband plainly indicated that this was not a small transaction. In addition, defendant was present during a discussion at which two of the purchasers mentioned both the quantity to be purchased (35 kilograms) and the size of the down payment ($140,000), and he saw an enormous amount of cocaine displayed on a table when he first entered the garage to pick up the cocaine. U.S. v. Santos, 357 F.3d 136 (1st Cir. 2004).
1st Circuit rules court properly relied on PSR where defendant did not object. (275) Defendant argued on appeal that the district court erred in finding that defendant was responsible for more than 150 kilograms of cocaine. However, the PSR also found the drug quantity attributable to defendant to be in excess of 150 kilograms, and defendant did not object. Because drug quantity need only be determined by a preponderance of the evidence for sentencing purposes, a district court may generally rely on the PSR in making this determination. If a defendant’s objections to the PSR are unsupported, or the defendant makes no objections, the court is entitled to rely on the PSR. The First Circuit held that defendant’s sentence was not clearly erroneous. U.S. v. Morales-Madera, 352 F.3d 1 (1st Cir. 2003).
1st Circuit holds that leader was properly accountable for drugs sold by other gang members. (275) Defendant was a high-level gang member who fully participated in the gang’s drug trade. He was one of the “heads” of the gang charged with overseeing gang activities designed to protect the gang’s heroin operation. Through his leadership, he helped keep other dealers out of the gang’s turf, ensuring that he and his fellow gang members would be able to deal heroin in the area. He stepped in to supply one member’s customer when the member was out of town, and had other gang members sell drugs on his behalf. Given this, the First Circuit held that defendant was properly held accountable at sentencing for drug sales made by other gang members. U.S. v. Laboy, 351 F.3d 578 (1st Cir. 2003).
1st Circuit holds defendant accountable for unwanted cocaine delivered to him. (275) Defendant was involved in a conspiracy to distribute marijuana. During the conspiracy, a co-conspirator sent defendant a package containing one kilogram of cocaine. Defendant had not been told in advance that cocaine was being sent. According to defendant, the cocaine was unwanted because he had previously been treated for a cocaine addiction, and feared its proximity would lead to a relapse. Although defendant told his conspirators that he was withdrawing from the marijuana conspiracy, the kilogram of cocaine was divided into smaller quantities, and given to the other conspirators. Although defendant initially retained seven ounces for himself, he later gave the cocaine to another conspirator. Defendant established terms of payment for the cocaine. The First Circuit held that the district court properly held defendant accountable for the kilogram of cocaine based on his joint and constructive possession of the cocaine. Defendant was present when his co-conspirators divided the kilogram into smaller amounts for further distribution, and even had seven ounces in his own possession for a period of time. Moreover, the delivery of the cocaine alone would have sufficed to render it relevant conduct to defendant. U.S. v. May, 343 F.3d 1 (1st Cir. 2003).
1st Circuit says defendant did not withdraw from conspiracy where she agreed to help buyer contact co-conspirator. (275) The district court found defendant accountable for 1.63 grams of crack sold on December 7 by her son, a co-conspirator, to a cooperating witness (CW). Defendant argued that she withdrew from the drug conspiracy in October when she told the CW that she had stopped using drugs and would no longer help the CW acquire drugs. Defendant did not have further contact with the CW until December 7, when the CW called defendant’s residence looking for her son. The CW inquired as to the son’s whereabouts, and defendant asked if the son had just delivered crack to the CW. The CW responded that the son had, but that he was to deliver more. Defendant then agreed to call the CW if she heard from her son. A short time later, the son called the CW and said that he was on his way; he then delivered additional crack to the CW. The First Circuit found no error in holding defendant accountable for the December 7 drug transaction. Even if the district court believed defendant’s rendition of her conversation with the CW, by later agreeing to help the CW contact defendant’s son in order to procure drugs, defendant had not truly “disavow[ed] the purposes of the conspiracy.” U.S. v. Nieves, 322 F.3d 51 (1st Cir. 2003).
1st Circuit holds defendant accountable for large amount of drugs he actually transported. (275) Defendant and his company transported from Venezuela to Puerto Rico a container holding cocaine bricks weighing more than 3000 kilograms. He argued that he was not accountable for this drug quantity, because there was no evidence that he had any knowledge of the amount of drugs in the container. The First Circuit affirmed. “A defendant who conspired to transport a large quantity of drugs, but happens not to know the precise amount, pretty much takes his chances that the amount actually involved will be quite large.” U.S. v. De La Cruz, 996 F.2d 1307 (1st Cir. 1993). Moreover, even if the court’s attribution of 3017 kilograms to defendant was incorrect, the error was harmless. As long at least 150 kilograms could be attributed to defendant, the same sentencing range applied. U.S. v. Hernandez, 218 F.3d 58 (1st Cir. 2000).
1st Circuit holds smugglers accountable for full amount of shipment. (275) Police observed defendants and three co-conspirators waiting in a heavily wooded coastal area for a boatload of smuggled drugs. Agents seized eight packs containing 380 kilograms of cocaine. The First Circuit ruled that defendants were properly held accountable for the full amount of seized cocaine. The two defendants were responsible for all reasonably foreseeable quantities of cocaine that were within the scope of their conspiracy. They were present at the smuggling location with three other co-conspirators to meet a boatload of smugglers, which suggested a large-scale operation. The conspirators used three pick-up trucks and a station wagon, suggesting that a large quantity of drugs was expected. In addition, an assault weapon was found with the cocaine, suggesting that the amount of drugs would be worth protecting. U.S. v. Mateo-Sanchez, 166 F.3d 413 (1st Cir. 1999).
1st Circuit rules defendant who stored and distributed drugs could foresee extent of conspiracy. (275) Defendant participated in a conspiracy that distributed large drug quantities from various housing projects. She argued that the district court erred in determining her relevant conduct. The First Circuit found no error. The record showed that during at least part of the conspiracy, defendant stored large quantities of controlled substances, directly provided distributors with those controlled substances, collected proceeds, and maintained accounting records. As such, the expansiveness of the distribution conspiracy was reasonably foreseeable to her even though she may not have participated in every transaction. U.S. v. Candelaria-Silva, 166 F.3d 19 (1st Cir. 1999).
1st Circuit holds that court did not make sufficient drug quantity findings. (275) Defendant was convicted of drug conspiracy charges. The First Circuit vacated defendant’s sentence because the court did not make sufficient findings to support its drug quantity determination. At sentencing, the judge set defendant’s offense level at 38, but without much elaboration. Although the evidence might have supported a finding that defendant’s relevant conduct included drug transactions at two different drop points, the court did not reference any evidence to support an assessment of the volume of drugs sold at either location, and the PSR did not contain such a quantification. A drug quantity calculation cannot be upheld on the basis of a hunch. U.S. v. Marrero-Ortiz, 160 F.3d 768 (1st Cir. 1998).
1st Circuit upholds defendant’s involvement in at least 1.5 kilograms of crack. (275) Defendant was convicted of involvement in a cocaine distribution conspiracy. The First Circuit held that the government easily met its burden of proving defendant’s involvement with at least 1.5 kilograms of cocaine base. The conspiracy was a major drug distribution network that bought and sold hundreds of kilograms of cocaine and cocaine base through various drug points, including those at the housing project where defendant was a “runner.” Defendant “ran” a drug point at which approximately four kilograms of cocaine were sold monthly, and he “ran” another drug point at which approximately one half kilogram of cocaine base was sold monthly. U.S. v. Alicea-Cardoza, 132 F.3d 1 (1st Cir. 1997).
1st Circuit holds that judge made proper foreseeability findings. (275) Defendant argued that the drug quantity attributed to him was inflated and did not reflect his limited participation in a drug conspiracy. The First Circuit found this claim “wholly without merit.” The district court properly determined that defendant could have reasonably foreseen at least 15 to 50 kilograms of cocaine. Defendant acknowledged involvement in the conspiracy from January 1993 through March of 1994. His plea situated him in the center of the conspiracy’s activities, aware of its use of firearms as well as the extent of the drug dealing. A co-conspirator testified that defendant was aware of daily drug sales amounting to well over 50 kilograms in a matter of months. Moreover, the government presented a photograph in which defendant was pictured, holding a gun, as a bodyguard to the leader of the conspiracy. U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996).
1st Circuit reverses where language barrier undermined credibility of co-conspirator’s affidavit. (275) Defendant’s co‑conspirators agreed to sell five kilograms of cocaine to an undercover agent, in two transactions. Defendant was arrested carrying about two kilograms of cocaine to the conspirators. The other three kilograms were never found. The First Circuit held that the court erred in relying on a co‑conspirator’s affidavit to hold defendant accountable for the full five kilograms. The information in the affidavit was not corroborated by any of the circumstantial evidence. The government conceded that defendant and the co‑conspirator did not share a common language, yet the affidavit purported to cover defendant’s comments on drug quantity, his plan to deliver the cocaine and receive payment, his prior experience in delivery, his lack of fear, his lack of need of a gun, his prior residence in New York and his prior employment. Faced with this challenge to the co‑conspirator’s credibility, the district court erred in failing to hold an evidentiary hearing. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).
1st Circuit agrees that defendant was responsible for between 500 and 1500 kilograms of cocaine. (275) The district court held defendant accountable for between 500 and 1500 kilograms of cocaine. The First Circuit affirmed. A confidential informant testified that the conspiracy’s leader ordered defendant to supervise the importation of between 300 and 500 kilograms of cocaine from Colombia. The informant also testified that the organization was conspiring to import about 1500 kilograms of cocaine from Colombia for distribution in New York, and defendant had accompanied the informant to look for appropriate “drop zones.” Thus, there was a sufficient nexus between defendant’s conspiracy conviction and the importation efforts of the other members of the conspiracy to attribute to him between 500 and 1500 kilograms of cocaine. U.S. v. Flores-Rivera, 56 F.3d 319 (1st Cir. 1995).
1st Circuit agrees that defendants were engaged in a joint activity. (275) Defendants were convicted of drug and firearms charges. They asserted that they did not act in concert and therefore the district court erroneously aggregated the amount of cocaine that each held individually. The 1st Circuit held that defendants were engaged in a joint activity. Both defendants were together at the same bar for two consecutive nights. On the second night, they both brought only loaded handguns and similar containers of identically wrapped crack cocaine. When police approached, both defendants discarded their contraband under parked cars. Moreover, one defendant attempted to create a diversion to give the other defendant more time to stash his contraband. U.S. v. Lewis, 40 F.3d 1325 (1st Cir. 1994).
1st Circuit says large transaction was foreseeable as “natural progression” of earlier sales. (275) Defendant was a member of a conspiracy that sold a total of 896.2 grams of cocaine base to an undercover agent on six occasions in April and May of 1991. The last transaction took place on May 30, 1991, and involved 506 grams. Defendant argued that he was not accountable for the last transaction because he was neither present nor involved in it. The 1st Circuit held that the May 30 sale was the “natural progression of the earlier series of sales,” and thus within the scope of defendant’s agreement with his co-conspirators. Although the government’s evidence did not mention defendant after May 16, there was no evidence that he affirmatively withdrew from the conspiracy. U.S. v. Munoz, 36 F.3d 1229 (1st Cir. 1994).
1st Circuit holds that defendant could foresee quantity involved in last drug transaction. (275) Defendant was a member of a conspiracy that sold a total of 896.2 grams of cocaine base to an undercover agent on six occasions in April and May of 1991. The last transaction involved 506 grams. He argued for the first time on appeal that he could not have foreseen that there would be 506 grams involved in the last transaction. The 1st Circuit found it reasonable to infer that defendant knew a substantial quantity of drugs were to be sold during the last transaction. Defendant was a member of the conspiracy who joined in its general objectives. A defendant who conspires to distribute a large quantity of drugs, but does not know the precise amount, takes his chances that the amount involved will be quite large. U.S. v. Munoz, 36 F.3d 1229 (1st Cir. 1994).
1st Circuit holds pharmacists accountable for pills unlawfully distributed by other pharmacist. (275) Defendant and his son, both pharmacists in the same pharmacy, conspired to dispense about 18,000 pills without a prescription. The 1st Circuit held that the court could hold defendant accountable for pills dispensed by his son. The evidence supported a finding of a conspiracy between defendant and his son. Defendant owned the pharmacy. The unlawful sales involved a large number of pills and took place at frequent intervals over a two year period. One clerk told a drug-addict customer that it did not matter if defendant knew the clerk was selling drugs to the addict. Such an implicit agreement amounts to a conspiracy. U.S. v. Limberopoulos, 26 F.3d 245 (1st Cir. 1994).
1st Circuit says defendant could foresee at least five kilograms of cocaine in bags. (275) Defendant argued that the district court erred in holding him accountable for 25 kilograms of cocaine in two bags he had placed in the trunk of a car. He contended that the court should have made a finding as to his subjective knowledge concerning drug quantity. Defendant relied on U.S. v. Ekwunoh, 813 F.Supp. 168 (E.D.N.Y. 1993), which held that a defendant can only be sentenced for the amount of drugs he reasonably foresaw as being involved in his offense. The 1st Circuit found it unnecessary to decide this issue. Defendant received a 120-month mandatory minimum sentence under 21 U.S.C. § 841(b)(1) (A)(ii) because the bags contained at least five kilograms of cocaine. Even if foreseeability were a requirement, defendant must have foreseen that at least five kilograms were involved in his offense, because the two bags were visibly heavy, with fifteen one-kilogram packages in one bag, and ten in the other. U.S. v. Ortiz, 23 F.3d 21 (1st Cir. 1994).
1st Circuit holds that guard of “money man” could infer size of drug deal. (275) Defendant argued that he was not responsible for drugs his conspiracy negotiated to buy from undercover agents because he had no ability to produce the money to purchase the cocaine. The 1st Circuit found defendant’s personal financial ability not relevant. As a conspirator, defendant was responsible for the foreseeable acts of his co-conspirators in determining his base offense level. The court rejected defendant’s claim that the negotiations were not reasonably foreseeable to defendant. Given his presence at the final negotiations and his role as a guard for the “money man,” defendant’s general knowledge of the size of the cocaine deal was readily inferable. U.S. v. Mena-Robles, 4 F.3d 1026 (1st Cir. 1993).
1st Circuit admits defendant did not foresee precise quantity but upholds determination. (275) The district court sentenced defendant for 240 kilograms of cocaine in a warehouse that defendant had planned to transport before being apprehended. While admitting that defendant could not have foreseen the precise quantity of drugs located in the warehouse, the 1st Circuit nevertheless upheld use of the actual quantity of drugs. In light of the circumstances, defendant would reasonably have assumed that a large quantity of drugs would be located in the warehouse, and he therefore was properly held accountable for the entire quantity. U.S. v. De La Cruz, 996 F.2d 1307 (1st Cir. 1993).
1st Circuit says defendant who provided services to drug distributor could foresee large quantities. (275) Although not directly involved in drug transactions, defendant provided various services to a drug conspirator, including setting up his communications network and running license plate registry checks on prospective customers. The 1st Circuit affirmed that defendant was responsible for 3.2 kilograms of cocaine, finding it was at the “low end” of the range of reasonable figures. Defendant knowingly assisted the drug ring operations, well aware that the conspirator was involved in the importation and distribution of large amounts of cocaine. He saw large caches of cocaine in the conspirator’s home and made purchases for himself. The district court treated defendant favorably by limiting his accountability to these amounts. U.S. v. Innamorati, 996 F.2d 456 (1st Cir. 1993).
1st Circuit holds defendant accountable for “hunk” of cocaine despite his nervous reaction to it. (275) While visiting his conspiracy’s safehouse, defendant observed a 250-gram “hunk” of cocaine. When defendant saw this “hunk,” he told his co-conspirator to put it away because it made him nervous. The 1st Circuit affirmed that it was proper to hold defendant accountable for the 250-gram “hunk.” The cocaine was reasonably included in the total amount of cocaine that defendant could have foreseen the conspiracy to distributed, regardless of whether the amount made him nervous. If there were evidence that defendant effectively withdrew from the conspiracy after he saw the “hunk” and realized the scope of the operation, this would be a different case. U.S. v. Innamorati, 996 F.2d 456 (1st Cir. 1993).
1st Circuit rules that court must make foreseeability finding as to each conspirator. (275) The district court determined that 137.2 kilograms of cocaine were involved in a conspiracy, and sentenced each conspirator accordingly. The 1st Circuit rejected the government’s contention that individualized findings of the amount of drugs foreseeable to each conspirator are not necessary for temporally limited, small and simple conspiracies. The guidelines require that the government prove by a preponderance of the evidence that a conspirator could reasonably foresee the amount contemplated the conspiracy. The district court made an adequate foreseeability finding as to one conspirator. He acted as the “kicker,” who flew from Colombia transporting 10 igloo coolers, each filled with 20 kilograms of cocaine, and then dropped the cocaine from the plane when the pilot reached the designated area. The evidence was insufficient as to two other defendants. They were recruited to repair the retrieval boats. The district court should have stated more fully the evidence upon which it based its finding of foreseeability as to these two conspirators. U.S. v. Valencia-Lucena, 988 F.2d 228 (1st Cir. 1993).
1st Circuit finds no responsibility for drugs sold without defendant’s knowledge. (275) Defendant sold an undercover agent a pound of marijuana on two separate occasions. Defendant and the agent then discussed a sale of five pounds of marijuana and a handgun. Since police considered defendant’s supplier to be a more important target than defendant, they decided to exclude defendant from any future deals, and instead buy directly from the supplier. The supplier’s phone number was obtained from a confidential informant, and the sale was conducted without defendant’s knowledge. The 1st Circuit reversed the determination that defendant was responsible for the marijuana sold by his supplier directly to the agent. Although defendant and his supplier had formed a conspiracy to sell marijuana, there was no evidence that the third sale was in furtherance of a common plan between them. Although there was evidence that defendant told the supplier of the agent’s interest in another sale, there was nothing to indicate that the call was intended to facilitate a supplier-agent deal. U.S. v. Castellone, 985 F.2d 21 (1st Cir. 1993).
1st Circuit affirms consideration of drugs in same conspiracy as offense of conviction. (275) Defendant was convicted of conspiring to distribute cocaine. He argued that the district court erred in including in the calculation of his base offense level quantities of cocaine he distributed in furtherance of a putatively separate conspiracy involving a different distributor. The 1st Circuit rejected this argument, since while analyzing the sufficiency of the indictment, it had previously rejected the “separate conspiracy” theory. U.S. v. Bello-Perez, 977 F.2d 664 (1st Cir. 1992).
1st Circuit finds no gender discrimination in sentencing for five kilograms of cocaine. (275) Two male defendants contended that the district court discriminated against them on the basis of their gender, when it found that the two women in the conspiracy were responsible for only two kilograms, while defendants were responsible for five kilograms. The 1st Circuit affirmed, since there was sufficient evidence to conclude that defendants were responsible for five kilograms of cocaine. Defendants, as well as their female co-conspirators, were held responsible for the two kilograms they attempted to purchase from a government informant. In addition, relying on defendants’ admissions that they sold $6,000 worth of cocaine per day through their record shop, the court calculated that defendants were also responsible for distributing an additional three kilograms during the course of the conspiracy. Although defendants’ characterized their statements as mere “puffery,” the sentencing judge who heard the trial testimony was entitled to credit the admissions. U.S. v. Figueroa, 976 F.2d 1446 (1st Cir. 1992).
1st Circuit says conspirator not accountable for drugs distributed prior to joining conspiracy. (275) Investigators conducted three separate drug transactions with two drug conspirators. Defendant was only involved in the last transaction, because he was in prison during the first two transactions. Nevertheless, his offense level was based on the drugs involved in all three transactions. The 1st Circuit reversed, holding that the transactions which occurred prior to defendant’s entry in the conspiracy could not be considered relevant conduct for sentencing purposes. The base offense level of a co-conspirator should reflect only the quantity of drugs he reasonably foresees as the object of the conspiracy after he joins the conspiracy. In deciding what is reasonably foreseeable, the earlier transactions of which he is aware will be useful evidence. However, a new entrant cannot have his offense level enhanced for prior drug distributions just because he knew they took place. U.S. v. O’Campo, 973 F.2d 1015 (1st Cir. 1992).
1st Circuit affirms that transactions conducted without defendant’s participation were part of conspiracy. (275) Defendant, a part-owner of a bar, introduced an undercover agent to a co-conspirator, who sold cocaine to the agent. Over the next month, defendant and his co-conspirator were involved in various drug transactions with the undercover agent. After August 2, three additional drug transactions involving a total of 753 grams of cocaine were conducted between the co-conspirator and the agent. None of these three transactions originated at defendant’s bar or involved defendant in any overt manner. The 1st Circuit affirmed the district court’s inclusion in defendant’s base offense level of the 753 grams of cocaine involved in the three transactions that occurred after August 2. Defendant introduced the undercover agent to his co-conspirator for the express purpose of facilitating drug transactions. Defendant was aware of the nature and salient details of the relationship that developed between the two men. There was no evidence of defendant’s withdrawal from the conspiracy or of any other intervening event. When defendant’s bar was searched in November, the office safe contained cocaine. U.S. v. Garcia, 954 F.2d 12 (1st Cir. 1992).
1st Circuit holds that amended indictment did not limit district court’s ability to consider relevant conduct. (275) Defendant and a co-conspirator were charged with conspiracy to distribute cocaine from an unknown date until November 29, 1990. As part of defendant’s plea agreement, the government amended the indictment to reflect that the charged conspiracy ended August 2, 1990. The plea agreement did not represent what effect, if any, the amended indictment would have on defendant’s sentence. The 1st Circuit rejected defendant’s claim that it violated his plea agreement for the district court to consider drugs involved in transactions that occurred after August 2. Any expectation that the sentence would not be based upon the post-August 2 drugs was not reasonable. The plea agreement itself contained no such provision, and defendant admitted during the plea hearing that nothing had been omitted from the agreement. The plea agreement recited that no promises or inducements outside the agreement had been made. The district court took pains to insure that defendant was aware that the court was not bound by the government’s sentencing recommendation. U.S. v. Garcia, 954 F.2d 12 (1st Cir. 1992).
1st Circuit affirms that defendant could reasonably foresee drug shipment. (275) Defendant was involved in a drug conspiracy. He contended that the district court improperly attributed to him a 10 kilogram shipment of cocaine which a co-conspirator brought, since he was unaware of the shipment. The 1st Circuit rejected this argument. In a drug conspiracy, there is no requirement that a defendant actually know that a particular shipment was made, so long as the shipment was “a foreseeable fruit of the conspiracy.” Whether or not defendant actually knew of the shipment, given the size and scope of the conspiracy, there was no doubt that the shipment was reasonably foreseeable. Moreover, defendant introduced the co-conspirator to the leader of the conspiracy as a possible courier, and was aware that the leader was awaiting cocaine from Colombia. At a minimum, defendant played some role in effectuating the shipment, which by itself was sufficient to bring the shipment into the calculation. U.S. v. David, 940 F.2d 722 (1st Cir. 1991).
2nd Circuit says Blakely does not require conspirator to know type or quantity of drugs he directly possesses. (275) Defendants claimed that the district court failed to instruct the jury that, in order to convict them of drug conspiracy, the jury had to find that defendants knew, or could reasonable foresee, that the conspiracy involved the distribution of more than one kilogram of heroin. The Second Circuit found no error. The jury found defendants in joint possession of more than one kilogram of heroin Where each defendant was actually in possession of the drugs, foreseeability of the amount possessed is not needed because actual knowledge of the amount is assumed. The panel noted in passing “that Blakely v. Washington, 124 S.Ct. 2531 (2004), does not alter our prior caselaw holding that a defendant need not know the type or quantity of drugs when he is in direct possession of them as part of a conspiracy.” Moreover, because defendants’ sentences fell within the maximum statutory penalty and were authorized by the jury verdict, the sentences did not implicate any issue raised in Apprendi v. New Jersey, 530 U.S. 466 (2000) or Blakely. U.S. v. Castrillon, 376 F.3d 46 (2d Cir. 2004).
2nd Circuit holds that defendant’s agreement for multiple shipments made challenge to single shipment irrelevant. (275) Defendant was involved in a drug trafficking conspiracy that transported truckloads of marijuana from Texas to Connecticut. The jury found that defendant’s was responsible for between 50 and 100 kilograms of marijuana. The government contended that defendant was liable for at least 85.62 kilograms, the amount seized by police from one truck upon its arrival in Connecticut. Defendant contended that the quantity should be offset by at least 8.4 kilograms, the portion of the shipment that was designated for Clarke. The Second Circuit found that defendant failed to establish that the district court clearly erred by attributing 80 to 100 kilograms of marijuana to him. The district court found that defendant joined in an agreement to make multiple shipments from Texas to Connecticut, rather that just the one shipment that led to his arrest. This essentially made the dispute over Clarke’s 8.4 kilograms irrelevant. U.S. v. Richards, 302 F.3d 58 (2d Cir. 2002).
2nd Circuit says full amount distributed by organization was foreseeable to defendants. (275) The district court found that defendant Blount was responsible for about 60 kilograms of cocaine and defendant Streater was responsible for about 120 kilograms, based on the organization’s distribution of about 1/2 kilogram a week and the respective lengths of their participation in the conspiracy. The Second Circuit affirmed. The finding as to Blount was supported by detailed testimony both from co-conspirators who purchased wholesale and from co-conspirators who sold retail quantities on the street. In sentencing Streater, the court also based its findings on the trial testimony, which made it clear that Blount reported to Streater and that Streater had ultimate control over all aspects of the organization. Streater ran the organization for eight years, while Blount participated for only three. Moreover, given the overarching positions of Streater and Blount in the organization, the court was entitled to infer that the total amounts of cocaine distributed by the organization, while not necessarily foreseeable to one of the lower-level participants, was plainly foreseeable to Streater and Blount. U.S. v. Blount, 291 F.3d 201 (2d Cir. 2002).
2nd Circuit holds defendant accountable for drugs involved in transaction he brokered. (275) Defendant contended that the district judge erred in holding him responsible for the 3.15 kilograms of heroin that Au Yong sold to Ah Chau. The Second Circuit found no error because the evidence showed that defendant had essentially brokered the deal between Au Yong and Ah Chau. Au Yong testified that Ah Chau had expressed an interest in purchasing heroin from him, but that Ah Chau had just been released from jail and Au Yong consequently “didn’t have much confidence in him.” He testified further that he sought defendant’s advice because he knew defendant was a friend and partner of Ah Chau. During the prison visit, defendant promised Au Yong that he would contact Ah Chau, and at their next meeting he told Au Yong that he had spoken with Ah Chau and felt that “there is no problem.” Relying on this assurance, Au Yong sold a total of 3.15 kilograms of heroin to Ah Chau on four different occasions. This testimony furnished a sufficient basis for a finding that defendant had brokered the deal between his two acquaintances and consequently was liable as a co-conspirator. It was not decisive that defendant did not introduce the participants in the drug transaction, or that he may have been unaware of the third and fourth transactions. U.S. v. Yu, 285 F.3d 192 (2d Cir. 2002).
2nd Circuit holds that court improperly excluded “foreign drugs” from relevant conduct. (275) From 1989 to 1991, defendants were involved in offloading many tons of hashish from vessels in the St. Lawrence River into Canada and the United States. In 1991, one such offload went awry, and barrels of hashish were discovered floating in the river. The district court found that the vast majority of the hashish on board the vessels was destined for Canada and had been the subject of Canadian prosecution. The court thus concluded that only 2% of the hashish, the amount that entered the U.S., should be counted as part of defendant’s relevant conduct. The Second Circuit held that the court erred in excluding the “foreign drugs” from its determination of defendants’ relevant conduct. Nothing in the guidelines limits their application to “activity undertaken against the United States.” This holding does not conflict with U.S. v. Azeem, 946 F.2d 13 (2d Cir. 1991), which held that foreign crimes, i.e. crimes not committed against the United States, should not be considered relevant conduct under § 1B1.3. Azeem involved drugs transported from Pakistan to Cairo in a transaction separate from the offense of conviction. Because that transaction “was not a crime against the United States,” the court held that the drugs should not have counted towards the defendant’s base offense level. By contrast, the crimes in this case were not foreign crimes; the Maritime Drug Law Enforcement Act is a U.S. criminal statute that specifically covers conduct outside the U.S. U.S. v. Greer, 285 F.3d 158 (2d Cir. 2002).
2nd Circuit holds that if no conspiracy, personal use drugs must be excluded from calculation. (275) Defendant was convicted of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841. He argued that the district court should have excluded from its drug quantity calculus the drugs that he intended to consume rather than distribute. The Second Circuit agreed, holding that in sentencing defendants convicted of possession with intent to distribute, drugs meant only for personal use must be excluded from the drug quantity assessment. Cases cited by the government in favor of counting personal use drugs involved defendants who were also charged with conspiracy. Where there is no conspiracy, the act of setting aside drugs for personal consumption is not only not a part of a scheme or plan to distribute these drugs, it is actually exclusive of any plan to distribute them. Here, although the evidence suggested that defendant intended to distribute cocaine, it did not speak to the question of whether defendant intended to distribute all of the cocaine in his possession. U.S. v. Williams, 247 F.3d 353 (2d Cir. 2001).
2nd Circuit holds that defendant intended to sell cocaine even though he later substituted flour. (275) Defendant and his girlfriend made two drug sales to a confidential informant. Defendant then agreed to sell the informant six more ounces of cocaine. After his girlfriend was unable to get the drugs for the third sale from her source, they decided to substitute six ounces of flour for the cocaine. The Second Circuit ruled that defendant’s intent to sell six ounces of cocaine supported the district court’s decision to include those drugs in its drug quantity calculation, even though he later decided to substitute the flour in its place. Application Note 12 to § 2D1.1 states: “In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level … [H]owever, … the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.” An intent once formed and expressed, as here, satisfies the intent requirement, even though the defendant later changes his minds and acts without such intent, in this case by selling flour instead of cocaine. Even if the court accepted defendant’s highly debatable claim that he withdrew from the conspiracy by deciding to sell flour, withdrawal from a conspiracy serves only to end a conspirator’s liability for acts taken thereafter by another conspirator. U.S. v. Dallas, 229 F.3d 105 (2d Cir. 2000).
2nd Circuit holds defendant accountable for drug quantities distributed after he was incarcerated. (275) Defendant was a member of the Latin Kings, a street gang whose primary business was the distribution of drugs. The Second Circuit held that defendant was accountable for drugs distributed by Latin King members after he was incarcerated in November 1992. Defendant continued to run the drug block from prison until the summer of 1993. Because defendant was directly involved in distributing these drugs, the court was not required to make a reasonable foreseeability analysis. Defendant’s direct participation also supported the PSR’s conclusion that the payments he received after his incarceration were drug proceeds rather than charitable contributions to his family. U.S. v. Diaz, 176 F.3d 52 (2d Cir. 1999).
2nd Circuit holds that leader should have foreseen organization distributed at least 1.5 kilograms of crack. (275) The district court found that, as leader of a drug gang, defendant was responsible for all the drugs distributed by the gang. The Second Circuit affirmed, since wiretapped conversations showed that defendant was aware of almost every aspect of the gang’s widespread drug activity. Defendant (1) discussed with another gang officer the need to establish a drug tax on dealers so proceeds could be used to pay for gang communications, meeting places, bond for incarcerated members and gun purchases; (2) participated and advised a co-conspirator on resolving conflicts between dealers; (3) encouraged another co-conspirator to establish a security squad to maintain harmony among the gang’s drug dealers; advocated that members and officers open new drug blocks; and (5) encouraged another co-conspirator to discipline a suspected informant. Considering defendant’s involvement in almost every aspect of the drug conspiracy, defendant knew or reasonably should have known that his organization distributed at least 1.5 kilograms of crack. U.S. v. Diaz, 176 F.3d 52 (2d Cir. 1999).
2nd Circuit agrees that defendant could foresee quantity of drugs imported into U.S. (275) Two men agreed to smuggle 8 kilograms of heroin from Asia through the Dominican Republic and into the U.S. Defendant, who regularly purchased heroin from one of these men, expressed an interest in purchasing some of this heroin. In exchange for a portion of the 8 kilograms at a reduced price, defendant agreed to escort two of the couriers as they traveled with the heroin from the Dominican Republic to Puerto Rico and then to New York. Defendant challenged the district court’s conclusion that the amount of the shipment was known or reasonably foreseeable to him, claiming he was merely a buyer of one kilogram of cocaine. The Second Circuit agreed that defendant could foresee the quantity of drugs shipped. Defendant oversaw two of the couriers as they flew from the Dominican Republic to Puerto Rico with about four kilograms of heroin strapped to their bodies. Defendant was, in effect, the courier of the couriers. U.S. v. Collado, 106 F.3d 1097 (2d Cir. 1997), overruled on other grounds by U.S. v. Ortiz, 143 F.3d 728 (2d Cir. 1998).
2nd Circuit rules court applied proper standard for drug conspiracy. (275) Defendant was convicted of conspiring to import 8 kilograms of heroin into the country. He argued that the district court held that his mere awareness of the scope of the conspiracy was sufficient to render him responsible for the full amount of the imported heroin. The Second Circuit ruled that the district court properly applied the “either known to . . . or reasonably foreseeable to” standard. The court found that defendant was “aware of” what was going on with respect to the drugs and he participated in the conspiracy to bring it into the country. It noted that the issue was the “scope, his knowledge of the scope of the agreement.” U.S. v. Collado, 106 F.3d 1097 (2d Cir. 1997), overruled on other grounds by U.S. v. Ortiz, 143 F.3d 728 (2d Cir. 1998).
2nd Circuit finds defendant intended to sell genuine rather than counterfeit pills. (275) Defendant pled guilty to conspiracy to distribute a controlled substance. He argued that 4,400 pills that contained only salt and caffeine should be excluded from the drug quantity calculation because he intended from the start to sell these harmless pills as part of a scheme to defraud his buyers. The Second Circuit ruled that the counterfeit pills were properly included in defendant’s drug quantity calculation because he intended to sell and deliver real drugs. In several taped conversations between defendant and his buyer, defendant made admissions that showed his intent to sell genuine pills. Although one could not expect to hear defendant confess to his buyer that he was sending counterfeit drugs, on their face, defendant’s statements indicated an intent to sell a controlled substance. In addition, defendant admitted selling two months earlier 400 genuine MDMA pills. Finally, defendant called the buyer a third time to warn him that the package of 4,400 pills was “hot,” not to sign for it, to deny knowing the person to whom the package was sent, and to remove any incriminating evidence from his house. Defendant would only have made such a call if he believed the package contained genuine pills. Defendant had no supporting proof for his claim that he intended to sell counterfeit pills. U.S. v. Hazut, 140 F.3d 187 (2d Cir. 1998).
2nd Circuit agrees defendants could have foreseen distribution of 1.5 kilograms of crack. (275) Defendants were convicted of various crimes in connection with their participation in a large drug enterprise. They challenged the district court’s decision to hold them accountable for 15 kilograms of crack cocaine. The Second Circuit easily affirmed their sentence, since the threshold amount for their base offense level was 1.5 kilograms, and both defendants knew or should have reasonably known that their organization distributed at least 1.5 kilograms of crack. During the period in which defendants were members of the gang, the gang regularly converted kilogram quantities of cocaine into crack, and received about $10,000 a day from crack sales. A single gang purchase would have met the 1.5 kilogram threshold. Defendants participated in killing two suppliers and taking their cocaine. One defendant, who arrived to help dispose of the bodies, asked how much cocaine they got, and expressed frustration when the answer was “only . . . two keys.” U.S. v. Miller, 116 F.3d 641 (2d Cir. 1997).
2nd Circuit holds that co‑conspirator’s acquittal did not affect defendant’s drug quantity. (275) Defendant argued for the first time on appeal that since he did not agree upon the amount of heroin (125 grams) with anyone except the undercover agent, that amount could not be used for sentencing purposes. The Second Circuit rejected this claim. In determining that defendant conspired to purchase 125 grams, the court could have considered defendant’s own plea allocution, in which he recited both the amount of heroin and the presence and role of his co‑conspirator. The fact that the co‑conspirator was acquitted of the conspiracy charge in a later separate proceeding did not preclude the district court’s determination. At the co‑conspirator’s trial, the government failed to establish his participation in the conspiracy beyond a reasonable doubt. At defendant’s sentencing, by contrast, the government met the much lower burden of establishing by a mere preponderance that amount of heroin which was the object of the same conspiracy. U.S. v. Gomez, 103 F.3d 249 (2d Cir. 1997).
2nd Circuit uses lowest possible drug quantity where negotiated amount was not foreseeable. (275) Defendant was present when his cousin attempted to purchase 12 kilograms of cocaine from a confidential informant for $70,000. He was convicted of a drug conspiracy. The district court found that the 12 kilograms under negotiation was not foreseeable to defendant. It also determined that defendant had no knowledge of any particular quantity of cocaine and that no particular quantity was foreseeable to him. Therefore, it sentenced him for the lowest drug quantity possible—less than 25 grams. The government argued that foreseeability was not an issue because this was “personally undertaken criminal conduct.” The Second Circuit acknowledged that a defendant may be sentenced for personally undertaken criminal activity where he is charged only with jointly undertaken activity, But the court affirmed nevertheless, because the district court found that defendant had no knowledge of the drug transaction. Since he was not aware that the purpose of this trip was to purchase cocaine, and because he did not constructively or actually possess the drugs, he could not be sentenced under § 1B1.3(a)(1)(A). U.S. v. Chalarca, 95 F.3d 239 (2d Cir. 1996).
2nd Circuit vacates for failure to make finding as to scope of defendant’s agreement. (275) Defendant was convicted of a conspiracy to distribute cocaine and cocaine base. The district court held defendant responsible for all the cocaine involved in the conspiracy because it was reasonably foreseeable to defendant. On appeal, defendant argued that the court failed to make a required finding as to whether the quantity of drugs sold by the conspiracy were within the scope of his conspiratorial agreement. The Second Circuit agreed. The scope of criminal activity is not necessarily the same as the scope of the entire conspiracy. To hold a defendant accountable for the acts of others, a district court must make two particularized findings: (1) that the acts were within the scope of the defendant’s agreement, and (2) that they were foreseeable to the defendant. The court here failed to make a finding as to the scope of defendant’s agreement. U.S. v. Hernandez-Santiago, 92 F.3d 97 (2d Cir. 1996).
2nd Circuit requires finding as to scope of criminal activity defendant agreed upon. (275) Defendant was employed as a commissioned telephone solicitor for five and one-half weeks. Clearly by the end of his employment he knew that the operation was a fraudulent advance-fee “bucket shop,” but there was no evidence that his involvement extended beyond his own sales efforts. The Second Circuit held that the guidelines require the district court to make “a particularized finding of the scope of the criminal activity agreed upon by the defendant. The court said this holding is consistent with U.S. v. Anderson, 39 F.3d 331 (D.C. Cir. 1994), [overruled on rehearing en banc, 59 F.3d 1323 (D.C. Cir. 1995)], and U.S. v. Evbuomwan, 993 F.2d 70 (5th Cir. 1993). The evidence in the record indicated that defendant’s agreement did not encompass the fraudulent activity of the other sales representatives. The case was remanded to permit the government to present contrary evidence. U.S. v. Studley, 47 F.3d 569 (2d Cir. 1995).
2nd Circuit finds that defendant could foresee more than 100 grams of heroin were involved in importation scheme. (275) The 2nd Circuit found that defendant could reasonably foresee that more than 100 grams of heroin were involved in conspiracy. He was fully aware of a co-conspirator’s dealings with an undercover agent, including an attempted one-kilogram sale that took place before defendant entered the conspiracy. Defendant knew that the agent had never placed an order for less than 125 grams of heroin. Thus, it was apparent that defendant was aware that the conspiracy involved more than 100 grams of heroin both before and after his entry into the conspiracy. U.S. v. Podlog, 35 F.3d 699 (2nd Cir. 1994).
2nd Circuit says defendant need not be able to foresee all drugs in her possession. (275) Customs agents found 167.8 grams of heroin in the soles of defendant’s shoes. Defendant was also transporting 636.3 grams of heroin internally. She argued that her sentence should have been based solely on the quantity of drugs she knew she possessed, thus excluding drugs found in her shoes. The 2nd Circuit held that a defendant may be sentenced for the entire quantity of drugs in her possession, even if the total quantity was not foreseeable. Under U.S. v. Imariagbe, 999 F.2d 706 (2nd Cir. 1993), a defendant convicted of importing drugs may be sentenced for the total quantity of drugs, even if she thought she possessed a lesser quantity. Conspiracy cases are treated differently to limit a defendant’s liability for the actions of others. In a possession case, however, there is no reason why a defendant who knowingly traffics in drugs should not bear the risk that his conduct is more harmful to society than he intends or foresees. U.S. v. De Velasquez, 28 F.3d 2 (2nd Cir. 1994).
2nd Circuit affirms that conspiracy’s distribution of five to 15 kilograms of cocaine was foreseeable. (275) Defendant argued that since his salary was only $800 per week, he could not foresee that his conspiracy dealt with between five and 15 kilograms of cocaine. The 2nd Circuit found ample evidence to support the foreseeability determination. The evidence of defendant’s extensive participation in the conspiracy included testimony that defendant had delivered one and one-half kilograms of cocaine to one witness once or twice a week for several months, testimony of a cocaine deliverer that dating back to 1986 defendant had accompanied all deliveries of more than one pound, and that defendant had provided protection to the organization and collected its drug debts. U.S. v. Tracy, 12 F.3d 1186 (2nd Cir. 1993).
2nd Circuit agrees that conspiracy involved more than 10 kilograms of heroin. (275) The 2nd Circuit upheld the district court’s determination that defendants were involved with more than 10 kilograms of heroin. The evidence at trial was overwhelming that the conspiratorial activity involved more than 10 kilograms of heroin: there was evidence that a mill in which one defendant worked produced six kilograms a week; that another defendant obtained 700 grams of heroin a week for the organization in 1986; that another defendant obtained 700-gram blocks of pure heroin from his Chinese suppliers; and that another defendant, in the four months just prior to his arrest, grossed $8-10 million. U.S. v. Rosa, 11 F.3d 315 (2nd Cir. 1993).
2nd Circuit relies on $30,000 as evidence that defendant could foresee large drug quantity. (275) The 2nd Circuit upheld the application of a mandatory minimum sentence, relying on defendant’s receipt of $30,000 as evidence that he could have reasonably foreseen that he was participating in a conspiracy involving more than five kilograms of cocaine. Defendant admitted that he was to receive $30,000 as payment for picking up a package. He also acknowledged that based upon this large payment, he knew that he was involved in helping to import a controlled substance. While it was questionable whether defendant was capable of off-loading all 51 kilograms at one time, he should have reasonably known by virtue of his payment that he was facilitating the importation of a large quantity of drugs. U.S. v. Pico, 2 F.3d 472 (2nd Cir. 1993).
2nd Circuit says guideline forseeability standard must be applied to conspiracies under 21 U.S.C. § 846. (275) Defendant received a mandatory minimum 10-year sentence after being convicted of conspiring to distribute over five kilograms of cocaine in violation of 21 U.S.C. section 846. Because of the applicability of section 846, the district court never determined whether the five kilograms involved in the conspiracy was reasonably foreseeable to defendant, as would have been required under the guidelines. The government contended that defendant’s reasonable foreseeability as to the amount of cocaine involved in the conspiracy was not required under section 841(b) as it is under the guidelines. The 2nd Circuit rejected this broad approach, and held that the same “reasonable foreseeability” standard of the guidelines must be applied to sentencing for conspiracy under section 846. U.S. v. Martinez, 987 F.2d 920 (2nd Cir. 1993).
2nd Circuit affirms that defendants could reasonably foresee that their drug conspiracy distributed over 10 kilograms of heroin. (275) Defendants were workers at one of the “spots” at which a large drug organization sold heroin. The 2nd Circuit affirmed that defendants could have reasonably foreseen that the organization distributed over 10 kilograms of heroin during their participation in its affairs. Seized drug records showed that $575,000 worth of heroin was sold from defendants’ spot in 1988, and $265,000 in 1989. During the time that defendants were members of the organization, they attended several organization- wide social events hosted by the leader of the organization. In addition, defendants knew or should have known of the extent of the operation because of the professionally packaged nature of the heroin sold, the percentage basis on which they sold it, and the central management team to which they reported. U.S. v. Rivera, 971 F.2d 876 (2nd Cir. 1992).
2nd Circuit remands for findings on amount of narcotics reasonably foreseeable to defendants. (275) Defendants were convicted of a drug conspiracy. The 2nd Circuit found that resentencing was necessary because the sentencing judge did not make findings with regard to the amount of narcotics that were reasonably foreseeable to each defendant. A defendant convicted of conspiracy may be sentenced for relevant conduct committed by a co-conspirator in furtherance of the conspiracy only if that conduct was reasonably foreseeable by the defendant. Because the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced under the law of conspiracy, a sentencing judge may not, without further findings, simply sentence a defendant according to the amount of narcotics involved in the conspiracy. Judge Newman concurred. U.S. v. Lanni, 970 F.2d 1092 (2nd Cir. 1992).
2nd Circuit remands to consider foreseeability of co-conspirators’ crack involvement. (275) Defendant contended that he was unaware that the conspiracy of which he was a member involved types of narcotics other than heroin, and therefore it was error to sentence him on the basis of all seized drugs. The 2nd Circuit remanded, since the district court did not make findings as to whether defendant knew or could have reasonably foreseen his co-conspirators’ possession of crack. A defendant who is a member of a drug conspiracy may be held responsible for all transactions which were either known or reasonably foreseeable to him. The sentencing court should make findings as to knowledge and forseeability issues. The guidelines place the burden of establishing the lack of knowledge and lack of foreseeability on the defendant. U.S. v. Negron, 967 F.2d 68 (2nd Cir. 1992).
2nd Circuit affirms that defendant could have foreseen quantity of drugs sold by conspiracy. (275) Defendant admitted selling 183.5 grams of cocaine. The 2nd Circuit affirmed the district court’s determination that defendant could have reasonably foreseen that the conspiracy would distribute over twice that amount, which increased defendant’s offense level by two. The sentencing judge found that during 1987 and in July 1988 defendant had been part of a conspiracy that distributed substantial amounts of drugs, and that he was either involved in the distribution of those drugs or knew that his co-conspirators were distributing them. U.S. v. Blair, 958 F.2d 26 (2nd Cir. 1992).
2nd Circuit remands again because sentence was based on co-conspirator’s unexplained income. (275) Defendant was a “lieutenant” in a cocaine conspiracy. The district court initially computed his offense level by (1) approximating how much cocaine was distributed based on the amount of money spent by the leader during the conspiracy, and (2) attributing the full amount to defendant. In the first appeal in this case, U.S. v. Mickens, 926 F.2d 1323 (2nd Cir. 1991), the 2nd Circuit approved this method in general, but found insufficient evidence linking defendant to the quantity of cocaine. On remand, the district court again attributed the entire quantity to defendant. The 2nd Circuit again reversed and remanded, ruling that under the existing evidence, defendant should be sentenced only for the cocaine he personally sold. If new evidence established what portion of the leader’s income was attributable to the conspiracy in which defendant was involved, he could be sentenced for that quantity, as long as that quantity was reasonably known by or foreseeable to defendant. U.S. v. Jacobs, 955 F.2d 7 (2nd Cir. 1992).
2nd Circuit affirms that defendant was capable of producing 50 kilograms of cocaine. (275) Defendant contended that it was error to determine that he was involved in a conspiracy to sell 50 or more kilograms of cocaine, since he was incapable of producing 50 kilograms. The 2nd Circuit rejected this contention. There was testimony at trial that a few weeks before the attempted transaction defendant said he possessed in excess of 100 kilograms, and made a statement to DEA agents that he was involved in a conspiracy to distribute 50 kilograms of cocaine. Moreover, the fact that the kilogram of cocaine found in his hotel room was 93% pure suggested that defendant was a well-connected dealer, capable of obtaining a large quantity of cocaine. U.S. v. Lopez, 937 F.2d 716 (2nd Cir. 1991).
2nd Circuit rules evidence insufficient to determine that amount of drugs was foreseeable to defendant. (275) Defendant was convicted of possessing certain “listed chemicals” with intent to manufacture cocaine. A chemist testified that the chemicals might be used to produce eight to ten kilograms of cocaine, and the sentence was based on an intent to produce in excess of five kilograms. The 2nd Circuit reversed, ruling that there was insufficient evidence to support a finding that defendant actually knew or could have foreseen that more than five kilograms could have been produced. The cocaine “recipe” was not written in defendant’s handwriting and there was no evidence that defendant had any knowledge of how much cocaine might have been produced with the chemicals. Moreover, some ingredients were missing. Although the absence of those ingredients might not prevent a court from determining the amount of drugs that probably could have been produced, they were costly and difficult to obtain. Since no reliable estimate could be made, defendant should have been sentenced under guideline § 2D1.10. U.S. v. Perrone, 936 F.2d 1403 (2nd Cir. 1991).
2nd Circuit reverses determination that defendant was accountable for cocaine he never purchased. (275) Defendant negotiated to obtain a kilogram of cocaine to sell to an undercover government agent, but ultimately bought from another source because it was being sold for a better price. The district court sentenced him based on two kilograms of cocaine. The 2nd Circuit reversed, ruling that the object of the conspiracy was to obtain only one kilogram to sell to the government agent. The kilogram eventually obtained was in lieu of, not in addition to, the kilogram on which defendant had negotiated to buy. This would have reduced his offense level from 78 months to 63 months. Although the court departed downward to 48 months for defendant’s substantial assistance, the court remanded for resentencing. There was no way of knowing what sentence would have been imposed had the court known the correct guideline range. U.S. v. Moon, 926 F.2d 204 (2nd Cir. 1991).
2nd Circuit says defendant not responsible for drugs calculated on basis of co-conspirator’s unexplained income. (275) The district court estimated that the conspiracy distributed over 50 kilograms of cocaine, based on a co-conspirator’s unexplained income of $2,000,000. The court attributed the full amount to defendant, but the 2nd Circuit reversed. In general, where the quantity seized does not reflect the scale of the offense, it is proper to approximate the quantity based on financial records. However, it was improper to attribute the full approximated quantity to the defendant. This unfairly held him accountable for four years of his cooconspirator’s unreported income. The funds may have been accumulated at any prior time, and may have come from any source, including the co-conspirator’s independent personal transactions or some other narcotics conspiracy. U.S. v. Mickens, 926 F.2d 1323 (2nd Cir. 1991).
2nd Circuit finds defendant not accountable for drugs distributed prior to his entry into conspiracy. (275) The 2nd Circuit found that defendant’s offense level had been improperly calculated on the basis of drugs distributed prior to his entry into a drug conspiracy. A late-entering co-conspirator can be sentenced on the basis of the full quantity of drugs distributed by other members of the conspiracy only if, when he joined the conspiracy, he could reasonably foresee the distributions of future amounts, or knew or reasonably should have known what the past quantities were. The district court failed to find that defendant should have known that his co-conspirator’s prior sales had totaled four kilograms, and the record did not support such a finding. The conspiracy existed for four years, and defendant was a member for less than a day. Although it was inferable from a defendant’s conversation with the co-conspirator that there had been two or more sales during the four-year period, and that these past distributions involved more than minimal quantities, the vague conversation was equally consistent with lesser sales. U.S. v. Miranda-Ortiz, 926 F.2d 172 (2nd Cir. 1991).
2nd Circuit upholds calculation of “dime bag” seller’s offense level based upon quantity possessed by supplier. (275) Defendant pled guilty to distributing two vials of crack which he purchased for $20 from a co-defendant. Defendant was not charged or convicted of conspiracy, and argued it was improper to calculate his offense level based upon the 586 vials of crack possessed by the co-defendant at the time of his arrest. The 2nd Circuit rejected defendant’s argument that under the pre-1989 version of the guidelines, only a defendant guilty of conspiracy could be held responsible for the foreseeable conduct of others in furtherance of jointly-undertaken criminal activity. Here, the district judge was entitled to find that defendant was accountable for the co-defendant’s possession of 586 vials of crack. Although defendant was a mere “dime bag seller on the street,” there was sufficient evidence to conclude that defendant was ready, willing and able to sell as many dime bags as the co- defendant could supply. U.S. v. Joyner, 924 F.2d 454 (2nd Cir. 1991).
2nd Circuit holds defendant need not know how much cocaine is involved in conspiracy. (275) Defendant was involved in a conspiracy to smuggle 60 kilograms of cocaine into the United States in the gas tank of a van. He contended that he should not have been held responsible for the entire 60 kilograms because he did not know how much cocaine was involved. The 2nd Circuit rejected his argument, finding that knowledge of the amount is not required as long as the court determines by a preponderance of the evidence that defendant knew or could reasonably have foreseen the quantity involved. U.S. v. Cardenas, 917 F.2d 683 (2nd Cir. 1990).
2nd Circuit upholds finding that distribution to others in same 3-week period was “relevant conduct.” (275) During negotiations to sell 3 ounces of cocaine to the informant, the defendant claimed that he had just sold 9 ounces of cocaine to a customer in New Haven. The 2nd Circuit held that “this temporal relationship, together with the fact that the same quality of cocaine was involved in one of the distributions to [the informant], provides adequate support for the district judge’s determination that these transactions were part of the same course of conduct or part of a common scheme or plan.” U.S. v. Vazzano, 906 F.2d 879 (2nd Cir. 1990).
2nd Circuit affirms sentence even though judge made misstatements about quantity of drugs involved. (275) At sentencing, the judge made several misstatements as to the amount of cocaine involved in a conspiracy to distribute drugs. However, the findings were within the “range” of the jury’s special verdicts. The 2nd Circuit affirmed the sentence because the judge presided over the trial and heard all the testimony. Further, defendant offered no evidence contesting the facts found during sentencing. U.S. v. Campuzano, 905 F.2d 677 (2nd Cir. 1990), overruled on other grounds by U.S. v. Thomas, 274 F.3d 655 (2nd Cir. 2001).
2nd Circuit requires district court to include quantities of drugs that were neither seized nor charged. (275) In sentencing the defendant, the district court declined to consider additional amounts of drugs that were neither seized nor charged in the indictment. The 2nd Circuit reversed, holding that the guidelines require consideration of any additional amounts of cocaine that were “traded as part of the same scheme or plan for which [the defendant] was convicted.” The court relied on the drug conspiracy language of § 2D1.4(a) and the “relevant conduct” section of the guidelines, § 1B1.3. U.S. v. Schaper, 903 F.2d 891 (2nd Cir. 1990).
2nd Circuit holds that “steerer” is responsible for entire amount of drugs possessed by the seller. (275) Defendant “steered” an undercover agent to a seller of crack cocaine. The undercover agent negotiated for the sale of three vials of crack. Shortly thereafter the seller was arrested with 63 vials of crack cocaine. The district judge ruled that under the relevant conduct section of the guidelines, 1B1.3, the defendant was responsible for the entire 63 vials, even though he was only charged with the 3 vials. The 2nd Circuit affirmed, noting that “without steerers, buyers would either find it difficult to locate sellers or sellers would have to risk exposure to public view.” Under the relevant conduct section, amounts of drugs not mentioned in the charge are relevant “whether or not conspiratorial,” if they are part of the same “course of conduct.” U.S. v. Copeland, 902 F.2d 1046 (2nd Cir. 1990).
2nd Circuit finds that drug transactions were known to defendant or were reasonably foreseeable. (275) Defendant claimed that the district court erroneously based his drug offense level on transactions which were, “not known to him or reasonably foreseeable to him” (§ 2D1.4, Application Note 1). The 2nd Circuit disagreed, noting that (1) the defendant was present at the October 2, 1987 transaction and worked in tandem with a co-defendant who offered to sell cocaine (2) on July 14, 1988, he was present at the site of a transaction and furnished to undercover agents a beeper where he or a co-defendant could be reached, and (3) on Sept. 7, 1988, he had not withdrawn from the conspiracy as he claimed. U.S. v. Candito, 892 F.2d 182 (2nd Cir. 1989).
2nd Circuit finds that total amount of cocaine discovered was proper weight to consider in setting base offense level. (275) Defendant, who had merely acted as a lookout, claimed that the sentencing court erred in setting his base offense level according to the total amount of cocaine discovered at another location after his arrest. The 2d Circuit rejected the argument. Under § 1B1.3, defendant was responsible for all acts he aided and abetted that were part of the same course of conduct or common scheme as the offense of conviction. Thus, the amount of cocaine considered was correct, despite the defendant’s minimal knowledge of the scope of the transaction and his minimal control over its execution. U.S. v. Paulino, 873 F.2d 23 (2nd Cir. 1989).
2nd Circuit rules the court may consider defendant’s role in overall scheme despite dismissal of conspiracy count. (275) The Second Circuit affirmed a 55-month upward departure which was based upon the defendant’s admitted role in a drug distribution scheme. Even though the government dismissed the conspiracy count in exchange for a guilty plea to distributing less than five grams of heroin, the court found that the guidelines are sufficiently flexible to permit a district court to look beyond the “charged offense” to the “real facts” of the offense when determining the sentence. The commentary to Section 1B1.3 permits the judge to consider the quantities of drugs not specified in the count of conviction if the drugs involved are a part of a common scheme. Because the defendant admitted his participation in the overall scheme, it was not improper for the judge to consider it, and the sentence was therefore reasonable under 18 U.S.C. § 3742. U.S. v. Guerrero, 863 F.2d 245 (2nd Cir. 1988).
3rd Circuit says court properly aggregated drug quantities involved in conspiracy. (275) Defendant argued that the district court erred in finding that more than 500 grams of methamphetamine were involved in the conspiracy because no single sale or transaction involved over 500 grams. He argued that § 841(b)(1)(A) penalizes a “violation” of § 841(a) and that each sale or transaction should be viewed as a separate violation. See U.S. v. Winston, 37 F.3d 235 (6th Cir. 1994) (court may not aggregate multiple drug transaction in determining amount of drugs involved for § 841(b) purposes). The Third Circuit found Winston did not extend to multiple drug transactions as part of a conspiracy. Here, all eight drug transactions comprised the conspiracy to which defendant pled guilty. Conspiracy is a single, unified offense. Moreover, a sentence in a criminal conspiracy is based upon all relevant conduct and not merely offense conduct. Therefore, in computing defendant’s sentence under the guidelines, the district court was entitled to take into account the 500 grams of meth mixture involved in the conspiracy. U.S. v. Gori, 324 F.3d 234 (3d Cir. 2003).
3rd Circuit holds failure to challenge drug quantity finding was ineffective assistance. (275) The district court held defendants accountable for the amount of heroin distributed throughout the life of the drug conspiracy, including amounts distributed before they joined the conspiracy. In a § 2255 petition, defendants argued that counsel was ineffective in failing to appeal the district court’s lack of individualized drug quantity findings. The Third Circuit agreed that the court’s findings did not conform to Amendment 78 of the guidelines or its holding in U.S. v. Collado, 975 F.2d 985 (3d Cir. 1992), and that counsel’s failure to challenge the findings constituted ineffective assistance. The amendment to Note 1 to § 1B1.3 provides that “[w]here it is established that the conduct was neither within the scope of the defendant’s agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake,” such conduct should not be included in the relevant conduct. Collado requires “a searching and individualized inquiry into the circumstances surrounding each defendant’s involvement in the conspiracy … to ensure that the defendant’s sentence accurately reflects his or her role.” Absent unusual circumstances, “conduct that occurred before the defendant entered into an agreement cannot be said to be in furtherance of or within the scope of that agreement.” Counsel’s failure to pursue this issue was not reasonable. Defendants suffered prejudice from the error, since there was a reasonable probability that, if the issue had been properly raised on appeal, the court would have vacated the defendants’ sentences. U.S. v. Mannino, 212 F.3d 835 (3d Cir. 2000).
3rd Circuit holds enforcer liable for all drugs that passed through conspiracy. (275) Defendant was an enforcer for Gibbs, a major drug dealer. Defendant’s job was to protect Gibbs by hurting or killing people who Gibbs perceived as a threat, thus facilitating Gibbs’ ability to deal drugs. The Third Circuit held that defendant was accountable for the entire amount of drugs that passed through the conspiracy during the time he worked as an enforcer for Gibbs. The role of an enforcer is often central to the viability of a drug conspiracy. An enforcer who has engaged in more than peripheral enforcement activities ought to be chargeable for any drugs passing through the conspiracy during his “enforcership”—at least for those deals made within the geographic region in which he operated. However, because there are different types of enforcers in a conspiracy, a court must be careful to consider the scope of the putative enforcer’s role. In the present case, during the limited time in question, Gibbs was the only leader of the conspiracy. Defendant was involved in the conspiracy for about a month as the enforcer for the head of the conspiracy, and the amount attributed to him reflected only the drugs that passed through during that month. U.S. v. Gibbs, 190 F.3d 188 (3rd Cir. 1999).
3rd Circuit uses co-conspirators’ stipulations to attribute drugs to leader of conspiracy. (275) Defendant was convicted of drug conspiracy charges and conducting a continuing criminal enterprise. The district court found that the quantity of drugs for which defendant was responsible could not be discerned from the trial testimony. The best estimate available was the drug quantity stipulations that defendant’s co-conspirators entered after pleading guilty to conspiring with defendant. The Third Circuit held that the district court properly relied on the co-conspirators’ drug quantity stipulations. The district court sentenced defendant to the same quantity of drugs his co-conspirators stipulated to, 20 kilograms of powder cocaine and 250 grams of cocaine base. Defendant was the organizer of the conspiracy. The quantity of drugs that his co-conspirators took responsibility for was a reliable basis for estimating the quantity of drugs attributable to him. U.S. v. Russell, 134 F.3d 171 (3d Cir. 1998).
3rd Circuit holds that hearsay evidence did not meet reliability test. (275) Defendant’s cousin negotiated to buy 10 kilograms of cocaine for $190,000. The cousin borrowed $6,000 from defendant to pay the balance of the purchase price. Defendant drove his cousin to the deal, and the two cousins were arrested. After the arrest, the cousin told an FBI agent that defendant was fully aware of the quantity of drugs involved. However, at sentencing, under oath, the cousin said defendant never knew the amount of cocaine involved. The district court relied on the hearsay statement to hold defendant accountable for over five kilograms of cocaine. The Third Circuit reversed, holding that the hearsay did not meet the “sufficient indicia of reliability” standard. Defendant’s past drug transactions with his cousin involved relatively small amounts of cocaine, and defendant only lent a relatively small amount of money to his cousin. Although the two bags of money were in the car, there was no evidence that defendant had a full view of the bags. Moreover, the cost of buying just under five kilograms was close to $100,000, which also could have taken up two bags. U.S. v. Brothers, 75 F.3d 845 (3d Cir. 1996).
3rd Circuit says defendant could foresee use of military aircraft to transport drugs. (275) Defendant conspired to import more than 500 grams of cocaine into the U.S. He received a § 2D1.1(b)(2) enhancement for importing a drug using an aircraft other than a regularly scheduled commercial air carrier. The Third Circuit affirmed, since defendant could foresee his co-conspirator’s use of a military aircraft to import the drugs. Defendant was convicted of conspiracy to import cocaine, and was liable for all the foreseeable acts of his co-conspirator in furtherance of the conspiracy. Defendant knew his co-conspirator was going to Panama on a military aircraft. It was certainly foreseeable that the co-conspirator would return on one as well. The use of the military aircraft was clearly in furtherance of the cocaine conspiracy because it was an integral part of the plan to import cocaine into the U.S. U.S. v. Bethancourt, 65 F.3d 1074 (3d Cir. 1995).
3rd Circuit holds defendant accountable for drugs that he assisted in distributing. (275) The 3rd Circuit found no error in attributing to defendant 530 kilograms supplied to a conspiracy by one source and 470 kilograms supplied to the conspiracy later by a source in Florida. The district court concluded that defendant was not only aware of drug shipments from the first source, but he had a special rapport with him and acted as his intermediary. The court also found that defendant not only knew about the Florida source, but acted as a bodyguard in that connection. Defendant also assisted in the distribution of this cocaine by using violence (including two shootings) to ensure that drug dealers in the conspiracy’s territory worked through the conspiracy. U.S. v. Price, 13 F.3d 711 (3rd Cir. 1994).
3rd Circuit finds defendant was not held responsible for drugs sold after his incarceration. (275) The district court found defendant responsible for at least 500 kilograms of cocaine. Defendant claimed that he was improperly credited with cocaine distributed by the conspiracy after he was jailed. The 3rd Circuit rejected this characterization. The district court held defendant responsible for 488 kilograms that the conspiracy received from Florida before defendant’s incarceration. In addition, the district court found that one witness, who testified about delivering five kilograms to the conspiracy meant to say 50 kilograms. Alternatively, the court found defendant responsible for two different 12-kilogram quantities referred to by another co-conspirator. U.S. v. Price, 13 F.3d 711 (3rd Cir. 1994).
3rd Circuit upholds finding defendant responsible for cocaine received by conspiracy. (275) The district court held defendant responsible for 530 kilograms of cocaine obtained by the conspiracy in which he was involved. The 3rd Circuit found that the district court did not simply attribute all of the conspiracy’s drug transactions to defendant, but made an individualized inquiry as required by Circuit caselaw. The court found defendant was in a unique position to have personal knowledge about the scope of the organization, and should have reasonably foreseen the quantity of drugs it distributed. He assisted those transactions by supplying and distributing drugs, relaying information on distribution plans, and advising the leaders of the organization how to structure it and the deals. U.S. v. Price, 13 F.3d 711 (3rd Cir. 1994).
3rd Circuit outlines standard for accomplice attribution of drug quantities. (275) Defendants were convicted of a drug conspiracy and several related counts. In determining the amount of drugs attributable to each defendant, the 3rd Circuit outlined the standard for attributing to a conspirator drug quantities distributed by an accomplice. The court noted that early cases interpreted the relevant conduct provisions very broadly, but that the Sentencing Commission amended application note 1 to section 1B1.3 effective November 1989 to make the standard for accomplice attribution “significantly more stringent.” Rather than evaluating the scope of the conspiracy as described in the count of conviction and the defendant’s awareness of the possibility that co-conspirator would distribute quantities in addition to amounts distributed by defendant, courts should look to the defendant’s role in the conspiracy. While it is appropriate to hold a defendant who exhibits a substantial degree of involvement in the conspiracy accountable for reasonably foreseeable acts committed by a co-conspirator, the same cannot be said for a defendant whose involvement was much more limited. U.S. v. Collado, 975 F.2d 985 (3rd Cir. 1992).
3rd Circuit says defendant cannot be sentenced for drugs distributed before he joined conspiracy. (275) The district court attributed to defendants amounts distributed by the conspiracy as early as April 1988, even though there was no evidence of their involvement until September 21, 1988. The 3rd Circuit remanded, because the court made no finding as to when defendants’ membership in the conspiracy began. It would be improper to attribute to defendants amounts distributed by their co-conspirators before they entered the conspiracy. “The relevant conduct provision limits accomplice attribution to conduct committed in furtherance of the activity the defendant agreed to undertake. In the absence of unusual circumstances, not present here, conduct that occurred before the defendant entered into an agreement cannot be said to be in furtherance of or within the scope of that agreement.” U.S. v. Collado, 975 F.2d 985 (3rd Cir. 1992).
3rd Circuit affirms that brothers were responsible for drugs distributed by each other during conspiracy. (275) The 3rd Circuit affirmed that it was proper to attribute to two brothers drug sales made by the other to a third party during the course of their conspiracy. Not only were the brothers aware of each other’s transactions, they also assisted each other to some extent in those transactions. For example, during one recorded phone call, one brother told the buyer that his brother had everything ready for a scheduled drug deal. Moreover, a witness testified that she accompanied the buyer to the apartment the brothers shared to obtain heroin and that on at least one of those visits, both brothers were present. U.S. v. Collado, 975 F.2d 985 (3rd Cir. 1992).
3rd Circuit upholds reliance on cocaine in acquitted count. (275) Defendant was convicted of a drug conspiracy running from August 9, through September 6, 1989, but was acquitted of aiding and abetting a transaction which took place on August 10, 1989. The 3rd Circuit found no error in including the cocaine involved in the August 10 transaction in the calculation of defendant’s offense level, despite his acquittal. A conspirator is responsible for the acts of his co-conspirators during the course of the conspiracy. U.S. v. Salmon, 944 F.2d 1106 (3rd Cir. 1991).
3rd Circuit upholds calculating sentence based upon drugs reasonably foreseeable by defendant. (275) Defendant pled guilty to conspiracy to possess and distribute less than five kilograms of cocaine. However, defendant’s plea agreement stated that the total amount of cocaine that it was “reasonably foreseeable” for the conspiracy to handle was between 5 and 14.9 kilograms. The 3rd Circuit held that it was proper for the district court to sentence defendant on the basis of the amount set forth in the plea agreement, noting that every court of appeals to consider the issue has held that a sentencing court may consider drug quantities outside the offense of conviction. U.S. v. Williams, 917 F.2d 112 (3rd Cir. 1990).
4th Circuit requires jury to decide drug quantity for each conspirator, even after Booker. (275) Defendants were convicted of drug conspiracy charges. In U.S. v. Collins, 415 F.3d 304 (4th Cir. 2005), the 4th Circuit held that in order for a trial court to determine which of three penalty subsections of 21 U.S.C. § 841(b) applies to defendants convicted of a § 846 drug conspiracy, the jury must determine the quantity of drugs attributable to each conspirator. The trial court’s instructions here violated Collins by failing to instruct the jury that it was obligated to determine the threshold drug quantities attributable to each individual defendant. The government contended that the Collins was no longer good law after the Supreme Court’s decision in Booker. The Fourth Circuit rejected this contention. Booker is solely a Sentencing Guidelines case. Collins does not relate to the guideline range, but instead explains how the statutory penalties in § 841(b) are to be determined for each conspirator. U.S. v. Brooks, 524 F.3d 549 (4th Cir. 2008).
4th Circuit relies on alleged co-conspirators’ testimony even though defendant was found not guilty of conspiracy. (275) At trial, three co-conspirators each testified regarding defendant’s routine distribution of cocaine and cocaine base, as well as his involvement in certain specific transactions. Based on this testimony, as well the drugs recovered from defendant’s duffle bag, the district court attributed 1.5 kilograms of crack to defendant. Defendant argued that the court erroneously credited the testimony of his alleged co-conspirators despite the fact that defendant was found not guilty of conspiracy to distribute cocaine base. The Fourth Circuit found no clear error. The district court observed these witnesses during trial and found their testimony regarding defendant’s extensive crack distribution activities to be credible. Additionally, items found during the search of the hotel corroborated the testimony that defendant had been engaged in the distribution of crack well before his arrest. U.S. v. Jones, 356 F.3d 529 (4th Cir. 2004).
4th Circuit holds defendant accountable for drugs found in co-defendant’s possession. (275) During the execution of a search warrant, government agents discovered on defendant’s person four grams of cocaine base. Further, a co-defendant, for whom defendant “cooked” cocaine into crack, was found to be in possession of more than six grams of cocaine base. The Fourth Circuit agreed that for sentencing purposes, defendant was responsible for five or more grams of crack cocaine. A conspirator may be held accountable for all quantities of drug attributable to the conspiracy so long as it was reasonably foreseeable that the drugs would be involved in the conspiracy and that the drugs were possessed within the scope of the conspiratorial agreement. Defendant admitted to processing cocaine base into crack for his co-defendant’s distribution operation. At the time of her arrest, over 10 grams of crack were found in her residence, either in her possession or in her co-defendant’s possession. U.S. v. Osborne, 345 F.3d 281 (4th Cir. 2003).
4th Circuit says sentencing judge not required to rely on forfeiture verdict to determine drug quantity. (275) Defendant contended that the district court erred by not relying upon the jury’s $1 million forfeiture verdict in calculating the quantity of drugs foreseeable to them for sentencing purposes. The Fourth Circuit disagreed. Under the sentencing guidelines, the district court has an obligation to make independent factual findings regarding relevant conduct for sentencing purposes. In the present case, the judge considered all of the information available to him in making his sentencing determination. “No limitation shall be placed in the information concerning the background, character, or conduct” of a defendant that a court may consider for sentencing purposes. 18 U.S.C. § 3661. The “attempt to impose … forfeiture verdicts as artificial limitations on the district judge’s sentencing discretion turns 18 U.S.C. § 3661 on its head.” U.S. v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part on other grounds, U.S. v. Rhynes, 218 F.3d 310 (4th Cir. 2000) (en banc).
4th Circuit holds defendant accountable for drugs transported by co-conspirator. (275) One of defendant’s co-conspirators testified at trial that he transported at least a half a kilogram of heroin from New York as a part of a drug operation run by defendant’s father. Defendant played an active role in this criminal enterprise. The co-conspirator also testified that he and defendant sold heroin together in Washington, D.C. Based on the co-conspirator’s testimony, the district court found that at least 400 grams of heroin were reasonably foreseeable to defendant. The Fourth Circuit held that this factual determination was not clearly erroneous. U.S. v. Ward, 171 F.3d 188 (4th Cir. 1999).
4th Circuit finds major supplier and broker could foresee all drug quantities and were leaders. (275) The 4th Circuit affirmed that defendants’ involvement was sufficiently extensive to hold them accountable for the full amount of drugs. One defendant, was a major supplier of drugs for distribution by other members of the conspiracy, and the second was a heavily-involved broker and sometime middleman supplier. The same evidence supported the court’s determination that the defendants had leader or organizer roles in the conspiracy. U.S. v. Banks, 10 F.3d 1044 (4th Cir. 1993).
4th Circuit finds drug sales were not part of jointly undertaken activity, despite foreseeability. (275) The government appealed the district court’s decision to hold defendant accountable only for the 14 kilograms of heroin with which he was directly involved, despite finding that the conspiracy’s total distribution of 34.7 kilograms was reasonably foreseeable to him. The 4th Circuit affirmed. To hold a defendant responsible for drugs distributed by his co-conspirators, the drugs must be both reasonably foreseeable and “in furtherance of the jointly undertaken criminal activity.” The scope of jointly undertaken activity is not necessarily the same for every participant. The district court’s finding that the distribution of the additional drug quantities was outside the limited activity defendant undertook was not clearly erroneous. U.S. v. Banks, 10 F.3d 1044 (4th Cir. 1993).
4th Circuit uses “reasonable foreseeability” to compute drug amounts for mandatory minimum sentence. (275) The 4th Circuit held that a court must determine the quantity of narcotics reasonably foreseeable to each individual conspirator before applying the mandatory minimum sentencing provisions of 21 U.S.C. §841(b). The legislative history of section 846 led the court to conclude that a sentencing court should assess the quantity of narcotics attributable to each conspirator by determining what was reasonably foreseeable. Here, the district court erred in failing to determine the quantity of narcotics reasonably foreseeable to defendants before imposing the mandatory minimum sentences. U.S. v. Irvin, 2 F.3d 72 (4th Cir. 1993).
4th Circuit holds defendant accountable for drugs purchased by brother during same transaction. (275) Defendant, his brother and a co-conspirator attempted to purchase a total of seven grams of cocaine base from an informant. Two grams were for defendant, and the other five grams were for defendant’s brother. The 4th Circuit affirmed that defendant was responsible for the entire seven grams of cocaine base, since the evidence showed a single conspiracy by the three defendants to purchase a total of seven grams. All three defendants were present when the crack was actually purchased. All three left the scene together. All of the drugs was delivered by the brothers to the third defendant, who was in possession of the crack when they were arrested. The brother’s purchase of the five grams was reasonably foreseeable to defendant as well as within the scope of the jointly-undertaken agreement. U.S. v. Adams, 988 F.2d 493 (4th Cir. 1993).
4th Circuit refuses to include additional 30 kilograms of cocaine. (275) Defendant pled guilty to two cocaine conspiracies, one involving more than 500 grams of cocaine and the other involving 30 kilograms of cocaine. The 4th Circuit ruled that there was no basis for holding defendant accountable for the 30 kilograms of cocaine involved in the second conspiracy. The quantity of cocaine for which defendant acknowledged responsibility during the plea hearing fell far short of the quantity found by the district court. The determination could not have been based upon the indictment, because the indictment did not attribute a specific quantity to defendant, as it did to other participants. The 30-kilogram finding could not be supported by the presentence report, since the probation officer who wrote the report acknowledged that the 30-kilogram finding was not based on information provided by the government, but on the amount alleged in the indictment. Finally, the district court lacked sufficient evidence on which to make an independent determination of the amount of cocaine for which defendant should have been held responsible. Judge Widener dissented. U.S. v. Gilliam, 987 F.2d 1009 (4th Cir. 1993).
4th Circuit affirms defendant was responsible for entire shipment of heroin. (275) The 4th Circuit rejected defendant’s claim that the amount of heroin attributed to him wrongly included amounts distributed by the conspiracy before he joined it. Two co-conspirators testified that defendant was an active participant in the conspiracy for at least 10 months, during which time he participated in transactions involving 1000 grams of heroin. One conspirator testified that a courier smuggled another 600 grams of heroin into the United States, and as part of the ongoing conspiracy, she gave 150 grams of this shipment to defendant to distribute. It was not clear error for the district court to attribute the other 450 grams to defendant for sentencing purposes as well, since the entire shipment was within the scope of the conspiracy and foreseeable to the conspirators. U.S. v. Williams, 977 F.2d 866 (4th Cir. 1992).
4th Circuit affirms that defendant need not be convicted of conspiracy to be accountable. (275) The 4th Circuit affirmed that defendant could be held accountable for drug quantities involved in a conspiracy, even though conspiracy charges against him were dropped when he pled guilty to possession charges. A sentencing court can consider quantities of cocaine involved in a conspiracy even when the defendant pleads guilty only to possession with intent to distribute and even though the quantity expressed in the count to which he pled guilty was smaller. There was sufficient evidence to support the district court’s determination that 1.6 kilograms were involved in the conspiracy. A co-conspirator admitted sales of $2,500 per day (with one gram selling for $100), seven days a week, during a five month period. Such sales figures would support a determination of 3.5 kilograms. U.S. v. Ellis, 975 F.2d 1061 (4th Cir. 1992).
4th Circuit affirms that defendant was member of conspiracy at time six kilogram transaction took place. (275) The 4th Circuit rejected defendant’s contention that he was not yet a member of a drug conspiracy at the time a co-conspirator traveled to Florida to obtain six kilograms of cocaine in September of 1988. A witness testified that he began working in the organization in 1986, that he was promoted to “lieutenant” a year to a year and a half later, and that at the time of his promotion, defendant had been working for him for about three or four months. Another witness testified that she began working in the organization in September of 1988, and that defendant was already there when she got there. Since there was sufficient evidence to support the conclusion that defendant was a member of the conspiracy in September 1988, it was proper to hold him responsible for the six kilograms. U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992).
4th Circuit affirms that there was sufficient evidence linking negotiations to defendant’s conspiracy. (275) The 4th Circuit affirmed attributing to defendant at sentencing 20 kilograms of cocaine which another drug dealer was negotiating to purchase. Although the dealer represented himself to the undercover agents as a wholesaler for several different individuals, there was evidence in the record that the dealer, if not a de facto member of defendant’s drug ring, had at least close ties to the organization. For example, during the course of the dealer’s negotiations, he made repeated references to defendant’s husband, who was the leader of the drug operation, and even identified the husband as a business associate. At one point the dealer took two undercover agents to meet the husband at a club that the dealer and the husband co-owned. There was no clear error in determining that there was a sufficient nexus between the conspiracy and the 20 kilograms of cocaine for sentencing purposes. U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992).
4th Circuit includes cocaine even though it had been shipped before defendant joined the conspiracy. (275) Defendant objected to including in her offense level 500 grams of cocaine that were transported from New York in late August 1989. She contended that this occurred before she became a member of the conspiracy. The 4th Circuit upheld including the drug shipment in defendant’s offense level, since the evidence showed that defendant was involved in the distribution of the cocaine even though it had been obtained from New York before she joined the conspiracy. U.S. v. Johnson, 943 F.2d 383 (4th Cir. 1991).
4th Circuit holds defendant accountable for additional sales made by partner for one year after defendant was out of conspiracy. (275) Defendant was in partnership with a co-defendant in a cocaine distribution ring until the partner refused to work with him because of his drug abuse. The two renewed their business relationship a short time later after defendant advised the partner that he had some contacts in North and South Carolina. The two made one trip to South Carolina during which they sold one kilogram of cocaine and defendant introduced his partner to his contacts. They also made one trip to North Carolina and delivered cocaine to another of defendant’s contacts. Shortly thereafter, they made a second trip to South Carolina, which resulted in defendant being forced out of the business after he deserted the partner and stole his car and a large amount of cocaine. The district court held defendant accountable for the sales the partner made in the Carolinas for almost a year after defendant was out of the conspiracy. The 4th Circuit affirmed, although it noted that the facts presented the outer limits of what could be “reasonably foreseeable.” It would be “both unreasonable and unfair to hold [defendant] accountable for all sales by [the partner] to these contacts for an indefinite period of time.” U.S. v. Richardson, 939 F.2d 135 (4th Cir. 1991).
4th Circuit affirms sentence based on total amount of drugs involved in conspiracy. (275) The 4th Circuit rejected defendant’s argument that the district court should have attributed to him only the crack that he personally distributed, rather than the total amount which flowed through the conspiracy and of which he was reasonably aware. Application note 1 of guideline § 2D1.4 indicates that drug conspirators should be punished in a manner commensurate with the scale of the conspiracy, rather than their personal participation in the conspiracy. U.S. v. Campbell, 935 F.2d 39 (4th Cir. 1991).
4th Circuit affirms holding defendant responsible for all drugs involved in conspiracy. (275) Defendant contended it was improper to sentence him for drugs possessed or distributed by his brother because there was no evidence to show that the distribution of all the drugs was within the scope of their agreement. The 4th Circuit upheld the calculation, since defendant did not offer any evidence to suggest that the district court’s findings were clearly erroneous. The evidence showed that defendant made trips to New York to pay for drugs previously acquired by his brother and to purchase and transport drugs for the brother. It also showed that the brothers worked together in the same business location and that when another co-conspirator delivered money or drugs to that location he would leave the packages with defendant when the brother was absent. The district court found that it was reasonably foreseeable by defendant that his brother would be dealing in the amount of drugs established here. U.S. v. Clark, 928 F.2d 639 (4th Cir. 1991).
4th Circuit finds drug conspiracy offense level is calculated on basis of known or reasonably foreseeable conduct. (275) Defendant argued that the sentencing court erroneously calculated his offense level for a drug conspiracy by considering quantities of cocaine with which he was not personally involved. However, the 4th Circuit affirmed the calculation of the offense level, holding that the conduct relied upon by the sentencing court was “reasonably foreseeable” to the defendant, as required by § 2D1.4. The court labeled the determination of the foreseeability of the extent of the overall conspiracy to be “critical,” especially in drug offense cases, wherein the offense level is set according to types and aggregate quantities of drugs. U.S. v. Vinson, 886 F.2d 740 (4th Cir. 1989).
4th Circuit holds base offense level was improper as to amount of marijuana possessed but was proper under object of conspiracy provisions. (275) A drug conspirator’s base offense level was set at 28 after the District Court found he had constructively possessed greater than 400 kilograms of marijuana. However, he had actually possessed between 100 and 400 kilograms. The difference in the base offense level between the two amounts was two points under the drug quantity tables of guideline § 2D1.1(3). The 4th Circuit stated that the base offense level of 28 was nevertheless proper under Application Note 1 to guideline § 2D1.4, because the defendants contemplated that an amount over 400 kilograms was to be distributed. U.S. v. Roberts, 881 F.2d 95 (4th Cir. 1989).
5th Circuit includes personal use drugs in offense level of drug conspirator. (275) Defendant pled guilty to one count of conspiracy to distribute a controlled substance. He argued that the district court erred by using drugs that were for his personal consumption to calculate his offense level. The Fifth Circuit noted that every other circuit that has considered this issue has held that a court properly considers the amount of drugs intended for a defendant’s personal consumption when calculating the sentence for a conviction involving a drug conspiracy. See, e.g. U.S. v. Page, 232 F.3d 536 (6th Cir. 2000); U.S. v. Asch, 207 F.3d 1238 (10th Cir. 2000); U.S. v. Stone, 139 F.3d 822 (11th Cir. 1998). The panel found the logic of these decisions sound, and held that a district court may properly consider drug amounts intended for the defendant’s personal use when calculating the base offense level for a defendant convicted of participating in a drug conspiracy. U.S. v. Clark, 389 F.3d 141 (5th Cir. 2004).
5th Circuit says defendant could foresee that cocaine would be converted to crack. (275) Catlin testified that, on two occasions, he bought about 1.5 ounces of powder cocaine from defendant. At sentencing, the district court converted the powder cocaine to crack before determining the marijuana equivalency. Defendant objected to the initial conversion of the 1.5 ounces of powder cocaine into crack because there was no direct evidence that the powder was ever converted to crack. However, Catlin had known defendant for six years, and defendant knew Catlin was a crack dealer. When defendant had offered Catlin marijuana, he informed defendant that he was only interested in purchasing cocaine. The Fifth Circuit held that the district court did not err in concluding that the powder cocaine would be converted to crack. A conspirator is responsible for all reasonably foreseeable acts or omission of other conspirators in furtherance of the jointly undertaken criminal activity. Based on the evidence, defendant could easily foresee that the conspiracy involved at least 18.98 grams of crack. U.S. v. Booker, 334 F.3d 406 (5th Cir. 2003).
5th Circuit holds that error in drug quantity attribution was harmless where it did not affect offense level. (275) Defendant was convicted of participating in a drug and marijuana conspiracy. He argued the distribution of five kilograms of cocaine, which the PSR counted as 1000 kilograms of marijuana, was outside the scope of relevant conduct attributable to him. Defendant did not argue, however, that the court erred in attributing 1600 kilograms of marijuana to him. The government conceded that it was error to hold defendant responsible for the five kilograms of cocaine, but contended that the error had no effect on his base offense level, and therefore was harmless. The Fifth Circuit agreed that the error was harmless. The court’s finding that 1600 kilograms of marijuana could be directly attributed to defendant was not clearly erroneous. Even if the five kilograms of cocaine (equivalent to 1000 kilograms of marijuana) were subtracted from the overall drug amount, a base offense level of 32, which covers a range from 1000 to 3000 kilograms of marijuana, would still apply. U.S. v. Turner, 319 F.3d 716 (5th Cir. 2003).
5th Circuit says defendant not responsible for heroin sold after she left conspiracy. (275) Defendant and her husband sold heroin for Enriquez at his auto shop in return for their housing and daily fixes of heroin. After defendant became very ill, she decided she needed to “get away.” Enriquez’s wife, Lujan, told defendant and her husband that if they left they could not return. Defendant and Lujan had a heated verbal exchange during which defendant told Lujan that she was leaving and did not want anything else to do with them. From the time she left the shop until her arrest nine months later, defendant had no contact whatsoever with the conspirators, nor did she use heroin. The Fifth Circuit held that the district court clearly erred in holding defendant accountable for 200 plus grams of heroin distributed by the conspiracy after defendant left it. The conduct of conspirators after a defendant withdraws from the conspiracy is excluded from the defendant’s relevant conduct. The district court clearly erred in ruling that defendant did not effectively withdraw from the conspiracy. Defendant told Lujan that she wished to cease involvement with the conspiracy when she left the repair shop. She made no attempt whatsoever to rejoin the conspiracy or communicate with its members after her departure. She also entered drug rehabilitation shortly after leaving the repair shop and stopped using heroin. U.S. v. Schorovsky, 202 F.3d 727 (5th Cir. 2000).
5th Circuit finds 50 kilograms foreseeable to defendant aware that a “significant amount” of drugs involved. (275) Defendant and several other police officers protected supposed drug couriers while they loaded and transported in each of two vehicles what was purported to be 25 kilograms of cocaine. The PSR attributed to defendant 50 kilograms of cocaine, noting that although defendant was unaware of the exact quantity of drugs, he was aware that a “significant amount” was involved. The Fifth Circuit found that 50 kilograms were reasonably foreseeable to defendant, even if he was unaware of the exact quantity involved. Defendant fully grasped that a significant quantity of drugs was involved. He believed that: his co-conspirators had been guarding a warehouse filled with cocaine; more than a half dozen policemen would be guarding the shipment in question; the cocaine would be off-loaded from a tractor trailer and loaded into two vehicles; the drug trafficker was a major player; and federal agents could be monitoring the protection racket. Defendants cannot avoid punishment for actual drug quantities through studied ignorance, notwithstanding their obvious understanding as to the general breadth of the drug enterprise. U.S. v. Duncan, 191 F.3d 569 (5th Cir. 1999).
5th Circuit says defendant could foresee drugs involved in smuggling incident. (275) Defendant and others smuggled cocaine and marijuana into the U.S. from Mexico. The PSR reported that defendant helped a co-conspirator in one smuggling episode in which 370.14 kilograms of cocaine were found in a car hours after the incident. The Fifth Circuit agreed that these facts supported an inference that defendant reasonably foresaw the smuggling operation involved 370.14 kilograms of cocaine. U.S. v. Medina, 161 F.3d 867 (5th Cir. 1998).
5th Circuit finds defendant failed to show he was not in drug conspiracy from 1991-1994. (275) Defendant argued that the 9028 kilograms of marijuana attributed to him were not reasonably foreseeable. He claimed there was no evidence that he was involved in the conspiracy from 1991 to 1994, and that his involvement began in September 1995. Thus, he was only responsible for the 400 pounds delivered between September and November of 1995. The Fifth Circuit disagreed, because defendant failed to present any evidence to support his argument that he was not involved from 1991-1994. However, there was evidence that while defendant was foreman of the ranch used to smuggle marijuana from Mexico to Texas, the ranch was severely neglected. In October 1994, a potential buyer, who had contracted to purchase the ranch, made an unexpected visit. The visit made him suspicious that illegal drug activity was occurring at the ranch. When he reported these suspicions, defendant replied that he “would see about it.” Defendant then sued to void the sale contract and to bar the buyer from the ranch. U.S. v. Narviz-Guerra, 148 F.3d 530 (5th Cir. 1998).
5th Circuit holds defendants accountable for reasonably foreseeable drugs. (275) Defendants were convicted of a cocaine and marijuana conspiracy. They challenged the district court’s finding of the amount of drugs attributable to them for sentencing purposes. The Fifth Circuit found no error since defendants were liable for the amount of drugs reasonably foreseeable to them during the life of the conspiracy. A special agent established the relevant amounts of marijuana and cocaine attributable to each defendant. This testimony was supported by evidence admitted at trial. U.S. v. Ramirez, 145 F.3d 345 (5th Cir. 1998).
5th Circuit holds defendant responsible for all drugs despite “rift” with supplier. (275) Defendant pled guilty to a marijuana conspiracy. He challenged the court’s finding that he was responsible for 8000 pounds of marijuana. He admitted that he received 1000-3000 kilograms of marijuana in Kansas City between 1992 and 1994 from his source. However, he contended that in March 1994 a “rift” developed between him and the source, after which the source no longer dealt with defendant and instead delivered marijuana to another dealer. The Fifth Circuit held that defendant was properly held accountable for the full 8000 kilograms. An IRS agent who debriefed the major participants in the drug conspiracy confirmed that from August 1992 to March 1994, defendant received about 4100 pounds from his supplier. Another dealer generally took the deliveries for defendant. After the rift in March 1994, the supplier sent another 3900 pounds to Kansas City. The same dealer received these shipments. The dealer told the IRS agent that he received all 8000 pounds on behalf of defendant. The court chose to credit this testimony. Moreover, the dealer was only a “small-time dealer,” who would perhaps take only five pounds of marijuana per shipment. It was unlikely that this dealer could absorb 3900 pounds of marijuana sent to Kansas City after March 1994. U.S. v. Huskey, 137 F.3d 283 (5th Cir. 1998).
5th Circuit holds conspirator accountable for foreseeable loads of marijuana. (275) Defendant was convicted of conspiracy and various substantive offenses arising out of a marijuana importation and distribution enterprise. He argued that he should not have been held accountable for all drugs in the conspiracy from June through November. The Fifth Circuit found no error. Defendant was clearly accountable for the 120-pound load that was seized in November. Moreover, as a coconspirator, he could be also be held accountable for the other loads even though he did not actively participate in their transportation. Given his level of involvement in the conspiracy, these loads were foreseeable to him, and thus the quantity was properly calculated by the court. U.S. v. Brito, 136 F.3d 397 (5th Cir. 1998).
5th Circuit holds that court made sufficient drug quantity findings for conspirators. (275) The Fifth Circuit held that the district court made sufficient findings to support the drug quantity attributed to each defendant. The court determined the dates of membership in the conspiracy for each defendant and adjusted the quantities attributable to him accordingly. The court did not accept speculative testimony or extrapolate to compute the quantity of drugs sold. It used only two sources to calculate a minimum drug quantity for relevant conduct purposes: documented evidence of actual drug transactions totaling 25.45 grams of crack cocaine and .78 grams of powder cocaine, and sales admitted by a co-conspirator totaling 266 grams of crack cocaine and 112 grams of powder cocaine. In making its reasonable foreseeability determination, the court specifically found that each defendant was aware of the acts of all. U.S. v. Wilson, 116 F.3d 1066 (5th Cir. 1997), vacated in part on other grounds sub nom. U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc).
5th Circuit holds conspirators accountable for 4000 pounds of marijuana they agreed to transport. (275) Defendant participated in a drug trafficking conspiracy that transported marijuana through Texas. The conspirators were arrested after agreeing to transport 4000 pounds for an undercover officer posing as a Mexican drug trafficker. Defendant argued that he should not be held responsible for 4000 pounds because he was merely “puffing.” The Fifth Circuit found no error. Although no marijuana was delivered, the conspirators conspired to transport a total of 4000 pounds of marijuana, and defendant was a member of the conspiracy. The court expressed concern, however, that an undercover government agent would appear to have unlimited reign to propose any amount of drugs that would then become the subject of the conspiracy. In such instances, the district court should inquire whether the suggested amount is realistic and doable. District courts can and will sort out the real from the imagined and will not be misled by totally fictitious amounts proposed by unduly exuberant undercover officers. U.S. v. Torres, 114 F.3d 520 (5th Cir. 1997).
5th Circuit attributes additional drugs based on relationship with leader of conspiracy. (275) Defendant was involved in a large marijuana and cocaine distribution conspiracy. At sentencing, he agreed that he had distributed 130‑140 kilograms of cocaine. The Fifth Circuit approved the attribution of another 46‑56 kilograms to defendant based on defendant’s “lengthy and close drug-related relationship” with the leader of the conspiracy. U.S. v. Sotelo, 97 F.3d 782 (5th Cir. 1996).
5th Circuit holds defendant accountable for additional drugs and rejects role reduction. (275) Defendant was involved in a large marijuana and cocaine distribution conspiracy. The district court found defendant accountable for 9,638 kilograms of marijuana equivalency, while defendant argued that the only drug quantities foreseeable to him were one kilogram of cocaine and ten pounds of marijuana involved in a failed undercover buy. The Fifth Circuit held that the disputed quantities sold to witnesses by the leader of the conspiracy were reasonably foreseeable to defendant. The witnesses testified that defendant accompanied the leader to the purchases, sometimes made drug deliveries by himself and saw drug payments being made. The court also properly denied defendant a minimal role reduction based on defendant’s long‑term involvement and participation in more than 20 deliveries. U.S. v. Sotelo, 97 F.3d 782 (5th Cir. 1996).
5th Circuit agrees that crack cocaine was foreseeable to defendant. (275) Defendant challenged the court’s finding that 4.68 kilograms of crack cocaine were attributable to him for sentencing purposes. The Fifth Circuit affirmed. Defendant regularly delivered powder cocaine to the leader’s purchasers. On one occasion, one kilogram of cocaine was observed in defendant’s house. Defendant knew, through conversations with at least one of the regular purchasers, that the cocaine sold by the leader was routinely converted into crack cocaine. U.S. v. Alix, 86 F.3d 429 (5th Cir. 1996).
5th Circuit says court made proper findings by adopting presentence report. (275) Defendant challenged the court’s finding that he was responsible for the total amount of cocaine seized from his conspirators. The Fifth Circuit held that the district court made the necessary findings by adopting the presentence report. The PSR indicted that the entire 166.9 kilograms of cocaine was reasonably foreseeable to defendant, and that the conspirators aided one another in housing and transporting the 166.9 kilograms confiscated from a residence and a vehicle. The district court implicitly made the findings necessary to base defendant’s offense level on the entire 166.9 kilograms when it adopted the PSR. U.S. v. Garcia, 86 F.3d 394 (5th Cir. 1996).
5th Circuit rules defendant could not have foreseen sale would involve crack rather than powder cocaine. (275) A government informant approached defendant about selling him some auto rims. Later, the informant met with a co‑conspirator without defendant and discussed buying some cocaine from a co‑conspirator and throwing in the tire rims defendant wanted. The informant eventually purchased a bag of drugs from the co‑conspirator that he later discovered contained crack cocaine instead of powder. Both the informant and an FBI agent testified that up until the actual purchase everyone thought the deal was for the sale of powder cocaine. The district court refused to hold defendant responsible for the more than 15 kilograms of cocaine base involved in the conspiracy, but did hold him responsible for the single crack cocaine transaction in which he personally participated. The Fifth Circuit held that the court should have sentenced him for powder cocaine rather than crack cocaine. There was no evidence in the record to support the court’s finding that defendant agreed, participated in, or could have reasonably foreseen that the transaction would involve crack instead of powder. U.S. v. Fike, 82 F.3d 1315 (5th Cir. 1996), overruled on other grounds by U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998).
5th Circuit says amount defendant personally handled was within scope of his conspiratorial agreement. (275) Defendant claimed that the district court did not determine the drug quantity that was within the scope of his conspiratorial agreement or what part of that quantity was reasonably foreseeable. The Fifth Circuit held that the findings could be found in the presentence report adopted by the court. The report stated that defendant was personally involved in redistributing about 120 kilograms of crack cocaine. If defendant was personally involved with 120 kilograms, then that amount was clearly within the scope of the conspiracy into which he entered, and was clearly foreseeable to him. U.S. v. Fields, 72 F.3d 1200 (5th Cir. 1996).
5th Circuit attributes drugs seized from leader’s house to bodyguard and “right hand man.” (275) Defendant served as bodyguard and “right hand man” to the leader of a drug conspiracy. The Fifth Circuit held defendant accountable for 200 grams of crack and powder cocaine seized from the leader’s residence. Defendant’s involvement in the conspiracy seemed to have been co-extensive with the leader’s involvement. Defendant often transported drugs from the residence to Austin. Therefore, it was foreseeable to defendant that the leader would have a significant amount of drugs in his home. U.S. v. Buchanan, 70 F.3d 818 (5th Cir. 1995).
5th Circuit remands because court did not make findings about scope of conspiratorial agreement. (275) Defendants were part of drug conspiracy that agreed to sell five ounces of crack cocaine. Police arrested the conspirators during the transaction, and found that some of the conspirators possessed additional crack hidden in their pants and underwear. The district court held defendants accountable for the total amount of cocaine present during the transaction, finding its presence to be reasonably foreseeable to them. The Fifth Circuit remanded for specific findings as to whether any of the conspirators’ agreements involved more than five ounces of crack cocaine, and whether the conspirators were carrying additional amounts in further of the conspiracy. Absent a finding that a defendant agreed to a jointly undertaken criminal activity with his co-conspirators that involved a greater amount of crack, it was irrelevant whether the defendant knew or foresaw that a greater amount of crack would be present during the transaction. U.S. v. Dean, 59 F.3d 1479 (5th Cir. 1995).
5th Circuit upholds drug quantity attribution since defendant handled that quantity personally. (275) The district court found that defendant knew or should have foreseen that the conspiracy in which he was involved distributed more than five kilograms of crack cocaine. The Fifth Circuit affirmed, since the PSR and trial testimony showed that defendant personally distributed well over five kilograms of crack. U.S. v. McKinney, 53 F.3d 664 (5th Cir. 1995).
5th Circuit rejects need for foreseeability finding where sentence is based on personal involvement. (275) Defendant challenged the district court’s finding that she was accountable for more than five kilograms of cocaine base. The Fifth Circuit affirmed based on the combined testimony of several witnesses who testified about various drug transactions with defendant. Because defendant was sentenced based on personal involvement only, there was no need for the district court to make a foreseeability finding. U.S. v. McKinney, 53 F.3d 664 (5th Cir. 1995).
5th Circuit holds defendant accountable for drugs seized after his arrest. (275) Police seized a total of 965 kilograms of cocaine from a drug conspiracy. Defendant argued that he should not be held accountable for that part of the cocaine seized after his arrest. The Fifth Circuit held that defendant was responsible for all 965 kilograms, since the goal of the conspiracy at the time of defendant’s arrest was to transport about 962 kilograms of cocaine. A notecard police recovered noted “47 x 20k = 940k.” Below the “940k” was written “22k” for a total “962k.” Another notecard had “47 bultos” written on it. Not coincidentally, 47 bundles of identically wrapped cocaine were seized. U.S. v. Quiroz-Hernandez, 48 F.3d 858 (5th Cir. 1995).
5th Circuit finds defendant’s role as “banker” allowed him to foresee scope of brother’s drug organization. (275) Defendant served as the “banker” for his brother’s drug organization. He handled the monetary exchanges for the organization, storing cash for his brother at his residence, and delivering it to sellers. The Fifth Circuit held that defendant’s relationship as the banker or the money keeper for his brother, the leader of the drug ring, allowed him to foresee the scope of the organization’s drug dealing. Thus, defendant could foresee that the organization received 285 kilograms of cocaine during the conspiracy. U.S. v. Morris, 46 F.3d 410 (5th Cir. 1995).
5th Circuit says foreseeability finding did not conflict with rejection of defendant’s managerial role. (275) The district court found that defendant’s position as the “right hand man” of the leader of a drug conspiracy put him in a position to foresee that the conspiracy would involve 285 kilograms of cocaine. Relying on U.S. v. Carreon, 11 F.3d 1225 (5th Cir. 1994), defendant argued that this conflicted with the court’s finding that defendant did not have a managerial or supervisory role in the conspiracy. The Fifth Circuit held that the two findings did not conflict. In Carreon, there were no independent, additional findings to support the foreseeability finding other than defendant’s role as a key man. Here, the district court found that defendant transported cocaine, picked up money, and counted money for the drug organization. In addition, he capped cocaine and returned phone calls for the conspiracy’s leader. Thus, even if he was not the conspiracy’s manager or supervisor, he was nonetheless in a position as the leader’s right hand man to be aware of the scope of the conspiracy. U.S. v. Morris, 46 F.3d 410 (5th Cir. 1995).
5th Circuit says failure to make foreseeability finding was not plain error. (275) The PSR concluded that a 10-year mandatory minimum for offenses involving more than 100 grams of heroin applied to defendant, and she did not object. Without making findings regarding either the amount of heroin involved in the conspiracy or the amount attributable to defendant, the district court adopted the PSR and sentenced her to 10 years. The Fifth Circuit held that the court’s failure to make such findings was not plain error. Rule 32(c)(3)(D) only requires findings as to controverted matters, and defendant waived her rights. The appellate court agreed that guideline standards for determining the quantity of drugs in a conspiracy apply when deciding whether to impose a statutory minimum required by § 841(b). But the district court’s failure to anticipate this holding was not plain error. U.S. v. Ruiz, 43 F.3d 985 (5th Cir. 1995), overruled on other grounds by U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000).
5th Circuit finds marijuana carried by other couriers was within scope of defendant’s agreement. (275) Defendant agreed to carry a package of marijuana from Mexico into the United States. He was sent to a place where he met 11 other individuals. Each person carried a bag containing about 30 pounds of marijuana. The district court held defendant accountable for all 315 pounds of marijuana seized from the group. The 5th Circuit agreed that the full 315 pounds of marijuana was foreseeable to defendant and within the scope of his conspiratorial agreement. Although defendant originally intended to carry only his bundle, he joined a group of other individuals, and accepted his role within the larger unit. He relied on the other criminal actors for support and assistance, and they relied on him, as demonstrated by defendant’s advice to travel at night to avoid detection. Defendant’s circumstances were factually identical to example (8) in note (2)(c) to § 1B1.3. U.S. v. Hernandez-Coronado, 39 F.3d 573 (5th Cir. 1994).
5th Circuit says defendants could foresee they were not exclusive customers of their suppliers. (275) Defendants were drug dealers who received their cocaine from common suppliers. They challenged the district court’s finding that they could foresee that the conspiracy involved between five and 15 kilograms of cocaine. The 5th Circuit affirmed. A preponderance of the evidence showed that defendants actively participated in the conspiracy, none of them were late joiners, and they could reasonably foresee that they were not the exclusive customers of their suppliers. U.S. v. Mitchell, 31 F.3d 271 (5th Cir. 1994).
5th Circuit relies on co-conspirator’s out-of-court statement to calculate drug quantity. (275) Defendants were involved in a marijuana distribution conspiracy. The 5th Circuit upheld the district court’s determination that defendants were responsible for 5496 pounds of marijuana. Defendants did not explain why the information relied on by the probation officer and the district court was unreliable. Police seized 2400 pounds of marijuana from trucks. The remaining 3000 pounds was based on an interview conducted with one of the drivers after his arrest. The driver told a DEA agent that he had made three successful shipments of over 1000 pounds of marijuana each, before he was arrested during the fourth shipment. U.S. v. Bermea, 30 F.3d 1539 (5th Cir. 1994).
5th Circuit holds defendants accountable for earlier shipments of marijuana. (275) Defendants were involved in transporting and unloading a truck containing 1800 pounds of marijuana. The 5th Circuit agreed that defendants were responsible for 3800 pounds of marijuana. A confidential informant testified that the conspiracy had previously transported two or three other marijuana loads. Each load involved about 1000 pounds of marijuana. There was sufficient evidence to connect defendants to these loads. The informant testified that a ranch was used as a loading site 10 or 12 times, and that the first defendant was present on several of those occasions. The informant also testified that this defendant was the leader’s “next in command.” The evidence connecting the second defendant was more tenuous but still sufficient. This defendant told the informant that he was the owner of the truck used to transport marijuana. The truck was actually registered in the defendant’s wife’s name. Defendant also told the informant he was paid $25 per pound of marijuana to arrange for storage. U.S. v. Bermea, 30 F.3d 1539 (5th Cir. 1994).
5th Circuit upholds adoption of PSR’s drug quantity findings. (275) Defendant claimed that the district court made an indefinite finding of the quantity of drugs he could reasonably foresee that his co-conspirators were distributing. The 5th Circuit affirmed. The district court complied with Rule 32(c)(3)(D) by adopting the factual statements in the PSR and rejecting defendant’s objections. The PSR stated that defendant aided and abetted the transportation of more than 340 kilograms of cocaine. Although defendant denied knowledge of certain shipments, his co-conspirators contradicted his testimony. U.S. v. Brown, 29 F.3d 953 (5th Cir. 1994).
5th Circuit says adoption of PSR not sufficient because it did not make foreseeability finding. (275) Defendant argued that the district court erred by failing to make express findings regarding the quantity of crack attributable to him for sentencing purposes. The government claimed that the district court’s findings were adequate because the court implicitly adopted the findings of the PSR. The 5th Circuit found that even if the court did adopt the PSR’s findings on the drug quantity involved in the conspiracy, this was insufficient because the PSR did not address reasonable foreseeability. U.S. v. Foy, 28 F.3d 464 (5th Cir. 1994).
5th Circuit holds defendant accountable for all drugs marketed by conspiracy. (275) The 5th Circuit upheld the trial court’s decision to hold defendant accountable for all the drugs marketed by the conspiracy in which he was involved. Defendant was more than a retail distributor accountable for only the drugs that he personally distributed. He was a part of the “hub.” He had an ongoing relationship with the leader of the conspiracy, operated out of the headquarters, and performed a variety of tasks for the organization. Defendant could reasonably foresee the full scope of the conspiracy. U.S. v. Williams, 22 F.3d 580 (5th Cir. 1994).
5th Circuit adopts PSR’s conclusion that defendant could foresee all marijuana in conspiracy. (275) The district court adopted the PSR’s conclusion that defendant was responsible for 4,046 kilograms of marijuana, the total quantity distributed by the conspiracy in which she was involved. The 5th Circuit affirmed. The PSR expressly found that defendant could reasonably foresee the entire amount of drugs trafficked by the conspiracy, and the district court underscored this finding, stating that all five of the defendants could have foreseen the actions of the other conspirators. This conclusion was reasonable, given that the conspiracy was a family organization, run by defendant and her sisters, each of whom had an intimate understanding of the operation. U.S. v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).
5th Circuit says defendant cannot be held responsible for marijuana distributed before he joined conspiracy. (275) The district court held defendant accountable for all 4,086 kilograms of marijuana distributed by the conspiracy. However, when the conspiracy began in December, 1987, defendant was incarcerated. After his release in October 1988, he became an integral part of the conspiracy. His direct involvement in the conspiracy continued until June 15, 1990, when he was arrested. The 5th Circuit remanded, holding that any amount of marijuana trafficked before October 1988 could not be attributed to defendant because relevant conduct is prospective only, and does not include conduct occurring before a defendant joins a conspiracy. Although the district court found that a “majority” of the marijuana was distributed in 1988 through 1990, this may only have meant that the quantity of marijuana foreseeable to defendant was a number greater than 2000 kilograms. In addition, although defendant failed to show that he withdrew from the conspiracy upon his incarceration in June 1990, his incarceration may still have had some effect on the foreseeability of the acts of his co-conspirators after that date. U.S. v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).
5th Circuit finds court properly resolved defendant’s objection to foreseeability determination. (275) Defendant objected to the PSR’s conclusion that he was responsible for all the marijuana distributed by the conspiracy. The district court held an evidentiary hearing and credited the testimony of a police officer in rejecting defendant’s objection. Defendant argued that Fed. R. Crim. P. 32(c)(3)(D) required the district court specifically to find that the amount of marijuana in his PSR was reasonably foreseeable. The 5th Circuit affirmed, ruling that by specifically crediting the police officer’s testimony, the district court adopted the officer’s conclusion regarding defendant’s ability to foresee the transportation, storage and sale of marijuana of the entire conspiracy. This specific rejection of defendant’s objection to the amount of marijuana charged in the PSR satisfied Rule 32. U.S. v. Golden, 17 F.3d 735 (5th Cir. 1994).
5th Circuit refuses to consider meritorious argument raised for first time on appeal from denial of § 2255 motion. (275) In the appeal of the district court’s denial of her motion to vacate her sentence under 28 U.S.C. § 2255, defendant argued that she was improperly held accountable for drugs distributed by a conspiracy prior to her entry into the conspiracy. The 5th Circuit found that this issue, if raised in a proper setting, would have “substantial persuasive force.” Recent caselaw has held that the reasonable foreseeability requirement of section 1B1.3 is prospective only for purposes of determining relevant conduct in conspiracy cases. However, defendant’s argument was not raised until the denial of her § 2255 motion. Therefore, the appellate court could not consider it. U.S. v. Madkins, 14 F.3d 277 (5th Cir. 1994).
5th Circuit remands where no findings that additional cocaine was part of jointly undertaken activity. (275) Defendant approached undercover agents and took them to a nearby house to purchase rocks of crack cocaine. The agents bought the crack from a woman, although two other men also had crack for sale. A search of the house uncovered an additional 3.9 grams of crack cocaine, which belonged to one of the other drug sellers. The district court held defendant accountable for these additional 3.9 grams. On appeal, however, the 5th Circuit remanded for specific findings on whether defendant agreed to jointly undertake criminal activity with the other sellers, and whether he could reasonably have foreseen that 3.9 grams would be involved. Although defendant was convicted of conspiring with the female drug seller, and she was held accountable for the additional drug quantity, this did not mean defendant was also accountable for the same drug quantity. U.S. v. Smith, 13 F.3d 860 (5th Cir. 1994).
5th Circuit finds crack sold by others from same house was part of jointly undertaken activity. (275) The undercover agents bought the crack from defendant, although two other men standing on the porch of the house also had crack for sale. Defendant argued that she should not be held accountable for 3.9 grams of crack found inside the house, because it belonged to one of the other drug sellers. She claimed that she was not in a joint enterprise with them, but was in competition. The 5th Circuit held that she was accountable as a joint participant in the drug sales occurring at the house. One seller told defendant where to obtain crack by introducing her to his source. The sellers all were using the house as a common location for drug use and sales. In essence, the house had become a rudimentary shopping center for crack, with one conspirator acting as its “barker,” and friendly competitors who created a marketing site greater than the sum of its parts. Judge DeMoss dissented. U.S. v. Smith, 13 F.3d 860 (5th Cir. 1994).
5th Circuit agrees that conspiracy leader could foresee selling 150 kilograms of cocaine. (275) The 5th Circuit upheld a finding that the leader of a drug conspiracy could reasonably foresee that the conspiracy he founded would distribute over 150 kilograms of cocaine or its equivalent. Drug ledgers seized from defendant’s residence showed that over an 18-month period that constituted about one-third of the conspiracy’s life, the conspiracy distributed about 56 kilograms. Defendant organized and retained control over every aspect of the conspiracy. He knew or should have reasonably foreseen the amount of narcotics distributed by the conspiracy. U.S. v. Thomas, 12 F.3d 1350 (5th Cir. 1994).
5th Circuit finds defendant who dealt “massive” quantities of drugs could foresee 150 kilograms. (275) The 5th Circuit upheld the determination that defendant was responsible for distributing 150 kilograms of cocaine. There was evidence that he delivered multiple kilograms of cocaine to one conspirator. Another conspirator testified that defendant transported 21 kilograms of cocaine from Florida to Texas. Furthermore, the PSR indicated that defendant was involved in transporting “massive” quantities of cocaine for two conspirators. An individual dealing in a sizable amount of controlled substances ordinarily will be presumed to recognize that the drug organization with which he deals extends beyond his universe of involvement. U.S. v. Thomas, 12 F.3d 1350 (5th Cir. 1994).
5th Circuit holds defendants are not accountable for conduct before they join conspiracy. (275) The 5th Circuit held that relevant conduct under § 1B1.3(a)(1)(B) is prospective only, so it cannot include conduct that occurs before a defendant joins a conspiracy. This ruling is in accord with the 1st and 9th Circuits, but disagrees with the 2nd and 7th Circuits. The court found this approach comports with the plain meaning of the term “foreseeable.” It also furthers the goals of individualized sentencing, and ensures proportionality. Finally, this approach is consistent with Circuit caselaw and 1992 amendments stating that the “scope of the agreement” and “reasonable foreseeability” are independent and necessary elements of relevant conduct under § 1B1.3(a)(1)(B). The offense level cannot be based on mere knowledge of historical facts, but the foreseeable object to which the defendant agreed. Of course, the past performance of the conspiracy may be relevant in determining his understanding of future drug quantities. U.S. v. Carreon, 11 F.3d 1225 (5th Cir. 1994).
5th Circuit holds that earlier transactions involving different drugs may be relevant conduct. (275) The 5th Circuit held that drug transactions occurring before the conspiracy for which a defendant is convicted may be considered for sentencing purposes if those transactions otherwise constitute relevant conduct. In addition, it is permissible for a sentencing court to consider a defendant’s transactions in one type of drug even if his conviction involved a different type of drug. Here, defendant failed to object to the district court’s consideration of transactions before the charged conspiracy involving a different drug than the conspiracy. Therefore, the district court’s ruling that the prior transactions were relevant conduct would be reviewed only for plain error, and there was none. Questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error. U.S. v. McCaskey, 9 F.3d 368 (5th Cir. 1993).
5th Circuit holds that section 1B1.3 applies to drug conspiracy defendant. (275) Defendant was convicted of conspiracy to distribute cocaine. He argued that section 2D1.4 alone should have been applied to determine his base offense level, and that section 1B1.3, the relevant conduct guideline, was inapplicable. The 5th Circuit found this argument was “clearly wrong.” The offense level derives from section 2D1.1(a)(3), which references section 2D1.1(c), the Drug Quantity Table. The Drug Quantity Table provides for a wide range of base offense levels depending on the quantity of drugs attributable to the offender. Thus, the guidelines specify more than one base offense level for conspiracy to distribute cocaine, and the conduct relevant to determining the offense level is governed by section 1B1.3(a). The court also rejected defendant’s claim that section 2D1.4 and its application notes only permit a court to consider relevant conduct if such conduct qualifies as a “conspiracy transaction” under section 2D1.4. U.S. v. McCaskey, 9 F.3d 368 (5th Cir. 1993).
5th Circuit holds that drugs were foreseeable even if firearm was not. (275) The district court held defendant accountable for 36.30 grams of cocaine seized from his co-conspirators, but not for the revolver they were carrying. The 5th Circuit affirmed, holding that the cocaine transported by his co-conspirators was reasonably foreseeable to defendant. The jointly-undertaken activity to which defendant agreed was the transportation of crack cocaine, often in amounts well over 36.30 grams, from Houston to Port Arthur for distribution outside a diner. On more than one occasion, defendant accompanied the co-conspirators on this trip. The district court’s refusal to hold defendant accountable for the revolver was not inconsistent with and did not affect the court’s decision with respect to the amount of cocaine for which defendant could be held accountable. U.S. v. Gadison, 8 F.3d 186 (5th Cir. 1993).
5th Circuit says failure to make reasonable foreseeability finding would have been harmless. (275) Defendant argued that he should not be sentenced on the basis of the full 57.98 grams of cocaine base distributed by his co-conspirators because the district court failed to specifically find that he could have reasonably foreseen the distribution of this quantity. The 5th Circuit found this argument to be without merit, and held alternatively, that the district court’s failure to make a specific finding as to the quantity of drugs reasonably foreseeable to defendant was harmless error. The record reflected that defendant was an early member of the conspiracy, sold drugs to an undercover agent, and arranged for the sale of a substantial quantity of drugs to the agent. Because the record reflected substantial evidence indicating that defendant knew or should have reasonably foreseen the amount of drugs distributed by the conspiracy, to vacate and remand would be a waste of judicial resources. U.S. v. Sparks, 2 F.3d 574 (5th Cir. 1993).
5th Circuit holds that reasonable foreseeability determination cannot be plain error. (275) Defendant argued for the first time on appeal that the district court improperly held him accountable for excessive drug quantities. Because defendant failed to raise this objection below, he could not raise it on appeal absent plain error. There was no plain error. Because the quantity of drugs reasonably foreseeable to defendant was a question of fact that the district court resolved at sentencing without objection, the 5th Circuit refused to reach the merits of the claim. U.S. v. Sparks, 2 F.3d 574 (5th Cir. 1993).
5th Circuit remands to reconsider conspirator’s drug quantities in light of amendments to §1B1.3. (275) Defendants challenged the propriety of holding them accountable for more drugs than those involved in the specific incidents in which they were personally involved. The 5th Circuit remanded for reconsideration in light of recent clarifications to guideline section 1B1.3’s commentary. Application note 2 makes clear that criminal liability and relevant conduct are two different concepts, regardless of whether the indictment includes a conspiracy allegation. A defendant is accountable for the conduct of others that was (1) in furtherance of jointly undertaken criminal activity, and (2) reasonably foreseeable. The illustrations indicate that it was not necessarily the intent of the Sentencing Commission to hold persons who buy or sell drugs for a major distributor responsible for all the drugs bought or sold by that distributor. Those defendants who may have been involved in less than the entire conspiracy. U.S. v. Maseratti, 1 F.3d 330 (5th Cir. 1993).
5th Circuit relies on managerial role to find that drug quantity was foreseeable to defendant. (275) The 5th Circuit relied on defendant’s managerial role in a cocaine smuggling operation headed by his father to affirm that 227 kilograms of cocaine were reasonably foreseeable to him. U.S. v. Palomo, 998 F.2d 253 (5th Cir. 1993).
5th Circuit holds failure to object to foreseeability of scope of drug conspiracy precludes relief. (275) Defendant argued that she should not be held accountable for the entire quantity of drugs involved in a conspiracy because the amounts were not reasonably foreseeable to her. The 5th Circuit held that defendant’s failure to object to the drug quantity calculation at sentencing permitted reversal only in the case of “plain error” and that this claim could not constitute plain error, for it involved a “[q]uestion of fact capable of resolution by the district court upon proper objection.” Alternatively, the court found that the quantities in fact were reasonably foreseeable, given defendant’s involvement in the conspiracy. U.S. v. Pofahl, 990 F.2d 1456 (5th Cir. 1993).
5th Circuit finds no withdrawal from conspiracy simply because defendant cancelled trip. (275) Defendant claimed that he should not be responsible a quantity of drugs imported by his conspiracy through Guatemala because he had withdrawn from the conspiracy by the time the drugs were imported. The 5th Circuit upheld the district court’s rejection of this argument. The drugs arrived in Guatemala during the same month that defendant had scheduled a trip to the country. Though defendant cancelled his trip after a coconspirator was arrested, that action did not constitute the “affirmative action to defeat the conspiracy” required to constitute withdrawal. U.S. v. Pofahl, 990 F.2d 1456 (5th Cir. 1993).
5th Circuit finds testimony was specific enough to determine drug quantity. (275) The 5th Circuit affirmed that a witness’s testimony was specific enough to support the determination that 16.9 kilograms of cocaine base were involved in defendants’ conspiracy. The witness testified that beginning in 1988 or 1989 he bought and cooked and sold cocaine with defendants. He had extensive first-hand knowledge of the suppliers, the times, locations and amounts of drugs involved in every phase of the distribution business. The testimony clearly established that the drug transactions occurred within the time frame set out in the indictment for the conspiracy. The testimony also established, within a specific range, the amount of drugs involved in the transactions. U.S. v. Buckhalter, 986 F.2d 875 (5th Cir. 1993).
5th Circuit affirms defendant’s involvement in methamphetamine conspiracy. (275) Defendant pled guilty to conspiracy to manufacture amphetamine and methamphetamine. He argued that he was only involved in the manufacture of amphetamine and therefore it was error to include methamphetamine in his base offense level calculations. The 5th Circuit rejected this argument, since defendant pled guilty to conspiracy to manufacture both amphetamine and methamphetamine. At his plea hearing, defendant agreed, under oath, with the prosecutor’s summary of evidence, admitting to the evidence pertaining to methamphetamine and to his association with the co-conspirators. The district court clearly accepted defendant’s sworn testimony at his plea hearing over his unsworn recantation at sentencing. U.S. v. Ruff, 984 F.2d 635 (5th Cir. 1993).
5th Circuit rejects determination that 20 kilograms to be distributed by supplier was reasonably foreseeable to customer. (275) A drug supplier notified his customers that he was expecting a shipment of cocaine. Defendant was one of those customers, and he requested a couple of ounces. The entire shipment was 20 kilograms. The 5th Circuit held that defendant could not be held accountable for the entire 20 kilograms to be distributed by the supplier, rejecting the district court’s determination that the 20 kilograms was reasonably foreseeable to defendant. Although defendant admitted that he had purchased cocaine from the supplier in the past, and it was reasonable to infer that defendant knew his supplier was dealing in amounts larger than a few ounces, it was “quite a leap” from one-half a kilogram to 20 kilograms. There was only the barest evidence that defendant had a relationship with the supplier, and there was no indication of the regularity of his purchases, the amounts he purchased, or the length of time he had been associated with his suppliers. Moreover, there was no indication that defendant was aware of the other members of the conspiracy or the extent of their purchases. U.S. v. Mitchell, 964 F.2d 454 (5th Cir. 1992).
5th Circuit affirms that defendant who had bought substantial quantities of drugs could foresee additional drugs sold by conspiracy. (275) Defendant pled guilty to being involved in a 45 kilogram marijuana transaction. The district court refused to hold him accountable for all the marijuana in the conspiracy, but estimated that the amount of drugs imputable to defendant was double the amount of his 45 kilogram transaction. The 5th Circuit affirmed. Drug ledgers indicated that defendant was assigned a code number and had bought substantial quantities of cocaine over a period of time. An individual dealing in a sizeable amount of drugs ordinarily would be presumed to recognize that the drug organization with which he deals extends beyond his universe of involvement. U.S. v. Thomas, 963 F.2d 63 (5th Cir. 1992).
5th Circuit remands to determine whether amount distributed by conspiracy was foreseeable. (275) Defendants challenged the district court’s determination that they were responsible for two kilograms of cocaine distributed by both of them over the course of their conspiracy. The 5th Circuit remanded for resentencing because the district court failed to determine whether either defendant knew or reasonably should have foreseen the total amount distributed by the conspiracy. The presentence report’s attribution of more than two kilograms of cocaine to each defendant was based on drug sales made by both defendants. Although defendants objected to this conclusion, the district court adopted the presentence report’s conclusion. Neither the judge nor the presentence report addressed whether each defendant knew or could have reasonably foreseen the amount of drugs involved in the conspiracy. U.S. v. Webster, 960 F.2d 1301 (5th Cir. 1992).
5th Circuit holds that 2-1/2 year old drug trafficking charge was not part of instant offense for mandatory minimum sentencing purposes. (275) Defendant was convicted of drug charges after smuggling cocaine on an aircraft. Under 21 U.S.C. section 960(b)(1), the mandatory minimum sentence of 10 years is doubled if a defendant has a prior drug trafficking conviction. The 5th Circuit rejected defendant’s claim that her 1988 Kansas conviction for conspiracy to sell cocaine and her present conviction were all one episode of an ongoing conspiracy. The time between the two crimes was more than 2-1/2 years, the statutory offenses charged were completely different, and the offenses took place in geographically distant locations. U.S. v. De Veal, 959 F.2d 536 (5th Cir. 1992).
5th Circuit determines that old drug sales were part of same conspiracy despite lapse of time. (275) In determining defendant’s sentence, the district court considered defendant’s drug transactions from 1984 to 1989. Defendant contended that the 1984 transactions were not part of the later conspiracy for which he was convicted because he moved to another town in 1985, and while he was there, he had no dealings with his co-conspirators. Moreover, he argued that the statute of limitation barred consideration of the 1984 transactions. The 5th Circuit upheld the inclusion of the 1984 transactions in defendant’s base offense level. A single conspiracy is not converted into multiple conspiracies simply by lapse of time, change in membership, or a shifting emphasis in the location of the operation. The five-year limitations period for prosecuting the 1984 transactions did not expire until the fall of 1989, after defendant’s arrest and indictment. In addition, guideline section 1B1.3(a)(2) does not limit the definition of relevant conduct to acts within the limitations period. U.S. v. Lokey, 945 F.2d 825 (5th Cir. 1991).
5th Circuit reviews relevant conduct determination under clearly erroneous standard. (260) The 5th Circuit held that a district court’s determination that certain transactions were part of the conspiracy for which a defendant was convicted is subject to review under the “clearly erroneous” standard. The district court is in the best position to determine what constitutes relevant conduct. U.S. v. Lokey, 945 F.2d 825 (5th Cir. 1991).
5th Circuit remands for failure to find that amount of drugs in conspiracy was foreseeable. (275) The 5th Circuit vacated defendant’s sentence and remanded for resentencing because, in holding defendant accountable for all of the drugs involved in the conspiracy, the district court failed to find that the quantity was reasonably foreseeable to defendant. In order to attribute to a particular defendant amounts of a controlled substance involved in a conspiracy, the sentencing court must determine the quantity of the substance that the defendant knew or should have reasonably foreseen. The “reasonable forseeability” requirement requires a finding separate from the finding that defendant was a co-conspirator. U.S. v. Puma, 937 F.2d 151 (5th Cir. 1991).
5th Circuit holds distributors accountable for all drugs produced by large-scale methamphetamine conspiracy. (275) Defendants contended that it was improper to sentence them on the basis of the total amount of methamphetamine produced and distributed during the course of a large-scale drug conspiracy because they were unaware of the full extent of the operation. The 5th Circuit affirmed. Defendants were distributors who sold proportionately small, but nonetheless sizeable amounts of the methamphetamine produced at the drug lab. Notwithstanding defendants’ contention that their roles were limited, both defendants had a long-term relationship with the leader of the conspiracy and wore a gold arrowhead necklace that indicated that they were part of the conspiracy’s “inner circle.” U.S. v. Devine, 934 F.2d 1325 (5th Cir. 1991).
5th Circuit affirms sentencing co-conspirators on the basis of total quantity of drugs seized from all co-conspirators. (275) The 5th Circuit rejected defendants’ argument that it was improper to attribute to each of them the total quantity of drugs seized from all co-conspirators. As co-conspirators engaged in a common enterprise, the defendants could have reasonably foreseen that any member of the conspiracy could have been in possession of that quantity of drugs at any time. U.S. v. Harris, 932 F.2d 1529 (5th Cir. 1991).
5th Circuit upholds sentencing defendant on the basis of entire quantity of drugs distributed by conspiracy. (275) Defendant contended that the district court erred by including cocaine that was part of a larger conspiracy in his base offense level calculations. He contended that he was involved in a small cocaine operation, only tangentially involved with the major one, and that he did not know that the larger conspiracy was occurring. The 5th Circuit rejected this. The government introduced credible evidence that the drug conspiracy involved defendant from the very start and that he worked for the other defendants. It was only later that defendant left the group to start his own subsidiary distribution ring, which continued to get cocaine from members of the old conspiracy. Furthermore, unrebutted government evidence showed that a joint venture was ongoing, with defendant as a member. Defendant was thus part of several groups which were connected with the original large conspiracy. Therefore charging him with knowledge of the entire conspiracy and drug amounts was not error. U.S. v. Thomas, 932 F.2d 1085 (5th Cir. 1991).
5th Circuit upholds sentencing based on total amount of drugs involved in conspiracy. (275) Defendant contended that his offense level should have been calculated based upon the 100 grams of heroin mentioned in the charge rather than the 17 kilograms distributed by the conspiracy in which he was involved. The 5th Circuit upheld the calculation, finding that defendant failed to demonstrate that the information relied upon by the district court was materially untrue. Defendant signed a factual resume admitting his involvement in the conspiracy. The presentence report indicated that defendant knew about the overall conspiracy and was fully involved in it. This conclusion was based on the statements of the investigative agents assigned to the case. U.S. v. Vela, 927 F.2d 197 (5th Cir. 1991).
5th Circuit upholds consideration of cocaine to be distributed under common scheme or plan. (275) Defendants argued that because they had agreed to purchase and distribute only seven kilograms of cocaine, it was improper for the district court to sentence them on the basis of the 20 kilograms to be distributed by their co-conspirators as a group. The 5th Circuit rejected this argument, finding the guidelines clearly authorize including drugs not specified in the count of conviction if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction. In this case, there was ample evidence from which to conclude that defendants were part of a common scheme or plan to distribute 20 kilograms of cocaine. U.S. v. Giraldo-Lara, 919 F.2d 19 (5th Cir. 1990).
5th Circuit upholds inclusion of drugs distributed by co-conspirators. (275) Defendant objected to including cocaine, which was part of transactions involving defendant’s co-conspirators, in the calculation of his base offense level. Defendant contended that this was inconsistent with the judgment in one of his co-conspirator’s cases. The 5th Circuit rejected this contention, noting that the other case had been remanded because the district court failed to resolve defendant’s contention that he was not part of the conspiracy to distribute cocaine. In this case, although defendant objected to the presentence report’s conclusion that he was a part of the conspiracy, the district court expressly resolved this disputed matter against him. Therefore, it was proper for the district court to rely upon this fact at sentencing. U.S. v. Ponce, 917 F.2d 846 (5th Cir. 1990).
5th Circuit reverses sentence where defendant was unaware of drug distribution by others. (275) Defendant pled guilty to 1 count of distribution of heroin. Defendant obtained the heroin from the house of a man who supplied heroin to several other persons. At sentencing, the court included the amount of heroin that the other persons sold to calculate defendant’s base offense level. The 5th Circuit reversed, holding that the record did not show that defendant was part of a jointly undertaken scheme to distribute heroin with any defendants but his supplier. Absent a finding that defendant knew or should have foreseen the distribution of heroin by these other persons, these quantities were improperly included in defendant’s base offense level. U.S. v. Rivera, 898 F.2d 442 (5th Cir. 1990).
5th Circuit finds sentence properly based on amount of drugs entire conspiracy contemplated, not amount actually purchased. (275) Defendant joined a conspiracy that sought to purchase 2000 pounds of marijuana. However, defendant only agreed to purchase 500 pounds. After being arrested, defendant pled guilty to one count of Interstate Travel in Aid of Racketeering, 18 U.S.C. § 1952, in order to avoid prosecution on conspiracy with intent to distribute marijuana 21 U.S.C. 846. In calculating the sentence, the judge used the 2000 pound figure and defendant appealed, contending that the 500 pound figure should have been used. The 5th Circuit affirmed the sentence, ruling that under guideline 2D1.4 the offense level for an incomplete conspiracy is the same as if the object of the conspiracy had been completed. Although defendant only wanted to buy 500 pounds he was a member of a conspiracy seeking to buy 2000 pounds and therefore the judge’s calculation was not clearly erroneous. U.S. v. Farrell, 893 F.2d 690 (5th Cir. 1990).
5th Circuit upholds offense level based on approximating similar cocaine transactions by defendant. (275) Defendant in a drug conspiracy was arrested before he could pick up the 493 grams of cocaine at an airport. The district court calculated defendant’s base level at more than 500 grams of cocaine. The 5th Circuit affirmed, relying on commentary to guideline 2D1.4. In calculating the base offense level in a conspiracy conviction, the offense level should be the same as if the conspiracy had been completed. A co-conspirator testified that larger shipments had been made pursuant to the conspiracy and were generally larger than the drugs seized on the day of defendant’s arrest. The district court’s findings were not clearly erroneous. U.S. v. Pierce, 893 F.2d 669 (5th Cir. 1990).
6th Circuit approves sentence based on acquitted drug quantity. (275) At trial, a jury found defendants guilty of conspiracy, but determined that the conspiracy did not involve 1000 or more marijuana plants or 1000 or more kilograms of marijuana. Instead, the jury convicted defendants of a conspiracy involving between 100 and 1000 marijuana plants and 100-1000 kilograms of marijuana. Despite the acquittal, the district court sentenced defendant based on the larger amount. Based on its recent en banc decision in U.S. v. White, 551 F.3d 381 (6th Cir. 2008) (en banc), the Sixth Circuit rejected defendants’ argument that their sentences could not be based on a drug quantity for which the jury had acquitted them. A district court may use acquitted conduct that it finds by a preponderance to enhance a defendant’s sentence “so long as the resulting sentence does not exceed the jury-authorized United States Code maximums.” Here, the acquitted conduct was proven by a preponderance of the evidence. Although it was “an extremely close question,” the district court did not clearly err in concluding that an intercepted truckload of marijuana was attributable to defendants. U.S. v. Young, 553 F.3d 1035 (6th Cir. 2009).
6th Circuit holds defendants accountable for drugs based on extensive involvement in conspiracy. (275) Defendants challenged the court’s finding that they were responsible for at least 1.5 kilograms of crack cocaine. The Sixth Circuit found ample evidence to support the court’s drug quantity finding. Defendants were involved on a daily basis in a conspiracy involving over two dozen kilograms of crack cocaine. They drove Burns to his drug deals, assisted in processing and selling the crack cocaine, and carried money back and forth between Burns and his customers. Keene testified that, over a five-month period, each of these defendant assisted with more than one transaction involving the weekly sale of a kilogram of crack cocaine. With such an extensive involvement in Burn’s drug operation, it was reasonably foreseeable to these defendants both that the conspiracy involved over 1.5 kilograms of crack cocaine and that their actions were furthering that jointly undertaken criminal activity. U.S. v. Burns, 298 F.3d 523 (6th Cir. 2002).
6th Circuit requires particularized findings about scope of agreement and foreseeability. (275) Although defendant personally handled a much smaller quantity, the district court held that defendant was responsible for the conspiracy’s total distribution of 15 kilograms of cocaine. The Sixth Circuit, following the 2nd Circuit’s opinion in U.S. v. Studley, 47 F.3d 569 (2d Cir. 1995), held that in order to hold a defendant accountable for the acts of others under § 1B1.3(a)(1)(B), a district court must make particularized findings with respect to both the scope of the defendant’s agreement and the foreseeability of his co-conspirator’s conduct. Here, the district court did make particularized findings with respect to the foreseeability prong, holding that defendant was aware that the conspiracy was broader than the three transactions in which he was involved. However, the court did not address the first prong – whether the acts of the co-conspirators were within the scope of defendant’s conspiratorial agreement. Accordingly, the case was remanded for the court to make further findings. U.S. v. Campbell, 279 F.3d 392 (6th Cir. 2002).
6th Circuit holds defendant accountable for drugs originally in package before Customs removed them. (275) Customs officials intercepted a package from Thailand containing 293.3 grams of heroin. The officials removed most of the heroin, leaving about six grams in the package. Officials then made a controlled delivery of the package, which was ultimately opened by defendant. The Sixth Circuit upheld the district court’s decision to hold defendant accountable for the full 293.3 grams, even though Customs officials removed all but six grams from the package. The 293.3 grams of heroin were “within the scope of the criminal activity that defendant jointly undertook.” See Note 2 to § 1B1.3. Although defendant was not charged with conspiracy, a “jointly undertaken criminal activity” can exist “whether or not charged as a conspiracy.” See Note 12 to § 2D1.1. Defendant would clearly have received the entire 293 grams contained in the package but for the fortuitous intervention of Customs officials. U.S. v. Ukomadu, 236 F.3d 333 (6th Cir. 2001).
6th Circuit agrees that defendant responsible for same quantity as co-conspirators. (275) The district court attributed 1400 pounds of marijuana to defendant because his co-conspirators were held accountable for this quantity. The Sixth Circuit ruled that the quantity of drugs attributed to defendant’s co-conspirators was relevant, but not sufficient by itself to support his sentence. However, a preponderance of the evidence supported the district court’s finding that defendant was responsible for the same quantity of drugs as others in the conspiracy. Defendant was a leader of the drug conspiracy. He was involved in shipping the marijuana, overseeing its distribution, and collecting profits. However, this did not obviate the sentencing court’s duty to support its finding that the conspiracy involved at least 1400 pounds of marijuana. The court stated only that an accomplice made seven trips from Texas to Saginaw and delivered 200 pounds per trip, for 1400 pounds. However, these trips were not the only evidence available to the court. An informant testified that defendant had been involved in the conspiracy for eight years, that other couriers had been used, and that monthly quantities shipped to Saginaw exceeded 500 pounds. There also was a drug record book that showed large quantities of money going back to Texas. Finally, while at large following his trial, defendant was apprehended during a drug bust in Texas and was held accountable for 72 pounds of marijuana. Thus, the district court’s finding of 1400 pounds was supportable and probably conservative. U.S. v. Hernandez, 227 F.3d 686 (6th Cir. 2000).
6th Circuit says guidelines’ reasonably foreseeability analysis applies in finding responsibility for drug death. (275) Isaacs sold heroin to Phillips, resulting in Phillips’s death from a heroin overdose. The district court held Isaacs responsible for Phillips’s death under 21 U.S.C. § 841(b)(1)(C) (20-year mandatory minimum sentence “if death or serious bodily injury” resulted from drugs) and USSG § 2D1.1(a)(2) (requiring enhanced offense level of 38 if the defendant is convicted under § 841(b)(1)(C) and “death or serious bodily injury resulted). The court refused to impose a heightened base offense level on any of the other nine defendants, finding the government did not establish that their conduct was the “critical proximate cause” of Phillips’s death. The Sixth Circuit held that the district court erred in not applying the reasonable foreseeability analysis of § 1B1.3(a)(1)(B). Under this analysis, a defendant is accountable for the conduct of other conspirators if that conduct was (1) reasonably foreseeable to him, and (2) in furtherance of jointly undertaken criminal activity. The court rejected U.S. v. Patterson, 38 F.3d 139 (4th Cir. 1994), which held that § 841(b)(1)(C) has no reasonable foreseeability requirement. The court had “no difficulty in reconciling the mandatory minimum language of § 841(b)(1)(C) and § 1B1.3(a)(1)(B),” noting that a number of circuits have applied the foreseeability analysis of the relevant conduct provision to the calculation of drug quantities for purposes of the mandatory minimum sentences under 21 U.S.C. §§ 841(b)(1) and 846. U.S. v. Swiney, 203 F.3d 397 (6th Cir. 2000).
6th Circuit says drug quantity finding supported by evidence. (275) Defendant was convicted of various charges arising out of a long-running multi-state drug and money laundering conspiracy. He argued that the district court erred in finding that the distribution of more than 50 kilograms of cocaine was reasonably foreseeable to him because it was based upon the unreliable testimony of his co-conspirator wife. The wife was cross-examined concerning the quantities distributed by the organization. Although she attempted to minimize the amount of drugs involved, she conceded that she never claimed that amount was less than 50 kilograms. The estimates she provided at trial added up to about 63 kilograms. There was evidence that this was a conservative estimate – one distributor had records showing defendant and his wife received seven kilograms in a two-month period rather than the wife’s claim that they were receiving three kilograms every two months. There was also substantial evidence that defendant and his wife were in the cocaine business together. In light of this, the Sixth Circuit ruled that the district court’s drug quantity finding was supported by the evidence. U.S. v. Long, 190 F.3d 471 (6th Cir. 1999).
6th Circuit says counsel not ineffective in failing to challenge drug quantity. (275) Defendant argued that his counsel was ineffective for failing to challenge the quantity of drugs used to determine his base offense level. The Sixth Circuit held that defendant did not satisfy the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). At the time of defendant’s arrest, 23.7 grams of crack were found on his person, and an additional 203.4 grams were found in a gym bag in the car in which he was traveling, resulting in a total sentencing weight of 227.1 grams. Defendant’s co-conspirators testified that they traveled with defendant to Clarksville specifically to distribute crack cocaine. Thus, there was ample evidence to support the court’s findings that the possession of the drugs was foreseeable and in furtherance of the jointly undertaken criminal activity. Thus, the entire 227.1 grams was properly attributable to defendant. Wright v. U.S. 182 F.3d 458 (6th Cir. 1999).
6th Circuit says defendant not responsible for plants sold by grower not part of conspiracy. (275) Defendant and McQueen both sold processed marijuana. They had a deal to refer customers to each other when they were out of marijuana, so they would not lose customers. McQueen referred a confidential informant to defendant. On several other occasions, with McQueen’s permission, the informant purchased marijuana directly from defendant. On one occasion, the informant asked McQueen for permission to buy marijuana plants from Douglas. McQueen did not object and gave the informant directions to Douglas’s residence. The informant purchased 240 plants from Douglas. The Sixth Circuit agreed that because defendant and McQueen shared customers, any sales of processed marijuana McQueen or defendant made were attributable to each other. However, defendant was not involved in a conspiracy with Douglas, and it was improper to attribute to defendant the 240 plants Douglas sold to the informant. Besides this isolated sale, there was no evidence that Douglas was a member of the conspiracy between defendant and McQueen. The district court improperly assumed that because defendant was a top dealer, any marijuana grown in the area was attributable to him. U.S. v. Hoskins, 173 F.3d 351 (6th Cir. 1999).
6th Circuit holds that 1992 “reasonably foreseeable” amendment not a change in the law. (275) The appellate court remanded defendant’s case to the district court for the limited purpose of reassessing defendant’s fine. Defendant argued that a change in the law authorized and obligated the district judge to consider the new law at resentencing. Amendment 439 revised § 1B1.3 in 1992 to provide that a defendant will only be held accountable for the conduct of others when the conduct was reasonably foreseeable to the defendant. The Sixth Circuit held that Amendment 439 was merely a clarification of existing law rather than a change in any underlying principles. Although not originally part of the guidelines itself, this standard was set forth in the application notes as early as 1989, in note 1 to § 1B1.3. Thus, the “reasonably foreseeable” standard was recognized by this circuit in cases before defendant’s sentencing. The language defendant relied on was simply transferred from the commentary to the actual text of the guideline. Thus, it did not represent a change in the law at all. If defendant thought that the district judge misapplied the guidelines, he should have raised this in his initial appeal. U.S. v. Campbell, 168 F.3d 263 (6th Cir. 1999).
6th Circuit upholds finding that defendant was involved with conspiracy for a year. (275) Defendant was a member of a large marijuana distribution conspiracy. The government presented a tape-recording of a telephone conversation which suggested defendant was involved in the conspiracy in November 1993. A witness also testified that defendant told him he had been dealing with the marijuana conspirators for about a year. Defendant, however, testified that while he had known for about a year before his arrest that his friends were drug dealers, he did not become involved in the drug business until April 1994. The Sixth Circuit affirmed a drug quantity calculation based on the district court’s finding that defendant was involved in the conspiracy for a year. The court specifically found defendant was not credible, in marked contrast to the witness, who the judge found “quite persuasive.” The court’s credibility findings were virtually unassailable on appeal and there was no basis for rejecting them. U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
6th Circuit rules court did not rely solely on marriage to make reasonable foreseeability finding. (275) Defendants, husband and wife, were members of a large marijuana conspiracy. They contended that the district court unfairly attributed to them drug quantities delivered to the other solely because they were married to each other. The Sixth Circuit found that the trial evidence linking defendants in illegal activity made it reasonable to infer that each was well aware of the amounts being trafficked by the other. The district court did not rely on the mere fact that they were married. The nature of their relationship, as opposed to the simple fact of their marriage, supported a reasonable foreseeability finding. U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
6th Circuit agrees defendant could foresee drugs that passed through his house. (275) Defendant and his family were members of a large marijuana distribution conspiracy. The district court held him accountable at sentencing for various marijuana amounts that passed through his house during the course of the conspiracy. Defendant argued that because he did not directly receive the marijuana and did not help in repackaging it, he should not be held accountable for any of the marijuana attributed to him. The Sixth Circuit affirmed the drug quantity determination. Defendant fundamentally had a credibility dispute. He testified that he did not know what was going on in the conspiracy, but the court did not believe him. It held defendant accountable for various drug amounts that came into his house, having concluded that he was well aware of those transactions. The reasonable foreseeability standard applied by the district court was correct and justified its conclusions. U.S. v. Maliszewski, 161 F.3d 992 (6th Cir. 1998).
6th Circuit affirms drug quantity where no support for defendant’s challenges in the record. (275) Defendant was the member of a gang that processed and distributed cocaine and crack. He argued that the district court erroneously attributed cocaine quantities that were not reasonably foreseeable to him. The Sixth Circuit found no basis for reversal. The court previously rejected his claim regarding his membership in the gang as spurious, as well as legally inconsequential. Defendant offered no coherent, factually supported argument. For example, although he contended that members of the conspiracy kept their “buys” secret from one another, he pointed to no credible evidence supporting this assertion. U.S. v. Walker, 160 F.3d 1078 (6th Cir. 1998).
6th Circuit finds defendant involved with conspiracy even after his arrest. (275) Defendant helped a drug conspiracy transport marijuana from Mexico to California to Detroit. He contended that he was only responsible for a December 1993 shipment of 500 pounds of marijuana, rather than the over 2500 pounds the conspiracy transported over several shipments in January and June of 1994. The Sixth Circuit ruled that defendant was properly held accountable for all the shipments based on his extensive contact and association with his co-conspirators. These deliveries were all reasonably foreseeable to defendant. Defendant’s arrest did not negate his liability for the June 1994 load. Based on a taped conversation between other conspirators, and defendant’s pattern of contemporaneous calls to one conspirator after his release on bond, it was apparent that defendant continued to be involved in the conspiracy even after his arrest. U.S. v. Gaitan-Acevedo, 148 F.3d 577 (6th Cir. 1998).
6th Circuit holds defendant accountable for drugs delivered by her recruits. (275) Defendant helped a drug conspiracy transport five loads of marijuana from Mexico to California to Detroit. The district court held defendant responsible for all five loads transported by a co-conspirator, since he had been recruited into the conspiracy by defendant. The Sixth Circuit agreed that defendant was accountable for the drugs delivered by the coconspirator defendant recruited into the conspiracy. There was overwhelming evidence of defendant’s involvement in the conspiracy. The recruit’s drug deliveries were reasonably foreseeable to defendant. U.S. v. Gaitan-Acevedo, 148 F.3d 577 (6th Cir. 1998).
6th Circuit holds defendant accountable for marijuana shipment. (275) Defendant and his brother were involved in a marijuana conspiracy. The district court held defendant accountable for two separate shipments of marijuana from California to Michigan that were purchased by a dealer in Michigan. Defendant denied responsibility for one 150-pound shipment and admitted responsibility for a second 160-pound shipment. The Sixth Circuit held that defendant was sufficiently involved with the disputed shipments to hold him accountable for it. The disputed shipment was loaded into and transported from California to Michigan in the same car as the other shipment. The car was driven by defendant’s nephew. Since the marijuana was being “fronted” to the buyer, the nephew was to stay with the buyer until the marijuana was sold. Although the money was to be paid to defendant’s brother, the nephew told the buyer to contact defendant if he could not get in touch with the brother. During the time that the buyer was selling the marijuana and the nephew was staying with him, the buyer had a number of telephone conversations with defendant. When the nephew absconded with the drug proceeds, defendant directed the buyer to retrieve the car and deliver it to him in California. U.S. v. Godinez, 114 F.3d 583 (6th Cir. 1997).
6th Circuit rejects 50 kilogram finding where evidence showed only 13 kilograms. (275) Defendant was convicted of a cocaine conspiracy, and the district court held him accountable for between 50 and 150 kilograms of cocaine. The Sixth Circuit held that the 50 kilogram finding was clear error because the evidence only showed defendant’s involvement in 13 kilograms. Although there was evidence that two men with whom defendant dealt received an additional 14 kilogram shipment and that defendant met with the men the day the shipment came to town, there was no evidence that any of these 14 kilograms went to defendant. At sentencing, the prosecutor said that defendant “probably gets fairly close to 50 kilograms in stuff that he laid his hands on or laid eyes on.” This vague statement was not sufficient to enhance defendant’s sentence. U.S. v. Milledge, 109 F.3d 312 (6th Cir. 1997).
6th Circuit rejects bystander theory to hold defendant accountable for attempted cocaine exchange. (275) Defendant and an associate negotiated to sell cocaine to undercover agents. Eventually, an agent paid the associate for 12.2 grams of crack. The agent asked where defendant was and defendant responded that he had just left to get something to eat. Defendant, the associate and another conspirator were arrested immediately before a second proposed transaction. Defendant admitted responsibility for the drugs in the first transaction, but argued that he was a mere “tag-along” or “bystander” and thus was not responsible for the drugs to be exchanged in the second transaction. The Sixth Circuit held that it was reasonable to reject defendant’s bystander theory because the jury clearly rejected this theory in convicting him. U.S. v. Jones, 102 F.3d 804 (6th Cir. 1996).
6th Circuit remands for findings on individual participation in conspiracy. (275) Three defendants challenged the amount of drugs used to determine their offense level in a drug conspiracy. The court found that the conspiracy distributed between 16‑29 kilograms of crack, and attributed this to each defendant. Only one defendant formally objected. The Sixth Circuit held that the district court’s failure to make individualized findings as to two of the defendants was plain error. The court made no findings on the defendants’ individual participation in the conspiracy. The error was plain because many cases make clear that a sentencing court has the obligation to make individualized findings regarding each conspirator’s participation in the conspiracy. The error affected substantial rights, since it resulted in an increase of up to five years in defendants’ sentences. The court should also revisit its decision to credit the statement of an out‑of‑court conspirator. Hearsay must have sufficient indicia of reliability to be used at sentencing. Here, the out‑of‑court statement was not entirely consistent with the conspirator’s trial testimony. U.S. v. Tucker, 90 F.3d 1135 (6th Cir. 1996).
6th Circuit directs court to resolve whether conduct occurred before conspiracy. (275) The district court held defendant accountable for 26 kilograms of cocaine based in part on sales of cocaine made in late December 1989 and early 1990. The indictment alleged that the conspiracy began “in or about January of 1990,” and the court did not find that the 1989 and 1990 deliveries were part of the conspiracy. The Sixth Circuit held that the district court erred in attributing 26 kilograms of cocaine to defendant without resolving the factual issues raised by defendant. Even if these sales were credited to defendant, it only established 12‑18 kilograms. The court failed to adequately explain where the remaining 8‑14 kilograms came from. Further, the court did not resolve the factual dispute as to whether this conduct occurred outside the time frame of the conspiracy. If it was not part of the conspiracy, then the court was required to determine whether it could nonetheless be considered relevant conduct. U.S. v. Nesbitt, 90 F.3d 164 (6th Cir. 1996).
6th Circuit multiplies quantity sold per day by number of days in conspiracy. (275) The district court focused on the amount of cocaine transported from Florida to Tennessee during the time each defendant participated in the conspiracy, and on the amount of cocaine distributed at a particular housing project during the relevant time period. The court analyzed the time that each defendant participated in the conspiracy and the role they played, and made specific findings as to the amount of cocaine foreseeable to each defendant. These amounts were unique to each defendant. A court may estimate a quantity of drugs for sentencing purposes based on the testimony of the average amount of drugs distributed per day multiplied by the number of days in which the defendant participated in the conspiracy if these figures are reliable, and the average amount sold per day was reasonably foreseeable. U.S. v. Elder, 90 F.3d 1110 (6th Cir. 1996).
6th Circuit finds defendant responsible for meth where he helped locate chemicals and aided in manufacture. (275) Police arrested defendant and others while they were manufacturing methamphetamine. The Sixth Circuit held defendant accountable for the entire amount of methamphetamine attributable to the conspiracy. He helped locate and obtain the necessary chemicals and was present and aided in the actual manufacture of the methamphetamine. U.S. v. Jennings, 83 F.3d 145 (6th Cir. 1996).
6th Circuit holds housing project gang members responsible for total amount of cocaine. (275) Defendants were part of a gang that dominated the drug trade at a housing project. The Sixth Circuit upheld the district court’s finding that defendants were responsible for the total amount of cocaine powder transported by the organization from New York to Ohio—25 kilograms—rather than the amounts they took from the shipment and ultimately sold. Although defendants each had their own “soldiers” to sell their portion of the cocaine on the streets and worked independently, the money was pooled to pay for later trips to purchase more powder cocaine from a common source. One defendant was also responsible for the powder cocaine that was cooked into crack and sold by the other defendants. Although this defendant sold mostly powder cocaine, he was primarily responsible for converting the powder into crack, which was eventually sold either by his soldiers or the soldiers of his co‑conspirators. It is appropriate to convert powder cocaine into cocaine base for sentencing purposes if an object of the conspiracy was to convert powder to crack. U.S. v. Bingham, 81 F.3d 617 (6th Cir. 1996).
6th Circuit holds that nonconstitutional claims not raised at trial or on appeal are waived. (275) A presentence report found defendant accountable for 50 kilograms of cocaine distributed by members of her conspiracy. Defendant did not challenge the finding and the court accepted the 50-kilogram figure. On direct appeal, defendant challenged her conviction but asserted no sentencing errors. Then, in a § 2255 petition defendant argued for the first time that the court failed to make an explicit factual finding as to the scope of the criminal activity she had agreed to undertake, as required by amended § 1B1.3. The Sixth Circuit held that defendant waived the claim: nonconstitutional claims not raised at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process. Thus, mistakes in the application of the sentencing guidelines will rarely, if ever, warrant relief from the consequences of waiver. Defendant’s claim fell short of indicating a denial of due process. Grant v. U.S., 72 F.3d 503 (6th Cir. 1996).
6th Circuit holds defendant responsible for all drugs in van. (275) Defendant and two others were arrested in a van carrying drugs from Florida to Ohio. The Sixth Circuit upheld the district court’s finding that defendant was accountable for all the drugs in the van. Defendant and his co-defendants acted jointly, and therefore the co-defendants’ actions were foreseeable to defendant. The district court made sufficient findings to support its determination. U.S. v. Critton, 43 F.3d 1089 (6th Cir. 1995).
6th Circuit finds that drug quantity was supported by special jury verdict. (275) The 6th Circuit upheld the trial court’s finding that defendant was responsible for five kilograms of cocaine. Several witnesses said that defendant had personally provided cocaine to them. Defendant was aware of her husband’s actions and participated in the conspiracy. Furthermore, the amount was supported by a special jury verdict. While it was not binding, it did suggest that the district court did not commit clear error. U.S. v. DeFranco, 30 F.3d 664 (6th Cir. 1994).
6th Circuit remands for individualized findings regarding scope of conspiracy. (275) The district court sentenced defendants based on testimony from a police detective about the extent of the drug conspiracy. The 6th Circuit remanded because the district court failed to make individualized findings regarding the scope of the conspiracy and the duration and nature of each defendant’s participation in the scheme. The court held a single hearing at which a single government witness testified, then indiscriminately held defendants accountable for all the narcotics channeled through the conspiracy. A judge may not, without further factual findings, simply sentence a defendant according to the amount of narcotics involved in a conspiracy. U.S. v. Meacham, 27 F.3d 214 (6th Cir. 1994).
6th Circuit remands to address foreseeability, scope of activity or duration of involvement. (275) The 6th Circuit found that the district court erred in failing to address foreseeability, scope of criminal activity or duration of defendants’ involvement in the conspiracy. Because the scope of conduct for which a defendant can be held accountable under the guidelines is significantly narrower than the conduct embraced by the law of conspiracy, a sentencing judge may not, without further findings, simply sentence a defendant according to the amount of narcotics involved in the conspiracy. U.S. v. Ferguson, 23 F.3d 135 (6th Cir. 1994).
6th Circuit remands for foreseeability finding as to drug quantity. (275) The district court sentenced defendants on the assumption that they must be held accountable for the total quantity of drugs that were the object of the conspiracy. The 6th Circuit remanded for a determination of foreseeability. Under section 1B1.3, a conspirator is not automatically responsible for all the narcotics funneled through the conspiracy. Quantities handled by other conspirators are attributed to a defendant only if the conduct of the other conspirators was “reasonably foreseeable” to the defendant and was within the scope of the criminal activity the defendant agreed jointly to undertake. U.S. v. Obiukwu, 17 F.3d 816 (6th Cir. 1994).
6th Circuit says foreseeability not an issue where defendant is directly involved in drug shipment. (275) Defendant accompanied his cousin on a trip to purchase methamphetamine and was convicted of conspiracy to possess methamphetamine with intent to distribute. He argued that he should not be held accountable for the entire 26 grams that his cousin purchased on that trip, since he thought the cousin was a small-time drug dealer who purchased only six to 10 vials of methamphetamine per week. The 6th Circuit noted that the reasonable foreseeability standard has no application when the defendant is directly involved with the shipment, even if he was mistaken as to how much contraband he was transporting. Here, defendant was directly involved in the purchase and transportation of all 26 grams of methamphetamine, and therefore the district court correctly calculated the drug quantity. U.S. v. Cochran, 14 F.3d 1128 (6th Cir. 1994).
6th Circuit holds that defendant knew of all five kilograms of cocaine involved in conspiracy. (275) The 6th Circuit affirmed that defendant was involved with between five and 15 kilograms of cocaine, rejecting defendant’s claim that it was unreasonable to impute to him the total quantity of drugs involved in the conspiracy. Although defendant suggested that he and a conspirator transacted business on only one occasion, other evidence indicated a more involved business association between the two. The conspirator testified that he and defendant were in the drug business together from May 1990 to November 1990, both planning strategy and leading the operation. The police found three and one-half kilograms of cocaine. According to the conspirator, this was part of a five-kilogram batch he obtained in October 1990. Based on defendant’s connection to the conspirator and his role in leading the conspiracy, it was reasonable to conclude defendant knew about all five kilograms. U.S. v. Warner, 10 F.3d 1236 (6th Cir. 1993).
6th Circuit holds that full amount distributed by conspiracy was reasonably foreseeable. (275) The 6th Circuit held that it was apparent that the scope of the criminal activity jointly undertaken by defendant and his two co-conspirators was the same as the scope of the entire conspiracy. All three conspirators were shown to have been involved in the conspiracy from its inception. All three were, moreover, shown to have been active participants throughout the conspiracy. U.S. v. Lloyd, 10 F.3d 1197 (6th Cir. 1993).
6th Circuit finds 1000 kilos of marijuana were not foreseeable to defendant. (275) The 6th Circuit refused to hold a marijuana seller responsible for between 1000 and 3000 kilograms of marijuana distributed by a conspiracy, finding no basis for concluding that he could foresee this quantity was involved. Defendant sold marijuana in quantities of one pound or less. In addition, he once took possession of 100 pounds of marijuana from one co-conspirator at a time the co-conspirator was concerned due to the arrest of other conspirators. Further shipments from Mexico were in doubt. There was nothing in the record to show that defendant could foresee that more marijuana would be involved. U.S. v. Moss, 9 F.3d 543 (6th Cir. 1993).
6th Circuit says foreseeability is not sufficient unless part of jointly undertaken criminal activity. (275) The district court held defendant responsible for all 21.96 kilograms of cocaine distributed by the conspiracy in which he was involved, finding it was reasonably foreseeable that the distribution network of which he was a part was selling this quantity. The 6th Circuit remanded to determine the scope of the criminal activity defendant agreed to undertake. Foreseeability is only one of the limitations on the ability of a court to sentence one participant in a conspiracy for the conduct of other participants. Another limitation is that the conduct must be in furtherance of the “jointly undertaken criminal activity.” The 1992 amendment to section 1B1.3 and its commentary clarifies this point. Because the court did not address the scope of the criminal activity defendant agreed to jointly undertake, remand was necessary. U.S. v. Jenkins, 4 F.3d 1338 (6th Cir. 1993).
6th Circuit says “major supplier” was capable of delivering 500 kilograms of cocaine. (275) Three conspirators claimed that the district court improperly included 500 kilograms of cocaine that one of the conspirators said he had in Mexico awaiting delivery. They claimed such statements were mere “puffery,” particularly since the subsequent sale by the conspirator only involved three kilograms of cocaine. The 6th Circuit affirmed that the conspirator who made the statement, a “major supplier of drugs” for the conspiracy, had the intent and capability to deliver on his statements regarding the large shipment, and was therefore responsible. However, the district court held the other two conspirators responsible for the entire quantity without making the additional finding that it was reasonable to impute knowledge of all of the conspiracy’s criminal activity to them. In order for the court to make the necessary findings, their cases were remanded. U.S. v. Medina, 992 F.2d 573 (6th Cir. 1993).
6th Circuit says defendant could foresee transaction involved 15 kilograms of cocaine. (275) Defendant was involved in a conspiracy to purchase 15 kilograms of cocaine from undercover agents. The 6th Circuit affirmed that defendant could reasonably foresee that the transaction involved 15 kilograms. Defendant was the “bag man” in the deal; he both carried and saw the money. There was also evidence that he admitted that the cocaine was going to be resold for $40,000 per kilogram. The district court’s inference that he knew how much cocaine was involved was a reasonable one. U.S. v. Sims, 975 F.2d 1225 (6th Cir. 1992).
6th Circuit remands because record did not reflect reasons for offense level selection. (275) Defendant was involved in a conspiracy to purchase 15 kilograms of cocaine from undercover agents. The 6th Circuit found that the record was insufficient to support the determination that he was responsible for all 15 kilograms, since the record did not reflect the guideline range or the manner in which the district court reached it. After sentencing his co-conspirators, the court merely stated “I need not repeat the scoring for [defendant], I think the record clearly reflects the Guideline range and the manner in which the Court reached it.” U.S. v. Sims, 975 F.2d 1225 (6th Cir. 1992).
6th Circuit upholds sentencing defendant on the basis of all drugs in the conspiracy. (275) Defendant argued that the district court erred in determining that he was responsible for 50 kilograms of cocaine and 500 kilograms of cocaine base. Sufficient evidence existed to show that defendant was involved in a conspiracy which acquired over 400 to 500 kilograms of cocaine, 90 percent of which was distributed as crack. Under section 1B1.3, the district court must consider all quantities of drugs involved in the same conspiracy. U.S. v. Williams, 962 F.2d 1218 (6th Cir. 1992).
6th Circuit remands to determine whether defendant knew co-conspirator possessed large quantity of cocaine. (275) Although defendant pled guilty to three cocaine sales totaling 1 2/8 ounces, the district court held defendant accountable for the one pound bag of cocaine possessed by defendant’s brother. The 6th Circuit remanded because the district court failed to find that defendant knew or should have known the amount of cocaine his brother possessed, or that a conspiracy to distribute the larger amount of cocaine was established. Although the district court found that a conspiracy existed between defendant and his brother for the purpose of admitting hearsay statements made in furtherance of the conspiracy, it did not state what it found to be the object of the conspiracy or its extent. U.S. v. Blankenship, 954 F.2d 1224 (6th Cir. 1992).
6th Circuit finds it “reasonably foreseeable” that conspiracy would involve 5 kilograms of cocaine. (275) The 6th Circuit rejected defendant’s argument that the district court erred in failing to make a determination as to the amount of cocaine involved in the conspiracy as it related to him. Evidence indicated that he was involved in the conspiracy from the beginning, in several different respects. The district court’s finding that he either knew or could have reasonably foreseen that the conspiracy would involve at least five kilograms of cocaine was not clearly erroneous. U.S. v. Paulino, 935 F.2d 739 (6th Cir. 1991), superseded on other grounds by guideline as stated in U.S. v. Caseslorente, 220 F.3d 727 (6th Cir. 2000).
6th Circuit rules defendant was estopped by argument that prior offense was part of same offense. (275) Defendant contended that because he was incarcerated until September, 1988, he should not be held responsible for any drugs involved in his drug conspiracy until after that date. The 6th Circuit rejected this argument, since it was inconsistent with his position at sentencing that the prior arrest was “all part of the same behavior pattern” as the instant offense. He made this argument in an attempt to convince the court that the prior conviction should be considered as part of the conspiracy and not as a prior offense for criminal history purposes. U.S. v. Paulino, 935 F.2d 739 (6th Cir. 1991), superseded on other grounds by guideline as stated in U.S. v. Caseslorente, 220 F.3d 727 (6th Cir. 2000).
6th Circuit affirms sentencing defendant on the basis of total drugs involved in conspiracy. (275) Defendant argued that even if he was a member of the alleged conspiracy, his offense level should have been 12 since the only evidence of a transfer involving him was when he handed a vial containing less than 25 grams of cocaine to a government informant. However, the district court found that defendant was aware of quantities of cocaine in the range of 500 grams to 2 kilograms or that such quantities were reasonably foreseeable to him. The 6th Circuit held this conclusion was not clearly erroneous given defendant’s relationship with his brothers, the two other co-conspirators, the evidence that he had accompanied one brother on at least three trips to one of their suppliers of cocaine, and his joint occupation of premises with a frequent customer of the business. U.S. v. Hodges, 935 F.2d 766 (6th Cir. 1991).
6th Circuit upholds sentencing for more than one kilogram of cocaine based on testimonial evidence. (275) Defendants argued that the district court’s findings that 5 to 14.9 kilograms of cocaine were involved in their drug conspiracy was erroneous because only one kilogram was introduced into evidence at trial. The 6th Circuit upheld the district court’s finding. A co-conspirator testified that he transported more than seven kilograms of cocaine at the request of one of the defendants. The fact that the evidence was testimonial and not physical was irrelevant. U.S. v. Sanchez, 928 F.2d 450 (6th Cir. 1991).
6th Circuit upholds finding that defendant was accountable for at least 50 kilograms of cocaine. (275) Defendant was sentenced based on a finding that he was responsible for distribution of at least 50 kilograms of cocaine. The 6th Circuit affirmed, relying upon testimony by a coconspirator that he distributed at least 70-80 kilograms of cocaine at the direction of the defendant, the defendant had several other sources of cocaine, that the defendant acted as a courier, seller, and trusted lieutenant, and that he had frequent conversations with the main defendant about deliveries and made numerous cocaine pickups and cash deliveries. Based upon this evidence, the district court was not clearly erroneous in concluding that the defendant either knew or could have reasonably foreseen that the conspiracy would involve at least 50 kilograms of cocaine. U.S. v. Walton, 908 F.2d 1289 (6th Cir. 1990).
6th Circuit rules use of entire amount of cocaine to establish offense level was proper. (275) Defendant was convicted of aiding and abetting possession of 816 grams of cocaine with intent to distribute. The police found 36 grams in a bedroom and 780 grams in a bag inside a playhouse on the front porch. The trial court took the entire amount of cocaine into consideration to enhance her offense level. The 6th Circuit affirmed the sentence. Section 2D1.1 permits consideration of all circumstances that are part of the “same course of conduct.” Despite the defendant’s assertion that she did not know the total amount of cocaine her son was selling, she did have knowledge of his activities. By aiding and abetting a part of his conduct, she aided and abetted all of it. The panel found that because this finding was not “clearly erroneous,” it was proper to enhance the offense level under § 2D1.1. The Commentary to § 1.B1.3 also specifies that in drug distribution cases, the entire quantity of drugs involved may be considered if it is part of the same course of conduct. U.S. v. Sailes, 872 F.2d 735 (6th Cir. 1989).
7th Circuit counts drugs sold by other street-level sellers working for same gang. (275) Defendant pled guilty to heroin conspiracy charges. The district court found that he was responsible for between one and three kilograms of heroin, based on the heroin defendant personally sold, as well as the heroin sold by other street-level sellers who were working alongside him during the 6:00 a.m. to noon shift. He contended that he operated independently from the other street-level sellers, and was not acting jointly for purposes of § 1B1.3(a)(1)(B). The Seventh Circuit upheld the inclusion of the drugs sold by the other street-level sellers. Defendant admitted that he was one of three or four other street-level sellers who worked between 6:00 a.m. and noon, “selling heroin on behalf of Bagley and other New Breeds gang members.” He agreed with the government that Bagley was a “supervisor.” Thus, defendant and the other street sellers were working for the same organization, during the same shift, for the same supervisor, and selling heroin owned by that organization. These facts did not suggest several street-level sellers operating independently to run their own drug franchises. U.S. v. Adams, __ F.3d __ (7th Cir. Feb. 26, 2014) No. 12-2379.
7th Circuit reverses for failure to adequately determine drugs attributable to defendant. (275) Defendant’s PSR concluded that he should be held responsible for at least seven kilograms of cocaine, while the government argued for at least 20 kilograms. The court declined to adopt either number, and sentenced defendant to 20 years, the mandatory minimum term. The Seventh Circuit reversed, holding that the court failed to make an adequate determination of the amount of drugs attributable to defendant. At first glance, the transcript suggested that the district court did determine a drug quantity by stating that “we’re pretty secure based on the testimony in going with the PSR, which is 5 to 15 kilograms.” However, the court went on to explicitly question the reliability of the evidence cited by the Probation Office to support its drug quantity calculation. Then, despite refusing to credit the evidence supporting a significant portion of the PSR’s drug quantity finding, the district court settled on “5 to 15 kilograms” as an acceptable compromise. A district court cannot simply select a number without at least some description of the reliable evidence used to support the finding and the method used to calculate it. U.S. v. Claybrooks, 729 F.3d 699 (7th Cir. 2013).
7th Circuit upholds drug quantity finding based on earlier start date for conspiracy. (275) Defendant’s PSR found that his marijuana trafficking conspiracy began in December 2001, and held him accountable for 10,206 kilograms of marijuana. Defendant contended that the start date was August 2002, when Raines joined the conspiracy, resulting in only 9,639 kilograms of marijuana attributable to defendant. The district court found that the conspiracy had begun much earlier, and found that defendant was responsible for more than 10,000 kilograms of marijuana. The Seventh Circuit affirmed. It was “a little troubling that the district court articulated its process of determining the quantity of attributable drugs as ‘get[ting] over to in excess of 10,000.'” However, the record showed that the court was guided by the evidence, rather than a goal of reaching a certain offense level. It was reasonable for the court to conclude that the conspiracy did not start from scratch when Raines joined, but ran for years prior to that, and thus the drug quantity easily exceeded 10,000 kilograms. U.S. v. Harmon, 721 F.3d 877 (7th Cir. 2013).
7th Circuit upholds finding that conspiracy distributed 700 grams of heroin per week. (275) Defendant operated a drug trafficking organization that sold primarily heroin and some crack cocaine. The organization purchased raw heroin from suppliers, and “stretched” the heroin by diluting it with an over-the-counter sleep aid. The court found that the conspiracy distributed 700 grams of heroin per week based on testimony from an ATF agent who interviewed defendant after his arrest. The agent testified that defendant told agents that the conspiracy took 100 grams of raw heroin a week and stretched it into 700 grams of heroin mix a week for the past year. The Seventh Circuit found no error. The district court did not misunderstand defendant’s conflicting testimony, it simply did not believe him. It was more likely that defendant would have sought to minimize his conduct, not deliberately inflate the quantity of drugs being purchased and resold every year. Corroborating testimony from other witnesses suggested that the conspiracy obtained as much as 200-400 grams of raw heroin per week, making the court’s estimate appear conservative. U.S. v. Block, 705 F.3d 755 (7th Cir. 2013).
7th Circuit says findings were sufficient to hold defendant accountable for all marijuana in conspiracy. (275) Defendant was a dealer in a marijuana conspiracy run by Mortier. At sentencing, the court found that the conspiracy involved at least 2,177 kilos of marijuana, and attributed the entire amount to defendant. The Seventh Circuit ruled that the district court’s fact-finding was sufficient to hold defendant accountable for all the marijuana in the conspiracy. The court first determined that the scope of defendant’s jointly undertaken criminal activity included the regular receipt by the Mortier organization of large deliveries of marijuana (about 100 pounds per month), from Canada through New York for distribution in and around Madison. The marijuana arrived in Madison in private cars, was offloaded at Mortier’s residence, and then fronted to lower-level dealers like defendant for further distribution. The court found that defendant was aware of the specific details of the conspiracy and its method of operation, including the source, packaging and delivery, and the names of other street-level marijuana distributors supplied by Mortier. The court’s findings, though not accompanied by lengthy analysis, were easily sufficient and basically tracked the knowledge and modus operandi factors. U.S. v. Stadfeld, 689 F.3d 705 (7th Cir. 2012).
7th Circuit finds insufficient evidence that retailers of fentanyl were in joint activity with wholesalers. (275) Defendants were wholesalers of heroin and fentanyl. Their customers, the retail dealers, diluted the fentanyl before selling it to their customers, in order to make it safer to consume. The quantity of diluted fentanyl sold by the retailers was 11 to 16 times the quantity of fentanyl that the defendants had sold them. The judge attributed the entire amount of retail sales to defendants, finding that their wholesaling was a “jointly undertaken activity” with the retail sales. The Seventh Circuit reversed, finding the government did not prove a jointly undertaken activity. There was insufficient evidence that the retailers were anything more than buyers. A seller is not a party to a conspiracy with a mere buyer from him. Moreover, attributing the amount of the diluted retail product to a wholesale seller involves double counting. The quantity of the diluted retail product, if attributed to a wholesaler defendant, will already account, in part, for the fact that fentanyl is more potent than heroin. If the same weight of fentanyl and heroin bought by a retailer makes 50 retail doses of fentanyl versus five of heroin, the seller of fentanyl will be “credited” with 10 times the quantity as the seller of heroin. U.S. v. Alvarado-Tizoc, 656 F.3d 740 (7th Cir. 2011).
7th Circuit says defendants could reasonably foresee that fictitious stash house might contain 20 kilos of cocaine. (275) Defendants and two others were caught in an undercover sting operation planning to rob a drug stash house. The Seventh Circuit upheld the district court’s finding that the amount of cocaine involved in the planned robbery was at least 20 kilograms. On three separate occasions, the agent involved in the undercover operation told members of the conspiracy that the house typically contained at least 20 kilos of cocaine. Two of those times, both defendants were present. This was sufficient to meet the “reasonably foreseeable” standard. U.S. v. McKenzie, 656 F.3d 688 (7th Cir. 2011).
7th Circuit holds that court implicitly found that uncharged drugs were part of conspiracy. (275) Defendant argued that the district court’s total drug quantity determination was insufficient because the court failed to find that the quantities of marijuana not specified in the conspiracy count qualified as “relevant conduct” under the Guidelines. The Seventh Circuit found no error. A review of the record showed that the court found that defendant’s conspiracy involved 421 kilograms of marijuana, and that defendant intended to possess that much marijuana throughout his crimes. These statements constituted “an implicit finding that those unspecified amounts were part and parcel of the conspiracy count.” While the court could have been detailed in its relevancy finding, its statements were adequate to show that the unspecified quantities of marijuana were part of the conspiracy count. U.S. v. Long, 639 F.3d 293 (7th Cir. 2011).
7th Circuit finds sufficient evidence to support finding as to entry into drug conspiracy. (275) In pleading guilty to participating in a drug-trafficking conspiracy, defendant admitted selling heroin in August 2005. At sentencing, the district court found that the conspiracy in which defendant participated sold heroin from 2002 to 2005 and that defendant sold heroin for the conspiracy beginning in January 2005. The court found that defendant remained in the conspiracy even though he was incarcerated from late January 2005 to July 2005. In support of these findings, the district court relied on testimony at the trials of defendant’s co-conspirators that defendant sold heroin in January 2005 and information in defendant’s presentence report that defendant had been arrested at a house from which the conspiracy sold heroin in January 2005. The court used its findings as to the dates of defendant’s participation in the conspiracy to determine the drug quantities attributable to him. The Seventh Circuit held that the district court relied on adequate evidence to support its finding that defendant participated in the conspiracy beginning in January 2005. U.S. v. Turner, 604 F.3d 381 (7th Cir. 2010).
7th Circuit reverses to determine amount of meth reasonably foreseeable to defendant. (275) Defendant was convicted of conspiracy to distribute and possess with intent to distribute methamphetamine. The PSR stated that defendant was fully aware that the conspiracy involved the distribution of more than 150 kilograms of meth, an amount that corresponded to an offense level of 38. Defendant noted that the jury found him responsible for no more than 500 grams of meth, and urged the court to apply a lower base offense level. The district court concluded that “38 is a reliable estimate of the amount of methamphetamine that was being dealt by the members of the conspiracy.” In consideration of the jury’s finding that defendant was responsible for less than 500 grams of meth, the court applied a four-level reduction, thereby “split[ting] the difference.” The Seventh Circuit reversed, holding that the district court erred by not determining the amount of methamphetamine that was reasonably foreseeable to defendant. Although the court is not bound by the Guidelines in sentencing defendant, it is required to calculate the appropriate guideline sentencing range. U.S. v. Dean, 574 F.3d 836 (7th Cir. 2009).
7th Circuit remands to decide whether crack in co-conspirator’s house was attributable to defendant. (275) Defendant and Sykes were crack addicts who bought, sold and used drugs together. They spent a lot of their time getting high at Sykes’s house. The district court found that the 40 grams of crack found in Sykes’s residence were part of defendant’s relevant conduct for sentencing purposes. The Seventh Circuit vacated and remanded for resentencing because the court did not (a) determine the scope of defendant’s jointly undertaken criminal activity, (b) consider whether Sykes’s possession of the 40 grams was in furtherance of any joint criminal activity, and (c) consider that the drugs were found in the residence five days after the end of the charged conspiracy. While the court did consider whether Sykes’s possession was foreseeable to defendant, it did not consider that question in the context of a connection with the joint criminal activity between defendant and Sykes. U.S. v. Fox, 548 F.3d 523 (7th Cir. 2008).
7th Circuit finds insufficient evidence that defendant was responsible for 15 kilos of crack. (275) Defendant told Camerena, a drug dealer, that he could supply cocaine that would give “almost everything back in return,” roughly 95 percent, if Camerena’s customer wanted the cocaine “for cooking.” The deal never went through. Later that month, defendant again boasted that he could supply powder cocaine that was “good for the kitchen.” This time Camerena responded that his customer wanted something that “works well for the barbeque.” Defendant, however, had none of this high-quality cocaine in stock, and the conversation ended with defendant promising to call when some higher quality cocaine became available. A week later, defendant called Camerena and asked how many “karats” (code for kilograms of powder cocaine) he wanted. During this conversation, nothing was said about “cooking.” Defendant confirmed that he could supply 14 or 15 “karats.” Agents arrested defendant with 1.996 kilograms of cocaine. At sentencing, the district court held defendant accountable for 14 or 15 kilograms of crack. The Seventh Circuit reversed, finding “a dearth of evidence” to support this finding. Defendant never sold crack to anyone, so the government needed to prove that defendant reached an agreement with Camerena to sell powder cocaine intending that it be converted into crack. The government failed to show that defendant contemplated that the 14-15 kilograms of powder cocaine would be converted into crack by Camerena’s customer. U.S. v. Soto-Piedra, 525 F.3d 527 (7th Cir. 2008).
7th Circuit says foreseeability not an issue for drugs defendant actually carried. (275) Defendants were convicted of marijuana conspiracy charges. The judge held them responsible for the 1,407 kilograms of marijuana transported to a co-conspirator’s house, and recovered by police. Defendants argued that the district court failed to find that the entire load of marijuana was reasonably foreseeable to them. The Seventh Circuit ruled that the district court was not required to consider foreseeability for conduct that the defendants personally undertake. “Reasonable foreseeability” is a way of holding one conspirator accountable for the conduct of others. But here, one defendant drove the 1,407 kilos of marijuana from Houston to Indianapolis, and the other defendant had an ownership interest in the drugs and supervised the conveyance and delivery. Both defendants were unloading bales when they were arrested. The district court found that both defendants were directly involved with the entire load, and thus there was no reason to address whether the drugs were reasonably foreseeable. U.S. v. Martinez, 518 F.3d 505 (7th Cir. 2008).
7th Circuit says defendant could foresee completion of three-kilogram drug transaction. (275) Defendant participated in several conversations concerning the conspirators’ sale of 50 kilograms of cocaine to an undercover police officer. The 50-kilogram sale was not completed because the conspirators demanded that the officer pay for the cocaine at the time of delivery, which he could not do. The officer then stated that he would provide an advance payment for three kilograms of cocaine once he had seen one kilogram of the cocaine. Later that day, another conspirator brought one kilogram to the officer in the presence of defendant. The officer told the conspirator that he would pay for the initial package of three kilograms of cocaine. Later that day, defendant and his co-conspirators were arrested. The Seventh Circuit ruled that defendant was properly held accountable for the full three kilograms of cocaine, rejecting his claim that the completion of the deal was not reasonably foreseeable to him. Defendant had a lengthy and significant participation in the conspiracy. Even though the three-kilogram deal was not completed, defendant was present at all meetings between the conspirators and the officer where they negotiated the sale of three kilograms. U.S. v. Vega-Montano, 341 F.3d 615 (7th Cir. 2003).
7th Circuit uphold reliance on witness testimony to calculate drug quantity. (275) The district court found that defendant was responsible for between 50 and 150 kilograms of cocaine. The Seventh Circuit found no error. Based on the evidence that more than 44 kilograms were purchased from Herrera, five kilograms from Llanos, more than one kilogram from Ginjuama, and the estimated street taxes paid to Marisol during the 138 weeks of this conspiracy, the district court made a conservative calculation. The panel also rejected defendant’s claim that the court’s reliance on the witness testimony somehow violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi does not affect calculations of relevant conduct or other guideline determinations for sentences that fall within the statutory maximum. In addition, credibility questions are for the trier of fact to resolve. U.S. v. Souffront, 338 F.3d 809 (7th Cir. 2003).
7th Circuit holds defendant accountable for full amount of drugs involved in conspiracy. (275) Defendant contended that the court erred in holding him responsible for the full amount of cocaine involved in his gang’s drug conspiracy. The Seventh Circuit found no error. Notwithstanding defendant’s protestations of “minimal” involvement in the conspiracy, the evidence revealed that defendant was the leader’s “right-hand man” and that he enjoyed a position of significant status and authority within the gang hierarchy as a result. The evidence also revealed defendant’s personal involvement in a number of multi-kilogram transactions. The Seventh Circuit held that the district court was entitled to infer that someone with defendant’s degree of involvement could have reasonably foreseen that the conspiracy involved at least 150 kilograms of cocaine. U.S. v. Mansoori, 304 F.3d 635 (7th Cir. 2002).
7th Circuit holds that defendant need not know of or foresee cocaine hidden in marijuana bundles. (275) State troopers found in the truck defendant was driving 22 bundles of marijuana weighing 315 kilograms. A few weeks later, a crime lab technician found about six kilograms of cocaine concealed inside the marijuana bundles. Defendant argued that the district court should not have considered the cocaine when it sentenced him because he did not know or reasonably foresee that it was hidden in the marijuana. The Seventh Circuit held that it was not necessary that defendant knew or foresaw that cocaine was in the truck, as long as he knew he possessed a controlled substance, and the mandatory minimum for cocaine was properly applied. Defendant admitted to possessing 315 kilograms of marijuana, rendering him eligible for five to 40 years imprisonment. The judge sentenced him to 10 years, well below the statutory maximum. Defendant’s knowledge, or lack of knowledge, of the cocaine had no effect on his sentence. The failure to specify drug quantity and type in the indictment did not present an Apprendi problem because defendant’s sentence was well below the statutory maximum for possession with intent to distribute 315 kilograms of marijuana. U.S. v. Martinez, 301 F.3d 860 (7th Cir. 2002).
7th Circuit bases drug calculation on amount defendant told others he could provide. (275) Defendant argued that he never “‘intended” or “agreed” to provide cocaine to Templin, and any comments he made to her to that effect were the result of one too many drinks or mere boasting. The district court found 544.06 grams of cocaine attributable to defendant and sentenced him to 60 months. The finding was based on the PSR, conversations defendant had with others, and remarks he made involving Templin. Defendant joined the conspiracy late, but moved up the ranks rather quickly to become Matias’s “right hand man.” Matias distributed about 7.7 kilograms of cocaine, but the district court took into account defendant’s late arrival and attributed only a portion of that amount to him. Defendant told Templin that he could obtain 500 grams of cocaine from Matias. The district court found this statement credible because Matias dealt large amount of cocaine and defendant was his very close assistant. Accordingly, the Seventh Circuit found it was not clear error for the district court to find defendant accountable for at least 544.06 grams. U.S. v. Martin, 287 F.3d 609 (7th Cir. 2002).
7th Circuit upholds drug quantity attribution despite inadequate findings. (275) The district court attributed five kilograms of cocaine to defendant based on its finding that defendant was “involved in the conspiracy for a significant period of time, and [] the logical conclusion [from that] is that he was personally in receipt of the kilogram of cocaine more than once.” It was not clear from the record what “kilogram” the court was referring to in its ruling. The Seventh Circuit affirmed despite the insufficient findings, because defendant could not make a colorable argument that there was no adequate basis in the record to support the attribution. The conspiracy trafficked in well over five kilos of cocaine, and whatever portion of this amount that was reasonably foreseeable to defendant was attributable to him as relevant conduct. The district court’s finding that defendant was involved in the conspiracy for a significant period of time sufficiently supported the conclusion that at least five kilos of the conspiracy was foreseeable to him. The finding was supported by evidence that he waited along with several co-conspirators for cocaine shipments of 25 to 30 kilos on more than one occasion. U.S. v. Thompson, 286 F.3d 950 (7th Cir. 2002).
7th Circuit holds that additional drugs transactions were reasonably foreseeable to defendant. (275) The district court found that defendant was responsible for 1.559 kilograms of heroin. The court included in its calculations 5.9 grams found on defendant’s premises and 400 grams that defendant discussed in a recorded conversation with a co-conspirator. The court then determined that defendant and Salami “knew about each other and their roles in the conspiracy” and were accountable for all the heroin that their counterpart could have foreseeably delivered. Therefore, the court concluded that defendant was responsible for one kilogram of heroin that Salami intended to deliver to Bonsue. Finally, the district court found that defendant should be held responsible for the 115 grams of heroin that Bonsue sold to the FBI informant. Evidence presented at trial established that defendant was present, and was often consulted by Bonsue, when some of these transactions were executed. The Seventh Circuit agreed with the district court and found that it was reasonably foreseeable to defendant that these smaller transactions would be required to further the overall conspiracy to sell a larger quantity of drugs. U.S. v. Nubuor, 274 F.3d 435 (7th Cir. 2001).
7th Circuit remands to decide if money launderer could reasonably foresee drug sales. (275) At sentencing, the district court said defendant was “only being charged with his actual participation in the criminal offense for which he has been convicted” and that “none of the conspiracy activities are being charged to [him] in the sentencing.” However, the judge then proceeded to identify the amount of money that defendant laundered and counted it in the drug conspiracy, converting it into its rough equivalent in cocaine, as if defendant had actually sold drugs, and applied the drug trafficking guideline, § 2D1.1. On appeal, the Seventh Circuit held this was plain error, because the court’s comments made it unclear whether it knew it should be sentencing defendant for the reasonably foreseeable activities of his co-conspirators in furtherance of the conspiracy. The Seventh Circuit suggested that because defendant knew of the drug money, he may have reasonably foreseen the drug sales associated with that money, but this “conclusion is not preordained.” Moreover, on remand the court should indicate whether it was using retail or wholesale value of the drugs in converting the laundered money into drugs. “Not adjusting for the difference may make [defendant] accountable for a larger quantity of cocaine than was truly reasonably foreseeable.” U.S. v. Hunt, 272 F.3d 488 (7th Cir. 2001), superseded on other grounds by statute as stated in U.S. v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir. 2004).
7th Circuit attributes to defendant crack thrown down by co-conspirator while fleeing from police. (275) Following a third controlled buy of crack from defendant, the police approached the house to execute a search warrant. Defendant was standing in front of the house with Doug and another person. When defendant saw the officers, he started running from the house and threw to the ground a bag containing 1.5 grams of cocaine. Doug ran out the back door of the house. Just outside the back door of the house, the officers found a bag containing 19 grams of crack. The district court attributed to defendant the 19 grams of crack found behind the house, concluding that defendant and Doug jointly undertook the criminal activity of selling crack. The Seventh Circuit found this conclusion well-supported. Doug was present at the house during two of the controlled buys. Defendant admitted that he had been selling crack for Doug for almost a week prior to his arrest. The 19 grams were a foreseeable part of the joint undertaking. Defendant sat in the room with Doug as he cut up about 4 ounces of crack into smaller portions for resale. Defendant’s admitted relationship with Doug, his repeated presence at the house with Doug over a two-day period, and his presence in the room while Doug prepared resale portions of crack supported the district court’s conclusion that defendant must have expected that some or all of the resale portions Doug was preparing would end up in his hands to sell. U.S. v. Booker, 248 F.3d 683 (7th Cir. 2001).
7th Circuit holds that government must establish crack conversion ratio foreseeable to defendant. (275) Bonner testified at defendant’s sentencing hearing that he made about 30 pickups of powder cocaine from defendant, receiving one kilogram of cocaine each time. Also, defendant was aware that some cocaine was being converted to crack. The district court found that defendant had delivered 30 kilograms of cocaine to Bonner, and that he should have foreseen that at least 1.5 kilograms of cocaine would have been converted to crack cocaine. The Seventh Circuit vacated the sentence because the government did not provide reliable evidence of the conversion ratio foreseeable to defendant. “When the Government cannot prove that all of the cocaine was converted to crack, it must at least provide some evidence of a conversion ratio to support the district court’s finding. Furthermore, the district court’s determination must be based on reliable evidence … and not on impermissible speculation.” Here, although the government provided evidence that defendant could foresee the conversion of some percentage of the powder cocaine into crack, it offered no evidence showing what percentage he expected would be converted. It also did not provide testimony regarding the percentage of cocaine lost in the conversion, which has been relied upon in similar cases. U.S. v. Stott, 245 F.3d 890 (7th Cir. 2001).
7th Circuit holds foreseeability analysis unnecessary where defendant aided and abetted delivery of larger shipment. (275) Police intercepted a truck delivering 15 boxes of marijuana to Chicago. The driver was to meet defendant on arrival, and defendant was to pay him $20,000 or $25,000 in cash. As the driver, who was now cooperating with police, continued to Chicago, police monitored a number of phone calls between the driver and defendant, including one in which defendant directed defendant to deliver the marijuana to a particular warehouse during a certain time. At the appointed time, defendant watched as 11 of the 15 boxes were loaded into a waiting van. Defendant then attempted to load two boxes in his car, and was arrested. Defendant argued that he was only responsible for the 2 boxes of marijuana he actually purchased (about 200 pounds), rather than the 1539 pounds of marijuana involved in the entire shipment. Although defendant he knew that the truck contained marijuana for other buyers, he maintained that he did not know how much marijuana the truck held, did not know who the other buyers were, and did not know the prices anyone else was paying. The Seventh Circuit found it unnecessary to examine whether defendant could foresee the total amount of marijuana in the truck, since defendant aided and abetted the delivery of the entire shipment. Defendant arranged and oversaw the delivery of the entire 1500 pounds of marijuana. Thus, he was liable under the aiding and abetting provision of § 1B1.3. U.S. v. Guerrero-Martinez, 240 F.3d 637 (7th Cir. 2001).
7th Circuit holds defendant accountable for drugs found in nearby apartment. (275) Defendant was arrested after delivering drugs to co-conspirators who had agreed to sell the drugs to a confidential informant. The Seventh Circuit upheld the district court’s decision to hold defendant accountable for drugs discovered in a nearby apartment used by the conspirators. The circumstantial evidence sufficiently proved that defendant knew of the drugs found in the apartment and was not an innocent person who was wrongfully caught up in the situation. Defendant had a key to the apartment, and had clothing and other items in the apartment. He admitted that he saw a microwave on the bed, which could be construed as drug paraphernalia. U.S. v. Albarran, 233 F.3d 972 (7th Cir. 2000).
7th Circuit upholds attributing drug quantities to supervisors of street gang. (275) Defendants McCain and Ellis were “Governors” of the Gangster Disciples street gang. The Seventh Circuit upheld the district court’s attributing cocaine sales that were made in “Pink’s Alley” to McCain because that area was within his territory. As for Ellis, the Seventh Circuit said it “would have preferred more detailed findings,” but noted that the district court “knew what was reasonably foreseeable to the Governors,” and “knew how large the operations were.” Therefore, the panel upheld the district court’s finding. U.S. v. Smith, 223 F.3d 554 (7th Cir. 2000).
7th Circuit holds police officer accountable for drugs distributed by organization he protected. (275) While serving as a police officer, defendant accepted pay-offs from drug organizations, distributed drugs, and agreed to fix court cases. The Holmes drug operation, which defendant assisted for more than a year, operated 24 hours of day. Drug activity in the area was so vast that it interfered with the free and unimpaired flow of traffic, and city buses could not operate on the street because of the constant drug activity. The government claimed, without objection, that the Holmes drug operation sold in excess of 1.5 kilograms of crack each week or two. At sentencing, defense counsel admitted that his client was responsible for all reasonably foreseeable quantities of drugs within the scope of the criminal activity that he jointly undertook. Accordingly, the Seventh Circuit concluded that the judge did not commit clear error in holding defendant accountable for more than 1.5 kilograms of crack cocaine. U.S. v. Jones, 209 F.3d 991 (7th Cir. 2000).
7th Circuit says drug suppliers could foresee co-conspirator’s sales. (275) Defendant Webb claimed that he was involved in only 20 drug transactions, and the transactions between Frye, Lipscomb, and Jones were not reasonably foreseeable to him. Defendant Pigee claimed that the drug transactions at Frye and Lipscomb’s house were not foreseeable, noting that there was no evidence that he shared or pooled income with his co-defendants. The Seventh Circuit found that the record supported a finding that the crack transactions involving Lipscomb and Frye were reasonably foreseeable to both defendants, even if they were not actually present at each and every transaction. Thomas’ testimony established that defendant Pigee supplied crack to Frye, and Jones’ testimony indicated that the same was true of defendant Webb. Thus, the record suggested that not only did defendants “know of” these transactions, but that they were working behind the scenes to ensure that Frye and Lipscomb had enough drugs to sell. U.S. v. Pigee, 197 F.3d 879 (7th Cir. 1999).
7th Circuit holds defendant accountable for all drugs in conspiracy. (275) Defendant argued that he was not responsible for the full 3000 kilograms of marijuana involved in the conspiracy because his role in the offense did not involve him directly in many of the drug transactions. He pointed out that he was not directly involved in many deliveries, did not plan particular shipments, and did not have actual knowledge of or participation in the full conspiracy. The Seventh Circuit upheld the district court’s finding that the full amount of marijuana attributable to the conspiracy was attributable to defendant. Defendant was a trusted lieutenant and part of the “inner circle” of the leaders. He was involved in the conspiracy from the beginning. He often made drug transportation arrangements over the phone with all of the other conspirators; he rented a storage shed for the storage of drugs; he delivered drug proceeds; he was present at the delivery of several large shipments; and he knew at least generally that large amounts of drugs were being transported on a regular basis, even if he was not directly involved in every shipment. U.S. v. Robbins, 197 F.3d 829 (7th Cir. 1999).
7th Circuit says drugs in seized truck were part of defendant’s conspiratorial agreement. (275) Pagan Auto Sales company served as the distribution center for drugs transported to the Chicago area from Mexico. Both defendant Pagan and defendant Herrera-Ruiz dealt drugs directly from the premises of the dealership. The Seventh Circuit agreed that defendant Pagan was responsible for drugs found in a truck seized by the DEA in Texas. There was strong evidence that Pagan knew about the shipment and that the drug delivery was in furtherance of his criminal enterprise. Pagan admitted he knew a truckload of drugs under the control of Quinones had been seized by the DEA. Aleman testified that the shipment was destined for Pagan Auto Sales, bank records indicated that checks in Quinones’ name were being deposited in the dealership’s bank account, aerial photos showed trucks similar to the one seized parked on the dealership’s lot, and records showed that Pagan was the lienholder on several other trucks used by the Diaz brothers. Thus, it was not clear error to hold Pagan accountable for the seized drugs. However, there no evidence that the shipment was within the scope of Herrera-Ruiz’s conspiratorial agreement, and thus, he was not accountable for the seized drugs. U.S. v. Pagan, 196 F.3d 884 (7th Cir. 1999).
7th Circuit defers to district court’s credibility finding on defendant’s membership in conspiracy. (275) Defendant insisted that he was an independent dealer rather than a member of the Bell drug conspiracy. However, shortly after they were arrested, Bell and Martinez told police that defendant was a salaried member of the conspiracy who made $300-$500 a week, the conspiracy provided defendant with an apartment and a vehicle, Bell paid defendant’s bail, and defendant sold between one and four ounces of crack a week. Defendant pointed out that at a co-conspirator’s trial neither Bell nor Martinez mentioned him when they were asked to list the salaried members of the conspiracy. However, defendant was not standing trial at the time, and when Bell was specifically asked about defendant during cross-examination, Bell stated that he paid defendant a salary. Defendant also offered his landlord’s affidavit to show that he had been paying his own rent. However, it was possible that Bell gave defendant the money to pay his rent. Given these conflicting accounts, the Seventh Circuit found no clear error in the district court’s finding that Bell and Martinez were more credible than defendant. U.S. v. Brack, 188 F.3d 748 (7th Cir. 1999).
7th Circuit says defendant responsible for crack he cooked even though sold by other conspirators. (275) Based on defendant’s admission that he cooked two ounces of cocaine into crack for Collins every week for a year and a half, the district court held him accountable for 1.5 kilograms of crack. Other conspirators testified that they either observed or assisted defendant in cooking cocaine into crack. Defendant argued that his admission and the co-conspirators’ statements merely connected him with the cooking of crack and not with the sale of the drugs. Because he did not actually sell the crack, defendant contended that he should not be held responsible for it. The Seventh Circuit held that the fact that defendant cooked crack cocaine for sale by other members of the conspiracy enabled the trial court to hold him responsible for it. A conspirator is responsible for any quantity distributed by the conspiracy that was reasonably foreseeable to the conspirator. U.S. v. Joiner, 183 F.3d 635 (7th Cir. 1999).
7th Circuit says 15-50 kilograms was foreseeable given conspiracy involved 300-400 kilograms. (275) Defendant stipulated that the $30,000 he was carrying when he was arrested at the airport was enough to purchase two kilos of cocaine. The judge extrapolated from the figure, and concluded that given defendant’s 3 ½ to five-year participation in the conspiracy, he could reasonably have foreseen the distribution of 15-50 kilograms of cocaine. Defendant argued that anything more than five kilograms was not warranted given his minor role in the drug conspiracy. The Seventh Circuit found no error. Defendant did not dispute the PSR’s finding that the conspiracy was responsible for the importation and distribution of 300-400 kilograms of powder cocaine. Given defendant’s involvement in the conspiracy, 15-50 kilograms of this total was reasonably foreseeable to him. U.S. v. Coleman, 179 F.3d 1056 (7th Cir. 1999).
7th Circuit holds courier accountable for full amount of cocaine he transported. (275) Patel paid defendant $15,000 to transport four large suitcases from Las Vegas to Chicago. Defendant met Patel in Chicago at his hotel. Defendant observed Patel unlock one of the four suitcases and remove six kilograms of cocaine. Defendant and Patel then drove to the house of a DEA informant who had agreed to purchase five kilograms. Police found 34 additional kilograms of cocaine inside the suitcases left in the hotel room. Defendant claimed that he did not know that the three unopened suitcases contained cocaine. The Seventh Circuit held that defendant was accountable for all 40 kilograms of cocaine because of his direct participation in the drug conspiracy. Furthermore, the distribution of 40 kilograms was a reasonably foreseeable result of the conspiracy. Even if defendant did not initially know that the suitcases he transported contained cocaine, he certainly knew after Patel opened the first bag. By leaving the remaining suitcases in his hotel room and involving himself in the distribution of the first six kilograms, defendant demonstrated a “substantial commitment” to the distribution of the entire shipment. U.S. v. Lezine, 166 F.3d 895 (7th Cir. 1999).
7th Circuit says attorney’s failure to challenge drug quantity was not ineffective assistance. (275) In a § 2255 petition, defendant claimed he was denied effective assistance of counsel because his attorney failed to object to the PSR’s finding that he was responsible for the entire quantity of cocaine distributed during the course of the conspiracy. The Seventh Circuit found no ineffective assistance. A defendant is responsible for the acts of his co-conspirators so long as those acts were reasonably foreseeable and were in furtherance of the conspiracy. The distribution of between 15 and 50 kilograms of cocaine was foreseeable because it was in furtherance of defendant’s role as a leader in the drug trafficking conspiracy. Recorded conversations between defendant and a co-conspirator demonstrated that defendant was actively involved in the conspiracy’s leadership since the earliest days of the group’s drug dealing. Thus, the sale of several kilos of cocaine by other members of the conspiracy was reasonably foreseeable to him. Gray-Bey v. U.S., 156 F.3d 733 (7th Cir. 1998).
7th Circuit holds defendant accountable for all drugs even though he only received 1/3 of total. (275) The district court attributed 11.09 kilograms of methamphetamine to defendant based on the estimates of witnesses. The Seventh Circuit found no error in the court’s reliance on drug quantity estimates. The court relied on evidence of transactions only in which defendant was personally involved. Also, because a conspirator is accountable for transactions that he could reasonably foresee, the court did not err in crediting the total amount of meth involved in transactions even though defendant received only one third of the total. Defendant knew of the three-way split. U.S. v. McEntire, 153 F.3d 424 (7th Cir. 1998).
7th Circuit says defendant need not be charged with conspiracy to be accountable for conspiracy’s acts. (275) Defendants were involved in a conspiracy that distributed large quantities of heroin. The Seventh Circuit upheld the district court’s finding that four of the defendants were responsible for the full 75.4 kilograms of heroin distributed by the conspiracy. The first defendant recorded the flow of heroin and money in a number of bookkeeping ledgers. She also oversaw the conspiracy’s money laundering operation. The second defendant was in charge of purchasing high purity heroin on a wholesale basis, and made huge buys 3 or 4 times a month. It was reasonably foreseeable to him that the high-purity heroin would be diluted and resold by the conspiracy. The third defendant was sufficiently tied to the conspiracy for its entire life span. The fourth defendant was a juvenile who was transferred to adult status under 18 U.S.C. § 5032. Although the transfer statute did not permit charging the juvenile with conspiracy, this did not preclude attributing the conspiracy’s drug sales to him. Courts can hold a defendant accountable for the conduct of a conspiracy even if he is not actually charged with conspiracy. U.S. v. Jarrett, 133 F.3d 519 (7th Cir. 1998).
7th Circuit holds defendant responsible for drugs seized abroad from woman boarding plane to U.S. (275) Airport officials in Brussels, Belgium found heroin in the lining of a carry-on bag of a woman attempting to board a flight to Chicago. The woman had been traveling to Chicago with defendant and another man. Customs officers in Chicago found more heroin in defendant’s garment bag. Defendant argued that it was improper to attribute to him the drugs seized from the woman in Belgium because a drug transaction that occurs outside the U.S. is not a crime against the U.S. The Seventh Circuit held that defendant was responsible for the drugs seized in Belgium because they were destined for distribution in the U.S. The woman’s actions were part of the same scheme to import heroin into the U.S. It was a mere fortuity that the woman was arrested in Belgium and defendant was arrested in Chicago. U.S. v. Farouil, 124 F.3d 838 (7th Cir. 1997).
7th Circuit uses drug quantity amounts government proved at trial of co-conspirators. (275) Defendant pled guilty without a plea agreement to drug charges. His co-conspirators were tried and convicted. The district court sentenced defendant based on the marijuana quantities the government proved at the trial of his co-conspirators. Defendant challenged the relevant conduct attributed to him because he was not allowed to cross-examine the witnesses against him. The Seventh Circuit held that defendant was properly held accountable for the drugs distributed by his co-conspirators, since the quantity was reasonably foreseeable to him. U.S. v. Lindsey, 123 F.3d 978 (7th Cir. 1997).
7th Circuit rules defendant who had close relationship with leader could foresee drug quantities. (275) Defendant was convicted of a conspiracy to distribute marijuana. He argued that the district court attributed amounts of marijuana to him without specifically linking him to the drug. The Seventh Circuit found no error. The district court found that defendant was an integral part of the conspiracy, so that he was at a much higher level and enjoyed a closer relationship with the leader than most of the others. Thus, reasonable estimates of marijuana foreseeably distributed by other members of the conspiracy were attributable to defendant as relevant conduct. U.S. v. Lindsey, 123 F.3d 978 (7th Cir. 1997).
7th Circuit affirms drug quantity determinations. (275) Defendant argued the court erred in attributing various quantities of cocaine to him for sentencing purposes. The Seventh Circuit found no error. In one instance, defendant claimed that because a co-conspirator testified that he only saw defendant in possession of three kilos during the transaction giving rise to counts 59-61, he should only have been held accountable for that amount for sentencing. However, in a recorded phone call to another conspirator, defendant said he had received 20 kilos during that transaction. The question of how to resolve the conflicting evidence was for the trial judge. Defendant was also properly held accountable for the 20 kilos involved in count 62, even though only 10 of the 20 kilos were delivered to him. Defendant was responsible for all amounts in the conspiracy that were reasonably foreseeable to him. He was also properly held accountable for the entire 100 kilograms involved in a reverse buy involving a co-conspirator. Defendant allowed the co-conspirator to use his “load” car knowing that it would be used to transport the cocaine. Thus, he directly aided and abetted that transaction, and was accountable for the drugs involved in it. U.S. v. Magana, 118 F.3d 1173 (7th Cir. 1997).
7th Circuit affirms conspirators’ sentence even though court never discussed foreseeability. (275) Defendants were convicted of a conspiracy to distribute crack cocaine. They contended that the district court failed to state specific reasons why each defendant was being held responsible for more than 1.5 kilograms of crack. The Seventh Circuit affirmed even though the court never mentioned foreseeability. Even when a district court makes “generic” findings, an appellate court will affirm unless the defendant puts forth “meritorious arguments for remanding and resentencing.” Here, upon review of the record, the appellate court could come up with reasons why each defendant was responsible for 1.5 kilograms. Therefore, the appellate court could affirm without sending the case back for resentencing. U.S. v. Lewis, 117 F.3d 980 (7th Cir. 1997).
7th Circuit finds court made sufficient inquiry into scope of joint criminal activity. (275) The district court held defendant accountable for the entire 47 kilograms of heroin distributed by his conspiracy. The Seventh Circuit held that the district court made the requisite inquiry into the scope of defendant’s joint criminal activity and the quantity of drugs foreseeability to defendant. The district court said it had reviewed all of the testimony, exhibits, arguments of counsel and had considered the credibility of witnesses. It further found that although not a leader, defendant was very heavily involved in every phase of the drug trafficking organization. Defendant picked up drugs from sources and knew when key deliveries were made. Thus, defendant was a “knowledgeable coconspirator with respect to the scope of activities.” The court did not blindly announce its conclusion, but explained its reasoning with specific reference to the evidence. The record supported the court’s determination. U.S. v. Edwards, 115 F.3d 1322 (7th Cir. 1997).
7th Circuit finds defendant could foresee extent of drug and money laundering conspiracies. (275) Defendant was the leader of a drug and money laundering conspiracy. The Seventh Circuit upheld the court’s finding that defendant could foresee that the conspiracy laundered in excess of $600,000, and that it distributed more than 400 kilograms of marijuana. Although defendant only personally laundered about $87,000, he was involved in the drug and money laundering conspiracy from “top to bottom.” In additional to his own participation in receiving money orders and packaging and delivering substantial quantities of drugs, he transported other individuals to the airlines for the purpose of transporting drugs and to the Western Union offices for the purpose of picking up wire transfers. The extent of the money laundering conspiracy was reasonably foreseeable to defendant. U.S. v. House, 110 F.3d 1281 (7th Cir. 1997).
7th Circuit holds defendant responsible for 1.5 kilograms even though he was in jail during part of conspiracy. (275) The district court held defendant accountable for between 1.5 and 5 kilograms of cocaine. Defendant argued this was improper because he was only a street-level dealer and was incarcerated on state charges for significant periods of the time over the life of the conspiracy. The Seventh Circuit affirmed. Defendant made sales of cocaine that he obtained from other members of the conspiracy throughout the conspiracy’s duration. Although defendant was involuntarily absent at certain times during the conspiracy, he was quick to resume his participation when he was free. Even if the court set aside sales made by the conspiracy during times that defendant was in custody, the estimate could be affirmed given the large volume of sales involved in the overall conspiracy and the frequency of defendant’s own sales. U.S. v. Carraway, 108 F.3d 745 (7th Cir. 1997).
7th Circuit affirms drug quantity where defendant sold cocaine to many people. (275) The district court found defendant responsible for between 1.5 and 5 kilograms of crack cocaine. The Seventh Circuit found this estimate conservative. Defendant sold cocaine to large numbers of people. One co-conspirator estimated that he witnessed sales to 100 different individuals, and another described defendant’s residence as a “regular rock house” where crack was available at virtually any hour of the day or night. One supplier alone sold cocaine to defendant an average of three times per day. Defendant had multiple suppliers. As a frequent purchaser of cocaine for resale from more than one of his co-conspirators, defendant without doubt would have foreseen that the conspiracy involved cocaine in excess of a mere 1.5 kilograms. U.S. v. Carraway, 108 F.3d 745 (7th Cir. 1997).
7th Circuit holds defendant accountable for foreseeable drugs in conspiracy. (275) Defendant was convicted of conspiring to possess with intent to distribute more than five kilograms of cocaine. He argued that the record did not show he was responsible for as much as five kilograms. The Seventh Circuit upheld the court’s determination that defendant was responsible for five kilograms of cocaine. Because this was a conspiracy, defendant was responsible for all amounts that were reasonably foreseeable to him. U.S. v. Hightower, 96 F.3d 211 (7th Cir. 1996).
7th Circuit says defendant who made single buy was not responsible for full amount of drugs. (275) Defendant had the misfortune of calling a drug dealer to arrange a pickup of previously-ordered marijuana while police were executing a search warrant at the dealer’s home. He was arrested after arriving at the home and attempting to purchase a garbage bag filled with marijuana. Although defendant’s sole involvement with the conspiracy was this single marijuana purchase, the district court sentenced him for the full 40‑50 kilograms of marijuana involved in the conspiracy. The Seventh Circuit held it was error to sentence him for all the marijuana in the conspiracy. Although defendant might have foreseen that the dealer had a large quantity of marijuana, foreseeability is not enough to establish liability for the acts of co‑conspirators. To be considered relevant conduct, such acts must be in furtherance of “jointly undertaken criminal activity.” The evidence did not show that defendant was involved beyond the single purchase. U.S. v. McDuffy, 90 F.3d 233 (7th Cir. 1996).
7th Circuit upholds reliance on co‑conspirator’s testimony. (275) The district court held defendant accountable for 1.5 kilograms of crack. Defendant argued that the conspiracy did not distribute this amount after his involvement. The Seventh Circuit affirmed, since one conspirator testified that he alone had distributed two kilograms of crack he obtained from defendant. Defendant did not attempt to explain how the court’s reliance on this testimony was erroneous. U.S. v. Thomas, 86 F.3d 647 (7th Cir. 1996).
7th Circuit says inclusion of drug transaction was harmless error. (275) Defendant argued that the court improperly considered a February 1992 drug transaction which was outside the scope of a charged conspiracy that ended in January 1992. The Seventh Circuit held that any error in considering the February transaction was harmless. The court’s relevant conduct finding could be construed as relying solely on the fact that both the conspiracy and the February transaction involved drugs. However, additional evidence would easily support a relevant conduct finding–the February transaction involved a common accomplice, a common purpose, and a common modus operandi. The transaction took place in close temporal proximity to the sales included in the charged conspiracy. Moreover, defendant’s base offense level would not be affected by the exclusion of the drugs involved in the February transaction. U.S. v. Crockett, 82 F.3d 722 (7th Cir. 1996).
7th Circuit relies on co-conspirator information to determine drug quantity. (275) Defendant argued that the district court erred in relying on the uncorroborated testimony of a co-conspirator to determine that the conspirators were responsible for one kilogram of cocaine. The Seventh Circuit found no error since defendant presented no evidence to substantiate his claim that he was merely an agent in a four-ounce cocaine deal. Defendant’s presentence report clearly indicated that the conspirator invited defendant to participate in a one kilogram cocaine transaction. Moreover, defendant later called the conspirator to inform him that he had found other investors who wanted to participate. The district court found this information reliable, and attributed the entire kilogram to defendant. A second defendant was also responsible for the entire kilogram. His conversation with police on the night of his arrest confirmed that he knew the overall deal was for one kilogram. At sentencing, defendant’s only evidence to the contrary was a self-serving affidavit. U.S. v. Lanterman, 76 F.3d 158 (7th Cir. 1996).
7th Circuit requires evidentiary hearing on ineffective assistance claim. (275) In a § 2255 motion, defendant claimed his attorney’s failure to object to the amount of drugs attributed to him at sentencing was ineffective assistance. The Seventh Circuit held that the district court erred in refusing to hold an evidentiary hearing on the claim. At sentencing, the court adopted the recommendation of the PSR that 50 kilograms of cocaine were attributable to defendant, even though the report contained no supporting data. No evidence of the amount of cocaine attributable to defendant was presented at the sentencing hearing, and the district court’s statement contained no analysis to support its conclusion. Moreover, the record did not prove that 50 kilograms were reasonably foreseeable to defendant. Although the conspiracy was involved in trafficking cocaine for two years, defendant participated only one month before he was arrested. Defendant was not responsible for any drug dealing that took place before he joined the conspiracy. Nichols v. U.S., 75 F.3d 1137 (7th Cir. 1996).
7th Circuit rejects claim that drug transaction was sham. (275) The district court held defendant accountable for 10 kilograms of cocaine that were supposed to be involved in a drug transaction. The drug transaction never occurred, and after the seller was found hiding, he returned the money to the buyer. Defendant had acted as the middleman between the buyer and the seller. He argued that the transaction was a sham, intended to defraud the buyer, and therefore he should not be held accountable for the drugs that were supposed to be sold. The Seventh Circuit disagreed, since the jury rejected his claim that he had no intention of possessing the cocaine and was only trying to defraud the buyer. Since the jury found defendant guilty of the offense, then the sentencing court’s only question was how much cocaine from the transaction was attributable to defendant. Defendant did not challenge the court’s calculation of drug quantity from the transaction. U.S. v. Berchiolly, 67 F.3d 634 (7th Cir. 1995).
7th Circuit affirms reliance on co-conspirator’s testimony to establish drug quantity. (275) Defendant was the leader of a drug conspiracy. He argued that the amount of drugs attributable to him was based on unreliable evidence and was not proven by a preponderance of the evidence. The Seventh Circuit disagreed, affirming the district court’s reliance on a co-conspirator’s testimony. Defendant’s sentence would remain the same whether attributed with the quantity of crack the trial court found (45 kilograms) or with an amount under 1.5 kilograms. The co-conspirator’s testimony, which was corroborated by defendant’s live-in girlfriend and several other witnesses, established that tremendous quantities of cocaine were distributed through defendant’s network of drug runners. The testimony also indicated that a large amount of the cocaine was in its base form—crack. U.S. v. Claiborne, 62 F.3d 897 (7th Cir. 1995).
7th Circuit holds that court’s “generic” foreseeability finding was supported by the evidence. (275) Defendant challenged the sufficiency of the reasons given to support his sentence. The Seventh Circuit found that it need address this issue since defendant did not object to the sufficiency of the court’s factual findings at the sentencing hearing. Moreover, the court’s “generic” explanation of the amount of drugs reasonably foreseeable to defendant was supported by the collected evidence. The district court considered the fact that defendant joined the conspiracy earlier than his brothers. The court went on to discuss in detail the additional evidence of defendant’s involvement in the conspiracy. The court also noted at the joint sentencing hearing that the government need not repeat the same evidence as to each defendant. A sentencing court may use evidence presented at the sentencing hearings of co-conspirators, provided the information is disclosed to defendant and he is given a reasonable opportunity to respond. Defendant’s PSR generally included the same information as that produced at the co-conspirator’s sentencing hearing. Even after all of the information was disclosed, defendant had the opportunity to object and failed to do so. U.S. v. Salinas, 62 F.3d 855 (7th Cir. 1995).
7th Circuit includes personal use drugs as part of conspiracy. (275) Defendant, a drug addict, distributed drugs to finance his own habit. The Seventh Circuit, following Precin v. U.S., 23 F.3d 1215 (7th Cir. 1994), held that drugs defendant purchased from his supplier for his own personal use were properly used in calculating his sentence. Ninth Circuit cases to the contrary were not controlling. They involved defendants charged with the offense of possession with intent to distribute. Defendant pled guilty to conspiracy, as did the defendant in Precin. All of the cocaine came from the same supplier. It was not divided into packages for distribution and packages for personal use. The amount defendant personally consumed directly affected the conspiracy–the more defendant used, the more he had to sell to bankroll his habit. The personal use cocaine influenced the size and scope of the conspiracy. U.S. v. Snook, 60 F.3d 394 (7th Cir. 1995).
7th Circuit says members in leader’s inner circle could foresee drugs distributed by conspiracy. (275) Defendants were convicted of charges related to their involvement in a cocaine distribution conspiracy. The Seventh Circuit held that defendants could foresee that the conspiracy would distribute 63.75 kilograms of cocaine, since they were members of the leader’s inner circle, and were integral parts of the scheme. Their participation was a significant factor in the success of the operation. U.S. v. Stephenson, 53 F.3d 836 (7th Cir. 1995).
7th Circuit orders court to reconsider whether street dealers could foresee scope of conspiracy. (275) Defendants were street dealers in a large cocaine conspiracy. The district court held them accountable for all of the cocaine distributed by the conspiracy because they knew they were part of a big organization and saw that there were many other fellow dealers. Thus one dealer who handled only 4-6 kilograms was held responsible for 214 kilograms of cocaine. The Seventh Circuit ordered the district court to reconsider this issue, doubting that these inner city street dealers selling $20 bags recognized that the conspiracy’s leader was also selling kilogram quantities in the suburbs. Although it might be proper to impute the whole street crew’s sales to each member, it was “highly questionable to leap from one person’s knowledge that the organization is big to knowledge of its full scope.” On remand, if the judge adheres to his conclusion that the dealers understood the extent of the operation, then he should grant the dealers a minor role reduction under § 3B1.2(b). U.S. v. Willis, 49 F.3d 1271 (7th Cir. 1995).
7th Circuit holds active participant responsible for more than 20 kilograms of cocaine. (275) Defendant was involved in a drug conspiracy involving between 50 and 150 kilograms of cocaine. The district court found that more than 20 kilograms were reasonably foreseeable to defendant. The Seventh Circuit affirmed, given that defendant was an active participant in both the transportation and distribution of cocaine, and he and another conspirator worked together in holding and distributing the drugs. U.S. v. Plescia, 48 F.3d 1452 (7th Cir. 1995).
7th Circuit holds independent drug seller responsible for cocaine distributed by conspiracy. (275) Defendant bought drugs on a regular basis from the leader of a drug conspiracy. The district court held defendant accountable for the entire volume of cocaine distributed by the larger conspiracy. The Seventh Circuit affirmed. Defendant was involved in the conspiracy from its early days, and knew the leader well. Given the leader’s willingness to describe the scope of his operation to an undercover agent, it was likely that defendant was aware of the volume of drugs the leader bought and sold. Defendant’s frequent large purchases over a long time made his venture dependent on the success of the larger operation. There was no divergence between the defendant’s aims and those of the conspiracy–they both sought to get the same drug into the hands of users on the street. U.S. v. Plescia, 48 F.3d 1452 (7th Cir. 1995).
7th Circuit says financier could foresee volume of drugs in conspiracy. (275) Defendant argued that since he did not enter a drug conspiracy until 1988, he should not be held accountable for the entire volume of drugs handled by the conspiracy. The Seventh Circuit did not address this question, since more than 50 kilograms of cocaine (the amount for which defendant was held responsible) was involved in the conspiracy after he joined. Different couriers made more than 10 trips to Florida to purchase cocaine after defendant joined the conspiracy. Since one courier testified that he never picked up less than five kilograms per trip, it was reasonable to infer that these different conspirators picked up over 50 kilograms. Given defendant’s status as financier with whom the leader split the profits, this quantity was reasonably foreseeable to defendant. U.S. v. Plescia, 48 F.3d 1452 (7th Cir. 1995).
7th Circuit says findings were sufficiently specific to support drug quantity determination. (275) Defendant argued that the district court failed to make explicit findings as to the quantity of drugs attributable to her. The Seventh Circuit agreed that more explicit findings would have been preferable, but nonetheless concluded that the findings were sufficiently specific to constitute substantial compliance with caselaw. The court heard evidence that defendant and her boyfriend lived together and sold drugs together. In holding defendant accountable for drugs sold by her boyfriend, the court specifically referred to the fact that defendant admitted selling crack from the residence at least 100 times, and that defendant and her boyfriend admitted trafficking in cocaine over an extended period of time. At no time did defendant suggest that she played a lesser role in the operation. U.S. v. Billops, 43 F.3d 281 (7th Cir. 1994).
7th Circuit finds defendant could foresee drugs sold before he joined conspiracy. (275) Defendant argued that the district court erroneously attributed to him amounts of cocaine that his conspiracy distributed before he became involved. The 7th Circuit held that defendant was accountable for the cocaine distributed before he entered the conspiracy because such amounts were reasonably foreseeable to him. Under Circuit caselaw, past conduct can be considered reasonably foreseeable to a particular defendant if that defendant has demonstrated a substantial degree of commitment to the conspiracy’s objectives. Early in his involvement, defendant collected drug money from a dealer without delivering cocaine to him. Defendant must have known that the debt was for past drug deals. In addition, defendant’s extensive dealings with two individuals who distributed cocaine for the conspiracy showed that defendant should have been fully aware of the small amounts of cocaine the conspiracy distributed during the two months before his entry. U.S. v. Phillips, 37 F.3d 1210 (7th Cir. 1994).
7th Circuit says marijuana broker was accountable only for number of plants he could foresee. (275) Defendant brokered the sale of 700 pounds of marijuana that were grown and harvested from 12,500 plants. In its earlier opinion in this case, U.S. v. Young, 997 F.2d 1204 (7th Cir. 1993), the 7th Circuit held that to impose a mandatory minimum sentence under 21 U.S.C § 841(b), the court must determine the quantity of drugs defendant could reasonably foresee. At resentencing, a conspirator testified that one marijuana plant yielded .25 pounds of marijuana, and the court imputed knowledge of this ratio to defendant. The 7th Circuit again reversed. Defendant had no reason to know that the conspiracy involved more marijuana than the 700 pounds he brokered. Thus, he could only be held responsible for the number of marijuana plants he could reasonably foresee. Because the government failed to establish how many plants defendant could have reasonably foreseen, the district court should have sentenced defendant based on the 700 pounds he brokered. U.S. v. Young, 34 F.3d 500 (7th Cir. 1994), superseded on other grounds by guideline as stated in U.S. v. Fones, 51 F.3d 663 (7th Cir. 1995).
7th Circuit finds methamphetamine quantities foreseeable to conspirators. (275) The district court properly found the amount of drugs attributable to a group methamphetamine conspirators. The first defendant could reasonably foresee that 8.306 kilograms of methamphetamine were involved in the conspiracy. Although he did not participate in each transaction, he played a key role in the overall conspiracy as enforcer and manager of the distribution network. Two other defendants could foresee that the conspiracy would distribute 6.1236 kilograms from August 1988 until the end of the conspiracy. One defendant was a “trusted lieutenant” in the distribution operation, and knew about the manufacturing activities. The other defendant was in the leader’s “inner circle,” and knew about her efforts to obtain methamphetamine, her difficulty in finding a lab site, and the conspiracy’s manufacturing activities. U.S. v. Zarnes, 33 F.3d 1454 (7th Cir. 1994).
7th Circuit agrees that defendants could foresee all drugs distributed by conspiracy during their participation. (275) Defendants were members of a large-scale heroin distribution ring. One defendant was a Chicago police officer and the mother of the conspiracy’s ringleader. She laundered money and provided the ring with information about police activities. The other defendant was a telephone operator who would direct callers to the current location of the ring’s street teams. The 7th Circuit agreed that defendants were accountable for all the heroin distributed by the conspiracy during their participation. Both defendants were aware of the broader network, and foresaw the amount of heroin sold—the first defendant for four years, the second defendant for eight weeks. The first defendant was accountable for 208 kilograms of heroin. To reduce her offense level, she would have had to subtract at least 108 kilograms from the quantity calculation. The second defendant admitted knowing the nature of the organization. She received 40 calls per hour, and worked a seven to eight hour shift. It was reasonable to conclude that defendant could have foreseen at least three kilograms of heroin passing through the organization during her eight week tenure. U.S. v. Wesson, 33 F.3d 788 (7th Cir. 1994).
7th Circuit agrees that primary supplier could foresee 50 to 150 kilograms of cocaine. (275) Defendant argued that the district court failed to make an express finding that 50 to 150 kilograms of cocaine was reasonably foreseeable to him. The 7th Circuit found that the court did make such a finding, and that the finding was supported by the evidence. It was of “no consequence” that the district court did not expressly refer to particular witnesses’ testimony in making the finding. The court found that the conspiracy had involved 70 kilograms of cocaine in 1989 and 90 kilograms in 1990. Defendant was the primary supplier of cocaine during the spring, summer and fall of 1989 and during part of 1990. U.S. v. Testa, 33 F.3d 747 (7th Cir. 1994).
7th Circuit remands for specific drug quantity findings. (275) Defendant was convicted of drugs and firearms charges. The government conceded that the district court’s finding were not sufficient to support the court’s sentencing calculations under the guidelines. The 7th Circuit agreed and remanded for specific findings as to the relevant quantity of drugs that were attributable to defendant. U.S. v. Perez, 28 F.3d 673 (7th Cir. 1994).
7th Circuit agrees that full scope of conspiracy was foreseeable to defendant. (275) Defendant challenged the district court’s finding that his offense involved more than 15 kilograms of crack cocaine. The 7th Circuit affirmed, based on testimony of three co-conspirators. One conspirator testified that defendant lived in her apartment for eight months, and that during this time, the distribution operation generated $10,000 a day or more. A second conspirator testified that one-sixteenth of an ounce of crack cocaine brought between $80 and $100. A third conspirator testified that defendant was present at cocaine transactions between him and the conspiracy’s leader involving amounts ranging from sixteenths of an ounce to full ounces. This conspirator also testified that defendant was the leader’s “favorite” distributor. U.S. v. Smith, 26 F.3d 739 (7th Cir. 1994).
7th Circuit finds that kingpin’s girlfriend was aware of scope of conspiracy. (275) The 7th Circuit held defendant accountable for all 15 kilograms of crack cocaine that passed through the drug conspiracy in which she was involved. Defendant was not only the girlfriend of the kingpin of the conspiracy, but she was also a distributor who worked closely with him and others. She sold drugs and stored them in her apartment. Defendant was so deeply involved and familiar with a closely knit conspiracy that her knowledge of its scope and agreement to participate fully could be inferred. U.S. v. Smith, 26 F.3d 739 (7th Cir. 1994).
7th Circuit reverses finding that defendant knew about 15 kilogram deal. (275) The district court found that the conspiracy involved amounts in excess of 15 kilograms of crack, and that this quantity was reasonably foreseeable to defendant. The 7th Circuit reversed, holding this factual finding was clearly erroneous. The judge found that defendant had first-hand knowledge of his brother’s attempt to purchase 15 kilograms of cocaine from a government informant. However, the informant who identified voices on the taped conversations about the 15-kilogram deal never once mentioned defendant. The judge was apparently confused because defendant’s voice appeared on another tape, involving a much smaller transaction. There was no other evidence connecting defendant to the 15-kilogram deal. All of the other evidence suggested that defendant was his brother’s errand boy and a user with a limited knowledge of the cocaine business. U.S. v. Smith, 26 F.3d 739 (7th Cir. 1994).
7th Circuit says defendant need not foresee quantity of drugs with which he was directly involved. (275) A group of conspirators arranged to purchase 50 kilograms of cocaine from a DEA agent. Defendant was sent on behalf of the conspirators to view the cocaine. The DEA agent had been advised only to show defendant two kilograms, because he would “freak” if he knew the true quantity of cocaine involved. Defendant argued that he could only be held accountable for the quantity of drugs that was reasonably foreseeable to him. The 7th Circuit held that a defendant is accountable for the full quantity of drugs he is directly involved with, regardless of whether he can reasonably foresee the quantity. The critical distinction under § 1B1.3(a)(1) is between direct and remote involvement in an illegal activity. Only remote involvement will trigger a reasonable foreseeability inquiry. Defendant played a direct role in the conspirators’ attempt to obtain and distribute a large quantity of cocaine. He was responsible for all the cocaine involved in the offense. U.S. v. Corral-Ibarra, 25 F.3d 430 (7th Cir. 1994).
7th Circuit holds defendant accountable for cocaine distributed by conspirator one step above in distribution network. (275) Defendant was one step below Strauser in the cocaine distribution network. He bought cocaine from Strauser for distribution to his clients and occasionally supplied cocaine to Strauser when Strauser had difficulty obtaining it from his supplier. At other times, defendant allowed Strauser to store cocaine at defendant’s house, assisted Strauser in packaging and selling cocaine, and fronted Strauser money for the purchase of drugs. The 7th Circuit held that defendant was accountable for the cocaine distributed by Strauser. The district court’s conclusion that defendant was not simply a purchaser of cocaine from Strauser but instead assisted Strauser in Strauser’s overall effort to distribute cocaine was well supported by the record. U.S. v. Strauser, 21 F.3d 194 (7th Cir. 1994).
7th Circuit holds that defendant could foresee all of supplier’s distribution activities. (275) Defendant admitted being in a longtime conspiracy with Karr to distribute cocaine. Defendant was Karr’s primary distributor. Defendant argued that he should not be held responsible for the cocaine Karr distributed, since his conspiracy was limited in scope and he could not reasonable foresee the large quantity of cocaine for which he was sentenced. The 7th Circuit affirmed. Defendant’s PSR verified defendant’s role in the larger conspiracy with Karr and his associates. On one occasion, defendant helped Karr collect on drug debts to help pay for cocaine. After police discovered cocaine in a car registered to defendant, defendant and Karr fled the area together and sought help from Karr’s supplier. Additionally, the facts demonstrated that defendant assisted or offered assistance to Karr to maintain Karr’s cocaine supply and thereby maintain Karr’s distribution network, which included defendant and others. U.S. v. Strauser, 21 F.3d 194 (7th Cir. 1994).
7th Circuit finds failed 10-kilogram purchase was part of conspiratorial agreement. (275) The district court found defendant responsible for in excess of 15 kilograms of cocaine: the two to three and one-half kilograms he admitted, the 10 kilograms he and a co-conspirator attempted to purchase, and the quantities involved in defendant’s rerocking activities. The 7th Circuit affirmed, ruling that the attempted 10-kilogram purchase was part of the conspiratorial agreement. One evening, defendant and the co-conspirator drove to a location to purchase 10 kilograms of cocaine. The would-be seller discussed the details of the sale, and then attempted to abscond with the money. Although they were unsuccessful in purchasing the cocaine, defendant and the co-conspirator did recover the cash. The district court did not err in concluding that defendant was sufficiently involved to bring the 10 kilograms within the scope of the conspiratorial agreement. U.S. v. Kozinski, 16 F.3d 795 (7th Cir. 1994).
7th Circuit says defendant was sentenced for drugs with which he was directly involved. (275) Defendant argued that the district court erroneously included as relevant conduct drug quantities attributable to the conspiracy as a whole without making a finding that the conspiratorial agreement was broad enough to encompass those amounts. The 7th Circuit noted that such a finding was not necessary. The district court’s quantity determination was not based on derivative liability, but on amounts with which defendant was directly responsible. The scope of the conspiratorial agreement was therefore irrelevant to the court’s finding. U.S. v. Paters, 16 F.3d 188 (7th Cir. 1994) .
7th Circuit says conspirators are liable for total quantity of drugs dealt by conspiracy. (275) Defendant argued that the amount of drugs attributable to him should be limited to the two ounces attributable to his distribution convictions. The 7th Circuit rejected this. Defendant’s conspiracy conviction was supported by the evidence, thus it was proper for the district court to include the entire amount involved in the conspiracy in calculating defendant’s base offense level. U.S. v. Cabello, 16 F.3d 179 (7th Cir. 1994).
7th Circuit holds defendant accountable for all the cocaine. (275) Defendant was involved in the attempted purchase of 10 kilograms of cocaine from an undercover agent. He contended that his involvement was limited to trading two kilograms of cocaine for his promise to murder a suspected informant. The 7th Circuit rejected this characterization, finding defendant was “an active player” in the 10-kilogram deal. He participated at a meeting where the 10-kilogram purchase was negotiated. He called the undercover agent later to confirm the deal. He accompanied his co-conspirator to the parking lot to obtain the remaining eight kilograms from the agent’s car, and attempted to obtain control of the entire 10 kilograms. His special responsibility to provide one aspect of the consideration — the murder — did not negate his obvious participation in the scheme generally. U.S. v. Cotts, 14 F.3d 300 (7th Cir. 1994).
7th Circuit holds defendant responsible for drug transaction in which his cars were used as collateral. (275) Defendant argued that he was not responsible for a transaction between his co-conspirators and an undercover agent involving 10 kilograms of cocaine. The 7th Circuit rejected this claim, finding not only that defendant could foresee that his cohorts would attempt to purchase the cocaine, but that defendant was probably directly involved in the transaction. He had a direct stake in the transaction, since titles to his cars were used as collateral. He also brought his associates and the agent together to negotiate the deal. This and his continuing communications with his cohorts strongly supported an inference that he was involved in the 10-kilogram transaction. U.S. v. Cotts, 14 F.3d 300 (7th Cir. 1994).
7th Circuit affirms that drug conspiracy and drug delivery were part of a common scheme. (275) The 7th Circuit upheld the district court’s consideration of a four kilogram drug delivery in a drug conspirator’s sentence. The district court found that the drug transaction and the drug conspiracy were part of a common scheme or plan. The court considered “precisely the right factors” in making this determination: the presence of similar parties, the temporal relationship and the geographical relationship. U.S. v. Rivera, 6 F.3d 431 (7th Cir. 1993).
7th Circuit remands because district court did not make specific findings to support foreseeability. (275) Although defendant’s role in a drug conspiracy changed in 1986, the district court held him responsible for all the drugs distributed throughout the course of the conspiracy. The 7th Circuit remanded because the court failed to make specific findings to support its conclusion that these drugs were reasonably foreseeable to defendant. The court may have erroneously thought that the mere fact that defendant was charged with being a member of the conspiracy for the entire period was a sufficient basis for finding him responsible for the entire quantity handled by the conspiracy. U.S. v. DePriest, 6 F.3d 1201 (7th Cir. 1993).
7th Circuit finds court made individualized inquiry into foreseeability of conspiracy’s drugs. (275) The 7th Circuit affirmed the district court’s determination that defendant was responsible for all the cocaine distributed by the conspiracy. Under application note 1 to section 1B1.3, a defendant is “otherwise accountable” for the conduct of others in furtherance of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant. Reasonable foreseeability refers to the scope of the agreement, not merely to the drugs he may have known about. Evidence showed that defendant was a long-time “trusted worker.” His involvement began well before the first transaction for which he was held accountable. He rented the stash apartment for the conspiracy and the 120 kilogram figure used was conservative, given the testimony of other conspirators. Contrary to defendant’s claim, the district court conducted the kind of individualized inquiry described in U.S. v. Edwards, 945 F.2d 1387 (7th Cir. 1991). U.S. v. Flores, 5 F.3d 1070 (7th Cir. 1993).
7th Circuit affirms that defendant was responsible for over 100 kilograms of marijuana. (275) The 7th Circuit affirmed that defendant was responsible for more than 100 kilograms of marijuana. The district court only attributed to defendant the marijuana shipped from the date defendant began to participate in the conspiracy. The evidence linked defendant to a 170-pound shipment, and the district court stated that it believed that defendant could have reasonably foreseen a total of 320 pounds of marijuana. Defendant’s argument that his financial condition barred him from making such purchases was “disingenuous,” since he was not required to pay for the marijuana up front, but rather sold the marijuana on consignment. U.S. v. Severson, 3 F.3d 1005 (7th Cir. 1993).
7th Circuit finds increasingly large shipments supported forseeability of 170-pound marijuana load. (275) A conspirator was arrested transporting 170 pounds of marijuana to distributors in Wisconsin, including defendant. The conspirator testified that she had made six previous trips, and those six runs involved increasing marijuana quantities, ranging from 20 to 80 pounds. The amounts increased because one of the distributors indicated he could distribute more marijuana than the amount she had been providing. The 7th Circuit held that it was reasonably foreseeable to defendant that a large shipment might follow because the conspirator was transporting increasingly larger quantities of marijuana to the distributors. In addition, the judge believed one distributor’s testimony that he had discussed the 170-pound shipment with defendant. U.S. v. Severson, 3 F.3d 1005 (7th Cir. 1993).
7th Circuit says defendant who did not withdraw from conspiracy was responsible for entire 13.4 kilograms. (275) The 7th Circuit rejected defendant’s claim that he was not responsible for the entire 13.4 kilograms of cocaine distributed by his conspiracy because he had withdrawn from it. Defendant did not take the necessary steps required to withdraw. Although defendant changed roles in the criminal organization and began to buy drugs from a co-conspirator rather than selling cocaine to him, this did not transform him from a co-conspirator to a mere buyer. U.S. v. Pitz, 2 F.3d 723 (7th Cir. 1993).
7th Circuit remands to determine whether defendant could have “foreseen” past conduct of co-conspirators. (275) Defendant argued that he should not be held accountable for drug quantities distributed by a conspiracy prior to his entry into it. The 7th Circuit remanded since the district judge made no finding that defendant could have “foreseen” the past conduct of his co-conspirators. If a defendant agrees with other co-conspirators to an entire conspiracy, including past acts, he or she may be held responsible for those acts. However, the government must show that the defendant “was aware, or should have been aware, of the amount involved in earlier transactions,” and the sentencing judge must specifically find that the past conduct was reasonably foreseeable. U.S. v. Wagner, 996 F.2d 906 (7th Cir. 1993).
7th Circuit holds defendant accountable for drugs distributed by conspiracy after he moved to another state. (275) The 7th Circuit affirmed that defendant was accountable for drugs distributed by an Illinois conspiracy after he moved to Arkansas. There was evidence that after the move defendant continued to visit a co-conspirator in Illinois, and that he had set the organization up with a new supplier in Chicago. Moreover, defendant made no attempt to end the organization’s activities prior to the indictment. At the time defendant entered the conspiracy, he could foresee that the entire conspiracy would reasonably encompass more than 15 kilograms of cocaine. U.S. v. Wagner, 996 F.2d 906 (7th Cir. 1993).
7th Circuit includes nonexistent but negotiated amounts in drug quantity. (275) Defendant’s co-conspirator negotiated for the purchase of 736 pounds of marijuana from a government informant. Defendant argued that the amount could not be included in determining his drug quantity because the marijuana was “imaginary” and hence posed no threat to the public. The 7th Circuit disagreed, noting that the co-conspirator had believed the drugs would be delivered. Defendant was sufficiently aware of the scheme to have his co-defendant’s negotiations imputed to him. U.S. v. Crawford, 991 F.2d 1328 (7th Cir. 1993).
7th Circuit rejects need for conspiracy count in calculating relevant conduct. (275) In calculating defendant’s drug quantity, the district court included marijuana that defendant’s co-conspirator was negotiating to purchase. Defendant argued that this was improper because he had not been charged with conspiracy. The 7th Circuit rejected the argument, noting that section 1B1.3 does not include such a requirement. U.S. v. Crawford, 991 F.2d 1328 (7th Cir. 1993).
7th Circuit says active participant could foresee additional quantities handled by co-conspirators. (275) The 7th Circuit rejected defendant’s claim that he was only responsible for the 358 pounds of marijuana he personally handled. Defendant pled guilty to a conspiracy commencing in 1986 and thus, could be held responsible for all transactions from 1986 through 1988 that were reasonably foreseeable to him. The trial court found that defendant had only peripheral participation in the conspiracy in 1986, and following a two-year hiatus, he renewed his drug activity in 1988. Thus, the district court’s decision not to hold defendant accountable for all 18,500 pounds distributed by the conspiracy during this period was reasonable. However, after defendant rejoined the conspiracy, he was an active participant, and the finding that he was responsible for 3000 to 4000 pounds of marijuana was not clearly erroneous. U.S. v. Tolson, 988 F.2d 1494 (7th Cir. 1993).
7th Circuit remands for individualized foreseeability determinations for conspirators. (275) Thirteen defendants were convicted of conspiracy and other drug-related offenses. The 7th Circuit remanded for resentencing because the district court failed, with respect to four conspirators, to make specific findings about the scope of their agreement and the reasonable foreseeability of the quantity of drugs involved. Each conspirator is responsible only for the amount of cocaine he actually distributed plus the amount involved in transactions reasonably foreseeable to him. Thus, it is imperative to determine the scope of the conspiratorial agreement each conspirator joined. The sentencing judge must state why each individual defendant was aware of or reasonably foresaw the particular amount of drugs for which he will be held accountable, with reference to supportive evidence. The sentences of three other conspirators were affirmed because they waived the issue of the proper drug quantity determination by failing to object at sentencing. U.S. v. Goines, 988 F.2d 750 (7th Cir. 1993).
7th Circuit finds defendant responsible for entire 681 kilograms involved in conspiracy. (275) The 7th Circuit affirmed that defendant was responsible for the entire 681 kilograms of marijuana involved in a conspiracy. In his plea agreement, defendant admitted that the conspiracy involved 400 to 700 kilograms of marijuana. The district court found that defendant was a leader of the conspiracy, and defendant did not object to that finding on appeal. One of the co-conspirators testified that defendant was a full partner with him in the drug smuggling operation out of Mexico. He was tied to both ends of the conspiracy, from the smuggling from Mexico to the actual distribution in United States. It was reasonable to find that defendant knew of or reasonably should have known of the extent of the conspiracy he helped lead. U.S. v. Price, 988 F.2d 712 (7th Cir. 1993).
7th Circuit upholds refusal to give jury instruction on accountability of conspirators. (275) The 7th Circuit upheld the district court’s refusal to give an instruction directing the jury to determine the quantity of cocaine distributed by each defendant or by co-conspirators in furtherance of the conspiracy that was known or reasonably foreseeable to each defendant. The amount of narcotics for which a given defendant is responsible is a factual issue to be determined by the judge, not the jury. The judge used a proper standard of foreseeability in determining each defendant’s accountability. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993).
7th Circuit says full drug quantity was foreseeable based on participation in conspiracy. (275) The 7th Circuit affirmed the determination that defendant could have reasonably foreseen the movement of 6.5 kilograms of cocaine through his conspiracy. Defendant had a “significant and steady” participation in the conspiracy. He personally distributed 249.89 grams of cocaine in June 1988. He was also with another co-conspirator less than one hour before the co-conspirator sold a quarter kilogram of cocaine to another co-conspirator. Defendant admitted he had cocaine dealings with another co-conspirator, who, according to one witness, received multiple kilogram shipments of cocaine from Florida and was a notorious supplier. Moreover, there was evidence that defendant was a significant participant through the final stages of the conspiracy. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993).
7th Circuit holds late entrant responsible for full 6.5 kilograms in cocaine conspiracy. (275) The 7th Circuit affirmed holding defendant responsible for the full 6.5 kilograms of cocaine involved in a conspiracy despite his claim that he was a late entrant. Defendant’s one proven sale of 250 grams of cocaine occurred in August 1988. But he participated in the conspiracy as early as July 1988, when he offered to give some drug business to one of the conspirators. This conspirator testified that defendant was considered to be an experienced drug dealer who was accustomed to dealing with kilo quantities of cocaine. Defendant was involved in the conspiracy’s activities through its final stages. In September 1988 he participated in a telephone call between two conspirators concerning their trip to Florida and the Bahamas. Also his name was mentioned during a drug deal in September 1988 when one conspirator was discussing drug suppliers. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993).
7th Circuit rejects foreseeability of full quantity of cocaine to a late entrant. (275) The 7th Circuit rejected the district court’s finding that defendant was accountable for the entire 6.5 kilograms of cocaine handled by his co-conspirators. He purchased one kilogram from the conspiracy in September 1988 for resale to one of his own customers, and assisted another co-conspirator in his attempt to finalize a one-half kilogram deal with another co-conspirator. Although telephone calls and photographs showed that defendant was acquainted with one of the conspirators before September 1988, there was no evidence that defendant entered the conspiracy prior to September 1988. Moreover, there was no evidence to suggest that defendant was aware of the prior activities of his co-conspirators or that, despite his late entrance, he embraced the earlier conduct. The case was remanded to determine the lesser quantity of cocaine that was reasonably foreseeable to the defendant. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993).
7th Circuit refuses to remand despite generic explanation for assigning base offense level. (275) The 7th Circuit refused to remand defendant’s case for resentencing, even though the district judge offered only a generic explanation for assigning defendant the offense level corresponding to 6.5 kilograms of cocaine. Remand is necessary only if the defendant offers a meritorious argument for remanding. Here, defendant identified no evidence to substantiate his claim that the district judge erroneously found that the distribution of 6.5 kilograms of cocaine was reasonably foreseeable to him. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993).
7th Circuit says “look-out” was not accountable for entire amount of cocaine in conspiracy. (275) The district court found that defendant was accountable for the full 6.5 kilograms of cocaine involved in a conspiracy. The 7th Circuit reversed, finding that the government’s evidence tied defendant to the conspiracy for a fixed period of time and illustrated that his commitment to the conspiracy was limited in scope. Defendant served as a “look-out” in a single 249.89 gram transaction. The degree of his participation did not raise an inference that he was aware of or involved in the conspiracy’s activities beyond the date of the transaction. U.S. v. Mojica, 984 F.2d 1426 (7th Cir. 1993).
7th Circuit remands for findings supporting drug quantity determination. (275) The presentence report said the conspiracy involved at least 50 kilograms of cocaine. Defendant objected and requested an evidentiary hearing. The district court, however, summarily adopted the conclusions in the presentence report. The 7th Circuit remanded because the district court failed to make findings supporting its conclusions and resolving defendant’s disputed issue of fact. Defendant’s sentence should reflect the kilograms involved in furtherance of the conspiracy, i.e., the amount which was known or reasonably foreseeable to the defendant. In determining the kilograms involved, the district court must give reasons, not mere conclusions. The record did not reflect that the court resolved defendant’s disputed issue of fact, and the government conceded at oral argument that the case should be remanded for a hearing to articulate the appropriate relevant conduct. U.S. v. Jackson, 983 F.2d 757 (7th Cir. 1993).
7th Circuit defers to lower court’s credibility determination in affirming drug quantity involved in conspiracy. (275) Defendant conceded that the 361.6 grams of cocaine seized the night of her arrest could be attributed to her conspiracy, but contended that the district court erred in finding a total of 576.6 grams of cocaine were involved in this conspiracy. The only evidence of this additional cocaine was the testimony of a co-conspirator, who defendant contended was not credible. The 7th Circuit upheld the district court’s quantity determination, deferring to the district court’s determination of the co-conspirator’s credibility. “[I]t is the district court’s job to assess the credibility of witnesses who testify on matters relating to sentencing. We are not ‘left with the definite and firm conviction that a mistake has been committed by the district court.’“ U.S. v. Villasenor, 977 F.2d 331 (7th Cir. 1992).
7th Circuit affirms that 1989 purchases were part of same conspiracy. (275) Defendant conceded his accountability for cocaine sales made to a confidential informant, but claimed there was insufficient evidence that the purchases he made in 1989 were part of the same scheme. He also contended these purchases were for personal use and not resale. The 7th Circuit affirmed the inclusion of the 1989 purchases in defendant’s offense level. At defendant’s sentencing, his supplier testified that from April 1989 to June 1990 he regularly sold defendant one to four ounces of cocaine per week, and that he told defendant the identity of his own supplier. Defendant stated that he used some of the drugs personally but that he sold enough to raise the money to repay his supplier. Finally, the search of defendant’s home revealed items that are normally associated with the distribution of drugs, including two digital gram scales. U.S. v. Villasenor, 977 F.2d 331 (7th Cir. 1992).
7th Circuit holds late-comer responsible for entire amount of cocaine in transaction. (275) A drug dealer received a four to five kilogram shipment of cocaine from his suppliers in Florida. Defendant became involved in the distribution of this cocaine after the dealer had difficulty in collecting his debts. Defendant argued that he was brought into the operation “late in the day” and was not aware of how much cocaine was initially shipped to the dealer. The 7th Circuit rejected this argument. The evidence demonstrated that defendant was committed to the objective of distributing the cocaine from the transaction. Defendant advised the dealer’s supplier that the dealer’s operation was in shambles because the dealer had mismanaged money, but that defendant would try to raise money to save the operation. Moreover, defendant traveled to Florida in order to meet with the suppliers to persuade them to give him more cocaine to sell so that they could be repaid. U.S. v. Centracchio, 977 F.2d 1061 (7th Cir. 1992).
7th Circuit affirms that object of conspiracy was distribution of three kilograms of cocaine. (275) The 7th Circuit affirmed calculating defendants’ base offense level based upon three kilograms of cocaine rather than the one kilogram and one ounce actually delivered by the conspirators. The district court had sufficient evidence from which to conclude that the object of the conspiracy was to distribute three kilograms of cocaine. There were numerous conversations addressing efforts to obtain three kilos of cocaine, and one defendant speculated that he could obtain the next two kilos within a few days after the one kilo delivery. The district court’s finding was also based upon defendants’ facile use of drug terminology and the ease with which they obtained the one kilogram that they actually delivered. U.S. v. Cochran, 955 F.2d 1116 (7th Cir. 1992).
7th Circuit affirms inclusion of drugs involved in larger conspiracy. (275) Although defendant was convicted of conspiracy to distribute two kilograms of cocaine, he was sentenced on the basis of 11 kilograms after the district court determined he was part of a larger conspiracy involving his two brothers and others. The 7th Circuit rejected defendant’s claim that the government failed to prove the larger conspiracy by a preponderance of the evidence. Defendant’s claim that his brothers were competitors rather than co-conspirators was unsupported by the record. There was also no merit to defendant’s claim that the government should have charged him with the larger conspiracy if it wanted to sentence him on this basis. The court found that the larger conspiracy was part of the same course of conduct as the offense of conviction under section 1B1.3(a) because the cocaine involved in the larger conspiracy would have been grouped with the two kilogram conspiracy if the larger conspiracy had been charged. U.S. v. Blas, 947 F.2d 1320 (7th Cir. 1991).
7th Circuit affirms that heroin distribution was reasonably foreseeable. (275) Defendant was charged with a conspiracy to distribute cocaine, heroin and marijuana. He eventually pled guilty only to conspiring to possess cocaine. His offense level was calculated on the basis of the full amount of drugs handled by the conspiracy, including three to ten kilograms of heroin. He contended that the heroin distribution was not reasonably foreseeable to him given his limited participation in the conspiracy. The 7th Circuit rejected the argument, ruling that the heroin distribution was reasonably foreseeable to him. He was not a peripheral co-conspirator. He had frequent contact with the central organizer of the drug distribution network. He conceded that he used code words such as “brown cars” and “white cars” in telephone conversations with the organizer in order to discuss heroin and cocaine transactions and that he was aware that the organizer used an area restaurant as the base for operations. U.S. v. Rosa, 946 F.2d 505 (7th Cir. 1991).
7th Circuit holds that conspiracy defendant is responsible only for reasonably foreseeable conduct. (275) The 7th Circuit held that the district court improperly sentenced several conspirators for the total quantity of drugs without determining whether the drugs were reasonably foreseeable to each defendant. The district judge offered a generic explanation for assigning the same offense level to each conspirator. The appellate court then determined, on a defendant-by-defendant basis, whether the defendant offered a meritorious argument for remanding their case for resentencing. The court remanded for resentencing several defendants who entered the conspiracy near its end, since they might not be accountable for the drugs involved in the earlier stages of the conspiracy. The court refused to remand two defendants who offered no reason to believe that they were involved in a narrower conspiracy. The case contains a detailed discussion of the foreseeability requirement in conspiracy cases. U.S. v. Edwards, 945 F.2d 1387 (7th Cir. 1991).
7th Circuit affirms determination of amount of conspiracy’s marijuana attributable to defendant. (275) Defendant argued that 501 kilograms of marijuana were improperly attributed to him. The weight based on quantities co-conspirators and other witnesses claimed they distributed to defendant. Defendant contended that some of the marijuana came from other sources or was not properly attributable to the conspiracy. The 7th Circuit upheld the calculation, finding that the district court carefully considered the evidence on this question, and then concluded that defendant should be held responsible for the 501 kilograms of marijuana he personally received. The district court’s conclusion “was a reasonable product of a thorough inquiry into the facts relating to the scope of [defendant’s] involvement in [this particular] distribution network.” U.S. v. Brown, 944 F.2d 1377 (7th Cir. 1991).
7th Circuit vacates because court failed to determine whether drugs in conspiracy were foreseeable to defendants. (275) At defendant’s sentencing hearing, the government asserted that defendant was “convicted beyond a reasonable doubt of being a member of this conspiracy. Just on general conspiracy theory, he is responsible for all the conduct involved in this conspiracy.” The district court apparently agreed and sentenced defendant on the basis of the total quantity of drugs attributable to the parties named in the conspiracy indictment. The 7th Circuit vacated, because the district court failed to determine what quantity of drugs involved in the conspiracy were foreseeable to defendant as required by guideline section 1B1.3. The fact that defendant was convicted of conspiracy did not establish beyond a reasonable doubt that he conspired with every other person charged in the indictment, it simply meant that he agreed with one other person to violate the drug laws. U.S. v. Thompson, 944 F.2d 1331 (7th Cir. 1991).
7th Circuit affirms that drugs handled by co-conspirator were foreseeable to defendant. (275) The 7th Circuit rejected defendant’s contention that it was improper to hold him responsible for quantities of cocaine charged to his co- conspirator. The district court did not err in finding that defendant could reasonably foresee the amount of cocaine the co-conspirator was dealing. The two had been friends for 10 years, met socially on a regular basis, and even lived together for a brief time during the conspiracy. They were arrested together for possessing cocaine in 1987. Defendant twice tried to warn the co-conspirator of the FBI’s investigation. U.S. v. Cooper, 942 F.2d 1200 (7th Cir. 1991).
7th Circuit affirms that larger drug deal was reasonably foreseeable to defendant. (275) Defendant permitted his co-conspirators to use his apartment to sell small amounts of cocaine to an undercover agent. The co-conspirators then negotiated to sell 140 grams of cocaine to the agent. Defendant was asleep when the agent arrived to view the cocaine and arrest the co-conspirators. The 7th Circuit upheld the inclusion of the 140 grams in defendant’s base offense level. Defendant knew that his co-conspirator had arranged another cocaine sale to the agent at defendant’s apartment. Defendant had met the undercover agent several times. The agent claimed to be buying the cocaine for resale, and thus it was reasonable to foresee that the agent would attempt to arrange a large-quantity purchase. One of the prior transactions involved three or four ounces, which was not significantly less than the 140 grams the co-conspirators attempted to sell to the agent. U.S. v. Scroggins, 939 F.2d 416 (7th Cir. 1991).
7th Circuit affirms that drug dealer was accountable for all drugs involved in conspiracy. (275) Defendant purchased cocaine for resale from several drug suppliers involved in a large drug conspiracy. He was often present when the conspirators divided their drug shipment into smaller packages to pass on to other distributors and he also knew many of the other dealers who were buying from the conspirators. One conspirator described defendant as a “mainstay” of his “operation,” and said that he coordinated his cocaine purchases with defendant, determining how much defendant needed before he went to his sources to obtain it. The 7th Circuit ruled that the fact that defendant was indicted separately from the other conspirators did not constitute a concession by the government that defendant was not a member of the conspiracy. It was more likely that defendant was indicted later simply because the government did not have sufficient information until the conspirators began supplying information. U.S. v. Sergio, 934 F.2d 875 (7th Cir. 1991).
7th Circuit affirms that three-kilogram sale was foreseeable to defendant. (275) Defendant agreed to help a government informant find buyers for large of amounts of cocaine that the informant claimed to have available. Defendant eventually located one such purchaser. In a recorded conversation, defendant and the informant set up a meeting for the transaction, but it was unclear from the conversation how many kilograms the purchaser was to buy from the informant. The informant brought three kilograms to the meeting, while the purchaser only brought enough cash for one kilogram. During the sales discussion between the purchaser and the informant, at which the defendant was not present, the purchaser requested the informant to “front” him the two additional kilos of cocaine. The 7th Circuit found no impropriety in sentencing defendant on the basis of three kilograms of cocaine. Defendant was convicted of conspiracy, and the district court had concluded that the sale of three kilograms to the purchaser was foreseeable. Defendant had earlier arranged a five-kilogram sale and therefore this finding was not clearly erroneous. U.S. v. Boyer, 931 F.2d 1201 (7th Cir. 1991).
7th Circuit upholds sentencing defendant for drugs for which he received no monetary compensation. (275) Defendant and the government stipulated that he possessed a total of 630 grams of cocaine during a drug conspiracy. Defendant contended it was improper to hold him responsible for 196 grams of this total because he was merely transporting these drugs to other conspirators and he received no monetary benefit for this service. The 7th Circuit termed this a “ridiculous argument.” A narcotics conspirator can be held accountable for all drugs involved in the conspiracy that the conspirator knew or should have reasonably foreseen. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit affirms that drug conspiracy involved 100 kilograms of marijuana. (275) The 7th Circuit affirmed the district court’s determination that defendants conspired to distribute over 100 kilograms of marijuana. The government submitted evidence that one of the defendants had travelled to Tucson at least 10 times within a nine-month period. Most of those trips lasted less than five days. On each occasion, this defendant carried two large suitcases. A narcotics detection dog reacted positively to both suitcases after one of these trips. Financial records revealed that this defendant spent almost $40,000 more than he could account for during the relevant period. Bank and Western Union records revealed that two defendants transferred funds totalling $64,036 to another defendant during this same period of time. That evidence, coupled with the inference that at least 30 pounds of marijuana were involved in each trip, supported the finding that the conspiracy involved an intent to distribute in excess of 100 kilograms. U.S. v. Atterson, 926 F.2d 649 (7th Cir. 1991).
7th Circuit upholds including in conspiracy drugs which defendant knew codefendant intended to sell. (275) Defendant was the source for all of the cocaine which a codefendant sold to a DEA agent, except for a single half-kilo sale. The government acknowledged that defendant was not the source of the half-kilo, and defendant was not charged with that transaction. The district court found that defendant was part of a conspiracy that included the half-kilo sale by the codefendant, and sentenced defendant on that basis. The 7th Circuit agreed. Defendant and his codefendant had negotiated for the half-kilo, but codefendant eventually bought the cocaine from another source because it was cheaper. Because defendant “knew or could reasonably have foreseen that [his codefendant] would possess and sell the half-kilo, it was proper to use the half-kilo in sentencing” defendant. U.S. v. Franco, 909 F.2d 1042 (7th Cir. 1990).
7th Circuit affirms offense level based upon total quantity of cocaine charged in indictment. (275) Defendant argued that the trial judge erred in computing his offense level based upon the entire quantity of cocaine involved in all of the offenses alleged in the seventeen-count indictment, rather than limiting its consideration to the cocaine with which he was personally involved. Relying upon its earlier decision in U.S. v. White, 888 F.2d 490 (7th Cir. 1989), the court held that it is proper for a sentencing court to aggregate the amounts of drugs from any acts that were “part of the same course of conduct or common scheme or plan as the effects of conviction.” U.S. v. Franklin, 902 F.2d 501 (7th Cir. 1990).
7th Circuit affirms finding that conspiracy involved more than 100 kilos of marijuana. (275) Defendant was sentenced at a base offense level of 26 after being found guilty of conspiracy involving 100 kilos of marijuana. Defendant argued that he was only involved with 50 kilos, the amount found in his possession at the time of his arrest. The 7th Circuit disagreed. Defendant had stipulated that if a conspiracy was found, it involved more than 100 kilos. The jury rejected defendant’s argument that he was only involved in a one time transport and found him guilty of conspiracy. Thus, the finding that the conspiracy involved more than 100 kilograms was correct. U.S. v. Garcia, 897 F.2d 1413 (7th Cir. 1990).
7th Circuit rules that relevant conduct for conspirator includes all reasonably foreseeable drug transactions. (275) Under U.S.S.G. 1B1.3, a person who acts in concert with others “whether or not charged as a conspiracy,” is accountable for “conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.” Thus, the 7th Circuit upheld the trial court’s ruling that defendant, as a member of the conspiracy for nine months, was responsible for the drug activities of his coconspirators. U.S. v. Guerrero, 894 F.2d 261 (7th Cir. 1990).
7th Circuit holds that admission that overt acts of conspiracy were reasonably foreseeable allows for aggregation of quantities of cocaine for sentencing purposes. (275) Defendant pled guilty to one count of conspiracy and admitted that he personally made a sale of cocaine as charged in overt act 3, and that all the other overt acts were reasonably foreseeable to him. The 7th Circuit held that the guilty plea was voluntary, and that it was therefore proper to aggregate the total amount of cocaine involved in the conspiracy for sentencing purposes under § 2D1.4, application note 1. Because the defendant admitted that the aggregate quantity of cocaine sold was foreseeable by him, the offense level was properly set at 26 (including a reduction for acceptance of responsibility). The admission of “reasonable foreseeability” ended the inquiry as to the proper offense level. U.S. v. Savage, 891 F.2d 145 (7th Cir. 1989).
7th Circuit upholds district court’s calculation of amount of cocaine involved in the conspiracy. (275) The district court calculated the amount of cocaine involved in the conspiracy on the defendant’s own admission to the agent that he received approximately one ounce of cocaine every three weeks from his source. The court found that the conspiracy lasted approximately three months. The 7th Circuit held that these findings were not clearly erroneous, and the district court properly considered this information in sentencing the defendant. U.S. v. Miller, 891 F.2d 1265 (7th Cir. 1989).
8th Circuit finds any error in drug quantity harmless where sentence was based on smaller quantity. (275) Defendant was convicted of methamphetamine conspiracy charges. He attacked his sentence, arguing that the district court (a) procedurally failed to determine the scope of the criminal activity that he agreed to jointly undertake and (b) erred in finding foreseeable to him the distribution of 500 grams or more of meth. However, at the government’s request, the district court sentenced defendant based on a conspiracy to distribute less than 500 grams. The Eighth Circuit held that the district court properly applied the guidelines. Defendant’s claim that the court failed to determine the scope of the criminal activity he agreed to jointly undertake was without merit. The district court considered his purchasing patterns and debt for past purchases, both indicating defendant’s commitment to the conspiracy. The district court also considered the foreseeability of particular drug-sale amounts from defendant’s vantage point. Moreover, any error in finding foreseeable the distribution of 500 grams or more of meth was harmless, because his sentence was based on less than 500 grams. U.S. v. Holmes, 751 F.3d 846 (8th Cir. 2014).
8th Circuit upholds pill estimate based on math calculation rather than direct evidence. (275) Defendant led a large-scale drug operation that distributed prescription drugs. The district court found that defendant was responsible for 15.354 kilograms of marijuana equivalent, based on a total of 16,725 pills: 7,172 pills were classified as Oxycontin pills, and 9,553 as Opana pills, based on the trend in sales of each drug that police observed during the dates of the conspiracy. Defendant argued that the district court erred by not limiting the drug quantity to the pills recovered by confidential informants during the controlled buys. The Eighth Circuit disagreed. A district court may consider “all transactions known or reasonably foreseeable to the defendant that were made in furtherance of the conspiracy.” Defendant did not allege a lack of knowledge or foreseeability with respect to any portion of the drug quantity attributed to him. The methodology used by the court was proper. It was of no consequence that the district court’s drug quantity determination was based on a mathematical calculation as opposed to direct evidence. U.S. v. Colton, 742 F.3d 345 (8th Cir. 2014).
8th Circuit includes drugs transported while defendant was incarcerated. (275) Defendant mailed parcels containing MDMA from Oakland to St. Louis. A short time later, defendant was incarcerated on an unrelated offense. While defendant was in prison, the parcels continued to be mailed, and the proceeds were shipped to defendant’s drug supplier. Shortly after defendant left prison, he made a large cash deposit into his account. At sentencing, the district court calculated defendant’s Guidelines range based in part on the MDMA that was in the parcels shipped while defendant was in prison. The Eighth Circuit held that because defendant had failed to show that he withdrew from the conspiracy while he was in prison, the district court properly included in the drug quantity, the amount shipped during defendant’s incarceration. U.S. v. Williams, 605 F.3d 556 (8th Cir. 2010).
8th Circuit holds defendant accountable for pseudoephedrine purchased by co-conspirators while he was incarcerated. (275) The evidence showed that defendant cooked methamphetamine for himself and others at multiple locations using pseudoephedrine pills provided by various individuals between 2006 and 2008. He argued for the first time on appeal that the court erred in holding him accountable for the entire amount of pseudoephedrine that he and his associates purchased between 2006 and 2008 because he was incarcerated during part of this time. The Eighth Circuit found no plain error. Although incarceration may constitute withdrawal from a conspiracy, it does not necessarily terminate an individual’s liability for the actions of a conspiracy. Here, there was no evidence that defendant affirmatively withdrew from the conspiracy, and it was reasonably foreseeable that the conspiracy would continue while he was incarcerated. U.S. v. Hodge, 594 F.3d 614 (8th Cir. 2010).
8th Circuit rejects common-law test for withdrawal from conspiracy. (275) The district court held defendant accountable for just over 16 kilograms of cocaine, the full amount involved in the conspiracy. Defendant argued that he moved away from town and ceased active participation in the drug business at the end of 2004 or the beginning of 2005, and therefore he was not accountable for the drugs peddled by the conspiracy after that time. The district court applied the common-law test for withdrawal from a conspiracy, requiring defendant to show that he made a clean breast to the authorities or communicated his withdrawal to his co-conspirators. The court made no findings regarding foreseeability of the drug amounts to defendant, apparently because the court believed that the common-law test replaced the foreseeability requirement of §3B1.1. The Eighth Circuit noted that this was legal error, and the error was not harmless because the facts could plausibly support a finding either way on the foreseeability issue. U.S. v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008).
8th Circuit says evidence was sufficient to support drug quantity calculation despite defendant’s incarceration. (275) Defendant argued that the district court and the jury erroneously attributed more drugs to him than he could have sold in the time frame provided in the indictment. He claimed it was impossible for him to have sold more than 500 grams of meth because he was incarcerated during seven months in 2000. The Eighth Circuit found no error in the drug quantity calculation. The witnesses knew of defendant’s incarceration and testified that they bought drugs either from him or from defendant’s middlemen when he was not incarcerated. In addition, defendant’s challenge was based in part on his attack against the witnesses’ credibility and their recall regarding the amount of drugs he sold to them. This credibility issue was for the jury. Despite defendant’s seven-month incarceration, the evidence provided a reasonable jury sufficient evidence to have found defendant guilty beyond a reasonable doubt. U.S. v. Collins, 340 F.3d 672 (8th Cir. 2003).
8th Circuit holds defendant accountable for drugs distributed while he was incarcerated. (275) Defendant pled guilty to methamphetamine conspiracy charges. He challenged the court’s attribution to him of 774 grams of meth sent to a co-conspirator in the fall of 2000 while defendant was incarcerated. The Eighth Circuit held that defendant was properly held accountable for the drug transaction that took place while he was incarcerated, because he remained part of the conspiracy during his incarceration. Defendant did not withdraw from the conspiracy, but continued to direct others in the shipment and sale of meth and in the collection of the drug proceeds. For example, a police search of the co-conspirator’s residence after the controlled delivery unearthed a letter from defendant sent while he was incarcerated regarding the collection of certain drug proceeds. In addition, Western Union records showed numerous wire transfers from defendant to his co-conspirators and vice versa. Thus, defendant was responsible for all reasonably foreseeable conspiratorial acts. U.S. v. Perez-Guerrero, 334 F.3d 778 (8th Cir. 2003).
8th Circuit holds defendant accountable for full amount of drugs that he tried to retrieve from storage unit. (275) Police seized 22 pounds of methamphetamine from a commercial storage unit, and then detained defendant when he came to remove its contents. Defendant argued that the district court erred in including all of the seized meth in its drug quantity calculation because that quantity was neither known to nor reasonably foreseeable to defendant. However, reasonably foreseeable is the standard for determining whether the sentencing court may consider amounts from drug transactions in which the defendant was not directly involved. Here, defendant was sent to empty a storage unit where the conspirators had hidden a large quantity of meth. He brought with him a copy of the rental agreement and a key to the padlocked unit. Defendant had significant relationships with other conspirators, including the one who rented the storage unit. Thus, it was reasonable to infer that defendant knew he would be transporting a controlled substance. In these circumstances, he was accountable for the controlled substance he intended to transport, regardless of his knowledge or lack of knowledge of the actual type or amount of that controlled substance. U.S.S.G. § 1B1.3, note 2, illustration (a)(1). Thus, the Eighth Circuit found that the district court drug quantity finding was not clearly erroneous. U.S. v. Montano-Gudino, 309 F.3d 501 (8th Cir. 2002).
8th Circuit upholds calculation of meth involved in conspiracy. (275) In finding defendant was responsible for 172.03 grams of methamphetamine mixture, the district court relied on four episodes in which defendant actually participated or in which she would have known of the transactions. First, defendant was involved in meth manufacturing at Symonds’ place. Witnesses confirmed seeing defendant with her husband on as many as eight occasions at Symonds’ house. Symonds testified that defendant’s husband usually made one or one and one-half ounces of meth when he cooked. Based on this, the court attributed 4.5 ounces, or 127.57 grams, of meth mixture to defendant. Second, the court held defendant responsible for 12.61 grams that defendant’s husband sold in a convenience store parking lot, while defendant circled the parking lot in her van. Third, the court considered testimony from a convenience store clerk that defendant accompanied her husband on a buying trip to purchase a case of ephedrine pills, a precursor ingredient for meth. The court found that this would produce about 28.35 grams of meth mixture. Finally, the court added 3.5 grams representing the meth sold from defendant’s house. This last amount was too small to affect the guideline range. The Eighth Circuit found no clear error. The court’s credibility findings were virtually unreviewable. U.S. v. Titlbach, 300 F.3d 919 (8th Cir. 2002).
8th Circuit affirms sentence based on more drugs than found by jury because it was less than statutory maximum. (275) A jury convicted defendant of conspiracy to distribute less than 50 grams of a mixture of substance containing methamphetamine. See 21 U.S.C. §§ 841(a) and 846. She was sentenced to 88 months in prison, based in part on the district court’s finding that defendant was involved in the manufacture or distribution of 172.03 grams of methamphetamine mixture. On appeal, defendant contended that her sentence could not be based on a greater quantity of drugs than that found by the jury. The Eighth Circuit found no error, since defendant’s 88-month sentence was less than the statutory maximum for her crime. The statutory maximum for distribution of less than 50 grams of methamphetamine is 20 years. 21 U.S.C. § 841(b)(1)(C). U.S. v. Titlbach, 300 F.3d 919 (8th Cir. 2002).
8th Circuit holds defendant accountable for full 1.5 kilograms produced by meth conspiracy. (275) The Eighth Circuit upheld the district court’s finding that defendant was accountable for more than 1.5 kilograms but less than 5 kilograms of methamphetamine. First, defendant could be held accountable for the entire drug quantity produced by various members of the conspiracy. Defendant introduced his co-conspirators to each other and initiated the meth enterprise. He expected to receive a sizable portion of the proceeds from the enterprise. The amount of methamphetamine produced by the conspirators clearly exceeded 1.5 kilograms. May testified that he helped cook five or six “eight-balls” of meth (about 3.5 grams each) on 30 to 36 occasions, for a conservative estimate of 525 grams. Sandberg testified that on two different trips he purchased about $1400 or $1500 worth of pseudoephedrine, or about 34,000 sixty-milligram tablets. Using the DEA chemist’s production ratio, this would have resulted in the production of 1.8 kilograms of meth. Two other conspirators testified about their production, respectively, of 1.1 kilograms and 224 grams of meth. These totals were clearly in excess of 1.5 kilograms needed to support defendant’s sentence. U.S. v. Zimmer, 299 F.3d 710 (8th Cir. 2002).
8th Circuit holds that defendant was well aware of scope of drug conspiracy. (275) The district court found that defendant was accountable for between 10 and 30 kilograms of a substance containing heroin during his involvement in the conspiracy. The Eighth Circuit ruled that the court’s drug quantity estimates were reasonable and supported by the testimony of co-conspirator Heard. Heard testified at trial that defendant ran Frazier’s location on North Grand for about four or five months. He further testified that each of Frazier’s locations distributed between 12 and 15 grams of uncut heroin per day. If defendant was involved for four months and the heroin was diluted at a ratio of six parts filler to one part heroin, as Heard testified, the operation would have distributed 26.9 to 33.6 kilograms of a substance containing heroin, even if only two locations had been open each day during defendant’s involvement. The district court did not clearly err in finding that the sales made at the other distribution locations were reasonably foreseeable to defendant. Defendant not only established one location, but recruited others into the conspiracy, was present at other distribution locations either to pick up drugs or for other reasons related to the operation’s activities, and procured a large volume of empty capsules (about 22,000) to be used in selling heroin. Thus, defendant was intricately involved in Frazier’s operation and well aware of its scope. U.S. v. Frazier, 280 F.3d 835 (8th Cir. 2001).
8th Circuit says defendant properly held accountable for drugs involved in conspiracy. (275) Defendant argued that the district court committed clear error in holding him responsible for 2722 grams of cocaine distributed in the course of the conspiracy rather than the nine ounces he directly helped distribute. However, because members of a conspiracy are responsible for their co-conspirators’ acts that further the conspiracy, one conspirator may be accountable for the distribution of drugs by other conspirators if the distribution was in furtherance of the conspiracy and either known to the defendant or reasonably foreseeable to him. Here, evidence at trial showed defendant knew the extent of the conspiracy, and the district court reasonably relied on the trial evidence as well as the PSR, which included the total amount of drugs involved in the conspiracy. U.S. v. Beeks, 266 F.3d 880 (8th Cir. 2001).
8th Circuit holds that stipulation waived drug quantity challenge. (275) Members of a Los Angeles street gang transported cocaine powder from California to the Twin Cities, where they cooked the powder into crack and distributed it. Defendant was one of the conspiracy leaders responsible for drug activities in California. He argued that the district court erred in finding that all of the drugs attributed to the conspiracy, including 1054 grams of crack purchased by an undercover officer in the Twin Cities, and 2477 grams of cocaine powder seized at the Twin Cities airport, were reasonably foreseeable to him as a California conspirator. The Eighth Circuit ruled that this contention was waived because defendant’s plea agreement provided that his base offense level was 36, and this was the base offense level actually used in determining his sentence. Moreover, the contention was without merit. In sentencing defendant, the district court stated that it had “heard the trial of the other defendants in this case” and found that the crack cocaine sales in Minnesota were reasonably foreseeable relevant conduct. The court was entitled to consider relevant conduct introduced at the trial of co-defendant Louis. The testimony of co-conspirator Atkins at that trial amply demonstrated that the crack cocaine sales, as well as the cocaine powder seized at the airport, were reasonably foreseeable to defendant as a leader of the conspiracy. U.S. v. Scott, 243 F.3d 1103 (8th Cir. 2001).
8th Circuit says objection to drug quantity finding would not have helped defendant. (275) Defendant argued in a § 2255 petition that his attorney’s failure at his original sentencing to challenge the amount of drugs attributed to him constituted ineffective assistance. The district court had sentenced defendant on the basis of the full quantity of drugs involved in the conspiracy, more than 100 kilograms, and defendant did not appeal that determination. The Eighth Circuit found no ineffective assistance because defendant could not demonstrate prejudice: an objection to the court’s drug quantity determination would not have helped him. Defendant was responsible for reasonably foreseeable drugs within the scope of jointly undertaken criminal activity. USSG § 1B1.3. The government proved the quantity involved in the overall conspiracy by summing the amounts derived from the testimony of witnesses and corroborating evidence and by extrapolating from the dollar amounts of drug proceeds and other financial information the quantity involved. Defendant’s role as “the primary retail dealer/customer in the conspiracy, in addition to directing the activities of various other dealers,” was consistent with being sentenced for the full amount of the conspiracy-related cocaine. U.S. v. Pruitt, 233 F.3d 570 (8th Cir. 2000).
8th Circuit rules drug shipment was connected to defendant’s conspiracy. (275) The district court attributed 4554 grams of cocaine and 280 grams of heroin to defendant based on eight trips to Chicago to purchase drugs. Defendant argued that 500 grams of cocaine and 225 grams of heroin purchased by Pena in Chicago should not be included in his sentence since Pena stated in a deposition that the drugs were his own and were not tied to defendant’s conspiracy. However, contradicting this statement was testimony from Cortines and Cossette that connected defendant with Pena at the time Pena brought the drugs from Chicago. Cossette also testified that defendant confronted her after she stole some cocaine from the Pena shipment. Accordingly, the Eighth Circuit held that the district court did not clearly err by attributing this shipment to defendant. U.S. v. Granados, 202 F.3d 1025 (8th Cir. 2000).
8th Circuit holds that lab’s production capability was foreseeable to defendant. (275) The Cates drug lab had 25 grams of methamphetamine and 454 grams of pseudoephedrine. An affidavit submitted at sentencing indicated that the potential meth yield from the 454 grams of pseudoephedrine was 261 grams. The Eighth Circuit upheld the district court’s decision to hold defendant accountable for 286 grams, the sum of 25 grams and the estimated yield of 261 grams. A sentencing court may rely on evidence submitted at trial or during the sentencing hearing and on uncontested statements from the defendant’s PSR. The evidence at trial was more than sufficient to establish defendant’s connection to the Cates lab. Defendant ordered, picked up, and delivered to James Cates 12 pounds of black iodine, a meth precursor. A government witness testified that the amount of precursor chemicals defendant delivered to Cates, when combined with a third ingredient, was enough to produce up to 2500 grams of meth. The production of the Cates lab was both within the scope of the criminal activity contemplated by the conspiracy defendant joined, and was reasonably foreseeable to her. U.S. v. Davidson, 195 F.3d 402 (8th Cir. 1999).
8th Circuit says change of drug source did not end one conspiracy and begin another. (275) Defendant argued that there were actually two conspiracies, and that the drugs from only one of them should have been attributable to him. The first conspiracy ended when its leader lost his first source of methamphetamine in Missouri and the second conspiracy began a month later when he acquired a second source in Arkansas. The Eighth Circuit found only one conspiracy for sentencing purposes. The period of time during which the co-conspirators did not have a source of methamphetamine was not a hiatus between conspiracies, but a mere change in personnel in an ongoing conspiracy. Many of the same people remained involved with each other and sought to achieve the same objectives after the source of drugs had changed. U.S. v. Mosby, 177 F.3d 1067 (8th Cir. 1999).
8th Circuit says ambiguity in verdict irrelevant since sentence the same for both charges. (275) Defendant contended that it was unclear whether the jury convicted him of conspiracy to manufacture or conspiracy to distribute, or both, and therefore, he should have been sentenced in the lowest range that the verdict’s permissible interpretation would allow. The Eighth Circuit found that any ambiguity in the verdict was irrelevant, because defendant’s sentence would have been the same for both conspiracies. Defendant’s sentence would not have been lower if he had been sentenced only for conspiracy to distribute. A sentence for conspiracy to distribute or conspiracy to manufacture is determined by the amount of the drugs involved in the conspiracy that were reasonably foreseeable to the defendant. In the present case, the sentence was based on testimony from a witness who delivered drugs from the manufacturers to the distributors. The entire amount in these deliveries was already out of the hands of the manufacturers and had become part of the conspiracy to distribute. As a member of the conspiracy to distribute, it was reasonably foreseeable to defendant that there would be other distributors like himself, and that this amount of drugs would be involved. U.S. v. Mosby, 177 F.3d 1067 (8th Cir. 1999).
8th Circuit attributes to defendant cocaine intercepted by police before delivery to defendant’s home. (275) On several occasions, defendant and his associates sold small quantities of cocaine to an undercover officer. Police then intercepted an overnight package containing one kilogram of cocaine that was directed to the address defendant shared with the associates. A later search of the residence uncovered a note, in defendant’s handwriting, containing a tracking number that corresponded to the package of cocaine that was intercepted by police. The Eighth Circuit held that the one kilogram of cocaine intercepted by police was properly treated as relevant conduct. There was sufficient evidence for the district court to conclude that the one kilogram of cocaine fell within the scope of defendant’s jointly undertaken criminal activity and was reasonably foreseeable to defendant. He confessed his involvement in drug trafficking. In fact, he testified that he was the only one of the three defendants involved in the four controlled buys. Defendant sold powder cocaine to the undercover officer. The package sent to his residence contained powder cocaine. U.S. v. Molina, 172 F.3d 1048 (8th Cir. 1999).
8th Circuit rules defendant accountable for cocaine and methamphetamine distributed by conspiracy. (275) Defendant pled guilty to conspiracy to distribute cocaine and methamphetamine. He argued that he should not be held accountable for meth found at a co-conspirator’s house because he was merely the cocaine supplier for the conspiracy. The Eighth Circuit found that defendant’s guilty plea and the facts to which he stipulated foreclosed this argument. Defendant pled guilty to a conspiracy to distribute cocaine and meth. In addition, he stipulated that he knew that the conspiracy was distributing cocaine and meth. Finally, traces of cocaine and meth were detected on drug paraphernalia found at defendant’s residence. Brown v. U.S., 169 F.3d 531 (8th Cir. 1999).
8th Circuit holds that credibility findings met Rule 32’s standards. (275) Defendants challenged the drug quantity findings in the PSR. The district court overruled defendants’ objection to the PSR’s drug quantity calculations and attributed more than 150 kilograms of cocaine to each defendant. The Eighth Circuit held that the district court made adequate findings under Rule 32 to support its drug quantity findings. The government established drug amounts for each defendant through the trial testimony of numerous witnesses. The district court expressly found the witnesses were credible. Witness credibility is an issue for the sentencing judge that is virtually unreviewable on appeal. Although it would be preferable for the court to specify the basis for its drug quantity findings, the court met Rule 32’s standard when it made its credibility findings and overruled defendants’ objections. U.S. v. Jones, 160 F.3d 473 (8th Cir. 1998).
8th Circuit finds sufficient evidence that defendant was supplier for marijuana distributor. (275) Defendant was convicted of drug conspiracy charges. The district court found him responsible for distributing between 100 and 400 kilograms of marijuana. Defendant argued that there was insufficient evidence to link him to all the drugs sold by a co-conspirator because defendant was only observed at half of the drug transactions for which he was held accountable. The Eighth Circuit affirmed because the evidence suggested that defendant supplied all the marijuana that the co-conspirator sold. The co-conspirator acknowledged that he was only a middleman and that defendant was his supplier. This statement was supported by the close family relationship between defendant and the co-conspirator, the proximity of their houses, the similarity in the packaging of the marijuana on those occasions when it was delivered by defendant and those occasions when the marijuana was already at defendant’s house because prior arrangements had been made for its delivery. U.S. v. Cordova, 157 F.3d 587 (8th Cir. 1998).
8th Circuit attributes full amount of methamphetamine to defendants at center of ring. (275) Defendants were convicted of conspiracy to distribute methamphetamine. They argued that the sentencing judge failed to specifically rule or estimate the amount of drugs attributable to them. The Eighth Circuit disagreed, finding defendants were properly held accountable for all the meth in the conspiracy. Defendants were at the center of the large meth distribution ring. The sentencing judge could properly attribute the total amount of drugs in the conspiracy to these defendants. The government properly relied on the testimony of co-conspirators and immunized witnesses to establish the scale of the conspiracy because a relatively small amount of drugs was actually seized by law enforcement agents. Under these circumstances, the sentencing judge’s use of witnesses’ testimony to establish drug quantity was proper. Although a more detailed record addressing trial testimony and specific amounts would have been preferable, the court’s attribution of 10-30 kilograms of meth was supported by the evidence. U.S. v. Maggard, 156 F.3d 843 (8th Cir. 1998).
8th Circuit finds all drugs in conspiracy foreseeable to defendant. (275) Defendant was a member of a violent street gang that distributed crack cocaine. He argued that the court erred in holding him accountable for all of the drugs involved in the conspiracy. The Eighth Circuit found the evidence more than sufficient to tie defendant to each drug quantity considered by the district court. Each drug was either directly connected or imminently foreseeable to defendant, and each would surely have resulted in his profit had the conspiracy not been detected and foiled. U.S. v. Brown, 148 F.3d 1003 (8th Cir. 1998).
8th Circuit holds defendant accountable for methamphetamine he helped conspiracy acquire. (275) The Eighth Circuit found more than sufficient evidence to hold defendant accountable for 710 grams of methamphetamine found on a courier stopped at the Kansas City airport. Defendant facilitated the acquisition of the methamphetamine by giving the leader of the conspiracy the name of a supplier and giving the courier directions on how to contact him. In a taped conversation, defendant asked the courier if he had contacted the supplier. Another co-conspirator testified that defendant occasionally supplied him with methamphetamine and that defendant had access to kilogram quantities. The evidence demonstrated by a preponderance of the evidence both that defendant directly aided in the acquisition of the 710 grams of methamphetamine and that its acquisition was reasonably foreseeable to him. U.S. v. Alaniz, 148 F.3d 929 (8th Cir. 1998).
8th Circuit holds latecomer accountable for all drugs where reduced quantity would not change offense level. (275) Defendant was involved in a conspiracy to manufacture methamphetamine. The district court held him accountable for the entire 16.67 kilograms produced by the conspiracy. Defendant argued that his late entry into the conspiracy¾allegedly in 1994, over a year after the conspiracy began¾should have resulted in a reduced drug quantity for sentencing. The Eighth Circuit found no error since amount of methamphetamine produced in 1995 under the court’s formula was 12.27 kilograms, which would not have changed defendant’s base offense level. U.S. v. Coleman, 148 F.3d 897 (8th Cir. 1998).
8th Circuit holds defendants accountable for full amount of meth produced by conspiracy. (275) Defendants were involved in a conspiracy to manufacture methamphetamine. The Eighth Circuit upheld the court’s decision to hold them accountable for the full amount of methamphetamine produced by the conspiracy. The first defendant did not raise the foreseeability issue either in objections to his PSR or at his sentencing. Therefore, the district court properly relied on the PSR’s findings, which held the first defendant accountable for the full drug quantity. The record supported the court’s finding that the second defendant could foresee the full drug quantity. The second defendant stipulated that she purchased ingredients and generally assisted the leader of the operation. She rented the farmhouse where the lab was located, helped purchase iodine and lab equipment, accepted iodine deliveries, and worked in the lab. U.S. v. Coleman, 148 F.3d 897 (8th Cir. 1998).
8th Circuit upholds drug quantity findings. (275) Defendant was a member of a crack cocaine conspiracy. He challenged the court’s drug quantity finding. The Eighth Circuit upheld the court’s finding that the conspiracy involved one kilogram of crack because it was based on the length of the conspiracy, each defendant’s involvement in the conspiracy, the street value of crack, the results of surveillance, and the amounts seized by police. Trial evidence showed that the conspirators were dealing large amounts of crack over an extended period of time and that defendant was significantly involved in the conspiracy, had large amounts of cash, and left a supply of drugs for dealing at an acquaintance’s residence. U.S. v. Puckett, 147 F.3d 765 (8th Cir. 1998).
8th Circuit holds defendant accountable for all drugs based on knowledge of conspiracy. (275) Defendant was involved in a conspiracy that shipped several packages of methamphetamine from an Arizona supplier to different conspirators. Defendant complained that his sentence was improperly based upon the full amount of methamphetamine that was shipped in the conspiracy. The Eighth Circuit found no error since defendant accepted without objection this quantity as the basis for calculating his sentence. He could not object to drug quantity for the first time on appeal. Moreover, defendant admitted that he received more than 33 grams of pure methamphetamine for resale and that he was aware his co-conspirators would receive comparable shipments for the same purpose. His demonstrated knowledge of the nature and scope of the conspiracy permitted a sentence based on the total amount of drugs. U.S. v. Eads, 144 F.3d 1151 (8th Cir. 1998).
8th Circuit finds defendant sufficiently connected to kilogram of cocaine. (275) Defendant and others sold cocaine from an apartment. On May 23, an undercover agent made a controlled purchase of 1.74 grams of cocaine from defendant at the apartment. On May 31, upon information that others affiliated with the drug operation were delivering 1.5 kilograms to the apartment, agents executed a search warrant. They seized a one-kilogram package of cocaine and drug paraphernalia from the apartment. Defendant and other occupants of the apartment were arrested. The Eighth Circuit held that the court did not err in determining that the one-kilogram package was part of the jointly undertaken criminal activity to which defendant agreed. Defendant claimed this particular kilogram was to be sold as a unit by others in the conspiracy. However, there was evidence that on May 31 defendant offered to sell cocaine to an informant out of the apartment. When police executed the warrant, the only cocaine they found was the one kilogram package, out of which a sale that day presumably would have been made. Regardless of whether defendant was directly involved, he was sufficiently active to be liable for the entire kilogram. U.S. v. Robles, 139 F.3d 1187 (8th Cir. 1998).
8th Circuit holds conspirator responsible for entire shipment of cocaine. (275) Defendant pled guilty to cocaine conspiracy charges. He was arrested after he and three others met a courier carrying 21.28 kilograms of cocaine at the train station. The district court held defendant accountable for all 21 kilograms of cocaine, and the Eighth Circuit agreed. Defendant admitted that he had discussed selling drugs with the other conspirators and he had asked at least one man if he wanted to buy cocaine from his cousin. Moreover, defendant said that on the night before he drove the co-conspirators to the train station, he was fully aware of the purpose of the trip, and expected a shipment of 18 kilos. Because defendant admitted that he knowingly entered into a conspiracy to possess cocaine, the district court properly held him accountable for the full amount to be obtained by him and his co-conspirators. The difference between 18 and 21 kilograms was not material for guideline purposes. U.S. v. Varela, 138 F.3d 1242 (8th Cir. 1998).
8th Circuit attributes three kilograms of heroin to defendant even though she never possessed it. (275) The district court held defendant accountable for three to ten kilograms of heroin. She claimed the evidence tied her only to money in the conspiracy and not to the drugs themselves. The Eighth Circuit held defendant accountable for at least three kilograms, even though she never personally possessed the drugs. Defendant was aware of the nature and scope of the conspiracy, and therefore could foresee a drug quantity of at least three kilograms of heroin. During an interdiction stop, police seized about $27,000 in cash from defendant, who was traveling from Omaha to the conspiracy leader’s house in California. In a recorded telephone call, defendant told her brother that, of the money seized, $10,500 was for “the food,” which experts testified was code for narcotics. Defendant was also a party to additional intercepted phone conversations in which money and the heroin business were discussed. U.S. v. Padilla-Pena, 129 F.3d 457 (8th Cir. 1997).
8th Circuit holds defendants accountable for drugs hidden in woods 250 yards from their trailer. (275) Defendants sold methamphetamine and amphetamine to undercover officers from the trailer in which they lived. In a wooded area about 250 feet from the trailer police found a yellow bag with a white powdery substance that had a cocaine equivalency of 2041 grams. The Eighth Circuit found that the record supported the district court’s decision to include the 2041 grams in the calculation of defendants’ sentence. The 2041 grams were part of a larger quantity in a flask that co-conspirators brought back to the trailer. The conspirators removed a portion of the substance to sell to the undercover agent and retained the rest of the substance, which they then hid in the woods near the trailer. The entire flask of the substance, including the portion hidden in the woods, was an integral and essential part of the conspiracy. U.S. v. Sobrilski, 127 F.3d 669 (8th Cir. 1997).
8th Circuit holds “committed” member of conspiracy responsible for drug proceeds seized from leader. (275) The district court attributed to defendant $128,000 in drug proceeds seized from the leader of a drug conspiracy, which for sentencing purposes translated into 4.46 kilograms of cocaine. Defendant argued that he could not have reasonably foreseen the leader’s $128,000 drug deal. The Eighth Circuit held that the reasonable foreseeability test was met by the fact that defendant was a “committed, continuing member of the conspiracy who stood to benefit” if the leader had escaped undetected with the cash. U.S. v. Ortiz, 125 F.3d 630 (8th Cir. 1997).
8th Circuit finds defendants could foresee full amount of heroin in conspiracy. (275) The Eighth Circuit found the full amount of heroin in the conspiracy was reasonably foreseeable to the defendants. The evidence showed that they benefited from the conspiracy and were substantially committed to it. One defendant distributed heroin to low-level dealers, while the other worked as a street level distributor. However, their primary role was to package the heroin for sale by mixing it with diluting agents. Thus, they could reasonable foresee the full amount of heroin distributed by the conspiracy. U.S. v. Weekly, 118 F.3d 576 (8th Cir. 1997).
8th Circuit holds that court properly conducted relevant conduct analysis. (275) At sentencing, the court held defendant accountable for all the drugs distributed by the conspiracy in which he was involved. Defendant argued that the court attributed to him drugs that were from other, separate conspiracies. The Eighth Circuit held that the court properly conducted the relevant conduct analysis. Because defendant was convicted as a co-conspirator, he was responsible for all of the drug transactions that fell within the scope of the conspiracy headed by him and his wife. The trial court’s estimate of the drugs attributable to defendant was a conservative one. The court’s factual findings were sufficiently specific. The court read defendant’s objections, heard arguments on both sides, stated that it was convinced that both defendant and his wife were leaders of the entire matter, and noted that its determinations were based on its notes and its recollection of the testimony. U.S. v. Grajales-Montoya, 117 F.3d 356 (8th Cir. 1997).
8th Circuit finds that manufacturer and supplier could foresee drug quantity distributed. (275) Defendant was the manufacturer and supplier in a conspiracy to distribute methamphetamine. The Eighth Circuit agreed that defendant could reasonably foresee that the conspiracy involved 15-20 pounds of methamphetamine. One of defendant’s distributors testified that another distributor said he had access to as many as 30 or 40 pounds. Defendant’s commitment to the conspiracy was so great that on the day of the buy-bust he went with the distributor because it was a large drug buy involving substantial money. It was reasonably foreseeable that defendant knew that the drugs he supplied to the dealers were being distributed to others. U.S. v. Guerra, 113 F.3d 809 (8th Cir. 1997).
8th Circuit holds reasonable foreseeability is immaterial to own conduct. (275) Defendant, a drug dealer, arranged for a friend and customer to receive his drug deliveries in return for a discount on future purchases. The friend received two five pound parcels of marijuana. Police intercepted a third package carrying 239.5 grams of cocaine. Defendant and his supplier claimed they thought the third package contained marijuana, and they could not foresee that it contained cocaine. The Eighth Circuit held that reasonable foreseeability is immaterial when evaluating a defendant’s own conduct under § 1B1.3(a)(1)(A). Reasonable foreseeability is significant only when evaluating the acts and omissions of others. U.S. v. Strange, 102 F.3d 356 (8th Cir. 1996).
8th Circuit holds defendant accountable for entire shipment as aider and abettor. (275) Defendant was involved in a large marijuana importation and distribution network. He con-tended that the district court should only have attributed to him the 150 pounds of marijuana that he transported to Minnesota. He claimed he was not present when a 2000-pound load of marijuana was being dried and processed at the ranch the conspirators used, but rather stayed at a local hotel until his 150‑pound order was ready. The Eighth Circuit held that defendant was responsible for the 2000 pounds because he aided and abetted his co‑conspirator’s activities. He acted as a lookout while the other conspirators cleaned and dried the 2000 pounds of marijuana. Defendant knew marijuana was being processed at the site and actually learned how to do it himself. He picked up food and supplies for the other conspirators while they were processing the contraband. Defendant’s activities qualified him as an aider and abettor for the entire shipment, and under the circumstances, the actions of his co‑conspirators were reasonably foreseeable. U.S. v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).
8th Circuit attributes foreseeable drugs purchased by co‑conspirators. (275) Defendant was convicted of conspiring to possess and distribute methamphetamine. He argued that the court erroneously attributed to him methamphetamine that his co‑conspirators purchased without his knowledge or delivered to him for his personal use. The Eighth Circuit affirmed on the ground that defendant reasonably should have foreseen the total amount of drugs purchased. Moreover, he sold the drugs he received rather than using them himself. U.S. v. Crosby, 96 F.3d 1114 (8th Cir. 1996).
8th Circuit holds defendant accountable for drugs transported while he was hospitalized. (275) Between October 1992 and April 1993, defendant made six trips from Omaha to New York for a drug conspiracy. On each trip she transported 450‑500 grams of cocaine to Omaha, where the conspirators distributed the cocaine from an apartment she rented. Defendant conceded that she was responsible for 4750 grams of cocaine based on the drugs she transported and those seized in her motel room. The Eighth Circuit found she was properly held accountable for an additional 500 grams transported to Omaha by another courier in February 1993, while defendant was hospitalized for surgery. Defendant could clearly foresee that her conspirators would recruit another courier during her hospitalization to keep themselves supplied with cocaine. There was testimony that she knew of the trip and saw the transported drugs. U.S. v. Tauil‑Hernandez, 88 F.3d 576 (8th Cir. 1996).
8th Circuit says inclusion of drugs seized after defendant’s arrest may have affected sentence. (275) Defendant argued that the district court erred in attributing to him drugs seized from his co‑conspirator’s apartment March 3, since he had been in custody since his arrest on February 2. The prosecutor stated that those drugs were not included, but that even if they were, they would not affect defendant’s offense level calculation. The Eighth Circuit found that the PSR did include these drugs and that their inclusion increased defendant’s offense level from 26 to 28. Because defendant’s sentence may have been affected by this incorrect information, the case was remanded. U.S. v. Byrne, 83 F.3d 984 (8th Cir. 1996).
8th Circuit says crack cocaine was foreseeable to members of conspiracy that distributed heroin and powder cocaine. (275) Defendant challenged the inclusion of 1.6 grams of crack cocaine found in a co‑conspirator’s apartment at the time of her arrest. He claimed there was no evidence that crack was part of the conspiracy and that the crack found was most likely the co-conspirator’s personal supply. The Eighth Circuit found it was reasonably foreseeable the crack would be distributed by the members of a conspiracy that distributed heroin and powder cocaine. U.S. v. Byrne, 83 F.3d 984 (8th Cir. 1996).
8th Circuit says failure to challenge all drugs in courier’s luggage was not ineffective assistance. (275) Police arrested a courier carrying eight kilograms of crack cocaine. Defendant was arrested at the courier’s hotel when he came to purchase the crack. In a § 2255 petition, defendant argued for the first time that his counsel was ineffective for failing to challenge the PSR’s conclusion that he was responsible for all of the crack cocaine found in the courier’s luggage. The district court concluded that his claim was procedurally barred because he failed to raise it on direct appeal. The Eighth Circuit held that the claim was not barred, because claims of ineffective assistance of counsel should be raised for the first time in a § 2255 motion, rather than on direct appeal. The claim, however, lacked merit. Although defendant was only carrying $1000, and the courier stated that she was to be paid $3000, this did not mean defendant was only going to purchase one third of the drugs. It was not ineffective assistance to fail to object to a PSR that did not draw the unlikely conclusion that the amount of money a defendant is carrying at the time of arrest conclusively determines the scope of the conspiracy. Garrett v. U.S., 78 F.3d 1296 (8th Cir. 1996).
8th Circuit finds drug quantities foreseeable even though defendant did not directly participate in each transaction. (275) The district court attributed to defendant 113.5 kilograms of cocaine based on several transactions between 1987 and 1990. The drug quantity was based on the testimony of defendant’s co‑conspirators, who provided evidence of numerous drug transfers, and wire transfers of drug proceeds. The Eighth Circuit affirmed. Even though defendant did not participate actively in each of these transactions, the conduct of his co‑conspirators was reasonably foreseeable. The discrepancy between one conspirator’s testimony and the court’s finding, was harmless error. The conspirator testified that one trip involved seven kilograms; the PSR and the court stated that it involved ten kilograms. This three kilogram difference did not affect defendant’s offense level. U.S. v. Jenkins, 78 F.3d 1283 (8th Cir. 1996).
8th Circuit says counsel’s failure to object to foreseeability did not prejudice defendant. (275) Defendant was convicted of conspiracy and attempt to manufacture methamphetamine after delivering glassware to a methamphetamine laboratory. Defendant objected to the PSR’s finding that the laboratory could have produced 37.5 kilograms, but did not object to its finding that the lab’s production capacity was “reasonably foreseeable.” In U.S. v. Montanye, 996 F.3d 190 (8th Cir. 1993), an en banc court affirmed. Defendant then filed a § 2255 motion claiming his lawyer was ineffective for failing to object to the PSR’s foreseeability finding. The Eighth Circuit rejected the ineffective assistance claim, finding no prejudice because defendant’s sentence would have been the same even if only ten kilograms were foreseeable. The 37.5 kilogram estimate was “conservative” based on the assumption that the glassware would be used only five times. The district court found it was foreseeable that the lab would be used several times and that it would produce at least ten kilograms. Judge Bright dissented. Montanye v. U.S., 77 F.3d 226 (8th Cir. 1996).
8th Circuit says scope of defendant’s agreement was not limited to single transaction. (275) Defendant became involved in a highly structured, well organized and intricate marijuana distribution conspiracy located throughout the U.S. However, shortly after becoming involved, he was arrested. The district court held him accountable for 2,028 pounds of marijuana, which represented the amount delivered to a warehouse near defendant the month before his arrest. The Eighth Circuit held that the scope of the criminal activity defendant agreed to participate in was not limited to the single transaction he arranged with the conspiracy. He did not have a limited agreement when he joined the conspiracy. The record suggested that defendant intended to conduct future transactions with his conspirators and was simply deprived of the opportunity because he was arrested. The quantity attributed to defendant was reasonably foreseeable. He knew the marijuana he distributed came from a secluded warehouse and, based on his knowledge that the operation supplied large orders, he had to have realized that significant quantities were stored there. U.S. v. Flores, 73 F.3d 826 (8th Cir. 1996).
8th Circuit agrees that defendant could foresee distribution of 213 kilograms of cocaine. (275) Defendant was involved in a long-term, violent drug trafficking organization. The Eighth Circuit agreed that defendant could foresee the conspiracy’s distribution of at least 213 kilograms of cocaine. Several co-conspirators testified that defendant played a leading role in the drug-trafficking operation in the late 1970’s and early 1980’s. Defendant’s role diminished over time, but he never withdrew from the conspiracy. Another co-conspirator testified that defendant sold the organization’s cocaine from 1987 to 1989. Defendant demonstrated his substantial commitment to the conspiracy by twice committing attempted murder on its behalf. Even if defendant did not directly engage in the distribution of 213 kilograms, he could reasonably foresee that others would do so in furtherance of their jointly undertaken criminal activity. U.S. v. Darden, 70 F.3d 1507 (8th Cir. 1995).
8th Circuit considers personal use cocaine in drug quantity attributable to conspiracy. (275) Defendant was convicted of conspiring to possess and distribute cocaine. He argued that the district court erred in calculating the drug quantity attributable to him by including amounts of cocaine that he personally consumed or intended for personal consumption. The Eighth Circuit, following U.S. v. Brown, 19 F.3d 1246 (8th Cir. 1994), found no error in including cocaine defendant had purchased for his personal use. Purchases by an addict or casual user may not automatically make one a member of a conspiracy to distribute. However, when the evidence establishes that there was a conspiracy and that the defendant was a member, then defendant’s purchases for personal use are relevant in determining the quantity of drugs that the defendant knew were distributed by the conspiracy. U.S. v. Fregoso, 60 F.3d 1314 (8th Cir. 1995).
8th Circuit agrees that defendant could foresee 1064 grams of heroin in conspiracy. (275) Defendant was convicted of various conspiracy and drug-related charges. The district court found that he could foresee 1064 grams of heroin, the entire amount distributed by the conspiracy. The Eighth Circuit agreed that the entire amount of heroin involved in the conspiracy was reasonably foreseeable to defendant. One conspirator testified that he and another conspirator transported heroin to St. Louis on two occasions, transporting a total of 1064 grams. Police observed defendant enter two apartments where the heroin was stored, and then travel to areas known for high drug sales. Defendant was arrested immediately after he left one such apartment. A later search of the apartment uncovered 124.2 grams of heroin. Defendant was carrying 24.463 grams of heroin at his arrest. The district court found that defendant received a significant portion of the total amount of heroin that the conspirators brought to St. Louis, and was aware of the scale of the operation being conducted out of the apartments. U.S. v. Escobar, 50 F.3d 1414 (8th Cir. 1995).
8th Circuit agrees that defendant could foresee all of the cocaine distributed by conspiracy. (275) The Eighth Circuit upheld the district court’s determination that defendant could reasonably foresee all of the cocaine distributed by a conspiracy. Defendant demonstrated a substantial level of commitment to the conspiracy. He accompanied the conspiracy’s leader to California when the leader met with their supplier. Defendant was actively and directly involved in a number of drug transactions. He performed various favors for the leader, such as providing beepers. Defendant knew or should have known that beepers were being used for illegal activity. Defendant also filled out many of packing slips used during the drug conspiracy. Even if he was unaware of the quantity of drugs obtained through the beepers and packing slips, any amount established was clearly foreseeable to him. The district court’s finding that defendant could foresee the conduct and omissions of others was sufficiently specific. U.S. v. Rice, 49 F.3d 378 (8th Cir. 1995).
8th Circuit holds defendant accountable for drugs distributed by another drug dealer. (275) Defendant argued that he was not responsible for drugs distributed by another dealer because he did not directly participate in that dealer’s enterprise. The Eighth Circuit held that the other dealer’s activities were reasonably foreseeable to defendant. The lives of the two men were “remarkably intertwined.” Defendant introduced the dealer to his supplier so that the supplier would sell drugs to the dealer. The dealer fronted cocaine for defendant. Defendant supplied the dealer an address for the supplier to ship cocaine to the dealer. Even when both were working separately, they gave each other tips on how to be more successful. It was clearly foreseeable that this behavior would facilitate the dealer’s criminal enterprise. U.S. v. Rice, 49 F.3d 378 (8th Cir. 1995).
8th Circuit says intimate involvement in conspiracy made drug quantities foreseeable. (275) Defendant challenged the district court’s determination that he was responsible for more than five kilograms of powder cocaine, claiming he was only accountable for 12.07 grams of crack. The Eighth Circuit found that more than five kilos were reasonably foreseeable to him, since defendant was intimately aware of and involved in the drug conspiracy. Wiretap evidence of drug-related transactions, notes detailing drug transactions, and the triple-beam scale with traces of cocaine that was found in defendant’s apartment showed that he was aware of the extent of the conspiracy. U.S. v. Smith, 40 F.3d 933 (8th Cir. 1994).
8th Circuit holds that conspirator’s possession of additional marijuana was foreseeable. (275) Defendants were involved in a conspiracy to sell marijuana to an undercover agent. The district court held defendants accountable for 43.04 pounds of marijuana found at a co-conspirator’s house. The 8th Circuit agreed that the marijuana possession was in furtherance of the conspiracy, and it was reasonably foreseeable to defendants that the co-conspirator would be in possession of the additional marijuana. Defendant called the co-conspirator with the expectation that the co-conspirator would be able to make a delivery of marijuana out of his “inventory.” The second defendant initially offered to sell the undercover agent 150 pounds of marijuana. Because the 43.05 pounds found in the co-conspirator’s house was virtually identical to the 30 pounds defendants attempted to sell to the undercover agent, the court could infer that the 43.05 pounds were part of the same shipment that the second defendant had previously attempted to sell. Moreover, the second defendant and the co-conspirator kept in constant contact, and this defendant was apprised of the current status of the inventory. U.S. v. Garrido, 38 F.3d 981 (8th Cir. 1994).
8th Circuit bases sentence on seized drug records. (275) The 8th Circuit found that two defendants were properly held accountable for between 100 and 400 kilograms of marijuana. The 17 pounds seized from the first defendant’s apartment did not reflect the scope of his drug trafficking operation. Drug records seized from his residence showed that during the course of his drug trafficking scheme he had distributed over 401 pounds. The second defendant was properly held accountable for the 150 pounds of marijuana he negotiated to sell to an informant. The second defendant could reasonably foresee the large quantities of marijuana sold by the first defendant. The second defendant had expressed concern about the large number of people carrying bags of marijuana from the first defendant’s residence. U.S. v. Quintanilla, 25 F.3d 694 (8th Cir. 1994).
8th Circuit holds co-conspirator’s distribution of cocaine to others was reasonably foreseeable. (275) Two conspirators were found accountable for between 50 and 150 grams of cocaine base. The 8th Circuit affirmed. One defendant owed a third conspirator money for at least 20 grams of cocaine base. This conspirator also sold more than 100 grams of cocaine to others, and these sales were reasonably foreseeable to defendant. The second defendant was observed receiving about 14 grams of cocaine from the conspirator. This defendant could also foresee the quantities sold by the third conspirator, since he was often in the housing project when the cocaine sales took place. U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994).
8th Circuit holds that brother’s 40 kilograms of cocaine was part of jointly undertaken activity. (275) Defendant and his brother were observed removing two kilograms of cocaine from a hidden compartment in the brother’s car. A search of the car uncovered an additional 40 kilograms of cocaine in the hidden compartment. The 8th Circuit upheld the district court’s determination that the additional 40 kilograms were part of defendant’s “jointly undertaken criminal activity.” The videotape showed defendant and his brother taking two kilograms of cocaine from the 42-kilograms stash. A taped conversation among conspirators stated that defendant’s approval was needed before the confidential informant could become a courier. Notes seized from a convicted drug dealer referenced both defendant and his brother. Defendant admitted that he was a long-time drug dealer, and an expert testified that one could not quickly distribute two kilograms of cocaine after being out of the business for more than 10 years. This evidence, combined with the court’s finding that defendant’s testimony was wholly incredible, was sufficient to justify the finding that defendant was a long-time drug dealer who conspired to distributed more than 15 kilograms of cocaine. U.S. v. Bauer, 19 F.3d 409 (8th Cir. 1994).
8th Circuit finds defendants accountable for drugs involved in underlying substantive counts. (275) Defendants were convicted of one count of conspiracy, and 25 substantive counts of drug distribution and possession. They argued that the district court failed to make findings regarding the scope of their jointly undertaken criminal activity, and the foreseeability of the conduct of their co-conspirators’ conduct as required by section 1B1.3. The 8th Circuit found no error. Defendants’ argument ignored the fact that the jury made these findings when it found each defendant guilty of the substantive offenses. Under the guidelines, the sentencing court could properly aggregate the amounts involved in these counts of conviction to determine defendants’ base offense levels. U.S. v. Lucht, 18 F.3d 541 (8th Cir. 1994).
8th Circuit holds defendant accountable for all crack sold by and seized from conspiracy. (275) Defendant argued that he should only be held accountable for the 13.04 grams of crack that he actually distributed, and that the balance sold by or seized from the conspiracy was not foreseeable to him. The 8th Circuit rejected this claim. Not only did defendant participate in an actual distribution by his two co-conspirators, but he also had keys to the towel dispenser where the crack cocaine was hidden, and keys to the “stash house” where the drugs were processed and found. The district court’s finding of 102 grams of cocaine base included drugs obtained from 11 controlled buys, drugs seized from the restaurant where the conspirators sold drugs, and drugs discovered during a search of the stash house. U.S. v. Tran, 16 F.3d 897 (8th Cir. 1994).
8th Circuit holds defendant accountable for drugs he conspired to transport. (275) Defendant argued that he should not be held accountable for drugs seized from his co-conspirator’s car. The 8th Circuit affirmed. Inclusion of the drugs was proper if the preponderance of the evidence showed that defendant participated in the conspiracy to transport them. This threshold was exceeded when the jury convicted defendant of the conspiracy. The fact that he was in jail when the car was stopped was not important. Evidence established that defendant, from jail, helped procure the car in which the drugs were transported, and there was no evidence that he had withdrawn from the conspiracy before the car was seized. U.S. v. Casares-Cardenas, 14 F.3d 1283 (8th Cir. 1994).
8th Circuit holds that penalties in § 841(b) are based on drugs attributable to entire conspiracy. (275) Defendant argued that the penalties set forth in section 841(b) should not be based upon the entire quantity of drugs involved in the conspiracy, but upon the greatest amount of any single transaction in the course of the conspiracy. The 8th Circuit rejected this argument. One of the measures used to determine the severity of a drug conspiracy is the amount of narcotics involved in the entire conspiracy. The district court properly ruled that the penalties set forth in section 841(b) are based on the amount of drugs attributable to the entire conspiracy. U.S. v. Wessels, 12 F.3d 746 (8th Cir. 1993).
8th Circuit affirms that defendant was involved in conspiracy to distribute 500 pounds of marijuana. (275) Defendant claimed there was insufficient evidence that he participated in a conspiracy to distribute in excess of 100 kilograms of marijuana, contending that his involvement was limited to the delivery of 98 pounds. The 8th Circuit rejected the argument. A co-conspirator testified that he had agreed with defendant to provide 500 pounds. Defendant’s contrary claim that his involvement was limited to 98 pounds presented a factual issue in which his credibility played a central role. The numerous inconsistencies in defendant’s own testimony lent ample support to the district court’s decision to discredit his testimony regarding the scope of his involvement. U.S. v. Ruvalcaba, 9 F.3d 41 (8th Cir. 1993).
8th Circuit examines role in conspiracy to uphold reasonable foreseeability of drug quantities. (275) Defendants argued that the court erred in attributing to them the entire quantity of drugs involved in their conspiracy. The 8th Circuit upheld the finding that the quantities were reasonably foreseeable to each defendant, relying on the deep involvement of each defendant in the conspiracy’s actions. The court relied on one defendant’s entrustment with $207,000 worth of cocaine as evidence of the scope of his involvement with the conspiracy. U.S. v. Ortiz-Martinez, 1 F.3d 662 (8th Cir. 1993).
8th Circuit en banc finds no plain error in attributing lab capacity to defendant who provided glassware. (275) Defendant was convicted of an attempt to manufacture methamphetamine based on his provision of glassware to the persons who planned to produce methamphetamine. The district court attributed the entire lab capacity to defendant in calculating defendant’s drug quantity. Though the defendant had not contested whether the entire amount was reasonably foreseeable to him, a panel of the 8th Circuit remanded for resentencing on that issue. The en banc court vacated the panel decision and affirmed the district court’s sentence, finding no plain error in the district court’s failure to make explicit findings on the foreseeability issue or on the lack of evidence in the record regarding foreseeability. In the absence of objection, the district court was permitted to rely on the conclusions in the presentence report. U.S. v. Montanye, 996 F.2d 190 (8th Cir. 1993). (en banc).
8th Circuit finds insufficient evidence of drug quantity under negotiation. (275) Co-conspirators were sentenced based on a finding that they had 150 pounds of marijuana available for distribution. The district court relied on former application note 1 to section 2D1.4, which permits consideration of the weight under negotiation in an uncompleted distribution. The 8th Circuit ruled that the district court erred because there was no specific negotiation or agreement to sell that marijuana. The government must demonstrate the defendant actually agreed to or negotiated for a sale of the contested amount. However, the court’s finding could possibly be supported by application note 2 to section 2D1.4, which permits the court to estimate the quantity involved when it finds that a greater amount was available for sale than was seized. U.S. v. Garrido, 995 F.2d 808 (8th Cir. 1993).
8th Circuit rejects finding that object of conspiracy was 150 pounds of marijuana. (275) A detective testified that when he was asked how much marijuana he wanted, he said 150 pounds. But when he discussed this with one of the defendants, the defendant stated he only had 30 pounds left. The presentence report for all four defendants indicated that a confidential informant had told an agent that 150 pounds were available. But a presentence report is not evidence. The confidential informant did not testify, and the government introduced no evidence to support the statement. Moreover, the government produced no evidence that the object of the conspiracy included 43 pounds of marijuana seized from one defendant’s house. Although that defendant could be held responsible based on his admission that he helped package the marijuana, the other co-defendants could not. U.S. v. Garrido, 995 F.2d 808 (8th Cir. 1993).
8th Circuit finds no controverted factual matters requiring specific findings. (275) The 8th Circuit rejected defendants’ claim that the district court erred in failing to make specific findings that all 93 kilograms of cocaine were “reasonably foreseeable”. Defendants’ presentence reports (PSRs) recited in great detail their role in the conspiracy, based primarily on an informant’s trial testimony. When defendants filed objections to the quantities attributed to them, the probation officers responded with lengthy PSR addenda. At sentencing, neither defendant commented on this issue nor alleged any factual inaccuracy in the PSRs. Thus, there were no controverted factual matters requiring specific findings under Rule 32. The sentencing judge, who had presided at trial, expressly overruled all objections that affected sentence and found that the quantities attributed to defendants in their PSRs were accurate. U.S. v. Edwards, 994 F.2d 417 (8th Cir. 1993).
8th Circuit affirms that conspirator was directly involved in distributing 93 kilograms of cocaine. (275) Defendant argued that she only delivered 33 kilograms of cocaine, and that the rest of the cocaine distributed by the conspiracy was distributed before she joined. The 8th Circuit rejected this, since the evidence showed defendant was “directly involved” in the distribution of 93 kilograms of cocaine. An informant testified that defendant was present when he and a co-conspirator agreed that defendant would deliver any cocaine that the informant ordered from the co-conspirator. According to the informant, defendant helped break the cocaine down and made all but one delivery to the informant. U.S. v. Edwards, 994 F.2d 417 (8th Cir. 1993).
8th Circuit attributes co-conspirators’ drugs to defendant. (275) Though defendant failed to raise the issue below, on appeal he argued that the district court improperly attributed drugs possessed by his co-conspirators to him in calculating his drug quantity. Finding no plain error, the 8th Circuit noted that commentary to 1B1.3(a)(1) permitted such attribution when the activity was “reasonably foreseeable by the defendant.” The jury had found defendant guilty of conspiracy. U.S. v. Travis, 993 F.2d 1316 (8th Cir. 1993).
8th Circuit says that defendant could reasonably foresee future undelivered shipments of marijuana. (275) A marijuana seller agreed to supply a buyer over the next year with 20 shipments of marijuana of 100 to 200 pounds each. Defendant assisted the buyer with three deliveries totaling 446 pounds, and then all conspirators were arrested. The 8th Circuit affirmed, holding defendant responsible for the future undelivered shipments. The standard is not whether defendant had actual knowledge of the terms those shipments were to be delivered on, but whether those future amounts were reasonably foreseeable to him. Defendant knew when he entered the conspiracy that the buyer intended to engage in ongoing marijuana transactions and defendant willingly lent his services to the buyer in handling these transactions. Defendant was not a mere onlooker, “gofer,” or guard. He helped unload marijuana, repackage it, and, on one occasion, provided storage for a shipment of marijuana in his own home. U.S. v. Adipietro, 983 F.2d 1468 (8th Cir. 1993).
8th Circuit vacates where district court failed to make foreseeability finding for conspirator. (275) The 8th Circuit held that the district court erred in attributing to defendant all of the LSD involved in the conspiracy. The district court could sentence defendant for LSD possessed and sold by his co-conspirator only if it found by a preponderance of the evidence that the co-conspirator’s activities were in furtherance of the conspiracy and were either known to defendant or were reasonably foreseeable to him. Although the record might support a finding that the entire 10.2 grams of LSD were properly attributable to defendant, that was a question of fact to be determined by the district court. U.S. v. Rogers, 982 F.2d 1241 (8th Cir. 1993).
8th Circuit affirms that two defendants could foresee large quantity of marijuana distributed. (275) The 8th Circuit affirmed that two defendants could reasonably foresee the entire quantity of drugs distributed by their marijuana conspiracy. One defendant was present when one marijuana shipment was delivered, accompanied the conspiracy’s leader several times to collect payments or deliver marijuana, and received money from the purchasers. The second defendant transported large sums of money from the buyer to the conspiracy’s leader, and thus could have reasonably foreseen that large quantities were delivered prior to his entry into the conspiracy. Further, he was the first defendant’s step-father, and shared a residence with him. However, because the district court failed to explain its basis for holding a third defendant accountable for 5,000 pounds of marijuana, the case was remanded. U.S. v. Alexander, 982 F.2d 262 (8th Cir. 1992), appeal after remand, 12 F.3d 1103 (8th Cir. 1994).
8th Circuit affirms that defendants were responsible for co-conspirators’ drug quantities. (275) The 8th Circuit affirmed that in sentencing defendants for drug conspiracy, the district court properly considered amounts of drugs involved in the conviction of co-conspirators. There is no requirement that only amounts in a single defendant’s indictment or conviction may be considered in the calculation of that defendant’s base offense level. The defendants are responsible for their own conduct and as much of the conduct of their co-conspirators in furtherance of the conspiracy that they either knew about or reasonably could foresee. U.S. v. Swinney, 970 F.2d 494 (8th Cir. 1992).
8th Circuit says defendant was not accountable for drug quantity alleged in indictment. (275) Although the court agreed with the presentence report’s determination that defendant could not be tied to more than the .5 grams that he actually sold, it felt that it was bound by the jury’s verdict to give defendant a mandatory minimum sentence of 10 years for conspiring to distribute at least 50 grams of crack. The 8th Circuit reversed. Although the district court read the indictment to the jury, the generic conspiracy instruction did not require the jury to link defendant to a specific quantity of crack. The evidence did not support a determination that defendant was aware that he had joined a large-scale conspiracy. For activities of a co-conspirator to be reasonably foreseeable to a defendant, they must fall within the scope of the agreement between the defendant and the other conspirators. Simply because a defendant knows that a dealer he works with sells large amounts of drugs to other people does not make the defendant liable for the dealer’s other activities. Defendant never received any benefits from his co-conspirators’ large quantity sales and received only a few rocks for his services. Judge Gibson dissented. U.S. v. Jones, 965 F.2d 1507 (8th Cir. 1992).
8th Circuit affirms that co-conspirator’s sale of five to 15 kilograms of cocaine was foreseeable. (275) The 8th Circuit affirmed that it was reasonably foreseeable to defendant that his co-conspirator would distribute between 5 and 15 kilograms of cocaine. Defendant admitted to participating in the conspiracy, was aware of the nature and scope of the conspiracy, and knowingly joined in the overall common scheme. The facts of the case established that a “close working relationship” existed among the conspirators. U.S. v. Granados, 962 F.2d 767 (8th Cir. 1992).
8th Circuit upholds inclusion of drugs distributed by conspiracy after defendant moved to California. (275) From January to September 1987, defendant and three co-conspirators were involved in drug-related activities in Lincoln, Nebraska. In September 1987, defendant and his fiancée abruptly moved to California. At trial defendant testified that they moved to escape the drug scene in Lincoln and to avoid a debt he had incurred. After the move, he made occasional phone calls to his co-conspirators in Lincoln, but did not actively participate in the distribution of cocaine. The 8th Circuit upheld the application of the guidelines to his offense, and held him accountable for certain amounts of cocaine distributed by the conspiracy after he left for California. Conspiracy is a continuing offense, and a defendant may be sentenced under the guidelines for his participation in any conspiracy that continued past November 1, 1987, even if the defendant performed no overt act in furtherance of the conspiracy after this date. The district court found that although the exact amount of cocaine distributed after defendant’s move was not foreseeable, it was reasonably foreseeable that the conspiracy would continue to receive cocaine after defendant’s move, and that such amounts would be equal to at least three times the amounts previously transferred by the conspiracy. U.S. v. Olderbak, 961 F.2d 756 (8th Cir. 1992).
8th Circuit affirms consideration of drugs not included in indictment and sold by co-conspirator. (275) Defendant contended that the district court erred in determining the amount of drugs for which he was responsible by (a) considering the aggregate amount of drugs instead of the lesser amount charged in the indictment, (b) considering the sales of a co-conspirator, because she received drugs from and sold drugs for persons other than defendant, and (c) basing the amount of drugs on incredible testimony. The 8th Circuit affirmed the district court’s drug calculation. The sentencing court is not limited by the amount of drugs seized and may sentence according to its estimation based on trial testimony. There was sufficient evidence in the trial transcript to support the district court’s determination. U.S. v. Duckworth, 945 F.2d 1052 (8th Cir. 1991).
8th Circuit affirms consideration of drugs found in defendant’s girlfriend’s rented car. (275) The 8th Circuit upheld including in the calculation of defendant’s base offense level nine kilograms of cocaine which were seized during an inventory search of his girlfriend’s rented car. “[D]rugs handled by a co-conspirator confederate having a close association or working relationship with a defendant may be included when calculating the offense level attributable to that defendant.” Defendant and his girlfriend were partners in the drug business, living together and sharing joint bank accounts. He knew she was a courier, and visited her in jail in Iowa where the nine kilograms were found during the inventory search of the rented car. He relied upon her advice in transactions with other drug dealers. U.S. v. Beal, 940 F.2d 1159 (8th Cir. 1991).
8th Circuit affirms sentence based upon total amount of drugs in conspiracy that was foreseeable to each defendant. (275) Defendants claimed that the district court unfairly increased their sentences by considering the conduct of co-conspirators. The 8th Circuit affirmed, concluding that the district court correctly calculated defendants’ base offense level on the basis of the total amount of cocaine and crack implicated in the conspiracy that was foreseeable to each defendant. Each defendant was aware of the conspiracy and of the amount of drugs being bought and sold at their direction. The district court considered each defendant individually, gauging each defendant’s relative involvement and his or her knowledge of the quantities of drugs distributed through the drug ring. U.S. v. Payne, 940 F.2d 286 (8th Cir. 1991).
8th Circuit holds defendant need not be advised that drugs sold by co-conspirators can be considered at sentencing. (275) The 8th Circuit rejected defendant’s argument that the district court violated Fed. R. Crim. P. 11 by failing to advise him that the cocaine distributed by co-conspirators could be considered at sentencing. The amount of cocaine used to calculate defendant’s base offense level had nothing to do with Rule 11’s requirement that defendant understand the nature of the offense because the amount of cocaine involved is a matter for sentencing. U.S. v. Young, 927 F.2d 1060 (8th Cir. 1991).
8th Circuit upholds inclusion of drugs from all transactions in defendant’s offense level. (275) The district court found that defendant was involved with 5 to 14.9 kilograms of cocaine, based on 25 different drug transactions. Defendant challenged the inclusion of drugs from 10 of the transactions. The 8th Circuit upheld the district court’s calculation. In the first transaction, defendant accompanied a co-conspirator on a trip to Chicago where the co-conspirator purchased two kilograms of cocaine. The co-conspirator testified that during part of the trip, defendant carried a leather pouch which defendant knew carried cocaine. Defendant was accountable for drug transactions handled by his co-conspirator which he knew about or could reasonably foresee. In the second transaction, defendant was held accountable for cocaine sold by his co-conspirator to another individual. The fact that defendant profited from this transaction and knew about others was sufficient to show a conspiratorial involvement. Since these two transactions alone would account for defendant’s base offense level, it was not necessary for the court to consider the other eight transactions. U.S. v. Lawrence, 918 F.2d 68 (8th Cir. 1990).
8th Circuit upholds inclusion of drugs co-conspirator “fronted” to defendant’s intermediary. (275) Defendant contended that the district court improperly included, in the calculation of his offense level, three kilograms of cocaine that a co-conspirator testified he “fronted” to defendant’s intermediary. The 8th Circuit upheld the district court’s calculation. Although defendant argued that the co-conspirator was unreliable, matters of credibility are for the district court to determine. The co-conspirator’s testimony was uncorroborated, but a district court may consider uncorroborated evidence, provided the defendant is given an opportunity to rebut it. Since defendant admitted that the co-conspirator supplied defendant with cocaine through the intermediary, it was not clearly erroneous for the district court to conclude that the three kilogram transfer was reasonably foreseeable by defendant. U.S. v. Frondle, 918 F.2d 62 (8th Cir. 1990).
8th Circuit holds defendant accountable for all cocaine and crack in conspiracy with family members. (275) A conspirator may properly be held accountable for all drugs involved in a conspiracy which were known or reasonably foreseeable to the conspirator. U.S. v. Francis, 916 F.2d 464 (8th Cir. 1990).
8th Circuit upholds reliance on amounts of drugs outside the indictment. (275) Defendants argued that they should have been sentenced only on the basis of the drug amounts alleged in the indictment. Instead the district court sentenced them on the basis of cocaine delivered by others in the organization, found in the California apartment, and represented by cash and money order receipts. The 8th Circuit upheld the district court’s computation, holding that the district courts may look beyond the allegations in the indictment, and may consider quantities of cocaine which reliable evidence connects with the defendants. U.S. v. Johnson, 906 F.2d 1285 (8th Cir. 1990).
8th Circuit holds that buyer of drugs is not responsible for other amounts possessed by supplier. (275) Defendant was convicted of various drug related offenses and conspiracy to distribute drugs. At sentencing, the district court included in defendant’s base offense level 8 ounces of methamphetamine that his supplier (and co-conspirator) possessed for sale to others. The 8th Circuit reversed, holding that “[s]imple knowledge that the supplier supplies other persons is not enough .ÿ.ÿ. to assess all quantities distributed by the supplier to each person who purchased drugs from the supplier.” U.S. v. North, 900 F.2d 131 (8th Cir. 1990).
8th Circuit upholds sentence based on entire quantity of drugs found at “crack house.” (275) Defendant was found guilty of conspiracy to distribute cocaine. The search of a house used by defendant and three others to sell cocaine revealed 341 grams of cocaine, 66 grams of which defendant sold to a government informant. The district court arrived at a base offense level for defendant by using the entire quantity of drugs found at the house. The 8th Circuit rejected defendant’s argument that only drugs sold by him should be used to calculate the base offense level, citing guidelines § 1B1.3(a)(1) and the commentary to the section. The defendant was “otherwise accountable” for conduct that he could reasonably foresee or knew was in furtherance of a conspiracy, and in this case the entire quantity of drugs found were used in furtherance of a conspiracy. U.S. v. Drew, 894 F.2d 965 (8th Cir. 1990).
8th Circuit holds that conspiracy plea admits knowledge of elements of offense, and drugs specified in plea may be used to set offense level. (275) Defendant pled guilty to conspiracy to possess with intent to distribute cocaine, LSD and psilocybin mushrooms. He was also charged as an aider and abettor in the substantive counts, which alleged specific quantities. The 8th Circuit held that it was proper to set the offense level according to the aggregate quantities of cocaine, LSD and psilocybin, despite the defendant’s protestations that he had no knowledge of the LSD and psilocybin. The court held that “by pleading guilty defendant admits the material facts alleged in the charge.” Because the defendant’s guilty plea was valid, he thus admitted his knowledge of the drugs, and no further proof was required. The court noted that it would also have been proper to rely upon the quantities alleged in the dismissed counts under the relevant conduct section of the guidelines. U.S. v. Johnson, 888 F.2d 1255 (8th Cir. 1989).
8th Circuit rules consideration of drugs manufactured by coconspirators is proper in setting base offense level. (275) Defendant argued that the trial court improperly considered quantities of drugs manufactured by his co-conspirators during a period of time when he was excluded. The 8th Circuit affirmed the sentence, holding that when a defendant is convicted for a drug conspiracy, it is proper to consider the quantities of drugs possessed by his co-conspirators, even though that amount may be greater than that charged in the substantive offense. U.S. v. Holland, 884 F.2d 354 (8th Cir. 1989).
9th Circuit says jury need not find quantity was “reasonably foreseeable” when defendant was involved with all drugs in the conspiracy. (275) At the trial of defendant and his co-conspirators for conspiracy to manufacture and distribute PCP, the district court instructed the jury to determine the amount of PCP involved in defendant’s offense. The court told the jury that it must find “the amount of PCP involved in each defendant’s commission of the offense charged.” On appeal, defendant argued that the district court should have instructed the jury that it could find him liable only for the quantity of drugs that he reasonably foresaw would be distributed or manufactured by the conspiracy. The Ninth Circuit held that the reasonably foreseeable test limits a conspirator’s liability for drugs possessed by a co-conspirator, not for drugs possessed by the conspirator himself. Here, the evidence showed that defendant and his co-conspirators possessed all of the quantities of PCP that formed the basis for the charges. U.S. v. McCaleb, 552 F.3d 1053 (9th Cir. 2009).
9th Circuit holds defendant responsible for marijuana imported by accomplices. (275) Defendant and three other men were arrested together when police officers caught them carrying 142 pounds of marijuana just south of the Canadian border. At defendant’s sentencing for importation of marijuana and other offenses, he argued that his Guideline range should be set using the amount that he was personally carrying, not the total amount carried by all three men. The district court found that defendant was responsible for the entire quantity carried by the three men. The Ninth Circuit affirmed, finding that the smuggling operation was jointly undertaken criminal activity, not separate activity. U.S. v. Dallman, 533 F.3d 755 (9th Cir. 2008).
9th Circuit finds error in imposing sentence for cocaine conspiracy based on crack quantity. (275) At defendant’s sentencing for conspiring to possess and distribute cocaine, the district court calculated defendant’s sentence based on the amount of crack cocaine “involved” in the conspiracy, but did not find that defendant knew or could reasonably have foreseen that the conspiracy involved crack. The Ninth Circuit found that enhancing defendant’s sentence based on the court’s finding of the amount of crack involved in the offense therefore violated Apprendi. It vacated defendant’s sentence with instructions to base his sentence on the amount of powder cocaine involved in the offense. U.S. v. Lococo, 511 F.3d 956 (9th Cir. 2008).
9th Circuit holds Apprendi applies to drug quantity attributable to each conspirator if it increases statutory maximum. (275) Defendant pleaded guilty to drug conspiracy. At his change-of-plea hearing, he conceded that the conspiracy involved at least 1000 kilograms of marijuana, but argued that he was not responsible for the full amount for sentencing purposes. He also argued that under Apprendi, the amount of marijuana attributable to him had to be found beyond a reasonable doubt. Nevertheless, the district court found him responsible for more than 1000 kilos by a preponderance of the evidence. The Ninth Circuit reversed, holding that when a finding concerning the quantity of drugs that a conspirator reasonably foresaw exposes him to a higher statutory maximum that he otherwise would face, that finding must be made by a jury, or, in the case of a guilty plea, by the court beyond a reasonable doubt. U.S. v. Banuelos, 322 F.3d 700 (9th Cir. 2003).
9th Circuit reverses for lack finding that defendant could foresee all marijuana found in trailer. (275) Although defendant pled guilty only to offenses involving 100 kilograms of marijuana, the district court held him responsible at sentencing for all 800 pounds of marijuana found in the trailer. The Ninth Circuit reversed, noting that the presentence report did not say why defendant was accountable for the full amount of marijuana in the trailer. While “the sentencing court may adopt factual findings of the presentence report,” a district court “may not adopt . . . conclusory statements unsupported by the facts or the Guidelines.” U.S. v. Becerra, 992 F.2d 960, 966 (9th Cir. 1993). The case was remanded to the district court to make appropriate findings as to what amount the defendant could “reasonably foresee.” U.S. v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000).
9th Circuit reverses for failure to find that drug conspirator reasonably foresaw all the transactions. (275) The relevant conduct guideline, § 1B1.3 provides that in the case of a conspiracy, the base offense level is determined on the basis of “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” Here, the presentence report found defendant accountable for four kilograms of methamphetamine based on $70,000 cash received by a co-defendant in over sixty transactions between November 1994 and early 1997. Only fourteen of the transaction involved defendant and twenty-four involved two other co-conspirators. The district court based the sentence on four kilograms, but made no reference to the presentence report and failed to find that defendant reasonably foresaw all the transactions. The Ninth Circuit found it unnecessary to consider whether defendant properly objected to the findings in the presentence report, “[b]ecause reversal is warranted under plain error review as well as de novo review.” U.S. v. Seesing, 234 F.3d 456 (9th Cir. 2000).
9th Circuit says “schoolyard” guideline cannot be selected based on “relevant conduct.” (275) In U.S. v. Crawford, 185 F.3d 1024, 1026-29 (9th Cir. 1999), the Ninth Circuit held that a defendant convicted under 21 U.S.C. § 841(a) could not receive an enhanced sentence under the “schoolyard” guideline, § 2D1.2, because selling drugs within a 1,000 feet of a school is not an element of the § 841(a) offense. However, the defendant in this case was also convicted of conspiracy under 21 U.S.C. § 846. Appendix A of the Guideline Manual says § 2D1.2 is one of several guidelines which may apply to a conspiracy conviction under § 846. However, the indictment here failed to allege that an object of the conspiracy was to distribute drugs near a school. Accordingly, the most applicable offense guideline was § 2D1.1, and defendant’s sentence under § 2D1.2 was reversed. The panel reiterated its statement in U.S. v. Lawton, 193 F.3d 1087, 1094 (9th Cir. 1999) that “relevant conduct may not be used to select a guideline under § 1B1.2.” U.S. v. Takahashi, 205 F.3d 1161 (9th Cir. 2000).
9th Circuit finds marijuana backpackers were not in a “joint criminal activity.” (275) The defendants were individually recruited in Mexico to carry a backpack of marijuana into the United States for $800. When they arrived at the house, they discovered that six persons had shown up. The six were immediately taken to a location in the desert where a guide awaited them. They followed the guide across the border for two days before they were discovered by the border patrol. The guide and three others fled, so only three defendants were convicted. At sentencing, the district court relied on Commentary Example 8 to § 1B1.3 to find that the defendants were not in a “jointly undertaken criminal activity,” and therefore each defendant was responsible only for the amount of marijuana he personally carried. The government appealed and the Ninth Circuit affirmed, finding nothing to indicate that the defendants coordinated their importation efforts or aided and abetted each other’s actions. U.S. v. Palafox-Mazon, 198 F.3d 1182 (9th Cir. 2000).
9th Circuit remands for failure to determine the scope of defendant’s agreement. (275) The district court failed to determine the scope of defendant’s agreement with his co-conspirators before sentencing him on the basis of all the conspiracy’s drug sales during the period of his participation. Although defense counsel did not object, the Ninth Circuit held that the error was “plain” because “[i]f the district court were to conclude that for much of the fifteen months the scope of [defendant’s] agreement was limited to his own sales, then the drug quantity attributable to [defendant] would probably drop enough to lower his offense level and sentencing range.” Because his substantial rights may have been affected and the fairness of his sentence was in question, the case was remanded for resentencing. U.S. v. Garcia-Sanchez, 189 F.3d 1143 (9th Cir. 1999).
9th Circuit finds defendant knew conspiracy involved a half ounce of cocaine and he did not withdraw from it. (275) Potts gave defendant enough money to buy a half-ounce of crack cocaine and told him to “make it hard” and to get “separate containers for the two 7’s,” in other words to get two packages each containing seven grams of crack cocaine. At that point, defendant clearly knew the scope of the conspiracy. By taking the money and going into the apartment to purchase the half-ounce of crack cocaine, he agreed to participate in that conspiracy. Defendant did not withdraw from the conspiracy even though he was taken back to the co-conspirator’s home after he was unable to purchase drugs at his brother’s house. The Ninth Circuit found that he “did not withdraw from the conspiracy, he just completed his role in it.” U.S. v. Fox, 189 F.3d 1115 (9th Cir. 1999).
9th Circuit finds cocaine in co-defendant’s house was foreseeable to defendant. (275) Defendant argued that it was plain error for the court to attribute to him all of the cocaine found at the co-defendant’s home because the co-defendant was not his cocaine supplier and only told him where to sell and referred buyers to him. However, defendant did not object at sentencing to the quantity used to establish his base offense level. The district court found that possession of that quantity was foreseeable by defendant and fell within the scope of the conspiracy to which he pleaded guilty. The Ninth Circuit found no plain error. U.S. v. Williams, 185 F.3d 945 (9th Cir. 1999).
9th Circuit requires higher sentence for conspiracy with more than one object. (275) Guideline section 1B1.2(d) says that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense the defendant conspired to commit.” Defendant argued that this guideline was unconstitutional based on dicta in U.S. v. Garcia, 37 F.3d 1359, 1371 n.4 (9th Cir. 1994), which suggested that the object of the conspiracy was an essential element that could only be found by the jury. The Ninth Circuit held that recent Supreme Court precedent appears to defeat this argument. In Edwards v. U.S., 118 S.Ct. 1475, 1477 (1998), the Supreme Court held that as long as the sentencing court does not exceed the maximum statutory sentence (based on the lesser object offense) of a multi-object conspiracy conviction, the court may consider conduct for which the defendant was never charged or was acquitted. Defendant’s argument that § 1B1.2(d) violated her Sixth Amendment right to a jury trial was unconvincing in light of Griffin v. U.S., 502 U.S. 46 (1991), which held that a general guilty verdict on a multiple-object conspiracy was legally supportable if the jury could find that at least one of the objects supported the conspiracy charge. No due process violation occurs because § 1B1.2(d) requires the sentencing court to apply a “beyond a reasonable doubt” standard of proof to determine the objects of the conspiracy. U.S. v. Jackson, 167 F.3d 1280 (9th Cir. 1999).
9th Circuit reverses drug quantities that were not foreseeable and not part of joint activity. (275) Defendant sold a small amount of methamphetamine to an undercover officer. The next day defendant made another sale to the officer, and this time defendant’s friend, Lineberry, was present. A month later, Lineberry sold the undercover agent much larger amounts of methamphetamine and cocaine on four different occasions. Defendant was not present at these later sales. Nevertheless, Lineberry testified that he would not have sold drugs to the agent if the defendant had not introduced them. The agent eventually seized substantial amounts of meth, cocaine and marijuana from Lineberry’s residence. Defendant was convicted of conspiracy, and at sentencing, the district court held him responsible for all of the drugs sold by Lineberry. On appeal, the Ninth Circuit reversed because the district court made no findings that the amounts sold by Lineberry were reasonably foreseeable to defendant. Nor was there sufficient evidence that Lineberry’s sales were in furtherance of the jointly undertaken criminal activity as required by the “relevant conduct” section of the guidelines, § 1B1.3. The district court did not explicitly adopt the presentence report and even if it had, there was nothing in the report to explain why defendant should be held responsible for Lineberry’s drug sales. Defendant was not paid any profit from these sales and had no contact with the drugs or the money. U.S. v. Whitecotton, 142 F.3d 1194 (9th Cir. 1998).
9th Circuit does not require “foreseeability” finding unless conspirator’s role was limited. (275) Defendant argued that the district court failed to make a finding as to the quantity of drugs foreseeable by her within the scope of the conspiracy. Under U.S. v. Petty, 982 F.2d 1374 (9th Cir.), amended, 992 F.2d 887 (1993), such a finding is necessary if the participants play different roles and enter the conspiracy at different times. However in this case defendant was a full participant in the conspiracy, so she was responsible for all of the drugs that could have been produced from the chemicals found in the van lab. U.S. v. Lightbourne, 104 F.3d 1172 (9th Cir. 1997).
9th Circuit vacates sentence for failure to decide scope of defendant’s agreement. (275) In this methamphetamine manufacturing case, the district court sentenced one defendant for the total amount of drugs in the conspiracy without making a finding as to the amount of drugs he reasonably foresaw as being part of the conspiracy or within the scope of the agreement he entered. Such findings are required by the sentencing guidelines and were conspicuously absent here. Accordingly, defendant’s sentence was vacated and the case was remanded with instructions to make express factual findings as to the amount of drugs involved in the conspiracy specifically attributable to this defendant. U.S. v. Gutierrez-Hernandez, 94 F.3d 582 (9th Cir. 1996).
9th Circuit says conduct in furtherance of conspiracy was reasonably foreseeable. (275) Defendants argued that they were sentenced for quantities of drugs that were not reasonably foreseeable to them. The Ninth Circuit ruled that the question of whether conduct in furtherance of a conspiracy was reasonably foreseeable is a factual finding reviewed for clear error. In U.S. v. Diaz-Rosas, 13 F.3d 1305, 1308 (9th Cir. 1994) the court held that a defendant who is guilty of conspiracy to possess and distribute cocaine may properly be held accountable for any cocaine possessed or distributed by the conspirators, as long as that cocaine was foreseeable to him. It is not necessary that the defendant personally possess all of the cocaine for which he is held accountable. Here, the court upheld the district court’s finding that all of the marijuana distributed was foreseeable to the defendants. U.S. v. Bauer, 84 F.3d 1549 (9th Cir. 1996).
9th Circuit holds defendant accountable for all drugs in conspiracy (275) Defendant argued that the amount of drugs on which his sentence was based was not supported by the facts. The Ninth Circuit found that the evidence showed that he was “heavily inolved in and intimately familiar with the drug distribution conspiracy.” Thus the district court did not err in finding that all of the drugs in the conspiracy were within the “scope” of defendant’s agreement with his co-conspirators. U.S. v. Bracy, 67 F.3d 1421 (9th Cir. 1995).
9th Circuit holds defendant accountable for drugs he possessed regardless of foreseeability. (275) In U.S. v. Becerra, 992 F.2d 960 (9th Cir. 1993), the Ninth Circuit held that a defendant is responsible for the amount of drugs possessed by a coconspirator only if that amount was reasonably foreseeable to the defendant. Clarifying that ruling, the Ninth Circuit noted that Becerra involved conspiracy alone, not possession. With regard to possession, the court held that “a defendant is responsible for the total amount of drugs in his own possession, regardless of whether the amount was foreseeable.” The Second Circuit in U.S. v. Velasquez, 28 F.3d 2 (2d Cir.), cert. denied, 115 S.Ct. 679 (1994) has adopted the same rule. U.S. v. Mesa-Farias, 53 F.3d 258 (9th Cir. 1995).
9th Circuit finds co-conspirator had different understanding of drug quantity to be purchased. (275) Defendant and his co-conspirator negotiated to buy cocaine from an undercover agent. The district court found that the defendant agreed to buy five kilos, but his codefendant understood the agreement to involve only two. On appeal, defendant argued that in a conspiracy involving only two conspirators, the two cannot have an agreement to buy different quantities of drugs. The Ninth Circuit rejected the argument, noting that under the Guidelines’ “relevant conduct” section, 1B1.3, the court must determine the scope of each co-conspirator’s agreement. On the facts of this case, the court could properly find that defendant’s coconspirator “understood the conspiracy to involve a lesser quantity of cocaine.” U.S. v. Naranjo, 52 F.3d 245 (9th Cir. 1995).
9th Circuit upholds quantity of drugs attributable to the defendant in conspiracy. (275) Defendant argued that the district court erred in finding that he was a member of the conspiracy for six months and speculating as to the amount of drugs attributable to him. Reviewing the district court’s factual findings for clear error, the Ninth Circuit affirmed. There was evidence that defendant was involved for six months, and the district court expressly found that defendant significantly contributed to the production of the methamphetamine attributed to him. Defendant failed to present any evidence suggesting that the district court should have deducted some indeterminate amount of drugs which were for the personal use of the conspirators. U.S. v. Vaandering, 50 F.3d 157 (9th Cir. 1995).
9th Circuit requires “foreseeability” finding in calculating drugs for statutory minimum. (275) In U.S. v. Castaneda, 9 F.3d 761, 769 (9th Cir. 1993), the Ninth Circuit held that under the statutory minimum provisions of 21 U.S.C. § 841(b), the court must “assess a defendant’s ‘individual . . . level of responsibility’ for the amount of drugs involved in an offense by determining, in accord with the guidelines, the amount that the defendant ‘could reasonably foresee . . . would be involved’ in the offense of which he was guilty.” (quoting U.S. v. Becerra, 992 F.2d 960, 967 n.2 (9th Cir. 1993). Here, the district court erred in failing to make this determination. However, the error was harmless because, if this were a guidelines case, guideline § 1B1.3, Application Note 2, Illustration (a)(1), would have required the judge to find defendant responsible for all the marijuana in the van in which defendant was a passenger. U.S. v. Nunez-Carreon, 47 F.3d 995 (9th Cir. 1995).
9th Circuit finds defendant could foresee amount of drug cash in car. (275) Defendant argued that the government failed to demonstrate that he either knew of or could reasonably have foreseen the $22,430 in cash seized from a vehicle used by the conspiracy or the drug transactions that generated it. But in a tape-recorded conversation, defendant was overheard discussing the fact that the government seized “twenty-three” from the car, indicating that the defendant knew there was about $23,000 in the car. On the basis of this and other evidence, the district court did not err in finding that the cash in the car was related to drug transactions and that defendant knew of such transactions and could readily have foreseen them. U.S. v. Pena-Espinoza, 47 F.3d 356 (9th Cir. 1995).
9th Circuit finds defendant was aware of entire scope of methamphetamine operation. (275) Defendant argued that the district court failed to make a factual finding regarding the amount of methamphetamine which was within the scope of his agreement to manufacture or was reasonably foreseeable to him. The 9th circuit found the argument meritless. Unlike U.S. v. Conkins, 9 F.3d 1377, 1386 (9th Cir. 1993) all of the evidence here was found at the scene of the lab from which defendant was seen exiting. Therefore, “there was evidence that defendant was aware of the entire scope of the operation, rather than being just an actor in one phase of a larger operation.” U.S. v. Hanoum, 33 F.3d 1128 (9th Cir. 1994).
9th Circuit says courier who smuggled heroin with another courier was responsible for total amount. (275) The two couriers became aware of each other by the time they got to Nigeria where they picked up the heroin. The court found that each of their drug courier activities furthered their jointly undertaken criminal activity and were reasonably foreseeable. On appeal, the 9th Circuit affirmed, noting that their conduct was analogous to the example of couriers backpacking marijuana across the border together in U.S.S.G. § 1B1.3, commentary note 2(c)(8). U.S. v. Ogbuehi, 18 F.3d 807 (9th Cir. 1994).
9th Circuit remands for findings as to which marijuana shipments were reasonably foreseeable. (275) Under Application Note 1 to section 1B1.3, the sentencing court may only sentence a defendant for relevant conduct that was reasonably foreseeable in the criminal activity the defendant agreed to undertake jointly. Here, defendants were involved in no more than three or four of the alleged twenty-six marijuana smuggling trips in the larger conspiracy. A finding that the scope of their agreement was limited to the trips they actually made could reduce the mandatory minimum sentence from ten to five years. The district court’s general and conclusory statements fell short of the specificity required by section 1B1.3. The case was remanded to the district court to determine by a preponderance of the evidence whether the scope of the defendants’ agreement to import and distribute marijuana extended beyond the shipments in which they were directly involved. U.S. v. Conkins, 9 F.3d 1377 (9th Cir. 1993).
9th Circuit holds sentence is controlled by amount of drug imported, not what defendant believed. (275) Defendant, a customs officer, pled guilty to conspiracy to import a controlled substance and official corruption based on his acceptance of bribes for allowing vehicles containing drugs to enter the United States through his inspection lane. The district court imposed sentence based on the quantity of cocaine that passed through the inspection lane. Defendant argued that the cocaine should be disregarded because he neither knew nor had any reasonable expectation of the importation of any drug other than marijuana. The Ninth Circuit rejected the challenge finding that because defendant personally undertook to pass the drug laden vehicles through the check point, he was responsible for the drugs that came through even if he did not know what they were. The concept of “foreseeability” within the meaning of the relevant conduct guideline does not apply to conduct that the defendant personally undertakes. U.S. v. Salazar, 5 F.3d 445 (9th Cir. 1993).
9th Circuit says relevant conduct must show similarity, regularity and temporal proximity. (275) Defendant argued that amounts of methamphetamine in her prior drug arrests should not have been considered in determining her base offense level. The 9th Circuit agreed, relying on its decision in U.S. v. Hahn, 960 F.2d 903, 907 (9th Cir. 1992), which held that before such prior acts can constitute “relevant conduct” under section 1B1.3(a)(2), the government must show, in “sufficient proportions,” the similarity, regularity and temporal proximity of the prior acts to defendant’s conduct here. Since the record did not contain the required findings, the sentence was vacated. U.S. v. Soyland, 3 F.3d 1312 (9th Cir. 1993).
9th Circuit finds codefendant’s operations in Texas were reasonably foreseeable. (275) The district court found defendant had knowledge of Orantes-Ariaga’s operations in Texas based on his presence in Texas in November, 1989. This, along with all the other evidence linking him with the conspiracy was sufficient to show that the Texas activities were reasonably foreseeable to him, and to attribute the amount of heroin distributed in Texas to him. U.S. v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993), implied overruling recognized by U.S. v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007).
9th Circuit holds defendant responsible for heroin sold after his arrest. (275) Although Plancarte-Rea was arrested in May 1990, he was properly held responsible for subsequent transactions because there was no showing that he disavowed the conspiracy. The 9th Circuit said this was especially true because he was not merely a minor participant but played a managerial role in the conspiracy and had a close relationship with the major defendant. The district court properly calculated his offense level based on 267.9 kilograms. U.S. v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993), implied overruling recognized by U.S. v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007).
9th Circuit limits drug conspirator’s liability to amount he agreed to distribute. (275) The guidelines say that defendant who is hired only to offload a single shipment of marihuana is not accountable for prior or subsequent shipments of marihuana because those acts are “not in furtherance of his jointly undertaken criminal activity. See guideline section 1B1.3, Application Note 1, illustration (e) [now illustration (c)(3) in the November 1, 1992 Guidelines]. Relying on this illustration and the 7th Circuit’s opinion in U.S. v. Thompson, 944 F.2d 1331, 1343-44 (7th Cir. 1991), the 9th Circuit vacated the sentences in this case and remanded to determine (1) the quantity of drugs distributed that were reasonably foreseeable by each conspirator and (2) the quantity of drugs distributed that were within the scope of the particular agreement that each defendant entered. The court noted that one defendant could not have “foreseen” the drugs distributed before he joined the conspiracy. The other defendant may not have foreseen the drug transactions of his competitor who also supplied drugs. U.S. v. Petty, 982 F.2d 1374 (9th Cir. 1992). (Noonan, J.)
9th Circuit remands for express finding of quantity attributable to conspirator. (275) Defendant was one of five co-conspirators convicted of conspiracy to possess with intent to distribute cocaine and heroin. The conspiracy involved five separate transactions but the uncontroverted evidence supported the conclusion that defendant had nothing to do with the conspiracy after the initial sale. Because the district court did not make the factual determination of the amount of drugs attributable to the defendant under the relevant conduct section 1B1.3, the sentence was vacated. On remand the district court must make express findings regarding defendant’s culpability for each transaction affecting his offense level. The court may adopt the findings of the presentence report, but may not adopt conclusory statements unsupported by the facts or the guidelines. U.S. v. Navarro, 979 F.2d 786 (9th Cir. 1992).
9th Circuit says leniency toward co-conspirator did not bar sentencing defendant for all the heroin. (275) Three of defendant’s co-defendants transported heroin from Nigeria by carrying it in their digestive tracts. The defendant was convicted on being involved in a conspiracy with the three. In sentencing one of the couriers, the district court took into consideration only the amount of heroin he actually carried, because it found that he was unaware of the heroin smuggled by the other two. The 9th Circuit held that the fact that the court exercised leniency in sentencing the courier did not preclude it from finding that defendant was accountable for the amount of heroin possessed by all the members of the conspiracy. The evidence showed that the defendant was a knowing participant throughout the conspiracy. U.S. v. Egbuniwe, 969 F.2d 757 (9th Cir. 1992).
9th Circuit holds that defendant reasonably foresaw brother’s heroin sales. (275) Defendant pleaded guilty to one sale of heroin and two other sales by his brother were included as relevant conduct for sentencing. Approximately five months before his arrest defendant accompanied his brother to two meetings where heroin was sold to an agent. Shortly before his arrest, he drove a car to pick up his brother from a meeting where a heroin sale was negotiated. The car was registered to a person who had recently been arrested for selling heroin. Based on these facts, the 9th Circuit upheld the district court’s finding that defendant either personally participated in his brother’s two sales or reasonably foresaw them. U.S. v. Sanchez, 967 F.2d 1383 (9th Cir. 1992).
9th Circuit reverses drug amounts in relevant conduct for lack of finding of reasonable foreseeability. (275) Under the “relevant conduct” section, 1B1.3(a)(2), a defendant is responsible for amounts of drugs that he could have “reasonably foreseen” in furtherance of a joint agreement. Here, there was nothing in the presentence report to indicate that defendant aided and abetted any drug sales before June 28, 1990 or was a member of a conspiracy prior to that date. The district court apparently thought that relevant conduct should include the amounts in all of the counts of the indictment. Since the court made no factual findings as to defendant’s involvement in the distribution of cocaine prior to June 28, 1990, the sentence was reversed and the case was remanded for express findings. U.S. v. Chavez-Gutierrez, 961 F.2d 1476 (9th Cir. 1992).
9th Circuit holds that minor participant was not accountable for drugs distributed after arrest. (275) Application note 1 to U.S.S.G. section 1B1.3 notes that “relevant conduct is not necessarily the same for every participant.” Thus even though as a general rule, the fact that a conspirator is taken into custody does not automatically indicate disavowal of the conspiracy, the defendant here was only a “minor” participant. “Once in custody, she was in no position to continue her role as a drug distributor. Thus the 9th Circuit held that it “stretches a legal fiction to the breaking point to hold her accountable for the drugs . . . distributed after May 20, 1989.” U.S. v. Johnson, 956 F.2d 894 (9th Cir. 1992), superseded on other grounds by Guideline as stated in U.S. v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004).
9th Circuit, en banc, upholds relevant conduct section of guidelines. (170) The original panel opinion in this case, U.S. v. Restrepo, 883 F.2d 781 (9th Cir. 1989), held 2-1 that the relevant conduct section of the guidelines, § 1B1.3, conflicted with the multiple count section, and therefore the district court erred in aggregating “quantities of drugs in counts of which Restrepo was convicted with quantities . . . of which [he] was neither charged not convicted.” Id. At 786. On rehearing, the court changed its mind, and a new 2-1 opinion was filed upholding the relevant conduct section, ruling that aggregation of drug amounts “reflects the balance struck by the Sentencing Commission between a ‘real offense’ sentencing system . . .and a ‘charge offense’ system.” 903 F.2d 648, 653 (9th Cir. 1990). The full court then granted rehearing en banc, and agreed with the new panel opinion, ruling that relevant conduct could be proved at sentencing by a preponderance of the evidence. U.S. v. Restrepo, 946 F.2d 654 (9th Cir. 1991) (en banc).
9th Circuit upholds drug sentence based upon quantity of final product even if it could not have been produced during the conspiracy. (275) Guideline § 2D1.4(a) requires the district court to apply an offense level “as if the object of the conspiracy . . . had been competed.” Defendant argued that the 200 kilograms of phenylacetic acid could not have been used to produce the claimed quantity of methamphetamine within the time frame of the conspiracy alleged in the indictment. The 9th Circuit rejected this argument, holding that “a conspiracy to achieve a result is distinct from the result itself.” The fact that the conspiracy took place within a certain time period “does not mean that the result must fall within the same time period.” “The district court properly considered the quantity of drugs as though the object of the conspiracy, distinct from the conspiracy itself, was completed. It is irrelevant when that completion might have occurred.” U.S. v. Aichele, 941 F.2d 761 (9th Cir. 1991).
9th Circuit holds that defendant was responsible for marijuana plants grown by his neighbor. (275) Evidence showed that defendant’s neighbor was involved in a marijuana growing operation with the defendant. The neighbor stated that the defendant had instructed him on growing methods and had delivered money to finance the operation. Thus the district court’s conclusion that the marijuana plants grown by the neighbor were part of the same course of conduct or common scheme or plan as defendant’s own growing operation was not clearly erroneous. U.S. v. Motz, 936 F.2d 1021 (9th Cir. 1991).
9th Circuit upholds calculating offense level based on all drugs handled by conspiracy. (275) The trial court found that both defendants were members of the conspiracy at the time of the 75 kilogram cocaine transaction. Therefore the 9th Circuit held that this transaction was properly included in calculating their base offense level under § 2D1.4, commentary, note 1 (1988). U.S. v. Torres-Rodriguez, 930 F.2d 1375 (9th Cir. 1991).
9th Circuit holds that firearm in car was connected with the drug offense, and its presence was “reasonably foreseeable.” (275) Defendant was present in the car when his codefendant delivered 17 kilograms of cocaine to an undercover officer. Officers found a loaded 38 caliber handgun under the front floormat by the driver’s seat. The 9th Circuit held that this handgun was “connected with the offense,” within the meaning of § 2D1.1(b)(1) and that its possession could be attributed to the defendant, through § 1B1.3(a)(1), the commentary to which provides that a defendant is accountable for others undertaken in furtherance of the conspiracy that was “reasonably foreseeable by the defendant.” Noting that “trafficking in narcotics is very often related to the carrying and use of firearms,” the 9th Circuit held that “in light of the large amount of drugs involved in this case, [the codefendants] possession of the gun was reasonably foreseeable.” U.S. v. Garcia, 909 F.2d 1346 (9th Cir. 1990).
9th Circuit upholds sentence based on amount of drugs negotiated by co-conspirator. (275) Defendant pled guilty to conspiracy. U.S.S.G. § 2D1.4 provides: “If a defendant is convicted of a conspiracy, the offense level shall be the same as if the object of the conspiracy .ÿ.ÿ. had been completed.” The Commentary explains that “the weight under negotiation in an uncompleted distribution shall be used to calculate the appropriate amount.” Accordingly, the 9th Circuit upheld the district court’s reliance on the 500 grams which the informant agreed to purchase from the defendant’s co-conspirator, “regardless of the amount of cocaine actually delivered.” U.S. v. Alvarez-Cardenas, 902 F.2d 734 (9th Cir. 1990).
9th Circuit holds that only drug sales in furtherance of the conspiracy to which defendant pled guilty could be considered in sentencing. (275) The government argued that any sales after the defendant’s withdrawal from the conspiracy could be considered for sentencing purposes as “relevant conduct.” The 9th Circuit rejected the argument noting that the relevant conduct section must be read in conjunction with section 2D1.4, which by its explicit terms, limits the sentencing court’s consideration of a defendant’s conduct to that conduct which was in “furtherance of the conspiracy and was known to the defendant or was reasonably foreseeable.” Thus the district court erred by calculating defendant’s base offense level on the basis of his cocaine sales without finding that the sales were in furtherance of the conspiracy for which he was convicted. The courts failure to make such a finding violated Fed. R. Crim. P. 32(c)(3)(D)(ii) and required remand for resentencing. U.S. v. Turner, 898 F.2d 705 (9th Cir. 1990).
10th Circuit holds that court did not “double count” drugs seized by police. (275) In calculating defendant’s offense level, the court held him responsible for the conduct of his co-defendants and found that his relevant conduct was between five and 15 kilograms of methamphetamine. The Tenth Circuit affirmed, finding that the record supported this finding without any chance of impermissible double counting. Delgado testified that he observed defendant obtain a pound of methamphetamine from one apartment and another pound from a house. Delgado and another conspirator retrieved about six pounds of methamphetamine from a station wagon with Arizona plates. Defendant agreed to deliver four pounds of methamphetamine to an undercover DEA agent. The court’s decision to hold defendant accountable for the amount of methamphetamine distributed by his co-defendants was not clearly erroneous in light of the court’s finding that all the co-defendants were in town for the sole purpose of distributing methamphetamine. U.S. v. Topete-Plascencia, 351 F.3d 454 (10th Cir. 2003).
10th Circuit upholds consideration of drugs distributed by co-conspirators. (275) Defendant argued that the district court erroneously considered at sentencing drugs distributed by co-conspirators, even though defendant was not convicted (or even acquitted) of the substantive offense of distributing the drugs on those occasions. The Tenth Circuit upheld the use of co-conspirator conduct. Relevant conduct includes reasonably foreseeable acts of co-conspirators in furtherance of their conspiracy. “Drug quantities associated with illegal conduct for which a defendant was not convicted are to be accounted for in sentencing, if they are part of the same conduct for which the defendant was convicted.” U.S. v. Mendez-Zamora, 296 F.3d 1013 (10th Cir. 2002).
10th Circuit directs court to make more particularized findings on scope of conspiracy. (275) Defendant and numerous others were involved in a conspiracy to distribute crack cocaine. The district court held defendant accountable for a kilogram of cocaine seized from the leader of the conspiracy at the airport. The court found that since defendant had been active in the conspiracy and involved in the distribution, “he had conspiratorial responsibility.” Although the leader testified that this kilogram was intended for another conspirator, and defendant was not involved with the transaction, the court stated that the cocaine was to be distributed through the conspiracy. The Tenth Circuit remanded for further factual findings. The district court must make particularized findings which are supported in the record about the scope of defendant’s agreement and about whether this kilogram of cocaine was reasonably foreseeable to him. The scope of the agreement and reasonable foreseeability are independent and necessary elements of relevant conduct under § 1B1.3(a) (1)(B). U.S. v. Green, 175 F.3d 822 (10th Cir. 1999).
10th Circuit says wire transfer showed drug purchase was part of conspiratorial agreement. (275) Defendant, his mother, and brother were involved together in a drug distribution conspiracy. The district court based defendant’s sentence on a total of 108 grams of methamphetamine: an estimated 80 grams from defendant’s 1997 trip to California, and another 28 grams from his mother’s February 1997 trip to California. Evidence at sentencing showed that on February 23, 1997, defendant had wired $898 to his mother in California. The Tenth Circuit found that the wire transfer supported holding defendant accountable for the 28 grams purchased by his mother. The wire transfer permitted an inference of a conspiratorial agreement as to the drugs his mother purchased on that trip. U.S. v. Vaziri, 164 F.3d 556 (10th Cir. 1999).
10th Circuit follows Edwards, holding that judge determines whether crack was involved. (275) Defendant was convicted of a cocaine powder and crack conspiracy. He argued that because the general verdict did not designate the particular objects of the conspiracy, the court should have presumed that the jury found him guilty only of a conspiracy involving cocaine powder. The Tenth Circuit ruled that under the Supreme Court’s recent decision in Edwards v. U.S., 118 S.Ct. 1475 (1998), the sentencing judge was authorized to determine for sentencing purposes whether crack was involved in the conspiracy. Regardless of the jury’s actual or assumed beliefs about the conspiracy, the guidelines require the judge to determine whether the controlled substances consisted of cocaine, crack, or both. The judgment clearly recited that the court adopted the factual findings and guideline application in the PSR. U.S. v. Bell, 154 F.3d 1205 (10th Cir. 1998).
10th Circuit finds foreseeable amount in conspiracy by dividing money owed by marijuana’s price per pound. (275) Defendant was an attorney who lied on behalf of a drug dealer client by telling two men to whom the client owned drug money that the client had been arrested. He was convicted of drug conspiracy charges. Defendant argued that the district court improperly based his sentence on a quantity of marijuana that was not reasonably foreseeable to him. The Tenth Circuit upheld the court’s decision to hold defendant responsible for 61.8 pounds of marijuana of the total 200 pounds that the two men fronted to the client. At the time the client contacted defendant, the client told defendant he owed the men $34,000 out of an original debt of $110,000 for 200 pounds of marijuana. Thus, defendant knew that at least $34,000 worth of marijuana was involved. Dividing the original debt of $110,000 by 200 pounds of marijuana, the court found a per pound price of $550. Dividing the $34,000 by $550, the court reached an amount of 61.8 pounds. This analysis was rational. U.S. v. Johnston, 146 F.3d 785 (10th Cir. 1998).
10th Circuit attributes 12 kilograms to defendant despite admission to only 10. (275) Defendant testified that he was involved in distributing 9 1/2 to 10 pounds of methamphetamine. Government witnesses testified that 27 pounds were attributable to defendant. The district court, making adjustments for the witnesses’ credibility, attributed 12 kilograms of methamphetamine to defendant. The Tenth Circuit affirmed. In calculating a defendant’s sentence in a drug conspiracy, the district court is not limited to the amount with which the defendant dealt personally. Instead, the court may base the sentence on the total amount of drugs “which he reasonably foresaw or which fell within the scope of his particular agreement with the conspirators.” U.S. v. Cruz-Camacho, 137 F.3d 1220 (10th Cir. 1998).
10th Circuit finds defendant could foresee converting pure drugs to street drugs. (275) Defendant delivered 24 ounces of pure heroin to the operator of a heroin distribution ring. The district court interpreted the commentary in note 10 to § 2D1.1 of the 1988 guidelines to require the conversion of pure drugs to the quantity to be sold at the street level. Accordingly, the court multiplied the 24 ounces by 7, the number of times the drug was to be cut for resale, to reach a figure of 168 ounces. In a § 2255 motion, defendant argued that his counsel’s failure to challenge this conversion was ineffective assistance. The Tenth Circuit held that the guidelines do not require the conversion of pure drugs, but defendant could be held responsible for the quantity to be sold at retail as relevant conduct. In a drug conspiracy case, a defendant is responsible for conduct in furtherance of the conspiracy that was reasonably foreseeable. The district court found that the later drug sales were a foreseeable result of his drug sales and were well within the scope of his agreement to provide heroin for subsequent distribution. Under these circumstances, defendant’s attorney had little to gain by raising the multiplier issue on appeal. Rogers v. U.S., 91 F.3d 1388 (10th Cir. 1996).
10th Circuit holds defendant accountable for entire quantity he aided and abetted without regard to foreseeability. (275) Defendant helped a drug organization murder a man they believed had stolen 91 kilograms from the organization. Defendant disputed the court’s finding that he was responsible for 91 kilograms, arguing that there was no evidence that he knew or could reasonably foresee that the stolen drugs weighed 91 kilograms. The Tenth Circuit held that defendant was responsible for all acts he committed, aided and abetted without regard to foreseeability. Defendant was aware that the purpose behind the planned kidnapping and murder was the recovery of a quantity of drugs. The fact that he did not know the exact amount was irrelevant; defendant was an active participant in a conspiracy to recover and distribute 91 kilograms of cocaine. Thus, this amount was properly attributable to him. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit rejects guideline procedure for conspiracies with multiple objects. (275) Section 1B1.2(d) provides that a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense. Under note 5, this section is only applied if the court, sitting as the trier of fact, would have convicted the defendant of conspiring to commit the object offense beyond a reasonable doubt. The Tenth Circuit said this procedure violates the Fifth and Sixth Amendment by taking this issue away from the jury and placing it in the hands of the judge. Nevertheless, the court found the record in this case was sufficiently clear that defendant intended to plead guilty to conspiracy to distribute cocaine base. In his plea agreement, defendant acknowledged that the government was aware of 5-15 kilograms of cocaine base attributable to him. During his testimony at the trial of his co-conspirators and during the plea hearing he repeatedly admitted that he had conspired to distribute crack cocaine. Accordingly, his sentence was affirmed. U.S. v. Bush, 70 F.3d 557 (10th Cir. 1995).
10th Circuit says drugs distributed by conspiracy during incarceration were foreseeable. (275) Defendant argued that drugs distributed by his conspiracy while he was in federal custody on unrelated charges were not foreseeable to him. The Tenth Circuit disagreed, holding that the quantities distributed during defendant’s incarceration were foreseeable to him because he organized and directed the distribution scheme and continued “in the endeavors of the conspiracy during [the] period of incarceration.” U.S. v. Edwards, 69 F.3d 419 (10th Cir. 1995).
10th Circuit estimates drug quantity based on conspirator’s ledger and calendar. (275) Defendants were involved in a several-tiered methamphetamine conspiracy. The district court attributed 1275.75 grams to one defendant and 1332.45 to another, relying on a drug ledger and calendar obtained from another conspirator. Defendants claimed that some of the quantities were improperly attributed to them because the evidence did not distinguish who was involved in each transaction. The Tenth Circuit held that the district court properly attributed to defendants the quantities that were reasonably foreseeable to them based on their own activities and those of their co-conspirators during the relevant time frame. U.S. v. Torres, 53 F.3d 1129 (10th Cir.1995).
10th Circuit holds “watchdog” accountable for all drugs in conspiracy. (275) Defendant, a police officer, served as a “watchdog” for his brother-in-law’s drug activities, running names and car licenses before trips to buy drugs, warning the conspirators about police investigations, storing money at his residence, and generally advising his brother-in-law. The district court attributed to defendant the entire amount of drugs involved in the conspiracy—9 1/2 kilograms of powder cocaine and 9 1/2 kilograms of cocaine base. The Tenth Circuit affirmed, agreeing that the scope of defendant’s conspiratorial agreement was co-extensive with the entire conspiracy and that it was reasonably foreseeable to defendant that his co-conspirators would distribute 19 kilograms of drugs. One conspirator testified that defendant had direct knowledge that the conspiracy had processed 19 kilograms because defendant had been present when these amounts were brought to her for processing. A courier corroborated this testimony. U.S. v. Williamson, 53 F.3d 1500 (10th Cir. 1995).
10th Circuit holds leader accountable for all cocaine in conspiracy. (275) The district court held defendant accountable for all of the cocaine base distributed by a drug conspiracy. The Tenth Circuit found this appropriate, given defendant’s status as leader of the conspiracy. Defendant made the decisions regarding how much powder cocaine to purchase, when to purchase it, and how and when to process it into cocaine base. U.S. v. Williamson, 53 F.3d 1500 (10th Cir. 1995).
10th Circuit says defendant could foresee more than 15 kilograms of cocaine. (275) Defendant argued that he could not foresee that his conspiracy involved more than 15 kilograms of cocaine, and that he was only responsible for five kilograms. The Tenth Circuit upheld the trial court’s conclusion that defendant could have reasonably foreseen the possession of larger quantities by his co-conspirators. First, evidence at trial showed that defendant personally possessed large quantities of cocaine. Second, the government provided evidence of his substantial involvement in the conspiracy. One witness testified that he saw defendant swap money for drugs with the conspiracy’s leader, that he saw defendant count large amounts of cash with the leader (including $700,000 on one occasion), and that he saw defendant carry six kilos of cocaine one occasion. Another conspirator heard the leader say that he and defendant were partners in the drug business. U.S. v. Gutierrez, 48 F.3d 1134 (10th Cir. 1995).
10th Circuit says acquittal on possession charge irrelevant to quantity involved in conspiracy. (275) Defendant was convicted of conspiracy to possess with intent to distribute cocaine, and was acquitted of aiding and abetting the possession of cocaine with intent to distribute. She argued that it was error to base her sentence on 500 grams of cocaine since she was acquitted of the possession offense. The 10th Circuit found that her acquittal on possession charges was irrelevant to determining the quantity of drugs attributable to her on the conspiracy conviction. Defendant could be sentenced on the basis of cocaine possessed by another conspirator, so long as the amount possessed was within the scope of the conspiracy and foreseeable to her. U.S. v. Arias-Santos, 39 F.3d 1070 (10th Cir. 1994).
10th Circuit holds defendant need not foresee drugs involved in offense in which he personally participated. (275) Defendant pled guilty to conspiring to possess 1.5 kilograms of cocaine. He argued that the court erred in applying the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(B) for offenses involving more than 500 grams of cocaine without first determining that the drug quantity was reasonably foreseeable to him. The 10th Circuit held that even if the guidelines’ foreseeability principles were applied to mandatory minimum sentences, under the facts of this case, the quantity of drugs attributed to defendant did not need to be foreseeable to him. The foreseeability requirement does not apply to conduct in which a defendant personally participates, it applies only to the conduct of others. The drugs attributed to defendant arose from conduct in which he personally participated. Defendant drove a car to the bus station to obtain cocaine from a courier. He knew that the purpose of the trip was to obtain cocaine. The foreseeability of the quantity was irrelevant. U.S. v. Lockhart, 37 F.3d 1451 (10th Cir. 1994).
10th Circuit affirms that defendant was involved with five to fifteen kilograms of cocaine. (275) The 10th Circuit rejected defendant’s claim that she should only be sentenced for the quantity of drug in the charge for which she was convicted. A defendant is accountable for all drugs within the scope of the conspiracy that are reasonably foreseeable. Defendant was not held accountable for drugs distributed by the conspiracy before she joined. There were reliable grounds for finding she was responsible for between five and fifteen kilograms of cocaine base. She was directly involved in at least four separate excursions between Oklahoma City and Houston, bringing in one to three kilograms of cocaine base per trip. At the time of her arrest, defendant was specifically linked with two kilograms she had assisted in transporting. U.S. v. Coleman, 7 F.3d 1500 (10th Cir. 1993).
10th Circuit upholds sentencing on basis of conspiracy to manufacture methamphetamine. (275) The 10th Circuit affirmed sentencing defendant on the basis of 26.5 pounds of methamphetamine, rather just than the 1.5 pounds a co-conspirator sold to defendant. The district court included in its calculation six pounds of methamphetamine that a co-conspirator attempted to produce (even though due to ineptness only one pound was actually produced), and 18 gallons of methamphetamine oil, which would have “powdered out” to 18 pounds of methamphetamine. The fact that defendant was only involved in methamphetamine distribution was irrelevant since he knew that one of the objectives of the conspiracy was to manufacture methamphetamine. U.S. v. Youngpeter, 986 F.2d 349 (10th Cir. 1993).
10th Circuit expresses concern at disparity between sentences of conspirators who cooperated and those who stood trial. (275) In a large drug conspiracy prosecution against numerous defendants, the 10th Circuit affirmed the long sentences each defendant who went to trial received, since there was evidence that the district court carefully considered the extent of each defendant’s participation in the conspiracy and the quantity of drugs that was reasonably foreseeable to each. However, it joined the district court in expressing its concern for the radical disparity between the sentences these defendants received (210 months, 210 months, 290 months and life imprisonment) and the sentences imposed upon those defendants who cooperated with the government (5 years probation, one year supervised release, five years supervised release, and 5 years probation). The concern was not obviated by the government’s representation that it gave all of the defendants an opportunity to cooperate in exchange for leniency. “Rather, it is heightened by the prospect that the use of this tactic in a large-scale conspiracy prosecution might effectively chill a defendant’s right to trial.” U.S. v. Evans, 970 F.2d 663 (10th Cir. 1992).
10th Circuit affirms that defendant was accountable for full 300 kilograms involved in drug transaction. (275) Defendant argued that he should only be held accountable for 200 of the 300 pounds of marijuana involved in a drug transaction. The 10th Circuit rejected the argument. As part of his plea allocution, defendant admitted that he possessed with intent to distribute 298 pounds of marijuana. The district court implicitly ruled that defendant knew or should have known that his transaction involved 300 pounds of marijuana. In addition, the evidence indicated that the defendants intended to pay $650 per pound of marijuana. Thus, the $200,000 defendant was carrying was more consistent with a purchase of 300 pounds of marijuana (costing approximately $195,000) than a purchase of 200 pounds of marijuana (costing approximately $130,000). U.S. v. Bernaugh, 969 F.2d 858 (10th Cir. 1992).
10th Circuit rejects holding defendant responsible for cocaine acquired prior to his entry into conspiracy. (275) The 10th Circuit held that the district court erroneously held defendant responsible for one kilogram of cocaine that his co-conspirators distributed prior to his entry into the conspiracy. As a late-entering co-conspirator, defendant could be sentenced only for past quantities that he knew or should have known the conspiracy distributed. Here, there was no indication that defendant received information on the conspiracy’s prior drug dealings. The scope of his agreement was narrow: he came into town to sell two or three ounces of crack, and the co-conspirators agreed to assist him. Nothing in the record showed that the parties contemplated a more extensive relationship. “We think it implausible that person who undertakes a one-time drug deal in concert with others thereby assumes responsibility for the entire past misdeeds of his or her co-conspirators.” U.S. v. Matthews, 942 F.2d 779 (10th Cir. 1991).
10th Circuit upholds sentence based upon conspiracy’s distribution of over 8600 grams of heroin. (275) The 10th Circuit rejected defendant’s contention that it was improper to sentence her on the basis of 8624 grams of heroin. Defendant contended that there was no evidence that she had actual knowledge or that she reasonably should have known that this amount was being distributed by the conspiracy in which she was involved. The district court found that the purpose of the conspiracy was to turn over as much heroin as possible, and that the total amount distributed would be the maximum amount the supplier was capable of supplying. Sanders, 929 F.2d 1466 (10th Cir. 1991), abrogated on other grounds by Salinas v. U.S., 522 U.S. 52, 118 S.Ct. 469 (1997).
10th Circuit holds that defendant is responsible for actual quantity of drugs distributed by conspiracy. (275) Defendant argued that she should only be responsible for the drugs she personally handled, not the total quantity of drugs involved in her portion of the conspiracy. The 10th Circuit disagreed, holding that a defendant is subject to a sentence determined by reference to the actual quantity of drugs involved in the conspiracy, provided that the defendant knew or should have known that at least such amount was involved. U.S. v. Williams, 897 F.2d 1034 (10th Cir. 1990).
11th Circuit upholds increase for addict’s death while using drugs supplied by co-conspirators. (275) Section 2D1.1(a)(1) sets the base offense level at 43 or life, if the defendant is convicted of conspiracy to violate 21 U.S.C. § 841(B)(1)(a), and death or serious bodily injury resulted from use of the illegal substance, and the defendant had a prior conviction for a similar offense. Here, an addict died from an overdose of methadone, with cocaine as a contributing factor. Prior to his death, the addict had frequently obtained drugs from members of the charged conspiracy at their drug house. Two of the drugs included methadone and cocaine, and the jury specifically found these drugs were objects of the conspiracy. A witness who frequently purchased drugs with the addict testified that the addict got the cocaine from one defendant, and that another defendant supplied them with a place to stay after injecting the methadone. A third defendant was present in the apartment where the witness and the addict stayed. The Eleventh Circuit held that the death of one of several addicts who purchased drugs at the drug house was reasonably foreseeable. However, the death enhancement was improper for a fourth conspirator where there was no evidence that he was a member of the conspiracy prior to the addict’s death. U.S. v. Westry, 524 F.3d 1198 (11th Cir. 2008).
11th Circuit rejects sentence based on more serious drug in multi-object conspiracy. (275) Defendants were convicted of conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846. The jury returned a general verdict, not a special verdict. At sentencing, the district court acknowledged that under U.S. v. Dale, 178 F.3d 429 (6th Cir. 1999) and U.S. v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part en banc, 218 F.3d 310 (4th Cir. 2000), where a count alleges a conspiracy involving multiple controlled substances, in the absence of a special verdict, a court cannot sentence beyond the maximum sentence for the least serious of the alleged controlled substances. The district court found Dale and Rhynes distinguishable because (1) the indictment charged a conspiracy to distribute both cocaine and marijuana, and (2) the written jury instructions said that the conspiracy involved cocaine, without mention of marijuana. Accordingly, the court imposed 240-month sentences on the conspiracy count. The Eleventh Circuit reversed, finding a Dale-Rhynes violation. The jury instructions were modest in describing the nature of the conspiracy. The conjunction “or” was used in the oral instructions, while the printed instructions ignored the marijuana as being part of the conspiracy. At no time was the jury advised, either in the court’s instructions or in the government’s argument to the jury, that in order to find a defendant guilty it must find that the defendant had agreed to participate with both cocaine and marijuana. U.S. v. Allen, 302 F.3d 1260 (11th Cir. 2002).
11th Circuit upholds drug quantity calculation. (275) Defendant argued that the district court erred in attributing 227.014 kilograms of marijuana to him because there was no evidence to demonstrate that he was a party to any of the negotiations for the purchase of marijuana. However, the evidence supported the conclusion that defendant was a knowing participant in the drug conspiracy from the time when his co-defendant gave defendant’s phone number to the informant until his arrest at the scene of the planned exchange. Defendant was convicted of conspiracy to possess more than 100 kilograms of marijuana, which was appropriate as the object of the conspiracy was 500 pounds or 226.8 kilograms of marijuana. Defendant was also convicted of simple possession of 213.8 grams of marijuana, independent of 500 pounds of drugs that were the object of the conspiracy. The total amounts of drugs was thus 227.014 kilograms of marijuana, and the district court did not err when it attributed that amount to defendant. U.S. v. Ryan, 289 F.3d 1339 (11th Cir. 2002).
11th Circuit says defendant could foresee co-conspirator’s conduct. (275) Defendant participated in a conspiracy that distributed crack cocaine in Laurel Hill, Florida. The Eleventh Circuit ruled that defendant was properly held accountable for the conduct of co-conspirator Moore, who supplied the conspiracy with crack. From defendant’s level of involvement, it was evident to him that Moore was a major drug supplier in the Laurel Hill area. Moore’s buys and sells were reasonably foreseeable to defendant and were clearly in furtherance of the conspiracy. During the year defendant lived in Laurel Hill, he dealt repeatedly with Moore; took Moore on a 22-gram buy from defendant’s regular sources; was fronted between a half and a quarter-ounce of cocaine by Moore on numerous occasions; regularly sold the fronted cocaine in Laurel Hill; traveled to another town with Moore to make a $1600 purchase; and traveled to Pensacola to buy two ounces from one of Moore’s sources. U.S. v. Matthews, 168 F.3d 1234 (11th Cir. 1999).
11th Circuit holds that drug sales outside of conspiracy were not part of same course of conduct. (275) Over a two-year period, defendant supplied cocaine to a conspiracy that operated out of a car wash. A witness who was not involved in the car wash operation testified that defendant also sold two kilograms of cocaine to the witness’s boyfriend, Saldana. The Eleventh Circuit held that the district court should not have included in its sentencing calculation the two kilograms sold to Saldana because the sale was not part of the same course of conduct as the car wash conspiracy. The course of conduct on which the indictment and trial focused was the distribution of cocaine through one particular car wash. Therefore, only sales related to the car wash operation should be considered part of the same course of conduct. Saldana was not connected to the car wash. The testimony relating to his purchase was elicited merely as evidence of defendant’s intent to distribute. U.S. v. Gomez, 164 F.3d 1354 (11th Cir. 1999).
11th Circuit excludes drugs imported eleven months before defendant joined conspiracy. (275) From May 1988 through July of 1991, conspirators operated a successful drug smuggling ring in south Florida. Defendant joined the conspiracy in May of 1989 to assist in transporting 7,000 pounds of marijuana from a drop site at sea to Florida. At sentencing, the district court held defendant accountable for these 7,000 pounds plus an additional 11,794 kilograms of marijuana the conspiracy had smuggled into the U.S. in June 1988, eleven months before defendant joined the conspiracy. The Eleventh Circuit reversed, ruling that defendant was not accountable for the drugs imported almost a year before he joined the conspiracy. Note 1 to § 1B1.3(a)(1) says that conduct must be within the scope of the defendant’s conspiratorial agreement to be considered relevant conduct. Because it occurred almost a year before he joined the conspiracy, the May 1988 shipment was beyond the scope of the criminal activity defendant agreed to jointly undertake with the conspirators. U.S. v. Perulena, 146 F.3d 1332 (11th Cir. 1998).
11th Circuit holds defendant accountable for ex-husband’s drug sales where she supplied the marijuana. (275) Defendant and her ex-husband engaged in an extensive marijuana distribution conspiracy involving thousands of pounds of marijuana. Defendant argued that she was not accountable for 1,200 pounds of marijuana that her ex-husband sold because she was not directly involved in the sales. The Eleventh Circuit held that defendant was accountable for her husband’s sales because she had supplied the marijuana to him. Under § 1B1.3, defendant was accountable for other conduct that was reasonably foreseeable and within the scope of the criminal activity that she agreed to undertake. The government proved that a small and relatively closed group of individuals operated a marijuana distribution conspiracy from 1984 until 1994, the object of which was to bring large quantities of marijuana into Holmes County, Florida for distribution and sale. Defendant was accountable for marijuana that she acquired for her ex-husband for distribution in Holmes County. U.S. v. Alred, 144 F.3d 1405 (11th Cir. 1998).
11th Circuit holds defendant responsible for entire amount of drugs in shipment. (275) Defendant was involved in a conspiracy that smuggled cocaine into the U.S. He argued that he was not responsible for all 503 kilograms of cocaine brought in on one voyage, but only the 70 kilograms that he allowed to be stored at his residence after its off-loading. The Eleventh Circuit held that defendant was accountable for all 503 kilograms involved in the shipment. Defendant’s van was used to transport the 503 kilograms away from the off-loading site. Most of this was stored at another conspirator’s house, but 70 kilograms would not fit. Those 70 kilograms were taken to defendant’s house where defendant was at home and where he helped carry it to his bedroom for counting. The co-conspirator showed up with his log book to take an official count of the cocaine and add that number to that which was stored at his house. Defendant then helped load the cocaine into the trunk of a car and allowed that car to remain in his driveway for several days. Finally, defendant allowed the owner of the car in which the cocaine was stored to continue to use defendant’s van while the cocaine remained in the car. U.S. v. Calderon, 127 F.3d 1314 (11th Cir. 1997).
11th Circuit holds defendant accountable for entire amount of crack sold by conspiracy. (275) Defendant was convicted of conspiracy to distribute cocaine base. The Eleventh Circuit upheld the court’s adoption of the PSR’s recommendation that defendant be held responsible for the entire amount of crack distributed by the conspiracy from March 1990 until November 1991. The district court made specific rulings as to defendant’s role and the foreseeability of her co‑conspirators’ acts. The court found defendant was a willing participant in the conspiracy, was at the highest level of the organization, and that all of the events that occurred were reasonably foreseeable to her. U.S. v. Brazel, 102 F.3d 1120 (11th Cir. 1997).
11th Circuit holds defendant accountable for drugs he paid to transport to U.S. (275) Defendant was involved in a distribution ring that obtained cocaine smuggled into the U.S. from Colombia. The Eleventh Circuit held defendant accountable for 20 kilograms of cocaine based on evidence that he had provided the full transportation fee of $63,000 to a co‑conspirator for 20 kilograms of cocaine. U.S. v. Lozano-Hernandez, 89 F.3d 785 (11th Cir. 1996).
11th Circuit holds that conversion of cocaine into crack was outside scope of defendant’s agreement. (275) Defendant assisted some conspirators in obtaining nine kilograms of powder cocaine, which the conspirators cooked into crack. He also assisted them in attempting to obtain an additional 15 kilograms of powder cocaine, but the deal was never completed. The Eleventh Circuit held that it was error to sentence defendant according to the schedule for crack cocaine, since the conversion of the powder cocaine into crack was outside the scope of his conspiratorial agreement. Defendants are only accountable for coconspirator conduct that was reasonably foreseeable and within the scope of the criminal activity that they agreed to undertake. Here, defendant merely assisted with the procurement of powder cocaine. There was no evidence that he knew of or agreed to the planned conversion of powder cocaine into crack. U.S. v. Chisholm, 73 F.3d 304 (11th Cir. 1996).
11th Circuit remands to determine scope of defendant’s involvement in conspiracy. (275) Defendant was arrested with others in a vehicle carrying cocaine and cash. Defendant claimed he was an independent street level dealer and should not be held accountable for additional cocaine attributable to the other dealers. The Eleventh Circuit remanded for the district court to make specific findings regarding the scope of defendant’s involvement in the conspiracy. A member of a drug conspiracy is liable for his own acts and the reasonably foreseeable acts of others in further of the activity that the defendant agreed to undertake. Here, the court made no findings about defendant’s role in the conspiracy. U.S. v. Lee, 68 F.3d 1267 (11th Cir. 1995).
11th Circuit requires court to determine scope of conspiratorial agreement. (275) Defendants were involved in a large-scale cocaine conspiracy. The district court held defendants accountable for the full amount distributed by the conspiracy while they participated in it, finding this quantity reasonably foreseeable to each. The Eleventh Circuit reversed, holding that under the November 1992 amendment to § 1B1.3 and its commentary, defendants are only accountable for other conduct that was reasonably foreseeable and within the scope of the criminal activity that each defendant agreed to undertake. Before this amendment, a conspirator was responsible for all reasonably foreseeable quantities of drugs involved in the conspiracy, regardless of the scope of the defendant’s agreement to participate. However, the amendment requires the additional drugs to be within the scope of the defendant’s agreement. Here, the district court did not consider the scope of the criminal activity that each defendant agreed to undertake. U.S. v. Reese, 67 F.3d 902 (11th Cir. 1995).
11th Circuit requires individualized findings to hold drug source responsible for all cocaine. (275) Defendant argued that he was not responsible for all of the crack cocaine involved in a drug conspiracy. The Eleventh Circuit agreed that without individualized findings defendant could not be held responsible for the conspiracy’s entire output. Although the record revealed that defendant was one of the leader’s sources in south Florida and that he provided couriers with crack cocaine on several occasions, it did not reveal on how many occasions he did so, or whether he could have reasonably foreseen the conspiracy’s entire output. U.S. v. Hansley, 54 F.3d 709 (11th Cir. 1995).
11th Circuit finds sufficient acts committed after defendant’s 18th birthday. (275) Defendant argued that the district court should not have considered acts he committed before his 18th birthday to determine the quantity of drugs attributable to him under the sentencing guidelines. The Eleventh Circuit upheld the sentence, since even the evidence against him after he turned 18 supported the sentence. The district court found defendant responsible for between five and 15 kilograms of cocaine base. Defendant turned 18 July 21, 1991. An informant testified that in August 1991 he saw defendant dispatch a young man to get an ounce of cocaine. The informant also observed defendant deliver to the conspiracy’s leader $20,000 on one occasion, and $10,000 on another occasion. On September 18, 1991 the leader stated that he was tired of defendant “shorting him” on payments. On September 20, defendant told the leader in a taped call that “it was a slow day.” When defendant was arrested, he was in the company of another co-conspirator and had a cellular telephone and a pager in his possession. U.S. v. Newton, 44 F.3d 913 (11th Cir. 1995).
11th Circuit remands for individualized finding of foreseeability. (275) Defendant challenged the district court’s decision to attribute to him all 700 kilograms of cocaine involved in the conspiracy, rather than the 70 kilograms hidden in a truck he drove. The 11th Circuit remanded for an individualized finding of the quantity of cocaine attributable to defendant. At the sentencing hearing, defendant did not request an individualized finding of fact as to what quantity was reasonably foreseeable to him, and the district court did not make one. Under these circumstances, the district court was entitled to rely on the factual statements in the PSR without making an individualized finding. However, defendant’s PSR was ambiguous. Although it stated that the offense involved 700 kilograms, it also stated that defendant was a “hired hand” who probably did not know the quantity of cocaine he was transporting. U.S. v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994).
11th Circuit holds defendant accountable for husband’s drug dealing. (275) Defendant and her husband were involved in a dilaudid distribution conspiracy. The 11th Circuit held that defendant was accountable for drugs her husband purchased from their distributor. The distributor testified that defendant sometimes obtained dilaudid and delivered money for her husband. An officer who took defendant’s post-arrest statement testified that defendant admitted that she and her husband distributed the dilaudid they obtained from the distributor. U.S. v. Maxwell, 34 F.3d 1006 (11th Cir. 1994).
11th Circuit remands to determine scope of defendant’s conspiratorial agreement. (275) Defendant contended the district court applied the wrong standard for determining the quantity of cocaine attributable to defendant. The 11th Circuit agreed. The district court found that defendant knew of her husband’s drug activities and therefore could foresee that the conspiracy involved more than five kilograms of cocaine. However, to determine the amounts of drugs attributable to a defendant, the court must first make individualized findings concerning the scope of criminal activity undertaken by defendant. The court must then to determine the quantity of drugs reasonably foreseeable in connection with that level of participation. U.S. v. Bush, 28 F.3d 1084 (11th Cir. 1994).
11th Circuit holds defendants accountable for fake cocaine involved in reverse sting operation. (275) Defendants were targeted in a reverse sting off-load operation. Defendants off-loaded 250 kilograms of what they believed was cocaine. The 11th Circuit held that defendants were accountable for 250 kilograms of cocaine. They pled guilty to importing 250 kilograms of cocaine, their PSRs reflected this amount, and neither defendant disputed it. U.S. v. Pessefall, 27 F.3d 511 (11th Cir. 1994).
11th Circuit holds defendant accountable for 16 kilograms of cocaine where his role was essential to delivery of drug. (275) The district court found that defendant conspired to possess with intent to distribute 16 kilograms of cocaine. Defendant argued that these quantities were not reasonably foreseeable to him. The 11th Circuit found that the attribution of 16 kilograms to defendant was not clearly erroneous. His role was essential to the delivery of the 16 kilograms, since he was the person sent to meet with confidential informant when the conspirators were considering the possibility of dealing with him. U.S. v. Taylor, 17 F.3d 338 (11th Cir. 1994).
11th Circuit holds defendant who guarded one drug load could not foresee additional shipments. (275) A 900-pound load of marijuana was flown into a remote area of Florida. The marijuana was offloaded in defendant’s absence, and taken to a farmhouse occupied by defendant, to be stashed overnight. Defendant patrolled the area that night, and was held accountable at sentencing for several later marijuana shipments involving his co-conspirators. The 11th Circuit reversed, holding that defendant could not have reasonably foreseen the additional shipments. He was merely the caretaker of the house, occupying it and tending to the cattle and horses in the owner’s absence. Defendant only knew two of the coconspirators. There was no evidence that defendant knew anything of the conspiracy’s past operations, the identity of the other conspirators, where the marijuana came from, how it was imported, how it was moved, or whether future shipments were contemplated. U.S. v. Chitty, 15 F.3d 159 (11th Cir. 1994).
11th Circuit rejects finding that defendant was responsible for more than five kilograms of crack. (275) The 11th Circuit rejected the district court’s conclusion that defendant was responsible for more than five kilograms of crack. The PSR stated that he should be held accountable for the total amount of crack sold or possessed by a co-defendant. The district court adopted the PSR without making any specific findings as to the quantity of cocaine attributable to defendant. There was no evidence that defendant participated in the conspiracy among several of his co-defendants. In fact, one conspirator testified that defendant sold drugs in a different “territory” than his co-conspirators. U.S. v. Beasley, 2 F.3d 1551 (11th Cir. 1993).
11th Circuit rejects estimate that more than five kilos of crack were sold on defendant’s premises. (275) The 11th Circuit rejected the district court’s conclusion that more than five kilograms of crack cocaine were sold from defendant’s premises. A DEA agent testified that a co-conspirator distributed 17.88 kilograms of cocaine, but the agent admitted that he did not know how much of this was distributed from defendant’s premises. The only evidence offered at trial was the testimony of a worker. She testified that she sold crack in defendant’s yard, but her testimony as to how much she sold in a day varied widely, from $3,000 to $30,000. Moreover, there was nothing in the record to aid the court in converting these dollar figures into quantity figures. There was also some question as to what quantity of cocaine was reasonably foreseeable to defendant, who, in exchange for the use of his yard and house, received only enough crack cocaine to support his own habit. U.S. v. Beasley, 2 F.3d 1551 (11th Cir. 1993).
11th Circuit holds pilot accountable only for smuggling trip in which he participated. (275) Defendant was the copilot on a trip to smuggle marijuana. In calculating defendant’s drug quantity, the district court included the amount of marijuana that was supposed to be transported in the trip and added an equal amount that could be transported in an additional, hypothetical trip. The 11th Circuit concluded that the defendant could not be held accountable for the additional quantity. There was no evidence showing that defendant intended to be involved with a second smuggling trip, or that defendant was aware of a conspiracy involving more than one smuggling trip. A codefendant who was more deeply involved with the conspiracy, however, was properly held accountable for the entire quantity transported by the conspiracy. U.S. v. Adams, 1 F.3d 1566 (11th Cir. 1993).
11th Circuit remands for findings as to drug quantities attributable to defendant. (275) Defendant, a member of a drug conspiracy, was sentenced based on the total quantity of drugs attributable to the conspiracy. The 5th Circuit remanded. The district court should first have made individualized findings concerning the scope of criminal activity undertaken by the defendant. Then the district court should have determined the drug quantities reasonably foreseeable in connection with that level of participation. U.S. v. Ismond, 993 F.2d 1498 (11th Cir. 1993).
11th Circuit affirms that defendant was responsible for five kilograms of cocaine involved in conspiracy. (275) The 11th Circuit affirmed the conclusion that defendant was responsible for the more than five kilograms of cocaine involved in his conspiracy, even though the FBI seized less than one-fourth a kilogram from him. One conspirator testified that the partnership distributed at least one kilogram of cocaine a month for 10 months. An unindicted co-conspirator testified that defendant bought nine ounces of cocaine from him each week for 18 weeks. U.S. v. Saget, 991 F.2d 702 (11th Cir. 1993).
11th Circuit affirms that drug seller on street was responsible for drugs found in nearby house and cars. (275) While waiting to conduct a search of a suspected drug house, police were called to a nearby location where open drug sales were taking place. Defendant, one of the participants, was arrested as he ran in the direction of the house. During the arrest, two people came out of the house and tried to talk to defendant. He attempted to give them his jacket. Police found chunks of 40 percent benzocaine crack cocaine in the jacket and $1,410 in small bills. A search of the house uncovered crack of the same 40 percent benzocaine mixture. A mini-van parked across the street contained cash and drugs, and the car parked in the driveway contained drug paraphernalia, a loose license plate for a different car registered to defendant and an insurance revocation notice addressed to him. The 11th Circuit affirmed that defendant could be held accountable for the crack found in the mini-van and the house. Defendant’s involvement was supported by his flight toward the house, his conversation with the couple there and his efforts to give them the drugs in his jacket, the uniqueness of the drugs found in defendant’s jacket, the house and mini-van, and the presence of his license tags and papers. U.S. v. Louis, 967 F.2d 1550 (11th Cir. 1992).
11th Circuit holds conspirator accountable for drugs found in house run by conspiracy. (275) Defendant was involved in a large cocaine conspiracy. He claimed the district court could not attribute to him 161.5 grams of cocaine seized from one of the houses rented by the conspiracy since, unlike other conspirators, he was not charged with either possessing this cocaine or with knowingly maintaining the house. The 11th Circuit rejected this argument, since the activities at the house were activities attributable to the conspiracy. Defendant, as a member of the conspiracy, could foresee that cocaine distributed at another house rented by the conspiracy was being brought from elsewhere and being processed and packaged elsewhere. U.S. v. Clavis, 956 F.2d 1079 (11th Cir. 1992).
11th Circuit holds conspirators accountable for cocaine seized from courier six days after their arrest. (275) Defendants contested the attribution of 369 grams of cocaine base seized from a courier on January 19 because they, and most of the other conspirators, had been arrested six days earlier. The 11th Circuit rejected this since there was evidence that the cocaine had been ordered by the conspiracy’s leader in December. It was reasonably foreseeable that the conspiracy would continue unabated after their arrest to the extent of continued movement of cocaine previously ordered. U.S. v. Clavis, 956 F.2d 1079 (11th Cir. 1992).
11th Circuit affirms that defendant could have foreseen that conspiracy would distribute over 500 grams of cocaine. (275) The 11th Circuit affirmed sentencing two co-defendants on the basis of over 500 grams of cocaine. A government agent estimated that the first defendant, a “runner,” sold quarter and half grams on the street every day, but admitted that he did not know how much this defendant sold a day. An informant stated that defendant sold four to five times a day for a year. There was also evidence that the conspiracy distributed eight to 14 ounces a week. A government agent testified that the second defendant was in the constant company of the other members of the conspiracy who distributed a total of six to eight ounces of cocaine a week. An informant testified that he saw the second defendant sell crack in half gram and one gram sizes three to four times a week over a six month period. Thus, defendants could have reasonably foreseen the conspiracy’s involvement with 500 grams of cocaine over the entire period of the conspiracy. U.S. v. Andrews, 953 F.2d 1312 (11th Cir. 1992).
11th Circuit upholds sentencing leader of drug conspiracy for all drugs distributed by conspiracy. (275) The 11th Circuit affirmed that there was sufficient evidence to sentence defendant on the basis of 10 kilograms of cocaine. The government proved defendant’s involvement in the drug conspiracy beyond a reasonable doubt. The same testimony that established defendant’s involvement in the conspiracy, which the jury believed, put defendant at the conspiracy’s head. The sentencing court was entitled to sentence defendant for all the cocaine described at his trial. U.S. v. Andrews, 953 F.2d 1312 (11th Cir. 1992).
11th Circuit remands for district court to determine amount of cocaine involved in conspiracy. (275) The district court set defendant’s base offense level at 36, which is warranted when 50 or more kilograms of cocaine are involved. Defendant contended that neither his conduct nor the reasonably foreseeable conduct of his co-conspirators justified a conclusion that defendant knew the transaction involved 50 or more kilograms of cocaine. The 11th Circuit remanded for the district court to make an explicit finding of the amount of cocaine in the conspiracy known or reasonably foreseeable to defendant. U.S. v. Gutierrez, 931 F.2d 1482 (11th Cir. 1991).
11th Circuit affirms offense level calculation based upon full amount of cocaine distributed by conspiracy. (275) Although defendant was convicted of conspiracy to distribute six and one-half grams of cocaine, he contended that he had no knowledge of that amount, and should have been sentenced on the basis of the four kilograms of which he had knowledge. The 11th Circuit affirmed the offense level calculation. The district judge stated that there was sufficient evidence from the trial of the co-conspirators that defendant knew about the full six and one-half kilograms. The district court offered defendant the opportunity to request an evidentiary hearing on this issue, and defendant refused. Moreover, the overt act of a co-conspirator is attributable to a defendant and may be used to calculate the proper sentence. U.S. v. Ervin, 931 F.2d 1440 (11th Cir. 1991).
11th Circuit finds that relevant conduct for conspiracy includes Pinkerton-like accountability for acts of co-conspirators. (275) The “relevant conduct” section of the guidelines, U.S.S.G. § 1B1.3, attributes to the defendant acts “by a person for whose conduct the defendant is legally accountable” that are part of “a common scheme or plan.” The 11th Circuit ruled that this “resembles in essence “the Pinkerton attribution to co-conspirators of “the same or other acts in furtherance of the conspiracy . . . for the purpose of holding them responsible for the substantive offense.” U.S. v. Pinkerton, 328 U.S. at 647 (1946);. Thus, although the guidelines do not “in any sense codify” the Pinkerton rule, the district court properly considered the acts of co-conspirators in sentencing the defendant. The district court also properly found one overall conspiracy, rather than separate conspiracies. U.S. v. LaFraugh, 893 F.2d 314 (11th Cir. 1990).
11th Circuit finds that defendant’s understanding of factors to be considered at sentencing precludes challenge. (275) Defendant pled guilty to one count of cocaine distribution and appealed her sentence, claiming that because she only pled guilty to possession of less than 500 grams, it was error for the district court to sentence her based upon the entire 2009 grams involved in the conspiracy. The 11th Circuit affirmed the sentence holding that because the record revealed that the defendant entered into the plea agreement with the awareness that she could be held responsible for the entire amount of cocaine, the calculation of the sentence was proper. U.S. v. Davis, 878 F.2d 1299 (11th Cir. 1989).
D.C. Circuit upholds sentence for conspiracy despite acquittal. (275) A jury convicted defendants of distributing small quantities of crack cocaine, but acquitted them of conspiracy to distribute drugs. At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and sentenced them to terms of imprisonment ranging from 15 to nearly 19 years. They argued that it was clear error for the district court to find that they had formed an agreement with members of the Congress Park Crew to distribute crack. They claimed that the court improperly credited the testimony of cooperators, pointing to evidence that the cooperators repeatedly deceived authorities, perjured themselves, framed loved ones, abused drugs, breached plea agreements, and took money from the government. The D.C. Circuit found no error. Despite these facts, it was implausible for the district court to credit particular aspects of the witnesses’ testimony, especially where, as here, the cooperators offered mutually corroborative accounts that defendants associated with named conspirators, sold crack in Congress Park during the period of the conspiracy, shared sales proceeds with other conspirators, and protected their control of the Congress Park drug trade against outside competitors. U.S. v. Jones, 744 F.3d 1362 (D.C. Cir. 2014).
D.C. Circuit upholds finding that three defendants could foresee all PCP sold by street gang. (275) Three defendants were members of the M Street Crew, which operated a massive drug ring in Washington, D.C. The D.C. Circuit upheld the district court’s decision to attribute to each defendant 30 or more kilograms of PCP. The court could properly find that more than 30 kilograms of PCP were involved in the M Street Crew conspiracy, and that this quantity was reasonably foreseeable to each defendant individually. Defendant Robinson was engaged in selling activities almost daily, and was the source of PCP when Franklin, the conspiracy’s leader, was not available. Robinson had regular and constant communications with Franklin about the quantity of PCP on the street. Defendant Wilson was involved in the day-to-day activities of the Crew, and had close proximity to Franklin, and was involved in directing sales. Although defendant Blackson was incarcerated following his arrest, he never withdrew from the conspiracy, and immediately went back to trafficking after his release, so that he knew the full amount of PCP sold by the M Street Crew, including the full amount sold while he was incarcerated. U.S. v. Wilson, 605 F.3d 985 (D.C. Cir. 2010).
D.C. Circuit says court improperly relied on two factors to hold defendant accountable for all drugs in conspiracy. (275) The D.C. Circuit found that two of the four factors on which the district court relied in holding defendant accountable for the full scope of the drug conspiracy were erroneous, and remanded for new findings as to the scope of defendant’s agreement. In rejecting defendant’s claim that his participation was limited merely to buying drugs from Harrison and distributing them on the street, the court cited four facts: (1) defendant accompanied Harrison to Baltimore for Harrison’s early discussions concerning Harrison’s Baltimore efforts, (2) the very high purity, packaging, and amount of some of the drugs recovered in the search of defendant’s residence indicated that defendant was being supplied with uncut drugs which defendant would then cut and package, (3) defendant had direct knowledge that Harrison distributed heroin to others, and (4) defendant had tried to collect money owed to Harrison. However, the government conceded that the court’s finding that defendant accompanied Harrison to Baltimore was not directly supported by the evidence at trial and was therefore erroneous. In addition, the court’s finding that defendant had direct knowledge that Harrison distributed heroin to others was erroneous. The intercepted phone conversations in which defendant participated did not involve any conspirator other than Harrison. The government was unable to point to any concrete evidence that defendant had direct knowledge of Harrison’s distribution of heroin to others. U.S. v. Stover, 329 F.3d 859 (D.C. Cir. 2003).
D.C. Circuit holds defendant accountable for drugs co-defendant threw out the window. (275) Defendant was arrested after police executed a search warrant for an apartment in which he was found with a co-defendant and a small quantity of drugs. During the execution of the search, officers outside the building observed the co-defendant toss a large quantity of drugs out the window of the apartment. The D.C. Circuit held defendant accountable for both the drugs found in the apartment and the much large quantity of drugs his co-defendant threw out the window. There was sufficient evidence that defendant aided and abetted his co-defendant. Therefore he was responsible for the entire quantity of drugs his co-defendant possessed. U.S. v. Dingle, 114 F.3d 307 (D.C. Cir. 1997).
D.C. Circuit affirms drug quantity, firearm increase, and managerial role for lieutenant in violent drug ring. (275) Defendant participated in a large drug conspiracy. The D.C. Circuit affirmed the attribution of all the drugs in the conspiracy to defendant, a § 3B1.1(b) managerial role enhancement, and a § 2D1.1(b)(1) firearms enhancement. Defendant was a lieutenant in the drug ring who supervised street sellers, was close to some of the ring’s leaders, and engaged in violent activities on behalf of the ring. He delivered guns and handled and oversaw drug runners on the streets. He was convicted of carrying a firearm in the area the ring distributed drugs. There was testimony that at the time of his arrest, there was an ongoing situation with a rival gang over control of the territory. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit does not require individualized findings where defendant’s involvement in drug ring was overwhelming. (275) Defendant was involved in a large drug conspiracy. He argued that the district court failed to make individualized findings at sentencing regarding the scope of his conspiratorial agreement and the reasonable foreseeability of the drug quantities to him. The D.C. Circuit held that since defendant failed to demonstrate that any failure to make sufficiently individualized findings was harmful, the alleged failure did not require a remand. The evidence of defendant’s involvement in the drug ring was overwhelming. He was a runner throughout the conspiracy, engaged with the leaders both as to his pay and the organization’s retaliatory activities against rival drug operations, and personally and repeatedly participated in the ring’s acts of violence. Several witnesses testified regarding defendant’s high level of involvement with the drug ring. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit holds defendant accountable for drugs in conspiracy even after he began legitimate employment. (275) Defendant argued that the absence of any evidence that he sold, packaged, processed, or distributed drugs after he began employment at a government office showed that he withdrew from the conspiracy, and therefore he was not accountable for drugs distributed by the conspiracy after that date. The D.C. Circuit found no withdrawal since there was no evidence that he made an affirmative effort to withdraw from the conspiracy by communicating that intent to his co-conspirators. Defendant had the burden of proving that he affirmatively withdrew from the conspiracy if he wished to benefit from his claimed lacked of involvement. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit holds 19-year-old accountable for drugs sold by conspiracy when he was 11. (275) One defendant joined a drug conspiracy in 1984 when he was 15 years old. He turned 18 in 1987, and was indicted on drug charges when he was 22. A second defendant joined the conspiracy when he was 11. He turned 18 in 1989, and was 19 when he was indicted. They argued that the guidelines did not permit them to be held vicariously liable for drugs distributed by the conspiracy before they were 18 years old. The D.C. Circuit held that, for defendants younger than 21, the court may not attribute as relevant conduct drugs sold by co-conspirators before a defendant reached age 18, unless the government obtains a transfer of the defendant to adult status or proves that he personally engaged in some affirmative act in furtherance of the conspiracy after turning 18. The fact that the first defendant was 22 when indicted placed him outside the protection of the FJDA. The second defendant, however, was only 19 at the time of indictment and therefore fell within the terms of the FJDA’s definition of a juvenile. This defendant was properly prosecuted as an adult because he continued to participate in the gang after reaching age 18. Since he was properly convicted in adult court of a conspiracy he joined as a juvenile but continued after 18, the guidelines unambiguously permitted the court to consider his co-conspirators’ foreseeable conduct that occurred during the entire conspiracy, from age 11. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit affirms drug quantity despite improper reliance on jury verdict. (275) The district court attributed to defendant all of the drugs handled by the large conspiracy in which he was a member. The court relied on the jury’s guilty verdicts for drug and RICO conspiracies, the testimony of cooperating witnesses, defendant’s excessive spending despite his lack of legitimate income, and his involvement in a murder and other street crimes. The D.C. Circuit affirmed even though it was error for the district court to rely upon the jury verdicts. According to the jury instructions, defendant could have been convicted of the conspiracy offenses without the jury finding that the conduct of his co-conspirators was foreseeable. Nevertheless, this error was harmless, since the other factors considered by the court supported the sentence. The cooperating witnesses established that defendant was a lieutenant in the ring who went from selling drugs to delivering drugs to collecting money to enjoying the success of the ring by driving a Mercedes Benz. Defendant spent large sums of money on trips and cars despite being a teenager with no source of income except the sale of drugs. Defendant did not challenge the PSR’s description of his involvement in the murder of the member of a rival gang. The witnesses were not required to connect him to specific drug quantities sold by the conspiracy. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit finds adequate finding to hold defendant accountable for entire amount of drugs. (275) Defendant challenged the court’s decision to hold him accountable for the entire amount of drugs distributed by the conspiracy in which he participated. He maintained that the district court failed to examine the scope of his conspiratorial agreement and did not determine whether the amount of drugs attributed to him was reasonably foreseeable. The D.C. Circuit held that the court made adequate findings to hold defendant accountable for the entire amount of drugs distributed by the conspiracy. The court outlined the evidence showing the nature of defendant’s involvement in the conspiracy and addressed defendant’s objections to the PSR. The court examined the specific nature of defendant’s changing role in the conspiracy. It found that defendant was aware of the significance of his access to expensive cars and that he had firsthand knowledge of the scope and location of the organization’s ongoing drug activities. Although the attribution of large quantities of drugs may suggest the need for detailed findings, on balance the court adequately addressed defendant as an individual conspirator and did not simply lump him together with other members of the conspiracy. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit upholds drug quantity where counsel offered no support for challenge. (275) Defendant and his brothers were involved in a drug trafficking conspiracy. The district court found defendant accountable for 5-3/8 kilograms of cocaine. The D.C. Circuit affirmed. The government identified the dates of the tape recordings introduced at trial to prove that each of the transactions involved defendant and his brothers. The government showed who initiated each transaction, the amounts of drugs and money involved, the date and time of day when the transaction occurred, and where the deliveries were made. The burden then fell on defendant to show that the government’s proffer was insufficient. Defense counsel responded by arguing for a downward departure, but offered no support for the lower figure. Absent specific challenges by defendant, the district court was entitled to rely on the trial record cited by the government as the basis for its own factual findings. U.S. v. Booze, 108 F.3d 378 (D.C. Cir. 1997).
D.C. Circuit finds PSR’s scope of conspiratorial agreement was not disputed. (275) Defendant was convicted of drug conspiracy charges based on evidence that he and his two brothers jointly purchased multiple kilograms of cocaine from a large drug organization. He argued that he did not conspire with his brothers and that he should have been sentenced for his individual participation in the overall conspiracy. The D.C. Circuit found no basis for reversal despite the absence of detailed findings by the district court. The government proffered reliable and specific evidence about the scope of defendant’s conspiratorial agreement and the quantity of drugs foreseeable to him. Where the defense offers no evidence to refute the government’s proffer, the district court may adopt these facts without further inquiry. Here, defendant failed to dispute the representations in the government’s sentencing memo and in the PSR about the scope of his conspiratorial agreement. Therefore, the district court could properly view defendant’s responsibility as coextensive with that of his brothers. U.S. v. Booze, 108 F.3d 378 (D.C. Cir. 1997).
D.C. Circuit requires court to explain basis for tying defendant to additional drugs. (275) Defendant was a member of a conspiracy that shipped two packages of cocaine from Los Angeles to the D.C. area. Defendant was clearly involved in one shipment delivered to one address and his co-conspirators were implicated in another shipment sent to another address. Defendant challenged the district court’s failure to make individualized findings that defendant could reasonably foresee both packages of drugs shipped from Los Angeles. The D.C. Circuit agreed that the findings were insufficient to hold defendant accountable for the second shipment. The only link between defendant and the second shipment was a notebook found in the car used by defendant to transport the first shipment that contained the address where the second shipment was delivered. In re Sealed Case (Sentencing Guidelines’ “Safety Valve”), 105 F.3d 1460 (D.C. Cir. 1997).
D.C. Circuit holds court made sufficient findings to attribute transaction to defendant. (275) Defendant was involved in a conspiracy to import and distribute heroin. He argued that the district court failed to make sufficient findings to attribute a 2,869.5 gram transaction on November 5 to him. The D.C. Circuit held that the court made sufficient findings. The district court found that the heroin that a co‑conspirator sold on November 5 and the heroin that the co‑conspirator still had available to be sold should be attributed to defendant because defendant was part of the importation and distribution scheme. Moreover, the brick sold on November 5 was the same brick shown to an undercover agent at an October 21 meeting in defendant’s apartment with defendant present. Although the district court’s finding regarding defendant was brief, it was more than simply a generalized or conclusory finding that defendant was involved in the conspiracy. U.S. v. Badru, 97 F.3d 1471 (D.C. Cir. 1996).
D.C. Circuit remands where court failed to make individualized findings of drug quantity. (275) The District of Columbia remanded because the district court failed to make individualized findings that the amount of drugs attributed to each defendant as part of the drug conspiracy were within the scope of that defendant’s agreement. A court should not automatically hold each defendant accountable for the total amount of cocaine involved in the conspiracy, but must instead make individualized findings as to the specific amount of drug each defendant might have reasonably foreseen his or her agreed‑upon participation would involve. Conclusory statements by the court that the quantity of drugs attributed to the defendant were reasonably foreseeable do not satisfy the individualized finding requirement. The adoption of the PSR did not satisfy the individualized finding requirement. U.S. v. Graham, 83 F.3d 1466 (D.C. Cir. 1996).
D.C. Circuit rules court made adequate findings to support drug quantity determination. (275) Defendants argued that the district court failed to make particularized findings to support its drug quantity determinations. The D.C. Circuit disagreed. The presentence report set out the amounts distributed by the drug conspiracy during the period each defendant was a participant. The report further noted that during his participation, each defendant was a full partner, sharing costs and profits equally with each other and a third conspirator, and was therefore chargeable for the drugs then sold. The district court adopted the PSR’s findings. U.S. v. Strothers, 77 F.3d 1389 (D.C. Cir. 1996).
D.C. Circuit finds error in failing to make individualized findings about scope of conspiratorial agreement. (275) Defendants participated in a massive drug conspiracy. The district court attributed 50 kilograms of cocaine to each defendant based on a general finding that the conspiracy involved more than 50 kilograms of cocaine. The D.C. Circuit held that the district court erred by failing to make individualized findings about the scope of each defendant’s conspiratorial agreement and what evidence led it to conclude that 50 kilos were reasonably foreseeable in each of their cases. Even where there is evidence of a single conspiratorial agreement joined by all defendants, the district court must spell out the evidentiary basis for this conclusion. The court must make individualized findings linking each defendant’s scope of participation in the conspiracy with the quantum of drugs attributed to him. The court’s error was only harmless with respect to one defendant who had personally handled the requisite amount of drugs. U.S. v. Childress, 58 F.3d 693 (D.C. Cir. 1995).
D.C. Circuit says failure to ask for individualized findings did not waive challenge to drug quantity. (275) Defendants argued that the district court should not have attributed all of the cocaine in the conspiracy to them without making individualized findings. The government said defendants waived this claim by not asking for individual findings. The D.C. Circuit held that defendants’ objections to their presentence report were sufficient to preserve the issue. One defendant asserted he should not be held accountable for the total amount of drugs because he participated in the conspiracy for a limited period of time. The second defendant contended that there was no testimony tying him to any drugs other than the drugs with which he was directly involved. The third defendant’s more general objection to the calculation of the total 50 kilogram amount was also sufficient to preserve her claim. The failure to specifically request particularized factual findings did not amount to waiver. U.S. v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995).
D.C. Circuit says reasonable foreseeability alone is not sufficient to attribute drugs to co-conspirators. (275) Defendant was involved in a large cocaine conspiracy, primarily by making non-drug deliveries during two distinct time periods in 1990 and 1992. The district court attributed to defendant drugs involved in two transactions that occurred after his 1990 involvement, ruling that those transactions were reasonably foreseeable to him. The D.C. Circuit remanded for specific findings on the scope of defendant’s conspiratorial agreement. Reasonable foreseeability alone is not a sufficient basis to attribute drugs to co-conspirators. In “hub and spoke” conspiracies, many participants are parties only to small conspiracies. In such a scenario, the sentencing court may only attribute to a defendant those drugs that are both reasonably foreseeable to him and in furtherance of his particular conspiratorial agreement. U.S. v. Mitchell, 49 F.3d 769 (D.C. Cir. 1995).
D.C. Circuit holds that adopting PSR’s findings was plain error. (275) Defendant challenged for the first time on appeal the district court’s adoption of the presentence report’s drug quantity findings. The D.C. Circuit held that the court’s adoption of the PSR’s findings, without further comment or analysis, was clearly erroneous. The report suggested that defendant was responsible for all reasonably foreseeable drug quantities attributable to his co-conspirators, without requiring that the acts be “in furtherance of” a joint undertaking. The only factual finding that would support holding defendant liable on an aiding and abetting theory was clearly erroneous. Sentencing courts may not rely on unchallenged factual findings in a presentence report if such findings are internally contradictory, wildly implausible, or in direct conflict with evidence the court heard at trial. U.S. v. Saro, 24 F.3d 283 (D.C. 1994).
D.C. Circuit affirms that defendant who set up meeting between undercover agents and supplier could foresee drug quantity involved. (275) The D.C. Circuit affirmed that a defendant who arranged a meeting between an undercover agent and a heroin supplier could reasonably foresee the quantity of drugs involved in the conspiracy. Defendant set up and attended the original meeting in which the parties negotiated for the heroin, drove to another meeting with the main supplier, was present later in a discussion with that supplier just after the details of the delivery were discussed with the FBI agent and broker, and met with the supplier on the morning of the delivery when the shopping bag containing the heroin was in plain sight. Based upon this evidence, the trial court could conclude that defendant overheard or even participated in the discussion of how much heroin was involved. U.S. v. Lam Kwong-Wah, 966 F.2d 682 (D.C. Cir. 1992), overruled on other grounds by U.S. v. Fields, 242 F.3d 393 (D.C. Cir. 2001), on rehearing, U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001).
D.C. Circuit rules that district court erroneously attributed drug sold by co-conspirator without determining foreseeability. (275) Defendant, a drug addict, led an undercover police officer to a drug dealer who sold the officer a $20 rock of crack. Defendant was sentenced not only for the 865 milligrams she distributed, but the 55 grams later found in the drug dealer’s house. The D.C. Circuit remanded for resentencing because the district court failed to determine whether the 55 grams were foreseeable to defendant. In sentencing defendant, the court mistakenly assumed that it was bound to charge defendant with everything that the dealer had in his possession, regardless of foreseeability. U.S. v. Perkins, 963 F.2d 1523 (D.C. Cir. 1992).
D.C. Circuit holds previous version of guidelines required proof that defendant should have known weight of drugs in conspiracy. (275) Defendant argued that the trial court incorrectly failed to find that he knew or reasonably could have foreseen the weight of the heroin to be distributed by his conspiracy. The D.C. Circuit agreed that the guidelines in effect prior to November 1, 1989 required proof that defendant knew or should have known the weight of the heroin to be distributed. Under the amended guidelines, scienter is not required. Since this was a substantive change, defendant must be sentenced under the guidelines in effect at the time of his offense. The case was remanded for the district court to determine whether defendant had the requisite scienter. U.S. v. Lam Kwong-Wah, 924 F.2d 298 (D.C. Cir. 1991).
Indiana District Court holds that defendant was “otherwise accountable” for drugs possessed by his coconspirators. (275) The Relevant Conduct section of the guidelines, 1B1.3, provides that a defendant is “otherwise accountable” for the conduct of others in furtherance of jointly undertaken criminal activity that was “reasonably foreseeable” by the defendant. Here the defendant contributed money for the original purchase of cocaine and regularly received quantities ranging from one-quarter ounce to an ounce from the shipments his codefendants received from the supplier. The Northern District Court of Ohio ruled that “all shipments from [the supplier] were in furtherance of the conspiracy and were reasonably foreseeable to [the defendant].” Defendant’s offense level was properly set according to the total amount of cocaine received by the conspirators. U.S. v. Sergio, 734 F.Supp. 842 (N.D. Indiana 1990).
Michigan District Court finds that conspiracy to distribute more drugs than specified in count of conviction was not basis for increase of offense level. (275) Two defendants were indicted on charges of conspiracy to distribute five or more kilograms of cocaine, but the jury only convicted them of the included offense of conspiracy to distribute 500 grams or more. The Eastern District Court of Michigan held that Section 1B1.3(a)(2) did not permit the defendants to be sentenced on the basis of the offense charged. Activity in connection with the distribution of five or more kilograms could not logically occur in connection with distribution of 500 or more grams. Thus, § 1B1.2(a)(2) is not applicable even if the sentencing court is convinced that the defendants had in fact conspired to distribute 5 kg or more. To do so would result in the multiple charging of greater and lesser offenses. The court found that application note 1 conflicts with the guidelines insofar as it is inconsistent with this interpretation. U.S. v. Moreno, 710 F.Supp. 1136 (E.D. Mich. 1989).
Article identifies difficulties in basing drug sentences on quantity. (275) Catharine M. Goodwin argues that the guidelines currently fail to distinguish among defendants with differing culpability and are often difficult to apply. The author notes special difficulties in determining what actions by conspirators should be regarded as sufficiently “foreseeable” to be included in the relevant conduct determination and in calculating drug quantities where the evidence is sparse or the transaction was never consummated. She proposes amendments that might improve the process. Goodwin, Catharine M., Sentencing Narcotics Cases Where Drug Amount Is a Poor Indicator of Relative Culpability, 4 Fed. Sent. Rptr. 226-29 (1992).