United States v. Billy Flores
2013 U.S. App. LEXIS 15960
| 9th Cir. | 2013Background
- Flores was convicted of conspiracy and distribution of oxycodone, possession with intent to distribute methadone, and possession of a firearm in furtherance of the methadone offense; sentenced to 240 months (180 months on drug counts, consecutive 60 months on § 924(c)).
- PSR attributed 1,000–1,500 80 mg oxycodone pills per day from Oct 2007–Oct 2009; district court adopted a December 2007 start date and a conservative 500 pills/day estimate, yielding a Guidelines base offense level 38 (after conversions).
- District court applied a four-level leadership enhancement and a two-level § 3B1.4 enhancement for use of a person under 18 (Shelbie Ingham), but did not make express findings as to Ingham’s age when she joined the conspiracy.
- Flores objected to (1) the drug-quantity calculation and (2) the minor-use enhancement. At sentencing the court relied on witness testimony (coconspirators and a post-trial sentencing witness) and the PSR; it reduced the daily-pills estimate to 500 as a cautious measure.
- This panel held any error in estimating drug quantity was harmless (because even shorter time frames or lower rates still produced the same highest base level), but vacated and remanded for resentencing because the § 3B1.4 enhancement lacked an adequate factual basis and the court did not resolve the factual dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court’s drug-quantity approximation (multiplier method) was reliable and whether court erred by not erring further on side of caution | Government: multiplier method supported by coconspirator testimony, surveillance, and controlled buys; 500 pills/day conservative and sustainable | Flores: PSR and court overestimated daily quantity and start date; method insufficiently reliable and court failed to err on side of caution | Any error in drug-quantity estimation was harmless — even shorter start dates or lower daily amounts would not have reduced base level below 38; no remand for this issue |
| Whether the § 3B1.4 two-level enhancement for use of a person under 18 was supported by the record | Government: district court had access to PSR material and the record shows Ingham’s involvement; did not oppose the court’s finding at sentencing | Flores: no evidence in the record establishing Ingham was under 18 when she participated; PSR language is conclusory and government bore burden to prove by preponderance | Court abused its discretion imposing § 3B1.4 because it failed to state facts supporting the finding that Ingham was a minor at time of involvement; remanded for resentencing and district court may consider additional evidence |
Key Cases Cited
- Kilby v. United States, 443 F.3d 1135 (9th Cir. 2006) (approach to reviewing Guidelines calculation and remand rule)
- Rosacker v. United States, 314 F.3d 422 (9th Cir. 2002) (de novo review of drug-quantity approximation method)
- United States v. Booker, 543 U.S. 220 (2005) (advisory Guidelines framework)
- Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion review of sentencing and requirement to explain chosen sentence)
- United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc) (procedural requirements and when explanation may be inferred from record)
- United States v. Culps, 300 F.3d 1069 (9th Cir. 2002) (standards for drug-quantity approximation and need to "err on the side of caution")
- United States v. Walton, 908 F.2d 1298 (9th Cir. 1990) (when multiple plausible estimates exist, court must err on side of caution)
- United States v. Alvarez, 358 F.3d 1194 (9th Cir. 2004) (coconspirator testimony can support quantity findings)
- United States v. Navarro, 979 F.2d 786 (9th Cir. 1992) (court cannot adopt conclusory PSR statements unsupported by facts)
- United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011) (incorrect enhancement not harmless where unclear court would impose same sentence if Guidelines were correctly considered)