UNITED STATES of America, Plaintiff-Appellee, v. Jesus FIGUEROA-LABRADA, a/k/a Chuy, Defendant-Appellant.
No. 12-6090.
United States Court of Appeals, Tenth Circuit.
June 28, 2013.
720 F.3d 1258
David P. Petermann, Assistant United States Attorney (Sanford C. Coats, United States Attorney, Suzanne Mitchell, Assistant United States Attorney, with him on the brief), Office of the United States Attorney for the Western District of Oklahoma, Oklahoma City, OK, for Plaintiff-Appellee.
Before HOLMES, MURPHY, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
I. INTRODUCTION
In 2011, a methamphetamine dealer in Oklahoma City and several of his buyers and sellers were indicted for their alleged involvement in a methamphetamine distribution conspiracy. Jesus Figueroa-Labrada, one of the buyers, was convicted of conspiring to possess methamphetamine with intent to distribute. Mr. Figueroa was involved in only three of the conspiracy‘s eight drug transactions, but his presentence investigation report (“PSR“) calculated his advisory sentencing range under the U.S. Sentencing Guidelines (the “Guidelines“) by attributing to him as relevant conduct all of the methamphetamine distributed through the conspiracy, more than doubling his Guidelines range. The sentencing court adopted the PSR‘s Guidelines calculation to determine Mr. Figueroa‘s sentence but made no particularized findings on his relevant conduct. On appeal, Mr. Figueroa challenges (1) the district court‘s calculation of methamphetamine attributable to him and (2) the district court‘s failure to make particularized findings. Exercising jurisdiction pursuant to
II. BACKGROUND
In December 2010, the Drug Enforcement Administration and the Department of Homeland Security began a methamphetamine distribution investigation in Oklahoma City. The agencies wiretapped suspect Rafael Quintero-Rivas‘s phone. From monitoring his calls, the Government identified eight methamphetamine transactions arranged by Mr. Quintero-Rivas. Mr. Figueroa purchased methamphetamine from Mr. Quintero-Rivas on three occasions. Mr. Quintero-Rivas arranged for seller Eloy Villa to make the delivery on one occasion and seller Ivan Guzman-Torres to deliver on another. In addition, during one phone call with Mr. Figueroa, Mr. Quintero-Rivas referenced another buyer, Valente Campos, suggesting that Mr. Figueroa knew that Mr. Campos also bought drugs from Mr. Quintero-Rivas.
Police arrested seven individuals, including Mr. Figueroa, on June 7, 2011. When police arrested Mr. Figueroa, they found stored in his phone the numbers of Mr. Quintero-Rivas and two other sellers, Mr. Villa and Jose Angel Gonzalez-Gondarilla. All seven individuals—Mr. Quintero-Rivas, Mr. Figueroa, Mr. Villa, Mr. Guzman, Mr. Campos, Mr. Gonzalez, and another buyer, Mr. Lechuga—were indicted for conspiring to possess methamphetamine with the intent to distribute, among other charges.
A. Jury Trial
Mr. Figueroa was tried along with Mr. Quintero-Rivas, Mr. Gonzalez, and Mr. Campos. The indictment charged Mr. Figueroa with one count of conspiracy, in violation of
At trial, the Government produced evidence that Mr. Quintero-Rivas facilitated eight methamphetamine transactions. Only three of the eight transactions involved Mr. Figueroa. The evidence showed that the conspiracy began on April 22, 2011, when Mr. Figueroa purchased one-half ounce of methamphetamine from Mr. Quintero-Rivas. Mr. Figueroa later purchased another one-half ounce on April 28 and one ounce on May 6. The total amount of methamphetamine from the three transactions in which Mr. Figueroa was personally involved was 56.7 grams.
The evidence did not show that Mr. Figueroa was involved in any of the conspiracy‘s other transactions. A total of 746.19 grams of methamphetamine mixture changed hands during the conspiracy,1 including the 56.7 grams from Mr. Figueroa‘s transactions. In closing argument, the prosecution maintained that all eight transactions established a single conspiracy, making each defendant responsible for all of the methamphetamine.
The jury convicted Mr. Figueroa of conspiracy, as well as the four other counts in the indictment. The court asked the jury to complete a special interrogatory verdict form indicating for each respective defendant “the quantity or weight of methamphetamine which you find beyond
Mr. Quintero-Rivas and Mr. Figueroa began their dealings on April 22, 2011. The evidence showed that 746.19 grams of methamphetamine mixture changed hands among Mr. Quintero-Rivas and those charged for dealing with him. It is not clear whether the jury found there was one conspiracy that included Mr. Quintero-Rivas and the others, or whether there were instead several smaller conspiracies revolving around Mr. Quintero-Rivas, one of which was comprised of Mr. Quintero-Rivas and Mr. Figueroa. If the former, the jury should have checked the “500 grams or more” line on the special verdict interrogatory form for Mr. Figueroa. If the jury found that Mr. Figueroa‘s conspiracy was only with Mr. Quintero-Rivas, then it correctly checked “50 grams or more, but less than 500 grams of ... methamphetamine” as consistent with the 56.7 grams involved in the three transactions in which Mr. Figueroa participated. Resolution of the jury‘s actual finding of one large conspiracy or several smaller ones is unnecessary to our analysis of this appeal, except to point out that a conspiracy limited to Mr. Figueroa, Mr. Quintero-Rivas, and 56.7 grams of methamphetamine does not support attributing 746.19 grams to Mr. Figueroa as relevant conduct.
B. Presentence Investigation Report
Although the trial evidence showed that Mr. Figueroa participated in three transactions, the PSR included in his relevant conduct the 746.19 grams of methamphetamine mixture from all eight transactions associated with the conspiracy. Pursuant to
In contrast, the PSRs for each of the other three codefendants attributed to them amounts consistent with what the jury marked on the special verdict form. Had Mr. Figueroa‘s relevant conduct been limited to the amount of methamphetamine involved in his transactions—56.7 grams—his base offense level would have been 26, and his Guidelines range would have been 63 to 78 months. See
C. Sentencing Hearing
The district court began the sentencing hearing by asking Mr. Figueroa and his counsel whether they had any objections to the PSR. They did not, and his counsel stated he was ready to proceed. The judge again asked, “[I]s there any suggestion ... of any inaccuracies in the presen-
After the defense failed to object to the methamphetamine calculation, the Government noted that Mr. Figueroa‘s PSR, which attributed 746.19 grams of methamphetamine mixture to him, was not consistent with his special interrogatory. This differed from the other defendants’ PSRs, which were consistent with their special interrogatories. The prosecution asserted that Mr. Figueroa‘s PSR correctly calculated the amount. But because the Government had failed to object to the other defendants’ PSRs, it “urg[ed] the Court to consider what Mr. [Figueroa] actually possessed” to “avoid an [unwarranted] sentencing disparity.” Id. at 735. The prosecution offered to provide the court with a new sentencing calculation based on that amount.
The district court decided that if Mr. Figueroa‘s PSR calculation were correct, it would be better to “start with a correctly calculated” Guidelines sentencing range and have the Government file out-of-time objections to the other defendants’ PSRs to fix the disparity. Id. at 736. Notably, Mr. Figueroa‘s counsel did not object or make any argument, even after the prosecution identified this issue and offered to recalculate Mr. Figueroa‘s Guidelines range based on the lower amount of methamphetamine attributed to him on the special verdict form. The judge concluded: “In light of the absence of objection to the presentence report here, I will adopt the presentence report as the findings of the Court on all undisputed factual matters and referenced in it.” Id. at 737. The court made no particularized findings on relevant conduct and failed to note the absence of particularized findings in the PSR.
The district court adopted the PSR‘s calculation of 746.19 grams attributable to Mr. Figueroa and its Guidelines range calculation of 151 to 188 months. Due to Mr. Figueroa‘s lack of any prior convictions and his good employment history, the judge gave him a below-Guidelines sentence of 120 months in prison3 and four years of supervised release.
III. DISCUSSION
On appeal, Mr. Figueroa asserts two claims of sentencing error. First, he contends that the district court erred by using the Guidelines calculation in the PSR, which attributed to Mr. Figueroa the drug amount from all eight drug transactions instead of only the amount from the three transactions in which he was directly involved. Second, he argues that even if the district court did not err in using the PSR‘s calculation, it erred by failing to make particularized findings concerning whether all of the drug sales were properly attributable to Mr. Figueroa.
We reverse and remand on this second issue because the district court failed to make particularized findings.
A. Waiver or Forfeiture
The district court adopted the PSR‘s relevant conduct attribution of drugs to Mr. Figueroa. The court did not make and the PSR did not contain any particularized findings to support the attribution. Mr. Figueroa‘s attorney did not object to the PSR‘s attribution of relevant conduct, request the court to make partic-
A sentencing court must make particularized findings to support the attribution of a coconspirator‘s actions to the defendant as relevant conduct, whether or not the defendant asks it to do so or disputes the attribution. See
In Chee, the defendant did not challenge a lack of particularized findings on relevant conduct, but rather argued that the district court failed to make particularized findings about his physical condition at sentencing, which could have justified a downward departure under
Here, Mr. Figueroa‘s failure to request particularized findings did not relieve the district court of its obligation to make them. The question is whether his counsel‘s failure to object to the court‘s failure to make particularized findings and his acquiescence in the relevant conduct determination waived the particularized findings issue for this appeal.
At Mr. Figueroa‘s sentencing hearing, the district court gave defense counsel the opportunity to object to the PSR‘s calculations, but defense counsel did not object. The prosecution then alerted the court and defense counsel to the discrepancy between Mr. Figueroa‘s PSR and the PSRs of his codefendants. Defense counsel did not object at that point either. Nor did counsel object to the lack of particularized findings to support the relevant conduct determination.
Although the question is close, this case does not present a “classic waiver situation where a party actually identified the issue, deliberately considered it, and then affirmatively acted in a manner that abandoned any claim on the issue.” United States v. Cruz-Rodriguez, 570 F.3d 1179, 1185 (10th Cir.2009) (quotations omitted). Mr. Figueroa‘s counsel not only should have objected to the PSR after being alerted to the discrepancy between Mr. Figueroa‘s and the other defendants’ PSRs, he also should have objected to the court‘s failure to make particularized findings. But his failure to do the latter more closely resembles inadvertent neglect than an intentional decision to abandon a claim. Mr. Figueroa‘s counsel did nothing to indicate that he affirmatively wished to waive the district court‘s requirement to make particularized findings.
B. The Role of Particularized Findings in Drug Amount Calculations
District courts calculate sentences by first determining the Guidelines section applicable to the statute under which the defendant was convicted.
The amount of drugs attributable to Mr. Figueroa at sentencing is not necessarily based on the overall amount involved in the conspiracy for which he was convicted or on the transactions in which he personally participated. Instead, the sentencing court considers a set of factors known as “relevant conduct.” Id.
Relevant conduct includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant” and “all reasonably foreseeable acts and omissions of others in furtherance of [a] jointly undertaken criminal activity.” Id.
A defendant is therefore “accountable for all quantities of contraband with which he was directly involved and ... all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.”
“Proper attribution at sentencing requires the district court to analyze, and make particularized findings about, the scope of the specific agreement the individual defendant joined in relation to the conspiracy as a whole.” Melton, 131 F.3d at 1404 (emphasis added) (quotations omitted). When several defendants are convicted for the same conspiracy, the sentencing court must make particularized findings regarding the scope of each defendant‘s “jointly undertaken criminal activity” within the conspiracy, which is “not necessarily the same as the scope of the entire conspiracy,” before it can determine the amount of drugs attributable as relevant conduct.
C. Plain Error
Mr. Figueroa challenges the sentencing court‘s failure to make particularized findings about the scope of his jointly undertaken criminal activity when it determined the drug quantity attributed to him as relevant conduct. Although the district court did not make particularized findings
To prevail under the plain error standard, Mr. Figueroa must show “there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Teague, 443 F.3d at 1314 (quotations omitted).
a. Error
Mr. Figueroa is correct that the sentencing court must make particularized findings about the scope of a defendant‘s jointly undertaken criminal activity to determine the correct amount of drugs to attribute to him. Green, 175 F.3d at 837; see also Melton, 131 F.3d at 1404 (“Proper attribution at sentencing requires the district court to analyze, and make ‘particularized findings’ about, the scope of the specific agreement the individual defendant joined in relation to the conspiracy as a whole.“).
The Government notified the court of problems with the PSR that could give rise to an appeal if the court accepted the PSR‘s determination. The district court nevertheless adopted the PSR “as the findings of the Court on all undisputed factual matters referenced in it” without making particularized findings. ROA, Vol. III at 737.
A sentencing court “may accept any undisputed portion of the presentence report as a finding of fact.”
Mr. Figueroa‘s PSR included information on his charges and convictions and his offense conduct. The PSR did not, however, contain particularized findings. It did not discuss Mr. Figueroa‘s relevant conduct or explain how the amount of drugs that it attributed to him was reasonably foreseeable and within the scope of his jointly undertaken criminal activity. Even though the district court accepted Mr. Figueroa‘s undisputed PSR as its findings of fact, which is allowed under
b. Plain
“To warrant reversal on a plain error standard of review, however, this error must also be clear or obvious under well-settled law.” United States v. Mendoza, 543 F.3d 1186, 1192 (10th Cir.2008) (quotations omitted). It is well-settled law in our circuit that jointly undertaken criminal activity and “reasonable foreseeability”
Mr. Figueroa challenges the district court‘s failure to make particularized findings on jointly undertaken criminal activity. Sells and Green leave no room for doubt that the district court must make particularized findings (or adopt particularized findings made in the PSR) on both jointly undertaken criminal activity and reasonable foreseeability before attributing the actions of coconspirators to a defendant as relevant conduct. The court‘s failure to make those findings on jointly undertaken criminal activity was therefore plain error.
c. Substantial rights
The third factor of plain error review requires that the error affected Mr. Figueroa‘s substantial rights. United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.2006). “Ordinarily, an error affects substantial rights only if it affected the outcome of the district court proceedings.” United States v. Herron, 432 F.3d 1127, 1134 (10th Cir.2005) (quotations omitted). To satisfy this element of the plain error test, Mr. Figueroa “must show a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Clark, 415 F.3d 1234, 1240 (10th Cir.2005) (quotations omitted).
The district court committed an obvious error by failing to make the necessary particularized findings. As explained above, in a drug conspiracy, the district court is required to make particularized findings about the scope of the defendant‘s jointly undertaken criminal activity and the foreseeability of the coconspirator‘s actions to the defendant. Once it has made particularized findings, the district court must apply the Guidelines to those findings to determine the amount of drugs that it should attribute to the defendant as relevant conduct. The Guidelines commentary is “authoritative unless it violates the Constitution or a federal statute, or is plainly inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
Had the district court made particularized findings, it is reasonably probable that it would have applied a different Guidelines range for sentencing, leading to a much different outcome. Sells, 477 F.3d at 1242. (“Upon close examination of the evidence, the district court might agree with [the defendant] that his [jointly undertaken criminal activity] was limited and decrease his [Guidelines range] accordingly.“).
The Guidelines commentary to
No evidence indicated that Mr. Figueroa intended to engage in jointly undertaken criminal activity with Mr. Campos, Mr. Villa, or Mr. Gonzalez outside of his three purchases. Under the Guidelines commentary, the evidence did not establish that all of the conspiracy transactions were within the scope of Mr. Figueroa‘s jointly undertaken criminal activity. Such proof is required to attribute all of the drugs from the conspiracy‘s transactions to Mr. Figueroa as relevant conduct.
Because the district court attributed all of the drugs in the conspiracy to Mr. Figueroa as relevant conduct without making particularized findings about the actual scope of his jointly undertaken criminal activity, his total offense level was 34, and his advisory Guidelines range was 151 to 188 months. Had the sentencing court made the necessary particularized findings, it is at least reasonably probable that it would have attributed to Mr. Figueroa only the amount of drugs from transactions in which he was directly involved—56.7 grams. His base offense level would then have been 26, and his Guidelines range would have been 63 to 78 months. See
“Circuit precedent establishes that the application of the wrong guideline range through obvious error constitutes a fundamental error affecting substantial rights within the meaning of
d. Serious effect on the fairness, integrity, or reputation of judicial proceedings
The fourth factor of plain error review requires that the error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Teague, 443 F.3d at 1314. When we apply the fourth element of plain error review to forfeited sentencing errors, the “key concern” is “whether correct application of the sentencing laws would likely significantly reduce the length of the sentence.” United States v. Cordery, 656 F.3d 1103, 1108 (10th Cir.2011).
We cannot say for certain that particularized findings would have yielded a different sentence. But the foregoing analysis shows that “the district court would likely impose a significantly lighter sentence on remand,” which satisfies the fourth element of plain error review. United States v. Thomas, 410 F.3d 1235, 1249 (10th Cir.2005) (emphasis added); see also United States v. Meacham, 567 F.3d 1184, 1190 (10th Cir.2009) (holding that satisfaction of the fourth factor of plain error review is satisfied by “a strong possibility of receiving a significantly lower sentence” (emphasis added) (quotations omitted)). “Not every error resulting in an
As explained above, it is at least reasonably probable that the district court‘s failure to make particularized findings led it to apply a Guidelines range of 151 to 188 months, more than double the 63 to 78 month Guidelines range that Mr. Figueroa probably should have received based on the evidence from trial. At sentencing, the district court said that it gave “significant weight” to the Guidelines calculation and explained that it was sentencing Mr. Figueroa below the Guidelines range based on his lack of prior convictions and good employment history. ROA, Vol. II at 742. Had the court applied the same weight to the 63 to 78 month Guidelines range, there is a “strong possibility” the court would have given Mr. Figueroa a sentence “significantly lighter” than the one he is currently serving. See Cordery, 656 F.3d at 1108 (holding that the likelihood of a sentence that was five months or ten percent longer than it should have been satisfied the fourth element of plain error review).
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The district court‘s failure to make particularized findings was an obvious error and likely resulted in a Guidelines range that was calculated in conflict with controlling law in the Guidelines commentary. This error was plain, affected Mr. Figueroa‘s substantial rights, and had a serious effect on the fairness and integrity of his judicial proceedings.
IV. CONCLUSION
The district court plainly erred by relying on the undisputed PSR instead of making particularized findings. We reverse the sentence imposed by the district court and remand for resentencing.