Case Information
*1 Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM: [*]
In March 2006, defendant-appellant Juan Valenzuela-Contreras shot and killed Vernon Harris during a dispute over payment for marijuana. When police subsequently arrested Valenzuela in his home, they seized, inter alia , heroin, cocaine, marijuana, and numerous firearms. Valenzuela pleaded guilty to Harris’s murder in state court, and a federal jury subsequently found Valenzuela guilty of: (1) possession of heroin with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (count one); (2) possession of cocaine with the *2 intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (count two); and (3) possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c) (count three). Though Valenzuela was never charged with possession of marijuana with intent to distribute, the presentence report stated that the marijuаna transaction involving Harris was relevant conduct pursuant to United States Sentencing Guideline § 1B1.3 and that Harris’s murder was a harm resulting therefrom, also in accordance with § 1B1.3. The district court agreed and therefore cross referenced the murder pursuant to § 2D1.1(d)(1), ruling that Valenzuela’s total offense level was 43. Valenzuela never objected to his sentence.
Valenzuela timely appealed, arguing that the district court plainly erred when it determined that the marijuana transaction and murder were relevant conduct pursuant to § 1B1.3. For the following reasons, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On or before March 20, 2006, Juan Valenzuela-Contreras “fronted” approximately 25 pounds of marijuana to Pablo Escobar. Escobar fronted the marijuana to Vernon Harris. On March 20, 2006, Valenzuela, Escobar, and Federico San Vallejo traveled to Harris’s residence in Dallas, Texas, in order to collect part of the $8,000 that he owed to Valenzuela as payment for the marijuana originally fronted to Escobar. Harris said that he did not have the money and refused to sign over his Ford Expedition as payment. Valenzuela then shot Harris at least three times in thе body and head. Valenzuela, Escobar, and Vallejo fled the scene before police arrived. The following day, Harris died from the gunshot wounds.
*3 Escobar subsequently told law enforcement officers that Valenzuela had shot Harris. Dallas officers identified Valenzuela’s residence at 5301 Greenwood Way in North Richland Hills, Texas. The police received information that Valenzuela used the residence to stash drugs, and a state warrant was later obtained for Valenzuela’s arrest.
As the officers were preparing to execute the warrant, they saw Edgar Delgado and Vallejo exiting the residence. The two men were detained, and soon thereafter the police found Valenzuela in the residence. After the officers obtainеd a search warrant to search the residence, they seized, inter alia , heroin, marijuana, cocaine, three digital scales, drug ledgers, $24,461 in U.S. currency, and a 9mm pistol. Valenzuela was arrested on the outstanding state murder warrant and for possession of cocaine and heroin with the intent to distribute. A forensic chemist later determined that the police had seized 654.8 net grams of heroin (charged in count one), 368.5 net grams of cocaine (charged in count two), and 150.3 net grams of marijuana (not charged).
During a post-arrest interview, Valenzuela admitted his involvement in the murder and gave a detailed explanation about what occurred at Harris’s residence. He stated that Escobar had asked to borrow $8,000, which Escobar, in turn, planned to lend to Harris. Valеnzuela said that he, Escobar, and Vallejo had gone to Harris’s residence to collect $4,000 of the $8,000 debt that was due, but that Harris did not have the money. He admitted that he pulled a handgun from his waistband and shot Harris three or four times after Harris started pushing him. Valenzuela also acknowledged that Harris did not have a weapon and that the 9mm pistol that was found at the residence was the weapon he used to shoot Harris.
Valenzuela was later interviewed by agents from the Drug Enforcement Administration. Valenzuela admitted, inter alia , that: (1) the drugs seized from his residence belonged to him; (2) he was being paid $1,000 per week to allow a *4 known drug dealer to store the drugs at his residence; (3) the drug dealer had dropped off drugs at his residence three or four times; (4) each time the аmount of drugs consisted of less than one kilogram of cocaine or heroin; (5) he had as much as $20,000 at a time in the residence; (6) the drug dealer’s brother-in-law would store six or seven ounces of hydroponic marijuana at the residence; and (7) the drugs were only stored at the residence and were not sold from there. B. Procedural Background
In state court, Valenzuela pleaded guilty to Harris’s murder. At sentеncing, Vallejo testified that: (1) Harris’s murder was a drug-related killing; (2) Valenzuela fronted the marijuana to Escobar who, in turn, fronted the drugs to Harris; and (3) Valenzuela killed Harris because Harris failed to pay the money that he owed to Valenzuela for the marijuana. In federal court, on March 31, 2008, after Valenzuela pleaded not guilty, a jury found him guilty of: (1) possession of heroin with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (count one); (2) possession of cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (count two); and (3) possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c) (count three).
The presentence report (“PSR”) initially calculated a guideline offense level of 32 (151–188 month sentence) due to Valenzuela’s possession of heroin, cоcaine, and marijuana on March 21, 2006. The report then cross referenced Harris’s murder under U.S.S.G. § 2D1.1(d)(1), arriving at a total offense level of 43 with a criminal history category of I. Specifically, the PSR stated that both Harris’s murder and Valenzuela’s marijuana transaction with Escobar and Harris were relevant conduct under § 1B1.3:
Pursuant to USSG § 1B1.3(a)(1)(A)&(2), Valenzuela-Contreras’ drug-related activities in reference tо Escobar and Harris are considered relevant conduct and all part of the same course of conduct or common scheme or plan as the offense of conviction. In *5 addition, Valenzuela-Contreras’ murder of Harris was a harm that resulted from the acts and omissions of his relevant conduct and Harris’ murder was a harm that was the object of his (Valenzuela-Cоntreras’) drug-related activities. USSG § 1B1.3(a)(3).
(PSR at ¶ 21.) The court ordered a 474-month term of imprisonment as to count one, a 240-month term as to count two to run consecutively to the sentence imposed for count one, and a 60-month term as to count three to run consecutively to the sentences imposed as to counts one and two (a total of 774 months). The court further ordered that Valenzuela’s sentence run concurrently with the sentence that he was serving for his state conviction. Notably, Valenzuela made no objection to his sentence.
Valenzuela timely appealed his sentence. He primarily argues that his marijuana transaction was not relevant conduct under § 1B1.3(a)(2) and thus that Harris’s murder was not a “harm” under § 1B1.3(a)(3).
II. STANDARD OF REVIEW
Generally, this court reviews a district court’s interpretation and
application of the United States Sentencing Guidelines (the “Guidelines”) de
novo and its factual findings for clear error.
See United States v. Juarez-Duarte
,
513 F.3d 204, 208 (5th Cir. 2008). Because Valenzuela did not object to the
district court’s application of the cross reference, we review for plain error.
United States v. Simmons
, 568 F.3d 564, 566 (5th Cir. 2009) (“If . . . the
procedural objection was not presented in the district cоurt, our review is for
plain error only.”). “If an error is not properly preserved, appellate-court
authority to remedy the error . . . is strictly circumscribed.”
Puckett v. United
States
,
III. DISCUSSION
Section 2D1.1 of the Guidelines governs sentencing for drug trafficking and therefore applies to Valenzuela’s sentence for his heroin and cocaine convictions. Subsection (d)(1), entitled “Cross References,” provides that “[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111,” courts should apply § 2A1.1 “if the resulting offense level is greater than that determined under this guideline.” Section 2A1.1 establishes the base offense level for first degree murder at 43. In the present case, the district court applied this § 2D1.1(d)(1) cross reference in order to establish Valenzuela’s base offense level at 43. Valenzuela now challenges the application of this cross reference.
“[W]hether [the § 2D1.1(d)(1)] cross-reference should be applied depends
on whether the conduct to which the cross-reference refers is ‘relevant conduct’”
pursuant to § 1B1.3.
United States v. Pauley
,
[C]ross refеrences in Chapter Two . . . shall be determined on the basis of the following:
(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . .
. . . *7 that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection оr responsibility for that offense;
(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts and omissions speсified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions . . . .
U.S.S.G. § 1B1.3(a). Thus, the central question before us is whether the district court plainly erred when it ruled that Valenzuela’s marijuana transaction and Harris’s murder were relevant conduct under § 1B1.3.
*8 Before proceeding with our analysis, we find it necessary to clarify the PSR’s sentencing calculation beсause Valenzuela incorrectly characterizes it in his brief. First, the PSR states that, “[p]ursuant to USSG § 1B1.3(a)(1)(A) & [§ 1B1.3(a)(2)], Valenzuela-Contreras’ drug-related activities in reference to Escobar and Harris [i.e., the fronting of marijuana] are considered relevant conduct and all part of the same course of conduct or common scheme or plan as the offense of cоnviction.” Thus, the PSR “grouped” only the marijuana—not the murder itself—as a countable offense pursuant to § 1B1.3(a)(2). Second, the PSR states that, under § 1B1.3(a)(3), Harris’s murder “was a harm that resulted from the acts and omissions of his relevant conduct and Harris’ murder was a harm that was the object of his (Valenzuela-Contreras’) drug-related activities.” In other words, the PSR reasoned that the marijuana transaction constituted relevant conduct under § 1B1.3(a)(1)(A) and (a)(2) and that—because Valenzuela killed Harris over a dispute about the marijuana—the murder was a corresponding “harm” under (a)(3). Finally, the PSR states that the [4]
§ 2D1.1(d)(1) murder cross reference applied to Valenzuela’s sentence and thus established a base offense level of 43.
The district court did not err when it first grouped Valenzuela’s marijuana
transaction as relevant conduct pursuant to § 1B1.3(a)(2). Indeed, the
[5]
marijuana was groupable under § 1B1.3(a)(2) as an act caused by the defendant
alongside other “counts involving substantially the same harm”—i.e., the counts
for heroin and cocaine possession with intent to distribute—under § 3D1.2(d).
Commentary in the Guidelines provides that, “in a drug distribution case, . . .
types of drugs not specified in the count of conviction are to be included in
*9
determining the offense level if they were part of the same course of conduct or
part of a common scheme or plan as the count of conviction.” U.S.S.G. § 1B1.3
cmt. background. Furthermore, “[t]ypes . . . of drugs not specified in the count
of conviction may be considered in determining the offense level.” U.S.S.G. §
2D1.1 cmt. n.12. This court has previously ruled that “it is permissible for a
sentencing court to consider a defendant’s transactions in one type of drug even
if his conviction was for conspiracy involving a different type of drug . . .
assuming that those transactions otherwise satisfy the criteria for relevant
conduct prescribed by the guidelines.”
United States v. McCaskey
,
Furthermore, the district court did not err when it reasoned pursuant to
§ 1B1.3(a)(3) that Harris’s murder was a harm resulting from the marijuana
transaction. In his primary briefing before this court, Valenzuela does not
directly challenge the district court’s application of this specific prоvision. This
*10
court has not precisely defined what may constitute harm under this provision,
though it has noted that the provision contains neither a culpability
requirement,
see United States v. Mitchell
,
Because the district court properly reasoned that the marijuana transaction and Harris’s murder were relevant conduct pursuant to § 1B1.3, it did not err, plainly or otherwise, when it applied the § 2D1.1(d)(1) murder cross reference to Valenzuela’s sentencе.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Valenzuela’s sentence.
court erred because Harris’s murder was related to other relevant conduct under § 1B1.3(a)(2)
(the marijuana transaction) and not to the offenses of conviction (the heroin and cocaine
possession). As support for this argument, he cites to the Seventh and District of Columbia
Circuits, both of which have allegеdly prohibited this sort of “daisy-chain reasoning.”
See
United States v. Bullock
,
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.
[1] “Fronting” is the advancing of drugs before payment is made.
[2] 18 U.S.C. § 1111 defines murder as “the unlawful killing of a human being with malice aforethought.”
[3] Valenzuela wrongly suggests that the PSR “grouped” Harris’s murder as relevant conduct pursuant to § 1B1.3(a)(2).
[4] Valenzuela persuasively argues that § 1B1.3(a)(1)(A) does not apply because neither the marijuana transaction nor Harris’s murder occurred during, in preparation for, or in the course of attempting to avoid detection or responsibility for the offenses of conviction. The government appears to concede that Valenzuela is correct. Regardless, the PSR did not solely base its sentencing enhancement on this provision; it also cited to § 1B1.3(a)(2) as grounds for considering the marijuana as relevant conduct. We address the applicability of this provision below.
[5] Vаlenzuela argues that § 1B1.3(a)(2) and (a)(3) incorporate the “occurred during the commission” language that exists at the end of § 1B1.3(a)(1). In other words, he contends that § 1B1.3(a)(2) and (a)(3) do not apply for the same reason that § 1B1.3(a)(1)(A) does not apply: the killing of Harris did not occur during, in preparation for, or in the course of attempting to avoid detection or responsibility for the offenses of conviction. Valenzuela’s interpretation is unavailing. The plain language of § 1B1.3(a)(2) only refers to (1)(A) and (1)(B), not the “occurred during the commission” language which belongs more generally to § 1B1.3(a)(1). Otherwise, (a)(2) would have referred broadly to section (a)(1). Furthermore, as the government notes, the commentary accompanying § 1B1.3 contemplates scenarios in whiсh acts and omissions that are part of the “same course of conduct or common scheme or plan” may be included under § 1B1.3(a)(2) but do not occur during, in preparation for, or in the course of attempting to avoid detection or responsibility for the offense of conviction. U.S.S.G. § 1B1.3 cmt. n.3 (“For example, where the defendant engaged in three drug sales of 10, 15, and 20 grams оf cocaine, as part of the same course of conduct or common scheme or plan, subsection (a)(2) provides that the total quantity of cocaine involved (45 grams) is to be used to determine the offense level even if the defendant is convicted of a single count charging only one of the sales.”). Similar reasons undermine Valenzuela’s argument that the “occurred during the commission” language limits § 1B1.3(a)(3). Most importantly, the plain language of this section refers to both (a)(1) and (a)(2), suggesting that acts under (a)(2)—which itself does not include the “occurred during the commission” language—may be considered regardless of the specific timing of the act or omission.
[6] Valenzuela argues in a 28(j) letter that the district court plainly erred in ruling Harris’s murder was relevant conduct under § 1B1.3(a)(3). Specifically, he argues that the