United States v. Agis-Meza ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
Nos. 94-9389, 94-9394, 94-9398 and 95-8140.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mario Alberto AGIS-MEZA, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Bulmaro AGIS-MEZA, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Alfredo NEGRETE, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Moises LOPEZ-PONCE, a.k.a. Moises Ponce Lopez, a.k.a. Antonio
Jose Rodriguez, Defendant-Appellant.
Nov. 20, 1996.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-531-5), Orinda D. Evans, Judge.
Before BARKETT, Circuit Judge, and DYER and HILL, Senior Circuit
Judges.
DYER, Senior Circuit Judge:
The sole issue we consider in this appeal is whether the
District Court erred in sentencing Defendants Mario Agis-Meza,
Bulmaro Agis-Meza, and Jose Negrete by attributing a quantity of
drugs to each defendant through extrapolating kilograms of
marijuana from cash and empty wrappers seized at a "stash" house.1
1
Several other issues have been raised in this appeal.
Mario Agis-Meza and Bulmaro Agis-Meza appeal the district court's
In essence, the District Court double counted the quantity of
marijuana by finding that the wrappers and the cash represented two
separate illegal transactions. Because a preponderance of the
evidence does not support that finding, we vacate the sentences.
I. PROCEDURAL AND FACTUAL BACKGROUND
This case began when Emery Worldwide Freight office in
Brownsville, Texas alerted United States Customs to a suspicious
package addressed for delivery in Georgia. In Emery's Atlanta
office, a search revealed that the package contained about
seventy-eight pounds of marijuana. The package was re-sealed and
prepared for a controlled delivery to 1806 Crestwood Drive,
Acworth, Georgia, by a local narcotics unit. On the first delivery
attempt, the agent left a notice for the addressee to contact
Emery's office. On the second attempt, Donald Bourque met the
agents at the house and accepted delivery of the package, whereupon
he was arrested. Agents found a room key to a local Red Roof Inn
motel in Bourque's pocket.
After his arrest, Bourque told the agents that a person known
to him as "Compadre" (later identified as Jose Negrete), who drove
a burgundy Cadillac, had paid him $1,000 and dropped him off at
decision to enhance their sentences for constructive possession
of a firearm for purposes of U.S.S.G. § 2D1.1(b)(1) and denial of
relief from the mandatory minimum sentence pursuant to U.S.S.G.
§§ 5C1.2(2) and (5). Jose Negrete argues that the enhancement of
his sentence for his role in the offense was based on
insufficient evidence. Moises Lopez-Ponce asserts the district
court erred in failing to reduce his sentence for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1, his "minor" or
"minimal" role pursuant to § 3B1.2, and in enhancing his sentence
for obstruction pursuant to U.S.S.G. § 3C1.1. Our review of the
record persuades us that the district court did not err and we
therefore summarily affirm the court's disposition of these
issues. See Eleventh Cir.R. 36-1.
1806 Crestwood Drive with instructions to wait for the delivery of
a package. Bourque was told that "Augusto" would return for him.
The agents proceeded to the Red Roof Inn where they found
"Augusto," a/k/a Ariosto Cano, and a copy of the Emery Worldwide
shipping order relating to the drug package. They also found in
Cano's possession a piece of paper with Negrete's digital pager
number.
Surveillance agents picked up the burgundy Cadillac at 1803
May Glen Court, in the same subdivision where the controlled
delivery was made. They followed and eventually stopped the
vehicle. The occupants were Jose Negrete, Mario Agis-Meza, Bulmaro
Agis-Meza, and Negrete's wife. During a search the agents
recovered cash, blank money orders, and documents identifying
houses owned by Jose Negrete and his wife in the Atlanta
metropolitan area located at 1806 Crestwood Drive, 1803 May Glen
Court, 1817 Hickory Creek Court, and 4072 Singletree Place. Jose
Negrete admitted that these properties were purchased as part of
the conspiracy to store marijuana, that marijuana was stored at his
house, and that his role in the conspiracy was to provide the
properties and to assist the other conspirators at their request.
Negrete stated also that this was the first delivery to his house,
for which he was paid $1,000; on previous occasions Mario Agis-
Meza and Bulmaro Agis-Meza made deliveries to either a hotel or
motel.
Agents searched the other three properties owned by Jose
Negrete and his wife. At 1803 May Glen Court agents found 111
pounds of marijuana packaged in twenty-eight bricks, eighty-nine
empty plastic wrappers with marijuana residue, cash totalling
$362,950,2 and four firearms. A search at 4072 Singletree Place
recovered another ninety-two pounds of marijuana.
A grand jury returned an indictment charging Jose Negrete,
Mario Agis-Meza, and Bulmaro Agis-Meza with conspiracy to possess
marijuana, in violation of 21 U.S.C. § 846, and possession of
marijuana, in violation of 21 U.S.C. § 841. The indictment also
charged that Jose Negrete possessed a machine gun, in violation of
18 U.S.C. § 922(o), and used and carried firearms during and in
relation to the drug conspiracy count, in violation of 18 U.S.C. §
924(c). Each defendant pled guilty to the drug conspiracy count
and all remaining counts were dismissed.
At sentencing the district court found that the empty
wrappers with marijuana residue and the $362,950 did not represent
a single marijuana transaction. The court adopted the probation
officer's calculation of the weight of marijuana represented by the
empty wrappers and the conversion of cash to a kilogram equivalent,
attributing 456 kilograms of marijuana to Jose Negrete, and 381
kilograms of marijuana to Mario Agis-Meza and Bulmaro Agis-Meza
pursuant to U.S.S.G. § 2D1.1. We review the district court's
determination of the quantity of drugs for clear error. United
States v. Beasley, 2 F.3d 1551, 1561 (11th Cir.1993), cert. denied,
--- U.S. ----, 114 S. Ct. 2751, 129 L. Ed. 2d 869 (1994).
II. DISCUSSION
2
According to the Presentence Investigation Report ("PSR"),
the eighty-nine wrappers and the $362,950 represented
approximately 161.48 and 170 kilograms of marijuana,
respectively.
A sentencing court must attribute to a defendant all the
drugs foreseeably distributed pursuant to a common scheme of which
the defendant's offense of conviction is a part. United States v.
Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995). To determine the
quantity of drugs attributable to a particular defendant, the
sentencing court should make findings of fact, id., which often
begins with a review of the PSR. When a defendant objects to a
factual finding that is to be used as a basis for sentencing, the
government bears the burden to establish the disputed fact by a
preponderance of the evidence. Id. See also United States v.
Andrews, 953 F.2d 1312, 1319 (11th Cir.), cert. denied, 505 U.S.
1210, 1227, 112 S. Ct. 3007, 3008, 3048, 120 L. Ed. 2d 882, 915 (1992)
("Due process is satisfied when relevant factors in a sentencing
hearing are established by a preponderance of the evidence....")
and United States v. Patrick, 983 F.2d 206, 208 (11th Cir.1993)
("The burden of persuasion and production ... falls upon the
government as a matter of due process to establish ... each
aggravating factor upon which a harsher sentence is to be based.).
The preponderance of evidence is a relaxed evidentiary standard,
however, it does not grant the court a license to sentence a
defendant in the absence of sufficient evidence when that defendant
has properly objected to a factual conclusion. Lawrence, 47 F.3d
at 1567.
At sentencing the Defendants objected to their base offense
levels, asserting that the probation officer's calculations
resulted in double counting because it was reasonable to infer that
the cash represented payment for the marijuana that had been
contained in the empty packages. The government therefore was
required to bring forth evidence to support the position that the
cash and wrappers represented two separate transactions. We thus
examine whether the district court clearly erred in finding that
the government proved by a preponderance of the evidence that the
$362,950 was not a payment for the marijuana that had been packaged
in the eighty-nine wrappers.
The district court apparently based its decision to adopt the
probation officer's calculations on logic rather than evidence. At
the sentencing hearing the court stated, "The amounts that the
probation officer has set out in the presentence report are a
snapshot of the amounts that were captured on one day, the day of
Mr. Negrete's arrest, and I just don't think it's logical to think
that this was the sum total of marijuana that was handled by this
group." The district court did not point to any evidence from
which we can even infer that the cash and the marijuana originally
packaged in the eighty-nine wrappers derived from separate
transactions. The PSR does not support the district court's
conclusion either. The probation officer wrote, "If the currency
is used to represent the sale of approximately 170 kilograms of
marijuana and was found in close proximity to the empty wrappers,
and the money is from the sale of the marijuana that came out of
the wrappers, the correct inference to be drawn is that the
currency came from the sale of the marijuana that was previously
contained in the wrappers." The phrasing of this statement
indicates the probation officer did not have evidence from which to
draw a conclusion either way.
Nevertheless, the government contends the record supports the
district court's finding because Jose Negrete admitted that more
than one delivery of marijuana had been made to the Atlanta area,
and that this particular delivery was the first one to his house.
These admissions do not prove that the cash seized at 1806
Crestwood Drive represented payment for marijuana other than that
which was contained in the specific residue-laden wrappers seized
at that same address. It is just as reasonable to infer from
Negrete's admissions that the $362,950 was received as payment for
those eighty-nine wrappers.
Finding nothing more in the record, we hold the preponderance
of evidence does not support the district court's determination of
the quantity of drugs attributable to the defendants for sentencing
purposes.
III. CONCLUSION
For the foregoing reasons, we VACATE the sentences of Jose
Negrete, Mario Agis-Meza, and Bulmaro Agis-Meza and REMAND their
cases to the district court for resentencing.