United States v. Wroblewski , 156 F. App'x 655 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-50912
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRADLEY SCOTT WROBLEWSKI,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:03-CR-1958-ALL-KC)
Before JOLLY, BEAM,* and BARKSDALE, Circuit Judges.
PER CURIAM:**
Bradley Scott Wroblewski pleaded guilty to possessing
marijuana with intent to distribute. Primarily at issue is whether
the district court clearly erred in finding Wroblewski’s prior
marijuana trafficking constituted relevant conduct for sentencing
purposes. CONVICTION AFFIRMED; REMANDED for RESENTENCING, pursuant
to United States v. Booker, 125 S. Ct. 738, 756 (2005) (holding
that any fact, other than a prior conviction, needed to support a
*
Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
**
Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
sentence exceeding the maximum authorized by the facts, must be
based on facts either admitted by the defendant or proved to a
jury).
I.
On 3 October 2003, Wroblewski entered the United States Border
Patrol Checkpoint in Desert Haven, Texas, in a rental truck. He
consented to a non-intrusive canine sniff of his truck. A canine
alerted Border Patrol Agents to a controlled substance; they
discovered approximately 675 kilograms of marijuana. In addition,
Wroblewski provided Drug Enforcement Agency Agents with a detailed
explanation of his involvement since 1999 or 2000 in a drug-
trafficking organization with Ricardo Estrada and stated that he
was not the only Estrada brother for whom Wroblewski had
distributed marijuana.
From 1997 to 1998, Wroblewski drove between 12 and 15 loads of
marijuana for Victor Estrada, Ricardo Estrada’s brother. This had
developed after another Estrada brother, Sergio Estrada, had
approached Wroblewski in 1997 and asked if he would like to make
money by driving to El Paso, Texas, and returning to Florida with
a load of marijuana. Sergio Estrada told Wroblewski that his
brother, Victor Estrada, would pay Wroblewski $500 to drive to El
Paso and another $5,000 for transporting the marijuana back to
Florida.
Wroblewski outlined his routine with Victor Estrada: he drove
through the Desert Haven Border Patrol checkpoint unloaded, while
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Victor Estrada drove his vehicle, loaded with marijuana, past the
checkpoint on a dirt road. They would meet and reload the
marijuana into Wroblewski’s vehicle. Wroblewski then drove the
loads to various destinations: Orlando, Florida; Oklahoma City,
Oklahoma; Chicago, Illinois; Des Moines, Iowa; Kansas City,
Missouri; Tulsa, Oklahoma; and Wichita, Kansas. The initial loads
contained 200 pounds of marijuana and increased in weight after
Wroblewski successfully transported several loads.
On a trip in 1998, Wroblewski kept approximately 41 kilograms
from a load; sold that amount; and kept the proceeds. After this
incident, Victor Estrada did not ask Wroblewski to transport
marijuana.
Sometime in 1999, Wroblewski contacted Victor Estrada in an
attempt to resume their trafficking relationship; he declined.
Victor Estrada’s younger brother, Ricardo Estrada, soon contacted
Wroblewski, however, and showed an interest in his services.
Wroblewski and Ricardo Estrada formed a relationship whereby
Wroblewski would transport various quantities of marijuana (from
600 to 1,300 pounds) from El Paso to Chicago.
Wroblewski was indicted for knowingly and intentionally
possessing, with intent to distribute, 100 kilograms or more of
marijuana, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(vii). He pleaded guilty in early 2004.
In addition to the sentence being based on the marijuana in
the truck when he was stopped on 3 October 2003 (approximately 675
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kilograms), Wroblewski’s presentence investigation report (PSR)
recommended, as relevant conduct, holding Wroblewski accountable
for the approximately 1400 kilograms (200 pounds per load times 12
to 15 loads) of marijuana he transported for Victor Estrada in 1997
and 1998 as part of the same drug trafficking organization. These
amounts combined for a total of approximately 2,075 kilograms of
marijuana. Accordingly, the recommended base offense level was 32,
based on possession of, with intent to distribute, between 1,000
and 3,000 kilograms of marijuana. (Had it included only the
marijuana for the charged offense, the base offense level would
have been 28.) U.S.S.G. § 2D1.1(c) (2003). Because of reductions
to that level, the sentencing range was 51 to 63 months.
Prior to sentencing, Wroblewski objected to his prior
trafficking being relevant conduct; at sentencing, he challenged
the speculative nature of using prior conduct to assess his
sentence and objected under the Supreme Court’s then-recent
decision in Blakely v. Washington, 124 S. Ct. 2531, 2536 (2004)
(holding that any fact, other than a prior conviction, used to
increase a defendant’s penalty beyond the statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt to avoid
a Sixth Amendment violation). The district court imposed a
sentence of, inter alia, 55 months incarceration.
This initial sentence was vacated; a second sentencing hearing
was held to discuss the impact of Blakely. Wroblewski’s counsel
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also discussed the use of Wroblewski’s prior trafficking as
relevant conduct. These objections were overruled, and Wroblewski
was sentenced, inter alia, to the sentencing-range minimum of 51
months incarceration.
II.
Wroblewski raises two issues. He claims Booker error because
he was sentenced under a mandatory-Guidelines scheme and contests
the use of his prior marijuana trafficking as relevant conduct.
A.
Wroblewski’s Blakely objection preserves Booker error. United
States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir. 2005). The
Government concedes such error.
Wroblewski maintained his sentence was enhanced improperly by
facts to which he had not pleaded guilty. The district court was
then bound by mandatory Guidelines. Later, Booker held they are
only advisory. 125 S. Ct. at 757.
Under our post-Booker precedent, we must remand unless the
Government can prove this error was harmless under Federal Rule of
Criminal Procedure 52(a). United States v. Mares, 402 F.3d 511,
520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). Because
the Government concedes the error was not harmless, we remand for
resentencing.
B.
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For purposes of the remand, the district court did not clearly
err in using Wroblewski’s prior trafficking as relevant conduct.
Its application of the Guidelines is reviewed as it was pre-Booker.
United States v. Villegas, 404 F.3d 355, 361-62 & n.7 (5th Cir.
2005). The court’s interpretation of the Guidelines is reviewed de
novo; its factual findings, only for clear error. United States v.
Wall, 180 F.3d 641, 644 (5th Cir. 1999).
As noted, the relevant-conduct finding is reviewed for clear
error. United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000);
Wall, 180 F.3d at 644. A finding is clearly erroneous only if,
based on our review of the record, we are “left with the definite
and firm conviction that a mistake has been committed”. In re
Dennis, 330 F.3d 696, 701 (5th Cir. 2003) (quoting Hibernia Nat’l
Bank v. Perez, 954 F.2d 1026, 1027 (5th Cir. 1992)). Along this
line, a district court need only find by a preponderance of the
evidence that a defendant committed unadjudicated relevant conduct.
United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993); United
States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990). Moreover, the
district court is not limited to information that would be
admissible in a criminal trial. United States v. Vital, 68 F.3d
114, 120 (5th Cir. 1995).
In that regard, information in a PSR “generally bear[s]
indicia of reliability sufficient to permit reliance thereon at
sentencing”. United States v. Gracia, 983 F.2d 625, 629 (5th Cir.
6
1993). District courts have significant discretion in evaluating
a PSR’s reliability. United States v. Young, 981 F.2d 180, 185
(5th Cir. 1992), cert. denied, 508 U.S. 980 (1993). To challenge
the information contained in a PSR, the defendant “bears the burden
of demonstrating its untruth, inaccuracy, or unreliability”.
Gracia, 983 F.2d at 630. If a defendant fails to present evidence
to rebut the PSR’s findings, the district court may rely on the PSR
without further inquiry or discussion. Id. at 629-30; Vital, 68
F.3d at 120; Mir, 919 F.2d at 943. Unlike a PSR, the unsworn
assertions of defense counsel are not sufficiently reliable for the
district court to consider in making its factual findings. United
States v. Chavez, 947 F.2d 742, 746 (5th Cir. 1991).
In calculating the offense level, district courts are to
consider other, uncharged offenses if they constitute “relevant
conduct” related to the charged offense. U.S.S.G. § 1B1.3. Our
court applies this concept broadly, “[p]articularly in drug cases”.
Bryant, 991 F.2d at 177. Relevant conduct includes “acts and
omissions ... that were part of the same course of conduct or
common scheme or plan as the offense of conviction”. U.S.S.G. §
1B1.3(a)(2) (emphasis added); United States v. Sanders, 343 F.3d
511, 530 (5th Cir. 2003) (citing § 1B1.3(a)(2)).
The district court did not expressly find that Wroblewski’s
marijuana trafficking for Victor Estrada was part of a “common
scheme or plan”; however, this finding was implicit in the court’s
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conclusion that it constituted relevant conduct. See Vital, 68
F.3d at 118. Therefore, Wroblewski must show this finding was
clearly erroneous. Ocana, 204 F.3d at 589. (The Government claims
Wroblewski’s prior trafficking was both a “common scheme or plan”
and part of the “same course of conduct”; because they are in the
disjunctive, an affirmative finding on one basis obviates deciding
the other.)
For multiple offenses to comprise a “common scheme or plan”,
“they must be substantially connected to each other by at least one
common factor, such as common victims, common accomplices, common
purpose, or similar modus operandi”. U.S.S.G. § 1B1.3 cmt. n.9(A)
(emphasis added); Sanders, 343 F.3d at 530 (citing § 1B1.3 cmt.
n.9(A)). The common-victims factor is not in play; other factors
are discussed infra.
“Common accomplices” requires only that the alleged
accomplices know and work with one another at the time of the
earlier offense. See Wall, 180 F.3d at 645. For example, in Wall,
this factor was not satisfied when the alleged accomplices did not
know one another at the time of the earlier incident for which the
defendant was convicted; the later incident for which the
defendant’s alleged accomplice was convicted could not be
attributed to him. Id.The “common purpose” factor does not require that the purpose
be defined narrowly. It has been met, for example, with the common
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purpose of “the illegal removal and sale of timber” belonging to
others. United States v. Anderson, 174 F.3d 515, 527 (5th Cir.
1999).
A similar modus operandi exists where multiple offenses were
committed in a similar manner. The modus operandi in Anderson was
“removing timber from land belonging to absentee landowners who
would be less likely to discover the removal”. 174 F.3d at 527.
For this factor, other similarities may be suggestive of relevant
conduct. For example, the “source and type of drug” are relevant.
United States v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992) (noting
that all cocaine was purchased from the same individual; and that
the quantities the defendant sold were always measured in ounces);
see United States v. Moore, 927 F.2d 825, 827-28 (5th Cir, 1991)
(noting the defendant’s continuing enterprise involving
amphetamines).
Unlike a “same course of conduct” finding, no temporal
requirement exists for finding a “common scheme”. Moore, 927 F.2d
at 828. A period of one or two years’ inactivity is not a bar to
finding such a scheme. See id. (“There is no separate statute of
limitations beyond which relevant conduct suddenly becomes
irrelevant.”); United States v. Robins, 978 F.2d 881, 890 (5th Cir.
1992) (“[E]ven assuming this hiatus [of one and a half years]
occurred, it was inadequate in duration to make the previous
conduct irrelevant for sentencing purposes”.).
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As noted, only one common factor must exist for finding a
common scheme for Wroblewski’s drug trafficking. U.S.S.G. § 1B1.3
cmt. n.9(A). In this instance, however, it would not be clearly
erroneous to find that each of the above-described factors exist.
Concerning common accomplices, Wroblewski became acquainted in
1997 with both Victor and Sergio Estrada; Sergio Estrada provided
Wroblewski’s initial contact with the organization. Although no
evidence suggests Wroblewski met Ricardo Estrada prior to their
initial negotiations in 1999 or 2000, Wroblewksi can work for the
organization without a full awareness of its structure and the
roles of each Estrada brother. Cf. United States v. Westbrook, 119
F.3d 1176, 1189 (5th Cir. 1997) (explaining, in the context of a
conspiracy conviction, that a defendant “need not know all the
details of the unlawful enterprise ... so long as he knowingly
participates in some fashion in [its] larger objectives”), cert.
denied, 522 U.S. 1119 (1998).
For this factor, it appears that one, or both, of the other
Estrada brothers served as accomplices for Wroblewski’s work for
Ricardo Estrada. In 1997, Sergio Estrada acted as a conduit for
Wroblewski to begin working with Sergio Estrada’s brother, Victor
Estrada. Wroblewski’s initial contact from Ricardo Estrada
occurred shortly after he contacted Victor Estrada in 1999,
requesting resumption of the trafficking. It can be inferred from
this sequence of events that, when Wroblewski attempted to resume
10
working with Victor Estrada, he informed one or both of his
brothers of Wroblewksi’s interest, because Ricardo Estrada decided
to use Wroblewski’s services. Thus, Wroblewski’s activities shared
common accomplices; he worked for two brothers within the Estrada
family’s drug trafficking organization.
For a common purpose between Wroblewski’s trafficking for
Victor Estrada and for Ricardo Estrada, Wroblewski possessed for
each brother the criminal purpose of smuggling a large quantity of
marijuana from the border city of El Paso to large, interior United
States cities. Wroblewski’s activities for Victor and Ricardo
Estrada were not identical, but their common purpose withstands
clear-error review under this court’s precedent. See Anderson, 174
F.3d at 527.
Finally, regarding a similar modus operandi for Wroblewski’s
activities for the Estrada brothers, several similarities exist
between Wroblewski’s drug trafficking trips for them. The trips
originated in El Paso; Wroblewski drove and traveled alone; the
trips typically had similar mid-Western destinations; both brothers
paid Wroblewski thousands of dollars on a per-trip basis; each of
the trips involved the same controlled substance, marijuana; and
each trip involved large quantities (hundreds of pounds) of it.
Also key to the relevant-conduct finding’s not being clearly
erroneous is Wroblewski’s failure to offer any evidence rebutting
the PSR. Gracia, 983 F.2d at 629-30. For example, at sentencing,
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Wroblewski could have tried to contradict the existence of a modus
operandi by asserting that he used different modes of
transportation for the two brothers. See Wall, 180 F.3d at 645.
Because Wroblewski failed to make this, or any other, showing, the
district court’s reliance on the PSR was not erroneous. Vital, 68
F.3d at 120.
III.
For the foregoing reasons, the conviction is AFFIRMED; this
matter is REMANDED for resentencing.
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING
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