United States v. Jimenez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 14, 2003
_____________________
Charles R. Fulbruge III
No. 02-51298 Clerk
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN MIGUEL JIMENEZ,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No.: W-02-CR-113-2
_________________________________________________________________
Before JOLLY, JONES, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Juan Miguel Jimenez (“Jimenez”) appeals his sentence following
his guilty plea conviction for conspiracy to possess with intent to
distribute more than 50 kilograms of marijuana. We VACATE the
sentence and REMAND for resentencing.
I
Investigators learned that Richard Anthony Martinez
(“Martinez”), with the assistance of others, was distributing large
quantities of marijuana and cocaine. Based on a confidential
informant’s tip, investigators followed Joe Torres, Jr. (“Torres”)
*
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this opinion should not be published and is not precedent except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.
and John Allen Pena (“Pena”) to 1719 Clark Street in Waco, Texas,
where Torres and Pena briefly entered the residence and left.
Investigators pulled over their car and found 4.88 kilograms of
marijuana and 26.91 grams of cocaine. Torres informed the
investigators that he worked for Martinez, and that Martinez stored
marijuana and cocaine at 1719 Clark Street and at 3621 Trice
Street. During a search of 1719 Clark Street, investigators found
31.65 kilograms of marijuana, 273.1 grams of cocaine, drug scales,
drug ledgers, and packaging materials. During the search, officers
observed a white, four-door vehicle with a black hood and a black
trunk slowly pass by the house. According to the Presentence
Investigation Report (“PSR”), Jimenez rode in this car with
Martinez and Tony Oliverez past 1719 Clark Street. Martinez
remarked that the police were “getting his stuff,” before asking
Jiminez and Tony Oliverez to take him to 3621 Trice Street.
Officers observed four individuals arrive at 3621 Trice Street
in the same white car that was seen earlier driving past 1719 Clark
Street. Three males entered the house and left carrying trash
bags, which they loaded into the car. When police stopped the car,
they found Martinez, Jimenez, Tony Oliverez, and Anna Robles, as
well as 15.51 kilograms of marijuana in the trash bags. Jimenez,
who was unemployed, possessed $1,440 in cash.
Martinez told authorities that he had been selling marijuana
since high school and that Luis Sais had been his source. Martinez
received between 160 and 180 pounds of marijuana from Sais every
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four to six days for eighteen months. He received about four
deliveries of cocaine from Sais totaling five kilograms over about
six months.
Robles told investigators that Torres, Frank and Tony
Oliverez, Guillermo Perez, Pena, and Philip Soto distributed
marijuana and cocaine for Martinez. She said that Jimenez knew
that Martinez distributed illegal drugs, but that Jimenez worked
for Oliverez, and not for Martinez. She stated that Martinez was
not Oliverez’s source for marijuana.
Martinez initially told investigators that Jimenez did not
know what was going on at Trice Street and that Martinez wanted to
take the blame for everything. After first telling authorities
that Jimenez did not “have anything to do with the marijuana,” and
that Jimenez did not know what was going on, Martinez later stated
that over a period of approximately twelve to eighteen months he
“on occasion” had given Jimenez “from ounces to under a pound” of
marijuana. The PSR states that Martinez informed the case agent
that Jimenez was among the people who worked for him in the
marijuana and cocaine distribution business.
Jimenez had been arrested two months earlier by state police
for engaging in organized crime, delivery of marijuana. When
police found Jimenez and four other individuals in a stalled car,
Jimenez and two other individuals approached the officer while two
others walked down a ditch and across a field. Although eight to
ten small baggies of marijuana, scales, a firearm, and ammunition
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were found in the ditch, charges were not filed against Jimenez
because of insufficient evidence. Jimenez was also arrested one
month later by state police for possession of marijuana under two
ounces.
Jimenez told the probation officer that on the night of his
arrest, Martinez asked Tony Oliverez to take Martinez and Robles
somewhere, but did not say where he needed to go or why. He stated
that Martinez instructed him and Oliverez to carry trash bags from
3621 Trice Street to the car without telling them what was inside
the bags. Jimenez conceded that he smelled marijuana, but stated
that he thought it was because he had been smoking marijuana
earlier that day. Notwithstanding his guilty plea, Jimenez told
the probation officer that, prior to June 14, he had never done
anything for Martinez or any of the other co-defendants involving
marijuana and that he possessed marijuana only for his own personal
use.
The PSR recommended that Jimenez be held responsible, not only
for the 15.51 kilograms of marijuana found in the car when he was
arrested, but also for the 31.65 kilograms of marijuana and 273.1
grams of cocaine recovered from 1719 Clark Street. With a total of
47.16 kilograms of marijuana and a marijuana equivalent of 54.62
kilograms for the cocaine, Jiminez was responsible for 101.78
kilograms of marijuana. The base offense level for at least 100
kilograms but less than 400 kilograms of marijuana is 26. With a
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total offense level of 26 and a criminal history category of I, the
Guidelines range was 63 to 78 months.
Jimenez objected to being held accountable for the cocaine and
the marijuana at 1719 Clark Street, as Martinez gave varying
accounts of Jiminez’s involvement and Jimenez alleged that he
agreed only to retrieve marijuana from 3621 Trice Street. Jimenez
did not present any evidence at the sentencing hearing. Under
cross-examination, the Government’s witness, McLennan County Deputy
Sheriff Evans, conceded that Martinez made conflicting statements
regarding Jimenez’s level of involvement in the conspiracy and that
Martinez had said that he gave Jimenez only relatively small
amounts of marijuana on occasion. Evans also conceded that the
investigators previously had not been aware of Jimenez’s
involvement in the criminal activity and did not include any
information about him in the affidavit or the search warrant.
Jimenez argued that there was no indication of his involvement
in cocaine distribution and that the cocaine should not be
considered in determining his sentence. He argued that the cocaine
and the marijuana at 1719 Clark Street were not part of jointly-
conducted activity in which he agreed to participate and were not
reasonably foreseeable to him, where he merely drove Martinez by
the house and heard him say “they got my stuff.”
The district court stated:
I think the evidence is clear that Mr.
Jimenez was well aware of the scope of the
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enterprise for various reasons, driving by the
first house, statements made by Mr. Martinez.
The Court would find that the appropriate
relevant conduct is that as determined by the
probation office and adopts those findings of
the probation office in the report.
The district court sentenced Jimenez to 63 months imprisonment.
Jimenez filed a timely notice of appeal.
II
Jimenez argues that the jointly undertaken criminal activity
was solely the retrieval of the marijuana from 3621 Trice Street
and that there was no agreement as to the drugs at 1719 Clark
Street. Pursuant to U.S.S.G. § 1B1.3, Jimenez argues that he
should have been accountable only for the marijuana retrieved from
3621 Trice Street. He contends that there was no evidence that he
agreed to distribute cocaine. He maintains that the district court
erred by focusing solely on the foreseeability of the Clark Street
drugs without first considering whether the drugs at Clark Street
were part of an agreement to engage in jointly undertaken criminal
activity. He concedes that foreseeability is not at issue on
appeal.
Jiminez likens his situation to several examples in the
Guidelines, including the following:
Defendant R recruits Defendant S to distribute
500 grams of cocaine. Defendant S knows that
Defendant R is the prime figure in a
conspiracy involved in importing much larger
quantities of cocaine. As long as Defendant
S’s agreement and conduct is limited to the
distribution of the 500 grams, Defendant S is
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accountable only for that 500 gram amount
(under subsection (a)(1)(A)), rather than the
much larger quantity imported by Defendant R.
U.S.S.G. § 1B1.3, comment. n.2(c)(7).
We review the district court’s application and interpretation
of the Guidelines de novo and its factual findings for clear error.
United States v. Hammond, 201 F.3d 346, 350 (5th Cir. 1999). “A
factual finding is not clearly erroneous if it is plausible in
light of the record read as a whole.” United States v. Puig-
Infante, 19 F.3d 929, 942 (5th Cir. 1994).
“Types and quantities of drugs not specified in the count of
conviction may be considered in determining the offense level.”
U.S.S.G. § 2D1.1 comment. (n.12) (2001). Where the Guidelines
provide for more than one base offense level, the base offense
level is determined based upon all reasonably foreseeable acts of
others in furtherance of the conspiracy. Id., § 1B1.3(a)(1)(B).
Jimenez is accountable for the conduct of others that was both:
“(i) in furtherance of the jointly undertaken criminal activity;
and (ii) reasonably foreseeable in connection with that criminal
activity.” Id., § 1B1.3, comment (n.2).
The sentencing court “must first determine the scope of the
criminal activity the particular defendant agreed to jointly
undertake.” Id. “In determining the scope of the criminal
activity that the particular defendant agreed to jointly undertake
(i.e., the scope of the specific conduct and objectives embraced by
the defendant’s agreement), the court may consider any explicit
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agreement or implicit agreement fairly inferred from the conduct of
the defendant and others.” Id. If the conduct of others is not
within the scope of the defendant’s agreement, the conduct should
not be included in calculating the defendant’s offense level.
United States v. Evbuomwan, 992 F.2d 70, 73 (5th Cir. 1983).
The district court must make specific findings regarding all
contested facts contained in the PSR that are relevant to
sentencing. FED. R. CRIM. P. 32(i)(3). The district court can
satisfy this requirement by adopting the PSR “when the findings in
the PSR are so clear that the reviewing court is not left to second
guess the basis for the sentencing decision.” Puig-Infante, 19
F.3d at 943 (internal quotation marks and citations omitted).
Where a defendant objects to a particular finding in the PSR, the
sentencing court must resolve the disputed factual issues by making
specific findings, supported by a preponderance of the evidence.
United States v. Smith, 13 F.3d 860, 867 (5th Cir. 1994). However,
if the facts in the PSR have an adequate evidentiary basis and the
defendant does not present rebuttal evidence the district court can
adopt the facts in the PSR without inquiry.
Jimenez’s contention that he should be held accountable for
only the 15.51 kilograms of marijuana removed from 3621 Trice
Street goes too far in the light of his guilty plea to conspiracy
to possess with intent to distribute more than 50 kilograms of
marijuana. Nonetheless, Jimenez’s assertion that the district
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court failed to make the requisite finding that his agreement
extended to the distribution of cocaine has merit.
Jimenez specifically objected to paragraph 27 of the PSR,
which states that Martinez informed the case agent that Jimenez
worked for him “in the marijuana and cocaine distribution
business.” In his objection, Jimenez argued that “there is
absolutely no basis for holding him accountable for the cocaine”
and that he “was not involved in any way in the distribution of
cocaine, nor was he even aware that Martinez was involved in the
distribution of cocaine.” The probation officer’s response to this
objection, in the Addendum to the PSR, does not directly address
Jimenez’s contentions regarding his lack of involvement in
Martinez’s cocaine distribution business. The Addendum states
merely that Jimenez should be held accountable for the marijuana
and cocaine seized from 1719 Clark Street based on the following:
(1) Jimenez was observed assisting Martinez in the attempt to keep
police from confiscating the marijuana that Martinez had stored at
3621 Trice Street; (2) in his debriefing statement, Martinez
indicated that Jimenez was working for him in the distribution of
illegal drugs; (3) Jimenez had $1440 in cash when he was arrested;
and (4) Jimenez had been arrested twice for marijuana offenses.
At the sentencing hearing, Jimenez reiterated his objection,
arguing that there is “no indication that Mr. Jimenez was involved
in any way with distributing, selling, possessing cocaine,” and
that the cocaine could not be considered in calculating his
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sentence because it was not part of any jointly undertaken
activity. The district court overruled the objection, and adopted
the factual findings of the PSR, stating: “I think the evidence is
clear that Mr. Jimenez was well aware of the scope of the
enterprise for various reasons, driving by the first house,
statements made by Mr. Martinez.” The district court did not make
any specific finding regarding whether cocaine distribution was
part of the jointly undertaken criminal activity.
Ordinarily, the district court’s adoption of the PSR’s
findings would satisfy the requirement that it make specific
findings as to all contested facts. See Puig-Infante, 19 F.3d at
943. This court, however, in an analogous case, has found that the
district court erred in failing to make a particularized finding of
an agreement to participate in a criminal scheme. Hammond, 201
F.3d at 351-52.
In Hammond, the probation office recommended that the
guideline range be determined based upon the total loss resulting
from an embezzling scheme, including losses caused by Hammond as
well as two other individuals. Id. at 351. Hammond objected on
the same grounds as Jimenez -- that the losses caused by others
should not be attributed to him absent proof of an agreement
between Hammond and the others to engage in the fraud. Id. The
district court adopted the PSR, reasoning that Hammond should have
reasonably foreseen the other individuals’ misconduct without
making a finding that Hammond agreed to participate in the scheme
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with them. Id. at 352. The sentence was vacated and the case was
remanded to the district court for resentencing.
The only evidence of the existence of an agreement between
Jimenez and Martinez to distribute cocaine is paragraph 27 of the
PSR, which states that Martinez informed the case agent that
Jimenez, among others, worked for him in the marijuana and cocaine
distribution business. The district court may have inferred from
this general statement the existence of an agreement between
Jimenez and Martinez to distribute both cocaine and marijuana. If
it did so, the district court’s implicit finding would be based
upon the PSR’s implicit finding that Jiminez agreed to participate
in the distribution of cocaine, which is an impermissible inference
based upon an inference. See Evbuomwan, 992 F.2d at 74.
Moreover, the general statement in paragraph 27 of the PSR is
supported by neither more specific information in the PSR nor
sentencing testimony concerning the scope of Jimenez’s activities.
Paragraph 28 of the PSR indicates that Martinez identified Jimenez
as one of the persons who assisted him with the distribution of
marijuana, but omits a specific reference as to cocaine. The
testimony at the sentencing hearing indicated that Jimenez received
small amounts of marijuana from Martinez “on occasion” for a period
of twelve to eighteen months, but does not mention cocaine. The
fact that Jimenez rode by 1719 Clark Street with Martinez and heard
Martinez say that the police were “getting my stuff” does not show
an agreement to distribute cocaine.
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III
Because the record reflects no explicit finding regarding
whether the distribution of cocaine was within the scope of the
criminal activity that Jimenez agreed to undertake, we VACATE
Jimenez’s sentence, and REMAND the case to the district court for
resentencing.
VACATED and REMANDED.
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