United States v. Juan Roche

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10616 SEPTEMBER 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00005-CR-FTM-33-SPC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ROCHE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 14, 2006)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Juan Roche appeals his 73-month sentence, imposed after he pled guilty to
conspiracy to possess with intent to distribute more than 1000 marijuana plants, 21
U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(vii), and possession with intent to distribute
more than 1000 marijuana plants, 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii). On appeal,
Roche argues the district court clearly erred when it failed to make a particularized
finding as to the scope of his participation in the conspiracy and attributed to him
quantities of marijuana seized from a grow house located at 425 North Kennel
Street. Roche contends he only worked at a grow house located at 255 North
Zambria Street, and asserts that he did not join the conspiracy until after the
growing operation had begun at 425 North Kennel Street. We affirm.
The parties are familiar with the background facts, and we do not recount
them here. A district court’s determination of the drug quantity used to establish a
defendant’s base offense level is reviewed for clear error. United States v.
Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). “When . . . a defendant challenges
one of the factual bases of his sentence as set forth in the PSI, the government has
the burden of establishing the disputed fact by a preponderance of the evidence.”
United States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir. 1996).
The Guidelines state that a defendant’s base offense level shall include, “in
the case of a jointly undertaken criminal activity . . . , all reasonably foreseeable
2
acts and omissions of others in furtherance of the jointly undertaken criminal
activity.” U.S.S.G. § 1B1.3(a)(1)(B). If the case involves drugs, “the defendant is
accountable for all quantities of contraband with which he was directly involved
and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable
quantities of contraband that were within the scope of the criminal activity that he
jointly undertook.” U.S.S.G. § 1B1.3 cmt. n.2. A defendant may not, however,
“be held accountable for conduct that occurred prior to his entry into the joint
criminal undertaking.” United States v. Hunter, 323 F.3d 1314, 1320 (11th Cir.
2003). The district court must first make individualized findings concerning the
scope of criminal activity undertaken by the defendant, and then determine the
drug quantities reasonably foreseeable in connection with that level of
participation. United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993)
(citing U.S.S.G. § 1B1.3 cmt. n.2). “If the court does not make individualized
findings, the sentence may nevertheless be upheld if the record supports the
amount of drugs attributed to a defendant.” Id.
After carefully reviewing the record, the sentencing transcript, and the
parties’ briefs, we discern no reversible error. At sentencing, the district court did
not make an express finding as to the scope of Roche’s participation in the
conspiracy. It did, however, make an express finding that Roche was responsible
3
for at least 11,152 marijuana plants, and the record evidence amply supports that
finding. We accordingly hold the district court did not clearly err in calculating
Roche’s base offense level, and we affirm his 73-month sentence.
AFFIRMED.
4