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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 17-15610
Non-Argument Calendar
D.C. Docket No. 0:17-cr-60165-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY VALENCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(January 11, 2019)
Before ED CARNES, Chief Judge, MARCUS, and GRANT, Circuit Judges.
PER CURIAM:
Jeffrey Valencia appeals the 120-month sentence he received after pleading
guilty to one count of possession with intent to distribute heroin, in violation of 21
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U.S.C. § 841(a)(1) and (b)(1)(C).
I.
All of these facts, which we draw from Valencia’s presentence investigation
report, are undisputed. In February 2017 law enforcement officers began
investigating Valencia after receiving information that he was dealing heroin and
methamphetamine in Broward County, Florida. The next month the officers heard
that Valencia was storing a portion of his drug supply at the house of Jeffrey
Leibowitz, who owed Valencia a $20,000 drug debt. The officers searched the stash
house and found, among other things, 425 grams of Valencia’s methamphetamine.
Leibowitz was arrested and admitted that he had agreed to let Valencia “store large
amounts of . . . methamphetamine” at his house to pay off the debt that he owed
Valencia. Leibowitz also admitted that Valencia repeatedly directed buyers to the
stash house, where Leibowitz would sell them some of those drugs. Leibowitz
further stated that he had always known Valencia to sell drugs during the
approximately fifteen to twenty years that he had known Valencia.
The law enforcement officers continued investigating Valencia. In June 2017
they developed a confidential source who had previously bought multi-ounce
quantities of heroin from him. Later that month the officers set up three controlled
heroin buys by the source from the unwitting Valencia. The sting was successful:
the officers observed Valencia selling the source more than three ounces of heroin.
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Valencia pleaded guilty under a written plea agreement to one count of
possession with intent to distribute heroin. As part of the agreement Valencia
stipulated that Leibowitz was “operating a stash house for Valencia.” (A grand jury
indicted Leibowitz with possession with intent to distribute methamphetamine and
heroin.) Valencia also stipulated that he knowingly and intentionally sold heroin to
the government’s confidential source in June 2017.
In calculating Valencia’s base offense level, the presentence investigation
report used under § 1B1.3 of the United States Sentencing Guidelines the 425 grams
of methamphetamine that Valencia had kept at the stash house. 1 That
methamphetamine was determined to have a purity level of at least eighty percent, so
the PSR counted it as “ice” — the term the guidelines use for methamphetamine that
has a purity level of at least eighty percent. United States Sentencing Guidelines
§ 2D1.1, Notes to Drug Quantity Table, n.(C) (Nov. 2016). If that methamphetamine
had been less than eighty percent pure, Valencia’s base offense level would have
been 30. See
id. § 2D1.1(a)(5). But because the methamphetamine was ice,
Valencia’s base offense level was 32. See
id. § 2D1.1(a)(4).
After a three-level reduction for Valencia’s acceptance of responsibility, see
id. § 3E1.1, the PSR calculated a total offense level of 29 and a criminal history
1
The PSR also used, among other drugs, the heroin that Valencia was charged with
possessing. Those drugs are not at issue in this case.
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category of VI. That yielded an advisory guidelines range of 151 to 188 months.
The government moved for a downward departure because of Valencia’s assistance
in an unrelated case. See
id. § 5K1.1.
Valencia did not object to the PSR’s factfindings. He did object to, among
other things, the PSR counting the 425 grams of methamphetamine as ice in
calculating his base offense level. He argued that while he knew that the drugs were
methamphetamine, he did not know that they were pure enough to qualify as ice
under the guidelines. As he put it, it was unfair for him to be “held responsible for
the ICE WITH 81% [sic] or greater purity, without the Government having to prove
by competent evidence he knew or should have known the purity level.”
The district court overruled Valencia’s objection and counted the
methamphetamine as ice, which left Valencia’s advisory guidelines range at 151 to
188 months in prison.2 But the court granted the government’s motion for a
downward departure and sentenced Valencia to 120 months in prison. This is
Valencia’s appeal.
II.
We review the district court’s application of § 1B1.3 only for clear error.
2
The district court also found, over Valencia’s objection, that he was a career offender
under § 4B1.1(a) based on a 2010 federal conviction for attempt to possess with the intent to
distribute oxycodone and a 1999 Florida conviction for trafficking in cocaine. The court noted that
applying § 4B1.1(a) also led to a base offense level of 32. See § 4B1.1(b).
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United States v. Siegelman,
786 F.3d 1322, 1332 (11th Cir. 2015). Under that
section, a district court “shall” consider all “relevant conduct” when calculating a
defendant’s base offense level. U.S.S.G. § 1B1.3, (a). Relevant conduct includes
“all acts and omissions . . . that were part of the same course of conduct . . . as the
offense of conviction.”
Id. § 1B1.3(a)(2) (emphasis added). That means that “types
of drugs not specified in the count of conviction are to be included in determining the
offense level if they were part of the same course of conduct . . . as the count of
conviction.”
Id. § 1B1.3 cmt. Background.
Valencia’s position is based on his insistence that he “had no knowledge” the
methamphetamine had a purity level of at least eighty percent, qualifying it as ice.
But the fact that a defendant does “not know the type . . . of the drugs [does] not
preclude the district court from attributing the drugs to him [under § 1B1.3] for
sentencing purposes.” United States v. Alvarez-Coria,
447 F.3d 1340, 1344 (11th
Cir. 2006). “[T]hose who, acting with a deliberate anti-social purpose in mind,
become involved in illegal drug transactions, assume the risk that their actions will
subject them to enhanced criminal liability.” United States v. Gomez,
905 F.2d 1513,
1514–15 (11th Cir. 1990); see also
Alvarez-Coria, 447 F.3d at 1344 (“[A] defendant
who transports a suitcase knowing that it contains a controlled substance . . . is
accountable for the controlled substance in the suitcase regardless of his knowledge
or lack of knowledge of the actual type . . . of that controlled substance.”) (quoting
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U.S.S.G. § 1B1.3 cmt. n.2(A)(1) (Nov. 2004)).
Valencia’s knowledge of the purity level of the methamphetamine is
immaterial; it is enough that he knew that the methamphetamine was, in fact, a
controlled substance. See
Alvarez-Coria, 447 F.3d at 1344; cf. United States v.
Alvarado-Tizoc,
656 F.3d 740, 743 (7th Cir. 2011) (“[F]or sentencing purposes the
only knowledge required is knowledge that the substance that the defendants are
selling . . . is a controlled substance.”). So the district court did not err in counting
the 425 grams of methamphetamine as ice under § 1B1.3. 3
AFFIRMED.
3
We need not address Valencia’s contention that the district court erred in finding him a
career offender under § 4B1.1(a). In this case the application of either § 4B1.1(a) or § 1B1.3 leads
to the same base offense level (32) and the same advisory guidelines range (151 to 188 months in
prison). The district court properly applied § 1B1.3, so any error in applying § 4B1.1(a) would be
harmless. See Fed. R. Crim. P. 52(a); see also United States v. Keene,
470 F.3d 1347, 1348 (11th
Cir. 2006) (“The reason it is unnecessary for us to decide the enhancement issue is that a decision
either way will not affect the outcome of this case.”).
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