United States v. Marco Flores-Alvarado , 779 F.3d 250 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4464
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCO ANTONIO FLORES-ALVARADO, a/k/a Guero,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00089-BO-5)
Argued: December 11, 2014 Decided: March 3, 2015
Amended: March 11, 2015
Before TRAXLER, Chief Judge, and WYNN and HARRIS, Circuit
Judges.
Vacated and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Wynn and Judge Harris joined.
ARGUED: Wayne Buchanan Eads, Raleigh, North Carolina, for
Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
TRAXLER, Chief Judge:
Marco Antonio Flores-Alvarado pleaded guilty to conspiracy
to distribute and to possess with intent to distribute five
kilograms or more of cocaine and 1000 kilograms or more of
marijuana, see 21 U.S.C. §§ 841(a)(1), 846, and possession with
intent to distribute (“PWID”) more than 100 kilograms of
marijuana, see 21 U.S.C. § 841(a)(1). The district court
sentenced Flores-Alvarado to life imprisonment on the conspiracy
charge and a concurrent term of 480 months’ imprisonment on the
PWID charge. Flores-Alvarado appeals, raising several
challenges to his sentence. Because the district court failed
to make the required factual findings regarding the drug
quantity attributed to Flores-Alvarado, we vacate and remand for
re-sentencing.
I.
According to the information in the presentence report
(“PSR”), Flores-Alvarado and codefendant Enrique Mendoza-
Figueroa ran two related drug trafficking organizations in North
Carolina. Flores-Alvarado and Mendoza-Figueroa used multiple
sources in Mexico and the United States for their marijuana and
cocaine and “routinely bought and sold large amounts of drugs
from each other.” J.A. 107.
In calculating the advisory Guidelines range, the PSR
recommended that Flores-Alvarado be held accountable for at
2
least 3886.3 kilograms of marijuana and 136.125 kilograms of
cocaine, which converted to a total marijuana equivalent of
31,111.16 kilograms. Included in these quantities were drugs
seized from houses in Stokesdale, North Carolina (the
“Stokesdale Seizure”), and Lexington, Kentucky (the “Lexington
Seizure”). The PSR described those seizures as follows:
12. On April 25, 2011, agents determined that Flores-
Alvarado was involved in the distribution of a large
shipment of marijuana from Stokesdale, North Carolina,
to Shannon, North Carolina. Agents subsequently
seized 1,424 pounds (645.9 kilograms) of marijuana
from a residence in Stokesdale. Following this
seizure, Flores-Alvarado stopped using one of the
target telephone numbers which agents had used to
facilitate the seizure in this case. Additionally,
calls made to and from Flores-Alvarado connected [a
co-defendant] to this transaction.
. . .
17. On August 17, 2011, Flores-Alvarado traveled to
Lexington, Kentucky, to coordinate the distribution of
a multi-thousand-pound marijuana shipment from
Kentucky to North Carolina. Although the shipment was
canceled, agents with the DEA in Lexington were able
to identify a significant marijuana distribution cell
operating in that area. During the week of October 4,
2011, agents determined that Flores-Alvarado and [the
same co-defendant] were again coordinating the
delivery of a large shipment of marijuana from
Lexington to the Eastern District of North Carolina.
Agents established surveillance on locations
previously identified during the surveillance of
Flores-Alvarado in August of 2011. As a result,
agents in Lexington were able to seize 3,510 pounds
(1,592.1 kilograms) of marijuana and $1,835,021.40 in
drug proceeds. Seven members of the Lexington [drug-
trafficking organization] were also arrested.
J.A. 107-09 (footnote omitted).
3
Based on the 31,111.16 kilograms of marijuana attributed to
Flores-Alvarado, the PSR assigned him a base offense level of
38, see U.S.S.G. § 2D1.1(c)(1), and, after other adjustments, a
total offense level of 43. With that offense level and Flores-
Alvarado’s Category II criminal history, the advisory sentencing
range on both counts was life imprisonment. See U.S.S.G. ch. 5,
pt. A (sentencing table). However, because the statutory
maximum on the PWID count was 40 years’ imprisonment, see 21
U.S.C. § 841(b)(1)(B), the Guidelines range on that count became
480 months, see U.S.S.G. § 5G1.1(c)(1) (capping higher
Guidelines range at statutory maximum). If the drug quantities
involved in the Stokesdale Seizure and the Lexington Seizure are
excluded, Flores-Alvarado’s total offense level drops to 41,
with an advisory sentencing range of 360 months to life.
Counsel for Flores-Alvarado filed numerous objections to
drug quantities attributed to him, including the quantities from
the Stokesdale Seizure and the Lexington Seizure, and asserted
that Flores-Alvarado should be held accountable for no more than
the equivalent of 8169.32 kilograms of marijuana, a quantity
that would reduce his base offense level from 38 to 34. Counsel
also filed a sentencing memorandum in which he reiterated his
objections to the PSR and moved for a variance sentence of 10
years’ imprisonment.
4
Sentencing was conducted over the course of two hearings,
the first being continued midway through to allow for the
appearance of the prosecutor who tried the case and was thus
more familiar with the facts. At both sentencing hearings,
counsel argued that the quantities of marijuana attributed to
Flores-Alvarado from the Stokesdale and Lexington Seizures were
attempted purchases that, in accordance with U.S.S.G. § 2X1.1,
should be assigned lower offense levels than if the transactions
had been completed. Counsel also argued that Flores-Alvarado
could be held responsible for the amounts he was attempting to
purchase, but that he should not be held accountable for the
full quantities that were later seized. Counsel argued for a
downward variance and attempted to explain to the court that his
client had refused to cooperate because he feared retribution
against his family by the Mexican drug traffickers.
At the second hearing, the district court asked the then-
in-attendance prosecuting attorney to explain the drug
quantities attributed to Flores-Alvarado. As to the marijuana,
the prosecutor explained that the quantities attributed to
Flores-Alvarado included 3500 pounds of marijuana from the
Lexington Seizure, which she stated were attributed to Flores-
Alvarado through intercepted cell phone calls establishing that
he had arranged a purchase there, as well as 1424 pounds of
5
marijuana from the Stokesdale Seizure. 1 The government did not
call any witnesses or present any other evidence about the drug
quantities or the Stokesdale and Lexington Seizures.
Responding to Flores-Alvarado’s argument that the
Stokesdale and Lexington Seizures should be treated as mere
attempts, the government countered that Flores-Alvarado was
charged with conspiracy, a crime that was complete when the
conspiratorial agreement was reached, and that it was reasonably
foreseeable to Flores-Alvarado that the Stokesdale and Lexington
drug suppliers would have on hand quantities exceeding the
amount he attempted to purchase. In the government’s view,
Flores-Alvarado should not benefit from the fact that law
enforcement was able to seize the drugs before he purchased
them.
The district court agreed with the government’s view and
“f[ound] by a preponderance of the evidence” that Flores-
1
When summarizing the transactions involving cocaine, the
prosecutor included an incident involving the seizure of
$189,000 in cash during a traffic stop in Georgia. According to
the prosecutor, the cash was converted to 5.9 kilograms of
cocaine and attributed to Flores-Alvarado. The PSR, however,
attributed those quantities to Mendoza-Figueroa, not Flores-
Alvarado. Because we find the district court’s fact-finding to
be inadequate in another regard, we need not consider Flores-
Alvarado’s challenge to the district court’s apparent inclusion
of the $189,000 in the drug quantities attributed to Flores-
Alvarado. Should the issue arise on remand, Flores-Alvarado may
renew his objection.
6
Alvarado qualified for a base offense level of 38. J.A. 68.
After applying the other adjustments as provided in the PSR, the
court determined that Flores-Alvarado’s total offense level was
43 and that the Guidelines sentencing range was therefore life
imprisonment. After listening to Flores-Alvarado’s argument for
a variance sentence and the government’s response, the district
court announced its sentence, stating, “All right. On Count
One, I’ll impose a sentence of life and on Count Two a sentence
of 480 months concurrent.” J.A. 93.
Flores-Alvarado appeals, challenging his sentence on
several grounds. He argues that the district court failed to
make the necessary factual findings to support its drug-quantity
calculations; that the court’s determination of the quantities
attributable to Flores-Alvarado was clearly erroneous; that the
court failed to consider the relevant 18 U.S.C. § 3553(a)
sentencing factors or adequately explain the sentence; and that
the life sentence amounted to cruel and unusual punishment in
violation of the Eighth Amendment.
II.
We turn first to Flores-Alvarado’s related arguments
challenging the drug quantity attributed to him by the district
court and the sufficiency of the court’s factual findings on
that issue. We review the factual findings made by a sentencing
court for clear error. See United States v. Medina–Campo, 714
7
F.3d 232, 234 (4th Cir.), cert denied, 134 S. Ct. 280 (2013).
Accordingly, “[i]f the district court makes adequate findings as
to a controverted [sentencing] matter, this court must affirm
those findings unless they are clearly erroneous.” United
States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991). However,
the “review process cannot take place without the district court
first resolving all the disputed matters upon which it relies at
sentencing.” Id.Flores-Alvarado’s objections to the inclusion of the
Stokesdale and Lexington Seizures were not mere quibbles over
the PSR’s drug totals, but were specific and factually grounded
enough to raise legal and factual questions about whether the
events as described in the PSR supported attributing the seized
quantities to Flores-Alvarado. The district court was therefore
obligated to resolve the dispute. See Fed. R. Crim. P.
32(i)(3)(B) (requiring “for any disputed portion of the
presentence report or other controverted matter” that the
district court “rule on the dispute or determine that a ruling
is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in
sentencing”); United States v. Walker, 29 F.3d 908, 912 (4th
Cir. 1994) (finding “specific objections to the factual findings
underlying the PSR’s recommendation” sufficient to trigger
court’s Rule 32 obligations). As we will explain, the district
8
court did not resolve the disputed issue and did not make the
factual findings necessary to attribute to Flores-Alvarado the
quantities involved in the Stokesdale Seizure and the Lexington
Seizure.
The sentences imposed for drug offenses are driven by the
quantity of drugs involved. Under the Guidelines, the drug
quantities that may be attributed to the defendant include the
quantities associated with the defendant’s offense of conviction
and any relevant conduct. See United States v. Gilliam, 987
F.2d 1009, 1012-13 (4th Cir. 1993). Relevant conduct in
conspiracy cases includes “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). 2 As the
Guidelines point out, however,
the scope of the criminal activity jointly undertaken
by the defendant (the “jointly undertaken criminal
activity”) is not necessarily the same as the scope of
the entire conspiracy, and hence relevant conduct is
not necessarily the same for every participant. . . .
The conduct of others that was both in furtherance of,
and reasonably foreseeable in connection with, the
criminal activity jointly undertaken by the defendant
is relevant conduct under this provision. The conduct
of others that was not in furtherance of the criminal
activity jointly undertaken by the defendant, or was
2
We note that the Sentencing Commission has recently
proposed amendments to the § 1B1.3 Guideline and commentary so
as “to provide more guidance on the use of ‘jointly undertaken
criminal activity’ in determining relevant conduct.” Notice of
Proposed Amendments to Sentencing Guidelines, Policy Statements,
and Commentary, 80 Fed. Reg. 2570, 2570 (Jan. 16, 2015).
9
not reasonably foreseeable in connection with that
criminal activity, is not relevant conduct under this
provision.
U.S.S.G. § 1B1.3, cmt. n.2 (emphasis added); see also United
States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir. 2008)
(“Conspiracy liability, as defined in Pinkerton . . . , is
generally much broader than jointly undertaken criminal activity
under § 1B1.3.”).
“Accordingly, in order to attribute to a defendant for
sentencing purposes the acts of others in jointly-undertaken
criminal activity, those acts must have been within the scope of
the defendant’s agreement and must have been reasonably
foreseeable to the defendant.” Gilliam, 987 F.2d at 1012-13(emphasis added); see U.S.S.G. § 1B1.3, cmt. n.2 (“In order to
determine the defendant’s accountability for the conduct of
others under subsection (a)(1)(B), the court must first
determine the scope of the criminal activity the particular
defendant agreed to jointly undertake (i.e., the scope of the
specific conduct and objectives embraced by the defendant’s
agreement).”). And as to this issue, we require sentencing
courts to “make particularized findings with respect to both the
scope of the defendant’s agreement and the foreseeability of
[the conduct at issue].” United States v. Bolden, 325 F.3d 471,
499 (4th Cir. 2003) (second emphasis added; internal quotation
marks omitted).
10
In this case, the district court, by agreeing with the
government’s foreseeability argument, at least implicitly found
that the quantities involved in the Stokesdale and Lexington
Seizures were foreseeable to Flores-Alvarado. As discussed
above, however, foreseeability is not enough; the acts of others
may be attributed to a defendant only if those acts were
foreseeable to the defendant and were within the scope of the
defendant’s agreement to jointly undertake criminal activity.
See Bolden, 325 F.3d at 499; see also United States v.
Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993) (“If the defendant
has not joined the criminal activity, it does not matter that he
could have foreseen the criminal act. The reasonably
foreseeable standard applies only after it is shown that a
jointly undertaken activity has taken place.”). The district
court, however, made no findings, implicit or explicit,
addressing the critical factual question of the scope of the
criminal activity Flores-Alvarado agreed to jointly undertake.
We recognize that the district court adopted the PSR, which
can be a satisfactory means of resolving factual disputes. See,
e.g., Bolden, 325 F.3d at 497; Walker, 29 F.3d at 911. Adopting
the PSR does not satisfy the requirements of Rule 32(i)(3)(B),
however, if the factual recitations in the PSR do not support
the PSR’s recommendation. See United States v. Chandia, 514
F.3d 365, 376 (4th Cir. 2008) (remanding for resentencing where
11
district court adopted PSR’s recommended enhancement but PSR
“did not contain any factual assertions” to support application
of the enhancement); Bolden, 325 F.3d at 498 (remanding for
recalculation of loss amount where district court adopted PSR
but PSR “fail[ed] to support” a necessary factual finding); see
also United States v. Robinson, 744 F.3d 293, 300 n.5 (4th Cir.)
(explaining that “a probation officer’s calculation in a PSR
standing alone (that is, without the identification of
supporting evidence of any kind) does not constitute a finding
of fact on which a sentencing court can rely” (internal
quotation marks omitted)), cert. denied, 135 S. Ct. 225 (2014).
In this case, the factual recitations of the PSR are
insufficient to attribute the Stokesdale and Lexington Seizures
to Flores-Alvarado. See United States v. Hammond, 201 F.3d 346,
352 (5th Cir. 1999) (per curiam) (vacating sentence which
attributed to defendant losses incurred by third parties because
PSR adopted by the court did not contain the “absolute
prerequisite[]” factual finding as to the scope of the jointly
undertaken criminal activity (internal quotation marks
omitted)).
As to the Stokesdale Seizure, the PSR states that in April
2011, “Flores-Alvarado was involved in the distribution of a
large shipment of marijuana from Stokesdale, North Carolina, to
Shannon, North Carolina,” J.A. 107, and that agents
12
“subsequently seized 1,424 pounds . . . of marijuana from a
residence in Stokesdale,” J.A. 108 (emphasis added). Based on
these facts, the PSR and the district court attributed the full
amount of that seizure to Flores-Alvarado. For the amount of
drugs that the Stokesdale supplier later happened to have on-
hand to be attributable to Flores-Alvarado, there would need to
be some kind of evidence showing that Flores-Alvarado and the
Stokesdale supplier jointly agreed to operate together for
future drug deals. The mere fact that Flores-Alvarado once
bought marijuana from the Stokesdale supplier does not establish
the kind of relationship necessary to support the attribution.
See U.S.S.G. § 1B1.3, cmt. n.2(c)(4) (child pornography
possessed by wholesale distributor not attributable to dealer
who purchases from wholesaler “but otherwise operates
independently”). The bare-bones information in the PSR about
the Stokesdale Seizure does not even conclusively establish that
the drugs were seized from the same marijuana dealer that
Flores-Alvarado had been involved with, much less that the 1,400
pounds of marijuana were within the scope of the criminal
activity jointly undertaken by Flores-Alvarado. The PSR’s
reference to phone calls from Flores-Alvarado connecting a co-
defendant “to this transaction,” J.A. 108, provides a hint that
there might in fact be evidence establishing a sufficient
13
connection, but the facts actually spelled out in the PSR do not
establish that connection.
The facts recited in the PSR are likewise inadequate as to
the drug quantities involved in the Lexington Seizure. The PSR
states that Flores-Alvarado went to Kentucky in August 2011 to
coordinate a deal involving thousands of pounds of marijuana,
but that the deal fell through; that agents learned in October
2011 that Alvarado again was working on a deal for a large
shipment of marijuana from Lexington; and that agents placed
under surveillance locations identified during Flores-Alvarado’s
previous trip to Lexington and thereafter seized 3500 pounds of
marijuana. Unlike the allegations regarding the Stokesdale
Seizure, these allegations are perhaps sufficient to establish
that the drugs were seized from the same supplier that Alvarado
contacted in August. Nonetheless, for the reasons discussed
above, the facts of the Lexington Seizure as described in the
PSR do not establish that the marijuana possessed by the
supplier in October was within the scope of Flores-Alvarado’s
jointly undertaken criminal activity.
Because the PSR does not contain facts sufficient to show
that the quantities from the Stokesdale Seizure and Lexington
Seizure were within the scope of the criminal activity jointly
undertaken by Flores-Alvarado and the district court failed to
make any findings on this critical point, the factual findings
14
underlying the court’s drug quantity calculations are
“inadequate.” Bolden, 325 F.3d at 500. Consequently, we are
unable to review the issue and must remand for resentencing.
See id. at n.34; Morgan, 942 F.2d at 245 (“In the event the
district court fails to resolve a disputed factual matter on
which it necessarily relied at sentencing, this court must
vacate the sentence and remand for resentencing.”).
III.
For the reasons set out above, we hereby vacate Flores-
Alvarado’s sentence and remand for re-sentencing proceedings
consistent with this opinion. 3 On remand, the district court
3
Our conclusion that a remand for resentencing is required
makes it unnecessary to consider Flores-Alvarado’s arguments
that the district court failed to consider the relevant 18
U.S.C. § 3553(a) sentencing factors and failed to adequately
explain the sentence imposed. To the extent the other issues
raised by Flores-Alvarado may be relevant on remand, we briefly
address them.
Flores-Alvarado argues that the incidents underlying the
Stokesdale and Lexington Seizures were attempts to commit crimes
to which a lower offense level should apply. See U.S.S.G. §
2X1.1(b)(1) (where offense of conviction is “an attempt,” base
offense level is three levels lower than base offense level
under Guideline governing the completed substantive offense).
By its own terms, however, § 2X1.1 does not apply to attempts,
solicitations, or conspiracies that are “expressly covered by
another offense guideline section.” U.S.S.G. § 2X1.1(c)(1).
Because the Guideline governing drug offenses expressly covers
attempts and conspiracies, see U.S.S.G. § 2D1.1, § 2X1.1 is
therefore inapplicable to this case. See U.S.S.G. § 2X1.1, cmt.
n.1 (noting that § 2D1.1 expressly covers attempts).
(Continued)
15
must resolve the factual disputes surrounding the drug
quantities involved in the Stokesdale and Lexington Seizures and
must “make particularized findings” as to whether the challenged
quantities were within the scope of Flores-Alvarado’s agreement
to jointly undertake criminal activity and whether those drug
quantities were reasonably foreseeable to Flores-Alvarado.
Bolden, 325 F.3d at 499; see U.S.S.G. § 1B1.3, cmt. n.2. 4
VACATED AND REMANDED
We likewise reject Flores-Alvarado’s argument that the life
sentence imposed by the district court violated the Eighth
Amendment. Flores-Alvarado is a repeat drug felon involved in a
large-scale conspiracy who was, by his own admission, involved
in the distribution of thousands of pounds of marijuana. Under
the circumstances of this case, a sentence of life imprisonment
was constitutionally permissible. See United States v. Kratsas,
45 F.3d 63, 68 (4th Cir. 1995) (“[A] mandatory sentence of life
imprisonment without release, as applied to a repeat drug
offender, d[oes] not run afoul of the Eighth Amendment’s
prohibition against cruel and unusual punishment here.”).
4
We deny Flores-Alvarado’s request that the case be re-
assigned to a new judge on remand.
16