UNITED STATES V. SOTO-PIEDRA, Nos. 07-1399 & 07-1778

Rodrigo Soto-Piedra and Miguel Hernandez pleaded guilty to conspiracy to distribute cocaine. Neither stipulated to a precise drug quantity when pleading guilty, and each now challenges his sentence.

Soto contends that the district court exaggerated the drug quantity by relying almost exclusively on an informant's estimate that the probation officer repeated in the presentence report. Hernandez maintains that the court overstated his base offense level on the mistaken assumption that he was involved with crack rather than powder cocaine.

We reject Soto's contention but agree with Hernandez that his case must be remanded.

ANALYSIS

We review a finding of drug quantity for clear error. United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007). The government must prove drug quantity by a preponderance of the evidence, United States v. McGowan, 478 F.3d 800, 802 (7th Cir. 2007); United States v. White, 360 F.3d 718, 720 (7th Cir. 2004),and generally a district court may rely upon uncontradicted factual information in a the presentence report when assessing whether the government has satisfied that burden, see United States v. Thornton, 463 F.3d 693, 700-01 (7th Cir. 2006); United States v. Salinas, 365 F.3d 582, 587-88 (7th Cir. 2004); see also FED. R. CRIM. P. 32(i)(3)(A) (providing that sentencing court "may accept any undisputed portion of the presentence report as a finding of fact").

A. Soto-Piedra

Prior to Soto's sentencing the probation officer recommended that he be held accountable for 170 kilograms of cocaine based on (the USPO's) estimate that she obtained 5 to 7 kilograms from him each week from April to December 2004 at a price of $20,000 per kilogram.  Soto objected that the probation officer's calculation was not meaningfully corroborated. He contended that Ramirez's statement should be discounted because her role as an informant gave her incentive to embellish, and he also suggested through counsel that his own modest lifestyle refuted Ramirez's assertion that he was selling roughly half a million dollars of cocaine per month.

Soto challenges the drug quantity, but he introduced no evidence calling into question the accuracy of the presentence report. When a defendant fails to do so, a district court may rely entirely on the factual account in the report.  United States v. Willis, 300 F.3d 803, 807 (7th Cir. 2002); United States v. Taylor, 72 F.3d 533, 547 (7th Cir. 1995). The district court therefore did not commit clear error by relying on the probation officer's estimated cocaine quantity, and Soto's sentence must be affirmed.

B. Hernandez

Prior to Hernandez's sentencing the probation officer concluded that he was "responsible for between 15.996 to 16.996 kilograms of cocaine, of which the defendant had knowledge that 14 to 15 kilograms would be converted to crack cocaine at a 95% rate." This conclusion rests on the 1.996 kilograms of powder cocaine Hernandez had with him when he was arrested coupled with the word from unidentified "law enforcement officials" that Hernandez had agreed to sell Camarena 14 to 15 kilograms knowing that the powder would be converted into crack.

Hernandez objected to the probation officer's assignment of a base offense level on the assumption that he was involved with crack. The court overruled Hernandez's objection to the probation officer's drug calculation, adopted that conclusion as its own, and sentenced Hernandez to 250 months.

Hernandez's sentence must be vacated because there is a dearth of evidence supporting the district court's conclusion that he was responsible for 14 to 15 kilograms of crack.

The sentencing guidelines provide that relevant conduct, in the case of a jointly undertaken criminal activity, shall be determined on the basis of "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). Jointly undertaken criminal activity is defined as "a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others." Id.

As far as this record shows (and the govern- ment concedes), Hernandez never sold crack to anyone, and so before he could be assigned a base offense level premised on an estimated amount of crack, the government needed to prove that Hernandez reached an agreement with Camarena to sell powder cocaine intending that it be converted into crack. See United States v. Booker, 248 F.3d 683, 688 (7th Cir. 2001); United States v. Dorsey, 209 F.3d 965, 967 (7th Cir. 2000). That did not happen here.

As we noted earlier, a district court may rely upon unconstested factual details in a presentence report, but the say-so of some undisclosed "law enforcement official" that Hernandez understood that the powder he discussed on June 3 would be converted into crack is not a fact, but merely a conclusion. And that is all the presentence report provided in linking Hernandez to a substantial quantity of crack.

The government suggests that it was not required to demonstrate the existence of Hernandez's jointly undertaken criminal activity because he pleaded guilty to conspiracy. This proposition cannot be supported. In 1992 U.S.S.G. § 1B1.3 was amended specifically to disavow it. U.S.S.G. app. C, vol. I, amend. 439. Conspiracy liability, as defined in Pinkerton v. United States, 328 U.S. 640, 646-48 (1946), is generally much broader than jointly undertaken criminal activity under § 1B1.3. "Anyone who agrees to join a criminal undertaking is a conspirator," United States v. Almanza, 225 F.3d 845, 846 (7th Cir. 2000) but Hernandez is not trying to evade that label or undermine his guilty plea.

The scope of relevant conduct is "not necessarily the same as the scope of the entire conspiracy." U.S.S.G. § 1B1.3, cmt. n.2.  "[I]n order to be held accountable for the conduct of others, that conduct must have been both in furtherance of the jointly undertaken criminal activity and reasonably foreseeable in connection with that criminal activity." United States v. Edwards, 115 F.3d 1322, 1327 (7th Cir. 1997). Foreseeability is a limitation on liability for conduct of others in furtherance of a jointly undertaken activity but is irrelevant when there is no jointly undertaken activity. See McDuffy, 90 F.3d at 236; United States v. Dean, 59 F.3d 1479, 1495 (5th Cir. 1995); United States v. Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993).

Hernandez's guilty plea establishes only that he conspired to distribute powder cocaine, and we see nothing in the plea agreement or in his admissions during the plea colloquy evidencing that he specifically undertook to possess and distribute any amount of crack, much less 14 to 15 kilograms.  Mere talk about a possible future undertaking, without more, is not an undertaking itself. See United States v. Boniilla-Comacho, 121 F.3d 287, 291-92 (7th Cir. 1997). Hernandez is entitled to be resentenced.

Accordingly, Soto's sentence is AFFIRMED; we VACATE Hernandez's sentence and REMAND for resentencing.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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