Criminal Practice — Particular Findings Needed on Drug Quantity

U.S. v. Flores-Alvarado (Lawyers Weekly No. 15-01-0208, 16 pp.) (Traxler, J.) No. 13-4464, March 3, 2015; USDC at Wilmington, N.C. (Boyle, J.) 4^th Cir.

Holding: Although a sentencing court accepted a presentence report that attributed to defendant in this large-scale drug conspiracy quantities of cocaine and marijuana seized from houses in North Carolina and Kentucky, the PSR’s factual recitations did not support its conclusions, and the 4^th Circuit vacates defendant’s sentence and remands for particularized findings on whether defendant’s acts were within the scope of his agreement to criminal activity, and were reasonably foreseeable.

In calculating the advisory guidelines range, the presentence report recommended that appellant be held accountable for at least 3,886.3 kilograms of marijuana and 136.125 kilograms of cocaine, which converted to a total marijuana equivalent of 31,111.16 kilograms. Included in this quantities were drugs seized from houses in Stokesdale, N.C., and Lexington, Ky.

Appellant’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 appellant. The district court was therefore obligated to resolve the dispute. It did not resolve the disputed issue and did not make the factual findings necessary to attribute to appellant the quantities involved in the Stokesdale Seizure and the Lexington Seizure.

In order to attribute to a defendant for sentencing purposes the acts of others in jointly-undertaken criminal activity, a defendant’s acts must have been within the scope of the defendant’s agreement and must have been reasonably foreseeable to defendant. 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.

In this case, the district court, by agreeing with the government’s foreseeability argument, at least implicitly found that the quantities involved in the two Seizures were foreseeable to appellant. 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. The district court, however, made no findings, implicit or explicit, addressing the critical factual question of the scope of the criminal activity appellant agreed to jointly undertake.

We recognize the district court adopted the PSR, which can be a satisfactory means of resolving factual disputes. 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.

Because the PSR does not contain facts sufficient to show that the quantities from the Stokesdale Seizure and the Lexington Seizure were within the scope of the criminal activity jointly undertaken by appellant and the district court failed to make any findings on this critical point, the factual findings underlying the court’s drug quantity calculations are inadequate. Consequently, we are unable to review the issue and must remand for resentencing.

We hereby vacate appellant’s’ sentence and remand for resentencing proceedings consistent with this opinion.

Vacated and remanded.