F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

FEB 3 1998

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
MARCEL A. HARDWELL,

No. 96-3394
(D.C. No. 93-CR-10071)
(D. Kan.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

In this appeal, defendant-appellant Marcel A. Hardwell appeals from his

resentencing following remand in an earlier decision of this court. See United States
v. Hardwell, 80 F.3d 1471 (10th Cir. 1996). On appeal, Marcel asserts that, upon
resentencing, the district court erred in including uncharged drug quantities as
relevant conduct in its calculation of his recommended sentencing range. We have
jurisdiction pursuant to 28 U.S.C. 1291, and we reverse and remand for further
proceedings.

I. BACKGROUND
The underlying facts of this case are set forth fully in Hardwell, 80 F.3d 1471,
and, except as necessary for an understanding of our decision, we need not reiterate
them here. In August 1993, Dennis Hardwell, Marcels cousin, was the target of a
reverse sting operation in which an undercover agent, posing as a drug courier from
California, attempted to set up the sale of two kilos of cocaine to Dennis for $15,000
a kilo. The sale was arranged to take place in a certain hotel room in Wichita,
Kansas, in which DEA agents had set up video surveillance. Marcel and codefendant
Frederick Bowens met the undercover agent in the hotel room, apparently to
negotiate the sale. After several hours, the undercover agent determined that the
defendants were not going to be able to produce all of the $30,000 needed for the

-2-

buy. She then decided to end the operation and gave an arrest signal to waiting
agents who subsequently arrested Dennis, Marcel, and five others.
Marcel, Dennis, and four other codefendants were convicted by a jury of
conspiracy to possess two kilograms of cocaine with intent to distribute. Marcel and
Dennis were also convicted of money laundering. Marcel was sentenced to 108
months imprisonment. The sentencing court, reasoning that defendants could not
be sentenced for conduct for which they were neither charged nor convicted, declined
to include certain other quantities of cocaine to which the defendants had been
allegedly linked as relevant conduct for purposes of enhancing the sentences.
Marcel, Dennis, and two codefendants appealed their convictions for
conspiracy to possess two kilograms of cocaine with intent to distribute. In addition,
Dennis and Marcel appealed their convictions for money laundering. 1 The
government cross appealed, contending that the district court erred in excluding
uncharged drug quantities from the base offense level. This court affirmed Marcels
conviction on the conspiracy to distribute charge, but remanded on the governments
cross-appeal for further fact finding on the issue of whether the uncharged drug
quantities should be considered relevant conduct for the purpose of calculating his
base offense level.
This court reversed the money laundering convictions of both defendants.
See Hardwell, 80 F.3d at 1484 (Marcel); United States v. Hardwell, 88 F.3d 897,
898 (10th Cir. 1996) (Dennis).

-3-

Following a resentencing hearing on remand, the district court determined that

under the sentencing guidelines the four and one-half kilos of cocaine seized in two
uncharged incidents should be considered relevant conduct for purposes of
determining Marcels relative base offense level. Marcel appeals this decision.

II. DISCUSSION
We review for clear error district court factual findings regarding drug
quantities and whether certain conduct is relevant conduct under the guidelines.
United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994). The government has
the burden of proving the quantity of drugs for sentencing by a preponderance of the
evidence. See id. The information upon which the district court relies must contain
sufficient indicia of reliability. United States v. Washington, 11 F.3d 1510, 1516
(10th Cir. 1993) (further quotation omitted).
When determining a sentencing range, the sentencing guidelines require that
a sentencing court include as relevant conduct all acts that were part of the same
course of conduct or common scheme or plan as the offense of conviction,
regardless of whether the defendant was convicted of the underlying offenses
pertaining to the additional amounts. United States v. Roederer, 11 F.3d 973, 97879 (10th Cir. 1993) (further quotation omitted). In determining whether certain
offenses are relevant conduct, the sentencing court is to consider such factors as
-4-

the nature of the defendants acts, his role, and the number and frequency of
repetitions of those acts, in determining whether they indicate a behavior pattern.
Id. at 979 (quoting United States v. Santiago, 906 F.2d 867, 872 (2d Cir. 1990)).
Similarity, regularity, and temporal proximity are the significant elements to be
evaluated. Id.
Whether acts are relevant conduct for a participant in a conspiracy is
determined by reference to all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the defendant; and
. . . all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity. U.S.S.G. 1B1.3(a)(1)(A), 1B1.3(a)(1)(B).
When making a relevant conduct determination in relation to a conspiracy,
[a] defendants relevant conduct does not include the conduct of
members of a conspiracy prior to the defendant joining the conspiracy,
even if the defendant knows of that conduct (e.g., in the case of a
defendant who joins an ongoing drug distribution conspiracy knowing
that it had been selling two kilograms of cocaine per week, the cocaine
sold prior to the defendant joining the conspiracy is not included as
relevant conduct in determining the defendants offense level).
Id. 1B1.3, Application Note 2.
In determining whether a quantity of drugs should be attributed to a member
of a conspiracy, the sentencing court must determine the defendants own relevant
conduct. See United States v. Torres, 53 F.3d 1129, 1143 (10th Cir. 1995). Relevant
conduct for purposes of sentencing is not necessarily the same for every participant
-5-

in a conspiracy. See id. at 1143-44; U.S.S.G. 1B1.3, Application Note 2. Thus,

the proper inquiry of the sentencing court focuses on three questions: (1) when the
defendant became a participant in the conspiracy; (2) whether the conduct being
considered as relevant conduct for sentencing purposes was conduct in furtherance
of the jointly undertaken criminal activity; and (3) whether that conduct was
reasonably foreseeable by the defendant. See United States v. Barragan, 915 F.2d
1174, 1179 (8th Cir. 1990); see, e.g., United States v. Roberts, 14 F.3d 502, 522
(10th Cir. 1993) (stating that for sentencing purposes, each conspirator is to be
attributed the quantity of drugs reasonably foreseeable or within the scope of the
conspiratorial agreement); United States v. Carreon, 11 F.3d 1225, 1231 n.17 (5th
Cir. 1994) (setting forth findings required on remand to determine drug quantity
attributable to a conspirator).
The four and one-half kilos of cocaine determined to be relevant conduct for
the purpose of calculating Marcels base offense level were seized during two
previous incidents. The first incident involved a traffic stop between Houston and
Dallas, Texas, in January 1993, wherein the Texas police seized two and one-half
kilos of cocaine from a van Dennis was driving. Passengers in the van included
Dennis half brother, Kenny Ray Wright, his brother-in-law, Brian Stallings, and a
man identified as Sean McDaniel.

The government contends that Dennis was

traveling from Marcels mothers home in Houston at the time of the arrest.
-6-

During the second incident in April 1993, DEA agents intercepted a drug
courier from Arizona carrying two kilograms of cocaine who claimed he was
delivering the cocaine to a person identified as James Kevin Hail. When Mr. Hail
was arrested in Wichita attempting to take possession of the vehicle containing the
cocaine, he agreed to cooperate with the DEA in a controlled delivery of the cocaine
to Dennis, who Mr. Hail claimed he had sold cocaine to in the past. The delivery
failed when, while recording a call from Mr. Hail to Dennis home, the line was
inadvertently left open after completion of the call, enabling a person or persons at
Dennis home to hear the DEA play back the recording. Pursuant to his own
admission, upon discovery that the telephone call was being recorded, Marcel went
to Mr. Hails hotel room and confronted him as to why he was attempting to set up
Dennis. At trial, Marcel testified that he went to Mr. Hails hotel room because he
was curious as to what was going on. See R. Vol. XI at 1290. We consider it worthy
of mention that, although Mr. Hail testified before the grand jury in this case, he did
not testify at Marcels trial or at either sentencing hearing.
The government argued at resentencing, that statements made by Marcel to the
undercover agent during the reverse sting operation prove Marcels involvement in
the prior incidents. According to the testimony of the undercover agent at trial,
during several hours of posturing and negotiations with the undercover agent, Marcel
bragged that they were all crew . . . doing a least a kilo a day, id. Vol. V at 181,
-7-

and although they had already lost four kilos of cocaine and $100,000, they were
still able to stay in business, id. at 246, 249. Marcel argued that this was puffing,
or bragging in order to impress the undercover agent.
The district court found that Dennis involvement in the incident in Texas in
January 1993, and in the failed controlled delivery in April 1993, could not be sheer
coincidence. Id. Vol. II at 36. The court then concluded that in light of what it had
read and heard, there was, in fact, an organization that was at work and they were
involved in trafficking, and that qualifies as relevant conduct. Id. at 36-37. The
court then found these same findings to be equally applicable to Marcel and
incorporated them into Marcels sentencing. See id. at 54.
In remanding, this court stated that Marcels own statements could meet [the
relevant conduct] requirement, and could support a finding that he was involved in
the two earlier incidents. Hardwell, 80 F.3d at 1499. We further opined that
Marcels statements regarding the loss of four kilos of cocaine, his offer to give up
a Houston source after his arrest, and his admission that he overheard the recorded
telephone conversation prompting his confrontation of James Hail following the
failed controlled delivery attempt to Dennis suggest[] and tend to show his
involvement in the April 1993 incident. Id. at 1499-1500. We then concluded that,
because the district court made no findings regarding Marcels involvement in the
two incidents, a remand for further fact finding was appropriate.
-8-

At the resentencing hearing, the district court heard testimony from William
Crawford, a narcotics detective with the Sedgwick County, Kansas Sheriffs
Department, and arguments from the government and counsel for both Dennis
Hardwell and Marcel. As to Dennis, the court stated:
I think that in this case the Tenth Circuit gave us a terrific amount of
direction in terms of what the Court should be looking for at
resentencing, and the Tenth Circuit indicated that the arrest in the van
in Texas could be relevant conduct. The Tenth Circuit determined that
the interception by the DEA of the drugs coming into Kansas could be
relevant conduct. I believe that the evidence here bears that out, and as
I stated earlier, I am making a finding that those two incidents are, in
fact, relevant conduct, and for purposes of sentencing, that six and a
half kilograms of cocaine is the appropriate amount to be used in
determining sentence.
R. Vol. II at 50.
In addressing counsels objections prior to actually resentencing Marcel, the
court stated:
Mr. Whitehead, I frankly tend to agree with you that the evidence is a
little thinner with respect to the January of 93 stop of the van down in
Texas as it relates to Marcel Hardwell, and I agree with you that its a
little thinner with respect to the April of 93 interception by the DEA
of the drugs coming into Kansas, but notwithstanding the
characterization that you have made that Mr. Hardwells simply
attempting to impress the seller on the videotape that we saw, its very
difficult for me to ignore the words that came out of his own mouth, for
whatever reason, in terms of the amount of business that their group had
been doing and over what period of time. Obviously in terms of
relevant conduct, when one is dealing with a group of people and family
or not, theres no question but what there were members of the family
present when illegal activity was taking place. I cant overlook that,
and I think that there is sufficient evidence for me to conclude and, in
fact, I think its more probable than not that Marcel Hardwell was
-9-

involved as part of an organization, and it was foreseeable those events

that took place in Texas in January of 93 and when the delivery was
intercepted in April of 1993, and I think we made enough of a record in
terms of findings that I am going to deny objection number one.
Id. at 71-72.
When resentencing Marcel, the court stated:
The findings I made with respect to the 6.5 kilograms of cocaine being
appropriate to use for purposes of sentencing in Dennis Hardwells case
are equally applicable and incorporated into the Courts comments in
the sentencing of Mr. Marcel Hardwell, and because Mr. Marcel
Hardwell has been present with counsel throughout the sentencing
proceedings this morning, the matters that we took up jointly, as well
as Mr. Dennis Hardwells sentencing, I dont feel compelled to run
through those same findings again, but simply incorporate them at this
time in my sentencing.
Id. at 54.
In United States v. Melton, No. 97-6028, 1997 WL 768381 (10th Cir. Dec. 15,
1997), the district court deemed $30 million worth of counterfeit Federal Reserve
notes produced in a reverse sting operation relevant conduct for sentencing purposes
even though the notes were printed after the defendant was arrested, and the
defendant took no part in the sting operation. In reversing for resentencing, this
court held:
The district court failed to make such particularized findings
and misapplied the sentencing guidelines by improperly assuming that
the scope of the criminal activity [the defendant] agreed to jointly
undertake was the same as the scope of the entire conspiracy, including
the reverse sting. We need not remand for further proceedings on the
scope of [the defendants] particular agreement, however, because the
facts underlying the determination are undisputed and do not carry the
- 10 -

governments burden of establishing [the defendants] accountability

for the activity that took place after he was arrested.
Id. at *4.
In this case, it is clear that the court failed to make individualized findings as
to Marcel. See United States v. Milledge, 109 F.3d 312, 316 (6th Cir. 1997) (holding
that under the sentencing guidelines, differentiation between coconspirators and
particularized sentencing are required) (further quotation omitted); United States
v. Meacham, 27 F.3d 214, 217 (6th Cir. 1994) (holding the district court erred in
holding all coconspirators accountable for all the drugs channeled through the
conspiracy without making individualized findings regarding each coconspirators
participation). It would at first appear that the government failed to meet its burden
of proving by a preponderance of the evidence Marcels accountability for the
uncharged drug amounts previously seized, and, therefore, pursuant to our holding
in Melton, 1997 WL 768381 at *4, this judgment could be reversed and the case
remanded for resentencing. We believe, however, that the district courts reasoning
in resentencing Marcel may have been predicated on its perception that our
comments in Hardwell, 80 F.3d at 1499-1500, constituted more definitive direction
on remand than was intended.
Our discussion in Hardwell of what may be considered relevant conduct was
not intended to usurp the district courts fact finding purview. See United States v.
Guzman, 864 F.2d 1512, 1521 (10th Cir. 1988) (It is not the function of the
- 11 -

appellate court to try the facts or substitute for the trial court in the determination of
factual issues.) (quoting Sabol v. Snyder, 524 F.2d 1009, 1011 (10th Cir. 1975)).
Therefore, we determine, Melton notwithstanding, that the appropriate course of
action is to remand to the district court for further findings of fact. In so doing, we
direct the sentencing court to make specific and individualized findings based upon
a careful inquiry into the nature of the incidents in question, and the extent of
Marcels involvement. See 1997 WL 768381 at *3 (sentencing court must first
determine the scope of the specific conduct and objectives embraced by the
defendants agreement) (quoting U.S.S.G. 1B1.3, Application Note 2); see also
Roberts, 14 F.3d at 522 (The drug amount attributable to a defendant for purposes
of sentencing is not established merely by looking to the amount of drugs involved
in the conspiracy as a whole, but to the quantity of drugs which he reasonably
foresaw or which fell within the scope of his particular agreement with the
conspirators.) (quoting United States v. Castaneda, 9 F.3d 761, 770 (9th Cir. 1993))
(further quotation omitted); Torres, 53 F.3d at 1144 (The touchstone under 1B1.3
is whether the quantities were reasonably foreseeable to the coconspirators in light
of the nature, extent, and purpose of the conspiracy). The court also should be
cognizant of the need for distinction between what Marcel may have known of the
activities of his coconspirators, and what he actually participated in or could have
reasonably foreseen as criminal conduct in furtherance of the conspiracy of which
- 12 -

he was a participant. See U.S.S.G. 1B1.3, Application Note 2 (relevant conduct

does not include offenses undertaken before defendant joined the conspiracy, even
if the defendant knows of that conduct).
In remanding this case, we make no judgment as to the correctness of Marcels
sentence, recognizing that after further inquiry and fact finding, his sentence may
very well stand. We only determine that without specific findings of fact as to
Marcels role in the incidents deemed relevant conduct, we are unable to adequately
review the sentencing courts determination. Therefore, the judgment of the United
States District Court for the District of Kansas is REVERSED, and the case is
REMANDED for further fact finding, and if appropriate, resentencing.

Entered for the Court

Michael R. Murphy
Circuit Judge

- 13 -