Unpublished
Uploaded by
Scribd Government DocsUnpublished
Uploaded by
Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4552
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
JAIME CONEJO,
Defendant Appellant.
Appeal from the United States District Court for the Western
District
of
North
Carolina,
at
Charlotte.
Robert
J.
Conrad, Jr., Chief District Judge. (3:07-cr-00092-RJC-4)
Submitted:
May 27, 2009
Decided:
June 29, 2009
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jaime Conejo pled guilty without a plea agreement to
conspiracy to possess with intent to distribute five kilograms
or more of cocaine, 21 U.S.C.A. 846, 841(b)(1)(A) (West 1999
& Supp. 2008) (Count 1), and possession of five kilograms of
cocaine
with
intent
to
distribute,
21
U.S.C.A.
(b)(1)(A) (West 1999 & Supp. 2008) (Count 2).
841(a),
The district
court imposed concurrent sentences of ten years imprisonment on
each count.
Conejo appeals, contending that the district court
erred in finding a sufficient factual basis for his guilty plea.
The government concedes error as to Count Two, but maintains
that an adequate factual basis existed for Count One.
We affirn
the judgment on Count One, but vacate the judgment on Count Two
and remand for resentencing.
Conejo
and
three
co-defendants
agreed
to
sell
five
kilograms of cocaine to a confidential informant who was under
surveillance
by
federal
Charlotte, North Carolina.
drug
agents
and
local
police
in
Conejo transported five bricks of
cocaine to a garage where he met the informant with another
conspirator and showed the informant one brick of cocaine, which
the informant sampled.
The informant then accompanied Conejo to
his vehicle to see the other four bricks of cocaine.
After he
saw the cocaine, the informant gave the signal for Conejo and
his co-defendants to be arrested.
2
Conejo was charged with the
federal
offenses
cocaine
with
of
conspiracy
intent
to
to
possess
distribute
and
five
kilograms
possession
kilograms of cocaine with intent to distribute.
of
of
five
At Conejos
guilty plea hearing, presentation of the factual basis for the
plea
was
deferred
until
sentencing.
Subsequently,
the
laboratory report on the seized cocaine disclosed that the total
net weight of the cocaine was 4.99 kilograms.
Conejos
63-78
months.
recommended
Based
on
the
advisory
lab
guideline
report,
range
Conejo
refused
was
to
stipulate that he should be held responsible for five kilograms
of cocaine.
However, the district court found that Conejo was
liable for five kilograms because the defendants had negotiated
to sell that amount and had delivered five bricks of cocaine,
each purportedly weighing one kilogram.
The court consequently
imposed a sentence of 120 months for each count, the statutory
minimum sentence under 841(b)(1)(A) for an offense involving
five
kilograms
of
cocaine,
stating
that
[i]t
is
sentence
required by law, the court has no discretion in imposing it.
On appeal, Conejo contends that the factual basis was inadequate
to establish that he committed an aggravated drug trafficking
offense
involving
five
kilograms
of
cocaine,
thus
punishable
under 841(b)(1)(A), for either count because he did not admit
his
personal
involvement
with
five
kilograms
of
cocaine
and
because the district court gave insufficient consideration to
the lab report.
Prior
to
entering
judgment
on
guilty
plea,
the
[district] court must determine that there is a factual basis
for the plea.
Fed. R. Crim. P. 11(b)(3).
It is well settled
that a defendant may raise on direct appeal the failure of a
district court to develop on the record a factual basis for a
plea . . . .
United States v. Mitchell, 104 F.3d 649, 652 n.2
(4th Cir. 1997).
A district courts finding of a factual basis
for a guilty plea is reviewed for abuse of discretion.
States v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002).
no
abuse
so
long
as
the
district
court
could
determine that there was a sufficient factual basis.
United
There is
reasonably
Id.
To prove conspiracy to possess cocaine with intent to
distribute, the Government must establish:
(1) an agreement to
possess cocaine with intent to distribute existed between two or
more persons; (2) the defendant knew of this conspiracy; and (3)
the defendant knowingly and voluntarily became a part of this
conspiracy.
United States v. Wilson, 135 F.3d 291, 306 (4th
Cir. 1998).
Here, Conejo did not dispute the fact that the
object
of
the
conspiracy
was
sale
of
five
kilograms
of
cocaine.
Under
conspiracies
are
21
U.S.C.
set
out
846,
in
4
the
841(b),
sentences
which
for
drug
creates
three-part
graduated
offenses,
premised
involved.
penalty
on
United
the
States
scheme
type
v.
and
for
drug
quantity
distribution
Brooks,
524
of
the
F.3d
(4th Cir.), cert. denied, 129 S. Ct. 519 (2008).
drugs
549,
557
We held in
Brooks that specific threshold drug quantities must be treated
as elements of aggravated drug trafficking offenses, rather than
as
mere
sentencing
factors.
(quoting
Id.
Promise, 255 F.3d 150, 156 (4th Cir. 2001)).
threshold
drug
quantity
generally
must
United
v.
Thus, the specific
be
proved
beyond
Brooks, 524 F.3d
reasonable doubt or admitted by the defendant.
at 556-57.
States
The specific threshold quantity of cocaine required
for a sentence under 841(b)(1)(A) is five kilograms.
However,
for
conspiracy
offense,
the
defendants
agreement to commit a crime involving a specific amount is the
essential element that must be proved to trigger a statutorily
enhanced
sentence,
actually completed.
not
whether
the
agreed-upon
conduct
was
See United States v. Dixon, 449 F.3d 194,
202 (1st Cir. 2006) (factual impossibility is not a defense to
either
liability
offenses
such
as
or
sentencing
conspiracy
or
enhancements
attempt);
for
United
inchoate
States
Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (attempt).
v.
However,
for the statutory minimums of 841(b) to apply, the particular
threshold
defendant.
drug
amount
must
be
reasonably
Brooks, 524 F.3d at 558.
5
foreseeable
to
the
Here, we are satisfied
that
the
district
court
did
not
err
in
finding
that
Conejo
agreed to distribute five kilograms of cocaine and that it was
reasonably foreseeable to him that the five bricks weighed five
kilograms, even though they actually weighed slightly less.
For
guideline
purposes,
Conejo
was
Manual
2D1.1,
comment.
for
See U.S. Sentencing
five kilograms of cocaine on Count One.
Guidelines
responsible
(n.12)
(when
offense
involves agreement to sell drugs, agreed-upon quantity is used
to
determine
offense
level
unless
accurately reflects scale of offense).
amount
delivered
more
Therefore, the probation
officer correctly calculated the advisory guideline range at 6378 months.
However, because Conejo was subject to a mandatory
minimum sentence of ten years, the guideline range increased to
120 months.
USSG 5G1.1(b) (2006).
For
five
Count
kilograms
of
Two,
which
cocaine
charged
with
that
intent
Conejo
to
possessed
distribute,
the
government concedes that the specific threshold drug quantity
needed
to
trigger
present, and we agree.
subsection
of
sentence
under
841(b)(1)(A)
was
not
Thus, for Count Two, the default penalty
841(b)(1)(C)
applied,
statutory maximum of twenty years.
which
sets
only
Brooks, 524 F.3d at 561.
We therefore affirm the judgment on Count One, but
vacate the judgment on Count Two and remand for resentencing on
that count.
We dispense with oral argument because the facts
6
and legal contentions are adequately presented in the materials
before
the
court
and
argument
would
not
aid
the
decisional
process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
