U.S. v. Strange

• Decision Date: 13 December 1996
• Docket Number: Nos. 96-1244,96-1634,s. 96-1244
• Citation: 102 F.3d 356
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Richard H. STRANGE, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Charles A. ZAMORANO, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 356

102 F.3d 356

UNITED STATES of America, Plaintiff--Appellee, v. Richard H. STRANGE, Defendant--Appellant.

UNITED STATES of America, Plaintiff--Appellee, v. Charles A. ZAMORANO, Defendant--Appellant.

Nos. 96-1244, 96-1634.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 10, 1996.

Decided Dec. 13, 1996.

Max D. Goracke, Kansas City, MO, for appellant Richard Strange.

Jacqueline A. Cook, Kansas City, MO, for appellant Charles A. Zamorano.

William L. Meiners, Asst. U.S. Attorney, Kansas City, MO, for U.S.

Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Richard Strange and Charles Zamorano pleaded guilty to violating 21 U.S.C. §§ 841(a)(1), 846 (1994), by conspiring to distribute and possess with intent to distribute controlled substances. Strange and Zamorano appeal the sentences imposed by the district court, ¹ and we affirm.

I. BACKGROUND

In February of 1993, Strange, a drug dealer, told his friend and customer Robert Scott that he had located a connection for guaranteed quantities of marijuana, and in subsequent conversations Strange disclosed that Zamorano was his supplier. A few months later, Strange inquired whether Scott would be willing to accept delivery of a package from El Paso, Texas containing marijuana. In exchange, Strange agreed to forgive Scott's $50 outstanding balance and to give Scott a discount on future narcotics purchases. Scott consented to this arrangement, and during the first week of July in 1993 a shipment of approximately five pounds of marijuana arrived at his home. Scott received a second parcel from El Paso, also consisting of about five pounds of marijuana, in the middle of that month. On both occasions, Strange promptly travelled to Scott's house and retrieved the contraband.

In late July of 1993, members of the El Paso Airport Drug Task Force, acting in response to a call from an employee of the United Parcel Service, intercepted a package addressed to Scott's Kansas City residence. The officers located inside the carton 239.5 grams of cocaine hidden within a pair of cowboy boots. On August 2, 1993, after conducting a controlled delivery of the box to its intended destination, federal agents arrested Scott. Scott agreed to cooperate with law enforcement personnel, and he provided information indicating that Zamorano transferred drugs to him from El Paso; Scott further divulged that Strange was responsible for taking possession of the narcotics and wiring the illicit proceeds back to Zamorano. In fact, an investigation revealed that various wire transfers were made to Zamorano from a man in Kansas City using the name "Bob Scott." A handwriting expert concluded that Strange was the person who had signed as "Bob Scott" to authorize the transfers, and documents on file at Western Union positively identify Zamorano as the individual who collected the wired funds in Texas. In total, approximately $14,410 passed from Kansas City to El Paso during the relatively short life of the machination.

On June 26, 1995, a federal grand jury issued a four count indictment against Strange and Zamorano. Both men pleaded guilty to the first count in the indictment, ² which described a conspiracy to distribute and possess with intent to distribute illegal drugs in violation of 21 U.S.C. §§ 841(a)(1), 846, in return for the Government's pledge to dismiss the remaining charges against them. At sentencing, both defendants denied knowledge that the third delivery contained cocaine instead of marijuana, and Scott testified that no one had ever told him what would be included in that final shipment. Nonetheless, the district court, over defense objections, held Strange and Zamorano accountable for the quantity of cocaine found in the parcel.

In this appeal, Strange and Zamorano contend the district court committed error when it found they could have reasonably foreseen that the package addressed to Scott might be laden with cocaine. In addition, Strange argues the district court inappropriately calculated the criminal history points assessed against him. We consider these points seriatim.

II. DISCUSSION

A. Relevant Conduct

To arrive at the appropriate sentencing range for a drug defendant, it is invariably necessary for the district court to reference the "relevant conduct" provisions of the United States Sentencing Guidelines. See United States v. Hayes, 971 F.2d 115, 117 (8th Cir.1992)("[A] key step in sentencing a drug defendant is to calculate the type and quantity of drugs attributable to that defendant."). In the present case, the district judge applied Guideline § 1B1.3(a)(1)(B) to hold Strange and Zamorano answerable for the 239.5 grams of cocaine located in the third package delivered to Scott. Under that paragraph, a defendant engaged in "jointly undertaken criminal activity" is deemed responsible for "[t]he conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant." U.S. Sentencing Guidelines Manual § 1B1.3 application note 2 (1995). In other words, as relevant to a narcotics conspiracy, a drug defendant is accountable for all contraband "within the scope of criminal activity jointly undertaken by [the defendant] and reasonably foreseeable to him." United States v. Townley, 929 F.2d 365, 370 (8th Cir.1991).

Strange and Zamorano now assert, as they did before the district court, that the Government has failed to prove the scope of their conspiracy extended to encompass cocaine. Rather, the dealers maintain the evidence shows that they contrived to exclusively distribute marijuana. Similarly, given the limited nature of their enterprise, they declare that it could not have been reasonably foreseeable to them that the pertinent package would include cocaine. For these reasons, they contend that the district court incorrectly augmented their sentences by incorporating cocaine into the amount of drugs attributable to them. We will reverse only if the district court committed clear error when ascertaining drug quantity. See United States v. Smith, 49 F.3d 362, 365 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2009, 131 L.Ed.2d 1008 (1995).

Before moving to the merits of this issue, we pause to reflect upon the conduct to which Strange and Zamorano have admitted or that the Government proved by a preponderance of the evidence. It is beyond cavil that both conspirators played instrumental roles in orchestrating the transportation of the package in question. Strange introduced Zamorano and Scott, and he concedes that he acted as a "facilitator" for the various narcotics shipments. To be sure, his awareness of the final conveyance is evidenced by a phone call he made to Scott during which he queried whether the parcel had arrived. Likewise, Zamorano confirms that he arranged the delivery through his "source" in El Paso. Thus, though Strange and Zamorano acknowledge considerable involvement with the illegal mailing, each of the confederates professes to have believed that the carton would contain marijuana, not cocaine. ³

Within this factual context, we are persuaded that it would have been more fitting to assess the conspirators' responsibility for the cocaine under Guideline § 1B1.3(a)(1)(A). ⁴ Unlike paragraph (a)(1)(B), which the district court utilized to hold Strange and Zamorano liable for the "acts and omissions of others," paragraph (a)(1)(A) appertains to conduct personally undertaken by the defendant being sentenced. ⁵ See U.S. Sentencing Guidelines Manual § 1B1.3(a)(1) (1995). For instant purposes, the following elaboration within the Guideline's application notes is of particular moment:

With respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was directly involved....

The requirement of reasonable foreseeability applies only in respect to the conduct (i.e., acts and omissions) of others under subsection (a)(1)(B). It does not apply to conduct that the defendant personally undertakes ...; such conduct is addressed under subsection (a)(1)(A).

U.S. Sentencing Guidelines Manual § 1B1.3 application note 2 (1995). Simply stated, reasonable foreseeability is significant solely when evaluating relevant conduct under § 1B1.3(a)(1)(B); it is completely immaterial to the analysis guided by § 1B1.3(a)(1)(A). ⁶ See United States v. Lockhart, 37 F.3d 1451, 1454 (10th Cir.1994)("Because defendant personally participated in the transaction giving rise to the 1.5 kilograms that the trial court attributed to defendant, the foreseeability of the quantity was irrelevant."); United States v. Corral-Ibarra, 25 F.3d 430, 438 (7th Cir.1994)("[T]he critical distinction is between direct and remote involvement in an illegal activity because only the latter will trigger a reasonable foreseeability inquiry."); cf. United States v. Tran, 16 F.3d 897, 905 (8th Cir.1994)(declining to consider reasonable foreseeability where the appellant was intimately involved with the drugs at issue).

Mindful of these precepts, we have no difficulty in determining that the district court correctly attributed the 239.5 grams of cocaine to Strange and Zamorano. Through their own actions, the two men aided, abetted, and wilfully caused the conveyance to Scott of at least three packages. See U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(A) (1995). Their convictions verify that they embarked upon this behavior with the requisite criminal intent and with every expectation of receiving some type of illegal drug to distribute. Accordingly, under the scheme sanctioned by Congress, and without regard to reasonable foreseeability, they are accountable at sentencing for the full quantity of all illegal drugs located within the parcels. ⁷ See id. § 1B1.3 application note 2, illus. (a)(1) (suggesting that a drug defendant is chargeable at...