U.S. v. Garrido, VILLANUEVA-HERNANDE

• Decision Date: 03 June 1993
• Docket Number: 92-2975,VILLANUEVA-HERNANDE,92-3016 and 92-3197,A,Nos. 92-2925,VALENZUELA-VALLE,s. 92-2925
• Citation: 995 F.2d 808
• Parties: UNITED STATES of America, Appellee, v. Jose Hernandez GARRIDO, Appellant. UNITED STATES of America, Appellee, v. Ismaelppellant. UNITED STATES of America, Appellee, v. Jose Guerreroppellant. UNITED STATES of America, Appellee, v. Carlosppellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 808

995 F.2d 808

UNITED STATES of America, Appellee, v. Jose Hernandez GARRIDO, Appellant.

UNITED STATES of America, Appellee, v. Ismael VILLANUEVA-HERNANDEZ, Appellant.

UNITED STATES of America, Appellee, v. Jose Guerrero VALENZUELA-VALLES, Appellant.

UNITED STATES of America, Appellee, v. Carlos VILLANUEVA-HERNANDEZ, Appellant.

Nos. 92-2925, 92-2975, 92-3016 and 92-3197.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 17, 1993.

Decided June 3, 1993.

Robert Thomas Day, Federal Public Defender, St. Louis, MO, argued for Jose H. Garrido; Henry B. Robertson of St. Louis, MO, argued for Ismael Villanueva-Valles; Kim Roger Luther of St. Louis, MO, argued for Jose Valenzuela-Valles; Kenneth D. Goins of St. Louis, MO, argued for Carlos Villanueva-Hernandez.

Edward J. Rogers, Asst. U.S. Atty., St. Louis, MO, argued for appellee.

Before McMILLIAN, MAGILL, and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

This case involves a conspiracy to distribute marijuana. All four defendants were found guilty after a jury trial, and appeal, raising several claims of error at trial and at sentencing. We affirm the majority of issues. However, we vacate the sentences and remand for resentencing, finding error in the marijuana quantities used to determine the offense levels.

I. BACKGROUND

Detective Ron Pauley, who worked for the MEG Unit, a narcotics law enforcement team in St. Louis County, Missouri, arranged with defendant Jose Valenzuela-Valles (Valenzuela) to purchase marijuana in January 1992. On January 30, Pauley met with a confidential informant (CI) and Valenzuela to discuss the purchase. On January 31, Valenzuela joined the CI and drove to another location to pick up defendant Jose Garrido (Garrido). The three then went to Garrido's house. En route, Garrido and Valenzuela made two phone calls to defendant Carlos Villanueva-Hernandez (Carlos), and called Carlos again from Garrido's house.

Shortly after the CI, Valenzuela, and Garrido arrived at Garrido's house, Carlos and his brother, defendant Ismael Villanueva-Hernandez (Ismael), arrived. Carlos asked for payment for the marijuana, and was told the money was at Thrifty Inn Motel. Pauley had rented a room at the Thrifty Inn to facilitate conducting this sting operation, and a surveillance team was monitoring the motel. The CI drove to Thrifty Inn, accompanied by Valenzuela and Garrido, and parked in a restaurant parking lot next to the motel. Carlos and Ismael drove together in their car, and also parked in the restaurant parking lot. Carlos, Valenzuela, Garrido, and the CI then entered the motel. Ismael remained in the car, and locked all the doors to the passenger compartment.

The CI called Pauley's room from the lobby, and Garrido stood next to the CI during this call. Garrido left the motel and began pacing around the parking lot of the motel, looking all around and turning his head in all directions. The CI and Valenzuela went up to Pauley's room where Pauley showed them the money, and then left to get the marijuana. While the CI and Valenzuela waited at the motel side entrance, Carlos returned to the car, and Ismael drove it to the side entrance. As Ismael relocked the passenger compartment, Carlos removed a brick of marijuana from the trunk and reentered the motel. The CI and Carlos took the marijuana to Pauley's room, then returned to the car to get the rest of the marijuana. When Carlos came back out of the motel, Ismael opened the trunk with a release located in the glove compartment. Carlos removed a box containing more marijuana from the trunk, and returned to Pauley's room. This transaction involved 31.6 pounds of marijuana. The police then arrested all four defendants. A surveillance team made a videotape from the parking lot before and during the arrests.

Carlos consented to a search of his house. In the house, police discovered two boxes containing forty-three white paper bags filled with 43.05 pounds of marijuana, a .22 caliber rifle, ¹ packaging materials, a triple beam scale, and $3500.

All four defendants were charged with: (Count 1) conspiracy to possess and distribute marijuana in violation of 21 U.S.C. § 841(a)(1); and (Count 2) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). The defendants were tried together before a jury. After trial, the jury returned a verdict of guilty for all four defendants on both counts.

At sentencing, the court found that the conspiracy had 150 pounds of marijuana available for sale, and used that amount to calculate an offense level of 22 for all four defendants. Ismael's and Carlos' (the brothers) offense levels were enhanced by two levels under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon during the commission of the offense. Carlos' offense level was enhanced by an additional four levels under U.S.S.G. § 3B1.1(a) based on the finding that he was a leader in a criminal activity involving five or more participants. ² Garrido was sentenced to two concurrent terms of fifty-one months; Ismael was sentenced to two concurrent terms of fifty-one months; Valenzuela was sentenced to two concurrent terms of forty-six months; and Carlos was sentenced to two concurrent terms of seventy-eight months.

II. DISCUSSION

A. Amount Used to Establish Base Offense Level

All four defendants objected at sentencing to calculating their offense levels based on a finding that the conspiracy participants had 150 pounds of marijuana available to distribute.

The court relied on U.S.S.G. § 2D1.4 to reach the final figure of 150 pounds. This section states that "the offense level shall be the same as if the object of the conspiracy ... had been completed." U.S.S.G. § 2D1.4. ³ When calculating that the object of the conspiracy involved 150 pounds, the court included the 31.6 pounds seized at Thrifty Inn and the 43.05 pounds seized from Carlos' house. Thus, the 150-pound estimate assumes that the conspiracy involved the marijuana seized at both locations and also involved 75.35 additional pounds of marijuana which was not seized.

We review factual findings by a sentencing court for clear error. United States v. Balfany, 965 F.2d 575, 584 (8th Cir.1992). We reverse if we are left with the definite and firm conviction that the sentencing court erred. See United States v. Lawrence, 915 F.2d 402, 406 (8th Cir.1990). We have reviewed the evidence before the district court from which it made the finding that the object of the conspiracy involved 150 pounds, and have found only the following: (1) At trial, Detective Pauley was asked how much marijuana he originally was "looking to buy." He answered "approximately a hundred to 150 pounds." Trial Tr. 2-4. Pauley also testified that when he and Valenzuela discussed the purchase, Valenzuela "stated that he did not have the 150 pounds, he had 30 pounds left for sale." Trial Tr. 2-6; and (2) the presentence report for all four defendants contained a statement indicating the confidential informant had told an agent that 150 pounds were available.

However, a presentence report is not evidence, United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993), the confidential informant did not testify at trial that the conspiracy involved 150 pounds, and the government introduced no evidence to support the statement in the presentence report. Pauley's trial testimony does not establish that Valenzuela ever had 150 pounds for sale. It merely establishes that Pauley wanted to buy up to that amount. This is insufficient evidence for the court to have found the object of the conspiracy was the sale of 150 pounds. Compare United State v. Burks, 934 F.2d 148, 152 (8th Cir.1991) (holding clearly erroneous a finding that the defendant intended to manufacture seven pounds of amphetamine when the government produced no evidence of a lab, equipment, or drugs; government agent never saw drugs or smelled distinctive odor from manufacturing; and defendant's course of conduct did not indicate he owned a lab) with United States v. Mason, 982 F.2d 325, 328 (8th Cir.1993) (holding not clearly erroneous a conservative estimate based on number of plastic bags recovered after defendants were seen emptying bags of cocaine during car chase); United States v. Stephenson, 924 F.2d 753, 764 (8th Cir.) (approving use of cash seized and testimony of price for which drug routinely is sold to estimate quantity involved in conspiracy), cert. denied, --- U.S. ----, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991).

Additionally, the government produced evidence which established only that Carlos possessed the marijuana seized from his house. It failed to produce sufficient evidence at trial or at sentencing to establish that the object of the conspiracy included the marijuana seized at Carlos' house. The only reliable evidence produced linking the two quantities of marijuana was the similar packaging. Without more, this is insufficient to establish the object of the conspiracy included the marijuana seized at Carlos' house. Accordingly, the district court's findings that the object of the conspiracy was the sale of 150 pounds of marijuana and that the object of the conspiracy included sale of the marijuana seized at Carlos' house were unsupported by the evidence and were clearly erroneous. The record supports only the finding that the object of the conspiracy was the distribution of the amount at Thrifty Inn.

However, the amount of drugs possessed by a coconspirator can be used to establish the offense level of a defendant if the coconspirator's possession was in furtherance of the conspiracy and was reasonably foreseeable. U.S.S.G. § 1B1.3, comment. (n. 1). Although the district court did not mention this guideline section at sentencing, we may affirm on any ground supported by the record. United States v. Lincoln, 956 F.2d 1465, 1470 (8th Cir.), cert. denied, --- U.S. ----, 113...