U.S. v. Granados, s. 90-2940

• Decision Date: 15 April 1992
• Docket Number: Nos. 90-2940,90-3012,s. 90-2940
• Citation: 962 F.2d 767
• Parties: UNITED STATES of America, Appellee, v. Francisco GRANADOS, Appellant. UNITED STATES of America, Appellee, v. Mark E. MORA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 767

962 F.2d 767

UNITED STATES of America, Appellee, v. Francisco GRANADOS, Appellant.

UNITED STATES of America, Appellee, v. Mark E. MORA, Appellant.

Nos. 90-2940, 90-3012.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 18, 1991.

Decided April 15, 1992.

Alan G. Stoler, Omaha, Neb., argued, for appellant Granados.

Emil M. Fabian III, Omaha, Neb., argued, for appellant Mora.

Paul D. Boeshart, Lincoln, Neb., argued (Ronald D. Lahners and Paul D. Boeshart on the brief), for appellee.

Before LAY, ^* Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

LAY, Chief Judge.

Francisco Granados and Mark E. Mora pleaded guilty to conspiracy to possess with intent to distribute cocaine, a schedule II, controlled substance, in violation of 21 U.S.C. § 846 (1981 and Supp.1990), and knowing and intentional possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (1981 and Supp.1990), for which they were sentenced to 175 months and 180 months, respectively. They now appeal those sentences.

BACKGROUND

The record reveals that the two defendants were involved in a cocaine distribution scheme to distribute cocaine. In furtherance of the conspiracy, numerous trips to California were made by Mora, Funk, Clifford, Baratta, Kress and other conspirators. The conspirators pooled their money and purchased cocaine, which they then brought back to Nebraska and sold. Mora sold some of his portion of the cocaine to his cousin Francisco Granados, who in turn sold that cocaine to others. Granados also purchased cocaine from Clifford. Granados was aware of the trips to California and their general purpose. Kress acted merely as a mule or courier and did not purchase or sell cocaine. Kress served as a "runner," traveling between Omaha and Lincoln, Nebraska, on several occasions to transport money and cocaine from Mora to Funk. A wiretap on conspirator Funk's telephone revealed that on November 27, 1987, Mora called Funk's home to ask when Funk would be returning from California. Funk was in California purchasing more cocaine at the time; Funk returned to Nebraska with cocaine and was arrested on December 1, 1987.

Mora and Granados were later arrested and charged in a three count indictment with conspiracy to distribute cocaine; two other charges were dropped as part of the plea agreements. Granados pleaded guilty to intent to distribute more than 3.5 kilograms but less than 5 kilograms of cocaine. He also testified that he collected guns, which he kept at his home. Mora pleaded guilty to intent to distribute more than 5 but less than 15 kilograms of cocaine. The court determined that Granados had a level III criminal history and Mora a level IV criminal history. They each received a two level downward adjustment for acceptance of responsibility. Under the guidelines, the district court sentenced Granados to 175 months and Mora to 180 months.

A. Granados

Granados seeks a review of the sentence imposed, claiming that the trial court 1) incorrectly determined the amount of cocaine involved, 2) incorrectly enhanced his sentence for an alleged use of a firearm during the commission of the conspiracy, and 3) erred in imposing disparate sentences on Granados and his co-conspirator Kress.

1. The Base Offense Level

In calculating Granados' base offense level, the probation officer included the amount of cocaine attributable to the conspiracy, more than 5 and less than 15 kilograms of cocaine. Although Granados raised other objections to the information contained in the presentence report (PSR), he did not object to this finding. He was assigned a level four criminal history and was granted a two level reduction for acceptance of responsibility. The district court, upon review of the PSR, determined that Granados should be assigned a level III rather than level IV criminal history. Granados challenges his sentencing for involvement in a conspiracy to distribute in excess of 5 kilograms of cocaine, claiming that the amount involved in the conspiracy was not reasonably foreseeable to him. We disagree.

Whether uncharged drugs are part of a common scheme or plan is a factual finding which will be disturbed on appeal only if clearly erroneous. See 18 U.S.C. § 3742(e)(4) (Supp.1991); United States v. Pou, 953 F.2d 363 (8th Cir.1992); United States v. Watts, 950 F.2d 508 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1276, 117 L.Ed.2d 502 (1992); United States v. Johnson, 906 F.2d 1285 (8th Cir.1990); United States v. Hoelscher, 914 F.2d 1527 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1990).

Under the guidelines, Granados may be held responsible for the amount of cocaine involved in the conspiracy if his co-conspirator's sales were in furtherance of the conspiracy and were either known by or reasonably foreseeable to him. U.S.S.G. § 2D1.4, comment (n.1). A person's base offense level is to be determined on the basis of "all acts and omissions committed or aided and abetted by the defendant, or ... that occurred during the commission of the offense of conviction, in preparation for that offense, ... or that otherwise were in furtherance of that offense." U.S.S.G. § 1B1.3(a)(1) (Amd. Nov. 1, 1990). A conspiracy exists when persons agree to perform various acts to accomplish a specific objective or objectives. United States v. Jackson, 696 F.2d 578, 582 (8th Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983). Granados admitted that he and Mora signed an agreement to distribute drugs. Thus the only question regarding the amount of cocaine for which Granados was held accountable is whether Mora's other sales were either known to or were reasonably foreseeable by Granados.

Although a party to a conspiracy takes the conspiracy as he finds it and need not know or approve of each act of his co-conspirator, it must be shown that "the accused was aware of the nature and scope of the conspiracy and knowingly joined in the overall scheme." Id. Granados relies on United States v. North, 900 F.2d 131 (8th Cir.1990), to support his contention that the amount of cocaine sold by Mora was not reasonably foreseeable by him. In North, this court determined that the district court had erred in enhancing the defendant's sentence for distributing narcotics by the amount of methamphetamine seized from a co-conspirator. In reversing, we held that distribution of drugs by North's co-conspirator, of which North had "no knowledge, received no benefit, and did not participate, [could not] be considered to have been done in furtherance of their conspiracy." 900 F.2d at 133.

Unlike North, Granados admitted to participating in the conspiracy, was aware of the nature and scope of the conspiracy, and knowingly joined in the overall common scheme. Granados testified that he suspected the origin of the cocaine. (PSR p 57). An uncontradicted, unchallenged statement in his PSR states that "between the second and third [cocaine buying] trip[s], Granados, Mora and Clifford met in Granados' garage. Granados was working on his motorcycle and was told of the next California trip. Granados then asked when the cocaine would be available as he had customers who were ready to purchase from him." PSR p 17. According to another unchallenged statement in Granados' PSR, on another occasion, Granados met Clifford at an Omaha bar and "discussed the California trips. Granados wanted Clifford to sell him cocaine because the cocaine he was obtaining from Mora was too expensive. Clifford received $6000 from Granados approximately four to six days later after the quarter pound [of cocaine] was delivered." PSR p 27. Granados met several times with both Mora and Clifford and purchased cocaine from each of them on numerous occasions.

The facts in the instant case establish that a close working relationship existed among the co-defendants. In light of the testimony, uncontested PSR statements, ¹ and other evidence presented to the district court, we cannot find that the district court's sentencing Granados on the basis of more than 5 and less than 15 kilograms of cocaine was clearly erroneous.

2. Granados contends that the district court committed reversible error in determining from the evidence that he possessed a firearm during the conspiracy. He claims that the evidence was insufficient and could not reasonably be considered reliable. The presentence report contained information based on an interview with John R. McGill that Granados threatened to shoot McGill's foot off if McGill did not pay a drug debt he owed Granados. In a later affidavit, McGill denied that Granados had threatened him with a gun when he came to collect a drug debt in February of 1989. Granados claims that the district court erroneously relied upon the presentence investigation statements concerning the threat and ignored McGill's subsequent denial that the February event occurred.

Granados specifically objects to the district court's alleged reliance upon the PSR statement that Granados threatened McGill with a gun in an attempt to collect a drug debt. We have observed that "[t]he presentence report is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact." United States v. Streeter, 907 F.2d 781, 791-92 (8th Cir.1990). Once a defendant objects to a factual allegation in the presentence report, the court must make "i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing." See Fed.R.Crim.P. 32(c)(3)(D). If the former course is chosen, this court has held that "the government must introduce evidence sufficient to convince the Court by a preponderance of the evidence that the fact in question exists." Streeter, 907 F.2d at 792. Granados specifically objected to the statement that he had threatened to shoot McGill. Once...