UNPUBLISHED
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Affirmed in part; vacated and remanded in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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. § 841(a),
(b)(1)(A) (West 1999 & Supp. 2008) (Count 2). 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 drug agents and local police in
Charlotte, North Carolina. 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. Conejo was charged with the
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federal offenses of conspiracy to possess five kilograms of
cocaine with intent to distribute and possession of five
kilograms of cocaine with intent to distribute. At Conejo’s
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.
Conejo’s recommended advisory guideline range was
63-78 months. Based on the lab report, Conejo refused 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 a 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
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because the district court gave insufficient consideration to
the lab report.
Prior to “entering judgment on a 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 court’s finding of a factual basis
for a guilty plea is reviewed for abuse of discretion. United
States v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002). There is
no abuse “so long as the district court could reasonably
determine that there was a sufficient factual basis.” 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 a sale of five kilograms of
cocaine.
Under 21 U.S.C. § 846, the sentences for drug
conspiracies are set out in § 841(b), which “creates a
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three-part graduated penalty scheme for drug distribution
offenses, premised on the type and quantity of the drugs
involved.” United States v. Brooks, 524 F.3d 549, 557
(4th Cir.), cert. denied, 129 S. Ct. 519 (2008). 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.’” Id. (quoting United States v.
Promise, 255 F.3d 150, 156 (4th Cir. 2001)). Thus, the specific
threshold drug quantity generally must be proved beyond a
reasonable doubt or admitted by the defendant. Brooks, 524 F.3d
at 556-57. The specific threshold quantity of cocaine required
for a sentence under § 841(b)(1)(A) is five kilograms.
However, for a conspiracy offense, the defendant’s
agreement to commit a crime involving a specific amount is the
essential element that must be proved to trigger a statutorily
enhanced sentence, not whether the agreed-upon conduct was
actually completed. See United States v. Dixon, 449 F.3d 194,
202 (1st Cir. 2006) (“factual impossibility is not a defense to
either liability or sentencing enhancements for inchoate
offenses such as conspiracy or attempt”); United States v.
Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (attempt). However,
for the statutory minimums of § 841(b) to apply, the particular
threshold drug amount must be reasonably foreseeable to the
defendant. Brooks, 524 F.3d at 558. Here, we are satisfied
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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 responsible for
five kilograms of cocaine on Count One. See U.S. Sentencing
Guidelines Manual § 2D1.1, comment. (n.12) (when offense
involves agreement to sell drugs, agreed-upon quantity is used
to determine offense level unless amount delivered more
accurately reflects scale of offense). Therefore, the probation
officer correctly calculated the advisory guideline range at 63-
78 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 Count Two, which charged that Conejo possessed
five kilograms of cocaine with intent to distribute, the
government concedes that the specific threshold drug quantity
needed to trigger a sentence under § 841(b)(1)(A) was not
present, and we agree. Thus, for Count Two, the default penalty
subsection of § 841(b)(1)(C) applied, which sets only a
statutory maximum of twenty years. 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
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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
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