IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 30, 2010
No. 09-40394 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JUAN ANTONIO ORTIZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before WIENER, PRADO, and SOUTHWICK, Circuit Judges.
Leslie H. Southwick, Circuit Judge.
Juan Antonio Ortiz pled guilty to possession with intent to distribute more
than 100 kilograms of marijuana. On appeal, Ortiz claims the district court
erred in calculating his total drug quantity amount. We agree. We VACATE
Ortiz’s sentence and REMAND for resentencing.
FACTS
The government’s undisputed proffer at Ortiz’s rearraignment is the
source for the following factual summary. In May 2007, Immigration and
Customs Enforcement (“ICE”) agents were conducting a drug investigation in
Brownsville, Texas. On May 7, an ICE undercover operative provided Juan
Miguel Pineda with a Chevrolet Suburban to use for transporting drugs. That
No. 09-40394
night, agents were watching as Juan Pineda’s cousin, Fernando Pineda, Jr.,
drove the Suburban to a complex of condominiums within the Brownsville
Country Club. Twenty minutes later, the agents followed the Suburban to a
gasoline station. There, Fernando met Juan and switched vehicles with him.
Then both men left in separate vehicles and drove north toward Harlingen.
Within ten minutes, both were stopped for traffic violations. Agents discovered
214.64 kilograms of marijuana inside the Suburban. The Pinedas told the
agents that they had loaded the marijuana from a condominium garage at the
country club. Agents located the condominium. It was leased to Cristal Pulido-
Sotelo. They noticed a strong odor of marijuana. A narcotics dog noticed, too,
and alerted at the garage door. Agents knocked, but no one responded.
Agents returned to the condominium the next day. They arrested Ortiz,
Pulido-Sotelo, and Enedelia Cuellar. Approximately 270 kilograms of marijuana
were in plain view in the kitchen, another 466 kilograms were in closets within
the garage, and 550 grams of cocaine were inside a suitcase in the first bedroom.
Ortiz admitted that he was aware of the marijuana in the house and that
he had provided the Pineda cousins with the marijuana discovered in the
Suburban. Cuellar gave a statement claiming ownership of the suitcase in
which the cocaine was found. She later claimed a friend gave her the suitcase
the previous day and was supposed to pick it up later.
Ortiz was charged with drug possession and conspiracy offenses in a six-
count, multi-defendant indictment. On September 5, 2007, Ortiz pled guilty to
possession with intent to distribute more than 100 kilograms of marijuana.
Ortiz did not dispute anything in the government’s fact proffer and stated that
he had nothing else to add. His counsel, though, said that Ortiz would challenge
any inclusion of the cocaine as part of his relevant conduct at sentencing.
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No. 09-40394
Although his conviction involved only 100 kilograms, his Pre-sentence
Report (“PSR”) determined Ortiz to be responsible for 1,063.59 kilograms of
marijuana and its equivalent. See U.S.S.G. § 2D1.1 cmt. 10 (explaining drug
equivalency). The total included the 738.95 kilograms of marijuana seized from
the house, the 214.64 kilograms of marijuana seized from the Suburban, and the
550 grams of cocaine, which, for sentencing purposes, has an equivalent value
of 110 kilograms of marijuana. Id. § 2D1.1 cmt. 10(E). This drug quantity
corresponded with a base offense level of thirty-two. Id. § 2D1.1(c)(4) (more than
1,000 kilograms but less than 3,000 kilograms of marijuana).
The probation officer recommended a two-level enhancement due to Ortiz’s
role as an “organizer, leader, manager, or supervisor,” but a three-level reduction
for acceptance of responsibility. The total offense level of 31, combined with a
criminal history category of V, resulted in an advisory Guidelines range of 168
to 210 months. Ortiz raised two objections to the PSR that continue to be
asserted here.
First, he argued that he should not be held accountable for the cocaine
discovered in Cuellar’s suitcase. This objection was overruled.
Second, he argued that the drug quantity calculation should reflect the
weight of the drugs alone and not the gross weight of the drugs and packaging.
After hearing testimony from the probation officer and the ICE case agent, the
district court overruled Ortiz’s objection as to the marijuana. The basis for this
decision was that no net weight measurement of the marijuana had been taken
before it was destroyed, and there was no judicial consensus on what percentage
by which the gross weight should be reduced in order to get the correct net
weight. Thus, the district court found that Ortiz was accountable for the gross
weight of the marijuana and packaging, which amounted to 953.59 kilograms.
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No. 09-40394
As to the cocaine, though, a net weight measurement did exist. The
district court sustained Ortiz’s objection with respect to the cocaine and used the
net weight of 500.6 grams rather than the gross weight of 550 grams for the drug
quantity calculation. This reduction of approximately 50 grams equated to a 10
kilogram reduction in marijuana equivalency. See id. § 2D1.1 cmt. 10(E).
As a result of the objection, Ortiz was now accountable for 1,053.59
kilograms. The change had no effect on the Guidelines calculation, as the new
quantity left him within the 1,000 to 3,000 kilograms range. His Guideline
range of 168 to 210 months remained unchanged.
Ortiz was sentenced to 120 months in prison, which was the sentence
requested by the government. The written judgment, though, stated that 120
months was the mandatory minimum sentence.
On appeal, Ortiz challenges the calculation of his sentence and the
statement that 120 months was the mandatory minimum sentence.
DISCUSSION
The pro se notice of appeal was untimely. The government notes the
untimeliness but does not object to considering the merits. The time limit for
appeal can be waived. United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.
2007). We will review the merits of Ortiz’s claims.
Sentences both inside and outside the Guidelines range are reviewed for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). First, the
court must determine whether the district court committed any significant
procedural errors, such as improperly calculating the Guidelines range. Id. If
the sentence is procedurally sound, the court considers the substantive
reasonableness of the sentence imposed. Id. The district court’s application of
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No. 09-40394
the Guidelines is reviewed de novo, and factual findings are reviewed for clear
error. United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008).
I. Cocaine Attributed to Ortiz as Relevant Conduct
We need to expand on the discussion of the facts in order to assess the
validity of attributing the cocaine to Ortiz as relevant conduct for sentencing.
Juan Ortiz lived with his wife and children in Matamoros, Mexico. Ortiz
paid the rent on the condominium at the Brownsville Country Club where the
drugs were found. Living there were Cristal Pulido-Sotelo, with whom Ortiz was
having an affair, and her young daughter. Ortiz used the condominium as a
stash house for marijuana and occasionally stayed overnight.
Enedelia Cuellar lived in Matamoros. She was friends with Pulido-Sotelo
and often stayed during weekends at the condominium so she could enjoy the
Brownsville nightlife. Cuellar usually shared the first bedroom with Pulido-
Sotelo while Pulido-Sotelo’s daughter slept in the second bedroom.
How the suitcase containing cocaine came to be at the condominium is not
conclusively shown. Among the versions is one in the PSR. It states that on
May 6, 2007, Cuellar spent the night with an unidentified male friend in
Brownsville. The following morning, Cuellar went to Matamoros to ask her
mother for some money. Soon after she returned to Brownsville, Cuellar’s male
friend contacted her to ask if she was going to pick up her suitcase. Cuellar
arranged for the two of them to meet at the port of entry so that she could
retrieve it. After getting her suitcase back, Cuellar was picked up by “Shelly,”
a female she had only known for a short time. That evening, which was the
night the Pinedas were arrested, Cuellar arrived at Pulido-Sotelo’s condominium
with the suitcase. She then left to visit various Brownsville nightclubs.
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No. 09-40394
Other stories about the suitcase were given during debriefing sessions.
None of them directly connect the suitcase or the cocaine to Ortiz.
While Cuellar was out, ICE agents came to the condominium and detected
the odor of marijuana. When Cuellar returned in the early morning hours, she
noticed the marijuana in the kitchen. Since Ortiz and Pulido-Sotelo were in the
first bedroom where Cuellar usually slept, Cuellar slept in the second bedroom
with Pulido-Sotelo’s daughter.
On May 8, ICE agents returned to the condominium and “knocked and
announced” their presence. However, after seeing a female approach the door
and then rush back into the condominium, the agents entered without a
warrant. No challenge to the entry and search is made on appeal. Once inside,
the agents saw marijuana in plain view in the kitchen. On that basis, they
arrested Ortiz, Pulido-Sotelo, and Cuellar. A search of the condominium led to
the discovery of more marijuana in the garage as well as the cocaine under
women’s clothing in the suitcase. The suitcase was in the first bedroom where
Ortiz and Pulido-Sotelo had spent the night. It was also where the two were
located when the agents entered the condominium.
Following his arrest, Ortiz admitted being a regular cocaine user and that
he had used some on the morning he was arrested. The cocaine in the suitcase
was the only cocaine discovered in the apartment. Ortiz has always denied
having any knowledge about the cocaine in the suitcase.
At the sentencing hearing, defense counsel argued that the cocaine should
not be attributed to Ortiz as relevant conduct. Counsel claimed that Cuellar put
the suitcase in the first bedroom when she arrived at the condominium, because
she planned to sleep in that room as usual when she returned from the
nightclubs. Ortiz’s connection with the cocaine was only that it happened to be
in the room in which he spent the night.
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No. 09-40394
In support of this argument that there was no connection between Ortiz
and the cocaine, the defense counsel called ICE case agent Amador Zapata and
probation officer Enrique Guerra to testify. Zapata provided background
information about the discovery of the cocaine. Ortiz’s counsel then asked
whether there was any evidence tying Ortiz to the cocaine other than the fact
that he rented the condominium with Pulido-Sotelo. Zapata responded:
No, I have even submitted the cocaine to be fingerprinted. I
submitted all individuals’ fingerprints to be compared to any
successful prints taken off the cocaine, and there were no successful
prints removed from the cocaine wrappings. Therefore, . . . we
weren’t able to fully identify in that manner who might have
touched the cocaine. But there’s nothing to tell me that any one of
those three — or all three could have put the cocaine in there. I
have no idea.
On cross-examination, Zapata explained that the suitcase was three to
four feet away from the bed where Ortiz and Pulido-Sotelo had spent the night.
The only reason he associated the cocaine with Cuellar was that it was found in
her suitcase under women’s clothing. Zapata also explained that he believed all
three individuals lied during their debriefing sessions and that it was difficult
to determine the truth. For example, Zapata was suspicious of Pulido-Sotelo’s
statements that Cuellar imported the cocaine from Mexico. He thought that to
be unlikely because importers rarely hold on to drugs once they cross the border.
Zapata said ICE also had no prior intelligence of Cuellar being involved in
cocaine trafficking. In response to the government’s questions, Zapata explained
that it was possible Ortiz put the cocaine in the suitcase when the police entered
the condominium in an effort to distance himself from it.
Defense counsel also called probation officer Enrique Guerro. The officer
explained why he included the cocaine as part of Ortiz’s relevant conduct:
We held that Mr. Ortiz’s relevant conduct as far as him
providing Ms. Pulido-Sotelo the apartment, paid for her rent, gave
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No. 09-40394
her an additional allowance per week, stored the drugs in said place,
the drugs that were seized from the Suburban were loaded in that
particular place, we felt that everything should be accountable to
him.
The cocaine that was found inside the red suitcase, we felt
that since he rented the apartment, he was paying for the rent,
anything that was found within the house he should be held
accountable for.
The district court found by a preponderance of the evidence that the
cocaine was properly attributable to Ortiz as relevant conduct. The district court
noted that Ortiz was in charge of the drug trafficking being operated out of the
condominium, that he had previous drug trafficking convictions, and that he was
admittedly a frequent user of cocaine. In contrast, Pulido-Sotelo and Cuellar
had no criminal histories and had only admitted using cocaine on four occasions
and on one occasion, respectively. Furthermore, the district court explained that
it found the story of how Cuellar claims to have received the suitcase to be very
unbelievable. The district court noted that a more likely scenario was that
Cuellar brought the drugs to the condominium at Ortiz’s instruction and that
“Ortiz, being more experienced, knew that by placing the cocaine in that suitcase
that he could back away from it and . . . leave the defendant Cuellar holding the
bag for all practical purposes.”
The marijuana equivalent of the cocaine was included in Ortiz’s total drug
quantity for the purposes of calculating his base offense level. This added 100
kilograms of marijuana to Ortiz’s total.
Now that we understand why Ortiz was held responsible for the cocaine,
we examine the legal basis for doing so. When calculating a defendant’s base
offense level in a drug case, the district court may consider a defendant’s
relevant conduct. United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir.
2007). Relevant conduct is defined as “all acts and omissions” that were either
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No. 09-40394
(1) part of a “common scheme or plan” or (2) part of the “same course of conduct”
as the offense of conviction. U.S.S.G. § 1B1.3(a)(2). Factual findings regarding
relevant conduct are reviewed for clear error. United States v. Rhine, 583 F.3d
878, 885 (5th Cir. 2009). These findings are not clearly erroneous as long as they
are “plausible in light of the record as a whole.” Id. We examine each factor.
(1) Common Scheme or Plan
An unadjudicated offense may be part of a “common scheme or plan” if it
is “substantially connected to [the offense of conviction] by at least one common
factor, such as common victims, common accomplices, common purpose, or
similar modus operandi.” Id. at 885 (quoting U.S.S.G. § 1B1.3 cmt. n.9(A))
(alterations in original). We broadly define what constitutes a “common scheme
or plan” in a drug distribution case. Id. However, the analysis cannot be too
broad, otherwise “almost any uncharged criminal activity can be painted as
similar in at least one respect to the charged criminal conduct.” Id. at 889
(quoting United States v. Mullins, 971 F.2d 1138, 1145 (4th Cir. 1992)).
There are no common victims, and the modus operandi of the two offenses
are not similar. Therefore, we examine whether it is plausible in light of the
record as a whole for the district court to have found that there were common
accomplices or purposes.
Ortiz argues that Pulido-Sotelo, the Pineda cousins, his marijuana
supplier, and the person who was to receive the marijuana were his accomplices,
and that there is no evidence any of these individuals were also involved in the
cocaine offense. Rather, he argues the evidence shows that the only known
participants in the cocaine offense were Cuellar, her unidentified male friend,
and the “Shelly” who picked her up after the suitcase had been delivered at the
border to Cuellar.
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No. 09-40394
The government relies on circumstantial evidence suggesting that Cuellar
may have been an accomplice in both offenses. During at least one of the
debriefing sessions, one of the Pinedas told ICE agents that three women helped
move the marijuana from the condominium garage to the Suburban. Pulido-
Sotelo was later identified as one of these women. Although no one ever
identified them, the government theorizes that the other two women may have
been Cuellar and Pulido-Sotelo’s young daughter. This argument presents only
speculation that Cuellar may have been involved in both offenses. The district
court did not find that Cuellar was.
In addition, the general goal of selling drugs for a profit is insufficient to
satisfy the common purpose factor. We have vacated a sentence where the only
factor indicating a common scheme or plan was that the two offenses shared the
goal of importing drugs into the United States. United States v. Wall, 180 F.3d
641, 645 (5th Cir. 1999). Ortiz’s case is similar in that the only factor suggesting
the existence of a common scheme or plan is the very general goal of selling
drugs for profit. It is also error to define relevant conduct too broadly. See
Rhine, 583 F.3d at 889. Such overbreadth exists when concluding that the
marijuana and cocaine offenses were part of a common scheme.
(2) Same Course of Conduct
An unadjudicated offense that is not part of a common scheme or plan with
the offense of conviction may still be considered relevant conduct if the offenses
are part of the “same course of conduct.” U.S.S.G. § 1B1.3 cmt. 9(B).
Unadjudicated offenses can be considered part of the same course of conduct “if
they are sufficiently connected or related to [the offense of conviction] as to
warrant the conclusion that they are part of a single episode, spree, or ongoing
series of offenses.” Id.
The Guidelines identify factors that help in this determination:
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No. 09-40394
[1] the degree of similarity of the offenses, [2] the regularity
(repetitions) of the offense, and [3] the time interval between the
offenses. When one of the above factors is absent, a stronger
presence of at least one of the other factors is required.
Id.
Two offenses may be sufficiently similar to be part of the same course of
conduct if “there are distinctive similarities between the offense of conviction
and the remote conduct that signal that they are part of a single course of
conduct rather than isolated, unrelated events that happen only to be similar in
kind.” Wall, 180 F.3d at 646(quoting United States v. Maxwell, 34 F.3d 1006,
1011 (11th Cir. 1994)).
There are no such distinctive similarities here. Other than the fact that
the cocaine was discovered in the same condominium as the marijuana, there is
no evidence that the marijuana and cocaine offenses are similar. There is no
evidence that there were any common accomplices, suppliers, or buyers between
the two offenses. In addition, the marijuana offense involved massive quantities
of the drug, much of it in plain view, throughout the condominium. In contrast,
the relatively small amount of cocaine was located in one bag hidden inside
Cuellar’s suitcase. The fact that both marijuana and cocaine are illegal drugs
is not enough for us to find that they arise from the same course of conduct.
Deciding the “regularity” of the offense is a search for a “pattern of similar
unlawful conduct directly linking the purported relevant conduct and the offense
of conviction.” Rhine, 583 F.3d at 889-90. Ortiz has two previous convictions for
drug offenses, both of which involved the transportation or receipt of fairly large
quantities of marijuana. The regular conduct that such proof supports is that
Ortiz is involved in marijuana trafficking. It is not proof of regular conduct
involving other drugs. There is no evidence that cocaine importing, or perhaps
even importing whatever the supply, the demand, and the law enforcement risks
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No. 09-40394
make most advisable, was Ortiz’s pattern. Instead, we have a criminal who
regularly engages in a particular kind of crime.
The marijuana and cocaine offenses occurred temporally and physically
together. The condominium was being used as a drug stash house. There was
strong evidence that Ortiz was in charge of the condominium. Yet in this drug
distribution case, when the fact that two different drugs were in the same place
at the same time is all that is offered to prove two offenses are part of the same
course of conduct, and when the other evidence does not suggest any connection
at all, a “substantial connection” has not been shown to be plausible.
The evidence revealed a significant marijuana trafficking operation for
which Ortiz had central responsibility. It also revealed a separately packaged,
separately delivered quantity of cocaine in a suitcase, which the direct evidence
connected to someone else. Only speculation based primarily on the proximity
of the cocaine’s container connected the cocaine to Ortiz. This is not evidence
that the cocaine and the marijuana were joined in an “episode, spree, or ongoing
series of offenses.” U.S.S.G. § 1B1.3 cmt. 9(B). The district court erred by
attributing the cocaine to Ortiz as relevant conduct.
By considering the cocaine to be part of the relevant conduct, Ortiz was
held accountable for over 1,000 kilograms of marijuana and its equivalent.
Removing the cocaine from the calculation results in a total drug quantity of
953.59 kilograms of marijuana. This revised total means that Ortiz is now
accountable for between 700 and 1,000 kilograms of marijuana rather than being
accountable for between 1,000 and 3,000 kilograms. Accordingly, Ortiz’s revised
base offense level will be 30 rather than 32. Id. § 2D1.1(c)(5). This lower
amount changes the sentencing range. Consequently, we vacate the sentence.
II. Use of Gross Weight of Marijuana
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No. 09-40394
Ortiz also argues that the district court erred by using the gross weight,
rather than the net weight, of the marijuana when calculating his total drug
quantity. The gross weight was shown to be 953.59 kilograms.
We have been given various estimates by the parties as to how much of a
reduction in the quantity of marijuana would occur by using different estimates
of the weight of the packaging. None of those would remove the quantity from
the newly established 700 to 1,000 kilogram range. Because of this reduction
resulting from removal of the cocaine, any possible error in the use of the gross
weight of the marijuana would be harmless. We decline to address possible error
in how the gross versus net weight issue was resolved.
One other point needs making. The government concedes that 60 months,
not 120 months, was the mandatory minimum sentence. 21 U.S.C. §
841(b)(1)(B). Any new sentence needs to be entered with that in mind.
We VACATE Ortiz’s sentence and REMAND for resentencing.
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