F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 7 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3354
(D.C. No. 00-CR-20032-04-CM)
FIDEL ENRIQUE RUELAS, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant was charged in four counts of a ten-count indictment with
conspiracy to possess with intent to distribute illegal drugs (heroin), conspiracy to
introduce contraband into a prison facility, and illegal use of a communication
facility in furtherance of criminal activities. In exchange for dismissal of three
counts, defendant pleaded guilty to one count of violating 21 U.S.C. § 843(b), use
of a communication facility in the furtherance of criminal activity. He appeals
only his sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
His argument on appeal is that the district court erred in increasing his
offense level by two levels under USSG § 2D1.1(b)(3) by finding that the object
of the offense was the distribution of a controlled substance in a prison. He
contends that his plea was not to the use of a communication facility to attempt
distribution, but merely to attempt to possess heroin. “We review the district
court’s legal interpretation and application of the sentencing guidelines de novo
and review the court’s factual findings for clear error, giving due deference to the
district court’s application of the guidelines to the facts.” United States v. Henry ,
164 F.3d 1304, 1310 (10th Cir.), cert. denied , 527 U.S. 1029 (1999).
In his petition to enter his plea, defendant represented that he had
committed the acts charged in Count 9 of the indictment, specifically that he
unlawfully used a communication facility to attempt to possess 19.2 grams of
heroin. R. Vol. I, doc. 76 (plea petition) at 1. He further understood that the
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maximum sentence was four years’ imprisonment with a year of supervised
release and a fine of $30,000. Id. at 2. The plea petition also acknowledges that
there was no limitation on the information the judge could consider at sentencing
and that the court could take into account “all relevant criminal conduct, which
may include counts to which [defendant had not pleaded] guilty or been
convicted.” Id. at 4.
The plea agreement states that defendant pleaded guilty to Count 9 charging
him with using a telephone “to commit, cause, and to facilitate the attempted
possession of 19.2 grams of heroin.” R. Vol. I, doc. 76 (plea agreement) at 1.
Initially the typed version of the agreement contained the language “attempted
possession with intent to distribute a controlled substance.” Id. This language
was changed from “with intent to distribute a controlled substance” to “possession
of 19.2 grams of heroin.” Id. The plea agreement also states that although the
remaining counts would be dismissed, the dismissed counts would be included in
the Sentencing Guideline range calculation as relevant conduct. R. Vol. I, doc 76
(plea agreement) at 2.
Moreover, as part of the plea the agreement, defendant admitted that
The defendant, along with 5 other defendants, is charged with
conspiracy to smuggle a controlled substance into the United States
Penitentiary at Leavenworth, Kansas. The defendant, using a
communication facility, that is, a telephone, would contact
individuals located in California, to obtain heroin. The heroin was
packaged in color coded balloons.
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Each balloon represented the inmate for whom the heroin was
destined. The heroin was then sent to a co-defendant (Hill) in
Oklahoma. Hill would be instructed to transport the heroin to the
prison, and to smuggle it in during a visit with another inmate,
Kenneth Taylor, also a co-defendant in this case. Hill was to place
the balloons in her mouth and then transfer the heroin to Taylor
during a kiss. Tape recorded conversations were intercepted between
the inmates and others establishing the conspiracy. The heroin was
seized from Gladys Hill, packaged in the color coded balloons.
Id. at 2-3.
At the plea hearing, defendant acknowledged understanding that there was
no limit to the information the court could consider, “provided the information
was reliable and this includes relevant information related to any counts against
you to which you have not plead guilty or been convicted.” Plea Tr. at 12. He
further admitted using a telephone to try to obtain 19.2 grams of heroin while
incarcerated at the United States Penitentiary at Leavenworth. Id. at 19.
The presentence report listed the charges against all the defendants
including the two conspiracy counts against defendant: conspiracy to smuggle
a controlled substance into the prison and conspiracy to attempt to possess with
the intent to distribute approximately 19.2 grams of heroin. The report further
outlined the offense conduct, including the telephone calls which had alerted
authorities to the scheme and the particular inmates involved, and the interception
of the heroin before it reached the prisoners. With several exceptions that did not
impact the guideline calculations, defendant did not challenge the factual
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recitation in the report, nor did he challenge the base offense level computation.
Rather, he challenged the addition of the specific offense characteristic of two
points under USSG § 2D1.1(b)(3) “[i]f the object of the offense was the
distribution of a controlled substance in a prison . . . .”
The district court must consider all relevant conduct at sentencing. See
United States v. Washington , 11 F.3d 1510, 1516 (10th Cir. 1993). Relevant
conduct “is pertinent to determining the base level offense level and the specific
offense characteristics.” United States v. McGee , 7 F.3d 1496, 1499 (10th Cir.
1993) (citing USSG § 1B1.3(a)(ii)). Moreover, the scope of that conduct includes
“all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity, that occurred during the commission of the
offense of conviction.” USSG § 1B1.3(a)(1)(B).
At the sentencing hearing, The FBI agent in charge of investigating crimes
at Leavenworth testified at length to the acts of the various defendants, including
numerous telephone calls, the value of the drugs involved, the method of payment
used for prison drug trafficking (with the money trading hands on the outside),
and the methods of determining which prisoners belong to which group. The
agent further explained based on his experience and interviews with numerous
other inmate drug smugglers, that the standard operating procedure was that
a third of the amount would go to the person outside bringing the drugs in, a third
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would belong to the prisoner, and a third would be sold. Sentencing Tr. at 21.
The purpose of the conspiracy was to enable the prisoners to raise money to help
care for their families on the outside. See id.
The district court recognized that the plea agreement itself had been
modified by the defendant “in the sense that it reflects that the defendant wrote
down that he intended to plead guilty to Count 9 as it relates to the possession of
the 19.2 grams of heroin.” Sentencing Tr. at 42-43. The court further noted,
however, that in other sections of the plea agreement, defendant had
acknowledged he would be subject to “the relevant conduct which is set out to
include the other counts to which he’s not pleading guilty to. Id. at 43; see also
R. Vol. I, doc 76 (plea agreement) at 2 (“The government further states that
Counts 1 through 8, and 10 of the Indictment filed March 2, 2000 will be
dismissed at the time of sentencing, however, these counts will be included in the
calculation of the Guideline range as relevant conduct.”). Thus, even if
defendant only pleaded guilty to using a communication facility to attempt to
possess the drugs, the relevant conduct for sentencing purposes included the
dismissed counts of conspiracy to possess with the intent to distribute and
conspiracy to introduce contraband into the prison. The court further held that
“the intent of the conspiracy to distribute the heroin within the prison is
attributable to each defendant.” Sentencing Tr. at 43. The court further found
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that the evidence indicated defendant’s awareness of the conspiracy and that
defendant had taken affirmative steps in furtherance of the conspiracy. Id.
at 43-44. Defendant does not challenge these findings.
The court further determined that “this was a jointly undertaken criminal
activity involving defendant and several other individuals to smuggle heroin into
the prison.” Id. at 44. The court further found that defendant had assisted in the
endeavor and “knew of this scheme and took affirmative steps to ensure heroin
was brought into the prison.” Id. The court concluded that even if defendant did
not distribute (or intend to distribute) the heroin, he remained “responsible for the
acts of others who are going to actually bring the drugs into the prison and
distribute them to the defendant and other inmates involved in this conspiracy.”
Id. at 45.
Even if defendant was not intending to distribute heroin within the prison,
he is responsible, under the principle of relevant conduct, for “all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken
criminal activity.” USSG § 1B1.3(a)(1)(B). The district court’s findings on
forseeability are findings of fact reversible for clear error. See United States v.
Tagore , 158 F.3d 1124, 1127 (10th Cir. 1998). We also “review the factual
findings supporting the application of a particular Sentencing Guideline provision
for clear error.” United States v. Lang , 81 F.3d 955, 968 (10th Cir. 1996).
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Having reviewed the sentencing transcript, including the FBI agent’s
testimony outlining the conspiracy and defendant’s involvement, we conclude that
the district court’s application of the special offense characteristic for an offense
having the objective of distributing a controlled substance within a prison is not
clearly erroneous.
AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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