United States Court of Appeals
For the First Circuit
No. 01-1773
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL H. COLON-SOLIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Smith,* District Judge.
Maria H. Sandoval on brief for appellant.
H. S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Chief, Criminal Division, and Nelson Pérez-Sosa and Thomas F.
Klumper, Assistant United States Attorneys, on brief for appellee.
January 8, 2004
*Of the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Miguel H.
Colón-Solís (Colón) appeals from a sentence imposed after a guilty
plea to a single count of conspiring to distribute a controlled
substance (cocaine). See 21 U.S.C. §§ 841(a)(1), 846. The
appellant's principal argument is that the district court erred in
imposing a ten-year mandatory minimum sentence, id. § 841(b)(1)(A),
without making a specific finding that he — rather than the charged
conspiracy — was accountable for a particular quantity of drugs.
This argument presents a question of first impression in
this circuit. We phrase the question as follows: When a defendant
admits that the conspiracy to which he belonged handled drug
quantities sufficient to trigger a statutory mandatory minimum
sentence, does he automatically become subject to that mandatory
minimum without a further finding that the triggering amounts were
attributable to, or foreseeable by, him? We join several of our
sister circuits in answering this question in the negative.
Accordingly, we vacate the appellant's sentence and remand for
resentencing.
Because the appellant's sentence followed an admission of
guilt, we glean the pertinent facts from the change-of-plea
colloquy, the presentence investigation report (PSI Report), and
the transcript of the disposition hearing. See United States v.
Dietz, 950 F.2d 50, 51 (1st Cir. 1991). The government charged the
appellant, along with a number of others, with conspiring to
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distribute narcotics as a member of the so-called La Cabra drug
ring. See United States v. Pérez-Ruiz, ___ F.3d ___, ___ (1st Cir.
2003) [No. 02-1466, slip op. at 3] (describing the La Cabra drug
ring). On the eve of trial, he entered a straight guilty plea. In
doing so, the appellant admitted that the conspiracy had handled
more than five kilograms of cocaine (the triggering amount for a
ten-year mandatory minimum sentence under 21 U.S.C. §
841(b)(1)(A)). The change-of-plea proceeding left open the
question whether the appellant himself was responsible for a lesser
drug quantity.
The appellant was one of several codefendants who
simultaneously changed their pleas. Perhaps because of this
circumstance, the proffer made by the government at the appellant's
change-of-plea hearing was conspicuous for its scantiness. The
prosecutor stated only that the appellant had served as a runner
"on occasions" for Miguel O'Conner-Colón (La Cabra) and, as such,
had (i) assisted in the packaging and processing of narcotics, and
(ii) delivered narcotics to drug points. The prosecutor did not
allude in any way to specific drug weights.
The district court convened the disposition hearing on
April 12, 2001. The appellant argued that he should not be held
responsible for five kilograms or more of cocaine (and that,
therefore, the mandatory minimum was irrelevant). The court
brushed aside this argument, noted that the indictment charged
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distribution of five kilograms or more of cocaine, and found that
the appellant had admitted to this "basic drug amount" at the
change-of-plea hearing. On that foundation — and that foundation
alone — the court found the appellant responsible for five
kilograms or more of cocaine. Relying on this finding, the court
invoked 21 U.S.C. § 841(b)(1)(A) and imposed a ten-year
incarcerative sentence. This appeal followed.
We review de novo properly preserved challenges to a
sentencing court's conclusions of law. United States v. St. Cyr,
977 F.2d 698, 701 (1st Cir. 1992). The appellant properly
preserved his claim that the district court erred in failing to
make an individualized finding as to the drug quantities
attributable to, or foreseeable by, him. See Pérez-Ruiz, ___ F.3d
at ___ [slip op. at 22-23]. Finding the record barren — it
contains no evidence of any particular drug quantities attributable
to, or foreseeable by, the appellant; no specific finding as to any
drug quantity attributable to, or foreseeable by, him;1 and no
relevant stipulations — we validate the appellant's claim of error.
We explain briefly.
1
At the request of defense counsel, the district court reduced
the appellant's base offense level to take account of the fact that
heroin — a substance handled by the La Cabra drug ring — was not
distributed in the La Ferran ward (where the appellant had worked).
This reduction suggests that the court understood the concept of
individual accountability, but it does not compensate for the lack
of specific findings vis-à-vis the quantities of cocaine
attributable to, or foreseeable by, the appellant.
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The sentencing court appears to have applied a per se
rule, automatically attributing to the appellant the full amount of
the drugs charged in the indictment and attributed to the
conspiracy as a whole. This was error.
To be sure, we derive the applicable statutory maximum in
a drug conspiracy case from a conspiracy-wide perspective. Id. at
___ [slip op. at 31]; Derman v. United States, 298 F.3d 34, 43 (1st
Cir.), cert. denied, 537 U.S. 1048 (2002). Nevertheless, we
consistently have required a defendant-specific determination of
drug quantity as a benchmark for individualized sentencing under
the guidelines. See, e.g., United States v. Bradley, 917 F.2d 601,
604 (1st Cir. 1990); USSG §1B1.3. Thus, when a district court
determines drug quantity for the purpose of sentencing a defendant
convicted of participating in a drug-trafficking conspiracy, the
court is required to make an individualized finding as to drug
amounts attributable to, or foreseeable by, that defendant.2 In
the absence of such an individualized finding, the drug quantity
attributable to the conspiracy as a whole cannot automatically be
shifted to the defendant. See United States v. Valencia-Lucena,
2
This does not mean, of course, that the defendant must have
personally handled the drugs for which he is held responsible. A
defendant also may be held responsible for drugs involved in his
"relevant conduct." USSG §1B1.3. In a proper case, "[s]uch
conduct may include a defendant's own acts or the acts of others."
United States v. Laboy, ___ F.3d ___, ___ (1st Cir. 2003) [No. 02-
1865, slip op. at 8].
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988 F.2d 228, 234-35 (1st Cir. 1993); United States v. Thompson,
944 F.2d 1331, 1343-44 (7th Cir. 1991).
A mandatory minimum operates in much the same way. It is
made potentially available by a finding that the conspiracy as a
whole handled (or at least contemplated) the necessary triggering
amount. But to apply the mandatory minimum to a particular
coconspirator, the sentencing court must make a specific finding,
supportable by a preponderance of the evidence, ascribing the
triggering amount to that coconspirator. See United States v.
Swiney, 203 F.3d 397, 401-06 (6th Cir. 2000); United States v.
Becerra, 992 F.2d 960, 967 n.2 (9th Cir. 1993); United States v.
Gilliam, 987 F.2d 1009, 1013-14 (4th Cir. 1993).
That principle is dispositive in this case. Where, as
here, a defendant admits that the conspiracy to which he belonged
handled drug quantities sufficient to trigger a mandatory minimum
sentence, he becomes potentially eligible for the mandatory minimum
— but that provision cannot be applied in his case without an
individualized finding that the triggering amount was attributable
to, or foreseeable by, him.
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We need go no further.3 Given the lack of any
individualized findings of drug quantity, we must vacate the
appellant's sentence and remand to the district court for
resentencing. We take no view as to what sentence is appropriate;
we merely hold that any sentence imposed must be accompanied by
particularized findings as to the drug amounts attributable to, or
foreseeable by, the appellant.
The conviction is affirmed, the sentence is vacated, and
the case is remanded for resentencing.
3
Given our disposition of the appellant's principal claim of
error, we need not reach his challenge to the district court's
application of the doctrine laid down in Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). We note, however, that substantially the
same challenge appears to have been considered and rejected in
earlier decisions. See, e.g., United States v. Collazo-Aponte, 281
F.3d 320, 325 (1st Cir.) (collecting cases), cert. denied, 537 U.S.
869 (2002).
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