[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12663 May 31, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-20934-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO RAFAEL SANCHEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 31, 2007)
Before CARNES and WILSON, and STAGG,* District Judge.
PER CURIAM:
*
Honorable Tom Stagg, United States District Judge for the Western District of
Louisiana, sitting by designation.
After pleading guilty to one count of conspiring to possess with intent to
distribute 5 or more grams of cocaine base and 500 or more grams of cocaine
powder, Alejandro Rafael Sanchez was sentenced to 70 months imprisonment. He
raises two issues on this appeal, one of which the government concedes.
The government acknowledges, as it should, that the district court
committed plain error in sentencing Sanchez based on an erroneous pre-sentence
investigation report that transposed the quantity of drugs for which Sanchez was
responsible with the quantity of drugs attributed to Roberto Perez-Pupo, another
drug dealer. For that reason, we must vacate Sanchez’s sentence and remand the
case to the district court for further proceedings.
The second issue Sanchez raises involves his contention that his rights
under U.S.S.G. § 1B1.8 were violated. This contention is based on his assertion
that the Miami Dade Police Department officers who arrested him promised him
that if he cooperated any further evidence that they discovered would not be used
against him. Other drugs were discovered as a result of Sanchez’s cooperation and
he argues that those drugs cannot be considered in calculating his base offense
level. As a matter of fact, those other drugs were not actually considered in
determining Sanchez’s base offense level because, as we have explained in the
preceding paragraph, the district court erroneously based his sentence on the drugs
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attributable to another dealer. That is an error which will be corrected on remand.
The § 1B1.8 issue may well come up again in the re-sentencing on remand,
but it is not actually before us now because the only sentence that we do have
before us was not actually affected by any asserted error involving that guidelines
provision. The error in transposing the drug quantities prevented § 1B1.8. from
affecting the sentence that was actually imposed on Sanchez.
We do, however, take this opportunity to direct the district court to make
findings concerning what, if anything, the police officers said to Sanchez about
whether any drugs found as a result of his cooperation would not be considered
against him at sentencing. Sanchez maintains that statements of that nature were
made, and the district court assumed that they were and rejected his argument,
anyway. If the issue is going to come back to us in an appeal from the re-
sentencing, as it may, we would prefer to decide it based on facts instead of
assumptions.
VACATED and REMANDED.**
**
This case was originally scheduled for oral argument, but it was decided on the briefs
and record alone pursuant to 11th Cir. R. 34-3(f).
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