TJOFLAT, Circuit Judge:
From May of 1988 through July of 1991, Jose Romeu operated a successful drug smuggling ring in south Florida. Colombian suppliers of marijuana and cocaine would fly bales of the drugs to an area near the Bahamas and drop them into the sea; boats operated by Romeu’s associates would then retrieve the drugs and transport them to the Florida Keys, where they would be off-loaded and distributed to drug dealers. Romeu’s drug smuggling enterprise came to an end in July of 1991, when a Southern District of Florida grand jury returned a seven-count indictment against Romeu and thirteen of his accomplices. Appellant Jesus Perulena was charged in two of the counts.
Perulena was charged in Counts I and IV of the indictment. Count I alleged that, from May of 1988 through May of 1989, Romeu, Perulena, and five others
conspired to possess with intent to distribute marijuana, and conspired to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count IV alleged that, in May of 1989, Romeu, Perule-na, and three others
possessed with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
By the time the case came to trial, five of the fourteen defendants were fugitives — Ro-meu, Pedro Gonzalez, Francisco Martinez-Estrada, Francisco Lopez, and John Doe a/k/a “Javau” — and seven had pled guilty.
Perulena and Domingo Gonzalez were the only indictees to stand trial.
Perulena and Gonzalez were tried together in a four-day jury trial. The proof of guilt was overwhelming; it included the testimony of five of the seven defendants who had pled guilty — Manuel Mesa, Geovanni Gomez, Carlos Socarras, Andres Pintado, and Richard Roe, a/k/a “El Canehareo” and “Hidle” — as well as several unindicted members of the Romeu organization. The jury found both Perulena and Gonzalez guilty as charged. On May 19,1992, the court sentenced Perule-na and Gonzalez under the guidelines promulgated by the United States Sentencing Commission to identical 292-month terms of imprisonment on each count,
to be served
concurrently, followed by five-year terms of supervised release on each count, also to be served concurrently. Perulena subsequently appealed, challenging both his convictions and his sentences.
Perulena’s challenges to his convictions are devoid of merit;
we therefore affirm his convictions without further comment.
See
Eleventh Circuit Rule 36-1. As for Perulena’s sentences, we conclude that the district court misapplied the United States Sentencing Guidelines in determining the quantity of drugs for which he should be held accountable, and therefore erred in arriving at the sentencing range for Perulena’s offenses.
Because the error was not harmless, we vacate Perulena’s sentences and remand his case for resentencing.
I.
According to the evidence adduced at trial, Perulena joined the Romeu marijuana conspiracy in the conspiracy’s final days, in May of 1989, for the purpose of assisting in the transportation of 7,000 pounds of marijuana from the drop site at sea to Islamorada in the Florida Keys, where it would be offloaded. The conspirators took two boats to transport the marijuana from the drop site. One boat broke down, however, and the conspirators were able to bring only 3,500 pounds of marijuana to shore. The PSR prepared by the district court’s probation office held Perulena accountable for all 7,000 pounds, approximately 3,175 kilograms, that the conspirators had planned to import, and another 11,794 kilograms of marijuana that the Romeu organization successfully smuggled into the United States in June of 1988, eleven months before Perulena joined the conspiracy. The probation office reasoned that Perulena could be held accountable for these amounts because “the substantive count[s] III and IV were part of the same course of conduct and common scheme charged in the conspiracy, count I, the base offense level includes the total amount of marijuana involved in the conspiracy, pursuant to Section lB1.3(a)(2).”
The PSR, therefore, recommended sentences based on attribution to Perulena of 14,969 kilograms of marijuana, which, it concluded, resulted in a base offense level of 36.
At the sentencing hearing, Perulena objected to the PSR’s recommendation that he be held accountable for the marijuana that the Romeu organization imported into the United States in June of 1988, prior to his involvement in the conspiracy. Perulena’s counsel noted that the Government had never proven — or even attempted to prove — that Perulena was involved in the June 1988 shipment, and argued that the 11,794 kilograms of marijuana imported by the Romeu organization on that date therefore should not be included in calculating his offense level.
In response to Perulena’s argument, the Government asserted that Perulena was, in fact, a major figure in the drug importation and distribution business, not merely a participant in one transaction with Romeu’s organization. To bolster this assertion, the Government offered the testimony of Randy
Willich of the Florida Marine Patrol, who testified that he had been monitoring Perule-na’s activities since the early 1980s. According to Willich, Perulena was heavily involved in the importation of illegal drugs into the United States, arranging at various times for the importation of shipments of both cocaine and marijuana. He testified that Perulena and Romeu worked together on occasion, when it was convenient, but that Perulena was essentially equal in stature to Romeu in the drug importation business. Notwithstanding that Willieh’s testimony suggested the existence of a number of separate conspiracies rather than a single conspiracy in which both Perulena and Romeu were involved, his only testimony even remotely suggesting that Perulena was involved with the June 1988 shipment was his claim that one person involved in that shipment, Tomas Cabrera, worked on occasion for Perulena. Willich then testified, however, that Cabrera worked for “anybody,” including Romeu, and he did not assert that Cabrera was working for Perulena in connection with the June 1988 shipment.
The district court nevertheless overruled Perulena’s objection to the inclusion of the June 1988 shipment in the calculation of his base offense level, concluding that one who has been found guilty of participating in a drug smuggling conspiracy is accountable for all of the drugs imported during the life of the conspiracy as a matter of law. The court stated:
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TJOFLAT, Circuit Judge:
From May of 1988 through July of 1991, Jose Romeu operated a successful drug smuggling ring in south Florida. Colombian suppliers of marijuana and cocaine would fly bales of the drugs to an area near the Bahamas and drop them into the sea; boats operated by Romeu’s associates would then retrieve the drugs and transport them to the Florida Keys, where they would be off-loaded and distributed to drug dealers. Romeu’s drug smuggling enterprise came to an end in July of 1991, when a Southern District of Florida grand jury returned a seven-count indictment against Romeu and thirteen of his accomplices. Appellant Jesus Perulena was charged in two of the counts.
Perulena was charged in Counts I and IV of the indictment. Count I alleged that, from May of 1988 through May of 1989, Romeu, Perulena, and five others
conspired to possess with intent to distribute marijuana, and conspired to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count IV alleged that, in May of 1989, Romeu, Perule-na, and three others
possessed with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
By the time the case came to trial, five of the fourteen defendants were fugitives — Ro-meu, Pedro Gonzalez, Francisco Martinez-Estrada, Francisco Lopez, and John Doe a/k/a “Javau” — and seven had pled guilty.
Perulena and Domingo Gonzalez were the only indictees to stand trial.
Perulena and Gonzalez were tried together in a four-day jury trial. The proof of guilt was overwhelming; it included the testimony of five of the seven defendants who had pled guilty — Manuel Mesa, Geovanni Gomez, Carlos Socarras, Andres Pintado, and Richard Roe, a/k/a “El Canehareo” and “Hidle” — as well as several unindicted members of the Romeu organization. The jury found both Perulena and Gonzalez guilty as charged. On May 19,1992, the court sentenced Perule-na and Gonzalez under the guidelines promulgated by the United States Sentencing Commission to identical 292-month terms of imprisonment on each count,
to be served
concurrently, followed by five-year terms of supervised release on each count, also to be served concurrently. Perulena subsequently appealed, challenging both his convictions and his sentences.
Perulena’s challenges to his convictions are devoid of merit;
we therefore affirm his convictions without further comment.
See
Eleventh Circuit Rule 36-1. As for Perulena’s sentences, we conclude that the district court misapplied the United States Sentencing Guidelines in determining the quantity of drugs for which he should be held accountable, and therefore erred in arriving at the sentencing range for Perulena’s offenses.
Because the error was not harmless, we vacate Perulena’s sentences and remand his case for resentencing.
I.
According to the evidence adduced at trial, Perulena joined the Romeu marijuana conspiracy in the conspiracy’s final days, in May of 1989, for the purpose of assisting in the transportation of 7,000 pounds of marijuana from the drop site at sea to Islamorada in the Florida Keys, where it would be offloaded. The conspirators took two boats to transport the marijuana from the drop site. One boat broke down, however, and the conspirators were able to bring only 3,500 pounds of marijuana to shore. The PSR prepared by the district court’s probation office held Perulena accountable for all 7,000 pounds, approximately 3,175 kilograms, that the conspirators had planned to import, and another 11,794 kilograms of marijuana that the Romeu organization successfully smuggled into the United States in June of 1988, eleven months before Perulena joined the conspiracy. The probation office reasoned that Perulena could be held accountable for these amounts because “the substantive count[s] III and IV were part of the same course of conduct and common scheme charged in the conspiracy, count I, the base offense level includes the total amount of marijuana involved in the conspiracy, pursuant to Section lB1.3(a)(2).”
The PSR, therefore, recommended sentences based on attribution to Perulena of 14,969 kilograms of marijuana, which, it concluded, resulted in a base offense level of 36.
At the sentencing hearing, Perulena objected to the PSR’s recommendation that he be held accountable for the marijuana that the Romeu organization imported into the United States in June of 1988, prior to his involvement in the conspiracy. Perulena’s counsel noted that the Government had never proven — or even attempted to prove — that Perulena was involved in the June 1988 shipment, and argued that the 11,794 kilograms of marijuana imported by the Romeu organization on that date therefore should not be included in calculating his offense level.
In response to Perulena’s argument, the Government asserted that Perulena was, in fact, a major figure in the drug importation and distribution business, not merely a participant in one transaction with Romeu’s organization. To bolster this assertion, the Government offered the testimony of Randy
Willich of the Florida Marine Patrol, who testified that he had been monitoring Perule-na’s activities since the early 1980s. According to Willich, Perulena was heavily involved in the importation of illegal drugs into the United States, arranging at various times for the importation of shipments of both cocaine and marijuana. He testified that Perulena and Romeu worked together on occasion, when it was convenient, but that Perulena was essentially equal in stature to Romeu in the drug importation business. Notwithstanding that Willieh’s testimony suggested the existence of a number of separate conspiracies rather than a single conspiracy in which both Perulena and Romeu were involved, his only testimony even remotely suggesting that Perulena was involved with the June 1988 shipment was his claim that one person involved in that shipment, Tomas Cabrera, worked on occasion for Perulena. Willich then testified, however, that Cabrera worked for “anybody,” including Romeu, and he did not assert that Cabrera was working for Perulena in connection with the June 1988 shipment.
The district court nevertheless overruled Perulena’s objection to the inclusion of the June 1988 shipment in the calculation of his base offense level, concluding that one who has been found guilty of participating in a drug smuggling conspiracy is accountable for all of the drugs imported during the life of the conspiracy as a matter of law. The court stated:
It seems to me that when one willfully becomes a member of that type of organization, that one therefore becomes responsible for the activities of the organization, not only the activities that occurred after the joining, the willful joining of the conspiracy, but those that may have taken place before, provided one willfully joins what he or she knows to be an organization dedicated to the importation of multi-ton quantities of marijuana and cocaine into the United States.
The court thus adopted the PSR’s recommendation that Perulena be held accountable for the approximately 14,969 kilograms of marijuana imported into the United States in June of 1988 and May of 1989, and sentenced Perulena at the low end of the guideline sentence range.
Perulena now contends that the district court erred in holding him accountable for the June 1988 importation because, under his reading of the sentencing guidelines, he could not be held accountable for the drugs smuggled by the Romeu organization before he joined it. Section lB1.3(a)(2) of the 1991 Sentencing Guidelines, which the probation office and the district court relied upon in deciding the quantity of marijuana for which Perulena should be held accountable, required that the court, in determining the base offense level in a case such as Perule-na’s, take into account the following:
solely with respect to offenses of a character for which [U.S.S.G.] § 3D1.2 (d) would require grouping of multiple counts,
all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction
[J
U.S.S.G. § lB1.3(a)(2) (1991) (emphasis added).
Standing alone, this provision would seem to dispose of Perulena’s argument and support the court’s conclusion that Perulena was responsible for the past acts of the Ro-meu conspiracy. Application Note 2, however, explains that the phrase “ ‘[s]uch acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction,’ as used in subsection (a)(2), refers to
acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable.”
U.S.S.G. § 1B1.3, comment, (n. 2) (1991) (emphasis added). No evidence
was presented by the Government that suggested that Perulena committed or aided and abetted the July 1988 offense, leaving only the question of whether the July 1988 shipment was an act or omission “for which the defendant would be otherwise accountable.”
The language in Application Note 2 tracks the language in the subsection that precedes (a)(2) — subsection (a)(1). Subsection (a)(1) provides that, in determining Perulena’s base offense level, the district court was required to take into account the following:
all
acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable,
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense[.]
U.S.S.G. § lB1.3(a)(l) (1991) (emphasis added). Finally, in Application Note 1, the Guidelines Manual explains that
[e]onduet
“for which the defendant would be otherwise accountable,”
as used in subsection (a)(1), includes conduct that the defendant counseled, commanded, induced, procured, or willfully caused.
(Cf
18 U.S.C. § 2.) In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant “would be otherwise accountable” also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.
Because a count may
be broadly worded and
include the conduct of many participants over a substantial period of time, the scope of the jointly-undertaken criminal activity, and hence relevant conduct, is not necessarily the same for every participant.
Where it is established that the conduct was neither within the scope of the defendant’s agreement, nor was reasonably foreseeable in connection with the criminal activity the defendant agreed to jointly undertake, such conduct is not included in establishing the defendant’s offense level under this guideline.
U.S.S.G. § 1B1.3, comment, (n. 1) (1991) (emphasis added). Application Note 1 also includes illustrations of conduct for which the defendant should be held accountable. Illustration (e) describes one particularly relevant situation:
Defendants H and I are engaged in an ongoing marihuana importation conspiracy in which Defendant J was hired only to help off-load a single shipment. Defendants H, I, and J are included in a single count charging conspiracy to import marihuana. For the purposes' of determining the offense level under this guideline, Defendant J is accountable ‘ for the entire single shipment of marihuana he conspired to help import and any acts or omissions in furtherance of the importation that were reasonably foreseeable. He is not accountable for prior or subsequent shipments of marihuana imported by Defendants H or I if those acts were beyond the scope of, and not reasonably foreseeable in connection with, the criminal activity he agreed to jointly undertake with Defendants H and I (¿a, the importation of the single shipment of marihuana).
U.S.S.G. § 1B1.3, comment, (n. 1, illus. e) (1991).
Reading these application notes and the above illustration as a whole, we conclude that Perulena could not be held accountable for the June 1988 importation. That importation is not conduct for which Perulena may be “otherwise accountable,” because it occurred almost a year before he joined the Romeu conspiracy for the May 1989 shipment. In the words of illustration (e) above, that importation was “beyond the scope of ... the criminal activity he agreed
to jointly undertake with” Romeu and his accomplices.
We therefore vacate Perule-na’s sentences and remand the case for further proceedings. On remand, the district
court shall resentence Perulena on the record that was before the court when it sentenced him in the first instance.
II.
For the reasons stated above, we vacate Perulena’s sentences and remand his case to the district court for further proceedings not inconsistent with this opinion.
VACATED and REMANDED, with instructions.