Sentencing
Drug quantity

It was error to base a defendant's drug quantity on the statement of an undisclosed police officer that the defendant intended to convert powder cocaine into crack.

"The government suggests that it was not required to demonstrate the existence of Hernandez's jointly undertaken criminal activity because he pleaded guilty to conspiracy. This proposition cannot be supported. In 1992 U.S.S.G. § 1B1.3 was amended specifically to disavow it. U.S.S.G. app. C, vol. I, amend. 439; United States v. Ortiz, 362 F.3d 1274, 1275, 1276-77 (9th Cir. 2004); United States v. Perulena, 146 F.3d 1332, 1337 n.11 (11th Cir. 1998); United States v. Strange, 102 F.3d 356, 360 n.6 (8th Cir. 1996); United States v. McDuffy, 90 F.3d 233, 235- 36 (7th Cir. 1996). Conspiracy liability, as defined in Pinkerton v. United States, 328 U.S. 640, 646-48 (1946), is generally much broader than jointly undertaken criminal activity under § 1B1.3. 'Anyone who agrees to join a criminal undertaking is a conspirator,' United States v. Almanza, 225 F.3d 845, 846 (7th Cir. 2000), but Hernandez is not trying to evade that label or undermine his guilty plea. The scope of relevant conduct is 'not necessarily the same as the scope of the entire conspiracy.' U.S.S.G. § 1B1.3, cmt. n.2. '[I]n order to be held accountable for the conduct of others, that conduct must have been both in furtherance of the jointly undertaken criminal activity and reasonably foreseeable in connection with that criminal activity.' United States v. Edwards, 115 F.3d 1322, 1327 (7th Cir. 1997); accord United States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003); United States v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997); United States v. Otis, 107 F.3d 487, 491 (7th Cir. 1997); McDuffy, 90 F.3d at 235. Foreseeability is a limitation on liability for conduct of others in furtherance of a jointly undertaken activity but is irrelevant when there is no jointly undertaken activity.

See McDuffy, 90 F.3d at 236; United States v. Dean, 59 F.3d 1479, 1495 (5th Cir. 1995); United States v. Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993). Hernandez's guilty plea establishes only that he conspired to distribute powder cocaine, and we see nothing in the plea agreement or in his admissions during the plea colloquy evidencing that he specifically undertook to possess and distribute any amount of crack, much less 14 to 15 kilograms."

Affirmed in part, and Vacated in part.

07-1399 & 07-1778 U.S. v. Soto-Piedra

Appeals from the United States District Court for the Southern District of Indiana, McKinney, J., Kanne, J.

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