                                                                     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      This order and judgment is not binding precedent, except under the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


                                              -2-
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.

                                            -3-
              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


                                           -4-
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


                                            -5-
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


                                            -6-
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).


                                              -7-
      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




                                          -8-
