No. 13-1007
United States v. Baquedano

Carillo, a cocaine supplier in Colorado to whom Amaya was hopelessly in debt. Sierra-Rodriguez

did, in fact, travel to Colorado, obtain a pistol from yet another co-defendant, and kill Lucero-

Carillo. At trial, Baquedano testified in his own defense that he believed Sierra-Rodriguez was a

drug courier—not a hit man—and that he thought Sierra-Rodriguez was merely going to pick up

cocaine for Amaya. Although the jury convicted Amaya of drug trafficking and drug-related murder

charges, Baquedano was acquitted. Based on the underlying facts in that case and Baquedano’s

testimony in that trial, the government brought an information charging Baquedano with conspiracy

to possess with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and

846.


       On August 24, 2012, Baquedano pleaded guilty to this information.               In sentencing

Baquedano, the district court applied the cross-reference section of the controlled substance

guidelines, USSG § 2D1.1(d)(1), to find that Baquedano’s offense involved a killing that would

constitute a first-degree murder. Although Baquedano’s plea agreement stated that the court would

find all sentencing factors by a preponderance of the evidence, in his sentencing hearing Baquedano

argued that the standard should be, at minimum, clear and convincing evidence. The district court

acknowledged that precedent commands a preponderance standard but nonetheless found that even

clear and convincing evidence existed. Adopting the Presentence Report, the district court imposed

a seventeen-level increase from a base offense level of 26 to set Baquedano’s offense level at 43 and

then awarded a three-level downward adjustment for acceptance of responsibility for a final total

offense level of 40. Based on this level and his criminal history category, Baquedano’s guideline



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No. 13-1007
United States v. Baquedano

range could have been 292-365 months, but the statutory maximum for possession with intent to

distribute cocaine is 240 months (twenty years). The district court sentenced Baquedano to 228

months (nineteen years) of imprisonment.


       On appeal Baquedano argues that enhancing the presumptive range of an offender’s sentence

by considering acquitted conduct as relevant conduct—even if the punishment is within the

maximum permitted by the offense—violates the Sixth Amendment by disregarding the jury’s

decision. Our decision in United States v. White, 551 F.3d 381 (6th Cir. 2008) (en banc) states

otherwise. In White, we held that a district court does not violate the Sixth Amendment when it

considers acquitted conduct to determine an advisory guidelines range so long as the sentence

imposed does not exceed the maximum authorized by the statute for the offense of conviction. Id.

at 384-85. White is both directly on point and binding. Consequently, Baquedano’s appeal fails.


       Although Baquedano purports to acknowledge White’s holding, the main thrust of his brief

is that White was incorrectly decided. White binds us absent intervening Supreme Court precedent

or another decision by this Court sitting en banc. See, e.g., Nat’l Union Fire Ins. v. VP Bldgs., Inc.,

606 F.3d 835, 839-40 (6th Cir. 2010); Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir. 2001);

United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996).


       Accordingly, we AFFIRM the district court’s imposition of Baquedano’s 228-month

sentence.




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