                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                APR 8, 2010
                              No. 09-12917                      JOHN LEY
                          Non-Argument Calendar                   CLERK
                        ________________________

                    D. C. Docket No. 06-80171-CR-DTKH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JUAN C. GUTIERREZ,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                                (April 8, 2010)

Before DUBINA, Chief Judge, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Appellant Juan Carlos Gutierrez appeals his 216-month sentence for
conspiracy to possess cocaine with the intent to distribute. During sentencing, the

government established that the Varela Drug Ring—the conspiracy in which

Gutierrez was a member—routinely carried guns to protect against a home

invasion, and its operations included taking drugs from others by force.

Additionally, Gutierrez personally participated, in some form, in a drive-by

shooting and an attempted robbery against another drug dealer. Moreover, after

members of the Varela Drug Ring murdered Jose Escobedo, a cocaine supplier,

and his family, Gutierrez helped ransack the Escobedo home looking for money

and drugs, and attempted to conceal evidence. Based on these facts, the district

court applied a base offense level of 43, pursuant to U.S.S.G. § 2D1.1(d)(1)’s

cross-reference to the first-degree murder guideline (§ 2A1.1), for the Escobedo

murders.

      On appeal, Gutierrez argues that the district court erred in applying the

murder cross-reference guideline. Gutierrez asserts that, under the guidelines, the

evidence failed to demonstrate that he reasonably could have foreseen the

Escobedo murders, or that they were within the scope of the activity he agreed to

undertake as a member of the conspiracy.

      We review the district court’s application and interpretation of the

sentencing guidelines de novo, and its underlying factual findings for clear error.



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United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007). Under the clear error

standard, we will not disturb the district court’s findings “unless we are left with a

definite and firm conviction that a mistake has been committed.” United States v.

Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009), cert. denied, 130 S. Ct. 809 (2009)

(quoting United States v. Crawford, 487 F.3d 1174, 1177 (11th Cir. 2005)). We

may affirm on any basis supported by the record, even if not relied upon by the

district court. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008),

cert. denied, 129 S. Ct. 288 (2008).

      Under U.S.S.G. § 2D1.1, “[i]f a victim was killed under circumstances that

would constitute murder under 18 U.S.C. § 1111 had such killing taken place

within the territorial or maritime jurisdiction of the United States, [a sentencing

court should] apply § 2A1.1 (First Degree Murder).” U.S.S.G. § 2D1.1(d)(1)

(2008). First degree murder receives a base offense level of 43. U.S.S.G. § 2A1.1.

That offense level applies to both premeditated killings, and to felony murder such

as bank robbery. Id. comment. (nn.1-2).

      When attributing the actions of co-conspirators for sentencing

purposes—including the application of cross-references—the guidelines provide

for consideration, “in the case of a jointly undertaken criminal activity[,] . . . [of]

all reasonably foreseeable acts and omissions of others in furtherance of the jointly



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undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). The guidelines go on to

state that “[i]n order to determine the defendant’s accountability for the conduct of

others under subsection (a)(1)(B), the court must first determine . . . [] the scope of

the specific conduct and objectives embraced by the defendant’s agreement[]”. Id.

comment. (n.2). Furthermore, “conduct of others that was not in furtherance of the

criminal activity jointly undertaken by the defendant, or was not reasonably

foreseeable in connection with that criminal activity, is not relevant conduct.” Id.

      Reasonable foreseeability and conduct within the scope of the agreement are

two separate elements that the government must prove in order to hold a defendant

accountable for co-conspirator actions. United States v. Reese, 67 F.3d 902, 907-09

(11th Cir. 1995) (holding that the district court erred in attributing certain

quantities of cocaine to the defendants based only on their basic knowledge of the

organization).

      Although Gutierrez did not personally participate in the Escobedo murders,

and there was no evidence that he had direct knowledge the murders would occur,

the record demonstrates that he willingly associated himself with an organization

that he knew both carried guns and used guns on others. Furthermore, Gutierrez’s

actions after the Escobedo murders took place indicated his complicity in a

conspiracy whose acts were becoming increasingly violent. These actions indicate



                                            4
that the possibility that a murder—or murders—would occur in furtherance of the

Varela Drug Ring’s activities was something that was both reasonably foreseeable

to Gutierrez and within the scope of his participation in the conspiracy.

Accordingly, we hold that the district court did not err in applying the U.S.S.G.

§ 2D1.1(d)(1) cross-reference guideline against Gutierrez for the murder of the

Escobedo family, and we affirm Gutierrez’s sentence.

      AFFIRMED.




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