                                                   NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     _____________

                         No. 13-2754
                        _____________

               UNITED STATES OF AMERICA

                               v.

                     LUCIEN WILLIAMS,
                                    Appellant
                       ____________

     On Appeal from the District Court of the Virgin Islands
                     (No. 12-cr-00017-002)
         District Judge: Honorable Raymond L. Finch
                         ____________

        Submitted Pursuant to Third Circuit LAR 34.1(a)
                        May 14, 2014
                        ____________


Before: RENDELL, FUENTES, GREENAWAY, JR., Circuit Judges

                    (Filed: August 15, 2014 )

                         ____________

                  OPINION OF THE COURT
                       ____________




                               1
FUENTES, Circuit Judge:

       After Lucien Williams pleaded guilty to one count of conspiracy to possess with

intent to distribute marijuana, the District Court imposed a sentence of 46 months’

incarceration. On appeal, Williams raises three issues regarding his sentencing. As none

of these challenges have merit, we will affirm Williams’s sentence.

                                             I.

       Williams was involved with a drug trafficking organization that conspired to mail

controlled substances from Texas to St. Croix, Virgin Islands. According to a report by

Inspector Halsell of the United States Postal Inspection Service, several express mail

parcels containing marijuana and bearing fictitious return addresses were sent to either

Williams or his wife.1 Williams described his involvement in the conspiracy in an

interview with Halsell. Prior to a mailing, a coconspirator would inform Williams when

and where the package would arrive, and he earned about $500 for each box he received.

Williams further admitted that he knew the parcels contained marijuana and that he had

opened several of them.

       The parties executed a plea agreement and Williams pleaded guilty to the sole

charge in the information: conspiracy to possess with intent to distribute less than 50

kilograms of marijuana, in violation of 21 U.S.C. § 846, and 21 U.S.C. §§ 841(a)(1) and

(b)(1)(D), which carries a statutory sentence of not more than five years of incarceration.


1
 Williams maintains that although his wife may have accepted packages at his direction,
she knew nothing of their contents and he alone is responsible for the controlled
substances.
                                             2
       Later that year the Office of Probation issued a Presentence Investigation Report

concluding that 276.69 kilograms of marijuana were attributable to Williams as relevant

conduct under the Guidelines. In turn, Williams filed a sentencing memorandum

objecting to that amount, arguing that he can only be held responsible for the weight of

the parcels specifically mentioned in the plea agreement. Following an evidentiary

hearing, the District Court found that 239.84 kilograms was the correct attribution.

Accordingly, the District Court applied a base offense level of 23 (26 minus three points

for acceptance of responsibility) and sentenced Williams to 46 months’ incarceration (the

low end of the Guidelines range of 46 months to 57 months), three years of supervised

release, and a $100 special assessment.2

                                              II.

                                             A.

       Williams first argues that the District Court erred by failing to determine (1) the

point at which he entered the conspiracy, and (2) what offense conduct was foreseeable to

him. The first part of the argument is without merit simply because the District Court did

in fact establish the time frame in question in a memorandum opinion before sentencing:

       At the evidentiary hearing, the United States represented that the 2008 through
       November 4, 2009 timeframe listed in the plea agreement was a typographical
       error, and the conduct properly attributable to Williams is his receipt of parcels
       from November 7, 2009 through December 13, 2010, as detailed in Inspector
       Halsell’s report summarizing the Express Mail receipts for those shipments. (Dkt.

2
 “We review a district court’s legal conclusions regarding the Guidelines de novo, its
application of the Guidelines to the facts for abuse of discretion, and its factual findings
for clear error.” United States v. Blackmon, 557 F.3d 113, 118 (3d Cir. 2009) (citations
omitted).
                                              3
       No. 175-1). The Court’s drug quantity finding is based on the shipments sent to
       Williams during this 13-month period and outlined in Inspector Halsell’s report.

United States v. Williams, Criminal No. 2012-017, 2013 WL 2279382, at *2 n.2 (D.V.I.

May 22, 2013).

       Williams next argues that the District Court erred by failing to determine the

foreseeability of the offense conduct. The Guidelines provide that the base offense level

will be determined on the basis of:

       (1)    (A) all acts and omissions committed, aided, abetted, counseled,
              commanded, induced, procured, or willfully caused by the defendant; and
              (B) in the case of a jointly undertaken criminal activity . . . 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, in preparation
       for that offense, or in the course of attempting to avoid detection or responsibility
       for that offense;

U.S.S.G. § 1B1.3(a)(1) (emphasis added). As clarified in the commentary, the

foreseeability requirement “applies only in respect to the conduct (i.e., acts and

omissions) of others under subsection (a)(1)(B)” and not to “conduct that the defendant

personally undertakes, aids, abets, counsels, commands, induces, procures or willfully

causes” which would fall under subsection (a)(1)(A). U.S.S.G. § 1B1.3 cmt. n. 2.

       Here, Williams’s offense of conviction is his involvement in a conspiracy that

occurred between November 7, 2009 and December 13, 2010. Of the 47 parcels

considered by the District Court, 45 were received by Williams or his wife (acting as

Williams’s proxy) during that time frame and are therefore relevant conduct for




                                              4
sentencing under subsection (a)(1)(A). As such, foreseeability was not a requisite element

with regard to those 45 acts.

       The two remaining parcels arrived after he had been arrested (December 2010)

and his involvement in the conspiracy had ended. While the District Court may have

erred in failing to consider foreseeability with regard to those last packages, we need not

reach the issue because any error would have been harmless. The two packages at issue

were not significant enough to make a difference in the base offense level calculation.

Under the Guidelines, a quantity of marijuana that is “[a]t least 100 KG but less than 400

KG” corresponds to a base offense level of 26. U.S.S.G. § 2D1.1(c)(7). If the District

Court had excluded the two packages (weighing approximately 4 kilograms each) the

total amount of marijuana attributed to Williams would drop from 239.84 kilograms to

231.68 kilograms—a quantity still well within the level 26 range. Id.

                                              B.

       Williams’s second argument is that the government breached the plea agreement

by asserting facts not specifically mentioned in the terms of the agreement. Though

Williams failed to raise this issue at sentencing, he argues in his reply brief that this

Court’s review is de novo because the alleged breach was by the prosecution. United

States v. Rivera, 357 F.3d 290, 294 (3d Cir. 2004). This standard is no longer good law

after the Supreme Court’s decision in Puckett v. United States. 556 U.S. 129, 134 (2009).

Now, if the defendant fails to object below, our review of whether the government

breached a plea agreement is for plain error. United States v. Dahmen, 675 F.3d 244, 248

(3d Cir. 2012).

                                               5
       To determine whether a plea agreement was breached, we first analyze the facts,

including the terms of the plea agreement and the conduct of the parties. United States v.

Hayes, 946 F.2d 230, 233 (3d Cir. 1991). We begin by considering “what was reasonably

understood by the defendant” when he entered his plea. United States v. Gilchrist, 130

F.3d 1131, 1134 (3d Cir. 1997) (alterations omitted). Moreover, “cases of disappointed

but unfounded expectations must be carefully distinguished from those in which the

defendant’s expectations as to his sentence are predicated upon promises by the

Government or statements from the court.” United States v. Badaracco, 954 F.2d 928,

939 (3d Cir. 1992) (quoting United States v. Crusco, 536 F.2d 21, 24 (3d Cir. 1976)). In

the latter case, “courts are compelled to scrutinize closely the promise made by the

government in order to determine whether it has been performed.” Hayes, 946 F.2d at

233. Absent a promise, there can be no breach.

       Williams contends that the plea agreement contained a promise by the government

that it would not argue any overt acts except those identified in the plea agreement. In the

section at issue, the plea agreement listed facts that the government could have proven if

the case had gone to trial. It stated that Williams participated in the conspiracy “[f]rom on

or about 2008 to on or about November 4, 2009” and then described Williams’s receipt of

one parcel containing marijuana on June 17, 2010, and two other parcels containing

marijuana on July 21, 2010. J.A. at 24-26. Williams now argues that he understood the

representations in that section to be inclusive of all overt acts for which he would be held

responsible, that any omissions were intentional, and further, that he reasonably relied on

that understanding when he submitted his guilty plea.

                                             6
       We conclude that the language of the agreement contains no such promise and that

Williams could not have reasonably understood the terms of the plea agreement to

convey such a promise. The plea agreement lists overt acts but does not contain any

limiting language or a promise by the government to refrain from presenting additional

acts for sentencing. On the contrary, it was stated later in the plea agreement that the

government “believes” that Williams “conspired to distribute at least 307 kilograms of

marijuana,” “that the base offense level is 26,” and that, assuming the court accepted the

agreed-upon credits for acceptance of responsibility, the “Sentencing Guidelines range is

46-57 (Level 23) months imprisonment.” J.A. at 27-28. These beliefs would not have

been expressed in the agreement if, as Williams claims, the parties had already bargained

to ignore all acts other than his receipt of the three packages mentioned in the plea

agreement. The three packages combined weighed only 13 kilograms, which would have

generated a Guidelines range of 15-21 months. As such, we reject Williams’s implication

of a promise and conclude that the government’s conduct did not violate the terms of the

plea agreement.

       Williams also argues that the District Court’s resolution of the typographical error

in the plea agreement (correcting the time frame of Williams’s involvement in the

conspiracy from “2008 through November 7, 2009” to “November 7, 2009 through

December 13, 2010”) caused the plea agreement to be breached. This argument is

without merit because Williams could not have reasonably believed that the plea

agreement time frame was correct. Immediately following the time frame of the

conspiracy (“[f]rom on or about 2008 to on or about November 4, 2009”), the plea

                                              7
agreement details three overt acts in furtherance of that conspiracy that occurred outside

of the preceding time frame (one on June 17, 2010 and two on June 21, 2010). J.A. at 24-

26. Thus, both arguments for breach of the plea agreement fail.

                                             C.

       Third, Williams argues that the District Court erroneously calculated the quantity

of marijuana attributable to Williams by (1) including packages that Williams did not

specifically admit to receiving in the plea agreement and for which there was no jury

finding, and by (2) estimating the weight of the marijuana in those packages. Both

complaints are without merit.

       Williams argues, as before, that he cannot be held accountable for any acts not

specifically admitted to in the plea agreement. Even if he is correct in limiting his offense

of conviction to his receipt of the three packages described in the plea agreement, the

District Court correctly considered additional acts as “relevant conduct” under

§ 1B1.3(a)(2) of the Guidelines, which allows the sentencing court to consider acts or

omissions “that were part of the same course of conduct or common scheme or plan as

the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). We explained in Blackmon:

       Application Note 9 of § 1B1.3 describes what comprises a “common scheme or
       plan” or the “same course of conduct” for relevant conduct. Subpart (A) describes
       a “common scheme or plan” as being “substantially connected” by at least one
       common factor, including common accomplices, common purpose, or similar
       modus operandi. Subpart (B) describes the “same course of conduct” as
       “sufficiently connected or related to each other,” and involves factors such as the
       degree of similarity in offenses, the regularity or number or repetitions, and the
       time interval between offenses.

557 F.3d at 123-24 (citations omitted).


                                              8
       In Blackmon, we affirmed the district court’s sentence and decided that the

defendant’s involvement in a cocaine conspiracy and his offenses of conviction (money

laundering and cocaine distribution) shared a common scheme or plan. Id. at 124. Despite

a five-month gap between the two occurrences, we found that they shared, among other

things, the same pattern of shipments, the same intended customer, the same accomplices

and the same geographic scope. Id. This similar modus operandi was sufficient to

establish that the cocaine conspiracy was relevant conduct under the Guidelines. Id.

       Similarly, in the instant case the 44 parcels not specifically mentioned in the plea

agreement are certainly relevant conduct as contemplated by § 1B1.3. The facts

ascertained from the postal inspector’s reports, along with Williams’s own admissions,

provide ample support for the conclusion that these acts were part of the same course of

conduct and common scheme or plan as Williams’s offense of conviction. Like the three

parcels in the plea agreement, all 44 parcels were mailed from Texas (Arlington city area)

to either Williams or his wife. Also, 41 of the 44 parcels were mailed to the same address

as the three, and 9 of the 44 had the same fictitious return address names as two of the

plea agreement parcels. Viewed in light of Williams’s admissions—that he received drug

packages sent from Texas that he knew to contain marijuana—these facts provide a

reasonable basis for the District Court’s inclusion of the 44 packages as relevant conduct

under § 1B1.3.

       Notwithstanding, Williams insists that without either an admission of guilt or a

jury finding on each quantity of marijuana attributed to him, the District Court cannot

consider the 44 packages not mentioned in the plea agreement without violating his Sixth

                                             9
Amendment rights. However, after the Supreme Court decided United States v. Booker,

543 U.S. 220 (2005), the Guidelines are merely advisory, which means that “[t]he

maximum legislatively authorized punishment to which the defendant is exposed is no

longer the maximum prescribed by the Guidelines; instead, it is the maximum prescribed

by the United States Code. Therefore, findings of fact relevant to the Guidelines need not

be submitted to a jury.” United States v. Grier, 475 F.3d 556, 564 (3d Cir. 2007) (internal

citation omitted).

       Here, the plea agreement identified the offense of conviction, which carries a

statutory maximum sentence of 5 years. Williams both acknowledged that his lawyer

advised him of the 5-year maximum sentence, and confirmed his understanding in his

plea application. As Williams’s sentence (46 months) did not exceed what was authorized

by his pleaded offense, there was no error in the District Court’s method of fact-finding

relevant to the Guidelines calculations.

       Williams also takes issue with the manner in which the District Court estimated

the total weight of the marijuana attributed to him. Following the evidentiary hearing, the

District Court found that 47 parcels weighing 669.33 pounds were attributable to

Williams as relevant conduct under the Guidelines. To properly account for the

packaging in its weight calculations, the District Court assumed that the ratio of

packaging to marijuana in each of the packages was the same as the intercepted June 14,

2010 package: 79 percent.3 After subtracting the estimated packaging weight, the court


3
  As mentioned in the plea agreement, this package was intercepted and opened by postal
inspectors who verified its contents. The other two intercepted packages were not opened,
                                             10
concluded that the parcels contained a total of 528.77 pounds (239.84 kilograms) of

marijuana.

       In calculating the quantities of drugs for sentencing drug offenses, we allow for

“some degree of estimation” so long as the calculation is not “based on mere

speculation.” United States v. Collado, 975 F.2d 985, 998 (3d Cir. 1992). We further

specify:

       The government bears the burden of proving the weight of the drugs involved in
       an offense by a preponderance of the evidence. When a defendant “challenges a
       drug quantity estimate based on an extrapolation from a test sample, the
       government must show, and the court must find, that there is an adequate basis in
       fact for the extrapolation and that the quantity was determined in a manner
       consistent with accepted standards of reliability.” This does not, however, require
       the government to adduce any sort of statistical evidence; rather, “reasonable
       reliability is the touchstone of the determination.”

United States v. Self, 681 F.3d 190, 201-02 (3d Cir. 2012) (citations omitted) (quoting

United States v. McCutchen, 992 F.2d 22, 25-26 (3d Cir. 1993)). The instant case is one

in which the District Court made a reasonable assumption based on the ratio of marijuana

to packaging in a test sample, and used it to extrapolate the marijuana content of the other

packages. In its calculations, the District Court was careful to avoid any improper

attribution, rounding each figure down to the nearest hundredth. As such, we find a

reasonable basis for the District Court’s calculation.

                                             III.

       For the foregoing reasons, we will affirm Williams’s sentence.




but were determined to contain a controlled substance after inspectors observed the
reaction of a narcotics dog.
                                             11
