     Case: 18-10411      Document: 00514875381         Page: 1    Date Filed: 03/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-10411                        United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                            March 15, 2019
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
              Plaintiff–Appellee,                                                Clerk


v.

ENCARNACION HURTADO-CRUZ, also known as Pancho,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-194-2


Before WIENER, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Encarnacion Hurtado-Cruz appeals his sentence for conspiracy to
possess with intent to distribute methamphetamine, arguing that the district
court erred when it imposed two criminal history points based on its conclusion
that he committed the offense while subject to supervised release. Having
found no evidence in the record to support the district court’s finding of fact in
this regard, we vacate the sentence and remand for further proceedings.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        I
      The United States charged Hurtado-Cruz and Efrain Rangel Arias with
conspiracy to possess with intent to distribute methamphetamine.             The
indictment alleged in Count I that “[b]eginning in or before September 2014,
and continuing until in or around August 2017,” Hurtado-Cruz, Arias and
others agreed and conspired to engage in the drug trafficking offense.
Hurtado-Cruz pleaded guilty to that Count without the benefit of a plea
agreement. Hurtado-Cruz initially submitted a Factual Resume that included
the following stipulated facts:
      Since at least early 2015, Efrain Rangel Arias has been receiving
      large amounts of methamphetamine from a Mexico-based source
      of supply.
      Encarnacion Hurtado-Cruz, Efrain Arias’s cousin, also distributed
      methamphetamine for Arias at Arias’s direction. . . . .
      In this manner, Efrain Rangel Arias and Encarnacion Hurtado-
      Cruz conspired with each other and others to possess with intent
      to distribute . . . Methamphetamine, a Schedule II controlled
      substance.
However, at re-arraignment, defense counsel consulted with the prosecutor,
and they agreed to change “2015” to “2016.” They crossed out “2015” and
inserted in handwriting “2016.” The district court then engaged in a colloquy
with Hurtado-Cruz, confirming that this change had been made at the
defendant’s request and that “[w]ith that change, are the facts that are stated
in the stipulated facts as you heard it read, are those true?” Hurtado-Cruz
responded, “Yes, sir.”
      A probation officer submitted a Pre-Sentence Report (PSR) containing
information obtained as a result of her independent investigation. The PSR,
which refers to Arias as “Morfin-Arias,” states, “[b]eginning in at least early
2016, Morfin-Arias received large amounts of methamphetamine from a source
of supply based in Mexico.        Hurtado-Cruz is Morfin-Arias’s cousin, and

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                                 No. 18-10411
distributed methamphetamine to customers at the direction of Morfin-Arias.”
The PSR includes information about specific drug transactions involving
Hurtado-Cruz and a confidential FBI source, all of which occurred after
February 2017.    The first transaction detailed in the PSR that involved
Hurtado-Cruz, Arias, and methamphetamine occurred on April 27, 2017.
      The probation officer determined that Hurtado-Cruz accrued nine
criminal history points as a result of his previous criminal convictions. The
probation officer added two more criminal history points pursuant to United
States Sentencing Guideline § 4A1.1(d) because Hurtado-Cruz “committed the
instant offense while under a criminal justice sentence of supervised release.”
Hurtado-Cruz’s relevant term of supervised release began on February 18,
2015, and ended on February 18, 2017.
      Hurtado-Cruz objected to the application of the two criminal history
points under § 4A1.1(d) on the ground that neither the Factual Resume nor the
PSR includes evidence supporting the conclusion that he entered into the
conspiracy at issue prior to the expiration of his term of supervised release. A
supplemental PSR was prepared, but it did not set forth facts reflecting that
Hurtado-Cruz had become a member of the conspiracy prior to March 1, 2017,
though the supplemental PSR continued to recommend that such a finding was
warranted. The district court overruled Hurtado-Cruz’s objection, adopted the
PSR, and imposed a sentence of 365 months of imprisonment followed by a
five-year term of supervised release. Hurtado-Cruz appeals.
                                       II
      Under United States Sentencing Guideline § 4A1.1(d), two points are
added to a defendant’s criminal history score if the defendant committed any




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                                       No. 18-10411
part of the offense at issue while under supervised release. 1 The district court
imposed two criminal history points under § 4A1.1(d) based on its factual
finding that Hurtado-Cruz committed some part of the offense to which he
pleaded guilty—conspiracy with Arias to possess with intent to distribute
methamphetamine—prior to February 18, 2017, the date on which his
supervised release ended. Hurtado-Cruz contends that the district court’s
factual finding was clearly erroneous.
       We review a district court’s application of the Sentencing Guidelines de
novo and the factual findings underpinning a district court’s sentencing
decision for clear error. 2 “[I]n determining whether an enhancement applies,
a district court is permitted to draw reasonable inferences from the facts, and
these inferences are fact-findings reviewed for clear error as well.” 3 We must
uphold the factual finding underpinning a sentencing enhancement if it is
“plausible in light of the record as a whole” 4 and supported by “an adequate
evidentiary basis.” 5
       The district court’s conclusion that Hurtado-Cruz participated in the
conspiracy prior to February 17, 2018, was not supported by an adequate
evidentiary basis. The record certainly includes evidence that Arias began
receiving methamphetamine in early 2016 and that Hurtado-Cruz distributed
methamphetamine at Arias’s direction after February 17, 2018. However,



       1   U.S. SENTENCING GUIDELINES MANUAL § 4A1.1(d), § 4A1.1(d) cmt. n.4 (U.S.
SENTENCING COMM’N 2016).
        2 United States v. Ingles, 445 F.3d 830, 840 (5th Cir. 2006) (citing United States v.

Villegas, 404 F.3d 355, 361-62 (5th Cir. 2005); United States v. Villanueva, 408 F.3d 193, 203
n.9 (5th Cir. 2005)).
        3 United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006) (citing United States v.

Rodriguez, 897 F.2d 1324, 1326 (5th Cir. 1990)).
        4 United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998) (quoting United States v.

Sanders, 942 F.2d 894, 897 (5th Cir. 1991)).
        5 United States v. Garcia, 111 F.3d 892, 892 (5th Cir. 1997) (per curiam) (unpublished)

(citing Rodriguez, 897 F.2d at 1327-28).
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there is no evidence that Hurtado-Cruz joined Arias’s conspiracy prior to
February 17, 2018—neither the Factual Resume nor the PSR include the date
on which Hurtado-Cruz began participating in the conspiracy, and the acts in
furtherance of the conspiracy detailed in the PSR all occurred after February
17, 2018. Accordingly, the district court’s determination that Hurtado-Cruz
joined the conspiracy while on supervised release was erroneous, as was its
imposition of two criminal history points under § 4A1.1(d) without a sufficient
factual basis.
                             *          *        *
      Hurtado-Cruz’s sentence is VACATED, and his case is REMANDED to
the district court for further proceedings.




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