                                                                                [PUBLISH]

                     IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT

                                                                           FILED
                                         No. 92-4491              U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                            2/16/03
                             D. C. Docket No. 91-10021-CR-JLK           THOMAS K. KAHN
                                                                            CLERK

       UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                            versus

       JESUS PERULENA,
                                                                          Defendant-Appellant.



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


                                       (July 24, 1998)


Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, Senior District Judge.




_____________________________________________________
*Honorable James H. Hancock, Senior U. S. District Judge for the Northern District of Alabama,
sitting by designation.
TJOFLAT, Circuit Judge:

       From May of 1988 through July of 1991, Jose Romeu operated a successful drug

smuggling ring in south Florida. Columbian suppliers of marijuana and cocaine would fly bales

of the drugs to an area near the Bahamas and drop them into the sea; boats operated by Romeu’s

associates would then retrieve the drugs and transport them to the Florida Keys, where they

would be off-loaded and distributed to drug dealers. Romeu’s drug smuggling enterprise came

to an end in July of 1991, when a Southern District of Florida grand jury returned a seven-count

indictment against Romeu and thirteen of his accomplices. Appellant Jesus Perulena was

charged in two of the counts.

       Perulena was charged in Counts I and IV of the indictment. Count I alleged that, from

May of 1988 through May of 1989, Romeu, Perulena, and five others1 conspired to possess with

intent to distribute marijuana, and conspired to distribute marijuana, in violation of 21 U.S.C. §§

841(a)(1) and 846. Count IV alleged that, in May of 1989, Romeu, Perulena, and three others2

possessed with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 2.

       By the time the case came to trial, five of the fourteen defendants were fugitives --

Romeu, Pedro Gonzalez, Francisco Martinez-Estrada, Francisco Lopez, and John Doe a/k/a




       1
             In addition to Romeu and Perulena, those charged in Count I were Pedro
Gonzalez, Hector Mendoza, Francisco Martinez-Estrada, Raul Jimenez, and Andres Pintado.
       2
               Two of these others were Count I defendants, Pedro Gonzalez and Andres
Pintado; the other defendant named in Count IV was Francisco Lopez.

                                                 2
“Javau” -- and seven had pled guilty.3 Perulena and Domingo Gonzalez were the only indictees

to stand trial.

        Perulena and Gonzalez were tried together in a four-day jury trial. The proof of guilt was

overwhelming; it included the testimony of five of the seven defendants who had pled guilty --

Manuel Mesa, Geovanni Gomez, Carlos Socarras, Andres Pintado, and Richard Roe, a/k/a “El

Cancharco” and “Hidle” -- as well as several unindicted members of the Romeu organization.

The jury found both Perulena and Gonzalez guilty as charged. On May 19, 1992, the court

sentenced Perulena and Gonzalez under the guidelines promulgated by the United States

Sentencing Commission to identical 292-month terms of imprisonment on each count,4 to be

served concurrently, followed by five-year terms of supervised release on each count, also to be

served concurrently. Perulena subsequently appealed, challenging both his convictions and his

sentences.5



        3
               Two of the seven defendants who pled guilty -- Hector Mendoza and Richard
Roe, a/k/a “El Cancharco” and “Hidle” -- consented to plead guilty and be sentenced in districts
other than the Southern District of Florida pursuant to Federal Rules of Criminal Procedure Rule
20.
        4
                 Relying on the presentence investigative report (the “PSR”) prepared by the
district court’s probation office for each defendant’s sentencing hearing, the district court
determined that the guideline sentencing range for both defendants was the range prescribed for
an offense level of 40 and a criminal history category of I; that range called for a term of
imprisonment of 292-365 months. For each offense the court sentenced both Perulena and
Gonzalez at the low end of this sentencing range.
        5
                Perulena and Gonzalez initially filed a joint appeal of their convictions and
sentences. At oral argument, however, the panel of this court assigned to hear the case granted
Perulena a continuance and heard oral argument only as to Gonzalez’ appeal. Gonzalez’ case
subsequently was remanded to the district court for resentencing. See United States v. Perulena,
83 F.3d 435 (11th Cir. 1996) (unpublished table decision). Perulena thereafter presented his
appeal at oral argument before this panel, and this opinion only addresses the convictions and
sentences of Perulena.

                                                3
       Perulena’s challenges to his convictions are devoid of merit;6 we therefore affirm his

convictions without further comment. See Eleventh Circuit Rule 36-1. As for Perulena’s

sentences, we conclude that the district court misapplied the United States Sentencing Guidelines

in determining the quantity of drugs for which he should be held accountable, and therefore erred

in arriving at the sentencing range for Perulena’s offenses.7 Because the error was not harmless,

we vacate Perulena’s sentences and remand his case for resentencing.



                                                  I.

       According to the evidence adduced at trial, Perulena joined the Romeu marijuana

conspiracy in the conspiracy’s final days, in May of 1989, for the purpose of assisting in the

transportation of 7,000 pounds of marijuana from the drop site at sea to Islamorada in the Florida

Keys, where it would be off-loaded. The conspirators took two boats to transport the marijuana

from the drop site. One boat broke down, however, and the conspirators were able to bring only

3,500 pounds of marijuana to shore. The PSR prepared by the district court’s probation office

held Perulena accountable for all 7,000 pounds, approximately 3,175 kilograms, that the

conspirators had planned to import, and another 11,794 kilograms of marijuana that the Romeu

organization successfully smuggled into the United States in June of 1988, eleven months before


       6
                 Perulena contends that his convictions should be set aside, and judgment of
acquittal entered, on the ground that the evidence was insufficient to support his convictions.
Alternatively, he seeks a new trial on the grounds (1) that the district court erred in refusing to
sever his trial from Gonzalez’ trial, and (2) that the court erred in giving certain limiting
instructions to the jury.
       7
              Whether the district court misinterpreted the Sentencing Guidelines is a question
of law. Accordingly, we review the district court’s interpretation of the guidelines in this case de
novo.

                                                  4
Perulena joined the conspiracy. The probation office reasoned that Perulena could be held

accountable for these amounts because “the substantive count[s] III and IV were part of the same

course of conduct and common scheme charged in the conspiracy, count I, the base offense level

includes the total amount of marijuana involved in the conspiracy, pursuant to Section

1B1.3(a)(2).”8 The PSR, therefore, recommended sentences based on attribution to Perulena of

14,969 kilograms of marijuana, which, it concluded, resulted in a base offense level of 36.

       At the sentencing hearing, Perulena objected to the PSR’s recommendation that he be

held accountable for the marijuana that the Romeu organization imported into the United States

in June of 1988, prior to his involvement in the conspiracy. Perulena’s counsel noted that the

Government had never proven -- or even attempted to prove -- that Perulena was involved in the

June 1988 shipment, and argued that the 11,794 kilograms of marijuana imported by the Romeu

organization on that date therefore should not be included in calculating his offense level.

       In response to Perulena’s argument, the Government asserted that Perulena was, in fact, a

major figure in the drug importation and distribution business, not merely a participant in one

transaction with Romeu’s organization. To bolster this assertion, the Government offered the

testimony of Randy Willich of the Florida Marine Patrol, who testified that he had been

monitoring Perulena’s activities since the early 1980s. According to Willich, Perulena was

heavily involved in the importation of illegal drugs into the United States, arranging at various

times for the importation of shipments of both cocaine and marijuana. He testified that Perulena

and Romeu worked together on occasion, when it was convenient, but that Perulena was


       8
               The court’s probation office erred in including a conviction on Count III in
calculating Perulena’s base offense level, because Perulena was not named as a defendant in that
count. The error, however, is of no moment given our disposition of Perulena’s appeal.

                                                 5
essentially equal in stature to Romeu in the drug importation business. Notwithstanding that

Willich’s testimony suggested the existence of a number of separate conspiracies rather than a

single conspiracy in which both Perulena and Romeu were involved, his only testimony even

remotely suggesting that Perulena was involved with the June 1988 shipment was his claim that

one person involved in that shipment, Tomas Cabrera, worked on occasion for Perulena. Willich

then testified, however, that Cabrera worked for “anybody,” including Romeu, and he did not

assert that Cabrera was working for Perulena in connection with the June 1988 shipment.

       The district court nevertheless overruled Perulena’s objection to the inclusion of the June

1988 shipment in the calculation of his base offense level, concluding that one who has been

found guilty of participating in a drug smuggling conspiracy is accountable for all of the drugs

imported during the life of the conspiracy as a matter of law. The court stated:

       It seems to me that when one willfully becomes a member of that type of
       organization, that one therefore becomes responsible for the activities of the
       organization, not only the activities that occurred after the joining, the willful
       joining of the conspiracy, but those that may have taken place before, provided
       one willfully joins what he or she knows to be an organization dedicated to the
       importation of multi-ton quantities of marijuana and cocaine into the United
       States.

The court thus adopted the PSR’s recommendation that Perulena be held accountable for the

approximately 14,969 kilograms of marijuana imported into the United States in June of 1988

and May of 1989, and sentenced Perulena at the low end of the guideline sentence range.9




       9
               The district court also imposed, under U.S.S.G. § 3B1.1(a) (1991), a four-level
enhancement to Perulena’s base offense level because it found that he was an “organizer or
leader” of the May 1989 shipment, thus giving Perulena a final base offense level of 40.
Perulena argues in his brief that he was, at worst, a supervisor, and thus deserved only a three-
level enhancement in accordance with U.S.S.G. § 3B1.1(b). We find this contention meritless.

                                                 6
       Perulena now contends that the district court erred in holding him accountable for the

June 1988 importation because, under his reading of the sentencing guidelines, he could not be

held accountable for the drugs smuggled by the Romeu organization before he joined it. Section

1B1.3(a)(2) of the 1991 Sentencing Guidelines, which the probation office and the district court

relied upon in deciding the quantity of marijuana for which Perulena should be held accountable,

required that the court, in determining the base offense level in a case such as Perulena’s, take

into account the following:

       solely with respect to offenses of a character for which [U.S.S.G.] § 3D1.2 (d)
       would require grouping of multiple counts, all such acts and 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) (1991) (emphasis added).10 Standing alone, this provision would seem to

dispose of Perulena’s argument and support the court’s conclusion that Perulena was responsible

for the past acts of the Romeu conspiracy. Application Note 2, however, explains that the phrase

“‘[s]uch acts and omissions that were part of the same course of conduct or common scheme or

plan as the offense of conviction,’ as used in subsection (a)(2), refers to acts and omissions

committed or aided and abetted by the defendant, or for which the defendant would be otherwise

accountable.” U.S.S.G. § 1B1.3, comment. (n.2) (1991) (emphasis added). No evidence was

presented by the Government that suggested that Perulena committed or aided and abetted the

July 1988 offense, leaving only the question of whether the July 1988 shipment was an act or

omission “for which the defendant would be otherwise accountable.”



       10
                The district court applied the 1991 version of the Guidelines, which were in effect
at the time of Perulena’s sentencing on May 19, 1992. See United States Sentencing
Commission, Guidelines Manual (Nov. 1, 1991).

                                                 7
       The language in Application Note 2 tracks the language in the subsection that precedes

(a)(2) -- subsection (a)(1). Subsection (a)(1) provides that, in determining Perulena’s base

offense level, the district court was required to take into account the following:

       all acts and omissions committed or aided and abetted by the defendant, or for
       which the defendant would be otherwise accountable, 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, or that
       otherwise were in furtherance of that offense[.]

U.S.S.G. § 1B1.3(a)(1) (1991) (emphasis added). Finally, in Application Note 1, the Guidelines

Manual explains that

       [c]onduct “for which the defendant would be otherwise accountable,” as used in
       subsection (a) (1), includes conduct that the defendant counseled, commanded,
       induced, procured, or willfully caused. (Cf. 18 U.S.C. § 2.) In the case of
       criminal activity undertaken in concert with others, whether or not charged as a
       conspiracy, the conduct for which the defendant “would be otherwise
       accountable” also includes conduct of others in furtherance of the execution of the
       jointly-undertaken criminal activity that was reasonably foreseeable by the
       defendant. Because a count may be broadly worded and include the conduct of
       many participants over a substantial period of time, the scope of the jointly-
       undertaken criminal activity, and hence relevant conduct, is not necessarily the
       same for every participant. Where it is established that the conduct was neither
       within the scope of the defendant’s agreement, nor was reasonably foreseeable in
       connection with the criminal activity the defendant agreed to jointly undertake,
       such conduct is not included in establishing the defendant’s offense level under
       this guideline.

U.S.S.G. § 1B1.3, comment. (n.1) (1991) (emphasis added). Application Note 1 also includes

illustrations of conduct for which the defendant should be held accountable. Illustration (e)

describes one particularly relevant situation:

       Defendants H and I are engaged in an ongoing marihuana importation conspiracy
       in which Defendant J was hired only to help off-load a single shipment.
       Defendants H, I, and J are included in a single count charging conspiracy to
       import marihuana. For the purposes of determining the offense level under this
       guideline, Defendant J is accountable for the entire single shipment of marihuana
       he conspired to help import and any acts or omissions in furtherance of the

                                                 8
       importation that were reasonably foreseeable. He is not accountable for prior or
       subsequent shipments of marihuana imported by Defendants H or I if those acts
       were beyond the scope of, and not reasonably foreseeable in connection with, the
       criminal activity he agreed to jointly undertake with Defendants H and I (i.e., the
       importation of the single shipment of marihuana).

U.S.S.G. § 1B1.3, comment. (n.1, illus. e) (1991).

       Reading these application notes and the above illustration as a whole, we conclude that

Perulena could not be held accountable for the June 1988 importation. That importation is not

conduct for which Perulena may be “otherwise accountable,” because it occurred almost a year

before he joined the Romeu conspiracy for the May 1989 shipment. In the words of illustration

(e) above, that importation was “beyond the scope of . . . the criminal activity he agreed to

jointly undertake with” Romeu and his accomplices.11 We therefore vacate Perulena’s sentences


       11
                 The 1992 amendment to U.S.S.G. § 1B1.3 and its accompanying application notes
significantly clarified the conduct that could be considered when sentencing a participant in a
criminal conspiracy. See U.S.S.G. App. C, amend. 439 (1997) (effective Nov. 1, 1992). Instead
of requiring the reader of the guideline section to proceed from subsection (a)(2) to Application
Note 2, then back to subsection (a)(1), and finally to Application Note 1 and its accompanying
illustrations -- all in order to discover the meaning of “such acts and omissions” as it appeared in
subsection (a)(2) -- the new subsection (a)(2) specifically references amended subsection (a)(1)
for determining the acts for which a participant in a conspiracy may be held accountable.
Subsections 1B1.3(a)(1) and (2) now state that the district court shall determine the defendant’s
base offense level based on the following:

(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 (a criminal plan, scheme,
               endeavor, or enterprise undertaken by the defendant in concert with others,
               whether or not charged as a conspiracy), 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;


                                                 9
(2)    solely with respect to offenses of a character for which § 3D1.2(d) would require
       grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and
       (1)(B) above 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)(1) - (2) (1997) (emphasis added). The amended application notes clarify
the fact that subsections (a)(1) and (a)(2) should be read in concert. Application Note 1 now
states, in part, that “[u]nder subsections (a)(1) and (a)(2), the focus is on the specific acts and
omissions for which the defendant is to be held accountable in determining the applicable
guideline range.” U.S.S.G. § 1B1.3, comment. (n.1) (1997). The amended Application Note 2
mirrors parts of old Application Note 1, stating in pertinent part:

       Because a count may be worded broadly and include the conduct of many
       participants over a period of time, the scope of the criminal activity jointly
       undertaken by the defendant (the “jointly undertaken criminal activity”) is not
       necessarily the same as the scope of the entire conspiracy, and hence relevant
       conduct is not necessarily the same for every participant. In order to determine
       the defendant’s accountability for the conduct of others under [U.S.S.G. §] (a) (1)
       (B), the court must first determine the scope of the criminal activity the particular
       defendant agreed to jointly undertake (i.e., the scope of the specific conduct and
       objectives embraced by the defendant’s agreement). The conduct of others that
       was both in furtherance of, and reasonably foreseeable in connection with, the
       criminal activity jointly undertaken by the defendant is relevant conduct under
       this provision. The 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 under this
       provision.

U.S.S.G. § 1B1.3, comment. (n.2) (1997) (emphasis added).
         Amended Application Note 2 also incorporates essentially verbatim the text of
illustration (e) of Application Note 1, quoted in the text supra, that was in effect at the time of
Perulena’s sentencing, with the exception of the last sentence of the illustration. The new
illustration reads, in pertinent part:

       Defendants H and I engaged in an ongoing marihuana importation conspiracy in
       which Defendant J was hired only to help off-load a single shipment. Defendants
       H, I, and J are included in a single count charging conspiracy to import
       marihuana. Defendant J is accountable for the entire single shipment of
       marihuana he helped import . . . and any acts and omissions in furtherance of the
       importation of that shipment that were reasonably foreseeable. . . . He is not
       accountable for prior or subsequent shipments of marihuana imported by
       Defendants H or I because those acts were not in furtherance of his jointly

                                                  10
and remand the case for further proceedings. On remand, the district court shall resentence

Perulena on the record that was before the court when it sentenced him in the first instance.




       undertaken criminal activity (the importation of the single shipment of
       marihuana).

U.S.S.G. § 1B1.3, comment. (n.2, illus. (c)(3)) (1997) (emphasis added). Applied to the facts in
the instant case, the last sentence of the amended illustration supports Perulena’s position four
square: the 11,794 kilograms imported into the United States in May 1988 should not have been
used to calculate Perulena’s base offense level.
        In addition, the commentary to section 1B1.3 was amended again in 1994, and the 1994
amendment to Application Note 2 lends even more support to our interpretation of the acts for
which a participant in a conspiracy may be held accountable. Application Note 2 now provides:

       A defendant’s relevant conduct does not include the conduct of members of a
       conspiracy prior to the defendant joining the conspiracy, even if the defendant
       knows of that conduct (e.g., in the case of a defendant who joins an ongoing drug
       distribution conspiracy knowing that it had been selling two kilograms of cocaine
       per week, the cocaine sold prior to the defendant joining the conspiracy is not
       included as relevant conduct in determining the defendant’s offense level). The
       Commission does not foreclose the possibility that there may be some unusual set
       of circumstances in which the exclusion of such conduct may not adequately
       reflect the defendant’s culpability; in such a case, an upward departure may be
       warranted.

U.S.S.G. App. C, amend. 503 (1997) (effective Nov. 1, 1994) (emphasis added).
         We finally note that both the 1992 and 1994 amendments to section 1B1.3 were
described by the Sentencing Commission as clarifying amendments, see U.S.S.G. App. C,
amends. 439, 503, and the amendments are certainly clarifying in effect. See United States v.
Word, 129 F.3d 1209, 1213 (11th Cir. 1997) (quoting language from amendment 503 and stating
that it is clarifying and applies retroactively); United States v. Lambert, 995 F.2d 1006, 1009 n.3
(10th Cir. 1993) (applying amendment 439 retroactively because it is clarifying); United States v.
Evbuomwan, 992 F.2d 70, 73-74 & n.1 (5th Cir. 1993) (considering language amended by
amendment 439 because amendment only clarified guideline and commentary). This circuit
applies clarifying amendments retroactively. See United States v. Scroggins, 880 F.2d 1204,
1215 (11th Cir. 1989) (stating that amendments that “do not effect a substantive change, but
rather are intended only to clarify the rule adopted by a particular guideline . . . constitute
strongly persuasive evidence of how the Sentencing Commission originally envisioned that the
courts would apply the affected guideline,” and therefore apply retroactively). Under any
reading of section 1B1.3, therefore, the district court erroneously computed Perulena’s base
offense level.

                                                11
                                                 II.

       For the reasons stated above, we vacate Perulena’s sentences and remand his case to the

district court for further proceedings not inconsistent with this opinion.

       VACATED and REMANDED, with instructions.




                                                 12
