                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4552


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

JAIME CONEJO,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District   of  North   Carolina,  at  Charlotte.     Robert J.
Conrad, Jr., Chief District Judge. (3:07-cr-00092-RJC-4)


Submitted:    May 27, 2009                  Decided:   June 29, 2009


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Jaime Conejo pled guilty without a plea agreement to

conspiracy to possess with intent to distribute five kilograms

or more of cocaine, 21 U.S.C.A. §§ 846, 841(b)(1)(A) (West 1999

& Supp. 2008) (Count 1), and possession of five kilograms of

cocaine   with    intent    to      distribute,         21   U.S.C.A.      §     841(a),

(b)(1)(A) (West 1999 & Supp. 2008) (Count 2).                         The district

court imposed concurrent sentences of ten years imprisonment on

each count.      Conejo appeals, contending that the district court

erred in finding a sufficient factual basis for his guilty plea.

The government concedes error as to Count Two, but maintains

that an adequate factual basis existed for Count One.                          We affirn

the judgment on Count One, but vacate the judgment on Count Two

and remand for resentencing.

          Conejo      and   three    co-defendants           agreed   to   sell     five

kilograms of cocaine to a confidential informant who was under

surveillance     by   federal       drug       agents    and    local      police     in

Charlotte, North Carolina.            Conejo transported five bricks of

cocaine to a garage where he met the informant with another

conspirator and showed the informant one brick of cocaine, which

the informant sampled.        The informant then accompanied Conejo to

his vehicle to see the other four bricks of cocaine.                           After he

saw the cocaine, the informant gave the signal for Conejo and

his co-defendants to be arrested.                Conejo was charged with the

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federal    offenses       of   conspiracy        to   possess     five       kilograms    of

cocaine    with     intent      to    distribute         and     possession        of   five

kilograms of cocaine with intent to distribute.                                At Conejo’s

guilty plea hearing, presentation of the factual basis for the

plea    was     deferred       until     sentencing.              Subsequently,          the

laboratory report on the seized cocaine disclosed that the total

net weight of the cocaine was 4.99 kilograms.

              Conejo’s     recommended           advisory       guideline       range    was

63-78    months.      Based      on    the   lab      report,     Conejo       refused    to

stipulate that he should be held responsible for five kilograms

of cocaine.        However, the district court found that Conejo was

liable for five kilograms because the defendants had negotiated

to sell that amount and had delivered five bricks of cocaine,

each purportedly weighing one kilogram.                        The court consequently

imposed a sentence of 120 months for each count, the statutory

minimum sentence under § 841(b)(1)(A) for an offense involving

five    kilograms    of    cocaine,     stating         that    “[i]t    is    a   sentence

required by law, the court has no discretion in imposing it.”

On appeal, Conejo contends that the factual basis was inadequate

to establish that he committed an aggravated drug trafficking

offense    involving      five   kilograms         of    cocaine,       thus    punishable

under § 841(b)(1)(A), for either count because he did not admit

his    personal    involvement        with   five       kilograms       of    cocaine    and



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because the district court gave insufficient consideration to

the lab report.

              Prior    to       “entering      judgment            on    a    guilty    plea,     the

[district] court must determine that there is a factual basis

for the plea.”         Fed. R. Crim. P. 11(b)(3).                        It is “well settled

that a defendant may raise on direct appeal the failure of a

district court to develop on the record a factual basis for a

plea . . . .”         United States v. Mitchell, 104 F.3d 649, 652 n.2

(4th Cir. 1997).            A district court’s finding of a factual basis

for a guilty plea is reviewed for abuse of discretion.                                        United

States v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002).                                    There is

no   abuse     “so    long        as   the     district            court      could     reasonably

determine that there was a sufficient factual basis.”                                   Id.

              “To prove conspiracy to possess cocaine with intent to

distribute, the Government must establish:                               (1) an agreement to

possess cocaine with intent to distribute existed between two or

more persons; (2) the defendant knew of this conspiracy; and (3)

the defendant knowingly and voluntarily became a part of this

conspiracy.”         United States v. Wilson, 135 F.3d 291, 306 (4th

Cir. 1998).          Here, Conejo did not dispute the fact that the

object   of    the     conspiracy            was       a    sale    of       five    kilograms     of

cocaine.

              Under        21     U.S.C.      § 846,          the       sentences       for     drug

conspiracies         are        set    out    in           § 841(b),         which     “creates     a

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three-part     graduated          penalty        scheme        for     drug        distribution

offenses,     premised       on    the     type        and    quantity        of    the     drugs

involved.”          United     States       v.       Brooks,         524     F.3d    549,      557

(4th Cir.), cert. denied, 129 S. Ct. 519 (2008).                                    We held in

Brooks that “‘specific threshold drug quantities must be treated

as elements of aggravated drug trafficking offenses, rather than

as   mere    sentencing      factors.’”          Id.    (quoting           United    States     v.

Promise, 255 F.3d 150, 156 (4th Cir. 2001)).                           Thus, the specific

threshold     drug    quantity         generally        must     be        proved    beyond     a

reasonable doubt or admitted by the defendant.                              Brooks, 524 F.3d

at 556-57.      The specific threshold quantity of cocaine required

for a sentence under § 841(b)(1)(A) is five kilograms.

             However,     for      a    conspiracy           offense,       the     defendant’s

agreement to commit a crime involving a specific amount is the

essential element that must be proved to trigger a statutorily

enhanced     sentence,       not       whether       the     agreed-upon          conduct      was

actually completed.          See United States v. Dixon, 449 F.3d 194,

202 (1st Cir. 2006) (“factual impossibility is not a defense to

either      liability     or       sentencing           enhancements          for      inchoate

offenses     such    as   conspiracy        or       attempt”);        United        States     v.

Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (attempt).                                   However,

for the statutory minimums of § 841(b) to apply, the particular

threshold     drug    amount       must    be       reasonably        foreseeable         to   the

defendant.      Brooks, 524 F.3d at 558.                       Here, we are satisfied

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that    the    district       court    did     not   err     in   finding     that    Conejo

agreed to distribute five kilograms of cocaine and that it was

reasonably foreseeable to him that the five bricks weighed five

kilograms, even though they actually weighed slightly less.

              For     guideline       purposes,       Conejo      was     responsible       for

five kilograms of cocaine on Count One.                            See U.S. Sentencing

Guidelines       Manual       § 2D1.1,         comment.       (n.12)       (when     offense

involves agreement to sell drugs, agreed-upon quantity is used

to     determine       offense        level     unless       amount       delivered      more

accurately reflects scale of offense).                     Therefore, the probation

officer correctly calculated the advisory guideline range at 63-

78 months.       However, because Conejo was subject to a mandatory

minimum sentence of ten years, the guideline range increased to

120 months.      USSG § 5G1.1(b) (2006).

               For    Count    Two,    which       charged     that     Conejo     possessed

five     kilograms      of     cocaine        with    intent       to     distribute,       the

government concedes that the specific threshold drug quantity

needed    to    trigger       a   sentence         under     § 841(b)(1)(A)        was      not

present, and we agree.            Thus, for Count Two, the default penalty

subsection       of     § 841(b)(1)(C)             applied,       which     sets     only     a

statutory maximum of twenty years.                   Brooks, 524 F.3d at 561.

              We therefore affirm the judgment on Count One, but

vacate the judgment on Count Two and remand for resentencing on

that count.          We dispense with oral argument because the facts

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and legal contentions are adequately presented in the materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                      AFFIRMED IN PART;
                                           VACATED AND REMANDED IN PART




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