                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4464


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MARCO ANTONIO FLORES-ALVARADO, a/k/a Guero,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00089-BO-5)


Argued:   December 11, 2014                   Decided:    March 3, 2015

                     Amended:    March 11, 2015


Before TRAXLER,   Chief   Judge,   and     WYNN   and   HARRIS,   Circuit
Judges.


Vacated and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Wynn and Judge Harris joined.


ARGUED: Wayne Buchanan Eads, Raleigh, North Carolina, for
Appellant.    Yvonne Victoria Watford-McKinney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
TRAXLER, Chief Judge:

       Marco Antonio Flores-Alvarado pleaded guilty to conspiracy

to   distribute           and    to    possess       with        intent   to    distribute       five

kilograms          or    more    of    cocaine        and    1000    kilograms      or    more     of

marijuana, see 21 U.S.C. §§ 841(a)(1), 846, and possession with

intent        to     distribute         (“PWID”)         more      than    100    kilograms       of

marijuana,          see    21    U.S.C.        §    841(a)(1).            The    district       court

sentenced Flores-Alvarado to life imprisonment on the conspiracy

charge and a concurrent term of 480 months’ imprisonment on the

PWID     charge.                Flores-Alvarado              appeals,          raising     several

challenges to his sentence.                        Because the district court failed

to     make        the    required          factual      findings         regarding      the    drug

quantity attributed to Flores-Alvarado, we vacate and remand for

re-sentencing.

                                                    I.

       According          to    the     information          in     the    presentence         report

(“PSR”),           Flores-Alvarado            and        codefendant        Enrique       Mendoza-

Figueroa ran two related drug trafficking organizations in North

Carolina.            Flores-Alvarado           and       Mendoza-Figueroa         used    multiple

sources in Mexico and the United States for their marijuana and

cocaine and “routinely bought and sold large amounts of drugs

from each other.”               J.A. 107.

       In     calculating             the    advisory        Guidelines         range,    the     PSR

recommended             that    Flores-Alvarado             be    held    accountable       for    at

                                                     2
least 3886.3 kilograms of marijuana and 136.125 kilograms of

cocaine,    which    converted    to   a       total   marijuana   equivalent   of

31,111.16 kilograms.         Included in these quantities were drugs

seized     from     houses   in    Stokesdale,           North     Carolina   (the

“Stokesdale Seizure”), and Lexington, Kentucky (the “Lexington

Seizure”).    The PSR described those seizures as follows:

     12. On April 25, 2011, agents determined that Flores-
     Alvarado was involved in the distribution of a large
     shipment of marijuana from Stokesdale, North Carolina,
     to Shannon, North Carolina.        Agents subsequently
     seized 1,424 pounds (645.9 kilograms) of marijuana
     from a residence in Stokesdale.         Following this
     seizure, Flores-Alvarado stopped using one of the
     target telephone numbers which agents had used to
     facilitate the seizure in this case.      Additionally,
     calls made to and from Flores-Alvarado connected [a
     co-defendant] to this transaction.

     . . .

     17.   On August 17, 2011, Flores-Alvarado traveled to
     Lexington, Kentucky, to coordinate the distribution of
     a    multi-thousand-pound    marijuana    shipment   from
     Kentucky to North Carolina. Although the shipment was
     canceled, agents with the DEA in Lexington were able
     to identify a significant marijuana distribution cell
     operating in that area. During the week of October 4,
     2011, agents determined that Flores-Alvarado and [the
     same    co-defendant]   were   again   coordinating   the
     delivery of a large shipment of marijuana from
     Lexington to the Eastern District of North Carolina.
     Agents     established    surveillance     on   locations
     previously identified during the surveillance of
     Flores-Alvarado in August of 2011.          As a result,
     agents in Lexington were able to seize 3,510 pounds
     (1,592.1 kilograms) of marijuana and $1,835,021.40 in
     drug proceeds.    Seven members of the Lexington [drug-
     trafficking organization] were also arrested.

J.A. 107-09 (footnote omitted).



                                           3
      Based on the 31,111.16 kilograms of marijuana attributed to

Flores-Alvarado, the PSR assigned him a base offense level of

38, see U.S.S.G. § 2D1.1(c)(1), and, after other adjustments, a

total offense level of 43.          With that offense level and Flores-

Alvarado’s Category II criminal history, the advisory sentencing

range on both counts was life imprisonment.             See U.S.S.G. ch. 5,

pt.   A   (sentencing    table).      However,      because    the   statutory

maximum on the PWID count was 40 years’ imprisonment, see 21

U.S.C. § 841(b)(1)(B), the Guidelines range on that count became

480   months,    see     U.S.S.G.     §     5G1.1(c)(1)   (capping      higher

Guidelines range at statutory maximum).             If the drug quantities

involved in the Stokesdale Seizure and the Lexington Seizure are

excluded,   Flores-Alvarado’s       total    offense   level   drops   to   41,

with an advisory sentencing range of 360 months to life.

      Counsel   for    Flores-Alvarado      filed   numerous   objections   to

drug quantities attributed to him, including the quantities from

the Stokesdale Seizure and the Lexington Seizure, and asserted

that Flores-Alvarado should be held accountable for no more than

the equivalent of 8169.32 kilograms of marijuana, a quantity

that would reduce his base offense level from 38 to 34.                Counsel

also filed a sentencing memorandum in which he reiterated his

objections to the PSR and moved for a variance sentence of 10

years’ imprisonment.



                                      4
       Sentencing was conducted over the course of two hearings,

the    first   being    continued    midway          through    to   allow    for    the

appearance of the prosecutor who tried the case and was thus

more   familiar     with   the    facts.        At    both   sentencing      hearings,

counsel argued that the quantities of marijuana attributed to

Flores-Alvarado from the Stokesdale and Lexington Seizures were

attempted purchases that, in accordance with U.S.S.G. § 2X1.1,

should be assigned lower offense levels than if the transactions

had been completed.          Counsel also argued that Flores-Alvarado

could be held responsible for the amounts he was attempting to

purchase, but that he should not be held accountable for the

full quantities that were later seized.                      Counsel argued for a

downward variance and attempted to explain to the court that his

client had refused to cooperate because he feared retribution

against his family by the Mexican drug traffickers.

       At the second hearing, the district court asked the then-

in-attendance       prosecuting       attorney          to     explain     the      drug

quantities attributed to Flores-Alvarado.                    As to the marijuana,

the    prosecutor      explained    that       the    quantities     attributed      to

Flores-Alvarado        included    3500    pounds       of     marijuana     from   the

Lexington Seizure, which she stated were attributed to Flores-

Alvarado through intercepted cell phone calls establishing that

he had arranged a purchase there, as well as 1424 pounds of



                                           5
marijuana from the Stokesdale Seizure. 1                              The government did not

call any witnesses or present any other evidence about the drug

quantities or the Stokesdale and Lexington Seizures.

        Responding             to     Flores-Alvarado’s                 argument         that       the

Stokesdale         and       Lexington      Seizures           should      be    treated    as     mere

attempts,          the       government      countered          that       Flores-Alvarado         was

charged       with       conspiracy,        a   crime       that      was   complete       when    the

conspiratorial agreement was reached, and that it was reasonably

foreseeable to Flores-Alvarado that the Stokesdale and Lexington

drug        suppliers        would    have      on       hand    quantities        exceeding        the

amount       he    attempted         to    purchase.            In   the    government’s          view,

Flores-Alvarado              should       not   benefit         from       the    fact     that    law

enforcement            was    able    to    seize        the    drugs    before     he     purchased

them.

       The district court agreed with the government’s view and

“f[ound]          by     a    preponderance          of    the       evidence”      that     Flores-


        1
       When summarizing the transactions involving cocaine, the
prosecutor included an incident involving the seizure of
$189,000 in cash during a traffic stop in Georgia. According to
the prosecutor, the cash was converted to 5.9 kilograms of
cocaine and attributed to Flores-Alvarado.    The PSR, however,
attributed those quantities to Mendoza-Figueroa, not Flores-
Alvarado. Because we find the district court’s fact-finding to
be inadequate in another regard, we need not consider Flores-
Alvarado’s challenge to the district court’s apparent inclusion
of the $189,000 in the drug quantities attributed to Flores-
Alvarado. Should the issue arise on remand, Flores-Alvarado may
renew his objection.



                                                     6
Alvarado qualified for a base offense level of 38.                           J.A. 68.

After applying the other adjustments as provided in the PSR, the

court determined that Flores-Alvarado’s total offense level was

43 and that the Guidelines sentencing range was therefore life

imprisonment.       After listening to Flores-Alvarado’s argument for

a variance sentence and the government’s response, the district

court announced its sentence, stating, “All right.                           On Count

One, I’ll impose a sentence of life and on Count Two a sentence

of 480 months concurrent.”          J.A. 93.

        Flores-Alvarado     appeals,           challenging     his   sentence      on

several grounds. He argues that the district court failed to

make the necessary factual findings to support its drug-quantity

calculations; that the court’s determination of the quantities

attributable to Flores-Alvarado was clearly erroneous; that the

court    failed     to   consider    the       relevant   18   U.S.C.    §    3553(a)

sentencing factors or adequately explain the sentence; and that

the life sentence amounted to cruel and unusual punishment in

violation of the Eighth Amendment.

                                       II.

        We   turn   first    to     Flores-Alvarado’s          related   arguments

challenging the drug quantity attributed to him by the district

court and the sufficiency of the court’s factual findings on

that issue.       We review the factual findings made by a sentencing

court for clear error. See United States v. Medina–Campo, 714

                                           7
F.3d 232, 234 (4th Cir.), cert denied, 134 S. Ct. 280 (2013).

Accordingly, “[i]f the district court makes adequate findings as

to a controverted [sentencing] matter, this court must affirm

those   findings      unless      they     are    clearly       erroneous.”         United

States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991).                              However,

the “review process cannot take place without the district court

first resolving all the disputed matters upon which it relies at

sentencing.”       Id.

     Flores-Alvarado’s            objections       to     the     inclusion       of     the

Stokesdale and Lexington Seizures were not mere quibbles over

the PSR’s drug totals, but were specific and factually grounded

enough to raise legal and factual questions about whether the

events as described in the PSR supported attributing the seized

quantities to Flores-Alvarado.               The district court was therefore

obligated     to    resolve       the    dispute.         See     Fed.    R.     Crim.    P.

32(i)(3)(B)        (requiring      “for     any        disputed     portion       of     the

presentence        report    or    other     controverted         matter”        that    the

district court “rule on the dispute or determine that a ruling

is   unnecessary         either    because       the    matter     will     not     affect

sentencing, or because the court will not consider the matter in

sentencing”); United States v. Walker, 29 F.3d 908, 912 (4th

Cir. 1994) (finding “specific objections to the factual findings

underlying     the       PSR’s    recommendation”         sufficient        to     trigger

court’s Rule 32 obligations).               As we will explain, the district

                                            8
court did not resolve the disputed issue and did not make the

factual findings necessary to attribute to Flores-Alvarado the

quantities involved in the Stokesdale Seizure and the Lexington

Seizure.

       The sentences imposed for drug offenses are driven by the

quantity      of   drugs     involved.       Under    the   Guidelines,    the     drug

quantities that may be attributed to the defendant include the

quantities associated with the defendant’s offense of conviction

and any relevant conduct.                See United States v. Gilliam, 987

F.2d       1009,   1012-13     (4th   Cir.       1993).     Relevant     conduct    in

conspiracy cases includes “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal       activity.”        U.S.S.G.        §   1B1.3(a)(1)(B). 2      As      the

Guidelines point out, however,

       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. . . .
       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

       2
        We note that the Sentencing Commission has recently
proposed amendments to the § 1B1.3 Guideline and commentary so
as “to provide more guidance on the use of ‘jointly undertaken
criminal activity’ in determining relevant conduct.”    Notice of
Proposed Amendments to Sentencing Guidelines, Policy Statements,
and Commentary, 80 Fed. Reg. 2570, 2570 (Jan. 16, 2015).


                                             9
      not reasonably foreseeable in connection with that
      criminal activity, is not relevant conduct under this
      provision.

U.S.S.G. § 1B1.3, cmt. n.2 (emphasis added); see also United

States   v.    Soto-Piedra,        525    F.3d     527,    531       (7th        Cir.       2008)

(“Conspiracy       liability,      as    defined   in     Pinkerton          .    .     .   ,    is

generally much broader than jointly undertaken criminal activity

under § 1B1.3.”).

      “Accordingly,      in    order      to    attribute       to    a    defendant            for

sentencing    purposes      the    acts    of    others     in       jointly-undertaken

criminal activity, those acts must have been within the scope of

the   defendant’s       agreement         and    must     have        been        reasonably

foreseeable to the defendant.”                  Gilliam, 987 F.2d at 1012-13

(emphasis added); see U.S.S.G. § 1B1.3, cmt. n.2 (“In 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    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).”).        And     as   to    this    issue,    we    require          sentencing

courts to “make particularized findings with respect to both the

scope of the defendant’s agreement and the foreseeability of

[the conduct at issue].”            United States v. Bolden, 325 F.3d 471,

499 (4th Cir. 2003) (second emphasis added; internal quotation

marks omitted).

                                           10
      In    this    case,     the       district      court,     by    agreeing    with    the

government’s foreseeability argument, at least implicitly found

that the quantities involved in the Stokesdale and Lexington

Seizures     were     foreseeable           to    Flores-Alvarado.           As    discussed

above, however, foreseeability is not enough; the acts of others

may   be    attributed      to      a      defendant      only    if    those     acts     were

foreseeable to the defendant and were within the scope of the

defendant’s        agreement     to      jointly        undertake      criminal    activity.

See     Bolden,     325   F.3d        at     499;       see   also     United     States     v.

Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993) (“If the defendant

has not joined the criminal activity, it does not matter that he

could      have     foreseen        the      criminal         act.        The     reasonably

foreseeable        standard    applies           only    after   it     is   shown    that    a

jointly undertaken activity has taken place.”).                               The district

court,     however,       made      no       findings,        implicit       or    explicit,

addressing the critical factual question of the scope of the

criminal activity Flores-Alvarado agreed to jointly undertake.

      We recognize that the district court adopted the PSR, which

can be a satisfactory means of resolving factual disputes.                                 See,

e.g., Bolden, 325 F.3d at 497; Walker, 29 F.3d at 911.                               Adopting

the PSR does not satisfy the requirements of Rule 32(i)(3)(B),

however, if the factual recitations in the PSR do not support

the PSR’s recommendation.                   See United States v. Chandia, 514

F.3d 365, 376 (4th Cir. 2008) (remanding for resentencing where

                                                 11
district      court      adopted      PSR’s    recommended          enhancement      but     PSR

“did not contain any factual assertions” to support application

of    the    enhancement);          Bolden,    325     F.3d    at    498    (remanding      for

recalculation of loss amount where district court adopted PSR

but PSR “fail[ed] to support” a necessary factual finding); see

also United States v. Robinson, 744 F.3d 293, 300 n.5 (4th Cir.)

(explaining that “a probation officer’s calculation in a PSR

standing       alone      (that       is,      without        the    identification           of

supporting evidence of any kind) does not constitute a finding

of    fact    on    which       a    sentencing        court    can        rely”   (internal

quotation marks omitted)), cert. denied, 135 S. Ct. 225 (2014).

In    this     case,      the       factual      recitations          of     the     PSR    are

insufficient to attribute the Stokesdale and Lexington Seizures

to Flores-Alvarado.           See United States v. Hammond, 201 F.3d 346,

352    (5th    Cir.      1999)       (per     curiam)    (vacating          sentence       which

attributed to defendant losses incurred by third parties because

PSR    adopted      by     the      court      did     not    contain       the    “absolute

prerequisite[]” factual finding as to the scope of the jointly

undertaken         criminal          activity        (internal         quotation           marks

omitted)).

       As to the Stokesdale Seizure, the PSR states that in April

2011, “Flores-Alvarado was involved in the distribution of a

large shipment of marijuana from Stokesdale, North Carolina, to

Shannon,       North       Carolina,”           J.A.     107,        and      that     agents

                                               12
“subsequently seized 1,424 pounds . . . of marijuana from a

residence in Stokesdale,” J.A. 108 (emphasis added).                                 Based on

these facts, the PSR and the district court attributed the full

amount of that seizure to Flores-Alvarado.                              For the amount of

drugs that the Stokesdale supplier later happened to have on-

hand to be attributable to Flores-Alvarado, there would need to

be some kind of evidence showing that Flores-Alvarado and the

Stokesdale       supplier          jointly   agreed        to    operate      together      for

future    drug    deals.           The    mere    fact    that     Flores-Alvarado          once

bought marijuana from the Stokesdale supplier does not establish

the kind of relationship necessary to support the attribution.

See     U.S.S.G.        §    1B1.3,       cmt.        n.2(c)(4)     (child        pornography

possessed by wholesale distributor not attributable to dealer

who     purchases           from      wholesaler          “but     otherwise         operates

independently”).             The bare-bones information in the PSR about

the Stokesdale Seizure does not even conclusively establish that

the   drugs      were       seized    from       the    same     marijuana        dealer    that

Flores-Alvarado had been involved with, much less that the 1,400

pounds    of     marijuana         were    within       the     scope    of   the    criminal

activity       jointly       undertaken      by        Flores-Alvarado.            The     PSR’s

reference to phone calls from Flores-Alvarado connecting a co-

defendant “to this transaction,” J.A. 108, provides a hint that

there    might     in       fact     be   evidence       establishing         a    sufficient



                                                 13
connection, but the facts actually spelled out in the PSR do not

establish that connection.

      The facts recited in the PSR are likewise inadequate as to

the drug quantities involved in the Lexington Seizure.               The PSR

states that Flores-Alvarado went to Kentucky in August 2011 to

coordinate a deal involving thousands of pounds of marijuana,

but that the deal fell through; that agents learned in October

2011 that Alvarado again was working on a deal for a large

shipment of marijuana from Lexington; and that agents placed

under surveillance locations identified during Flores-Alvarado’s

previous trip to Lexington and thereafter seized 3500 pounds of

marijuana.       Unlike   the    allegations    regarding   the   Stokesdale

Seizure, these allegations are perhaps sufficient to establish

that the drugs were seized from the same supplier that Alvarado

contacted in August.         Nonetheless, for the reasons discussed

above, the facts of the Lexington Seizure as described in the

PSR   do   not   establish      that   the   marijuana   possessed   by   the

supplier in October was within the scope of Flores-Alvarado’s

jointly undertaken criminal activity.

      Because the PSR does not contain facts sufficient to show

that the quantities from the Stokesdale Seizure and Lexington

Seizure were within the scope of the criminal activity jointly

undertaken by Flores-Alvarado and the district court failed to

make any findings on this critical point, the factual findings

                                       14
underlying      the   court’s     drug      quantity      calculations     are

“inadequate.”      Bolden, 325 F.3d at 500.            Consequently, we are

unable to review the issue and must remand for resentencing.

See id. at n.34; Morgan, 942 F.2d at 245 (“In the event the

district court fails to resolve a disputed factual matter on

which    it   necessarily   relied   at     sentencing,    this   court   must

vacate the sentence and remand for resentencing.”).

                                     III.

     For the reasons set out above, we hereby vacate Flores-

Alvarado’s     sentence   and   remand     for   re-sentencing    proceedings

consistent with this opinion. 3            On remand, the district court



     3
       Our conclusion that a remand for resentencing is required
makes it unnecessary to consider Flores-Alvarado’s arguments
that the district court failed to consider the relevant 18
U.S.C. § 3553(a) sentencing factors and failed to adequately
explain the sentence imposed.    To the extent the other issues
raised by Flores-Alvarado may be relevant on remand, we briefly
address them.

     Flores-Alvarado argues that the incidents underlying the
Stokesdale and Lexington Seizures were attempts to commit crimes
to which a lower offense level should apply.      See U.S.S.G. §
2X1.1(b)(1) (where offense of conviction is “an attempt,” base
offense level is three levels lower than base offense level
under Guideline governing the completed substantive offense).
By its own terms, however, § 2X1.1 does not apply to attempts,
solicitations, or conspiracies that are “expressly covered by
another offense guideline section.”      U.S.S.G. § 2X1.1(c)(1).
Because the Guideline governing drug offenses expressly covers
attempts and conspiracies, see U.S.S.G. § 2D1.1, § 2X1.1 is
therefore inapplicable to this case. See U.S.S.G. § 2X1.1, cmt.
n.1 (noting that § 2D1.1 expressly covers attempts).

(Continued)
                                      15
must       resolve   the   factual   disputes   surrounding   the   drug

quantities involved in the Stokesdale and Lexington Seizures and

must “make particularized findings” as to whether the challenged

quantities were within the scope of Flores-Alvarado’s agreement

to jointly undertake criminal activity and whether those drug

quantities      were   reasonably    foreseeable   to   Flores-Alvarado.

Bolden, 325 F.3d at 499; see U.S.S.G. § 1B1.3, cmt. n.2. 4



                                                   VACATED AND REMANDED




     We likewise reject Flores-Alvarado’s argument that the life
sentence imposed by the district court violated the Eighth
Amendment. Flores-Alvarado is a repeat drug felon involved in a
large-scale conspiracy who was, by his own admission, involved
in the distribution of thousands of pounds of marijuana. Under
the circumstances of this case, a sentence of life imprisonment
was constitutionally permissible. See United States v. Kratsas,
45 F.3d 63, 68 (4th Cir. 1995) (“[A] mandatory sentence of life
imprisonment without release, as applied to a repeat drug
offender, d[oes] not run afoul of the Eighth Amendment’s
prohibition against cruel and unusual punishment here.”).
       4
       We deny Flores-Alvarado’s request that the case be re-
assigned to a new judge on remand.


                                     16
