                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          FEB 3 1998
                             FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-3394
                                                   (D.C. No. 93-CR-10071)
    MARCEL A. HARDWELL,                                   (D. Kan.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      In this appeal, defendant-appellant Marcel A. Hardwell appeals from his

resentencing following remand in an earlier decision of this court. See United States

v. Hardwell, 80 F.3d 1471 (10th Cir. 1996). On appeal, Marcel asserts that, upon

resentencing, the district court erred in including uncharged drug quantities as

relevant conduct in its calculation of his recommended sentencing range. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for further

proceedings.



                                I. BACKGROUND

      The underlying facts of this case are set forth fully in Hardwell, 80 F.3d 1471,

and, except as necessary for an understanding of our decision, we need not reiterate

them here. In August 1993, Dennis Hardwell, Marcel’s cousin, was the target of a

reverse sting operation in which an undercover agent, posing as a drug courier from

California, attempted to set up the sale of two kilos of cocaine to Dennis for $15,000

a kilo. The sale was arranged to take place in a certain hotel room in Wichita,

Kansas, in which DEA agents had set up video surveillance. Marcel and codefendant

Frederick Bowens met the undercover agent in the hotel room, apparently to

negotiate the sale. After several hours, the undercover agent determined that the

defendants were not going to be able to produce all of the $30,000 needed for the




                                         -2-
buy. She then decided to end the operation and gave an arrest signal to waiting

agents who subsequently arrested Dennis, Marcel, and five others.

      Marcel, Dennis, and four other codefendants were convicted by a jury of

conspiracy to possess two kilograms of cocaine with intent to distribute. Marcel and

Dennis were also convicted of money laundering. Marcel was sentenced to 108

months’ imprisonment. The sentencing court, reasoning that defendants could not

be sentenced for conduct for which they were neither charged nor convicted, declined

to include certain other quantities of cocaine to which the defendants had been

allegedly linked as relevant conduct for purposes of enhancing the sentences.

      Marcel, Dennis, and two codefendants appealed their convictions for

conspiracy to possess two kilograms of cocaine with intent to distribute. In addition,

Dennis and Marcel appealed their convictions for money laundering. 1 The

government cross appealed, contending that the district court erred in excluding

uncharged drug quantities from the base offense level. This court affirmed Marcel’s

conviction on the conspiracy to distribute charge, but remanded on the government’s

cross-appeal for further fact finding on the issue of whether the uncharged drug

quantities should be considered relevant conduct for the purpose of calculating his

base offense level.


1
      This court reversed the money laundering convictions of both defendants.
See Hardwell, 80 F.3d at 1484 (Marcel); United States v. Hardwell, 88 F.3d 897,
898 (10th Cir. 1996) (Dennis).

                                         -3-
      Following a resentencing hearing on remand, the district court determined that

under the sentencing guidelines the four and one-half kilos of cocaine seized in two

uncharged incidents should be considered relevant conduct for purposes of

determining Marcel’s relative base offense level. Marcel appeals this decision.



                                II. DISCUSSION

      “We review for clear error district court factual findings regarding drug

quantities and whether certain conduct is relevant conduct under the guidelines.”

United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994). The government has

the burden of proving the quantity of drugs for sentencing by a preponderance of the

evidence. See id. “The information upon which the district court relies must contain

sufficient indicia of reliability.” United States v. Washington, 11 F.3d 1510, 1516

(10th Cir. 1993) (further quotation omitted).

      When determining a sentencing range, the sentencing guidelines require that

a sentencing court include as relevant conduct all acts that were part of the same

course of conduct or common scheme or plan as the offense of conviction,

“regardless of whether the defendant was convicted of the underlying offenses

pertaining to the additional amounts.” United States v. Roederer, 11 F.3d 973, 978-

79 (10th Cir. 1993) (further quotation omitted). In determining whether certain

offenses are relevant conduct, “‘the sentencing court is to consider such factors as


                                        -4-
the nature of the defendant’s acts, his role, and the number and frequency of

repetitions of those acts, in determining whether they indicate a behavior pattern.’”

Id. at 979 (quoting United States v. Santiago, 906 F.2d 867, 872 (2d Cir. 1990)).

“Similarity, regularity, and temporal proximity are the significant elements to be

evaluated.” Id.

      Whether acts are relevant conduct for a participant in a conspiracy is

determined by reference to “all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by the defendant; and

. . . all reasonably foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” U.S.S.G. §§ 1B1.3(a)(1)(A), 1B1.3(a)(1)(B).

When making a relevant conduct determination in relation to a conspiracy,

      [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).

Id. § 1B1.3, Application Note 2.

      In determining whether a quantity of drugs should be attributed to a member

of a conspiracy, the sentencing court must determine the defendant’s own relevant

conduct. See United States v. Torres, 53 F.3d 1129, 1143 (10th Cir. 1995). Relevant

conduct for purposes of sentencing is not necessarily the same for every participant


                                        -5-
in a conspiracy. See id. at 1143-44; U.S.S.G. § 1B1.3, Application Note 2. Thus,

the proper inquiry of the sentencing court focuses on three questions: (1) when the

defendant became a participant in the conspiracy; (2) whether the conduct being

considered as relevant conduct for sentencing purposes was conduct in furtherance

of the jointly undertaken criminal activity; and (3) whether that conduct was

reasonably foreseeable by the defendant. See United States v. Barragan, 915 F.2d

1174, 1179 (8th Cir. 1990); see, e.g., United States v. Roberts, 14 F.3d 502, 522

(10th Cir. 1993) (stating that for sentencing purposes, each conspirator is to be

attributed the quantity of drugs reasonably foreseeable or within the scope of the

conspiratorial agreement); United States v. Carreon, 11 F.3d 1225, 1231 n.17 (5th

Cir. 1994) (setting forth findings required on remand to determine drug quantity

attributable to a conspirator).

      The four and one-half kilos of cocaine determined to be relevant conduct for

the purpose of calculating Marcel’s base offense level were seized during two

previous incidents. The first incident involved a traffic stop between Houston and

Dallas, Texas, in January 1993, wherein the Texas police seized two and one-half

kilos of cocaine from a van Dennis was driving. Passengers in the van included

Dennis’ half brother, Kenny Ray Wright, his brother-in-law, Brian Stallings, and a

man identified as Sean McDaniel.      The government contends that Dennis was

traveling from Marcel’s mother’s home in Houston at the time of the arrest.


                                       -6-
      During the second incident in April 1993, DEA agents intercepted a drug

courier from Arizona carrying two kilograms of cocaine who claimed he was

delivering the cocaine to a person identified as James Kevin Hail. When Mr. Hail

was arrested in Wichita attempting to take possession of the vehicle containing the

cocaine, he agreed to cooperate with the DEA in a controlled delivery of the cocaine

to Dennis, who Mr. Hail claimed he had sold cocaine to in the past. The delivery

failed when, while recording a call from Mr. Hail to Dennis’ home, the line was

inadvertently left open after completion of the call, enabling a person or persons at

Dennis’ home to hear the DEA play back the recording. Pursuant to his own

admission, upon discovery that the telephone call was being recorded, Marcel went

to Mr. Hail’s hotel room and confronted him as to why he was attempting to set up

Dennis. At trial, Marcel testified that he went to Mr. Hail’s hotel room because he

was curious as to what was going on. See R. Vol. XI at 1290. We consider it worthy

of mention that, although Mr. Hail testified before the grand jury in this case, he did

not testify at Marcel’s trial or at either sentencing hearing.

      The government argued at resentencing, that statements made by Marcel to the

undercover agent during the reverse sting operation prove Marcel’s involvement in

the prior incidents. According to the testimony of the undercover agent at trial,

during several hours of posturing and negotiations with the undercover agent, Marcel

bragged that “they were all crew . . . doing a least a kilo a day,” id. Vol. V at 181,


                                          -7-
and although “they had already lost four kilos of cocaine and $100,000,” they were

still able to stay in business, id. at 246, 249. Marcel argued that this was “puffing,”

or bragging in order to impress the undercover agent.

      The district court found that Dennis’ involvement in the incident in Texas in

January 1993, and in the failed controlled delivery in April 1993, could not be “sheer

coincidence.” Id. Vol. II at 36. The court then concluded that in light of what it had

read and heard, “there was, in fact, an organization that was at work and they were

involved in trafficking, and that qualifies as relevant conduct.” Id. at 36-37. The

court then found these same findings to be equally applicable to Marcel and

incorporated them into Marcel’s sentencing. See id. at 54.

      In remanding, this court stated that “Marcel’s own statements could meet [the

relevant conduct] requirement, and could support a finding that he was involved in

the two earlier incidents.” Hardwell, 80 F.3d at 1499. We further opined that

Marcel’s statements regarding the loss of four kilos of cocaine, his offer to give up

a Houston source after his arrest, and his admission that he overheard the recorded

telephone conversation prompting his confrontation of James Hail following the

failed controlled delivery attempt to Dennis “suggest[]” and “tend to show” his

involvement in the April 1993 incident. Id. at 1499-1500. We then concluded that,

because the district court made no findings regarding Marcel’s involvement in the

two incidents, a remand for further fact finding was appropriate.


                                         -8-
      At the resentencing hearing, the district court heard testimony from William

Crawford, a narcotics detective with the Sedgwick County, Kansas Sheriff’s

Department, and arguments from the government and counsel for both Dennis

Hardwell and Marcel. As to Dennis, the court stated:

      I think that in this case the Tenth Circuit gave us a terrific amount of
      direction in terms of what the Court should be looking for at
      resentencing, and the Tenth Circuit indicated that the arrest in the van
      in Texas could be relevant conduct. The Tenth Circuit determined that
      the interception by the DEA of the drugs coming into Kansas could be
      relevant conduct. I believe that the evidence here bears that out, and as
      I stated earlier, I am making a finding that those two incidents are, in
      fact, relevant conduct, and for purposes of sentencing, that six and a
      half kilograms of cocaine is the appropriate amount to be used in
      determining sentence.

R. Vol. II at 50.

      In addressing counsel’s objections prior to actually resentencing Marcel, the

court stated:

      Mr. Whitehead, I frankly tend to agree with you that the evidence is a
      little thinner with respect to the January of ‘93 stop of the van down in
      Texas as it relates to Marcel Hardwell, and I agree with you that it’s a
      little thinner with respect to the April of ‘93 interception by the DEA
      of the drugs coming into Kansas, but notwithstanding the
      characterization that you have made that Mr. Hardwell’s simply
      attempting to impress the seller on the videotape that we saw, it’s very
      difficult for me to ignore the words that came out of his own mouth, for
      whatever reason, in terms of the amount of business that their group had
      been doing and over what period of time. Obviously in terms of
      relevant conduct, when one is dealing with a group of people and family
      or not, there’s no question but what there were members of the family
      present when illegal activity was taking place. I can’t overlook that,
      and I think that there is sufficient evidence for me to conclude and, in
      fact, I think it’s more probable than not that Marcel Hardwell was

                                        -9-
       involved as part of an organization, and it was foreseeable those events
       that took place in Texas in January of ‘93 and when the delivery was
       intercepted in April of 1993, and I think we made enough of a record in
       terms of findings that I am going to deny objection number one.

Id. at 71-72.

       When resentencing Marcel, the court stated:

       The findings I made with respect to the 6.5 kilograms of cocaine being
       appropriate to use for purposes of sentencing in Dennis Hardwell’s case
       are equally applicable and incorporated into the Court’s comments in
       the sentencing of Mr. Marcel Hardwell, and because Mr. Marcel
       Hardwell has been present with counsel throughout the sentencing
       proceedings this morning, the matters that we took up jointly, as well
       as Mr. Dennis Hardwell’s sentencing, I don’t feel compelled to run
       through those same findings again, but simply incorporate them at this
       time in my sentencing.

Id. at 54.

       In United States v. Melton, No. 97-6028, 1997 WL 768381 (10th Cir. Dec. 15,

1997), the district court deemed $30 million worth of counterfeit Federal Reserve

notes produced in a reverse sting operation relevant conduct for sentencing purposes

even though the notes were printed after the defendant was arrested, and the

defendant took no part in the sting operation. In reversing for resentencing, this

court held:

              The district court failed to make such “particularized findings”
       and misapplied the sentencing guidelines by improperly assuming that
       the scope of the criminal activity [the defendant] agreed to jointly
       undertake was the same as the scope of the entire conspiracy, including
       the reverse sting. We need not remand for further proceedings on the
       scope of [the defendant’s] particular agreement, however, because the
       facts underlying the determination are undisputed and do not carry the

                                        - 10 -
       government’s burden of establishing [the defendant’s] accountability
       for the activity that took place after he was arrested.

Id. at *4.

       In this case, it is clear that the court failed to make individualized findings as

to Marcel. See United States v. Milledge, 109 F.3d 312, 316 (6th Cir. 1997) (holding

that under the sentencing guidelines, “differentiation between coconspirators” and

“particularized sentencing” are required) (further quotation omitted); United States

v. Meacham, 27 F.3d 214, 217 (6th Cir. 1994) (holding the district court erred in

holding all coconspirators accountable for all the drugs channeled through the

conspiracy without making individualized findings regarding each coconspirator’s

participation). It would at first appear that the government failed to meet its burden

of proving by a preponderance of the evidence Marcel’s accountability for the

uncharged drug amounts previously seized, and, therefore, pursuant to our holding

in Melton, 1997 WL 768381 at *4, this judgment could be reversed and the case

remanded for resentencing. We believe, however, that the district court’s reasoning

in resentencing Marcel may have been predicated on its perception that our

comments in Hardwell, 80 F.3d at 1499-1500, constituted more definitive direction

on remand than was intended.

       Our discussion in Hardwell of what may be considered relevant conduct was

not intended to usurp the district court’s fact finding purview. See United States v.

Guzman, 864 F.2d 1512, 1521 (10th Cir. 1988) (“It is ‘not the function of the

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appellate court to try the facts or substitute for the trial court in the determination of

factual issues.’”) (quoting Sabol v. Snyder, 524 F.2d 1009, 1011 (10th Cir. 1975)).

Therefore, we determine, Melton notwithstanding, that the appropriate course of

action is to remand to the district court for further findings of fact. In so doing, we

direct the sentencing court to make specific and individualized findings based upon

a careful inquiry into the nature of the incidents in question, and the extent of

Marcel’s involvement. See 1997 WL 768381 at *3 (sentencing court must first

determine “‘the scope of the specific conduct and objectives embraced by the

defendant’s agreement’”) (quoting U.S.S.G. § 1B1.3, Application Note 2); see also

Roberts, 14 F.3d at 522 (“‘The drug amount attributable to a defendant for purposes

of sentencing is not established merely by looking to the amount of drugs involved

in the conspiracy as a whole,’” but to “‘the quantity of drugs which he reasonably

foresaw or which fell within “the scope” of his particular agreement with the

conspirators.’”) (quoting United States v. Castaneda, 9 F.3d 761, 770 (9th Cir. 1993))

(further quotation omitted); Torres, 53 F.3d at 1144 (“The touchstone under § 1B1.3

is whether the quantities were reasonably foreseeable to the coconspirators in light

of the nature, extent, and purpose of the conspiracy”). The court also should be

cognizant of the need for distinction between what Marcel may have known of the

activities of his coconspirators, and what he actually participated in or could have

reasonably foreseen as criminal conduct in furtherance of the conspiracy of which


                                          - 12 -
he was a participant. See U.S.S.G. § 1B1.3, Application Note 2 (relevant conduct

does not include offenses undertaken before defendant joined the conspiracy, “even

if the defendant knows of that conduct”).

      In remanding this case, we make no judgment as to the correctness of Marcel’s

sentence, recognizing that after further inquiry and fact finding, his sentence may

very well stand. We only determine that without specific findings of fact as to

Marcel’s role in the incidents deemed relevant conduct, we are unable to adequately

review the sentencing court’s determination. Therefore, the judgment of the United

States District Court for the District of Kansas is REVERSED, and the case is

REMANDED for further fact finding, and if appropriate, resentencing.



                                                   Entered for the Court


                                                   Michael R. Murphy
                                                   Circuit Judge




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