           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 29, 2009

                                       No. 07-51300                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JUAN CARLOS ARAUJO-CONTRERAS, also known as Juan Carlos Araujo

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                                 No. 6:07-CR-4-3


Before JONES, Chief Judge, and KING and ELROD, Circuit Judges.
PER CURIAM:*
       Juan    Carlos     Araujo    pleaded     guilty    to   conspiring     to   distribute
methamphetamine from March 2006 to December 20, 2006, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(c), and 846. At Araujo’s sentencing hearing, his
attorney stated that Araujo had only participated in the conspiracy on December
20, 2006 and objected to factual inaccuracies in the presentence report. The
district court adopted the presentence report’s drug-quantity calculation, which
included both the amount of methamphetamine with which Araujo was directly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
involved on December 20th (1.1 kilograms) and “relevant conduct” from the
conspiracy’s previous methamphetamine sales (6.4 kilograms).              Araujo was
sentenced to 210 months’ imprisonment followed by three years of non-reporting
supervised release. Araujo now argues on appeal that the district court clearly
erred when calculating his drug quantity because the evidence did not show that
the 6.4 kilograms was within the scope of his agreement or reasonably
foreseeable to him. For the following reasons, we affirm the judgment of the
district court.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      In March 2006, Officer Richard Reiger of the Texas Department of Public
Safety (“DPS”) learned that an organization in Dallas was trafficking
methamphetamine. Officer Reiger, acting undercover, subsequently bought
methamphetamine from a contact within the methamphetamine trafficking
organization.      Shortly thereafter, Reiger and Juan Lopez Gomez, another
member        of   the   organization,   agreed   to   transport   five   pounds   of
methamphetamine to North Carolina in a television set on December 20, 2006.
      On December 20, Officer Reiger arranged for Gomez to meet him at a
parking lot in Mesquite, Texas. DPS officers also set up surveillance of Gomez
at an apartment complex. Gomez left the complex accompanied by defendant-
appellant Juan Carlos Araujo and Mauricio Joel Ibarra. Gomez put a television
in the trunk of a Honda, and Araujo drove the Honda to the parking lot. Once
all three arrived in separate cars, Gomez removed the television, and he and
Araujo got into Officer Reiger’s car with the television. Officers then arrested
Ibarra, Gomez, and Araujo, finding 1.1 kilograms of methamphetamine in the
television.
      On that same day, officers also searched Ibarra’s apartment—apartment
301—at the complex. Inside, the officers discovered U.S. currency totaling
$142,897; 50.18 grams of methamphetamine; digital scales; and guns. The

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officers also found two notebooks outside of apartment 301, each containing
ledgers that detailed millions of dollars of methamphetamine transactions. The
officers additionally arrested Modesto Contreras Araujo (“Modesto”), Araujo’s
brother, who was inside apartment 301.
      Officers then searched apartment 305, which belonged to Modesto. Inside
the apartment, police found an empty television box that contained travel
instructions labeled “nor Carolina,” as well as digital scales and guns. An
occupant of the apartment stated that Modesto had stored methamphetamine
in the apartment the previous day and had just removed it.
      In January 2007, Araujo and six others, including Ibarra and Modesto,
were charged with conspiracy to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(c), and 846. Araujo pleaded guilty to conspiring to
distribute methamphetamine from March 2006 to December 20, 2006. At the
plea hearing, the prosecutor read a factual basis that Araujo’s attorney said was
“factually accurate” to “the extent that it details Mr. Araujo’s conduct.”
      In the presentence report (“PSR”), the parole officer recommended a base
offense level of 36 under United States Sentencing Guideline § 2D1.1(c)(2). This
offense was determined based on the officer attributing 7.5 kilograms of
methamphetamine to Araujo (1.1 kilograms in the television set plus 6.4
kilograms of methamphetamine). The 6.4 kilograms were estimated based on
the theory that the $142,897 found in apartment 301 represented proceeds from
prior drug sales. Araujo also received a two-level increase because of firearm
possession and a two-level increase because the methamphetamine was
imported from Mexico. The probation officer thus recommended a total offense
level of 40, with a Criminal History Category of I because Araujo did not have
any prior criminal convictions. This led to an advisory sentencing range of
292–365 months’ imprisonment.



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      Araujo objected to, inter alia, the PSR’s drug-quantity calculation and to
its failure to reduce the sentence for acceptance of responsibility. He specifically
asserted that he only participated in the conspiracy on December 20, 2006, the
date of the arrest, and that he should not be held accountable for the money
found in apartment 301. The probation officer responded to this objection in an
addendum, stating that Araujo was responsible for the currency in apartment
301 because he had pleaded guilty to a conspiracy on the dates listed in the
indictment, March 2006 to December 20, 2006. The addendum also stated that
Araujo had a key to apartment 301 on his key ring and that this suggested he
was more involved than simply “being in the wrong place at the wrong time.”
The officer also noted Araujo’s relation to Modesto and that the DPS officers had
seen Araujo, Gomez, and Ibarra leaving the apartment complex together.
      At the sentencing hearing, Araujo reurged his objection. His attorney
stated:
      Mr. Araujo, what he has told me, only recently came to this country
      or whatever and just recently got involved with these fellows. He
      was not sure. He knew something was going on, not sure of the
      depth of it. I understand a conspiracy you don’t have to understand
      all that. He knew he was doing wrong. . . . About the money part
      of it, that has to do with his recently coming into the country. Once
      again, there’s no way to determine how much money was earned
      before at—when he entered the conspiracy. The problem with
      undocumented aliens is there is no documentation to show when he
      became involved in this or whatever.
Araujo’s attorney also noted that the PSR was factually inaccurate because
Araujo possessed the key to apartment 305 and not apartment 301, where the
money and drugs were found. The prosecutor agreed that the PSR was incorrect
insofar as it stated that Araujo had a key to apartment 301. The prosecutor also
acknowledged that the PSR falsely stated that Araujo was seen leaving
apartment 301; in fact, the officers conducting surveillance were outside the
apartment complex and could not see the doors to 301 and 305. Nonetheless, the

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prosecutor argued that Araujo should be held accountable for the currency
because the individuals in both apartments appeared to be working together.
       The district court adopted the PSR drug-quantity calculation and
sentenced Araujo to 210 months’ imprisonment followed by three years of non-
reporting supervised release.1 Araujo timely appealed.
                            II. STANDARD OF REVIEW
       “Findings of fact used in calculating the [Sentencing] Guidelines range are
reviewed for clear error, while interpretation of the Guidelines themselves is
reviewed de novo.” United States v. Fernandez, 559 F.3d 303, 319 (5th Cir.
2009). “The district court’s determination of the amount of drugs attributable
to a defendant is a finding of fact reviewed for clear error.” United States v.
Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998). If a district court’s finding is
plausible in light of the record as a whole, there is no clear error. United States
v. Solis, 299 F.3d 420, 455 (5th Cir. 2002). A factual finding is clearly erroneous
when, “although there is evidence to support it, the reviewing court based on all
the evidence is left with the definitive and firm conviction that a mistake has
been committed.” Houston Exploration Co. v. Halliburton Energy Servs., Inc.,
359 F.3d 777, 779 (5th Cir. 2004) (internal quotation marks omitted).
                                   III. DISCUSSION
       Pursuant to § 2D1.1(a)(3) of the Sentencing Guidelines (the “Guidelines”),
the quantity of drugs involved in a drug trafficking offense determines the
offense level of a defendant who has been convicted of such a crime.2 See U NITED

       1
         The court reduced the sentence from that recommended in the PSR because it
granted Araujo’s other objection regarding acceptance of responsibility.
       2
         Araujo preliminarily asserts that criminal liability in a conspiracy is a distinct
determination from the amount of drugs attributable as relevant conduct to a conspirator at
the time of sentencing. The government does not contest this point, and this court has often
recognized this distinction. See, e.g., United States v. Ruiz, 52 F.3d 531, 540 (5th Cir. 1995)
(“[A] sentencing court cannot assume that all acts of each participant in a jointly undertaken
criminal activity were reasonably foreseeable to all participants.”); United States v.

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S TATES S ENTENCING G UIDELINES M ANUAL § 2D1.1(a)(3). This quantity of drugs
includes both drugs with which the defendant was directly involved and drugs
that are attributed to the defendant as part of his “relevant conduct” in a
conspiracy. Id. § 1B1.3(a)(1)(B). Pursuant to § 1B1.3(a)(1)(B) of the Guidelines,
“relevant conduct” includes “all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity.” Id. “Relevant
conduct” is only prospective and therefore “cannot include conduct occurring
before a defendant joins a conspiracy.” See United States v. Carreon, 11 F.3d
1225, 1235–36 (5th Cir. 1994).
       Furthermore, under Rule 32 of the Federal Rules of Criminal Procedure,
a sentencing court making a determination regarding a disputed portion of a
PSR must either “rule on the dispute” or conclude that such a ruling is
unnecessary. F ED R. C RIM P. 32(i)(3)(B). The court may determine that a ruling
is unnecessary if “the matter will not affect sentencing” or if “the court will not
consider the matter in sentencing.” Id. A court’s adoption of a PSR complies
with Rule 32 when “the findings in the PSR are so clear that the reviewing court
is not left to ‘second-guess’ the basis for the sentencing decision.” Carreon, 11
F.3d at 1231. This court has often recognized that a district court may make
implicit findings when adopting a PSR and need not make a “catechismic
regurgitation of each fact determined.” See United States v. Sherbak, 950 F.2d
1095, 1099 (5th Cir. 1992); see also, e.g., United States v. Rodriguez-Rodriguez,
388 F.3d 466, 468 n.8 (5th Cir. 2004); United States v. Duncan, 191 F.3d 569, 575
(5th Cir. 1999). In other words, when (as here) a district court explicitly adopts
a PSR’s findings of fact, it may have implicitly “weighed the positions of the
probation department and the defense and credited the probation department’s



Puig-Infante, 19 F.3d 929, 942 (5th Cir. 1994) (“[R]easonable foreseeability does not follow
automatically from proof that the defendant was a member of the conspiracy.” (internal
quotation marks and alteration omitted)).

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facts.” Sherbak, 950 F.2d at 1099. For instance, in Duncan, this court ruled that
the district court did not clearly err when it adopted a PSR’s finding that fifty
kilograms of cocaine could be attributed to a police officer complicit in a New
Orleans cocaine trafficking conspiracy. 191 F.3d at 577. The officer argued that
the district court’s sentence was clear error because there was no evidence that
he knew of the specific quantity of drugs or that he knew that the quantity was
“significant.” Id. at 575. The court rejected such arguments because the record
contained evidence that the drug trafficking had lasted for an extended period
of time and that the officer “fully grasped that a significant quantity of drugs
was involved.” Id. at 576. The court specifically noted that Duncan’s alleged
lack of awareness about the “exact quantity of drugs at issue” was unavailing
because it would permit similar offenders to “avoid punishment for actual drug
quantities involved through studied ignorance.” Id. at 577.
      In the present case, Araujo argues that he joined the conspiracy on
December 20, 2006, and thus the earlier 6.4 kilograms of methamphetamine is
not attributable to him as relevant conduct. It is true that the court did not
explicitly rule on when Araujo joined the conspiracy, and the PSR did contain
errors regarding both the apartment key in Araujo’s possession and the
surveillance outside of the apartment complex.          The government itself
concedes—and we agree—that “an express finding of when a defendant joined
a conspiracy and what was foreseeable is preferred.”
      However, as noted above, this court has often recognized that a district
court adopting a PSR need not make a “catechismic regurgitation of each fact
determined” and that implicit findings are not clear error when there is no need
to “second-guess” the basis for the sentencing decision. In the present case, the
district court’s ruling that the additional 6.4 kilograms were foreseeable and
within the scope of his agreement appears plausible in light of the record as a
whole.   The record here shows that Araujo was a full participant in the

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methamphetamine transaction on December 20, suggesting that he had
familiarity with the process of such a drug transaction. He was seen leaving the
apartment complex and possessed a key to apartment 305, the apartment that
had stored methamphetamine and contained the television box, “nor Carolina”
travel directions, scales, and firearms. This apartment’s probable proximity to
apartment 301, which contained the $142,897, also makes it plausible that
Araujo had some involvement with the high volume of methamphetamine sales
that garnered that large sum of money. Modesto, Araujo’s brother, was also in
apartment 301 at the time the officers searched it, yet he was living in
apartment 305; such inter-apartment movement suggests a strong link between
the two apartments by a member of Araujo’s family. In this way, the district
court’s finding here is comparable to that of the court in Duncan, where the
various pieces of evidence in the record “amply support[ed] the finding that
Duncan fully grasped that a significant quantity of drugs was involved.”
Similarly, the various pieces of evidence in the record amply support the finding
that Araujo was involved in the conspiracy when it sold 6.4 kilograms of
methamphetamine. Indeed, the district court either implicitly rejected Araujo’s
attorney’s claim that he had only recently joined the conspiracy or, if it accepted
that Araujo was a recent participant, implicitly found that the 6.4 kilograms had
been sold in a “recent” transaction. The district court thus did not clearly err.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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