                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                  October 14, 2003
                      _____________________
                                                         Charles R. Fulbruge III
                            No. 02-51298                         Clerk
                          Summary Calendar
                       _____________________

                     UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

                               versus

                       JUAN MIGUEL JIMENEZ,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No.: W-02-CR-113-2
_________________________________________________________________

Before JOLLY, JONES, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

     Juan Miguel Jimenez (“Jimenez”) appeals his sentence following

his guilty plea conviction for conspiracy to possess with intent to

distribute more than 50 kilograms of marijuana.       We VACATE the

sentence and REMAND for resentencing.

                                  I

     Investigators   learned    that    Richard   Anthony     Martinez

(“Martinez”), with the assistance of others, was distributing large

quantities of marijuana and cocaine.       Based on a confidential

informant’s tip, investigators followed Joe Torres, Jr. (“Torres”)


     *
      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this opinion should not be published and is not precedent except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.
and John Allen Pena (“Pena”) to 1719 Clark Street in Waco, Texas,

where Torres and Pena briefly entered the residence and left.

Investigators pulled over their car and found 4.88 kilograms of

marijuana    and   26.91    grams   of   cocaine.      Torres    informed     the

investigators that he worked for Martinez, and that Martinez stored

marijuana and cocaine at 1719 Clark Street and at 3621 Trice

Street.   During a search of 1719 Clark Street, investigators found

31.65 kilograms of marijuana, 273.1 grams of cocaine, drug scales,

drug ledgers, and packaging materials. During the search, officers

observed a white, four-door vehicle with a black hood and a black

trunk slowly pass by the house.              According to the Presentence

Investigation      Report   (“PSR”),     Jimenez    rode   in   this   car   with

Martinez and Tony Oliverez past 1719 Clark Street.                     Martinez

remarked that the police were “getting his stuff,” before asking

Jiminez and Tony Oliverez to take him to 3621 Trice Street.

     Officers observed four individuals arrive at 3621 Trice Street

in the same white car that was seen earlier driving past 1719 Clark

Street.     Three males entered the house and left carrying trash

bags, which they loaded into the car.         When police stopped the car,

they found Martinez, Jimenez, Tony Oliverez, and Anna Robles, as

well as 15.51 kilograms of marijuana in the trash bags.                Jimenez,

who was unemployed, possessed $1,440 in cash.

     Martinez told authorities that he had been selling marijuana

since high school and that Luis Sais had been his source.              Martinez

received between 160 and 180 pounds of marijuana from Sais every

                                         2
four to six days for eighteen months.               He received about four

deliveries of cocaine from Sais totaling five kilograms over about

six months.

     Robles    told   investigators       that    Torres,    Frank   and   Tony

Oliverez,    Guillermo   Perez,   Pena,     and    Philip   Soto   distributed

marijuana and cocaine for Martinez.              She said that Jimenez knew

that Martinez distributed illegal drugs, but that Jimenez worked

for Oliverez, and not for Martinez.          She stated that Martinez was

not Oliverez’s source for marijuana.

     Martinez initially told investigators that Jimenez did not

know what was going on at Trice Street and that Martinez wanted to

take the blame for everything.            After first telling authorities

that Jimenez did not “have anything to do with the marijuana,” and

that Jimenez did not know what was going on, Martinez later stated

that over a period of approximately twelve to eighteen months he

“on occasion” had given Jimenez “from ounces to under a pound” of

marijuana.    The PSR states that Martinez informed the case agent

that Jimenez was among the people who worked for him in the

marijuana and cocaine distribution business.

     Jimenez had been arrested two months earlier by state police

for engaging in organized crime, delivery of marijuana.                    When

police found Jimenez and four other individuals in a stalled car,

Jimenez and two other individuals approached the officer while two

others walked down a ditch and across a field.              Although eight to

ten small baggies of marijuana, scales, a firearm, and ammunition

                                      3
were found in the ditch, charges were not filed against Jimenez

because of insufficient evidence.     Jimenez was also arrested one

month later by state police for possession of marijuana under two

ounces.

       Jimenez told the probation officer that on the night of his

arrest, Martinez asked Tony Oliverez to take Martinez and Robles

somewhere, but did not say where he needed to go or why.   He stated

that Martinez instructed him and Oliverez to carry trash bags from

3621 Trice Street to the car without telling them what was inside

the bags.    Jimenez conceded that he smelled marijuana, but stated

that he thought it was because he had been smoking marijuana

earlier that day.    Notwithstanding his guilty plea, Jimenez told

the probation officer that, prior to June 14, he had never done

anything for Martinez or any of the other co-defendants involving

marijuana and that he possessed marijuana only for his own personal

use.

       The PSR recommended that Jimenez be held responsible, not only

for the 15.51 kilograms of marijuana found in the car when he was

arrested, but also for the 31.65 kilograms of marijuana and 273.1

grams of cocaine recovered from 1719 Clark Street.    With a total of

47.16 kilograms of marijuana and a marijuana equivalent of 54.62

kilograms for the cocaine, Jiminez was responsible for 101.78

kilograms of marijuana.    The base offense level for at least 100

kilograms but less than 400 kilograms of marijuana is 26.     With a



                                  4
total offense level of 26 and a criminal history category of I, the

Guidelines range was 63 to 78 months.

      Jimenez objected to being held accountable for the cocaine and

the marijuana at 1719 Clark Street, as Martinez gave varying

accounts of Jiminez’s involvement and Jimenez alleged that he

agreed only to retrieve marijuana from 3621 Trice Street.            Jimenez

did not present any evidence at the sentencing hearing.               Under

cross-examination, the Government’s witness, McLennan County Deputy

Sheriff Evans, conceded that Martinez made conflicting statements

regarding Jimenez’s level of involvement in the conspiracy and that

Martinez had said that he gave Jimenez only relatively small

amounts of marijuana on occasion.           Evans also conceded that the

investigators    previously    had    not    been   aware    of   Jimenez’s

involvement in the criminal activity and did not include any

information about him in the affidavit or the search warrant.

      Jimenez argued that there was no indication of his involvement

in   cocaine   distribution   and    that   the   cocaine   should   not   be

considered in determining his sentence. He argued that the cocaine

and the marijuana at 1719 Clark Street were not part of jointly-

conducted activity in which he agreed to participate and were not

reasonably foreseeable to him, where he merely drove Martinez by

the house and heard him say “they got my stuff.”

      The district court stated:

                I think the evidence is clear that Mr.
           Jimenez was well aware of the scope of the


                                     5
            enterprise for various reasons, driving by the
            first house, statements made by Mr. Martinez.

                 The Court would find that the appropriate
            relevant conduct is that as determined by the
            probation office and adopts those findings of
            the probation office in the report.

The district court sentenced Jimenez to 63 months imprisonment.

Jimenez filed a timely notice of appeal.

                                 II

     Jimenez argues that the jointly undertaken criminal activity

was solely the retrieval of the marijuana from 3621 Trice Street

and that there was no agreement as to the drugs at 1719 Clark

Street.     Pursuant to U.S.S.G. § 1B1.3, Jimenez argues that he

should have been accountable only for the marijuana retrieved from

3621 Trice Street.   He contends that there was no evidence that he

agreed to distribute cocaine. He maintains that the district court

erred by focusing solely on the foreseeability of the Clark Street

drugs without first considering whether the drugs at Clark Street

were part of an agreement to engage in jointly undertaken criminal

activity.    He concedes that foreseeability is not at issue on

appeal.

     Jiminez likens his situation to several examples in the

Guidelines, including the following:

            Defendant R recruits Defendant S to distribute
            500 grams of cocaine. Defendant S knows that
            Defendant R is the prime figure in a
            conspiracy involved in importing much larger
            quantities of cocaine. As long as Defendant
            S’s agreement and conduct is limited to the
            distribution of the 500 grams, Defendant S is

                                  6
           accountable only for that 500 gram amount
           (under subsection (a)(1)(A)), rather than the
           much larger quantity imported by Defendant R.

U.S.S.G. § 1B1.3, comment. n.2(c)(7).

     We review the district court’s application and interpretation

of the Guidelines de novo and its factual findings for clear error.

United States v. Hammond, 201 F.3d 346, 350 (5th Cir. 1999).            “A

factual finding is not clearly erroneous if it is plausible in

light of the record read as a whole.”          United States v. Puig-

Infante, 19 F.3d 929, 942 (5th Cir. 1994).

     “Types and quantities of drugs not specified in the count of

conviction may be considered in determining the offense level.”

U.S.S.G. § 2D1.1 comment. (n.12) (2001).         Where the Guidelines

provide for more than one base offense level, the base offense

level is determined based upon all reasonably foreseeable acts of

others in furtherance of the conspiracy.       Id., § 1B1.3(a)(1)(B).

Jimenez is accountable for the conduct of others that was both:

“(i) in furtherance of the jointly undertaken criminal activity;

and (ii) reasonably foreseeable in connection with that criminal

activity.”    Id., § 1B1.3, comment (n.2).

     The sentencing court “must first determine the scope of the

criminal   activity   the   particular   defendant   agreed   to   jointly

undertake.”     Id.   “In determining the scope of the criminal

activity that the particular defendant agreed to jointly undertake

(i.e., the scope of the specific conduct and objectives embraced by

the defendant’s agreement), the court may consider any explicit

                                   7
agreement or implicit agreement fairly inferred from the conduct of

the defendant and others.”       Id.       If the conduct of others is not

within the scope of the defendant’s agreement, the conduct should

not be included in calculating the defendant’s offense level.

United States v. Evbuomwan, 992 F.2d 70, 73 (5th Cir. 1983).

     The district court must make specific findings regarding all

contested    facts   contained   in    the    PSR   that   are   relevant   to

sentencing.    FED. R. CRIM. P. 32(i)(3).           The district court can

satisfy this requirement by adopting the PSR “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.”              Puig-Infante, 19

F.3d at 943 (internal quotation marks and citations omitted).

Where a defendant objects to a particular finding in the PSR, the

sentencing court must resolve the disputed factual issues by making

specific findings, supported by a preponderance of the evidence.

United States v. Smith, 13 F.3d 860, 867 (5th Cir. 1994).           However,

if the facts in the PSR have an adequate evidentiary basis and the

defendant does not present rebuttal evidence the district court can

adopt the facts in the PSR without inquiry.

     Jimenez’s contention that he should be held accountable for

only the 15.51 kilograms of marijuana removed from 3621 Trice

Street goes too far in the light of his guilty plea to conspiracy

to possess with intent to distribute more than 50 kilograms of

marijuana.    Nonetheless, Jimenez’s assertion that the district



                                       8
court failed to make the requisite finding that his agreement

extended to the distribution of cocaine has merit.

     Jimenez specifically objected to paragraph 27 of the PSR,

which states that Martinez informed the case agent that Jimenez

worked   for     him    “in    the   marijuana        and     cocaine   distribution

business.”       In    his    objection,       Jimenez   argued      that   “there   is

absolutely no basis for holding him accountable for the cocaine”

and that he “was not involved in any way in the distribution of

cocaine, nor was he even aware that Martinez was involved in the

distribution of cocaine.” The probation officer’s response to this

objection, in the Addendum to the PSR, does not directly address

Jimenez’s      contentions       regarding      his    lack     of   involvement      in

Martinez’s cocaine distribution business.                      The Addendum states

merely that Jimenez should be held accountable for the marijuana

and cocaine seized from 1719 Clark Street based on the following:

(1) Jimenez was observed assisting Martinez in the attempt to keep

police from confiscating the marijuana that Martinez had stored at

3621 Trice Street; (2) in his debriefing statement, Martinez

indicated that Jimenez was working for him in the distribution of

illegal drugs; (3) Jimenez had $1440 in cash when he was arrested;

and (4) Jimenez had been arrested twice for marijuana offenses.

     At the sentencing hearing, Jimenez reiterated his objection,

arguing that there is “no indication that Mr. Jimenez was involved

in any way with distributing, selling, possessing cocaine,” and

that the     cocaine     could    not   be     considered      in    calculating     his

                                           9
sentence    because     it    was    not    part     of    any    jointly     undertaken

activity.      The district court overruled the objection, and adopted

the factual findings of the PSR, stating:                  “I think the evidence is

clear   that    Mr.   Jimenez       was    well    aware    of    the    scope      of   the

enterprise     for    various      reasons,       driving    by    the   first      house,

statements made by Mr. Martinez.”                 The district court did not make

any specific finding regarding whether cocaine distribution was

part of the jointly undertaken criminal activity.

     Ordinarily,       the    district       court’s       adoption      of   the      PSR’s

findings would satisfy the requirement that it make specific

findings as to all contested facts.                 See Puig-Infante, 19 F.3d at

943. This court, however, in an analogous case, has found that the

district court erred in failing to make a particularized finding of

an agreement to participate in a criminal scheme.                         Hammond, 201

F.3d at 351-52.

     In    Hammond,     the     probation         office    recommended        that      the

guideline range be determined based upon the total loss resulting

from an embezzling scheme, including losses caused by Hammond as

well as two other individuals.              Id. at 351.          Hammond objected on

the same grounds as Jimenez -- that the losses caused by others

should not be attributed to him absent proof of an agreement

between Hammond and the others to engage in the fraud.                           Id.     The

district court adopted the PSR, reasoning that Hammond should have

reasonably     foreseen      the    other    individuals’         misconduct      without

making a finding that Hammond agreed to participate in the scheme

                                            10
with them.   Id. at 352.   The sentence was vacated and the case was

remanded to the district court for resentencing.

     The only evidence of the existence of an agreement between

Jimenez and Martinez to distribute cocaine is paragraph 27 of the

PSR, which states that Martinez informed the case agent that

Jimenez, among others, worked for him in the marijuana and cocaine

distribution business.     The district court may have inferred from

this general statement the existence of an agreement between

Jimenez and Martinez to distribute both cocaine and marijuana.    If

it did so, the district court’s implicit finding would be based

upon the PSR’s implicit finding that Jiminez agreed to participate

in the distribution of cocaine, which is an impermissible inference

based upon an inference.     See Evbuomwan, 992 F.2d at 74.

     Moreover, the general statement in paragraph 27 of the PSR is

supported by neither more specific information in the PSR nor

sentencing testimony concerning the scope of Jimenez’s activities.

Paragraph 28 of the PSR indicates that Martinez identified Jimenez

as one of the persons who assisted him with the distribution of

marijuana, but omits a specific reference as to cocaine.         The

testimony at the sentencing hearing indicated that Jimenez received

small amounts of marijuana from Martinez “on occasion” for a period

of twelve to eighteen months, but does not mention cocaine.      The

fact that Jimenez rode by 1719 Clark Street with Martinez and heard

Martinez say that the police were “getting my stuff” does not show

an agreement to distribute cocaine.

                                  11
                               III

     Because the record reflects no explicit finding regarding

whether the distribution of cocaine was within the scope of the

criminal activity that Jimenez agreed to undertake, we VACATE

Jimenez’s sentence, and REMAND the case to the district court for

resentencing.

                                            VACATED and REMANDED.




                               12
