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

                                                 FILED
                                                                           August 6, 2009

                                       No. 08-10738                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JUAN VALENZUELA-CONTRERAS

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:07-CR-20


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       In March 2006, defendant-appellant Juan Valenzuela-Contreras shot and
killed Vernon Harris during a dispute over payment for marijuana. When police
subsequently arrested Valenzuela in his home, they seized, inter alia, heroin,
cocaine, marijuana, and numerous firearms.                Valenzuela pleaded guilty to
Harris’s murder in state court, and a federal jury subsequently found Valenzuela
guilty of: (1) possession of heroin with the intent to distribute in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B) (count one); (2) possession of cocaine with the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (count
two); and (3) possession of a firearm in furtherance of drug trafficking in
violation of 18 U.S.C. § 924(c) (count three). Though Valenzuela was never
charged with possession of marijuana with intent to distribute, the presentence
report stated that the marijuana transaction involving Harris was relevant
conduct pursuant to United States Sentencing Guideline § 1B1.3 and that
Harris’s murder was a harm resulting therefrom, also in accordance with
§ 1B1.3. The district court agreed and therefore cross referenced the murder
pursuant to § 2D1.1(d)(1), ruling that Valenzuela’s total offense level was 43.
Valenzuela never objected to his sentence.
      Valenzuela timely appealed, arguing that the district court plainly erred
when it determined that the marijuana transaction and murder were relevant
conduct pursuant to § 1B1.3. For the following reasons, we affirm.
              I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
      On or before March 20, 2006, Juan Valenzuela-Contreras “fronted”1
approximately 25 pounds of marijuana to Pablo Escobar. Escobar fronted the
marijuana to Vernon Harris. On March 20, 2006, Valenzuela, Escobar, and
Federico San Vallejo traveled to Harris’s residence in Dallas, Texas, in order to
collect part of the $8,000 that he owed to Valenzuela as payment for the
marijuana originally fronted to Escobar. Harris said that he did not have the
money and refused to sign over his Ford Expedition as payment. Valenzuela
then shot Harris at least three times in the body and head. Valenzuela, Escobar,
and Vallejo fled the scene before police arrived. The following day, Harris died
from the gunshot wounds.




      1
          “Fronting” is the advancing of drugs before payment is made.

                                             2
      Escobar subsequently told law enforcement officers that Valenzuela had
shot Harris. Dallas officers identified Valenzuela’s residence at 5301 Greenwood
Way in North Richland Hills, Texas.         The police received information that
Valenzuela used the residence to stash drugs, and a state warrant was later
obtained for Valenzuela’s arrest.
      As the officers were preparing to execute the warrant, they saw Edgar
Delgado and Vallejo exiting the residence. The two men were detained, and soon
thereafter the police found Valenzuela in the residence.        After the officers
obtained a search warrant to search the residence, they seized, inter alia, heroin,
marijuana, cocaine, three digital scales, drug ledgers, $24,461 in U.S. currency,
and a 9mm pistol. Valenzuela was arrested on the outstanding state murder
warrant and for possession of cocaine and heroin with the intent to distribute.
A forensic chemist later determined that the police had seized 654.8 net grams
of heroin (charged in count one), 368.5 net grams of cocaine (charged in count
two), and 150.3 net grams of marijuana (not charged).
      During a post-arrest interview, Valenzuela admitted his involvement in
the murder and gave a detailed explanation about what occurred at Harris’s
residence. He stated that Escobar had asked to borrow $8,000, which Escobar,
in turn, planned to lend to Harris. Valenzuela said that he, Escobar, and Vallejo
had gone to Harris’s residence to collect $4,000 of the $8,000 debt that was due,
but that Harris did not have the money. He admitted that he pulled a handgun
from his waistband and shot Harris three or four times after Harris started
pushing him. Valenzuela also acknowledged that Harris did not have a weapon
and that the 9mm pistol that was found at the residence was the weapon he used
to shoot Harris.
      Valenzuela was later interviewed by agents from the Drug Enforcement
Administration. Valenzuela admitted, inter alia, that: (1) the drugs seized from
his residence belonged to him; (2) he was being paid $1,000 per week to allow a

                                        3
known drug dealer to store the drugs at his residence; (3) the drug dealer had
dropped off drugs at his residence three or four times; (4) each time the amount
of drugs consisted of less than one kilogram of cocaine or heroin; (5) he had as
much as $20,000 at a time in the residence; (6) the drug dealer’s brother-in-law
would store six or seven ounces of hydroponic marijuana at the residence; and
(7) the drugs were only stored at the residence and were not sold from there.
B. Procedural Background
      In state court, Valenzuela pleaded guilty to Harris’s murder.              At
sentencing, Vallejo testified that: (1) Harris’s murder was a drug-related killing;
(2) Valenzuela fronted the marijuana to Escobar who, in turn, fronted the drugs
to Harris; and (3) Valenzuela killed Harris because Harris failed to pay the
money that he owed to Valenzuela for the marijuana. In federal court, on March
31, 2008, after Valenzuela pleaded not guilty, a jury found him guilty of: (1)
possession of heroin with the intent to distribute in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B) (count one); (2) possession of cocaine with the intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (count two); and (3)
possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C.
§ 924(c) (count three).
      The presentence report (“PSR”) initially calculated a guideline offense level
of 32 (151–188 month sentence) due to Valenzuela’s possession of heroin,
cocaine, and marijuana on March 21, 2006. The report then cross referenced
Harris’s murder under U.S.S.G. § 2D1.1(d)(1), arriving at a total offense level of
43 with a criminal history category of I. Specifically, the PSR stated that both
Harris’s murder and Valenzuela’s marijuana transaction with Escobar and
Harris were relevant conduct under § 1B1.3:
      Pursuant to USSG § 1B1.3(a)(1)(A)&(2), Valenzuela-Contreras’
      drug-related activities in reference to Escobar and Harris are
      considered relevant conduct and all part of the same course of
      conduct or common scheme or plan as the offense of conviction. In

                                         4
      addition, Valenzuela-Contreras’ murder of Harris was a harm that
      resulted from the acts and omissions of his relevant conduct and
      Harris’ murder was a harm that was the object of his
      (Valenzuela-Contreras’) drug-related activities. USSG § 1B1.3(a)(3).
(PSR at ¶ 21.) The court ordered a 474-month term of imprisonment as to count
one, a 240-month term as to count two to run consecutively to the sentence
imposed for count one, and a 60-month term as to count three to run
consecutively to the sentences imposed as to counts one and two (a total of 774
months). The court further ordered that Valenzuela’s sentence run concurrently
with the sentence that he was serving for his state conviction.          Notably,
Valenzuela made no objection to his sentence.
      Valenzuela timely appealed his sentence. He primarily argues that his
marijuana transaction was not relevant conduct under § 1B1.3(a)(2) and thus
that Harris’s murder was not a “harm” under § 1B1.3(a)(3).
                        II. STANDARD OF REVIEW
      Generally, this court reviews a district court’s interpretation and
application of the United States Sentencing Guidelines (the “Guidelines”) de
novo and its factual findings for clear error. See United States v. Juarez-Duarte,
513 F.3d 204, 208 (5th Cir. 2008). Because Valenzuela did not object to the
district court’s application of the cross reference, we review for plain error.
United States v. Simmons, 568 F.3d 564, 566 (5th Cir. 2009) (“If . . . the
procedural objection was not presented in the district court, our review is for
plain error only.”).   “If an error is not properly preserved, appellate-court
authority to remedy the error . . . is strictly circumscribed.” Puckett v. United
States, 129 S. Ct. 1423, 1428 (2009). Under this standard, we reverse if there is
an error that “is plain and affects substantial rights.” United States v. Olano,
507 U.S. 725, 732 (1993) (internal quotation marks and alteration omitted).
“[T]he legal error must be clear or obvious, rather than subject to reasonable
dispute.” Puckett, 129 S. Ct. at 1429. If we determine that such error exists, we

                                        5
“may then exercise [our] discretion to notice a forfeited error but only if . . . the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.”    United States v. Cotton, 535 U.S. 625, 631 (2002) (internal
quotation marks and alterations omitted).


                                 III. DISCUSSION
      Section 2D1.1 of the Guidelines governs sentencing for drug trafficking
and therefore applies to Valenzuela’s sentence for his heroin and cocaine
convictions. Subsection (d)(1), entitled “Cross References,” provides that “[i]f a
victim was killed under circumstances that would constitute murder under 18
U.S.C. § 1111,” 2 courts should apply § 2A1.1 “if the resulting offense level is
greater than that determined under this guideline.” Section 2A1.1 establishes
the base offense level for first degree murder at 43. In the present case, the
district court applied this § 2D1.1(d)(1) cross reference in order to establish
Valenzuela’s base offense level at 43. Valenzuela now challenges the application
of this cross reference.
      “[W]hether [the § 2D1.1(d)(1)] cross-reference should be applied depends
on whether the conduct to which the cross-reference refers is ‘relevant conduct’”
pursuant to § 1B1.3. United States v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002).
In relevant part, subsection (a) states:
      [C]ross references in Chapter Two . . . shall be determined on the
      basis of the following:
      (1)(A) all acts and omissions committed, aided, abetted, counseled,
      commanded, induced, procured, or willfully caused by the
      defendant . . .
      ...



      2
          18 U.S.C. § 1111 defines murder as “the unlawful killing of a human being with
malice aforethought.”

                                           6
      that occurred during the commission of the offense of conviction, in
      preparation for that offense, or in the course of attempting to avoid
      detection or responsibility for that offense;
      (2) solely with respect to offenses of a character for which § 3D1.2(d)
      would require grouping of multiple counts, all acts and omissions
      described in subdivisions (1)(A) and (1)(B) above that were part of
      the same course of conduct or common scheme or plan as the offense
      of conviction;
      (3) all harm that resulted from the acts and omissions specified in
      subsections (a)(1) and (a)(2) above, and all harm that was the object
      of such acts and omissions . . . .
U.S.S.G. § 1B1.3(a). Thus, the central question before us is whether the district
court plainly erred when it ruled that Valenzuela’s marijuana transaction and
Harris’s murder were relevant conduct under § 1B1.3.
      Before proceeding with our analysis, we find it necessary to clarify the
PSR’s sentencing calculation because Valenzuela incorrectly characterizes it in
his brief.3 First, the PSR states that, “[p]ursuant to USSG § 1B1.3(a)(1)(A) &
[§ 1B1.3(a)(2)], Valenzuela-Contreras’ drug-related activities in reference to
Escobar and Harris [i.e., the fronting of marijuana] are considered relevant
conduct and all part of the same course of conduct or common scheme or plan as
the offense of conviction.” Thus, the PSR “grouped” only the marijuana—not the
murder itself—as a countable offense pursuant to § 1B1.3(a)(2). Second, the PSR
states that, under § 1B1.3(a)(3), Harris’s murder “was a harm that resulted from
the acts and omissions of his relevant conduct and Harris’ murder was a harm
that was the object of his (Valenzuela-Contreras’) drug-related activities.” In
other words, the PSR reasoned that the marijuana transaction constituted
relevant conduct under § 1B1.3(a)(1)(A) and (a)(2) and that—because Valenzuela
killed Harris over a dispute about the marijuana—the murder was a



      3
         Valenzuela wrongly suggests that the PSR “grouped” Harris’s murder as relevant
conduct pursuant to § 1B1.3(a)(2).

                                          7
corresponding “harm” under (a)(3).4                 Finally, the PSR states that the
§ 2D1.1(d)(1) murder cross reference applied to Valenzuela’s sentence and thus
established a base offense level of 43.
       The district court did not err when it first grouped Valenzuela’s marijuana
transaction as relevant conduct pursuant to § 1B1.3(a)(2).5                       Indeed, the
marijuana was groupable under § 1B1.3(a)(2) as an act caused by the defendant
alongside other “counts involving substantially the same harm”—i.e., the counts
for heroin and cocaine possession with intent to distribute—under § 3D1.2(d).
Commentary in the Guidelines provides that, “in a drug distribution case, . . .
types of drugs not specified in the count of conviction are to be included in



       4
          Valenzuela persuasively argues that § 1B1.3(a)(1)(A) does not apply because neither
the marijuana transaction nor Harris’s murder occurred during, in preparation for, or in the
course of attempting to avoid detection or responsibility for the offenses of conviction. The
government appears to concede that Valenzuela is correct. Regardless, the PSR did not solely
base its sentencing enhancement on this provision; it also cited to § 1B1.3(a)(2) as grounds for
considering the marijuana as relevant conduct. We address the applicability of this provision
below.
       5
         Valenzuela argues that § 1B1.3(a)(2) and (a)(3) incorporate the “occurred during the
commission” language that exists at the end of § 1B1.3(a)(1). In other words, he contends that
§ 1B1.3(a)(2) and (a)(3) do not apply for the same reason that § 1B1.3(a)(1)(A) does not apply:
the killing of Harris did not occur during, in preparation for, or in the course of attempting to
avoid detection or responsibility for the offenses of conviction.
        Valenzuela’s interpretation is unavailing. The plain language of § 1B1.3(a)(2) only
refers to (1)(A) and (1)(B), not the “occurred during the commission” language which belongs
more generally to § 1B1.3(a)(1). Otherwise, (a)(2) would have referred broadly to section (a)(1).
Furthermore, as the government notes, the commentary accompanying § 1B1.3 contemplates
scenarios in which acts and omissions that are part of the “same course of conduct or common
scheme or plan” may be included under § 1B1.3(a)(2) but do not occur during, in preparation
for, or in the course of attempting to avoid detection or responsibility for the offense of
conviction. U.S.S.G. § 1B1.3 cmt. n.3 (“For example, where the defendant engaged in three
drug sales of 10, 15, and 20 grams of cocaine, as part of the same course of conduct or common
scheme or plan, subsection (a)(2) provides that the total quantity of cocaine involved (45
grams) is to be used to determine the offense level even if the defendant is convicted of a single
count charging only one of the sales.”). Similar reasons undermine Valenzuela’s argument
that the “occurred during the commission” language limits § 1B1.3(a)(3). Most importantly,
the plain language of this section refers to both (a)(1) and (a)(2), suggesting that acts under
(a)(2)—which itself does not include the “occurred during the commission” language—may be
considered regardless of the specific timing of the act or omission.

                                                8
determining the offense level if they were part of the same course of conduct or
part of a common scheme or plan as the count of conviction.” U.S.S.G. § 1B1.3
cmt. background. Furthermore, “[t]ypes . . . of drugs not specified in the count
of conviction may be considered in determining the offense level.” U.S.S.G. §
2D1.1 cmt. n.12. This court has previously ruled that “it is permissible for a
sentencing court to consider a defendant’s transactions in one type of drug even
if his conviction was for conspiracy involving a different type of drug . . .
assuming that those transactions otherwise satisfy the criteria for relevant
conduct prescribed by the guidelines.” United States v. McCaskey, 9 F.3d 368,
375 (5th Cir. 1993). In the present case, it was permissible for the district court
to consider Valenzuela’s marijuana transaction alongside his convictions for
possession of heroin and cocaine. Indeed, the PSR is clear that Valenzuela
trafficked in marijuana, as he fronted 25 pounds of marijuana to Escobar and
killed Harris when Harris refused to pay for it. Furthermore, marijuana is
explicitly linked with Valenzuela’s offenses of conviction, as more marijuana was
found in Valenzuela’s residence along with heroin and cocaine.                    Finally,
Valenzuela admitted to storing marijuana in his residence and never objected
to the inclusion of marijuana in his sentencing calculation. The district court
thus did not err when it determined that “drug-related activities in reference to
Escobar and Harris” were “relevant conduct and all part of the same course of
conduct or common scheme or plan as the offense of conviction” pursuant to
§ 1B1.3(a)(2).
       Furthermore, the district court did not err when it reasoned pursuant to
§ 1B1.3(a)(3) that Harris’s murder was a harm resulting from the marijuana
transaction. In his primary briefing before this court, Valenzuela does not
directly challenge the district court’s application of this specific provision.6 This

       6
         Valenzuela argues in a 28(j) letter that the district court plainly erred in ruling
Harris’s murder was relevant conduct under § 1B1.3(a)(3). Specifically, he argues that the

                                             9
court has not precisely defined what may constitute harm under this provision,
though it has noted that the provision contains neither a culpability
requirement, see United States v. Mitchell, 366 F.3d 376, 379 (5th Cir. 2004), nor
a foreseeability requirement, see United States v. Blakey, No. 92-9093, 1993 WL
307926, at *2 (5th Cir. July 29, 1993). Though other circuits have already found
that this provision contains a “causation requirement,” see, e.g., United States
v. Hicks, 217 F.3d 1038, 1048 (9th Cir. 2000) (“[T]he term ‘resulted from’
establishes a causation requirement.”), we need not do so here because Harris’s
murder was a harm that resulted from Valenzuela’s marijuana transaction, a
transaction that itself was relevant conduct under § 1B1.3(a)(2).
       Because the district court properly reasoned that the marijuana
transaction and Harris’s murder were relevant conduct pursuant to § 1B1.3, it
did not err, plainly or otherwise, when it applied the § 2D1.1(d)(1) murder cross
reference to Valenzuela’s sentence.
                                    IV. CONCLUSION
       For the foregoing reasons, we AFFIRM Valenzuela’s sentence.




court erred because Harris’s murder was related to other relevant conduct under § 1B1.3(a)(2)
(the marijuana transaction) and not to the offenses of conviction (the heroin and cocaine
possession). As support for this argument, he cites to the Seventh and District of Columbia
Circuits, both of which have allegedly prohibited this sort of “daisy-chain reasoning.” See
United States v. Bullock, 454 F.3d 637, 642 (7th Cir. 2006) (ruling it “not good enough” that
conduct be “relevant only by association with other relevant conduct,” and that instead “the
connection to the offense of conviction has to be direct.”); United States v. Pinnick, 47 F.3d 434,
439 (D.C. Cir. 1995) (“[T]he government must demonstrate a connection between count three
[offered as relevant conduct] and the offense of conviction, not between count three and the
other offenses offered as relevant conduct.”). However, both circuits ruled that conduct is not
relevant under § 1B1.3(a)(2) when it is solely related to other relevant conduct under (a)(2).
See THOM AS W. HUTCH ISON ET AL ., FEDERAL SENTENCING LAW AND PROCEDURE § 1B1.3 (9th
ed. 2009). In the present case, by contrast, the plain language of § 1B1.3(a)(3) explicitly
recognizes that Harris’s murder may be relevant conduct because it is a harm that resulted
from relevant conduct under (a)(2). U.S.S.G. § 1B1.3(a)(3) (including as relevant conduct “all
harm that resulted from the acts and omissions specified in subsection[] . . . (a)(2) above, and
all harm that was the object of such acts and omissions”).

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