FILED
                                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                       Tenth Circuit

                              FOR THE TENTH CIRCUIT                         August 21, 2018
                          _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee/Cross-
          Appellant,
                                                      Nos. 17-2027 & 17-2035
 v.                                               (D.C. No. 1:13-CR-03895-MCA-2)
                                                              (D. N.M.)
 EDGAR SOLIS,

          Defendant - Appellant/Cross-
          Appellee.
                         _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before EID, BALDOCK, and EBEL, Circuit Judges.
                  _________________________________

      In 2016, a jury found Defendant guilty of attempting to possess with intent to

distribute 500 grams or more of a substance containing a detectable amount of cocaine

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.         The presentence

investigation report (PSR) noted the U.S. Sentencing Guidelines advised a range of

imprisonment from 151 to 188 months and noted Defendant was subject to a five-year

mandatory minimum term of imprisonment. Nonetheless, the district court sentenced

Defendant to 50 months’ imprisonment. Both Defendant and the Government appealed



      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate Defendant’s

sentence.

                                            I.

      The parties are aware of the facts that led to the criminal prosecution of

Defendant. We recount only the facts necessary to resolve the legal issues before us

today. Defendant was involved in an attempted purchase of five kilograms of cocaine

from undercover officers. Subsequently, a grand jury indicted Defendant on five

counts, including attempting to possess with intent to distribute 500 grams or more of

a substance containing a detectable amount of cocaine. Defendant proceeded to jury

trial. After hearing all of the evidence, the district court dismissed four of the counts,

leaving only the attempting to possess with intent to distribute count. The jury found

Defendant guilty.

      Defendant’s PSR calculated the Guidelines imprisonment range to be 151

months to 188 months. The PSR also explained, under § 841(b)(1)(B), the minimum

term of imprisonment was five years. The PSR noted it used five kilograms of cocaine

in calculating Defendant’s base offense level. Defendant objected to the PSR because,

among other things, he asserted there was insufficient evidence to establish he was

aware the attempted transaction concerned more than one kilogram of cocaine.

Defendant requested a downward variance from the guideline range for numerous

reasons, including to avoid creating an unwarranted disparity between his sentence and

his co-defendant’s 37-month sentence. In response, the Government argued a sentence

of imprisonment within the Guidelines range was appropriate and noted that Defendant

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was subject to a five-year mandatory minimum. The Government also argued the

evidence showed Defendant was aware the cocaine deal involved five kilograms.

      The district court held five kilograms of cocaine should be attributed to

Defendant because “[p]ursuant to Guideline 1B1.3, Application Note 4, it is

unnecessary for the defendant to have full knowledge of the amount of the controlled

substance.” ROA Vol. III at 89. Additionally, the district court rejected most of

Defendant’s arguments for a downward variance but ultimately varied downward to 50

months’ imprisonment. In so doing, the district court explained that such a “substantial

variance” was appropriate in this case because of Defendant’s personal history and

characteristics, including his struggle with addiction, and the need to avoid any

unwarranted sentence disparities.    Id. at 115–16; see 18 U.S.C. § 3553(a).        The

Government reiterated that a five-year mandatory minimum sentence was “legally

required” by § 841(b)(1)(B). Id. at 120. Defendant insisted otherwise because the jury

had not specifically found the 500-gram quantity by a special interrogatory. The

district court announced the court’s 50-month sentence would stand. Both parties filed

timely notices of appeal.

                                          II.

      The sole issue Defendant raises on appeal is that the district court erred in its

calculation of the quantity of drugs attributable to Defendant under U.S. Sentencing

Guidelines (U.S.S.G.) § 1B1.3. We review the district court’s calculation for clear

error. See United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001). Section



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1B1.3(a)(1) provides that, among other things, a defendant’s base offense level must

be determined based on:

      (1)(A) all acts and omissions committed, aided, abetted, counseled,
      commanded, induced, procured, or willfully caused by the defendant; and

      (B) in the case of a jointly undertaken criminal activity . . . , all acts and
      omissions of others that were—

      (i) within the scope of the jointly undertaken criminal activity,

      (ii) in furtherance of that criminal activity, and

      (iii) reasonably foreseeable in connection with that criminal activity;

      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[.]

U.S. Sentencing Guidelines Manual § 1B1.3(a)(1). A defendant can be “accountable

for particular conduct” under more than one subsection of § 1B1.3. Id. § 1B1.3 cmt.

nn.2, 4(A)(i).

      Defendant argues, under § 1B1.3(a)(1)(B), he could only be held responsible for

the amount of drugs that was “reasonably foreseeable” to him.               Therefore, in

Defendant’s view, the district court should have determined Defendant’s base offense

level based on one kilogram of cocaine, rather than five kilograms. In making this

argument, Defendant completely disregards § 1B1.3(a)(1)(A), which makes a

defendant who directly participates in a drug transaction “responsible for ‘all acts . . .

committed, aided, [and] abetted . . . by the defendant’ without regard to

foreseeability.” United States v. McCullah, 76 F.3d 1087, 1105 (10th Cir. 1996)

(emphasis added). In McCullah, the defendant was sentenced in a drug conspiracy

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conviction based on a 91-kilogram shipment of drugs that the conspiracy involved. Id.

The defendant challenged this sentence, arguing there was no evidence he was aware

the drugs weighed 91 kilograms. Id. We rejected this argument because reasonable

foreseeability does not factor into § 1B1.3(a)(1)(A). Id.1

      As the district court noted, the Guidelines commentary supports this

interpretation as well. The Guidelines explain that a defendant caught with others off-

loading marijuana from a ship is accountable for the entire amount of marijuana seized,

regardless of the number of bales the defendant personally unloaded. U.S. Sentencing

Guidelines Manual § 1B1.3(a)(1) cmt. n.4. Because the defendant aided and abetted

the off-loading of the entire shipment, he is “accountable for the entire shipment under

subsection (a)(1)(A) without regard to the issue of reasonable foreseeability.” Id.

      In light of McCullah and the Guidelines commentary, Defendant’s argument that

he is responsible for only one kilogram of cocaine because that is all that was

reasonably foreseeable to him fails. As one who directly participated in the attempted

drug transaction, Defendant is “accountable for the entire [amount of drugs] under

subsection (a)(1)(A) without regard to the issue of reasonable foreseeability.”2 See id.




      1
         Defendant attempts to distinguish McCullah because McCullah involved a
conspiracy conviction on plain error review.        But McCullah’s holding that
§ 1B1.3(a)(1)(A) operates without regard to reasonable foreseeability clearly was not
limited to conspiracy convictions on plain error review and is, instead, binding
authority directly applicable to this case.
      2
        Because of this, we need not determine as a factual matter whether it was
reasonably foreseeable that the drug transaction involved five kilograms of cocaine.
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Therefore, the district court did not err in sentencing Defendant based on the five-

kilogram amount of cocaine involved in the transaction.

                                          III.

      The Government argues the district court erred in failing to impose a mandatory

minimum sentence of five years. We “generally review[] sentencing decisions under

an abuse of discretion standard, asking if the sentence imposed was both procedurally

and substantively reasonable.” United States v. Cornelius, 696 F.3d 1307, 1326 (10th

Cir. 2012). “An abuse of discretion occurs when the district court bases its ruling on

an erroneous conclusion of law, or where the trial court fails to consider the applicable

legal standard.”   United States v. Hasan, 609 F.3d 1121, 1127 (10th Cir. 2010)

(citations and internal quotations omitted).

      A defendant who possesses with intent to distribute “500 grams or more of a

mixture or substance containing a detectable amount of . . . cocaine . . . shall be

sentenced to a term of imprisonment which may not be less than 5 years . . . .” 21

U.S.C. § 841(b)(1)(B). The two exceptions to this rule are when a defendant benefits

from a substantial assistance motion under 18 U.S.C. § 3553(e) and when a defendant

qualifies for the statutory safety valve under 18 U.S.C. § 3553(f). United States v.

Altamirano-Quintero, 511 F.3d 1087, 1089–90 (10th Cir. 2007). When no exception

applies, “a district court has no discretion to depart from a statutorily mandated

minimum sentence under 21 U.S.C. § 841 . . . .” Cornelius, 696 F.3d at 1326.

      Defendant does not argue (and it does not appear) that an exception to

§ 841(b)(1)(B) applies, nor does Defendant dispute the district court lacked discretion

                                           6
to depart from the mandatory minimum. See Def. 3d Br. on Cross-Appeal at 2 (“[A]

district court has no discretion to depart from a statutorily mandated minimum sentence

under 21 U.S.C. § 841 . . . .”). Instead, Defendant argues he was not subject to

§ 841(b)(1)(B) in the first place because the jury did not find the quantity of cocaine

by a special interrogatory.

      The law requires no such thing. “[T]o increase a defendant’s sentence for a

conviction pursuant to § 841, drug quantities must be charged in an indictment,

submitted to a jury, and proved beyond a reasonable doubt.” United States v. Cernobyl,

255 F.3d 1215, 1218 (10th Cir. 2001).            As Defendant acknowledges, these

requirements are met in this case. The indictment charged Defendant with “unlawfully,

knowingly and intentionally attempt[ing] to possess with intent to distribute a

controlled substance, 500 grams and more of a mixture and substance containing a

detectable amount of cocaine.” ROA Vol. I at 772. The district court instructed the

jury it must be convinced the Government proved beyond a reasonable doubt “the

amount of cocaine that defendant intended to possess was at least 500 grams.” Id. at

846; see also id. at 847. And the jury was indeed convinced the Government proved

such beyond a reasonable doubt. Id. at 864. We see no reason to extend the law to

require drug quantities to be submitted to a jury in an interrogatory or special-verdict

form when they already must be charged in an indictment, submitted to a jury, and

proved beyond a reasonable doubt.       Because Defendant was properly subject to

§ 841(b)(1)(B) and the district court had no discretion to depart from the five-year



                                           7
mandatory minimum required by this statute, the district court erred in sentencing

Defendant to 50 months’ imprisonment.

      We therefore VACATE Defendant’s sentence and REMAND to the district court

for the sole purpose of resentencing Defendant consistent with the mandatory

minimum set forth in 21 U.S.C. § 841(b)(1)(B).



                                            Entered for the Court


                                            Bobby R. Baldock
                                            Circuit Judge




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