UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4552

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

JAIME CONEJO, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. 

Conrad, Jr., Chief District Judge. (3:07-cr-00092-RJC-4) 

Submitted: May 27, 2009 Decided: June 29, 2009 

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed in part; vacated and remanded in part by unpublished 

per curiam opinion. 

Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte, 

North Carolina, for Appellant. Gretchen C. F. Shappert, United 

States Attorney, Mark A. Jones, Assistant United States 

Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Jaime Conejo pled guilty without a plea agreement to 

conspiracy to possess with intent to distribute five kilograms 

or more of cocaine, 21 U.S.C.A. §§ 846, 841(b)(1)(A) (West 1999 

& Supp. 2008) (Count 1), and possession of five kilograms of 

cocaine with intent to distribute, 21 U.S.C.A. § 841(a), 

(b)(1)(A) (West 1999 & Supp. 2008) (Count 2). The district 

court imposed concurrent sentences of ten years imprisonment on 

each count. Conejo appeals, contending that the district court 

erred in finding a sufficient factual basis for his guilty plea. 

The government concedes error as to Count Two, but maintains 

that an adequate factual basis existed for Count One. We affirn 

the judgment on Count One, but vacate the judgment on Count Two 

and remand for resentencing. 

 Conejo and three co-defendants agreed to sell five 

kilograms of cocaine to a confidential informant who was under 

surveillance by federal drug agents and local police in 

Charlotte, North Carolina. Conejo transported five bricks of 

cocaine to a garage where he met the informant with another 

conspirator and showed the informant one brick of cocaine, which 

the informant sampled. The informant then accompanied Conejo to 

his vehicle to see the other four bricks of cocaine. After he 

saw the cocaine, the informant gave the signal for Conejo and 

his co-defendants to be arrested. Conejo was charged with the 

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federal offenses of conspiracy to possess five kilograms of 

cocaine with intent to distribute and possession of five 

kilograms of cocaine with intent to distribute. At Conejo’s 

guilty plea hearing, presentation of the factual basis for the 

plea was deferred until sentencing. Subsequently, the 

laboratory report on the seized cocaine disclosed that the total 

net weight of the cocaine was 4.99 kilograms. 

 Conejo’s recommended advisory guideline range was 

63-78 months. Based on the lab report, Conejo refused to 

stipulate that he should be held responsible for five kilograms 

of cocaine. However, the district court found that Conejo was 

liable for five kilograms because the defendants had negotiated 

to sell that amount and had delivered five bricks of cocaine, 

each purportedly weighing one kilogram. The court consequently 

imposed a sentence of 120 months for each count, the statutory 

minimum sentence under § 841(b)(1)(A) for an offense involving 

five kilograms of cocaine, stating that “[i]t is a sentence 

required by law, the court has no discretion in imposing it.” 

On appeal, Conejo contends that the factual basis was inadequate 

to establish that he committed an aggravated drug trafficking 

offense involving five kilograms of cocaine, thus punishable 

under § 841(b)(1)(A), for either count because he did not admit 

his personal involvement with five kilograms of cocaine and 

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because the district court gave insufficient consideration to 

the lab report. 

 Prior to “entering judgment on a guilty plea, the 

[district] court must determine that there is a factual basis 

for the plea.” Fed. R. Crim. P. 11(b)(3). It is “well settled 

that a defendant may raise on direct appeal the failure of a 

district court to develop on the record a factual basis for a 

plea . . . .” United States v. Mitchell, 104 F.3d 649, 652 n.2 

(4th Cir. 1997). A district court’s finding of a factual basis 

for a guilty plea is reviewed for abuse of discretion. United 

States v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002). There is 

no abuse “so long as the district court could reasonably 

determine that there was a sufficient factual basis.” Id. 

 “To prove conspiracy to possess cocaine with intent to 

distribute, the Government must establish: (1) an agreement to 

possess cocaine with intent to distribute existed between two or 

more persons; (2) the defendant knew of this conspiracy; and (3) 

the defendant knowingly and voluntarily became a part of this 

conspiracy.” United States v. Wilson, 135 F.3d 291, 306 (4th 

Cir. 1998). Here, Conejo did not dispute the fact that the 

object of the conspiracy was a sale of five kilograms of 

cocaine. 

 Under 21 U.S.C. § 846, the sentences for drug 

conspiracies are set out in § 841(b), which “creates a 

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three-part graduated penalty scheme for drug distribution 

offenses, premised on the type and quantity of the drugs 

involved.” United States v. Brooks, 524 F.3d 549, 557 

(4th Cir.), cert. denied, 129 S. Ct. 519 (2008). We held in 

Brooks that “‘specific threshold drug quantities must be treated 

as elements of aggravated drug trafficking offenses, rather than 

as mere sentencing factors.’” Id. (quoting United States v. 

Promise, 255 F.3d 150, 156 (4th Cir. 2001)). Thus, the specific 

threshold drug quantity generally must be proved beyond a 

reasonable doubt or admitted by the defendant. Brooks, 524 F.3d 

at 556-57. The specific threshold quantity of cocaine required 

for a sentence under § 841(b)(1)(A) is five kilograms. 

 However, for a conspiracy offense, the defendant’s 

agreement to commit a crime involving a specific amount is the 

essential element that must be proved to trigger a statutorily 

enhanced sentence, not whether the agreed-upon conduct was 

actually completed. See United States v. Dixon, 449 F.3d 194, 

202 (1st Cir. 2006) (“factual impossibility is not a defense to 

either liability or sentencing enhancements for inchoate 

offenses such as conspiracy or attempt”); United States v. 

Hamrick, 43 F.3d 877, 885 (4th Cir. 1995) (attempt). However, 

for the statutory minimums of § 841(b) to apply, the particular 

threshold drug amount must be reasonably foreseeable to the 

defendant. Brooks, 524 F.3d at 558. Here, we are satisfied 

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that the district court did not err in finding that Conejo 

agreed to distribute five kilograms of cocaine and that it was 

reasonably foreseeable to him that the five bricks weighed five 

kilograms, even though they actually weighed slightly less. 

 For guideline purposes, Conejo was responsible for 

five kilograms of cocaine on Count One. See U.S. Sentencing 

Guidelines Manual § 2D1.1, comment. (n.12) (when offense 

involves agreement to sell drugs, agreed-upon quantity is used 

to determine offense level unless amount delivered more 

accurately reflects scale of offense). Therefore, the probation 

officer correctly calculated the advisory guideline range at 63-

78 months. However, because Conejo was subject to a mandatory 

minimum sentence of ten years, the guideline range increased to 

120 months. USSG § 5G1.1(b) (2006). 

 For Count Two, which charged that Conejo possessed 

five kilograms of cocaine with intent to distribute, the 

government concedes that the specific threshold drug quantity 

needed to trigger a sentence under § 841(b)(1)(A) was not 

present, and we agree. Thus, for Count Two, the default penalty 

subsection of § 841(b)(1)(C) applied, which sets only a 

statutory maximum of twenty years. Brooks, 524 F.3d at 561. 

 We therefore affirm the judgment on Count One, but 

vacate the judgment on Count Two and remand for resentencing on 

that count. We dispense with oral argument because the facts 

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and legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

AFFIRMED IN PART;

VACATED AND REMANDED IN PART