PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4464

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARCO ANTONIO FLORES-ALVARADO, a/k/a Guero,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. Terrence W. Boyle, 

District Judge. (7:12-cr-00089-BO-5)

Argued: December 11, 2014 Decided: March 3, 2015

Amended: March 11, 2015

Before TRAXLER, Chief Judge, and WYNN and HARRIS, Circuit 

Judges.

Vacated and remanded by published opinion. Chief Judge Traxler 

wrote the opinion, in which Judge Wynn and Judge Harris joined.

ARGUED: Wayne Buchanan Eads, Raleigh, North Carolina, for 

Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF THE 

UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. 

ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P. 

May-Parker, Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
2

TRAXLER, Chief Judge:

Marco Antonio Flores-Alvarado pleaded guilty to conspiracy 

to distribute and to possess with intent to distribute five 

kilograms or more of cocaine and 1000 kilograms or more of 

marijuana, see 21 U.S.C. §§ 841(a)(1), 846, and possession with 

intent to distribute (“PWID”) more than 100 kilograms of 

marijuana, see 21 U.S.C. § 841(a)(1). The district court 

sentenced Flores-Alvarado to life imprisonment on the conspiracy 

charge and a concurrent term of 480 months’ imprisonment on the 

PWID charge. Flores-Alvarado appeals, raising several 

challenges to his sentence. Because the district court failed 

to make the required factual findings regarding the drug 

quantity attributed to Flores-Alvarado, we vacate and remand for 

re-sentencing.

I.

According to the information in the presentence report 

(“PSR”), Flores-Alvarado and codefendant Enrique MendozaFigueroa ran two related drug trafficking organizations in North 

Carolina. Flores-Alvarado and Mendoza-Figueroa used multiple 

sources in Mexico and the United States for their marijuana and 

cocaine and “routinely bought and sold large amounts of drugs 

from each other.” J.A. 107.

In calculating the advisory Guidelines range, the PSR 

recommended that Flores-Alvarado be held accountable for at 
3

least 3886.3 kilograms of marijuana and 136.125 kilograms of 

cocaine, which converted to a total marijuana equivalent of 

31,111.16 kilograms. Included in these quantities were drugs 

seized from houses in Stokesdale, North Carolina (the 

“Stokesdale Seizure”), and Lexington, Kentucky (the “Lexington 

Seizure”). The PSR described those seizures as follows:

12. On April 25, 2011, agents determined that FloresAlvarado was involved in the distribution of a large 

shipment of marijuana from Stokesdale, North Carolina, 

to Shannon, North Carolina. Agents subsequently 

seized 1,424 pounds (645.9 kilograms) of marijuana 

from a residence in Stokesdale. Following this 

seizure, Flores-Alvarado stopped using one of the 

target telephone numbers which agents had used to 

facilitate the seizure in this case. Additionally, 

calls made to and from Flores-Alvarado connected [a 

co-defendant] to this transaction.

. . .

17. On August 17, 2011, Flores-Alvarado traveled to 

Lexington, Kentucky, to coordinate the distribution of 

a multi-thousand-pound marijuana shipment from 

Kentucky to North Carolina. Although the shipment was 

canceled, agents with the DEA in Lexington were able

to identify a significant marijuana distribution cell 

operating in that area. During the week of October 4, 

2011, agents determined that Flores-Alvarado and [the 

same co-defendant] were again coordinating the 

delivery of a large shipment of marijuana from 

Lexington to the Eastern District of North Carolina. 

Agents established surveillance on locations 

previously identified during the surveillance of 

Flores-Alvarado in August of 2011. As a result, 

agents in Lexington were able to seize 3,510 pounds 

(1,592.1 kilograms) of marijuana and $1,835,021.40 in 

drug proceeds. Seven members of the Lexington [drugtrafficking organization] were also arrested.

J.A. 107-09 (footnote omitted). 
4

Based on the 31,111.16 kilograms of marijuana attributed to 

Flores-Alvarado, the PSR assigned him a base offense level of 

38, see U.S.S.G. § 2D1.1(c)(1), and, after other adjustments, a 

total offense level of 43. With that offense level and FloresAlvarado’s Category II criminal history, the advisory sentencing 

range on both counts was life imprisonment. See U.S.S.G. ch. 5, 

pt. A (sentencing table). However, because the statutory 

maximum on the PWID count was 40 years’ imprisonment, see 21 

U.S.C. § 841(b)(1)(B), the Guidelines range on that count became 

480 months, see U.S.S.G. § 5G1.1(c)(1) (capping higher 

Guidelines range at statutory maximum). If the drug quantities 

involved in the Stokesdale Seizure and the Lexington Seizure are 

excluded, Flores-Alvarado’s total offense level drops to 41, 

with an advisory sentencing range of 360 months to life.

Counsel for Flores-Alvarado filed numerous objections to 

drug quantities attributed to him, including the quantities from 

the Stokesdale Seizure and the Lexington Seizure, and asserted 

that Flores-Alvarado should be held accountable for no more than 

the equivalent of 8169.32 kilograms of marijuana, a quantity 

that would reduce his base offense level from 38 to 34. Counsel 

also filed a sentencing memorandum in which he reiterated his 

objections to the PSR and moved for a variance sentence of 10 

years’ imprisonment.
5

Sentencing was conducted over the course of two hearings, 

the first being continued midway through to allow for the 

appearance of the prosecutor who tried the case and was thus 

more familiar with the facts. At both sentencing hearings, 

counsel argued that the quantities of marijuana attributed to 

Flores-Alvarado from the Stokesdale and Lexington Seizures were 

attempted purchases that, in accordance with U.S.S.G. § 2X1.1, 

should be assigned lower offense levels than if the transactions 

had been completed. Counsel also argued that Flores-Alvarado 

could be held responsible for the amounts he was attempting to 

purchase, but that he should not be held accountable for the 

full quantities that were later seized. Counsel argued for a 

downward variance and attempted to explain to the court that his 

client had refused to cooperate because he feared retribution 

against his family by the Mexican drug traffickers.

At the second hearing, the district court asked the thenin-attendance prosecuting attorney to explain the drug 

quantities attributed to Flores-Alvarado. As to the marijuana, 

the prosecutor explained that the quantities attributed to 

Flores-Alvarado included 3500 pounds of marijuana from the 

Lexington Seizure, which she stated were attributed to FloresAlvarado through intercepted cell phone calls establishing that 

he had arranged a purchase there, as well as 1424 pounds of 
6

marijuana from the Stokesdale Seizure.1 The government did not 

call any witnesses or present any other evidence about the drug 

quantities or the Stokesdale and Lexington Seizures.

Responding to Flores-Alvarado’s argument that the 

Stokesdale and Lexington Seizures should be treated as mere 

attempts, the government countered that Flores-Alvarado was 

charged with conspiracy, a crime that was complete when the 

conspiratorial agreement was reached, and that it was reasonably 

foreseeable to Flores-Alvarado that the Stokesdale and Lexington 

drug suppliers would have on hand quantities exceeding the 

amount he attempted to purchase. In the government’s view, 

Flores-Alvarado should not benefit from the fact that law 

enforcement was able to seize the drugs before he purchased 

them.

The district court agreed with the government’s view and 

“f[ound] by a preponderance of the evidence” that Flores-

 1 When summarizing the transactions involving cocaine, the 

prosecutor included an incident involving the seizure of 

$189,000 in cash during a traffic stop in Georgia. According to 

the prosecutor, the cash was converted to 5.9 kilograms of 

cocaine and attributed to Flores-Alvarado. The PSR, however, 

attributed those quantities to Mendoza-Figueroa, not FloresAlvarado. Because we find the district court’s fact-finding to 

be inadequate in another regard, we need not consider FloresAlvarado’s challenge to the district court’s apparent inclusion 

of the $189,000 in the drug quantities attributed to FloresAlvarado. Should the issue arise on remand, Flores-Alvarado may 

renew his objection. 
7

Alvarado qualified for a base offense level of 38. J.A. 68. 

After applying the other adjustments as provided in the PSR, the 

court determined that Flores-Alvarado’s total offense level was 

43 and that the Guidelines sentencing range was therefore life 

imprisonment. After listening to Flores-Alvarado’s argument for 

a variance sentence and the government’s response, the district 

court announced its sentence, stating, “All right. On Count 

One, I’ll impose a sentence of life and on Count Two a sentence 

of 480 months concurrent.” J.A. 93.

Flores-Alvarado appeals, challenging his sentence on 

several grounds. He argues that the district court failed to 

make the necessary factual findings to support its drug-quantity 

calculations; that the court’s determination of the quantities 

attributable to Flores-Alvarado was clearly erroneous; that the

court failed to consider the relevant 18 U.S.C. § 3553(a) 

sentencing factors or adequately explain the sentence; and that 

the life sentence amounted to cruel and unusual punishment in 

violation of the Eighth Amendment.

II.

We turn first to Flores-Alvarado’s related arguments 

challenging the drug quantity attributed to him by the district 

court and the sufficiency of the court’s factual findings on 

that issue. We review the factual findings made by a sentencing 

court for clear error. See United States v. Medina–Campo, 714 
8

F.3d 232, 234 (4th Cir.), cert denied, 134 S. Ct. 280 (2013). 

Accordingly, “[i]f the district court makes adequate findings as 

to a controverted [sentencing] matter, this court must affirm 

those findings unless they are clearly erroneous.” United 

States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991). However, 

the “review process cannot take place without the district court 

first resolving all the disputed matters upon which it relies at 

sentencing.” Id.

Flores-Alvarado’s objections to the inclusion of the 

Stokesdale and Lexington Seizures were not mere quibbles over 

the PSR’s drug totals, but were specific and factually grounded 

enough to raise legal and factual questions about whether the 

events as described in the PSR supported attributing the seized 

quantities to Flores-Alvarado. The district court was therefore 

obligated to resolve the dispute. See Fed. R. Crim. P. 

32(i)(3)(B) (requiring “for any disputed portion of the 

presentence report or other controverted matter” that the 

district court “rule on the dispute or determine that a ruling 

is unnecessary either because the matter will not affect 

sentencing, or because the court will not consider the matter in 

sentencing”); United States v. Walker, 29 F.3d 908, 912 (4th 

Cir. 1994) (finding “specific objections to the factual findings 

underlying the PSR’s recommendation” sufficient to trigger 

court’s Rule 32 obligations). As we will explain, the district 
9

court did not resolve the disputed issue and did not make the 

factual findings necessary to attribute to Flores-Alvarado the 

quantities involved in the Stokesdale Seizure and the Lexington 

Seizure.

The sentences imposed for drug offenses are driven by the 

quantity of drugs involved. Under the Guidelines, the drug 

quantities that may be attributed to the defendant include the 

quantities associated with the defendant’s offense of conviction 

and any relevant conduct. See United States v. Gilliam, 987 

F.2d 1009, 1012-13 (4th Cir. 1993). Relevant conduct in 

conspiracy cases includes “all reasonably foreseeable acts and 

omissions of others in furtherance of the jointly undertaken 

criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).2 As the 

Guidelines point out, however,

the scope of the criminal activity jointly undertaken 

by the defendant (the “jointly undertaken criminal 

activity”) is not necessarily the same as the scope of 

the entire conspiracy, and hence relevant conduct is 

not necessarily the same for every participant. . . .

The conduct of others that was both in furtherance of, 

and reasonably foreseeable in connection with, the 

criminal activity jointly undertaken by the defendant

is relevant conduct under this provision. The conduct 

of others that was not in furtherance of the criminal 

activity jointly undertaken by the defendant, or was 

 2 We note that the Sentencing Commission has recently 

proposed amendments to the § 1B1.3 Guideline and commentary so 

as “to provide more guidance on the use of ‘jointly undertaken 

criminal activity’ in determining relevant conduct.” Notice of 

Proposed Amendments to Sentencing Guidelines, Policy Statements, 

and Commentary, 80 Fed. Reg. 2570, 2570 (Jan. 16, 2015). 
10

not reasonably foreseeable in connection with that 

criminal activity, is not relevant conduct under this 

provision.

U.S.S.G. § 1B1.3, cmt. n.2 (emphasis added); see also United 

States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir. 2008) 

(“Conspiracy liability, as defined in Pinkerton . . . , is 

generally much broader than jointly undertaken criminal activity 

under § 1B1.3.”).

“Accordingly, in order to attribute to a defendant for 

sentencing purposes the acts of others in jointly-undertaken 

criminal activity, those acts must have been within the scope of 

the defendant’s agreement and must have been reasonably 

foreseeable to the defendant.” Gilliam, 987 F.2d at 1012-13 

(emphasis added); see U.S.S.G. § 1B1.3, cmt. n.2 (“In order to 

determine the defendant’s accountability for the conduct of 

others under subsection (a)(1)(B), the court must first 

determine the scope of the criminal activity the particular 

defendant agreed to jointly undertake (i.e., the scope of the 

specific conduct and objectives embraced by the defendant’s 

agreement).”). And as to this issue, we require sentencing 

courts to “make particularized findings with respect to both the 

scope of the defendant’s agreement and the foreseeability of 

[the conduct at issue].” United States v. Bolden, 325 F.3d 471, 

499 (4th Cir. 2003) (second emphasis added; internal quotation 

marks omitted).
11

In this case, the district court, by agreeing with the 

government’s foreseeability argument, at least implicitly found 

that the quantities involved in the Stokesdale and Lexington 

Seizures were foreseeable to Flores-Alvarado. As discussed 

above, however, foreseeability is not enough; the acts of others 

may be attributed to a defendant only if those acts were 

foreseeable to the defendant and were within the scope of the 

defendant’s agreement to jointly undertake criminal activity. 

See Bolden, 325 F.3d at 499; see also United States v. 

Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993) (“If the defendant 

has not joined the criminal activity, it does not matter that he 

could have foreseen the criminal act. The reasonably 

foreseeable standard applies only after it is shown that a 

jointly undertaken activity has taken place.”). The district 

court, however, made no findings, implicit or explicit, 

addressing the critical factual question of the scope of the 

criminal activity Flores-Alvarado agreed to jointly undertake.

We recognize that the district court adopted the PSR, which 

can be a satisfactory means of resolving factual disputes. See, 

e.g., Bolden, 325 F.3d at 497; Walker, 29 F.3d at 911. Adopting 

the PSR does not satisfy the requirements of Rule 32(i)(3)(B), 

however, if the factual recitations in the PSR do not support 

the PSR’s recommendation. See United States v. Chandia, 514 

F.3d 365, 376 (4th Cir. 2008) (remanding for resentencing where 
12

district court adopted PSR’s recommended enhancement but PSR

“did not contain any factual assertions” to support application 

of the enhancement); Bolden, 325 F.3d at 498 (remanding for 

recalculation of loss amount where district court adopted PSR 

but PSR “fail[ed] to support” a necessary factual finding); see 

also United States v. Robinson, 744 F.3d 293, 300 n.5 (4th Cir.) 

(explaining that “a probation officer’s calculation in a PSR 

standing alone (that is, without the identification of 

supporting evidence of any kind) does not constitute a finding 

of fact on which a sentencing court can rely” (internal 

quotation marks omitted)), cert. denied, 135 S. Ct. 225 (2014). 

In this case, the factual recitations of the PSR are 

insufficient to attribute the Stokesdale and Lexington Seizures 

to Flores-Alvarado. See United States v. Hammond, 201 F.3d 346, 

352 (5th Cir. 1999) (per curiam) (vacating sentence which 

attributed to defendant losses incurred by third parties because 

PSR adopted by the court did not contain the “absolute 

prerequisite[]” factual finding as to the scope of the jointly 

undertaken criminal activity (internal quotation marks 

omitted)).

As to the Stokesdale Seizure, the PSR states that in April 

2011, “Flores-Alvarado was involved in the distribution of a 

large shipment of marijuana from Stokesdale, North Carolina, to 

Shannon, North Carolina,” J.A. 107, and that agents 
13

“subsequently seized 1,424 pounds . . . of marijuana from a 

residence in Stokesdale,” J.A. 108 (emphasis added). Based on 

these facts, the PSR and the district court attributed the full 

amount of that seizure to Flores-Alvarado. For the amount of 

drugs that the Stokesdale supplier later happened to have onhand to be attributable to Flores-Alvarado, there would need to 

be some kind of evidence showing that Flores-Alvarado and the 

Stokesdale supplier jointly agreed to operate together for 

future drug deals. The mere fact that Flores-Alvarado once 

bought marijuana from the Stokesdale supplier does not establish 

the kind of relationship necessary to support the attribution. 

See U.S.S.G. § 1B1.3, cmt. n.2(c)(4) (child pornography 

possessed by wholesale distributor not attributable to dealer 

who purchases from wholesaler “but otherwise operates 

independently”). The bare-bones information in the PSR about 

the Stokesdale Seizure does not even conclusively establish that 

the drugs were seized from the same marijuana dealer that 

Flores-Alvarado had been involved with, much less that the 1,400 

pounds of marijuana were within the scope of the criminal 

activity jointly undertaken by Flores-Alvarado. The PSR’s 

reference to phone calls from Flores-Alvarado connecting a codefendant “to this transaction,” J.A. 108, provides a hint that 

there might in fact be evidence establishing a sufficient 
14

connection, but the facts actually spelled out in the PSR do not

establish that connection.

The facts recited in the PSR are likewise inadequate as to 

the drug quantities involved in the Lexington Seizure. The PSR 

states that Flores-Alvarado went to Kentucky in August 2011 to 

coordinate a deal involving thousands of pounds of marijuana, 

but that the deal fell through; that agents learned in October 

2011 that Alvarado again was working on a deal for a large 

shipment of marijuana from Lexington; and that agents placed 

under surveillance locations identified during Flores-Alvarado’s 

previous trip to Lexington and thereafter seized 3500 pounds of 

marijuana. Unlike the allegations regarding the Stokesdale 

Seizure, these allegations are perhaps sufficient to establish 

that the drugs were seized from the same supplier that Alvarado 

contacted in August. Nonetheless, for the reasons discussed 

above, the facts of the Lexington Seizure as described in the 

PSR do not establish that the marijuana possessed by the 

supplier in October was within the scope of Flores-Alvarado’s 

jointly undertaken criminal activity.

Because the PSR does not contain facts sufficient to show 

that the quantities from the Stokesdale Seizure and Lexington 

Seizure were within the scope of the criminal activity jointly 

undertaken by Flores-Alvarado and the district court failed to 

make any findings on this critical point, the factual findings 
15

underlying the court’s drug quantity calculations are 

“inadequate.” Bolden, 325 F.3d at 500. Consequently, we are 

unable to review the issue and must remand for resentencing. 

See id. at n.34; Morgan, 942 F.2d at 245 (“In the event the 

district court fails to resolve a disputed factual matter on 

which it necessarily relied at sentencing, this court must 

vacate the sentence and remand for resentencing.”).

III.

For the reasons set out above, we hereby vacate FloresAlvarado’s sentence and remand for re-sentencing proceedings 

consistent with this opinion.3

 On remand, the district court 

 3 Our conclusion that a remand for resentencing is required 

makes it unnecessary to consider Flores-Alvarado’s arguments 

that the district court failed to consider the relevant 18 

U.S.C. § 3553(a) sentencing factors and failed to adequately 

explain the sentence imposed. To the extent the other issues 

raised by Flores-Alvarado may be relevant on remand, we briefly 

address them.

Flores-Alvarado argues that the incidents underlying the 

Stokesdale and Lexington Seizures were attempts to commit crimes 

to which a lower offense level should apply. See U.S.S.G. § 

2X1.1(b)(1) (where offense of conviction is “an attempt,” base 

offense level is three levels lower than base offense level 

under Guideline governing the completed substantive offense). 

By its own terms, however, § 2X1.1 does not apply to attempts, 

solicitations, or conspiracies that are “expressly covered by 

another offense guideline section.” U.S.S.G. § 2X1.1(c)(1). 

Because the Guideline governing drug offenses expressly covers 

attempts and conspiracies, see U.S.S.G. § 2D1.1, § 2X1.1 is 

therefore inapplicable to this case. See U.S.S.G. § 2X1.1, cmt. 

n.1 (noting that § 2D1.1 expressly covers attempts).

(Continued)
16

must resolve the factual disputes surrounding the drug 

quantities involved in the Stokesdale and Lexington Seizures and 

must “make particularized findings” as to whether the challenged 

quantities were within the scope of Flores-Alvarado’s agreement 

to jointly undertake criminal activity and whether those drug 

quantities were reasonably foreseeable to Flores-Alvarado. 

Bolden, 325 F.3d at 499; see U.S.S.G. § 1B1.3, cmt. n.2.4

VACATED AND REMANDED

 

We likewise reject Flores-Alvarado’s argument that the life 

sentence imposed by the district court violated the Eighth 

Amendment. Flores-Alvarado is a repeat drug felon involved in a 

large-scale conspiracy who was, by his own admission, involved 

in the distribution of thousands of pounds of marijuana. Under 

the circumstances of this case, a sentence of life imprisonment 

was constitutionally permissible. See United States v. Kratsas, 

45 F.3d 63, 68 (4th Cir. 1995) (“[A] mandatory sentence of life 

imprisonment without release, as applied to a repeat drug 

offender, d[oes] not run afoul of the Eighth Amendment’s 

prohibition against cruel and unusual punishment here.”).

4 We deny Flores-Alvarado’s request that the case be reassigned to a new judge on remand.