The Honorable Dean Whipple, United States District Judge for the Western

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District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3872WM

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United States of America, *

*

Appellee, *

*

v. * On Appeal from the United

* States District Court

* for the Western District

Jose Jesus Varela, * of Missouri.

*

*

Appellant. *

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Submitted: January 15, 1998

Filed: March 16, 1998

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Before RICHARD S. ARNOLD, Chief Judge, HANSEN and MURPHY, Circuit

Judges.

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RICHARD S. ARNOLD, Chief Judge.

In this case, Jose Jesus Varela appeals the sentence imposed by the District

Court following his guilty plea for drug-related crimes. Varela argues that the District 1
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Court incorrectly calculated his base offense level for purposes of the federal

Sentencing Guidelines. We affirm.

I.

Varela pleaded guilty to both counts of a two-count indictment: conspiracy to

possess with intent to distribute five kilograms or more of cocaine and attempt to

possess with intent to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 846, 841(a)(1), (b)(1)(A) (1994). 

Varela described his participation in the conspiracy that led to his arrest. In

December 1995, Varela met his cousin, Loreto Romero, in a hotel room in North

Kansas City. Romero had fronted cocaine to Don Flores, who sold the cocaine to

buyers and then paid Romero for the cocaine. In the hotel room, Romero told Varela

that he was dissatisfied with the time it took for Flores to find buyers and asked Varela

to “start finding buyers . . . for cocaine and stuff like that.” Varela Plea Tr. at 14.

Varela and Romero also discussed the process of smuggling cocaine from California

to Kansas City. Varela then left the hotel room. A month later, on the evening of

January 19, 1996, Varela’s brother, Erasmo Garcia Lajam, asked Varela to drive him

to the airport in Kansas City to pick up Romero and Donald Baxter, Romero’s partner.

Varela agreed. Afterward, Varela, Lajam, Romero, and Baxter went out to a restaurant

and bar and began drinking. Over the course of the evening, Varela learned that the

other three planned to meet a courier named Edgard Duarte at an Amtrak station early

the next morning and pick up approximately 18 kilograms of cocaine. At one point,

they asked Varela if he would procure buyers for the cocaine. Varela then asked a man

in the bar if he wanted to buy cocaine, and the man agreed to buy two kilograms.

Although the four men did not know it, Duarte, the courier, had been arrested

earlier that day on an Amtrak train in Albuquerque, New Mexico, and the 21.28

kilograms of cocaine he was transporting to Kansas City had been seized. Duarte
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agreed to cooperate with the Drug Enforcement Agency in a controlled delivery of

cocaine to Romero and Baxter. At 6:30 the next morning, Varela drove Romero,

Lajam, and Baxter to the Amtrak station in Kansas City. Baxter went inside the station

to meet the courier while the other three waited in Varela’s car. Baxter was

apprehended by DEA agents after he entered the station, and Lajam, Romero, and

Varela were arrested in the parking lot.

At the guilty-plea hearing Varela told the court that although he did not intend to

distribute all of the cocaine he and the other three men were to pick up at the Amtrak

station, he knowingly joined a group that was going to sell five or more kilograms of

cocaine. Varela explained that while he did not know exactly how much cocaine he,

Baxter, Romero, and Lajam were to pick up at the train station, he knew that it was

“about 18 kilos” and that “I thought 18 kilos wasn’t that much, the way that they was

talking.” Varela Plea Tr. at 15, 21. At Varela’s sentencing hearing, the District Court

calculated a total offense level of 30 and a criminal history category of IV, for a

Sentencing Guidelines range of 135 to 168 months. The Court then sentenced Varela

to 135 months’ imprisonment, to be followed by five years’ supervised release, and a

$100 special assessment. Varela Sentencing Tr. at 65, 69. The offense level of 30 was

based on the District Court’s finding that Varela was responsible for all 21 kilograms

of cocaine seized from the drug courier on January 19. Id. at 51. Varela now appeals

the calculation of his offense level, arguing that he should be responsible only for two

kilograms of cocaine, and that the District Court failed to make adequate factual

findings to support the sentence.

II.

The sentence in this case is governed by U.S.S.G. § 1B1.3, having to do with

“relevant conduct.” In brief, the base offense level is determined on the basis of acts

committed by the defendant himself, § 1B1.3(a)(1)(A), and, in the case of a jointly

undertaken criminal activity, all reasonably foreseeable acts and omissions of others in
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furtherance of the jointly undertaken criminal activity, § 1B1.3(a)(1)(B). In the present

case, the District Court did not specifically refer to either subparagraph (A) or

subparagraph (B) when holding Varela accountable for 21 kilograms of cocaine. It is,

however, well established that we may affirm a sentence on any grounds supported by

the record. See United States v. Strange, 102 F.3d 356, 360 n.4 (8th Cir. 1996). In the

case of a conspiracy to transport and convey narcotics, all members of the conspiracy

are directly accountable under subparagraph (A) for the quantity of drugs involved. Id.

at 360-61. We therefore need not address the foreseeability requirement of

subparagraph (B). Under the facts of this case, Varela is clearly responsible for the

entire shipment.

At the hearing, Varela admitted that he had discussed selling drugs with Romero,

and that he had asked a patron at the bar if he wanted to buy cocaine from Romero.

Moreover, Varela said that on the night before he drove Romero, Lajam, and Baxter to

the train station, he was fully aware of the purpose of the trip: “And we kept on drinking

and everything, and by the time about 3 o’clock came, I already knew this whole

situation, about 18 kilos stuff.” Varela Plea Tr. at 15. Because Varela admitted that he

knowingly entered into a conspiracy to possess cocaine, the District Court properly held

him accountable for the full amount of cocaine that was to be obtained by him and by

his co-conspirators. The evidence indicates that Varela expected that the shipment

might well exceed 18 kilos, and in any event the difference between 18 and 21 is not

material for Guidelines purposes.

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.