* District Judge, Southern District of Texas, sitting by

designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-2516

 

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

VERSUS

LINDA RUIZ,

 Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

(CR-H-91-146-S)

 

(January 23, 1995)

Before KING and BENAVIDES, Circuit Judges, and LAKE,* District

Judge.

SIM LAKE, District Judge:

Linda Ruiz appeals the 10-year statutory minimum sentence the

district court imposed pursuant to 21 U.S.C. § 841(b)(1)(B)(i). We

AFFIRM.

Ruiz was one of a number of defendants charged in a multiplecount indictment. Count Two charged her with conspiracy to possess

with intent to distribute heroin from October 1, 1989, through
 

1 Presentence Report ("PSR") at ¶¶ 78 and 81.

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September 6, 1991, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

The government filed an Information of Prior Convictions pursuant

to 21 U.S.C. § 851(a)(1) notifying Ruiz that she was subject to an

enhanced penalty because of a prior state felony conviction for

possession of a controlled substance. Ruiz pleaded guilty to Count

Two in return for the government's agreement to dismiss the remaining counts against her. In her plea agreement Ruiz acknowledged

that the penalty for Count Two was 10 years to life in prison.

Ruiz was a member of a large heroin distribution conspiracy

operating in Bryan, Texas. The leader of the conspiracy was

Reynaldo Cantu-Castro ("Castro"). Ruiz was a heroin user who

required three or four "hits" a day. During the almost two-year

term of the conspiracy Ruiz was not lawfully employed. She supported her heroin addiction by trading sex and stolen merchandise

to Castro for heroin and by acting as an intermediary between other

members of the conspiracy and heroin buyers.1 

The PSR recited that on August 21, 1990, a Texas Department of

Public Safety investigator, acting undercover, met Ruiz for the

purpose of buying cocaine. Ruiz contacted her supplier and told

the agent that a cocaine purchase could be made later that day.

When Ruiz explained to the agent that she had not purchased cocaine

lately, but had been buying and using heroin, the agent asked Ruiz

if she could obtain heroin for him. Ruiz told the agent that she

could do so "with ease" and told the agent the price and place of

delivery. The agent asked Ruiz to purchase three "papers" of
 

2 PSR at ¶¶ 24 and 25.

 

3 PSR at ¶¶ 29 and 30.

 

4 PSR at ¶ 83.

 

5 Section 2D1.1 provides for a base offense level of 12 only

when the quantity of heroin involved in an offense is less than 5

grams.

 

6 PSR at ¶¶ 83 and 90.

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heroin for him, and she agreed to do so. Ruiz then contacted

Ernesto Escomilla, who worked as a runner for Castro, and Ruiz

acted as an intermediary in the sale of .26 gram of heroin to the

agent.2 On September 10, 1990, the same agent again contacted Ruiz

to buy heroin. Ruiz told the agent that heroin purchases would be

no problem because there was "a lot" of heroin in the Bryan area.

Ruiz quoted a price, and again acting as an intermediary between

the agent and Escomilla, Ruiz sold the agent five papers of heroin

weighing .37 gram. During this meeting she also offered to sell

cocaine to the agent.3 

The PSR concluded that "[c]onsidering relevant conduct issues

associated with Linda Ruiz," she was "directly linked" to the

distribution of .632 gram heroin on the two dates she sold it to

the undercover agent.4 Her base offense level under guideline

§ 2D1.1 was calculated at 12.5 After crediting Ruiz for acceptance

of responsibility the PSR calculated her total offense level at

10.6 Given her criminal history category of IV the PSR concluded

that Ruiz's guideline range was 15 to 21 months. Although the PSR

reported that other members of the conspiracy sold well in excess
 

7 E.g., PSR at ¶¶ 28, 37, 40, 45, 47, 53, and 56.

 

8 PSR at ¶ 100.

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of 100 grams of heroin,7 it neither mentioned guideline § 1B1.3 --

which allows an upward adjustment to a defendant's offense level

based on conduct "for which the defendant would otherwise be

accountable" -- nor contained any discussion of whether Ruiz's

offense level should be increased due to the conduct of coconspirators. After describing the conspiracy and Ruiz's conduct,

the PSR merely concluded that "pursuant to statutory requirements,

the guideline imprisonment range becomes the mandatory minimum

sentence of 10 years."8

Although Ruiz filed an objection to a statement in the PSR

that related to her criminal history score, she did not object to

any other factual information in the PSR or to the PSR's conclusion

that the 10-year statutory minimum applied. At the June 19, 1992,

sentencing hearing Ruiz acknowledged that a 10-year minimum

applied. Without making separate findings regarding either the

amount of heroin involved in the conspiracy or the amount of heroin

attributable to Ruiz, the court adopted the PSR, sentenced Ruiz to

10 years in prison followed by 8 years of supervised release, and

ordered her to pay a $50.00 special assessment. Ruiz now argues

that the district court erred in imposing a 10-year sentence, erred

in failing to make a specific finding regarding the amount of

heroin for which she was responsible, and erred in failing to

satisfy itself at the rearraignment that her plea was accurate with
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respect to the amount of heroin for which she would be held

responsible at sentencing.

Since Ruiz failed to object to either the PSR or the district

court's sentence (and in fact agreed that the 10-year statutory

minimum applied), the scope of our review is severely limited; we

will not reverse unless we find plain error. Crim. R. Fed. P.

52(b); United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en

banc). See also United States v. Rodriguez, 15 F.3d 408, 414-415

(5th Cir. 1994). We recently articulated the elements of the plain

error standard and explained why it is so rigorous:

One of the most familiar procedural rubrics in the

administration of justice is the rule that the failure of

a litigant to assert a right in the trial court likely

will result in its forfeiture. "This practice is founded

upon considerations of fairness to the court and to the

parties and of the public interest in bringing litigation

to an end after fair opportunity has been afforded to

present all issues of law and fact." In exceptional

circumstances, appellate courts may, in the interests of

justice, notice errors to which no objection has been

made. Such circumstances are sharply circumscribed by

the plain error standard requiring that unobjected-to

errors be "plain" and "affect substantial rights."

Assuming that these requirements are met, appellate

courts possess the discretion to decline to correct

errors which do not "seriously affect the fairness,

integrity, or public reputation of judicial proceedings."

Calverley, 37 F.3d at 162, quoting United States v. Atkinson, 297

U.S. 157, 159, 56 S.Ct. 391, 392 (1936), and United States v.

Olano, 113 S.Ct. 1770, 1776 (1993) (footnotes omitted).

Our first task under this standard is to determine whether the

district court committed an error in sentencing Ruiz to 10 years

imprisonment. The starting place in our analysis is the statutory

scheme under which Ruiz was convicted and sentenced. 21 U.S.C.
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§ 846 provides that a person who "conspires to commit any offense

defined in this subchapter shall be subject to the same penalties

as those prescribed for the offense, the commission of which was

the object of the . . . conspiracy." The object of the conspiracy

for which Ruiz was convicted was possession with intent to

distribute heroin in violation of 21 U.S.C. § 841(a). 21 U.S.C.

§ 841(b) states in pertinent part:

(b) Except as otherwise provided . . . any person

who violates subsection (a) of this section shall be

sentenced as follows:

. . .

(1)(B) In the case of a violation of subsection (a) of

this section involving --

(i) 100 grams or more of a mixture or substance

containing a detectable amount of heroin:

. . .

such person shall be sentenced to a term of imprisonment

which may not be less than 5 years and not more than 40

years. . . . If any person commits such a violation

after one or more prior convictions for [a state or

federal felony drug offense], such person shall be

sentenced to a term of imprisonment which may not be less

than 10 years and not more than life imprisonment . . .

(emphasis added)

For cases involving less than 100 grams of heroin, subsection

(1)(C) prescribes a maximum sentence of 30 years with no mandatory

minimum sentence for defendants who, like Ruiz, have one or more

prior felony drug convictions.

Ruiz argues that the district court erred in imposing a 10-

year sentence because the facts do not support a finding that her

offense involved at least 100 grams of heroin. The quantity of

drugs involved in a conspiracy offense is not an element of the
 

9 Neither the PSR nor the parties in their briefing have

connected the term "directly linked" to any provision of the

Sentencing Guidelines. Our research satisfies us that it is not a

precise term but instead is a shorthand term meaning the amount of

drugs attributable to a defendant's own conduct. In United States

v. Ponce, 917 F.2d 841, 844 (5th Cir. 1990), cert. denied, 499 U.S.

940, 111 S.Ct. 1398 (1991), we employed the term in this manner.

In describing the factual background of the case, we stated that

"[t]he sentencing court included not only the quantities of cocaine

directly linked to Ponce in its calculation of his base offense

level, but also . . . those quantities of cocaine attributable to

transactions involving his alleged co-conspirators" (emphasis

added).

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offense, it is a fact to be found by the sentencing court from a

preponderance of the evidence. United States v. Watch, 7 F.3d 422,

426-27 (5th Cir. 1993). In making this fact determination the

district court may rely on the information presented in the PSR

unless the defendant demonstrates that it is materially untrue.

United States v. Vela, 927 F.2d 197, 201 (5th Cir.), cert. denied,

112 S.Ct. 214 (1991). Although the PSR did not specifically state

that Ruiz's offense involved 100 grams or more of heroin, it

nevertheless contained factual information that supported imposition of the 10-year sentence. 

The PSR informed Ruiz and the district court that Ruiz had

been "directly linked" to the distribution of .632 gram of heroin.9

It also detailed sales by co-conspirators of substantially more

than 100 grams of heroin, explained Ruiz's personal involvement in

two sales, described her exchange of sex and stolen merchandise for

heroin on other occasions, and recited Ruiz's statements to the

undercover officer that she could obtain heroin "with ease" and

that heroin purchases would be no problem because there was "a lot"

of heroin in the Bryan area. Presented with these facts, with the
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probation officer's conclusion that the statutory 10-year minimum

sentence applied, and with no objection from Ruiz, the district

court had a sufficient basis for concluding both that Ruiz's

offense involved at least 100 grams of heroin and that the 10-year

statutory minimum should properly be applied to her.

Moreover, even assuming that the facts in the PSR did not

support the conclusion that Ruiz's offense involved at least 100

grams of heroin and that the statutory minimum therefore applied,

the district court could still have sentenced Ruiz to 10 years in

prison. Had the court found that Ruiz's offense involved only the

.632 gram of heroin that she personally delivered to the undercover

officer, Ruiz would have been sentenced under § 841(b)(1)(C). This

statute provides a maximum sentence of 30 years for defendants who,

like Ruiz, have at least one prior felony drug conviction. Because

the 10-year sentence imposed by the district court is well below

the maximum sentence to which Ruiz would otherwise have been

subject, the district court did not plainly err in sentencing her

to 10 years imprisonment. United States v. Brunson, 915 F.2d 942,

944 (5th Cir. 1990)(holding that where district court failed to

articulate reasons for upward departure from guideline range but

could, upon remand, reinstate the same sentence because it fell

below statutory maximum, no miscarriage of justice amounting to

plain error had occurred). 

Ruiz's second argument, that the district court erred in

failing to make a specific finding as to the amount of heroin

attributable to her, presents a closer question. Fed. R. Crim. P.
 

10 Rule 32(c)(3)(D) states: If the comments of the defendant

and the defendant's counsel or testimony or other information

introduced by them allege any factual inaccuracy in the presentence

investigation report or the summary of the report or part thereof,

the court shall, as to each matter controverted, make (i) a finding

as to the allegation, or (ii) a determination that no such finding

is necessary because the matter controverted will not be taken into

account in sentencing.

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32(c)(3)(D) requires district courts to make specific findings as

to all "controverted matters" in a PSR.10 In addition, our

decisions addressing relevant conduct of co-conspirators under

guideline § 1B1.3 impose an independent obligation on district

courts to make findings as to the quantity of drugs in the

conspiracy that was reasonably foreseeable to the defendant being

sentenced. United States v. Foy, 28 F.3d 464, 476-77 (5th Cir.),

cert. denied, 115 S.Ct. 610 (1994); United States v. Puig-Infante,

19 F.3d 929, 942 (5th Cir.), cert. denied, 115 S.Ct. 180 (1994);

United States v. Carreon, 11 F.3d 1225, 1233-1235 (5th Cir. 1994).

See also United States v. Smith, 13 F.3d 860, 866-868 (5th Cir.),

cert. denied, 114 S.Ct. 2151 (1994). At the time of Ruiz's

sentencing § 1B1.3(a)(1) made a defendant responsible for all acts

"for which the defendant would be otherwise accountable, that

occurred during the commission of the offense of conviction . . .

or that otherwise were in furtherance of" the offense. Application

Note 1 to this section stated in relevant part:

. . . In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy,

the conduct for which the defendant 'would be otherwise

accountable' also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal

activity that was reasonably foreseeable by the defendant. Because a count may be broadly worded and include

the conduct of many participants over a substantial
 

11 Unless otherwise noted all citations are to the 1991

Guidelines Manual in effect from November 1, 1991, through

October 31, 1992. This version of the guidelines applies to Ruiz

since she was sentenced on June 19, 1992. See United States v.

Ainsworth, 932 F.2d 358, 362 (5th Cir.), cert. denied, 112 S.Ct.

346 (1991)(guideline provisions in effect at the time of sentencing

dictates which version of the guidelines to apply). Effective

November 1, 1992, § 1B1.3(a)(1) was amended to incorporate the

reasonable foreseeability test previously articulated in Application Note 1 for determining relevant conduct in the case of jointly

undertaken criminal activity. Application Note 2 was simultaneously amended to provide "that a defendant is accountable for the

conduct (acts or omissions) of others that was both:

(i) in furtherance of the jointly undertaken criminal

activity; and

(ii) reasonably foreseeable in connection with that

activity."

We have interpreted these amendments to require the district court

to find not only the amount of drugs that the defendant could have

reasonably foreseen, but also the scope of the conspiracy to which

the defendant agreed. E.g., Smith, 13 F.3d at 866-868. For an

exhaustive history and analysis of the development of relevant

conduct under § 1B1.3 see Carreon, 11 F.3d at 1232-1235.

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period of time, the scope of the jointly-undertaken

criminal activity, and hence relevant conduct, is not

necessarily the same for every participant. Where it is

established that the conduct was neither within the scope

of the defendant's agreement, nor was reasonably foreseeable in connection with the criminal activity the

defendant agreed to jointly undertake, such conduct is

not included in establishing the defendant's offense

level under this guideline.11

For defendants who, like Ruiz, were sentenced under the 1991

guidelines, we explained that

reasonable foreseeability does not follow automatically

from proof that [the defendant] was a member of the conspiracy. The reasonable foreseeability required [under

the guidelines] requires a finding separate from a finding that the defendant was a conspirator. Thus, for a

sentencing court to attribute to a defendant a certain

quantity of drugs, the court must make two separate
 

12 Record (R.) 109.

 

13 At all times relevant to this case Southern District Local

Rule 17, "Guideline Sentencing" underscored this requirement. It

provided:

D. Objections.

1. Within 10 days after disclosure of the initial

report, counsel shall have delivered

objections to the report in writing to the

probation office.

2. Objections include alteration of the facts of

the offense, application of the sentencing

guidelines, and interpretation of them. A

party not objecting must deliver a statement

of non-objection to the probation office.

. . .

(continued...)

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findings: (1) the quantity of drugs in the entire conspiracy, and (2) the amount which each defendant knew or

should have known was involved in the conspiracy.

Puig-Infante, 19 F.3d at 942 (citations omitted).

The question presented by Ruiz's second argument is whether

the district court's failure to make such findings was plain error

under either Rule 32 or our precedent. "Deviation from a legal

rule is 'error' unless the rule has been waived." Olano, 113 S.Ct.

at 1777. Rule 32(c)(3)(D) only requires findings as to controverted matters. After Ruiz's rearraignment the district court

entered an Order for PSI, Disclosure Date, and Setting Sentence.12

The order required that the PSR be made available to defense

counsel when it was completed and required defense counsel and

counsel for the government to file by March 9, 1992, either a

statement of no objection or "[o]bjections in writing to the facts

of the offense and application of the sentencing guidelines."13
 

13(...continued)

E. Final Report.

1. After the time for objections, the probation

office shall promptly investigate and revise

the initial report, as required. The probation office may require counsel to meet the

officer to discuss disputed factual and legal

issues.

2. Within 12 days after the time for objections,

the probation office shall submit to the

sentencing judge the final report, with an

addendum of unresolved objections and the

officer's comments on them. The final report

shall contain a certificate that it has been

disclosed to all counsel and that a copy has

been filed under seal with the district clerk.

. . .

G. Effect. Except for objections in the addendum, the

court may accept the final report as accurate.

Absent a clear demonstration of good cause, no

party shall be allowed at the time of sentencing to

present other objections. . . . (emphasis added)

 

14 R. 120. In a supplemental addendum to the PSR the probation

officer concurred with Ruiz's objection and reduced her criminal

history score from 8 to 7.

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Ruiz only filed a written objection to one fact used to calculate

her criminal history score.14 At sentencing she voiced no

objections to any aspect of the PSR or to the sentence imposed by

the court. Because Ruiz never contested any of the information in

the PSR dealing with her role in the conspiracy, the amount of

drugs involved in the conspiracy, or the probation officer's

conclusion that the 10-year statutory minimum applied, these were

not controverted matters that required findings under Rule

32(c)(3)(D).
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We further conclude that under these facts Ruiz waived her

right to complain of the failure of the district court to comply

with our precedent requiring findings as to her relevant conduct in

the conspiracy. United States v. Garcia-Pillado, 898 F.2d 36, 39-

40 (5th Cir. 1990)(holding that government waived right to

challenge alleged error of district court in failing to impose

statutory minimum sentence under § 841(b)(1)(B) by failing to

object to sentence announced by district court); United States v.

Plisek, 657 F.2d 920, 925 (7th Cir. 1981)(holding that defendant

"waived any objection to the accuracy of the [presentence] report"

by failing to object after having been given ample opportunity to

do so). 

Our research has turned up only one reported decision in which

we held that a district court erred in failing to make sentencing

findings in the absence of an objection by the defendant. In

United States v. Puma, 937 F.2d 151, 159-160 (5th Cir. 1991), cert.

denied, 112 S.Ct. 1165 (1992), the court reversed a sentence and

remanded for additional findings of fact in light of an argument

raised for the first time on appeal without ever referring to the

appropriate standard of appellate review. The only authority the

court cited for its ruling, United States v. Warters, 885 F.2d 1266

(5th Cir. 1989), was a case in which the district court failed to

make sentencing findings after an objection to the PSR by the

defendant. In cases other than Puma we have consistently held that

the failure of the district court to make findings was not error in

the absence of a timely objection by the defendant. E.g., United
 

15 The absence of a finding by the sentencing court of the

amount of drugs reasonably foreseeable to a defendant is not always

reversible error even if the defendant objects to the amount of

drugs attributable to him in the PSR. In Sparks, 2 F.3d at 588-

589, we held that to vacate and remand for resentencing would be "a

hollow act" and a waste of judicial resources because the record

contained substantial evidence that the defendant knew, or should

have reasonably foreseen, the amount of drugs distributed by the

conspiracy. Under the facts of this case we likewise conclude

there was sufficient information in the PSR for the district court

to have concluded that it was reasonably foreseeable to Ruiz that

the conspiracy of which she was a part involved the possession with

intent to distribute more than 100 grams of heroin. 

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States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S.

924, 111 S.Ct. 2032 (1991); United States v. Sparks, 2 F.3d 574,

589 (5th Cir. 1993), cert. denied, 114 S.Ct. 899 (1994); United

States v. McCaskey, 9 F.3d 368, 375-76 (5th Cir. 1993), cert.

denied, 114 S.Ct. 1565 (1994).15 We believe these holdings made

before and after Puma correctly state the law binding on this panel

and applicable in this circuit.

Moreover, even were we inclined to conclude that the district

court's failure to make findings as to Ruiz's relevant conduct was

error under our precedent, we conclude that it was not plain error.

For an error to be "plain" it must be "clear" or "obvious." Olano,

113 S.Ct. at 1777. As we explained in Calverley, to be "plain" an

error must be "so conspicuous that 'the trial judge and prosecutor

were derelict in countenancing [it], even absent the defendant's

timely assistance in detecting [it].'" 37 F.3d at 163, quoting

United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592

(1982). Assuming that Puma created uncertainty as to the district

court's obligation to make sentencing findings absent an objection,

such uncertainty demonstrates that any error by the district court
 

16 See United States v. Irvin, 2 F.3d 72 (4th Cir. 1993), cert.

denied, 114 S.Ct. 1086 (1994)(explaining the similarity between the

principles incorporated in § 1B1.3 and the rule announced in

Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180 (1946),

that conspirators are guilty of reasonably foreseen acts of coconspirators done in furtherance of a conspiracy); United States v.

Young, 997 F.2d 1204 (7th Cir. 1993); United States v. Martinez,

987 F.2d 920 (2d Cir. 1993); United States v. Jones, 965 F.2d 1507

(8th Cir.), cert. denied, 113 S.Ct. 346 (1992).

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in failing to make sentencing findings in this case was not plain.

Calverley, 37 F.3d at 165.

Furthermore, although we have required district courts to make

separate findings as to a defendant's relevant conduct in a drug

conspiracy before increasing a defendant's guideline offense level

for the conduct of co-conspirators, we have not yet held that the

standards for determining the guideline range must also be used for

determining the applicability of a statutory minimum sentence. We

have recognized, however, that the other circuit courts that have

decided this issue have all held that the standards for determining

the amount of drugs involved in conspiracy cases for purposes of

applying the guidelines must also be used for purposes of applying

the statutory minimums prescribed by 21 U.S.C. § 841(b). See

United States v. Madkins, 14 F.3d 277, 279 (5th Cir. 1994). Today

we join the other circuits that have decided this question16 and

hold that the standards for determining the quantity of drugs

involved in a conspiracy for guideline sentencing purposes apply in

determining whether to impose the statutory minimums prescribed in

§ 841(b). Since we only decide this question today, the district

court did not plainly err by failing to make such findings in this

case.
 

17 Transcript of January 13, 1992, rearraignment at p. 7,

Docket Entry No. 684. R. Vol. II.

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Ruiz's last argument is that the district court erred in

failing to satisfy itself at the rearraignment that Ruiz's plea was

accurate with respect to the amount of heroin involved. Ruiz

argues that Fed. R. Crim. P. 11 requires a district court determining whether to accept a guilty plea in a drug conspiracy to satisfy

itself that there is a factual basis not only for the plea of

guilty but also for any relevant conduct that would warrant an

enhanced punishment. We reject this argument.

During Ruiz's rearraignment the district court informed her of

the elements of the conspiracy offense charged in Count Two and

informed her that the offense to which she was pleading guilty

"carries a minimum sentence of 10 years."17 Ruiz acknowledged --

both in her oral statements to the district judge and in her

written plea agreement -- that the penalty range for the offense to

which she was pleading guilty was 10 years to life in prison.

After Ruiz admitted to twice delivering heroin to an undercover

agent, the district court determined that there was an adequate

factual basis for her guilty plea. The amount of drugs involved in

a conspiracy is not an element of the offense, but an issue to be

resolved by the court at sentencing. E.g., Watch, 7 F.3d at 426-

27. Rule 11 did not require the district court to determine

whether there was a sufficient factual basis to support imposition

of an enhanced, 10-year sentence before accepting Ruiz's guilty

plea.

The judgment and sentence of the district court are AFFIRMED.