United States Court of Appeals

For the First Circuit

No. 01-1773

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL H. COLON-SOLIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Smith,* District Judge.

Maria H. Sandoval on brief for appellant.

H. S. Garcia, United States Attorney, Sonia I. Torres-Pabón,

Chief, Criminal Division, and Nelson Pérez-Sosa and Thomas F.

Klumper, Assistant United States Attorneys, on brief for appellee.

January 8, 2004

*Of the District of Rhode Island, sitting by designation.
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SELYA, Circuit Judge. Defendant-appellant Miguel H.

Colón-Solís (Colón) appeals from a sentence imposed after a guilty

plea to a single count of conspiring to distribute a controlled

substance (cocaine). See 21 U.S.C. §§ 841(a)(1), 846. The

appellant's principal argument is that the district court erred in

imposing a ten-year mandatory minimum sentence, id. § 841(b)(1)(A),

without making a specific finding that he — rather than the charged

conspiracy — was accountable for a particular quantity of drugs.

This argument presents a question of first impression in

this circuit. We phrase the question as follows: When a defendant

admits that the conspiracy to which he belonged handled drug

quantities sufficient to trigger a statutory mandatory minimum

sentence, does he automatically become subject to that mandatory

minimum without a further finding that the triggering amounts were

attributable to, or foreseeable by, him? We join several of our

sister circuits in answering this question in the negative.

Accordingly, we vacate the appellant's sentence and remand for

resentencing.

Because the appellant's sentence followed an admission of

guilt, we glean the pertinent facts from the change-of-plea

colloquy, the presentence investigation report (PSI Report), and

the transcript of the disposition hearing. See United States v.

Dietz, 950 F.2d 50, 51 (1st Cir. 1991). The government charged the

appellant, along with a number of others, with conspiring to
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distribute narcotics as a member of the so-called La Cabra drug

ring. See United States v. Pérez-Ruiz, ___ F.3d ___, ___ (1st Cir.

2003) [No. 02-1466, slip op. at 3] (describing the La Cabra drug

ring). On the eve of trial, he entered a straight guilty plea. In

doing so, the appellant admitted that the conspiracy had handled

more than five kilograms of cocaine (the triggering amount for a

ten-year mandatory minimum sentence under 21 U.S.C. §

841(b)(1)(A)). The change-of-plea proceeding left open the

question whether the appellant himself was responsible for a lesser

drug quantity.

The appellant was one of several codefendants who

simultaneously changed their pleas. Perhaps because of this

circumstance, the proffer made by the government at the appellant's

change-of-plea hearing was conspicuous for its scantiness. The

prosecutor stated only that the appellant had served as a runner

"on occasions" for Miguel O'Conner-Colón (La Cabra) and, as such,

had (i) assisted in the packaging and processing of narcotics, and

(ii) delivered narcotics to drug points. The prosecutor did not

allude in any way to specific drug weights.

The district court convened the disposition hearing on

April 12, 2001. The appellant argued that he should not be held

responsible for five kilograms or more of cocaine (and that,

therefore, the mandatory minimum was irrelevant). The court

brushed aside this argument, noted that the indictment charged
1At the request of defense counsel, the district court reduced

the appellant's base offense level to take account of the fact that

heroin — a substance handled by the La Cabra drug ring — was not

distributed in the La Ferran ward (where the appellant had worked).

This reduction suggests that the court understood the concept of

individual accountability, but it does not compensate for the lack

of specific findings vis-à-vis the quantities of cocaine

attributable to, or foreseeable by, the appellant.

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distribution of five kilograms or more of cocaine, and found that

the appellant had admitted to this "basic drug amount" at the

change-of-plea hearing. On that foundation — and that foundation

alone — the court found the appellant responsible for five

kilograms or more of cocaine. Relying on this finding, the court

invoked 21 U.S.C. § 841(b)(1)(A) and imposed a ten-year

incarcerative sentence. This appeal followed.

We review de novo properly preserved challenges to a

sentencing court's conclusions of law. United States v. St. Cyr,

977 F.2d 698, 701 (1st Cir. 1992). The appellant properly

preserved his claim that the district court erred in failing to

make an individualized finding as to the drug quantities

attributable to, or foreseeable by, him. See Pérez-Ruiz, ___ F.3d

at ___ [slip op. at 22-23]. Finding the record barren — it

contains no evidence of any particular drug quantities attributable

to, or foreseeable by, the appellant; no specific finding as to any

drug quantity attributable to, or foreseeable by, him;1 and no

relevant stipulations — we validate the appellant's claim of error.

We explain briefly.
2This does not mean, of course, that the defendant must have

personally handled the drugs for which he is held responsible. A

defendant also may be held responsible for drugs involved in his

"relevant conduct." USSG §1B1.3. In a proper case, "[s]uch

conduct may include a defendant's own acts or the acts of others."

United States v. Laboy, ___ F.3d ___, ___ (1st Cir. 2003) [No. 02-

1865, slip op. at 8].

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The sentencing court appears to have applied a per se

rule, automatically attributing to the appellant the full amount of

the drugs charged in the indictment and attributed to the

conspiracy as a whole. This was error.

To be sure, we derive the applicable statutory maximum in

a drug conspiracy case from a conspiracy-wide perspective. Id. at

___ [slip op. at 31]; Derman v. United States, 298 F.3d 34, 43 (1st

Cir.), cert. denied, 537 U.S. 1048 (2002). Nevertheless, we

consistently have required a defendant-specific determination of

drug quantity as a benchmark for individualized sentencing under

the guidelines. See, e.g., United States v. Bradley, 917 F.2d 601,

604 (1st Cir. 1990); USSG §1B1.3. Thus, when a district court

determines drug quantity for the purpose of sentencing a defendant

convicted of participating in a drug-trafficking conspiracy, the

court is required to make an individualized finding as to drug

amounts attributable to, or foreseeable by, that defendant.2 In

the absence of such an individualized finding, the drug quantity

attributable to the conspiracy as a whole cannot automatically be

shifted to the defendant. See United States v. Valencia-Lucena,
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988 F.2d 228, 234-35 (1st Cir. 1993); United States v. Thompson,

944 F.2d 1331, 1343-44 (7th Cir. 1991).

A mandatory minimum operates in much the same way. It is

made potentially available by a finding that the conspiracy as a

whole handled (or at least contemplated) the necessary triggering

amount. But to apply the mandatory minimum to a particular

coconspirator, the sentencing court must make a specific finding,

supportable by a preponderance of the evidence, ascribing the

triggering amount to that coconspirator. See United States v.

Swiney, 203 F.3d 397, 401-06 (6th Cir. 2000); United States v.

Becerra, 992 F.2d 960, 967 n.2 (9th Cir. 1993); United States v.

Gilliam, 987 F.2d 1009, 1013-14 (4th Cir. 1993).

That principle is dispositive in this case. Where, as

here, a defendant admits that the conspiracy to which he belonged

handled drug quantities sufficient to trigger a mandatory minimum

sentence, he becomes potentially eligible for the mandatory minimum

— but that provision cannot be applied in his case without an

individualized finding that the triggering amount was attributable

to, or foreseeable by, him.
3Given our disposition of the appellant's principal claim of

error, we need not reach his challenge to the district court's

application of the doctrine laid down in Apprendi v. New Jersey,

530 U.S. 466, 490 (2000). We note, however, that substantially the

same challenge appears to have been considered and rejected in

earlier decisions. See, e.g., United States v. Collazo-Aponte, 281

F.3d 320, 325 (1st Cir.) (collecting cases), cert. denied, 537 U.S.

869 (2002).

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We need go no further.3 Given the lack of any

individualized findings of drug quantity, we must vacate the

appellant's sentence and remand to the district court for

resentencing. We take no view as to what sentence is appropriate;

we merely hold that any sentence imposed must be accompanied by

particularized findings as to the drug amounts attributable to, or

foreseeable by, the appellant.

The conviction is affirmed, the sentence is vacated, and

the case is remanded for resentencing.