PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESUS FIGUEROA-LABRADA, a/k/a Chuy, Defendant - Appellant. No. 12-6090

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 5:11-CR-00234-HE-3)

O. Dean Sanderford, Assistan t Federal Public Defender, (Warren R. Williamson, Interim Federal Public Defender, with him on the brie fs), Office of the Fede ral Public Defender, Denver, Colorado, for Defendant-Appellant. David P. Petermann, Assistant United States A ttorney (Sanford C. Coats, United States Attorney, Suzanne Mitchell, Assistant United States Atto rney, with him on the brief), Office of the United States Attorney for th e Western District of Oklahoma, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before HOLMES, MURPHY, and MATHESON, Circuit Judges.

MATHESON , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### June 28, 2013
Elisabeth A. Shumaker Clerk of Court-2- I. INTRODUCTION In 2011, a methamphetamine dealer in Oklahoma City and several of his buyers and sellers were indicted for their a lleged involvement in a methamphetamine distribution conspiracy. Jesus Figueroa-Labr ada, one of the buyers, was convicted of conspiring to possess methamphetamine with in tent to distribute. Mr. Figueroa was involved in only three of the conspiracy’s eight drug transactions, but his presentence investigation report (“PSR”) calculated hi s advisory sentencing range under the U.S. Sentencing Guidelines (the “Gui delines”) by attributing to him as relevant conduct all of the methamphetamine distributed through the conspiracy, more than doubling his Guidelines range. The sentencing court ad opted the PSR’s Guidelines calculation to determine Mr. Figueroa’s sentence but made no particularized findi ngs on his relevant conduct. On appeal, Mr. Figueroa challenges (1) the district court’s calculation of methamphetamine attributable to him and (2 ) the district court’s failure to make particularized findings. Exercising jurisdic tion pursuant to 28 U. S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we reverse on the second issue regarding lack of particularized findings and remand for resentencing.
II. BACKGROUND In December 2010, the Drug Enforcement Administration and the Department of Homeland Security began a methamphetamine distribution investigation in Oklahoma-3- City. The agencies wiretapped suspect Rafael Quintero-Rivas’s phone . From monitoring his calls, the Government identified eight me thamphetamine transactions arranged by Mr. Quintero-Rivas. Mr. Figueroa purchased me thamphetamine from Mr. Quintero-Rivas on three occasions. Mr. Quintero-Rivas arranged for seller Eloy Villa to make the delivery on one occasion and seller Ivan Guzman-Torres to deliver on another. In addition, during one phone call with Mr. Figuero a, Mr. Quintero-Rivas refere nced another buyer, Valente Campos, suggesting that Mr. Figueroa knew that Mr. Campos also bought drugs from Mr. Quintero-Rivas. Police arrested seven individuals, including Mr. Figueroa, on June 7, 2011. When police arrested Mr. Figueroa , they found stored in hi s phone the numbers of Mr. Quintero-Rivas and two other sellers, Mr. Vi lla and Jose Angel Gonzalez-Gondarilla. All seven individuals—Mr. Quintero-Rivas, M r. Figueroa, Mr. Villa, Mr. Guzman, Mr. Campos, Mr. Gonzalez, and anot her buyer, Mr. Lechuga—were in dicted for conspiring to possess methamphetamine with the intent to distribute, among other charges.
A. Jury Trial Mr. Figueroa was tried along with Mr. Quintero-Rivas, Mr. Gonzalez, and Mr. Campos. The indictment charged Mr. Figueroa with one count of conspiracy, in violation of 21 U.S.C. § 846, two counts of possession with intent to distribute methamphetamine,-4- in violation of 21 U.S.C. § 841(a)(1), and two counts of using a telep hone to facilitate the distribution of methamphetamine, in violation of 21 U.S.C. § 843(b). At trial, the Government produced eviden ce that Mr. Quintero -Rivas facilitated eight methamphetamine transactions. Only th ree of the eight transactions involved Mr. Figueroa. The evidence showed that the conspiracy began on April 22, 2 011, when Mr. Figueroa purchased one-half ounce of meth amphetamine from Mr. Qu intero-Rivas. Mr. Figueroa later purchased another one-half ou nce on April 28 and one ounce on May 6. The total amount of methamphetamine from the three transactions in which Mr. Figueroa was personally involved was 56.7 grams. The evidence did not show that Mr. Fi gueroa was involved in any of the conspiracy’s other transactions. A total of 746.19 grams of methamphetamine mixture changed hands during the conspiracy, 1 including the 56.7 grams from Mr. Figueroa’s transactions. In closing argument, the prosecu tion maintained that all eight transactions

1 In his brief, Mr. Figueroa calculates the total amount of methamphetamine mixture involved in the conspiracy as 747.25. Our calculation, based on the undisputed information on the eight transactions, yields a total of 746.19 grams of calculable methamphetamine mixture, plus two transacti ons classified as “small ones,” for which no calculation is possible.-5- established a single conspiracy, making e ach defendant responsi ble for all of the methamphetamine. The jury convicted Mr. Figueroa of conspira cy, as well as the four other counts in the indictment. The court asked the jury to complete a special inte rrogatory verdict form indicating for each respective defendant “the quantity or weight of methamphetamine which you find beyond a reasonable doubt was involved in the conspiracy from and after the date that defendant became a member of the conspiracy.” First Suppl. ROA at 13. The verdict form gave the ju ry three choices: (1) 500 gr ams or more, (2) 50 grams or more, but less than 500 grams, and (3) less than 50 grams. The district court instructed the jury to use the verdict form to “specify [its] unanimous finding concerning the quantity of methamphetamine i nvolved in the crime.” Second Suppl. ROA at 44. The jury instructions added, “T he government is required to prove the qu antity of the controlled substance involved in an o ffense beyond a reasonable doubt.” Id. Mr. Quintero-Rivas and Mr. Figueroa began their dealings on April 22, 2011. The evidence showed that 746.19 grams of methamphetamine mixture changed hands among Mr. Quintero-Rivas and those ch arged for dealing with him. It is not clear whether the jury found there was one conspiracy that in cluded Mr. Quintero-Rivas and the others, or whether there were instead several smaller c onspiracies revolving around Mr. QuinteroRivas, one of which was comprised of Mr. Quintero-Rivas and Mr. Figueroa. If the-6- former, the jury should have checked the “500 grams or mo re” line on the special verdict interrogatory form for Mr. Figu eroa. If the jury found that Mr. Figueroa’s conspiracy was only with Mr. Quintero-Riv as, then it correctly checked “50 grams or more, but less than 500 grams of . . . meth amphetamine” as consistent w ith the 56.7 grams involved in the three transactions in which Mr. Figueroa pa rticipated. Resolution of the jury’s actual finding of one large conspiracy or several sm aller ones is unnecessary to our analysis of this appeal, except to point ou t that a conspiracy limited to Mr. Figueroa, Mr. QuinteroRivas, and 56.7 grams of methamphetamine doe s not support attributing 746.19 grams to Mr. Figueroa as relevant conduct.
B. Presentence Investigation Report Although the trial evidence showed that Mr. Figueroa participated in three transactions, the PSR includ ed in his relevant conduct the 746.19 grams of methamphetamine mixture from all eight transa ctions associated with the conspiracy. Pursuant to U.S.S.G. § 2D1. 1(c)(3), the 746.19 grams of methamphetamine mixture that changed hands produced a ba se offense level of 34. 2 Combined with Mr. Figueroa’s

2 The Guidelines convert all drug amount s to marijuana equivalencies before determining the base offense level. Th e total amount of methamphetamine in the Continued . . .-7- criminal history category I, his advisory Guid elines range was 151 to 188 months. The PSR included no particularized findings to su pport this relevant conduct attribution. In contrast, the PSRs for each of the other three codefendants attributed to them amounts consistent with what the jury mark ed on the special verdict form. Had Mr. Figueroa’s relevant conduct been limited to the amount of methamphetamine involved in his transactions—56.7 grams—his base offe nse level would have been 26, and his Guidelines range would have been 63 to 78 months. See U.S.S.G. § 2D1.1(c)(7); id. Ch. 5, Pt. A (sentencing table).
C. Sentencing Hearing The district court began the sentencing hearing by asking Mr. Figueroa and his counsel whether they had any objections to th e PSR. They did not, and his counsel stated he was ready to proceed. The judge again as ked, “[I]s there any suggestion . . . of any inaccuracies in the presentence report or anyt hing of that sort that your client has a

______________________________________ Cont.

conspiracy here is equivalent to 4,262.18 kilograms of mar ijuana, which produces a base offense level of 34.-8- concern with?” ROA, Vol. III at 733. M r. Figueroa’s counsel replied, “I think everything is up to snuff as fa r as the PSR is concerned.” Id. at 734. After the defense failed to object to the methamphetamine calculation, the Government noted that Mr. Figueroa’s PS R, which attributed 746.19 grams of methamphetamine mixture to him, was not consis tent with his special interrogatory. This differed from the other defendants’ PSRs, wh ich were consistent with their special interrogatories. The prosecution asserted th at Mr. Figueroa’s PSR correctly calculated the amount. But because the Government had failed to object to the other defendants’ PSRs, it “urg[ed] the Court to consider what Mr. [Figueroa] actually possessed” to “avoid an [unwarranted] sentencing disparity.” Id. at 735. The prosecut ion offered to provide the court with a new sentencing calculation based on that amount. The district court decided that if Mr. Fi gueroa’s PSR calculation were correct, it would be better to “start with a correctly calculated” Guidelines sentencing range and have the Government file out-of-time objections to the other defendants’ PSRs to fix the disparity. Id. at 736. Notably, Mr. Figueroa’s counsel did not object or make any argument, even after the prosecution identifie d this issue and offered to recalculate Mr. Figueroa’s Guidelines range based on the lower amount of methamphetamine attributed to him on the special verdict form. The judge concluded: “In light of the absence of objection to the presentence report here, I will adopt the presentence report as the-9- findings of the Court on all undisputed factual matters referenced in it.” Id. at 737. The court made no particularized findings on relevant conduct a nd failed to note the absence of particularized findings in the PSR. The district court adopted the PSR’s calc ulation of 746.19 grams attributable to Mr. Figueroa and its Guidelines range calcul ation of 151 to 188 months. Due to Mr. Figueroa’s lack of any prior convictions and his good employment history, the judge gave him a below-Guidelines senten ce of 120 months in prison 3 and four years of supervised release.
III. DISCUSSION On appeal, Mr. Figueroa asserts two claims of sentencing error. First, he contends that the district court erred by using th e Guidelines calculati on in the PSR, which attributed to Mr. Figueroa the drug amount fro m all eight drug transactions instead of only the amount from the three transactions in which he was directly involved. Second, he argues that even if the district court did not err in using the PSR’s calculation, it erred

3 This sentence included 120 months for counts 1, 3, and 8 (the conspiracy and “possession with intent to distribute” char ges) and 48 months fo r counts 6 and 13 (the “unlawful use of a communication fac ility” counts), to r un concurrently.-10- by failing to make particularized findings con cerning whether all of the drug sales were properly attributable to Mr. Figueroa. We reverse and remand on this second i ssue because the district court failed to make particularized findings.
A. Waiver or Forfeiture The district court adopted the PSR’s releva nt conduct attribution of drugs to Mr. Figueroa. The court did not make and th e PSR did not contain any particularized findings to support the attribu tion. Mr. Figueroa’s attorney did not object to the PSR’s attribution of relevant conduct, request the court to make particularized findings, or object to its failure to do so. On appeal, Mr. Figueroa argues that the district court plainly erred by not making particulari zed findings. The Government argues that Mr. Figueroa waived this issue. The Government primarily relies on United States v. HernandezValdez , 441 Fed. Appx. 592, 596 (10th Cir. 2011), an unpublished case that in turn relies

on United States v. Chee , 514 F.3d 1106, 1115 (10th Cir. 2008), which does not support the Government’s position. A sentencing court must make particularized findings to support the attribution of a coconspirator’s actions to the defendant as relevant conduct, whether or not the defendant asks it to do so or disputes the attribution. See U.S.S.G. § 1B1.3, cmt. n.2 (“In order to determine the defendant’s accountability for the conduct of others . . . the court-11- must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake.”); United States v. Green , 175 F.3d 822, 837 (10th Cir. 1999); United States v. Melton , 131 F.3d 1400 , 1404 (10th Cir. 1997). In Melton , we held that “[p]roper attribution at sentencing requires the district court to analyze, an d make ‘particularized findings’ about, the sc ope of the specific agre ement the individual defendant joined in relation to the conspira cy as a whole.” 131 F.3d at 1404. The absence of particularized findings is error subject to meaningful review.
In Chee , the defendant did not challenge a l ack of particularized findings on relevant conduct, but rather argued that the district court failed to make particularized findings about his physical condition at se ntencing, which could have justified a downward departure under U.S. S.G. §§ 5H1.1 and 5H1.4. Chee , 514 F.3d at 1115. We concluded that the defendant’s failure to dis pute specific findings at sentencing or even request the downward departure prevented the district court from making adequate findings and therefore waived the issue for appeal because there could be no meaningful review. Id. Here, Mr. Figueroa’s failure to request pa rticularized findings did not relieve the district court of its obligation to make them. The question is whether his counsel’s failure to object to the court’s failure to make par ticularized findings and his acquiescence in the relevant conduct determination waived the par ticularized findings issue for this appeal.-12- At Mr. Figueroa’s sentencing hearing, the district court gave defense counsel the opportunity to object to the PSR’s calculations , but defense counsel did not object. The prosecution then alerted the court and defe nse counsel to the discrepancy between Mr. Figueroa’s PSR and the PSRs of his codefendants. Defense counsel did not object at that point either. Nor did counsel object to the la ck of particularized findings to support the relevant conduct determination. Although the question is cl ose, this case does not present a “classic waiver situation where a party actually identified the i ssue, deliberately considered it, and then affirmatively acted in a manner that abandoned any claim on the issue.” United States v. Cruz-Rodriguez , 570 F.3d 1179, 1185 (10th Cir. 2009) (quotations omitted). Mr. Figueroa’s counsel not only should have object ed to the PSR after being alerted to the discrepancy between Mr. Figueroa ’s and the other defendants’ PSRs, he also should have objected to the court’s failure to make partic ularized findings. But his failure to do the latter more closely resembles in advertent neglect than an in tentional decision to abandon a claim. Mr. Figueroa’s counsel did nothing to indicate that he affirmatively wished to waive the district court’s requirement to make particularized findings. We conclude that Mr. Figueroa’s failure to object to the lack of particularized findings constituted forfeiture, not waiver. Beca use he has forfeited this issue, we review for plain error.-13- B. The Role of Particularized Findin gs in Drug Amount Calculations District courts calculate sentences by fi rst determining the Guidelines section applicable to the statute under which th e defendant was convicted. U.S.S.G. § 1B1.1(a)(1). The jury convicted Mr. Figuero a under 21 U.S.C. § 8 46 for conspiracy to possess with intent to distribute methampheta mine. Section 2D1.1 of the Guidelines applies to “Unlawful Manufacturing, Importi ng, Exporting, or Tra fficking,” including conspiracy to possess with inte nt to distribute. Under that Guideline, the base offense level is determined by the amount of metham phetamine attributable to Mr. Figueroa. Id. § 2D1.1(a)(5). The amount of drugs attributable to Mr. Figueroa at sentencing is not necessarily based on the overall amount involved in the cons piracy for which he was convicted or on the transactions in which he personally pa rticipated. Instead, the sentencing court considers a set of factors known as “relevant conduct.” Id. § 1B1.3. The district court’s determination of relevant conduct was ther efore the critical decision in sentencing Mr. Figueroa. Relevant conduct includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant” and “all reasonably foreseeable acts a nd omissions of others in furtherance of [a] jointly undertaken criminal activity.” Id. § 1B1.3(a)(1)(A), (B). “The scope of the agreement and-14- reasonable foreseeabilit y are independent and necessary el ements of releva nt conduct under § 1B1.3(a)(1)(B).” Green , 175 F.3d at 837 (alterations omitted) (quotations omitted). A defendant is therefore “accoun table for all quantities of contraband with which he was directly involved and . . . all reasonably fores eeable quantities of co ntraband that were within the scop e of the criminal activity that he jointly undertook.” U.S.S.G. §1B 1.3, cmt. n.2. This includes any controlled substan ce that was handled by an other member of the conspiracy if it was “(A) in furtherance of th e jointly undert aken criminal activity; and (B) reasonably foreseeable in connection with that criminal activity.” Id. “Proper attribution at sent encing requires the distri ct court to analyze, and make particularized findings about, the scop e of the specific agreement the indi vidual defendant joined in relation to the conspiracy as a whole.” Melton , 131 F.3d at 1404 (emphasis added) (quotations omitted). When several defendants are convicted for the same conspiracy, the sentencing court must make particulari zed findings regarding the scope of each defendant’s “jointly undertaken criminal activ ity” within the conspiracy, which is “not necessarily the same as the sc ope of the entire conspiracy,” before it can determine the amount of dugs attributable as relevant conduct. U.S.S.G. § 1B1.3, cmt. n.2. Each member of a conspiracy may have had a diffe rent scope of jointly undertaken criminal activity and therefore different relevant conduct. See Melton , 131 F.3d at 1404.-15- C. Plain Error Mr. Figueroa challenges the sentencing court’s failure to make particularized findings about the scope of his jointly under taken criminal activity when it determined the drug quantity attribut ed to him as relevant conduct. Although the district court did not make particularized findings of its own, it adopted the PSR’s findings . Mr. Figueroa argues that this was insufficien t because the PSR also failed to ma ke particularized findings about the scope of his jointly undertake n criminal activity. Because Mr. Figueroa did not object to the PSR at sentencing, we review the district court’s adoption of its findings fo r plain error. United States v. Ivy , 83 F.3d 1266, 1297 (10th Cir. 1996) (“[I]f a defendan t fails to object to his presentence report, he waives his right to challe nge the district cour t’s reliance on it, unless the district cour t’s decision to do so amounts to plain error.”). To prevail under the plain error standard , Mr. Figueroa must show “there is (1) error, (2) that is plain, which (3) affect s substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Teague , 443 F.3d at 1314 (quotations omitted).

a. Error Mr. Figueroa is correct that the sentencing court must make particularized findings about the scope of a defendant ’s jointly undertaken crimin al activity to determine the correct amount of drugs to attribute to him. Green , 175 F.3d at 837; see also Melton , 131-16- F.3d at 1404 (“Proper attribution at sentencing requires the district court to analyze, and make ‘particularized findings’ about, the scope of the specific agreement the individual defendant joined in relation to th e conspiracy as a whole.”). The Government notified the court of proble ms with the PSR that could give rise to an appeal if the cour t accepted the PSR’s dete rmination. The district court nevertheless adopted the PSR “as the findings of the Court on all undisputed factual matters referenced in it” without making particularized findings. ROA, Vol. III at 737. A sentencing court “may accept any undisp uted portion of the presentence report as a finding of fact.” Fed. R. Crim. P. 32(i )(3)(A). The district court did not therefore err by adopting the PSR’s findings. But because th e sentencing court adopted the PSR as its findings, we review the inform ation in the PSR as if it were the findings of the district

court. United States v. Sells , 477 F.3d 1226, 1242 (10th Cir. 2009). Mr. Figueroa’s PSR included information on his charges and convictions and his offense conduct. The PSR did not, however, c ontain particularized findings. It did not discuss Mr. Figueroa’s relevant conduct or explain how the amount of drugs that it attributed to him was reasonably foreseea ble and within the sc ope of his jointly undertaken criminal activity. Even though the district court accepted Mr. Figueroa’s undisputed PSR as its findings of fact, which is allowed u nder Fed. R. Crim. P. Rule 32(i)(3), it nonetheless erred by failing to supp lement those findings with the necessary-17- particularized findings on Mr. Fi gueroa’s relevant conduct. See id. (ordering reconsideration upon remand wher e, “[a]lthough the district court adopted the findings contained in the PSR, the PSR did not make particularized determinations with respect to” the scope of the defendant’s jo intly undertaken criminal activity). b. Plain “To warrant reversal on a plain error standa rd of review, however, this error must also be clear or obvious under well-settled law.” United States v. Mendoza , 543 F.3d 1186, 1192 (10th Cir. 2008) (quota tions omitted). It is well-se ttled law in our circuit that jointly undertaken criminal act ivity and “reasonable foreseeabi lity” are “independent and necessary elements of relevant conduct” that require particularized findin gs by the district court before it can attribute th e conduct of other co nspiracy members to the defendant as relevant conduct unde r the Guid elines. Green , 175 F.3d at 837 (quotati ons omitted). Where, as here, the PSR has not made pa rticularized findings to suppo rt relevant conduct, we have held that sentencing courts may not simply accept the drug quantity attributed in a PSR without making partic ularized findings. Sells , 477 F.3d at 1242. Mr. Figueroa challenges the district court’s failure to make partic ularized findings on jointly undertaken criminal activity. Sells and Green leave no room for doubt that the district court must make particularized findi ngs (or adopt particularized findings made in the PSR) on both jointly unde rtaken criminal activity and re asonable foreseeability before-18- attributing the actions of coconspirators to a defendant as relevant conduct. The court’s failure to make those findings on jointly und ertaken criminal activit y was therefore plain

error.

c. Substantial rights The third factor of plain error review requires that the error affected Mr. Figueroa’s substantial rights. United States v. Teague , 443 F.3d 1310, 1314 (10th Cir. 2006). “Ordinarily, an error a ffects substantial rights only if it affected the outcome of the district court proceedings.” United States v. Herron , 432 F.3d 1127, 1134 (10th Cir. 2005) (quotations omitted). To satisfy this el ement of the plain error test, Mr. Figueroa “must show a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Clark , 415 F.3d 1234, 1240 (10th Cir. 2005) (quotations omitted). The district court committed an obvious error by failing to make the necessary particularized findings. As explained above, in a drug conspiracy, the district court is required to make particularized findings ab out the scope of the defendant’s jointly undertaken criminal activity and the foreseeability of the co conspirator’s actions to the defendant. Once it has made particularized findings, the district court must apply the Guidelines to those findings to determine th e amount of drugs that it should attribute to the defendant as relevant condu ct. The Guidelines commenta ry is “authoritative unless it-19- violates the Constitution or a federal statute, or is plainly inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States , 508 U.S. 36, 38 (1993). Had the district court made particularized findings, it is reasonably probable that it would have applied a different Guidelines range for sentencing, leading to a much different outcome. Sells , 477 F.3d at 1242. (“Upon clos e examination of the evidence, the district court might agree with [the defe ndant] that his [jointly undertaken criminal activity] was limited and decrease his [Guidelines range] accordingly.”). The Guidelines comm entary to § 1B1.3 gives ex amples of situations where coconspirators look as though they are working together but are not engaged in jointly undertaken criminal activity. That commentary clarifies that even “a street-level drug dealer who knows of other street-level drug dealers in the same ge ographic area who sell the same type of drug . . . [and] share a common source of suppl y” cannot be held “accountable for the quantities of drugs sold by the other street-level dealers” unless he “pools his resources and profits” with them. U.S.S.G. § 1B1.3, cmt. n.2(c), illus. 6. Based on the evidence presented at trial, Mr. Figueroa knew of Mr. Campos, and Mr. Gonzalez’s number was stored in his phone, but there was no evidence that he engaged in any drug de alings with them. Mr. Figueroa received delivery from Mr. Villa and Mr. Guzman, and Mr. Villa’s number was also in his phon e. But criminals engaged in the same illegal activity or working in the same ar ea do not engage in jointly-20- undertaken criminal activity unless they work together, sharing supplies and revenues.
See U.S.S.G. § 1B1.3, cm t. n.2(c), illus. 6; see also United States v. Ekanem , 555 F.3d 172, 176 (5th Cir. 2009) (“[M]ere awaren ess that [co-defendants were] operating an identical fraudulent scheme is insufficient to hold [defendant] responsible for [their] actions” at sentencing.). No evidence indicated that Mr. Figueroa in tended to engage in jointly undertaken criminal activity with Mr. Campos, Mr. Villa, or Mr. Gonzalez outside of his three purchases. Under the Guidelines commentary, the evidence di d not establish that all of the conspiracy transactions were within th e scope of Mr. Figueroa’ s jointly undertaken criminal activity. Such proof is require d to attribute all of the drugs from the conspiracy’s transactions to Mr. Figueroa as relevant conduct. Because the district court attributed all of the drugs in the conspiracy to Mr. Figueroa as relevant conduct without maki ng particularized findings about the actual scope of his jointly undertaken criminal acti vity, his total offense level was 34, and his advisory Guidelines range was 151 to 188 months. Had the sentencing court made the necessary particularized findings, it is at least reasonably probable that it would have attributed to Mr. Figueroa only the amount of drugs from transactions in which he was directly involved—56.7 grams. His base offe nse level would then have been 26, and his-21- Guidelines range would have been 63 to 78 months. See U.S.S.G. § 2D1.1(c)(7); id. Ch. 5, Pt. A (sentencing table). “Circuit precedent establishes that the a pplication of the wr ong guideline range through obvious error constitute s a fundamental error affecti ng substantial rights within the meaning of Rule 52(b).” United States v. Johnson , 414 F.3d 1260, 1264 (10th Cir. 2005). The district court’s failure to make pa rticularized findings therefore affected Mr. Figueroa’s substantial rights. d. Serious effect on the fairness, integrity , or reputation of judicial proceedings The fourth factor of plain error review requ ires that the error “seriously affect[ed] the fairness, integrity, or public re putation of judicial proceedings.” Teague , 443 F.3d at 1314. When we apply the fourth element of plain error review to forfeited sentencing errors, the “key concern” is “whether corr ect application of the sentencing laws would likely significantly reduce the le ngth of the sentence.” United States v. Cordery , 656 F.3d 1103, 1108 (10th Cir. 2011). We cannot say for certain that particul arized findings would have yielded a different sentence. But the foregoing analys is shows that “the district court would likely impose a significantly lighter sentence on remand, ” which satisfies the fourth element of plain error review. United States v. Thomas , 410 F.3d 1235, 1249 (10th Cir. 2005) (emphasis added); see also United States v. Meacham , 567 F.3d 1184, 1190 (10th Cir.-22- 2009) (holding that satisfaction of the fourth fa ctor of plain error review is satisfied by “a strong possibility of receiving a significantly lo wer sentence” (emphasis added) (quotations omitted)). “Not ever y error resulting in an increa sed sentence will meet this standard.” Cordery , 656 F.3d at 1108. But in Mr. Figueroa’s case, the sentence he received was significantly longer than what he likely would ha ve received if the error had not occurred. As explained above, it is at least reasonably probable that the district court’s failure to make particularized findings led it to apply a Guidelines range of 151 to 188 months, more than double th e 63 to 78 month Guidelines range that Mr. Figueroa probably should have received based on the evidence from tr ial. At sentencing, the district court said that it gave “significa nt weight” to the Guidelines calculation and explained that it was sentencing Mr. Figueroa below the Guidelines range based on his lack of prior convictions and good empl oyment history. ROA, Vol. II at 742

. Had the court applied the same weight to the 63 to 78 month Guidelines rang e, there is a “strong possibility” the court would ha ve given Mr. Figueroa a se ntence “significantly lighter” than the one he is currently serving. See Cordery , 656 F.3d at 1108 (holding that the likelihood of a sentence that was five months or ten percent longer than it should have been satisfied the fourth el ement of plain error review).
* * *-23- The district court’s failure to make par ticularized findings was an obvious error and likely resulted in a Guidelines range that was calculated in conflict with controlling law in the Guidelines comment ary. This error was plain, affected Mr. Figueroa’s substantial rights, and had a serious effect on the fairness and integrity of his judicial proceedings.
IV. CONCLUSION The district court plainly erred by re lying on the undisputed PSR instead of making particularized findings. We reverse the sentence imposed by the district court and remand for resentencing.