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, Assistant Federal Public Defender, (Warren R. Williamson, Interim 

Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, 

Denver, Colorado, for Defendant-Appellant. 

David P. Petermann, Assistant United States Attorney (Sanford C. Coats, United States 

Attorney, Suzanne Mitchell, Assistant United States Attorney, with him on the brief), 

Office of the United States Attorney for the 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
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I. INTRODUCTION

In 2011, a methamphetamine dealer in Oklahoma City and several of his buyers 

and sellers were indicted for their alleged involvement in a methamphetamine 

distribution conspiracy. Jesus Figueroa-Labrada, one of the buyers, was convicted of 

conspiring to possess methamphetamine with intent to distribute. Mr. Figueroa was 

involved in only three of the conspiracy’s eight drug transactions, but his presentence 

investigation report (“PSR”) calculated his advisory sentencing range under the U.S. 

Sentencing Guidelines (the “Guidelines”) by attributing to him as relevant conduct all of 

the methamphetamine distributed through the conspiracy, more than doubling his 

Guidelines range. The sentencing court adopted the PSR’s Guidelines calculation to 

determine Mr. Figueroa’s sentence but made no particularized findings 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 jurisdiction 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 
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City. The agencies wiretapped suspect Rafael Quintero-Rivas’s phone. From monitoring 

his calls, the Government identified eight methamphetamine transactions arranged by Mr. 

Quintero-Rivas. Mr. Figueroa purchased methamphetamine 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. Figueroa, Mr. Quintero-Rivas referenced 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 his phone the numbers of Mr. 

Quintero-Rivas and two other sellers, Mr. Villa and Jose Angel Gonzalez-Gondarilla. All 

seven individuals—Mr. Quintero-Rivas, Mr. Figueroa, Mr. Villa, Mr. Guzman, Mr. 

Campos, Mr. Gonzalez, and another buyer, Mr. Lechuga—were indicted 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 telephone to facilitate the 

distribution of methamphetamine, in violation of 21 U.S.C. § 843(b). 

At trial, the Government produced evidence that Mr. Quintero-Rivas facilitated 

eight methamphetamine transactions. Only three of the eight transactions involved Mr. 

Figueroa. The evidence showed that the conspiracy began on April 22, 2011, when Mr. 

Figueroa purchased one-half ounce of methamphetamine from Mr. Quintero-Rivas. Mr. 

Figueroa later purchased another one-half ounce 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. Figueroa 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 prosecution 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 transactions classified as “small ones,” for which no 

calculation is possible. 
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established a single conspiracy, making each defendant responsible for all of the 

methamphetamine. 

The jury convicted Mr. Figueroa of conspiracy, as well as the four other counts in 

the indictment. The court asked the jury to complete a special interrogatory 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 jury three choices: (1) 500 grams 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 involved in the crime.” Second Suppl. ROA at 44. The 

jury instructions added, “The government is required to prove the quantity of the 

controlled substance involved in an offense 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 charged for dealing with him. It is not clear whether the 

jury found there was one conspiracy that included Mr. Quintero-Rivas and the others, or 

whether there were instead several smaller conspiracies revolving around Mr. QuinteroRivas, one of which was comprised of Mr. Quintero-Rivas and Mr. Figueroa. If the 
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former, the jury should have checked the “500 grams or more” line on the special verdict 

interrogatory form for Mr. Figueroa. If the jury found that Mr. Figueroa’s conspiracy 

was only with Mr. Quintero-Rivas, then it correctly checked “50 grams or more, but less 

than 500 grams of . . . methamphetamine” as consistent with the 56.7 grams involved in 

the three transactions in which Mr. Figueroa participated. Resolution of the jury’s actual 

finding of one large conspiracy or several smaller ones is unnecessary to our analysis of 

this appeal, except to point out that a conspiracy limited to Mr. Figueroa, Mr. QuinteroRivas, and 56.7 grams of methamphetamine does 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 included in his relevant conduct the 746.19 grams of 

methamphetamine mixture from all eight transactions 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 base offense level of 34.2

 Combined with Mr. Figueroa’s 

 

2

 The Guidelines convert all drug amounts to marijuana equivalencies before 

determining the base offense level. The total amount of methamphetamine in the 

Continued . . . 
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criminal history category I, his advisory Guidelines range was 151 to 188 months. The 

PSR included no particularized findings to support this relevant conduct attribution. 

In contrast, the PSRs for each of the other three codefendants attributed to them 

amounts consistent with what the jury marked 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 offense 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 the PSR. They did not, and his counsel stated 

he was ready to proceed. The judge again asked, “[I]s there any suggestion . . . of any 

inaccuracies in the presentence report or anything of that sort that your client has a 

______________________________________ 

Cont. 

conspiracy here is equivalent to 4,262.18 kilograms of marijuana, which produces a base 

offense level of 34. 
-8- 

concern with?” ROA, Vol. III at 733. Mr. Figueroa’s counsel replied, “I think 

everything is up to snuff as far 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 PSR, which attributed 746.19 grams of 

methamphetamine mixture to him, was not consistent with his special interrogatory. This 

differed from the other defendants’ PSRs, which were consistent with their special 

interrogatories. The prosecution asserted that 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 prosecution offered to provide 

the court with a new sentencing calculation based on that amount. 

The district court decided that if Mr. Figueroa’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 identified 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 
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findings of the Court on all undisputed factual matters referenced in it.” Id. at 737. The 

court made no particularized findings on relevant conduct and failed to note the absence 

of particularized findings in the PSR. 

The district court adopted the PSR’s calculation of 746.19 grams attributable to 

Mr. Figueroa and its Guidelines range calculation 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 sentence of 120 months in prison3

 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 the Guidelines calculation in the PSR, which 

attributed to Mr. Figueroa the drug amount from 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” charges) and 48 months for counts 6 and 13 (the 

“unlawful use of a communication facility” counts), to run concurrently. 
-10- 

by failing to make particularized findings concerning whether all of the drug sales were 

properly attributable to Mr. Figueroa. 

We reverse and remand on this second issue because the district court failed to 

make particularized findings. 

A. Waiver or Forfeiture

The district court adopted the PSR’s relevant conduct attribution of drugs to Mr. 

Figueroa. The court did not make and the PSR did not contain any particularized 

findings to support the attribution. 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 particularized 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 
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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, and make ‘particularized 

findings’ about, the scope of the specific agreement the individual defendant joined in 

relation to the conspiracy 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 lack of particularized findings on 

relevant conduct, but rather argued that the district court failed to make particularized 

findings about his physical condition at sentencing, 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 dispute 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 particularized 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 particularized findings and his acquiescence in the 

relevant conduct determination waived the particularized findings issue for this appeal. 
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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 defense 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 lack of particularized findings to support the 

relevant conduct determination. 

Although the question is close, this case does not present a “classic waiver 

situation where a party actually identified the issue, 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 objected 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 particularized findings. But his failure to do the 

latter more closely resembles inadvertent neglect than an intentional 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. Because he has forfeited this issue, we review 

for plain error. 
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B. The Role of Particularized Findings in Drug Amount Calculations

District courts calculate sentences by first determining the Guidelines section 

applicable to the statute under which the defendant was convicted. U.S.S.G. 

§ 1B1.1(a)(1). The jury convicted Mr. Figueroa under 21 U.S.C. § 846 for conspiracy to 

possess with intent to distribute methamphetamine. Section 2D1.1 of the Guidelines 

applies to “Unlawful Manufacturing, Importing, Exporting, or Trafficking,” including 

conspiracy to possess with intent to distribute. Under that Guideline, the base offense 

level is determined by the amount of methamphetamine 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 conspiracy for which he was convicted or on 

the transactions in which he personally participated. 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 therefore 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 and omissions of others in furtherance of [a] jointly 

undertaken criminal activity.” Id. § 1B1.3(a)(1)(A), (B). “The scope of the agreement and 
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reasonable foreseeability are independent and necessary elements of relevant conduct under 

§ 1B1.3(a)(1)(B).” Green, 175 F.3d at 837 (alterations omitted) (quotations omitted). 

A defendant is therefore “accountable for all quantities of contraband with which he 

was directly involved and . . . all reasonably foreseeable quantities of contraband that were 

within the scope of the criminal activity that he jointly undertook.” U.S.S.G. §1B1.3, cmt. 

n.2. This includes any controlled substance that was handled by another member of the 

conspiracy if it was “(A) in furtherance of the jointly undertaken criminal activity; and (B) 

reasonably foreseeable in connection with that criminal activity.” Id.

“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 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 particularized findings regarding the scope of each 

defendant’s “jointly undertaken criminal activity” within the conspiracy, which is “not 

necessarily the same as the scope 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 different scope of jointly undertaken criminal 

activity and therefore different relevant conduct. See Melton, 131 F.3d at 1404. 
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C. Plain Error

Mr. Figueroa challenges the sentencing court’s failure to make particularized 

findings about the scope of his jointly undertaken criminal activity when it determined 

the drug quantity attributed 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 insufficient because the PSR also failed to make particularized findings about 

the scope of his jointly undertaken criminal activity. Because Mr. Figueroa did not object to 

the PSR at sentencing, we review the district court’s adoption of its findings for plain error. 

United States v. Ivy, 83 F.3d 1266, 1297 (10th Cir. 1996) (“[I]f a defendant fails to object to 

his presentence report, he waives his right to challenge the district court’s reliance on it, 

unless the district court’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) affects 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 criminal activity to determine the 

correct amount of drugs to attribute to him. Green, 175 F.3d at 837; see also Melton, 131 
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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 the conspiracy as a whole.”). 

The Government notified the court of problems with the PSR that could give rise to 

an appeal if the court accepted the PSR’s determination. 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 undisputed 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 the sentencing court adopted the PSR as its 

findings, we review the information 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, contain 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 foreseeable and within the scope 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 under Fed. R. Crim. P. Rule 

32(i)(3), it nonetheless erred by failing to supplement those findings with the necessary 
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particularized findings on Mr. Figueroa’s relevant conduct. See id. (ordering 

reconsideration upon remand where, “[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 jointly undertaken criminal activity). 

b. Plain

“To warrant reversal on a plain error standard 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) (quotations omitted). It is well-settled law in our circuit that 

jointly undertaken criminal activity and “reasonable foreseeability” are “independent and 

necessary elements of relevant conduct” that require particularized findings by the district 

court before it can attribute the conduct of other conspiracy members to the defendant as 

relevant conduct under the Guidelines. Green, 175 F.3d at 837 (quotations omitted). Where, 

as here, the PSR has not made particularized findings to support relevant conduct, we have 

held that sentencing courts may not simply accept the drug quantity attributed in a PSR 

without making particularized findings. Sells, 477 F.3d at 1242. 

Mr. Figueroa challenges the district court’s failure to make particularized findings on 

jointly undertaken criminal activity. Sells and Green leave no room for doubt that the 

district court must make particularized findings (or adopt particularized findings made in 

the PSR) on both jointly undertaken criminal activity and reasonable foreseeability before 
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attributing the actions of coconspirators to a defendant as relevant conduct. The court’s 

failure to make those findings on jointly undertaken criminal activity 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 affects 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 element 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 about the scope of the defendant’s jointly 

undertaken criminal activity and the foreseeability of the coconspirator’s actions to the 

defendant. Once it has made particularized findings, the district court must apply the 

Guidelines to those findings to determine the amount of drugs that it should attribute to 

the defendant as relevant conduct. The Guidelines commentary is “authoritative unless it 
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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 close examination of the evidence, 

the district court might agree with [the defendant] that his [jointly undertaken criminal 

activity] was limited and decrease his [Guidelines range] accordingly.”). 

The Guidelines commentary to § 1B1.3 gives examples 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 geographic area who sell 

the same type of drug . . . [and] share a common source of supply” 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 dealings with them. Mr. Figueroa received delivery from Mr. Villa 

and Mr. Guzman, and Mr. Villa’s number was also in his phone. But criminals engaged 

in the same illegal activity or working in the same area do not engage in jointly 
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undertaken criminal activity unless they work together, sharing supplies and revenues. 

See U.S.S.G. § 1B1.3, cmt. n.2(c), illus. 6; see also United States v. Ekanem, 555 F.3d 

172, 176 (5th Cir. 2009) (“[M]ere awareness 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 intended 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 did not establish that all of 

the conspiracy transactions were within the scope of Mr. Figueroa’s jointly undertaken 

criminal activity. Such proof is required 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 making particularized findings about the actual 

scope of his jointly undertaken criminal activity, 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 offense 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 application of the wrong guideline range 

through obvious error constitutes a fundamental error affecting 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 particularized 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 requires that the error “seriously affect[ed] 

the fairness, integrity, or public reputation 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 correct application of the sentencing laws would 

likely significantly reduce the length of the sentence.” United States v. Cordery, 656 

F.3d 1103, 1108 (10th Cir. 2011). 

We cannot say for certain that particularized findings would have yielded a 

different sentence. But the foregoing analysis 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 factor of plain error review is satisfied by “a 

strong possibility of receiving a significantly lower sentence” (emphasis added) 

(quotations omitted)). “Not every error resulting in an increased 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 have 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 the 63 to 78 month Guidelines range that Mr. Figueroa 

probably should have received based on the evidence from trial. At sentencing, the 

district court said that it gave “significant 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 employment history. ROA, Vol. II at 742. Had the 

court applied the same weight to the 63 to 78 month Guidelines range, there is a “strong 

possibility” the court would have given Mr. Figueroa a sentence “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 element of plain error review). 

* * * 
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The district court’s failure to make particularized findings was an obvious error 

and likely resulted in a Guidelines range that was calculated in conflict with controlling 

law in the Guidelines commentary. 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 relying on the undisputed PSR instead of 

making particularized findings. We reverse the sentence imposed by the district court 

and remand for resentencing.