* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 7 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. FIDEL ENRIQUE RUELAS,

Defendant-Appellant. No. 00-3354 (D.C. No. 00-CR-20032-04-CM)

(D. Kan.)

ORDER AND JUDGMENT *

Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Defendant was charged in four counts of a ten-countindictment with conspiracy to possess with intent to distribute ill egal drugs (heroin), conspiracy to introduce contraband into a prison facility, and il legal use of a communication facility in furtherance of criminal activities. In exchange for dismissal of three counts, defendant pleaded guilty to one count of vi olating 21 U.S.C. § 843(b), use of a communication facility in the furtherance of c riminal activity. He appeals only his sentence. We have jurisdiction under 28 U .S.C. § 1291, and we affirm. His argument on appeal is that the district court e rred in increasing his offense level by two levels under USSG § 2D1.1(b)(3 ) by finding that the object of the offense was the distribution of a controlledsubstance in a prison. He contends that his plea was not to the use of a comm unication facility to attempt distribution, but merely to attempt to possess hero in. “We review the district court’s legal interpretation and application of the sentencing guidelines de novo and review the court’s factual findings for clear e rror, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Henry , 164 F.3d 1304, 1310 (10th Cir.), cert. denied , 527 U.S. 1029 (1999). In his petition to enter his plea, defendant repres ented that he had committed the acts charged in Count 9 of the indictment, specifically that he unlawfully used a communication facility to attemptto possess 19.2 grams of heroin. R. Vol. I, doc. 76 (plea petition) at 1. He further understood that the-3-

maximum sentence was four years’ imprisonment with a year of supervised release and a fine of $30,000. Id. at 2. The plea petition also acknowledges that there was no limitation on the information the judg e could consider at sentencing and that the court could take into account “all rel evant criminal conduct, which may include counts to which [defendant had not plea ded] guilty or been convicted.” Id. at 4. The plea agreement states that defendant pleaded gu ilty to Count 9 charging him with using a telephone “to commit, cause, and t o facilitate the attempted possession of 19.2 grams of heroin.” R. Vol. I, do c. 76 (plea agreement) at 1. Initially the typed version of the agreement contai ned the language “attempted possession with intent to distribute a controlled substance.” Id. This language was changed from “with intent to distribute a contr olled substance” to “possession of 19.2 grams of heroin.” Id . The plea agreement also states that although the remaining counts would be dismissed, the dismissed counts would be included in the Sentencing Guideline range calculation as relev ant conduct. R. Vol. I, doc 76 (plea agreement) at 2. Moreover, as part of the plea the agreement, defend ant admitted that The defendant, along with 5 other defendants, is ch arged with conspiracy to smuggle a controlled substance into the United States Penitentiary at Leavenworth, Kansas. The defendant , using a communication facility, that is, a telephone, would contact individuals located in California, to obtain heroin . The heroin was packaged in color coded balloons.-4- Each balloon represented the inmate for whom the he roin was destined. The heroin was then sent to a co-defendant (Hill) in Oklahoma. Hill would be instructed to transport th e heroin to the prison, and to smuggle it in during a visit with an other inmate, Kenneth Taylor, also a co-defendant in this case. Hill was to place the balloons in her mouth and then transfer the her oin to Taylor during a kiss. Tape recorded conversations were intercepted between the inmates and others establishing the conspiracy. The heroin was seized from Gladys Hill, packaged in the color code d balloons. Id. at 2-3. At the plea hearing, defendant acknowledged underst anding that there was no limit to the information the court could conside r, “provided the information was reliable and this includes relevant informationrelated to any counts against you to which you have not plead guilty or been conv icted.” Plea Tr. at 12. He further admitted using a telephone to try to obtain19.2 grams of heroin while incarcerated at the United States Penitentiary at Leavenworth. Id. at 19. The presentence report listed the charges against a ll the defendants including the two conspiracy counts against defendant: conspiracy to smuggle a controlled substance into the prison and conspira cy to attempt to possess with the intent to distribute approximately 19.2 grams o f heroin. The report further outlined the offense conduct, including the telepho ne calls which had alerted authorities to the scheme and the particular inmate s involved, and the interception of the heroin before it reached the prisoners. With several exceptions that did not impact the guideline calculations, defendant did no t challenge the factual-5-

recitation in the report, nor did he challenge the base offense level computation. Rather, he challenged the addition of the specific offense characteristic of two points under USSG § 2D1.1(b)(3) “[i]f the object of the offense was the distribution of a controlled substance in a prison . . . .” The district court must consider all relevant conduct at sentencing. See United States v. Washington , 11 F.3d 1510, 1516 (10th Cir. 1993). Relevant conduct “is pertinent to determining the base level offense level and the specific offense characteristics.” United States v. McGee , 7 F.3d 1496, 1499 (10th Cir. 1993) (citing USSG § 1B1.3(a)(ii)). Moreover, the scope of that conduct includes “all reasonably foreseeable acts and omissions of o thers in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction.” USSG § 1B1.3(a)(1)(B). At the sentencing hearing, The FBI agent in charge of investigating crimes at Leavenworth testified at length to the acts of t he various defendants, including numerous telephone calls, the value of the drugs in volved, the method of payment used for prison drug trafficking (with the money tr ading hands on the outside), and the methods of determining which prisoners belo ng to which group. The agent further explained based on his experience andinterviews with numerous other inmate drug smugglers, that the standard oper ating procedure was that a third of the amount would go to the person outsid e bringing the drugs in, a third-6-

would belong to the prisoner, and a third would be sold. Sentencing Tr. at 21. The purpose of the conspiracy was to enable the pri soners to raise money to help care for their families on the outside. See id. The district court recognized that the plea agreeme nt itself had been modified by the defendant “in the sense that it ref lects that the defendant wrote down that he intended to plead guilty to Count 9 as it relates to the possession of the 19.2 grams of heroin.” Sentencing Tr. at 42-43 . The court further noted, however, that in other sections of the plea agreeme nt, defendant had acknowledged he would be subject to “the relevant c onduct which is set out to include the other counts to which he’s not pleading guilty to. Id. at 43; see also R. Vol. I, doc 76 (plea agreement) at 2 (“The gover nment further states that Counts 1 through 8, and 10 of the Indictment filed March 2, 2000 will be dismissed at the time of sentencing, however, these counts will be included in the calculation of the Guideline range as relevant cond uct.”). Thus, even if defendant only pleaded guilty to using a communicat ion facility to attempt to possess the drugs, the relevant conduct for sentenc ing purposes included the dismissed counts of conspiracy to possess with the intent to distribute and conspiracy to introduce contraband into the prison. The court further held that “the intent of the conspiracy to distribute the her oin within the prison is attributable to each defendant.” Sentencing Tr. at43. The court further found-7-

that the evidence indicated defendant’s awareness o f the conspiracy and that defendant had taken affirmative steps in furtherance of the conspiracy. Id. at 43-44. Defendant does not challenge these findi ngs. The court further determined that “this was a joint ly undertaken criminal activity involving defendant and several other indi viduals to smuggle heroin into the prison.” Id. at 44. The court further found that defendant had assisted in the endeavor and “knew of this scheme and took affirmat ive steps to ensure heroin was brought into the prison.” Id. The court concluded that even if defendant did not distribute (or intend to distribute) the heroin , he remained “responsible for the acts of others who are going to actually bring the drugs into the prison and distribute them to the defendant and other inmates involved in this conspiracy.” Id. at 45. Even if defendant was not intending to distribute h eroin within the prison, he is responsible, under the principle of relevant conduct, for “all reasonably foreseeable acts and omissions of others in further ance of the jointly undertaken criminal activity.” USSG § 1B1.3(a)(1)(B). The di strict court’s findings on forseeability are findings of fact reversible for clear error. See United States v. Tagore , 158 F.3d 1124, 1127 (10th Cir. 1998). We also “r eview the factual findings supporting the application of a particularSentencing Guideline provision for clear error.” United States v. Lang , 81 F.3d 955, 968 (10th Cir. 1996).-8-

Having reviewed the sentencing transcript, includin g the FBI agent’s testimony outlining the conspiracy and defendant’s involvement, we conclude that the district court’s application of the special off ense characteristic for an offense having the objective of distributing a controlled s ubstance within a prison is not clearly erroneous.
AFFIRMED.

Entered for the Court
Wade Brorby Senior Circuit Judge