FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 May 31, 2007

THOMAS K. KAHN

CLERK

Honorable Tom Stagg, United States District Judge for the Western District of *

Louisiana, sitting by designation.

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-12663

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D. C. Docket No. 05-20934-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ALEJANDRO RAFAEL SANCHEZ, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 31, 2007)

Before CARNES and WILSON, and STAGG, District Judge. *

PER CURIAM:
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After pleading guilty to one count of conspiring to possess with intent to

distribute 5 or more grams of cocaine base and 500 or more grams of cocaine

powder, Alejandro Rafael Sanchez was sentenced to 70 months imprisonment. He

raises two issues on this appeal, one of which the government concedes.

The government acknowledges, as it should, that the district court

committed plain error in sentencing Sanchez based on an erroneous pre-sentence

investigation report that transposed the quantity of drugs for which Sanchez was

responsible with the quantity of drugs attributed to Roberto Perez-Pupo, another

drug dealer. For that reason, we must vacate Sanchez’s sentence and remand the

case to the district court for further proceedings.

The second issue Sanchez raises involves his contention that his rights

under U.S.S.G. § 1B1.8 were violated. This contention is based on his assertion

that the Miami Dade Police Department officers who arrested him promised him

that if he cooperated any further evidence that they discovered would not be used

against him. Other drugs were discovered as a result of Sanchez’s cooperation and

he argues that those drugs cannot be considered in calculating his base offense

level. As a matter of fact, those other drugs were not actually considered in

determining Sanchez’s base offense level because, as we have explained in the

preceding paragraph, the district court erroneously based his sentence on the drugs
This case was originally scheduled for oral argument, but it was decided on the briefs

**

and record alone pursuant to 11th Cir. R. 34-3(f).

3

attributable to another dealer. That is an error which will be corrected on remand. 

The § 1B1.8 issue may well come up again in the re-sentencing on remand,

but it is not actually before us now because the only sentence that we do have

before us was not actually affected by any asserted error involving that guidelines

provision. The error in transposing the drug quantities prevented § 1B1.8. from

affecting the sentence that was actually imposed on Sanchez. 

We do, however, take this opportunity to direct the district court to make

findings concerning what, if anything, the police officers said to Sanchez about

whether any drugs found as a result of his cooperation would not be considered

against him at sentencing. Sanchez maintains that statements of that nature were

made, and the district court assumed that they were and rejected his argument,

anyway. If the issue is going to come back to us in an appeal from the resentencing, as it may, we would prefer to decide it based on facts instead of

assumptions. 

VACATED and REMANDED.

**