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United States v. Jose Jesus Varela, 96-3872 (1998)

Court: Court of Appeals for the Eighth Circuit Number: 96-3872 Visitors: 6
Filed: Mar. 16, 1998
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-3872WM _ United States of America, * * Appellee, * * v. * On Appeal from the United * States District Court * for the Western District Jose Jesus Varela, * of Missouri. * * Appellant. * _ Submitted: January 15, 1998 Filed: March 16, 1998 _ Before RICHARD S. ARNOLD, Chief Judge, HANSEN and MURPHY, Circuit Judges. _ RICHARD S. ARNOLD, Chief Judge. In this case, Jose Jesus Varela appeals the sentence imposed by the District 1 Court foll
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                           United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   _____________

                                  No. 96-3872WM
                                  _____________

United States of America,                  *
                                           *
              Appellee,                    *
                                           *
         v.                                *   On Appeal from the United
                                           *   States District Court
                                           *   for the Western District
Jose Jesus Varela,                         *   of Missouri.
                                           *
                                           *
              Appellant.                   *

                                    ___________

                              Submitted: January 15, 1998
                                  Filed: March 16, 1998
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, HANSEN and MURPHY, Circuit
      Judges.
                          ___________

RICHARD S. ARNOLD, Chief Judge.


      In this case, Jose Jesus Varela appeals the sentence imposed by the District
     1
Court following his guilty plea for drug-related crimes. Varela argues that the District



         1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
Court incorrectly calculated his base offense level for purposes of the federal
Sentencing Guidelines. We affirm.

                                           I.

      Varela pleaded guilty to both counts of a two-count indictment: conspiracy to
possess with intent to distribute five kilograms or more of cocaine and attempt to
possess with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 846, 841(a)(1), (b)(1)(A) (1994).

        Varela described his participation in the conspiracy that led to his arrest. In
December 1995, Varela met his cousin, Loreto Romero, in a hotel room in North
Kansas City. Romero had fronted cocaine to Don Flores, who sold the cocaine to
buyers and then paid Romero for the cocaine. In the hotel room, Romero told Varela
that he was dissatisfied with the time it took for Flores to find buyers and asked Varela
to “start finding buyers . . . for cocaine and stuff like that.” Varela Plea Tr. at 14.
Varela and Romero also discussed the process of smuggling cocaine from California
to Kansas City. Varela then left the hotel room. A month later, on the evening of
January 19, 1996, Varela’s brother, Erasmo Garcia Lajam, asked Varela to drive him
to the airport in Kansas City to pick up Romero and Donald Baxter, Romero’s partner.
Varela agreed. Afterward, Varela, Lajam, Romero, and Baxter went out to a restaurant
and bar and began drinking. Over the course of the evening, Varela learned that the
other three planned to meet a courier named Edgard Duarte at an Amtrak station early
the next morning and pick up approximately 18 kilograms of cocaine. At one point,
they asked Varela if he would procure buyers for the cocaine. Varela then asked a man
in the bar if he wanted to buy cocaine, and the man agreed to buy two kilograms.

       Although the four men did not know it, Duarte, the courier, had been arrested
earlier that day on an Amtrak train in Albuquerque, New Mexico, and the 21.28
kilograms of cocaine he was transporting to Kansas City had been seized. Duarte

                                          -2-
agreed to cooperate with the Drug Enforcement Agency in a controlled delivery of
cocaine to Romero and Baxter. At 6:30 the next morning, Varela drove Romero,
Lajam, and Baxter to the Amtrak station in Kansas City. Baxter went inside the station
to meet the courier while the other three waited in Varela’s car. Baxter was
apprehended by DEA agents after he entered the station, and Lajam, Romero, and
Varela were arrested in the parking lot.

       At the guilty-plea hearing Varela told the court that although he did not intend to
distribute all of the cocaine he and the other three men were to pick up at the Amtrak
station, he knowingly joined a group that was going to sell five or more kilograms of
cocaine. Varela explained that while he did not know exactly how much cocaine he,
Baxter, Romero, and Lajam were to pick up at the train station, he knew that it was
“about 18 kilos” and that “I thought 18 kilos wasn’t that much, the way that they was
talking.” Varela Plea Tr. at 15, 21. At Varela’s sentencing hearing, the District Court
calculated a total offense level of 30 and a criminal history category of IV, for a
Sentencing Guidelines range of 135 to 168 months. The Court then sentenced Varela
to 135 months’ imprisonment, to be followed by five years’ supervised release, and a
$100 special assessment. Varela Sentencing Tr. at 65, 69. The offense level of 30 was
based on the District Court’s finding that Varela was responsible for all 21 kilograms
of cocaine seized from the drug courier on January 19. 
Id. at 51.
Varela now appeals
the calculation of his offense level, arguing that he should be responsible only for two
kilograms of cocaine, and that the District Court failed to make adequate factual
findings to support the sentence.

                                           II.

      The sentence in this case is governed by U.S.S.G. § 1B1.3, having to do with
“relevant conduct.” In brief, the base offense level is determined on the basis of acts
committed by the defendant himself, § 1B1.3(a)(1)(A), and, in the case of a jointly
undertaken criminal activity, all reasonably foreseeable acts and omissions of others in

                                           -3-
furtherance of the jointly undertaken criminal activity, § 1B1.3(a)(1)(B). In the present
case, the District Court did not specifically refer to either subparagraph (A) or
subparagraph (B) when holding Varela accountable for 21 kilograms of cocaine. It is,
however, well established that we may affirm a sentence on any grounds supported by
the record. See United States v. Strange, 
102 F.3d 356
, 360 n.4 (8th Cir. 1996). In the
case of a conspiracy to transport and convey narcotics, all members of the conspiracy
are directly accountable under subparagraph (A) for the quantity of drugs involved. 
Id. at 360-61.
We therefore need not address the foreseeability requirement of
subparagraph (B). Under the facts of this case, Varela is clearly responsible for the
entire shipment.

        At the hearing, Varela admitted that he had discussed selling drugs with Romero,
and that he had asked a patron at the bar if he wanted to buy cocaine from Romero.
Moreover, Varela said that on the night before he drove Romero, Lajam, and Baxter to
the train station, he was fully aware of the purpose of the trip: “And we kept on drinking
and everything, and by the time about 3 o’clock came, I already knew this whole
situation, about 18 kilos stuff.” Varela Plea Tr. at 15. Because Varela admitted that he
knowingly entered into a conspiracy to possess cocaine, the District Court properly held
him accountable for the full amount of cocaine that was to be obtained by him and by
his co-conspirators. The evidence indicates that Varela expected that the shipment
might well exceed 18 kilos, and in any event the difference between 18 and 21 is not
material for Guidelines purposes.

      Affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                           -4-

Source:  CourtListener

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