Argued and Submitted June 7, 2013—Seattle, Washington
Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding D.C. No. 3:09-cr-05810-RBL-1
Jonathan I. Edelstein, Law Office of Alan Ellis, New York, New York, for Defendant-Appellant.
Teal Luthy Miller, Assistant United States Attorney (argued), and Jenny A. Durkan, United States Attorney, Office of the United States Attorney, Seattle, Washington, for Plaintiff-Appellee.
Before: Arthur L. Alarcón, Ronald Lee Gilman, [*] and Sandra S. Ikuta, Circuit Judges.
Vacating a sentence and remanding for resentencing, the panel held that any error in estimating the quantity of drugs attributable to a conspiracy to distribute oxycodone was harmless, but that the district court erred in imposing without an adequate factual basis an enhancement under U.S.S.G. § 3B1.4 for use of a person less than eighteen years of age.
ALARCÓN, Circuit Judge:
Billy Miranda Flores ("Flores") was convicted on one count of conspiracy to distribute oxycodone, three counts of distribution of oxycodone, one count of possession with intent to distribute methadone, and one count of possession of a firearm in furtherance of the methadone charge. The district court sentenced Flores to 240 months imprisonment— 180 months for the drug charges and 60 months for the firearm charge, imposed consecutively. Flores appeals his conviction of the gun charge and his sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). In this opinion, we consider only Flores's challenges to his sentence. In a concurrently filed memorandum disposition, we address Flores's separate challenges to his conviction. See United States v. Flores, __ Fed.App'x __ (9th Cir. 2013).
Flores argues that in imposing the sentence, the district court erred in estimating the quantity of drugs attributable to the conspiracy under the United States Sentencing Guidelines, and in applying a two-level sentencing enhancement under United States Sentencing Guidelines Manual § 3B1.4 for use of a person less than eighteen years of age in the conspiracy to distribute oxycodone. We conclude that any error in estimating the quantity of drugs attributable to the conspiracy was harmless, but that the district court erred in imposing the sentencing enhancement without an adequate factual basis. We accordingly vacate Flores's sentence and remand for resentencing.
This case arises out of a joint Federal Bureau of Investigation ("FBI") and Drug Enforcement Agency ("DEA") investigation into oxycodone and methadone trafficking on Puyallup tribal land in Washington State. Sometime before the summer of 2008,  law enforcement began investigating Flores and the smoke shop he managed, the Indian Smoke Shop (the "Shop"), which is located on the Puyallup reservation. The investigation employed physical and electronic surveillance, telephone toll records, trap and trace devices on target telephones, a pole camera installed outside the Shop, confidential informants, and controlled purchases of pills by undercover agents and cooperators. The investigation ended on October 20, 2009, when law enforcement officers arrested Flores and his codefendants: Bill C. Flores ("Flores Senior"), Flores's father; Tiny Bean-Flores ("Tiny Bean"), Flores's half-brother and an employee of the Shop; Danny Lee Sherwood ("Sherwood"), Flores's relative and an employee of the Shop; Timothy Morehead, a purchaser; and Shelbie Ingham ("Ingham"), Flores's girlfriend at the time.
The same day, law enforcement officers searched the Shop and Flores's house pursuant to search warrants and uncovered evidence of a drug conspiracy. Officers discovered cash and two bottles of methadone, and a loaded Smith and Wesson, Model 29, .44 Magnum revolver in an unlocked drawer approximately one foot from a safe where the officers recovered the bottles of methadone. The search of Flores's house yielded approximately seven empty prescription bottles—five of which were for oxycodone and all of which were prescribed to persons other than Flores.
Based on this evidence, Flores and his codefendants were indicted and charged in 34 counts. Flores was indicted with one count of conspiring to distribute oxycodone and methadone in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846, five counts of substantive distribution of oxycodone in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), one count of possession with intent to distribute methadone in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and one count of possession of a firearm in furtherance of the methadone count in violation of 18 U.S.C. §§ 2, 924(c)(1)(A). Tiny Bean, Ingham, Morehead, and Flores Senior entered into plea agreements. Flores and Sherwood proceeded to trial. A jury found Flores guilty of conspiring to distribute oxycodone, distributing oxycodone, possessing methadone with intent to distribute it, and possessing a gun in furtherance of the methadone charge.
In calculating Flores's base offense level, Flores's Presentence Report ("PSR") adopted a start date for the conspiracy of October 2007 and estimated that the conspiracy sold 1, 000 to 1, 500 80-milligram pills of oxycodone per day. PSR recommended a two-level upward adjustment for use of Shelbie Ingham, a person under eighteen years of age, in the conspiracy. Flores filed objections to the PSR in his sentencing memorandum. Specifically, he asserted that (1) the PSR's estimate of the quantity of drugs attributable to the conspiracy was too high, and (2) there was no evidence to support the enhancement for use of a minor.
At Flores's sentencing hearing, Sherwood testified that he joined the conspiracy in May 2009 and eventually sold up to 1, 000 pills daily for Flores. The district court concluded that a "conservative estimate" placed the start date of the conspiracy in December 2007, based on an unindicted coconspirator's trial testimony. The court noted that it had heard "a lot of testimony about the volume of the sales" and concluded that 500 80-milligram pills of oxycodone was a "conservative" estimate of the amount of pills that moved through the conspiracy daily between December 2007 and October 2009.
The district court explained that the marijuana equivalent for that amount of oxycodone was "well over" 30, 000 kilograms of marijuana, which is the smallest quantity that triggers the highest base offense level, 38, in the Drug Quantity Table. See U.S. Sentencing Guidelines Manual § 2D1.1 (Drug Quantity Table). The district court therefore concluded that Flores's base offense level was 38. The district court imposed a four-level enhancement for Flores's leadership role in the conspiracy and a two-level enhancement for use of a minor. However, the district court did not make an express finding as to Ingham's age at the time of her involvement in the conspiracy. The court imposed a two-level downward adjustment for Flores's acceptance of ...