The five appellants—Eric Roberts, Ronald McGuire, Lowell Sargent, Christopher Ragle, and Philip Lala—and ten co-defendants engaged in a multistate marijuana-trafficking scheme that purchased marijuana in states where it was legal and distributed it throughout the country.
The jury found all five guilty of 28 U.S.C. § 846 drug conspiracy and 18 U.S.C. § 1956(h) money-laundering conspiracy. The jury also convicted Roberts of Continuing Criminal Enterprise (“CCE”) and an 18 U.S.C. § 924(c) count for possession of a firearm in furtherance of a drug-trafficking crime, but it acquitted McGuire on his § 924(c) count. All five appealed.
Rule 1006 and the “summary” spreadsheet
On plain-error review, the court held it was plain error under Federal Rule of Evidence 1006 for the district court to admit a spreadsheet that multiplied the number of delivery trips by a predetermined (and incorrect) average weight of drugs to determine the quantity of drugs moved by each individual. It reasoned that “[s]upplanting known drug quantities with an average value and then extrapolating that number—without any competent explanation regarding the calculation—manufactures evidence of unproven facts.”
Nevertheless, the court affirmed the drug-conspiracy convictions of McGuire and Sargent and remanded for resentencing under the default penalty in 21 U.S.C. § 841(b)(1)(D), wgucg dies bit carry a mandatory minimum based on drug quantity. The court also affirmed Lala’s conviction, rejecting his argument that the Government failed to produce sufficient evidence.
Drug Conspiracy Sentences
McGuire, Sargent, and Lala also challenged the factual findings underlying the Guideline ranges upon which their sentences were premised, arguing that the PSR for each defendant incorrectly calculated the quantity of drugs they were responsible for based on the summary spreadsheet.
The court vacated McGuire’s sentence and remanded for reconsideration of his attributable drug weight because the sentencing court relied solely on the PSR’s adoption of the summary spreadsheet without any reasoned explanation regarding the drugs attributable to him specifically.
As to Sargent, the court affirmed the sentencing court’s factual findings because his attorney conceded during sentencing that the quantity of drugs was “reasonably foreseeable.” This allowed the sentencing court to reasonably attribute the conspiracy’s drug quantities to him and waived any objection regarding particularized findings.
And the court affirmed Lala’s sentence because the sentencing court granted a variance based on factors unique to Lala—such as his criminal history, military service, safety valve, remorse—even noting that it would have imposed the same sentence even if the drug amounts were incorrect.
Continuing Criminal Enterprise
Roberts challenged the CCE count in the indictment, contending that the indictment was deficient and that the district court constructively amended the indictment. The panel found that any insufficiency in the indictment was harmless because, even though the government failed to include two of the predicate violations, Roberts did not explain how his defense would have been different had the government properly included the predicates. It also found no constructive amendment because the jury instructions did not broaden the charged crime, and Roberts did not demonstrate harm as to any variance in instructions. The court therefore affirmed Robert’s CCE conviction.
Sufficiency of Evidence for Money Laundering Convictions
Every appellant but Lala challenged his conviction for conspiracy to commit money laundering under § 1956(h). The jury considered the violation under two substantive offenses: domestic concealment money laundering and domestic promotional money laundering. The panel rejected concealment-theory laundering under § 1956(a)(1)(B)(i) because using cash rather than financial institutions did not have the fundamental purpose of concealment under Cuellar and circuit precedent.
But the record sufficed for domestic promotional laundering under § 1956(a)(1)(A)(i) because payment of drivers and reinvestment of profits “promoted” the trafficking scheme. Thus, the court affirmed the § 1956(h) convictions on a promotion basis only. The court also remanded to correct clerical errors in the judgments and PSRs that had improperly referenced international-laundering theories, requiring that the corrected records reflect only domestic promotional laundering.
Firearm Possession
Finally, the panel vacated Roberts’s § 924(c) sentence and remanded for resentencing because the district court erred in not requiring the jury to determine whether he possessed a short-barreled rifle. The government agreed.
Appeal from the Eastern District of Texas.
Opinion by Douglas, joined by King and Smith.