United States v. Vallejo

In United States v. Vallejo, No. 23-40222 (5th Cir. Jan. 18, 2024) (unpublished), the Fifth Circuit affirmed the district court and rejected the defendant’s two arguments about his sentence for conspiracy to possess with intent to distribute five kilograms or more of a cocaine mixture.

Ruling 1: The district court did not err in holding Vallejo accountable under USSG § 2D1.1 for 0.9 kilograms of methamphetamine. Vallejo had pled guilty to a cocaine crime, so he argued that this methamphetamine was not part of his jointly undertaken criminal activity. See USSG § 1B1.3(a)(1)(B) (relevant conduct). The Fifth Circuit rejected that argument because “contrary to Vallejo’s contentions, … Vallejo was directly involved” in the methamphetamine conduct so it did not matter if it was part of the jointly undertaken activity.

In addition, the methamphetamine activity was “part of the same course of conduct” as the cocaine trafficking for two reasons. First, “both offenses involved common accomplices and similar modus operandi.” See USSG § 1B1.3, cmt. n.5(B)(i). Second, the two offenses were linked by their “similarity” and “temporal proximity.”

Ruling 2: The district court did not err in holding Vallejo accountable for his coconspirator’s possession of a gun under USSG § 2D1.1(b)(1). Vallejo could have reasonably foreseen that his coconspirator — an active-duty police officer at the time — would use his status to “provide cover” for their drug transportation, and Vallejo knew that his coconspirator was “on duty” at the time. Moreover, the Fifth Circuit has previously deemed firearms “tools of the trade” for drug traffickers, United States v. Aguilera-Zapata, 901 F.2d 1209, 125 (5th Cir. 1990), so the district court was permitted to “infer foreseeability of the coconspirator’s possession of his duty firearm during the offense.”