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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8682
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
OCTAVIO CARREON, and
ARMANDO MELENDEZ,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
(January 5, 1994)
Before VAN GRAAFEILAND*, SMITH, and WIENER, Circuit Judges
WIENER, Circuit Judge:
The central legal issue in this appeal is whether "relevant
conduct" as defined in з1B1.3(a)(1)(B) of the Sentencing Guidelines
includes conduct occurring before a criminal defendant joins a
conspiracy.
*Senior Circuit Judge of the Second Circuit, sitting by
designation.

Defendant-Appellants Armando Melendez and Octavio Carreon were
convicted of conspiring to import more than 100 kilograms of
marihuana in violation of 21 U.S.C. зз952, 960, and 963. Carreon
was also convicted of conspiring to possess with intent to
distribute more than 100 kilograms of marihuana in violation of 21
U.S.C. зз841 and 846, and of bribing a public official in violation
of 18 U.S.C. з201. Carreon questions whether he can be sentenced
under U.S.S.G. 1B1.3 (a)(1)(B) for conduct occurring before he
joined the conspiracy; Melendez disputes whether the district
court's failure to make explicit findings warrants remand for
resentencing. Melendez further challenges the district court's
failure to provide him with exculpatory or impeachment information
contained in the Presentence Investigation Reports ("PSRs") of
coconspirators turned government witnesses.
We hold today that the "reasonable foreseeability" requirement
contained in U.S.S.G. 1B1.3 (a)(1)(B) is prospective only, and
consequently cannot include conduct occurring before the defendant
joined the conspiracy. We also conclude that the district court's
failure to make explicit findings for either Melendez or Carreon
requires us to "second guess" the basis of the district court's
sentencing as to both of these defendants. Consequently, we must
reverse and remand both sentences for findings and resentencing.
Finally, we conclude that, in light of United States v. Jackson,
admittedly rendered after the instant trial and sentencing, the
district court's failure to review the Presentence Investigation
Reports ("PSRs") of government witnesses requires remand of
2

Melendez's conviction to determine whether those PSRs contained any
material exculpatory or impeachment information and, if they did
contain such information, whether failure to provide it was
harmless error.
I
FACTS AND PROCEEDINGS
A procession of coconspirators turned government witnesses1
testified that Armando Melendez and his father, Jesus "Chuy"
Melendez, were involved in an extensive marihuana trafficking
conspiracy between 1985 and 1992. These witnesses testified to
purchasing and transporting extensive quantities of marihuana
acquired from Armando Melendez and his family; through the years
this marihuana was transported in everything from vans to trucks to
planes to avoid detection. Indeed, several of these witnesses were
caught during this period while attempting to smuggle marihuana for
the Melendezes.2

In 1989 Chuy Melendez, the patriarch of the clan, was
murdered. By the end of 1989 a change had occurred in this drug
1Charles Aragon, William Delval, James Grice, Patrick
Trujeque, Lowell Ray Donaldson, Gerardo Soto-Quinonez, Jose
Guzman, and Lisa Wagner, all of whom were coconspirators,
testified against Melendez.
2In March or April 1988, Donaldson crashed while attempting
to fly an airplane containing 1300 pounds of marihuana into the
United States. This crash led to the arrest and conviction of
Donaldson. In November 1988, Wagner and another person were
arrested while attempting to enter El Paso from Mexico with 100
pounds of marihuana. In December 1988, Soto-Quinonez was
arrested in El Paso while attempting to transport 100 pounds of
marihuana. All of the witnesses testified that they were
smuggling marihuana for the Melendez organization when they were
arrested.
3

trafficking scheme. Defendant-Appellant Octavio Carreon joined
with Armando Melendez and others to bribe U.S. Border Patrol Agent
Patrick Maynes))who was a childhood friend of Carreon))to provide
Melendez and Carreon with information on law enforcement activity
in the area where they smuggled.3 Maynes was working undercover,
however, and spent the next year and one-half gathering evidence
during meetings with Melendez, Carreon, and other members of the
conspiracy.
The Melendez-Carreon drug smuggling business terminated in
April 1992. During April, Maynes met several times with various
members of the conspiracy and agreed to transport marihuana.
Maynes eventually transported 327 pounds of marihuana to
Albuquerque on April 12, where it was unloaded, moved to a
residence, and then seized by police. On April 16, government
agents moved in and seized corroborating evidence from the
residences of Melendez and Carreon.4

Both Carreon and Melendez were indicted, along with thirteen
others, in May 1992 for conspiring to import and conspiring to
3According to U.S. Border Patrol Agent Patrick Maynes,
Carreon was previously part of his own family's marihuana-
smuggling organization, which was on friendly terms with the
Melendezes. For example, Maynes testified that Carreon told him
that Chuy Melendez had previously helped the Carreons collect a
one-million dollar debt from a rival, the cocaine-smuggling
Sandoval family. Carreon and the government vigorously dispute
whether such activity indicates that Carreon conspired with
Melendez and his organization before the end of 1989.
4Agents seized from the residence of Melendez, inter alia, a
checkbook containing a check stub for 54,897,000 pesos made out
to one of the members of the conspiracy. From Carreon's
residence, agents seized a notepad that included the names of
several members of the conspiracy.
4

possess more than 100 kilograms of marihuana.5 The indictment
alleged that this conspiracy operated from the beginning of January
1985 to the beginning of May 1992. Carreon and Melendez were also
indicted for bribing a public official.6
In pretrial motions, Carreon filed for and was granted his
request to be severed and tried only with Melendez. Melendez filed
a pretrial motion to adopt all pretrial motions filed by his
codefendants, which included a motion by codefendant Christopher
Peter Bush requesting access to the PSRs of the government
witnesses. The district court denied Bush's motion. On the day of
trial, Melendez made his own separate motion requesting access to
the PSRs of all government witnesses. The district court dismissed
this request during trial as "being moot."
The jury found both Melendez and Carreon guilty of the
conspiracy to import more than 100 kilograms of marihuana, but
found only Carreon guilty of the conspiracy to possess. Carreon
was also the only one found guilty of the bribery charge.
In sentencing the defendants, the district court accepted the
drug quantity findings of 131,358 kilograms contained in the PSRs
of Melendez and Carreon. These findings attributed all marijuana
discussed at trial during the whole course of the conspiracySQfrom
1985 to 1992SQto both Melendez and to Carreon. The 131,358
kilograms established a base offense level of 40 for both
defendants; the district court adjusted this score upward two
521 U.S.C. з952 (importation); 21 U.S.C. з841 (possession).
618 U.S.C. з201.
5

points as to Melendez because he had a supervisory role in the
conspiracy, and downward two points as to Carreon because he was a
minor participant.7
Both defendants were sentenced within the ranges established
by the Sentencing Guidelines. Carreon was sentenced to 235 months
imprisonment on the conspiracy counts and a concurrent 180-month
term on the bribery count. Melendez was sentenced to 360 months
imprisonment on the conspiracy count. Both were sentenced to five
years of supervised release. In addition, Carreon received a
$25,000 fine while Melendez received a $100,000 one. Both
defendants timely appealed.
II

ANALYSIS
A. Relevant Conduct Under the Sentencing Guidelines
Under з2D1.1(a)(3) of the Sentencing Guidelines, the offense
level of a defendant convicted of a drug trafficking offense is
determined by the quantity of drugs involved in the offense. This
quantity includes both drugs with which the defendant was directly
involved, and drugs that can be attributed to the defendant in a
conspiracy as part of his "relevant conduct" under з1B1.3 (a)(1)(B)
of the Guidelines. Relevant conduct for conspiratorial activity is
defined in з1B1.3 (a)(1)(B) as "all reasonably foreseeable acts and
omissions of others in furtherance of jointly undertaken criminal
7Both defendants had a criminal history category of I.
6

activity."8 We made clear in United States v. Evbuomwan9 that for
conspiratorial conduct to be attributed under з1B1.3 (a)(1)(B),
that conduct must be both "reasonably foreseeable" to the defendant
and within the scope of the defendant's agreement.
Both Melendez and Carreon challenge the district court's
calculation of their sentence under з1B1.3, albeit on different
grounds. How the Guidelines are to be interpreted is a question of
law, which we review de novo.10 Factual findings under the
Guidelines are reviewed only for clear error.11
1. Requirement of Findings
Melendez argues that the district court erred in failing to
make explicit findings as to how it calculated the drug quantities
attributed to him under з1B1.3. Specifically, Melendez contends
that the district court's failure to find 1) that the drugs
attributed to him in the PSR were within the scope of and in
furtherance of a conspiracy that he joined, and 2) that all of
the marihuana quantities included in the PSR were reasonably
foreseeable by him, warrants remand for findings and resentencing.
In the instant case, the district court simply adopted the PSR
report, including the quantity attributed from the conspiracy, as
"well-justified." The government contends that this adoption
8United States Sentencing Commission, Guidelines Manual,
з1B1.3(a)(1)(B) (Nov. 1993) (emphasis added).
9992 F.2d 70, 72 (5th Cir. 1993).
10E.g., United States v. Lara-Velasquez, 919 F.2d 946, 953
(5th Cir. 1990).
11Id.
7

constitutes an implicit finding sufficient to establish both that
Melendez was a member of the conspiracy, and that the quantities at
issue were reasonably foreseeable.
In United States v. Puma12 we remanded for resentencing because
the district court had failed to make an express finding that the
conspiratorial activity at issue was reasonably foreseeable as
required by former з2D1.4 of the GuidelinesSQthe same type of
finding as required here by з1B1.3 (a)(1)(B). Moreover, Rule 32 of
the Federal Rules of Criminal Procedure mandates that the
sentencing court make findings regarding any controverted facts in
the PSR, or state that those facts will not be taken into account
in sentencing.13 We have nevertheless rejected the proposition that
a court must make a "catechismic regurgitation of each fact
determined"; instead, we have allowed the district court to make
implicit findings by adopting the PSR.14 This adoption will operate
to satisfy the mandates of Rule 32 when the findings in the PSR are
so clear that the reviewing court is not left to "second-guess" the
12937 F.2d 151, 160 (5th Cir. 1991), cert. denied, 112 S.Ct.
1165 (1992). But see United States v. Lghodaro, 967 F.2d 1028,
1030 (5th Cir. 1992) (concluding that "reasonable foreseeability"
finding, although not express, was clearly part of district
court's conclusion that the defendant was involved in joint
activity).
13FED. R. CRIM. P. 32(C)(3)(D).
14United States v. Sherbak, 950 F.2d 1095, 1099 (5th Cir.
1992), see also Lghodaro, 967 F.2d at 1030 (accepting an implied
finding as to "reasonable foreseeability" when that finding was
clearly part of the district court's conclusion that the
defendant was involved in joint activity).
8

basis for the sentencing decision.15
Here, the PSR simply accepts virtually all of the drug
quantities discussed in the testimony at trial, and attributes
those quantities to Melendez. In response to Melendez' voluminous
objections to those quantitiesSQincluding specific objections to
the reasonable foreseeability of many of the transactions and
events involving those quantitiesSQthe probation officer preparing
the report stated that he was submitting the matter "for the
Court's consideration."
The problem here is that we are unable to determine how the
district court resolved these issues. For example, the
government's theory supporting the foreseeability findingSQthat
Melendez was the "key man" in the smuggling organization, and hence
was aware of all the transactions engaged in by that
organizationSQwas at least partially rejected by the court at the
sentencing hearing when it rejected the PSR finding that Melendez
was the organizer or leader of the organization.16 In rejecting
this finding, the court stated:
As to the role in the offense, I think it's somewhat
exaggerated to characterize [Melendez] as the mastermind
or as the organizer or leader. He was a key member, of
course, and occupied some supervisory role, but I think
a two-level adjustment rather than four would be more
appropriate under the evidence I heard in the case.
15United States v. Hooten, 942 F.2d 878, 881 (5th Cir.
1991).
16The PSR recommended a four-level increase based on this
finding. Section 3B1.1(a) of the Guidelines authorizes this
increase when the defendant is the "organizer or leader of a
criminal activity that involved five or more participants."
U.S.S.G. 3B1.1(a).
9

Although this statement appears to resolve the "jointly agreed to"
issue by concluding that Melendez was a member of the conspiracy in
some capacity, it appears to cloud the foreseeability issue under
the government's theory of the case. We thus are left to second
guess the basis for the district court's calculation here and must
consequently remand for findings.17
2. Reasonable Foreseeability and Prior Conduct
Carreon contends that he cannot be sentenced under з1B1.3
(a)(1)(B) for conduct occurring before he joined the conspiracy.
Simply put, Carreon insists that the requirement of "reasonable
foreseeability" contained in з1B1.3 (a)(1)(B) cannot be backward
looking to include prior conduct. Before we address this
contention, we pause to note that Carreon's sentence suffers from
the deficiency that infected the sentencing of Melendez. The
district court followed the same approach as it had in sentencing
Melendez by concluding that the drug quantities listed in the PSR
of CarreonSQwhich are virtually identical to the ones listed in the
PSR of MelendezSQwere "well justified."
17In remanding for findings, we express no opinion whether
the quantity calculated in the PSR may ultimately prove correct.
We do require, though, that the district court find 1) when
Melendez joined the conspiracy or conspiracies, 2) what drug
quantities were within the scope of Melendez's conspiratorial
agreement or agreements, and 3) of these drug quantities, which
were reasonably foreseeable to Melendez. By remanding for these
findings, we protect the integrity of the fact finding process
and maintain the proper delineation of roles between the
appellate and the district courts. Such findings, of course,
remain subject to review only for clear error. E.g., Lara-
Velasquez, 919 F.2d at 953.
10

On appeal, Carreon attempts to limit the scope of his
agreement (and hence his sentencing accountability) by contending
that the instant case contains at least two conspiracies: the
bribery-importation conspiracy involving Maynes, and an earlier
importation conspiracy centered around Melendez and the government
witness, Charles Aragon. Carreon concedes he was a member of the
Maynes conspiracy but argues that he had no involvement in the
earlier Melendez-Aragon conspiracy. The government counters that
there was only one conspiracy hereSQwith Melendez as the "key man"
tying all the disparate transactions and actors togetherSQand that,
consequently, the scope of Carreon's agreement could extend to all
activity engaged in by that conspiracy. The simple adoption of
Carreon's PSR by the district court unfortunately does not disclose
what the court found regarding this issue.
Carreon and the government also hotly contest whether Carreon
entered the conspiracy (or conspiracies) in 1987 or in 1989, but,
given the absence of findings, we cannot discern what the district
court found regarding this issue either. The parties contest this
issue for different reasons though: as noted above, Carreon
contends that relevant conduct as defined in з1B1.3 (a)(1)(B)
cannot include conduct occurring before he joined the conspiracy.
The drugs attributed to Carreon by the PSR obviously include
quantities arising out of transactions that occurred before he
joined the conspiracy, as they include transactions that occurred
from 1985 to 1992. Accordingly, Carreon's sentence is presently
premised on the notion that relevant conduct can include conduct
11

occurring before he joined any conspiracy. As such, the "relevant
conduct-prior conduct" issue is a necessary part of the sentence
challenged and is thus properly reviewable.18 As this issue is res
nova in this circuit,19 we begin by turning to the applicable
provisions in the Sentencing Guidelines.
a. The Sentencing Guidelines
The appropriate starting point is the plain language of the
Guidelines themselves.20 Both the Chairman and the General Counsel
of the Sentencing Commission (the "Commission") have referred to
the relevant conduct section as the "cornerstone" of the
Guidelines.21 Including relevant conduct in sentencing allows the
defendant to be sentenced based, at least in part, on the
seriousness of his actual behavior.22 Tying the sentence to the
seriousness of the actual offense in turn helps effectuate the
18Even were we to remand solely for findings, the district
court would have to face this issue in recalculating Carreon's
sentence, as it is likely that the district court's express
finding regarding the scope of the conspiratorial agreement would
comport with the finding implicit in its present resolution of
Carreon's sentence. Presumably, the district court would also
continue to believeSQabsent guidance from this courtSQthat
Carreon can be held accountable for prior conduct. Under these
circumstances, judicial economy warrants disposing of this issue
now rather than risk a needless appeal and remand.
19The parties concede that no Fifth Circuit case has decided
this issue.
20Cf., Stinson v. United States, 123 L.Ed.2d 598, 606-08
(1993) (the Guidelines and the Commission's Policy Statements and
Commentary are generally binding on the courts).
21See, William W. Wilkins & John R. Steer, Relevant Conduct:
The Cornerstone of the Sentencing Guidelines, 41 S.C.L. REV. 495,
496 (1990).
22Id. at 497.
12

congressional policy of proportionalitySQthat the "system impose
appropriately different sentences for criminal conduct of differing
severity."23
Relevant conduct under з1B1.3 includes acts engaged in by
coconspiratorsSQa particularly important provision in drug
conspiracy prosecutions given that the sentences in such
prosecutions are determined based on drug quantities attributable
to the defendant,24 and that in many instances the defendant will
not be directly involved in many of the transactions giving rise to
those quantities. Nonetheless, the Guidelines have retained their
emphasis on sentencing the defendant as an individual: The
Commentary to з1B1.3 states that "the focus is on the specific acts
and omissions for which the defendant is to be held accountable in
determining the applicable guideline range, rather than on whether
the defendant is criminally liable for an offense as a principal,
accomplice, or conspirator."25
Determining
the
appropriate
degree
of
sentencing
accountability for conspiratorial activitySQwhile still serving the
need for proportionality in sentencing and for sentencing the
defendant as an individualSQhas proven difficult for the
Commission. A review of the changes effected by the Commission
sheds some light on the Commission's intent relative to these
issues.
23U.S.S.G. Ch. 1, Pt. A (3).
24U.S.S.G. з2D1.1(a)(3).
25U.S.S.G. з1B1.3, comment. (n.1).
13

The original Guidelines contained only a cryptic reference to
accountability for conspiratorial activity.26 Perhaps recognizing
the weaknesses of this approach, the Commission promulgated an
emergency amendment that became effective January 15, 1988.27 This
amendment referred to conspiratorial accountability as conduct "for
which the defendant would be otherwise accountable," and defined
such conduct to include "conduct in furtherance of the conspiracy
that was known to or was reasonably foreseeable by the defendant."28

In an amendment effective November 1, 1989, the Commission
dropped the "known to" language, thus including conspiratorial
conduct only if that conduct was "reasonably foreseeable" to the
defendant.29 This amendment also attempted to distinguish the
individual from the conspiracy as a whole by stating:
Because a count may be broadly worded and include the
conduct of many participants over a substantial period of
time, the scope of the jointly-undertaken criminal
activity and hence relevant conduct, is not necessarily
the same for every participant. Where it is established
that the conduct was neither within the scope of the
defendant's agreement, nor was reasonably foreseeable in
26The original Guidelines defined "relevant conduct" as "all
conduct, circumstances, and injuries relevant to the offense of
conviction. . . " U.S.S.G. з1B1.3 (Nov. 1987). The only
apparent reference to accountability for conspiratorial conduct
was the statement that such conduct shall include all conduct
that is part of "a common scheme or plan." Id.
27See, U.S.S.G. App. C (amendment 3). This emergency
amendment was upheld as statutorily authorized in United States
v. Frederick, 897 F.2d 490 (10th Cir.), cert. denied, 498 U.S.
863 (1990).
28U.S.S.G. App. C, amend. 3.
29U.S.S.G. App. C, amend. 78.
14

connection with the criminal activity the defendant
agreed to jointly undertake, such conduct is not included
in establishing the defendant's offense level under this
guideline.30
In its most recent amendment, which became effective November
1, 1992 (the 1992 Amendment), the Commission once again attempted
to clarify and to delineate the extent of liability for
conspiratorial activity. The Commission first moved the
"reasonable foreseeability" element into the text of the
guideline.31 Next, the Commission rewrote its commentary to
emphasize that the "scope of the agreement" and "reasonable
foreseeability" are independent and necessary elements. The second
note to the new Commentary now provides in pertinent part:
In the case of jointly undertaken criminal activity,
subsection (a)(1)(B) provides that a defendant is
accountable for the conduct (acts and omissions) of
others that was both:
(i) in furtherance of the jointly undertaken
criminal activity; and
(ii) reasonably foreseeable in connection with that
criminal activity.32
Finally, the Commission emphatically rejected the notion that
criminal liability and sentencing accountability are coextensive.
The first note of the Commission's new Commentary now states:
The principles and limits of sentencing accountability
under this guideline are not always the same as the
principles and limits of criminal liability. Under
[з1B1.3] the focus is on the specific acts and omissions
for which the defendant is to be held accountable in
30Id. The Commission stated that the purpose of this
amendment was to clarify the definition of conduct for which the
defendant is "otherwise accountable." Id.
31U.S.S.G. App. C, amend. 439.
32Id. (emphasis added).
15

determining the applicable guideline range, rather than
on whether the defendant is criminally liable for an
offense as a principal, accomplice, or conspirator.33
In sum, changes wrought by the Commission in з1B1.3 indicate
that the Commission has developed "reasonable foreseeability" as a
means to limit the sentencing accountability of a defendant. The
Commission has apparently developed this limit to ensure that the
congressional goal of proportionality is servedSQthat the sentence
of the defendant is indeed tied to the "specific acts and omissions
for which the defendant is to be held accountable."34
b. Circuit Law and "Reasonable Foreseeability"
Like the Commission, those circuits which have addressed this
issue have struggled to ascertain the appropriate limits of
sentencing
accountability
for
conspiratorial
activity.
Specifically, other circuits have disagreed on whether "reasonable
foreseeability" under з1B1.3 may include conduct occurring before
a defendant joins a conspiracy. In two opinions predating the 1992
Amendments, United States v. Miranda-Ortiz35 by the Second Circuit
33Id.
34Id. The Chairman and the General Counsel of the
Commission make this point in their article on relevant conduct.
Wilkins & Steer, supra note 21 at 511. The First Circuit, in
United States v. O'Campo, 973 F.2d 1015, 1026 (1st. Cir. 1992),
also concluded that "reasonable foreseeability" has been
developed as the "central concept" to limit a defendant's
sentencing accountability for relevant conduct. Id. at 1023-26.
We note that Judge Stephen Breyer, a member of the first
Commission, was a member of the O'Campo panel.
35926 F.2d 172, 178 (2d Cir.), cert. denied, 112 S.Ct. 347
(1991).
16

and United States v. Edwards36 by the Seventh, both courts concluded
that "reasonable foreseeability" may include prior conduct. In
contrast, in two opinions following37 that amendment, United States
v. O'Campo38 by the First Circuit and United States v. Petty39 by the
Ninth, those courts flatly rejected the proposition that reasonable
foreseeability can be backward-looking to encompass prior conduct.
In Miranda-Ortiz the Second Circuit simply assumed without
discussion that prior conduct could be reasonably foreseeable under
the Guidelines, although the court remanded that case for
resentencing to determine whether the defendant actually knew, or
should have known, of the drug quantities involved in the
conspiracy before he joined.40 In Edwards the Seventh Circuit
concluded that past conduct can be "reasonably foreseeable" by
analogizing to cases in which defendants were held liable for large
quantities of drugs based on their degree of participation in the
conspiracy.41 These cases, however, either did not address the
prior conduct issue or involved drug transactions that occurred
36945 F.2d 1387 (7th Cir. 1991), cert. denied, 112 S.Ct.
1590 (1992).
37Although O'Campo was decided before the 1992 Amendment
became effective, the O'Campo court referred to this amendment to
inform its analysis and ultimate disposition of the case.
O'Campo, 973 F.2d at 1025 & n.10.
38973 F.2d 1015, 1026 (1st Cir. 1992).
39982 F.2d 1374, 1377 (9th Cir. 1993).
40Miranda-Ortiz, 926 F.2d at 178.
41Edwards, 945 F.2d at 1394-96.
17

after the defendant joined the conspiracy.42 The Edwards court
justified these analogies by postulating that reasonable
foreseeability incorporated the limiting principle contained in
substantive conspiracy law, namely, that the scope of liability is
determined by the scope of the agreement.43
The approach used by the Seventh Circuit in Edwards is
troubling. That approachSQwhich treats the scope of the agreement
as defining the extent of what is reasonably foreseeableSQ
contradicts our requirement in Evbuomwan (and the Guidelines
requirement in the 1992 Amendment) that the sentencing court must
find both that the defendant agreed to the joint criminal activity,
and that the agreed-to activity must also be reasonably
foreseeable. The Edwards approach is also inconsistent with the
clear statement in the Guidelines' Commentary that sentencing
accountability and criminal liability are not necessarily
coextensive.44
In contrast to the Edwards approach, the First Circuit in
O'Campo treated reasonable foreseeability as a separate element and
then concluded that it would be oxymoronic to conclude that "prior
42For example, the Edwards court discussed United States v.
Townsend, 924 F.2d 1385 (7th Cir. 1991), which addressed the
scope of a conspiracy under the substantive criminal law, and
United States v. Farrell, 893 F.2d 690 (5th Cir. 1990), which
addressed sentencing accountability for planned future purchases
of drugs. Edwards, 945 F.2d at 1394-97.
43Edwards, 945 F.2d at 1396.
44U.S.S.G. з1B1.3, comment. (n.1). As noted, the Edwards
decision was rendered before this commentary was added to the
Guidelines.
18

conduct" could be "reasonably foreseeable."45 The Ninth Circuit in
Petty agreed with the O'Campo court's rejection of Edwards by
observing first that the concept of relevant conduct contained in
the Guidelines repudiates "the general[ly] harsh law of conspiracy
that a conspirator is 'bound by all that has gone on before in the
conspiracy,'"46 and second that courts do not have a warrant to turn
the notion of foreseeability 180 degrees to apply it to prior
conduct.47
c. Resolution
We conclude that the approach used by the First and Ninth
Circuits in O'Campo and Petty is the better reasoned one, as it
more closely follows the dictates of the Guidelines.48 Applying
foreseeability only prospectively comports with the plain meaning
of the term "foreseeable."49 It also effects the individualized
sentencing polices underlying the Guidelines "relevant conduct"
45O'Campo, 973 F.2d at 1026.
46Petty, 982 F.2d at 1376 (quoting United States v.
DiCesare, 765 F.2d 890, 900 (9th Cir. 1985)).
47Id.
48We are, of course, bound by the Guidelines absent some
inconsistency with statutory authority. This principle also
applies to the commentary contained in the Guidelines: Such
commentary is binding unless it is plainly erroneous or
inconsistent with the applicable guideline. Stinson, 123 L.Ed.2d
at 608.
49See, e.g., BLACK'S LAW DICTIONARY 649 (6th Ed. 1990) (defining
foreseeability as "the ability to see or know in advance; e.g.
the reasonable anticipation that harm or injury is a likely
result from certain acts or omissions."); WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 890 (1986) (defining foreseeable as "being
such as may reasonably be anticipated").
19

provision: that sentencing is focused on "the specific acts and
omissions for which the defendant is to be held accountable."50
Such an approach ensures that the congressional policy of
proportionality is served, as the sentence of the defendant is tied
to the severity of the defendant's conduct.51 Finally, the approach
used in O'Campo and Petty, unlike the one in Edwards, is consistent
with the requirement we imposed in Evbuomwan and the Commission
imposed in their 1992 AmendmentsSQthat the "scope of the agreement"
and "reasonable foreseeability" are independent and necessary
elements of relevant conduct under з1B1.3 (a)(1)(B). We thus hold
today that "relevant conduct" as defined in з1B1.3 (a)(1)(B) is
prospective only, and consequently cannot include conduct occurring
before a defendant joins a conspiracy.
Without attempting to pretermit the district court's findings
on remand, we observe that the instant case aptly illustrates the
dangers of failing to limit temporally the sentencing
accountability of a defendant. Both Carreon and Melendez were held
50U.S.S.G. з1B1.3, comment. (n.1). The illustrations
provided in the comments to з1B1.3 indicate that members of drug
conspiracies are to be sentenced in an individualized fashion,
instead of on the basis of their participation in broad-ranging
conspiracies. For example, illustration eight contains the
following hypothetical:
Defendant R recruits Defendant S to distribute 500
grams of cocaine. Defendant S knows that defendant R
is the prime figure in a conspiracy involved in
importing much larger quantities of cocaine. As long
as Defendant S's agreement and conduct is limited to
the distribution of the 500 grams, Defendant S is
accountable only for that 500 gram amount. . . , rather
than the much larger quantity imported by Defendant R.
U.S.S.G. з1B1.3, comment. (n.2(c)(8)).
51See, U.S.S.G. Ch.1, Pt. A (3).
20

responsible for the same quantity of drugsSQquantities that arose
from transactions occurring from 1985 to 1992. Yet according to
the government's own admission, CarreonSQunlike MelendezSQwas a late
comer to the Melendez drug smuggling organization.52 Basing
Carreon's sentence on the same quantity of drugs as Melendez' would
thus countermand the congressional goal of proportionality in
sentencingSQan important goal that, as the Sentencing Commission
instructs, is met by focusing the sentencing of a defendant on his
individual acts and omissions, not his criminal liability under the
substantive law of conspiracy.53
As Carreon's presently constituted sentence is predicated on
attribution of conduct occurring before he joined the Melendez
conspiracy, we are constrained to remand for resentencing. We
require that in resentencing Carreon the district court determine:
1) when Carreon joined the conspiracy (or conspiracies), 2) what
drug quantities were within the scope of Carreon's conspiratorial
52As noted earlier, the government and Carreon vigorously
contest whether Carreon joined the conspiracy in 1987 or 1989.
As we must remand for resentencing, we do not attempt to resolve
this issue on appeal.
53We note that the district court wisely attempted to
correct for the disparity in conduct between Melendez and Carreon
by adjusting their base offense levels for their roles in the
conspiracy: Melendez' base offense level was increased by two
points because he played a supervisory role and Carreon's was
decreased by two points because he was a minor participant.
Nonetheless the starting point for the sentencing of CarreonSQthe
"base offense level"SQwas premised on the faulty notion that
relevant conduct could include conduct occurring before Carreon
joined the Melendez organization.
21

agreement (or agreements),54 and 3) of these drug quantities, which
were reasonably foreseeableSQprospectively onlySQby Carreon. We
observe that evidence of prior conduct is not wholly irrelevant to
these inquiries; rather, any knowledge that Carreon may have had
regarding prior conduct will provide useful evidence of what
Carreon agreed to and what he reasonably foresaw when he joined the
conspiracy. The O'Campo court accurately explains when, and to
what extent, such evidence of prior conduct is still relevant:
We have emphasized that proving a "defendant knew what
was going on" is not sufficient to establish co-
conspirator criminal liability . . . . We similarly
believe that the base offense level at sentencing cannot
be based on mere knowledge of historic facts . . .
[T]he relevant inquiry is to determine the foreseeable
object to which the individual conspirator agreed. The
past performance of the conspiracy, known to the late-
joining co-conspirator, may be relevant to a careful
analysis directed to the understanding such a co-
conspirator has of the anticipated quantity of the drug
distributions the conspiracy intends to undertake after
he joins . . . .
[T]he base offense level of a co-conspirator at
sentencing should reflect only the quantity of drugs he
reasonably foresees it is the object of the conspiracy to
distribute after he joins the conspiracy. In making the
judgment what a co-conspirator can "reasonably foresee,"
the earlier transactions of the conspiracy before he
joins but of which he is aware will be useful evidence.
However, a new entrant cannot have his base offense level
enhanced at sentencing for drug distributions made prior
to his entrance merely because he knew they took place.
Thus for example, if a defendant joins a conspiracy he
knew
previously
engaged
in
distribution
of
extraordinarily amounts of drugs, his knowledge of those
prior acts will inform the judgment about what he
reasonably could have foreseen the conspiracy would
entail in the future. He might, for example, then be
54As part of this finding, the district court will need to
resolve whether Carreon entered one grand conspiracy (as
contended by the government) or a separate, smaller one centered
around the attempted bribery of Maynes (as contended by Carreon).
22

found reasonably to have foreseen future distributions of
similarly large quantities.55

The O'Campo court's explanation adequately describes our holding
today.
Finally, in order to delineate properly the extent of our
holding today, we address a valid concern raised by the government.
Perhaps because of the 1992 Amendments to the Guidelines, the
government is no longer advocating the inclusion of pre-joinder
occurrences as relevant conduct as it was under Edwards.
Nonetheless, the government remains concerned that, through
temporal fortuity or manipulation, a defendant may avoid sentencing
accountability for his conduct. The government poses the following
hypothetical:
Several persons agree to import a large quantity of drugs
into the United States. After the drugs have been
imported and distributed, the defendantSQwith full
knowledge
of
the
illegal
objectives
of
the
conspiracySQagrees to join the conspiracy to collect the
money due for those drugs. The conspiracy endsSQeither
because the members were caught or because they decided
to disbandSQafter completion of this transaction.
The government posits that a "bright line" prospective-only rule
for relevant conduct would allow this hypothetical defendant to
escape sentencing accountability for his conduct: all importation
and distribution predated his joinder, and no drug quantities,
post-joinder, are attributable to the defendant's collection
function.
Although the government has indeed raised a valid concern, we
observe that the government would be reading our holding today too
55973 F.2d at 1025-26 (footnote omitted).
23

broadly if it believes that we have foreclosed all sentencing
accountability for its hypothetical defendant under з1B1.3.
Section 1B1.3 includes two primary grounds on which to hold a
defendant accountable for conduct by others: subsection (a)(1)(B)
for jointly undertaken criminal activity,56 and subsection (a)(1)(A)
for "all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant."57 Subsection (a)(1)(B) includes a "reasonable
foreseeability" limitation; subsection (a)(1)(A) does not.58
Furthermore, subsections (a)(1)(A) and (a)(1)(B) are separate and
independent grounds for imposing sentencing accountability.59
Consequently, nothing we hold today regarding the "reasonable
foreseeability" limit to subsection (a)(1)(B) would foreclose the
government from holding its hypothetical defendant accountable
under subsection (a)(1)(A). Clearly, such a defendant has "aided
or abetted" a drug smuggling transaction when his agreed-to
function is so causally and functionally intertwined with the
transaction that it could not be completed absent his
participation.60 As such, that hypothetical defendant could be held
56U.S.S.G. з1B1.3 (a)(1)(B).
57U.S.S.G. з1B1.3(a)(1)(A).
58U.S.S.G. з1B1.3, comment. (n.2).
59U.S.S.G. з1B1.3, comment. (n.(a)(1)).
60The commentary to з1B1.3 provides two pertinent examples
of sentencing accountability for aiding and abetting under
subsection (a)(1)(A). In the first example the Commission
posits:
Defendant A is one of ten persons hired by Defendant B
24

accountable for that transaction under subsection (a)(1)(A).
B. Review of PSRs of Coconspirators-Witnesses
Most of the government witnesses testifying against Melendez
were coconspirators in the Melendez organization who had themselves
been subjected to various criminal charges. Melendez requested
access to the PSRs of these witnesses in order to acquire any
exculpatory or impeachment information under Brady and Giglio.
Working from the established premise that information contained in
a PSR is confidential, the district court denied this request.
Subsequent to the trial in the instant case, we decided United
to off-load a ship containing marihuana. The off-
loading of the ship is interrupted by law enforcement
officers and one ton of marihuana is seized (the amount
on the ship as well as the amount off-loaded).
Defendant A and the other off-loaders are arrested and
convicted of importation of marihuana. Regardless of
the number of bales he personally unloaded, Defendant A
is accountable for the entire one-ton quantity of
marihuana. Defendant A aided and abetted the off-
loading of the entire shipment by directly
participating in the off-loading of that shipment
(i.e., the specific objective of the criminal activity
he joined was the off-loading of the entire shipment).
Therefore, he is accountable for the entire shipment
under subsection (a)(1)(A) without regard to the issue
of reasonable foreseeability.
U.S.S.G. з1B1.3, comment. (n.(a)(1)). The Commission's next
example indicates that temporal sequence does not control
sentencing accountability for aiding and abetting:
Defendant C is the getaway driver in an armed bank
robbery in which $15,000 is taken. . . . Defendant C
is accountable for the money taken under subsection
(a)(1)(A) because he aided and abetted the act of
taking the money (the taking of the money was the
specific objective of the offense he joined).
U.S.S.G. з1B1.3, comment. (n(a)(2)). See generally, e.g.,
United States v. Stone, 960 F.2d 426, 433 (5th Cir. 1992)
(observing that a defendant "aid and abets" a crime within the
meaning of 18 U.S.C. з2 when the defendant 1) associates with
the criminal venture, 2) participates in the venture, and 3)
seeks by action to make the venture succeed).
25

States v. Jackson,61 in which we reconciled the need to protect the
confidentiality of PSRs with the right of the defendant to have
access to exculpatory and impeachment evidence under Brady and
Giglio. We accomplished this reconciliation in Jackson by holding
that the trial court should examine the PSR in camera and release
any exculpatory or impeachment evidence to the defendant, while
protecting the confidentiality of the rest of the PSR.62
Particularly in light of the absence of the coconspirators'
PSRs from the record on appeal, the government concedes that we
must remand here in light of Jackson. But the government contends
that we must remand for "harmless error" analysis by the district
court. Melendez, not surprisingly, argues that the district
court's failure to anticipate Jackson warrants not just vacatur of
his sentence, but also reversal of conviction and remand for a new
trial. We agree with the government.
The remand-and-review approach is consistent with Rule 52's
mandate that "[a]ny error[s] . . . not affect[ing] substantial
rights shall be disregarded"63 and our requirement that the
defendant must show that the requested evidence was "material"
before he can claim any infringement of a substantial right under
Brady or Giglio.64 In short, until the district court inspects the
61978 F.2d 903, 908-09 (5th Cir. 1992), cert. denied, 113
S.Ct. 2429 (1993).
62Id. at 909.
63FED. R. CRIM. P. 52(a).
64E.g., United States v. Merida, 765 F.2d 1205, 1216 (5th
Cir. 1985) (placing burden on defendant to show that the
26

PSRs and compares them against the information Melendez had at
trial, it is impossible to determine whether Melendez was in fact
denied access to material Brady or Giglio information, and if so
whether he suffered prejudice as a result of this denial.
Consequently, we remand to the district court to 1) conduct
an in camera inspection and make appropriate findings as to whether
the PSRs of the government witnesses contained any material Brady
or Giglio information, and 2) compare those findings against the
evidence Melendez had at trial to determine whether the failure to
provide this information was harmless error. So that these
findings and conclusions are reviewable on appeal, we require that
the district court ensure that these PSRs are made a part of the
record, albeit under seal if need be.
C. Other Issues
The defendants have raised a host of other issues of varying
merit. We briefly address them in turn.
1. Sufficiency of the Evidence as to Carreon
Carreon contends that there was insufficient evidence to
support his convictions on the conspiracy to possess and to import
marihuana because the evidence at trial indicated that there were
multiple conspiracies, instead of one overall conspiracy on which
he was indicted. According to Carreon, the instant case involves
at least two conspiracies: the bribery-importation conspiracy
involving Maynes (of which Carreon concedes he was a member), and
an earlier importation conspiracy centered around Melendez and the
requested Brady information was material).
27

government witness, Charles Aragon. Even if we were to assume
arguendo that this case involves multiple conspiracies, Carreon's
argument fails for lack of prejudice to a substantial right.65
We have long held that "when the indictment alleges . . . a
single conspiracy, but the 'government proves multiple conspiracies
and a defendant's involvement in at least one of them, then there
is no variance affecting that defendant's substantial rights.'"66
This holding is subject to the caveat that substantial rights are
affected when the defendant is subjected to transference of guilt,
that is, the danger that the defendant may be convicted because of
his association with, or conspiracy for unrelated purposes with,
codefendants who were members of the charged conspiracy.67
Here, the evidence adequately demonstrates that Carreon joined
with Melendez to engage in activity that was part of the charged
conductSQon more than one occasion Carreon was taped discussing the
importation and distribution of marihuana with Maynes. This
discussion eventually led to the actual importation of more than
the minimum charged quantity of marihuana. Carreon's argument is
65The government correctly asserts that whether the evidence
establishes a single or multiple conspiracy is a question of fact
for the jury. E.g., United States v. Ellender, 947 F.2d 748, 759
(5th Cir. 1991). The problem here is that, as Carreon was
charged and convicted of conspiracy to distribute only 100 or
more kilograms of marihuana, it is impossible to tell whether the
jury found that Carreon was a member of one grand conspiracy or
of a separate, smaller conspiracy involving the attempted bribing
of Maynes.
66Jackson, 978 F.2d at 911 (quoting United States v.
Richardson, 833 F.2d 1147, 1155 (5th Cir. 1987)).
67United States v. Hernandez, 962 F.2d 1152, 1159 (5th Cir.
1992).
28

thus reduced to asserting that he did a little bribing, a little
smuggling, and a little distributing, just not as much as Melendez
and the others. Such an argument negates any claim of an
infringement on a substantial right.
2. Bill of Particulars and Prejudice
Carreon contends that the district court erred in denying his
motion for a bill of particulars, and that this error caused him
substantial prejudice. According to Carreon's theory, the bill of
particulars would have put him on notice that the majority of the
government's evidence concerned a conspiracy separate from the one
he joined. Carreon complains that the evidence from this other
conspiracy was improperly used against him to attribute "guilt by
association." In sum, Carreon insists that, had he had the bill of
particulars, he would have been able to sever his trial from
Melendez.
We conclude that Carreon's argument fails for lack of
demonstrated prejudice. Even if we were to assume that the
district court's denial of the bill of particulars was an abuse of
discretionSQa highly doubtful assumption68SQCarreon has failed to
68Only when a district court clearly abused its discretion,
will a judgment of conviction be reversed for the denial of a
Bill of Particulars. E.g., United States v. Vasquez, 867 F.2d
872, 874 (5th Cir. 1989). In the instant case, the government
provided Carreon with substantial discovery materials revealing
the government's theory of the case, and the prosecutor further
explained this theory during pretrial hearings for severance.
Even Carreon's counsel had to admit that he had received "a lot
of discovery." Under these circumstances, it is unlikely that
the district court clearly abused its discretion in denying
Carreon's request for more information through a bill of
particulars.
29

show that his rights were substantially prejudiced by the ultimate
harm flowing from denial, namely, the failure to sever. To
establish harm from failure to sever, Carreon would have had to
show that the joint trial "compromise[d] a specific right [of his],
or prevente[d] the jury from making a reliable judgment about guilt
or innocence."69 In contrast, Carreon claims no specific harm from
the failure to sever other than to assertSQbaldly and without
supporting factsSQthat such failure violated his right to a fair
trial under the Due Process Clause. But, as noted above, this
assertion is negated by the evidence at trial incriminating
CarreonSQwhich was direct, straightforward, and substantial.
3. Plain Error and Severance
In pretrial motions, Carreon requested and received severance
of his and Melendez's trial from that of the other coconspirators.
Carreon admitted that he was properly joined with Melendez because
of their purported participation in a scheme to bribe Maynes. On
appeal, Carreon now argues that he should also have been severed
from Melendez.
Because Carreon failed to object to joinder with
MelendezSQindeed, he requested itSQwe review the district court's
failure to sever here only for plain error. Plain error is "error
so obvious and substantial that failure to notice it would affect
the fairness, integrity, or public reputation of (the) judicial
69Zafiro v. United States, 122 L.Ed.2d 317, 325 (1993).
30

proceedings and would result in manifest injustice."70 As noted
above, substantial evidence indicates that Carreon was involved in
a conspiracy to possess and to import marihuana. The district
court's failure to sever plainly did not cause any "manifest
injustice" here.
4. Heightened Standard of Proof for Certain Sentencing Facts
Carreon contends that the district court's findings of drug
quantities used to sentence him are subject to a "beyond a
reasonable doubt" burden of proof.71 Carreon reasons that this
higher standard is required here because the "sentencing fact is a
'tail that wags the dog of the substantive offense.'"72
Specifically, Carreon was indicted and eventually found guilty of
conspiring to possess and to import 100 or more kilograms of
marihuana, but was sentenced based on a finding that the quantity
involved was around 130,000 kilograms. The guideline range for the
minimum quantity found by the jury is 63 to 78 months;73 Carreon
70United States v. Pofahl, 990 F.2d 1456, 1479 (5th Cir.)
(internal quotations omitted), cert. denied, 114 S.Ct. 266
(1993).
71Carreon does not dispute that the general burden of proof
for sentencing facts is a preponderance of the evidence, see,
e.g., United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991);
instead, he argues that the consequences flowing from the
sentencing findings here justify the higher burden of proof.
72United States v. Mergerson, 4 F.3d 337, 343, 344 (5th Cir.
1993) (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)).
73Section 2D1.1 of the Guidelines imposes a base offense
level of 26 for amounts between 100 and 400 kilograms of
marihuana. Because Carreon falls within the criminal history
category of I, this quantity results in the calculation of a 63
to 78 month range under the Sentencing Table contained in Chapter
Five of the Guidelines.
31

was sentenced to 235 months based on the sentencing findings.
Our recent opinion in United States v. Mergerson74 disposes of
Carreon's claim. In Mergerson the relevant sentencing factSQthat
the defendant conspired to possess more than one kilogram of
heroinSQincreased his sentence from thirty years to life under the
Guidelines to mandatory life in prison without the possibility of
release under 21 U.S.C. з841(b)(1)(A)(i).75 We concluded that the
increase in the minimum sentence from thirty years to life "did not
have the dramatic effect upon sentencing necessary to require the
reasonable doubt standard to be considered."76 The difference
hereSQbetween approximately six and almost twenty yearsSQlikewise
does not constitute such a dramatic effect that it would justify
considering, much less imposing, the higher burden of proof.

5. Sufficiency of the Evidence as to Melendez
Melendez was found guilty of conspiring to import 100 or more
kilograms of marihuana, but was acquitted of conspiring to possess
that amount and of bribing a public official. Although substantial
evidence exists to support Melendez's importation conviction if the
testimony of the government's witnesses is accepted as credible,77
744 F.3d 337 (5th Cir. 1993).
75Id. at 343.
76Id. at 344.
77For example, coconspirator Charles Aragon testified to
importing and stashing marihuana for, among others, Armando
Melendez and his father Chuy. Both Aragon and coconspirator Ray
Donaldson testified to flying planeloads of marihuana supplied by
Armando Melendez. Aragon and another coconspirator, Jose Guzman,
testified to transporting marihuana to Chicago at Melendez'
direction. Finally, the undercover agent Maynes testified to
32

we pretermit further discussion on this issue as we must remand
Melendez's conviction for review of the PSRs of the coconspirators-
witnesses.
6. Sentencing Accountability for Acquitted Conduct
Melendez also argues that the district court violated the Due
Process Clause when it attributed marihuana to him that was part of
the possession conspiracy for which he was acquitted. Melendez's
contentionSQthat a district court cannot consider quantities
related to a conviction for which he was acquittedSQis meritless.
A district court may base a defendant's sentence on conduct for
which the defendant was acquitted because the government need only
establish sentencing facts (unlike the elements of the crime) by a
preponderance of the evidence.78
III
CONCLUSION
We hold today that relevant conduct as defined in
з1B1.3(a)(1)(B) is prospective only, and consequently relevant
conduct under з1B1.3 (a)(1)(B) cannot include conduct occurring
before the defendant joins a conspiracy. As Carreon's sentence
includes quantities arising out of drug transactions occurring
before he joined any conspiracy, we must vacate Carreon's sentence
and remand for resentencing. We also conclude that the absence of
meeting Melendez twice, receiving $2,000 in cash after the first
meeting, and discussing smuggling marihuana with Melendez at the
second.
78E.g., United States v. Allibhai, 939 F.2d 244, 254 (5th
Cir. 1991), cert. denied, 112 S.Ct. 967 (1992).
33

sentencing findings as to both Carreon and Melendez warrants remand
for findings and for resentencing both defendants.
Finally, we must remand Melendez's conviction for findings as
to whether the PSRs of the coconspirators-government witnesses
contained material Brady or Giglio information, and, if they do
contain such information, whether failure to disclose such
information was harmless error.
For the foregoing reasons, the sentences of Carreon and of
Melendez are VACATED and their cases REMANDED for resentencing;
and the conviction of Melendez is REMANDED (but not reversed) for
additional findings by the sentencing court.
34