United States v. Oscar Ortiz

We write to clarify the proper standard for determining relevant conduct for jointly undertaken criminal activity under USSG § lB1.3(a)(l)(B) as amended in 1992: the conduct must be both in furtherance of jointly undertaken activity and reasonably foreseeable. This differs from the standard we previously adopted for determining relevant conduct under the 1990 version of the guidelines — that each conspirator is to be held accountable for conduct that he reasonably foresaw or which fell within the scope of his particular agreement. See United States v. Gutierrez-Hernandez, 94 F.3d 582, 585 (9th Cir.1996) (applying USSG § 1B1.3, cmt. (n.l) (Nov.1990)). The reason for the difference is that commentary to § 1B1.3 was amended in 1992 to embrace a conjunctive test. USSG App. C, Amendment 439, commentary to § 1B1.3 Application Note 2 (1992). Accordingly, to eliminate confusion, we now hold that for sentencings governed by the revised guidelines which became effective November 1,1992, district courts must make two findings in order to attribute the conduct of others to a defendant under § lB1.3(a)(i)(B): that the conduct was in furtherance of jointly undertaken criminal activity, and that…