Let me begin here with the bottom line: We cannot object to drug quantity on the basis of X, and appeal drug quantity on the basis of Y. Now for the details:
Sentencing in drug cases continues to be driven by drug quantity. As you know, this means that both guideline sentences and statutory mandatory minimum sentences may be significantly increased for a conspiracy defendant based on the quantities dealt by his or her codefendants---but only if the judge makes the particularized findings required by USSG 1B1.3(1)(B).
Last week, the Tenth Circuit issued a stark reminder that we need to be specific in our objections to the judge's findings when it comes to drug quantity.
First, we should always remember that factual allegations in the PSR become actual facts at sentencing if we don't object to them. This is by way of Rule 32, which warns that the sentencing court "may accept any undisputed portion of the presentence report as a finding of fact."
Second, the judge must make a number of findings under Section 1B1.3(1)(B), and we need to be specific about which of those findings is disputed. Do we object to how the judge has defined "the jointly undertaken criminal activity"? Or do we object to how the judge has measured whether certain conduct fell within the "scope" of that activity, or whether it was "in furtherance" of that activity or "reasonably foreseeable" in connection with that activity?
In United States v. Bustamante-Conchas, the defendant framed his objection to the sentencing court's drug quantity finding in terms of foreseeability and only foreseeability. On appeal, he argued that the court failed to make a particularized finding as to the scope of the jointly undertaken criminal activity. But we can't object to relevant conduct on one ground below, and on a different ground on appeal: "Without a timely objection on the specific ground now argued, the issue of the district court’s scope finding was forfeited."