United States v. Helm

21-2207
United States v. Helm
United States Court of Appeals
for the Second Circuit
August Term 2022
Argued: October 17, 2022
Decided: January 25, 2023
No. 21-2207
U NITED S TATES ,
Appellee,
v.
MACENZIE H ELM ,
Defendant-Appellant.*
On Appeal from the United States District Court
for the District of Vermont
Before: K EARSE , PARK, and PÉREZ , Circuit Judges.
Defendant-Appellant Macenzie Helm appeals from the
judgment of conviction entered by the United States District Court for
the District of Vermont (Crawford, C.J.) following his guilty plea to
* The Clerk is respectfully directed to amend the caption
accordingly.

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one count of conspiracy to distribute more than 50 kilograms (kg) of
marijuana in violation of 21 U.S.C. §§ 841, 846. During a reverse-
sting operation, Helm took possession of 10 kg of real and “sham”
cocaine from an undercover agent and agreed to take possession of 40
kg more. After his arrest, Helm told law enforcement that he
thought he was picking up marijuana or money, not cocaine. Helm
later entered a plea agreement, in which he pleaded guilty to one
count of conspiring to distribute marijuana. At sentencing, the
government raised and the district court considered the 50 kg of
cocaine as part of Helm’s “relevant conduct” under Sentencing
Guideline § 1B1.3(a)(1)(A). The district court sentenced Helm to 36
months’ imprisonment.
We conclude that (1) the plea agreement permitted the
government to raise that quantity of cocaine at sentencing, (2) the
government was not judicially estopped from doing so, and (3) the
district court did not err by considering the 50 kg of cocaine as part of
Helm’s “relevant conduct” because Guideline § 1B1.3(a)(1)(A) does
not require scienter as to drug type when a defendant is directly and
personally involved in a drug transaction. We thus AFFIRM the
judgment of the district court.
D ANIEL J. H AY , Sidley Austin LLP, Washington, DC
(Michael A. Levy, Sidley Austin LLP, New York, NY, on
the brief), for Defendant-Appellant.
MICHAEL P. D RESCHER, Assistant United States Attorney
(Gregory L. Waples, Assistant United States Attorney, on
the brief), for Nikolas P. Kerest, United States Attorney for
the District of Vermont, Burlington, VT, for Appellee.

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PARK, Circuit Judge:
Defendant-Appellant Macenzie Helm appeals from the
judgment of conviction entered by the United States District Court for
the District of Vermont (Crawford, C.J.) following his guilty plea to
one count of conspiracy to distribute more than 50 kilograms (kg) of
marijuana in violation of 21 U.S.C. §§ 841, 846. During a reverse-
sting operation, Helm took possession of 10 kg of real and “sham”
cocaine from an undercover agent and agreed to take possession of 40
kg more. After his arrest, Helm told law enforcement that he
thought he was picking up marijuana or money, not cocaine. Helm
later entered a plea agreement, in which he pleaded guilty to one
count of conspiring to distribute marijuana. At sentencing, the
government raised and the district court considered the 50 kg of
cocaine as part of Helm’s “relevant conduct” under Sentencing
Guideline § 1B1.3(a)(1)(A). The district court sentenced Helm to 36
months’ imprisonment.
We conclude that (1) the plea agreement permitted the
government to raise that quantity of cocaine at sentencing, (2) the
government was not judicially estopped from doing so, and (3) the
district court did not err by considering the 50 kg of cocaine as part of
Helm’s “relevant conduct” because Guideline § 1B1.3(a)(1)(A) does
not require scienter as to drug type when a defendant is directly and
personally involved in a drug transaction. We thus affirm the
judgment of the district court.

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I. BACKGROUND
A. The Reverse Sting1
In 2020, Macenzie Helm began to work for a Canadian drug-
trafficking organization. His responsibilities included picking up
money, marijuana, and cocaine, and on a typical trip, Helm
transported around 100 pounds of marijuana, delivered it to an
address in Flushing, New York, and received payment in the range of
$8,000 to $10,000. He did this eight or nine times. Helm enlisted
his mother and his brother to assist, and he communicated by text
with the Canadian leader of the organization. Helm also made two
trips to Pennsylvania to pick up bricks of cocaine, but both times
before Helm collected the cocaine, the leader called off the deal due
to money issues. After these trips, Helm informed the organization
that he did not want to be sent on cocaine pickups.
In the spring of 2020, the DEA seized a large quantity of cocaine
in South America that was destined for Canada. The DEA then
devised a reverse-sting operation, which involved a controlled
delivery of 50 kg of fake cocaine to the Canadian purchaser, which
was the leader’s drug-trafficking organization. 2 An undercover
DEA agent arranged a delivery of the 50 kg of cocaine to South
Burlington, Vermont on September 21, 2020.
1 The facts are taken from factual descriptions in the Presentence
Investigation Report, adopted by the district court as its findings of fact.
2 In “a classic ‘reverse sting’ operation,” “a government agent agrees
to provide a quantity of drugs for an agreed upon price.” United States v.
Chalarca, 95 F.3d 239, 247 n.2 (2d Cir. 1996) (Scullin, J., concurring).

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On or about September 19, 2020, the leader texted Helm asking
whether he was interested in making some easy money. Helm
accepted the job and recruited his mother to assist. Helm and his
mother drove to Vermont, and Helm called the undercover agent to
confirm the time and location of the transaction.
When Helm arrived, he exited the vehicle and met with the
undercover agent, who was wearing a wire. The undercover agent
then told Helm that the delivery was in two parts, and the agent
would pass Helm 10 first and then 40. Helm agreed. Before giving
Helm the initial 10, the undercover agent confirmed that Helm had
room for all 50 pieces, to which Helm replied in the affirmative. The
undercover agent then asked whether Helm would take the full 50
right away, and Helm agreed. The agent removed a duffle bag from
his vehicle, which contained 10 kg of fake cocaine and a zip-lock bag
with 530 grams of real cocaine. Helm took the bag and placed it in
his rental van. Surveillance agents promptly arrested him, and a
search of the van discovered $11,000. In post-arrest interrogations,
Helm admitted his involvement but insisted that he was never
informed of what he was picking up and assumed it was money or
marijuana. On at least one of his trips to Pennsylvania, however,
Helm knew that he was to pick up cocaine, because although those
deals fell through for monetary reasons, he admitted that on the
second trip he actually tested the cocaine and reported to the leader
of the organization that it was of good quality.
B. Procedural History
1. The Plea Agreement
Helm was charged with knowingly and willfully conspiring to
distribute a controlled substance, and a grand jury returned an

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indictment charging him with conspiracy to distribute cocaine in
violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C). Helm pleaded
not guilty.
Helm then entered into a plea agreement under which he
pleaded guilty to one count of knowingly and willfully conspiring to
distribute more than 50 kg of marijuana in violation of 21 U.S.C.
§§ 846, 841(a)(1), 841(b)(1)(C). In exchange for his guilty plea, the
government agreed:
(1) “not [to] prosecute him in the District of Vermont for any
other criminal offenses known to the United
States . . . committed by him in the District of Vermont
relative to drug distribution”;
(2) to “move to dismiss the Indictment after sentencing”;
(3) to recommend Helm “receive a two-point credit for
acceptance of responsibility under Guideline § 3E1.1(a),”
provided that Helm cooperate with the government; and
(4) to “move for an additional one-point credit for timely
acceptance of responsibility, if the offense level (before
acceptance) is 16 or greater.”
Sealed App’x at SA-4 to -5.3 The plea agreement also stated that
Helm “had [a] full opportunity to consult with his
attorney . . . concerning the applicability and impact of the Sentencing
3 Some portions of the record have been filed under seal; they are
hereby deemed unsealed to the extent that their contents are quoted or
described in this opinion.

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Guidelines (including, but not limited to, the relevant conduct
provisions of Guideline Section 1B1.3).” Id. at SA-6.
Finally, the agreement stated that “[t]here shall be no limit on
the information the United States may present to the Court and the
Probation Office relevant to sentencing and the positions the United
States may take regarding sentencing (except as specifically provided
elsewhere in this agreement).” Id. at SA-2. The plea agreement
contained no such exceptions.
2. Change-of-Plea Hearing
On May 7, 2021, the district court held a change-of-plea
hearing. The district court ensured that Helm understood the terms
of the plea agreement and confirmed that there were no “further
agreement[s] with the Government which [weren’t] written down in
the plea agreement or the exhibit.” App’x at A-19 to -24. The court
then inquired about the factual basis of Helm’s guilty plea, and the
government observed that “for purposes of the factual proffer to the
Court for this change of plea,” the government would accept that “the
objective” of Helm’s participation in the conspiracy was “the
distribution of marijuana,” not cocaine. Id. at A-36.
The government explicitly reserved arguments related to
cocaine for sentencing. For example, after accepting “for purposes
of the factual proffer” that Helm believed he was transporting
marijuana, the government stated that it “might disagree with
[Helm’s counsel’s] characterization” that Helm “had never dealt in
cocaine” because “that’s an issue for sentencing.” Id. at A-36 to -37.
And later, the government stated that “there may be disagreements
at sentencing involving the scope of relevant conduct, whether
cocaine should be included in relevant conduct.” Id. at A-41.

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The district court recognized that the relevance of cocaine was
“something the Government doesn’t take a position on today, [but it]
may be something in the future.” Id. at A-41. Right after this
colloquy, Helm pleaded guilty to conspiracy to distribute more than
50 kg of marijuana.
3. Sentencing and Appeal
The Presentence Investigation Report (“PSR”) computed a
Guidelines sentencing range of 51 to 63 months. In applying
Guideline § 1B1.3(a)(1)(A), which includes a defendant’s “relevant
conduct,” the PSR attributed 50 kg of cocaine to Helm.
Helm’s sentencing memorandum objected to the PSR’s
inclusion of the 50 kg of cocaine as “relevant conduct.” Helm
claimed that he thought he was picking up marijuana and that he had
previously informed the organization that he was not interested in
transporting cocaine. Helm also never came into actual possession
of 50 kg of cocaine, only the 530 grams of real cocaine.
The government replied that the cocaine was properly included
because it was “reasonably foreseeable” that Helm’s “role in the
conspiracy would include the transportation of 50 kilograms of
cocaine.” Sealed App’x at SA-22. Within a day, the government
realized its submission had confused Guideline § 1B1.3(a)(1)(A),
about a defendant’s own conduct, and Guideline § 1B1.3(a)(1)(B),
about the reasonably foreseeable conduct of those with whom a
defendant has jointly undertaken criminal activity. The government
clarified that “U.S.S.G. § 1B1.3(a)(1)(A) does not call on the Court to
consider foreseeability.” Id. at SA-26. It argued that because Helm
“personally and directly agreed to take all ’50 pieces,’” “he should be
held accountable for the 50 kilograms of cocaine [that] his

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conspirators sent him to collect, without considering the
foreseeability of the drug type and quantity.” Id. at SA-27.
At sentencing, the district court heard argument on the
inclusion of cocaine as part of Helm’s “relevant conduct.” Helm
reiterated that he thought he was dispatched to pick up marijuana,
not cocaine. The government credited Helm’s consistency “in
stating that he did not understand he was picking up cocaine,” but
explained that “unfortunately for Mr. Helm, that’s not . . . a relevant
consideration under the guidelines, specifically the definition of his
relevant conduct under 1B1.3(a)(1)(A).” App’x at A-51. Its view
was that Helm was directly involved with the 50 kg of cocaine even if
he lacked knowledge of the type of drug because he agreed to pick up
contraband, reached out to the undercover agent to coordinate the
drug transaction, drove to the agreed meeting place, and agreed at
several points to take all 50 kg of drugs from the undercover agent.
The district court agreed with the government.
“[F]oreseeability and expectation and understanding [are] relevant to
1B1.3[(a)](1)(B) when dealing with other people’s conduct in the
context of a jointly undertaken criminal activity. That’s not the
guideline calculation that we’re concerned with here,” reasoned the
district court. Id. at A-54. The district court concluded that “the
PSR got it right that [Helm’s] actions . . . included the attempt to
obtain the 50 kilograms of cocaine.” Id. at A-55. The district court
sentenced Helm to a below-Guidelines sentence of 36 months’
imprisonment followed by two years of supervised release.
Helm raises three arguments on appeal. First, the government
breached the plea agreement by arguing that Helm’s relevant conduct
included cocaine. Second, the government was judicially estopped

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from raising the 50 kg of cocaine at sentencing. Finally, the district
court erred in applying Guideline § 1B1.3(a)(1)(A) by holding Helm
responsible for the 50 kg of cocaine despite his lack of knowledge as
to drug type.
II. DISCUSSION
A. Breach of the Plea Agreement
Helm first argues that the government breached his plea
agreement by raising the 50 kg of cocaine as “relevant conduct” under
Guideline § 1B1.3(a)(1)(A). We reject this argument based on the
text of the plea agreement and the government’s conduct during the
proceedings.
1. Legal Standards
“We review a plea agreement in accordance with principles of
contract law and look to what the parties reasonably understood to
be the terms of the agreement to determine whether a breach has
occurred.” United States v. Sealed Defendant One, 49 F.4th 690, 696 (2d
Cir. 2022) (cleaned up). We do so by looking to “the precise terms of
the plea agreements and to the parties’ behavior.” United States v.
Wilson, 920 F.3d 155, 163 (2d Cir. 2019). “We construe plea
agreements strictly against the government and do not hesitate to
scrutinize the government’s conduct to ensure that it comports with
the highest standard of fairness.” Id. at 162 (cleaned up).
We review Helm’s breach-of-plea-agreement claim for plain
error. “Under Rule 51(b) of the Federal Rules of Criminal Procedure,
a defendant can preserve a claim of error ‘by informing the court’ of
the claimed error when the relevant ‘court ruling or order is made or
sought.’ If the defendant has ‘an opportunity to object’ and fails to

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do so, he forfeits the claim of error.” Greer v. United States, 141 S. Ct.
2090, 2096 (2021). If the defendant raises the forfeited claim on
appeal, we review for plain error. “To establish plain error, a
defendant must demonstrate: (1) error, (2) that is plain, and (3) that
affects substantial rights. If all three conditions are met, we will then
exercise our discretion to rectify this forfeited error only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019)
(cleaned up). In the context of an alleged breach of a plea agreement,
“the defendant must object in a manner sufficient to apprise the court
and opposing counsel of the nature of his claims regarding the
impropriety of the Government’s change in position.” United States
v. Taylor, 961 F.3d 68, 81 n.12 (2d Cir. 2020) (cleaned up).
Helm argues that he preserved his breach-of-plea argument
because he “consistently argued the conduct underlying his arrest
‘should be assessed [based on] 50kg of marijuana not cocaine.’”
Reply Br. at 4–5 (quoting Sealed App’x at SA-12). But Helm’s
argument at sentencing went to the merits of whether the district
court should consider the 50 kg of cocaine as “relevant conduct,” not
whether the plea agreement barred the government from arguing so.
Helm thus did not preserve the argument that the government acted
with “impropriety” so as to put the district court and opposing
counsel on notice, so we review for plain error. Taylor, 961 F.3d at 81
n.12.
2. The Plea Agreement
Helm had no reasonable expectation under the terms of the
plea agreement that the government would refrain from raising the
50 kg of cocaine at sentencing.

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The agreement states that “[t]here shall be no limit on the
information the United States may present to the Court and the
Probation Office relevant to sentencing and the positions the United
States may take regarding sentencing (except as specifically provided
elsewhere in this agreement).” Sealed App’x at SA-2. And the
agreement included no such exceptions. It also stated that Helm had
a “full opportunity to consult with his attorney [about the]
agreement . . . including, but not limited to, the relevant conduct
provisions of Guideline Section 1B1.3.” Id. at SA-6.
When a “plea agreement expressly provide[s] for the
government to take the very actions [the] Defendant now
characterizes as [a] breach[] of that agreement,” no breach has
occurred. Sealed Defendant One, 49 F.4th at 694. Helm’s plea
agreement disclaimed any substantive limitations on the information
the government could raise at sentencing. And for good measure,
Helm acknowledged having the opportunity to consult with counsel
about this specific issue. Together, these provisions ensured that
there was no unfair surprise when the government raised the 50 kg of
cocaine at sentencing as “relevant conduct.” We thus reject Helm’s
argument that he reasonably expected the government to refrain from
raising the 50 kg of cocaine at sentencing based on the text of the
agreement.
3. Parties’ Behavior
Nor did Helm have a reasonable expectation that the
government would not raise the 50 kg of cocaine at sentencing based
on the government’s behavior.
A defendant’s “reasonable expectations may be
breached . . . where the Government’s deviation [from the plea

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agreement] produces serious unfairness for the defendant.” Wilson,
920 F.3d at 163 (cleaned up). For example, “the government’s
change of position (without new justifying facts)” may “change[] the
defendant’s exposure so dramatically as to raise doubts whether the
defendant could reasonably be seen to have understood the risks of
the agreement.” United States v. Habbas, 527 F.3d 266, 271 (2d Cir.
2008). Helm claims that the government violated his reasonable
expectations by raising the 50 kg of cocaine at sentencing because (1)
he lacked notice, and (2) the central promise of his plea agreement—
i.e., his consideration—was nullified. Neither contention has merit.
a. Notice
Helm first argues that he lacked notice that the government
would raise the 50 kg of cocaine at sentencing, which breached his
reasonable expectations. But this is belied by the record.
At the change-of-plea hearing, the government made clear that
“for purposes of the factual proffer to the Court for this change of
plea,” the government would rely on Helm’s admission that “the
objective of” the conspiracy was “the distribution of marijuana.” 4
4 To establish the factual basis for Helm’s guilty plea, the Court must
“assure itself” that Helm knew he was handling a controlled substance.
United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997); see Fed. R. Crim.
P. 11(b)(3). “[T]he government need not prove scienter as to drug type or
quantity when a defendant personally and directly participates in a drug
transaction underlying a conspiracy charge.” United States v. Andino, 627
F.3d 41, 47 (2d Cir. 2010). Rather, the government is required to show that
the defendant knew “a controlled substance of one type or another” was
involved. Id. (emphasis added). So Helm’s admission that he believed
he was handling marijuana was sufficient to prove the factual basis of his
guilty plea. It does not follow, however, that the government’s acceptance

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App’x at A-36. As to the cocaine at issue in the conspiracy, however,
the government stated explicitly, “that’s an issue for sentencing.” Id.
at A-37. The government later reiterated that “there may be
disagreements at sentencing involving the scope of relevant conduct,
whether cocaine should be included in relevant conduct for purposes of
sentencing.” Id. at A-41 (emphasis added).
At oral argument, Helm’s counsel stated that these statements
were “a bit vague” and thus provided insufficient notice of the
government’s intentions at sentencing, but this argument does not
withstand scrutiny. Oral Argument at 2:41. The district court
clearly stated that the government was reserving cocaine-related
arguments for sentencing, recognizing on the record that the cocaine
is “something the Government doesn’t take a position on today, [but]
may be something in the future.” App’x at A-41. In fact, Helm’s
counsel shared this understanding, noting that Helm was admitting
only to knowledge of marijuana at the change-of-plea hearing and did
not want to “have [his] hands tied at sentencing,” in a way that would
allow “someone [to] say we acknowledge certain facts.” Id. at A-38.
These acknowledgments of the government’s intentions occurred
before Helm pleaded guilty, and at no point did he object.
b. Consideration
Helm next argues that the plea agreement could be reasonably
understood as limiting the government’s sentencing advocacy, but
the government breached when it “rendered the central part of the
of his admission of knowledge of that controlled substance to establish the
factual basis of Helm’s guilty plea was an implied promise to forego raising
other information at sentencing.

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plea agreement an empty formality that conferred no benefit on
Helm” by raising the 50 kg of cocaine at sentencing. Appellant’s Br.
at 29. Helm contends that he pleaded guilty based on his
understanding “that the Government was giving up the right to argue
at sentencing that he was a part of the drug trafficking organization’s
supposed cocaine conspiracy.” Id. at 27. At oral argument, Helm’s
counsel stated, “there would have been no reason, no benefit for
changing the [charge]” from cocaine to marijuana but for the
government’s implied promise not to raise the 50 kg of cocaine at
sentencing. Oral Argument at 5:27.
Plea agreements are examined using principles of contract law,
including the cardinal rule that “contracts are not valid unless
supported by consideration.” United States v. Brunetti, 376 F.3d 93,
95 (2d Cir. 2004). “[A] guilty plea can be challenged for contractual
invalidity, including invalidity based on a lack of consideration.” Id.
In exchange for a defendant’s guilty plea, the government may offer
consideration that comes in many forms, including reduced
sentencing exposure, a speedier “correctional process[],” and the
elimination of “the practical burdens of a trial.” Brady v. United
States, 397 U.S. 742, 752 (1970).
Helm’s plea agreement is not void for lack of consideration.
The government points to several benefits that Helm received by
pleading guilty to marijuana conspiracy instead of proceeding to trial
on cocaine conspiracy. For example, the reduced stigma of a
marijuana conviction compared to a cocaine conviction, a two-point
Guidelines credit for acceptance of responsibility, a one-point
Guidelines credit for timely acceptance of responsibility, and a
promise that the government would not prosecute him for other

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offenses related to drug distribution. See supra at 6–7. If Helm had
not pleaded guilty, he would not have received these benefits, which
are adequate consideration for a guilty plea. Helm points to no
authority that the change in charge (from cocaine to marijuana
conspiracy) implies a promise that the government would forbear
raising the 50 kg of cocaine. Helm also points to no evidence in the
record that he bargained for or requested that the government not
raise the 50 kg of cocaine at sentencing. We decline to infer such a
promise was made, especially when Helm confirmed to the district
court that he made no “further agreement” with the government.
App’x at A-23 to -24; Sealed App’x at SA-4 to -5.
We thus conclude based on the terms of the plea agreement and
the parties’ conduct that the government did not breach the
“reasonable understanding and expectations of the defendant” by
raising the 50 kg of cocaine at sentencing. Wilson, 920 F.3d at 163.
B. Judicial Estoppel
Helm next argues that the government was judicially estopped
from raising the 50 kg of cocaine at sentencing. He asks us to vacate
his sentence and remand for resentencing before a new judge. Even
assuming that principles of judicial estoppel are applicable in this
context, we conclude that the government was not so estopped here.
1. Legal Standards
This Court has never discussed whether the government may
be judicially estopped in criminal prosecutions as other Courts of
Appeals have, and we need not decide that question today. See
United States v. Quinones, 511 F.3d 289, 321 n.22 (2d Cir. 2007); cf.
United States v. Grap, 368 F.3d 824, 830–31 (8th Cir. 2004). But see

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United States v. Binday, 804 F.3d 558, 599 (2d Cir. 2015) (reviewing on
the merits an argument that the government was judicially estopped
from making an argument at sentencing based on its position at trial).
But in private civil litigation, we have held that “[j]udicial estoppel is
properly invoked where: (1) a party’s later position is clearly
inconsistent with its earlier position, and (2) the party’s former
position has been adopted in some way by the court in an earlier
proceeding.” Ashmore v. CGI Grp., Inc., 923 F.3d 260, 272 (2d Cir.
2019). In some cases, we have also required a showing of “an unfair
advantage.” Id.
We review for plain error. For much the same reason that
Helm failed to preserve his breach-of-agreement argument, see supra
at 11–12, we also conclude that Helm failed to preserve his judicial-
estoppel argument. Helm’s arguments before the district court went
to whether the cocaine was properly considered “relevant conduct,”
not to whether the government acted inconsistently or deceitfully in
making this argument.
2. Estoppel in Helm’s Case
Even accepting that judicial estoppel could apply in this
context, Helm has failed to show that it would be appropriate. First,
there was no inconsistency between the government’s arguments at
the change-of-plea hearing and sentencing. “[T]here must be a true
inconsistency between the statements in the two proceedings. If the
statements can be reconciled there is no occasion to apply an
estoppel.” Simon v. Safelite Glass Corp., 128 F.3d 68, 72–73 (2d Cir.
1997). To demonstrate the factual basis for Helm’s guilty plea under
21 U.S.C. § 841, the government had to show that Helm “intended to
distribute and possess with the intent to distribute any controlled

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substance.” United States v. Abdulle, 564 F.3d 119, 126 (2d Cir. 2009);
see supra note 4. Helm’s admission that he thought he was picking
up marijuana satisfied this requirement, so the government
temporarily accepted this admission to support the factual basis for
Helm’s guilty plea. But at the same hearing, the government
expressly reserved the right to raise the 50 kg of cocaine at sentencing
as “relevant conduct,” which the district court acknowledged and to
which Helm did not object before pleading guilty. See App’x at A-
37 to -38, A-41.
Second, the district court never adopted the position that the
cocaine issue was immaterial to Helm’s sentence. The district court
was aware that the government’s factual basis for Helm’s plea was
based on marijuana, whereas its argument at sentencing would focus
on cocaine. See supra at 14–15. In fact, the district court noted that
the “Government doesn’t take a position on” cocaine for purposes of
“the factual representations” at the change-of-plea hearing, but the
cocaine issue “may be something in the future.” App’x at A-41.
Finally, Helm fails to show that the government “derive[d] an
unfair advantage or impose[d] an unfair detriment” on him. New
Hampshire v. Maine, 532 U.S. 742, 751 (2001). Although Helm faced a
higher sentence once the cocaine was incorporated as part of his
“relevant conduct,” it was not “unfair” for purposes of judicial
estoppel. The Guidelines contemplate that the government may
bring information to a sentencing court’s attention, including a
defendant’s “relevant” conduct that is different from his charged
conduct. See Guideline § 1B1.3 application n.1 (2021). Indeed, the
government explicitly stated its intent to do so here, as the district
court acknowledged during the change-of-plea hearing. We reject

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Helm’s judicial-estoppel argument because we find no merit in
Helm’s suggestion that he faced an “unfair detriment” based on the
government doing something that it stated clearly it might do before
Helm entered into the plea agreement.
C. Relevant Conduct Under Guideline § 1B1.3(a)(1)(A)
Finally, Helm argues that the district court erred by considering
the 50 kg of cocaine as part of his “relevant conduct” because Helm
lacked knowledge that the controlled substance was cocaine and
actually received only 530 grams of real cocaine. We disagree.
1. Legal Standards
Before the Sentencing Guidelines, “the law was settled that a
defendant’s wrongful conduct, beyond the conduct constituting the
offense of conviction, was relevant to punishment.” United States v.
Shonubi, 103 F.3d 1085, 1088 (2d Cir. 1997) (citing Williams v. New York,
337 U.S. 241, 246–47 (1949)). There was little, if any, limitation to
what “unconvicted” conduct a sentencing court could consider. Id.
One “major controversy” in the creation of the Sentencing Guidelines
was “whether a guideline should be selected according to a
defendant’s so-called ‘real offense’—what he did—or only according
to the so-called ‘charge offense’—the offense for which he was
convicted.” United States v. Guerrero, 863 F.2d 245, 248 (2d Cir. 1988).
The Guidelines sought to strike a balance between “punishing only
for the offense of conviction and punishing for all wrongful conduct
that could be established at a sentencing hearing.” Shonubi, 103 F.3d
at 1088. Compromise came in the form of Sentencing Guideline
§ 1B1.3, which limits what “unconvicted” conduct may be considered
“relevant” for sentencing purposes. Id.

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The Guidelines recognize two forms of “relevant conduct.”
First, it includes “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
the defendant . . . that occurred during the commission of the offense
of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense.”
Guideline § 1B1.3(a)(1)(A). In other words, Guideline
§ 1B1.3(a)(1)(A) concerns a defendant’s own relevant conduct.
Second, “relevant conduct” includes, “in the case of a jointly
undertaken criminal activity . . . all acts and omissions of others that
were[] (i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and (iii) reasonably
foreseeable in connection with that criminal activity[] that occurred
during the commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or
responsibility for that offense.” Guideline § 1B1.3(a)(1)(B). This
Guideline thus concerns the acts of others with whom a defendant
jointly undertook criminal activity. At Helm’s sentencing, the
district court explained that Guideline § 1B1.3(a)(1)(B) was “not the
guideline . . . that we’re concerned with here” and proceeded to
sentence Helm under Guideline § 1B1.3(a)(1)(A). App’x at A-54.
“[F]or a district court’s application of the Guidelines to the
specific facts of a case, we . . . follow an ‘either/or approach,’ adopting
a de novo standard of review when the district court’s application
determination was primarily legal in nature, and adopting a ‘clear
error’ approach when the determination was primarily factual.”
United States v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006). The parties
agree that there are few, if any, disputed facts, so we review de novo.

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In United States v. Chalarca, we stated that “a defendant who is
a party to . . . a [drug] conspiracy is accountable for the quantities of
narcotics in which he had a direct, personal involvement.” 95 F.3d
239, 243 (2d Cir. 1996). A defendant’s “direct, personal
involvement” with a quantity of drugs includes (1) “constructive[]
possess[ion] [of] drugs or actual[] possess[ion],” id. at 243, 244; and
(2) nonpossessory conduct such as a defendant agreeing to sell drugs
or facilitating a drug transaction, see United States v. Schaper, 903 F.2d
891, 898 (2d Cir. 1990); Guerrero, 863 F.2d at 250.
The question here is whether Guideline § 1B1.3(a)(1)(A)
requires a defendant to know the type of drug with which he has
“direct, personal involvement,” Chalarca, 95 F.3d at 243, for the drug
quantity to be considered as relevant conduct. Helm attempts to
distinguish how Guideline § 1B1.3(a)(1)(A) treats possessory and
nonpossessory conduct in a drug conspiracy. He concedes that “it is
possible that Helm could be held responsible for the 530 grams of real
cocaine that he actually received,” but he argues that his “relevant
conduct” cannot include the full 50 kg of cocaine because he never
had “possession of 50 kilograms of cocaine” and “did not intend to
do so.” Appellant’s Br. at 41; see Reply Br. at 26–28.
In the possessory context, we have long held that there is no
scienter requirement as to drug type and quantity under Guideline
§ 1B1.3(a)(1)(A). In United States v. Obi, we held that when a
defendant believed he was trafficking cocaine rather than heroin, the
district court properly considered the full quantity of heroin that the
defendant had attempted to smuggle by swallowing forty-three drug
balloons. 947 F.2d 1031, 1032 (2d Cir. 1991); see also United States v.
Castrillon, 376 F.3d 46, 47 (2d Cir. 2004) (“[O]ur prior caselaw hold[s]

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that a defendant need not know the type or quantity of drugs when
he is in direct possession of them as part of a conspiracy.”).
We have not yet specifically addressed, however, whether
scienter is required for drug type in the nonpossessory context under
Guideline § 1B1.3(a)(1)(A). Nonpossessory conduct may include a
defendant who—without ever coming into actual or constructive
possession—agrees to purchase a quantity of drugs or plays a key role
in facilitating or orchestrating a drug transaction. See, e.g., Chalarca,
95 F.3d at 244 (explaining that “aware[ness] that the purpose of [the]
trip to the scene was to purchase [drugs]” and “knowledge of what
was taking place” would show direct and personal involvement). In
this context, we have implied a strict-liability rule for drug quantity.
See, e.g., id. at 243 (citing United States v. Lockhart, 37 F.3d 1451, 1454
(10th Cir. 1994) (holding that relevant conduct includes the full
quantity of drugs despite the defendant’s lack of knowledge of the
quantity involved)).5
2. Interpretation of Guideline § 1B1.3(a)(1)(A)
In the context of a drug conspiracy, “relevant conduct” under
Guideline § 1B1.3(a)(1)(A) includes a quantity of drugs with which a
defendant is directly and personally involved even if he lacks
knowledge of the specific drug type. The text of the Guidelines, the
5 See also, e.g., United States v. Pitcher, 7 F. App’x 119, 121 (2d Cir.
2001) (holding that a defendant was responsible for the full quantity of
drugs when he “recruited the courier, helped him obtain a passport, and
drove him to the airport” despite the defendant not knowing the quantity
involved); United States v. Atehortua, 278 F. App’x 77, 79 (2d Cir. 2008)
(holding that a defendant was responsible for the full quantity of drugs
when he knowingly drove to the “scene of the crime in order to purchase
drugs”).

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Guidelines commentary, and general background principles of
sentencing support this interpretation.
a. Text
“Statutory interpretation, as we always say, begins with the
text.” Ross v. Blake, 578 U.S. 632, 638 (2016); United States v. Lewis, 93
F.3d 1075, 1080 (2d Cir. 1996) (“Interpretation of the Guidelines is
similar to statutory construction.”). “When resolving a dispute over
a statute’s meaning, our principal task is to afford the law’s terms
their ordinary meaning at the time Congress adopted them. When
the statutory text is plain and unambiguous, our sole function is to
enforce it according to its terms.” United States v. Bedi, 15 F.4th 222,
226 (2d Cir. 2021) (cleaned up).
Sentencing Guideline § 1B1.3(a)(1)(A) includes as “relevant
conduct” “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
the defendant . . . that occurred during the commission of the
offense.” Subsection (A) includes no scienter requirement. In the
context of controlled-substance offenses, a defendant’s “relevant
conduct” may include drugs “with which he was directly involved.”
Chalarca, 95 F.3d at 243 (quoting Guideline § 1B1.3(a)(1)(A)
application n.2 (1995)). So a defendant may be held responsible for
drugs with which he was “directly involved” even if he did not know
the specific drug type.
By comparison, Guideline § 1B1.3(a)(1)(B) (the neighboring
provision for the acts of others) does contain a scienter requirement, as
“acts and omissions of others” must be “reasonably foreseeable in
connection with that criminal activity.” We have interpreted this
language to require a sentencing court to “make findings as to [a

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defendant’s] knowledge and [the] foreseeability” of “the full
quantity” and “different types of narcotics” involved in jointly
undertaken criminal activity before that drug quantity may be
considered “relevant conduct.” United States v. Negron, 967 F.2d 68,
72 (2d Cir. 1992) (emphasis added). “[F]ollowing both the
presumption of consistent usage and meaningful variation, and the
textual canon of expressio unius est exclusio alterius,” Novella v.
Westchester County, 661 F.3d 128, 142 (2d Cir. 2011), the presence of a
reasonable-foreseeability scienter requirement in Guideline
§ 1B1.3(a)(1)(B) as to drug quantity and type implies that the omission
of a similar provision in Guideline § 1B1.3(a)(1)(A) was deliberate.
So Guideline § 1B1.3(a)(1)(B)’s expression of a scienter requirement as
to drug type permits a negative inference that Guideline
§ 1B1.3(a)(1)(A) lacks such a requirement.
b. Guidelines Commentary
The commentary further supports the interpretation that
Guideline § 1B1.3(a)(1)(A) lacks a scienter requirement as to drug
type. “Commentary and application notes in the Guidelines must
be given controlling weight unless they: (1) conflict with a federal
statute, (2) violate the Constitution, or (3) are plainly erroneous or
inconsistent with the Guidelines provision they purport to interpret.”
United States v. Moore, 916 F.3d 231, 237 (2d Cir. 2019). Neither party
contends that such exceptions apply here.
First, Application Note 3(D) suggests there is no scienter
requirement under Guideline § 1B1.3(a)(1)(A). “With respect to
offenses involving contraband (including controlled substances), the
defendant is accountable under subsection (a)(1)(A) for all quantities
of contraband with which he was directly involved.” Guideline

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§ 1B1.3(a)(1)(B) application n.3(D) (2021). By contrast, under section
1B1.3(a)(1)(B) a defendant is responsible for “all quantities of
contraband that were involved in transactions carried out by other
participants, if those transactions . . . were reasonably foreseeable.” Id.
(emphasis added). “The requirement of reasonable foreseeability
applies only in respect to the conduct . . . of others under subsection
(a)(1)(B). It does not apply to conduct that the defendant personally
undertakes . . . under subsection (a)(1)(A).” Id.
Second, Application Note 4 to Section 1B1.3 offers an
illustrative example: “a defendant who transports a suitcase knowing
that it contains a controlled substance . . . is accountable for the
controlled substance in the suitcase regardless of his knowledge or
lack of knowledge of the actual type or amount of that controlled
substance.” Guideline § 1B1.3(a)(1)(A) application n.4(A)(i) (2021)
(emphasis added). Although this example relates to possession, the
commentary notes that the suitcase example is “conceptually similar”
to a nonpossessory example involving a defendant who personally
offloaded some quantity of marijuana but is responsible for the full
quantity (including marijuana he never possessed) because he “aided
and abetted the off-loading of the entire shipment.” Id. This
conceptual similarity suggests that in both examples, the “lack of
knowledge of the actual type” of drug is not a bar to considering the
full quantity of drugs as relevant conduct.
c. Background Principles
Reading Guideline § 1B1.3(a)(1)(A) against background
principles of sentencing further confirms that there is no scienter
requirement as to drug type. The Guidelines were written with an
understanding of the longstanding practice that “a sentencing judge

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could exercise a wide discretion in the sources and types of evidence
used to assist him in determining the kind and extent of punishment
to be imposed within limits fixed by law.” Williams, 337 U.S. at 246.
This Court has read the “relevant conduct” Guidelines in parallel
with the substantive conspiracy statute to which Helm pleaded
guilty. In United States v. Andino, we held that “the government need
not prove scienter as to drug type or quantity when a defendant
personally and directly participates in a drug transaction underlying
a conspiracy charge.” 627 F.3d 41, 47 (2d Cir. 2010). We similarly
conclude that this lack of a scienter requirement also applies at
sentencing under Guideline § 1B1.3(a)(1)(A). District courts may
generally consider more information at sentencing than during the
liability phase of proceedings, so it would be odd to read into the
Guidelines a scienter requirement that is not a requirement for
liability. See United States v. Reese, 33 F.3d 166, 174 (2d Cir. 1994).
Finally, we note that two of our sister circuits have also
interpreted Guideline § 1B1.3(a)(1)(A) as lacking a scienter
requirement as to drug type in the nonpossessory context. See
United States v. Strange, 102 F.3d 356, 360–61 (8th Cir. 1996); United
States v. Salazar, 5 F.3d 445, 446–47 (9th Cir. 1993).
3. Application
The district court did not err by considering the 50 kg of cocaine
as part of Helm’s relevant conduct. First, Helm’s relevant conduct
under Guideline § 1B1.3(a)(1)(A) includes his possession of the 10 kg
of real and sham cocaine in the duffel bag despite his alleged lack of
knowledge that it was cocaine. See Obi, 947 F.2d at 1032.
Second, Helm’s relevant conduct also includes the additional
40 kg of cocaine that he agreed to transport. Helm’s nonpossessory

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conduct constitutes “direct, personal involvement” with the 40 kg of
cocaine under Guideline § 1B1.3(a)(1)(A) because he drove to the
drug transaction, called the undercover agent to confirm the time and
location, exited the vehicle to speak with the undercover agent,
agreed to take delivery of all 50 pieces, and confirmed that he would
take 10 first and then the additional 40 right away. We have found
similar conduct sufficiently direct and personal to constitute an “act”
under Guideline § 1B1.3(a)(1)(A). See, e.g., Chalarca, 95 F.3d at 243
(citing with approval Lockhart, 37 F.3d 1451, in which a defendant
knew he was driving his coconspirator to a cocaine purchase despite
the defendant never handling the drugs). Helm’s personal and
direct involvement with the 40 kg of cocaine—despite his alleged lack
of knowledge that it was cocaine—permitted the district court to
consider this quantity as part of his relevant conduct.
Finally, we reject Helm’s argument that the district court erred
by considering the 50 kg of cocaine because some quantity of the
cocaine did not exist. Helm points to no authority suggesting a
defendant’s relevant conduct includes quantities of real drugs only.6
Such a position is untenable and would require law enforcement to
use large quantities of real drugs and/or money in sting or reverse-
sting operations.7 See United States v. Crawford, 991 F.2d 1328, 1333
6 We have permitted the use of “look-alike” or “sham” cocaine to
prove a defendant’s criminal liability for drug conspiracy charges and to
calculate a defendant’s Sentencing Guidelines range. See Andino, 627 F.3d
at 43; United States v. Caban, 173 F.3d 89, 92 (2d Cir. 1999). In both cases,
the fact that some of the drugs were “sham” was not a defense.
7 Although Helm raised the issues of sentencing manipulation and
entrapment in passing, these concerns are attenuated here. It is true that
reverse-sting operations provide “the government [with] a greater than

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(7th Cir. 1993) (“[T]he DEA, as seller or buyer, need not actually
intend to produce the drugs or the money promised to [the]
defendant during . . . an undercover operation. . . . The Guidelines
treat success and failure, conviction and no conviction, alike in drug
cases, so long as the amounts are ascertainable.” (cleaned up)).
III. CONCLUSION
The plea agreement and principles of judicial estoppel did not
bar the government from raising as “relevant conduct” the 50 kg of
cocaine Helm agreed to handle as part of a drug conspiracy.
Moreover, in the drug-conspiracy context, Sentencing Guideline
§ 1B1.3(a)(1)(A) lacks a scienter requirement as to drug type when a
defendant is directly and personally involved in the drug transaction,
so the district court did not err in taking the 50 kg of cocaine into
account as Helm’s own relevant conduct. For the foregoing reasons,
we affirm. We have considered all of Helm’s contentions on this
appeal and have found them to be without merit.
usual ability to influence a defendant’s ultimate Guidelines level and
sentence” because the government controls the quantity and type of drug.
Caban, 173 F.3d at 93. A defendant could, in theory, face punishment “for
the government’s conduct instead of his own.” Crawford, 991 F.2d at 1334.
In light of such risks, the Guidelines commentary encourages sentencing
courts to consider as relevant conduct the “agreed-upon” quantity of drugs
(instead of the amount actually delivered by the government) and to make
a downward departure when the government sells drugs “substantially
below the market value.” Guideline § 2D1.1 application nn.5, 27(A)
(2021). In Helm’s case, the district court did consider the agreed-upon
quantity of 50 kg, and there is no allegation that the government discounted
the price as an enticement.

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