United States v. MacIas-valencia , 417 F. App'x 686 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10474
Plaintiff - Appellee, D.C. No. 5:06-cr-00010-RMW-2
v.
MEMORANDUM*
HECTOR JAVIER MACIAS-
VALENCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Howard R. Lloyd, Magistrate Judge, Presiding
Submitted February 28, 2011**
San Francisco, California
Before: SCHROEDER, CANBY, and HAWKINS, Circuit Judges.
Hector Javier Macias-Valencia (“Macias”) appeals his 132-month sentence for
conspiracy to possess with intent to distribute and attempted possession with intent
to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§§ 841(a)(1), 841(b)(1)(A)(viii) and 846. We affirm under the deferential clear error
standard. See United States v. Asagba, 77 F.3d 324, 325-26 (9th Cir. 1996).
A district court’s method of approximating the relevant quantity of drugs under
the Sentencing Guidelines is reviewed de novo. United States v. Chase, 499 F.3d
1061, 1068 (9th Cir. 2007). The determination of the quantity of drugs involved in
an offense is a factual finding reviewed for clear error. United States v. Dallman, 533
F.3d 755, 760 (9th Cir. 2009) (as amended); Asagba, 77 F.3d at 325. In a reverse-
sting where no actual drugs are seized, the agreed-upon quantity serves as the
approximated quantity for determining the offense level, excluding any amount a
defendant like Macias is able to establish by a preponderance of the evidence that he
“did not intend to . . . purchase, or was not reasonably capable of . . . purchasing.” See
U.S.S.G. § 2D1.1, Application Note 12 (1995).
We remanded Macias’s first sentencing appeal so that the district court could
determine whether this exclusion applied here, noting in particular that: (1) DEA
Agent Alvarez, an experienced agent handling the transaction, believed the defendants
only intended to purchase one-half pound at that time; and (2) Macias and his brother
had only $4,689 with them, which could buy only slightly more than one-half pound
of methamphetamine at “market” prices, according to Agent Alvarez.
2
The district court considered this evidence but ultimately was persuaded by an
audio recording of Macias’s conduct at the buy-bust that Macias had the intent to
consummate the transaction for one pound “either by subterfuge or by . . . getting an
advance,” and that there was no evidence showing Macias was incapable of executing
his intent given his experience and sophistication participating in drug deals. Under
our deferential standard of review, we cannot say this was clear error.
The sentence is also substantively reasonable, as Macias’s 132-month sentence,
which the district court reduced from 151 months to account for Macias’s
rehabilitation efforts, already falls within the Guidelines range for an offense
involving only one-half pound of methamphetamine.1 See United States v. Grissom,
525 F.3d 691, 696 (9th Cir. 2008).
AFFIRMED.
1
One pound equals approximately 454 grams. A half-pound of
methamphetamine mixture with a 60 percent purity level equals approximately 136
grams of actual methamphetamine, which would yield a sentencing range of 121 to
151 months, based on Macias’s criminal history, in contrast to the 151 to 188 month
range calculated by the district court.
3