United States v. Rodriguez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 24, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-7042
v. (E.D. Oklahoma)
JULIO C ESAR RO DR IGU EZ, (D.C. No. CR -04-00089-001-P)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, A ND ER SO N, and BROR BY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant-Appellant Julio Cesar Rodriguez pled guilty to one count of
conspiracy to possess with intent to distribute ten kilograms of cocaine, in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
violation of 21 U.S.C. § 846. He was sentenced to 135 months’ imprisonment,
followed by five years of supervised release. Rodriguez appeals, arguing that the
district court erred in determining that the quantity of cocaine for sentencing
purposes was ten kilograms. W e affirm.
BACKGROUND
On July 8, 2004, during the course of an investigation she was conducting,
Rosa Reyes, an agent with the Oklahoma State Bureau of Narcotics and
Dangerous D rugs Control, received a telephone call from defendant Rodriguez, in
which he indicated he was interested in purchasing ten kilograms of cocaine “if
the price was right.” Tr. of Sentencing Hr’g at 6, R. Vol. 3. Rodriguez suggested
they meet in person to discuss the price, so Reyes and Rodriguez agreed to meet
the next day, July 9, in the parking lot of Braum’s Restaurant in Ardmore,
Oklahoma.
Accordingly, Rodriguez and his co-defendant, Daniel Perez Castano, met
with Reyes and another agent on the 9th. Agent Reyes told Rodriguez and
Castano that the regular price for a kilogram of cocaine was $17,000, but that if
they bought all ten kilograms, the price would be $13,500 per kilogram. Reyes
testified that Rodriguez and Castano “said that ten kilograms for them w as no
problem because they had a lot of black clients w ho rock it up [i.e., turn it into
crack cocaine].” Id. at 10. She further testified that Rodriguez and Castano said
-2-
“that they were going to collect or gather up the money for the ten kilograms.”
Id. at 12.
During the evening of the 9th, Reyes and Rodriguez talked on the
telephone. Rodriguez indicated he was only able to obtain enough money to buy
four kilograms of cocaine. However, Rodriguez told Reyes that after he gave
Reyes the money for the four kilograms of cocaine, he and Castano would go to
Dallas, sell the cocaine, and bring back sufficient money to buy the remaining six
kilograms that same day (July 10th).
On July 10, Agent Reyes and the other agent met once again with
Rodriguez and Castano outside the Braum’s Restaurant in Ardmore. W hen Reyes
entered Rodriguez’s car, Rodriguez handed her a sealed plastic bag which he said
contained $13,500 for the purchase of one kilogram of cocaine. Rodriguez
indicated Castano had the rest of the cash for the purchase of the other three
kilograms.
Rodriguez and Castano were then arrested. Law enforcement authorities
found $13,500 in cash in the bag Rodriguez was carrying and approximately
$37,000 in the bag Castano was carrying. Additionally, authorities found a
loaded 9 mm. automatic handgun on Castano.
As indicated, Rodriguez eventually pled guilty without a written plea
agreement. In preparation for sentencing, the United States Probation Office
prepared a presentence report (“PSR”), which recommended an advisory
-3-
sentencing range under the United States Sentencing Commission, Guidelines
M anual (“USSG ”) (2003). 1 The PSR calculated a base offense level of thirty-two,
corresponding to ten kilograms of cocaine. It then recommended a two-level
increase for Rodriguez’s co-defendant’s (Castano’s) possession of a firearm, as
well as a two-level decrease for acceptance of responsibility, resulting in a total
adjusted offense level of thirty-two. W ith a criminal history category of II,
Rodriguez’s advisory guideline sentencing range was 135 to 168 months.
Rodriguez objected to, inter alia, the drug-quantity-based offense level, which the
district court overruled after conducting an evidentiary hearing on the day of
sentencing. Following the PSR, the district court sentenced Rodriguez to 135
months’ imprisonment, followed by five years of supervised release.
On appeal, Rodriguez argues that the district court erred when it
determined that the amount of cocaine involved, for purposes of calculating the
base offense level for sentencing purposes under USSG §2D1.1, was ten
kilograms.
D ISC USSIO N
W e review the legal determinations underlying the district court’s
sentencing decisions de novo and we review any factual findings for clear error.
1
The PSR stated it was using the 2003 version of the Guidelines in arriving
at a guidelines sentence. As discussed, infra, the parties argue over which version
of the guidelines should be used to sentence Rodriguez.
-4-
U nited States v. Zunie, 444 F.3d 1230, 1236 (10th Cir. 2006). “W e review a
sentencing court’s determination of the quantity of drugs attributable to a
defendant for clear error.” U nited States v. Lauder, 409 F.3d 1254, 1267 (10th
Cir. 2005).
The guideline for a violation of 21 U.S.C. § 846 is USSG §2D1.1. Pursuant
to USSG §§2D1.1(a)(3) and (c)(4), the base offense level for offenses involving
at least five kilograms but less than fifteen kilograms of cocaine is 32. Thus, the
PSR assigned a base offense level of 32 to the ten kilograms of cocaine Rodriguez
was charged with possessing.
As indicated, the PSR stated that it was applying the 2003 version of the
guidelines in calculating Rodriguez’s sentence. In the 2003 version of the
guidelines, Application Note 12 to §2D 1.1 provided as follow s:
In an offense involving an agreement to sell a controlled
substance, the agreed-upon quantity of the controlled substance shall
be used to determine the offense level unless the sale is completed
and the amount delivered more accurately reflects the scale of the
offense. For example, a defendant agrees to sell 500 grams of
cocaine, the transaction is completed by the delivery of the
controlled substance – actually 480 grams of cocaine, and no further
delivery is scheduled. In this example, the amount delivered more
accurately reflects the scale of the offense. In contrast, in a reverse
sting, the agreed-upon quantity of the controlled substance would
more accurately reflect the scale of the offense because the amount
actually delivered is controlled by the government, not by the
defendant. If, however, the defendant established that he or she did
not intend to provide, or was not reasonably capable of providing, the
agreed-upon quantity of the controlled substance, the court shall
exclude from the offense level determination the amount of
-5-
controlled substance that the defendant established that he or she did
not intend to provide or was not reasonably capable of providing.
USSG §2D1.1, comment. (n.12) (2003). The last sentence of the Application
Note w as the subject of much discussion and confusion, because, in context, it
appeared to apply to reverse sting operations, but its language, referring only to
situations w here the defendant provides drugs, suggested it could not apply to
reverse stings. See United States v. Smack, 347 F.3d 533, 538 (3d Cir. 2003)
(“Note 12 is opaque and confusing.”); United States v. Hardwell, 80 F.3d 1471,
1497 (10th Cir. 1996) (“W hether the second sentence quoted from Note 12
applies in reverse stings is unsettled.”).
To clarify this confusion, Application Note 12 was amended, effective
November 1, 2004, so that the last sentence now reads as follow s:
If, however, the defendant establishes that the defendant did not
intend to provide or purchase, or was not reasonably capable of
providing or purchasing, the agreed-upon quantity of the controlled
substance, the court shall exclude from the offense level
determination the amount of controlled substance that the defendant
established that the defendant did not intend to provide or purchase
or was not reasonably capable of providing or purchasing.
USSG §2D1.1, comment. (n.12) (2004). The PSR in this case was dated
November 8, 2004. W hen Rodriguez objected to the use of the 2003 guidelines
rather than the 2004 version, the probation office responded:
The 2004 Guidelines M anual was not published and distributed at the
time the report was submitted. The 2003 edition of the guidelines
has been compared to the 2004 edition and there are no Ex Post Facto
issues arising from subsequent guideline amendments, which would
-6-
impact the sentencing options in this case. Therefore, the guideline
computations remain the same under the 2004 edition of the
Guidelines M anual.
Addendum to PSR , R. Vol. 4.
Rodriguez argues the 2004 version of the guidelines, including Application
Note 12, should apply; under that version, the agreed-upon quantity is
determinative of the base offense level; and that, in this case, four kilograms of
cocaine was the agreed-upon quantity for purposes of Note 12. He further argues
that there was not a sufficiently developed and/or feasible plan for him to
purchase the remaining six kilograms and those kilograms should accordingly be
disregarded. In the language of the 2004 version of Application Note 12,
Rodriguez argues he has established that he “did not intend . . . to purchase, or
was not reasonably capable of . . . purchasing” the remaining six kilos.
In rejecting this same argument, the district court found as follow s:
[I]n a reverse sting, the agreed upon quantity of the controlled
substance w ould more accurately reflect the scale of the offense
because the amount actually delivered is controlled by the
government, not by the defendant. In this case the defendant
negotiated with government agents to purchase ten kilograms of
cocaine, according to the testimony provided by Agent Reyes. The
defendants purchased a reduced quantity of cocaine due to a cash
problem. However, M r. Rodriguez and Agent Reyes – M r.
Rodriguez told Agent Reyes that they could go back to Dallas, Texas,
sell the cocaine and return with the proceeds to purchase an
additional six kilograms of cocaine. The defendant’s lack of
sufficient money to complete the transaction does not limit M r.
Rodriguez’s liability for the remainder of the drug quantity agreed to
purchase. The defendant in this case clearly had a plan to obtain
-7-
additional funds which would have sufficiently allowed for the
purchase of the additional six kilograms of cocaine.
Tr. of Sentencing Hr’g at 44, R. Vol. 3.
W e agree with the district court that there was sufficient evidence
supporting the conclusion that Rodriguez agreed to purchase ten kilos, and that
the full amount was properly attributed to him. 2 Indeed, Rodriguez had a specific
plan to promptly convert proceeds from the sale of the four kilograms of cocaine
into funds with which to buy the remaining six kilograms. See United States v.
Perez de Dios, 237 F.3d 1192, 1195 (10th Cir. 2001) (“‘A drug buyer who lacks
the full purchase price may nonetheless intend to obtain the negotiated quantity
by force or deception, or on a credit or consignment basis.’”) (quoting Hardwell,
80 F.3d at 1497). The district court’s finding that he had conspired to obtain ten
kilograms was not clearly erroneous.
C ON CLU SIO N
For the foregoing reasons, we AFFIRM the sentence imposed below.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
2
W e further agree with the probation office that the result would be the
same under either the 2003 or the 2004 guidelines.
-8-