United States v. Victor Bermudez-Chavez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 04 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-10152
Plaintiff - Appellee, D.C. No. 4:09-cr-00905-DCB-
JJM-2
v.
VICTOR MANUEL BERMUDEZ- MEMORANDUM*
CHAVEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted March 14, 2012
Berkeley, California
Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.
Victor Manuel Bermudez-Chavez appeals his jury conviction and sentence
for conspiracy to possess with intent to distribute 100 kilograms of cocaine and
possession with intent to distribute one kilogram of cocaine. Because the parties
are familiar with the factual and procedural history of this case, we repeat only
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
those facts necessary to resolve the issues raised on appeal. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
Bermudez-Chavez raises a claim of sentencing entrapment, citing U.S.S.G.
§ 2D1.1 Application Note 12 (“Note 12”). Although Bermudez-Chavez argued the
substance of Note 12 before the district court—i.e., that the district court should
consider his inability to procure 100 kilograms of cocaine when it determined the
weight of cocaine for sentencing purposes—he failed to cite to or object under
Note 12. The government claims that Bermudez-Chavez’s arguments were
insufficient to preserve this claim. Nonetheless, even if it is forfeited, we review
for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732
(1993) (plain error standard permits an appellate court to reverse if there was (a) an
error, (b) that was plain, and (c) that affected substantial rights).
“Sentencing entrapment or ‘sentence factor manipulation’ occurs when ‘a
defendant, although predisposed to commit a minor or lesser offense, is entrapped
in[to] committing a greater offense subject to greater punishment.” United States
v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). When sentencing entrapment
occurs, “the amount of drugs used in calculating the defendant’s sentence should
be reduced by the amount that ‘flows from the entrapment.’” United States v.
Briggs, 623 F.3d 724, 729 (9th Cir. 2010). Under Note 12, if a defendant makes a
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proper showing that he “was not reasonably capable of providing . . . the
agreed-upon quantity,” the court must exclude the quantity that he establishes he
was not reasonably capable of providing. U.S.S.G. § 2D1.1 App. n.12. Finally,
under our circuit precedent, “Application Notes 12 and 17 [now incorporated into
Note 12] clearly require the district court to determine whether sentencing
entrapment has occurred. Under Note 12, the district court ‘shall exclude’ from the
calculation the amount of drugs which flow from sentencing entrapment.” United
States v. Naranjo, 52 F.3d 245, 250 (9th Cir. 1995).
The district court rejected Bermudez-Chavez’s argument relating to
sentencing entrapment because it concluded that any relief would require the court
to invalidate the jury’s verdict. That conclusion was erroneous, at odds with our
precedent, and affected Bermudez-Chavez’s substantial rights. The ultimate
determination of sentencing entrapment is within the province of the sentencing
judge, and the mere fact of conviction does not trump this obligation. Under
Naranjo, Bermudez-Chavez’s inability to produce 100 kilograms of
cocaine—instead producing two kilograms of cocaine and fifty-nine kilograms of
building plaster—raises a significant issue. We vacate Bermudez-Chavez’s
sentence and remand for resentencing. We take no position on whether relief
should be granted, and, on remand, Bermudez-Chavez has the burden of proving
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sentencing entrapment by a preponderance of the evidence. Naranjo, 52 F.3d at
250.
Bermudez-Chavez’s remaining claims are without merit. Because a
conspiracy to possess a controlled substance can be proven without any seizure of
the controlled substance at issue, see, e.g., United States v. Desimone, 119 F.3d
217, 223 (2d Cir. 1997), the district court did not err in denying Bermudez-
Chavez’s motion to dismiss the conspiracy count based on the argument that the
bulk of the substance seized was building plaster made to look like cocaine. To
prove the existence of a conspiracy under 21 U.S.C. § 846, the government need
only prove: “(1) an agreement to accomplish an illegal objective, and (2) the intent
to commit the underlying offense.” United States v. Herrera-Gonzalez, 263 F.3d
1092, 1095 (9th Cir. 2001).
We also find no error in the district court’s failure to compel disclosure of
the confidential informant’s immigration file (“A file”). The district court ordered
the government to produce any exculpatory or impeachment material from the A
file, and Brady v. Maryland, 373 U.S. 83 (1963), does not impose an obligation to
necessarily produce the entire file. In any event, after the district court’s order,
Bermudez-Chavez did not renew his request or lodge an objection as to what had
been produced, and he does not now identify any such evidence that was withheld.
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The district court did not err in admitting testimony, under a language
conduit theory, as to Bermudez-Chavez’s statements that were translated by the
confidential informant. Although the informant worked for the government, he
was a fluent Spanish speaker and had minimal motive to mislead since his
compensation depended on successful negotiations, and the parties’ subsequent
actions corroborate the statements as translated. See United States v. Nazemian,
948 F.2d 522, 527 (9th Cir. 1991) (articulating the test for determining whether
translated statements should be considered statements of the speaker).
Finally, sufficient evidence supported Bermudez-Chavez’s conviction for
conspiracy to possess 100 kilograms of cocaine. Although Bermudez-Chavez
argues that there was no firm agreement between him and the undercover agent, a
drug conspiracy in violation of 21 U.S.C. § 846 only requires an agreement
amongst the co-conspirators. See Herrera-Gonzalez, 263 F.3d at 1095. The
parties discussed the sale of cocaine, agreed to a price, delivered a sample of the
promised product, and discussed the details for the final delivery. “Our decisions
. . . have held that proof of a conspiracy sufficient where the actual buyer and seller
never agreed to such terms [as price, quantity, and time, place, and manner of
delivery].” United States v. Sharif, 817 F.2d 1375, 1378 (9th Cir. 1987) (citation
omitted).
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REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
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