United States v. B. Mercedez-Gonzalez ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4633
BERNARDO MERCEDEZ-GONZALEZ,
a/k/a Jorge Pizarro,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
James A. Beaty, Jr., District Judge.
(CR-96-258)
Submitted: March 16, 1999
Decided: April 9, 1999
Before MICHAEL and KING, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Bernardo Mercedez-Gonzalez appeals the 235-month sentence he
received after he pled guilty to distribution of crack cocaine, 21
U.S.C. § 841(a) (1994). He contends that eight ounces of crack he
negotiated to sell an undercover agent should not have been used to
calculate his offense level under U.S. Sentencing Guidelines Manual
§ 2D1.1 (1995). We affirm the sentence.
Mercedez-Gonzalez (using the name Jorge Pizarro) was present in
a fortified apartment* in October 1996 when state undercover agent
Kevin Canty bought 25.2 grams of crack from Poppy, a Hispanic
male. On October 31, 1996, when Canty tried to buy crack from
Poppy again, Mercedez-Gonzalez told him that Poppy had gone to
Puerto Rico. However, Mercedez-Gonzalez sold Agent Canty two and
a half ounces (65.8 grams) of crack. Canty reduced his purchase from
three ounces to two and a half ounces after they dickered about the
price. Canty estimated that Mercedez-Gonzalez had"a couple more
ounces" in the bag from which he weighed out three ounces initially.
On November 12, 1996, Canty and an agent from the Drug
Enforcement Administration (DEA) went to the apartment and
Mercedez-Gonzalez agreed to sell Canty eight ounces (226.8 grams)
of crack for $8600, a reduced price. They agreed to meet the follow-
ing week after Mercedez-Gonzalez made a trip to New York. How-
ever, Canty and the DEA agent did not contact Mercedez-Gonzalez
until December 5, 1996. On that day, when Canty told Mercedez
Gonzalez that he was ready for the eight-ounce purchase, Mercedez-
Gonzalez told Canty he did not sell drugs. A search of the apartment
where the prior sales had taken place resulted in the seizure of crack
cocaine residue, scales, and some money, including marked police
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*There were steel bars across the door on the inside.
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funds. Mercedez-Gonzalez was arrested and later pled guilty to crack
distribution.
At his sentencing, Mercedez-Gonzalez objected to the inclusion of
the eight ounces in the offense level calculation. However, the district
court found that Mercedez-Gonzalez was capable of supplying the
agent with eight ounces of crack and intended to do so when he made
the agreement, even though the sale never took place.
We review the district court's factual determination under the
clearly erroneous standard. See United States v. Williams, 152 F.3d
294, 301 (4th Cir. 1998). Here, we cannot find that the district court
clearly erred in making its determination. Canty testified about his
dealings with Mercedez-Gonzalez, but Mercedez-Gonzalez provided
no evidence of his inability or unwillingness to sell eight ounces of
crack beyond the fact that the eight-ounce sale did not take place.
Accordingly, we affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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