United States v. Marco A. Lopez ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3597
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Marco A. Lopez, *
*
Appellant. *
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Submitted: April 14, 1997
Filed: July 7, 1997
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Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.
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WOLLMAN, Circuit Judge.
Marco A. Lopez appeals from the sentence imposed by the district court1
following his plea of guilty to one count of possessing cocaine with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). We affirm.
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
I.
In December of 1995, Lopez came under suspicion for trafficking in cocaine and
methamphetamine. Working with a confidential informant (CI), Iowa Department of
Narcotics Enforcement (DNE) officer Ronald Deist, Jr. purchased cocaine from Lopez
three times in December of 1995: one ounce (27.03 grams) on December 7, one ounce
(25.18 grams) on December 19, and another two ounces (53.59 grams) on December
21. During a conversation on December 15, 1995, the CI requested one ounce of
methamphetamine or, if no methamphetamine was available, one ounce of cocaine.
Lopez informed the CI that he had sold his methamphetamine and had only cocaine for
sale.
On January 8, 1996, Deist met with Lopez and inquired as to the possibility of
purchasing larger quantities of methamphetamine from Lopez. Lopez initially
responded that he could sell three-fourths of a pound of methamphetamine. The
following day, Lopez informed Deist that his source had sold that methamphetamine,
but that he had another source from whom he could procure “yellow” or “red”
methamphetamine. Deist requested twelve ounces of yellow methamphetamine. Lopez
instructed Deist to meet him later that evening for delivery of the yellow
methamphetamine. Lopez failed to appear at the designated time, however, fearing that
law enforcement officers were observing him.
A second confidential informant, Carlos Rush, advised DNE that he previously
had purchased a large amount of cocaine and methamphetamine from Lopez.
Cooperating with DNE, Rush met with Lopez on January 30 and informed him that he
desired to purchase nine ounces each of cocaine and methamphetamine. Lopez
informed Rush that he could probably provide one pound of methamphetamine and six
ounces of cocaine. He instructed Rush to meet him the next day so that Lopez could
introduce Rush to his source, who, Lopez assured, could obtain as many pounds of
methamphetamine as Rush desired.
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On January 31, Lopez escorted Rush to a bar, where Rush met with Lopez’s
source, Jorge Pimentel. Rush informed Pimentel that he wanted to purchase one pound
of methamphetamine and nine ounces of cocaine. Pimentel told Rush that he was out
of cocaine but could sell five pounds of methamphetamine. Rush stated that he was
interested in two pounds of methamphetamine but that he had to get money together.
Pimentel instructed Rush to call the following day.
Rush and Pimentel met the next day, and Pimentel stated that he would sell Rush
any amount of methamphetamine for $13,000 per pound. Rush agreed to purchase
three pounds of methamphetamine. On February 6, Rush and Pimentel met in a hotel
room to conduct the transaction. Pimentel informed Rush that he had one pound of
methamphetamine and would get the two additional pounds in forty-five minutes.
Officers who had been waiting in the adjoining room arrested Pimentel after the
transaction for the first pound (279.44 grams) was completed. A subsequent laboratory
analysis revealed that the substance Pimentel had attempted to sell was amphetamine
rather than methamphetamine.
On March 7, Deist, who was following Lopez to Lopez’s house to complete a
cocaine transaction, decided to arrest Lopez and forego the transaction after Lopez
exhibited erratic behavior. On pat-down, Deist discovered five ounces (139.22 grams)
of cocaine in Lopez’s pocket.
Lopez was charged with one count of conspiracy to distribute and possess with
intent to distribute methamphetamine and cocaine, three counts of distributing cocaine,
one count of aiding and abetting the distribution of amphetamine purported to be
methamphetamine, and one count of possession with the intent to distribute cocaine.
Lopez pled guilty to possession with the intent to distribute cocaine, with the other
counts being dismissed.
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The presentence report (PSR) attributed to Lopez 245.02 grams of cocaine and
837 grams of methamphetamine (279 grams of purported methamphetamine that
Pimentel delivered, multiplied by three for the three pounds negotiated). At sentencing,
the district court adopted the PSR calculation of a base offense level of 30. The court
then applied a two-level reduction under the “safety valve,” U.S.S.G. § 5C1.2, a two-
level reduction for being a minor participant in the methamphetamine transaction, and
a three-level reduction for acceptance of responsibility, resulting in an offense level of
23. The district court sentenced Lopez, a first-time offender, to 46 months’
imprisonment, the lowest sentence within the applicable range, to be followed by a
three-year period of supervised release.
II.
Lopez’s sole claim on appeal is that the district court erred in using the
methamphetamine guideline in calculating the drugs attributable to him as a result of
the transaction between Pimentel and Rush. Lopez does not contest the district court’s
conclusions that the agreement was for methamphetamine or that Lopez’s act of aiding
and abetting the agreement was relevant conduct. He argues, however, that his
sentence should be based on amphetamine, the substance actually distributed. The
question whether the district court properly based Lopez’s sentence on intended
conduct rather than actual conduct involves application of the Sentencing Guidelines
to the facts, and we thus review the district court’s decision de novo. See United States
v. Wilson, 49 F.3d 406, 409 (8th Cir.), cert. denied, 116 S. Ct. 384 (1995).
The Sentencing Guidelines call for the inclusion of “types and quantities of
drugs not specified in the count of conviction,” U.S.S.G. § 2D1.1, comment n.12, that
were “part of the same course of conduct or common scheme or plan as the offense of
conviction.” U.S.S.G. § 1B1.3(a)(2). Where a defendant negotiated for or attempted
to receive a specific substance but that substance was, unanticipated by and
unbeknownst to the defendant, replaced with a different substance, the defendant’s
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culpable conduct is most accurately evaluated by ascribing to the defendant the intended
rather than the unintended substance. See United States v. Steward, 16 F.3d 317, 321 (9th
Cir. 1994) (sentence following attempt conviction was correctly based on methamphetamine,
even though substance defendant sold as methamphetamine was actually ephedrine he had
been duped into purchasing earlier that day).2 The negotiation itself constitutes the
defendant’s relevant conduct, and “[t]he nature and seriousness of [the defendant’s] conduct
is the same no matter” what substance was actually delivered. United States v. White, 888
F.2d 490, 498 (7th Cir. 1989) (sentence was correctly based on full amount of original
cocaine shipment even though drug enforcement officers replaced all but 1.88 grams of
cocaine with sugar); see United States v. Franklin, 926 F.2d 734, 736-37 (8th Cir. 1991)
(following White and holding that defendant’s sentence was properly based on original
amount of cocaine in parcel rather than amount defendant actually received after postal
inspectors replaced most of the cocaine with flour).
Steward, White, and Franklin foreclose Lopez’s argument that his sentence should be
based on amphetamine. The seriousness of Lopez’s conduct is most accurately accounted
for by basing his offense level on methamphetamine, for methamphetamine, not
amphetamine, was the drug involved in Lopez’s scheme or plan. There is no doubt, and
Lopez concedes, that he intended to aid and abet a transaction involving methamphetamine.3
The agreement between Rush and Pimentel was for the
2
The fact that Lopez was not convicted of attempt or conspiracy charge does not
alter our analysis for sentencing purposes. Negotiations constitute relevant conduct
regardless of whether the defendant’s underlying conviction was for attempt or
conspiracy. See United States v. Williams, 994 F.2d 1287, 1292 (8th Cir. 1993). “The
Guidelines treat success and failure, conviction and no conviction, alike in drug cases,
so long as the amounts are ascertainable.” United States v. White, 888 F.2d 490, 499
(7th Cir. 1989).
3
This case is thus unlike United States v. Owens, 904 F.2d 411 (8th Cir. 1990).
In Owens, the jury instructions referred to “methamphetamine/amphetamine” in the
alternative, and the evidence at trial as to which substance the defendant distributed
conflicted. We held that, because the substance for which the defendant was
responsible was unclear, the district court improperly based the defendant’s sentence
on methamphetamine. Because Lopez concedes he intended to distribute
methamphetamine, the uncertainty that gave us pause in Owens is not present here.
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delivery of methamphetamine, and Pimentel represented the substance as
methamphetamine. The fact that the substance Pimentel delivered was amphetamine
and not methamphetamine was merely fortuitous. “The seriousness of [Lopez’s]
unlawful conduct is . . . no[t] decreased by what happened to be in the package.”
United States v. Davern, 970 F.2d 1490, 1495 (6th Cir. 1992) (en banc) (following
White and holding that the sentence should be based on the 500 grams of cocaine
defendant intended to receive even though defendant actually received only 85 grams
of cocaine). In addition, Lopez had previously sold methamphetamine to Rush and had
attempted several times to arrange methamphetamine transactions with Deist.
Amphetamine was never part of Lopez’s scheme or plan. The district court therefore
properly concluded that Lopez’s sentence should be based on the methamphetamine
guideline.
The sentence is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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