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Table of Contents

200 – Offense Conduct, Generally (Chapter 2)

200 – Offense Conduct, Generally (Chapter 2)
  • 210 Homicide, Assault (§2A1 -2)
  • 215 Sexual Abuse, Kidnapping, Air Piracy, Threatening Communications (§2A3 -6)
  • 218 Fraud
  • 220 Theft, Embezzlement, Burglary (§2B1 -2)
  • 224 Robbery, Extortion (§2B3)
  • 226 Commercial Bribery, Counterfeiting, Forgery, VIN Nos. (§2B4 -6)
  • 230 Public Officials, Offenses (§2C)
  • 240 Drug Offenses, Generally (§2D)
  • 290 RICO, Loan Sharking, Gambling (§2E)
  • 300 Fraud (§2F)
  • 310 Sexual Exploitation of Minors (§2G)
  • 315 Civil Rights, Political Offenses (§2H)
  • 320 Contempt, Obstruction, Perjury, Impersonation, Bail Jumping (§2J)
  • 345 Espionage, Export Controls (§2M)
  • 348 Food, Drugs, Odometers (§2N)
  • 350 Escape, Prison Offenses (§2P)
  • 355 Environmental Offenses (§2Q)
  • 360 Money Laundering (§2S)
  • 370 Tax, Customs Offenses (§2T)
  • 380 Conspiracy/Aiding/Attempt (§2X)
  • 390 “Analogies” Where No Guideline Exists (§2X5.1)
  • 340 Immigration Offenses (§2L)
  • 330 Firearms, Explosives, Arson (§2K)

Back to main table of contents

§265 Drug Relevant Conduct, Amounts Under Negotiation

First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Miscellaneous

1st Circuit says defendant did not show inability to buy agreed-upon cocaine. (265) Defendant was convict­ed of drug and gun charges that arose from a reverse sting operation orchestrated by DEA agents. He argued that the sentencing court failed to consider Note 12 to § 2D1.1. Note 12 states that in a reverse sting, the agreed-upon quantity of drugs usually should be used, unless the defendant establishes that he was not reasonably capable of providing or purchasing that quantity. Defendant argued that his conspir­ators’ inability to pay for 90 kilograms of cocaine up front showed that they were not “reasonably capable to purchasing” such a large amount of drugs. The First Circuit found no error. Although the conspirators were only able to come up with an initial $59,000 to receive the first 30-kilo bale, they were to use the profits from the sale (that same day) of the first bale to fund the purchase of the second bale, which they would then sell to purchase a third bale. The conspirators were so confident that they could pay the purchase price of the drugs that they were willing to bet the life of one of the conspirators on it. U.S. v. Rodriguez, 735 F.3d 1 (1st Cir. 2013).

 

1st Circuit finds sale of drugs on credit did not show price was “substantially below the market value.” (265) Defendant was convicted of drug and gun charges that arose from a reverse sting operation orchestrated by DEA agents. Note 14 to § 2D1.1 states that in a reverse sting, if the government set a price for the drugs that was “substantially below the market value” of the drugs, then a downward departure might be warranted. Defendant argued that the government, by agreeing to transfer control of the drugs to defendant substantially on credit, agreed to sell the drugs at a price “substantially below the market value.” The First Circuit disagreed. The guarantee for payment was Gonzalez, one of the conspirators, who agreed to stay at the seller’s house until the payment for the drugs was delivered. Although there may be instances in which a credit arrangement could implicate Note 14, the human collateral arrangement here under­mined any argument that Note 14 applied. Further, defendant offer­ed no evidence suggesting that such credit arrangements are uncommon in the drug trafficking trade, or that the terms of this credit arrangement were more generous than in the usual case. U.S. v. Rodriguez, 735 F.3d 1 (1st Cir. 2013).

 

1st Circuit holds defendant accountable for 20 to 50 kilograms where conspiracy wanted to import 110. (265) The district court attributed 20 to 50 kilograms of cocaine to defendant. Although defendant asserted that this figure lacked any evidentiary foundation, the jury found that defendant was involved in the charged conspiracy, and the uncontradicted evidence was that the conspirators aspired to import 110 kilograms of cocaine into the United States. Defendant did not offer any evidence that the conspirators did not intend, or were unable to procure and arrange for, the importation of this amount of drugs. The only credible argument against holding defendant responsible for 20-50 kilograms was that the quantity should have been considerably higher. Accordingly, the First Circuit found any error was harmless. U.S. v. Barnes, 244 F.3d 172 (1st Cir. 2001).

 

1st Circuit holds reverse sting defendant accountable for drugs he intended to buy. (265) Defendant agreed to buy a kilogram of cocaine from an undercover agent for $18,000. He was to place a down payment of $5,000, with the remainder secured by his mobile home. He challenged the district court’s use of the entire kilogram for sentencing purposes, claiming he lacked the resources to buy the agreed-upon quantity. He argued that he should be treated like a seller who was not reasonably capable of providing an agreed-upon quantity of drug, and court should have excluded from its calculations the amount of drugs he was not reasonably capable of pur­chasing. See Note 12 to § 2D1.1. The First Circuit ruled that defendant was properly held accountable for the drugs he agreed and intended to purchase. Note 12 states that “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.” The last sentence of Note 12, relied upon by defendant, deals with a defendant selling drugs, and did not apply. U.S. v. Brassard, 212 F.3d 54 (1st Cir. 2000).

 

1st Circuit bases sentence on amount intended to be sold rather than small sample actually sold. (265) Be­fore a May 14, 1996 meeting, defendant advised Aguiar that Madsen wanted to purchase a kilogram of cocaine. At the meeting, Madsen surprised both Aguiar and defendant by insisting on purchasing only a sample “first just to try it out,” assuring Aguiar that if “the stuff is really good, I’ll let you know soon.” No later sale was made. Nonetheless, the First Circuit found that defendant was properly held accountable for one kilogram of cocaine based on his effort to facilitate the attempted sale of a kilogram. Note 12 does not say that in all cases when is delivery is smaller than the amount agreed upon, the amount delivered should govern. The amount intended to be sold ordinarily governs “unless” the judge concludes that the lesser amount delivered “more accurately” reflects the scale of the offense. In the present case, defendant conspired with Aguiar to sell a kilogram. The sale failed only because Madsen declined to accept the full amount. Therefore, the district court could have permissibly found that the kilo intended to be sold and not the ounce actually delivered “more accurately reflect[ed] the scale of the offense.” U.S. v. Gomes, 177 F.3d 76 (1st Cir. 1999).

 

1st Circuit holds defendant accountable for quantity he admitted in plea agreement and at plea hearing. (265) Defendant employed a man who negotiated to supply undercover agents with ten kilograms of cocaine. The employee then transmitted a message to defendant’s beeper stating that “ten jet skis” should be prepared. The employee later emerged from defendant’s business carrying a box containing one kilogram of cocaine. Shortly thereafter, defendant was arrested in possession of the beeper to which the employee had sent the “ten jet skis” message. Defendant challenged the finding that he was accountable for ten kilograms of cocaine. The First Circuit found no clear error, since defendant admitted both in the plea agreement and during the Rule 11 hearing that he was responsible for the ten kilograms of cocaine as charged in the indictment. The district court was entitled to credit these sworn admissions. Defendant’s claim that he did not intend to produce or was not capable of producing ten kilograms failed because there was no attempt to demonstrate that he was not reasonably capable of delivering the amount agreed upon with the undercover agents. U.S. v. Marrero-Rivera, 124 F.3d 342 (1st Cir. 1997).

 

1st Circuit says defendant’s concession of intent was sufficient to hold him accountable for negotiated quantity. (265) Defendant was involved in a conspiracy to sell five kilograms of cocaine to an undercover agent. The parties agreed to split the transaction into two separate sales. The conspirators were arrested after providing two kilograms to the agent, and the remaining three kilograms were never discover­ed. Defendant conceded his intent to produce five kilograms, but contended that there was insufficient evidence that he was reasonably capable of producing the remaining three kilograms. The First Circuit found it reasonable to conclude that defendant had the capability to consummate the deal, particularly when the two stages were to take place in close succession. Moreover, defendant’s conces­sion of intent was sufficient under U.S. v. Pion, 25 F.3d 18 (1st Cir. 1994), to hold him accountable for the whole negotiated amount. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).

 

1st Circuit says defendant’s concession of intent was sufficient to hold him accountable for negotiated quantity. (265) Defendant was involved in a conspiracy to sell five kilograms of cocaine to an undercover agent. The parties agreed to split the transaction into two separate sales. The conspirators were arrested after providing two kilograms to the agent, and the remaining three kilograms were never discover­ed. Defendant conceded his intent to produce five kilograms, but contended that there was insufficient evidence that he was reasonably capable of producing the remaining three kilograms. The First Circuit found it reasonable to conclude that defendant had the capability to consummate the deal, particularly when the two stages were to take place in close succession. Moreover, defendant’s conces­sion of intent was sufficient under U.S. v. Pion, 25 F.3d 18 (1st Cir. 1994), to hold him accountable for the whole negotiated amount. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).

 

1st Circuit concludes talk about 150‑pound marijuana lot was more than “puf­fing.” (265) Defendant sold 48 pounds of marijuana to an undercover agent, made plans to deliver an additional 30 pounds the next day, and discussed selling the agent “about” 150 or 200 pounds from a later shipment. The First Circuit included the negotiated 150‑pound lot in defendant’s sentencing calculation, despite his claim that the lot never existed and he was merely “puffing.” Although the 150‑pound lot had not been discuss­ed before the meeting, the district court found that defendant intended to produce that marijuana and was reasonably capable of doing so. The district court had the benefit of a videotape of the meeting. The discussion included details such as the identi­fication of the shipment’s source, the capacity of the vehicle to transport the marijuana, and the number of days for delivery. U.S. v. Lindia, 82 F.3d 1154 (1st Cir. 1996), abrogation on other grounds recognized by U.S. v. Westmoreland, 240 F.3d 618 (7th Cir. 2001).

 

1st Circuit concludes talk about 150‑pound marijuana lot was more than “puf­fing.” (265) Defendant sold 48 pounds of marijuana to an undercover agent, made plans to deliver an additional 30 pounds the next day, and discussed selling the agent “about” 150 or 200 pounds from a later shipment. The First Circuit included the negotiated 150‑pound lot in defendant’s sentencing calculation, despite his claim that the lot never existed and he was merely “puffing.” Although the 150‑pound lot had not been discuss­ed before the meeting, the district court found that defendant intended to produce that marijuana and was reasonably capable of doing so. The district court had the benefit of a videotape of the meeting. The discussion included details such as the identi­fication of the shipment’s source, the capacity of the vehicle to transport the marijuana, and the number of days for delivery. U.S. v. Lindia, 82 F.3d 1154 (1st Cir. 1996), abrogation on other grounds recognized by U.S. v. Westmoreland, 240 F.3d 618 (7th Cir. 2001).

 

1st Circuit says negotiated amount applies unless defendant lacked intent and capability to deliver. (265) The district court held defendant accountable for 250 pounds of marijuana he agreed to sell an associate, even though only 40 pounds changed hands during the controlled buy and less than three pounds were found in defendant’s condominium. The First Circuit held that under note 12 to § 2D1.1, a defendant is accountable for the amount he negotiates to sell, unless the sentencing judge finds that he lacked the intent and capability to deliver. Several cooperating co‑conspirators testified that defendant agreed to sell 250 pounds to the associate. The purchaser testified that defendant agreed to sell 250 pounds in 50 pound increments. Others corroborated this scheme. The fact that the DEA did not find the remaining marijuana at defendant’s condo did not prove that defendant was unable or did not intend to deliver the additional drugs. Obviously, he may have arranged to have the drugs kept elsewhere. U.S. v. Wihbey, 75 F.3d 761 (1st Cir. 1996).

 

1st Circuit includes weight of substances that contained no detectable amounts of P2P. (265) Defendant manufactured P2P in a laboratory. Because he used an alternative manufacturing method designed to avoid the odor associated with the manufacture of P2P, seven of the 14 mixtures defendant delivered to an undercover agent did not contain a detectable amount of P2P. The First Circuit held that the district court properly included the substances that did not contain any P2P in its sentencing calculation. Defendant’s conspiracy encompassed all 14 deliveries, including the seven that tested negative. Each delivery, regardless of its actual P2P content, was an intended part of the charged scheme. U.S. v. Campbell, 61 F.3d 976 (1st Cir. 1995).

 

1st Circuit holds that agreement to sell crack nine days later was part of same criminal conduct as first sale. (265) On January 15, defendant sold 85.3 grams of crack and 54.4 grams of cocaine powder to an undercover agent. Defendant then agreed to sell the agent an additional half-kilogram of crack, to be delivered on January 24. He was arrested when he appeared at the designated delivery site, carrying three plastic bags containing a white powdery substance later determined to be sugar. Defendant pled guilty to the crack sale on January 15, but the district court also held him accountable for the cocaine powder sold January 15 and the crack promised for delivery on January 24. The First Circuit affirmed, agreeing that the delivery of crack and powdered cocaine on January 15 and the agreement to sell the additional crack on January 24 were all part of the same course of criminal activity. The fact that the government seized sugar, rather than crack, on January 24 did not exclude the agreed quantity from the sentencing calculation. An amount of drugs that a defendant negotiates to sell may be considered as relevant conduct even if the drugs are never produced. U.S. v. Graciani, 61 F.3d 70 (1st Cir. 1995).

 

1st Circuit remands to new judge to determine intent and ability to produce negotiated quantity. (265) Defendant negotiated to sell five kilograms of cocaine to an undercover agent. He was arrested after delivering three of the five kilograms. The district court only held him accountable for three kilograms at sentencing. The Second Circuit remanded for a new judge to conduct a new sentencing hearing to determine whether defendant had the intent and ability to produce the additional two kilograms. The sentencing judge’s findings were contradictory, and created the impression that he did not hold defendant accountable for the additional two kilograms because it conflicted with the judge’s personal notions of fairness. U.S. v. Muniz, 49 F.3d 36 (1st Cir. 1995).

 

1st Circuit applies mandatory minimum despite inability to produce negotiated amount. (265) The government argued that defendant was responsible under § 2D1.1 for three kilograms of cocaine he negotiated to supply in July. Under note 12, the district court found defendant was not reasonably capable of producing the three kilograms. However, it found that the object of conspiracy was to distribute six kilograms of cocaine, including the three kilograms defendant agreed to supply in July. Thus, the court imposed the mandatory minimum 10-year sentence under 21 U.S.C. § 841(b)(1)(A)(ii) for conspiring to possess and distribute five or more kilograms of cocaine. The 1st Circuit held that defendant’s inability to produce the negotiated quantity did not bar imposition of the mandatory minimum sentence. Although defendant was not reasonably capable of producing the additional three kilograms, he was a member of a conspiracy whose object was to distribute more than six kilograms, and he specifically intended to further the conspiratorial objective. U.S. v. Pion, 25 F.3d 18 (1st Cir 1994).

 

1st Circuit relies on agent’s testimony to determine defendant’s intent to deliver negotiated drugs. (265) Defendant delivered 11 kilograms of cocaine to an undercover agent.  The 1st Circuit held defendant responsible for an additional 10 kilograms he negotiated to sell the agent.  It affirmed the district court’s finding that he had both the intent and the ability to produce ten additional kilograms of cocaine.  Although the tape of the defendant’s conversation with the agent did not itself reveal the existence of an agreement to provide additional drugs, the agent testified that defendant had agreed to provide 10 kilograms on a weekly basis.  Moreover, the district court could conclude that defendant had the ability to produce the 10 additional kilograms next week, since he had just delivered 11 kilograms this week.  U.S. v. Legarda, 17 F.3d 496 (1st Cir. 1994).

 

1st Circuit upholds quantity determination as within defendants’ capacity. (265) De­fendants agreed to sell an undercover agent a kilogram of co­caine, but then did not show up to complete the transaction.  They were ulti­mately charged with con­spiracy to distribute cocaine even though the transac­tion was never completed, and the district court cal­culated their sentences by using the one kilo­gram amount they had agreed to provide.  The 1st Circuit found the evidence sufficient to sup­port the conclu­sion that defendants had the intent and capacity to provide the kilo­gram.  Defendants were knowledge­able about the drug trade, and the efforts by one to obtain weapons showed real connections to the criminal world.  The other defendant had previously been arrested for selling cocaine, albeit in lesser quantities, demonstrating ac­cess to the drug.  U.S. v. Argencourt, 996 F.2d 1300 (1st Cir. 1993).

 

1st Circuit affirms that two kilograms were under negotiation. (265) Defen­dants argued it was error to find that they attempted to purchase two kilo­grams of cocaine from a government in­formant, since $20,000 was the agreed kilogram price and one defendant brought only $29,850 to the sale meet­ing.  The 1st Circuit  affirmed that de­fendants were responsible for two kilo­grams.  The record was clear that de­fendants would pur­chase two kilograms for $30,000 up front and $10,000 later.  On the date of the sale, one de­fendant told the informant that he had $30,000 which his associate would deliver.  When the other defen­dant went to pick up the cocaine, she told the infor­mant that there was $30,000 in the bag.  U.S. v. Figueroa, 976 F.2d 1446 (1st Cir. 1992).

 

1st Circuit affirms that negotiated quantity was five kilograms. (265) An undercover agent sought to purchase five kilograms of cocaine from defendant’s co-conspirator.  The co-conspirator initially stated that he had ac­cess to five kilograms but would not release them all at once.  He then of­fered to sell the agent two kilograms.  When the agent re­fused, the co-conspirator set up a meeting with the agent.  At this meeting, the co-con­spirator stated that his supplier was coming with five kilograms.  Defendant attended a subsequent meeting, after which the agents were shown one kilogram.  When asked where the other four kilograms were, the agents were told they would not be available until the next day.  The 1st Circuit affirmed that the object of the conspiracy was five kilo­grams of cocaine, and that defendant prop­erly re­ceived a base offense level of 32 under section 2D1.1 and 2D1.4.  U.S. v. McCarthy, 961 F.2d 972 (1st Cir. 1992).

 

1st Circuit affirms that defendant expected to pur­chase marijuana under negotiation. (265) Defen­dant chal­lenged his sentence which was based on his at­tempted purchase of one ton, rather than half a ton, of mari­juana, claiming he could not afford to pur­chase the full ton and did not actually intend to pur­chase that amount.  The 1st Circuit af­firmed the sen­tence, rul­ing that defendant ex­pected to be able to purchase the full ton of marijuana.  De­fendant stated at the start of nego­tiations that he wished to purchase a full ton.  Although he subsequently indicated that he could only af­ford to pay for the first half ton, defen­dant later renewed ne­gotiations for the second half.  He called the seller and spoke specifically about tak­ing deliv­ery of the second half ton several days af­ter his receipt of the first half ton.  The district court could reasonably be­lieve that de­fendant ex­pected he would be able to pay for the second half ton with money realized from the resale of the first half ton or other resources.  U.S. v. Ro­tolo, 950 F.2d 70 (1st Cir. 1991).

 

1st Circuit affirms inclusion of cocaine de­fendant promised to supply undercover agents. (265) Defen­dant contended that the cocaine involved in his con­spiracy was two to three kilograms, rather than the 15 to 50 kilograms used by the district court.  The 1st Cir­cuit held that the cal­culation was sup­ported by evidence that defendant promised to supply undercover agents five to 10 kilo­grams of cocaine at 15-day intervals.  De­fendant contended that the court should have excluded the quantities he negotiated to sup­ply because he did not intend to produce and was not reasonably capable of producing those quantities.  The dis­trict court found, however, that defendant “was not just puffing” and that he was able to produce the promised quantities.  U.S. v. Moreno, 947 F.2d 7 (1st Cir. 1991).

 

1st Circuit affirms that defendant was capable of pro­ducing one kilogram. (265) Defendant contended it was improper to hold him respon­sible for the kilogram of cocaine he agreed to sell to undercover agents since the government (a) never produced the cocaine, and (b) never proved that he intended and was capable of pro­ducing the kilogram.  The 1st Circuit re­jected both ar­guments.  First, there is no re­quirement that drugs be produced as evidence in order to be considered at sen­tencing.  Sec­ond, the district court could have reasonably concluded that defendant was capable of pro­ducing the kilo­gram.  Defendant agreed to sell the kilogram.  De­fendant also had demon­strated his ability to supply fairly substantial quantities of cocaine, shown by his twice car­rying one-eighth of a kilogram to meetings with the un­dercover agent.  U.S. v. Estrada-Molina, 931 F.2d 964 (1st Cir. 1991).

 

1st Circuit upholds calculation of offense level based upon kilogram that defendant agreed to sell. (265) De­fendant contended that it was er­ror to include in the cal­culation of his offense level one kilogram of cocaine that he promised to sell to government agents, since he never intended to sell the kilogram and was inca­pable of sell­ing such a large quantity.  Defen­dant testified that the kilogram was a figment of his imagination and the promise to deliver it mere bragging.  The 1st Circuit re­jected the argument, noting that two weeks after de­fendant was introduced to the agents, defen­dant told them he would sell any amount of co­caine at any time.  When the agents broached the subject of a kilogram, defendant immedi­ately quoted a price and an availability date.  Defendant thereafter negotiated in earnest, and even­tually upped the price of the cocaine.  Moreover, the agents overheard defendant at a party tell two friends that the co­caine being provided for the gathering had cost him $28,000 per kilogram, the price defendant sub­sequently quoted to the agents.  U.S. v. Bradley, 917 F.2d 601 (1st Cir. 1990).

 

2nd Circuit holds that counsel’s failure to object to calculation of drug quantity was ineffective assistance. (265) Defendant sold 48.3 grams of crack to a confidential informant who was under direction from federal agents to purchase two ounces (56.7 grams) of crack from defendant. At trial the parties disagreed on whether defendant ever agreed to sell two ounces of crack. The PSR recommended a finding that defendant had agreed to sell over 50 grams of cocaine base. Defense counsel did not object, and the district court sentenced him accordingly, resulting in a guideline range of 151-188 months, and a 151-month sentence. Defendant filed a § 2255 motion, contending that his trial counsel’s failure to object to the calculation of his base offense level constituted ineffective assistance. The Second Circuit agreed. Under Note 12 to § 2D1.1, where an offense involves an agreement to sell a controlled substance, “the agreed-upon quantity … 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.” (emphasis added). Here, where the sale was completed and there was no evidence that the 48.3 grams actually sold did not represent the “scale of the offense,” counsel plainly should have objected. Such an objection was close to “a dead-bang winner.” Defendant was prejudiced by counsel’s lapse in representation, even though the 151-month sentence fell within either guideline range. At sentencing, the judge commented favorably on defendant and expressly imposed the guideline minimum. There was a reasonable probability that the judge would not have sentenced defendant to the same 151-month period which was at the top of the proper guideline range (121-151 months). Johnson v. U.S., 313 F.3d 815 (2d Cir. 2002).

 

2nd Circuit holds that defendant intended to sell cocaine even though he later substituted flour. (265) Defendant and his girlfriend made two drug sales to a confidential informant. Defendant then agreed to sell the informant six more ounces of cocaine. After his girlfriend was unable to get the drugs for the third sale from her source, they decided to substitute six ounces of flour for the cocaine. The Second Circuit ruled that defendant’s intent to sell six ounces of cocaine supported the district court’s decision to include those drugs in its drug quantity calculation, even though he later decided to substitute the flour in its place. Application Note 12 to § 2D1.1 states: “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 … [H]owever, … the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.” An intent once formed and expressed, as here, satisfies the intent requirement, even though the defendant later changes his minds and acts without such intent, in this case by selling flour instead of cocaine. Even if the court accepted defendant’s highly debatable claim that he withdrew from the conspir­acy by deciding to sell flour, withdrawal from a conspiracy serves only to end a conspirator’s liability for acts taken thereafter by another conspirator. U.S. v. Dallas, 229 F.3d 105 (2d Cir. 2000).

 

2nd Circuit bases sentence on full amount of drugs involved in reverse sting. (265) Defendant was a member of a ring that robbed drug stash houses. He was arrested in a reverse sting operation stealing 50 kilograms of real and sham cocaine from a warehouse. Note 15 to § 2D1.1 says that in a reverse sting where the government agents sells a controlled substance to a defendant, a downward depar­ture might be warranted if the government set a price for the drug that was substantially below its market value. Defendant challenged his offense level for the first time on appeal, suggesting that note 15 should be expanded to fit his case. The Second Circuit held that the district court did not commit clear error in basing defendant’s sentence on 50 kilograms, since he clearly intended to steal 50 kilograms. Before entering the ware­house, defendant knew that as many as 50 kilograms of cocaine would be inside; upon entering the warehouse, he saw what appeared to be 50 kilograms; while in the warehouse, he participated in the attempt to steal all 50 kilograms. Although it was unsettling that in this type of reverse sting the government has a greater than usual ability to influence a defendant’s offense level, an appellate court cannot force a downward departure as a matter of law. U.S. v. Caban, 173 F.3d 89 (2d Cir. 1999).

 

2nd Circuit agrees defendant intended to provide five kilograms despite claim that he intended to rob buyer. (265) Defendant agreed to provide five kilograms of cocaine to a cooperating informant, however, the transaction never occurred because defendant insisted that the transaction take place at a certain place and the informant adamantly refused to travel there. Defendant contended that he intended to rob the informant rather than sell him cocaine, and therefore he did not have the intent or capacity to produce the negotiated quantity. The Second Circuit disagreed. The evidence was sufficient for a jury to find capacity and intent beyond a reasonable doubt, and therefore it was sufficient for a sentencing court to make the same finding by a preponderance of the evidence. Defendant’s intent could have been inferred from a co-conspirator’s claim that the three ounces of cocaine he was packaging came from defendant or that defendant was expecting an additional shipment of 20-30 kilograms that month. Although defendant’s insistence on having the informant bring the cash to a certain area could be interpreted as an attempt to get the informant to a convenient location for a robbery, it also could be that defendant was a cautious drug dealer. In none of the taped conversations at trial did defendant disclaim his promise to supply five kilograms. The case cited by defendant, U.S. v. Hendrickson, 26 F.3d 321 (2d Cir. 1994), does not preclude a finding of capacity to produce a particular quantity of narcotics based solely on the negotiations. U.S. v. DeSimone, 119 F.3d 217 (2d Cir. 1997).

 

2nd Circuit refuses to consider defendant’s capacity to buy negotiated drug quantity. (265) Defendant was caught in a reverse sting attempting to purchase 125 grams of heroin from undercover agents. Defendant argued that he lacked the financial capacity to purchase the 125 grams. Although he conceded he had negotiated to purchase that amount, he and his co‑conspir­ator had only $2,039 when they were arrested, enough to purchase only 15 grams. The Second Circuit held that defendant was accountable for the full 125 grams he negotiated to purchase. The last sentence of note 12, excluding from consideration drugs that defendant did not intend to provide or was not reasonably capable of providing, applies only where a defendant is selling the controlled substance. In a reverse sting, drug traffickers mak­ing an illegal purchase frequently hold purchase money in reserve nearby for ready access while they test the quality of the drugs being purchased. Under U.S. v. Alaga, 995 F.2d 380 (2d Cir. 1993), a putative buyer cannot contest his ability to pay the sales price for a negotiated quantity. The case cited by defendant never dealt with this issue. U.S. v. Gomez, 103 F.3d 249 (2d Cir. 1997).

 

2nd Circuit says defendant is responsible for more than he received if he conspired for more. (265) Defendant possessed 987 grams of heroin at the time of his arrest. The government argued that he should be held responsible for a full kilogram because this was the quantity he intended to possess and distribute. Defendant argued that under U.S. v. Podlog, 35 F.3d 699 (2d Cir. 1994), once a transaction is complete, the court is required to attribute the amount actually obtained rather than the amount previously negotiated. The Second Circuit disagreed. Under U.S. v. Tejada, 956 F.3d 1256 (2d Cir. 1992), a court should calculate a defendant’s sentence in light of the amount agreed upon and not the smaller amount actually received. The district court may have misunderstood the law when it attributed 987 grams of heroin to defendant. If it found that defendant entered into a conspiracy to distribute one kilogram of heroin, then it improperly failed to attribute the entire kilogram to defendant. U.S. v. Ajmal, 67 F.3d 12 (2d Cir. 1995).

 

2nd Circuit uses negotiated quantity since amount actually sold was uncompleted distribution. (265) An undercover informant asked to purchase two ounces of crack from defendant. Defendant stated that he only had 1 1/2 ounces, but that he expected more within hours. The informant later bought the 1 1/2 ounces. Defendant told the informant that there would be more after 4 PM. The district court held defendant accountable for two ounces of crack. The Second Circuit affirmed, since the conversations showed that the sale of 1 1/2 ounces was an uncompleted distribution. Defendant’s offense level was properly calculated using the two ounce negotiated amount. U.S. v. Payne, 63 F.3d 1200 (2d Cir. 1995).

 

2nd Circuit attributes attempted one-kilo­gram sale to defendant. (265) The 2nd Circuit approved the decision to attribute to defendant his attempt to purchase one kilogram of heroin from his supplier. On September 2, defendant told his supplier that he had a buyer for one kilogram of heroin. On September 5, the supplier informed defendant that he had the heroin available. Defendant told his supplier that his customer was no longer interested, but renewed his request for the heroin several days later. After the supplier assured defendant that he could provide the kilogram, defendant persisted in his requests until September 14, when it became apparent that the supplier would not be able to provide the heroin. The fact that the deal was never consummated was not important. U.S. v. Podlog, 35 F.3d 699 (2nd Cir. 1994).

 

2nd Circuit holds that note 12 to § 2D1.1 does not apply to completed transaction. (265) Defendant originally inquired about purchasing about 125 or 400 grams of heroin from his supplier. He ultimately purchased only 125 grams. The 2nd Circuit held that the district court erred in attributing 400 grams of heroin to defendant. Note 12 to § 2D1.1, which directs a court to use “the weight under negotiation in an uncompleted distribution,” does not apply to a completed transaction. Where a narcotics transaction is completed, it is the amount ultimately agreed upon that should be punished, even if varying amounts were involved in the negotiations leading to the final agreement. In addition, the court’s finding that defendant could reasonably foresee that the conspiracy involved more than one kilogram of heroin was clearly erroneous. Defendant was involved in only two transactions–one for 500 grams and one for 125 grams. There was no other evidence that defendant knew or should have known that the conspiracy involved more than one kilogram. U.S. v. Podlog, 35 F.3d 699 (2nd Cir. 1994).

 

2nd Circuit holds government must prove intent to produce negotiated quantity. (265) Defendant argued that the district court erred in finding that he intended to import 50-60 kilograms of heroin from Nigeria, without considering his ability to produce such amounts. The 2nd Circuit held that where the government asserts that a defendant negotiated to produce a contested amount, the government bears the burden of proving the defendant’s intent to produce such an amount, “a task necessarily informed, although not determined,” by the defendant’s ability to produce the alleged amount. U.S. v. Hendrickson, 26 F.3d 321 (2nd Cir. 1994).

 

2nd Circuit requires findings on dispute over intent or ability to produce negotiated quantities. (265) Defendant claimed he was not responsible for drugs his co-defendant negotiated to sell to an informant because there was no evidence that he knew about the negotiated deal, much less intended to supply the cocaine. The 2nd Circuit remanded, since the district court made no finding regarding defendant’s intent to produce the negotiated quantity. When a defendant disputes his intent or ability to produce an amount under negotiation, the district court should make specific findings on those questions. U.S. v. Sweet, 25 F.3d 160 (2nd Cir. 1994).

 

2nd Circuit affirms that negotiations in­volved two kilograms of cocaine. (265) The 2nd Circuit affirmed the district court’s de­termination that defendant negotiated for the sale of two kilograms of cocaine, rather than one kilogram as he claimed.  Although it was true that defendant advised the buyer that he had available “whichever one is here when you get here,” this was not sufficient to make the district court’s finding was clearly erro­neous.   U.S. v. Harris, 8 F.3d 943 (2nd Cir. 1993).

 

2nd Circuit bases sentence on amount of cocaine defendant hoped to steal. (265) Defendant and some associates conspired to break into a drug dealer’s apartment and steal three kilograms of co­caine.  They were arrested before they could break into the apartment.  No drugs were found in the apartment.  The 2nd Circuit held that defen­dant was properly sentenced for the quantity of cocaine he hoped to steal.  Although he ex­pressed doubts as to whether the drugs were in the apartment, the con­spirators still went forward with their plan.  The court rejected defendant’s claim that since there was no co­caine in the apartment, the conspirators were not “reasonably capable” of producing three kilo­grams, as required by note 1 to former section 2D1.4.  The application note does not imply that the guidelines provide a defense of impossibility, but looks to whether a defen­dant would have been able to consummate a narcotics transaction if the facts were as he believed them to be.  U.S. v. Howard, 998 F.2d 42 (2nd Cir. 1993).

 

2nd Circuit refuses to consider whether buyer in reverse sting was able to com­plete purchase. (265) Defendant negotiated to purchase one and one-quar­ter kilograms of heroin from an under­cover agent for $75,000.  The heroin was purchased with a promis­sory note secured by defendant’s busi­ness.  Defen­dants argued that they should not be ac­countable for the full quantity, since they were unable to purchase the heroin, and the transaction was only made possi­ble by a government agent who was will­ing to accept less than market value for the heroin.  The 2nd Cir­cuit held that in a “reverse buy,” the puta­tive buyer cannot contest his ability to pay the sales price for the negotiated quan­tity.  Where a seller nei­ther in­tends nor is able to produce the negotiated quantity of narcotics, application note 1 to section 2D1.4 rec­ognizes that the crime could not have been commit­ted as planned.  Where the defendant is the buyer, however, and negotiates for a particular quan­tity, he or she fully intends to commit the crime as planned and can be held accountable for that quan­tity.  U.S. v. Alaga, 995 F.2d 380 (2nd Cir. 1993).

 

2nd Circuit affirms that defendant was ca­pable of 50 kilogram purchase despite shortage of funds. (265) The 2nd Circuit af­firmed that defendant was capable of pur­chasing 50 kilograms of cocaine, even though he only delivered $295,000 of the $500,000 needed for the purchase.  There was ample evidence that defendant and his associates were capable of purchasing 50 kilograms or more.  When defendant and an undercover agent first met, defendant showed him records of a 60 kilogram purchase defendant had recently made.  Further, defendant con­sistently represented that his associates had at least $3 mil­lion available for the purchase of cocaine, and he re­peatedly attempted to persuade the agent to sell 500 kilograms on consignment, promising at least half of that amount on delivery.  In addition, following his arrest, defendant told the agents that $5 mil­lion would have been forthcoming within 20 days for 500 kilos of cocaine.  U.S. v. Vargas, 986 F.2d 35 (2nd Cir. 1993).

 

2nd Circuit remands where court failed to con­sider drug amount defendant was able to pro­duce. (265) The district court sen­tenced defendant on the basis of the 500 grams of heroin that he had negotiated to sell.  The 2nd Circuit remanded for re­sentencing, agreeing that the court failed to make an ade­quate finding as to defendant’s ability to pro­duce that quantity.  The transcript revealed that the court was unclear as to what quantity of heroin was negoti­ated and was preoccu­pied with questions other than defendant’s ability to produce that amount.  U.S. v. Stevens, 985 F.2d 1175 (2nd Cir. 1993).

 

2nd Circuit remands for explicit findings of ability to import amount under negotia­tion. (265) Defendant was convicted of conspir­ing to import and importing heroin.  He argued that he should only have been sen­tenced on the amount he actually im­ported, since the poor quality of heroin he had previ­ously imported precluded him from im­porting the additional quanti­ties under nego­tiation.  The 2nd Circuit remanded because the district court failed to make explicit find­ings of fact.  The court appeared to have im­plicitly accepted the factual findings in the PSR, but this needed to be made explicit.  In light of the conflicting evidence, the court was required to make specific affirmative fac­tual findings.  U.S. v. Maturo, 982 F.2d 57 (2nd Cir. 1992).

 

2nd Circuit includes marijuana defen­dant re­quested, but never received. (265) De­fendant re­quested an under­cover agent to “front” him 25 pounds of marijuana, which he would pay for after he resold the marijuana.  The agent refused, and even­tually defendant intro­duced the agent to others who pur­chased 50 pounds of marijuana from the agent.  The 2nd Circuit af­firmed that it was proper to in­clude in defendant’s base offense level calculations the 25 pounds of mar­ijuana that defendant sought but never received.  De­fendant had the intent and the ability to distribute the drugs.  He asked the agent to front him the drugs on two separate occa­sions.  Given defendant’s exten­sive knowl­edge of drug deal­ers and the drug trade, it is evident that if he had re­ceived the requested drugs, he would have been able to sell then and repay the agent.  U.S. v. Agramonte, 980 F.2d 847 (2nd Cir. 1992).

 

2nd Circuit affirms including two kilo­grams under negotiation despite contrary stipulation. (265) The government stipu­lated that between 2 and 3.4 kilograms of co­caine were involved.  The stipula­tion further stated that two additional kilograms were un­der ne­gotiation and paid for when defendant was arrested.  The district court added the two kilograms to the stipulated quantity, and found defen­dant ac­countable for over five kilograms of cocaine.  The 2nd Circuit af­firmed.  The commentary to guide­line section 6B1.4 states that a stipulation must fully and accurately disclose all factors relevant to a de­termination of sentence.  The inaccurate statement here did not prejudice defendant, however.  The agreement did not purport to guarantee a sentencing range based on 2 to 3.4 kilograms.  Before accepting the plea, the judge took great pains to inform defen­dant that it would not be bound by the stipulation.  The judge was thus free, and in fact obligated, to consider the additional two kilograms un­der negotia­tion when defendant was arrested.  U.S. v. Telesco, 962 F.2d 165 (2nd Cir. 1992).

 

2nd Circuit holds that sentence should be based upon quantity of drugs that con­spirators agreed to deliver. (265) The 2nd Circuit reversed the district court’s determi­nation that the actual narcotics deliv­ered, rather than the amount the conspirators agreed to deliver, should determine defen­dant’s sentence.  Be­cause the agreement de­fines the conspiracy, the parties’ failure to complete the transaction does not shrink the conspiracy’s scope.  Here, there was no evi­dence that the conspirators were only “puffing” and were incapable of producing the agreed quantity.  They promised to sell two kilograms of cocaine and came quite close, sup­plying 1.989 kilograms. U.S. v. Tejada, 956 F.2d 1256 (2nd Cir. 1992).

 

2nd Circuit rules failure to object to drug quantity in presentence report waived challenge. (265) De­fendants claimed that it was er­ror to sentence them on the basis of the amount of heroin they negotiated to pur­chase because they lacked the money to make the purchase.  The 2nd Circuit ruled that defendants waived this claim by failing to object to the drug quan­tity listed in the pre­sentence report.  The district court asked de­fendants whether they disputed any of the findings in the pre­sentence re­port, and when they de­clined, the judge adopted the findings of the presen­tence report.  De­fendants had the responsibility to ad­vise the judge that there was a question regarding their reason­able capacity to pro­duce a negotiated amount of money or drugs.  U.S. v. Caba, 955 F.2d 182 (2nd Cir. 1992).

 

2nd Circuit affirms defendants’ ability to deliver additional cocaine. (265) The 2nd Circuit found no error in the district court’s determination that defen­dants were reason­ably capable of delivering five addi­tional kilo­grams of cocaine to the confiden­tial infor­mant.  One defendant admitted in his plea allocution that he conspired with the another defen­dant to dis­tribute the five kilograms.  In a letter to the Assistant U. S. Attorney, the three defendants ex­plained that their drug “boss” had been ready with five kilograms on the day of the deal, but when the informant failed to show up, the deal did not go through. In addition, evidence seized at defendants’ apartment, including 87 percent pure co­caine, weapons, bullet-proof vests, electronic scales and other narcotics paraphernalia, in­dicated that defen­dants were not low level traffickers.  Two defen­dants made tape-recorded statements in which they agreed to supply the informant with five kilograms of co­caine.  U.S. v. Olvera, 954 F.2d 788 (2nd Cir. 1992).

 

2nd Circuit holds court not bound by jury’s findings as to drug quantity. (265) A jury found by special interroga­tory that defendants had conspired to distribute five or more kilo­grams of cocaine.  Defendants ar­gued that they should not have been sentenced on the basis of five kilograms be­cause the evidence was insuf­ficient to show that they in­tended or were able to sell more than two kilograms.  The district court had rejected this ar­gument, finding it was bound by the jury’s verdict.  The 2nd Circuit remanded for resentencing, finding the dis­trict court’s view that it was bound by the jury’s ver­dict to be erroneous.  The government con­tended no remand was necessary, since the jury found each defendant had the requisite knowl­edge and intent be­yond a reasonable doubt.  Therefore, a sentencing court would have to make the same finding, since it need only make its find­ings by a preponderance of the evi­dence.  The 2nd Cir­cuit rejected this solution, finding that the sen­tencing court could make findings that differed from the jury’s find­ings.  Questions of inference and credibility are within the province of the finder of fact.  U.S. v. Jacobo, 934 F.2d 411 (2nd Cir. 1991).

 

2nd Circuit affirms that defendants negoti­ated to sup­ply two kilograms of cocaine. (265) The 2nd Circuit re­jected defendants’ con­tention that there was insufficient evidence to show that they negotiated to supply, and were capable of supplying, two kilograms of cocaine.  A police detective tes­tified that he negotiated to purchase two kilograms of co­caine, and de­fendants confirmed that once they received payment, they would send for the two kilo­grams.  An infor­mant eventually purchased one kilo­gram from defendant, but the informant told the detec­tive that defendants had agreed that if all went well, they would sell a second kilogram the next day.  Moreover, defendants told the detective that if this sale went smoothly, there was no reason why they could not do a steady business.  U.S. v. Pimental, 932 F.2d 1029 (2nd Cir. 1991).

 

2nd Circuit reverses determination that de­fendant was ac­countable for cocaine he never purchased. (265) De­fendant negotiated to ob­tain a kilogram of cocaine to sell to an under­cover government agent, but ulti­mately bought from an­other source because it was being sold for a better price.  The district court sentenced him based on two kilograms of cocaine.  The 2nd Circuit re­versed, ruling that the object of the conspiracy was to obtain only one kilogram to sell to the government agent. The kilogram eventually obtained was in lieu of, not in addi­tion to, the kilogram on which defendant had negotiated to buy.  This would have reduced his offense level from 78 months to 63 months.  Although the court de­parted downward to 48 months for defendant’s sub­stantial assistance, the court remanded for resentencing.  There was no way of knowing what sen­tence would have been imposed had the court known the correct guideline range.  U.S. v. Moon, 926 F.2d 204 (2nd Cir. 1991).

 

2nd Circuit upholds district court’s finding as to amount of cocaine despite defendant’s claim that he was only “puffing.” (265) Appli­cation note 1 to § 2D1.4, as amended effec­tive November 1989, mandates exclusion of amounts which a defendant is not capable of producing since “puffing” during the course of nego­tiations could re­sult in inflated offense levels.  Never­theless, despite defen­dant’s claim that he was only “puffing”, the 2nd Circuit ruled that “[w]hile the district judge was free to reject [defendant]’s statements as untrust­worthy, in light of the transactions and the vari­ous conversa­tions . . . he was not bound to do so.”  There was no clear er­ror.  U.S. v. Vazzano, 906 F.2d 879 (2nd Cir. 1990).

 

2nd Circuit upholds sentence based on amount of con­trolled substance under negoti­ation. (265) Defendant agreed to buy 7.7 kilos of heroin from undercover agents.  85% of the substance delivered was a placebo and only 1,043 grams were heroin.  Application Note 1 to U.S.S.G. § 2D1.4 directs the sentenc­ing court to consider the weight un­der negoti­ation in an uncom­pleted distribution.  Defen­dant contended that the note did not apply where the defendant was the purchaser and therefore he should have only been sentenced for the ac­tual amount of heroin received.  The 2nd Circuit dis­agreed, ruling that “Application Note 1 applies to any­one involved in the traffic of a controlled substance,” re­gardless of whether they are a buyer or a seller.  U.S. v. Adames, 901 F.2d 11 (2nd Cir. 1990).

 

2nd Circuit rejects defendant’s contention that co-defen­dant could not reasonably produce the negotiated amount of cocaine. (265) The 2nd Circuit held that a co-defendant’s state­ments to an undercover offi­cer simply indi­cated that he did think he could produce two kilo­grams of cocaine at the time the agent had requested.  The court thus rejected defendant’s argument that the co-defendant was not rea­sonably capable of producing two kilograms of cocaine as promised.  Thus, the district court properly considered these 2 kilograms when sen­tencing a co-conspir­ator.  U.S. v. Candito, 892 F.2d 182 (2nd Cir. 1989).

 

3rd Circuit says counsel was deficient in stipulating to drug quantity. (265) Defendant and an associate negotiated with cooperating witnesses to purchase cocaine. The amount involved was in question, although it could have been as much as five kilograms of cocaine, plus five more on credit. Defendant’s plea agreement stipulated that he had attempted to purchase ten kilograms, and defense counsel never raised the issue of the applicability of Note 12 to U.S.S.G. § 2D1.1, which excludes from sentencing calculations drugs “that the defendant establishes that he or did not intend to provide or was not reasonably capable of providing.” The circuits appear to be split on whether Note 12 applies to reverse stings. However, defense counsel could have advanced arguments in favor of Note 12 rather than surrender the stipulation in defendant’s plea. At the very least, Note 12 requires a court to determine the “agreed-upon quantity of the controlled substance.” By failing to develop the record or challenge the government on the agreed-upon quantity, the Third Circuit found that defendant’s counsel’s performance fell below the Strickland standard of “reasonableness under prevailing professional norms.” Strickland v. Washington, 466 U.S. (1984). However, the record was insufficient to resolve whether defendant was prejudiced by counsel’s deficient performance. On remand, the district court should hold a prompt hearing to determine the issue. The reasonable probability of any decrease in defendant’s sentence would establish prejudice. U.S. v. Smack, 347 F.3d 533 (3d Cir. 2003).

 

3rd Circuit holds sellers accountable for ounce actually sold rather than larger amount they offered to sell. (265) A government informant repeatedly attempted to purchase an ounce of heroin from defendant and Zheng. Defendant always refused to sell such a small quantity, but offered to sell defendant half a “unit” or a “unit.” A “unit” weighs 1 1/2 pounds. Eventually, defendant and Zheng sold the informant an ounce of heroin. The district court found that defendant and Zheng agreed to sell a unit of heroin; therefore, they were accountable for a unit rather than the ounce they actually sold to the informant. The Third Circuit reversed, ruling that under current version of Note 12 to § 2D1.1, defendant was accountable only for the ounce of heroin that was actually delivered to the informant. Note 12 specifies that if the sale was completed, then the actual weight delivered, rather than weight under negotiation, should be used. See U.S. v. Marmolejos, 140 F.3d 488 (3d Cir. 1998). When a sale is completed, the amount delivered “more accurately reflects the scale of the offense” unless a further delivery is scheduled or at the very least is agreed-upon. Here, no quantity beyond the one ounce was ever negotiated between defendants and the informant. The court did not reject the possibility that a sentence might be based upon an agreement among sellers. However, there was insufficient evidence here to show an agreement to sell beyond the one ounce actually delivered. U.S. v. Sau Hung Yeung, 241 F.3d 321 (3d Cir. 2001).

 

3rd Circuit says amendment directing use of amount delivered in completed sale is “clarifying.” (265) In 1991, defendant negotiat­ed to sell 5 kilograms of cocaine, but only delivered 4.96 kilograms at the time of the sale. The district court sentenced him based on the 5-kilogram figure. In 1996, defendant filed a § 2255 motion, claiming that his sentence should have been based solely on the 4.96 kilograms he actually distributed. He relied on Amendment 518, effective November 1, 1995, which changed note 12 to § 2D1.1 to provide that the negotiated drug quantity should be used to determine offense level “unless the sale is completed and the amount delivered more accurately reflects the scale of the offense.” The Third Circuit held that Amendment 518 was a “clarifying” amendment and was therefore retroactive, even though it was not listed in § 1B1.10. It was clarifying because it resolved an ambiguity in the previous version of the note as to whether the actual weight delivered or the weight under negotiation should be used for a completed sale. The Ninth Circuit in U.S. v. Felix, 87 F.3d 1057 (9th Cir. 1996), reached this same conclusion. U.S. v. Marmolejos, 140 F.3d 488 (3d Cir. 1998).

 

3rd Circuit outlines burden of proof and persuasion in uncompleted distribution. (265) Note 12 to § 2D1.1 provides that in an uncompleted distribution, a court shall exclude the weight of drugs “the defendant did not intend to produce and was not reasonably capable of producing.” The 3rd Circuit outlined the burden of proof and persuasion in establishing the quantity of drugs for which a defendant is responsible in an uncompleted distribution. Once the government makes its prima facie showing that a particular amount of drugs was negotiated, defendant must come forward with evidence that he lacked both the intent and capability to produce the negotiated quantity. The ultimate burden of persuasion does not shift to defendant, but remains with the government. Thus, if a defendant introduces new evidence or casts the government’s evidence in a different light, the government must then prove either that the defendant intended to produce the negotiated amounts of drugs or that he or she was reasonably capable of doing so. For a defendant to be sentenced on a lesser amount, the sentencing court must find both lack of intent and lack of reasonable capability. U.S. v. Raven, 39 F.3d 428 (3rd Cir. 1994).

 

3rd Circuit holds that meaning of “produce” in note 12 shifts according to defendant’s role. (265) Note 12 to § 2D1.1 provides that in an uncompleted distribution, the court shall exclude the weight of drugs “the defendant did not intend to produce and was not reasonably capable of producing.” The 3rd Circuit held that the term “produce” varies according to a defendant’s role in an offense. Where a defendant is the drug seller, it refers to the quantity of drugs the defendant can produce. However, where a defendant is the drug buyer, it addresses the quantity of drugs that the defendant intended to buy and was capable of buying. Where, as here, the defendant is a courier, the proper focus is the quantity of drugs the defendant intended to transport and was reasonably capable of transporting. The district court must make explicit findings as to intent and capability. Because the district court did not make explicit findings as to defendant’s intent and capability to transport drugs, the case was remanded. U.S. v. Raven, 39 F.3d 428 (3rd Cir. 1994).

 

4th Circuit applies requirement of capac­ity to pro­duce negotiated quantity to drug purchases. (265) Application Note 1 to sec­tion 2D1.4 states that if the de­fendant did not intend to produce and was not reason­ably capable of produc­ing a quantity of drugs un­der ne­gotiation, the court shall exclude that quantity from the calculation of the defen­dant’s of­fense level.  The 4th Circuit found that the note also applies to a defendant’s ability to make a negotiated drug purchase.  Thus, a court must exclude any quantity of drugs which a de­fendant has negotiated to pur­chase if the defendant lacked both the in­tent and the ability to complete the transac­tion.  The require­ment is framed in the conjunc­tive and not the dis­junctive.  Here, de­fendant had both the intent and the ability to purchase 20 kilograms of cocaine.  He re­peatedly told undercover agents during the course of negotiations of his intent to pur­chase the 20 kilo­grams.  Although he did not have in cash the $300,000 necessary to com­plete the deal, he appar­ently owned various properties collectively worth in excess of $300,000, which he offered to pledge as col­lateral to support his purchase of drugs on credit.  U.S. v. Brooks, 957 F.2d 1138 (4th Cir. 1992).

 

4th Circuit reverses determination that defen­dant who had no money was capable of pro­ducing 10 kilograms of cocaine. (265) An un­dercover agent attempted to purchase 10 kilo­grams of cocaine from defendant.  No sale was ever con­summated, although the agent did wire $1300 in expense money to defendant.  Defen­dant was not able to produce the cocaine and claimed that he planned to “rip off” the agent.  The district court held defendant accountable for the 10 kilograms, finding that if defendant had the money he could have gotten the co­caine.  The 4th Circuit reversed, finding noth­ing in the record to show that defendant could have raised the $150,000 necessary to purchase the cocaine.  Without such money defendant was not “reasonably capable” of producing any cocaine.  U.S. v. Richardson, 939 F.2d 135 (4th Cir. 1991).

 

5th Circuit holds that non-controlled substance should have been excluded from drug quantity because defendant did not intend to deliver a controlled substance. (265) The district court included in its drug quantity calculation 85.05 grams of cocaine that defendant agreed to sell to a confidential informant. Defendant was apprehended before he could make the sale, and police found in his car 81 grams of a non-controlled substance that physically resembled cocaine – defendant was apparently attempting to “rip-off” the inform­ant. The district court included the quantity, since defendant had made other cocaine sales, and the court found he had the ability to produce the agreed-upon quantity of cocaine. The Fifth Circuit reversed. Note 12 to § 2D1.1 says that in an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the substance is to be used unless “the defendant establishes that [he] did not intend to provide or purchase, or was not reasonably capable or providing or purchasing, the agreed-upon quantity.” The disjunctive language indicates that if either the defendant did not intend to deliver the agreed-upon quantity, or was not capable of providing the agreed-upon quantity, then it should be excluded from the drug quantity calculation. Since defendant never intended to supply the agreed-upon quantity of controlled substance, it should have been excluded from the court’s drug quantity calculation. U.S. v. Davis, 478 F.3d 266 (5th Cir. 2007).

 

5th Circuit includes negotiated drug quantity in sentencing calculation. (265) Defendant was part of an extensive drug-trafficking conspiracy. He argued that the court erred in considering at sentencing the cocaine that he negotiated but never delivered to a co-conspirator. The Fifth Circuit found no error in including the nego­tiated drugs in the sentencing calculation. There was no evidence that defendant did not intend or could not produce the cocaine. Negotiations floundered over price. U.S. v. Posada-Rios, 158 F.3d 832 (5th Cir. 1998).

 

5th Circuit agrees conspiracy involved ten kilos of cocaine even though conspirators only had enough money to buy three kilos. (265) Defendant agreed to supply a DEA informant with 10 kilograms of cocaine at a price of $14,500 per kilogram or a total of $140,000. He argued that the court erred in finding that the crime involved 10 kilograms since the only evidence of a 10-kilogram conspiracy came from the informant, who was unreliable. He claimed that the other evidence suggested a much smaller conspiracy, since the conspirators were only carrying $38,863 in cash when they were arrested. The Fifth Circuit held that the district court’s finding that the conspiracy involved 10 kilograms of cocaine was not clearly erroneous. At trial, the informant testified that he understood that their initial transaction was to involve five kilograms of cocaine with a follow-up transaction to involve another five kilograms if everything went well with the first transaction. Even if the transaction involved only five kilograms of cocaine, it would not change the offense level. U.S. v. Millsaps, 157 F.3d 989 (5th Cir. 1998).

 

5th Circuit uses negotiated quantity where defendant promised the balance within a week. (265) Undercover agents negotiated to buy 2,000 pounds of marijuana from defendant. At the hotel where the purchase was to take place, defendant told one agent he would not be able to deliver the full 2,000 pounds, but that he would be able to make up the difference within one week. After an inform­ant called from the stash house to confirm receipt of 877 pounds of marijuana, defendant was arrested. The Fifth Circuit rejected defendant’s claim that he was not capable of the providing the full 2,000 pounds. Although the agent suggested the 2,000 pound purchase, defendant agreed to that amount. During negotiations, he repeatedly assured the undercover agents that he could deliver the full 2000 pounds within 10 days. Moreover, drug ledgers and documents reflected additional pounds of marijuana that defendant’s other conspirators moved. U.S. v. Lombardi, 138 F.3d 559 (5th Cir. 1998).

 

5th Circuit uses negotiated quantity supplied by government agent. (265) Defendant pled guilty to using a communication facility in relation to a felony drug offense. Section 2D1.6 mandates that the amount of drugs negotiated via the communications facility be used to determine a defendant’s base offense level. Defendant argued that because government agents supplied the amount of drugs to be produced, that amount could not be used to sentence him. The Fifth Circuit disagreed. In the case cited by defendant, there was no clear evidence that the defendant met with anyone other than the government agent. Here, defendant met with another conspirator concerning the laboratory. Moreover, the court has previously upheld a defendant’s sentence based on the government’s choice as to amount or quantity. The fact that defendant was unable to procure the chemicals on the lists supplied by the government agents did not mean he lacked the requisite intent and ability to produce the negotiated quantity. The district court found that defendant agreed to supply chemicals to produce at least 12 pounds of methamphetamine and was a knowing participant in the conspiracy. U.S. v. Vine, 62 F.3d 107 (5th Cir. 1995).

 

5th Circuit agrees that defendant negotiated to buy 500 grams of cocaine. (265) Undercover investigators agreed to sell cocaine to defendant. Defendant challenged the court’s determination that the offense involved 500 grams of cocaine, since the government and defendant stipulated in the plea agreement that the quantity was 200 grams. The Fifth Circuit affirmed the court’s finding that the offense involved 500 grams. The district court was not bound by the stipulation and could determine any fact relevant to sentencing. The record showed that the investigators negotiated to sell 500 grams for either $5,000 or $8,000. The cash defendant “flashed” to the investigators was over $11,000, sufficient to cover either price. U.S. v. Rodriguez, 60 F.3d 193 (5th Cir. 1995).

 

5th Circuit finds no sentencing manipulation despite government’s “fronting” more marijuana to defendant. (265) Defendant told undercover agents he had a buyer for 150 pounds of marijuana. The agents brought 240.5 pounds of marijuana to the meeting. The buyer agreed to purchase 175 pounds, and defendant said he would take the remaining 65 pounds “on the front.” Defendant argued that the government engaged in sentencing manipulation by bringing 240 pounds of marijuana to the meeting and agreeing to “front” the extra marijuana in order to increase the drugs involved to over 100 kilograms. He argued that no reasonable drug dealer would give him the marijuana without payment. The Fifth Circuit found the entire amount of marijuana was part of defendant’s relevant conduct, noting that “fronting” is a recognized practice among drug dealers. Even if the government’s bringing the extra marijuana to the meeting was suspicious, it did not constitute sentencing manipulation. U.S. v. Tremelling, 43 F.3d 148 (5th Cir. 1995).

 

5th Circuit excludes negotiated amount in finding  mandatory minimum quantity. (265) Defendant was sentenced to a manda­tory life term under 21 U.S.C. §§841(a)(1)(A)(i) and 846.  In assessing whether defendant’s drug quantity qualified him for that sentence, the 5th Circuit con­cluded that only quantities actually possessed with the intent to distribute could be consid­ered.  Unlike a calculation of drug quantity under the guidelines, amounts that were merely negotiated could not be considered.  The court concluded that a conspiracy to possess the quantity would allow it to be con­sidered, but noted that a defendant cannot “conspire” with an undercover agent, and hence that defendant’s negotiated quantity could not be considered.  While the district court properly excluded the negotiated amount, it committed clear error in assessing defendant’s drug quantity by relying on cryp­tic notes on a piece of paper seized from a coconspirator.  U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993).

 

5th Circuit affirms consideration of quan­tities negotiated for but not actually pro­duced. (265) The district court calculated defendant’s drug quantity to include a kilo­gram of heroin that defendant agreed to sell to undercover agents.  Defendant actually provided only 330 grams on the agreed date, but promised to provide the rest later.  He was arrested before that later date arrived, and he argued that the original quantity of one kilogram should not be included in his drug quantity because it constituted “mere puffing.”  The district court disagreed, and the 5th Circuit affirmed.  Defendant’s prior deliveries and promises for future deliveries, in conjunction with narcotics transaction notes found at a co-conspirator’s apartment, permitted the district court reasonably to de­termine that defendant had both the intent and the ability to produce the one kilogram quantity.  U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993).

 

5th Circuit holds defendant accountable for cocaine he agreed to transport. (265) Defendant argued that the district court erred in determining that 20 kilograms of cocaine were involved in his conspiracy, since the jury found he only possessed five kilograms.  The 5th Circuit upheld the determination.  Defendant agreed to transport between 15 and 20 kilograms of cocaine from Florida to Baton Rouge.  Although he never actually transported it, his agreement to do so pro­vided a sufficient basis for holding him ac­countable.  U.S. v. Vaquero, 997 F.2d 78 (5th Cir. 1993).

 

5th Circuit says court need not determine defen­dant’s ability to produce negotiated drug quantity unless defendant objects. (265) Defendants argued for the first time on appeal that they should not be accountable for 500 pounds of marijuana they negotiated to sell an undercover officer since they did not intend and were not capable of delivering this quantity.  The 5th Circuit found no plain error in the court’s failure to determine that defendants were rea­sonably capable of pro­ducing the negotiated quantity.  Where a de­fendant has disputed his intent or capa­bility to deliver a negotiated quantity, the sentenc­ing court should make a finding on that issue.  In the ab­sence of some objection, however, the district court is not required to anticipate a dispute over intent or ability.  Moreover, there was sufficient evidence at trial to sup­port findings on amount, intent and abil­ity.  U.S. v. Mora, 994 F.2d 1129 (5th Cir. 1993).

 

5th Circuit finds defendants responsible for drugs under negotiation despite lack of down payment.  (265) Defendants negoti­ated to purchase 750 pounds of marijuana from a gov­ernment informant.  The informant demanded a $30,000 down payment, but de­fendants claimed they only had about $5,000.  The informant later reduced his demands to $20,000.  Several days before their arrest, defendants were told they were going to re­ceive the 750 pounds.  The informant and an undercover agent then delivered 610 pounds of marijuana to one defendant’s residence.  The de­fendant stated that his co-conspirator could get the money for the down payment and that they could raise $200,000 in 24 hours.  The 5th Circuit affirmed that defen­dants were responsible under section 2D1.4 for the full 750 pounds.  They were told that they would receive the full 750 pounds, and were not perplexed by that knowledge.  They repeatedly at­tempted to negotiate alternatives to the large down payment, and clearly in­tended to possess the mari­juana — if they could get their hands on it.  U.S. v. Brown, 985 F.2d 766 (5th Cir. 1993).

 

5th Circuit affirms that defendants were involved in negotiations to purchase 1500 pounds of mari­juana. (265) The 5th Circuit affirmed that the evidence was sufficient to conclude that defendants were involved in negotiations to purchase 1500 pounds of marijuana.  The presentence report made this conclusion based upon the probation of­ficer’s conversation with a DEA agent who participated in the reverse sting.  The DEA agent met with a co-de­fendant, acting as a middleman for defendants, to discuss the po­tential purchase of the 1500 pounds.  The de­fendants participated in conversa­tions con­cerning the purchase of the 1500 pounds.  That de­fendants denied the facts in the pre­sentence re­port did not make the report un­reliable.  The district court could chose to believe the unsworn report of the DEA agent, as related to the probation officer who pre­pared the presentence report, over the unsworn and unsupported assertions of the defendants.  Moreover, the presentence re­port was not the only evidence in the record to support the district court’s finding.  The agent stated in a sworn criminal com­plaint and testified at de­fendants’ detention hearing that defendants told the agent that they would pur­chase 1500 pounds.  U.S. v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).

 

5th Circuit upholds consideration of drugs confiscated during defendant’s prior arrest. (265) In January, de­fendant was arrested on state charges after a search of his house uncov­ered approximately 860 grams of am­phetamine and various laboratory equipment.  Over five months later, defendant sold a small quantity of am­phetamine to under­cover agents, and agreed to sell to the agents an additional 28.35 grams of amphetamine.  The 5th Circuit up­held calcu­lating defendant’s offense level based on all of these amounts.  A court may prop­erly consider the amounts of drugs under negotia­tion in calculating relevant conduct.  The am­phetamine found earlier was also relevant.  Although the search took place over five months earlier, the evidence demon­strated that defendant was engaged in a continuous am­phetamine and distribution enter­prise.  U.S. v. Moore, 927 F.2d 825 (5th Cir. 1991).

 

5th Circuit holds that sentencing court may consider amount of drugs under negotiation in setting offense level, even though the defen­dant is not charged with con­spiracy. (265) A drug defendant negotiated for the sale of 16 ounces of cocaine.  However at the time of his ar­rest he had only eight ounces on his person.  The 5th Cir­cuit upheld the district court’s re­liance on the 16 ounces in setting the defen­dant’s offense level under § 2D1.4 even though he was not convicted of conspir­acy.  Application note 11 to § 2D1.1 directs a sen­tencing court to consider § 2D1.4 when the offense involves negotiations to traf­fic in drugs, so the calcula­tion of the of­fense level as performed by the dis­trict court in this case was proper.  The evidence at sentenc­ing was suffi­cient for the district court to conclude that the defendant was not “puffing,” but was “reasonably ca­pable of pro­ducing the 16 ounces.”  U.S. v. Garcia, 889 F.2d 1454 (5th Cir. 1989).

 

6th Circuit says evidence that supplier engaged in similar size transactions showed defendant’s ability to obtain additional drugs. (265) Defendant sold one pound of methamphetamine to an informant and an undercover agent. During the sale, defendant negotiated to sell an additional two pounds of methamphetamine to the informant. Defendant argued that he should not be held accountable for the addi­tional two pounds of methampheta­mine because he was not reasonably capable of providing it. See Note 12 to § 2D1.1. Once the government establishes the agreed-upon quan­tity, the defendant has the burden of proving that he either did not intend to provide or was not reasonably capable of providing that amount. The Sixth Circuit held that the district court did not clearly err in finding that defendant was reasonably capable of providing the additional two pounds of methamphet­amine. Defendant was to act as an emissary for his supplier in the agreed-upon transaction; therefore, the fact that defendant’s supplier was engaging in transactions of up to two pounds of meth demonstrated that defendant could have obtained the additional methamphetamine. Fur­ther­more, defen­dant engaged in serious nego­tia­­tions rather than mere idle talk. He also did not hesitate before agreeing to the transaction. The only circumstances that prevented defen­dant from obtaining and delivering the addi­tional drugs was his own arrest. U.S. v. Vasquez, 352 F.3d 1067 (6th Cir. 2003).

 

6th Circuit holds defendant responsible for larger drug quantity in light of discussions about “fronting” drugs.  (265) An informant offered to sell cocaine to Pointer and defendant at $17,000 per kilogram. They discussed different amounts of cocaine and the possibility of fronting part of it to defendant and developing an ongoing drug trade. A few days later, the informant told Pointer that he would have seven or eight kilograms of cocaine available in two shipments. Pointer indicated that he would be able to pay for three kilograms and pay for the rest when the second shipment arrived. At the transaction, Pointer brought almost $60,000 in an attempt to purchase four kilograms of cocaine. The informant offered and Pointer agreed to accept seven kilograms. Defendant argued that drug quantity should be based on the amount of money Pointer brought to the transaction ($60,000), divided that amount by the agreed price of $17,000 per kilogram, for a total of 3.5 kilograms. The Sixth Circuit rejected this argument and ruled that defendant was properly held accountable for full seven kilograms of cocaine that Pointer accepted. There was never an agreed-upon quantity of drugs. Although Pointer brought only $60,000 to his meeting with the informant, the informant offered and Pointer accepted seven kilograms of cocaine. In light of the prior negotiations about fronting Pointer, the quantity of seven kilograms was reasonably foreseeable to defendant. U.S. v. Samuels, 308 F.3d 662 (6th Cir. 2002).

 

6th Circuit rules defendant was incapable of providing methamphet­amine. (265) Defen­dant agreed sell an in­formant two pounds of “crystal,” at a price of $15,000 a pound. He referred to the need to confer with his “bosses” regarding the terms of the transaction. Eventually, a courier delivered 804.8 grams of amphetamine to the informant, who made a down-payment on the drugs. In further conversations regarding payment for the am­phetamine, defendant repeatedly re­ferred to the delivery as “crystal.” “Crystal” is slang for metham­phetamine. In addition, $15,000 is an appropriate price for a pound of meth. The district court found that defendant conspired to distribute meth, and sentenced him according­ly. The Sixth Circuit reversed, ruling that defendant was not capable of delivering methamphetamine. The current version of Note 12 to § 2D1.1 provides that the court shall exclude from its drug quantity calculations those drugs that defendant establish­es that he did not intend to provide or was not reasonably capable of providing. A defendant is only required to show a lack of intent or a lack of capability, not both. Here, defendant simply took the drugs provided by his only source. Thus, he was not capable of providing the promised meth. U.S. v. Munoz, 233 F.3d 410 (6th Cir. 2000).

 

6th Circuit finds defendant had intent and ability to produce 2500 kilograms. (265) On defendant’s first appeal, the Sixth Circuit held that the district court’s findings were ambiguous as to defendant’s intent and ability to produce the conspiratorial volume of 2500 kilograms of cocaine. After resentencing, the Sixth Circuit found that the findings were adequate. The district court expressly credited the testimony of one witness concerning the existence of a conspiracy to import 2500 kilograms of cocaine into the country. The court found the testimony credible, and corroborated by other witnesses. The court also found that steps were taken to implement the scheme, including moving a boat and wiring money. Finally, the court found that defendant was capable of carrying out the scheme, as evidenced by prior smuggling trips he had taken with his boat. U.S. v. Gessa, 57 F.3d 493 (6th Cir. 1995).

 

6th Circuit says “major supplier” was ca­pable of delivering 500 kilograms of co­caine. (265) Three conspirators claimed that the district court improperly included 500 kilograms of cocaine that one of the conspira­tors said he had in Mexico await­ing delivery.  They claimed such statements were mere “puffery,” particularly since the subsequent sale by the conspirator only involved three kilograms of cocaine.  The 6th Circuit af­firmed that the conspira­tor who made the statement, a “major supplier of drugs” for the conspiracy, had the intent and capa­bility to deliver on his statements regarding the large shipment, and was therefore responsible.  However, the district court held the other two conspirators re­sponsible for the entire quan­tity without making the additional finding that it was reasonable to impute knowledge of all of the conspiracy’s criminal activity to them.  In order for the court to make the necessary findings, their cases were remanded.  U.S. v. Medina, 992 F.2d 573 (6th Cir. 1993).

 

6th Circuit rejects using negotiated amount where transaction was completed. (265) Defendant was convicted of five counts of distributing drugs.  He was not charged with conspiracy or attempt to dis­tribute.  In calculating his base offense level, the dis­trict court included 250 grams of cocaine which was the negotiated quantity involved in the last sale.  The 6th Circuit held that it was er­ror to use the negotiated quantity.  First, sec­tion 2D1.4, which authorizes the use of nego­tiated quantities in certain instances, deals with attempts and conspiracies, neither of which was a charge against defendant.  Sec­ond, the last sale was a completed transac­tion; therefore the negotiated quantity was no longer relevant.  U.S. v. Bryant, 987 F.2d 1225 (6th Cir. 1992).

 

6th Circuit affirms that earlier un­completed trans­action was rele­vant con­duct. (265) Defendant and his co-conspirator initially attempted to pur­chase five kilo­grams of cocaine from undercover agents.  The deal was never completed because the agents re­fused to permit the co-conspirator to leave with one kilo­gram for testing without paying for it.  Defendant and his co-conspirator were subsequently arrested after at­tempting to purchase three kilograms of cocaine from the same undercover agents.  The 6th Circuit af­firmed that the five kilograms of cocaine in­volved in the uncompleted transaction were properly consid­ered in determining defen­dant’s base offense level.  The earlier transac­tion was part of the same course of con­duct or common scheme or plan:  it in­volved the same parties, the same sub­stance, and the same objectives.  Al­though the earlier deal was never con­summated, defendant clearly intended to purchase five kilograms from the agents.  Moreover, defendant represented to his co-conspirator that he had enough cash to purchase the cocaine.  U.S. v. Nichols, 979 F.2d 402 (6th Cir. 1992), cert. granted in part, Nichols v. U.S. 114 S.Ct. 39 (1993).

 

6th Circuit, en banc, remands to clar­ify why drugs in uncompleted transac­tion were excluded. (265) Based on the hearsay testimony by one witness, the district court determined by a prepon­derance of the evi­dence that defendant was involved with a scheme to import into the U.S. 2,500 kilo­grams of cocaine.  However, the court ex­cluded the 2500 kilograms from the compu­tation of the base offense level be­cause the scheme was too tenuous and remote, the drugs were only the subjects of conversation, and there had been no completed trans­action.  Finding the district court’s statement con­fusing, the 6th Cir­cuit, en banc, remanded to clarify why the 2,500 kilograms were ex­cluded.  Under section 2D1.4, the district court must include the “conversational co­caine” involved in the uncompleted conspir­acy, if it con­cludes that defendant had the in­tention to pro­duce or was reasonably capable of producing 2500 kilograms.  Judge Kru­pansky, joined by Judges Nel­son, Boggs, Nor­ris and Batchelder, and Judge Kennedy, joined by Judges Nelson and Suhrheinrich, dissented.  U.S. v. Gessa, 971 F.2d 1257 (6th Cir. 1992) (en banc).

 

6th Circuit, en banc, affirms that de­fendant can be sentenced for drug quan­tity under ne­gotiation. (265) An undercover agent agreed to transfer to defendant 500 grams of cocaine, but the agent only trans­ferred 85 grams of co­caine in a small plastic bag placed inside a mixture of 985 grams of powdered plaster of Paris.  On rehearing en banc, the 6th Cir­cuit did not review whether the weight of the plas­ter of Paris could be properly considered at sentenc­ing, since the government conceded it could not be con­sidered.  But the court held that defendant could be sentenced on the basis of the en­tire 500 grams of co­caine he negotiated to pur­chase.  Appli­cation note 1 to section 2D1.4 clearly authorizes the consideration of the weight of drugs under nego­tiation in an un­completed distribution, and section 1B1.3 permits an unconvicted attempt or conspir­acy to be considered as rele­vant conduct to a possession offense.  The fact that attempts and conspiracies are inchoate crimes is im­material so long as the conduct was part of the same course of conduct, common scheme or plan.  Judge Nelson, joined by Judges Guy, Suhrheinrich and Batchelder, con­curred.  Chief Judge Merrit, joined by Judges Martin and Jones, dissented.  U.S. v. Davern, 970 F.2d 1490 (6th Cir. 1992) (en banc).

 

6th Circuit affirms use of drug quantity de­fendants attempted to purchase rather than smaller quan­tity actually possessed by federal agents. (265) Defendants were arrested after attempting to pur­chase three kilograms of cocaine from government agents.  The 6th Circuit affirmed basing their sen­tence upon three kilograms, even though the federal agents posing as narcotics sales­men had access to only one kilogram of co­caine.  The negotiated amount was three kilo­grams and defendant had sufficient funds at the time of their arrest to purchase three kilograms.  U.S. v. Snelling, 961 F.2d 93 (6th Cir. 1991).

 

6th Circuit upholds sentencing defendant on the basis of entire negotiated quantity of drugs. (265) Defendant con­tended that there was no evidence that he was capable of pur­chasing the two five-kilogram amounts of co­caine for which he negotiated, and therefore this amount should have been excluded from his offense level.  The 6th Circuit re­jected this argument, ruling that the defendant did not meet his burden of proving he was not capable of purchasing the negotiated amount.  Defen­dant’s argument was based upon testimony of a co-defendant who asserted that he “coached” defendant to act like a dope dealer in ex­change for several hundred dollars.  In contrast, the govern­ment presented a videotape showing defendant repeatedly boasting of his abil­ity to quickly sell kilogram quantities of cocaine and that his only difficulty was getting a consistent supply.  The tape also showed defendant taking and testing the cocaine brought by undercover agents.  Based on this “powerful evidence,” the district court was justified in reject­ing defen­dant’s testimony and including the 10 kilograms in the offense level calcula­tion. U.S. v. Chris­tian, 942 F.2d 363 (6th Cir. 1991), abrogation on other grounds recognized by U.S. v. Washington, 127 F.3d 510 (6th Cir. 1997).

 

6th Circuit affirms drug calculation based upon amount de­fendant negotiated to sell to confidential in­formant. (265) Although defen­dant agreed to sell 500 grams of cocaine to a confidential informant, when de­fendant was ar­rested, he was in possession of only 300 grams of cocaine.  The district court nonetheless sen­tenced defendant on the basis of the full 500 grams.  The 6th Circuit upheld this determina­tion.  If a defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negoti­ation in an uncompleted distribution is used to calcu­late the ap­plicable amount.  U.S. v. Gonzales, 929  F.2d 213 (6th Cir. 1991).

 

6th Circuit upholds finding that defendant was capable of delivering 60 kilograms of mari­juana. (265) The de­fendant was recorded telling the government informant that he could produce “100 a week.”  This was corrobo­rated by his cocon­spirators. Defendant argued that these state­ments were mere “puffing,” and that the actual amounts he delivered were much less.  However, the 6th Circuit ruled that the dis­trict court took that into consid­eration, and its determination that defendant was capa­ble of delivering 60 kilograms was not clearly erro­neous.  U.S. v. Ro­driguez,  896 F.2d 1031 (6th Cir. 1990).

 

6th Circuit rules that total amount of cocaine was prop­erly con­sid­ered in determining the base offense level. (265) Defendant was con­victed of drug traf­ficking and the jury specifi­cally found that he possessed over 500 grams of cocaine with intent to distribute.  The evidence at the trial showed that he had agreed to sup­ply 10 ounces of cocaine to a third per­son who had negotiat­ed a sale to an under­cover officer.  The guide­lines state that the amount of the drug which is the subject of nego­tia­tions shall be used in de­termining the base offense level, even if the distribution is uncompleted.  Since the Dis­trict Court’s find­ing was not clearly er­roneous and was deter­mined ac­cording to cor­rect applica­tion of the guide­lines, the 6th Cir­cuit affirmed the sen­tence.  U.S. v. Perez, 871 F.2d 45 (6th Cir. 1989).

 

7th Circuit excludes drugs that defendant never in­tended to sell. (265) Defendant sold crack to a con­fiden­tial informant. However, after one of defendant’s crack houses was robbed, defendant accused the inform­ant of being the culprit. After things appeared to have blown over, the informant arranged to buy an additional 1.5 kilograms of crack from defendant. However, when the informant got to defendant’s house, he was beaten by defendant. Defendant argued that the 1.5 kilograms he offered to sell the informant should not be included in his drug quantity calculation. The Seventh Circuit agreed. The guidelines clearly provide that drug amounts should not be included if “the defendant did not intend to provide or purchase … the agreed-upon quantity of the controlled substance.” Note 5 to § 2D1.1. It was un­disputed that defendant never actually intended to sell drugs that day – he wanted to rob and beat the informant to avenge the robbery of his crack house. U.S. v. Love, 706 F.3d 832 (7th Cir. 2013).

 

7th Circuit remands for independent finding of drug quantity. (265) Defendant conspired to steal money and drugs from a drug dealer. However, the drug dealer was actually an FBI agent, and the car that the conspirators “robbed” contained $20,000 in cash and two fake kilograms of cocaine. On appeal, the government argued that the district court misapplied the Guidelines by not taking into account the full weight of the fake drugs stolen from the car, noting that the court accepted the jury’s determination of drug quantity because it was “troubled by the scenario in which the offense level is driven by the government’s decision about how many kilos to plant in the trunk.” The Seventh Circuit remand­ed for the district court to make an independent deter­mination as to drug quantity, because the district court simply relied on the jury’s conclusion that defendant and his co-conspirators conspired to steal at least 500 grams. U.S. v. Millet, 510 F.3d 668 (7th Cir. 2007).

 

7th Circuit says defendant could foresee completion of three-kilogram drug transaction. (265) Defendant participated in several conversa­tions concerning the conspira­tors’ sale of 50 kilograms of cocaine to an undercover police officer. The 50-kilogram sale was not completed because the conspira­tors demanded that the officer pay for the cocaine at the time of delivery, which he could not do. The officer then stated that he would provide an advance payment for three kilograms of cocaine once he had seen one kilogram of the cocaine. Later that day, another conspirator brought one kilogram to the officer in the presence of defendant. The officer told the conspirator that he would pay for the initial package of three kilograms of cocaine. Later that day, defendant and his co-conspirators were arrested. The Seventh Circuit ruled that defendant was properly held accountable for the full three kilograms of cocaine, rejecting his claim that the completion of the deal was not reasonably foreseeable to him. Defendant had a lengthy and significant participation in the conspiracy. Even though the three-kilogram deal was not completed, defendant was present at all meetings between the conspirators and the officer where they negotiated the sale of three kilograms. U.S. v. Vega-Montano, 341 F.3d 615 (7th Cir. 2003).

 

7th Circuit includes uncompleted drug purchase in sentencing calculation. (265) At the request of an inform­ant, defendant attempt­ed to purchase two ounces of crack from Jones, a co-conspirator. The transaction never took place because co-conspirators recognized police officers conducting sur­veillance in the area. Defendant argued that the two-ounce transaction should not have been included in his sentencing calculation because it had no potential of being completed–Jones never received the two ounces from her supplier, nor did she know that the number “1600” put in her pager number was a code for two ounces. The Seventh Circuit found no error. Although Jones testified that she did not know what the number “1600” meant, she did speak with the informant directly and apparently they reached an understanding about delivering the drugs. The entire process indicated that “negotiations and not idle talk” took place between the parties. Moreover, defendant did not hesitate to set up the deal and he had previously purchased two ounces of crack from Jones’s supplier. The deal was frustrated only by the discovery of the police outside Jones’s apartment rather than by a decision of the parties that the deal could not proceed. U.S. v. Wash, 231 F.3d 366 (7th Cir. 2000).

 

7th Circuit excludes rejected load of marijuana in calculating sentence. (265) Defendant discussed buying marijuana with a confidential informant named Bob.” On March 10, Bob delivered 500 pounds of marijuana at a cost of $550 a pound to defendant. Defendant refused delivery because he did not like the quality. Bob left with the rejected load. On June 21, Bob delivered 700 pounds of marijuana at a cost of $700 a pound. Defendant inventoried this marijuana and approved it. He paid Bob a down payment. The Seventh Circuit held that the rejected load should not have been included in the sentencing calculation. Defendant negotiated with Bob for the delivery of a single load of marijuana. There was no question that, throughout the charged conspiracy, defendant’s intent was to acquire only that one load. No other quantity was foreseeable. U.S. v. Mankiewicz, 122 F.3d 399 (7th Cir. 1997).

 

7th Circuit holds defendant accountable for additional kilogram he was interested in purchasing. (265) Defendant and two associates attempted to buy 3 kilograms of cocaine from an undercover agent. While discussing the money, the officer told the conspirators that he had ten more kilos of cocaine to sell and asked if they would be able to do a second transaction. Defendant said he was interested in one of the kilos. The Seventh Circuit found it permissible to hold defendant accountable for this additional kilo at sentencing. Defendant had both an expressed interest in purchasing an additional kilo and the ability to complete the transaction. He obviously had a serious interest in obtaining cocaine. There was no indication that he was bragging about something he could not accomplish. The offer of additional cocaine did not occur in jest but in the midst of a serious 3-kilo deal involving $60,000. U.S. v. Bonilla-Comacho, 121 F.3d 287 (7th Cir. 1997).

 

7th Circuit agrees that defendants intended and were capable of delivering ten kilos of cocaine. (265) A cooperating individual negoti­ated to purchase ten kilograms of cocaine from defendants. Defendants then restructured the deal, stating that they would start with a delivery of two kilograms, and if that transaction were successful, the remaining eight kilograms would follow. Defendants were arrested after providing the two kilograms. The Seventh Circuit held them accountable for the full ten kilograms, finding they intended to and were capable of delivering the full ten kilograms of cocaine. After a long period of negotiation, defendants clearly agreed to sell ten kilograms in two tiers, with the remaining eight kilograms to follow the first two. Moreover, one defendant confided in the informant that he had $120,000 worth of cocaine when an associate was arrested and that he had been taking $10,000 to $20,000 from each deal to repay his supplier. U.S. v. Tringali, 71 F.3d 1375 (7th Cir. 1995).

 

7th Circuit finds defendant was able to provide four additional kilos of cocaine. (265) Defendant “fronted” two kilograms of cocaine to an associate. The associate was arrested and agreed to cooperate. The associate told defendant he had a customer who wanted more, and defendant agreed to supply four more kilograms when the associate paid for the two fronted kilograms. Defendant said he did not have the four kilos, but could deliver them in two hours. Defendant was arrested when he accepted payment for the original two kilograms. The Seventh Circuit held defendant accountable for the additional four kilograms he agreed to supply. Defendant’s statements were not braggadocio or “puffery.”  Defendant had already delivered two kilograms and admitted supplying another kilogram to his associate earlier. Three times defendant agreed to return with the four kilos; he even told the undercover officer “I won’t fail you.”  The difficulties defendant encountered in producing the four kilos (the lateness of the hour, the distance to defendant’s home where the cocaine was stored, the need to be paid for the fronted cocaine first) were reasonable and did not indicate that defendant was merely bragging. Defendant was not required to take a “substantial step” toward commission of the attempted delivery of the four kilos. U.S. v. Garcia, 69 F.3d 810 (7th Cir. 1995).

 

7th Circuit says reasonable foreseeability is irrelevant where defendant is direct participant in transaction. (265) Defendants were involved in an attempt to buy five kilograms of cocaine from an undercover agent. They argued that they should not be held accountable for five kilograms because this quantity was not reasonably foreseeable to them. The Seventh Circuit held that reasonable foreseeability is irrelevant when the defendant is a direct participant in the relevant transaction. Under note 12 to § 2D1.1, the weight under negotiation in an uncompleted distribution shall be used to calculate drug quantity. Since the negotiation was for five kilograms, the district court properly used this quantity. U.S. v. Velasquez, 67 F.3d 650 (7th Cir. 1995).

 

7th Circuit finds ability to buy six kilos of cocaine despite lack of funds. (265) Defendants negotiated to purchase six kilograms of cocaine from an undercover agents. They argued that they were not reasonably capable of purchasing this quantity, since they only had $1,662 with them in Chicago. The 7th Circuit upheld the district court’s decision to attribute six kilograms to defendants. Defendants negotiated to purchase this quantity from the agents, and confirmed that they would pay $60,000. One defendant stated that he had extensive experience dealing with large quantities of cocaine, and that he could handle 15 to 20 kilograms a month in the future. He assured the agents that he had the full amount of money “wrapped” and ready to pay to the agents when the cocaine was delivered to Washington D.C. He scoffed at the agents for thinking that he was so naive as to bring $60,000 in cash to Chicago. Moreover, the court had some evidence of defendants’ ability to purchase drugs from their previous convictions. U.S. v. Jean, 25 F.3d 588 (7th Cir. 1994).

 

7th Circuit holds that mid-level distributor’s lack of funds did not show inability to complete purchase. (265) Defendant argued that because he did not have the money to purchase the 10 kilograms of cocaine he negotiated to buy, he was not reasonably capable of completing the transaction and should not have been held accountable for it.  The 7th Circuit rejected this claim.  In transactions where the defendant is working as a mid-level distributor and drugs are fronted to him with the understanding that payment will be forthcoming from the proceeds of subsequent sales, a lack of cash on hand does not indicate an inability to purchase the negotiated amount.  So long as the mid-level distributor genuinely intends to engage in such a “pay-later” transaction, his lack of currently available funds is irrelevant.  This was precisely the type of deal defendant arranged with the agent.  U.S. v. Cotts, 14 F.3d 300 (7th Cir. 1994).

 

7th Circuit affirms that defendant in­tended to purchase nine kilograms under negotiation. (265) When advised by an in­formant that he was expecting a 50-kilogram shipment of cocaine, defendant stated that he could “move” 10 kilos in two days, but wanted to start with one kilogram.  When defendant met the informant to buy the one kilogram, he instructed the informant to save the other nine kilos for him, stating “Don’t give them away.”  The 7th Circuit affirmed that defen­dant was responsible for the additional nine kilograms because he had the intent and ability to purchase them.  Defendant’s ability to complete the transaction was supported by the informant’s testimony that he previously sold 40 kilograms to defendant.  Moreover, the fact that the cocaine was “fronted” to de­fendant enhanced his ability to complete the transaction.  U.S. v. Cedano-Rojas, 999 F.2d 1175 (7th Cir. 1993).

 

7th Circuit includes nonexistent but nego­tiated amounts in drug quantity. (265) De­fendant’s co-conspirator negotiated for the pur­chase of 736 pounds of marijuana from a government informant.  Defendant argued that the amount could not be in­cluded in de­termining his drug quantity be­cause the mar­ijuana was “imaginary” and hence posed no threat to the public.  The 7th Circuit dis­agreed, noting that the co-conspirator had believed the drugs would be delivered.  De­fendant was suffi­ciently aware of the scheme to have his co-defen­dant’s negotiations im­puted to him.  U.S. v. Crawford, 991 F.2d 1328 (7th Cir. 1993).

 

7th Circuit scrutinizes informant’s asking price. (265) Defendant argued that 600 pounds of mari­juana that he agreed to buy from an informant should not be included in calculating his sentence because of the ability of informants to manipulate sentences by “offering large amounts of drugs at bar­gain prices or by offering extraordinary credit terms.”  The 7th Cir­cuit held open the possi­bility that such conduct could result in the exclusion of certain amounts.  However, de­fendant’s case did not present this situation.  Though the informant had initially re­quested a down payment of $65,000, he agreed to sell the marijuana later in the day when defen­dant re­turned with only $30,000.  It was re­alistic that such a deal would be struck, given defendant’s demon­strated ability to resell large quantities of mar­ijuana.  In addition, the drug quantity was properly included under an appli­cation note to former 2D1.4, which the court con­strued as requiring assessment of the buyer’s intent and his ability to complete the deal.  U.S. v. Fowler, 990 F.2d 1005 (7th Cir. 1993).

 

7th Circuit attributes 15 kilograms to de­fendant even though a co-conspirator was sentenced for only five kilograms. (265) The 7th Circuit af­firmed attributing 15 kilo­grams of cocaine to defen­dant even though his co-con­spirator was held re­sponsible for only five kilograms.  Defendant and his co-conspirator agreed to supply an undercover agent with 10 to 15 kilos of cocaine weekly.  Later, defen­dant told the agent that they had all 15 kilograms of cocaine ready for the agent to pick up.  The co-con­spirator con­firmed after his arrest that defendant had so­licited his assistance in obtaining 15 kilo­grams.  However, there was no rational basis for attributing only five kilograms to the co-conspirator.  The ratio­nales advanced by the government, the co-conspira­tor’s acceptance of re­sponsibility and his coopera­tion, were not proper considerations at that stage of the guideline process.  Nonetheless, the improper sentencing of his co-con­spirator did not give defen­dant a ground for com­plaining about his proper sen­tence.  U.S. v. Salazar, 983 F.2d 778 (7th Cir. 1993).

 

7th Circuit affirms that defendant had in­tent and ability to sell five kilos of co­caine. (265) Defendant negotiated with an undercover agent to ob­tain five kilograms of cocaine from defendant’s sup­plier.  The agent agreed to pay for all five, but would only re­ceive three.  De­fendant would take the other two kilo­grams and sell them, and repay the agent the purchase price for two kilo­grams from his sale proceeds.   The 7th Circuit af­firmed that defen­dant had the intent and ability to produce five kilo­grams of cocaine.  Defen­dant’s con­tention that he lacked the funds to com­plete the five kilogram deal was unper­suasive, since the undercover agent had promised to finance the en­tire deal.  Defen­dant did not have to provide any money to complete the deal, he just needed his sup­plier to get the drugs.  The court rejected defen­dant’s claim that there never was a solid agreement to buy and sell five kilograms.  The buyer/agent expressed a clear and defi­nite desire to purchase five kilograms, and defendant stated that he was “positive” his sup­plier could provide that quan­tity.  U.S. v. Ma­honey, 972 F.2d 139 (7th Cir. 1992).

 

7th Circuit affirms that one kilogram of cocaine was under negotiation. (265) The 8th Circuit af­firmed the dis­trict court’s de­termination that defen­dants negotiated for the sale of one kilo­gram of co­caine.  The court relied upon an FBI agent’s interpre­tation of coded conversations.  The agent stated that terms like “a gallon of paint” and “track” “van” and “tractor,” when used by the co-conspira­tors, indicated a kilogram of cocaine.  Defen­dants did not contest the fact that they were discussing cocaine.  This was not the case of a single off-hand comment being used as evi­dence of capability of producing a certain quan­tity of cocaine.  Here not only were there recurrent conversations in which one defen­dant spoke as if he were capa­ble of producing the negotiated amount, but there was evi­dence that the relation­ship between the de­fendants was friendly and suggested a mutual trust from which it could be inferred that one defendant had reason to believe that the other defendant could supply the negoti­ated amount.  U.S. v. Hughes, 970 F.2d 227 (7th Cir. 1992).

 

7th Circuit affirms that defendant in­tended and had ability to purchase 10 ki­los of cocaine. (265) Defendant and his co-conspirator negotiated to pur­chase 10 kilo­grams of cocaine from an under­cover agent.  At one point, the deal appeared to be can­celled because the parties were unable to agree upon a place for the transaction to take place.  How­ever, the undercover agent called the co-conspirator di­rectly and arranged to sell the first kilogram of the 10 kilo­gram pur­chase.  Defendant argued that he should only have been sentenced on the basis of his intent to buy one kilo­gram, because the 10-kilogram deal had been abandoned at the time of his ar­rest.  The 7th Circuit rejected this ar­gument.  Overwhelming evi­dence re­vealed that de­fendant had both the in­tent and the ability to buy 10 kilograms of cocaine.  His co-conspirator had $109,000 in cash at the time of his ar­rest, meaning that defendant, through the co-con­spirator was capable of pur­chasing all 10 kilo­grams.  His intent to do so was demonstrated by his very specific ne­gotiations as to price and amount.  U.S. v. Cea, 963 F.2d 1027 (7th Cir. 1992).

 

7th Circuit affirms that defendants agreed to pur­chase 500 pounds of marijuana. (265) The 7th Cir­cuit af­firmed that defendants agreed to pur­chase 500 pounds of marijuana from undercover agents, despite the fact that they only brought to the meeting enough cash to pay for 80 pounds.  It was clear from defen­dants’ conversation with the undercover agents that they wanted to purchase 500 pounds, but contested the terms of payment.  Later conversations confirmed that the defendants wanted 500 pounds, but were having trouble raising the down payment. The cash de­fendants brought to the meeting was the down payment for the full 500 pounds.  U.S. v. Burrell, 963 F.2d 976 (7th Cir. 1992).

 

7th Circuit holds defendant accountable for quantity of cocaine he agreed to bro­ker. (265) Defendant contended for the first time on ap­peal that the government failed to demonstrate that he conspired to distribute 20 kilograms of cocaine, since the transaction in question involved only nine kilograms of cocaine.  The 7th Circuit affirmed, since de­fendant initially negotiated for the sale of 20 kilo­grams of cocaine.  Although at his arrest defendant was not in a position to buy all 20 kilograms, and only arranged for the sale of nine, he did agree to act as a “broker” for the sale of all 20 kilograms and was planning to sell all of them.  U.S. v. Caban, 962 F.2d 646 (7th Cir. 1992).

 

7th Circuit affirms that kilogram under negotiation was part of same course of conduct as earlier drug sale. (265) Defen­dant sold four ounces of cocaine to a DEA agent.  Several times during the next month the agent met with defendant to negotiate the pur­chase of a kilogram of cocaine.  On the date of the proposed kilo­gram transaction, defendant attacked the agent and at­tempted to steal his money.  The 7th Circuit affirmed the inclusion in defendant’s base of­fense level of the kilogram which defendant promised to supply the DEA agent.  Defendant admitted that he planned to deliver the kilogram to the agent, but was unsuccessful in finding his source.  A confidential informant told the agent that defendant could obtain kilogram quantities of cocaine.  Defendant’s attempt to sell the kilogram of co­caine grew out of the earlier four ounce sale, and thus was part of the same course of conduct or common scheme or plan as the four ounce sale.  U.S. v. Bald­win, 956 F.2d 643 (7th Cir. 1992), appeal after remand, 5 F.3d 241 (7th Cir. 1993).

 

7th Circuit reverses offense level calculation based upon de­fendant’s statement that he could supply addi­tional cocaine. (265) Defen­dant supplied one kilogram of cocaine to a co-conspirator, who had been expecting two kilo­grams.  Defen­dant assured him that he would get the additional kilogram, and stated “if you want, even ten more I can get.”  The 7th Circuit reversed the calcu­lation of defendant’s offense level based upon the ten kilograms mentioned by defendant.  De­fendant’s single comment was not sufficient to establish that the conspir­acy had as its goal the distribution of 10 kilograms of co­caine.  Such an amount was never men­tioned to the un­dercover purchaser, there was no evidence of other buy­ers for such an amount, no price had been set or even quoted, and there was no evidence that defendant had in his posses­sion, or had access to that amount of cocaine.  U.S. v. Ruiz, 932 F.2d 1174 (7th Cir. 1991).

 

7th Circuit affirms sentence based on amount of co­caine de­fendant negotiated to sell. (265) The evi­dence showed that a co-defendant ar­ranged to sell eight kilo­grams of cocaine to a “buyer” represented by a confiden­tial informant and that the co-defendant telephoned defen­dant, his regular supplier of cocaine, who agreed to supply the eight kilograms.  The next day, defendant de­livered only five kilograms.  The co-defen­dant told the undercover agent posing as the buyer that he could de­liver the remaining three kilograms by 5 p.m. that day.  The 7th Circuit held that this was sufficient for the dis­trict court to conclude that defendant conspired to dis­tribute eight kilograms of co­caine, and that defendant could supply the re­maining amount of cocaine.  U.S. v. Macias, 930 F.2d 567 (7th Cir. 1991).

 

7th Circuit holds that negotiated but undeliv­ered amount of heroin was properly counted in determining sentence. (265) Defendant ar­gued that the sentencing court improperly con­sidered negotiated but undelivered amounts of heroin in cal­culating the amount of drugs in­volved in his case.  The aborted transaction was not the subject of a substantive drug count, although it was al­leged as an overt act in fur­therance of the conspiracy.  The 7th Circuit held that the district court properly in­cluded the negotiated amount, holding that the applica­tion note to guideline § 2D1.4 re­quired the sen­tencing court to base its calcula­tion on the amount nego­tiated.  U.S. v. Buggs, 904 F.2d 1070 (7th Cir. 1990).

 

7th Circuit holds that negotiations for kilo of cocaine were “clearly related” to the one ounce in the count of conviction. (265) Defendant pled guilty to distributing one ounce of cocaine.  In sentencing him to four years, the court found that negotiations for the sale of a kilo of cocaine were “clearly related” to the conduct in the count of conviction.  The 7th Circuit af­firmed, ruling that the courts use of the term “clearly related” was synonymous with the lan­guage of § 1B1.3(a)(2).  Under that sec­tion, it was proper to consider the kilo in light of de­fendant’s admission during the guilty plea colloquy that he agreed to supply the kilo.  U.S. v. Vopravil, 891 F.2d 155 (7th Cir. 1989).

 

8th Circuit holds defendant accountable for drugs involved in aborted transaction. (265) Defendant agreed to sell five ounces of cocaine and five ounces of methamphetamine to an informant. Although defendant said he could do the deal that night, the informant delayed it until the next day. However, the leader of the con­spiracy, angry because another conspirator discussed the deal over the phone, later terminated the transaction. The Eighth Circuit held that defendant and a co-conspirator were properly held accountable for the drugs involved in the aborted deal. An actual agreement was made for the drugs, and defendant assented to the transaction. Even if the leader ultimately “deep-sixed” the deal, the district court properly attributed these amounts to defendant. Defendant did not show that he was incapable of providing the full ten ounces. Defendant told the informant that he wanted to do the deal that night. The fact that searches failed to uncover the 10 ounces did not prove that defendant could not have produced the drugs. Defendant told the informant that he had meth available in four-ounce increments and that he could supply the informant with as much as he needed. Brown v. U.S., 169 F.3d 531 (8th Cir. 1999).

 

8th Circuit reverses where court failed to explain rejecting government’s drug quantity concession. (265) The PSR recommended that the court find defendant accountable for 150 to 500 grams. At senten­cing, however, the prosecutor said the evidence showed only 50 to 150 grams. The Eighth Circuit held that the district court clearly erred in holding defendant account­able for between 150 and 500 grams of crack. Although the court was not bound by the government’s concession, the court did not articulate any reason for rejecting it, or even clearly state that it was rejecting the concession. Once a defendant objects to a factual allegation in the PSR, the court must make a finding or determine that no such finding is necessary because it will not be taken into account in sentencing. Here, the government introduced no evidence that defendant was responsible for over 150 grams of crack, and conceded that the trial testimony was insufficient to establish that fact. U.S. v. Brown, 156 F.3d 813 (8th Cir. 1998).

 

8th Circuit bases sentence on intended rather than actual conduct. (265) Defendant arranged for a confidential informant to purchase methamphetamine from his source. The source agreed to sell the informant 3 pounds, and was arrested after the sale of the first pound. A later lab test revealed that the substance the source had attempted to sell was amphetamine rather than methamphetamine. The Eighth Circuit held that defendant was properly held accountable for methamphetamine. The agreement between the informant and the source was clearly for methamphetamine. Defendant intended to aid and abet a transaction involving methampheta­mine, not amphetamine. The guidelines base defendant’s sentence on intended conduct rather than actual conduct. The fact that the supplier delivered amphetamine rather than methamphetamine was merely fortuitous. U.S. v. Lopez, 125 F.3d 597 (8th Cir. 1997).

 

8th Circuit sentences for five kilos even though amount in reverse sting was less. (265) Defendant was arrested after attempting to buy 5 kilograms of cocaine from a confidential informant. Although the informant testified that 28 kilograms were involved in previous trans­actions, the district court found the testimony not sufficiently reliable. Nevertheless, even though the amount in the reverse sting was slightly less than 5 kilos, the court attributed between 5 and 15 kilograms to defendant, reasoning that defendant was at least 5% culpable for the previous 28 kilograms. Alternatively, he was responsible for 5 kilograms because that’s what he intended to buy. The Eighth Circuit rejected as “arbitrary” the district court’s attribution of 5% responsibility for the earlier transactions. But it held that defendant was properly accountable for five kilograms of cocaine under note 12 to § 2D1.1 because that was the amount he agreed to buy. The note plainly states that in reverse stings, the agreed-upon quantity determines the offense level. The panel found it unnecessary to decide whether  the exclusion in  Note 12 (for drug quantities a defendant is not reasonably capable of providing) was applicable to reverse stings. Here, defendant was reasonably capable of purchasing the five kilograms. U.S. v. Williams, 109 F.3d 502 (8th Cir. 1997).

 

8th Circuit finds defendants were not capable of buying two kilograms of cocaine. (265) An undercover agent offered to sell defendants cocaine for $16,500 per kilogram, or $15,000 per kilogram for three kilograms. When defendants arrived to purchase the cocaine, they had $26,000. The 8th Circuit held that because defendants did not have enough money to buy two kilograms, they could not be held accountable for two kilograms. The district court erred in relying on commentary stating that the weight in an uncompleted distribution should be attributed to the defendant. This applies when the defendant is the seller, not the buyer. Moreover, even if the commentary applied, the record showed that defendant did not intend to produce and was not reasonably capable of producing the negotiated amount of money. Had negotiations unfolded differently, the sellers may have agreed to transfer two kilograms for less. That did not happen here, however. U.S. v. Robinson, 22 F.3d 195 (8th Cir. 1994).

 

8th Circuit holds that defendant negoti­ated to sell undercover agent one kilogram of heroin. (265) The 8th Circuit affirmed that defendant negotiated to sell an under­cover agent one kilogram of heroin, and that this quantity was properly included in his base offense level.  By itself, defendant’s statements in a recorded conversation were ambiguous.  However, the conversation could not be interpreted in a vacuum.  The one kilogram amount came up on two occasions, and was in the context of quantity discussion initiated by defendant.  The one kilogram amount was not an “offhand statement,” or simply a response to the agent’s question about cost.  Defendant asked the agent how much heroin he wanted and represented that he could get the heroin.  Senior Judge Bright dissented. U.S. v. Smiley, 997 F.2d 475 (8th Cir. 1993).

 

8th Circuit finds insufficient evidence of drug quantity under negotiation. (265) Co-conspir­ators were sen­tenced based on a finding that they had 150 pounds of mari­juana available for distribution.  The district court relied on former application note 1 to section 2D1.4, which permits consideration of the weight under negotiation in an uncom­pleted distribu­tion.  The 8th Circuit ruled that the district court erred because there was no spe­cific negotiation or agreement to sell that marijuana.  The government must demonstrate the defendant ac­tually agreed to or negotiated for a sale of the con­tested amount.  How­ever, the court’s finding could possibly be supported by application note 2 to sec­tion 2D1.4, which permits the court to estimate the quantity involved when it finds that a greater amount was available for sale than was seized.  U.S. v. Gar­rido, 995 F.2d 808 (8th Cir. 1993).

 

8th Circuit holds that responsibility for negotiated drugs is not limited to attempts and conspiracies. (265) Application note 1 to former section 2D1.4 provides that if the defendant is convicted of an of­fense involving negotiation to traffic in a controlled sub­stance, the weight under negotiation shall be used to calculate the applicable amount.  The 8th Circuit rejected defendant’s claim that section 2D1.4 and its application note only apply to offenses that are at­tempts or con­spiracies.  By its terms, the note ap­plies whenever the defendant is convicted of an of­fense involving negotiation to traffic in a con­trolled substance.  U.S. v. Williams, 994 F.2d 1287 (8th Cir. 1993).

 

8th Circuit finds defendant responsible for cocaine to be sold by co-conspirator. (265) The 8th Circuit upheld the district court’s de­termination that defen­dant was responsible for five kilograms of cocaine that a co-con­spirator was to sell to an undercover agent.  Defendant did more than introduce the agent to the co-conspirator; he conspired to dis­tribute the cocaine.  Defendant served as a go-between for the two during extensive nego­tiations, was actively in­volved in coordinating the transaction, and was to be paid $10,000 for his services.  Defendant was rea­sonably capable of producing the five kilograms.  There was no sentencing entrapment, since defen­dant was predisposed to conspire to purchase the five kilograms.  U.S. v. Lewis, 987 F.2d 1349 (8th Cir. 1993).

 

8th Circuit finds defendant capable of purchasing negotiated quantity from un­dercover agent. (265) The 8th Circuit af­firmed that defendant was reasonably ca­pable of obtaining the kilogram of metham­phetamine, the kilogram of cocaine, and the 50 pounds of mari­juana he negotiated to pur­chase from an undercover agent.  Defendant initiated multiple discussions in which he ex­pressed a desire to obtain a kilogram of methamphetamine from the agent.  They had agreed upon a price, and the agent had agreed to “front” the methamphetamine.  The agent testified that defendant had suggested that he could move a kilogram of cocaine in a month’s time, and wanted to purchase that amount.  They agreed upon a price and the agent discussed fronting the cocaine to de­fendant.  The agent and defendant also dis­cussed an arrangement for partial payment on the marijuana.  U.S. v. Nichols, 986 F.2d 1199 (8th Cir. 1993).

 

8th Circuit holds defendant responsible for full quantity of marijuana discussed with seller. (265) At a meeting in Las Vegas, defendant told a potential seller that he wished to purchase marijuana and that he could handle up to 24 deliveries a year of 100 to 200 pounds each.  The seller told defen­dant he could provide him with 20 such de­liveries over the next year.  Defendant was ar­rested after receiving three deliveries totaling 446 pounds.  The 8th Circuit af­firmed hold­ing defendant responsible for between 1000 and 3000 kilograms of marijuana based upon the conversation in Las Vegas.  It was reason­ably foreseeable to defendant that the object of the con­spiracy would be the delivery of this larger amount of marijuana.  The district court specifically found the seller’s testimony to be credible.  A district court’s finding as to the credibility of a witness is “virtually unre­viewable on appeal.”  U.S. v. Adipietro, 983 F.2d 1468 (8th Cir. 1993).

 

8th Circuit affirms sentencing defendant for the five kilo­grams he promised to sup­ply. (265) Defendant con­tended that he should not have been sentenced for the five kilo­grams of cocaine which he never deliv­ered, but rather for the two and one-half gram sample which he supplied.  He ar­gued that he never intended to pro­duce the full five kilo­grams, but instead was going to steal the buyer’s money.  The 8th Circuit affirmed the sentence for the entire five kilo­grams.  De­fendant promised to find five kilograms on at least two occa­sions.  He had a government in­formant come to Florida help complete the deal.  When the infor­mant got there, defen­dant told him he was still working to­ward their goal.  The district court’s findings of in­tent and capabil­ity were not clearly erro­neous.  U.S. v. Riascos, 944 F.2d 442 (8th Cir. 1991).

 

8th Circuit holds that defendant’s response to agent’s ques­tion about cost of 2 ounces of co­caine did not amount to ne­gotiation. (265) “It was the agent who brought up the topic of two ounces of cocaine, and not even in the context of an­other sale.”  The only state­ment from the defendant was that two ounces would go for the same price as two one-ounce buys.  The 8th Cir­cuit expressed “grave concerns” that “an intolera­ble av­enue for abuse will be opened” if suggestions by the un­dercover agent about fu­ture sales were deemed to be “negotiation” for purposes of establishing the amount of drugs under the guidelines.  Accordingly, the court found that defendant’s response to the agent’s question did not amount to “negotiation” within the meaning of Application Note 1 to U.S.S.G. § 2D1.4.  U.S. v. Foley, 906 F.2d 1261 (8th Cir. 1990).

 

8th Circuit holds that record supported find­ing that defen­dant had possessed eight ounces of cocaine. (265) A drug defendant’s sentence was based upon a finding that he had possessed eight ounces of cocaine for distri­bution.  He ap­pealed, claiming that the proper amount should have been fixed at 6 ounces because the police had “fronted” him 2 ounces.  The 8th Circuit disagreed, finding that the record es­tablished that the defendant was receptive to the idea of acquiring another 2 ounces, and that the police officer did not offer to “front” the co­caine, but had merely informed the de­fendant that the cocaine was available.  U.S. v. O’Meara, 895 F.2d 1216 (8th Cir. 1990).

 

8th Circuit rules that amounts of drugs under negotia­tion may be considered in sentencing. (265) The 8th Cir­cuit held that the district court pro­per­ly applied § 2D1.4, Applica­tion Note 1, which al­lows amounts of drugs under negotiation to be considered in sen­tencing a defendant for an uncompleted trans­action.  U.S. v. Ehret, 885 F.2d 441 (8th Cir. 1989).

 

9th Circuit rejects argument that defendant lacked cash to pay for quantity used to set offense level. (265) Defendant arranged to buy 100 kilo­grams of cocaine from undercover officers. He arrived at the deal with a $170,000 in cash. At sentencing, he claimed that his sentence should not be based on the 100 kilograms that he negotiated to buy because $170,000 was not enough money to buy that much cocaine. The Ninth Circuit rejected this con­tention, finding that other evidence in the case showed that defendant intended to buy 100 kilo­grams and that the cash was only a down payment. U.S. v. Ross, 372 F.3d 1097 (9th Cir. 2004).

 

9th Circuit uses purity of drugs seized to estimate the purity of the remainder. (265) Defendant conspired to sell 6.8 kilograms of methampheta­mine. He displayed half of the negotiated amount and promised to deliver the entire 6.8 kilograms the following day. The police arrested him during the transaction and seized 3.2 kilograms, of which about 2.62 kilograms was pure methamphetamine. The Ninth Circuit held that the district court properly used the purity of the drugs actually seized to estimate the purity of the total quantity of drugs the defendant agreed to deliver. Thus, the district court was entitled to assume that the remaining 3.6 kilograms would be 80% pure methamphetamine and that the full 6.8 kilograms would contain about 5.5 kilograms of pure methamphetamine. This is in accord with the Seventh and Eighth Circuits in U.S. v. Jarrett, 133 F.3d 519, 529-31 (7th Cir. 1998) and U.S. v. Newton, 31 F.3d 611, 614 (8th Cir. 1994). The defendant may escape this presumption by proving that he never intended to deliver or was incapable of delivering the agreed-upon amount. But no such proof was offered here. U.S. v. Lopes-Montes, 165 F.3d 730 (9th Cir. 1999).

 

9th Circuit, applying Koon, permits downward departure for lack of knowledge of purity of drugs. (265) As the middle-man between the informant and the suppliers, defendant had no control over, or knowledge of, the purity of the methamphetamine he delivered. The district court ruled that it had no discretion to depart based on lack of knowledge of the purity of the drugs, but on appeal, the Ninth Circuit reversed, emphasizing that after Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996) courts may not create additional categories of factors that they deem inappropriate as grounds for departure. The factors expressly prohibited by the guidelines are few. The court noted that application note 14 to § 2D1.1 permits a down­ward departure under certain circumstances when a defendant’s own conduct or that of his co-conspirators results in an offense level greater than justified by his capability. This note did not apply to defendant, but neither did it “occupy the field.” Although application note 9 precludes an upward departure on the basis of unusually high purity, it says nothing about whether a district court can depart downward. The court said that what falls within the “heartland” of a guideline is within the discretion and special expertise of the district court in the first instance. The case was remanded to permit the district court to exercise its discretion. U.S. v. Mendoza, 121 F.3d 510 (9th Cir. 1997).

 

9th Circuit says Note 12 to 2D1.1 is retroactive because it clarifies drug quantity when negotia­ted amount is different. (265) Effective November 1, 1995, the Commission amended Application Note 12 to the Commentary to § 2D1.1 to state that the negotiated quantity of drugs should be used to determine the offense level unless the actual amount delivered more accurately reflects the scale of the offense. In this case, the defendants negotiated to sell 5 kilos but actually delivered only 4.643 kilos. The Ninth Circuit held that Application Note 12 is retroactive because it clarifies an ambiguity in the guidelines, and in this case the amount of cocaine seized more accurately reflected the scale of the offense than the promised 5 kilograms. Since this had the effect of reducing the base offense level for both defendants from 32 to 30, the case was remanded for resentencing. U.S. v. Felix, 87 F.3d 1057 (9th Cir. 1996).

 

9th Circuit permits departure for “sentencing entrapment” where defendant was pressured to sell more drugs. (265) Several cases have suggested that sentencing entrapment may warrant a downward departure, but in this case, the 9th Circuit became the first to actually authorize a downward departure. Defendant was a user and sometime seller of LSD, but he sold only to personal friends, and had never engaged in a deal even approaching the magnitude of the transaction for which he was convicted. The district court found that defendant was not predisposed “to involve himself in what turned out to be, from the standpoint of the sentencing guidelines, an immense amount of drugs.” The case was remanded to permit the district court to depart downward for sentencing entrapment. Judge Beezer dissented, arguing that sentencing entrapment should be limited to “reverse stings,” in accordance with commentary note 17 to Guideline §2D1.1. U.S. v. Staufer, 38 F.3d 1103 (9th Cir. 1994).

 

9th Circuit rejects claim of disparity even though codefendant was not sentenced for amount under negotiation. (265) Defendant claimed there was an unlawful disparity between his sentence and that of his co-defendant because he was sentenced based on the weight of cocaine under negotiation—30 kilos—while his codefendant was sentenced only for the nine kilos actually delivered. The 9th Circuit found no error, noting that “disparity in sentencing is not by itself, a sufficient ground for attacking an otherwise proper sentence under the guidelines.” Defendant could not rely on the factual findings made by the co-defendant’s judge because “[a]lthough unilateral collateral estoppel exists in the civil arena, we do not apply it in criminal cases.” U.S. v. Valdez-Soto, 31 F.3d 1467 (9th Cir. 1994).

 

9th Circuit says defendant must show both lack of intent and lack of capability to produce negotiated amount. (265) Defen­dant negotiated to sell methamphetamine to an undercover officer.  Unknown to the de­fendant, the substance was ephedrine.  Appli­cation Note 12 to Guideline section 2D1.1 says that the court should exclude any nego­tiated amount that the defendant did not in­tend to produce and was not reasonably ca­pable of producing.  In U.S. v. Barnes, 993 F.2d 680 (9th Cir. 1993), the 9th Circuit held that the burden is on the defendant to show “both lack of intent and lack of capability.”  Here, defendant was not capable of delivering methamphetamine because he had none.  However, the jury verdict foreclosed the con­clusion that he did not intend to sell methamphetamine. U.S. v. Steward, 16 F.3d 317 (9th Cir. 1994).

 

9th Circuit finds no sentencing entrap­ment where defendant was freely involved in reverse sting. (265) Defendant argued that sentencing on the basis of the amount under negotiation where the gov­ernment is the seller of the drugs is sentencing en­trapment.  In a footnote, the 9th Circuit re­jected the challenge be­cause defendant did not argue he was ac­tually en­trapped.  U.S. v. Barnes, 993 F.2d 680 (9th Cir. 1993).

 

9th Circuit places burden on defendant to show inability to produce total quantity. (265) De­fendant pled guilty to one count of conspiracy to dis­tribute cocaine in a reverse sting that specifically charged him with telling an undercover agent that he wanted to buy 50 kilos.  Defendant had negotiated for a total of 50 kilos costing $350,000 for each of two 25 kilo deliveries.  Defendant showed up with only $200,000 of the first $350,000 but the government gave him the 25 kilos and ar­rested him.  The 9th Cir­cuit found that in pleading guilty defendant conceded the amount under negotiation was 50 kilos, but this did not preclude him from establishing that he was not reasonably capable of pro­ducing the money to buy the entire 50 kilos.  However, the court found that defendant has the burden of proving he or she was not rea­sonably capable of producing the negoti­ated amount.  The government need only prove the nego­tiated amount and the burden shifts to the de­fendant to establish that he or she could not reason­ably pro­duce that amount.  U.S. v. Barnes, 993 F.2d 680 (9th Cir. 1993).

 

9th Circuit relies on negotiated amount of drugs in “reverse sting” operation. (265) The undercover agent delivered slightly less than the two kilos that the defendant’s cocon­spirator contracted to pur­chase.  Defendant argued that in a “reverse sting” op­eration, where the government is the seller, the of­fense level should be based on the quantity of drugs delivered, rather than the negotiated amount.  This would have reduced defen­dant’s sentence by two of­fense levels.  The 9th Circuit rejected the argument, following the decisions in U.S. v. Adames, 901 F.2d 11, 12 (2nd Cir. 1990) and U.S. v. Brooks, 957 F.2d 1138, 1151 (4th Cir.).  Liability for a con­spiracy turns on the object rather than on the fruits of that conspiracy.  U.S. v. Frazier, 985 F.2d 1001 (9th Cir. 1993).

 

9th Circuit calculates offense level based on amount of drugs for which defendant negoti­ated. (265) Defendant ar­gued that the dis­trict court erred in basing his offense level on the amount of cocaine for which he negotiated (50 kilo­grams) rather than the amount he actually possessed (49.97 kilo­grams).  The extra .03 kilograms raised his offense level from 151 to 188 months.  Relying on application note 1 to § 2D1.4, the 9th Circuit held that the judge properly used the 50 kilogram amount because this was the amount for which the de­fendant negotiated.  U.S. v. Molina, 934 F.2d 1440 (9th Cir. 1991).

 

9th Circuit upholds sentence based on amount of drugs ne­gotiated by co-conspirator. (265) Defendant pled guilty to conspiracy.  U.S.S.G. § 4D1.4 provides: “If a defen­dant is con­victed of a conspiracy, the offense level shall be the same as if the object of the conspiracy . . . had been com­pleted.”  The Commentary ex­plains that “the weight un­der negotiation in an uncompleted distri­bution shall be used to cal­culate the appropriate amount.”  Accordingly, the 9th Circuit upheld the district court’s re­liance on the 500 grams which the informant agreed to purchase from the de­fendant’s co-conspirator, “regardless of the amount of co­caine actually delivered.”  U.S. v. Alvarez-Car­denas, 902 F.2d 734 (9th Cir. 1990).

 

10th Circuit holds reverse sting defendant accountable for drugs he agreed to buy. (265) Defendant agreed to buy one kilogram of cocaine from a government informant. The informant brought a dummy package contain­ing only two ounces (.062 kilograms) to the transaction. The Tenth Circuit held that a reverse sting defendant is accountable for the drugs he agreed to buy. See Note 12 to § 2D1.1 (in a reverse sting, the agreed-upon quantity of the controlled substance more accurately reflects the scale of the offense because the amount actually delivered is controlled by the government, not defendant). Although defen­dant claimed he could not have agreed to purchase one kilogram because he had no money with him at the transaction, the inform­ant testified that he was “fronting” the drugs to defendant. The district court did not commit clear error by finding that defendant had agreed to purchase one kilogram of cocaine from defendant. U.S. v. Perez de Dios, 237 F.3d 1192 (10th Cir. 2001).

 

10th Circuit uses negotiated quantity unless defendant lacks both intent and ability to pay. (265) Defendants contended that there was no evidence that they intended to and could produce the negotiated price for two kilograms of cocaine. They brought only $6,190 into the hotel, which was not enough to buy even one kilogram at the agreed $15,000 per kilo price. The Tenth Circuit, assumed without deciding that note 12 to § 2D1.1 applies to reverse stings, but upheld using the negotiated quantity because defendants intended to obtain it. Negotiated drugs may be excluded under note 12 only if defendant lacks both intent and ability to obtain them. What counts is a defendant’s intent and ability to obtain the negotiated drugs, not his intent and ability to pay the negotiated price. A drug buyer who lacks the full purchase price may nonetheless intend to obtain the drugs by force or deception, or on credit or consignment. The record supported the inference that defendants intended to obtain the drugs and to worry about paying for them later, if at all. U.S. v. Hardwell, 80 F.3d 1471 (10th Cir. 1996).

 

10th Circuit reverses, finding defen­dant did not agree to sell additional cocaine. (265) An INS agent offered to pay for the 10 ounces of cocaine that de­fendant had previ­ously supplied to the informant.  The agent also told defen­dant he wanted to pur­chase an addi­tional pound of cocaine.  The 10th Cir­cuit held that the additional pound of cocaine could not be included in defen­dant’s base of­fense level, because there was insufficient evidence to find that defendant and the agent negotiated for the sale of a pound of cocaine.  Nothing in the recorded conversation indi­cated an affirmative response by defendant to supply an additional pound of cocaine.  The court did not doubt the agent’s hon­est belief that he had reached an agree­ment for the sale of an additional pound of cocaine, but the agent’s subjective be­lief was not suf­ficient.  The evidence must establish a ne­gotiation, which at a minimum requires proof that de­fendant intended to participate in an addi­tional transaction. U.S. v. Reyes, 979 F.2d 1406 (10th Cir. 1992).

 

11th Circuit includes promised drug quantity in sentencing calculation. (265) Defendant sold small quantities of crack to an undercover detective on several occasions. The detective then said he wanted to buy a half-kilo of cocaine, and they discussed a purchase price. When the purchase was supposed to occur, defendant told the detective she had sold half the crack and would need an hour to “cook” another quarter-kilo of crack for him. At their meeting later that day, defendant took the money and drove away, saying she had to get the crack. Defendant’s associate then accused defendant of being an undercover cop, and approached a nearby surveillance vehicle attempting to find out what the driver was doing. When the driver did not respond, the associate placed a telephone call. Defendant then returned with the money, telling the detective she could not do the deal. The Eleventh Circuit found that defendant was properly held defendant accountable for the promised half-kilogram of cocaine. Even assuming the interpretation of Note 12 most favorable to defendant, defendant could not show that the sentence was “manifestly unjust.” Defendant’s statements to the detective, especially her quotation of the market price for the half-kilo, her inquiry about how the detective preferred to have the crack packaged, and her statement that she needed an extra hour to cook the rest of the crack, coupled with the evidence of defendant’s successful drug transactions, sufficiently demonstrated that defendant had the ability to deliver on her promise to produce 500 grams of crack cocaine. U.S. v. Williams, 144 F.3d 1397 (11th Cir. 1998).

 

11th Circuit attributes full amount of cocaine defendants believed they were stealing. (265) Defendants were caught in a reverse sting operation attempting to steal duffel bags that they believed contained 300 kilograms of cocaine. They argued that they should not be sentenced for 300 kilograms because the duffel bags did not actually contain cocaine and they did not have the capacity to hold 300 kilograms. The Eleventh Circuit held that defendants were properly sentenced for the full 300 kilograms of cocaine they expected the duffel bags to contain. Each defendant knew that the scheme involved stealing 300 kilograms of cocaine. The court properly attributed 300 kilograms to each defendant. U.S. v. Chirinos, 112 F.3d 1089 (11th Cir. 1997).

 

11th Circuit rejects note 12 where there were actual drug deliveries. (265) Defendant was convicted of using a telephone to facilitate a crack cocaine conspiracy. He argued that because he did not deliver the crack cocaine, note 12 to § 2D1.1 applied to him. The Eleventh Circuit disagreed. Note 12 provides that the agreed-upon quantity of controlled substances shall be used to determine an offense level unless that sale is completed and the amount delivered more accurately reflects the scale of the offense. However, because defendant assisted in the actual delivery of 58.9 grams of cocaine base, the district court correctly calculated his offense level at 32. U.S. v. Mertilus, 111 F.3d 870 (11th Cir. 1997).

 

11th Circuit says for possession count defendant was only accountable for cocaine he actually possessed. (265) Defendant and his associates attempted to steal three bales of cocaine weighing 146 kilograms that the government had placed in a warehouse as part of a sting operation. Police intervened after defendant took one of the bales of cocaine from the warehouse. He pled guilty to conspiracy to possess cocaine with intent to distribute, possessing cocaine with intent to distribute, and firearms charges. The 11th Circuit held that on the possession count, defendant could be held accountable only for the one bale of cocaine he possessed; however, on the conspiracy count, he could be held accountable for the full 146 kilograms. Defendant would have taken all 146 kilograms absent police intervention. U.S. v. Taffe, 36 F.3d 1047 (11th Cir. 1994).

 

11th Circuit says scope of mandate was not exceeded in resentencing for marijuana conspiracy. (265) Defendant arranged to sell between 128 and 150 pounds of marijuana. He only delivered a half pound sample before he was arrested. The district court originally held defendant accountable for the 1000 pounds of marijuana his suppliers had in the area. The 11th Circuit, in U.S. v. Jones, 11 F.3d 166 (11th Cir. 1993) (Jones I), vacated and remanded in light of U.S. v. Crespo, 982 F.2d 483 (11th Cir. 1993). On remand, the district court found that, in addition to the 128-150 pounds, defendant had earlier conspired to distribute 144 pounds of marijuana. The 11th Circuit held that the district court did not exceed the scope of its mandate in Jones I by including previous excluded quantities of marijuana in defendant’s sentence. Crespo did not require defendant to be sentenced only for the sample he delivered. The district court properly determined that defendant intended to produce and was able to produce the negotiated 128-150 pounds of marijuana. U.S. v. Jones, 32 F.3d 1512 (11th Cir. 1994).

 

11th Circuit remands for findings on de­fendants’ intent and ability to produce ne­gotiated drugs. (265) One of the defendants agreed to obtain and sell one and one half ounces of cocaine base to an under­cover agent.  Instead, he robbed the agent.  Never­theless, the district court attributed the one and a half ounces to both defendants.  The 11th Circuit re­manded because the district court made no findings on whether defen­dants intended to produce that quantity of cocaine base or were reasonably capable of producing it.  The absence of explicit factual find­ings precluded meaningful appellate re­view.  U.S. v. Tillman, 8 F.3d 17 (11th Cir. 1993).

 

11th Circuit finds agreement unnecessary to hold defendant responsible for drug ne­gotiation. (265) After defendant sold an under­cover agent some co­caine, the agent asked about the price of a quarter-pound of cocaine.  Defendant re­sponded that he could sell the agent a quarter-pound that day for $4800.  The 11th Circuit af­firmed that this discus­sion was sufficient to hold defendant account­able for the additional quarter-pound.  The additional quan­tity was “under negotia­tion.”  The guidelines do not require a completed sale or an agreement to sell.  Only an of­fer to sell is required.  U.S. v. Williams, 994 F.2d 1287 (8th Cir. 1993).

 

11th Circuit says negotiation and sale at almost same time were same course of conduct. (265) Defendant argued that his negotiation to sell an un­dercover officer a quarter-pound of cocaine was an “afterthought” rather than part of the same course of conduct as his sale of 3.5 grams of cocaine, and therefore it should not be in­cluded in his base of­fense level.  The 11th Circuit affirmed that the negoti­ation was part of the same course of conduct as the actual sale, since it in­volved similar conduct that oc­curred at almost the same time.  U.S. v. Williams, 994 F.2d 1287 (8th Cir. 1993).

 

11th Circuit finds defendant incapable of producing negotiated amount of cocaine. (265) At various times government agents at­tempted to buy cocaine from defendant.  De­fendant spoke of sources he had in Atlanta and Miami, and said that these sources had five kilos of cocaine.  Defendant deliv­ered to one agent a sample weighing one-third of a gram.  Additional negotiations followed with a pro­posed delivery by defendant of five kilos to be ob­tained from a particular supplier.  The agents did not wait for a delivery, how­ever.  Fearing that defendant was dangerous, they arrested him.  The 11th Circuit affirmed the district court’s ruling that defendant was not reasonably capable of supplying the nego­tiated quantity of cocaine.  He was properly sentenced on the basis of the one-third of a gram actually deliv­ered.  The supplier testi­fied at de­fendant’s trial that he decided not to go through with the deal because he became suspicious.  The fact that the proposed sup­plier was sentenced based on three kilograms of cocaine did not constitute proof of de­fendant’s ca­pacity to produce that quantity.  U.S. v. Crespo, 982 F.2d 483 (11th Cir. 1993).

 

11th Circuit affirms sentence based upon full amount under negotiation. (265) De­fendant con­tested the district court attribut­ing two kilograms of cocaine to him because he claimed he and his co-conspirators agreed to purchase, and were only ca­pable of pur­chasing, a quarter kilogram.  The 11th Cir­cuit rejected this argument, since the evi­dence showed that defendant negotiated a purchase of two kilograms from the confiden­tial informant and indi­cated an interest in later purchasing up to six kilo­grams.  At the time of the actual transaction, how­ever, the defendants only had enough money on hand to purchase one quarter kilogram of cocaine. U.S. v. Gates, 967 F.2d 497 (11th Cir. 1992).

 

11th Circuit upholds sentence based on amount of co­caine negotiated for. (265) De­fendant argued that the sentencing court erred in finding that a cocaine conspir­acy involved three kilos, rather than the six ounces actu­ally delivered. Defendant had “enthusiastically agreed” with a co-defendant’s representation to an undercover agent that the co-defendant could obtain three kilos from a Florida source.  Other evidence showed that a three kilo trans­action was contemplated.  Based on these facts, the 11th Circuit held that the sentencing court was not clearly erroneous in finding the “co-defendant was reasonably capable of producing the negotiated amounts,” and therefore cor­rectly used the three kilo figure in sentencing.  U.S. v. Alston, 895 F.2d 1362 (11th Cir. 1990).

 

D.C. Circuit holds that use of informant to cook crack did not mean defendant was “not reasonably capable” of providing crack. (265) On several occasions, defendant sold powder cocaine to an undercover officer. When the officer asked defendant to “rock up” the cocaine, defendant asked a friend for assistance. Unbeknownst to defendant, the friend was working as a government informant in cooperation with the undercover officer. Although the informant declined to perform the conversion himself, he put defendant in contact with another unidentified individual, who cooked the powder cocaine into 60.3 grams of crack in defendant’s presence. Defendant argued that under Note 12, the court was require to exclude the 60.3 grams of crack from its sentencing calculation because without the informant’s assistance, he was not “reasonably capable” of providing the crack. The D.C. Circuit ruled that Note 12 was inapplicable to defendant’s case, since he actually provided the disputed drug quantity. The note is designed to apply where the amount of the drug agreed upon and the amount of the drug actually delivered were different. In this case, the two were exactly the same. Defendant’s argument was really just a sentencing entrapment or sentencing factor manipulation argument consistently rejected by this court.  U.S. v. Hinds, 329 F.3d 184 (D.C. Cir. 2003).

 

D.C. Circuit says drug price and credit terms in reverse sting did not warrant departure. (265) Defendant made a deal with undercover DEA agents to buy three kilograms of cocaine at a unit price of $20,000 each. At the time, the market price for a single kilogram of cocaine was above $27,000. On the day of his arrest, defendant received two kilograms and paid about $20,000 in cash and $1500 worth of heroin, with the balance to be paid on the second kilogram once he had sold the drugs. In addition, defendant agreed to come back the following day to pay for and collect the third kilogram. Note 14 to § 2D1.1 authorizes a departure in a “reverse sting” where the government agent set a price that was “substantially below the market value” for the drugs, leading the defendant to purchase a “significantly greater quantity” that he otherwise could have purchased. The district court refused to depart under Note 14, and the D.C. Circuit affirmed, agreeing that defendant failed to show that the terms of sale were substantially more favorable than in the market generally. Defendant received a discounted bulk-rate price of $20,000 per kilogram, and bore the burden of showing the discount offered here did not conform to market realities. The credit terms, allowing defendant to walk away with $40,000 worth of cocaine while only paying about $20,000 in cash and $1500 in other drugs, did not change the analysis. “Fronting,” i.e. a sale of credit with the balance expected to be paid from street sales revenues, is a common practice in the drug market. U.S. v. Goodwin, 317 F.3d 293 (D.C. Cir. 2003).

 

D.C. Circuit says no agreement is necessary for drugs to be “under ne­gotiation.” (265) Defendant argued that drug quantities he offered to sell an undercover agent were not “under negotiation” because they never reached an agree­ment. The D.C. Circuit held that note 12 clearly requires only discussion, not an agreement or com­pleted transaction. All except one of the offers were accompanied by discus­sion and hence nego­tia­tion. Moreover, in light of the extensive course of deal­ings between the parties it was of no moment that precise terms, like those relating to payment or delivery, were not always fixed during the negotia­tions. The key was that defendant was apparently willing and able to produce the quantities and therefore the court was justified in including them as rele­vant conduct. Defendant also chal­lenged the court’s finding that he was capable of producing the additional quantities. However, the government was not required to prove capacity since defendant admitted he had the intent to produce the additional quan­tity. Under former note 12 the govern­ment was only required to show that defendant had either the intent or the capacity to produce them. U.S. v. Lay­eni, 90 F.3d 514 (D.C. Cir. 1996).

 

D.C. Circuit rejects ex post facto claim where “negotiated amount” was required to be used before 1992. (265) In 1991, defendants sold crack to a police agent. The 1994 version of note 12 to § 2D1.1 in effect when defen­dants were sentenced required the drug quantity to be based on the weight of drugs under negotiation. Defendants argued that applying this note to them violated the ex post facto clause. The D.C. Circuit found no ex post facto violation, because former note 1, from which note 12 was taken, applied to substantive offenses before the 1992 amendment. There could be no prejudice from simply moving the note 1 text into note 12. U.S. v. Ynfante, 78 F.3d 677 (D.C. Cir. 1996).

 

D.C. Circuit uses two ounces defendants agreed to sell even though only one was sold. (265) Defendants agreed to sell two ounces of crack to a police agent. However, there was not enough money in the police station’s confidential funds buy both. The agent offered to buy only one ounce, and defendants agreed. Defendants were arrested after selling that one ounce. The D.C. Circuit sentenced defendants based on the two ounces of crack they initially agreed to sell. Note 12 to § 2D1.1 says that in an offense involving negotiation to traffic in drugs, the weight under negotiation in an uncompleted distribution shall be used to calculate drug quantity. It was reasonable to describe an agreement to sell two ounces as “uncompleted” when two ounces were never produced, irrespective of the cause. There was no reason to distinguish this case from a situation where the deal simply falls through. U.S. v. Ynfante, 78 F.3d 677 (D.C. Cir. 1996).

 

Commission clarifies calculation of negotiated amounts. (265) In Amendment 518, effective November 1, 1995, the Commission revised Application Note 12 to §2D1.1 to state that “in an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of 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.”  However, if the defendant “establishes that he or she did not intend to provide, or was not reasonably capable of providing, the agreed quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.”

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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