*1 III. reasons, foregoing we believe
For the discre-
the district court did not abuse its revoking supervised Cofield’s re-
tion
lease, and we AFFIRM its decision. America,
UNITED STATES of
Plaintiff-Appellee, Quíntela MUNOZ,
Zaferi Defendant-
Appellant.
No. 99-5652. of Appeals,
United States Court
Sixth Circuit. Sept.
Argued:
Decided and Filed: Nov. *2 Paul (argued), L. W.
Gregg Sullivan (briefed), Assistant United Laymon, Jr. Tennessee, Chattanooga, Attorneys, Plaintiff-Appellee. briefed), (argued F. David Ness Federal Defender Services Eastern Inc., Tennessee, Tennessee, Chattanooga, Defendant-Appellant. MERRITT, KENNEDY, and Before: n GILMAN, Judges. Circuit KENNEDY, J., opinion delivered J., court, MERRITT, joined. in which GILMAN, 416-17), delivered (pp. J. concurring opinion. separate OPINION KENNEDY, Judge. Munoz was arrested Zaferino Defendant conspiracy on one count and indicted and .methamphetamine. distribute cocaine indictment, guilty to the pled that he did explicit reservation with the deliver metham- conspiring admit to only admitted to the cocaine phetamine but that was deliv- judge sentenced defen- ered. part prison, to 121 based months did con- on his conclusion methamphetamine. spire to distribute n validity defen- This court reviews' For and his sentence. plea dant’s below, forth we AFFIRM reasons set enhancement court’s sentence the district in the on role based deter- REVERSE but should mination that the sentence REMAND to We aof for determination the district court opinion. this consistent with new sentence prior not involved trade to his I. employment with Cisneros. 10, 1998 August arrest on Defendant’s 27, 1998 an On October indictment was undertaken investigation from an resulted filed Eastern District Tennessee Investigation Bureau of by the Tennessee charging through that from October 1997 *3 Cleveland, Tennessee Police De- and the 1998, and August defendant others con- investigation produced partment. 21 spired to commit violations of U.S.C. taped between defendant conversations 841(a)(1) § by unlawfully distributing co- a informant and between and confidential methamphetamine caine in violation and of defendant, in- coconspirators his and the 11, 21 846. December U.S.C. On contacts, During formant. these defen- pled guilty conspiring to to de- dant told the informant that he could de- liver a cocaine and controlled substance pounds “crystal,” they of and liver ten but informed court that he denied dis- “crys- pounds of two of discussed sale tributing It methamphetamine. is undis- $15,000 price per tal” at an of agreed puted drug actually that distributed pound. Defendant referred to the need amphetamine, methamphetamine. was with his regarding to confer “bosses” type drugs determination of the to transaction. Defendant terms of calculating in the penalty used was eventually told the informant that a third sentencing. reserved for Flores, party, Jose Andre would deliver A presentence report prepared by was drugs. 'the officer, probation recommending that Flores delivered 804.8 defendant be sentenced based on the amine to the informant who made a down deliver, methamphetamine he intended to payment drugs on the to Flores. Defen- rather than the ac- dant the informant had further con- and tually probation delivered. The officer cocaine, regarding versations the sale of found that defendant should receive a eventually by and cocaine was delivered three-level enhancement under U.S.S.G. and another individual Flores known as 3Bl.l(b) playing managerial for role in (cid:127)Tio. Defendant continued to be involved offense, adjustment and an downward regarding payment conversations for acceptance responsibility. for Defen- original delivery amphetamine. Ac- adjusted dant’s offense level was level 32. involved, agent cording to an undercover history, Defendant had no criminal but referred repeatedly origi- ineligible was found due to his managerial “crystal,” slang nal which delivery as role in the of the addition, $15,000 safety valve provisions of U.S.S.G. per pound appropriate price for a 5C1.2, might which have reduced his pound of methamphetamine. guideline level two. His sentencing range was thus 121 to 151 10, August agents On with months. Investigation, Federal Bureau of the Ten- Investigation
nessee Bureau of
and offi-
II.
Cleveland,
cers with the
Tennessee Police
Department arrested
he
against
defendant when
The one count indictment
defen-
arrived
to collect
drug
charged specifically
Tennessee
money.
combine,
confederate,
confessed to his in-
conspire,
“did
and
drug trafficking
volvement in the
and
agree
told
commit violations of Title
Code,
841(a)(1),
law enforcement that he worked for Fran- United States
Section
is,
cisco
in migrant farming
unlawfully, knowingly,
Cisneros
busi-
intentionally
ness and that he became
authority
involved
and without
distribute cocaine
trade
after
asked him
methamphetamine,
Cisneros
Schedule II con-
substances;
in selling
“crystal.”
assist
some
He was
trolled
all in violation of Title
Code,
United
Section
846.” De- S.Ct.
(2000),
L.Ed.2d 435
pled
fendant
indictment,
to this
“[ojther
but Supreme Court held that
than the
explicit
with the
reservation
made
his
fact of a prior conviction, any fact that
attorney that “Mr. Munoz ... stands will-
increases the penalty for a
beyond
crime
ing to admit that he distributed cocaine
the prescribed statutory maximum must
amphetamine.
However, he cannot be submitted to a jury,
proved
beyond
and will not
conspired
admit
to a reasonable doubt.”
at-,
Id.
(Notice
distribute methamphetamine.”
of
tory
matter
factual
finding as a
in
court erred
from zero
ranges
of cocaine
grams
managerial role
played
statuto-
imprisonment.
twenty years
conspiracy to distribute.
grams
804.8
of
for distribution
ry penalty
U.S.C.
under 21
methamphetamine,
of
A.
im-
forty years
841(b)(1)(B),
five to
is
§
he should
argues that
for
Defendant
statutory penalty
prisonment.1
actually
drug he
only for
punished
804.8
distribution
delivered,
to the
opposed
as
zero to
drug,
III
amine, a Schedule
to deliv
conspired
may
intended
have
21 U.S.C.
under
twenty
years,
issue turns
of this
The resolution
er.
pled
841(b)(1)(C). Defendant
sentence
the final
the applicability
amount
specified
to deliver
12 to
2D1.1,
alone,
the cocaine
For
of cocaine.
Sentencing Guideline
this case. U.S.
sentence
a maximum
authorizes
statute
level
offense
base
establishes
2D1.1
twenty years.
including attempt
crimes
drug related
months, approxi-
to serve
sentenced
note 12
Application
conspiracy.
sentence
Defendant’s
years.
mately ten
reads,
rele
and now
amended
statutory maximum
exceed
did not
*5
part:
vant
to which
the indictment
portion of
the
to
agreement
judge’s
involving
In an offense
guilty.
validly pled
substance,
agreed-
the
of the
preponderance
a
controlled
determination
sell a
sub-
to dis-
the controlled
conspired
of
quantity
upon
evidence
the
than am-
determine
rather
be used to
shall
methamphetamine,
stance
tribute
did,
completed
is
penalty
the sale
increase his
level unless
not
offense
phetamine,
more accu-
statutory maximum
delivered
the amount
prescribed
the
and
beyond
of-
of the
grams of
scale
126.7
the
rately
distribute
reflects
to
however,
If,
not
the defendant
ruling is
....
Apprendi
the
fense
cocaine.
not intend
defen-
did
impact
not
that he or she
and does
establishes
applicable here
reasonably capa-
not
or was
provide,
to
dant’s sentence.
agreed-upon quanti-
the
providing,
of
ble
substance,
IV.
court
the
the controlled
ty of
de-
the offense level
exclude from
shall
however,
alleges
addition,
In
amount of controlled
the
termination
on two
erred
court
that
defendant establishes
that the
substance
ad-
issues
of the
independent
grounds,
provide
not intend
she did
that he or
calculating defendant’s
above, in
dressed
of
reasonably capable
provid-
not
or was
(A) that un-
claims:
sentence.
ing.
his sentence
Sentencing Guidelines
der
added).2
to the 1996
Prior
(emphasis
Id.
influenced
can be
applica-
amendment, the last sentence
not
meth-
actually delivered
amine
as follows:
read
12 instead
tion
thought was
note
that
amphetamine
that
12 to
application note
state
reads
§ 841
rence
to 21 U.S.C.
A 1998 amendment
1.
accurately re-
841(b)(1)(A) ap-
delivered more
"the amount
current
make the
would
offense,”
portion of
years to life
that
penalty
ten
the scale of
plicable with a
flects
statute
the 1997
says
but under
“unless ...
amount
imprisonment,
the note
grams meth-
804.8
applicable in this
the scale of
accurately reflects
delivered more
841(b)(1)(B).
amphetamine fell within
delivery
am-
Because
the offense.”
the intended metham-
than
phetamine rather
different
proposi-
concurring opinion cites a
2.
(cid:127)
merely
was
fortuitous
this case
phetamine in
12 for
application note
portion of
intentions, we
of modified
a result
and not
on
be
sentence should
that the
tion
portion
latter
that the
hold
amphetamine
solely because
analysis
here.
conducted
requires
Although
concur-
was the
delivered.
“However, where the court
that
finds
believes that the correct Ninth Circuit law
defendant did not
produce
intend to
is found in United
Steward,
v.
States
not reasonably capable
was
of producing where the Ninth Circuit said that a mis-
negotiated amount,
the court shall ex-
take of fact as to the controlled substance
guideline
clude from the
calculation the
carried was not a defense to knowing pos-
amount that it finds the defendant did not
(Tr.
session.”
Sentencing Hr’g, p.51.) But
produce
intend to
not reasonably
was
because the Steward court relied explicitly
capable
added).
of producing.” (emphasis
preamendment
conjunctive lan-
guage
of application note
at least
Cruz-Mendoza,
United States v.
portion of
ruling
its
longer
no
(9th
applicable.
Cir.1998),
F.3d
The district court’s reliance on
Ninth
Steward
Circuit addressed this amendment
improper
thus
to the
2D1.1,
extent that
Steiv-
stating
despite
ard relied
preamendment
on the
prior
cases
language
the amendment holding that
of application note 12.
“application note 12
‘conjunctive,
disjunctive’ and, therefore,
...
the defen
prosecution
points out in its brief
to show
had
lack
both
of intent and
Circuit,
the Eighth
in United
lack of capability,” the amendment “substi
Lopez, 125 F.3d
Cir.1997),
held
tute[d] the word ‘or’ for the word ‘and’
the defendant should be sentenced
[and thus
constituted]
substantive
based on methamphetamine
“[t]he
because
change.”
Id. The court concluded that
fact that the
...
substance
delivered was
under
the amended application note
amphetamine and not methamphetamine
court
would
“free
conclude that the
was merely fortuitous.” Id. at 600. Al
conspiracy charged ... was not reasonably
though
Lopez
holding would support
capable of providing
agreed upon
[the
the prosecution, the foundation of
opin
*6
drugs],” and the base offense level would
ion is -unpersuasive
Lopez
because the
be reduced.
Id. The Ninth Circuit’s rea
court
on
relied
Steivard without acknowl
soning in
logical
Cruz-Mendoza is
given
edging
post
the
Steward amended lan
the current language
§
of U.S.S.G.
2D1.1.
in
guage
2D1.1,
§
U.S.S.G.
application
If
can
defendant
demonstrate that he was
note 12.
reasonably
not
capable of producing the
methamphetamine, his sentence should be
The burden of proof imposed by
based
drugs
on the actual
delivered.
application note 12 is on the defendant.
prosecution
relies on United States The Sixth Circuit has held that “once the
Steward,
(9th
v.
16 F.3d
Cir.1994),
317
in government satisfies
burden in
its
estab
which
Ninth
Circuit upheld a defen-
lishing
amount,
a negotiated
the defen
attempt
dant’s
methamphet-
conviction for
dants have the burden of proving they
amine, even though the
substance
de- were not capable of producing that
fendant
dangerous
sold
less
Christian,
amount.” United States v.
942
ephedrine. However, that opinion was of-
(6th
363,
Cir.1991)
F.2d
368
(citing United
in
fered
1994 before the amendment
to States v. Rodriguez,
896 F.2d
§
2D1.1 and the Steward court
(6th Cir.1990)). The Ninth
in
explicitly relied on
original conjunctive
Steioard held that the defendant “was not
language of application
note
that has
capable of delivering methamphetamine to
now been modified. Under the current
agent
undercover
because he had
2D1.1,
version of U.S.S.G.
application
none.”
As described the informant. with acquaintance prior twenty year statu- exceed cannot tence that defen- Further, contends the defense to distribute conspiracy maximum for tory middleman between only as a acted his because of cocaine 126.7 points and and informant charge. Cisneros the cocaine only as valid plea is made defendant recorded statements language disjunctive amended Under his “bosses” with had to confer that he 2D1.1, note of U.S.S.G. transaction as of the the terms confirm exclude metham- must court the district managing not defendant was evidence sentencing calculation from phetamine of deliv- the deal. incapable because Application ering legit- may have raised the defense While however, notes, § 2D1.1 12 to U.S.S.G. of man- a finding arguments against imate not of drugs quantities “types status, court was the district agerial may be of conviction in the count specified finding clearly erroneous in offense lev- determining the considered em- prosecution Flores. supervised Thus, statuto- permissible within el.” out the worked that defendant phasizes to consider free the court is ry range arrange- informant, made deal with sen- conduct for as relevant drugs, to deliver the the courier ments for tencing. Flores, courier, instructed and that money portion of the to wire a informant B. inwas to defendant. directly the informant contact repeated with finding de court’s the de- coordinating both a role played superviso or managerial played a fendant for the payment of and livery is a to distribute ry role finding amine. and, thus, upheld should finding fact in a con- Flores managed See clearly erroneous. unless appeal United, people five involving least spiracy at Williams, F.2d for sen- requirements that he satisfies the Cir.1992). under U.S.S.G. enhancement tencing role aggravating For We clearly is not erroneous. 3B1.1 must the defendant apply, enhancement sentencing enhance- affirm the therefore *7 one other partici at least supervised have ment. activity. See criminal in the pant for 1.1(b), 2. In order 3B y. apply, enhancement the three-level in the participants above, we AF- at least five there must reasons stated For the v. United States activity. See criminal enhancement FIRM (6th Cir.1995). An Ward, but F.3d 146 in the role appro § 3B1.1 is use of under U.S.S.G. court’s increase district we REVERSE the “relative whose those priate defendants to calculate defendant’s methamphetamine for is found for offense district responsibility” to the We REMAND sentence. other that of its sen- greater than determination of a new have been for court Vargas, States v. United See opinion. this participants. consistent with tence Cir.1994). (7th 156,160 16 F.3d concurring. GILMAN, Judge, that the argues the rea- judgment and I manager concur finding him to be
court erred court, separately but write soning of work defendant was because supervisor or the district I would reverse of because Cisneros, “kingpin” who was the ing Mu- to calculate methamphetamine di use of Cisneros conspiracy and because not additional reason sentence noz’s the confiden- to contact rected defendant expressed in Part opin- IV.A. of the court’s utes that provide “that one convicted of an ion. The court relies on Application Note attempt may be sentenced to a term of 12 to methamphetamine hold that should imprisonment not exceeding half not have been used to calculate Munoz’s length of the longest term to which he sentence “the because defendant was in- could have been sentenced had succeed- capable of delivering methamphetamine.” ed in his attempt”). despite the fact I would hold that methamphetamine that a defendant’s “moral turpitude” just is should not have been used to calculate as bad whether his intended criminal act Munoz’s even capable sentence he was not, succeeds or the law does if not generally delivering drug, because it is undis- punish him as severely if attempt his fails. puted that drug actually delivered was I disagree therefore with reasoning amphetamine, United States v. Lopez, 125 F.3d Cir.1997), that resulted in Lopez receiving
I base my reasoning in part on the a stiffer sentence on the portion of basis it “was Application Note 12 that reads merely fortuitous” that amphetamine as rath- follows: er than methamphetamine actually de- In an involving offense an agreement to livered. Id. at 600. The law has long sell a substance, controlled agreed- since major made a distinction between upon quantity of the controlled sub- completed crimes attempted versus crimes stance shall be used to determine the based on what Lopez dismissively charac- offense level unless completed the sale is terizes as “merely fortuitous.” and the amount delivered more accu- rately the scale reflects offense. reasons, For the above in addition to For example, a defendant agrees to sell those set court, forth agree I grams cocaine, the transaction is in using court erred metham- completed by the delivery of the con- phetamine to calculate Munoz’s sentence. trolled substance — I therefore concur in the remand to deter- cocaine, no further delivery amine new sentence based on the actual scheduled. In this example, the amount delivery of amphetamine. delivered accurately more reflects the scale of the offense. (em-
U.S.S.G. 2D1.1 Application Note 12 added).
phasis Because the commentary guideline
to the provides that “the amount
delivered accurately more reflects PERTUSO, David Pertuso, J. Karen A.
scale of the offense” than amount in- Plaintiffs-Appellants, delivered, tended to be parallel logic would seem to require that the type *8 accurately delivered “more re- FORD COMPANY, MOTOR CREDIT flects the scale of the than offense” Defendant-Appellee. type intended to be delivered. words, other no matter how clear Munoz’s No. 99-1132. intent was to deliver methamphetamine, United States Court of Appeals, principle which upon Application Note Sixth Circuit. 12 is based dictates that the actually delivered should control his sen- Argued: March 2000.
tencing. Decided and Filed: Nov. 2000. This supported conclusion is by the law generally as applied to sentencing for “at-
tempt crimes.” See 21A Am.Jur.Crim. L. (2d ed.1998)
§ 941 (referring to state stat-