F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4108
(D.C. No. 96-CR-277)
ALFONSO BELTRAN-MARTINEZ, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.
Defendant Alfonso Martinez-Beltran pleaded guilty to one count of
distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2, and was sentenced to 140 months’ imprisonment. Defendant appeals
his sentence, claiming the district court improperly calculated the amount of
methamphetamine attributable to him for purposes of determining his base offense
level, and the court failed to rule on his request for a downward adjustment for
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
his alleged role as a minor participant. We exercise jurisdiction pursuant to 28
U.S.C. § 1291 and affirm.
I.
On two separate occasions in October 1996, as part of its investigation of a
drug operation, Drug Enforcement Administration (DEA) task force undercover
agents in Salt Lake City purchased narcotics from Roberto Mendez-Gomez. On
November 21, 1996, an undercover agent, via a cooperating witness, agreed to
purchase approximately three pounds of methamphetamine from Mendez-Gomez
for a total price of $27,000. Under the terms of the agreement, Mendez-Gomez
was to deliver the methamphetamine the following morning to a hotel room rented
by the undercover agent.
Mendez-Gomez did not arrive at the hotel room as planned on the morning
of November 22 but the cooperating witness had several telephone conversations
with his girlfriend, Brandy Barcelon, who assured the cooperating witness that the
methamphetamine would be delivered. Mendez-Gomez arrived at the hotel room
at approximately 2:50 p.m., accompanied by defendant. After they entered the
hotel room, defendant lifted his shirt to remove a one-pound package of
methamphetamine, which he gave to the cooperating witness. In return, the
undercover agent gave defendant $9,000 in cash, which defendant counted.
Mendez-Gomez told the undercover agent that two additional pounds of
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methamphetamine were being delivered to his apartment. The undercover agent
indicated he would buy the additional methamphetamine, but it would have to be
immediately because he was scheduled to leave the city on an afternoon flight.
Both Mendez-Gomez and defendant used the telephone in the hotel room in the
presence of the undercover agent to make arrangements for delivery of the
methamphetamine. Mendez-Gomez and defendant were arrested by task force
agents as they left the hotel room.
II.
Calculation of defendant’s base offense level
Defendant contends the district court erred in calculating his base offense
level under U.S.S.G. § 2D1.1(c) by finding the applicable amount of
methamphetamine at issue was three pounds (the total amount defendant agreed to
sell to the undercover agent), rather than one pound (the amount defendant
actually delivered prior to his arrest). According to defendant, he was not capable
of producing the additional methamphetamine and he did not intend to do so.
We review a sentencing court’s drug quantity determinations for clear
error. United States v. Ruiz-Castro , 92 F.3d 1519, 1534 (10th Cir. 1996). Under
the Sentencing Guidelines, the offense level of a defendant convicted of a
narcotics offense is ordinarily governed by the amount of narcotics involved,
including quantities negotiated but not ultimately consummated. See U.S.S.G. §
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2D1.1(a)(3), (c), and comment n.12; United States v. Lombardi , 138 F.3d 559,
562 (5th Cir. 1998); United States v. Desimone , 119 F.3d 217, 228 (2d Cir. 1997);
United States v. Stavig , 80 F.3d 1241, 1246-47 (8th Cir. 1996); United States v.
Raven , 39 F.3d 428, 432 (3d Cir. 1994); United States v. Steward , 16 F.3d 317,
321-22 (9th Cir. 1994). However, Application Note 12 to § 2D1.1 provides:
If . . . the defendant establishes . . . he or she did not intend to
provide, or was not reasonably capable of providing, the agreed-upon
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.
To take advantage of Application Note 12, a defendant has the burden of proving
either lack of intent or lack of capability. See Stavig , 80 F.3d at 1246-47; but see
Raven , 39 F.3d at 432-35 (discussing burden of proof issue under older version of
Application Note 12, which did not expressly impose burden on defendant; court
concluded defendant bore burden of production but not burden of persuasion).
Here, the government clearly carried its burden of proving the quantity of
drugs by a preponderance of the evidence. See United States v. Sloan , 65 F.3d
861, 865 (10th Cir. 1995). In particular, the government relied on the
uncontroverted factual findings in the presentence report (PSR), which indicated
defendant was personally involved in negotiations with the undercover agent to
deliver two additional pounds of methamphetamine. Record III, PSR at 5
(defendant “admitted . . . he was involved in delivering approximately 400 grams
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of methamphetamine to the [cooperating witness] and DEA task force members
for $9,000, and making arrangements for delivery of two additional pounds of the
substance”). This evidence was clearly sufficient to allow the district court to
conclude defendant had both the intent to deliver the additional methamphetamine
and the capability to do so. See Desimone , 119 F.3d at 229 (pre-arrest
negotiations ordinarily constitute reliable admissions as to defendant’s intent and
capacity to produce particular quantity of narcotics). Although defense counsel
argued, both in response to the PSR and during sentencing, that defendant did not
intend to deliver the agreed amount and was incapable of doing so, defendant
presented no evidence on this point. Because defendant failed to satisfy his
burdens of production and proof on this issue, the district court’s rejection of his
intent and capacity arguments was not clearly erroneous.
Minor participant adjustment
Defendant contends the district court failed to consider his request for a
two-level adjustment pursuant to U.S.S.G. § 3B1.2 for being a minor participant
in the charged crime. Prior to sentencing, defendant filed objections to the PSR
asking for the adjustment. The probation office responded that defendant was not
entitled to a minor participant adjustment because he was equally culpable with
Mendez-Gomez. At sentencing, defense counsel asked the court “to categorize
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[defendant] as a minimal participant -- not a minimal, but a minor participant” in
the charged offense. Record II at 13. After allowing both sides to argue the
issue, the court “reject[ed] [defense counsel’s] argument relative to the defendant
being a minimal participant in this transaction,” and “adopt[ed] the factual
findings and guideline application in the presentence report.” Id. at 19-20. Prior
to entering judgment, the court filed minutes of the sentencing hearing, stating:
“The Court rejected the argument of [defense counsel] that the [defendant] should
receive a reduction for his role in the offense as a minor participant.” Record I,
Doc. 59 at 1.
Although defendant seizes upon the district court’s reference at sentencing
to “minimal participant,” we believe the court fully intended to address and reject
defendant’s “minor participant” argument. At no time did defendant assert he
was entitled to a “minimal participant” adjustment. 1
Further, we find it
persuasive that the court adopted the findings of the PSR, which expressly
rejected defendant’s request for a minor participant adjustment. We also find
compelling the minutes of the sentencing hearing, which accurately reflect the
1
In his appellate brief, defendant contends he “argued in his Position With
Respect to Sentencing Factors and subsequently at sentencing itself, that he
should [be] given a reduction based upon role in the offense as a minor or
minimal participant.” Aplt’s Br. at 12. This contention is wholly unsupported by
the record. As outlined, the record indicates defendant sought only an adjustment
for being a minor participant in the offense.
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court’s intent to reject the “minor participant” argument. Based upon the record
before us, we conclude the court’s reference to “minimal participant” at
sentencing was simply a misstatement precipitated by defense counsel’s own
misstatement earlier in the hearing.
We further conclude the district court did not commit clear error in refusing
to grant defendant a minor participant adjustment. United States v. Ayers , 84
F.3d 382, 383 (10th Cir. 1996) (outlining applicable standard of review). The
sole focus in determining whether a minor participant adjustment is appropriate is
“culpability, not status or position.” United States v. Donaldson , 915 F.2d 612,
615 (10th Cir. 1990). A minor participant is defined as “any participant who is
less culpable than most other participants, but whose role could not be described
as minimal.” Id. ; U.S.S.G. § 3B1.2, comment n.3; see United States v. Smith , 131
F.3d 1392, 1399 (10th Cir. 1997), cert. denied 118 S. Ct. 1109 (1998). Examples
of minimal participants include “someone who played no other role in a very large
drug smuggling operation than to offload part of a single marihuana shipment, or
in a case where an individual was recruited as a courier for a single smuggling
transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment n.2.
As described in the PSR, defendant was at least as culpable as his
codefendants. In particular, he personally delivered the methamphetamine to the
undercover agent and accepted payment. In addition, he assisted Mendez-Gomez
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in making telephone calls to secure the additional two pounds of
methamphetamine. Defendant did not controvert these facts and did not present
any evidence of his own at sentencing. Defendant has failed to satisfy his burden
of proving by a preponderance of the evidence that he was entitled to an
adjustment for minor participation. Smith , 131 F.3d at 1399.
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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United States v. Martinez-Beltran
Combined Opinion