United States v. Espinoza

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 13 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 02-2250
v.
(D.C. No. CR-01-310 BB)
(D. N.M.)
MARIO ESPINOZA, JR.,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before EBEL, HENRY, and HARTZ, Circuit Judges.

A jury convicted Mario Espinoza, Jr., (“Espinoza”) of distributing less than

5 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

Although Espinoza’s conviction was for a crime involving less than five grams of

cocaine, the district court found by a preponderance of the evidence that an

additional 278 grams of cocaine discovered at the residence where he was arrested

*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
should be attributed to him for sentencing purposes pursuant to U.S.S.G. § 1B1.3.

Applying the sentencing guidelines, the district court determined that the

aggregate amount of cocaine attributed to Espinoza resulted in a base offense

level of 36, with a corresponding guideline range of 210 to 262 months. The

court sentenced Espinoza to a prison term of 210 months.

On appeal, Espinoza makes two arguments challenging the district court’s

finding that the 278 grams of cocaine should be attributed to him. First, he argues

that the district court should have used a clear and convincing evidence standard

instead of a preponderance of the evidence standard when determining whether

the additional cocaine should have been attributed to him. Second, he contends

that even under a preponderance of the evidence standard, the 278 grams of

cocaine should not have been attributed to him. We find these arguments to be

unpersuasive and AFFIRM the sentence imposed by the district court.

I

This case involves Espinoza’s sale of crack cocaine to an undercover police

officer, and his presence, at the time of his arrest several months later, in an

apartment where crack cocaine was being manufactured. The sale of crack

occurred on December 8, 2000, when an officer of the Clovis, New Mexico police

department went with a confidential informant to a trailer home in Clovis. (ROA

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IV at 53–54.) Inside the trailer, the undercover officer purchased three rocks of

crack cocaine from Espinoza. (Id. at 55–56, 62.)

Espinoza was arrested on January 31, 2001, at a townhouse in the Paseo

Village complex in Clovis. While on his way to deliver an eviction notice that

day, the Paseo Village property manager called the sheriff to report unusual

activity at the townhouse. (ROA V at 232.) In response to the manager’s

complaint, Sheriff’s Deputy Michael Reeves arrived at Paseo Village, knocked on

the door of the townhouse in question, and Espinoza answered. (Id. 275, 279,

381–82.) When the door opened, Reeves could smell a strong odor of crack, (Id.

at 277), and he suspected that crack was being manufactured inside. (Id. at 279.)

Believing he had stumbled onto a drug location, Deputy Reeves radioed for

assistance on his collar microphone. (Id. at 277.) While standing in the doorway

and awaiting his backup, Reeves noticed a young black man sitting on a chair in

the living room. (Id. at 278.) Deputy Reeves asked Espinoza if he and the other

man were the only ones in the townhouse, and Espinoza said yes. (Id. at 279.)

Deputy Sheriff Lawrence Plotkin arrived soon after Reeves’s call for

assistance. (Id.) Deputy Plotkin interviewed Espinoza, while Deputy Reeves

interviewed the man he had seen in the living room and who was later identified

as Antonio Waites. (Id.; id. at 386–87.) Espinoza refused to give permission for

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the deputies to search the house because, Espinoza claimed, it was not his house

and he had no authority to do so. (Id. at 283–84, 382.)

As the deputies patted down Espinoza and Waites, they heard “some very

loud crashing and banging” from the back of the house and suspected that people

were fleeing the premises through a back window. (Id. at 285, 386.) Deputy

Plotkin guarded Espinoza and Waites in the front yard while Deputy Reeves

entered the house. (Id. at 286.) In his search of the house, Deputy Reeves

discovered Mario Espinoza, Sr., the defendant’s father, in a bedroom. (Id. at 287,

290, 387.) Reeves took Espinoza, Sr., to the front yard and returned to the house

to wait for backup. (Id.) When backup arrived, Deputies Reeves and Plotkin

searched the house for other people. (Id. at 290, 387.) They discovered a woman

hiding in the master bathroom in the dark, and she was handcuffed and escorted

out of the house. (Id. at 291–92.) Deputy Reeves noticed that one of the

windows in the master bedroom had been opened and the screen pushed out. (Id.

at 291.)

During the search, Reeves and Plotkin noticed suspicious items inside the

open closet in the master bedroom. They saw two glass measuring cups, one with

a white residue on it and the other containing a milky-colored liquid; a spoon; and

a bag with white residue on one of the closet shelves. (Id. at 292–93, 387–88.)

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They seized those items, and testing performed later determined that the white

residue on the measuring cup was cocaine. (ROA VII at 642–43.)

An officer of the Clovis Police Department assisted in the search of the

residence. (Id. at 462–65.) In the kitchen, he discovered a Pyrex bowl containing

a substance he believed to be crack. (Id. at 392, 466.) The contents of the bowl

subsequently tested positive for cocaine base, and the cocaine had a net weight of

271.7 grams. (Id. at 631–32.) He also found small amounts of crack cocaine in

various parts of the kitchen, and in total 278 grams of cocaine base was recovered

from the kitchen. (Presentence Report at 4, § 15.)

The next day, employees of a rental company came to the townhouse to

collect furniture and appliances that had been rented by the occupants of the

residence, and they found a package containing a white substance under one of

the beds. (Id. at 499-500.) Deputy Plotkin took possession of the package, and

subsequent testing revealed that it contained 471.5 grams of powder cocaine. (Id.

at 402–04; ROA VII at 629–30.)

On March 31, 2001, a federal grand jury returned a two-count indictment

against Espinoza and Waites. Count I charged them with conspiracy to possess

with intent to distribute 50 grams or more of cocaine base, in violation of 21

U.S.C. § 846. Count II charged them with possession with intent to distribute 50

grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

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(b)(1)(A). (Doc. 1.) Waites pled guilty to that indictment. (Presentence Report

at 3, ¶ 8.)

On September 26, 2001, a federal grand jury returned a three-count Second

Superseding Indictment against Espinoza and two co-defendants, Clarence

Kennedy and Rene Gonzales, who were alleged to have conspired with Espinoza

to distribute crack. (Doc. 53.) Count I charged all three defendants with

conspiracy to possess with intent to distribute 50 grams or more of cocaine base,

in violation of 21 U.S.C. § 846, and Count III charged them with possession with

intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C). (Id.) Count II charged Espinoza alone with

distribution of less than 5 grams of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(c). (Id.)

At Espinoza’s trial, Antonio Waites testified for the Government pursuant

to a plea agreement. (ROA IV at 85–86.) He testified that in 1998 he met

Espinoza’s co-defendant, Clarence Kennedy. (Id. at 92.) In October 2000,

Waites went to a trailer home in Clovis with Kennedy. There, he saw Espinoza

selling crack that had been supplied by Espinoza’s other co-defendant, Rene

Gonzales. (Id. at 94–99.) One month later, Waites and Kennedy returned to the

same trailer, and Waites again saw Espinoza dealing drugs. (Id. at 100-01.) In

December 2000, Kennedy told Waites of a plan in which Gonzales would front

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Kennedy kilogram quantities of cocaine and that Kennedy, Espinoza, and others

would sell the cocaine in Clovis. (Id. at 104–05.)

Waites further testified that on January 31, 2001, Waites and Espinoza

accompanied Kennedy as he drove around Clovis trying to collect money to repay

a $23,000 debt that he owed to Gonzales. (Id. at 109–113.) Espinoza gave

Kennedy some money to help pay the debt, (id. at 213), but when the three men

met Gonzales that day at the Paseo Village townhouse, Kennedy had only

collected $20,000. (Id. at 110.) Gonzales agreed to forgive the remaining $3000

if Kennedy would “cook up” crack for Gonzales worth that amount from some

powder cocaine in the house. (Id.) After that conversation, Waites, Espinoza, and

Kennedy drove to a Wal-Mart to purchase the supplies needed to make the crack,

including a Pyrex bowl. (Id. at 111–12.)

According to Waites, after returning to the townhouse Kennedy began to

cook the crack in the kitchen. (Id. at 114–18.) Shortly thereafter, there was a

knock on the door and Espinoza answered it. (Id. at 118.) Waites overheard

Espinoza talking to the property manager, who complained about the activity in

the townhouse and delivered the eviction notice. (Id. at 118–19.) When Espinoza

answered the door, Kennedy and Gonzales ran to the back room of the townhouse.

(Id. at 119.) Only about two minutes after the property manager left, there was

another knock on the door. (Id. at 119–20.) Espinoza again answered it, and this

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time it was Deputy Reeves. (Id. at 120.) While the sheriff’s deputies questioned

Espinoza and Waites, Kennedy and Gonzales fled through the window in the

master bedroom. (Id. at 120–21.) Then the deputies searched the house and

discovered the drug paraphernalia. (Id. at 121.)

On April 5, 2002, a jury found Espinoza guilty of Count II of the

indictment. (Doc. 125.) The jury could not reach a verdict as to Espinoza on

Counts I and III, and the district court declared a mistrial as to those counts. (Id.;

Doc. 122.) The jury convicted Kennedy of Counts I and II, and acquitted

Gonzales of all charges. (Id.)

In Espinoza’s Presentence Report (PSR), the Probation Office attributed to

Espinoza for sentencing purposes the 278 grams of cocaine found in the kitchen

that formed the basis of Count III of the indictment. (PSR at 5, ¶ 19.) The PSR

also attributed to Espinoza the 471 grams of powder cocaine found under the bed.

(Id.) Applying the sentencing guidelines to these amounts generated a base

offense level for Espinoza of 34. The Probation Office determined that

Espinoza’s criminal history category was II. (Id.)

Both the Government and Espinoza filed objections to the PSR. The

Government objected to the PSR because it did not contain an upward adjustment

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under U.S.S.G. § 3C1.1 for Espinoza’s false testimony at trial. 1 Espinoza filed an

objection challenging the attribution to him of the 278 grams of cocaine base and

471 grams of powder cocaine. (Doc. 146.) In a Second Addendum to the PSR,

the Probation Office agreed with the Government’s request for an upward

adjustment for false testimony and rejected Espinoza’s objection. (Second Add.

to PSR.) The Probation Office therefore added two levels for obstruction of

justice, resulting in a total offense level of 36 for Espinoza. With his criminal

history category of II, this generated a guideline sentencing range of 210 to 262

months imprisonment.

At the sentencing hearing on August 19, 2002, the district court concluded

that it would not attribute the 471 grams of powder cocaine to Espinoza. (ROA

III at 17.) It doubted that a preponderance of the evidence established that the

powder cocaine was attributable to Espinoza, (id. at 14–15), and it concluded that

whether or not the powder cocaine was included in the quantity of drugs used to

calculate Espinoza’s sentencing range would not affect that calculation. 2

1
The Government argued this upward adjustment to the total offense level
was appropriate because Espinoza testified at trial that he did not sell crack
cocaine to the undercover police officer, but the jury convicted of him of having
done so. (Doc. 137.)
2
Pursuant to U.S.S.G. § 2D1.1 cmt. n.9 (2001), the Drug Equivalency Table
provides a means for converting different controlled substances (e.g., powder
cocaine and cocaine base (“crack”)) into an equivalent amount of marijuana. By
adding the total marijuana equivalents, a single offense level is obtained in the
(continued...)

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 However, the district court did find that the 278 grams of cocaine base was

properly attributed to Espinoza. The court stated, “I certainly think by a

preponderance of the evidence there is adequate evidence to link him to the

remainder of the narcotics used as a basis for calculation.” Tr. of Sentencing

Hr’g at 15–16. Espinoza did not object to the district court’s use of a

preponderance of the evidence standard for making this determination, nor did

Espinoza argue that a higher standard should be used. After adopting the factual

findings in the PSR and its application of the guidelines, the district court

sentenced Espinoza to 210 months imprisonment, the low end of the applicable

range. (Id. at 16–17.) Judgment was entered on September 4, 2002, and Espinoza

timely filed a notice of appeal.

II

On appeal, Espinoza’s first contention is that the district court should not

have used a preponderance of the evidence standard to determine what drug

2
(...continued)
Drug Quantity Table at U.S.S.G. § 2D1.1(c)(3). In the instant case, the 471 grams
of powder cocaine converts into 94.2 kilograms of marijuana, and the 278 grams
of cocaine base converts into 5,980 kilograms of marijuana. The combined
converted total of 6,074 kilograms of marijuana generates a base offense level of
34 in the Drug Quantity Table. U.S.S.G. § 2D1.1(c)(3) (stating a base offense
level of 34 for “[a]t least 3,000 KG but less than 10,000 KG of Marihuana.”).
Removing the 94.2 kilograms of marijuana equivalent for the 471 grams of
powder cocaine does not remove the aggregate drug quantity from the range of
3,000 kilograms to 10,000 kilograms of marijuana that generates an offense level
of 34.

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quantities, in addition to those for which he was convicted, should be considered

in calculating his sentence. The sentencing guidelines for Espinoza’s crime

require the court to calculate the amount of drugs involved when setting the base

offense level. See U.S.S.G. § 2D1.1(a)(3), (c). The district court found by a

preponderance of the evidence that the 278 grams of cocaine base discovered in

the Paseo Village townhouse should be attributed to Espinoza in addition to the

less than 5 grams of cocaine base he was convicted of selling under Count II of

the Second Superseding Indictment. Espinoza argues that because the drug

quantities attributed to him so dramatically increased the applicable sentencing

range, the district court should have applied a clear and convincing evidence

standard when determining the quantities attributable to him. 3 (Aplt. B. at 17–18,

22.)

Ordinarily, we review the sentencing court’s application of the guidelines

de novo and its fact findings under the clearly erroneous standard. United States

v. Melton, 131 F.3d 1400, 1403 (10th Cir. 1997). Espinoza, however, did not

object to the burden of proof employed by the district court at sentencing, a fact

that he admits in his Reply Brief. (R.B. at 1.) Consequently, we only review this

If Espinoza had only been sentenced for the 1 gram of crack he sold to the
3

undercover officer, his base offense level would have been 18 and the applicable
sentencing range would have been 30–37 months. See U.S.S.G. § 2D1.1 cmt. n.9
(Drug Equivalency Table); id. § 2D1.1(c)(3) (Drug Quantity Table).

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issue for plain error. United States v. Olano, 507 U.S. 725, 731–32 (1993). For

Espinoza to prevail under the plain error standard of review, he must show that

there is (1) error, (2) that is plain, (3) that affects “substantial rights,” and (4) that

the error “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 732–36 (alteration in original) (internal quotation marks

omitted).

As to the first part of the plain error standard—whether there was error at

all—Espinoza first concedes that our cases have firmly established that ordinarily

the district court need apply nothing more than a preponderance of the evidence

burden of proof when determining relevant conduct for sentencing purposes. See

United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993); United States

v. Mendez-Zamora, 296 F.3d 1013, 1020 (10th Cir. 2002); (Aplt. B. at 19–21).

He argues, however, that our cases leave open the possibility that a higher burden

of proof should be applied when the relevant conduct at issue results in a dramatic

increase in sentence. See, e.g., Washington, 11 F.3d at 1516 (“[T]he Due Process

Clause does not require sentencing facts in the ordinary case to be proved by

more than a preponderance standard.”) (emphasis added); Mendez-Zamora, 296

F.3d at 1020 (holding that because the defendant’s increase in sentence was less

than the increase at issue in Washington, the preponderance of the evidence

standard should apply and thus apparently leaving open the possibility that a more

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dramatic increase in sentence might warrant a heavier burden of proof).

Specifically, Espinoza argues that the sentence enhancements at issue in this case

are far greater than those at issue in Washington and Mendez-Zamora, putting his

case in the supposed special category of “dramatic enhancement” cases requiring

a clear and convincing evidence standard. We put off for another day the

question whether there are some cases in which the increase in sentencing range

resulting from relevant conduct attributed to the defendant is so great that proof

by clear and convincing evidence is required. We need not address that question

here because, even if we concluded that there were such a class of cases, and that

this case might be one of them, Espinoza would fail to satisfy the other parts of

the plain error standard of review.

First, even if we were to agree with Espinoza that it was error for the

district court to use the preponderance of the evidence standard, it would not be a

“plain error.” “‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’”

Olano, 507 U.S. at 734. For us to agree with Espinoza’s argument and conclude

that the clear and convincing evidence standard applies, we would have to qualify

the statements in our case law to the contrary. See, e.g., Washington, 11 F.3d at

1516 (“At least as concerns making guideline calculations the issue of a higher

than a preponderance standard is foreclosed in this circuit.”). We would have to

establish a new legal principle in our Circuit in order to find that error occurred in

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this case, and in that circumstance the error could not be said to be “clear” or

“obvious.”

Second, for an error to affect substantial rights, “[i]t must have affected the

outcome of the district court proceedings,” and “the defendant rather than the

Government . . . bears the burden of persuasion with respect to prejudice.”

Olano, 507 U.S. at 734. There is no question that the 278 grams of crack cocaine

attributed to Espinoza by the district court significantly increased the sentencing

range he faced. But the burden is on Espinoza to persuade us that the 278 grams

of crack would not have been attributed to him if the clear and convincing

evidence standard had been applied. He does not attempt to make this showing.

In fact, even after the Government’s brief put him on notice that the plain error

standard of review applied to this issue and he conceded the point, he made no

attempt in his Reply Brief to show us how the clear and convincing standard

would have changed the outcome of his sentencing.

Third, we only exercise our discretion to consider plain errors if the error is

one that “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 732–36 (alteration in original) (internal quotation marks

omitted). That standard is not met here. As just stated, for Espinoza to prevail,

we would have to, for the first time in our Circuit, qualify the existing rules about

what burden of proof applies to a district court’s determination of what acts

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should be attributed to a defendant for sentencing purposes. It is not an error that

seriously affects the fairness, integrity, or public reputation of judicial

proceedings for a district court judge to fail to anticipate that we would agree to

such a modification of the existing law, particularly when the possibility of the

modification was not raised with the district court by Espinoza.

In his Reply Brief, Espinoza argues that we should not apply the plain error

standard of review to this issue even as he concedes that this standard is the one

normally applied in cases, like his, where the appellant failed to raise the issue

below. He contends that it is “fundamentally unfair” to apply the plain error

standard of review in cases where the defendant has “no reasonable ability or

opportunity to make [an objection].” (R.B. at 2.) Espinoza, however, cites no

authority for such a rule, and even were this rule embraced by the case law, it

would not help him here. We do not agree with Espinoza’s claim that “the

considerations, inherent to a judge’s application of burdens of proof at a

sentencing hearing, eliminate or substantially reduce a defendant’s ability to voice

a meaningful objection.” (Id.) The district court judge stated at the sentencing

hearing that he was applying a preponderance of the evidence standard to make

his determination of relevant drug quantities should be attributable to Espinoza.

Tr. of Sentencing Hr’g at 15–16 (“THE COURT: I certainly think by a

preponderance of the evidence there is adequate evidence to link him to the

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remainder of the narcotics used [i.e., the 278 grams of crack] as a basis for

calculation.”). Espinoza’s counsel was present and could have objected to the

district court’s application of the preponderance of the evidence standard.

Moreover, it was not unexpected that the issue of what relevant conduct

should be attributed to Espinoza, and accordingly what burden of proof must be

met to find such conduct, would arise at the sentencing hearing. Espinoza

objected to the PSR’s treatment of this issue and his counsel was prepared to

argue it again at the hearing. His counsel should have been familiar with the

evidentiary standard applied to determinations of what drug quantities are

attributable to a defendant and been prepared to argue for his position, which we

have explained would be a qualification to the usual application of the

preponderance of the evidence standard. We are, therefore, unpersuaded by

Espinoza’s argument that we should employ de novo, instead of plain error,

review for this issue.

Employing the plain error standard of review, we conclude that the district

court properly applied the preponderance of the evidence burden of proof at the

sentencing hearing.

III

Espinoza’s second argument on appeal is that even if using the

preponderance of the evidence standard was correct, the district court erred in

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attributing the 278 grams of cocaine base found in the kitchen of the townhouse

to him for sentencing purposes because a preponderance of the evidence did not

support that finding. We review the factual findings supporting the district

court’s base offense level calculations under the clearly erroneous standard,

United States v. Wise, 990 F.2d 1545, 1550 (10th Cir. 1992), and we conclude

that the district court’s findings were not clearly erroneous.

The sentencing guideline applicable to Espinoza’s conviction under 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(C) is U.S.S.G. § 2D1.1(a)(3). It includes a

range of base offense levels, and which one applies in a given case is determined

by the quantity of drugs involved. In calculating the quantity of drugs involved,

the guideline states that the sentencing court should include all relevant quantities

of drugs, including “quantities of drugs not specified in the count of conviction.”

U.S.S.G. § 2D1.1, cmt. n.12 (“Types and quantities of drugs not specified in the

count of conviction may be considered in determining the offense level. See §

1B1.3(a)(2) (Relevant conduct).”). In order for quantities of drugs to be relevant,

and therefore attributable to a defendant for sentencing purposes under U.S.S.G. §

1B1.3(a)(2), three prerequisites must be met:

First, there must be a finding that the offense in question involved
conduct described in §§ 1B1.3(a)(1)(A) and (B) [of the guidelines].
Second, the offense must be the type of offense that, if the defendant
had been convicted of both offenses, would require grouping with the
offense of conviction for sentencing purposes under U.S.S.G. §
3D1.2(d). Third, the offense must have been “part of the same

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 course of conduct of common scheme or plan.” U.S.S.G. §
1B1.3(a)(2).

United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996). Espinoza does not

dispute that the second requirement for attributing the 278 grams of cocaine base

to him is met. His argument is that the record does not support, by a

preponderance of the evidence, that he aided or abetted the manufacture of the

crack cocaine in the kitchen of the townhouse, as required by U.S.S.G. §

1B1.3(a)(1)(A) and (B), or that the manufacture of that cocaine was part of a

common scheme or plan with Kennedy and Gonzales, as required by U.S.S.G. §

1B1.3(a)(2).

A preponderance of the evidence supports the findings that Espinoza aided

and abetted the crack manufacturing and that the crack manufacturing was part of

a common scheme or plan. Espinoza actively attempted to conceal the crack

manufacturing operation from the police by lying to Officer Reeves when Reeves

asked him if anyone else was in the house besides Waites. Espinoza lied by

saying only he and Waites were there even as Gonzales and Kennedy escaped

through a back window and two other people remained hiding in the house. This

fact established that Espinoza aided and abetted Kennedy’s preparation of the

crack.

Furthermore, the record supports a finding that a preponderance of the

evidence established that Kennedy’s preparation of crack was part of a common

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scheme or plan with Espinoza to distribute crack cocaine. Waites testified that on

two occasions he traveled with Kennedy to a trailer home where he witnessed

Espinoza selling crack provided by Gonzales. Shortly thereafter, Kennedy told

Waites that he and Espinoza had moved from the trailer into a house and that

Gonzales was going to front them kilogram quantities of cocaine that Kennedy,

Espinoza, and others would sell in Clovis. (ROA IV at 103–05.) Waites also

testified that Espinoza contributed cash to Kennedy to pay a debt owed to

Gonzales, and was present when cocaine was being cooked into crack for use in

repaying the remainder of the debt to Gonzales. Because there is factual support

for the district court’s finding in the record, and we have no definite or firm

conviction that a mistake has been made, we conclude that the district court did

not commit clear error when it found that the 278 grams of cocaine Kennedy was

making into crack was part of a common plan or scheme involving the crack that

Espinoza sold to an undercover police officer. Manning v. United States, 146

F.3d 808, 812 (10th Cir. 1998) (clear error standard met when a finding is

“without factual support in the record or if [we are] . . . left with a definite and

firm conviction that a mistake has been made.).

Espinoza challenges this conclusion by pointing out that the district court

did not attribute the 471 grams of powder cocaine to him. He argues that because

the evidence establishing Espinoza’s connection to the 278 grams of crack was

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similar to the evidence linking him to the powder cocaine, and the district court’s

refusal to attribute the powder cocaine suggests there was not a preponderance of

the evidence to support attribution of that cocaine, then there also was not a

preponderance of the evidence supporting attribution of the crack cocaine. (Aplt.

B. at 27–28.) We find this argument unpersuasive for at least two reasons. First,

one of the reasons for why the district court did not attribute the powder cocaine

to Espinoza was that attributing that quantity of cocaine would not have affected

Espinoza’s offense level. Tr. of Sentencing Hr’g at 15 (“It doesn’t make any

difference whether that kilo in the mattress was charged to [Espinoza]. The

sentence guideline range remains the same.”); see supra, at n.2. The powder

cocaine was irrelevant in terms of sentencing. Second, the district court’s refusal

to attribute the powder cocaine to Espinoza, whether right or wrong, says nothing

about whether it was clear error to attribute the 278 grams of crack cocaine to

him. As we stated above, there is evidence in the record to support that

conclusion, and we have no definite and firm conviction that it was a mistake by

the district court to attribute the crack to Espinoza. The district court’s treatment

of the powder cocaine does not affect this analysis.

For foregoing reasons, we conclude that the district court properly

attributed 278 grams of crack cocaine to Espinoza for sentencing purposes.

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 IV

Because the district court selected the correct evidentiary standard for

assessing attributable drug quantities at the sentencing hearing and correctly

applied that standard, we AFFIRM the sentence imposed by the district court.

ENTERED FOR THE COURT

David M. Ebel
Circuit Judge

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