[NOT FOR PUBLICATION – NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
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No. 00-1953
UNITED STATES,
Appellee,
v.
LUIS SANTANA-MENDOZA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Boudin, Chief Judge,
Kravitch,* Senior Circuit Judge,
and Lynch, Circuit Judge.
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Laura Maldonado-Rodriguez for appellant.
Matthew M. Collette for appellee.
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January 10, 2002
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*Of the Eleventh Circuit, sitting by designation.
Per Curiam. Luis Santana-Mendoza is a dairy farmer who,
acting in concert with others, adulterated milk by adding salt and
water. The milk he adulterated was dumped into tanker trucks which
delivered the milk to processing plants. When it reached the plants,
the milk was then added to large silos; all of the milk in the silos
was adulterated as a result. The milk from the silos was then
distributed into interstate commerce for purchase and consumption.
Santana-Mendoza pleaded guilty to conspiracy to deliver adulterated
food for introduction into interstate commerce, in violation of 21
U.S.C. §§ 331(a), 333(a)(2), and 18 U.S.C. § 371.
In calculating the loss caused by the defendant’s scheme for
a sentencing enhancement under U.S.S.G. § 2F1.1(b)(1), the district
court adopted as the relevant volume of contaminated milk the total
amount of milk in the tanker trucks that collected milk from Santana-
Mendoza’s farm. In doing so, the court rejected the government’s
contention that the loss should be measured on the basis of all the
milk contained in the silos, and also rejected the defendant’s
assertion that the loss should be calculated on the basis of the amount
of water added to the milk. This resulted in a final offense level of
13, for which the district court imposed a sentence of 12 months’
imprisonment, a fine of $3,000, and a supervised release term of 3
years. Santana-Mendoza here appeals the district court’s calculation
of loss, reasserting his contention that the relevant volume in
figuring loss under § 2F1.1(b)(1) was the amount of water which he
caused to be added to the silos.
Our recent decision in United States v. Gonzalez-Alvarez, No.
00-2180, is dispositive of this issue. The relevant volume of milk for
the purpose of calculating loss under the Guidelines was the entire
supply of contaminated milk in the silos. Because the government did
not cross-appeal in this case, however, we decline to remand for
resentencing.
AFFIRMED.