FILED
NOT FOR PUBLICATION JUL 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50624
Plaintiff - Appellee, D.C. No. 2:09-cr-00116-RGK-1
v.
MEMORANDUM*
VICTOR MANUEL PALMA:
aka: Raul Lopez-Villanueva,
aka: Moreno,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted June 9, 2011
Pasadena, California
Before: B. FLETCHER, and N.R. SMITH, Circuit Judges, and R. BREWSTER,
District Judge.**
Victor Manuel Palma, a federal prisoner who entered a guilty plea (without a
plea agreement) to five counts of narcotics charges, appeals two aspects of his 87-
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Rudi M. Brewster, Senior United States District Judge for the
Southern District of California, sitting by designation.
month sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in
part and reverse in part.
Palma first challenges the calculation of the quantity of narcotics used to
determine that his base offense level was 34 under the sentencing guidelines.
We agree that only two of the three ounces of methamphetamine delivered on
August 13, 2008 should have been included in the calculation. The objective
evidence (namely, payment for the negotiated amount of two ounces) corroborated
Palma’s intent to deliver only two ounces. USSG § 2D1.1, comment. (n12) (2008).
Under Application Note 12, “the agreed-upon quantity of the 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.” Id. (emphasis
added). Here, the parties agreed to two ounces, Palma intended to deliver two
ounces, the confidential informant agreed to deliver a certain number of cases of
counterfeit cigarettes in exchange for two ounces, and the agent marked the
evidence bag as containing two ounces. Neither Palma nor the government
informant knew that the package delivered by the supplier weighed three ounces.
These unique and uncontradicted facts establish that Palma’s sentence should be
calculated by using the agreed-upon amount of two ounces.
Any error in counting the extra ounce was counter-balanced by a separate
error – one that benefitted Palma. The presentence report erroneously omitted from
its calculation the one ounce of methamphetamine that Palma delivered on October
-2-
2, 2008. The October transaction is described in the factual section of the
presentence report but that amount (slightly less than one ounce) was not included
in the calculation section. The government brought this error to the attention of the
district court and argued that, even if the court sustained Palma’s objection to the
August transaction, it would not change the base level.1 United States v. Sanchez,
908 F.2d 1443, 1447 (9th Cir. 1990). If we were to remand with instructions to
deduct one ounce from the August transaction, the district court would be permitted
to correct the other error by adding the ounce involved in the October transaction.
United States v. Garcia-Guizar, 234 F.3d 483, 489-91 (9th Cir. 2000).
Therefore, we agree with the district court’s ultimate conclusion that the
errors in calculating the quantity of methamphetamine would not change Palma’s
base offense level or his sentence. United States v. Crawford, 185 F.3d 1024, 1029
(9th Cir. 1999).
Palma also challenges the conditions of supervised release concerning his
association with the Florencia 13 (“F13”) street gang.
Both parties agree that pursuant to our recent decision, United States v.
Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010), we must reverse and remand with
instructions to strike the language in condition 2 that Palma may not associate with
“persons associated with the F13 gang.”
1
The presentence report also erred when it converted one ounce to 28.50 grams. The
correct conversion is 28.35 grams. This mathematical error is harmless because it did not impact
the guidelines range.
-3-
By contrast, we uphold the condition barring Palma from wearing,
displaying, using, or possessing any clothing or other items that evidences
affiliation with the F13 gang. Id. at 1090-91. We also affirm the condition
prohibiting Palma from being “present in any other area known to him to be a
location where F13 gang members meet or assemble.” United States v. Soltero, 510
F.3d 858, 865-67 & n.9 (9th Cir. 2007).
AFFIRMED IN PART and REVERSED IN PART.
-4-
FILED
USA v Victor Manuel Palma 09-50624 JUL 28 2011
MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring: U.S. COURT OF APPEALS
I do not necessarily “agree” that the amount of methamphetamine from the August
13, 2008 transaction should be two, rather than three, ounces.
Application Note 12 provides that “[i]n 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 unless the sale is completed and the
amount delivered more accurately reflects the scale of the offense.” USSG §
2D1.1 (emphasis added). We have previously applied “the agreed upon quantity”
in cases in which the sale was not completed; there we affirmed sentences
calculated on the amount the defendant agreed to deliver. E.g., United States v.
Lopes-Montes, 165 F.3d 730, 730-31 (9th Cir. 1999) (defendant delivered half of
the amount negotiated before he was arrested). We have not, however, applied
Application Note 12 to a case in which the transaction was completed and more
drugs were delivered to the buyer than were agreed to be sold. Here, three ounces
were actually delivered. Under the plain language of Application Note 12, three
ounces “more accurately reflects the scale of the offense.” USSG § 2D1.1.
I agree that the intent of Palma would be relevant to the inquiry of whether
the sentencing court should have used two or three ounces. See United States v.
Kipp, 10 F.3d 1463, 1466 (9th Cir. 1996) (the amount of drugs possessed cannot be
used to sentence for intent to distribute without findings of the amount intended for
distribution). However, that is not the only issue in the necessary analysis here.
Yet, we do not need to engage in this analysis in this case. As the
Memorandum Disposition correctly concludes, any error was harmless due to the
omission of an ounce of methamphetamine from a later transaction that could be
used by the district court on remand to impose the same sentence. United States v.
Garcia-Guizar, 234 F.3d 483, 489-91 (9th Cir. 2000). I therefore concur in the
Memorandum Disposition, except the second paragraph.