USCA1 Opinion
August 25, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 94-1275
UNITED STATES,
Appellee,
v.
ORLANDO JESUS SUAZA, A/K/A EL PAISA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
____________________
Before
Cyr, Boudin and Lynch,
Circuit Judges. ______________
____________________
Eileen M. Donoghue on brief for appellant. __________________
Donald K. Stern, United States Attorney, and Michael D. Ricciuti, _______________ ____________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________
Per Curiam. Defendant, who pled guilty to, among __________
other things, conspiracy to possess with intent to distribute
heroin, challenges 1000 grams of the amount of heroin
attributed to him for sentencing purposes. He says he lacked
both the intent and the ability to deliver that amount. The
district court found to the contrary. We review for clear
error. United States v. Morillo, 8 F.3d 864, 871 (1st Cir. _________________________
1993).
The presentence report (PSR) indicates that
beginning in April 1992, defendant discussed with
confidential informants (CIs) heroin and cocaine
transactions. Talking in code, defendant represented that
his source had two kilograms of heroin to sell and quoted a
price for a half kilogram. His source, co-conspirator
Zuluaga, confirmed to a CI that she had heroin at her house.
On Wednesday, April 15, 1992, defendant, Zuluaga, and co-
conspirator Hoyos met with the CIs and the purported buyers,
two undercover agents (UCs). Defendant exhibited 500 grams
of heroin. Buyers said they wanted one kilogram a week. The
UCs purchased 125 grams of heroin that day as a sample in
anticipation of a future one kilogram sale. Hoyos said that
if the buyers liked the sample, then "Friday or Saturday
we'll sell a kilo."
While further negotiations occurred later that
month and the next, defendant did not participate in them.
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Indeed, he may have been excluded from the conspiracy. A
price was not agreed upon, and no kilogram sale actually took
place at that time.
Where, as here, a negotiated but uncompleted
transaction is involved, U.S.S.G. 2D1.1, Application Note
12, sets the rule: "[T]he weight under negotiation in an
uncompleted distribution shall be used to calculate the
applicable amount" unless "the court finds that the defendant
did not intend to produce and was not reasonably capable of
producing the negotiated amount." We conclude that the
district court's finding that, as of April 15, 1992,
defendant had the intention and ability to produce a kilogram
of heroin was supported by the PSR.
It is clear from the PSR that, as of April 15,
defendant and his co-conspirators intended to supply the UCs
with at least a kilogram in the near future if a price could
be agreed upon. The UCs said they wanted a kilogram a week,
defendant actively participated in the sale of the sample in
anticipation of a one kilogram transaction, and Hoyos
indicated he was willing to proceed with a one kilogram sale
within a few days. Defendant points to the fact that the
price for a kilogram quantity was not discussed (they did
haggle over the sample price, however) or agreed upon at the
April 15 meeting as somehow negating intent. It did not. An
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intent to sell certainly can exist even though the price
remains to be negotiated.
As for ability to supply a kilogram of heroin,
defendant was a member of a conspiracy which supportably
could be found to have access to kilogram quantities.
Defendant had stated earlier that month that Zuluaga had two
kilograms of heroin to sell, and Hoyos said he was ready to
complete the transaction the following Friday or Saturday,
indicating he did not foresee any problem supplying a
kilogram in short order. Crediting these assertions, the
court could supportably find that defendant, through his
association with Zuluaga and Hoyos, was able to produce a
kilogram within the very near future. Defendant points to a
statement that could be read as indicating that the group had
brought "all" their heroin (500 grams) with them on April 15
and argues that statement indicates they lacked the ability
to produce any more, let alone another kilogram. Defendant's
reading is not a necessary one, but even if it were, it would
not negate the group's capacity to acquire enough for the
contemplated transaction.
Defendant also argues that he was excluded from the
conspiracy immediately after the April 15 meeting and
therefore lacked the capacity thereafter to produce a
kilogram of heroin. It may be that once Zuluaga and Hoyos
withdrew their support, defendant lacked the ability to
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supply a kilogram of heroin. But, on April 15, 1992 when he
was actively negotiating to bring about a one kilogram sale,
defendant supportably could be found to have had the intent
and ability (through his association with Zuluaga and Hoyos)
to procure a kilogram of heroin. If he was subsequently
expelled from the conspiracy, that expulsion did not
retroactively absolve him of responsibility for the April 15,
1992 one kilogram negotiations.
The judgment is summarily affirmed. Loc. R. 27.1. ________
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