[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 26, 2009
No. 08-12856 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00021-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS LUNDY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 26, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Carlos Lundy appeals his 100-month sentence for distribution of cocaine
base, in violation of 21 U.S.C. § 841(a)(1). On appeal, Lundy first argues that the
district court erred by including an uncompleted sale of cocaine to a confidential
informant (“CI”) in the calculation of his offense level, pursuant to U.S.
S ENTENCING G UIDELINES M ANUAL § 2D1.1. Lundy argues that he had neither the
intent to deliver the full two ounces that the CI wanted to buy nor the capability to
deliver that amount. Lundy further contends that, based on his subsequent
transactions with the CI, the court could only infer that the determinable amount
from the uncompleted transaction would have been less than half of the amount for
which the CI negotiated. Lundy notes that his offer to sell to the CI was contingent
on the CI taking the delivery within a reasonable amount of time, such that when
the CI arrived in Statesboro late, there was no longer a deal. Additionally, Lundy
contends that he had “no ability” in his own right to complete the transaction
because he was wholly dependant on his codefendant for his drug supply.
We review the district court’s interpretation and application of the
Guidelines de novo and review the underlying factual findings for clear error.
United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007) (citation omitted), cert.
denied, 128 S. Ct. 1912 (2008). Where, as here, a drug trafficking offense
involves cocaine base (crack cocaine) and one or more controlled substances, the
different drugs are converted into their marihuana equivalency to determine which
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offense level in the Drug Quantity Table set forth in U.S. S ENTENCING
G UIDELINES M ANUAL § 2D1.1(c) applies. The offense level is then reduced by
2-levels. U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.1(a)(3), cmt. n.10(B),
(D)(i).
The commentary to § 2D1.1 provides that quantities of drugs not specified in
the count of conviction may be considered in determining a defendant’s offense
level. U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.1, cmt. n.12. Where “the
amount seized does not reflect the scale of the offense, the court shall approximate
the quantity of the controlled substance.” Id. “In making this determination, the
court may consider . . . similar transactions in controlled substances by the
defendant. . . .” Id. If an offense involved an “agreement” to sell a controlled
substance, “the agreed-upon quantity of the controlled substance shall be used to
determine the offense level . . . .” Id. “If, however, the defendant establishes that
the defendant did not intend to provide or purchase, or was not reasonably capable
of providing or purchasing, the agreed-upon quantity of the controlled substance,
the court shall exclude from” its quantity determination, the amount the defendant
establishes that he “did not intend to provide . . . or was not reasonably capable of
providing. . . .” Id.
There was no indication from the record that Lundy, despite understanding
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that the CI wanted to buy two ounces of crack cocaine, ever told the CI that he
would be unable to provide the CI with the entire amount. Further, Lundy’s
undisputed statements to the CI– that he had the crack cocaine earlier before the CI
arrived and that he would be able to provide the amount later that day– suggest that
he still was capable of delivering the drugs to the CI. Accordingly, because Lundy
did not show that he lacked the intent or capability to deliver two ounces of crack
cocaine to the CI after they negotiated for that amount, the district court did not err
in considering the two ounces from the uncompleted sale in its base offense level
calculation.
Next, Lundy argues that the sentencing court abused its discretion in not
departing downward from a criminal history category of III to a criminal history
category of II. The government responds that, because Lundy does not contend
that the district court believed it was without authority to downwardly depart
pursuant to U.S. S ENTENCING G UIDELINES M ANUAL § 4A1.3, we lack jurisdiction
to review his arguments on the matter.
We review de novo questions regarding subject matter jurisdiction. United
States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.) (per curiam), cert. denied,
129S. Ct. 288 (2008). We lack jurisdiction to review a district court’s refusal to
grant a downward departure, unless the district court incorrectly believed that it
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lacked the statutory authority to depart from the Guidelines range. United States v.
Norris, 452 F.3d 1275, 1282 (11th Cir. 2006) (citation omitted). “[W]e assume the
sentencing court understood it had authority to depart downward” when nothing in
the record indicates otherwise. United States v. Chase, 174 F.3d 1193, 1195 (11th
Cir. 1999) (citations omitted). Because nothing in the record indicates that the
district court was ignorant of its authority to depart under § 4A1.3, we lack
jurisdiction to consider the district court’s decision not to depart downward from
Lundy’s criminal history category.
CONCLUSION
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we affirm.
AFFIRMED.
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