United States of America, Appellant-Cross-Appellee v. Mario Chalarca, Defendant-Appellee-Cross-Appellant

SCULLIN, District Judge,

Concurring:

While I frilly concur in this Court’s decision to affirm the District Court in its application of the sentencing guidelines, I would do so without reservation. Under the circumstances of this case, I do not find it as difficult as the majority to conclude that no specific quantity of cocaine can be attributed to defendant Chalarca. In convicting Cha-larca of conspiracy the jury made no specific determination as to the quantity of drugs involved,1 and on the record before us it is *247clear that drugs were never present.2 The District Court also found, after an extensive hearing, that Chalarca had no knowledge of the amount of drugs involved in the negotiations between his co-conspirators and the government agents, or the amount of drugs that $70,000 could buy.3 The District Court applied the criteria set forth in 1B1.3(a)(1)(B) to those findings to determine the appropriate amount of cocaine to attribute to Chalar-ca.

The majority affirms this application of 1B1.3(a)(1)(B) on the finding of the District Court that Chalarca lacked knowledge of the purpose of the trip to Queens and therefore he could not be considered to be “personally involved” so as to bring him within the ambit of 1B1.3(a)(1)(A). I do not disagree with the majority’s reasoning, however, I would not find it necessary to attribute any specific amount of cocaine to Chalarca even if he had been personally involved in facilitating the aborted drug transaction. Neither the defendant or his co-conspirator were charged with possession, nor were there any drugs present that could be possessed. None of the cases cited by the majority in discussing U.S.S.G. § 1B1.3(a)(1)(A) attribute a specific quantity of drugs to a defendant convicted solely of conspiracy where no drugs were present. Some quantity was present in all three cases. See United States v. de Velasquez, 28 F.3d 2 (2d Cir.), cert. denied, — U.S. -, 115 S.Ct. 679, 130 L.Ed.2d 611 (1994) (defendant convicted of importation and 804.1 grams of heroin present); United States v. Corral-Ibarra, 25 F.3d 430 (7th Cir.1994) (defendant convicted of conspiracy to distribute and attempted possession with intent to distribute, and 50 kilos of cocaine present); United States v. Lockhart, 37 F.3d 1451 (10th Cir.1994) (defendant convicted of conspiracy to possess with intent to distribute a controlled substance, and 1.5 kilos of cocaine present); see also United States v. Cardenas, 917 F.2d 683 (2d Cir.1990) (defendant was convicted of conspiracy to distribute and sentenced pursuant to former U.S.S.G. § 2D1.4 using 60 kilos of cocaine which were actually present during the course of the conspiracy).

On the facts of this case, even if Chalarca knew that he was driving his co-conspirator to a drug transaction, thereby implicating U.S.S.G. § 1B1.3(a)(1)(A), the only crime he could have facilitated was the crime of conspiracy. The District Court, therefore, had discretion to ascertain what was “reasonably foreseeable” to Chalarca in light of his participation, or facilitation, of the conspiracy. It was within the District Court’s discretion to decline the government’s invitation to attribute to the defendant the quantity of drugs his co-conspirator, Mr. Sanchez, intended to sell over the course of the conspiracy, or the amount of drugs $70,000 could buy. Furthermore, whether it applied U.S.S.G. §§ 1B1.3(a)(1)(A) or 1B1.3(a)(1)(B), it was entirely proper for the District Court to attribute to the defendant the least amount of cocaine on the Drug Quantity Table. Insofar as the majority opinion suggests otherwise, I would respectfully disagree.

. Chalarca was found guilty after trial of conspiracy to distribute and to possess with intent to distribute cocaine. In her charge to the jury, the District Court Judge appropriately instructed that:

[t]he conspiracy count charges that the narcotics involved here were cocaine. In this regard, *247let me instruct you that the actual quantity of narcotics involved is not an element of this crime, so you need not be concerned with that. You need only find that the co-conspirators agreed to distribute or possess with intent to distribute any quantity of narcotics.

. This case involves a classic “reverse sting” operation where a government agent agrees to provide a quantity of drugs for an agreed upon price. Thereafter, when the conspirators arrive at the place designated to complete the transaction they are arrested. As is often the case, the government agents here did not have any drugs in their possession.

. The District Court found that Chalarca had demonstrated, by a preponderance of the credible evidence, that he had no actual knowledge of the quantity of narcotics involved in the conspiracy, and that he could not have reasonably foreseen the quantity involved. For example, Judge Scheindlin found that there was no evidence that Chalarca participated in any discussions regarding the amount of drugs, that he knew the terms of the transaction, that he saw any drugs, or that he had anything to do with raising the money to purchase the drugs. The District Court also credited Mr. Sanchez’s testimony, which was against his self-interest, that Chalarca was not involved in the drug deal.