                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            MAY 18 2000
                             FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-3284
                                                    (D.C. No. 93-CR-10071-2)
    MARCEL A. HARDWELL,                                     (D. Kan.)

                Defendant-Appellant.


                              ORDER AND JUDGMENT *


Before TACHA, McKAY, and ANDERSON, Circuit Judges.



         Marcel A. Hardwell appeals from his resentencing following remand by this

court for particularized and individual fact-finding. See United States v.

Hardwell , No. 96-3394, 1998 WL 43171, at **5 (10th Cir. Feb. 3, 1998)

(unpublished order and judgment). On appeal, Mr. Hardwell contends that the

district court erred by including uncharged drug amounts as relevant conduct in

its calculation of his sentence.   We review the district court’s factual findings,



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
including whether conduct is relevant conduct for sentencing purposes, under the

clearly erroneous standard.   See United States v. Richards , 27 F.3d 465, 468

(10th Cir. 1994).   Our jurisdiction over this appeal arises from 28 U.S.C. § 1291;

we affirm.   1



      The underlying facts of this case are set forth in previous decisions of this

court, see Hardwell , 1998 WL 43171, at **1;    United States v. Hardwell , 80 F.3d

1471, 1479-82 (10th Cir. 1996).    We repeat only those facts relevant to the single

and narrow issue raised on appeal: whether the drug amount from an attempted

reverse sting operation in April of 1993 should be considered relevant conduct in

sentencing Mr. Hardwell for his conviction of conspiracy to possess cocaine with

intent to distribute.

      Mr. Hardwell was arrested during a second reverse sting operation in

August of 1993. Both sting operations were targeted at Mr. Hardwell’s cousin,

Dennis Hardwell. The government’s attempt to set up the first reverse sting

operation in April of 1993 failed when, due to a malfunction of telephone

recording equipment, persons at Dennis’ residence became aware that

a conversation with an informant had been recorded. Subsequently, Marcel



1
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

                                          -2-
Hardwell went to the informant’s hotel room and confronted him, asking him why

he intended to “set up” Dennis. See Hardwell, 80 F.3d at 1490. After the

confrontation of the informant, Mr. Hardwell walked down the hall of the hotel,

banging on the walls and yelling “Five-O.” While negotiating the drug sale in the

second reverse sting operation in August of 1993, Marcel Hardwell made several

statements to an undercover agent, to the effect that he was part of an

organization distributing cocaine, that they had been dealing a kilo a day from

January to June [1993], and that they had lost four kilos of cocaine and $100,000,

but were still operating.

      When determining a sentencing range, the court must include as relevant

conduct additional drug amounts that were part of the same course of conduct or

common scheme or plan as the offense of conviction, whether or not the

defendant was convicted of offenses connected to the additional drug amounts.

See United States v. Roederer, 11 F.3d 973, 978-79 (10th Cir. 1993).

Determining relevant conduct in the drug conspiracy setting involves an inquiry

into 1) when the defendant joined the conspiracy, 2) whether the conduct in

question was in furtherance of the joint criminal activity, and 3) whether the

conduct was reasonably foreseeable by the defendant. See Hardwell, 1998 WL

43171, at **2 (citing United States v. Barragan, 915 F.2d 1174, 1179 (8th Cir.

1990)) (further citation omitted). On appeal, Mr. Hardwell contends that the drug


                                         -3-
amounts from the April 1993 incident should not be included in his sentencing

calculation because there is no evidence that he participated in a conspiracy to

distribute drugs at that time. He cites case law to support his position, and argues

that both his conduct at the April 1993 incident and his statements to the

undercover agency during the August 1993 incident can be explained in a manner

inconsistent with his participation in the attempted drug transaction in April of

1993.

        The district court concluded that the drug amounts from the April 1993

incident should be charged to Mr. Hardwell based on the following factual

findings, supported by testimony at a second resentencing hearing and other

evidence in the record:

1.      Mr. Hardwell left his employment in Houston, Texas, in April of 1993 and

        moved to Kansas, where his cousin, Dennis, was a resident.

2.      In January of 1993, prior to moving to Kansas, Mr. Hardwell had received

        several large amounts of money by wire transfer from his cousin, Dennis.

3.      Mr. Hardwell’s conduct and statements in confronting the informant during

        the April 1993 attempted reverse sting operation indicated his knowledge of

        Dennis Hardwell’s illegal drug activities.




                                          -4-
4.    Mr. Hardwell’s actions after the confrontation, banging on the walls and

      yelling, were an attempt to alert the police that he knew they were there,

      and meant to assist Dennis in some way.

5.    The statements made by Mr. Hardwell to the undercover agent during the

      August 1993 incident demonstrated his knowledge about Dennis Hardwell’s

      cocaine organization and indicated participation for a period of time.

      Our review of the record convinces us that the district court ’s factual

findings are not clearly erroneous. They also support the district court ’s further

factual finding that Mr. Hardwell was involved in Dennis Hardwell’s drug-selling

organization in April of 1993 and that, therefore, the amount of drugs involved

in that incident were foreseeable by him and properly chargeable to him for

sentencing purposes. Mr. Hardwell’s arguments on appeal lack merit. Alternate

theories of innocence based on the underlying facts do not demonstrate that the

district court ’s findings are clearly erroneous under a preponderance of the

evidence standard, based on the evidence as a whole. See Richards, 27 F.3d

at 468; United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000).




                                         -5-
     The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




                                       -6-
