                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 14 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

               v.                                      No. 97-4108
                                                   (D.C. No. 96-CR-277)
 ALFONSO BELTRAN-MARTINEZ,                               (D. Utah)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.


      Defendant Alfonso Martinez-Beltran pleaded guilty to one count of

distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2, and was sentenced to 140 months’ imprisonment. Defendant appeals

his sentence, claiming the district court improperly calculated the amount of

methamphetamine attributable to him for purposes of determining his base offense

level, and the court failed to rule on his request for a downward adjustment for



      *
        This order and judgment is not binding precedent, except under the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.
his alleged role as a minor participant. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

                                         I.

      On two separate occasions in October 1996, as part of its investigation of a

drug operation, Drug Enforcement Administration (DEA) task force undercover

agents in Salt Lake City purchased narcotics from Roberto Mendez-Gomez. On

November 21, 1996, an undercover agent, via a cooperating witness, agreed to

purchase approximately three pounds of methamphetamine from Mendez-Gomez

for a total price of $27,000. Under the terms of the agreement, Mendez-Gomez

was to deliver the methamphetamine the following morning to a hotel room rented

by the undercover agent.

      Mendez-Gomez did not arrive at the hotel room as planned on the morning

of November 22 but the cooperating witness had several telephone conversations

with his girlfriend, Brandy Barcelon, who assured the cooperating witness that the

methamphetamine would be delivered. Mendez-Gomez arrived at the hotel room

at approximately 2:50 p.m., accompanied by defendant. After they entered the

hotel room, defendant lifted his shirt to remove a one-pound package of

methamphetamine, which he gave to the cooperating witness. In return, the

undercover agent gave defendant $9,000 in cash, which defendant counted.

Mendez-Gomez told the undercover agent that two additional pounds of


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methamphetamine were being delivered to his apartment. The undercover agent

indicated he would buy the additional methamphetamine, but it would have to be

immediately because he was scheduled to leave the city on an afternoon flight.

Both Mendez-Gomez and defendant used the telephone in the hotel room in the

presence of the undercover agent to make arrangements for delivery of the

methamphetamine. Mendez-Gomez and defendant were arrested by task force

agents as they left the hotel room.

                                           II.

Calculation of defendant’s base offense level

      Defendant contends the district court erred in calculating his base offense

level under U.S.S.G. § 2D1.1(c) by finding the applicable amount of

methamphetamine at issue was three pounds (the total amount defendant agreed to

sell to the undercover agent), rather than one pound (the amount defendant

actually delivered prior to his arrest). According to defendant, he was not capable

of producing the additional methamphetamine and he did not intend to do so.

      We review a sentencing court’s drug quantity determinations for clear

error. United States v. Ruiz-Castro   , 92 F.3d 1519, 1534 (10th Cir. 1996). Under

the Sentencing Guidelines, the offense level of a defendant convicted of a

narcotics offense is ordinarily governed by the amount of narcotics involved,

including quantities negotiated but not ultimately consummated.   See U.S.S.G. §


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2D1.1(a)(3), (c), and comment n.12;        United States v. Lombardi , 138 F.3d 559,

562 (5th Cir. 1998); United States v. Desimone , 119 F.3d 217, 228 (2d Cir. 1997);

United States v. Stavig , 80 F.3d 1241, 1246-47 (8th Cir. 1996);         United States v.

Raven , 39 F.3d 428, 432 (3d Cir. 1994);       United States v. Steward , 16 F.3d 317,

321-22 (9th Cir. 1994). However, Application Note 12 to § 2D1.1 provides:

       If . . . the defendant establishes . . . he or she did not intend to
       provide, or was not reasonably capable of providing, the agreed-upon
       quantity of the controlled substance, the court shall exclude from the
       offense level determination the amount of controlled substance that
       the defendant establishes that he or she did not intend to provide or
       was not reasonably capable of providing.

To take advantage of Application Note 12, a defendant has the burden of proving

either lack of intent or lack of capability.     See Stavig , 80 F.3d at 1246-47; but see

Raven , 39 F.3d at 432-35 (discussing burden of proof issue under older version of

Application Note 12, which did not expressly impose burden on defendant; court

concluded defendant bore burden of production but not burden of persuasion).

       Here, the government clearly carried its burden of proving the quantity of

drugs by a preponderance of the evidence.            See United States v. Sloan , 65 F.3d

861, 865 (10th Cir. 1995). In particular, the government relied on the

uncontroverted factual findings in the presentence report (PSR), which indicated

defendant was personally involved in negotiations with the undercover agent to

deliver two additional pounds of methamphetamine. Record III, PSR at 5

(defendant “admitted . . . he was involved in delivering approximately 400 grams

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of methamphetamine to the [cooperating witness] and DEA task force members

for $9,000, and making arrangements for delivery of two additional pounds of the

substance”). This evidence was clearly sufficient to allow the district court to

conclude defendant had both the intent to deliver the additional methamphetamine

and the capability to do so.   See Desimone , 119 F.3d at 229 (pre-arrest

negotiations ordinarily constitute reliable admissions as to defendant’s intent and

capacity to produce particular quantity of narcotics). Although defense counsel

argued, both in response to the PSR and during sentencing, that defendant did not

intend to deliver the agreed amount and was incapable of doing so, defendant

presented no evidence on this point. Because defendant failed to satisfy his

burdens of production and proof on this issue, the district court’s rejection of his

intent and capacity arguments was not clearly erroneous.



Minor participant adjustment

       Defendant contends the district court failed to consider his request for a

two-level adjustment pursuant to U.S.S.G. § 3B1.2 for being a minor participant

in the charged crime. Prior to sentencing, defendant filed objections to the PSR

asking for the adjustment. The probation office responded that defendant was not

entitled to a minor participant adjustment because he was equally culpable with

Mendez-Gomez. At sentencing, defense counsel asked the court “to categorize


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[defendant] as a minimal participant -- not a minimal, but a minor participant” in

the charged offense. Record II at 13. After allowing both sides to argue the

issue, the court “reject[ed] [defense counsel’s] argument relative to the defendant

being a minimal participant in this transaction,” and “adopt[ed] the factual

findings and guideline application in the presentence report.”       Id. at 19-20. Prior

to entering judgment, the court filed minutes of the sentencing hearing, stating:

“The Court rejected the argument of [defense counsel] that the [defendant] should

receive a reduction for his role in the offense as a minor participant.” Record I,

Doc. 59 at 1.

       Although defendant seizes upon the district court’s reference at sentencing

to “minimal participant,” we believe the court fully intended to address and reject

defendant’s “minor participant” argument. At no time did defendant assert he

was entitled to a “minimal participant” adjustment.     1
                                                            Further, we find it

persuasive that the court adopted the findings of the PSR, which expressly

rejected defendant’s request for a minor participant adjustment. We also find

compelling the minutes of the sentencing hearing, which accurately reflect the



       1
         In his appellate brief, defendant contends he “argued in his Position With
Respect to Sentencing Factors and subsequently at sentencing itself, that he
should [be] given a reduction based upon role in the offense as a minor or
minimal participant.” Aplt’s Br. at 12. This contention is wholly unsupported by
the record. As outlined, the record indicates defendant sought only an adjustment
for being a minor participant in the offense.

                                            -6-
court’s intent to reject the “minor participant” argument. Based upon the record

before us, we conclude the court’s reference to “minimal participant” at

sentencing was simply a misstatement precipitated by defense counsel’s own

misstatement earlier in the hearing.

       We further conclude the district court did not commit clear error in refusing

to grant defendant a minor participant adjustment.       United States v. Ayers , 84

F.3d 382, 383 (10th Cir. 1996) (outlining applicable standard of review). The

sole focus in determining whether a minor participant adjustment is appropriate is

“culpability, not status or position.”     United States v. Donaldson , 915 F.2d 612,

615 (10th Cir. 1990). A minor participant is defined as “any participant who is

less culpable than most other participants, but whose role could not be described

as minimal.” Id. ; U.S.S.G. § 3B1.2, comment n.3;      see United States v. Smith , 131

F.3d 1392, 1399 (10th Cir. 1997),        cert. denied 118 S. Ct. 1109 (1998). Examples

of minimal participants include “someone who played no other role in a very large

drug smuggling operation than to offload part of a single marihuana shipment, or

in a case where an individual was recruited as a courier for a single smuggling

transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment n.2.

       As described in the PSR, defendant was at least as culpable as his

codefendants. In particular, he personally delivered the methamphetamine to the

undercover agent and accepted payment. In addition, he assisted Mendez-Gomez


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in making telephone calls to secure the additional two pounds of

methamphetamine. Defendant did not controvert these facts and did not present

any evidence of his own at sentencing. Defendant has failed to satisfy his burden

of proving by a preponderance of the evidence that he was entitled to an

adjustment for minor participation.   Smith , 131 F.3d at 1399.

      The judgment of the district court is AFFIRMED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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