                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     October 24, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 05-7042
          v.                                          (E.D. Oklahoma)
 JULIO C ESAR RO DR IGU EZ,                    (D.C. No. CR -04-00089-001-P)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, A ND ER SO N, and BROR BY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant-Appellant Julio Cesar Rodriguez pled guilty to one count of

conspiracy to possess with intent to distribute ten kilograms of cocaine, in



      *
       This order and judgment is not binding precedent, except under the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.
violation of 21 U.S.C. § 846. He was sentenced to 135 months’ imprisonment,

followed by five years of supervised release. Rodriguez appeals, arguing that the

district court erred in determining that the quantity of cocaine for sentencing

purposes was ten kilograms. W e affirm.



                                  BACKGROUND

      On July 8, 2004, during the course of an investigation she was conducting,

Rosa Reyes, an agent with the Oklahoma State Bureau of Narcotics and

Dangerous D rugs Control, received a telephone call from defendant Rodriguez, in

which he indicated he was interested in purchasing ten kilograms of cocaine “if

the price was right.” Tr. of Sentencing Hr’g at 6, R. Vol. 3. Rodriguez suggested

they meet in person to discuss the price, so Reyes and Rodriguez agreed to meet

the next day, July 9, in the parking lot of Braum’s Restaurant in Ardmore,

Oklahoma.

      Accordingly, Rodriguez and his co-defendant, Daniel Perez Castano, met

with Reyes and another agent on the 9th. Agent Reyes told Rodriguez and

Castano that the regular price for a kilogram of cocaine was $17,000, but that if

they bought all ten kilograms, the price would be $13,500 per kilogram. Reyes

testified that Rodriguez and Castano “said that ten kilograms for them w as no

problem because they had a lot of black clients w ho rock it up [i.e., turn it into

crack cocaine].” Id. at 10. She further testified that Rodriguez and Castano said

                                          -2-
“that they were going to collect or gather up the money for the ten kilograms.”

Id. at 12.

       During the evening of the 9th, Reyes and Rodriguez talked on the

telephone. Rodriguez indicated he was only able to obtain enough money to buy

four kilograms of cocaine. However, Rodriguez told Reyes that after he gave

Reyes the money for the four kilograms of cocaine, he and Castano would go to

Dallas, sell the cocaine, and bring back sufficient money to buy the remaining six

kilograms that same day (July 10th).

       On July 10, Agent Reyes and the other agent met once again with

Rodriguez and Castano outside the Braum’s Restaurant in Ardmore. W hen Reyes

entered Rodriguez’s car, Rodriguez handed her a sealed plastic bag which he said

contained $13,500 for the purchase of one kilogram of cocaine. Rodriguez

indicated Castano had the rest of the cash for the purchase of the other three

kilograms.

       Rodriguez and Castano were then arrested. Law enforcement authorities

found $13,500 in cash in the bag Rodriguez was carrying and approximately

$37,000 in the bag Castano was carrying. Additionally, authorities found a

loaded 9 mm. automatic handgun on Castano.

       As indicated, Rodriguez eventually pled guilty without a written plea

agreement. In preparation for sentencing, the United States Probation Office

prepared a presentence report (“PSR”), which recommended an advisory

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sentencing range under the United States Sentencing Commission, Guidelines

M anual (“USSG ”) (2003). 1 The PSR calculated a base offense level of thirty-two,

corresponding to ten kilograms of cocaine. It then recommended a two-level

increase for Rodriguez’s co-defendant’s (Castano’s) possession of a firearm, as

well as a two-level decrease for acceptance of responsibility, resulting in a total

adjusted offense level of thirty-two. W ith a criminal history category of II,

Rodriguez’s advisory guideline sentencing range was 135 to 168 months.

Rodriguez objected to, inter alia, the drug-quantity-based offense level, which the

district court overruled after conducting an evidentiary hearing on the day of

sentencing. Following the PSR, the district court sentenced Rodriguez to 135

months’ imprisonment, followed by five years of supervised release.

      On appeal, Rodriguez argues that the district court erred when it

determined that the amount of cocaine involved, for purposes of calculating the

base offense level for sentencing purposes under USSG §2D1.1, was ten

kilograms.



                                   D ISC USSIO N

      W e review the legal determinations underlying the district court’s

sentencing decisions de novo and we review any factual findings for clear error.

      1
       The PSR stated it was using the 2003 version of the Guidelines in arriving
at a guidelines sentence. As discussed, infra, the parties argue over which version
of the guidelines should be used to sentence Rodriguez.

                                         -4-
U nited States v. Zunie, 444 F.3d 1230, 1236 (10th Cir. 2006). “W e review a

sentencing court’s determination of the quantity of drugs attributable to a

defendant for clear error.” U nited States v. Lauder, 409 F.3d 1254, 1267 (10th

Cir. 2005).

      The guideline for a violation of 21 U.S.C. § 846 is USSG §2D1.1. Pursuant

to USSG §§2D1.1(a)(3) and (c)(4), the base offense level for offenses involving

at least five kilograms but less than fifteen kilograms of cocaine is 32. Thus, the

PSR assigned a base offense level of 32 to the ten kilograms of cocaine Rodriguez

was charged with possessing.

      As indicated, the PSR stated that it was applying the 2003 version of the

guidelines in calculating Rodriguez’s sentence. In the 2003 version of the

guidelines, Application Note 12 to §2D 1.1 provided as follow s:

             In an offense involving an agreement to sell a controlled
      substance, the agreed-upon quantity of the controlled substance shall
      be used to determine the offense level unless the sale is completed
      and the amount delivered more accurately reflects the scale of the
      offense. For example, a defendant agrees to sell 500 grams of
      cocaine, the transaction is completed by the delivery of the
      controlled substance – actually 480 grams of cocaine, and no further
      delivery is scheduled. In this example, the amount delivered more
      accurately reflects the scale of the offense. In contrast, in a reverse
      sting, the agreed-upon quantity of the controlled substance would
      more accurately reflect the scale of the offense because the amount
      actually delivered is controlled by the government, not by the
      defendant. If, however, the defendant established that 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



                                         -5-
      controlled substance that the defendant established that he or she did
      not intend to provide or was not reasonably capable of providing.

USSG §2D1.1, comment. (n.12) (2003). The last sentence of the Application

Note w as the subject of much discussion and confusion, because, in context, it

appeared to apply to reverse sting operations, but its language, referring only to

situations w here the defendant provides drugs, suggested it could not apply to

reverse stings. See United States v. Smack, 347 F.3d 533, 538 (3d Cir. 2003)

(“Note 12 is opaque and confusing.”); United States v. Hardwell, 80 F.3d 1471,

1497 (10th Cir. 1996) (“W hether the second sentence quoted from Note 12

applies in reverse stings is unsettled.”).

      To clarify this confusion, Application Note 12 was amended, effective

November 1, 2004, so that the last sentence now reads as follow s:

      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 the offense level
      determination the amount of controlled substance that the defendant
      established that the defendant did not intend to provide or purchase
      or was not reasonably capable of providing or purchasing.

USSG §2D1.1, comment. (n.12) (2004). The PSR in this case was dated

November 8, 2004. W hen Rodriguez objected to the use of the 2003 guidelines

rather than the 2004 version, the probation office responded:

      The 2004 Guidelines M anual was not published and distributed at the
      time the report was submitted. The 2003 edition of the guidelines
      has been compared to the 2004 edition and there are no Ex Post Facto
      issues arising from subsequent guideline amendments, which would

                                             -6-
      impact the sentencing options in this case. Therefore, the guideline
      computations remain the same under the 2004 edition of the
      Guidelines M anual.

Addendum to PSR , R. Vol. 4.

      Rodriguez argues the 2004 version of the guidelines, including Application

Note 12, should apply; under that version, the agreed-upon quantity is

determinative of the base offense level; and that, in this case, four kilograms of

cocaine was the agreed-upon quantity for purposes of Note 12. He further argues

that there was not a sufficiently developed and/or feasible plan for him to

purchase the remaining six kilograms and those kilograms should accordingly be

disregarded. In the language of the 2004 version of Application Note 12,

Rodriguez argues he has established that he “did not intend . . . to purchase, or

was not reasonably capable of . . . purchasing” the remaining six kilos.

      In rejecting this same argument, the district court found as follow s:

      [I]n a reverse sting, the agreed upon quantity of the controlled
      substance w ould more accurately reflect the scale of the offense
      because the amount actually delivered is controlled by the
      government, not by the defendant. In this case the defendant
      negotiated with government agents to purchase ten kilograms of
      cocaine, according to the testimony provided by Agent Reyes. The
      defendants purchased a reduced quantity of cocaine due to a cash
      problem. However, M r. Rodriguez and Agent Reyes – M r.
      Rodriguez told Agent Reyes that they could go back to Dallas, Texas,
      sell the cocaine and return with the proceeds to purchase an
      additional six kilograms of cocaine. The defendant’s lack of
      sufficient money to complete the transaction does not limit M r.
      Rodriguez’s liability for the remainder of the drug quantity agreed to
      purchase. The defendant in this case clearly had a plan to obtain



                                         -7-
      additional funds which would have sufficiently allowed for the
      purchase of the additional six kilograms of cocaine.

Tr. of Sentencing Hr’g at 44, R. Vol. 3.

      W e agree with the district court that there was sufficient evidence

supporting the conclusion that Rodriguez agreed to purchase ten kilos, and that

the full amount was properly attributed to him. 2 Indeed, Rodriguez had a specific

plan to promptly convert proceeds from the sale of the four kilograms of cocaine

into funds with which to buy the remaining six kilograms. See United States v.

Perez de Dios, 237 F.3d 1192, 1195 (10th Cir. 2001) (“‘A drug buyer who lacks

the full purchase price may nonetheless intend to obtain the negotiated quantity

by force or deception, or on a credit or consignment basis.’”) (quoting Hardwell,

80 F.3d at 1497). The district court’s finding that he had conspired to obtain ten

kilograms was not clearly erroneous.



                                  C ON CLU SIO N

      For the foregoing reasons, we AFFIRM the sentence imposed below.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




      2
      W e further agree with the probation office that the result would be the
same under either the 2003 or the 2004 guidelines.

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