                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2001

United States v. Yeung
Precedential or Non-Precedential:

Docket 99-2040




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"United States v. Yeung" (2001). 2001 Decisions. Paper 32.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/32


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed February 26, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 99-2040 and 99-2048

UNITED STATES OF AMERICA

v.

SAU HUNG YEUNG
a/k/a
FUK CHAO HUNG

Sau Hung Yeung,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. Nos. 98-cr-28-1 and 99-cr-134-1
District Judge: The Honorable Thomas N. O'Neill, Jr .

Argued: October 30, 2000

Before: SCIRICA, NYGAARD, and BARRY , Circuit Judges

(Opinion Filed: February 26, 2001)

       David L. McColgin, Esq. (Argued)
       Defender Association of Philadelphia
       Federal Court Division
       437 Chestnut Street
       Lafayette Building, Suite 800
       Philadelphia, Pennsylvania
        19106-2414

        Attorneys for Appellant
       Ronald G. Cole, Esq. (Argued)
       Assistant United States Attorney
       United States Attorney's Office
       Eastern District of Pennsylvania
       615 Chestnut Street
       Philadelphia, Pennsylvania 19106

        Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge.

Sau Hung Yeung was convicted by a jury of conspiring to
distribute heroin in violation of 21 U.S.C.S 846,
distribution of heroin in violation of 21 U.S.C. S 841(a)(1)
and (b)(1)(C), and distribution of heroin within 1000 feet of
a school in violation of 21 U.S.C. S 860. Additionally, Yeung
pleaded guilty to a separate indictment which char ged him
with being a felon in possession of a weapon. The
convictions were consolidated for purposes of sentencing
and, on December 9, 1999, the District Court sentenced
Yeung to concurrent terms of 97 months imprisonment. He
now appeals, disputing only the amount of the her oin on
which the District Court based his sentence. W e have
jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C.
S 3742(a), and review for clear err or the District Court's
factual findings as to the quantity of drugs. United States v.
Paulino, 996 F.2d 1541, 1545 (3d Cir . 1993). For the
reasons which follow, we will vacate the sentence and
remand for proceedings in accordance with this opinion.

I. BACKGROUND

Because the government has explicitly agr eed with the
Statement of Facts set forth in Yeung's brief, we will
replicate that recitation in full, deleting only the "Overview,"
the footnotes, and the bulk of the citations to the appendix.

       The Trial Evidence

        [Daryl] Nguyen became a cooperating infor mant for
       the DEA after his own arrest for distribution of heroin

                                2
in 1993. He pleaded guilty to those charges pursuant
to an agreement that required him to cooperate with
the DEA in order to obtain a reduced sentence. Nguyen
(hereinafter "the informant") was instructed by DEA
agent John Foley to see if he could buy an ounce of
heroin from Yeung, whom he knew as Fuk Chow Hung.

 In the spring of 1994, the informant told Yeung,
whom he had met half a year to a year earlier , that he
was interested in buying heroin, and he asked for a
sample. On May 11, 1994, Yeung called the informant
and told him he had a sample. The informant met with
Yeung and Zheng (whom he knew as Kwai Jai) at a
gambling parlor in Philadelphia and told them he was
"interested in buying an ounce." Y eung and Zheng,
however, "said an ounce would not do" and that "they
would sell [the informant] half a unit or a unit." Yeung
said a unit would cost $70,000. No agreement was
reached for any purchase, but Yeung did give the
informant a very small sample of heroin wrapped in
plastic, which the informant later gave to DEA agent
John Foley. (The sample was so small that it was
entirely used up during the DEA field test.)

 The informant had occasional contact with Yeung
and Zheng over the next several months, and on July
27, 1994, he received a page from Y eung. The
informant returned the page and Y eung told him to
come to a karaoke club at Tenth and Winter Streets to
pick up another sample. The informant went to the
karaoke club and met with Yeung and Zheng in a small
VIP room. Again, the informant, who was under strict
instructions from agent Foley to buy only one ounce,
told Yeung and Zheng that he only wanted one ounce.
Yeung said, "No can do," and repeated that he would
"only sell half a unit or a unit." Yeung said the price for
half a unit would be $40,000. Again, no agreement for
the purchase of heroin was reached. Zheng gave the
informant a sample (weighing 0.4 grams), and the
informant left, later turning the sample over to agent
Foley.

 On July 29, 1994, the informant had a tape-recorded
phone conversation with Yeung and Zheng in which the

                        3
informant said, "Hey, it's not -- it's not alright, only
one orange is needed." The phrase "one orange" meant
one ounce. Zheng replied, "It's not alright, but one
orange will not work," which meant that Zheng would
not sell him an ounce. The informant r eplied, "Hey, it's
not all right with you over there. He doesn't have that
much with him. He only want one orange." By this, the
informant meant that his "connection doesn't want the
whole unit, he only needed an ounce."

 In August 1994, agent Foley gave the infor mant a
"drug lord car" with hidden compartments for him to
show to Yeung and Zheng in order to build credibility.
On August 26, 1994, the informant (who was wearing
a "body recorder") showed the car to them, claiming
that it belonged to the person he was buying drugs for
-- a "Hispanic guy." He said that the Hispanic guy
would take two units of heroin in another few weeks.
Yeung told the informant to "talk to your side clearly
and make sure of it," meaning that he should talk with
the Hispanic guy and "make sure he r eally wants it."
Again, no agreement was reached for the purchase of
heroin at any quantity or for any price.

 In September 1994, in an effort to obtain the
telephone numbers Yeung and Zheng wer e calling,
agent Foley gave the informant a cell phone and
instructed him to sell it to Zheng for $100 as a"cloned"
cell phone or illegal duplicate cell phone, that would
supposedly be billed to some unsuspecting person. On
September 26, 1994, the informant met with Zheng
and sold him the phone. During their conversation,
which was taped, the informant asked if Zheng could
sell him two ounces. Zheng said he could not, and the
"units" could not be "broken down" into ounces.

 During the next several weeks, the infor mant
continued to talk with Yeung and Zheng, and again
told them, as per his instructions from agent Foley,
that he just wanted to buy "an ounce" of her oin.
Finally, in a taped conversation on October 17, 1994,
Zheng agreed to sell him one ounce.

 On October 18, 1994, the informant met Zheng in
Chinatown at about 1:30 p.m., and Zheng told him to

                        4
       wait for his phone call. The informant r eceived a page
       later that day. He returned the page and spoke with
       Yeung, who told him to come and get the ounce of
       heroin at his restaurant at Broad and York. At 4:30
       p.m., the informant drove up to the r estaurant, where
       he saw Yeung and Zheng outside. He gave Zheng
       $5000 (provided by the DEA) and Zheng put an ounce
       of heroin on the floor of the informant's van. The
       informant left and turned the her oin over to agent
       Foley.

        The informant made no other purchases of heroin
       from Yeung and Zheng, and there wer e no negotiations
       or even discussions for any other purchases.

Appellant's Br. at 4-8.

As noted above, Yeung complains only of the amount of
heroin the District Court tarred him with at sentencing.
Again, the government agrees with Y eung's recitation of
how that sentence came to be and, again, we r eplicate it in
full:

       The Sentencing

        Defense counsel objected at sentencing to the base
       offense level in the presentence r eport ("PSR") on the
       ground that it was based on the one "unit" quantity of
       heroin, instead of the one ounce quantity actually sold.
       One "unit," which weighs 1-1/2 pounds, or 680 grams,
       is within the 400 to 700 gram range requir ed for level
       28. One ounce of heroin, or 29 grams, is within the 20
       to 40 gram range required for level 18. Defense counsel
       argued that there never was an agr eement to sell a unit
       to the informant, and that under Application Note 12
       to U.S.S.G. S 2D1.1, the amount actually sold"more
       accurately reflects the scale of the of fense." (App.
       320a). The court overruled defense counsel's objection,
       stating:

       I find that the evidence shows that [ther e was] a
       conspiracy by the defendants to sell a unit and then
       later half of a unit and therefore, that the probation
       office has calculated the amount of drugs corr ectly.

       (App. 333a).

                               5
        Mr. Yeung's guidelines wer e thus calculated starting
       with a base offense level of 28. One point was added
       because the sale of the heroin took place within 1000
       feet of a school. The total offense level was therefore
       29, and in criminal history category "II," the guideline
       range was 97 to 121 months. The gun possession
       charge had a base offense level of 14, and under the
       Multiple Count provisions of U.S.S.G. S 3D1.4, this
       offense, being more than 8 levels lower than the level
       for the drug offense, did not have any ef fect on the
       total offense level.

        Had Mr. Yeung's sentence been based on the one
       ounce quantity of heroin actually sold, his of fense level
       would have been 18 plus 1, or 19. Under the Multiple
       Count provision of U.S.S.G. S 3D1.4, the gun
       possession charge (being 5 levels lower than the offense
       level for the drug charge) would have r equired a one
       level increase, bringing the total combined of fense level
       to 20. In criminal history category II, the guideline
       range would have been 37 to 46 months.

Appellant's Br. at 8-10.

II. DISCUSSION

At the outset, it bears mention that this is an unusual
case in that courts typically see agreements or conspiracies
between prospective sellers and buyers of drugs and not, as
here, an agreement only between sellers. This case is also
complicated by the fact that although Yeung and Zheng
would have liked to sell and presumably would have sold
Nguyen one unit or one-half unit or even two units, they
never negotiated for more than one ounce because Nguyen
simply dug in his heels. It is, of course, crystal clear that
the unusual or complicated nature of this case is only such
for purposes of sentencing. Yeung was pr operly convicted of
conspiring with Zheng to distribute heroin-- the amount of
heroin, as long as it is a measurable amount, is irrelevant
to the conspiracy charge -- and Yeung does not argue
otherwise.

The question before this Court, therefor e, is exceedingly
narrow: whether Application Note 12 to U.S.S.G.S 2D1.1

                                6
counsels that Yeung be sentenced to the one ounce
completed transaction, the one unit (or one-half unit or two
units) that he and Zheng would have liked to have sold to
Nguyen, or the aggregated amount of one unit (or one-half
unit or two units) plus one ounce. The District Court
sentenced appellant based on one unit which, after the
appropriate adjustments were made, placed Yeung in a
guideline range of 97-121 months.

Section 2D1.1 establishes the base offense level for
defendants who agree or conspire to sell drugs, based upon
the quantity of drugs involved. Application Note 12 to
S 2D1.1 sets forth the method by which the appropriate
quantity of drugs is determined if the of fense involves
negotiation to traffic in drugs. While the parties do not
dispute the applicability of Application Note 12, they
disagree on how it should be applied her e. Yeung argues
that the plain meaning of Application Note 12, when
applied to the facts of this case, mandates that he should
have been sentenced within the 36 to 46 month range for
the one ounce completed transaction. The gover nment
argued at sentencing that the measure of drugs should be
one unit and argues before us that the sentence of 97
months should be affirmed although it initially assumed,
wrongly it now concedes, that the District Court aggregated
the one unit and one ounce and continues to ar gue, again
wrongly, that aggregation is appropriate although, were
that the case, the sentence would be higher than the
sentence which it seeks to affirm.1 Who is right and who is
wrong is, as should be obvious, of great significance to
Yeung in terms of the time he is r equired to serve.

Yeung is right. Prior to November 1, 1995, Application
Note 12 stated: "In an offense involving negotiation to traffic
in a controlled substance, the weight under negotiation in
an uncompleted distribution shall be used to calculate the
applicable amount." U.S.S.G. S 2D1.1, comment. (n.12)
(1992) (formerly S 2D1.4, comment. (n.1)). Notably, this
_________________________________________________________________

1. Parenthetically, and without more ado, we dispose of the government's
aggregation argument because it is based on the premise that the one
ounce distribution was merely a "prelude" to an anticipated one unit
transaction. There is no evidence to support this premise.

                               7
prior version was silent as to the amount of drugs to be
considered in a completed transaction, as we have here. For
that reason alone, we note, pre-amendment completed
transaction cases are not terribly instructive.

Effective November 1, 1995, Amendment 518 to the
Guidelines deleted the language of then-Application Note 12
and inserted, as we put it, "a new set of instructions in its
place." United States v. Marmolejos, 140 F.3d 488, 490 (3d
Cir. 1998).2 Although we found in Marmolejos that the
amendment merely clarified S 2D1.1 rather than effecting a
substantive change, the amendment was nonetheless
significant given that "Application Note 12 now specifies
that the actual weight delivered, rather than the weight
under negotiation, should be used for calculating a
defendant's sentence if the sale was completed."
Marmolejos, 140 F.3d at 491. Mor eover, it is quite clear
from the language of amended Application Note 12 that
when a sale is completed, the amount deliver ed will
typically "more accurately reflect[ ] the scale of the offense"
unless a "further delivery" is "scheduled" or at the very
least is "agreed-upon." No further delivery was scheduled --
or agreed upon -- here.

In the Commission's words, and as relevant here,
Amendment 518 "revises the Commentary toS 2D1.1 to
provide that in a case involving negotiation for a quantity of
a controlled substance, the negotiated quantity is used to
determine the offense level unless the completed
transaction establishes a different quantity . . . ." U.S.
Sentencing Guidelines Manual app. C at 344 (1997).
Application Note 12, as amended, itself reads, in relevant
part:

       In an offense involving an agreement to sell a
_________________________________________________________________

2. An application note must be given "contr olling weight unless it is
plainly erroneous or inconsistent with the r egulation." United States v.
Miller, 224 F.3d 247, 253, n.8 (3d Cir . 2000). Although Yeung's conduct
occurred in 1994, the District Court corr ectly used the Guidelines
Manual in effect at sentencing because the 1995 amendment to
Application Note 12 did not violate the ex post facto clause of the
Constitution but merely clarified section 2D1.1. See U.S.S.G.
S 1B1.11(b)(1); United States v. Marmolejos, 140 F.3d 488 (3d Cir. 1998).

                               8
       controlled substance, the agreed-upon quantity of the
       controlled substance shall be used to deter mine the
       offense level unless the sale is completed and the
       amount delivered more accurately r eflects the scale of
       the offense. For example, a defendant agr ees 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 mor e accurately
       reflects the scale of the offense.

Marmolejos and Application Note 12 str ongly suggest, if
not require, that if a defendant is to be tarred for
sentencing purposes with a larger quantity than was
delivered, that quantity must have been negotiated or
agreed upon prior to the delivery -- the partial delivery was,
in effect, a down payment. Here, no quantity was ever
"negotiated" between Yeung and/or Zheng and Nguyen
beyond the agreed-upon one ounce. Moreover , phrases
such as "weight under negotiation," which we used in
Marmolejos, and "negotiated quantity," which the
Commission used in describing the amendment, suggest, if
not require, an agreement between buyer and seller, with
the atypical nature of this case thus r earing its head.
Certainly, if Application Note 12 were to be r estricted to
buyer-seller negotiations and deliveries, and putting aside
Nguyen's informant status and the fact that it is not any
agreement with him that is pressed, the one ounce clearly
"accurately reflects the scale of the of fense."

While there is a paucity of case law construing
Application Note 12, as amended, at least one case leaves
little doubt that a seller-seller agreement will do for
purposes of sentencing one or both of the sellers. See
United States v. Gomes, 177 F.3d 76 (1st Cir. 1999). In that
case, factually similar in some respects but factually
dissimilar in one critical respect, the Court, citing only pre-
amendment case law and recognizing that the language of
Application Note 12 "still needs refinement," upheld the
District Court which found that the kilo intended to be sold
and not the ounce actually delivered "mor e accurately
reflects the scale of the offense." See Gomes, 177 F.3d at
85.

                               9
Separate and apart from the other distinctions Yeung
would draw between that case and this, in Gomes , while no
sale beyond the sale of a one ounce sample was made,"the
evidence permitted the District Court to find that
[defendant] Quadros had arranged with[co-defendant]
Aguiar to make the sale of a kilo or had aided and abetted
Aguiar's effort to make such a sale" i.e. a "further delivery
[was] scheduled," or "agreed-upon," to use the phrases used
in Application Note 12. Id. at 84. Indeed, the fact that the
sale was of a "sample" was itself a harbinger of a larger
transaction to follow. Here, of course, ther e is no evidence
that a "further delivery" was negotiated, much less
"scheduled" or "agreed-upon." Between October 18, 1994,
when the one ounce distribution was made, and November
19, 1998, when Yeung was arrested, ther e is no evidence
that any further delivery was even discussed by Y eung
and/or Zheng and Nguyen and at no time befor e October
18, 1994 was there an agreement even between Yeung and
Zheng that beyond the one ounce, a sale of an amount
certain was "arranged." The very predicate for the Gomes
conclusion fails.

United States v. Felix, which appears to be another seller-
seller conspiracy, supports the result we r each here. See
United States v. Felix, 87 F.3d 1057 (9th Cir. 1996). In
Felix, the co-conspirators had agreed to pr ovide a larger
amount of cocaine than was, in fact, deliver ed. The Ninth
Circuit found that, under amended Application Note 12, the
District Court erred by not sentencing the co-conspirators
for the lesser amount of cocaine actually deliver ed rather
than the amount they had agreed to provide because the
sale was complete with no further delivery contemplated
and, therefore, the actual delivery mor e accurately reflected
the scale of the offense than the earlier pr omised larger
amount.

The District Court in this case similarly err ed when it
ruled that "the evidence shows . . . a conspiracy by the
defendants to sell a unit and then later a half of a unit and
therefore, that the probation office has calculated the
amount of the drugs correctly." 333a. While, as a matter of
conspiracy law, Yeung and Zheng certainly conspired to sell
drugs, as a matter of sentencing law the quantity of drugs

                               10
found was clearly erroneous. Moreover , we note, the
probation officer arrived at the base of fense level for one
unit (or one-half unit) for a different r eason than the
District Court, finding that "During the conversations
between [Yeung] and [Nguyen] they discussed the sales" of
those quantities. See Addendum to PSR. Mer e discussions,
whether between buyer and seller or seller and seller, are
hardly enough and, certainly, will not carry the day when
they preceded the only transaction which was, in fact,
negotiated and the agreement as to which was the
culmination of any discussions over quantity.

One final note. Contrary to what the dissent says, we do
not base our conclusion on the fact that Yeung never
"negotiated" with Nguyen in what was, after all, a
seller/seller conspiracy to sell more than an ounce. In any
event, repeated but continually rejected offers to sell
varying amounts do not negotiations make. And, of course,
Yeung and Zheng, the two sellers, did not and virtually by
definition could not negotiate with each other . Neither do
we base our conclusion on any reading of Application Note
12 which would require that a futur e drug delivery must be
"scheduled" if "scheduled" is only narr owly defined, as the
dissent apparently defines it, as a futur e transaction
specific as to time and place. Rather, we base our
conclusion on the fact, and fact it be, that ther e was
insufficient evidence to show an agreement to sell -- and
certainly, there was no agreement to buy-- beyond the one
ounce.

Although determining the appropriate drug quantity for
sentencing purposes is not a precise exer cise, before
sentencing a defendant for more than he or she actually
delivered, Application Note 12 requir es, at minimum,
evidence of an agreement as to the quantity to be sold in
the future, even as between two sellers. Stated somewhat
differently, once a delivery is made and there is insufficient
evidence to show that that delivery was merely a prelude to
a larger "scheduled" or "agreed-upon" deal, the amount
delivered will control for sentencing purposes. Yeung was
sentenced based on one of several quantities bandied about
by he and Zheng even though the only evidence of an
agreement of any kind was the one ounce actually sold.

                               11
Had there been evidence of an agreement beyond that one
ounce, it would have been eminently appropriate for Yeung
to receive the sentence he received. Because, however, it is
only the one ounce which is supported by the evidence, it
is on that amount that Yeung must be r esentenced.

We will vacate the sentence and remand for proceedings
in accordance with this opinion.3
_________________________________________________________________

3. Yeung, somewhat in passing, invokes Apprendi v. New Jersey, 120
S.Ct. 2348 (2000). Given that the sentence imposed was not beyond the
statutory maximum, we do not see the applicability of Apprendi to this
case.

                               12
NYGAARD, Circuit Judge, dissenting.

The majority has done a masterful job of trying to make
sense of a guideline provision, which, in the context of
these facts, is counterintuitive at best, and is penologically
nonsensical at worst. As explained by the majority, Section
2D1.1 of the Sentencing Guidelines establishes the base
level offense for defendants who agree or conspire to sell
narcotics, based upon the quantity of drugs involved.
Application Note 12 to S 2D1.1 addresses the method for
determining the appropriate quantity. Specifically, it
requires that the agreed-upon quantity of a controlled
substance shall be used to determine the of fense level
unless the sale is completed and the amount delivered more
accurately reflects the scale of the of fense. See U.S.
SENTENCING GUIDELINES MANUAL S 2D1.1, cmt. n.12
(1998).

Although not explicitly addressed by Application Note 12,
I agree with the majority that a seller/seller agreement is
sufficient to meet this test. We diver ge, however, thereafter.
According to the majority, the District Court erred by
holding that a seller/seller agreement was consummated
that more accurately reflected the scale of the offense. I
disagree. I believe that although Yeung and Zheng only sold
and delivered an ounce, they agreed to sell the unit.
Further, I believe the District Court pr operly exercised its
discretion in holding that the unit mor e accurately
measured the scale of the offense. Because I conclude that
Yeung's sentence should instead reflect the unit (680
grams) of drugs that he repeatedly offer ed to Nguyen, I
respectfully dissent.

It is undisputed that Yeung and Zheng wanted to sell a
unit of drugs to Nguyen. Accordingly, the first question is
whether this unit was the amount negotiated or agr eed
upon. If so, we must determine whether this unit more
accurately reflects the scale of the of fense than the amount
delivered. The majority concludes that Y eung and Zheng
never agreed to sell a unit, that Nguyen never agreed to buy
a unit, and that the ounce Yeung deliver ed, rather than the
unit he wanted to sell, more accurately r eflects the scale of
his offense. In arriving at this conclusion, the majority
holds that Application Note 12 requires a further scheduled

                               13
drug delivery or, at the very least, an agr eement to deliver
more drugs before a sentencing court can consider a
negotiated drug quantity to measure the scale of an offense.
Maj. Op. at 8.

According to the majority, rejected but r epeated offers do
not constitute negotiations.1 Instead, the seller and buyer
must schedule a further delivery of a specified quantity of
drugs. Maj. Op. at 6, 8-11. Therefore, because Nguyen
resisted Yeung's attempts to sell mor e than one ounce and
never scheduled any further deliveries, the majority
concludes that there is insufficient evidence to show an
agreement to sell the unit. In my view, this interpretation
and application of Note 12 is incorrect and r eflects neither
the gravity of the offense nor the culpability of the
appellant.

I note first that the plain language of Application Note 12
does not require a scheduled futur e delivery in order for a
quantity of drugs to be considered "negotiated or agreed
upon." Nor does Application Note 12 requir e scheduled
future deliveries to use a negotiated or agr eed upon
quantity of drugs, instead of the amount deliver ed, to
measure the offense level. In one of its examples,
Application Note 12 simply notes that a lack of further
deliveries is a factor to consider. It states: "a defendant
agrees to sell 500 grams of cocaine, the transaction is
completed by delivery of the controlled substance-actually
480 grams of cocaine, and no further delivery is scheduled.
In this example, the amount delivered mor e accurately
reflects the scale of the offense." U.S. SENTENCING GUIDELINES
MANUAL S 2D1.1, cmt. n.12 (1998) (emphasis added).

Although this example suggests that a future scheduled
delivery is germane to an offense level determination, it is
not an absolute requirement nor does it control every
factual scenario. The facts of the present case are
distinguishable from the example and, ther efore, the lack of
scheduled future delivery is neither contr olling nor even
helpful.
_________________________________________________________________

1. This approach would likely surprise labor negotiators, who often
negotiate for extended periods of time and make hundreds of offers
before a contract is executed.

                               14
In the Application Note's example, the defendant
controlled the amount delivered. The defendant ultimately
delivered a smaller amount based upon his own decision.
Here, however, the amount deliver ed clearly does not reflect
Yeung's and Zheng's intent because they did not control the
amount delivered. Instead, the amount was contr olled by
the informant and reflects his pur chasing limitations.
Yeung and Zheng sold one ounce only because the
informant refused to buy more. It had nothing to do with
Yeung's and Zheng's intention, capability, or agreement to
sell more. The record reveals that Yeung and Zheng not
only repeatedly offered to sell the entire unit, but
continually insisted upon doing so. Had the infor mant
wanted to purchase more, Yeung and Zheng would have
sold it to him.

For example, during their first meeting, Y eung and Zheng
told Nguyen that they would only sell unit and half-unit
quantities; therefore, "an ounce would not do." Appellant's
Br. at 4-5. In short, Yeung and Zheng were insistent, ready,
willing, and able to sell the unit of drugs. This conduct
amounts to more than "mere discussions" as the majority
contends. It constitutes an agreement between Y eung and
Zheng to sell the unit of drugs, despite Nguyen's r esistance
and his resulting refusal to accept a lar ger amount or
schedule future purchases. Although this agreement did
not involve a buyer, it is an agreement nonetheless.
Accordingly, I believe that Yeung's and Zheng's attempts to
sell the unit were negotiations, that their obvious desire to
sell the larger amount is incontrovertible evidence of an
agreement, and that the unit that they agr eed to sell more
accurately reflects the scale of Yeung's offense, even in the
absence of a plan for future delivery.

United States v. Gomes, 177 F.3d 76, 84 (1st Cir. 1999),
supports my position. In Gomes, the Court of Appeals for
the First Circuit reviewed the District Court's determination
that a defendant charged with conspiracy and two counts
of distribution was responsible for one kilogram of cocaine.
The defendant had arranged a sale with a buyer , who was
an undercover agent with the Drug Enfor cement
Administration. Before the meeting, the defendant advised
the seller that the potential buyer wanted a kilogram of

                               15
cocaine. At the meeting, however, the buyer surprised the
defendant and seller by requesting a one ounce sample
before buying the kilogram; he assured them that if it was
good, he would contact them. No later sale was made,
however. Nonetheless, the District Court found that the
defendant arranged and aided and abetted a sale of a
kilogram of cocaine. See Gomes, 177 F .3d at 84.

The Court of Appeals began its review of the District
Court's holding with the language of Application Note 12. It
noted, as I believe, that the language was not absolute. It
did not require courts always to use the amount delivered.
See id. at 85. Rather, it established a presumption that the
agreed upon amount governed "unless" a sale occurred and
the quantity sold more accurately reflected the scale of the
offense. See id. Moreover , the Note's example, in which a
defendant, who agrees to sell 500 grams but then delivers
only 480 grams, was responsible for only 480 grams is not
a "universal requirement." The example involved similar
amounts and a defendant, rather than a buyer , who
decided to deliver less than promised. In addition, the
example did not involve a defendant who, like Y eung,
"independently conspir[ed] with or aid[ed] an accomplice in
the sale." Accordingly, the Court held that because the
defendant conspired to sell a kilogram and yet failed only
because the buyer refused to accept the full amount, the
kilogram and not the ounce actually delivered"more
accurately reflect[ed] the scale of the offense." Id. at 85.

The Gomes court stressed that the buyer rather than the
defendant controlled the amount of drugs sold. As in the
present case, the defendant and the seller would have sold
a larger amount if not for the buyer's r esistance. The only
"plan" for a "future delivery" in Gomes was the buyer's
assurance that he would contact the seller for mor e cocaine
if it was "good." In essence, the agreement in Gomes is the
same as the one in this case. The defendant in Gomes
agreed and arranged to make a sale of a kilogram of drugs
(the larger amount) just as Yeung and Zheng agreed and
attempted to arrange a sale of the unit. As such, the
majority's attempt to distinguish Gomes fr om the present
case is misplaced.

                                16
Finally, I would like to note that in my view, we should
review the District Court's decision (that the quantity
agreed upon rather than delivered "mor e accurately reflects
the scale of the offense") for an abuse of discretion. The
majority does not reach this issue because it concludes
that the agreed upon amount and the amount delivered
were the same. However, because I believe there was an
agreement to deliver a greater quantity, I must necessarily
discuss our standard of review.

Our review under an abuse of discretion standard is
quite narrow. A finding of abuse is appr opriate only where
the judicial action is arbitrary, fanciful, or unreasonable, or
when improper standards, criteria, or pr ocedures are used."
Evans v. Buchanan, 555 F.2d 373, 378-79 (3d Cir. 1977).
Stated differently, discretion is abused only where "no
reasonable man would take the view adopted by the trial
court." Lindy Bros. Builders, Inc. v. American Radiator &
Standard Sanitary Corp., 540 F.2d 102, 115 (3d Cir. 1976).

With this deferential standard in mind, it can hardly be
said that the District Court abused its discr etion in
concluding that the unit that Yeung and Zheng agreed to
sell, rather than the ounce they delivered, mor e accurately
reflects Yeung's culpability and hence the scale of his
offense. The record overwhelmingly supports the District
Court's conclusion. As noted above, Yeung wanted and was
fully prepared to sell the full unit. The fact that he only sold
the ounce had nothing to do with his intentions or
capability. Rather, the informant limited the amount
delivered and bought. Therefore, Y eung should be held
responsible for the larger amount since this is the amount
he intended to sell. To hold otherwise would ignore this
reality, and essentially allow an infor mant's limitations to
dictate the culpability of a defendant -- an outcome that
belies common sense and could not have been intended by
the Sentencing Commission.

In sum, I disagree with the majority's interpr etation of
Application Note 12. I believe that the District Court's
sentence was a proper exercise of its discretion, and would
affirm its judgment. Therefore, I respectfully dissent.

                               17
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               18
