                                                               NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      __________

                                      No. 15-2618
                                      __________

                            UNITED STATES OF AMERICA

                                           v.

                           ANEUDI MANUEL MARQUEZ,
                                             Appellant
                                  __________

                    On Appeal from the United States District Court
                           for the District of New Jersey
                          (D. N.J. No. 1-15-cr-00129-001)
                          District Judge: Robert B. Kugler

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 14, 2016

         BEFORE: FUENTES, CHAGARES, and RESTREPO Circuit Judges


                                 (Filed: April 5, 2016)
                                      __________

                                       OPINION*
                                      __________




   *
     This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
FUENTES, Circuit Judge:

       Defendant Aneudi Marquez appeals his sentence on one count of conspiring to

distribute cocaine, arguing that the District Court erred by imposing a sentence of 70

months’ imprisonment. For the reasons that follow, we will affirm the judgment of the

District Court.

 I. BACKGROUND

       In September 2009, Defendant Aneudi Marquez agreed with two other individuals,

Rafael Alvarez and Nolly Paulino, to purchase cocaine from a DEA confidential

informant (“CI”).1 The operation began in 2009 when Paulino and an unidentified

individual negotiated to buy 50 kilograms of cocaine for $1,200,000 from the CI and an

undercover officer. Paulino and his colleague apparently told the CI and the undercover

officer that they would need to check with their boss prior to purchasing the cocaine.

       Soon after, Marquez, Paulino, and Alvarez traveled to Cherry Hill, New Jersey to

meet with the CI.     After an argument ensued as to the proposed location of the

transaction, a coffee shop, Marquez said that he did not need to deal with the CI. The

three men then left and began driving toward New York in two separate vehicles, a Ford

Escape and a Volkswagen Jetta. Shortly thereafter, authorities pulled both vehicles over

on the highway. At that time, Paulino had $600,000 in heat-sealed plastic bags under the

seat of his SUV. Marquez, who was riding in the Volkswagen with Alvarez, had what




   1
     The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction over the challenge to the sentence under 18 U.S.C. § 3742(a).
                                             2
appeared to be a drug ledger, which contained detailed accounts of various drug deals,

including drug amounts purchased and debts owed.

       All three men were arrested, and Marquez pled guilty to one count of conspiring to

possess with intent to distribute five kilograms or more of cocaine. At his sentencing

hearing, he argued for a three-level downward adjustment to his sentence. To that end, he

conceded that U.S.S.G. § 2X1.1 may not apply to the court’s sentencing analysis, but

nevertheless urged the court to consider the uncompleted nature of the crime when

determining his sentence under the factors set forth in 18 U.S.C. § 3553.2            After

considering the arguments of the parties, the District Court sentenced Marquez to a

bottom-of-the-Guidelines-range sentence of 70 months’ imprisonment.

       On appeal, Marquez relies upon § 2X1.1(b), arguing that he was entitled to a

three-level sentencing reduction because the court failed to consider as a factor the

uncompleted nature of the crime. He further contends that his sentence was substantively

unreasonable, even though he received a bottom-of-the-Guidelines range 70 month

sentence. In response, the government argues that Marquez waived his § 2X1.1 argument

by abandoning it in the District Court, and that his sentence was substantively reasonable

given, among other things, the nature of his involvement in the conspiracy.

II. DISCUSSION


   2
      Section 2X1.1, entitled “Conspiracies, Attempt, Solicitation (Not Covered by a
Specific Offense Guideline),” provides for a three-level reduction in the offense level if
the co-conspirators did not “complete[] all the acts [they] believed necessary on their part
for the successful completion of the substantive offense or the circumstances demonstrate
that the conspirators were about to complete all such acts but for apprehension or
interruption by some similar event beyond their control.” U.S.S.G. § 2X1.1(b)(2).
                                             3
         Whether a defendant has waived a claim of error through abandonment can be

determined by this Court in the first instance.3 Here, the record suggests that Marquez’s

counsel disclaimed the applicability of § 2X1.1(b) to warrant a three-level sentencing

reduction before the District Court.4 Thus, there is reason to conclude that Marquez

waived reliance on this argument on appeal.5 However, we need not decide this issue, for

even if we were to determine that this argument had not been waived, we also conclude

that Marquez’s reliance on § 2X1.1(b) is misplaced.

         U.S.S.G. § 2X1.1(c)(1) provides that “When an attempt, solicitation, or conspiracy

is expressly covered by another offense guideline section, apply that guideline section.”

The commentary to Section 2X1.1 also provides a list of “[o]ffense guidelines that

expressly cover conspiracies,” which includes § 2D1.1.6 Moreover, the title of § 2D1.1

states categorically that the guideline covers “Unlawful Manufacturing, Importing,

Exporting, or Trafficking (Including Possession with Intent to Commit these Offenses);



   3
       See, e.g., United States v. Console, 13 F.3d 641, 674 (3d Cir. 1993).
   4
    Although Marquez reserved the right to argue for a three-level sentencing reduction
under § 2X1.1 in his plea deal, Marquez’s counsel agreed “more or less” with the District
Court’s statement during Marquez’s sentencing hearing that “because there’s a specific
provision for a drug conspiracy 2X1.1 doesn’t apply.” (App. at 27-28.)
   5
     See United States v. Sussman, 709 F.3d 155, 162 (3d Cir. 2013) (defendant waived
claim on appeal where he had conceded same in his motion before the district court);
Console, 13 F.3d at 674 (claim that was expressly abandoned at sentencing hearing could
not be raised on appeal); United States v. Lloyd, 10 F.3d 1197, 1209 (6th Cir. 1993)
(defendant could not raise on appeal a claim that his attorney conceded in district court).
   6
     U.S.S.G. § 2X1.1, cmt. n.1; see also Watterson v. United States, 219 F.3d 232, 236
n.8 (3d Cir. 2000) (“section 2D1.1 and 2D1.2 clearly indicate that they are intended to
apply both to substantive violations of the statutory provisions upon which they are
premised and to conspiratorial and attempted violations thereof.”).
                                               4
Attempt or Conspiracy.”7 Based on these provisions, we conclude that the plain text of

the Guidelines dictates the application of § 2D1.1 on the facts presented, and therefore

Marquez’s argument is meritless.8 In consequence, the District Court did not err when it

declined to grant a three-level sentencing reduction under § 2X1.1(b).

         Finally, Marquez claims that his bottom-of-the-Guidelines-range sentence of 70

months’ imprisonment was substantively unreasonable.9 Absent any significant

procedural error, we must “give due deference to the district court’s determination that

the 3553(a) factors, on a whole, justify the sentence.”10      We find Marquez’s final

argument unavailing. In fact, the record is replete with evidence suggesting: (1) that

Marquez and his co-conspirators had $600,000 in heat-sealed packs ready to purchase the

cocaine; (2) that Marquez communicated with the CI with an intent to complete the drug

deal; (3) and that the only reason that Marquez did not complete the deal was because he

“believed the ‘seller’ was in fact associated with law enforcement.”11 Moreover, we find

it telling that Marquez was later arrested while a fugitive after an indictment had issued

charging him with one count of conspiracy to distribute cocaine and a magistrate judge

had issued a warrant for his arrest on that same charge. In short, Marquez’s Guidelines


   7
       U.S.S.G. § 2D1.1.
   8
     See United States v. Onheiber, 173 F.3d 1254, 1256 (10th Cir. 1999) (§ 2X1.1 does
not apply to drug attempts or conspiracies governed by U.S.S.G. § 2D1.1).
   9
     We review a district court’s “broad discretion in imposing a sentence” for
“unreasonableness,” under an abuse of discretion standard of review. United States v.
Tomko, 562 F.3d 558, 564 (3d Cir. 2009) (citation and quotation marks omitted).
   10
        Id. at 568 (citation and quotation marks omitted).
   11
        Def. Br. at 16.
                                               5
sentence was completely reasonable given his involvement in the conspiracy and the

strong evidence that he intended, from the outset, to complete the deal. In consequence,

we conclude that the District Court did not abuse its discretion in imposing a bottom-of-

the-Guidelines-range sentence of 70 months’ imprisonment.

III. CONCLUSION

       For the reasons set forth above and otherwise persuasively stated by the District

Court, we will affirm the judgment of the District Court.




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