                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            AUG 3 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 98-2184
           v.                                           (D. New Mexico)
 EULALIO BENAVIDES,                                 (D.C. No. CR-96-419-JC)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




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

unanimously that oral argument would not materially assist 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.

       Eulalio Benavides pled guilty to (1) conspiring to possess, with intent to

distribute, cocaine; and (2) distributing cocaine. At his plea hearing, however,


       This order and judgment is not binding precedent, except under the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.
Benavides reserved the right to contest, at sentencing, any responsibility for

trafficking more than 98.5 grams of cocaine. Following his guilty plea, the

district court held a sentencing hearing to determine the amount of cocaine

Benavides and his co-conspirators had possessed and/or distributed. At that

hearing, the district court determined that Benavides was responsible for

trafficking at least 500 grams of cocaine. Based on this determination, the

district court sentenced Benavides to 120 months’ imprisonment—the statutory

minimum—on each count, with the sentences to run concurrently. Benavides

now appeals from the imposition of this sentence, arguing that the district court

erred in determining that Benavides was responsible for trafficking at least 500

grams of cocaine. For the reasons discussed below, we affirm the judgment and

sentence of the district court.



                                  BACKGROUND

      On November 7, 1996, a federal grand jury returned a ten-count indictment

against Eulalio Benavides (“Benavides”) and his alleged co-conspirators—his

uncle Rudolfo Benavides (“Rudolfo”), Christopher Rawls, and Jamie Michelle

Ireland. Benavides was mentioned in two of the ten counts. Count I charged all

four alleged conspirators with conspiring to possess, with intent to distribute,

more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),


                                         -2-
(b)(1)(B), and 846. Count IV charged Benavides and his uncle with distributing

less than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).

On that same day, a warrant was issued for Benavides’ arrest.

      Approximately a year later, in November 1997, Benavides was arrested and

arraigned before a United States magistrate judge, where he entered an initial

plea of not guilty. On February 6, 1998, the government filed an enhancement

information, pursuant to 21 U.S.C. § 851, informing the court that Benavides had

a prior state felony conviction for trafficking in cocaine. This prior conviction

would have the effect of increasing Benavides’ sentences, if Benavides were to

be convicted of the pending charges against him. For instance, the charge in

Count IV—distributing less than 500 grams of cocaine—carries no minimum

sentence and a maximum of 20 years’ imprisonment, but for offenders with a

prior felony drug conviction, the sentence is increased to a prison term of “not

more than 30 years.” 21 U.S.C. § 841(b)(1)(C). And the charge in Count

I—conspiracy to possess, with intent to distribute, more than 500 grams of

cocaine—increases, with a prior felony drug conviction, from “not less than 5

years and not more than 40 years” to “not . . . less than 10 years and not more

than life imprisonment.” 21 U.S.C. § 841(b)(1)(B). By introducing the prior

felony drug conviction, the government hoped to take advantage of the 10-year

statutory minimum sentence prescribed in 21 U.S.C. § 841(b)(1)(B).


                                         -3-
      To do so, however, the government would have to show that Benavides

was responsible for the possession and/or distribution of more than 500 grams of

cocaine. See 21 U.S.C. § 841(b)(1)(B). From the outset, Benavides has denied

responsibility for more than five ounces—approximately 125 grams—of cocaine.        1




On February 9, 1998, Benavides agreed to plead guilty, without a written plea

agreement or any concessions from the government, to Count IV in its entirety,

and to all of Count I except the drug quantity. That is, Benavides pled guilty to

(1) distributing less than 500 grams of cocaine, and (2) conspiring with Rudolfo,

Rawls, and Ireland, to possess, with intent to distribute, a disputed amount of

cocaine. At his plea hearing, Benavides expressly reserved the right to contest, at




      1
        One ounce is equal to 28.35 grams.  See USSG § 2D1.1, comment. (n.10)
(measurement conversion table). However, throughout this case, the parties have
referred to one ounce as equal to 25 grams.  See III R. at 14 (defense counsel
referring to 25 grams as “a Mexican ounce,” and the prosecutor agreeing to use 25
grams as “the conservative number”).

       At his plea hearing and in his initial objections to the presentence report,
Benavides insisted that he was responsible for only four ounces—approximately
98.5 grams—of cocaine. See II Supp. R. at 153; II R. at 47. However, on appeal,
Benavides concedes that he is responsible for selling “one ounce of cocaine on
June 11, 1996, and four ounces on June 13, 1996 for a total of 125 grams.”
Appellant’s Br. at 7.

                                        -4-
the sentencing hearing, the amount of drugs for which he was responsible.    2
                                                                                 The

district court accepted Benavides’ plea, and scheduled a sentencing hearing.

      At the sentencing hearing, the government presented two witnesses:

Special Agent Dennis Kintigh of the Federal Bureau of Investigation (FBI); and

Jamie Michelle Ireland, one of Benavides’ co-conspirators, who had entered into

a plea agreement with the government. Kintigh confirmed that Benavides was

involved in selling five ounces of cocaine to undercover agents on June 11 and

13, 1996. Kintigh also stated, however, that at the June 13th cocaine transaction

and during a telephone call the next day, Benavides and the undercover agent

discussed another deal for 500 grams of cocaine, to be consummated on June

14th. At a meeting on June 14th, Benavides stated that “he had the

merchandise,” and invited the undercover agent to get into his car to finish the

deal. III R. at 16. The agent, fearing for his safety, refused to get into

Benavides’ car, and the deal fell through.

      In addition, Kintigh stated that in late June 1996, Benavides was arrested

on domestic disturbance charges, and, while incarcerated, he told local


      2
         We have approved of similar plea agreements.    See United States v.
Silvers , 84 F.3d 1317, 1320 (10th Cir. 1996). We have stated that because drug
quantity is not a substantive element of a drug offense, “a defendant is not
entitled to have the issue decided by a jury,” and “the government is required only
to prove the quantity of drugs attributable to the defendant by a preponderance of
the evidence at sentencing,” rather than beyond a reasonable doubt, “in order to
trigger the mandatory minimum sentences prescribed in 21 U.S.C. § 841(b).”     Id.

                                          -5-
authorities that he and his uncle, together, “dealt on average . . . 250 grams [of

cocaine] per week.” III R. at 20. These approximate amounts were confirmed by

Rudolfo, who, after his arrest, told the FBI that he and Benavides had “provided

[one specific customer] Mark Sanders [with] an estimated two kilograms of

cocaine during their business together.” III. R. at 21.

      Kintigh also testified that the other participants in the conspiracy had been

apprehended with narcotics in their possession. In March 1996, Rawls was

stopped at a Border Patrol checkpoint, and officers discovered 225 grams of

cocaine in his possession. Rudolfo later told authorities that this particular

shipment of cocaine “was intended for [Benavides] in Hobbs, New Mexico.” III

R. at 22. And in late June and July 1996, Rudolfo, Ireland, or both were

discovered on several occasions in the possession of drugs. On June 26th,

Rudolfo sold 112 grams of cocaine to an undercover agent; on June 28th,

Rudolfo and Ireland sold 84 grams of cocaine to an agent; and on July 30th,

Rudolfo sold 42 grams of cocaine and 168 grams of heroin to an agent.

Benavides was not personally involved in the March, late June, or July

transactions.

      The government’s next witness was Ireland, who stated that she had begun

her association with Rudolfo as a maid and a chauffeur, but was soon asked to

function as a sort of bookkeeper for the conspirators. She stated that she kept


                                          -6-
careful records of how much cocaine was bought, used, and sold by the group,

including Benavides. She stated that when she started working with Rudolfo in

March 1996, Benavides was already part of the group. She described Benavides

as Rudolfo’s “middle man” and his “connection to most of the [customers] in

Hobbs[, New Mexico].” III R. at 39. When Rudolfo would travel to Hobbs to

sell drugs, Benavides would either place the customers, some of whom he had

recruited, in contact with Rudolfo, or he would take some of Rudolfo’s cocaine

and sell it directly to the customers himself. She stated that a “conservative

estimate” of the amount of drugs Rudolfo brought to Hobbs for distribution was

“about three ounces [or 75 grams] a week” over a twelve-week period. III R. at

45.

      Benavides did not call any witnesses of his own at the sentencing hearing,

but his attorney did cross-examine both Kintigh and Ireland, attempting to

impugn the credibility of those witnesses. At the conclusion of the evidence, the

district court “conclude[d] that the evidence has established that [Benavides] was

involved in a conspiracy that resulted in the distribution of at least 500 grams of

cocaine and that there’s substantial evidence to establish that that is the amount.”

III R. at 61. Therefore, based on this finding, the district court was required to

apply the statutory minimum sentence prescribed by 21 U.S.C. § 841(b)(1)(B).




                                         -7-
      The district court found that Benavides’ total offense level was 28 under

the Sentencing Guidelines, and that his criminal history category was IV.   3
                                                                                Under

these circumstances, the applicable guideline range is 110-137 months, but the

statutory minimum sentence, from 21 U.S.C. § 841(b)(1)(B), alters the allowable

range to 120-137 months. The district court sentenced Benavides to 120 months’

imprisonment on each count, and to five years’ supervised release on Count I and

three years’ supervised release on Count IV, with the sentences to run

concurrently.




      3
         In his appellate brief, Benavides appears to challenge the computation of
his criminal history. However, as Benavides points out in his brief, because he
did not raise this issue before the district court, we would review it only for plain
error. See United States v. Alessandroni , 982 F.2d 419, 420 (10th Cir. 1992).
And, factual questions regarding sentencing which are not raised below, such as
whether the district court counted the same offense twice in calculating criminal
history, are not appropriate for plain error review, because “we have no factual
record by which to review the application of the guidelines.”      United States v.
Saucedo , 950 F.2d 1508, 1518 (10th Cir. 1991). Thus, we have held that a
defendant’s failure to raise a factual sentencing issue below constitutes waiver of
that issue for the purposes of direct appeal.    See United States v. Deninno , 29
F.3d 572, 580 (10th Cir. 1994); Saucedo , 950 F.2d at 1518.

       In any event, the issue is mooted by our resolution of Benavides’ challenge
to the drug quantity. If he was involved in trafficking more than 500 grams of
cocaine, and if he has a prior felony drug conviction, he must serve a minimum of
10 years in prison, see 21 U.S.C. § 841(b)(1)(B), regardless of whether the
remainder of his criminal history points were correctly tallied.

                                           -8-
       Benavides now appeals from the imposition of this sentence, arguing that

the district court erroneously concluded that he was responsible for the

possession and/or distribution of more than 500 grams of cocaine.



                                      DISCUSSION

       In a case such as this one, where the total amount of drugs the defendant is

charged with distributing or possessing was not seized by the government, the

sentencing court must estimate the amount of drugs involved. This estimate may

be “based on a variety of circumstances, so long as they have ‘some basis of

support in the facts of the particular case’” and “possess a ‘minimum indicia of

trustworthiness.’”      United States v. Nieto , 60 F.3d 1464, 1469 (10th Cir. 1995)

(quoting United States v. Garcia , 994 F.2d 1499, 1508 (10th Cir. 1993)). This

estimate is a finding of fact, which, as Benavides correctly points out, we review

only for clear error.    See United States v. Garcia , 78 F.3d 1457, 1462 (10th Cir.

1996) (stating that “[w]e review the factual findings of a district court relating to

sentencing issues for clear error”)   . A factual finding is not clearly erroneous

“unless the court’s finding was without factual support in the record, or if after

reviewing all the evidence we are left with the definite and firm conviction that a

mistake has been made.”       United States v. Smith , 133 F.3d 737, 744 (10th Cir.

1997) (citation and quotation marks omitted).


                                            -9-
      In this case, the district court’s factual finding that Benavides, or the

conspiracy between Benavides, Rudolfo, Rawls, and Ireland during the months

Benavides was a part of the conspiracy, was responsible for the possession and/or

distribution of more than 500 grams of cocaine was not clearly erroneous. This

finding was amply supported by evidence presented at the sentencing hearing,

and, in the end, we are not left with the impression that a mistake has been made

here. For instance, the following evidence was relied on by the district court in

making its finding that more than 500 grams of cocaine were involved: (1)

Benavides’ admission that he was involved in the sale of 125 grams of cocaine;

(2) Kintigh’s testimony that Benavides entered into a deal with an undercover

agent for the sale of 500 grams of cocaine, although the deal fell through at the

last minute; (3) Kintigh’s testimony that Benavides told local drug officers that

he and Rudolfo distributed approximately 250 grams of cocaine per week; (4)

Kintigh’s testimony that Rudolfo, in discussions with authorities following his

arrest, stated that one of their best customers in Hobbs, New Mexico, purchased

approximately 2,000 grams of cocaine from him and Benavides; (5) Ireland’s

testimony that Rudolfo and Benavides distributed, in Hobbs, approximately 75

grams per week over a twelve-week period, for a total of 900 grams; (6)

Kintigh’s testimony that other members of the conspiracy were caught with the

equivalent of over 1,000 grams of cocaine at various times, including Rawls’ 225


                                         -10-
grams which Rudolfo stated were expressly earmarked for Benavides to distribute

in Hobbs.

       Even if we were to discount one or even several of these episodes, there

would still be sufficient evidence for the district court to have concluded that

Benavides was involved in trafficking more than 500 grams of cocaine.

Benavides, however, argues that the evidence presented at the sentencing

hearing, especially Ireland’s testimony, was not reliable. In support of this

argument, he cites United States v. Richards , 27 F.3d 465 (10th Cir. 1994), a case

in which we held that a trial court’s drug quantity determination, based solely on

the testimony of one witness who offered contradictory testimony,        was clearly

erroneous and without support in the record. That case is easily distinguishable

from the case at hand. Here, the district court’s drug quantity determination was

supported by two witnesses, both of whom offered coherent and uncontradictory

testimony. This case differs from    Richards in that Ireland’s testimony was not

contradictory and was therefore stronger than the testimony discounted in

Richards , and in that here, even if we were to totally discount Ireland’s

testimony, there is still sufficient evidence, introduced through the testimony of

Agent Kintigh, to support the district court’s drug quantity determination.      See

Nieto , 60 F.3d at 1469-70 (holding that a district court’s drug quantity

determination, which was based solely only the uncorroborated but credible


                                           -11-
testimony of a single witness, was supported by the evidence and therefore not

clearly erroneous).

      In short, we think that there was sufficient evidence introduced at the

sentencing hearing to support the district court’s finding that Benavides was

involved in trafficking more than 500 grams of cocaine, and that this evidence

possesses at least minimal indicia of trustworthiness. Accordingly, we hold that

the district court’s finding was not clearly erroneous.

      The judgment and sentence of the district court are AFFIRMED.

                                                ENTERED FOR THE COURT



                                                Stephen H. Anderson
                                                Circuit Judge




                                         -12-
