                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JAN 26, 2009
                               No. 08-12856                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                       D. C. Docket No. 07-00021-CR-6

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

CARLOS LUNDY,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                              (January 26, 2009)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Carlos Lundy appeals his 100-month sentence for distribution of cocaine
base, in violation of 21 U.S.C. § 841(a)(1). On appeal, Lundy first argues that the

district court erred by including an uncompleted sale of cocaine to a confidential

informant (“CI”) in the calculation of his offense level, pursuant to U.S.

S ENTENCING G UIDELINES M ANUAL § 2D1.1. Lundy argues that he had neither the

intent to deliver the full two ounces that the CI wanted to buy nor the capability to

deliver that amount. Lundy further contends that, based on his subsequent

transactions with the CI, the court could only infer that the determinable amount

from the uncompleted transaction would have been less than half of the amount for

which the CI negotiated. Lundy notes that his offer to sell to the CI was contingent

on the CI taking the delivery within a reasonable amount of time, such that when

the CI arrived in Statesboro late, there was no longer a deal. Additionally, Lundy

contends that he had “no ability” in his own right to complete the transaction

because he was wholly dependant on his codefendant for his drug supply.

      We review the district court’s interpretation and application of the

Guidelines de novo and review the underlying factual findings for clear error.

United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007) (citation omitted), cert.

denied, 128 S. Ct. 1912 (2008). Where, as here, a drug trafficking offense

involves cocaine base (crack cocaine) and one or more controlled substances, the

different drugs are converted into their marihuana equivalency to determine which



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offense level in the Drug Quantity Table set forth in U.S. S ENTENCING

G UIDELINES M ANUAL § 2D1.1(c) applies. The offense level is then reduced by

2-levels. U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.1(a)(3), cmt. n.10(B),

(D)(i).

          The commentary to § 2D1.1 provides that quantities of drugs not specified in

the count of conviction may be considered in determining a defendant’s offense

level. U.S. S ENTENCING G UIDELINES M ANUAL § 2D1.1, cmt. n.12. Where “the

amount seized does not reflect the scale of the offense, the court shall approximate

the quantity of the controlled substance.” Id. “In making this determination, the

court may consider . . . similar transactions in controlled substances by the

defendant. . . .” Id. If an offense involved an “agreement” to sell a controlled

substance, “the agreed-upon quantity of the controlled substance shall be used to

determine the offense level . . . .” Id. “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” its quantity determination, the amount the defendant

establishes that he “did not intend to provide . . . or was not reasonably capable of

providing. . . .” Id.

          There was no indication from the record that Lundy, despite understanding



                                            3
that the CI wanted to buy two ounces of crack cocaine, ever told the CI that he

would be unable to provide the CI with the entire amount. Further, Lundy’s

undisputed statements to the CI– that he had the crack cocaine earlier before the CI

arrived and that he would be able to provide the amount later that day– suggest that

he still was capable of delivering the drugs to the CI. Accordingly, because Lundy

did not show that he lacked the intent or capability to deliver two ounces of crack

cocaine to the CI after they negotiated for that amount, the district court did not err

in considering the two ounces from the uncompleted sale in its base offense level

calculation.

      Next, Lundy argues that the sentencing court abused its discretion in not

departing downward from a criminal history category of III to a criminal history

category of II. The government responds that, because Lundy does not contend

that the district court believed it was without authority to downwardly depart

pursuant to U.S. S ENTENCING G UIDELINES M ANUAL § 4A1.3, we lack jurisdiction

to review his arguments on the matter.

      We review de novo questions regarding subject matter jurisdiction. United

States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.) (per curiam), cert. denied,

129S. Ct. 288 (2008). We lack jurisdiction to review a district court’s refusal to

grant a downward departure, unless the district court incorrectly believed that it



                                           4
lacked the statutory authority to depart from the Guidelines range. United States v.

Norris, 452 F.3d 1275, 1282 (11th Cir. 2006) (citation omitted). “[W]e assume the

sentencing court understood it had authority to depart downward” when nothing in

the record indicates otherwise. United States v. Chase, 174 F.3d 1193, 1195 (11th

Cir. 1999) (citations omitted). Because nothing in the record indicates that the

district court was ignorant of its authority to depart under § 4A1.3, we lack

jurisdiction to consider the district court’s decision not to depart downward from

Lundy’s criminal history category.

                                  CONCLUSION

      Upon review of the record and the parties’ briefs, we discern no reversible

error. Accordingly, we affirm.

      AFFIRMED.




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