UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5846

CARLOS ORTEGA VENEGAS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-94-435-JFM)

Submitted: October 31, 1996

Decided: November 26, 1996

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Howard L. Cardin, Mark L. Gitomer, CARDIN & GITOMER, P.A.,
Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United
States Attorney, Christine Manuelian, Assistant United States Attor-
ney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Carlos Ortega Venegas appeals the 60-month mandatory minimum
sentence he received after he pled guilty to conspiracy to distribute
and possess marijuana with intent to distribute, 21 U.S.C.A. § 846
(West Supp. 1996). He contends that the district court erred in failing
to make a specific factual finding as to the amount of marijuana
attributable to him for sentencing purposes. USSG§ 2D1.1.* We find
no error and affirm the sentence.

Venegas was arrested in November 1994. A number of his co-
conspirators were also charged and entered guilty pleas. Venegas'
plea agreement contained a stipulated statement of facts, and
acknowledged that he would be subject to a mandatory five-year sen-
tence if the district court found that he was responsible for 100 kilo-
grams (220 pounds) of marijuana. The probation officer made no
recommended findings in the presentence report, leaving the determi-
nation of the guideline range entirely to the district court. Briefly
summarized, the pertinent evidence presented at the four-day sentenc-
ing hearing was as follows.

In April 1992, Venegas was stopped by Maryland State Police at
the airport in Baltimore where he was about to board a flight for Los
Angeles carrying $30,000 in cash. He said the money was to help a
relative in Mexico start a go-cart business there through a company
called Pits Performance. The Drug Enforcement Agency (DEA) was
unable to verify his story with the company.

In September 1993, Anthony Pistorio, a confidential informant for
the Baltimore County Police, was introduced to Venegas by a friend
who said Venegas was his Mexican marijuana supplier and capable
of supplying large amounts. At this meeting, Venegas said he could
supply any amount of marijuana and would not sell less than 50
pounds at a time. The DEA was brought in at this point. Pistorio did
not meet with Venegas again until July 29, 1994, when Venegas told
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

                    2
Pistorio he had 50 pounds of marijuana on hand which he would sell
for $30,000. On August 13, Venegas provided a one-pound sample to
Pistorio.

Between August 12 and September 29, 1994, Venegas' cellular
phone was tapped by the DEA. Intercepted conversations revealed
that a new shipment of 50 or 60 pounds of supposedly better-quality
marijuana arrived in Baltimore about August 16. Pistorio received 24
pounds from Venegas on August 18 for which he paid $30,000. On
August 24, Pistorio met Venegas again to pay him $2500 still owed
for the 25 pounds he had received, and Venegas urged Pistorio to buy
at least 100 pounds in the future so as to get a better price.

On September 12, 1994, Joni Hesselrode made the last of many
marijuana deliveries to Baltimore. She brought 50 pounds of mari-
juana in two suitcases on a flight from Los Angeles. Working mainly
with Libertad Valencia in California and Oscar Palomera in Balti-
more, Hesselrode had little contact with Venegas. However, on this
trip, she was instructed to contact him. She went to a hotel and called
Venegas. The hotel was placed under surveillance by drug task force
agents. Moises Palomera then came to the hotel and loaded the mari-
juana into his stationwagon. Venegas was parked just ahead of the
stationwagon and they left together. The marijuana later was seized
from the stationwagon under a search warrant.

Finally, the government attempted to prove that Venegas sold 259
pounds of marijuana to Anthony Phillips, who was the subject of a
separate investigation. While Venegas' phone was under a wiretap in
August 1994, Phillips used Venegas' phone for a conversation with
one of his marijuana customers. Right afterward, while waiting for an
answer to another call, Phillips was recorded saying, "Tell him I'm
going to take five to ten pounds of it right off the bat just to see what
it's like. If it's good, I'll take thirty or forty of them." A short time
later, Venegas called Oscar Palomera to ask whether he had any mari-
juana available. Transcripts were also introduced from Phillips' sen-
tencing hearing, at which several of his customers testified. One
identified a photograph of Moises Palomera as someone he had seen
with Phillips a number of times. Another identified a photograph of
Venegas as someone he had seen at Phillips' house.

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The district court found that Venegas was responsible for more
than 100 kilograms (220 pounds) of marijuana, but that a specific
number of pounds could not be determined because it was uncertain
whether Venegas was the sole supplier to Phillips. The court's finding
gave Venegas an offense level of 26. USSG § 2D1.1. The court then
gave Venegas a two-level adjustment for acceptance of responsibility,
USSG § 3E1.1, making his offense level 24. Because he was in crimi-
nal history category I, his guideline range was 51-63 months. How-
ever, because his offense involved more than 100 kilograms, Venegas
was subject to a mandatory minimum sentence of 60 months. 21
U.S.C.A. § 841(b)(1)(B)(vii).

The district court first found that 150 pounds were reasonably fore-
seeable to Venegas: the two 50-pound shipments from which samples
were distributed to Pistorio and the 50-pound shipment received from
Hesselrode. The court found that the $30,000 in cash Venegas carried
in 1992 was evidence of another 50 pounds of marijuana. The court
also found that there was proof that Venegas distributed some amount
of marijuana to Phillips. Without making a specific finding as to how
much marijuana Venegas sold to Phillips, the court concluded that
Venegas had distributed at least 220 pounds or 100 kilograms, but not
more than 400 kilograms. The court thus made an implicit finding that
Venegas distributed at least 20 pounds to Phillips.

On appeal, Venegas argues that the district court clearly erred in
not determining the exact amount of marijuana for which Venegas
was responsible. Venegas contends that the district court was required
to determine the specific number of kilograms for which Venegas was
responsible pursuant to three prior decisions of this court: United
States v. Irvin, 2 F.3d 72, 77-78 (4th Cir. 1993), cert. denied, 510 U.S.
1125 (1994); United States v. Gilliam, 987 F.2d 1009, 1012-13 (4th
Cir. 1993); and United States v. Engleman, 916 F.2d 182 (4th Cir.
1990).

None of these precedents are helpful to Venegas. The district court
did not interpolate between offense levels, as in Engleman, but deter-
mined that Venegas was responsible for between 100 and 400 kilo-
grams (offense level 26). The court may approximate the quantity of
drugs when the amount seized does not reflect the scale of the
offense. USSG § 2D1.1, comment. (n.12). The district court made an

                    4
independent factual finding after allowing both parties to present evi-
dence. The court rejected certain amounts because there was insuffi-
cient proof of a connection to Venegas. The court attributed to
Venegas only those amounts which it found were within his agree-
ment and reasonably foreseeable to him. See Gilliam, 987 F.2d at
1012-13. The court determined the amount of drugs reasonably fore-
seeable to Venegas before deciding whether the mandatory minimum
applied to him. Irvin, 2 F.2d at 73.

Venegas also argues that his case is like United States v. Estrada,
42 F.3d 228 (4th Cir. 1994), in which the district court relied on a
stipulation concerning the drug amount which was based on the par-
ties' misconception that a mandatory minimum sentence is triggered
by the drug amount which comprises the defendant's total relevant
conduct rather than the amount involved in the offense of conviction.
In this case, however, the mandatory minimum sentence was imposed
based on the court's finding that more than 100 kilograms of mari-
juana was reasonably foreseeable to Venegas during his participation
in the conspiracy to which he pled guilty.

Accordingly, the sentence is affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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