                                                                             FILED
                           NOT FOR PUBLICATION                               MAR 02 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 09-10474

              Plaintiff - Appellee,             D.C. No. 5:06-cr-00010-RMW-2

  v.
                                                MEMORANDUM*
HECTOR JAVIER MACIAS-
VALENCIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Northern District of California
                  Howard R. Lloyd, Magistrate Judge, Presiding

                          Submitted February 28, 2011**
                            San Francisco, California

Before: SCHROEDER, CANBY, and HAWKINS, Circuit Judges.

       Hector Javier Macias-Valencia (“Macias”) appeals his 132-month sentence for

conspiracy to possess with intent to distribute and attempted possession with intent

to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§§ 841(a)(1), 841(b)(1)(A)(viii) and 846. We affirm under the deferential clear error

standard. See United States v. Asagba, 77 F.3d 324, 325-26 (9th Cir. 1996).

      A district court’s method of approximating the relevant quantity of drugs under

the Sentencing Guidelines is reviewed de novo. United States v. Chase, 499 F.3d

1061, 1068 (9th Cir. 2007). The determination of the quantity of drugs involved in

an offense is a factual finding reviewed for clear error. United States v. Dallman, 533

F.3d 755, 760 (9th Cir. 2009) (as amended); Asagba, 77 F.3d at 325. In a reverse-

sting where no actual drugs are seized, the agreed-upon quantity serves as the

approximated quantity for determining the offense level, excluding any amount a

defendant like Macias is able to establish by a preponderance of the evidence that he

“did not intend to . . . purchase, or was not reasonably capable of . . . purchasing.” See

U.S.S.G. § 2D1.1, Application Note 12 (1995).

      We remanded Macias’s first sentencing appeal so that the district court could

determine whether this exclusion applied here, noting in particular that: (1) DEA

Agent Alvarez, an experienced agent handling the transaction, believed the defendants

only intended to purchase one-half pound at that time; and (2) Macias and his brother

had only $4,689 with them, which could buy only slightly more than one-half pound

of methamphetamine at “market” prices, according to Agent Alvarez.




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      The district court considered this evidence but ultimately was persuaded by an

audio recording of Macias’s conduct at the buy-bust that Macias had the intent to

consummate the transaction for one pound “either by subterfuge or by . . . getting an

advance,” and that there was no evidence showing Macias was incapable of executing

his intent given his experience and sophistication participating in drug deals. Under

our deferential standard of review, we cannot say this was clear error.

      The sentence is also substantively reasonable, as Macias’s 132-month sentence,

which the district court reduced from 151 months to account for Macias’s

rehabilitation efforts, already falls within the Guidelines range for an offense

involving only one-half pound of methamphetamine.1 See United States v. Grissom,

525 F.3d 691, 696 (9th Cir. 2008).

      AFFIRMED.




      1
             One pound equals approximately 454 grams. A half-pound of
methamphetamine mixture with a 60 percent purity level equals approximately 136
grams of actual methamphetamine, which would yield a sentencing range of 121 to
151 months, based on Macias’s criminal history, in contrast to the 151 to 188 month
range calculated by the district court.

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