                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-4032
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

VICTOR VEGA-MONTANO,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
        No. 01 CR 836—Charles P. Kocoras, Chief Judge.
                          ____________
    ARGUED AUGUST 5, 2003—DECIDED AUGUST 22, 2003
                     ____________


  Before EASTERBROOK, ROVNER, and DIANE P. WOOD,
Circuit Judges.
  PER CURIAM. Victor Vega-Montano pleaded guilty to one
count of conspiracy to distribute in excess of 500 grams of
mixtures containing cocaine. At sentencing, Montano con-
tested the district court’s inclusion of three kilograms of co-
caine as relevant conduct, arguing that a three-kilogram
sale was not reasonably foreseeable to him as part of the
conspiracy. In addition, Montano argued that he should be
granted a “safety valve” reduction in his offense level
because his criminal history category overstated the seri-
ousness of his prior criminal offenses. The district court
denied both objections, but granted a two-level reduction in
Montano’s offense level based on his minor role in the con-
spiracy and sentenced him to the statutory minimum 60
2                                                No. 02-4032

months’ imprisonment. On appeal, Montano raises the same
objections he brought before the district court, and we
affirm.


                       Background
  On June 27, 2002, Montano pleaded guilty to one count of
conspiracy to distribute in excess of 500 grams of mixtures
containing cocaine, a charge that arose from his participa-
tion in several conversations leading up to the conspirators’
anticipated sale of up to 50 kilograms of cocaine to an un-
dercover task officer. The conspirators’ negotiations began
on September 8, 2001, when Montano and his co-defendant,
Carmelo Lopez, met with an undercover officer to negoti-
ate the sale of 60 kilograms of low quality cocaine. At that
meeting, Montano told the officer that he could procure an
additional 200 kilograms of cocaine, to be delivered in incre-
ments of 20 kilograms. Montano also stated that he could
provide 50 kilograms of high quality cocaine, as the officer
had requested. Two days after the meeting, Montano,
Lopez, and another co-defendant named Carmarino Chavez
met with the officer to deliver the initial 50 kilograms of co-
caine. The officer provided a car to transport the drugs, but
the transaction was not completed because the conspirators
demanded that the officer pay for the cocaine at the time of
delivery, which he could not do.
  On October 1, 2001, Lopez arranged another meeting for
the next day to discuss with the officer the sale of 50 kilo-
grams of cocaine. At this meeting, Montano, Lopez, and
Chavez told the officer that they would not deliver the
cocaine until their supplier was given some of the money for
the purchase. In response, the officer stated that he would
provide an advance payment for three kilograms of cocaine
once he had seen one kilogram of the cocaine. Later that
day, Chavez contacted another co-defendant, Nancy Perez,
who brought one kilogram of cocaine to a Chicago restau-
No. 02-4032                                                 3

rant for the officer’s inspection in the presence of Lopez and
Montano. Once the officer had inspected the cocaine, he told
Perez that he would pay for the initial package of three
kilograms of cocaine. Later that day, Montano and the other
defendants were arrested by federal agents.
  After initially pleading not guilty to the indictment,
Montano withdrew his plea and entered into a written plea
agreement. In the agreement, the government concluded
that the anticipated three-kilogram sale of cocaine to the
undercover officer resulted in a base offense level of 28.
Montano, however, argued that he should be accountable
for only the one kilogram that had actually been delivered,
and calculated his base offense level at 26. Both Montano
and the government agreed that he should receive a two-
level adjustment for his minor participation in the offense
and a three-level adjustment for acceptance of responsibil-
ity.
  After Montano entered his guilty plea, a probation officer
prepared a presentence investigation report (PSR). The PSR
calculated Montano’s base offense level at 28, taking into
account three kilograms of cocaine as the relevant drug
quantity. The probation officer also accepted the parties’
recommendations for a two-level reduction for Montano’s
minor role in the offense and a three-level reduction for ac-
ceptance of responsibility, resulting in a total offense level
of 23. In determining Montano’s criminal history category,
the probation officer took into account a state court convic-
tion for driving under the influence in 1997, for which
Montano did not begin serving his term of supervision until
2001. The probation officer assessed one criminal history
point for the offense, and two additional criminal history
points because the conviction on appeal occurred while
Montano was under supervision for his state court convic-
tion. Accordingly, the probation officer determined that
Montano’s criminal history category was II.
4                                                No. 02-4032

   At sentencing, Montano made two objections to the PSR;
he argued first that the drug quantity calculation was over-
stated because it included sales of drugs that were not rea-
sonably foreseeable to him, and second, that the district
court erred by failing to grant a “safety valve reduction” and
depart from the statutory minimum sentence under
18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, because his crim-
inal history was overstated. The district court denied both
of Montano’s objections. Judge Kocoras held Montano
responsible for three kilograms of cocaine because the de-
livery of one kilogram made the deal sufficiently advanced
to be foreseeable to all of the conspiracy’s participants.
Moreover, Judge Kocoras found that Montano’s criminal
history category “accurately reflects his circumstances,” and
that Montano’s three criminal history points rendered him
ineligible for a “safety valve” departure, which requires that
the defendant have no more than one criminal history
point. Having accepted the PSR’s recommendations, the
district court determined Montano’s sentencing guideline
range to be 51 to 63 months. The district court then sen-
tenced Montano to the statutory minimum sentence of 60
months’ imprisonment and four years of supervised release.


                        Discussion
  On appeal, Montano raises the same two arguments that
he brought unsuccessfully before the district court at sen-
tencing. First, he contends that the district court erred by
holding him accountable for the uncompleted sale of three
kilograms of cocaine, rather than the one kilogram that was
actually delivered to the undercover officer. Second,
Montano argues that the district court improperly failed to
grant him a safety valve departure because his criminal his-
tory category overstated the seriousness of his prior of-
fenses, taking into account the fact that his instant con-
viction occurred while he was on supervision for a prior
state court sentence. Neither of these arguments has merit.
No. 02-4032                                                 5

  1. Drug Quantity Calculation
  Montano contends that the district court erred by attrib-
uting to him three kilograms of cocaine from the uncom-
pleted transaction with the undercover officer, because—
given his lack of prior drug dealing and his limited relation-
ship with his conspirators—the completion of the deal was
not reasonably foreseeable to him. We review a district
court’s findings of fact concerning the quantity of drugs
for clear error. United States v. Smith, 308 F.3d 726, 745
(7th Cir. 2002). For purposes of sentencing, each participant
in a drug conspiracy is responsible for all drug transactions
reasonably foreseeable to him. United States v. Thompson,
286 F.3d 950, 971 (7th Cir. 2002). A co-conspirator may be
held liable for reasonably foreseeable but unfinished drug
transactions, unless he can prove that he “did not intend to
provide, or was not reasonably capable of providing” the
drugs. United States v. Corral, 324 F.3d 866, 871 (7th Cir.
2003) (quoting U.S.S.G. § 2D1.1, cmt. n.12 (2002)). Further,
all conduct by any co-conspirator in furtherance of, and
reasonably foreseeable in connection with, the conspiracy is
attributable to the defendant as relevant conduct at
sentencing. See U.S.S.G. § 1B1.3(a)(1)(B); United States v.
Brumfield, 301 F.3d 724, 733 (7th Cir. 2002).
  Montano’s lengthy and significant participation in the
conspiracy undermines his attempts to minimize his in-
volvement in the conspiracy and argue that he could not
have reasonably foreseen the three-kilogram transaction.
First, as early as September 8, 2001, Montano and the other
conspirators participated in a conversation with the un-
dercover officer concerning an anticipated sale of 50 kilo-
grams of cocaine. At that time, Montano stated that he
would be able to acquire up to 200 kilograms of cocaine, and
he drove from the meeting to a supplier in an attempt to
pick up several kilograms of cocaine for delivery to the offi-
cer. Second, even though that initial transaction was never
completed, Montano was present one month later at all
6                                               No. 02-4032

meetings where the conspirators and the undercover officer
negotiated the three-kilogram deal that was the subject of
his conviction. At those meetings, the undercover officer
and the conspirators decided that the delivery of one
kilogram of cocaine was intended as a showing of good faith
toward the completion of the three-kilogram transaction.
Moreover, Montano has offered no argument, as required
by § 2D1.1, that the discussion of three kilograms was idle
talk, or that the conspirators could not acquire three
kilograms of cocaine for delivery to the officer. See Corral,
324 F.3d at 871. Accordingly, the district court’s conclusion
that Montano could reasonably foresee the three-kilogram
cocaine transaction was not clearly erroneous.


    2. “Safety Valve” Departure
   Montano contends that the district court improperly de-
nied a “safety valve” departure based upon an overstated
criminal history. He argues that the district court errone-
ously assessed two criminal history points when it took into
account the fact that the offense on appeal occurred while
he was on supervision for a prior state court conviction for
driving under the influence. Specifically, Montano asserts
that the attorney who represented him on the prior state
court charge sought numerous continuances and failed to
provide him with an opportunity to plead guilty in a timely
fashion. As a result, Montano’s conviction for the instant
drug offenses occurred while he was on supervision for his
previous driving under the influence conviction. The district
court, while acknowledging that the four-year delay in
accepting his guilty plea was questionable, concluded that
it did not have the authority to re-examine the state court
proceedings and determine who was at fault for the delay.
The district court noted that “[I] do not think I have any
discretion to revisit the state hearing and find some con-
demnation for the failure . . . of the state to move more
promptly especially if he tested that high [for blood alcohol
No. 02-4032                                                  7

content]. I mean they probably should have,” but that
Montano’s “criminal history category is what it is and . . .
accurately reflects his circumstance.”
   A district court may impose a sentence below the statu-
tory minimum for certain drug offenses if the defendant
meets several criteria, see 18 U.S.C. § 3553(f); U.S.S.G.
§ 5C1.2, including that he not have more than one criminal
history point. As long as the district court properly under-
stood the scope of its discretion to grant such a departure,
a question that we review de novo, United States v. Phillips,
239 F.3d 829, 848 (7th Cir. 2001), its decision not to depart
is not reviewable, United States v. Schuh, 289 F.3d 968, 974
(7th Cir. 2001).
   Here, the district court properly understood that it did
not have authority to sentence Montano below the statutory
minimum because he was not eligible for the “safety valve”
departure due to his three criminal history points. The dis-
trict court could apply the safety valve only if it adjusted
Montano’s criminal history points, but it had no authority
to revisit the state court proceeding. But district courts can-
not change the calculations that form the basis of a sentenc-
ing range in order to evade the statutory minimum sen-
tences. Many other courts of appeal have agreed that dis-
trict courts lack discretion to alter a defendant’s criminal
history points so as to render him eligible for a “safety
valve” departure. See, e.g., United States v. Boddie, 318 F.3d
491, 495 (3d Cir. 2003); United States v. Penn, 282 F.3d 879,
882 (6th Cir. 2002); United States v. Webb, 218 F.3d 877,
881 (8th Cir. 2000); United States v. Owensby, 188 F.3d
1244, 1247 (10th Cir. 1999); United States v. Valencia-
Andrade, 72 F.3d 770, 774 (9th Cir. 1995). Accordingly, the
district court correctly concluded that it had no discretion
to re-examine the validity of Montano’s prior criminal con-
viction and permit a downward departure.
                                                   AFFIRMED.
8                                         No. 02-4032

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—8-22-03
