
USCA1 Opinion

	




          August 25, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1275                                     UNITED STATES,                                      Appellee,                                          v.                         ORLANDO JESUS SUAZA, A/K/A EL PAISA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Eileen M. Donoghue on brief for appellant.            __________________            Donald K. Stern, United States Attorney, and Michael D.  Ricciuti,            _______________                              ____________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Defendant, who pled  guilty to, among                      __________            other things, conspiracy to possess with intent to distribute            heroin,  challenges  1000  grams  of  the  amount  of  heroin            attributed to him for sentencing purposes.  He says he lacked            both the intent  and the ability to deliver that amount.  The            district  court found to the  contrary.  We  review for clear            error.  United  States v. Morillo, 8 F.3d  864, 871 (1st Cir.                    _________________________            1993).                        The   presentence   report  (PSR)   indicates  that            beginning   in   April   1992,   defendant   discussed   with            confidential    informants    (CIs)   heroin    and   cocaine            transactions.   Talking in  code, defendant represented  that            his source had two kilograms  of heroin to sell and  quoted a            price  for  a  half  kilogram.   His  source,  co-conspirator            Zuluaga, confirmed to a CI that she had heroin at  her house.            On  Wednesday, April  15, 1992,  defendant, Zuluaga,  and co-            conspirator Hoyos met with the CIs and  the purported buyers,            two undercover  agents (UCs).  Defendant  exhibited 500 grams            of heroin.  Buyers said they wanted one kilogram a week.  The            UCs  purchased 125 grams  of heroin that  day as  a sample in            anticipation  of a future one kilogram sale.  Hoyos said that            if the  buyers liked  the  sample, then  "Friday or  Saturday            we'll sell a kilo."                        While  further  negotiations  occurred  later  that            month and the  next, defendant did  not participate in  them.                                         -2-            Indeed, he may  have been  excluded from the  conspiracy.   A            price was not agreed upon, and no kilogram sale actually took            place at that time.                      Where,   as  here,  a  negotiated  but  uncompleted            transaction is involved, U.S.S.G.    2D1.1, Application  Note            12,  sets  the rule:  "[T]he  weight under negotiation in  an            uncompleted  distribution  shall  be used  to  calculate  the            applicable amount" unless "the court finds that the defendant            did not intend to  produce and was not reasonably  capable of            producing  the  negotiated amount."    We  conclude that  the            district  court's  finding  that,   as  of  April  15,  1992,            defendant had the intention and ability to produce a kilogram            of heroin was supported by the PSR.                        It  is clear  from the  PSR that,  as of  April 15,            defendant and his co-conspirators  intended to supply the UCs            with at least a kilogram in the near future if  a price could            be agreed  upon.  The UCs said they wanted a kilogram a week,            defendant actively  participated in the sale of the sample in            anticipation  of   a  one  kilogram  transaction,  and  Hoyos            indicated  he was willing to proceed with a one kilogram sale            within a  few days.   Defendant points to  the fact that  the            price  for a  kilogram quantity was  not discussed  (they did            haggle  over the sample price, however) or agreed upon at the            April 15 meeting as somehow negating intent.  It did not.  An                                         -3-            intent  to  sell certainly  can exist  even though  the price            remains to be negotiated.                        As  for ability  to  supply a  kilogram of  heroin,            defendant  was a  member  of a  conspiracy which  supportably            could  be  found  to  have  access  to  kilogram  quantities.            Defendant had stated earlier that month that Zuluaga  had two            kilograms of heroin  to sell, and Hoyos said  he was ready to            complete the transaction  the following  Friday or  Saturday,            indicating  he  did  not  foresee  any  problem  supplying  a            kilogram  in short  order.   Crediting these  assertions, the            court  could  supportably find  that  defendant, through  his            association with  Zuluaga and  Hoyos, was  able to  produce a            kilogram within the very near future.  Defendant points to  a            statement that could be read as indicating that the group had            brought  "all" their heroin (500 grams) with them on April 15            and argues  that statement indicates they  lacked the ability            to produce any more, let alone another kilogram.  Defendant's            reading is not a necessary one, but even if it were, it would            not negate the  group's capacity  to acquire  enough for  the            contemplated transaction.                      Defendant also argues that he was excluded from the            conspiracy  immediately  after  the  April   15  meeting  and            therefore  lacked  the  capacity  thereafter  to   produce  a            kilogram of  heroin.  It may  be that once  Zuluaga and Hoyos            withdrew their  support,  defendant  lacked  the  ability  to                                         -4-            supply a kilogram of heroin.  But, on April 15,  1992 when he            was  actively negotiating to bring about a one kilogram sale,            defendant supportably could  be found to have  had the intent            and ability (through his  association with Zuluaga and Hoyos)            to  procure a  kilogram of  heroin.   If he  was subsequently            expelled  from   the  conspiracy,  that  expulsion   did  not            retroactively absolve him of responsibility for the April 15,            1992 one kilogram negotiations.                      The judgment is summarily affirmed.  Loc. R. 27.1.                                                ________                                         -5-
