                                                                                         FILED
                               NOT FOR PUBLICATION                                         JUL 28 2011

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


                                FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                              No. 09-50624

               Plaintiff - Appellee,                    D.C. No. 2:09-cr-00116-RGK-1

   v.
                                                        MEMORANDUM*
 VICTOR MANUEL PALMA:
 aka: Raul Lopez-Villanueva,
 aka: Moreno,

               Defendant - Appellant.


                      Appeal from the United States District Court
                         for the Central District of California
                      R. Gary Klausner, District Judge, Presiding

                            Argued and Submitted June 9, 2011
                                  Pasadena, California

Before: B. FLETCHER, and N.R. SMITH, Circuit Judges, and R. BREWSTER,
District Judge.**


        Victor Manuel Palma, a federal prisoner who entered a guilty plea (without a

plea agreement) to five counts of narcotics charges, appeals two aspects of his 87-




          *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
         **
               The Honorable Rudi M. Brewster, Senior United States District Judge for the
Southern District of California, sitting by designation.
month sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in

part and reverse in part.

      Palma first challenges the calculation of the quantity of narcotics used to

determine that his base offense level was 34 under the sentencing guidelines.

      We agree that only two of the three ounces of methamphetamine delivered on

August 13, 2008 should have been included in the calculation. The objective

evidence (namely, payment for the negotiated amount of two ounces) corroborated

Palma’s intent to deliver only two ounces. USSG § 2D1.1, comment. (n12) (2008).

Under Application Note 12, “the agreed-upon quantity of the controlled substance

shall be used to determine the offense level unless the sale is completed and the

amount delivered more accurately reflects the scale of the offense.” Id. (emphasis

added). Here, the parties agreed to two ounces, Palma intended to deliver two

ounces, the confidential informant agreed to deliver a certain number of cases of

counterfeit cigarettes in exchange for two ounces, and the agent marked the

evidence bag as containing two ounces. Neither Palma nor the government

informant knew that the package delivered by the supplier weighed three ounces.

These unique and uncontradicted facts establish that Palma’s sentence should be

calculated by using the agreed-upon amount of two ounces.

      Any error in counting the extra ounce was counter-balanced by a separate

error – one that benefitted Palma. The presentence report erroneously omitted from

its calculation the one ounce of methamphetamine that Palma delivered on October

                                         -2-
2, 2008. The October transaction is described in the factual section of the

presentence report but that amount (slightly less than one ounce) was not included

in the calculation section. The government brought this error to the attention of the

district court and argued that, even if the court sustained Palma’s objection to the

August transaction, it would not change the base level.1 United States v. Sanchez,

908 F.2d 1443, 1447 (9th Cir. 1990). If we were to remand with instructions to

deduct one ounce from the August transaction, the district court would be permitted

to correct the other error by adding the ounce involved in the October transaction.

United States v. Garcia-Guizar, 234 F.3d 483, 489-91 (9th Cir. 2000).

      Therefore, we agree with the district court’s ultimate conclusion that the

errors in calculating the quantity of methamphetamine would not change Palma’s

base offense level or his sentence. United States v. Crawford, 185 F.3d 1024, 1029

(9th Cir. 1999).

      Palma also challenges the conditions of supervised release concerning his

association with the Florencia 13 (“F13”) street gang.

      Both parties agree that pursuant to our recent decision, United States v.

Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010), we must reverse and remand with

instructions to strike the language in condition 2 that Palma may not associate with

“persons associated with the F13 gang.”

       1
         The presentence report also erred when it converted one ounce to 28.50 grams. The
correct conversion is 28.35 grams. This mathematical error is harmless because it did not impact
the guidelines range.

                                              -3-
      By contrast, we uphold the condition barring Palma from wearing,

displaying, using, or possessing any clothing or other items that evidences

affiliation with the F13 gang. Id. at 1090-91. We also affirm the condition

prohibiting Palma from being “present in any other area known to him to be a

location where F13 gang members meet or assemble.” United States v. Soltero, 510

F.3d 858, 865-67 & n.9 (9th Cir. 2007).

      AFFIRMED IN PART and REVERSED IN PART.




                                          -4-
                                                                              FILED
USA v Victor Manuel Palma 09-50624                                             JUL 28 2011

                                                                          MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring:                                      U.S. COURT OF APPEALS



I do not necessarily “agree” that the amount of methamphetamine from the August

13, 2008 transaction should be two, rather than three, ounces.

      Application Note 12 provides that “[i]n an offense involving an agreement to

sell a controlled substance, the agreed-upon quantity of the controlled substance

shall be used to determine the offense level unless the sale is completed and the

amount delivered more accurately reflects the scale of the offense.” USSG §

2D1.1 (emphasis added). We have previously applied “the agreed upon quantity”

in cases in which the sale was not completed; there we affirmed sentences

calculated on the amount the defendant agreed to deliver. E.g., United States v.

Lopes-Montes, 165 F.3d 730, 730-31 (9th Cir. 1999) (defendant delivered half of

the amount negotiated before he was arrested). We have not, however, applied

Application Note 12 to a case in which the transaction was completed and more

drugs were delivered to the buyer than were agreed to be sold. Here, three ounces

were actually delivered. Under the plain language of Application Note 12, three

ounces “more accurately reflects the scale of the offense.” USSG § 2D1.1.

      I agree that the intent of Palma would be relevant to the inquiry of whether

the sentencing court should have used two or three ounces. See United States v.

Kipp, 10 F.3d 1463, 1466 (9th Cir. 1996) (the amount of drugs possessed cannot be
used to sentence for intent to distribute without findings of the amount intended for
distribution). However, that is not the only issue in the necessary analysis here.

      Yet, we do not need to engage in this analysis in this case. As the

Memorandum Disposition correctly concludes, any error was harmless due to the

omission of an ounce of methamphetamine from a later transaction that could be

used by the district court on remand to impose the same sentence. United States v.

Garcia-Guizar, 234 F.3d 483, 489-91 (9th Cir. 2000). I therefore concur in the

Memorandum Disposition, except the second paragraph.
