U.S. v. Gomez, 191

• Decision Date: 07 January 1997
• Docket Number: D,No. 191,191
• Citation: 103 F.3d 249
• Parties: UNITED STATES of America, Appellee, v. Ramon Emilio GOMEZ, Defendant, Raymond Santos, Defendant-Appellant. ocket 96-1074.
• Court: U.S. Court of Appeals — Second Circuit

Page 249

103 F.3d 249

UNITED STATES of America, Appellee, v. Ramon Emilio GOMEZ, Defendant, Raymond Santos, Defendant-Appellant.

No. 191, Docket 96-1074.

United States Court of Appeals, Second Circuit.

Argued Sept. 4, 1996.

Decided Jan. 7, 1997.

Michael M. Milner, New York City, for Defendant-Appellant Santos.

David L. Wales, New York City, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Alexandra Rebay, Assistant United States Attorney, of counsel), for Appellee.

Before: FEINBERG, CARDAMONE and McLAUGHLIN, Circuit Judges.

FEINBERG, Circuit Judge:

Raymond Santos appeals from a sentence of the United States District Court for the Southern District of New York, John E. Sprizzo, J. Following a plea of guilty, Santos was convicted in May 1995 of conspiracy to possess with intent to distribute approximately 125 grams of heroin, possessing heroin with intent to distribute, conspiracy to deal firearms, and two counts each of unlawfully dealing firearms and possessing a firearm as a convicted felon. Santos received a sentence of 96 months imprisonment followed by five years of supervised release. His appeal raises a number of challenges to his sentence, including whether Santos lacked the financial capacity to purchase 125 grams of heroin, whether he conspired with a culpable coconspirator to make the purchase, and whether he should have received a lesser sentence based on allegations of his minor role in the firearm transactions, his extraordinary acceptance of responsibility and cooperation, and the "sentencing manipulation" in the government's investigation. For reasons set forth below, we affirm.

I. Facts and Proceedings Below

The relevant facts are relatively simple. In September 1993, an undercover agent (the U/C) of the Bureau of Alcohol, Tobacco and Firearms (ATF), posing as a drug dealer seeking to sell heroin and to purchase firearms to protect his drug operation, met with Santos and another individual (John Doe). Santos agreed to sell two pistols to the U/C for a total of $700, and told the U/C to deal with John Doe. The U/C handed $700 in cash to John Doe, who then gave the two pistols to the U/C and the $700 to Santos. At the meeting, Santos also mentioned that he sold heroin and cocaine and needed a new heroin supplier.

The next day, in a recorded telephone conversation, Santos and the U/C discussed the sale of two additional firearms, which Santos described as "an AK-47 and a Thompson." In the course of the conversation, the U/C explained that he needed the guns to protect his drug distribution "spots," and asked Santos which firearms he had found effective for that purpose. Santos assured the U/C that, for the purpose described, the additional guns and the pistols he had already sold him would "work! They sure as hell work!" Santos also discussed his own narcotics trafficking, and asked the U/C to provide him "fifty or a hundred" grams of heroin.

In a recorded conversation two days later, the U/C again told Santos that he needed the two additional firearms for use at his drug spots, explaining that he had recently been robbed. Santos agreed to sell him the guns. Later that afternoon, Santos and another individual met with the U/C and another undercover ATF agent (U/C-2) to transact the second gun purchase. During that meeting, Santos again inquired about purchasing heroin from the U/C. Santos stated that he was "using an eighth" of a kilogram (125 grams) "every week," and discussed the possibility of purchasing that amount or more.

In October 1993, in a recorded conversation, Santos agreed to purchase heroin from the U/C at $135 per gram, stating that the price was no problem for him. Although no specific quantity was discussed, the U/C calculated a total purchase price of $16,875. The price did not surprise Santos, and he readily assented. Based on that price, the amount of heroin to be purchased was 125 grams. In a telephone conversation recorded the next day, the U/C specifically referred to 125 grams, and Santos again agreed. Santos and the U/C further agreed that Santos should bring $11,000 of the purchase price with him to the deal, the remainder to be paid later.

Thereafter, Santos and co-defendant Ramon Gomez met with the U/C and U/C-2 to purchase the heroin from them, an operation characterized by the government as a reverse sting. ¹ The U/C represented that the "material" was in the trunk of his car and walked over to the car. Gomez followed at Santos' direction. When Gomez picked up the brown paper bag indicated by the U/C, law enforcement officers arrested him and Santos.

At the time of the arrests, the officers seized approximately $2039 in cash from Santos, and two slips of paper containing Santos' beeper number and a price list for drugs from Gomez. An inventory search of Santos' car, which was parked nearby, yielded 62 glassine envelopes of heroin, a small quantity of cocaine, a holster and bullets.

Santos and Gomez were indicted in November 1993. In May 1995, Santos pleaded guilty to all seven counts charged in the indictment against him. Gomez was indicted on only one count, conspiracy to possess heroin with intent to distribute. He was tried in June 1995 and acquitted. In January 1996, Santos was sentenced. This appeal, which raises only sentencing issues, followed.

II. Discussion

A. Capacity to Purchase

Santos first argues that he lacked the financial capacity to purchase 125 grams of heroin. Although Santos concedes that he had entered into negotiations to purchase the full amount, he and Gomez had only $2039 in their possession at the time they were arrested, enough to purchase some 15 grams of heroin. He therefore asks us to remand for resentencing based upon the quantity of drugs that he did have capacity to purchase. We decline to do so.

Judge Sprizzo stated that "not only by a preponderance of the evidence, but by clear and convincing evidence ... [Santos] was capable of purchasing more drugs.... That argument as to his lack of capacity borders on the frivolous." Santos maintains that Judge Sprizzo applied the wrong legal criteria in this determination. The issue thus raised, in view of Santos' argument to us that our cases are inconsistent on the point, requires fuller discussion.

Both Santos and the government appear to agree that the relevant Sentencing Guideline is Section 2D1.1. Commentary to that section reads in relevant part:

In 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. For example, a defendant agrees to sell 500 grams of cocaine, the transaction is completed by the delivery of the controlled substance--actually 480 grams of cocaine, and no further delivery is scheduled. In this example, the amount delivered more accurately reflects the scale of the offense. In contrast, in a reverse sting, the agreed-upon quantity of the controlled substance would more accurately reflect the scale of the offense because the amount actually delivered is controlled by the government, not by the defendant. If, however, the defendant establishes that he or she did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.

U.S. Sentencing Commission Guidelines Manual, § 2D1.1, comment (n.12) (1995) (emphasis added) (Application Note 12). Santos contends that the last sentence of Application Note 12 required the sentencing court to consider whether he was reasonably capable of purchasing the agreed-upon quantity (125 grams) of heroin.

The plain language of the last sentence of Application Note 12 reveals that it applies only where a defendant is selling the controlled substance, that is, where the defendant "provid[es] the agreed-upon quantity of the controlled substance." (emphasis added) It is hard to believe that the narrowness of this language is inadvertent, coming immediately after a discussion of what happens in a reverse sting, where the government agent "provides" the controlled substance and the defendant provides only the money to purchase it. Moreover, in a reverse sting, as the government points out, drug traffickers making an illegal purchase frequently hold purchase money in reserve nearby for ready access while they test the quality of the drugs being purchased. We note also that drugs have been delivered on consignment, United States v. Colon, 905 F.2d 580, 582 (2d Cir.1990), or on credit with a down payment, United States v. Fowler, 990 F.2d 1005, 1006 (7th Cir.1993). These possibilities lend support to the logic of the Sentencing Commission's distinction.

It is true that this court has utilized different approaches in applying the predecessor to Application Note 12, U.S.S.G. § 2D1.4, comment (n.1) (Nov.1991) (Application Note 1), in the reverse sting context. In United States v. Vargas, 986 F.2d 35 (2d Cir.1993), we rejected an argument similar to that raised by Santos today, but we did so on factual grounds (just as Judge Sprizzo did in this case). Defendant Vargas was convicted of possessing cocaine with intent to distribute. He was sentenced on the basis of 50 kilograms, the amount of cocaine which he believed he was buying from the government undercover agent at the time of his arrest. Id. at 39. Vargas contended on appeal that he should have been found incapable of purchasing the full amount of cocaine, as he had delivered to the supposed seller (the government agent) only $295,000 of the $500,000 purchase price upon taking possession. Without...