US v. Perez De Dios

• Decision Date: 19 January 2001
• Docket Number: No. 00-1193,00-1193
• Citation: 237 F.3d 1192
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GILBERTO PEREZ DE DIOS, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1192

237 F.3d 1192 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GILBERTO PEREZ DE DIOS, Defendant-Appellant.

No. 00-1193

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 19, 2001

Appeal from the United States District Court for the District of Colorado. (D.C. No. 99-CR-114-S)

Submitted on the briefs:^*

Normando R. Pacheco, Denver, Colorado, for Defendant-Appellant.

Thomas L. Strickland, United States Attorney and James C. Murphy, Assistant United States Attorney, for Plaintiff-Appellee.

Before SEYMOUR, EBEL and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

This appeal presents two issues, one settled and the other not yet addressed in this Circuit. First, in a "reverse sting" by the police, is the defendant responsible, for the purpose of calculating drug quantity under the Guidelines, for the amount of drugs he agreed to buy from the seller-government agent, or is he responsible for only the amount of drugs actually contained in the "dummy" package? We are bound by United States Sentencing Guideline ("U.S.S.G.") 2D1.1, Application Note 12 and prior decisions of this Circuit to hold that in a reverse sting the defendant is responsible for the agreed-upon amount. Second, does a defendant's prior conviction and sentence of one year of probation for driving without proof of insurance count when computing criminal history category under U.S.S.G. 4A1.2(c)? We have not confronted this question before, and we now hold that it does. We exercise jurisdiction pursuant to 18 U.S.C. 3742(a) and AFFIRM.

BACKGROUND

On March 8, 1999, defendant-appellant Gilberto Perez de Dios ("Perez de Dios") called Felipe Hernandez-Carrillo ("Hernandez-Carrillo") to arrange a drug transaction in which he would buy cocaine from Hernandez-Carrillo. Hernandez-Carrillo, recently arrested, was cooperating with the Drug Enforcement Agency ("DEA"). Using Hernandez-Carrillo as a seller, the DEA set up Perez de Dios for a "reverse sting" i.e., a transaction where the government arranges for the defendant to purchase (what he believes to be) drugs from an undercover government agent.

Later that day and the next, the two men spoke to each other using partially coded language several more times to establish the time and place to conduct the transaction. During one of these telephone conversations, Perez de Dios asked Hernandez-Carrillo how much one kilogram of cocaine would cost, and Hernandez-Carrillo told him $22,000. They agreed to meet on March 9, 1999, at a car wash in Carbondale, Colorado. When they met, Perez de Dios asked for the cocaine. Hernandez-Carrillo showed him a package wrapped in black electrical tape which the DEA had provided.¹ Perez de Dios objected that it felt too little, but Hernandez-Carrillo assured him that it was "more than half a kilo" and was "really good." Perez de Dios took possession of the package. Perez de Dios stipulated in his Plea Agreement that he went to the car wash with the intention of receiving cocaine from Hernandez-Carrillo and that he intended to later distribute some of that cocaine.

On January 20, 2000, Perez de Dios pled guilty to one count of possession with intent to distribute and attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(B) and 846. In the Plea Agreement, Perez de Dios and the government acknowledged that there was no agreement as to the amount of cocaine involved in the March 9, 1999, drug transaction between Perez de Dios and Hernandez-Carrillo. The parties agreed that the court at sentencing would determine the amount of cocaine for which Perez de Dios would be held responsible.

At the sentencing hearing on May 4, 2000, the court adopted the factual findings and Guidelines application of the U.S. Probation Office in its presentence investigative report. The court found that Perez de Dios and Hernandez-Carrillo had agreed that Perez de Dios would buy one kilogram of cocaine from Hernandez-Carrillo at the car wash. Further, the court determined that Perez de Dios' prior conviction for failure to provide proof of insurance,² in violation of Colo. Rev. Stat. 42-4-1409, would count in his criminal history score, giving him a criminal history category of II. The court sentenced Perez de Dios to the statutory minimum of sixty months. Perez de Dios filed this appeal on May 8, 2000.

DISCUSSION

Perez de Dios contends that the district court erred when it (1) held him responsible under the Guidelines for one kilogram of cocaine, when the "dummy" package in the reverse sting operation contained only two ounces (.062 kilograms) and (2) included his prior misdemeanor conviction and sentence of one year probation for driving without proof of insurance in its computations to determine his criminal history category under the Guidelines. We find that the district court properly sentenced Perez de Dios, so we AFFIRM.

A. Drug Quantity in a 'Reverse Sting'

"A sentencing court's factual findings on the quantities of drugs attributable to a defendant are reviewed for clear error, while legal issues are reviewed de novo." United States v. Hardwell, 80 F. 3d 1471, 1497 (10th Cir. 1996).

Application Note 12 for U.S.S.G. 2D1.1 provides,

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. . . 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.

(Emphasis added). A reverse sting is precisely what happened in this case: The DEA engaged Hernandez-Carrillo to make a controlled sale to Perez de Dios; it provided a "dummy" package meant to simulate one kilogram of cocaine with which Hernandez-Carrillo conducted the deal with Perez de Dios. Thus, Application Note 12 controls, and Perez de Dios is held responsible for the quantity of cocaine that he agreed to purchase. See United States v. Bara, 13 F.3d 1418, 1420 (10th Cir. 1994). The quantity Perez de Dios agreed to purchase is a fact question reviewed for clear error. See Hardwell, 80 F.3d at 1497.

Perez de Dios stipulated to his intent to obtain cocaine from Hernandez-Carrillo at the car wash. He contends, however, that he could not have agreed to purchase one kilogram of cocaine, at a price of $22,000, for he had no money on him at the time of the transaction. At the sentencing hearing, Hernandez-Carrillo testified that he did not expect to be paid by Perez de Dios at the car wash that day because Perez de Dios was already a client and "that's how I worked." In other words, Hernandez-Carrillo permitted certain clients, like Perez de Dios, to buy cocaine on credit.

In United States v. Hardwell, 80 F.3d 1471 (10th Cir. 1996), this court confronted a similar situation, in which the defendants disputed the amount of drugs properly attributed to them based on their lack of ability to pay for them at the time of the transaction. See id. at 1497-98. This court rejected the defense on the grounds that, first, the government had proven that the defendants had the intent to acquire the drugs and, second, evidence supported "an inference that defendants intended to obtain the drugs [at the time of the relevant transaction] and worry about paying for them later." Id. at 1498. This court noted, "A drug buyer who lacks the full purchase price may nonetheless intend to obtain the negotiated quantity by force or deception, or on a credit or consignment basis." Id. at 1497; see also id. at 1498 ("'Fronting,' or supplying drugs on consignment or on credit, is a known practice among drug dealers.").

In this case, Perez de Dios stipulated that he intended to acquire the drugs at the transaction with Hernandez-Carrillo, and he has produced no evidence to counter Hernandez-Carrillo's testimony that Hernandez-Carrillo was (or, more appropriately, appeared to be) "fronting" the drugs to Perez de Dios. Thus, we conclude that the court did not commit clear error by finding that Perez de Dios had agreed to purchase one kilogram of cocaine from Hernandez-Carrillo.³

B. Driving Without Proof of Insurance

Perez de Dios argues to us, as he did to the district court below, that his misdemeanor conviction for driving without proof of insurance should not be counted when calculating his criminal history category under the Sentencing Guidelines. He contends that this prior conviction is similar to a minor traffic infraction, like speeding, and thus should be excluded under U.S.S.G. 4A1.2(c)(2). The district court disagreed, finding that it was not similar to minor traffic infractions and that it should be counted under 4A1.2(c)(1). "We review the district court's interpretation and application of the [G]uidelines de novo." United States v. Hooks, 65 F.3d 850, 854 (10th Cir. 1995).

To calculate a defendant's criminal history category, a district court assigns a defendant criminal history points for each of his prior sentences of imprisonment and adds the points together. The total of the criminal history points determines the defendant's criminal history category.

Id. at 855 (citing U.S.S.G. 4A1.1 & accompanying commentary; U.S.S.G. Ch.5 Pt. A, Sentencing Table). Since the language of 4A1.2(c) is important, we quote it in full:

(c) Sentences Counted and Excluded: Sentences for all felony offenses are counted. Sentences for misdemeanor and petty offenses are counted except as follows:

(1) Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of at least one year or a term of imprisonment for at least thirty days, or (B) the prior offense was similar to an instant offense:

Careless or...