United States v. Victor Palma

MEMORANDUM **

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-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…

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NOT FOR PUBLICATION JUL 28 2011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-

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…

concurring:

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 eases 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…