Felix
United States v. Felix
Opinion
Lead Opinion
Trimble, J.
This is an appeal after resentencing. The principal issue is whether the base offense level should have been calculated with reference to the amount of drugs actually processed and delivered, rather than the amount the parties negotiated. We must decide whether an amendment to the Commentary to U.S.S.G. § 2D1.1 should apply retroactively-
FACTS AND PROCEDURAL HISTORY
Santos Alvarez Felix, Adolpho Leon Gomez and several co-conspirators were arrested after trying to sell cocaine to FBI undercover officers. The facts precipitating the arrests are straightforward. Felix, who was primarily the drug courier, delivered a diaper box containing five, separately wrapped packages of cocaine to the house where the sale was to occur. Each package was supposed to contain a kilo of cocaine, although in fact each package contained slightly less. The conspirators would have sold the cocaine immediately, but the FBI insisted on taking one gram samples from each bag first. After the FBI left with the samples, Felix drove off to put the cocaine in storage until the next meeting with the FBI. At that point, the FBI *1059 arrested all of the conspirators and seized the cocaine.