Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

MEMORANDUM^* 

Jose Manuel Salazar-Gerardo appeals from his conviction and sentence for possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a) (1) and (b) (1) (c). This court has jurisdiction of Salazar-Gerardo's timely appeal pursuant to 28 U.S.C. § 1291, and we affirm.

Salazar-Gerardo argues that the district court erred by denying his motion to dismiss for outrageous government conduct. As the Government indicates, this issue involves the failure of the Government to produce the confidential informant for trial. We review the denial of a motion to dismiss based on outrageous government conduct de novo. United States v. Citro, 842 F.2d 1149, 1152 (9th Cir.), cert. denied, 488 U.S. 866 (1988). In this circuit, a defendant has the burden of making a proper request for the production of a material informant. United States v. Bonilla, 615 F.2d 1262, 1264 (9th Cir. 1980). After reviewing the record, we conclude that Salazar-Gerardo did not make a proper request. He only made a motion to discover the identity of the informant. The error asserted by the appellant was therefore waived.

Gerardo contends that the district court erred by instructing the jury that he did not have to know that the controlled substance was heroin. He argues that under the Sentencing Guidelines, the type of the controlled substance has become an element of the crime and must therefore be proved beyond a reasonable doubt. Whether the district court's jury instruction misstated the elements of the offense is a question of law which we review de novo. United States v. Douglas, 780 F.2d 1472, 1475 (9th Cir. 1986). This court has explained that a defendant charged with possessing a controlled substance need not know the exact nature of the substance. United States v. Ramirez-Ramirez, 875 F.2d 772, 774 (9th Cir. 1989). A defendant "can be convicted under [21 U.S.C.] Sec. 841 ... if he believes he has some controlled substance in his possession." Id. Therefore, the district court's jury instruction was proper.

Gerardo challenges the district court's determination that he was the leader of the offense. First, he argues that, because the sentencing judge was different from the trial judge, this court should review the offense level calculation de novo. Gerardo cites no authority for this proposition. It is well-established in this circuit that a district court's decision regarding a defendant's role in the offense is reviewed for clear error, United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990), and we find no reason to adopt a different standard where the sentencing judge is different than the trial judge.

On the merits, we find that the district court's determination that Gerardo was the leader of the criminal activity is not clearly erroneous. The evidence indicates that Gerardo conducted the negotiations with the DEA agents prior to his arrest. Gerardo's accomplice, Mario Castro-Lopez, was present during the negotiations and was arrested along with Gerardo. However, the evidence indicated that Gerardo was in charge of the transaction.

Gerardo further contends that the district court sentenced him improperly to 51 months' imprisonment "as a means to an end"--the end being a sentence of sixty months. However, as the Government indicates, the applicable sentencing range for Gerardo was 51 to 63 months, based on a specific offense level of 24 and a criminal history category of one. The district court therefore sentenced Gerardo to the lowest sentence within the applicable range. There can be no error under these facts.

AFFIRMED.