Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1226 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Carlos E. MALDONADO, Defendant-Appellant.

No. 89-30131.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 9, 1990.* Decided April 4, 1990.

Before JAMES R. BROWNING, POOLE and BEEZER, Circuit Judges.


MEMORANDUM** 

Maldonado challenges the sufficiency of evidence on his conspiracy conviction, and he argues that he was entitled to a reduced sentence under Sec. 3E1.1 of the Sentencing Guidelines because he accepted responsibility for his offenses. We affirm.

* On June 1, 1988 a police informant introduced Carlos Maldonado to Audie Holloway, an undercover police officer, at Maldonado's residence. Holloway told Maldonado that he wanted to purchase three ounces of cocaine. Maldonado made some telephone calls in an attempt to fill Holloway's order. The three then left Maldonado's house and traveled to another building. Maldonado entered the building with $3,300 received from Holloway. An hour and one-half later, Holloway and the informant picked up Maldonado and returned to Maldonado's house where Holloway received three ounces of cocaine.

On June 10, 1988, Holloway placed an order with Maldonado for one-half kilogram of cocaine. Maldonado asked Norberto Gonzales for help in acquiring the cocaine, and Gonzales telephoned Gerald Strachan to obtain it. Holloway went to Maldonado's house where he met Maldonado and Gonzales. Strachan then arrived, and he left to get the half kilogram after he saw that Holloway could pay for the cocaine.

Strachan returned with the cocaine, and Holloway gave Maldonado $15,000 for the half kilogram in a back bedroom. They then entered the kitchen where they found Strachan, Gonzales, and an unidentified individual. Strachan, Maldonado, and the unidentified individual began to count the money. Holloway wanted to weigh the cocaine, but Maldonado did not have a proper scale. Maldonado decided to keep two quarter ounces, and he refunded $500 to Holloway. Strachan and the unidentified person left with the money.

On June 24, 1988, Holloway telephoned Maldonado in an attempt to purchase one kilogram of cocaine. Holloway asked if he could get a kilogram of cocaine for $22,000. Maldonado originally stated that a kilogram would cost around $26,000 or $27,000, but eventually said that he could sell Holloway a kilogram for $22,000. On July 21, 1988, Maldonado and Holloway discussed a purchase of one-half kilogram of cocaine, and Maldonado gave Holloway a .8 gram sample, representative of the quality of cocaine Maldonado could obtain for Holloway.

Maldonado, Gonzales, and Strachan were charged with conspiracy to distribute cocaine on November 15, 1988. 21 U.S.C. § 846. In addition, Maldonado was charged with distributing cocaine on June 1, 1988, June 10, 1988, and July 21, 1988 in violation of 21 U.S.C. § 841(a) (1). He pleaded guilty to distributing .8 grams on July 21, 1988. A jury found Maldonado guilty of conspiracy and guilty of distributing cocaine on both June 1, 1988 and June 10, 1988.

Under the sentencing guidelines, the base level for the offense was 26, carrying a range of 63 to 78 months. Maldonado argued that the level should be reduced two points because he accepted responsibility for the offense. Sentencing Guidelines, Sec. 3E1.1(a). The resulting level of 24 carries a range of only 51 to 63 months. The trial judge found that Maldonado had not accepted responsibility, and he imposed a sentence of 70 months with four years of supervised release following custody. On appeal, Maldonado challenges the sufficiency of evidence to support his conspiracy conviction, and he argues that the trial judge should have reduced his sentence because he accepted responsibility.

II

"On a challenge to the sufficiency of the evidence, the standard of review is whether there is substantial evidence to support the conviction. The court must view the evidence in the light most favorable to the government. If any rational jury could find the essential elements of the crime beyond a reasonable doubt, the conviction must be affirmed." United States v. Luttrell, 889 F.2d 806, 809 (9th Cir. 1989).

" [C]onspiracy is established by an agreement to engage in criminal activity, one or more overt acts taken to implement the agreement, and the requisite intent to commit the substantive crime." Id. "The agreement need not be explicit; it may be inferred from the defendant's acts pursuant to a fraudulent scheme or from other circumstantial evidence." United States v. Cloud, 872 F.2d 846, 852 (9th Cir.), cert. denied, 110 S. Ct. 561 (1989). "An inference of the existence of a conspiratorial agreement may also be drawn if there be concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose." Id.

Maldonado argues that the June 10, 1988 sale alone cannot support a conspiracy conviction. He maintains that conspiracy requires more than participation in a sale. See United States v. Izzi, 613 F.2d 1205, 1210 (1st Cir.), cert. denied sub nom. Santos v. United States, 446 U.S. 940 (1980); United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.), cert. denied, 439 U.S. 958 (1978).

Mancillas held that a buyer and a seller could not be co-conspirators because they do not act in concert for a common purpose. Id. In this case, however, Maldonado, Gonzales and Strachan all acted jointly as sellers. Izzi mis-cites Mancillas for the proposition that a conspiracy cannot exist among several sellers in a sale. 613 F.2d at 1210. Maldonado's reliance on the First Circuit decision in Izzi is misplaced because we have affirmed conspiracy convictions where the co-conspirators were sellers in a single sale. See, e.g., United States v. Crespo de Llano, 838 F.2d 1006, 1019 (9th Cir. 1987).

Maldonado's conduct with respect to Gonzales and Strachan implies that the three had come to an agreement to sell Holloway cocaine. The pre-sale conversations between Maldonado and Gonzales, and between Gonzales and Strachan, as well as the meetings that took place on June 10, 1988 permit an inference of a conspiratorial agreement. Maldonado's direct participation in the sale with Holloway satisfies the overt act requirement, and the facts indicate that Maldonado had an intent to distribute cocaine. Sufficient evidence supports Maldonado's conspiracy conviction.

III

In general, district court interpretations of the Sentencing Guidelines are reviewed de novo. United States v. Williams, 891 F.2d 212, 214 (9th Cir. 1989). However, the application notes to the Sentencing Guidelines state that " [t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation." United States Sentencing Commission, Guidelines Manual, Sec. 3E1.1 at 3.22 (1987). We recently decided to apply the "clearly erroneous" standard to district court determinations of acceptance of responsibility. United States v. Gonzalez, No. 89-50131, slip op. 2485, 2487 (9th Cir. March 7, 1990).

Maldonado argues that he accepted responsibility by pleading guilty to distributing .8 grams of cocaine on July 21, 1988, and by limiting his defense to cross-examination and legal arguments. However, a guilty plea does not automatically entitle a defendant to a reduced sentence. Id. at Sec. 3E1.1(c). After considering all the evidence, the district judge concluded: "I find that the defendant did not accept responsibility in this sense. The plea to one count appeared to me to be tactical. I could see nothing in the defendant's conduct that amounted to acceptance of responsibility." The district court's decision is not without foundation and entitled to great deference. Because the acceptance of responsibility determination is not clearly erroneous, we conclude that the district judge applied a proper sentence.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3