Unpublished Disposition, 923 F.2d 863 (9th Cir. 1990)

MEMORANDUM^** 

Juan Aispuro-Torres ("Aispuro") appeals his conviction and sentence, following a jury trial, for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. We affirm in part, and vacate and remand in part.

DISCUSSION

Aispuro contends that the evidence presented at trial by the government was insufficient to support a conviction of conspiracy to distribute cocaine. We reject this contention. There was substantial evidence presented at trial connecting Aispuro to the cocaine distribution conspiracy. Robert McCullough testified that he had bought cocaine from Aispuro and his brother, Joaquin Aispuro-Torres, on several occasions and that Aispuro had specifically agreed to sell him two kilograms of cocaine prior to McCullough's arrest on August 16, 1988. McCullough testified that Aispuro called him from Cle Elum, Washington, on August 15, 1988, after a trip to California in order to inform him that the two kilograms of cocaine were available. McCullough also testified that Aispuro came to his house on the morning of August 16, 1988, to discuss the two-kilogram cocaine transaction. This testimony was corroborated in part by Officer Robert Alan Smet, who testified that he observed Aispuro leave McCullough's residence in a black Ford Bronco on the morning of August 16, 1988. Finally, McCullough testified that dealing with one of the Aispuro brothers was the same as dealing with both.

In addition, detective George Barnett testified that Aispuro and his brother entered a green shed outside of Joaquin Aispuro-Torres' residence on the night of August 16, 1988, that they remained in the shed for approximately ten minutes, and that when they reappeared, Joaquin Aispuro-Torres was carrying a container against his torso. Detective Barnett then testified that Aispuro and his brother went into the house, and that Joaquin Aispuro-Torres subsequently left the residence carrying a medium-sized paper bag and drove off in a silver compact. Approximately twenty minutes later, Joaquin Aispuro-Torres was arrested at McCullough's residence after attempting to complete the two-kilogram cocaine transaction.

We conclude that this evidence was sufficient for a rational trier of fact to have determined that Aispuro knowingly acted in furtherance of a conspiracy to distribute cocaine. See United States v. Power, 881 F.2d 733, 737 (9th Cir. 1989).

Aispuro next contends that the district court improperly calculated his base offense level based on an incorrect statement of the weight of the cocaine in his presentence report. Aispuro asserts that the base offense level calculation of 28, based on a weight of 2,126 grams of cocaine, was incorrect in light of the fact that the stipulated weight of the cocaine in his brother's trial was less than 2000 grams, resulting in a base offense level of 26. Aispuro also alleges incompetency on the part of his trial counsel for not investigating the amount of cocaine involved. We reject both claims.

First, we conclude that the district court's adoption of a base offense level of 28 was not erroneous. Aispuro's presentence report computed a base offense level of 28 based upon a weight of 2,126 grams of cocaine. The district court adopted this figure. Aispuro's counsel did not dispute this figure at the sentencing hearing, thus waiving any alleged error on appeal. United States v. Visman, No. 89-10630, slip op. at 14701-02 (9th Cir. November 28, 1990). Moreover, we note that even if the 2,126 gram figure was incorrect, Aispuro's base offense level of 28 was still proper. United States Sentencing Guidelines ("U.S.S.G.") Sec. 2D1.4 provides in pertinent part: "If a defendant is convicted of a conspiracy ... involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed." The testimony adduced at trial established that the object of the conspiracy was the sale of two kilograms, or 2000 grams of cocaine. Therefore, regardless of the amount of cocaine actually delivered, Aispuro's base offense level was properly computed on the basis of 2000 grams of cocaine. See United States v. Alvarez-Cardenas, 902 F.2d 734, 736 (9th Cir. 1990).¹ 

Hence, we also reject Aispuro's contention that his counsel at the sentencing hearing was incompetent. Because we have concluded that the base offense level was properly calculated to be 28, Mr. Salazar's performance could not have served to prejudice Aispuro's defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Finally, Aispuro contends that the district court erred by imposing a $25,000 fine without considering his ability to pay. We agree. U.S.S.G. Sec. 5E1.2(d) (2) states in mandatory language that in determining the amount of the fine to be imposed, the court shall consider: "the ability of the defendant to pay the fine (including the ability to pay over a period of time) in light of his earning capacity and financial resources." Here, the presentence report set forth Aispuro's statement that he had no current assets. No contrary evidence or findings were set forth in the presentence report or presented at the sentencing hearing. Thus, the record does not establish whether Aispuro has the earning capacity to pay the $25,000 fine. Accordingly, imposition of the fine violated the Guidelines. United States v. Seminole, 882 F.2d 441, 443 (9th Cir. 1989). We vacate the fine and remand this issue to the district court.

Aispuro's motion for reconsideration of his motion to augment the record is denied.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.