Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

No. 90-50136.

United States Court of Appeals, Ninth Circuit.

Before BEEZER, KOZINSKI and RYMER, Circuit Judges

MEMORANDUM^** 

Jose Adrian Alatorre appeals his sentence under the United States Sentencing Guidelines ("Guidelines"), following conviction by jury trial, for conspiracy to manufacture and transfer counterfeit government obligations in violation of 18 U.S.C. § 371 and counterfeiting parts of government obligations in violation of 18 U.S.C. § 474. Alatorre contends, for the first time, that the district court erred in failing to reduce his base offense level by three levels pursuant to U.S.S.G. Sec. 2X1.1(b) (2). We have jurisdiction under 28 U.S.C. § 1291 and affirm the sentence.

Section 2X1.1(b) (2) grants a three level reduction in the base offense level for defendants convicted of conspiracy, where law enforcement authorities intervened well before the completion of the conspiracy's goal, or where the defendants had completed only part of the object offense. Alatorre was arrested while he and a co-conspirator were in the process of printing more than 50,000 counterfeit $100 notes. He argues that they were not about to complete the object offense when police officers arrested them and they are thereby entitled to a three level downward adjustment.

Alatorre did not request the adjustment at the sentencing hearing and did not raise the issue in his objection to the presentence report. Alatorre raises his contention for the first time before this court.

Generally, this court will not review issues raised for the first time that require factual findings for their resolution. See United States v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990). This court has the discretion to review an issue raised for the first time only if:

(1) there are "exceptional circumstances" why the issue was not raised in the trial court, (2) the new issue arises while the appeal is pending because of a change in the law, or (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.

Smith, 905 F.2d at 1302 (citation omitted); see Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985); compare United States v. Hayden, 860 F.2d 1483, 1485 (9th Cir. 1988) (whether district court abused its discretion by dismissing portions of indictments with prejudice is purely legal issue and reviewable on appeal).

Determining the extent to which a conspiracy has been completed requires factual findings pertaining to the object and nature of the conspiracy. Therefore, this court declines to reach the merits of Alatorre's claim because he failed to raise it below. See Smith, 905 F.2d at 1302.

The sentence is AFFIRMED.