United States of America, Plaintiff-appellee, v. Armando Viscaino-garcia, Defendant-appellant, 41 F.3d 1516 (10th Cir. 1994)

Defendant-appellant Armando Viscaino-Garcia was tried by a jury and convicted of conspiring to possess with intent to distribute and to distribute cocaine, 21 U.S.C. §§ 841(a) (1); 846; 18 U.S.C. § 2. Sentencing occurred on July 30, 1993, and the judgment of conviction was entered on August 13, 1993. On appeal, he claims that the district court erred in determining the quantity of drugs used in determining his base offense level at 28, U.S.S.G. Sec. 2D1.1(c) (8), and in making a two-point upward adjustment for role in the offense as an organizer and leader, U.S.S.G. Sec. 3B1.1(c). By letter dated July 31, 1993, filed in the district court on August 9, 1993, Mr. Viscaino-Garcia indicated his intent to seek appellate review. We construe this as a premature notice of appeal which ripened upon entry of the judgment of conviction. See Fed. R. App. P. 4(b); Smith v. Barry, 112 S. Ct. 678, 682 (1992). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

The district court's quantity determination is not clearly erroneous. See United States v. Bara, 13 F.3d 1418, 1420 (10th Cir.), cert. denied, 114 S. Ct. 1662 (1994). Ample evidence supports the district court's implicit finding that Mr. Viscaino-Garcia intended to purchase two kilos of cocaine and had a reasonably firm method to obtain the necessary extra funds to pay for two kilograms. See U.S.S.G. Sec. 2D1.1, cmt. (n. 12).

Likewise, the district court's finding that Mr. Viscaino-Garcia was a leader and organizer is not clearly erroneous. See United States v. Chatman, 994 F.2d 1510, 1518 (10th Cir.), cert. denied, 114 S. Ct. 230 (1993). Mr. Viscaino-Garcia directed his codefendant to place a telephone call to facilitate the transaction, arranged the location and handled other aspects of this drug deal.

AFFIRMED.