* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALFONSO BELTRAN-MARTINEZ, Defendant-Appellant. No. 97-4108 (D.C. No. 96-CR-277) (D. Utah)

ORDER AND JUDGMENT *

Before KELLY , HOLLOWAY , and BRISCOE , Circuit Judges.
Defendant Alfonso Martinez-Beltran pleaded guilty t o one count of distributing methamphetamine, in violation of 21 U. S.C. § 841(a)(1) and 18 U.S.C. § 2, and was sentenced to 140 months’ impris onment. Defendant appeals his sentence, claiming the district court improperl y calculated the amount of methamphetamine attributable to him for purposes of determining his base offense level, and the court failed to rule on his request for a downward adjustment for-2-

his alleged role as a minor participant. We exerci se jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. On two separate occasions in October 1996, as part of its investigation of a drug operation, Drug Enforcement Administration (DE A) task force undercover agents in Salt Lake City purchased narcotics from R oberto Mendez-Gomez. On November 21, 1996, an undercover agent, via a coope rating witness, agreed to purchase approximately three pounds of methamphetam ine from Mendez-Gomez for a total price of $27,000. Under the terms of t he agreement, Mendez-Gomez was to deliver the methamphetamine the following mo rning to a hotel room rented by the undercover agent. Mendez-Gomez did not arrive at the hotel room as pl anned on the morning of November 22 but the cooperating witness had seve ral telephone conversations with his girlfriend, Brandy Barcelon, who assured the cooperating witness that the methamphetamine would be delivered. Mendez-Gomez arrived at the hotel room at approximately 2:50 p.m., accompanied by defendant. After they entered the hotel room, defendant lifted his shirt to remove a one-pound package of methamphetamine, which he gave to the cooperating w itness. In return, the undercover agent gave defendant $9,000 in cash, whi ch defendant counted. Mendez-Gomez told the undercover agent that two add itional pounds of-3-

methamphetamine were being delivered to his apartme nt. The undercover agent indicated he would buy the additional methamphetami ne, but it would have to be immediately because he was scheduled to leave the c ity on an afternoon flight. Both Mendez-Gomez and defendant used the telephone in the hotel room in the presence of the undercover agent to make arrangements for delivery of the methamphetamine. Mendez-Gomez and defendant were arrested by task force agents as they left the hotel room.
II.
Calculation of defendant’s base offense level Defendant contends the district court erred in calc ulating his base offense level under U.S.S.G. § 2D1.1(c) by finding the appl icable amount of methamphetamine at issue was three pounds (the tota l amount defendant agreed to sell to the undercover agent), rather than one poun d (the amount defendant actually delivered prior to his arrest). According to defendant, he was not capable of producing the additional methamphetamine and he did not intend to do so. We review a sentencing court’s drug quantity determ inations for clear error. United States v. Ruiz-Castro , 92 F.3d 1519, 1534 (10th Cir. 1996). Under the Sentencing Guidelines, the offense level of a d efendant convicted of a narcotics offense is ordinarily governed by the amo unt of narcotics involved, including quantities negotiated but not ultimately consummated. See U.S.S.G. §-4-

2D1.1(a)(3), (c), and comment n.12; United States v. Lombardi , 138 F.3d 559, 562 (5th Cir. 1998); United States v. Desimone , 119 F.3d 217, 228 (2d Cir. 1997); United States v. Stavig , 80 F.3d 1241, 1246-47 (8th Cir. 1996); United States v.
Raven , 39 F.3d 428, 432 (3d Cir. 1994); United States v. Steward , 16 F.3d 317, 321-22 (9th Cir. 1994). However, Application Note 12 to § 2D1.1 provides: If . . . the defendant establishes . . . he or she did not intend to provide, or was not reasonably capable of providing , the agreed-upon quantity of the controlled substance, the court sha ll exclude from the offense level determination the amount of controlle d substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing. To take advantage of Application Note 12, a defendant has the burden of proving either lack of intent or lack of capability. See Stavig , 80 F.3d at 1246-47; but see
Raven , 39 F.3d at 432-35 (discussing burden of proof iss ue under older version of Application Note 12, which did not expressly impose burden on defendant; court concluded defendant bore burden of production but n ot burden of persuasion). Here, the government clearly carried its burden of proving the quantity of drugs by a preponderance of the evidence. See United States v. Sloan , 65 F.3d 861, 865 (10th Cir. 1995). In particular, the gove rnment relied on the uncontroverted factual findings in the presentence report (PSR), which indicated defendant was personally involved in negotiations w ith the undercover agent to deliver two additional pounds of methamphetamine. Record III, PSR at 5 (defendant “admitted . . . he was involved in deliv ering approximately 400 grams-5-

of methamphetamine to the [cooperating witness] andDEA task force members for $9,000, and making arrangements for delivery of two additional pounds of the substance”). This evidence was clearly sufficient to allow the district court to conclude defendant had both the intent to deliver t he additional methamphetamine and the capability to do so. See Desimone , 119 F.3d at 229 (pre-arrest negotiations ordinarily constitute reliable admissi ons as to defendant’s intent and capacity to produce particular quantity of narcotic s). Although defense counsel argued, both in response to the PSR and during sent encing, that defendant did not intend to deliver the agreed amount and was incapab le of doing so, defendant presented no evidence on this point. Because defen dant failed to satisfy his burdens of production and proof on this issue, the district court’s rejection of his intent and capacity arguments was not clearly erron eous.

Minor participant adjustment Defendant contends the district court failed to con sider his request for a two-level adjustment pursuant to U.S.S.G. § 3B1.2 f or being a minor participant in the charged crime. Prior to sentencing, defendant filed objections to the PSR asking for the adjustment. The probation office re sponded that defendant was not entitled to a minor participant adjustment because he was equally culpable with Mendez-Gomez. At sentencing, defense counsel askedthe court “to categorize1 In his appellate brief, defendant contends he “ar gued in his Position With

Respect to Sentencing Factors and subsequently at s entencing itself, that he should [be] given a reduction based upon role in th e offense as a minor or minimal participant.” Aplt’s Br. at 12. This cont ention is wholly unsupported by the record. As outlined, the record indicates defe ndant sought only an adjustment for being a minor participant in the offense. -6- [defendant] as a minimal participant -- not a minim al, but a minor participant” in the charged offense. Record II at 13. After allow ing both sides to argue the issue, the court “reject[ed] [defense counsel’s] ar gument relative to the defendant being a minimal participant in this transaction,” a nd “adopt[ed] the factual findings and guideline application in the presentence report.” Id. at 19-20. Prior to entering judgment, the court filed minutes of th e sentencing hearing, stating: “The Court rejected the argument of [defense counse l] that the [defendant] should receive a reduction for his role in the offense as a minor participant.” Record I,
Doc. 59 at 1. Although defendant seizes upon the district court’s reference at sentencing to “minimal participant,” we believe the court full y intended to address and reject defendant’s “minor participant” argument. At no ti me did defendant assert he was entitled to a “minimal participant” adjustment. 1 Further, we find it persuasive that the court adopted the findings of the PSR, which expressly rejected defendant’s request for a minor participant adjustment. We also find compelling the minutes of the sentencing hearing, w hich accurately reflect the-7-

court’s intent to reject the “minor participant” ar gument. Based upon the record before us, we conclude the court’s reference to “mi nimal participant” at sentencing was simply a misstatement precipitated b y defense counsel’s own misstatement earlier in the hearing. We further conclude the district court did not comm it clear error in refusing to grant defendant a minor participant adjustment. United States v. Ayers , 84 F.3d 382, 383 (10th Cir. 1996) (outlining applicabl e standard of review). The sole focus in determining whether a minor participant adjustment is appropriate is “culpability, not status or position.” United States v. Donaldson , 915 F.2d 612, 615 (10th Cir. 1990). A minor participant is defin ed as “any participant who is less culpable than most other participants, but who se role could not be described as minimal.” Id. ; U.S.S.G. § 3B1.2, comment n.3; see United States v. Smith , 131 F.3d 1392, 1399 (10th Cir. 1997), cert. denied 118 S. Ct. 1109 (1998). Examples of minimal participants include “someone who playedno other role in a very large drug smuggling operation than to offload part of a single marihuana shipment, or in a case where an individual was recruited as a co urier for a single smuggling transaction involving a small amount of drugs.” U. S.S.G. § 3B1.2, comment n.2. As described in the PSR, defendant was at least as culpable as his codefendants. In particular, he personally deliver ed the methamphetamine to the undercover agent and accepted payment. In addition , he assisted Mendez-Gomez-8-

in making telephone calls to secure the additional two pounds of methamphetamine. Defendant did not controvert thes e facts and did not present any evidence of his own at sentencing. Defendant h as failed to satisfy his burden of proving by a preponderance of the evidence that he was entitled to an adjustment for minor participation. Smith , 131 F.3d at 1399. The judgment of the district court is AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge