* This order and judgment is not binding precedent, e xcept under the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

### JUN 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DON E. McENTIRE,

Defendant-Appellant. No. 96-2299 (D.C. No. CIV-95-597-JC) (D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.

Appellant Don E. McEntire was convicted by a jury o f conspiracy and possession with intent to distribute marijuana. Th is court affirmed the conviction on direct appeal. See United States v. Benavidez , Nos. 89-2285, 89-2252, 89-2185, 89-2166, 89-2224, 89-2165, 89-2158 and 89- 2157, slip op. at 38 (10th Cir. Jan. 9, 1991). McEntire then filed a motion i n the district court for reduction1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- of sentence under 18 U.S.C. § 3582(c)(2), contendin g that amendment 439 to the United States Sentencing Guidelines (U.S.S.G.) supp orted such a reduction. McEntire argued that the amended definition of “rel evant conduct” in U.S.S.G. § 1B1.3 lowered the base offense level applicable to his part in the conspiracy. The district court denied the motion, and McEntire appe als. 1 Whether a change in the offense level of the U.S.S. G. is to be retroactively applied is left to the sound discretion of the dist rict court. See United States v. Dorrough , 84 F.3d 1309, 1311 (10th Cir. 1996). “Under the abuse of discretion standard we will not reverse a district court’s dec ision unless we have a definite and firm conviction that the lower court made a cle ar error of judgment or exceeded the bounds of permissible choice in the ci rcumstances.” Id. (quotations omitted). Our review of this matter reveals no abu se of discretion, and we affirm. McEntire, a pilot, admits that in late August 1987 he helped load approximately 600 pounds of marijuana into an airpl ane, and that on September 22, 1987, he flew approximately 750 pound s of marijuana into the United States illegally. McEntire contends that hi s only other connection to the conspiracy, either before or after this activity, w as his presence at a party in late2 18 U.S.C. § 3582(c)(2) provides:

in the case of a defendant who has been sentenced t o a term of imprisonment based on a sentencing range that has s ubsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issuedby the Sentencing Commission.

-3- November 1987 which was also attended by other memb ers of the conspiracy. Based on McEntire’s continued association with othe r conspirators as late as November 1987, the district court attributed to himresponsibility for distribution of 1,270.08 kilograms of marijuana and sentenced hi m accordingly. Under the terms of 18 U.S.C. § 3582(c), a sentencin g court may reduce a term of imprisonment after consideration of specifi c factors. 2 U.S.S.G. § 1B1.3 sets out the analysis for determining relevant cond uct. Amendment 439, effective November 1, 1992, added new examples in the application notes which McEntire argues should entitle him to a reduction in his sentence. Specifically, McEntire points to the examples in Application Note 2(c) whi ch address the “[r]equirement that the conduct of others be in furtherance of the jointly undertaken criminal activity and reasonably foreseeable” and also speakto the “scope of the criminal activity.” Example 3 states:-4-

Defendants H and I engaged in an ongoing marihuana importation conspiracy in which Defendant J was hired only to h elp off-load a single shipment. Defendants H, I, and J are includ ed in a single count charging conspiracy to import marihuana. Def endant J is accountable for the entire single shipment of marih uana he helped import under subsection (a)(1)(A) and any acts and omissions in furtherance of the importation of that shipment that were reasonably foreseeable . . . . He is not accountable for prio r or subsequent shipments of marihuana imported by Defendants H or I because those acts were not in furtherance of his jointly underta ken criminal activity (the importation of the single shipment of marihuana). Example 5 states: Defendant O knows about her boyfriend’s ongoing dru g-trafficking activity, but agrees to participate on only one occ asion by making a delivery for him at his request when he was ill. D efendant O is accountable under subsection (a)(1)(A) for the drug quantity involved on that one occasion. Defendant O is not accountab le for the other drug sales made by her boyfriend because those sale s were not in furtherance of her jointly undertaken criminal acti vity (i.e. , the one delivery). McEntire argues that his conduct was completely con sistent with these two examples in that he had already been replaced as th e pilot for the enterprise at the time of the November party, and that he “in no way facilitated or attempted to conceal the criminal activities of the other defend ants.” Br. of Appellant at 13. He contends, therefore, the district court erred in not reducing his base offense level. McEntire acknowledges that he did not affirmativelywithdraw from the conspiracy, a concession required by the determinat ion of this court on direct appeal. See Benavidez , slip op. at 33-34 (holding that McEntire’s presen ce-5-

during meetings with other co-conspirators during the month of November was sufficient evidence to support the trial court’s de termination that he remained a member of the conspiracy). He does argue, however, that the sentencing court erred in determining his relevant conduct within th e conspiracy. “[W]hen several defendants are convicted of conspir acy, the relevant conduct for purposes of sentencing is not necessari ly the same for every participant.” United States v. Torres , 53 F.3d 1129, 1143-44 (10th Cir. 1995) (quotations and citations omitted). “[T]he Guideli nes require examination of the scope of the defendant’s agreement to undertake joi nt activity and of the reasonable foreseeability of co-conspirators’ crimi nal conduct.” Id. at 1144 (quotation omitted). McEntire argues that the amou nts of marijuana flown into this country after he had been replaced as the sche me’s pilot were not within the scope of any activity he agreed to undertake with t he others. McEntire, however, does not provide this court with any trial transcri pt or even the presentence report by which we can judge the merit of that assertion. The most relevant evidence going to this issue is a portion of the presentence report and the rather disjointed argument of the prosecutor at the sentencing hearin g both reprinted in appellee’s brief. See Br. of Appellee at 3-4. The presentence report re putedly stated that McEntire was present at the location where a meeting took place at which arrangements were [made] for the importation of marijuana on Nov ember 19 and-6-

20, 1987. Further surveillance by Federal agents o n November 3, 1987, reflected that McEntire was with Dominquez atthe home of Phelps indicating continued association with codefe ndants involved in the offense. It is further noted that agents ob tained information from Phelps[’] trash on this date as to a marijuanashipment showing on going criminal conduct at the same time as the d efendant is associating with the codefendants. Id. at 3. Even assuming that Amendment 439 can be retroactive ly applied, a question we do not reach, we are unable to determin e from this brief excerpt the scope of McEntire’s agreement to participate in the conspiracy. Since McEntire challenges the district court’s factual finding reg arding the amount of marijuana attributable to him, “it is not unreasonable to exp ect [him] to have included in the record on appeal all evidence relevant to that find ing if he wishes to challenge it.” Rogers v. United States , 91 F.3d 1388, 1394 (10th Cir. 1996), cert. denied , 117 S. Ct. 1000 (1997). We will therefore not set aside t he finding of the district court concluding that McEntire’s relevant conduct include d the distribution of 1,270.08 kilograms of marijuana. Finally, we note that the district court mistakenly docketed McEntire’s motion in its civil docket as one brought under 28 U.S.C. § 2255. McEntire’s motion, however, was brought pursuant to 18 U.S.C. § 3582 and is considered a criminal matter. The district court is directed to correct both its civil docket, by removing the reference to this matter as a 28 U.S.C . § 2255 case, and to correct-7-

its criminal docket by including this case as a matter brought under 18 U.S.C. § 3582. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED, and this case is REMANDED to th e District Court for the limited purpose described in the preceeding paragraph.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge