#### UNITED STATES of America, Appellee, v. Francisco PERALTA, Defendant-Appellant.

No. 11-3961-cr.

United States Court of Appeals, Second Circuit.

Nov. 18, 2012.

Louis M. Freeman, Freeman, Nooter & Ginsberg, New York, NY, for Appellant.

Jason B. Smith, Assistant United States Attorney, (Brent S. Wible, Katherine Polk' Failla, Assistant United States Attorneys), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Present: PIERRE N. LEVAL, ROSEMARY S. POOLER, and BARRINGTON D. PARKER, Circuit Judges.

SUMMARY ORDER

Defendant, Francisco Peralta (“Peralta”) was charged with Count One of conspiracy to distribute and possess with the intent to distribute at least five kilograms of cocaine, in violation of Title 21, United States Code, Section 846; Count Two of attempting to distribute and possess with intent to distribute at least 500 grams of cocaine on' October 8, 2008, in violation of Title 21, United States Code, Section 846; and Count Three of attempting to distribute and possess with intent to distribute at least 500 grams of cocaine from October 8, 2008 through January 28, 2009, in violation of Title 21, United States Code, Section 846. The jury found Peralta guilty of Counts One and Three but not Count Two and returned a special verdict as to Count One, finding that the conspiracy involved at least 500 grams, but not five kilograms or more of cocaine. Petitioner now appeals from his September 16, 2011 sentencing by Judge Kevin Castel in the Southern District of New York. On appeal, appellant asserts that the sentence was improper because the district court inappropriately double-counted drug amounts when it aggregated the amounts involved in the October 8, 2008 and January 28, 2009 attempted transactions. Peralta contends the two kilograms involved in the October 8, 2008 attempted transaction must be deemed part of the four kilograms involved in the January 2009 attempted transaction. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

*94A district court’s determination of the relevant drug quantity for sentencing purposes is a factual finding this Court reviews for clear error. *United States v. Jones,*531 F.3d 163, 176 (2d Cir.2008).

“Where there is no drug seizure or the amount seized does not reflect the scale of the offense,” the Guidelines direct courts to “approximate” the quantity of the controlled substance. U.S.S.G. Section 2D1.1. This Court has found that “direct or circumstantial” evidence may be used to support a district court’s preponderance determination as to “drug quantity.” *United States v. Jones,*531 F.3d 163, 175 (2d Cir.2008). Defendant contends that the drugs involved in the aborted October 8 transaction should be deemed the same drugs as were involved in the January 28 transaction, so that the court erred in adding the two quantities together. *See e.g. United States v. Spencer,*4 F.3d 115, 123 (2d Cir.1993) (remanding case for resen-tencing where district court inappropriately double counted the same amount of drugs by adding the amount produced with the amount distributed where there was no evidence defendant distributed any drugs other than those he manufactured). We disagree.

We should affirm the district judge’s sentence because there was no double-counting. Here, the evidence showed that the drugs counted from the October 8, 2008 transaction were distinguishable from the drugs offered for sale in the January 28, 2009 transaction, being (1) a different amount of drugs, (2) from a different drug dealer, and (3) offered for sale nearly three months prior to the January transaction. Therefore, unlike in *Spencer,*there was no double-counting here. *Spencer,*4 F.3d at 123. The court appropriately considered the two transactions separate and distinct from one another.

Accordingly, the judgment of the district court hereby is AFFIRMED.