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United States v. Manuel Jose Estrada-Molina, A/K/A Pedro Alvarez, A/K/A Julian Montoya, 931 F.2d 964, 1st Cir. (1991)
United States v. Manuel Jose Estrada-Molina, A/K/A Pedro Alvarez, A/K/A Julian Montoya, 931 F.2d 964, 1st Cir. (1991)
2d 964
conversation, however, did not clearly show whether the defendants agreed to
sell one or two kilograms. Giving Estrada-Molina "the benefit of the doubt," the
court resolved to count only one kilogram toward the sentence. The resulting
guideline range was 51 to 63 months of imprisonment; a sentence of 55 months
was imposed, along with a 24 month concurrent term for the reentry count.
Estrada-Molina appeals his sentence.
2
We note, although the issue was not raised on appeal, that there is no question
that the district court properly concluded that a quantity of drugs involved in a
dismissed count should be included in calculating the sentence provided that
the activities involved "the same course of conduct or common scheme or
plan." U.S.S.G. Sec. 1B1.3(a)(2). It is of no consequence that the disputed
quantity of drugs in this case was encompassed by a count dismissed by the
government as part of a plea agreement. See United States v. Mak, 926 F.2d
112, 113 (1st Cir.1991); United States v. Blanco, 888 F.2d 907, 909 (1st
Cir.1989); United States v. Bedoya, 878 F.2d 73, 75-76 (2d Cir.1989).
U.S.S.G. Sec. 2D1.4, comment. (n. 1). Although this reference is to counts of
U.S.S.G. Sec. 2D1.4, comment. (n. 1). Although this reference is to counts of
conviction, we see no reason why the same principles should not apply to
amounts included in sentencing under the "relevant conduct" provisions of Sec.
1B1.3(a)(2). See Bradley, 917 F.2d at 604. Thus the question becomes whether
the court's finding that Estrada-Molina intended to produce and was reasonably
capable of producing the additional kilogram is supported by sufficient
evidence to pass the clearly erroneous standard of review. Id. at 605-06. A
preponderance of the evidence is sufficient for sentencing purposes. United
States v. Rodriguez-Cardona, 924 F.2d 1148, 1155 (1st Cir.1991).