APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Douglas P. Woodlock, U.S. District Judge.
Mark E. Howard for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before Lynch, Chief Judge, Ripple[*] and Selya, Circuit Judges.
RIPPLE, Circuit Judge.
Wilfredo Melendez was charged with conspiracy to distribute cocaine, in violation of 21 U.S.C. § § 841(a)(1) and 846, and possession of a firearm in furtherance of a drug offense, in violation of 18 U.S.C. § 924(c)(1)(A). Mr. Melendez pleaded not guilty, and the case was tried to a jury. During its deliberations, the jury posed two questions to the district court, which the court answered after consulting with the parties. The jury found Mr. Melendez guilty of conspiracy to distribute five kilograms or more of cocaine, but not guilty of possession of a firearm in furtherance of a drug trafficking crime. The district court sentenced Mr. Melendez to 144 months' imprisonment, a sentence below that suggested by the United States Sentencing Guidelines. Mr. Melendez now appeals; he contends that the district court's responses to the jury's questions, as well as its determinations during sentencing, were erroneous. For the reasons set forth in this opinion, we now affirm the judgment of the district court.
Mr. Melendez's arrest followed a reverse sting operation conducted by the Drug Enforcement Administration (" DEA" ). Agents posed as members of a Colombian drug-trafficking organization. One of the undercover agents contacted Rafael Guzman, the target of the investigation. Guzman
expressed an interest in buying kilogram quantities of cocaine, and the agent agreed to sell him five kilograms. The terms of their bargain were that Guzman would receive five kilograms of cocaine; he would pay for three kilograms at the time of the exchange and for the remaining two kilograms two weeks later.
Mr. Melendez had approached Guzman in search of a cocaine supplier and, although he was not involved in any of the communications between Guzman and the DEA, agreed to supply the money to purchase the cocaine from the undercover agent. He planned to distribute the cocaine after the deal.
The DEA was unaware of Mr. Melendez's involvement until the day of the sting operation. Before meeting Guzman for the transfer of money and drugs, the undercover agent called him and asked if he was alone. Guzman responded that someone was with him. Thereafter, Guzman arrived with Mr. Melendez. Guzman and the undercover agent got out of their vehicles and conversed. Guzman indicated that Mr. Melendez was working with him in the drug deal and that he was providing the money to purchase the cocaine. Because Guzman secretly was profiting from the deal, he asked the undercover agent not to tell Mr. Melendez the actual price of the cocaine.
The undercover agent and Guzman then entered Guzman's car, where Mr. Melendez already was seated. The agent confirmed that he would deliver " five for the three. You owe me two."  Mr. Melendez asked to " check [the cocaine] out" and inquired of the undercover agent whether he and his drug-trafficking organization typically conducted their drug deals in public parking lots. The agent, pretending to call the man who would deliver the cocaine, signaled nearby law enforcement agents to arrest the men. Those agents converged on the vehicle and arrested Guzman and Mr. Melendez. The agents seized two firearms from the center front console of the vehicle and approximately $92,000 in cash, wrapped in rubber bands, from a laptop bag.
The Government subsequently charged Mr. Melendez with conspiring to distribute over five kilograms of cocaine and with possession of a firearm in furtherance of a drug offense. The jury returned a verdict of guilty on the drug offense and of not guilty of the firearm offense. After sentencing, Mr. Melendez timely filed a notice of appeal.