Appeal from the United States District Court for the Western District of Arkansas.
The opinion of the court was delivered by: Benton, Circuit Judge.
Submitted: September 23, 2010
Before LOKEN, HANSEN, and BENTON, Circuit Judges.
Jil Antonio Resinos pled guilty to one of five counts of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court*fn1 sentenced him to 120 months in prison, the mandatory minimum sentence based on its drug quantity calculation. He appeals, arguing that the court's calculation improperly aggregated amounts of meth derived from counts dismissed pursuant to the plea agreement. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
An investigation of Resinos began on June 7, 2009, when a confidential informant (CI) contacted the Siloam Springs police, saying that he or she could purchase meth from Resinos. Resinos sold meth to the CI in six controlled purchases:
* June 9: 3.28 grams of a mixture of meth.
* June 10: 9.43 grams of actual meth.
* June 19: 9.3 grams of actual meth.
* June 29: 1.3 grams of actual meth.
* July 7: 25.3 grams of actual meth.
* August 12: 13.8 grams of actual meth.
The indictment charged five counts of possession with intent to distribute meth for the sales on June 9, 10, 19, 29, and July 7. Count five charged Resinos with distribution on July 7. Resinos pled guilty only to count five; in exchange, the government dismissed the remaining counts.
Calculating the guideline range, the presentence investigation report (PSR) held Resinos accountable for more than 50 grams of actual meth by aggregating amounts from the dismissed counts as "relevant conduct," conduct that was part of the same course of conduct or common scheme or plan as the offense of conviction. See U.S.S.G. § 1B1.3(a)(1)(A). The PSR thus calculated a total offense level of 29 that, with a criminal history of Category I, produced a guideline range of 87 to 108 months. The PSR determined, however, that the (same) aggregated quantity of meth used in calculating the offense level triggered a mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A)(viii).
The parties disputed whether the dismissed relevant conduct should be aggregated to trigger a mandatory minimum sentence. The district court applied § 841(b)(1)(A)(viii), sentencing Resinos to the mandatory minimum of 120 months. Resinos appeals. In reviewing for procedural error, such as an improper calculation of the advisory guidelines range, this court reviews de novo the district court's interpretation and application of the sentencing guidelines and statutes, and its fact-findings for clear error. Gall v. United States, 552 U.S. 38, ...