APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D. Ct. No. 1:07-CR-00283-REB -1).
The opinion of the court was delivered by: Tacha, Circuit Judge.
Before TACHA, ANDERSON, and BRISCOE, Circuit Judges.
Lionel Ferrel was indicted on and pleaded guilty pursuant to a plea agreement to one count of conspiracy to possess with intent to distribute fifty grams or more of a substance containing a detectable amount of methamphetamine, and a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A). He was sentenced to 108 months' imprisonment. On appeal, he challenges the validity of his guilty plea and sentence, arguing that the district court: (1) failed to inform him during the Rule 11 plea colloquy of the drug-quantity element of the offense-namely, that the purpose of the conspiracy was to possess with intent to distribute at least fifty grams of methamphetamine; (2) misinformed him during the Rule 11 plea colloquy of the statutory maximum sentence; and (3) should have submitted to a jury the question of the quantity and purity of the methamphetamine involved in the offense. We have jurisdiction under 21 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we AFFIRM.
In December 2006, Detective Jorge Villegas with the Denver North Metro Task Force began investigating Mr. Ferrel's involvement with drug trafficking. From December 2006 through January 2007, he and other officials directed four controlled purchases of methamphetamine from Mr. Ferrel by a confidential informant ("CI"). During this time, Mr. Ferrel also provided the CI with a small sample representative of methamphetamine being produced by Mr. Ferrel's associate, a man named "Guero," in California. The total amount of methamphetamine Mr. Ferrel provided the CI through these transactions was 110.7 grams.
In February 2007, Mr. Ferrel instructed the CI to fly to California to assist Guero in transporting methamphetamine to Denver, Colorado. Mr. Ferrel told the CI that Guero had two pounds of methamphetamine but did not have a driver's license, so the CI should meet Guero in California and drive his vehicle loaded with the methamphetamine to Denver. The CI flew to California, but Guero insisted on driving. The vehicle was ultimately stopped by the California Highway Patrol, and a subsequent search uncovered 1457 grams of 97.6% pure (or "actual") methamphetamine.
That May, Mr. Ferrel sold 250 grams of cocaine to Detective Villegas. Two months later, Mr. Ferrel was charged in a two-count indictment with conspiracy to possess with intent to distribute fifty grams or more of a substance containing a detectable amount of methamphetamine and a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A) (Count One), and distribution of a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Two).
Mr. Ferrel pleaded guilty to Count One. Using the Drug Equivalency Tables set forth in the 2007 United States Sentencing Guidelines Manual ("Guidelines" or "U.S.S.G."), see U.S.S.G. § 2D1.1 cmt. n.10(E), the plea agreement outlined the government's position on sentencing. According to the government, the 110.7 grams of methamphetamine that Mr. Ferrel provided to the CI equated to 221.4 kilograms of marijuana; the 1457 grams of actual methamphetamine found in Guero's vehicle equated to 29,140 kilograms of marijuana; and the 250 grams of cocaine that Mr. Ferrel sold to Detective Villegas equated to 50 kilograms of marijuana. The resultant 29,411.4 kilograms of marijuana equivalent produced a base offense level of 36. Mr. Ferrel received a 2-level decrease under the "safety valve," see U.S.S.G. §§ 2D1.1(b)(11), 5C1.2, and a 3-level decrease for acceptance of responsibility, see id. § 3E1.1. The total offense level was therefore 31,which, combined with Mr. Ferrel's criminal history category of I, produced an advisory Guidelines sentence of 108--135 months. The government recommended a 108-month sentence.
In the plea agreement, Mr. Ferrel admitted to his conduct involving the 110.7 grams of methamphetamine and the 250 grams of cocaine, but he denied responsibility for the 1457 grams of actual methamphetamine found in Guero's vehicle. Instead, in his objections to the PSR and in other pre-sentencing filings, Mr. Ferrel argued that he believed only two pounds (or approximately 896 grams) of a less-pure methamphetamine mixture would be delivered to him. Under the Guidelines, conduct involving methamphetamine mixture results in a lower sentence than conduct involving actual methamphetamine.*fn1 Thus, Mr. Ferrel calculated his sentence according to the following marijuana equivalents: the 116.3 grams of methamphetamine*fn2 equated to 232.6 kilograms of marijuana; the 896 grams of methamphetamine equated to 1792 kilograms of marijuana; and the 250 grams of cocaine equated to 50 kilograms of marijuana. The resultant 2074.6 kilograms of marijuana equivalent produced a base offense level of 32.
After the safety-valve and acceptance-of-responsibility reductions, the total offense level was 27 and the Guidelines range was 70--87 months.
At sentencing, the district court agreed with the government and found by a preponderance of the evidence that Mr. Ferrel was responsible for the 1457 grams of actual methamphetamine as relevant conduct. See U.S.S.G. § 1B1.1. Accordingly, the court imposed a 108-month sentence, the lowest sentence within the applicable Guidelines range.