F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 14 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-2059
                                                   (D.C. No. CR-99-555-MV)
    ARMANDO GARCIA-NUNEZ,                                  (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before McKAY, PORFILIO, and ANDERSON, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Appellant Armando Garcia-Nunez was one of a group of eight Mexican

citizens captured by the border patrol adjacent to fifteen backpacks filled with



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
marijuana which the group was carrying from Mexico into the United States. 1

Appellant pled guilty to violation of 21 U.S.C. § 841(b)(1)(B) (possession with

intent to distribute more than 100 kilograms of marijuana) and 21 U.S.C. § 846

(conspiracy to violate 21 U.S.C. § 841(b)(1)(B)). He was sentenced to

twenty-four months’ imprisonment, followed by three years’ supervised release.

He appeals his sentence based on USSG § 1B1.3, application note 2(c)(8) (based

on the facts of a case, the district court is permitted to find that an individual

captured in a group was pursuing individual criminal conduct rather than carrying

out part of a joint criminal activity). We affirm.

      Mr. Garcia-Nunez was sentenced based on the total aggregate of marijuana

from all fifteen backpacks, approximately 306 kilograms. He argues on appeal

that the district court declined to recognize that it had authority, under USSG

§1B1.3, application note 2(c)(8), to hold Mr. Garcia-Nunez liable for only

one-eighth or one-fifteenth of the total quantity of marijuana captured. The

transcript at the sentencing hearing does not present a clear record on whether the

district court ruled that it does or that it does not have authority under

USSG § 1B1.3, application note 2(c)(8), to sentence an individual co-defendant

only for the amount of drugs for which he is individually responsible, based on


1
      Apparently seven other individuals who had been with the group, and who
had been carrying backpacks, ran away prior to the capture of the eight
individuals who were arrested together.

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evidence before it. 2 However, our determination in this matter does not turn on

the district court’s interpretation of its authority under this portion of the

Sentencing Guidelines, but rather rests on the fact that there is no evidence in the

record that defendant could establish that he was proceeding in a discrete criminal

activity.

       The government urges us to dismiss this appeal for lack of jurisdiction,

under the general rule that a discretionary refusal to depart from the applicable

Guideline range is not subject to appellate review. See United States v. Fortier,

, 1231 (10th Cir. 1999). We find the government’s argument to be

inapposite. Appellant is not urging downward departure, but rather seeks

reinterpretation of the underlying situation upon which his sentence is based,

sentencing him as an individual actor rather than as part of a jointly undertaken

criminal activity.




2
        Significantly, upon first being presented with the legal argument, the
district court stated, “I will acknowledge that that’s what the guidelines say, and I
find it not to be applicable . And now you can take that up, correct?”     Tr.
Sentencing Hearing, R. Vol. III at 5 (emphasis added). Defense counsel then
prompted the court, “Judge, if you - - ” 

the court responded, “What
language do I need to say?” 

replied, “If you make a finding
that you don’t think that gives you the discretion to treat it as separate conduct
then that gives me the - - ” 

the court responded, “Then I’ll make
that finding, that I don’t find that it gives me the discretion to make it separate
conduct, it doesn’t do that. Good enough?” 

decline to disturb the district court sentence based on the record before

us. The record reveals that the fifteen homemade backpacks were all similar in

construction and appearance and that each contained thirty-five to forty-five

pounds of marijuana. See R. Supp. Vol. II at 8, 9. Appellant did not challenge

the presentence report which stated that one of his co-defendants told authorities

that the members the group were to deliver the marijuana to a point on the

highway for someone else to pick up, and that they were to be paid $1,000 apiece

upon their return to Casas Grandes, Mexico. See R. Vol. II at 5 ¶ 15. A similar

description of the situation was presented by the government at the plea hearing,

without objection by appellant. See R. Supp. Vol. I at 18-19. Appellant’s defense

counsel did not offer any evidence at the sentencing hearing to support his

theoretical contention for sentencing purposes that appellant was engaged in a

separate criminal activity.

      This court can affirm the district court on grounds existing in the record,

provided appellant has had a fair opportunity to develop the record. See United

States v. Sandoval, 

, 542 n.6 (10th Cir. 1994); Seibert v. Oklahoma

ex rel. Univ. of Okla. Health Sciences Ctr., 

, 597 (10th Cir. 1989).




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Based on the record before us, there is no evidence of discrete individual criminal

action by defendant. The judgment of the United States District Court for the

District of New Mexico is AFFIRMED.



                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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