               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 99-50998
                       _____________________



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

RICHARD CHRIS WILLIAMS,

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
                    USDC No. A-98-CR-168-1-JN
_________________________________________________________________
                         August 10, 2000

Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Richard Williams appeals his conviction and sentence on one

count of possession with intent to distribute crack cocaine and one

count of using or carrying a firearm during and in relation to a

drug trafficking offense.   Finding no error, we affirm.

                                 I

     Dino Warick was a police informant.       In July 1998, he told

Officer Russell Bleise, a member of the Capital Area Narcotics Task


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Force, that Williams was a drug dealer.     Bleise then had Warick

telephone Williams to arrange to buy crack cocaine.     During the

call, Bleise testified that he “wanted to pick up six” without

specifying exactly what that meant.      Bleise and Williams then

arranged to meet at an auto supply shop.

     The police set up surveillance near the supply shop.     When

Williams arrived, the police saw another man in the car with him.

The car entered the parking lot, drove around the lot, exited, and

then drove around the block.     Williams then pulled up next to

another vehicle, got out of the car, and went to the driver’s

window of the other car.

     Deputy Sheriff Gary Haston, a member of the surveillance team,

had followed Williams from the auto shop.   When he saw Williams by

the driver’s window of the other car, Haston turned on his lights

and got out of his own car.   Haston then patted Williams down and

detected something that felt like plastic and a lump of money in

Williams’s pocket.    When Haston reached for Williams’s pocket,

Williams ran.

     During the ensuing chase, Haston saw Williams throw two items

away.   The first was a cellular phone, and the second was a couple

of plastic bags containing about 100 crack cocaine rocks and a

crack “cookie.”   The total amount of crack was about two ounces.




                                 2
     Police later found a gun under the driver’s seat in Williams’s

car. Williams told police that the gun belonged to him, and police

did not check it for fingerprints.

     Williams was later charged with possession with intent to

distribute crack cocaine and with carrying a firearm during and in

relation to a drug trafficking crime.         At trial, Bleise testified

about   several    out-of-court      statements    by   Warick.       One   such

statement was Warick’s telling Bleise that Williams was a drug

dealer. Defense counsel did not object to this testimony.                Bleise

also testified that Warick had asked for “six” during Warick’s

phone conversation with Williams setting up the drug deal, and that

Warick had asked Williams whether Williams would meet him at the

auto supply shop.       Defense counsel did object to this part of

Bleise’s testimony but was overruled.

     Williams took the stand in his own defense.              He admitted that

Warick had called him and asked for “six,” but he maintained that

he had not known what this meant.          He denied possessing drugs or

the gun.    Williams also presented testimony by the car’s other

occupant, Harvey Randall, who claimed that the gun was Randall’s.

     Williams     was   ultimately    convicted.        The   court   sentenced

Williams by attributing six ounces of crack cocaine to him in

determining his base offense level, rather than the two grams that




                                       3
police found in the plastic bags.         Williams now appeals both his

conviction and his sentence.

                                    II

     On appeal, Williams first challenges admission of Bleise’s

statement that Williams was a drug dealer.            Because there was no

objection, we review for plain error.        United States v. Olano, 507

U.S. 725, 731-34, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993).

We find none here.          The erroneous admission of this hearsay

statement did not “seriously affect the fairness, integrity or

public reputation of the judicial process.”              United States v.

Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994).                   There was

substantial evidence at trial presented suggesting that Williams

was a willing participant in drug dealing, so any error does not

rise to the gravity required for plain error reversal.

     Second,   Williams      challenges    the   admission    of    Bleise’s

testimony about Warick’s side of the conversation with Williams.

Defense counsel did object to this testimony, which means that if

we determine the admission was an erroneous abuse of discretion,

United States v. Dickey, 102 F.3d 157, 163 (5th Cir. 1996), we must

determine   whether   the   error   was   harmless.      United    States   v.

Rodriguez, 15 F.3d 408, 415 n.8 (5th Cir. 1994).          Williams asserts

that admission of Warick’s statement that he wanted to “pick up

six” was erroneous as inadmissible hearsay.            We disagree because




                                     4
this was not hearsay.       This was not a statement offered for the

truth of the matter asserted, that is, that Warick wanted six

ounces of crack cocaine.          Fed. R. Evid. 801.        The evidence was

instead entered to demonstrate the circumstances that led the

meeting at the auto supply shop.               Williams also asserts that

testimony   about   Warick’s      question   to   Williams    concerning       the

location of their meeting was similarly erroneously admitted.                  But

this was a question, not a statement that asserted anything.                   See

United    States    v.   Lewis,     902   F.2d     1176,    1179   (5th        Cir.

1990)(explaining that a “statement” for hearsay purposes is an oral

or    written   assertion   or     nonverbal      conduct    intended     as    an

assertion). Thus, the district court properly overruled these

hearsay objections.

      Third, Williams contends that the evidence was insufficient to

convict him of firearm possession “in relation to” the underlying

drug trafficking offense.        But because his counsel failed to renew

a Rule 29 motion for acquittal at the close of evidence, we will

reverse only if we find “a manifest miscarriage of justice.”

United States v. Galvan, 949 F.2d 777, 783 (5th Cir. 1991).                “Such

a miscarriage would exist only if the record is devoid of evidence

pointing to guilt, or . . . [if] the evidence on a key element of

the offense was so tenuous that a conviction would be shocking.”

Id.   That is not the case here.




                                      5
     For a firearm possession to be “in relation to” the underlying

offense, it “at least must ‘facilitate[], or ha[ve] the potential

of facilitating’” that offense.       Smith v. United States, 508 U.S.

223, 237 (1993).   The gun in this case was under Williams’s seat in

the car from which he was dealing drugs.     A gun this accessible has

the potential to facilitate drug dealing, either for purposes of

self-protection or to obtain payment from those who hesitate to

hand over their money.      There was certainly no miscarriage of

justice on this point.

     Fourth, Williams challenges his sentence based on six ounces

of crack cocaine, even though only two ounces were found.            A

district court’s findings regarding drug quantity are reviewed for

clear error.    United States v. Vine, 62 F.3d 107, 109 (5th Cir.

1995).    We find no such error here.

     Application Note 12 to § 2D1.1 of the Sentencing Guidelines

provides that in a reverse sting operation, the quantity of drugs

for sentencing purposes is the agreed upon quantity, not the

quantity actually delivered.    This is true unless the defendant

establishes that he or she did not intend to provide, or was not

capable of providing, the agreed-upon quantity.      U.S.S.G. § 2D1.1,

comment.

     In this case, there is ample evidence supporting the six-ounce

amount.    The presentencing report states that Warick ordinarily




                                  6
purchased crack from Williams in six-ounce increments.               See United

States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996)(holding that

a PSR ordinarily bears sufficient indicia of reliability that it

may   be   relied   upon   by   the   district    court   in    making    factual

determinations, and the burden is on the defendant to demonstrate

that the PSR information is untrue).             Moreover, Williams himself

admitted on the stand that Warick had asked for “six.”                   The fact

that Williams failed in supplying the remaining four ounces is not

evidence that he had not intended to sell a total of six ounces or

that he would not be able to do so in the near future.               See Vine,

62 F.3d at 110.     Williams put on no testimony of his own to rebut

this evidence.      Thus, he has failed to meet his burden on this

point.

                                      III

      For the reasons stated herein, the conviction is

                                                               A F F I R M E D.




                                       7
