                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS           November 7, 2003
                       FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                            No. 03-50411
                          Summary Calendar



                     UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                               versus

                       JOHN DAVID VANWINKLE,

                                                  Defendant-Appellant.



          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. W-02-CR-161-ALL


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

          John David Vanwinkle (Vanwinkle) appeals his sentence for

distribution   of   pseudoephedrine     with   intent   to   manufacture

methamphetamine, a violation of 21 U.S.C. §§ 843(a)(7) and (d)(2).

Vanwinkle argues that the district court erred in applying the

U.S.S.G. § 2D1.12 cross reference, thereby holding him accountable




     *
      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this opinion should not be published and is not precedent except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.
                                   No.
                                   -2-

under   §   1B1.3   (Relevant    Conduct)   for   the   manufacturing     of

methamphetamine performed by others.

            Specifically,   Vanwinkle    contends   that   there   was   not

sufficient evidence presented to prove that he agreed to jointly

undertake the activity of manufacturing methamphetamine or that it

was reasonably foreseeable to him that the pseudoephedrine he sold

to the informant would be used to manufacture methamphetamine.

            Vanwinkle failed to present rebuttal evidence at the

sentencing hearing.     The facts in the PSR and testimony presented

at the hearing have an adequate evidentiary basis to support the

district court’s finding.       United States v. Puig-Infante, 19 F.3d

929, 942 (5th Cir. 1994).       Therefore, the district court did not

clearly err in holding Vanwinkle accountable under the relevant

conduct provision in the Guidelines for the manufacturing of

methamphetamine performed by others.        United States v. Cooper, 274

F.3d 230, 238 (5th Cir. 2001).

            AFFIRMED.




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