                      United States Court of Appeals,

                             Eleventh Circuit.

               Nos. 94-9389, 94-9394, 94-9398 and 95-8140.

              UNITED STATES of America, Plaintiff-Appellee,

                                     v.

              Mario Alberto AGIS-MEZA, Defendant-Appellant.

              UNITED STATES of America, Plaintiff-Appellee,

                                     v.

                 Bulmaro AGIS-MEZA, Defendant-Appellant.

              UNITED STATES of America, Plaintiff-Appellee,

                                     v.

               Jose Alfredo NEGRETE, Defendant-Appellant.

              UNITED STATES of America, Plaintiff-Appellee,

                                     v.

  Moises LOPEZ-PONCE, a.k.a. Moises Ponce Lopez, a.k.a. Antonio
Jose Rodriguez, Defendant-Appellant.

                              Nov. 20, 1996.

Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-531-5), Orinda D. Evans, Judge.

Before BARKETT, Circuit Judge, and DYER and HILL, Senior Circuit
Judges.

     DYER, Senior Circuit Judge:

     The sole issue we consider in this appeal is whether the

District Court erred in sentencing Defendants Mario Agis-Meza,

Bulmaro Agis-Meza, and Jose Negrete by attributing a quantity of

drugs    to    each   defendant   through   extrapolating   kilograms   of
marijuana from cash and empty wrappers seized at a "stash" house.1

     1
      Several other issues have been raised in this appeal.
Mario Agis-Meza and Bulmaro Agis-Meza appeal the district court's
In essence, the District Court double counted the quantity of

marijuana by finding that the wrappers and the cash represented two

separate illegal transactions.           Because a preponderance of the

evidence does not support that finding, we vacate the sentences.

                  I. PROCEDURAL AND FACTUAL BACKGROUND

     This      case   began   when   Emery   Worldwide      Freight   office   in

Brownsville, Texas alerted United States Customs to a suspicious

package addressed for delivery in Georgia.                 In Emery's Atlanta

office,    a    search    revealed   that    the    package    contained   about

seventy-eight pounds of marijuana.           The package was re-sealed and

prepared    for   a   controlled     delivery      to   1806   Crestwood   Drive,

Acworth, Georgia, by a local narcotics unit. On the first delivery

attempt, the agent left a notice for the addressee to contact

Emery's office.          On the second attempt, Donald Bourque met the

agents at the house and accepted delivery of the package, whereupon

he was arrested.         Agents found a room key to a local Red Roof Inn

motel in Bourque's pocket.

     After his arrest, Bourque told the agents that a person known

to him as "Compadre" (later identified as Jose Negrete), who drove

a burgundy Cadillac, had paid him $1,000 and dropped him off at


decision to enhance their sentences for constructive possession
of a firearm for purposes of U.S.S.G. § 2D1.1(b)(1) and denial of
relief from the mandatory minimum sentence pursuant to U.S.S.G.
§§ 5C1.2(2) and (5). Jose Negrete argues that the enhancement of
his sentence for his role in the offense was based on
insufficient evidence. Moises Lopez-Ponce asserts the district
court erred in failing to reduce his sentence for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1, his "minor" or
"minimal" role pursuant to § 3B1.2, and in enhancing his sentence
for obstruction pursuant to U.S.S.G. § 3C1.1. Our review of the
record persuades us that the district court did not err and we
therefore summarily affirm the court's disposition of these
issues. See Eleventh Cir.R. 36-1.
1806 Crestwood Drive with instructions to wait for the delivery of

a package.     Bourque was told that "Augusto" would return for him.

The   agents   proceeded         to   the   Red     Roof   Inn    where    they   found

"Augusto," a/k/a Ariosto Cano, and a copy of the Emery Worldwide

shipping order relating to the drug package.                     They also found in

Cano's possession a piece of paper with Negrete's digital pager

number.

      Surveillance agents picked up the burgundy Cadillac at 1803

May Glen Court, in the same subdivision where the controlled

delivery was made.           They followed and eventually stopped the

vehicle. The occupants were Jose Negrete, Mario Agis-Meza, Bulmaro

Agis-Meza,     and    Negrete's       wife.       During    a    search    the    agents

recovered cash, blank money orders, and documents identifying

houses    owned      by   Jose    Negrete     and    his   wife    in     the    Atlanta

metropolitan area located at 1806 Crestwood Drive, 1803 May Glen

Court, 1817 Hickory Creek Court, and 4072 Singletree Place.                        Jose

Negrete admitted that these properties were purchased as part of

the conspiracy to store marijuana, that marijuana was stored at his

house, and that his role in the conspiracy was to provide the

properties and to assist the other conspirators at their request.

Negrete stated also that this was the first delivery to his house,

for which he was paid $1,000;               on previous occasions Mario Agis-

Meza and Bulmaro Agis-Meza made deliveries to either a hotel or

motel.

      Agents searched the other three properties owned by Jose

Negrete and his wife.            At 1803 May Glen Court agents found 111

pounds of marijuana packaged in twenty-eight bricks, eighty-nine
empty plastic wrappers with marijuana residue, cash totalling

$362,950,2 and four firearms.          A search at 4072 Singletree Place

recovered another ninety-two pounds of marijuana.

     A grand jury returned an indictment charging Jose Negrete,

Mario Agis-Meza, and Bulmaro Agis-Meza with conspiracy to possess

marijuana, in violation of 21 U.S.C. § 846, and possession of

marijuana, in violation of 21 U.S.C. § 841.             The indictment also

charged that Jose Negrete possessed a machine gun, in violation of

18 U.S.C. § 922(o), and used and carried firearms during and in

relation to the drug conspiracy count, in violation of 18 U.S.C. §

924(c).       Each defendant pled guilty to the drug conspiracy count

and all remaining counts were dismissed.

         At    sentencing   the    district   court   found   that   the   empty

wrappers with marijuana residue and the $362,950 did not represent

a single marijuana transaction.           The court adopted the probation

officer's calculation of the weight of marijuana represented by the

empty wrappers and the conversion of cash to a kilogram equivalent,

attributing 456 kilograms of marijuana to Jose Negrete, and 381

kilograms of marijuana to Mario Agis-Meza and Bulmaro Agis-Meza

pursuant to U.S.S.G. § 2D1.1.            We review the district court's

determination of the quantity of drugs for clear error.                    United

States v. Beasley, 2 F.3d 1551, 1561 (11th Cir.1993), cert. denied,

--- U.S. ----, 114 S.Ct. 2751, 129 L.Ed.2d 869 (1994).

                                  II. DISCUSSION


     2
      According to the Presentence Investigation Report ("PSR"),
the eighty-nine wrappers and the $362,950 represented
approximately 161.48 and 170 kilograms of marijuana,
respectively.
      A sentencing court must attribute to a defendant all the

drugs foreseeably distributed pursuant to a common scheme of which

the defendant's offense of conviction is a part.       United States v.

Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995).         To determine the

quantity of drugs attributable to a particular defendant, the

sentencing court should make findings of fact,        id., which often

begins with a review of the PSR.        When a defendant objects to a

factual finding that is to be used as a basis for sentencing, the

government bears the burden to establish the disputed fact by a

preponderance of the evidence.        Id.   See also United States v.

Andrews, 953 F.2d 1312, 1319 (11th Cir.), cert. denied, 505 U.S.

1210, 1227, 112 S.Ct. 3007, 3008, 3048, 120 L.Ed.2d 882, 915 (1992)

("Due process is satisfied when relevant factors in a sentencing

hearing are established by a preponderance of the evidence....")

and United States v. Patrick, 983 F.2d 206, 208 (11th Cir.1993)

("The burden of persuasion and production ... falls upon the

government as a matter of due process to establish ... each

aggravating factor upon which a harsher sentence is to be based.).

The preponderance of evidence is a relaxed evidentiary standard,

however, it does not grant the court a license to sentence a

defendant in the absence of sufficient evidence when that defendant

has properly objected to a factual conclusion.        Lawrence, 47 F.3d

at 1567.

     At sentencing the Defendants objected to their base offense

levels,    asserting   that   the   probation   officer's   calculations

resulted in double counting because it was reasonable to infer that

the cash represented payment for the marijuana that had been
contained in the empty packages.            The government therefore was

required to bring forth evidence to support the position that the

cash and wrappers represented two separate transactions.            We thus

examine whether the district court clearly erred in finding that

the government proved by a preponderance of the evidence that the

$362,950 was not a payment for the marijuana that had been packaged

in the eighty-nine wrappers.

     The district court apparently based its decision to adopt the

probation officer's calculations on logic rather than evidence. At

the sentencing hearing the court stated, "The amounts that the

probation officer has set out in the presentence report are a

snapshot of the amounts that were captured on one day, the day of

Mr. Negrete's arrest, and I just don't think it's logical to think

that this was the sum total of marijuana that was handled by this

group."     The district court did not point to any evidence from

which we can even infer that the cash and the marijuana originally

packaged    in    the   eighty-nine   wrappers   derived    from   separate

transactions.       The PSR does not support the district court's

conclusion either.      The probation officer wrote, "If the currency

is used to represent the sale of approximately 170 kilograms of

marijuana and was found in close proximity to the empty wrappers,

and the money is from the sale of the marijuana that came out of

the wrappers, the correct inference to be drawn is that the

currency came from the sale of the marijuana that was previously

contained    in   the   wrappers."    The   phrasing   of   this   statement

indicates the probation officer did not have evidence from which to

draw a conclusion either way.
     Nevertheless, the government contends the record supports the

district court's finding because Jose Negrete admitted that more

than one delivery of marijuana had been made to the Atlanta area,

and that this particular delivery was the first one to his house.

These   admissions   do   not   prove   that   the   cash   seized   at   1806

Crestwood Drive represented payment for marijuana other than that

which was contained in the specific residue-laden wrappers seized

at that same address.       It is just as reasonable to infer from

Negrete's admissions that the $362,950 was received as payment for

those eighty-nine wrappers.

        Finding nothing more in the record, we hold the preponderance

of evidence does not support the district court's determination of

the quantity of drugs attributable to the defendants for sentencing

purposes.

                            III. CONCLUSION

     For the foregoing reasons, we VACATE the sentences of Jose

Negrete, Mario Agis-Meza, and Bulmaro Agis-Meza and REMAND their

cases to the district court for resentencing.
