                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 17, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-10833
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALEJANDRO AMAYA, also known as Alex Amaya, also
known as Gordo,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:04-CR-251-2
                      --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Alejandro Amaya appeals the sentence imposed in connection

with his guilty-plea conviction for conspiring to possess with

intent to distribute and to distribute more than five kilograms

of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1).        Amaya

argues that the district court erred in calculating the drug

quantities for which he was held responsible.   Amaya also argues

that the district court erred in denying him a two-level

reduction for a minor role in the drug conspiracy.


     *
       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this opinion should not be published and is not precedent except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. 05-10833
                                 -2-

       Defense counsel’s statements at the sentencing hearing did

not clearly abandon Amaya’s objections to the drug quantity

calculation by the presentence report (PSR).    We review only the

inclusion of the 30-kilogram amount in the drug quantity

calculation, however, because the base offense level of 34 was

error only if the 30-kilogram amount was improperly included,

and, if it was not error, any error concerning the other amounts

included in the drug quantity calculation was harmless.      See

United States v. Solis, 299 F.3d 420, 457 n.135 (5th Cir. 2002).

We review all of the arguments made by Amaya in connection with

the 30-kilogram amount for plain error.    See United States v.

Ocana, 204 F.3d 585, 589 (5th Cir. 2000); United States v. Olano,

507 U.S. 725, 731-37 (1993).

       We have held that it is the defendant’s burden to show “that

the information in the PSR relied on by the district court is

materially untrue,” United States v. Betancourt, 422 F.3d 240,

248 (5th Cir. 2005), and that, absent rebuttal evidence, the

district court is entitled to rely on the facts recited in the

PSR.    United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th

Cir. 2005), cert. denied, 126 S. Ct. 1020 (2006).    Amaya

stipulated in the factual resume for his plea that his conspiracy

with Christina Martinez and others “[s]pecifically” involved a

September 2003 meeting during which he offered to sell a

confidential informant 30 kilograms of cocaine.    Because that

stipulation was recited in the PSR and because Amaya offered no
                             No. 05-10833
                                  -3-

evidence to rebut the PSR’s inclusion of that amount in the drug

quantity calculation, any error by the district court in

including that amount in the drug quantity calculation was not

clear or obvious.     See De Jesus-Batres, 410 F.3d at 164; Olano,

507 U.S. at 731-37; see also United States v. Lopez, 923 F.2d 47,

50 (5th Cir. 1991).

     Amaya’s arguments that the 30-kilogram amount should not

have been counted because the meeting between him and a

confidential informant was not a conspiracy and because the mere

offer to sell drugs did not constitute a criminal act rely on the

premise that the meeting was not part of his conspiracy with

Martinez.   As there was no plain error in attributing the 30-

kilogram meeting to the conspiracy between Amaya and Martinez,

these arguments are unavailing.

     Amaya also argues that the 30-kilogram amount should not

have been included in the drug quantity calculation because

although he offered to sell the cocaine to a confidential

informant, there was no evidence that his offer was accepted by

the confidential informant.    “In an offense involving an

agreement to sell a controlled substance, the agreed-upon

quantity of the controlled substance shall be used to determine

the offense level” unless, inter alia, the defendant establishes

that he did not intend to provide or purchase the agreed-upon

amount or was not reasonably capable of providing the agreed-upon

amount.   U.S.S.G. § 2D1.1 comment. (n.12).
                             No. 05-10833
                                  -4-

     Amaya and the Government disagree on whether the phrase

“agreed-upon quantity” should include an offer to sell.     Because

there is no controlling authority interpreting this phrase in the

comment to the guidelines, any error on the part of the trial

court could not be plain.     See United States v. Dupre, 117 F.3d

810, 817 (5th Cir. 1997); United States v. Calverley, 37 F.3d

160, 165 (5th Cir. 1994) (en banc).    Moreover, assuming, arguendo

only, that the phrase “agreed-upon quantity” does not include

offers to sell, the factual issue regarding whether Amaya’s offer

to sell cocaine was accepted by the confidential informant could

have been resolved during the sentencing hearing.    “Questions of

fact capable of resolution upon proper objection at sentencing

can never constitute plain error.”     Lopez, 923 F.2d at 50.

     A district court’s determination of a defendant’s role in

the offense is a factual finding that this court reviews for

clear error.     United States v. Villanueva, 408 F.3d 193, 203 &

n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005).    Given the

facts set forth in the PSR about Amaya’s direct participation in

negotiating drug transactions involving multiple kilograms of

cocaine, the district court did not clearly err in concluding

that Amaya was not entitled to a reduction for a minor role in

the offense.     See United States v. Atanda, 60 F.3d 196, 199 (5th

Cir. 1995).

     AFFIRMED.
