                                                          United States Court of Appeals
                                                                   Fifth Circuit

                                                               FILED
                 IN THE UNITED STATES COURT OF APPEALS        June 22, 2004
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                              No. 03-20937
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,
versus

ROBERTO GARZA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-03-CR-94-2
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Roberto Garza pleaded guilty to an indictment charging him

with possession of five or more kilograms of cocaine with intent

to distribute.    Garza contends that he should have been sentenced

on the basis of the drugs he actually possessed and not the

quantity of drugs under negotiation.    On similar facts, this

court held in United States v. Lombardi, 138 F.3d 559, 562 (5th

Cir. 1998), that the district court had not clearly erred in

holding the defendant responsible for the entire quantity of




     *
       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this opinion should not be published and is not precedent except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. 03-20937
                                  -2-

drugs agreed upon by the parties.      See U.S.S.G. § 2D1.1, comment.

(n.12).

     Garza contends that, in applying commentary note 12, the

district court erred by imposing on him the burden of showing

that he did not intend or was not reasonably capable of providing

the agreed-upon quantity.    Garza urges the court to adopt the

rule in United States v. Hazut, 140 F.3d 187, 192 (2d Cir. 1998),

that, while the defendant must come forward with some evidence

that establishes his lack of intent or capability, the ultimate

burden of proof remains with the Government.     Because it was not

raised below, we review this issue for plain error.      See United

States v. Wheeler, 322 F.3d 823, 827 (5th Cir. 2003).

     The district court did not base its ruling on the failure of

Garza to meet his burden of proof.     Instead, it found that the

evidence showed that Garza intended to complete the transaction

and was reasonably capable of doing so.     Under the rule that

Garza urges the court to apply, there was no error, as Garza did

not present evidence showing his lack of intent or capability.

Although it is possible, as Garza suggests, that Garza had a

change of heart and attempted to flee after failing to complete

the transaction, that fact does not vitiate his earlier intent to

sell the entire quantity of drugs under negotiation.     Moreover,

Garza’s substantial rights were not affected because the district

court could have imposed the same sentence under Garza’s theory

of the case.     See id. at 828.   The judgment is

     AFFIRMED.
