                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 03-4745
RANDY GENE FENTON,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              John T. Copenhaver, Jr., District Judge.
                            (CR-03-43)

                      Submitted: February 2, 2004

                        Decided: March 8, 2004

    Before WILLIAMS, TRAXLER, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Mary Lou Newberger, Federal Public Defender, George H. Lancaster,
Jr., Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Michael H. Spen-
cer, Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
2                     UNITED STATES v. FENTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Randy Gene Fenton pled guilty to distribution of more than five
grams of methamphetamine in violation of 21 U.S.C.A. § 841(a),
(b)(1)(B) (West 1999 & Supp. 2003), and was sentenced to a term of
108 months imprisonment. In this appeal, Fenton contests the district
court’s determination of the quantity of methamphetamine attribut-
able to him. U.S. Sentencing Guidelines Manual § 2D1.1 (2002). We
affirm.

  Fenton made the following sales of methamphetamine to an under-
cover officer in October 2002:

    On October 2, Fenton sold the officer 1.1 grams of metham-
    phetamine for $100. The methamphetamine tested 21% pure
    and yielded .23 grams of actual methamphetamine.

    On October 3, Fenton sold the officer 3.9 grams of metham-
    phetamine for $250. The methamphetamine was 16% pure
    and yielded .62 grams of actual methamphetamine.

    On October 9, Fenton sold the officer 16 grams of metham-
    phetamine that was 25% pure and yielded four grams of
    actual methamphetamine, and 15.9 grams of methamphet-
    amine that was 21% pure and yielded 3.3 grams of actual
    methamphetamine for $750. Fenton also offered to sell
    cocaine and gave the officer 1.1 grams of cocaine so that he
    could try it.

    On October 23, Fenton sold the officer 55.3 grams of
    methamphetamine that was 29% pure and yielded 11 grams
    of actual methamphetamine for $1500. Fenton told the offi-
    cer he could obtain a pound of methamphetamine with a
                       UNITED STATES v. FENTON                        3
    day’s notice and would sell it for $10,000 a pound or $5000
    a half-pound.

   Fenton was arrested on December 12, 2002, when authorities
began to suspect he was about to leave the area. He was in possession
of 2.4 grams of methamphetamine that was 29% pure and yielded .69
grams of actual methamphetamine, $9518 in currency, a loaded fire-
arm, a quantity of marijuana, and various unidentified pills.

   Over Fenton’s objection, the district court determined that the
$9518 was drug proceeds and estimated that it represented 12.69
ounces of methamphetamine, the amount that could be purchased at
$750 per ounce. The court determined that the average purity of the
methamphetamine Fenton had sold the officer was 21% and, using
that percentage, converted the estimated 12.69 ounces of metham-
phetamine to 79.14 grams of pure methamphetamine. This calculation
yielded a total of 95.45 grams of pure methamphetamine which estab-
lished a base offense level of 32. USSG § 2D1.1(c)(4) (applicable in
offense involving 50-150 grams of methamphetamine (actual)).

   The court rejected Fenton’s claim that the $2600 paid to him by the
undercover officer should be deducted from the $9518 in his posses-
sion when he was arrested, finding that, because Fenton’s last sale to
the officer occurred fifty days before his arrest, it was a reasonable
assumption that those funds had already been used. The court found
that there was "no other reasonable explanation than drug sales" for
his possession of the entire $9518. The court found that only a small
part of the total quantity of methamphetamine that Fenton sold to the
officer was sold for $100 per gram, while most was sold at a price
less advantageous to Fenton for sentencing purposes. The court deter-
mined that the fair conversion rate for the seized funds was $750 per
ounce rather than $100 per gram as Fenton suggested. The court
decided against conversion of the funds to cocaine, which Fenton
favored, because there was no evidence of cocaine sales despite Fen-
ton’s offer to sell cocaine to the officer.

   The court imposed a sentence of 108 months imprisonment, the
bottom of the range. Fenton contends on appeal that the district court
clearly erred in failing to exercise caution in determining the quantity
of methamphetamine attributable to him.
4                      UNITED STATES v. FENTON
   The district court’s determination of the amount of drugs attribut-
able to the defendant for sentencing purposes is generally a factual
finding reviewed for clear error. United States v. Sampson, 140 F.3d
585, 591 (4th Cir. 1998). When the amount of drugs "seized does not
reflect the scale of the offense, the district court shall approximate the
quantity to be used for sentencing." USSG § 2D1.1, comment. (n.12).
When approximation is necessary, the court "may properly convert
cash amounts linked credibly to the defendant’s purchase or sale of
narcotics so long as the court does not engage in double counting of
both the proceeds and the narcotics themselves." Sampson, 140 F.3d
at 592.

   Fenton contends that the district court erred when it converted the
seized funds to actual methamphetamine because it failed to exercise
appropriate caution. He relies principally on United States v.
Sepulveda, 15 F.3d 1161, 1198 (1st Cir. 1993) (holding that, "where
uncertainty reigns" about the amount of drugs involved in a conspir-
acy, courts should "err on the side of caution"). We are not persuaded
that the district court failed to exercise appropriate caution in this
case.

   Fenton claims first that the court erred in refusing to reduce the
$9815 in his possession by $2600 to account for money he received
from the undercover officer and avoid double counting. In connection
with this issue, he argues that the government failed to produce evi-
dence to support the court’s conclusion that the entire $9518 was drug
money. We note that, at sentencing, Fenton did not challenge the dis-
trict court’s treatment of the $9518 as drug proceeds. He objected
only to the court’s failure to deduct $2600 before approximating the
amount of methamphetamine the money represented. Applying the
plain error standard, see United States v. Mackins, 315 F.3d 399, 406
(4th Cir.), cert. denied, 123 S. Ct. 2099 (2003), we are satisfied that
the district court did not plainly err in treating all the money as drug
proceeds because Fenton was known to sell methamphetamine and
the court had no evidence of any other source for the money.

   The court did not clearly err or fail to exercise appropriate caution
in concluding that none of the money was proceeds of Fenton’s sales
to the undercover officer because fifty days had passed since Fenton’s
last sale to the officer. Fenton told the undercover officer that he
                       UNITED STATES v. FENTON                          5
could obtain large amounts of methamphetamine on short notice.
Thus, the court could reasonably infer that, by the time he was
arrested, Fenton had used the money he received from the officer dur-
ing the preceding month and a half, and that the money he possessed
at arrest was the proceeds of later drug sales.

   Fenton also maintains that the district court erred by failing to exer-
cise appropriate caution when it converted the seized funds to
methamphetamine rather than cocaine because there was no evidence
that the money came from methamphetamine sales rather than
cocaine sales. The court had before it evidence of Fenton’s metham-
phetamine distributions and evidence of his willingness to sell
cocaine, but no definite evidence that he had sold cocaine. Therefore,
the court did not clearly err in converting the money to the approxi-
mate quantity of methamphetamine it represented.

   Next, Fenton argues that the court erred in converting the funds at
the rate of $750 per ounce rather than $100 per gram. He asserts that
"a cautious estimation of the price of [his] cocaine sales would be
$100 per gram" because he told the undercover officer that he would
sell cocaine for the same price as methamphetamine and charged
$100 per gram for the first methamphetamine sale. This claim is moot
because the court correctly determined that the money should be con-
verted to methamphetamine. Assuming that Fenton intends to chal-
lenge the rate at which the district court converted the funds to
methamphetamine, the court did not clearly err because most of the
methamphetamine Fenton sold to the officer was priced at $750 per
ounce. Of 92.2 grams of methamphetamine mixture distributed to the
officer, only five grams were sold at a price higher than $750 per
ounce.

   Fenton also claims that the court erred by refusing to convert the
funds to a quantity of methamphetamine mixture and to convert both
that amount and the known quantity of pure methamphetamine to
marijuana equivalents. He relies on United States v. Aquino, 242 F.3d
859 (9th Cir. 2001). In Aquino, the district court dealt with a quantity
of seized methamphetamine of known purity and seven pounds of
methamphetamine previously sold by the defendant which was of
unknown purity. The court treated the previously sold seven pounds
as "generic" methamphetamine and converted that amount and the
6                     UNITED STATES v. FENTON
known quantity of pure methamphetamine to their marijuana equiva-
lents to determine the base offense level.

   In this case, the district court could have followed the procedure
used in Aquino, but instead chose to approximate the amount of
methamphetamine represented by the seized money in a different but
equally valid manner. Application Note 12 does not dictate a particu-
lar method for approximating the quantity of drugs. Courts have
approved the use of the average purity of seized quantities of
methamphetamine to estimate the purity of the total amount of
methamphetamine distributed. See United States v. Lopes-Montes,
165 F.3d 730, 731-32 (9th Cir. 1999). We conclude that the district
court did not clearly err when calculating the amount of methamphet-
amine attributable to Fenton.

   We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                                                        AFFIRMED
