           RECOMMENDED FOR FULL-TEXT PUBLICATION                            2    United States v. Vasquez                   No. 02-5181
                Pursuant to Sixth Circuit Rule 206

        ELECTRONIC CITATION: 2003 FED App. 0448P (6th Cir.)                 ATTORNEY, Chattanooga, Tennessee, for Appellee.
                    File Name: 03a0448p.06
                                                                            ON BRIEF: John Allen Brooks, Chattanooga, Tennessee,
                                                                            for Appellant. Paul W. Laymon, Jr., ASSISTANT UNITED
UNITED STATES COURT OF APPEALS                                              STATES ATTORNEY, Chattanooga, Tennessee, for
                                                                            Appellee.
                   FOR THE SIXTH CIRCUIT
                     _________________                                                         _________________
                                                                                                   OPINION
 UNITED STATES OF AMERICA , X                                                                  _________________
            Plaintiff-Appellee, -
                                  -                                            KAREN NELSON MOORE, Circuit Judge.                     The
                                  -   No. 02-5181                           Defendant-Appellant, Ralph Vasquez (“Vasquez”), appeals
           v.                     -                                         the district court’s determination of his base offense level
                                   >                                        under United States Sentencing Guideline (“U.S.S.G.”)
                                  ,
 RALPH VASQUEZ,                   -                                         § 2D1.1(c)(4) for conspiring to distribute 1.3608 kilograms
         Defendant-Appellant. -                                             (three pounds) of a mixture or substance containing a
                                 N                                          detectable amount of methamphetamine, in violation of
                                                                            21 U.S.C. §§ 846 and 841(b)(1)(B). On appeal, Vasquez
       Appeal from the United States District Court                         argues that the district court erred in determining his base
  for the Eastern District of Tennessee at Chattanooga.                     offense level due to that court’s misapplication of U.S.S.G.
    No. 01-00061—Curtis L. Collier, District Judge.                         § 2D1.1, Application Note 12 (“Note 12”), regarding the
                                                                            quantity of controlled substance to be used in determining the
                   Argued: September 9, 2003                                offense level for an offense involving an agreement to sell a
                                                                            controlled substance. Vasquez argues that under Note 12, the
            Decided and Filed: December 19, 2003                            additional two pounds of methamphetamine that Charlie Rose
                                                                            (“Rose”), a co-defendant, and Vasquez agreed to deliver
 Before: MOORE and GILMAN, Circuit Judges; MILLS,                           should not have been considered in determining Vasquez’s
                 District Judge.*                                           base offense level because Vasquez was not reasonably
                                                                            capable of providing the additional two pounds due to his
                       _________________                                    imminent arrest. For the reasons discussed below, we
                                                                            AFFIRM the sentence imposed by the district court.
                             COUNSEL
                                                                                                I. BACKGROUND
ARGUED: John Allen Brooks, Chattanooga, Tennessee, for
Appellant. Perry H. Piper, ASSISTANT UNITED STATES                            The facts of this case are not in dispute. In March 2001,
                                                                            agents with the Tennessee Bureau of Investigation (“TBI”)
    *
                                                                            received information from a confidential informant (“CI”)
     The Hon orable R ichard M ills, United States District Judge for the   that Rose could deliver methamphetamine. The CI arranged
Central District of Illinois, sitting by designation.

                                   1
No. 02-5181                   United States v. Vasquez     3    4       United States v. Vasquez                        No. 02-5181

to purchase one pound of methamphetamine from Rose and          with knowingly and intentionally carrying a firearm in
to have it delivered in Meigs County, Tennessee. On             relation to the drug trafficking offenses set out in Counts One
March 19, 2001, the CI and an undercover TBI agent met          and Two, in violation of 18 U.S.C. §§ 2 and 924(c). On
Rose at a designated residence in Meigs County. Additional      September 6, 2001, Vasquez pleaded guilty to Counts One
TBI agents monitored the transaction.                           and Three of the Superseding Indictment pursuant to a written
                                                                plea agreement. Count Two was dismissed upon motion by
  When Rose arrived at the residence, he was accompanied        the government. On January 4, 2002, Vasquez was sentenced
by Vasquez. Previously, in Dalton, Georgia, Eric Estrada        to 101 months’ imprisonment (forty-one months on Count
(“Estrada”) had “fronted” the methamphetamine that Rose         One and sixty months on Count Three) and four years of
was to deliver in Meigs County. Estrada had sent his            supervised release. At the sentencing hearing, Vasquez
associate, Vasquez, along with Rose on the March 19, 2001       objected to the amount of methamphetamine used to
transaction to ensure that Rose delivered the                   determine his base offense level, arguing that he was not
methamphetamine and that Estrada received payment.              reasonably capable of delivering the additional two pounds of
                                                                methamphetamine due to his imminent arrest.
   At the residence in Meigs County, Rose and Vasquez
negotiated to sell an additional two pounds of                    In response to Vasquez’s objection, the government argued
methamphetamine to the CI. Rose and Vasquez told the CI         that under Note 12, the additional two pounds of
that they would deliver the additional two pounds of            methamphetamine that Rose and Vasquez agreed to deliver
methamphetamine for $20,000 at a later date. Then, Rose and     should be considered in determining Vasquez’s base offense
Vasquez delivered the original one pound of                     level because Vasquez agreed to deliver, intended to deliver,
methamphetamine in exchange for $11,500. Immediately            and was reasonably capable of delivering the additional two
thereafter, TBI agents arrested Rose and Vasquez. When TBI      pounds of methamphetamine. The government supported its
agents searched the car that Rose and Vasquez used to travel    argument that Vasquez was reasonably capable of obtaining
to Meigs County, they found a loaded Colt .45 in plain view.    and delivering the additional methamphetamine by showing
                                                                that during the same month, Estrada, Rose’s and Vasquez’s
  On April 11, 2001, Vasquez and two co-conspirators were       supplier, engaged in transactions for one-half of a pound, one
charged in a three-count Indictment. On May 22, 2001, a         pound, and two pounds of methamphetamine.1
Superseding Indictment added three additional co-
conspirators. In Count One of the Superseding Indictment,
Vasquez and five co-conspirators were charged with
conspiring to distribute five hundred grams or more of a
mixture or substance containing a detectable amount of              1
methamphetamine, in violation of 21 U.S.C. §§ 846,                    During March 2001, the Georgia Bureau of Investigation (“GBI”)
841(a)(1), and 841(b)(1)(A). In Count Two, Vasquez and two      investigated Estrada and Hector Garnica (“Garnica”). On March 12,
                                                                2001, Estrada sold one-half of a pound of methamphetamine to a Ge orgia
co-conspirators were charged with distributing fifty grams or   CI. Then, on March 16, 2001, Estrada and Braulio Garnica (“Braulio”)
more of a mixture or substance containing a detectable          delivered an additional one pound of methamphetamine to the CI. On
amount of methamphetamine on or about March 19, 2001, in        March 18, Estrada arranged to deliver two pounds of methamphetamine
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). In        to the same CI for $19,000 . On M arch 24, 2001 , Braulio delivered the
Count Three, Vasquez and two co-conspirators were charged       two pounds of methamphetamine to the CI for Estrada. Estrada, Garnica,
                                                                and Melinda Knight were also present at that delivery.
No. 02-5181                    United States v. Vasquez      5    6    United States v. Vasquez                    No. 02-5181

  The district court overruled Vasquez’s objection and                                  II. ANALYSIS
accepted the calculations contained in the Presentence Report
(“PSR”). The PSR used the additional two pounds of                A. Jurisdiction
methamphetamine that Rose and Vasquez agreed to deliver
and the one pound of methamphetamine that Rose and                   The district court had jurisdiction pursuant to 18 U.S.C.
Vasquez actually delivered to determine Vasquez’s base            § 3231 because Vasquez was charged with offenses against
offense level. In accordance with the PSR, the district court     the laws of the United States. This court has jurisdiction over
set Vasquez’s base offense level for Count One at level thirty-   the appeal under 28 U.S.C. § 1291 and 18 U.S.C.
two. Vasquez received a minor role reduction of two levels,       § 3742(a)(2) because Vasquez is appealing the district court’s
making his adjusted offense level thirty for Count One.           final sentence on the ground that it was imposed through an
Additionally, Vasquez received a three-level adjustment for       incorrect application of the guidelines.
acceptance of responsibility, making his total offense level a
twenty-seven for Count One. The district court also granted       B. Standard of Review
downward departures of four levels for the government’s
§ 5K1.1 motion and three levels for Vasquez’s testimony at           This court reviews for clear error “the district court’s
the sentencing hearing. These downward departures reduced         determination of the quantity of drugs attributable to
Vasquez’s offense level to twenty and resulted in a sentencing    defendant for sentencing purposes.” United States v.
guideline range of forty-one to fifty-one months for Count        Ukomadu, 236 F.3d 333, 341 (6th Cir. 2001). “[A] finding is
One. The district court sentenced Vasquez at the lower end        clearly erroneous when although there is evidence to support
of the range, to forty-one months’ imprisonment on Count          it, the reviewing court on the entire evidence is left with the
One. In his brief, Vasquez points out that if the additional      definite and firm conviction that a mistake has been
two pounds of methamphetamine were not used to determine          committed.” Anderson v. City of Bessemer City, 470 U.S.
Vasquez’s base offense level, Vasquez’s offense level would       564, 573 (1985) (quoting United States v. United States
have been eighteen, with a sentencing guideline range of          Gypsum Co., 333 U.S. 364, 395 (1948)) (internal quotation
thirty-three to forty-one months.                                 marks omitted). A reviewing court may not reverse a finding
                                                                  of the trier of fact merely because it would have decided the
  Vasquez timely appealed his sentence. On appeal,                matter differently. Id. Rather, “[i]f the district court’s
Vasquez’s only argument is that the district court erred in its   account of the evidence is plausible in light of the record
determination of his base offense level due to that court’s       viewed in its entirety, the court of appeals may not reverse it
misapplication of Note 12. Vasquez argues that he was not         even though convinced that had it been sitting as the trier of
reasonably capable of delivering the additional two pounds of     fact, it would have weighed the evidence differently.” Id. at
methamphetamine due to his imminent arrest and thus that          573-74.
Note 12 requires the exclusion of the additional two pounds
from the determination of his base offense level.                 C. Determination of Vasquez’s Base Offense Level
                                                                     Under Note 12
                                                                     In this case, determination of the quantity of drugs
                                                                  attributable to Vasquez turns upon proper application of
                                                                  Note 12, which provides:
No. 02-5181                    United States v. Vasquez          7   8       United States v. Vasquez                         No. 02-5181

  In an offense involving an agreement to sell a controlled             Vasquez has the burden of proving that he was not
  substance, the agreed-upon quantity of the controlled              reasonably capable of providing the additional two pounds of
  substance shall be used to determine the offense level             methamphetamine. Munoz, 233 F.3d at 415. Vasquez relies
  unless the sale is completed and the amount delivered              on the following facts in an effort to demonstrate that he was
  more accurately reflects the scale of the offense. . . . If,       not reasonably capable of providing the additional two
  however, the defendant establishes that he or she did not          pounds: (1) two TBI agents were inside the residence in
  intend to provide, or was not reasonably capable of                Meigs County when the transaction occurred; (2) TBI agents
  providing, the agreed-upon quantity of the controlled              installed listening devices in the house prior to the
  substance, the court shall exclude from the offense level          transaction; (3) TBI agents arranged to have Vasquez and
  determination the amount of controlled substance that the          Rose arrested immediately after they brought the
  defendant establishes that he or she did not intend to             methamphetamine mixture into the home (demonstrated by
  provide or was not reasonably capable of providing.                the fact that a TBI agent exchanged a bag with no money in
                                                                     it for the methamphetamine); (4) Rose and Vasquez were not
U.S.S.G. § 2D1.1, cmt. n.12 (2001). The parties agree that           permitted to leave the residence; and (5) the CI negotiated the
for an offense involving an agreement to sell a controlled           transaction with “full knowledge” that Vasquez would be
substance that is not completed, Note 12 requires that courts        unable to complete the transaction. In essence, Vasquez
use the agreed-upon quantity to determine the offense level,         argues that he was not reasonably capable of providing the
unless the defendant did not intend to provide or was not            additional methamphetamine because TBI agents planned to,
reasonably capable of providing the agreed-upon quantity.            and did, arrest Vasquez immediately after the agreement;
Although Vasquez correctly points out that there is a circuit        therefore, he had no opportunity to obtain or deliver the
split regarding which party has the burden of proof under            additional methamphetamine.
Note 12, the Sixth Circuit places the burden on the defendant.
United States v. Munoz, 233 F.3d 410, 415 (6th Cir. 2000).              The government counters that the district court did not err
“The Sixth Circuit has held that ‘once the government                when it included the additional two pounds of
satisfies its burden in establishing a negotiated amount, the        methamphetamine in its determination of Vasquez’s base
defendants have the burden of proving they were not capable          offense level. To demonstrate that Vasquez was reasonably
of producing that amount.’” Id. (quoting United States v.            capable of providing the additional two pounds, the
Christian, 942 F.2d 363, 368 (6th Cir. 1991)).                       government points to the fact that during the same month as
                                                                     Vasquez’s arrest, Vasquez’s supplier engaged in monitored
   In this case, Vasquez does not dispute that he agreed to sell     transactions of one-half of a pound, one pound, and two
the additional two pounds of methamphetamine and that he             pounds of methamphetamine.2 The government argues that
intended to do so. Vasquez only disputes the district court’s
finding that he was reasonably capable of providing the
additional two pounds of methamphetamine. Thus, Vasquez                  2
                                                                           The government also points to Vasquez’s admission at the
argues that the district court committed clear error when it         sentencing hearing that there is evidence showing that V asquez could
included the additional two pounds in the determination of his       com plete the transaction. Sp ecifically, the government cites V asquez’s
base offense level.                                                  counsel’s statement that “[t]here is no evidence to show that [defendant
                                                                     and Rose] couldn’t have provided the two pound s. In fact, there is
                                                                     evidence to show that they could have p rovid ed two pounds.” App ellee’s
                                                                     Br. at 11 (quoting Joint Appendix (“J.A.”) at 65 (Sentencing Hr’g Tr.)).
No. 02-5181                    United States v. Vasquez      9    10   United States v. Vasquez                    No. 02-5181

Vasquez was reasonably capable of providing the additional        apply the principle embodied in Note 12, the focus must shift
methamphetamine because during the same month Vasquez’s           according to a defendant’s role in the offense.” Id. The court
supplier was engaging in transactions of up to two pounds.        further explained that “[w]hen the defendant is a drug buyer,
Thus, if Vasquez had not been arrested, Vasquez could have        Note 12 would address the quantity of drugs that the
obtained and delivered the additional methamphetamine.            defendant intended to purchase and was reasonably capable
                                                                  of purchasing. And where . . . a defendant has been convicted
  We are aware that in cases such as this, when the               of conspiring to transport drugs, the proper focus is the
government conducts an undercover operation and makes a           quantity of drugs the defendant intended to transport and was
suggestion to the defendant about future transactions,            reasonably capable of transporting.” Id. at 437. (internal
increasing a defendant’s sentence based upon an agreement to      citations omitted). Thus, in cases such as this, where the
sell a controlled substance might tempt law enforcement to        defendant acted as an emissary for a particular drug supplier,
suggest additional transactions involving large quantities of     the fact that the supplier was engaging in transactions
drugs merely to escalate the defendant’s potential sentence.      involving similar quantities of the drug at issue during the
In an extreme case, law enforcement officials could suggest       same time period can be probative evidence that the defendant
additional sales of drug quantities so out of proportion to the   was reasonably capable of providing that amount.
defendant’s normal course of dealings that it would be unfair
to sentence the defendant based upon that amount. The               Additionally, there are some factors that are indicative of a
language of Note 12, however, protects defendants from this       defendant’s intent and capability regardless of his or her role
possible abuse. Note 12 instructs the sentencing court to         in the transaction. When applying Note 12, other circuits
“exclude from the offense level determination the amount of       have considered factors such as: whether the defendant
controlled substance that the defendant establishes that he or    engaged in serious negotiations rather than mere “idle talk,”
she did not intend to provide or was not reasonably capable of    whether the defendant participated in similar transactions on
providing.” U.S.S.G. § 2D1.1, cmt. n.12 (2001).                   prior occasions, and whether the defendant hesitated before
                                                                  agreeing to the transaction. United States v. Wash, 231 F.3d
  We have clearly articulated that once the government            366, 373 (7th Cir. 2000), cert. denied, 532 U.S. 1057 (2001);
establishes the agreed-upon quantity, the defendant has the       United States v. Hazut, 140 F.3d 187, 193 (2d Cir. 1998);
burden of proving that he or she either did not intend to         United States v. Williams, 109 F.3d 502, 512 (8th Cir.), cert.
provide or was not reasonably capable of providing that           denied, 522 U.S. 917 (1997); United States v. Hendrickson,
amount. Munoz, 233 F.3d at 415. However, we have not yet          26 F.3d 321, 337 (2d Cir. 1994), further proceedings at, No.
given the district courts much guidance regarding what            95-1483, 1996 WL 508453 (Sept. 9, 1996), cert. denied, 520
factors they should consider when deciding whether the            U.S. 1129 (1997). Although increasing a defendant’s
defendant has met his or her burden.                              sentence based upon an agreement to sell a controlled
                                                                  substance might tempt law enforcement to suggest additional
  We agree with the Third Circuit’s conclusion that the           sales of large quantities of drugs merely to escalate the
factors that district courts should consider when deciding        defendant’s potential sentence, district courts can ensure that
whether a defendant has met his or her burden vary somewhat       defendants are not sentenced based upon quantities far outside
according to the role the defendant was expected to play in       of their normal course of dealings by carefully evaluating the
the future transaction. United States v. Raven, 39 F.3d 428,      evidence pertaining to the defendant’s intent and capability.
436 (3d Cir. 1994). In Raven, the Third Circuit stated that “to
No. 02-5181                            United States v. Vasquez            11     12       United States v. Vasquez                          No. 02-5181

   Applying the factors articulated above, we conclude that the                   upon the entire 293.3 grams, noting that intervention by law
district court did not commit clear error when it determined                      enforcement should not alter the amount for which the
that Vasquez was reasonably capable of providing the                              defendant is held responsible. Id. at 341. Similarly, in
additional two pounds of methamphetamine. Vasquez was to                          Christian, the defendant engaged in a transaction involving
act as an emissary for his supplier in the agreed-upon                            cocaine that was monitored by law enforcement agents, and
transaction; therefore, the fact that Vasquez’s supplier was                      the defendant was arrested immediately thereafter.4 942 F.2d
engaging in transactions of up to two pounds of                                   at 365. During the transaction, the defendant discussed the
methamphetamine demonstrates that Vasquez could have                              possibility of future deals and stated that for the first two or
obtained the additional methamphetamine. Furthermore, the                         three weeks, he would purchase about five kilograms per
factual background contained in the PSR, which was adopted                        week. Id. We upheld an offense level determination based
by the district court, indicates that Vasquez engaged in                          upon ten kilograms, the amount negotiated for the future
serious negotiations rather than mere idle talk and that                          deals, rejecting the defendant’s contention that there was no
Vasquez did not hesitate before agreeing to the transaction.                      evidence that he was capable of purchasing the two, five-
The only circumstance that prevented Vasquez from obtaining                       kilogram amounts he had negotiated. Id. at 368.
and delivering the additional methamphetamine was his own
arrest immediately after he agreed to provide the additional                        In Ukomadu, we articulated our rationale for basing the
two pounds. In the context of applying Note 12, however,                          offense level determination on the entire drug quantity. We
this court has held that when the fortuitous intervention of law                  sought to avoid forcing officials
enforcement alters the drug quantity, the defendant should
still be held responsible for the entire amount. Ukomadu, 236                       to choose between securing appropriately significant
F.3d at 341.                                                                        sentences for captured drug offenders and alternatively
                                                                                    reducing the quantity of illegal drugs in the stream of
  In Ukomadu, customs officials intercepted a package
containing 293.3 grams of heroin and removed all but six
grams. Id. at 340.3 When the package came into the                                     4
                                                                                        Christian was decided under an earlier version of this application
possession of the defendant, it contained only six grams of                       note, which read: “[W]here the court finds that the defendant did not
heroin. Id. We upheld an offense level determination based                        intend to produce and was not reasonably capable of producing the
                                                                                  negotiated amo unt, the court shall exclude from the guideline calculation
                                                                                  the amount that it finds the d efendant did not intend to produce and was
                                                                                  not reaso nably capable of producing.” United States v. Christian, 942
    3
                                                                                  F.2d 363, 368 (6th Cir. 1991) (quoting then applicable U.S.S.G. § 2D1.4,
      In Ukomadu, the determination of the quantity of drugs attributable         cmt. n.1) (emphases added) (internal quo tation marks om itted). Thus,
to the defendant for sentencing purposes was controlled by a different            under the earlier version, the defendant was required to prove both that he
provision of the U .S.S.G . than is invo lved in the pre sent case. United        or she did not intend to provide and that he or she wa s not reasonably
States v. Ukomadu, 236 F.3d 333 , 340 (6th C ir. 200 1). In Ukomadu, the          capable of pro viding the negotiated amo unt. Id. In 1995, the Guidelines
parties disputed the quantity of drugs attributable to a defendant for            were amended and the prerequisites for exclusion of the negotiated
jointly undertaken crimina l activity, which turns on U.S.S.G. § 1B1.3,           amount were changed from the conjunctive to the disjunctive. U.S.S.G.
Application No te 2. Id. Despite the difference in application notes, the         § 2D 1.1, cmt. n.12 (2001). Thus, under the current version, the defendant
policy rationale underlying this court’s decision in Ukomadu – to                 need only prove either that he o r she did not intend to provide or that he
disregard the intervention by law enforcement when determining the                or she was not capab le of providing the ne gotiated am ount. Id. In spite
quantity of drugs attributable to a defendant – is eq ually applicab le in this   of this alteration, the showing a d efendant must make to satisfy the
case.                                                                             “reasonably capable” prong remains the same.
No. 02-5181                   United States v. Vasquez     13

  commerce. It is better policy to permit officials to
  remove dangerous drugs from the market without
  jeopardizing significant sentences for offenders where it
  is clear that the original amount of drugs was within the
  scope of activity that the defendant jointly undertook.
Ukomadu, 236 F.3d at 341. As the government points out,
this same rationale applies in this case because the defendant
failed to prove that, but for the intervention by law
enforcement, Rose and Vasquez would not have been
reasonably capable of delivering the additional two pounds.
We agree with the government that “it is untenable to require
law enforcement agents to permit the conspirators to continue
doing business before defendant may be held accountable for
the full scope of his criminal conduct.” Appellee’s Br. at 13.
                   III. CONCLUSION
   Because the district court did not commit clear error when
it included the additional two pounds of methamphetamine
that Vasquez agreed to deliver in calculating his base offense
level, we AFFIRM the sentence imposed by the district court.
