                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 15, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-10109
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RONALD CHARLES SWINEY, also known as BG,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:03-CR-78-9-N
                       --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     Ronald Charles Swiney appeals his sentence following his

plea of guilty to three counts of distribution of cocaine base.

Relying on Blakely v. Washington, 124 S. Ct. 2531 (2004), Swiney

argues that he was sentenced based on a drug quantity

determination that was not based on his admitted conduct or

determined by a jury beyond a reasonable doubt.   Swiney has

acknowledged that this court’s recent decision in United States

v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), petition for


     *
       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this opinion should not be published and is not precedent except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. 04-10109
                                  -2-

cert. filed, (U.S. July 14, 2004) (No. 04-5263), forecloses this

issue.

     Swiney also argues that the district court erred by

attributing to him the amounts of cocaine base sold by his co-

defendants.   See U.S.S.G. § 1B1.3.   He argues that the Government

failed to establish that he agreed to a jointly undertaken

criminal activity or that his co-defendants’ drug sales were

within the scope of any such agreement.     We review a district

court’s drug-quantity finding for clear error.     United States v.

Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000).     The district

court did not clearly err in finding that Swiney was engaged in a

jointly undertaken criminal activity and that the other gang

members’ drug sales were reasonably foreseeable acts in

furtherance of this activity.     See § 1B1.3(a)(1)(B).

     Swiney also challenges the Government’s method of

calculating the amount of drugs attributed to each defendant.

The district court is not limited to the actual quantity of drugs

seized but may estimate the quantity of drugs attributable to the

defendant.    See United States v. Medina, 161 F.3d 867, 876 (5th

Cir. 1998).   Facts contained in the PSR are considered reliable

and may be adopted without further inquiry if they have an

adequate evidentiary basis and the defendant fails to present

rebuttal evidence.     See United States v. Huerta, 182 F.3d 361,

364 (5th Cir. 1999).    We conclude that the district court did not

clearly err in adopting the facts contained in the PSR and
                             No. 04-10109
                                  -3-

presented at sentencing; these facts had an adequate evidentiary

basis and, although he challenged the Government’s version of the

facts, Swiney failed to present any evidence in rebuttal.

     Swiney also asserts that the district court erred by

imposing a two-level enhancement for possession of a dangerous

weapon.   See U.S.S.G. § 2D1.1(b)(1).    The district court’s

decision to apply § 2D1.1(b)(1) is a factual determination

subject to review for clear error.      United States v. Devine, 934

F.2d 1325, 1339 (5th Cir. 1991).    We conclude that the district

court did not clearly err in determining that Swiney could

reasonably foresee his co-conspirators’ possession of firearms as

tools of the drug-trafficking trade.      United States v.

Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).

     Swiney also argues that the district court erred by finding

him ineligible for a two-level reduction under the “safety valve”

provisions of U.S.S.G. § 2D1.1(b)(6).       As part of his plea

agreement, Swiney waived “the right to appeal his sentence on any

ground,” with certain exceptions that are inapplicable here.

Swiney was properly advised of the terms of this waiver at

rearraignment, and we conclude that he agreed to the waiver

knowingly and voluntarily.    See United States v. Portillo, 18

F.3d 290, 292 (5th Cir. 1994); FED. R. CRIM. P. 11(b)(1)(N).

Therefore, we will uphold the waiver provision and we not

consider this issue.

     AFFIRMED.
