*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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-30024

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

IRA BRYANT, III,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

(98-CR-20096-01)

January 3, 2000

Before JONES, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Ira Byrant III (“Bryant”) pleaded guilty

to distribution of crack cocaine in violation of 21 U.S.C. §

841(a)(1). Bryant appeals his sentence, contending that the

district court incorrectly applied the United States Sentencing

Commission Guidelines (the “Guidelines”) in calculating the

quantity of crack cocaine considered in sentencing. For the

reasons discussed below, we affirm the sentence imposed by the

district court.

I.
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On May 4, 1996, Bryant began a four-year term of supervised

release after a conviction for distributing cocaine. While on

supervised release, Bryant distributed .51 grams of cocaine base to

an undercover federal agent. Less than one month later, Bryant was

present when the undercover agent purchased .52 grams of cocaine

from a third party, Jamie Holmes (“Holmes”). At the time of that

purchase, Bryant told the undercover agent that his “rocks were

bigger”, indicating that he had the larger quantities of cocaine

that the agent desired.

At sentencing, the government introduced its Presentence

Investigation Report (“PSI”) recommending that Bryant be sentenced

based on distribution of 1.03 grams of cocaine, the .51 distributed

by Bryant and the .52 distributed by Holmes, under § 1B1.3 of the

Guidelines. Bryant objected, contending that he should not be

sentenced based on Holmes’s transaction. The district court

disagreed, finding that there was sufficient evidence that Bryant

could reasonably foresee the Holmes transaction, and sentenced

Bryant to 37 months of imprisonment followed by a 3 to 5 year term

of supervised release, the maximum penalty under the applicable

Guidelines. Bryant timely filed a notice of appeal.

II.

We review a district court’s calculation of a sentence under

§ 1B1.3 of the Guidelines under the clearly erroneous standard.

See United States v. Lokey, 945 F.2d 825, 839 (5th Cir. 1991). At

sentencing, the government need only prove facts by a preponderance
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of the evidence, not beyond a reasonable doubt. See United States

v. Watts, 519 U.S. 148, 156 (1997). Thus, we must affirm unless

the district court committed clear error in determining that the

government had proved Bryant’s connection to Holmes’s .52 grams of

cocaine by a preponderance of the evidence.

Under section 1B1.3 of the Guidelines, the base offense level

is determined on the basis of “in the case of a jointly undertaken

criminal activity (a criminal plan, scheme, endeavor, or enterprise

undertaken by the defendant in concert with others, whether or not

charged as a conspiracy), all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity.” Guidelines § 1B1.3(a)(1)(B). The district

court determined that it was reasonably foreseeable that Holmes

would engage in the sale of cocaine while in his presence, and thus

included the .52 grams in Bryant’s base offense.

Bryant contends that the Holmes transaction was not a “jointly

undertaken criminal activity” because the two were competing drug

dealers and thus Bryant was not working with Holmes at the time of

the transaction. It is true that it is not enough to find the sale

of drugs reasonably foreseeable alone, rather it is necessary to

prove that the defendant agreed to undertake criminal activity with

others. See United States v. Evboumwan, 992 F.2d 70, 74 (5th Cir.

1993). However, this Circuit has held that sales by competing drug

dealers may still be included under section 1B1.3 because “the
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friendly competitors . . . as a whole created a marketing site

greater than the sum of its parts . . . [t]he presence of multiple,

part-time pushers and a larger supply for users produced a

marketing symbiosis that far outweighed its minor competitive

aspects.” United States v. Smith, 13 F.3d 860, 865 (5th Cir. 1994).

The present case closely resembles that in Smith. Bryant and

Holmes were standing together in the yard of a house known for drug

dealing transactions. The undercover agent approached the two

because he had purchased cocaine from Bryant in the past. When the

agent purchased cocaine from Holmes, Bryant indicated that his

“rocks were bigger” in an attempt to garner additional business.

Thus, that Holmes and Bryant were competing drug dealers does not

change the fact that they were acting as marketing symbols for each

other, creating a “marketing site greater than the sum of its

parts.” Smith, 13 F.3d at 864. This is sufficient to determine

that the finding of the district court was not clearly erroneous,

in that the facts presented were more than sufficient to support

the conclusion that Bryant and Holmes were engaged in a jointly

undertaken criminal activity even though it was as competitors.

III.

For the reasons assigned, the sentence imposed by the district

court is AFFIRMED.