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that this opinion should not be published and is not precedent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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-50949

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ISMAEL MUNOZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(EP-96-CR-299-1)

_________________________________________________________________

September 4, 1997

Before KING, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*

Ismael Munoz argues that the district court clearly erred in

determining the quantity of drugs attributable to Munoz for

sentencing purposes. Munoz negotiated to sell about 1000 pounds

of marijuana to undercover agents and was arrested after he

delivered the first installment of 146 pounds. He was convicted

and sentenced for possession of the 146 pounds and conspiracy to

possess with intent to distribute 1000 pounds. Munoz argues that
2

he should not have been held accountable for 1000 pounds of

marijuana because he did not have the capacity to acquire that

amount of drugs and that his statements that he could obtain 1000

pounds were merely “puffery.” He argues that this fact was

corroborated by the trial testimony of his coconspirator. The

district court found, however, that “there was sufficient

evidence to support the indictment theory that the defendant

conspired to deal with some 800 to 1,000 pounds of marijuana, at

least.”

The district court’s finding concerning the quantity of

drugs attributable to the defendant is a factual finding reviewed

for clear error. United States v. Vine, 62 F.3d 107, 109 (5th

Cir. 1995). The application notes to the applicable portion of

the Sentencing Guidelines provide that the agreed-upon quantity

is generally to be used in determining the offense level, except

if

the defendant establishes that he or she did not intend

to provide, or was not reasonably capable of providing,

the agreed-upon quantity of the controlled substance,

the court shall exclude from the offense level

determination the amount of controlled substance that

the defendant establishes that he or she did not intend

to provide or was not reasonably capable of providing.

U.S. SENTENCING GUIDELINES MANUAL § 2D2.1 application note 12 (1995)

(emphasis added). Application note 12 was amended in 1995 to

clarify that the defendant has the burden of proving any amount
3

that should be excluded from the calculation of the offense

level. See id. app. C, amend. 518. 

We have reviewed the record, including the testimony of

Munoz’s coconspirator, the presentence report, and the briefs of

the parties, and affirm the district court’s determination of the

quantity of drugs attributable to Munoz. The testimony of

Munoz’s coconspirator, as well as the other evidence presented at

trial and in the presentence report, reflect that Munoz was

reasonably capable of selling the undercover agent 1000 pounds of

marijuana, albeit “little by little.” That he was arrested with

only 146 pounds and that he intended to acquire the full amount

in small increments does not establish that he was not reasonably

capable of providing the 1000 pounds. See id. at 110 (“The fact

that Vine failed in supplying the chemicals necessary to produce

12 pounds [of methamphetamine] is not evidence that Vine did not

intend to supply the needed chemicals or that he would not be

able to do so in the near future.”). Therefore, Munoz did not

meet his burden of establishing that he was not reasonably

capable of providing 1000 pounds of marijuana, and the district

court did not clearly err in basing Munoz’s offense level on that

amount of controlled substance.

AFFIRMED.