* The Hon orable R ichard M ills, United States D i strict Judge for the Central Distri ct of Ill inois, s itting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0448P (6th C ir.) File Name: 03a04 48p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

RALPH V ASQUEZ , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-5181

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 01-00061—Curtis L. Collier, District Judge.

Argued: September 9, 2003
Decided and Filed: December 19, 2003

Befor e: MOORE a

nd GILMAN , Circuit Jud ges; MI LL S, District Judge. *

_________________ COUNSEL

ARGUED: John AllenBrooks, Chattanooga, Tennessee, f or Appellan t. Perry H. Piper, ASSISTANTUNITED STATES 2 United States v. Vasquez No. 02-5181

ATTOR NEY , Chattanooga, Tennessee, for Appe llee. ON BRIE F : John Allen Brooks, Chattanooga, Tennessee, for Appellant. Paul W. Lay

mon, Jr., ASSISTANT UNITED STATES ATTORNEY, Chattan o oga, Tennessee, for Appellee.

_________________

OPINION

_________________ KAREN NELSON MOORE, Circu it Judge. The Defend ant-App ellant, Ralph Vas quez (“V asquez”) , appea ls the district court’s determination of his base offense level under United States Sentencing Guideline (“U.S.S.G.”) § 2D1.1(c )(4) for conspir ing to dis tribute 1. 3608 kilog rams (three pounds) of a mi xtu re or su bstan ce cont ainin g a de tec tableamount of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). On a ppea l, Vasquez argues that the district court erred in deter mini ng his ba se offense level due to that cour t’s misapplication of U.S.S.G. § 2D1.1 , Application Note 12 (“Note 12”), rega rding the quantity of controlled substance to be used in determining the offense level for an offense involving an ag reement to sell a controlled

substanc e. Vasqu

ez argu es that un der Note 12, the addi tional two pounds of methamphetamine that Charl ie Ros e (“Rose”), a co-de fen dant, and Vasquez agreed to deliver should not have b een con sidered in deter minin g Va squez’s b ase offense

level be cause V asquez wa s not rea sonably capab l e of provid

ing the a dditional t

wo pounds d

ue to his imminentarrest. For the reasons discussed be low, we AFFIRM the sente nce impos ed by

the distri ct court

. I. BACKGROUND

The facts of this case are not in dispute. I n March 2 0 01, agents with t he Tennessee Bureau of I nvestigation (“TBI ”) received informat ion from a

confide ntial informant (“ CI”) that Rose could deliver

methamphetamine. The CI arrangedNo. 02-5181 United States v. Vasquez 3

to purchas e one pou

nd of methampheta

mine from Rose and to have it deliver ed in Meigs County, Tenne ssee. On March 19, 2001, the CI and an undercove r TBI ag ent met Rose at a desi gnated

residence in

Meigs County. Additional TBI ag ents monitored the transaction.

WhenRose arr

ived at the residenc e, he was accompanied by Vasquez. Previousl

y, i n Dalt on, Georgia, Eric Estrada (“Estrada”) had “fr

onted” the meth a mphetamine that Rose

w as to deliver in Meigs County. Estra da had sent hi s associate, Vasquez, along with Rose on the March 1 9, 200 1 transaction to ensure that Rose deliv ered th e methamphetamine a

nd that Est

rada re ceived p ay

ment.

At the res iden ce in Meigs County, Rose a nd Vasquez negot iatedto sell an additional two pounds o f methamphetam ine t o the CI . Rose and Vasquez to ld the CI t hat th ey would deliver the additional two pounds of methamphetamine for

$20,000 a

t a later date. Then, Rose and Vasquez delivered t he ori gi nal one pound o f methamphetamine in exchange for $11, 50 0. Immediately thereafter, TBIagents arrested Rose and Vasquez. W hen TBI agents searched the car that Rose and Vasquez usedto travel to Meigs County, they

found a lo aded Colt . 45 in plain view.

OnApril11, 2001, Vasquez and two co-conspirators were cha rged in a three-count Indic

tment. On May 22, 2001, a Super seding Indic

tment add

ed three additi onal co

conspirator s

. In Cou

nt One of the Superseding I

ndictmen t, Vasquez and fi v e co-conspirators were charg ed with conspiringto d istri bute five hundred grams or more of a mixture or substance containing a detectable a moun t of methamphetamine, in vio lation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). I n Count Two, Vasquez and two co-conspirators were charged with distri

buting f ifty gramsor more of a mixture

or substa

nce con taining a detectable amount of methamphetamine on or about March 19, 2001, i

n violation of 2 1 U. S. C. §§ 8 41( a)( 1) a nd 8 41( b)( 1)( B). In CountThree, Vasquez and two co-conspirators werecharged 4 United States v. Vasquez No. 02-5181

1 During March 2001 , th e Georgia Bureau of Invest igat ion (“ GBI”) investi gated Estr ada and Hect or Garni ca (“ Garni ca”). On March 12, 2001, Estrada sold one-half of a pound of methamphetamine to a Ge orgia CI. Then, on

March 16 , 2001 , Estr ada and Brauli o Garnica (“ Braulio”) de livere d an add itio na l o ne pou nd of met ha mph et ami ne to th e CI

. On March 18, Estra da a rra nged to deliver two pounds of methamphetamine to the same CI for $19,000 . On M arch 24, 2001 , Braulio delivered the two pounds of metha mphetamine t o the CI f or Estrada. Estrada, Garnica, and M elinda Knig ht were also p resen t at that de livery. with knowingly a

nd intentionally ca

rryin g a fir earm in relation to the drug trafficking

offense s set out in

Counts One and Two, in violation of 18 U.S.C. §§ 2 and 924( c). On September

6, 2001, Vasquez pleaded guilt y to Counts One and Three of the Superseding I ndictment pursuant to a written plea agreement. Co unt Two was dismissed upon motion by the government. On January 4, 2002, Vasquez was se ntenced to 101 months’ imprisonment (forty-one mon ths on Count One and sixty months on Count Thr ee ) and four years of supervised

release. At the sentencing hea ring, Vasquez objected to the amo

unt of methampheta

mi ne u sed to determine his b ase off

ense l evel, arguin g that he was not
reasona bly capable of delivering the additional two pounds of methamphetamine d

ue to his imm

inent ar rest.

Inresponse

to Vasquez’s objection, the government argued that under Note 12, the ad diti onal two pounds of methamph et amine that Rose and Vasquez agreed to deliver should be consid

ered in d etermini ng Vasq uez’s bas e offen se level because

Vasquez agreed to deliver, intended to deliver, and was reasonably

capable of delive r ing the additional two pounds of methamphetamine. The government supporte d its argument that Vasquez was reasonably capable of obtaining and delivering the additional methamphetamine by show i ng that during the same month, Estra da , Rose’s and Vasquez’s supplier, engag ed in

transactions for one-half of a pound, one pound, and two pounds of methamphetamine. 1No. 02-5181 United States v. Vasquez 5

The district court ov erru led Vasquez’s objection and accepted the calculations containe d in the Presentence Report (“PSR”). The PSR used the additional two poun ds of methamphetamine that Rose and Vasqu ez agreed to deliver and the one pound of m ethamphetamine that Rose and Vasquez actually

delivered

to determine V asquez’ s base off ens e le vel . In accordancewith the PSR, the district court set Vasquez’s base offense level for Co un t O ne at le ve l t hi rt ytwo. Vasquez received a minor role reduction

of two levels, making his adjuste d offens e level th ir ty f or Count One. Ad di ti on al ly, Vasquez received a three-leve l adj ustment for acceptanceof responsibility, making his total of

fense le vel a twenty-seve

nfor Count

One. The

district c ourt also

granted do wnward

departures of four levels for the g overnment’s § 5K1.1 motio

n and th ree levels for Vasquez’s testimony a t the sentencing hearing. These downward departures reduced Vasquez’s offense

level to twenty

and resu lted in a sentencing guideline range of forty

-one to fi fty-on e months for Count One. The distr

ict cour t s entenced Vasquez at the lower end of the range, to forty

-one months’ imprisonment on Count One. In hi s brief, Vasquez points out that if the additional two pounds of

methamphetamine were not used to determine Vasquez’s base off

enselevel, Vasquez’s of

fense le vel would have been ei ghte en, with a sentencing guideline ra nge of thirty -three to forty -one mont

hs. Vasquez ti me ly appeale d his sente nce. On a

ppeal, Vasquez’s only

argume nt is that the d

istrict c ourt err

ed in its determination

of his b ase offe nse level due to that court’s misapplicationof

Note 12. Vasquez argues that he was not
reasona bly capable of delivering the additional two pounds of methamphetamine due to hi s imminent arrest and thus that Note 12 requi r es the exclusion of the additional two pounds from the d

etermina tion of his b ase off

ense lev el. 6 United States v. Vasquez No. 02-5181

II. ANALY SIS

A. Jurisdiction

The district c ourt had j urisdicti on pursua nt to 18 U.S. C. § 3231 because Va sque z was cha rged w ith offen ses aga

inst the laws of

the United States. This court has jurisdiction over the appeal u

nder 28 U .S.C. § 1291 and 18 U.S .C. § 3742(a) (2) bec auseVasquez is appealing the district court’s final sentenc e on the g

round tha t it was i mposed through an incorre ct applic ation of the guide lines.

B. Standard of Review

This cour

t reviews for clear error “the district court’s determination

of the quantity of drug s attributabl e to def endant for sentencing purposes.” United Sta te s v

. Ukomadu , 236 F.3d 333, 341 (6th Cir. 2001). “[A] finding is clearly erroneous when although there is evidenc e to support it, the reviewing court on the entir e evidence is left with the definite and firm conviction that a mistake has be en committed.” Andersonv. City of B esseme r Ci ty , 470 U.S. 564, 573 (1 985) ( quot ing United States v. Unit ed States Gypsum Co. , 333 U.S. 364, 395 (1948)) (internal quotation marks omitted). A review ing cou rt may not reve rse a finding of the trier of fact

merely bec ause it would have decided the matter differently. Id

. Rather, “[i]f the district court’s
acco unt of the evidence is plausible in light of the record viewed in its entir

ety , the cour

t of appe als may

not reve rse it even t hough convinced that had it been sitting as thetrier of fact, it would have weighed the evidence differently .” Id . at 573-74.

C. Deter minatio n of Vasquez’s Base Offense Level Under Note 12

Inthis case, determination of th e quan tity of d rugs attributa ble to Vasquez turns upon proper application of Note 12, w

hich prov ides:No. 02-5181 United States v. Vasquez 7

Inan offe nse involving an agreement to sell a controlled substance, the agreed-upon qua n tity of the controlled substance shall be used to determine the offense level unless the sale

is c o mpleted and the amount delivered
more accurately

reflects the scale of the offense . . . . If, however, the defendant establishes that he or she did not intend to provide , or was not reasonably capable of p rovid ing, the agreed-upon quantity of the controlled substance, the court

shallexclude from the offense level deter mination the amount of controlled substance t hat th e defe ndant establishes that he

or she did

not intend t o provi de or wa s not reason ably capab le of p rovid ing.

U.S.S.G. § 2D1.1, cmt. n.12 (2001). The partie s agree that for an off ense in volving an agreement to sell a controlled substance that is notcomplete d, Note 12require s that cou rts
us e th e agre ed-upon

quantity to deter mine the o ffense

level, unless the defendant did not intend to provide or was not
rea sonab ly

ca pa bl e o f p ro vi di ng th e a gr ee d- up on qu an ti ty. Alth ough Vasqu ez correctly points out that there

is a circ uit split regar ding whi ch party

has th e burden of proof under Note 12, the Sixth Ci

rcuit pla ces the b urden on the defe ndant. United State s v. Munoz , 233 F.3d 410, 415 (6th Cir. 2000). “The Sixth Circuit has held tha t ‘o nce the government satisfies its burde

n in estab li shing a negotiated amount, the defenda nts have the burden of proving they were no t capabl e of p ro ducing that amount.’” Id . (quo ting United States v. Christian , 942 F.2d 363, 368 (6th Cir. 1991)).

Inthis case, V asquez doe s not disput e that he agree d to sell the additiona

l two pound s of met hamphetamine and that he intended to do so. Vasquez only disputes the district court’s finding that he was reasonab ly capable of providing the additional two pounds of methamphetamine. Thus, Vasquez argues tha t t he distric

t court c ommitted c lear er ror whe n it included the additional two pounds in the determination of h is base off ense lev el. 8 United States v. Vasquez No. 02-5181

2 The go vern ment also points t o Vasquez’s admission at the

s entenci ng hearin g that ther e is evid ence show ing that V asqu ez co uld

com plete the transa ct ion. Sp ecifically, the gove rnme nt cites V asqu ez’s

cou nsel’s statement t

hat “[t] here is no evidence to show that [defendant and Rose] couldn’ t have pr ovided the two p ound s. In fact, ther e is evidence to show th at they could have p rovid ed two pou nds.” App ellee’s Br. at 11 (quoting Joint Appendix (“J.A.”) at 65 (Sentencing Hr’g Tr.)). Vasquez h a s the burden of proving that he was not
reasona bly capable of providing the additional two pounds of methamphetamine. Munoz , 233 F.3d at 415. Vasquez relies
onthe following facts in an effort to demonstrate that he was notrea sona bly capable

of providing the additional two pounds: (1) two TBI a

gents w ere insid

e the r esidenc e in Meigs County when the

transaction occu

rred; (2 ) TBI

agents installed listening

devices inthe ho use prior to the trans a ction; (3) TBI agents arranged to have Vasquez and Ro se arrested immediately a fter they br

ought the methamphetamine mix tu re into the home (demonstrated by the fact tha

t a TBI agent e xchange d a bag

with no mone

y in it for the methamphetamine); (4) Rose and Vasquez were not permitted to leave the residence; and (5) the CI negotiated the transaction

with “full knowledge” that Vasquez w ould be unable to complete the transaction. In essence , Vasquez argues that he was not reasonably capable of providing the additional methamphetamine b ecause TBI agents planned to, and did , arrest Vasquez imme diately after the agre ement; ther efore, he had no opportunity to obtain or delive r th e additional methamphetamine.

The government

counters that the district

court did not err when it included the additiona l tw o pounds o f methamphetamine in its dete rmination of Vasquez’s base offense level

. To demons trate tha t Vasque z was rea sonably capable of providing the additional two pou nds, t he government points to the fact that during thesame month as Vasquez’s arrest, Vasquez’s supplier e n gaged in monitored transactio ns of one-half of a pound, one pound, and two p ound s of methamphetamine. 2 The government argue s thatNo. 02-5181 United States v. Vasquez 9

Vasquez was reasonably

capable of providing the additional

m ethamphetamine because during the same month Vasquez ’ s supplier was eng aging

in tr a nsaction s of up to two pounds. Thus, if Vasquez had not been arrested, Vasquez could have obtained and delivered the additional methamphetamine.

We are aw are tha

t in case s such as t

his, when

th e government

conducts an undercover operation andmakes a suggestion

to th e def

endant a bout futur

e transa ctions, increasing

a defendant’s sentence

based upon

an agr eement to sell a contr

oll ed substa

nce mig ht tempt la

w enfor cement to sug gest additiona

l transac tions involv

ing lar ge qua ntities o f drugs merely to es cala

te the defendant’s potential sentence. Inan extreme

case, la w enfor cement o ffic ia ls could su gges t additional sales of drug quantities so out of proportion to the defendant’s normal c ourse of dealing s that it wo

uld be unf

air to sentenc e th e defendant based upon that amount. The langua ge of Note

12, however, protects defen dants fr om this possible abus e. Note 1 2 instructs the sen tencing court to “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 c apable of providing.” U.S.S.G. § 2D1.1, cmt. n.12 (2001).

We have clearly

articulated that once the government esta blis hes the agreed-upon quantity, the defendant has the bur den of p roving t

hat he or she eithe

r did not in

tend to provide or was not

reason ably capa

ble of providing that amount. Munoz , 233 F.3d at 415. However, we have not yet given the district co ur ts much guidance regar ding what factors th ey s hou ld consider when deciding whether the defendant has met his or her burden.

We agree with the Third Circuit’s conclusion that the factors that district courts should c onside r when deciding whether a defendant has met

his or her burden vary

somewhat according to the role the defendant was ex pec ted to pla

y in the future transaction. United States v. Raven , 3 9 F.3d 428, 436 (3d Cir. 1994). In Raven , the Third Circuit stated that “to 10 United States v. Vasquez No. 02-5181

apply the princ iple embo died in No te 12, the focus must shift according to adefendant’s role in the offense.” Id

. The court further explained that “[w]hen the defendant is a drug buy

er, Note 12 wo ul d a dd re ss th e q ua nt it y o f d rugs that the defendant intended to purchas e and wa s reasonably capable of purchasing. And

where . . . a defendant has been convicted
o f conspiring to transport drugs, the proper f ocus is th e quantity of drugs the defendant intended to transport and was reasona bly capable of transporting.” Id . at 437. ( internal ci tations omitted). Thus, in cases such as this, where t h e defendant acted as an emissary f

or a particular drug supplier, the fact that the suppli er was engaging in transactions involving similar qu

antities of the drug at issue during the
same time period can be probative e v idence that the defendant
was rea sonably

capable of provid ing that amount.
Ad di ti on al ly, there are some factors that are indicative of a defendant’s intent an

d capab ility

regar dless of his or

her role in the tran saction. When apply ing Note 12, other

circuits have considered factors such as: whether the de fendant engaged in serious negotiations rather than mere“idle talk,” whether the defendant participated in similar transactions on pr i or occasions, and whether the defendant he sitated before agreeing to the transaction. United Sta tes v. W ash , 231 F.3d 366, 373 (7th Cir. 2000), cert. denied, 532 U.S. 1057 (2001); United States v. Haz ut , 140 F.3d 187, 193 (2d Cir. 1998); United States v. Williams , 109 F.3d 502, 512 ( 8th

Cir.), cert. denied , 522 U.S. 91 7 (1997); United Sta te s v. H endrickson , 26 F.3d 321, 337 (2d

Cir. 1994), further proceedings at , No. 95-1483, 1996 WL 508453 (Sept. 9, 1996), cert. denied, 520 U.S. 1129 (1997). Although increasing a de fenda nt ’s sentence based upon an agreement to sell a contr olled substance might tempt law enforcement to sugge st additional sales of large quantities of d ru gs merely

to escalate the defendant’s potential sentence, district courts can ensure that defenda nts are not sentenced based upon qua ntities fa r outside of their normal course of

dealings by

carefully evaluating the
ev id en ce pe rt ai ni ng to th e d ef en da nt ’s in te nt an d c ap ab il it y.No. 02-5181 United States v. Vasquez 11

3 In Ukomadu , the det ermi nati on of the quan tity of drug s attributa ble to the defendant for sent encing purposes was cont ro lled by a diff erent pr o vis ion of the U .S.S.G . than is invo lved in the pre sent ca se. United States v. Ukomadu , 236 F.3d 333 , 340 (6th C ir. 200 1). In Ukomadu , the parti es dis puted the qu antity of dr ugs a ttribu tabl e to adefe ndant for jointly unde rtaken crimina l activity, w hich tur ns on U.S.S. G. § 1B1.3, Ap plic ati on No te 2. Id . Despite the dif ference in applicat ion notes, t he policy rationale underly ing thi s court’s decis ion in Ukomadu – to disregard the int ervention by law enforcement when determining t he qua ntity of dru gs attribu table to a defe nda nt – is eq ually ap plicab le in this

case. Applying the fact ors articu lated above, we conclude that the district court did not commit c lear er

ror whe n it deter min e d that Vasquez wa s rea sonably capa ble of providing the additional two pounds of methamphetamine. Vasquezwas to
a ct as an emissary for his supplier in the a greed-upon transaction; theref

ore, the fact tha t Vasq uez’s supplier was engaging in transactions of up to two po unds of

m ethamphetamine demonstrates that Vasquez could have obtained the additional methamphetamine. Furthermore, the factual background contained in the PSR, which was adopted by the distri ct court , indicat es that Va squez eng aged in serious negotiations rather than mere idle talk and that Vasquez did not hesitate befo re ag reeing to the transaction. The only circum stance that prevented Vasquez from ob taining and delivering the additional methamphetamine washis own arrest immediately after

he agre ed to provide the additional two pound s. In the conte xt o f appl ying No te 12, however, this court has held that

when the fortuitous intervention of law enforcement

alters the d rug qua

ntity , the def

endant sh ould still be held responsible for the entireamount. Ukomadu , 236 F.3d at 341.

In Ukomadu , custo ms off icial s int ercept ed a pac kage
c o ntaining 293.3 gr

ams of he

roin and r

emoved a ll but six grams. Id . at 340. 3 When the package cam e i nto the possessionof the def

endant, it contained only six gra ms of heroin. Id

. We upheld an offense level determination based 12 United States v. Vasquez No. 02-5181

4 Chris ti an was decided under an earlier ve rsi on of t his appli cati on note, whi ch re ad: “ [W]here t he cour t f inds tha t t

he def enda n t di d not intend to produce and was n ot re ason ably capable of producing the negoti ated amo unt, the court shal l ex clude fr om the gui deli ne cal culati on the amount that it finds the d efend ant did not inten d to produce and was not reaso nab ly c a pable of produci ng.” United Stat es v. Chris ti an , 942 F.2d 363, 368 ( 6th Ci r. 1991) (quot ing the n appl icabl e U.S. S.G. § 2D1. 4, cmt. n. 1) ( emp h ases add ed) (internal quo tation marks om itted). Thus, under the earli er version, t he defendant was required to prove both th at he

or s he did not i ntend t o provide and that he o r she wa s not re ason ably cap able of pro viding the neg otiated amo unt. Id . In 1995, the Guideli nes
were ame nde d and th e pre requis ites for excl usion of the neg otiat ed amount were changed from the conjunctive to the d is ju nc ti ve

. U.S .S .G. § 2D 1.1, c mt. n.12 (2001). Thus, under the current versi on, the defendant need only pro ve eithe r that he o r she d id no t intend to provide or that he

or she wa s not ca pab le of pr ovid ing the ne gotiate d am ount. Id . In spite of this a lteration , the sho wing a d efend ant mu st make to satisfy th e “reasona bly capabl e” prong remai ns th e same. uponthe entire 293.3 grams, noting that intervention by law enforce me ntshould not alter the amount for which the defendant is held responsible. Id . at 341. Sim ilarly, in Christian , the defendant engag ed in a tra nsact ion involving cocaine that was mo ni tored by law e nforcement agents, and the defendant was arrested immediately thereafter. 4 942 F.2d at 365. During the tra

nsact ion, the defendant discussed the possibility

of future deals and stated t hat for the first two or three weeks, he would pu rchase about fiv e kil ogramsper week. Id . We upheld

an offe nse le vel determination based uponten kilograms, the amount negotiat ed fo r the future deals, rejecting the defendant’s contention that there was no evidence that he was capable of pu rchasing the two, fivekilogram amounts he had negotiated. Id . at 368.

In Ukomadu , we articulated ou r rationale for basing the of fens e leve l dete

rmina tion on the

entir e dru g qua ntity . We sought to avoid for cing of ficials

to choose between s e curing appropriately significant senten c es for captured dr ug offe nders an d alternatively reduci ng the quantity of illega l drugs in the stream

o fNo. 02-5181 United States v. Vasquez 13

commerce. It is better policy to p ermi t officia

ls to
remove dange

rous drug s from th e market without jeopardizing significant sentences for offende rs where it is clear that the or

iginal a mount of dr

ugs was within the scope of activity tha

t the defendant jointly under took.

Ukomadu , 236 F.3d at

34 1. As the governme

nt points ou

t, this same ra

tionale a pplies in th

is case because the defenda nt failed to prove that, but for the intervention by law enforcem e nt, Rose and Vasquez would not have been
reasona bly capabl e of del iveri ng the a dditional t wo pounds. We agreewith the g overnme nt that “it is untenable to require lawenforc ement ag ents 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. CONCL USION

Becau se the district court did not com

mit clear error when it included the addition a l two pounds of methamphetamine that Vasquez agree d to delive r in calcula ting his b ase off

ense level, we AFFIRM

the sentenc e imposed

by t he distric t court.