*

The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0448P (6th Cir.)

File Name: 03a0448p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RALPH VASQUEZ,

Defendant-Appellant.

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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 

Before: MOORE and GILMAN, Circuit Judges; MILLS,

District Judge.*

_________________

COUNSEL

ARGUED: John Allen Brooks, Chattanooga, Tennessee, for

Appellant. Perry H. Piper, ASSISTANT UNITED STATES

2 United States v. Vasquez No. 02-5181

ATTORNEY, Chattanooga, Tennessee, for Appellee.

ON BRIEF: John Allen Brooks, Chattanooga, Tennessee,

for Appellant. Paul W. Laymon, Jr., ASSISTANT UNITED

STATES ATTORNEY, Chattanooga, Tennessee, for

Appellee.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. The

Defendant-Appellant, Ralph Vasquez (“Vasquez”), appeals

the district court’s determination of his base offense level

under United States Sentencing Guideline (“U.S.S.G.”)

§ 2D1.1(c)(4) for conspiring to distribute 1.3608 kilograms

(three pounds) of a mixture or substance containing a

detectable amount of methamphetamine, in violation of

21 U.S.C. §§ 846 and 841(b)(1)(B). On appeal, Vasquez

argues that the district court erred in determining his base

offense level due to that court’s misapplication of U.S.S.G.

§ 2D1.1, Application Note 12 (“Note 12”), regarding the

quantity of controlled substance to be used in determining the

offense level for an offense involving an agreement to sell a

controlled substance. Vasquez argues that under Note 12, the

additional two pounds of methamphetamine that CharlieRose

(“Rose”), a co-defendant, and Vasquez agreed to deliver

should not have been considered in determining Vasquez’s

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.

I. BACKGROUND

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”)

that Rose could deliver methamphetamine. The CI arranged
No. 02-5181 United States v. Vasquez 3

to purchase one pound of methamphetamine from Rose and

to have it delivered in Meigs County, Tennessee. On

March 19, 2001, the CI and an undercover TBI agent met

Rose at a designated residence in Meigs County. Additional

TBI agents monitored the transaction.

When Rose arrived at the residence, he was accompanied

by Vasquez. Previously, in Dalton, Georgia, Eric Estrada

(“Estrada”) had “fronted” the methamphetamine that Rose

was to deliver in Meigs County. Estrada had sent his

associate, Vasquez, along with Rose on the March 19, 2001

transaction to ensure that Rose delivered the

methamphetamine and that Estrada received payment.

At the residence in Meigs County, Rose and Vasquez

negotiated to sell an additional two pounds of

methamphetamine to the CI. Rose and Vasquez told the CI

that they would deliver the additional two pounds of

methamphetamine for $20,000 at a later date. Then, Rose and

Vasquez delivered the original one pound of

methamphetamine in exchange for $11,500. Immediately

thereafter, TBI agents arrested Rose and Vasquez. When TBI

agents searched the car that Rose and Vasquez used to travel

to Meigs County, they found a loaded Colt .45 in plain view.

On April 11, 2001, Vasquez and two co-conspirators were

charged in a three-count Indictment. On May 22, 2001, a

Superseding Indictment added three additional coconspirators. 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

methamphetamine, in violation of 21 U.S.C. §§ 846,

841(a)(1), and 841(b)(1)(A). In Count Two, Vasquez and two

co-conspirators were charged with distributing fifty grams or

more of a mixture or substance containing a detectable

amount of methamphetamine on or about March 19, 2001, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). In

Count Three, Vasquez and two co-conspirators were charged

4 United States v. Vasquez No. 02-5181

1

During March 2001, the Georgia Bureau of Investigation (“GBI”)

investigated Estrada and Hector Garnica (“Garnica”). On March 12,

2001, Estrada sold one-half of a pound of methamphetamine to a Georgia

CI. Then, on March 16, 2001, Estrada and Braulio Garnica (“Braulio”)

delivered an additional one pound of methamphetamine to the CI. On

March 18, Estrada arranged to deliver two pounds of methamphetamine

to the same CI for $19,000. On March 24, 2001, Braulio delivered the

two pounds of methamphetamine to the CI for Estrada. Estrada, Garnica,

and Melinda Knight were also present at that delivery.

with knowingly and intentionally carrying a firearm in

relation to the drug trafficking offenses set out in Counts One

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

September 6, 2001, Vasquez pleaded guilty to Counts One

and Three of the Superseding Indictment pursuant to a written

plea agreement. Count Two was dismissed upon motion by

the government. On January 4, 2002, Vasquez was sentenced

to 101 months’ imprisonment (forty-one months on Count

One and sixty months on Count Three) and four years of

supervised release. At the sentencing hearing, Vasquez

objected to the amount of methamphetamine used to

determine his base offense level, arguing that he was not

reasonably capable of delivering the additional two pounds of

methamphetamine due to his imminent arrest.

In response to Vasquez’s objection, the government argued

that under Note 12, the additional two pounds of

methamphetamine that Rose and Vasquez agreed to deliver

should be considered in determining Vasquez’s base offense

level because Vasquez agreed to deliver, intended to deliver,

and was reasonably capable of delivering the additional two

pounds of methamphetamine. The government supported its

argument that Vasquez was reasonably capable of obtaining

and delivering the additional methamphetamine by showing

that during the same month, Estrada, Rose’s and Vasquez’s

supplier, engaged in transactions for one-half of a pound, one

pound, and two pounds of methamphetamine.1
No. 02-5181 United States v. Vasquez 5

The district court overruled Vasquez’s objection and

accepted the calculations contained in the Presentence Report

(“PSR”). The PSR used the additional two pounds of

methamphetamine that Rose and Vasquez agreed to deliver

and the one pound of methamphetamine that Rose and

Vasquez actually delivered to determine Vasquez’s base

offense level. In accordance with the PSR, the district court

set Vasquez’s base offense level for Count One at level thirtytwo. Vasquez received a minor role reduction of two levels,

making his adjusted offense level thirty for Count One.

Additionally, Vasquez received a three-level adjustment for

acceptance of responsibility, making his total offense level a

twenty-seven for Count One. The district court also granted

downward departures of four levels for the government’s

§ 5K1.1 motion and three levels for Vasquez’s testimony at

the sentencing hearing. These downward departures reduced

Vasquez’s offense level to twenty and resulted in a sentencing

guideline range of forty-one to fifty-one months for Count

One. The district court sentenced Vasquez at the lower end

of the range, to forty-one months’ imprisonment on Count

One. In his brief, Vasquez points out that if the additional

two pounds of methamphetamine were not used to determine

Vasquez’s base offense level, Vasquez’s offense level would

have been eighteen, with a sentencing guideline range of

thirty-three to forty-one months.

Vasquez timely appealed his sentence. On appeal,

Vasquez’s only argument is that the district court erred in its

determination of his base offense level due to that court’s

misapplication of Note 12. Vasquez argues that he was not

reasonably capable of delivering the additional two pounds of

methamphetamine due to his imminent arrest and thus that

Note 12 requires the exclusion of the additional two pounds

from the determination of his base offense level.

6 United States v. Vasquez No. 02-5181

II. ANALYSIS

A. Jurisdiction

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231 because Vasquez was charged with offenses against

the laws of the United States. This court has jurisdiction over

the appeal under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a)(2) because Vasquez is appealing the district court’s

final sentence on the ground that it was imposed through an

incorrect application of the guidelines.

B. Standard of Review

This court reviews for clear error “the district court’s

determination of the quantity of drugs attributable to

defendant for sentencing purposes.” United States v.

Ukomadu, 236 F.3d 333, 341 (6th Cir. 2001). “[A] finding is

clearly erroneous when although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.” Anderson v. City of Bessemer City, 470 U.S.

564, 573 (1985) (quoting United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948)) (internal quotation

marks omitted). A reviewing court may not reverse a finding

of the trier of fact merely because it would have decided the

matter differently. Id. Rather, “[i]f the district court’s

account of the evidence is plausible in light of the record

viewed in its entirety, the court of appeals may not reverse it

even though convinced that had it been sitting as the trier of

fact, it would have weighed the evidence differently.” Id. at

573-74.

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

In an offense involving an agreement to sell a controlled

substance, the agreed-upon quantity of the controlled

substance shall be used to determine the offense level

unless the sale is completed 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

providing, the agreed-upon quantity of the controlled

substance, the court shall exclude from the offense level

determination the amount of controlled substance thatthe

defendant establishes that he or she did not intend to

provide or was not reasonably capable of providing.

U.S.S.G. § 2D1.1, cmt. n.12 (2001). The parties agree that

for an offense involving an agreement to sell a controlled

substance that is not completed, Note 12 requires that courts

use the agreed-upon quantity to determine the offense level,

unless the defendant did not intend to provide or was not

reasonably capable of providing the agreed-upon quantity.

Although Vasquez correctly points out that there is a circuit

split regarding which party has the burden of proof under

Note 12, the Sixth Circuit places the burden on the defendant.

United States v. Munoz, 233 F.3d 410, 415 (6th Cir. 2000).

“The Sixth Circuit has held that ‘once the government

satisfies its burden in establishing a negotiated amount, the

defendants have the burden of proving they were not capable

of producing that amount.’” Id. (quoting United States v.

Christian, 942 F.2d 363, 368 (6th Cir. 1991)).

In this case, Vasquez does not dispute that he agreed to sell

the additional two pounds of methamphetamine and that he

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

argues that the district court committed clear error when it

included the additional two pounds in the determination of his

base offense level.

8 United States v. Vasquez No. 02-5181

2

The government also points to Vasquez’s admission at the

sentencing hearing that there is evidence showing that Vasquez could

complete the transaction. Specifically, the government cites Vasquez’s

counsel’s statement that “[t]here is no evidence to show that [defendant

and Rose] couldn’t have provided the two pounds. In fact, there is

evidence to show that they could have provided two pounds.” Appellee’s

Br. at 11 (quoting Joint Appendix (“J.A.”) at 65 (Sentencing Hr’g Tr.)).

Vasquez has the burden of proving that he was not

reasonably capable of providing the additional two pounds of

methamphetamine. Munoz, 233 F.3d at 415. Vasquez relies

on the following facts in an effort to demonstrate that he was

not reasonably capable of providing the additional two

pounds: (1) two TBI agents were inside the residence in

Meigs County when the transaction occurred; (2) TBI agents

installed listening devices in the house prior to the

transaction; (3) TBI agents arranged to have Vasquez and

Rose arrested immediately after they brought the

methamphetamine mixture into the home (demonstrated by

the fact that a TBI agent exchanged a bag with no money 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 would be

unable to complete the transaction. In essence, Vasquez

argues that he was not reasonably capable of providing the

additional methamphetamine because TBI agents planned to,

and did, arrest Vasquez immediately after the agreement;

therefore, he had no opportunity to obtain or deliver the

additional methamphetamine.

The government counters that the district court did not err

when it included the additional two pounds of

methamphetamine in its determination of Vasquez’s base

offense level. To demonstrate that Vasquez was reasonably

capable of providing the additional two pounds, the

government points to the fact that during the same month as

Vasquez’s arrest, Vasquez’s supplier engaged in monitored

transactions of one-half of a pound, one pound, and two

pounds of methamphetamine.2 The government argues that
No. 02-5181 United States v. Vasquez 9

Vasquez was reasonably capable of providing the additional

methamphetamine because during the same month Vasquez’s

supplier was engaging in transactions of up to two pounds.

Thus, if Vasquez had not been arrested, Vasquez could have

obtained and delivered the additional methamphetamine.

We are aware that in cases such as this, when the

government conducts an undercover operation and makes a

suggestion to the defendant about future transactions,

increasing a defendant’s sentence based upon an agreement to

sell a controlled substance might tempt law enforcement to

suggest additional transactions involving large quantities of

drugs merely to escalate the defendant’s potential sentence.

In an extreme case, law enforcement officials could suggest

additional sales of drug quantities so out of proportion to the

defendant’s normal course of dealings that it would be unfair

to sentence the defendant based upon that amount. The

language of Note 12, however, protects defendants from this

possible abuse. Note 12 instructs the sentencing 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 capable of

providing.” U.S.S.G. § 2D1.1, cmt. n.12 (2001).

We have clearly articulated that once the government

establishes the agreed-upon quantity, the defendant has the

burden of proving that he or she either did not intend to

provide or was not reasonably capable of providing that

amount. Munoz, 233 F.3d at 415. However, we have not yet

given the district courts much guidance regarding what

factors they should 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 consider when deciding

whether a defendant has met his or her burden vary somewhat

according to the role the defendant was expected to play in

the future transaction. United States v. Raven, 39 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 principle embodied in Note 12, the focus must shift

according to a defendant’s role in the offense.” Id. The court

further explained that “[w]hen the defendant is a drug buyer,

Note 12 would address the quantity of drugs that the

defendant intended to purchase and was reasonably capable

of purchasing. And where . . . a defendant has been convicted

of conspiring to transport drugs, the proper focus is the

quantity of drugs the defendant intended to transport and was

reasonably capable of transporting.” Id. at 437. (internal

citations omitted). Thus, in cases such as this, where the

defendant acted as an emissary for a particular drug supplier,

the fact that the supplier was engaging in transactions

involving similar quantities of the drug at issue during the

same time period can be probative evidence that the defendant

was reasonably capable of providing that amount.

Additionally, there are some factors that are indicative of a

defendant’s intent and capability regardless of his or her role

in the transaction. When applying Note 12, other circuits

have considered factors such as: whether the defendant

engaged in serious negotiations rather than mere “idle talk,”

whether the defendant participated in similar transactions on

prior occasions, and whether the defendant hesitated before

agreeing to the transaction. United States v. Wash, 231 F.3d

366, 373 (7th Cir. 2000), cert. denied, 532 U.S. 1057 (2001);

United States v. Hazut, 140 F.3d 187, 193 (2d Cir. 1998);

United States v. Williams, 109 F.3d 502, 512 (8th Cir.), cert.

denied, 522 U.S. 917 (1997); United States v. Hendrickson,

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 defendant’s

sentence based upon an agreement to sell a controlled

substance might tempt law enforcement to suggest additional

sales of large quantities of drugs merely to escalate the

defendant’s potential sentence, district courts can ensure that

defendants are not sentenced based upon quantitiesfar outside

of their normal course of dealings by carefully evaluating the

evidence pertaining to the defendant’s intent and capability.
No. 02-5181 United States v. Vasquez 11

3

In Ukomadu, the determination of the quantity of drugs attributable

to the defendant for sentencing purposes was controlled by a different

provision of the U.S.S.G. than is involved in the present case. United

States v. Ukomadu, 236 F.3d 333, 340 (6th Cir. 2001). In Ukomadu, the

parties disputed the quantity of drugs attributable to a defendant for

jointly undertaken criminal activity, which turns on U.S.S.G. § 1B1.3,

Application Note 2. Id. Despite the difference in application notes, the

policy rationale underlying this court’s decision in Ukomadu – to

disregard the intervention by law enforcement when determining the

quantity of drugs attributable to a defendant – is equally applicable in this

case.

Applying the factors articulated above, we conclude that the

district court did not commit clear error when it determined

that Vasquez was reasonably capable of providing the

additional two pounds of methamphetamine. Vasquez was to

act as an emissary for his supplier in the agreed-upon

transaction; therefore, the fact that Vasquez’s supplier was

engaging in transactions of up to two pounds of

methamphetamine demonstrates that Vasquez could have

obtained the additional methamphetamine. Furthermore, the

factual background contained in the PSR, which was adopted

by the district court, indicates that Vasquez engaged in

serious negotiations rather than mere idle talk and that

Vasquez did not hesitate before agreeing to the transaction.

The onlycircumstance that prevented Vasquez from obtaining

and delivering the additional methamphetamine was his own

arrest immediately after he agreed to provide the additional

two pounds. In the context of applying Note 12, however,

this court has held that when the fortuitous intervention of law

enforcement alters the drug quantity, the defendant should

still be held responsible for the entire amount. Ukomadu, 236

F.3d at 341.

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

possession of the defendant, it contained only six grams of

heroin. Id. We upheld an offense level determination based

12 United States v. Vasquez No. 02-5181

4

Christian was decided under an earlier version of this application

note, which read: “[W]here the court finds that the defendant did not

intend to produce and was not reasonably capable of producing the

negotiated amount, the court shall exclude from the guideline calculation

the amount that it finds the defendant did not intend to produce and was

not reasonably capable of producing.” United States v. Christian, 942

F.2d 363, 368 (6th Cir. 1991) (quoting then applicable U.S.S.G. § 2D1.4,

cmt. n.1) (emphases added) (internal quotation marks omitted). Thus,

under the earlier version, the defendant was required to prove both that he

or she did not intend to provide and that he or she was not reasonably

capable of providing the negotiated amount. Id. In 1995, the Guidelines

were amended and the prerequisites for exclusion of the negotiated

amount were changed from the conjunctive to the disjunctive. U.S.S.G.

§ 2D1.1, cmt. n.12 (2001). Thus, under the current version, the defendant

need only prove either that he or she did not intend to provide or that he

or she was not capable of providing the negotiated amount. Id. In spite

of this alteration, the showing a defendant must make to satisfy the

“reasonably capable” prong remains the same.

upon the entire 293.3 grams, noting that intervention by law

enforcement should not alter the amount for which the

defendant is held responsible. Id. at 341. Similarly, in

Christian, the defendant engaged in a transaction involving

cocaine that was monitored by law enforcement agents, and

the defendant was arrested immediately thereafter.4 942 F.2d

at 365. During the transaction, the defendant discussed the

possibility of future deals and stated that for the first two or

three weeks, he would purchase about five kilograms per

week. Id. We upheld an offense level determination based

upon ten kilograms, the amount negotiated for the future

deals, rejecting the defendant’s contention that there was no

evidence that he was capable of purchasing the two, fivekilogram amounts he had negotiated. Id. at 368.

In Ukomadu, we articulated our rationale for basing the

offense level determination on the entire drug quantity. We

sought to avoid forcing officials

to choose between securing appropriately significant

sentences for captured drug offenders and alternatively

reducing the quantity of illegal drugs in the stream of
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.