* 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: 2004 FED App . 0045P (6th C ir.) File Name: 04a00 45p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

R EGINA LD C HARLES R OSE , III, Defenda nt-Appel lant. X - - - -
> , - - - - N No. 02-5163

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 01-00061—Curtis L. Collier, District Judge. Submitted: September 9, 2003 Decided and Filed: February 11, 2004

Befor e: MOORE a

nd GILMAN , Circuit Jud ges; MI LL S, District Judge. * 2 United Sta tes v. Ros e No. 02-5163

_________________ COUNSEL

ON BRIE F: Anthony Martinez, FEDERAL DEF E NDER SERV ICES OF E AS TER N TE NNE SS EE, IN C. , Chattanooga, Tennessee, for Appe ll ant . R egi nal d R ose , III, Montgomery , Alabama, pro se.

_________________ OPINION

_________________ KAREN NELSO

N MOORE, Ci

rcuit J udge. The Defend ant-App ellant, Regina

ld Charle s Rose, I

II (“Ro s e”), appeals his convicti ons and se

ntence. Rose was convicted of conspiring to distr ibute fifty g rams or more o f methamphetamine mixture, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and of knowingly and intent ionally carry ing a firear m during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 2 and 924(c). In his pro
se brief, Rose raises several claims of error in the district court’s acceptanc e of his guilty pleas. Most of these errors aris e from discrepancies between the desc riptions of the charges in Counts One and Three as stated in the Superseding Indictment

and as stated in his written plea agreemen t. Rose’s court-a

ppointed c ounsel al so filed a n appella te brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), statingthat he has found no meritorious grounds for app eal but nonetheless ra ising two possible claims of error in the calculation of Rose’s sentence

. For the reasons set forth below, we VACATE Ro se’ s convictionand

sentenc e as to Count One and REMAND for proceedings consistent with this opinion.No. 02-5163 United Sta tes v. Ros e 3

I. JURISDI CTION

The district c ourt had j urisdicti on pursua nt to 18 U.S. C. § 3231 because Rose was charge d with offenses against the laws of the Un

ited State s. This court has jurisdiction over the appeal under 28 U.S .C. § 1291 b ecause Rose i s appe aling a convicti on imposed

by t he distric t court.
II. BACKGROUND

A. Factual Backgr ound
The facts of this case are not i n dispute. “In March 2001, agents with the Tennessee Bureau of I nvesti gation (“TBI ”) received information fro m a confidential informant (“CI ”) that”Rose could deliver methamphetamine. P rese ntence Report (“PSR”) a

t 5. The CI

arranged to purchase one pound of methamphetamine from

Rose and to have it delivered to a residence in Meigs County, Tenne ssee. On March 19, 2001, the CI and an undercove r TBI ag ent

met Rose at that residence; additional TBI agents monitored the transaction. Ralph Vasquez (“Vasquez”), a co-defendant, accompanied Rose to t he resid

ence. Pr eviously , in Dalton , Georgia, Eric Estrada (“Estrada”) had

“fronted” the methamphetamine that Rose was to deliver to the CI. Estrada had sent his associate, Vasq uez, alongwith Rose

on the March 19, 2001 transaction to ensure that Estra

da rece ived pay

ment.

At th e r es id en ce in Me ig s C ou nt y, Ros e and Vasquez negoti atedto sell an a dditional t

wo pounds o f methamphetamine to the CI. R ose a nd Vasquez told the CI that they would deliver

this additional methamphetamine for $20,000 at a later

date. Rose and Vasquez then delivered the original one pound of methamph etam ine in exchange for $11,500. Imme diately

thereafter, TB I ag ents arr ested Rose and V asq uez. When the TBI ag ents searched the car that Rose and Vasquez used

to travel to Meigs County, they found a loaded Colt .45 in plain view. 4 United Sta tes v. Ros e No. 02-5163

B. Proc edural Bac kground

OnApril11, 2001, Rose, Vasquez, and Estrada were ch arged in a three-count Indictment. On Ma y 22, 2001, a SupersedingIndictment named an additional threecoconspira tors. In Count One of the Superse ding I ndictmen t, Rose and all

fiv e co-conspirato

rs were charg ed with consp iring to distribute five hundred grams or more of a mixture or substance c o ntaining a detectable amount of methamphetamine , in v iolation of 21 U.S.C. §§ 846, 841(a)(1), and 841 (b) (1) (A) . In Count Two, Rose, Vasq uez, and Estrada were charg ed with d istr ibuting fifty g rams or more of a mixture

or substa

nce con taining a detectable amount of methamphetamine, in violation of 21 U .S. C. § 841(a)(1), (b)(1)( B), and 18 U.S.C. § 2. In Count Three, Rose, Vasquez, and Estrada we re char ged wit h knowingly and intentionally carr

ying a firearm during a nd in rela tion to the drug trafficking offe

nses set out in Counts One and Two, in violation of 18 U.S.C. §§ 2 and 924(c).

OnSeptember 6, 2001, Rose pleaded guilty to Counts One and Three pursuant to a written plea ag reemen t. A sentencing hearing was hel d on January 4, 2002, and a judg ment was entered that same d ay, dismissing Count Two on the government’s motion. T her e are discrepancies betwee n the descriptions of

the charges in Counts One and Three a s stated inthe Superseding Indictment a nd as stated in the plea agree ment.
OnJ anu ary 10, 2002, Rose filed a timely notice of appea

l fromthe district court’s judgment. On July 19, 2002, Rose’s court-appointed

counsel, Anthony

Martinez, filed an Anders brief and a motion to withdraw. In his Ander s brief, Rose’s counsel stated that after reviewing the entire record, he was of th e opinion that there were no meritorious grounds fo r a n appeal. Nonethe less, in his Anders brie f, Ros e’s counsel

r aisedthe issues of whether the district court erred by including the a dditional two pounds of methamphetamine wh en det ermining Rose’s offense level and whethe r theNo. 02-5163 United Sta tes v. Ros e 5

1 The f irst issue, regarding the dist rict court’ s inclusi on of the add it io nal two p ound s of me thamp hetam ine whe n dete rmining Ro se’s base offense level, i s analyzed more full y in United States v. Vasquez , 352 F.3d 1067 (6th C ir. 200 3), affirm ing the se ntence of Ro se’s co -defen dan t, Vasquez. The seco nd issue , regard ing the d istrict cou rt’s grant o f a three -lev el downward departure for the gove rnme nt’s 5K 1.1 motion, is meritless and easily disposed of

because we have hel d that a d efendant cannot appeal the degree of a

dist rict court’ s downward depart ure for subst anti al cooperation, so long as the di stri ct court remained wi thi n the s en t encing guidelines. Un ited S tates v. Greg ory , 932 F.2d 116 7, 11 69 ( 6th C ir 1991).

2 It is not

clear whether

Rose rais es the se as t wo dist inct

cl aims of error, but w e wil l t

reat the m as s uch. On pa ge f our of his brief, Rose states, “The Court neve r ha d juris dicti on to sent ence as t he charges present ed to th e Court were diff erent than t

he c harges bro ught in t he indictm ent.” App ellant’s Br. at 4. The n, on page five of his brief, Rose states, “I n o rder to be abl e to make an informed deci sion on t he plea agree men t, Ro se wo uld ha ve had to kno w that he was no t plead ing guilty to the charges in t

he indi ctment, renderi ng the pl ea moot.” Id

.
3 Again, it is not cle ar wh ether Rose is complaining about the suff icie ncy of the ev idenc e to sup por t his con victio n, or about the suff icie ncy of the Superseding Indictment. Appellant’s Br. at 4. On page four of his b rief, Ro se claim s the “cha rge ca n not sta nd o n its merit,” which seems to allege t ha t th e evide nce w as insufficien t to supp ort his conviction. Appel lant’ s Br. at4. On th at same page, Ro se also claims the districtcourt er

red as to the extent of

the downward departure in Rose’s sentence on the government’s 5K1.1 motion. 1

OnAugust 2 9, 2002, Ro se filed a pro se re sponse to h

is counsel’s Ande r

s brief. In his response, Rose ra ises the fol lowing three claims of error: (1) that the district court conducted

Rose’s ple a heari

ng in a ma

nner tha t viola t ed Fe deral Rule of Criminal Procedure 11 (“Rule 11") and tha t the distri ct court

did not have jurisdic

tion to ac cept a pl ea to
anoffense that

was not charged in the Superseding Indic tment; 2 (2) that t

here wa s ins ufficie

nt eviden

ce to support Rose’s c onvic tion for carry ing a firearm during and i nrelation to a drug trafficking of fense; 3 and (3) t

h e 6 United Sta tes v. Ros e No. 02-5163

charge was no t “ proper at indictment,” whi ch seems to allege t hat the Sup ersed ing Ind ictmen t was insufficie nt. Id

. additional two pounds of methamphet a mine that Rose and Vasquez agreed

to deliver should not have been consider ed in calculatingRose’s sentence. The government has not filed an appellate brief in this case.

The ex te nsive and rather complicated procedura l history will be set out in more detail below as it pertains to each of the issue s.
III. ANALY SIS

A. District

Court’s Compliance With Rule 11 for Count One

1. Fact ual Backgro und
The description of the

charg e in

Count One in the plea agreement

differs from that in the Supe

rseding Indic tment. In the Superseding I

ndictmen t, Count One

states:

RE GINA LD CHARLES ROSE, III, and others unknown to the Grand Jury, did com bine, conspire, confederate, and agree to kno wi ngly, intentionally , and without authority violate Title 21, United S tates Code, Sections 84 1(a) (1) and 841(b)(1) (A), that is, to distribute 500 gr ams or more of a mixture or substa nce con tainin g a detecta ble amo unt of m eth amp het ami ne, a Sc hed ul e II controlled

substance, in violation of Ti tle 21, United States Code, Section 846. R. at 35 (SupersedingIndic tment) (emphases added). I n the plea ag reemen t, parag raph one states:
The defe ndan t [R ose ] agrees to plead guilty to the followi n g counts of a Superseding I ndictment filed against him in the above-sty led case:No. 02-5163 United Sta tes v. Ros e 7

CountOne charging

him with a violation of Title 21, United States Code, Section 846, i .e. , attempt to violate Title 21, United Stat es Code, Section 84 1(a)(1) and 841(b)(1) (B), that is, to knowingly, intentiona lly

and without a uthori t

y distribut

e fifty (50) grams or more of a mixture or substance containing a detec table amo unt o f methamphetamine, a Schedule II controlled substance.

R. at 81 (Plea Agreement) (emphase s added). The description of the charge in Count One in theplea agreement differs from that in the Superseding Indictment in t hree res pects: (1 ) it changes the charge from “con sp iring to distribute ” to “attemptingto distribu

te”; (2)it chang es t

he sta tutory provisionfrom 21 U. S.C. § 841(b )(1)(A ) to 21 U.S. C. § 841(b)(1)(B) ; an d (3) to correspond with the changed statutory provision, it changes the drug quantity containe d in the des cription of the charge from “f ive hundred grams or more” to “fifty

grams or more.”

At the plea hearin g, the distri ct court read the charg e in CountOne as it is stated in the Superseding I ndictment. I n response, Rose pleaded guilty . After R ose pl ea de d g ui lt y, Va sq ue z’ s a tt or ne y, Mr. Brooks, pointed out that Vasquez’s plea agreem en t changed the charg e from a violation of 21 U.S.C. § 841(b)(1)(A), c onsp iring to distribute five hundred grams or more of methamphetamine mixture, to a viol ation o f 21 U.S.C. § 841(b)( 1)(B), the pena lty f or fifty gramsor more. The Assistant U.S. Attorney , Mr. Lay mon, also acknowledged the chang e. Rose joined in Vasq uez’s objectionregarding the cha nge. The dis cussion went as follows:

MR. BROOKS [counsel for Vasquez]: Your Honor, our plea agreement say

s 50 gra m s, rathe r than 500

grams, which wa s the original indictment. THE COURT: Mr. Lay

mon? 8 United Sta tes v. Ros e No. 02-5163

MR. LAYM ON [gove

rnment c ounsel]: Judge, as to both Mr. Rose and Mr. Vasquez, the first defendan t and the third defendant, they ’re pleading guilty pursuant to their plea agreements, which stipulate a plea to what would be
a lesser included offense, technically , I suppose, b u t it
wo uld be (b )(1) (B) as op

pose d to (b )(1) (A). . . . [R os e and Vasq uez] would b e pleading guilty to 50 grams or more, which is the (b)(1)(B) provision.

THE COURT : S o, Mr. Brooks, your client is pleading guilty to the charg e insofa

r as it all eges —

is it 50 gra ms or less, and not guilty as the c harg e alle ge s over 50 grams? I s that cor

rect?

MR. BROOKS: Your Honor, it’s 50 grams or more but not over 5 00 gra

ms. THE COURT: Okay. F ifty gr ams or more —
MR. BROOK S: That’s c orrect

. THE COURT : — but not over 500 g rams?

MR. BROOK S: That’s c orrect

. THE COURT: He ’s p leadi ng not guilty to any amount of 500 or m

ore gr ams? MR. BROOKS: That’s correct, Your Honor.

MR

. MARTINEZ: Judge, on behalf of Mr. Rose, also, Your Honor.

TH E C OU RT : O ka y. Plea Hr’g Tr. at 14-15. Thus, at the plea hearing, the parties and the district

court discussed the discrepancies between the SupersedingIndictment and the plea agreement reg arding the statutory provision s a nd the dru

g quant ities. The

y di d not,No. 02-5163 United Sta tes v. Ros e 9

however, discussthe substitution of the attempt language for the conspiracy

language.

Also at the plea hearing, when stating the e lements that the government

wou ld b e required to prove in order to convict Rose and Vasquez of the charges in Count One, the district court listed the elements for conspiracy , rather

than atte mpt. The district court stated:

InCount 1 you [Rose and Vasq uez] are charged with a conspiracy

to dis tribu te a mixture or substance which contained a detectabl e amou

nt of methamphetamine. For you to be foun d guil ty of this offense, the government
wo uld ha ve to prove bey

ond a reasonable doubt the following elements: (1) you c onspired or agreed with at least one other person to commit the crime of distributing
a mixture or substance which contained a detec tabl e amount of methamphetamine, and (2) y ou knowin

gly a nd
vo lu nt ar il y jo in ed th e c on sp ir ac y. Plea Hr’g Tr. at 16. 2. Analysis

Inhis pro se brief, Rose appears to contend that the district court conducte d Rose’s p lea hea ring in a manner that

violated Rule 11, an d thu s prev ented him fr om ent ering a valid gu ilty pleat o Count One . The distr ict cour t failed a dequate ly t o informRose of

the charges aga

inst him in Count One, failed to de termin e whethe

r Rose und

erstood t he char ges ag ainst him in Count One, and fail ed to ensu re ther e was a sufficient fa ctua l basis for the charge. Rose, howeve r, did not contemporaneous ly

object to the manner

in which the district court condu cted h is pl ea heari ng.
Whena defendant has raised the objection below, we review the district court’s compliance with Rule 11 for harmless error. United States v. Syal , 963 F.2d 900, 904 (6th Cir. 1992) (discussing the harmless error provision contained 10 United Sta tes v. Ros e No. 02-5163

4 W e are aware that

the Sup reme Co urt rece ntly grante d cer tiorari in United States v. Benit

ez , 310 F.3d 122 1 (9 th Cir. 20 02) , cert. granted , 72 U.S .L.W

. 3121 (U.S. Dec. 8, 2003) (No. 03-167), to dec ide whether a defen dan t, who pleaded guilty during a defi cient Rule 11 proceed ing and did not c on te mporaneously object to the deficiency, must prove that he

wou ld not have pleaded gu il ty absen t the de ficiency in o rder to ob tain

revers al. W e are al so aware t hat many

of our s ist er cir cuit s impose s uch

a requirement on defendants seeking t o obtain reversal under the plai nerro r stand ard, a nd so me e ven im pos e it on defen dan ts seeking to ob tain

revers al under the harmless- err or stand ard. See, e .g. , United States v. Dixon , 308 F.3d 229 ( 3d Cir. 2002) (plain-error st andard); United States
v. Martinez , 289 F.3d 1023 ( 7th Ci r. 2002) (plain-e rror sta nda rd); United States v. Marti nez , 277 F. 3d 517 (4th C ir.), cert. denied , 537 U.S. 899 (2002) ( plai n-e rror

standa rd); United

States v. Prado , 204 F.3d 843 (8th Cir.), cert. denied , 531 U.S. 102 4 (2000 ) (harmless- error standard); United State s v. We stcott , 159 F. 3d 107 (2d Cir. 19 98) , cert. denied , 525 U.S. 1084 (199 9) (har mless-e rror sta nda rd); United Stat es v. NoriegaMill an , 110 F.3d 162 ( 1st Cir. 1997) (h arml ess- error st anda r d); United States v. Ly ons , 53 F. 3d 1321 ( D.C. Cir. 1995) (harmless-error st andard); United States v. Johnson , 1 F. 3d 296 (5th C ir . 1993) (har mles s-e rror standard); United Stat es v. Vaughn , 7 F. 3d 1533 (10t h Cir . 1993 ), cer t. denied , 511 U.S. 103 6 (1994 ) (harmless- error standard). Th is circu it h as not y et i mposed on defendant s, who s eek to o btain

r eversal of t

heir convi cti ons pur suan t t o gui lty pl eas ba sed upon def icie nci es at their

Rule 11 proceed ings, a requi rement that t hey prove that theywould not h ave pleaded gui lty absent t he defi cien cies, a nd we decline to do so in

thi s cas e. Inst ead, we conclude that the er ror tha t inRule 11(h)). An error is not harmless if the defendant’s substantial rights were affected. Id

. In the present case, Ro se did not raise below the issue of the district court’s compliance with Rule 11. When adefendant did not con

tempora neously object to the district court’s alleged failure to comply with the require ments of Rule 11, we review for plain error. United States v. Vonn , 535 U.S . 55, 59 ( 2002). “ To establ ish plain error, a defen

dant must show (1)that an e

rror oc curred

inthe districtcourt; (2) that the error was plain, i.e. , obv i ous or clear; (3) that

the err or affe cted def

endant’ s substant

ial righ ts; and (4) that this adverse i mpactseriously affe cted the fairne ss, integr

ity or publi c re putation of the judicial proceedings.” United States v. Koebe rlein , 161 F.3d 946, 949 (6th Cir. 1998). 4No. 02-5163 United Sta tes v. Ros e 11

occ urred during Ro se’s Ru le 11 pro ceed ing was so egr egiou s that i t prevente d Rose from understanding what crime he was pleading gui lty t o, and thus co nstitutes p lain erro r. We will not impose on Rose t he burden of demonstrating that

he wou ld not have pleaded guilty absent the deficie ncy. In so ho lding, we poin t out that this c ase is fundam entally different from Benitez , in t

hat the error t

hat occurred in thi s case impugns the ascertainmentof Ro se’s guilt, whereas the er ror tha t occurred in Benitez

mere ly affected whether the defendant understood the ter ms of hi s plea bargain. W e conclude that the error t hat occurr ed in this c ase falls squa rely wi th in th e re qui reme nt s i mpose d by F ed. R. Cr im. P. 52(b) because it affected Ro se’s sub stantial righ ts. Alth ough a defen dan t in order to ob tain rever sal mus t typically sho w that the error was p rejud icial, i.e., that it “aff

ect ed the outco me o f the district c ourt p roce eding s,” in United States v. Olano , 507 U.S. 725, 734 -35 (1993), the Supreme C ourt sta ted: “There may be a spec ial cat egory of f orfe it ed err ors t

hat can be

co rrect ed regardless of t heir eff ect on the outcome.” In Ol ano , th e Supr eme Court further s tated that a “Court of Ap pea ls should corre ct a pla in for fei ted e rror

aff ecting su

bstanti al r igh ts if

the error

‘s eri ou sl y affect[s] the fai rn ess, int egrit y or publi c reputation of j udicia l proceedings .’” Id . at 736. Such an er ror occurr ed in t

his ca se.

5 In 2003, Rul e 11 was amended a nd renumbered. The 2003 vers ion require s dis tr ict

cour ts to c onduc t a n ev en mo re thoroug h in quir y i nto a defen dan t’s unde rstand ing of the charg es aga in st her before accepting a plea o f gu il ty or nol o cont endere . I n th is opini on, we cit e to t he 200 2

vers ion of Rule 11, which wa s in e ffe ct when Rose pleaded guilt y. On remand, the dis tri ct c ourt shoul d ensure that it

compli es wi th t

he 2003

vers ion of

Rule 11. W hat used to be Rule 1 1(c) (1) is no w pa rt of Rul e 11 (b)(1 ). Rule 11(b )(1) now provide s: Before the court accept s a pl ea of gui lty ornolo contendere, the defendant may be place d unde r oath, and the co urt must addre ss the defendant perso nally in op en co urt. During this address, the court must inform the defendant of, and determine that the Rule 11 specif

ies th e pro cedure

that distr

ict cour ts must follow when accepting a defe ndant’s guilty plea. Rule 11(c) require s, inter alia, “Before acc epting a plea of guilty or

nolo contendere, the cour

t must addr

ess the de fendant

persona lly inopencourt and inform the defendant of, and deter mine that the defenda

nt under stands . . . the natur e of the c

harge to whichthe plea is offered.” Fed. R. Crim. P. 11(c)(1). 5 Rule 12 United Sta tes v. Ros e No. 02-5163

defendant understands, the f ollowing:

. . . (G) the natur e of each c harge t o which the defen dan t is pleading.

6 W hat used to be R ule 11 (f) is now Rule 1 1(b )(3). N ew R ule 11(b )(3) requires: “Before entering judgment on a guil ty plea, t he court must d eterm ine that the re is a factu al basis fo r the ple a.” 11(f) requires: “Notwithstanding the acceptanc e of a plea of gu il ty, the court

should not enter a judgment upon such plea withoutmaking s

uch inquir

y a s shall satisfy it that the

re is a factual basis for

the plea .” Fed. R. Crim. P. 11(f). 6 Alth ough the procedu

re spec ified in Ru

le 11 is not

constit ut ionally required, the purpo se of Rule 11 is “to assist the dist rict j udge inmaking the constitut iona lly r equired determination tha

t a defendant’s guilty plea

is truly voluntar y. . . . [and] toproduce
a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.” McCarthy v

. United States , 394 U.S. 459, 465 (1969); see a lso Syal , 963 F.2d at 904.

We have decided several cases in whic h the defendant claimed that the district court violated Rule 11 because the districtcourt did no t list the elements that the government must prove beyond

a reasonable doubt

in order to convict the defendant of the charges in the indictment. Compare Syal , 963 F. 2d at 902-905 (holding that the district court’s failure
even to “rehearse the content of the indictment” or to list the elements of the crime violat e d Rule 11) ; United States v. Goldberg , 862 F.2d 101, 108-09 (6thCir. 1988) (holding that th e district court’s failure to list the active concealment element of the crime of misprision of a felony

violated Rule 11 because that crime is uncommon); and United States v. Van Buren , 804 F.2d 888, 892 (6th Cir. 1986) (holding that the districtcourt’s “reading of the indictment and defendant’s admission of guilt

are not s

ufficie nt complia

nce” wi th Rule 11 where the crime charg ed is com p lex and not e asily understood), with United States v. Edgecomb , 910 F.2d 1309,No. 02-5163 United Sta tes v. Ros e 13

1313 (6th Cir. 19 90) ( holding t hat distri ct court

adequa tely explained the conspiracy

charg e at issue in that case by reading the ind i ctment accompanied by the government’s recitation of the factual basis, because the consp iracy was easily understood

and the district court read the charg es in the indictment); and United States v. Ferguson , No. 96-6029, 1997 WL 7644 71, at *3- *4 (6th Cir . Dec. 3, 1997) (ho ldin g that the dist rict court’s failure to read the char ges in the indictmentor list t he eleme nts of con spiracy

to distribu

te drugs did not violate Rule 11 because tha t crime is easily understood, the government gave a detailed description of the defend an t’s conduct, the district court questioned the defendant regarding

the conduct that constituted the offense, and the defendant stated that he had discu ssed the charges with his attorney and unde

rstood the charges). Thus, we have concluded

that when a defendant claims that the district court violated Rule 11 by failing dur

ing the plea colloquy to list the elements of the crime charged, the suffici ency of the

plea colloquy depends upon

the complexity of the crime char ged. “Whe re th e crime is easily unde rstood, several courts have held that a re ading o f the indic tment, or e

ven a su mma ry of the ch arges

in the indic

tment and

an admiss ion by

th e defenda nt, is suffi cientto establish a factual basis.” Van Bu ren , 804 F.2d a

t 892. Addi

tionally , we have held that a simpleconspiracy

to distribute drugs is easily un der stood, and thus a district court ma

y c omply with this pa

rt of Rule 11 by merely reading the conspiracy

charge from the

indictment and asking the defe

ndant whe

ther he u ndersta nds it. Edgecomb , 910 F.2d at 1313.

Alth ough Rose was convicted of a simple conspirac y to distribute methamphetamine, a crime this cour t has held i s easily understood, we hold that the district

court nonetheles s violated Rule 11(c)(1), a

nd thus prevented Rose from entering
a valid gu ilty plea. Rule 11(c)(1) requires the district court to informthe defe

ndant of t

he char ges ag ainst

him and to determine whether the d efendant understands the nature of the charge to whichhe is pleadin g guilt y. F ed. R. Crim . P. 11(c )(1). “[A] determination of defendant’s understandi n g 14 United Sta tes v. Ros e No. 02-5163

involves consideration of the nature of the charge a nd the dialogue that

took place between the defendant and the Court during the Rule 11 proceeding.” Van Buren , 804 F.2d at 891. In Edgecomb , this court considered the crimeof conspi racy to possesscocaine with int ent to distribute and held that the crimeas alleged in th at case, is easily understood, and thus the district court there co mplied w ith Rule 11 by me rely reading the indictment where the governme nt described the factsconstituting that conspiracy

. Edgecomb , 910 F.2d at 1313. In thi s case, however, an examination of the record and the dialogue that

tookplace between the defendant and the districtcourt re

veals that the defendant did not understand the
na tu re of th e c ha rg e t o w hi ch he wa s p le ad in g gu il ty. Here, the district court read the description of the char ge in CountOne from the Supersed ing I ndictment, while Count One was state d differ

ently in the ple a agre ement. Ros e objected to the district court’s reading of Count One of the SupersedingIndic

tment, inso far as it

charg ed Rose wi

th conspiring to distribute five h undred g rams o f methamphetamine, in violation of § 841(b)(1)(A), instead of fifty grams of methamphet amine, in violation of § 84 1(b)(1)(B). Rose clarified that he was only pleading guilty to fifty gr

ams of methamphetamine, in v iolat ion of § 841(b)(1)(B), and thus obviated any Rule 11 proble ms that might have arisen from the discrepancies be tween the SupersedingIndictment and the plea agreement reg ardingthe statutory provi sion s and t he dru g quan tities. Rose did not object, however, to the district court’s reading of Count One of the Superseding Indictment, insofar as it charged

Rose with
c onspiring to distribute methamphetamine, instea d o f atte mpting to distribu

te metham

phetamine. Ther

efore, th e districtcourt fa

iled to de termine whether Rose understood that he was pl eading

guilty to conspiracy . The description of the charg es in

the plea agreement indicates that Rose thought he was plea ding gui lty t o attempt. The distr

ict cour t, however, accepted Rose’s guilty plea and entered

a judgment of convicti on on the c

rime of c onsp iring to distribu te methamphetamine. Because Rose might not have understoodNo. 02-5163 United Sta tes v. Ros e 15

that he was plea

ding g uilty to conspir

ing to distribute methamphetamine, rather than atte

mpting to

distribute methamphetamine, he did not ent er a val id guilty

plea to Count One.
Rule 11(f) requires the district court to determine that there is a sufficient factual basis for the charge to wh ich the defendant is pleading guilty . Fed. R. Crim. P. 11(f). We have held, “[W]hile the exact metho d of pr oduci ng a factua l basis
onthe record

is subject to a flexible standard of review, the need to have some fa ctual ba sis will con tinue to be

a rule subject to no exceptions.” Goldberg , 862 F .2d at 106 (quoting United Sta tes v. Fountain , 777 F.2d351, 357 ( 7th Cir. 1985)). We h ave al so recognized that the district court may determine the existence of a factual basis from various
sources , including a statement by the pr osecutor or a statement by the defendant. Id . at 105. The description of the charges inthe plea

agree ment indic ates tha

t Rose thought he
was pleading

guilty to the cr ime of att empting to distribu

te methamphetamine mixture. When ascertaining whe ther t here was a suf ficient f actual b asis, the district court merely aske d Rose whet

her the w ritten fa ctual ba sis in

the plea agreement
was true as far as Rose kn ew, an d Rose agreed. Rose’s confusionregar ding the charge to which he was pleading guilty likely spilled over into his con cess ion that the factual basis was true, and thus his concession does not constitute a sufficient factual basis. Because the district co ur t did not determine that there was a s u fficient factual basis for conspiringto distribu

te metham

phetamine mixture, R

ose did not enter a valid guilty

plea to Count One.

All of the Sixth Ci

rcuit ca ses cite d above, discussing the procedure the distri ct court must follo w wh en accep ting a def endant ’s guilty plea, were decided under the harmless er ror standard. In this case, however, Rose did not raise the issue of compliance with Rule 11 in the distr ict court. Therefore,
we must review the district court’s actions for plain error. Von n , 535 U.S. at 59. In Syal , we held that, in a complex case, the di stri ct court’s failure to list the elements of the 16 United Sta tes v. Ros e No. 02-5163

7 We do, how ever, po int out t hat “def ects in an in dict

ment do not deprive a court of it s power to adj udicat e a case. ” United Stat es v. Cott on , 535 U .S. 625, 630 (200 2). crimeto which the plea is offered “c annot be s aid to be harmless.” 963 F. 2d at 9 05. In rea ching t his concl usion, in Syal , we noted that the defendant’s substantial rights were affected by the district c ourt’s fa

ilure to li st the ele

ments. Id

. at 904. For the reasons discussed above, the errors committed by th e district court in this case affected Rose’s substantial rights. To meet the higher plain error standar d, in addition

to finding that the err ors affected Rose’s substantial rights, we must also find that the e rror “s e rious ly a

ffecte d the fai

rness, integr ity or public

reputa tion o f the judicial proceedings.” Koeberle in , 161 F .3d at 949. Because the district court’s violations of Rule 11 prevented Rose from understanding the charg e to which he was pleading guilty, the violations seriously affected the f

airness of the pr oceedin gs and r ose to the level of plain error.

B. District

Court’s Jurisdiction to Accept Rose’s Guilty Plea to Attempt

Inhis pro se brief, Rose also appear s to argue that the district c ourt lacked juris diction to accept Rose’s guilty plea and to sentence Rose on Count O ne because Rose pleaded guilty to attempt

ing to distribute me

thamphet amin e, w hich
was not char

ged in the Superse ding I

ndictmen t. The colloquy at Rose’s plea he aring and the district court’s judgment of convictionindicate thatRose actu ally pleaded guilty to conspiringto distribute methamph e tamine, which was charged in the Superseding Indictment. The refore, the district court did not, as Ros e contends, actually a ccept a guilty

plea to a crime n

ot charged in the Su

persedi ng I ndictment . This conclusionand our decision to vacate Rose’s plea due to the Rule 11 violations makes further analy sis of this assignment of er ro r u nn ec es sa ry. 7No. 02-5163 United Sta tes v. Ros e 17

8 At one p oint, R ose se ems to allege that the Superseding Indictment

was insuff

icient on this count. Appellant’s Br. at 4 (s tating that t he charge

was not “proper

at in dic tme nt”). This court has hel d, “Inorder for an indictment to be sufficient, it mu st con tain the elements of the offense charged and fairly

inform a defend ant of t he charges against whi ch he must defen d.” Allen v. United States , 867 F. 2d 969, 971 (6th Cir. 1989) ( citing Ham ling v. United States , 418 U.S . 87, 1 17 ( 197 4)). T his cla i m has no m erit because Count Three clearly charged Rose with carrying a firearm during and in relation to a dr ug traffickin g offens e, in viol ati on of 18 U.S.C. § 92 4(c). C. Sufficiency of the Evidence for Count Three

Inhis pro se brief, Rose argues that there was insufficient evi dence to support his conviction on Count Three of th e SupersedingIndic

tment, whi ch char

ged Rose with carrying a firearm during and in relation to a d rug traffick

ing cri me, in violation of 18 U.S.C. § 924(c). 8 By plea ding g uilty , Rose admitted the truth o f all of the facts set forth in the SupersedingIndictment. United States v. Parker , 292 F.2d 2, 2 (6th Cir. 1961); see also U nited State

s v. Kyle , No. 01-6014, 2001 WL 1580232, at *4 (6th Cir. Dec. 6, 2001). Furthermore, the district court prope rly de termined that the facts stated in t

he Superseding I

ndictment andthe factual basis are sufficient to support a convicti on for carrying a fir earm during and in relation to a drug traff icking offen se ; therefore, we reject this assignme nt of error.

Section 92 4(c) pr

ovides:

any person who, during and in relation to any crime of

v iol ence or drug trafficking cr ime . . . for which the person may be prose cuted in a

court of the Un ited State s,
uses or carrie

s a firearm , or who, in furtherance of any suchcrime, p ossesses

a firearm, shall, in addition to the punishmentprovided

for such crime of violence or drug trafficking crime — (i) be sent enced to

a term of imprisonme

nt of not le ss than 5 y ears. 18 United Sta tes v. Ros e No. 02-5163

18 U.S.C. § 924(c)(1)(A) (emphasis added). Thus, a defendant can be charged and convicted of violating § 924(c) under three di ffere

nt theo ries, including (1) using a firear m during and in relation to a drug trafficking crime, (2) carry

ing
a firear m during and in relation to a

drug trafficking crime, or (3) possessin

g a fir earm in furtherance of a drug trafficking crime. Rose was charged

under the “carry

” prongof § 924(c).

Rose argues that to becharged under the “carry

” prong, the defendant must have a cti vely

employ ed the fi rearm. In his brief, Ro se states :
A weapon in a car does not satisfy the carry standard set forth in 18 USC § 9 24(c)( 1)(a). [sic]. Bailey v US, 516 US 137.

In Bousley v US, 523 US 614, the Court held that, active employment

of a fire arm is a

r equir ement of char ging a defendant wit h 924(c). A ctive employment includes uses suchas bran dish ing, displaying, bar tering, striking with, firin g, or attempting to fire the weapon, but does not include mere possession of a firearm ; thus, a defendant cannot be charged under § 924(c )(1) merel y for (1) storage of a weapon near drugs or drug pr oceeds, or (2) placement of a firearm to provide a sense of

security or to embolden. Appellant’s Br. at 4. Although Rose is correct that Bailey v. Un ited States , 516 U.S. 137, 138-39 (1995), and Bousl ey v

. United States, 523 U.S. 614, 6 16 (1998), discuss the active employment

require ment, inthose cases, the defendants were convicted under the “use” prong of § 924(c ). In t he present case, Rose was charged unde r the “carry

” prongof § 924(c). In Bailey , the Supre

me Court he ld that to obtain a conviction under the “use” prong, the gove rnment must show that the defendant actively employ

ed the firearm. Bailey , 516 U.S. atNo. 02-5163 United Sta tes v. Ros e 19

9 Bousley discus ses “the p ermiss ibility of po st- Ba ileycollat eral attacks on § 924(c)(1) co n victions obta ined p ursuan t to guilty ple as.” Bo usley

, 523 U.S. a t 618. 148-49. 9 The Court further h eld thatshowing that the defendant merely possessed the

firearm was not sufficie nt to obtain a conviction

u nder the “use” prong; theref ore, “A defendan t ca nnot be charged under [the “use” pr ong of] 92 4(c)(1) merely for

storing a weapon near drug s or dru g proceeds.” Bailey , 516 U.S. at 149.
The Courtin Bailey additiona lly noted that the government is not requi

red to show that a defendant actively employed the firearm to obtain aco nv ic ti on un de r t he “c ar ry” prong. Id . at 150 (st ating, “The ‘carry ’ prong of § 924(c)(1) . . . br ing s some offenders who would not satisfy the

‘use’ pr ong with in the rea ch of the statute”). La ter, in Muscare llo v. Unit e d States , 524 U.S. 125, 128-39 (1998), the Court discussed the elemen ts the gov ernment must prove

to obtain a

convicti o n under the “carry

” prongof

§ 924(c). To obtain a conviction under the “ca rry ” prong, the government must show the defenda nt t ransported the firearm, with some degr ee of agency or control, during and in relation to a drug tra fficking crime. See Muscarello, 524 U.S. a t 134, 139; H

illia rd v. United States , 157 F.3d 444, 449 (6th Cir. 199 8). I n Muscare llo , the Court held that the government may obtain a convictionunder the “carry ” prongby showing

the defendant transported

the firearm in his car during and in rela tion to a drug crime. 5 24 U.S. at 1 39. The Co urt state d that th e “c ar ry” prong “applies to a person who knowingly possesses and co nv eys firearms in a vehicle, including in the locked glove compartm ent or trunk of a car, which the person accompanies.” Id . at 126-27.

Inthe present

case, the factu

al basisaccompany

ing Rose’s plea agree ment state s, “Afte

r Rose and Vasquez were arrested inMeigs County, police f ound a loaded .45 caliber handgun inthe passenger compartment of [their] automobile.” R. at 86 20 United Sta tes v. Ros e No. 02-5163

(FactualBasis). Rose and Vasquez use d this automo bile to transport the metha

mphetamine from Dal

ton, Geor gia, to Meigs County, T en nessee. Under Muscare llo and Hilliard , a defe ndant m ay be c onvicted under the “carry ” prong if he possesses and convey s a firearm. The district court’s finding that the firearm was located in the passeng er compartment of the car Rose

used to tr avel to Me igs Count

y a nd to deliver

the methamphetamine was sufficient evidence to support Rose’s convictionunder the “ca r ry” prong . Therefore, we reject Rose’s claim that there wa s insuf ficient evidence to support his conviction for

carry ing a firearm during and

in relati on to
a drug tr affick ing off ense, in violation o f 18 U.S.C. § 924(c). Moreover, the fact that we arevacating Rose’s conviction on CountOne does not require us to vacate Rose’s conviction on CountThree because § 924(c) only requires that the district court be convinced that the defendant carr ied a we apon in connection with a drug trafficking offense for which

he may be prosecuted. United States v. Ospina , 18 F.3d 1332, 1335- 36 (6th Cir.), cert. denied, 512 U.S. 1226 (1994).

D

. District Court’s Compliance with Rule 11 f or Coun t Three

1. Fact ual Backgro und
The descri p tion of the charge in Count Three in the plea agreement

also diff ers from that st ated in

the Superseding Indic tment. In the Superseding I ndictment, Count Three states:

RALPH VASQUEZ, REGINA

LD CHARL

ES RO SE, III, and ERIC ES TR ADA, aided and abetted by each other , did knowingly and intentionally car ry a firear

m, that is, a loaded .45 caliber Colt handgun, during and in relation to the dru g t rafficking cr imes set ou

t in Counts One and Two above, in violation of Title 1 8 , United States Code, Sections 2 and 924(c).No. 02-5163 United Sta tes v. Ros e 21

R. at 34 (Superseding I

ndictment) (em

phasis a dded). In the plea ag reemen t, parag raph one states:
The defendant agrees to p lea d guilty to the following counts of a Supe

rseding Indic tment file d again st h i m in the above-style d case:

. . . C ount Three charging him with a violation of Title 18, United States Code, Section 924( c), that is, knowing ly

and intentionally carr

y [sic] a firearm, during and in relation to a drug trafficking crime. R. at 81 (Plea Agreement). Thus, the descr iption in the plea agreement

of the charge in Count

Three omits the “aided and abetted by eac h othe r” language that is included in the Supersed ing I ndictmen t.

At Rose’s plea

hearin g, the distri ct court read the charg e in CountThree from the Superseding Indictment, including

the “aided and abetted by

each other” languag e. In response, Rose pleaded guilty . No objections were maderegarding the districtcourt’s reading of the charg e in CountThree. Also at the plea h earing, when stating the elements that the government

would be r equi red to prove in order to convict Rose and Vasquez on

the charge in Count Three, the district court omitted the “aided and abetted by ” language. The district court stated:

In Count 3 you are cha

rged, Mr. Vasquez and Mr

. Ros e, with carry

ing a fi rearm d uring a nd in rela tion to the commission

of a drug -traff

icking o ffense . For y

ou to be convicted of this crime, the governm ent wo uld have to prove beyon

d a reasonable doubt the following two elements : (1) y

ou committe d the drug- traffic king off ense alleged in Count 1 of

th e superseding indictment, and (2) during and in relation

to the commission of thatdrugtraffic king off ense, y ou knowing

ly c arried a firea rm. Plea Hr’g Tr. at 16. 22 United Sta tes v. Ros e No. 02-5163

2. Analysis
Unlike the discrepancy

between the two versions of Count One, the diffe

rence b etween

the lang uage o f Count Thr

ee in the Superseding Indictment and in the plea agreement did not prevent Ro se from entering a valid guilty plea to Count Three. In the

Supersed ing I ndictmen t, Rose was charg ed both
as a principal and as an aider and abettor; ther efo re, the district court did not err

in readi ng the e lementsfor carry

ing
a firear m as a principal and

accepting Rose’s plea to carr ying a firea rm as a pr incipal.

As discussed above, when a defendant did not contemporaneous ly

object to

the distri ct court ’s alleged failure to comply with the requireme nts of Rule 11, we review for p lain error. Vonn , 535 U.S. a t 59. Rule 1 1 specif

ies th e procedure to be followed by a distr ict court in ac cepti ng a defenda nt’s guilty plea. Rule 11( c) requires, among other things, that “[b]ef

ore acc epting a

plea of g

uilty or nolo contendere, the cour

t must addr

ess the de fendant

persona lly inopen court and inform the defendant of, and determine that the defen dant und erstand s . . . the na ture of the charge to which the plea is offered.” Fed. R. Crim. P. 11(c).

Cou ntThree o f the Supe

rseding Indic tment cha rges R os e with carry ing a firearm during and in relation to a drug trafficking

crime, aided and ab ette d by the co-c onspirat

ors. The plea agreement, however, describes Count Three as only
c harging Rose with carry

ing a firearm in relation to a d ru g trafficking

crime. Thus, the “aided and abetted ” langu age included in the SupersedingIndictment was omitted from the plea agree ment. Dur

ing the p lea collo quy , the distr ict c ourt
rea d Coun t Three, as stated in the Supe

rseding Indic tment, butthen liste d the ele

ments f or c arrying

a firearm without listing the aiding

and abetting re quireme

nt.
The omission of

the “aided and abetted

by” lang uage from the plea agreement and from the district c ourt’s reading of the elements of the offense during the plea colloquy did notNo. 02-5163 United Sta tes v. Ros e 23

10 Regard less of whether thi s additional l anguage makes the Superseding Indictment duplici tous or is mere surplusage, Rose may not argue that t

he Superseding Indictment is def ective on these bases be cause by pleading g uil ty, Rose waived hi s objecti on to all non-jur isdi ctiona l defec ts in the i ndictment

. United States v. Moloney , 287 F. 3d 236, 239 (2d Cir. 2002). prevent Ros e from entering a valid guilty plea to Count Three. In Count Three

of the Supe

rseding Indic tment, Rose
was charge d as both a principal and an aider and abettor; 10 therefore, the district court did not err in reading the eleme

nts for carry ing a firearm as a principal or accepting Rose’s plea to carrying a fire arm as a principal. Count Three of the SupersedingIndictment states that the defendants “aided and abetted by e ach othe

r, did knowing ly a

nd intentio

nally carry a firearm.” This language char ged Rose with carry ing the firearm himself, as wellas aiding and abetting the other defenda nts in the offense of carry ing a firearm. To charge

a defendan t w ith aiding and abetting, but not committing the crimehims elf, an indictment would state that the defendant aided and abetted anot

her in the commission of the crime. See, e.g. , United Sta tes v . Lawson , 872 F.2d 179, 181 ( 6th Cir.), cert. denied, 493 U.S. 834 (1989) (considering t he defendant charged “with aiding an d ab etting [a

nother] in knowing ly

receiving and

possessin

g illeg al machine guns in violation of 1 8 U.S .C. § 2 and 26 U.S.C. § 5861(c)”). Becau se Count Three of the Superseding Indictment charg ed Rose with carry

ing a firearm as a principal and the writt en plea agreement

described

Count Thre e as cha

rging Rose with carry ing a firearm as a principal, the district properly advised Ro se of the nature of the charge s against him in compliance with Rule 11(c)(1).

Ad di ti on al ly, ina recent unpublished opinion, we held that aiding and abetting is “

merely a theory of liability, and not an offense distinct in and of

itself.” United

States v. Taniguchi , Nos. 00-4495, 00-4 496, 2 002 WL 31371978, at *13 (6th Cir. Oct. 11, 20 02) (ci ting United States v. Schuh , 289 F.3d 968, 976 (7th Cir. 2002)). In Taniguchi , we upheld the 24 United Sta tes v. Ros e No. 02-5163

11 In Tan i guchi , we held that the indictmen t was sufficient because it cit ed 18 U.S. C. § 2, which add resses a iding a nd ab etting liab ility. United States v. Taniguchi , Nos. 00- 4495, 00- 4496, 2002 WL 31371978, at *13 (6th Cir. Oct. 11, 2002). defendant’s co nvict ion for a iding an d abettin g another in receiving illegal firear

ms, even though the indictment did not include la ng ua ge re fe rr in g t o a id in g a nd ab et ti ng li ab il it y. 11 I d

. a t *13. The reasoning of Taniguchi applies in this case. The omission of the “aided and abetted language ” from the plea ag reeme nt and from the district court’s reading of the el ements of

th e o ff en se du ri ng th e p le a c ol lo qu y d oes no t constitute a violation of Rule 11. E. Drug Quantity Used to Calculate Rose’s Sentence

1. Fact ual Backgro und

OnJanuary 4, 2002, R

ose wa s sentenc ed to 138 mo nths’ imprisonment(seventy-e ight months on CountOne and sixty months onCount Three) and four y ears of supervised release. At the sent en cing hearing, Rose joined Vasquez’s objection to the amount of methamphetamine used to determine each of their base offense levels. During the objec tion, Vasquez argued that under United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1, Application Note 12 (“Note 12”), the additional two pou n ds of methamphetamine that Rose and Vasquez agreed to deliver should no t be consi dered in determininghis base

offense level be cause V asquez an d Rose
were not reas onably

capable of delivering

the additional two pounds due

to their im

minent ar rest.

Inresponse to the objection, the g overnment argued that under Note 12 , these additional two poun ds of methamphe tami ne should be considered in determining Rose’ s an d Vasquez’s base offense levels because they ag reed to deliver, intended to deliver, and were reas on ably capable of delivering the additional two pounds. The government supported its arg ument by showin g t hat durin

g the sa meNo. 02-5163 United Sta tes v. Ros e 25

12 During M arch 2 001 , the G eorg ia Bureau of Inve sti gati on (“GBI”) investi gated Estr ada and Hector Garni ca (“ Garni ca”). On March 12, 2001, Estrada sold one-half of a pound of methamphetamine to a Ge orgia CI. Th en, on M arch 1 6, 20 01, E str ada an d Braulio Garni ca (“Braul io”) delive red an additional one pound of methamphetamine to th e CI

. On Ma rch 18, Estrada arranged to deliver two pounds of methamphetamine to the s ame CI for

$19,000 . On M arch 24, 2001 , Braulio delivered the two pounds of methamphetamine t o the CI f or Estrada. Estrada, Garnica, and anoth er cha rged co-co nspira tor we re also prese nt at that d elivery. month, Estrada , Rose ’s an d Vasque z’s supplie r, eng aged in transactions for one-half of a pound, one pound, and two pounds of methamphetamine. 12

The district court

overruled the objection and accepted the
c a lculations contained in the Presentence Report (“PSR”). The PSR used the additional two pounds o f methamphetamine that Rose and Vasquez agree d to deliver and the one po u nd of methamphetamine that Rose and Vasquez actually

delivered to deter mine Rose’ s base of

fense level. In a cco rdance with the PSR, the district court set Rose’s base off

ense level for Cou

nt O ne at level thirty-two. Rose received a three -le vel downward adjustment for acceptance of

responsi bility , making

Rose’s tot

al offe nse le vel twenty-nine for

Count One. The district court al s o g ranted a downward departure of three levels in accor danc e with the government’s § 5K1.1 motion, which reduced Rose’s offense lev el to t wenty-six and resulted in a sentenc ing guideline range of eighty -seven to ninety-se

ven months for Count One. 2. Analysis

Rose’s claim

of error regarding

the quantity of drug

used to determine his base offens e level is identical to his codefendant’s claim, which this court analy zed fully in United States v. Vasquez , 352 F.3d 1067 (6th Cir. 2003). Consistent with Vasquez , we hol d that the district c ourt did not err in determiningRose’s ba se offens e level based upon both the 26 United Sta tes v. Ros e No. 02-5163

one pound of

methamphetamine t

hat Rose actually deliver

ed and the additional two pounds of methamphetamine that Rose agree d to delive

r. Note 1 2 provide s:
Inan offense involving an agr eement to sell a controlled substance, th e agreed-upon quantity of the controlled substance shall be used to determine the offense level unl e ss 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 i ntend to provide, or was not reasonably capabl e o f provi ding, th e a gr ee d- up on qu an ti ty o f the controlled substance, the cour

t shall excl

ude from the offe nse level determination

the amount of controlled substance t hat the defendant establ ishes th at he or she did not i ntend to provi de or wa s not reason ably capab le of p rovid ing.

U.S.S.G. § 2D1.1, cmt. n.12 (2001). Rose failed to prove that he did not intend to provide or that he was not re ason ably capable of providing the additional two pounds of methamphetamine; theref ore, the district c ourt prop erly

used
a drugquantity of three pounds of methamphetamine mixture to deter mine Rose’ s base of

fense le vel.

Rose raises one additi onal cla im o f e rror regarding the calcula tio n of his sen

tence. R ose conte nds that the PSR incorre ctly

attribute s 4.5 pound s of me tham phetamine mixture to him in the

determination of h

is base of fense le vel. This claim is meritless because it is based upon a misreading of the PSR. Alth ough the PSR refers to a drug quantity of 4.5 pounds of metha

mphetamine mixture, i

t attribu tes that amount to Garnica, Estra da’s supplier. The 4.5 pounds was notattribute d to Rose . Only three poun ds of methamph etam ine mixture we re attri buted to Ro se and his offense level was based upon a drug quantity of three pounds of methamphetamine mixture.No. 02-5163 United Sta tes v. Ros e 27

IV. CONCL USION

The district court committed p la in error by a ccepting Rose’s guilty plea to Count One in a ma nner that violated Rule 11. The di strict co urt did not

commit plain error in
acce pting Rose’s guilty plea to Count Three. Therefore, we VACATE Ros e ’s conviction and sentence as to Count One and REMAND for

proceedings consistent with this opinion.