UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4633

BERNARDO MERCEDEZ-GONZALEZ,

a/k/a Jorge Pizarro,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

James A. Beaty, Jr., District Judge.

(CR-96-258)

Submitted: March 16, 1999

Decided: April 9, 1999

Before MICHAEL and KING, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Bernardo Mercedez-Gonzalez appeals the 235-month sentence he

received after he pled guilty to distribution of crack cocaine, 21

U.S.C. § 841(a) (1994). He contends that eight ounces of crack he

negotiated to sell an undercover agent should not have been used to

calculate his offense level under U.S. Sentencing Guidelines Manual

§ 2D1.1 (1995). We affirm the sentence.

Mercedez-Gonzalez (using the name Jorge Pizarro) was present in

a fortified apartment* in October 1996 when state undercover agent

Kevin Canty bought 25.2 grams of crack from Poppy, a Hispanic

male. On October 31, 1996, when Canty tried to buy crack from

Poppy again, Mercedez-Gonzalez told him that Poppy had gone to

Puerto Rico. However, Mercedez-Gonzalez sold Agent Canty two and

a half ounces (65.8 grams) of crack. Canty reduced his purchase from

three ounces to two and a half ounces after they dickered about the

price. Canty estimated that Mercedez-Gonzalez had"a couple more

ounces" in the bag from which he weighed out three ounces initially.

On November 12, 1996, Canty and an agent from the Drug

Enforcement Administration (DEA) went to the apartment and

Mercedez-Gonzalez agreed to sell Canty eight ounces (226.8 grams)

of crack for $8600, a reduced price. They agreed to meet the following week after Mercedez-Gonzalez made a trip to New York. However, Canty and the DEA agent did not contact Mercedez-Gonzalez

until December 5, 1996. On that day, when Canty told Mercedez

Gonzalez that he was ready for the eight-ounce purchase, MercedezGonzalez told Canty he did not sell drugs. A search of the apartment

where the prior sales had taken place resulted in the seizure of crack

cocaine residue, scales, and some money, including marked police

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*There were steel bars across the door on the inside.

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funds. Mercedez-Gonzalez was arrested and later pled guilty to crack

distribution.

At his sentencing, Mercedez-Gonzalez objected to the inclusion of

the eight ounces in the offense level calculation. However, the district

court found that Mercedez-Gonzalez was capable of supplying the

agent with eight ounces of crack and intended to do so when he made

the agreement, even though the sale never took place.

We review the district court's factual determination under the

clearly erroneous standard. See United States v. Williams, 152 F.3d

294, 301 (4th Cir. 1998). Here, we cannot find that the district court

clearly erred in making its determination. Canty testified about his

dealings with Mercedez-Gonzalez, but Mercedez-Gonzalez provided

no evidence of his inability or unwillingness to sell eight ounces of

crack beyond the fact that the eight-ounce sale did not take place.

Accordingly, we affirm the sentence. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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