United States of America v. Ralph Vasquez

*The Honorable R ichard M ills, 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 Charlie Rose
(“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

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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 co-
conspirators. 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
1During 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 Ge orgia
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 M arch 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

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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 thirty-
two. 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:

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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 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). 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
2The government also points to Vasquez’s admission at the
sentencing hearing that there is evidence showing that V asquez could
com plete the transaction. Sp ecifically, the government cites V asquez’s
counsel’s statement that “[t]here is no evidence to show that [defendant
and Rose] couldn’t have provided the two pound s. In fact, there is
evidence to show that they could have p rovid ed two pounds.” App ellee’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

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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 quantities far outside
of their normal course of dealings by carefully evaluating the
evidence pertaining to the defendant’s intent and capability.

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No. 02-5181 United States v. Vasquez 11
3In 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 invo lved in the present case. United
States v. Ukomadu, 236 F.3d 333 , 340 (6th Cir. 200 1). 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 No te 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 applicab le 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 only circumstance 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
4Christian 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 d efendant 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 quo tation marks om itted). 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 pro viding 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 o r she did not intend to provide or that he
or she was not capab le of providing the ne gotiated amount. Id. In spite
of this alteration, the showing a d efendant 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, five-
kilogram 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

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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.

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