United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20937
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CR-94-2
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Roberto Garza pleaded guilty to an indictment charging him
with possession of five or more kilograms of cocaine with intent
to distribute. Garza contends that he should have been sentenced
on the basis of the drugs he actually possessed and not the
quantity of drugs under negotiation. On similar facts, this
court held in United States v. Lombardi, 138 F.3d 559, 562 (5th
Cir. 1998), that the district court had not clearly erred in
holding the defendant responsible for the entire quantity of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-20937
-2-
drugs agreed upon by the parties. See U.S.S.G. § 2D1.1, comment.
(n.12).
Garza contends that, in applying commentary note 12, the
district court erred by imposing on him the burden of showing
that he did not intend or was not reasonably capable of providing
the agreed-upon quantity. Garza urges the court to adopt the
rule in United States v. Hazut, 140 F.3d 187, 192 (2d Cir. 1998),
that, while the defendant must come forward with some evidence
that establishes his lack of intent or capability, the ultimate
burden of proof remains with the Government. Because it was not
raised below, we review this issue for plain error. See United
States v. Wheeler, 322 F.3d 823, 827 (5th Cir. 2003).
The district court did not base its ruling on the failure of
Garza to meet his burden of proof. Instead, it found that the
evidence showed that Garza intended to complete the transaction
and was reasonably capable of doing so. Under the rule that
Garza urges the court to apply, there was no error, as Garza did
not present evidence showing his lack of intent or capability.
Although it is possible, as Garza suggests, that Garza had a
change of heart and attempted to flee after failing to complete
the transaction, that fact does not vitiate his earlier intent to
sell the entire quantity of drugs under negotiation. Moreover,
Garza’s substantial rights were not affected because the district
court could have imposed the same sentence under Garza’s theory
of the case. See id. at 828. The judgment is
AFFIRMED.