No. 99-20557 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20557 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellant, versus

MARGARITA PEREZ,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CR-386-1 -------------------- February 16, 2000

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

The Government appeals the sentence imposed on Margarita

Perez after her guilty-plea conviction for aiding and abetting

possession with intent to distribute cocaine in violation of

(a)(1), (b)(1)(B) and

. The Government

argues that the district court clearly erred in determining that

Perez was not reasonably capable of producing the negotiated

eight kilograms of cocaine. Because the district court’s

determination that Perez was not reasonably capable of producing

the negotiated eight kilograms of cocaine was plausible in light

of the record as a whole, the district court did not clearly err

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20557 -2-

in determining that Perez should not be held responsible for

eight kilograms of cocaine. See United States v. Vine,

(5th Cir. 1995); United States v. Graves,

(5th Cir. 1993).

For the first time on appeal, the Government argues that the

district court erroneously placed the burden of proof on the

Government to show that Perez was not reasonably capable of

producing eight kilograms of cocaine. Because the Government did

not raise the issue of burden of proof in the district court,

review is limited to plain error. United States v. Calverley,

(5th Cir. 1994) (en banc). Under Fed. R. Crim.

P. 52(b), this court may correct forfeited errors only when the

appellant shows the following factors: (1) there is an error,

(2) that is clear or obvious, and (3) that affects his

substantial rights. Calverley,

-64 (citing United

States v. Olano,

(1993)). If these factors

are established, the decision to correct the forfeited error is

within the sound discretion of the court, and the court will not

exercise that discretion unless the error seriously affects the

fairness, integrity, or public reputation of judicial

proceedings. Olano,

. The record indicates that

the district court sought argument from both the Government and

Perez’s counsel concerning whether Perez was capable of producing

eight kilograms of cocaine and concerning which party suggested

the eight kilogram amount. The Government has not shown that the

district court shifted the burden of proof on the Government, and

therefore, the Government has not shown plain error. See No. 99-20557 -3-

Calverley,

.

AFFIRMED.