Byron Sutton appeals concurrent 135-month sentences imposed on his guilty pleas to separate indictments charging him with two counts of distributing over 50 grams of crack, 21 U.S.C. § 841(a)(1) (appeal no. 03-4123), and one count of conspiring to distribute crack,
id.
§§ 846, 841(a)(1) (appeal no. 04-2358). Sutton argues that the district court erred by relying on one of two contradictory statements given at his change of plea hearing regarding the weight of the drugs. He further argues, based on
United States v. Booker,
— U.S. -,
I.
Sutton pleaded guilty without a plea agreement. At the change of plea hearing, the government proffered that as part of a conspiracy Sutton twice sold 103 grams of crack to an undercover agent, first in October 2002 and then again the following month. When the district court asked Sutton to verify the accuracy of this factual basis, he at first agreed that he sold “103 grams” of crack in October 2002 but moments later characterized the quantity as “three ounces” (roughly 85 grams). Then while discussing the November 2002 transaction Sutton admitted the quantity of crack was “more than 50” grams but denied it was 103 grams.
The probation officer accepted the government’s representation that both transactions involved 103 grams, and thus recommended a base offense level of 34 *474 because the total was more than 150 grams but less than 500. See U.S.S.G. § 2Dl.l(c)(4). The probation officer also recommended a two-level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility.
Before sentencing, Sutton’s lawyer objected to the omission of a third point for acceptance of responsibility, see U.S.S.G. § 3El.l(b)(2), but did not challenge the drag quantity. Neither did counsel object to the drug amount at the sentencing hearing, but Sutton did. When given the chance to allocute, he advised the court that all along he had been telling counsel that the drug amount for the October 2002 transaction was overstated: “You cannot get that much drug amount with three ounces .... Therefore, they overstated [the] drug amount to put me at level 34.” The district judge reviewed the plea transcript and concluded that Sutton in fact had admitted that the October 2002 transaction involved 103 grams of crack. The court did not explain why it disregarded Sutton’s inconsistent references to “three ounces” during the same colloquy. The court also found that Sutton had admitted during the plea colloquy that the November 2002 transaction involved more than 50 grams. The total, reasoned the court, thus exceeded 150 grams just based on Sutton’s “own words.” After then giving Sutton the third acceptance point and calculating the range to be 135 to 168 months, the court imposed the low end, just 15 months above the ten-year minimum mandatory sentence. See 21 U.S.C. § 841(a)(1), (b)(1)(A). The court also ordered that Sutton repay the $2,500 buy money.
II.
Sutton gave different answers at his plea colloquy when asked to verify the prosecutor’s representation about the quantity of crack involved in the October sale. He thus contends it was error for the district court to rely on the higher of the two amounts at sentencing without explaining its choice.
Drug quantity is a factual finding that we review in the same manner as before
Booker,
for clear error.
United States v. Parra,
Whether or not Sutton’s two estimates of the October 2002 drug quantity can be reconciled, the district court did not commit clear error in choosing 103 grams as the drag amount because an adequate evidentiary basis supports its finding. Sutton wants us to focus on his statements at the plea colloquy, but what controls the analysis is the “entire evidence” before the district court.
United States v. Span,
Still, says Sutton, his disagreement with the government’s proffer during the plea colloquy means that the quantity calculation rests on facts that were neither admitted nor found by a jury beyond a reasonable doubt. He concedes that this constitutional argument under
Booker
was not raised in the district court and thus is reviewable only for plain error. ' Under this standard, there must be an error and it must be plain.
United States v. Paladino,
Any fact other than a prior conviction that increases the maximum penalty established by a jury verdict or a guilty plea must be admitted by the defendant or proved to a jury beyond a reasonable doubt.
Booker,
Finally, Sutton argues that there is a conflict between the oral pronouncement of his sentence and the written judgment. At sentencing the government requested that as a condition of his supervised release, Sutton be ordered to reimburse the $2,500 investigators paid him for the crack. The district court responded: “All right. I will, yes, I will include that.” Sutton takes no issue with the court’s ruling but instead argues that the written judgment improperly categorizes the $2,500 as restitution. In a section titled “Criminal Monetary Penalties,” the written judgment includes three columns with preprinted headings: one for “Assessment,” under which is typed $200; a second for “Fine,” under which is typed “waived”; and a third for “Restitution,” under which nothing is typed. Next to the “Restitution” *476 column the court added a fourth column, by typing the heading “Buy money” and then typing “$2,500.00” underneath.-• Elsewhere in the judgment the court also stated explicitly that the $2,500 was to be repaid as a condition of supervised release. We agree with the government that Sutton simply misreads the judgment; in fact it is entirely consistent with the court’s oral pronouncement.
III.
Sutton’s arguments about drug quantity and repayment of the buy money are without merit, but we order a Limited Remand in accordance with Paladino and will retain jurisdiction pending the conclusion of further proceedings in the district court.
