United States v. Reed , 4 F. App'x 575 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
FEB 2 2001
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-2150
(D. N.M.)
MICHAEL WAYNE REED, (D.Ct. No. CR-98-177)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges.
Appellant Michael Wayne Reed appeals his sentence following his guilty
plea to conspiracy to manufacture and possess, with intent to distribute,
methamphetamine. On appeal, Mr. Reed raises issues on the reliability of the
evidence supporting the district court’s drug quantity determination and
application of a two-level firearm enhancement in calculating his sentence. Mr.
Reed’s appeal also raises sentencing issues based on the United States Supreme
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348(2000). We exercise our jurisdiction under 28 U.S.C. 1291 and affirm.
I. BACKGROUND
On February 25, 1998, federal drug enforcement agents arrested Mr. Reed,
Bree Anne McClesky, and James Michael Cousert in Truth or Consequences, New
Mexico, following an investigation into their manufacture of methamphetamine.
Agents arrested Ms. McClesky and Mr. Cousert in a motel room, and later that
same day, arrested Mr. Reed at a convenience store. When arresting Mr. Cousert
and Ms. McClesky in the motel room, agents found more than ten grams of
methamphetamine, and large quantities of ingredients and equipment used to
manufacture methamphetamine. At the time of Mr. Reed’s arrest, agents found a
key to the motel room and small amounts of methamphetamine residue in the
backpack he wore, his .45 mm. caliber pistol on the front seat of his car, and
various ingredients and equipment used to make methamphetamine in his car
trunk. Agents later searched Mr. Reed’s residence, again discovering various
ingredients and equipment used to make methamphetamine, as well as a .9mm
handgun.
On March 18, 1998, a grand jury returned a two-count indictment against
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all three individuals. Count I charged them with a conspiracy to manufacture and
possess with intent to distribute less than ten grams of methamphetamine, and
aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, and
18 U.S.C. § 2. Count II charged them with possession with intent to distribute
less than ten grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 18 U.S.C. § 2. On May 27, 1998, the grand jury returned a
two-count superseding indictment against the three defendants, which included
the same two counts as before, but for the first time identified the period of the
conspiracy from January 15, 1997 to February 26, 1998, increased the amount of
methamphetamine in Count I from less than ten grams of methamphetamine to
100 grams or more of methamphetamine, and changed the applicable penalty
statute from 21 U.S.C. § 841(b)(1)(C) to § 841(b)(1)(A).
Ms. McClesky and Mr. Cousert pled guilty to Count II of the superseding
indictment. Mr. Reed pled guilty to Count I, the conspiracy count in the
superseding indictment, in exchange for the government dismissing Count II. As
part of the plea agreement, Mr. Reed waived his right to trial by jury, but
disagreed he was accountable for 100 grams or more of methamphetamine as
charged in Count I. Instead, Mr Reed agreed the district court could determine
the quantity of methamphetamine attributable to him after presentation by both
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parties of evidence at the sentencing hearing.
Prior to the sentencing hearing, the United States Probation Officer
(Probation Officer) prepared a presentence report, finding 7.07 kilograms of a
methamphetamine mixture attributable to Mr. Reed under the conspiracy count. 1
Based on this finding, the Probation Officer recommended a base offense level of
36 under United States Sentencing Guideline § 2D1.1(c)(2), 2 and enhancing the
base offense level by two levels under § 2D1.1(b)(1) for Mr. Reed’s possession of
a handgun. Furthermore, the Probation Officer recommended reducing the base
offense level by two levels for Mr. Reed’s admission to participating in a
conspiracy under § 3E1.1(a) and one level for his cooperation under
§ 3E1.1(b)(1). Applying the resulting total offense level of 35 and a Criminal
History Category of I, the Probation Officer recommended a sentence range of
1
Because one kilogram is equivalent to 1,000 grams, 7.07 kilograms is 7,070
grams.
2
Under the 1999 Drug Quantity Table, contained in U.S.S.G. § 2D1.1(c)(2), an
offense level of 36 is prescribed for either: 1) a quantity of methamphetamine “mixture”
of at least five, but less than fifteen kilograms, or 2) at least one, but less than three
kilograms of “actual” (or “pure”) methamphetamine. See U.S.S.G. § 2D1.1(c)(2)(1998);
see also United States v. Gigley, 213 F.3d 509, 518-19 (10th Cir. 2000). In this case, the
Probation Officer based the offense base level of 36 on the quantity of the
methamphetamine “mixture,” rather than the quantity of “pure” methamphetamine
initially produced.
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168 to 120 months in prison pursuant to the applicable Sentencing Table. See
U.S.S.G. Chapter 5, Part A (Sentencing Table). In Mr. Reed’s objections to the
presentence report, he explicitly objected to the Probation Officer’s application of
the firearm enhancement and drug quantity determination in calculating his base
offense level at 36.
At the sentencing hearing, the government introduced Mr. Cousert’s and
Ms. McClesky’s inculpatory statements made to Drug Enforcement Agent Mark
Payne, and which implicated Mr. Reed in the conspiracy. In addition, Mr.
Cousert testified, stating he purchased the pseudoephedrine tablets Mr. Reed used
to manufacture methamphetamine. More importantly, Mr. Cousert admitted he
attended five “cooks” conducted by Mr. Reed. On this subject, the district court
entered into the following colloquy with Mr. Cousert:
THE COURT: You also say [in your statement to Agent Payne] “On
each cook, Reed would make a total of two pounds of pure
methamphetamine. After the cook was completed and they had
finished the product, Reed would cut it with vitamin B at a ratio of
two pounds of cut to one pound of crank. This made a total of six
pounds of crank after each cook.”
Is that a correct statement?
[MR. COUSERT]: Yes, Your Honor.
THE COURT: So you saw him, on five times, make two pounds of
methamphetamine?
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[MR. COUSERT]: I don’t know if exactly each time. Maybe a
couple of them was one pound. But, yes, Your Honor.
THE COURT: Okay.
[MR. COUSERT]: That’s just guesstimated.
While Mr. Cousert did not testify to the specific dates on which he witnessed the
five “cooks,” he explicitly said in his statement to Agent Payne that these “cooks”
occurred between August 1997 and the date of his arrest on February 25, 1998.
In addition, Mr. Cousert testified that during the time of the subject
“cooks,” he considered himself an addict, used lots of drugs including
methamphetamine and cocaine, and got high “just about every day”. Mr. Cousert
also stated he retained “a pretty good, clear memory” even when high on drugs,
and insisted he remained coherent and off of drugs for approximately seven
months prior to making his statement to Agent Payne. Mr. Cousert also testified
Mr. Reed usually carried a gun to protect his money and drugs.
Agent Payne also testified at the sentencing hearing. Agent Payne verified
Mr. Cousert told him Mr. Reed conducted five “cooks” from August 1997 until
his arrest, which produced two pounds of pure methamphetamine Mr. Reed “cut”
at a two-to-one ratio with vitamin-B. Although Ms. McClesky did not testify at
the sentencing hearing, Agent Payne testified about the statement she made to
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him. Specifically, Agent Payne testified that Ms. McClesky admitted being
present at a “cook” where Mr. Reed manufactured two pounds of pure
methamphetamine. In her statement, Ms. McClesky said the “cook” she attended
occurred in December 1997. She also admitted she was assisting Mr. Cousert and
Mr. Reed in preparing for a “cook” on the day of her arrest.
Finally, the Probation Officer testified on the presentence report she
prepared. She explained she relied on the information Agent Payne provided to
her, including the statements made by Mr. Cousert and Ms. McClesky, in finding
7.07 kilograms of mixed methamphetamine attributable to Mr. Reed and
recommending the firearm enhancement.
At the conclusion of the sentencing hearing, the district court made explicit
findings, stating:
I find by a preponderance of the evidence that the presentence report
is correct that there’s seven kilograms of methamphetamine. I’ve
given it rigorous scrutiny, I’ve watched the one witness testify, I’ve
watched Agent Payne testify, and I find him to be totally credible.
And your witness has testified – Mr. Cousert, although he was a drug
addict, he seems to remember fairly well as to what happened. It’s
also corroborated by the statement that was given by Bree McClesky
to Agent Payne.”
The district court then adopted the factual findings and guideline applications in
the presentence report, and sentenced Mr. Reed to a term of 168 months (or
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fourteen years) in prison.
II. DISCUSSION
On appeal, Mr. Reed raises three issues for review. First, he argues the
drug quantity evidence presented at the sentencing hearing lacks a sufficient
indicia of reliability for the purpose of determining his base offense level at 36.
Second, Mr. Reed challenges the sufficiency of the evidence supporting his
firearm enhancement. Finally, Mr. Reed contests the constitutionality of his
sentence under the United States Supreme Court’s decision in Apprendi v. New
Jersey. We discuss each issue in turn.
A. Reliability of Evidence on the Quantity of Methamphetamine
The crux of Mr. Reed’s appeal centers on his claim the drug quantity
evidence presented at the sentencing hearing did not contain “a sufficient indicia
of reliability” required under U.S.S.G. § 6A1.3, for the purpose of determining
his base offense level of 36. In support, Mr. Reed challenges the district court’s
reliance on Mr. Cousert’s testimony because he: 1) was a heavy
methamphetamine user and provided contradictory and unreliable information; 3 2)
3
Mr. Reed raises this same contention about Ms. McClesky. In her statement,
Ms. McClesky admitted she used methamphetamine since the age of sixteen, and
purchased one to two ounces from Mr. Reed between 1994 through 1998. However, Mr.
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offered testimony that did not ascertain a specific quantity of methamphetamine;
and 3) did not provide sufficient information narrowing the time-frame when Mr.
Reed manufactured the methamphetamine. Thus, Mr. Reed asserts the district
court improperly relied on “the contradictory guesstimates of an addict-
informant.”
Mr. Reed also suggests the district court failed to make required findings
on whether: 1) Mr. Cousert’s drug use affected his memory to any degree; 2) Mr.
Cousert or Mr. Reed “cut” the methamphetamine with vitamin B; 3) Mr. Cousert
knew how to make methamphetamine; 4) the five “cooks” produced one or two
pounds of methamphetamine; and 5) Mr. Cousert’s information was specific
enough as to the date of the conspiracy and quantity. Finally, Mr. Reed finds
fault with the Probation Officer’s reliance on Mr. Cousert’s and Ms. McClesky’s
Reed fails to point to any evidence, and we find none in the record, to show Ms.
McClesky is an addict or that the information in her statement was somehow
contradictory or unreliable.
Mr. Reed also suggests Mr. Cousert provided contradictory and unreliable
evidence because he denied sending a letter to Mr. Reed’s sister, which she testified she
received from him. We note the letter was not produced at the sentencing hearing. In any
event, we leave such credibility determinations to the district court. See United States v.
Nieto, 60 F.3d 1464, 1469-70 (10th Cir. 1995), cert. denied, 515 U.S. 1081 (1996).
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statements in preparing the presentence report. 4
The principles we must apply for reviewing Mr. Reed’s drug quantity
argument are well settled. We review the district court’s drug quantity
determination “under a clearly erroneous standard, and we will not disturb it
unless it has no support in the record or unless, after reviewing all the evidence,
we are firmly convinced that an error has been made.” See Nieto, 60 F.3d at
1469. “The quantum of proof necessary to support a drug quantity determination
4
In addition, Mr. Reed contends the district court failed to make a finding on
whether Mr. Cousert influenced Ms. McClesky. We assume Mr. Reed’s argument stems
from Mr. Reed’s sister’s testimony she received a letter from Mr. Cousert, in which he
stated Ms. McClesky would do whatever he did. Regardless of whether Mr. Cousert sent
the letter to Ms. Reed, nothing in the record establishes Mr. Cousert ever contacted or
influenced Ms. McClesky prior to her making her statement to Agent Payne.
Furthermore, Mr. Reed argues the district court failed to make a requisite finding
on whether Mr. Cousert testified against Mr. Reed in exchange for a lighter sentence or to
protect himself from statements against his own penal interest. We note Mr. Cousert’s
statement clearly implicated Mr. Cousert in the conspiracy, and, therefore, was against his
own penal interest and had an indicia of credibility. See United States v. Sporleder, 635
F.2d 809, 812 (10th Cir. 1980); United States v. Hampton, 633 F.2d 927, 929 (10th Cir
1980), cert. denied, 449 U.S. 1128 (1981). Later, when Mr. Cousert testified, he was
already serving a fifty-seven-month sentence on the possession charge, and stated he was
not receiving any benefit from testifying against Mr. Reed. As recognized by the Seventh
Circuit, a co-conspirator’s motive for testifying does not necessarily render that testimony
inherently unreliable. See United States v. Edwards, 115 F.3d 1322, 1331 (7th Cir. 1997).
Under the circumstances presented, the credibility of Mr. Cousert’s testimony, including
his motivation for testifying, was for the district court to evaluate. Id. In this case, the
district court clearly relied on that testimony and found it credible.
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is preponderance of the evidence.” United States v. Ruiz-Castro, 92 F.3d. 1519,
1534 (10th Cir. 1996). It is well established a district court’s use of estimates is
an acceptable method for calculating drug quantities, so long as the information
underlying those estimates has “a sufficient indicia of reliability.” U.S.S.G.
§ 6A1.3(a); see also Ruiz-Castro, 92 F.3d at 1534; United States v. Browning, 61
F.3d 752, 754 (10th Cir. 1995). Thus, “[w]e have allowed quantity
determinations to be based on a variety of circumstances, so long as they have
‘some basis of support in the facts of the particular case.’” Nieto, 60 F.3d at 1469(quotation marks omitted). The drug amount attributable to a defendant for
purposes of sentencing is not established by looking at the amount of drugs
involved in the conspiracy as a whole, but to the quantity of drugs which he
reasonably foresaw and which fell within the scope of his particular agreement
with the co-conspirators. United States v. Ivy, 83 F.3d 1266, 1289 (10th Cir.),
cert. denied, 519 U.S. 901 (1996). Finally, we defer to the district court when
reviewing the credibility of witnesses on whose testimony the district court relies
in making its drug quantity factual findings. See Nieto, 60 F.3d at 1469-70.
In this case, the district court clearly made an explicit finding of fact
attributing seven kilograms of methamphetamine to Mr. Reed, expressly assessed
the witnesses’ credibility, and made determinations on the reliability of their
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testimony, including Mr. Cousert’s memory. For the following reasons, we
conclude sufficient evidence exists in the record to support the reliability of the
information and estimates on which the district court based these findings.
We begin with the district court’s reliance on Mr. Cousert’s statement and
testimony. It is clear the district court was fully aware of Mr. Cousert’s prior
criminal record, drug dealing, and drug addiction. Nevertheless, the district court
credited his statements on the quantity of methamphetamine involved in the
conspiracy, finding Mr. Cousert seemed “to remember fairly well ... what
happened.” Thus, contrary to Mr. Reed’s contentions, the district court made an
explicit finding on whether drug use affected Mr. Cousert’s memory. The
reliability of Mr. Cousert’s testimony is demonstrated by the fact it remained
consistent with his prior statement to Agent Payne and was corroborated by Ms.
McClesky as to one “cook.” 5 As discussed later, the only relevant inconsistency
concerns Mr. Cousert’s one statement that a couple of the “cooks” he witnessed
may have produced only one pound of methamphetamine, instead of two.
In further assessing the district court’s reliance on Mr. Cousert’s testimony,
5
Unlike the addict-informant in United States v. Richards, 27 F.3d 465, 469 (10th
Cir. 1994), Mr. Cousert’s testimony was not vague, uncorroborated or contradictory.
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we also find it irrelevant whether Mr. Cousert knew exactly how to make
methamphetamine, or whether he or Mr. Reed actually cut the pure
methamphetamine with vitamin B. First, we find nothing in the record indicating
Mr. Cousert, and not Mr. Reed, “cut” the methamphetamine with vitamin B
during the subject “cooks.” Moreover, even if Mr. Cousert “cut” the
methamphetamine in issue, his actions in this case are attributable, as a co-
conspirator, to Mr. Reed who also participated in the “cooks” which produced the
methamphetamine for which Mr. Reed received his conspiracy conviction. See
Ruiz-Castro, 92 F.3d at 1537-38; United States v. Kendall, 766 F.2d 1426, 1431
(10th Cir. 1985), cert. denied, 474 U.S. 1081 (1986). Second, while Mr. Cousert
admitted he was not an expert in making methamphetamine, it is clear, based on
his prior drug use, drug dealing, and participation in the five “cooks,” Mr.
Cousert had personal knowledge on the basics of making methamphetamine, knew
Mr. Reed was manufacturing methamphetamine, and could estimate how much
Mr. Reed produced. Under these circumstances, we hold Mr. Cousert’s testimony
demonstrated “a sufficient indicia of reliability”; therefore, the district court’s
reliance on it was not clearly erroneous.
In so holding, we reject Mr. Reed’s request for this Circuit to adopt a
special standard for interpreting addict-witness testimony. In support of his
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request, Mr. Reed relies on four other circuit court cases that held the information
provided by a drug addict was unreliable. See United States v. McEntire, 153
F.3d 424 (7th Cir. 1998); United States v. Miele, 989 F.2d 659 (3d Cir. 1993);
United States v. Simmons, 964 F.2d 763 (8th Cir.), cert. denied, 506 U.S. 1011(1992); United States v. Robison, 904 F.2d 365 (6th Cir.), cert. denied, 498 U.S.
946 (1990). Our decision in Browning distinguished three of these cases, and no
further discussion is warranted other than to say they are distinguishable in this
case for the same reasons articulated in that decision. See 61 F.3d 755 n.2. As to
the other case on which Mr. Reed relies, we similarly find it distinguishable. In
McEntire, unlike here, the addict-witness admitted his use of methamphetamine
affected his memory, lied to benefit himself, and made four different unsupported,
uncorroborated drug quantity estimates. 153 F.3d at 437. Given these
distinctions, we see no reason, and Mr. Reed has presented no authority, to invent
a special standard to assess the reliability of Mr. Cousert’s testimony in this case.
As stated in Browning, we will not second guess the district court’s credibility
assessment of an addict-witness. See 61 F.3d at 754-55.
Turning to the estimated drug quantity attributable to Mr. Reed, we
acknowledge the district court made no explicit finding on whether each of the
five “cooks” produced one or two pounds of pure methamphetamine. However,
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for the following reasons, the absence of such a finding is harmless error under
the circumstances presented in this case.
As background, U.S.S.G. § 2D1.1.(c) provides a Drug Quantity Table for
the purpose of determining the base offense level. It provides for a base offense
level of 36 for “[a]t least 5 [kilograms] but less than 15 [kilograms] of
Methamphetamine, or at least 1 [kilogram,] but less than 3 [kilograms] of
Methamphetamine (actual).” U.S.S.G. § 2D1.1(c)(2) (1998). 6 In other words,
§ 2D1.1(c)(2) provides two ways of calculating the base offense level for
methamphetamine convictions. One method of calculation is based on the
quantity of a methamphetamine “mixture,” while the other is based on the amount
of “pure” methamphetamine contained in that “mixture.” See Gigley, 213 F.3d at
518-59. In determining the base offense level, the sentencing judge must use the
greater base offense level – i.e., the greater level resulting from either the weight
of the methamphetamine “mixture” or the weight of “pure” methamphetamine
contained in that “mixture.” 7 Id. at 519.
6
The 1998 Sentencing Guideline applies to Mr. Reed’s 1999 sentence. Effective
November 1, 2000, the amount of “actual” or “pure” methamphetamine was decreased to
at least 500 grams, but less than 1.5 kilograms. See U.S.S.G. § 2D1.1(c)(2) (2000) &
Dec. 16, 2000 Supp.
7
See U.S.S.G. § 2D1.1(c) n. (B), which provides:
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In this case, even if Mr. Reed produced only one pound of pure
methamphetamine 8 during each of the five “cooks,” the base offense level of 36
does not change, regardless of whether the drug quantity is based on “pure”
methamphetamine or a methamphetamine “mixture.” This is because, under a
“pure” methamphetamine calculation, it is clear the five pounds of “pure”
methamphetamine Mr. Reed manufactured is equal to 2.268 kilograms of “pure”
methamphetamine. 9 This amount of “pure” methamphetamine is at least one, but
less than three kilograms of “pure” methamphetamine, as required for a base
offense level of 36. See U.S.S.G. § 2D1.1(c)(2) (Drug Quantity Table) (1998).
Similarly, if we calculate the total methamphetamine “mixture,” based on
The terms “PCP (actual)” and “Methamphetamine (actual)” refer to the
weight of the controlled substance, itself, contained in the mixture or
substance. For example, a mixture weighing 10 grams containing PCP at
50% purity contains 5 grams of PCP (actual). In the case of a mixture or
substance containing PCP or methamphetamine, use the offense level
determined by the entire weight of the mixture or substance, or the offense
level determined by the weight of the PCP (actual) or methamphetamine
(actual), whichever is greater.
8
Applying only one pound per “cook” is a conservative estimate given Ms.
McClesky’s statement corroborated the fact that at least one of the “cooks” produced two
pounds of “pure” methamphetamine.
9
Because one pound is equivalent to .4536 kilograms, five pounds is 2.268
kilograms. See U.S.S.G. § 2D1.1, Appl. n.(10) (Measurement Conversion Table).
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the conservative estimate that each “cook” produced only one pound of
methamphetamine, Mr. Reed’s base offense level remains at 36. This is because
five pounds of methamphetamine, mixed at a two-to-one ratio of vitamin B to
“pure” methamphetamine results in fifteen pounds, or 6.804 kilograms, of
methamphetamine “mixture.” 10 Again, this amount is at least five, but less than
fifteen kilograms of a methamphetamine “mixture,” as required for a offense base
level of 36. See U.S.S.G. § 2D1.1(c)(2) (Drug Quantity Table) (1998). Thus,
under either drug amount calculation, it is clear the quantity of methamphetamine
manufactured is within the applicable base offense level of 36, which the district
court correctly applied. 11 Obviously, Mr. Reed could reasonably foresee either
amount of “pure” or mixed methamphetamine because he directly participated in
the five subject “cooks.”
10
Five pounds of “pure” methamphetamine combined with ten pounds of vitamin-
B results in fifteen pounds of methamphetamine “mixture.” Fifteen pounds, at .4536
kilograms per pound, is equivalent to 6.805 kilograms of mixed methamphetamine.
11
It is unclear from the presentence report how the Probation Officer arrived at a
total of 7.07 kilograms of a methamphetamine “mixture.” However, despite any
perceived error in the Probation Officer’s calculation, or the district court’s reliance
thereon, the error is harmless given the most conservative calculation of only one pound
of “pure” methamphetamine for each of the five “cooks” results in a base offense level of
36. See, e.g., United States v. Humphrey, 208 F.3d 1190, 1209-10 (10th Cir. 2000)
(holding any error in estimate of drug quantity was harmless given the offense level did
not change); Deninno, 29 F.3d at 579 (same).
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Next, sufficient, reliable evidence exists in the record to ascertain the dates
on which the methamphetamine “cooks” occurred. In his statement, Mr. Cousert
indicated the “cooks” he witnessed occurred between August 1997 and his arrest
on February 25, 1998. In Ms. McClesky’s statement, she said the “cook” she saw
occurred in December 1997. Both of these statements place the conspiracy within
the time-frame charged – between January 15, 1997 and February 25, 1998.
While neither statement specifies an exact date, they are not so vague nor
unreliable to establish the district court erred in relying on them. See United
States v. Smith, 806 F.2d 971, 973-74 (10th Cir. 1986) (explaining the law of this
circuit was reflected in a jury instruction which stated the proof as to a date “need
not establish with certainty the exact date of any alleged offense because it [is]
sufficient if the evidence in the case established beyond a reasonable doubt that
the offense charged [was] committed on dates reasonably near the dates
alleged.”).
Finally, nothing in the record suggests the Probation Officer’s reliance on
Mr. Cousert’s and Ms. McClesky’s statements in preparing her presentence report
was unfounded, or that the district court erred in relying on that report. See
United States v. Hershberger, 962 F.2d 1548, 1555 (10th Cir. 1992). The district
court may consider the Probation Officer a reliable source and may determine the
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weight given information presented at the sentencing hearing, including the
information relied on in the presentencing report and presented at the sentencing
hearing. Id.In sum, we hold the information underlying the drug estimates and
conspiracy dates had the “sufficient indicia of reliability” necessary to support the
district court’s finding. See Browning, 61 F.3d at 754. Accordingly, the district
court’s drug quantity calculation resulting in a base offense level of 36 is not
clearly erroneous.
B. Firearm Enhancement
The next argument Mr. Reed presents on appeal concerns the district
court’s two-level enhancement under U.S.S.G. §2 D1.1(b)(1) for possession of a
firearm. Mr. Reed argues the government presented no evidence showing the
gun’s proximity to the offense. Specifically, Mr. Reed suggests no evidence
shows the gun found in his car was “used in the completion of or commission of
any drug transaction,” or in other words, had “a temporal connection” with any
drug transaction. 12
12
In support, Mr. Reed points out: 1) he was not engaged in a drug transaction
when agents arrested him at the convenience store; 2) the addendum to the presentencing
report confirms the weapon was not being transported during a drug transaction; 3) Mr.
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Sentencing Guideline § 2D1.1 “provide[s] for an offense level enhancement
of two points ‘[i]f a dangerous weapon (including a firearm) was possessed’
during a drug conspiracy.” United States v. Vaziri, 164 F.3d 556, 568 (10th Cir.
1999) (quoting U.S.S.G. § 2D1.1(b)(1)). In determining whether this
enhancement is applicable in this case, we review the district court’s factual
findings for clear error, give due deference to the district court’s application of
§ 2D1.1(b)(1) to the facts, and review purely legal questions de novo. Id. “The
initial burden is on the government to prove possession of the weapon by a
preponderance of the evidence, which may be satisfied by showing ‘mere
proximity to the offense.’” Humphrey, 208 F.3d at 1210. “The government’s
initial burden is met when it shows that a weapon was located near the general
location where at least part of the drug transaction occurred.” United States v.
Heckard, ___ F.3d ___, 2001 WL 15532, *8 (10th Cir. Jan. 8, 2001) (quotation
marks and citation omitted). “After the government has met this burden, a
defendant can still avoid the enhancement if he can prove that it is clearly
improbable that the weapon was connected to the offense.... [I]n a drug
Cousert’s statement that Mr. Reed flashed the gun and used it to protect his money and
drugs was conclusory and unsupported by specific evidence; 4) the presentence report
incorrectly stated the government found the gun in the same location where drugs were
stored; and 5) no evidence showed the “prior disposition” of the gun, its proximity to the
motel room used to make methamphetamine; or that he used it “to protect anything
related to the conspiracy that was in his car.”
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conspiracy conviction, the adjustment should be applied unless it is clearly
improbable that the weapon was connected with the conspiracy offense.”
Humphrey, 208 F.3d at 1210.
In this case, Mr. Reed asserts a § 2D1.1(b)(1) firearm enhancement is
improper because he was not conducting a “drug transaction” to sell drugs to
anyone at the convenience store while he had the gun in his possession. However,
the drug offense or transaction for which Mr. Reed was convicted is based on
conspiracy to manufacture with intent to distribute methamphetamine; therefore,
it is irrelevant whether he sold drugs to anyone at the store. 13 Instead, we may
look at the gun’s connection to or in proximity with the conspiracy, including the
items Mr. Reed used or intended to use to manufacture methamphetamine as part
of that conspiracy. See Humphrey, 208 F.3d at 1210; Flores, 149 F.3d at 1280.
The first instance demonstrating the gun’s connection or proximity with the
conspiracy involves the actual location of the gun. At the time of his arrest,
13
In support of this conclusion, we point out that § 2D1.1(b) is designed to reflect
the increased danger of violence when drug traffickers add firearms to the mix, and that
“it is not necessary for the Government to show that drugs and money changed hands near
the weapon; the weapon itself may simply serve as a potentially deadly means of
protecting the trafficker’s goods, thereby increasing the danger of violence.” United
States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998), cert. denied, 525 U.S. 1092(1999).
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agents found Mr. Reed’s gun on the front passenger seat of his car and discovered
methamphetamine-making ingredients and equipment in the trunk. This alone is
sufficient evidence to show the gun was connected to, or in proximity with, the
conspiracy because it establishes a temporal and spacial nexus between the gun in
Mr. Reed’s car and the drug manufacturing materials found in his trunk. See
Flores, 149 F.3d at 1280.
The record also clearly shows that on the day of his arrest, Mr. Reed
conspired to participate in the manufacture of methamphetamine in the motel
room where agents arrested Mr. Cousert and Ms. McClesky and found large
quantities of methamphetamine-making equipment and ingredients. Strong
circumstantial evidence, including Mr. Reed’s possession of the motel room key,
suggests he was transporting himself, and the equipment, ingredients, and gun, to
the motel as part of this continuing conspiracy. Given these facts, Mr. Reed fails
to demonstrate it is “clearly improbable that the gun was connected to the
conspiracy.” Humphrey, 208 F.3d at 1210.
Finally, Mr. Cousert testified his co-conspirator, Mr. Reed, usually carried
a gun for protection of his money and drugs. This statement indicates Mr. Reed
possessed a firearm during the conspiracy between Mr. Cousert and Mr. Reed to
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manufacture methamphetamine. Based on all the facts presented, Mr. Reed
plainly fails to carry his burden in proving it was “clearly improbable that the gun
was connected the conspiracy.” 14 Id. Accordingly, we conclude the district court
did not err in applying the two-level firearm enhancement in calculating Mr.
Reed’s sentence.
C. Apprendi Argument
Mr. Reed’s final argument is based on the United States Supreme Court’s
decision in Apprendi v. United States. He raised this argument for the first time
during oral argument. 15 Mr. Reed contends his 168-month sentence is illegal
under Apprendi because the indictment charged him with 100 grams or more of
14
While Mr. Reed’s argument on appeal is devoid of any discussion of the other
handgun involved in this case, evidence shows agents discovered a .9mm handgun in his
home as well as various drug-making paraphernalia and ingredients used to make
methamphetamine. Mr. Cousert testified four of the “cooks” in which he participated
occurred at Mr. Reed’s home in Truth or Consequences and that Mr. Reed usually carried
a gun for protection of his money and drugs. This evidence indicates Mr. Reed possessed
a firearm during their conspiracy together to manufacture methamphetamine, and thus,
the handgun found in his residence both corroborates this evidence and supports the
firearm enhancement. In sum, it shows “a weapon was located near the general location
where part of the conspiracy occurred.” Heckard, ___ F.3d at ___, 2001 WL 15532, at
*8.
15
Because the Supreme Court’s Apprendi decision post-dated Mr. Reed’s notice
of appeal, we granted Mr. Reed permission to file a supplemental brief outlining his
Apprendi argument, and provided the government an opportunity to respond thereto.
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methamphetamine, while the drug quantity element was “left open and disputed in
[his] plea agreement.” Because he “never acceded to possession of any amount,”
he contends no constitutional basis existed for sentencing him for “possession” of
over 100 grams without a trial by jury and a finding of possession with intent to
distribute beyond a reasonable doubt. Mr. Reed also suggests the maximum
penalty he faced was “nebulous” because if he was found guilty of “possessing”
less than 100 grams, he could have faced a sentence of five-to-forty years under
§ 841(b)(1)(B)(viii), but if it was in excess of 100 grams, he faced a sentence of
ten years-to-life in prison under § 841(b)(1)(A). Consequently, he contends he
never received “notice” of the maximum statutory amount applicable to him
because it “not determined with any specificity in the plea agreement.” Mr. Reed
also claims his sentence is void under Apprendi because his possession of a
firearm was not charged in the indictment nor proven beyond a reasonable doubt
to a jury. After a review of the record, we conclude Mr. Reed fails to present a
colorable Apprendi claim.
We review Mr. Reed’s Apprendi argument for plain error. See United
States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000). As in this case, “[w]here
the law was settled at the time of trial, [but] clearly contrary to the law on
appeal,” a plain-error standard of review is applied. Id. “To notice plain error
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under [Federal Rule of Criminal Procedure] 52(b), the error must (1) be an actual
error that was forfeited; (2) be plain or obvious; and (3) affect substantial rights.”
Id. To affect a defendant’s substantial rights, “the error must be prejudicial, i.e. it
must have affected the outcome of the trial.” 16 Id. Prejudice in sentencing may
occur if “the alleged error resulted in an increased sentence for the defendant.”
United States v. Meshack, 225 F.3d 556, 577 (5th Cir. 2000), cert. denied, 121 S.
Ct. 834 (2001). Finally, “an appellate court should exercise its discretion and
notice such error where it either (a) results in the conviction of one actually
innocent, or (b) seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Keeling, 235 F.3d at 538 (quotation marks, alteration, and
citations omitted).
With this standard of review in mind, we consider the basic principle set
forth in Apprendi. In short, the Court in Apprendi held that “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 120 S. Ct. at 2362-63. We and our sister circuits have
16
Similarly, the United States Supreme Court has instructed that any error in
submitting an element of an offense to a judge and not a jury for determination, is subject
to a harmless error analysis to ascertain if the defendant’s substantial rights were affected.
See Neder v. United States, 527 U.S. 1, 9-10 (1999).
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determined Apprendi applies to 21 U.S.C. § 841(b). See Keeling, 235 F.3d at
538(referring to numerous other circuit court decisions holding the same).
Specifically, § 21 U.S.C. § 841(b) is a penalty statute, which expressly prescribes
different terms of imprisonment under subsections (A)-(D). Subsection (C) of §
841(b)(1) is a catch-all provision for any quantity of Schedule I or II drugs, and
does not require the amount of the drug charged to be proven. See United States
v. Rogers, 228 F.3d 1318, 1327 n.15 (11th Cir. 2000). However, the remaining
subsections – (A), (B) and(D)–prescribe penalties based on specifically
enumerated drug quantity amounts. See United States v. Shepard, 235 F.3d 1295,
___, 2000 WL 1839206, at *1 (11th Cir. Dec. 14, 2000). Because convictions
under these subsections can expose a defendant to a term of imprisonment greater
than the statutory maximum of twenty years prescribed under § 841(b)(1)(C), drug
quantity is considered an element in each of them. Id. For that reason, numerous
circuits have determined that in sentencing defendants under these statutes, the
drug quantity must be charged in the indictment, 17 explicitly set out in jury
17
See Rogers, 228 F.3d at 1327; Shepard, ___ F.3d at ___, 2000 WL 1839206, at
*1.
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instructions, 18 and proven to a jury beyond a reasonable doubt. 19
With these principles in mind, we begin our Apprendi analysis by reviewing
the content of the indictment. In this case, the superseding indictment for Count I
charged that Mr. Reed did “conspire ... [t]o manufacture and possess with intent
to distribute 100 grams and more of methamphetamine ... a Schedule II controlled
substance, contrary to 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A) [i]n
violation of 21 U.S.C. § 846 and 18 U.S.C. § 2.” The 1998 version of §
841(b)(1)(A), as charged in the superseding indictment, sets the length of
imprisonment at not less than ten years or more than life for manufacturing 100
grams or more of pure methamphetamine. See 21 U.S. C. § 841(b)(1)(A)(viii)
(1998). 20
Under the circumstances presented, nothing in the indictment is nebulous.
18
See United States v. Slaughter, ___ F.3d ___, ___, 2000 WL 1803643, at *3
(5th Cir. Dec. 8, 2000).
19
See Slaughter, ___ F.3d at ___, 2000 WL 1803643, at *3; Shepard, ___ F.3d at
___, 2000 WL 1892-6, at * 1.
20
The 100 grams or more amount applies to the 1998 version of the statute. The
current version of § 841(b)(1)(A) is more severe, requiring only an amount of 50 grams or
more of “pure” methamphetamine for a maximum term of imprisonment of life. See 21
U.S.C. § 841(b)(1)(A) (2000).
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Mr. Reed was clearly on notice of the type and quantity of drug for which he was
charged as well as the maximum penalty he faced – namely, life in prison. The
indictment further identified the offense charged, i.e., participation in a
conspiracy to manufacture and possess with intent to distribute methamphetamine.
In sum, the indictment gave Mr. Reed notice of: 1) the nature and cause of the
accusation against him, and 2) all the elements to be proven for conviction. See
Shepard, ___ F.3d at ___, 2000 WL 1839206, at *1. Thus, the indictment did not
contain an “actual error” that was “plain or obvious.” See Keeling, 235 F.3d at
538. Consequently, when Mr. Reed pled guilty to the conspiracy, but challenged
the amount charged, he knew the government would attempt to prove the drug
quantity charged in the indictment, and if so, he could face life in prison. Hence,
Mr. Reed received sufficient notice. Thus, he cannot show he experienced any
prejudice based on the indictment alone.
We next turn to Mr. Reed’s argument that the district court erred in
allowing him to plead guilty because Apprendi requires a jury determination on
the drug quantity element. In applying plain error analysis to a similar challenge,
we articulated the defendant’s burden in showing an Apprendi violation. We
stated that “[w]here the jury has not found quantity beyond a reasonable doubt
and quantity is integral to punishment, a defendant can demonstrate prejudice if
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the evidence suggests a reasonable doubt on quantity.” Keeling, 235 F.3d at 538.
In this case, even if Apprendi requires a jury determination on the drug
quantity attributable to Mr. Reed, 21 he fails to carry his burden of demonstrating
the requisite prejudice. This is because the evidence does not suggest a
reasonable doubt as to quantity. Instead, as previously discussed, the evidence
strongly shows Mr. Reed participated in five “cooks” manufacturing at least one
pound of “pure” methamphetamine at each. The result is a total of 2.268
kilograms or 2,268 grams of “pure” methamphetamine. This is obviously more
than 100 grams of “pure” methamphetamine, as alleged in the indictment and
charged under § 841(b)(1)(A)(viii). Given the overwhelming evidence in this
case as to quantity, Mr. Reed has not shown that any perceived error, in not
submitting the drug quantity issue to a jury for determination, prejudiced him
21
Because it is unnecessary to the disposition of this case, we do not decide
whether the Apprendi decision requires a jury determination in a case, like here, where
the defendant pled guilty with full knowledge of all the elements of the crime charged.
While we acknowledge this case is similar to Apprendi because both defendants pled
guilty to the charges against him, this case is different because the indictment at issue
here clearly set forth all of the elements of the offense charged. See 120 S. Ct. at 2352.
Thus, when Mr. Reed pled guilty in this case, he expressly waived his right to trial
knowing the drug quantity charged, and clearly consented to a determination of drug
quantity at an evidentiary hearing. Consequently, it appears Mr. Reed made a voluntary
and informed decision to let the trial court be the trier of fact, rather than a jury, in
determining the contested drug quantity.
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under our plain error analysis. Moreover, Mr. Reed faced a maximum sentence of
life in prison under § 841(b)(1)(A), as charged in the indictment. However, the
district court sentenced him to a lesser sentence of fourteen years imprisonment.
Mr. Reed has not shown how failure to submit the drug quantity issue to a jury
would have resulted in a lesser sentence. Meshack, 225 F.3d at 577. The same is
true with respect to Mr. Reed’s sentence of five years supervised release. This is
because § 841(A) requires a term of supervised release of at least five years and
§ 841(C) requires a term of supervised release of at least three years. See 21
U.S.C. §§ 841(A), 841(C). The maximum term of supervised release under either
is life. See United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.)
(holding the minimum term of supervised release the defendant faced under § 841
(C) was life), cert. denied, 121 S. Ct. 600 (2000). Mr. Reed has not shown how
submitting the drug quantity issue would have resulted in fewer years of
supervised release. 22 Thus, Mr. Reed has shown no prejudice resulting from the
22
In this case the government first “conceded” the district court erred under
Apprendi in sentencing Mr. Reed to five years supervised release because this term “is
greater than the lowest statutory maximum sentence.” Apparently, the government was
relying on 18 U.S.C. § 3583(b), which provides for a maximum term of supervised
release of three years. The government then suggested no plain error was committed
because the evidence showed the drug quantity was sufficient for conviction under §
841(A) which allows for five years supervised release. In filing its supplemental
authorities, the government retracts its concession, recognizing this Court has held §
3583(b)(2) does not limit § 841(C). See Heckard, ___ F.3d at ___, 2001 WL 15532, at
*12; United States v. Orozco-Rodriguez, 60 F.3d 705, 707-08 (10th Cir. 1995).
Accordingly, the government now asserts Mr. Reed does not present a colorable Apprendi
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district court, and not a jury, determining the drug quantity. 23
Finally, Mr. Reed presents no colorable Apprendi claim concerning his
firearm sentencing enhancement. Apprendi is not implicated because the firearm
enhancement did not expose him to a greater punishment than authorized by
statute. See United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir.
2000). Specifically, Mr. Reed’s 168-month (or fourteen-year) term of
imprisonment imposed by the district court is less than the maximum sentence of
life under § 841(b)(1)(A), as alleged in the indictment. It is also less than the
maximum sentence of twenty years under the less stringent penalty statute,
claim. We agree.
23
Because the indictment charged Mr. Reed under 21 U.S.C. § 841(b)(1)(A), we
have conducted a plain error analysis under that statute. However, we note the district
court actually sentenced Mr. Reed under the less onerous penalty statute, § 841(b)(1)(C),
which does not require a quantity determination. Even if we applied § 841(b)(1)(C) in
our analysis, Mr. Reed presents no colorable Apprendi claim. This is because a sentence
is valid, even if the drug quantity is not charged in the indictment nor proven to a jury, so
long as it does not exceed the statutory maximum sentence allowed under § 841(b)(1)(C)
for Schedule I and II drugs. See United States v. Keith, 230 F.3d 784 (5th Cir. 2000),
petition for cert. filed, (U.S. Jan. 16, 2001) (No. 00-8077); United States v. Doggett, 230
F.3d 160, 165 (5th Cir. 2000), petition for cert. filed, (U.S. Jan. 4, 2001) (No. 00-7819);
Aguayo-Delgado, 220 F.3d at 934. We note methamphetamine is considered a Schedule
II drug for the purpose of applying § 841(b)(1)(C), see United States v. Killion, 7 F.3d
927, 935 (10th Cir. 1993), cert. denied, 510 U.S. 1133 (1994), and the maximum sentence
for an undetermined quantity of methamphetamine is twenty years imprisonment. See §
841(b)(1)(C). Thus, if we consider Mr. Reed’s sentence under § 841(b)(1)(C), as applied
by the district court, his fourteen-year sentence is less than the twenty-year maximum
sentence under § 841(b)(1)(C), and therefore, not invalid under Apprendi.
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§ 841(b)(1)(C), used for an undetermined quantity of methamphetamine and
applied by the district court in sentencing Mr. Reed. For these reasons, no
Apprendi claim is implicated in Mr. Reed’s case.
III. CONCLUSION
For the reasons set forth above, we reject Mr. Reed’s challenge to the
reliability of the evidence supporting the district court’s drug quantity
determination, application of the firearm enhancement, and his contention his
sentence is unconstitutional under Apprendi. Accordingly, we AFFIRM his
conviction and sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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