United States v. Conner ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 1, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-5075
v. (N.D. Oklahoma)
ROBERT EUGENE CONNER, JR., (D.C. No. 03-CR -168-P)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, A ND ER SO N and BROR BY, Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause is
therefore ordered submitted without oral argument.
Defendant/appellant Robert Eugene Conner w as convicted for knowingly
maintaining a place for the purpose of manufacturing, distributing, or using a
*
This order and judgment is not binding precedent, except under the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.
controlled substance, in violation of 21 U.S.C. §§ 856(a)(1) and (b)(1). He was
initially sentenced to ninety-seven months’ imprisonment, followed by three years
of supervised release. On direct appeal, we affirmed his conviction but remanded
for resentencing in light of the Supreme Court’s intervening decision in United
States v. Booker, 543 U.S. 220 (2005). United States v. Conner, 152 Fed. Appx.
732, 2005 W L 2697256 (10th Cir. 2005). On resentencing, Conner was again
sentenced to ninety-seven months’ imprisonment, followed by three years of
supervised release. He appeals his sentence again, and we affirm.
BACKGROUND
The original presentence report (“PSR”) prepared by the United States
Probation Office in anticipation of Conner’s sentencing calculated Conner’s base
offense level under the United States Sentencing Commission, Guideline M anual
(“USSG ”) (2003), as follows: it attributed 44.5 grams of a mixture containing
methamphetamine and 8,640 milligrams of pseudoephedrine to Conner. Using the
Drug Quantity Table in USSG §2D1.1, the 44.5 grams of methamphetamine was
the equivalent of 89 kilograms of marijuana and the 8,640 milligrams of
pseudoephedrine was the equivalent of 86 kilograms of marijuana. The PSR
made it clear that, for purposes of calculating the quantity of pseudoephedrine
involved, it only included pills from full packets of pseudoephedrine packages,
not the empty packages that were found in Conner’s house. Based on a total of
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175 kilograms of marijuana equivalent, USSG §2D1.1(c)(7) provided a base
offense level of twenty-six. Two levels were added to Conner’s base offense
level pursuant to USSG §2D1.1(b)(1) for possession of firearms during the
comm ission of the offense. 1 Conner’s total adjusted offense level was
accordingly twenty-eight. W ith a criminal history category II, the Guideline
sentencing range was 87-108 months. As indicated, the court sentenced Conner
to ninety-seven months.
On appeal, we remanded for resentencing under Booker, after expressing
the following concern about one part of the district court’s drug quantity
calculation:
W e do pause, however, to note our particular concern with the
district court’s attribution of 8,640 milligrams of pseudoephedrine to
M r. Conner. Our review of the record reveals that evidence of this
quantity was not presented during the trial and the issue w as a
subject of heated dispute in the sentencing hearing. M oreover, the
evidence provided by the government at the sentencing hearing did
not clearly indicate whether the calculation of the quantity of
pseudoephedrine included the weight of the entire tablets or just the
pseudoephedrine contained in the tablets.
Conner, 152 Fed. Appx. at 739.
At the resentencing hearing, the government presented testimony from
Officer Brian Comfort, the case agent for the drug investigation of Conner, who
had testified as to drug quantities in the original sentencing hearing. He testified
1
Two firearms and some ammunition were found in Conner’s bedroom
when authorities searched his house.
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that his calculation of 8,640 milligrams of pseudoephedrine was based upon the
fact that the packaging on each full box or bottle of tablets stated that each tablet
contained thirty milligrams of pseudoephedrine. He then multiplied that number
(thirty) times the number of pills found in the full boxes or bottles, resulting in
the determination that the total amount of pure pseudoephedrine was 8,640
milligrams.
The district court then resentenced Conner to ninety-seven months’
imprisonment, after again attributing 8,640 milligrams of pseudoephedrine to
Conner:
Paragraph 19 of the presentence report indicates the defendant
was only held accountable for 8,640 milligrams; that is, 8.6 grams of
pseudoephedrine. This is comprised of the full bottles of
pseudoephdrine detailed in paragraph 11 of the presentence report
. . . . These bottles held a total of 288 pills, each pill containing 30
milligrams of pseudoephedrine. This adds up to 8,640 milligrams.
According to the testimony of Officer Comfort, only the
weight of the actual controlled substance was used in the calculations
as opposed to the . . . total weight of all the pills.
Tr. of R esentencing Hr’g at 23, R. Vol. III. Additionally, as required by Booker,
the court carefully considered the sentencing factors contained in 18 U.S.C.
§ 3553(a):
Pursuant to 18 U.S.C. § 3553(a), there are several factors that
warrant the specific sentence imposed in this case. The court finds a
significant term of imprisonment, . . . one within the applicable
guideline range, is appropriate and necessary to punish the defendant
and protect the public and serve as a deterrent to him and others who
may be inclined to commit similar offenses.
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W ithin the applicable guideline range, a sentence in the middle
of the range is imposed because the guidelines have considered all
the important sentencing factors surrounding this offense and the
defendant.
In this case, a significant term of imprisonment is warranted
based on several factors.
First, this offense clearly involved the manufacturing of
methamphetamine in the defendant’s residence, a factor that makes
this offense more aggravating than some other forms of drug
distribution offenses.
Second, in the defendant’s bedroom there was ammunition
[and] firearms, one of which was loaded when the offense occurred.
A sentence within the guidelines is appropriate to avoid
sentencing disparity between similarly situated defendants.
Finally, this defendant has never expressed any responsibility
or remorse for his involvement in this offense, a factor that would
possibly cause the court to consider some degree of reduction.
Given the nature of the offense, the maximum length of
supervised release [is] appropriate to monitor the defendant’s
conduct.
Id. at 35-36, R. Vol. III. This appeal followed. Conner argues that the evidence
presented at his resentencing was insufficient to establish the quantity of
pseudoephedrine contained in the tablets and that Officer Comfort was not
qualified to testify concerning that quantity.
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D ISC USSIO N
“Factual findings regarding drug quantities are reviewed for clear error and
are reversed only if the district court’s finding was without factual support in the
record or we are left with the definite and firm conviction that a mistake has been
made.” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005). Further,
“so long as the district court applies the Guidelines in an advisory, rather than a
mandatory, fashion, it may rely on facts found by a judge to be true based on a
preponderance of the evidence.” United States v. Bustamonte, 454 F.3d 1200,
1202 (10th Cir. 2006). W hen drug quantities are calculated for purposes of
determining a defendant’s base offense level under the guidelines, the evidence
must have a “minimum indicia of reliability.” United States v. Ryan, 236 F.3d
1268, 1273 (10th Cir. 2001).
W e hold that the district court’s calculation of drug quantity was not clearly
erroneous. The evidence supporting that quantity has sufficient indicia of
reliability. Officer Comfort, a six-year veteran of methamphetamine
investigations, testified about the manufacturer’s representation as to how much
of the chemical pseudoephedrine was contained in each tablet. W hile Conner
suggests that Comfort was not a chemist and had no qualifications to testify as to
chemical quantities, we conclude that he did not need such qualifications to
testify as to what the manufacturer represented was in each tablet. Further, the
government did not purport to offer Comfort’s testimony as that of an expert in
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chemistry. He testified as an experienced drug enforcement officer, who could
recount what was written on the outside of bottles or boxes of pills.
In short, the calculation of the quantity of pseudoephedrine attributable to
Conner w as supported by a preponderance of evidence bearing sufficient indicia
of reliability.
C ON CLU SIO N
For the foregoing reasons, we AFFIRM the sentence imposed in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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