United States v. Ashlock

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2004
Charles R. Fulbruge III
Clerk
No. 03-10615
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WALTER BRYAN ASHLOCK
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
No. 3:02-CR-243-ALL-G
Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit
Judges.
PER CURIAM:*
Defendant-Appellant Walter Bryan Ashlock appeals from the
district court’s judgment of conviction and sentence. For the
following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 20, 2001, Ashlock was stopped for a traffic
violation and was unable to present a driver’s license. A
computer check revealed that he had provided a false identity to
the police officer, and the officer conducted a pat-down search
*
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that this opinion should not be published and is not precedent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.
of Ashlock, revealing a knife, drug paraphernalia, and fourteen
grams of a powdery substance later identified as methamphetamine.
Ashlock was arrested. An inventory search of the car uncovered
more drug paraphernalia and at least two driver’s licenses that
were not issued under Ashlock’s name.
After Ashlock expressed interest in helping the police
arrest methamphetamine manufacturers, the officers contacted a
member of the Northeast Area Drug Interdiction Task Force
(NADITF). Ashlock signed a confidential informant agreement with
the task force official, listing his address as 406 Carl C.
Senter Street, and he was released pending laboratory testing of
the powdery substance. Ashlock only remained in contact with the
task force (as required by the informant agreement) for three
days, and he never fulfilled his promise to assist task force
officers in arresting local methamphetamine manufacturers. He
was therefore considered terminated from the confidential
informant program in January 2002. When the police laboratory
subsequently reported that the powder Ashlock had been carrying
contained methamphetamine, a warrant was issued for his arrest.
On January 10, 2002, Ashlock was stopped for a second
traffic violation and a computer check revealed the outstanding
arrest warrant. During the arrest, police officers discovered
syringes and digital scales on his person as well as fifty-four
grams of methamphetamine in plastic baggies, additional syringes,
and various other items in the car he was driving.
2
From January until mid-April 2002, the police conducted
periodic surveillance of the 406 Carl C. Senter address without
observing Ashlock. On April 12, 2002, however, a repairman
informed the police that Ashlock had threatened him while he was
working at the Senter Street residence. The police secured a
search warrant for Ashlock and discovered him in the back yard,
carrying twenty-four grams of methamphetamine. A subsequent
search of the house, pursuant to a second warrant, uncovered
multiple items associated with manufacturing methamphetamine.
The police then sought assistance from Drug Enforcement
Administration agents, who questioned Ashlock at the police
station. Ashlock informed the agents that he was planning to
manufacture methamphetamine later that night and was willing to
cooperate with the DEA in bringing in his manufacturing
associates. The agents declined his offer of cooperation.
On August 2, 2002, the police arrested a woman, Debra Jean
Cronin, who informed the police that Ashlock was currently
residing at 1112 Desdemona Street in Dallas and that she had
purchased small quantities of methamphetamine from Ashlock on two
or three occasions. In addition, she admitted selling Ashlock
thousands of stolen pseudoephedrine cold pills, presumably for
use in manufacturing methamphetamine, at least two or three
times. Armed with this information, the police obtained a search
warrant for the Desdemona residence. Upon their arrival at the
house, an unidentified man drove away in a black pickup truck,
3
which the police were unable to pursue after it ran through a
stop light.
Later that night, Ashlock was arrested at a local hotel. He
claimed that his name was Jerry Stone. He had two syringes, 0.8
grams of methamphetamine, and the keys to the previously
identified black pickup truck in his possession. The police
found the truck parked in the hotel garage. When officers
searched Ashlock’s Desdemona residence the next day, they
discovered two firearms: a shotgun by the back door and a pistol
under the mattress of the bed. The search also uncovered 111.9
grams of liquid methamphetamine, 0.87 grams of a powdery mixture
containing methamphetamine, and other items associated with
manufacturing and distributing methamphetamine. In addition, the
officers found equipment for producing false identifications and
a driver’s license bearing Ashlock’s picture under the name
“Jerry Dale Stone.”
After a jury trial, Ashlock was convicted of (1) conspiring
to manufacture with the intent to distribute in excess of 500
grams of methamphetamine between September 2001 and August 3,
2002, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; (2) possessing
pseudoephedrine with the intent to manufacture and distribute
methamphetamine on April 12, 2002, see id. § 841(c)(1); (3)
possessing firearms as a convicted felon on August 3, 2002, see
18 U.S.C. §§ 922(g)(1), 924(a)(2); (4) possessing more than fifty
grams of a mixture containing methamphetamine with the intent to
4
distribute it on August 3, 2002, see 21 U.S.C. § 841(a)(1),
(b)(1)(B); and (5) possessing more than fifty grams of a mixture
containing methamphetamine with the intent to distribute it on
January 10, 2002, see id. On appeal, Ashlock raises numerous
challenges to the district court’s evidentiary rulings, denial of
his motion for judgments of acquittal, jury instructions, and
application of the sentencing guidelines. We address each issue
in turn.
II. DISCUSSION
A. Evidentiary Rulings
Ashlock first contends that the district court erred in
admitting testimony from the government’s three forensic experts
regarding the chemical identity of the numerous substances seized
from his person and residences. He claims that the testimony
should have been excluded because the government’s discovery
disclosures were untimely and failed to comply with FED. R. CRIM.
P. 16(a). Before trial, Ashlock moved either to strike the
experts’ testimony or for a 90-day continuance because, while the
district court’s pre-trial scheduling order instructed the
government to fulfill its Rule 16(a) discovery obligations by
October 4, Ashlock did not receive the government’s first expert
witness disclosures until October 30. The district court granted
the continuance and denied the motion to strike. Yet, Ashlock
notes, the government’s October 30 disclosure was incomplete––it
5
revealed each expert’s qualifications but only included a copy of
one of the three experts’ reports––and the government did not
provide supplemental information until January 4, one week before
trial. This supplemental disclosure contained the other two
experts’ reports, which listed their opinions on the substances
they tested and included copies of their actual test results, as
well as hundreds of pages of test results from the first expert
witness. Based on this sequence of events, Ashlock claims on
appeal that the district court erred in denying his subsequent
motion to strike the experts’ testimony both because the
supplemental disclosure did not provide detailed protocols of the
tests employed by the forensic experts and because, even if the
disclosures were sufficiently detailed, he was prejudiced by
receiving the required information less than a week before trial.
We review a district court’s evidentiary rulings, including
its “remedies for alleged discovery violations,” for an abuse of
discretion. United States v. Smith, 354 F.3d 390, 397 (5th Cir.
2003). In addition, “our cases consistently have required a
showing of prejudice to the substantial rights of the defendant
before reversing because of an error in administering the
discovery rules.” United States v. Garcia, 917 F.2d 1370, 1374
(5th Cir. 1990) (citation and quotation marks omitted). Under
Rule 16(a)(1)(F)-(G), the government “must permit a defendant to
inspect and to copy or photograph the results or reports of
. . . any scientific test or experiment” that the government
6
“intends to use . . . in its case-in-chief at trial” and it must
provide a summary of each expert’s testimony, which “must
describe the witness’s opinions, the bases and reasons for those
opinions, and the witness’s qualifications.” Rule 16(a) does not
instruct the government to provide detailed step-by-step
information regarding the routine protocols employed by the
expert in performing the tests discussed in the report, however.
Therefore, we hold that the district court did not abuse its
discretion in concluding that the government’s disclosures
satisfied Rule 16(a). See United States v. Price, 75 F.3d 1440,
1444-45 (10th Cir. 1996) (discussing Rule 16(a)(1)(D), which
became Rule 16(a)(1)(F) under the 2000 amendments to the Criminal
Rules); United States v. Iglesias, 881 F.2d 1519, 1522-23 (9th
Cir. 1989); cf. United States v. Berry, 670 F.2d 583, 605-06 (5th
Cir. Unit B 1982) (refusing to require disclosure of the
government’s “Analytic Manual” for testing chemical substances).
Moreover, even if we were to conclude that the district
court abused its discretion in allowing the government to delay
fulfilling its obligations under Rule 16(a) until a week before
trial, Ashlock has not demonstrated that he was prejudiced by the
timing of the disclosures. See, e.g., United States v. Mendoza,
244 F.3d 1037, 1047 (9th Cir. 2001) (“The prejudice that must be
shown to justify reversal” in these circumstances “is a
likelihood that the verdict would have been different had the
government complied with the discovery rules, not had the
7
evidence [been] suppressed.” (emphasis added) (citation and
quotation marks omitted)). Importantly, Ashlock’s claim that his
receipt of this material within a week of trial was debilitating
to his defense is belied both by his failure to request a
continuance, see, e.g., United States v. Ivy, 83 F.3d 1266, 1281
(10th Cir. 1996), and by his attorney’s ability to conduct a
detailed cross-examination of each of the government’s experts at
trial, see United States v. Koopmans, 757 F.2d 901, 906 (7th Cir.
1985). Additionally, although the district court had granted
Ashlock’s pre-trial request for funds to hire a witness with
expertise in chemical analysis, Ashlock did not call an expert
witness at trial to cast doubt either on the government experts’
testing procedures or on their identification of the seized
substances. See Price, 75 F.3d at 1446 (finding it “implausible
that [the defendant] suffered prejudice” from a Rule 16(a)
violation since “[h]e was free to develop his own expert
testimony” but chose not to do so). Thus, we decline to reverse
Ashlock’s conviction on this basis.
In the alternative, Ashlock argues that the government’s
expert-witness testimony was unreliable and should have been
excluded under FED. R. EVID. 702. Rule 702 “imposes a special
obligation on a trial judge to ‘ensure that any and all
scientific testimony . . . is not only relevant, but reliable.’”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)).
8
We have explained that the district court enjoys wide latitude in
assessing the reliability of an expert’s testimony and may
consider a number of factors, including “whether a theory or
technique can be or has been tested, has been subjected to peer
review, has received general acceptance, and the technique’s
known or potential error rate.” United States v. Norris, 217
F.3d 262, 269 (5th Cir. 2000).
Ashlock’s main critique of the government’s forensic
testimony centers on the experts’ failure to disclose the
protocols they followed in testing the substances they identified
as contraband, rendering it impossible for anyone other than a
chemist to examine the test results independently and reach a
conclusion regarding the identity of the substances tested.
Nothing in Rule 702 requires an expert to provide this level of
detail, however. Instead, Rule 702 simply dictates that the
party presenting the expert testimony must show by a
preponderance of the evidence that the testimony is reliable.
See United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003).
At trial, the government met this burden by eliciting testimony
revealing that: (1) each expert held a bachelor’s degree in
chemistry and had extensive on-the-job training in forensic
chemistry; (2) each of the tests performed by the experts was
generally accepted in the field of forensic chemistry; (3) each
of the tests was performed in accordance with the standard
procedures used in the laboratory; and (4) each expert had his or
9
her results reviewed by another chemist in the laboratory or by a
laboratory administrator. Based on this evidence, we hold that
the district court did not abuse its discretion in admitting the
government’s expert-witness testimony under Rule 702.2
In his second claim of error, Ashlock argues that the
district court should have stricken the testimony of Tommy
Browning, a lay witness, regarding methods of manufacturing
methamphetamine. Ashlock does not deny that Browning had
2
Ashlock’s arguments regarding individual aspects of the
experts’ testimony also lack merit. He claims, for example, that
some of the experiments performed on the seized substances were
merely preliminary in nature and therefore inherently unreliable.
Yet, as the forensic experts explained at trial, the generally
accepted practice announced by the American Society of Crime
Laboratories involves a series of two tests to identify
narcotics: a preliminary and a confirmatory test. Because the
experts testified that confirmatory tests were used to verify the
results of each preliminary test, we agree with the district
court that these experiments met the standard of Rule 702.
Moreover, we reject Ashlock’s contention that one expert’s
testimony regarding the theoretical yield of methamphetamine that
could have been produced from the pseudoephedrine tablets seized
at one of his residences should have been stricken because the
calculation did not reveal the actual amount of methamphetamine
Ashlock himself would have produced. This evidence was only
relevant to the drug quantity alleged in count 1 of the
indictment: conspiracy to manufacture more than 500 grams of
methamphetamine. Yet the record contained ample evidence, aside
from the theoretical-yield testimony, from which the jury could
infer that Ashlock was involved in a conspiracy to manufacture
more than 500 grams of methamphetamine. For example, one witness
testified that he had seen Ashlock “cook” methamphetamine, had
sold Ashlock thousands of pseudoephedrine pills, and had
purchased more than ten pounds of methamphetamine from Ashlock
during the time period alleged in the indictment. Therefore,
regardless of whether the expert’s theoretical-yield testimony
met the standard in Rule 702, we need not reverse Ashlock’s
conviction because the error (if any) was harmless. See Norris,
217 F.3d at 278 (applying harmless error); cf. United States v.
Cavely, 318 F.3d 987, 998 n.3 (10th Cir. 2003).
10
personal knowledge of these matters but instead claims that
Browning’s testimony involved specialized knowledge outside the
province of the jury and, thus, the government should have been
required to designate Browning as an expert witness and to
fulfill the disclosure requirements in FED. R. CRIM. P. 16(a). In
support, he observes that the Advisory Committee to the 2000
Amendments to Federal Rules of Evidence expressly observed that a
lay witness might properly testify “that a substance appeared to
be a narcotic, so long as a foundation of familiarity with the
substance is established,” but “[i]f . . . that witness were to
describe how a narcotic was manufactured, or to describe the
intricate workings of a narcotic distribution network, then the
witness would have to qualify as an expert under Rule 702.” FED.
R. EVID. 701 advisory committee’s note (citing United States v.
Figueroa-Lopez, 125 F.3d 1241 (9th Cir. 1997)).
This court reviews a district court’s decision whether a
witness must be designated as an expert for an abuse of
discretion. United States v. Griffin, 324 F.3d 330, 347 (5th
Cir. 2003). Under the Advisory Committee’s interpretation of
Rule 701, the court should not have admitted Browning’s testimony
regarding methods of methamphetamine manufacturing without first
qualifying him as an expert witness. We need not decide whether
to adopt the Advisory Committee’s position, however, because we
conclude the district court’s error, if any, was harmless. See
United States v. Griffith, 118 F.3d 318, 323 (5th Cir. 1997).
11
The potentially objectionable portions of Browning’s
testimony––e.g., his discussion of the relative benefits of the
red phosphorus manufacturing method––were cumulative of testimony
proffered by the government’s properly designated expert witness,
DEA Agent Rick Smith. See Griffin, 324 F.3d at 348 (“Where
objected to testimony is cumulative of other testimony that has
not been objected to, the error that occurred is harmless.”).
Ashlock attempts to circumvent a finding of harmless error
by arguing that only Browning, and not Agent Smith, offered
evidence personally linking Ashlock to methamphetamine
manufacturing. But, Browning’s testimony that he had sold
Ashlock thousands of pseudoephedrine pills and that he witnessed
Ashlock “cooking” methamphetamine was well within the bounds of
permissible lay witness testimony, even under the Advisory
Committee’s interpretation of Rule 701. See FED. R. EVID. 701
advisory committee’s note (“[Only the parts] of a witness’
testimony that [are] based upon scientific, technical, or other
specialized knowledge . . . [are] governed by the standards of
Rule 702 and the corresponding disclosure requirements [of FED.
R. CRIM. P. 16].”).
Ashlock’s remaining arguments about the district court’s
evidentiary rulings involve the admission, over Ashlock’s
objections, of several items of (what he categorizes as) hearsay
or irrelevant evidence. For example, he claims that the district
court should have excluded (1) two maps used by law enforcement
12
witnesses to describe the events surrounding Ashlock’s commission
of two traffic violations and (2) various false identification
papers and other documents seized from the Desdemona residence
and from a nearby car. Ashlock argues, in a conclusory fashion,
that he was prejudiced by the admission of these items. But, he
makes no attempt to demonstrate how, “in light of all of the
evidence,” the objected-to items “actually contributed to the
jury’s verdict.” United States v. Cantu, 167 F.3d 198, 206 (5th
Cir. 1999). We are unable to comprehend how these maps and
assorted documents could have tainted the jury’s verdict on the
charges at issue in the case, especially considering the
voluminous evidence adduced at trial regarding Ashlock’s drug
possession and methamphetamine-manufacturing activities.
Accordingly, the district court’s error in admitting these items,
if any, was harmless.
B. Judgment of Acquittal
Ashlock also argues that there was insufficient evidence to
sustain the charges in counts 1 and 3 of the indictment and that
the district court erred in not granting his motion for judgments
of acquittal. We review the district court’s denial of a
judgment of acquittal de novo. United States v. Medina, 161 F.3d
867, 872 (5th Cir. 1998). “In doing so, we consider the
evidence, all reasonable inferences drawn from it and all
credibility determinations in the light most favorable to the
13
Government, and affirm if a reasonable jury could find the
offense’s essential elements beyond a reasonable doubt.” Id.
To establish Ashlock’s guilt on count 1––conspiracy to
manufacture more than 500 grams of methamphetamine––the
government was required to prove beyond a reasonable doubt that
an agreement existed between two or more persons to manufacture
methamphetamine and that Ashlock both knew of and voluntarily
participated in the conspiracy. See id.; United States v.
Gibson, 55 F.3d 173, 181 (5th Cir. 1995). Ashlock does not argue
that there was insufficient evidence for a jury to find that a
conspiracy to manufacture methamphetamine existed or that he knew
about this conspiracy. Rather, he claims that the government
failed to prove that he voluntarily participated in the
conspiracy. We disagree. At trial, the government adduced
evidence: that Ashlock resided at the Carl C. Senter and
Desdemona residences; that drug manufacturing paraphernalia was
seized from each residence; that Ashlock informed DEA Agents in
April 2002 that he planned to manufacture methamphetamine; and
that at least one eyewitness had personally seen Ashlock
manufacture methamphetamine on more than one occasion. Viewed in
the light most favorable to the government, this evidence was
sufficient to prove beyond a reasonable doubt that Ashlock
voluntarily participated in a conspiracy to manufacture
methamphetamine.
Nevertheless, Ashlock argues that the government’s evidence
14
does not specifically demonstrate that he participated in the
drug conspiracy between September 2001 and August 3, 2002––the
time period alleged in the indictment. However, the evidence we
have outlined above places Ashlock’s participation in the
manufacturing conspiracy within the relevant time frame.
Moreover, to the extent that the government’s evidence might be
construed to include events occurring more than a year before the
earliest date charged in the indictment, as Ashlock claims, this
flaw is not fatal to the government’s case. As we explained in
United States v. Lokey, 945 F.2d 825 (5th Cir. 1991):
[A]n allegation as to the time of the offense is not an
essential element of the offense charged in the
indictment and, within reasonable limits, proof of any
date before the return of the indictment and within the
statute of limitations is sufficient. . . . When
conspiracy is charged, an indictment satisfies the
requirements of the statute of limitations if the
government alleges and proves, at trial or pretrial, that
the conspiracy continued into the limitations period.
Id. at 832 (alteration in original) (citation and internal
quotation marks omitted). Therefore, because there was evidence
that the conspiracy continued through the time stated in the
indictment, the district court did not err in denying his motion
for acquittal on count 1.
To convict Ashlock on count 3––being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1)––the
government was required to prove beyond a reasonable doubt that
(1) Ashlock was a convicted felon, (2) who possessed a firearm,
and (3) the firearm was in or affected interstate commerce. See
15
United States v. Fields, 72 F.3d 1200, 1211 (5th Cir. 1996).
Ashlock admits that he was a convicted felon but avers that the
government adduced insufficient evidence to prove the second and
third elements of this crime. After reviewing the record, we
find both arguments legally untenable.
To satisfy the second element, the government presented two
witnesses who testified that Ashlock lived in the Desdemona
residence where the firearms were discovered. One witness also
testified that he had seen Ashlock with a shotgun and a pistol in
his home. This evidence was sufficient to demonstrate, at a
minimum, Ashlock’s constructive possession of the firearms. See
United States v. Smith, 930 F.2d 1081, 1085 (5th Cir. 1991)
(requiring proof of “ownership, dominion, or control over the
[firearm] itself, or dominion or control over the premises in
which the [firearm] [was] concealed” (internal quotation marks
omitted)). Moreover, although Ashlock implies that he was not
the sole inhabitant of the house where the guns were seized, the
government’s evidence that the shotgun was found in plain view by
the back door of the house is legally sufficient to sustain the
charge under § 922(g)(1). See Fields, 72 F.3d at 1212 (holding,
in a case where the defendant jointly occupied a home, that “the
fact that the shotgun was found in plain view, leaning against a
wall, is sufficient to establish” constructive possession).
Similarly, the government produced sufficient evidence from
which a reasonable jury could conclude, beyond a reasonable
16
doubt, that the firearms possessed by Ashlock affected interstate
commerce. Under this circuit’s precedents, the government may
establish the interstate commerce element of § 922(g)(1) through
testimony “that the firearms were manufactured outside of Texas
and traveled in interstate commerce to reach Texas.” Fields, 72
F.3d at 1211. At trial, a government expert testified that the
Ithaca shotgun could only have been manufactured in New York and
the Jennings pistol could only have been manufactured in
California; thus, both firearms must necessarily have crossed
state lines to arrive at the Desdemona Street residence in Texas.
Accordingly, the district court did not err in denying Ashlock’s
motion for judgment of acquittal on count 3.
C. Public Authority Jury Instruction
Ashlock argues that the district court erred in denying his
request for a public authority jury instruction. We review the
district court’s refusal to provide a jury instruction for an
abuse of discretion. See United States v. Treviño-Martinez, 86
F.3d 65, 67 (5th Cir. 1996). “A conviction cannot be overturned
for failure to instruct the jury on a defense unless the
requested but omitted instruction has an evidentiary basis in the
record which would lead to acquittal.” United States v. Spires,
79 F.3d 464, 466 (5th Cir. 1996).
The “‘public authority’ defense . . . requires a defendant
to show that he was engaged by a government official to
17
participate in covert activity.” United States v. Fox, 248 F.3d
394, 408 (5th Cir. 2001) (citing Spires, 79 F.3d at 466 n.2),
vacated on other grounds, 535 U.S. 1014 (2002). Ashlock believes
that he satisfied this burden and points to his agreement with
the local drug task force, which he signed on December 2001, as
evidence of his authority to carry firearms, illegally possess
pseudoephedrine, and manufacture methamphetamine. But the
confidential agreement, which was introduced by the government at
trial, included the following statements (all of which were
initialed by Ashlock):
I . . . understand that I am not to carry a firearm
or weapon of any type while working with the NADITF.
. . .
I further understand that I may not engage in any
illegal or improper conduct so long as I am working with
the NADITF.
. . .
Further, I understand that any violations arising
from my action in violation of the aforementioned
circumstances will result in an investigation of the
matter. If the charges are substantiated, appropriate
action, to include the possibility of criminal
prosecution, will be taken.
As these provisions make clear, Ashlock could not have reasonably
believed, based on this agreement, that he was authorized to
engage in the criminal activities for which he was charged. Cf.
Spires, 79 F.3d at 466 n.2 (explaining, in dicta, that a
defendant who was charged with illegally possessing a firearm
“prudently d[id] not raise a . . . defense of acting under public
authority” since his confidential informant agreement contained
the condition that he “not carry a firearm”). Because Ashlock
18
does not identify any other evidence that might support an
inference that he was authorized to engage in criminal activities
as a task-force confidential informant, we conclude that the
district court did not abuse its discretion in denying Ashlock’s
request for a public authority jury instruction.
D. Application of the Sentencing Guidelines
Finally, Ashlock contends that the district court violated
his Fifth Amendment right to due process and his Sixth Amendment
right to a trial by jury when it enhanced his sentence under the
Federal Guidelines based on factors found by the judge based on a
preponderance of the evidence, not by the jury under a reasonable
doubt standard. In particular, he argues that the judge should
not have enhanced his sentence (1) by two levels for recklessly
fleeing from the police on August 3, 2002, in a black pickup
truck, see U.S.S.G. § 3C1.2; (2) by three levels for creating a
substantial risk of harm to human life and the environment
through his methamphetamine manufacturing, see id.
§ 2D1.1(b)(5)(B); and (3) by two levels for obstructing justice
by asking a witness not to cooperate fully with the government,
see id. § 3C1.1.
The government contends that we must apply a plain error
standard of review because Ashlock did not object, on these
grounds, during the sentencing proceedings. We disagree. Before
trial, Ashlock filed an “Advance Notice of Difficult Questions”
19
in which he argued that the government should not be permitted to
seek enhancement of his sentence based on any fact not “properly
pleaded in the superseded [sic] indictment.” He argued, under
Apprendi v. New Jersey, 530 U.S. 466 (2000), that any fact used
to increase his sentence had to be submitted to a jury and proved
beyond a reasonable doubt. Because the district court rejected
this argument without indicating a willingness to reconsider the
issue at sentencing, we conclude that Ashlock has properly
preserved this issue for appeal. See United States v. Hopkins,
433 F.2d 1041, 1044 (5th Cir. 1970); cf. Bender v. Brumley, 1
F.3d 271, 277 (5th Cir. 1993) (“We recognize that error is
preserved for appeal so long as the complaining party states his
assertion to the trial court prior to the time when the court
invites on-the-record objections to the charge.”).
Nevertheless, even under a harmless-error standard, we hold
that Ashlock’s argument is foreclosed by this court’s precedents.
As we recently explained in United States v. Pineiro, No. 03-
30437, 2004 WL 1543170 (5th Cir. July 12, 2004), “[j]udicial
findings under the Guidelines that set sentences within [the
range authorized by the United States Code] . . . do not offend
the Constitution.” Id. at *9. Therefore, because Ashlock’s
sentence under each count of the indictment did not exceed the
maximum penalty authorized by the United States Code, the
district court’s application of the Federal Guidelines to enhance
Ashlock’s sentence was not constitutionally infirm.
20
III. CONCLUSION
Accordingly, we AFFIRM district court’s judgment and
sentence.
21