F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 1, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-7043
LOUIE ANTHONY DALTON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 03-CR-100-WH)
Submitted on the briefs: *
Paul D. Brunton, Federal Public Defender, Michael A. Abel, Assistant Federal
Public Defender, Barry L. Derryberry, Research and Writing Specialist, Office of
the Federal Public Defender, Northern and Eastern Districts of Oklahoma, Tulsa,
Oklahoma, for Defendant - Appellant.
Sheldon J. Sperling, United States Attorney, Ryan M. Roberts, Assistant United
States Attorney, Muskogee, Oklahoma, for Plaintiff - Appellee.
Before TACHA, Chief Circuit Judge, ANDERSON, and BALDOCK, Circuit
Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
ANDERSON, Circuit Judge.
Louie Anthony Dalton (“Dalton”) pleaded guilty to a one-count indictment
charging him with conspiracy to distribute at least 50 grams of methamphetamine,
in violation of 21 U.S.C. §§ 841 and 846. He appeals his 150-month sentence,
arguing (1) that the district court clearly erred in estimating the drug quantity it
relied on for sentencing, and (2) the sentence violated Blakely v. Washington, 124
S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005), 1 because
it was based on a judicial finding of drug quantity. We AFFIRM.
BACKGROUND
On October 6, 2003, police in Sallinsaw, Oklahoma, received a tip that
Dalton had purchased from Wal-Mart a large quantity of items that are used in
methamphetamine manufacturing. Police stopped Dalton and Talina Richmond
(“Richmond”) as they were leaving the store and found in their truck
incriminating items, including twelve cans of starting fluid, several blister packs
of pseudoephedrine, stained coffee filters, a set of digital scales, and numerous
1
When the defendant raised Blakely before this court, the Supreme Court
had not yet issued Booker. We nonetheless apply both cases.
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syringes. Methamphetamine was also found in the vehicle and on Richmond’s
person. The officers subsequently executed a search warrant on the trailer home
Dalton and Richmond shared and found items indicative of a methamphetamine
laboratory, such as a propane bottle with blue corrosion, cans of solvent, a bottle
of HEET, and a propane camp stove. About forty yards from the home, in a
wooded area, officers discovered a camouflaged trunk containing numerous cans
of starting fluid, glassware, coffee filters, funnels, plastic tubing, bottles of
HEET, and wooden spoons. Officers also found a ledger wherein Dalton had
recorded nearly $10,000 in drug debts owed to him. The total amount of
methamphetamine recovered from the truck and the trailer was 51.33 grams.
Dalton was arrested and charged with one count of conspiracy to distribute
50 or more grams of methamphetamine. He pleaded guilty without the benefit of
a plea agreement. The presentence report (“PSR”) recommended that Dalton be
held responsible for manufacturing 700 grams of methamphetamine over the
course of four months. 2 This quantity was based on Richmond’s initial report to
2
Although the indictment charged Dalton with conspiracy to deliver only 50
or more grams of methamphetamine, the district court took into account all
quantities of drugs involved as relevant conduct under United States Sentencing
Commission, Guidelines Manual (“USSG” or “Guidelines”) §1B1.3. The court
also determined that USSG §2D1.1, comment. (n.12), applied. That note states
that “[w]here there is no drug seizure or the amount seized does not reflect the
scale of the offense, the court shall approximate the quantity of the controlled
substance. In making this determination, the court may consider, for example, the
(continued...)
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officers that she had lived with Dalton for four months, during which time they
produced about an ounce of methamphetamine two to three times per week.
Dalton objected to the PSR’s conclusions about the amount of methamphetamine
manufactured. The government subsequently called Richmond to testify on its
behalf at the sentencing hearing.
Richmond’s testimony at the hearing, however, varied from what she had
previously told investigators. On cross-examination, she testified that she began
living with Dalton after her second arrest for drug activity, which she admitted
was around the middle of August 2003. That living arrangement continued until
the Wal-Mart arrest on October 6, 2003. The defense noted at the hearing that if
those dates were correct, the period of cohabitation was only about a month and a
half. Richmond insisted that she was there longer than that but could not
remember any dates.
Richmond next testified that she and Dalton cooked the methamphetamine
in the woods by their home. She stated that no manufacturing occurred during the
first fourteen days she lived with Dalton. But she could not remember the first
few times that methamphetamine was cooked, could not give a number of times
2
(...continued)
price generally obtained for the controlled substance, financial or other records,
similar transactions in controlled substances by the defendant, and the size and
capability of any laboratory involved.”
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methamphetamine was cooked, and stated that sometimes she would sleep while
Dalton performed the process. When asked whether in previous interviews with
investigators she had guessed about the quantity of methamphetamine
manufactured per week, Richmond stated, “I don’t remember . . . on a lot of it. I
mean I’m not going to say for sure.” Tr. of Sentencing Hr’g at 30, R. Vol. III.
She also testified that she had used methamphetamine for ten years and had
ingested the drug daily during the past few years. She admitted that use of the
drug affected her memory of dates because of long periods of wakefulness
followed by long periods of sleep.
The district court stated on the record that Richmond’s testimony was not
proof beyond a reasonable doubt of the drug quantity in the PSR, but found that
the testimony bore minimum indicia of reliability. The judge noted that the case
was difficult and took a recess to perform his own calculations based on what he
had heard. The judge thereafter found by a preponderance of the evidence that
Richmond stayed with Dalton for two and a half months, and drug manufacturing
occurred during all but two weeks of that period. Based on Richmond’s
testimony, the drug ledger, the 408 tablets of pseudoephedrine seized from the
trailer home, and the other evidence of the methamphetamine laboratory, the
judge also found by a preponderance of the evidence that Dalton cooked
methamphetamine two times per week, with approximately .75 ounces
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manufactured per occasion, resulting in slightly over 350 grams of
methamphetamine mixture involved in this case. The finding of 350 grams
brought the base offense level to 30 under USSG §2D1.1(c). The court deducted
three points for Dalton’s acceptance of responsibility, which, with a criminal
history level of five, set the Guidelines range at 120 to 150 months in prison. The
court sentenced the defendant to 150 months’ imprisonment, the top of the range,
noting that the lengthy sentence was “to provide just punishment, to promote
respect for the law, and to protect the public.” Tr. of Sentencing Hr’g at 70, R.
Vol. III. Dalton timely filed this appeal.
DISCUSSION
I. Drug quantity determination
Dalton first challenges the district court’s determination under USSG
§2D1.1, comment. (n.12), that he was responsible for manufacturing at least 350
grams of methamphetamine. We review a district court’s legal interpretation of
the Guidelines de novo. United States v. Johnson, 42 F.3d 1312, 1320 (10th Cir.
1994). 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. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001) (further
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quotation omitted). “When the actual drugs underlying a drug quantity
determination are not seized, the trial court may rely upon an estimate to establish
the defendant’s guideline offense level ‘so long as the information relied upon has
some basis of support in the facts of the particular case and bears sufficient
indicia of reliability.’” United States v. Ruiz-Castro, 92 F.3d 1519, 1534 (10th
Cir. 1996) (quoting United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir.
1995)) (further quotation omitted). However, the “need to estimate drug
quantities at times is not a license to calculate drug quantities by guesswork.”
United States v. Richards, 27 F.3d 465, 469 (10th Cir. 1994) (further quotation
omitted).
After reviewing the transcript of the sentencing hearing in this case, we are
convinced that the district court’s drug-quantity estimation was not clearly
erroneous. Richmond’s testimony, although vague, was corroborated by
numerous other items of evidence, including ingredients in the methamphetamine
recipe—twelve cans of starting fluid and several blister packs of
pseudoephedrine—and items indicative of a manufacturing laboratory. Officers
also found a ledger in which at least $10,000 in drug debts were recorded and
learned of a letter Dalton wrote from prison in which he set forth the recipe for
manufacturing the drug and instructed his friends to use it to raise bail money.
All of these items are properly considered in the drug quantity calculation. See
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USSG §2D1.1, comment. (n.12). And, as noted above, the district court set forth
its calculations on the record after taking a recess to closely review Richmond’s
testimony, the PSR, and the other evidence. The court’s drug-quantity
determination had sufficient factual support.
II. Booker claim
Booker held that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756.
District courts post-Booker are required to consult the Guidelines in fashioning
sentences, but they are not required to sentence within the Guidelines range.
United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc).
Constitutional Booker error occurs when the district court “re[lies] on judge-
found facts . . . to enhance a defendant’s sentence mandatorily.” Id.
Booker therefore does not render judicial fact-finding by a preponderance
of the evidence per se unconstitutional. The remedial portion of Booker
demonstrates that such fact-finding is unconstitutional only when it operates to
increase a defendant’s sentence mandatorily. We recently noted that “in
sentencing criminal defendants for federal crimes, district courts are still required
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to consider Guideline ranges, which are determined through application of the
preponderance standard, just as they were before. The only difference is that the
court has latitude, subject to reasonableness review, to depart from the resulting
Guideline range.” United States v. Magallanez, No. 04-8021, __ F.3d__, 2005
WL 1155913, at *8 (10th Cir. May 17, 2005). See also United States v. Trujillo-
Terrazas, 405 F.3d 814, 818 (10th Cir. 2005) (“By rendering the Guidelines
discretionary, the Court saved the process of judicial factfinding from
unconstitutionality under the Sixth Amendment.”)
Dalton argues that the district court committed constitutional Booker error
by finding by a preponderance of the evidence that he conspired to deliver 350 or
more grams of methamphetamine. He contends that his sentence should be
reversed and the case remanded because without the district court’s drug-quantity
finding, which was based on testimony of an unreliable witness, he would only
have been responsible for the 50 grams charged in the indictment.
Because Dalton did not raise this issue below, we review for plain error.
Booker, 125 S. Ct. at 769 (“[W]e expect reviewing courts to apply ordinary
prudential doctrines, determining, for example, whether the issue was raised
below and whether it fails the ‘plain-error’ test.”); Gonzalez-Huerta, 403 F.3d at
732. “‘Plain error occurs when there is (1) error, (2) that is plain, which (3)
affects substantial rights, and which (4) seriously affects the fairness, integrity, or
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public reputation of judicial proceedings.’” Gonzalez-Huerta, 403 F.3d at 732
(quoting United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.), cert. denied,
125 S. Ct. 510 (2004)). When constitutional rights are at stake, plain-error review
is conducted less rigidly. United States v. Brown, 316 F.3d 1151, 1155 (10th Cir.
2003). Constitutional rights are clearly at issue in this case because Dalton’s
sentence was mandatorily enhanced based on judicial fact-finding.
Dalton has met the first two prongs of the plain-error test: there was error
in this case, because the district court was operating under Guidelines it thought
were mandatory, and that error was plain. See United States v. Dazey, 403 F.3d
1147, 1174-75 (10th Cir. 2005). However, because we conclude below that
Dalton cannot meet the fourth prong of plain-error review, we need not decide
whether his substantial rights were affected. See United States v. Cotton, 535
U.S. 625, 632-33 (2002); Gonzalez-Huerta, 403 F.3d at 736.
Under the fourth prong of plain-error review, the reviewing court may in its
discretion correct the error if the error “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,
732 (1993) (internal quotation marks omitted). The fourth-prong standard is
relaxed in cases of constitutional error, such as this case, but the defendant still
bears the burden of showing that we should exercise our discretion. Dazey, 403
F.3d at 1178.
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We recently outlined five factors that might show that a defendant has
satisfied the fourth prong:
(a) a sentence increased substantially based on a Booker error; (b) a
showing that the district court would likely impose a significantly
lighter sentence on remand; (c) a substantial lack of evidence to
support the entire sentence the Guidelines required the district court
to impose; (d) a showing that objective consideration of the [21
U.S.C.] § 3553(a) factors warrants a departure from the sentence
suggested by the Guidelines, or (e) other evidence peculiar to the
defendant that demonstrates a complete breakdown in the sentencing
process.
United States v. Dowlin, Nos. 03-8038 & 03-8055, __ F.3d __, 2005 WL
1155882, at *18 (10th Cir. May 17, 2005) (citations omitted).
Applying these factors to this case, we conclude that, on balance, Dalton
has not shown that we should exercise our discretion under the fourth prong.
First, whether Dalton’s sentence was substantially increased based on the Booker
error is open for debate. Without any judicial fact-finding, Dalton would have
been responsible for the 50 grams in the indictment to which he pled guilty, which
would have resulted in a total offense level of 23 and a Guidelines range of 84 to
105 months. The finding of 350 grams increased the offense level to 27, with a
Guidelines range of 120 to 150 months, an increase of three years and nine
months.
We need not resolve whether this increase must necessarily be considered
“substantial.” In the circumstances of this case, this factor is not dispositive of
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our holding since, as our discussion below demonstrates, the other factors listed
above predominate.
Accordingly, applying the second factor, even if we were to remand, the
district court likely would not impose a lighter sentence. After the district court
determined that the applicable Guidelines range was 120 to 150 months’
imprisonment, it sentenced Dalton to 150 months in prison, at the top of the
range. We recently held that the fourth prong was not satisfied because the
defendant was sentenced to the maximum term of imprisonment the court could
impose. United States v. Mozee, 405 F.3d 1082, 1092 (10th Cir. 2005). We
concluded that there was “no basis for us to assume that [the defendant] would
receive a lesser sentence if he were resentenced under a discretionary sentencing
regime in which the district court is required to ‘consider’ the guidelines when it
exercises its discretion.” Id. Dalton’s sentence likewise would not change in the
event of remand because the judge already had discretion to impose a lower
sentence but opted not to use that discretion.
Third, the sentence is supported by sufficient evidence in this case.
Although, as detailed above, Richmond’s testimony was vague and contradictory
at times, it was strongly corroborated by other evidence, including the items
indicative of a methamphetamine laboratory found in Dalton’s vehicle and trailer
home.
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Fourth, the 18 U.S.C. § 3553(a) factors do not support a lesser sentence.
When imposing a sentence at the top of the range, the court commented that the
lengthy sentence was warranted “to provide just punishment, to promote respect
for the law, and to protect the public.” Tr. of Sentencing Hr’g at 70, R. Vol. III.
These comments demonstrate that the district court considered the sentencing
factors under 18 U.S.C. § 3553(a) and found they did not favor a decreased term
of imprisonment. See § 3553(a)(2)(A)–(C) (stating that the court shall consider
the need for the sentence imposed to “promote respect for the law,” to “provide
just punishment for the offense,” and to “protect the public from further crimes of
the defendant”).
Finally, we can identify no peculiar evidence in this case demonstrating a
breakdown in the sentencing process. Therefore, on balance, the defendant has
not shown that the error in this case seriously affected the fairness, integrity or
public reputation of judicial proceedings, and thus he has not satisfied plain-error
review.
CONCLUSION
Accordingly, we AFFIRM Dalton’s sentence.
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