F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 30, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 03-4298
v. D. Utah
SCOTT D. HEMSLEY, also known as (D.C. No. 2:02-CR-87-01-ST)
Scott Dick Hemsley, also known as
Scooter,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HENRY, HARTZ, and TYMKOVICH, Circuit Judges.
Scott Hemsley pleaded guilty to manufacture or attempted manufacture of
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and possession of a
firearm by a restricted person in violation of 18 U.S.C. § 922(g)(3). On
December 8, 2003, he was sentenced in accordance with the United States
Sentencing Guidelines to 188 months in prison followed by 60 months’
supervised release. On appeal Mr. Hemsley contends that (1) the district court
*
This order and judgment is not binding precedent, except under the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.
erred in adopting a 33% iodine-to-methamphetamine conversion ratio in its drug-
quantity calculations, and (2) the district court violated United States v. Booker,
543 U.S. 220 (2005), in factfinding that increased his sentence. We have
jurisdiction under 18 U.S.C. § 3742(a) to review Mr. Hemsley’s sentence. We
affirm.
I. BACKGROUND
On February 6, 2002, Mr. Hemsley and various friends and family members
were named in a six-count indictment charging drug and firearm offences. The
charges stemmed from a search of the Hemsley residence by the Salt Lake City
Police Department (SLCPD) on December 11, 2001. Among the items found in
the search were a fully operable clandestine methamphetamine laboratory in a
bedroom closet, numerous pieces of drug paraphernalia located throughout the
residence, packaging material and scales, a loaded .40 caliber firearm in a vehicle
outside the residence, a loaded Tech 9 firearm in the bedroom closet, and
quantities of red phosphorous, pseudoephedrine, methamphetamine, iodine, and
marijuana.
The Hemsleys’ 12-year-old daughter, who was present at the home, was
taken into protective custody by the Division of Child and Family Services after
being examined by the Primary Children’s Medical Center and medically cleared.
-2-
A test conducted on the child’s hair showed that she had metabolized
amphetamine.
The SLCPD’s investigation showed that over the course of several months
Mr. Hemsley had purchased, and directed several of the codefendants to purchase,
82 ounces (2,324 grams) of iodine, a precursor to methamphetamine.
Mr. Hemsley ultimately pleaded guilty to one count of manufacturing
methamphetamine, see 21 U.S.C. § 841(a)(1), and one count of possession of a
firearm by a restricted person, see 18 U.S.C. § 922(g)(3). His offense level under
the Sentencing Guidelines was calculated as follows:
Base Offense Level under U.S.S.G. § 2D1.1(c)(2) 36
Enhancement for possession of a firearm under
U.S.S.G. § 2D1.1(b)(1) +2
Enhancement for creating a substantial risk of harm to the
life of a minor under U.S.S.G. § 2D1.1(b)(5)(C)
(now U.S.S.G. § 2D1.1(b)(6)(C)) +6
Enhancement for being the manager or supervisor of the
criminal activity under U.S.S.G. § 3B1.1(b). +3
Reduction for Acceptance of Responsibility under U.S.S.G. § 3E1.1. -3
Reduction for successful post-offense rehabilitation. -2
Reduction for providing material assistance to the government
under U.S.S.G. § 5K1.1. -7
Total Offense Level 35
The base offense level of 36 was calculated as follows: First, the amounts of
relevant chemicals were established: 174.85 grams of pseudoephedrine, 11.9
grams of actual methamphetamine, 4.1 grams of a substance containing
methamphetamine, 1.32 grams of marijuana, and 2,324.7 grams of iodine. (The
-3-
small amount of marijuana found in the residence was not included in the drug
quantity calculations, however, because it was determined to be for personal use.)
Second, the quantities of three of the chemicals were converted to their marijuana
equivalents using the drug equivalency tables in U.S.S.G. § 2D1.1 application
note 10: 174.8 grams of pseudoephedrine equate to 1,748 kilograms of marijuana,
11.9 grams of actual methamphetamine equate to 238 kilograms of marijuana, and
4.1 grams of a substance containing methamphetamine equate to 8.2 kilograms of
marijuana. Because iodine is not included in the drug equivalency tables,
conversion of the iodine to a marijuana equivalent involved an additional step of
first converting it to a methamphetamine equivalent. The 2,324.7 grams of iodine
was multiplied by 33% to equal 767.2 grams of actual methamphetamine. The
767.2 grams of methamphetamine was then equated to 15,344 kilograms of
marijuana. Third, the marijuana equivalents for the quantities of
methamphetamine were added to the marijuana equivalent for the “quantity of the
single [precursor] chemical that results in the greatest offense level,” U.S.S.G
§ 2D1.11 App. Note 4(A), in this case, iodine. Mr. Hemsley’s total marijuana
equivalent was 15,590.2 kilograms, which resulted in a base offense level of 36.
See § 2D1.1(c)(2).
Based on Mr. Hemsley’s criminal history category of II, the district court
found the applicable sentencing range to be 188-235 months. Consistent with the
-4-
government’s recommendation, Mr. Hemsley was sentenced at the bottom of that
range. This appeal followed.
II. IODINE-TO-METHAMPHETAMINE CONVERSION
Mr. Hemsley first argues that the district court erred in its calculation of
the applicable quantity of methamphetamine. He argues that there was
insufficient evidence, even under a preponderance-of-the-evidence standard, to
support the district court’s adoption of a 33% factor for converting iodine to
methamphetamine. This argument faces a major hurdle, however, because it was
not raised in district court.
The 33% conversion ratio first appeared in the presentence report (PSR).
The PSR calculated that the 82 ounces (2,324.7 grams) of iodine purchased for
the manufacturing operation would produce 767.2 grams (33% x 2,324.7) of
methamphetamine. Mr. Hemsley filed a variety of objections to the PSR’s drug-
quantity calculations, but, contrary to his assertion on appeal, he did not
specifically object to the iodine-to-methamphetamine conversion factor. The
objection he cites to us was the following:
3. Defendant asserts that the iodine be assessed only at the level of
methamphetamine which could be produced from the iodine and
other precursors located at the Defendant’s home, and he asserts that
the iodine cannot be used to manufacture methamphetamine
independent of other chemicals.
-5-
App. Vol. 1 at 98–99. But this objection does not challenge the proposition that
the weight of methamphetamine produced using a quantity of iodine is equal to
33% of the weight of the iodine. Rather, it argues that the quantity of
methamphetamine to be used in calculating the offense level cannot exceed the
amount that could be manufactured with the chemicals found in the residence. In
other words, the objection argues that the amount of iodine for sentencing
purposes should be capped at the amount that could have been used in
methamphetamine production given the amount of other precursors found at the
lab. We refuse to construe general objections to the drug-quantity calculation as
applying to all potential calculations and conversions necessarily involved in that
determination.
Furthermore, at Mr. Hemsley’s request the district court held an evidentiary
hearing on the issue of the drug-quantity calculation, and the appropriate iodine-
to-methamphetamine conversion ratio was not challenged at the hearing. After
the hearing the district court ordered the Probation Office to provide further
information on the calculations related to pseudoephedrine and iodine quantities.
The Probation Office responded with a four-page memorandum, which included
the foundation for the 33% ratio. Although Mr. Hemsley now attacks that
foundation (and the district court’s adoption of the ratio in reliance on it) as
inadequate, in district court he made no objection to the conversion ratio or the
-6-
Probation Office’s memorandum. We therefore conclude that Mr. Hemsley failed
to object below to the use of the 33% conversion ratio.
Because Mr. Hemsley did not object to the 33% conversion ratio in the
district court, our review is only for plain error. See Jones v. United States, 527
U.S. 373, 389 (1999). Plain error exists when there is (1) error, (2) that is plain,
and (3) that affects substantial rights. Id. If all three conditions are met, the
court may then exercise its discretion to notice a forfeited, plain error, but only if
(4) the error “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id. (alteration in original, internal quotation marks
omitted).
“This court has held repeatedly that factual disputes not brought to the
attention of the [trial] court do not rise to the level of plain error.” United States
v. Svacina, 137 F.3d 1179, 1187 (10th Cir. 1998). In Svacina the defendant’s
appeal raised for the first time an objection that the government had produced no
evidence that the methamphetamine he distributed was D-methamphetamine rather
than L-methamphetamine (before November 1, 1995, the drug equivalency tables
distinguished between D- and L-methamphetamine). Id. at 1185-87. We said,
“This is precisely the kind of issue that should be raised at sentencing, if not
before, so that a record sufficient to permit adequate review is thereby
developed.” Id. at 1187 (internal quotation marks omitted). The same is true
-7-
here. Because of Mr. Hemsley’s failure to object, the government was denied
notice that the iodine-to-methamphetamine conversion ratio was contested and
thus the opportunity to present supporting evidence. See id. (“As a factual issue,
an objection is the only means by which a party can give notice that an
evidentiary hearing is required or that the government has a burden it has not
met.”).
Although the district court “may not satisfy its obligation by simply
adopting the presentence report,” United States v. Farnsworth, 92 F.3d 1001,
1011 (10th Cir. 1996), it may “adopt[] the presentence report as relevant and true
after an analysis of [its] findings and Defendant’s objections thereto.” Svacina,
137 F.3d at 1183. In the absence of any objection by the defense, the district
court was entitled to find facts in accordance with the Probation Office’s
representation that the “amounts of iodine were calculated pursuant to
information received from the Drug Enforcement Administration (DEA). The
DEA representative noted that an ultra-conservative ratio of converting iodine to
methamphetamine (actual) would be 3:1 or .33, given the method used by the
defendants to manufacture methamphetamine in the clandestine lab.” App. Vol. 2
at 183. Accordingly, we hold that there was no plain error justifying reversal
with respect to this issue.
III. BOOKER ERROR
-8-
Mr. Hemsley argues that he is entitled to resentencing based on the district
court’s constitutional error under United States v. Booker, 543 U.S. 220 (2005).
“A district court commits constitutional Booker error when it applies the
Guidelines in a mandatory fashion, makes factual findings (other than the fact of
prior convictions), and imposes a sentence above the maximum that would apply
in the absence of such findings.” United States v. Clark, 415 F.3d 1234, 1238
(10th Cir. 2005) (internal quotation marks and emphasis omitted). In this case the
district court found by a preponderance of the evidence the following facts that
increased Mr. Hemsley’s offense level: (1) the offense created a substantial risk
of harm to a minor child; (2) the quantity of iodine purchased as part of the
manufacturing conspiracy could be expected to yield 33% of that quantity of
methamphetamine; and (3) Mr. Hemsley was the manager or supervisor of
criminal activity involving at least five persons.
When a Booker issue is not raised in the district court, we review the
sentence only for plain error. United States v. Dazey, 403 F.3d 1147, 1174 (10th
Cir. 2005). As discussed above, “[p]lain 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 public reputation of judicial proceedings.” United States
v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (internal quotation marks
omitted.).
-9-
Constitutional Booker error satisfies the first two prongs of the plain-error
test. Clark, 415 F.3d at 1240. The defendant can meet his burden to satisfy the
third prong, which requires that the error “affected the outcome of the district
court proceedings,” Dazey, 403 F.3d at 1175 (internal quotation marks omitted),
by showing a reasonable probability that the district court would impose a
sentence outside the applicable guidelines range if the case were remanded, or by
showing a reasonable probability that a jury, applying the beyond-a-reasonable-
doubt standard, would not have found the facts necessary to enhance the sentence.
Id. If the defendant satisfies the third prong, the fourth prong still requires him to
show that the error “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation
marks omitted). Although we conduct this review less exactingly in cases of
constitutional Booker error, see Dazey, 403 F.3d at 1174, it is still a “demanding
standard,” Gonzalez-Huerta, 403 F.3d at 737.
Here, the government concedes that the district court engaged in fact-
finding that amounted to constitutional Booker error in Mr. Hemsley’s sentence.
Therefore, we need only analyze whether Mr. Hemsley has satisfied his burden on
the third and fourth prongs of the plain-error inquiry. Because the fourth prong
imposes such a high burden, Booker-error cases are often resolved on the fourth
prong rather than the third. See United States v. Lawrence, 405 F.3d 888, 906
-10-
(10th Cir. 2005) (“This court need not answer the question whether a defendant
can show prejudice under the third prong of the plain-error test if the defendant
cannot also demonstrate that the district court’s error seriously affected the
fairness, integrity, or public reputation of judicial proceedings . . . .”).
“[S]entencing error meets the fourth prong of plain-error review only in those rare
cases in which core notions of justice are offended.” Id. (internal quotation marks
omitted). Because we conclude that Mr. Hemsley cannot meet this burden, we
need not address the third prong.
In United States v. Bass, 411 F.3d 1198, 1205 (10th Cir. 2005), we
addressed a similar plain-error claim. Mr. Bass was convicted on five counts of
knowing possession of child pornography after an investigation found more than
2000 images on his computer. Id. at 1200. He was sentenced, however, under the
guideline governing offenses involving trafficking in child pornography. Id. at
1202. Although he did not object at sentencing to application of the trafficking
guideline, we held that the district court had committed plain error and remanded,
noting: “Although the PSR asserted, and the district court in turn found, that the
offenses at issue involved trafficking in, as opposed to mere possession of, child
pornography, neither the PSR nor the district court offered a rationale for the
finding, and there is little evidence in the record to support such a finding.” Id. at
1205. We identified four factors as directing that we should exercise our
-11-
discretion under the fourth prong to correct the error in Mr. Bass’s sentence.
First, we considered that the error was constitutional in nature, because the
burden of plain-error review is imposed less rigorously in such cases. Id.
Second, we considered the “complete lack of record support for the district
court’s finding.” Id. Third, we considered that the error increased the
defendant’s offense level. Id. And, finally, we considered “indications . . . that
[the district court] might have selected a lower sentence had it had the discretion
to do so.” Id.
We now evaluate these four factors in Mr. Hemsley’s case. As in Bass, the
errors in Mr. Hemsley’s sentence are constitutional in nature and increased the
offense level for which he was sentenced. Mr. Hemsley’s case significantly
differs from Bass, however, in the application of the other two factors.
In contrast to Bass, Mr. Hemsley’s sentencing enhancements are not
plagued by a “complete lack of record support.” Id. Mr. Hemsley does not
challenge the sufficiency of the evidence with respect to the district court’s
preponderance-of-the-evidence findings regarding child-endangerment and his
role in the offense. As for the iodine-to-methamphetamine conversion ratio, the
supplemental information provided by the Probation Office reported that “[t]he
DEA representative noted that an ultra-conservative ratio of converting iodine to
methamphetamine (actual) would be 3:1 or .33, given the method used by the
-12-
defendants to manufacture methamphetamine in the clandestine lab.” App. Vol. 2
at 183. Mr. Hemsley did not challenge the conversion ratio below, and we are not
inclined to presume that if he had, the DEA would have been unable to support its
assertion.
Moreover, we cannot assume, as in Bass, that the district court’s having
sentenced Mr. Hemsley at the bottom of his guideline range suggests that the
court would have reduced the sentence still further had it known that under
Booker it had that discretion. Circumstances here compel the opposite inference.
To begin with, the district court expressed satisfaction with the sentence imposed:
[T]he Court believes that under the totality of the circumstances of
this case, in light of what the defendant originally faced if the
government had not made its effort to bring Mr. Hemsley more in
line with the other defendants by bringing a felony information in
place of the indictment, and in light of the argument that [the
government] made, that the Court agrees with fully, that were it not
for Mr. Hemsley, the other defendants in all likelihood would not be
where they are, the Court believes that this sentence . . . of 188
months is consistent relative to culpability of the defendants in this
case.
App. Vol. 1 at 172-73. Mr. Hemsley has not pointed us to anything indicating
that the court would feel differently upon remand. And, more importantly, the
district court actually possessed and exercised discretion to depart from the
guidelines in imposing the original sentence. It granted a departure under
U.S.S.G. § 5K1.1 because of Mr. Hemsley’s assistance to the government. Under
§ 5K1.1 the court “retains discretion to depart to the degree it finds appropriate,
-13-
regardless of a specific recommendation by the government.” United States v.
Ollson, 413 F.3d 1119, 1121 (10th Cir. 2005). The district court clearly
understood the nature of its discretion under § 5K1.1—it granted a seven-level
departure although the government had requested only a five-level reduction in its
motion for downward departure. Given the district court’s exercise of discretion,
it would be too speculative to suppose that the court would reduce the sentence
further under Booker. See id. (holding nonconstitutional Booker error harmless
because the court had acted under § 5K1.1 discretion in the original sentencing).
Accordingly, we hold that affirming Mr. Hemsley’s sentence will not
“seriously affect[] the fairness, integrity, or public reputation of judicial
proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation marks
omitted). On the record before it the district court is not likely to revisit its
sentence, and there is no unfairness in denying Mr. Hemsley a second opportunity
to challenge the factual support for the sentencing enhancements.
IV. CONCLUSION
We AFFIRM the sentence imposed by the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-14-