United States v. Sells (Shelby)

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
March 1, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. Nos. 04-7061 & 04-7072

SHELB Y W AYNE SELLS;
ANTH ONY W AYNE SELLS,

Defendants - Appellants.

Appeal from the United States District Court
for the E astern District of Oklahom a
(D .C . N o. C R-03-69-W H )

Jill M . W ichlens, Assistant Federal Public Defender, Denver Colorado (Raymond
P. M oore, Federal Public D efender w ith her on the briefs) for D efendant-
Appellant Shelby W ayne Sells.

Donn F. Baker, Tahlequah, Oklahoma for Defendant-Appellant Anthony W ayne
Sells.

Dennis Fries, Assistant United States Attorney, M uskogee, Oklahoma (Sheldon J.
Sperling, United States Attorney, Jeffrey A. Gallant, Assistant United States
Attorney, on the briefs) for the Plaintiff-Appellee.

Before L UC ER O, M cKA Y, and M U RPH Y, Circuit Judges.

L UC ER O, Circuit Judge.
 W e have combined these separate appeals solely for the purpose of

disposition. Between early 2002 and July 2003, Shelby Sells and his son Anthony

Sells were engaged in a large-scale methamphetamine manufacturing and

distribution operation on Shelby’s property in rural Sequoyah County, Oklahoma.

Both were convicted of drug and firearm offenses relating to their participation in

this enterprise, and sentenced to substantial terms of imprisonment. Anthony 1

appeals both his convictions and sentence. Because we conclude that reversible

error did not occur with respect to either, we AFFIRM . Shelby appeals only his

sentence. The government concedes that the district court comm itted Booker

error in sentencing Shelby, and that this error was not harmless. In addition, we

conclude the district court’s determination of the drug amount attributable to

Shelby was insufficiently particularized. Thus, on the government’s concession,

with respect to Shelby Sells, we REVERSE and REM AND for resentencing.

I

Sixty-one year old Shelby Sells lived with his wife M axine on a ten-acre

property he owned in Sequoyah County, Oklahoma. In addition to Shelby’s

house, the property contained numerous small buildings, miscellaneous items

relating to Shelby’s junk business, and two other residences. One house, located

near the rear of the property and more than two hundred yards behind Shelby’s

1
Because three members of the Sells family are discussed in this opinion –
Anthony, Christopher, and Shelby – we refer to them by their first names when
appropriate.

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home, was occupied by Anthony. The other, approximately fifty yards away from

Shelby’s residence, was occupied by Shelby’s grandson Christopher Sells.

Based on information obtained from confidential informants that Anthony

was engaged in manufacturing methamphetamine, members of the Sequoyah

County Sheriff’s Department obtained a warrant to search Anthony’s home on

Shelby’s property. In the early morning hours of July 12, 2002, members of the

Sheriff’s Department, federal agents from the Department of Alcohol, Tobacco,

and Firearms (“ATF”), and other law enforcement personnel executed the search.

After their attempts to knock and announce went unansw ered, agents forcibly

entered. They observed Anthony emptying a large jar of liquid into the kitchen

sink. 2 During the ensuing search, agents found substantial evidence that Anthony

was manufacturing and distributing methamphetamine, including: (1) a “bag lab”

in Anthony’s living room containing the precursor chemicals and equipment

needed to manufacture methamphetamine; (2) glass canisters, scales, protective

goggles, a respirator, and other equipment commonly used in the manufacturing

and distribution of methamphetamine; 3 (3) 38.3 grams of pseudoephedrine, the

base ingredient used to make methamphetamine; (4) 28.3 grams of a

2
Because the sink drained outside, agents were able to recover a sample of
the liquid, which tested positive for methamphetamine.
3
Some of these items contained a white powder residue. Others had amber
stains caused by contact with iodine, a chemical used in the manufacturing
process.

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methamphetamine mixture; and (5) precursor chemicals and cutting agents

comm only used in the manufacture of methamphetamine. Also recovered from

the home were two firearms, both within Anthony’s reach when agents entered.

One officer testified that while inside the residence he smelled a strong chemical

odor associated with methamphetamine manufacturing.

Following the search, federal authorities continued their investigation,

ultimately obtaining search warrants for each of the three residences on the

property. On December 11, 2002, state and federal law enforcement officers

executed those warrants. In Anthony’s residence, agents initially did not find

substantial and direct evidence that Anthony was continuing to manufacture and

distribute methamphetamine. 4 W hen they opened the lit wood-burning stove in

his residence, however, authorities observed in the glow of the fire equipment

used in the manufacturing process 5 and burning U.S. currency. A sample of the

stove’s contents tested positive for pseudoephedrine and methamphetamine.

4
They did find nine pseudoephedrine tablets in Anthony’s shirt pocket, a
spray bottle filled with iodine, 78 empty blister packs previously containing
pseudoephedrine pills, a razor blade and a metal spoon containing white powder
residue, acetone (a solvent used to manufacture methamphetamine), and a piece of
PV C pipe painted with a camouflage pattern.
5
Inside the stove were melting blister packs previously containing
pseudoephedrine pills, multiple pills fused together by the heat, red phosphorous,
coffee filters containing caked substances, and other items containing white
powder residue.

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Their search of Anthony’s residence was cut short, however, because the air

registered as unsafe soon after they opened the stove.

In Shelby’s home, authorities found assorted ammunition, a set of precision

digital scales (often used by narcotics dealers to weigh small quantities), a bucket

of assorted glassware near a set of rubber gloves, small plastic bags, and a

tobacco can containing $1500.00 in cash. W hen officers discovered the money,

Shelby claimed that he did not where it came from and abandoned it.

Inside the third residence, where Christopher lived, agents found a two-liter

plastic bottle containing a liquid that tested positive for methamphetamine, a

small plastic bag of methamphetamine, and a sack containing empty blister packs.

In addition to the drug paraphernalia, authorities recovered two shotguns and tw o

phone bills addressed to Shelby.

Approximately six months later, federal authorities received information

that, unrepentantly, Anthony was continuing to manufacture methamphetamine at

an abandoned structure near the Sells’ property and in his residence. They

obtained a third search warrant for his residence, and planned to execute the

warrant on the morning of July 18, 2003. Shortly before they were scheduled to

proceed, Anthony received a call informing him that a search was imminent.

Anthony instructed one of his guests, Robert Isaac, to hide a couple of bags and a

black case in the woods behind the property. He then instructed another

individual, W illiam K eith Edwards, to pack up other items, load them into the

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jeep, and hide them in the woods. W hen Edwards finished his task, he returned to

Anthony’s home and began burning various pieces of evidence in three large

barrels while Anthony washed glassware. Before Anthony left, he handed

Edwards the glassware and asked him to dispose of it. All others left soon

thereafter. 6

At approximately 5 a.m. federal and state authorities executed the search

warrant. The only person found near the residence w as M arion Royal Daniels,

found sitting outside Anthony’s home in his vehicle. Inside, agents discovered

assorted glassware in the sink, a digital scale on a coffee table in Anthony’s den,

and a BB gun. Outside, agents were able to extinguish the fire in one burning

barrel in time to take inventory of its contents: a can of carburetor fluid with a

hole punched in the bottom, 7 and blister packs of pseudoephedrine. In the woods

behind the Sells’ property, authorities uncovered evidence of a “large

6
M embers of the ATF’s special response team w ere dropped off before the
search to observe the premises, and witnessed these activities. ATF Special
Response Team Agent Ruben Chavez observed several people running back and
forth, getting into vehicles, knocking on doors, and putting items into fires lit
around Anthony and Chris’ residences.
7
M ethamphetamine manufacturers will often punch a hole in the bottom of
a can of carburetor fluid in order to obtain the ether. Ether is an ingredient often
used in manufacturing methamphetamine.

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methamphetamine laboratory,” 8 36.3 grams of pseudoephedrine, 66.3 grams of

pure methamphetamine, and 7.5 grams of pure amphetamine.

On November 14, 2003, a grand jury issued an eight-count superceding

indictment against Shelby, Anthony, and two other named individuals based on

their participation in the alleged methamphetamine conspiracy. 9 Anthony was

charged with seven counts: Conspiracy to knowingly and intentionally possess

with intent to distribute methamphetamine, and to knowingly and intentionally

manufacture and distribute methamphetamine, both in violation of 21 U.S.C.

§ 846 (“Count One”); Attempt To M anufacture M ethamphetamine on or about

July 12, 2002, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (“Count Two”);

Possession of a Firearm During Commission of a Drug Trafficking Crime on or

about July 12, 2002, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (“Count Three”);

8
Tucked under rocks and hidden among the trees, perversely reminiscent of
an egg hunt, were scales, assorted glassware containing gallons of various liquids
(many of which later tested positive for methamphetamine or precursor
chemicals), plastic hoses, an air purifier, pill bottles, iodine crystals, a PVC tube
covered in camouflage tape, and pseudoephedrine.
9
The other named individuals were Daniels (Anthony’s uncle) and
Edwards. The government dismissed the charges against Edwards prior to trial in
exchange for his cooperation and testimony. Daniels was charged with
conspiracy to manufacture methamphetamine because: (1) H is fingerprints were
found on glassware obtained from Anthony’s residence during the July 18, 2003
search; and (2) He was found at the Sells’ property during the July 18, 2003
search. At trial, the only evidence presented establishing his involvement in the
conspiracy was provided by a witness deemed non-credible by the district court.
All other w itnesses testified that he did not assist in the drug operations.
Following closing arguments, Daniels moved for a judgment of acquittal, which
was granted.

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Felon in Possession of a Firearm on or about July 12, 2002, in violation of 18

U.S.C. § 922(g)(1) (“Count Four”); Attempt To M anufacture M ethamphetamine

on or About July 18, 2003, in violation of 21 U.S.C. §§ 846 and 841(a)(1)

(“Count Six”); Felon in Possession of a Firearm on or about July 18, 2003, in

violation of 18 U.S.C. § 922(g)(1) (“Count Seven”); and Establishment of

M anufacturing Operations, in violation of 21 U.S.C. § 856(a)(1) (“Count Eight”).

Shelby was charged with only three counts: Count One (Conspiracy), Count

Eight (Establishment of M anufacturing Operations), and Felon in Possession of

Ammunition on December 11, 2002, in violation of 18 U.S.C. § 922(g)(1)(“Count

Five”).

During a five-day trial, the government presented numerous witnesses who

testified to the Sells’ methamphetamine operations. Holly Brow n, Anthony’s

former girlfriend, testified that she assisted Anthony with manufacturing two to

four ounces of methamphetamine more than 200 times, that Shelby would obtain

his methamphetamine from Anthony, and that approximately 20 to 25 people

visited the Sells’ property each day. She also established that the two firearms

found during the July 12, 2002 search were owned by Anthony. George Hanna, a

frequent visitor to the Sells’ property, testified that he purchased a total of

approximately five pounds 10 of methamphetamine from Anthony and Shelby.

10
Although Hanna clearly testified to purchasing a five-pound quantity,
(continued...)

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Jamie Landherr, another individual who frequented the Sells, testified that she

purchased one to two ounces of methamphetamine during each of her six to eight

visits to the Sells’ property, and that she personally observed Shelby obtain

methamphetamine from Anthony for distribution. M ark Osburn testified that

Anthony attempted to manufacture methamphetamine the evening prior to the July

12, 2002 search. He also corroborated other testimony regarding the Sells’ illegal

activities. Edwards testified that Anthony attempted to manufacture

methamphetamine the night before the July 18, 2003 search, and described how

he assisted Anthony in manufacturing approximately a pound of

methamphetamine on several prior occasions. M ultiple federal and state law

enforcement authorities testified that the items recovered from Anthony and

Shelby’s residences during the searches were consistent with the manufacture and

distribution of methamphetamine.

Anthony was convicted on six of the seven counts for which he was

charged and sentenced as follows: 240 months’ imprisonment for Counts One,

Two, Six, and Eight, all to run concurrently; 120 months’ imprisonment for Count

Four, to run concurrently with his 240 month sentence; and 60 months’

im prisonment for C ount Three, to run consecutively to the other sentences. H e

10
(...continued)
neither party challenges the one-pound figure attributed to Anthony via H anna in
the PSR, and which the district court relied upon at sentencing.

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was acquitted of Count Seven (Possession of a Firearm in Furtherance of a Drug

Trafficking Crime on July 18, 2003). Shelby was convicted on all counts, and

sentenced at the low end of the Guidelines range: 240 months’ imprisonment for

Counts One and Eight, to be served concurrently, and 120 months’ imprisonment

for Count Five, to be served consecutively to the 240 month sentence. Anthony

appeals his convictions and sentence. Shelby appeals only his sentence.

II

A

Anthony argues the district court erred in failing to enforce a state plea

agreement he entered into with state prosecutors for charges stemming from the

July 12, 2002 search of his home. He alleges that during the state proceedings the

federal government agreed not to prosecute him in federal court based on

evidence obtained during that search if he accepted the state plea. He accordingly

requests that all charges relying on such evidence be dismissed. The district court

rejected that argument. W e take the trial court’s view of the matter.

Following the July 12 search, Anthony was charged in Oklahoma state

court with multiple drug and firearm offenses. He pled nolo contendre to one

count of “possession of [a controlled dangerous substance] w ith intent to

distribute” pursuant to a plea agreement, and received a five-year suspended

sentence. Addendum B to that plea agreement states:

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 It is further understood that based upon statements of [sic] Assistant
District Attorney that with the entering of these pleas that Federal
Authorities have agreed not to institute any proceedings or
indictments against this Defendant for any offense surrounding these
cases. That Defendant has been told that the various Federal
authorities are in agreement with this plea and failure to enter this
plea agreement will result in the intervention of said Federal
Authorities.

Counts Two, Three, and Four are based entirely on items discovered during

the July 12 search, and Counts One and Eight rely in part on such evidence, but

also address conduct occurring after Anthony entered into the state plea

agreement.

Ordinarily, the federal government is not bound by provisions of a state

plea agreement or the representations of a state prosecutor unless it was a party to

the state proceedings. See United States v. Padilla, 589 F.2d 481, 484 (10th Cir.

1978). The federal government may become a party to state proceedings if it has

knowledge of those proceedings and consents to the representations made by state

prosecutors. See United States v. Fuzer, 18 F.3d 517, 520 (7th Cir. 1994)

(“[S]tate prosecutors cannot bind federal prosecutors without the latter’s consent

and knowledge.”); Hendrix v. Norris, 81 F.3d 805, 807 (8th Cir. 1996) (same).

Anthony argues the federal government was a party to the state

proceedings because his attorney during those proceedings, Bill Ed Rodgers,

believed that Oklahoma A ssistant District Attorney Lynn Anderson was

communicating with federal authorities. During the sentencing hearing, Rogers

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testified on this issue, conceding that he knew the state district attorney was not

authorized to speak for the federal government at the time. Further, the plea

agreement is not signed by an Assistant United States A ttorney, nor does it

identify the U.S. Attorney who allegedly consented to the inclusion of Addendum

B. Notably, Anthony has not produced any evidence that he communicated

directly with federal authorities. Absent such evidence, we hold there is no basis

to bind the federal government to the terms of the state plea agreement. 11

B

Anthony also argues the evidence presented at trial was insufficient to

support his conviction for conspiracy to manufacture and distribute

methamphetamine. In evaluating this claim, our “restrictive standard of review

for a sufficiency of the evidence question provides us with very little leeway.”

United States v. Evans, 970 F.2d 663, 671 (10th Cir. 1992).

W e review de novo whether the government presented sufficient
evidence to support a conviction. In so doing, we view the facts in
evidence in the light most favorable to the government. W e will not
weigh conflicting evidence or second-guess the fact-finding decisions
of the jury. Rather, our role is limited to determining whether a
reasonable jury could find guilt beyond a reasonable doubt, based on

11
State prosecutors should proceed cautiously in making similar
representations to state defendants without written authorization by U.S.
Attorneys. See, e.g., Santobello v. New York, 404 U.S. 257, 262-63 (1971)
(holding that a defendant later prosecuted by federal authorities when assured by
state authorities that such prosecution would not occur may use the representation
to void the state plea agreement).

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 the direct and circumstantial evidence, together with the reasonable
inferences to be drawn therefrom.

United States v. Summers, 414 F.3d 1287, 1293-94 (10th Cir. 2005) (citations and

quotations omitted).

To establish a conspiracy, the government was required to show: “(1) that

two or more persons agreed to violate the law, (2) that the defendant knew at least

the essential objectives of the conspiracy, . . . (3) that the defendant knowingly

and voluntarily became a part of it, and (4) that the alleged coconspirators w ere

interdependent.” Evans, 970 F.2d at 668 (internal quotation and citation omitted).

This burden may be met by either direct or circumstantial evidence. Id. On our

review of the lengthy record in this case, the evidence was clearly sufficient to

support the jury’s verdict.

Anthony appears to have incorrectly assumed that because the charges

against Daniels were dismissed, the A nthony-Daniels conspiracy to manufacture

methamphetamine charge was no longer provable, thus leaving only a charge that

he conspired with Shelby to possess and distribute methamphetamine.

Accordingly, he limits his sufficiency challenge to the evidence demonstrating his

conspiracy with Shelby.

Count One of the superceding indictment, however, charged that Anthony,

Daniels, Shelby, Edwards, and unnamed others conspired to (1) “knowingly and

intentionally possess with intent to distribute methamphetamine,” and (2)

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“knowingly and intentionally manufacture and distribute methamphetamine.”

Edwards testified to assisting Anthony manufacture methamphetamine on

multiple occasions. Brown, his former girlfriend, testified that during a ten-

month period she continually aided Anthony’s manufacturing operations. Isaac

and Edwards testified to abetting Anthony by hiding evidence of his activities in

the woods prior to the July 18, 2003 search. This unrefuted evidence alone

supports his conviction on Count One. See United States v. Vaziri, 164 F.3d 556,

566 (10th Cir. 1999) (holding that a defendant charged in a conspiracy with

multiple objectives may be convicted based on proof that the defendant conspired

to commit any one of the objectives).

Nonetheless, Anthony is also incorrect that there is insufficient evidence to

support the finding that he conspired with Shelby. Although there was no

evidence of an express agreement between Anthony and Shelby, such an

agreement is not required. An agreement “may be inferred from the facts and

circumstances of the case,” including “frequent contacts among the defendants

and from their joint appearances at transactions and negotiations.” Evans, 970

F.2d at 669 (citations and quotations omitted); see also United States v.

Hartsfield, 976 F.2d 1349, 1354 (10th Cir. 1992).

At trial, Hanna testified that Shelby introduced him to Anthony, and told

him that “if he didn’t have [the drugs], then I could get them from his son.”

Brown testified that every time Anthony manufactured methamphetamine, Shelby

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would come to his house and collect drugs for distribution. Landherr observed

Anthony provide Shelby with methamphetamine, which Shelby sequentially sold

to Hanna. Edwards testified that Shelby was often nearby while he and Anthony

cooked a batch of methamphetamine. Taking all inferences in favor of the

government, a reasonable jury could conclude based on these facts that Anthony

had a tacit agreement with Shelby, whereby Anthony manufactured

m etham phetamine and he and Shelby would then distribute it. Accordingly, w e

A FFIR M . 12
C

Anthony’s third challenge to his conviction concerns evidence admitted

during the trial obtained from Christopher’s residence. He claims that the district

12
Anthony’s confusion about whether a buyer-seller relationship
establishes a conspiracy stems from a misunderstanding of the retail buyer rule.
Our circuit has previously held that a buyer in a retail drug transaction is not
considered part of the larger conspiracy to manufacture and distribute a drug. See
Evans, 970 F.2d at 669 (“Evidence that an intermediate distributor bought from a
supplier might be sufficient to link that buyer to a conspiracy to distribute drugs
because both buyer and seller share the distribution objective. However, a
consumer generally does not share the distribution objective and thus would not
be part of a conspiracy to distribute crack cocaine.”); United States v. M cIntyre,
836 F.2d 467, 471 (10th Cir. 1987). As discussed supra, Anthony’s role was
much larger than that of a retail buyer. At a minimum, it established that
Anthony and Shelby shared a common distribution objective.
M oreover, although Anthony may be correct that Shelby had additional
suppliers – such as “Boss Green” or “Old M an Green” – this information is
irrelevant to whether a conspiracy existed between father and son. See United
States v. Small, 423 F.3d 1164, 1183-84 (10th Cir. 2005) (rejecting defendant
drug seller’s claim that purchaser’s use of an additional supplier precluded a
reasonable jury from convicting him of the conspiracy charge).

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court improperly admitted this evidence against him because it was irrelevant and

prejudicial. He further argues that the district court erred when it denied his

motion for a mistrial because admission of this evidence caused a “fatal

variance.”

1

W e review the district court’s decision whether to grant a mistrial based on

a prejudicial variance for abuse of discretion. See United States v. Caballero, 277

F.3d 1235, 1242 (10th Cir. 2002). 13

This circuit recognizes tw o types of variances. A constructive amendment,

which is reversible per se, occurs when the district court’s instructions and the

proof offered at trial broaden the indictment. United States v. W right, 932 F.2d

868, 874 (10th Cir.1991) (overruled on other grounds). A simple variance arises

when the evidence adduced at trial establishes facts different from those alleged

in the indictment, and triggers harmless error analysis. Hunter v. New M exico,

916 F.2d 595, 598 (10th Cir. 1990). The defendant bears the burden of proof both

13
Anthony claims that we review de novo whether a variance existed and
whether it was fatal. Generally, this statement of the law is correct. See United
States v. M cLatchey, 217 F.3d 823, 831 (10th Cir. 2000); United States v.
W illiamson, 53 F.3d 1500, 1512 (10th Cir.1995). However, his argument that the
evidence caused a “fatal variance” was in the form of a motion for a mistrial
leading to application of a different standard of review. See Caballero, 277 F.3d
at 1242. Under either standard, however, our conclusion on this issue is the same.

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to show that a variance occurred and that it was fatal. United States v. M oore,

198 F.3d 793, 795-96 (10th Cir. 1999).

A nthony has not met that burden. He does not distinguish between the two

types of variances, instead arguing generally that “admission of the testimony

and exhibits [related to the items seized from Christopher’s home] that had no

connection to him” resulted in a fatal variance. Nor does he identify in detail

which charges w ere subject to the “fatal variance,” w hich is particularly

problematic in light of the multiple-count indictment. Based on our independent

review, we conclude that the only charge potentially affected by this evidence

was Count Eight, which charged Shelby and Anthony with Establishment of

M anufacturing Operations at Rural Route 3, Box 129 (the address of the entire

ten-acre property). 14

Admission of evidence found in Christopher’s residence did not constitute a

constructive amendment to this charge. The indictment broadly alleged that

Anthony established manufacturing operations throughout the entire property, and

Christopher’s residence is located on the property. The only question is whether

a simple variance occurred. Even if admission of this evidence caused a simple

variance, it was not fatal, because Anthony is unable to satisfy the second prong

14
All other counts of the indictment refer to items discovered during the
July 12, 2002 and July 18, 2003 searches, and only Anthony’s house was searched
on those dates. The conspiracy charge is not implicated by this evidence, because
nothing found in Christopher’s residence establishes any form of conspiracy.

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of the harmless error analysis: that the variance substantially prejudiced his

rights. See United States v. W indrix, 405 F.3d 1146, 1154 (10th Cir. 2005) (“A

defendant’s substantial rights are not prejudiced merely because the defendant is

convicted upon evidence which tends to show a narrower scheme than that

contained in the indictment, provided that the narrower scheme is fully included

within the indictment.”) (quotations and citations omitted).

In order to convict someone of establishing manufacturing operations the

government must show that “the defendant (1) knowingly (2) opened or

maintained a place (3) for the purpose of manufacturing by repackaging,

distributing, or using any controlled substance.” United States v. Verners, 53

F.3d 291, 295 (10th Cir. 1995). A defendant “knowingly maintains” a residence

through the follow ing actions:

Acts evidencing such matters as control, duration, acquisition of the
site, renting or furnishing the site, repairing the site, supervising,
protecting, supplying the food to those at the site, and continuity are,
of course, evidence of knowingly maintaining the place considered
alone or in combination with evidence of distributing from that place.

Id. at 296 (citing United States v. Clavis, 956 F.2d 1079, 1091 (11th Cir. 1992)).

There is overwhelming evidence that Anthony established manufacturing

operations at his residence and used the property generally for such illegal

purposes. Even if the evidence proved, as Anthony alleges, that he was not

responsible for evidence found in Christopher’s house, and thus he did not

establish manufacturing operations on the entire property, this merely shows that

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the part of the property Anthony established for illicit purposes was smaller than

alleged in the indictment. Proof of a narrower scheme than alleged in the

indictment does not prejudice a defendant’s substantial rights. See W indrix, 405

F.3d at 1154; United States v. M cClatchey, 217 F.3d 823, 833-34 (10th Cir. 2000)

(same).

A variance may affect the substantial rights of the accused, however, if it

is more likely than not that the jury imputed the evidence to the defendant in

determining guilt. U nited States v. Harrison, 942 F.2d 751, 758 (10th Cir. 1991).

Based on the record, it is highly unlikely the jury attributed the items found in

Christopher’s home to Anthony. Eric Booker, the ATF special agent who

performed the search of Christopher’s residence, admitted that there was no basis

to conclude Anthony had any association with that residence or the items found

therein. M oreover, the jury demonstrated that it was able to distinguish which

items were attributable to whom by acquitting Anthony of Count Seven, which

charged him with possession of a firearm found in the woods near his home. See

W indrix, 405 F.3d at 1155 (noting that the jury’s ability to distinguish the

defendant from his co-defendants was demonstrated by its acquittal of a co-

defendant on all counts while convicting the defendant).

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 Anthony has been unable to identify the “fatal variance.” Even if there was

a variance, it did not prejudice his substantial rights. Accordingly, the district

court did not abuse its discretion in declining to grant a mistrial. 15

2

Anthony contends that evidence of items found in Christopher’s home

should have been excluded as irrelevant and unduly prejudicial. W e review the

district court’s decision to admit evidence for abuse of discretion. United States

v. Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999).

Relevant evidence is “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid.

401. Federal Rule of Evidence 403 provides that such evidence “may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.”

15
The question of whether a variance occurred on these facts is admittedly
a close call. On the one hand, the government alleged that Anthony and Shelby
maintained the entire property for the purposes of manufacturing, distributing,
and using methamphetamine. Evidence that Christopher’s house contained
contraband is arguably within the scope of the indictment. However, no evidence
was introduced that Anthony knowingly maintained or had any connection to
Christopher’s residence. Thus, introducing evidence that Christopher may have
been manufacturing methamphetamine at his home when the indictment states
only that Anthony and Shelby were involved in manufacturing and distributing
the drug arguably constitutes a simple variance.

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 The government argues that evidence found in Christopher’s home was

relevant to Count Eight. Its theory of the case was that Anthony and Shelby

maintained the entire property for their illegal purposes. Thus, it contends that

anything found on the property was relevant to that charge. However, when the

place allegedly maintained for manufacturing operations is a residence, the

defendant must have a “substantial connection” to the home, as opposed to simply

being a “casual visitor.” Verners, 53 F.3d at 296.

Had the government presented evidence that Anthony had any connection

to Christopher’s house, the evidence found there may have been relevant to

whether Anthony had a sufficient connection to the premises. However, such

evidence simply was not provided at trial. Christopher’s home was consistently

treated as a separate residence by law enforcement authorities. The agent

conducting the search of Christopher’s home found nothing tying the premises to

Anthony, no witness testified that Anthony ever conducted operations at

Christopher’s home, and there was no testimony establishing that Christopher was

part of the larger conspiracy. M oreover, the government’s decision to search

Christopher’s house on only one of the three occasions it raided the property

demonstrates that it believed Christopher’s residence was at most tangential to the

methamphetamine operation. W e hold that evidence found in an entirely

unrelated residence is irrelevant to whether Anthony maintained a manufacturing

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and distribution operation, and accordingly conclude that the district court erred

in admitting such evidence against Anthony during the trial. 16

Nevertheless, this error does not lead to reversal of Anthony’s conviction

because it did not affect his substantial rights. See Fed. R. Evid. 103(a). An

error affects a defendant’s substantial right when it has a “substantial influence”

on the outcome of the trial or creates a “grave doubt” as to whether it had such

effect. United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc)

(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). W e entertain no

such doubt; as noted above, overwhelming evidence of Anthony’s guilt exists as

to C ount Eight. Thus, w e conclude the district court’s error in admitting this

evidence was harmless.

III

W e review the legality of an appellant’s sentence de novo. United States v.

Price, 75 F.3d 1440, 1446 (10th Cir. 1996). Anthony was sentenced in June 2004,

before the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005),

or its predecessor, Blakely v. W ashington, 542 U.S. 296 (2004). He argues that

his sentence is invalid under Booker because the district court relied on judge-

16
To the extent the district court concluded the evidence was admissible as
to Shelby, but not admissible as to Anthony, it should have issued a limiting
instruction to cure the inherent prejudice accompanying admission of evidence in
joint trials. See United States v. Rogers, 925 F.2d 1285, 1288 (10th Cir. 1991).

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found facts – the drug quantity attributable to him – to mandatorily enhance his

sentence under the G uidelines.

In Booker, the Supreme Court 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.” 543

U.S. at 244. In U nited States v. Gonzalez-Huerta, 403 F.3d 727 (2005) (en banc),

we identified two potential errors arising from a court’s pre-Booker sentencing of

a defendant. Non-constitutional Booker error occurs if the court “appl[ies] the

Guidelines in a mandatory fashion . . . even though the resulting sentence was

calculated solely upon facts that were admitted by the defendant, found by the

jury, or based upon a prior conviction.” 403 F.3d at 731-32. Constitutional

Booker error occurs w hen the court “rel[ies] upon judge-found facts . . . to

enhance a defendant’s sentence mandatorily.” Id. at 731. If we conclude that a

Booker error occurred, the government bears the burden of proving the error was

harmless. United States v. W aldroop, 431 F.3d 736, 743 (10th Cir. 2005).

As to the claim of constitutional Booker error, the district court found that

14,974 kilograms of marijuana were attributable to Anthony based on a

preponderance of the evidence standard, and relied on that finding to mandatorily

increase his sentence under the Guidelines. Anthony did not admit to this

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quantity, this amount was not charged in the indictment, and the jury made no

finding as to the drug quantity. Thus, constitutional Booker error occurred.

However, this error is harmless if it did not affect the substantial rights of

the accused. United States v. Lang, 405 F.3d 1060, 1064 (10th Cir. 2005). A

defendant’s substantial rights are affected if “a jury applying a reasonable doubt

standard would not have found the same material facts that a judge found by a

preponderance of the evidence.” United States v. Dazey, 403 F.3d 1147, 1175

(10th Cir. 2005). W hen overwhelming evidence is presented at the trial

supporting the judge-found facts, taking into account the inferences raised by the

jury’s verdict, the error is harmless. See United States v. Riccardi, 405 F.3d 852,

875-76 (10th Cir. 2005).

The government has sufficiently proven that there is overwhelming

evidence in the record to support the drug quantity determination found by the

district court, which corresponded to a base offense level of 36. The PSR

attributed 14,974 kilograms of marijuana to Anthony, which included: (1) 28.3

grams of methamphetamine mixture and 38.3 grams of pseudoephedrine, both of

which were recovered from his home during the July 12, 2002 search, equivalent

to 439.6 kilograms of marijuana, (2) 8.2 grams of pseudoephedrine and 1.3 grams

of pure methamphetamine seized from Christopher’s home during the December

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11, 2002 search, equivalent to 108 kilograms of marijuana, 17 (3) 36.3 grams of

pseudoephedrine, 66.3 grams of pure methamphetamine, and 7.5 grams of pure

amphetamine seized during the July 18, 2003 search, equivalent to 1,839

kilograms of marijuana, and (4) 453.6 grams of methamphetamine mixture based

on Hanna’s testimony that he purchased one pound from Anthony and Shelby,

170.1 grams of methamphetamine mixture based on Landherr’s testimony that she

purchased one ounce on six occasions, and 5.67 kilograms of methamphetamine

mixture based on Brown’s testimony, which equate to a combined marijuana

equivalent of 12,587.4 kilograms. During sentencing, the district court found that

“the probation officer relied on the most conservative estimates and testimony in

favor of the defendant when determining the amount of drugs involved.”

Anthony argues the findings are not supported in the record because Hanna,

Landherr, and Brown – whose testimony regarding Anthony’s activities

established the vast majority of the drug quantity finding – were inherently

unreliable. Thus, he contends their testimony would not have established beyond

17
Drugs found in Christopher’s house appear to have been attributed to
Anthony in calculating his drug quantity amount. Nonetheless, inclusion of that
amount did not affect Anthony’s base offense level. See U.S.S.G. § 2D1.1(c)(2).
Under § 2D1.1(c)(2), his base offense level was 36 based on a finding that he was
responsible for 14,974 kilograms of marijuana. He correctly points out that 108
kilograms of that amount related to drugs recovered from Christopher’s residence,
and thus should have been excluded. The base offense level for a drug quantity
finding of 14,866 kilograms of marijuana – w hich excludes this amount – is also
36. Therefore, this error did not affect his substantial rights.

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a reasonable doubt the drug quantity attributable to him. He is correct that these

witnesses admitted to using drugs during the time in question, and further

admitted that they were testifying pursuant to an agreement with the government.

However, there is no prohibition in this circuit on using co-conspirator statements

and the testimony of former addicts to establish the drug quantity amount, even

when those individuals are cooperating with the government. See Cook, 949 F.2d

at 296 (holding testimony of co-defendant was sufficiently reliable to establish

drug quantity because the witness was “quite familiar with [the defendant’s] drug

trafficking”). 18 M oreover, these same w itnesses presented the crucial testimony

used to convict A nthony. W e can infer from the jury’s verdict that it expressly

found these witnesses credible. In addition, the government correctly notes that

Hanna, Landherr, and Brown were reliable because their testimony was consistent

and corroborated by the physical evidence found during the searches. Thus, the

constitutional Booker error was harmless. 19

18
But see United States v. M iele, 989 F.2d 659, 667 (3d Cir. 1993)
(“Because of the questionable reliability of an addict-informant, we think it is
crucial that a district court receive with caution and scrutinize with care drug
quantity or other precise information provided by such a witness before basing a
sentencing determination on that information.”); United States v. Simmons, 964
F.2d 763, 776 (8th Cir. 1992) (rejecting drug quantity estimates by
addict-informant); United States v. Robison, 904 F.2d 365, 371-72 (6th Cir. 1990)
(same).
19
Anthony also challenges the drug quantity finding made by the district
court on the same grounds – that it w as based on unreliable witness testimony.
Because there was overwhelming evidence to support the district court’s drug
(continued...)

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 As for the non-constitutional Booker error, the government concedes that

the district court committed non-constitutional Booker error by applying the

Guidelines mandatorily. Nevertheless, we conclude that this error was also

harmless. Non-constitutional Booker error is harmless unless there is “a

reasonable probability that, under the specific facts of his case as analyzed under

the sentencing factors of 18 U.S.C. § 3553(a), the district court judge would

reasonably impose a sentence outside the Guidelines range.” United States v.

Clifton, 406 F.3d 1173, 1181 (10th Cir. 2005). Once again, the government bears

the burden of proof to show that the non-constitutional Booker error was

harmless. W aldroop, 431 F.3d at 743.

Generally, non-constitutional Booker may have affected a defendant’s

substantial rights if there is “evidence of (1) a substantial disconnect between the

§ 3553(a) factors and his sentence, and (2) the district court’s expressed

dissatisfaction with the mandatory Guidelines sentence in his case.” Id. The

government has sufficiently proven that there is no reasonable probability the

district court would have imposed a sentence outside the Guidelines range. There

is no evidence in the record that the district court expressed any dissatisfaction

with Anthony’s sentence. M oreover, there is no indication that any of the §

19
(...continued)
quantity finding, and corresponding base offense level determination, we reject
this claim.

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3553(a) factors would have led the district court to impose a different sentence.

In fact, the district court stated that it considered the “nature and circumstances”

of the defendant in formulating the appropriate sentence. M oreover, Anthony has

not identified any § 3553(a) factor that the district court may have considered in

formulating a different sentence. Accordingly, the non-constitutional Booker

error is harmless.

IV

A

The government concedes that the district court comm itted constitutional

Booker error in sentencing Shelby by relying on judge-found facts regarding the

drug quantity to mandatorily increase his sentence. See United States v.

Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005). Unlike the position it has

taken with respect to Anthony, the government concedes that this error was not

harmless, because the district court sentenced Shelby to the low end of the

Guidelines range. See United States v. Labastida-Segura, 396 F.3d 1140, 1143

(10th Cir. 2005) (holding that when the district court sentences a defendant at the

bottom of the Guidelines range it “places us in the zone of speculation and

conjecture – we simply do not know what the district court would have done after

hearing the parties”). Accordingly, as conceded, the district court comm itted

constitutional Booker error in sentencing Shelby, and this error was not harmless.

B

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 Shelby also challenges the district court’s drug quantity finding on the

ground that it failed to make particularized findings as to (1) the scope of the

criminal activity Shelby agreed to undertake regarding the conspiracy, and (2) the

total amount of drugs involved that were foreseeable to him. United States v.

Green, 175 F.3d 822, 837 (10th Cir. 1999) (holding that the district court must

make these two particularized findings when determining the proper amount of

drugs to attribute to a defendant involved in a conspiracy). W e agree. Although

the district court adopted the findings contained in the PSR, the PSR did not make

particularized determinations with respect to either of these points. W e do not

know whether, upon close examination of the evidence, the district court might

agree with Shelby that his knowledge of Anthony’s operations was limited and

decrease his sentence accordingly. Thus, upon remand, the district court should

address these questions. See United States v. M elton, 131 F.3d 1400, 1404 (10th

Cir. 1997) (remanding for resentencing when the district court failed to make the

necessary particularized findings regarding the scope of the defendant’s

participation in the conspiracy); see also United States v. Tucker, 90 F.3d 1135,

1145 (6th Cir. 1996) (same).
V

Accordingly, we A FFIR M Anthony’s conviction and sentence, and

REVERSE Shelby’s sentence and REM AND for resentencing.

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