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that this opinion should not be published and is not precedent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