[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 6, 2009
No. 08-12867 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00007-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DANIEL KENNEDY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 6, 2009)
Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
James Daniel Kennedy appeals his 210-month sentence for possession of a
listed chemical -- pseudoephedrine -- with intent to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(c)(1). No reversible error has
been shown; we affirm.
Kennedy pleaded guilty to possessing 2,709 pseudoephedrine tablets. In
determining the quantity of drugs attributable to Kennedy, the district court
included amounts of methamphetamine and methamphetamine mixture from
dismissed counts of the indictment. On appeal, Kennedy argues that the district
court calculated incorrectly his base offense level1 by (1) including quantities of
drugs not part of the count of conviction, and (2) estimating inaccurately the gram
weight of actual pseudoephedrine contained in the tablets.
We conclude that the district court committed no error in attributing to
Kennedy drug amounts that were part of the indictment but later were dismissed as
part of the plea agreement. Under the advisory guidelines, the district court may
consider all relevant conduct -- not just charged conduct -- in calculating a
defendant’s offense level. United States v. Hamaker, 455 F.3d 1316, 1336 (11th
Cir. 2006). And we have determined that relevant conduct includes quantities of
1
The district court calculated Kennedy’s base offense level pursuant to U.S.S.G. § 2D1.1,
based on a cross-reference in U.S.S.G. § 2D1.11 -- the guideline for possessing a listed chemical
-- because his offense involved the unlawful manufacture of methamphetamine and resulted in a
greater offense level. See U.S.S.G. § 2D1.11(c)(1).
2
drugs that are the subject of dismissed counts of the indictment. United States v.
Alston, 895 F.2d 1362, 1371-72 (11th Cir. 1990). Relevant conduct must be
proved by a preponderance of the evidence; but here, Kennedy does not dispute
that he sold methamphetamine to law enforcement officers or that law enforcement
officers seized methamphetamine from his truck upon arresting him. See United
States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (alleged relevant conduct
is deemed to be true when a defendant does not challenge the accuracy of the
allegations).2
About Kennedy’s challenge to the pseudoephedrine weight calculation, he
did not challenge the method of calculation used by the probation officer in the
district court. He also fails to specify how the probation officer erred when
approximating the actual weight of pseudoephedrine: he says only that the
probation officer should have used a scientific process instead of an estimate. We
discern no error in the probation officer’s method of calculation. The probation
officer based his calculation of the amount of actual pseudoephedrine contained in
the tablets on a fair and conservative estimate of a minimum potency of 30
milligrams a tablet, even though many tablets had a higher strength; he then
2
To the extent that Kennedy argues that relevant conduct and drug quantity must be
proved beyond a reasonable doubt after United States v. Booker, 125 S.Ct. 738 (2005), we reject
his argument. Even after Booker, the preponderance-of-the-evidence standard applies to
guidelines calculations. See Hamaker, 455 F.3d at 1336.
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multiplied the net weight of the tablets by the potency percentage to calculate the
total amount of pseudoephedrine. See United States v. Rodriguez, 398 F.3d 1291,
1296 (11th Cir. 2005) (sentencing for a drug offense may be based on fair,
accurate, and conservative estimates of the quantity of drugs attributable to a
defendant).
About the weight, Kennedy conceded at sentencing that the facts in the
presentence investigation report were accurate; he did not object to the weights of
the drugs. Thus, he is precluded from now challenging the drug quantity attributed
to him. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (defendant is
precluded from challenging district court’s factual findings when he fails to object
to the court’s findings).3
Kennedy also challenges the enhancement to his sentence pursuant to
U.S.S.G. § 2D1.1(b)(1) for possessing a firearm during the commission of his
offense; he contends that the guns discovered in his truck at his arrest bore no
connection to the drugs. “For sentencing purposes, possession of a firearm
involves a factual finding, which we review for clear error.” United States v.
3
Also, Kennedy’s statements that the drug weights were correct invited the district court
to rely on the drug weight calculations in determining his base offense level. So, even if the
probation officer made a computational error, under the doctrine of invited error, we are
precluded from reversing any district court error about drug weight calculation. See United
States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (“Where invited error exists, it precludes a
court from invoking the plain error rule and reversing”) (citation omitted).
4
Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006).
If a defendant possessed a dangerous weapon during a drug trafficking
offense, a two-level increase is warranted. U.S.S.G. § 2D1.1(b)(1). “The
adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,
comment. (n.3). The government has the burden of demonstrating the proximity of
the weapon to the site of the charged offense by preponderance of the evidence.
United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001). If the government
meets its burden, the burden shifts to the defendant to demonstrate that a
connection between the weapon and the offense clearly was improbable. Id.
Here, the district court properly applied the firearm enhancement to
Kennedy’s sentence. The government showed -- and Kennedy did not dispute --
that three guns and a functional improvised explosive device (“pipe bomb”) were
present in his truck where the pertinent pseudoephedrine tablets were discovered
during a routine traffic stop and vehicle inventory search. The government was not
required to do more to prove that the weapons were used to aid in the offense.
See Audain, 254 F.3d at 1289. And Kennedy presented no evidence to meet his
burden of demonstrating that a connection between the firearms and the drugs
clearly was improbable.
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Kennedy argues that the district court’s alleged errors in calculating the
guidelines range rendered his sentence -- at the top of the advisory guidelines range
-- unreasonable. When reviewing a sentence, we must, in pertinent part, ensure
that no procedural error occurred, such as the district court’s improperly
calculating the guidelines, basing a sentence on clearly erroneous facts, failing to
consider the 18 U.S.C. § 3553(a) factors, or failing to explain a variation from the
guidelines. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).
Kennedy bases his reasonableness challenge only on the alleged guidelines
calculation errors; and we already have concluded that these arguments have no
merit. The court treated the guidelines as advisory and concluded that a sentence
at the high end of the range was warranted because of Kennedy’s disregard for the
drug laws and the seriousness of his offense, including the pipe bomb in his truck
when he was arrested. The district court clearly considered the facts of the case
and the section 3553(a) factors and committed no procedural error. Kennedy has
not carried his burden of showing that his sentence was unreasonable. United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
AFFIRMED.
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