United States v. Lauder

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 8, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 04-2120
WESTON CHARLES LAUDER III,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CR-02-2262-JP)

Thomas L. Wright, El Paso, Texas (Manuel Barraza, El Paso, Texas, with him on
the briefs), for Defendant-Appellant.

Robert D. Kimball, Assistant United States Attorney, (David C. Iglesias, United
States Attorney, and Laura Fashing, Assistant United States Attorney ,
Albuquerque, New Mexico, on the brief), Albuquerque, New Mexico, for
Plaintiff-Appellee.

Before O’BRIEN , McCONNELL , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

In May 2004, a jury in the United States District Court for the District of

New Mexico convicted Weston Charles Lauder III on the following four counts
related to the possession and distribution of illegal drugs: Conspiracy under 21

U.S.C. § 846 to violate 21 U.S.C. § 841(a)(1) and (b)(1)(A)–(B) (Count I);

maintaining a building for the manufacture and distribution of cocaine base in

violation of 21 U.S.C. § 856(a)(1) (Count II); and possession with intent to

distribute 50 grams or more of cocaine base (Count III) and 500 grams or more of

powder cocaine (Count IV) within 1,000 feet of a school under 21 U.S.C.

§ 860(a).

On appeal, Lauder alleges that (1) the evidence was insufficient to support

the jury’s verdict, (2) a new trial is needed due to an alleged violation of Lauder’s

Fifth Amendment right to remain silent, (3) the district court erred in admitting

fingerprint evidence, and (4) the district court erred in the amount of drugs it

attributed to Lauder for sentencing purposes, which error violated Lauder’s Sixth

Amendment rights under United States v. Booker, —U.S. —, 125 S. Ct. 738

(2005).

For the reasons set forth below, we AFFIRM the district court’s order of

conviction and the resulting sentence.

I. BACKGROUND

On September 16, 2002, acting pursuant to a search warrant based on

information supplied by a confidential informant, a Lea County Drug Task Force

conducted a search of a residence in Hobbs, New Mexico. According to the

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warrant, the house belonged to Kena LaShawn Wright, but somebody referred to

as “BL” also resided there. Upon arrival, the officers knocked on the door and

announced they had a warrant to search the house. Although the officers heard

footsteps running through the house, nobody answered the door. The officers

then kicked open the door, entered the house, and found Weston Charles Lauder

III lying face down and spread-eagle in the kitchen area. Nobody else was in the

house.

During the search, the officers found large quantities of cocaine, crack, and

money. In the master bedroom, for example, the search revealed approximately

124 grams of powder cocaine and $5,630 in the pocket of a brown sweatshirt that

was hanging in the closet. There was also a blue jacket found in the closet that

contained approximately 49.2 grams of crack cocaine and negligible amounts of

marijuana in its hood. A dresser drawer contained six grams of crack cocaine and

$295. The officers also retrieved a duffle bag containing men’s clothing and a

baggage claim tag in Lauder’s name.

The officers searched the backyard and found, buried in the ground,

$12,000 in cash and, separately, approximately 745 grams of powder cocaine that

was wrapped in two plastic bags. The officers also searched Lauder’s person. In

Lauder’s wallet they found several pieces of paper that contained the initials of

numerous people written next to money amounts. According to the testimony of

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the arresting officer, the papers were consistent with drug ledgers that are

typically kept by people involved in drug distribution. Later witnesses, in fact,

matched the initials found in Lauder’s wallet to known drug dealers.

Following the search, the Task Force contacted the Drug Enforcement

Agency and referred the case to the federal government for prosecution. Lauder

was transferred to the DEA’s custody in Las Cruces, New Mexico, whereupon a

DEA agent recorded Lauder’s fingerprints using a digital infrared scanner,

referred to as the “live-skin method,” which, according to testimony given at trial,

operates essentially like a copy machine. Lab analysis by the DEA determined

that Lauder’s digitally-obtained fingerprint matched a latent fingerprint that was

found on one of the plastic bags containing cocaine and buried in the backyard.

At trial, the government introduced two cooperating witnesses that testified

about Lauder’s drug activities. The first, Soleil Sligh, stated Lauder’s nickname

was “BL” (“Big Little”) or “Little Man,” and that she began buying crack from

him in approximately February 2002. Sligh testified that on separate occasions

she purchased a total of approximately 425 grams of crack cocaine and 255 grams

of powder cocaine from Lauder, which she in turn resold to drug users. She also

helped Lauder sell an additional 255 grams of crack cocaine, and that on another

occasion Lauder transported an additional 255 grams of crack cocaine from

California to New Mexico. Sligh then testified that on at least one occasion she

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witnessed Lauder “cook” powder cocaine into crack while he was staying at Kena

Wright’s house and that many of the initials on the papers found in Lauder’s

wallet corresponded to known drug dealers in Hobbs. Finally, she stated that the

brown sweatshirt found in the bedroom belonged to Lauder and that “he keeps his

money in [the sweatshirt] and sometimes his dope.” Aple. Supp. App. II, at 213.

The second cooperating witness was Idella Royals, Kena Wright’s cousin.

Royals testified that “once or twice” she sold crack cocaine she had purchased

from Lauder. She also described an incident in which Lauder, after returning to

New Mexico from California, walked into the kitchen, pulled up his shirt, and

unstrapped a long package that was taped to his waist. Royals testified that the

package, which was wrapped in plastic, “appear[ed] to be Coke” and “looked like

powder.” Id. at 265, 268. Furthermore, although she never witnessed Lauder sell

drugs to anybody other than herself and Kena Wright, Royals testified that

numerous known drug dealers came to the house to see Lauder, and she suspected

they were buying cocaine. And, like Sligh, Royals recognized the brown

sweatshirt as belonging to Lauder and referred to him as “BL.”

Following Lauder’s conviction by a jury, the district court adopted the

factual findings in the pre-sentence report. In calculating drug amounts, the PSR

added together the illegal drugs found during the search of the house with the

additional drugs that the cooperating witnesses had purchased from Lauder. The

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PSR also noted that the amount of seized cash ($17,630) was consistent with the

sale of an additional 176 grams of powder cocaine. The court then applied the

Drug Equivalency Tables in USSG § 2D1.1, finding that the total amounts of

powder cocaine, crack cocaine, and marijuana involved in the conspiracy was the

equivalent of 10,346 kilograms of marijuana. This amount resulted in a base

offense level of 38 under the sentencing guidelines. No enhancements were

added. With a Category I criminal history, the applicable guideline range was

235–293 months. The district court sentenced Lauder to 240 months

imprisonment.

II. DISCUSSION

Lauder raises four separate issues on appeal. We first address the issues

going to the merits of the conviction, and then turn to Lauder’s sentence.

A. Sufficiency of the Evidence

Sufficiency of the evidence to support a jury’s verdict is a legal issue we

review de novo. United States v. Norman, 388 F.3d 1337, 1340 (10th Cir. 2004).

We review the evidence in the light most favorable to the government to

determine whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Reece, 86

F.3d 994, 995–96 (10th Cir. 1996) (quotation omitted). Furthermore, we do not

“question the jury’s credibility determinations or its conclusions about the weight

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of the evidence.” United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th

Cir. 1999).

We note initially that although Lauder was convicted on four counts, he

only challenges the sufficiency of the evidence tying him to the drugs and his

intent to distribute them. He does not challenge the existence of a conspiracy

under 21 U.S.C. § 846, the maintenance of a building for the manufacture of

crack cocaine under 21 U.S.C. § 856(a), or that drug distribution, if established,

occurred within 1,000 feet of a school under 21 U.S.C. § 860(a). 1 In reviewing

the evidence, therefore, we focus our attention on the sufficiency of the evidence

with respect to 21 U.S.C. § 841(a)(1), possession with intent to distribute crack

and powder cocaine.

To support a conviction for possession of illegal drugs with intent to

distribute under 21 U.S.C. § 841(a)(1), the government is required to prove

beyond a reasonable doubt that

(1) the defendant knowingly possessed the illegal drugs, and

(2) the defendant possessed the drugs with the specific intent to
distribute them.

Reece, 86 F.3d at 996. Possession may be either actual or constructive.

“[C]onstructive possession exists where the defendant has the power to exercise

1
It is undisputed that Kena Wright’s house where Lauder was staying is
located approximately 200 feet from a school.

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control or dominion over the [contraband].” United States v. Lopez, 372 F.3d

1207, 1212 (10th Cir. 2004). Control or dominion over the premises where the

contraband is found is a factor, but not a requirement, for finding constructive

possession of the contraband itself. Id. at 1213. Where, however, the defendant

has exclusive possession of the premises, dominion, ownership, and control are

properly inferred. United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994). In

joint occupancy cases where possession is not clear, such as where the drugs may

be attributed to more than one person, we require some nexus, link, or other

connection between the defendant and the contraband. Id.

As noted, the core of Lauder’s argument is that the government failed to

prove a nexus between him and the drugs recovered during the raid. He points

out, for example, he was “a transient” and “living out of a travel bag” at the time

of the raid, thus suggesting he cannot be held responsible for the contents of a

house that he did not own. Aplt. Br. at 17. But Lauder ignores substantial

evidence linking him to the crime scene, and, in any event, our case law shows

that regardless of who owns or rents the house, a conviction for constructive

possession is properly sustained where the evidence “support[s] at least a

plausible inference that the defendant had knowledge of and access to the . . .

contraband.” Norman, 388 F.3d at 1341 (quotation omitted). This standard is

easily met here.

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 There is abundant evidence that Lauder had knowledge of the illegal drugs.

To begin, the brown sweatshirt found hanging in the bedroom closet was

connected to Lauder by the testimony of the two cooperating witnesses. Both

witnesses testified they had seen Lauder wear the sweatshirt, and one of the

witnesses, Soleil Sligh, even stated that Lauder commonly used the sweatshirt to

keep money and drugs. The fact that this sweatshirt was found hanging in the

same closet as other clothing containing crack cocaine, and in the same room as

the dresser drawer containing crack cocaine, is additional evidence supporting an

inference that Lauder had knowledge of those drugs as well. Regarding the

cocaine buried in the backyard, the presence of Lauder’s fingerprint on the plastic

bag offered the jury compelling evidence that Lauder had knowledge of the bag’s

contents. Idella Royals’ testimony that she saw Lauder unstrap a long package

that “appear[ed] to be Coke” and “looked like powder” further bolstered this

evidence. A reasonable jury could conclude the package spoken of by Royals was

the same one found buried in the backyard.

As to access, Lauder was the only person in the house when the Task Force

conducted its raid. This fact, although certainly not determinative in a joint

occupancy case such as this, supports an inference that Lauder had access to the

contents of the house and its environs, especially where Wright was not home at

the time of the raid. Additionally, Royals, who was also living in the house at the

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time, testified that Lauder and Wright were sharing the master bedroom. This

was corroborated by an officer’s testimony that men’s clothing was strewn

throughout the master bedroom and that there was a duffle bag containing a

baggage claim tag in Lauder’s name. Lauder, in fact, claimed ownership of the

bag and its contents. Finally, a confidential informant tipped the Task Force that

someone referred to as “BL” occupied the house. Taken together, these facts

show that Lauder was living in Kena Wright’s house at the time of the raid, thus

supporting an inference that he had access to the contents of the house.

Lastly, as required by § 841(a), the evidence was sufficient to show that

Lauder possessed the drugs with the specific intent to distribute them. Testimony

by Sligh and Royals was particularly relevant in this regard. Sligh testified, for

example, that she repeatedly purchased crack and powder cocaine from Lauder

which she then resold to drug users. She also stated she witnessed Lauder sell

drugs himself. Royals testified she bought crack cocaine from Lauder, and,

additionally, that numerous known drug dealers came to the house to see Lauder,

presumably to purchase drugs. The Task Force also recovered large sums of cash

and drugs, both of which is indicative of drug distribution. See Jenkins, 175 F.3d

at 1216–17. Of the approximately $17,000 in cash recovered during the raid,

most was in $20 bill denominations, the standard street price of one crack rock in

Hobbs, New Mexico. Finally, the jury also heard testimony that drug dealers

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typically keep a drug ledger such as the one found in Lauder’s wallet. To cement

the issue, Sligh’s testimony linked the initials written on those ledgers to known

drug dealers.

In sum, viewed in the light most favorable to the government, a reasonable

jury could conclude that the evidence, taken together with the reasonable

inferences therefrom, was sufficient to prove that Lauder knowingly possessed

with the intent to distribute powder and crack cocaine. We therefore deny Lauder

any relief on this ground.

B. Post-Arrest Silence

Lauder next contends the government violated his Fifth Amendment right to

remain silent by introducing evidence of his post-arrest silence. Lauder assigns

error to the following statements made by a DEA agent testifying for the

government:

Q: Now, with regard to the Defendant himself, what steps did you take
with respect to him on September 17th?

A: I put him in the back seat of [the car]. . . . And I remember that I asked
him his rights, and asked him if he wanted to talk to us on the way
back to Las Cruces, and he advised he did not.

Aple. Supp. App. II, at 312–13 (emphasis added).

Lauder’s counsel immediately objected and moved for a mistrial, or in the

alternative, a curative instruction. The district court judge, declining to grant a

mistrial, issued the following curative instruction:

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 Ladies and gentlemen, you should disregard the agent’s statement
with regard to the Defendant’s exercise of his constitutional right to
remain silent. As most of you know who have watched TV in the last
two decades, the Fifth Amendment of the United States Constitution
guarantees the Defendant the right to remain silent and to request an
attorney if he is going to be questioned. You should not infer from
the Defendant’s refusal to talk to the officers anything at all about
his guilt or anything with regard to the evidence in this case.

Id. at 315–36.

We have previously stated that “[t]he general rule of law is that once a

defendant invokes his right to remain silent, it is impermissible for the

prosecution to refer to any Fifth Amendment rights which defendant exercised.”

United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991) (citing Griffin v.

California, 380 U.S. 609, 615 (1965)). Although there are narrow exceptions to

the general rule, such as the use of silence for impeachment in certain

circumstances, id., those exceptions do not apply here. Here, Lauder decided to

invoke his right to remain silent, and the agent impermissibly made reference to

that decision. Indeed, on appeal the government concedes that the agent’s

reference to Lauder’s post-arrest silence was improper.

But this does not end our analysis. Constitutional violations such as the

one at issue here are subject to the harmless error analysis outlined in Chapman v.

California, 386 U.S. 18, 24 (1967), under which “the beneficiary of a

constitutional error [must] prove beyond a reasonable doubt that the error

complained of [was harmless].” In United States v. Massey, 687 F.2d 1348 (10th

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Cir. 1982), we set forth a five-factor test to be used in determining whether

comments regarding the defendant’s silence are harmless. Namely, we consider

(1) the use to which the prosecution puts the silence, (2) who elected to pursue

the line of questioning, (3) the quantum of other evidence indicative of guilt, (4)

the intensity and frequency of the reference, and (5) the availability to the trial

judge of an opportunity to grant a motion for mistrial or to give curative

instructions. Id. at 1353 (citations and quotations omitted).

The government argues that the agent’s reference to Lauder’s post-arrest

silence was harmless beyond a reasonable doubt, and we agree. The agent’s

statement was not used by the prosecution as substantive evidence of guilt.

Instead, the agent, unprovoked by the prosecution, blurted out the statement in a

manner that did not advance the government’s case in any particular way.

Burson, 952 F.2d at 1201 (finding the error harmless in part because reference to

pre-arrest silence was “an afterthought” of testifying agent and had “little

probative value”); United States v. Brooks, 940 F.2d 598, 601 (10th Cir. 1991) (to

the same effect). With respect to the intensity and frequency of the improper

reference, here we are dealing with one off-the-cuff comment that was not

repeated or highlighted at any other point in the trial. This situation, therefore,

stands in obvious contrast to those cases where the prosecution makes frequent

use of the defendant’s post-arrest silence by, for example, lengthy cross-

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examination or arguments in closing that the defendant’s silence is evidence of

his guilt. Cf. Griffin, 380 U.S. at 610–11 (error not harmless); Massey, 687 F.2d

at 1352 (same); see also Burson, 952 F.2d at 1201 (error harmless in part because

“[t]he prosecution made no reference to [defendant’s] silence in closing argument

or otherwise”). Additionally, as noted above, there was ample evidence of

Lauder’s guilt without the agent’s comment. And finally, the district court

immediately gave a curative instruction. See Battenfield v. Gibson, 236 F.3d

1215, 1225 (10th Cir. 2001) (error harmless in part because court gave curative

instruction).

Thus, taking the Massey factors together, we hold that the error in this case

was harmless beyond a reasonable doubt. Lauder is therefore not entitled to a

new trial on this ground.

C. Fingerprint Evidence

Lauder’s third argument is that the district court erred in admitting

fingerprint evidence tying Lauder to the cocaine buried in the backyard. Prior to

trial, the government filed a motion in limine regarding the admissibility of

fingerprint evidence it intended to use at trial. In the motion the government

outlined the credentials of its fingerprint expert, Anna Zadow, and asserted her

expert testimony was admissible under Federal Rules of Evidence 702 and 703.

Lauder did not respond to the motion and the court did not issue a ruling prior to

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trial. At trial, Lauder’s counsel stated he had no objections to Zadow’s expert

qualifications, and the district court made a finding under Rule 702 that Zadow

was qualified to render an expert opinion. Lauder objected, however, when the

government sought to introduce evidence that a latent fingerprint found on one of

the plastic bags containing cocaine matched Lauder’s “known” fingerprint. 2

As justification for his objection, Lauder cited Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), the seminal Supreme Court case

governing the admissibility of expert testimony under the Federal Rules of

Evidence. Specifically, Lauder objected to the admission of fingerprint cards

containing Lauder’s known prints. The cards were created by technology referred

to at trial as the “live-skin method.” 3 In essence, the live-skin method entails the

use of a machine that records fingerprints much as a copy machine duplicates

paper copies. The expert, Ms. Zadow, described it at trial:

2
A “latent” fingerprint is a print left on evidence at a crime scene that
cannot be seen by the naked eye and must undergo a process of development in
order to be examined. See Fern L. Kletter, Admissibility and Weight of
Fingerprint Evidence Obtained or Visualized by Chemical, Laser, and Digitally
Enhanced Imaging Processes, 110 A.L.R.5th 213, at § 2[a] (2005). A “known” or
“exemplar” print is a reproduction of a known subject, usually taken by law
enforcement after the subject is in custody. The reproduction of a known print
can be done in several ways, including the traditional ink method or the digital
method at issue in this case. Id.
3
The parties’ briefs and the trial transcript refer to the “live-skin method.”
We are aware, however, that many law enforcement agencies use “LiveScan,” an
electronic fingerprinting machine similar to the one used in this case. For
purposes of this discussion, we will adopt the term used by the parties.

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 [It’s a] digitally-captured system. It’s what I will term live skin . . .
because what it is, it’s a plate, it’s like a glass plate, and it has
technology inside of it that when your finger is placed on a glass
without ink, it will capture that friction ridged skin and it will appear
to have black ink on it when you look on the computer monitor. . . .
[A]fter you rolled your ten fingers, those are then printed out using a
printer, a computer printer, and put on an 8 by 8 fingerprint card.

Aple. Supp. App. III, at 382–83.

The government first attempted to have the cards admitted into evidence

during the testimony of the DEA agent who took Lauder’s fingerprints. The

district court did not rule on the cards’ admissibility at that time, telling the

government that “[y]our expert can determine admission.” Aple. Supp. App. II, at

326. Zadow then took the stand and described the processes she followed in

matching Lauder’s known print to the latent print found on the plastic bag. On

voir dire examination, Lauder attempted to show that the live-skin method

involved new technology that lacked reliability. Zadow admitted, for example,

she was not aware of any testing done by a scientific body. Nor did she know its

potential error rate, whether it has been accepted by the scientific community, or

whether it had been subjected to peer review. However, Zadow stated the live-

skin method has been in use for approximately eight years and is routinely used

by the FBI, DEA, United States Marshals Service, and numerous local police

departments. Other than cross-examination, Lauder’s counsel made no proffer of

evidence contesting the expert’s methodology or the reliability of the equipment

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used to capture the print. Following voir dire, the district court admitted the live-

skin fingerprint cards.

The Supreme Court, through a trilogy of cases beginning in 1993, has held

that federal district courts must perform a gatekeeper role under Federal Rule of

Evidence 702 in ensuring that scientific testimony or evidence is both relevant

and reliable. 4 Daubert, 509 U.S. at 592–93; General Electric Co. v. Joiner, 522

U.S. 136, 142 (1997). In Kumho Tire Company, LTD. v. Carmichael, 526 U.S.

137, 141 (1999), the Court made clear that this gatekeeper role applies not only to

scientific knowledge, but to “technical” and “other specialized” knowledge as

well. Applying Daubert in this circuit, we have held that “[a] natural requirement

of the gatekeeper function is the creation of a sufficiently developed record in

order to allow a determination of whether the district court properly applied the

relevant law,” and in the absence of specific findings in the record, “we must

conclude that the court abused its discretion in admitting such testimony.” Dodge

v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003) (citations and quotations

4
To assist in the assessment of reliability, the Court listed four
nonexclusive factors that the district courts may consider: (1) whether the opinion
at issue is susceptible to testing and has been subjected to such testing; (2)
whether the opinion has been subjected to peer review; (3) whether there is a
known or potential rate of error associated with the methodology and whether
there are standards controlling the technique’s operation; and (4) whether the
theory has been accepted by the scientific community. Daubert, 509 U.S. at
593–94.

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omitted).

According to Lauder, the district court was required to make factual

findings regarding the reliability of the live-skin method, which it did not do.

Lauder argues further that the court’s failure to make such findings amounts to

reversible error under Daubert. If, in fact, Daubert established the applicable

guideposts to this case, then Lauder’s argument would have some appeal. See

Dodge, 328 F.3d at 1229 (reversing and remanding for a new trial because district

court failed to perform its gatekeeper role). In our view, however, Lauder’s

reliance on Daubert is misplaced. Properly framed, the admissibility of the

fingerprint cards is governed by the evidentiary rules regarding foundation and

authentication, not Daubert.

The applicability of Daubert is a question of law that we review de novo.

Norris v. Baxter Healthcare Corp., 397 F.3d 878, 883 (10th Cir. 2005). By its

terms, the Daubert opinion applies only to the qualifications of an expert and the

methodology or reasoning used to render an expert opinion. Daubert, 509 U.S. at

592–93 (noting that trial judge must undertake “a preliminary assessment of

whether the reasoning or methodology underlying the testimony is scientifically

valid and of whether that reasoning or methodology properly can be applied to the

facts in issue”). Daubert generally does not, however, regulate the underlying

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facts or data that an expert relies on when forming her opinion. 5 Cf. Fed. R. Evid.

703 (“The facts or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made known to the expert at or

before the hearing.”).

In this case, Lauder does not challenge Zadow’s qualifications as a

fingerprint identification expert or the methodology she used in matching

Lauder’s live-skin print to the latent print found on the plastic bag. These

matters, of course, if challenged by Lauder, could fall within the Daubert

framework. See, e.g., United States v. Crisp, 324 F.3d 261, 266–70 (4th Cir.

2003) (analyzing fingerprint identification methodology under Daubert’s standard

for reliability and relevance); United States v. Havvard, 260 F.3d 597, 601 (7th

Cir. 2001) (same). Instead, Lauder challenges only the evidence-gathering

5
Federal Rule of Evidence 702, which Daubert interprets, is not to the
contrary. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.

As noted in the Advisory Committee Notes to the 2000 Amendments,
subpart (1)’s reference to “sufficient facts or data” calls for a quantitative rather
than qualitative analysis.

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equipment used to record his known print, and this critical distinction renders

Daubert inapplicable. Whether the live-skin method generated an accurate image

is an authentication question unaffected by Daubert. See Kletter, supra note 2, at

§ 2[a]. 6 The following thought experiment is illustrative: Suppose an expert

relies on photographs taken by a new digital camera in forming her opinion. A

district court would not be required to perform a Daubert analysis as to whether

the photographs accurately reflected the subject matter depicted, even though

digital technology is relatively new as compared to a traditional film camera.

Absent some specific objection to the technology underlying the digital

equipment, a court is not required to take testimony as to how the equipment

works. If the party opposing the exhibit has doubts as to whether the matter in

question is what its proponent claims, the proper objection would arise under Rule

6
“Whether a particular fingerprint device or machine generates an accurate
fingerprint image involves an inquiry as to whether there is sufficient evidence to
authenticate the accuracy of the image and the reliability of the machine.
Authentication or identification is an aspect of relevancy that is another condition
precedent to admissibility. The requirement of authentication is satisfied by
evidence sufficient to support a finding that the matter in question is what its
proponent claims. Fed. R. Evid. 901(a). Although authentication of pictures or
images most often is established through eyewitness testimony that the picture
accurately depicts the scene or expert testimony that the picture was generated by
a reliable imaging process, Fed. R. Evid. 901(b)(4) provides that authentication
may be established by internal patterns or other distinctive characteristics, taken
in conjunction with the circumstances. The characteristics of the offered item
itself, considered in light of the circumstances, authenticates the item.” (citation
omitted)

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901, not Rule 702/Daubert. This is not to say, in the right case, the technology

underlying the data collection equipment might be sufficiently cast into doubt to

require a Daubert hearing. But every case involving equipment—whether it be

computers, cameras, or speed guns—does not automatically require a Daubert

hearing regarding the physics behind the operation of the machine.

The question we must answer, then, is whether the government laid a

sufficient foundation for the fingerprint cards under Rule 901, a question we

review for abuse of discretion. 7 United States v. Hernandez-Herrera, 952 F.2d

342, 343 (10th Cir. 1991). The authenticity of a fingerprint card may be inferred

from circumstantial evidence adduced at trial. Id. at 344. Under the facts of this

case, we have no difficulty in holding that the government presented sufficient

circumstantial evidence that the fingerprint cards accurately reflected Lauder’s

prints, and therefore “[a]ny possible lack of proof connecting [the fingerprint

card] with the defendant was a matter for the jury to consider.” Id. at 345

(citations omitted).

7
Even though Lauder does not argue Rule 901 on appeal, we exercise our
discretion to answer this question because, as discussed, the admissibility of the
fingerprint cards, properly framed, falls within the Rule 901 framework and not
Daubert. Furthermore, we note that Lauder’s first objection at trial appears to
have been on foundation grounds, and only later did he invoke Daubert. See
Aple. App. Supp. II, at 325 (when asked to give a reason for objection to the
fingerprint cards, replying that “I [don’t] think there is sufficient basis for . . .
admission of this item”). Thus, this issue was sufficiently preserved for our
review.

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 The DEA agent who took Lauder’s fingerprints testified at trial that he

created the fingerprint cards using the live-skin device, and that the device

required him to type his name as the agent taking the fingerprints. The agent then

submitted the fingerprint cards to the DEA lab in Dallas, Texas, and asked that

they be compared to any fingerprints that might have been found as a result of the

Task Force’s raid. He also testified the live-skin device was functioning properly

during the time in question and “the machine checks itself and there’s certain

qualitites that every print roll has to have for the computer program to accept that

print.” Aple. Supp. App. II, at 324. In addition to the agent’s testimony, Zadow

stated that when she received the fingerprint cards, she put her initials and case

number on them, and at trial she recognized the cards as the ones she used to

perform a comparison to the latent print found on the plastic bag using customary

processes. In response to voir dire, she also stated that potential smudges on the

glass plate would not undermine the ability of the machine to record an accurate

print.

Our conclusion is bolstered by other courts that have considered this

question. The Fourth Circuit, for example, has held that fingerprint cards can be

authenticated under Rule 901(b)(4)’s “distinctive characteristics” language, which

allows authentication by reference to “internal patterns, or other distinctive

characteristics, taken in conjunction with the circumstances.” United States v.

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Patterson, 277 F.3d 709, 713–14 (4th Cir. 2002). In Patterson, the Fourth Circuit

considered a case with facts strikingly similar to the case at bar. There, the

defendant alleged that the district court erred in admitting fingerprint cards

produced by a machine called a Digital Biometrics Tenprinter. Like the live-skin

device, the Tenprinter used a laser scanner to produce a digital image of the

subject’s fingerprints. At trial, the government’s expert testified that one of the

defendant’s prints generated by the Tenprinter matched a print recovered from a

bag containing crack cocaine at the crime scene. Id. at 712. In discussing

whether the government had laid a sufficient foundation for admission of the

fingerprint cards, the court looked to case law applying Rule 901 to photographic

evidence. The court stated that even though the government witness could not

explain how the machine worked or verify that the fingerprints were accurately

rendered on the Tenprinter image, the fingerprints cards were nevertheless

admissible:

An adequate foundation was provided . . . by “internal patterns[ ] or
other distinctive characteristics, taken in conjunction with
circumstances.” Fed. R. Evid. 901(b)(4). Specifically, the testimony
that one of the fingerprints recorded by the Tenprinter matched the
fingerprint recovered from the drug container, if credited by the jury,
provided compelling evidence that the Tenprinter reliably imaged
Patterson’s fingers; the alternative—that the machine generated an
inaccurate fingerprint image that happened to be identical to a
fingerprint recovered by a different person using a different process
in a different location—is simply implausible. See People v. Webb, 6
Cal. 4th 494, 24 Cal. Rptr. 2d 779, 862 P.2d 779, 798 (Cal. 1993) (en
banc). Accordingly, the introduction of this evidence provides no

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 basis for relief.

Id. at 713–14.

We agree with this reasoning and hold that the district court did not abuse

its discretion in admitting the fingerprint cards into evidence. Trial testimony by

the DEA agent and the expert, Zadow, provided evidence that Lauder’s known

fingerprint was properly recorded, that the live-skin method functioned properly

when it recorded Lauder’s print, and that the chain of custody was maintained.

To the extent this testimony was still doubtful in authenticating the fingerprint

cards—and we do not hold that it was—the fact that the known print was matched

to a print taken from the crime scene is compelling evidence the cards were what

its proponent claimed. Fed. R. Evid. 901(a) and (b)(4).

D. Sentencing Issues

Lastly, Lauder challenges two aspects of the district court’s sentencing

decision. First, he alleges the district court erred in the amount of illegal drugs it

attributed to Lauder for sentencing purposes. Second, he argues his sentence

violates the Sixth Amendment as recently interpreted by United States v. Booker,

—U.S. —, 125 S. Ct. 738 (2005).

1. Drug amount attributable to Lauder

At sentencing, the district court used the Drug Equivalency Tables in

USSG § 2D1.1 to determine the amount of drugs involved in the drug distribution

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conspiracy. Adhering to findings in the PSR, the court concluded that the

conspiracy entailed 10,346 kilograms of marijuana, all of which was attributed to

Lauder for sentencing purposes. According to Lauder, he should have only been

held responsible for the amount of cocaine buried in the backyard (745 grams)

because “none of the other drugs found in this case have a nexus, link, or

connection to Mr. Lauder.” Aplt. Br. at 20.

We review a sentencing court’s determination of the quantity of drugs

attributable to a defendant for clear error. United States v. Morales, 108 F.3d

1213, 1225 (10th Cir. 1997). USSG § 1B1.3(a), which deals with relevant

conduct for sentencing purposes, states that

(1)(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant;
and

(B) in the case of a jointly undertaken criminal activity . . . , all
reasonably foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity [are relevant conduct for
sentencing purposes].

In a controlled substances case, a defendant is “accountable for all quantities of

contraband with which he was directly involved and, in the case of a jointly

undertaken criminal activity, all reasonably foreseeable quantities of contraband

that were within the scope of the criminal activity that he jointly undertook.”

USSG § 1B1.3 comment. (n.2) (emphasis added). The government must prove the

amount of drugs attributable to each defendant by a preponderance of the

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evidence. Morales, 108 F.3d at 1226.

As demonstrated by our discussion above regarding the sufficiency of the

evidence, the district court did not clearly err in finding that Lauder was either

“directly involved” with the drugs attributed to him, or, at the least, that the

amounts were “reasonably foreseeable quantities . . . that were within the scope of

criminal activity jointly under[taken].” USSG § 1B1.3 comment. (n.2).

Furthermore, in calculating drug amounts, the district court followed the

procedure outlined in § 2D1.1 of the sentencing guidelines, including the

directive to “approximate the quantity” where the amount of drugs seized does not

reflect the scale of the offense. USSG § 2D1.1 comment. (n.12). We therefore

decline to grant any relief to Lauder on this ground.

2. United States v. Booker

Finally, Lauder urges us to remand his case for resentencing in light of

United States v. Booker, —U.S.—, 125 S. Ct. 738 (2005). In Booker, the

Supreme Court applied its opinion in Blakey v. Washington, —U.S.—, 124 S. Ct.

2531 (2004), to the federal sentencing guidelines, holding that “[a]ny fact (other

than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” Booker, 125 S. Ct. at 756. Justice Breyer’s remedial opinion in Booker

-26-
then excised portions of the Sentencing Reform Act of 1984, codified at 18

U.S.C. § 3551 et seq., thus rendering the sentencing guidelines advisory. Id. at

757. Accordingly, prior to Booker, a district court could potentially make two

distinct types of error:

First, a court could err by relying upon judge-found facts, other than
those of prior convictions, to enhance a defendant’s sentence
mandatorily. As Booker makes clear, the Sixth Amendment prohibits
this practice. 125 S. Ct. at 756. . . . Second, a sentencing court could
err by applying the Guidelines in a mandatory fashion, as opposed to
a discretionary fashion, even though the resulting sentence was
calculated solely upon facts that were admitted by the defendant,
found by the jury, or based upon the fact of a prior conviction. Id. at
769. While this type of sentence does not violate the Sixth
Amendment, id., such a sentence is nonetheless impermissible
because the Court severed the portion of the Sentencing Reform Act
that required the mandatory application of the Guidelines, id. at 764.

United States v. Gonzalez-Huerta, 403 F.3d 727, 731–32 (10th Cir. 2005).

Lauder argues that his case involves the first kind of error, so-called

“constitutional Booker error.” Id. Specifically, he alleges the district court

violated his Sixth Amendment right to a jury trial by finding facts regarding drug

quantity amounts. The jury convicted Lauder of possession with the intent to

distribute “50 grams and more” of crack cocaine and “500 grams and more” of

powder cocaine, which is the equivalent of 1,100 kilograms of marijuana under

the sentencing guidelines. See USSG § 2D1.1. Based on this amount, when

combined with his Category I criminal history, Lauder’s guideline range would

-27-
have been 151 to 188 months. 8 The district court, however, over Lauder’s

objections, attributed additional crack and powder cocaine amounts that, when

converted, totaled 10,346 kilograms of marijuana. This put Lauder’s guideline

range at 235 to 293 months.

Although Lauder contested the factual basis for the drug amounts attributed

to him, he did not assert a constitutional objection during sentencing. We

therefore review the district court’s sentence for plain error. Gonzalez-Huerta,

403 F.3d at 732. To meet this standard, Lauder must show that the district court

(1) committed error, (2) that the error was plain, and (3) that the plain error

affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002).

If these three criteria are met, then (4) we may exercise discretion to correct the

error if it seriously affects the fairness, integrity, or public reputation of the

judicial proceedings. Id. at 631–32. However, we apply these factors “less

rigidly when reviewing a potential constitutional error.” United States v. Dazey,

403 F.3d 1147, 1174 (10th Cir. 2005) (quoting United States v. James, 257 F.3d

1173, 1182 (10th Cir. 2001)).

8
In a case such as this where the jury’s verdict does not find a specific
amount of drugs attributable to the defendant, we must assume the only amounts
found unanimously by the jury are those specifically alleged in the indictment.
See United States v. Magallanez, —F.3d—, No. 04-8021, 2005 WL 1155913, at
*7 (10th Cir. May 17, 2005).

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 (a) Prongs One and Two

Applying this analysis, it is readily apparent the first two prongs are met.

Lauder never admitted to the judge-found drug quantities, and the resulting

sentence, mandatorily imposed, exceeded the maximum authorized by the jury

verdict. Thus, the district court committed constitutional error. Booker, 125 S.

Ct. at 756; Magallanez, 2005 WL 1155913, at *9. Although Lauder was

sentenced in accordance with well-settled law, the error is plain because it is clear

and obvious at the time of his appeal. Gonzalez-Huerta, 403 F.3d at 732 (citing

Johnson v. United States, 520 U.S. 461, 468 (1997)). Thus, as in most Booker

appeals, Lauder’s potential resentencing rests on application of the third and

fourth plain error prongs.

(b) Third Prong

To satisfy the third prong, Lauder must demonstrate that the sentencing

error affected his substantial rights, which “usually means that the error must

have affected the outcome of the district court proceedings.” Cotton, 535 U.S. at

632. To meet this burden, Lauder must show “a reasonable probability that, but

for the error claimed, the result of the proceeding would have been different.”

United States v. Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333, 2339 (2004)

(citations and quotation omitted). In constitutional Booker error cases, we have

held that there are at least two ways a defendant can make the required showing:

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 First, if the defendant shows a reasonable probability that 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,
then the defendant successfully demonstrates that the error below
affected his substantial rights. This inquiry requires the appellate
court to review the evidence submitted at the sentencing hearing and
the factual basis for any objection the defendant may have made to
the facts on which the sentence was predicated. Second, a defendant
may show that the district court’s error affected his substantial rights
by demonstrating 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. For example, if during
sentencing the district court expressed its view that the defendant’s
conduct, based on the record, did not warrant the minimum
Guidelines sentence, this might well be sufficient to conclude that
the defendant had shown that the Booker error affected the
defendant’s substantial rights.

Dazey, 403 F.3d. at 1175; see also United States v. Clifton, —F.3d.—, No. 04-

2046, 2005 WL 941581, at *6 (10th Cir. April 25, 2005).

We need not resolve whether Lauder can satisfy his burden under the third

prong if he cannot show that the constitutional error seriously affected the

fairness, integrity, or public reputation of the judicial proceedings. Cotton, 535

U.S. at 632–33; Gonzalez-Huerta, 403 F.3d at 736. In this case, Lauder cannot

satisfy his burden under the fourth prong, and we therefore need not address

whether the constitutional error affected his substantial rights.

(c) Fourth Prong

Lauder bears the burden of showing the Booker error seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. Gonzalez-

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Huerta, 403 F.3d at 736. We have, to date, identified numerous non-exclusive

factors that can guide our fourth prong analysis. First, we have noted that

constitutional Booker errors will be noticed more freely. Clifton, 2005 WL

941581, at *6 (citations omitted). Another relevant inquiry is the relative strength

or weakness of the evidence supporting the defendant’s sentence under the

sentencing guidelines. Id. (citations omitted). Next, we may consider whether

the Booker error substantially increased the defendant’s sentence. Id. (citations

omitted). And, more recently, we have noted two additional factors: “a showing

that objective consideration of the [21 U.S.C.] § 3553(a) factors warrants a

departure from the sentence suggested by the Guidelines,” and “other evidence

peculiar to the defendant that demonstrates a complete breakdown in the

sentencing process.” United States v. Dowlin, —F.3d—, Nos. 03-8038, 03-8055,

2005 WL 1155882, at *18 (10th Cir. May 17, 2005) (citations omitted).

In conducting our fourth prong analysis, we remain mindful that the district

court’s error in this case was not its reliance on judge-found facts in sentencing.

Indeed, after Booker, it is now universally accepted that judge-found facts by

themselves do not violate the Sixth Amendment. Instead, the constitutional error

was the court’s reliance on judge-found facts to enhance Lauder’s sentence

mandatorily. Booker, 125 S. Ct. at 750 (“If the Guidelines as currently written

could be read as merely advisory provisions that recommended, rather than

-31-
required, the selection of particular sentences in response to differing sets of

facts, their use would not implicate the Sixth Amendment.”); United States v.

Lawrence, 405 F.3d 888, 906 (10th Cir. 2005). Therefore, another important

fourth prong consideration is “[w]hether the district court would simply reimpose

the same sentence on remand, or whether instead the sentence would likely

change to a significant degree if the case were returned to the district court for

discretionary sentencing.” Id. at 907 (citations and quotations omitted).

Addressing this last consideration first, there is nothing in the record which

suggests the district court believed a sentence below the guidelines range would

be appropriate. The record is simply silent on this point. The actual sentence

imposed by the court, however, indicates an exercise of discretion. Having

identified the guideline range as between 235 to 293 months, the district court

sentenced Lauder to five months above the bottom of the range. As we noted in

Lawrence, a sentence above the bottom of the range is an indicator that the

district court would simply reimpose the same sentence on remand, and therefore

core notions of justice would not be offended if we declined to notice the error.

405 F.3d at 908 (declining to notice the constitutional Booker error because,

among other things, the defendant was sentenced two months above the bottom of

the guideline range). Here, then, given the actual sentence, Lauder does not

demonstrate the district court would act differently in a discretionary

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environment.

Additionally, looking to the strength or weakness of the evidence

supporting Lauder’s sentence, all of the judge-found drug amounts rested on

direct evidence offered at trial, either physical evidence recovered by the raid or

testimony from cooperating witnesses. See Magallanez, 2005 WL 1155913, at *9

(declining to notice constitutional Booker error in part because “[t]he court based

its assessment of drug quantity on the evidence at trial, totaling up all drug

quantities specifically linked by witnesses to [the defendant]”). The judge, in

fact, stated at Lauder’s sentencing hearing that “I do think the amounts are

justified.” Aple. Supp. R.O.A., at 12. Although Lauder contested the drug

amounts testified to by Soleil Sligh, he offered no evidence to rebut her

testimony. As the judge stated, “Well, the jury basically believed her. I don’t

think there’s much question about that.” Id. at 7.

These statements, in our view, are further evidence the judge would merely

reimpose the same sentence were we to remand this case for resentencing. In

fact, the record actually supports a finding of more drugs than the district court

attributed to Lauder at sentencing. The PSR, for example, failed to take into

account ten additional ounces of crack cocaine (283.5 grams) that could have

been attributed to Lauder based on trial testimony. The PSR’s oversight, had it

been noticed by the district court, would have substantially increased Lauder’s

-33-
sentencing guideline range.

Finally, there is no evidence in the record that an objective application of

the 21 U.S.C. § 3553(a) factors would support a departure from the Guidelines in

this case, nor that this case presents peculiar evidence demonstrating a breakdown

in the sentencing process. Indeed, only one factor weighs in Lauder’s favor,

which is that the judge-found facts substantially increased the applicable

guideline range. The drug quantity amounts found by the judge increased

Lauder’s base sentence range by 84 months, which, in our view, is a substantial

increase. Nonetheless, this one factor—like any of the factors we have identified

in our prior cases—is not dispositive, especially given the essentially unrebutted

evidence relied on by the district court.

In sum, Lauder has not shown that the constitutional error in this case

seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. The actual sentence (five months above the bottom of the guideline

range), direct evidence supporting the judge-found quantity amounts, and

statements by the district court persuade us that a remand in this case would only

result in the reimposition of the same sentence. We therefore decline to notice

the error, and affirm Lauder’s sentence.

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 III. CONCLUSION

For the foregoing reasons, we AFFIRM the conviction and sentencing on

all counts.

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