## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 17 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee and CrossAppellant,

v. Nos. 99-3025, 99-3048 CHERYL MARIE GIGLEY,Defendant-Appellant and CrossAppellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 96-CR-40002)

Tom G. Luedke, Assistant United States Attorney (Ja ckie N. Williams, United States Attorney, with him on the brief), Topeka, Ka nsas, for PlaintiffAppellee/Cross-Appellant. Marilyn M. Trubey, Assistant Federal Public Defende r (David J. Phillips, Federal Public Defender, with her on the brief), Topeka, Ka nsas, for DefendantAppellant/Cross-Appellee.

Before BALDOCK , HENRY , and LUCERO , Circuit Judges.

BALDOCK , Circuit Judge.-2-

Defendant Cheryl Marie Gigley conditionally pled gu ilty to possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841. See Fed. R. Crim. P. 11(a)(2). The district court sent enced her to ten years imprisonment. She appeals the district court’s den ial of her motion to suppress drug evidence as well as her motion to withdraw herguilty plea. The Government cross-appeals the district court’s use of the quant ity of methamphetamine mixture to calculate Defendant’s base offense level for sen tencing. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We af firm the district court’s denial of Defendant’s motion to suppress and motionto withdraw her guilty plea, and remand for resentencing based on the quantity o f pure methamphetamine.
I While patrolling I-35, Kansas Highway Patrol Troope r Brian Smith stopped Defendant’s van for speeding and weaving. Smith ap proached Defendant’s van and asked Defendant to get out and produce her driv er’s license. Defendant sat in the front passenger seat of Smith’s patrol car. Wh ile checking Defendant’s driver’s license, Smith asked Defendant about her travel plans. Defendant stated she was traveling from Tulsa to Minneapolis. About eight minutes after the start of the encounte r, the dispatcher told Smith that Defendant’s license was valid. Smith re turned Defendant’s license and registration and issued her a warning citation. Atthe suppression hearing, Smith-3-

testified: “At that time I informed her that was a ll I had for her.” Then, “I asked her if I could ask a couple more questions.” Smith testified that Defendant’s reply was “She sat there and–yes.” Smith asked herif she was carrying drugs or guns in her car. She replied that she was not. Ne xt, Smith “asked her if [he] could look in the vehicle.” Defendant hesitated, b ut once Smith assured her the search would not take long, she said yes. Smith te stified, “At that time, I informed her that if I was going to look in the veh icle that I would like to have her get the dog out and move it away at a safe dist ance . . . .” Smith waited in his patrol car while Defendant took the dog out of the van, put it on a leash, and walked it away from the van. Smith testified, “Wh en she got the dog out of the vehicle, she left the passenger side front door ope n as well as the sliding door on the side were left open on the vehicle.” Smith and another officer who had arrived at the sc ene searched the van while Defendant and her dog waited on the shoulder of the road about 20-25 yards away. At no time did Defendant object to the offic ers’ search. Within six minutes, the officers looked under the rear middle seat and found a large black plastic bag wrapped with grey duct tape. Inside we re four clear plastic bags containing methamphetamine.1 We remind the district courts that the existence of a videotape of the

encounter does not release the district courts from making adequate findings. See Fed. R. Crim. P. 12(g) (providing for the making of a record of findings of fact made orally at pretrial hearings); United States v. Mendez , 118 F.3d 1426, 1430- 31 (10th Cir. 1997) (remanding the case to the dist rict court to make more factual findings regarding the voluntariness of the defendant’s consent). -4- II. Defendant argues that the district court erred in d enying her motion to suppress the drug evidence on the grounds that (1) the officers did not have reasonable suspicion to search her car and (2) she did not voluntarily consent to the search. After hearing Smith’s uncontroverted t estimony and viewing a videotape of the encounter, which we also have revi ewed, the district court denied the motion, finding that “this was a valid search. . . . Defendant kn ew that she was consenting to allow this search and that she di d give a valid consent.” 1
A. In reviewing the denial of a motion to suppress, we review the evidence in a light most favorable to the government. United S tates v. Patten , 183 F.3d 1190, 1193 (10th Cir. 1999). We review the district court’s findings of historical fact for clear error and give due weight to the inferenc es which the district court draws from those findings. Id. The credibility of witnesses and the weight to be given the evidence is the province of the district court. Id. The district court’s-5-

ultimate determination as to the constitutionality of a law enforcement official’s actions is a question of law reviewable de novo. I d. Like in the district court, Defendant raises the is sues of reasonable suspicion and voluntarily consent. We need not, ho wever, reach the question of whether Smith had reasonable suspicion to search th e van because we hold that the district court did not clearly err in finding t hat Defendant voluntarily consented to the search of her van. See United States v. Elliott , 107 F.3d 810, 813 (10th Cir. 1997) (noting that once an officer r eturns the licence and registration and writes a citation, the officer mus t let the driver go without further questioning, unless the officer has a reasonable su spicion of criminal activity or the driver’s voluntary consent). When reviewing th e record, we look for evidence that (1) Defendant in fact voluntarily consented to the search and (2) the search did not exceed the scope of Defendant’s consent. E lliott , 107 F.3d at 810. Because a consensual encounter is voluntary, such an encounter does not constitute a “seizure” within the meaning of the Fo urth Amendment. Patten , 183 U.S. at 1194. Rather, a consensual encounter is si mply the voluntary cooperation of a private citizen in response to non-coercive qu estioning by a law enforcement officer. Id. By contrast, an individual is “seized” when she h as an objective reason to believe that she is not free to terminate her conversation with the officer and proceed on her way. Id. The question of whether an encounter was-6-

consensual is a matter for the refined judgment of the district court. Id. Valid consent is that which is freely and intelligently g iven. Id. Whether a consent to search during a consensual encounter with a police officer is voluntary is a question of fact to be determined from the totality of the circumstances. Id. “The scope of a search is . . . limited by the brea dth of the consent given.” Elliott , 107 F.3d at 814-15 (citations omitted). We apply an “objective reasonableness” standard to the scope of consent: “ what would the typical reasonable person have understood by the exchange b etween the officer and the suspect.” Id. We look at the totality of the circumstances when determining whether a search was within the scope of the consent. United States v. GutierrezHermosillo , 142 F.3d 1225, 1231 (10th Cir.), cert. denied , 119 S. Ct. 230 (1998).
B. Applying the foregoing to the facts of this case, t he detention ended when Smith returned Defendant’s licence and registrationand handed her a warning citation, telling her: “That’s all I have for you.” See Elliott , 107 F.3d at 814 (noting that the encounter was consensual because the officer returned the defendant’s documentation to her before asking any questions about carrying contraband). The consensual encounter began when D efendant granted Smith permission to ask her some questions. See Patten , 183 F.3d at 1192 (noting that the consensual encounter began when the defendant a sked the officer about local-7-

tourist attractions). The fact that Defendant was sitting in the front passenger seat of Smith’s patrol car, without more, does not make her consent involuntary. See United States v. Anderson , 114 F.3d 1059, 1064 (10th Cir. 1997) (finding that the encounter was consensual, despite the fact that the officer and the defendant were both sitting in the patrol car during the questioni ng, because a reasonable person would have felt free to terminate the encounter). After Smith asked her if he could “look” in the van , Defendant hesitated, but once Smith told her it would not take long, Def endant said yes. Defendant’s hesitation does not make the consent involuntary. See United States v. Flores , 48 F.3d 467, 468 (10th Cir. 1995) (finding that the de fendant’s consent was voluntary, despite the fact that she hesitated befo re reopening the trunk of her car). Furthermore, Defendant proceeded to remove t he dog and leave the van’s doors open. Smith could infer from Defendant’s act ions that she consented to the search. See id. at 469 (finding that the defendant consented to th e search by reopening the trunk). Moreover, Smith’s search did not exceed the scope o f Defendant’s consent. By agreeing to let Smith “look in” the van, Defenda nt authorized Smith to do more than just peer into the windows. See United States v. McRae , 81 F.3d 1528, 1537-38 (10th Cir. 1996) (finding that consent to “ look in” a car included lifting the carpet in the trunk); United States v. Pena , 920 F.2d 1509, 1514 (10th Cir.2 As a threshold question, we must determine whetherDefendant’s

ineffective assistance of counsel claim may be addr essed on direct appeal or whether it should be addressed in a collateral proc eeding pursuant to 28 U.S.C. § 2255. “[I]n rare instances an ineffective assist ance of counsel claim may need no further development prior to review on direct ap peal.” See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). W e may review an ineffective assistance of counsel claim on direct appeal if the record has been adequately developed by the district court prior to appeal. United States v. (continued...) -8- 1990) (finding that consent to “look in” a car allo wed the officer to remove door panels). By removing her dog, leaving the van’s do ors open, and not objecting while the officers searched the van, Defendant sign aled that the search was within the scope of her consent. See Patten , 183 F.3d at 1195 (finding that the defendant consented to the officer’s search of the suitcase i n the trunk because the defendant remained silent and cooperated in opening the suitcase); United States v. Gordon , 173 F.3d 761, 766 (10th Cir. 1998), cert. denied , 120 S. Ct. 205 (1999) (A defendant’s “failure to object when the search e xceeds what he later claims was a more limited consent, is an indication the se arch was within the scope of consent.”). Accordingly, we find that the districtcourt did not clearly err in finding that Defendant voluntarily consented to the search.
III. Defendant also argues that the district court erred in denying her motion to withdraw her guilty plea on the grounds that her pl ea was not knowing and voluntary and that she received ineffective assistance of counsel. 2 Defendant2 (...continued)

Carter , 130 F.3d 1432, 1442 (10th Cir. 1997), cert. denie d , 523 U.S. 1144 (1998). In this case, we believe that the record is suffici ently developed to allow review of Defendant’s ineffective assistance of cou nsel claim on direct appeal. After Defendant failed to appear for sentencing, sh e was represented by different counsel. Defendant’s new counsel filed a motion to withdraw the guilty plea Defendant entered on the advice of her former couns el. The district court issued a written order denying the motion to withdraw the plea. Defendant’s counsel again argued for allowing Defendant to withdraw herguilty plea at the sentencing hearing. Cf. Carter , 130 F.3d at 1442 (finding the record sufficientlydeveloped because counsel had presented post-trial motions an d testimony at the sentencing hearing regarding defendant’s discussions with his counsel about the plea agreement). -9- entered a conditional guilty plea on the advice of her counsel. Counsel wrote Defendant a letter stating that a “plea would resul t in as little as a 70 to 87 month sentence wherein trial will result in a sentence of 188 to 235 months.” Defendant signed the bottom of the letter, stating that she h ad reviewed it. In her petition to enter the guilty plea, Defendant signed under oath the statement, “My lawyer has counseled and advised me on the nature of each char ge, on all lesser included charges, and on all possible defenses that I might have in this case.” The petition also stated, “I realize [that] the Court may impose the same punishment as if I had pleaded ‘not guilty,’ stood trial, and been convict ed by a jury.” The petition described the 10 year mandatory minimum sentence. The petition stated, “I believe that my lawyer has done all that anyone cou ld do to counsel and assist me, and I am satisfied with the advice and help he has given me.”-10-

At the plea hearing, the district court asked Defen dant, “Do you realize that even though you plead guilty, the Court may impose the same punishment as if you had pleaded not guilty and stood trial and been convicted by a jury?” The district court informed Defendant that the minimum penalty was 10 years imprisonment and discussed the terms of the plea ag reement. Defendant agreed that she entered the plea voluntarily and that she was satisfied with her attorney. The district court entered an order finding that De fendant pled freely and voluntarily and without coercion. Defendant failed to appear for sentencing. Two yea rs later, after she was apprehended, Defendant filed a motion to withdraw h er guilty plea, arguing that it was involuntary and coerced due to the ineffective assistance of counsel. Specifically, Defendant argued that her counsel was deficient for falsely describing the minimum and maximum penalties. The district court denied Defendant’s motion to withdraw her guilty plea, fin ding that her counsel was not ineffective and that his performance did not prejud ice her case. The district court further found that [w]hen the defendant entered her plea, this court s pecifically asked her about the voluntariness of her plea, in accorda nce with Fed. R. Crim. P. 11. Prior to accepting her plea, this cou rt insured that the defendant was accurately advised of the mandatory m inimum penalty as well as the maximum penalty she faced should herplea be accepted. . . . [T]his court warn[ed the] defendan t that it could impose the same punishment as if she had pleaded no t guilty, stood trial, and been convicted by a jury.-11-

The district court found that Defendant did not pro fess her innocence, and that her two-year delay in filing the motion to withdraw was due to her fugitive status and was likely to substantially prejudice the Governmen t at trial.
A. We review the district court’s denial of a motion t o withdraw a guilty plea for an abuse of discretion. United States v. Jones , 168 F.3d 1217, 1219 (10th Cir. 1999). The district court may allow a defendant to withdraw a guilty plea before sentencing “if the defendant shows any fair and jus t reason.” Fed. R. Crim. P. 32(e). We will not reverse the district court unle ss Defendant demonstrates that the district court acted unjustly or unfairly, ther eby abusing its discretion. Jones , 168 F.3d at 1219. In determining whether Defendanthas carried this burden, we weigh the following factors: (1) whether the defend ant has asserted her innocence, (2) prejudice to the government, (3) del ay in filing defendant’s motion, (4) inconvenience to the court, (5) defenda nt’s assistance of counsel, (6) whether the plea was knowing and voluntary, and (7) waste of judicial resources. Id. A guilty plea is void if it is not knowing and vo luntary. Parke v. Raley , 506 U.S. 20, 28 (1992). Defendant relies primarily on the fifth and sixth f actors to set aside her guilty plea. With respect to the sixth factor, a p lea is valid if it represents a voluntary and intelligent choice among the alternat ives open to the defendant.-12-

See United States v. Kramer , 168 F.3d 1196, 1200 (10th Cir. 1999). With respe ct to the fifth factor, a defendant received ineffecti ve assistance of counsel if (1) her counsel’s performance fell below an objective stand ard of reasonableness and (2) that counsel’s deficient performance prejudiced the defendant. Id. at 1201. Defendant must overcome a strong presumption that h er counsel’s performance fell within the broad range of reasonable professio nal conduct. Trice v. Ward , 196 F.3d 1151, 1159 (10th Cir. 1999). To show prej udice, the defendant must establish that there is a reasonable probability th at, but for counsel’s errors, the defendant would not have pled guilty and would have insisted on going to trial.
Kramer , 168 F.3d at 1201.
B. The record supports the district court’s finding th at Defendant entered her guilty plea voluntarily. Defendant was aware of th e possible outcomes if she pled guilty or if she went to trial. The petition to en ter the plea described the statutory minimum penalty and warned Defendant that she may r eceive the same sentence after a guilty plea that she would have received af ter a trial. Pursuant to Fed. R. Crim. P. 11, the district court conducted a thoroug h inquiry at the plea hearing to insure that Defendant pled freely and voluntarily. See Jones , 168 F.3d at 1220 (holding that the defendant’s guilty plea was valid where the district court carefully questioned the defendant about whether he understood the consequences-13-

of his guilty plea). At the plea hearing, Defendan t agreed that she was not coerced into pleading guilty and that she made her plea voluntarily. Likewise, the record supports the district court’s finding that Defendant’s counsel provided effective assistance during her de cision to enter a guilty plea and that therefore she was not prejudiced. In the petition to enter the guilty plea and at the plea hearing, Defendant told the distric t court that she was satisfied with her counsel’s performance. Based on the terms of the plea agreement, Defendant’s counsel accurately described the possib le penalties. Defendant could have received a sentence of 188-235 months if she w as convicted at trial and the district court found the drug quantity to be 1-3 ki lograms of methamphetamine (actual), resulting in a base offense level of 36. United States Sentencing Commission, Guidelines Manual , § 2D1.1(c) (Nov. 1995). With Defendant’s criminal history category of I, an offense level of 36 produces a sentence of 188- 235 months. Defendant could have received a senten ce of 70-87 months if, starting with a base offense level of 36, the distr ict court (1) granted a 3-level downward adjustment for acceptance of responsibility under § 3E1.1(b), (2) granted a 4-level downward adjustment for minimal r ole under § 3B1.2(a), and (3) found Defendant eligible for the “safety valve,” 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2, thereby granting a 2-level downward adjustme nt, § 2D1.1(b)(4), and allowing the district court to impose a sentence be low the 10 year statutory3 Even if his predictions had been inaccurate, thatwould not constitute

ineffective assistance of counsel under these circu mstances. “A miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffe ctive assistance of counsel.” United States v. Gordon , 4 F.3d 1567, 1570 (10th Cir. 1993). -14- minimum sentence, 21 U.S.C. § 841(b)(1)(A). The re sulting offense level of 27, with Defendant’s criminal history category of I, pr oduces a 70-87 month

sentence. 3 Because counsel’s performance was not deficient, we need not reach the issue of whether his conduct prejudiced Defendant’s case. Considering the remaining factors, the district cou rt did not abuse its discretion in denying Defendant’s motion to withdraw her guilty plea. Defendant has not asserted her innocence. The two-year delay between the guilty plea and the filing of the motion to withdraw is the result of Defendant’s failure to appear for sentencing. The delay would prejudice the Gove rnment because it will have difficulty producing witnesses, and those who do ap pear may have failing memories. Defendant has not shown an interest thatovercomes the inconvenience to the courts and the waste of judicial resources. See Jones , 168 F.3d at 1219-21.
IV. The Government cross-appeals, arguing that the district court erred in relying on the quantity of methamphetamine mixture to find the base offense level for sentencing. The Kansas Bureau of Investigation report noted that the total quantity of methamphetamine mixture was 1678 grams. The report also noted that4 The Government’s objection is properly before us because the district

court considered it at the sentencing hearing. See Fed. R. Crim. P. 32(b)(6)(D) (providing for objections to presentence reports fo r good cause at any time before sentencing); United States v. Archuleta , 128 F.3d 1446, 1452 n.12 (10th Cir. 1997) (considering an objection that the governmentdid not raise until the sentencing hearing). -15- the four bags of methamphetamine, each weighing rou ghly 420 grams, were roughly 75% pure. The bags contained 1276 grams of pure methamphetamine. The presentence report prepared in 1996 used the 16 78 grams of methamphetamine mixture to suggest a base offense l evel of 32. The Government objected by letter, and the presentence report was revised to rely on the quantity of pure methamphetamine to suggest a base offense l evel of 36. After Defendant’s reappearance, the republished presenten ce report again relied on the amount of methamphetamine mixture. Defendant objec ted to the presentence report; the addendum to the presentence report refl ected Defendant’s objections but not the Government’s earlier objection. The Go vernment renewed its objection at the sentencing hearing. 4 On Defendant’s motion, the district court ordered the Government to produce the drug evidence for independent testing. At the sentencing hearing, Defendant introduced the report of Dr. Peter F. Lott, who reviewed the KBI report. Dr. Lott wrote: “The laboratory work does not appear to be in significant error.” The district court made no findings regard ing Dr. Lott’s report, but-16-

merely adopted the base offense level of 32 as reco mmended in the presentence report. At the sentencing hearing, the Government introduce d the KBI report and objected to the presentence report’s reliance on th e quantity of methamphetamine mixture. The district court heard the objection, b ut overruled it, choosing to follow the presentence report’s recommendation: “A ll right. I note your objection, but same is overruled. I’m going with t he findings.” The district court imposed a 2-level enhancement fo r obstruction of justice and a 4-level reduction for minimal role, resulting in an offense level of 30. It found that Defendant was not entitled to an adjustm ent for acceptance of responsibility or the “safety valve” adjustment. D efendant’s criminal history category was I, producing a sentencing range of 97- 121 months. Because the statutory minimum sentence is 10 years, 21 U.S.C. § 841(b)(1)(A), the district court imposed a sentence of 120 months.
A. The Government argues on cross-appeal that the district court erred in determining the base offense level using the quanti ty of methamphetamine mixture. We review the district court’s factual fi ndings for clear error and its interpretation and application of the sentencing gu idelines de novo. United States v. Roberts , 185 F.3d 1125, 1144 (10th Cir. 1999). The Govern ment has the-17-

burden of proving the quantity of drugs by a prepon derance of the evidence. United States v. Green , 175 F.3d 822, 836-37 (10th Cir.), cert. denied , 120 S. Ct. 132 (1999). The sentencing guidelines’ drug quantity table prov ides two ways of calculating the base offense level for methamphetam ine: first, based on the quantity of methamphetamine-containing mixture, and second, based on the quantity of pure methamphetamine in the mixture. The terms “PCP (actual)” and “Methamphetamine (actu al)” refer to the weight of the controlled substance, itself, con tained in the mixture or substance. For example, a mixture weigh ing 10 grams containing PCP at 50% purity contains 5 grams of PC P (actual). U.S.S.G. § 2D1.1(c) n.B. The drug quantity table p rovides different base offense levels for methamphetamine and methamphetamine (act ual). The district court is to “use the offense level determined by the entire weight of the mixture of substance, or the offense level determined by the w eight of the PCP (actual) or methamphetamine (actual), whichever is greater.” I d. ; United States v. Decker , 55 F.3d 1509, 1513 (10th Cir. 1995); United States v. Cook , 49 F.3d 663, 664 (10th Cir. 1995).
B. In this case, the KBI report found Defendant posses sed 1678 grams of methamphetamine and 1276 grams of methamphetamine ( actual). The district court used the quantity of methamphetamine to find a base offense level of 32,5 Defendant argues that the district used the lower base offense level

because of uncertainties raised by Dr. Lott’s report. The district court, however, made no findings to that effect. In any event, the sentencing guidelines are clear that the district court must impose the higher sent ence. -18- rather than using the quantity of methamphetamine ( actual) to find a base offense level of 36. U.S.S.G. § 2D1.1(c) (drug quantity ta ble). The district court should have used the quantity of methamphetamine (actual) to find the base offense level because it produces a higher sentence. See id. at § 2D1.1(c) n.B; Decker , 55 F.3d at 1513 (“In the final analysis, the guidelines dir ected the district court to calculate the drug quantity in two ways and to use the calculation which resulted in the greater sentence.”); Cook , 49 F.3d at 664 (using the quantity of methamphetamine (actual) to determine the sentence because it produced a higher base offense level). Accordingly, we remand for re sentencing using the quantity of methamphetamine (actual). 5 AFFIRMED in part and REMANDED for resentencing in a ccordance with this opinion.