* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### February 23, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 05-3234

v. (D. Kansas) FRANCISCO BANDA, also known as Paco, Defendant - Appellant. (D.C. No. 00-CR-40126-02-RDR)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, ANDERSON and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Francisco Banda pled guilty to one count of conspir acy to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. He was orig inally sentenced to 180 months’ imprisonment. Following an appeal and a re mand by this court, Banda was resentenced to 150 months’ imprisonment. He no w appeals that sentence.

BACKGROUND On December 20, 2000, a grand jury indicted Banda, Adam Grabel Guzman, and Michael Thomas Albers on six counts of various drug-related offenses. As indicated, Banda pled guilty to one c ount of conspiracy to distribute more than 500 grams of a mixture or substance conta ining a detectable amount of methamphetamine. In initially sentencing Banda to 180 months’ impris onment, the district court overruled his forty-two objections to the pre sentence report (“PSR”) prepared by the probation office, many of which rel ated to the estimates of the drug quantities involved in the conspiracy. The co urt then adopted the PSR and sentenced Banda to 180 months’ imprisonment. Banda appealed his sentence, and our court remanded the case for resentencing after concluding that the district cou rt, in merely adopting the PSR, had failed to comply with its fact-finding obligati ons under then Fed. R. Crim.-3-

P. 32(c)(1), now 32(i)(3), with respect to disputed portions of the PSR. See United States v. Banda , 87 Fed. Appx. 129, 2004 WL 171630, at **1 (10th C ir. Jan. 29, 2004). We also directed the district court on remand to clarify the proper adjustment of Banda’s offense level for his partici pation as a manager or supervisor under the United States Sentencing Commi ssion, Guidelines Manual , (“USSG”) §3B1.1 (Nov. 2001). Following our remand, but before Banda was resenten ced, the Supreme Court issued its decisions in Blakely v. Washington , 542 U.S. 296 (2004), and United States v. Booker , 125 S. Ct. 738 (2005). Bookerheld that the Sixth Amendment requires that “[a]ny fact (other than a p rior conviction) which is necessary to support a sentence exceeding the maxim um authorized by the facts established by a plea of guilty or a jury verdict m ust be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Bo oker , 125 S. Ct. at 756. The remedy for this constitutional infirmity was to sev er that portion of the Sentencing Reform Act of 1984 which made the Guidel ines mandatory, thereby rendering them advisory. Bookerspecifically directed lower courts to apply its holdings “to all cases on direct review.” Id. at 769. On remand, Banda challenged his sentence on various grounds, including the appropriate application of Bookerto his sentence. He appeared to argue that the district court should apply the substantive Sixth Amendment holding of-4-

Bookerto the calculation of his sentence, but not the re medial holding. He accordingly argued the district court should “impos e a Guidelines sentence without any enhancements based on judge found facts .” Mem. & Order at 3, Appellee’s Br. attach. D. He further argued that application of the remedial portion of Bookerto him would violate his due process rights, or, a lternatively, if the remedial portion was applied, the district court should “make all factual determinations that increase his sentence above the guideline sentence based upon a beyond a reasonable doubt standard.” Id. Banda also argued that the evidence did not support an increase in his sentence based upon drug quantities or his status as a leader or organizer, and that the courtshould consider his extraordinary post-offense rehabilitation in senten cing him. The district court rejected Banda’s legal arguments about the applicability of Booker , concluding that it was obligated to sentence him in accordance with all of Booker ’s pronouncements. The court then specifically add ressed all of Banda’s objections to the PSR which our court had d etermined were inadequately addressed at Banda’s first sentencing proceeding. With respect to Banda’s multiple objections to drug quantities, the distric t court found: The amount of drugs in this case was calculated fro m the following material recounted in the presentence report: (1) ten pounds of methamphetamine that [co-conspirator] Patterson adm itted to purchasing from [Banda]; (2) 579.14 grams of methamphetamine and 230.78 grams of marijuana seized during controlled purchases on four occasions in April 2000, and once in November 2000, and once-5-

in December 2000; (3) 13 ounces of methamphetamine sold to [codefendant] Albers by [Banda] in July 1999; (4) five pounds of methamphetamine and 80 pounds of marijuana supplied by [Banda] to Albers in September 1999; (5) four pounds of met hamphetamine and 58 pounds of marijuana brought to Albers’ busin ess on December 31, 1999; (6) 68 pounds of marijuana provi ded to Albers by [co-defendant] Adam Guzman in tires; and (7) 78 pounds of marijuana Albers transported from Dodge City, Kansa s to Salina, Kansas for [Banda]. These figures add to a total o f 20,479.53 grams of methamphetamine and 165,341.18 grams of marijuan a. With the conversion of these amounts to marijuana, the total becomes 41,070.32 kilograms of marijuana. Based upon that amount, [Banda’s] base offense level is 38. Id. at 7. The court then explained why it rejected Ba nda’s objections to the drug quantities identified in the PSR or, in the case of one objection, why the court found it unnecessary to address it and in the case of another objection, why the court decided to omit from the drug quantity calcul ation the amount challenged in the objection. The court also noted that “[e]ven i f [it] were to reduce the amounts contained in the presentence by one-half, [Banda’s] offense level would remain at level 38.” Id. at 9. The court further explained why it found su fficient evidence to increase Banda’s base offense level by three lev els because he was a manager and supervisor under USSG §3B1.1. Finally, the cou rt examined Banda’s postconviction rehabilitation efforts under 18 U.S.C. § 3553(a), concluding that those efforts were “commendable,” but not “present to an exceptional degree” as required in order to be an appropriate ground for d ownward departure. Mem. & Order at 15, Appellee’s Br. attach. D.-6-

The district court then sentenced Banda to 150 mont hs, stating its belief that “this sentence will meet the sentencing object ives of deterrence, punishment, rehabilitation, and protection of the public.” Id. at 16. The court further explained that it was “a fair and reasonable senten ce, and it is a sentence sufficient, but not greater than, necessary to comp ly with the aforementioned sentencing purposes in light of all of the circumst ances in this case, including the nature and circumstances of the offense and the his tory and characteristics of the defendant.” Id. Banda appeals that sentence, arguing (1) the court erred in basing its “relevant conduct determinations on unreliable hear say contained in police reports of witnesses rather than on sworn testimony before the Grand Jury by the same persons that contradicted and was inconsistent with the police reports,” Appellant’s Br. at 2; (2) failing to have the jury make findings relevant to sentencing is structural error requiring automatic reversal; (3) the Fifth Amendment bars application of Booker ’s remedial holding; and (4) the district court violated the Sixth Amendment by using a prepo nderance of the evidence standard to find facts which increased Banda’s sent ence beyond what could have been imposed based upon facts he admitted.

DISCUSSION-7-

I. Relevant conduct Banda pled guilty to conspiring to distribute more than 500 grams of methamphetamine. The PSR described additional amou nts of drugs, including various activities by Banda’s co-conspirators. In his sentencing memorandum filed with the district court and at his sentencing hearing, Banda contested the drug amounts attributed to him by the PSR. The dis trict court concluded that “the government ha[d] sustained its burden of proof as t o the drug quantity for the base offense level,” found that “the amounts attrib utable to [Banda] in the presentence report [were] correct, with one minor e xception” and determined that 41,070.32 kilograms of marijuana were attributable to Banda. Mem. & Order at 9, 7, Appellee’s Br. attach. D. Banda argues that the PSR erroneously relied in part upon statements made by various co-conspirators to law enforcement offic ers and contained in police reports, which contradict the testimony by those co -conspirators before the grand jury. For example, Banda points to the drug quanti ties alleged in paragraph 53 of the PSR, which described statements of co-conspirat or Patterson as follows: Patterson, [co-conspirator] Jacob, and [co-conspirator] Patrick were called to testify before a Grand Jury sitting in To peka, Kansas. Patterson admitted being present on approximately 2 0 to 30 separate occasions when Banda delivered 1⁄2 to 5 lbs. of metha mphetamine to [co-conspirator] Michael Thomas Albers. Patterson also admitted delivering drugs for Albers, as did [co-conspirator ] Daniels.-8-

PSR ¶ 53, Def.’s App. Vol. 3. Banda argues Patters on’s grand jury testimony discussed much smaller quantities of drugs, not nea rly enough to support the attribution of ten pounds of methamphetamine calcul ated in the PSR. See PSR ¶ 69, id. The government responds that it is permissible to r ely upon hearsay statements in sentencing, provided they are reliabl e. Further, even if ten pounds of methamphetamine are eliminated from the sentenci ng calculus based upon Banda’s objection to the quantity referenced in par agraph 53 of the PSR, that would not change his base offense level. Finally, the government argues the district court correctly found that the co-conspirator statements bore the minimum indicia of reliability necessary to support its dru g calculation. We have held that: [f]actual findings regarding drug quantities are re viewed for clear error and are reversed only if the district court’s finding was without factual support in the record or we are left with t he definite and firm conviction that a mistake has been made. When the actual drugs underlying a drug quantity determination are not se ized, the trial court may rely upon an estimate to establish the de fendant’s guideline offense level so long as the information relied upon has some basis of support in the facts of the particula r case and bears sufficient indicia of reliability. United States v. Dalton , 409 F.3d 1247, 1251 (10th Cir. 2005) (internal qu otations and citations omitted). Furthermore, even after Bo oker , “facts relevant to sentencing have generally been found by a preponder ance of the evidence,” and-9-

“[n]othing in Bookerchanges this analysis.” United States v. Magallan ez , 408 F.3d 672, 684 (10th Cir. 2005). Finally, “[i]n a c ontrolled substances case, a defendant is ‘accountable for all quantities of con traband 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 scop e of the criminal activity that he jointly undertook.’” Uni ted States v. Lauder , 409 F.3d 1254, 1267 (10th Cir. 2005) (quoting USSG §1B1.3, c omment. (n.2)); see also United States v. Dazey , 403 F.3d 1147, 1176 (10th Cir. 2005) (“A defendan t convicted of conspiracy is accountable for reasonab ly forseeable conduct in furtherance of the jointly undertaken criminal acti vity.”). Applying those standards, we find no clear error in the district court’s calculation of drug quantities attributable to Band a. The court properly considered quantities Banda’s co-conspirators handl ed. Further, there is no prohibition on considering hearsay testimony at sen tencing, provided it bears indicia of reliability. “Plainly, the Federal Rule s of Evidence do not apply at sentencing. Moreover, courts have traditionally be en allowed to consider all sources of information in formulating an appropriat e sentence.” United States v. Beaulieu , 893 F.2d 1177, 1179 (10th Cir. 1990) (citation om itted); see also United States v. Hershberger , 962 F.2d 1548, 1554 (10th Cir. 1992) (“[C]onstitu tional provisions regarding the Confrontation Clause are n ot required to be applied1 Banda particularly challenges co-conspirator Patter son’s statements as to

drug quantity, reported in PSR ¶ 53. The district court explained its treatment of those statements: [Banda] suggests that the amounts contained in para graph 53 of the presentence report are not found in the grand jury testimony of Patterson. [Banda] is correct. These amounts came from a statement (continued...) -10- during sentencing proceedings.”); United States v. Jimenez , 928 F.2d 356, 365 (10th Cir. 1991) (“[U]nder the guidelines, the amou nt of drugs upon which one is sentenced is not limited to the amount to which a d efendant enters a plea of guilty. . . .”); USSG §6A1.3(a); id. , comment. (“Reliable hearsay evidence may be considered [at sentencing].”). The statements of B anda’s co-conspirators were therefore properly considered in calculating Banda’ s drug quantity. Furthermore, the district court found those stateme nts bore indicia of reliability: Having read all of the statements made by [Banda’s] co-conspirators, the court is persuaded that the amounts attributabl e to [Banda] in the presentence report are correct, with one minor exce ption . . . , and that his participation in the conspiracy is as sugg ested in the presentence report. The court finds that the infor mation supplied by Adam Guzman, Albers, Howze, Jacob, Patterson, Patri ck and Maximo Guzman has the minimal indicia of reliability necessary for sentencing purposes. Mem. & Order at 9, Appellee’s Br. attach. D. Afterreviewing the record, we agree with the district court that Banda’s co-consp irators’ statements are sufficiently reliable to support the drug quantity calculation. 1 We accordingly1 (...continued)

made by Patterson to FBI Task Force Agent Mike Metz ler on October 26, 2000. Patterson did subsequently make differen t statements to the grand jury. The probation officer, in an effor t to resolve these inconsistencies, did not calculate the amount of dr ugs attributable to [Banda] based upon the earlier statement made by Patterson to Agent Metzler. Mem. & Order at 10-11, Appellee’s Br. attach. D. T he court further “agree[d] that the statements of the various participants wer e not always consistent, but [it] believe[d] that the amounts determined in the prese ntence report are reasonably calculated.” Id. at 11. -11- conclude that the district court did not commit cle ar error in calculating that drug quantity.

II. Structural error Banda argues it was structural error for the distri ct court to find sentencing factors by a preponderance of the evidence, rather than the jury applying a beyond-a-reasonable-doubt standard. This argument fails for a number of reasons. First, Bookerdoes not require that the jury find sentencing fac tors beyond a reasonable doubt. “[I]t is now universall y accepted that judge-found facts by themselves do not violate the Sixth Amendm ent. Instead, the constitutional error was the court’s reliance on ju dge-found facts to enhance [the defendant’s] sentence mandatorily .” Lauder , 409 F.3d at 1269; see also Dalton ,2 Banda explains this argument as follows: “The reme dial portion of Booker

. . . convert[s] the Guidelines from mandatory to a dvisory for the first time. In doing so the remedial portion . . . increased the m aximum penalty that may be constitutionally imposed from that in a mandatory s ystem—‘the maximum authorized by the facts established by a plea of gu ilty or a jury verdict’[—] to that applicable in an advisory system.” Appellant’s Br. at 55 (quoting Booker , 125 S. Ct. at 755). -12- 409 F.3d at 1252 (“Booker. . . does not render judicial fact-finding by a preponderance of the evidence per se unconstitution al.”). Additionally, we have held that neither constitutio nal nor non-constitutional Bookererror is structural. See United States v. Dowlin , 408 F.3d 647, 668-69 (10th Cir. 2005) (holding constitutional Bookererror is not structural); United States v. Gonzalez-Huerta , 403 F.3d 727, 732-33 (10th Cir. 2005) (en banc) (holding non-constitutional Bookererror is not structural). Sentencing in accordance with Bookeris therefore not error, much less structural error

.

III. Ex Post Facto and Due Process Banda next argues that the district court’s application of the remedial holding of Booker(rendering the Guidelines advisory) violates the C onstitution’s Ex Post Facto and Due Process Clauses by exposing h im to a sentence greater than what could be imposed under Booker ’s substantive holding alone. 2 This argument also fails for several reasons. First, Bo okeritself expressly stated that its holdings, including its remedial holding, apply to all cases on direct review.-13-

See Booker , 125 S. Ct. at 769 (in Justice Breyer’s majority o pinion in the remedial portion of the decision, stating “we must apply today’s holdings—both the Sixth Amendment holding and our remedial interp retation of the Sentencing Act—to all cases on direct review”). Second, our c ourt, along with every other circuit to address this argument, has rejected it. See United States v. Rines , 419 F.3d 1104, 1106 (10th Cir. 2005), cert. denied , 126 S. Ct. 1089 (2006); see also United States v. Wade , No. 05-2181, 2006 WL 73474, at *2 (8th Cir. Jan. 13, 2006); United States v. Vaughn , 430 F.3d 518, 524 (2d Cir. 2005); United States v. Dupas , 417 F.3d 1064, 1068 (9th Cir.), amended , 419 F.3d 916 (9th Cir. 2005); United States v. Jamison , 416 F.3d 538, 539 (7th Cir. 2005); United States v. Lata , 415 F.3d 107, 110-12 (1st Cir. 2005); United Stat es v. Scroggins , 411 F.3d 572, 576 (5th Cir. 2005); United States v. Duncan , 400 F.3d 1297, 1308 (11th Cir.), cert. denied , 126 S. Ct. 432 (2005).

IV. Preponderance of the evidence standard Banda articulates this issue as follows: “The tria l court violated [Banda’s] 6th Amendment right to trial by jury when it determ ined the facts that increased [his] sentence beyond the sentence that could have been imposed solely on the facts [Banda] admitted to during the change of pleahearing by a preponderance of the evidence standard rather than beyond a reasonab le doubt.” Appellant’s Br. at 58. We have essentially already addressed this arg ument. Our court has already3 Banda does not argue that his sentence is unreasona ble under Booker . We

therefore do not address that issue separately.

4 We deny Banda’s motion to abate this case pending t he Supreme Court’s decision in State v. Recuenco , 110 P.3d 188 (Wash.), cert. granted , 126 S. Ct. 478 (2005). -14- held that Bookerdoes not require sentencing factors to be proved b eyond a reasonable doubt. This panel is bound by that prec edent. 3

CONCLUSION For the forgoing reasons, Banda’s sentence is AFFIRMED. 4
ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge