* This order and judgment is not binding precedent, e xcept under the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

### NOV 15 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITE STATES OF AMERICA,

Plaintiff-Appellee,

v. PETER PAUL CASTRO,

Defendant-Appellant. No. 01-3128 (D.C. No. 98-CR-40096-01-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist 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-

Defendant Peter Paul Castro appeals his seventy-eig ht month sentence imposed upon the court’s finding that his relevant conduct encompassed sales of ten pounds of amphetamine. We affirm. On June 29, 1998, drug dealer Steve Simmons was arr ested with slightly less than a pound and a half of a substance believe d by Simmons to be methamphetamine. Subsequent testing revealed that the substance was actually amphetamine. On June 30, 1998, based on informatio n provided by Simmons, defendant was arrested on charges of conspiring with Simmons to supply him with methamphetamine and with possession of amphetamine. When Simmons was interviewed in October 1998 by Kansas Bureau of Inv estigation Special Agent Kathy Bottorf, he told her that he sold methampheta mine for Castro; that he would generally obtain two or more ounces from Castro; that he obtained methamphetamine between a couple of times a week an d a couple of times a month; and that he estimated that he had received approximately ten pounds of methamphetamine from Castro over time. He gave con sistent testimony at a hearing before the grand jury that indicted Castro. Castro eventually pled guilty to one count of consp iracy to distribute amphetamine in return for the government’s promise to dismiss the original charges; to limit its evidence of relevant conduct to no more than ten pounds of amphetamine; to recommend a three-level downward ad justment for acceptance of-3-

responsibility; and to refrain from objecting to de fendant’s motion for release pending sentencing. Defendant objected both to the presentence report recommendation that he be held accountable for ten pounds of amphetamine, and to testimony at the sentencing hearing regarding th e quantity that would be counted as relevant conduct. Simmons testified at the sentencing hearing, but st ated that he could not remember many of the statements that he allegedly m ade to Special Agent Bottorf, and that some of the statements were incor rect. He did, however, remember stating that the total amount of drugs rec eived from defendant was approximately ten pounds, and testified at the hear ing that the actual amount could have been anywhere from three to ten pounds. See R., Vol. III at 27 (estimating amount as five to ten pounds, then thre e to ten pounds); at 30-31 (estimating amount as eight to ten pounds overall). He also testified that he had reason to fear that his testimony against Castro wo uld endanger his wife and children. Special Agent Bottorf testified at the h earing, stating that when Simmons gave his statements he appeared lucid and c oherent and did not appear to be under the influence of drugs. The district c ourt found Simmons’ testimony regarding the amount of drugs involved to be credib le and sentenced defendant based on relevant conduct encompassing ten pounds o f amphetamine.-4-

On appeal, defendant argues that Simmons’ testimonywas too unreliable to support the court’s sentence because Simmons was anaddict and an interested witness, he was under the influence of drugs when h e made the statements to Special Agent Bottorf, his hearing testimony was co ntradictory, and his memory was impaired by years of drug abuse. Defendant als o argues that the standard for determining relevant conduct should be by clear and convincing evidence, based on the policies set forth in Apprendi v. New Jersey , 530 U.S. 466 (2000). We note initially that the Supreme Court’s decision in Apprendiis not relevant to this case. Apprendiapplies when a defendant is sentenced beyond the ten-year statutory maximum, which did not occur her e. Pursuant to Tenth Circuit authority, relevant conduct need only be proved by a preponderance of the evidence. United States v. Fortier , 180 F.3d 1217, 1225 (10th Cir. 1999). We review the district court’s determination of the am ount of drugs to be attributed to defendant for clear error, giving deference to the court’s credibility determinations. See United States v. Hooks , 65 F.3d 850, 854 (10th Cir. 1995). “We will not disturb a district court’s factual fin ding [regarding drug quantity] unless it has no support in the record or, after re viewing all the evidence, we are firmly convinced that an error has been made.” Id. (quotations omitted). Defendant’s arguments go to the weight of the evide nce, which was determined by the district court after a hearing. The record contains sufficient-5-

evidence to support the district court’s determinat ion that Simmons’ estimate of ten pounds of drugs was credible and reliable, incl uding Simmons’ consistent testimony to Special Agent Bottorf and the grand ju ry; his estimate at the hearing that the amount could have been up to ten pounds; h is testimony at the hearing that he was not under the influence of drugs when h e met with Special Agent Bottorf; the special agent’s testimony that Simmons was lucid and coherent at his interview; Simmons’ confirmable information that de fendant supplied him with the drugs; and the possibility that Simmons was rel uctant to testify against defendant at the hearing because he feared for his family. On this record we will not disturb the district court’s credibility determ ination. We therefore conclude that the court did not clearly err in accepting Sim mons’ ten-pound estimate for sentencing purposes. See id. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Wade Brorby Senior Circuit Judge