* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

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

### AUG 4 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TODD CHRISTOPHER MANN, Defendant - Appellant. No. 02-6295 (D.C. No. CR-01-23-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges.

Defendant-Appellant, Todd Christopher Mann, challen ges his conviction on direct appeal, arguing that neither his guilty pleanor his waiver of appeal in his plea agreement should be binding because the govern ment acted in bad faith to circumvent the agreement’s terms. The government s ubmits a motion to dismiss for lack of jurisdiction, but waivers of appeal are not jurisdictional. We instead- 2 -

evaluate waivers of appeal under the principles of contract. See generallyUnited States v. Black , 201 F.3d 1296, 1300 (10th Cir. 2000) (discussing waivers of appeal). “Whether government conduct has violated a plea agr eement is a question of law which we review de novo.” United States v. Hawley , 93 F.3d 682, 690 (10th Cir. 1996). In evaluating allegations of a b reach of agreement, we examine the nature of the promise made, and do so in light of a defendant’s reasonable understanding of the promise at the time he plead g uilty. United States v. Brye , 146 F.3d 1207, 1210 (10th Cir. 1998); United States v. Peterson , 225 F.3d 1167, 1170-71 (10th Cir. 2000). We find no evidence of b ad faith or breach of promise in the government’s actions, and hold defendant’s w aiver of his appeal to be binding. On February 6, 2001, Mann was charged with a five-c ount indictment for drug-related crimes. On November 8, 2001, pursuantto an agreement with the federal government, Mann plead guilty to a single c harge of conspiracy to manufacture, possession with intent to distribute, and distributing fifty grams or more of a mixture or substance containing a detecta ble amount of methamphetamine in violation of 21 U.S.C. §841(a)(1 ). Mann specifically agreed1 The language of Mann’s waiver of his right to app eal was:

Defendant understands that a sentencing guideline r ange for his case will be determined by the Court under guidelines is sued by the U.S. Sentencing Commission. Defendant also understands that the Court has jurisdiction and authority to impose any senten ce within the statutory maximum for the offense(s) to which he is pleading guilty. Defendant further understands that Title 18, United States Code, Section 3742, gives him the right to appeal the jud gment and sentence imposed by the Court. Acknowledging all t his, defendant in exchange for the promises and concessions made by the United States in this plea agreement, knowingly and voluntarily w aives his right to appeal or collaterally challenge: a. Defendant’s guilty plea and any other aspect of his conviction, including but not limited to any ruling s on pretrial suppression motions or any other pretrial dispositi ons of motions and issues. b. Defendant’s sentence as imposed by the Court an d the manner in which the sentence is determined, provide d the sentence is within or below the applicable guideline range dete rmined by the Court to apply to this case, even if the Court reje cts one or more of the positions of the United States or the defendantset forth in paragraph 7 concerning the application of the U.S. Sentencing Guidelines; provided that(i) defendant specifically does not waive the right to appeal an upward departure from the se ntencing guideline range determined by the Court to apply to this case , and (ii) his waiver of rights to appeal and to bring collateral challenges shall not apply to appeals or challenges based on changes in the law reflected in Tenth Circuit or Supreme Court cases decided aft er the date of this agreement which are held by the Tenth Circuit or Supreme Court to have retroactive effect. (Plea Agreement ¶ 8, ROA Doc. No. 44 [hereinafter P lea Agreement].) - 3 - to waive his right to appeal. 1 He was sentenced at the bottom of the guideline range to 263 months. (Sentencing Tr. Vol. II at 18 3.)2 The text of U.S.S.G. §3B1.1(b) reads:

Based on the defendant’s role in the offense, incre ase the offense level as follows: . . . (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

3 The text of U.S.S.G. §3B1.1(c) reads: If the defendant was an organizer, leader, manager or supervisor in any criminal activity other than described [above], increase by 2 levels. - 4 - As part of the plea agreement, the government infor med Mann in relevant part that it intended to present evidence at his se ntencing to the effect that: (1) the government was aware that Mann was responsible for 1.5 kilograms or more of actual methamphetamine; and (2) the government was aware of factors that might cause Mann’s offense level to be enhanced for being a manager or supervisor of a criminal activity that involved five or more partic ipants under U.S.S.G. §3B1.1(b), 2 or to be enhanced for being an organizer, leader, manager, or supervisor of other criminal activity under U.S.S.G . §3B1.1(c). 3 (Plea Agreement ¶7, ROA Doc. No. 44 [hereinafter Plea Agreement].) The government further reserved the right to inform the probation office a nd the court of all other activities the government deemed relevant to senten cing. (Id. at ¶17.) Mann noted his objection to the two positions indicated, but signed the agreement in full. (Id. at ¶19.)4

Question: Using [the substance you had manufactured] , did you, in fact,

know that what you had cooked was, in fact, methamphetamine? Defendant: I would say “Yes.” Yes, ma’am. Question: If a chemist had been able to analyze the substance that you

cooked on those occasions at the Brighton Apartment s, would have you any dispute with a statement that it was, in fact, methamphetamine that you manufactured? Defendant: No, I wouldn’t have a dispute with that. No. (Plea Colloquy at 10.)

5 Mann concedes that the district court properly ha d the power to conduct this hearing and determine the quantity and purity of methamphetamine “by use of circumstantial and historical evidence.” (Aplt. Br . at 17.) - 5 - Mann and the government also negotiated over the la nguage of his Presentencing Report (PSR). Mann admitted that the government could attribute 3.3 kilograms (3300.65 grams) of mixed product meth amphetamine to him. (Aplt. Br. at 6; Aple. Br. at 3.) They disagreed, however , about the purity of the 3.3 kilograms for an undetermined yield of pure methamp hetamine. Mann admitted in his plea colloquy that the 3.3 kilograms of subs tance was methamphetamine, 4 but neither party had the drug tested in a laborato ry for its degree of purity. On August 19, 2002, the district court heard arguments on purity at Mann’s sentencing. 5 At sentencing, the government introduced testimony from three witnesses. The first witness, Andres Torres Sanchez, testifiedthat he had cooked methamphetamine with Mann, and described in detail the recipe they used. (Dist.- 6 -

Ct. Op. at 2.) Sanchez had ingested the methamphet amine they cooked and described it as of “good quality” and having a puri ty of “nine” on a scale of one to ten. (Id. ) The second witness called by the government was Inspector Mark Danner of the Oklahoma City Police Department, a ve teran law enforcement officer with fourteen years of experience in narcot ics. (Id. ; Sentencing Tr. Vol. 1 at 43.) Inspector Danner testified that the pseudo ephedrine/red phosphorous reduction method Sanchez had described was the pred ominant method to cook methamphetamine in the area, and that the purity of methamphetamine on the streets in Oklahoma was typically between fifty-sev en and ninety-six percent. (Dist. Ct. Op. at 2-3.) The final witness called b y the government was Lori Ann Callaway. Callaway testified that she had used the methamphetamine cooked by Mann and that his product was “good,” “very good,” and “ten” on a scale of one to ten. (Id. at 3.) Mann called one witness to testify on his behalf. Gene Gietzen, a forensic scientist and owner of a consulting firm in Missour i, testified that the purity of illegal methamphetamine in his own experience range d from four percent to the “high eighties.” (Id. ) He also noted that the Drug Enforcement Administration’s website recorded the average purity of illegal meth amphetamine submissions to be thirty-five percent in 2000, and forty percent in 2 001. (Id. ) On crossexamination, however, Gietzen admitted that a highl y-regarded article by Forensic- 7 -

Science International in 1991 had found the general ly accepted purity level of methamphetamine produced by clandestine laboratorie s to be ninety-five percent. (Id. at 3-4.) The district court ultimately found that the govern ment had proven by a preponderance of the evidence that the methamphetam ine Mann produced was at least fifty-seven percent pure, the lowest level of purity in Oklahoma and well within the range given by Mann’s defense expert as comporting with his personal experience. (Id. at 6.) If the 3.3 kilogram mixture were fifty-sev en percent pure, Mann would be responsible for 1.88 kilograms of methamphetamine. (Id. at 7.) This gave him an offense level of 39, and a sentenc ing range of 262 to 327 months. (Id. ) Mann now alleges that he should not be bound by his waiver of appeal because the government acted in bad faith at the he aring on two issues. First, Mann alleges that, despite agreement in the PSR that Mann would be responsible for 3.3 kilograms of mixed substance, the government solicited testimony from its witnesses regarding additional quantities of methamphetamine he was responsible for manufacturing in addition to the purity of his mixture. (Aplt. Br. at 9.) During the hearing, the government asked Sanchez ho w many cases of pseudoephedrine would make a pound of methamphetami ne. (Sentencing Tr. Vol. I at 28.) The government also asked Inspector Dann er how much- 8 -

methamphetamine Mann manufactured at one time and h ow it was distributed to others. (Id. at 48-49.) Mann objected both times at the hearin g that quantity was not at issue. The government explained that the am ount of pseudoephedrine added to the mixture, as well as the amount of the methamphetamine manufactured at one time could be relevant to the q uestion of purity. (Id. at 29, 48-49.) The district court overruled Mann’s object ions and permitted the testimony. (Id. at 29, 49.) Second, Mann alleges that, despite the fact that th e government had warned him in the PSR only about information it had gleane d from Callaway about Mann’s potential leadership role, the government so licited testimony at the sentencing hearing regarding Mann’s role in the con spiracy to manufacture, possess, and distribute methamphetamine from other sources as well. (Aplt. Br. at 12.) During the hearing, Sanchez testified thatMann had led or organized at least five other people in addition to Callaway. ( Id. ; Sentencing Tr. at 33-36.) The district court overruled Mann’s objection to th is testimony and permitted the government to use it in supporting the sentencing e nhancement for a leadership role under U.S.S.G. §3B1.1(b) or (c). (Sentencing Tr. at 33, 37.) We hold that neither of Mann’s allegations demonstr ates that the government acted in bad faith or breached the terms of the agreement. As the district court found, the few references to quantity in witness’ testimony were- 9 -

relevant to the question of purity, especially give n the detail of information presented about the recipes involved. Finally, alt hough it would have been preferable for the government to have warned Mann a bout the testimony Sanchez would give about leadership, we find no violation o f the terms of the plea agreement at the time Mann plead guilty. Brye , 146 F.3d at 1210; Peterson , 225 F.3d at 1170-71. Sanchez’s testimony about leaders hip does fall into the general category of information that the government warned Mann it intended to present in the plea agreement. The evidence properly shed light on whether Mann’s offense level should have been enhanced for having an important leadership role under U.S.S.G. §3B1.1(b) or (c). (Plea Agreement at ¶7); cf. also United States v. Hand , 913 F.2d 854, 856-57 (10th Cir. 1990) (holding th at the government is not obliged to “stand mute in the face of incorrect or misleading testimony offered before the trial court”). Accordingly, we hold Mann to the terms of his waive r of appeal and AFFIRM his conviction. The government’s motion is DISMISSED as moot.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge