* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### OCT 29 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DANNY RAY HILL, Defendant-Appellant. No. 97-6053 (W. District of Oklahoma) (D.C. No. CR-96-27-2-A)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This court therefore honors the parties’ requests and orders the case su bmitted without oral argument.-2-

Appellant Danny Ray Hill was charged with (1) consp iracy to distribute methamphetamine; (2) possession of methamphetamine with intent to distribute; and (3) maintaining a place for the purpose of manu facturing, distributing, and using methamphetamine. Hill pleaded guilty to poss ession of methamphetamine with intent to distribute, in violation of 21 U.S.C . § 841, and the other two counts were dismissed. The district court sentenced Hill to 121 months of imprisonment and five years of supervised release. The sentence was based on an adjusted offense level of thirty-two. Hill appeals the district court’s calculation of hi s sentence on three grounds. He contends that the district court erredin (1) determining the drug quantities used to calculate the base offense level ; (2) applying a two-level enhancement for possession of a firearm; and (3) fa iling to resolve the conflict between a five-year and ten-year mandatory minimum sentence. I. Drug Quantities Used to Calculate Base Offense Le vel At sentencing, the district court held Hill account able for (1) 69 grams of actual methamphetamine (with a marijuana equivalenc y of 690 kilograms) found at a Rock Creek Road residence; (2) 57 grams of act ual methamphetamine (with a marijuana equivalency of 570 kilograms) producible from chemicals found in a van Hill was driving; (3) 113 grams of actual methamphetamine (with a marijuana equivalency of 1130 kilograms) producible from chem icals found at his Sandra1 In his argument, Hill does not appear to dispute th e 18 ounces of

methamphetamine attributed to him based on the test imony of Mr. Laden, nor does he appear to dispute its marijuana equivalencyof 510.3 grams. Even if Hill were to dispute this amount, Mr. Laden’s testimony regarding the approximate amounts of methamphetamine he observed during drug transactions was sufficient to support the district court’s attribution of 18 o unces of methamphetamine to defendant. -3- Drive residence; and (4) 18 ounces of methamphetami ne (with a marijuana equivalency of 510.3 kilograms) based on the testim ony of John Robert Laden. In sum, the district court attributed a marijuana equi valency of 2900.3 kilograms to defendant. Based on this marijuana equivalency, th e district court held that Hill’s base offense level was thirty-two under U.S.S.G. § 2D1.1. Hill specifically challenges all the above drug qua ntities except the eighteen ounces of methamphetamine testified to by Mr. Laden. 1 In the alternative, Hill claims the district court imprope rly held that the 69, 57 and 113 grams were “actual methamphetamine,” rather than me thamphetamine, and the base offense level calculated by the court was thus too high. At sentencing, the government has the burden of pro ving drug quantities and types by a preponderance of the evidence. See United States v. Lande , 40 F.3d 329, 331 (10th Cir. 1994); United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994). A sentencing court may rely on estimat es of drug quantities as long as the estimates are “based on information with a mini mum indicia of reliability.”
See Deninno , 29 F.3d at 578. This court reviews the sentencin g court’s factual-4-

findings regarding the quantities of drugs attribut able to a defendant for clear

error. See United States v. Hardwell , 80 F.3d 1471, 1497 (10th Cir. 1996), reh’g on other grounds , 88 F.3d 897 (10th Cir. 1996); United States v. McKneely , 69 F.3d 1067, 1078 (10th Cir. 1995). The district court’s findings concerning the sixty- nine grams of methamphetamine found at the Rock Creek Road reside nce are not clearly erroneous. Michael Wayne Childers, a forensic chem ist for the Oklahoma State Bureau of Investigation, testified that methampheta mine was present in two liquids found at the Rock Creek Road residence. Fu rthermore, he described how the methamphetamine could be converted to powder fr om the liquids and testified that sixty-nine grams of “actual methamphetamine” c ould be extracted from the liquids. In light of Mr. Childers’ testimony, the sentencing court did not clearly err in determining the above drug quantity. Because there was testimony that the amount was pur e methamphetamine, the court further did not clearly err in finding th e sixty-nine grams constituted “actual methamphetamine” with a marijuana equivalen t of 690 kilograms. See U.S.S.G. § 2D1.1 Application Note 10. In addition, despite Hill’s contention that he was merely present at the Rock Creek Road reside nce and was not involved in the manufacture of methamphetamine, there is suffic ient basis in the record for the district court to hold him accountable for the methamphetamine found at the2 Hill’s only challenge to the adjustments made to hi s base offense level is

addressed below. Hill does not challenge his crimi nal history category. -5- residence: he was arrested at the Rock Creek Road residence; his fingerprints were on laboratory equipment found at the residence ; and testimony linked him to the manufacture of methamphetamine with codefend ant Leslie Monson. While defendant also challenges his accountability for and the quantity of methamphetamine producible from the precursor chemi cals found in his van and at his Sandra Drive residence, this court need not consider these challenges because the additional quantities would not affect Hill’s base offense level. Together, the sixty-nine grams of actual methamphet amine found at the Rock Creek Road residence and the eighteen ounces of methamphetamine testified to by Mr. Laden produce a marijuana equivalence of 1200.3 kilograms (690 kilograms + 510.3 kilograms). Section 2D1.1(c) of the Senten cing Guidelines sets the base offense level at thirty-two when the defendant is held accountable for “[a]t least 1,000 KG but less than 3,000 KG of Marihuana.” U.S .S.G. § 2D1.1(c). Hill’s base offense level is thus thirty-two regardless of the methamphetamine producible from chemicals found in his van and his Sandra Drive residence. Given Hill’s base offense level, the adjustments ma de to that level by the district court, and his criminal history category, the Sentencing Guidelines provide an incarceration period of 121-151 months. 2 See U.S.S.G. § Fifth-6-

Amendment tbl. Hill received the lowest sentence w ithin this range, 121 months. As a consequence, he cannot argue that the addition al methamphetamine attributed to him negatively impacted his sentence. We therefore affirm the district court’s determination of Hill’s base offen se level.
II. Enhancement for Possession of Firearm Hill contends the district court erred in applying a two-level enhancement for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). The gun was found during a traffic stop in February 1996. Hill argues the weapon enhancement is inapplicable because he did not poss ess the firearm during the crime for which he was convicted, possession of methamphetamine with intent to distribute in September and November of 1995. This court reviews the trial court’s factual findin gs at sentencing for clear error, while we review the trial court’s legal inte rpretation of a Sentencing Guideline de novo

. See United States v. Earls , 42 F.3d 1321,1326 (10th Cir. 1994). Section 1B1.3 of the Sentencing Guidelines requires courts to consider relevant conduct when sentencing a defendant. See U.S.S.G. § 1B1.3. In United States v. Roederer , 11 F.3d 973 (10th Cir. 1993), this court held that the relevant conduct provision of the Sentencing Guidelines appl ies to weapons enhancements under § 2D1.1(b)(1). See id . at 982. Thus, in evaluating whether the-7-

enhancement should be applied, the sentencing courtlooks not only at the offense of conviction but also at all acts “‘that were partof the same course of conduct or common scheme or plan as the offense of conviction. ’” See id . (quoting U.S.S.G. § 1B1.3(a)(2)); see also United States v. Falesbork, 5 F.3d 715, 720 (4th Cir. 1993) (“Even when a guilty plea is entered on a sin gle count of possession, the court must nevertheless look to the entire relevantconduct in determining the sentence. That conduct includes . . . . possession of a gun while engaging in drug sales related to, though distinct from, the crime o f conviction.” (citations omitted)). In order to establish weapon possession, the govern ment must prove by a preponderance of the evidence “‘that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.’” Roederer , 11 F.3d at 982 (quoting United States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993)). The necessary proximity is generally estab lished by “‘evidence that the weapon was found in the same location where drugs o r drug paraphernalia are stored or where part of the transaction occurred.’” Id. at 983 (quoting United
States v. Hooten , 942 F.2d 878, 882 (5th Cir. 1991)). Officer Robert Negri testified that during the February traffic stop, a shotgun was found next to the driver’s seat of the van and the vehicle also contained chemicals and equipment for manufacturing methamphetamine. The-8-

district court found the conduct of Hill and the va n’s passengers was “closely related to the offense of conviction,” and identifi ed the intended sale of contraband as a “common thread.” The court furtherfound that Hill was, at a minimum, in joint possession of the weapon and that , as driver of the van, Hill was situated “better than anyone else to brandish the weapon.” Based on the record, these findings are not clearly erroneous. Because the district court found the weapon was pos sessed during conduct closely related to the offense of conviction, the w eapon enhancement is applicable. The government need not show the weapo n was possessed during the offense to which defendant pleaded guilty. Therefo re, this court affirms the twolevel weapon enhancement. III. Conflict as to Mandatory Minimum Incarceration Period Hill entered his guilty plea to possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841, on June 26, 1996. At that time, the district court advised him the mandatory minimum se ntence of incarceration for his offense was five years and the maximum punishme nt that could be imposed was forty years in prison, a fine, and supervised r elease. In December 1996, a revised Presentence Investigation Report stated that the offense carried a mandatory sentence of not less than ten years nor m ore than life imprisonment. Hill claims that this change in the mandatory minim um and maximum terms of-9-

imprisonment is a result of this court’s decision i n United States v. Richards , 87 F.3d 1152 (10th Cir.) (en banc), cert. denied, 117 S. Ct. 540 (1996). Richards was decided after Hill pleaded guilty but prior to his sentencing. Based on these facts, Hill makes two arguments: (1) the applicati on of Richards is a violation of the Ex Post Facto Clause of the Constitution and (2 ) the district court’s failure to properly advise him of the mandatory minimum and maximum penalties violated Rule 11(c) of the Federal Rules of Criminal Procedu re and rendered his plea involuntary. Defendant’s ex post facto argument is appropriatelyframed as a due process issue. The Ex Post Facto Clause is a limitation upon the powers of the Legislature and does not of its own force apply to the Judicial Branch of government. Petitioner’s claims arise out of ju dicial interpretation of a statute, and therefore, his rights derive from the Due Process Clause. Because, however, an unforeseeable judicia l enlargement of a criminal statute, applied retroactively, operates precisely like anex post facto law, we apply ex post facto principles to decide t he due process issue. Lustgarden v. Gunter , 966 F.2d 552, 553-54 (10th Cir. 1992) (citations and quotations omitted). The relevant inquiry for this court under due process analysis is whether the change in this court’s inte rpretation of 21 U.S.C § 841 was foreseeable. See id. at 554. If the interpretive change was foreseeabl e, it does not violate defendant’s due process rights. See id. The fact that this court relied on the “plain meaning” of the language in § 841 whe n it decided Richards is-10-

evidence of the decision’s foreseeability. See id. ; see also Richards , 87 F.3d at
1157. We need not address the foreseeability of Richards , however, because we conclude Richards had no impact on defendant’s sentencing. Richards held that liquid by-products containing methamphetamine constitute a “mixture or substance” for purposes of 21 U.S.C. § 841(b) and, therefore, the entire weight of the liquid by-produ cts should be included in determining a defendant’s statutory minimum and max imum sentences. See Richards , 87 F.3d at 1157. Because Richards only addresses the determination of statutory minimum and maximum sentences, it does no t affect the calculation of drug quantities under the Sentencing Guidelines, no r does it impact a defendant’s sentence unless the applicable Sentencing Guideline range falls above the statutory maximum or below the statutory minimum. Under the Sentencing Guidelines, the district court properly determined that Hill had an adjusted total offense level of thirty-two with an incarceration r ange of 121-151 months. Thus, regardless of whether the statutory mandatory minim um was five years or ten years, under the Guidelines the minimum sentence Hi ll could have received was 121 months, absent exceptional circumstances which are inapplicable here. Because 121 months is greater than both the five an d ten-year statutory mandatory minimums under 21 U.S.C. § 841(b), Richards had no effect on Hill’s sentencing.-11-

Defendant’s ex post facto challenge to the applicab ility of Richards is therefore irrelevant. Hill also asserts that the district court violated Rule 11(c) of the Federal Rules of Criminal Procedure by failing to properly advise him of the accurate minimum and maximum punishments at the time he ente red his guilty plea. At the plea hearing, the prosecutor informed the distr ict court that the statutory mandatory penalty was not less than five years nor more than forty years, but did not provide the court with information regarding th e attributable drug quantities which ultimately determine the statutory penalty. Relying on the information provided by the prosecutor, the district court thenadvised defendant of these statutory minimum and maximum penalties. However, based on the quantity of drugs attributed to Hill at the sentencing hearing, higher mandatory minimum and maximum sentences were applicable. Rule 11(c) provides, in part, that [b]efore accepting a plea of guilty or nolo contend ere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant unde rstands the . . . nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the ma ximum possible penalty provided by law . . . . F.R.C.P. 11(c). Thus, erroneous information regard ing the minimum and maximum mandatory sentences violates Rule 11(c).3 Hill made a written objection to the higher statuto ry minimum and

maximum sentences cited by the Presentence Investig ation Report on the ground that they were inconsistent with the statutory sent ences he was advised of during his plea hearing; however, he did not contend that these higher sentences rendered his plea involuntary, nor did he move to withdraw h is plea. -12- It appears that Rule 11(c) was violated. A violati on of Rule 11(c), however, does not necessarily render defendant’s pl ea involuntary. Rule 11(h) requires this court to apply a harmless error analy sis, providing that “[a]ny variance from the procedures required by [Rule 11] which does not affect substantial rights shall be disregarded.” F.R.C.P. 11(h). Rule 11(h) requires a defendant to demonstrate that knowledge of the omitted or inaccurate information “‘would have changed his decision to plead guilty.’ ” United States v. Wright , 930 F.2d 808, 810 (10th Cir. 1991) (quoting United States v. Gomez-Cuevas , 917 F.2d 1521, 1527 (10th Cir. 1990)). The record contains no evidence Hill would have changed his plea had he known that ten years was the mandatory statutory mi nimum. Hill was aware that the Presentence Investigation Report calculated his mandatory statutory minimum sentence at ten years. 3 At the sentencing hearing, his own counsel expres sly recognized that 121 months was the minimum applicab le sentence. After determining the drug quantities attributable to Hil l, the district court took a recess during which time defendant had an opportunity to t alk to his counsel. When the court reconvened, both defendant and his counsel we re asked if they had anything-13-

to add after the court calculated the adjusted offe nse level; each responded in the negative. Similarly, neither of them when asked of fered a reason why the sentence should not be imposed at that time. Thus, despite ample opportunities during the sentencing hearing, Hill never contestedthe higher minimum sentence on the ground that it rendered his plea involuntary , nor did Hill suggest that he wished to withdraw his guilty plea. Further, Hill was aware at the time he pleaded guil ty that his punishment would be determined in accordance with the Sentenci ng Guidelines. Before accepting Hill’s guilty plea, the district court pr operly instructed him that this case was subject to the Federal Sentencing Guidelin es. The sentence Hill actually received, 121 months of incarceration followed by s upervised release, was based on the Sentencing Guidelines, and was not affected by the statutory minimum and maximum penalties. Under the Guidelines, the minim um sentence Hill could have received was 121 months. Because 121 months is gre ater than both the five and ten-year statutory mandatory minimums under 21 U.S. C. § 841(b), the statutory mandatory minimum had no impact on his sentence. Ad ditionally, the 121 month sentence is within the five to forty-year statutoryrange disclosed to-14-

Hill by the district court at the time he entered h is guilty plea. As a consequence, any violation of Rule 11(c) was harmless error. The judgment of the district court is AFFIRMED

. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge