* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 

### October 21, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ROBERT EUGENE CONNER, Defendant - Appellant. No. 04-5128 (D.C. No. CR-03-168-1-P) (N.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , Circuit Judge, McWILLIAMS , Senior Circuit Judge, and KELLY , Circuit Judge.

Defendant-Appellant Robert E. Conner, Jr., appeals from his conviction and sentence for knowingly maintaining a place for the purpose of manufacturing, distributing, or using a controlled substance, 21 U .S.C. § 856(a)(1) and (b)(1). He was sentenced to 97 months imprisonment followedby three years of supervised release. On appeal, he challenges (1) the denial of his motion for a judgement of acquittal based on the sufficiency of evidence, (2) the admission- 2 -

into evidence guns found in his home, and (3) the d istrict court’s finding of facts and use of the United States Sentencing Guidelines when calculating his sentence. Our jurisdiction arises under 28 U.S.C. § 1291 and 28 U.S.C. § 3742(a), and we affirm the conviction but remand for resentencing.

Background A confidential informant first alerted Tul sa Police Officer Brian Comfort of suspected drug dealing at a home located at 9765 Ea st Fifth Street in Tulsa, Oklahoma. For approximately four days, the officer conducted surveillance of the home and witnessed 15 to 20 short-term visitors, su ggesting short-term drug traffic. The morning of September 4, 2003, a searc h warrant was executed on the home. Entering the home, Officer Comfort smelled strong c hemical odors which he immediately associated with a methamphetamine la b. The odor grew stronger as he approached and entered the garage. Other off icers present at the time of the search confirmed the presence of a strong chemical odor which they associated with a methamphetamine lab. Shortly after entering the home, police officers apprehended Mr. Conner, an 18 month occupant of the home. Searching the kitchen and garage, police discovered methamphetamine production equipment, precursor chemicals, and othe r ingredients commonly used- 3 -

to manufacture methamphetamine. A search of Mr. Conner’s bedroom produced a bag containing marijuana, drug paraphernalia, and a 2000 milliliter Pyrex rou nd-bottom flask. In Mr. Conner’s bedroom closet, police found a loaded 16-g auge pistol-gripped shotgun, a loaded .22-caliber semi-automatic rifle with a sc ope, a 9mm semi-automatic pistol, and ammunition. A search of the bedroom associated with Daniel Wrig ht, Mr. Conner’s roommate of approximately six weeks, produced a mar ijuana cigarette, pseudoephedrine pills in a bottle, drug notations, and eight guns. At trial, Officer Comfort and Tulsa Police Sgt. Har old Adair testified that taking the evidence as a whole, a methamphetamine l ab existed at the residence. They also testified that the quantity of methamphet amine mixture seized, 44.50 grams, in combination with the presence of scales and baggies, indicated methamphetamine distribution, rather than personal use. Both officers have extensive training and field experience in the inve stigation of clandestine methamphetamine labs.

Discussion A. Sufficiency of the Evidence Mr. Conner moved for a judgment of acquittal after the close of the- 4 -

government’s evidence and after the close of all th e evidence. Fed. R. Crim. P. 29. The district court denied both motions. Afterthe guilty verdict, Mr. Conner unsuccessfully renewed his motion. A motion for judgment of acquittal effectively chal lenges the sufficiency of the evidence. In reviewing the evidence, our revie w is de novo and we ask only whether, taking the evidence – both direct and circ umstantial, together with the reasonable inferences to be drawn therefrom – in th e light most favorable to the government, a reasonable jury could find the defend ant guilty beyond a reasonable doubt. United States v. Scull , 321 F.3d 1270, 1282 (10th Cir. 2003). We neither weigh conflicting evidence, nor considerthe credibility of witnesses. United States v. Shepard , 396 F.3d 1116, 1119 (10th Cir. 2005). Our task i s to determine whether the evidence, if believed, would establish each element of the crime. Id. We may overturn a jury verdict only if no reasona ble juror could have reached such a verdict. Id. In order to convict Mr. Conner under 21 U.S.C. § 865(a)(1), the government was required to prove beyond a reasonabl e doubt that he knowingly opened or maintained a place for the purpose of man ufacturing, distributing, or using a controlled substance. Scull , 321 F.3d at 1284. Sufficient evidence exists to support the conviction. The government provided sufficient evidence to supp ort the knowingly- 5 -

“maintained a place” element of the statute. Where the “place” in question is a residence, the defendant must have a “substantial c onnection” to the home and must be more than a “casual visitor.” United State s v. Verners , 53 F.3d 291, 296 (10th Cir. 1995). When the defendant lives in the house, this element is normally easily proved. Id. Although Mr. Conner did not own this home, he liv ed there continuously for 18 months and clearly exercised do minion and control over it. Thus, he knowingly maintained a place within the me aning of the statute.
In Verners , this court addressed what constitutes “for the pu rpose of” within the context of the statute. We concluded th at, at least in the residential context, the manufacture, distribution or use of drugs must be at least one of the primary or principal uses to which the house is put . Id. We drew upon the business analogy test developed by the Seventh Circ uit, in United States v. Banks , 987 F.2d 463 (7th Cir. 1993), to further interpret “for the purpose of:” [T]he more characteristics of a business that are p resent, the more likely it is that the property is being used “for the purp ose of” those drugs prohibited by § 865(a)(1). Evidence that a place i s being used to run such a business might include: investment in the to ols of the trade (e.g., laboratory equipment, scales, guns and ammunition t o protect the inventory and profits); packaging materials (baggie s, vials, gelcaps, etc.); financial records; profits (either in the fo rm of cash or in expensive merchandise); and the presence of multipl e employees or customers. 53 F.3d at 296-97. We made clear that the defendan t must personally have the specific purpose to maintain a place for manufactur ing, distributing, or using a- 6 -

controlled substance; it is not sufficient for othe rs to possess it. Id. at 297-98. “[O]ne way to tell whether a defendant had the requ isite mental purpose under (a)(1) is to decide whether he acted as a superviso r, manager, or entrepreneur in the drug enterprise, as opposed to someone who mere ly facilitated the crime.” Id. at 296 (citing Banks , 987 F.2d at 466-67) (internal quotations omitted)

. The government provided sufficient evidence that Mr . Conner’s residence was being used to run a methamphetamine manufacturi ng and distributing business. Officer Comfort and Sgt. Adair testifiedthat tools of this trade were discovered throughout the house. An abundance of m ethamphetamine manufacturing equipment, precursor chemicals, and o ther necessary ingredients were found throughout the kitchen and garage. Guns and ammunition were discovered in the bedrooms of Mr. Conner and Mr. Wr ight. Scales and packaging materials in the form of small, clear zip-lock bagg ies were also found. Although no customers were present when the police searched Mr. Conner’s home, trial testimony established the exis tence of a customer base. Officer Comfort testified that during his surveillance of Mr. Conner’s home, he witnessed 15 to 20 short-term visitors, which basedon his experience and training, were indicative of the sale of drugs at t he residence. Three witnesses also testified that they visited Mr. Conner’s home where they used or purchased drugs. Moreover, Sgt. Adair and Officer Comfort te stified that the quantity of- 7 -

methamphetamine mixture seized from the kitchen, 44 .50 grams, in combination with the presence of scales and baggies, indicated it was being used for distribution, rather than personal use. The government also provided sufficient evidence th at Mr. Conner personally had the specific purpose to maintain his home for manufacturing and distributing methamphetamine. Adam Tanner testifie d that in the summer of 2003, he went to Mr. Conner’s residence and sold hi m one and a half pounds of phosphorous acid flakes, a precursor chemical used to manufacture methamphetamine. Approximately one week before pol ice searched the residence, Mr. Tanner returned to Mr. Conner’s resi dence with a one pound bag of flakes which he sold to both Mr. Conner and Mr. Wright. Heather Coats also testified that Mr. Conner provided her and her frie nds methamphetamine during their visits to his home. In addition, Mr. Conner maintained three firearms in close proximity to these activities. Taken togethe r, this evidence permits the inference that Mr. Conner was an “entrepreneur” in the methamphetamine manufacturing and distributing business, not a mere facilitator, and that he personally maintained his residence for such purpos es. Cf. Verners , 53 F.3d at 297 (overturing the conviction of a mother under § 865(a)(1), who resided in a residence with her drug dealing son, because the go vernment failed to provide evidence she occupied more than a minor role as a f acilitator in her son’s drug- 8 -

business). Mr. Conner argues that a business analogy is wantin g due to a lack of present employees or customers, financial records c oncerning distribution, and sums of cash showing sales, and no evidence of mult iple employees or customers. Aplt. Br. at 14. For several reasons, we cannot ac cept this contention. First, as noted, the government provided evidence of a custom er base. The absence of individual customers or employees in the residence during the morningpolice search does little to cast doubt on that evidence. Second, establishing the business analogy employed in Verners does not require the presence of every business characteristic provided therein. See id. at 297. Nor is the list of examples provided exhaustive. Id. Rather, we explained that “the more characteristics of a business that are present, the more likely it is that the property is being used ‘for the purpose of’ those drugs proh ibited by § 865(a)(1).” Id. at 296-97. B. Admission of Guns Found in the Home Mr. Conner objected to the admission of the guns re covered from his bedroom and Mr. Wright’s bedroom on the grounds that they were not relevant to the crime charged in the indictment and their admis sion would be unfairly prejudicial. The district court overruled his obje ctions and found that the evidence was admissible under Fed. R. Evid. 404(b), and not unfairly prejudicial.- 9 -

We review a district court's decision to admit evid ence for abuse of discretion, U.S. v. Samaniego , 187 F.3d 1222, 1223 (10th Cir. 1999), and we can affirm if the evidence was admissible regardless of the reasoning given by the district court. U.S. v. Robinson , 978 F.2d 1554, 1562 (10th Cir. 1992). While we are somewhat dubious as to whether possession of lo aded firearms constitutes 404(b) evidence, there can be little question that the guns were admissible in the context of this case to prove the crime charged. We have held on several occasions that the presence of loaded weapons, espe cially in close proximity to drugs and/or drug paraphernalia, is probative as “t ools of the trade.” See United States v. Becker , 230 F.3d 1224, 1231 (10th Cir. 2000); see also Verners , 53 F.3d at 297 (in the context of the business analogy disc ussed supra , “[e]vidence that a place is being used to run such a business might in clude . . . guns and ammunition to protect the inventory and profits”). Drug deale rs may, in fact, carry weapons to protect their merchandise, their cash receipts, and to intimidate prospective purchasers. United States v. Nicholson , 983 F.2d 983, 990 (10th Cir. 1993). Officer Comfort, in fact, testified that methamphet amine manufacturers, distributors, and users possess guns for the same r easons. Therefore, evidence that Mr. Conner and Mr. Wright possessed loaded gun s in close proximity to drugs and drug paraphernalia was relevant under Rul e 401 because, insofar as guns are used by persons in the drug trade, it supp orts the inference that Mr.- 10 -

Conner personally had the specific purpose to maint ain his residence for manufacturing, distributing, or using methamphetami ne. We also conclude that the district court did not ab use its discretion in ruling that the evidence of the guns was not unfair ly prejudicial. We have held that: In the Rule 403 context . . . evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect a dversely the jury’s attitude toward the defendant wholly apartfrom its judgment as to his guilt or innocense [sic] of the crime charged. Even if this type of prejudice is found, it must substantially outwei gh the probative value of the evidence in order to be excluded underRule 403.
Tan , 254 F.3d at 1211-12 (internal quotation marks andcitations omitted) (italics in original). Rulings concerning admissio n of evidence based on its probative value versus prejudicial effect are w ithin the sound discretion of the district court. United States v. Jones , 44 F.3d 860, 875 (10th Cir. 1995). Here, the district court concluded that the guns were relevant to an issue in the case, and that they would not adversel y affect the jury’s attitude towards the defendant, independent of guil t or innocence. Moreover, the district court gave a proper limiting instruction. Under these circumstances, no abuse of discretion has bee n shown. C. Booker Issues Based on the facts reflected in the jury verdict al one, the sentencing1 The PSR relied upon by the district court arrived at the base offense level

of 26 as follows: “[Mr.] Conner is responsible for 44.50 grams of methamphetamine mixture which converts to 89 kilogr ams of marijuana. He is also responsible for 8,640 milligrams of pseudoephe drine from full packages which converts to 86 kilograms of marijuana . . . B ased on a total of 175 kilograms of marijuana equivalent, U.S.S.G. § 2D1.1 (c)(7) provides a base offense level of 26.” Second Revised PSR, dated Ju ly, 12 2004, ¶ 19.
- 11 - range for Mr. Conner would have been between 12 and18 months of incarceration. The district court enhanced his sen tence based on facts it found by a preponderance of the evidence. First, the dis trict court found that Mr. Conner was responsible for 44.50 grams of methamphe tamine mixture and 8,640 milligrams of pseudoephedrine, raising his ba se offense level from 12 to
26. 1 U.S.S.G. § 2D1.1(c)(7). Second, the district court applied a two-point enhancement for possession of a firearm during the commission of a drug offense. Id . § 2D1.1(b)(1). With a criminal history category of II and a total offense level of 28, the applicable guideline range was 87 to 108 months. At the sentencing hearing, Mr. Conner objected to t he district court’s application of the Sentencing Guidelines based on j udicial fact-finding, contending that this was in violation of Blakely v. Washington , 542 U.S. 296 (2004). In accordance with settled law at the time , the district court overruled that objection, and entered a sentence in the middl e of the guideline range, 97 months. In United States v. Booker , --- U.S. ---, 125 S. Ct. 738 (2005), the- 12 -

Supreme Court held 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 ver dict must be admitted by the defendant or proved to a jury beyond a reasonable d oubt.” Id. at 756. To remedy this violation, the Court struck down those provisions of the Sentencing Reform Act that required mandatory appli cation of the Sentencing Guidelines, instead requiring district courts to co nsult them in an advisory fashion. Id. at 756-57. Under Booker , therefore, the sentencing procedure in this case was clearly unconstitutional. The jury d id not find, and the defendant did not admit, the facts on which the district court relied to enhance Mr.
Conner’s sentence. The government concedes that Mr. Conner’s timely Bl akelyobjection adequately preserved his Bookerargument, but it contends that the error was harmless. See Fed. R. Crim. P. 52(a); United States v. Riccardi , 405 F.3d 852, 874-75 (10th Cir. 2005) (applying harmless error an alysis to a preserved constitutional Bookererror). Fed. R. Crim. P. 52(a) provides that “[a] ny error, defect, irregularity, or variance that does not aff ect substantial rights must be disregarded.” In the context of a misapplication o f the Guidelines under 18 U.S.C. § 3742(f)(1), the Supreme Court has held that “once the court of appeals has decided that the district court misappl ied the Guidelines, a remand- 13 -

is appropriate unless the reviewing court concludes , on the record as a whole, that the error was harmless, i.e., that the error d id not affect the district court’s selection of the sentence imposed.” Williams v. Un ited States , 503 U.S. 193, 203 (1992); Riccardi , 405 F.3d at 875. In harmless error cases, where the error was preserved, the government bears the burde n of demonstrating that the substantial rights of the defendant were not af fected. Riccardi , 405 F.3d at 875. In analyzing whether a preserved constitution al Bookererror is harmless, we have considered various factors, including the s trength of the evidence supporting the district court’s factual findings an d the likelihood that the district court would have imposed a less severe sentence had it known it had discretion. Id. at 875-76. Applying these standards, the governme nt has not persuaded us that the error complained of was harml ess. The government’s argument is that Mr. Conner’s tota l offense level was supported by the evidence and resulted in a sentenc e in the middle of the sentencing range provided by the Sentencing Guideli nes. Aplee Br. at 22-23. Although a sentence in the middle of the sentencing range suggests an exercise of discretion, we do not think that the government has carried its burden–its presentation does not demonstrate “overwhelming” ev idence to support the district court’s factual findings, cf. Riccardi , 405 F.3d at 875, nor does it “convince us beyond a reasonable doubt that the dis trict court would have- 14 -

imposed just as harsh a sentence in the absence of a mandatory guideline regime.” See United States v. Wyndrix, 405 F.3d 1146, 1158 (10th Cir. 2005). Thus, Mr. Conner must be resentenced. We do pause, however, to note our particular concern with the district court’s attrib ution of 8,640 milligrams of pseudoephedrine to Mr. Conner. Our review of the r ecord reveals that evidence of this quantity was not presented during the trial and the issue was a subject of heated dispute in the sentencing hearing . Moreover, the evidence provided by the government at the sentencing hearin g did not clearly indicate whether the calculation of the quantity of pseudoep hedrine included the weight of the entire tablets or just the pseudoephedrine c ontained in the tablets. See U.S.S.G. § 2D1.1, comment. (n.10) (explaining that in a case involving pseudoephedrine, “use the weight of the . . . pseud oephedrine . . . contained in the tablets, not the weight of the entire tablets, in calculating the base offense level”). The conviction is AFFIRMED and the case is REMANDED for resentencing. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge