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

### June 8, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-2120 WESTON CHARLES LAUDER III,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR-02-2262-JP)

Thomas L. Wright, El Paso, Texas (Manuel Barraza, E l Paso, Texas, with him on the briefs), for Defendant-Appellant. Robert D. Kimball, Assistant United States Attorney , (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United States Attorney , Albuquerque, New Mexico, on the brief), Albuquerque , New Mexico, for Plaintiff-Appellee.

Before O’BRIEN , McCONNELL , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

In May 2004, a jury in the United States District C ourt for the District of New Mexico convicted Weston Charles Lauder III on the following four counts-2-

related to the possession and distribution of illeg al drugs: Conspiracy under 21 U.S.C. § 846 to violate 21 U.S.C. § 841(a)(1) and ( b)(1)(A)–(B) (Count I); maintaining a building for the manufacture and dist ribution of cocaine base in violation of 21 U.S.C. § 856(a)(1) (Count II); and possession with intent to distribute 50 grams or more of cocaine base (Count III) and 500 grams or more of powder cocaine (Count IV) within 1,000 feet of a sc hool under 21 U.S.C. § 860(a). On appeal, Lauder alleges that (1) the evidence was insufficient to support the jury’s verdict, (2) a new trial is needed due t o an alleged violation of Lauder’s Fifth Amendment right to remain silent, (3) the dis trict court erred in admitting fingerprint evidence, and (4) the district court er red in the amount of drugs it attributed to Lauder for sentencing purposes, whicherror violated Lauder’s Sixth Amendment rights underUnited States v. Booker , —U.S. —, 125 S. Ct. 738 (2005). For the reasons set forth below, we AFFIRM the district court’s order of conviction and the resulting sentence.
I. BACKGROUND On September 16, 2002, acting pursuant to a search warrant based on information supplied by a confidential informant, aLea County Drug Task Force conducted a search of a residence in Hobbs, New Mex ico. According to the-3-

warrant, the house belonged to Kena LaShawn Wright, but somebody referred to as “BL” also resided there. Upon arrival, the offi cers knocked on the door and announced they had a warrant to search the house. Although the officers heard footsteps running through the house, nobody answere d the door. The officers then kicked open the door, entered the house, and f ound Weston Charles Lauder III lying face down and spread-eagle in the kitchen area. Nobody else was in the house. During the search, the officers found large quantit ies of cocaine, crack, and money. In the master bedroom, for example, the sea rch revealed approximately 124 grams of powder cocaine and $5,630 in the pocke t of a brown sweatshirt that was hanging in the closet. There was also a blue j acket found in the closet that contained approximately 49.2 grams of crack cocaine and negligible amounts of marijuana in its hood. A dresser drawer contained six grams of crack cocaine and $295. The officers also retrieved a duffle bag con taining men’s clothing and a baggage claim tag in Lauder’s name. The officers searched the backyard and found, burie d in the ground, $12,000 in cash and, separately, approximately 745 grams of powder cocaine that was wrapped in two plastic bags. The officers also searched Lauder’s person. In Lauder’s wallet they found several pieces of paper that contained the initials of numerous people written next to money amounts. Acc ording to the testimony of-4-

the arresting officer, the papers were consistent w ith drug ledgers that are typically kept by people involved in drug distribut ion. Later witnesses, in fact, matched the initials found in Lauder’s wallet to kn own drug dealers. Following the search, the Task Force contacted the Drug Enforcement Agency and referred the case to the federal governm ent for prosecution. Lauder was transferred to the DEA’s custody in Las Cruces, New Mexico, whereupon a DEA agent recorded Lauder’s fingerprints using a di gital infrared scanner, referred to as the “live-skin method,” which, accor ding to testimony given at trial, operates essentially like a copy machine. Lab anal ysis by the DEA determined that Lauder’s digitally-obtained fingerprint matche d a latent fingerprint that was found on one of the plastic bags containing cocaine and buried in the backyard. At trial, the government introduced two cooperating witnesses that testified about Lauder’s drug activities. The first, Soleil Sligh, stated Lauder’s nickname was “BL” (“Big Little”) or “Little Man,” and that s he began buying crack from him in approximately February 2002. Sligh testifie d that on separate occasions she purchased a total of approximately 425 grams of crack cocaine and 255 grams of powder cocaine from Lauder, which she in turn re sold to drug users. She also helped Lauder sell an additional 255 grams of crackcocaine, and that on another occasion Lauder transported an additional 255 grams of crack cocaine from California to New Mexico. Sligh then testified that on at least one occasion she-5-

witnessed Lauder “cook” powder cocaine into crack w hile he was staying at Kena Wright’s house and that many of the initials on the papers found in Lauder’s wallet corresponded to known drug dealers in Hobbs. Finally, she stated that the brown sweatshirt found in the bedroom belonged to L auder and that “he keeps his money in [the sweatshirt] and sometimes his dope.” Aple. Supp. App. II, at 213. The second cooperating witness was Idella Royals, K ena Wright’s cousin. Royals testified that “once or twice” she sold crac k cocaine she had purchased from Lauder. She also described an incident in whi ch Lauder, after returning to New Mexico from California, walked into the kitchen , pulled up his shirt, and unstrapped a long package that was taped to his wai st. Royals testified that the package, which was wrapped in plastic, “appear[ed] to be Coke” and “looked like powder.” Id. at 265, 268. Furthermore, although she never witne ssed Lauder sell drugs to anybody other than herself and Kena Wright , Royals testified that numerous known drug dealers came to the house to se e Lauder, and she suspected they were buying cocaine. And, like Sligh, Royals recognized the brown sweatshirt as belonging to Lauder and referred to h im as “BL.” Following Lauder’s conviction by a jury, the distri ct court adopted the factual findings in the pre-sentence report. In ca lculating drug amounts, the PSR added together the illegal drugs found during the s earch of the house with the additional drugs that the cooperating witnesses hadpurchased from Lauder. The-6-

PSR also noted that the amount of seized cash ($17, 630) was consistent with the sale of an additional 176 grams of powder cocaine. The court then applied the Drug Equivalency Tables in USSG § 2D1.1, finding th at the total amounts of powder cocaine, crack cocaine, and marijuana involv ed in the conspiracy was the equivalent of 10,346 kilograms of marijuana. This amount resulted in a base offense level of 38 under the sentencing guidelines . No enhancements were added. With a Category I criminal history, the app licable guideline range was 235–293 months. The district court sentenced Laude r to 240 months imprisonment.
II. DISCUSSION Lauder raises four separate issues on appeal. We f irst address the issues going to the merits of the conviction, and then tur n to Lauder’s sentence. A. Sufficiency of the Evidence Sufficiency of the evidence to support a jury’s ver dict is a legal issue we review de novo. United States v. Norman , 388 F.3d 1337, 1340 (10th Cir. 2004). We review the evidence in the light most favorable to the government to determine whether “ anyrational trier of fact could have found the essent ial elements of the crime beyond a reasonable doubt.” United States v. Reece , 86 F.3d 994, 995–96 (10th Cir. 1996) (quotation omitte d). Furthermore, we do not “question the jury’s credibility determinations or its conclusions about the weight1 It is undisputed that Kena Wright’s house where Lauder was staying is

located approximately 200 feet from a school. -7- of the evidence.” United States v. Lazcano-Villalobos , 175 F.3d 838, 843 (10th Cir. 1999). We note initially that although Lauder was convicte d on four counts, he only challenges the sufficiency of the evidence tyi ng him to the drugs and his intent to distribute them. He does not challenge t he existence of a conspiracy under 21 U.S.C. § 846, the maintenance of a buildin g for the manufacture of crack cocaine under 21 U.S.C. § 856(a), or that dru g distribution, if established, occurred within 1,000 feet of a school under 21 U.S .C. § 860(a). 1 In reviewing the evidence, therefore, we focus our attention on the sufficiency of the evidence with respect to 21 U.S.C. § 841(a)(1), possession w ith intent to distribute crack and powder cocaine. To support a conviction for possession of illegal d rugs with intent to distribute under 21 U.S.C. § 841(a)(1), the governm ent is required to prove beyond a reasonable doubt that (1) the defendant knowingly possessed the illegal d rugs, and (2) the defendant possessed the drugs with the spec ific intent to distribute them.
Reece , 86 F.3d at 996. Possession may be either actual or constructive. “[C]onstructive possession exists where the defendant has the power to exercise-8-

control or dominion over the [contraband].” United States v. Lopez , 372 F.3d 1207, 1212 (10th Cir. 2004). Control or dominion o ver the premises where the contraband is found is a factor, but not a requirem ent, for finding constructive possession of the contraband itself. Id. at 1213. Where, however, the defendant has exclusive possession of the premises, dominion, ownership, and control are properly inferred. United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994). In joint occupancy cases where possession is not clear , such as where the drugs may be attributed to more than one person, we require s ome nexus, link, or other connection between the defendant and the contraband

. Id. As noted, the core of Lauder’s argument is that the government failed to prove a nexus between him and the drugs recovered d uring the raid. He points out, for example, he was “a transient” and “living out of a travel bag” at the time of the raid, thus suggesting he cannot be held resp onsible for the contents of a house that he did not own. Aplt. Br. at 17. But L auder ignores substantial evidence linking him to the crime scene, and, in any event, our case law shows that regardless of who owns or rents the house, a c onviction for constructive possession is properly sustained where the evidence “support[s] at least a plausible inference that the defendant had knowledg e of and access to the . . . contraband.” Norman , 388 F.3d at 1341 (quotation omitted). This stand ard is easily met here.-9-

There is abundant evidence that Lauder had knowledg e of the illegal drugs. To begin, the brown sweatshirt found hanging in the bedroom closet was connected to Lauder by the testimony of the two coo perating witnesses. Both witnesses testified they had seen Lauder wear the s weatshirt, and one of the witnesses, Soleil Sligh, even stated that Lauder co mmonly used the sweatshirt to keep money and drugs. The fact that this sweatshirt was found hanging in the same closet as other clothing containing crack coca ine, and in the same room as the dresser drawer containing crack cocaine, is add itional evidence supporting an inference that Lauder had knowledge of those drugs as well. Regarding the cocaine buried in the backyard, the presence of Lau der’s fingerprint on the plastic bag offered the jury compelling evidence that Laude r had knowledge of the bag’s contents. Idella Royals’ testimony that she saw La uder unstrap a long package that “appear[ed] to be Coke” and “looked like powde r” further bolstered this evidence. A reasonable jury could conclude the pac kage spoken of by Royals was the same one found buried in the backyard. As to access, Lauder was the only person in the hou se when the Task Force conducted its raid. This fact, although certainly not determinative in a joint occupancy case such as this, supports an inference that Lauder had access to the contents of the house and its environs, especially where Wright was not home at the time of the raid. Additionally, Royals, who wa s also living in the house at the-10-

time, testified that Lauder and Wright were sharing the master bedroom. This was corroborated by an officer’s testimony that men ’s clothing was strewn throughout the master bedroom and that there was a duffle bag containing a baggage claim tag in Lauder’s name. Lauder, in fac t, claimed ownership of the bag and its contents. Finally, a confidential info rmant tipped the Task Force that someone referred to as “BL” occupied the house. Ta ken together, these facts show that Lauder was living in Kena Wright’s house at the time of the raid, thus supporting an inference that he had access to the c ontents of the house. Lastly, as required by § 841(a), the evidence was s ufficient to show that Lauder possessed the drugs with the specific intentto distribute them. Testimony by Sligh and Royals was particularly relevant in th is regard. Sligh testified, for example, that she repeatedly purchased crack and po wder cocaine from Lauder which she then resold to drug users. She also stat ed she witnessed Lauder sell drugs himself. Royals testified she bought crack c ocaine from Lauder, and, additionally, that numerous known drug dealers came to the house to see Lauder, presumably to purchase drugs. The Task Force also recovered large sums of cash and drugs, both of which is indicative of drug distribution. See Jenkins , 175 F.3d at 1216–17. Of the approximately $17,000 in cash r ecovered during the raid, most was in $20 bill denominations, the standard street price of one crack rock in Hobbs, New Mexico. Finally, the jury also heard te stimony that drug dealers-11-

typically keep a drug ledger such as the one found in Lauder’s wallet. To cement the issue, Sligh’s testimony linked the initials wr itten on those ledgers to known drug dealers. In sum, viewed in the light most favorable to the g overnment, a reasonable jury could conclude that the evidence, taken togeth er with the reasonable inferences therefrom, was sufficient to prove that Lauder knowingly possessed with the intent to distribute powder and crack coca ine. We therefore deny Lauder any relief on this ground.
B. Post-Arrest Silence Lauder next contends the government violated his Fi fth Amendment right to remain silent by introducing evidence of his post-a rrest silence. Lauder assigns error to the following statements made by a DEA age nt testifying for the government: Q: Now, with regard to the Defendant himself, what steps did you take with respect to him on September 17 th? A: I put him in the back seat of [the car]. . . . And I remember that I asked him his rights, and asked him if he wanted to talk to us on the way back to Las Cruces, and he advised he did not

. Aple. Supp. App. II, at 312–13 (emphasis added). Lauder’s counsel immediately objected and moved fora mistrial, or in the alternative, a curative instruction. The district court judge, declining to grant a mistrial, issued the following curative instruction :-12-

Ladies and gentlemen, you should disregard the agent’s statement with regard to the Defendant’s exercise of his cons titutional right to remain silent. As most of you know who have watche d TV in the last two decades, the Fifth Amendment of the United Stat es Constitution guarantees the Defendant the right to remain silentand to request an attorney if he is going to be questioned. You shou ld not infer from the Defendant’s refusal to talk to the officers any thing at all about his guilt or anything with regard to the evidence i n this case. Id. at 315–36. We have previously stated that “[t]he general rule of law is that once a defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which defendant exercised.” United States v. Burson , 952 F.2d 1196, 1201 (10th Cir. 1991) (citing Griffin v. California , 380 U.S. 609, 615 (1965)). Although there are narrow exceptions to the general rule, such as the use of silence for impeachment in certain circumstances, id. , those exceptions do not apply here. Here, Lauderdecided to invoke his right to remain silent, and the agent impermissibly made reference to that decision. Indeed, on appeal the government co ncedes that the agent’s reference to Lauder’s post-arrest silence was impro per. But this does not end our analysis. Constitutional violations such as the one at issue here are subject to the harmless erroranalysis outlined inChapman v. California , 386 U.S. 18, 24 (1967), under which “the benefici ary of a constitutional error [must] prove beyond a reasonab le doubt that the error complained of [was harmless].” In United States v. Massey , 687 F.2d 1348 (10th-13-

Cir. 1982), we set forth a five-factor test to be u sed in determining whether comments regarding the defendant’s silence are harm less. Namely, we consider (1) the use to which the prosecution puts the silen ce, (2) who elected to pursue the line of questioning, (3) the quantum of other e vidence indicative of guilt, (4) the intensity and frequency of the reference, and ( 5) the availability to the trial judge of an opportunity to grant a motion for mistr ial or to give curative instructions. Id. at 1353 (citations and quotations omitted). The government argues that the agent’s reference to Lauder’s post-arrest silence was harmless beyond a reasonable doubt, andwe agree. The agent’s statement was not used by the prosecution as substantive evidence of guilt. Instead, the agent, unprovoked by the prosecution, blurted out the statement in a manner that did not advance the government’s case i n any particular way.
Burson , 952 F.2d at 1201 (finding the error harmless in p art because reference to pre-arrest silence was “an afterthought” of testify ing agent and had “little probative value”); United States v. Brooks , 940 F.2d 598, 601 (10th Cir. 1991) (to the same effect). With respect to the intensity an d frequency of the improper reference, here we are dealing with one off-the-cuf f comment that was not repeated or highlighted at any other point in the t rial. This situation, therefore, stands in obvious contrast to those cases where the prosecution makes frequent use of the defendant’s post-arrest silence by, for example, lengthy cross--14-

examination or arguments in closing that the defend ant’s silence is evidence of his guilt. Cf. Griffin , 380 U.S. at 610–11 (error not harmless); Massey , 687 F.2d at 1352 (same); see also Burson , 952 F.2d at 1201 (error harmless in part because “[t]he prosecution made no reference to [defendant’ s] silence in closing argument or otherwise”). Additionally, as noted above, ther e was ample evidence of Lauder’s guilt without the agent’s comment. And fi nally, the district court immediately gave a curative instruction. See Battenfield v. Gibson , 236 F.3d 1215, 1225 (10th Cir. 2001) (error harmless in partbecause court gave curative instruction). Thus, taking the Masseyfactors together, we hold that the error in this c ase was harmless beyond a reasonable doubt. Lauder is therefore not entitled to a new trial on this ground. C. Fingerprint Evidence Lauder’s third argument is that the district court erred in admitting fingerprint evidence tying Lauder to the cocaine bu ried in the backyard. Prior to trial, the government filed a motion in limine rega rding the admissibility of fingerprint evidence it intended to use at trial. In the motion the government outlined the credentials of its fingerprint expert, Anna Zadow, and asserted her expert testimony was admissible under Federal Rules of Evidence 702 and 703. Lauder did not respond to the motion and the court did not issue a ruling prior to2 A “latent” fingerprint is a print left on evidence at a crime scene that

cannot be seen by the naked eye and must undergo a process of development in order to be examined. See Fern L. Kletter, Admissibility and Weight of Fingerprint Evidence Obtained or Visualized by Chem ical, Laser, and Digitally Enhanced Imaging Processes , 110 A.L.R.5th 213, at § 2[a] (2005). A “known” o r “exemplar” print is a reproduction of a known subje ct, usually taken by law enforcement after the subject is in custody. The r eproduction of a known print can be done in several ways, including the traditio nal ink method or the digital method at issue in this case. Id.

3 The parties’ briefs and the trial transcript referto the “live-skin method.” We are aware, however, that many law enforcement ag encies use “LiveScan,” an electronic fingerprinting machine similar to the on e used in this case. For purposes of this discussion, we will adopt the termused by the parties. -15- trial. At trial, Lauder’s counsel stated he had no objections to Zadow’s expert qualifications, and the district court made a findi ng under Rule 702 that Zadow was qualified to render an expert opinion. Lauder objected, however, when the government sought to introduce evidence that a late nt fingerprint found on one of the plastic bags containing cocaine matched Lauder’ s “known” fingerprint. 2 As justification for his objection, Lauder cited Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the seminal Supreme Court case governing the admissibility of expert testimony und er the Federal Rules of Evidence. Specifically, Lauder objected to the adm ission of fingerprint cards containing Lauder’s known prints. The cards were c reated by technology referred to at trial as the “live-skin method.” 3 In essence, the live-skin method entails the use of a machine that records fingerprints much as a copy machine duplicates paper copies. The expert, Ms. Zadow, described it at trial:-16-

[It’s a] digitally-captured system. It’s what I wi ll term live skin . . . because what it is, it’s a plate, it’s like a glass plate, and it has technology inside of it that when your finger is pl aced on a glass without ink, it will capture that friction ridged s kin and it will appear to have black ink on it when you look on the comput er monitor. . . . [A]fter you rolled your ten fingers, those are then printed out using a printer, a computer printer, and put on an 8 by 8 f ingerprint card. Aple. Supp. App. III, at 382–83. The government first attempted to have the cards ad mitted into evidence during the testimony of the DEA agent who took Laud er’s fingerprints. The district court did not rule on the cards’ admissibi lity at that time, telling the government that “[y]our expert can determine admiss ion.” Aple. Supp. App. II, at 326. Zadow then took the stand and described the p rocesses she followed in matching Lauder’s known print to the latent print f ound on the plastic bag. On voir dire examination, Lauder attempted to show that the live-skin method involved new technology that lacked reliability. Z adow admitted, for example, she was not aware of any testing done by a scientif ic body. Nor did she know its potential error rate, whether it has been accepted by the scientific community, or whether it had been subjected to peer review. Howe ver, Zadow stated the liveskin method has been in use for approximately eightyears and is routinely used by the FBI, DEA, United States Marshals Service, an d numerous local police departments. Other than cross-examination, Lauder’ s counsel made no proffer of evidence contesting the expert’s methodology or the reliability of the equipment4 To assist in the assessment of reliability, the Co urt listed four

nonexclusive factors that the district courts may c onsider: (1) whether the opinion at issue is susceptible to testing and has been sub jected to such testing; (2) whether the opinion has been subjected to peer revi ew; (3) whether there is a known or potential rate of error associated with th e methodology and whether there are standards controlling the technique’s ope ration; and (4) whether the theory has been accepted by the scientific community. Daubert, 509 U.S. at 593–94. -17- used to capture the print. Following voir dire, th e district court admitted the liveskin fingerprint cards. The Supreme Court, through a trilogy of cases begin ning in 1993, has held that federal district courts must perform a gatekee per role under Federal Rule of Evidence 702 in ensuring that scientific testimony or evidence is both relevant and reliable. 4 Daubert , 509 U.S. at 592–93; General Electric Co. v. Joiner , 522 U.S. 136, 142 (1997). In Kumho Tire Company, LTD. v. Carmichael , 526 U.S. 137, 141 (1999), the Court made clear that this gat ekeeper role applies not only to scientific knowledge, but to “technical” and “otherspecialized” knowledge as well. Applying Daubertin this circuit, we have held that “[a] natural re quirement of the gatekeeper function is the creation of a suf ficiently developed record in order to allow a determination of whether the distr ict court properly applied the relevant law,” and in the absence of specific findi ngs in the record, “we must conclude that the court abused its discretion in ad mitting such testimony.” Dodge v. Cotter Corp ., 328 F.3d 1212, 1223 (10th Cir. 2003) (citations and quotations-18-

omitted). According to Lauder, the district court was require d to make factual findings regarding the reliability of the live-skin method, which it did not do. Lauder argues further that the court’s failure to m ake such findings amounts to reversible error under Daubert . If, in fact, Daubertestablished the applicable guideposts to this case, then Lauder’s argument wou ld have some appeal. See Dodge , 328 F.3d at 1229 (reversing and remanding for a n ew trial because district court failed to perform its gatekeeper role). In o ur view, however, Lauder’s reliance on Daubertis misplaced. Properly framed, the admissibility of the fingerprint cards is governed by the evidentiary ru les regarding foundation and authentication, not Daubert

. The applicability of Daubertis a question of law that we review de novo. Norris v. Baxter Healthcare Corp ., 397 F.3d 878, 883 (10th Cir. 2005). By its terms, the Daubertopinion applies only to the qualifications of an e xpert and the methodology or reasoning used to render an expert o pinion. Daubert , 509 U.S. at 592–93 (noting that trial judge must undertake “a p reliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue”). Daubertgenerally does not, however, regulate the underlyi ng5 Federal Rule of Evidence 702, which Daubertinterprets, is not to the

contrary. Rule 702 states: If scientific, technical, or other specialized know ledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experie nce, training, or education, may testify thereto in the form of an op inion or otherwise, if (1) the testimony is based upon sufficient facts or dat a, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. As noted in the Advisory Committee Notes to the 200 0 Amendments, subpart (1)’s reference to “sufficient facts or dat a” calls for a quantitative rather than qualitative analysis.

-19- facts or data that an expert relies on when forming her opinion. 5 Cf . Fed. R. Evid. 703 (“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or m ade known to the expert at or before the hearing.”). In this case, Lauder does not challenge Zadow’s qua lifications as a fingerprint identification expert or the methodolog y she used in matching Lauder’s live-skin print to the latent print found on the plastic bag. These matters, of course, if challenged by Lauder, could fall within the Daubert framework. See, e.g., United States v. Crisp , 324 F.3d 261, 266–70 (4th Cir. 2003) (analyzing fingerprint identification methodo logy under Daubert’s standard for reliability and relevance); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001) (same). Instead, Lauder challenges onlythe evidence-gathering6 “Whether a particular fingerprint device or machin e generates an accurate

fingerprint image involves an inquiry as to whetherthere is sufficient evidence to authenticate the accuracy of the image and the reli ability of the machine. Authentication or identification is an aspect of re levancy that is another condition precedent to admissibility. The requirement of aut hentication is satisfied by evidence sufficient to support a finding that the m atter in question is what its proponent claims. Fed. R. Evid. 901(a). Although authentication of pictures or images most often is established through eyewitness testimony that the picture accurately depicts the scene or expert testimony th at the picture was generated by a reliable imaging process, Fed. R. Evid. 901(b)(4) provides that authentication may be established by internal patterns or other di stinctive characteristics, taken in conjunction with the circumstances. The charact eristics of the offered item itself, considered in light of the circumstances, a uthenticates the item.” (citation omitted)

-20- equipment used to record his known print, and this critical distinction renders Daubertinapplicable. Whether the live-skin method generated an accurate image is an authentication question unaffected by Daubert

. See Kletter, supra note 2, at § 2[a]. 6 The following thought experiment is illustrative: Suppose an expert relies on photographs taken by a new digital camerain forming her opinion. A district court would not be required to perform a Daubertanalysis as to whether the photographs accurately reflected the subject matter depicted, even though digital technology is relatively new as compared to a traditional film camera. Absent some specific objection to the technology un derlying the digital equipment, a court is not required to take testimony as to how the equipment works. If the party opposing the exhibit has doubt s as to whether the matter in question is what its proponent claims, the proper o bjection would arise under Rule7Even though Lauder does not argue Rule 901 on appe al, we exercise our

discretion to answer this question because, as disc ussed, the admissibility of the fingerprint cards, properly framed, falls within th e Rule 901 framework and not Daubert . Furthermore, we note that Lauder’s first objecti on at trial appears to have been on foundation grounds, and only later didhe invoke Daubert

. See Aple. App. Supp. II, at 325 (when asked to give a r eason for objection to the fingerprint cards, replying that “I [don’t] think t here is sufficient basis for . . . admission of this item”). Thus, this issue was suf ficiently preserved for our review. -21- 901, not Rule 702/Daubert . This is not to say, in the right case, the techn ology underlying the data collection equipment might be s ufficiently cast into doubt to require a Dauberthearing. But every case involving equipment—wheth er it be computers, cameras, or speed guns—does not automati cally require a Daubert hearing regarding the physics behind the operation of the machine. The question we must answer, then, is whether the g overnment laid a sufficient foundation for the fingerprint cards und er Rule 901, a question we review for abuse of discretion. 7 United States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991). The authenticity of a f ingerprint card may be inferred from circumstantial evidence adduced at trial. Id. at 344. Under the facts of this case, we have no difficulty in holding that the gov ernment presented sufficient circumstantial evidence that the fingerprint cards accurately reflected Lauder’s prints, and therefore “[a]ny possible lack of proof connecting [the fingerprint card] with the defendant was a matter for the jury to consider.” Id. at 345 (citations omitted).-22-

The DEA agent who took Lauder’s fingerprints testif ied at trial that he created the fingerprint cards using the live-skin d evice, and that the device required him to type his name as the agent taking t he fingerprints. The agent then submitted the fingerprint cards to the DEA lab in D allas, Texas, and asked that they be compared to any fingerprints that might hav e been found as a result of the Task Force’s raid. He also testified the live-skin device was functioning properly during the time in question and “the machine checks itself and there’s certain qualitites that every print roll has to have for th e computer program to accept that print.” Aple. Supp. App. II, at 324. In addition to the agent’s testimony, Zadow stated that when she received the fingerprint cards , she put her initials and case number on them, and at trial she recognized the car ds as the ones she used to perform a comparison to the latent print found on t he plastic bag using customary processes. In response to voir dire, she also stat ed that potential smudges on the glass plate would not undermine the ability of the machine to record an accurate print. Our conclusion is bolstered by other courts that have considered this question. The Fourth Circuit, for example, has hel d that fingerprint cards can be authenticated under Rule 901(b)(4)’s “distinctive c haracteristics” language, which allows authentication by reference to “internal patterns, or other distinctive characteristics, taken in conjunction with the circ umstances.” United States v.-23-

Patterson , 277 F.3d 709, 713–14 (4th Cir. 2002). In Patterson , the Fourth Circuit considered a case with facts strikingly similar to the case at bar. There, the defendant alleged that the district court erred in admitting fingerprint cards produced by a machine called a Digital Biometrics T enprinter. Like the live-skin device, the Tenprinter used a laser scanner to prod uce a digital image of the subject’s fingerprints. At trial, the government’s expert testified that one of the defendant’s prints generated by the Tenprinter matc hed a print recovered from a bag containing crack cocaine at the crime scene. Id. at 712. In discussing whether the government had laid a sufficient foundation for admission of the fingerprint cards, the court looked to case law app lying Rule 901 to photographic evidence. The court stated that even though the go vernment witness could not explain how the machine worked or verify that the f ingerprints were accurately rendered on the Tenprinter image, the fingerprints cards were nevertheless admissible: An adequate foundation was provided . . . by “inte rnal patterns[ ] or other distinctive characteristics, taken in conjunc tion with circumstances.” Fed. R. Evid. 901(b)(4). Specific ally, the testimony that one of the fingerprints recorded by the Tenpri nter matched the fingerprint recovered from the drug container, if c redited by the jury, provided compelling evidence that the Tenprinter re liably imaged Patterson’s fingers; the alternative—that the machi ne generated an inaccurate fingerprint image that happened to be id entical to a fingerprint recovered by a different person using adifferent process in a different location—is simply implausible. See People v. Webb , 6 Cal. 4th 494, 24 Cal. Rptr. 2d 779, 862 P.2d 779, 7 98 (Cal. 1993) (en banc). Accordingly, the introduction of this evide nce provides no-24-

basis for relief. Id. at 713–14. We agree with this reasoning and hold that the dist rict court did not abuse its discretion in admitting the fingerprint cards i nto evidence. Trial testimony by the DEA agent and the expert, Zadow, provided evide nce that Lauder’s known fingerprint was properly recorded, that the live-sk in method functioned properly when it recorded Lauder’s print, and that the chain of custody was maintained. To the extent this testimony was still doubtful in authenticating the fingerprint cards—and we do not hold that it was—the fact that the known print was matched to a print taken from the crime scene is compelling evidence the cards were what its proponent claimed. Fed. R. Evid. 901(a) and (b )(4). D. Sentencing Issues Lastly, Lauder challenges two aspects of the distri ct court’s sentencing decision. First, he alleges the district court err ed in the amount of illegal drugs it attributed to Lauder for sentencing purposes. Seco nd, he argues his sentence violates the Sixth Amendment as recently interprete d by United States v. Booker , —U.S. —, 125 S. Ct. 738 (2005).

1. Drug amount attributable to Lauder At sentencing, the district court used the Drug Equ ivalency Tables in USSG § 2D1.1 to determine the amount of drugs invol ved in the drug distribution-25-

conspiracy. Adhering to findings in the PSR, the c ourt concluded that the conspiracy entailed 10,346 kilograms of marijuana, all of which was attributed to Lauder for sentencing purposes. According to Laude r, he should have only been held responsible for the amount of cocaine buried i n the backyard (745 grams) because “none of the other drugs found in this case have a nexus, link, or connection to Mr. Lauder.” Aplt. Br. at 20. We review a sentencing court’s determination of the quantity of drugs attributable to a defendant for clear error. United States v. Morales , 108 F.3d 1213, 1225 (10th Cir. 1997). USSG § 1B1.3(a), whic h deals with relevant conduct for sentencing purposes, states that (1)(A) all acts and omissions committed, aided, abe tted, counseled, commanded, induced, procured, or willfully caused b y the defendant; and (B) in the case of a jointly undertaken criminal ac tivity . . . , all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity [are relev ant conduct for sentencing purposes]. In a controlled substances case, a defendant is “ac countable for all quantities of contraband 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 scope of the criminal activity that he jointly undertook.” USSG § 1B1.3 comment. (n.2) (emphasis added). The government must prove the amount of drugs attributable to each defendant by apreponderance of the-26-

evidence. Morales , 108 F.3d at 1226. As demonstrated by our discussion above regarding the sufficiency of the evidence, the district court did not clearly err in finding that Lauder was either “directly involved” with the drugs attributed to hi m, or, at the least, that the amounts were “reasonably foreseeable quantities . . . that were within the scope of criminal activity jointly under[taken].” USSG § 1B 1.3 comment. (n.2). Furthermore, in calculating drug amounts, the distr ict court followed the procedure outlined in § 2D1.1 of the sentencing gui delines, including the directive to “approximate the quantity” where the a mount of drugs seized does not reflect the scale of the offense. USSG § 2D1.1 com ment. (n.12). We therefore decline to grant any relief to Lauder on this groun d.

2. United States v. Booker Finally, Lauder urges us to remand his case for res entencing in light of United States v. Booker , —U.S.—, 125 S. Ct. 738 (2005). In Booker , the Supreme Court applied its opinion in Blakey v. Washington , —U.S.—, 124 S. Ct. 2531 (2004), to the federal sentencing guidelines, holding that “[a]ny fact (other than a prior conviction) which is necessary to supp ort a sentence exceeding the maximum authorized by the facts established by a pl ea of guilty or a jury verdict must be admitted by the defendant or proved to a ju ry beyond a reasonable doubt.” Booker , 125 S. Ct. at 756. Justice Breyer’s remedial opi nion in Booker-27-

then excised portions of the Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3551 et seq., thus rendering the sentencin g guidelines advisory. Id. at 757. Accordingly, prior to Booker , a district court could potentially make two distinct types of error: First, a court could err by relying upon judge-foun d facts, other than those of prior convictions, to enhance a defendant’ s sentence mandatorily. As Bookermakes clear, the Sixth Amendment prohibits this practice. 125 S. Ct. at 756. . . . Second, a sentencing court could err by applying the Guidelines in a mandatory fashi on, as opposed to a discretionary fashion, even though the resulting sentence was calculated solely upon facts that were admitted by the defendant, found by the jury, or based upon the fact of a prio r conviction. Id. at 769. While this type of sentence does not violate the Sixth Amendment, id. , such a sentence is nonetheless impermissible because the Court severed the portion of the Senten cing Reform Act that required the mandatory application of the Guid elines, id. at 764. United States v. Gonzalez-Huerta , 403 F.3d 727, 731–32 (10th Cir. 2005). Lauder argues that his case involves the first kindof error, so-called “constitutional Bookererror.” Id. Specifically, he alleges the district court violated his Sixth Amendment right to a jury trial by finding facts regarding drug quantity amounts. The jury convicted Lauder of pos session with the intent to distribute “50 grams and more” of crack cocaine and “500 grams and more” of powder cocaine, which is the equivalent of 1,100 ki lograms of marijuana under the sentencing guidelines. See USSG § 2D1.1. Based on this amount, when combined with his Category I criminal history, Laud er’s guideline range would8 In a case such as this where the jury’s verdict do es not find a specific

amount of drugs attributable to the defendant, we m ust assume the only amounts found unanimously by the jury are those specificall y alleged in the indictment. See United States v. Magallanez , —F.3d—, No. 04-8021, 2005 WL 1155913, at *7 (10th Cir. May 17, 2005). -28- have been 151 to 188 months. 8 The district court, however, over Lauder’s objections, attributed additional crack and powder cocaine amounts that, when converted, totaled 10,346 kilograms of marijuana. This put Lauder’s guideline range at 235 to 293 months. Although Lauder contested the factual basis for the drug amounts attributed to him, he did not assert a constitutional objectio n during sentencing. We therefore review the district court’s sentence for plain error. Gonzalez-Huerta , 403 F.3d at 732. To meet this standard, Lauder mus t show that the district court (1) committed error, (2) that the error was plain, and (3) that the plain error affected his substantial rights. United States v. Cotton , 535 U.S. 625, 631 (2002). If these three criteria are met, then (4) we may ex ercise discretion to correct the error if it seriously affects the fairness, integri ty, or public reputation of the judicial proceedings. Id. at 631–32. However, we apply these factors “less rigidly when reviewing a potential constitutional e rror.” United States v. Dazey , 403 F.3d 1147, 1174 (10th Cir. 2005) (quoting United States v. James , 257 F.3d 1173, 1182 (10th Cir. 2001)).-29- (a) Prongs One and Two Applying this analysis, it is readily apparent the first two prongs are met. Lauder never admitted to the judge-found drug quant ities, and the resulting sentence, mandatorily imposed, exceeded the maximum authorized by the jury verdict. Thus, the district court committed consti tutional error. Booker , 125 S. Ct. at 756; Magallanez , 2005 WL 1155913, at *9. Although Lauder was sentenced in accordance with well-settled law, the error is plain because it is clear and obvious at the time of his appeal. Gonzalez-Huerta , 403 F.3d at 732 (citing Johnson v. United States , 520 U.S. 461, 468 (1997)). Thus, as in most Booker appeals, Lauder’s potential resentencing rests on application of the third and fourth plain error prongs.

(b) Third Prong To satisfy the third prong, Lauder must demonstrate that the sentencing error affected his substantial rights, which “usual ly means that the error must have affected the outcome of the district court pro ceedings.” Cotton , 535 U.S. at 632. To meet this burden, Lauder must show “a reas onable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Dominguez Benitez , 542 U.S. 74, 124 S. Ct. 2333, 2339 (2004) (citations and quotation omitted). In constitution al Booker error cases, we have held that there are at least two ways a defendant c an make the required showing:-30-

First, if the defendant shows a reasonable probabil ity that a jury applying a reasonable doubt standard would not have found the same material facts that a judge found by a preponderanc e of the evidence, then the defendant successfully demonstrates that t he error below affected his substantial rights. This inquiry requ ires the appellate court to review the evidence submitted at the sente ncing hearing and the factual basis for any objection the defendant m ay have made to the facts on which the sentence was predicated. Se cond, a defendant may show that the district court’s error affected h is substantial rights by demonstrating a reasonable probability that, und er the specific facts of his case as analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the district court judge would re asonably impose a sentence outside the Guidelines range. For example , if during sentencing the district court expressed its view th at the defendant’s conduct, based on the record, did not warrant the m inimum Guidelines sentence, this might well be sufficient to conclude that the defendant had shown that the Bookererror affected the defendant’s substantial rights. Dazey , 403 F.3d. at 1175; see also United States v. Clifton , —F.3d.—, No. 04- 2046, 2005 WL 941581, at *6 (10th Cir. April 25, 20 05). We need not resolve whether Lauder can satisfy his burden under the third prong if he cannot show that the constitutional err or seriously affected the fairness, integrity, or public reputation of the ju dicial proceedings. Cotton , 535 U.S. at 632–33; Gonzalez-Huerta , 403 F.3d at 736. In this case, Lauder cannot satisfy his burden under the fourth prong, and we therefore need not address whether the constitutional error affected his subst antial rights.

(c) Fourth Prong Lauder bears the burden of showing the Bookererror seriously affects the fairness, integrity, or public reputation of the ju dicial proceedings. Gonzalez--31-

Huerta , 403 F.3d at 736. We have, to date, identified nu merous non-exclusive factors that can guide our fourth prong analysis. First, we have noted that constitutional Bookererrors will be noticed more freely. Clifton , 2005 WL 941581, at *6 (citations omitted). Another relevan t inquiry is the relative strength or weakness of the evidence supporting the defendant’s sentence under the sentencing guidelines. Id. (citations omitted). Next, we may consider whethe r the Bookererror substantially increased the defendant’s sent ence. Id. (citations omitted). And, more recently, we have noted two ad ditional factors: “a showing that objective consideration of the [21 U.S.C.] § 3 553(a) factors warrants a departure from the sentence suggested by the Guidel ines,” and “other evidence peculiar to the defendant that demonstrates a compl ete breakdown in the sentencing process.” United States v. Dowlin , —F.3d—, Nos. 03-8038, 03-8055, 2005 WL 1155882, at *18 (10th Cir. May 17, 2005) (c itations omitted). In conducting our fourth prong analysis, we remain mindful that the district court’s error in this case was not its reliance on judge-found facts in sentencing. Indeed, after Booker , it is now universally accepted that judge-found f acts by themselves do not violate the Sixth Amendment. Ins tead, the constitutional error was the court’s reliance on judge-found facts to en hance Lauder’s sentence mandatorily

. Booker, 125 S. Ct. at 750 (“If the Guidelines as currently written could be read as merely advisory provisions that re commended, rather than-32-

required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amen dment.”); United States v.
Lawrence , 405 F.3d 888, 906 (10th Cir. 2005). Therefore, a nother important fourth prong consideration is “[w]hether the distri ct court would simply reimpose the same sentence on remand, or whether instead the sentence would likely change to a significant degree if the case were ret urned to the district court for discretionary sentencing.” Id. at 907 (citations and quotations omitted). Addressing this last consideration first, there is nothing in the record which suggests the district court believed a sentence bel ow the guidelines range would be appropriate. The record is simply silent on th is point. The actual sentence imposed by the court, however, indicates an exercis e of discretion. Having identified the guideline range as between 235 to 29 3 months, the district court sentenced Lauder to five months above the bottom of the range. As we noted in
Lawrence , a sentence above the bottom of the range is an in dicator that the district court would simply reimpose the same sente nce on remand, and therefore core notions of justice would not be offended if we declined to notice the error. 405 F.3d at 908 (declining to notice the constituti onal Bookererror because, among other things, the defendant was sentenced two months above the bottom of the guideline range). Here, then, given the actual sentence, Lauder does not demonstrate the district court would act differentl y in a discretionary-33-

environment. Additionally, looking to the strength or weakness o f the evidence supporting Lauder’s sentence, all of the judge-foun d drug amounts rested on direct evidence offered at trial, either physical e vidence recovered by the raid or testimony from cooperating witnesses. See Magallanez , 2005 WL 1155913, at *9 (declining to notice constitutional Bookererror in part because “[t]he court based its assessment of drug quantity on the evidence at trial, totaling up all drug quantities specifically linked by witnesses to [the defendant]”). The judge, in fact, stated at Lauder’s sentencing hearing that “I do think the amounts are justified.” Aple. Supp. R.O.A., at 12. Although L auder contested the drug amounts testified to by Soleil Sligh, he offered no evidence to rebut her testimony. As the judge stated, “Well, the jury ba sically believed her. I don’t think there’s much question about that.” Id. at 7. These statements, in our view, are further evidence the judge would merely reimpose the same sentence were we to remand this c ase for resentencing. In fact, the record actually supports a finding of more drugs than the district court attributed to Lauder at sentencing. The PSR, for e xample, failed to take into account ten additional ounces of crack cocaine (283 .5 grams) that could have been attributed to Lauder based on trial testimony. The PSR’s oversight, had it been noticed by the district court, would have subs tantially increased Lauder’s-34-

sentencing guideline range. Finally, there is no evidence in the record that an objective application of the 21 U.S.C. § 3553(a) factors would support a dep arture from the Guidelines in this case, nor that this case presents peculiar evi dence demonstrating a breakdown in the sentencing process. Indeed, only one factorweighs in Lauder’s favor, which is that the judge-found facts substantially i ncreased the applicable guideline range. The drug quantity amounts found b y the judge increased Lauder’s base sentence range by 84 months, which, i n our view, is a substantial increase. Nonetheless, this one factor—like any of the factors we have identified in our prior cases—is not dispositive, especially g iven the essentially unrebutted evidence relied on by the district court. In sum, Lauder has not shown that the constitutiona l error in this case seriously affected the fairness, integrity, or publ ic reputation of the judicial proceedings. The actual sentence (five months abov e the bottom of the guideline range), direct evidence supporting the judge-found quantity amounts, and statements by the district court persuade us that aremand in this case would only result in the reimposition of the same sentence. W e therefore decline to notice the error, and affirm Lauder’s sentence.-35- III. CONCLUSION For the foregoing reasons, we AFFIRM the convictionand sentencing on all counts.