* This order and judgment is not binding precedent, except under the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

** The Honorable Richard Mills, United States Distri ct Judge for the Central District of Illinois, sitting by designatio n. 

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

### FEB 13 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL MOTT, Defendant - Appellant. No. 99-3321 (D.C. No. 99-CR-20002) (Kansas)

ORDER AND JUDGMENT *

Before LUCERO and ANDERSON , Circuit Judges, and MILLS, ** District Judge.

Daniel Patrick Mott pleaded guilty to possession wi th intent to distribute more than 100 grams of methamphetamine and attempt to manufacture more than ten grams of methamphetamine within 1000 feet of a public school and was sentenced to concurrent 168-month prison terms. He challenges the inclusion in his sentence of drug transactions outside the scope of the indictment and alleges1 Items seized at defendant’s home included plastic bags, scales, gas

masks, plastic tubing, containers of denatured alco hol, glassware, red phosphorous, and more than 2500 tablets of over-the -counter medicine containing pseudoephedrine, all of which, according to the gov ernment, are used in the clandestine manufacture of methamphetamine. -2- double counting in the calculation of the drug quan tity attributable to him. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
I On May 19, 1997, a Kansas City police officer stopp ed defendant’s vehicle for traveling sixty-two miles per hour in a thirty mile per hour zone. After learning that defendant had a suspended driver’s li cense and an outstanding arrest warrant, the officer arrested him. An inventory se arch of the vehicle uncovered $9890 in cash, a set of scales, and two packages of a powder containing methamphetamine. In September 1998, the Kansas City police executed a search warrant for illegal drugs at defendant’s residence and discovered paraphernalia related to the manufacture of methamphetamine along with a substance that contained methamphetamine. 1 Defendant’s home was located approximately 880 feet from an elementary school. Following the search of his residence, defendant wa s arrested and charged in a five-count indictment in the United States Dis trict Court for the District of Kansas. He pleaded guilty to Counts 1 and 3, which alleged, respectively, knowing and intentional possession with intent to d istribute more than 100 grams2Counts 2, 4, and 5, on which defendant did not pl ead guilty, alleged the

following: knowing and intentional possession with intent to distribute more than twenty grams of a mixture or substance containing adetectable amount of methamphetamine within 1000 feet of a public elementary school in violation of 21 U.S.C. §§ 841(a)(1) and 860; knowing and intenti onal possession of pseudoephedrine, a List I chemical as defined in 21 U.S.C. § 802, with the intent to manufacture methamphetamine in violation of 21 U .S.C. § 841(d); and maintaining a residence for the purpose of manufacturing and distributing methamphetamine within 1000 feet of an elementary s chool in violation of 21 U.S.C. §§ 856(a)(1) and 860. -3- of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and knowing andintentional attempt to manufacture more than ten grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) within 1000 feet of a public elementaryschool, in violation of 21 U.S.C. §§ 846 and 860. 2 The presentence investigation report (“PSR”) refere nced a ledger kept by Angel Hernandez, who was arrested on separate drug charges and who agreed to cooperate with the government. The ledger indicate d that defendant paid $9400 on May 21, 1998, paid another $9000 on June 5, 1998 , and owed $26,250 as of June 5, 1998 for methamphetamine fronted by Hernand ez. Agent William Barajas, a drug investigator with the Kansas City, Kansas Police Department who worked for four years with th e DEA Task Force, testified at sentencing regarding the meaning of Hernandez’s ledger notations. On examination by the court, Barajas admitted that his interpretation of the figures in3 That amount was added to the 332.8 grams of methamphetamine seized

from defendant’s car and the 63.7 grams of methamph etamine that the pseudoephedrine tablets could have yielded. -4- the ledger was not supported by specific knowledge of Hernandez’s recordkeeping system, but only by his experience wi th drug traffickers’ use of ledgers and with Hernandez’s statements regarding “ how he dealt.” (III R. at 46, 65.) Barajas also testified that methamphetamine i s sold in the Kansas City area for approximately $10,000 per pound. According to Barajas, there was no known connection between defendant and Hernandez in May 1 997, when $9890 in currency was discovered in defendant’s vehicle. Although defendant objected that he was “blindsided ” by the use of the ledger in the PSR, the sentencing court accepted th e government’s assertion that it had orally advised defendant’s counsel in the early stages of the prosecution of the anticipated use of discovery items from the Hernandez case. (I R. Doc. 35 at 4.) The PSR added the $9400 payment and $26,250 balance in Hernandez’s ledger to the $9890 found in defendant’s vehicle an d converted the resulting $45,540 figure to an amount of methamphetamine—4.55 4 pounds at $10,000 per pound—to calculate the additional drug quantity attributable to defendant’s uncharged offenses. 3 Finding that the June 5 payment of $9000 could have been included in the PSR, the district court nonetheless accepted the PSR’s more-5-

“favorable” construction. (III R. at 71.) Finally , the court noted that the $9890 found in defendant’s car in May 1997 was not return ed to him and could not have been used in his later transactions with Hernandez. The court determined defendant’s base offense level to be 35 pursuant to U.S.S.G. §§ 2D1.1(c)(3) and 2D1.2(a)(2). Following a three-level downward adjustment for acc eptance of responsibility under U.S.S.G. § 3E1.1 and a two-lev el downward departure for defendant’s cooperation, the court arrived at a tot al offense level of 30, a criminal history category of VI and a custody range of 168–210 months. Defendant was sentenced to two concurrent prison te rms of 168 months each. On appeal, he challenges the inclusion of $45,540 of m ethamphetamine in the court’s determination of his relevant conduct for sentencin g purposes. II This Court reviews the district court’s factual fin dings for clear error and its application of the sentencing guidelines de nov o. United States v. Morales , 108 F.3d 1213, 1225 (10th Cir. 1997). Factual find ings underlying the determination of a defendant’s base offense level u nder the sentencing guidelines are reviewed for clear error. United States v. Roe derer , 11 F.3d 973, 977 (10th Cir. 1993). The sentencing court’s determination i s clearly erroneous only if it is-6-

not plausible or permissible in light of the entire record. Morales , 108 F.3d at
1225.
A Claiming that he had no notice prior to his guilty plea of the existence of inculpatory evidence uncovered in the Hernandez inv estigation, defendant challenges the district court’s consideration of un charged methamphetamine deals as relevant conduct in the determination of his off ense level and argues that the use of Hernandez’s ledger to calculate his base off ense level—even if permissible under the Sentencing Guidelines—violated his Fifth Amendment right to due process. Although he concedes that the Sentencing Guidelines permit consideration of “all acts” committed during and in preparation of an offense, defendant characterizes the transactions recorded i n Hernandez’s ledger as the “reasonably foreseeable acts” of another, which he asserts are properly considered only when conspiracy charges have been b rought. U.S.S.G. § 1B1.3(a)(1)(A), (B). In order for a guilty plea to be constitutionally v alid, it must have been made knowingly and voluntarily. Parke v. Raley , 506 U.S. 20, 28 (1992); United States v. Gigley , 213 F.3d 509, 516 (10th Cir. 2000). In his brief , defendant asserts that his decision to plead guilty was not knowing and voluntary because it was based on an anticipated offense level exclusive of the quantity of4We are unsympathetic to defense counsel’s respons e at sentencing that he

was “provided with a stack of discovery that was ab out three inches thick.” (III R. at 41.) If counsel’s representation is accurate , these materials were not so voluminous that he can legitimately claim to have b een surprised by the introduction of the ledger. -7- methamphetamine attributable to his dealings with H ernandez. Unfortunately for defendant, his claim that he was not notified that the transactions with Hernandez could be included as relevant conduct is belied by defendant’s own statements and those of his counsel prior to sentencing. Defe ndant was instructed by the district court at the time of his guilty plea that his sentence would not be known until the PSR had been completed. Also at the time of his guilty plea, defendant indicated that he understood there is “virtually no limitation on the information that the Court can take into account” concerning hi s background, character, criminal record, employment history, and the offens e in question. (II R. at 25.) At sentencing, defendant’s counsel conceded not onl y that he was advised in the initial stages of the prosecution that the investig ation of Hernandez had turned up evidence against defendant, but also that all of th e discovery materials in the Hernandez case had been provided to him. As a resu lt, the district court did not clearly err when it concluded that any lack of noti ce is attributable to counsel’s failure to review the discovery materials, which he admits the government made available in a timely manner. 4-8-

Finally, defendant misapprehends the nature of the relevant conduct introduced at sentencing. The ledger was introduce d not as evidence of Hernandez’s actions in “some type of conspiracy . . . arrangement,” (III R. at 39), but as evidence of the defendant’s own drug transac tions, which may be included as relevant conduct under U.S.S.G. § 1B1.3(a)(1)(A) . SeeUnited States v. Washington , 11 F.3d 1510, 1516 (10th Cir. 1993) (“Drug quanti ties associated with illegal conduct for which a defendant was not convicted are to be accounted for in sentencing, if they are part of the same con duct for which the defendant was convicted.”). It was not clear error for the d istrict court to conclude defendant entered his guilty plea with sufficient n otice that his transactions with Hernandez could be taken into account in determinin g his offense level under the Sentencing Guidelines.-9- B At sentencing, the government bears the burden of e stablishing by a preponderance of the evidence the quantity of drugs for which a defendant is responsible. United States v. Green , 175 F.3d 822, 836-37 (10th Cir. 1999); United States v. Richards , 27 F.3d 465, 468 (10th Cir. 1994). We will uphol d the district court’s calculation of drug quantity unles s that calculation is clearly
erroneous. Green , 175 F.3d at 837. Defendant claims the additional drug quantity—4.5 p ounds of methamphetamine—attributable to his uncharged offen ses was not proven by a preponderance of the evidence. He urges that AgentBarajas’s testimony was “based solely upon his interpretation of the Hernan dez notebook” rather than on personal knowledge of the ledger’s meaning. (Appel lant’s Br. at 18.) The Sentencing Guidelines provide that a court may consider relevant information without regard to its admissibility und er the rules of evidence so long as the information has “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3; see also United States v. Fennell , 65 F.3d 812, 813 (10th Cir. 1995) (stating that reliable he arsay may be used in the determination of a sentence). “When the actual dru gs underlying a drug quantity determination are not seized, the trial court may r ely upon an estimate to establish the defendant’s guideline offense level, so long as the information relied upon-10-

has some basis of support in the facts of the parti cular case and bears sufficient indicia of reliability.” United States v. Ruiz-Cas tro , 92 F.3d 1519, 1534 (10th Cir. 1996) (internal citations and quotations omitt ed); see also United States v. McIntyre , 997 F.2d 687, 709 (10th Cir. 1993). Thus, if the ledger and Barajas’s testimony possess sufficient indicia of reliability , the district court properly based its estimate of relevant drug quantity on those sou rces. Defendant suggests Barajas’s testimony was based on ly upon his experience as a police officer and his “interpretat ion” of the ledger, (Appellant’s Br. at 18), not upon a discussion of the ledger’s m eaning with Hernandez. Although Barajas admitted at the sentencing hearing that he did not talk with Hernandez “about this particular transaction” or “about his ledger system in general,” he testified that he did interview Hernan dez regarding “how he dealt.” (III R. at 65-66.) Moreover, Barajas testified he was a co-case agent in the investigation that resulted in the charges against Hernandez and was familiar with the set of individuals in the Kansas City area, inc luding defendant, to whom Hernandez had supplied methamphetamine. Credibility determinations are to be made by the di strict court, and this Court will not decide among competing interpretatio ns of testimony. See McIntyre , 997 F.2d at 709; see also United States v. Deninno , 29 F.3d 572, 578 (10th Cir. 1994) (holding that this Court defers to the district court when5 It is admittedly unclear from the ledger entry wh ether the May 21, 1998

ledger entry indicates that $9400 was paid on that date, as the district court found, or owing as of that date. Less ambiguous is the no tation indicating that defendant paid $9000 to Hernandez on June 5, 1998. Because the district court’s conclusion that the May 21 entry represented a payment of $940 0 was not clearly erroneous, we will not disturb that factual determination. -11- reviewing the credibility of witnesses on whose tes timony it relies in making factual findings regarding drug quantity). Given that the district court found Barajas to be a credible witness, his uncontradicte d testimony bears the minimum indicia of reliability required under the Sentencin g Guidelines. It was not error for the district court to conclude that the governm ent had established, by a preponderance of the evidence, defendant’s responsi bility for the quantity of methamphetamine to which Barajas testified. Impermissible double counting occurs when the same conduct is used to support separate increases in a defendant’s sentenc e. United States v. Flinn , 18 F.3d 826, 829 (10th Cir. 1994). Defendant argues that the inclusion in his offense level calculation of the dollar amounts lis ted in the ledger and found in his car constituted double or triple counting prohi bited by the Sentencing Guidelines. The basis of defendant’s double counti ng claim is his allegation that the government failed to prove by a preponderance o f the evidence that the $9890 in currency found in his car in May 1997, the $9400 amount dated May 21, 1998 on Hernandez’s ledger, 5 and the $26,250 debt dated June 5, 1998 represente d-12-

separate drug quantities. Put another way, the $26 ,250 figure in the ledger could have incorporated the $9400 figure as well as the $ 9890 in cash seized from defendant a year earlier. He claims the sentencing court impermissibly totaled those dollar amounts to arrive at a higher offense level, engaging in double or even triple counting. Based on Barajas’s uncontradicted testimony that de fendant and Hernandez did not transact business in May 1997, and in the absence of any evidence to the contrary, the district court’s conclusion that the $9890 seized from defendant in that month was attributable to a separate transacti on was not clearly erroneous. The same is true of the determination of drug quant ity attributable to the transactions recorded in Hernandez’s ledger. Claim ing the PSR erroneously added the $9400 figure to the $26,250 balance as of June 5, 1998 in its calculation of the drug quantity attributable to hi s offenses, defendant argues that the $9400 denotes a portion of his total debt rathe r than a payment. At sentencing, the district court observed: Actually, if you take the ledger at face value, I think that Mr. Mott is being charged with a lesser quantity of drugs than would fairly appear from the face of [the ledger].

. . . . Since the presentence investigation only uses the f igure of $45,540, . . . there’s exactly a $9,000 figure thatis not being charged against the defendant.-13-

(III R. at 69-70.) The court concluded that “defen dant has received favorable, more favorable construction of [the ledger] than I would have given him and that there’s not error in the formulation under the pres entence investigation report.” (Id. at 71.) Because the $9000 payment was not include d in the total drug quantity, even if the $9400 and $26,250 figures ove rlapped the result was an error of only $400. At $10,000 per pound, $400 cou ld have accounted for only slightly more than 0.018 kilogram of the 2.44 kilog rams for which the court found defendant responsible. Without it, defendantwould have been sentenced at the same base offense level pursuant to U.S.S.G. § 2D1.1(c)(3) (setting a base offense level of 34 for offenses involving “[a]t le ast 1.5 KG but less than 5 KG of Methamphetamine”), so that any alleged error was harmless. See Fed. R. Crim. P. 52(a) (“Any error . . . which does not aff ect substantial rights shall be disregarded.”). Defendant has not demonstrated err or requiring reversal of his

sentence.
III The judgment of the district court is AFFIRMED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge