* This order and judgment is not binding precedent, except under the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

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### JAN 5 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. GREGORY C. WOMACK, Defendant-Appellant. No. 99-6064 (D.C. No. CR-98-84-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Defendant-Appellant Gregory C. Womack appeals from his convictions for conspiracy to manufacture and distribute methamphet amine, 21 U.S.C. § 846 (count 1); manufacture of methamphetamine, 21 U.S.C . § 841(a)(1) (counts 2 & 5); and maintaining a house for the purpose of manu facturing methamphetamine, 21 U.S.C. § 856(a)(1); 18 U.S.C. § 2 (count 6). Mr . Womack was sentenced to- 2 -

360 months imprisonment on counts 1, 2, and 5 and 2 40 months on count 6, all sentences to run concurrently with one another and a state sentence being served. He also was sentenced to 5 years supervised release on counts 1, 2, and 5, and 3 years supervised release on count 6, all to run con currently. Mr. Womack raises three issues on appeal: (1) the district court err ed in finding that he was the leader of the conspiracy; (2) the court improperly used the 1998, instead of the 1995, Sentencing Guidelines; and (3) the amount of drugs attributed to him was not based on sufficiently reliable evidence. We af firm, but modify the judgment to reflect that the correct total offense level sho uld be 40, rather than 42. This modification in no way alters the sentence.

Background In July 1997, police found the remains of a drug laboratory in a salvage yard in Oklahoma City. Upon investigation of the s ite, they discovered envelopes addressed to a certain apartment on 10th Street in Oklahoma City. Police investigated the apartment where they apprehended G regory Womack, as well as other codefendants. Mr. Womack was found to be in possession of marijuana, methamphetamine and cocaine. Tr. at 27.

Discussion1 Mr. Womack argues that a § 3B1.1 determination is p rimarily legal and

review should be de novo. The issue of which stand ard of review to apply was resolved in United States v. Cruz Camacho , 137 F.3d 1220 (10th Cir. 1998), and we need not further address it here. - 3 - A. Leadership Role Mr. Womack argues that there was insufficient evide nce for the trial court to find that he was an organizer or leader of the c onspiracy and enhance his sentence by four levels under USSG § 3B1.1. “We r eview the district court's conclusion that a defendant is a leader or organize r under § 3B1.1(a) for clear error.” United States v. Tagore , 158 F.3d 1124, 1130 (10th Cir. 1998). 1 Application note 4 to § 3B1.1 sets out various fact ors that a court should consider in determining whether an individual is anorganizer or leader under the guidelines. See USSG § 3B1.1, comment. (n.4). These include decis ion-making authority, recruitment of accomplices, right to a l arger share of the fruits of the crime, degree and nature of participation in planni ng and commission of the offense, scope of the illegal activity, and degree of control over others. At sentencing, the district court specifically noted:

In this case, I have no question but that the evide nce abounds that Mr. Womack . . . was the leader and organizer of an extensive conspiracy involving well more than five people. Specifically, he chose the sites; he either provided the precursor chemicals or direc ted others where and what to get; he profited more thanthe others; he directed sales as well as manufacture.- 4 -

Sentencing Tr. at 9. The evidence in the record supporting this finding is substantial and there was no error.

B. Applicable Sentencing Guidelines Mr. Womack argues that the court erred in sentencin g him under the 1998 version of the Sentencing Guidelines (effective Nov ember 1, 1997) rather than the 1995 version. Ordinarily, a defendant’s senten ce should be based on the version of the guidelines “that are in effect on th e date the defendant is sentenced.” 18 U.S.C. § 3553(a)(4); see also USSG 1B1.11(a). However, this is not the case if amendments enacted after the defend ant’s crime would increase the sentence in violation of the Ex Post Facto Clause. United States v. Smith , 930 F.2d 1450, 1452 n.3 (10th Cir. 1991). The 1995 guidelines provided that one gram of methamphetamine had a drug equivalency equal to one kilogram of marihuana . USSG § 2D1.1, comment. (n.10) (Drug Equivalency Table) (1995). This ratio was changed in 1997, so that under the revised guidelines one gram of methamphet amine was equal to two kilograms of marihuana. USSG § 2D1.1, comment. (n. 10) (Drug Equivalency Table) (1998). Mr. Womack’s sentence was based upo n the 1998 guidelines, under which he was found responsible for drugs equi valent to roughly 33,600 kilograms of marihuana, with a base offense level of 38. See 8 R. at 7-8- 5 -

(presentence report). Combined with the four-level increase for being an organizer or leader, this resulted in a final offen se level of 42. If the 1995 guidelines had been applied, Mr. Womackwould only have been responsible for approximately 26,000 kilograms of marihuana drug equivalency, with a base level of 36 and a final of fense level of 40. This difference in levels, however, was harmless. Mr. W omack had a Category IV criminal history. Using either a 40 or a 42 final offense level under the 1995 guidelines, the applicable sentencing range was still 360 months to life. See Sentencing Tr. at 18 (district court specifically n oting this at sentencing). As there was no sentence increase, the Ex Post Facto C lause is not implicated. We modify the judgment to reflect that Mr. Womack’s fi nal offense level was 40, as properly calculated under the 1995 guidelines. See 28 U.S.C. § 2106 (power of court of appeals to modify judgment).

C. Reliability of Evidence of Drugs Attributable to M r. Womack A sentencing judge’s determination of the amount of drugs attributable to a criminal defendant is reviewed for clear error. See United States v. Johnston , 146 F.3d 785, 795 (10th Cir. 1998). The district c ourt relied primarily upon the testimony of two codefendants that pleaded guilty, Desiree Heasty and Shirley Lay, in determining the proper amount of drugs to attribute to Mr. Womack. He- 6 -

claims that the district court erred because this t estimony was not “sufficiently reliable.” Aplt. Br. at 12. “We defer to the district court when reviewing the credibility of the witness[es] on whose testimony it relies in making its factual findings.” United States v. Nieto , 60 F.3d 1464, 1469-70 (10th Cir. 1995). The district court specifically found both Ms. Heasty and Ms. Lay to b e credible witnesses, and we defer to this finding. Sentencing Tr. at 20. Ther e was no clear error. The judgment is modified to reflect the proper offe nse level of 40, and as modified is AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge