* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAY 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. CLAYTON ALBERS,

Defendant-Appellant. No. 97-3228 (D.C. No. 93-CR-10020) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant Clayton Albers returns to this court on appeal of his resentencing following our remand in United States v. Albers , 93 F.3d 1469 (10th Cir. 1996). The background facts of this case are fully set forth in Albers , and, we will repeat here only those facts necessary to o ur analysis. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we a ffirm. Defendant was originally indicted along with seven coconspirators, who all entered guilty pleas prior to trial. Defendant pro ceeded to trial where he was convicted by a jury for conspiracy to manufacture m ethamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, possession or distribution of ephedrine while knowing or havin g reasonable cause to believe the listed chemical would be used to manufacture me thamphetamine in violation of 21 U.S.C. § 841(d)(2) and 18 U.S.C. § 2, and man ufacture of methamphetamine with intent to distribute in violat ion of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendant was sentenced to life imprisonment. On appeal, this court affirmed defendant’s convicti ons, but concluded that the sentencing court’s four-level enhancement pursu ant to U.S.S.G. § 3B1.1 for his role as a leader or organizer was error requiri ng remand for resentencing. See Albers , 93 F.3d at 1489. On remand, the district court h eld a de novo resentencing hearing resulting in defendant’s resentencing without enhancement for his role in the offenses of conviction. At res entencing, the court determined-3-

that defendant’s base offense level was forty predi cated on a finding that thirtysix kilograms of d-methamphetamine were attributabl e to him. The court then resentenced defendant to 360 months on counts one and three, and ten years on count two to run concurrently. Defendant appeals the resentencing, asserting that the government did not meet its burden of proof as to the quantity and type of methamphetamine used to determine his sentence. “[D]rug quantity determinations by a sentencing cou rt are reviewable for clear error.” United States v. Ruiz-Castro , 92 F.3d 1519, 1534 (10th Cir. 1996). We afford deference to the sentencing court’s appli cation of the guidelines to the facts. See id. The government has the burden of proving the quantity of drugs for sentencing by a preponderance of the evidence. See id. This is a “no dope” case in which the government di d not seize or test any of the methamphetamine underlying defendant’s convi ction. When a determinate quantity of drugs is not actually seized, the courtmay rely on an estimate of drug quantity to establish a base offense level, as long as the information relied on in making an estimate is factually supported and has s ufficient indicia of reliability.
See id. The district court’s estimate of at least thirty- six kilograms of methamphetamine attributable to defendant for sente ncing purposes was based on the testimony of several of defendant’s coconspirat ors at trial and the testimony of Craig Stansbury, a DEA agent, at defendant’s res entencing hearing. Agent1 Defendant owned and operated a fertilizer business in Wichita called

AgriData. It appears that defendant and Mr. Cambro n used the nature of this business as justification for the order of ephedrin e, telling the supply company that it was to be used as a growth enhancer in fert ilizer. When the supply company notified the DEA, the DEA allowed the orderto be filled, but advised the supply company to notify DEA again if a subsequ ent order was received. When the supply company received a second order fro m defendant, it began its investigation which resulted in the arrests of the members of the conspiracy. -4- Stansbury testified that he had interviewed several of defendant’s coconspirators including Patrick Cambron, Jack Francis, and James Randa. Agent Stansbury had also been present during defendant’s trial and hear d the testimony of these coconspirators. From this testimony, it was apparent that Mr. Cambr on and defendant were responsible for obtaining a large amount of ephedri ne, the precursor chemical necessary for the methamphetamine manufacturing ope ration in California. Mr. Francis and Mr. Randa operated the lab in Californi a and were the actual manufacturers of the methamphetamine. Defendant, t hrough his fertilizer business, ordered one hundred kilograms of l-ephedr ine which arrived in four twenty-five-kilogram drums. 1 Mr. Cambron testified that when they took delivery of the ephedrine, he and defendant repacked it in e ight separate boxes and sent it on to coconspirator Mike Marino in California. Mr. Cambron testified that each drum of ephedrine would yield approximately forty p ounds of methamphetamine, for a total of 160 pounds or 73 kilograms. Mr. Cam bron told Agent Stansbury-5-

that he personally sold eighty pounds, or thirty-se ven kilograms, of methamphetamine at the price of $10,000 per pound. There was testimony at trial that defendant received at least $77,000 of this am ount at various times and in various ways. See Albers , 93 F.3d at 1473. Consistent with Mr. Cambron’s testimony, Sanford Angelos, a DEA chemist, testifie d that, using the red phosphorus method, 100 kilograms of l-ephedrine wou ld yield approximately 30 to 90 kilograms of methamphetamine. Defendant argues that the court’s reliance on the t estimony of Mr. Cambron as to the amount of methamphetamine produced lacks the requisite indicia of reliability, and therefore, he should be sentenced based only on the amount of ephedrine obtained by the conspiracy. See U.S.S.G. § 2D1.11 (twenty or more kilograms of ephedrine results in an offense level of twenty-eight). In United States v. Beaulieu , 893 F.2d 1177 (10th Cir. 1990), this court affirm ed the sentencing court’s reliance on the testimony, in a separate trial, of defendant’s brothers and coconspirators. We held that, providi ng “‘the information has sufficient indicia of reliability,’” the court may properly consider it at sentencing “‘without regard to its admissibility under the rul es of evidence applicable at trial.’” Id. at 1179-80 (quoting U.S.S.G. § 6A1.3). We agree with the resentencing court’s conclusion that there was no serious dispute that at least thirty-six kilograms of metha mphetamine were attributable to2 For purposes of calculating a base offense level, o ne gram of

d-methamphetamine is equivalent to one kilogram of marijuana and one gram of l-methamphetamine is equivalent to 40 grams of mari juana. See U.S.S.G. § 2D1.1, Drug Equivalency Tables. There is, theref ore, a significant sentencing difference between the two isomers. See United States v. Deninno , 29 F.3d 572, 579 & n.3 (10th Cir. 1994). -6- defendant. Defendant has not established that Mr. Cambron’s trial testimony regarding the amount of ephedrine purchased, the yi eld of methamphetamine from the ephedrine (which comported with the testimony o f Mr. Angelos, the DEA chemist), the amount Mr. Cambron admitted he person ally sold, and the evidence of the amount of the proceeds of the operation defe ndant received failed to possess sufficient indicia of reliability to support the thirty-six kilogram amount used to determine defendant’s sentence. See Beaulieu , 893 F.2d at 1181 (holding that reliable hearsay may be used at sentencing to determine the appropriate punishment). Therefore, we determine no clear erro r in the district court’s calculation of the quantity of drugs attributable t o defendant for purposes of establishing his base offense level. Next, defendant asserts that the sentencing court e rred in sentencing him based on d-methamphetamine rather than the less one rous sentence which would result from l-methamphetamine. 2 At defendant’s resentencing hearing, Agent Stansbury testified that in his interviews with Mr. Francis and Mr. Randa, they told him they manufactured the methamphetamine usin g ephedrine, hydriodic3 Because the l-methamphetamine isomer is less desirable, is rarely seen on

the streets, and is the product of a “botched attempt to produce d-methamphetamine,” the Sentencing Guidelines were amended on November 1, 1995, to eliminate the distinction between the two isomers for sentencing purposes. Amendment 518, U.S.S.G. Manual, AppendixC at 423. “Under this amendment, l-methamphetamine would be treated the s ame as d-methamphetamine (i.e., as if an attempt to manufa cture or distribute d-methamphetamine).” Id. -7- acid, and red phosphorus. Agent Stansbury further testified as to his thirteen years’ experience as part of the DEA’s lab team, hi s training in the manufacture of methamphetamine, and his discussions with John M eyers, a chemist, regarding the red phosphorus method of methamphetamine manufa cture. Agent Stansbury testified that Mr. Meyers told him the red phosphorus method yielded d-methamphetamine, and that this fact was consistent with Agent Stansbury’s experience and training. Agent Stansbury also test ified that l-methamphetamine is an isomer rarely seen on the streets due to its less desirable potency. 3 Defendant argues on appeal that the government did not establish by a preponderance of the evidence that the methamphetam ine involved in his offense was d-methamphetamine instead of the less potent l- methamphetamine. We disagree. “We review a district court’s factual fi nding that a specific isomer of methamphetamine was involved in criminal activity f or clear error.” United States v. Lande , 40 F.3d 329, 330 (10th Cir. 1994). We will not d isturb a sentencing court’s finding unless it lacks factual support in the record, or “we are-8-

left with the definite and firm conviction that a m istake has been made after reviewing all of the evidence.” Id. The government bears the burden of proving by a preponderance of the evidence the type of meth amphetamine involved in the offense of conviction. See United States v. Glover , 97 F.3d 1345, 1347 (10th Cir. 1996). Here, the court found that the methamphetamine invo lved in defendant’s offense was, more likely than not, d-methamphetamin e. In reaching this conclusion, the sentencing court again relied on th e testimony of defendant’s coconspirators presented at defendant’s trial regar ding the manufacture and sale of the methamphetamine, and the testimony of Agent Stansbury regarding his experience with methamphetamine manufacture as well as his discussions with Mr. Meyers as to the isomer produced by the red pho sphorus manufacture method used by defendant’s coconspirators in California. Moreover, when the drums which had contained the ephedrine were seized at de fendant’s place of business, they were labeled l-ephedrine, and although they ha d been refilled with potash, there were detectable traces of l-ephedrine remaini ng. According to Mr. Meyers, the precursor chemical, l-ephedrine, always produce s the d-methamphetamine isomer. Here, the government adequately established that th e substance involved in defendant’s offenses of conviction was d-methamphet amine. See United States v.-9-

Dudden , 65 F.3d 1461, 1471 (9th Cir. 1995) (even when “no direct evidence of the drug’s chemical composition or the method of it s manufacture is available, circumstantial evidence may be sufficient to determ ine which isomer is involved”); see also Lande , 40 F.3d at 331 (relying on circumstantial evidenc e to uphold finding that drug involved was d-methamphetamine). Accordingly, based upon our review of the record, we conclude that the district court did not commit clear error in finding that the methamphetamine inv olved in the conspiracy for which defendant was convicted was, more likely thannot, d-methamphetamine. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge