* This order and judgment is not binding precedent, except under the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

** The Honorable John R. Gibson, Senior Circuit Judg e for the Eighth Circuit, sitting by designation. 

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

### JUL 15 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 00-6395

v. (W. D. Oklahoma) HARRY DAVID WILLIAMS, Defendant-Appellant. (D.C. No. CR-99-42-T)

ORDER AND JUDGMENT *

Before HENRY , McKAY , and GIBSON , ** Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot 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 su bmitted without oral argument.1 The supervised release terms also ran concurrentl y. -2- Harry David Williams was convicted after a jury tri al of conspiring to manufacture methamphetamine with the intent to dist ribute (a violation of 21 U.S.C. § 846) and maintaining a place for the purpo se of manufacturing, distributing, and using methamphetamine (a violatio n of 21 U.S.C. § 856). The district court sentenced Mr. Williams to concurrentterms of imprisonment of 360 and 240 months, followed by six and three year term s of supervised release. 1 On appeal, Mr. Williams challenges the sufficiency of the evidence supporting both convictions. He also argues that the district court should have reduced his offense level under section 3B1.2 of th e United States Sentencing Guidelines (USSG) because he played a minor or mini mal role in the offense. Finally, Mr. Williams advances an argument based up on Apprendi v. New Jersey , 530 U.S. 466 (2000), maintaining that his conspirac y conviction should be reversed because the amount of drugs involved in th e conspiracy was not specified in the indictment. The gist of Mr. Williams’ challenges to the suffici ency of the evidence and to the district court’s application of USSG § 3B1.1 is that he played a minor role in the offenses, performing various menial tasks fo r one of the leaders of the conspiracy in exchange for methamphetamine. For th e reasons set forth below, we are not persuaded by Mr. Williams’ arguments. M oreover, as Mr. Williams-3-

acknowledges, the district court’s application of Apprendi comports with circuit precedent. Accordingly, we affirm Mr. Williams’ co nvictions and sentences.

I. BACKGROUND Because the parties are familiar with the relevant facts, we summarize them only briefly, viewing the record in the light most favorable to the government. See United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). Between Dece mber 1995 and October 1997, Loy Chris Stevens and Ewing Vise manufactured and distributed methamphetamine in the Oklahoma City ar ea. Mr. Stevens and Mr. Vise typically completed two ‘cooks’ per month, whi ch yielded from two ounces to two pounds of methamphetamine. The principal ma nufacturing sites were the two men’s residences in the southwest part of Oklah oma City. Methamphetamine was produced at an outbuilding behi nd Mr. Stevens’ residence that witnesses called the “bunkhouse.” W itnesses described this building as a small shed-like structure furnished w ith a day bed, television, chair, desk, and air conditioning. Mr. Williams lived in the bunkhouse during the period of the charged conspiracy. The government’s witnesses explained how the bunkho use was used for the-4-

conspiracy’s operations. Customers interested in p urchasing methamphetamine would approach from the front of Mr. Stevens’ prop erty, through Mr. Stevens’ residence, or through an alley and a gate in back o f the residence. Customer traffic in and out of the bunkhouse area was consta nt, day and night. As many as twenty-five people per day purchased methamphetamin e there. The government’s evidence also indicated that Mr. W illiams performed a variety of tasks related to the methamphetamine dis tribution scheme. First, he cleaned up the bunkhouse after it was used to manuf acture methamphetamine. Second, when methamphetamine was produced at the bu nkhouse, Mr. Williams served as a lookout. Third, at the direction of Mr . Stevens, Mr. Williams obtained chemicals and ephedrine pills necessary in the manu facture of methamphetamine. Fourth, Mr. Williams took glassware from the bunkho use to Mr. Stevens residence for cleaning. Finally, on several occasi ons, Mr. Williams distributed and sold methamphetamine at Mr. Stevens’ direction. In exchange for these services, Mr. Williams received methamphetamine and a place to stay.

II. DISCUSSION A. Sufficiency of Evidence Regarding Conspiracy Charge Mr. Williams first argues that the evidence is insu fficient to support his conviction for conspiring to distribute methamphetamine in violation of 21 U.S.C.-5-

§ 846. In order to convict Mr. Williams of this co nspiracy charge, the government was required to prove the following elem ents beyond a reasonable doubt: “(1) an agreement with another person to vio late the law, (2) knowledge of the essential objectives of the conspiracy, (3) kno wing and voluntary involvement, and (4) interdependence among the alle ged conspirators.” United
States v. Carter , 130 F.3d 1432, 1439 (10th Cir. 1997). Mr. Willia ms focuses his challenge on the fourth element, arguing that, in l ight of his relatively minor role in the methamphetamine distribution scheme, the gov ernment failed to demonstrate the necessary interdependence between h is activities and those of the other conspirators. We examine the sufficiency of the evidence de novo. See Wilson , 107 F.3d at 778. Evidence is sufficient to support a convic tion if the record, viewed in the light most favorable to the government, would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. See id. As Mr. Williams has observed, this circuit’s decisi ons have explained the element at issue here—the interdependence between c onspirators—in varying terms. Some decisions state that “[i]nterdependenc e exists where each coconspirator’s activities constitute essential andintegral steps toward the realization of a common, illicit goal.” Carter , 130 F.3d at 1440. Other decisions employ arguably broader language: “[I]f the activi ties of a defendant charged-6-

with conspiracy facilitated the endeavors of other alleged conspirators or facilitated the venture as a whole, evidence of int erdependence is present.” United States v. Horn , 946 F.2d 738, 740-41 (10th Cir. 1991). Mr. Williams frames his argument around the “essent ial-and-integral-stepstoward-a-common-goal” definition. In particular, h e maintains that he did not share a common goal with the leaders of the conspir acy. According to Mr. Williams, his goal in performing the various acts s urrounding the methamphetamine distribution scheme was merely to o btain drugs for his personal use. In contrast, the goal of the charged conspira cy was to manufacture and distribute methamphetamine for the purpose of makin g a profit. To show this lack of a common purpose, Mr. Williams points to a wide range of evidence. He notes that he did not share in the profits of the operation and did not manufacture methamphetamine himself. A lso, Mr. Williams was not involved in gun purchases and did not carry firearm s. On several occasions when the police came to Mr. Stevens’ house, Mr. Williams did not serve as a lookout. On one occasion when Mr. Stevens was arrested with laboratory materials in his truck, Mr. Williams was not present. Finally, Mr. Williams played no role in an attempted escape from jail by Mr. Stevens after Mr. Stevens’ arrest. Mr. Williams also cites cases involving individuals who have merely purchased drugs. For example, he notes that in Uni ted States v. Evans , 970 F.2d-7-

663 (10th Cir. 1992), this circuit reversed a convi ction of a defendant who was convicted of conspiracy to distribute cocaine based on the fact that she made a purchase from one of the major figures in the operation, lent scales to two members of the conspiracy with the knowledge that t hey would use the scales to weigh cocaine, and purchased a small amount of coca ine from two other individuals. We stated that “a consumer generally does not share the distribution objective and thus would not be part of the conspir acy to distribute cocaine.”
Evans , 970 F.2d at 669. (emphasis omitted). Under our standard of review, we cannot accept Mr. Williams’ argument. As the government and the district court have observed, the prosecution presented evidence from which a rational juror could conclude that Mr. Williams’ role in the conspiracy was more extensive than that of an i ndividual who merely purchased drugs. A number of witnesses testified that, for an extended period of time, Mr. Williams assisted in numerous operations of the conspiracy (e.g., cleaning up the bunkhouse, serving as a lookout, ob taining chemicals and ephedrine pills necessary in the manufacture of met hamphetamine, cleaning glassware, and distributing and selling methamphetamine at Mr. Stevens’ direction on several occasions). Moreover, even if all of these activities arose outof Mr. Williams’ need to satisfy his drug habit, that fact is not necessaril y inconsistent with his sharing the-8-

goals of the conspiracy. The cases on which Mr. Wi lliams relies do not preclude a jury finding that Mr. Williams had more than one goal: satisfying his drug habit anddoing so by undertaking the variety of tasks that Mr. Stevens asked him to do.
See United States v. Heckard , 238 F.3d at 1222, 1230 (10th Cir. 2001) (concluding that the evidence supporting a conspira cy conviction was sufficient because the defendant’s actions “benefitted not onl y himself , but also [other members of the conspiracy]”) (emphasis added). The variety of tasks that Mr. Williams performed di stinguishes this case from those exonerating consumers of illegal drugs f rom conspiracy charges. See,
e.g , United States v. Dekle , 165 F.3d 826, 829-30 (11th Cir. 1999); United States v. Brown , 872 F.2d 385, 390-91 (11th Cir. 1989). For examp le, in Brown , the Eleventh Circuit reversed a conspiracy conviction o f a defendant who had consumed drugs, noting that “there was no evidence that the defendant turned around and sold this cocaine or performed any erran ds or collections for his supplier or otherwise assisted the ongoing ‘busines s .’” Dekle , 165 F.3d at 830 (discussing Brown , 872 F.2d at 390) (emphasis added). Here, the gov ernment did produce such evidence. We therefore conclude that the evidence is sufficie nt to support a jury finding that Mr. Williams’ activities were “essenti al and integral steps toward the realization of [the] common, illicit goal” of distr ibuting methamphetamine,-9-

Carter , 130 F.3d at 1440, and that Mr. Williams’ activiti es “facilitated the venture as a whole.” Heckard , 238 F.3d at 1230 (10th Cir. 2001). Thus, the evi dence is sufficient to support his § 846 conspiracy convicti on.

B. Sufficiency of Evidence Regarding Violation of 21 U.S.C. § 856 Mr. Williams also challenges the sufficiency of the evidence supporting his conviction for violating 21 U.S.C. § 856 for knowin gly maintaining a place for the purpose of manufacturing, distributing, and usi ng methamphetamine. In order to establish a § 856 violation, the governmen t was required to prove the following elements beyond a reasonable doubt: (1) that the defendant knowingly (2) opened or maintained a place (3) for the purpos e of manufacturing by repackaging, distributing, or using a controlled su bstance. See United States v.
Green , 175 F.3d 822, 832 (10th Cir. 1999). Here, Mr. Will iams’ challenge pertains to the second element. Tenth Circuit decisions have provided some explicat ion of the “open or maintain” requirement. In order to “maintain” a pl ace, the defendant must have had a “substantial connection” to it. United State s v. Verners , 53 F.3d 291, 295- 96 (10th Cir. 1995). “Where the defendant lives in the [place] this element is normally easily proved.” Id. at 296. In other instances, a court may look to-10-

matters such as “control, duration, acquisition of the site, renting or furnishing the site, repairing the site, supervising, protecting, supplying the food to those at the site, and continuity.” Id. (quoting United States v. Clavis , 956 F.2d 1079, 1091 (11th Cir. 1992)). Applying these decisions, Mr. Williams points to se veral factors arguably demonstrating his lack of control over the bunkhous e. In light of these factors, he maintains that the government failed to prove that he “maintained” the structure by having a “substantial connection” to it. In particular, Mr. Williams observes that the bunkh ouse was located on Mr. Stevens’ property and that he did not pay rent. He notes that he was often observed outside the bunkhouse rather than inside i t. According to Mr. Williams, the evidence does not establish that he lived at th e bunkhouse on a regular basis. Thus, he was “merely a person who hung around [Mr.] Stevens’ property, who did errands not to maintain a methamphetamine manufactu ring site, but simply to use drugs.” Aplt’s Br. at 27. Nevertheless, as the government observes, the jury also heard evidence supporting the contention that Mr. Williams was mor e than a casual visitor to the bunkhouse. Some witnesses testified that Mr. Willi ams resided there on an extended basis, stating that he lived there “for a long time [, y]ears, off and on,” Rec. vol. XI, at 2181, and that he was “one of the persons that was always there2 As the government also notes, count five of the s uperseding indictment

also charged Mr. Williams with aiding and abetting in the violation of 21 U.S.C. § 856. The evidence presented by the government at t rial is also sufficient to support a jury finding that Mr. Williams aided and abetted in Mr. Stevens’ knowingly maintaining a place for the purpose of ma nufacturing, distributing, and using methamphetamine in violation of § 856. -11- to do anything and everything.” Rec. vol. VI, at 9 19. Most significantly, on several occasions Mr. Williams met individuals in t he bunkhouse and completed methamphetamine sales there on Mr. Stevens’ behalf. Sometimes, Mr. Williams acted as a crowd control manager, disbursing groups of customers who loitered around the bunkhouse. Mr. Williams also cleaned up various items that suggested that illegal activity had taken place there (e.g., used needles, spoons, glassware, and coffee filters). Viewed in the light most favorable to the governmen t, this evidence is sufficient for a rational jury to conclude that Mr. Williams had a substantial connection to the bunkhouse and therefore maintaine d it. We therefore conclude that the evidence is sufficient to support Mr. Will iams’ conviction for violating 21 U.S.C. § 856. 2

C. Refusal to Reduce Offense Level Under USSG § 3B1.2 Mr. Williams argues that the district court erred i n denying his request for a reduction in the offense level under USSG § 3B1.2. That section of the Guidelines allows a four-level reduction if the def endant was a “minimal”-12-

participant in the offense and a two-level reductio n if the defendant was a “minor” participant. The determination of a defend ant’s role in the offense is a factual question, and we thus review the district c ourt’s decision for clear error.
See United States v. James , 157 F.3d 1218, 1219 (10th Cir. 1998). Mr. Willia ms has the burden of proving by a preponderance of the evidence that he is entitled to the § 3B1.2 reduction. See United States v. Onheiber , 173 F.3d 1254, 1258 (10th Cir. 1999). Circuit case law has refused to rule categorically that any particular kind of role will always be entitled to a certain kind of r eduction. For example, as to drug couriers, the court has refused to adopt a perse rule that they are minor or minimal participants. See United States v. Ballard , 16 F.3d 1110, 1115 (10th Cir.1994). Here, Mr. Williams’ extended involvement in the con spiracy as a close assistant to Mr. Stevens provides ample support forthe district court’s refusal to reduce the offense level. Moreover, the district c ourt provided a persuasive explanation for its ruling:

It is correct, as the probation officer has written and as the government has contended with regard to this issue, that Mr. Williams was, indeed, a very active participant in th is conspiracy. . . . [The government witnesses] described the role in th e offense that was detailed and fully knowledgeable . . . Mr. Williams was clearly described by those witnesses a s a clean-up man, a man who was a lookout, who assistedin-13- distributions of methamphetamine when called upon, and helped in the manufacture, picked up chemicals and other materials that were necessary for the manufacture o f methamphetamine, and did so at the direction of [th e codefendant Mr.] Stevens, and was present and participating virtually every day for the period in volved. Rec. vol. XVII, at 2690-91 (District court’s findin gs at sentencing, Sept. 1, 2000). Although reasonable minds might disagree as to whether Mr. Williams’ degree of involvement warranted a reduction under § 3B1.2, we are required to afford substantial deference to the district court’ s assessment. See USSG § 3B1.2, comment.n.3(c) (noting that the application of § 3B1.2 is “heavily dependent upon the facts of the particular case”); United States v. Donaldson , 915 F.2d 612, 615 (10th Cir. 1990) (stating that the qu estion at issue in an appeal of a § 3B1.2 decision is whether the record “contains su fficient evidence that a reasonable judge could make that particular finding ”). Upon review of the record, we conclude that the district court’s findi ngs regarding its refusal to reduce Mr. Williams’ offense level are supported byevidence in the record and are not clearly erroneous. Thus, Mr. Williams is n ot entitled to relief under §
3B1.2.

D. Apprendi Challenge Mr. Williams argues that his conspiracy conviction should be reversed because the superseding indictment did not specify the amount of-14-

methamphetamine involved in the offense. His argument is based on the Supreme Court’s ruling in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be sub mitted to a jury, and proved beyond a reasonable doubt.” Here, Mr. Williams was sentenced within the statuto ry range for individuals with prior felony convictions who commit an offense involving unspecified amounts of drugs. See 21 U.S.C. § 841(b)(1)(C) (providing that a defendant who manufactures, distributes, or possesses with intentto distribute a schedule I or II controlled substance shall be sentenced to a term o f imprisonment of not more than twenty years, or more than thirty years if pre viously convicted of a drug offense). As a result, under circuit precedent app lying Apprendi , reversal of his conviction is not warranted. See United States v. Thompson , 237 F.3d 1258, 1262 (10th Cir.) (concluding that reversal is not w arranted under Apprendi if the defendant is sentence within the statutory range fo r offenses involving unspecified drug amounts), cert denied , 532 U.S. 982 (2001). Indeed, Mr. Williams concedes this point, see Aplt’s Br. at 32 (stating that “[t]he district court’s decision was in accord with this court’s po st-Apprendi rulings”), and he explains that he advances this argument for the purpose of preserving his right to seek Supreme Court review of this issue.-15-

Accordingly, we conclude that the indictment’s fail ure to specify an amount of methamphetamine involved in the conspiracy does not warrant reversal under Apprendi

. V. CONCLUSION For the reasons set forth above, we therefore AFFIRM Mr. Williams’ convictions and sentences.

Entered for the Court,

Robert H. Henry United States Circuit Judge