UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ANTHONY TERRELL RAY FERGUSON, Defendant-Appellant. No. 11-4004 (D.C. No. 2:09-CR-00888-TC-1) (D. Utah)

ORDER AND JUDGMENT *

Before LUCERO , EBEL and GORSUCH , Circuit Judges.

* This Order and Judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral esto ppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not mate rially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1( G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### January 6, 2012

Elisabeth A. Shumaker Clerk of Court2 In this direct criminal appeal, Anthony Terrell Ray Ferguson, having pled guilty to conspiracy to distribute methylenedioxymetha mphetamine (MDMA) in violation of 21 U.S.C. § 846, challenges his sentence on four different grounds, arguing in each that his sentence was procedurally unreasonable. Exer cising jurisdiction under 28 U.S.C. § 1291,

we AFFIRM. BACKGROUND In December 2008, the Drug Enforcem ent Administration (DEA) launched an investigation into the present offense after a traffic stop in Nevada yielded a large amount of MDMA. The passenger in the car told aut horities that the driver was a partner with Mr. Ferguson in a MDMA-trafficking scheme that involved transporting thousands of pills containing MDMA (comm only known as “ecstasy”) from California to Utah. Soon thereafter, the DEA separately interviewed two confidential informants who had been

arrested with MDMA and wh o indicated that Mr. Ferguson was the head of an organization that distributed MDMA to the Sa lt Lake City area after receiving shipments of the pills from Nevada, Califor nia, and Washington (state). Mr. Ferguson was arrested in Salt Lake City in November 2009 when he attemp ted to pick up a vehicle, registered to him, that was in the DEA’s possession afte r highway patrolmen st opped the vehicle and found thousands of pills of MDMA. Mr. Ferguson was charged in November 2009 with conspiracy to distribute

MDMA in violation of 21 U.S. C. § 846 (Count 1); distribut ion of N-benzylpiperazine (BZP) in violation of 21 U.S. C. § 841(a)(1) (Count 2); and distribution of MDMA (Count3 3). He pled guilty to Coun t 1 in April 2010. Mr. Fergus on’s presentence investigation report (PSR) calculated that 97 ,148 MDMA pills were attribut able to Mr. Ferguson for the purposes of computing his offense leve l under the Federal Sentencing Guidelines (Guidelines). However, based on the testimony of DEA Special Agent Mark Bacon at the sentencing hearing on Decembe r 8, 2010, the district court found that approximately 110,000 to 112,000 pills were attributable to Mr. Ferguson. The court determined Mr. Ferguson’s offense level to be 37 and his criminal histor y category to be VI, which rendered an advisory sentencing range of 360 months to life under the Guidelines. However, the statutory maximum for Mr. Fe rguson’s offense was only 240 months. Ultimately, after considering the applicab le sentencing factors and Mr. Ferguson’s personal situation, the district court senten ced Mr. Ferguson to a term of 180 months’ imprisonment. This appeal followed. Additional facts will be set forth below as necessary. DISCUSSION I. Standard of review As a general matter, we review the dist rict court’s sentencing decisions for an abuse of discretion, asking whether or not th e decisions were reasonable. Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009). Reasonableness in sentencing contains a procedural prong as well as a substantive prong. United States v. Friedman, 554 F. 3d 1301, 1307 (10th Cir. 2009). Procedural

reasonableness “focuses on whether the distri ct court committed any error in calculating4 or explaining the sentence.” Id. (citing Gall, 552 U.S. at 50). Potential procedurally unreasonable errors include “failing to cal culate (or improperly calculating) the Guidelines range, treating th e Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [sentencing] factors, sele cting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. In determining whether th e district court acted reasonably, “[w]e review the district court’s legal conclusions regarding th e Guidelines de novo and its factual findings

for clear error.” United States v. Munoz-N ava, 524 F.3d 1137, 1146 (10th Cir. 2008). Under this standard, “[w]e will not disturb a factual finding unless it has no basis in the record.” United States v. Beltran, 571 F.3d 1013, 1021 (10th Cir. 2009) (quotation marks omitted). “[I]f the district court errs in a pplying the Guidelines, we must remand unless

the error is harmless.” Unite d States v. Townley, 472 F. 3d 1267, 1276 (10th Cir. 2007). II. The number of pills attributable to defendant

A defendant’s base offense level vari es depending on the volume of drugs

associated with his offense of conviction. See U.S.S.G. § 2D1.1. A sentencing court’s consideration of drug volume is not limited to amounts actually seized from defendants. Rather, where “the amount seized does not refl ect the scale of the offense, the court shall approximate the quantity of the controlled substance,” id., cmt. n.12, estimating the amount of attributable drugs on sufficiently trustworthy evidence. In this case, Mr. Ferguson argues that the district court erred in finding that 110,000 to 120,000 pills of5 MDMA were attributable to Mr. Ferguson fo r sentencing purposes. Mr. Ferguson argues that evidence upon which the court’s findi ng was based—namely, testimony by Special Agent Bacon regarding evidence of drug quantities other than those seized directly from Mr. Ferguson—was unreliable as uncorro borated, inconsistent, and coming from noncredible alleged co-conspirators.

We review the district court’s factual findings for clear erro r. Munoz-Nava, 524 F.3d at 1146. A sentencing judge may proper ly consider hearsay evidence as long as

such evidence is su fficiently reliable. U.S.S.G. § 6A1. 3(a) (“When any factor important to the sentencing determination is reasonabl y in dispute . . . the court may consider relevant information without regard to its admissibility under th e rules of evidence applicable at trial, provided that the inform ation has sufficient indicia of reliability to support its probable accuracy.”); Townley,4 72 F.3d at 1276 n.4. Also, “[c]redibility

determinations are within the s ound discretion of the trial judge ,” such that this Court will not second guess the district court’s findings un less they were clearly erroneous. United States v. Gobey, 12 F.3d 964, 967 (10th Cir. 1993). At the sentencing hearing in this case, Special Agent Bacon submitted to the court that 121,793 pills were attributable to M r. Ferguson—the sum of multiple transactions that the DEA had learned of principally thro ugh the three informan ts involved in Mr. Ferguson’s distribution scheme. Also be fore the district court were the DEA’s investigative reports, and transcripts of th e informants’ grand jury testimony and of phone calls relating to controlled purchases of MDMA from Mr. Ferguson. The court6 “found the evidence as presen ted by Special Agent Bacon to be credible,” emphasizing “the degree of independence of the vari ous [confidential inform ants] whose evidence [the] special agent used to make his calculations” and finding “that there was corroboration in the telephone calls and in the fact of grand jury testimony.” (ROA Vol. III at 45.) Having reviewed the record and keeping in mind the substantial deference we give with respect to findings of fact and credibility, we cannot say that the district court clearly erred in attributing to Mr. Ferguson the amount s to which Special Agent Bacon testified. We disagree with Mr. Ferguson’s asserti on that the informants’ information was not reliable. Rather, we agree with the district court’s findings of sufficient credibility and corroboration among the informan ts, and we determine that th e “discrepancies” noted by Mr. Ferguson in his reply brief are either non-e xistent (i.e., some are not inconsistent but simply more precise) or immaterial. The district court’s findings were not “without factual support,” and we are not “left with the definite and firm conviction” that the court

erred. United States v. Da lton, 409 F.3d 1247, 1251 (10t h Cir. 2005) (quotation marks omitted). We therefore discern no procedural error with the re spect to the number of pills attributed to Mr. Ferguson at sentencing. III. The amount of MDMA per pill

Since a defendant’s base offense level va ries with the volume of drugs associated with his offense of conviction, the district court at an MDMA sentencing must determine the quantity of MDMA in each pill in order to calculate the total amount attributable to7 the defendant. See U.S.S.G. § 2D1.1. In cases where the number of pills has been established but their weight is unknown, th e Guidelines supply a rebuttable presumption that each pill contains 250 mg of MDMA. S ee id., cmt. n.11. Mr. Ferguson argues that the district court erred by applying the 250 mg presumption to the calculated number of pills. He asserts that one test result showed that some of the sei zed pills weighed only between 49.2 mg and 131 mg. Mr. Ferguson also notes that law enforcement “would

have lab data” on the we ight of confiscated pills. (Ap lt. Br. at 23.) However, the only thing rebutting the Guidelines’ 250-mg pr esumption was Mr. Ferguson’s attorney’s assertion at sentencing proceedings that la b results showed that some pills weighed between 49.2 mg and 131 mg (ROA Vol. 2 at 29); there was no actual evidence of that in

the record. Mere assertions by counsel do not constitute “more reliable . . . case-specific information,” U.S.S.G. § 2D1.1, cmt. n.11, th at would rebut the Guidelines’ presumption. Cf. United States v. Atencio, 435 F.3d 1222, 1237 (10th Cir. 2007) (approving of the jury instruction that “statements, objections, or arguments made by the lawyers are not evidence”). Thus, it was not unreasonable for th e district court to apply the Guidelines’ 250-mg presumption.

IV. Conversion of MDMA to marijuana under the Guidelines Under the Guidelines, quantities of ma ny drugs, including MDMA, are converted into “equivalent” quantities of marijuana fo r the purpose of calculating a defendant’s offense level. See U.S.S.G. § 2D1.1. The conversion ratio for MD MA is 1:500, such

that the Guidelines consider 1 gram of MDMA to be equivalent to 500 grams of8 marijuana for the purpose of establishing drug quantity with respect to offense levels. Id., cmt. n.10(E). 1 Mr. Ferguson argues that the distri ct court’s application of the 1:500 ratio was unreasonable in light of empirical da ta suggesting that the ratio is unduly harsh and otherwise lacks justifica tion. However, while Mr. Ferguson is correct that a sentencing judge who disagrees with the policy or harshness of the Guidelines’ advisory conversions may deviate from them without ne cessarily abusing his or her discretion, by

no means does it follow that it is an abuse of discretion for a judge to adhere to the equivalency table, policy critiques notwithsta nding. Indeed, “a sentence is not rendered unreasonable merely because of a district c ourt’s refusal to deviate from the advisory [G]uideline range based on disagreements with the policies underlying a particular Guideline provision.” United States v. W ilken, 498 F.3d 1160, 11 72 (10th Cir. 2007) (quotation marks omitted); see also United States v. Alvare z-Bernabe, 626 F.3d 1161, 1166 (10th Cir. 2010). We therefore find no abuse of discretion in the district court’s application of the Guidelines’ advisory 1: 500 MDMA-to-marijuana conversion ratio in

this case. V. Calculation of defendant’s criminal history category Finally, Mr. Ferguson challenges the di strict court’s determination that his criminal history category was VI under the Gu idelines. More specifically, he argues that

he should not receive three criminal histor y points for each of his two convictions for

1 Under the current version of the Guidelines , the drug equivalency table is subsection D of Application Note 10 to U.S.S.G. § 2D1.1. Mr. Ferguson was sentenced under the 2010 Guidelines.9 separate armed robberies at ag e sixteen, reasoning that the tw o offenses were essentially the same crime spree. Mr. Ferguson notes that had he received a total of only three criminal history points for those two convic tions, his total number of criminal history points would have twelve, rather than fiftee n, and his criminal history category would

have been V instead of VI. Mr. Ferguson never raised this objection before the distri ct court. First, in his sentencing memorandum, Mr. Ferguson argued th at he was not a career offender under U.S.S.G. § 4B1.1(a) but failed to argue that his PSR had incorrectly counted his criminal history points with respect to his former c onvictions. (ROA Vol. I at 27-38.) Likewise, at his sentencing hearing, in the context of addressing the application of the careeroffender guideline, he conceded that his crim inal history category was, as the judge put it, otherwise “already” category VI. (ROA Vol. II at 13.) Mr. Ferguson thus either has waived this objection, if by his endorsement of the district court’s conclusion he “intentionally relinquished or ab andoned” the issue below, in which case this Court will not review it at all; or he has forfeited it, if the theory merely “was n’t raised” below, in which case it is subject to re view for plain error on appeal. See United States v. Vasquez-Alcarez, 647 F.3d 973 , 976 (10th Cir. 2011). Mr. Ferguson arguably waived the issue when his counsel agreed with the sentencing judge that his criminal history category was already VI, independent of the career-offender guideline. However, assu ming arguendo that the issue was only forfeited, Mr. Ferguson’s objection clearly fails our plain error standard, under which he10 must show “(1) error, (2) that is plain, whic h (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or pub lic reputation of judicial proceedings.” Id. (quotation marks omitted). In this case, no plain error occurred because the district court was correct to count separately Mr. Ferguson’ s two robbery convictions. The Guidelines instruct that where, as w ith Mr. Ferguson’s two robber ies, there was no intervening arrest, “prior sentences are counted separa tely unless (A) the se ntences resulted from offenses contained in the same charging in strument; or (B) the sentences were imposed on the same day.” U.S.S.G. § 4A1.2(a)(2). In this instance, Mr. Fe rguson’s two robbery convictions were not charged in the same instrument (they were different cases in different state courts), and the respective se ntences were imposed roughly six months apart. (ROA Vol. 3 at 95-96.) Accordingl y, the district court committed no error in determining Mr. Ferguson’s criminal history category. CONCLUSION For the foregoing reasons, we AFFIRM the district court.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge