* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### MAR 16 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JAMES PAT HUNT, Defendant-Appellant. No. 98-6232 (W. District of Oklahoma) (D.C. No. 97-CR-127)

ORDER AND JUDGMENT *

Before TACHA , McKAY, and MURPHY , 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)(2); 10th Cir. R. 34.1(G). T his court, therefore, honors the parties’ requests and orders the case submitted without oral argument.-2-

A jury convicted James P. Hunt with one count of po ssession of methamphetamine with intent to distribute. The Pre sentence Report (“PSR”) calculated Hunt’s base offense level as 40 and his criminal history category as VI, resulting in a sentencing range of 360 months to li fe. See U.S.S.G. ch. 5 pt. A, Sentencing Table. Hunt objected to the drug quanti ty calculations in the PSR, asserting that several of the quantities should nothave been included because they lacked any indicia of reliability and had not been proved by a preponderance of the evidence. At the sentencing hearing, the distr ict court concluded that it need not resolve Hunt’s objections. According to the di strict court, even if the objections were resolved in Hunt’s favor, the sente ncing range of 360 months to life would not change. The district court sentence d Hunt to a term of imprisonment of 360 months. Hunt appeals, raising the following two claims of error: (1) the district court erred in not resolvin g Hunt’s objections to the PSR; and (2) the district court erred in allowing the pr osecution to trade sentencing leniency for the sworn testimony of two cooperating witnesses. This court exercises jurisdiction pursuant to 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291 and
affirms

. In the sentencing context, this court reviews the d istrict court’s factual findings for clear error; the district court’s appl ication of the Sentencing-3-

Guidelines is reviewed de novo

. United States v. Cantley , 130 F.3d 1371, 1378, 1379 (10 thCir. 1997), cert. denied, 118 S. Ct. 1098 (1998). Hunt’s primary contention on appeal is that the dis trict court erred by declining to rule specifically on Hunt’s various objections to the drug quantities utilized to calculate Hunt’s base offense level in the PSR. Hunt’s arguments on appeal represent a fundamental misunderstanding of the Sentencing Guidelines. Part A of chapter 5 of the Sentencing Guidelines es tablishes a Sentencing Table. The offense level (numbers one through forth-three) forms the vertical access of the Sentencing Table; the criminal history categoryrepresents the horizontal axis of the Table. See U.S.S.G. ch. 5 pt. A, Sentencing Table, applicatio n note 1. Because Hunt is an adult, the instant crime involve d a controlled substance felony, and Hunt has at least two prior felonies wh ich are crimes of violence or controlled substance offenses, Hunt is a career off ender under U.S.S.G. § 4B1.1. Accordingly, Hunt’s criminal history category is se t at VI. Hunt does not appear to contest these calculations which establish the p arameters of the horizontal axis of the sentencing table. It is the vertical axis of the Table which appears to cause Hunt trouble. The PSR established a base offense level 40. Inclu ded in that calculation were thirty-six points based on the quantity of methamph etamine attributed to Hunt as relevant conduct and four points based on the Hunt’ s role as a leader and1 Section 841(b)(1)(A)(viii) imposes a potential pena lty of life imprisonment

if the substantive drug violation covered by § 841( a) involved, inter alia , more than 100 grams of methamphetamine. Hunt does not d ispute that the offense of conviction involved approximately 145 grams of meth amphetamine seized at his residence. Instead, his objections go only to addi tional quantities of methamphetamine added to the calculation as “relevant conduct.”

2 In fact, any base offense level above 36, coupled w ith a criminal history category of VI, results in a sentencing range of 36 0 months to life. See U.S.S.G. ch. 5 pt. A, Sentencing Table. -4- organizer of an extensive methamphetamine distribut ion enterprise. A base offense level of 40 coupled with a criminal historycategory of VI results in a sentencing range of 360 months to life. See U.S.S.G. ch. 5 pt. A, Sentencing Table. Hunt objected to the PSR claiming the Unite d States had failed to prove all of the quantities of methamphetamine used in th e calculation of the base offense level. At the sentencing hearing, however, the district court specifically and correctly concluded that it did not need to res olve Hunt’s objections because even if Hunt prevailed it would not alter his sente ncing range. In particular, the district court noted that § 4B1.1 of the Guidelines establishes special rules for calculating the base offense level of career offend ers. When the offense of conviction involves a potential statutory maximum l ife sentence, as does Hunt’s, 1
the minimum base offense level is 37. A base offen se level of 37 coupled with a criminal history category of VI results in a senten cing range of 360 months to life. 2 See id. Thus, based on the operation of § 4B1.1, 360 months is the minimum sentence Hunt could have received. Recogni zing that Hunt’s sentencing3 This court is surprised that Hunt chose to appeal this issue, particularly in

light of the following exchange between the distric t court and Hunt’s counsel at the sentencing hearing:

The Court : The Court would make a finding in this case that this Defendant is a career offender pursuant to Sec tion 4B1.1 of the guidelines. Whether this Court goes through all of the objections and receives testimony on all of the objections filed o n Mr. Hunt’s behalf to the Presentence Report–I would note that the Pre sentence Report places Mr. Hunt at a 40 base level offense and a Cr iminal History Category of VI, which under the guidelines makes hi s guideline range 360 months to life Whether the Court sentences, after receiving testim ony on all of those various objections and he ends up there orthe fact that this Court makes a finding, which I have, that Mr. Hunt is a career offender pursuant to the guidelines, his guideline range is the same under the Career Offender Guideline. Mr. Hunt’s guideline range is also the 360 months t o life. By making the finding that he is a career offender it really trumps, if you will, the various objections which have been filed on Mr. Hunt’s behalf . . . . Certainly the Court would note your response, whichthis court has reviewed, to the sentencing memoranda in which you note your various objections to the Constitutionality of the guidelines and recite other reasons pertaining to the Career Offen der Statute, but do you have an objection to the Court handling this se ntence this way?
Counsel : No, ma’am. I understand your ruling that he is a career offender. We’re in the guideline range of 3 60 to life. I think that makes my objections moot, pending whether or n ot the Appellate Court affirms you on that. -5- range would not change no matter the resolution of Hunt’s objections to the PSR and in light of its decision to sentence Hunt to th e minimum sentence available under the Guidelines, the district court properly c oncluded that Hunt’s objections to the PSR were moot. 3I think we all understand I’m not waiving the objec tions. In

case we are successful on appeal, we would have to have a resentencing to determine the amounts. I understan d what you are doing today. I explained that I thought you would do that and we discussed it prior to entering the courtroom. I have no objection to you proceeding as you have indicated. Accordingly, it appears clear that at the time of t he sentencing hearing, Hunt understood that his classification as a career offe nder set a minimum term of 360 months imprisonment under the guidelines and that i n light of that classification all of his objections to the PSR were moot. Hunt d id, however, indicate that if he could succeed on appeal in overturning the career o ffender classification, it would be necessary to take up the objections. Neverthele ss, Hunt has not challenged the propriety of the career offender classification on appeal. Accordingly, his challenge to the district court’s failure to specif ically address his objections to the PSR seems, at the very least, quizzical. -6- Hunt argues for the first time on appeal that his c onviction should be vacated because the United States adduced at trial the testimony of two cooperating witnesses who agreed to testify for the United States in exchange for leniency. According to Hunt, the government’s offe rs of leniency to the cooperating witnesses violated 18 U.S.C. § 201(c)(2 ). This court recently rejected this argument in United States v. Singleton , No. 97-3178, 1999 WL 6469 (10 thCir. Jan. 8, 1999) (en banc). In Singleton , this court concluded that “section 201(c)(2) was not intended to apply to the United S tates or its attorneys.” Id. at *5. Singleton controls here and precludes Hunt’s claim of error.-7-

For those reasons set out above, the judgment and s entence entered by the United States District Court for the Western Distri ct of Oklahoma is hereby
AFFIRMED

. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge