* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 

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

### June 1, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 04-7043 LOUIE ANTHONY DALTON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. NO. 03-CR-100-WH)

Submitted on the briefs: * Paul D. Brunton, Federal Public Defender, Michael A . Abel, Assistant Federal Public Defender, Barry L. Derryberry, Research and Writing Specialist, Office of the Federal Public Defender, Northern and Eastern D istricts of Oklahoma, Tulsa, Oklahoma, for Defendant - Appellant. Sheldon J. Sperling, United States Attorney, Ryan M . Roberts, Assistant United States Attorney, Muskogee, Oklahoma, for Plaintiff - Appellee.

Before TACHA, Chief Circuit Judge, ANDERSON , andBALDOCK , Circuit Judges.1 When the defendant raised Blakelybefore this court, the Supreme Court

had not yet issued Booker . We nonetheless apply both cases. -2- ANDERSON , Circuit Judge.

Louie Anthony Dalton (“Dalton”) pleaded guilty to aone-count indictment charging him with conspiracy to distribute at least50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. He appea ls his 150-month sentence, arguing (1) that the district court clearly erred i n estimating the drug quantity it relied on for sentencing, and (2) the sentence viol ated Blakely v. Washington , 124 S. Ct. 2531 (2004), and United States v. Booker , 125 S. Ct. 738 (2005), 1 because it was based on a judicial finding of drug quantity . We AFFIRM.

BACKGROUND On October 6, 2003, police in Sallinsaw, Oklahoma, received a tip that Dalton had purchased from Wal-Mart a large quantityof items that are used in methamphetamine manufacturing. Police stopped Dalt on and Talina Richmond (“Richmond”) as they were leaving the store and fou nd in their truck incriminating items, including twelve cans of start ing fluid, several blister packs of pseudoephedrine, stained coffee filters, a set o f digital scales, and numerous2 Although the indictment charged Dalton with conspir acy to deliver only 50

or more grams of methamphetamine, the district court took into account all quantities of drugs involved as relevant conduct un der United States Sentencing Commission, Guidelines Manual (“USSG” or “Guidelines”) §1B1.3. The court also determined that USSG §2D1.1, comment. (n.12), applied. That note states that “[w]here there is no drug seizure or the amoun t seized does not reflect the scale of the offense, the court shall approximate t he quantity of the controlled substance. In making this determination, the courtmay consider, for example, the (continued...) -3- syringes. Methamphetamine was also found in the ve hicle and on Richmond’s person. The officers subsequently executed a searc h warrant on the trailer home Dalton and Richmond shared and found items indicati ve of a methamphetamine laboratory, such as a propane bottle with blue corr osion, cans of solvent, a bottle of HEET, and a propane camp stove. About forty yar ds from the home, in a wooded area, officers discovered a camouflaged trun k containing numerous cans of starting fluid, glassware, coffee filters, funne ls, plastic tubing, bottles of HEET, and wooden spoons. Officers also found a led ger wherein Dalton had recorded nearly $10,000 in drug debts owed to him. The total amount of methamphetamine recovered from the truck and the tr ailer was 51.33 grams. Dalton was arrested and charged with one count of c onspiracy to distribute 50 or more grams of methamphetamine. He pleaded gu ilty without the benefit of a plea agreement. The presentence report (“PSR”) r ecommended that Dalton be held responsible for manufacturing 700 grams of methamphetamine over the course of four months. 2 This quantity was based on Richmond’s initial rep ort to2 (...continued)

price generally obtained for the controlled substan ce, financial or other records, similar transactions in controlled substances by th e defendant, and the size and capability of any laboratory involved.” -4- officers that she had lived with Dalton for four mo nths, during which time they produced about an ounce of methamphetamine two to t hree times per week. Dalton objected to the PSR’s conclusions about the amount of methamphetamine manufactured. The government subsequently called R ichmond to testify on its behalf at the sentencing hearing. Richmond’s testimony at the hearing, however, varie d from what she had previously told investigators. On cross-examinatio n, she testified that she began living with Dalton after her second arrest for drug activity, which she admitted was around the middle of August 2003. That living arrangement continued until the Wal-Mart arrest on October 6, 2003. The defens e noted at the hearing that if those dates were correct, the period of cohabitatio n was only about a month and a half. Richmond insisted that she was there longer than that but could not remember any dates. Richmond next testified that she and Dalton cooked the methamphetamine in the woods by their home. She stated that no man ufacturing occurred during the first fourteen days she lived with Dalton. But she could not remember the first few times that methamphetamine was cooked, could no t give a number of times-5-

methamphetamine was cooked, and stated that sometim es she would sleep while Dalton performed the process. When asked whether i n previous interviews with investigators she had guessed about the quantity of methamphetamine manufactured per week, Richmond stated, “I don’t re member . . . on a lot of it. I mean I’m not going to say for sure.” Tr. of Senten cing Hr’g at 30, R. Vol. III. She also testified that she had used methamphetamin e for ten years and had ingested the drug daily during the past few years. She admitted that use of the drug affected her memory of dates because of long p eriods of wakefulness followed by long periods of sleep. The district court stated on the record that Richmo nd’s testimony was not proof beyond a reasonable doubt of the drug quantity in the PSR, but found that the testimony bore minimum indicia of reliability. The judge noted that the case was difficult and took a recess to perform his own calculations based on what he had heard. The judge thereafter found by a prepond erance of the evidence that Richmond stayed with Dalton for two and a half months, and drug manufacturing occurred during all but two weeks of that period. Based on Richmond’s testimony, the drug ledger, the 408 tablets of pseu doephedrine seized from the trailer home, and the other evidence of the methamp hetamine laboratory, the judge also found by a preponderance of the evidence that Dalton cooked methamphetamine two times per week, with approximat ely .75 ounces-6-

manufactured per occasion, resulting in slightly ov er 350 grams of methamphetamine mixture involved in this case. The finding of 350 grams brought the base offense level to 30 under USSG §2D 1.1(c). The court deducted three points for Dalton’s acceptance of responsibil ity, which, with a criminal history level of five, set the Guidelines range at 120 to 150 months in prison. The court sentenced the defendant to 150 months’ impris onment, the top of the range, noting that the lengthy sentence was “to provide ju st punishment, to promote respect for the law, and to protect the public.” T r. of Sentencing Hr’g at 70, R. Vol. III. Dalton timely filed this appeal.

DISCUSSION I. Drug quantity determination Dalton first challenges the district court’s determ ination under USSG §2D1.1, comment. (n.12), that he was responsible fo r manufacturing at least 350 grams of methamphetamine. We review a district cou rt’s legal interpretation of the Guidelines de novo. United States v. Johnson , 42 F.3d 1312, 1320 (10th Cir. 1994). Factual findings regarding drug quantities are reviewed for clear error and are reversed “only if the district court’s finding was without factual support in the record or we are left with the definite and firm co nviction that a mistake has been made.” United States v. Ryan , 236 F.3d 1268, 1273 (10th Cir. 2001) (further-7-

quotation omitted). “When the actual drugs underly ing a drug quantity determination are not seized, the trial court may r ely upon an estimate to establish the defendant’s guideline offense level ‘so long as the information relied upon has some basis of support in the facts of the particula r case and bears sufficient indicia of reliability.’” United States v. Ruiz-Ca stro , 92 F.3d 1519, 1534 (10th Cir. 1996) (quoting United States v. Wacker , 72 F.3d 1453, 1477 (10th Cir. 1995)) (further quotation omitted). However, the “ need to estimate drug quantities at times is not a license to calculate d rug quantities by guesswork.” United States v. Richards , 27 F.3d 465, 469 (10th Cir. 1994) (further quotat ion omitted). After reviewing the transcript of the sentencing he aring in this case, we are convinced that the district court’s drug-quantity e stimation was not clearly erroneous. Richmond’s testimony, although vague, w as corroborated by numerous other items of evidence, including ingredi ents in the methamphetamine recipe—twelve cans of starting fluid and several bl ister packs of pseudoephedrine—and items indicative of a manufactu ring laboratory. Officers also found a ledger in which at least $10,000 in dr ug debts were recorded and learned of a letter Dalton wrote from prison in whi ch he set forth the recipe for manufacturing the drug and instructed his friends t o use it to raise bail money. All of these items are properly considered in the d rug quantity calculation. See-8-

USSG §2D1.1, comment. (n.12). And, as noted above, the district court set forth its calculations on the record after taking a reces s to closely review Richmond’s testimony, the PSR, and the other evidence. The co urt’s drug-quantity determination had sufficient factual support.

II. Booker claim Bookerheld that “[a]ny fact (other than a prior convicti on) which is necessary to support a sentence exceeding the maxim um authorized by the facts established by a plea of guilty or a jury verdict m ust be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Bo oker , 125 S. Ct. at 756. District courts post-Bookerare required to consult the Guidelines in fashioni ng sentences, but they are not required to sentence wi thin the Guidelines range. United States v. Gonzalez-Huerta , 403 F.3d 727, 731 (10th Cir. 2005) (en banc). Constitutional Bookererror occurs when the district court “re[lies] on judgefound facts . . . to enhance a defendant’s sentence mandatorily.” Id. Bookertherefore does not render judicial fact-finding by a preponderance of the evidence per se unconstitutional. The remed ial portion of Booker demonstrates that such fact-finding is unconstituti onal only when it operates to increase a defendant’s sentence mandatorily . We recently noted that “in sentencing criminal defendants for federal crimes, district courts are still required-9-

to consider Guideline ranges, which are determined through application of the preponderance standard, just as they were before. The only difference is that the court has latitude, subject to reasonableness revie w, to depart from the resulting Guideline range.” United States v. Magallanez , No. 04-8021, __ F.3d__, 2005 WL 1155913, at *8 (10th Cir. May 17, 2005). See al so United States v. TrujilloTerrazas , 405 F.3d 814, 818 (10th Cir. 2005) (“By rendering the Guidelines discretionary, the Court saved the process of judic ial factfinding from unconstitutionality under the Sixth Amendment.”) Dalton argues that the district court committed con stitutional Bookererror by finding by a preponderance of the evidence that he conspired to deliver 350 or more grams of methamphetamine. He contends that hi s sentence should be reversed and the case remanded because without the district court’s drug-quantity finding, which was based on testimony of an unreliable witness, he would only have been responsible for the 50 grams charged in the indictment. Because Dalton did not raise this issue below, we r eview for plain error. Booker , 125 S. Ct. at 769 (“[W]e expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whe ther the issue was raised below and whether it fails the ‘plain-error’ test.” ); Gonzalez-Huerta , 403 F.3d at 732. “‘Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriouslyaffects the fairness, integrity, or-10-

public reputation of judicial proceedings.’” Gonza lez-Huerta , 403 F.3d at 732 (quoting United States v. Burbage , 365 F.3d 1174, 1180 (10th Cir.), cert. denied , 125 S. Ct. 510 (2004)). When constitutional rights are at stake, plain-error review is conducted less rigidly. United States v. Brown , 316 F.3d 1151, 1155 (10th Cir. 2003). Constitutional rights are clearly at issue in this case because Dalton’s sentence was mandatorily enhanced based on judicial fact-finding. Dalton has met the first two prongs of the plain-error test: there was error in this case, because the district court was operat ing under Guidelines it thought were mandatory, and that error was plain. See United States v. Dazey , 403 F.3d 1147, 1174-75 (10th Cir. 2005). However, because w e conclude below that Dalton cannot meet the fourth prong of plain-error review, we need not decide whether his substantial rights were affected. See United States v. Cotton , 535 U.S. 625, 632-33 (2002); Gonzalez-Huerta , 403 F.3d at 736. Under the fourth prong of plain-error review, the r eviewing court may in its discretion correct the error if the error “seriousl y affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano , 507 U.S. 725, 732 (1993) (internal quotation marks omitted). The fourth-prong standard is relaxed in cases of constitutional error, such as t his case, but the defendant still bears the burden of showing that we should exercise our discretion. Dazey , 403 F.3d at 1178.-11-

We recently outlined five factors that might show t hat a defendant has satisfied the fourth prong: (a) a sentence increased substantially based on a B ookererror; (b) a showing that the district court would likely impose a significantly lighter sentence on remand; (c) a substantial lack of evidence to support the entire sentence the Guidelines requiredthe district court to impose; (d) a showing that objective considerati on of the [21 U.S.C.] § 3553(a) factors warrants a departure fromthe sentence suggested by the Guidelines, or (e) other evidence peculiar to the defendant that demonstrates a complete breakdown inthe sentencing process. United States v. Dowlin , Nos. 03-8038 & 03-8055, __ F.3d __, 2005 WL 1155882, at *18 (10th Cir. May 17, 2005) (citations omitted). Applying these factors to this case, we conclude th at, on balance, Dalton has not shown that we should exercise our discretio n under the fourth prong. First, whether Dalton’s sentence was substantially increased based on the Booker error is open for debate. Without any judicial fac t-finding, Dalton would have been responsible for the 50 grams in the indictmentto which he pled guilty, which would have resulted in a total offense level of 23 and a Guidelines range of 84 to 105 months. The finding of 350 grams increased the offense level to 27, with a Guidelines range of 120 to 150 months, an increase of three years and nine months. We need not resolve whether this increase must nece ssarily be considered “substantial.” In the circumstances of this case, this factor is not dispositive of-12-

our holding since, as our discussion below demonstr ates, the other factors listed above predominate. Accordingly, applying the second factor, even if w e were to remand, the district court likely would not impose a lighter se ntence. After the district court determined that the applicable Guidelines range was 120 to 150 months’ imprisonment, it sentenced Dalton to 150 months in prison, at the top of the range. We recently held that the fourth prong was not satisfied because the defendant was sentenced to the maximum term of impr isonment the court could impose. United States v. Mozee , 405 F.3d 1082, 1092 (10th Cir. 2005). We concluded that there was “no basis for us to assume that [the defendant] would receive a lesser sentence if he were resentenced un der a discretionary sentencing regime in which the district court is required to ‘ consider’ the guidelines when it exercises its discretion.” Id. Dalton’s sentence likewise would not change in th e event of remand because the judge already had discr etion to impose a lower sentence but opted not to use that discretion. Third, the sentence is supported by sufficient evid ence in this case. Although, as detailed above, Richmond’s testimony w as vague and contradictory at times, it was strongly corroborated by other evi dence, including the items indicative of a methamphetamine laboratory found in Dalton’s vehicle and trailer home.-13-

Fourth, the 18 U.S.C. § 3553(a) factors do not supp ort a lesser sentence. When imposing a sentence at the top of the range, t he court commented that the lengthy sentence was warranted “to provide just pun ishment, to promote respect for the law, and to protect the public.” Tr. of Se ntencing Hr’g at 70, R. Vol. III. These comments demonstrate that the district court considered the sentencing factors under 18 U.S.C. § 3553(a) and found they di d not favor a decreased term of imprisonment. See § 3553(a)(2)(A)–(C) (stating that the court shall consider the need for the sentence imposed to “promote respe ct for the law,” to “provide just punishment for the offense,” and to “protect t he public from further crimes of the defendant”). Finally, we can identify no peculiar evidence in th is case demonstrating a breakdown in the sentencing process. Therefore, onbalance, the defendant has not shown that the error in this case seriously aff ected the fairness, integrity or public reputation of judicial proceedings, and thus he has not satisfied plain-error review.

CONCLUSION Accordingly, we AFFIRM Dalton’s sentence.