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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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 Districts 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, and BALDOCK, Circuit

Judges.
1When the defendant raised Blakely before 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 a one-count indictment

charging him with conspiracy to distribute at least 50 grams of methamphetamine,

in violation of 21 U.S.C. §§ 841 and 846. He appeals his 150-month sentence,

arguing (1) that the district court clearly erred in estimating the drug quantity it

relied on for sentencing, and (2) the sentence violated 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 quantity of items that are used in

methamphetamine manufacturing. Police stopped Dalton and Talina Richmond

(“Richmond”) as they were leaving the store and found in their truck

incriminating items, including twelve cans of starting fluid, several blister packs

of pseudoephedrine, stained coffee filters, a set of digital scales, and numerous
2Although the indictment charged Dalton with conspiracy to deliver only 50

or more grams of methamphetamine, the district court took into account all

quantities of drugs involved as relevant conduct under 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 amount seized does not reflect the

scale of the offense, the court shall approximate the quantity of the controlled

substance. In making this determination, the court may consider, for example, the

(continued...)

-3-

syringes. Methamphetamine was also found in the vehicle and on Richmond’s

person. The officers subsequently executed a search warrant on the trailer home

Dalton and Richmond shared and found items indicative of a methamphetamine

laboratory, such as a propane bottle with blue corrosion, cans of solvent, a bottle

of HEET, and a propane camp stove. About forty yards from the home, in a

wooded area, officers discovered a camouflaged trunk containing numerous cans

of starting fluid, glassware, coffee filters, funnels, plastic tubing, bottles of

HEET, and wooden spoons. Officers also found a ledger wherein Dalton had

recorded nearly $10,000 in drug debts owed to him. The total amount of

methamphetamine recovered from the truck and the trailer was 51.33 grams.

Dalton was arrested and charged with one count of conspiracy to distribute

50 or more grams of methamphetamine. He pleaded guilty without the benefit of

a plea agreement. The presentence report (“PSR”) recommended 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 report to
2

(...continued)

price generally obtained for the controlled substance, financial or other records,

similar transactions in controlled substances by the defendant, and the size and

capability of any laboratory involved.”

-4-

officers that she had lived with Dalton for four months, during which time they

produced about an ounce of methamphetamine two to three times per week.

Dalton objected to the PSR’s conclusions about the amount of methamphetamine

manufactured. The government subsequently called Richmond to testify on its

behalf at the sentencing hearing.

Richmond’s testimony at the hearing, however, varied from what she had

previously told investigators. On cross-examination, 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 defense noted at the hearing that if

those dates were correct, the period of cohabitation 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 manufacturing occurred during the

first fourteen days she lived with Dalton. But she could not remember the first

few times that methamphetamine was cooked, could not give a number of times
-5-

methamphetamine was cooked, and stated that sometimes she would sleep while

Dalton performed the process. When asked whether in previous interviews with

investigators she had guessed about the quantity of methamphetamine

manufactured per week, Richmond stated, “I don’t remember . . . on a lot of it. I

mean I’m not going to say for sure.” Tr. of Sentencing Hr’g at 30, R. Vol. III. 

She also testified that she had used methamphetamine 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 periods of wakefulness

followed by long periods of sleep.

The district court stated on the record that Richmond’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 preponderance 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 pseudoephedrine seized from the

trailer home, and the other evidence of the methamphetamine laboratory, the

judge also found by a preponderance of the evidence that Dalton cooked

methamphetamine two times per week, with approximately .75 ounces
-6-

manufactured per occasion, resulting in slightly over 350 grams of

methamphetamine mixture involved in this case. The finding of 350 grams

brought the base offense level to 30 under USSG §2D1.1(c). The court deducted

three points for Dalton’s acceptance of responsibility, 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’ imprisonment, the top of the range,

noting that the lengthy sentence was “to provide just punishment, to promote

respect for the law, and to protect the public.” Tr. 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 determination under USSG

§2D1.1, comment. (n.12), that he was responsible for manufacturing at least 350

grams of methamphetamine. We review a district court’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 conviction 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 underlying a drug quantity

determination are not seized, the trial court may rely 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 particular case and bears sufficient

indicia of reliability.’” United States v. Ruiz-Castro, 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 drug quantities by guesswork.” 

United States v. Richards, 27 F.3d 465, 469 (10th Cir. 1994) (further quotation

omitted).

After reviewing the transcript of the sentencing hearing in this case, we are

convinced that the district court’s drug-quantity estimation was not clearly

erroneous. Richmond’s testimony, although vague, was corroborated by

numerous other items of evidence, including ingredients in the methamphetamine

recipe—twelve cans of starting fluid and several blister packs of

pseudoephedrine—and items indicative of a manufacturing laboratory. Officers

also found a ledger in which at least $10,000 in drug debts were recorded and

learned of a letter Dalton wrote from prison in which he set forth the recipe for

manufacturing the drug and instructed his friends to use it to raise bail money. 

All of these items are properly considered in the drug 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 recess to closely review Richmond’s

testimony, the PSR, and the other evidence. The court’s drug-quantity

determination had sufficient factual support.

II. Booker claim

Booker held that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. 

District courts post-Booker are required to consult the Guidelines in fashioning

sentences, but they are not required to sentence within the Guidelines range. 

United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc). 

Constitutional Booker error occurs when the district court “re[lies] on judgefound facts . . . to enhance a defendant’s sentence mandatorily.” Id.

Booker therefore does not render judicial fact-finding by a preponderance

of the evidence per se unconstitutional. The remedial portion of Booker

demonstrates that such fact-finding is unconstitutional 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 review, 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 also United States v. TrujilloTerrazas, 405 F.3d 814, 818 (10th Cir. 2005) (“By rendering the Guidelines

discretionary, the Court saved the process of judicial factfinding from

unconstitutionality under the Sixth Amendment.”)

Dalton argues that the district court committed constitutional Booker error

by finding by a preponderance of the evidence that he conspired to deliver 350 or

more grams of methamphetamine. He contends that his 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 review for plain error. 

Booker, 125 S. Ct. at 769 (“[W]e expect reviewing courts to apply ordinary

prudential doctrines, determining, for example, whether 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) seriously affects the fairness, integrity, or
-10-

public reputation of judicial proceedings.’” Gonzalez-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 operating 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 we 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 reviewing court may in its

discretion correct the error if the error “seriously 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 this 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 that a defendant has

satisfied the fourth prong: 

(a) a sentence increased substantially based on a Booker error; (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 required the district court

to impose; (d) a showing that objective consideration of the [21

U.S.C.] § 3553(a) factors warrants a departure from the sentence

suggested by the Guidelines, or (e) other evidence peculiar to the

defendant that demonstrates a complete breakdown in the 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 that, on balance, Dalton

has not shown that we should exercise our discretion under the fourth prong. 

First, whether Dalton’s sentence was substantially increased based on the Booker

error is open for debate. Without any judicial fact-finding, Dalton would have

been responsible for the 50 grams in the indictment to 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 necessarily be considered

“substantial.” In the circumstances of this case, this factor is not dispositive of
-12-

our holding since, as our discussion below demonstrates, the other factors listed

above predominate.

 Accordingly, applying the second factor, even if we were to remand, the

district court likely would not impose a lighter sentence. 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 imprisonment 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 under 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 the

event of remand because the judge already had discretion to impose a lower

sentence but opted not to use that discretion.

Third, the sentence is supported by sufficient evidence in this case. 

Although, as detailed above, Richmond’s testimony was vague and contradictory

at times, it was strongly corroborated by other evidence, 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 support a lesser sentence. 

When imposing a sentence at the top of the range, the court commented that the

lengthy sentence was warranted “to provide just punishment, to promote respect

for the law, and to protect the public.” Tr. of Sentencing 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 did 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 respect for the law,” to “provide

just punishment for the offense,” and to “protect the public from further crimes of

the defendant”).

Finally, we can identify no peculiar evidence in this case demonstrating a

breakdown in the sentencing process. Therefore, on balance, the defendant has

not shown that the error in this case seriously affected 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.