F IL E D United States Court of Appeals Tenth Circuit
January 26, 2007 U N IT E D ST A T E S C O U R T O F A PP E A L S Elisabeth A. Shumaker T E N T H C IR C U IT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-5018
v. (N .D. of Okla.)
DA VID A LAN W ESTCOTT, (D.C. No. CR-02-120-02-EA)
Defendant-Appellant. ____________________________
Plaintiff-Appellee, No. 06-5019
C HA RLES A RN O LD M O O K , (D.C. No. CR-02-120-04-EA)
Plaintiff-Appellee, No. 06-5026
M O RG AN EA RL WIN D RIX , (D.C. No. CR-02-120-01-EA)
Defendant-Appellant.
O R D E R A N D JU D G M E N T *
* This order and judgment is not binding precedent except under the (continued...) Before , H A R T Z, E B E L, and T Y M K O V IC H , Circuit Judges. * *
Defendants-Appellants M organ Earl W indrix, Charles Arnold M ook, and
David Alan W estcott appeal their sentences for their roles in an Oklahoma
methamphetamine ring. All three were convicted of conspiring to manufacture
and distribute methamphetamine in violation of 21 U.S.C. § 846, and of
possessing equipment and chemicals for the manufacture of methamphetamine in
violation of 21 U.S.C. § 843(a)(6). W indrix was further convicted of possessing
methamphetamine with the intent to distribute in violation of 21 U.S.C. § 843,
and maintaining a drug house in violation of 21 U.S.C. § 856(a)(1) and (b). M ook
was additionally convicted of being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). These consolidated appeals follow re-
sentencing. Appellants’ first sentences w ere overturned for error under United
* (...continued) doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007). ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
-2- States v. Booker, 543 U.S. 220 (2005). See United States v. Windrix, 405 F.3d
1146 (10 th Cir. 2005) (Windrix I). 1
W e exercise jurisdiction under 21 U.S.C. § 1291, and AFFIRM the district
court.
I. Background
In Windrix I, we vacated each Appellant’s sentence to allow for re-
sentencing under an advisory Guidelines scheme consistent with Booker. In doing
so, we voiced concern with the district court’s attribution of actual
methamphetamine to all three Appellants, noting that without laboratory testing,
an assumption that all the methamphetamine w as pure may be mistaken. In
accordance with our remand, the district court resentenced each Appellant de
novo. Each Appellant challenges the reasonableness of his new sentence.
W estcott and M ook each make further challenges regarding the drug quantities
attributed to them and the district court’s mandate on re-sentencing. W e review
the facts relevant to each Appellant’s sentence.
A . W indrix
W indrix was originally sentenced to life in prison under the then mandatory
Guidelines. He was found to be accountable for 1.927 kilograms of actual
1 The substance of all three Appellants’ crim inality is detailed in W indrix I, and will not be repeated here. See 405 F.3d at 1148–52.
-3- methamphetamine w hich provided a base offense level of 38. The district court
added two levels for W indrix’s possession of a firearm. Four more levels were
added for his leadership role in the conspiracy, which placed his offense level at
43, the maximum. Combined with W indrix’s criminal history category I, the
Guidelines prescribed life imprisonment.
On remand, the district court attributed drug quantities to W indrix in excess
of those found by the jury, finding W indrix accountable for 8.85 kilograms of a
substance containing methamphetamine. This set his base offense level at 36
based on the difference between the jury’s finding of “actual” methamphetamine
versus the court’s “substance containing” finding. W ith the firearm and
leadership enhancements W indrix’s offense level was therefore reduced to 42.
Combined with his criminal history category of I, the Guidelines recommended
360 months to life imprisonment. Explicitly taking the factors under 18 U.S.C. §
3553(a) into account, the court sentenced W indrix to 360 months for the
conspiracy and equipment convictions, 120 months for the equipment conviction,
and 240 months for possession with intent to distribute, with the sentences to run
concurrently.
B . W estcott
W estcott was originally sentenced to 360 months in prison, the minimum
available under the then mandatory Guidelines. He was found to be accountable
-4- for 1.927 kilograms of actual methamphetamine w hich provided a base offense
level of 38. Combined with W estcott’s criminal history category of V, the
Guidelines prescribed 360 months to life imprisonment. At re-sentencing, noting
our concern w ith the attribution of actual methamphetamine absent laboratory
tests the court held W estcott accountable for 8.845 kilograms of a substance
containing methamphetamine. This set his base offense level at 36. W ith
W estcott’s criminal history category of V, the Guidelines recommended 292 to
365 months imprisonment. Explicitly taking the factors under 18 U.S.C.
§ 3553(a) into account, the court sentenced W estcott to 292 months: 240 months
for the conspiracy and equipment convictions, and 52 months for the firearm
count.
C . M ook
M ook was originally sentenced to 360 months in prison, also the minimum
available under the then mandatory Guidelines. He was found to be accountable
for 1.84 kilograms of actual methamphetamine w hich provided a base offense
level of 38. The district court added two levels for M ook’s possession of a
firearm which left his offense level at 40. Combined with M ook’s criminal
history category of III, the Guidelines prescribed 360 months to life
imprisonment.
-5- At re-sentencing, the court held M ook accountable for 5.4 kilograms of a
substance containing methamphetamine. This set his base offense level at 36.
W ith the firearm enhancement and M ook’s criminal history category of III, the
Guidelines recommended 292 to 365 months imprisonment. Explicitly taking the
factors under 18 U.S.C. § 3553(a) into account, the court sentenced M ook to 292
months: 240 months for the conspiracy and equipment convictions, and 52 months
for the firearm count.
II. D iscussion
In reaching all three Appellants’ second sentences, the district court
attributed drug quantities to them in excess of those found by the jury. At re-
sentencing, W estcott and M ook objected to the new sentence, arguing that the
court could not legally hold them accountable for more then 50 grams of
methamphetamine or 500 grams of a mixture because the jury had acquitted them
of charges alleging they distributed more than these amounts of drugs. They also
argued that the law of the case precluded the district court from recalculating the
weight of the methamphetamine attributable to them at re-sentencing. They
argued that allow ing the district court to recalculate the drug w eight would cause
Booker to operate in a manner that violates ex post facto principles of the Due
Process C lause. All three Appellants contended their sentences w ere
unreasonable under Booker.
-6- W e address the same arguments on appeal.
A . Scope of D istrict C ourt A uthority to C alculate D rug Q uantity on R em and
W estcott’s and M ook’s first two contentions on appeal concern the district
court’s calculation of the drug quantity attributable to them. Each maintains first
that the district court could not hold him responsible for more methamphetamine
than the jury did. Alternatively, they argue that the district court was bound by
the law of the case to adhere to its calculation of drug w eight used in the first
sentencing because this court did not grant a mandate for de novo re-sentencing.
1. Impact of Jury Verdict
W estcott’s and M ook’s argument that the district court could not consider
facts contrary to the jury verdict at re-sentencing is foreclosed by our caselaw . In
United States v. M agallanez, we held that a sentencing court has broad discretion
to consider information regarding a defendant’s conduct, even conduct that
conflicts with a jury verdict. 408 F.3d 672, 684–85 (10th Cir. 2005). The
holding of M agallanez is based on the different standards of proof that apply at
trial and at sentencing. At trial, guilt is determined beyond a reasonable doubt.
Id. at 684. “[E]ven after United States v. Booker, 543 U.S. 220 (2005)[],
sentencing courts determine relevant facts based on a preponderance standard.”
Id. at 685. M ost other circuits agree. See, e.g., United States v. Valdez, 453 F.3d
252, 264 (5th Cir. 2006); United States v. Vaughn, 430 F.3d 518, 527 (2d Cir.
-7- 2005); United States v. Price, 418 F.3d 771, 788 (7th Cir. 2005). W e therefore
reject the argument that the sentencing judge could not hold W estcott and M ook
accountable for more methamphetamine than the jury found was attributable to
them at trial.
2. Law of the Case
W estcott and M ook also contend that the district court could not depart
from its determination that 1.927 and 1.84 kilograms of methamphetamine w ere
attributable to them, respectively. In doing so, they allow that the district court
could determine that the established weights were of a substance containing
methamphetamine and not pure methamphetamine. They insist, however, that the
total weight attributable to each must remain unchanged because this court did not
grant a m andate to reconsider the total w eight of illegal substances attributable to
them. If W estcott and M ook are correct, the district court went beyond its
authority when it simultaneously found that W estcott and M ook were responsible
for a mixture and not pure methamphetamine and that the total amount of the
mixture attributable to each was 8.845 and 5.4 kilograms, respectively.
As a general matter, re-sentencing on remand is done de novo. United
States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999). W e may, however, limit
district court discretion on remand pursuant to the mandate rule. Id. This rule
requires the district court to exercise its discretion in conformity with the
-8- appellate court’s remand. United States v. Hicks, 146 F.3d 1198, 1200 (10th Cir.
1998). 2 Our caselaw requires that we be specific if we intend to limit a district
court’s discretion on remand for re-sentencing. Compare United States v. Webb,
98 F.3d 585, 587 (10th Cir. 1996) (panel gives direction to resentence defendant
within range of 27 to 33 months) with United States v. Davis, 912 F.2d 1210,
1215 (10th Cir. 1990) (providing for general remand).
Our remand in this case was not so specific. W e simply “set aside
Defendants’ sentences and remand for resentencing.” Windrix I, 405 F.3d at
1158. It is true that we urged the district court to “note a concern regarding the
determination of the purity of the methamphetamine prepared by Defendants.” Id.
This language, however, did not limit the district court’s discretion, but explicitly
advised it to consider using its broad discretion to revisit its earlier finding
regarding drug purity. That we invited a recalculation of drug purity does not
lead to the conclusion that we foreclosed any new thinking regarding the drug
amount. W e therefore reject the argument that the district court was required by
2 The mandate rule is a relative of the law of the case doctrine, which W estcott cites. This doctrine requires that findings m ade at one point in litigation m ay not be contested at a later stage, except under lim ited circum stances. United States v. W ebb, 98 F.3d 585, 587 (10th Cir. 1996).
-9- the law of the case or the mandate rule to conform to its earlier calculation of
drug weight. Re-sentencing for all three Appellants was appropriately de novo. 3
B . E x Post Facto
All three Appellants contend that the remedial holding of Booker violates
ex post facto principles of the Due Process Clause of the Constitution. This
argument is similarly foreclosed by our precedent. We first held that Booker does
not run afoul of ex post facto principles in United States v. Rines, 419 F.3d 1104,
1106–07 (10th Cir. 2005). W e recently explained the reasoning behind this rule
in United States v. Portillo-Quezada, 469 F.3d 1345, 1354–56 (10th Cir. 2006).
In short, nothing in Booker altered the statutory maximum sentences to which
W indrix, W estcott and M ook were subject for their criminal conduct. Their
exposure to punishment was therefore unchanged by re-sentencing and ex post
facto principles are not implicated on remand. See id. W e are thus unpersuaded
by the argument that the sentences violate ex post facto principles of the Due
Process Clause. 4
3 W e note the Fifth Circuit has recently articulated a different approach to the m andate rule. See U nited States v. Pineiro, 470 F.3d 200 (5th Cir. 2006) (holding that without explicit m andate, a district court’s authority on remand for re-sentencing did not include authority to recalculate applicable advisory Guidelines range). Suffice it to say that our precedent forecloses such an approach. 4 W e sim ilarly reject W indrix’s argument that the district court could not consider uncharged conduct in determ ining his sentence. “[W]hen a trial judge (continued...)
-10- C . D ru g Q uantity A ttribu tab le to W estcott
W estcott contends the government did not present sufficient evidence to
allow the district court to attribute 8.845 kilograms of a mixture containing
methamphetamine to him. Under the advisory Guidelines, the government must
prove, by a preponderance of the evidence, that drug quantities for which a
participant in a drug conspiracy is held responsible were “reasonably foreseeable”
to him. See USSG § 1B1.3(A)(1)(B). In determining the weight of drugs
involved in a drug conspiracy, the district court may rely on estimates supported
by the facts of the case when actual drugs are not seized. United States v. Ruiz-
Castro, 92 F.3d 1519, 1534 (10th Cir. 1996). These estimates can be provided by
the testimony of witnesses and co-conspirators. Id. W e review the district court’s
factual findings regarding drug quantities for abuse of discretion.
4 (...continued) exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” Booker, 543 U.S. at 233. In our cases interpreting Booker, we have repeatedly recognized that sentence enhancements do not violate the Sixth Amendment where the sentencing court applies the G uidelines in an advisory fashion. United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006); United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005); United States v. M agallanez, 408 F.3d 672, 685 (10th Cir. 2005); United States v. Lawrence, 405 F.3d 888, 890 (10th Cir. 2005). In light of these holdings, W indrix has no right to a jury determination of the facts the trial judge deems relevant in arriving at his sentence, so long as that sentence is reasonable.
-11- W estcott maintains that most of the 8.845 kilograms of methamphetamine
was not reasonably foreseeable to him because unlike his co-defendants, he did
not live in the trailer w here the methamphetamine was manufactured. W estcott
argues that trial testimony show ed only that he would arrive after most
methamphetamine “cooks” and clean the equipment used to make the drugs so as
to use the remaining “scraps” to satisfy his own drug habit. He concedes that trial
testimony also showed that he broke down ingredients for methamphetamine
several times, but contends that this means he did not participate in all the
manufacturing sessions during the life of the conspiracy as found by the district
W e disagree. The district court arrived at the 8.845 kilograms by reviewing
available testimony and attributing to W estcott the amount of methamphetamine
manufactured by the conspiracy during the period W estcott participated in it. The
district court did not commit clear error in attributing these amounts to W estcott
even if his role was primarily to clean up the equipment after a manufacturing
session. Other evidence established knowing participation in manufacturing the
methamphetamine, its preparation as well as the related clean up and disposal.
D . B ooker R eason ableness
Finally, all three Appellants argue that their sentences are unreasonable.
W e review sentences for reasonableness in light of the factors set forth in 18
-12- U.S.C. § 3553(a). United States v. Galarza-Payan, 441 F.3d 885, 887 (10th Cir.
2006). A properly calculated Guideline sentence is “entitled to a rebuttable
presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006) (per curiam). In evaluating a district court’s calculation of the
applicable Guideline range, we review its factual conclusions for clear error and
its legal conclusions de novo. Id.
W indrix, W estcott and M ook were properly sentenced within the applicable
Guideline range. 5 Their sentences are therefore presumptively reasonable. W e
address the reasonableness of each Appellant’s sentence in turn.
1. Windrix
W indrix argues that Kristl runs afoul of Booker and Blakely v. Washington,
542 U.S. 296 (2004). Although we disagree with his premise, even if we found
the argument persuasive, we are bound by our precedent. See United States v.
M eyers, 200 F.3d 715, 720 (10th Cir. 2000) (noting that one panel may not
overrule another panel).
5 W estcott alone argues that his sentence was improperly calculated under the Guidelines because the district court attributed more methamphetamine to him than he could have reasonably foreseen. Because we hold W estcott could have reasonably foreseen that 8.845 kilograms of methamphetamine were manufactured by his co-conspirators, w e also hold his sentence to have been properly calculated.
-13- The fact of the matter is that W indrix cannot rebut the presumption of
reasonableness. The district court considered the relevant factors under 18 U.S.C.
§ 3553(a) in arriving at a 360-month sentence. That W indrix does not like the
outcome of the district court’s weighing of the § 3553(a) factors does not render
the district court’s sentence unreasonable. Because W indrix advances no
argument on appeal as to why the presumption of reasonableness should be
rebutted, we conclude his sentence is reasonable. Even without the presumption,
we are unpersuaded that reasonableness requires our reconsideration of the
sentence.
2. Westcott
W estcott contends his sentence is unreasonable because the court failed to
grant him either minor-participant status pursuant to USSG § 3B1.2 or a non-
Guideline sentence under 18 U.S.C. § 3553(a). He argues that his sentence
should be reduced because he (1) participated in the conspiracy not for financial
gain, but to fuel his own drug habit, and (2) has tw o young sons in need of his
support. He cites cases in which appellate courts, including ours, have upheld
below-G uidelines sentences in similar factual situations.
Put simply, the district court explicitly considered the relevant § 3553(a)
factors, including § 3553(a)(1) which mandates the court take into account “the
nature and circumstances of the offense and the history and characteristics of the
-14- offender” and determined that a non-Guideline sentence was not appropriate to
W estcott. W e will not second guess the district court’s decision against a non-
Guideline sentence where the presumption of reasonableness has not been
rebutted or where the sentence’s reasonableness has not been seriously
questioned. Accordingly, we conclude that W estcott’s sentence is reasonable w ith
or without the Kristl presumption.
3. M ook
M ook contends his sentence is unreasonable because the court failed to
grant him a non-Guideline sentence under 18 U.S.C. § 3553(a). He argued at
sentencing and re-sentencing that his sentence should be reduced because he is (1)
a drug addict, (2) so old that his 292-month sentence will leave him in prison
until near his 70th birthday, and (3) sick and therefore not suited to prison life.
The district court explicitly considered the relevant § 3553(a) factors, including §
3553(a)(1). W e will not quibble with the district court’s decision against a non-
Guideline sentence absent compelling reasons. Accordingly, we conclude that
M ook’s sentence is reasonable regardless of our mandate to apply a presumption
of reasonableness to G uideline sentences.
-15- III. C onclusion
For the foregoing reasons, we AFFIRM the district Court.
ENTERED FOR THE COURT
Timothy M . Tymkovich Circuit Judge
-16-