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

                                                                            FEB 13 2001
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                        PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 99-3321
 v.
                                                  (D.C. No. 99-CR-20002)
                                                         (Kansas)
 DANIEL MOTT,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO and ANDERSON , Circuit Judges, and          MILLS,   **
                                                                        District
Judge.


      Daniel Patrick Mott pleaded guilty to possession with intent to distribute

more than 100 grams of methamphetamine and attempt to manufacture more than

ten grams of methamphetamine within 1000 feet of a public school and was

sentenced to concurrent 168-month prison terms. He challenges the inclusion in

his sentence of drug transactions outside the scope of the indictment and alleges


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This Court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
double counting in the calculation of the drug quantity attributable to him.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

                                          I

      On May 19, 1997, a Kansas City police officer stopped defendant’s vehicle

for traveling sixty-two miles per hour in a thirty mile per hour zone. After

learning that defendant had a suspended driver’s license and an outstanding arrest

warrant, the officer arrested him. An inventory search of the vehicle uncovered

$9890 in cash, a set of scales, and two packages of a powder containing

methamphetamine. In September 1998, the Kansas City police executed a search

warrant for illegal drugs at defendant’s residence and discovered paraphernalia

related to the manufacture of methamphetamine along with a substance that

contained methamphetamine. 1 Defendant’s home was located approximately 880

feet from an elementary school.

      Following the search of his residence, defendant was arrested and charged

in a five-count indictment in the United States District Court for the District of

Kansas. He pleaded guilty to Counts 1 and 3, which alleged, respectively,

knowing and intentional possession with intent to distribute more than 100 grams


      1
        Items seized at defendant’s home included plastic bags, scales, gas
masks, plastic tubing, containers of denatured alcohol, glassware, red
phosphorous, and more than 2500 tablets of over-the-counter medicine containing
pseudoephedrine, all of which, according to the government, are used in the
clandestine manufacture of methamphetamine.

                                         -2-
of a mixture or substance containing a detectable amount of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1), and knowing and intentional attempt to

manufacture more than ten grams of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1) within 1000 feet of a public elementary school, in violation of 21

U.S.C. §§ 846 and 860. 2

      The presentence investigation report (“PSR”) referenced a ledger kept by

Angel Hernandez, who was arrested on separate drug charges and who agreed to

cooperate with the government. The ledger indicated that defendant paid $9400

on May 21, 1998, paid another $9000 on June 5, 1998, and owed $26,250 as of

June 5, 1998 for methamphetamine fronted by Hernandez.

      Agent William Barajas, a drug investigator with the Kansas City, Kansas

Police Department who worked for four years with the DEA Task Force, testified

at sentencing regarding the meaning of Hernandez’s ledger notations. On

examination by the court, Barajas admitted that his interpretation of the figures in



      2
        Counts 2, 4, and 5, on which defendant did not plead guilty, alleged the
following: knowing and intentional possession with intent to distribute more than
twenty grams of a mixture or substance containing a detectable amount of
methamphetamine within 1000 feet of a public elementary school in violation of
21 U.S.C. §§ 841(a)(1) and 860; knowing and intentional possession of
pseudoephedrine, a List I chemical as defined in 21 U.S.C. § 802, with the intent
to manufacture methamphetamine in violation of 21 U.S.C. § 841(d); and
maintaining a residence for the purpose of manufacturing and distributing
methamphetamine within 1000 feet of an elementary school in violation of 21
U.S.C. §§ 856(a)(1) and 860.

                                        -3-
the ledger was not supported by specific knowledge of Hernandez’s

recordkeeping system, but only by his experience with drug traffickers’ use of

ledgers and with Hernandez’s statements regarding “how he dealt.” (III R. at 46,

65.) Barajas also testified that methamphetamine is sold in the Kansas City area

for approximately $10,000 per pound. According to Barajas, there was no known

connection between defendant and Hernandez in May 1997, when $9890 in

currency was discovered in defendant’s vehicle.

      Although defendant objected that he was “blindsided” by the use of the

ledger in the PSR, the sentencing court accepted the government’s assertion that

it had orally advised defendant’s counsel in the early stages of the prosecution of

the anticipated use of discovery items from the Hernandez case. (I R. Doc. 35 at

4.)

      The PSR added the $9400 payment and $26,250 balance in Hernandez’s

ledger to the $9890 found in defendant’s vehicle and converted the resulting

$45,540 figure to an amount of methamphetamine—4.554 pounds at $10,000 per

pound—to calculate the additional drug quantity attributable to defendant’s

uncharged offenses. 3 Finding that the June 5 payment of $9000 could have been

included in the PSR, the district court nonetheless accepted the PSR’s more


      3
        That amount was added to the 332.8 grams of methamphetamine seized
from defendant’s car and the 63.7 grams of methamphetamine that the
pseudoephedrine tablets could have yielded.

                                        -4-
“favorable” construction. (III R. at 71.) Finally, the court noted that the $9890

found in defendant’s car in May 1997 was not returned to him and could not have

been used in his later transactions with Hernandez. The court determined

defendant’s base offense level to be 35 pursuant to U.S.S.G. §§ 2D1.1(c)(3) and

2D1.2(a)(2).

      Following a three-level downward adjustment for acceptance of

responsibility under U.S.S.G. § 3E1.1 and a two-level downward departure for

defendant’s cooperation, the court arrived at a total offense level of 30, a

criminal history category of VI and a custody range of 168–210 months.

Defendant was sentenced to two concurrent prison terms of 168 months each. On

appeal, he challenges the inclusion of $45,540 of methamphetamine in the court’s

determination of his relevant conduct for sentencing purposes.

                                          II

      This Court reviews the district court’s factual findings for clear error and

its application of the sentencing guidelines de novo. United States v. Morales,

108 F.3d 1213, 1225 (10th Cir. 1997). Factual findings underlying the

determination of a defendant’s base offense level under the sentencing guidelines

are reviewed for clear error. United States v. Roederer, 11 F.3d 973, 977 (10th

Cir. 1993). The sentencing court’s determination is clearly erroneous only if it is




                                         -5-
not plausible or permissible in light of the entire record. Morales, 108 F.3d at

1225.

                                           A

        Claiming that he had no notice prior to his guilty plea of the existence of

inculpatory evidence uncovered in the Hernandez investigation, defendant

challenges the district court’s consideration of uncharged methamphetamine deals

as relevant conduct in the determination of his offense level and argues that the

use of Hernandez’s ledger to calculate his base offense level—even if permissible

under the Sentencing Guidelines—violated his Fifth Amendment right to due

process. Although he concedes that the Sentencing Guidelines permit

consideration of “all acts” committed during and in preparation of an offense,

defendant characterizes the transactions recorded in Hernandez’s ledger as the

“reasonably foreseeable acts” of another, which he asserts are properly

considered only when conspiracy charges have been brought. U.S.S.G.

§ 1B1.3(a)(1)(A), (B).

        In order for a guilty plea to be constitutionally valid, it must have been

made knowingly and voluntarily. Parke v. Raley, 506 U.S. 20, 28 (1992); United

States v. Gigley, 213 F.3d 509, 516 (10th Cir. 2000). In his brief, defendant

asserts that his decision to plead guilty was not knowing and voluntary because it

was based on an anticipated offense level exclusive of the quantity of


                                          -6-
methamphetamine attributable to his dealings with Hernandez. Unfortunately for

defendant, his claim that he was not notified that the transactions with Hernandez

could be included as relevant conduct is belied by defendant’s own statements

and those of his counsel prior to sentencing. Defendant was instructed by the

district court at the time of his guilty plea that his sentence would not be known

until the PSR had been completed. Also at the time of his guilty plea, defendant

indicated that he understood there is “virtually no limitation on the information

that the Court can take into account” concerning his background, character,

criminal record, employment history, and the offense in question. (II R. at 25.)

At sentencing, defendant’s counsel conceded not only that he was advised in the

initial stages of the prosecution that the investigation of Hernandez had turned up

evidence against defendant, but also that all of the discovery materials in the

Hernandez case had been provided to him. As a result, the district court did not

clearly err when it concluded that any lack of notice is attributable to counsel’s

failure to review the discovery materials, which he admits the government made

available in a timely manner. 4




      4
         We are unsympathetic to defense counsel’s response at sentencing that he
was “provided with a stack of discovery that was about three inches thick.” (III
R. at 41.) If counsel’s representation is accurate, these materials were not so
voluminous that he can legitimately claim to have been surprised by the
introduction of the ledger.

                                         -7-
      Finally, defendant misapprehends the nature of the relevant conduct

introduced at sentencing. The ledger was introduced not as evidence of

Hernandez’s actions in “some type of conspiracy . . . arrangement,” (III R. at 39),

but as evidence of the defendant’s own drug transactions, which may be included

as relevant conduct under U.S.S.G. § 1B1.3(a)(1)(A). See United States v.

Washington, 11 F.3d 1510, 1516 (10th Cir. 1993) (“Drug quantities associated

with illegal conduct for which a defendant was not convicted are to be accounted

for in sentencing, if they are part of the same conduct for which the defendant

was convicted.”). It was not clear error for the district court to conclude

defendant entered his guilty plea with sufficient notice that his transactions with

Hernandez could be taken into account in determining his offense level under the

Sentencing Guidelines.




                                         -8-
                                          B

      At sentencing, the government bears the burden of establishing by a

preponderance of the evidence the quantity of drugs for which a defendant is

responsible. United States v. Green, 175 F.3d 822, 836-37 (10th Cir. 1999);

United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994). We will uphold the

district court’s calculation of drug quantity unless that calculation is clearly

erroneous. Green, 175 F.3d at 837.

      Defendant claims the additional drug quantity—4.5 pounds of

methamphetamine—attributable to his uncharged offenses was not proven by a

preponderance of the evidence. He urges that Agent Barajas’s testimony was

“based solely upon his interpretation of the Hernandez notebook” rather than on

personal knowledge of the ledger’s meaning. (Appellant’s Br. at 18.)

      The Sentencing Guidelines provide that a court may consider relevant

information without regard to its admissibility under the rules of evidence so

long as the information has “sufficient indicia of reliability to support its

probable accuracy.” U.S.S.G. § 6A1.3; see also United States v. Fennell, 65 F.3d

812, 813 (10th Cir. 1995) (stating that reliable hearsay may be used in the

determination of a sentence). “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


                                          -9-
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) (internal citations and quotations omitted); see also United States v.

McIntyre, 997 F.2d 687, 709 (10th Cir. 1993). Thus, if the ledger and Barajas’s

testimony possess sufficient indicia of reliability, the district court properly based

its estimate of relevant drug quantity on those sources.

      Defendant suggests Barajas’s testimony was based only upon his

experience as a police officer and his “interpretation” of the ledger, (Appellant’s

Br. at 18), not upon a discussion of the ledger’s meaning with Hernandez.

Although Barajas admitted at the sentencing hearing that he did not talk with

Hernandez “about this particular transaction” or “about his ledger system in

general,” he testified that he did interview Hernandez regarding “how he dealt.”

(III R. at 65-66.) Moreover, Barajas testified he was a co-case agent in the

investigation that resulted in the charges against Hernandez and was familiar with

the set of individuals in the Kansas City area, including defendant, to whom

Hernandez had supplied methamphetamine.

      Credibility determinations are to be made by the district court, and this

Court will not decide among competing interpretations of testimony. See

McIntyre, 997 F.2d at 709; see also United States v. Deninno, 29 F.3d 572, 578

(10th Cir. 1994) (holding that this Court defers to the district court when


                                         -10-
reviewing the credibility of witnesses on whose testimony it relies in making

factual findings regarding drug quantity). Given that the district court found

Barajas to be a credible witness, his uncontradicted testimony bears the minimum

indicia of reliability required under the Sentencing Guidelines. It was not error

for the district court to conclude that the government had established, by a

preponderance of the evidence, defendant’s responsibility for the quantity of

methamphetamine to which Barajas testified.

      Impermissible double counting occurs when the same conduct is used to

support separate increases in a defendant’s sentence. United States v. Flinn, 18

F.3d 826, 829 (10th Cir. 1994). Defendant argues that the inclusion in his

offense level calculation of the dollar amounts listed in the ledger and found in

his car constituted double or triple counting prohibited by the Sentencing

Guidelines. The basis of defendant’s double counting claim is his allegation that

the government failed to prove by a preponderance of the evidence that the $9890

in currency found in his car in May 1997, the $9400 amount dated May 21, 1998

on Hernandez’s ledger, 5 and the $26,250 debt dated June 5, 1998 represented



      5
         It is admittedly unclear from the ledger entry whether the May 21, 1998
ledger entry indicates that $9400 was paid on that date, as the district court found,
or owing as of that date. Less ambiguous is the notation indicating that defendant
paid $9000 to Hernandez on June 5, 1998. Because the district court’s conclusion
that the May 21 entry represented a payment of $9400 was not clearly erroneous,
we will not disturb that factual determination.

                                        -11-
separate drug quantities. Put another way, the $26,250 figure in the ledger could

have incorporated the $9400 figure as well as the $9890 in cash seized from

defendant a year earlier. He claims the sentencing court impermissibly totaled

those dollar amounts to arrive at a higher offense level, engaging in double or

even triple counting.

      Based on Barajas’s uncontradicted testimony that defendant and Hernandez

did not transact business in May 1997, and in the absence of any evidence to the

contrary, the district court’s conclusion that the $9890 seized from defendant in

that month was attributable to a separate transaction was not clearly erroneous.

      The same is true of the determination of drug quantity attributable to the

transactions recorded in Hernandez’s ledger. Claiming the PSR erroneously

added the $9400 figure to the $26,250 balance as of June 5, 1998 in its

calculation of the drug quantity attributable to his offenses, defendant argues that

the $9400 denotes a portion of his total debt rather than a payment. At

sentencing, the district court observed:

      Actually, if you take the ledger at face value, I think that Mr. Mott is
      being charged with a lesser quantity of drugs than would fairly
      appear from the face of [the ledger].
            ....
            Since the presentence investigation only uses the figure of
      $45,540, . . . there’s exactly a $9,000 figure that is not being charged
      against the defendant.




                                     -12-
(III R. at 69-70.) The court concluded that “defendant has received favorable,

more favorable construction of [the ledger] than I would have given him and that

there’s not error in the formulation under the presentence investigation report.”

(Id. at 71.) Because the $9000 payment was not included in the total drug

quantity, even if the $9400 and $26,250 figures overlapped the result was an

error of only $400. At $10,000 per pound, $400 could have accounted for only

slightly more than 0.018 kilogram of the 2.44 kilograms for which the court

found defendant responsible. Without it, defendant would have been sentenced

at the same base offense level pursuant to U.S.S.G. § 2D1.1(c)(3) (setting a base

offense level of 34 for offenses involving “[a]t least 1.5 KG but less than 5 KG

of Methamphetamine”), so that any alleged error was harmless. See Fed. R.

Crim. P. 52(a) (“Any error . . . which does not affect substantial rights shall be

disregarded.”). Defendant has not demonstrated error requiring reversal of his

sentence.

                                         III

      The judgment of the district court is AFFIRMED.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge

                                        -13-
