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

                                                                         MAR 30 1999
                    UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk



UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 98-8057
v.                                                  (Dist. of Wyoming)
                                                (D.C. No. 98-CR-012-02-D)
FELIX REYES,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This court,

therefore, honors the parties’ requests and orders the case submitted without oral

argument.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
      Felix Reyes was charged in two counts of a five-count indictment with

conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B), and 846 and one count of distributing

methamphetamine in violation of §§ 841(a)(1) and 841(b)(1)(B). Reyes

ultimately pleaded guilty to the conspiracy count and was sentenced to a 78-

month term of imprisonment. Reyes appeals, raising the following two claims of

error: (1) the district court violated the Ex Post Facto Clause when it sentenced

Reyes pursuant to the United States Sentencing Commission Guidelines Manual

(“sentencing guidelines”) which became effective November 1, 1997, where the

majority of the conspiracy transpired before the effective date; and (2) the United

States obtained Reyes’ plea through the threatened use of the testimony of a

coconspirator who had been offered sentencing consideration by the government

in exchange for testimony in violation of 18 U.S.C. § 201(c)(2). This court

exercises jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742 and

affirms.

      The conspiracy count of the indictment to which Reyes pleaded guilty

charged that from approximately April of 1997 through November 24, 1997,

Reyes involved himself in a conspiracy to distribute methamphetamine in

Wyoming. Reyes engaged in an on again-off again relationship with Darwin

Haselhuhn, pursuant to which Reyes would obtain quantities of methamphetamine


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from his source or sources and thereafter deliver the methamphetamine to

Haselhuhn for redistribution. Although the quantities involved were relatively

small during the early part of the conspiracy, around August of 1997 the

deliveries became more frequent and the quantities more substantial. During

November of 1997, Reyes delivered a total of four and one-half ounces to

Haselhuhn. Using this total, Reyes asserts that only approximately 10% of the

conspiracy transpired after November 1, 1997. The conspiracy essentially expired

on November 24 th when Haselhuhn was arrested.

      Reyes contends that the district court erred in sentencing him pursuant to

the version of the sentencing guidelines effective November 1, 1997, because

only 10% of the conspiracy transpired after that date. This court reviews a

district court’s legal interpretation of the sentencing guidelines de novo. United

States v. Hargus, 128 F.3d 1358, 1364 (10 th Cir. 1997), cert. denied, 118 S. Ct.

1526 (1998). We apply that same standard of review to a district court’s

interpretation of the Ex Post Facto Clause. United States v. Hampshire, 95 F.3d

999, 1005 (10 th Cir. 1996).

      Reyes’ claim of error is clearly foreclosed by this court’s decision in United

States v. Stanberry, 963 F.2d 1323, 1327 (10 th Cir. 1992). In Stanberry, this court

rejected the exact argument advanced by Reyes, holding as follows: “When a

conspiracy begins during a period where the application of certain Guidelines


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would be controlling and extends into a period when another Guideline

application would be appropriate, there is no violation of the ex post facto clause

in applying the Guidelines in effect at the time of the last act of the conspiracy.”

Id. Because Reyes admits that approximately 10% of the conspiracy transpired

after the effective date of the November 1, 1997, sentencing guidelines, the

application of those guidelines to his case comports with the requirements of the

Ex Post Facto Clause. 1

      Relying on this court’s opinion in United States v. Singleton, 144 F.3d 1343

(10 th Cir. 1998), Reyes asserts that the United States violated 18 U.S.C. §

201(c)(2) when it induced his guilty plea through the threatened use of the

testimony of Haselhuhn, where such testimony was obtained through an offer of

sentencing leniency. The en banc court recently overruled the panel decision in

Singleton, holding that § 210(c)(2) does not apply to a prosecutor’s offering of

otherwise lawful incentives to a witness in consideration of that witness’

testimony. See United States v. Singleton, 165 F.3d 1297 (10 th Cir. 1999) (en

banc). Reyes’ claim of error is foreclosed by this en banc decision.


      1
       Reyes argues that even if such application is not mandated by the Ex Post
Facto Clause, the district court had the discretion to apply the sentencing
guidelines in effect during the period in which most of the conspiracy transpired.
This court has held, however, that absent a constitutional impediment, the district
court “shall” apply the sentencing guidelines in effect at the time of sentencing.
See United States v. Brunson , 907 F.2d 117, 120 (10 th Cir. 1990) (citing 18 U.S.C.
§§ 3553(a)(4) & (a)(5)).

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     For those reasons set out above, the sentence imposed by the United States

District Court for the District of Wyoming is hereby AFFIRMED.

                                    ENTERED FOR THE COURT



                                    Michael R. Murphy
                                    Circuit Judge




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