                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 21 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-3167
                                                    (D.C. No. 98-CR-40068)
    BOBBY LEE BRIDGES,                                     (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , PORFILIO , and EBEL , Circuit Judges.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant-appellant Bobby Lee Bridges pled guilty to three counts of

a four-count indictment charging him with conspiracy to manufacture



*
      This order and judgment is not binding precedent, except under the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.
methamphetamine in violation of 21 U.S.C. § 846, manufacture of

methamphetamine in violation of 21 U.S.C. § 841, and creating a substantial risk

of harm to human life while manufacturing methamphetamine in violation of

21 U.S.C. § 858. At sentencing, the district court used count three, creating

a substantial risk of harm to human life while manufacturing methamphetamine,

as the most serious count for purposes of grouping pursuant to U.S.S.G. § 3D1.2,

and applied a three-level increase pursuant to U.S.S.G. § 2D1.10.   1
                                                                        The court then

applied a three-level reduction for acceptance of responsibility and departed

downward pursuant to the government’s U.S.S.G. § 5K1.1 motion stating that

Bridges had rendered substantial assistance. The court sentenced Bridges to

175 months’ imprisonment on counts one and two and 120 months’ imprisonment

on count three to be served concurrently. Bridges challenges his sentence

on appeal.

      Bridges states his appellate issues as: (1) the sentencing court erred in

assessing a three-level enhancement pursuant to U.S.S.G. § 2D1.10 over his

objections without requiring the government to present evidence supporting the


1
        The grouping provisions in U.S.S.G. § 3D1.2 were designed to help
calculate a single offense level that most accurately reflects the combination of
all the counts for which a defendant is convicted.  See U.S.S.G. Ch.3, Pt. D
(intro. comment). United States Sentencing Guideline § 3D1.2 sets forth the
general rule that “[a]ll counts involving substantially the same harm shall be
grouped together.” The guideline then sets forth four categories of offenses that
involve “substantially the same harm.”      Id.

                                           -2-
enhancement; and (2) the sentencing court erred in using count three, endangering

human life while illegally manufacturing a controlled substance, as the most

serious count for grouping pursuant to U.S.S.G. § 3D1.2.      2



       “A district court’s legal interpretation of the sentencing guidelines is

reviewed de novo, while its factual findings are reviewed for clear error.”       United

States v. Keifer , 198 F.3d 798, 801 (10th Cir. 1999). We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

       First, Bridges asserts that, in light of his objection to the presentence report

and at sentencing, the government was required to “persuad[e] the district court of

the propriety” of increasing his base offense level by three pursuant to U.S.S.G.

§ 2D1.10. Appellant’s Br. at 9. United States Sentencing Guideline § 2D1.10

provides that a defendant convicted of “endangering human life while illegally

manufacturing a controlled substance” is to receive a base offense level of the

greater of “(1) 3 plus the offense level from the Drug Quantity Table in § 2D12.1;



2
       Bridges also claimed the sentencing court abused its discretion in
determining the amount of downward departure it granted him under U.S.S.G.
§ 5K1.1. In their respective memorandum briefs filed in response to this court’s
June 16, 1999 order, the parties agreed that this court does not have jurisdiction
to consider this issue. An appellate court does not have jurisdiction to review
a district court’s discretionary refusal to depart downward from the sentencing
guidelines. See United States v. Bromberg , 933 F.2d 895, 896 (10th Cir. 1991).
This “compels the conclusion that we also lack jurisdiction where the defendant
complains that the district court’s grant of a downward departure is too small.”
Id.

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or (2) 20.” Bridges states that the guideline is not applicable because the offense

did not result in a fire or other event which endangered human life.

       Bridges’ argument appears to assert that the government had the burden to

prove at sentencing the facts underlying his conviction. In this attempt to forge

a legal challenge into a factual dispute, Bridges misconstrues the law. First, as

the sentencing court noted, § 2D1.10 does not require actual harm to human life,

but only that human life be endangered. Second, a “defendant is . . . bound at

sentencing by factual allegations that establish an element of the crime which he

has admitted on pleading guilty.”   United States v. Cazares , 121 F.3d 1241, 1247

(9th Cir. 1997); see also McCarthy v. United States   , 394 U.S. 459, 466 (1969)

(holding that “a guilty plea is an admission of all the elements of a formal

criminal charge”).   We acknowledge that, pursuant to this court’s precedent,

“the government has the burden of proving sentence enhancements and

increases.”   Keifer , 198 F.3d at 800. Bridges’ guilty plea, however, “[was] the

equivalent of admitting all material facts alleged in the charge” of endangering

human life while illegally manufacturing methamphetamine.      United States v.

Kelsey , 15 F.3d 152, 153 (10th Cir. 1994). Accordingly, the government was not

required to produce further evidence proving the conduct underlying the charge

for purposes of increasing his base offense level under U.S.S.G. § 2D1.10.




                                          -4-
       Next, Bridges contends that, because “only the ingredients and the

apparatus necessary to potentially manufacture a controlled substance were

discovered” at the scene, the endangerment to human life did not occur      while he

was manufacturing a controlled substance. Appellant’s Br. at 10. Again, he

attempts to challenge the factual basis of his guilty plea. This argument is equally

unavailing for the same reasons stated above.

       Offering a somewhat different theory in support of the same argument,

Bridges contends that, because “the only controlled substance found at the situs of

the lab at issue when the agents proceeded to the lab site was methamphetamine

residue in a ziplock baggie,” the amount of drug seized would not have produced

an offense level “above 20 as required to trigger U.S.S.G. § 2D1.10 as the lead

count.” Id. at 11-12. In a rather convoluted manner, Bridges asserts that “the

offense level referred to in U.S.S.G. § 2D1.10 refers to the drugs seized   while

defendant is manufacturing a controlled substance and the controlled substances

found while defendant is manufacturing the controlled substance is then factored

under § 2D1.1 for purposes of triggering § 2D1.10.”       Id.

       Our reading of the transcript of Bridges’ sentencing hearing does not

indicate that Bridges lodged any objection resembling this argument with the

sentencing court. Therefore, insofar as Bridges’ argument is intended to

challenge the quantity of drugs attributed to him for sentencing purposes,


                                            -5-
“a defendant [must] raise alleged factual inaccuracies in a presentence report

before the district court in order to preserve the issue on appeal.”   United States v.

Saucedo , 950 F.2d 1508, 1518 (10th Cir. 1991),       overruled on other grounds by

Stinson v. United States , 508 U.S. 36 (1993); see also United States v. Deninno       ,

29 F.3d 572, 580 (10th Cir. 1994) (holding that “[f]ailure to object to a fact in

a presentence report, or failure to object at the hearing, acts as an admission of

fact” and precludes appellate consideration of an issue based on the admitted

fact). 3 Moreover, we note that Bridges’ plea included an agreement that he would

not oppose the government’s recommendation that he be sentenced for an amount

in excess of 100 grams of methamphetamine–a quantity which would trigger

the mandatory minimum sentencing provisions of 21 U.S.C. § 841(b)(1)(A).           4



See R. Vol. IV, at 5.

       Bridges pled guilty to three of the charges in the indictment alleging he

conspired to and did manufacture methamphetamine and that, in so doing, he

3
        Although we have reviewed sentencing errors that were not raised in the
district court under a plain error standard,    see United States v. Orozco-Rodriguez ,
60 F.3d 705, 707 (10th Cir. 1995), plain error review is not appropriate when the
alleged error involves the resolution of factual disputes.      See Saucedo , 950 F.2d
at 1518-19. Accordingly, because Bridges failed to raise this fact-dependent issue
in the court below, he has waived it on appeal, and plain error review does not
apply. See id. at 1518.
4
       Section 841(b)(1)(A)(viii) provides that any person who is convicted of an
offense involving 50 grams or more of methamphetamine, or a mixture containing
the precursor chemicals of methamphetamine, “shall be sentenced to a term of
imprisonment which may not be less than 10 years or more than life.”

                                             -6-
endangered the lives of others. He does not challenge the voluntary, knowing,

and intelligent nature of his guilty plea.   See Fed. R. Crim. P. 11. Thus, his plea

is an admission that he is guilty of the substantive crimes with which he was

charged. By pleading guilty, Bridges relinquished his right to contest the

elements or material facts of the crimes at sentencing.      See McCarthy , 394 U.S.

at 466; Kelsey , 15 F.3d at 153. Moreover, Bridges pled guilty to the charge that

he manufactured methamphetamine in violation of 21 U.S.C. § 841(a)(1).

Even though the amount of methamphetamine is not an element of this crime,

see United States v. Silvers , 84 F.3d 1317, 1320 (10th Cir. 1996), it is clear, and

Bridges does not refute, that in his plea agreement he stipulated to the amount of

methamphetamine attributable to him for sentencing purposes, a fact he did not

object to in the presentence report or at sentencing.

       Thus, based on Bridges’ guilty plea, he was properly sentenced, and his

sentence is AFFIRMED.



                                                          Entered for the Court


                                                          John C. Porfilio
                                                          Circuit Judge




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