                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              June 8, 2005
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 03-1524
                                                         (D. Colorado)
 PAUL BENNETT,                                       (D.Ct. No. 00-CR-53-N)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, 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). The case is

therefore ordered 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          This order and judgment is not binding precedent except under the doctrines of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.
       Paul Bennett pled guilty to possession with intent to distribute five grams

or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(viii) and to possession of a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1). He was sentenced to 248 months

imprisonment. He appeals both his sentence 1 and the district court’s ruling on his

motion to suppress. 2 Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we AFFIRM.

                                I. Factual Background

       On February 3, 2000, a state judge issued a search warrant for a residence

owned by Paul Bennett at 5565 Yuba Way in the City and County of Denver,

Colorado. The warrant, based on an affidavit filed by Detective James D. Caffrey

of the Lakewood Police Department, authorized a search for evidence of

methamphetamine manufacture. The affidavit, ten pages in length and single-

spaced, recounted the investigation into Bennett’s activities in great detail.

Highlights included the following:

       On January 20, 2000, Amy Castle told an undercover agent of the Drug

Enforcement Administration (DEA) that she was a supplier of precursor

       1
        After initial briefing, Bennett moved for leave to file a supplemental brief on the
grounds his sentence was invalid under United States v. Booker, -- U.S.-- , 125 S.Ct. 738
(2005). We granted the motion.
       2
        Bennett entered a conditional plea of guilty, reserving the right to challenge on
appeal the district court’s denial of his motion to suppress. See FED. R. CRIM. P. 11(a)(2).

                                            -2-
chemicals to methamphetamine manufacturers or “cooks,” one of whom had been

manufacturing methamphetamine for thirty years. Later the same day, she was

observed transporting precursor chemicals to the residence of Chadwick New,

then nineteen years of age. Shortly thereafter, New left his residence and was

tailed to a pharmacy. Before entering the pharmacy, he was observed discarding

several bags into a trash bin. In these bags, recovered by law enforcement, were

186 empty blister packs that once contained 6,288 cold tablets of pseudoephedrine

(used in the production of methamphetamine). Based on the foregoing, Detective

Caffrey obtained a search warrant for New’s residence to search for evidence of

methamphetamine possession and manufacture.

      On January 27, 2000, Castle was arrested after she purchased a pound of

ephedrine from a chemical supplier. She informed Detective Caffrey she was

awaiting New’s return from a trip to Vermont before delivering the ephedrine to

him; she purchased precursor chemicals for New and others; she always delivered

the chemicals to New at his residence; New was involved with others in the

manufacture of methamphetamine; and she was paid in methamphetamine and

cash for her services.

      When New’s residence was searched pursuant to the search warrant, agents

discovered in his bedroom extensive evidence of methamphetamine manfacture

and sale, including precursor chemicals. Confronted with this discovery, and with


                                        -3-
a warrant issued for his arrest for methamphetamine manufacture, New agreed to

cooperate with law enforcement.

      On February 1, 2000, New informed agents he purchased precursor

chemicals for methamphetamine manufacture and delivered them to Paul Bennett.

The chemicals New provided to Bennett included those provided to New by Amy

Castle. New was paid for his services in cash or methamphetamine. According to

New, Bennett was forty to fifty years old, claimed to be a chemist by trade and

was the main “cook” in the organization. New informed Detective Caffrey that

Bennett operated a fully-equipped methamphetamine laboratory in the basement

of a home Bennett owned. New described the various components of the

laboratory in great detail. New stated Bennett’s house had security cameras

installed on the exterior to monitor people in the vicinity. Other “cooks” also

used Bennett’s methamphetamine laboratory. They compensated Bennett by

giving him a percentage of their product. New indicated he had been in Bennett’s

house and had assisted in manufacturing methamphetamine. He had also

observed Bennett manufacture methamphetamine in the basement laboratory.

New stated he delivered two to three hundred boxes of pseudoephedrine to

Bennett each week.

      On February 2, 2000, New took agents, including Detective Caffrey, to the

house containing the methamphetamine laboratory. Its address was 5565 Yuba


                                         -4-
Way in the City and County of Denver, Colorado. The front door had an iron bar

across it and security cameras scanned the entrance. There were high intensity

lights in the back yard. The next morning, New made a controlled delivery of

precursor chemicals (including 500 milliliters of hypophosphorous acid and 500

grams of iodine) to Bennett at the Yuba Way address while Agents surveilled the

delivery from outside Bennett’s residence. New was in the residence for

approximately half an hour.

      After leaving Bennett’s residence, New informed Detective Caffrey he had

delivered the precursor chemicals to Bennett, who paid New $240.00 as partial

payment. During the visit to Bennett’s house, New observed the operational

methamphetamine laboratory in the basement. He also saw a woman named Tina,

to whom he had previously delivered pseudoephedrine for use in the manufacture

of methamphetamine in the basement laboratory, removing pseudoephedrine from

blister packs. Tina and Bennett informed New they were awaiting delivery of

additional pseudoephedrine in order to begin a “cook.” Tina asked New if he

would be able to supply additional pseudoephedrine, and New responded he

would do so.

      New advised that while he was at Bennett’s residence he also observed a

taxicab driver arrive and remove bags of chemical waste resulting from the

methamphetamine manufacturing process. According to New, Bennett adopted


                                        -5-
this method of waste management to avoid detection of his illegal operation by

law enforcement. The officers who surveilled New’s controlled delivery of

precursor chemicals to Bennett in the early morning hours of February 3, 2000,

simultaneously observed this taxicab driver collect several bags from the

residence and depart.

      Based on the foregoing, together with abundant additional information

contained in the affidavit, on February 3, 2000, the state court judge issued a

search warrant for Bennett’s house at 5565 Yuba Way. Executed the same day,

the search uncovered numerous items evidencing the manufacture and sale of

methamphetamine, including 5.9 grams of actual methamphetamine, 601.8 grams

of pseudoephedrine, 1,058 grams of iodine and several weapons. Bennett was

arrested.

                            II. Procedural Background

      On September 21, 2000, Bennett entered his conditional guilty plea. The

court set sentencing for December 8, 2000. Pending sentencing, while on bond,

Bennett absconded. He was re-arrested in Arizona on February 13, 2003, and

finally sentenced on December 4, 2003.

      The Presentence Investigation Report (PIR) prepared by the U.S. Probation

Office set a base offense level of 34 based, initially, on a quantity of 472.3 grams

of actual methamphetamine (5.9 grams of actual methamphetamine seized and


                                         -6-
466.4 grams of actual methamphetamine based on the productive capability of the

precursor chemicals seized). 3 See United States Sentencing Commission,

Guidelines Manual, §2D1.1(c)(3) (2003) (base offense level of 34 applies where

quantity of actual methamphetamine is at least 150 grams but less than 500

grams). See also USSG §2D1.1, comment. (n.12) (“Where . . . 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

. . . the size or capability of any laboratory involved.”). In addition, the PIR

adjusted the base offense level upward two levels for obstruction of justice under

USSG §3C1.1. See id., comment. (n.4(e)) (adjustment applies to “escaping or

attempting to escape from custody before trial or sentencing; or wilfully failing to

appear, as ordered, for a judicial proceeding”). The guideline sentence for a

violation of 18 U.S.C. § 924(c) is the statutory minimum term of imprisonment,

five years. See 18 U.S.C. § 924(c)(1)(A)(I) and (c)(1)(D)(ii) (term of

imprisonment shall be consecutive to other terms of imprisonment imposed). See

also USSG §2K2.4 (accord). With a total offense level of 36 and a Criminal

History Category of I, the guideline range was 188 to 235 months imprisonment


      3
          The productive capabilities of the precursor chemicals were estimated in DEA
Summary Laboratory Reports. After a sentencing hearing conducted on November 14,
2003, and as a result of a misunderstanding by the DEA chemist as to the amount of
iodine seized from Bennett’s house, the PIR was amended prior to final sentencing to
reflect a productive capability of 275.1 grams.

                                           -7-
on the drug trafficking offense. Bennett objected to the PIR drug quantity

calculation under USSG §2D1.1(c) insofar as it depended on the productive

capability of the precursor chemicals seized.

      At a sentencing hearing conducted on November 14, 2003, experts testified

to the productive capability of Bennett’s methamphetamine laboratory based on

the precursor chemicals seized, in particular the iodine. At the continued

sentencing hearing on December 4, 2003, the court, relying on the Government’s

expert witness, found the productive capability of Bennett’s lab was 275.1 grams

of actual methamphetamine. Added to the 5.9 grams of actual methamphetamine

seized at Bennett’s house, this resulted in 281 grams of actual methamphetamine.

The quantity calculation again resulted in a base offense level of 34.

      The court also found Bennett obstructed justice by absconding before

sentencing, and, as a result, enhanced the base offense level an additional two

levels under USSG §3C1.1. Bennett did not contest the obstruction of justice

finding or enhancement. The court declined to downward depart for acceptance

of responsibility, see USSG §3E1.1, or for any other reason. See USSG §5K2.0;

18 U.S.C. § 3553(b) (allowing departures under specified conditions but since

excised by United States v. Booker, -- U.S. -- , 125 S.Ct. 738, 756 (2005)). With

a total offense level of 36 and a Criminal History Category of I, the court

sentenced Bennett to 188 months on the drug trafficking violation (the low end of


                                         -8-
the guideline range) and imposed a consecutive 60 months for the firearms

violation, for a total of 248 months. In rendering its sentence, the court stated:

      I find no reason to depart from the sentence called for by application of
      the guidelines in this case. Because of the guideline range of 24
      months, I am required to state a reason for imposing a sentence at a
      particular point and range. In determining each component, I
      determined the nature and circumstances of the offense and history and
      characteristics of the Defendant.

      With respect to imprisonment, I find that the term of imprisonment is
      required. I will impose the minimum term in this case, because I find
      that the minimum term is sufficient to achieve the statutory purposes of
      the sentence of incarceration, including the need for the sentence
      imposed to reflect the seriousness with respect to the law and provide
      just punishment for the offense, for deterrence, and to protect the public
      from further crimes of the Defendant.

(R. Vol. II at 17-18.)

                                  III. Discussion

      A.     The Search

      Bennett contends the search warrant issued on February 3, 2000, was not

supported by probable cause and, as a consequence, the district court should have

suppressed the fruits of the search. In particular, he contends the affidavit in

support of the search warrant contained little to bolster New’s reliability. The

district court rejected this argument. So do we.

      In upholding the reasonableness of the search, the district court stated:

      The affidavit is extraordinarily detailed, but the central question really
      is the credibility of the informant and whether in light of that question,
      there is probable cause in the affidavit.

                                          -9-
       I find that there is sufficient corroboration and sufficient information
       for . . . the judge, the state judge, to conclude that the informant was
       telling the truth when he related this information.

       The affidavit sets forth corroboration of information the informant had
       given about the operation generally. There is some cross corroboration
       of information with other individuals.          There is independent
       corroboration of a good deal of the information, and there is
       corroboration of what happened specifically on the evening in question.

(R. Vol. III at 70.)

       We review de novo the district court's determination of reasonableness

under the Fourth Amendment, but defer to its factual findings if they are not

clearly erroneous, viewing the evidence in the light most favorable to the

government. United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001). We

accord great deference to the probable cause finding of a magistrate who issues a

search warrant. Illinois v. Gates, 462 U.S. 213, 236 (1983). In doing so, we

apply a totality of the circumstances test:

       The task of the issuing magistrate is simply to make a practical,
       common-sense decision whether, given all the circumstances set forth
       in the affidavit before him, including the veracity and basis of
       knowledge of persons supplying hearsay information, there is a fair
       probability that contraband or evidence of a crime will be found in a
       particular place. And the duty of a reviewing court is simply to ensure
       that the magistrate had a substantial basis for . . . conclud[ing] that
       probable cause existed.

Id. at 238-39 (quotation marks omitted).

       “[P]robable cause is a fluid concept – turning on the assessment of

probabilities in particular factual contexts – not readily, or even usefully, reduced

                                         -10-
to a neat set of legal rules. Informants’ tips doubtless come in many shapes and

sizes from many different types of persons.” Id. at 232. Probable cause does not

denote a prima facie case of criminal activity, but only the probability of it. Id. at

235 (citing Spinelli v. United States, 393 U.S. 410, 419 (1969)). To be sure, an

“informant's statement [must be] reasonably corroborated by other matters within

the [affiant’s] knowledge[,]” id. at 242 (quotation marks omitted), but “even if we

entertain some doubt as to an informant's motives, his explicit and detailed

description of alleged wrongdoing, along with a statement that the event was

observed first-hand, entitles his tip to greater weight than might otherwise be the

case.” Id. at 234. 4

       With these principles in mind, and after a careful review of the record, we

harbor no doubt the search warrant, based on the totality of the circumstances

recited in the affidavit, soundly rests on probable cause. We agree with the

district court’s analysis. We have gone to great lengths to recount the highlights

of Detective Caffrey’s affidavit because, even un-amplified by the balance of the

affidavit, they plainly support issuance of the warrant. Amplified by the balance

of the affidavit, which we see no need to recount in detail, the case for probable


       4
         In Gates, the Court considered probable cause based on an anonymous
informant’s statement. See Gates, 462 U.S. at 225. However, we construe its
observations on the weight to be accorded an informant’s statement as generically
applicable to all informants, including one whose identity, as in this case, is revealed in an
affidavit for a search warrant.

                                            -11-
cause is clear cut and strong. New’s statements to law enforcement were

sufficiently corroborated by the context of the entire investigation and, in

particular, by the controlled transaction in which he delivered precursor chemicals

to Bennett on February 3, 2000. We therefore decline relief to Bennett in his

challenge to the district court’s denial of his motion to suppress the fruits of the

search.

       B.     The Sentence

       The statutory sentence of imprisonment for a violation of 21 U.S.C. §

841(a)(1) and (b)(1)(B)(viii) (possession with intent to distribute five grams or

more of methamphetamine) is not less than five nor more than forty years. For a

violation of 18 U.S.C. § 924(c)(1) (possession of a firearm in furtherance of a

drug trafficking crime), the statutory sentence of imprisonment is not less than

five years, mandated to run consecutively to any other term of imprisonment.

Bennett’s sentence of 288 months (24 years) imprisonment is, therefore, within

the statutorily authorized punishment. Bennett claims, however, that judicial fact-

finding of drug quantity to enhance his sentence for drug trafficking, see USSG

§2D1.1(c)(3), violates Booker and requires remand for resentencing. 5


       5
         In his Supplemental Brief, Bennett suggests Booker is also implicated by the
failure of the district court to downward depart for acceptance of responsibility. See
USSG §3E1.1. We do not agree. Booker only applies to instances where a sentence
exceeds that which is authorized by the jury’s verdict or the defendant’s admissions.
Booker, 125 S.Ct. at 756.

                                           -12-
      In Booker, the United States Supreme Court extended its ruling in Blakely

v. Washington, -- U.S.--, 124 S.Ct. 2531 (2004), to invalidate the federal

sentencing guidelines under the Sixth Amendment insofar as they were

mandatory. 6 125 S.Ct. at 745. It 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.” Id. at

756. The Court concluded the guidelines would not offend the Constitution if

advisory only. Id. at 749-50. To this end, in the remedial portion of its opinion,

the Court excised those provisions mandating their application. Id. at 756-57.

The Court indicated its decision was applicable to all cases, like this one, on

direct review. Id. at 769.

      Applying Booker, we have stated:


      6
         In Blakely, the Court applied its decision in Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.”) to invalidate, under the Sixth Amendment,
application of Washington’s sentencing guidelines. In Blakely, the sentencing court
enhanced a standard sentence under these guidelines. The facts necessary to support the
enhancement were neither admitted by the defendant nor proven to a jury beyond a
reasonable doubt. Even though the enhanced sentence did not exceed the statutory ceiling
of imprisonment for the offense, the Court invalidated it. Blakely, 124 S.Ct. at 2538. In
doing so, the Court clarified that “the statutory maximum for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Id. at 2537 (quotation marks and emphasis
omitted).

                                          -13-
      there are two distinct types of error that a court sentencing prior to
      Booker could make. First, a court could err by relying upon
      judge-found facts, other than those of prior convictions, to enhance a
      defendant's sentence mandatorily. As Booker makes clear, the Sixth
      Amendment prohibits this practice. As a matter of convenience, we will
      refer to such an error as a constitutional Booker error. Second, a
      sentencing court could err by applying the Guidelines in a mandatory
      fashion, as opposed to a discretionary fashion, even though the resulting
      sentence was calculated solely upon facts that were admitted by the
      defendant, found by the jury, or based upon the fact of a prior
      conviction. While this type of sentence does not violate the Sixth
      Amendment, such a sentence is nonetheless impermissible because the
      Court severed the portion of the Sentencing Reform Act that required
      the mandatory application of the Guidelines. We will refer to this
      second type of error as a non-constitutional Booker error.

United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005)

(quotation marks and citations omitted). Irrespective of the type of error

involved, Booker does not necessitate a remand for resentencing in all instances.

Instead, “reviewing courts [are] to apply ordinary prudential doctrines,

determining, for example, whether the issue was raised below and whether it fails

the plain-error test.” Booker, 125 S.Ct. at 769 (quotation marks omitted).

      Bennett concedes, and the Government agrees, that the alleged error was

unpreserved in the trial court and review is for plain error. We enjoy discretion to

notice plain error. See F ED . R. C RIM . P. 52(b). “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 public reputation of judicial

proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation marks


                                         -14-
omitted). “We conduct this analysis less rigidly when reviewing a potential

constitutional error.” United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir.

2005) (internal quotation marks omitted).

      The Government concedes judicial fact-finding in the quantity calculation

and also concedes the error was plain. See United States v. Clifton, 406 F.3d

1173, 1181 (10th Cir. 2005) (“Non-constitutional and constitutional Booker errors

satisfy the first two prongs of the plain-error test.”). We therefore conclude

Bennett’s claim is one of constitutional Booker error, and we limit our review to

the third and, if necessary, the fourth prong of the plain error test.

      “Satisfying the third prong of plain-error review--that the error affects

substantial rights--usually means that the error must have affected the outcome of

the district court proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (quotation

marks omitted). It is the defendant’s burden to make this showing, even in a case

of alleged constitutional error. Id. at 733. “To meet this burden, the appellant

must show a reasonable probability that, but for the error claimed, the result of

the proceeding would have been different.” Id. (quotation marks omitted).

      In a case of constitutional Booker error, there are at least two ways a
      defendant can make this showing. First, if the defendant shows a
      reasonable probability that a jury applying a reasonable doubt standard
      would not have found the same material facts that a judge found by a
      preponderance of the evidence, then the defendant successfully
      demonstrates that the error below affected his substantial rights. This
      inquiry requires the appellate court to review the evidence submitted at
      the sentencing hearing and the factual basis for any objection the

                                          -15-
      defendant may have made to the facts on which the sentence was
      predicated. Second, a defendant may show that the district court's error
      affected his substantial rights by demonstrating a reasonable probability
      that, under the specific facts of his case as analyzed under the
      sentencing factors of 18 U.S.C. § 3553(a), the district court judge would
      reasonably impose a sentence outside the Guidelines range.

Dazey, 403 F.3d at 1175 (footnotes omitted).

      Applying these principles, we review the facts related to the drug quantity

calculation. 7 We first inquire whether there is a reasonable probability that a jury,

applying a reasonable doubt standard, would not have found, as did the judge

applying a preponderance of the evidence standard, that the productive capability

of Bennett’s lab exceeded 150 grams of actual methamphetamine. Although the

judge found the productive capability was 275.1 grams of actual

methamphetamine, an amount in excess of 150 grams of actual methamphetamine

is all that is needed under the guidelines for a base offense level of 34. See

USSG §2D1.1(c)(3). Therefore, the “material fact[] that [the] judge found by a

preponderance of the evidence,” Dazey, 403 F.3d at 1175 (emphasis added), was


      7
          Bennett admitted in his plea agreement and in the plea proceeding that “[j]ust
over 6 grams of actual manufactured methamphetamine were found in the basement.” (R.
Vol. I, Docket Entry 136 at 5.) To be more exact, the DEA Summary Laboratory Report
indicated the actual methamphetamine content of the methamphetamine seized in the
basement was 5.9 grams. With Bennett’s admission, this amount is beyond Booker
challenge. See Booker, 125 S.Ct. at 756. A quantity of 5.9 grams of actual
methamphetamine, standing alone, results in a base offense level of 26. See USSG
§2D1.1(c)(7). The addition of a two-level enhancement for obstruction of justice, see
USSG §3C1.1, results in a total offense level of 28. With a Criminal History Category of
I, this, without more, would have resulted in a guideline range of 78-97 months.

                                          -16-
that the productive capability of the laboratory was at least 150 grams of actual

methamphetamine.

      In conducting our inquiry, we consider the evidence adduced at the

sentencing hearing on November 14, 2003, and objections made by Bennett at the

sentencing hearing on December 4, 2003. Our inquiry requires a rudimentary

understanding of the pseudoephedrine reduction method of manufacturing

methamphetamine employed in this case, which we have divined from the record.

First, pseudoephedrine is extracted from cold medications. It is then mixed with

iodine, a re-agent. While there are other stages to the manufacturing process, it is

important to understand this: assuming sufficient quantities of pseudoephedrine

(not contested here), the amount of iodine available to the process limits the

amount of actual methamphetamine that can be produced.

      At the sentencing hearing on November 14, forensic chemists testified for

the Government and Bennett. On behalf of the Government, Keith Chan of the

DEA testified that he was provided with samples of the iodine seized from

Bennett’s basement. Prior to his testimony, DEA Agent Todd Wheeler, who was

involved in the iodine’s seizure, testified to the protocol for handling and

disposing of chemicals seized at a methamphetamine laboratory: 8



      8
        The protocol did not apply to pseudoephedrine because it is a controlled
substance and not considered a hazardous material.

                                          -17-
      The chemicals used in the production of these controlled substances, in
      this case methamphetamine, are sampled, and the samples are sent to
      our laboratory for analysis. And the remaining quantities are then
      provided to a contract company for destruction under hazardous waste
      due to the possibility of contamination, exposure, spills, things that
      could happen to the full quantity of chemicals if they were maintained.

(R. Supp. Vol. III at 7-8.) In the case of the iodine seizure, he testified agents

seized and photographed three one-pound containers of iodine. At the time, he

estimated two containers to be full and one container to be one-third full. 9 This

information was conveyed to Chan, who converted the estimates to a total of

1,058 grams. In addition, a sample from each container was provided to Chan for

chemical analysis. The balance of each container was destroyed pursuant to

protocol.

      Chan testified that in his professional opinion the productive capability of

1,058 grams of iodine was 275.1 grams of actual methamphetamine. He

explained:

      This type of method of making amphetamine with red phosphorous and
      iodine is one of the more simplest [sic] ways of producing
      methamphetamine. It is what we call one-pot process. That is
      everything, the precursor, re-agent are dumped into a pot or reaction
      vessel, a little heat is applied, end [sic] the result is methamphetamine.
      The whole process can probably be done within two days from initial
      precursor to final product. In my experience we have had – we run
      across high school student[s] performing the same reaction.



      9
        Bennett’s counsel rigorously cross-examined Agent Wheeler on his estimates of
the volume of iodine contained in the three one-pound containers.

                                         -18-
(R. Suppl. Vol. III at 53.) He added his estimate of productive capability of the

iodine seized from Bennett’s laboratory was a conservative one. Furthermore,

unless the methamphetamine produced was adulterated, Chan testified it could

achieve a purity close to 100 percent. 10

      On Bennett’s behalf, Dr. Robert Lanz, a chemist employed by Rocky

Mountain Metallurgic Laboratories in Fort Collins, Colorado, testified that while

a skilled chemist could produce near-pure methamphetamine using

uncontaminated raw materials, as Chan had suggested, these conditions are not

always present and can result in the production of methamphetamine of reduced

purity. He was unable to state the volume of precursor chemicals that would have

been necessary to produce the 5.9 grams of actual methamphetamine seized from

Bennett’s laboratory. He indicated he would not be able to estimate, to a

reasonable degree of scientific certainty, the weight of the iodine in the containers

seized from the laboratory. Finally, he testified it is not possible to theorize to a

reasonable degree of scientific certainty, as Chan did, the productive capability of

a precursor chemical such as iodine. While Dr. Lanz suggested it might be

possible to arrive at what he described as a “theoretical yield,” based on the

volume of precursor chemicals, when pressed on cross-examination for an


      10
         Chan testified the purity of the methamphetamine seized from Bennett’s
laboratory was ninety-seven percent for one portion weighing .95 grams and ninety-four
percent for a portion weighing 5.4 grams.

                                            -19-
estimate of “reasonably expected yield,” based on the evidence in the case, he

maintained there were too many unknown variables and declined to offer an

opinion. (R., Supp. Vol. III at 71-72.) At the sentencing hearing on December 4,

2003, Bennett’s counsel built on Dr. Lanz’s testimony and argued Chan’s

methodology for calculating the productive capability of the laboratory was

simply too imprecise in light of the multiple variables involved – in particular the

possibility of contaminated precursor chemicals and adulteration of the product.

      Bennett certainly challenged the estimate Agent Wheeler provided to Chan

of the volume of each of the one-pound containers of iodine seized from

Bennett’s laboratory, the methodology Chan employed in calculating productive

capability of the iodine and the certainty of the variables Chan employed in his

calculations insofar as contamination and adulteration were concerned. But, these

challenges were not so potent, individually or collectively, to merit a conclusion

on our part that there is a reasonable probability a jury, applying a reasonable

doubt standard, would conclude the productive capability of the laboratory was

less than 150 grams. 11

      Nor has Bennett met his burden to demonstrate a reasonable probability


      11
         It would require a diminution in excess of forty-five percent off of the
Government’s projected productive capability of 275.1 grams of actual methamphetamine
to reduce the productive capability of Bennett’s laboratory beneath the 150 grams of
actual methamphetamine necessary to engage a base offense level of 34. The sum of the
evidence does not merit such a diminution.

                                         -20-
that, under the specific facts of his case as analyzed under the sentencing factors

of 18 U.S.C. § 3553(a), 12 the district court would have reasonably imposed a


      12
             Factors to be considered in imposing sentence. The court
             shall impose a sentence sufficient, but not greater than
             necessary, to comply with the purposes set forth in paragraph
             (2) of this subsection. The court, in determining the particular
             sentence to be imposed, shall consider –

                    (1)    the nature and circumstances of the offense and the
                           history and characteristics of the defendant;

                    (2)    the need for the sentence imposed –
                           (A) to reflect the seriousness of the offense, to
                                  promote respect for the law, and to provide just
                                  punishment for the offense;
                           (B) to afford adequate deterrence to criminal
                                  conduct;
                           (C) to protect the public from further crimes of the
                                  defendant; and
                           (D) to provide the defendant with needed educational or
                                  vocational training, medical care, or other correctional
                                  treatment in the most effective manner;

                    (3)    the kinds of sentences available;

                    (4)    the kinds of sentence and the sentencing range established for
                           (A) the applicable category of offense committed by the
                                  applicable category of defendant as set forth in the
                                  guidelines . . . .

                    (5)    any pertinent policy statement –
                           (A) issued by the Sentencing Commission . . . .

                    (6)    the need to avoid unwarranted sentence disparities among
                           defendants with similar records who have been found guilty
                           of similar conduct; and


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sentence outside the guideline range under a post-Booker advisory regime. The

court’s comments in declaring sentence clearly evidence it determined Bennett’s

sentence in at least partial reliance on § 3553(a)’s standards. After Booker’s

excision of the mandatory application of the guidelines, see 125 S.Ct. at 756-57,

these standards hold even greater sway. Even so, we can identify nothing in the

record or in any argument by Bennett to suggest the court would have sentenced

differently in the absence of the provision mandating application of the

guidelines. 13 In fact, the court specifically stated the 188 month term of

imprisonment was appropriate, and it declined to depart downward for any reason.

We acknowledge the authority to downward depart, pre-Booker, was limited under

§ 3553(b), but still, there is absolutely no indication in the record the court was

open to any departure at all, whether legitimate grounds could be advanced or not.

       Therefore, we conclude judicial fact-finding of the productive capability of

the laboratory did not affect Bennett’s substantial rights under the third prong of

the plain error test. This being so, we need not consider whether he satisfies the

fourth prong of the test. We determine Bennett has failed to satisfy the plain


                       (7)   the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
       13
          Bennett does not claim Booker error based on the district court’s enhancement
for obstruction of justice. See USSG §3C1.1. Bennett did not challenge the enhancement
in either his sentencing or his initial appellate briefs. This is not surprising, inasmuch as
the facts of Bennett’s flight and non-appearance for sentencing were patent and without
valid excuse.

                                            -22-
error standard.

                               IV. Conclusion

      Accordingly, we AFFIRM the judgment of the district court.


                                    Entered by the Court:

                                    Terrence L. O’Brien
                                    United States Circuit Judge




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