                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      November 3, 2005
                                   TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 04-7119
 v.                                               (D.C. No. 04-CR-19-W)
                                                        (E.D. Okla.)
 SCOTT ERNEST MORGAN,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Defendant-Appellant Scott Ernest Morgan appeals from the sentence

imposed upon his conviction, following a guilty plea, of conspiracy to

manufacture and distribute a mixture or substance containing a detectable amount

of methamphetamine in violation of 21 U.S.C. § 841(a)(1). 21 U.S.C. § 846. Mr.

Morgan objected to the presentence report (“PSR”) concerning the quantity of

      *
        This order and judgment is not binding precedent, except under the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.
      **
         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.
drugs used to enhance his sentence, and contended that the quantity of drugs

should have been proven beyond a reasonable doubt in accordance with Blakely v.

Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466

(2000). At sentencing, Mr. Morgan urged these objections as well as another

deemed untimely by the district court, and sought a downward departure based

upon medical conditions. Ultimately, the district court overruled the objections,

denied the motion for downward departure, and applied the Sentencing

Guidelines. Mr. Morgan was sentenced to 121 months imprisonment and 36

months of supervised release. Mr. Morgan’s guideline range was 121 to 151

months.

      On appeal, Mr. Morgan presents two claims. He claims that the district

court erred in sentencing him based upon facts not alleged in the indictment, facts

not admitted in the change of plea, and facts not found by a jury. The government

concedes that Mr. Morgan objected on constitutional grounds to his sentence

before the district court. The government does not contend that the error is

harmless, and concedes that we should remand for resentencing. Aplee. Br. at 7.

Mr. Morgan also argues that the district court erred in rejecting his untimely

argument that contraband located at the scene of the crime was not reasonably

foreseeable as jointly undertaken criminal activity. See U.S.S.G.

§ 1B1.3(a)(1)(B); United States v. Dazey, 403 F.3d 1147, 1176 (2005). Because


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we are remanding this case for resentencing, we need not address that issue.

      REMANDED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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