                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 6 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 97-3228
                                                    (D.C. No. 93-CR-10020)
    CLAYTON ALBERS,                                        (D. Kan.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before PORFILIO, BARRETT, and HENRY, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      Defendant Clayton Albers returns to this court on appeal of his

resentencing following our remand in United States v. Albers, 93 F.3d 1469 (10th

Cir. 1996). The background facts of this case are fully set forth in Albers, and,

we will repeat here only those facts necessary to our analysis. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Defendant was originally indicted along with seven coconspirators, who all

entered guilty pleas prior to trial. Defendant proceeded to trial where he was

convicted by a jury for conspiracy to manufacture methamphetamine with intent

to distribute in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, possession

or distribution of ephedrine while knowing or having reasonable cause to believe

the listed chemical would be used to manufacture methamphetamine in violation

of 21 U.S.C. § 841(d)(2) and 18 U.S.C. § 2, and manufacture of

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1)

and 18 U.S.C. § 2. Defendant was sentenced to life imprisonment.

      On appeal, this court affirmed defendant’s convictions, but concluded that

the sentencing court’s four-level enhancement pursuant to U.S.S.G. § 3B1.1 for

his role as a leader or organizer was error requiring remand for resentencing. See

Albers, 93 F.3d at 1489. On remand, the district court held a de novo

resentencing hearing resulting in defendant’s resentencing without enhancement

for his role in the offenses of conviction. At resentencing, the court determined


                                         -2-
that defendant’s base offense level was forty predicated on a finding that thirty-

six kilograms of d-methamphetamine were attributable to him. The court then

resentenced defendant to 360 months on counts one and three, and ten years on

count two to run concurrently. Defendant appeals the resentencing, asserting that

the government did not meet its burden of proof as to the quantity and type of

methamphetamine used to determine his sentence.

      “[D]rug quantity determinations by a sentencing court are reviewable for

clear error.” United States v. Ruiz-Castro, 92 F.3d 1519, 1534 (10th Cir. 1996).

We afford deference to the sentencing court’s application of the guidelines to the

facts. See id. The government has the burden of proving the quantity of drugs

for sentencing by a preponderance of the evidence. See id.

      This is a “no dope” case in which the government did not seize or test any

of the methamphetamine underlying defendant’s conviction. When a determinate

quantity of drugs is not actually seized, the court may rely on an estimate of drug

quantity to establish a base offense level, as long as the information relied on in

making an estimate is factually supported and has sufficient indicia of reliability.

See id. The district court’s estimate of at least thirty-six kilograms of

methamphetamine attributable to defendant for sentencing purposes was based on

the testimony of several of defendant’s coconspirators at trial and the testimony

of Craig Stansbury, a DEA agent, at defendant’s resentencing hearing. Agent


                                          -3-
Stansbury testified that he had interviewed several of defendant’s coconspirators

including Patrick Cambron, Jack Francis, and James Randa. Agent Stansbury had

also been present during defendant’s trial and heard the testimony of these

coconspirators.

      From this testimony, it was apparent that Mr. Cambron and defendant were

responsible for obtaining a large amount of ephedrine, the precursor chemical

necessary for the methamphetamine manufacturing operation in California. Mr.

Francis and Mr. Randa operated the lab in California and were the actual

manufacturers of the methamphetamine. Defendant, through his fertilizer

business, ordered one hundred kilograms of l-ephedrine which arrived in four

twenty-five-kilogram drums. 1 Mr. Cambron testified that when they took delivery

of the ephedrine, he and defendant repacked it in eight separate boxes and sent it

on to coconspirator Mike Marino in California. Mr. Cambron testified that each

drum of ephedrine would yield approximately forty pounds of methamphetamine,

for a total of 160 pounds or 73 kilograms. Mr. Cambron told Agent Stansbury



1
        Defendant owned and operated a fertilizer business in Wichita called
AgriData. It appears that defendant and Mr. Cambron used the nature of this
business as justification for the order of ephedrine, telling the supply company
that it was to be used as a growth enhancer in fertilizer. When the supply
company notified the DEA, the DEA allowed the order to be filled, but advised
the supply company to notify DEA again if a subsequent order was received.
When the supply company received a second order from defendant, it began its
investigation which resulted in the arrests of the members of the conspiracy.

                                        -4-
that he personally sold eighty pounds, or thirty-seven kilograms, of

methamphetamine at the price of $10,000 per pound. There was testimony at trial

that defendant received at least $77,000 of this amount at various times and in

various ways. See Albers, 93 F.3d at 1473. Consistent with Mr. Cambron’s

testimony, Sanford Angelos, a DEA chemist, testified that, using the red

phosphorus method, 100 kilograms of l-ephedrine would yield approximately 30

to 90 kilograms of methamphetamine.

      Defendant argues that the court’s reliance on the testimony of Mr. Cambron

as to the amount of methamphetamine produced lacks the requisite indicia of

reliability, and therefore, he should be sentenced based only on the amount of

ephedrine obtained by the conspiracy. See U.S.S.G. § 2D1.11 (twenty or more

kilograms of ephedrine results in an offense level of twenty-eight). In United

States v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990), this court affirmed the

sentencing court’s reliance on the testimony, in a separate trial, of defendant’s

brothers and coconspirators. We held that, providing “‘the information has

sufficient indicia of reliability,’” the court may properly consider it at sentencing

“‘without regard to its admissibility under the rules of evidence applicable at

trial.’” Id. at 1179-80 (quoting U.S.S.G. § 6A1.3).

      We agree with the resentencing court’s conclusion that there was no serious

dispute that at least thirty-six kilograms of methamphetamine were attributable to


                                          -5-
defendant. Defendant has not established that Mr. Cambron’s trial testimony

regarding the amount of ephedrine purchased, the yield of methamphetamine from

the ephedrine (which comported with the testimony of Mr. Angelos, the DEA

chemist), the amount Mr. Cambron admitted he personally sold, and the evidence

of the amount of the proceeds of the operation defendant received failed to

possess sufficient indicia of reliability to support the thirty-six kilogram amount

used to determine defendant’s sentence. See Beaulieu, 893 F.2d at 1181 (holding

that reliable hearsay may be used at sentencing to determine the appropriate

punishment). Therefore, we determine no clear error in the district court’s

calculation of the quantity of drugs attributable to defendant for purposes of

establishing his base offense level.

      Next, defendant asserts that the sentencing court erred in sentencing him

based on d-methamphetamine rather than the less onerous sentence which would

result from l-methamphetamine. 2 At defendant’s resentencing hearing, Agent

Stansbury testified that in his interviews with Mr. Francis and Mr. Randa, they

told him they manufactured the methamphetamine using ephedrine, hydriodic



2
       For purposes of calculating a base offense level, one gram of
d-methamphetamine is equivalent to one kilogram of marijuana and one gram of
l-methamphetamine is equivalent to 40 grams of marijuana. See U.S.S.G.
§ 2D1.1, Drug Equivalency Tables. There is, therefore, a significant sentencing
difference between the two isomers. See United States v. Deninno, 29 F.3d 572,
579 & n.3 (10th Cir. 1994).

                                         -6-
acid, and red phosphorus. Agent Stansbury further testified as to his thirteen

years’ experience as part of the DEA’s lab team, his training in the manufacture

of methamphetamine, and his discussions with John Meyers, a chemist, regarding

the red phosphorus method of methamphetamine manufacture. Agent Stansbury

testified that Mr. Meyers told him the red phosphorus method yielded

d-methamphetamine, and that this fact was consistent with Agent Stansbury’s

experience and training. Agent Stansbury also testified that l-methamphetamine

is an isomer rarely seen on the streets due to its less desirable potency. 3

      Defendant argues on appeal that the government did not establish by a

preponderance of the evidence that the methamphetamine involved in his offense

was d-methamphetamine instead of the less potent l-methamphetamine. We

disagree. “We review a district court’s factual finding that a specific isomer of

methamphetamine was involved in criminal activity for clear error.” United

States v. Lande, 40 F.3d 329, 330 (10th Cir. 1994). We will not disturb a

sentencing court’s finding unless it lacks factual support in the record, or “we are



3
       Because the l-methamphetamine isomer is less desirable, is rarely seen on
the streets, and is the product of a “botched attempt to produce
d-methamphetamine,” the Sentencing Guidelines were amended on November 1,
1995, to eliminate the distinction between the two isomers for sentencing
purposes. Amendment 518, U.S.S.G. Manual, Appendix C at 423. “Under this
amendment, l-methamphetamine would be treated the same as
d-methamphetamine (i.e., as if an attempt to manufacture or distribute
d-methamphetamine).” Id.

                                           -7-
left with the definite and firm conviction that a mistake has been made after

reviewing all of the evidence.” Id. The government bears the burden of proving

by a preponderance of the evidence the type of methamphetamine involved in the

offense of conviction. See United States v. Glover, 97 F.3d 1345, 1347 (10th Cir.

1996).

         Here, the court found that the methamphetamine involved in defendant’s

offense was, more likely than not, d-methamphetamine. In reaching this

conclusion, the sentencing court again relied on the testimony of defendant’s

coconspirators presented at defendant’s trial regarding the manufacture and sale

of the methamphetamine, and the testimony of Agent Stansbury regarding his

experience with methamphetamine manufacture as well as his discussions with

Mr. Meyers as to the isomer produced by the red phosphorus manufacture method

used by defendant’s coconspirators in California. Moreover, when the drums

which had contained the ephedrine were seized at defendant’s place of business,

they were labeled l-ephedrine, and although they had been refilled with potash,

there were detectable traces of l-ephedrine remaining. According to Mr. Meyers,

the precursor chemical, l-ephedrine, always produces the d-methamphetamine

isomer.

         Here, the government adequately established that the substance involved in

defendant’s offenses of conviction was d-methamphetamine. See United States v.


                                          -8-
Dudden, 65 F.3d 1461, 1471 (9th Cir. 1995) (even when “no direct evidence of

the drug’s chemical composition or the method of its manufacture is available,

circumstantial evidence may be sufficient to determine which isomer is

involved”); see also Lande, 40 F.3d at 331 (relying on circumstantial evidence to

uphold finding that drug involved was d-methamphetamine). Accordingly, based

upon our review of the record, we conclude that the district court did not commit

clear error in finding that the methamphetamine involved in the conspiracy for

which defendant was convicted was, more likely than not, d-methamphetamine.

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




                                        -9-
