                                                                            F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      December 29, 2005
                                    TENTH CIRCUIT
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                     No. 04-4311
                                                      (District of Utah)
 CARLOS AMANDO GALAZ-FELIX,                     (D.C. No. 1:03-CR-62-04-TC)
 also known as Esteban Felix-Urrea,
 also known as “Topo,”

           Defendant-Appellant.




                                 ORDER AND JUDGMENT *


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.



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

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This 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       This order and judgment is not binding precedent, except under the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.
                              I.    INTRODUCTION

      A jury found Carlos Armando Galaz-Felix guilty of conspiracy to distribute

controlled substances, possession of a firearm by a restricted person, and unlawful

reentry by a deported alien. The district court sentenced him to life imprisonment.

Galaz-Felix appeals, arguing the district court erred when it failed to suppress

evidence obtained by police during a warrantless search of his residence and when

it admitted into evidence certain “drug ledgers” found in his house. Galaz-Felix

also asserts he must be resentenced in light of the Supreme Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005). This court exercises jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm the district court’s decisions with

respect to the search and evidentiary issues. We remand for resentencing.

                              II.   BACKGROUND

      Early in 2003, police officers in Ogden, Utah began to suspect that Galaz-

Felix was part of a drug distribution network. On April 18, 2003, Ogden City

Police officers Aaron Johnson and Troy Burnett went to Galaz-Felix’s home,

identified themselves, and asked if they could come inside. Galaz-Felix opened

the door and invited the officers into the house. Galaz-Felix’s wife, Brenda

Beltran, was also in the house at the time.

      Officer Johnson explained to Galaz-Felix and Beltran that he and Officer

Burnett were investigating drug complaints. He asked them whether they used


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illegal drugs. When Galaz-Felix and Beltran told Officer Johnson they did not use

drugs, Officer Johnson asked whether police officers could search the home.

Both Galaz-Felix and Beltran answered in the affirmative.

      After Galaz-Felix consented to the search, he immediately began to make

calls on his cell phone. While Galaz-Felix was on the phone, Officer Johnson

followed Beltran into the kitchen and showed her a “consent to search” form.

Officer Johnson explained the form, requested that Beltran read it, and asked

whether she would be willing to sign it. Beltran read and signed the consent to

search form.

      After Beltran signed the consent form, other police officers began to search

the house. In the course of the search, officers discovered a firearm, a large

amount of cash, some marijuana, and “ledgers” allegedly used to record drug

transactions. Officers arrested and questioned Galaz-Felix and Beltran.

                                 III.   ANALYSIS

A.    Suppression of Evidence

      Galaz-Felix claims the district court erred when it denied his motion to

suppress evidence obtained from the search of his residence because the court

incorrectly found he had consented to the search. When reviewing a district

court’s denial of a motion to suppress, this court “accept[s] the district court’s




                                          -3-
factual findings unless those findings are clearly erroneous.” United States v.

Long, 176 F.3d 1304, 1307 (10th Cir. 1999). “[W]e consider the totality of the




                                         -4-
circumstances and view the evidence in a light most favorable to the government. .

. . The credibility of witnesses, the weight to be given evidence, and the

reasonable inferences drawn from the evidence fall within the province of the

district court.” Id. (citations omitted).

        Galaz-Felix contends he presented evidence to show that police officers

began to search his residence without consent. Galaz-Felix claims he asked

Officers Johnson and Burnett for a search warrant when they first entered his

house, and claims he attempted to request an attorney when the officers failed to

produce a warrant. Both he and Beltran testified that police officers began to

search the house before Beltran signed the consent to search form. Galaz-Felix

also contends recorded telephone conversations from the day of the search

demonstrate that police officers had entered the residence by 5:50 p.m. He argues

these recordings cast doubt on Officer Johnson’s testimony that he and Officer

Burnett did not enter the house until 6:02 p.m. Galaz-Felix also points out the

consent to search form indicates Beltran did not give her written consent to the

search until 6:15 p.m. Galaz-Felix argues the gap between the time police entered

his residence and the time Beltran signed the consent form is substantial and

supports his contention that the police began their search before he or Beltran

consented.




                                            -5-
      The district court considered and rejected Galaz-Felix’s arguments. It took

into account Galaz-Felix’s and Beltran’s personal interest in the outcome of the

suppression hearing, noted several inconsistencies in their version of events, and

described some parts of their testimony as having “an ‘over the top’ quality.”

United States v. Galaz-Felix, No. 1:03-CR-62, at 14–16 (D. Utah Feb. 5, 2004).

The court assigned no significance to the “time gaps” highlighted by Galaz-Felix

because there was no evidence the various police clocks were synchronized, nor

was there evidence the time written on the consent form was anything more than

an estimate. Id. at 14. The court also remarked that Galaz-Felix’s and Beltran’s

account of the search “would have been completely inconsistent with customary

police practice.” Id. at 17. It concluded “[t]he only credible evidence in the

record suggests that Mr. Galaz simply, and voluntarily, agreed to let the officers

inside the house.” Id. at 20. Viewing the evidence in the light most favorable to

the government, the district court’s factual findings and credibility determinations

are not clearly erroneous.

B.    Improper Admission of Evidence

      Galaz-Felix argues the district court erred when it admitted into evidence

“drug ledgers” found during the search of his home. Galaz-Felix admits he did not

object to the admission of the drug ledgers at trial. Because Galaz-Felix did not

raise an objection at trial, this court will review only for plain error. United States


                                          -6-
v. Soussi, 316 F.3d 1095, 1109 (10th Cir. 2002). Under this standard, we reverse

the district court’s decision to admit the disputed evidence only if that decision

“placed the underlying fairness of the entire trial in doubt or affected [Galaz-

Felix’s] substantial rights.” Id.

      The government alleged Galaz-Felix maintained the drug ledgers in order to

track and record drug transactions. After conducting a hearing on the issue, the

district court admitted the drug ledgers as nonhearsay evidence under Rule 801 of

the Federal Rules of Evidence. Galaz-Felix now argues, for the first time, that the

drug ledgers lacked a proper foundation and should not have been admitted into

evidence because the government failed to reliably establish that Galaz-Felix

authored the ledgers.

      Ample evidence in the record connects Galaz-Felix to the drug ledgers.

Galaz-Felix was one of two adult residents of the home where investigators

discovered the drug ledgers. In a recorded telephone conversation from jail,

Galaz-Felix gave a coconspirator information about outstanding drug transactions;

the information supplied by Galaz-Felix matched the notes contained in the drug

ledgers. In another phone call, Galaz-Felix told his associate that the police had

obtained the drug ledgers.

      Under the Federal Rules of Evidence, a statement is not hearsay if it “is

offered against a party and is . . . the party’s own statement” or “a statement of


                                          -7-
which the party has manifested an adoption or belief in its truth.” Fed. R. Evid.

801(d)(2)(A), (B). Here, a preponderance of the evidence establishes that Galaz-

Felix authored the ledgers or, at least, manifested a belief in their truth.

Accordingly, the district court did not err when it admitted the ledgers.

C.    Resentencing Under Booker

      Galaz-Felix argues the district court committed constitutional Booker error

when it used judge-found facts to impose a mandatory sentence beyond that which

would have been authorized by the jury’s verdict alone. See United States v.

Gonzales-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc) (defining

constitutional Booker error). Because Galaz-Felix properly preserved this

argument, this court will review for harmless error. United States v. Windrix, 405

F.3d 1146, 1158 (10th Cir. 2005). If we find error, the burden is on the

government to establish the error was harmless. United States v. Lang, 405 F.3d

1060, 1065 (10th Cir. 2005).

      A jury found Galaz-Felix guilty of conspiring to distribute 500 grams or

more of a mixture or substance containing methamphetamine, which corresponds

to 1000 kilograms or more of marijuana equivalent. See U.S. Sentencing

Guidelines Manual (“USSG”) § 2D1.1, cmt. n.10 (2003) (establishing marijuana

equivalent for methamphetamine). Under the Sentencing Guidelines, this quantity




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of methamphetamine 1 results in a base offense level of thirty-two. Id. §

2D1.1(c)(4).

      At sentencing, the district court reviewed the evidence and concluded that

Galaz-Felix actually conspired to distribute over 400,000 kilograms of marijuana

equivalent. Based on this judge-found fact, the court assigned Galaz-Felix a base

offense level of thirty-eight, instead of thirty-two, the base offense level supported

by the jury’s verdict. Applying the Sentencing Guidelines in a mandatory fashion

and adding various enhancements, the court sentenced Galaz-Felix to life

imprisonment. The court noted it would have imposed a different sentence if not

for the Sentencing Guidelines.

      “Constitutional Booker error . . . occurs in the context of a mandatory

sentencing regime when a judge-found fact (other than the fact of a prior

conviction) increases a defendant’s sentence beyond the maximum authorized by a

jury verdict or a guilty plea through the court’s application of the mandatory

guidelines.” United States v. Visinaiz, 428 F.3d 1300, 1315 (10th Cir. 2005).

Here, there is no question that the district court committed constitutional Booker



       1
        “When we review a verdict where the jury did not find a specific amount
of drugs attributable to the defendant, but a range, we only know that the jury
found unanimously the amount at the bottom of the range.” United States v.
Magallanez, 408 F.3d 672, 682 (10th Cir. 2005). Thus, in the instant case, we
only know that the jury found unanimously that Galaz-Felix conspired to
distribute 500 grams of methamphetamine.

                                          -9-
error when it imposed a mandatory sentence based on facts neither admitted by the

defendant nor authorized by the jury’s verdict, which facts increased Galaz-Felix’s

base offense level by six levels. Moreover, the government concedes the error was

not harmless because the district court applied judge-found facts in a mandatory

fashion. 2 Accordingly, we remand for resentencing.

                              IV.    CONCLUSION

      For the reasons set forth above, we affirm the district court’s decisions with

respect to the search and evidentiary issues. We remand for resentencing.



                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




       2
        The government argues the district court did not err when it determined
Galaz-Felix’s sentence using facts found by the judge under a preponderance of
the evidence standard. According to the government, the trial court’s only error
was in treating the Guidelines as mandatory. The government’s distinction makes
no sense in the context of constitutional Booker error. By definition,
constitutional Booker error requires a sentence enhancement which stems from
both the use of judge-found facts and the mandatory application of the sentencing
guidelines. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.
2005) (en banc) (defining constitutional Booker error as arising when a court
“rel[ies] upon judge-found facts, other than those of prior convictions, to enhance
a defendant's sentence mandatorily.”).

                                        -10-
