                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                       October 21, 2005
                                   TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 04-5128
 v.                                              (D.C. No. CR-03-168-1-P)
                                                        (N.D. Okla.)
 ROBERT EUGENE CONNER,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
KELLY, Circuit Judge.


      Defendant-Appellant Robert E. Conner, Jr., appeals from his conviction and

sentence for knowingly maintaining a place for the purpose of manufacturing,

distributing, or using a controlled substance, 21 U.S.C. § 856(a)(1) and (b)(1).

He was sentenced to 97 months imprisonment followed by three years of

supervised release. On appeal, he challenges (1) the denial of his motion for a

judgement of acquittal based on the sufficiency of evidence, (2) the admission



      *
        This order and judgment is not binding precedent, except under the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.
into evidence guns found in his home, and (3) the district court’s finding of facts

and use of the United States Sentencing Guidelines when calculating his sentence.

Our jurisdiction arises under 28 U.S.C. § 1291 and 28 U.S.C. § 3742(a), and we

affirm the conviction but remand for resentencing.



                                    Background

     A confidential informant first alerted Tulsa Police Officer Brian Comfort of

suspected drug dealing at a home located at 9765 East Fifth Street in Tulsa,

Oklahoma. For approximately four days, the officer conducted surveillance of the

home and witnessed 15 to 20 short-term visitors, suggesting short-term drug

traffic. The morning of September 4, 2003, a search warrant was executed on the

home.

        Entering the home, Officer Comfort smelled strong chemical odors which

he immediately associated with a methamphetamine lab. The odor grew stronger

as he approached and entered the garage. Other officers present at the time of the

search confirmed the presence of a strong chemical odor which they associated

with a methamphetamine lab. Shortly after entering the home, police officers

apprehended Mr. Conner, an 18 month occupant of the home.

        Searching the kitchen and garage, police discovered methamphetamine

production equipment, precursor chemicals, and other ingredients commonly used


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to manufacture methamphetamine.

      A search of Mr. Conner’s bedroom produced a bag containing marijuana,

drug paraphernalia, and a 2000 milliliter Pyrex round-bottom flask. In Mr.

Conner’s bedroom closet, police found a loaded 16-gauge pistol-gripped shotgun,

a loaded .22-caliber semi-automatic rifle with a scope, a 9mm semi-automatic

pistol, and ammunition.

      A search of the bedroom associated with Daniel Wright, Mr. Conner’s

roommate of approximately six weeks, produced a marijuana cigarette,

pseudoephedrine pills in a bottle, drug notations, and eight guns.

      At trial, Officer Comfort and Tulsa Police Sgt. Harold Adair testified that

taking the evidence as a whole, a methamphetamine lab existed at the residence.

They also testified that the quantity of methamphetamine mixture seized, 44.50

grams, in combination with the presence of scales and baggies, indicated

methamphetamine distribution, rather than personal use. Both officers have

extensive training and field experience in the investigation of clandestine

methamphetamine labs.



                                     Discussion

A. Sufficiency of the Evidence

      Mr. Conner moved for a judgment of acquittal after the close of the


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government’s evidence and after the close of all the evidence. Fed. R. Crim. P.

29. The district court denied both motions. After the guilty verdict, Mr. Conner

unsuccessfully renewed his motion.

      A motion for judgment of acquittal effectively challenges the sufficiency of

the evidence. In reviewing the evidence, our review is de novo and we ask only

whether, taking the evidence – both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom – in the light most favorable to the

government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt. United States v. Scull, 321 F.3d 1270, 1282 (10th Cir. 2003).

We neither weigh conflicting evidence, nor consider the credibility of witnesses.

United States v. Shepard, 396 F.3d 1116, 1119 (10th Cir. 2005). Our task is to

determine whether the evidence, if believed, would establish each element of the

crime. Id. We may overturn a jury verdict only if no reasonable juror could have

reached such a verdict. Id.

      In order to convict Mr. Conner under 21 U.S.C. § 865(a)(1), the

government was required to prove beyond a reasonable doubt that he knowingly

opened or maintained a place for the purpose of manufacturing, distributing, or

using a controlled substance. Scull, 321 F.3d at 1284. Sufficient evidence exists

to support the conviction.

      The government provided sufficient evidence to support the knowingly


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“maintained a place” element of the statute. Where the “place” in question is a

residence, the defendant must have a “substantial connection” to the home and

must be more than a “casual visitor.” United States v. Verners, 53 F.3d 291, 296

(10th Cir. 1995). When the defendant lives in the house, this element is normally

easily proved. Id. Although Mr. Conner did not own this home, he lived there

continuously for 18 months and clearly exercised dominion and control over it.

Thus, he knowingly maintained a place within the meaning of the statute.

      In Verners, this court addressed what constitutes “for the purpose of”

within the context of the statute. We concluded that, at least in the residential

context, the manufacture, distribution or use of drugs must be at least one of the

primary or principal uses to which the house is put. Id. We drew upon the

business analogy test developed by the Seventh Circuit, in United States v. Banks,

987 F.2d 463 (7th Cir. 1993), to further interpret “for the purpose of:”

      [T]he more characteristics of a business that are present, the more likely
      it is that the property is being used “for the purpose of” those drugs
      prohibited by § 865(a)(1). Evidence that a place is being used to run
      such a business might include: investment in the tools of the trade (e.g.,
      laboratory equipment, scales, guns and ammunition to protect the
      inventory and profits); packaging materials (baggies, vials, gelcaps,
      etc.); financial records; profits (either in the form of cash or in
      expensive merchandise); and the presence of multiple employees or
      customers.

53 F.3d at 296-97. We made clear that the defendant must personally have the

specific purpose to maintain a place for manufacturing, distributing, or using a


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controlled substance; it is not sufficient for others to possess it. Id. at 297-98.

“[O]ne way to tell whether a defendant had the requisite mental purpose under

(a)(1) is to decide whether he acted as a supervisor, manager, or entrepreneur in

the drug enterprise, as opposed to someone who merely facilitated the crime.” Id.

at 296 (citing Banks, 987 F.2d at 466-67) (internal quotations omitted).

      The government provided sufficient evidence that Mr. Conner’s residence

was being used to run a methamphetamine manufacturing and distributing

business. Officer Comfort and Sgt. Adair testified that tools of this trade were

discovered throughout the house. An abundance of methamphetamine

manufacturing equipment, precursor chemicals, and other necessary ingredients

were found throughout the kitchen and garage. Guns and ammunition were

discovered in the bedrooms of Mr. Conner and Mr. Wright. Scales and packaging

materials in the form of small, clear zip-lock baggies were also found.

      Although no customers were present when the police searched Mr.

Conner’s home, trial testimony established the existence of a customer base.

Officer Comfort testified that during his surveillance of Mr. Conner’s home, he

witnessed 15 to 20 short-term visitors, which based on his experience and

training, were indicative of the sale of drugs at the residence. Three witnesses

also testified that they visited Mr. Conner’s home where they used or purchased

drugs. Moreover, Sgt. Adair and Officer Comfort testified that the quantity of


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methamphetamine mixture seized from the kitchen, 44.50 grams, in combination

with the presence of scales and baggies, indicated it was being used for

distribution, rather than personal use.

      The government also provided sufficient evidence that Mr. Conner

personally had the specific purpose to maintain his home for manufacturing and

distributing methamphetamine. Adam Tanner testified that in the summer of

2003, he went to Mr. Conner’s residence and sold him one and a half pounds of

phosphorous acid flakes, a precursor chemical used to manufacture

methamphetamine. Approximately one week before police searched the

residence, Mr. Tanner returned to Mr. Conner’s residence with a one pound bag

of flakes which he sold to both Mr. Conner and Mr. Wright. Heather Coats also

testified that Mr. Conner provided her and her friends methamphetamine during

their visits to his home. In addition, Mr. Conner maintained three firearms in

close proximity to these activities. Taken together, this evidence permits the

inference that Mr. Conner was an “entrepreneur” in the methamphetamine

manufacturing and distributing business, not a mere facilitator, and that he

personally maintained his residence for such purposes. Cf. Verners, 53 F.3d at

297 (overturing the conviction of a mother under § 865(a)(1), who resided in a

residence with her drug dealing son, because the government failed to provide

evidence she occupied more than a minor role as a facilitator in her son’s drug


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business).

      Mr. Conner argues that a business analogy is wanting due to a lack of

present employees or customers, financial records concerning distribution, and

sums of cash showing sales, and no evidence of multiple employees or customers.

Aplt. Br. at 14. For several reasons, we cannot accept this contention. First, as

noted, the government provided evidence of a customer base. The absence of

individual customers or employees in the residence during the morning police

search does little to cast doubt on that evidence. Second, establishing the

business analogy employed in Verners does not require the presence of every

business characteristic provided therein. See id. at 297. Nor is the list of

examples provided exhaustive. Id. Rather, we explained that “the more

characteristics of a business that are present, the more likely it is that the property

is being used ‘for the purpose of’ those drugs prohibited by § 865(a)(1).” Id. at

296-97.

B. Admission of Guns Found in the Home

      Mr. Conner objected to the admission of the guns recovered from his

bedroom and Mr. Wright’s bedroom on the grounds that they were not relevant to

the crime charged in the indictment and their admission would be unfairly

prejudicial. The district court overruled his objections and found that the

evidence was admissible under Fed. R. Evid. 404(b), and not unfairly prejudicial.


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      We review a district court's decision to admit evidence for abuse of

discretion, U.S. v. Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999), and we can

affirm if the evidence was admissible regardless of the reasoning given by the

district court. U.S. v. Robinson, 978 F.2d 1554, 1562 (10th Cir. 1992). While we

are somewhat dubious as to whether possession of loaded firearms constitutes

404(b) evidence, there can be little question that the guns were admissible in the

context of this case to prove the crime charged. We have held on several

occasions that the presence of loaded weapons, especially in close proximity to

drugs and/or drug paraphernalia, is probative as “tools of the trade.” See United

States v. Becker, 230 F.3d 1224, 1231 (10th Cir. 2000); see also Verners, 53 F.3d

at 297 (in the context of the business analogy discussed supra, “[e]vidence that a

place is being used to run such a business might include . . . guns and ammunition

to protect the inventory and profits”). Drug dealers may, in fact, carry weapons to

protect their merchandise, their cash receipts, and to intimidate prospective

purchasers. United States v. Nicholson, 983 F.2d 983, 990 (10th Cir. 1993).

Officer Comfort, in fact, testified that methamphetamine manufacturers,

distributors, and users possess guns for the same reasons. Therefore, evidence

that Mr. Conner and Mr. Wright possessed loaded guns in close proximity to

drugs and drug paraphernalia was relevant under Rule 401 because, insofar as

guns are used by persons in the drug trade, it supports the inference that Mr.


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Conner personally had the specific purpose to maintain his residence for

manufacturing, distributing, or using methamphetamine.

        We also conclude that the district court did not abuse its discretion in

ruling that the evidence of the guns was not unfairly prejudicial. We have held

that:

        In the Rule 403 context . . . evidence is unfairly prejudicial if it
        makes a conviction more likely because it provokes an emotional
        response in the jury or otherwise tends to affect adversely the jury’s
        attitude toward the defendant wholly apart from its judgment as to
        his guilt or innocense [sic] of the crime charged. Even if this type
        of prejudice is found, it must substantially outweigh the probative
        value of the evidence in order to be excluded under Rule 403.

Tan, 254 F.3d at 1211-12 (internal quotation marks and citations omitted)

(italics in original). Rulings concerning admission of evidence based on

its probative value versus prejudicial effect are within the sound discretion

of the district court. United States v. Jones, 44 F.3d 860, 875 (10th Cir.

1995). Here, the district court concluded that the guns were relevant to an

issue in the case, and that they would not adversely affect the jury’s

attitude towards the defendant, independent of guilt or innocence.

Moreover, the district court gave a proper limiting instruction. Under

these circumstances, no abuse of discretion has been shown.

C. Booker Issues

        Based on the facts reflected in the jury verdict alone, the sentencing


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range for Mr. Conner would have been between 12 and 18 months of

incarceration. The district court enhanced his sentence based on facts it found

by a preponderance of the evidence. First, the district court found that Mr.

Conner was responsible for 44.50 grams of methamphetamine mixture and

8,640 milligrams of pseudoephedrine, raising his base offense level from 12 to

26. 1 U.S.S.G. § 2D1.1(c)(7). Second, the district court applied a two-point

enhancement for possession of a firearm during the commission of a drug

offense. Id. § 2D1.1(b)(1). With a criminal history category of II and a total

offense level of 28, the applicable guideline range was 87 to 108 months.

      At the sentencing hearing, Mr. Conner objected to the district court’s

application of the Sentencing Guidelines based on judicial fact-finding,

contending that this was in violation of Blakely v. Washington, 542 U.S. 296

(2004). In accordance with settled law at the time, the district court overruled

that objection, and entered a sentence in the middle of the guideline range, 97

months.

      In United States v. Booker, --- U.S. ---, 125 S. Ct. 738 (2005), the


      1
       The PSR relied upon by the district court arrived at the base offense level
of 26 as follows: “[Mr.] Conner is responsible for 44.50 grams of
methamphetamine mixture which converts to 89 kilograms of marijuana. He is
also responsible for 8,640 milligrams of pseudoephedrine from full packages
which converts to 86 kilograms of marijuana . . . Based on a total of 175
kilograms of marijuana equivalent, U.S.S.G. § 2D1.1(c)(7) provides a base
offense level of 26.” Second Revised PSR, dated July, 12 2004, ¶ 19.

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Supreme Court 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. To

remedy this violation, the Court struck down those provisions of the

Sentencing Reform Act that required mandatory application of the Sentencing

Guidelines, instead requiring district courts to consult them in an advisory

fashion. Id. at 756-57. Under Booker, therefore, the sentencing procedure in

this case was clearly unconstitutional. The jury did not find, and the defendant

did not admit, the facts on which the district court relied to enhance Mr.

Conner’s sentence.

      The government concedes that Mr. Conner’s timely Blakely objection

adequately preserved his Booker argument, but it contends that the error was

harmless. See Fed. R. Crim. P. 52(a); United States v. Riccardi, 405 F.3d 852,

874-75 (10th Cir. 2005) (applying harmless error analysis to a preserved

constitutional Booker error). Fed. R. Crim. P. 52(a) provides that “[a]ny error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.” In the context of a misapplication of the Guidelines under 18

U.S.C. § 3742(f)(1), the Supreme Court has held that “once the court of

appeals has decided that the district court misapplied the Guidelines, a remand


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is appropriate unless the reviewing court concludes, on the record as a whole,

that the error was harmless, i.e., that the error did not affect the district court’s

selection of the sentence imposed.” Williams v. United States, 503 U.S. 193,

203 (1992); Riccardi, 405 F.3d at 875. In harmless error cases, where the

error was preserved, the government bears the burden of demonstrating that

the substantial rights of the defendant were not affected. Riccardi, 405 F.3d at

875. In analyzing whether a preserved constitutional Booker error is harmless,

we have considered various factors, including the strength of the evidence

supporting the district court’s factual findings and the likelihood that the

district court would have imposed a less severe sentence had it known it had

discretion. Id. at 875-76. Applying these standards, the government has not

persuaded us that the error complained of was harmless.

      The government’s argument is that Mr. Conner’s total offense level was

supported by the evidence and resulted in a sentence in the middle of the

sentencing range provided by the Sentencing Guidelines. Aplee Br. at 22-23.

Although a sentence in the middle of the sentencing range suggests an exercise

of discretion, we do not think that the government has carried its burden–its

presentation does not demonstrate “overwhelming” evidence to support the

district court’s factual findings, cf. Riccardi, 405 F.3d at 875, nor does it

“convince us beyond a reasonable doubt that the district court would have


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imposed just as harsh a sentence in the absence of a mandatory guideline

regime.” See United States v. Wyndrix, 405 F.3d 1146, 1158 (10th Cir. 2005).

Thus, Mr. Conner must be resentenced. We do pause, however, to note our

particular concern with the district court’s attribution of 8,640 milligrams of

pseudoephedrine to Mr. Conner. Our review of the record reveals that

evidence of this quantity was not presented during the trial and the issue was a

subject of heated dispute in the sentencing hearing. Moreover, the evidence

provided by the government at the sentencing hearing did not clearly indicate

whether the calculation of the quantity of pseudoephedrine included the weight

of the entire tablets or just the pseudoephedrine contained in the tablets. See

U.S.S.G. § 2D1.1, comment. (n.10) (explaining that in a case involving

pseudoephedrine, “use the weight of the . . . pseudoephedrine . . . contained in

the tablets, not the weight of the entire tablets, in calculating the base offense

level”).

      The conviction is AFFIRMED and the case is REMANDED for

resentencing.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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