                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 7, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-7051
          v.                                           (E.D. Oklahoma)
 PHILLIP LAMONT JONES,                        (D.C. No. 6:06-CR-00070-RAW-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.



I. INTRODUCTION

      This is a direct appeal following the guilty plea and sentencing of Phillip

Lamont Jones. On November 16, 2006, Jones was indicted on five criminal

charges. He pleaded guilty to one of the charges in the indictment, Possession of

Ecstasy with the Intent to Distribute. After hearing testimony that Jones was part

of an ongoing drug manufacturing and distribution scheme, the district court

attributed to Jones additional drugs beyond those found on his person at the time


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of arrest. Jones challenges his sentence on several grounds. First, he argues the

Due Process Clause mandated that the district court apply a higher evidentiary

standard than preponderance of the evidence because the additional drugs

significantly increased his sentence range under the advisory Sentencing

Guidelines. Second, he argues the district court misinterpreted the Guidelines and

improperly attributed to him drugs not relevant to the offense for which he was

convicted. Third, he argues the district court lacked sufficient evidence to

support attribution of all the additional drugs. This court rejects each of Jones’s

arguments and hereby AFFIRMS his sentence.

II. BACKGROUND

      On September 14, 2006, an anonymous caller directed police in Muskogee,

Oklahoma, to the residence of Jones’s sister. The caller said Jones was in

possession of powder cocaine and was going to convert the cocaine into crack.

Officers set up surveillance of the residence. They saw a man later identified as

Jones leave the house and put a plastic bag in a garbage receptacle at the curb

outside the residence. The officers subsequently retrieved the plastic bag from

the garbage, opened it, and found inside plastic baggies that later tested positive

for cocaine residue.

      After Jones placed the plastic bag in the garbage, he and three other

individuals got into a car and departed from the residence. The surveilling

officers followed the vehicle and observed a moving violation and an expired tag,

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so they had a marked police unit stop the car. The occupants were asked to exit

the car so the police could conduct a dog-sniff of the vehicle. One occupant,

Grover Evans, began to run from the police. As he ran he threw some crack to

the ground. When he was apprehended more crack was found in his pocket.

Evans later told authorities Jones was the leader of a local gang and a source of

supply for crack, PCP, ecstasy, and methamphetamine. He also told authorities

Jones cooked powder cocaine into crack. Evans said the drugs he threw on the

ground had been placed in his lap by Jones when the police initiated the traffic

stop. After the traffic stop, the officers obtained a search warrant and searched

the house of Jones’s sister. They found powder cocaine as well as paraphernalia

for cooking crack.

      On October 10, 2006, the police received information concerning possible

drug activity and executed a search warrant on another residence. Three men fled

the residence, and in their paths police found plastic baggies with cocaine and

marijuana. Inside the house, officers arrested Jones, who had forty-one

individually wrapped ecstasy pills, 2.6 grams of powder cocaine, and $140 in cash

on his person. Officers also found crack and paraphernalia for cooking crack

inside the residence.

      Jones was charged with five counts, including two counts of Aiding and

Abetting the Manufacture of Crack Cocaine, Possession of Ecstasy with the Intent

to Distribute, Possession of a Firearm in Furtherance of a Drug Trafficking

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Crime, and Possession of Cocaine. Jones pleaded guilty to Possession of Ecstasy

with the Intent to Distribute. When he entered his plea, Jones admitted to the

district court he intended to distribute some of the ecstasy pills to others.

      Prior to sentencing a Presentence Report (“PSR”) was prepared. In

calculating Jones’s Guidelines sentence range, the probation officer calculated the

base offense level by attributing to Jones all of the illicit drugs found on the other

individuals and in the residences during both incidents. Along with other relevant

characteristics not challenged on appeal, this gave Jones a total offense level of

32. His criminal history category was III. This gave him a Guidelines sentence

range of 151-188 months’ imprisonment. Jones objected to the attribution of the

additional drugs beyond the ecstasy in his pocket and argued sentencing facts

needed to be proved by a clear and convincing standard. At sentencing, the

district court rejected Jones’s objections and found by a preponderance of the

evidence that Jones “was in the business of dealing in illicit substances.” The

court continued: “Based on his involvement in the distribution of illegal drugs,

including cocaine base . . . it is reasonable to believe that Mr. Jones was not only

aware of the drugs recovered during the [September 14 and October 10 incidents],

he was also involved in handling [] these drugs as well.” The court attributed to

Jones the same quantity of drugs suggested in the PSR. The court then imposed a

within-Guidelines sentence of 180 months’ imprisonment. If the district court

had attributed to Jones only those drugs found on his person, his Guidelines range

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would have been 21-27 months. If the evidence from the September incident had

been excluded, the Guidelines range would have been 78-97 months.

III. DISCUSSION

A. Standard of Proof for Sentencing Enhancements

      The district court applied a preponderance of the evidence standard when

considering the additional facts offered to support the attribution of all the drugs

to Jones. In doing so, Jones argues it unconstitutionally increased his sentence.

He claims due process prevents a district court from finding additional facts at

sentencing that increase a defendant’s sentence so much that the additional facts

are the “tail which wags the dog” of the underlying offense. McMillan v.

Pennsylvania, 477 U.S. 77, 88 (1977). While acknowledging not every

sentencing increase based upon judicially found facts is a due process violation,

Jones argues the increase in his Guidelines range is so substantial that it

implicates due process concerns. At oral argument, counsel for Jones also argued

the substantial increase in a sentence based upon judicially found facts implicates

the Sixth Amendment right to a trial by jury.

      Jones’s arguments under both the Due Process Clause and the Sixth

Amendment are foreclosed by binding precedent. In United States v. Washington,

11 F.3d 1510, 1515-16 (10th Cir. 1993), this court considered a due process

challenge to a drug trafficking sentence. The district court increased the

defendant’s base offense level by eight levels after finding, by a preponderance of

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the evidence, the defendant trafficked a greater quantity of drugs than the quantity

for which he was convicted. Id. This resulted in the Guidelines sentence range

increasing from approximately twenty years to consecutive forty-year terms.

Id. at 1516. This court upheld the district court’s use of a preponderance

standard, stating: “the Due Process Clause does not require sentencing facts in the

ordinary case to be proved by more than a preponderance standard. . . . At least

as concerns making guideline calculations the issue of a higher than a

preponderance standard is foreclosed in this circuit.” Id.

      Jones argues Washington is no longer controlling because it came before

the line of Supreme Court and Tenth Circuit opinions beginning with United

States v. Booker, 543 U.S. 220 (2005). In particular, Jones notes this court

considers sentences within the Guidelines range to be presumptively reasonable.

United States v. Ivory, 532 F.3d 1095, 1107 (10th Cir. 2008). Because sentences

within the Guidelines range are presumed reasonable on appeal, Jones argues

there is a greater need for scrutiny into how Guidelines sentences are calculated,

and in particular a higher standard of proof should be required to prove relevant

conduct.

      Jones’s argument that the Booker line of cases rendered Washington

obsolete is based on the premise that Booker made it more difficult for district

courts to depart or vary from the Guidelines. This is plainly not the import of

Booker. Booker itself enabled district courts to vary from mandatory Guidelines

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sentences by rendering the Guidelines advisory. 543 U.S. at 259-61. While a

within-Guidelines sentence is presumed reasonable at the appellate level, a

district court may not presume the Guidelines range is reasonable, but must

instead “make an individualized assessment based on the facts presented.” Gall v.

United States, 128 S.Ct. 586, 596-97 (2007). Booker and its progeny have not

made it more difficult for defendants to avoid within-Guidelines sentences; they

have made it easier to do so. Therefore, there is no occasion for this court to

revisit its holding in Washington, and that case forecloses Jones’s due process

argument.

         At oral argument counsel for Jones also suggested the Sixth Amendment

right to a trial by jury requires a higher evidentiary standard for judicially found

facts at sentencing. That argument is squarely foreclosed by this court’s post-

Booker precedent, which holds the Sixth Amendment does not require a

heightened evidentiary standard when the district court finds facts to calculate an

advisory Guidelines range. United States v. Rodriguez-Felix, 450 F.3d 1117,

1131 (10th Cir. 2006); United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.

2005).

B. Sentence Calculation Based Upon Relevant Conduct

         Jones argues the drugs discovered on September 14 should not be attributed

to him because, under U.S.S.G. § 1B1.3(a)(1), the relevant conduct must have

occurred “during the commission of the offense of conviction, in preparation for

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that offense, or in the course of attempting to avoid detection or responsibility for

that offense.” Because the acts performed nearly a month earlier were not

committed during the commission of the act of conviction, in preparation for that

offense, or in the course of attempting to avoid detection for that offense, he

argues those drugs were improperly attributed to him.

      When hearing a challenge to a district court’s sentencing calculation, this

court reviews the district court’s factual findings for clear error and its legal

conclusions de novo. United States v. Mozee, 405 F.3d 1082, 1088 (10th Cir.

2005). This court views “the evidence and inferences therefrom in the light most

favorable to the district court’s determination.” Id.

      Even assuming Jones is correct that none of the September 14 conduct is

attributable under § 1B1.3(a)(1), that was not the applicable Guidelines provision

used to calculate his sentence. Section 1B1.3(a)(2) governs the calculation of

relevant conduct for “offenses of a character for which § 3D1.2(d) would require

grouping of multiple counts.” This is the applicable provision for drug offenses

based primarily on quantity. See § 1B1.3 cmt. n.2(c)(6), (8); § 3D1.2 cmt. n.6.

The PSR cited specifically to § 1B1.3(a)(2). Section 1B1.3(a)(2) defines as

relevant conduct “all acts and omissions . . . that were part of the same course of

conduct or common scheme or plan as the offense of conviction.” Therefore, the

district court was required only to find the acts of September 14 were part of the




                                           -8-
same course of conduct or common scheme or plan as the act for which Jones was

convicted.

      Based upon Jones’s own admission that he intended to distribute the

ecstasy, the evidence that Jones supplied the Muskogee area with multiple kinds

of drugs, Jones’s presence during both incidents, and the drug manufacturing

paraphernalia discovered at both houses, the district court had sufficient evidence

to find by a preponderance of the evidence that: (1) Jones was engaged in an

ongoing scheme to manufacture and distribute narcotics, and (2) Jones’s

possession of ecstasy was part of the ongoing drug distribution scheme. Evans

was caught in possession of cocaine on September 14 after he ran from a car in

which he was riding with Jones. The district court credited Evans’s statement

that Jones gave him the crack discovered that day. Consequently, the district

court had sufficient evidence to find Jones, Evans, and others were engaged in an

ongoing scheme to manufacture and distribute drugs, and the drugs and drug

paraphernalia found on September 14 and October 10 were part of the ongoing

scheme. Therefore, the district court did not err when it attributed to Jones all of

the drugs discovered during both incidents.

IV. CONCLUSION

      The district court correctly applied a preponderance of the evidence

standard when it made additional findings of fact regarding relevant conduct. It




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also correctly applied the Sentencing Guidelines and its findings were supported

by sufficient evidence. Therefore, Jones’s sentence is AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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