                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 31 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-8039
                                                    (D.C. No. 00-CR-171-B)
    HUGHIE CASTER,                                         (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and         BRORBY ,
Senior Circuit Judge.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Hughie Caster pleaded guilty to conspiracy to possess

methamphetamine with intent to distribute it, a violation of 21 U.S.C. §§ 846 and


*
      This order and judgment is not binding precedent, except under the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.
841(a)(1). The district court sentenced him to 210 months in prison. He appeals

that sentence, alleging that the court erroneously imposed three separate sentence

enhancements. With one exception discussed below–the enhancement he received

for his “use of a minor” in aid of a drug conspiracy–Caster does not challenge the

district court’s interpretation of the sentencing guidelines. He challenges instead

the factual findings underlying the court’s application of the relevant guidelines.

      We review the sentencing court’s factual findings for clear error. United

States v. Morales, 108 F.3d 1213, 1225 (10th Cir. 1997). To constitute clear

error, we must be convinced that the sentencing court’s findings are not plausible

or permissible in view of the entire record on appeal, remembering that we are

not free to substitute our judgment for that of the district court. Id. Moreover,

we view the evidence underlying a sentence in the light most favorable to the

district court’s decision. See United States v. Conley, 131 F.3d 1387, 1389

(10th Cir. 1997).


                               I. DRUG QUANTITY

      Caster first challenges the district court’s finding that his drug activities

accounted for more than five kilograms of methamphetamine. The district court’s

drug quantity finding rested largely on the testimony of the probation officer who

prepared Caster’s presentence report. The probation officer’s testimony in turn

largely relied on out-of-court statements by Caster’s co-conspirators, who told

                                          -2-
investigators about large amounts of methamphetamine distributed to and by

Caster. All tolled, the probation officer estimated that 5.05 kilograms of

methamphetamine could be attributable to Caster, a conclusion the probation

officer stated was based on conservative estimates. Renewing objections he made

to the presentence report, Caster questions the credibility of one of his

co-conspirators, Zachary Hye, and urges us to exclude altogether several other

transactions apart from those involving Hye.

      The sentencing court, as the fact finder, has the duty “to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

the basic facts to the ultimate facts.” See United States v. Nieto, 60 F.3d 1464,

1469 (10th Cir. 1995) (quotation omitted). Credibility determinations are left to

its sound discretion. See United States v. Gobey, 12 F.3d 964, 967 (10th Cir.

1993). Moreover, the sentencing guidelines authorize the admission of out-of-

court statements at a sentencing hearing, so long as they have “sufficient indicia

of reliability to support [their] probable accuracy.” U.S. Sentencing Guidelines

Manual § 6A1.3(a). Similarly, when evaluating the quantity of drugs for which a

defendant may be held accountable under the guidelines, a district court may rely

on factually supported estimates.   United States v. Richards , 27 F.3d 465, 469

(10th Cir. 1994).




                                          -3-
      Here the district court was forced to resolve conflicting accounts about

drug quantity and to assess the credibility of Caster and his various

co-conspirators. At his plea hearing, for instance, Caster admitted to distributing

only seven pounds of methamphetamine, an amount less than five kilograms. Yet

Hye told the probation officer of his almost daily one-ounce purchases from

Caster, purchases that by themselves totaled just short of five kilograms. When

these purchases are added to additional transactions between Caster and his other

co-conspirators, the total figure, according to the testimony of the probation

officer, is 5.05 kilograms. Unable to substitute our judgment for that of the

sentencing court, and viewing the evidence in a light most favorable to the court’s

decision, we cannot say that its drug quantity finding was implausible or clearly

erroneous. Hence there was no abuse of discretion.


                               II. USE OF A MINOR

      Caster next objects to the sentence enhancement he received for using

a minor to advance his drug sales. The sentencing guidelines prescribe a

two-level increase “if the defendant used or attempted to use a person less than

eighteen years of age to commit the offense . . . .” U.S. Sentencing Guidelines

Manual § 3B1.4. This enhancement     applies only if the defendant directs, trains,

or in some other way affirmatively engages the minor participant in the crime of

conviction. Id., cmt. n.1. The evidence must show more than the mere fact that

                                         -4-
the defendant was involved in a drug conspiracy with a minor. See United States

v. Suitor, 253 F.3d 1206, 1210 (10th Cir. 2001).

      According to the presentence report, Caster arranged a sale of a quarter

pound of methamphetamine between sixteen-year-old Jesus Lopez and Zachary

Hye; Hye immediately gave more than an ounce of the drug to Caster. Later,

again according to the presentence report,     Caster “fronted” or sold on credit an

ounce and a half of methamphetamine to Lopez, who then sold it in smaller

quantities with the intent to pay Caster with the proceeds generated from those

sales. In other words, Caster helped orchestrate one large methamphetamine sale

by a minor and later served as that minor’s drug wholesaler. Based on this

evidence, we have no difficultly concluding that there is a sufficient basis to

sustain the district court’s finding that Caster “used” a minor as that term is

defined in § 3B1.4.

      Nonetheless, Caster claims that even if we accept the facts supporting the

use-of-a-minor enhancement, they are legally insufficient to constitute the “use”

of a minor, since “[n]o money ever exchanged hands.” Aplt.’s Br. at 14. We

disagree. 1 The amount of methamphetamine Caster fronted Lopez, more than an



1
       This is the one legal argument Caster offers. We review it de novo.
See United States v. Morales , 108 F.3d 1213, 1225 (10th Cir. 1997) (stating that
this court reviews the district court’s application of the sentencing guidelines
de novo).

                                             -5-
ounce, lends itself to the obvious inference not only that Caster believed that the

methamphetamine would be sold but also that he would profit from its sale. It

was not a gift; it was a business transaction.


                        III. POSSESSION OF A FIREARM

      The final enhancement Caster challenges is the two-level increase he

received because “a dangerous weapon . . . was possessed” during the drug

conspiracy. U.S. Sentencing Guidelines Manual § 2D1.1(b)(1). Insisting that the

government did not adequately link him to two guns discovered at a house he

owned, Caster argues that the district court erroneously imposed the firearm

enhancement on him. He rests heavily on the fact that he was not arrested at the

house where the guns were discovered. This point is all but irrelevant.

      Caster was arrested at a friend’s residence; he had been hiding there to

avoid outstanding warrants. The guns were seized from Caster’s house,

discovered in his bedroom along with drug scales, packaging materials, and

pay/owe sheets. The presentence report and the probation officer who prepared it

described the bedroom where the guns were found as a “stash room.”      See

Presentence Report at para. 16. The source of this information, co-conspirator

Hye, confirmed that he had seen Caster with the guns. Caster offered nothing to

undermine the government’s evidence. We conclude that the government has met

its burden to warrant the gun enhancement.

                                          -6-
     The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.


                                                  Entered for the Court



                                                  Wade Brorby
                                                  Senior Circuit Judge




                                       -7-
