                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               August 5, 2005
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                     Nos. 01-8047 & 01-8084
                                                            (D. Wyoming)
CARLTON HUMPHREY,                                    (D.Ct. No. 97-CR-104-01-D)

       Defendant - Appellant.


                               ORDER AND JUDGMENT1


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and O'BRIEN, Circuit
Judge.


       This case is before us for a third time,2 this time on remand from the United States

Supreme Court for further consideration in light of United States v. Booker, -- U.S.--, 125

S.Ct. 738 (2005). See United States v. Humphrey, -- U.S.--, 125 S.Ct. 1043 (2005).

Convicted of drug trafficking, Carlton Humphrey contends the district court committed


       1
        This order and judgment is not binding precedent except under the doctrines of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.

       2
        See United States v. Humphrey, Nos. 01-8047 & 01-8084, 2004 WL 1059794
(10th Cir. May 12, 2004) (unpublished decision) (Humphrey II); United States v.
Humphrey, 208 F.3d 1190 (10th Cir. 2000) (Humphrey I).
constitutional Booker error when it enhanced his sentence based on its findings that his

relevant conduct involved 7.5 kilograms of methamphetamine and that he possessed a

dangerous weapon in connection with the offense. Exercising jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), we again AFFIRM.

       I. FACTUAL BACKGROUND

       We recount the pertinent facts of the case as stated in Humphrey I.3

              In the spring of 1997, Alvin Bauerlein was terminally ill with cancer.
       Mr. Bauerlein lived on Jefferson Street in Casper, Wyoming, with his then
       fourteen year old daughter, Judith. Nancy Regan also lived in his home,
       where she took care of Mr. Bauerlein and did cooking and housekeeping.
       Carlton Humphrey, a friend of Regan, stayed at the house at times and was
       a frequent visitor. One Yno Martin, a friend of Judith, also lived in the
       house for a few months in the summer of 1997, staying in the basement
       with Judith. Patricia Harris (later Patricia Bauerlein), known as Patty,
       became acquainted with Alvin Bauerlein through a cancer support group.
       Patty also eventually came to stay in the house on Jefferson Street.

               In late May of 1997, Mr. Bauerlein was gravely ill and in the
       hospital. On May 29 Alvin and Patty were married in the hospital room.
       Patty then moved into the house on Jefferson Street, where she lived for a
       few weeks. Alvin Bauerlein died five days after the marriage. A few days
       after that, Regan was appointed Judith's guardian.

                Judith Bauerlein had begun using methamphetamine in January or


       3
           As the court in Humphrey I stated in prefacing its statement of the facts:

       The following summary of the trial evidence is, for the most part, taken in
       the light most favorable to the jury verdicts; at times, however, points raised
       by the defense will be mentioned to provide context for the analysis which
       follows, even though the jury was not convinced by the defense evidence.

Humphrey I at 208 F.3d at 1195.

                                               -2-
February, 1997. Testifying for the prosecution at trial, Judith said that she
had been dealing methamphetamine during 1997, often having several
thousand dollars in cash or several ounces of methamphetamine at a time.
In mid-August, 1997 Judith was arrested and confined in a juvenile facility.
Sometime in August Patty Bauerlein contacted Chuck Davis, who was an
investigator with the Natrona County Sheriff's Department. Patty asked
Davis to meet her at her mother's residence, where she had been living since
late July, and he did so. Patty told Davis that [] Regan and Humphrey were
dealing methamphetamine and that she wanted to put a stop to it because
they were involving Judith in their activities. Patty continued to contact
Davis about once a week for the following few weeks.

       In late August, 1997 Patty contacted Davis with a specific tip. She
said that Humphrey and Regan were going to Cheyenne to make a drug buy
and gave a particular location where she believed they could be found.
Officers in Cheyenne were unable to locate [Humphrey and Regan] that
day, and Patty testified that she later learned [they] had gone to Denver
instead of Cheyenne that day. On September 5 Patty again called Davis and
reported that Humphrey had a large amount of methamphetamine in his
possession and was in Casper, probably driving a green pickup. Officers
were unable to find Humphrey that night.

       On the morning of September 6, 1997 Patty called Davis again. She
said that she and Judith were to meet Humphrey and Regan for breakfast at
the Flying J truck stop in Casper. Several officers gathered near the truck
stop and spotted [Humphrey and Regan] leaving in Humphrey's green
pickup. By this time, the police had determined that the pickup was
registered to Humphrey, that he was driving under suspension, and that
there was an outstanding warrant for his arrest. Police stopped the pickup
with Humphrey and Regan in it after it left the truck stop. As the pickup
was slowing down and pulling over, police saw defendant Regan ducking
down and moving as if she were moving something on the floorboard of the
pickup. When Humphrey produced his identification he was arrested on
the outstanding warrant. He was handcuffed and placed in a patrol car.
The officers searched Humphrey's pockets and found $3,492 in cash, as
well as a money order for $500.

       While Humphrey was being arrested and searched, another officer
asked Regan to get out of the pickup and talked with her. In the meantime,
other officers found a tan satchel [on] the floor of the pickup on the

                                     -3-
      passenger side. Opening the satchel, they found two large bags containing
      what they believed to be, and what was later proven to be,
      methamphetamine totaling over 600 grams. Regan was then arrested.
      Subsequent search revealed a small quantity of methamphetamine, about 3
      grams, in her purse . . . . She had only a small amount of cash. The pickup
      was impounded and taken to the police station, where it was thoroughly
      searched. Small additional amounts of drugs were found, along with some
      drug paraphernalia.

             Patty had also told Davis that Humphrey had left his Dodge
      automobile in the garage at Patty's mother's house, where she was staying.
      Immediately after the arrest of [Humphrey and Regan], the officers sought a
      search warrant for the Dodge. Patty, Judith, and Yno Martin had witnessed
      the arrests. They went from there to Patty's mother's house, where they
      destroyed small amounts of drugs, and Judith removed some photos from
      the Dodge. About forty- five minutes later, officers arrived to secure the
      location pending issuance of the requested search warrant.

              The warrant was issued and the Dodge was searched later that day.
      The trunk of the car contained, inter alia, another $4,000 in cash, a loaded
      pistol, and a notebook with handwritten numbers and notations. The
      notebook was admitted in evidence at trial, and was said in expert testimony
      to be a drug ledger. Patty Bauerlein identified the handwriting in the
      notebook as that of [] Regan.

Humphrey I, 208 F.3d at 1195-97. With respect to the Dodge automobile left at the

residence where Patricia Bauerlein was staying and later searched:

              Patty Bauerlein had testified that [Humphrey and Regan] had been
      gone for several days, having asked her to watch the house on Jefferson
      Street while they went out of town to buy drugs. Patty testified that they
      returned on September 5, 1997, arriving at her residence in the Dodge. The
      prosecution had already shown that the Dodge was registered to Humphrey.
      Patty testified that on arriving at her home, [Humphrey and Regan] took
      some things out of the Dodge, including some methamphetamine. Later,
      [Humphrey and Regan] took the methamphetamine with them when they
      left with Patty in the Dodge, eventually returning to Patty's house with the
      Dodge, which was parked in the garage, and Humphrey's pickup.


                                           -4-
Id. at 1210-11.

       II. PROCEDURAL BACKGROUND

       On January 30, 1998, a jury convicted Humphrey and his co-defendant, Nancy

Regan, of conspiracy to possess methamphetamine with intent to distribute, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 (Count I), and possession with intent to

distribute methamphetamine (and aiding and abetting the same) in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2 (Count II). See Humphrey I, 208 F.3d at

1195. The jury, however, made no quantity determination. See USSG §2D1.1(c)

(providing base offense levels according to drug quantity). Nor did it find Humphrey

possessed a dangerous weapon in connection with the offenses. See USSG §2D1.1(b)(1)

(providing a two level enhancement for possession of a dangerous weapon in connection

with an offense). Instead, the court made these two determinations at sentencing on

December 15, 1998.4 Based on its finding that Humphrey’s relevant conduct involved the

equivalent of 7,692 kilograms of marijuana (which included 7.5 kilograms of

methamphetamine), the court calculated a base offense level of 34 under §2D1.1(c)(3).5

       4
         The presentence investigation report (PIR) and the court applied the November 1,
1995 edition of the Guidelines Manual issued by the United States Sentencing
Commission. Unless otherwise noted, all references to the guidelines are to the 1995
edition.
       5
        In addition to the 7.5 kilograms of methamphetamine, the PIR and the evidence at
sentencing indicated Humphrey’s relevant conduct included amounts of amphetamine and
cocaine. Because more than one substance was involved in the offense, all amounts were
converted to their marijuana equivalencies for purposes of determining the base offense
level under USSG §2D1.1(c). See USSG §2D1.1, comment. (n.10 “Drug Equivalency

                                           -5-
It then increased the base offense level by two levels under §2D1.1(b)(1) based on its

finding that Humphrey possessed a dangerous weapon in connection with the offense.

The court also added two levels under USSG §3B1.4 for the use of a minor in

commission of the offense. With a criminal history category of III and a total offense

level of 38, the applicable guideline range was 292 to 365 months imprisonment for each

count. The court sentenced Humphrey under 21 U.S.C. § 841(b)(1)(B), a quantity

enhanced penalty provision,6 to 304 months on each count, to run concurrently.

       On appeal, we upheld the district court’s drug quantity determination and its

application of the dangerous weapon enhancement but found error in the court’s

imposition of the two-level enhancement under USSG §3B1.4 for use of a minor in

commission of the offense. We vacated Humphrey’s sentence and remanded for further

proceedings. See Humphrey I, 208 F.3d at 1210-11, 1213. The district court resentenced

Humphrey on October 4, 2001. It stood by its earlier findings as to drug quantity and

possession of a dangerous weapon and eliminated the §3B1.4 enhancement from its

calculation of the total offense level. With a revised total offense level of 36 and a

criminal history category of III, the applicable guideline range was 235 to 293 months.

The court finessed the Supreme Court’s intervening decision in Apprendi v. New Jersey,



Tables”).
       6
        21 U.S.C. § 841(b)(1)(B)(viii) provides for a penalty of not less than five years
and not more than forty years imprisonment in a case involving 50 grams or more of a
mixture or substance containing a detectable amount of methamphetamine.

                                             -6-
530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”) by resentencing Humphrey

under the non-quantity enhanced penalty provision contained in 21 U.S.C. §

841(b)(1)(C).7 See Humphrey II, 2004 WL 1059794 at **4 n.11. It sentenced Humphrey

to 240 months imprisonment on Count I and to 48 months imprisonment on Count II, to

run consecutively. See USSG §5G1.2(d) (providing for consecutive sentences under

defined circumstances). We affirmed. See Humphrey II. On remand from the Supreme

Court following the grant of his petition for writ of certiorari, see Humphrey, 125 S.Ct.

1043, Humphrey challenges his sentence on the ground the district court’s findings

relative to drug quantity and the dangerous weapon enhancement violate Booker. We

ordered supplemental briefing to address the impact of Booker on Humphrey’s appeal.

       III. DISCUSSION

       A. Standard of Review

       In Booker, the Court extended its ruling in Blakely v. Washington, 542 U.S. 296,

124 S. Ct. 2531 (2004) (invalidating Washington’s sentencing guidelines under the Sixth

Amendment)8 to invalidate the federal sentencing guidelines insofar as they were

       7
        21 U.S.C. § 841(b)(1)(C) provides for a penalty of not more than twenty years
imprisonment in a case where no specific quantity of controlled substance is established
for schedule I or II controlled substances.
       8
         In Blakely, the Court applied its decision in Apprendi, 530 U.S. at 490 (“Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

                                             -7-
mandatory. 125 S.Ct. at 745. The 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. The Court

concluded the guidelines would not offend the Constitution if advisory only. Id. at 749-

50. To this end, in the remedial portion of its opinion, the Court excised those provisions

mandating application of the guidelines. Id. at 756-57. The Court indicated its decision

was applicable to all cases, like this one, on direct review. Id. at 769.

       Applying Booker, we have stated:

       [T]here are two distinct types of error that a court sentencing prior to
       Booker could make. First, a court could err by relying upon judge-found
       facts, other than those of prior convictions, to enhance a defendant's
       sentence mandatorily. As Booker makes clear, the Sixth Amendment
       prohibits this practice. As a matter of convenience, we will refer to such an
       error as a constitutional Booker error. Second, a sentencing court could err
       by applying the Guidelines in a mandatory fashion, as opposed to a
       discretionary fashion, even though the resulting sentence was calculated
       solely upon facts that were admitted by the defendant, found by the jury, or
       based upon the fact of a prior conviction. While this type of sentence does
       not violate the Sixth Amendment, such a sentence is nonetheless



the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”) to invalidate Washington’s sentencing guidelines under the Sixth
Amendment. In Blakely, the sentencing court enhanced a standard sentence based on
facts neither admitted by the defendant nor proven to a jury beyond a reasonable doubt.
Even though the enhanced sentence did not exceed the statutory ceiling of imprisonment
for the offense, the Court invalidated it. Blakely, 124 S.Ct. at 2538. In doing so, the
Court clarified that “the statutory maximum for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant.” Id. at 2537 (quotation marks and emphasis omitted).

                                             -8-
       impermissible because the Court severed the portion of the Sentencing
       Reform Act that required the mandatory application of the Guidelines. We
       will refer to this second type of error as a non-constitutional Booker error.

United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en banc)

(quotation marks and citations omitted). Irrespective of the type of error involved,

Booker does not necessitate a remand for resentencing in all instances. Instead,

“reviewing courts [are] to apply ordinary prudential doctrines, determining, for example,

whether the issue was raised below and whether it fails the plain-error test.” Booker, 125

S.Ct. at 769 (quotation marks omitted).

       Indubitably, the district court in this case committed constitutional Booker error

when it enhanced Humphrey’s sentence based on its findings that Humphrey’s relevant

conduct involved 7.5 kilograms of methamphetamine and that he possessed a dangerous

weapon in connection with the offense. The Government concedes the point. The parties

differ, however, as to whether we ought to review for harmless or plain error. Humphrey

contends he preserved a Booker claim by raising an Apprendi objection at his

resentencing on October 4, 2001. At that time, Humphrey argued, correctly, that

Apprendi limited the court’s statutory sentencing authority to a maximum of 240 months

on each count. He also contended Apprendi, along with USSG §5G1.2(d) (providing for

consecutive sentences under defined circumstances), required concurrent sentences.

Significantly, Humphrey did not object to his sentence on the ground it was

unconstitutional for the district court to find, by a preponderance of the evidence, the


                                             -9-
facts necessary to support either its drug quantity or its weapon enhancement for its

calculation of his offense level under the guidelines. Thus, United States v. Windrix, 405

F.3d 1146, 1158 (10th Cir. 2005) (Booker claim preserved by Apprendi objection to

judge-found facts to support offense level enhancements), and United States v. Riccardi,

405 F.3d 852, 874 (10th Cir. 2005) (accord), which Humphrey cites in support of his

argument for harmless error review, are inapposite. While Booker is certainly distant

progeny of Apprendi, merely citing Apprendi in an objection that is not directed to the

unconstitutional practice identified in Booker (enhancing a sentence based on judicial

fact-finding pursuant to a mandatory guideline scheme) is insufficient to preserve a

Booker objection. Thus, we review Humphrey’s Booker claim for plain error.

       “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation

marks omitted). “We conduct this analysis less rigidly when reviewing a potential

constitutional error.” United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005)

(internal quotation marks omitted). On the other hand, we enjoy discretion to notice plain

error. See FED. R. CRIM. P. 52(b). In this case, there is no doubt the error is plain, and as

a result, the first two prongs of the plain error test are satisfied. See United States v.

Clifton, 406 F.3d 1173, 1181 (10th Cir. 2005) (“Non-constitutional and constitutional

Booker errors satisfy the first two prongs of the plain-error test.”). We thus limit our


                                              -10-
review to the third and, if necessary, the fourth prong of the plain error test.

       B. Third Prong – Substantial Rights

       “Satisfying the third prong of plain-error review--that the error affects substantial

rights--usually means that the error must have affected the outcome of the district court

proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation marks omitted). It is

the defendant’s burden to make this showing, even in a case of alleged constitutional

error. Id. at 733. “To meet this burden, the appellant must show a reasonable probability

that, but for the error claimed, the result of the proceeding would have been different.”

Id. (internal quotation marks omitted).

       In a case of constitutional Booker error, there are at least two ways a defendant
       can make this showing. First, if the defendant shows a reasonable probability
       that a jury applying a reasonable doubt standard would not have found the
       same material facts that a judge found by a preponderance of the evidence,
       then the defendant successfully demonstrates that the error below affected his
       substantial rights. This inquiry requires the appellate court to review the
       evidence submitted at the sentencing hearing and the factual basis for any
       objection the defendant may have made to the facts on which the sentence was
       predicated. Second, a defendant may show that the district court's error
       affected his substantial rights by demonstrating a reasonable probability that,
       under the specific facts of his case as analyzed under the sentencing factors of
       18 U.S.C. § 3553(a), the district court judge would reasonably impose a
       sentence outside the Guidelines range.

Dazey, 403 F.3d at 1175 (footnotes omitted).

       1. Whether jury would have found facts applying a reasonable doubt standard

       We first inquire whether there is a reasonable probability a jury, applying a beyond

a reasonable doubt standard, would not have found, as did the court applying a


                                             -11-
preponderance of the evidence standard, that Humphrey’s relevant conduct involved 7.5

kilograms of methamphetamine and that he possessed a dangerous weapon in connection

with the offense.

                Drug Quantity

       At sentencing on December 15, 1998, the district court applied a base offense level

of 34 based on Humphrey’s relevant conduct,9 which included 7.5 kilograms of


       9
           Application Note 12 to the commentary of USSG §2D1.1 provides:

       Types and quantities of drugs not specified in the count of conviction may
       be considered in determining the offense level. See §1B1.3(a)(2) (Relevant
       Conduct). Where there is no drug seizure or the amount seized does not
       reflect the scale of the offense, the court shall approximate the quantity of
       the controlled substance. In making this determination, the court may
       consider, for example, the price generally obtained for the controlled
       substance, financial or other records, [and] similar transactions in controlled
       substances by the defendant[.]

USSG §1B1.3(a) provides in part:

       Unless otherwise specified (I) the base offense level where the guideline
       specifies more than one base offense level . . . shall be determined on the
       basis of the following:

       (1)      (A)   all acts and omissions committed, aided, abetted, counseled,
                      commanded, induced, procured, or willfully cause by the
                      defendant; and

                (B)   in the case of a jointly undertaken criminal activity (a criminal
                      plan, scheme, endeavor, or enterprise undertaken by the
                      defendant in concert with others, whether or not charged as a
                      conspiracy), all reasonably foreseeable acts and omissions of
                      others in furtherance of the jointly undertaken criminal
                      activity,

                                             -12-
methamphetamine. See USSG §2D1.1(c)(3) (base offense level of 34 applies if offense

involves at least three kilograms but less than ten kilograms of methamphetamine). In so

concluding, the court relied on both the PIR and the testimony of Officer Chris Wenberg

of the Casper Police Department, lead officer in the case. In his testimony, Officer

Wenberg broke down the 7.5 kilograms (7,500 grams) of methampetamine as follows: (1)

655.17 grams seized from Humphrey’s pickup when he was arrested, (2) 2,014.10 grams

extrapolated from a drug ledger found later the same day in the trunk of Humphrey’s

Dodge automobile, (3) 1,356 grams which Judith Bauerlein testified she observed

Humphrey weigh on a triple beam scale he borrowed from her, (4) 452 grams which

Patricia Bauerlein testified she observed Humphrey purchase in June 1997, (5) 2,712

grams (six pounds) which Patricia Bauerlein claimed to have observed in Humphrey’s

possession on July 4, 1997, (6) 84.75 grams which Patricia Bauerlein testified Humphrey

purchased via three wire transfers to Colorado, and (7) 226 grams extrapolated from

nearly $8,000 in cash (including a $500.00 money order) seized from Humphrey’s

vehicles on the day of his arrest.



              that occurred during the commission of the offense of conviction, in
              preparation for that offense, or in the course of attempting to avoid
              detection or responsibility for that offense;

       (2)    solely with respect to offenses of a character for which §3D1.2(d)
              would require grouping of multiple counts, all acts and omissions
              described in subdivisions (1)(A) and (1)(B) above that were part of
              the same course of conduct or common scheme or plan as the offense
              of conviction[.]

                                           -13-
       In brief cross-examination, Humphrey’s counsel challenged Officer Wenberg’s

testimony concerning the 2,712 grams Patricia Bauerlein claimed to have observed in

Humphrey’s possession on July 4, 1997. He drew an admission from the officer that

Patricia Bauerlein never testified to this effect at trial, notwithstanding efforts by the

Government to elicit such testimony. Instead, according to Officer Wenberg, Bauerlein

only made the statement to the Government in an interview before trial. Counsel also

established that Officer Wenberg had not submitted the drug ledger for expert

handwriting analysis, nor did he have personal knowledge as to who made the entries in

the ledger. However, apart from challenging the two amounts included in Officer

Wenberg’s total calculation, as just described, counsel declined to call any witnesses or

offer any rebuttal argument to the Government’s claim that Humphrey’s relevant conduct

involved 7.5 kilograms of methamphetamine.10

       In his supplemental brief, Humphrey questions the credibility of the Government’s

witnesses.

       A review of the record provides no indication whether the jury, in any
       manner, believed the testimony of Patricia Bauerlein or any other
       government witness. Appellant was arrested with a bag containing
       approximately one pound of methamphetamine in his vehicle. Based on
       this evidence alone, it is not unrealistic to think the jury could convict
       Humphrey, without putting any stock in the testimony of Patricia Bauerlein


       10
         Prior to sentencing, in a letter to the United States Probation Office dated March
27, 1998, Humphrey objected to the PIR’s calculation of relevant conduct quantity on the
ground that only the methamphetamine seized in his vehicle when he was arrested
(655.17 grams) should be used in the calculation.

                                             -14-
       or any other witnesses proferred by the government.

(Appellant Supp. Br. at 9-10.) In particular, Humphrey challenges the reliability of

Patricia Bauerlein’s testimony as it relates to the identification of the handwritten entries

in the drug ledger and the alleged six pound methamphetamine transaction she claimed to

have witnessed on July 4, 1997.

       We are not persuaded by Humphrey’s arguments. First, his challenge to the

credibility of the Government’s witnesses is, for the most part, conclusory. Second, his

claim the jury might have convicted Humphrey based solely on his arrest and possession

of 655.17 grams of methamphetamine fails to take into account that in addition to a

conviction for possession with intent to distribute methamphetamine, Humphrey was also

convicted, along with co-defendant Regan, of conspiracy to possess methamphetamine

with intent to distribute. Our review of the record convinces us the testimony of the

Government’s witnesses, particularly that of Patricia Bauerlein, was both persuasive to

the jury and essential to the conspiracy conviction.

       Third, we adopt our reasoning in Humphrey I, in which Humphrey argued the

district court’s drug quantity determination was clearly erroneous, specifically its

inclusion of the 2,014.10 grams extrapolated from the drug ledger and the 2,712 grams

(six pounds) which Patricia Bauerlein claimed to have observed in Humphrey’s




                                             -15-
possession on July 4, 1997.11 Even excluding from the total calculation the 2,014.10

grams extrapolated from the drug ledger, we noted in Humphrey I that the evidence

presented at trial was sufficient to establish that Humphrey possessed at least one pound

(453.6 grams12) of methamphetamine on July 4, 1997:

       The government candidly admits that the source of the six pound estimate is
       uncertain. Officer Wenberg testified that he believed that Patty Bauerlein
       had given this information during the investigation. At trial, however, Patty
       had testified that she could not recall the amount involved in that particular
       transaction, but that she did recall that on or near that date a large group of
       people came to the house on Jefferson Street and went into the bedroom
       that had been Mr. Bauerlein's. She went into the room after the others had
       left and saw foil wrapped packages, one of which was opened and appeared
       to be methamphetamine. She also said that Humphrey told her that it was
       “crank,” a slang term for methamphetamine, and “[t]hat it was a lot in terms
       of pounds.”

Id. at 1210 (record references omitted) (emphasis added). “[T]he unchallenged evidence,

plus one pound attributed to the July 4, 1997, transaction, is sufficient to establish the

threshold quantity of three kilograms on which Defendants' offense levels were based.”

Id. See USSG §2D1.1(c)(3) (base offense level of 34 if offense involves at least three

kilograms but less than ten kilograms of methamphetamine). The court’s reasoning

enjoys no less resonance in our Booker analysis.

       For the foregoing reasons, and after a careful review of the entire record, we

conclude there is not a reasonable probability a jury, applying a beyond a reasonable


       Humphrey did not challenge the remaining amounts included in Officer
       11

Wenberg’s total calculation of 7,500.02 grams. See Humphrey I, 208 F.3d at 1209.
       12
            See USSG §2D1.1, comment. (n.10 “Drug Equivalency Tables”).

                                             -16-
doubt standard, would not have found, as did the court applying a preponderance of the

evidence standard, that Humphrey’s relevant conduct included at least three kilograms of

methamphetamine.

             Possession of a Dangerous Weapon

      The court enhanced Humphrey’s base offense level two levels for possession of a

dangerous weapon in connection with the offense. See USSG §2D1.1(b)(1) (“If a

dangerous weapon (including a firearm) was possessed, increase by 2 levels). The

commentary to the guideline provides that “[t]he enhancement for weapon possession

reflects the increased danger of violence when drug traffickers possess weapons. The

adjustment should be applied if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense.” USSG §2D1.1, comment. (n.3).

“‘Offense’ means the offense of conviction and all relevant conduct under §1B1.3

(Relevant Conduct) unless a different meaning is specified or is otherwise clear from the

context.” USSG §1B1.1, comment. (n.1(H)).

      At the sentencing hearing on December 15, 1998, Officer Wenberg testified that a

loaded Ruger .22 caliber revolver was seized from the trunk of Humphrey’s Dodge

automobile at the same time the drug ledger was seized. Humphrey’s counsel did not

cross-examine Officer Wenberg on his weapon testimony; nor, as noted in our drug

quantity discussion, did he call any witnesses. He confined his objection to the weapon

enhancement to a perfunctory argument that the weapon was not connected to the offense


                                           -17-
by virtue of the fact that it was not seized from Humphrey or his pickup at the time of his

arrest. In his supplemental brief, Humphrey repeats this objection and adds, as he did

with respect to the quantity enhancement, that the Government’s witnesses were not

credible. He also claims three of the witnesses, Judith Bauerlein, Patricia Bauerlein and

Yno Martin had the opportunity to plant the weapon in his vehicle.

       We need not repeat our discussion of the credibility of the Government’s

witnesses. As to whether Judith Bauerlein, Patricia Bauerlein or Yno Martin planted the

weapon in Humphrey’s vehicle, the proposition lacks evidentiary support. The key issue

in the application of the enhancement is the connection of the weapon with the offense.

Again, we rely on our reasoning in Humphrey I. In addition to the fact the Dodge

automobile was registered to Humphrey, and

       [a]lthough no drugs were found in the trunk of the Dodge, other items
       connected with the conspiracy were, including the drug ledgers discussed
       above. Clearly, Patty Bauerlein's testimony . . . tied the Dodge to a drug
       buying trip which was completed only one day before the gun was found in
       the car's trunk.

Humphrey I, 208 F.3d at 1211. “The government's evidence was sufficient to meet its

burden, and Humphrey introduced no evidence to show that it was improbable that the

gun was connected to the conspiracy.” Id. For like reasons, we conclude there is not a

reasonable probability a jury, applying a beyond a reasonable doubt standard, would not

have found, as did the court applying a preponderance of the evidence standard, that

Humphrey possessed a dangerous weapon in connection with the offense.


                                           -18-
       2.     Whether the district court would reasonably impose a sentence outside the
              guidelines range if analyzed under the sentencing factors of 18 U.S.C. §
              3553(a)

       Nor has Humphrey met his burden to demonstrate a reasonable probability that,

under the specific facts of his case as analyzed under the sentencing factors of 18 U.S.C.

§ 3553(a),13 the district court would have reasonably imposed a sentence outside the


       13
              Factors to be considered in imposing sentence. The court
              shall impose a sentence sufficient, but not greater than
              necessary, to comply with the purposes set forth in paragraph
              (2) of this subsection. The court, in determining the particular
              sentence to be imposed, shall consider –

                     (1)    the nature and circumstances of the offense and the
                            history and characteristics of the defendant;

                     (2)    the need for the sentence imposed –

                            (A)    to reflect the seriousness of the offense, to
                                   promote respect for the law, and to provide just
                                   punishment for the offense;

                            (B)    to afford adequate deterrence to criminal
                                   conduct;

                            (C)    to protect the public from further crimes of the
                                   defendant; and

                            (D)    to provide the defendant with needed educational or
                                   vocational training, medical care, or other correctional
                                   treatment in the most effective manner;

                     (3)    the kinds of sentences available;

                     (4)    the kinds of sentence and the sentencing range established for
                            –

                                           -19-
guideline range under a post-Booker advisory regime. The court’s comments in rendering

sentence evidence the contrary:

             I understand that you have a drug addiction, and that alone warrants
      the Court’s determination that I will not go to the high end of the guideline
      as the United States has requested, but that doesn’t mitigate your conduct.
      That doesn’t absolve you from really what was a very active life of crime
      involving thousands of dollars of drugs in this community.

             ...

             I’ll say to you I have often said that I thought the guidelines that a
      court has to impose during a sentencing of a criminal sentence in a drug
      case are Draconian, far beyond what is necessary; but once in a while there
      comes a case where it seems to me that the guidelines are just about right,
      and sadly for you, Mr. Humphrey, my conclusion is that this is one of those
      cases.

(01-8047 R. Vol. 5 at 43.) When he was resentenced, the court amplified on its earlier

comments:




                             (A)    the applicable category of offense committed by the
                                    applicable category of defendant as set forth in the
                                    guidelines . . . .

             (5)       any pertinent policy statement –

                             (A)    issued by the Sentencing Commission . . . .

                       (6)   the need to avoid unwarranted sentence disparities among
                             defendants with similar records who have been found guilty
                             of similar conduct; and

                       (7)   the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

                                             -20-
               It is apparent from the history, this defendant has made a living as a
       drug dealer at least for some time in his life. Prior to his apprehension,
       there is nothing really that would suggest that he would attempt to withdraw
       from this kind of a life-style and criminal activity. He’s participated in
       substance abuse treatments, I think, on two occasions and failed. [The]
       Court recognizes that this individual is probably in the drug trade to support
       his habit, but the fact of the matter is he’s become a menace to society and
       shouldn’t be overlooked. Drugs were found in the car in which he was
       traveling on the day he was arrested. Sentence on the low end of the
       guideline would seem imprudent.

(01-8084 R. Vol. 19 at 11.) We identify no evidence in the record to counterbalance the

court’s comments or to suggest it would have sentenced differently in the absence of the

provision mandating application of the guidelines.

IV. CONCLUSION

       Based on the above, we conclude the constitutional Booker error at sentencing did

not affect Humphrey’s substantial rights under the third prong of the plain error test. This

being so, we need not consider whether he satisfies the fourth prong of the test. We

determine Humphrey has failed to satisfy the plain error test. Accordingly, we

REINSTATE our prior decision in Humphrey II and AFFIRM Humphrey’s sentence.



                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




                                            -21-
