                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 29 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 97-6053
v.                                               (W. District of Oklahoma)
                                                 (D.C. No. CR-96-27-2-A)
DANNY RAY HILL,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This court therefore

honors the parties’ requests and orders the case 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       This order and judgment is not binding precedent, except under the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.
      Appellant Danny Ray Hill was charged with (1) conspiracy to distribute

methamphetamine; (2) possession of methamphetamine with intent to distribute;

and (3) maintaining a place for the purpose of manufacturing, distributing, and

using methamphetamine. Hill pleaded guilty to possession of methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 841, and the other two counts

were dismissed. The district court sentenced Hill to 121 months of imprisonment

and five years of supervised release. The sentence was based on an adjusted

offense level of thirty-two.

      Hill appeals the district court’s calculation of his sentence on three

grounds. He contends that the district court erred in (1) determining the drug

quantities used to calculate the base offense level; (2) applying a two-level

enhancement for possession of a firearm; and (3) failing to resolve the conflict

between a five-year and ten-year mandatory minimum sentence.

I.    Drug Quantities Used to Calculate Base Offense Level

      At sentencing, the district court held Hill accountable for (1) 69 grams of

actual methamphetamine (with a marijuana equivalency of 690 kilograms) found

at a Rock Creek Road residence; (2) 57 grams of actual methamphetamine (with a

marijuana equivalency of 570 kilograms) producible from chemicals found in a

van Hill was driving; (3) 113 grams of actual methamphetamine (with a marijuana

equivalency of 1130 kilograms) producible from chemicals found at his Sandra


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Drive residence; and (4) 18 ounces of methamphetamine (with a marijuana

equivalency of 510.3 kilograms) based on the testimony of John Robert Laden. In

sum, the district court attributed a marijuana equivalency of 2900.3 kilograms to

defendant. Based on this marijuana equivalency, the district court held that Hill’s

base offense level was thirty-two under U.S.S.G. § 2D1.1.

      Hill specifically challenges all the above drug quantities except the

eighteen ounces of methamphetamine testified to by Mr. Laden. 1 In the

alternative, Hill claims the district court improperly held that the 69, 57 and 113

grams were “actual methamphetamine,” rather than methamphetamine, and the

base offense level calculated by the court was thus too high.

      At sentencing, the government has the burden of proving drug quantities

and types by a preponderance of the evidence. See United States v. Lande, 40

F.3d 329, 331 (10th Cir. 1994); United States v. Deninno, 29 F.3d 572, 580 (10th

Cir. 1994). A sentencing court may rely on estimates of drug quantities as long as

the estimates are “based on information with a minimum indicia of reliability.”

See Deninno, 29 F.3d at 578. This court reviews the sentencing court’s factual


      1
       In his argument, Hill does not appear to dispute the 18 ounces of
methamphetamine attributed to him based on the testimony of Mr. Laden, nor
does he appear to dispute its marijuana equivalency of 510.3 grams. Even if Hill
were to dispute this amount, Mr. Laden’s testimony regarding the approximate
amounts of methamphetamine he observed during drug transactions was sufficient
to support the district court’s attribution of 18 ounces of methamphetamine to
defendant.

                                         -3-
findings regarding the quantities of drugs attributable to a defendant for clear

error. See United States v. Hardwell, 80 F.3d 1471, 1497 (10th Cir. 1996), reh’g

on other grounds, 88 F.3d 897 (10th Cir. 1996); United States v. McKneely, 69

F.3d 1067, 1078 (10th Cir. 1995).

      The district court’s findings concerning the sixty-nine grams of

methamphetamine found at the Rock Creek Road residence are not clearly

erroneous. Michael Wayne Childers, a forensic chemist for the Oklahoma State

Bureau of Investigation, testified that methamphetamine was present in two

liquids found at the Rock Creek Road residence. Furthermore, he described how

the methamphetamine could be converted to powder from the liquids and testified

that sixty-nine grams of “actual methamphetamine” could be extracted from the

liquids. In light of Mr. Childers’ testimony, the sentencing court did not clearly

err in determining the above drug quantity.

      Because there was testimony that the amount was pure methamphetamine,

the court further did not clearly err in finding the sixty-nine grams constituted

“actual methamphetamine” with a marijuana equivalent of 690 kilograms. See

U.S.S.G. § 2D1.1 Application Note 10. In addition, despite Hill’s contention that

he was merely present at the Rock Creek Road residence and was not involved in

the manufacture of methamphetamine, there is sufficient basis in the record for

the district court to hold him accountable for the methamphetamine found at the


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residence: he was arrested at the Rock Creek Road residence; his fingerprints

were on laboratory equipment found at the residence; and testimony linked him

to the manufacture of methamphetamine with codefendant Leslie Monson.

      While defendant also challenges his accountability for and the quantity of

methamphetamine producible from the precursor chemicals found in his van and

at his Sandra Drive residence, this court need not consider these challenges

because the additional quantities would not affect Hill’s base offense level.

Together, the sixty-nine grams of actual methamphetamine found at the Rock

Creek Road residence and the eighteen ounces of methamphetamine testified to by

Mr. Laden produce a marijuana equivalence of 1200.3 kilograms (690 kilograms

+ 510.3 kilograms). Section 2D1.1(c) of the Sentencing Guidelines sets the base

offense level at thirty-two when the defendant is held accountable for “[a]t least

1,000 KG but less than 3,000 KG of Marihuana.” U.S.S.G. § 2D1.1(c). Hill’s

base offense level is thus thirty-two regardless of the methamphetamine

producible from chemicals found in his van and his Sandra Drive residence.

      Given Hill’s base offense level, the adjustments made to that level by the

district court, and his criminal history category, the Sentencing Guidelines

provide an incarceration period of 121-151 months. 2 See U.S.S.G. § Fifth



      2
       Hill’s only challenge to the adjustments made to his base offense level is
addressed below. Hill does not challenge his criminal history category.

                                         -5-
Amendment tbl. Hill received the lowest sentence within this range, 121 months.

As a consequence, he cannot argue that the additional methamphetamine

attributed to him negatively impacted his sentence. We therefore affirm the

district court’s determination of Hill’s base offense level.

II.      Enhancement for Possession of Firearm

         Hill contends the district court erred in applying a two-level enhancement

for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). The gun

was found during a traffic stop in February 1996. Hill argues the weapon

enhancement is inapplicable because he did not possess the firearm during the

crime for which he was convicted, possession of methamphetamine with intent to

distribute in September and November of 1995.

         This court reviews the trial court’s factual findings at sentencing for clear

error, while we review the trial court’s legal interpretation of a Sentencing

Guideline de novo. See United States v. Earls, 42 F.3d 1321,1326 (10th Cir.

1994).

         Section 1B1.3 of the Sentencing Guidelines requires courts to consider

relevant conduct when sentencing a defendant. See U.S.S.G. § 1B1.3. In United

States v. Roederer, 11 F.3d 973 (10th Cir. 1993), this court held that the relevant

conduct provision of the Sentencing Guidelines applies to weapons enhancements

under § 2D1.1(b)(1). See id. at 982. Thus, in evaluating whether the


                                            -6-
enhancement should be applied, the sentencing court looks not only at the offense

of conviction but also at all acts “‘that were part of the same course of conduct or

common scheme or plan as the offense of conviction.’” See id. (quoting U.S.S.G.

§ 1B1.3(a)(2)); see also United States v. Falesbork, 5 F.3d 715, 720 (4th Cir.

1993) (“Even when a guilty plea is entered on a single count of possession, the

court must nevertheless look to the entire relevant conduct in determining the

sentence. That conduct includes . . . . possession of a gun while engaging in drug

sales related to, though distinct from, the crime of conviction.” (citations

omitted)).

      In order to establish weapon possession, the government must prove by a

preponderance of the evidence “‘that a temporal and spatial relation existed

between the weapon, the drug trafficking activity, and the defendant.’” Roederer,

11 F.3d at 982 (quoting United States v. Eastland, 989 F.2d 760, 770 (5th Cir.

1993)). The necessary proximity is generally established by “‘evidence that the

weapon was found in the same location where drugs or drug paraphernalia are

stored or where part of the transaction occurred.’” Id. at 983 (quoting United

States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991)).

      Officer Robert Negri testified that during the February traffic stop, a

shotgun was found next to the driver’s seat of the van and the vehicle also

contained chemicals and equipment for manufacturing methamphetamine. The


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district court found the conduct of Hill and the van’s passengers was “closely

related to the offense of conviction,” and identified the intended sale of

contraband as a “common thread.” The court further found that Hill was, at a

minimum, in joint possession of the weapon and that, as driver of the van, Hill

was situated “better than anyone else to brandish the weapon.” Based on the

record, these findings are not clearly erroneous.

       Because the district court found the weapon was possessed during conduct

closely related to the offense of conviction, the weapon enhancement is

applicable. The government need not show the weapon was possessed during the

offense to which defendant pleaded guilty. Therefore, this court affirms the two-

level weapon enhancement.

III.   Conflict as to Mandatory Minimum Incarceration Period

       Hill entered his guilty plea to possession of methamphetamine with intent

to distribute, in violation of 21 U.S.C. § 841, on June 26, 1996. At that time, the

district court advised him the mandatory minimum sentence of incarceration for

his offense was five years and the maximum punishment that could be imposed

was forty years in prison, a fine, and supervised release. In December 1996, a

revised Presentence Investigation Report stated that the offense carried a

mandatory sentence of not less than ten years nor more than life imprisonment.

Hill claims that this change in the mandatory minimum and maximum terms of


                                         -8-
imprisonment is a result of this court’s decision in United States v. Richards, 87

F.3d 1152 (10th Cir.) (en banc), cert. denied, 117 S. Ct. 540 (1996). Richards

was decided after Hill pleaded guilty but prior to his sentencing. Based on these

facts, Hill makes two arguments: (1) the application of Richards is a violation of

the Ex Post Facto Clause of the Constitution and (2) the district court’s failure to

properly advise him of the mandatory minimum and maximum penalties violated

Rule 11(c) of the Federal Rules of Criminal Procedure and rendered his plea

involuntary.

      Defendant’s ex post facto argument is appropriately framed as a due

process issue.

      The Ex Post Facto Clause is a limitation upon the powers of the
      Legislature and does not of its own force apply to the Judicial Branch
      of government. Petitioner’s claims arise out of judicial interpretation
      of a statute, and therefore, his rights derive from the Due Process
      Clause. Because, however, an unforeseeable judicial enlargement of
      a criminal statute, applied retroactively, operates precisely like an ex
      post facto law, we apply ex post facto principles to decide the due
      process issue.

Lustgarden v. Gunter, 966 F.2d 552, 553-54 (10th Cir. 1992) (citations and

quotations omitted). The relevant inquiry for this court under due process

analysis is whether the change in this court’s interpretation of 21 U.S.C § 841 was

foreseeable. See id. at 554. If the interpretive change was foreseeable, it does

not violate defendant’s due process rights. See id. The fact that this court relied

on the “plain meaning” of the language in § 841 when it decided Richards is

                                          -9-
evidence of the decision’s foreseeability. See id.; see also Richards, 87 F.3d at

1157. We need not address the foreseeability of Richards, however, because we

conclude Richards had no impact on defendant’s sentencing.

      Richards held that liquid by-products containing methamphetamine

constitute a “mixture or substance” for purposes of 21 U.S.C. § 841(b) and,

therefore, the entire weight of the liquid by-products should be included in

determining a defendant’s statutory minimum and maximum sentences. See

Richards, 87 F.3d at 1157. Because Richards only addresses the determination of

statutory minimum and maximum sentences, it does not affect the calculation of

drug quantities under the Sentencing Guidelines, nor does it impact a defendant’s

sentence unless the applicable Sentencing Guideline range falls above the

statutory maximum or below the statutory minimum. Under the Sentencing

Guidelines, the district court properly determined that Hill had an adjusted total

offense level of thirty-two with an incarceration range of 121-151 months. Thus,

regardless of whether the statutory mandatory minimum was five years or ten

years, under the Guidelines the minimum sentence Hill could have received was

121 months, absent exceptional circumstances which are inapplicable here.

Because 121 months is greater than both the five and ten-year statutory mandatory

minimums under 21 U.S.C. § 841(b), Richards had no effect on Hill’s sentencing.




                                        -10-
Defendant’s ex post facto challenge to the applicability of Richards is therefore

irrelevant.

      Hill also asserts that the district court violated Rule 11(c) of the Federal

Rules of Criminal Procedure by failing to properly advise him of the accurate

minimum and maximum punishments at the time he entered his guilty plea. At

the plea hearing, the prosecutor informed the district court that the statutory

mandatory penalty was not less than five years nor more than forty years, but did

not provide the court with information regarding the attributable drug quantities

which ultimately determine the statutory penalty. Relying on the information

provided by the prosecutor, the district court then advised defendant of these

statutory minimum and maximum penalties. However, based on the quantity of

drugs attributed to Hill at the sentencing hearing, higher mandatory minimum and

maximum sentences were applicable.

      Rule 11(c) provides, in part, that

      [b]efore accepting a plea of guilty or nolo contendere, the court must
      address the defendant personally in open court and inform the
      defendant of, and determine that the defendant understands the . . .
      nature of the charge to which the plea is offered, the mandatory
      minimum penalty provided by law, if any, and the maximum possible
      penalty provided by law . . . .

F.R.C.P. 11(c). Thus, erroneous information regarding the minimum and

maximum mandatory sentences violates Rule 11(c).



                                           -11-
      It appears that Rule 11(c) was violated. A violation of Rule 11(c),

however, does not necessarily render defendant’s plea involuntary. Rule 11(h)

requires this court to apply a harmless error analysis, providing that “[a]ny

variance from the procedures required by [Rule 11] which does not affect

substantial rights shall be disregarded.” F.R.C.P. 11(h). Rule 11(h) requires a

defendant to demonstrate that knowledge of the omitted or inaccurate information

“‘would have changed his decision to plead guilty.’” United States v. Wright, 930

F.2d 808, 810 (10th Cir. 1991) (quoting United States v. Gomez-Cuevas, 917 F.2d

1521, 1527 (10th Cir. 1990)).

      The record contains no evidence Hill would have changed his plea had he

known that ten years was the mandatory statutory minimum. Hill was aware that

the Presentence Investigation Report calculated his mandatory statutory minimum

sentence at ten years. 3 At the sentencing hearing, his own counsel expressly

recognized that 121 months was the minimum applicable sentence. After

determining the drug quantities attributable to Hill, the district court took a recess

during which time defendant had an opportunity to talk to his counsel. When the

court reconvened, both defendant and his counsel were asked if they had anything


      3
        Hill made a written objection to the higher statutory minimum and
maximum sentences cited by the Presentence Investigation Report on the ground
that they were inconsistent with the statutory sentences he was advised of during
his plea hearing; however, he did not contend that these higher sentences rendered
his plea involuntary, nor did he move to withdraw his plea.

                                         -12-
to add after the court calculated the adjusted offense level; each responded in the

negative. Similarly, neither of them when asked offered a reason why the

sentence should not be imposed at that time. Thus, despite ample opportunities

during the sentencing hearing, Hill never contested the higher minimum sentence

on the ground that it rendered his plea involuntary, nor did Hill suggest that he

wished to withdraw his guilty plea.

      Further, Hill was aware at the time he pleaded guilty that his punishment

would be determined in accordance with the Sentencing Guidelines. Before

accepting Hill’s guilty plea, the district court properly instructed him that this

case was subject to the Federal Sentencing Guidelines. The sentence Hill actually

received, 121 months of incarceration followed by supervised release, was based

on the Sentencing Guidelines, and was not affected by the statutory minimum and

maximum penalties. Under the Guidelines, the minimum sentence Hill could have

received was 121 months. Because 121 months is greater than both the five and

ten-year statutory mandatory minimums under 21 U.S.C. § 841(b), the statutory

mandatory minimum had no impact on his sentence. Additionally, the 121 month

sentence is within the five to forty-year statutory range disclosed to




                                          -13-
Hill by the district court at the time he entered his guilty plea. As a consequence,

any violation of Rule 11(c) was harmless error.

      The judgment of the district court is AFFIRMED.

                                                ENTERED FOR THE COURT:



                                                Michael R. Murphy
                                                Circuit Judge




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