                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                   December 12, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 05-2151
          v.                                      District of New M exico
 GA BRIEL DA VID G OM EZ,                          (D.C. No. 03-568 W J)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.




      Defendant-appellant Gabriel David G omez appeals from the district court’s

sentence of 360 months imposed for one count of conspiracy to distribute more

than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A) and fifty-three counts of money laundering in violation of U.S.C. 18


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
§§ 1956(a)(1)(B)(i) and 1957. M r. Gomez pleaded guilty to all counts without the

benefit of a plea agreement. W e have reviewed the issues presented on appeal

and find no error. Therefore we affirm.

                                   I. Discussion

      M r. Gomez appeals on three grounds. First, he claims that the district court

treated the sentencing guidelines as mandatory in violation of the Supreme

Court’s ruling in United States v. Booker, 543 U.S. 220 (2005), and erroneously

enhanced his sentence based on facts found by the judge using a preponderance of

the evidence standard. Second, he claims that the district court considered

evidence from his co-conspirator’s court proceedings to determine the drug

quantity involved in the conspiracy count. Third, he claims that the judge

improperly shifted the burden of proof by requiring him to disprove the

calculation of drug quantity estimated by the probation officer rather than

requiring the government to prove it.

      A. Application of the Sentencing G uidelines

      At the evidentiary hearing prior to sentencing, the government introduced

evidence that under M r. Gomez’s direction, approximately 40,000 pounds of

marijuana had been transported from M exico and distributed throughout the

United States. The government also presented evidence that M r. Gomez

possessed a firearm, obstructed justice by intimidating a witness, and lead a

criminal enterprise that involved more than five persons. The district court found

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that the government proved these facts by the preponderance of the evidence.

Calculation of a Guidelines sentence can include enhancements based on facts

proved by a preponderance of the evidence so long as the judge treats the

calculation as advisory rather than mandatory. United States v. M agallanez, 408

F.3d 672, 685 (10th Cir. 2005).

      M r. Gomez argues that the sentencing court could not enhance his sentence

using facts found by a preponderance of the evidence because it treated the

Guidelines as mandatory. But the district court’s conduct, as well as its words,

demonstrates that the court did not treat the G uidelines as mandatory. The court

began the sentencing proceeding by explaining that it would calculate the

sentence using the Federal Sentencing Guidelines and then determine whether the

sentence was reasonable using the sentencing factors found in 18 U.S.C. §

3553(a). The facts found at sentencing combined with M r. Gomez’s criminal

history resulted in an offense level of 44, which mandates life in prison under the

Guidelines. After considering the § 3553(a) factors, the sentencing court

determined that a life sentence would be unfair because it was the same sentence

imposed on M r. Gomez’s co-defendant who did not plead guilty, showed no

remorse, and denied his involvement in the criminal enterprise. By adjusting the

sentence according to the § 3553(a) factors, the court plainly treated the

Guidelines as advisory.




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      B. Reliance on O utside Proceedings

      M r. Gomez argues that the sentencing court abused its discretion by using

evidence presented in another proceeding to determine the amount of drugs

involved in the conspiracy. He points to the following statement by the district

judge at the sentencing hearing:

             Now, I’ll find, based on my involvement as the presiding judge in
      this case, on what’s been presented today, as w ell as w hat I’ve heard
      throughout the other defendants’ matters in this conspiracy case, that
      Gabriel Gomez was involved in trafficking of marijuana by laundering
      illegal proceeds by providing stash houses and providing instructions to
      other conspirators to further the trafficking and the distribution of
      marijuana. As a result of his conduct, he is accountable for the underlying
      marijuana offense levels pursuant to Guideline 2D1.1.

Appellant’s A pp. 0438-39. W e agree that it would be error for a district court to

base a factual finding of drug quantities on evidence presented in another case, to

which the defendant was not a party. W hen facts pertinent to sentencing are

disputed, the government bears the burden of proof by a preponderance of the

evidence, and the defendant has the right not only to know the evidence presented

against him but also to rebut or explain that evidence. U.S. Sentencing

Guidelines M anual § 6A1.3; see United States v. Keifer, 198 F.3d 798, 800 (10th

Cir. 1999); United States v. Peterman, 841 F.2d 1474, 1484 (10th Cir. 1988);

United States v. Shepherd, 739 F.2d 510, 515 (10th Cir. 1984). That is not

possible when the judge refers generally to evidence heard in another proceeding.




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      W e do not interpret the district court’s drug quantity finding in this case as

having been based on evidence at the co-conspirators’ trial. The judge referred to

that evidence in one sentence, in general reference to the nature of the

defendant’s conduct. The court then analyzed drug quantity, referring exclusively

to evidence presented in this case through testimony by FBI case agent M argaret

Russin. Based on documents introduced into evidence and interviews with co-

conspirators, the agent calculated that M r. Gomez was responsible for 40,024

pounds, or 18,155 kilograms, of marijuana, which is 8,155 kilograms more than

the G uideline required. The district court explicitly found that Agent Russin’s

methodology was reasonable and adopted her calculation of drug quantity in

determining the sentence. W e therefore reject M r. Gomez’s argument that the

drug quantity finding was based on improper consideration of extra-record

information.

      M r. Gomez makes a similar argument with respect to the district court’s

role adjustment finding, under U.S.S.G. § 3B1.1(a). The district court found that

M r. Gomez was one of two “kingpins” in the organization, and that he was

responsible for the “distribution end of the drug trafficking organization.”

Appellant’s App. 0440. Although the court did not specify the evidence on which

it based this finding, the record of the sentencing hearing is replete with

testimony regarding M r. Gomez’s role in the drug distribution operation. The




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court’s brief reference to the evidence in the co-conspirator’s trial is not sufficient

to demonstrate that the factual finding was improper.

      C. Burden Shifting

      M r. Gomez also argues that the sentencing court improperly shifted the

burden of proof of drug quantity from the government to him. In finding a base

offense level of 36, the sentencing court commented that to find a lower base

offense level the court would have to conclude that “Agent Russin’s calculations

were off by 8,155 kilograms, and there’s simply no evidence to suggest that.”

The sentencing court was not here requiring Gomez to prove that he conspired to

distribute less than the amount calculated by the government. Rather, it was

informing him that the government met its burden to prove the drug quantity

absent any further evidence introduced by the defendant.

      The judgment of the United States District Court for the District of New

M exico is AFFIRM ED.

                                                Entered for the Court,

                                                M ichael W . M cConnell
                                                Circuit Judge




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