                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 15 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITE STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-3128
                                               (D.C. No. 98-CR-40096-01-DES)
    PETER PAUL CASTRO,                                    (D. Kan.)

                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 that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered 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      This order and judgment is not binding precedent, except under the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.
      Defendant Peter Paul Castro appeals his seventy-eight month sentence

imposed upon the court’s finding that his relevant conduct encompassed sales of

ten pounds of amphetamine. We affirm.

      On June 29, 1998, drug dealer Steve Simmons was arrested with slightly

less than a pound and a half of a substance believed by Simmons to be

methamphetamine. Subsequent testing revealed that the substance was actually

amphetamine. On June 30, 1998, based on information provided by Simmons,

defendant was arrested on charges of conspiring with Simmons to supply him with

methamphetamine and with possession of amphetamine. When Simmons was

interviewed in October 1998 by Kansas Bureau of Investigation Special Agent

Kathy Bottorf, he told her that he sold methamphetamine for Castro; that he

would generally obtain two or more ounces from Castro; that he obtained

methamphetamine between a couple of times a week and a couple of times a

month; and that he estimated that he had received approximately ten pounds of

methamphetamine from Castro over time. He gave consistent testimony at a

hearing before the grand jury that indicted Castro.

      Castro eventually pled guilty to one count of conspiracy to distribute

amphetamine in return for the government’s promise to dismiss the original

charges; to limit its evidence of relevant conduct to no more than ten pounds of

amphetamine; to recommend a three-level downward adjustment for acceptance of


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responsibility; and to refrain from objecting to defendant’s motion for release

pending sentencing. Defendant objected both to the presentence report

recommendation that he be held accountable for ten pounds of amphetamine, and

to testimony at the sentencing hearing regarding the quantity that would be

counted as relevant conduct.

      Simmons testified at the sentencing hearing, but stated that he could not

remember many of the statements that he allegedly made to Special Agent

Bottorf, and that some of the statements were incorrect. He did, however,

remember stating that the total amount of drugs received from defendant was

approximately ten pounds, and testified at the hearing that the actual amount

could have been anywhere from three to ten pounds. See R., Vol. III at 27

(estimating amount as five to ten pounds, then three to ten pounds); at 30-31

(estimating amount as eight to ten pounds overall). He also testified that he had

reason to fear that his testimony against Castro would endanger his wife and

children. Special Agent Bottorf testified at the hearing, stating that when

Simmons gave his statements he appeared lucid and coherent and did not appear

to be under the influence of drugs. The district court found Simmons’ testimony

regarding the amount of drugs involved to be credible and sentenced defendant

based on relevant conduct encompassing ten pounds of amphetamine.




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      On appeal, defendant argues that Simmons’ testimony was too unreliable to

support the court’s sentence because Simmons was an addict and an interested

witness, he was under the influence of drugs when he made the statements to

Special Agent Bottorf, his hearing testimony was contradictory, and his memory

was impaired by years of drug abuse. Defendant also argues that the standard for

determining relevant conduct should be by clear and convincing evidence, based

on the policies set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000).

      We note initially that the Supreme Court’s decision in Apprendi is not

relevant to this case. Apprendi applies when a defendant is sentenced beyond the

ten-year statutory maximum, which did not occur here. Pursuant to Tenth Circuit

authority, relevant conduct need only be proved by a preponderance of the

evidence. United States v. Fortier, 180 F.3d 1217, 1225 (10th Cir. 1999). We

review the district court’s determination of the amount of drugs to be attributed to

defendant for clear error, giving deference to the court’s credibility

determinations. See United States v. Hooks, 65 F.3d 850, 854 (10th Cir. 1995).

“We will not disturb a district court’s factual finding [regarding drug quantity]

unless it has no support in the record or, after reviewing all the evidence, we are

firmly convinced that an error has been made.” Id. (quotations omitted).

      Defendant’s arguments go to the weight of the evidence, which was

determined by the district court after a hearing. The record contains sufficient


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evidence to support the district court’s determination that Simmons’ estimate of

ten pounds of drugs was credible and reliable, including Simmons’ consistent

testimony to Special Agent Bottorf and the grand jury; his estimate at the hearing

that the amount could have been up to ten pounds; his testimony at the hearing

that he was not under the influence of drugs when he met with Special Agent

Bottorf; the special agent’s testimony that Simmons was lucid and coherent at his

interview; Simmons’ confirmable information that defendant supplied him with

the drugs; and the possibility that Simmons was reluctant to testify against

defendant at the hearing because he feared for his family. On this record we will

not disturb the district court’s credibility determination. We therefore conclude

that the court did not clearly err in accepting Simmons’ ten-pound estimate for

sentencing purposes. See id.

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

is AFFIRMED.



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




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