                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                        UNITED STATES COURT OF APPEALS                    January 6, 2012

                                                                       Elisabeth A. Shumaker
                                   TENTH CIRCUIT                           Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.
                                                            No. 11-4004
 ANTHONY TERRELL RAY                              (D.C. No. 2:09-CR-00888-TC-1)
 FERGUSON,                                                   (D. Utah)

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before LUCERO, EBEL and GORSUCH, Circuit Judges.




      *
         This Order and Judgment is not binding precedent except under the doctrines of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 and 10th Cir. R. 32.1.

       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) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
       In this direct criminal appeal, Anthony Terrell Ray Ferguson, having pled guilty to

conspiracy to distribute methylenedioxymethamphetamine (MDMA) in violation of 21

U.S.C. § 846, challenges his sentence on four different grounds, arguing in each that his

sentence was procedurally unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291,

we AFFIRM.

                                    BACKGROUND

       In December 2008, the Drug Enforcement Administration (DEA) launched an

investigation into the present offense after a traffic stop in Nevada yielded a large amount

of MDMA. The passenger in the car told authorities that the driver was a partner with

Mr. Ferguson in a MDMA-trafficking scheme that involved transporting thousands of

pills containing MDMA (commonly known as “ecstasy”) from California to Utah. Soon

thereafter, the DEA separately interviewed two confidential informants who had been

arrested with MDMA and who indicated that Mr. Ferguson was the head of an

organization that distributed MDMA to the Salt Lake City area after receiving shipments

of the pills from Nevada, California, and Washington (state). Mr. Ferguson was arrested

in Salt Lake City in November 2009 when he attempted to pick up a vehicle, registered to

him, that was in the DEA’s possession after highway patrolmen stopped the vehicle and

found thousands of pills of MDMA.

       Mr. Ferguson was charged in November 2009 with conspiracy to distribute

MDMA in violation of 21 U.S.C. § 846 (Count 1); distribution of N-benzylpiperazine

(BZP) in violation of 21 U.S.C. § 841(a)(1) (Count 2); and distribution of MDMA (Count
                                             2
3). He pled guilty to Count 1 in April 2010. Mr. Ferguson’s presentence investigation

report (PSR) calculated that 97,148 MDMA pills were attributable to Mr. Ferguson for

the purposes of computing his offense level under the Federal Sentencing Guidelines

(Guidelines). However, based on the testimony of DEA Special Agent Mark Bacon at

the sentencing hearing on December 8, 2010, the district court found that approximately

110,000 to 112,000 pills were attributable to Mr. Ferguson. The court determined Mr.

Ferguson’s offense level to be 37 and his criminal history category to be VI, which

rendered an advisory sentencing range of 360 months to life under the Guidelines.

However, the statutory maximum for Mr. Ferguson’s offense was only 240 months.

Ultimately, after considering the applicable sentencing factors and Mr. Ferguson’s

personal situation, the district court sentenced Mr. Ferguson to a term of 180 months’

imprisonment. This appeal followed.

      Additional facts will be set forth below as necessary.

                                     DISCUSSION

                                 I. Standard of review

      As a general matter, we review the district court’s sentencing decisions for an

abuse of discretion, asking whether or not the decisions were reasonable. Gall v. United

States, 552 U.S. 38, 46 (2007); United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.

2009). Reasonableness in sentencing contains a procedural prong as well as a substantive

prong. United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). Procedural

reasonableness “focuses on whether the district court committed any error in calculating
                                            3
or explaining the sentence.” Id. (citing Gall, 552 U.S. at 50). Potential procedurally

unreasonable errors include “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the [18

U.S.C.] § 3553(a) [sentencing] factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence—including an explanation for

any deviation from the Guidelines range.” Gall, 552 U.S. at 51.

       In determining whether the district court acted reasonably, “[w]e review the

district court’s legal conclusions regarding the Guidelines de novo and its factual findings

for clear error.” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008).

Under this standard, “[w]e will not disturb a factual finding unless it has no basis in the

record.” United States v. Beltran, 571 F.3d 1013, 1021 (10th Cir. 2009) (quotation marks

omitted). “[I]f the district court errs in applying the Guidelines, we must remand unless

the error is harmless.” United States v. Townley, 472 F.3d 1267, 1276 (10th Cir. 2007).

                   II. The number of pills attributable to defendant

       A defendant’s base offense level varies depending on the volume of drugs

associated with his offense of conviction. See U.S.S.G. § 2D1.1. A sentencing court’s

consideration of drug volume is not limited to amounts actually seized from defendants.

Rather, where “the amount seized does not reflect the scale of the offense, the court shall

approximate the quantity of the controlled substance,” id., cmt. n.12, estimating the

amount of attributable drugs on sufficiently trustworthy evidence. In this case, Mr.

Ferguson argues that the district court erred in finding that 110,000 to 120,000 pills of
                                              4
MDMA were attributable to Mr. Ferguson for sentencing purposes. Mr. Ferguson argues

that evidence upon which the court’s finding was based—namely, testimony by Special

Agent Bacon regarding evidence of drug quantities other than those seized directly from

Mr. Ferguson—was unreliable as uncorroborated, inconsistent, and coming from non-

credible alleged co-conspirators.

       We review the district court’s factual findings for clear error. Munoz-Nava, 524

F.3d at 1146. A sentencing judge may properly consider hearsay evidence as long as

such evidence is sufficiently reliable. U.S.S.G. § 6A1.3(a) (“When any factor important

to the sentencing determination is reasonably in dispute . . . the court may consider

relevant information without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has sufficient indicia of reliability to

support its probable accuracy.”); Townley,472 F.3d at 1276 n.4. Also, “[c]redibility

determinations are within the sound discretion of the trial judge,” such that this Court will

not second guess the district court’s findings unless they were clearly erroneous. United

States v. Gobey, 12 F.3d 964, 967 (10th Cir. 1993).

       At the sentencing hearing in this case, Special Agent Bacon submitted to the court

that 121,793 pills were attributable to Mr. Ferguson—the sum of multiple transactions

that the DEA had learned of principally through the three informants involved in Mr.

Ferguson’s distribution scheme. Also before the district court were the DEA’s

investigative reports, and transcripts of the informants’ grand jury testimony and of

phone calls relating to controlled purchases of MDMA from Mr. Ferguson. The court
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“found the evidence as presented by Special Agent Bacon to be credible,” emphasizing

“the degree of independence of the various [confidential informants] whose evidence

[the] special agent used to make his calculations” and finding “that there was

corroboration in the telephone calls and in the fact of grand jury testimony.” (ROA Vol.

III at 45.)

        Having reviewed the record and keeping in mind the substantial deference we give

with respect to findings of fact and credibility, we cannot say that the district court clearly

erred in attributing to Mr. Ferguson the amounts to which Special Agent Bacon testified.

We disagree with Mr. Ferguson’s assertion that the informants’ information was not

reliable. Rather, we agree with the district court’s findings of sufficient credibility and

corroboration among the informants, and we determine that the “discrepancies” noted by

Mr. Ferguson in his reply brief are either non-existent (i.e., some are not inconsistent but

simply more precise) or immaterial. The district court’s findings were not “without

factual support,” and we are not “left with the definite and firm conviction” that the court

erred. United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005) (quotation marks

omitted). We therefore discern no procedural error with the respect to the number of pills

attributed to Mr. Ferguson at sentencing.

                           III. The amount of MDMA per pill

        Since a defendant’s base offense level varies with the volume of drugs associated

with his offense of conviction, the district court at an MDMA sentencing must determine

the quantity of MDMA in each pill in order to calculate the total amount attributable to
                                              6
the defendant. See U.S.S.G. § 2D1.1. In cases where the number of pills has been

established but their weight is unknown, the Guidelines supply a rebuttable presumption

that each pill contains 250 mg of MDMA. See id., cmt. n.11. Mr. Ferguson argues that

the district court erred by applying the 250 mg presumption to the calculated number of

pills. He asserts that one test result showed that some of the seized pills weighed only

between 49.2 mg and 131 mg. Mr. Ferguson also notes that law enforcement “would

have lab data” on the weight of confiscated pills. (Aplt. Br. at 23.) However, the only

thing rebutting the Guidelines’ 250-mg presumption was Mr. Ferguson’s attorney’s

assertion at sentencing proceedings that lab results showed that some pills weighed

between 49.2 mg and 131 mg (ROA Vol. 2 at 29); there was no actual evidence of that in

the record. Mere assertions by counsel do not constitute “more reliable . . . case-specific

information,” U.S.S.G. § 2D1.1, cmt. n.11, that would rebut the Guidelines’ presumption.

Cf. United States v. Atencio, 435 F.3d 1222, 1237 (10th Cir. 2007) (approving of the jury

instruction that “statements, objections, or arguments made by the lawyers are not

evidence”). Thus, it was not unreasonable for the district court to apply the Guidelines’

250-mg presumption.

            IV. Conversion of MDMA to marijuana under the Guidelines

       Under the Guidelines, quantities of many drugs, including MDMA, are converted

into “equivalent” quantities of marijuana for the purpose of calculating a defendant’s

offense level. See U.S.S.G. § 2D1.1. The conversion ratio for MDMA is 1:500, such

that the Guidelines consider 1 gram of MDMA to be equivalent to 500 grams of
                                             7
marijuana for the purpose of establishing drug quantity with respect to offense levels.

Id., cmt. n.10(E).1 Mr. Ferguson argues that the district court’s application of the 1:500

ratio was unreasonable in light of empirical data suggesting that the ratio is unduly harsh

and otherwise lacks justification. However, while Mr. Ferguson is correct that a

sentencing judge who disagrees with the policy or harshness of the Guidelines’ advisory

conversions may deviate from them without necessarily abusing his or her discretion, by

no means does it follow that it is an abuse of discretion for a judge to adhere to the

equivalency table, policy critiques notwithstanding. Indeed, “a sentence is not rendered

unreasonable merely because of a district court’s refusal to deviate from the advisory

[G]uideline range based on disagreements with the policies underlying a particular

Guideline provision.” United States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007)

(quotation marks omitted); see also United States v. Alvarez-Bernabe, 626 F.3d 1161,

1166 (10th Cir. 2010). We therefore find no abuse of discretion in the district court’s

application of the Guidelines’ advisory 1:500 MDMA-to-marijuana conversion ratio in

this case.

               V. Calculation of defendant’s criminal history category

        Finally, Mr. Ferguson challenges the district court’s determination that his

criminal history category was VI under the Guidelines. More specifically, he argues that

he should not receive three criminal history points for each of his two convictions for

1
 Under the current version of the Guidelines, the drug equivalency table is subsection D
of Application Note 10 to U.S.S.G. § 2D1.1. Mr. Ferguson was sentenced under the 2010
Guidelines.
                                              8
separate armed robberies at age sixteen, reasoning that the two offenses were essentially

the same crime spree. Mr. Ferguson notes that had he received a total of only three

criminal history points for those two convictions, his total number of criminal history

points would have twelve, rather than fifteen, and his criminal history category would

have been V instead of VI.

       Mr. Ferguson never raised this objection before the district court. First, in his

sentencing memorandum, Mr. Ferguson argued that he was not a career offender under

U.S.S.G. § 4B1.1(a) but failed to argue that his PSR had incorrectly counted his criminal

history points with respect to his former convictions. (ROA Vol. I at 27-38.) Likewise,

at his sentencing hearing, in the context of addressing the application of the career-

offender guideline, he conceded that his criminal history category was, as the judge put it,

otherwise “already” category VI. (ROA Vol. II at 13.) Mr. Ferguson thus either has

waived this objection, if by his endorsement of the district court’s conclusion he

“intentionally relinquished or abandoned” the issue below, in which case this Court will

not review it at all; or he has forfeited it, if the theory merely “wasn’t raised” below, in

which case it is subject to review for plain error on appeal. See United States v.

Vasquez-Alcarez, 647 F.3d 973, 976 (10th Cir. 2011).

       Mr. Ferguson arguably waived the issue when his counsel agreed with the

sentencing judge that his criminal history category was already VI, independent of the

career-offender guideline. However, assuming arguendo that the issue was only

forfeited, Mr. Ferguson’s objection clearly fails our plain error standard, under which he
                                               9
must show “(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.” Id.

(quotation marks omitted). In this case, no plain error occurred because the district court

was correct to count separately Mr. Ferguson’s two robbery convictions. The Guidelines

instruct that where, as with Mr. Ferguson’s two robberies, there was no intervening

arrest, “prior sentences are counted separately unless (A) the sentences resulted from

offenses contained in the same charging instrument; or (B) the sentences were imposed

on the same day.” U.S.S.G. § 4A1.2(a)(2). In this instance, Mr. Ferguson’s two robbery

convictions were not charged in the same instrument (they were different cases in

different state courts), and the respective sentences were imposed roughly six months

apart. (ROA Vol. 3 at 95-96.) Accordingly, the district court committed no error in

determining Mr. Ferguson’s criminal history category.

                                      CONCLUSION

       For the foregoing reasons, we AFFIRM the district court.


                                           ENTERED FOR THE COURT



                                           David M. Ebel
                                           Circuit Judge




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