                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS                  June 28, 2010
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
 v.                                                     No. 09-3215
                                             (D.C. No. 2:07-CR-20065-JWL-2)
 EDWARD MENDEZ,                                         (D. Kansas)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Edward Mendez pleaded guilty in the United States District Court for the

District of Kansas to one count of possession of cocaine with intent to distribute

and one count of conspiracy (from December 1, 2006, through March 9, 2007) to

possess cocaine with intent to distribute. See 21 U.S.C. §§ 841, 846. He was

sentenced to 240 months’ imprisonment; but on appeal the government admitted



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
error and we remanded for resentencing. See United States v. Mendez, 319 F.

App’x 739, 740–41 (10th Cir. 2009) (unpublished). Mr. Mendez now appeals

from his revised sentence of 180 months, claiming errors related to the district

court’s use of uncharged conduct to enhance his sentence. We affirm.

I.    BACKGROUND

      In sentencing Mr. Mendez, the district court attributed to him 4½ pounds of

a methamphetamine mixture that was 41% pure. His appeal focuses on the use of

this methamphetamine in computing his offense level under the United States

Sentencing Guidelines. The methamphetamine was attributed to him based on the

sentencing-hearing testimony of Fernando Cardenas-Rangel, who said that he had

bought five or more pounds of the drug from Mr. Mendez between the summer of

2006 and October 30, 2006, although on one occasion he had returned half a

pound to Mr. Mendez. When he was arrested on October 30, 2006, Cardenas-

Rangel was in possession of one pound of methamphetamine, which was tested as

41% pure.

      Mr. Mendez asserts three challenges to the procedural reasonableness of his

sentence. All relate to the use of the methamphetamine to calculate his sentence:

(1) The district court should not have attributed the methamphetamine to him

when determining his sentence because there was no relationship between that

methamphetamine and the offense of conviction. (2) Instead of using the

guideline level for pure methamphetamine by calculating the actual amount of

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pure methamphetamine in the 4½ pound mixture (assuming 41% purity), the court

should have used the guideline level for a methamphetamine mixture (weighing

4½ pounds). (3) The court’s reliance on uncharged conduct (both the

methamphetamine sales and possession of a firearm) in his sentencing violated his

Sixth Amendment right under United States v. Booker, 543 U.S. 220 (2005), to a

jury determination of the facts supporting his sentence.

II.   ANALYSIS

      A.     Related Conduct

      Mr. Mendez claims that the methamphetamine sales were unrelated to his

cocaine-based offenses because the methamphetamine sales were not part of the

conspiracy for which he was convicted and lacked similarity or a temporal

relationship to the charged conduct. “Because [Mr. Mendez] did not raise this

issue below, we review the district court’s sentencing decision for plain error.”

United States v. Delacruz-Soto, 414 F.3d 1158, 1162 (10th Cir. 2005).

      To establish plain error, [Mr. Mendez] must demonstrate that the
      district court (1) committed error, (2) that the error was plain, and (3)
      that the plain error affected his substantial rights. If the error meets
      all these conditions, a reviewing court may exercise discretion to
      correct the error if allowing the error to stand would seriously affect
      the fairness, integrity, or public reputation of judicial proceedings.

Id. (citations omitted).

      “Relevant Conduct” to be used in calculating a defendant’s offense level

includes “all acts and omissions . . . that were part of the same course of conduct


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or common scheme or plan as the offense of conviction.” USSG § 1B1.3(a)(2)

(2007). “For two or more offenses to constitute part of a common scheme or plan,

they must be substantively connected to each other by at least one common factor,

such as common victims, common accomplices, common purpose, or similar

modus operandi.” Id. cmt. n.9(A). “Offenses . . . qualify as part of the same

course of conduct if they are sufficiently connected or related to each other as to

warrant the conclusion that they are part of a single episode, spree, or ongoing

series of offenses.” Id. cmt. n.9(B) (emphasis added). “[W]hen determining

whether certain activity qualifies as relevant conduct under the Guidelines,

similarity, regularity, and temporal proximity are the significant elements to be

evaluated.” United States v. Caldwell, 585 F.3d 1347, 1350 (10th Cir. 2009)

(brackets and internal quotation marks omitted).

      Testimony at Mr. Mendez’s sentencing hearing showed that between 2000

and his arrest in 2007, Mr. Mendez had been involved in continuing drug sales,

including (1) distribution of between 200 and 500 pounds of marijuana over a

five-year period beginning in 2000, (2) distribution of 20 kilograms of cocaine

between 2004 and the time of his arrest, and (3) distribution of methamphetamine

to Cardenas-Rangel in 2006. Because the district court could reasonably find that

the methamphetamine sales were part of an ongoing series of unlawful drug sales,

the court did not commit error, much less plain error, in considering the

methamphetamine sales as relevant conduct. See United States v. Lauder, 409

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F.3d 1254, 1266–67 (10th Cir. 2005). In particular, we cannot say that the court

erred in finding Cardenas-Rangel credible. See United States v. Hanson, 534 F.3d

1315, 1319 (10th Cir. 2008) (sentencing judge makes credibility determinations).

      B.        Offense Level Based on Methamphetamine

      Mr. Mendez also challenges the decision of the district court to base his

sentence on the amount of pure methamphetamine attributed to him. Because he

raised this procedural-reasonableness issue below, we review for abuse of

discretion. See United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009).

      The guidelines provide two methods for calculating offense levels based on

unlawful dealings with methamphetamine. First, the calculation can be based on

the weight of the “controlled substance [methamphetamine],” which is “the entire

weight of any mixture or substance containing a detectable amount of the

controlled substance [methamphetamine].” USSG § 2D1.1(c) n.(A) (2007). The

alternative is to base the calculation on the quantity of “Methamphetamine

(actual),” which is “the weight of the [methamphetamine], itself, contained in the

mixture or substance.” Id. n.(B). The guidelines state that the court should

calculate the offense level using both methods and then use “whichever is

greater.” Id.

      The district court did precisely what the guidelines require. Mr. Mendez

claims, however, that the rule of lenity requires that he be sentenced based on the

lower calculation—in his case, using the level for the mixture. But the rule of

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lenity applies only to ambiguous laws, and the guidelines involved here are

precise. We have previously rejected the identical lenity argument. See United

States v. Decker, 55 F.3d 1509, 1513 (10th Cir. 1995).

      Mr. Mendez attempts to distinguish Decker on the ground that it was

decided when the guidelines were mandatory, and that current law making them

only advisory renders them ambiguous here. But the presence of sentencing

discretion does not mean that the trial court must vary from the guidelines range.

And a guideline does not become ambiguous simply because a court need not

follow precisely what it says. We conclude that the district court did not err in

calculating Mr. Mendez’s guidelines sentencing range. We add that insofar as

Mr. Mendez is complaining that the guidelines calculation was incorrect because

the court treated the methamphetamine as “ice,” he relies on a faulty factual

premise. The court did not treat the methamphetamine as ice.

      Having correctly calculated Mr. Mendez’s guidelines sentencing range, the

district court was not required to give a lengthy explanation for its sentence

within the guidelines range. See Rita v. United States, 551 U.S. 338, 356 (2007).

The district court adequately articulated its reasons for imposing a 180-month

sentence.

      C.     Alleged Booker Violation

      Finally, Mr. Mendez argues that his Sixth Amendment right under Booker

was violated because the district court based his sentence on facts not found by a

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jury beyond a reasonable doubt. We have repeatedly rejected this argument, see,

e.g., United States v. Ivory, 532 F.3d 1095, 1103 (10th Cir. 2008), and do so again

today.

III.     CONCLUSION

         We AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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