                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 05-13024                FEBRUARY 15, 2006
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                   D. C. Docket No. 03-00056-CR-5-MCR

UNITED STATES OF AMERICA,


                                                 Plaintiff-Appellee,

                                   versus

CLINTON LEE BENTON,

                                                 Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                             (February 15, 2006)

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Clinton Lee Benton appeals his 151-month sentence for conspiracy to
manufacture, distribute and possess with intent to distribute 500 grams or more of

a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A)(viii) and 846. We AFFIRM.

                                                I.

       In March 2004 Benton pleaded guilty to count one of an indictment alleging

the methamphetamine conspiracy. The presentence investigation report (PSI)

determined that the drug weight for which Benton should be held responsible was

6,000 grams (six kilograms) of methamphetamine. That determination was based

upon (1) Benton’s admission that on three occasions he had delivered at least 10

gallons of anhydrous ammonia to co-conspirator Michael Sherrod for use in

making methamphetamine (30 gallons total) and (2) Sherrod’s anticipated

testimony that one gallon of anhydrous ammonia could produce approximately 200

grams of a mixture containing methamphetamine.

       Benton objected to the PSI’s drug weight computation and its use of

Sherrod’s testimony. The addendum to the PSI indicates that Benton stated in his

written objections to the PSI that Sherrod had told him that four ounces (113.4

grams) of methamphetamine could be produced from one gallon of anhydrous

ammonia.1


       1
         In his brief before this court, Benton denies making that statement to the probation
officer. (Appellant’s Br. at 11.) At the sentencing hearing, however, Benton did not object

                                                 2
        At the sentencing hearing Benton introduced expert testimony to undermine

the reliability of Sherrod’s testimony about how much methamphetamine he could

produce from a given quantity of anhydrous ammonia. The expert, Dr. James T.

Booker, Ph.D., testified on direct: “You can’t make an estimate of how much

methamphetamine can be made from a quantity of anhydrous ammonia, because

anhydrous ammonia is not one of the precursors.” (Transcript at 24.) During

cross, Dr. Booker stated in reference to the conspirators in this case: “They can

say how much anhydrous they used. They just can’t tell you how much

methamphetamine can be made from a given quantity of that. I mean, if you start

with a gallon [of anhydrous ammonia], you can’t say, in fact, that you can make

100 grams or 20 grams or 200 grams [of methamphetamine] and do that with any


when the Government represented in its closing argument that Benton should be held
accountable for at least 113.4 grams of methamphetamine per gallon of anhydrous ammonia
based on his representation to the probation officer, nor did he object when the trial court used
that ratio to calculate the total drug quantity. Moreover, in his rebuttal to the government’s
response to his request to hire an expert witness, Benton clearly stated: “Michael Sherrod, the
manufacturer of most of the methamphetamine, told the defendant that four ounces (113.4
grams) of methamphetamine could be produced from one gallon of anhydrous of ammonia.”
(Doc. 124 at 4.)

        We note in passing a glaring error in the government’s brief concerning the following
statement at the sentencing hearing: “At the very minimum, Judge, the defendant told the
probation officer that he had been told by Mr. Sherrod that an individual could manufacture four
ounces of meth which would be equivalent to 113.4 grams . . . for using one gallon of anhydrous
ammonia. So at least, Judge, his knowledge of that information is what he should be held to. He
anticipated that.” The government incorrectly attributes that statement to Benton’s counsel not
once but twice. (Appellee’s Br. at 6, 11.) In fact, it was the government’s trial counsel who
made that statement. (Transcript at 111–12.) We expect more accuracy from counsel who
appear in this Court.

                                                 3
precision or accuracy because it’s not scientifically [ascertainable].” (Id. at 26.)

      Sherrod testified that he could produce approximately 200 grams of

methamphetamine using one gallon of anhydrous ammonia. Sherrod also stated

that Benton made three deliveries to him and that the total amount of anhydrous

ammonia delivered was 27.5 gallons. An agent with the Drug Enforcement

Administration testified that two other methamphetamine chefs, who had

purchased anhydrous ammonia from Sherrod and had been prosecuted separately,

had claimed to be able to make 225 grams and between 160 and 250 grams of

methamphetamine per gallon of anhydrous ammonia.

      The court determined that Sherrod’s testimony that he produced 200 grams

of methamphetamine with each gallon of anhydrous ammonia supplied to him was

unreliable because “[t]here was nothing from Mr. Sherrod about any failed

production.” (Transcript at 124.) Instead, the court found that “the more

reasonable drug weight” was based on Benton’s admission to the probation officer

that four ounces of methamphetamine (113.4 grams) could be made with each

gallon of anhydrous ammonia. (Id.) Relying on that methamphetamine/anhydrous

ammonia ratio and Sherrod’s testimony that Benton delivered a total of 27.5

gallons of anhydrous ammonia to him, the court determined that Benton should be

held responsible for 3,118.5 grams (3.1 kilograms) of methamphetamine substance.



                                           4
      The resulting base offense level was 34. See United States Sentencing

Guidelines § 2D1.1(c)(3) (Nov. 2004) (“At least 1.5 KG but less than 5 KG of

Methamphetamine”). The court applied a two level enhancement for

transportation of a hazardous waste, see id. § 2D1.1(b)(6)(A)(ii), and a three level

reduction for acceptance of responsibility, see id. § 3E1.1, to reach an adjusted

offense level of 33. Based on a criminal history category of II, the resulting

guideline range was 151-188 months. The court sentenced Benton to the lowest

point of that range.

                                           II.

      Benton first contends that the district court incorrectly determined the

amount of methamphetamine that could be produced from a given amount of

anhydrous ammonia in light of Dr. Booker’s testimony that such a determination

was not reliable. He did not specifically object to the district court’s use of his

statement, contained in the PSI addendum, that Sherrod told him one gallon of

anhydrous ammonia could make four ounces (113.4 grams) of methamphetamine;

however, Benton did lodge a general objection to the court’s drug quantity

determination. Accordingly, the government had the burden to establish the drug

quantity by a preponderance of the evidence. United States v. Rodriguez, 398 F.3d

1291, 1296 (11th Cir. 2005), cert. denied, __ U.S. __, 125 S. Ct. 2935 (2005). We



                                           5
review the district court’s drug quantity determination for clear error. Id.

      “Where there is no drug seizure or the amount seized does not reflect the

scale of the offense, the court shall approximate the quantity of the controlled

substance.” U.S.S.G. § 2D1.1 cmt. n.12. The court’s approximation should

produce a “fair, accurate, and conservative estimate[] of the quantity of drugs

attributable to a defendant” and should not be “merely speculative.” United States

v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998) (marijuana conspiracy). The court

may consider “evidence offered at sentencing to establish the amount of [a drug]

that could have been produced by the defendants’ conspiracy.” United States v.

Carroll, 6 F.3d 735, 742 (11th Cir. 1993) (methamphetamine conspiracy).

Moreover, the sentencing court “may properly estimate drug quantity based on

available precursors when other necessary ingredients are absent” and “may also

estimate drug quantity based on the most abundant chemical even if less[]

abundant precursors are also present.” United States v. Smith, 240 F.3d 927, 931

(11th Cir. 2001) (methamphetamine conspiracy).

      We conclude that the district court did not clearly err by calculating the drug

quantity attributable to Benton. The sentencing guidelines instruct the sentencing

court to “approximate” the drug quantity, and our case law authorizes the court to

use drug precursors and other ingredients such as anhydrous ammonia in doing so.



                                           6
      The court found that Sherrod’s testimony that he could produce 200 grams

of methamphetamine from each gallon of anhydrous ammonia was unreliable

because he did not account for botched batches. In that respect, the court credited

Dr. Booker’s testimony. The court then used a significantly more conservative

estimate that was offered by Benton himself (albeit to undermine Sherrod’s

testimony), and Benton did not object to the court’s use of that estimate.

       Given Sherrod’s testimony of his actual practices and yields, as well as the

DEA agent’s testimony about other methamphetamine cooks in related cases, we

cannot agree with Benton that the district court clearly erred in finding Benton

responsible for a much lower drug quantity estimate than the evidence produced at

the sentencing hearing could have supported, even in light of Dr. Booker’s

testimony. Accordingly, we affirm the district court’s finding that approximately

3.1 kilograms of methamphetamine substance were attributable to Benton.

                                         III.

      Benton also contends under United States v. Booker, 543 U.S. 220, 125 S.

Ct. 738 (2005), that the district court violated his Sixth Amendment right to trial by

jury by making a drug quantity determination that exceeded the amount stated in

count one of the indictment to which he pleaded guilty. Because Benton asserts

constitutional Booker error for the first time on appeal, we review for plain error.



                                           7
Rodriguez, 398 F.3d at 1298. Under that standard, we must first determine

whether the district court committed “‘(1) error, (2) that is plain, and (3) that

affects substantial rights.’” Id. (quoting United States v. Cotton, 535 U.S. 625,

631, 122 S. Ct. 1781, 1785 (2002)). Even if all three of those conditions are met,

our discretion to notice the error is not triggered unless “‘(4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.’” Id.

(quoting Cotton, 535 U.S. at 631, 122 S. Ct at 1785)).

      In this case, we need to go no further than the first prong of plain error

review. The court in this case applied the guidelines in an advisory fashion and

found the drug quantity by a preponderance of the evidence. See Part II, above. It

was therefore not error under Booker for the court to enhance Benton’s sentence

based on its drug quantity determination. See Rodriguez, 398 F.3d at 1301 (stating

that the use of extra-verdict enhancements “remains a constitutional part of

guidelines sentencing in the post-Booker era”); see also United States v. Chau, 426

F.3d 1318, 1324 (11th Cir. 2005) (“The court did find, by a preponderance of the

evidence, facts that went beyond the letter of the charges contained in the

indictment to which Chau pleaded guilty. It was okay for the court to do that

because it applied the guidelines in an advisory way. Nothing in Booker is to the

contrary.”).



                                            8
AFFIRMED.




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