                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                             FOR THE TENTH CIRCUIT                                June 7, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 15-8053
                                                    (D.C. No. 2:15-CR-00005-ABJ-2)
CAITLIN VILLA,                                                  (D. Wyo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, McKAY, and BALDOCK, Circuit Judges.
                  _________________________________

      Without a plea agreement, Defendant Caitlin Villa pleaded guilty to

conspiracy   to   possess     with   intent   to   distribute   50   grams   or   more   of

methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B).

Based on its finding that Villa was responsible for at least 500 grams but less than 1.5

kilograms of methamphetamine, the district court sentenced Villa to 69 months and

6 days’ imprisonment. Villa challenges the reliability of the evidence the district

court used to calculate the amount of methamphetamine for which she was

responsible. Exercising jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291,

we affirm.

      *
         This order and judgment is not binding precedent, except under the doctrines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.
                                            I.

      Villa entered a blind plea to an indictment charging her with participating in a

conspiracy with co-Defendants Shane David Fischer and Ricardo Miranda. The alleged

conspiracy spanned from March 2014 through October 2014 and involved the

distribution of 50 grams or more of methamphetamine.

      In the Presentence Investigation Report (PSR), the United States Probation Office

(USPO) calculated that Villa was responsible for 1,550 grams of methamphetamine based

on investigative reports detailing information from a number of witnesses:

    In a proffer, Mary Barker said she purchased one ounce of methamphetamine from
     Fischer while she was dating him. After they broke up, she purchased 3.75 ounces
     of methamphetamine from Fischer from the middle of July to July 31, 2014.
     Although Barker purchased methamphetamine from Fischer, she said Villa was
     Fischer’s source. The PSR thus calculated that Villa was responsible for 4.75
     ounces or 135 grams.

    In an interview with law enforcement, Natalie Heigis said she purchased two to
     three ounces of methamphetamine a week from Fischer during the two months
     before her arrest on August 6, 2014. Heigis also said Villa was Fischer’s source
     during this time period. Using the estimation of two ounces per week for eight
     weeks, the PSR calculated that Villa was responsible for 16 ounces or 453 grams.

    Kristina Chavez told law enforcement that she purchased two ounces, or 56
     grams, of methamphetamine from Fischer, sourced by Villa, from late June to
     July 2014.

    Mary Atwood said she purchased two ounces of methamphetamine from Fischer
     per week, sourced by Villa, from January 2014 to July 4, 2014. The PSR noted
     that Fischer was incarcerated from December 2013 to May 8, 2014, making it
     impossible that Atwood purchased methamphetamine from Fischer until after he
     was released. The PSR thus calculated that Atwood bought two ounces per week
     for only six weeks, resulting in 12 ounces or 340 grams attributable to Villa.

    Co-Defendant Miranda stated in a proffer that he met Fischer in February 2014
     and purchased 1/16th of an ounce, or 1.75 grams, of methamphetamine from
     Fischer. The PSR noted that Miranda could not have met Fischer in February

                                            2
      because Fischer was not released until May 8, 2014 and, thus, the PSR did not
      include this amount in its calculation. The second time Miranda met with Fischer,
      he purchased two ounces of methamphetamine. Sometime later, Miranda, Fischer,
      and Villa discussed methamphetamine trafficking. Miranda began obtaining
      approximately four ounces of methamphetamine per week through July 2014. The
      PSR calculated Miranda received four ounces for four weeks, plus the earlier two-
      ounce purchase, for a total of 18 ounces or 510 grams of methamphetamine. In
      late July 2014, Miranda purchased methamphetamine directly from Villa on three
      occasions, totaling two ounces or 56 grams.

The PSR thus calculated that Villa was responsible for 1,550 grams of methamphetamine,

but because the methamphetamine quantity was so close to the threshold between base

offense level 32 (1.5 to 5 kilograms) and level 30 (500 grams to 1.5 kilograms), the PSR

used the lower range.

      Villa submitted several somewhat-hard-to-follow objections to the PSR. As best

as we can understand, the objections state the following:

     Villa challenged the ounce of methamphetamine that Barker purchased from
      Fischer while Barker was dating Fischer because the PSR did not indicate when
      the sale occurred. As to the 3.75 ounces from the middle to the end of July, Villa
      explains that she also dated Fischer but that she stopped providing Fischer with
      methamphetamine after they broke up on July 4, 2014. Thus, Villa objected to
      the whole 135 grams.

     Villa disputed the amounts attributed to her from Heigis. Villa explained that
      Heigis “was arrested on 8/6/14 and Villa had cut off Fischer in July. She was not
      one of Fischer’s source [sic] in June because Fischer and Villa went to most of his
      dealings because she didn’t trust him to only trade meth for cash and not personal
      interaction because dealer and client [sic].”

     Villa admitted that the PSR’s “Paragraph 10 is completely true.” Thus, Villa
      admitted that she provided Fischer with the 56 grams of methamphetamine that
      he sold to Chavez from late June to July 2014.

     As to the timeframe during which Atwood purchased methamphetamine from
      Fischer through Villa, Villa “agree[d] it was only approximately six weeks, but
      she believes it was about an ounce a week for 170 grams.” Villa asserted that


                                            3
       Atwood’s testimony verified that Villa and Fischer broke up on July 4, 2014.1
       Thus, Villa admitted she provided Fischer with the 170 grams he then sold to
       Atwood from June to July 4, 2014, when Villa and Fischer broke up.

     Villa argued Miranda’s testimony that he met Fischer when Fischer was still
      incarcerated shows that he and the other witnesses were lying. She next pointed
      out the improbability that Miranda would first purchase 1/16th of an ounce and
      then jump to purchasing two ounces. But she argued that the PSR was “not being
      conservative enough” for the four weeks Miranda purchased from Fischer and
      Villa—instead of four ounces, Villa said Miranda purchased two ounces per
      week. Further, she admitted Miranda purchased an additional ounce, but not two,
      from Villa in late July 2014. Villa concluded “Miranda should be nine ounces,”
      thus admitting to nine ounces or 255 grams.

Although Villa seems to calculate in her Objections that she was responsible for “406

grams,” our calculations show that she admitted to 481 grams of methamphetamine. The

USPO in the Addendum to the PSR noted Villa’s objections but maintained that Villa

continued to supply methamphetamine to Fischer through July and August 2014. It thus

asserted that Villa was responsible for at least 500 grams to 1.5 kilograms of

methamphetamine.

      At the sentencing hearing, Detective Craig Hutchinson testified about the

investigation. He briefly described the people he and other law enforcement officers

interviewed and the information they gathered. Villa challenged Hutchinson’s testimony

as unreliable hearsay that violated her Sixth Amendment right to confront witnesses, but

the district court overruled her objection, noting that neither the Sixth Amendment’s

Confrontation Clause nor the Federal Rules of Evidence apply at sentencing hearings.



      1
         Villa wrote in this objection that she and Fischer ended their relationship on
July 14, 2014, but because she consistently argues elsewhere that they broke up on
July 4, 2014, we believe she meant July 4.
                                           4
The following is a summary of Hutchinson’s relevant testimony regarding the

investigation:

        Hutchinson interviewed Barker at the end of July or beginning of August 2014
         at the Laramie County Detention Center. Barker identified Fischer as a
         methamphetamine source in the Cheyenne, Wyoming area and said his source
         of supply was a female named Caitlin. In a proffer taken August 21, 2014,
         Barker added that she dated Fischer for one week in July 2014 and purchased
         approximately 135 grams of methamphetamine from him. She said his source
         was Fischer’s ex-girlfriend Caitlin, who Hutchinson identified as Villa.

        Hutchinson interviewed Heigis at the Laramie County Detention Center on
         September 18, 2014. Hutchinson reiterated the amounts quoted in the PSR and
         testified that during the two months before Heigis’s arrest, Heigis purchased
         approximately 453 grams of methamphetamine from Fischer and said Fischer’s
         source was Villa. On cross-examination, Hutchinson said Heigis had admitted
         to buying two to three ounces of methamphetamine for $250, but he did not
         clarify with Heigis whether that was per ounce or total. Either way, Villa
         pointed out that $250, whether per ounce or for two to three ounces, was far
         less than the $900 per ounce that Miranda said Villa charged him.

        On October 9, 2014, Hutchinson interviewed Chavez. Chavez said she
         purchased 56 grams of methamphetamine from Fischer and identified his
         supplier as Villa.

        Hutchinson testified that Special Agent Tafoya with the Division of Criminal
         Investigation interviewed Atwood on January 15, 2015. Atwood told the agent
         that she purchased 340 grams of methamphetamine from Fischer, sourced by
         Villa. Villa argued that Hutchinson could not form an opinion about Atwood’s
         credibility because he did not interview Atwood, but the district court
         overruled the objection.

        Hutchinson interviewed co-Defendant Miranda on December 2, 2014.
         Miranda told Hutchinson he met Fischer in January 2014 and purchased two
         ounces of methamphetamine from Fischer and Villa. He began purchasing
         methamphetamine daily or every other day, approximately four ounces a week,
         from Fischer and Villa when both were present. Miranda, Fischer, and Villa
         would all discuss the prices for which Miranda should sell the
         methamphetamine. Beginning on July 4, 2014, Miranda purchased directly
         from Villa and stopped purchasing from Fischer. During cross-examination,
         Villa pointed out that Fischer was incarcerated until May 8, 2014. Hutchinson
         admitted that he did not know when Fischer was incarcerated and that he did

                                          5
           not interview Fischer. Hutchinson explained that he generally asks for
           estimated rather than exact dates from witnesses.

        While Hutchinson was present, another detective interviewed Tanisha Valero.
         She purchased an unidentified amount of methamphetamine from Fischer near
         the end of June or beginning of July 2014 before her arrest on July 10, 2014.
         Valero told the detective that Fischer identified Villa as his source of
         methamphetamine.

       Hutchinson also testified that he executed a search warrant on a lock box inside a

gold GMC pickup truck that several witnesses said Fischer had purchased from Villa and

that had been towed from an alley outside Chavez’s house. He also searched a storage

unit rented under Villa’s name that Miranda and Chavez identified as Villa’s. Although

Hutchinson found drug paraphernalia inside the truck, he did not find any

methamphetamine in the truck or storage unit.         On cross-examination, Hutchinson

admitted that none of the witnesses were placed under oath, all were potential targets in

drug investigations, and the witnesses did not have an opportunity to review their

statements or recordings.    Villa also challenged Hutchinson on several pieces of

information that he did not verify during the course of his investigation, such as

allegations from Miranda that Fischer allegedly fired a weapon around the manager of a

trailer park and another instance in which Fischer allegedly fired rounds at passing cars

on the interstate.

       Villa   then   presented   Molly   Martinez,   who    admitted   that   she   used

methamphetamine but did not have any knowledge that Villa was supplying

methamphetamine to Fischer. She explained that Villa was afraid of Fischer. She also




                                           6
testified that she came with Villa to Wyoming sometime in the middle to end of July

2014 to recover the truck that Villa had sold to Fischer.

       In its oral ruling, the district court explained that, because the case “involves a so-

called dry conspiracy in that there are not large amounts of drugs that were seized as part

of the arrest,” it had to “rely upon the information that was provided to law enforcement

through statements made during their investigation by those who were acquainted with

the [sic] or alleged to be acquainted with the activity.” Sent. Tr. at 116. The district

court noted that Miranda and Atwood incorrectly described the dates they began

purchasing methamphetamine from Fischer because Fischer was still incarcerated at the

time, and further noted that Hutchinson was not aware that Fischer was incarcerated. Id.

at 16–17. The district court stated, however, that “the people that were interviewed and

made statements against their interest were persons who, including Miss Barker, were

making statements against their criminal interest in that they were customers, users of the

methamphetamine, and had every reason to minimize their involvement with Mr. Fischer,

Mr. Miranda, and Ms. Villa.”          Id. at 117.   The district court stated there was “a

substantial amount of statements by and between various individuals interviewed by

Officer Hutchinson that support the activities that were occurring and the conspiracy in

this case.” Id. at 118. Although it noted some inconsistencies, the district court said

“there is less dispute with regard to various events that occurred during the summer of

2014 incident to the drug activity of Mr. Fischer, Mr. Miranda, and Miss Villa.” Id.

Thus, the district court concluded:



                                               7
               Miss Villa did furnish methamphetamine to Mr. Fischer and to
       Mr. Miranda. I accept the information in that regard and believe that the, as
       a     supplier   and     source     of     methamphetamine,        high-quality
       methamphetamine, by the way, that was delivered in this matter, that the
       drug quantity of greater than 500 grams but less than 1.5 [kilograms] is a
       fair and accurate characterization in this matter, and that will be the finding
       of the Court.

Id. at 119. The district court thus applied a base offense level of 30 for the 500 grams to

1.5 kilograms of methamphetamine. It then subtracted three levels for acceptance of

responsibility for a total offense level of 27. With her criminal history category of I, the

sentencing range was 70–87 months. The district court sentenced Villa to 69 months and

6 days’ incarceration.

                                              II.

       Villa’s primary concern on appeal is the reliability of the evidence the district

court considered in determining the quantity of methamphetamine attributable to her.

Although Villa pleaded guilty to an indictment charging only “50 grams or more” of

methamphetamine, a district court “may look beyond the charges alleged in the

indictment” and consider drugs that were part of the same course of conduct or common

scheme and plan to calculate a defendant’s base offense level. United States v. Hamilton,

587 F.3d 1199, 1221 (10th Cir. 2009) (citation omitted); see also U.S.S.G. § 2D1.1 cmt.

n. 5 (“Types and quantities of drugs not specified in the count of conviction may be

considered in determining the offense level.”). The United States must prove the relevant

drug quantity by a preponderance of the evidence. United States v. Foy, 641 F.3d 455,

468 (10th Cir. 2011). Because the Federal Rules of Evidence do not apply at sentencing,

Fed. R. Evid. 1101(d)(3), the term “evidence” in the sentencing context “refers to any

                                             8
information that meets the standards of reliability found in § 6A1.3.” United States v.

Beaulieu, 893 F.2d 1177, 1181 n.7 (10th Cir. 1990). Thus, a sentencing 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.”      U.S.S.G. § 6A1.3 (emphasis added).

When, as here, the United States has not seized the actual drugs involved, the district

court may rely on an estimate of the drug quantity to establish the guideline offense level

“so long as the information relied upon has some basis of support in the facts of the

particular case and bears sufficient indicia of reliability.” United States v. Dalton, 409

F.3d 1247, 1251 (10th Cir. 2005) (internal quotation marks omitted). The “need to

estimate drug quantities” is not, however, “a license to calculate drug quantities by

guesswork.” United States v. Richards, 27 F.3d 465, 469 (10th Cir.1994) (internal

quotation marks omitted).

       We review the district court’s factual findings regarding drug quantities for clear

error and will reverse only if those findings were “without factual support in the record or

we are left with the definite and firm conviction that a mistake has been made.” Foy, 641

F.3d at 468 (citation omitted); see also United States v. Cardenas–Alatorre, 485 F.3d

1111, 1119 (10th Cir. 2007) (holding that, for a finding to be clearly erroneous, the

“finding must be more than possibly or even probably wrong; the error must be pellucid

to any objective observer”).     The district court’s determination that evidence bears

sufficient indicia of reliability is also a factual matter we review for clear error. United

States v. Hooks, 65 F.3d 850, 854 (10th Cir. 1995). We review de novo the district

                                             9
court’s legal conclusions, including those pertaining to the Guidelines, United States v.

Todd, 515 F.3d 1128, 1135 (10th Cir. 2008), and whether the sentence or consideration of

evidence violated the Sixth Amendment, United States v. Bustamante, 454 F.3d 1200,

1202 (10th Cir. 2006).


                                             III.

      Villa argues (1) the evidence the district court considered lacked sufficient

indicia of reliability; and (2) the Confrontation Clause of the Sixth Amendment as

construed in Crawford v. Washington, 541 U.S. 36 (2004), should apply at

sentencing. Villa acknowledges that Tenth Circuit precedent forecloses her Sixth

Amendment argument. In Bustamante, we reiterated our pre-Crawford conclusion

that the Confrontation Clause does not apply at sentencing and held that Crawford

does not require otherwise. Bustamante, 454 F.3d at 1202–03. This panel is not free

to change the law as Villa requests. “[O]ne panel cannot overrule the judgment of

another panel of this court . . . absent en banc reconsideration or a superseding contrary

decision by the Supreme Court.” Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1229

(10th Cir. 2001) (internal quotation marks omitted).

      We will thus move to Villa’s argument that the evidence the district court

relied on at sentencing failed to meet the “sufficient indicia of reliability”

requirement of U.S.S.G. § 6A1.3.       Villa’s concern centers on the “hearsay upon

hearsay” that Hutchinson testified to, but “a district court may rely on hearsay

evidence as long as the evidence is sufficiently reliable.” United States v. Caiba–


                                           10
Antele, 705 F.3d 1162, 1165 (10th Cir. 2012); see also United States v. Basnett, 735

F.3d 1255, 1261 (10th Cir. 2013) (“[T]he district court could rely on double hearsay

as long as the statements contained minimal indicia of reliability.”).2

      The district court found that “the drug quantity of greater than 500 grams but

less than 1.5 [kilograms] is a fair and accurate characterization in this matter.”3

Much of the evidence the district court considered bore sufficient indicia of

reliability, particularly in light of Villa’s own admissions through her Objections to

the PSR. Villa admitted she was responsible for the 56 grams of methamphetamine

that Fischer sold to Chavez from late June to July 2014; the 170 grams that Fischer

sold to Atwood from June to July 4, 2014; and the 255 grams Miranda purchased

either from Fischer and Villa or directly from Villa in June and July 2014.4 With

these three amounts, Villa admitted to 481 grams of methamphetamine. But her

admissions did more than establish a certain quantity. Villa effectively admitted she


      2
         Unlike cases where the out-of-court declarations are from an unidentified
informant, which require “good cause for the non-disclosure of the informant’s
identity” and “sufficient corroboration by other means,” the Sentencing Guidelines
here, with known out-of-court declarants, direct us to ensure only that the hearsay
evidence is reliable. U.S.S.G. § 6A1.3 cmt.
      3
         Although the district court stated Villa was responsible for “high-quality
methamphetamine” without having heard evidence as to the drug’s quality, we are
concerned here with the quantity, not quality, of the methamphetamine. As we
explain, the district court did not clearly err in concluding that the evidence regarding
the drug quantity was reliable.
      4
        Atwood and Miranda stated that they purchased methamphetamine from
Fischer during a time in which Fischer was incarcerated, but this inaccuracy in the
dates does not detract from Villa’s own admission, which shows that, at least to the
amounts she admitted, the witnesses supplied Hutchinson with reliable information.
                                           11
(1) provided methamphetamine (2) to Fischer (3) in June and up to July 4, 2014. Her

admission lends sufficient reliability to Heigis’ claim that Heigis likewise purchased

methamphetamine from Fischer, sourced by Villa, during this time frame. Heigis

told Hutchinson she purchased two to three ounces of methamphetamine per week

during the two months prior to her arrest on August 6, 2014. Because we know Villa

supplied methamphetamine at least during June and up to July 4, 2014, the evidence

is sufficiently reliable to find that, conservatively, Villa was responsible for the two

ounces per week for four weeks that Fischer sold to Heigis, resulting in an additional

eight ounces or 227 grams. This amount, added to the amount Villa admitted, results

in 708 grams, which is well within the 500 grams to 1.5 kilograms range the district

court found.

      An even more conservative estimate likewise reaches past the 500 gram

minimum to support the district court’s conclusion. Cross-examination revealed that

Heigis said she purchased two to three ounces of methamphetamine for $250,

whereas Miranda said Villa charged him $900 per ounce. Hutchinson did not know if

Heigis meant that she purchased two to three ounces for $250 total or $250 per

ounce, but an even more conservative calculation based on the testimony is that

Heigis purchased $250 worth of methamphetamine from Fischer each week for four

weeks. See United States v. Cook, 949 F.2d 289, 295–96 (10th Cir. 1991) (affirming

the district court’s estimate of a drug quantity based on witness testimony that the

defendant sold a specified dollar amount of drugs over a specified time period);

U.S.S.G. § 2D1.1, cmt. n.5 (noting that in estimating the quantity of the controlled

                                          12
substance, “the court may consider, for example, the price generally obtained for the

controlled substance, financial or other records, [and] similar transactions in

controlled substances by the defendant”). Assuming Villa provided Fischer with

methamphetamine at $900 per ounce, as Miranda quoted, the $250 worth of

methamphetamine was .28 ounces, or approximately eight grams. Even if Heigis

only purchased eight grams for four weeks from Fischer by way of Villa, this results

in 32 grams. This very conservative estimate added to Villa’s own admissions results

in a combined total of 513 grams.

      But because we are considering only whether the district court clearly erred,

we think the district court could appropriately make a more liberal calculation.

Hutchinson himself conducted or was present for most of the interviews and could

therefore form an opinion as to the veracity of those witnesses. See Caiba–Antele,

705 F.3d at 1166 (holding the evidence relied on by the district court manifested

sufficient indicia of reliability, in part because “[t]he detectives who testified

regarding the sexual assault charges had observed the victims first-hand and were

able to form reasoned opinions regarding their veracity”).5 Further, the fact that a

number of witnesses provided the same information adds to each individual’s

      5
         Villa complained that Hutchinson could not form an opinion of Atwood’s
veracity because he did not interview her. See United States v. Fennell, 65 F.3d 812,
813 (10th Cir. 1995) (holding that evidence the defendant fired a machine gun at his
girlfriend lacked sufficient indicia of reliability because it was uncorroborated and
the preparing officer, who spoke to the defendant’s girlfriend only over the phone,
“did not have an opportunity to observe her demeanor during the interview and
therefore could not form any opinion as to her veracity”). But Villa’s admissions in
her Objections to the PSR provide the necessary indicia of reliability to rely on the
quantities Atwood quoted, regardless of who interviewed her.
                                         13
reliability. Barker, Heigis, Chavez, Atwood, Miranda, and Valero all said that Villa

provided methamphetamine to Fischer.         Heigis, Chavez, and Atwood said Villa

provided Fischer with methamphetamine in June and at least up to July 4, 2014. As

the district court noted, these individuals made statements against their interest and

“had every reason to minimize their involvement.” Sent. Tr. at 117. The district

court could rely on the amounts these individuals quoted to estimate Villa’s

involvement, even though the investigators did not find any methamphetamine,

because the estimates were based on the facts of this case rather than general

averages.   Cf. United States v. Garcia, 994 F.2d 1499, 1508–09 (holding that a

district court’s finding was clearly erroneous when, in determining the amount of

marijuana involved in the defendant’s two shipments by car from Mexico, the district

court relied on an FBI agent’s testimony of the “average size shipment” from the

agent’s other cases). The district court did not clearly err in finding that the evidence

it considered was sufficiently reliable and that Villa was responsible for more than

500 grams but less than 1.5 kilograms of methamphetamine. The district court’s

findings are not “without factual support” and we are not “left with the definite and

firm conviction” that the district court erred. Dalton, 409 F.3d at 1251 (internal

quotation marks omitted). We affirm the district court’s judgment.


                                            Entered for the Court


                                            Bobby R. Baldock
                                            Circuit Judge


                                           14
