                                                                            F IL E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                        January 26, 2007
                   U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                      Elisabeth A. Shumaker
                                T E N T H C IR C U IT                     Clerk of Court



U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,                         No. 06-5018

         v.                                              (N .D. of Okla.)

DA VID A LAN W ESTCOTT,                          (D.C. No. CR-02-120-02-EA)

          Defendant-Appellant.
____________________________

U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,                         No. 06-5019

         v.                                              (N .D. of Okla.)

C HA RLES A RN O LD M O O K ,                    (D.C. No. CR-02-120-04-EA)

          Defendant-Appellant.
____________________________

U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,                         No. 06-5026

         v.                                              (N .D. of Okla.)

M O RG AN EA RL WIN D RIX ,                      (D.C. No. CR-02-120-01-EA)

              Defendant-Appellant.




                           O R D E R A N D JU D G M E N T *


     *
         This order and judgment is not binding precedent except under the
                                                                    (continued...)
Before , H A R T Z, E B E L, and T Y M K O V IC H , Circuit Judges. * *


       Defendants-Appellants M organ Earl W indrix, Charles Arnold M ook, and

David Alan W estcott appeal their sentences for their roles in an Oklahoma

methamphetamine ring. All three were convicted of conspiring to manufacture

and distribute methamphetamine in violation of 21 U.S.C. § 846, and of

possessing equipment and chemicals for the manufacture of methamphetamine in

violation of 21 U.S.C. § 843(a)(6). W indrix was further convicted of possessing

methamphetamine with the intent to distribute in violation of 21 U.S.C. § 843,

and maintaining a drug house in violation of 21 U.S.C. § 856(a)(1) and (b). M ook

was additionally convicted of being a felon in possession of a firearm in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). These consolidated appeals follow re-

sentencing. Appellants’ first sentences w ere overturned for error under United




       *
       (...continued)
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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

                                            -2-
States v. Booker, 543 U.S. 220 (2005). See United States v. Windrix, 405 F.3d

1146 (10 th Cir. 2005) (Windrix I). 1

         W e exercise jurisdiction under 21 U.S.C. § 1291, and AFFIRM the district

court.

                                    I. Background

         In Windrix I, we vacated each Appellant’s sentence to allow for re-

sentencing under an advisory Guidelines scheme consistent with Booker. In doing

so, we voiced concern with the district court’s attribution of actual

methamphetamine to all three Appellants, noting that without laboratory testing,

an assumption that all the methamphetamine w as pure may be mistaken. In

accordance with our remand, the district court resentenced each Appellant de

novo. Each Appellant challenges the reasonableness of his new sentence.

W estcott and M ook each make further challenges regarding the drug quantities

attributed to them and the district court’s mandate on re-sentencing. W e review

the facts relevant to each Appellant’s sentence.

A . W indrix

         W indrix was originally sentenced to life in prison under the then mandatory

Guidelines. He was found to be accountable for 1.927 kilograms of actual




         1
        The substance of all three Appellants’ crim inality is detailed in W indrix I,
and will not be repeated here. See 405 F.3d at 1148–52.

                                          -3-
methamphetamine w hich provided a base offense level of 38. The district court

added two levels for W indrix’s possession of a firearm. Four more levels were

added for his leadership role in the conspiracy, which placed his offense level at

43, the maximum. Combined with W indrix’s criminal history category I, the

Guidelines prescribed life imprisonment.

      On remand, the district court attributed drug quantities to W indrix in excess

of those found by the jury, finding W indrix accountable for 8.85 kilograms of a

substance containing methamphetamine. This set his base offense level at 36

based on the difference between the jury’s finding of “actual” methamphetamine

versus the court’s “substance containing” finding. W ith the firearm and

leadership enhancements W indrix’s offense level was therefore reduced to 42.

Combined with his criminal history category of I, the Guidelines recommended

360 months to life imprisonment. Explicitly taking the factors under 18 U.S.C. §

3553(a) into account, the court sentenced W indrix to 360 months for the

conspiracy and equipment convictions, 120 months for the equipment conviction,

and 240 months for possession with intent to distribute, with the sentences to run

concurrently.

B . W estcott

      W estcott was originally sentenced to 360 months in prison, the minimum

available under the then mandatory Guidelines. He was found to be accountable



                                         -4-
for 1.927 kilograms of actual methamphetamine w hich provided a base offense

level of 38. Combined with W estcott’s criminal history category of V, the

Guidelines prescribed 360 months to life imprisonment. At re-sentencing, noting

our concern w ith the attribution of actual methamphetamine absent laboratory

tests the court held W estcott accountable for 8.845 kilograms of a substance

containing methamphetamine. This set his base offense level at 36. W ith

W estcott’s criminal history category of V, the Guidelines recommended 292 to

365 months imprisonment. Explicitly taking the factors under 18 U.S.C.

§ 3553(a) into account, the court sentenced W estcott to 292 months: 240 months

for the conspiracy and equipment convictions, and 52 months for the firearm

count.

C . M ook

         M ook was originally sentenced to 360 months in prison, also the minimum

available under the then mandatory Guidelines. He was found to be accountable

for 1.84 kilograms of actual methamphetamine w hich provided a base offense

level of 38. The district court added two levels for M ook’s possession of a

firearm which left his offense level at 40. Combined with M ook’s criminal

history category of III, the Guidelines prescribed 360 months to life

imprisonment.




                                         -5-
      At re-sentencing, the court held M ook accountable for 5.4 kilograms of a

substance containing methamphetamine. This set his base offense level at 36.

W ith the firearm enhancement and M ook’s criminal history category of III, the

Guidelines recommended 292 to 365 months imprisonment. Explicitly taking the

factors under 18 U.S.C. § 3553(a) into account, the court sentenced M ook to 292

months: 240 months for the conspiracy and equipment convictions, and 52 months

for the firearm count.

                                  II. D iscussion

      In reaching all three Appellants’ second sentences, the district court

attributed drug quantities to them in excess of those found by the jury. At re-

sentencing, W estcott and M ook objected to the new sentence, arguing that the

court could not legally hold them accountable for more then 50 grams of

methamphetamine or 500 grams of a mixture because the jury had acquitted them

of charges alleging they distributed more than these amounts of drugs. They also

argued that the law of the case precluded the district court from recalculating the

weight of the methamphetamine attributable to them at re-sentencing. They

argued that allow ing the district court to recalculate the drug w eight would cause

Booker to operate in a manner that violates ex post facto principles of the Due

Process C lause. All three Appellants contended their sentences w ere

unreasonable under Booker.



                                         -6-
      W e address the same arguments on appeal.

A . Scope of D istrict C ourt A uthority to C alculate D rug Q uantity on
R em and

      W estcott’s and M ook’s first two contentions on appeal concern the district

court’s calculation of the drug quantity attributable to them. Each maintains first

that the district court could not hold him responsible for more methamphetamine

than the jury did. Alternatively, they argue that the district court was bound by

the law of the case to adhere to its calculation of drug w eight used in the first

sentencing because this court did not grant a mandate for de novo re-sentencing.

      1. Impact of Jury Verdict

      W estcott’s and M ook’s argument that the district court could not consider

facts contrary to the jury verdict at re-sentencing is foreclosed by our caselaw . In

United States v. M agallanez, we held that a sentencing court has broad discretion

to consider information regarding a defendant’s conduct, even conduct that

conflicts with a jury verdict. 408 F.3d 672, 684–85 (10th Cir. 2005). The

holding of M agallanez is based on the different standards of proof that apply at

trial and at sentencing. At trial, guilt is determined beyond a reasonable doubt.

Id. at 684. “[E]ven after United States v. Booker, 543 U.S. 220 (2005)[],

sentencing courts determine relevant facts based on a preponderance standard.”

Id. at 685. M ost other circuits agree. See, e.g., United States v. Valdez, 453 F.3d

252, 264 (5th Cir. 2006); United States v. Vaughn, 430 F.3d 518, 527 (2d Cir.

                                          -7-
2005); United States v. Price, 418 F.3d 771, 788 (7th Cir. 2005). W e therefore

reject the argument that the sentencing judge could not hold W estcott and M ook

accountable for more methamphetamine than the jury found was attributable to

them at trial.

       2. Law of the Case

       W estcott and M ook also contend that the district court could not depart

from its determination that 1.927 and 1.84 kilograms of methamphetamine w ere

attributable to them, respectively. In doing so, they allow that the district court

could determine that the established weights were of a substance containing

methamphetamine and not pure methamphetamine. They insist, however, that the

total weight attributable to each must remain unchanged because this court did not

grant a m andate to reconsider the total w eight of illegal substances attributable to

them. If W estcott and M ook are correct, the district court went beyond its

authority when it simultaneously found that W estcott and M ook were responsible

for a mixture and not pure methamphetamine and that the total amount of the

mixture attributable to each was 8.845 and 5.4 kilograms, respectively.

       As a general matter, re-sentencing on remand is done de novo. United

States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999). W e may, however, limit

district court discretion on remand pursuant to the mandate rule. Id. This rule

requires the district court to exercise its discretion in conformity with the



                                          -8-
appellate court’s remand. United States v. Hicks, 146 F.3d 1198, 1200 (10th Cir.

1998). 2 Our caselaw requires that we be specific if we intend to limit a district

court’s discretion on remand for re-sentencing. Compare United States v. Webb,

98 F.3d 585, 587 (10th Cir. 1996) (panel gives direction to resentence defendant

within range of 27 to 33 months) with United States v. Davis, 912 F.2d 1210,

1215 (10th Cir. 1990) (providing for general remand).

      Our remand in this case was not so specific. W e simply “set aside

Defendants’ sentences and remand for resentencing.” Windrix I, 405 F.3d at

1158. It is true that we urged the district court to “note a concern regarding the

determination of the purity of the methamphetamine prepared by Defendants.” Id.

This language, however, did not limit the district court’s discretion, but explicitly

advised it to consider using its broad discretion to revisit its earlier finding

regarding drug purity. That we invited a recalculation of drug purity does not

lead to the conclusion that we foreclosed any new thinking regarding the drug

amount. W e therefore reject the argument that the district court was required by




      2
         The mandate rule is a relative of the law of the case doctrine, which
W estcott cites. This doctrine requires that findings m ade at one point in litigation
m ay not be contested at a later stage, except under lim ited circum stances. United
States v. W ebb, 98 F.3d 585, 587 (10th Cir. 1996).


                                          -9-
the law of the case or the mandate rule to conform to its earlier calculation of

drug weight. Re-sentencing for all three Appellants was appropriately de novo. 3

B . E x Post Facto

      All three Appellants contend that the remedial holding of Booker violates

ex post facto principles of the Due Process Clause of the Constitution. This

argument is similarly foreclosed by our precedent. We first held that Booker does

not run afoul of ex post facto principles in United States v. Rines, 419 F.3d 1104,

1106–07 (10th Cir. 2005). W e recently explained the reasoning behind this rule

in United States v. Portillo-Quezada, 469 F.3d 1345, 1354–56 (10th Cir. 2006).

In short, nothing in Booker altered the statutory maximum sentences to which

W indrix, W estcott and M ook were subject for their criminal conduct. Their

exposure to punishment was therefore unchanged by re-sentencing and ex post

facto principles are not implicated on remand. See id. W e are thus unpersuaded

by the argument that the sentences violate ex post facto principles of the Due

Process Clause. 4


      3
        W e note the Fifth Circuit has recently articulated a different approach to
the m andate rule. See U nited States v. Pineiro, 470 F.3d 200 (5th Cir. 2006)
(holding that without explicit m andate, a district court’s authority on remand for
re-sentencing did not include authority to recalculate applicable advisory
Guidelines range). Suffice it to say that our precedent forecloses such an
approach.
      4
       W e sim ilarly reject W indrix’s argument that the district court could not
consider uncharged conduct in determ ining his sentence. “[W]hen a trial judge
                                                                        (continued...)

                                         -10-
C . D ru g Q uantity A ttribu tab le to W estcott

      W estcott contends the government did not present sufficient evidence to

allow the district court to attribute 8.845 kilograms of a mixture containing

methamphetamine to him. Under the advisory Guidelines, the government must

prove, by a preponderance of the evidence, that drug quantities for which a

participant in a drug conspiracy is held responsible were “reasonably foreseeable”

to him. See USSG § 1B1.3(A)(1)(B). In determining the weight of drugs

involved in a drug conspiracy, the district court may rely on estimates supported

by the facts of the case when actual drugs are not seized. United States v. Ruiz-

Castro, 92 F.3d 1519, 1534 (10th Cir. 1996). These estimates can be provided by

the testimony of witnesses and co-conspirators. Id. W e review the district court’s

factual findings regarding drug quantities for abuse of discretion.




      4
        (...continued)
exercises his discretion to select a specific sentence within a defined range, the
defendant has no right to a jury determination of the facts that the judge deems
relevant.” Booker, 543 U.S. at 233. In our cases interpreting Booker, we have
repeatedly recognized that sentence enhancements do not violate the Sixth
Amendment where the sentencing court applies the G uidelines in an advisory
fashion. United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006);
United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005); United States v.
M agallanez, 408 F.3d 672, 685 (10th Cir. 2005); United States v. Lawrence, 405
F.3d 888, 890 (10th Cir. 2005). In light of these holdings, W indrix has no right
to a jury determination of the facts the trial judge deems relevant in arriving at his
sentence, so long as that sentence is reasonable.

                                         -11-
         W estcott maintains that most of the 8.845 kilograms of methamphetamine

was not reasonably foreseeable to him because unlike his co-defendants, he did

not live in the trailer w here the methamphetamine was manufactured. W estcott

argues that trial testimony show ed only that he would arrive after most

methamphetamine “cooks” and clean the equipment used to make the drugs so as

to use the remaining “scraps” to satisfy his own drug habit. He concedes that trial

testimony also showed that he broke down ingredients for methamphetamine

several times, but contends that this means he did not participate in all the

manufacturing sessions during the life of the conspiracy as found by the district

court.

         W e disagree. The district court arrived at the 8.845 kilograms by reviewing

available testimony and attributing to W estcott the amount of methamphetamine

manufactured by the conspiracy during the period W estcott participated in it. The

district court did not commit clear error in attributing these amounts to W estcott

even if his role was primarily to clean up the equipment after a manufacturing

session. Other evidence established knowing participation in manufacturing the

methamphetamine, its preparation as well as the related clean up and disposal.

D . B ooker R eason ableness

         Finally, all three Appellants argue that their sentences are unreasonable.

W e review sentences for reasonableness in light of the factors set forth in 18



                                           -12-
U.S.C. § 3553(a). United States v. Galarza-Payan, 441 F.3d 885, 887 (10th Cir.

2006). A properly calculated Guideline sentence is “entitled to a rebuttable

presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006) (per curiam). In evaluating a district court’s calculation of the

applicable Guideline range, we review its factual conclusions for clear error and

its legal conclusions de novo. Id.

      W indrix, W estcott and M ook were properly sentenced within the applicable

Guideline range. 5 Their sentences are therefore presumptively reasonable. W e

address the reasonableness of each Appellant’s sentence in turn.

1. Windrix

      W indrix argues that Kristl runs afoul of Booker and Blakely v. Washington,

542 U.S. 296 (2004). Although we disagree with his premise, even if we found

the argument persuasive, we are bound by our precedent. See United States v.

M eyers, 200 F.3d 715, 720 (10th Cir. 2000) (noting that one panel may not

overrule another panel).




      5
        W estcott alone argues that his sentence was improperly calculated under
the Guidelines because the district court attributed more methamphetamine to him
than he could have reasonably foreseen. Because we hold W estcott could have
reasonably foreseen that 8.845 kilograms of methamphetamine were manufactured
by his co-conspirators, w e also hold his sentence to have been properly
calculated.

                                         -13-
      The fact of the matter is that W indrix cannot rebut the presumption of

reasonableness. The district court considered the relevant factors under 18 U.S.C.

§ 3553(a) in arriving at a 360-month sentence. That W indrix does not like the

outcome of the district court’s weighing of the § 3553(a) factors does not render

the district court’s sentence unreasonable. Because W indrix advances no

argument on appeal as to why the presumption of reasonableness should be

rebutted, we conclude his sentence is reasonable. Even without the presumption,

we are unpersuaded that reasonableness requires our reconsideration of the

sentence.

2. Westcott

      W estcott contends his sentence is unreasonable because the court failed to

grant him either minor-participant status pursuant to USSG § 3B1.2 or a non-

Guideline sentence under 18 U.S.C. § 3553(a). He argues that his sentence

should be reduced because he (1) participated in the conspiracy not for financial

gain, but to fuel his own drug habit, and (2) has tw o young sons in need of his

support. He cites cases in which appellate courts, including ours, have upheld

below-G uidelines sentences in similar factual situations.

      Put simply, the district court explicitly considered the relevant § 3553(a)

factors, including § 3553(a)(1) which mandates the court take into account “the

nature and circumstances of the offense and the history and characteristics of the



                                         -14-
offender” and determined that a non-Guideline sentence was not appropriate to

W estcott. W e will not second guess the district court’s decision against a non-

Guideline sentence where the presumption of reasonableness has not been

rebutted or where the sentence’s reasonableness has not been seriously

questioned. Accordingly, we conclude that W estcott’s sentence is reasonable w ith

or without the Kristl presumption.

3. M ook

      M ook contends his sentence is unreasonable because the court failed to

grant him a non-Guideline sentence under 18 U.S.C. § 3553(a). He argued at

sentencing and re-sentencing that his sentence should be reduced because he is (1)

a drug addict, (2) so old that his 292-month sentence will leave him in prison

until near his 70th birthday, and (3) sick and therefore not suited to prison life.

The district court explicitly considered the relevant § 3553(a) factors, including §

3553(a)(1). W e will not quibble with the district court’s decision against a non-

Guideline sentence absent compelling reasons. Accordingly, we conclude that

M ook’s sentence is reasonable regardless of our mandate to apply a presumption

of reasonableness to G uideline sentences.




                                          -15-
                     III. C onclusion

For the foregoing reasons, we AFFIRM the district Court.

                                       ENTERED FOR THE COURT

                                       Timothy M . Tymkovich
                                       Circuit Judge




                                -16-
