                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    August 14, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



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

          Plaintiff - Appellee,
                                                      No. 05-4212
 v.                                          (D.C. No. 2:04-CR-00001-PGC)
                                                        (D. Utah)
 TY K . LEY LA N D ,

          Defendant - Appellant.



                              OR DER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Defendant-Appellant Ty Leyland appeals his 151-month sentence imposed

based on his convictions for various counts surrounding the operation of a

m etham phetamine laboratory. Having jurisdiction under 28 U.S.C. § 1291, we

AFFIRM .




      *
        After examining appellant’s brief and the 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. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
                                 BACKGROUND

      Following an investigation into iodine purchases in Salt Lake City, Utah,

officers obtained a warrant to search M r. Leyland’s home. Their search

uncovered various items associated with a methamphetamine laboratory,

including 15 grams of pseudoephedrine, 110 grams of red phosphorus, and 113.4

grams of iodine. M r. Leyland was charged in a four-count indictment with

attempted manufacture of methamphetamine (count 1) and possession of certain

precursor chemicals— pseudoephedrine, phosphorus, and iodine— with the intent

to manufacture methamphetamine (counts 2-4).

      At trial, officer Tyler Boelter, an expert in clandestine methamphetamine

labs, testified to the conversion of the precursor chemicals into

methamphetamine. Boelter specifically stated that “[r]ed phosphorus w ill

actually convert on a one-to-one ratio to methamphetamine, so for 110 grams of

red phosphorus you can actually produce 110 grams of actual

methamphetamine.” 1

      Following M r. Leyland’s conviction by a jury on all counts, a presentence

report (“PSR”) was prepared. W here, as here, there is no actual drug seizure, the

Sentencing Guidelines allow the court to “approximate the quantity of the

controlled substance.” See United States Sentencing Guidelines (“U .S.S.G.”)

§ 2D1.1 cmt. n.12. Based on a 1:1 conversion ratio between red phosphorus and

      1
          “Actual” methamphetamine refers to 100% pure methamphetamine.

                                        -2-
actual methamphetamine, the PSR stated that the 110 grams of red phosphorus

recovered during the search equated 110 grams of actual methamphetamine. 2 The

PSR thus recommended a base offense level of 32. U.S.S.G. § 2D1.1(c)(4) (level

32 if the offense involved “at least 50 G but less than 150 G of M ethamphetamine

(actual)”). 3 Combined with an additional 2-level enhancement for transportation

of a hazardous waste and a criminal history score of zero, the PSR calculated M r.

Leyland’s sentencing range to be 151 to 188 months.

      M r. Leyland raised several objections to the PSR, including an objection

“as a factual and legal matter” to the conversion factors used. Specifically, M r.

Leyland argued that the conversion rates were not found in the Guidelines and

thus should not have been used in the offense level computation. The response to

this objection was that “the conversion is determined by accepted practices in the

District of Utah and determined by the testimony in previous cases.”



      2
         The PSR also stated that the 15 grams of pseudoephedrine converted at a
2:1 ratio to 7.5 grams of actual methamphetamine, and that the 113.4 grams of
iodine converted at a 3:1 ratio to 34.4 grams of actual methamphetamine. The red
phosphorus amount was used in the computation of M r. Leyland’s base offense
level pursuant to § 2D 1.11 of the guidelines. See U.S.S.G. § 2D1.11 cmt. n.4(A )
(“[I]f the offense involves tw o or more chemicals, use the quantity of the single
chemical that results in the greatest offense level.”)
      3
        Generally, the guidelines range for possession of certain precursor
chemicals is determined pursuant to § 2D 1.11, which provides for base offense
levels based on the amount of the precursor chemicals alone. However, § 2D1.1,
which provides for base offense levels based on the amount of narcotics involved,
is applied when the offense in question is attempted manufacture and that section
yields a higher offense level. U.S.S.G. § 2D1.11(c)(1).

                                        -3-
      At sentencing, the district court found that the conversion rate and thus the

quantity of drugs involved had been established by a preponderance of the

evidence. Considering the Guidelines as advisory, and considering all of the

factors articulated in 18 U.S.C. § 3553(a), the court sentenced M r. Leyland to 151

months, “grouped” for counts 1, 2, 3, and 4.

                                   D ISC USSIO N

                                          I.

      M r. Leyland’s first argument is that the district court erred when it relied

on Officer Boelter’s trial testimony regarding the conversion ratio between red

phosphorus and methamphetamine to calculate the drug quantities that formed the

basis for M r. Leyland’s sentencing range. M r. Leyland’s specific objection is that

Officer Boelter is not sufficiently qualified to testify as to the conversion ratio;

“Officer Boelter is an expert in clandestine methamphetamine laboratories; but a

chemist he is not.” See United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir.

2005) (“W hen the actual drugs underlying a drug quantity determination are not

seized, the trial court may rely upon an estimate to establish the defendant’s

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.”) (quotations omitted) (emphasis added). 4

      4
       M r. Leyland contends that the district court should have instead calculated
drug quantities using the marijuana equivalency table contained in the sentencing
                                                                      (continued...)

                                         -4-
      As a threshold matter, the government argues that M r. Leyland did not

preserve his objection to the court’s method of determining drug quantity below,

and thus we should review this issue only for plain error. See United States v.

Tisdale, 248 F.3d 964, 975 (10th Cir. 2001) (noting that where a party “fails to

lodge a specific objection with the district court to its interpretation or application

of the sentencing guidelines,” we review only for plain error). M r. Leyland

counters that, although his objection was “not the model of specificity,” he

sufficiently preserved the issue by contending that the conversion rate and

conclusion as to quantity were, as a factual and legal matter, incorrect. Having

reviewed the proceedings below, we agree with the government that plain error

review is appropriate.

      No objection was raised when Officer Boelter testified at trial to the

conversion ratio. However, in response to the PSR’s statement that the 110 grams

of red phosphorus converted to 110 grams of methamphetamine M r. Leyland

objected

      as a factual and legal m atter to the inclusion in the PSR . . . of the
      “conversion factors” to methamphetamine (actual) of 50% for
      pseudoephedrine, 100% for phosphorus and 33% for Iodine. These
      conversion rates are not found in the Federal Sentencing guidelines and
      therefore should not be used in the computations of Base Guidelines
      under them. Further, each of these conversion rates, as used in the PSR

      4
       (...continued)
guidelines. Such a calculation, M r. Leyland claims, would have led to an
advisory guidelines range of 78-97 months, rather than the 151-188 months
determined by the district court.

                                          -5-
      herein, is clearly a fact, which were [sic] not admitted by the defendant
      in a guilty plea or a guilty verdict by a jury. To be used by the C ourt
      for sentencing under the guidelines, the conversion rates must be
      admitted by the defendant or proved to a jury beyond a reasonable
      doubt.

            The Court’s inclusion of the alleged weights, amounts and/or
      quantities of the pseudoephedrine, phosphorus and iodine an/or [sic] the
      conversion rates in the PSR or for purposes of application of the
      Federal Sentencing Guidelines w ould violate the defendant’s rights
      under the Sixth Amendment of the United States Constitution.

             The defendant agrees with the PSR that “Pursuant to U.S.S.G.
      Section 2D1.11 Note A, “to calculate the base level in an offense that
      involves two or more chemicals, use the quantity of the single chemical
      that results in the greatest level, regardless of w hether the chemicals are
      set forth in different tables or in different categories.

             The defendant, however, does object to the use of . . . Section
      2D1.1(3)(c)(4) to provide the base offense level in this case. The
      defendant has heretofore asserted that because the jury in this case did
      not find beyond a reasonable doubt the weight, amount and/or quantity
      of the List I and List [sic] Chemicals that the defendant w as found
      guilty of possessing in Counts Two, Three and Four, and the jury did
      not find beyond a reasonable doubt the conversion factors for those
      chemicals all as required by the Sixth Amendment of the Constitution
      of the United States, as argued above, that the weight, amount and/or
      quantity of those chemicals may not be used by the Court in computing
      the offense guidelines.

(Emphasis added.)

      It is not clear from this argument whether M r. Leyland’s objection related

only to judge fact-finding (a claim not at issue here), or whether M r. Leyland was

also raising an objection to the methodology and evidence used to calculate the

quantities (i.e., reliance on Officer Boelter’s testimony for the conversion ratio;

the claim that is at issue here). However, at sentencing, M r. Leyland clarified any

                                          -6-
ambiguity and made plain that he objected only to the court, rather than the jury,

finding the drug quantities:

      THE COURT: It looks to me like the main objection is a question of
      converting pseudoephedrine into methamphetamine. 5 And let me ask,
      it is the government’s burden to show some kind of a conversion factor
      appropriate conversion and so forth. How is – how is the government
      planning to proceed on that issue?

      M S. TAYLOR [counsel for the government]: W ell, Your Honor, that
      w as the evidence that was introduced at trial from the officer who
      testified in this matter. And all of the numbers that are provided in the
      presentence report are the numbers that he testified to on the stand. M y
      understanding from the memorandum submitted by defense counsel was
      that not necessarily that he had objected to those numbers being used,
      but that he objected on the grounds that those – those numbers were not
      found by a jury. And quite frankly, I don’t think under Booker 6 and
      under the sentencing guidelines the w ay it is now structured, I don’t
      think that the jury needs to make a finding of how much
      methamphetamine he actually intended to manufacture.

      THE COURT: It has been a while since we have done this case. Did
      the officer testify that you could convert 110 grams of phosphorus into
      a [sic] 110 grams of actual methamphetamine?

      M S. TAYLOR: He did.

      THE COURT: A ll right. Let m e hear from [defense counsel]. W ouldn’t
      that be enough?

      M R. BOW N [counsel for defendant]: W ell, Your Honor, I don’t recall
      that as being raised at the time of trial. If it has, certainly I stand
      corrected. How ever, we have objected both as a factual and a legal
      matter to the inclusion of the weights, amounts, quantities of these



      5
       The parties agree that the district court misspoke in referring to
pseudoephedrine instead of red phosphorus.
      6
          United States v. Booker, 543 U.S. 220 (2005).

                                        -7-
      particular drugs. Because under the Blakely, 7 Booker, Fen Fen [sic], 8
      Lynch 9 decisions, those must be actually found and returned by a jury
      before they can be considered as a –

      Court: That is not right.

(Emphases and footnotes added.) Further, after defense counsel made arguments

concerning whether the jury (rather than the judge) had to make findings as to

weights and quantities, the district court clarified M r. Leyland’s objection:

      THE COURT: All right. And that is – your objections are on the
      drug quantity and the gun and the transporting of hazardous waste,
      that is the lack of a jury finding on each of those three?

      M R. BOW N: Yes. Those are my objections, yes, they are . . . .

      These colloquies make clear that M r. Leyland’s argument about the “factual

and legal” error regarding the conversion rates went to the issue of jury fact-

finding, not to the actual facts found or the way the Guidelines were applied.

W hile objections below need not be “model[s] of specificity,” counsel must still

“sufficiently raise[] the issue” in order to preserve it for appeal. Tisdale, 248

F.3d at 976. W e therefore review the claim that the court erred in relying on

Officer Boelter’s testimony to establish the conversion ratio and thus the drug




      7
          Blakely v. W ashington, 542 U.S. 296 (2004).
      8
       United States v. Fanfan was consolidated with United States v. Booker.
See Booker, 543 U.S. at 220.
      9
          United States v. Lynch, 397 F.3d 1270 (10th Cir. 2005).

                                         -8-
quantities for plain error. 10 Under this standard of review , “before an appellate

court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is

‘plain,’ and (3) that ‘affects substantial rights.’” Johnson v. United States, 520

U.S. 461, 466-67 (1997) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)) (alteration omitted). “If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but only if (4) the error

“[]seriously affects the fairness, integrity, or public reputation of judicial

proceedings.[]” Id. (quoting Olano, 507 U.S. at 732) (alteration omitted). 11




      10
         Alternatively, even assuming M r. Leyland’s objection to the PSR did
raise a proper objection based the district court’s reliance on Officer Boelter’s
testimony to establish the conversion ratio, such an objection was withdrawn at
sentencing. In response to the court’s question about what M r. Leyland’s
objections to the drug quantities were, counsel made it clear that he was
contending only that there was a problem w ith the jury not having found the
quantities. W e review withdrawn objections, as well as those never made, for
plain error. See Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1101 n.7
(10th Cir. 2005).
      11
          The government argues that the issue of the district court’s reliance on
Officer B oetler’s testimony is an issue of fact, and thus no plain error occurred.
See United States v. Svacina, 137 F.3d 1179, 1187 (10th Cir. 1998) (“[F]actual
disputes not brought to the attention of the court do not rise to the level of plain
error.”). M r. Leyland, on the other hand, characterizes this issue as a question of
law. Specifically, he argues that a witness who is not proffered as a chemical
expert and who only briefly mentioned (with no explanation) that the conversion
ratio was 1:1 does not, as a matter of law, provide the “sufficient indicia of
reliability” necessary to allow the district court to rely on his testimony. Dalton,
409 F.3d at 1251.
       W e need not decide this issue, because even assuming this was an issue of
law for which we would undertake the Johnson/Olano four-prong plain-error
review, M r. Leyland’s claim fails.

                                          -9-
      A ssuming that M r. Leyland could satisfy the first three prongs, we

conclude that he cannot satisfy the fourth. See United States v. Gonzalez Edeza,

359 F.3d 1246, 1250-51 (10th Cir. 2004) (not resolving whether the first three

prongs of plain error review were met because the defendant failed to establish

the fourth prong). Here, Officer Boelter’s testimony as to the conversion ratio

stands unrebutted. Further, there was additional evidence that M r. Leyland was

involved with substantial quantities of methamphetamine— an associate of M r.

Leyland testified that he “cooked” two to eight ounces 12 of methamphetamine

“once or maybe twice a week” for a period of time. And the district court, in

imposing his sentence, noted that its drug quantity determination of only 110

grams of actual methamphetamine “is a conservative estimate since it assumes,

contrary to common sense, that th[e time M r. Leyland’s garage was raided and the

precursor chemicals were discovered] was the only time that this laboratory was

used at all. And common sense would suggest that it was used on other

occasions.” Given this, we simply cannot conclude that leaving any potential

error uncorrected would result in “manifest injustice.” M orales-Fernandez v.

I.N.S., 418 F.3d 1116, 1120 (10th Cir. 2005); see also United States v. W allace,

429 F.3d 969, 977 (10th Cir. 2005) (noting that our discretion to correct forfeited

errors “should be used sparingly and only in those circumstances in which a

miscarriage of justice would otherw ise result.”) (quotations omitted).

      12
           One ounce equals approximately 28.35 grams.

                                        - 10 -
                                         II.

      M r. Leyland also contends that the district court’s imposition of a 151

month total sentence “grouped for counts 1s, 2s, 3s, 4s,” was illegal because

count 4— possession of iodine with intent to manufacture methamphetamine—

carries a statutory maximum sentence of 10 years (120 months). 21 U.S.C. §§

802(35)(I) & 841(c). On this claim, the parties concede that no objection was

raised below and thus that plain error review is warranted.

      Here, even assuming the first two prongs of the plain error test are m et, M r.

Leyland has not shown how the “grouping” of the counts affected his substantial

rights. M r. Leyland acknowledges that the other three counts— for which we was

also convicted— carry a statutory maximum of 20 years. Had the district court

specifically imposed 151-month sentences on those three counts and a concurrent

120-month sentence on the fourth count, there would have been no change in the

actual 151-month sentence M r. Leyland received. See U.S.S.G. § 5G1.2 cmt. n.1

(“The combined length of the sentences (“total punishment”) is determined by the

court after determining the adjusted combined offense level and the Criminal

History Category. . . . [T]he total punishment is to be imposed on each count and

the sentences on all counts are to be imposed to run concurrently to the extent

allowed by the statutory maximum sentence of imprisonment for each count of




                                       - 11 -
conviction.”). As M r. Leyland has offered no explanation as to how the form of

sentencing affected his substantial rights, 13 we find that no plain error occurred.

                                   C ON CLU SIO N

      For the foregoing reasons, we AFFIRM .



                                        ENTERED FOR THE COURT



                                        David M . Ebel
                                        Circuit Judge




      13
      M r. Leyland argues only that “a sentence greater than the statutory
maximum, on its face, affects his substantial rights.”

                                         - 12 -
