                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 19, 2009
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-6152
 v.                                           (D.Ct. No. 5:07-CR-00212-HE-1)
                                                        (W.D. Okla.)
 CHARLEY COLLAMORE,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      A jury convicted Defendant-Appellant Charley Collamore of using a

communication facility to facilitate distribution of methamphetamine, in violation

      *
         This order and judgment is not binding precedent except under the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.
of 21 U.S.C. § 843(b) (Count 1); two counts of distributing methamphetamine, in

violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) (Counts 2 and 3); and one

count of possession with intent to distribute methamphetamine, in violation of 21

U.S.C. § 841(a)(1) (Count 4). The district court sentenced him at the low end of

the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range to

151 months imprisonment on Counts 2, 3, and 4 and forty-eight months

imprisonment on Count 1, to be served concurrently. He now appeals his drug-

related convictions and sentences on grounds the district court erred in: (1)

denying his motion to suppress evidence discovered during a vehicle search

involving Count 4; (2) denying his request to instruct the jury on the lesser

included offense of simple possession for Counts 2 and 3; and (3) calculating his

sentences by using other drug-related conduct and actual methamphetamine

quantities. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291 and affirm Mr. Collamore’s convictions and sentences.



                               I. Factual Background

     A. Facts Regarding Counts 1, 2, and 3 Regarding Use of Communication
                Facility and Distribution of Controlled Substance

      Federal, state, and local law enforcement agencies conducted an

investigation into the activities of a man known as “Postman” or “Chuck” whom

enforcement officials suspected of being a major distributor of methamphetamine


                                          -2-
and whom they later identified as Mr. Collamore. At the time of the investigation,

the United States Postal Service (Postal Service) employed Mr. Collamore as a

mail carrier at the Midwest City, Oklahoma branch. During the investigation into

Mr. Collamore’s methamphetamine activities, Brad Gaylord, an investigator with

the district attorney’s office acting in an undercover capacity, together with a

confidential informant, made two methamphetamine purchases from Mr.

Collamore. The first purchase occurred on January 11, 2007, when Investigator

Gaylord purchased 54.8 grams of a methamphetamine substance from Mr.

Collamore and another individual, Donnie Hellyer. As part of that transaction,

Mr. Collamore used a telephone as a means to contact the confidential informant

to give the location for the purchase. The second purchase occurred on March 14,

2007, when Investigator Gaylord purchased 54.9 grams of a methamphetamine

substance from Mr. Collamore. Authorities did not arrest or indict Mr. Collamore

for these offenses until he committed another drug-related offense on August 2,

2007, described as follows.



                    B. Facts Regarding Count 4 for Possession
                  with Intent to Distribute a Controlled Substance

      On August 2, 2007, around 5:00 p.m., Mr. Collamore called his supervisor,

Raymond “Mike” Klish, stating he was unable to complete his mail route. Mr.

Collamore’s speech was slurred, he seemed disoriented, and he could not explain


                                          -3-
the problem, state why he could not fulfill his job duties, or provide his exact

location. Mr. Klish and three other Postal Service employees immediately went to

look for Mr. Collamore and found him in his Postal Service vehicle slumped in a

seated position while the vehicle was parked and running. On examination, his

skin tone did not look good and he was “clammy and his pupils were restricted.”



      Due to his physical appearance, Mr. Klish believed Mr. Collamore incapable

of driving and also suspected the influence of drugs. Mr. Klish first transported

Mr. Collamore to the Midwest City Post Office. After conferring with his

supervisor, Virgil Cosma, Mr. Klish took Mr. Collamore to a medical facility for a

“fitness-for-duty” examination, which the Postal Service conducts for the purpose

of determining whether employees possess physical ailments preventing them from

performing their duties in a proper and safe manner. Mr. Collamore agreed to the

fitness-for-duty evaluation, but told Mr. Klish he would not take a drug

examination as a part of the evaluation. Mr. Cosma met them at the facility, and

Mr. Collamore filled out a release of medical information form.



      Shortly after Mr. Collamore’s arrival at the medical facility, David Hill, a

special agent with the Postal Inspector General’s Office, arrived to investigate

possible misconduct involving narcotics use and/or possession, which are both

criminal and administrative violations of Postal Service rules. Following Mr.

                                          -4-
Collamore’s examination, the physician’s assistant who conducted the examination

advised Agent Hill and Mr. Cosma that Mr. Collamore exhibited extremely high

blood pressure, a rapid pulse, and other symptoms consistent with being under the

influence of some type of substance, and he had refused a drug screening test.



      Agent Hill then advised Mr. Collamore: (1) of his suspected narcotics use;

and (2) that personal vehicles and containers on postal property are subject to

inspection and search pursuant to Postal Service policy. The policy to which

Agent Hill referred states:

      Vehicles and their contents brought into, while on, or being removed
      from restricted nonpublic areas are subject to inspection. Persons
      entering these areas who object and refuse to consent to the inspection
      of the vehicle, its contents, or both, may be denied entry. After
      entering the area without objection, consent to inspection shall be
      implied. A full search of the person and the vehicle driven or
      occupied by that person may accompany an arrest.

R., Vol. 1, Doc. 55 (Ex. 2) (emphasis added). A copy of this policy was posted at

various locations around the Postal Service facility where Mr. Collamore worked,

including on the back door through which most employees passed, near the time

clock where employees punched in and out of work each day, on the bulletin board

near the employee break room, and in a glass wall container in the lobby.



      When Agent Hill advised Mr. Collamore his personal vehicle was subject to

an inspection according to Postal Service policy, Mr. Collamore stated he was

                                         -5-
aware of the policy but asked if he could “drive away, never to be seen again.”

Agent Hill replied that they would search his postal vehicle, postal satchel, and

personal vehicle. He then asked Mr. Collamore for the keys to his personal

vehicle, which Mr. Collamore gave him.



      Mr. Collamore, a Midwest City police officer, Mr. Cosma, Mr. Klish, and

another Postal Service supervisor were present when Agent Hill searched Mr.

Collamore’s personal vehicle, which Mr. Collamore had parked in the restricted

nonpublic area of the Postal Service facility. Using the keys given to him by Mr.

Collamore, Agent Hill accessed the vehicle and saw two Ziploc bags containing

drug residue on the front passenger-side floorboard, which he had also viewed

through the window. Agent Hill also found a black zipper bag protruding from the

driver’s seat in which he discovered two Ziploc bags containing 4.3 grams of

methamphetamine and four tablets of hydrocodone, as well as various drug

paraphernalia, including a digital scale, a spoon, rubber bands, and a Postal

Service “Last Chance” agreement form signed by Mr. Collamore. Agent Hill also

found a glass pipe wrapped in tissue paper under the driver’s seat.



              C. Indictment, Bond Violation, and Additional Conduct

      Authorities charged Mr. Collamore with Count 1 for using a communication

facility to facilitate distribution of methamphetamine, in violation of 21 U.S.C.

                                         -6-
§ 843(b), when, on January 11, 2007, he used a telephone to facilitate the

distribution of methamphetamine to Investigator Gaylord; Count 2 for distributing

methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), when

he sold methamphetamine to Investigator Gaylord on January 11, 2007; Count 3

for distributing methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§ 841(a)(1), when he sold methamphetamine to Investigator Gaylord on March 14,

2007; and Count 4 for possession with intent to distribute methamphetamine, in

violation of 21 U.S.C. § 841(a)(1), when, on August 2, 2007, Agent Hill found

methamphetamine, hydrocodone tablets, and other drug paraphernalia in Mr.

Collamore’s personal vehicle. Following the multiple-count indictment against

him, authorities released Mr. Collamore on a personal recognizance bond subject

to pretrial services supervision and additional conditions of release.



      Authorities later learned from a confidential source that during the time Mr.

Collamore was released on bond he participated in a narcotics transaction on

November 27, 2007, in which he provided a bag containing 9.6 grams of

methamphetamine to the confidential source. In addition, the investigation into

Mr. Collamore’s activities also resulted in information he sold at least one pound,

or 453.6 grams, of methamphetamine to Lacy Ott sometime between 2003 and

2004; 2.5 grams of methamphetamine to Eric Chauvaux during the summer of

2005, which another person, Ryan Rider, witnessed; and a total of 121 grams to

                                          -7-
Mr. Rider on three separate occasions, including the summer of 2005, January

2006 to mid-August 2007, and between September and December 2007.



                     II. Procedural Background and Discussion

                               A. Motion to Suppress

      Prior to trial, Mr. Collamore filed a pretrial motion to suppress the evidence

obtained from his vehicle on grounds his consent to release medical information

was involuntary. 1 In addition, “[a]s a separate proposition” in his motion to

suppress, Mr. Collamore contended Postal Service policy did not authorize the

warrantless search of his private vehicle because it failed to “define the limits of

an inspection” and authorized a search “only if a person is arrested.” R., Vol. 1,

Doc. 53 at 22.



      The district court held a hearing on Mr. Collamore’s motion to suppress, at

which both Mr. Klish and Agent Hill testified as to the circumstances surrounding

the search. Following the hearing, the district court denied the motion to suppress,


      1
         Mr. Collamore asserted his consent in signing the release was unknowing
and involuntary due to his physical incapacitation and, therefore, could not be
used to justify the search of his personal vehicle on August 2, 2007. In making
this claim, he suggested the government bore the burden of proving: (1) his
consent to release his medical information was unequivocally, specifically, and
freely given; and (2) a reasonable person in Mr. Collamore’s situation would have
understood the scope of that consent. Mr. Collamore does not raise this issue on
appeal.

                                          -8-
finding “the defendant gave implied consent to have his vehicle inspected by

parking it in a restricted, nonpublic area on [P]ostal [S]ervice property.” R., Vol.

1, Doc. 58 at 39. It explained that while the Postal Service policy did not define

the term “inspection,” its explicit reference to inspection of “vehicles and their

contents” made it apparent the term encompassed “the limited search conducted”

by Agent Hill, who looked into the vehicle and saw two Ziploc bags with residue

on the floor and then removed the black zipper bag and pipe without dismantling

the vehicle or engaging in an intensive search. Id. at 40.



       It also held that even if Mr. Collamore did not impliedly consent to the

vehicle search by parking it in the restricted, nonpublic area on Postal Service

property, “the search was valid as a search conducted by a public employer as part

of an investigation of work-related misconduct.” Id. Relying on O’Connor v.

Ortega, 480 U.S. 709, 724-25 (1987), it explained public employers have an

interest in ensuring the effective and efficient operation of their agencies without

work-related misfeasance of their employees, and therefore, the employees’

legitimate expectations of privacy must be balanced against the public employers’

interests.



       On appeal, Mr. Collamore continues to argue the search of his private

vehicle was unconstitutional in violation of the Fourth Amendment. However, in

                                          -9-
support, Mr. Collamore claims for the first time on appeal that he did not give

implied consent to search his car when he parked it in the Postal Service facility

parking lot because the government failed to prove he would be “aware” that the

“scope of actions authorized under [the Postal Service’s inspection] policy”

extended to “opening the door of the vehicle, entering the vehicle, looking under

the seats or in closed compartments, or opening containers inside the vehicle.”

Apt. Br. at 17-18, 22. This argument is different than his argument before the

district court that the Postal Service policy failed to define the limits of an

inspection. 2 Because it was not specifically raised, the district court did not

address the issue of whether the government proved Mr. Collamore was aware of

the scope of the inspection conducted pursuant to Postal Service policy.



      Generally, when considering the denial of a motion to suppress evidence:

      [W]e consider the totality of the circumstances and view the evidence
      in a light most favorable to the government. We accept the district
      court’s factual findings unless those findings are clearly erroneous.
      The credibility of witnesses, the weight to be given evidence, and the
      reasonable inferences drawn from the evidence fall within the
      province of the district court. Keeping in mind that the burden is on
      the defendant to prove that the challenged search was illegal under the
      Fourth Amendment, the ultimate determination of reasonableness
      under the Fourth Amendment is a question of law reviewable de novo.


      2
         This argument is also substantially different than Mr. Collamore’s
argument that the government must prove a reasonable person in Mr. Collamore’s
situation would have understood the scope of his consent to release his medical
information.

                                          -10-
United States v. Higgins, 282 F.3d 1261, 1269-70 (10 th Cir. 2002) (quotation marks

and citation omitted). In reviewing the district court’s ruling on a motion to

dismiss, “we may affirm on any grounds supported by the record.” United States

v. White, 326 F.3d 1135, 1138 (10 th Cir. 2003) (quotation marks and citation

omitted).



      While this is the standard of review we generally apply to motions to

dismiss, as previously mentioned, Mr. Collamore raises a different argument in

support of his motion to dismiss than the one he presented to the district court.

Motions to suppress evidence under Rule 12 of the Federal Rules of Criminal

Procedure must be made prior to trial, and failure to make the motion prior to trial,

or to include a specific argument in that motion, is considered “waiver” of the

alleged error for which relief may be granted “for good cause shown.” See United

States v. Smith, 131 F.3d 1392, 1397 (10 th Cir. 1997) (relying on Fed. R. Crim. P.

12(b)(3) and (f) (now subsection (e))). In Smith, after determining the defendants

waived a newly raised suppression issue by failing to show cause why they failed

to raise it before the district court, we nevertheless reviewed that issue for plain

error. 3 Id. Plain error is (1) an error (2) that is plain (3) affecting a defendant’s

      3
         While the terms forfeiture and waiver are sometimes used
interchangeably, we have clarified that forfeiture arises from neglect for which
plain error review is appropriate, while waiver occurs “where a party has invited
the error that it now seeks to challenge, or where a party attempts to reassert an
                                                                        (continued...)

                                          -11-
substantial rights and (4) seriously affecting the fairness, integrity, or public

reputation of judicial proceedings. See id. Clearly, in this case, Mr. Collamore

has not shown cause as to why he failed to previously bring his newly raised

suppression argument. However, even if we review Mr. Collamore’s argument,

under either a clear error or plain error standard it must fail.



      In making this determination, we rely on the legal principles involved in

warrantless searches as they apply under the circumstances. While the Fourth

Amendment prohibits unreasonable searches and seizures, a warrantless search

may be reasonable if it fits within the established consensual search exception to

the warrant requirement. See Florida v. Jimeno, 500 U.S. 248, 250 (1991). A

consensual search must be freely and voluntarily given. See United States v.

Patten, 183 F.3d 1190, 1194 (10 th Cir. 1999). Whether the consent given is

voluntary is a question of fact to be determined from the totality of the

circumstances. See id. In determining the scope of a defendant’s consent, we ask

what a reasonable person would have understood under the circumstances

      3
        (...continued)
argument that it previously raised and abandoned below.” United States v. Zubia-
Torres, 550 F.3d 1202, 1205 & n.1 (10 th Cir. 2008), cert. denied, ___ S. Ct. ___,
2009 WL 789430 (Apr. 20, 2009) (No. 08-9389). In Zubia-Torres, this court
announced we will treat all cases in which the court reviews for plain error as
cases of forfeiture, even if the opinion uses the term “waiver.” See id. at n.1. In
this case, the record suggests the argument now asserted occurred through
forfeiture, rather than waiver, as it does not involve an invited error or abandoned
issue. See id.

                                          -12-
presented. See id. While consent to search must be freely and voluntarily given,

in some instances, “[a] defendant’s silence and acquiescence may support a

finding of voluntary consent.” Id. “Moreover, a defendant’s failure to object

when the search exceeds what he later claims was [a] more limited consent, is an

indication the search was within the scope of consent.” Id. (quotation marks and

citation omitted). Applying these principles, we held in Patten that a defendant

gave valid implied consent to search inside a suitcase when he silently and without

objection unzipped his suitcase after an officer asked, “Well, do you think we

could take a look at your suitcase there? I don’t want to necessarily look in it.”

Id. at 1194-95.



      In United States v. Verdin-Garcia, we examined whether a defendant, by

using the prison telephone, gave silent but implied consent to the monitoring or

recording of such a call when: (1) signs posted next to the telephones announced

“[a]ll calls may be recorded/monitored”; (2) the recorded message preceding all

outgoing inmate telephone calls warned all calls were subject to monitoring and

recording; and (3) all new inmates received handbooks providing prison policy

explaining all telephone calls were subject to monitoring and recording. 516 F.3d

884, 894 (10 th Cir.), cert. denied, 129 S. Ct. 161 (2008). In that case, we held it

unnecessary for the defendant to expressly give consent to such monitoring

because his use of the telephone sufficed to imply his consent. Id. at 894-95.

                                         -13-
      Similarly, in this case, the Postal Service policy at issue stated vehicles and

their contents located in restricted, nonpublic areas of Postal Service property

were subject to inspection and that after entering the area without objection,

“consent to inspection shall be implied.” Evidence at the suppression hearing

established a copy of this policy was posted at various locations around the Postal

Service facility where Mr. Collamore worked, including on the back door through

which most employees passed; near the time clock where employees punched in

and out of work each day; on the bulletin board near the employee break room;

and in a glass wall container in the lobby. Given these circumstances, it is

unlikely a reasonable person reading these warnings would have an expectation of

privacy with regard to his vehicle and its contents when he parked on such

property or that he would not understand parking on such property provided

implied consent to such an inspection.



      In addition, when Agent Hill told Mr. Collamore his personal vehicle was

subject to inspection pursuant to Postal Service policy, Mr. Collamore expressly

and unequivocally stated he was aware of the policy. At that time Mr. Collamore

also asked if he could drive away, never to be seen again, indicating he was aware

the scope of the inspection would involve more than merely an examination of the

outside of his vehicle. Moreover, after Agent Hill asked for his keys, Mr.

Collamore, like the defendant in Patten, silently and without objection handed

                                         -14-
over the keys to his vehicle, evidencing not only his implied consent to Agent

Hill’s examination of the inside of the vehicle, but his understanding an inspection

under Postal Service policy would involve using the key to open the door to look

inside. Finally, Mr. Collamore was present when Agent Hill searched his vehicle

and never objected when the search entailed what he later claimed went beyond

the scope of his consent. See Patten, 183 F.3d at 1194.



      For these reasons, it is clear Mr. Collamore has not carried his burden of

establishing the district court committed any error, clear or plain, in denying his

motion to suppress. Given our conclusion Mr. Collamore consented to the search

of his vehicle, we need not address his additional argument on whether the search

was valid as part of an investigation into work-related misconduct, other than to

agree with the district court as to its validity for the same reasons cited by it in

denying the motion to suppress.



                             B. Trial and Jury Instructions

      Prior to trial, Mr. Collamore sought a jury instruction for the lesser included

offense of simple possession of methamphetamine for Counts 2, 3, and 4. The

district court denied the use of the lesser included offense instruction on Counts 2

and 3, regarding Mr. Collamore’s distribution of methamphetamine charges,

stating that the lesser included offense instruction was not appropriate with respect

                                           -15-
to those distribution counts, but allowed the instruction with regard to Count 4 for

the charge of possession of methamphetamine with intent to distribute. The lesser

included offense instruction advised the jury that if it unanimously found the

defendant not guilty of Count 4, or, if it was unable to agree on Mr. Collamore’s

guilt with respect to that offense, then it must determine if he was guilty or not

guilty of the lesser included offense of simple possession of methamphetamine,

requiring the government to prove beyond a reasonable doubt that he knowingly

and intentionally possessed methamphetamine on or about August 2, 2007.

Unlike the jury instruction for Count 4 for possession with intent to distribute, it

did not require the government to prove Mr. Collamore intended to distribute the

methamphetamine he possessed.



      At trial, the government presented the testimony of Investigator Gaylord,

Agent Hill, Mr. Hellyer, Mr. Klish, and several others. Mr. Collamore did not

testify. The jury found Mr. Collamore guilty on all counts, including Count 4 for

possession of methamphetamine with intent to distribute, so the jury did not apply

the simple possession instruction.



      On appeal, Mr. Collamore contends the district court erred in not instructing

the jury as to the lesser included simple possession instruction with respect to

Counts 2 and 3 regarding his distribution of methamphetamine charges. While he

                                          -16-
concedes this court’s “authority provides that simple possession of a controlled

substance is not a lesser included offense of distribution of a controlled

substance,” he claims our prior precedent should not apply because he was a

“conduit for the buyer and seller” and that he “was merely helping a friend.” Apt.

Br. at 18, 28.



      We review de novo whether the offense on which the instruction is sought is

a lesser included offense for the crime charged, but we review a district court’s

determination of whether the evidence justifies the inclusion of a lesser included

offense instruction for an abuse of discretion. See United States v. Humphrey, 208

F.3d 1190, 1206 (10 th Cir. 2000). This court has clearly held a distinct difference

exists between distribution and possession charges so that “simple possession is

not a lesser included offense of [a] distribution [charge] ....” United States v.

Jackson, 213 F.3d 1269, 1297 (10 th Cir.), cert. granted and judgment vacated on

other grounds, 531 U.S. 1033 (2000).



      In this case, our holding in Jackson applies, so that Mr. Collamore’s

argument is precluded by this circuit’s precedent as a matter of law. Moreover,

overwhelming, uncontradicted evidence established Mr. Collamore distributed

methamphetamine to Investigator Gaylord on January 11, 2007, in conjunction

with Count 2; and again on March 14, 2007, in conjunction with Count 3. Thus, a

                                         -17-
lesser included offense instruction regarding simple possession would have been

inapplicable under the circumstances presented. In addition, nothing in the record

supports Mr. Collamore’s argument he acted merely as a conduit for a buyer and

seller and was helping a friend; nor has he presented any meaningful legal

argument as to why such a set of circumstances would change our application of

Jackson to his case. For these reasons, we conclude the district court clearly did

not abuse its discretion in declining to instruct the jury as to the lesser included

offense of simple possession on Counts 2 and 3.



                                    C. Sentencing

      In convicting Mr. Collamore on all counts, the jury also found him guilty of

distributing fifty grams or more of methamphetamine for both Counts 2 and 3.

Following Mr. Collamore’s conviction, a federal probation officer prepared a

presentence report in conjunction with the 2007 Guidelines to determine his

recommended sentence. In calculating the amount of controlled substance for

which Mr. Collamore was accountable, the probation officer noted a lab analyzed

the methamphetamine substances involved in the distribution offenses for Counts 2

and 3 and reduced them into actual grams of methamphetamine, so that 54.8 grams

of a methamphetamine substance consisted of 21.25 grams of actual

methamphetamine for the January 11, 2007 offense; and 54.9 grams of a

methamphetamine substance consisted of 29.27 grams of actual methamphetamine

                                          -18-
for the March 14, 2007 offense. Clearly, the probation officer applied the weight

of the actual methamphetamine because it provided a greater offense level than

application of the mixture weight. 4 See U.S.S.G. § 2D1.1 (Drug Quantity Tbl. note

(B)) (2007). Next, pursuant to U.S.S.G. § 2D1.1 cmt. n.10, the probation officer

converted all of the relevant conduct controlled substances into a marijuana

equivalent in order to obtain a single offense level, holding Mr. Collamore

accountable for the following drug amounts as converted:

     Date            Source              Drug Amount               Marijuana
                                                                   Equivalent
 01/11/07        Undercover buy    21.25 grams of actual       425 kilograms
                                   methamphetamine
 03/14/07        Undercover buy    29.27 grams of actual       585.4 kilograms
                                   methamphetamine
 08/02/07        Search of         4.3 grams of mixture or     8.6 kilograms
                 vehicle           substance
 08/02/07        Search of         4 tablets of hydrocodone    .0004 kilograms
                 vehicle
 2003-2004       Lacy Ott          453.6 grams of mixture      907.2 kilograms
                                   or substance
 11/27/07        Confidential      9.6 grams of mixture or     19.2 kilograms
                 source            substance
 Summer          Chauvaux          2.5 grams of mixture or     5 kilograms
 2005                              substance




      4
         Pursuant to § 2D1.1(c), 50.52 grams of actual methamphetamine results
in an offense level of 32, while 109.7 grams of a methamphetamine mixture
results in an offense level of 26. See U.S.S.G. § 2D1.1(c)(4) and (7) (2007).

                                        -19-
 Summer          Rider              18 grams of mixture or      36 kilograms
 2005                               substance
 1/06 to mid-    Rider              102.5 grams of mixture      205 kilograms
 August 2007                        or substance
 Between 9/07    Rider              .5 grams of mixture or      1 kilogram
 and 12/07                          substance
 TOTAL                                                          2,192.4 kilograms

R, Vol. 6 at 7-8 (¶ 21). Based on the total amount of 2,192.4 kilograms marijuana

equivalency, the probation officer calculated Mr. Collamore’s base offense level,

pursuant to § 2D1.1, at 32. See U.S.S.G. § 2D1.1(c)(4) (2007) (providing for a

base offense level of 32 if the offense involved “[a]t least 1,000 KG but less than

3,000 KG of Marihuana”). The probation officer also determined no adjustments

applied, resulting in a total offense level of 32. The probation officer then

determined Mr. Collamore’s criminal convictions resulted in a subtotal of two

criminal history points, but because he committed the instant offense while on

probation imposed in two other cases, two additional points were added, for a total

of four criminal history points, establishing a criminal history category of III. See

U.S.S.G. Ch. 5, Pt. A (2007) (indicating four criminal history points establishes a

criminal history category of III). Mr. Collamore’s criminal history category of III,

together with his total offense level of 32, resulted in a Guidelines range of 151 to

188 months imprisonment.



      Mr. Collamore filed objections to the presentence report, including an

                                         -20-
objection to conversion of the methamphetamine substances into actual

methamphetamine for the distribution offenses under Counts 2 and 3, and the use

of drug quantities associated with his relevant conduct, rather than just the

quantities associated with the instant offenses. At the sentencing hearing, Mr.

Collamore continued his objections to the use of the actual methamphetamine and

relevant conduct drug quantities used to calculate his sentence, which the district

court overruled as a matter of law. The government then presented witness

testimony in support of the actual and relevant conduct drug quantities used in

calculating his sentence, including the testimony of Ryan Rider and Lacy Ott. The

district court found the witnesses to be “generally credible” for the purpose of

applying the actual and relevant conduct drug quantities but excluded for lack of

credible evidence the 9.6 grams of methamphetamine from the November 27, 2007

transaction Mr. Collamore committed while out on bond. As a result, the district

court based Mr. Collamore’s sentence on a total marijuana equivalency of 2,173.2

kilograms, rather than the 2,192.4 kilograms recommended in the presentence

report. The district court then imposed sentences at the low end of the applicable

Guidelines range of 151 months incarceration for Counts 2, 3, and 4 and forty-

eight months incarceration for Count 1, to be served concurrently.



      On appeal, Mr. Collamore continues to challenge the use of the actual

methamphetamine and relevant conduct drug quantities. In support, he asserts his

                                         -21-
sentence violates his Fifth Amendment right to due process and his Sixth

Amendment right to have the facts legally essential to punishment be determined

by a fact-finder other than the district court.



      We review sentences for reasonableness. See United States v. Smart, 518

F.3d 800, 803 (10 th Cir. 2008). “Our appellate review for reasonableness includes

both a procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” Id. In determining whether the district court properly applied

the Guidelines in calculating the sentence, we generally review its legal

conclusions de novo and its factual findings for clear error, see United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam), including its

determination of the quantity of drugs for which the defendant is held accountable

under the Guidelines. See United States v. Todd, 515 F.3d 1128, 1135 (10 th Cir.

2008). “Drug quantities employed by the district court to calculate the applicable

Guidelines range may be said to be clearly erroneous only when the district court’s

finding was without factual support in the record or we are left with the definite

and firm conviction that a mistake has been made.” Id. (quotation marks and

citation omitted).



      We have held the Supreme Court’s holding in Booker does not prohibit the

                                           -22-
district court from making the same factual findings and applying the same

enhancements and adjustments to a defendant’s sentence as it did before Booker,

as long as it does not apply the Guidelines in a mandatory fashion. See United

States v. Lawrence, 405 F.3d 888, 907 (10 th Cir. 2005). “[W]hen a district court

makes a determination of sentencing facts by a preponderance test under the now-

advisory Guidelines, it is not bound by jury determinations reached through

application of the more onerous reasonable doubt standard.” United States v.

Magallanez, 408 F.3d 672, 685 (10 th Cir. 2005).



      With specific regard to relevant conduct drug quantities, “[i]n the aftermath

of Booker, we have routinely permitted a district court to enhance a defendant’s

sentence using uncharged conduct proven to the court by a preponderance of the

evidence.” United States v. Rodriguez-Felix, 450 F.3d 1117, 1131 (10 th Cir. 2006).

In United States v. Rines, we rejected an argument the Fifth Amendment forbids

using judicial fact-finding regarding relevant conduct to increase a sentence under

an advisory Guidelines scheme. 419 F.3d 1104, 1106-07 (10 th Cir. 2005).

Similarly, in that case and United States v. Bush, we explicitly held no Sixth

Amendment violation occurs from a judicial determination of the relevant conduct

quantity of drugs. See id.; 405 F.3d 909, 923 (10 th Cir. 2005). These

constitutional determinations would likewise apply to the application of U.S.S.G.

§ 2D1.1, which advises the district court to use whichever drug quantity

                                        -23-
calculation; i.e., actual or mixture, which results in the higher offense level. See

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



      Based on application of the foregoing legal principles, we conclude the

district court did not err or otherwise violate Mr. Collamore’s constitutional rights

in factually determining the actual and relevant conduct drug quantities. The

government submitted witness testimony at the sentencing hearing in support of

those quantities which the district court deemed credible. It then calculated the

actual and relevant conduct drug quantities under the applicable, advisory

Guidelines, using the acceptable preponderance of the evidence standard. Because

those quantities have factual support in the record, they are not clearly erroneous

nor do they otherwise leave us with a definite and firm conviction that a mistake

was made. Having determined Mr. Collamore’s sentence is within the correctly-

calculated Guidelines range, we may apply a presumption of substantive

reasonableness to his sentence, which he has not rebutted for the purpose of

demonstrating his sentence is unreasonable under the § 3553(a) factors. 5 For these


      5
         “A challenge to the sufficiency of the § 3553(a) justifications relied on
by the district court implicates the substantive reasonableness of the resulting
sentence.” Smart, 518 F.3d at 804. If the sentence is within the correctly-
calculated Guidelines range, we may apply a presumption of reasonableness. See
Kristl, 437 F.3d at 1054-55. The defendant or the government may rebut this
presumption by demonstrating the sentence is unreasonable when viewed under
the § 3553(a) factors. See id.


                                          -24-
reasons, we conclude the district court did not err in imposing Mr. Collamore’s

sentences at the low end of the Guidelines range to 151 months incarceration for

Counts 2, 3, and 4 and forty-eight months incarceration for Count 1, to be served

concurrently.



                                  III. Conclusion

      For these reasons, we AFFIRM Mr. Collamore’s convictions and sentences.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




                                        -25-
