                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 5 2000
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 vs.                                                   No. 99-6064
                                                  (D.C. No. CR-98-84-C)
 GREGORY C. WOMACK,                                    (W.D. Okla.)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Defendant-Appellant Gregory C. Womack appeals from his convictions for

conspiracy to manufacture and distribute methamphetamine, 21 U.S.C. § 846

(count 1); manufacture of methamphetamine, 21 U.S.C. § 841(a)(1) (counts 2 &

5); and maintaining a house for the purpose of manufacturing methamphetamine,

21 U.S.C. § 856(a)(1); 18 U.S.C. § 2 (count 6). Mr. Womack was sentenced to


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
360 months imprisonment on counts 1, 2, and 5 and 240 months on count 6, all

sentences to run concurrently with one another and a state sentence being served.

He also was sentenced to 5 years supervised release on counts 1, 2, and 5, and 3

years supervised release on count 6, all to run concurrently. Mr. Womack raises

three issues on appeal: (1) the district court erred in finding that he was the

leader of the conspiracy; (2) the court improperly used the 1998, instead of the

1995, Sentencing Guidelines; and (3) the amount of drugs attributed to him was

not based on sufficiently reliable evidence. We affirm, but modify the judgment

to reflect that the correct total offense level should be 40, rather than 42. This

modification in no way alters the sentence.



                                     Background

      In July 1997, police found the remains of a drug laboratory in a salvage

yard in Oklahoma City. Upon investigation of the site, they discovered envelopes

addressed to a certain apartment on 10th Street in Oklahoma City. Police

investigated the apartment where they apprehended Gregory Womack, as well as

other codefendants. Mr. Womack was found to be in possession of marijuana,

methamphetamine and cocaine. Tr. at 27.



                                     Discussion


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A.    Leadership Role

      Mr. Womack argues that there was insufficient evidence for the trial court

to find that he was an organizer or leader of the conspiracy and enhance his

sentence by four levels under USSG § 3B1.1. “We review the district court's

conclusion that a defendant is a leader or organizer under § 3B1.1(a) for clear

error.” United States v. Tagore , 158 F.3d 1124, 1130 (10th Cir. 1998).   1



      Application note 4 to § 3B1.1 sets out various factors that a court should

consider in determining whether an individual is an organizer or leader under the

guidelines. See USSG § 3B1.1, comment. (n.4). These include decision-making

authority, recruitment of accomplices, right to a larger share of the fruits of the

crime, degree and nature of participation in planning and commission of the

offense, scope of the illegal activity, and degree of control over others. At

sentencing, the district court specifically noted:

             In this case, I have no question but that the evidence
             abounds that Mr. Womack . . . was the leader and
             organizer of an extensive conspiracy involving well
             more than five people. Specifically, he chose the sites;
             he either provided the precursor chemicals or directed
             others where and what to get; he profited more than the
             others; he directed sales as well as manufacture.



      1
       Mr. Womack argues that a § 3B1.1 determination is primarily legal and
review should be de novo. The issue of which standard of review to apply was
resolved in United States v. Cruz Camacho, 137 F.3d 1220 (10th Cir. 1998), and
we need not further address it here.

                                         -3-
Sentencing Tr. at 9. The evidence in the record supporting this finding is

substantial and there was no error.



B.    Applicable Sentencing Guidelines

      Mr. Womack argues that the court erred in sentencing him under the 1998

version of the Sentencing Guidelines (effective November 1, 1997) rather than

the 1995 version. Ordinarily, a defendant’s sentence should be based on the

version of the guidelines “that are in effect on the date the defendant is

sentenced.” 18 U.S.C. § 3553(a)(4);     see also USSG 1B1.11(a). However, this is

not the case if amendments enacted after the defendant’s crime would increase

the sentence in violation of the Ex Post Facto Clause.     United States v. Smith ,

930 F.2d 1450, 1452 n.3 (10th Cir. 1991).

      The 1995 guidelines provided that one gram of methamphetamine had a

drug equivalency equal to one kilogram of marihuana. USSG § 2D1.1, comment.

(n.10) (Drug Equivalency Table) (1995). This ratio was changed in 1997, so that

under the revised guidelines one gram of methamphetamine was equal to two

kilograms of marihuana. USSG § 2D1.1, comment. (n.10) (Drug Equivalency

Table) (1998). Mr. Womack’s sentence was based upon the 1998 guidelines,

under which he was found responsible for drugs equivalent to roughly 33,600

kilograms of marihuana, with a base offense level of 38.      See 8 R. at 7-8


                                           -4-
(presentence report). Combined with the four-level increase for being an

organizer or leader, this resulted in a final offense level of 42.

       If the 1995 guidelines had been applied, Mr. Womack would only have

been responsible for approximately 26,000 kilograms of marihuana drug

equivalency, with a base level of 36 and a final offense level of 40. This

difference in levels, however, was harmless. Mr. Womack had a Category IV

criminal history. Using either a 40 or a 42 final offense level under the 1995

guidelines, the applicable sentencing range was still 360 months to life.     See

Sentencing Tr. at 18 (district court specifically noting this at sentencing). As

there was no sentence increase, the Ex Post Facto Clause is not implicated. We

modify the judgment to reflect that Mr. Womack’s final offense level was 40, as

properly calculated under the 1995 guidelines.      See 28 U.S.C. § 2106 (power of

court of appeals to modify judgment).



C.     Reliability of Evidence of Drugs Attributable to Mr. Womack

       A sentencing judge’s determination of the amount of drugs attributable to a

criminal defendant is reviewed for clear error.     See United States v. Johnston ,

146 F.3d 785, 795 (10th Cir. 1998). The district court relied primarily upon the

testimony of two codefendants that pleaded guilty, Desiree Heasty and Shirley

Lay, in determining the proper amount of drugs to attribute to Mr. Womack. He


                                           -5-
claims that the district court erred because this testimony was not “sufficiently

reliable.” Aplt. Br. at 12.

       “We defer to the district court when reviewing the credibility of the

witness[es] on whose testimony it relies in making its factual findings.”   United

States v. Nieto , 60 F.3d 1464, 1469-70 (10th Cir. 1995). The district court

specifically found both Ms. Heasty and Ms. Lay to be credible witnesses, and we

defer to this finding. Sentencing Tr. at 20. There was no clear error.

       The judgment is modified to reflect the proper offense level of 40, and as

modified is AFFIRMED.


                                          Entered for the Court


                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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