                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      April 7, 2009
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 08-3162
 v.                                            (D.C. No. 07-CR-20065-JWL-2)
                                                          (D. Kan.)
 EDWARD MENDEZ,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


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


      Defendant-Appellant Edward Mendez appeals his sentence. Mr. Mendez

pled guilty to one count of conspiracy to distribute and to possess with intent to

distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846 (“Count

I”) and one count of possessing with intent to distribute more than 500 grams of

cocaine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (“Count II”). 1 R. Doc.


      *
        This order and judgment is not binding precedent, except under the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.
      **
         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.
1; 1 R. Doc. 59. The district court imposed a sentence of 240 months on each of

Counts I and II, to run concurrently. 1 R. Doc. 117. The sentence was calculated

as follows. The Presentence Investigation Report (“PSR”) held Mr. Mendez

accountable for 27.6 kilograms of cocaine, 3.175 kilograms of “ice

methamphetamine,” and 2.2 kilograms of marijuana. 3 R. at ¶ 45. Converted to

its marijuana-equivalent, the total amount of drugs exceeded 30,000 kilograms of

marijuana—resulting in a base offense level of 38 under U.S.S.G. § 2D1.1(c)(1).

3. R. at ¶ 45. Two offense levels were added under U.S.S.G. § 2D1.1(b)(1) for

possession of a firearm during drug transactions. 3 R. at ¶ 46. Pursuant to

U.S.S.G. § 3E1.1, the PSR adjusted the offense level down three levels for

admitting culpability, resulting in a total offense level of 37. 3 R. at ¶¶ 51, 54.

      Mr. Mendez objected to the firearm enhancement, asserting that he had

never carried a gun. 3 R. at ¶ 98. He also objected to the total amount of drugs

attributed to him, claiming that he did not engage in certain of the transactions

recited in the PSR. 3 R. at ¶ 103. After a hearing, the district court overruled

both objections, 2 R. Doc. 141 at 182, and adopted the PSR without change, 3 R.

attach. at 1 (Statement of Reasons). On appeal, Mr. Mendez argues that the

district court erred in (1) calculating the amount of drugs that he should be

accountable for and (2) enhancing his sentence for possession of a firearm. He

also argues that (3) his sentence was unreasonable under the totality of the

circumstances.

                                          -2-
I.    Miscalculation of Drug Quantity

      As to the miscalculation of the drug quantity, Mr. Mendez argues that the

district court erred by finding that the methamphetamine attributed to him had an

average purity of 60%. The government concedes that the purity average was

inadvertently miscalculated. Because Mr. Mendez did not raise this issue below,

our review is for plain error. United States v. Mendoza, 543 F.3d 1186, 1190-91

(10th Cir. 2008); see Fed. R. Crim. P. 52(b). Plain error is “(1) an error, (2) that

is plain, which means clear or obvious under current law, and (3) that affects

substantial rights.” United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007)

(internal quotation marks omitted).

      Mr. Mendez has satisfied this standard. The district court attributed 4½

pounds of methamphetamine to Mr. Mendez, based on the testimony of a Mr.

Cardenas. 2 R. Doc. 141 at 184-85. The district court then converted the 4½

pounds of methamphetamine to its marijuana equivalent using a 60% purity ratio;

this calculation resulted in a marijuana equivalent of 24,494.4 kilograms. Id. at

185-86. This was error. A review of the lab report entered into evidence shows

that the correct purity average was actually 41%—which would lead to a

marijuana equivalent of 16,737.8 kilograms. Aplt. Br. attach. at 1-2 (Laboratory

Analysis Report). The error was also plain, because it was “clear and obvious at

the time of the appeal.” Morales-Fernandez v. INS, 418 F.3d 1116, 1124 (10th

Cir. 2005). Finally, the error affected the substantial rights of Mr. Mendez

                                         -3-
because it led the district court to calculate an incorrect base offense level. Had

the district court used the proper average purity percentage, the base offense level

would have been 36, not 38. 1 Therefore, the defect in the sentencing probably

altered the final sentence he received. See United States v. Serrata, 425 F.3d 886,

917 (10 th Cir. 2005) (“In order to demonstrate that an error affected his

substantial rights, a defendant must show a reasonable probability that the defects

in his sentencing altered the result of the proceedings.” (internal quotation marks

omitted)). Accordingly, Mr. Mendez must be resentenced.



      1
       The explanation provided by Mr. Mendez and accepted by the government
adequately summarizes the proper calculation:

      The Court attributed four and one half pounds of methamphetamine to
      defendant. Each pound is 453.6 grams. 453.6 times four and one half
      equals 2,041.2 grams which when multiplied by the correct average
      purity, forty one percent, equals 836.89 grams of methamphetamine
      actual. The conversion table at U.S.S.G. § 2D1.1 provides that each
      gram of methamphetamine actual is the equivalent of 20 kilograms of
      marijuana. 836.89 times 20 equals 16,737.8 kilograms of marijuana.
      The District Court found the cocaine in this case was the equivalent
      of 5,600 kilograms of marijuana. Additionally, the District Court
      found [Mr. Mendez] distributed 90.72 kilograms of marijuana.
      Adding the marijuana equivalents of methamphetamine and cocaine in
      this case equal 22,337.80 kilograms of marijuana. Adding the 90.72
      kilograms of marijuana to this total yields a total drug quantity of
      22,428.5[2] kilograms of marijuana or a level 36 under U.S.S.G.
      § 2D1.1. Thus, the District Court’s conclusion that [Mr. Mendez]
      should be accountable for over 30,000 kilograms of marijuana and
      thereby have a base offense level of 38 is erroneous. [Mr. Mendez’s]
      guideline sentence is overstated by two levels because of this error.

Aplt. Br. 13-14; Aplee Br. 13.

                                         -4-
II.   Firearm Enhancement

      Mr. Mendez next argues that the district court erred by applying a firearm

enhancement under U.S.S.G. § 2D1.1(b)(1). “We review factual findings under

U.S.S.G. § 2D1.1(b)(1) for clear error.” United States v. Topete-Plascencia, 351

F.3d 454, 458 (10th Cir. 2003) (internal quotation marks and brackets omitted).

“A finding is not clearly erroneous unless it is without factual support in the

record or if, after reviewing all of the evidence, we are left with the definite and

firm conviction that a mistake has been made.” In re Ford, 492 F.3d 1148, 1153

(10th Cir. 2007) (internal quotation marks omitted).

      If a defendant is convicted for an offense involving drugs, the Guidelines

provide a two level enhancement “[i]f a dangerous weapon (including a firearm)

was possessed[.]” U.S.S.G. § 2D1.1(b)(1). The enhancement “should be applied

if the weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” Id. § 2D1.1 cmt. n.3. “The government bears the

initial burden of proving possession by a preponderance of the evidence[.]”

United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997). To meet this

burden, the government need only show “that a temporal and spatial relation

existed between the weapon, the drug trafficking activity, and the defendant.”

United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1185 (10th Cir. 2004)

(internal quotation marks omitted). If possession is established, the burden shifts

to the defendant to show “that it is clearly improbable the weapon was connected

                                         -5-
with the offense.” Id. (internal quotation marks omitted).

      The district court relied principally on two witnesses in making the factual

determination that Mr. Mendez possessed a weapon in connection with the drug

offenses. One witness (Mr. Klepac) testified that Mr. Mendez “would bring his

.45 with him on a few occasions” when a drug deal occurred, 2 R. Doc. 141 at 51,

and that Mr. Mendez would usually carry the semi-automatic pistol in his

waistband, id. at 52-53. Furthermore, another witness (Mr. Hogan) testified that

drug dealers “usually carry” weapons, id. at 80, though he did not observe Mr.

Mendez carrying a weapon, id. at 89. The district court discounted Mr. Mendez’s

own testimony that he did not carry a weapon, finding his testimony not credible.

Id. at 183, 188.

      “The determination of a witness’s credibility is a matter left to the sound

discretion of the district court.” Topete-Plascencia, 351 F.3d at 458; see United

States v. Payton, 405 F.3d 1168, 1171 (10th Cir. 2005). Here, the district court

found Mr. Klepac’s testimony credible because of its specificity and because it

was supported by Mr. Hogan’s testimony. 2 R. Doc. 141 at 188-89. Moreover,

the district court expressed skepticism regarding Mr. Mendez’s testimony as an

effort to minimize his involvement. Id. at 183. We normally defer to the district

court’s credibility determinations and we see no reason not to do so here. The

testimony was sufficient to satisfy the government’s burden to show possession

by a preponderance of the evidence, and Mr. Mendez did not meet his burden of

                                        -6-
then showing that it is clearly improbable the weapon was connected with the

offense. Therefore, the district court’s assessment of the firearm enhancement

pursuant to U.S.S.G. § 2D1.1(b)(1) was not clearly erroneous.

III.   Reasonableness of the Sentence

       Finally, Mr. Mendez argues that his sentence was unreasonable because he

“only admitted to being involved in the distribution of three kilograms of

cocaine,” and because the district court “relied upon the testimony of three

convicted drug dealers to quadruple [his] sentence above and beyond what would

be justified by the conduct [he] admitted.” However, we need not reach this

issue. “When a district court . . . err[s] in calculating the applicable Guidelines

range, we must remand for resentencing, whether or not the district court’s chosen

sentence is substantively reasonable, unless we are able to ascertain that the

court’s calculation error was harmless.” United States v. Todd, 515 F.3d 1128,

1135 (10th Cir. 2008); see United States v. Kristl, 437 F.3d 1050, 1054-55 (10th

Cir. 2006) (per curiam). Here, the calculation error was not harmless, so we

remand without determining the substantive reasonableness of the sentence.

       Accordingly, we REMAND to the district court for resentencing in

accordance with this order and judgment.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge

                                         -7-
