                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 4 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 96-1198
                                                 (D.C. No. 95-CR-34-02-S)
 JAMES CARL MAASS,                                       (D. Colo.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges.




      James Carl Maass (“Maass”) appeals his conviction and sentence in federal

district court on counts of conspiracy to distribute methamphetamine, possession

with intent to distribute methamphetamine, and use of a weapon in the course of

drug-related crimes. We affirm Maass’ conviction and sentence.




      *
        This order and judgment is not binding precedent, except under the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.
                                BACKGROUND

      In November, 1994, undercover agent Thomasson began building

connections with a group of individuals that law enforcement officials suspected

of operating an illegal firearms ring in Colorado Springs, Colorado. Thomasson

soon began to suspect that the group was more involved in selling

methamphetamine than firearms, and adjusted his investigation accordingly.

During the course of the investigation, a member of the group offered to

introduce the agent to Maass, who was the ring’s main supplier of drugs. Maass

agreed to arrange a sale of methamphetamine to Thomasson. There was evidence

presented that Maass carried firearms during his drug deal with Thomasson, and

that he was prepared to shoot or kill to protect his methamphetamine business.

      The first sale to Thomasson took place at the parking lot of an arcade in

Manitou Springs, Colorado, on the evening of December 5, 1994. This

transaction was attended by Maass, Danny Flores (“Flores”) and another

unidentified person. During this transaction, Maass carried a gun, and indicated

to Thomasson his willingness to use it if passers by got too nosey. Thomasson

gave Maass an agreed-upon sum of money. Maass then turned the money over to

Flores and the unidentified person in exchange for methamphetamine.

      On December 9, 1994, while visiting the home of co-conspirator Shannon

McKane, Maass was arrested by Colorado Springs police officers for possession


                                       -2-
of methamphetamine and drug paraphernalia. After his release on bond, Maass

learned that one Sherrie Holmes might have been responsible for his and

McKane’s arrest. Maass kidnaped Ms. Holmes, then interrogated her in an effort

to ascertain the extent of her cooperation with the police. Maass murdered Ms.

Holmes on January 3, 1995. 1

      On January 5, 1995, Maass met with Thomasson and an undercover officer

from the Colorado State Patrol to discuss ways of raising money to pay for

Shannon McKane’s bond. Maass offered Thomasson a package deal of a stolen

automobile, weapons, and methamphetamine to raise the necessary money.

Thomasson agreed to the deal. When Maass showed up in Manitou Springs on

January 10, 1995 to consummate the deal, he was arrested by Thomasson and

other law enforcement personnel.

      Maass was indicted for conspiracy to distribute methamphetamine,

possession with intent to distribute methamphetamine, and related firearms

offenses. Maass was convicted on all counts. At sentencing, the district court

calculated his offense level at 43, an automatic life sentence, based upon his




      1
        Maass was convicted of first degree murder in Colorado state court for the
killing of Ms. Holmes. In the federal trial, the testimony about Maass’ murder of
Ms. Holmes came in at the sentencing stage of trial rather than at the guilt phase.

                                        -3-
killing of Ms. Holmes in connection with his methamphetamine distribution

offenses. Maass now appeals his convictions and sentence. 2

                                     ANALYSIS

                                   I. Convictions

                                 A. Evidentiary issues

      Maass claims that the district court’s admission of evidence regarding his

involvement in illegal sales of weapons and stolen cars, his threats to use

weapons against anyone who informed on him, and the affiliation of certain

members of the conspiracy with the Banditos street gang, all violated Fed. R.

Evid. 404(b).

      We review a trial court’s decision to admit prior act evidence for abuse of

discretion. See United States v. Johnson, 42 F.3d 1312, 1315 (10th Cir. 1994).

We note at the outset that Rule 404(b) applies only to evidence of crimes, wrongs,

or acts that are extrinsic to the crimes charged. 3 See United States v. Orr, 864

      2
        On July 10, 1998, Maass filed a motion with this court for leave to reopen
briefing to supplement his brief on appeal with this court’s opinion in United
States v. Singleton. Maass did not raise this issue in his briefs or at oral
argument, and we will not allow him to raise the issue for the first time at this late
date. Therefore, his motion to reopen briefing is denied.
      3
          The pertinent part of Fed. R. Evid. 404(b) reads as follows:

            Other crimes, wrongs, or acts. Evidence of other crimes,
      wrongs, or acts is not admissible to prove the character of a person
      in order to show action in conformity therewith. It may, however, be
                                                                      (continued...)

                                         -4-
F.2d 1505, 1510 (10th Cir. 1988). Thus, Rule 404(b) does not apply to evidence

admitted as proof of the charged conduct. “‘An uncharged act [is not] extrinsic if

it was part of the scheme for which a defendant is being prosecuted, or if it was

‘inextricably intertwined’ with the charged crime such that a witness’ testimony

‘would have been confusing and incomplete without mention of the prior act.’”

United States v. DeLuna, 10 F.3d 1529, 1532 (10th Cir. 1993) (quoting United

States v. Record, 873 F.2d 1363, 1372 n.5 (10th Cir. 1989)). An act done in

furtherance of an alleged conspiracy “is not an ‘other’ act within the meaning of

Rule 404(b), rather, it is part of the very act charged.” United States v. Molina,

75 F.3d 600, 602 (10th Cir. 1996) (citation omitted).

      Maass claims that the evidence pertaining to the sale of firearms and stolen

guns and vehicles should not have been allowed because he was not charged with

possession or sale of stolen firearms or vehicles. Maass relies mainly upon this

court’s decision in United States v. Sullivan, 919 F.2d 1403, 1416-17 (10th Cir.

1990). The facts of Sullivan can readily be distinguished from those in the

present case. In Sullivan, defendants were charged, inter alia, with conspiracy to

manufacture, possess, and distribute amphetamine in Oklahoma. See id. at 1408.



      3
       (...continued)
      admissible for other purposes, such as proof of motive, opportunity,
      intent, preparation, plan, knowledge, identity, or absence of mistake or
      accident . . . .

                                        -5-
At trial, the government repeatedly referred to the participation of one of the

defendants in a separate and unrelated drug “cook” in Mississippi. See id. at

1413-14. The district court had reluctantly acquiesced in the government’s

argument that this evidence was part of the “history of the conspiracy.” See id. at

1413. We reversed, holding that this bald assertion by the prosecutor was

insufficient to meet the requirements of either Rule 403 or Rule 404(b). Because

“the prosecutor made no effort to explain a probative purpose or connection of the

earlier conduct in Mississippi to this case,” we found that evidence to be clearly

prejudicial and ordered a new trial. See id. at 1416. Because it was obvious that

the “Mississippi cook” evidence at issue was not related to the crime charged, we

did not address the possibility that it could be admitted as proof of the charged

crimes.

      In the present case, the evidence of Maass’ involvement with the sale of

stolen weapons and vehicles was very much inextricably intertwined with the

crimes charged. Thomasson’s testimony as to the ring’s involvement in illegal

firearm sales was necessary to an understanding of how Thomasson, an agent

whose regular duties include the investigation of violations of firearms,

explosives and arson laws, became involved with an investigation into a drug ring




                                         -6-
in the first place. 4 Moreover, evidence of Maass’ plan to sell stolen guns and cars

was part and parcel of his efforts to raise some needed cash to get a co-

conspirator out of jail. Unlike the remote, unconnected prior conduct at issue in

Sullivan, the evidence of Maass’ involvement in the sale of stolen firearms and

cars was proof of an act done in furtherance of the conspiracy and was

intrinsically intertwined with Thomasson’s testimony; his testimony would have




      4
        Maass did not contemporaneously object to this testimony by Thomasson,
thus on appeal he may only challenge it as plain error. See United States v.
Russell, 109 F.3d 1503, 1514 (10th Cir. 1997).

                                        -7-
been confusing and incomplete without mention of it. 5 See Record, 873 F.2d at

1372 n.5.

      Maass next attacks the admission of his tape-recorded comments regarding

his use of firearms during his money-collecting activities and his threat to shoot

or kill anyone who snitched on him. In response to Maass’ objection, the district

court struck portions of the tape in which Maass spoke about his ammunition of

choice, but allowed the rest because it elucidated how Maass ran his drug

distribution business. This court has held that evidence of the defendant’s use of

threats of violence in furtherance of the drug distribution conspiracy with which


      5
         The district court, immediately after the evidence of the proposed
car/gun/drug package deal was admitted, issued the following limiting instruction
to the jury:

             We have received evidence indicating some defendants may
      have allegedly been involved in the proposed sale of stolen
      automobiles and sale of illegal firearms. The defendants in this case
      are not charged with the sale of stolen automobiles nor are they
      charged with the sale of illegal firearms. You may not consider this
      evidence for any other purpose than the charges in the indictments.
      Sometimes evidence is offered for limited purposes. In this case, the
      limited purpose for which this evidence is offered is insofar as it
      relates to the charges in this case involving allegations concerning
      the possession of and with intent to distribute methamphetamine and
      conspiracy to distribute methamphetamine and the use or possession
      of firearms in furtherance of these alleged drug crimes. For this
      limited – for these limited purposes, you may give this evidence as
      much weight as you think it is entitled.

Thus, the court limited any improper impact the admission of this evidence may
have otherwise had upon the jury.

                                        -8-
he was charged is neither “an ‘other’ act within the meaning of Rule 404(b)” nor

is it “improper character evidence under Rule 404(b).” Molina, 75 F.3d at 602;

see also United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir. 1994) (“[T]he

jury in a criminal case is entitled to know about the context of a crime and any

events that help to explain the context. . . . Moreover, we have noted that as

direct evidence of the crime charged, the evidence of threats is not . . . Rule

404(b) evidence.”) Thus, the district court’s decision to allow evidence of

Maass’ threats of violence against others, as evidence of his involvement in the

conspiracy, was not an abuse of discretion, as those threats were part of the

scheme for which Maass was being prosecuted. See DeLuna, 10 F.3d at 1532. 6

      Finally, Maass claims that evidence that some of the members of the

conspiracy were affiliated with the Banditos street gang was both unrelated to his

crime and highly prejudicial. However, that information was inextricably

intertwined with testimony as to the conspiracy’s source of methamphetamine.




      6
         Maass also claims that the government committed prejudicial error during
closing arguments when it referred to portions of the tape that had been stricken
by the court. Maass objected and requested a mistrial. The district court denied
the motion for mistrial, but instructed the jury that the arguments of counsel are
not evidence, and that the jury must decide if the information referred to by the
government was in fact in evidence or not. This minor incident was not so
egregious as to warrant “‘the drastic action of declaring a mistrial,’” thus the
district court did not abuse its discretion in refusing to declare a mistrial. United
States v. Gabaldon, 91 F.3d 91, 94-95 (10th Cir. 1996) (citation omitted).

                                         -9-
Preclusion of references to the Banditos would have made that testimony

confusing and incomplete.

      We find that the district court was well within its discretionary powers in

allowing the challenged evidence.

                           B. Prosecutorial misconduct

      Maass claims that the district court erred by failing to declare a mistrial in

the face of misconduct by the prosecution in questioning Maass’ choice to

exercise his right not to testify, in violation of Griffin v. California, 380 U.S. 609,

615 (1965). Maass asserts that the prosecution acted improperly on three

occasions. First, on redirect examination, the government asked Thomasson if

Maass had ever requested voice exemplars be made so that the voice on audio

tapes the government claims to be Maass’ could be verified. That was in response

to Maass’ attorney raising the issue on his cross-examination. Counsel for Maass

objected to this question on the grounds that it suggested that Maass has a duty to

provide evidence of his voice or take the stand so that the jury can hear his voice

and compare it to the voice on the tapes. He then requested a mistrial. The court

refused to grant a mistrial, but agreed that the government’s question was

improper. The court issued a cautionary instruction to the jury, informing it that

the defendant was not under a duty to provide any evidence whatsoever.




                                         - 10 -
      Second, during the prosecution’s closing statement, counsel for the

government argued that “everyone has a right to plead not guilty. They have the

right to say or not say anything they want in a courtroom.” Again Maass objected

and moved for a mistrial. The district court determined that the prosecution’s

language did not contain any implied criticism of Maass’ decision not to testify,

that it was simply a statement of the rights of the defendant. In addition, the

court gave a curative instruction to the jury, reminding it that the defendant is

under no duty to testify.

      Third, during the governments’ rebuttal closing argument, the prosecutor

suggested that defense counsel’s statement that there was no credible evidence

against Maass belied the fact that there was an immense amount of evidence

against him and showed a lack of understanding of the term “beyond a reasonable

doubt.” Maass’ counsel objected to this argument on the basis that this was a

personal attack against him and was not a comment on the evidence. The

objection was overruled; nonetheless the district court issued an instruction to the

jury that lawyers were entitled to argue about the evidence, and that was what the

jury was there to consider: the evidence. Maass did not request a mistrial.

      As a general proposition, “‘a criminal conviction is not to be lightly

overturned on the basis of a prosecutor’s comments standing alone.’” United

States v. Oles, 994 F.2d 1519, 1524 (10th Cir. 1993) (quoting United States v.


                                        - 11 -
Young, 470 U.S. 1, 11 (1985)). Instead, we must review the prosecutor’s conduct

in light of the entire record. See id. Relevant to the inquiry is the degree of

prejudice of the prosecutor’s remarks, see United States v. Bermea, 30 F.3d 1539,

1563 (5th Cir. 1994), as well as the strength of the evidence against the

defendant, efforts taken by the trial court to correct the effect of any impropriety

by issuing curative instructions, and whether the conduct was in response to

attack by defense counsel. See Oles, 994 F.2d at 1524.

      The district court did not abuse its discretion in refusing to grant a mistrial

on the basis of the government’s implication before the jury that the defendant

had a duty to provide voice exemplar evidence. The prejudice of this conduct,

taken in context, is not immediately apparent, and the district court acted

promptly and firmly to cure any prejudicial effect it might have had. Likewise,

the government’s comment during closing that everyone has a right to plead not

guilty is not on its face prejudicial. Again, any prejudicial impact this comment

may have carried was negated by the district court’s curative instructions. Given

the weight of the evidence against Maass, the relative innocuousness of these

incidents, and the district court’s issuance of curative instructions, it is clear that

the district court did not abuse its discretion in refusing to grant a mistrial.

      As for the government’s comment during closing rebuttal that defense

counsel suffered “confusion about [the concept of] beyond a reasonable doubt,”


                                         - 12 -
Mass asks us to subject this conduct to de novo review under United States v.

Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996). While it is true that counsel for

Maass objected to the comment and did not request a mistrial, he objected on the

ground that the comment was a personal attack, and not on the ground that the

comment amounted to a negative remark about his unwillingness to testify, as he

does now on appeal. Therefore, we review this claim for plain error under United

States v. Russell, 109 F.3d 1503, 1514 (10th Cir. 1997).

        This statement was nothing more than the argument of a lawyer, here a

prosecutor responding to his opponent’s claim that the government had failed to

meet its evidentiary burden. As the district court told the jury in response to

Maass’ objection, “This is not about lawyers arguing about lawyers. This is about

lawyers arguing about the evidence and to the extent that they are arguing about

the evidence is totally appropriate.” The district court was correct. This

statement cannot fairly be interpreted as a comment on the defendant’s refusal to

testify. The statement by the prosecution that Maass’ attorney misunderstands the

concept of “beyond a reasonable doubt” did not prejudice Maass and therefore did

not constitute plain error.




                                        - 13 -
             C.    The district court’s failure to review Thomasson’s
                   personnel file in camera

      Maass claims that the district court abused its discretion in refusing to

order the government to turn over Thomasson’s file for review by Maass or to

examine the personnel file in camera for exculpatory evidence.

      A trial court’s decision not to conduct an in-camera inspection of materials

is reviewed for abuse of discretion. See United States v. Hanif, 1 F.3d 998, 1002

(10th Cir. 1993). Here, the prosecutor explicitly represented to the court that the

BATF had reviewed Thomasson’s personnel file at its direction and had found no

evidence that Agent Thomasson used illegal drugs or any other Brady material.

Maass introduced no evidence that Agent Thomasson’s file did contain evidence

of drug use or other Brady material. Although Maass introduced some evidence

dehors the personnel file of Agent Thomasson suggesting that Agent Thomasson

may have used drugs during the undercover investigation of Maass, Maass

introduced no evidence that such drug use would be revealed in Agent

Thomasson’s personnel file. The district court conducted a hearing on Maass’

Brady request and listened to at least some of the tapes that Maass proffered to

support his Brady claim. During the hearing the prosecution continued to assert

that there was no Brady material in the requested file. The district court

concluded that the tapes did not corroborate Maass’ claims and that there was no

evidence tending to establish that the prosecution had withheld Brady material.

                                       - 14 -
On the basis of this record, we conclude that there was no abuse of discretion by

the district court.

                               II. Sentencing issues

         A. Enhancement of sentence for the killing of Sherrie Holmes

       Maass claims that the court erred in enhancing his sentence by including

the murder of Ms. Holmes as conduct related to the drug distribution crime for

which he was convicted. We find that the district court did not abuse its

discretion in doing so.

       In reviewing the district court's application of the Sentencing Guidelines,

we review the court’s factual determinations for clear error and its legal

conclusions de novo. See United States v. Cuthbertson, 138 F.3d 1325, 1326

(10th Cir. 1998). Moreover, “determination of whether prior conduct is relevant

conduct is a pure question of fact for the district court to determine.” Id.

Sentencing for the trafficking of drugs, including conspiracy, attempt, and

possession with intent to traffic drugs, is controlled by U.S.S.G. § 2D1.1. That

section includes a cross-reference which applies “[i]f a victim was killed under

circumstances that would constitute murder under 18 U.S.C. § 1111 had such

killing taken place within the territorial or maritime jurisdiction of the United




                                        - 15 -
States. . . .” U.S.S.G. § 2D1.1(d)(1). 7 In such cases, the sentencing court is to

“apply §2A1.1 (First Degree Murder).” Id. In turn, U.S.S.G. § 2A1.1 simply

states “Base offense level: 43.” Thus, if the district court finds by a

preponderance of the evidence that a victim was murdered in relation to the

federal crime or crimes for which the defendant was convicted, it must apply a

base offense level of 43. 8 See United States v. Crump, 120 F.3d 462, 467-68 (4th

Cir. 1997).

      In reaching its sentencing decision, the court may consider conduct of

which the defendant has been acquitted, see United States v. Watts, 117 S. Ct.

633, 638 (1997) (per curiam), as well as conduct for which the defendant has not

been charged, see United States v. Yarnell, 129 F.3d 1127, 1137 (10th Cir. 1997).

      7
          18 U.S.C.A. § 1111(a) (West Supp 1997) reads:

              Murder is the unlawful killing of a human being with
              malice aforethought. Every murder perpetrated by poison,
              lying in wait, or any other kind of willful, deliberate,
              malicious, and premeditated killing; or committed in the
              perpetration of, or attempt to perpetrate, any arson, escape,
              murder, kidnaping, treason, espionage, sabotage, aggravated
              sexual abuse or sexual abuse, burglary, or robbery; or
              perpetrated from a premeditated design unlawfully and
              maliciously to effect the death of any human being other than
              him who is killed, is murder in the first degree.

              Any other murder is murder in the second degree.
      8
       Under the Guidelines, sentencing at level 43, “absent any downward
adjustments or departures, requires the district court to impose a life sentence.”
United States v. Crump, 120 F.3d 462, 467 n.3 (4th Cir. 1997).

                                        - 16 -
 So long as the district court finds by a preponderance of the evidence that the

conduct in question occurred, and so long as the guidelines permit the conduct to

be considered in calculating the sentence, the sentencing court may rely upon that

conduct during sentencing. See Watts, 117 S. Ct. at 638; Witte v. United States,

515 U.S. 389, 397-98 (1995).

      The key question we must ask is whether the district court clearly erred in

finding that Maass’ murder of Ms. Holmes was “relevant conduct” to his drug

trafficking crimes. Under U.S.S.G. § 1B1.3(a)(1), relevant conduct, as well as the

cross-referenced conduct in Chapter Two (including § 2D1.1) is determined on

the basis of whether the “acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or wilfully caused by the

defendant . . . occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or

responsibility for that offense.” 9 The district court did not err in finding that


      9
         Maass suggests that the correct analysis of relevant conduct is found in
U.S.S.G. § 1B1.3(a)(2), i.e., that the killing was relevant conduct only if it was
part of the “same course of conduct or common scheme or plan” as Maass’
methamphetamine distribution activities. However, § 1B1.3(a)(2) only applies to
offenses that would require grouping under § 3D1.2(d). All offenses found in
Chapter Two, Part A, of the Guidelines are specifically excluded from grouping
under § 3D1.2(d), and because murder is found in § 2A1.1, the language of
§ 1B1.3(a)(2) cannot apply when determining whether a murder was relevant
conduct to a drug distribution offense. For this reason, we analyze this question
under the language of § 1B1.3(a)(1). See United States v. Cuthbertson, 138 F.3d
                                                                       (continued...)

                                         - 17 -
Maass murdered Ms. Holmes and that her killing was conduct relevant to his drug

distribution activities. 10

       Maass argues that the district court erred in concluding that the murder

occurred during the commission of his drug trafficking crimes because the murder

did not occur concurrently with any identifiable drug distribution acts. However,

the evidence before the district court showed that Maass murdered Ms. Holmes

because he had learned that she may have gone to the police with information

about his drug dealing activities. Before murdering her, Maass interrogated Ms.

Holmes in an effort to find out just what the police knew about his drug-dealing

activities. 11 Shortly after the murder, apparently confident that the police were


       (...continued)
       9

1325, 1327 (10th Cir. 1998).
       10
         Maass also asserts that the district court improperly found the killing of
Ms. Holmes to be conduct relevant to his conspiracy conviction, because it failed
to enhance his co-conspirators’ sentences for that killing as well. However, at
sentencing, the district court did not explicitly relate the killing to the conspiracy
conviction but rather to Maass’ own drug distribution activities. This is sufficient
to support the enhancement of Maass’ sentence.
       11
            The relevant finding of the district court at Maass’ sentencing was as
follows:
              The Court has heard testimony of Mr. Maass’ participation
       in the murder of a 23 year old woman, Sherry Holmes, in furtherance
       of his drug distribution activity. Miss Holmes’ body was found on
       January 4, 1995, in southern Colorado. Evidence . . . presented
       today . . . [indicates] that Miss Holmes was murdered because she
       agreed to act as an informant for the police as to the drug trafficking
       activities of the Defendant Maass. Maass expressed his willingness
                                                                        (continued...)

                                         - 18 -
not aware of his dealings with Thomasson, Maass met with Thomasson to set up a

methamphetamine deal. Thus, even if his killing of Ms. Holmes was not done

during the actual commission of a drug distribution crime, it most certainly was

done in preparation for such crimes as well as “in the course of attempting to

avoid detection or responsibility for” his drug trafficking offenses. U.S.S.G. §

1B1.3(a)(1). The district court did not abuse its discretion in imposing an

offense level of 43 as required by U.S.S.G. §§ 2D1.1(d)(1) and 2A1.1. 12




      11
        (...continued)
      to kill people in furtherance of his narcotics business. That was evidence
      in the trial. Maass told Thomasson that anyone in his organization better
      keep his mouth shut or they would die in a heart beat, and also made the
      threat to the civilians that was earlier alluded to.
              In the summer of 1994 Maass told Thomasson he was concerned
       there was a snitch in his organization, and he wanted to take some people
      out. It appears that investigation by Douglas and Elbert County officers
      revealed that an associate of Maass discovered a note written by a law
      enforcement officer, indicating Sherry Holmes had agreed to become an
      informant. This fact was made known to Maass. Evidence indicated that
      he expressed concern as to whether or not Holmes had been responsible for
      his arrest. . . . [A]ccording to witnesses, Maass conducted a lengthy
      interrogation of Sherry Holmes attempting to determine what she had told
      the police. He took her to Elbert County, where she was shot five times in
      the head with a small caliber pistol, stabbed in the back, peanut butter
      spread on her face and finger tips, in an apparent attempt to have wild
      animals disfigure the body and disguise the identity.



      12
         In a related matter, we hereby deny the government’s Motion to Strike
portions of Maass’ Opening Brief.

                                       - 19 -
         In the alternative, Maass claims that the cross-reference provision of

U.S.S.G. § 2D1.1(d)(1) violates his constitutional rights because it subjects him to

double jeopardy, i.e., double punishment for the single act of murdering Ms.

Holmes. A claim that a sentence subjects a criminal defendant to double jeopardy

is reviewed de novo. See United States v. Hawley, 93 F.3d 682, 687 (10th Cir.

1996).

         The Supreme Court has held that reliance upon prior criminal activity to

enhance a defendant’s sentence does not function to punish the prior criminal

conduct, therefore such reliance on prior criminal activity in sentencing does not

give rise to a double jeopardy claim. See Witte, 515 at 400; accord Hawley, 93

F.3d at 688. Thus, the cross-referencing provision of § 2D1.1(d)(1) does not

violate the Double Jeopardy Clause of the Constitution. 13



        Maass argues that the relevant conduct here resulted in a sentence
         13

enhancement substantially greater than the sentence range he would have
otherwise been subject to, thus the sentence enhancement “tail” in effect was
improperly allowed to “wag the dog” of the sentence for his convictions. See
United States v. Lombard, 72 F.3d 170, 176-83 (1st Cir. 1995); see also Watts,
117 S. Ct. at 637 n.2 (listing cases); McMillan v. Pennsylvania, 477 U.S. 79, 88
(1986). We need not address this claim because it is clear that the sentence “dog”
based on Maass’ underlying convictions is much too large to be wagged by any
enhancement “tail,” even that of life imprisonment.
      Maass’ sentence on his weapons charges under 18 U.S.C. § 924(c) alone
amounted to a 45-year sentence, to run consecutively to his other sentences. If, as
Maass claims, he would have received 78 to 151 months’ imprisonment for his
drug crimes had the court not taken the murder of Ms. Holmes into account, this
amounts to a minimum sentence of 51 years. Given that Maass was 35 years old at
                                                                      (continued...)

                                         - 20 -
                           B. Other sentencing issues

      Maass claims that the district court erred in its calculation of the total

amount of methamphetamine involved, and in enhancing his offense level for

being a leader or organizer. Because, as discussed above, we find that the district

court properly imposed a life sentence in this case, we need not address these

challenges to the court’s sentencing decision.



                                  CONCLUSION

      For the above reasons, Maass’ conviction is AFFIRMED and his sentence is

AFFIRMED.


      13
         (...continued)
the time of sentencing, a 51-year sentence is the functional equivalent of a life
sentence. See United States v. Bailey, 97 F.3d 982, 985 (7th Cir. 1996) (taking
judicial notice that in 1992 a 65-year-old white male in the United States had a
life expectancy of approximately 80.4 years) (citing Bureau of the Census, United
States Dept. of Commerce, Statistical Abstract of the United States: 1995 86
(115th ed. 1995)).
       Maass also claims that the district court’s reliance upon his murder of Ms.
Holmes to enhance his sentence violates an internal policy of the United States
Justice Department known as the “Petite policy.” According to Maass, under this
policy the Justice Department restrains itself from prosecuting criminal acts that
were the ingredients of prior state prosecution against the same individual. Maass
asks us to construe this internal agency policy as prohibiting the district court
from relying upon his state murder conviction in setting his sentence for his
federal drug distribution crimes. However, a sentencing enhancement is not a
prosecution for the underlying conduct, and in his brief on appeal, Maass admits
that “a sentencing enhancement does not technically fall within the confines of
the Petite policy.” Therefore, Maass’ Petite policy argument is without merit, and
accordingly we decline to consider it further.

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The mandate shall issue forthwith.



                               ENTERED FOR THE COURT

                               David M. Ebel
                               Circuit Judge




                                - 22 -
