                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JULY 10, 2007
                             No. 06-16655                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                 D. C. Docket No. 04-00055-CR-1-HLM-4

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

JORGE TAFOLLA BUENROSTRO,
a.k.a. Jorge Tafolla,

                                                     Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                               (July 10, 2007)

Before BARKETT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
       Jorge Buenrostro appeals his 240-month sentence, imposed after

resentencing, for illegal methamphetamine distribution, 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii), 851. On appeal, he argues, among other things, that: (1) the district

court violated his Sixth Amendment confrontation rights by relying on a

stipulation of fact1 in finding the methamphetamine’s purity level; (2) the district

court plainly erred at resentencing by failing to find that the drug purity level used

at resentencing was foreseeable; and (3) the district court plainly erred at

resentencing by failing to calculate his sentencing range.

       The relevant facts are as follows: Jorge Tafollow Buenrostro was indicted

for, among other things, distribution of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 851. The indictment also alleged that

Buenrostro had been convicted in Texas in 2000 of cocaine possession, a crime

punishable by imprisonment for more than one year, and it gave notice that the

government was seeking an enhancement under 18 U.S.C. § 851 with respect to the

methamphetamine charge.



       1
           We reject Buenrostro’s argument that the stipulation was not a concession as to the
methamphetamine’s purity level but rather was an agreement to what a forensic chemist would
testify if called at his trial. The unambiguous language of the stipulation contradicts this claim.
We also reject Buenrostro’s argument that the court plainly erred in failing to allow him to
withdraw the stipulation, since it is reasonable to conclude that he actually knew at the time that
he was stipulating to the purity level of the drugs, and that he intended to do so, given the
unambiguous language of the stipulation and that he was represented by counsel throughout the
criminal proceedings below.

                                                 2
      At trial, the parties stipulated that the methamphetamine mixture weighed

443.6 grams, and that it “had a 24 percent purity level such that the amount of pure

methamphetamine [was] . . . 106.8 grams.” The government did not present any

additional evidence or testimony during trial regarding the purity level of the drug

mixture, nor did it call the DEA forensic chemist who tested the mixture to testify.

      The jury ultimately returned guilty verdicts on the methamphetamine

distribution charge, and, in a special verdict form, found that Buenrostro

distributed 443.6 grams of a mixture containing a detectable amount of

methamphetamine – the amount of drugs contained in the stipulation of fact.

However, the special verdict form did not ask the jury to determine, and the jury

did not determine, the purity level of the drug mixture.

      After sentencing, Buenrostro appealed all of his convictions, including for

methamphetamine distribution, and the government cross-appealed only his

sentence for this one count. We ultimately affirmed Buenrostro’s convictions, but

vacated his sentence for methamphetamine distribution and remanded the case for

resentencing. We concluded that the district court clearly erred in finding that it

did not have the authority to find by a preponderance of the evidence the amount of

actual methamphetamine for which Buenrostro was responsible. See United

States v. Buenrostro, No. 05-15259 (11th Cir. 2006) (unpublished).



                                           3
      At resentencing, the district court again considered the amount of actual

methamphetamine for which Buenrostro should be held accountable, and found, by

a preponderance of the evidence, that he was responsible for 443.6 grams of a

methamphetamine mixture, but one with a 24% purity level – as stated in the

stipulation of fact. Accordingly, the district court determined that Buenrostro was

responsible for 106.8 grams of pure methamphetamine.

      Without expressly identifying Buenrostro’s sentencing range, the district

court sentenced Buenrostro to 20-years’ (or 240-months) imprisonment on the

methamphetamine distribution count, explaining that this was “the minimum

mandatory sentence it must impose” pursuant to 18 U.S.C. § 841(b)(1)(A).

      The court explained that it had considered the factors outlined in 18 U.S.C.

§ 3553(a) in resentencing Buenrostro, and it explicitly mentioned the need to

reflect the seriousness of the offense; to promote respect for the law; and to provide

just punishment for the offense, to afford adequate deterrence to criminal conduct,

and to protect the public from further crimes of the defendants; as well as the

nature and circumstances of the offense and the history and characteristics of

Buenrostro. Buenrostro timely appealed. We affirm .

      First, The district court did not violate Buenrostro’s Sixth Amendment

confrontation rights by relying on the stipulation to determine the purity level of



                                           4
the methamphetamine mixture, rather than requiring the government to call the

DEA forensic chemist who analyzed the mixture as the right to confrontation does

not exist in non-capital sentencing hearings. United States v. Cantellano, 430 F.3d

1142, 1144 (11th Cir. 2005), cert. denied, 126 S.Ct. 1604 (Mar. 20, 2006).

      Second, we also conclude that the district court did not plainly err in failing

to make a foreseeability finding as to the purity level of the methamphetamine

mixture. The district court held Buenrostro accountable only for the

methamphetamine, and the purity thereof, for which he was directly involved – it

did not consider any potentially relevant conduct or drug amounts stemming from

“jointly undertaken criminal activity.” Thus, the district court did not err, much

less plainly err, in this regard. See U.S.S.G. § 1B1.3(a); id. at cmt. n.2.

      Finally, we conclude that, even assuming arugendo that the district court

erred in failing to identify expressly Buenrostro’s sentencing range during

resentencing, it did not plainly err in this regard, because the error did not affect his

substantial rights. See United States v. Underwood, 446 F.3d 1340, 1343 (11th

Cir.), cert. denied, 127 S.Ct. 225 (Oct. 2, 2006) (citation omitted). As noted above,

the district court properly relied on the trial stipulation to find by a preponderance

of the evidence that Buenrostro was responsible for 446.3 grams of a

methamphetamine mixture with a 24% purity level, or 106.8 grams of pure



                                            5
methamphetamine. Based on these findings, Buenrostro’s base offense level

would have been 32. See U.S.S.G. § 2D1.1(c)(4).

      With an adjusted offense level of 32 and a criminal history category of II,

Buenrostro’s sentencing range ordinarily would have been 135-168 months

incarceration. This range normally would exceed the 10-year statutory minimum

sentence on the methamphetamine distribution count, but because Buenrostro was

a convicted drug felon, the 10-year statutory minimum had to be doubled to 20

years, which did exceed the applicable range. See 21 U.S.C. §§ 841(b)(1)(A), 851.

For this reason, the 20-year statutory minimum became the sentencing range

pursuant to U.S.S.G. § 5G1.1(b), and so Buenrostro’s 20-year sentence was the

lowest possible sentence that the district court could impose. Moreover, the district

court explained that it had considered the § 3553(a) factors in imposing

Buenrostro’s sentence, and did not indicate that Buenrostro was entitled to a

downward variance.

      In light of this, Buenrostro cannot show that there is a reasonable probability

that he would have received a lower sentence had the district court expressly

identified his sentencing range. Therefore, his substantial rights were not affected

by the court’s error, if any, See Underwood, 446 F.3d at 1343.




                                          6
AFFIRMED.2




       2
         We also reject Buenrostro’s final argument that the district court violated his Sixth
Amendment right to a jury by finding facts at sentencing under a preponderance of the evidence
standard, in light of the Supreme Court’s recent decision of Cunningham v. California,
549 U.S.__, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). The district court here was expressly
permitted to do this under McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d
67 (1986), since Buenrostro’s imposed sentence fell below the statutory maximum of life
imprisonment. Moreover, because Cunningham did not expressly overrule McMillan, and we
are forbidden from finding that Cunningham implicitly overruled that decision, McMillan
remains good law. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484,
109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989) (explaining that if a Supreme Court precedent
“has direct application in a case . . . the Court of Appeals should follow the case which directly
controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions”).


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