                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               October 13, 2006
                              No. 06-11230                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 05-00184-CR-CG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MICHAEL MAURICE WHELAN,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                             (October 13, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

     Michael Maurice Whelan (“Whelan”) appeals his 151-month sentence for
possession of a listed chemical with intent to manufacture methamphetamine

(“meth”), in violation of 21 U.S.C. § 841(c)(1). Whelan raises four issues on

appeal. Whelan challenges (1) the standard of proof applied at sentencing, (2) the

district court’s drug quantity calculation, (3) the enhancement of his sentence for

creating a substantial risk of harm to human life or the environment, and (4) the

reasonableness of his ultimate sentence.

      First, Whelan argues that the district court incorrectly believed that it did not

have the discretion to apply the clear and convincing standard of proof to the drug

quantity calculation. Whelan contends that United States v. Booker, 543 U.S. 220,

125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), did not address the standard of proof

applicable at sentencing, and, even if due process does not require a higher

standard of proof, district courts have the discretion to apply a higher standard.

      We have stated after Booker that the preponderance of the evidence standard

applies to factual determinations made at sentencing. United States v. Woodard,

___ F.3d ___ (11th Cir. Aug. 8, 2006) (noting that sentencing court does not err

when it enhances a sentence under an advisory guidelines scheme based on facts

found by a preponderance of the evidence); United States v. Rodriguez, 398 F.3d

1291, 1296 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005) (“When a defendant

objects to a factual finding that is used in calculating his guideline sentence, such



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as drug amount, the government bears the burden of establishing the disputed fact

by a preponderance of the evidence.”).

      In light of the cases cited above, we conclude that the district court properly

applied the preponderance of the evidence standard to the facts found at

sentencing.

      Second, Whelan argues that the district court erred by failing to estimate

cautiously the drug quantity of 106.4 grams of pseudoephedrine attributed to him.

Whelan notes that some of the drugs seized from him did not have the

pseudoephedrine doses labeled and the district court accepted as evidence (1) the

government’s unauthenticated document from a government website indicating the

pseudoephedrine content of 12-hour pseudoephedrine tablets and (2) testimony that

an officer obtained information about other pills from a poison control center.

Whelan also notes that the court refused to order the government to release the pills

for testing. Finally, Whelan notes that he presented expert testimony that the

quality-control standards for pharmaceutical manufacturers allow for a margin of

error from the doses marked on the packaging.

      “We review the sentencing court’s findings of drug quantity for clear error.”

United States v. Smith, 240 F.3d 927, 930-31 (11th Cir. 2001). “Although

sentencing may be based on fair, accurate, and conservative estimates of the



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quantity of drugs attributable to a defendant, sentencing cannot be based on

calculations of drug quantities that are merely speculative.” United States v.

Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998). District courts may consider

reliable hearsay evidence at sentencing. United States v. Zlatogur, 271 F.3d 1025,

1031 (11th Cir. 2001). We will defer to the district court’s credibility

determinations of witnesses testifying at sentencing. See United States v. Glinton,

154 F.3d 1245, 1259 (11th Cir. 1998). Finally, we review a district court’s denial

of a motion to compel discovery for an abuse of discretion. Holloman v. Mail-Well

Corp., 443 F.3d 832, 837 (11th Cir. 2006).

      On appeal, Whelan only challenges the drug quantity calculation of 37.2

grams of pseudoephedrine obtained from the search of his vehicle, not the 69.2

grams of pseudoephedrine found in the search of his apartment. The district

court’s drug quantity calculation was a conservative and fair estimate based on the

pills’ resemblance in color, shape, size and packaging to other pills possessed by

Whelan that were labeled. Zapata, 139 F.3d at 1359. Moreover, considering that

Whelan waited until after the court had made its drug quantity findings to move to

compel the release of the drugs for testing, the district court did not abuse its

discretion in denying the motion. Holloman, 443 F.3d at 837. Finally, even

accepting Whelan’s expert’s theory at sentencing that drugs may vary in their



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concentration level from the packaging’s labels by as much as 10%, this would not

change Whelan’s base offense level from 32. Thus, we conclude that the district

court did not err in its drug quantity calculation.

      Third, Whelan argues that the district court erroneously enhanced his

sentence for creating a substantial risk of harm to human life or the environment

based on only two of the four guideline factors under U.S.S.G. § 2D1.1, comment.

(n.20): the quantity of chemicals and manner in which they were stored and the

location of the laboratory and number of human lives placed at risk. Whelan

contends that (1) there was no unusually large quantity of hazardous materials

found in his apartment, (2) his expert testified that red phosphorous was not a real

danger, (3) the evidence of ether in the apartment was unclear, and (4) there was no

evidence of the scope or duration of the manufacturing process or the improper

disposal of materials.

      We review factual findings for clear error and the application of the

Sentencing Guidelines to those facts de novo. United States v. Washington, 434

F.3d 1265, 1267 (11th Cir. 2005). The guidelines provide for a three-level

enhancement “[i]f the offense (i) involved the manufacture of amphetamine or

methamphetamine; and (ii) created a substantial risk of harm to (I) human life . . .

or (II) the environment.” U.S.S.G. § 2D1.1(b)(6)(B). The commentary to this



                                            5
section specifies:

      In determining, for purposes of subsection (b)(6)(B) or (C), whether
      the offense created a substantial risk of harm to human life or the
      environment, the court shall include consideration of the following
      factors:

      (i) The quantity of any chemicals or hazardous or toxic substances
      found at the laboratory, and the manner in which the chemicals or
      substances were stored.

      (ii) The manner in which hazardous or toxic substances were
      disposed, and the likelihood of release into the environment of
      hazardous or toxic substances.

      (iii) The duration of the offense, and the extent of the manufacturing
      operation.

      (iv) The location of the laboratory (e.g., whether the laboratory is
      located in a residential neighborhood or a remote area) and the
      number of human lives placed at substantial risk of harm.

Id.., comment. (n.20).

      First, the record demonstrates that the district court explicitly considered all

of these factors in finding that the enhancement applied by noting that for

subsection (i), there was red phosphorous and ether present and for subsection (ii)

that a number of Whelan’s containers only had plastic wrap sealing them, and that

this was insufficient to keep the odors from escaping. For subsection (iii), the

district court found that the drug manufacturing process had taken place and was

ongoing, and for subsection (iv) that the manufacturing process was occurring in



                                           6
an apartment building with people around. Next, the evidence in the record

supports the district court’s factual findings in light of Investigator David Smith’s

testimony as well as Officer Wayne Goolsby’s testimony. Washington, 434 F.3d

at 1267.

      Finally, Whelan argues that his sentence is unreasonable because it is greater

than necessary to achieve the purposes of sentencing. Whelan first notes that the

drug quantity determination based on a preponderance of the evidence increased

the guideline range by more than 50 months. Whelan also argues that the emphasis

on quantity in the sentencing guidelines does not adequately focus on the

defendant’s role in the offense and exacerbates sentencing disparities. He contends

that a sentence below the guidelines was warranted here because he committed the

offense to obtain meth for his personal addiction, drug treatment will provide the

necessary deterrence and punishment, and a lesser sentence would communicate

the seriousness of the offense. Whelan also challenges the district court’s

explanation of his sentence as inadequate.

      We review a defendant’s ultimate sentence for reasonableness. United

States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Among the factors that

a district court should consider are the nature and circumstances of the offense, the

history and characteristics of the defendant, the need for adequate deterrence and



                                           7
protection of the public, the pertinent Sentencing Commission policy statements,

and the need to avoid unwarranted sentencing disparities. See 18 U.S.C.

§ 3553(a)(1)-(7). “[N]othing in Booker or elsewhere requires the district court to

state on the record that it has explicitly considered each of the § 3553(a) factors or

to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). While a sentence within the advisory guideline range is not

per se reasonable, it usually will be reasonable. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005).

      We conclude from the record that Whelan’s 151-month sentence is

reasonable. First, the district court sentenced Whelan at the bottom of the

guideline range. Talley, 431 F.3d at 788. The district court also considered

Whelan’s personal history and characteristics of being a drug addict, but

recognized the nature of the offense and the need for adequate deterrence and

punishment in commenting that “[t]he manufacture of methamphetamine is a

dangerous, dangerous business. And your decision to do that to feed your addiction

was a very serious one.” Although the district court did not explicitly mention the

§ 3553(a) factors, it stated that it had considered the statutory purposes of

sentencing and adequately explained the sentence contrary to Whelan’s argument.

Scott, 426 F.3d at 1330.



                                           8
      With respect to Whelan’s argument regarding the drug quantity, we already

have concluded that the factual finding was not clearly erroneous. With respect to

his general argument regarding the guidelines’ focus on drug quantity, we have no

authority to change Congress’s judgment to punish crack cocaine offenders 100

times more severely than powder cocaine violators. United States v. Williams, ___

F.3d ___ , No. 05-13205 (11th Cir. July 21, 2006). Thus, we similarly lack the

authority to override Congress’s emphasis on drug quantity in the guidelines.

      For the above-stated reasons, we affirm Whelan’s sentence.

      AFFIRMED.




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