                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                           March 27, 2007
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 05-2345
                                                       (D.C. No. 97-CR-607-LH)
 DAVID CHRISTOPHER WILLIAMS,                                 (New Mexico)

           Defendant-Appellant.



                                 ORDER AND JUDGMENT *


Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ,
Circuit Judge.




       David Christopher Williams (the defendant), and two co-defendants, Orville

Dwyer and Eric Derrick Holliday, were jointly charged in a two-count indictment filed in

the United States District Court for the District of New Mexico as follows: (1) attempting

to possess 100 or more kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B); and (2) conspiracy to possess with an intent to distribute 100 or more

kilograms of marijuana in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Dwyer and




       *
        This order and judgment is not binding precedent, except under the doctrines of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.
Holliday pled guilty and were sentenced to terms of imprisonment of 60 and 37 months,

respectively.

       The defendant initially also pled guilty to both counts of the indictment, pursuant

to a plea agreement wherein he agreed to “cooperate” with the government. He

subsequently moved to withdraw his plea of guilty, which motion was granted. The

defendant thereafter was convicted by a jury on both counts.

       The pre-sentence report (PSR) stated that the “instant case involved negotiations

for 2,500 pounds of marijuana, the equivalent of 1,134 kilograms” and accordingly set

defendant’s base offense level at 32. The PSR then increased the defendant’s base

offense level by 2 levels because he was an organizer, and an additional 2 levels for

obstruction of justice, setting his total offense level at 36. The defendant’s criminal

history category was set at III. The guideline range for a person with a total offense level

of 36 and a criminal history category of III is imprisonment for 235 to 293 months.

       At sentencing, the defendant objected to the provisions of the PSR that set his base

offense level at 32, arguing that the “negotiations” did not involve 2,500 pounds of

marijuana, and in fact only involved about 500 pounds of marijuana. The district court

denied defendant’s objections, “adopted” the PSR “without change,” and sentenced

defendant to imprisonment for 235 months on each count, to be served concurrently. The

defendant appealed.

       In United States v. Williams, 374 F.3d 941 (10th Cir. 2004), this court affirmed the

defendant’s conviction, but remanded the case to the district court to conduct a new

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sentencing hearing, “find ” the quantity of marijuana actually “agreed to,” rather than

merely adopting the PSR recommendation, and then re-sentence the defendant, “if

necessary.” Specifically, in that regard, the Court spoke as follows:

       CONCLUSION
       For all of the aforementioned reasons, we AFFIRM the district court’s
       imposition of a two-level sentencing enhancement for obstruction of justice,
       its denial of a downward departure for substantial assistance and its denial
       of an affirmative defense instruction on withdrawal from the conspiracy.
       However, the sentence necessarily depends upon the quantity of marijuana
       agreed upon in the conspiracy. That determination was not made of record
       so we must remand for the district court to rule on that issue, clarify the
       record and, if necessary, re-sentence the defendant. We AFFIRM in part,
       REVERSE in part, and REMAND for a ruling under U.S.S.G. § 6A1.3(b)
       and re-sentencing, if necessary.

       Following remand, the district court, as directed by us, held a second sentencing

hearing, at which time no additional testimony was taken. The district court then

proceeded to “find,” inter alia, that the defendant conspired with others to possess 2,500

pounds or 1,134 kilograms, of marijuana. Specifically, the court spoke as follows:

       Based on Application Note 12 of United States Sentencing Guidelines
       Section 2D.1, quote, “In an offense involving an agreement to sell a
       controlled substance, the agreed-upon quantity of the controlled substance
       shall be used to determine the offense level.” And Application Note 12
       says, “In a reverse sting, the agreed-upon quantity of controlled substance
       would more accurately reflect the scale of the offense because the amount
       actually delivered is controlled by the government, not the defendant.”
       Therefore, I will find that the defendant conspired with others to possess
       2,500 pounds or 1,134 kilograms of marijuana.

       The district court accordingly re-set defendant’s initial base offense level at 32 and

increased that figure by 2 levels based on defendant’s “aggravating role” in the

commission of the offense and 2 more levels for obstruction of justice, making an

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adjusted offense level of 36. As stated, an offense level of 36 and a criminal history

category of III results in a guideline range of imprisonment for 235 to 295 months.

However, the district court then noted that the defendant had “assisted” the government in

the prosecution of other crimes, and sentenced defendant to imprisonment for 180 months

on each of the 2 counts, to be served concurrently.

       In our view, the district court, on remand, followed our directions as set forth in

our remand order. Counsel’s suggestion that the district court’s finding on the amount of

the marijuana to be purchased by the defendant from the government’s undercover agent

is not supported by the record is foreclosed by the following comment by this court in its

remand to the district court, where we spoke as follows:


       The critical question is whether the scope of the conspiracy involved more
       than the 100 pounds negotiated for initial delivery. Clearly, it did. The
       initial 100 pounds was directly tied to, at least, 300 pounds more. Upon
       remand, the district court may find that the agreed upon amount was up to
       2,500 pounds.




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Judgment affirmed.1


                                           Submitted for the Court,

                                           Robert H. McWilliams,
                                           Senior Circuit Judge




       1
          On March 3, 2006, the same date as the defendant filed his opening brief in this
court, his counsel also filed a Motion to Supplement the Appellate Record. That motion
was thereafter “provisionally granted” by this court and the material sought to be added to
the record on appeal was made. Some of the matters raised in the motion were before the
district court when it originally sentenced the defendant and when the defendant was re-
sentenced. Others were not. One aspect of the latter merits brief comment. In that
regard, counsel argues that the “agreed upon amount of marijuana” determined by sister
courts which handled the cases and sentences of defendant’s co-conspirators, Dwyer and
Holliday, was a lesser figure than that found by the judge in the instant case. Suffice it to
say, such a determination by a different judge in a case involving one of the defendant’s
co-conspirators has no bearing on the present case in view of our remand order. We are
here concerned with this defendant. It should be remembered that in this court’s opinion
wherein we remanded this case for re-sentencing, as previously stated, we stated that the
record, as then made, did permit a finding that the “agreed upon amount” in the present
case was “up to 2,500 pounds.” United States v. Williams, 374 F.3d 941 (10th Cir. 2004).
It was in that context that we remanded to the district court to determine whether, on the
record as made, it would or would not “so find.” It has now “so found.”

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