                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 29 2003
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-4218
 v.
                                                 (D.C. No. 2:02-CR-141-ST)
                                                         (D. Utah)
 JOSE MARTI GUZMAN,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.



      In this direct criminal appeal Appellant Jose Marti Guzman seeks to contest

the sentence he received below after pleading guilty on three counts of

distribution of methamphetamine and one count of possession with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Appellant

argues that the presentence report presented to the district court did not identify


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The 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.
the purity of the methamphetamine mixtures sold by Appellant in each

transaction, and thus provided an insufficient basis to support the district court’s

calculation of the total amount of pure methamphetamine trafficked by the

Appellant. Appellant claims that the district court should instead have used the

gross weights of the methamphetamine mixtures, and applied the much lower

conversion ratio for such mixtures to arrive at the appropriate “marijuana

equivalency” for determining Appellant’s offense level under § 2D1.1 of the

Sentencing Guidelines.



Discussion

        Appellant concedes that he did not file any objections to the drug quantity

determination in the presentence report. (Aplt. Br. at 2.) Where counsel fails to

object before the sentencing court, we review the application of the sentencing

guidelines for plain error. United States v. Easter, 981 F.2d 1549, 1555 (10th Cir.

1992). Plain error review, however, is not appropriate when the alleged error is

one contained in the lower court’s findings of fact, so that Appellant’s failure to

object before the district court constitutes a waiver of that issue on appeal. Id. at

1556.

        Appellant styles his appeal as challenging the district court’s application of

the wrong guideline provision in calculating the marijuana equivalency to


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determine the appropriate base offense level. Even a cursory examination of his

argument, however, quickly reveals that Appellant’s argument is fundamentally

one disputing the district court’s conclusions of fact regarding the amount of

drugs involved in Appellant’s crime. The presentence report accepted by the

district court clearly stated that the total amount of pure methamphetamine

involved in Appellant’s conviction was 355.71 grams. Appellant now claims that

this total drug amount was not sufficiently supported by the record before the

district court. This is a challenge to the district court’s findings of fact, and

Guzman’s failure to raise it below has waived the issue on appeal. 1 Appellant

also argues that the district court should have used the Guidelines’ alternative

marijuana equivalency formula for methamphetamine mixtures of unknown purity.

However, since this argument rests entirely on his assertion that the pure drug


      1
        Although Appellant’s waiver prevents us from reaching the merits of his
claim, we note that there is in fact ample record evidence to support the
sentencing court’s figure of 355.71 grams of pure methamphetamine. Appellant
argues that the failure of the government to identify the specific purities of the
methamphetamine mixtures involved in each count to which he pled guilty makes
it impossible to calculate the total amount of pure methamphetamine involved.
As Appellant himself observes, however, when evaluating the quantity of drugs
for which a defendant may be held accountable, estimates are acceptable, as long
as the estimate is supported by facts. United States v. Richards, 27 F.3d 465, 469
(10th Cir. 1994). Here it is undisputed that the purities of four of the five
methamphetamine mixtures sold by Appellant varied from 61 to 66 percent, while
the smaller fifth package weighing 34 grams was 94% pure. Calculating the total
amount of pure methamphetamine using a conservative 61% for all four larger
transactions yields a total of 355.23 grams. The district court’s figure of 355.71
grams is clearly supported by the record.

                                          -3-
total was unsupported, our conclusion that he has waived a challenge to the

district court’s findings on the pure drug amounts necessarily defeats this

argument as well. 2

      Accordingly we AFFIRM the sentence and judgment of the district court.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




      2
        There does appear to be an error in the lower court’s application of the
marijuana equivalency conversion tables, but it is not the error Appellant
imagines. According to the equivalency tables in U.S.S.G. § 2D1.1, one gram of
pure methamphetamine converts to 20 kg of marijuana. The presentencing report
appears to have used a conversion factor of 1 gram = 10 kg. Since the Guidelines
classify an offense involving between 3,000 kg and 10,000 kg of marijuana as a
level 34 offense, however, using the 20 kg conversion factor to arrive at a total
marijuana equivalency of 7,287.54 kilograms would not alter Appellant’s base
offense level, and we do not reach this issue because the government did not
appeal this issue.

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